“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
– Thomas Jefferson
“In suits at common law… the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.”- James Madison
It turns out the Founders knew what they were doing. The Founders knew the 7th Amendment could succeed where government would fail. The Founders knew that in a government “of the people, by the people, for the people“, it must be the people who have ultimate authority to hold others – including their government – accountable for wrongdoing.
Where big government can and will fail, the 7th Amendment provides a fail safe. When multi-billion-dollar corporations corrupt and abuse the bureaucracy, the 7th Amendment allows a regular, human person to stand toe-to-proverbial-toe and demand justice.
With the GM ignition switch recall – like so many other areas – big government failed. The process was corrupted. A corporate giant lied. It hid evidence of its wrongdoing. And it made a calculated decision to let people die… in order save less than $1.00.
And who is there to hold GM accountable? Who is there to keep the public safe? Who is there to make sure the problem gets fixed? Trial lawyers and the 7th Amendment.
“He single-handedly set the stage for this recall,” said Sean Kane, an auto-safety analyst who credits [Georgia trial lawyer Lance] Cooper for being the first to create a public record of what GM did with the ignition switch. Kane, the president of … Safety Research & Strategies Inc., has worked with plaintiffs’ lawyers on suits involving sport-utility vehicle rollovers, tire recalls and unintended acceleration in some Toyota Motor Corp. models. He consulted on Cooper’s case against GM.
“But for the things [Cooper] has done, this [recall] doesn’t happen,” Kane said.
– GM Recall Doubled as Georgia Lawyer Pushed U.S. Regulators [Bloomberg News]
GM lied to the government. NHTSA – the agency in charge of policing automakers for safety – ignored the warning signs. But a trial lawyer dug deep… and he did it on his own dime. Lance Cooper combed through 32,000 pages of documents. He hired engineers and other experts to examine the defective ignition switch. He discovered the defect. He wrote letters to NHTSA. And, ultimately, was the primary reason this deadly problem came to light.
As NBC News reported, Cooper hired experts who examined the vehicle’s electronic data recorder (“black box”) and found the ignition had slipped from “on” to “accessory” just 3 seconds before the accident. That action shut down the vehicle’s power steering and power brakes. Cooper learned in depositions (sworn testimony) from GM engineers that the car maker knew about the problems before his client even purchased the car in 2005, but rejected a fix due to cost concerns.
Cooper asked GM’s program engineering manager for the defective Cobalt vehicles from 2004 to 2005 if it was true that GM “made a business decision not to fix the problem and five months later sold [his client] a vehicle with the problem”. GM’s lawyers objected, but the engineer answered with a chilling, “That is what happened, yes.”
There is a relatively small community of trial lawyers who represent injured victims in complex lawsuits. There’s an even smaller community of trial lawyers willing to take on an auto company. I’m proud to know Lance Cooper and his paralegal, Doreen. I’m proud to have worked with them on a variety of cases. They do our profession proud. They are an asset to their clients.
And they’re not alone. I know dozens of “Lance Coopers”… trial lawyers willing to represent clients with devastating injuries and losses and against impossible odds.
The 7th Amendment has made countless products safer. Consider just the automotive sector. Every vehicle on the road was at one time “approved” to have met a minimum level of safety by the National Highway Traffic Safety Administration (NHTSA). Yet there have been millions and millions of recalls due to dangerous safety defects and other dangerous safety problems:
- GM Ignition Switch
- Toyota Sudden Acceleration
- Center-Seat Lap-Belt Only Restraints
- Ford Explorer / Firestone Tire Stability Problems
- Side-Saddle Gas Tanks
- Ford Pinto / Crown Victoria Behind-Axle Fuel Tank Location
- Insufficient Roof Strength Defects
- Fuel Tank Shielding Defects
- Tire Detread Defects
And the list could go on and on.
Senator Acknowledges Trial Lawyers Role
Senator Claire McCaskill of Missouri [Ed. note: I’m very proud that Sen. McCaskill is my senator] has been at the forefront of U.S. Senate investigations into GM’s conduct surrounding its defective ignition switch. Senator McCaskill has acknowledged the 7th Amendment’s role in holding GM accountable, noting that evidence surrounding GM’s defect and cover-up first surfaced in depositions for civil jury trials.
Over the course of her investigation, [Sen. McCaskill] said, a year-old deposition emerged showing that GM knew at least by then that someone had redesigned the malfunctioning part and hid any tracks that would have revealed the change.
“And this company did nothing” to warn owners that they owned cars with the potentially deadly ignition switch, [McCaskill] said.
***
“There is no reason to keep the same part-number unless you’re trying to hide the fact that you’ve got a defective switch out there that ended up killing a number of people on our highways,” McCaskill concluded.
– Sen. Claire McCaskill: ‘Moment of Truth’ for General Motors [ABC News]
Senator McCaskill called this a “real moment of truth for General Motors” and called on the auto maker to “come clean, be transparent and most of all make all victims whole….”
Will There Be Criminal Accountability? Will GM Compensate All Victims?
In her interview, Senator McCaskill acknowledged that the Justice Department is continuing its investigation and there may yet be criminal charges:
“You know we had the Citizens United case where our Supreme Court said corporations are people… but if in fact they are people, there needs to be some criminal accountability depending on what the facts of the investigation show. I know the Justice Department is taking a hard look at this.”
– Sen. Claire McCaskill
McCaskill also noted that GM has yet to commit to compensating victims injured before the “new” GM exited bankruptcy protection. Under the terms of the bankruptcy, the “new” GM avoided litigation costs
and defect victims were unnecessarily penalized by being lumped in with other unsecured creditors (like pension plans and hedge funds). That meant that recall and defect victims were left with very little (or even no) recourse against the company for their injuries. Their claims were eliminated in bankruptcy and the defect victims were left to fight for pennies on the dollar with other unsecured creditors.
Safety advocates (and also Senators and Members of Congress) are urging GM to waive this protection and accept responsibility – even for pre-bankruptcy injuries – arising out of the ignition switch defect and recall.
Clarence Ditlow, who runs the Center for Auto Safety, and Jone Claybrook, a former head of the National Highway Traffic Safety Administration, signed a letter to GM CEO Mary Barra today that also asked GM to set up a $1 billion fund “to cover losses of victims and families of safety defects whose claims have been extinguished by the bankruptcy or barred by statutes of repose or limitations.”
Even The Daily Show with Jon Stewart identified the ridiculousness of GM’s position:
Tragic Comedy
GM’s positions were also mocked by Saturday Night Live:
Consequences
Coming full circle, Senator McCaskill noted that whatever consequences are ultimately paid by General Motors, it all came about because of the hard work of a trial lawyer.
[T]he switch issue was brought to light by a trial lawyer, rather than GM itself, while he investigated the death of his client.
“I want to know in how many cases [GM] buried this document,” McCaskill said. “Because this is what happens in America. Corporations think they can get away with hiding documents from litigants and that there will be no consequences. And I want to make sure there’s consequences for hiding documents. Because this is hiding the truth from families that need to know. And it’s outrageous. And it needs to stop.”
This is what happens in America. Corporations play these kinds of dirty tricks every day. And standing on the other side of these companies, standing up for truth, and standing up for justice … trial lawyers.
© Copyright 2014 Brett A. Emison
Follow @BrettEmison on Twitter.
Brett Emison is currently a partner at Langdon & Emison, a firm dedicated to helping injured victims across the country from their primary office near Kansas City. Mainly focusing on catastrophic injury and death cases as well as complex mass tort and dangerous drug cases, Mr. Emison often deals with automotive defects, automobile crashes, railroad crossing accidents (train accidents), trucking accidents, dangerous and defective drugs, defective medical devices.
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