RICO lawsuit seeks punitive damages for GM's alleged discovery abuse.

Five years after a jury found General Motors Corp. liable for injuries a New Jersey man suffered in a car crash, his estate has filed a claim that accuses the automaker of withholding evidence and seeks damages under the Racketeer Influenced and Corrupt Organizations Act (RICO). (Newman v. General Motors Corp., No. CIV 02-0135 (D.N.J. removed from N.J. Super. Ct. Law Div. Jan. 11, 2002).)

GM "fraudulently concealed and affirmatively misrepresented" evidence that would have supported plaintiff Michael Green's claim that the automaker knew the roof of the new 1986 Camaro IROC Z28 he was driving was unsafe, the suit alleges. It says that GM's nine-year scheme to "defraud" Green and "disrupt the litigation" prevented him from seeking and recovering punitive damages; forced him to absorb the costs of a second trial that would not have been necessary if GM had turned over the "smoking gun" evidence; and delayed necessary medical care and a judgment and award for three years. Green died of complications from his injuries in March 2001.

Bringing suit for discovery abuse under RICO is novel, said Green's attorney, Maurice Donovan of West Orange, New Jersey. Neither he nor GM is aware of any such case. "My contention is that GM is an enterprise that conspired and used criminal practices to engage in a pattern of racketeering," he said.

A June 1986 collision with a school bus left Green paralyzed. He filed a complaint two years later, claiming that the Camaro's roof--a T-shaped steel frame with two removable glass panels--was too weak to withstand the impact. The roof buckled and collapsed on Green's head, compressing his spine and fracturing vertebrae in his neck.

Discovery revealed no documents indicating that the automaker had considered alternative roof designs. And although Donovan's research had turned up lawsuits that lodged similar design-defect claims against GM, they were subject to confidentiality agreements.

A mistrial was declared in 1993 when a jury in Essex County, New Jersey, deadlocked. In 1996, a second jury awarded Green compensatory damages, blaming the roof for all his injuries.

Media coverage of the verdict--and of Donovan's convincing the jury, without documentary proof, that GM should have designed a safer roof--caught the attention of attorney Patrick Ardis of Memphis, Tennessee. His client, Richard Johnson, suffered brain damage after the glass in a 1986 Camaro IROC's T-roof dislodged during a collision and struck his head.

While investigating Johnson's case, Ardis had asked General Motors for a list of all resolved and pending cases involving Camaro T-roofs. The automaker had excluded Green's case from the list.

A Tennessee court granted Ardis's request to allow Green to see documents GM had provided in Johnson's case, which had been protected from release by a confidentiality order.

"Mr. Ardis had discovered documents that GM should have given to me but didn't, despite my repeated discovery requests," Donovan said. The automaker had also given Donovan documents it had not given Ardis.

The new information revealed that GM had considered an alternative roof design that would have provided better stability. The automaker used the T-roof instead because of its more "striking, macho appearance," appeal to prospective buyers, and potential profitability for car dealers.

A New Jersey appeals court allowed Donovan to supplement Green's case record with the documents and affirmed the liability verdict in May 1999. Donovan filed the RICO suit in November 2001. It was removed to federal district court in January.

The turn of events was serendipitous, Donovan said: If Ardis had not contacted him, "GM's illegal tactics might still be hidden behind the confidentiality agreements and secret settlements" that have protected the automaker for years.

GM has filed a motion to dismiss. The court is expected to rule this month.