Litigation Pushes Ski Boat Manufacturers to Safer Designs

On July 17, 2014, seven-year-old Ryan Paul Batchelder lost his life in a boating mishap that his family alleges, was completely preventable.

In Memory of Clarence Ditlow

Clarence M. Ditlow III, Executive Director of the Center for Auto Safety, died last night of cancer. He was 72. His passing is a big loss for the safety advocacy community.

The Center released a statement that said, in part:

GM Stiffs Takata Recall, Petitions for Delay

Safety Research & Strategies response to this request: Deny! It’s rare for an automaker to request such a change – it’s even rarer for the agency to ask for comments. But, our focus on this issue tells us that the petition is a stunning display of chutzpah, considering that the automaker is already flouting the Consent Order it signed. GM has been selling unremedied recalled vehicles while telling its customers it isn’t replacing the airbags because there’s no problem. Everything we’ve learned about the history of this defect assures us – there ain’t no such guarantees.

Litigating the Goodyear Way

Earlier this month, the Goodyear legal team was prepared to argue before a judge in the Philadelphia County Court of Common Pleas – in essence – that a 2007 Customer Satisfaction campaign to replace 400,000 P215/70R14 tries sold in the U.S. under 23 different names was confidential business information.

This assertion was never put to the test in court. But it’s another one of Goodyear’s litigation tactics designed to turn the discovery process into the two-dimensional version of a waterboarding. Delay, delay, delay. Deny, deny, deny. Goodyear is all about full-throated declarations about the non-existence of evidence and its legal team does not flinch in making them to a judge. In Walden v. Goodyear, Safety Research & Strategies obtained non-existent documents via garden-variety research methods and if you want to read them, click here.

The claim arose in Walden v. Goodyear, a case that involved the catastrophic failure of a Douglas Xtra Trac P215 70/R14. On July 26, 2010, Cynthia Eure was driving her van westbound on the Pennsylvania Turnpike, when her right rear tire suffered a tread separation. The vehicle departed the highway and rolled over.  Five-year-old Tashi Walden was ejected and died of his injuries; two other passengers in the van were injured, but survived. Eure’s failed tire was among those that are part of the customer satisfaction campaign.

Office Chair from Hell Finally Recalled

After years of subjecting an unsuspecting public to an office chair with “welds” that break, flipping the occupant backwards, Office Depot, the exclusive seller of the sudden ejection machine, is recalling 1.4 million units sold between 2003 and 2012. According to a release issued by the U.S. Consumer Product Safety Commission, the office supply company had received 153 reports of the seat plate weld cracking or breaking, including 25 contusions, abrasions, injuries to the head, neck and a fractured back and hip.

That hip fracture was sustained by Nancy Losey of San Antonio, Texas, who in March 2010, was sitting in a Gibson chair when it suddenly collapsed. The chair was manufactured by the Wonderful Year Furniture Company, imported by Swinton Avenue Trading Company, based in Boca Raton, Fla, and sold by Office Depot.  The seat plate underneath her chair had separated from the chair base, because of a weld failure at that juncture. Ms. Losey fell to the floor and broke her hip, requiring a hip replacement surgery.

 In October 2012, San Antonio attorney Paula Wyatt, who represented Losey in a product liability case against Swinton Avenue Trading, set this resolution into slow motion, by writing to the U.S. Consumer Product Safety Commission alerting them to Losey’s injuries, and the amazing similarities between the Gibson and the Biella Office Chair, which bore the same product registration number and same bad weld in same critical place, but had already been recalled in April 2012. At the time, the Biella only had 11 complaints, compared to 18 between 2009 and 2010, for the Gibson. But, there were fewer Biella’s out there – 307,000 units. Under that recall, the remedy was a $55 store card – the price of the chair.

 The CPSC opened an investigation, but there was no immediate action. And today there was no immediate response to our question: Why in the heck did this take so long? CPSC spokesman Scott Wolfson did say:

"CPSC produced a humorous video a few years ago to promote the use of SaferProducts.gov and it involved a man falling off of an office chair.  The video was based on actual incidents and today's recall of a related hazard with office chairs is another example of the importance of reporting safety incidents via SaferProducts.gov."

The Safety Record Blog gave Wyatt an assist by writing about this evil piece of furniture (see Office Depot Declines to Launch Recall for a Chair that Launches Occupants Backwards and CPSC Investigates the Chair Office Depot Tried to Forget), and highlighting the frustrations of one Jesse Clackum, who blogged about her fruitless attempts to make the Swinton Avenue Trading Company take responsibility for the collapsing chair. In late 2006, Clackum, based in Florida, was one of the Gibson Leather Office Chair’s hapless victims. Her version of a Swinton Avenue Trading Company office chair, retailing at $119.00, was only 14-months old when it collapsed after the weld at the base of the chair failed. Clackum immediately contacted Office Depot looking for restitution, but the office supply retail giant blew her off, and told her that she should have bought the extended warranty.  Clackum tracked down the manufacturer – the Swinton Avenue Trading Company, an entity which turned out to be unreachable – no phone number, just a PO address.

SRS Sues Florida DOT for Guardrail Docs

Safety Research & Strategies, an automobile and product safety research and consulting firm based in Rehoboth, Mass. filed an open records lawsuit in Florida state court, alleging that the state’s Department of Transportation violated the Florida Public Records Act when it withheld documents pertaining to its relationship with guardrail manufacturer Trinity Industries pending a review by the company.

The lawsuit, filed today by Florida State Representative Matthew L. Gaetz  (R-Dist. 4) asks the Circuit Court of the Second Judicial Circuit for Leon County to compel the FDOT to release the materials SRS requested on February 10,  associated with inquiries, investigations, and communications between FDOT and Trinity regarding the design, manufacture, failure, purchase and testing of Trinity ET-Plus guardrail systems. SRS also asked for documents related to any motor vehicle accidents involving ET-Plus and consumer complaints about the safety of the system.

The Dallas, Texas-based manufacturer, a globally dominant producer and seller of guardrail systems has been under fire since 2012, when a competitor, SPIG Industries, of Bristol, Va. charged that sometime between 2002 and 2005, Trinity modified the design of its guardrail end terminals, causing it to perform poorly in crashes and injure and kill occupants in striking vehicles. These allegations have been the subject of numerous news stories abroad and in the U.S., including the Florida media.

NHTSA Opens Smart Key Compliance Probe

With a 2011 rulemaking on standards governing electronic key systems still pending, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicles that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present – all conditions that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. And, incidentally, all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

SRS obtained these documents after submitting a Freedom of Information Request for agency documents related to keyless ignition investigations.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia regarding 2012 and 2013 model-year vehicles, based on tests of how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

The agency said that the probe was initiated by a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. But actually, the compliance investigation had its origins in a routine FMVSS 114 compliance test of a 2013 Ford Focus. After discovering that the vehicle did not meet the warning aspect of the regulation, NHTSA’s Office of Vehicle Safety Compliance (OVSC) contacted Ford in March 2013. The two met to   discuss how its Intelligent Access key system worked. And OVSC asked Ford if it could use its MyCANIC tool. Used with Ford software, the MyCANIC is plugged into the OBD-II diagnostics port to read specific data channels from the vehicle’s computer, namely to access how the “Power Mode” communicated either a “Key Out” or “Key In” reading.

Over the spring, and stretching into the fall the OVSC and Ford jointly reviewed the vehicle. NHTSA asked for more information; Ford provided it. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. And just in case the agency was wondering what Ford really thought of FMVSS 114, it added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford's consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a  ‘key in ignition’ door chime to address the agency's question with respect to the requirements of FMVSS 114 Section 5.1.3 (Theft Prevention).”

Safety Research & Strategies Sues U.S. DOT in (Another) FOIA Dispute

Safety Research & Strategies, an automobile and product safety research and consulting firm, today filed its fourth Freedom of Information lawsuit against the U.S. Department of Transportation, alleging that it has improperly held documents regarding Early Warning Reports.

The lawsuit emanates from two instances in which manufacturers allegedly did not report serious injury claims against them to NHTSA, as required under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act’s Early Warning Reports (EWR) provision. One crash occurred in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused severe injuries to two young children.

“EWR data is supposed to alert the agency investigators to defect trends,” says SRS President Sean E. Kane. “But if manufacturers don’t report complete and accurate information, the system doesn’t work.”

Harmony, which manufactured the child safety seat and Nankang, the Taiwanese tire manufacturer, and Tireco, the tire importer, were notified of these claims via civil lawsuits in August 2010 and November 2011, respectively. Neither, however, showed up in a search of the manufacturer’s quarterly reports to NHTSA.

In March, SRS informed the director of the Office of Defects Investigation Frank Borris, and NHTSA’s Senior Associate Administrator for Safety, Daniel C. Smith, of these apparent omissions. The memo requested confirmation that these claims should have been submitted to the agency via a quarterly EWR submission, and “what actions the agency plans to take.” After receiving no reply, SRS submitted, in May, a Freedom of Information Act request, seeking any documentation that NHTSA followed up with Harmony, Nankang or Tireco, as well, as the agency’s policies and procedures around EWR, and a manufacturer’s failure to submit a reportable incident.  

Time to Call BS: Why Safety Groups Sued DOT Over Backover Rule Delay

Last week, a consortium of safety groups and advocates decided it had had enough of the delay tactics in publishing a final rule establishing a rear visibility standard and sued the Department of Transportation.

“We are going through the motions of trying to put pressure on the system to cough out the rule,” says attorney Henry Jasny of Advocates for Highway and Auto Safety. “We’ve got a new Secretary of Transportation, and to help him along we figured we’d get the court involved.”

The petitioners before the U.S. Court Of Appeals’ Second Circuit in New York includes three organizations – KidsAndCars, Advocates for Highway and Auto Safety and Consumers Union – and two New York residents who have backed over their children – Sue Auriemma of Manhasset and pediatrician Greg Gulbransen of Syosset. The 2008 Cameron Gulbransen Kids Transportation Safety Act was named for two-year old Cameron Gulbransen, who was killed when his father accidentally backed over him in the family’s driveway. It required the agency to issue a Final Rule amending Federal Motor Vehicle Safety Standard (FMVSS) 111, the rearview mirror standard, to, for the first time, define what a driver sees in the rear when backing up to detect pedestrians immediately behind his or her vehicle. The law forced the agency to address a significant design flaw – especially in SUVs – of expanded blind zones caused by the vehicle’s height and bulk. Dramatic pictures from KidsAndCars shows as many as 62 children arrayed directly behind an SUV that would be unseen by driver checking the rearview mirrors.

[flashvideo file=video/KAC_62Children30.flv image="video/KAC_62Children30_Preview.jpg" /]

The original statutory deadline was February 28, 2011, but the Final Rule has been delayed four times, and now is on track to be completed four years after the deadline. In one of his last acts, former Secretary of Transportation Ray LaHood sent another letter to Congress delaying the issuance of a Final Rule until January 2015. (The new Secretary of Transportation, former Charlotte, North Carolina Mayor Anthony Foxx, started in July.)

NHTSA’s “Tough” Stance on Ford Recall – Eight Years Too Late

Well, the agency’s done it again. No longer can reporters call a $17.3 million civil penalty against a manufacturer the “largest fine in agency history.” Nope, now it’s the new normal. This time it was Ford who got rapped with NHTSA’s multi-million dollar automaker swatter, over failing to recall 2001-2004 Ford Escape and Mazda Tribute vehicles to correct an earlier recall repair to the accelerator cable that actually exacerbated the original problem.

Did you follow that? If, not, don’t worry. We’re gonna lay it out in all of its glorious detail.

Like just about everything NHTSA does these days, the path to the fine follows a long roundabout route that reaches its crescendo in a high-profile death. In this case it was Saige Bloom, the 17-year-old driver of a 2002 Escape who died in an unintended acceleration crash in Payson, Arizona on January 27, 2012. Bloom was driving her new used car home, with her mother following in another car, after they purchased the Escape. Bloom lost control of the vehicle, which rolled over. Bloom died of her injuries in the hospital.

Clarence Ditlow, executive director of the Center for Auto Safety, which petitioned the agency to open a Recall Query after Bloom’s death, says that the monetary penalty didn’t go far enough.

“To me, if there was ever a case for a criminal penalty this was it. It meets the requirements of the TREAD act – there was a death,” Ditlow said “In fact, there have been at least three deaths. Who knows how many there are, in reality? There’s an 8-year gap between the first recall and the fine.”

But, as these things tend to go, there won’t be anything as shocking as a criminal prosecution, just a blip on the bottom line. Ford denied any responsibility in the settlement agreement. To quote:

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