December 17, 2014
National Highway Traffic Safety Administration Chief Counsel O. Kevin Vincent’s message to the defense bar a few months ago at a legal conference was pretty clear – keep us in the loop, or risk the consequences. NHTSA’s message to the plaintiffs’ bar has been more like radio silence, so it will be interesting to see what the Recall Management Division does with a request to investigate the failure of a tire distributor to recall a defective Chinese tire already recalled by a different distributor, marketing the same tire under a different brand name.
Michael Cowen, of the Cowen Law Group in Brownsville, Texas wrote to the agency today asking for an Equipment Query regarding Hercules A/T radial tires sold by the Hercules Rubber & Tire Company.
Cowen represents Krystal Cantu, 25, who lost half of her right arm in an August 2, 2013 crash caused by a catastrophic tread separation. Cantu was a front-seat, belted passenger in a 2004 Ford Explorer Sport Trac, when the left-rear tire – a Capitol Precision Trac II – failed as the vehicle traveled southbound on Interstate 37 in Atascosa County, Texas. The driver lost control when the vehicle skidded; Ms. Cantu’s right arm was crushed in the subsequent rollover.
ITG Voma cited this crash in its October Part 573 Notice of Defect and Noncompliance to recall 94,890 Capitol Precision Trac II tires manufactured between December 2008 and May 2010. The defective tires, actually manufactured by Shandong Yongsheng Rubber Co., Ltd., lacked a nylon cap ply, which made the tires less robust and prone to tread separations.
“Selling essentially the same tire and under a different brand that isn’t covered under the recall needs to be thoroughly investigated by NHTSA. Our request and the information submitted to the agency should assist them in obtaining a complete accounting of all the tires that need to be taken off the roads” Cowen said in a press release.
On April 2, 2014, Cantu filed a lawsuit against Voma and the Shandong Yongsheng Rubber Co., Ltd., among other defendants. During the discovery phase of the case, a manufacturer’s representative revealed that the Capitol Precision Trac II shared a common green tire designation with another tire branded as the Hercules Radial A/T in eight different sizes. NHTSA defines a common green tire as “tires that are produced to the same internal specifications but that have, or may have, different external characteristics and may be sold under different tire line names.” This means that the Hercules A/T and Capitol tires are essentially the same.
Under federal recall regulations, the company that brands the tire is considered the manufacturer, and is responsible for reporting defects to NHTSA and launching a recall. In a December 17 letter, Cowen asked the agency to open a defect investigation called an Equipment Query to pursue the Hercules Rubber & Tire Company, a marketer of replacement tires, headquartered in Findlay, Ohio and a partner of the Cooper Rubber & Tire Company, to launch a recall.
In 2007, Foreign Tire Sales (FTS), a tire importer based Union, New Jersey launched a recall after discovering that tires manufactured by the Hangzhou Zhongce Rubber Co. Ltd for FTS had been built without or with inadequate .6mm c-shaped gum strips used to prevent the separation of belts. The recall followed a legal claim alleging that a catastrophic tread separation of a Telluride 245175R16 tire manufactured by Hangzhou and sold by FTS caused a fatal rollover crash. FTS had claimed to NHTSA that Hangzhou sold similar tires via other importers. The agency’s Recall Management Division responded by sending letters to 17 tire importers/distributors of Hangzhou tires.
The EQ was eventually closed with no further action – all 17 distributors claimed that they had none of the defective tires.
“This underscores the important role litigation plays in identifying safety defects” says SRS President Sean Kane. “It will be interesting to see how many of these defective tires actually come out of service in this campaign given the failed recall system.”
The weaknesses of the current tire recall system were among the topics discussed at length last week at a tire safety symposium hosted by the National Transportation Safety Board. The NTSB held the meeting in advance of a tire safety report and formal recommendations, expected to be issued next year.