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Ford Motor Co.’s assertion that a crash victim died not from a defective airbag but at the hands of her husband has prompted the plaintiff to cry slander, which is promising to turn a garden-variety product liability case into a defamation suit. What’s more, the case puts at odds two medical forensic experts who have butted heads before: Michael Baden and Elliot Gross, who have espoused diametrically opposite views of the cause of death in the case. In meetings with state and local officials in January, Ford said that injuries to Tracy Thomas, a Cape May Courthouse, N.J., woman who died in a February 1997 low-speed collision, are not consistent with an airbag impact but instead appeared to have been caused by manual pressure on her throat. In response, the victim’s husband, Eric Thomas, has asked U.S. Magistrate Judge Joel Rosen in Camden, N.J., for permission to amend his complaint to add a defamation claim in Thomas v. Ford. Ford’s theory that Thomas strangled his wife, who was six months pregnant at the time, was developed by two expert witnesses, pathologist Michael Baden and engineer James Benedict. Their finding was based on — but took issue with — an autopsy report by Cape May County Medical Examiner Elliot Gross. Describing marks on the victim’s neck and broken blood vessels in her eyes, Gross concluded the victim’s death was not caused by foul play. But Baden wrote that she died “at the hands of another,” according to the defendant’s lead counsel, William Conroy, a partner in the Wayne, Pa., firm of Cabaniss, Conroy & McDonald. Baden did not return calls requesting comment, and Gross could not be reached. Ford advanced its view about the woman’s death earlier this year in a meeting with Gross and Cape May County Prosecutor David Blaker. The company also asked the prosecutor’s office and the Middle Township Police Department to reopen the investigation. Although Baden’s report in the death of Tracy Thomas does not name her husband as the killer, the plaintiff’s lead counsel, Thomas Mellon of the Doylestown, Pa., firm of Mellon, Webster & Mellon, says Ford’s intention in submitting the report is to intimidate Eric Thomas. “Ford made those allegations outside of the instant litigation. Therefore, Ford is not immune for liability for any such allegations,” the plaintiff’s counsel wrote in an amended complaint. “Ford lacks any good faith basis for alleging that plaintiff Eric Thomas murdered his wife Tracy Thomas. The aforesaid statements that Eric Thomas murdered his wife expose him to hatred, contempt and ridicule and subjects him to the loss of the goodwill and confidence in which he is held by others,” the amended complaint continued. The Thomas case is not the first time where Baden’s path has crossed that of Gross. In 1979, Baden was the New York City medical examiner when he was fired by Mayor Ed Koch over alleged incompetence, and Gross was named as his replacement. Amid the controversy, Baden alleged that with Gross at the helm, the medical examiner’s office misplaced bodies and organs and took payoffs from funeral directors. Baden filed suit in federal court against the city over his firing, but the U.S. Court of Appeals upheld the city’s right to fire him in 1980. Later, Baden was fired from another job as medical examiner in Suffolk County, N.Y., after he was quoted in an article on “high-tech homicide” that appeared in Oui magazine. In the article, Baden was quoted describing how murder could be committed against hospital patients, drugs that could be used, and ways to avoid detection, according to an Aug. 11, 1983, article in The New York Times. Baden later denied making the comments, but Gross was quoted in an Associated Press article as denouncing Baden’s comments “on a moral, ethical and legal basis.” Baden gained fame when he testified as an expert witness to help exonerate O.J. Simpson of murder charges. He also was called in to consult on an investigation of the death of John Belushi and on the murder trial of British nanny Louise Woodward. On the day of her death, Tracy Thomas was driving the family’s 1996 Ford Explorer. Her husband was in the passenger seat and their daughter, Alix, then 16 months, was in a child safety seat in the back. The vehicle was going about 15 miles an hour when Tracy swerved to avoid a deer in the road, then hit an icy spot and struck a utility pole, according to the police report. She was dead at the scene. Eric Thomas was unconscious when a passerby found the wreckage an hour after the crash. The child was unhurt. Eric Thomas’ suit against Ford alleges that the airbag was overpowered, that the crash sensor impact threshold was set too low, and that the car seat was not properly designed to accommodate short women. The suit also names two makers of airbag components, TRW of Cleveland and Breed Technologies of Lakeland, Fla. Another status conference is scheduled for Aug. 14, and the trial is expected to start early next year. Still to come in the case are depositions from the victim’s parents, who live in Massachusetts and are expected to describe Eric Thomas’ behavior after the accident, Conroy said at a status conference last January. Eric Thomas has instructed the victim’s parents not to display photos of their daughter or mention their daughter’s name whenever Alix visits, Conroy says. The defense has also sought a deposition from Eric Thomas’ new wife, Stephanie. In March, Magistrate Judge Rosen denied a request by the plaintiffs to seal materials containing the allegations of wrongdoing in the case. He found that the product liability dispute is a matter of public interest. That decision came after both sides argued sharply over what Conroy claimed were Mellon’s efforts to obtain publicity favorable to Eric Thomas. For example, he made a taped appearance for the “Good Morning America” show that focused on dangers that airbags pose for shorter women, but the segment has not aired. The death was investigated by the Middle Township Police Department. When Ford’s lawyers brought the conclusions of its experts to the local authorities, Blaker, the Cape May County Prosecutor, reviewed the case, and his office concluded that there was no wrongdoing. “We reviewed the new information, and there’s certainly nothing new there that would indicate this was anything but a tragic accident,” says Blaker. “We reviewed the information they have given us, the opinions of two forensic pathologists, which vary from the opinion of the county medical examiner. It’s a civil case, I think, where we have a battle of the expert opinions.” Conroy, Ford’s attorney, points to testimony by Gross in a deposition that if he hadn’t known Tracy Thomas was in a car accident, her pattern of injuries might have suggested she was strangled. Eric Thomas took two polygraph tests, one in his lawyers’ office and the second, at his own request, at the Cape May County Prosecutor’s Office, says Elliot Kolodny, Mellon’s fellow partner. And a separate investigation of the crash by the National Highway Traffic Safety Administration also exonerated him, Kolodny says. Kolodny says future discovery will focus on what was said at a meeting between Ford and the local Cape May County authorities. “We allege that Ford, its attorney, and its in-house engineer went down to the medical examiner, to the police, to the prosecutor, in an effort to drum up an investigation where none exists,” says Kolodny. “There is clear case law in New Jersey and in the 3rd Circuit concerning the litigation privilege in the judicial arena, and the fact is this ain’t the judicial arena,” he adds.

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