Woman 'without a face' vows to stay in GM's face

A Madras woman maimed in a fiery crash wants to force a recall of trucks critics say contain a "lethal defect"

By J. Todd Foster of The Oregonian

Elizabeth Kirkwood is a reluctant millionare. She would rather have her granddaughter, who died three years ago when an old Chevy pickup rammer her car on a Central Oregon highway.

Gasoline from one of the truck's "sidesaddle" fuel tanks spewed onto her Buick LeSabre and ignited. The inferno killed Kirkwood's only grandchild.

If not for two farmhands who rushed past onlookers and reached in through the flames, Kirkwood and her granddaughter's half-brother also would have died.

Disfigured and maimed for life, the Madras woman, 68, has settled her lawsuit against General Motors Corp., the world's largest industrial enterprise. But the devout and admittedly stubborn Catholic has vowed to continue speaking out against GM full-size pickups manufactured from 1973 to 1987.

An estimated 73,000 of the C/K trucks, which critics say are prone to explode on side impact, remain on Oregon's roads.

In recent months, GM confidentially settled lawsuits with Kirkwood and four other families scarred by Oregon accidents involving the trucks. The last settlement was negotiated June 24 in Portland.

The debate about what many consumer groups declare the worst safety defect in automotive history has played out in David vs. Goliath fashion from the Salem statehouse to courthouses in Bend and Portland.

Although the terms of all GM settlements are by law confidential, the Center for Auto Safety in Washington, D.C., estimates that the automaker has spent half a billion dollars closing more than 200 cases nationwide.

Although the settlements undisputedly are a huge financial drain, stock analysts have said the cost of a recall could have topped $1 billion.

Clarence Ditlow, executive director of the consumer group, estimates that the Kirkwood case alone could have settled for $10 million or more because she was not at fault but suffered lifelong emotional and physical trauma.

"If not for that particular truck, I would have had broken bones or cuts and bruises but not been burned like this," Kirkwood said. "My goal in life is to get these critters off the road."

Nearly 4.2 million of the C/K trucks, bearing the Chevy and GMC nameplates remain on America's highways, according to statistical data from R.L. Polk Co. The national company buys computer databases from every motor vehicle department.

GM, which manufactured 9.1 million C/K pickups during the 15-year period, insists the durable trucks are no more prone to explode than Dodges or Fords with fuel tanks mounted inside the frames and are safer tahn 50 models of cars.

"This is a well-designed truck," said Arthur Greenfield, one of GM's lead trial lawyers. "It is not defective. All vehicles that have been involved in accidents will occasionally, unfortunately, catch on fire. That is not unique to this vehicle."

Although GM refused the government's request that it voluntarily recall the vehicles and still assures owners they're safe, it redesigned the fuel-tank system beginning with model year 1988 because of lawsuits, court documents show.

Joe McCray, a San Francisco attorney, Portland native and GM nemesis since 1982, and Portland attorney Michael Hoffman have negotiated settlements for five families involved in the four Oregon accidents.

McCray, a pugnacious former longshoreman and union tough-guy who graduated from Franklin High School in 1959, has sued GM over its C/K trucks nearly 25 times. He has two of the four jury verdicts against the automaker, raking in $6 million in damages for him and his clients. Plaintiff's attorneys usually get one third.

McCray and other lawyers cannot disclose the amount of the out of court settlements.

According to R.L. Polk Co., the remaining 4.2 million C/K trucks on the nations roads include nearly 73,000 in Oregon, or one for every 44 Oregonians.

The trucks remain a threat to public safety, crics allege, because of their long shelf-life. Critics contend they are so dependable that owners hang onto them.

"One of the ironies is that but for the gas tank, they're pretty good vehicles," consumer advocate Ditlow said. "Our estimate is they're going to be on the road crashing and burning well into the 21st century."

Recall effort fails

In late 1992, Ditlow and Nader's Public Citizen group partitioned the federal government for a recall. The National Highway Traffic Safety Administration spent two years analyzing more than 100,000 pages of documents, crash-testing the trucks and completing statistical analyses.

The investigation found that 150 people had died in C/K truck fires in crashes that otherwise were survivable, a number critics say is grossly low.

Transportation Secretary Federico Pena issued an initial decision in October 1994 and found the trucks defective.

Furthermore, he said, GM knew of the safety risks before it moved the fuel tanks outside the frame rails and did nothing despite mounting evidence of deadly explosions.

"Instead, GM management in place at that time appears to have made a decision favoring sales over safety," Pena said.

GM sued Pena over his recommendation, and six weeks later the government dropped its case and its threat of a recall. In exchange, the automaker agreed to spend $51 million on safety programs unrelated to its C/K pickups.

The government defended the settlement because it allowed for the purchase of 200,000 child-safety seats for needy families, as well as drunk driving and seat-belt research and education programs.

Healing Process begins

About this time, Kirkwood, still in the hospital five months after her accident, had proved state troopers, paramedics and doctors wrong: She was going to survive.

She had been burned on 30 percent of her body and lost her left eye and the bottom of her right leg to complications.

Kirkwood's daughter, Annie Hausinger, overheard her mother's first doctor predicting death.

"He didn't know my mother," Hausinger, 44, said. "She has the constitution of an ox. She has always been strong and stubborn, and prayed her way through everything. She's like a pillar of strength."

Kirkwood turned her attention to suing GM and says "the hand of God" led her to the Portland law firm where Baron worked.

But there was a major problem: Oregon was one of 16 states that had "statutes of ultimate repose" -- a sort of statute of limitations that prevented her and others from suing.

With Republicans in control of both the Oregon House and Senate for the first time in 40 years, Baron says even his law firm didn't think he could get the statute overturned in the face of GM lobbyists.

The naysayers were wrong.

Baron enlisted Portland lobbyist Brad Higbee, who began work without pay. Eventually, many of the 4,000 residents of Madras would pony up $20,000 on Anne Kirkwood Day, Feb. 19, 1995, organized by Hausinger and her Justice for Anne Kirkwood Committee.

The proceeds from bingo, karaoke, a silent auction and a Mexican dinner went to pay Higbee.

Higbee and Baron worked a full-court press on Salem lawmakers, who were deluged by GM lobbyists. Higbee remembers one legislator joking that he knew things were getting serious by the number of Armani suits loitering in his office.

Republicans Sen. Neil Bryant of Bend and then-House Speaker Bev Clarno eventually agreed to back Kirkwood, one of their constituents, even though they suported tort reform.

But Baron says they soon succumbed to what he calls Kirkwood's "magic" and the outrage of the case. The legislators became heroes and engineered easy passage of the Kirkwood bill. It made national headlines.

"You can't get justice without access to the courthouse," Baron said.

He teamed up with Paul Whelan, a Seattle product-liability lawyer who had specialized in defective automobile cases for 20 years. Whelan first sued GM over the C/K pickup in late 1992. In all, he has settled three cases and has two pending.

It was Whelan and his associates who located some of the GM documents used against the company nationally.

Kirkwood's lawyers spent much of 1996 battling 18 GM attorneys and their estimated 150 motions. GM introduced thousands of exhibits; some showed that so many of the pickups were driving so many miles that their risks were infinitesimal.

For example, a driver could make the equivalent of 477,385 trips around the Earth and have one fatal side-impact collision in a C/K pickup, GM asserted.

Stated another way and illustrated with a drawing of a cave man rolling a wheel, GM calculated there would be one C/K fire fatality every 45,000 years of round-the-clock driving.

Whelan calls the statistical defense nonsense.

Using GM's and the government's data, he says the C/K pickups have been proved to be three times more likely to explode in side impacts than Fords, and six times more than Dodges.

Kirkwood, who Baron says is "beloved and adored" by everyone who meets her, proved to be a formidable opponent under deposition questioning by GM attorneys.

Her disfigurement was no match for her deep faith and her cutting wit.

When Kirkwood's bandages came off around Christmas 1994, and she peered into a mirror for the first time, she quipped: "Boy, I'm a funny-looking sight, aren't I?" When Kirkwood learned she would need a prosthetic nose, she said dryly: "If it's good enough for Michael Jackson, it's good enough for me."

Baron remembers a Deschutes County circuit judge who was trying to mediate a settlement telling lawyers on both sides that "they could ride to heaven just on Anne Kirkwood's skirttails."

About 10 days before her trial was to begin earlier this year, the GM and Kirkwood teams met all day at a Seattle arbitration firm and settled the case.

Gail Hulden, a researcher for The Oregonian, provided background for this report.