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When Robert D. Hays Jr. stepped to the podium to argue on behalf of General Motors this week, 11th U.S. Circuit Court of Appeals Judge J.L. Edmondson directed him to deliver a sharp message to his client. “Mr. Hays, I would not want GM laboring under the impression that GM handled this case in the way it should be handled,” Edmondson said bluntly. Then, he added, “Let’s talk about whether there is reversible error.” The appellate case, which the plaintiffs lost in a lower court after a jury trial, challenges how much defense counsel is obliged to do in addressing discovery requests. Hays, a partner at Atlanta-based King & Spalding, argued that the firm, as counsel to GM, did not engage in any misconduct or fraudulently withhold prior testimony by its expert witness from the plaintiffs. Plaintiff’s attorney James W. Howard argued that King & Spalding intentionally provided insufficient information in response to discovery requests while disingenuously leading him to believe its lawyers were doing everything they could to cooperate. The three-judge panel grilled Hays at length on the issue, and could reverse a defense victory in the case if it decides King & Spalding wasn’t sufficiently forthcoming and, as a result, altered the outcome of the trial. Hays was subjected to particularly tough questions from Senior Judge James C. Hill. Hill repeatedly pressed Hays and opposing counsel Howard as to whether GM and its attorneys had abused the discovery process and intentionally withheld information that Howard repeatedly had requested regarding its expert witness. At one point, Hill suggested to Howard, a partner with his wife, Sharon Effatt Howard, at The Howard Firm in Tucker, Ga., that King & Spalding simply may have been “stringing along” plaintiff’s counsel, “lulling” them into believing they eventually would receive requested information that GM actually had no intention of releasing. Said Hill, “I remember there was a day that would have been considered unprofessional.” The Howard Firm won a $3.8 million verdict against GM in an unrelated 1997 case. That suit also was a product liability case involving a seatbelt. The third member of the panel is 8th U.S. Circuit Court of Appeals Judge Donald P. Lay, sitting by designation. At issue is a product liability claim that GM won in U.S. District Court 16 months ago. Lawrenceville, Ga., resident Tina Griffith, now 39, had sued the automaker after she was badly injured in a 1997 accident in her Chevrolet Silverado pickup, which is made by GM. Griffith was in the pickup’s center front seat and was buckled in with a lap belt, the only restraint that GM had provided for that position. Her husband and daughter also were sitting in the front seat, where they were restrained with lap and shoulder belts. They were unharmed in the accident. DESIGN DEFICIENCY? But Griffith sustained massive internal injuries that plaintiff pleadings specifically say were made worse by the lone use of the lap belt. GM’s failure to provide more than a lap belt in the center front seat was a design deficiency that GM either should have corrected or warned passengers about, Howard argued. In September 2000, U.S. District Judge Richard W. Story of the Northern District of Georgia issued a directed verdict in favor of GM on all claims except any damages that might stem from GM’s failure to install a shoulder belt in the Silverado’s front center seat. A jury subsequently found in favor of GM on that question. Howard appealed to the 11th U.S. Circuit Court of Appeals. Oral arguments took place Tuesday. Griffith v. General Motors, No. 01-12408 (11th Cir. Jan. 15, 2002). Part of Howard’s appeal is based on his inadvertent discovery after the trial that King & Spalding attorneys allegedly withheld from him information on at least 41 cases in which GM’s expert either had testified or given depositions, according to court pleadings. That information included an up-to-date list of the expert’s testimony in prior motor vehicle product liability cases, sufficient information to track those cases down, and transcripts of the expert George Murray Mackay’s previous testimony and depositions. INFORMATION CALLED CRUCIAL Howard argued that the missing information was crucial to his case and prevented him from impeaching Mackay during the trial. In an appellate brief, Hays claimed that the attack on GM counsel was a “conspiracy theory” manufactured “out of gross misstatements and false accusations.” While Hays acknowledged that a list of cases King & Spalding gave to Howard contained neither case numbers nor the courts in which the cases were filed, he argued that federal rules of evidence did not require the firm to provide that information. The list did include the case styling and the state in which it was litigated, according to defense pleadings. And, Hays told the appellate panel, King & Spalding had provided Howard exactly what the plaintiff’s attorney had given to GM regarding his own expert. However, on the eve of the trial, Hays said, King & Spalding did provide to Howard civil case numbers pertaining to their expert’s prior testimony. The numbers were issued in response to a request from Story. Also at the judge’s request, King & Spaulding attorneys hand-delivered several transcripts of Mackay’s testimony at previous trials. However, Hays said other transcripts requested by Howard were not provided because they were in storage and not easily accessible. The King & Spalding lawyer suggested that Howard either could have asked Story to compel the delivery of the information far sooner than six weeks before the trial or “subpoena the information properly from the experts themselves.” Hays also suggested that Howard could have obtained the same information from Mackay when he first deposed him. STATE COURT CRITICISM Tuesday was not the first time that GM legal teams have been accused of withholding information. In his brief to the appellate court, Howard listed 13 previous product liability cases against GM, in which either the company was sanctioned or was accused of hiding information. Two of those cases were defended in Fulton County, Ga., by King & Spalding. In Bampoe-Parry v. General Motors, Fulton State Court Judge M. Gino Brogdon found in 1994 that GM’s defense, in part, included “recklessly inaccurate misstatements and misrepresentations by [GM's] counsel.” Brogdon also found that “GM, by and through its lawyers, covertly defied court orders as to the existence of the documents at issue. … GM counsel displayed … intentionally evasive and strategical ignorance.” Hays was one of the attorneys in the Bampoe-Parry case. GM already had appealed Brogdon’s order when the auto manufacturer settled that case. In his appellate brief, Hays suggested that plaintiff references to other GM cases were both “reckless” and “a transparent effort to poison the court.” “GM will not rise to the bait to respond to plaintiff’s mischaracterization of these matters, that are, in any event, wholly irrelevant to the legal issues in this case.” On Tuesday, Hill suggested to Howard during the attorney’s presentation that the case’s “discovery problems” might be his strongest argument for reversal. And he cautioned him at one point, “You are diverting my attention from discovery.” JUDGES QUESTION ATTORNEY In questions that the circuit judge continually fired at Howard and Hays during nearly an hour of argument, Hill sought to determine the extent to which Howard had pressed for information about the GM expert’s prior testimony. He wanted to know if he had done so in a timely fashion, whether he had sought help from the district judge, exactly what information GM eventually had provided in response to the discovery request and whether it was usable by the plaintiffs. Federal rules of evidence require the disclosure of all relevant evidence requested during discovery. The discovery process “cannot be a game of hide-and-seek,” Howard’s appellate brief states. The senior circuit court judge’s questions also suggested that Howard had trusted King & Spalding lawyers for nearly two years to turn over documents he repeatedly had requested. “You didn’t recognize that the practice of law as I knew it had changed?” the judge asked wryly. In response to one question from Hill, Howard said he had learned only belatedly that GM and King & Spalding also had access to a more detailed list of information regarding cases in which the GM expert had testified than they had given him. He said he learned of the new list after he overheard GM counsel mention the name of another lawyer during the trial. Howard said he tracked down that attorney, and learned that the expert witness had made a list of those cases available to King & Spalding three weeks before the Griffith trial. Hill also hammered Hays because King & Spalding attorneys never specifically refused to provide the information the plaintiff’s attorney had requested. Instead, they provided a list of cases — without either case numbers or the court in which it was tried — but suggested that its staff still was attempting to fulfill Howard’s request. “That response was a cute response,” Hill suggested. When, over a nine-month period, Howard followed with additional letters seeking the requested information, “Did they get anything by asking their opposing professional brothers and sisters for additional information?” Hill demanded of Hays. “Did they get told they were not going to get anything … and maybe they ought to go to the judge and get an order?” Or, he said, did King & Spalding lead Howard to believe that he “may get it [the sought-after information] one of these days?” Hays answered Hill by saying that the same issue had been raised before Story three times, and that the judge was “obviously satisfied” that GM had not abused the discovery process. “Apparently,” Hill noted, “he was not counseled that GM, I think, was cute in their responses.” Edmondson suggested to Hays that “the problem that might be upsetting some members of the court is any hint of lulling the other side” into believing the requested information was forthcoming. The plaintiffs “didn’t know whether they were going to get cooperation from GM or not,” Hill suggested. “They were not told they were going to get the information. They were not told they were not going to get the information, and so they were lulled.” Hays replied, “I don’t believe there was an effort to lull.”

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