By Mark Hamblett, From New York Law Journal

Plaintiff Robert Scheuer is either the victim of a heartless General Motors cover-up of faulty ignition switches or a man trying to blame GM for injuries he suffered long before his 2014 car crash in Oklahoma, attorneys argued Tuesday.

These competing portrayals were unveiled in Southern District Judge Jesse Furman‘s courtroom during opening arguments in the first of six bellwether trials that are expected to set the value, if any, for more than 300 cases consolidated in Manhattan.

“Where else can a mailman from Oklahoma go toe-to-toe with a company like General Motors and have his day in court?” Scheuer lawyer Robert Hilliard asked the jury. He told jurors that, in four weeks’ time, they had the opportunity to deliver a “verdict of national significance.”

Hilliard then had Scheuer stand with his wife, Lisa, and their 5- and 11-year-old daughters, arms around each other. Both of the girls were holding dolls and smiling.

Scheuer said the trial would “unwind the cover-up and the fraud at General Motors,” and he showed pictures of an active pre-accident Scheuer golfing at a driving range.

He then displayed a photo from the couple’s wedding day, telling the panel they would hear from Lisa Scheuer “about the kind of man he was” before the accident, of the family trips not taken, “of the pain, the surgery, the devastation.”

All of it, Hilliard said, “the result of a conscious decision made by General Motors to a put a defective ignition switch in millions of cars.”

Hilliard said the ignition switch forced GM to issue a massive recall notice in 2014 and ultimately spend hundreds of millions of dollars to fend off criminal charges and settle civil claims.

He demonstrated how it operated—and said the company elected to keep on the shelves defective switches that easily could be bumped to the “accessory” setting, which shuts off the power steering and brakes and renders the air bags unable to deploy.

Hilliard, of Hilliard Munoz Gonzales in Corpus Christi, Texas, opened the driver-side door of one of his main exhibits, the front third of a car assembled in the courtroom and parked in front of the judge’s bench, to demonstrate how the seat belts are supposed to work in relation to the air bags.

Hilliard described how Scheuer, after receiving his recall notice in 2014, followed the company’s instructions to remove all but the ignition key from the key chain. The notice told Scheuer that the ignition could change slots, not only when there are a number of objects on the key ring but also when a vehicle goes over “rough roads” or “jarring on impact.”

So when Scheuer’s 2003 Saturn Ion allegedly swerved to avoid an accident and ran off the road on May 28, 2014, he hit several trees and claimed the safety features didn’t work.

Hilliard showed jurors an animated version of the crash. They then saw a photo of Scheuer strapped to an EMT gurney, about to be airlifted to a local hospital.

Hilliard finished by detailing General Motors’ efforts to conceal its knowledge of the defects going back over a decade and the company’s attempts to manage public relations.

He also put up a chart that showed “other similar incidents” (OSIs) that will be allowed at trial, including crashes where air bags didn’t deploy. Ten people were killed and more were severely injured in the OSIs.

Plaintiff on Notice

But Mike Brock of Kirkland & Ellis, representing General Motors, gave the jury an entirely different view of the evidence.

He began with the letter Scheuer received in 2014 and his adjustment to his key chain, factors that Brock said make the Scheuer case very different from the OSIs.

Brock said the National Highway Traffic Safety Administration signed off on the recall notice and agreed the cars were safe to operate if “the cylinder is not attached to a key ring containing other items,” making an argument that Scheuer knew what he was doing.

“Nothing was withheld from him—he was told precisely what the problem was,” Brock said. “This vehicle performed the way it was designed to perform.”

Air bags are not designed to deploy “on every little bump,” because the air bags pose their own risks and are therefore designed only for the most severe crashes, he said.

Brock then went after Scheuer’s credibility, saying “he didn’t lose control of his car because of the ignition switch,” and never lost power brakes or steering. He said an investigating officer, remarking on the gradual curve the Ion took as it moved off the road, found the accident scene more indicative of someone who had fallen asleep behind the wheel.

The only reason Scheuer was airlifted to the hospital was because he complained of numbness in his legs. Otherwise, he came out of the vehicle without obvious injuries. At the hospital, he said, Scheuer complained of no trauma, neck or back pain and left the following day, Brock said.

Scheuer, he said, had suffered an industrial accident years before the 2014 crash and had spinal problems. He suffered from a degenerative condition in his back for more than 20 years, had two lower back surgeries and received extensive treatments along with pain medication.

Scheuer claimed to have been unconscious at the scene of the accident for nearly three hours beginning at around 2 p.m. But Brock said cellphone records showed Scheuer called his answering service at 2:19 and checked his voicemail again at 3:25.

As for GM, Brock said, “There were mistakes and errors in judgment along the way,” but the company had taken action, fired 15 employees, set up a compensation fund for people injured by defective switches and had otherwise recommitted itself to safety.

“We have a strong case that his switch did not rotate, that his air bags were not designed to deploy … and that Mr. Scheuer’s injuries, if he has any, are not different from what they would have been” absent the allegations of a defect, he told the jury.

“This vehicle performed the way it was supposed to perform.”

IMAGE: briefcase form template thank you template One of the plaintiff’s exhibits, the front third of a car, in the courtroom NYLJ/Mark Hamblett

For more on this story go to: http://www.newyorklawjournal.com/id=1202746901197/Jury-Hears-Two-Vastly-Different-Portrayals-of-GM-Plaintiff#ixzz3x8om3JXd