PRODUCT SAFETY
AT HOME & AT WORK

The Toyota recall related to sudden acceleration problems is further evidence of the limits of the power of government to regulate big business. According to a recent New York Times story, the National Highway Transportation Safety Administration conducted six different investigations into complaints of sudden and unexpected acceleration in Toyota vehicles, and closed them all with no action.  It accepted Toyota’s superficial explanation for the problems, and refused requests to pursue a further investigation.

NHTSA is the U.S. government agency charged with regulating automobile safety. Complaints may be filed with the agency by injury victims, their lawyers and others. Frequently, the complaints are dismissed or rejected by NHTSA after a limited investigation. As in all government action, politics can play a role in the appointment of high officials, and political outlook can trickle down within the agency. One common excuse given for refusal to further investigate is lack of resources within the agency. Both of these problems can result in poor investigations and poor outcomes.

While it is true that every government agency has limited resources, that fact is forgotten at some critical points in the legal process. For example, when Congress creates rulemaking authority in an agency like NHTSA, it can convey the power to pre-empt civil lawsuits over safety issues.  If NHTSA is given that power and goes on to issue rules about auto safety, and its decisions are flawed by politics and limited resources, the rules nonetheless become the law of the land. The public is left to buy unsafe products with no recourse against the seller.

Judges also sometimes use their own power to declare that NHTSA rules and decisions pre-empt citizen lawsuits. In their decisions, these judges dismiss pending cases on the  ground that if a manufacturer follows a NHTSA standard, its car must be safe. This happens even though NHTSA standards mostly date back to the 1970s- long before modern technology was available to make cars as safe as they can be made today.

The important lesson to be learned here is that history is full of stories about the failure of government regulators to stop big business from glossing over truth and fairness. Neither Congress nor the courts should close the courtroom door to citizens who want to contest the decisions and safety standards adopted by government and business. Such decisions  are best made by jurors informed in the courtroom by the litigation process.

Toyota claims to have “voluntarily” recalled millions of cars and trucks, and to have “voluntarily” stopped making and selling new cars until the problem is fixed. NHTSA is now claiming credit for having forced Toyota’s hand, and for having a leading role in protecting the public from dangerous and defective products. We should all look carefully at such claims. Neither Toyota nor NHTSA deserves much praise for the present state of affairs. Millions of people are now feeling at risk, and feeling helpless to do anything about it.

The next time government wants to limit the opportunity of injured people to take their case to court, and the next time the auto industry and its insurers want to blame the trial lawyers for hurting the public interest, we should all remember Toyota, the Ford Pinto, the cigarette companies, the asbestos industry and the many government agencies which failed in their regulatory duties.

The Chicago Sun Times and Bloomberg News have reported that the top 5 product liability verdicts returned in 2009 were more than 50% greater than the top 5 in 2008.  Leading the way in size were verdicts against cigarette makers and drug companies.

The tension in product liability trials is often around the public perception of who is costing the public more, careless manufacturers or people who bring injury claims.  This is neither appropriate nor fair to either side, as individual cases are supposed to be judged on the evidence introduced in the courtroom, not on public opinion or the political interests of the particular  jurors sitting on the case.

A person injured by a clearly defective product should not be punished twice, once in the form of his or her injury and again in the courtroom.  By the same token, companies that make safe products should not be punished by jurors who happen to be angry at someone else.

Before 2009, most lawyers would probably have said that, more often than not, it was harder for an injured person to get a fair trial than a big company. Perhaps the explanation for the 2009 numbers is that jurors are presently more willing to listen to the evidence with an open mind.

In the past, jurors assumed that government standards and government oversight were sufficient to control corporate misbehavior. The inaccuracy of that assumption has been revealed by Bernie Madoff and the big banks and brokerages “too big to fail”, all of whom  have been subject to the closest scrutiny government offers. The fact that Madoff, Enron and others were able to cheat the public for so long, and that big bankers were able to take billions of dollars out of their companies while leaving stockholders with nothing shows how weak and ineffective government  regulators are.

In the end, only a strong tort system and a strong jury system can regulate big business and protect “the little guy” from the power of big money interests.

In 2009, the US government poured billions of dollars into GM and Chrysler, while at the same time allowing them to wipe out the legitimate personal injury claims of thousands of individuals injured by defective cars and trucks sold by these two companies.  This was done through the GM and Chrysler bankruptcy filings, and over the objection of plaintiffs’ lawyers, particularly those associated with AIEG (the Attorneys Information Exchange Group).  Despite the objections made in Congress and in the bankrupty court, thousands of pending claims were wiped out.

Since defective GM and Chrysler vehicles are still on the road and are still causing injuries, many injured people and their lawyers are wondering whether it is now possible to succeed in a products liability claim against the “new” Chrysler and the “new” GM.

The answer is that anyone who has been injured as a result of a defect in a GM or Chrylser vehicle should consult immediately with a lawyer experienced with such cases. There are several ways which the bankruptcy bar may be overcome or avoided. One way is to look closely at the timing of the bankruptcy and the injury to see whether a particular claim is subject to the bar.  For the most part, injuries suffered after the bankruptcy was officially approved are not barred. Another option is to consider bringing barred claims against defendants who are not protected by the bankruptcy law. For instance, component part manufacturers and retail auto dealers (including used car dealers) may be subject to suit even if GM and Chrysler are not. Also, many new cars sold by GM and Chrysler were manufactured in Canada, in Mexico or in Asia by affiliated companies or by partners. Those affiliates and partners are not protected by the GM and Chrysler bankruptcies.

So, if you or someone you love has been injured by a defect in a car, truck, bus or van  bearing a GM or Chrysler nameplate, do not be discouraged from pursuing your claim just because the government has provided both money and bankruptcy protection to these two big companies. Your rights may be protected by an approach to the case that only and experienced attorney can identify.

There has been a recall of 10,000 gas grills due to the risk that the rubber hose connecting the gas supply to the burner will melt and rupture. This is a danger in these grills because the hose is too close to the burner. When the hose gets hot, it melts,  gas leaks out creating a risk of fire and explosion.

This is an obvious defect in grill design and easily avoidable.  After all, it doesn’t take engineering skills to realize that a rubber hose containing flammable gas is very dangerous when it adjacent to hot components or flames.

It is more common to find defects in gas grills  associated with the metal valves and burners that are supposed to control gas flow.  If the valves or burners leak, or do not fully control the volume and direction of the gas flow, gas can build up in the body of the grill or in a space where the grill is stored. Such leaking and accumulation of gas can lead to explosion and fire.

If you have a gas grill that looks old, rusty, or corroded, or if the flame is hard to light,  sputters, flares, or won’t stay lit, don’t take chances. Dispose of it properly and buy a new one. Also, if your gas cylinder is rusty, dented, or smells like  gas, don’t use it. Put it in an open area where any leaking gas will not accumulate and find out from your local fire department how to dispose of it.

If you or a someone you know has been injured as a result of a gas explosion or other defect in a gas grill or stove, contact a lawyer who has handled similar cases.  An early and thorough investigation of the case can be important to a good outcome. Among other things, good pictures of the scene should be taken and the critical evidence must be protected and preserved.

Gas appliances can be convenient, inexpensive, and easy to use, but they can also be dangerous.  The news is full of  stories about people who are killed or suffer brain injuries caused by carbon monoxide escaping from defective appliances and heating systems.

Sometimes the cause is an acute problem, such as physical damage to a vent, which fills a living space with poisonous carbon monoxide gas in a matter of hours.

In other cases, a small, chronic leak in the vent system causes injury from low-level  exposure over weeks or months.

Because carbon monoxide is colorless, odorless and tasteless, leaks are likely to go undectected. For the same reasons, carbon monoxide is known as the “silent killer.” It is widely recognized that the risk of death and injury from carbon monoxide rises in the winter months, when heating systems are used more and when windows and doors may be sealed shut to keep out cold drafts.

Modern technology can help reduce the risk of  tragedy from carbon monoxide poisoning. For $20.00 you can buy a battery operated carbon monoxide detector that is as easy to install as a smoke detector.  More sophisticated detectors can be wired into the electrical system of any home or workplace.  Regular service of gas appliances, including carefully checking of chimneys and vents, together with carbon monoxide detectors, are the best way to protect yourself and those you love from the dangers of carbon monoxide poisoning. A recent story in the Denver Post highlights how the use of carbon monoxide detectors can avoid tragedy.

If you have a question about an injury caused by a defective product such as a gas heater or a gas appliance, contact a lawyer who is experienced with similar cases. The quality of the investigation done following such an injury may be critically important to the outcome of the case.

Machine guarding has been a major concern for factory workers in America since the 1850s. At that time, large scale mills appeared along the rivers. The flowing water turned large waterwheels, which, through a series of leather belts and smaller wheels, drove long shafts at the ceiling level along the entire length of the mills. At each machine station, a belt driven by the ceiling shaft transmitted power down to the machine.  

These early mills used two basic forms of  guarding to protect workers. First, the ceiling shafts were considered  to be “guarded by location.” In other words, workers were isolated from the danger of entanglement by the simple fact that they could not reach the dangerous area.  Second, moving parts within reach of the workers were guarded by “fixed barrier guards”. In those situations, workers were physically restrained from reaching into nearby danger.

While these two basic approaches to guarding are still in use, today’s machine designers also have more sophisticated options. Electric eyes, body bars, and proximity sensing pads can all shut down equipment if a worker gets too close to a danger zone.  Interlocks can prevent machinery from starting up if all necessary guards are not in place. Warning signs are also considered to be part of a designer’s inventory of guarding choices.

Responsible employers do not expose workers to unnecessary risks by allowing them to work on unguarded machinery.

Never operate a machine unless all guards are in place, and never override interlocks. Read and understand your operator’s manual, look over all warning stickers, and independently assess all risks before you operate any machine.

Even workers who follow all safety rules can be injured by improperly guarded machinery.  If you or someone you know has been injured by entanglement in moving machinery, consult with a lawyer who specializes in product liability claims. 

Successful claims may be based on an argument that the barrier guard was flimsy and inadequate, that the machine designer relied upon a warning sticker when a barrier guard was necessary, or where the hazard should have been designed out of the machine entirely, eliminating any need for a guard or warning. 

Hyundai Motor America has been punished by the highest court in the State of Washington for falsely responding to questions in a court case. The case involved allegations of defects in a Hyundai Accent which allowed a seat to collapse, and resulted in a passenger, Jesse Magana, being rendered paraplegic when he was ejected from the  car  during a crash.

Mr. Magana filed suit and, as allowed by the court,  asked  Hyundai to produce information about the design and construction of the car.  Hyundai and its lawyers  did not respond fully and openly. When challenged later in the case, Hyundai was found by the court to be willfully hiding information and hindering Magana’s honest efforts to pursue his case. As punishment for Hyundai’s behavior, the trial court defaulted Hyundai and entered an award of  $8,000,000 in favor of Mr. Magana.

That court order was upheld on November 25, 2009 by the Supreme Court, State of Washington.

Honda was punished under similar circumstances in the middle of a trial in California just a few years back.

 The problem of “false park” and passenger cars, vans and trucks “jumping into gear” has been a problem for many years.

Some transmission-shifting systems are worse than others. More than thirty years ago, Ford received many complaints about its cars jumping into reverse. In the 1990s, Chrysler had many claims related to minivans slipping into gear unexpectedly.  It is shocking and wrong that, with the long history of injuries (many to the elderly and to children), these problems continue. 

There are two simple ways manufacturers can avoid or fix transmission-shift problems.  First, they can address the “false park” situation, which arises when drivers think they have shifted into “park” when the shifter is actually hung up somewhere between park and reverse.  In these cases, a small bump to the shifter, or even drive train vibration, can cause the car to slip into gear. It is not hard to design the PRNDL (park, reverse, neutral, drive, low) mechanism to eliminate this risk. Second, every vehicle should be sold with a “brake shift interlock” which prevents the transmission from coming out of park unless the brake is applied.

Despite the fact that these technologies have been known for many years, there are thousands of cars on the road today which may easily “jump into gear” and cause injury.

To make sure this does not happen to you or your family, do not own or drive a car without a brake shift interlock, and never leave the driver’s seat empty if the car is running.  Always use your parking brake, and be sure that the transmission shift lever is firmly in the “park” position. 

Extension ladders are much more dangerous than they look, particularly for homeowners. People who use extension ladders at work are usually trained in how to use them properly, and they eventually develop enough experience to respect the danger and limits of extension ladders. Also, extension ladders made for commercial use, called Type I or Type II ladders, are more rugged than Type III ladders, which are made for use by homeowners. It is surprising, odd, and probably a bad thing that Type III ladders are more flimsy than commercial ladders. Type III bend and sway more than other ladders, their parts wear out more quickly, and they just dont work as well as heavier duty ladders. No one needs a safe and sturdy ladder more than an inexperienced homeowner.

Before using an extension ladder, inspect it to see that no components are bent or broken. Set it up on a stable surface, and set it at an angle that is not so steep that it will fall backwards and not so flat that the feet will slip away from the wall. Dont overload the ladder, and avoid leaning your body weight outside of the ladder rails.

When people are injured on extension ladders, it is usually because the ladder falls sideways, because the feet slide along the ground away from the wall, or because the rails break. Each of these problems can result from user error, but they can also result from defects in the ladder. The defects may be designed or manufactured into the ladder, or they may develop later from careless handling.

If someone is injured while using a ladder, document the scene with pictures before things are moved. Note gouges, marks on the ground, and scratches or paint transfer marks on the wall. These witness marks may be critically important for proving where the ladder was before it fell, which way it fell, and why it fell. Also, do not straighten any broken parts or make other changes in the ladder before it is properly inspected by professionals.

Ladders are necessary to accomplishing many tasks at home and at work, but they are dangerous. If you must use one, be sure it is of good quality, in good condition, and properly set up before you climb.

Several years back, some motorcycle manufacturers were settling claims by customers who suffered leg injuries while riding motorcycles. The liability theory in those cases was that the motorcycle was defective, either because it lacked sidebars that would have protected a rider’s leg, or that the bars provided failed to protect the rider.

Since then, there have been at least three major studies of the subject, all of which concluded that sidebars do not and cannot protect the legs of a rider in a crash. One of the three suggested that sidebars actually make motorcycles more dangerous due to their propensity to bend onto and trap the leg. The studies demonstrate that the only effective purpose of motorcycle sidebars is to protect the bike against property damage in a case where it falls over.

The reason sidebars are not effective in protecting a rider’s leg from injury in a crash is that the combination of geometry and limits on material strength mean that the forces of a crash will always bend and break the bars. As they project out from the side of the motorcycle, the sidebars are, in effect, levers. When struck by a bumper or caught on pavement, the bars pivot around their points of attachment. The force of impact plus the leverage provided by the length of the bar impose more force on the bar than it can withstand, so it collapses, exposing the leg to the same crushing forces that destroy the bars.

Manufacturers of motorcycles and motorcycle sidebars today explicitly warn that bars protect bikes, not riders. As long as they carefully do so, it seems unlikely that we will see a return to the days when a plaintiffs can win a product liability case based on defect theories related to motorcycle side bars.

John Sedgewick