Daily Journal, January 16, 2004

     Plaintiffs' attorney Garo Mardirossian is not just trying to win a case.
     He wants to reform the auto industry.
     To do that, Mardirossian contends he needs to release reams of confidential documents he obtained litigating a case against General Motors Corp. on behalf of the family of a man who died following a van rollover and other passengers who were injured.
     Lawyers for General Motors will oppose releasing the documents. They
have said the documents contain trade secrets.
     Today, Superior Court Judge Mel Red Recana will consider a motion Mardirossian filed last month to force General Motors to make public three decades of internal test results, engineering notes and other safety data on vehicle roof strength.
     The veteran personal-injury lawyer is representing five Los Angeles survivors of a fatal van crash in Northern California in a wrongful-death suit against GM. Three of the surviving passengers are family members of a Chinese man who died. Duan v. General Motors, BC229926 (L.A. Super. Ct., filed May 12, 2000).
     The Detroit-based automaker handed over some records in November shortly after reaching an agreement with plaintiffs' lawyers to keep the records confidential under terms of a protective order that both parties and the court signed off on.
     But Mardirossian says the company has stamped documents not covered by the agreement "protected," in violation of the order.
     Mardirossian is trying to win the right to distribute the records to federal regulators, consumers and watchdog groups to help bring about broader reform.
     Releasing the data, which includes records never before made public, will "once and for all" lift a "shroud of secrecy" that GM has cloaked itself in through years of litigation, Mardirossian said.
     If the documents are released, regulators, in particular, will for the first time have wide access to key research and technical data on roof strength that GM has kept secret, records they need "for the purposes of determining how to make the [current] rule stronger," according to plaintiffs' expert Don Friedman, who will testify in the Duan case.
     Rollover crashes have long been a concern of regulators and auto-safety watchdogs who have seen death and serious injury skyrocket since the mid-1980s as sport utility vehicles, vans and pickup trucks have become the vehicles of choice for half of today's car buyers.
     The dispute over release of the documents comes as the National Highway Traffic Safety Administration considers tough new standards governing vehicle roof strength to better protect occupants in rollovers.
     The agency says that "rollover crashes are the most dangerous collision type for light duty vehicles."
     In a study of accident statistics from 1995 to 1999, the agency found that roof crushing was involved in a quarter of rollover accidents.
     And of the 27,057 people seriously injured annually in rollovers, the study found that 10,149, or 40 percent, died. That's nearly as many as the number of fatalities in front-impact crashes, which involve 2.5 million more vehicle occupants than in rollovers.
     Mardirossian says the records he seeks will show that GM knew for decades of defects in its roof design that led to seri-ous injuries and death.
     Instead of fixing the problem, the automotive titan hindered regulators from developing a strong design standard, he said.
     "Plaintiffs intend to prove that [General Motors] chose to block efforts to have stronger industry and government standards," Mardirossian wrote in a motion filed last month seeking punitive damages in the van-crash case.
     "Also, [company officials] hid their internal tests and information in an effort to 'dummy down' the state-of-the-art and leave unchallenged their designs of weak roofs on multi-passenger vehicles."
      GM denies Mardirossian's allegations.
     Mark V. Berry, a defense attorney at California's Bowman & Brooke in the firm's Gardena offices, dismissed them as as "ludicrous."
     "Their allegation of a cover-up is frankly not true," Berry said.
      "That's their own expert re-interpreting [GM's] data," he said, referring to Friedman, a former GM engineer and auto-safety design expert.
     Berry is representing GM on the punitive-damages issue.
     Attorneys Vincent Galvin and Kathleen A. York, who are handling the documentrelease issue, did not return calls seeking comment.
     Berry said GM lawyers will oppose the release.
     "We will present a justification for confidentiality on a document-by-document basis," he said.
     Mardirossian argues that, under the terms of the protective order, documents that have been disclosed in open court during a trial no longer can be considered confidential.
     He contends that the records he has received have been made public in prior trials and those that haven't are at least 15 years old, nullifying any claim of commercial or proprietary value.
     Uncovering the hidden data, Mardirossian says, will help prevent future injuries and deaths, like that of Bing Lin Duan, a retired University of Beijing history professor traveling in a rented 1999 Chevrolet Astro van with family and friends when the accident occurred Aug. 15, 1999.
     Duan, his grandson Xiaochen Tian, 9, his daughter, Yu Duan, 34, the boy's father Yudong Tian and three of the couple's friends were on a trip to see the famed Northern California redwoods and giant sequoias.
     The driver, Jianbo Gao, nodded off and lost control of the vehicle on Kings Canyon Road near Sequoia National Park, according to court records. The van rolled three or four times, ending upright on its wheels.
     Duan suffered massive head trauma when the roof caved in, and he later died, after languishing for two years in a vegetative state, Mardirossian said.
     The two back-seat passengers, Yun Yan Zhang and Enjie Guo, weren't wearing seat belts and were ejected through the rear window.
     Mardirossian says the fatal injuries resulted from a combination of an unsta-ble vehicle with a propensity to roll, poor seatbelt restraints and a "paper-thin" roof that caved in as the vehicle rolled.
     In a declaration, Friedman said the Astro's weak roof was the "principal defect" implicated in the crash. The roof crushed in nearly 10 inches onto
passengers, Friedman said.
     But defense attorney Berry said the evidence did not point to roof-crush injury. The 63-year-old grandfather did not sustain a neck injury, typical in roof crushes, Berry said.
     Although the post-crash front-seat headrests were dented, suggesting they'd been struck by the roof, Duan was seated in the middle row, Berry said.
     Berry says Duan's head injuries came from hitting an unspecified hard surface but not the roof.
     "They're basically trying to push a square peg into a round hole," he said of the plaintiffs' roof-crush theory.
     But last week, the judge granted the plaintiffs' motion for permission to seek punitive damages based on the roof-crush theory and set a trial date for April 5, Mardirossian said.
     In the past few years, plaintiffs' attorneys and consumer advocates have fought successfully to uncover confidential data from auto manufacturers on fuelsystem design errors and the role of tireshredding in rollover accidents.
     Mardirossian's push to open up company records on roof-crush in rollovers to public scrutiny is the latest in a trend of plaintiffs' attorneys challenging protective orders around the country.
     If the Duan motion succeeds, safety proponents would win entree to the most complete record on roof-crush data to date, said Paula Lawlor, a litigation assistant at Mardirossian's firm who has spearheaded the effort to make the documents public.
     Richard Sampe, chief counsel for the Washington Legal Foundation in Washington, D.C., a conservative publicinterest law group, questioned trial attorneys' motives in protective-order challenges.
     Attorneys want to "peddle" what they've uncovered through pretrial discovery to other plaintiffs' attorneys to bring about "unbearable settlement pressure," Sampe said.
     "Roof integrity is a dream for plaintiffs' lawyers," he said.
     Sampe noted that they can argue damages on either side of the issue: The roof was too rigid and did not yield, or it was not strong enough, causing serious injury in either case.
     But Joan Claybrook, president of Washington, D.C.'s Public Citizen, a Ralph Nader consumer organization, noted plaintiffs' attorneys have nothing personally to gain from sharing documents they have.
     "When there are crucial life-and-death issues, as there are in this case," she said, "the public is entitled to know what the company knew and when it knew it."
     Plaintiffs' attorneys and auto-safety advocates have been frustrated by the decades-long debate on whether roofcrush contributes to serious injury.
     Berry denied that GM has ever claimed "roof-crush doesn't matter," as safety proponents charge.
     "GM has never made such a blanket statement," he said.
     The company acknowledges "situations where [roof] deformation could have a relationship to injury," Berry added, but not in the Duan case.
     Berry said that plaintiffs' lawyers have set up a "false premise" about GM's claims regarding roof strength.
     "What GM says is that roofs that have the level of strength that meet the current federal standard are good enough, " he said, "and additional strength would not result in added safety benefit."
     At today's hearing, Mardirossian said the judge may consider appointing a referee to conduct an in camera review of three boxes of records in dispute.
     A final decision could come 45 days after either the judge or the referee completes the document review, he added.

The interior of a van involved in a rollover shows the frontseat
headrests crushed from the roof. Bing Lin Duan died two years after the crash from his
injuries. His family is suing General Motors over the roof.