Source: The National Law Journal by Amanda Bronstad
Kelly Irvin was driving home from work on a Missouri highway in 2012 when the engine of her 2006 Chevrolet Cobalt shut off. She lost control of the car, the air bags never deployed and the 23-year-old nurse ended up in a coma for three months, her lawsuit filed in May alleges.
Irvin's car was among the 2.6 million worldwide that General Motors Co. recalled last year over an ignition-switch defect. She blamed the defect for the crash, which she alleges caused brain hemorrhaging, internal injuries and multiple bone fractures. Her case is among 18 lawsuits that could be the first to go to trial against GM over the ignition-switch defect.
"It's a young lady whose life was dramatically changed as a result of the ignition-switch failure," said Irvin's attorney, Maurice Graham, president of Gray, Ritter & Graham in St. Louis. "This is one of the more compelling plaintiffs' cases that have been filed against GM."
The lead lawyers suing GM in the massive ignition-switch litigation seem to think so, too. On Feb. 17, they picked the case, along with eight others, as part of a trial plan put forth by U.S. District Judge Jesse Furman of the Southern District of New York. The plan permits GM to choose nine cases of its own. The first trial is set for Jan. 11, 2016.
GM, through a spokesman, declined to comment for this story.
The so-called "bellwether" trial process is designed to help both sides reach a settlement of all the cases, said Alexandra Lahav, a professor at the University of Connecticut School of Law.
"That's the end-game here," she said. "If the parties understand the shared value of the cases, they can come to the table and have settlement negotiations."
The trial plan is gearing up as GM on Feb. 19 announced a new general counsel, Craig Glidden, to replace Michael Millikin, who retires in July. [See "GM Reaches Outside Inner Circle," Page 6.] Last year, members of Congress sharply criticized Millikin for his role in failing to identify the ignition-switch defect.
Since announcing its recalls, GM has made strategic moves to avoid a trial over the ignition-switch lawsuits, which total about 160 lawsuits in multidistrict litigation. GM filed a motion to bar lawsuits over accidents that occurred before July 11, 2009, the date when a reorganized GM acquired old GM's assets out of Chapter 11 bankruptcy. U.S. Bankruptcy Judge Robert Gerber of the Southern District of New York heard arguments on that motion on Feb. 17. GM also set up an unlimited fund to compensate victims of the defect and their families. That fund, which closed on Jan. 31, has received more than 4,300 claims.
INSISTING ON TRIAL
But about 950 people are taking their chances in court, according to Robert Hilliard, a partner at Hilliard MuÃ±oz Gonzales in Corpus Christi, Texas, one of three lead plaintiffs attorneys in the ignition-switch litigation. All are victims of accidents after 2009, so GM's bankruptcy motion doesn't apply to them.
Some rejected the amounts offered by the fund or were ineligible to receive payments because their cars were recalled for other defects or, during their accidents, the air bags deployed. (GM limited the fund to vehicles recalled over the ignition-switch defect whose air bags didn't go off.)
The defect causes the ignition switch to slip into the accessory position, shutting down the engine and disabling electrical systems, including air bags.
On Feb. 6, Furman set up parameters for an initial discovery pool of 18 cases. Under the plan, each side must select five cases from the initial pool by June 24 for a bellwether trial. By July 1, each will strike two more cases, narrowing the field to six.
Furman has restricted the bellwether process to vehicles recalled over the ignition-switch defect, as opposed to other GM recalls. For the most part, he adopted a proposal put forth by the plaintiffs attorneys, focusing on cases in which the air bags hadn't deployed and vehicles that had defective ignition switches installed when they were manufactured — generally, those made before 2008.
GM attorneys at Kirkland & Ellis had sought to expand the pool to include cases in which air bags deployed and to those involving model years 2008 through 2011, some of which may have had defective ignition switches installed as replacement parts.
Having both sides pick the bellwether cases is common, but it's far from perfect, Lahav said. "That gives you a sense of what cases plaintiffs think are the best, and what defense thinks are the best, but it doesn't give you a sense of overall, 'What does this group look like?' " she said. To that end, Furman on Feb. 17 ordered that all the cases fit into three categories suggested by the plaintiffs attorneys: deaths, severe injuries and moderate injuries.
Of those that go to trial, "one will be a death case, one will be a severe injury case, and a couple of them will be moderate-injury cases, depending on the percentage of those cases," Hilliard said.
Following her accident, Irvin's injuries were "catastrophic," Graham said. She spent $400,000 in medical bills and still has memory loss and emotional problems. She now answers phone calls at the hospital where she once worked as a labor and delivery nurse, he said. "It's just a really sad situation."
GM BELLWETHER POOL
Counsel on both sides in the General Motors MDL will narrow down the list of these cases to six for trial.
Source: PACER Court Records