A Thorny Case

The case of Frank Jones v. General Motors began with a telephone call from the father of a young man who had been in an auto accident. At the time of the call, Mr. Jones was the director of maintenance of the Rensselaer Polytechnic Institute fieldhouse in Troy, NY. Mr. Jones told me that his son, Frank, had been paralyzed in an auto accident and an action had been brought against General Motors.

Frank’s 1988 Chevy Corsica was equipped with a defective hood latching system. This allowed the hood to unexpectedly be released while driving, sometimes flipping up in front of the windshield, and blocking the driver’s view of the road. Young Frank, who had worked tirelessly for several years to develop a shelter for troubled persons, had been driving east on Route 2 in Tory en route to his home in Hoosick Falls. It was late in the evening. When the hood suddenly came up, Frank lost control of the vehicle. The car went off the road and tumbled into a drainage ditch. Frank was thrown from the vehicle and received spinal injuries, a broken back.

The family retained a well-known personal injury lawyer but the case had been dismissed by the judge. Turns out, the lawyer couldn’t find the car! The attorney had been retained nine months after the accident, following Frank’s hospitalization and rehab. During that time, the car seemed to have gone missing.

The lawyer not only visited the scene of the accident and investigated himself but also hired a private investigator to track down the car. Neither was successful.

When making a claim for a product defect, you must have the defect identified and have the product in question evaluated by engineers.

Without the car, the attorney couldn’t have the defect examined so the case foundered.

There had been a series of recalls on this particular model. The recalls were voluntary on the part of Chevrolet. The hood latching system on a car is complex. Replacing the entire system would be expensive. On these recalls, various cars were examined and only adjustments were made to attempt to overcome the design defect. None of the recalls ordered a full replacement.

Regardless, with no vehicle available to examine, the judge had to dismiss the case. This dismissal was the result of a motion by a General Motors lawyer named Arthur Thorn out of Albany. An entirely ordinary-looking person, Thorn was a regional counsel for GM and was a senior partner in a defense firm that represented GM and other companies. Thorn oversaw and handled any lawsuits or other actions involving GM throughout New York, Massachusetts, and Vermont.

For companies like GM, regional attorneys receive special training over the years and have access to GM’s product engineers and other specialists. So when the company gets sued for product defects, the full weight of both the law firm and General Motors is behind the defense. You are not just fighting one lawyer. You are also fighting a gigantic GM and its wealth of engineering expertise.

These cases are among the hardest fought. If one results in any single jury verdict for someone badly injured or killed,  it can open the door to many other lawsuits. Thus, they are going to fiercely beat back any claim of a product defect. Otherwise, GM and other manufacturers can be met with an avalanche of cases costing these companies billions of dollars.

After telling me his son’s case had been dismissed, Mr. Jones asked me whether I would be willing to undertake an appeal. I explained the challenge. If we couldn’t find the car there was no point. No car, no case. But I told him I would try to find the car.

I retained a well-known investigating firm and after some time they, too, were unsuccessful. Meanwhile, I did file a notice of appeal to keep the case alive. I assumed if I found that car, I could get a judge to reverse the dismissal or get the case reinstated.

I then did some sleuthing, as I often do in cases where the investigators run into a stone wall, or run down blind alleys. By combing through motor vehicle records, I was able to locate Frank’s car.

Although there were some gaps in the records, I was actually able to determine that GM’s lawyer Arthur Thorn had personally acquired the car and hidden it in a garage. Then he had gone before the court in Troy and moved to dismiss the case, knowing the plaintiff did not have possession of the vehicle and therefore could not prove a hood latch defect. Frank did not even remember how the accident happened; he had total amnesia.

After finding the car, I went to Thorn’s office and talked to one of his partners, and told him I had found the car. This particular lawyer then showed me pictures of the car. Not only had they acquired the car, but they had also done some analysis on it. He was trying to show me there was no defect, so finding the car would do me no good. Of course, there was no way I was going to abandon Frank based on lawyers so untrustworthy and deceptive.

So I went to the court and made the appropriate motions and had the case opened up and returned to the court calendar.

I brought in an engineer from Indiana. He said that the hood latch looked like it had been closed and later pried up with a crowbar. He also believed the roofline of the car had been altered after the crash. There may have been some effort to disguise the defect in the mechanism. This would make it hard to establish a definitive opinion about the initial defect. Was it GM’s fault?

After learning this, I made a motion to have the court rule that Thorn should not be permitted to defend the case. We believed that the hood latching system and the roof of the car had tampered with in an effort to keep us from reconstructing the path of the car and what had actually caused it to leave the road. I claimed the evidence had been spoiled after having been in Thorn’s possession for months before I was able to find it.

Shockingly, after extensive legal maneuvering, the judge refused!

I took an appeal to a higher court, the New York Supreme Court Appellate Division, Third Judicial Department. I argued that based upon the fraudulent withholding of evidence and misconduct of Thorn, the delay in allowing us to examine the evidence, and an expert’s opinion the evidence had been altered, a ruling for my client was in order.

I don’t mind saying straight out that I believed there were “judicial politics” affecting the result. The defense counsel actually had the temerity to personally appear in the court to argue the appeal, which was astonishing. One of the judges read him the riot act and excoriated him, up one side and down the other.

But the other judges said very little.

The Appellate Division, Third Department is a so-called hot bench—this means they make decisions within three to four weeks of hearing arguments. Unlike some other courts, these judges have read all the records and attorney legal briefs and ask questions based on those submissions when the case is argued. In this case, however, the court took a very, very long time to issue an opinion. Why? We waited and waited.

The former Presiding Judge (chief justice) of this court made every effort to ensure that all opinions and rulings were made unanimously so there could be no further appeal. He did not like split decisions, as this affects whether a person can appeal further. If a person loses a decision 5-0, there is no further appeal to the top court, the Court of Appeals, without permission of the court, which people rarely get.

Shockingly, the judge who wrote the decision against us allowed the case to continue with Thorn defending. This judge was from Rensselaer County. He and the lower court judge who had ruled against my client were longtime friends from Troy. Judge Ceresia had made the first decision in the case allowing GM and Thorn to continue to defend. On appeal, Judge Spain wrote the decision against Jones and allowed Thorn to continue to defend GM.

At the time, I was so incensed I vowed to myself that some day when Spain retired from the court I would confront him. I had appeared before him many times when he was a Police Court Judge and had always had a positive opinion of his judicial temperament.

He was a guy who tried to rule reasonably on people charged with criminal offenses. He was not a soft touch, but a fair guy, or so I thought. But in my opinion, he let Thorn get away with legal murder. Why did he rule in a way that was so out of character, so utterly unfair, and unreasonable? I had every right and reason to suspect a non-judicial motive.

More importantly, in the end, the appellate decision didn’t come down for months! We heard through the grapevine that there was a lot of conflict about our case. But the judges, in essence, were forced to make a unanimous ruling so as to not embarrass the lower court judge.

We continued to litigate the case. During its course, a lot of motions were made. I had an experience with Thorn that I never had before or since.

When you submit a motion, you are petitioning the court for an answer to a question that arises during litigation. You may want to suppress a witness or piece of evidence or argue that the judge should make a ruling on the admissibility of evidence. You might make motions on depositions you’ve conducted and you may need the court to force an answer to a question put to an unwilling witness. This is normal and sometimes these questions have to go to a higher court if you don’t like the judge’s ruling.

This process makes these cases drag out.

When you submit these motions, you have to include both your reasons and a memorandum of law on the subject to show what the law has said on similar cases in the past. Of course, the defendant has the opportunity to submit an argument for why your request should not be granted.

Thorn would submit oppositions to my motions and would include references to previous cases and quote from them as though they worked against my position. In reality, most of the case law he cited favored my motions! The best that I can say is that they were boldly read wrong by Thorn. The cases either didn’t apply or were misquoted.

In almost 60 years of practice, I’ve never seen the likes of this.

He must have assumed the judge’s law clerk would not read the cases he cited. In one motion, I made a two-column page: Column A was what Thorn had said, and Column B was what was wrong with it. This didn’t occur merely occasionally; it was consistent throughout the motions that were argued.

I don’t know how to characterize his conduct except to say it was un-lawyerlike. While I certainly didn’t get all the rulings in my favor, I don’t know of any rulings that were based on his submissions. They were so off base. He would make raw assertions and then back them up by previous court decisions that simply did not support his statements.

Not surprisingly, when we got close to the trial, GM brought in a battery of five of their top engineers. I only had the one engineer who said his opinion would be very weak. With damaged evidence and weaker testimony, we had no choice but to settle. The client was offered $500,000, which we took. If we had been successful, the award could have been a few million. But that was not to be.

Some years later, I learned that the Appellate Division, without any complaint from me, brought charges against Thorn for his profressional misconduct in this case. He fought the court and the Bar Association but ultimately lost. In 2001, the decision was made to censure him publicly.

As a result, the public was made aware of what he had done—that he had hidden evidence and deceived the court. While disbarment would have been more appropriate, this was not an insignificant punishment. It continues to stain his reputation to this day.

I have since talked to lawyers in Rochester, Binghamton, and Vermont who had all gone up against Thorn in court. Many of them believed their clients were the victims of altered or hidden evidence. I don’t know if any of those were brought to the Bar Association as well.

After the settlement, Frank Jones went out and bought a van and had it rigged so he could sit in his wheelchair and drive. Unfortunately, he was soon in another accident. This time his head hit the van’s roof. He broke his neck, was rendered a total quadriplegic, and ended up on a ventilator. I frequently visited him in the nursing home where he was being maintained, barely alive. He died less than a year later… a sad ending to a sad tale.