Families, lawmakers and the general public may never learn the names of people who died in crashes linked to faulty ignitions in GM autos, whether it be 13 names or hundreds, legal experts said Wednesday.
Even as Mary Barra, CEO of the nation’s No. 1 automaker, was being grilled by Congress about who knew what and when about the defect that has led to millions of recalls, the company still has not provided the names of victims, except to lawyers, whose hands are tied by confidentiality agreements.
That leaves families in the dark about whether their son or daughter, father, mother, wife or husband died because they fell asleep at the wheel, were intoxicated or because of a faulty 57-cent part that caused their vehicle to shut down and stopped the airbags from being deployed.
"By not disclosing, families are left in the dark," said Lance Cooper, an attorney representing several families suing GM over the recalled cars. "They just need to come clean."
GM spokesman James Cain said the company is not providing names, "out of respect for the families and their privacy."
That's not all, though. Paul White, a Boston-based civil litigation attorney said that GM has additional incentives for keeping the names under wraps.
"From GM's standpoint, that's simply going to lead to a significant amount of new reporting concerning individual cases and claims, and that's one of the things they want to have go away."
Safety experts say that automakers don't typically publish the names of the fatalities linked to a defective vehicle. Cooper, one of the few people outside the car company that has seen the list of incidents GM has identified as linked to the faulty ignition switch, said GM's silence on the names may stem from concerns about limiting its exposure in product liability cases. A confidentiality agreement prevents him from naming names.
On April 3rd, GM is required to respond to a special order by the National Highway Traffic Safety Administration (NHTSA) requesting more information, which includes every report it has of fatalities linked to the switch, along with the names of the vehicle owners. That still doesn't mean the public, Congress, or the families will get to know who the 13 are, said Sean Kane, president of Safety Research and Strategies, a research firm based in Rehoboth, Mass., specializing in vehicle and product safety.
"When manufacturers request confidentiality," usually on the basis of confidential business information or attorney-work product privilege, "NHTSA grants it," said Kane.
Even if NHTSA does make the documents public, the Privacy Act prohibits federal agencies from disclosing personally identifying information. While the report could still include case or incident numbers that could be used to deduce the names of the victims, in the past Kane's firm has sued to get NHTSA to unredact information that was already in the public domain, such as information found in court proceedings or newspaper articles.
NHTSA referred questions regarding the list of names to GM.
Even if the names come to light and prompt more lawsuits, a clause in "Old GM's" 2009 bankruptcy agreement absolves it from paying for any injuries arising before its bankruptcy.
Phil Trautwein lost his sister Sarah in 2009 in an incident involving a 2005 Chevrolet Cobalt, one of the vehicles named in the recall. For years, the family has chalked it up to Sarah falling asleep at the wheel. But after the latest news, they’re not so sure.
"We thought we had an answer," Phil told TODAY in an interview on Wednesday. "We were coping with the fact she died peacefully and while she was sleeping at the wheel. And now, for us, as a family, we have to think about what was her last thought. Was she fighting for her life? Was she trying to get out of the car? And for us, that's something we'll never know. And that's what GM took away from us."
Despite promises of transparency, Barra's testimony this week has frustrated some families of accident victims.
"She has not been forthcoming," Mary Teresa Ruddy, whose daughter Kelly died in 2010 in an incident involving a 2005 Chevrolet Cobalt, told CNBC. "At the hearings yesterday with the house, one of the Congressmen asked her if she would be providing a full report, and this question was asked to her four times, and four times she answered it, 'You will get what is appropriate.'"