Civil Litigator, Consumer Champion Heiskell Dies

Former West Virginia Secretary of State and well-known plaintiffs’ attorney Edgar “Hike” Heiskell III died yesterday after a brief battle with cancer. He was 76 years old.

A true Renaissance man, Heiskell succeeded in politics and the law. His interests ranged from cooking to writing to an enduring love for pre-GM Swedish Saabs. A graduate of the University of West Virginia and the University of Virginia School of Law, Heiskell also served as a fighter pilot for the U.S. Air Force and Air National Guard.  From 1973-1975, he served as Secretary of State, and as the Republican State Chair from 1987 to 1990.

In legal circles, Heiskell was known as a skilled attorney willing to take on difficult defect cases, win significant settlements and verdicts, and push the National Highway Traffic Safety Administration to take action. Ryan Heiskell, also an attorney, said of his father: "He was a hero and champion for injured victims of dangerous auto defects. He literally devoted his career to helping and never backed down from a fight."

In the late 1980s and early 1990s, Heiskell tackled the stability defects in the Ford Bronco II. The compact, two-door Sport Utility Vehicle had one of the worst rollover records among the iterations of the SUV – the Insurance Institute on Highway Safety found that its rollover rate was several times its peers, one in 500 Broncos produced involved in a fatal rollover crash, and Geico stopped writing insurance policies for the vehicle.

NHTSA investigated the defect in 1989, but closed the investigation after an analysis of crash data showed that its rollover rate was comparable to other SUVs. Heiskell’s litigation work uncovered pre-production tests never disclosed to the agency, showing that the Bronco II could rollover at speeds as low as 25 mph in foreseeable accident-avoidance or lane change maneuvers. This discovery led Heiskell in 1996 to petition NHTSA to re-open the investigation and sanction Ford for failing to submit these documents in response to NHTSA’s requests for information.

The agency declined to do either. However, NHTSA issued a rare letter of admonishment to Ford. The agency expressed surprise that Ford Automotive Safety Office officials Robert B. Munson and Wayne Kippola admitted in depositions that the company only submitted materials relevant to production vehicles, despite the plain meaning of the agency’s request to supply all relevant documents. In a May 1998 letter to Ford, the agency wrote:

"We have recently requested that Ford construe ODI’ information requests according to their “plain-meaning,” and that, when a request calls for the submission of “all documents” without qualification, Ford supply all relevant documents, likewise without  qualification. If this includes information related to pre-production vehicles that, in Ford's view, differed significantly from the eventual production version of the vehicle, Ford may seek to limit the scope of the request by explaining the differences between the pre-production and the production vehicles and setting forth reasons why the information related to pre-production vehicles would not be relevant to ODI’s investigation and thus should not be required to be submitted."

"His work on unintended acceleration was also legendary,” says SRS president Sean Kane, who worked with Heiskell on many safety issues. “Those types of issues are notoriously difficult and often don’t end in good results for clients. But, Hike broke through the driver error blame game that companies foisted on victims and identified key vehicle defects. He was able to get verdicts in unintended acceleration cases — a rare feat — and he developed a lot of important markers in the playbook on how to deal with these complex cases. At the root of it, he was a caring person who used his skills to help people who often had nowhere else to turn.” 

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:

“His accomplishments included safety recalls of tens of millions of vehicles that saved untold thousands of lives, and lemon laws in all 50 states.  Since the center was founded in 1970, the death rate on America’s roads has dropped dramatically, from 5.2 per 100 million vehicle miles traveled in 1969 to 1.1 per 100 million vehicle miles in 2010. Ralph Nader and Consumers Union established the Center to provide consumers a voice for auto safety and quality in Washington and to help owners of “lemon” vehicles fight back across the country.

Under Mr. Ditlow, the Center played a major role in these recalls, among others: 6.7 million Chevrolets for defective engine mounts, 15 million Firestone 500 tires, 1.5 million Ford Pintos for exploding gas tanks, and 3 million Evenflo child seats for defective latches.”

Ditlow became the Executive Director of the Center for Auto Safety in 1976, and for 40 years, he was its public face and a mentor to others. Sean Kane, president of Safety Research & Strategies, got his start as a safety advocate in the early 1990s working with Ditlow on defect issues. His sweet spot, says Kane, was tackling widespread design defects – such as the rollover propensity of SUVs – in vehicles that met existing motor vehicle safety standards, but caused significant harm in real-world incidents.

“One of the things that stands out about Clarence was his willingness to take on those defects that exposed outdated or ineffective safety standards. In many instances it was clear that fixing the design flaw via a recall was unlikely, but Clarence’s advocacy advanced important issues that ultimately resulted in upgraded standards” Kane said. “For example, the SUV rollover crisis – this was a huge problem that ended up on the enforcement side of NHTSA that should have been addressed through regulation before the controversy emerged in the 1990s. One of his most significant contributions was showing the cracks in the regulatory system through these defect issues.”

Kane says that Ditlow’s legacy also includes his focus on government transparency.

“He fought vigorously for access to NHTSA documents and manufacturers records submitted to the agency” Kane added.

The Safety Record Blog turned to Ditlow for stories on defect issues that CAS championed. Today, we share three of those stories

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

Jeep Fire Advocacy Heats up While Investigation Stalls

Caught in the Motor Vehicle Safety Act

SRS Welcomes New Team Members

Safety Research & Strategies is pleased to welcome automotive diagnostics expert Neil Black and Research Librarian Erica Little to our multidisciplinary research team.

A 2012 graduate of Southern Illinois University in Carbondale, Illinois with a B.S. in automotive technology, Black specializes in electronic circuitry failure analysis.

“Understanding how circuits are designed to work is paramount to understanding how they can fail,” Black says. “As we create more computer-based automotive systems, the types of problems that exist in electricity – voltage drops, high heat, electrical shorts – can wreak havoc on a system. Each one can manifest a different problem, yet the systems are evolving faster than the understanding of automotive techs, the regulators – even some manufacturers.”

As an associate instructor of automotive electronics, Black trained with Dr. David Gilbert, an associate professor of automotive technology who has trained automotive technicians in automotive electronics for 30 years, and has been hired by automakers, such as Honda to develop technical teaching materials for their vehicle electronics instructors. Black is the author of Diagnosing Relayed Circuits for Undercar Digest, which is pending publication

In addition, Black has two years of hands-on experience, working as an auto technician for a Honda and a GM dealership, as well as an independent facility, where he repaired all makes and models. He is a member of the Society of Automotive Engineers and is ASE Certified in a wide variety of topics: engine systems, manual transmissions, suspension and steering, brakes, electrical systems heating and air-conditioning, powertrain electronics, and auto maintenance and repair

Black also holds a graduate degree in education, and was named SIU’s College of Applied Science and Arts Term Teacher of the Year in the 2015-2016 academic year.

Erica Little melds a strong science background with her research skills, currently being honed in the master’s degree program at Simmons Colleges’ Library and Information Science program. She earned her B.A. from College of the Holy Cross.

Before joining SRS, Little worked for Technic Inc., a Rhode Island-based products testing company, as a quality control lab supervisor. Her duties included performing analytical testing on products, writing product test and training procedures and communicating regulatory information to customers and to in-house staff.

Little says that her previous work with ISO certifications and researching federal regulations has augmented her work at SRS.

“A lot of the principles are the same. This has been a change for me, but I really like learning about technology and I like being part of a company that impacts society,” she says.

SRS Welcomes Automotive Electronics Diagnostic Expert Aaron Beltram

Safety Research & Strategies, a product safety research and consulting firm with a specialty in automotive defects, has added automotive electronics diagnostic expert Aaron Beltram to its interdisciplinary team.

Beltram is an experienced automotive technician, working for six years in Chrysler dealerships. In his last job, Beltram mentored the entry-level technicians, and was the service department’s key technician for high-level electrical issues and transmission service, diagnosis, repair, and overhauls. He also holds Automotive Service Excellence certifications in eight areas and is a Chrysler Master Certified Technician.

Beltram is also a graduate of the New England Institute of Technology, earning an Associate’s degree in Advanced Automotive Technology in 2008, and a Bachelor of Science in Business Management in March of 2015. His studies included courses in Advanced Electricity and Electronics, Advanced Engines and Engine Computer Control Systems

“The Toyota Unintended Acceleration crisis really underscored the need for detailed understanding of vehicle diagnostics,” says SRS president Sean Kane. “It is increasingly important to understand problems at the diagnostic level in order to guide investigations into the myriad of complex problems that are creating defects in today’s vehicles.”  

The GM ignition switch defect that resulted in loss of control and airbag non-deployments in Chevy Cobalts similarly required a better understanding of the vehicle electronics and diagnostics.  Hundreds of individuals were killed and injured in crashes in which the ignition would slip out of the Run position, turning off the power steering, the brakes, and disabling the air bag. A NHTSA Special Crash Team and a Wisconsin state trooper were able to put a 2006 GM Technical Service Bulletin regarding inadvertent turning of key system together with the circumstances of a fatal Wisconsin crash to identify the root cause, but neither the agency nor GM took note of their conclusions. The defect continued to harm vehicle occupants for another seven years.

“It’s critical in the early stages of determining the cause of a crash to have a thorough understanding of the vehicle system and diagnostics to challenge assumptions about the way a system is supposed to work,” Kane says. “With today’s vehicles rapidly becoming computers on wheels, knowledge of automotive electronics is a must. We are confident that Aaron’s experience and education will help us better serve our clients.”  

Beltram’s technical experience rounds out the SRS team skill-set, which includes professionals with backgrounds in engineering, injury biomechanics, library science, law, journalism, and advocacy.

 

The Safety World Loses Two Respected Advocates

This month has been a sad one for safety advocates with the passing of two well-respected and pioneering engineers, who also happened to be friends and colleagues: Donald L. Friedman and Steven M. Forrest. Both were born in the Northeast, but made their homes in the Santa Barbara area; both were affiliated with General Motors.

Friedman died peacefully on July 16 just after his 88th birthday. Forrest, 59, died of injuries sustained in a motorcycle crash on July 19. Their deaths cap long and distinguished careers in advancing the causes of crashworthiness and occupant safety.

“Both of these gentleman will be sorely missed,” said Donald Slavik, of Robinson, Calcagnie, Robinson, Shapiro and Davis, who knew and worked with both men. “Don Friedman was a pioneer in the area of automotive safety.  His work has saved countless lives and prevented innumerable serious injuries that would have otherwise occurred in motor vehicle wrecks.  He demonstrated the fallacy of "diving" causing serious injuries in rollovers independent of roof crush by doing inverted drop tests on himself.  He was relentless in pushing for improvements and the acknowledgement of defects up until his death.  He recently filed a defect petition with NHTSA on the airbag sensing system and algorithms in GM cars. Steve Forrest was similarly a passionate seeker of the truth with respect to automotive design.  He was the go-to engineer on the subject of adequate and safe vehicle roof design.  He was a protege of Don Friedman, and a great expert witness.  Well prepared, proficient, and efficient.  He could communicate complex information to jurors with honesty and sincerity.”

Their obituaries detail a much compressed list of accomplishments: 

Friedman “as principal or with a team, designed, developed and produced: the periscope system for the Nautilus, the first nuclear submarine; a high-performance electric drive; the infrared seeker and guidance control for the Sidewinder missile, which was the first airplane-mounted missile able to track a target and shoot it down and instrumental weaponry in the Korean war; the 3 Lunar Rovers that landed on the moon, unfolded their wheels and traversed the lunar surface; the Minicars Transit and Car Rental System; experimental, research, large and electronic research safety vehicles; a dynamic dummy-occupied full-scale vehicle rollover crash test fixture (JRS) and quasi-static full-scale vehicle roof strength test fixture (M216); the HALO rollover protective systems for light truck vehicles used in, for example, the mining industry; and proofs of electronic drive-by-wire system algorithm defects.”

In addition, he authored “more than 150 technical papers and 7 patents, and testified before Congress on numerous occasions. He is responsible in part for more strict government vehicle safety standards. In his last 30 years, Don testified in more than 1000 personal injury and product liability cases; he helped win landmark cases against major vehicle manufacturers that forced recalls and safety improvements.

Friedman was the founder and principal of Xperts, a consulting firm. He also founded the Center for Injury Research (CfIR), “a non-profit foundation dedicated to improving vehicle crashworthiness and occupant safety, and crash-tested more than 50 vehicles.”

Well past the time that many retire, Friedman was still going to the office.

“He was working 40 hours a week,” said his son Keith Friedman. “That was his definition of retiring. And he brought a lot of people into the field to distribute the knowledge of occupant protection in general. Steve was one of those.”

Forrest “graduated from General Motors Institute as a Mechanical Engineer in 1979 and started his professional career as an engineer at Mini Cars Incorporated in Goleta, CA, which evolved to become Liability Research. With his partner, Steve Meyer, Steve created an automotive safety firm, Safety Analysis and Forensic Engineering, known as SAFE, in 1997. He became a highly respected expert witness in the field of automotive safety, testifying in automotive injury related trials. He wrote many technical papers on automotive safety and, through his work, he has influenced numerous changes in the automotive industry making vehicles safer for millions of drivers.”

“The world of auto safety advocates is small.  Independent ones, outside of government and industry, are even rarer,” said Sean Kane, president of Safety Research & Strategies “Their deaths are a major loss.”

 

The Safety Record Blog’s Top Ten in 2014

1. GM Ignition Switches, the Big Opener for 2014

Who knew on Jan. 1 that just a few weeks later, we’d be watching one of the biggest safety defect scandals unfold when the world learned that GM had been sitting hiding an ignition-switch defect it had known about since before the vehicles went on the market. (Of course, Takata followed soon after – more on that later.) Obviously, GM is ultimately to blame for the hundreds of deaths and injuries that followed. But The Safety Record thinks NHTSA is the real star of the show. If 2014 was the Year of the Recall, it was also the Year NHTSA’s Epic Failures Were Exposed. And what better way to mark the momentous occasion – or, actually, repeated occasion because we’ve been here before – than to highlight its new level of ridiculousness after the GM tragedies came to light? Rather than own up to seven years of ignoring the ignition switch defect, NHTSA’s spin machine went into overdrive in its rush to blame GM for not reporting and providing information. Acting Administrator Friedman even went before Congress to plead agency ignorance. Nevermind that by 2007, the Office of Defects Investigation had two Special Crash Investigations in fatal incidents that tied the airbag non-deployment to a 2005 GM Technical Service Bulletin telling dealers that ignition switches could unexpected shift, shutting down the engine. Or that in 2007, NHTSA’s Defects Assessment Division recommended that the agency conduct an immediate investigation into “a pattern of non-deployments,” citing 15 consumer complaints and 28 field reports where the airbag didn’t deploy in frontal crashes, resulting in 27 injuries and four fatalities – the investigation never happened. Or that it ignored at least one other Special Crash Investigation that noted a 2009 Cobalt was in the “accessory” mode when a fatal collision occurred, in part because NHTSA staff didn’t understand how newer airbags worked. Or that some NHTSA staff were concerned enough to monitor Cobalt crashes and recommend investigations until 2011 – when the agency suddenly forgot all about GM, allowing more injuries and deaths to pile up.

 

2. We Don’t Need No Stinkin’ EWR

The Safety Record was less than shocked that Honda failed to report half its death and injury claims. In February 2013, we noted two manufacturers – Tireco and Harmony, a child-seat manufacturer – had not filed EWRs in three serious injuries in litigation. SRS asked NHTSA for its EWR policies and the agency’s follow-up with those manufacturers. We eventually had to sue NHTSA to find out that they pursued Harmony to file a quarterly report, but had no record of doing anything with Tireco. Tireco has never filed an EWR claim; Harmony filed that one quarter and never again. The only policy document we received was a draft with page 6 missing. (see EWR – Elective Warning Reports) This year, U.S. Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) sought more information from NHTSA about its use of EWR data. Acting Director David Friedman gave them some jive about how thoroughly the data is assessed and how the agency keeps track of manufacturers’ reports, sophisticated mining techniques, stern letters, civil fines, “as appropriate,” blah, blah. But the good Senators noted that Ferrari had never submitted a report since 2003. We noticed that Mercedes has rarely filed a property damage EWR – 17 in a decade –  and what reports they were filing indicated that their seats were burning people’s tushies. Ferrari eventually got fined $3.5 million for embarrassing NHTSA. The Safety Record Blog doesn’t pack the same punch as Congress, so Mercedes escaped the hot seat, as it were.  We think that NHTSA’s Chief Counsel responded more honestly, when he told a bunch of defense lawyers at a legal conference: “Frankly [EWR]’s not early and it’s sometimes really not a great warning, because you have to dig down into the data.” (Analyses conducted by Quality Control Systems Corp. have shown that EWR is functioning more as a finder of failed recalls. Yet, in its last rulemaking, NHTSA chose to add some more very broad categories related to emerging technologies, instead of adding component sub-categories that would make it much easier for the agency to spot defects causing some of the most common safety malfunctions.) Sens. Markey and Blumenthal have submitted an EWR improvement bill, but will it have any life in an all-Republican congress? So, NHTSA, manufacturers, as you were!

 

3. NTHSA’s Data Drivel

As we all know, NHTSA is data-driven. And the agency would have you believe that every action it takes is forged in the hot steel of numbers. In fact, “data-driven” is just one of the agency’s autonomic responses to reporters and Congress in the face of safety crises and budget requests. Most NHTSA-watchers know that the agency has but a slight acquaintance with statistical analysis, but have found that the phrase forms the basis of an excellent drinking game. This year closed with a few good examples. In mid-December, our friends at Quality Control System Corp. laid waste to NHTSA’s oft-repeated factoid that light vehicle tires are performing better than ever, sporting a 50 percent reduction in fatalities using crash data from 2007-2010. Randy Whitfield presented his examination of Fatality Analysis Reporting System data at the NTSB’s tire safety symposium, finding that the number of tire-related crashes and resulting deaths has remained relatively constant since 1995, and that the study on which NHTSA relied to excuse itself from tire safety rulemaking only included a small sample of crashes involving light passenger vehicles towed for tire-related damage, rather than evaluating all tire-related crashes. (While NHTSA reluctantly conceded the point, it was too late to change its Powerpoint presentation, so the agency repeated its cherry-picked conclusion later in the day.) And The Safety Record Blog got a good chuckle out of a November quote from David Friedman, the agency’s star-crossed Acting Director, in response to Takata’s reluctance to mount a national recall for its exploding airbags: “One can be an anomaly. Two becomes a trend, and we feel we need to act.” For all of you who have been dying to know the Office of Defects Investigation’s super-secret issue-screening benchmarks, cat’s outta the bag now.

 

4. Good Layers/Bad Lawyers

It is a fact: corporate lawyers are noble defenders of American business. They are decent fellows and good gals, whose word’s an unbreakable bond. The kind of people you can feel at home passing your resume while sharing a cocktail or an automotive defect assessment. By contrast, trial lawyers fatten themselves on the souls of innocents. They are responsible for all of society’s ills, from childhood obesity to the Ebola virus. They cannot be trusted. Nor do upstanding government bureaucrats associate with these misshapen lumps of humanity’s dregs. At least, that’s what The Safety Record has taken away from the agency’s behavior toward lawyers in 2014. It was trial lawyers who showed how Toyota’s unbelievably crappy software could cause an Unintended Acceleration without the engine control module taking note. Has NHTSA done anything with this startling information, given the continued evidence of Toyota UA? Not that we can tell. It was a trial lawyer who revealed the General Motors knew about the now infamous ignition defect for years, before it released the afflicted vehicles into the marketplace and before the automaker announced a limited recall. Marietta, Ga. lawyer Lance Cooper, who represented Brooke Melton, a fatal victim of the defect, alerted NHTSA in February to GM’s shenanigans, and offered to share the fruits of his discovery. NHTSA responded by completely ignoring him. Couldn’t even muster a thanks-for-your-letter-we’ll-look-into-it response. Straight-up rude. Corporate lawyers? They got a presentation at a legal conference for the defense bar in Chicago by NHTSA Chief Counsel O. Kevin Vincent. It started with a feel-good “rah-rah-ree” paean to industry, before Vincent gave his audience the requisite 10 seconds to pick their jaws off the ground after he warned them that NHTSA would no longer tolerate automakers’ dissembling on defects and delaying recalls.  Nothing but the Marquess of Queensbury rules for those guys.

 

5. Toyota UA Now, Toyota UA Tomorrow, Toyota UA Forever

With the spotlight now chasing Takata and GM, one might be forgiven for laboring under the false impression that the Toyota Unintended Acceleration problem had been resolved with floor mats, shaved pedals and the aggressive mis-direction from the automaker’s PR flacks. After all, in March Toyota paid the federal government $1.3 billion to resolve criminal fraud charges, promising to lie no more, under the watchful eye of an Independent Monitor. And Toyota, its corporate voice trembling with remorse and sincerity, declared this unfortunate chapter closed. Toyota owners, however, can’t make the same claim. Toyota UA complaints continue to accrue. Safety Research & Strategies continues to field calls from Toyota drivers experiencing UAs. Take the experience of Robert and Kathy Ruginis of Bristol, RI. In June, Kathy Ruginis was attempting to park her 2010 Toyota Corolla on a town street when the vehicle surged forward and crashed into an unoccupied parked Jeep in front of it. Kathy’s foot was on the brake at the time. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually at higher speeds – since the couple bought the vehicle new in May 2010. The inspection included a 16-mile test drive, a visual inspection and a download of the Event Data Recorder, which confirmed the account of Kathy Ruginis and her passenger: the Corolla was surging while her foot was on the brake. It showed in the five seconds of vehicle data before the system made the decision on whether to deploy the airbag: accelerator pedal untouched, brake pedal on, speed and RPMs doubled.  In denying the Ruginis claim, Toyota only considered the results of the “test” drive and the physical inspection: “Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.” The Ruginises took their complaint to NHTSA and the Independent Monitor David Kelley, requesting that Kelley look into Toyota’s dishonest assessment and the latter into low speed surges in MY 2006-2011 Toyota Corollas, based on 163 reports in which the driver experienced a surge at low speed or no speed – 99 drivers mentioned that the brakes were already depressed when the surge occurred or the surge occurred when the brakes were depressed, and 83 incidents resulted in crashes.  NHTSA’s Office of Defects Investigation is now evaluating the Ruginises’ claims and has taken the car for testing under no protocol that it could show the couple. Two lawyers from Cahill Gordon & Reindel LLP interviewed the Ruginises about their experience with Toyota. Hard to say what will come of these encounters, but if The Safety Record were a betting blog, we’d say: nothing.

 

6. FHWA Mounts Production of Safety Accountability Theater

When the government is trapped between the truth and its actions, CYA wins every time. The thing is: you have to look tough, and it has to be as convincing as Ralphie’s tears after he almost shoots his eye out with a Red Ryder carbine action, 200 shot range model air rifle.  This is trickier than it sounds. You have to go after the manufacturer, but not the defect. This way, you show an appropriate level of outrage without looking like a doofus for not catching and correcting the defect in the first place. The only ones who lose are consumers and we know how much everyone cares about them. For two years, the Federal Highway Administration brushed off questions about the safety and efficacy of Trinity Industries’ ET-Plus Guardrails. Then, a Texas jury found that Trinity defrauded the federal government by failing to disclose key design changes in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the FHWA and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million. Among the evidence at trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests. After the verdict, states started dropping the ET-Plus from their lists of qualified vendors, and the FHWA had to react. But, having defended Trinity and the ET-Plus to state highway officials and the press, not to mention allowing Trinity to submit test results seven years too late that purported to show that the end terminal performed adequately, the reaction couldn’t be too extreme. So it ordered a round of tests that the hardware was likely to pass, but did not mimic the way the end terminal was failing in the field. The FHWA specifically forbade the Texas Transportation Institute, Trinity’s long-time testing and development partner from conducting these new tests. Instead, the agency allowed Trinity to choose the Southwest Research Institute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. That’s how it’s done.

 

7. CPSC Begins Rulemaking on 6B

The U.S. Consumer Product Safety Commission kicked off 2014 with a bold move to publish a Notice of Proposed Rulemaking to reform the irksome Section 6(b) of the Consumer Product Safety Act. This rule gives manufacturers a lot of control over what negative information the CPSC can release about them, such as trade secrets or “misleading” and “inaccurate” information.  The CPSC can disclose the existence of an investigation under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products, and typically the two entities release agreed-upon language. In execution, 6(b) can be cumbersome, time-consuming and costly. The re-notification procedure forces the commission to seek the manufacturer’s approval every time it releases the same information about a product to a different source. The NPRM makes four modifications to the regulatory language, among them: clarifying that Section 6(b) does not apply to information already publicly available or disseminated, and revising the current policy of granting firms an absolute right to have their comments withheld from any information the CPSC releases. One of the biggest changes would affirm that once a firm voluntarily agrees to undertake a corrective action plan, it would be legally bound to fulfill the terms of the agreement. Under the current regulations, the Commission is prohibited from enforcing a corrective action plan if a recalcitrant firm violates the terms of its corrective action plan. The rulemaking also proposes to re-balance the negotiations on the language of a voluntary consent agreement. Currently, the company can make an admission that it violated the Consumer Product Safety Act if it feels like it. The proposal eliminates the phrase ‘‘if desired by the subject firm,’’ and replaces it with the phrase ‘‘if agreed to by all parties.’’ The commission was down to three members when it voted 2-1 to publish the notice. It now has a new chairman and a full complement of four members. The rulemaking has not advanced since the Federal Register Notice of February 26.

 

8. NHTSA Tired of Tires

In March 2002, the agency began a rulemaking to establish new tire performance requirements under a new FMVSS 139 that was to have established requirements and test procedures addressing tire dimensions, endurance, the impact of road hazards, bead unseating, low inflation pressure, and aging. Ten months later, the agency published a final rule on the tire performance requirements, but postponed action on an aging test. In 2005, the agency opened a non-rulemaking tire aging docket, into which it deposited its continuing research into tire age. This May, NHTSA quietly signaled – again – that it was not going to require a tire aging test by posting a March 2014 summary of its tire aging work. The report cited three reasons for its decision, all stemming from the 2003 FMVSS 139 Final Rule, which improved the robustness of tires. The agency cited its erroneous data analysis showing a dramatic drop in tire-related crash fatalities. (See above – NHTSA’s Data Drivel) At the same time, the agency clearly acknowledged that tire age is an undisputed factor in tire safety and that their research data has shown for years that tire aging was a continuing concern particularly in the high heat states. But the agency instead would launch “a promotional and educational initiative to raise consumer awareness about tire aging issues and how to prevent these types of failures.” NHTSA would do nothing to make it easier for consumers to determine the age of their tires, like require a non-coded date of manufacture molded on each sidewall. But that’s the kind of crazy you get when your aim is to look busy without troubling industry. Fortunately, the National Transportation Safety Board is on it. Earlier this month it held a two-day symposium to look at the continuing problems with the tire recall system and tire age, in preparation for making safety recommendations. The Rubber Manufacturers Association was just putting away the champagne glasses from its May celebrations, when it sprang into action. To deflect unwanted attention from the NTSB, it announced that it supported a mandatory registration system that requires retailers to electronically register tires at the point of sale. The Tire Industry Association, which represents the dealers, was not happy. But perhaps the civil war will be postponed. Whatever recommendations the NTSB is likely to make, NHTSA is likely to ignore until Congress forces a rulemaking after a bunch more people die unnecessarily.  

 

9. Vehicle Electronics

In October, NHTSA published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments satisfies a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles.” NHTSA’s only a quarter of a century behind the technology curve, but better late than never. NHTSA said that it intended to determine “whether there are emerging gaps in the functional safety assurance processes of motor vehicles.”  One need only examine the record to demonstrate that there’s nothing but gaps. In 2011, for example, The Safety Record examined 12 months of recalls to determine the prevalence of recalls related to electronic defects. After reviewing 722 recall campaigns, The Safety Record found that electronics recalls comprised more than a quarter; of those, 24 recall campaigns addressed software defects. But NHTSA does not like to stray too far from broken parts – its bailiwick for decades. Two years ago, NHTSA attempted to upgrade the accelerator control standard by proposing that manufacturers be required to equip all vehicles with a brake override, which cuts throttle voltage in electronic throttle control (ETC) vehicles when the brakes and throttle are in conflict. The Notice of Proposed Rulemaking was in direct reaction to the Toyota UA crisis, but the proposal merely codified manufacturers’ current equipment, and noted that it was meant to address unintended accelerations caused by mechanical failures: component disconnections. The proposal to write a functional safety standard for automotive electronics posed a series of questions to the public, among them, queries about the cyber security of automotive electronics, electromagnetic interference with such systems and the possibility of requiring performance tests to ensure the safety of critical systems such as braking, steering and accelerating. The call for comments drew 44 submissions. The Alliance of Automobile Manufacturers agreed with NHTSA that it was unsure about those gaps, and suggested that NHTSA and its "Council on Vehicle Electronics, Vehicle Software and Emerging Technologies" keep studying the question: “These forums may identify potential gaps” – a lot of conditionals in that phrase. As for the need for mandatory standards – no need at all, the AAM said. The current voluntary guide ISO 26262 is enough, thank you very much.  Safety-critical electronic systems “are continually evolving at a rate that outpaces rulemaking.” Even The Safety Record agrees with that – especially since the agency usually takes 25 to 40 years to write new rules. We were certain that Toyota, with its rock-solid automotive electronics, would offer some valuable insights to the agency about functional safety, but the automaker did not submit any comments. Pity.

 

10. Will NHTSA Ever Get a Decent Administrator?

We had such high hopes when President Obama appointed David Strickland to be the agency’s administrator in 2009. A former Democratic Commerce Committee staffer, Strickland got the kid-glove treatment during his confirmation hearings and sailed through the approval process. Strickland had worked for the Senate Commerce, Science and Transportation Committee since 2001, and before that, served the Association of Trial Lawyers of America as the associate director and a lobbyist. Safety and consumer advocates praised his nomination, describing Strickland and a savvy negotiator devoted to consumer protection.  He left to cash-in as a lobbyist for Venable LLP, a “top defense” firm in D.C. that boasts about its ability to help clients clear regulatory hurdles and defend its clients in product liability cases involving asbestos, tobacco, automobiles and industrial chemicals. Who wouldn’t want to defend asbestos and tobacco? The big defect crises under his watch were Toyota UA and Jeep’s rear-of-axle fuel tanks that explode on impact, burning occupants to death in otherwise survivable crashes. Safety advocates gave him an “F” in both; he failed consumers miserably when it counted. Deputy Administrator David J. Friedman – just seven months into his new job – stepped into the breach, and our hopes rose again. Friedman worked for 12 years at the Union of Concerned Scientists (UCS) as a senior engineer and research director. His specialty was fuel economy, but we thought, hey, a scientist – that’s good, right? Friedman was immediately swamped by the next tsunami of defect crises – Takata airbags and GM ignition switches that migrate from the run to accessory position cutting off the engine, power brakes and steering, and the airbags. The agency’s newly appointed administrator is Mark Rosekind, a member of the National Transportation Safety Board and a psychologist with a background in human fatigue. During his confirmation hearings, he declared “my first focus will be on the recall defect and reporting process.”  NHTSA and its “regulatory partners” are never so happy as when they put the onus of drivers instead of defects. We hope Rosekind will shepherd in a new era.

 

11. And, in a nod to Spinal Tap, We’re Up to Eleven… Takata – A Defect Enforcement Mash-up  

If there is a safety defect story of the year, The Safety Record Blog would have to go with Takata’s exploding airbags that spray shrapnel into occupants which we've been writing about since 2013. We like it because it rolls all of NHTSA’s enforcement and surveillance problems into one big ball o’ mud. Since 2008, this single defect has produced 21 recalls, affecting 10 Manufacturers, 53 models and more than 15 million vehicles in the U.S. It has also caused five known deaths and 139 injuries. The cover-ups have provided the media and Congress ample opportunity for contest entries and grandstanding. Behind the numbers, this defect illustrates all the deficiencies of the current system: rolling and regional recalls – manufacturers’ time-worn strategies for limiting their liabilities; five different root cause reasons for the defect – incentive to investigate if we’ve ever seen one – and a Recall Management Division that fumbles enforcement, demanding answers in 2009 after the second recall, but losing interest during the next three. Honda was caught failing to submit an Early Warning Report for one of the Takata airbag deaths, and was forced to admit that it had neglected to file some 1,700 EWR death and injury claims. Bonus points go to BMW, which used the crisis to recall Takata-made passenger-side airbags in 3-Series vehicles when it really was concerned about a design flaw – aggressivity. BMW was asked to recall the vehicles in 2008 by an attorney following a lawsuit in which an aggressively deploying airbag caused eye and facial injuries to an occupant. At a December 3 congressional hearing, BMW admitted that the passenger bags were being replaced for a concern not related to the other inflator recalls.

Why should manufacturers ever change their ways and hurt their bottom line when the agency tasked to police them is out at the donut shop? The Safety Record would like to believe 2014 is the last Year of the Recall, but “fool me once” happened decades ago.

 

 

Is Safety Cheaper?

In a Randian world (think Paul or Ayn), government regulations are a drag on individual liberty and creativity, an economy-killer, the antithesis of the rugged American entrepreneurship. In the real world, government oversight can make the workplace safer, and cheaper to run – so says a    researcher at that bastion of liberalism, the Harvard Business School.

In the May edition of Science, Michael Toffel, and his colleagues David I. Levine of the University of California Berkley, and Matthew Johnson of Boston University, presented the results of a data analysis of 409 California companies, selected from industries with high injury rates for random inspections by the state’s Division of Occupational Safety and Health. The trio found that inspections actually resulted in a 9.4 percent decline in injury rates and a 26 percent reduction in injury costs, when compared to a matched cohort of 409 California companies that were eligible but not selected for random OSHA inspections.

Further, “we find no evidence that these improvements came at the expense of employment, sales, credit ratings, or firm survival,” the researchers said. Continue reading

Keep Your Head in a Tornado

Over more than three days in late April, the South, the Midwest and the Northeast saw the largest outbreak of tornadoes ever recorded in the U.S. – 359 tornadoes cut a swath of destruction, killing 362 people and causing billions of dollars in damage. Dubbed the “Super Outbreak of 2011,” the string of violent storms was its most destructive in Alabama. Despite its location south of Tornado Alley (the Great Plains states between the Rocky Mountains and the Appalachians), Alabama is a frequent host to tornadoes and experienced the largest loss of life last April. During the Super Outbreak, 247 Alabamians died, with 21 deaths in the state’s most populous county, Jefferson County.

Researchers at the University of Alabama at Birmingham (UAB) have pinpointed head and neck injuries as the leading mechanism of tornado-involved deaths and they have identified a simple, low-cost solution: helmets. Dr. Russ Fine, founding director of the UAB Injury Control Research Center, says that any helmet designed to protect the head will work — a football helmet, a bicycle helmet, or a construction hard hat — to minimize the damage from high velocity impacts.

“This is as obvious as the nose on one’s face,” Fine said. “It doesn’t require 50 studies and millions of research dollars. This is an effective, practical, sensible intervention that will save lives and reduce injuries.” Continue reading

Escalator Injuries and Deaths and the Role of Design

There are about 33,000 escalators operating in the U.S. – far fewer than the number of elevators. But injuries occur more frequently on escalators, about 15 times more frequently than elevators. Although entrapment – in which a body part or piece of clothing becomes wedged in the gaps between the moving parts of an escalators – is often a high-profile issue because those incidents typically involve small children, falls on and over escalators account for three-quarters of all escalator injuries. Falls often cause more severe injuries and more fatalities.

There are two distinct groups of fall incidents – those that occur on the escalator and those that result in a passenger falling over the handrail of an escalator. Researchers have attributed the causes of falls on escalators to contact with another passenger, inappropriate footwear, balance and coordination issues in the elderly, among others. Falls over the handrails often have been tied to misuse, such as jumping from one level to another, or attempting to ride by sitting on the handrail, usually in a state of intoxication. But falls over handrails have also occurred as the result of entrapment; a passenger leaning over too far; inadvertently dropping a child who was being carried by an adult on the escalator; or a fall that begins on the escalator, but ends with the victim plunging over the side.

After collecting 305 incidents worldwide, 29 percent of which were fatal, David Cooper, a Great Britain-based escalator and elevator consultant concluded in a trade publication: “This is alarming given that many people within the industry have failed to realize that this is a major problem.” Continue reading

Memo to the Medical Device Industry: You’ve Got Problems

FDA News, a purveyor of U. S. Food and Drug Administration regulatory and international standards compliance newsletters, books, special reports and conferences, gathered the medical devices industry to a come-to-Jesus meeting last week and the warnings were stern: quality has been low and the number of U.S. Food and Drug Administration warnings and recalls is high. Medical device manufacturers haven’t met the bar for quality control and the regulations are about to get a whole lot tighter.

Presenters at the three-day conference on risk management and post-market surveillance reeled off a list of unhappy statistics:

Adverse events are growing faster than the market. Infusion pumps, automated external defibrillators and catheters produced 65 percent of the serious adverse events from 2005-2009, according to FDA data.

In 2010, the FDA issued 89 warning letters for Quality Systems deficiencies.

Nearly one-third of all medical device recalls occur as a result of design and/or manufacturing defects and root cause analyses shows that there are wide gaps in product design, manufacturing process control, and supplier management. (The FDA can also require a recall based on a wide variety of non-conformance issues including bad record-keeping, failing to report death and injuries associated with a device and failure to establish a corrective action plan.) Continue reading