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The estate of an accident victim who won the biggest crashworthiness award in New Jersey history has filed an unusual post-trial fraud claim accusing General Motors of concealing evidence that might have made the recovery bigger. In nine years of litigation that ended with a $22 million recovery, GM refused to accede to discovery demands by plaintiff Michael Green, of Livingston, N.J., about the T-roof design in the Camaro Green was driving when he was paralyzed, the suit says. In 1997, four years after a mistrial and one year after a second trial in which Green won compensatory damages, his lawyer, Maurice Donovan, learned by happenstance about internal documents showing the company had doubts about the roof’s design. Donovan, of the West Orange, N.J., firm of Wald & Del Vento, says that if GM had complied with discovery orders, he would have used the documents to prove the design defect claim at the first trial. He also could have used the papers to seek punitive damages on the theory that GM marketed a car it suspected was unsafe. GM says it has never been hit with such a discovery fraud suit, but Donovan says, “with these documents we would have prevailed in 1993 and Green would have received what was due to him much earlier.” Green died last year of complications from his injuries. Representing Green’s estate, Donovan claims that GM’s nine-year failure to provide the documents despite discovery requests that covered them made the company an enterprise engaged in fraud under the New Jersey Racketeer Influenced and Corrupt Organizations Act. That statute permits the recovery of treble damages and attorney fees. Since the 1960s, plaintiffs’ lawyers and consumer advocates have been complaining that the automobile industry routinely withholds incriminating evidence of defects. Yet Donovan knows of no previous suit like his, and GM says it hasn’t seen one either. “We’ve never been hit, after a trial, with another lawsuit charging tortious interference,” says GM spokesman Jay Cooney. “We firmly believe that no GM lawyer or employee acted improperly,” he says. “We will vigorously defend, and we are in the right.” The executor of Green’s estate, Steven Newman of Bethpage, N.Y., is the plaintiff in Newman v. General Motors, Civ. 02-0135, lodged in Essex County Superior Court and removed to federal court in Newark on Jan. 11 by GM counsel Stephen Payerle, a partner in Newark’s Carpenter, Bennett & Morrissey. GM has never wavered from its defense that speeding and Green’s failure to wear a seat belt caused his injuries in a Camaro IROC Z28 that crashed in 1988 into a school van in Roselle Park. Some jurors agreed. At the 1993 trial, an Essex County jury deadlocked on Donovan’s claim that the collapse of a too-slender T-roof caused Green’s massive spinal injuries. Even without documentary proof that GM considered other designs out of safety fears, Green won $25 million, including interest, at the 1996 retrial. The verdict caused a stir among lawyers with suits against GM, particularly cases involving Camaros. One of them, Patrick Ardis of Wolff Ardis in Memphis, Tenn., contacted Donovan, and they compared the evidence received in discovery from GM in their similar cases. Their conclusion: They had both failed to receive relevant material. The judge in Ardis’ case agreed and ordered a search of GM’s archive. In the end, Donovan received documents he claimed GM should have turned over years earlier. They showed that GM had considered alternative designs that would have provided sounder structure to the roof but picked the T-configuration because of its “macho” look and sales appeal. The state Appellate Division panel hearing GM’s appeal of the 1996 verdict signaled its belief in the documents’ relevancy by allowing Donovan to supplement the record with them, and affirmed the verdict. Green ended up with $22 million in judgments against the automaker. Failure to turn over the material during discovery shows that “GM acted in willful and wanton disregard of consumers and the public at large,” the suit says. Donovan says it’s sad that Green, after fighting 10 years to obtain the millions that finally made him comfortable, died so soon afterward. His father, stepmother and other relatives are the beneficiaries of his estate, and if Donovan wins this case they’ll get even more. Still, he says, “the thrust of the litigation is not to reward Green’s relatives, but to punish GM.”

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