The Powell Law Group - Personal Injury, Corporate & Municipal Law

Judge: GM must produce documents
Information could she light on fiery 1999 crash that killed 2 Freeland men
by Paul Krupski, Standard Speaker

WILKES-BARRE - A judge Tuesday ordered attorneys for General Motors Corp. to produce controversial and long-hidden "fire baby" documents to lawyers representing the families of two Freeland men, who were killed in a fiery head-on collision in 1999.

"The genie is out of the bottle and they're scared," stated attorney Robert Powell, whose law firm is representing the parents of Michael P. Arcure and Orval J. Murphy in two lawsuits scheduled for trial Nov. 18 in Luzerne County Court.

Defendants are GM, David Pavelko of Beaver Meadows and Dave's Auto Sales on Route 93, Sugarloaf, and Salvatore P. Costa, of Beech Lake in Wayne County.

Arcure, 18, and Murphy, 19, died along with Barry Mulhall, 30 who was driving a 1985 Chevrolet Blazer that was struck by a Chevrolet Silverado pick-up truck operated by Harry William Biddings III, of Berwick.

The tragedy occurred July 19 on Airport Road in Hazle Township.

Biddings, 27, pleaded guilty to three counts of homicide by vehicle while drunk. He was sentenced to 11 to 22 years in prison. He is an additional defendant in the lawsuits.

Powell said the "genie" refers to the "Edward C. Ivey documents," which revealed that GM knew since 1973 of the risk of gas tank explosion caused by the design and placement of the tanks installed in its cars.

Ivey is the engineer who prepared a cost-benefit analysis of burn deaths in GM vehicles.

In his 1973 analysis, Ivey assigned a $200,000 value to a human life and estimated that fuel-fed fire deaths cost GM $2.40 for every GM vehicle on the road.

"Basically, if a part cost $2 or less, they could put it in. If it cost more, GM was better off assigning a value to people's lives," Powell stated.

Powell said lawyers all over the country "sought these documents."

He charged that GM "hid behind the skirts of attorney-client privilege" attempting to keep Ivey's analysis secret.

In fact, a 1998 news article about a Florida lawsuit said questions were raised about the ethical behavior of former U.S. Special Prosecutor Kenneth Starr who, as a GM lawyer, fought hard to suppress the evidence.

Powell said the Ivey document remained secret until GM expert Ron Elwell, during testimony in the Florida trial, revealed that GM lawyers interviewed Ivey in 1981 about his analysis.

Powell said Elwell was charged with the responsibility of putting together a "post-collision fuel-fed fire index" for GM.

"The existence of the PCFFF was not well known until we found it in depositions," Powell said.

In requesting GM documents for the deposition, Powell said GM lawyers accidentally provided the date and corporate-stamped "fire baby" documents.

Powell said one of the significant documents assembled by GM lawyers was the "Ivey memo." He said its purpose "was to get lawyers, representing GM in lawsuits across the country, signing off on the same sheet and telling the same lie."

GM attorney Mary Grace Maley told Judge Peter Paul Olszewski that turning over the controversial documents was "inadvertent."

"On May 17 at deposition, I realized one of those documents was coming up on the screen," Maley said.

She said she invoked attorney-client privilege and asked Powell to return the document.

Powell argued production of the document wasn't inadvertent.

Referring to it as a "cluster mistake," Powell said counsel for GM chose not to read certain documents and then turned them over.

"We gutted it out and read every document, discarding what we didn't need. We did what we had to do," Powell stated.

He said the "fire baby documents are most interesting and revealing. They are the Holy Grail to them."

Maley argued the documents GM claimed are privileged and part of a confidentiality order signed by Judge Thomas Burke at a prior discovery hearing.

Powell countered that Burke's order states, "If it's produced, its fair game."

Olszewski said he would take the matter under advisement and issue a ruling.

The lawyers also argued over GM's reluctance to produce information about studies of under-the-hood, fuel-fed fires done by an expert named James Wilander.

Maley asked that the data be limited to Blazers manufactured between 1983 and 1994 and fires that occurred under the hood. She argued some vehicles blazes could be caused by holes in the gas tank or a problem with the electrical system.

Powell said Wilander's study was to determine "what happens if fuel escapes from the fuel system during a crash. It ignites and people die."

The lawsuits allege Arcure and Murphy could have survived had the Blazer been properly designed.

The plaintiffs claim the victims wouldn't have suffered such a painful death if the fuel-feeding system had been made safer.

Powell said discovery limitations of GM's lawyers were trying to impose "gobbledygook."

After a question-by-question review, Olszewski overruled GM's objections and gave lawyers 20 days to produce the fuel study documents Powell requested.

Maley agreed to respond to other unresolved discovery questions by Friday.

GM delivered the Blazer to Costa, who sold the vehicle to Pavelko in July 1988. Mulhall purchased it Aug. 31, 1990.

The "fire baby" evidence is essential to proving allegations that GM knew the Blazer was defective and deliberately opted not to install every element to make the vehicle safer.

In July 1999, a Los Angeles jury assessed a record $4.9 billion verdict against GM in a case involving six motorists, who were severely burned in the 1979 Chevrolet Malibu that exploded when it was struck from behind by a drunk driver.

The jury found GM 95 percent responsible and awarded $107 million in compensatory damages. The jury also charged GM $4.8 billion in punitive damages.

In August 1999, California Superior Court reduced the punitive damages to $1.09 billion.

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