Identifying and Litigating Quality Auto Products Defects Cases

Brian D. Chase (Bisnar Chase Personal Injury Attorneys) and Scott D. Raphael (Litigitechnology, Inc.)

One of the costliest but most satisfying and rewarding areas of product liability litigation involves automobile product liability defect cases. Without considerable self-schooling, exposure and experience in handling these cases they can quickly prove overwhelming or even well beyond the resource capability to a relatively small practitioner’s office. Spotting the quality auto product liability case from an ocean of potential defect litigation is therefore essential to survival and success in this field.

There remain a number of discrete areas of auto product defects which continue to kill and injure consumers, meaningful rectification of which the automakers have continued to ignore. These include, among other such areas, seat belt buckle failures, seat back failures, lateral instability and rollover and roof crush.

With a modicum of study and diligence on the practitioner’s part, they present viable and potentially lucrative opportunities for client recoveries. This paper is intended to provide an overview of those areas, to provide assistance in understanding the technical merits of these areas, as well as some basic recommendations regarding litigation strategy.

Seat Belt Failures

Perhaps the most common seat belt buckle ever manufactured for cars and trucks in the United States is the RCF-67 side-release buckle, which continues to be the predominant buckle currently in use on cars still on the road to date. During accidents, the RCF-67 has been known suddenly, inadvertently and inexplicably to unlatch, causing the occupant to become suddenly unrestrained with potentially catastrophic results. The cause of such inadvertent unlatching has been categorized variously as either “inertial unlatching” or “false latching.” Under the theory of inertial unlatching, the sudden accident blow to the vehicle, if delivered from the proper angle, will theoretically cause the push button of the buckle to remain in place, while the buckle housing, vehicle and previously restrained occupant will move against the direction of button depression causing the buckle to unlatch. False latching, on the other hand, refers to insertion of the tongue into the buckle such that the user believes that the buckle has latched, when in fact it has not. Friction and other forces may cause the tongue to remain in the buckle until an accident force suddenly dislodges the buckle again causing the occupant to become unrestrained.

The phenomena of inertial unlatching in side-release seat belt buckles has been the subject of intense litigation during the last two decades, unfortunately with mixed success. In his seminal Seat Belt Safety Study, J. Kendall Few, one of the foremost authorities on seat belt buckle design evolution and performance, the author reviews in detail the safety history of the RCF-67 buckle and further notes in his website (www.seatbeltbuckle.com) that “[d]espite repeated warnings in the patent literature, buckles with no ‘lock-for-latch’ design feature have proved to be susceptible to inertial unlatching in pendulum impact tests, side impact crash tests and real world collisions in which many American motorists have been maimed or killed….[¶] Susceptible buckles include the RCF-67, Gateway 900, Tokai B-020 and ASE 476215.” However, in more than a few RCF-67 inertial unlatch cases, Plaintiffs’ expert witnesses have been precluded altogether by the District Courts under Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 from offering opinion evidence regarding inertial unlatching in the cases at hand based upon the inherent controversy over whether the defense-labeled “parlor trick” (often demonstrated by snapping the engaged tongue in buckle assembly rearward over one’s knee, resulting in the inertial unlatch of the pawl restraining the tongue in the buckle) and other recreative inertial buckle unlatching testing methods usually conducted for litigation are genuinely accepted and scientifically reliable. Contributing to a defense-oriented federal judiciary in many jurisdictions is a continuous, automaker-sponsored drumbeat exclaiming the impossibility of inertial unlatching in real world accident scenarios, forming the predicate for many successful Daubert challenges.

Surprisingly discarded as an inadvertent unlatching causal mechanism at the early juncture of many buckle unlatching cases is the phenomena of false latching to which many practitioners including Kendall Few fairly opine side release buckles such as the RCF-67 are genuinely susceptible. The general overriding cause of skepticism among the Plaintiffs’ bar of the potential for false latching in side-release buckles is in part the theoretical proposition that a false-latched RCF-67 buckle simply cannot remain falsely latched for more than a very few minutes due to the retraction force of the shoulder belt and movement of the occupant in the vehicle during ordinary travel. A secondary reason for early rejection of a false-latch theory for inadvertent RCF-67 unlatch would appear to involve reluctance to concede up front an inescapable degree of comparative fault on the part of the plaintiff/buckle user, coupled with the understanding that in a genuine false latch case there will virtually never be witness markings on the belt, a forensic finding equally supporting the inevitable defense allegations of non-use of the seat belt altogether.

Notwithstanding the conventional wisdom above, our office has enjoyed considerable success with use of the false latching mechanism of unlatch theory in a number of inadvertent RCF-67 unlatch cases which, unlike inertial unlatching, finds a surprising level of evidentiary support within the automakers’ own internal documentation, especially at Ford Motor Company. In the interest of dispelling the myths that RCF-67 buckle false latching is neither a viable crashworthiness theory nor a sound litigation strategy we have documented some of our findings on this topic for your consideration.

The RCF-67 Buckle and its Inadvertent Unlatch Propensities

The RCF-67 buckle is a side-release buckle design which utilizes a spring-loaded pawl (connected directly to a side-mounted pushbutton) which slips into an aperture in a flat latch plate against which the tongue (to which the shoulder restraint and lap belt is typically attached) is slid into the buckle. As the tongue is inserted into the buckle, sliding perpendicularly to and in the same plane as the latch plate, the spring-loaded pawl is pushed aside until the pawl “clicks” into the tongue aperture. This theoretically is intended to lock the pawl into the tongue aperture inside the buckle and retain it there under pressure from the spring until the user again depresses the button pushing the pawl out of the tongue aperture and allowing the tongue to be withdrawn from the buckle. The buckle’s RCF designation stands for the initials of Robert C. Fisher, the buckle’s original designer at General Motors Company, while “67" refers to the calendar year 1967 when the buckle was initially developed. The RCF-67 was developed as a miniature version of the larger RCF-65 buckle (developed by Fisher in 1965) the operation mechanism from which is identical to its smaller progeny.

While the RCF-65/RCF-67 were arguably significant design improvements of more primitive buckle predecessor designs, the source of vulnerability of the RCF 65/RCF 67 is twofold. First, if the tongue is not inserted completely into the buckle to permit the spring-loaded pawl fully to click into the aperture, the buckle’s locking mechanism has not come into operation, allowing the tongue thereafter to be pulled out of the buckle during a moderate deceleration, significant occupant movement, and/or by the force of the spring-loaded retractor of the belt restraints. This is a “false-latch,” also called a “partial engagement” scenario. The second problem with the RCF-65/RCF-67 design is that a sudden and significant force delivered perpendicular to and opposite the plane of the side-release button can essentially cause the button and linked pawl to become “depressed” relative to the plane of the latch plate, tantamount to the user pushing the button and causing the buckle to unlatch inadvertently. Of course, this phenomena is described as “inertial” unlatch. Both false latch and inertial unlatch share characteristics inclusive of the user perceiving (s)he has properly secured the buckle, and thereafter becoming suddenly and inadvertently unrestrained in an accident, with the same resulting consequential potential for serious injuries and/or death.

The design of the RCF-67 buckle permitting both false and inertial unlatching is fundamentally the same as that of the Tokai Rika B-020, ASE 476215 and Gateway 900. While most of the automakers have transitioned into use of so-called “European-styled” end-release buckles, Ford Motor Company has been the leading domestic automaker continuing to deploy the RCF-67 in a substantial percentage of its production vehicles, especially in its SUV’s and light trucks, largely for cost-reduction purposes. Consequently, at present, there are multiples of millions of vehicles at large equipped with RCF-67 buckles operated daily through the nation at constant risk of sudden false and inertial unlatching of those buckles, with their inherently catastrophic injury potential unappreciated by an unsuspecting motoring public.

The False-Latching RCF-67 Case Profile

As with inertial unlatching, the typical false-latching RCF-67 case involves death and/or injury inflicted upon a suddenly unrestrained occupant, despite as claim of seat belt buckle use, as a result of the inadvertent unlatch. It is not unusual for users encountering both types of unlatching to assert they heard the familiar “click” of the tongue engaging into the buckle, in inertial unlatching cases due to the actual triggering of the pawl into the tongue’s aperture, and in the false latching case from metallic contact of the tongue with portions of the latch plate. In addition, eyewitness testimony corroborative of (and/or at least not controverting) buckle usage and/or to the extent admissible, evidence of custom and practice of belt buckle usage, must be favorable particularly in death cases for both theories to prove viable. From those common roots, the evidentiary characteristics of false and inadvertent unlatching evidence diverge.

Typically there will be no post-accident signature or witness marks on the belts in a false latching case because the belts sustain no significant loading before the tongue emerges from the buckle. While the defense will assert this as evidence of alleged buckle non-use, it is rare for any defense expert to deny that absence of forensic witness mark evidence on belts is standing alone is inconsistent with a false latch. Second, the probability of a false latch scenario is inversely proportional to the length of time of the subject vehicle’s trip prior to the inadvertent unlatching accident. However, we find there to be a popular misconception over how much time is required before a user will discover his or her RCF-67 buckle to be falsely latched.

We have heard many of our fellow practitioners opine that no falsely latched RCF-67 buckle can remain so for more than a matter of seconds to at most a few minutes even during gentle driving on a well-paved road. This may indeed be true in some vehicles, but is not true in many others. Actual reconstructive testing performed by our offices, as well as other forensic evidence we have obtained shows that, in certain vehicles where the RCF-67 buckle is rigidly mounted (e.g., the Ford Explorer) and particularly in vehicle’s front seats, a falsely-latched buckle may remain so for extended periods of time of up to 15-20 minutes, even on rougher roads, and following both multiple, alternative direction turning movements and multiple starts and full stops. Accordingly, we have found that vehicle-specific installation and mounting design of the RCF-67’s therein is a pivotal factor in assessing the viability of false latching as a theory, and actual vehicle testing has occasionally become the evidentiary trump card in resolving a false latching case. As discussed below, Federal Motor vehicle Safety Standard (“FMVSS”) 209 (49 U.S.C. § 571.209 S 5.2(g)) requires component testing only before vehicle-specific installation, and in the manufacturers’ view, only in a manner by which the withdrawal force exerted on tongue is applied in the same plane as that of insertion of the tongue into the parallel latchplate. However, where in some vehicles, the buckle itself is mounted on a rigid bracket or stalk and cannot flex in any other direction, and the retractor pulling force is exerted the tongue at an angle from the direction of insertion of the tongue into the buckle, the resulting additional friction of the tongue against the latchplate inside the buckle causes resistance to buckle withdrawal which increases at a multiple of the angle of pull, and can result in increasing the withdrawal force necessary to disengage a false-latched RCF-67 buckle to levels well beyond the maximum specified by FMVSS 209.

Component age and wear are also analytically important, since building corrosion on the interfacing metallic surfaces of tongue, pawl, and latchplate, along with eventual weakening of the harness retractor over time in the typical 3-point restraint will contribute to the both the proclivity and duration of false latching in RCF-67 installations. Specific occupant size and positioning also bears significantly on the length of false latching, since the more acute the angle between the direction of insertion and that of belt’s pull, the higher the force exerted from ahead necessary to disengage a false-latched tongue from a buckle. A small child may be able to remain falsely latched for a greater length of time than a more robust adult as a result of a smaller torso and increased angle between the direction of retractor force and tongue insertion direction. Also at work potentially are upholstery interaction issues which can further increase the force necessary to separate a false-latched RCF67 tongue from buckle in some rear-seat installations.

Where the supporting evidence differs critically as between false and inertial unlatching is with regard to the historical documentary acknowledgment of and notice to the manufacturers of the propensity of false latching which, unlike inertial unlatching, is conceded by the automakers to be a genuine real world phenomena which can and does occur periodically. Moreover, the manufacturer’s own documentary evidence establishes that false latching has been acknowledged for years as one drawback of the RCF-67 side-release buckle and has been cited as one of the primary purposes for development of an end release buckle, whose spring-loaded design is intended to spit out a tongue which has not been fully engaged and locked into the buckle.

With regard to Ford, the leading user of RCF-67 buckles in millions of recent vintage vehicles, the historical paper trail on point is astonishing. As opposed to a chorus of manufacturing denials among a paucity documentary evidence on whether inertial unlatching is even remotely possible, since the earliest days of side-release buckle development, Ford’s General product Acceptance Specifications (“GPAS”) internally binding on seat belt buckles used in Ford vehicles mandate that such buckles “shall be designed to prevent false latching.” These GPAS standards were incorporated verbatim into Ford’s subsequently developed Corporate Product Acceptance Specifications (“CPAS”) applicable to its light trucks and vans, and thereafter to Ford’s currently applicable Worldwide Product Acceptance Specifications (“WPAS”). Accordingly, Ford has adopted its own internal proscriptions against buckles capable of false latching, which even Ford’s experts will concede necessarily includes the RCF-67 buckle which Ford has continued to use in its vehicles. In California, such internal rules are evidence of what the standard of care at Ford requires, and evidence that Ford has failed to follow its own rules in this regard is evidence of negligence. See, Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 480.

But the story at Ford is even more compelling. Aside from its GPAS, CPAS and WPAS standards, in the late 1960’s Ford conducted extensive crash and sled testing using crash dummies purportedly restrained primarily with RCF-65 and RCF-67 buckles, during which one-half to two thirds of the dummies became suddenly unrestrained during impact. This report was according to Peter Bertleson, a Department Manager responsible for technical review of these tests numbering as many as 1500, who testified that the problem was so widespread that the test engineers were ordered to drill and screw through the button to secure the tongues into the buckles through the tests. Mr. Bertleson, who has since retired in Sedona, Arizona, has testified he reported to Ford management his belief at that time that many of Ford’s own trained technicians were failing completely to insert the tongue into the RCF-67 buckles to ensure they were secured, resulting in false latching becoming the primary reason for inadvertent unlatch in most of these tests. The problem occurred again in 1978 in a now infamous crash test numbered 3888, where the film of the frontal barrier impact test shows an RCF-67 buckle becoming suddenly unlatched at the moment of impact, allowing the dummy violently to impact the vehicle’s dashboard and windshield. Ford’s engineers concluded and have testified that false-latching was the cause of the inadvertent unlatch witnessed in 3888. What is interesting is that Kenneth Ledford, one of the principal engineers still surviving who conducted Test 3888, has testified that the dummies were buckled in by Ford’s own expert technicians the night before in a different building, the vehicle on hoisted up on a tow truck its, towed across a very roughly paved parking lot area into another building, dropped down and mounted on its track, and shot down the test track before impacting the barrier, at no time before which did the crash dummy ever become unrestrained. No action was ever undertaken by Ford to address the contradiction between its internal standards forbidding the very false latching it was routinely encountering with the RCF-67 principally at the hands of its own trained test engineers.

Since at least January 1, 1983, the European Community adopted as binding upon manufacturers of vehicles sold in Europe, a March 20, 1958 United Nations Agreement (“concerning the adoption of uniform conditions of approval and reciprocal recognition of approval for motor vehicle equipment and parts”) Regulation 16, § 6.2.2.1, which precluded the sale of any motor vehicle in Europe equipped with RCF-67 side-release Type I seat belt buckle because said regulation proscribes the use of buckles which may be left in a partially closed or a “falsely latched” condition. Ford admittedly modified its vehicles sold in Europe to comply with these regulations, yet declined conspicuously to do so at home.

In 1983, a “Supplier Research Need Item” memorandum was prepared and disseminated at Ford, wherein it was openly conceded that the existing RCF-67 design’s failure to possess a tongue-eject feature could permit false latching. In that memorandum, authored by Ford engineer Fred Daris (now employed by DaimlerChrysler) Ford stated it was willing to expend up to $ 2.60 per buckle at that time to secure a new type of seat belt buckle from a supplier which could and would avoid “false latching.” Throughout the 1980’s, Ford then began developing “end-release” buckles for use in a number of its vehicle lines, which “end-release” design incorporated just such a tongue eject feature which prevented false-latching. These end-release style buckles specifically began to be phased into the Ford Taurus, Escort, Festiva, Thunderbird, Probe and several other of its lines at the end of the 1980’s. In 1986, Ford developed, produced and introduced into the Ford Taurus and Mercury Sable a side-release buckle possessing a tongue eject feature which precluded false latching which it designated the “Taurus Buckle”. That same year, Ford published an internal position paper entitled “Seat Belt Buckle and Adjust Tongue Alternatives” in which Ford admitted in writing that both the existing Taurus Buckle and an end-release buckle with a tongue-eject feature (one of which was then available European-manufactured “REPA” buckle) would completely eliminate any risks of false latching, that false latching was considered a disadvantage in the end-release buckle, and that as a result, the Taurus Buckle should be expanded into all other Ford Carlines until the REPA buckle could be fully developed for all carlines starting in 1990. The position paper was thereafter largely ignored and its plan was discarded for reasons of cost conservation discussed below.

The evidence reveals that Ford deliberately ignored both its own product acceptance specifications, its own multiple internal written recommendations which repeatedly emphasized the importance of developing a false-latch proof buckle at the earliest feasible opportunity, and the emerging trend away from false-latch susceptible buckles dictated by European regulations and being adopted at an increasing pace even by Ford’s domestic competitors. Ford’s explanation of its indifference in the face of the overwhelming evidence lies solely in the assertion that while false latching, unlike inertial unlatching, does occur in the real world, it is rarely encountered and does not usually culminate in injury or death. The evidence does not support Ford’s defense.

First, Ford’s own documentary zeal seeking the eradication of false-latching prone RCF-67 buckle designs and even its own false-latch-fraught crash testing history would facially establish the issue to be one of sufficient real word importance to justify Ford’s commitment of substantial resources to addressing the problem. Second, the prolific inadvertent unlatch OSI history coupled with Ford’s persistent, well-documented refusal ever to have acknowledged the real world possibility of inertial unlatching, have painted Ford into a very damaging corner when it comes to false latching. Our offices noted in a recent case that Ford was on notice by 1992 of the following lawsuits cases involving an inadvertent unlatching of a RCF-67 buckle and resulting death or serious injuries:

Ford’s former executive director of its Automobile Safety Office, Robert Munson, has admitted in deposition with regard to each of the unlatching cases above, that because inertial unlatching is not physically possible in Ford’s view, had each of the Plaintiff/victims in each of the above cases been truthful in his/her assertion that each had secured his/her RCF-67 buckle prior to the accident, then each of these cases more-probably-than-not arose as a result of a false latch in an RCF-67 buckle. And there have been scores of similar claims and lawsuits filed since 1992 as to which the same Ford admissions would apply, making false-latching of RCF-67 admittedly most probable and leading cause of serious injuries and deaths of credible, suddenly unrestrained occupants of Ford vehicles so equipped.

Our offices have also discovered that despite initial planning and ample opportunity to convert RCF-67 buckles to false-latching proof end-release buckles in many of Ford’s vehicle lines, Ford deliberately declined to do so to save production costs. For example, with regard to the Ford Explorer, Ford initially proposed converting the buckles from RCF-67 to end-release buckles one half year into initial production. Instead, Ford elected to continue to use what it knew to be false-latching prone RCF- 67 buckles through at least the 1997 production year. The reason: in June and July, 1990, Pankaj Shah, an industrial engineer employed by Ford, and whose job was to save Ford money in production costs associated with the Explorer, published a memo in which he exclaimed that Ford could realize “a cost reduction opportunity” of $ 1.90 per Explorer if it reverted back to use of false-latching-susceptible RCF-67 side-release buckles instead of the false-latching-proof end-release buckles in future Ford Explorers. Ford welcomed the idea. In a June, 2000 deposition, Mr. Shah (now residing in India) first denied that Ford had ever had any concerns regarding false latching with the RCF-67 buckle, but grudgingly conceded on further cross-examination that the contrary was true and that Ford’s decision was solely about cost conservation despite the known risks of serious injuries and deaths which were indeed possible and happening with some regularity in the real world.

FMVSS 209 Testing in False Latching Cases

We have also found considerable evidence and a compelling argument that the subcomponent manufacturers of the RCF-67 buckles in question do not comply with those portions of FMVSS 209 designed to assess false latching (“partial engagement”) potential during their testing of those buckles, due in part to ambiguities of the regulation, in part to historical accident, and in part to a perception that false latching precluding passage of the testing is possible if the tests are conducted strictly and literally under the stated regulations.

49 U.S.C. §§ 30112(a) and 30115 require that all U.S. manufacturers of automobiles sold in the United States, including those sold by Defendants and each of them, comply with all applicable FMVSS. Safety buckles are among those discrete components which FMVSS require be tested as part of the certification process of a manufacturer’s vehicles. In 1964, the Department of Commerce adopted final regulations pursuant to a Congressional directive of December 13, 1964 (Public Law 88-201) which included 15 U.S.C. § 7.8(g) (22 FR 16973) [later renumbered 15 U.S.C. § 9.8(g)] (29 FR 18507) which in turn became one of many FMVSS binding on manufacturers as of January 4, 1969 (34 FR 115). Those regulations later became renumbered 49 U.S.C. § 571.209 S 5.2(g), which to this date states as follows:

“A metal-to-metal buckle shall be examined to determine whether partial engagement is possible by means of any technique representative of actual use. If partial engagement is possible, the maximum force of separation when in such partial engagement shall be determined.” [emphasis supplied]

The problem is that many of the subcomponent manufacturers of RCF-67 buckles, including Allied Signal ,TRW and Bendix, in turn subcontracted the testing to testing laboratories, such as Dayton-Brown, who admittedly never tested the RCF-67 buckles for individual vehicle certification “by means of any technique representative of actual use,” because the buckle components are tested outside the vehicle installation environment. These partial engagement tests all involve pulling the tongue from buckle in the same direction and plane as the direction of tongue and latchplate (resulting in the most minimal of force to accomplish withdrawal). But in the Ford Explorer, for example, the right front seat RCF-67 is rigid stalk-mounted, while the right rear seat buckle is rigid-steel-bracket mounted. As a result the direction of retractor pull on the tongue almost always comes from a side angle, making partial engagement all but inevitable during “technique[s] representative of actual use.” Yet no effort whatsoever is made either by the testing laboratories or by the buckle subcomponent manufacturers “…to determine whether partial engagement is possible by means of any [such] technique representative of actual use…” nor is “…the maximum force of separation when in such partial engagement…determined” as mandated by FMVSS 209.

While to our knowledge the issue of what minimal assessment is required to comply with 49 U.S.C. § 571.209 S 5.2(g) has yet to be enunciated by the court, the plain language interpretation of the regulation appears self-explanatory and unambiguous. It is uncontroverted that the subcomponent manufacturers do not comply with that plain-language meaning. In light of the absence of any supporting authority for ostensible noncompliance by the subcomponent manufacturers with § 571.209 S 5.2(g), and the general common law rule that violation of an FMVSS may serve as negligence per se (See, e.g., Cal. Evid.C. § 669; Fagerquist v. Western Sun Aviation, Inc., (1987) 191 Cal.App.3d 709, 723-726; McGee v. Cessna Aircraft Co., (1983) 139 Cal.App.3d 179, 186-187; Elsworth v. Beech Aircraft Corp., (1984) 37 Cal.3d 540, 549-551.), it is not surprising to us that more than a few subcomponent manufacturers have contributed their fair share to a settlement rather than establish adverse judicial precedent on point which could prove catastrophic in future litigation.

Moreover, in California and other states in which co-tortfeasors are held only severally liable for general damages, a waiver of special or “economic damages” at trial permits a false-latching plaintiff (or plaintiffs’ decedent) to settle with the automaker around the buckle subcomponent manufacturer with no set offs due the nonsetting subcomponent buckle manufacturer. This has caught off guard more than a few buckle subcomponent manufacturers, who normally assume their liability will be practically extinguished upon a settlement with the automaker. See, e.g., Hoch v. Allied Signal Co. (1994) 24 Cal.App.4th 48. These factors make it important to consider fully and aggressively litigating the false-latching case against not merely the primary automaker ordering the buckles, but the subcomponent vendor and testing laboratory as well.

Punitive Damages

Finally, one of the most compelling aspects of the false latching case is the ability to hoist the automaker by its own petard with an overwhelming volume of clear and convincing testimonial and documentary evidence all but conclusively proving that automakers such as Ford continue to use RCF-67 buckles, contrary to the proscriptions of their own product specifications and despite its admittedly and well-documented causation of myriad false-latching related deaths and serious injuries. Such conduct establishes a willful and conscious disregard for the rights and safety of buckle users for the automakers’ pecuniary gain. Under California law, such evidence comprises sufficient “malice” in a non-intentional tort case to support an award of punitive and exemplary damages. See, Cal.Civ.C. § 3294(c)(1); Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279; Seimon v. Southern Pac. Trans. Co. (1977) 67 Cal.App.3d 600; Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374, 381-382; and Donnelly v. Southern Pac. Trans. Co. (1941) 18 Cal.2d 863, 869-870.

Reconstructive Testing

One of the most problematic strategic dilemmas for litigants is whether to undertake recreative testing of the accident giving rise to the inadvertent unlatching. The risk of a poor outcome subject to discovery is potentially catastrophic to both parties. Of course, recreating an inertial unlatch under identical accident force conditions using buck, sled or other testing is highly problematic, prohibitively expensive, and fraught with obvious peril. False latching adds yet another uncertainty, because it is typically unknown how precisely the user only partially inserted the tongue into the buckle to begin with so as to recreate faithfully the subject accident. Of course, this offers an easier explanation for unattempted recreation of the accident. However, where the automaker and/or subcomponent manufacturer adamantly asserts that false latching is simply not possible in the subject vehicle as equipped, Kendal Few would be amazed at the proclivity of some of our videotaped demonstrations showing these vehicles to retain for a considerable period of time and under a wide variety of driving maneuvers, a false-latched tongue in a buckle purportedly restraining a model occupant surrogate. While the ultimate admissibility at trial of these vehicle demonstrations is potentially problematic, we find they serve an important impeachment function and benefit settlement dialogue significantly by calling the Defendant’s bluff when the possibility of a false latching has been denied outright.

Thinking “Outside the Buckle”

There is much additional evidentiary support available for false latching as a viable inadvertent unlatching theory which we are regrettably unable to disclose given the smothering tentacles of prior protective orders unfortunately lacking sharing agreements. When discussing false and inertial unlatching theories with our fellow members of the products liability bar, we find that some reluctance to embrace false latching not addressed above also emerges from pressure from inertial unlatching expert witnesses in the field as well as other practitioners who have urged all of us instantly to frame each RCF-67 inadvertent unlatch case as the product of either an inertial unlatch or a case of non-use of the available buckle altogether (i.e., no case at all). The other possibility of false latching, long resisted by the products bar, does require a little “thinking outside the buckle,” but finds a surprising and rewarding level of evidentiary support with a little aggressive digging, deposing, documentary discovery. As I think we have shown, it is a theory well worth equal if not superior consideration to inertial unlatching as the primary theory of inadvertent RCF-67 buckle unlatch.

Seat Back Failure Cases

One area of auto product crashworthiness of less notoriety, but which has witnessed rapidly increasing litigation interest is the heretofore little-known but surprisingly longstanding phenomena of seat back failure in domestic and imported passenger vehicles. Despite spotty, periodic interest by the national media, a vast majority of the public remains virtually unaware of the dangers to front and in particular, rear-seat passengers from the failures of front seat backs in rear-end collisions. American and Japanese automakers on the other hand have been more than amply aware of these dangers for the better part of three decades, yet have done very little to strengthen their vehicle’s seat backs to avoid these known dangers to the drivers and passengers of these vehicles.

This article is intended to offer some background on seat back failure and guidance in understanding and litigating seat back failure cases.

Another Ford Motor Company Story

In February, 1992, the CBS show “60 Minutes” broadcast a segment purporting to expose for the first time the unknown dangers to front seat passengers associated with the collapse or “yielding” rearward of front seat backs in rear-end impacts. As the segment revealed, most domestic and Japanese imported vehicles’ front seats shared a common style of seat design whereby the occupied front seat back of these vehicles would collapse or “yield” rearward even in a relatively low-speed, rear-end collision. The consequences of this characteristic included a properly-restrained, front-seated passenger “ramping-up” the collapsed front seat back rearward heard-first into the rear seat back, potentially resulting in serious head and neck injuries to the front-seated occupant. In addition to potential serious hear or spinal injury, the failure of his and/or her seat back would further render a driver unable to maintain control of the vehicle as (s)he slid rearward with both his/her hands and feet losing contact with the vehicle’s steering wheel and floor pedals. A less discussed consequence was the potential for death and/or serious injury to rear-seated occupants upon being struck by front-seated passengers and/or the front seats and/or front headrests themselves. CBS argued that the automakers were likely aware of these defects and the potential for injury as a result of certain Federal Motor Vehicle Safety Standard (“FMVSS”) Part 301 testing enacted in the wake of the Ford Pinto and Chevrolet Vega fuel-tank rupture/explosion incidents during the mid-1970’s. This FMVSS 301 fuel-system integrity testing mandated the performance and filming of 30-mph rear impact testing using test dummies in occupied front seats. In virtually every one of these FMVSS 301 tests the automakers’ front seats would fail and collapse rearward, resulting in the properly-restrained test dummies sliding head-first into the rear seats. CBS contrasted these findings with those of Mercedes-Benz’s vehicles whose seat backs were designed to higher standards to prevent their rearward collapse and potential for head and neck injury during similar rear-end accidents. Ford and the other U.S. automakers generally denounced the purported conclusions reached by 60 minutes, asserting instead that their seat backs performed extremely well in real-world conditions and claiming that the instances of seat back failure were statistically so rare that 60 Minutes’ claims were unfounded. Ford continues to maintain that position to this date.

Not surprisingly, Ford’s public denials are wholly inconsistent with and totally unsupported by the evidence of records gathered by these authors in their rear-seat back litigation with Ford to date. Shortly after the February, 1992 60-Minutes piece was aired, Ford commissioned a “Seat Back Strength Task Force” to look into the 60-Minutes allegations, headed by Ford’s Larry Fobes. At one of the very first task force meetings chaired by Mr. Fobes seeking to identify the extent of the seat back failure problem, a whiteboard memorandum was generated which candidly noted that, with regard to rear seat occupants being injured by a front seat back collapse, that “can and does happen in some number of events.” Indeed, this was no great surprise to Ford. As a result of FMVSS 301 testing on Ford’s vehicles which began in 1974, Ford was well aware (and has since so admitted in deposition testimony) that most of its vehicles front seats will collapse or “yield” rearward in rear end collisions as light as 15 to 20 miles per hour. Ford has conceded that if one of its rear seats does collapse and come into contact with a rear-seated occupant, there is a risk of injury to that person. Yet Ford’s task force deliberately sought to remain blissfully ignorant of the extent of injury potential posed by these seat back characteristics.

When asked what efforts Ford made specifically to assess or quantify the injury potential for rear seated occupants, particularly children, from failing front seats, Ford’s Fobes testified that “[t]hat was not something that we focused our work on.” Ford further admittedly has never done any rear impact testing whose specific purpose was to determine the injury potential to a properly restrained rear seat occupant from being struck by a yielding front seat. Likewise, Ford has admittedly neither design guidelines nor design recommendations regarding invasion of the rear seat occupant’s space in a front seat back collapse, nor has Ford adopted any standards limiting the permissible invasion of a rear seat occupants’s space by occupied front seats. Not that Ford did not have the opportunity to do or examples from competitors to follow. In 1992 Ford sent several of its task force representatives with its Automobile Safety Office (“ASO”) to Europe where Ford learned first-hand from Volvo, Mercedes, Volkswagen and Audi that all had specific standards designed to and which did prevent seat backs from yielding so as to permit front seated passengers from making contact with those in the rear seat during rear impact accidents up to the equivalent of 30-35 miles per hour. In late 1992 and early 1993, one of the Task Force’s leading engineers, Robert Mezzadri, proposed an interim design standard which would have increased seat back strength of Ford’s vehicles seats to mirror those generally of the Europeans’ in order to prevent seat back failures in a majority of rear end impact accidents. While the executive director of Ford’s ASO privately praised Mezzadri’s interim design proposals in a January, 1993 memorandum, that very same Ford executive just two days later authored on Ford’s behalf a formal response to a NHTSA inquiry on the need for strengthening seat backs, adamantly asserting that there was no evidence of any potential for seat back failure-related injury and declaring any such proposals unnecessary, infeasible and cost-ineffective. Mr. Mezzadri’s proposal was never mentioned in Ford’s response to NHTSA which was forever thereafter buried.

At the same time, Ford had amassed substantial evidence from a variety of sources that its seat back failures in rear-end impacts were the cause of substantial numbers of deaths and serious injuries. In 1993, Ford’s executives had peer-reviewed SAE Paper 930346 entitled “Field Accident Evaluations and Experimental Study of Seat Back Performance relative to Rear-Impact Occupant Protection,” which confirmed Ford’s task force’s conclusions as to the numerous casualties actually sustained from real-world seat back failures. Ford’s dealer warranty claims database (MORS) revealed scores of instances of reports of head and leg injuries to children in rear seats from collapsing front seats. In two high-profile cases, a 1990 Arizona case called Zuern v. Ford and again in the 1991 Michigan case styled Traxler v. Ford, Ford was placed on notice that the failure of its seat backs had resulted in serious head and leg injuries to properly restrained children in the rear seats of two of its vehicles. Additionally, Ford was routinely furnished by NHTSA over the years with hundreds of Vehicle Owner’s Questionnaires (VOQ’s) in which Ford’s vehicles’ owners reported to NHTSA numerous moderate and severe injuries to occupants of Ford’s vehicles, both in the front and rear seats, resulting in some manner from the collapse and failure of front seats. Ford has testified that it has never investigated even a single one of the reported MORS and VOQ injuries involving failed front seats in rear-end impacts. Nor has Ford ever conducted any dynamic impact testing to ascertain the real world potential and frequency of such injuries.

Moreover, since airbag warnings have been posted recommending parents’ placement of small children in the rear seats of their vehicles, the potential for serious injury to and/or death of properly-restrained rear-seated has been considerably heightened. Nonetheless, Ford has admitted that it has done no testing to determine what parts of rear seat-occupied child’s body may be potentially contacted by yielding front seat in 30-35 mph rear-end impact. Nor has Ford ever conducted any rear impact testing where the specific purpose of the test was to determine the injury potential to a properly restrained rear seat occupant from being struck by a front seat occupant yielding backward. And despite the emphasis on relocation of children in rear seats to avoid airbag injuries, Ford has taken no steps to avoid injuries to rear seated occupants from yielding front seats.

At the same time, Ford was aware of an abundance of alternative feasible designs which would have prevented rear-seated occupant injuries from collapsing front seats which Ford ignored outright. A primary cause of seat back failure in modest speed rear-end impacts, is the existence of only a single recliner mechanism asymmetrically mounted on the outboard side of the front seat. All of the strength of the seat in a rear end impact must be borne by the single recliner during an impact when the front seated occupant’s center of mass moves rearward against the seat back, the forces of which are usually beyond the structural load limits of the single recliner. One of Ford’s own solutions to this problem lay in the dual-recliner seat design utilized in Ford’s Taurus/Sable program, which Ford admitted cost Ford only $ 4 to $ 6 more per vehicle. Ford declined to extend this design to its other vehicle lines. But even as of 1992 Ford’s after–market competitors offered stronger seats capable of withstanding rear-end impacts, including those manufactured by Johnson Controls. Better yet, Ford had belt-integrated seat technology available which Ford had tested as early as the early 1970’s. The belt-integrated seat employs a restraint system built into the seat itself, requiring the seat to be strengthened to keep the front seat occupant properly restrained in a frontal impact. The strengthened seat necessarily provides equally effective protection against seat back failure rearward in a rear end impact. While Ford was still claiming the lack of feasibility of stronger seats, Chrysler introduced the belt integrated seat design into its 1996 Sebring, and subsequent testing has shown that the Sebring seat does indeed protect rear-seated occupants from front seat collapse injuries in all but the most severe rear-end impacts. Even a supplemental seat belt strap mounted after-market behind the front seats of Ford’s vehicles will successfully prevent front seat collapse into the rear seated passenger’s zone of occupancy in most moderate speed rear impacts. Even in 1994, Ford had developed and sold its “Ford transit Van” in Europe which had strengthened seats impervious to rearward collapse during most moderate speed rear-end collisions. Ford has to date rejected virtually all of these alternative feasible designs continuing its manufacture and sale of vehicles with known propensity for rear-seat back failure and admitted dangers of death and serious injuries to rear seated occupants, especially children.

Ford is not alone. Most of the domestic and Japanese automaker’s vehicles are equipped with seats which seat backs collapse rearward in modest rear-end impacts, and virtually no action has been taken either to rectify these deficiencies or to warn passengers of these vehicles of these known dangers to rear-seated occupants, and children in particular.

Litigating Seat Back Failure Cases

The two primary product liability theories advanced in seat back failure cases include design defect and failure to warn. A design defect in California may be proved alternatively through the “consumer expectations” test (the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner) or the risks-benefits test enunciated in Barker v. Lull (1978) 20 Cal.3d 413 (there is a risk of danger inherent in the design which outweighs the benefits of that design). As to the latter test, the trier of fact will consider, among other things, the gravity of the danger posed by the design, the likelihood that the danger would cause damage, the mechanical feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design. Barker, supra, 20 Cal.3d at 431; BAJI 9.00.5.

Under a failure to warn theory, a product is defective if the manufacturer of a product has a duty to warn of dangers, and fails to provide an adequate warning of that danger. A manufacturer has a duty to warn if 1) the use of the product is in a manner that is reasonably foreseeable by the (manufacturer, etc.) involves a substantial danger that would not be readily recognized by the ordinary user of the product, and 2) this danger was known or knowable in light of the generally recognized and prevailing best scientific knowledge available at the time of the manufacture and distribution. See BAJI 9.00.7; Finn v. G.D. Searle & Co. (1984) 35 Cal.3ed 691, 699.

As can easily be seen from the evidence adduced against Ford, whether asserted against Ford, or its competitors equipping their vehicles with equally weak seats, both theories are well-supported by substantial contemporarily-available evidence of record.

As to design defect, there are important strategic reasons why the Plaintiff would elect to invoke the rule enunciated in Soule v. General Motors (1994) 8 Cal.4th 548, which precludes the use of expert opinion evidence in cases in which the Plaintiff elects to proceed with the design defect theory solely under the consumer expectations test. Ford’s and other manufacturers’ principal defense in seat back failure cases is a volume of what can only be charitably described as virtual junk science, which asserts that biomechanical testing performed by in-house engineers allegedly proves that strengthening their front seat backs would result in an unquantifiable increase in purported whiplash injuries. In making such claims, the manufacturers have found a means of bringing a substantial volume of mostly meaningless hearsay statistics and inherently confusing and incompetent data before a jury. The chief point suggested is that the manufacturers are somehow confronted with some “Hobson’s choice” as to which group their alternative seat designs should theoretically inflict more injury. However, the phenomena of seat back failure would appear to be the type of defect which is squarely triable exclusively on a consumer expectations theory.

While Soule, observed that many types of product defects are only resolvable with the assistance of expert testimony, there are some types of defects which are so manifest even within the lay experience that no expert testimony is necessary or relevant. In this instance, ordinary consumers have the right to expect that while sitting at an idle stop, their front seats will not catastrophically fail and collapse rearward onto, seriously injuring or killing their children belted into the rear seats in the event they are rear ended at 30-35 mph. Because “…plaintiff in [a] product liability action [is able to] prove[] that [the subject] vehicle’s design produced such a result, the jury could find forthwith that the car failed to perform as safely as an ordinary consumer would expect, and was therefore defective.” Soule, supra, 8 Cal.4th 548, 566, fn.3. If the Court agrees, and Plaintiff waives any risk-benefits theory of design defect, then no expert testimony is admissible as a matter of law. Id. 8 Cal.4th at 566.

In urging a court that seat back failure is indeed a defect within the common lay experience, use of FMVSS 301 testing on the subject vehicle is highly persuasive. The typical lay reaction to an FMVSS 301 test showing the front seat test dummies projected rearward into the rear seats upon impact provokes a universally shared sense of shock and surprise, as most potential jurors will exclaim that they had no idea this could happen in a rearender. With exclusion of the manufacturers’ experts’ junk science testimony the defense case is significantly weakened.

A second area of critical vulnerability of defense expert testimony in seat back cases is a Kelly challenge in state court, and a Daubert challenge if the matter is venued in a U.S. District Court. Although the California Supreme Court has declined to adopt the federal gatekeeping standard of Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (People v. Leahy (1994) 8 Cal.4th 587), in People v. Kelly (1976) 17 Cal.3d 24, a unanimous California Supreme Court set forth certain "general principles of admissibility" of expert testimony based on new scientific techniques, including the a "traditional" two-step process: (1) The reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. Kelly, supra, 17 Cal.3d at 30. With regard to “new scientific techniques,” Kelly adopted the requirement that foundational evidence be introduced to show that any such new techniques have gained general acceptance in the particular field. Ibid. Of course, under the Supreme Court’s decision in Daubert, the trial court is required to perform a screening under Federal Rules of Evidence Rule 402 (1975) to ensure that under Fed.R.Evid. Rule 702 "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Ibid. In regard to the latter, whether an expert’s “new” techniques have been accepted following peer review, as opposed to merely prepared solely for use in litigation, is a highly relevant consideration in ascertaining scientific “general acceptance” of the new techniques.

Under both Kelly and Daubert the manufacturers’ biomechanical evidence is extremely vulnerable. The methods utilized by the manufacturers’ biomechanics to gather evidence of allegedly higher whiplash potential in stiffer seats is largely anecdotal and poorly documented. Very little competent crash and rear-impact barrier testing has been performed to substantiate the claims made and these authors are at the time of this writing unaware of any genuine peer review acceptance of the testing methods utilized by the manufacturers from which their in-house biomechanics’ opinions are self-servingly derived. Moreover, much of this testing appears to have been done solely for use in defending seat back failure litigation. Since whether the consumer expectations test is appropriate in such cases is a decision made by the judge only at the start of trial, hedging one’s bets as to the admissibility of expert evidence at trial requires thorough deposition and documentary expert witness discovery on the foundational elements of general acceptance of the manufacturer’s testing and methods employed in anticipation of highly-recommended aggressive Kelly or Daubert challenges made on carefully-crafted motions in limine.

Similarly, careful selection and retention of the appropriate experts in seat back failure cases must include experts amply knowledgeable of documented and peer-reviewed research performed on seat back failures in rear-end impacts and reliance upon properly instrumented testing. Familiarity in addition with the methods utilized by defense expert testing is additionally an important expert witness assert during highly-recommended eve-of-trial Kelly or Daubert challenges.

In order to prove the prima facie elements of design defect and failure to warn theories in seat back failure cases, critical discovery to be obtained at an early date in such seat back failure cases should, at a minimum, include: (1) All FMVSS 301 testing data and films/tapes performed by the manufacturer for certification of the subject vehicle and all predecessor vehicles; (2) All NHTSA VOQ’s furnished to the manufacturer concerning seat back failure-related injuries not merely in the same make and model of vehicle but in all vehicles with similar seat recliner designs; (3) All internal customer warranty database complaints of seat back failure, again not merely in the same make and model of vehicle but in all vehicles with similar seat recliner designs; (4) Evidence of all prior OSI’s (Other Similar Incidents) regardless of whether suits or claims were filed, involving allegations of injury and seat back failure, again not merely in the same make and model of vehicle but in all vehicles with similar seat recliner designs; (5) All documentation pertaining or referring to the 1992 CBS 60 minutes broadcast; (6) All documentation pertaining or referring to any and all investigations of seat back strength and/or alternative feasible designs related thereto including belt-integrated seats; (7) All documentation pertaining or referring to any communications with NHTSA regarding seat back strength; and (8) evidence of any and/or all dynamic rear-impact testing involving the yielding of the front seats of any manufacturer’s vehicles. Although one may expect vigorous initial objections by the manufacturers to provision of discovery relating to anything beyond the precisely same make and model, remember that the standard for admissibility and discovery of even tangentially-related OSI’s is extremely broad in failure to warn cases. At trial, “[e]vidence of prior accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided the circumstances of the other accidents are similar and not too remote.” Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555, citing, Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 121-122. “Moreover , even if the accidents did not occur in precisely the same manner as in the present case, testimony regarding the accident that occurred prior to the crash of the [subject product] in this case [i]s admissible to show that the [manufacturing defendant] had notice of a dangerous condition. For this purpose, ‘all that is required…is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation…’” Elsworth, supra, 37 Cal.3d at 555, citing, Hasson v. Ford Motor Company (1982) 32 Cal.3d 388, 404. As such, even at trial, prior OSI’s involving injuries sustained by occupants from yielding front seats in rear-end impacts involving even other makes and models is certainly sufficient “to attract the defendant’s attention to the dangerous situation…’” making the evidence admissible outright at trial, Elsworth, supra, 37 Cal.3d at 555, let alone sufficiently “reasonably calculated to lead to the discovery of admissible evidence,” to oblige its production in pre-trial discovery. C.C.P. § 2017(a).

That a failing rear seat is defective under the consumer expectations test is often bolstered by anticipated deposition admissions from the manufacturers’ directors of their safety offices that they do not expect the average consumer to expect his or her front seat backs to fail in a modest rear-end impact and potentially strike their properly-restrained rear-seated children. Moreover, the manufacturers’ corporate designees can further be expected to testify that most of their make and model vehicles’ front seats will collapse rearward in 15-20 mph rear end impacts as depicted in the virtually all of the FMVSS 301 testing videos by which those vehicles were certified.

Under the risks-benefits test, one may expect these same designees to agree there is little if any benefit to a rear-seated occupant from a collapsing front seat during a rear end impact. Of course, this makes a rear-seated occupant personal injury and/or wrongful death case far stronger than a front-seated passenger rear–impact injury case where the manufacturers may ply their “Hobson’‘s choice – whiplash floodgates” argument more effectively in resisting front seat back strengthening. Also serving notice on the manufacturers of the dangers of collapsing front seats are a growing volume of peer-reviewed literature conclusively documenting a propensity for serious rear-seated passenger injury from collapsing front seats in rear-end impacts, including papers recently published by Saczalski, Burton, Friedman, Saczalski: “Study of Seat System Performance Related to Injury of Rear Seated Children & Infants in rear Impacts” (2002); and an older SAE Paper 930346 (Feb. 1993) “Field Accident Evaluations and Experimental Study of Seat Back Performance relative to Rear-Impact Occupant Protection.” The fact of injury in the case at hand itself reaffirms these dangers along with prior verdicts, even if rendered against other manufacturers, e.g., Zuern v. Ford – 1990 (serious head, leg injuries sustained by 5-year old properly restrained in rear seat) and Traxler v. Ford – 1991 (serious head, leg injuries sustained by child properly restrained in rear seat). Discovery as to NHTSA VOQ’s and internal manufacturer field complaints and warranty claims reports are also an important source of notice. Discovery should also focus on the extent of the manufacturer’s investigative response to these claims, which can be usually expected to be reported as nil (although the truth will likely never be known absent a wholesale waiver of attorney-client privilege). Aggressive discovery will likely also disclose a manufacturing preference to remain ignorant of the genuine extent of potential risks and harm to rear-seated occupants despite ample opportunity to engage in meaningful dynamic rear-impact testing which, from an engineering perspective, could easily be conducted concurrently with FMVSS 301 fuel-system integrity testing at very little increased marginal cost. While such willful ignorance is obviously intended to create a vacuum of alleged notice on the manufacturers’ part as to these known dangers to rear-seated occupants, it is on the other hand compelling evidence of a conscious disregard necessary to support the “malice” requirement for imposition of punitive damages on unintentionally tortious conduct, discussed below. See, Civ.C. § 3294(c).

There is also a rapidly expanding plethora of evidence of cost-effective alternative feasible designs discussed briefly above, which are highly damaging to the manufacturers’ comparatively pathetic defenses to product defectiveness, not the least of which are fact of expanding use of belt-integrated seats in new vehicle lines. The very employment of stiffer belt-integrated seats alone impeaches the entire “whiplash floodgates” theory absurdly which continue to be advanced by the manufacturers’ biomechanical experts against such seat back strengthening.

Punitive Damages

As the evidence above suggests, strong arguments for punitive damages can be made in seat back failure cases particularly with regard to failure to warn. Under California law, punitive damages in non-intentional tort cases are supported by evidence of a conscious disregard of rights or safety of a plaintiff to advance a defendant manufacturer’s pecuniary interests. See, Civ.C. § 3294(c)(1); Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279; Seimon v. Southern Pac. Trans. Co. (1977) 67 Cal.App.3d 600; Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374, 381-382; and Donnelly v. Southern Pac. Trans. Co. (1941) 18 Cal.2d 863, 869-870.

The evidence adduced through thorough discovery in any such cases will conclusively demonstrate the manufacturers’ awareness from FMVSS 301 testing, prior OSI’s, adverse verdicts, NHTSA VOQ reports, contemporary scientific literature, and the inferences inescapably drawn from the increasing adoption of from belt-integrated seats that they have known from decades of the significant and palpable dangers to children and rear-seated occupants of injury from collapsing front seats. Yet at no time have the automakers ever undertaken to warn of these dangers despite the ease of doing so, at no greater expense than the costs of warning front seat passengers of the dangers posed by airbags. Why no warnings have ever been given is simple: there is no safe place in most of these vehicles for rear-seated occupants in the event of a rear–end impact other than in the front seats, where children are at particularly risk of injury in the event of airbag deployment in frontal collisions. Clearly were warnings given as the common law requires, these vehicles would probably not be purchased by concerned parents to begin with. Further, as noted above, the substantial volume of clear and convincing evidence of manufacturer awareness of the risks yet indifference to a mandatory duty at least to warn, leads to an inescapable conclusion of conscious disregard of the rights or safety of plaintiffs by the automakers solely to advance their pecuniary interests.

Combating the Bullet Vehicle Defense

In light of the overwhelming evidence of design defect and failure to warn, it would appear surprising that these cases are so often litigated through trial. One of the principal explanations for this is the relative infrequency of rear-impact injury cases (as compared with a greater number of other directional impact accident scenarios) coupled with ubiquitous manufacturer blame of bullet-vehicle drivers causing for the accident. The cases which have gone to verdict underscore the effectiveness of this defense, which predictably increases proportionally with the relative speed of the bullet vehicle.

Actual dynamic research and testing using instrumented Hybrid-3 dummies reveals that the serious injury threshold for rear seated passengers arising from front-seat back failure may lie at rear-impact changes in velocity (Delta-V’s) as little as 10-15 miles per hour, and increases geometrically with a linear increase in rear impact Delta V’s. However, that same testing has revealed that the chest g’s and HIC (Head Injury Criteria) values encountered even in 25 mph Delta-V rear-end impacts accidents (equivalent to a 35 to 40 mile per hour rear end impact) do not alone present injury potential to the rear seated occupant in the absence of their being struck by a failing front seat and/or the front seat occupant. Defense biomechanical literature likewise is devoid of support for the notion that a moderate rear-impact, standing alone, has any significant propensity for causing rear-seated occupant injury.

In other words, there is a critical distinction which must emphasized by the Plaintiff in seat back failure cases between accident causation on one hand and injury causation on the other. By law, apportionment of Plaintiffs’ damages as among joint tortfeasors and others is to be predicated on the latter not the former, see, BAJI 16.00, but the distinction, especially in a juror’‘s mind, is frequently obscured at trial. Under California law, causation in any personal injury or wrongful death case may only be proved through competent expert medical testimony rising to the level of a reasonable probability. See, Jones v. Ortho Pharmaceutical Corp., (1985) 163 Cal.App.3d 396, 402-403. Consequently, prudent pretrial preparation requires anticipation of the need for expert medical (and in all probability biomechanical) testimony on the distinction between the injuries inflicted by a failing seat, and those which could have been anticipated even under precisely the same accident facts (usually none) had the manufacturer merely installed a stiffer seat.

While this evidence is unavoidably costly to present, the verdict history of seat back failure cases suggests there will always be some inescapable apportionment of fault to the bullet driver regardless of the quality of Plaintiffs’ expert medical causation testimony. In these authors’ opinion, thorough, well-reasoned and well-supported expert medical and biomechanical opinion evidence is the single most critical factor in minimizing the bullet vehicle driver’s perceived allocation of fault, the importance of which in producing satisfactory settlements and verdicts in these seat back failure cases cannot be understated.

Concluding Thoughts

While the ultimate results in these cases may prove satisfactory for the client, success in these cases does not come cheaply, or by accident. Seat back failure/injury cases may prove among the most costly of any a practitioner has experienced, but they are righteous cases. The rapidly increasing use of belt-integrated seats is compelling circumstantial evidence of the important safety function performed by the Plaintiffs’ bar in improving the safety environment for rear-seated occupants (especially since the “styling” rationale primarily given by manufacturers for installation of more expensive belt-integrated seats does not appear alone cost effective, unless also intended to serve as an safety enhancement.) But if this job is with doing at all, it must be done very well, particularly in seat back failure cases. To prosecute a case properly likely requires one or more reconstructive dynamic impact tests be conducted, that OSI and out-of-state deposition discovery be aggressive, and that the appropriate cadre of medical and biomechanical experts be consulted at an early date. As such, we recommend careful risk-reward evaluation at the outset of each case, as well as strong consideration of association of co-counsel willing to participate in the arduous discovery demands as well as potentially formidable financial risks inherent in these cases.

Rollover Accidents

Rollover propensities are perhaps the most active areas of current product litigation. It is well-known that most SUV’s and to an even greater extent, 15-passenger vans, have a center of gravity so high and a wheel base so comparatively narrow, that they are particularly subject to easy loss of directional control, particularly at high speed, and rollover. Because of the demonstrated inability of the roofs of these vehicles to bear their own weight when inverted, rollover almost causes involves roof crush leading to catastrophic injuries to vehicle occupants. While SUV’s remain almost equally inherently problematic in this regard, the dangers of rollover and roof crush are epitomized by the 15-passenger Van.

The casualty statistics for 15-passenger Vans are even worse than for all of the infamous Ford–Firestone blowout/rollover cases worldwide combined: during the five-year period up through 1999, 279 people died and hundreds more were seriously injured in single-vehicle rollovers of 15-passenger vans, according to the database of the federal Fatality Analysis Reporting System. Because of the special-use nature of these Vans, the tragic nature of these rollover accidents is heightened: most of the victims are students, members of fraternal organizations, church and community social groups. A collegiate liability insurance carrier recently reported that 71 rollover accidents involving 15-passenger vans has caused the deaths of a combined 126 college students, most of them athletes involved in intercollegiate sports, since 1993. A look at some of these specifics of these cases highlights a disturbing pattern.

A Sampling of 15-Passenger Van Accidents

On May 12, 2001, a Ford Econoline Van carrying fourteen college students on Interstate 40 in Palestine, Arkansas rolled over five times after the driver lost control of the vehicle, veering first into the median, and then across the traffic lanes onto the shoulder. The Van traveled 640 feet before it rolled over. Two occupants died, and another 12 were injured, two very seriously.

On May 8, 2001, a 1993 Dodge 15-passenger Van carrying 12 church members suffered a rear tire blowout, left the roadway and rolled over several times on U.S. 287 between Henrietta and Jolly, Texas. Four passengers were killed and eight seriously injured.

On January 26, 2001, a 15-passenger DaimlerChrysler Dodge Van carrying eleven people on Interstate 55 in Illinois, lost control, crossed the median and flipped into oncoming traffic. Ten of the passengers were killed immediately, and the twelfth died of massive internal injuries shortly thereafter — the worst accident in Illinois history in 47 years.

On July 8, 2000, a rented Dodge 3500 Van carrying a teacher and ten students on a field trip on Arizona State Highway 64 lost control and rolled over 1-1/2 times. A passenger and the restrained driver were killed. Nine others were seriously injured. One of the witnesses reported that the driver fought unsuccessfully to control the van which was weaving back and forth across the road before control was finally lost.

On March 8, 2000, 15 miles north of the Nevada-California border on Interstate 15, the driver of a Dodge 3500 Van rented to him the day before by Thrifty Rent-a-Car Systems lost control of the Van south of Las Vegas. The Van skidded off the highway and overturned several times, killing eight and severely injuring the remaining five occupants. Six of the passengers were ejected and received fatal injuries. Two passengers received fatal head wounds when the roof of the Van crushed during the rollover sequence. To date, it remains the worst single-vehicle accident in Nevada history.

On February 10, 2000, a 15-passenger Ford Econoline Van carrying 10 members of the Prairie View A & M track and field team lost control and rolled over near Karnack, Texas, killing four of the students and critically injuring the remaining six.

On August 16, 1999, barely seven months before the March 8, 2000 Las Vegas accident, above, in an almost identical accident fact pattern, another Dodge 3500 Van (also rented by Thrifty Rent-a-Car to a church group for use on a religious retreat), lost control, left the roadway and rolled over numerous times on Northbound Interstate 90 bear Buffalo, New York. Four people, including the driver, were killed, and the remaining seven were seriously injured. The police report noted that the skid marks showed the driver of the Van fought unsuccessfully to keep the van on the roadway, but each time the steering over-correction exacerbated the loss of steering control over the Van in the opposite direction. After the vehicle swayed back and forth in the number 1 lane several times, it finally ran off in the median and rolled.

On March 25, 1999, a Dodge Ram Van containing 14 passengers on Interstate 90 near Janesville, Wisconsin, lost and control and overturned. Twelve of the occupants were ejected, with six suffering fatal injuries and the remaining six suffering severe head injuries. One of these passengers later died of his head wounds. One young female passenger suffered quadriplegic injuries. Once again, the driver fought to maintain control of the Van with the vehicle weaving back and forth across the lanes of traffic before finally leaving the roadway and then rolling several times. The accident was the fourth worst in Wisconsin history.

Numerous other accidents involving 15-passenger vans mark a similar set of accident facts, with most of these accidents occurring when the Vans are loaded with 10 or more passengers.

Why 15-Passenger Vans Lose Control and Roll

All three of the major automakers manufacture 15-passenger Vans, which for the most part are derived from their existing truck chassis models. This adaption allows the manufacturers to cheaply produce 15-passenger Vans at little marginal cost yet with huge profit potential.

However, significant vehicle control and lateral instability issues are raised by mounting a 15-passenger van body on a pick-up truck chassis. First, as the 15–passenger Van is filled with 10 passengers or more, the center of mass/gravity of the vehicle begins to move upward and rearward, with the wheelbase remaining unchanged. As a result, the propensity of the vehicle to roll, as traditionally measured by static stability index (defined as T/2H, with T = track width and H = Center of Gravity height of the Vehicle.) is greatly increased. These reasons for this can be seen in examining the factors involved in a vehicle roll-over.

When a vehicle engages in a cornering maneuver on a flat (non–banked) surface, the lateral forces of the tires gripping the roadway counterbalance the lateral acceleration of the vehicle’s center of gravity and keep the vehicle upright. As the lateral acceleration of the vehicle’s center of gravity builds, the load applied on the wheels on the inside of the turn are reduced. This causes the vehicle to resist the roll moment in the cornering process. However, if the load on the wheels inside the turn reach zero, allowing the outside wheels to accept all of the load, a rolling moment will begin because the vehicle is no longer stable in the roll plane. As long as the cornering capability of the tires is exceeded by the lateral acceleration at the center of gravity, the vehicle will not roll. Instead the tires will skid and the vehicle’s rear end will spin out. But where the center of gravity of the vehicle is significantly raised and moved aft, as it is with fully-loaded 15-passenger vans, it will generally not exceed the cornering capabilities of the tires, and the vehicle’s tire will dig in first, usually coming off the rims (called debeading) causing the vehicle to begin rolling about its longitudinal axis.

This is intuitively seen by comparing with a vehicle with a wide wheel base whose center of gravity is extremely low to the ground, such as an Indy racecar, to one with an extremely high center of gravity and very narrow wheelbase, e.g., a motor home. If both take a curve on a flat surface at high speed, it is expected that the Indy car will spin out before rolling over. In contrast, the motor home will likely rollover into the turn before its back end tires spin out. If the same motor home’s rear axles were modified to increase track width substantially (e.g., by adding dual wheels to each side of the rear axle), it could be intuitively seen that the likelihood of a rollover would be lessened, all other things held equal.

The static stability factor of T/2H, first proposed in a 1990 SAE paper entitled “Engineering Parameters Related to Rollover Frequency,” was intended to offer a measure of predictability of rollover propensity in vehicles. As the track width (T) is reduced or the Center of Gravity Height (H) is raised, the static stability factor (“”SSF”) is reduced, meaning that the rollover propensity of the vehicle increases. As a general proposition, as the SSF declines below 1.5, the vehicle becomes increasingly susceptible to inadvertent oversteer, loss of control and rollover during ordinary driving conditions. In the case of these 15-passenger Vans, however, as additional passengers are loaded into the Van at the manufacturer’s invitation, the SSF drops as low as .8, making the vehicle essentially inherently dangerous, uncontrollable and quite deadly upon the most minor of abrupt steering inputs.

This is because added to these los SSF danger is the “oversteer” problem, created by the fact that the Center of Gravity also moves rearward as the Vans are more heavily loaded. Simply stated, becaus so much of the mass of the vehicle is rearward, a sudden steering input such as an evasive maneuver to avoid a roadway obstacle will result in the front end of the vehicle moving in the direction of the steering wheel, yet the inertial of center of mass near the rear end of the vehicle will result in the rear end continuing to travel in the same direction as before the input. It is the equivalent of ground looping the vehicle. The only way to regain control is to steer in the same direction as the rear end of the vehicle until control is regained and then slow the vehicle. But this is not an intuitive maneuver for nonprofessional drivers. Consequently, given the mass of these 15-passenger Vans, few even experienced drivers have the skill or training required to bring a 15-passenger Van under control following an oversteer maneuver. Of course, once the “oversteer” has caused the vehicle’s rear end to begin moving laterally, the extremely low static stability all but insures a rollover.

The final ingredient completing the rollover catastrophe is the fact that once the Van rolls, the pillars supporting the roof are of insufficient strength to keep it from crushing the Van’s occupants, who typically sit high above the window sills of the vehicle. Compounding this problem is the fact that most riders in these Vans are not accustomed to wearing seat belts, any more than are most us who are shuttled repeatedly in these Vans to and from the car rental offices and hotels near airports. This has accounted for a number of accident fatalities from ejections, notwithstanding the fact even a properly-restrained passenger in these Vans has little chance of avoiding death or serious injury as a result of roof crush.

Compounding these design flaws is the fact that the 15-passenger Van’s manufacturers have never tested these vans for rollover propensity, nor are they subjected to event he limited tested performed at full loads equivalent to their capacity. The limited roof crush testing required by Federal Motor Vehicle Safety Standard 216 which does not even come close to duplicating the dynamic forces at work on the roof of the Van during an actual rollover, which have been measured in one SAE-published roll-over test as in excess of 300 g’s at each of the roof support pillars. As a result, despite a myriad of deadly accidents and the fact that abrupt steering inputs and evasive maneuvers are an obviously foreseeable part of ordinary driving, the manufacturers have no idea at what point their 15-Passenger Vans will roll, nor at what point of a particular steering input a loss of control due to oversteer will occur. Further, only Ford Motor Company offers any warning concerning its Vans in its owners’ manual, which most rental drivers of these Vans never read.

The Human Factor

With the stage set for catastrophe based upon the inherently defective design of these 15-Passenger Vans, is the further contributing human factor of inexperience. Because of their large passenger capacity and the fact that vehicles with any larger capacity typically require dedicated bus driver licensing, these Vans are specifically marketed to schools, church and fraternal groups looking for cost-effective transportation of large contingents of people without the need for a professional drivers’ license. As a consequence, most of the drivers of these 15-Passenger Vans are young and/or are community volunteers possessing even less vehicle-handling experience than the average driver, certainly no match for a 15-Passenger Van skidding laterally on a highway following an unexpected, evasive maneuver. In almost all of the most serious of 15-passenger Van accidents, the drivers carrying community groups of people were relatively inexperienced and possessed no professional or truck-driving training.

In addition, the unique cargo potential of these Vans and the fact that most individuals would not buy a 15-Passenger Van for personal purposes, relegates to the rental car market most of these vans. Thrifty Rent-a-Car, formerly wholly owned by Chrysler before Chrysler was acquired by Daimler-Benz in 1998, possesses the largest fleet of Dodge 15-Passenger Vans in the Country. Despite evidence of numerous prior accidents involving 15-Passenger vans it had rented to the public, Thrifty failed to offer any warning to the public about the dangerous characteristics of these vans until months after the April, 2001 NHTSA Consumer Warning. Since then Thrifty franchisees were warned of the Van’s characteristics and were required to have 15-Passenger Van renters execute an addendum to the rental agreement acknowledging the Van’s stability characteristics. In practice, however, the degree of franchisee compliance and notice to renters has been understandably highly questionable, since few nonprofessional drives would likely rent a 15-Passenger Van upon being told the truth about its known dangers.

The Warnings by the National Traffic Highway Safety Administration

The rollover propensity problem inherent in 15-Passenger Vans was of sufficient concern in regard to all of the major automakers’ similar large vans that the National Highway Traffic Safety Administration (“NHTSA”) on April 9, 2001, issued an unprecedented warning (“Consumer Advisory”) to the public of the dangers posed by the rollover propensities of these vehicles, and referenced NHTSA’s analysis of the rollover characteristics of the Dodge 3500 and other similar 15-passenger Vans. Again on April 15, 2002, NHTSA published a Second Advisory recommending that these vehicles not be driven by nonprofessionals.

Litigating the Cases

These cases have proven troublesome to the manufacturers with juries, resulting in a host of significant adverse verdicts. A Kentucky jury awarded #20.1 million against Ford in 1999, following the crash of a Van carrying Australian teenagers to an international equestrian competition. Three people died and others were seriously injured. As with each of these cases, the manufacturer blamed the accident on unsafe driving.

A Florida jury awarded $31.5 million against the manufacturer of a 15-passenger Van precipitated by a tire failure, prior to a reduction for comparative negligence.

Ford settled the Prairie View A & M case. General Motors settled a 1992 GMC 15-Passenger Van case causing one death and incomplete paraplegic injuries to another.

The March 8, 2000 Las Vegas accident, handled by a team including the authors’ office, resulted in a confidential settlement by DaimlerChrysler in March, 2002. DaimlerChrysler has since announced that it will no longer manufacture the Dodge 15-passenger Van after the current model year, citing not safety concerns, but rather “poor market interest.”

As more information about these dangerous vehicles has become publicly available, there has been an increasing trend for manufacturers to settle these cases. When they are settled, the settlements can be highly lucrative.

But these cases should not be taken on without a large war chest and the resolve to spend hundreds of thousands of hours involving in document review, law and motion, and tens of thousands of dollars necessarily paid to retained experts. To a far greater extent than even with other product liability cases, careful assessment of the ultimate damages outlook in the case is essential up front before a 15-passenger van case is considered to be taken on.

Indeed, do not expect Ford or DaimlerChrysler to offer up any serious settlement money unless the case is properly prepared — and such preparation will be very expensive — even by product liability case standards.

Minimum preparedness requires prompt isolation and preservation of the vehicle, thorough reconstruction of the accident including an advisable computer-animated reconstruction simulation, a record made of all known percipient witness testimony, acquisition of all known photographs of the accident site and vehicle, a detailed and meticulous vehicle inspection by qualified experts, extensive written discovery to secure the tens of thousands of documents from the manufacturer pertaining to the design and testing of the vehicle and to OSI’s (“Other Similar Incidents”), i.e., prior accidents, suits and dealer, warranty and customer claims and complaints. Be prepared for substantial law and motion which will likely be required before the manufacturer will produce anything of value or substance.

Once the pertinent documents have finally been received and reviewed, numerous depositions of the manufacturers’ engineering and design personnel is the next step, along with depositions of those involved in fleet sales who are typically the ones with percipient knowledge of logged/documented complaints from the production field.

A test of an exemplar vehicle may also prove useful as the case proceeds to trial, in which case plan to expend yet another $60,000 t0 $80,000 prior to trial.

As a practical matter, anyone taking on a 15-Passenger Van case should be a member of Attorneys Information Exchange Group (“AIEG” ) and should take advantage of the many depositions and resources acquired in previous cases. The information available from AIEG will greatly expedite the learning process, will reduce the expense of the litigation by avoiding “re-inventing the wheel,” and will enable the practitioner to marshal his or her resources most effectively in the particulars of the case at hand.

Given the magnitude of work and funding required in these cases, careful consideration should be given to taking them on in partnership with other firms to pool resource and reduce risk, or consider referring them out to firms with experience in such cases on a referral fee basis. AIEG, once again, is an excellent resource in this regard.

Once a decision has been made to run with a case, several careful strategic considerations are likewise essential at the outset, not the least of which is selection of the forum. With expert Daubert issues ultimately to be decided, and significant restrictions on discovery under the Federal Rules, it is high advisable to avoid complete diversity of the parties at all cost. Another consideration is which state to file in and choice of law may be of paramount concern, particularly in regard to seatbelt, punitive damages and joint and several liability considerations.

In the Las Vegas accident, the authors’ office filed the action in Los Angeles County Superior Court, despite occurrence of the accident in Nevada. This was made possible by the Los Angeles County venue of the Thrifty rental franchisee in Los Angeles County, and because one of the Plaintiffs’ residence was likewise in California, diversity was avoided. At the same time, because the accident occurred on Nevada’s highways, and California’s Vehicle Code (including its seat belt defense) is inapplicable outside of California by settled statutes and laws, Nevada’s applicable rules of the road specifically barring the admissibility of seat belt usage in civil lawsuits provided a measure of protection against from comparative fault arising from questions surrounding the ejected passengers.

Under California law, the NHTSA warnings are also admissible notwithstanding being post-remedial warnings under the doctrine of Ault v. International Harvester, whereas other states have excluded them at trial as unfairly prejudicial. California’s Proposition 51, providing for several liability only in regard to noneconomic damages, also permits Plaintiffs to settle with multiple tortfeasors with non-settling tortfeasors entitled to no set-off of the Plaintiffs waive economic damages at trial. As explained by these authors in their Article appearing at page 16 of the July/August issue of Forum, (“Multiplying Your Tort Recovery by Eliminating Settlement Set-Offs Under Proposition 51"), this may enable counsel to recover more in settlements than would be possible at trial, and is a strategy ideally suited to 15-Passenger Van product liability litigation.

Careful development and research into OSI’s is a critical part of any punitive damages claims, since notice of prior incidents is essential to proving that the manufacturer exhibited a conscious disregard of safety to advance its pecuniary interest, the threshold malice substitute supporting exemplary damages in products liability actions in California.

As far as defenses, you can anticipate driver error will be the primary one, and careful development of the human factors issues is essential to educate the jury as to why no typical nonprofessional driver confronted with similar circumstances, could be expected to fare or perform any better. California law is again favorable in this regard because of the reduced judgment and prudence required on the part of one suddenly placed in imminent peril. See, e.g., BAJI 4.40

Finally, if possible, focus group the critical issues in the action both early and late. Given the risks and expense of the case, and the tendency to become passionate about the righteousness of the case, mock jurors can offer extremely helpful tips to the attorney often overlooked during the brutal and tedious pretrial development of the case.

Concluding Thoughts

While the ultimate results in these cases may prove satisfactory for the client, success in these cases does not come cheaply, or by accident. These cases may prove some of the most arduous and costly of any a practitioner has ever experienced. But they are indeed righteous cases. As evidenced by DaimlerChrysler’s recent announced cessation of manufacture of these deathtraps following numerous significant settlements, these cases are a laudable example of the important safety function performed by the Plaintiffs’ bar. But if this job is with doing at all, it must be done very well. For the reasons explained above, perhaps just as much prudence should go into the decisionmaking process at the outset of the case as we have argued should be exhibited by a potential driver of a 15-passenger once given all the information and facts to which (s)he is entitled by based principles of fairness and safety.

Roof Crush

Finally, roof crush propensity is a serious defect extant almost all of the automakers’ passenger vehicles, light trucks, vans and SUV’s currently under manufacture. Since the 1960’s the U.S. automakers’ corporate executives have variously admitted in Congressional testimony directed at automobile safety legislation that vehicles can and do roll both in single and multiple vehicle accidents. In July, 1965, GM’s president pointed out in testimony before the Senate Subcommittee on Government Operations that GM had affirmatively taken steps to lower the center of gravity to militate against rollover, which in turn triggers the propensity for easy roof crush to inflict catastrophic injuries on vehicle occupants.

In 1976, during a GM proving ground test drive, one of its test drivers lost control and rolled the test vehicle 1-1/2 times, causing the vehicle’s roof to crush crushing the test driver’s head and killing him. After an investigation of the incident, in 1981 GM issued a Engineering Report instituting a policy requiring roll cages and 5-point harnesses for its test drivers during proving ground maneuvers, ostensibly to prevent a recurrence of this roof crush casualty.

But despite this first-hand knowledge of the potential catastrophic dangers of roof crush, confirmed by numerous crash and crush tests, named “Malibu tests” as Chevrolet Malibu’s were used for testing) in subsequent years GM then moved away from stronger, more durable roofs, instead constructing weaker ones. Over the intervening years, testing has shown that GM’s newer vehicles’ roofs are far more likely to crush in a rollover, killing or seriously injuring occupants, than older GM vehicles.

In 1987 a series of memoranda reveal that GM specifically elected to use increased windshield strength to reduce the strength of the structural roof supports, called “A” and “B” pillars, so as to pass Federal Motor Vehicle Safety Standard 216 roof-crush test standards with lighter and less costly components.

However, testing reveals that windshield’s are almost always lost immediately on the first roll of a vehicle and expose the roof pillars to sudden vehicle loading without the benefit of the additional windshield bonding strength. Accordingly, the GM vehicle’s roof support pillars now become even weaker than in prior generations, further ensuring catastrophic injuries to vehicle occupants in later model GM vehicles.

This evidence appears sufficient to meet the punitive damages requirement of a “conscious disregard” of the rights and safety of vehicle owner and occupants which is “despicable,” since such conduct can (and indeed has even at GM’s own proving grounds) “kill people.” See, Romo v. Ford Motor Company (2002) 99 Cal.App.4th 1115, 1141, expressly affirmed on all gnds except federal Const’l issues at 113 Cal.App.4th 738 (2003).