Lawyers Race GM to Find Black Boxes | News | HMG LLP

Lawyers Race GM to Find Black Boxes

August 31, 2017

The Wall Street Journal | By MIKE SPECTOR and VANESSA O'CONNELL

Loveth Kirika was driving her 2007 Chevrolet HHR toward Houston in April when it suddenly stalled on Interstate 45. Another car rear-ended her, knocking out the 39-year-old woman with a concussion.

In May, her husband, Lenu, got a telephone call from Mark Byrd, an investigator of product-liability cases at General Motors Co. He wanted to know where the car's black box was. Mr. Kirika replied that he hadn't seen the car since it was towed away from the crash scene. The investigator called back later and told Mr. Kirika he was still looking. Mr. Kirika said he hung up.

As GM braces for a long, costly legal slog over its liability for defective ignition switches in 2.6 million cars recalled by the company earlier this year, a tug of war has emerged over the data in black boxes, mounted deep inside the cars and known in the auto industry as "event data recorders."

GM and lawyers lining up plaintiffs to sue the company are racing to find black boxes in wrecked cars and track down old downloads of black-box data. Some families and plaintiffs' lawyers said the auto maker has contacted them seeking possession of black boxes.

Mr. Byrd referred questions to his boss in Detroit, who declined to comment. In a written statement, a GM spokesman said the auto maker is "taking responsibility for what has happened by taking steps to treat these victims and their families with compassion, decency and fairness." The Kirikas are preparing a lawsuit against GM, said their lawyer, Bob Hilliard.

The company has attributed at least 54 crashes and 13 deaths to the defective ignition switches. Whether and how high those numbers climb will likely depend at least partly on black-box readouts, which capture a slew of information in the seconds just before a crash.

The information includes the car's speed, throttle and brake position, whether air bags were triggered and often the position of its ignition switch. The switch's position is particularly important because a defective switch can cut power to steering, brakes and air bags if it slips out of the "run" position and into "accessory" or "off."

Whoever owns a car also owns its black box. But GM asserts the right to "access information about a crash event or share it with others" if the owner agrees, the information was requested by police or government officials, or the information is "part of GM's defense of litigation through the discovery process," according to the owners' manual for the 2005 Chevrolet Cobalt.

The company's internal report on its handling of recalls of cars with defective ignition switches, released last week, showed that black-box data helped push GM to finally confront problems it dithered over for years.

The report said the lawyer for a 29-year-old Georgia woman who was killed when her Cobalt veered into another vehicle in 2010 dropped a "bombshell" in a deposition last year by showing that a GM engineer changed the defective switch's design. The lawyer uncovered the evidence after scrutinizing a black-box readout that said the car's ignition was in the "accessory" position.

Car owners often must rely on auto makers to download the data, usually by plugging a cable into the box, or handing over black boxes that the companies sometimes retrieve after crashes.

In March, Sen. Pat Toomey (R., Pa.) claimed in a letter to GM Chief Executive Mary Barra that the company was stonewalling relatives of Kelly Erin Ruddy, a 21-year-old woman killed in 2010 after losing control of her 2005 Cobalt.

GM extracted the black box from her car, according to the lawmaker, who told Ms. Barra that the dead driver's family members have been "unable to speak with any representative of your company" despite repeated efforts.

The auto maker's "lack of responsiveness" is "totally unacceptable," Mr. Toomey told Ms. Barra in the letter, which was reviewed by The Wall Street Journal. After the lawmaker's complaints, GM returned the black box to the Ruddy family, which has hired a lawyer, according to a person familiar with the matter.

Black-box data offered telltale signs of the ignition-switch defect as far back as 2005, when 16-year-old Amber Marie Rose careened off a Maryland cul-de-sac, struck a large tree and was killed. Ms. Rose was drunk, speeding and not wearing a seat belt, according to law-enforcement officials.

One fact puzzled a sheriff's deputy who investigated the crash scene: The air bag in the teenager's car failed. The deputy reported the crash to the National Highway Traffic Safety Administration's Office of Defects Investigations.

About 10 days later, NHTSA investigators plugged cables into the mangled car's black box. Two GM representatives and an investigator hired by Ms. Rose's family downloaded the same information together in September 2005.

The government's report noted that the car's "Vehicle Power Mode Status" was in the "accessory" position right before the crash, according to a copy reviewed by the Journal. The reading means that a car's key is turned far enough to run the radio and automatic window but isn't powering the rest of the vehicle.

NHTSA said officials examined the readout and discussed it with GM but lacked enough information from the auto maker to definitively link air bag problems and the defective ignition switches until February 2014.

Theresa DiBattista, the adoptive mother of Ms. Rose, said family members didn't realize the importance of the black box's "accessory" reading when GM claims manager Kristy Gibb offered less than $1 million in 2006 if the family agreed not to sue GM.

Ms. Gibb told the family the black-box download also showed that Ms. Rose pushed down on the gas pedal and never let up before the crash, according to Ms. DiBattista. She said her own lawyer warned that a jury might rule in favor of GM. The family agreed to GM's settlement offer.

"Had we known then what we know now, heck, no, we wouldn't have settled with them," Ms. DiBattista said. She has hired a new lawyer and is deciding whether to sue GM. Ms. Gibb couldn't be reached for comment.

In 2009, 25-year-old Hasaya Chansuthus died when her Cobalt sideswiped another car in Tennessee, veered off the road and slammed into a tree as she drove home from a party. The air bag didn't inflate.

Her family members reached a legal settlement with GM in 2011. Terms of the deal weren't disclosed. Her brother, David, said he felt pressure to settle because his sister's blood-alcohol level was more than twice the legal limit when she crashed.

Mr. Chansuthus remembers his lawyers and GM representatives retrieving data from the wrecked car before the settlement, but said he doesn't recall seeing any information about the Cobalt's ignition switch.

Earlier this year, a local television reporter gave him a copy of a black-box readout from a GM product-liability investigator in 2010 showing the car's power mode was "off" just before the crash.

According to the internal report released by GM last week, the auto maker's outside lawyers urged GM to settle with the Chansuthus family because of a "sensing system 'anomaly' " tied to the air bag's failure.

"I was very shocked" by the black-box report, Mr. Chansuthus said. He said he is weighing whether to try to reopen the lawsuit by arguing that GM withheld crucial information.

Ashby Jones contributed to this article.

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