Graco’s Perception Problem

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Leiana Marie Ramirez was three days shy of her second birthday, when she was burned alive, strapped in a Graco Nautilus child safety seat.

 On August 26, 2011, her mother, Samika Ramirez had been out running errands related to Leiana’ party – delivering cupcakes to her pre-school, shopping for Lieana’s birthday present. The pair was on the way home, southbound on Arroyo Seco Parkway in South Pasadena, when Samika felt her Nissan Altima swerve, and thinking she had a flat, regained control of her vehicle, stopped in the left-most lane and put on her flashers. The divided highway had no breakdown lane, just a narrow shoulder.

 Ramirez was about to call AAA, when another driver, who hadn’t noticed the stopped Altima, plowed into its rear end. The vehicle almost immediately caught fire. According to the police reports, Samika tried frantically to unbuckle her daughter, but could not release the harness. The flames engulfing her car were too intense, and onlookers pulled Samika Ramirez out of the car, while Leianna stayed behind. She witnessed her daughter’s death.

 More than a year later, the National Highway Traffic Safety Administration would open an investigation – still pending – that would eventually result in a recall of the Graco Nautilus and 17 other models for buckles that were so difficult to unlatch that some consumers complained to NHTSA that they had to cut the belt webbing to get their children out of the seat. And, from the beginning, Graco would concede that it was “keenly aware of the issue.” Indeed, it had collected more than 6,100 complaints about it.

 But Graco insisted that the inability to extract a child from the car seat was merely “a consumer frustration and a consumer experience that Graco has been working to improve.” To this date, Graco has not acknowledged that this defect led to a horrific death – not in its responses to the agency’s investigative information requests; not in its Part 573 Defect and Noncompliance Report and not in its Early Warning Reports. The company paid a big fine to the U.S. Consumer Product Safety Commission in 2005 for a long history of failing to report injuries and deaths. Even now, with the initial recall expanded and under a Special Order to answer all questions truthfully, Graco comforts its customers on its website:

 Graco can assure you there have been no reported injuries as a result of the harness buckles used on Graco car seats. We want to stress that our car seats are safe and effective in restraining children.  And, the safest way to transport a child is always in a car seat.

 NHTSA declined to comment on Graco’s stance, via a statement to The Safety Record:

 “Although Graco has submitted a defect notice in response to NHTSA’s recall request, our investigation remains open.  As such, the agency cannot discuss or comment at this time.”

 Attorney Christine Spagnoli, who represents the Ramirez family, says that Graco’s failure to acknowledge Leiana’s death will negatively affect the efficacy of the recall”

 “To me the issue is this: by putting on their website that there are no reported claims and by telling that to NHTSA, They are trying to dissuade people from getting new buckles,” says Spagnoli of Greene, Broillet & Wheeler, LLP. “This is a safety issue, and by saying something false to the public, they’re trying to save money, at the expense of kids getting hurt.”

 The Investigation

 The Preliminary Evaluation into Graco buckles opened in October 2012 with 25 complaints reported to NHTSA via their Vehicle Owners Questionnaire database, containing hypotheticals that echoed the Ramirez incident, like this one, filed with the agency in September 2012:

The Graco Nautilus car seat doesn’t unlatch properly from the harness buckle. The one in my husband’s car you have to push extremely hard and tug on the harness several times to release from the harness buckle. The same make/model in my car, the left clip in the harness buckle will not release at all. I had to have my child crawl out of the straps to get out of his car seat. If we were in an accident and/or the car caught fire, I would need scissors to pry my child’s restraints off of him. If I did not have scissors, it makes me sick to think what could have happened in this situation. There is a great chance my child would not have made it out of the vehicle alive. …(ODI 10475529)

The Graco Nautilus Samika Ramirez had purchased at BabiesRUs in 2010 was charred. But the metal components of the buckle survived the fire, and, like the woman who complained about only one side of the buckle releasing, the Ramirez’s blackened buckle shows one metal tongue side still engaged with the buckle housing. The Ramirez family filed suit against Graco in a California Superior Court three days after NHTSA’s Office of Defects Investigation opened a Preliminary Evaluation.

Graco has been using this basic buckle design since 2005, when it introduced the new car seat buckle, designed with supplier AmSafe. By 2009, many of Graco’s child safety seats, from infant to toddler seats used one of two designs the Signature Buckle Design and the QT Buckle Design.  Both are 5-point buckles with two tongues and a central release button. The QT Buckle release button features a pivoting button and must be depressed inward at the top portion of the red button in order to release the tongues. The Signature Buckle release button is a sliding button and must be depressed downward toward the crotch webbing in order to release the tongues.

In its response to the agency, Graco blamed its customers, who allowed food, drink and bodily fluids, such as vomit, to accumulate in the buckle housing, making it difficult for the button to release the metal tongues. Graco called the alarm that several parents had raised about the potential for disaster in an emergency situation as mere “frustration” and a “perception” of difficulty. The company, with AmSafe, developed a buckle cleaning procedure, which it planned to incorporate into the owner’s manual. Graco also blamed its customers for incorrectly unlatching the harness, and claimed that that the complaint rate was less than one percent of the population of seats.

“This represents approximately 1 person out of 1000 that believes the buckle is more difficult to unlatch than they believe it should be,” Graco wrote to the agency.

Unimpressed with Graco’s assessment, the Office of Defects Investigation bumped the Preliminary Evaluation to an Engineering Analysis on February 21, 2013. By then, the agency had collected a total of 128 complaints.

Its primary concern was that the malfunction of the quick-release mechanism created “an unreasonable safety condition in that the unlatching of the buckle and/or the extracting of the child would take an excessive amount of time, or may not be possible at all in a post-crash or other emergency situation where time is a critical factor. Additionally, First Responders or Good Samaritans, who are unfamiliar with the buckles operation or its sticking characteristics, also may not be able to unlatch the buckle.”

It rejected Graco’s “suggestion that a child can be removed through a still buckled harness, or that the car seat with the child still seated in it could be removed from the vehicle in a post-crash situation” as “unsustainable. In a post-crash situation, to remove an excited and agitated child through the still buckled harness takes time, a critical factor in an emergency situation, and may not even be possible in the event of injury to the parent or caregiver present in the vehicle.”

On March 18, ODI asked the agency’s Vehicle Research and Test Center (VRTC) to evaluate the buckles. Meanwhile Graco’s internal review of returned buckles included X-ray images and a “cleaning study of 168 buckles. The X-rays turned up nothing. The cleaning study showed that 56 percent of the returned buckles operated normally; 92 percent operated normally after a cleaning. This led Graco back around to its original stance: caregivers were allowing too much crud to get into the buckles, and customers who found it hard to unlatch were fooled into thinking so by the pivoting release button.

The agency was fairly livid. On January 14, 2014, it sent a rare recall request letter, demanding that Graco recall more than 5.6 million rear facing infant, convertible and booster seats. While the agency had received fewer than 150 consumer complaints, Graco had more than 6,100 consumer reports of buckles that were difficult to unlatch, and the complaint rate for the Signature buckle was actually more than 100 complaints per 100,000 child seats produced. (The QT3 had “a lower, but still significant problem experience,” but had been in service for less time.

In stark terms, the agency dismissed each of the Graco’s arguments.

It pointed out that Graco had made a series of moves to fix, and then rid itself of the troublesome mechanism. It completely phased out the Signature buckle in late 2011, and had modified the QT buckle in October 2012 specifically to address “ongoing” consumer complaints. By May 2013, Graco abandoned the QT3 buckle for a completely new buckle, supplied by Indiana Mills and Manufacturing, with a completely different design and was offering it as a replacement buckle.

It rebuffed Graco’s characterization of the problem being one of frustration and perception; or improper unbuckling procedures. The agency deemed the presence of food particles or dried juice as “completely foreseeable,” and insufficient to inhibit or prevent the buckle from its intended function as a “quick release device.”

Ultimately, ODI took issue with Graco’s view that there was no safety problem:

“In a post-crash or other emergency situation where time is the critical factor and where every second counts, a buckle that is stuck or difficult to unlatch can take an excessive amount of time to open, or it may not be possible to unlatch the buckle at all. Further, in a post-crash or other emergency situation it is unreasonable, and it may not even be possible, to extricate a child from the car seat, either through the still fastened harness or with the child buckled into the car seat, as Graco suggests can be done.  Graco’s ‘enhanced unbuckling procedure,’ is uncommon and not intuitive and should not be required to remove a child from a car seat. Additionally, first responders, good

Samaritans or anyone who is unfamiliar with the buckle’s operation or its sticking characteristics, do not have time to read an instruction manual when faced with an emergency. Graco’s suggestion that a child can be removed through a still buckled harness, or that the car seat could be removed from the vehicle in a post-crash situation with the child still seated in the car seat is impracticable. In a post-crash situation, to remove a crying and agitated child through the still buckled harness takes time, a critical factor in any emergency situation. Further, maneuvering the child through the harness assembly may not even be possible in the event of injury to the child, or to the parent or caregiver who is present in the vehicle. Additionally, some of Graco’s convertible car seats and booster seats are rated for children up to 70 pounds. It is unreasonable to assume that most drivers, particularly females, are able to lift a 70 pound child plus the weight of the car seat out of the vehicle.”

 The agency warned that failing to comply would initiate the next phase of enforcement – an Initial Decision.

 The Battle over the Recall

 Graco appeared fairly unfazed by all of the stern words. On February 7, it filed aNotice of Defect and Noncompliance to recall about 3.8 million convertible and booster seats, including Cozy Cline, Comfort Sport, Classic Ride 50, My Ride 65, My Ride w/Safety Surround, My Ride 70, Size 4 Me 70, Smartseat, Nautilus, Nautilus Elite, and Argos 70 models.

It declined to recall an additional 1.8 million rear facing infant seats, including the Snugride, Snugride 30, Snugride 32, Infant Safe Seat-Step 1, Snugride 35, Tuetonia 35, and Snugride Click Connect 40. 

And Graco employed all the weasel-words manufacturers like to use when they are reluctant recallers:

“While Graco and NHTSA have not reached an accord over the nature or severity of this issue, as a result of NHTSA’s investigation, Graco has agreed to submit this Part 573 Report in an abundance of caution.”

Four days later, the Division of Recall Management sent Graco the letter of The Safety Record’s dreams. Division Chief Jennifer Timian’s recall acknowledgement delivered a stinging rebuke, calling Grace’s Part 573 “seriously deficient in numerous respects.” Timian called Graco’s language and content “incomplete and misleading, to both the agency and consumers.” And, she pointed out that Graco’s minimizing was specially concerning, “because, as Graco is aware, many, perhaps a majority of owners, of Graco’s car seats have not registered their car seats and will not receive a Part 577 Owner Notification Letter from Graco. Publicity relating to the filing of the Defect Information Report will therefore be the only means by which many owners will learn of this safety recall.

Long and short of it, Timian told Graco to cut the crap. There was no “accord” to be reached between Graco and NHTSA – if you file a Part 573 Defect Information Report, you are, by regulation, confirming that a safety defect exists and while you are at it, 86 the qualifying statements – they have “no legal force or effect.”

(Readers may recall that NHTSA tried to excise such language from Part 573 with a new regulation in October 2012. But by October 2012, our hopes were dashed.  The manufacturers took umbrage, arguing Free Speech! And: If you don’t let us say that it’s not a recall, then we won’t recall at all. NHTSA folded. Perhaps they are tackling this one stinky Part 573 at a time.)

The description of the defect was wrongly characterized as a maintenance issue, even though the defect occurs during normal and foreseeable use of the seat, Timian wrote. Graco struck out again when it described that defect as “difficulty unlatching the buckle,” because some owners could not unbuckle it at all, she added.

Timian told Graco to try again, and do it right this time. The Safety Record would rate the second revised letter as a marginal improvement.

Oh, and those 1.83 million rear facing infant car seats with the same buckle that Graco isn’t recalling, well, we’ll see about that.  Both NHTSA and Graco have reports of consumers with rear-facing infant seats and buckles that will not unlatch, who also cut the harness straps to remove their child from the car seat. Graco never explained why those seats weren’t eligible for a recall. The EA remains open and NHTSA warned that it intended to proceed to an Initial [defect] Determination. Well Godspeed, NHTSA, full steam ahead!

On March 6, the agency sent a Special Order to Graco with another round of questions very similar to the first round of questions back in October 2012. Regarding reports involving a fire, crash, injury or fatality, it asked Graco to “provide a summary description of the alleged problem and causal and contributing factors and Graco’s assessment of the problem, with a summary of the significant underlying facts and evidence.” Graco told The New York Times about the death of Leiana Ramirez: “We did not find any evidence that the buckle involved in that accident was defective. The circumstances of that accident, as described in testimony given in that case, did not implicate the buckle, and we do not believe there is a connection between the Ramirez case and the current recall based on those circumstances.”

Its response was due on March 20.

It appears that there will no jetting to a Chicago airport hotel conference room, so that executive-to-executive, the agency can cut a useless deal that lets a manufacturer off the hook and keeps consumers as imperiled as ever – as the dearly departed Secretary of Transportation Ray LaHood and his sidekick former NHTSA Administrator David Strickland did with Chrysler over the Jeep Grand Cherokee and Liberty rear-impact fuel-fed fire problem.

Graco’s Failure-to-Report History

Graco’s refusal to acknowledge the death of Leiana Ramirez in its responses to the Office of Defects Investigation appears to be of a piece with past company practices.

Under the Early Warning Reporting requirements, Graco is obligated to report “any claim against and received by the manufacturer. Claims are merely requests or demands for relief related to a crash, the failure of a component or system, or a fire originating in or from a vehicle. These claims are unverified allegations. They may help NHTSA identify a possible defect, but in and of themselves the claims are not evidence of a defect,” according to the section of NHTSA’s website devoted to EWR.

Specifically, child seat manufacturers must report within 30 days, such claims received within five years of a seat’s date of manufacture. Even if the claim does not have sufficient specificity initially, manufacturers are required to report it, and amend that report later. Graco officially acknowledged that it received the Ramirez lawsuit in February 2013. However, according to a search of NHTSA’s EWR database, Graco has filed no death and injury claims since the first quarter of 2012.

Nor has Graco apparently reported a serious injury claim emanating from a case pending in Michigan. Mia Jermano, then 4 years old, was secured in a Graco TurboBooster seat on October 26, 2010, in the rear seat of a 2010 Lincoln MKX when it was in a frontal collision. Jermano’s booster seat allegedly deformed, and the girl rolled out of the belt. She suffered catastrophic injuries and is now a quadriplegic. The case was originally filed in Pennsylvania in September 2012. (Graco petitioned to move the case to Michigan last year. According to attorney Douglas Gentile, who is representing the Jermano family, the TurboBooster had been manufactured in November 2009, about a year before the crash and three years before the lawsuit was filed, making this a reportable injury claim under the EWR regulations.

Under the TREAD Act, a violator of any reporting requirement could face a civil penalty of up to $5,000. “A separate violation occurs for each motor vehicle or item of motor vehicle equipment and for each failure or refusal to allow or perform an act required by any of those sections. The maximum penalty under this subsection for a related series of violations is $15,000,000,” the Act states. The Safety Record asked NHTSA about its policies to ensure that manufacturers are reporting as required, and the procedure when it discovers that at manufacturer did not report a claim under EWR. The agency told us to FOIA for that information. Although we complied, the agency failed to produce anything. In the last five years, the agency has twice fined manufacturers for untimely EWR submissions in conjunction with untimely recalls. Last July Volvo was fined $1.5 million for six untimely recalls from 2009-2013, and untimely submissions of EWR reports and TSBs. In January 2009, Italian motorcycle manufacturer Piaggio was fined $100,000 for untimely recall and EWR submission.

In 2005, Graco paid a $4 million fine to the U.S. Consumer Product Safety Commission “for failing to inform the government in a timely manner about more than 12 million products that posed a danger to young children nationwide,” according to a CPSC news release. The allegations centered on defects affecting 10 different products – infant swings, toddler beds, collapsible play yards, strollers, high chairs and infant safety seats that, for example, collapsed while in use or broke apart, sending babies to the ground. The consumer complaints covered a ten-year period from 1994 to 2004. While some of the reported injuries were minor, the Settlement Agreement documented five deaths caused by infant swing designs that allowed babies to fall out entirely, or be caught by the head, neck or arms. In addition, the agreement referenced finger amputation injuries caused by Graco Pack N’Play portable play yards. Graco, according to settlement, waited as long as four years before reporting these incidents to the CPSC – if it reported them at all.

Then, as now, Graco did not admit any wrongdoing. For the princely sum of $4 million, it denied that its products posed any safety hazard, or that it had committed any reporting violations:

“In settling this matter, Graco does not admit any fault, liability, or statutory or regulatory violation.”