Long-suppressed General Motors documents just made public in a Florida lawsuit raise the question of whether U.S. Special Prosecutor Kenneth Starr behaved ethically when, as a GM lawyer, he fought hard to suppress possible evidence of perjury by a key GM witness.
Last week, Broward County, Florida, circuit judge Arthur Franza, hearing a lawsuit brought against General Motors involving a GM car fire, ordered GM to release a 1981 interview by GM lawyers with Edward Ivey, the engineer who in 1973 prepared a cost-benefit analysis of burn deaths in GM vehicles. In the infamous analysis, Ivey assigned a $200,000 value to a human life and estimated that fuel-fed fire deaths cost GM $2.40 for every GM vehicle on the road. That analysis, along with internal GM documents estimating the cost of fixing GM's vulnerable fuel tanks in its C/K pickup trucks, suggests that GM decided it would be cheaper to risk lawsuits from burn deaths than to recall its vehicles and make changes to its fuel tank.
In subsequent lawsuits brought against GM on behalf of burn victims, Ivey testified that he could not recall why he wrote the analysis or whether he gave it to anyone at GM management.
But in the newly released 1981 interview, Ivey tells GM lawyers a very different story: He says he prepared the analysis "'for [GM's] Oldsmobile management'" -- after he was sent to try to "figure out the magnitude of the problem with fuel system litigation" -- in order "to assist them in 'trying to figure out how much Olds could spend on fuel systems.'" Oldsmobile was the division responsible for GM's fuel tank design. According to the document, Ivey also said he "probably circulated copies of the report" to specific GM officials.
If Ivey did give his analysis to GM officials, the company could face stiffer challenges in lawsuits related to deaths and injuries attributed to the C/K pickup's "side-saddle" fuel tank. The C/K tank has caused as many as 800 deaths, according to Clarence Ditlow of the Center for Auto Safety. GM redesigned the tank in 1988, but never recalled its older models, instead settling with the U.S. Department of Transportation for $51 million in 1994.
"The consequences [of the release of these documents] are so staggering that I really am at a loss for words," says James Butler Jr., who has been a plaintiff's attorney on 10 GM pickup fire cases -- three opposite Starr. "We've been pursuing these documents since '91 in various cases. Ivey has testified that no one asked him to do this, and GM has said no documents relating to the Ivey memo existed." Butler could not say whether any of the prior fire cases against GM will be reopened, saying only, "That is under consideration."
Correspondence obtained by the MoJo Wire shows that Starr, who represented GM in a South Carolina auto fire case, knew at least by February of 1994 that Ivey may have changed his story. Plaintiffs' attorneys in Cameron v. GM notified Starr that the 1981 Ivey interview had been "misidentified" by GM lawyers and should have been produced along with other Ivey-related documents the month before. Furthermore, the letter says that plaintiffs suspected Ivey had changed his story since that interview.
But the 17-year-old document has been kept out of court until now largely due to the efforts of Starr, who in January, March, November, and December of 1994, filed at least seven motions in the Cameron case in order to conceal, under the attorney-client privilege, another confidential memo by GM lawyers that made a direct reference to the damaging Ivey interview. No jury has yet seen this memo, but GM counsel confirmed this month that it "essentially contains the same information" as the 1981 Ivey interview released last week.
The discrepancy in Ivey's stories could be an "ethical dilemma" for Starr, says University of Santa Clara law professor Gerald Uelmen. It would be appropriate, Uelmen says, for Starr to try to keep documents out of court that can be protected under attorney-client privilege. "But he also has an ethical duty not to present perjured testimony to the court, and not to perpetrate injustice by allowing perjured testimony to be presented," Uelmen says. If Starr knows Ivey perjured himself, says Uelmen, "he has an ethical obligation to make it right by withdrawing the perjured testimony."
Starr went to great lengths to suppress the Ivey interview memo, successfully moving to have two trial judges' orders reversed by an appeals court, and to have the first trial judge recused from the case because he had spoken at a legal seminar where plaintiffs' attorneys were also speakers.
The first judge, G. Ross Anderson, was so incensed by GM's suppression of the Ivey interview memo and other documents, that he wrote, as he stepped down, an extraordinary recusal order saying his review of the documents led him to conclude that "perhaps perjury" occurred, aided by GM lawyers, and that these documents should be admitted into court. Starr successfully appealed to have this stricken from the record.
The second judge, Charles H. Haden II, also ruled that much of the Ivey interview memo was not privileged, and ordered GM to release the document to plaintiffs. One month later, GM settled the Cameron case for an undisclosed amount, and Starr again went to work cleaning the record, asking the appeals court to vacate Haden's order regarding the secret documents after the case was closed.
The move is "highly unusual after a case is closed," Haden told the MoJo Wire. "I thought when the case settled, it was over."
Starr, who is investigating whether President Clinton coached former White House intern Monica Lewinsky to commit perjury, refused to respond to repeated phone calls and faxed questions for this story.
Starr's law partner, Jay Lefkowitz, who signed many of Starr's pleadings in the Cameron case, refused to comment on GM's privilege claims. Lefkowitz has been subpoenaed to produce documents and testify in the Florida case, and is scheduled to testify on March 5.