“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.

In May 2011, the attorneys for the Bates family first asked for sanctions because Michelin failed to produce the warranty data. The tiremaker responded by giving over only a list of conditions identifying — by name only– the causes for warranty adjustments, but not the actual numeric codes.

On June 3, 2011, the judge ordered Michelin to produce those codes and all of the supporting documents, along with a stern warning: “Any further delays, manipulation of discovery … or basically failure to function in good faith in producing fully all information requested or ordered … will result in a substantive sanction …comparable to what Plaintiffs have asked the next time it comes in front of [the Court].”

Judge Totenberg then sanctioned Michelin for its actions and awarded the plaintiffs’ attorneys fees.

But, Michelin’s legal team paid no mind. In a second sanctions motion filed at the end of June, plaintiffs’ counsel again asked for tire adjustment documents for the Uniroyal Laredo series or similar models being withheld by Michelin. And by the end of September, when the judge held another hearing on the issue, other discovery abuses came to light. Plaintiffs’ counsel learned in depositions of two Michelin employees that the tiremaker had withheld other documents that were directly relevant to the defect issue.

At the September hearing, Butler, Wooten & Fryhofer presented evidence that Michelin failed to produce all of the adjustment data on three separate occasions and that the company’s responses to its request for warranty data were intentionally obscure. At first, Michelin produced a chart summarizing by month the number of tires produced and the total number of tires returned for tread belt separation – which was useless without the supporting documentation of the raw data, the codes, and the accompanying documents about how the data is collected, tabulated, and analyzed.

Michelin followed with a second chart, which was similarly useless:

“Despite being previously sanctioned for producing a meaningless list of adjustment conditions without the necessary interpretative documents, Michelin again produced a chart of adjustment data that could not even be interpreted by Michelin’s own in-house expert,” Judge Totenberg wrote. “Mr. Patrick testified that Michelin does not analyze its adjustment data in the format produced to Plaintiffs in this litigation and confirmed that the adjustment data, if presented in a meaningful format, could be used to determine whether (and how many) tires were being returned for conditions resulting from a manufacturing or design issue, whether Michelin was aware of such conditions in the tire, and whether any changes were made to the tire as a result of a high return rate.”

Unlike the recent discovery sanctions order in Stimpson v. Ford, in which Judge William T. Swigert of the Fifth Judicial Circuit in Sumter County, Florida found that Ford Motor Company had implemented a systematic internal and external cover-up of the electronic causes of Unintended Acceleration in some of its vehicles – including lying to the National Highway Traffic Safety Administration and its own in-house expert — Judge’s Totenberg’s order focused on a narrower production issue. Swigert’s and Totenberg’s orders, however, did share a frustration at the defense’s attempts to turn its obfuscation into a virtue.

Michelin pleaded that the omissions were nothing more than human error, but Judge Totenberg was not persuaded.

“First, Michelin made multiple misrepresentations to the Court that it had produced documents as ordered by the Court when it in fact had not. Second, Michelin repeatedly refused to produce documents in direct violation of the Court’s January 3rd, June 3rd and June 24th Orders. Third, Michelin intentionally engaged in an extremely narrow, unjustified interpretation of the Court’s Orders in order to limit, or altogether avoid, producing relevant and useful documents in response to Plaintiffs’ discovery requests.”

Judge Totenberg rejected outright Michelin’s argument that it did not have to produce Michelin’s Failure Modes and Effects Analysis, but did so “in good faith..” These documents, she said, were “very clearly relevant” to the plaintiff’s claims because they “discuss the precise conditions –trapped air, adhesion, molding, how those conditions develop in the manufacturing process, and the methods for detection and prevention of those conditions in a tire before it leaves the plant.”

The judge also noted that this abuse and the uncovering of documents that were key to the plaintiffs’ case would not have come to light but for plaintiffs’ counsel’s persistence:

“According to plaintiff, the subject tire failed to meet the tolerance limits and should have been scrapped.” Without the documents produced only after court intervention, plaintiff would not be able to prove the defect in the subject tire.

The order also specifically addressed Elizabeth C. “Kate” Helm, of Nelson Mullins, Riley & Scarborough, LLP, Michelin’s national discovery counsel, whose consistent forgetfulness on which Michelin representative gave her the incomplete or redacted information drew notice:

“Although the Court originally believed Ms. Helm’s affidavit testimony that the failure to produce the missing adjustment codes was an innocent oversight, and while this may very well be true, the credibility of her statements over time has been eroded by the actual course of discovery events. In light of Ms. Helm’s evasive and inconsistent testimony at the September 19th hearing and Defendant Michelin’s shifting representations made to the Court since June 3, 2011, the Court cannot simply rely on Michelin’s avowals of good faith regarding any of these discovery issues.”

The order left open for trial the question of whether the “defective and unreasonably dangerous” Laredo tire was the cause (or partial cause) of Bates’ car accident. Currently, lawyers for both sides are working through a thicket of motions. No trial date has yet been set.

In 2007, Safety Research & Strategies helped 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.

The story gained traction in the mainstream press, garnering stories in major daily newspapers, such as The New York Times, and the Wall Street Journal, and television news stations covering large markets, such as KHOU of Houston, Texas. In response, Continental issued a Technical Bulletin listing dozens of concerns to look for before a used tire can be considered. Bridgestone-Firestone announced that its corporate stores would no longer sell used tires. The Tire Industry Association (TIA) announced that it would examine a used tire safety program and service certification program.

And in May 2007, the Rubber Manufacturers Association issued a Tire Information Service bulletin warning consumers about the dangers of used tires. After a disclaimer that it’s okay to install a used tire if a consumer knows the tire’s history and has it properly repaired, the association enumerated 14 conditions that posed a used tire risk, including: innerliner or bead damage; indication of internal separation, run flat under-inflated or overloaded damage, a defaced Tire Identification Number, inadequate tread depth and evidence of improper storage. It’s unclear how the average consumer would be able to discern any or all of these conditions without training or a shearography machine, but the RMA took a step away from the secondary sale market.

Subsequent to the RMA bulletin a Goodyear manager wrote a letter to the company’s National Account Sales Lead stating Goodyear’s desire to migrate 100 percent of their used tires to the scrap market.

“Goodyear would like to be the first tire manufacturer to completely destroy the tires removed from customer vehicles in their retail stores.  This shift in focus for tire disposal is in response to a growing concern that “used” tires are becoming an unsafe alternative for consumers to cut costs.  Currently 8-20% of Goodyear scrap tires that are disposed of at Goodyear locations find their way to a tire re-seller and this is a way for waste management companies to generate revenue to offset rising operating costs.  Although re-sellers can provide a warranty for these used tires, Goodyear takes responsibility to properly dispose of these scrap tires to insure the public’s safety.”

More recently, economics are coming into play. A July Tire Business report, noted that exports of California scrap tires were being exported to Asia in such quantities that scrap tire dealers in that state were hard pressed to find enough inventory “to stay in business.” One tire recycler in Livermore, CA said that he had lost up to 40 percent of his business to exporter to Asia, where they would be used as tire-derived fuel.

And certainly, litigation will be a force in the break-up between manufacturers and the used tire business. In the past, plaintiff’s attorneys, which have successfully sued tire dealers for mounting defective used tires. But as tire litigation is becoming more mature, and attorneys are going after manufacturers as well.

While the RMA’s 2008 Used Tire Bulletin may not have been a smoking gun in a products liability case, arguably because manufacturers have an interest in selling more new tires, the Goodyear letter, written in plain-as-day English certainly has potential.

The A’s, as Michael Lewis, author of the book on which it is based describes the team, was populated with Major League’s castoffs – catchers and pitchers who looked more like beer-swilling bowlers, college prospects that the talent scouts had deemed too cold to bother with, and a computer nerd for an assistant GM.  But Beane knew from his own field experience just how wrong Major League Baseball could be in assessing players. He chose, instead, to exploit a different set of metrics developed by a passionate fan who happened to be statistically apt, but shunned by the rest of Beane’s peers. Using this recipe, he cobbles together victory after victory.  The book roughly follows the A’s during the 2002 season, from the June amateur player’s draft to the historic September 4^th game, in which the A’s won their 20^th consecutive game – breaking a 102-year old American League record.

Among the book’s heroes is Bill James. James is the quirky inventor of Sabermetrics, the statistical analysis of baseball data, used to better understand success and failure in the game. James had a restless, numerically inclined mind and, it would be fair to say, an obsessive interest in baseball. The marriage of his aptitude and his interests produced a series of abstracts and books on baseball metrics, beginning in 1977. At first, James was ignored by all but a handful of fans. But, eventually, he gained a following. And in 1997 one of them became the manager of the Oakland A’s.

If the narrative has a villain, it’s Major League Baseball itself. Wholly in the thrall of its own myths, this billion dollar enterprise, when it bothered with data at all, used it incorrectly. Rich teams could skim the obvious cream of talent, but beyond buying wins, hadn’t a clue how it was really done.

Lewis’s point was that even with huge sums of money at stake, those most vested in the outcome can be utterly blinded by their own subjective biases. Once biases are institutionalized, they become facts, stubborn in the face of new or competing or different information. Those who can’t even identify the data that should be informing critical decisions – let alone using it properly – are bound to make expensive mistakes.

So what’s The Safety Record’s point? We saw a number of striking parallels to the way NHTSA operates, when it comes to numbers.  The agency is, ostensibly, data-driven and science-based. Hell, it slaps that phrase on everything from Powerpoint presentations to appropriations requests. But there’s plenty of evidence that the agency dismisses – out-of-hand – outside information; that long-held beliefs hamper its data analyses; that it pays way too much attention to data that is not useful and fails to collect data that is.

Moneyball: For example, here Lewis characterizes James’ assessment of MLB’s metrics:

“Worse, baseball teams didn’t have the sense to know what to collect, and so an awful lot of critical data simply went unrecorded.”

NHTSAball: There’s lots of data NHTSA doesn’t collect. For example, the agency has promulgated a recall system for tires that is predicated solely on the Tire Identification Number. Years of rulemaking were devoted to debating the format of the TIN, popularly known as the DOT code, an 11-character, alpha-numeric code that represents the plant, size, date of manufacture molded into the sidewall of a tire. The aim of the TIN was to identify a recalled tire and it is the only definitive measure to do so.  Does NHTSA require tire makers who recall their products to list the range of TINs in the recall population? No, it does not. Some manufacturers report it; others don’t. NHTSA’s good, either way. The DOT code would be a nifty little data point in any tire-related fatality in the Fatality Analysis Reporting System. The agency could use such data to identify tire failure trends, but it remains information uncollected. And while we’re on tires, NHTSA doesn’t require manufacturers to report tire claims if the tire is older than five years – so no data, no problem for the aged tire issues that took center stage following Firestone recalls in 2000 and 2001 and remain a constant source of catastrophic crashes.

The GAO criticized NHTSA in a June report on the agency’s recall practices for not using recall repair rate data to analyze trends and institute best recall practices:

“Based on our analysis of NHTSA data, without conducting a broader aggregate level analysis to look for outliers, patterns, or trends, the agency may be missing an opportunity to identify underlying factors that affect recall campaign completion rates.”  (see GAO Study:  NHTSA Needs Improvement)

The DOT’s Office of the Inspector General has twice rapped the Office of Defects Investigations, in 2002 and 2004, for failing to have a systematic defect screening process to “identify high priority cases and to ensure a degree of consistency in the decision making process.”

Moneyball: On the concept of collecting fielding error stats, James concluded, according to Lewis: “…the concept of an error, like many baseball concepts, was tailored to an earlier, very different game… The statistics were not merely inadequate, they lied. And the lies they told led the people who ran major league baseball teams to misjudge their players and mismanage their games.”

NHTSAball: Here we have to bring up one of our enduring themes – NHTSA’s inability to look beyond driver error in Unintended Acceleration complaints. The agency’s intractable position was cemented into place in 1989, with the publication of “An Examination of Sudden Acceleration,” the agency’s contracted report intended to end the debate on what caused these seemingly inexplicable events. Allan Kam, who worked as an enforcement attorney for 25 years, explains that the study, called the Silver Book within the agency in reference to the color of its cover, took on an almost religious status within ODI.

“When the Silver Book came out that was viewed by ODI staff as the Bible – it was validation that SUA equals pedal misapplication,” Kam said. “Thereafter, reports of alleged SUA were compartmentalized as pedal misapplication. There was an institutional bias against the credibility of consumers reporting SUA—they must be mistaken; they were rationalizing it because they didn’t want to take responsibility. It was thought to be mechanically impossible. Of course, when that report was prepared there were less complicated electronics on vehicles.”

The agency has ample data and evidence that electronics are implicated in Toyota UA events – the discovery of tin whiskers in accelerator pedal electronics, Toyota’s own dealers and field technical staff reports, an unexplained spike in consumer complaints after the introduction of electronic throttle controls in popular Toyota models; incidents in which pedal misapplication is not plausible and pedal interference has not occurred. And yet, it’s The Silver Book, first, last and always.

Moneyball: Lewis writes about the frustration that James and others encountered while trying to get more data from the majors and then the indifference club managers showed to valid performance indicators that didn’t fit their pre-conceived notions:

“The people inside Major League Baseball were, if anything hostile to the people outside Major League Baseball who wished to study the game.”

NHTSAball: There are many who have attempted to get NHTSA to look at vehicle-related safety problems and few have gotten any further than a polite hour or so in a conference room at headquarters. Safety advocate Janette Fennell has enjoyed an almost unparalleled success in advancing safety issues within NHTSA – and none of her accomplishments are the direct result of such meetings.

Fennell, the survivor of a kidnapping in which she was locked in the trunk of her own car, has been the driving force in compelling NHTSA to institute a rule for an emergency trunk release; to count deaths and injuries to children that occur in vehicle-related incidents that occur off the public roadways, such as power windows and backovers; and to begin rulemaking for a rearward visibility standard. Each advance was at the behest of Congress, which passed legislation compelling the agency to collect this information or to promulgate a rule. She recounts some of her earliest attempts to get NHTSA to look at the data she had collected regarding the number of individuals who found themselves locked in a trunk either by a criminal act or by happenstance, and the data about the number of children who were accidentally backed over by caregivers who didn’t see the child, due to the vehicle’s poor rearward visibility. NHTSA just didn’t collect vehicle-related injury and death data if it didn’t occur on a public roadway, she was informed. There was a rulemaking department, data collection department, human factors department, a child passenger safety department – but officials couldn’t easily categorize the safety issues she brought to their attention.

“There was skepticism,” she recalls. “I was politely seen and listened to, but they didn’t do anything about it partly because the data fit everywhere and yet it didn’t neatly fit anywhere. There were all these built in-prejudices and Big Government isn’t going to listen to a mom from Kansas,” she says “It’s a cliché – but it took an act of Congress.”

These are but a few examples. And, we could go on – about NHTSA’s data battles with the rigorous researchers at the Insurance Institute on Highway Safety, how Early Warning Reporting data is serving as an identifier of failed recalls, instead of as an early warning system, how the agency continues to use warranty data as a statistical benchmark for confirming defect trends, even though it is time-limited and is held by the manufacturers, and not subject to scrutiny for its biases.

In Major League Baseball’s case, it took two outliers – Bill James, who re-defined the statistical contours of the game, and Billy Beane, who applied them – to engender a quiet revolution in baseball. As a Wall Street Journal article on the movie points out, statistics aren’t the sum and total of the game. Once Beane’s blueprint for cheap wins was revealed, and other teams began to use it, the A’s lost a competitive advantage. Nonetheless, the bottom fell out of the value of the old metrics, and better metrics took hold. Even if they aren’t plugging the Runs Created formula into every player’s record, there is no doubt that the majors look at their own data differently.

What will it take to start a statistical revolution at NHTSA? Hard to say.

While there is no shortage of knowledgeable outsiders who are conducting valid and valuable statistical auto safety research, we’ve yet to see that brave outlier within the agency who is willing to push against the weight of institutional intransigence to information it doesn’t like until it topples.  It is unlikely that a Michael Lewis-type will come along to turn NHTSA’s statistical deficiencies into a clever non-fiction book. We definitely do not foresee a Hollywood movie in the offing.

NHTSAball, in fact, has very few spectators. And while there can be enormous sums of money at stake –recalls can cost an automaker a lot of money – unlike baseball, bad numbers don’t just lose games. They lose lives.

Researchers Jesseca Taylor and Michael Wogalter asked 83 test subjects to translate tire markings as represented by different date configurations, ranging from the conventional month/day/year (12/05/07) to the DOT code’s four-digit week-year (2205). Effect of Text Format on Determining Tires’ Date of Manufacture, accepted by Annual Proceedings of 55^th Human Factors and Ergonomics Society, found that when consumers chose to translate the different four-digit representations into a month and year, they consistently failed to understand that the first two digits represented the week of manufacture.

The DOT number, an alpha-numeric code found on the tire sidewall, has consistently confused consumers and tire professionals. The last four characters of the 11-character code contain the week and year the tire was made. For example, 0302 signifies that the tire was made during the third week of 2002. (Tires made prior to 2000 used a three-digit date configuration at the end of the DOT code.  In those cases, 039 signifies that the tire was manufactured during the third week of 1999 – or the 1989.)  No participant in Taylor and Wogalter’s study correctly identified examples such as 03/01 or 1102. They confused the first two digits with the month itself, for example, identifying “03” as March, instead of realizing that the third week of the year falls in January.

Taylor and Wogalter concluded:

“The method by which consumers are currently informed of the DOM [Date of Manufacture] of tires needs to be changed. A change is necessary because safety is involved, particularly the tire aging issue. One limiting factor to making the date more apparent and easier to use is that tire manufacturers are currently required to give the DOT number as specified by law. At the same time, manufacturers have a responsibility to ensure that consumers are provided adequate information for safe use of the product.”

Taylor said that one of the most striking observations was that the study participants came to the task ignorant of the DOT code itself.

“They don’t know what the different tire markings are,” Taylor said. “We asked if they ever looked at the DOT number and there were only a few people who said they had ever looked for it.”

Taylor and Wogalter are now working on a second study of consumers’ ability to correctly identify the date of a tire’s manufacture when it is embedded in the whole Tire Identification Number.

These results should surprise no one. Safety Research & Strategies has been studying and monitoring the tire age issue since 2003, and has presented its findings to NHTSA.

SRS pressed the agency to adopt a consumer-friendly date of manufacture for seven years. And the National Highway Traffic Safety Administration has promised to consider the issue, as part of a tire performance standard. As of this writing, it’s still in the making.

The Transportation Recall Enhancement Accountability and Documentation (TREAD) Act of 2000 required NHTSA to improve tire labeling to help consumers identify tires in the event of a recall. In 2004, the agency adopted a Final Rule that required the TIN be molded on the intended outboard side of the tire to give consumers easy physical access to the TIN. Manufacturers also had the option of molding a partial TIN, minus the date code, on the other side of the tire. NHTSA set the compliance date at September 1, 2009, and declined to change the date code to a readily recognized format using the month, day and year.

SRS first petitioned NHTSA to initiate rulemaking to require a non-coded date of manufacture molded into tire sidewalls in November 2004. The petition requested that tire labeling rulemaking be separated from the tire performance standards for expediency. We argued that changing the DOM from the obscure week and year representation to something that was immediately accessible to the average person wouldn’t conflict with other possible tire aging requirements. But, the agency decided to lump this petition into the tire performance rulemaking and indicated it would be considered at some future date.

In the meantime, NHTSA has identified a test protocol that has been generally accepted as a good artificial aging test followed by a roadwheel performance evaluation. And in 2008, the agency mentioned tire age as a hazard in a consumer advisory about tire care in the summer months.

While a performance standard would certainly ensure that tires were more robust, absent a change in the date code, consumers will still be in the dark about the age of their tires. That might please the Rubber Manufacturers Association, which has increasingly become isolated in its view that tire age doesn’t matter. But it won’t help consumers follow the recommendations of most automakers and some of the RMA’s own members to replace tires when they reach six to 10 years of age.

NHTSA might do well to take note of this latest study as it develops its proposal. Without a practical way for the average to consumer to easily read the date of manufacture, much of its excellent research and outreach will be wasted.

Saturday’s 15-passenger van crash that killed six and injured eight members of a Bronx church is a somber reminder that the vehicle remains the only one in the U.S. fleet today that is deadly if used as a 15-passenger van. NHTSA long-ago whiffed on recalling the unstable vehicles, instead relying on manufacturers’ good intentions and consumer warnings, and the preventable carnage continues.

The 1997 Ford Econoline van, loaded with 14 members of the Joy Fellowship Christian Assemblies and their luggage, was on its way to a church event in Schenectady, NY when the left rear tire failed on the New York Thruway. The van rolled over, scattering occupants and suitcases on the median.

The tragedy drew a swift and strong reaction from safety advocates, who have been lobbying NHTSA to impose requirements on 15-passenger vans that would make them more stable. But the agency has stuck close to the path of least resistance, issuing consumer advisories instead of compelling manufacturers to offer more substantive remedies.

“This is a vehicle that by all measures – including NHTSA’s – that has been found as unsafe for its intended purpose and still remains on the road. This is the classic example of having a defect that is too big to recall” said Sean Kane, president of Safety Research & Strategies.

The Tire Did it!

Caught in a public relations squall, Ford turned to its favorite scapegoat: the tire. (Hey, it worked for the Explorer.) A spokesman blamed a badly maintained tire, and said the vehicle was safe when the vans are “properly maintained, driven safely by experienced drivers and when occupants wear their safety belts”  Ford further defended itself by pointing out that it gives its customers “tips” on how to avoid rollovers in the owner’s manual and has placed a warning on the driver-side visor and the rollover risk. Tips! Labels! Awesome! Well, as one former president declared: “Mission Accomplished!”

Statistician Randy Whitfield of Quality Control Systems Corporation, who has been studying the government fatality data involving 15-passenger vans, says that about 15 percent of the fatal rollovers are reportedly linked to a tire failure.

Whitfield’s latest update on 15-passenger van fatalities shows that from “1982 through 2008, there have been 724 fatal rollovers of 15-passenger vans in which an occupant of the van was killed in the United States. These crashes killed 1,153 persons and incapacitatingly injured an additional 1,957. More than six thousand persons have been involved in fatal rollovers as drivers or passengers in the vans, of whom only 305 were known to be uninjured in these crashes.”

Whitfield obtained these figures using data from the 1982-2008 Fatality Analysis Reporting System database and “involved model year 1981-2008 vans manufactured by Ford, Dodge / DaimlerChrysler, and General Motors / Chevrolet.”

With the regularity of swallows returning to Capistrano, NHTSA has been issuing Consumer Advisories warning the public about the dangers of 15-passenger vans every May from 2001 to 2009. This spring, the agency, deluged with announcing Toyota misdeeds and cheerleading distracted driving countermeasures, skipped it.

Its last official press release in 2009 touted a steady decline in the number of deaths in 15-passenger van crashes since they began issuing warnings, but Whitfield says that the decline has not been consistent: “Annual fatalities in 2007 and 2008 were about half of the totals in the peak years of 2000 and 2001. However, the number of persons killed actually increased in 2004, 2007, and 2008 compared with the previous years. 39% of all of the 15-passenger van rollover fatalities since 1982 (454 of 1,153) occurred after the first Consumer Advisory was issued by NHTSA in 2001.”

“Despite these many advisories, the vans have continued to roll over in fatal crashes,” Whitfield says.

In 2005, NHTSA hung its own “Mission Accomplished” banner. Using a smaller subset of the same data, it announced: “the public is responding to safety information about 15-passenger vans. Fatalities from 15-passenger van rollover crashes have declined 35 percent since advisories began in 2001.” If that’s true, the agency has yet to publish any study linking changes in consumer behavior to the 15-passenger van rollover rate.

Its latest Research Note, Fatalities to Occupants of 15-Passenger Vans, 2003-2007, published in May 2009, the agency pointed to actual regulations that may contribute to a future decline in the fatal rollover rate for 15-passenger vans – new standards requiring electronic stability control and tire pressure monitoring systems, and amendments to existing standards, requiring improvements to tires, rear sear shoulder lap belts, and door locks.

Manufacturers – no doubt driven by bad press and litigation – began to make some of changes ahead of mandatory phase-ins.  The first GM 15-passenger vans with ESC came out in model year 2004, and became standard in 2005. Ford – the self-proclaimed safety leader –trailed, equipping its 15-passenger vans with ESC in model year 2006. Rear-seat shoulder-lap belts were not implemented on Ford vans until 2008. GM installed them in 2004. In model year 2007, Ford and GM began adding advanced air bags.

But, what to do about all of those older 15-passenger vans, still regularly pressed into service? According to NHTSA, as of July 1, 2007 the there were about 564,000 15-passenger vans registered in the US, and only 7 percent of the fleet was 2004 or newer.

The members of the Joy Fellowship Christian Assemblies were in a 1997 Ford Econoline, without electronic stability control or advanced airbags. Hell, a 1997 Ford Econoline only had lap belts in all of the inboard rear positions.

Guess for those folks warnings and tips will just have to do.

By 1999, there had been two recalls and one Product Service Bulletin to replace G159 tires on RVs, but the recalls blamed inadequate load margin and customer misuse, and did not identify the tire design itself as defective. In fact, Goodyear has consistently assured the public that the tires are safe for all uses.

That claim was officially refuted on Friday afternoon in a Pasco County, Florida Circuit Court, when the jury in Schalmo v. Goodyear handed the tiremaker 5.6 million reasons to stop insisting that a G159 was okay to install on an RV.  The jury found that the Goodyear Tire & Rubber Company had sold a defective tire marketed to recreational motor home manufacturers, even though the tire was not suitable for RV use.

Christopher Roberts and Hugh Smith of Smith, Fuller and Roberts, P.A., a Tampa Bay firm specializing in tire litigation, represented the plaintiffs. The $5.6 million award represents one of the largest verdicts in Pasco County.

A failed Goodyear G159 was the cause of an August 11, 2004 crash that seriously injured the driver and two occupants. The tire was original equipment on a 2000 American Tradition motor home owned by John Schalmo of Port Richey, Florida. Schalmo was heading westbound on State Road 8 in Chipley, when the right-front tire of his motor home suffered a catastrophic tread separation. Schalmo lost control of the RV and veered off the right side of the roadway, heading out of control across an exit ramp and into a line of trees. Schalmo, and his wife’s parents William and Ruth McClintock, were seriously injured.  William McClintock lost both legs as a result of the crash; he died of unrelated causes two years before the trial.

This was the first G159 tire case to be resolved in a public trial. Goodyear has quietly settled as many as a dozen G159 tread separation cases involving serious injuries and deaths, in exchange for confidentiality. The Schalmo and McClintock families refused to agree to a confidential settlement, and have expressed their hope that Goodyear will recall the tire.

At trial, Roberts and Smith presented Goodyear documents including internal heat and speed testing and failure rate data that Roberts and Smith argued showed that Goodyear knew the G159 was improperly approved for 75 mph continuous highway use. Excessive heat in a tire will break down its internal components over time, and is a leading cause of tread belt detachment failures, as typified by the Schalmo crash

In a 2006 Fleet Owner magazine feature, a Goodyear marketing communications manager acknowledged that the G159 was a truck tire that had not been developed for RVs. That same year, Goodyear stopped selling the G159 and replaced it with a more robust tire specifically designed for motor home use.  But Goodyear has never recalled the all of the G159 tires already sold, and tens of thousands or perhaps more remain in the field.

Circuit Court Judge Stanley Mills has given Goodyear 45 days to present arguments for sealing the confidential Goodyear materials shown to the jury. Continued confidentiality is unlikely under the Florida Sunshine in Litigation Act, which prohibits a court from sealing corporate documents that would conceal a public hazard.

More on Goodyear G159: Goodyear Destroys Testimony Admitting RV Tire is Defective

And this would be somewhat true. In 2005 NHTSA did contract J.D. Walter and Alan Gent of the University of Akron to act as assembling editors for a low-budget update of the 1981 edition of the Mechanics of Pneumatic Tires. With a total project cost of $89,575, Walter and Gent recruited top-level executives in the tire industry – including the good folks at Cooper Tire—to serve as authors and members of the editorial board.  The work was to have been thoroughly vetted at the agency, but according to several sources, NHTSA passed a very light hand over the project and the final version consisted of a wholesale borrowing from the original, complete with decades old data, with some new chapters added to reflect technological advances.

The book was offered for sale in 2006 and although this was a NHTSA project, you couldn’t get it from the agency. A Google search of The Pneumatic Tire would direct customers, via numerous links to the version sold by the American Chemical Society’s Rubber Division, based at the University of Akron, where the public can download the book for 10 bucks. The government, through the National Technical Information Service, also sells a download – for $55. (This rather over-priced vendor is MIA in a casual search.)

But maybe the ACS Rubber Division’s version of The Pneumatic Tire was so much cheaper because it was missing a page. That would be the one after the title page that bears a disclaimer separating the views expressed in the book from those of the agency:

“This publication is distributed by the U.S. Department of Transportation, National Highway Traffic Safety Administration, in the interest of information exchange. The opinions, findings and conclusions expressed in this publication are those of the author(s) and not necessarily those of the Department of Transportation or the National Highway Traffic Safety Administration. The United States Government assumes no liability for its content or use thereof if trade or manufacturer’s names or products are mentioned, it is because they are considered essential to the object of the publication and should not be construed as an endorsement. The United States Government does not endorse products or manufacturers.”

Safety Research & Strategies has questioned why any private group is charging to disseminate a taxpayer-funded report. And SRS has contacted NHTSA’s Chief Counsel  urging them to compel the ACS to put the disclaimer back in. (SRS Letter to NHTSA)

While NHTSA contemplates correcting this key omission, SRS, as a service to our loyal readers, is making the complete version available. So, hurry! While supplies last! The one; the only; the original: The Pneumatic Tire! To receive your e-free copy of DOT HS DOT HS 810 561, click here.

For ACS’ version of The Pneumatic Tire click here.

In the former case, the RMA helped craft a tire fuel efficiency testing and grading and a consumer education provision in the Energy Bill of 2007. Smith was underwhelmed by the RMA’s role in a measure he called unnecessary and unfounded on any science.

Then Smith shakes Sean Kane in the association’s face on tire age, but even Kane “pounding the industry about old tires going bad,” barely rouses it. Despite, “countless lawsuits…alleging that older tires – six years or more in chronological age – failed and maimed or killed people; despite “Kane-led” attacks, bad press, proposed state laws, the RMA has only managed to burp out one squishy statement questioning the science behind tire age. Retailers are left to control the damage over the store counter.

Well, Mr. Smith, SRS knows a challenge when we hear one.

Read Smith’s Editorial in Tire Review

“Tires deteriorate with age, even if they have never or seldom been used. As tires age they are more prone to sudden failure that can cause a vehicle to crash. This applies also to the spare tire and tires that are stored for future use. Heat caused by hot climates or frequent high loading conditions can accelerate the aging process. Most vehicle manufacturers recommend that tires be replaced after six years, regardless of the remaining tread depth.”

Dealers would be required to retain those sales records for three years. The penalty for violating the law is $250.

“The assembly vote is a significant step in bringing important information to consumers and tire dealers” Kane said. “The bill provides tire buyers with critical information based on tire and vehicle manufacturer’s recommendations.  Contrary to the protests by the Rubber Manufacturers Association, informing consumers does not burden retailers. It does compel them to play an appropriate role in educating the public about all aspects of tire safety.”

The measure now moves to the California state senate.

While it wasn’t as good as a rant as one from the Tire Industry Associations’ Roy Littlefield, the immediate response from the tiremakers trade group wasn’t far off (RMA Press Release). Dan Zielinski, RMA senior vice president of public affairs, panted about the bill’s proponents using “fear-mongering to allege that tires reaching a certain chronological age are dangerous.”

Then they trotted out the old war horses that have won them many a regulatory reprieve in the past – helping consumers “burdens” tire retailers and “the allegations that there is a correlation between tire performance and chronological tire age are unfounded and unsupported by data.”

To repeat ourselves: industry scientists have been studying age degradation in rubber since the 1930s.  German studies established the link between tire age and tire failure, leading automakers, as early as 1990, to add warnings to their owner’s manuals that indicated tires older than six years should only be used in an emergency and replaced as soon as possible.  In 2001, the British Rubber Manufacturers Association (a trade organization that consisted of all major tire companies) devised this recommended practice on tire aging: “BRMA members strongly recommend that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.”

More recently, studies from Ford Motor Company examined the material science behind tire aging and evaluated thermo-oxidative aging and its effects on radial tires.  This work led to the development of tire age test methods, published in peer-reviewed scientific journals, and the company’s recommendation that tires older than 6-years presented a greater risk for failure and shouldn’t be used.  NHTSA also tested and analyzed field-aged and artificially aged tires, as did the American Society of Testing and Materials (ASTM) working group and their findings validate Ford’s testing.

Of course, no consumer victory would be complete without an appearance by industry’s favorite boogeyman. Take it away Dan:

“AB 496 would only benefit trial lawyers by creating a new roadmap to sue California tire dealers,” Zielinski said.

Actually it would seem that disclosure would reduce tire dealers potential liability in a tire age case if they follow the law.

But, the RMA got two things right. The version that went to the assembly floor exempted auto dealers from the tire age disclosure requirements – a regrettable omission. As Zielinski points out “Any consumer who buys tires or a vehicle in a private transaction, or who buys a new or used vehicle from a dealer or who buys replacement tires from an auto dealer would not receive a notification under this proposal.” But legislation is a series of compromises and getting tire dealers who are selling the lion’s share of tires in California to provide information to consumers will have a significant effect in addressing this problem.

The second thing?

“Providing a simple, understandable notification to consumers about a tire’s date of manufacture is reasonable,” Zielinski said.

We couldn’t have said it better.