Excerpt: The Memorandum by Robert W. Kelley

What GM Knew

One day shy of three weeks after I listened to Ron Elwell on the stand, the jury in the case on Court TV returned a whopping verdict against GM. It was a stunning amount, meant as a message.

They awarded Shannon’s parents $4.2 million in compensatory damages, based on their son’s projected lifetime earnings, and something extra. Then they slapped GM with tens of millions of dollars more in punitive damages. More than attorney Jim Butler had asked for.

Punitive damages are just that, punishment. This was more. This was a bombshell. It was about the gas tank and the fire, sure. But it was about more than that.

“They knew,” juror after juror said after the verdict was rendered.

“They knew,” they said, again and again.

Butler got every penny he asked for in punitive damages: $20 for each of the 5 million GM pickup trucks on the road.

The jurors even did him one better—one million better, to be exact. The extra, according to a magazine article that appeared after the trial ended, “was meant as an exclamation point—the jurors two cents worth, as it were.”

Elwell’s testimony clearly had made an impact. And I knew it would in the Murphy’s case. I had to find Elwell.

And I didn’t know the half of it. The jurors had heard parts I hadn’t. The former, and admittedly disgruntled, GM engineer had taken the stand the day before I tuned in and delivered devastating accounts of the extent of the automotive giant’s knowledge, and the extent of their efforts to conceal what they knew from the public.

He also testified that GM ran some additional tests, with the gas tanks protected by steel shields.

“It worked beautifully,” Elwell said. “And then they decided that they weren’t going to invest that money in the design, or in the execution. So, for the next six years, seven years, they made pickup trucks that they knew very well all they had to do was put the steel shield around it like they had tested, and it would have not only passed, but it would have saved hundreds of lives.”

They knew.

And I wondered—if GM knew its truck gas tanks were potentially dangerous and covered it up, was the same true about the ones in station wagons like the one Matt was in? The Georgia trial was about a GMC Sierra pickup truck with side saddle tanks. The Murphys were in an Oldsmobile Cutlass Cruiser station wagon with a rear-mounted tank.

Different vehicles. Different tank positions. But . . .

Of course, for all I knew at that point, Elwell might have presented the same damning indictment of station wagons as he did the pickups while he was under oath on the stand. Or someone else may have. I had no idea how much of the trial I had missed.

But I knew how to find out.

I sent a letter to Court TV asking for a copy of the video of the trial, along with a check for $639.

It was money well spent, I figured, because even if the subject of station wagons never came up, I could learn more about who was who in the GM engineering hierarchy. Jane Reilly’s station wagon was made right around the same time as Shannon Moseley’s Sierra pickup truck. Chances were most of the names would be the same. Trucks and passenger cars might be handled by separate units, but there had to be some overlap. Maybe a lot. And, I could learn a lot about GM’s counter-arguments.

I’d watch the trial from beginning to end the way a pro football player watches the opposing team’s game tapes. I wanted to study their playbook, or at least the parts that they used in the Moseley trial.

Listening to several weeks’ worth of attorneys’ statements and courtroom testimony, of course, is easier said than done. It’s hard to make the world stop while I catch up. I still had other cases to handle and, at the time, I didn’t have an associate I could assign to go through and flag the important parts for me to watch. Ah, well, a step at a time. First I had to get the tapes.

And I needed to find Elwell.

That, at least, I could get help with. I put my paralegal to work on that. Who knew? He might be in the Detroit phone book. Or Jim Butler might be happy to share his contact info. I didn’t know the backstory from what I had seen of the trial, but from what I could tell of his testimony, it sure didn’t seem like Elwell would mind another chance to hang his former employer’s dirty linen out for the world to see.

With those steps in motion, it was time for my first deposition in the case. I started with the most logical choice, Curtis Cayton, the driver of the Ramcharger with the trailer that broke free and hit Jane Reilly’s wagon.

I would be gathering valuable information. I was also firing a salvo. A warning shot, as it were, to let the insurance companies know we were serious. I wanted them to realize we hadn’t just filed suit to make them pony up the uninsured motorist coverage amounts listed on the policy. We weren’t just going through the formality of suing so that they could pay. We felt there was a legitimate case here, that there had been legitimate wrongdoing here, and my clients intended to make someone pay for it. Fully.

Getting Cayton on the record, right hand raised and under oath, would do that. And, I expected, it would fill in a ton of blanks about the accident, and the trailer, from the perspective of the person responsible. This was not some act of God. It wasn’t willful, either. But it was definitely negligent. And it was definitely preventable.

Curtis Cayton hitched that trailer up and took it out on that expressway that afternoon. That’s how it got there. No one forced him to. He was accountable. I wanted to sit him down and make sure that both he and the insurance companies knew that. Beyond any doubt.

And I wanted to learn the things I didn’t know. Like what condition the trailer was in. What condition he was in. The cops didn’t list alcohol as a factor in the wreck, but I wanted Cayton to speak for himself. I wanted him to describe hitching the trailer up that day. I wanted to find out everything I could about the events leading up to the accident from the only person who would really know. The man who caused it.

It didn’t go well.

At least at first.

I met Curtis Cayton in Virginia Beach, just a few miles from where the accident happened, at the office of the attorneys for State Farm in the case. They had an associate sitting in for them. I had Doug Fortune, our investigator, work the video camera. Progressive Insurance sent an attorney to listen in, too.

Things went OK for about ten minutes as I asked Cayton a few innocuous questions. Name, age, address. That sort of thing.

He said the trailer was registered in his name. He said he’d had it for about a year before the accident, that his father-in-law gave it to him.

And then things went sour.

“And why is it that he gave you that trailer?” I asked.

It seemed, to me, like just another fairly innocuous question. Just building the background.

But State Farm’s attorney went ballistic. Not like shouting or ranting, but combative. Openly hostile, in my opinion at least. For reasons I didn’t quite understand.

“I’ll object,” she said, “and I’ll instruct the witness not to answer the question as being irrelevant to the underlying action in this lawsuit.”

I wasn’t quite sure what to make of that. But I thought maybe the law was different in Virginia and, since we were deposing Cayton for a Florida case, under Florida law, maybe I should help her out.

“Well,” I said, “that’s not proper in Florida.”

“Show me the law,” she shot back.

I was shocked. But far from tongue-tied.

“You show me the law that tells you it’s proper to instruct the witness not to answer a question.”

“That’s what I’m doing,” she said.

“With no legal basis. You have a whole stack of case law in there.”

“If you would like to talk about it after the deposition I would be happy to discuss it with you.”

“No,” I said. “I would prefer to get an answer to the question. So I’ll ask the witness again. There is no basis for you to instruct him not to answer the question. If you want to state a reason on the record that you are instructing him to do that, you are free to do that. But in Florida the only basis for instructing the witness not to answer a question is if it is a privileged matter, attorney/client privilege.”

She stood her ground—ignorant of what the rules in Florida were, apparently, but determined to prevent Cayton from answering. I let her have it.

“I flew all the way up here from Fort Lauderdale and flew an investigator with me,” I said. “It cost us a lot of money to get here, as I’m sure you know. If you instruct this witness not to answer, we are going to have no choice but to ask the court to assess attorneys’ fees and costs against you and your client and further to hold your client in contempt for failing to answer these really easy questions, like why his father-in-law gave him the trailer.”

Nothing. She stood firm. I’d ask a question. She’d tell Cayton not to answer.

So I turned my guns on Cayton. If he got scared, and thought State Farm was hanging him out to dry, he might answer my questions.

“I don’t appreciate flying a thousand miles and being obstructed by State Farm Insurance Company who knows I have no alternative but to sue Mr. Cayton and go after his personal assets,” I said. “I’m going to continue to ask my questions. If you continue to instruct this man not to answer them, I promise you before the end of April he will be sued individually and we will go after him for his personal assets because of what State Farm is doing here today.”

Cayton still refused.

“I’m going to go by what she says,” he said.

“Do you remember the accident?” I asked.

“I’m not going to answer nothing else now,” he said.

Just then, Progressive’s attorney spoke up, for the first time. I didn’t know what to expect, but he actually had a pretty good suggestion.

“Can you contact a judge in Florida who has jurisdiction over this matter and have him make a ruling?”

Good idea, I thought. Most of the judges in Broward County knew me. I had tried cases before almost all of them. They knew I was not the kind of lawyer to take a case I didn’t believe in or to ask irrelevant questions or to waste anyone’s time. If I asked a witness a question, they knew it had a purpose, even though it might not seem readily apparent to them or to anyone else at first. Those are actually the best kind of questions. When no one sees it coming.

And that’s just what we did. Or tried to. The judge wasn’t in. I tried to continue while his assistant tracked him down and, for the most part, State Farm’s attorney continued instructing Cayton not to answer.

Then the phone rang. It was the judge.

Boy, did things change after that. The lawyer for State Farm insisted on putting one more blanket objection on the record, but then she pretty much shut up and sat there, stoney faced, for the next half hour or so. And when she piped up then, I shut her down fast.

“The way we proceed here is I ask questions and he answers,” I said. “All his answers will be only if he knows. If you want to object to a question, you’ve done that, and I know you know how to do it, you can do that. But to simply interpose a statement for the witness, that’s improper, so I object to that, and I would ask you not to do it again.”

That worked. The only other times she said anything were, I thought, legitimate—and quick—comments. She didn’t even interrupt as Cayton went through a detailed description of the trailer coming loose from his truck, him watching it roll across lanes and into the back of the station wagon, and the wagon bursting into flames.

“Just as soon as it hit,” he said, “it looked like to me it exploded right on up.”

He saw the people on fire, he said, scrambling from the car.

After that, things seemed foggy, as he told it. He didn’t remember where the trailer went after it hit the wagon. He couldn’t say if it went left or right. He didn’t know how it ended up where it ended up. He stayed frozen, four lanes away, watching the wagon burn.

“You were probably in shock at that point?” I asked.

“Right,” Cayton said. “I couldn’t tell you.”

In all, the deposition took under 90 minutes. Including the time on the phone with the judge. It could have taken a lot less, without the useless sparring from State Farm’s attorney. But, in her defense, she was being protective of her company. She had no idea what I was really curious about. Nor any idea of how much Curtis Cayton had told me in one short series of questions and answers.

“To me, as soon as it hit the car, it just burst into flames,” he said.

“Right at the impact?” I asked.

“Right.”

Just like Shannon Moseley’s truck, I thought. That’s what the eyewitnesses had said there. They saw fire before the truck had even stopped sliding.

• • •

With Cayton’s depo in hand, I reached out to an automobile crash expert I had worked with before, John Marcosky. He was a certified automotive expert, a mechanical engineer who, as luck would have it, had also worked for General Motors. At the GM Tech Center in Warren, Michigan. The same place, it so happened, where Ron Elwell had spent a large chunk of his career with the automaker.

I don’t think I knew about that little bit of coincidence at the time.

I just knew Marcosky knew his stuff.

But I would find out, as we worked together on the Murphy case, that Marcosky had worked for what was known as structure and suspension development, a unit later called advanced project engineering. He was, by his own description, “primarily involved in research and development for futuristic cars.” Which sounded pretty cool. But his work included, notably, assessing the safety of the vehicles.

“In the event it’s involved in a collision,” he explained, “is it going to protect you.”

And, most importantly for me, he had also worked on vehicle fuel systems for the automaker. That meant he knew gas tanks and fuel lines. The whole system. Which he took very, very seriously.

As he would put it under oath, on the witness stand:

“I would start this with the most important thing that you have to think about with a fuel tank, and that’s safety. Where are you going to put it, because it is explosive. When it has a rupture or it lets fuel leak out of it, it’s a bomb. I mean, it is like a flame thrower that you have seen during the war. It can cause so much havoc, so much instant death, and so much destruction of human life and property, like that!” he said, snapping his fingers. “That’s the first thing you think about, where am I going to put it, and is it going to be out of harm’s way, because we have a responsibility to reasonably protect the safety of the individuals so they don’t become in the way of harm.”

Marcosky also was a member of the Society of Automotive Engineers and the National Academy of Engineers—great credentials for him to have as an expert witness. The SAE sets standards for testing procedures, for exactly the kind of thing I wanted him to do here.

I wanted Marcosky’s input on the evidence gathered up to that point. I wanted him to tell me, from an automotive engineer’s perspective, if there was a design flaw that made the tank on the wagon more vulnerable to being pierced by the trailer tongue. Basically, I wanted to know if he thought, reasonably, that the fuel system design as built and sold by GM was susceptible to this kind of thing. But that it didn’t have to be.

I wanted to know if he knew of commonly accepted manufacturing practices the automakers employed—or could—to keep their fuel tanks from being firebombs on wheels.

And I wanted him to help design a crash test we could run that would replicate the conditions in the Murphy case, and that would show that it was easily preventable.

In short, I wanted his expert automotive engineer’s opinion on what we were looking at: an automotive product liability case.

In large part, we had Ralph Nader to thank for the very notion that America’s automakers would intentionally put lives at risk just to save a few bucks. Or, from their point of view, to make some. Let’s face it, any reduction in the cost of making a vehicle was money in their pocket when it sold. They proved that, as Nader pointed out in his seminal book “Unsafe at Any Speed,” with the Chevrolet Corvair.

It was the only mass-produced U.S.-designed car built by a major manufacturer to feature a rear-mounted, air-cooled engine. The first ones rolled off the assembly line and into showrooms for the 1960 model year. Nader’s book came out five years later, focusing its first chapter on the Corvair and Chevrolet’s cost-saving decision to sell the cars without a front anti-roll bar. The cars, Nader said, had a dangerous problem with oversteering and stability, causing crashes that the anti-sway bars could have reduced. Despite the vocal opposition of one of the company’s own suspension engineers, Chevrolet put the cars out for sale without the stabilizing bars.

Sound familiar?

Chevrolet, by the way, is one of the General Motors car brands, along with Oldsmobile and GMC.

Nader’s book may have killed the Corvair, but it didn’t stop carmakers from putting money ahead of safety. The industry was shaken again when a California jury hit Ford with a multi-million dollar verdict in punitive damages in a case involving the company’s Pinto subcompact car. In order to save a few bucks per car, the jurors decided, Ford knowingly sold the Pintos with an unsafe gas tank design that significantly increased the chances of a fuel-fed fire in a rear-impact accident. The result, in the California case: a woman died and her passenger—a 13-year-old boy just like Matt Murphy—suffered horrible disfiguring burns from head to toe.

Seven years after the Pinto verdict, Shannon Moseley’s truck came out of the factory—with, according to sworn testimony, gas tank design defects GM knew about, but ignored.

And two years before that, Jane Reilly’s station wagon had been built and sold by General Motors’ Oldsmobile Division.

The timing, I thought, was more than coincidental.

I brought the Murphys back into my office. I told them about Elwell and about the Georgia case and the pickup truck gas tanks. I told them that if I could prove that GM knowingly, or even carelessly, put Jane Reilly’s station wagon on the road with an unsafe gas tank, that made the company liable for what had happened to them. I told them that if they agreed I would go after GM.

“That’s most likely going to mean a much longer fight,” I told them, “and a much more expensive one.”

I watched them for a reaction. Like I said before, real-life lawsuits are not Law & Order. Real-life cases don’t play out while you’re sitting on the couch. And they don’t wrap up in 60 minutes.

“I need you to understand,” I continued, “this could take years. And it can—will—be very painful.”

They didn’t move. They didn’t blink. They just sat there on my gray sofa, holding hands, watching me.

“So that you know,” I went on, “experts, exhibits, court reporters, travel, and court fees could run into the hundreds of thousands of dollars, or more. We, the firm, will pay for all of that up front. And, if we lose . . . ”

I stopped. I thought I saw Catherine’s breath catch, ever so slightly, for just a second.

I went on.

“We have to be prepared for that possibility,” I said. “Nothing is guaranteed. In fact, you need to know that the odds are against you. These cases are lost a lot more than they’re won. And GM is a very big company, with lots of lawyers, and lots of money. And they don’t want the world to think their cars are dangerous. They’re going to fight. Hard.”

I let that sink in a moment.

“But, if we lose, you don’t pay a thing. We pay for everything.”

I watched them. Those blue eyes of theirs seemed even clearer now. Still sad, but steely.

“If we win, though—yes, that can happen too,” I said. “If we win—or settle—those costs come out of your part of the award. Plus the firm receives 40 percent of the full award amount.”

Mike Murphy gave a quick nod.

“That’s fair,” he said. “Do it.”

Catherine nodded.

They signed the amended retainer agreement, now including General Motors, and I walked them out. I shook their hands in the lobby, hers, then his.

“I can’t guarantee we’ll win,” I said. “All I can promise you is that I will do my very best.”

The judge signed off on the amended lawsuit six days later, adding GM to our initial action. We served notice on the company the very same day, via a corporate affiliate office in Plantation, Florida, just a few miles from the Murphys’ home.

On July 8, just days before the statute of limitations ran out, I also filed in state court in Virginia. It named everyone included in the Florida suit, including GM. Just covering our bases. If the lawsuit somehow got dismissed in Florida over a lack of jurisdiction, we had a fallback. It wasn’t necessarily where we wanted to end up in court, but it would be hard for someone to say the Murphys didn’t have a cause for action in Virginia, where the accident happened.

On the plane ride home, I felt exhilarated, and drained. Full of that tired tension boxers must feel between rounds in a prize fight. I set my laptop on the tray table in front of me and made a note.

“I am on my way home from Virginia Beach, Virginia,” I typed. “I flew up yesterday to make arrangements for the filing of what could be one of the most significant cases of my career.”

The very next morning, we filed a third lawsuit in federal court in Fort Lauderdale. Same defendants, all the uninsured motorist carriers, GM, and the company that made Curtis Cayton’s trailer hitch, Valley Industries, Inc.

Federal court was a last resort. We did not want to fight the case there, if we could avoid it. But if both state court cases got thrown out, I wanted to be sure GM didn’t just get to walk. It might not be our favorite venue, but taking them on in federal court was better than no court at all.

The timing was significant. Just under the wire.

The statute of limitations ran out four days later, on July 13—two years to the day after Matt Murphy died.

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