In a perfect world, individuals and corporations would police themselves. He, she or it could recognize the problem, diagnose its cause, and implement the solution without the need of outside investigators or the threat of a lawsuit. But we do not live in a perfect world. Some people and companies will not recognize that a problem exists. And even when they recognize a problem, they fail to take responsibility for the problem. To safeguard against our imperfections, we have the civil (and criminal) justice systems to expose and remedy these errors. The civil justice system, particularly product liability law, is a means for ensuring that unsafe products get removed from the marketplace and responsible parties account for their errors.
To take but one example from recent events, look at the General Motors (GM) ignition switch controversy. In the early 2000s, GM engineers chose to use an ignition switch in certain cars that fell-below GM’s minimal specifications and that failed to keep the car powered. This resulted in moving stalls and the loss of power to the car’s air bags. At the exact moment when the driver and passenger(s) needed the air bag(s) to protect them from the inevitable crash, the defective ignition switch disabled the car’s safety features and many people died and/or were seriously injured.
GM’s failures are laid bare in an extensive 2014 report titled “Report to Board of Directors of General Motors Company Regarding Ignition Switch Recalls” by Anton Valukas, an attorney hired by GM. Despite knowing that this ignition switch did not meet GM’s threshold specifications, this switch was used for at least four years in Chevrolet Cobalts and other GM cars in the early-to-mid 2000s. Around 2006, a GM engineer changed the ignition switch to be within GM’s specifications, but allegedly failed to inform anyone of this change and never changed the part number, contributing greatly to the confusion in pinpointing the ignition switch as the source of the power failure and failure of the air bags to deploy in accidents.
It took the work of outside experts, particularly public safety professionals and experts hired by plaintiffs in civil suits against GM, to establish the link among the defective ignition switch, the car crashes, and the failure of the air bags to deploy. In 2006, following the first deaths associated with the defective ignition switch, legal action against GM began. In 2007, a trooper from the Wisconsin Safety Patrol concluded that the ignition switch turned the power off (and the air bags) prior to the crash. Around the same time, a research team from Indiana University reached the same conclusion. It is unknown if GM learned of these conclusions contemporaneously or much later.
As detailed in the Valukas Report, GM received conclusive evidence in 2013 that it changed its ignition switches in the mid-2000s (but failed to document the change), when an expert hired by a plaintiff in a civil suit against GM X-rayed the ignition switches from different model years. Noticing a difference, the expert took the switches apart and discovered that the ignition switches contained different parts, but had the same model number. No one at GM had considered (or if they did, no one took action) to examine the actual parts involved in their motor vehicles and discover that the actual ignition switches changed from one year to the next. Many people inside GM knew that their vehicle was losing power and its air bags were failing to deploy, and that its customers were dying as a result, but GM could not find the root cause of why its product failed. It took an expert hired by a plaintiff in a civil suit against GM to conclusively identify that GM had replaced its substandard ignition switches with new switches and that this undocumented switch explains the disparity in reports of death and serious injuries from model vehicles made before and after 2006.
Prior to a plaintiff in a civil suit drilling down to the root cause of the ignition switch’s failure, GM had not recalled any of its affected vehicles. Even after the root cause was found, GM still waited months before initiating the first recall. Subsequent recalls expanded the scope of the affected vehicles to several million in total. I urge anyone interested in learning more about the GM ignition switch recall issue to read the Valukas Report.