Grill Brush Ingestion Case Results in Jury Verdict — And Safer Practices by Restaurant Chain

Sharon Beaty’s lawsuit resulted in a jury verdict that not only awarded her damages, but caused one of the U.S.’s most well-known restaurant corporations to opt for safer cooking practices.

On March 26, 2018, Sharon Beaty of Florence, South Carolina pulled the leftovers from her Outback Steakhouse dinner out of the fridge for lunch. She was only one bite in to her Alice Springs Chicken, a boneless grilled chicken breast smothered in mushrooms, bacon and cheese, when she felt a sharp piercing pain in her throat. The culprit was a thin, one-inch wire from a grill brush, lodged in her esophagus, and extracted two days later by a at McLeod Regional Medical Center.

More than three years later, a state court jury awarded Beaty $315,000 for her harrowing experience. Beaty underwent an emergency endoscopic surgery, with medical bills totaling nearly $45,000. As a result of the litigation, Bloomin’ Brands, Inc., the parent company of the restaurant chain, committed to cleaning their grills with a safer, wire-bristle free grill brush. The jury declined to impose punitive damages in the bifurcated trial. Nonetheless, says attorney Liam Duffy, who represented Beaty, that corporate change was as important as the verdict.

“My client was pleased that the jury listened attentively and recognized this was a serious and scary event. To her, the verdict was important but equally important is that her case has brought about change that will ultimately protect others. She was part of changing the restaurant industry to make it a little safer,” says Duffy of the Yarborough Applegate law firm of Charleston, South Carolina.

Duffy says that the judge limited their search for other similar incidents to three years of records from Outback Steakhouse restaurants, which turned up about eight incidents of wire bristles contaminating food.  Had Beaty been able to pursue more years throughout the entire Bloomin’ Brands network of chain restaurants, there likely would have been more. Bloomin’ Brands boasts more than 1,450 casual dining restaurants worldwide – including Carrabba’s Italian Grill, Bonefish Grill, Fleming’s Prime Steakhouse & Wine Bar, and Aussie Grill by Outback.

Duffy says that Outback claimed ignorance of the problem, because injury claims were handled by a third-party administrator that did not communicate the repeated complaints back to corporate headquarters. Nonetheless, Outback had been sued before for grill brush wire injuries. In September 2017, actress/model Alexis Eichelsbacher of Pittsburgh sued Bloomin’ Brands, alleging that she ingested a wire from a grill brush after eating a take-out steak dinner from a local Outback location. According to the complaint, Eichelsbacher suffered two months of intermittent pain and bloating in her abdomen, and nausea, consulting with her gynecologist, and hospital emergency room personnel, before a laparotomy located the black wire bristle, which had perforated her bowel, necessitating a repair when it was removed.

The safety hazards posed by wire grill brushes that shed their bristles, embedding themselves in food, and eventually, different parts of the human body, gained high profile in 2012. U.S. Senator Charles E. Schumer and Consumer Reports joined together to call on the U.S. Consumer Product Safety Commission to determine whether grill brushes were safe and to warn consumers of the potential hazard, based on incidents that occurred in New Jersey and Washington State. (Read: The Ill of the Grill )

In 2016, the journal Otolaryngology-Head and Neck Surgery published a study based on the Consumer Product Safety Commission’s National Electronic Injury Surveillance System (NEISS) database, which samples emergency department visits for wire bristle injuries. It found that from 2002 to 2014, an estimated 1,700 individuals went to an emergency room after ingesting a wire bristle in grilled food. Not surprisingly, the summer months saw the vast majority of the visits. The researchers concluded that wire bristle ingestion wasn’t a common injury.

However, as the medical literature attests, it can have serious consequences. Documented serious cases of grill brush ingestion include those in which the bristle lodged itself in the abdominal wall, the bowel, a liver abscess, and a stomach fistula. In one 2014 case study, the victim died of peritonitis when the wire perforated the terminal ileum.

One case involved a Michigan woman who lodged a wire bristle in her throat after a single bite of a hotdog. Linda Pelham suffered six months of pain and bouts of difficulty swallowing and breathing. While physicians located the source — a wire grill brush bristle stuck in her throat – the bristle moved from one side to the other. At one point, it was lodged too close to the jugular and carotid arteries to operate. They were finally able to extract the wire when it moved into a safer position.

Cases like Beaty’s illustrate why an outcome that includes changing corporate conduct, such as ushering in new grill-cleaning equipment at a restaurant giant like Bloomin’ Brands, is so significant.

“If possible, we try to get effect a safety change into as many settlements as we can,” Duffy says. “Of course, clients want to be made whole, but what is often more important to them—and to us as trial lawyers—is what can we can do to prevent the same thing from happening to someone else in the future?”



Hyundai-Kia’s Billion Dollar Engine Problem that Broke the NHTSA Civil Penalty Barrier

A federal judge in California has put one class-action lawsuit in peril and approved a settlement in another alleging defects in Hyundai and Kia engines. The Korean automaker’s billion-dollar-plus legal liability is on top of the largest civil penalty the National Highway Traffic Safety Administration has ever levied against an automaker. The language of the consent agreement was opaque, but the public record is clear.

On May 11, U.S. District Judge Josephine L. Staton approved a $1.3 billion settlement that consolidated several 2017 and 2018 nationwide class action lawsuits, alleging that Hyundai Kia refused to recall vehicles with the Theta II GDI engine, even though the automaker knew the engine was defective. Representing 3.9 million owners of Hyundai Sonata, Santa Fe, and Tuscon vehicles, and Kia Optima, Rio Sorento, Soul and Sportage vehicles, roughly in the 2011 to 2019 model years, the plaintiffs charged that the Theta II GDI was prone to catastrophic failures and non-collision fires, which exposed vehicle owners to safety hazards and economic losses.

This ruling comes on the heels of Judge Staton’s dismissal last week, with leave to amend, of another California class alleging that Hyundai/Kia vehicles with Gamma 1.6L Gasoline Direct Injection engines were defective – different engine, same complaints: stalling, excessive oil consumption and fires. Judge Staton ruled that this complaint, filed in August 2020, failed to assign a cause to these symptoms other than poor manufacturing quality. 

And, six months earlier, NHTSA announced a whopper of a civil settlement with Hyundai Kia – $210 million – the agency’s largest penalty ever. It stands out because it’s been a minute since NHTSA has imposed any meaningful penalties on manufacturers uninterested in following safety regulations. The watershed years were 2014-2015, when the agency, with former Administrator Mark Rosekind at the helm, issued 10 consent orders totaling more than $530 million against a variety of manufacturers, including Hyundai, Honda, GM, and Fiat Chrysler, mostly for untimely recalls and failing to submit Early Warning Reports. But perhaps, with the Trump administration gone, it feels safe to regulate and enforce again.

(NHTSA kicked off 2021 with a $30 million penalty against Daimler Trucks North America following a 2018 investigation into seven recalls that were launched in 2017 and 2018. According to the Consent Order, the agency charged that, based on Daimler’s chronologies of events, it failed to launch timely recalls. In addition, the agency said, Daimler failed to produce timely information — including field reports — to NHTSA as it conducted a recall query. The agency opened Audit Query 18-002 in April of that year to examine four recalls that involved semi-trucks, school buses with wheelchair lifts, and recreational vehicles. Later, NHTSA expanded it to include three more recalls – two of which were expansions of earlier recalls.)

What did the Korean automaker do to earn such a righteous slap? The Consent Order only mentions “inaccuracies” and “omissions” in its communications with the agency and a failure to launch timely recalls involving more than 1.6 million Hyundai and Kia vehicles suffering from a manufacturing defect that allowed metal debris to cause premature wear of a bearing that could lead to an engine stall.

But the troubles of Hyundai Kia vehicles with Gasoline Direct Injection (GDI) engines are much more complex than that. Over the last five years, millions of Hyundai and Kia models have been the targets of four different investigations, class-action lawsuits, extended warranty programs, a product improvement campaign, and 10 recalls to deal with defects that cause stalls and non-crash fires attributed to a variety of causes. Even as Hyundai Kia agreed to pony-up to settle the class-action and NHTSA’s allegations of untimely recalls, it remains under agency scrutiny for non-crash fires plaguing many models in its fleet.

According to Hyundai, its troubles began in April 2011, when its Montgomery, Alabama, assembly plant changed the way it removed machining debris from the crankshaft of the new Theta II GDI engine. Hyundai had invested four years and $147 million developing the Theta II. Car and Driver described its launch as “the next step towards [Hyundai’s] bold goal of becoming the fuel-economy leader.” Unveiled in 2009, the 2.4-liter GDI’s first application was the 2011 Sonata.

But, once in the field, Hyundai saw its warranty numbers rise, as customers filed claims for excessive noise, an illuminated check engine light, and – to a lesser extent – moving stalls. Hyundai wasn’t overly concerned, it later told NHTSA, because the majority of those customers did not mention the speed of the vehicle at the time of the stall and they were also able to restart their vehicles and/or move the vehicles to the side of the road.

By June 2015, the complaints to NHTSA’s VOQ database were approaching heights that caught the agency’s attention, and it reached out to Hyundai. The automaker conveyed its lack of concern – a feeling NHTSA did not share, especially in the case of a high-speed stall.

In September 2015, Hyundai recalled 470,000 Model Year 2011-2012 Sonata vehicles equipped with 2.4L and 2.0L Theta II GDI engines. Hyundai described the defect as metal debris generated while manufacturing the engine crankshaft being left in the component’s oil passages. Over time, these metallic bits could be “forced into the connecting rod oiling passages restricting oil flow to the bearings,” reducing the flow of oil and possibly raising the temperatures. This condition could lead to premature wear of the connecting rod bearing, eventual failure, and a vehicle stall. The remedy for this defect was an engine noise inspection, which consisted of moving the vehicle to a quiet place and positioning a mobile tablet near the steering wheel to assess the engine sound. An algorithm – unexplained in the repair instructions – determined if the vehicle passed or failed the inspection. The latter got a new engine; the former got a new dip stick and an oil top-off.

At the same time, Hyundai extended the warranty for the engine short block assembly for all recalled vehicles, plus the net two model years that had been manufactured at the Montgomery plant – in other words, they launched a silent recall.

Kia also had Optima, Sorento and Sportage models equipped with 2.4L and 2.0L Theta II GDI engines, but it took no action in 2015 because it checked its Theta engine manufacturing process, which involved a separate assembly line using different procedures, and found no issues, with “extremely low” rates of warranty and field claims.  

Over the next 18 months, according to chronologies Kia and Hyundai submitted to NHTSA, they continued to monitor the issue. Kia contracted engine manufacturer Translead to conduct a detailed review of Kia warranty-returned engines. Translead identified an oil delivery issue, but the claims rate was still low, so Kia did nothing.

In May 2016 — Kia told NHTSA — it learned about Hyundai’s extended warranty program for the Sonatas (Really? It took eight months before they knew about that?) and took another look at the field data. The claims were still low, but picking up as customer satisfaction eroded under the high repair costs for out-of-warranty vehicle owners. Kia also decided to extend its warranty to all 2011-2014 Optima owners with 2.0 or 2.4-liter GDI engines to 10 years or 120,000 miles – in other words, it did a silent recall.

The field data for Theta GDI engine claims for the 2011-2014 Sportage and Sorento vehicles was also rising – although by not as much as the Optima. In August 2016, Kia decided to launch another silent recall covering those models. Kia encouraged owners who heard engine knocking sounds to bring their vehicles in for repairs, but dealers were turning away anyone who could not produce their oil change records.

That same month, Hyundai engineer and 26-year company veteran Kim Gwang-ho, flew to the U.S. to meet with NHTSA officials. Kim, a member of Hyundai’s Quality Strategy team, which makes recall decisions, alleged serious safety lapses involving the Theta GDI engines. Citing an internal quality report, Kim raised his concerns that the 2015 recall did not cover the entire population of affected vehicles in the U.S. and South Korea. He also stressed thatthe problem was also related to the engine design, not just a manufacturing defect.

Throughout the fall, Kia determined that its customer mailing list was out-of-date and the extended warranty notices were not reaching consumers, and it did a second mailing. By December, the VOQ data showed that people who complain about a stall still have enough motive power to get to the side of the road. Complaints were also dropping as its customers become aware of “remedy and free repair” offered in the silent recall.

Likewise, Hyundai continued to monitor engine-related field data during 2016 and into 2017. Despite having blamed the problem on a manufacturing process that it had long-ago corrected, Hyundai was tracking a rise in claims for engine replacement in later model years related to substantial noise or illuminated check engine or oil pressure warning lights, or stalls at higher speeds. By March 24, 2017, Hyundai decided to convert the silent recall for the remaining 2013 and 2014 Model Year Sonatas to an actual safety recall (17V-226), and to add the Santa Fe Sport vehicles manufactured at the Montgomery plant, which were having the same problems. Total recall population – 572,000 MY 2013-2014 vehicles.

Coincidentally, four days later, Kia launched its own recall (17V-224) for 443,825 MY 2011-2014 Kia Optima vehicles; 165,918 MY 2012-2014 Sorento vehicles; and 8,417 MY 2011-2013 Sportage vehicles, “based on anticipatory risk concerns.”

Also coincidentally, both described the defect in near identical language – metal debris from factory machining, leading to restricted oil flow to the main bearing, engine knock and an illuminated oil pressure warning light, and causing eventual failure and a stall. Neither explained why machining debris was still afflicting engine assembly lines even though Hyundai supposedly fixed it, and Kia never had the issue to begin with.

Given its inside intel from Kim, NHTSA was understandably suspicious of these unconvincing Part 573 Notices of Defect and Non-compliance, and in May 2017, opened a Recall Query to determine if Hyundai and Kia met its regulatory burden of issuing these recalls within five days of learning of a defect.

Something’s Burning

While NHTSA was digging into Hyundai Kia’s stall issues, the Center for Auto Safety was collecting instances of non-crash fires in an overlapping population of vehicles that shared the Theta II GDI engine. In June 2018, CAS petitioned NHTSA to open an investigation into the Hyundai MY 2011-2014 Sonata and Santa Fe vehicles and Kia MY 2011-2014 Sorento and Optima vehicles. The non-profit cited 120 consumer fire complaints filed to the agency’s VOQ database and another 229 VOQs of melted wires, smoke, and/or burning odors. 

The agency obliged, opening a Defect Petition investigation in August 2018 covering 2.2 million vehicles. The Opening Resume noted that the majority of the reported fires appeared to be related to the engine failures in the recall queries.

In October of that year, CAS publicly called on Hyundai and Kia to recall those vehicles, plus the 2010-2015 Kia Soul, charging that the incidents were ongoing and occurring with greater frequency and intensity. Since their initial request to NHTSA, CAS said, it had tallied an additional 103 fire reports, equaling almost one fire a day across those five models.

Litigators entered the fray, filing multiple multi-district class-action lawsuits. Under pressure from the regulators and the plaintiffs’ bar, Hyundai Kia began rolling out the recalls:

In December 2018, Hyundai/Kia launched a safety campaign involving more than 218,000 vehicles covered by the 2015 and 2017 recalls that received the engine replacement repair because the high-pressure fuel pipe may have been damaged or improperly installed, allowing fuel leaks that could lead to fires.

In February 2019, Kia recalled 378,967 2012-2016 Souls with 1.6-liter Gamma GDI engines for an overheating catalytic converter. Kia blamed faulty ECU logic for the Catalytic Overheating Protection, which could allow the high temperature of exhaust gases to damage the catalytic converter and cause abnormal engine combustion, leading to engine piston damage and rod breakage. Eventually, oil could escape the engine block, contact the hot exhaust surface, and start a fire.

It was, no doubt, a good effort. But not enough to deter NHTSA from bumping up the Defect Petition investigation to a Preliminary Evaluation (PE19-003) in March 2019. By that time, the agency counted — between its own VOQs and Hyundai/Kia reports — 1,341 non-crash fire complaints, with 26 injuries.

There is very little in the public file related to the search for root causes. But, suffice it to say, the inquiry sent Hyundai Kia in a lot of different directions. Between February and December 2020, the automaker launched 11 investigation-influenced recalls covering more than 2.5 million vehicles to address non-crash fires in a wide variety of models for a variety of causes — leaky fuel feed lines, short-circuiting ABS modules and ABS brake hydraulic electronic control units, and rod bearing failures. A December Kia recall for 295,000 Sorento, Forte, Koup, Optima Hybrid, Soul and Sportage vehicles made little attempt at a defect description. The Part 573 merely states that “an engine compartment fire can occur while driving for many reasons and depending on the severity of the fire, the identification of the cause can be untraceable.”

Yes, there are “many reasons” why NHTSA fined Hyundai Kia $210 million in November even if you can’t read about them in the consent agreement. Meanwhile, the NHTSA investigation into non-crash fires remains open.

As for the nearly 4 million Hyundai/Kia owners represented in the consolidated MDL, the $1.3 billion settlement includes free diagnostic Knock Sensor Detection Software, which continuously monitors engine performance for the symptoms that precede engine failure; a Lifetime Warranty covering all costs associated with inspections and repairs; reimbursements for any out-of-pocket costs borne by owners who had their vehicle repaired outside of or before the recalls; and loss of value payments.

The Theta II was intended to be the engine that rocketed Hyundai Kia’s cars to the top ranks of fuel efficiency. Instead, it broke federal civil penalty records. Theta, the eighth letter of the Greek alphabet, denotes a variety of mathematical and scientific concepts, such as a plane angle in geometry, an unknown variable in trigonometry, and a potential temperature in meteorology – to name a few of the easier-to-grasp representations. Within the engineering circles at Hyundai and Kia, it might as well represent the engine from hell. 

Litigation Pushes Ski Boat Manufacturers to Safer Designs

On July 17, 2014, seven-year-old Ryan Paul Batchelder lost his life in a boating mishap that his family alleges, was completely preventable.

The occasion was a Batchelder family reunion on Lake Burton, a 2,775 acre-reservoir in Georgia’s Northeast corner. Ryan was one of a party of six that included his uncle, Darin Batchelder, his brother Josh, and his first cousins, Kayla and  Zack, in a rented 20-foot Malibu Response LX Bowrider. That Thursday evening, the children were seated in the bow of the boat, with great uncle Dennis Ficarra at the helm, and Darin in the adjacent port seat.

Ficarra was navigating the Bowrider across its own wake at less than 10 mph, when the bow dipped under wave, immediately swamping the boat. Josh and Kayla scrambled over and through the narrow opening of the windshield into the cockpit, Zack jumped out of the sinking boat and Ryan and the seat he was sitting on was washed overboard; Ficarra attempted to halt the sinking by throwing the boat into reverse. Zach, Josh and Kayla were able to climb through the narrow windshield opening into the cockpit of the boat.

Ryan, however, became entangled and lodged in the propeller rudder and driveshaft, which severely lacerated his body and amputated his leg. He died from drowning and massive blood loss. With Ryan’s body wedged in the vessel’s mechanism, the boat was disabled, and the Batchelder family had to wait for help to arrive as the water filled with blood. Ultimately, the boat had to be towed to shore and lifted out of the lake for rescue personnel to untangle the young boy’s body from the propeller.

Ryan’s parents, Steven and Meg Batchelder wanted their funny, fearless youngest son to be remembered for two of his fondest ambitions: to own a million stuffed animals and to become Santa Claus. They combined them in the founding of the Ryan Batchelder Foundation, also known as Little Hugs. The organization donates new stuffed animals to children who need comfort, providing more than 3,000 of them to impoverished children in the Caribbean and Latin America.

The Batchelders also want another legacy for Ryan: safer boats. In a civil lawsuit filed in the state Superior Court of Rabun County, the Batchelders allege that the Malibu Bowrider was defective and that the manufacturer was negligent in designing a boat that when used as intended, the weight of occupants in the bow rendered it vulnerable to swamping. The Batchelders allege that Malibu failed to adequately test the Bowrider as it was likely to be used – indeed as it was marketed. Finally, the complaint alleges that Malibu failed to warn its customers about the unsafe nature of the boat.

The lawsuit, filed in May 2016 is headed for trial next April. The lawsuit is in the discovery phase.

Malibu Boats bills itself as “the world’s largest manufacturer of watersports towboats, owning over one-third of the worldwide market share.” Founded in 1982 by six water-skiing enthusiasts from California, the company opened a production facility in Loudon, Tennessee in 1992. Eventually, the company headquarters relocated there from Merced, California. In 2006, the private capital fund, Black Canyon Capital acquired Malibu Boats, and later took the company public in an IPO. Its corporate history, sketched on its website, describes its forward-thinking approach to boat design. A timeline describes the addition of “the first on-board computer system, dubbed “Computron” which included the first and only LED graphic speed control.” and “By 1995 Malibu was confidently throwing out terms like “ergonomics” to describe the principles behind design considerations.”

But, the reality, as described in a deposition by Robert Alkema, one of Malibu’s original founders and former CEO, is: despite its outsized footprint in the world of towboats, Malibu’s design process was more relaxed. Alkema testified that the company created the step-over bow used in the Batchelder’s Bowrider LX in 1996, by simply cutting a hole in the deck of another model, called the Response, in their shop, and added some seats to the bow area. Alkema testified that the impetus for the design was market share: “It was a belief on our part that we could sell – or would – there would be a bigger market for a boat that had more seating.  And that’s proven by other specific open bow models. So the walkover was a thought to be a more novel way to maintain the skiability and the two rearward facing passengers, and have the seating in the front.”

Alkema testified that no engineering adjustments were made, despite the fact that the design would have added more weight to the bow of a boat that had originally been designed to have no weight in the bow. Nor did Malibu give any consideration to making a bow capacity weight limit for the Response LX. Alkema also testified that it would be up to the customer’s reasonable judgement to decide how many occupants could safely fit in the bow of the boat, and that the company had no testing protocol nor did any testing to determine safe weight capacity.

Bell v. Mastercraft

The problems with weight distribution and boat design that may have contributed to the Batchelder tragedy closely mirrors another incident involving Malibu’s main competitor.

In June 2011, Nicholette C. (Nikki) Bell won a $30. 5 million jury award in a Butte County, California court against manufacturer MasterCraft Boat Co. Inc. for serious head injuries she sustained in a 2006 boating accident.

Bell, then a 23-year-old California State University Chico student, was a passenger in a MasterCraft X45 boat out for a July afternoon of wake-riding on Lake Oroville, a reservoir in northern California. The driver was attempting to turn the boat around to pick up a fallen wake-boarder, when the bow dipped below the water line, pitching Bell and passenger Bethany Wallenburg into the water and the path of the propellers. Wallenburg, who went into the water feet first, sustained injuries to her elbow, leg and lower back. But Bell suffered major head trauma when the propeller sliced through her face and skull. Her permanent injuries included the loss of her left eye and part of her frontal lobe.  

MasterCraft had created the 24-foot wake board boat by combining design the hull of one model, the X-80, and the deck of another model, the X-Star. The result was a hull with a downward curve and a SuperFly pickle-fork bow, with an 18-person capacity. MasterCraft advertised it as “the most spacious 24-footer on the inboard market.”

The boat was loaded with 20 passengers, and Bell and Wallenburg were among 12 people in the bow when the X45 swamped.

The court proceedings pitted the plaintiff’s theory of the case – that the boat suffered from a defective design against the defendant’s – that the operator was intoxicated and caused the injuries when he attempted to throttle forward to bring up the bow, instead of putting the wakeboard boat into neutral. Testimony during the 49-day trial revealed that MasterCraft had combined the two designs and set an 18-person, 2,928 pounds capacity limit without doing any testing or risk assessments. Nor did MasterCraft provide boat owners any guidance on how the weight should be distributed. The plaintiffs also argued that another design flaw – a hole in the anchor locker located in the bow close to the waterline – allowed water to collect unseen in the hull. The extra weight of that water combined with the downward curve of the bow, also known as reverse sheer – exacerbated the tendency for dipping, the plaintiffs argued.

“They had no naval architects and they didn’t do any engineering,” says attorney Roger A. Dreyer of the California firm of Dreyer Babich Buccola Wood Campora, LLP, who represented the Bell family. The design criteria was what looks good — not what was safe. The design was completely contrary — boats don’t have bows that go to the water. There’s no efficiency. But one [Mastercraft manager] testified that it looked ‘sexy.’”   

The jury found that the MasterCraft design accounted for 80 percent of the fault; the boat operator Jerry Walter Montz was 20 percent responsible.  Bell, who suffered permanent brain damage. The jury awarded Bethany Mercer $530,688.

The lawsuit had its own wake, sending competitors such as Malibu to develop safety tests that did not exist previously. Malibu COO Rick Anderson testified in the Batchelder case that when he joined the company in July 2011, Malibu’s product development team was in the midst of developing testing for the bow capacity labels, such as a Bow Dip test and a Rough Seas test. Sometime before the end of 2011, the company made the decision to put maximum capacity labels for the bow area in the boat.

Anderson testified that the main purpose was not to protect customers, but to shield the company: “We thought that would help – would be one of the biggest things to help on the           liability side if anything ever did happen.” In his deposition, he said “I think that’s what pushed it for the industry.  Because that’s when it became an industry problem.  So everybody stepped back and looked, okay, if we are going to have people out here misusing our product, we are seeing it, what do we  do to try to help defend that.”

Boats Built With Few Rules

Unlike passenger and commercial vehicles and aircraft, boats are manufactured under few regulations, and are not subjected to compliance tests to meet a particular dynamic performance standard. The U.S. Coast Guard is the federal agency that promulgates boating regulations, which include standards related to ignition, fuel and electrical systems, navigational lights and safe powering.

They also include standards on capacity labels and limits. Each boat is required to be marked with the maximum capacity in whole numbers of persons and in pounds. The safe loading regulation requires that a calculation the takes into account boat weight and maximum displacement, along with the added weight of occupants. However, the Coast Guard does not test boats. And, there is no requirement that boat manufacturers test their boats at their advertised capacity. Many, including Malibu did not, until the Bell verdict.

Many of the standards apply to all vessels, however, the regulations regarding Safe Loading and Display of Capacity information only apply to monohull boats less than 20 feet in length, except for sailboats, canoes, kayaks, and inflatable boats.

That means that neither the MasterCraft X45 – at 24 feet – nor the Malibu Response LX Bowrider – at 20 feet – would be regulated for safe loading or capacity labelling.

All other standards and certifications are voluntary, written by industry groups such as the American Boat and Yacht Council and the National Marine Manufacturers Association. The former claims: 

“Standards are the core of ABYC as they are continuously researched, developed and revised by over 400 volunteer marine professionals on 16 Project Technical Committees (PTCs) from all fields of the industry including the U.S. Coast Guard (USCG), trade organizations and private entities. ABYC collaborates with safety organizations worldwide such as Transport Canada and the International Organization for Standardization (ISO). As a result of strong industry and government support, ABYC has evolved into the premier standards developer and the viable alternative to mandatory government regulations of the marine industry.”

Boat manufacturers can and do tout ABYC and NMMA certifications, but according to one certification compliance inspector assigned to Malibu’s Tennessee plant, the trade organizations do not do any dynamic inspections or testing before certifying a model to the industry standard. Clyde Head, who had worked for a decade as an independent inspector for the National Marine Manufacturers Association, testified in the Bell case that his inspections consisted of static testing of components such as the electrical, seating, re-boarding handrails.

You Cannot Change the Laws of Physics

The revelations contained in depositions filed in Rabun County Superior Court echo those of other manufacturers in the RV and bus industries who failed to systematically determine appropriate weight limits – employing an ad hoc design process conducted with little testing by staff without engineering credentials and driven more by market considerations than safety.

The laws of physics show, in example after example, that overloading a conveyance in critical locations under certain circumstances becomes a literal tipping point that routinely causes injuries and deaths. Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support strains tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants in vehicles that offer little occupant protection in crashes.

In August 2006, The Safety Record published a story of repeated RV recalls by Country Coach, one of the nation’s largest manufacturers of Class A motor homes (now owned by Winnebago Industries) to replace the tires on some of its motor homes, blaming the tire manufacturer for outfitting its recreational vehicles with tires unable to carry their weight.

Country Coach, blamed Toyo’ Tires’ M102z models for more than 50 tire failures since 2003 – a charge Toyo denied. But overloading was an industry-wide problem in the early 2000s. At least five manufacturers, including Fleetwood, Newmar, Airstream, Four Winds and National RV Inc., had initiated recalls involving more than a dozen motor home models with incorrect weight or tire pressure ratings.

Rick Morrison, an attorney based in Mobile, Alabama, who was litigating two separate cases of left-front tire failures on motor homes that resulted in fatalities said, at the time: “As far as I’ve seen, there is no engineering process, no testing, nothing that the RV manufacturers have done to make sure that the tires are appropriate for their vehicles and have the appropriate load-bearing capabilities.”

In June 2015, The Safety Record published a two-part story about a 2009 fatal rollover in Mississippi that resulted in a civil liability settlement, a class-action lawsuit, two recalls and a NHTSA Audit Query. (See A Bus Crash, Litigation and a Surprising Result Part I, Part II)

In July 2009, two members of the Shreveport, La. First Baptist Church youth group died and 21 passengers aboard a 42-passenger 2007 Starcraft XLT International 3200 bus manufactured by Forest River were injured. The group was enroute to Macon, Georgia to attend a youth ministry camp, when the left rear tire of the Starcraft bus suffered a catastrophic tread separation, prompting a loss of control that caused the bus to roll over one and a half times.

The company had built the bus on a Navistar chassis certified to a certain fully loaded weight. But in outfitting the bus with extra seats and a cargo room for customers such as churches, Forest River had cut the chassis in half and extended it to make it longer. Frame rails were also added to the rear of the bus to extend it even further for the cargo area. As re-configured by Forest River, the bus was no longer safe to carry a full load of passengers and their luggage. Nonetheless, as a second-stage manufacturer, Starcraft used the original manufacturer’s compliance certifications to assert that the vehicle met government safety standards.

The victims sued Forest River. John Davidson, a Jackson, Mississippi lawyer who represented some of the plaintiffs discovered this loaded weight discrepancy in the First Baptist’s bus, and other, similar medium-sized buses. He also discovered, in deposition testimony, that none of Forest River’s engineers actually had engineering degrees, and the company had no industrial scales to weigh their products.

Fifteen-passenger vans continue to be a vehicle that is unsafe for its intended use. NHTSA research shows that 15-passenger vans have a rollover risk that increases dramatically as the number of occupants increases from fewer than five to more than ten. Between 2004 and 2013, 653 Americans died in crashes while riding in 15-passenger vans – an average of 65 occupants per year, according to NHTSA data. The agency continues to put out periodic advisories, warning the public about the dangers of 15-passenger vans. The last one was in 2015.

Contrary to the popular narrative, Americans do not live in a world of over-regulated products. There are thousands of consumer products manufactured without regard to engineering design principles or safety standards, and without testing or meaningful government oversight. And, once in the marketplace, some of those products do great harm. But, as the cases against Mastercraft and Forest River show, litigation plays an important role in pushing industry to improve.  

Dreyer knew that he had achieved a measure of justice for Nikki Bell, but he had been unaware of the response from Mastercraft’s main competitor.

“We have many cases in which we have been able to affect change using conditional settlements. And even though we  got this eight-figure verdict in a community that was very conservative, it would have no effect on making the defendant do something to improve its practices,” Dreyer said. “To know that my case had an impact – it was a very powerful moment.”

Quality Control Systems Corp. Sues DOT for Tesla Data

Quality Control Systems (QCS) Corp. has filed a Freedom of Information Act (FOIA) lawsuit in the U.S. District Court for the District of Columbia in pursuit of Tesla airbag deployments data that the National Highway Traffic Safety Administration (NHTSA) has withheld from public view.

R. A. Whitfield, the company’s director, said that the company wanted to test the validity of claim made by NHTSA that airbag deployments in Tesla vehicles dropped by almost 40 percent after the installation of a component of the Tesla’s Autopilot system, Autosteer. NHTSA asserted this decrease in a report accompanying the Closing Resume of Preliminary Evaluation 16-007. The investigation was prompted by the May 2016 death of Joshua Brown, a Tesla enthusiast who was driving his Tesla Model S in Autopilot mode, when it crashed into an 18-wheel tractor-trailer truck that was turning left in front of it on US 27A, west of Williston, Florida. The report stated:

“ODI analyzed mileage and airbag deployment data supplied by Tesla for all MY2014 through 2016 Model S and 2016 Model X vehicles equipped with the Autopilot Technology Package, either installed in the vehicle when sold or through an OTA update, to calculate crash rates by miles travelled prior to and after Autopilot installation. Figure 11 shows the rates calculated by ODI for airbag deployment crashes in the subject Tesla vehicles before and after Autosteer installation. The data show that the Tesla vehicles crash rate dropped by almost 40 percent after Autosteer installation.”

Whitfield says he wants to know if the methodology NHTSA used is scientifically valid and whether their results can be replicated. Other questions include whether the reduction in crash rates is actually due to Autosteer itself and whether the claimed crash reductions could be expected to continue over a longer period of time.

“The surprising improvement in crash safety that NHTSA associates with Autosteer would be very welcomed if the dramatic safety claims prove to be scientifically sound. But it is concerning that the crash reductions are associated with the installation of Autosteer, rather than the actual use of Autosteer,” Whitfield says. “And NHTSA’s analysis is just as astonishing for the fact that it lacks the most basic, information necessary for reaching well-founded conclusions about the claimed crash rate reductions. It is very remarkable that the published description of the Agency’s findings do not meet long-established scientific standards that would allow for an assessment of statistical confidence intervals or of statistical significance. Even the numerators and the denominators of the calculated crash rates are AWOL.”

NHTSA’s Office of Defects Investigation opened the Tesla probe on June 28, 2016, focusing on whether the Automatic Emergency Braking (AEB) or Autopilot systems had functioned as designed, increasing the risk of a crash. It closed six months later with no defect finding, saying that the system performed as designed, and blaming Brown for the crash. Tesla’s four responses submitted to the public investigation file were almost wholly redacted. For more information about PE16007 and its lack of transparency, read Autonomous Vehicles, the Beta Test Coming to a Roadway Near You.

Safety Research & Strategies has long advocated for NHTSA transparency. For example, in February 2014, SRS submitted comments in advance of the agency finalizing its 2014 – 2018 Strategic Plan, highlighting its concern with NHTSA’s lack of transparency. SRS founder and President Sean Kane wrote: “Access to NHTSA’s investigations and data are increasingly difficult and expensive for the public and researchers as the agency assigns significant costs to provide information in response to FOIA requests. In some cases they have also refused to release information that should be public requiring FOIA litigation that has cost the Agency thousands of tax-payer dollars to settle.”

Since 2010, SRS has sued the Department of Transportation six times seeking public records on everything from child safety seats to unintended acceleration. All of these cases have been settled to our satisfaction. The four against NHTSA have ended with the agency agreeing to turn over more records and paying our fees, before a court judgement was rendered. You can read about our latest FOIA lawsuit here.

Whitfield says such an important conclusion by the agency should not be based on data that the government is withholding from researchers who want to examine NHTSA’s results.

“If the safety benefits of Autosteer are as positive as the Agency claims, why wouldn’t they want independent scientists to have the data in order to replicate these extraordinary results?” Whitfield asked.


And Now, the Rest of the Story on Keyless Ignition

For more than two years, The Safety Record had sought to report the results of a 2014 National Highway Traffic Safety Administration keyless ignition compliance investigation that involved seven major automakers, and to have our Freedom of Information Act request to the agency be awarded media status.

It has taken dogged persistence – and a lawsuit – but as 2016 drew to a shuddering close, we got our answers. And now (for those of you old enough to remember Paul Harvey’s famous radio show) the rest of the story: the agency closed the keyless ignition investigation after five months, with no findings of non-compliance. And, in the eyes of U.S. District Judge Ketanji Brown Jackson of the D.C. Circuit, The Safety Record is most definitely a legitimate news entity that pursued a legitimate journalistic objective in trying to report to our readers the conclusion of an agency action. (Judge Jackson spared the agency no quarter in her 35-page decision. The Safety Record found it delightful reading.)

Of course, there is much more to the plot, which we will recount in greater detail below.

But, we pause here to reflect on the real story: the failure of the agency to anticipate the consequences of a technological shift and to deal with them post-design and production, the utter failure of FOIA to serve as a tool to help citizens and journalists understand the innerworkings of their government, and the failure of NHTSA to put aside its petty antagonisms to answer some simple questions on a safety issue of genuine public interest.     

Compliance Probe Closes with a Whimper

In August 2013, with a 2011 proposal to upgrade Federal Motor Vehicle Safety Standard 114 to address the rollaway and carbon monoxide poisoning hazards caused by keyless ignitions on the table, NHTSA began testing 34 recent model-year vehicles to determine if these new push-button systems allowed the vehicle to be turned off in a gear other than park, or the key fob to be removed from a running vehicle with no warning to the driver, or allowed vehicles to be restarted without the key fob present.

This probe grew out of a compliance investigation involving rollaways in Ford vehicles. On February 25, 2013, a 2013 Ford Focus EV failed the agency’s FMVSS 114 compliance test, because “When the vehicle is started, shifted out of “park”, turned off, and the Driver’s door is opened no audible alert is given.” This violated a provision in the regulation requiring the vehicle to issue an audible alert when the driver exits and leaves the key in the ignition. (Manufacturers self-certify that their vehicles are compliant with all federal motor vehicle safety standards. Each year, the agency submits a small sampling of the fleet to test their compliance with various FMVSSs.)

In late June 2013, the agency contacted Ford to convey the following observations:

“When the vehicle is turned off using the push-button while not in “park” and the key fob is out of range of the vehicle:

1. It does not appear that the electronic key code remains present in the vehicle because it cannot be restarted. Section S5.2 of the Regulation states that if the key is able to be removed from the vehicle while the transmission is not locked in “park”, the vehicle’s transmission should become locked in “park” as a direct result of key removal. Like the Focus, the C-MAX was able to roll in this circumstance showing that the transmission had not locked itself in ‘park’.

2. If, like in the Focus, Ford states that the electronic key is still in the vehicle though not authorized to start the vehicle, the issue becomes that there is no door chime when the driver’s door is opened. Section 55.1.3 of the Regulation states that if the key is present in the vehicle and the driver’s door is opened, an audible warning to the vehicle operator must be activated.”


The agency asked Ford in an email to provide information regarding the 2013 Ford C-MAX’s certification to FMVSS 114, including test reports or video documentation of the door chime upon opening the driver’s door with the invisible electronic key still present in the vehicle.

This led the agency to expand the scope of its inquiry to look at other keyless ignition vehicles’ compliance with FMVSS 114, running a series of unofficial field tests on models manufactured by Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia in late summer of 2013. (The Safety Record obtained documents associated with the opening of this compliance investigation via a FOIA request and reported this story in March 2014.)

NHTSA’s field survey showed that many of the vehicles could be turned off, with the fob outside of the vehicle without automatically locking the transmission into Park, and could be rolled out of position. It also showed that there was no consistency among manufacturers, or even among models produced by the same manufacturer in terms of the types of visual warnings to drivers, the decibel level of audible warnings, or the scenarios under which a driver was warned that the key was not present or that the transmission was not in the Park position.

By September 30, Ford decided to recall 23,000 2012-2013 Ford Focus and 2013 Ford C-Max keyless vehicles to add an audible warning when the driver exited the vehicle.

The agency officially launched the larger compliance probe in January 2014. The agency’s Information Requests sought a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the system, when the electronic code that now constitutes NHTSA’s two-part key schema is purged from the system and the audio and visual telltales used to alert the driver when he or she has exited the vehicle. NHTSA also asked for complaint data and the safety information manufacturers provide to their customers about keyless systems.

The agency actually sent two IR letters. The first, sent on January 15, 2014 contained this sentence: “During testing it was determined that there may have been a non-conformance based on 49 CFR § 571.114 Section 5.1, and possibly Section 5.2, detailed below:”

A second version of the IR letter went out on January 28. The sentence alleging a non-compliance was removed.

In early June, the Office of Vehicle Compliance closed the probes with no findings of noncompliance. For example, in its closing report regarding potential non-compliances in Kia vehicles, Amina Fisher, the safety compliance engineer who conducted the investigation, notes:

“Each vehicle was started with the push button control and the transmission selection control was placed in Drive. The starting system was deactivated with the push button control and the key fob was removed from the vehicle. We verified that the vehicle was not in Park by pushing it.”

After conversations with Kia, NHTSA’s Office of Vehicle Compliance learns:

“The information and test data provided by Kia indicates the vehicles listed above meet all requirements of FMVSS No. 114. Regarding SS .2.1, if the vehicles’ starting system is deactivated when the transmission is not in Park, the starting system will be in the accessory position, the key (electronic code) has not been removed, and the transmission control is not required to be in Park. In addition, drivers are provided audible and, for some vehicles, visual warnings about the key and transmission position.”


And just like that – it’s over.


Where’s the @#&)+! Key?

Let’s unpack this.

One of the great downsides to electronic key systems is the transition of the key from a physical object to an invisible electronic code. We have complained to anyone who will listen that the average consumer doesn’t really understand this, and conflates the fob with the key, because you need the former to start the vehicle, and because manufacturers brand the fob with names like Smart Key, or the visual alerts in the vehicle say “Key not Detected” in reference to the fob. However, as we have noted many times, unlike a traditional key, the fob plays no role in turning off the vehicle.

The consumer doesn’t always realize where the “key” is, and it turns out neither did NHTSA or experienced compliance testers. In email exchanges, NHTSA officials discuss their inability to determine exactly where the “key” is, and Ford’s inability to demonstrate its location. In fact, Ford had to create a special tool to show when the key was actually still in the vehicle.

From a March 27 email from NHTSA to Ford:

“Patrick Culkeen from Ford called. He said that since our last conversation with them Ford has been working with their engineers in Germany to create a tool to determine if the key code is present within the vehicle. Ford is currently validating the tool to make sure it is functioning correctly. Per his understanding this tool plugs into the diagnostic port of the vehicle and gives readouts (to a computer with the software installed) saying whether or not the key code is present in the vehicle.”


From a May 23 email from NHTSA to Ford:

“A question came up regarding the electronic key code. Where in the vehicle’s system is this code housed after pressing the start button with the key fob inside the vehicle? Is there anything else you can tell me about how long the key code remains in the vehicle and/or under what circumstances?”


And maybe most importantly, some at NHTSA didn’t believe that these systems satisfied the intent of FMVSS 114. From an April 25 email:

“Eric [Britton of Ford] sent me their 114 reports. For SS.2.1 [in the Test Report 2] it specifies that in when the vehicle is turned off (and door opened) in all positions other than Park the status remained “Key Approved” as required. As I mentioned before, when they brought the device that determines the status of the key code to GTL, it also said the key was still in the vehicle when turned off (and door opened) in all positions other than Park. The instrument cluster always read “No key detected” during those tests. Christie lanetta [sic] [then senior trial attorney for Litigation and Enforcement at NHTSA, now at  King & Spaulding representing manufacturers] said that she wanted to discuss our Compliance Test results with Lloyd [Guerci, an attorney in NHTSA office of Chief Counsel], because though this vehicle may meet each individual requirement, it does not meet the intent of the standard (to prevent accidental rollaway).”

The Question of Question 9

One of the things we were most eager to learn in asking for the documents related to the investigation, was: How often are consumers reporting rollaways, carbon monoxide near-misses or injuries, or simply complaining that they forgot to turn off the vehicle, but the engine kept running, even though they had the fob?

Vehicle owners have been lodging such complaints (Vehicle Owners Questionnaires – VOQs) with NHTSA, which we know is a tiny sub-set of the customer contacts that manufacturers are getting directly.

Still capable of wide-eyed innocence as The Safety Record is, we thought that NHTSA would want to know, too. Question 9 in NHTSA’s January Information Request to the seven manufacturers asked for each vehicle model the number of consumer complaints about the starting system, including those from fleet operators; field reports, property damage and warranty claims, injuries, fatalities crashes and third-party claims.

This information would have been particularly helpful to the agency’s rulemaking efforts. Six years ago, the agency published a Notice of Proposed Rulemaking that would standardize engine termination procedures during panic stops (a legacy of the Toyota Unintended Acceleration crisis), and mandate loud auditory alerts to mitigate the rollaways and the carbon monoxide hazard. The Final Rule has been pushed off at least three times, and is still pending.

Among the many complaints the Alliance of Automobile Manufacturers had about the proposal was its basis. Manufacturers complained that it was illegal for the agency to use Vehicle Owner Questionnaires (VOQs) to promulgate a rule. Its objections ranged from the lack of information about each consumer complaint, the small numbers of VOQs, the difficulty in locating the VOQs mentioned in the Federal Register Notice, to the use of VOQs as a violation of the DOT’s data quality guidelines. A sample of the disdain dripping from AAM’s multiple submissions to the NPRM docket:

“In the case of keyless ignitions and the risks of carbon monoxide poisoning and rollaway from leaving the engine running when the vehicle is exited, the Alliance contends that the anecdotal reports referenced in the NPRM do not show that any new hazard is emerging, and thus cannot provide the safety justification for an FMVSS that is legally required under the statute.”


By February, NHTSA was revising Question 9, as it was deemed to be too broadly written. But by April 1, the agency lost all interest in the answer. Each manufacturer got an email like this: “This email is to inform you that we are no longer requesting a response to Question 9 of the FMVSS 114 IR letter dated January 28, 2014.”

In conclusion:

  • Neither consumers nor the agency can tell where the key is.
  • Ford has to invent a special tool to show where it is.
  • The invisible key may still be in the ignition unbeknownst to the driver, leaving the vehicle vulnerable to a rollaway.
  • At least one lawyer at NHTSA noticed that this violates the intent of FMVSS 114.
  • But, it’s all technically within the regulations, so never mind.
  • Consumers, it sucks to be you.


The Safety Record’s FOIA Journey

It took The Safety Record 831 days – two years, three months, and eight days – to get a response to our inquiry about the conclusion to the compliance probe. Running in the background was a dispute with the agency over whether The Safety Record would be considered a member of the news media for the purpose of assessing fees. Under the FOIA laws, commercial requesters can be charged for the number of hours a government agency spends gathering and reviewing the documents and for reproducing documents. Media requesters are only responsible for paying copying fees. NHTSA wanted to charge The Safety Record $2,070 to get the materials that served as the basis for this story.

The Safety Record actually started to examine what NHTSA had learned about the rollaway or carbon monoxide poisoning problems introduced by keyless ignition systems on October 30, 2013, when we submitted a FOIA request for any investigations the agency might have conducted into this issue. (Safety Research & Strategies had been studying the safety hazards associated with keyless ignitions since 2009 and had met with the agency in August 2010 to raise its concerns). So, it’s taken us basically about three years to report a simple story about a five-month investigation.

Our organization, Safety Research & Strategies, files many, many FOIA requests with a number of government agencies.

While we get adequate responses to some of our queries within a reasonable time frame, our FOIA requests to NHTSA are rarely promptly, simply or straightforwardly satisfied. Much of the delays are the result of the lack of FOIA staff at NHTSA. It’s a small handful of people trying to satisfy nearly 300 FOIA requests in a year. In its latest FOIA report to Congress, NHTSA reported starting the fiscal year with 77 pending requests, and received another 262 during that fiscal year. It finished with 249 responses and 90 pending.

Nonetheless, we usually find the first production wanting. After combing the documents, we find lots missing, such as documents referenced in emails or other documents, but not produced, or a suspicious dearth of communications with a manufacturer. We regularly file appeals. When we aren’t satisfied with the response, we take litigate, and that has proven to be a great motivator.

Since 2010, we have launched seven FOIA lawsuits – six against the Department of Transportation and one against the State of Florida seeking public records on a variety of safety issues – child safety seats, guardrails, unintended acceleration and keyless ignitions. All of these cases have been settled to our satisfaction. The four against NHTSA have ended with the agency agreeing to turn over more records and paying our fees, before a court judgement was rendered. (You can read about some of them HERE.)

The Safety Record, seeking information for stories to post on our blog, makes far fewer requests. Our newsletter and blog have been recognized as a news entity for FOIA purposes by other government agencies, such as the U.S. Consumer Product Safety Commission, and we have been credentialed as media by other entities such as the Society of Automotive Engineers. And while we have unsuccessfully sought media status from NHTSA in the past, this time, we took the DOT to court over it.

The suit was filed in July 2015, after the agency denied our administrative appeal to be considered a news entity. Two months later, the lawsuit was on hold. The agency said it would re-consider its decision, in light of another lawsuit, Cause of Action v. FTC, which made it pretty clear that The Safety Record would be considered a news entity for FOIA purposes. But, the agency denied our request a second time, and everybody got busy on their briefs.

We argued in U.S. District Court that The Safety Record satisfied FOIA’s five-part standard to be considered news media, and that we intended to use the information as the basis of a news story. The Department of Transportation argued that SRS and The Safety Record are virtually indistinguishable, and that the blog only served as a marketing tool for the business, so any FOIA request The Safety Record might make would necessarily be considered commercial use. 

Over 35 well-reasoned and somewhat pointed pages, Judge Jackson told the government that they had nothing. There were only two questions at issue: Did The Safety Record qualify under the terms set by FOIA as a news entity, and did The Safety Record intend to use the information for a journalistic purpose? The government, she noted, wisely tried to avoid the first question, since Cause of Action v. FTC made it pretty clear it was an argument they couldn’t win. And she called the government’s efforts to persuade her otherwise “utterly misguided.”

For example, here’s Judge Jackson’s take on the issue of whether The Safety Record uses “its editorial skills to turn raw materials into a distinct work”—The Safety Record again easily passes muster. “The Safety Record blog and newsletter are replete with opinionated articles that report on and editorialize about information relating to regulatory developments at NHTSA and other agencies.” (Opinionated – that’s definitely us.)

She rapped government lawyers for characterizing everything in The Safety Record published as “commercial speech,” and dismissed their evidence – an article talking about a FOIA request SRS submitted and another announcing a new staff member – as outliers.

“This Court also rejects DOT’s contention that Liberman’s publication of FOIA information in The Safety Record is necessarily a “commercial use” because the content of The Safety Record expressly promotes SRS’s services. (See Def.’s Mem. at 19–20.) This line of attack is substantively indistinguishable from DOT’s argument that The Safety Record is an advertising vehicle for SRS rather than a news media entity (see id. at 23–26; Def.’s Reply at 13–16), and thus, once again, DOT has veered away from the evaluation of “use” that is the proper focus of the “commercial use” analysis and wandered back into the thicket of its misguided concerns about the status of this records requester.” (Thicket of misguided concerns – we love that.)

Finally Judge Jackson chastised the government for failing to offer any evidence that The Safety Record sought this information for commercial use. In fact, she noted that the DOT said in oral arguments: “I have no reason to think it is not in good faith what they say they plan to do with it,”

“Third, and finally, to the extent that DOT’s requester-burden argument is actually a veiled attack on Liberman’s veracity (Tr. of Oral Arg. at 22 (counsel stating that Plaintiff “purport[s] they’re going to” publish the requested information on The Safety Record blog)), DOT has done little to demonstrate that such doubt is warranted. The Safety Record has a long history of requesting documents under the FOIA and then disseminating them to the public through its articles, and this Court sees no basis in the record for drawing an inference that Liberman did not, in fact, intend to do the same when she made the request at issue here.”


Our longtime FOIA attorney, David Sobel, noted the painstaking nature of Judge Jackson’s opinion:

“Judge Jackson’s careful and thorough decision makes clear that the agency had no basis for its refusal to recognize The Safety Record as an established news entity,” he said.

This memorandum opinion – filed on the last day of 2016 — does not end the matter. The government has 60 days – but, really, no basis – to appeal the judge’s decision.


To read more of our coverage on keyless ignition:

Keyed up With Anticipation: Smart Key Hazards Still Unresolved

The Keyless Ignition Litigation Solution

Another CO Smart Key Death… and what Happens when Smart Keys Collide?

A Funny Thing Happened on the Way to My Car…

Stupid Tricks with Smart Keys




The Keyless Ignition Litigation Solution

On Tuesday, the New York firm of Labaton Sucharow LLP filed a nationwide consumer class action in a Los Angeles federal court against 10 automakers who produce and market keyless ignition vehicles to force the implementation of an automatic cut-off feature.

The lawsuit is in response to a longstanding, widespread design defect that leads drivers to inadvertently leaving their keyless ignition vehicles running in the mistaken belief that the fob in their possession means that the engine is off. At least 13 carbon monoxide poisoning deaths have been attributed to the defect.

The Safety Record is quite sure that the manufacturers, including GM, Ford Toyota, Nissan, Honda, and Volkswagen, will welcome the suit with open arms. As they told the National Highway Traffic Safety Administration about a decade ago in response to a proposed upgrade to the accelerator controls standard (FMVSS 124), it is their steadfast belief that “market forces and litigation pressure are sufficient to assure fail-safe performance without a Federal motor vehicle safety standard.” And, as the agency has yet to act on a 2011 Notice of Proposed Rulemaking on FMVSS 114 that purports to address the carbon monoxide and rollaway hazards caused by these systems, litigation, it is!

Safety Research & Strategies has been studying the hazards of keyless ignition systems and advocating for a safety solution since 2009. Our work has included gathering the regulatory history, testing keyless ignition vehicles to assess their compliance with FMVSS 114, sifting NHTSA consumer complaints, keeping track of confirmed injuries and deaths, examining manufacturers’ customer communications regarding keyless ignition systems, and filing Freedom of Information Requests to determine what NHTSA has actually done to address this issue.

And we have shared that information in the form of news stories. And, in 2010, SRS President Sean Kane met with NHTSA officials to present our research. We specifically outlined the many ways keyless ignition vehicles changed the fundamental relationship between the driver and the key, while manufacturers misled their customers about how these systems actually worked. Early on, we concluded:

  • Keyless ignitions – as currently designed – introduced a hazard – carbon monoxide poisoning — that had heretofore not existed
  • Keyless ignitions are antithetical to the letter and intent of FMVSS 114
  • Keyless ignition systems have re-introduced the rollaway hazard – a problem that was ostensibly solved in 1992, after the agency published a Final Rule requiring vehicles with automatic transmissions that have a Park position to have a key-locking system that prevented removal of the key unless the transmission was locked in Park or became locked in Park as the direct result of removing the key.

In a series of interpretation letters, the agency allowed the evolution of the current systems. For regulatory purposes, the agency permitted an invisible electronic code to be considered the “key.” Unfortunately, customers thought the fob was the key – because manufacturers called it the key. Automakers forgot to tell their customers: yes, you need the fob to turn the vehicle on, but it plays no role in turning the vehicle off. So you can leave your vehicle running with the fob in your pocket and go far, far, far out of range, and that engine will keep running. Only some manufacturers have implemented an automatic engine cut-off feature which shuts the engine down after 30 minutes, if the driver’s side door has been opened and closed.

As NHTSA neglected to think the whole thing through from the get-go, it has been stuck trying to rectify its mistake without causing Sturm und Drang in the industry. It hasn’t gone well. The 2011 NPRM clearly acknowledged the carbon monoxide and rollaway hazards. But the best solution it could offer was louder warnings, based on a platform lift standard that was not based in any human factors testing. (In fact, nobody did any human factors testing.)  

To date, the agency has collected some 105 keyless ignition complaints related to carbon monoxide poisoning or drivers mistakenly leaving their vehicles running (46) or rollaways (59); but we know that this happens much more frequently. 

We like this class action. It seeks injunctive relief to eliminate the carbon monoxide standard by compelling automakers to implement a software patch that will cut off the engine, as well as the recovery of drivers’ economic losses. It’s do-able and will prevent these deaths. And as NHTSA said in 1967, when it first compelled automakers to design key systems that did not allow drivers to leave their keys in the ignition: “This is an instance in which engineering of vehicles is more likely to have an immediate beneficial impact than a long-range process of mass education.” (Or warnings, in this case.)

In the meantime, journalist Mark Greenblatt of Scripps Howard has provided some excellent coverage. You can access it here:

Keyless ignition deaths mount as regulators and auto manufacturers slow to act

Class action lawsuit targets automakers for keyless ignition dangers

To read our previous coverage of this issue:

Another CO Smart Key Death… and what Happens when Smart Keys Collide?

Not So “Smart Key” Standard

NHTSA Opens Smart Key Compliance Probe

Stupid Tricks with Smart Keys

A Funny Thing Happened on the Way to My Car…

Federal Appeals Court Upholds Goodyear Sanctions

The Safety Record Blog has been most pleased to inform our readership, from time to time, of the skullduggery emanating from the corporate offices of the Goodyear Rubber Company. Goodyear has made quite name for itself as champion discovery hardball player – years-long production delays, withholding relevant documents, offering less-than-truthful testimony from corporate reps and lying repeatedly right to the judge’s face about the evidence in its possession. At last count, we were aware of seven tire cases in which Goodyear’s fine counselors were reprimanded, or ruled against, or sanctioned for playing fast and loose with the rules of evidence.

This week, the tire manufacturer’s dubious legal reputation was further cemented by a U.S. Ninth Circuit Court of Appeals decision affirming a lower federal court decision that imposed some onerous sanctions on Goodyear, led by then in-house litigation chief Deborah Okey, Basil Musnuff, formerly of Roetzel & Andress and formerly Goodyear’s national coordinating counsel, and local counsel Graeme Hancock of Fennemore Craig PC. The three-judge panel voted 2-1 to uphold U. S. District Judge Roslyn O. Silver’s $2.7 million sanction against the trio for months of refusal to acknowledge the existence of and turn over G159 tire testing documents in Haeger v Goodyear, and an order requiring Goodyear to file copy of her order in any G159 case initiated after November 2012.

Judges J. Clifford Wallace and Milan D. Smith, Jr., both Republican appointees, voted to affirm Silver’s order. Obama appointee Paul J. Watford wrote the dissent.

The majority found that it was “clear the district court did not abuse its discretion in concluding that Hancock, Musnuff, and Goodyear acted in bad faith in this litigation. The Sanctionees, throughout numerous discovery dispute filings and hearings, convinced the district court that Goodyear had produced all test data relevant to the Haegers’ claims. The district court noted that

“[i]n fact, at various points the Court became exasperated with Plaintiffs’ apparently unsubstantiated claims that additional information must exist.”

The ruling, filed on Monday, comes a dozen years after the crash that seriously injured Leroy and Donna Haeger, and with their passengers, Barry and Suzanne Haeger, when the right front G159 tire on their Spartan Gulf Stream Coach failed, causing a rollover. In the 1990s and 2000s, Goodyear had specifically marketed the G159 for Class A motorhome applications, even though it knew from testing that the tire design was prone to overheat on RVs that typically travel at greater than 65- mph speeds for extended periods. Predictably, G159 tires on RVs failed, injuring and killing motorhome occupants and taking center stage in the lawsuits that followed. The Haegers filed suit in 2005. Over five years of litigation with more than 1,000 pleadings, they settled the case in 2010. During the litigation, the Haegers’ attorney, David L. Kurtz, asked for all G159 internal testing but Goodyear only turned over compliance tests to the National Highway Traffic Safety Administration, showing that the G159 met federal standards and swore to Judge Silver that there was nothing else.

In June 2010, Kurtz learned from The Safety Record Blog about a $5.7 million plaintiff’s verdict in another G159 case, Schalmo v Goodyear. At trial, the blog reported, Schalmo’s attorneys presented Goodyear documents including internal heat and speed testing and failure rate data showing that Goodyear knew the G159 was improperly approved for 75 mph continuous highway use. Kurtz wrote to Musnuff to determine if Goodyear had withheld those tests in his case. Musnuff admitted that Goodyear had, but argued that it wasn’t obligated to turn over any more than its NHTSA compliance test results.

Silver, the Chief Justice of the Arizona District Federal Court, had a different opinion. In response to Kurtz’s May 2011 motion alleging discovery fraud, she painstakingly re-created the twisted trail of trial tactics going back to November 2006. After two years of litigation over the fraud allegations, with numerous hearings and 14 briefs filed by the Goodyear lawyers, Silver found that Goodyear had deliberately thwarted the discovery while presenting to the court a “dizzying array of misstatements and simple falsehoods” to cover up the existence of Heat Rise, extended DOT, crown durability, and the bead durability tests. She also found that Goodyear, if forced to acknowledge them, lied about what they indicated about the RV application for the G159. She noted that similar behavior had taken place in two other Goodyear G159 cases: Woods and Bogaert.

She ordered Kurtz to tally the value of his time over the five years of trying to get Goodyear to comply with his requests. Hancock, Goodyear’s local counsel, was ordered to pay 20 percent of the total and Musnuff and Goodyear were to split the remaining 80 percent. Silver ordered Goodyear to file a copy of her Order in any G159 case initiated after November 2012, suggested that Kurtz mount a separate legal action against the trio for discovery fraud. and hinted that their behavior would have unfortunate professional consequences.

Judge Silver determined the final amount of the monetary portion of the sanctions order to be $2,741,201.16, with $542,240.83 coming out of Hancock’s personal pocket and $2,192,960.93 from Musnuff and Goodyear. Both Goodyear and Hancock got supersedeas bonds, covering the sanction amounts, plus two years of interest, to obtain a stay of enforcement during appeal.

Kurtz said that the Haeger family has been waiting a long time for justice. Leroy Haeger who passed away in 2008, did not live to see the conclusion of the litigation; Suzanne Haeger who was in her late 60s when the crash occurred is now in her early 80s.

“She is still waiting for her trial,” Kurtz said. “This is all about doing the right thing. The Haegers didn’t understand how justice could be so evaded and they are thrilled to see the system function. After that long wait they are thrilled to see that firm guiding hand and that this conduct won’t be tolerated.”

The hour-plus of oral arguments before the Ninth Circuit, published last March, make for interesting viewing. (Watch  Leroy Haeger v. The Goodyear Tire & Rubber Co before the Ninth Circuit Court of Appeals.) Pierre H. Bergeron representing Goodyear argued that Okey couldn’t be held responsible, because she relied entirely upon Musnuff and Hancock – although her lawyer conceded that she “was not a potted plant” in the process. Hancock’s counsel, Andrew M. Jacobs, argued his client couldn’t be responsible, because he relied on information provided by Goodyear. And, Musnuff’s lawyer, Mark I. Harrison, argued that it was all Kurtz’s fault for not properly asking for the other tests in the first place.

Judge Smith appeared to be mighty disturbed by the record Judge Silver had compiled. Literally 10 seconds into Bergeron’s argument that there was no clear and convincing evidence that Okey acted in enough bad faith to justify those sanctions, Smith said: “Let me just stop you right there last night, I re-read Judge Silver’s documentation, I don’t think I’ve ever seen a more thorough recitation of facts in a contempt situation than what she did… lies, misrepresentations, failures to state, etcetera, etcetera, etcetera. At least speaking for myself, I respectfully suggest if your argument is the sufficiency of evidence you aren’t going to get very far with me.”

He later dismissed some of the defendants’ arguments as “sophistry,” and complained of an “epidemic” of these maneuvers used “by the big guys to beat up on the little guys.”

In Monday’s decision, the Appeals Court rebuffed Goodyear’s attempts to “argue that the district court abused its discretion in preventing Goodyear from passing the blame on to its attorneys,” or to argue the abuse of discretion “in concluding that Goodyear participated directly in the discovery fraud.” The appellate judges reminded Goodyear corporate representative “falsely testified during deposition that no additional tests were available beyond the High Speed tests that had been turned over to the Haegers; and Goodyear’s in-house counsel, Okey, maintained responsibility for reviewing and approving all the incomplete and misleading discovery responses.

Similarly, it found no cause to reject Silver’s order that Goodyear disclose its unethical behavior to future G159 litigants and calling her ruling “balanced,” “narrowly tailored, and imposes no sanctions beyond what is necessary to remedy what the district court properly perceived as an ongoing problem in Goodyear’s G159 litigation.”

Finally, the majority found that Silver had proceeded cautiously and fairly:

“The district court did not act as a prosecutor, but instead allowed the accused and accusing parties to file extensive briefs, and held extensive hearings to determine the truth of what had happened. It took great care in parsing and reducing the attorney fee claims of the Plaintiffs. The accused were granted full due process and afforded all the protections required in civil sanctions hearings.”

Kurtz says that the ruling will pave the way for the Haeger’s fraud case against Goodyear, Hancock, Okey and Musnuff. In May 2013, at Judge Silver’s suggestion, the Haegers filed a separate action alleging four counts of fraudulent misrepresentation, nondisclosure, concealment and negligent misrepresentation. Based on the facts of misconduct outlined in Judge Silver’s order, the suit zips right to punitive damages “to punish and deter defendants for their willful, outrageous and evil misconduct.”

Given the stakes – fines, and possible state bar association disciplinary proceedings against the individual lawyers — it seems likely that that the defendants will appeal the panel’s ruling and ask for a full review. Goodyear may have stopped making the G159 a dozen years ago, but the case against it and those employed in its defense, will apparently roll on.   

Prior Safety Record Blog stories on Haeger

A Bus Crash, Litigation, and a Surprising Result: Part II

Editor’s Note: A Bus Crash, Litigation, and a Surprising Result is a complex and extraordinary story involving crash deaths, corporate malfeasance, regulatory gaps and litigation that produced significant results – not just for the plaintiffs, but for public safety. Given the length necessary to do this story justice, The Safety Record has decided to publish it in two parts.  Following is Part II


Right about now, 8,000 churches, hotels, tour companies – the owners mid-sized buses outfitted and sold by Forest River Inc., of Indiana – should be readying the vehicle they bought to transport their parishioners, their guests, and tourists, for a repair that would make them safe to carry a full load of passengers and cargo. The remedies, ranging from the removal of seats to more robust tires to shoring up the bus’s suspension is part of a class-action settlement approved two months ago. But the discovery that mid-sized Starcraft XLT buses might be too heavy for the weight originally certified goes back even further, to a deadly crash six years ago, when a Louisiana church was devastated by the loss of two children – including a pastor’s daughter.

On July 12, 2009, the First Baptist Church of Shreveport’s youth group and six adult chaperones were bound for a week-long stay at a youth ministry summer camp, when the church’s 42-passenger 2007 Starcraft XLT International suffered a catastrophic tread separation, causing it to roll over one and a half times on Interstate 20. All 23 passengers were injured, two fatally. With no seatbelts to keep them in bus, Maggie Lee Henson, a sunny 12-year-old girl who dreamed of a career on Broadway, and Brandon Ugarte, 14, were thrown from the shattered panoramic windows and died of their injuries.

The aftermath of the crash was made that much more painful by the discovery that the church’s then-two-year-old bus might have been overloaded. Despite 42-seats and a large walk-in cargo area, the bus could not safely hold a full complement of passengers and their belongings. Overloading is a long-understood problem in certain vehicles, such as Class A motorhomes and 15-passenger vans. Loading a vehicle beyond its engineered capacity can stress tires to the point of failure, and negatively affect its handling, turning an over-steer maneuver into a rollover.

One year after the crash, the Henson family and other crash victims sued Forest River, the final stage manufacturer which added the bus body on a chassis built by Navistar certified to a certain weight capacity. An investigation by their attorney John Davidson discovered other church buses with the same problem. Depositions with company principles revealed the lack of engineering training among Forest River’s engineers, and a lack of proper equipment to accurately weigh its buses.

That meant that many Starcraft mid-sized buses had been modified – with too many seats or large cargo holds – beyond the Gross Vehicle Weight Rating (the fully loaded weight, of occupants, cargo and fuel) certified by the chassis maker. Instead of addressing the issue, Forest River put certification labels on their buses showing that they could hold no or little cargo – even though some would be overloaded with passengers alone.

In its defense, Forest River suggested that the First Baptist Church was at fault for failing to properly maintain the bus’s tires. But in December 2012, the bus-maker settled with the plaintiffs for an undisclosed amount and several months later, launched a limited recall to address the weight certification issue.

“It was something difficult and terrible,” says Maggie Le Henson’s father, Rev. John Henson. “But we can see some good that has come out of that – holding the bus company accountable. It’s a justice issue for us.  After the accident, Forest River was not being very transparent with us, and that created a bigger need to make sure these are off the road.”

Class Action Lawsuits Widen Recall to 8,000 Buses

The personal injury claims were followed by two class-action lawsuits filed by churches in Florida and South Carolina. A parishioner of the Church of Christ in Charleston, South Carolina had heard about the First Baptist Church crash from a friend who was an attorney. The Church of Christ also owned a Starcraft XLT bus, built for 34 passengers. When they checked the certification label, they noticed that the vehicle was not certified to carry any cargo.

In December 2011, as the personal injury cases proceeded, the Church of Christ filed a class-action lawsuit which asserted that the bus manufacturer had violated the federal Gross Vehicle Weight Rating certification and compliance requirements for buses manufactured between 2002 and 2007, when Forest River stopped weighing its buses by hand and switched to a weight-calculating software program. Specifically, the settlement said, Forest River had neglected to weigh the buses with a full tank of gas.

Their bus “was used pretty regularly every week,” says T. Christopher Tuck, a South Carolina attorney with Richardson, Patrick, Westbrook & Brickman, who represented the Church of Christ. “The concern they had was when they took these long road trips, they wanted to make sure they weren’t doing anything inappropriate. And, they had an obligation to act not just in relief for themselves, but to extend it to other churches that owned buses.”

In May 2012, a second church, New Mount Zion African Methodist Episcopal Church in Tallahassee, Florida filed a separate class claim, making the same allegations. Neither suit made it as far as class certification – the last, but key, step in the class-action process required so that a case may proceed and be resolved.

Forest River disputed the claims but agreed to settle the case in July “to avoid the time, expense, and uncertainty arising from protracted litigation.”  

The July 2014 settlement offered the same remedy extended to just 399 Starcraft XLT owners after the Henson case was resolved, two years earlier. Forest River agreed to contact more than 8,000 owners of Starcraft buses to determine the vehicle’s stated weight was actually its true loaded weight, with fuel, passengers and cargo. Then, either re-label the vehicle, re-certify the vehicle for GVWR and FMVSS compliance, or if necessary, modify the bus to bring it into compliance. The safety remedies included new tires, reinforced suspensions or the removal of seats. Again, Forest River agreed to reimburse the bus owner $1,500 per seat. 

Tuck says that the documents it obtained during discovery allowed them to accurately determine the number of buses that were impacted. The February 2013 recall served as “a template for how to resolve the broader issues.”

The settlement also required Forest River to notify the U.S. Department of Justice within 10 days of the final approval of the settlement. On August 4, Forest River notified that U.S. District Court in Charleston that it had notified NHTSA, the Department of Justice and states Attorneys General.

U.S. District Judge Patrick Michael Duffy approved the settlement on March 31.

“We’re pleased that the defendants agreed to do this without additional years of fighting about it,” Tuck says

Forest River Gets Sideways with NHTSA

In addition to allowing high school graduates to engineer buses, mis-weighing its products on gravel pit scales, and selling mislabeled vehicles to owners who had no idea that their buses could not safely hold a full complement of passengers and their luggage, Forest River was not fulfilling several of its safety notification obligations under federal law.

The Transportation Recall Enhancement, Accountability and Documentation Act of 2000, requires manufacturers to submit Early Warning reports with NHTSA identifying injury, death, warranty and property damage claims along with consumer complaints, field reports and light vehicle production data. EWR data is supposed to help NHTSA investigators detect emerging defect trends.

Forest River has been filing production data since 2000, but only filed property damage claims since 2013. The company reported no deaths and injury claims before the second quarter of 2014. Last year, Forest River reported injuries in two trailer crashes along with 5 deaths and 13 injuries in three bus crashes in Delaware, Texas and Missouri. It did not submit EWR reports for any of the nine deaths and 30 injuries in the two crashes that occurred in 2009. 

[The Safety Record has been reporting on the lack of EWR filings and NHTSA’s selective handling of noncompliance. See EWR: Elective Warning Reports – When Manufacturers Don't Report Claims and Elective Warning Reports Redux]

On September 30, about two months after Forest River notified the agency, NHTSA opened an Audit Query investigation into the company’s reporting practices. An agency review of its EWR reports showed that “Forest River has not provided NHTSA with any information regarding claims related to deaths and injuries involving the company's vehicles or any information regarding property damage claims, warranty claims, consumer complaints and field reports.” Further, the agency found that “Forest River may have failed to submit to NHTSA quarterly reports on the company's progress completing safety recalls,” and failed to comply with other recall-related requirements, such as not including the required language in its recall notices and not submitting recall-related communications to NHTSA.

In October, NHTSA sent Forest River a 10-page Special Order directing the manufacturer to explain its processes for identifying reportable EWR information in the past five years and any anticipated changes to its practices. It also required Forest River to report every death, injury, property damage and warranty claims, filed reports and consumer complaints for the last five years. The agency also demanded that Forest River provide copies of all communications to dealers, owner and manufacturers since July 1, 2009. NHTSA asked no specific questions about the July settlement agreement that expanded the 2013 recall.

NHTSA declined to comment on Forest River’s missing notice to NHTSA for the 8,000-bus recall, citing its practice not to comment on open investigations. A spokesman would only say that the agency has an open investigation into Forest River for a range of potential violations of the Safety Act, including failure to comply with recall requirements.

In late October, Forest River submitted its response to NHTSA. It included a table of recalls and responses to some of NHTSA’s questions about its corporate structure and officers. The manufacturers, however, said that it could not send NHTSA all of the missing reportable information by NHTSA’s deadline, blaming a “software failure.” Forest River asserted that it had hired a company to custom-design software that would automatically submit its quarterly EWR data, and had assumed that death or injury, property damage claims, consumer complaints, and warranty claims had been sent to NHTSA all these years.

It wasn’t until it received the Special Order that “Forest River learned that this software was not operating or designed properly. While the software had been designed to capture production information and warranty information, Forest River learned that neither function worked properly. Furthermore, contrary to Forest River's belief, the software had not been designed to capture information related to customer complaints or claims involving one or more deaths or injuries,” the company said in its formal response to the Special Order.

Forest River asserted that it was “taking immediate steps to rectify these reporting problems.” The company would create a new department to deal with its reporting requirements. However, the company could not reconstruct the past records “due to circumstances beyond its control.”

On November 19, NHTSA sent Forest River a demand rejecting its assertion that it could not provide complete responses to the agency’s questions:

“This is unacceptable. We note that previous to issuing the Special Order to Forest River, staff from NHTSA’s Office of Defects Investigation repeatedly informed Forest River that it appeared that Forest River was not meeting its early warning reporting obligations. A purported software malfunction has no bearing on Forest River's ability to provide the information requested by the Special Order. Forest River also offers no explanation for why it does not have available the documents sought by the Special Order,” wrote O. Kevin Vincent, NHTSA’s chief counsel.

NHTSA fined Forest River $126,000, the statutory maximum of $7,000 a day for each day it failed to supply answers after the November 1 deadline. In addition, the agency levied another $7,000 per day until Forest River submitted all of the requested information. 

There are no more filings in the public Audit Query file. And, as of early May, Forest River had not filed a Part 573 with the National Highway Traffic Safety Administration notifying it of the larger recall.

The Under Regulated World of Commercial Buses

Six months before the First Baptist Church crash, another 2007 Starcraft XLT suffered a fatal rollover crash. The 29-passenger bus was traveling on U.S. Highway 93, near Dolan Springs, Arizona, when the driver lost control of the vehicle, at 70 mph, causing the bus to roll over. Fifteen of the 17 passenger were fully or partially ejected; nine passengers and the driver were injured, and seven were killed in the January 30, 2009 crash.

The National Transportation Safety Board investigated the Dolan Springs crash, and concluded that it was caused by the driver’s failure to maintain control of the vehicle. But the report also underscored the lack of regulations around mid-sized buses and the disproportionately deadly consequences to their occupants in crashes. In a 9-year period, from 2001-2009, medium-size buses were involved in 83 fatal crashes, with 106 fatalities and 270 injuries. Compared to large buses, the occupants of medium-sized bus crashes were twice as likely to be killed in a crash. The NTSB’s analysis of large bus crashes found that 15 percent were fatally injured, compared to 31 percent in medium-size buses.

Buses are defined very simply in the regulations:  a motor vehicle with motive power, except a trailer, designed for carrying more than 10 persons. NHTSA regulations only subdivide this category by weight –buses that weigh less than 10,000 lbs. and buses that weigh over 10,000 lbs. Inter-city, shuttle or mini-bus, motor coaches and mini-buses over 10,000 pounds, that are not traditional school buses are subject to fewer occupant safety protections than passenger vehicles. The FMVSSs contain 22 standards on vehicle crashworthiness, and most exempt non-school buses with gross vehicle weight ratings over 10,000 pounds. In fact, buses and motorcoaches are only subject to three:  FMVSS 217, which establishes minimum requirements for window retention and release; FMVSS 205, which covers windshields and glazing; and FMVSS 302, which establishes standards for the flammability of interior materials.

Compliance with Federal Motor Vehicle Safety Standards really means very little for crashworthiness when it comes to buses. Not only are they subject to almost no standards, the benchmark for establishing loaded vehicle weights is out-of-date and significantly inadequate. Research by engineering expert Mark W. Arndt of Transportation Safety Technologies Inc. based in Mesa, AZ, has shown that the anthropometric data that forms the basis of loaded vehicle weight calculations does not reflect the size of today’s average American.

“If you think about the situations when vehicles are fully loaded – schools, team buses, limousines, 15-passenger vans rented at places where families go on vacation and these shuttle buses, it’s a real problem – particularly when talking about people being the main constituent of the load, because people are so much heavier than the standard requires,” Arndt says.

Medium-Size Buses Left Out of Rulemaking

The Motorcoach Enhanced Safety Act of 2012, a provision of the Moving Ahead for Progress in the 21st Century Act, required NHTSA to initiate rulemaking requiring large buses to be equipped with restraint systems. In November 2013, NHTSA published a Final Rule amending FMVSS 208 Occupant Crash Protection for each passenger seating position in all new over-the-road buses, and in new buses other than over-the-road buses with a gross vehicle weight rating (GVWR) greater than 26,000 pounds (lb).” The agency did not extend these protections to the occupants of mid-sized buses, because it did not have enough time to examine the issue, given the tight time constraints to publish a final rule imposed by the legislation:

We believe that a belt requirement for buses with a GVWR of 4,536 kg to 11,793 kg (10,000 lb to 26,000 lb) is an important issue, our understanding of which would benefit from a fuller discussion of related issues. We would like to consider more fully matters related to the current and future use of the buses, belt use, any technical issues, and the benefits and costs of a belt requirement. 

Similarly, a 2014 Notice of Proposed Rulemaking to establish a new standard to enhance the rollover structural integrity will only apply to large buses. The new standard would require new large buses to pass a test in which the vehicle is tipped over from an 800 millimeter (mm) raised platform onto a level ground surface. The performance requirements include sufficient survival space to restrained occupants and retention of seats, luggage racks and windows in rollover crashes. NHTSA exempted medium buses from its proposal because historically, crash data showed that they were involved in fewer fatal rollovers each year –an annual average of 1.3 rollover crashes, with 2.4 fatalities, compared to and annual average of  3.2 rollover crashes among buses over 26,000 lbs., with 11.4 fatalities per year.

But, the occupant protection capabilities of medium-size buses continues to be an issue for the National Transportation Safety Board. In 1999, the NTSB began to push for better bus safety standards. In that year, it recommended that NHTSA standardize its definition of buses to distinguish among multi-stage specialty buses, transit buses, and motorcoaches, both for the standards-setting and for crash data collection. Recommendation H-99-56 stated: “Cooperate with the Department of Transportation in the development of standard definitions and classification for each of the different bus body types.” The NTSB also issued a Special Report focusing on non-standard buses used for student transportation, including 15-passenger vans and “mini-coach” buses. The report pointed out that medium-sized bus crashes featured fatalities caused by ejection, and a lack of three-point belts for passengers.

More recently, in October, the NTSB submitted comments to NHTSA’s bus rollover docket, protesting NHTSA’s decision to exclude buses weighing less than 26,000 pounds. It criticized the agency for failing to account for these buses in its definition of a motorcoach, from Section 3038(a)(3) of the Transportation Equity Act for the 21st Century (TEA-21): “a bus characterized by an elevated passenger deck located over a baggage compartment.”

NHTSA Weight Standard Does Not Reflect Reality

Under the current federal certification requirements, the Gross Vehicle Weight Rating of a motor vehicle shall not be less than the sum of the unloaded vehicle weight, rated cargo weight and 150 pounds times the number of designated seating positions. As a result of his work for the plaintiffs in the First Baptist Church bus crash and the class action lawsuits, Arndt wrote three technical papers, including one published in SAE and another as part of the proceedings of ASME’s 2012 International Mechanical Engineering Congress & Exposition on passenger and cargo loads.

Arndt looked at the sources of occupant weight data used by NHTSA, the Federal Transit Administration and the Federal Aviation Administration to determine load limits. The current vehicle per-occupant weight standard is apparently based on the National Health Examination Survey for 1960-62, in which adult men and women were 168 pounds and 142 pounds respectively.

The Tire and Rim Association and Mid-Size Bus Manufacturers Association both have voluntary weight standards that account for occupant weight and cargo weight per occupant. The MBSMA’s recommended practice includes 25 lbs. of cargo per occupant and an additional 5 lbs. if overhead luggage racks are present.  The TRA’s recommendation for bus, truck and trailer tire selection puts occupant weight at 150 lbs. per person, and for inter-city travel buses, 185 lbs. per occupant at full capacity.

His analysis showed that “a median unclothed weight of at least 175 pounds would represent an equal male and female population of all race and ethnicity” in the U.S.

He also examined various scenarios in which mid-size and large buses combined with different occupancy rates could produce overloading. In docket comments to an June 2012 FTA rulemaking, the Mid-Size Bus Manufacturers Association demonstrated that its members understand the consequences of overloading: “NHTSA has indicated that the Agency considers it to be a safety defect for a manufacturer to produce a vehicle that would be overloaded by design in carrying it's (sp) intended payload,” it said..

Yet, Arndt’s modelling showed that in some cases, mid-size buses would have to have empty seats and assume a per-occupant weight average well below the 150-lb. standard to lower the over loading risk to less than 50 percent. And the net weight of the cargo and how and where it’s distributed are also factors in overloading, he says. Airlines weigh individual luggage each flight. Shuttle buses operators use no such system. In the class action, all four representative vehicles that Arndt weighed, which ranged in capacity from 15 to 43 seats, was overweight in some capacity – just using the federal standards.

“If I added in the real weights of adults or even high school students, there was a good chance that the fully loaded weight in the higher-capacity buses could be thousand pounds overweight,” he says.  

“It comes down to: What is the straw that breaks the camel back? Is it one factor or is it a series of factors. People have not paid attention to how it is eating into their safety margins or affecting their design assumptions,” he adds. Forest River, in particular, was “very unsophisticated. They didn’t even own scales big enough to weigh the vehicles they were building. They didn’t have degreed engineers,” he says. “What scares me is: the factor of safety evaporates – it gets used up very quickly because of a series of oversights.”

NHTSA has done nothing to re-examine the occupant weight assumptions based on 55-year-old data. In March 2011, the FTA proposed a rulemaking to increase the per-occupant weight to 175 lbs., in an effort to define a fully-loaded weight that did not conflict with NHTSA’s. But the agency was forced to withdraw the proposal after the MAP-21 required FTA to conduct a comprehensive review of its testing program before establishing new standards.  

“We know in other transportation modes, such as the Coast Guard for ferries and the FAA for aircraft crashes have occurred because vehicles have been overweight, but although we can demonstrate a real deviation which has safety risk from an accepted standard, we don’t see a lot of crashes that seem to be associated with overweight buses.”

NHTSA has, however, researched the rollover risks of 15-passenger vans, and found that the rollover risk that increases dramatically as the number of occupants increases to more than ten. “In fact, 15-passenger vans with 10 or more occupants had a rollover rate in single vehicle crashes that is nearly three times the rate of those that had fewer than five occupants,” the agency noted in a May 2009 Traffic Safety Facts Research Note.  

The lack of regulatory interest in adjusting the weight assumptions of buses may lie in the small overall crash risk exposure – “vehicles are overloaded for a relatively small amount of time that in combination with a longstanding industry practice, the overall risk is low – it’s a rare occurrence,” Arndt says.

For Rev. John Henson that risk appears omnipresent – and not so rare. Six years after his 12-year-old daughter Maggie Lee died in a bus crash, Henson is still on high alert for a church bus that could be hauling more than it can handle.

"Every day on the interstate, I see buses that look a lot like the bus in our crash and if I see the name of the church, I will try to call them and tell them: be sure you look at the weight. Does your bus have seat belts? Churches are starting to become aware because insurance companies are reluctant to insure them. They don’t want have anything to do with church transportation and that says a lot about the lack of trust and care in the bus company.”

Sometimes, if he spots a bus in a gas station, he’ll pull in to chat with the driver about everything he has so excruciatingly learned about the failures of suspension systems and windows in bus crashes and the possibility of overloading.

“Usually the reaction is: ‘Oh, I’m just the driver. I didn’t know about that.’ ”

[A Bus Crash, Litigation, and a Surprising Result: Part I ]

A Bus Crash, Litigation, and a Surprising Result: Part I

Editor’s Note: A Bus Crash, Litigation, and a Surprising Result is a complex and extraordinary story involving crash deaths, corporate malfeasance, regulatory gaps and litigation that produced significant results – not just for the plaintiffs, but for public safety. Given the length necessary to do this story justice, The Safety Record Blog has decided to publish it in two parts.

Maggie Lee Henson was on her way to do a week’s worth of good deeds when she was fatally injured in a bus crash in July 2009. But, she hasn’t stopped yet. After three weeks in a coma, her parents, Rev. John and Virginia Henson said their goodbyes and donated her organs to two donors. Every autumn, people celebrate her October 29th birthday by collecting canned food, or holding a book sale or a charity ball game in her name. Maggie Lee for Good – a day of good works – has become a tradition in her hometown of Shreveport, Louisiana and beyond.

The death of Maggie Lee Henson, a 12-year-old who always stood up for the underdog, and the litigation that ensued helped spur significant and long-lasting changes. In 2013, the deadly crash led to a small recall to address an overloading defect. On March 31, the U.S. District Court in Charleston, South Carolina approved a class-action settlement in which manufacturer Forest River agreed to recall and remedy 8,000 medium-sized buses that could be dangerously overloaded due to improper weight ratings.

“It’s a better world if it’s a safer world,” Rev. Henson says. “I don’t know if I can summarize [her legacy]. It was a terrible, terrible thing, and while we don’t believe God caused it to happen, God has helped us bring some good from it. Maggie Lee lives on in so many ways. She was a very selfless person – even at 12 years of age – for her to be able to achieve some justice – she would have approved.”

Over the six years the Henson case has unfolded, the issue at its heart – the discovery of buses that could not safely carry a full load of people and cargo – marketed to unsuspecting church groups, schools and tour companies, however, remains unresolved. Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support can strain tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants.
NHTSA has tried to address the dangers in Class A motorhomes and 15 passenger vans. In 2008, the agency responded to a series of tire and weight-related RV investigations and recalls with an amendment to Federal Motor Vehicle Safety Standard 110 Tire Selection and Rims requiring motorhome manufacturers to affix in a prominent place labels showing the weight of the fully loaded vehicle, including water, the occupants and cargo and the seating capacity of the vehicle based on the number of seat belts. In the case of 15-passenger vans, NHTSA has never addressed the issue via regulations or defect investigations. Instead, it has issued numerous Consumer Advisory warnings to motorists about the dangers of overloading 15-passenger vans.  
But medium-sized buses operate in a regulatory gray area, even as their popularity grows. A report by the National Transportation Safety Board notes that each year, about 10,200–13,600 units are produced – mostly for municipal para-transit. But 20 percent are sold to churches, schools. Hotels, rental car, tour and charter bus companies buy the rest.
“According to representatives of the United Motorcoach Association (UMA) and the ABA, medium-size buses are a growing trend in the passenger transportation arena due to their ability to generate high revenues, their lower retail costs as compared to motorcoaches, and their passenger capacity,” the NTSB report said.

And most churches, looking for affordable transportation, have little awareness of the dangers of overloading their buses, Rev. Henson says.

“There’s a lack of knowledge,” he says. “These churches and schools buy them and they don’t really know what they bought. Churches are starting to become aware because insurance companies are reluctant to insure. They don’t want have anything to do with church transportation. That says a lot about the lack of trust and care in the bus companies.”

The case has laid bare the gaps in the federal safety standards governing medium-size buses and woefully out-of-date weight allowances for occupants. Finally, the litigation has touched off a federal investigation into Forest River’s failure to meet its safety obligations in myriad ways. The company is currently accruing a $7,000 a day debt with the National Highway Traffic Safety Administration for not responding adequately to an investigation into its compliance with a host of auto safety and recall requirements.

Forest River has denied that overloading was a factor in any crash, and says that its reporting failures were due to a software error. In a May 15 letter to The Safety Record, Forest River reiterated a defense it made to NHTSA on its high standards and operating practices:

“Forest River has a long history of dedication to safety and quality. This dedication can be seen throughout Forest River's cutting-edge business practices. For example, Forest River has developed an innovative Pre-Delivery Inspection ("PDI") program. Under this program, each and every vehicle Forest River manufactures is extensively tested and examined at a state-of-the-art PDI facility to ensure its vehicles are of the highest quality. As a result of this comprehensive PDI program, Forest River has one of the lowest percentages of warranty claims in the industry. On a related point, Forest River's bus divisions have received perfect scores through Ford Motor Company's Qualified Vehicle Modifier Program. To Forest River's knowledge, it is the only company to receive such a score.”

Uncovering the Starcraft Weight Problem

It was Sunday morning when Henson and other members of the First Baptist Church youth group and six adult chaperones boarded the church bus, a 2007 Starcraft XLT International 3200, a Forest River brand. The group was headed to Macon, Georgia to attend a Passport camp, a youth ministry program that weaves traditional camp activities with aid to impoverished communities. Later that morning, the left rear tire of the 42-seat Starcraft bus suffered a catastrophic tread separation, prompting a loss of control that caused the bus to roll over one and a half times. The Starcraft came to rest just off of Interstate 20 in Lauderdale County, Mississippi. Henson, Ugarte and at least three others were thrown from the bus’s large panorama-style windows, most of which had disintegrated.

Two were killed. Henson died of head trauma after three weeks at the University of Mississippi Medical Center. Brandon Ugarte, 14, died while being airlifted to the hospital. In total, all 23 passengers were injured to some degree. Among the severely injured were Olivia Brubaker, 13, Lindsey Johnson, 17, Chase Johnson, 14, Sarah Smith 12, and adults Kyle Kelley, and Jason and Sara Matlack.

This was the second deadly rollover crash involving a Starcraft XLT bus in six months. On January 30, 2009, a 2007 Starcraft 29-passenger bus, carrying the driver and 16 passengers rolled over, killing seven. Nine passengers and the driver were injured. The bus was traveling northbound on U.S. Highway 93, near Dolan Springs, Arizona, when the driver lost control of the vehicle, at 70 mph. The bus yawed, crossing the northbound lanes, before causing it to rollover one and a quarter times before coming to rest on cross the southbound lanes; 15 of the 17 passenger were fully or partially ejected. The National Safety Transportation Board investigated the Dolan Springs crash. Its 2010 report noted the lack of regulations governing medium-size buses and their “limitations….in retaining and protecting passengers during rollovers.”    The board did not consider the potential for overloading and attributed its cause to the driver’s failure to control the vehicle.

In a statement to The Safety Record, Forest River said: “There was no indication or finding by NTSB that the StarCraft bus had exceeded or came close to exceeding its gross vehicle weight rating at the time of the accident. Likewise, the NTSB found no evidence to believe that the design or manufacture of the StarCraft bus was the probable cause of the accident.”

The victims sued Forest River, which eventually settled the personal injury claims.

John Davidson, a Jackson, Mississippi attorney, who represented several of the victims and their families in the Henson crash, noticed an issue with the weight and configuration right away.

“It looked odd. A third of the bus was behind the rear axle. One thing that stood out when we were looking at certification label – you had a 42-seat bus with a huge walk-in cargo compartment, but the cargo label indicated that it could only hold 60 lbs.,” Davidson recalled. “The entire bus loaded could only hold 60 lbs. of cargo. Our immediate suspicion was that the vehicle was too heavy for the chassis.”

By regulation, Starcraft buses are multi-stage vehicles, meaning several manufacturers have a hand in the final product. The chassis is built by auto and truck makers, such as Chevrolet, Ford and Navistar. Final stage manufacturers, like Forest River, install the bus body on the chassis, outfit it seats and amenities such as luggage racks and release it into the marketplace. There may also be an intermediate manufacturer that makes modifications, such as cutting the chassis in half and lengthening the frame rail to make it bigger.

For example, the Starcraft bus that crashed in Dolan Springs was a 2007 Chevrolet two-axle, rear wheel drive C-5500 Series chassis, manufactured by General Motors and delivered to Starcraft, in October 2006.

The Starcraft bus owned by the First Baptist Church of Shreveport, La. was built on a Navistar chassis that had been cut in half and extended to make the bus longer. Frame rails were also added to the rear of the bus to extend it even further for a cargo room.

The chassis maker may certify that the incomplete vehicle is rated for a certain weight and in compliance with Federal Motor Vehicle Safety Standards, such as those related to braking. But, the final stage manufacturer may make modifications to the vehicle that invalidate those original compliance certifications, like lengthening the chassis, changing the brake lines or otherwise altering the vehicle to add enough weight to exceed the chassis-maker’s Gross Vehicle Weight Rating (GVWR the maximum operating weight including the vehicle's chassis, body, engine, engine fluids, fuel, accessories, driver, passengers and cargo) or the Gross Axle Weight Rating (GAWR the maximum distributed weight that may be supported by an axle of a road vehicle.) A multi-stage bus loaded beyond the capacity of its weight or axle ratings can negatively affect the vehicle’s braking, handling, suspension and tire performance.

In both cases, Starcraft used the original manufacturer’s compliance certifications to assert that the vehicle met government safety standards and was fit for commerce.

It took a year – just beating the Louisiana statutory deadline – before the Hensons and other crash victims brought suit against Forest River, the First Baptist Church, and others. Rev. Henson feared that the emotional strains of a lawsuit that might also fray his relationship with his employer, who would have to be a defendant under state law, and community.

“It was complicated. I was naming two of my colleagues,” Rev. Henson said of the lawsuit. “And the most difficult thing was knowing it would keep the issue alive and we’d be re-living that pain.”

As part of the accident reconstruction, Davidson wanted to know what the First Baptist Church’s bus actually weighed, but the vehicle was so structurally compromised that they couldn’t get an accurate figure. Davidson approached Starcraft for help in locating a similar bus, but Starcraft told him that there wasn’t another bus exactly like it.   Davidson caught a break when the church’s lawyer found a fax from the bus retailer containing a hand-written note indicating that the First Baptist Church of Washington, North Carolina had ordered a virtually identical bus. Davidson enlisted Rev. Henson to persuade his colleague Pastor James Moore to let them examine his church bus.

In the summer of 2010, Davidson and his expert Mark Arndt flew up to Washington and found the bus’s twin – a 42-seater with a large over-hang behind the rear axle. But, the certification label on this bus was even stranger – its cargo rating was blank.

“It had so much weight on the back it could have done a wheelie. It was a ridiculous-looking vehicle –trying to do too much with too little,” Davidson recalled.

When Davidson weighed the North Carolina bus, he found that with just the passengers, it exceeded the vehicle’s GVWR and did not comply with federal regulations. Davidson knew he had to inform the church.

“We were just shocked,” said Pastor Jimmy Moore. “We had been looking for a vehicle and we did our homework. We looked at fuel efficiency; we looked at transmission and engine reliability. But safety was at the bottom of the list, because we thought that anything we bought would be safe.”

His church hadn’t yet fully loaded its Starcraft bus – still fairly new at the time – to capacity, but eventually it would have – and, Pastor Moore says, the bus would have been overloaded. “You could have 42 people on the bus, but they would have to weigh less than 100 pounds each. There’s no way we could put 42 normal people on the bus.”

As they examined the tire information tag on the door frame, the church also discovered that the OEM tires on the bus did not match the indicated tire size. And, while the tires originally fitted to the bus were larger, Moore says, “as consumers, we had no way of knowing what the proper inflation rate actually was.”

Pastor Moore contacted Starcraft to advise them of the weight issue. The company first offered to reduce the capacity of the bus, but the First Baptist Church wasn’t interested in making its bus less useful. Then, Starcraft offered a silent recall – it would give the church a loaner bus, while it retro-fitted the church bus with a tag axle – a third axle behind the rear axle used to accommodate and spread the vehicle's weight. Starcraft would have the Bosch Automotive Proving Grounds conduct a FMVSS 105 brake test. Starcraft would then re-certify the bus and place accurate certification stickers on the vehicle and exchange buses. The manufacturer also required the church to sign a non-disclosure agreement to prevent it from telling anyone about the safety repair.

“We did not sign that, and we could not sign that in good faith,” Pastor Moore recalled. “They gave us a little run around, but in the end, they did not they did the retrofit and did not require us to sign it.”

In April 2011, after Starcraft returned the modified bus to the First Baptist Church of Washington North Carolina, Davidson’s team tested the fully loaded bus and found that it was compliant with the regulations, with the weight better distributed and the axle weight ratings accurate.

This test formed the basis for the case against Forest River. The victims in the Georgia crash did not allege that the Starcraft bus was overloaded at the time of the incident. The plaintiffs were prepared to argue that that had Forest River paid attention to the true fully loaded weight of the vehicle it would have added a tag axle to support it, as it did to the North Carolina Church bus. The extra axle would have made the bus legal to operate, distributing the load and preventing the rim from contacting the ground causing the bus to roll. In short, the accident would not have happened if the bus had been originally built to the required Federal Motor Vehicle Standards.

Later, Davidson’s depositions of Forest River’s corporate representative found that Starcraft’s head engineer had no more than a high-school education, and in fact, no one in Starcraft’s engineering depart had an engineering degree. Nor did the manufacturer have an industrial scale to weigh its vehicles. Instead, Forest River had been determining the weight of its finished buses by weighing them manually. Staff would drive them to a nearby a gravel pit and using the gravel pit scales to get an unloaded weight.   

Forest River said that discovery also showed “that within about two months of the accident, the bus tires were noted during a service interval to have been underinflated by 30-40 PSI, raising questions about the maintenance and the condition of the tires at the moment of the accident.”

None of those issues were raised at trial, because the case in December 2012 for an undisclosed amount.

A Recall follows the Settlement

Forest River, however, was now concerned about the weight issue. In a letter to The Safety Record, Forest River explained: “In early 2013, in the course of performing its own investigation of the theories set forth in the complaints, Forest River determined that if fuel weight were to be considered in calculating the unloaded vehicle weight, approximately 399 StarCraft Model XLT buses were potentially noncompliant.”

On February 26, 2013 Starcraft filed a Part 573 Notice of Defect and Noncompliance. Although each manufacturer is required by law to provide a detailed chronology of how it discovered the defect or noncompliance, Starcraft did not mention the litigation, the crash, the injuries or deaths. It merely stated that “a warranty claim” prompted it to manually review XLT units built from 2004 through 2009.  Forest River said that it reported the “potential noncompliance,” and “following consultation with NHTSA officials, an amended report was submitted.”  

Forest River determined that XLT buses originally certified for 19,500 lbs. would have to be recertified to a GVWR of 20,500 pounds “to accommodate certain load conditions.” Starcraft offered to install additional lead springs to the rear suspension, upgrade the original four rear tires to 225/70R19.5 G rated tires, re-labelled the buses correctly. Other units would have seats removed with a reimbursement of $1,500 per seat.

Manufacturers are required to send to NHTSA six quarterly reports over 18 months charting the progress of the repairs. According to the public record, Forest River filed only four reports. By July 2014 – as it was signing a settlement agreement with other Starcraft bus owners expanding the recall 20 times the size of first population – it reported to NHTSA that it had remedied 248 – less than two-thirds — of the 399 buses. 

The effects of the 2009 crash that killed Maggie Lee Henson however, had not stopped rippling. The Starcraft bus weight problem was now the centerpiece of civil litigation from two Florida churches. And the settlement would multiply Forest River’s troubles on a new legal front with federal regulators.

“Those families, that had never brought a lawsuit in their lives, had the courage to take on the criticism and do what was right in the search for the truth,” Davidson says of the case. “Through their efforts, we were able to determine many other buses had safety related defects like theirs that are now in the process of being corrected. It is a living legacy – Maggie Lee and Brandon recall may have saved the lives/injuries to others their families will never know, other children just like theirs. They told me they would not pursue this litigation unless it could effectuate a change. I believe they did.”

Tomorrow, The Safety Record Blog will continue the story of a 2009 medium-size bus crash that had far-reaching consequences in Part II of  A Bus Crash, Litigation, and a Surprising Result.


Taking on Takata

Lately, the National Highway Traffic Safety Administration has come in like a wrecking ball, knocking aside manufacturers’ excuses for delaying recalls and other sundry sins with multi-million dollar fines – and now aggressive legal action.

Wednesday, the agency filed – apparently – its first-ever Preservation Order “requiring Takata to preserve all air bag inflators removed through the recall process as evidence for both NHTSA’s investigation and private litigation cases. The order also ensures NHTSA’s access to all data from the testing of those removed inflators,” according to an agency news release.

The move represents an about-face for NHTSA. Last month, it filed statements of opposition to two South Carolina plaintiffs’ emergency motions to preserve evidence in civil liability cases, Angelina Sujata v. Takata and Robert E. Lyon v. Takata. The Sujata case alleges that an exploding Takata airbag inflator sprayed metal shards in the 18-year-old driver. The Lyon case alleges that a Takata inflator caused the airbag to deploy too aggressively. Both plaintiffs are represented by Kevin R. Dean, of Motley Rice, in Mt. Pleasant, South Carolina.

On February 15, 2008, Mary Lyon Wolfe, 57, was at the wheel of her 2002 Honda Accord, when she veered off the right side of the roadway and it a culvert, a mailbox and a tree before coming to rest in the yard of a home on Griffith Drive in Orangeburg. The suit alleges that the vehicle’s frontal airbags delayed deployment and then burst forward with sufficient force to cause serious head, neck and chest injuries. Wolfe was airlifted to Palmetto Richland Memorial Hospital, where she died of her injuries 17 days later.

Sujata was seriously injured on March 2, 2012, when her 2002 Honda Civic rear-ended another driver who came to an abrupt stop on the highway. The driver’s air bag deployed and the inflator exploded, spraying shrapnel into her chest and face.

“I’m very pleased by NHTSA’s preservation order,” Dean said. “It has accomplished the underlying basic request that we were making which was primarily to preserve 10 percent of the returned inflators in each state for testing and analysis by our experts.”

Preservation orders are garden variety motions in products liability cases, but the issue took on an urgency in early January. Dean discovered that LKQ, which bills itself as North America’s largest online provider of recycled original equipment auto parts for cars and light-duty trucks, could not sell him any inflators, because Takata had an agreement to purchase LKQ’s entire inventory. The supplier is gathering some 12,000 inflators a day from recalled vehicles nationwide, and subjecting most of them to destructive testing.  Dean feared that Takata could destroy all of the Florida inventory during testing, leaving none or few for civil litigants to test independently.

Alarmed, Dean, filed an emergency motion for a preservation order on January 9. Honda, Takata and NHTSA immediately objected. The defendants argued that there was no real emergency or threat that evidence would be destroyed. Further, they argued, it would interfere with the multi-district litigation, which is currently in its initial stages.

NHTSA argued that Dean’s effort to preserve some inflators for testing and analysis would interfere with its ongoing investigation into the root cause or causes of Takata airbag inflators malfunctions. The problem appears to be multi-faceted, caused by some combination of manufacturing errors, including improper airbag seam welds on the inflator assembly; the use of ammonium nitrate, a volatile chemical compound which can degrade over time; and potentially defective design of the assembly that does not fail in a controlled manner when it’s over-pressurized. 

In its January 20 statement in the Lyon case, NHTSA said that a preservation order “would put an abrupt halt to Takata’s ongoing testing efforts essential to NHTSA’s safety investigation. Moreover, this order would require the delivery and preservation of hundreds of thousands of recalled Takata inflators at a single location, and thereby would prohibit any transfer of inflators to other entities for further testing, whether carried out by vehicle manufacturers or NHTSA itself. Without readily available access to inflators, including the ability to oversee destructive testing, NHTSA is unable to conduct an effective investigation….This testing will, NHTSA believes, enable the agency to identify the scope of affected vehicles and the root cause of Takata inflator ruptures and to ensure that the recall remedy is robust and effective. This testing is thus a critical element of the agency’s overall mission to protect public safety.”

As Dean pointed out in his reply, NHTSA itself had expressed its doubts about Takata’s honesty and organizational skills. In his November 20 testimony before the Senate Commerce Science and Technology Committee Hearings, Deputy Administrator David J. Friedman conceded:

“[I]t’s been made clear to us they do not have good quality control and do not have good record keeping because further down the road, they had to update indicating they had not provided us with that information. That is one of the key reasons we are demanding under oath they provide us answers about all of these recalls. All of the tests they’ve done on air bags.”


“Senator, I’m not a lawyer, so I don’t know the exact meaning of probable cause. But I will say I don’t trust that they [the Honda and Takata Defendants] have provided us with [everything] . . . with—we know that they have not always provided the auto industry with accurate information of all the loss involved. We haven’t gotten the information we need. We’re looking into this. I have serious concerns and will hold them accountable based on the findings”

Dean’s emergency motion was denied, rendered moot by the MDL, still without a leadership team. But, he believes that the issue for civil litigants has not yet been totally resolved.

“I brought this to NHTSA’s attention because this was an important issue,” Dean says. “They began to understand and to ask questions, NHTSA took an unprecedented step, which should be applauded and is necessary, to make sure there is a preservation agreement and protocol. While NHTSA’s order addresses the important issue of collecting, organizing and cataloguing the inflators in a systematic manner, from a civil litigation perspective, I don’t believe the order addresses everything.”

Meanwhile, a consortium of 10 automakers that used Takata airbag inflators in their vehicles has hired Orbital ATK to conduct independent testing on Takata airbag inflators, under the supervision of former NHTSA Acting Administrator David Kelly, they announced today. According Orbital ATK’s website: “ATK expanded into the aerospace market with the acquisitions of Hercules Aerospace Company in 1995 and Thiokol Propulsion in 2001.” Morton Thiokol, readers will remember, was the NASA engineering contractor for the Space Shuttle Challenger that exploded in 1986, 73 seconds after the launch, killing all seven aboard. The explosion was traced to a failure of the O-ring seals for the solid rocket boosters. Although Thiokol engineers knew that the rings could fail at low temperatures, management, along with NASA made the decision to launch the space shuttle on Jan, 28, 1986, on a morning with unusually low temperature.

Last week, Chief Counsel O. Kevin Vincent informed Takata, which, up until recently had avoided the civil penalties, that it would be charged $14,000 a day – that’s the maximum $7,000 times two for separate Special Orders sent in October and November — for each day that it fails to provide an adequate explanation for some 2.4 million documents it has filed with the agency so far.

In looking at Takata’s EWR submissions, we notice that it looks as though there’s something else Takata forgot to give NHTSA. Honda’s already ponied up $70 million for failing to fulfill its EWR obligations.  But, under Transportation Recall Enhancement Accountability and Documentation Act regulations, component manufacturers are also required to submit death and injury claims. We know from Honda’s Part 573 submissions that it was informing the supplier of injuries as earlier as 2004. We know that Takata was named in some lawsuits. Takata has filed some EWR claims, but we see no EWR submissions that match up to any known deaths or injuries. In fact, there is but one airbag claim for a 2003 incident involving a Honda side airbag. The last time Takata submitted anything to the agency was in 2010.

Takata knew of no inflator claims? More fines to come?