The law firm was unequivocal. It refused to take the case against General Motors involving a car crash that killed 18-year-old Natasha Weigel, saying that the value of her life in a lawsuit was too small to justify the expense and risk of litigation.þþHer family was stunned. A Wisconsin police investigator had looked into why the car’s airbags had not opened when it swerved off a road in 2006 and plowed into trees, killing Ms. Weigel and a second teenager. The inquiry uncovered critical clues: The car’s ignition switch had powered off seconds before the accident, and G.M. had received reports of similar incidents, pointing to a possible defect.þþBut when Ms. Weigel’s family shared that report with a major plaintiff’s law firm in Milwaukee, the firm responded with cold, hard math.þþ“Because of the $350,000 maximum recovery for loss of society in Wisconsin and the extreme expense of litigating the case against General Motors, our office is unwilling to become involved in this matter,” Daniel A. Rottier, a partner in the firm, Habush, Habush & Rottier, wrote in May 2007.þþToday, at least 42 people are known to have died in crashes linked to the defective ignition switch, and both G.M. and federal safety regulators have come under fire for allowing the danger to linger for more than a decade. But the experience of some accident victims and their families shows that other opportunities to raise public alarm bells — through the legal system — were also lost.þþThe family of Amy Rademaker, the other teenager killed in the Wisconsin crash, was also unable to find a lawyer to take on G.M. unless they financed the case themselves, said Ken Rimer, Ms. Weigel’s stepfather. Lawyers said they were aware of six ignition-related lawsuits that the automaker had settled out of court, including some under arrangements that barred public disclosures about them.þþ“This is so frustrating to me,” Mr. Rimer said. “If we had gone to litigation, this would have gone to the forefront. We could have saved lives.”þþCompanies, lawyers and judges have long faced criticism for suppressing information contained in lawsuits about product dangers. However, legal experts said that factors such as tort reform and rising lawsuit costs might be further dimming the legal system’s role in bringing such risks to light.þþThose experts said that the incentives for plaintiffs’ lawyers to invest large sums of money in a case that may or not serve as a kind of legal canary in a coal mine have been diminished. “It is harder to win,” added John C. P. Goldberg, a law professor at Harvard University. Beginning several decades ago, companies, insurers and others, pointing to instances of excessive jury awards and frivolous lawsuits, pushed state lawmakers to pass measures that would reduce awards and limit filings. Since then, many states have capped awards for noneconomic damages such as pain and suffering, limited punitive damage awards or changed how liability is assessed.þþSupporters of the changes say they are not intended to bottle up safety information.þþ“If anything, plaintiff’s lawyers have become aggressive in finding defective products,” said Victor E. Schwartz, a defense lawyer and an executive of the American Tort Reform Association, an advocacy group. Today, he added, lawyers also can use technological tools like the Internet to spot cases.þþBut some lawyers say the changed financial calculus has affected the kinds of cases being pursued.þþ“You cannot afford to take an auto products case unless there is a death or serious injury,” said James E. Butler Jr., a plaintiff’s lawyer whose firm was involved in a case against G.M. that the company later counted as one of those linked to the faulty ignition switch.þþIn the end, the defect’s public disclosure — and the recall of 2.2 million G.M. vehicles in the United States — was set in motion by a lawsuit filed in Georgia, a state that does not place strict caps on damages in product liability lawsuits.þþ“It increases the ability of a plaintiff to bring a claim,” said the lawyer, Lance Cooper of Marietta, Ga., who filed a lawsuit in 2011 in the case of 29-year-old Brooke Melton, who died in a Chevrolet Cobalt crash.þþInitially, Mr. Cooper thought that Ms. Melton had lost control of her vehicle when its power steering failed. G.M. lawyers also did not move to settle the case since it involved a side impact collision, so the car’s airbags would not have been expected to deploy. In other accidents, a failure of the airbags to deploy was a telltale sign that the vehicle’s ignition had powered off.þþAs a result, Mr. Cooper got to push his lawsuit forward, engaging an engineering expert who discovered the flawed Cobalt ignition switch and its role in causing the crash. Then after he had extracted damaging pretrial testimony from a G.M. engineer, the carmaker in 2013 offered Ms. Melton’s family $5 million to settle the action, but insisted that all the information uncovered in the case be kept secret. Several months later, G.M. disclosed the defect and started recalling vehicles.þþIn previous years, G.M. settled other cases under confidential terms. Terry DiBattista recalled a meeting in 2006 that she attended between her lawyer and G.M. representatives after the death of her adopted 16-year-old daughter, Amber Marie Rose, in a 2005 Cobalt crash. þþWhen her lawyer presented the company with engineering data showing that the car’s airbags had not deployed because the vehicle had lost power, G.M. lawyers countered that a court in Maryland, where the accident occurred, would not hold the carmaker liable because Amber had been speeding and drinking.þþStill, G.M. lawyers offered to settle the claim.þþ“They said that out of the kindness of their heart basically they had thrown this figure out but they wouldn’t go a penny more, so take it or leave it,” said Ms. DiBattista, who was barred from revealing the amount but described it as modest.þþAs is often the case in product liability cases, G.M. insisted on settlement terms that require opposing lawyers, victims and their families not discuss the case. As a result, plaintiff’s lawyers handling new claims found it difficult to learn about other incidents.þþBy 2010, King & Spalding, a firm that represented G.M. in Cobalt cases, saw a pattern in the crashes and warned the automaker that it could face large punitive damage awards if the cases went to trial and information about earlier accidents came to light.þþþþThe first warning came in connection with a 2010 lawsuit filed by the family of a nursing student, Hasaya Chansuthus, killed in a Cobalt crash, according a report issued by Anton R. Valukas, who was hired by G.M. this year to review its handling of the ignition defect. King & Spalding lawyers reported that a review by its engineering experts had concluded that certain Cobalts might suffer from a “sensing anomaly” that could prevent airbag deployment, documents cited by Mr. Valukas show.þþ“The facts and circumstances surrounding the investigation into the sensing system ‘anomaly’ that may be present in some Cobalts could provide fertile ground for laying the foundation for an award of punitive damages, resulting in a significantly larger verdict,” a memo written by a King & Spalding lawyer stated.þþG.M. settled the Chansuthus case for an undisclosed sum. A year later, King & Spalding issued a similar warning when another Cobalt lawsuit was filed. Then, in 2012, a different outside defense firm, Eckert Seamans, sounded the same alarm in connection with another Cobalt crash and lawsuit.þþIn that case, a 35-year-old woman, Tonya Lambert, suffered head injuries and broken bones when the Cobalt in which she was riding spun out of control and smashed into trees. Black-box data showed that the car’s ignition switch had shifted position, disabling its airbags.þþ“G.M. will also be forced to contend with other incidents, some of which resulted in deaths, due to the non-deployment of the frontal airbags in the 2005-2007 Cobalt,” the firm wrote. G.M. settled Ms. Lambert’s case for $650,000, a third of that sum going to her lawyer, her family said.þþMs. Lambert said her family felt pushed into making the deal by her lawyer, who warned they could never win in a courtroom. “I cried because I didn’t want to settle,” she said in a recent interview. The lawyer did not return messages seeking comment.þþBoth King & Spalding and Eckert Seamans declined to respond to questions about whether the firms had urged G.M. to recall problem vehicles. The firms referred the inquiries to G.M., and a spokesman for the automaker, James Cain, declined to comment on the outside lawyers’ actions.þþEllen C. Yaroshefsky, a specialist in legal ethics at the Benjamin N. Cardozo School of Law in New York, said that lawyers at the outside firms could have alerted higher-ups inside G.M. or even law enforcement authorities about the Cobalt problem, but were not obligated to do so.þþ“The corporate culture is such that lawyers do not do it because they would never be hired again,” said Ms. Yaroshefsky.þþIn the 2006 Wisconsin accident, as Natasha Weigel lingered in a coma, her family first hired a lawyer, Mark D. Streed, to help them find ways to pay her medical bills. After the girl’s death, Mr. Streed referred the case to Mr. Rottier’s firm, which describes itself as one of the nation’s top product liability firms.þþA few days later, Mr. Rottier told Mr. Streed he was not interested. In a letter to Natasha’s family, Mr. Streed said Mr. Rottier’s firm needed to “see a potential upside recovery well in excess of $1 million” because the costs of pursuing a G.M. case through trial averaged $300,000 and could exceed $400,000. The Milwaukee firm also noted that it had not then heard of other G.M. ignition switch cases.þþIn an interview, Mr. Rottier said the firm’s decision was not unusual. “I’ve told many people,” he said, “that the value of your dead child doesn’t warrant a case. It is a terrible thing to have to do.”þþ
Source: NY Times
