Randy Barnhart

Auto Electronic Control Systems and Your Safety

As a long-time products liability lawyer fighting the auto manufacturers for negligently if not also knowingly allowing their defective products to cause their loyal customers serious personal injury, I was interested in the recent statement by the National Highway Traffic Safety Administration (NHTSA) regarding a report on electronic control systems released by the National Academy of Sciences:

NHTSA commissioned the panel of National Academy of Sciences appointees to comprehensively review electronic control systems. While the auto manufacturers quack "safe, safe, safe," NHTSA stated that it needs to better understand the causes of unintended acceleration in passenger vehicles. So there is more than one cause? There is more than the supposed cause advertised by the manufacturers - lead foot on the gas pedal?

On its website, NHTSA states: The agency "has already taken steps to strengthen its expertise in electronic control systems while expanding research in this area — and the agency has considerable experience dealing with vehicle electronics issues in its research, rulemaking, and enforcement programs. But, NHTSA will continue to evaluate and improve every aspect of its work to keep the driving public safe, including research to assess potential safety concerns and help ensure the reliability of electronic control systems in vehicles. The agency will also further refine its strategic plan to address any potential technical and policy issues."

Potential safety concerns? There is nothing potential about the facts of electronic systems going haywire. Potential technical and policy issues?

Update - February 3, 2012: see this article, Electronics in Autos Pose New Safety Issues, Scientists Say, in the Insurance Journal.

Listeria Liability - The Denver Post

State laws vary governing who has liability for bad products. Some states, such as California, allow more companies in a food chain to be targets for claims, with few limits on awards.

Colorado law makes it harder to sue stores in addition to the producer where the defect started, attorneys said. Plaintiffs must show a retailer contributed to the flaw in the food.

In the listeria cases, attorneys may try to show retailers contributed by not demanding tougher farm audits, by failing to test for pathogens themselves, or by failing to wash the fruit one more time before sale.

via www.denverpost.com

Target Recalls Children's Lamps - Laceration and Fire Hazards

Hazard: Lamps can overheat, causing the adhesive inside the lamp socket to melt and migrate into the bulb area of the socket. The cooled glue can adhere to the light bulb base and make the bulb difficult to remove which can result in a broken light bulb, posing a risk of laceration to consumers. Melted flammable glue that migrates onto the electrical components of the lamp poses a risk of fire.

Incidents/Injuries: Target has received six reports of glue on the lamp socket melting and migrating into the bulb area of the socket. No injuries have been reported.

via www.cpsc.gov

Defective Product Recalls - Watch and Learn

Junk Science Versus Junk Doubt - Part 1

Lawyering is not just reading cases, briefs, contracts and other documents. My practice invites, if not compels, me to remain abreast of wider social, political and regulatory policies which impact not only the public, but the specific rights and rules implicated in a lawsuit for personal injury or death arising from defective products, whether it be defective autos and tires or dangerously defective drugs and workplaces.

Hence, the recent book, Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health, by David Michaels, {amazon, barnes&noble} is important and should be widely read and discussed. Consider the Table of Contents from the book, which shows the range and depth of the social and political problems caused by the self-interested manufacture of wrongful doubt:

Introduction: "Sound Science" or "Sounds Like Science"?
The Manufacture of Doubt
Workplace Cancer before OSHA: Waiting for the Body Count
America Demands Protection
Why Our Children Are Smarter Than We Are
The Enronization of Science
Tricks of the Trade: How Mercenary Scientists Mislead You
Defending Secondhand Smoke
Still Waiting for the Body Count
Chrome-Plated Mischief
Popcorn Lung: OSHA Gives Up
Defending the Taxicab Standard
The Country Has a Drug Problem
Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of
The Institutionalization of Uncertainty
The Bush Administration's Political Science
Making Peace with the Past
Four Ways to Make the Courts Count
Sarbanes-Oxley for Science: A Dozen Ways to Improve Our Regulatory System

In the introduction, the author relates a maddening instance of manufacturers' callous disregard of public, that is, human, safety. The "aspirin manufacturers delayed the FDA's regulation [requiring a warning on the link between aspirin intake by children and Reye's syndrome] by arguing that the science establishing the aspirin link was incomplete, uncertain, and unclear." Before the regulation was enforced, many children died; after the regulation was enforced, "less than a handful" of cases are reported in any given year.

In this series of posts, I will be considering the author's facts and arguments, putting them in the context of a trial lawyer's practice focused on product defect and the liability for injury by those defective products. The legal system, and your rights to recover for injury caused by negligent and reckless conduct, is in may ways shaped by wider concerns such as the use--rather, the misuse or abuse--of science by irresponsible and profit-hungry manufacturers.

For many years now, the big corporate interests have made a concerted effort to paint the proofs of defective products by trial lawyers as junk science, but the real story is the junk doubt that these corporate interests have manufactured and instilled on the part of policy-makers, legislators and judges. Time to expose the doubt and uncertainty for what it really is - JUNK.

Manufacturers Whine About Consumer Complaint Internet Tools

The federal government is ramping up its internet tools for consumers who have issues and problems with products, especially defective products, and, not surprisingly, manufacturers and their trade groups are "concerned about smear campaigns and lawsuits." See report here. 

In effect, and ironically,  manufacturers are whining about "defects" in the consumer complaint sites being built and maintained by the government:

[I]ndustry associations have expressed concern that baseless or inaccurate complaints could taint reputations. They have also raised the specter of class-action attorneys using the safety commission database to get new lawsuit ideas.

Id.  I say ironically, and laughably too, because big corporations and manufacturers are quick to point and complain about possible shortcomings or concerns (defects!) in consumer empowerment tools - the new internet tools being built by the government (both state and federal), but then take umbrage when ordinary folks (consumers who pay for their products), and their attorneys, point to the defects in their own products by way of lawsuits for damages personal injury and wrongful death.

 From the website of the US Consumer Product Safety Commission, we learn the following:

The Consumer Product Safety Improvement Act (CPSIA) became law on August 14, 2008. Through CPSIA, Congress gave the U.S. Consumer Product Safety Commission (CPSC) powerful new tools to protect consumers and their families. Our Commissioners, staff, and stakeholders are engaged in the implementation of CPSIA through a process we call the Consumer Product Safety Risk Management System (CPSRMS). CPSRMS will help us bring together consumer advocates, manufacturers, retailers, and the general public to create dialogue and track our progress.

CPSIA requires CPSC to create a public portal and a publicly accessible, searchable database of consumer product incident reports. Through the public portal, consumers will be able to report potential product safety hazards to CPSC in ways that improve the quality, value, and accuracy of the data collected. Manufacturers will be able to investigate and respond to product hazard reports more quickly, and to share information with both CPSC investigators and with the public through the public database. By working together, we will provide the American public with faster and more effective responses to product safety hazards. And consumers and researchers will be able to use the public portal and database to find more information about hazards in order to keep their families safe.

We are engaging the public in our efforts to implement CPSIA by holding hearings and public workshops and attending consumer and industry conferences. At our November 10, 2009 hearing, the CPSC received feedback from manufacturers, retailers, consumer advocates, and data experts. In January, 2010, we held staff workshops to engage interested parties in more detailed questions about how our searchable consumer database will function. Key participants included manufacturers, retailers, applications providers, community groups, and other groups that have a stake in the future of consumer safety.

I urge all good people to learn more about these new initiatives and to actively participate in making products we all use much safer. 

Toyota Fined Again by NHTSA

On December 20, 2010, NHTSA announced new and larger fines against Toyota for its failure to handle recalls properly:

WASHINGTON, D.C. - U.S. Transportation Secretary Ray LaHood today announced that Toyota Motor Corporation has agreed to pay an additional $32.425 million in civil penalties as the result of two separate investigations into the automaker's handling of auto recalls. Toyota will pay the maximum fines allowable under the law - $16.375 million in one case and $16.050 million in the other - in response to the Department's assertion that it failed to comply with the requirements of the National Traffic and Motor Vehicle Safety Act for reporting safety defects to the National Highway Traffic Safety Administration (NHTSA).

...

The second investigation completed today resulted in a $16.050 million fine. In that case, NHTSA investigated whether Toyota properly notified the agency of a safety defect in several Toyota models that could result in the loss of steering control. In 2004, Toyota conducted a recall in Japan for Hilux trucks with steering relay rods prone to fatigue cracking and breaking, causing the vehicle to lose steering control. At that time, Toyota informed NHTSA that the safety defect was isolated to vehicles in Japan and that the company had not received similar field information within the United States. In 2005, however, Toyota informed NHTSA that the steering relay rod defect was present in several models sold in the U.S. and conducted a recall for nearly one million vehicles. Then, in May 2010, NHTSA was alerted to additional information, including complaints from U.S. consumers, that Toyota had not disclosed when Toyota initially notified NHTSA that a U.S. recall was unnecessary.

But what is human safety really worth to Toyota? Compare the $32 million in fines thus far with Toyota's quarterly profits: for example, "the world's largest auto maker by sales, posted a net profit of 153.2 billion yen ($1.68 billion) in the three months through December" of last year! {source}

For Toyota, loss of and injury to human life is easily affordable.

NHTSA Re-Issues 15 Passenger Van Danger Alert

On October 14, 2010, NHTSA yet again issued a safety/danger/risk alert on the defective 15-passenger van.

"As the fall and winter driving seasons get under way, the National Highway Traffic Safety Administration is urging users of 15-passenger vans to take specific steps to keep occupants safe. Two recent fatal crashes, in New York and Georgia, involving 15-passenger vans that rolled over and resulted in 10 deaths give urgency to this reminder.

The agency warns that tire maintenance is paramount to preventing tragedies, such as these recent rollover crashes, from occurring. Users of 15-passenger vans need to make sure the vehicles have appropriately-sized tires that are properly inflated before every trip. The agency also points out that tires degrade over time. For this reason, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.

NHTSA said that it is directing this advisory to church groups, other non-profit organizations and colleges that may be keeping older 15-passenger vans in service longer than usual because of tight transportation budgets. Pre-primary, primary and secondary schools should not use 15-passenger vans for transporting school children, as they do not provide the same level of safety as school buses. It is also against federal law for schools to buy new 15-passenger vans for school transportation purposes.

Here are some safety tips for anyone planning a trip in 15-passenger vans:

• If you are an owner, make sure the vehicle is properly maintained.
• Owners should make sure drivers are fully trained and experienced in operating a 15-passenger van and are properly licensed.
• 15-passenger vans are very sensitive to loading and should not be overloaded under any circumstances. Agency research shows overloading not only increases rollover risk but makes the vehicle more unstable in any handling maneuvers.
• Owners should make sure that properly sized tires are being used on their vehicles.
• Before every trip, drivers should check the tires for proper inflation, and make sure there are no signs of wear. Correct tire size and inflation pressure information can be found in the owner’s manual.
• If you are a passenger, make sure you buckle up for every trip."

NHTSA forgot the most important safety tip: avoid these death traps like the plague.

Consumer Protection Act - Opposing Summary Judgment - Part 2

The intent and public policy of the Colorado Consumer Protection Act  should also be borne in mind. “The CCPA was enacted for this very purpose, to protect vulnerable consumers and the consuming public as a whole.” Crowe v. Tull, 126 P.3d 196, 209 (Colo. 2006). Moreover, the “availability of ‘other statutory or common law causes of action based on the same set of facts does not affect the plaintiff's right to assert a claim under the CCPA.’” Crowe, 126 P.3d at 210. “The purpose of the CCPA is to provide ‘consumers who are in a position of relative bargaining weakness with protection against a range of deceptive trade practices.’” Curragh Queensland Min. Ltd. v. Dresser Indus., Inc., 55 P.3d 235, 240 (Colo. App. 2002).

One way to show that your CCPA allegations are sufficiently stated with particularity is to compare them with allegations which the Colorado court of appeals has already found to be sufficient. In State ex rel. Suthers v. Mandatory Poster Agency, Inc., 09CA0253, 2009 WL 4981891 (Colo. Ct. App. Dec. 24, 2009), cert. dismissed (Mar. 10, 2010), the court held that the CCPA allegations in the complaint satisfied both the statutory elements of the CCPA and the procedural requirements of Rule 9. While your claims under the CCPA may differ, see if there is a correspondence to the sufficient allegations in Mandatory Power:

• “Defendant MPA is a Michigan corporation, and its principal place of business is located in Michigan.”
• “Defendant conducted business in Colorado under the assumed names Colorado Food Service Compliance Center and The Colorado Labor Law Poster Service.”
• “Defendants listed a Colorado address for both entities that was nothing more than a mail drop.”
• “Defendants did not maintain an office, or conduct any business operations, in Colorado other than mailing flyers from Michigan to Colorado.”
• “Defendants’ solicitations violated the CCPA.”
• “Defendants’ misrepresentations included misleading consumers into believing that MPA was a Colorado company or a government or government-affiliated company dedicated to compliance with governmental regulations when defendants are a Michigan company engaged in selling posters available for free through true governmental entities.”

Good luck ...

Consumer Protection Act - Opposing Summary Judgment - Part 1

Defendants always file a a motion for dismissal or for summary judgment on Colorado Consumer Protection Act claims. One typical defense strategy is to misconstrue the claim in the papers for summary judgment motion. Classic misdirection to bamboozle the court.

By misconstruing a CCPA claim, however, defendants fail to carry their initial burden on summary judgment. It is firmly stated in case law that the “moving party has the burden of establishing the nonexistence of a genuine issue.” Briggs v. Am. Nat. Prop. & Cas. Co., 209 P.3d 1181, 1185 (Colo. App. 2009) cert. denied, 09SC324, 2009 WL 3720172 (Colo. June 22, 2009). Plaintiffs too often overlook this first step in opposing summary judgment.

If a defendant fails to carry its burden, no burden shifts to the plaintiffs, and summary judgment can and should be denied on that basis alone. At least ask the court to so rule.

It is always prudent, however, in opposing summary judgment to show that a host of genuine issues, some undisputed, some disputed, exist either of which precludes summary judgment.

As courts should knows, “[w]hen the pleadings and affidavits show material facts are in dispute, it is error to grant summary judgment. The facts must be viewed in the light most favorable to the non-movant.” Mullen v. Allstate Ins. Co., 232 P.3d 168, 171 (Colo. App. 2009). On motions to dismiss, “the court considers the facts alleged in the pleadings, taking them as true and viewing them in the light most favorable to the plaintiff, as well as documents attached to, incorporated by reference in, or otherwise referred to in the complaint.” Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010).

Moreover, a “motion to dismiss . . . is looked on with disfavor and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.” Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 539 (Colo. App. 2005).

 More later ...

Evolving Crash Test Ratings

CTLA 2010 Presentation - Attack, Deny, Delay: Industry’s Playbook for Avoiding Consumer Justice

Driving and Texting - What's the Law in Your State?

Delaware joins 8 other states in banning the use of hand-held phones by all drivers and 29 other states in banning text messaging by all drivers, effective Jan. 2, 2011.

For details on cellphone and texting laws in the fifty states, surf to:

http://www.iihs.org/laws/cellphonelaws.aspx

15-Passenger Van Accident - Stop the Carnage 2

Alert - News Report:

A church van accident over the weekend in Hamblen County [Tennessee] is drawing attention to the safety of 15-passenger vans.

It is an ongoing concern. In fact, federal law prohibits their use for school-related transportation.

"It can much more easily roll over and in a panic situation they won't handle like a car and people can find themselves off the road very quickly,' AAA East Tennessee Spokesman Don Lindsey explained.

Story here.

And this from our neighbor to the north:

The federal government has launched a safety review of 15-passenger vans, such as the one that seven students and a teacher in New Brunswick were travelling in when they were killed in January 2008.

The vans are popular transportation for school boards, sports teams and daycare centres, even though they have a dismal safety record.

Several jurisdictions in Canada and the United States have already conducted safety reviews and found the vans inappropriate for carrying large groups of students.

According to the U.S. National Transportation Safety Board, 1,100 people in the U.S. were killed in single-vehicle rollovers involving the vans between 1992 and 2002.

Reviews found the vans were three times more likely to roll over than any other vehicle.

Story here.

Are government safety reviews effective? I don't know about Canadian government safety reviews, but here in America we must be aware of what's called regulatory capture (sometimes called interest group capture by political scientists). The serious problem, which infects the constitution and our form of government itself, is this: the agency charged with regulating and policing a particular industry is "captured" by that industry by way of personal influence, money, gifts, travel, information deluge, and partisan propaganda in the mainstream media (and increasingly in the new internet media).

A common scenario is for the particular industry to hire ex-employees of the regulatory agency, paying them much more than they earned as civil servants. You can see where that will go. 

The problem was illustrated by my earlier post on What Happens in Vegas Need Not Stay in Vegas. Stay tuned...

Rollover Risks and Roof Crush - 10 SUVS Tested

Below is a small preview of an important safety report by the Insurance Institute for Highway Safety about the rollover safety risks associated with roof strength of 10 suvs. Download the document to get a better view.

Public Safety - Proper Vehicle Tire Inflation

Although my products liability and insurance bad faith law practice is nationwide, my base camp is in Denver, Colorado.  So, I was concerned when I came across this recent survey by the Rubber Manufacturers Association of vehicle tire inflation in the Denver area:

NATIONAL TIRE SAFETY WEEK
2010 TIRE PRESSURE SURVEY FACT SHEET – DENVER

• Only 10% of vehicles had four properly inflated tires.
• Nearly 52% of vehicles had at least one under inflated tire.
• 18% of vehicles had at least one tire under inflated by 8 pounds per square inch (psi).
• 24% of vehicles had at least one tire under inflated by 6 psi.
• 34% of vehicles had at least one tire under inflated by 4 psi.
• Tires may lose up to 1 psi per month.
• Many vehicles equipped with tire pressure monitoring systems would not issue a warning even after a drop in tire pressure of 8 psi. These systems issue a low pressure warning only after tire pressure drops 25%.
• Properly inflated tires can improve fuel efficiency by 3.3% and save $.09 a gallon at the pump. Approximately 1.2 billion gallons of fuel are wasted each year by U.S. motorists driving on under inflated tires.
• The National Highway Traffic Safety Administration (NHTSA) estimates that under inflated tires contribute to more than 600 fatalities and 33,000 injuries each year.

The survey was based on three hundred and seven vehicles’ tire pressures checked by Peerless Tyre Company outlets in the Denver area.

In my practice, manufacturers of defective tires, tires which suffer catastrophic tread separation for example, typically plead that the victim failed to properly inflate the tire or failed to maintain proper tire inflation.  Check your tire pressure.