Not Just a Safety Defect

When I took the case that became Adams/Esparza v General Motors, filed and tried in the San Francisco Superior Court in 1983, General Motors was the largest manufacturing company in the world. Today, it is a limping behemoth just emerging from bankruptcy following a generous bailout from the United States Government. What I found was going on inside the company in the late1970s turns out to be what was still going on in 2002 and after the bankruptcy.

When, as reported in the New York Times on its March 25 front page, GM engineers attended a meeting in May of 2009 where it was conclusively determined that an ignition defect existed in hundreds of thousands of cars and the company denied the fact for years thereafter, then we are dealing with something other than arrogant incompetence. We are, I am afraid, looking at an inevitable consequence of our devotion to the corporate model and its building block of greed.

As a veteran several years of General Motors safety defect litigation, I find the stories of the ignition defect both seriously disturbing and in need of some context. This essay addresses the need for context because the story is so disturbing.

GM manufactured and sold nine million pickup trucks from the model year 1973 through 1987. It was the only pickup manufacturer that placed its fuel tanks outside the vehicle’s frame rails and just inside the sheet metal of the body. The Chief Engineer on the truck at the time of the design’s initiation, Earl Stepp, testified that the peculiar placement of the fuel tank was really intended to allow for the uniform installation of two twenty gallon tanks – one on each side, outside the frame rail. It was, he said, a response to the requests from GM marketing for more fuel capacity and safety enineeringwas not a consideration.
The peculiarity of Stepp’s design was not only that it was different from that of other truck makers, but also because it clearly violated GM’s internal fuel tank design safety standard that was established and published internally long before Mr. Stepp took over as the Chief Engineer. The problem was that the fuel tank, containing the destructive energy of roughly twenty sticks of dynamite, was exposed to likely collision forces. In the ordinary side-impact, the incoming vehicle or light pole or whatever would easily crush the body’s sheet metal and then proceed to crush the tank itself against the frame rail resulting in a burst or a tear. The fuel is then released in a spray and the spray is the most volatile form of gasoline – it will likely ignite and the result is very often a firestorm. This was not a matter of sophisticated engineering.

As a measure of the severity of the defect, the Fatal Accident Reporting System ( FARS) properly searched, produces a number on which it is reasonable to rely as fatalities caused by the defect. That number, in the case of the GM pickup fuel tanks exceeded 870 by the time I stopped counting in about the year 2000. That makes that defect the worst in American automotive history.

Ultimately, the relentless pursuit of documents by tort lawyers revealed a concerted corporate effort to keep damning secrets, even its repeated violation of the National Highway traffic Safety Act ( NHTSA) by “fudging” on required crash testing. The Secretary of Transportation, Federico Pena, issued an unprecedented report in October of 1994 which included the following fifth conclusion about the side mounted fuel tank design:

…”of crucial importance in this matter, is the evidence that GM was aware, possibly as early as the mid-1970’s but certainly by the early 1980’s, that this design made these trucks more vulnerable and that fatalities from side-impact fires were occurring. However, GM chose not alter the design for 15 years.”

Like the pickup’s fuel tank design, the ignition in these GM product appear to be “peculiar”, i.e. no other brand seems to be experiencing the disconnect associated with these GM products. Like the pickup’s fuel tank design, there is no question that GM engineers knew that the ignition switch design was defective years preceding the ultimate mea culpa of a few weeks ago.

I had, for years while I was in the midst of the litigation with GM, concluded I was dealing with a simply arrogant giant willing to cover up the incompetence of its own engineers and leadership. In that, it seemed perfectly average among corporations. Of course, that conclusion is still true but more of an explanation is needed – an explanation and some serious thought to what we do about it.

It is probably true that many organizations, public and private, function as a tribal culture. Groups within the entity evolve their own rules and loyalties, often without concern for the goals of the company or the agency. In GM’s case that tribal culture creates a clear and real danger to the public at large. The way the tribe worked at GM is that a group would follow a leader and depend on the leader for advancement. Job performance is only a minimal requirement because the tribe acted to insulate the individual from accountability so long the individual remained loyal to the tribe.

For nearly all the years that I was involved in suing GM, it was the largest manufacturer in the world and its approach to litigation reflected that fact. In the first matter I handled, Adams/Esparza v GM, GM counsel showed up at the San Francisco courthouse on the first few days of the trial in chauffeured limousines ( two of them) that carried lawyers and support staff that outnumbered me and my staff by about ten times. In that case, GM brought in full size vehicles to demonstrate the wisdom of its design and conducted a special full scale re-enactment of the subject collision – all of this in a warehouse attended by the court and the jury.

Seven years later in Woodland, California, limousines weren’t necessary. The defense forces were ensconced on two floors of an office building across the plaza from the courthouse. Every day lead counsel, his associate and four or five paralegals and younger lawyers with clerical staff pushing carts laden with boxes would march across the square as a Roman legion might have marched into some undefended European city. In the meantime, I would approach from the rented two bedroom apartment four blocks away pushing my hand truck.

Ultimately, I sought punitive damages because people kept dying and suffering unspeakable misery from burns. Ultimately, too, I would not agree to confidentiality in settlements (GM lawyers actually forced me to testify once about the amount of the settlement after the verdict in Adams/Esparza ).

It appears that in the case of the ignition defect this country cannot patiently abide the conduct of GM, maybe because it is a beneficiary of our concern for it and the communities that depend on it. We aren’t talking about a hard working company that fell on bad times because of matters beyond its control. We are, instead, confronted by an operation that encourages malfeasance.

As made clear in recently published analyses, the cover up of this defect and the existence of viable claims against the company prior to bankruptcy is a betrayal of the Nation. That’s an object lesson that greed is, in fact, not good.

Posted in General Motors, GM Bankruptcy, Ignition defect, NHTSA, Pickup Fuel Tanks, Uncategorized | Tagged , , , | Comments closed


While this appears as a blog, if “blogs” are expressions of opinion, this doesn’t qualify. I’m really looking for some discussion – some ideas about what I perceive as a problem that relates to the flow of people from one country to another, like immigration, but very different with seemingly different consequences.

From my North American west coast vantage point, I’ve seen no debate about a subject that may well be a keystone of international progress. The concern, in a nutshell, is that the USA sucks the best and the brightest from their native lands, leaving those lands without these superior human resources needed to stem the tides of poverty and ignorance. American institutions – Universities, Government agencies, technology corporations, pharmaceutical giants, hospitals – recruit, train and employ the brightest and most motivated of people from countries that are absolutely poverty stricken, e.g. India, Philippines, Pakistan, Nigeria, Mexico, Afghanistan and Palestine . Nearly all of these people stay and prosper here. Is this a good thing?

It must first of all be observed that the right to travel internationally is a highly important one. It is one mark of a civilized society. Autocratic regimes are often characterized by restrictions on travel in or out of a nation. These restrictions are a clue to the sort of state paranoia that fuels horrors like genocide.

Fidel Castro, in the early days of his tenure in Cuba, imposed what was labeled a “diploma tax”, requiring people educated in Cuban institutions – particularly medical schools- to pay the state the equivalent of the cost of the education if they wanted to leave the country. The anti-Castros and self-righteous American bourgeois damned such a practice as an immoral restriction on the right to travel. I saw the proposal as perfectly reasonable, given the sacrifice made by the Cuban people to educate these wannabe émigré’s. It wasn’t really a restriction on travel that prevented travel.

The situation that bothers me is not exactly the same. In the most prevalent contemporary practice, the `émigré comes to this country to be educated and stays. There are other practices that recruit in the donor country and train there or elsewhere before immigrating to the US. I think that American universities actually recruit among the foreign elite, probably because such students pay their full freight, i.e. retail tuition and fees. Obviously, American technology companies actively recruit abroad. I think, but have not confirmed, that there are US Government programs that pay tuition for foreign students in American institutions of learning.

Last year, I had another in a long line of surgeries on my nose to remove basil cell cancers. The surgeon was an East Indian woman who had been born in India but raised and educated in this country. The Department of Dermatology at Kaiser Permanente in Oregon is constantly challenged to keep doctors – since moving to Oregon in 2002, I’ve had four, none for more than one visit. The Indian woman is gone – she took a job elsewhere, shortly after my surgery. The current practitioner is a first-generation Persian (Iranian).

The surgeon who performed cardiac by-pass on me in 1999 is Turkish. A vascular surgeon I consulted a few years ago is Pakistani. The proprietor of a large veterinarian hospital and clinic near my home in Portland is Pakistani. A dear friend is effectively in hospice care and all the care givers are immigrants from the Philippines. Technology entrepreneurs being interviewed in the media regarding their new American enterprise are Pakistani. A fellow touted as the next CEO of Microsoft, Satya Nadella, was born and raised in India, educated both in India ( Electronic Engineering degree) and here ( University of Wisconsin – Milwaukie for Master of Computer Science, and the University of Chicago for his MBA).

The president of PepsiCo is Indian as is the chief executive officers of several Fortune 500 companies, not to mention others that hail from Brazil and other Latin American countries. The home countries of these high flying immigrants to the United States, just to illustrate the point, have the following per capita income in current dollars: Pakistan – $1,257; India – $1,489; Turkey – $10,666; Mexico – $9,749. The per capita income of the United States is $51,749; the United Kingdom is $39,093 and, by the way, Afghanistan is $687.

The Alfred P. Sloan Foundation, a renowned source of funding for original research, announced the winners in its most recent round of awards. The announcement is a full-page advertisement in the February 18, 2014 New York Times. I took a second look at the list and, judging from just the surnames on the list, it appeared to me that most winners were either foreign born or recent arrivals. I looked more close at the award list for chemistry and Googled the names that appeared to be “foreign”. There were twenty-three in the chemistry category. I found that ten were foreign born and/or partially educated abroad. Nine of those are currently on the faculty of an American University and one with Scripps Research Institute. There may have been more, but I didn’t Google everyone on the list.

By no means does the background described above cover the objective bases necessary to draw a complete picture. These are but examples.

I keep wondering how religious zealots get control of entire populations in some places and why that doesn’t happen in others. Notwithstanding the fundamental nature of religion, people tend to be rational – not smart, but more likely to make decisions that make sense for themselves and their world. It is not rational to be or to use suicide bombers for any purpose, let alone political. It is not rational to use chemical weapons on people in your own country. There are many such irrational acts carried out in various countries in recent years ( including our own, which is another blog) that seem to be happening without voices of rational moderation.

I also wonder about the wretched poverty one sees in, as an example, Bangkok – poverty which I think has existed for generations and apparently will go on for additional generations. Starvation, filth, disease and back-breaking work would seem easy enough to eliminate, providing there is the leadership to show the way. Where is that leadership? Certainly, the competent revolutionary can arise and most likely does arise from any people. Maybe it is tougher in many places because of a passive culture or a particularly nasty despot, but it seems – at least intuitively – that such leadership exists. My suspicion is that the leadership has left and gone to America – with the encouragement and support of the Americans.

The Egyptian “revolution” also suggests that something has been removed from that society – descendants of one of humanities oldest civilizations. Egyptians suffered a bloody struggle in pursuit of a democratic government. An election was held and the Muslim Brotherhood was elected and apparently many did not like that result. So, they staged another mass revolt and persuaded the military – the entity which previously secured the peoples’ oppression – to dump the Muslim Brotherhood. For what? The revolutionaries can’t decide among themselves. An army general is about to declare himself the president. Where are the people who would understand that democracy does not mean you always get your way? Where are those who have studied western democracies and learned that peace and stability is worth the price of sacrificing a government that looks and thinks exactly like you?

As I am writing this, I painfully realize how much many in our own Republic don’t understand democracy and, even if they do, don’t really like it ( Hedgefunder and currently leading megalomaniac Tom Perkins being a leading example). But these ‘know-nothings’ and champions of the rich do not prevail and won’t prevail until the American society is a forgotten myth. That, however, is not the present question before us.

Struggle as we do with our image and its contrast to our realities, as a nation we are repeatedly faced with a cockeyed foreign policy that has resulted in a very long line of foreign aid justifications. Much of that over the years has been motivated by the permutations of the American oil companies and their western allies and the need to secure the vast resources of the Arabian Peninsula, Valenzuela, the North Sea or Nigeria. The political result of oil companies mucking about these places to extract and keep the wealth has been destabilization ( Saudi Arabia being a stark exception). That destabilizing justifies more foreign aid and remains a constant because indigenous leaders and intellects are driving BMWs and building monster houses in Sam Mateo and Marin Counties, California. I don’t know that is true; I suspect it is.

Would American difficulties with Pakistan’s seemingly endless political chaos be more likely resolved if its intellectual elite had not emigrated to Stanford, MIT, UC or Harvard? It may be easier to answer that question if asked about Nigeria or Belarus or Indonesia.

Are indigenous American young people less capable, intellectually, than these foreign young people? Are Indian students simply better at the professional and scholarly undertakings than indigenous Americans? Is the immigrant intellectual more willing to work for less? For any position taken by an immigrant scholar, is an indigenous American being shut out of a career?

Does the influx of foreign scholars, intellectuals and business leaders into academic and fortune-five hundred institutions effectively erode the American ethos that created the institutions? If it does, is that bad?

When thinking about immigration, as I have been for many years, the impact of American immigration policy on the immigration of the scientist, graduate student, master of business often goes unstudied. It is more often about the vast bulk of worker immigration and most often about Latin Americans and cheap labor and different languages. What we decide should be the policy of this country about immigration will ultimately determine the path of our future. Should we be fashioning a method of keeping the intellectual as a citizen that is different and less demanding than keeping the truck driver, auto mechanic or the melon picker?? If we do, what does that do to such American notions as equal justice under law?

Subject to better ideas that I know exist out there, my preliminary thinking is that the immigration of a leader, an intellect or a scholar should be subject to considerations of the needs of the country in which he is born or raised.


Posted in Best and Brightest, Business Leadership, Egypt, Immigration, Intellectual, Uncategorized | Tagged , , , , | Comments closed

Cake Eating In the Twenty First Century

This morning’s outrage is reported on the front page of the New York Times: STATES CUTTING WEEKS OF AID TO THE JOBLESS. The understandable sensibility of the paper is demonstrated by the fact the headline is above the fold. The featured misery is that of a woman with a fourteen year-old son who is losing unemployment benefits after twenty weeks of being out of work. This privation is added to the reduction of food stamp benefits. It was not her fault that she lost her job, nor that she hasn’t found another – there aren’t any. Whatever she did to land in this predicament was to live in the state of North Carolina.

That state, last July, cut unemployment eligibility from seventy three weeks to twenty and reduced the amount of maximum benefits. The federal program extending long term benefits expired at the end of 2013 and Democratic efforts to revive it failed. Notwithstanding the support of local economies that unemployment insurance provides, a whole lot of people in Congress – who may not be working but who are nonetheless paid- think the people who lost their jobs are simply not looking hard enough to find another.

A similar theory is behind the refusal of a majority of House Republicans to agree to an extension of food stamps under the Farm Act. The problem is that people who don’t have enough to eat because they don’t have the income to pay for food are simply not trying hard enough to find a job. Many public minded republicans in the House are concerned that a continuation of unemployment benefits and food stamps will lead people to an addiction to poverty and a dependency on government largess. None of these social geniuses, however, have bothered to understand the hypocrisy underlying this reasoning – as an example where are the job creating projects, the education programs??

For the worker – and most of us qualify as “a worker” -is trapped in a perfect storm of economic and soul devastation. The jobs disappeared, for one reason or another, but none attributable to him. Government cutbacks in education funding have limited his chances of retraining. Congress failed to pass the Presidents Jobs bill, so the prospects of finding a job any time soon are dim. Congress refused to extend unemployment benefits and fund food stamps. The only possible relief is that Americans vote in great numbers this November and dump every Republican running for any office.

Why would we do anything else short of armed insurrection?


Posted in Food stamps, Jobs Bill, Unemployment Benefits | Comments closed

Egypt and Syria

It is axiomatic that nothing of value is obtained easily. That rule applies to democracy. As the oldest democracy in the World, we Americans should know the rule and all of its permutations. It seems, however, that we forget too often – blinded, perhaps, by our self importance and the fact that someone appointed us the world’s cop. Without determining who that “someone” is or verifying his authority to make such appointments, we are off again threatening to interfere with the painful process by which a people obtain democracy.

Through a more or less democratic election, Egyptians chose Mohamed Morsi’s party, the Muslim Brotherhood, to lead them. A year following that choice, it appears that a lot of Egyptians decided that Morsi was terrible and they demonstrated, then rioted and then sought and obtained the intervention of the army to oust Morsi and his government. There was no process to electorally recall Morsi and the Muslim Brotherhood. There was no call for another election. There was simply the forcible removal of the guy by the army, against which the people had revolted before. When the army deposed Morsi, it also forcibly quelled demonstrations and riots by Morsi supporters and then by army opponents and Egyptian society is collapsing into chaos. The United States is being vilified for not intervening and for being solicited to intervene and it is claimed vehemently by some that the United States is in cahoots with the Muslim Brotherhood to destroy Egypt.

Syria presents a different history and a different challenge, but I think the same dilemma. There, the Government has claimed it is democratic. Indeed, there is a constitution and elections have been held. Participation in those elections is restricted to those who don’t oppose the ruling party. Clearly, it is not a democratic country.

Historically, Syria is more of an area than a state or country. It is culturally diverse – a fact the Alawite ruling clique exploits. Although Syria has been in a state of civil war for the better part of fifty years, mass demonstrations last year brought the wrath of the army of Bashar al-Assad into the streets with its formidable weaponry. The consequences have been gory, huge and ongoing – leading to the latest outrage of the use of toxic chemicals – apparently by the Assad government troops. This last fact has raised the specter of American military response.

Long before evidence of the use of chemical weapons, President Obama was implored to use American force to support the rebel forces arraigned against the Assad government. He demurred, pointing out that it as not possible for the United States to identify a sufficiently organized rebel force to whom we could trust American made weapons. Indeed, it appeared then and appears now that this country’s most virulent enemy, al qaeda, holds substantial sway among the Syrian rebels.

Many, many Americans are banging at the White House doors insisting that the Country’s mighty weaponry be released to damage Assad and his nasty friends – to hold them accountable, the rubric goes. The horror of chemical weapons use is apparently more so than the months of using of conventional weaponry that has killed and maimed hundreds of thousands of Syrians in the cause of Assad holding on to this position.

It would be, in my opinion, a mistake for the President to relent on this issue. It might well be worse than just a mistake.

The fundamental lesson that a people – no matter the cultural or racial diversity – must learn on the road to democracy is that they must unite to fight autocracy. Rather than invite a devastating attack from the United States, the use of chemical weapons by Assad should have caused this uniting, coming together, common front. If that is not going to happen among the Syrian rebels, then it isn’t going to happen following an American attack on Assad and a number of other bad things will likely happen.

It is apparently technically as well as intuitively true that a missile hit on the chemical weapons supply would endanger everyone for many miles around – including those in other countries. Destroying lesser military targets would leave the chemical weapons available to Assad, even if an attack on other targets limited his military ability. With all due respect to the sophistication of cruise missiles, launching them in such a way as to destroy Assad’s defense of his regime seems very unlikely. That means, I think, that after a major missile attack, Assad will remain standing and a whole lot of collateral damage will probably occur.

A complete military solution to the inhumanity of Assad could be obtained by a massive ground assault by an “international force”. Such an invasion would face the immediate problem of sorting out who was and who was not an Alawite acolyte, an al qeada zealot or an ordinary, trustworthy rebel. The sorting, of course, would mean that we would be back in the impossible business of nation building again. That, of course, is the job of the people in the nation and not ours.

There simply has to be another way to register ours and the rest of the world’s disgust with Assad. However much the use of chemical weapons is agreed to be a crime against humanity, the Arab countries are not endorsing a military response. By implication, we are not authorized as matter of common sense to bring an American gun to this conflict. It seems starkly clear that Assad is a war criminal and that he ought to be brought to justice for that status. The people at The Hague ought to be putting the case together and seeking an indictment and then an arrest warrant issued. Then Assad is a fugitive and there is an undisputed right to arrest him wherever he is found. Such a well publicized procedure would certainly dissuade underlings from cooperation in the scheme to kill Syrian citizens.

Finally, at this writing it appears that anything we do militarily would be on our own. The British parliament has refused to authorize military action – at least until the United Nations Inspectors report and maybe not even then. The Arab League just doesn’t think military intervention would accomplish anything and the United Nations Security Council would be stopped from authorizing an assault by expected vetoes from Russia or China. It is unlikely that Congress would authorize an armed attack of any sort unless it would mean some sort of additional damage to the Obama administration. The President would be utterly and completely alone in such an effort. What needs doing in this country by this President would then not get done while the Republicans and the Media eat up time and energy in the ensuing feeding frenzy.


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The Importance of Relevance


As I’ve repeatedly observed, there is but one way out of the oppression of Republican stalemating the government – vote them out of office. If, when the sun rises the day after the election of November 2014, there are no Republicans elected, imagine what that would mean for our lives –individually and collectively.

For one thing, it would be a step toward saving our democracy. It would mean, in all probability, an end to the vicious campaign to restrict voting by racial minorities and low income people. It might mean a return to the notion of one person/one vote and the elimination of the one dollar/one vote that has become the American norm. If there were similar returns in the states for state governments, things could get even better: (1)we could repair the damage caused by gerrymandering legislative and Congressional districts, (2) remove the legal authority recently conferred on state governments to ignore local elections and impose top-down local government that is appointed, not selected by anti-democratic forces, and (3) restore the right and power of collective bargaining to the working class.

If, on the other hand, we fail to do the arduous work to turn out the vote and overcome the voting restrictions Republicans are imposing, then what we face is nothing short of disaster. People who ran the financial system into the ground would be free to do it again, with impunity. Forces that led us into the costly and pointless war in Iraq and extended the war in Afghanistan would be in charge of our Departments of State and Defense. Those that will destroy our postal service will be running our most critical means of communication. Monopolies will abide, along with the abject incompetence that led to the bankruptcy of the auto industry, the disappearance of a steel industry and escape of the textile. Women will be deprived of the right to make their own health choices.

So, what is relevant is what we have to do to get people to vote. What is not relevant is Anthony Weiner’s pitiful fascination with his penis; Edward Snowden’s ill-fated dream of Ellsberg-like glory as he wallows in amnesty – and windy speculation about who will be a candidate for election to president in 2016 is definitely not relevant. Wandering off through hours of reporting (and the commercials that go with it) about these and other shallow diversions (e.g. the birth of Bill and Kate’s baby boy in London)saps our political energy, confuses and frustrates the people who will require inspiration and gives hope to Republicans who should have no hope. Treason and its rotten surrogates ought not be rewarded and, if we dither, they will be.

The relevance that I am talking about is not something we can put off, think about it later or leave to when the threat is personal and imminent. That is because the threat is imminent and if you aren’t feeling it yet, you aren’t paying attention. Those that have been in charge of alerting us to these threats have failed utterly. The vast television networks, wire services and newspapers are run and have been run by people who must keep their jobs the way they perceive their jobs and therefore must dissuade the younger, smarter more alert from trying to take those jobs. The phenomena of “I be gone/you be gone” is a giant sinkhole to which the Republican Party offers a guide service.




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