While You Were Out ...

We’re all familiar with the Friday afternoon news dump – release something controversial at close of business on the last day of the week. Don’t leave reporters much time for digging or tracking down interview subjects, and hope everyone is too busy livin’ for the weekend to pay attention.

EWR: Elective Warning Reports - When Manufacturers Don't Report Claims

Last week was a case of déjà vu all over again, to quote Mr. Yogi Berra, as NHTSA, and one of its “regulatory partners,” General Motors, faced their Congressional interlocutors, for the second performance of Safety Accountability Theater since 2000, when Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act. Fourteen years ago, it was the Ford Explorer/Firestone tire fiasco that set all those hands a-wringing. Five years ago, it was Toyota Unintended Acceleration. Now, its GM ignition switches.

These come-to-Jesus gatherings were supposed to be obviated by the creation of the Early Warning Reporting (EWR) system. A major component of the TREAD Act, EWR requires manufacturers to submit reams of death, injury, property damage, warranty and other data to the government on a quarterly basis. It’s an honor system that depends on truthful reporters.

More than a year ago, SRS discovered three death and injury claims that had not been reported through EWR, and sought out NHTSA to confirm this apparent lapse and determine NHTSA’s policy toward manufacturers that did not submit reportable injury claims. As is usually the case when we try to help our favorite federal agency, SRS got crickets. And, as is usually the case in that circumstance, we submitted a Freedom of Information Act request to find out what they did about the information we gave them, and the agency’s policy for ensuring that reportable claims were getting into the system.

As is usually the case, NHTSA said that it had practically no information to share. As is usually the case, SRS called B.S. filed an appeal, and when that failed, took it to the U.S. District Court. And, as is usually the case, NHTSA found more responsive materials.

Last week, U.S. District Court Judge signed a Settlement Agreement between SRS and the DOT in which the government paid our legal fees. As is usually the case.

Graco’s Perception Problem

Leiana Marie Ramirez was three days shy of her second birthday, when she was burned alive, strapped in a Graco Nautilus child safety seat.

 On August 26, 2011, her mother, Samika Ramirez had been out running errands related to Leiana’ party – delivering cupcakes to her pre-school, shopping for Lieana’s birthday present. The pair was on the way home, southbound on Arroyo Seco Parkway in South Pasadena, when Samika felt her Nissan Altima swerve, and thinking she had a flat, regained control of her vehicle, stopped in the left-most lane and put on her flashers. The divided highway had no breakdown lane, just a narrow shoulder.

 Ramirez was about to call AAA, when another driver, who hadn’t noticed the stopped Altima, plowed into its rear end. The vehicle almost immediately caught fire. According to the police reports, Samika tried frantically to unbuckle her daughter, but could not release the harness. The flames engulfing her car were too intense, and onlookers pulled Samika Ramirez out of the car, while Leianna stayed behind. She witnessed her daughter’s death.

 More than a year later, the National Highway Traffic Safety Administration would open an investigation – still pending – that would eventually result in a recall of the Graco Nautilus and 17 other models for buckles that were so difficult to unlatch that some consumers complained to NHTSA that they had to cut the belt webbing to get their children out of the seat. And, from the beginning, Graco would concede that it was “keenly aware of the issue.” Indeed, it had collected more than 6,100 complaints about it.

 But Graco insisted that the inability to extract a child from the car seat was merely “a consumer frustration and a consumer experience that Graco has been working to improve.” To this date, Graco has not acknowledged that this defect led to a horrific death – not in its responses to the agency’s investigative information requests; not in its Part 573 Defect and Noncompliance Report and not in its Early Warning Reports. The company paid a big fine to the U.S. Consumer Product Safety Commission in 2005 for a long history of failing to report injuries and deaths. Even now, with the initial recall expanded and under a Special Order to answer all questions truthfully, Graco comforts its customers on its website:

 Graco can assure you there have been no reported injuries as a result of the harness buckles used on Graco car seats. We want to stress that our car seats are safe and effective in restraining children.  And, the safest way to transport a child is always in a car seat.

 NHTSA declined to comment on Graco’s stance, via a statement to The Safety Record:

 “Although Graco has submitted a defect notice in response to NHTSA’s recall request, our investigation remains open.  As such, the agency cannot discuss or comment at this time.”

 Attorney Christine Spagnoli, who represents the Ramirez family, says that Graco’s failure to acknowledge Leiana’s death will negatively affect the efficacy of the recall”

 “To me the issue is this: by putting on their website that there are no reported claims and by telling that to NHTSA, They are trying to dissuade people from getting new buckles,” says Spagnoli of Greene, Broillet & Wheeler, LLP. “This is a safety issue, and by saying something false to the public, they’re trying to save money, at the expense of kids getting hurt.”

 The Investigation

 The Preliminary Evaluation into Graco buckles opened in October 2012 with 25 complaints reported to NHTSA via their Vehicle Owners Questionnaire database, containing hypotheticals that echoed the Ramirez incident, like this one, filed with the agency in September 2012:

NHTSA Proposes Side Impact Protection for Children

With just six months to go before a Final Rule is due to be published, the National Highway Traffic Safety Administration has released its proposal to add side impact testing to the child seat safety standard for children up to 40 pounds.

To the uninformed, the NPRM reads like the history of an agency moving forward expeditiously toward a test that will lead the way for global child safety standards. And it is true that the proposed sled test adds a new deformable door component. But a more complete dive into the history of side-impact crashes and protection for child shows that this innovation should have been an amendment to an existing side impact test for child safety seats. This proposal is waaaaay late, and the result of not one—but two—Congressional mandates, about a dozen years apart.

Here’s the truth: (And you can measure it by policy, by regulation, by research, by public engagement – it all comes out the same.) Protecting children in crashes has never been a priority for the agency, nor for the automakers. That’s how you get the first side-impact compliance test for child safety seats in 2014.

Nonetheless, some child seat safety experts are applauding the effort.

“I’m very excited that this is finally being implemented,” said Gary Whitman, Vice President, Research and Development at ARCCA Inc, and an expert in occupant crash safety systems who has tested hundreds of child seats and collaborated with NHTSA, the Pennsylvania chapter of the American Academy of Pediatric Child Injury Prevention, National SAFE KIDS Campaign, and the Children’s Hospital of Pennsylvania in child restraint research. “It’s long overdue and it’s a shame that it required an act of Congress.”

At the same time, Whitman and biomechanical expert Salena Zellers Schmidtke agree that the proposal has some serious deficits – it only protects children up to 40 pounds, and makes questionable assumptions about the efficacy of side air curtains for children in booster seats in a side impact crash.

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.  

The Safety Record Special Report: How Consumer’s Union Shocking Child Seat Tests Forced the Recall of the Evenflo Discovery

Editor’s note: The Safety Record spent more than a year seeking the documents related to Recall 08C002 involving Evenflo Discovery child restraint.  The Safety Record undertook this project because the defect was serious, resulting in a recall of more than 1 million seats. Yet, much the public record explaining how this recall came about was missing, and, the National Highway Traffic Safety Administration was not forthright in its actions or in its public statements in February 2008. The Safety Record is committed to ensuring that the public record is complete and to bringing transparency to NHTSA’s important regulatory and investigative activities in the interest of government accountability. Documents obtained following the successful settlement of Safety Research & Strategies litigation against NHTSA show that the Evenflo recall was the result of secret investigations and behind-the-scenes exchanges between the agency and Evenflo. This Special Report, in part, is based on these records.  

On September 19, 2005, Isaac Neal Eslinger died of his injuries in a rollover crash that occurred the day before. He was seven months old. His mother Debra was at the wheel of the family’s 1996 Isuzu Oasis van, travelling north on Highway 6 towards Mandan, North Dakota. According to the police report of the crash, the last thing Debra Eslinger remembered was glancing back at her daughter, before realizing that she had swerved onto the shoulder of the other side of the road. Debra tried to correct her steering, but lost control of the van. It rolled over and came to rest in a ditch on the east side of the highway.

Debra, who was wearing her seatbelt, and her three-year-old daughter, secured in a child safety seat, survived the crash without any injuries. The Evenflo Discovery infant seat holding Isaac, however, detached from its base in the crash. Isaac, still strapped in the seat, was pitched out of the van. He died of a skull fracture and head injury.

Isaac’s father, Neal Eslinger, a chiropractor in Bismarck, paid tribute to his only son on a blog he writes, called My Living Strength:

“Isaac has a spirit presence that warmed all hearts. He was a “master of smiling” as he displayed his prominent dimples, twinkling eyes and his unique laughs, giggles and squeaks. The mere glimpse of his mother or sound of her voice would bring a smile and a laugh that truly was an honor to witness. …Isaac was a gift from God and he always was and always will be “Our Little Angel.” Words cannot express the blessings he brought into our lives.”

Three weeks after the crash, on Oct. 7, 2005, Isaac Eslinger’s death in an Evenflo Discovery infant seat was reported to the National Highway Traffic Safety Administration. Fifteen months later, NHTSA’s Office of Defects Investigation came looking for the crash report.

January 2007 would turn out to be a turning point for the popular infant carrier combination car seat. A controversial Consumer Reports story claimed that sled-tests showed that some models of the Discovery had a tendency to separate from its base under the stress of crash forces. This wasn’t actually news. A spate of infant deaths and injuries linked to base separations had initiated a low-level NHTSA investigation in 2004. But that probe was closed four months later with no defect finding.

NHTSA and Evenflo swiftly dispatched the Consumer Reports story by pointing out that its side-impact sled tests were actually conducted at a much higher rate of speed than the story claimed. Within weeks, Consumers Union, publisher of Consumer Reports, printed a retraction, withdrew the story and apologized to its readers. But one year later, NHTSA and Evenflo announced that the juvenile products manufacturing firm was recalling 1.1 million Discovery infant carriers because testing by both parties showed that it could separate from its base in a side impact.

In the three-and-a-half year gap between the closing of the first investigation and the recall of the Discovery infant carrier were two secret NHTSA defects investigations into the infant carrier’s propensity for seat base separations, the discrediting of a consumer advocacy organization that attempted to raise the bar on child restraint safety, and more child injuries and deaths in crashes that resulted in base separations.

The recall was five years ago, but questions about its origins linger. Save a flurry of stories published about CU’s testing mistake and retraction, and fewer when the recall was announced a year later, the record surrounding this child safety defect has remained hidden from public view. Increasingly, this appears to be by design. NHTSA frequently hides the extent of its investigative activities and its negotiations with industry. If no formal Preliminary Evaluation or Engineering Analysis is opened, the public record is never established. This secrecy has been the subject of criticism by safety advocates, who say that it allows the agency to avoid accountability, and by the Department of Transportation’s Office of Inspector General. In an October 2011 audit, the OIG criticized the Office of Defects lack of documentation and transparency:

“Without comprehensive documentation of pre-investigation activities, ODI’s decisions are open to interpretation and questions after the fact, potentially undermining public confidence in its actions.” Noting NHTSA’s failure to document meetings with manufacturers, OIG recommended “a complete and transparent record system with documented support for decisions that significantly affect its investigations.”

In November 2011, Safety Research & Strategies filed a Freedom of Information Request for the communications between NHTSA and Evenflo surrounding February 2008 recall. When NHTSA responded that it had no such documents, SRS appealed – arguing that the simultaneous press releases issued by NHTSA and Evenflo showed that each entity knew about the other’s test results on the Discovery – evidence of communication between the two. In April, after NHTSA did not respond to SRS’s appeal, the company filed a civil lawsuit in U.S. District Court to obtain the documents. In February, SRS and the Department of Transportation settled the lawsuit, after NHTSA released all of the documents it said were in its possession. The Department of Transportation paid SRS’s costs and legal fees of $14,281. 

NHTSA's FOIA Problem

Safety Research & Strategies, a Massachusetts safety research firm that advocates for consumers on safety matters, has filed its third Freedom of Information Act lawsuit against the U.S. Department of Transportation alleging that the National Highway Traffic Safety Administration (NHTSA) has improperly withheld documents – this time related to in the Evenflo infant seat recall of 2008.

“NHTSA is the DOT’s only designated public health agency,” says Sean Kane, president of SRS, “Decision-making on important safety matters should not be a private affair between the agency and the regulated.  We will continue to press for the release of documents that should be in the public domain.”

Evenflo recalled the Discovery infant carriers in February 2008 – one year after Consumer Reports, a Consumer Union (CU) publication, printed a controversial story rating rear-facing infant car seats in front and side-impact sled tests. The CU tests showed that only two of the 12 seats performed well in tests and most failed.  And as part of the story, CU urged the recall of the Evenflo Discovery.

NHTSA conducted its own sled tests to check CU’s results and found that the organization’s testing contractor, Calspan, had assessed the seats under conditions that represented a more-than 70-mph impact, instead of the 38.5 mph intended. CU profusely apologized and withdrew its report.

One year later, NHTSA and Evenflo simultaneously released brief announcements that the juvenile products company would recall 1.1 million Discovery infant seats. Using strikingly similar language, both press releases referenced recent tests conducted by NHTSA and Evenflo which showed that “this car seat has the potential to separate from its base.”

Time to Examine Rear-Facing Infant Seat Safety Improvements?

That an infant seat should be placed in the rear-seat of the car, facing rearwards is an article of faith, preached by the National Highway Traffic Safety Administration and the American Academy of Pediatricians. Manufacturers only make rear-facing infant seats.

On its website, NHTSA advises:

“A rear-facing car seat is the best seat for your young child to use. It has a harness and in a crash, cradles and moves with your child to reduce the stress to the child’s fragile neck and spinal cord. Your child under age 1 should always ride in a rear-facing car seat.”

But Transport Canada researcher Suzanne Tylko presented data at the biennial Enhanced Safety of Vehicles conference that questions the certainty of that policy. Transport Canada has been at the forefront of child motor vehicle crash safety research. In particular, the agency’s dynamic testing has yielded important insights. In this three-year study, TC tested 131 child restraints in 85 motor vehicle crash tests. The vast majority were rigid barrier tests on rear-facing infant seats, secured by a three-point belt conducted at speed of 48km/h; 11 were conducted at 56 km/h; and seven were conducted at 40 km/h. TC also tested seats in offset deformable barrier tests, conducted at 40 km/h. (Fourteen tests involved convertible seats installed facing the rear.)

Round 437: No One Cares About Kids in Cars – Still

Last week, the National Transportation Safety Board gathered all the government, industry and academic play-ahs in the board room of its headquarters to answer a question that’s been nagging safety advocates: Why doesn’t anyone give a damn about child safety in cars and planes?

The day-long meeting was meant to be a kick-off to the NTSB’s 2011 focus on child safety in airplanes and automobiles, with a special focus on increasing child restraint and seat belt use rates. Note to NTSB: you might want to allocate more time to this project – the lag in child safety regulation and industry practices has been the sad state of affairs for decades. Decades.

First up was the Federal Aviation Administration. The agency defended its practice of allowing children to fly without child safety restraints. Without a hint of irony, the FAA said that such a requirement would result in more people driving rather than flying, putting children at higher risk because the injury and fatality rates for children in motor vehicle crashes far surpasses that those in an airplane.

Evenflo Discovery Recalled One Year After Consumers Union Urges Its Removal from Marketplace

VANDALIA, OHIO - One year after Consumer's Union called for its removal in a controversial article and the National Highway Traffic Safety Administration defended its safety, the Discovery Infant Car Seat has been voluntarily recalled in advance of a possible defect investigation.

Evenflo announced in early February that it was recalling models 390, 391, 534, 552 - a total of 1 million car seats - based on "recent laboratory tests conducted by Evenflo and the National Highway Traffic Safety Administration, which show that this car seat could potentially become separated from its base in high impact side collisions similar to those in the tests."

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