Thoroughly Modern Tire Dealer – Not.

Bob Ulrich’s column If the TIA is the Puppet Master is NHTSA the Puppet? in February 14ths Modern Tire Dealer, casts me as an impatient crusader who has single-handedly ginned up a non-existent controversy about the dangers of tire age and used tires in the service of trial lawyers.

The issue of tire age surfaced in the U.S. in the wake of the Ford Explorer/Firestone Wilderness ATX. In 2003, NHTSA fulfilled a Congressional mandate by initiating a tire age rulemaking, which sought manufacturers’ comments. The industry did not exactly distinguish itself. Its responses ranged from denial of any problem to ignorance of testing, analysis or the very concept of tire age.

Our research showed that industry was studying rubber oxidation and heat as early as the 1930s. We also located a pair of German studies from the 1980s which concluded that tires failed at a greater rate after six years and recommended manufacturers alert consumers to prevent potential crashes. We identified the vehicle and tire makers who followed that advice, publishing tire age recommendations as early as the 1990s. Not one industry representative alerted the agency to wealth of information it had about tire age.   

Tire Aging: Is NHTSA Ready to Make Policy?

Last month, at the Society of Automotive Engineers’ annual government-industry conference, a National Highway Traffic Safety Administration (NHTSA) safety standards engineer presented a summary of the agency’s tire aging work, which continues despite not producing any regulatory changes.

The issue that took center stage more than a decade ago, in the wake of the Ford Firestone rollover scandal. The deadly Firestone tires at the center of the controversy met the federal safety standards but nonetheless were de-treading at high rates after several years in service.  In 2001, Congress suggested that the agency consider the feasibility of a tire aging test, and the agency and Ford embarked on a series of experiments to create an artificial oven-aging test for tires. In 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users directed the Secretary of Transportation document NHTSA’s progress on tire aging research, and its findings and recommendations. The agency’s 2007 report to Congress did not make any policy recommendations, but did allow that it was “evaluating the feasibility of a regulation related to tire aging by analyzing the safety problem (tire aging as a significant causal factor in crashes) and potential benefits and costs of a requirement for minimum performance based on an aging method.”

Six years later, no policy and the tire aging docket NHTSA opened in 2005 is officially closed for comments. But the agency (and Safety Research & Strategies -- see SRS Tire Safety) continues to file the results of its tire age research periodically. (The most recent agency submission was in July 2012, a report entitled: “Tire Aging Testing Phase 5.”) Could NHTSA’s Dr. Merisol Medri’s SAE presentation herald the arrival of a rulemaking? Her Powerpoint was not released, (click here for a copy) but our ears perked up at this slide:

“Based on analysis of data from 2005-2007 including databases (NMVCCS, GES, CDS), 90 fatalities and over 3,200 injuries occurred annually as the result of crashes that were probably caused by tire aging or where tire aging was a significant factor.”

This statistic stands out against the agency’s numerical analysis offered in the 2007 Research Report to Congress on Tire Aging: “From 1994 to 2004, NHTSA estimates that about 400 fatalities, annually, may be attributed to tire failures of all types.”

Doing the rough math -- does this mean that about quarter of the annual tire-related fatalities are due to tire age? And, how did NHTSA arrive at that figure? Tire Identification Numbers (TIN) – the only way to discern a tire’s age – are not available in the public version of some of those datasets. (We are aware that NHTSA has begun to collect TINs for some sub-sets of crash data.) According to Medri the agency will be publishing a more detailed account of its research in a new report that will be published in the tire aging docket, at some unspecified time.

Another Domino Falls: GM Adds Tire Age Warning

On July 3, 2010, three generations of the Taylor family were returning from a family vacation in Disneyland to their home in Phoenix, when the right rear tire on their 2003 Chevy Trailblazer experienced a catastrophic tread separation. John Taylor, a retiree who worked all 38 years of his career at General Motors, lost control of the vehicle on I-10, about 45 minutes from home. The Trailblazer rolled over, fatally crushing Taylor and killing his 8-year-old grandson Quinn Levi, who was ejected when the third-row seat belt unlatched. Taylor’s wife, Eileen, his son-in-law, Bill, and his daughter Susanne Levi, who bought the Trailblazer with her father’s employee discount, suffered upper body injuries. The youngest son, secured in a child safety seat, was unharmed.

The tire that failed was a seven-year-old full-sized spare that had been rotated into service in 2007. Before that, it stayed stored in the spare well, right up near the engine exhaust system, where the hot exhaust pipe, combined with the brutally hot climate of Phoenix, accelerated the thermo-oxidation of the BF Goodrich Rugged Trail tire, diminishing its strength.

“This was the perfect storm” says Phoenix attorney Curt Clausen, who represents the Taylor-Levi family in a civil lawsuit against manufacturer General Motors.

Moving Tire Recalls into the 21st Century

Safety Research & Strategies has urged the National Highway Traffic Safety Administration to add Tire Identification Numbers to a newly mandated web portal to identify recalls.

In September, the agency published a Notice of Proposed Rulemaking on the possible changes to the provisions regarding Early Warning Reporting data. It also proposed requiring automobile manufacturers to submit Vehicle Identification Numbers (VIN) of specifically recalled vehicles, and maintain records of the recall remedy status of each specific vehicle. This was a requirement of the Motor Vehicle Safety Improvement Act, contained within the highway re-authorization bill known as Moving Ahead for Progress in the 21st Century Act, MAP-21, for short.

The recall statute mandates that NHTSA require that motor vehicle safety recall information be made available to the public on the Internet, and authorizes the Secretary of Transportation to require each manufacturer to do so. In the NPRM, NHTSA explained that it already had a website where consumers can look up recalls by vehicle make and model, or by the recall campaign number.  It proposed to simply add a VIN field to its current search capacity.

The authors of MAP- 21, however, forgot to require the same of tire manufacturers. SRS has submitted comments to this docket suggesting that the agency add a TIN-look-up, along with a VIN.

The omission is another sad chapter in the history of the Tire Identification Number (TIN) and tire safety. The Tire Identification Number has its origins in a Rubber Manufacturers’ Association strategy to seize the regulatory reins from the National Highway Safety Bureau, predecessor to NHTSA, as the tire identification standard was promulgated more than 40 years ago. It was established to help consumers identify tires in a recall. But, as is the case in many rulemakings, industry fought hard to mold the regulations to its own ends and convenience.

Pattern of Fraud Brings Down Goodyear

Is it time for Goodyear to just give up the ghost on the G159 tire? Sure, they had a good run for a while, selling the tire to the motor home industry – even though the tire was designed for urban delivery vehicles and speed-rated for only 65 mile per hour continuous use. And when those tires failed on motor homes, causing rollovers, catastrophic injuries, deaths and lawsuits, Goodyear had a good run limiting the damage by keeping the damning documents from spreading from one litigant to another – or just keeping them to themselves. But their run seems to be about done, for the tire and the legal strategy. The Chief Justice of the United States District Court for the District of Arizona, Roslyn O. Silver, has issued a lengthy and devastating sanctions order against Goodyear, and attorneys Graeme Hancock of Fennemore Craig PC and Basil Musnuff formerly of Roetzel & Andress, who represented the tiremaker against the product liability claims lodged by the Haeger family.  Judge Silver’s order starts like this: “Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests. The little voice in every attorney's conscience that murmurs turn over all material information was ignored.”

It’s Tire Safety Week! Is There Anything to Celebrate?

In April, materials scientist John Baldwin bluntly schooled insiders at the annual Tire Industry Conference about things the rubber industry has known for decades from its own internal research. He pointed out that relying on tire tread depth to determine the viability of a tire is a bit of a crapshoot:

“In the tire industry, a lot of decisions are based on tread depth,” he said. “But what is the significance of tread depth? There is uneven wear on damn near every tire.”

He took note of the unsafe practice of rotating unused, but old spares onto vehicles:

“The average full-sized spare tire is nine years old,” he said. “You can tell your tire store to take that perfectly good spare tire and put it on your car. But if you’re in Yuma or Miami, do you really want that nine-year-old spare going on? “Meanwhile, the average mini-spare is 12 years old. That means you’re screwed.”

And he took exception to what he calls the Rubber Manufacturers Association’s (RMA) mischaracterization of his tire aging research for Ford Motor Company.

The Heavy Price of a Delayed Recall

Goodyear has notified the National Highway Traffic Safety Administration that it is recalling 40,915 Wrangler Silent Armor flagship tires, more than a year after the company observed a higher rate of warranty and property damage claims, and three months after two Texas college students died in a tire failure that precipitated a rollover crash.

The August 1, 2011 incident claimed the lives of Matthew Smith and his passenger Kerrybeth Hall, as Smith drove southbound on U.S. Highway 67 in Pecos County, Texas. The left rear Wrangler Silent Armor tire on the 2008 Ford F-150 pickup de-treaded, causing the pick-up to skid and rollover. Smith was fatally ejected from the F-150. Hall, who was properly restrained, also suffered fatal injuries in the crash.

“I think Goodyear was getting lot of warranty claims, but said, ‘Let’s see what happens,” says David T. Bright, an attorney with Sico, White, Hoeschler & Braugh of Corpus Christi, TX, who represents Gerry Lynn Wilkinson, Kerrybeth’s mother, in the civil case against Goodyear. “Then Goodyear waited another 12 months, and decided:  Hang on. Let’s wait a while longer. And three months later, these two people got killed.”

According to documentation Goodyear filed with the National Highway Traffic Safety Administration (NHTSA) on February 22, the tiremaker had first noticed elevated property damage and warranty claims for the Wrangler Silent Armor tire, during its May 2010 review of Early Warning Data. Over the next 12 months, the company would continue to see high levels of warranty and property damage claims specifically for six sizes of the tires produced at its Fayetteville plant. But Goodyear still resisted a recall, passing off the uptick as isolated cases caused by “stone drilling damage and other external damage to the tires.”

Tire Dealers Rally for RMA and Against Customers on Tire Aging Bill

It was all hands on deck yesterday afternoon at the Maryland House of Delegates Economic Matters Committee as tire makers and retailers tried to beat back another state effort to require tire sellers to disclose a tire’s age to consumers.

HB 729, Consumer Protection – Tire Age – Required Notice, requires tire sellers and distributors to place a label on the tire displaying the month and year in which the tire was manufactured and a statement about tire age and tire deterioration. The tire seller would also have to put the tire’s age on the receipt and have the customer sign a written disclosure about tire age. Customers would receive a copy of the disclosure, and the retailers would retain a copy of it for an unspecified amount of time. The penalty for violating the statute would be not more than $500.

Michelin Rapped for "Bad Faith Conduct"

A federal judge in Atlanta has ordered to Michelin North American to pay attorneys’ fees and established that a Uniroyal Laredo Tire was “defective and unreasonably dangerous” as a sanction for nearly two years of discovery abuse.

“In sum, Michelin’s bad faith conduct caused serious prejudice to the integrity of the legal process and to Plaintiffs’ orderly, effective development and proof of their case,” U.S. District Judge Amy Totenberg, of the Northern District of Georgia, wrote in her 61-page decision. “The pattern of abuse by Michelin is extremely troubling.”

Judge Totenberg’s patience was pushed past its limits in Bates v. Michelin North America, a tread separation case. In November 2009, Johnny and Patricia Bates of Evergreen, Alabama sued Michelin North America for negligence and strict liability in a tire-related rollover crash. On December 25, 2008, Johnny Bates was belted and at the wheel of his 2001 GMC Jimmy travelling northbound on I-85 in Fulton County, Georgia, when the left rear tire, a Uniroyal Laredo suffered a tread separation. The tire failure caused a loss-of-control rollover, leaving Mrs. Bates with injuries. Mr. Bates suffered catastrophic and permanent spinal and brain injuries that have left him a quadriplegic.

The Atlanta firm of Butler, Wooten & Fryhofer LLP, who represented the Bates family, requested that Michelin produce, among other things, warranty adjustment data, design and production tolerances and documents relating to specific defects. But, after a year of wrangling over confidentiality and the scope of the request, Michelin had only produced a “strikingly small” number of documents. On January 3, 2011, the Court ordered Michelin to produce all of the documents the Bates family sought. Michelin petitioned for reconsideration, and, after losing that round, continued to withhold the documents.

Will Manufacturers Kill the Used Tires Biz?

Tiremakers have long held the re-sale market at arms length, out of a healthy respect for the boundaries of anti-trust regulations.  But a number of factors are aligning that may shift the market away from the re-sale of used tires for vehicles. The cost of selling used tires is going up – the scrap market is growing in tandem with the demand for used tires to be recycled into fuel to meet the energy requirements of rising economies, such as China’s. At the same time, tire litigation is getting more sophisticated and manufacturers have a keener understanding of their liability.

In 2007, Safety Research & Strategies kick-started this shift by publishing Used Tires: A Booming Business with Hidden Dangers. The report made the link between crashes, tire age and used tires, using data to show that nearly one-third of aged tire crashes investigated involve used tires. It also noted that inspections by used tire wholesalers are cursory and lead to dangerous tires entering the market and recommended used tire sellers adopt higher standards that included visual reviews and internal examinations, such as shearography or X-rays.

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