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Tires Archives - The Cooper Firm - The Cooper Firm


How Do I Know If My Car Has A Recall?


How Do I Know If My Car Has A Recall?

There’s a handful of ways to know if your car has a recall. The first, and really the most important, way that you need to know, is you can look at a government website called safercar.gov and they will tell you clearly if there is a recall that applies to your vehicle. They’ll also tell you if it’s a safety related recall.

Most people buy used cars and most people don’t know that when you buy a used car, they can sell you the car without disclosing to you that a recall service hasn’t been performed.

Sometimes you’ll get recall notices in the mail, but don’t count on this. Don’t count on being able to receive all this information effectively through the mail because a manufacturer may or may not know about you. That’s especially true if you’ve bought a used car.

Last, and the most important thing people need to realize about recalls, is just because you don’t have a recall on your vehicle, doesn’t mean that it’s safe. If you are injured by something in your vehicle and you don’t see a recall posted online, that doesn’t mean what happened was right.

When you come to a firm like us and we take your case, the recalls that happen, happen as a result of the work of this firm. Make sure you know what is going on with your vehicle and make sure you know whether a recall has been performed or whether you need to go take care of one.

How Do I Know If a Defective Tire Caused My Crash?


How Do I Know If a Defective Tire Caused My Crash?

Over the past 26 years Lance Cooper has developed a particular expertise in tire defect cases. He handled his first tire defect case back in 1992 and has been passionate about this safety issue ever since. Defective tire cases are different because there is a lot that goes into the design and manufacture of a tire.

When a crash happens and there has been a tire blow out or tire tread separation, it is important that The Cooper Firm be involved early in the investigation. We need to enlist the expertise of engineers to not only inspect the damaged tire, but also inspect the car, the surrounding road scene, and everything that happened in that particular crash. From there, we can determine if a tire defect contributed to that crash. Oftentimes tire failure claims result in very bad crashes where people are catastrophically injured or perhaps have died. It’s important early on to involve The Cooper Firm for investigating potential tire defect claims.

If you or someone you know has been injured in a crash and you believe a defective tire may have been the cause, please contact us as soon as possible.

How dangerous are Aging Tires?

Tires - The Cooper Firm

The Danger of Aging Tires

Even though the tire industry still spends thousands of dollars to defeat legislation that would require tires be inspected on the basis of age, there is plenty of evidence that proves the danger of tire aging.

During the investigation that lead to the death of actor Paul Walker, the California Highway Patrol found that the Porsche Carrera GT he was driving had nine-year-old tires. The tire’s age could have led to separation and cracking which caused the accident. Stories like this show that just because a tires tread depth is still good does not mean that the tire is in good condition. The rubber compounds can deteriorate over time even if the tire has never been used.

Sean Kane, president of Safety Research & Strategies, Inc., compares an aging tire to an old rubber band. “Over time they become less elastic. If you take a rubber band that’s been sitting around a long time and stretch it, you will start to see cracks in the rubber,” Kane stated. Cracking can start inside the tire even though it appears to be fine on the surface. The cracking can even lead to the steel belts in the tread separating from the rest of the tire.

How long will a tire last?

Although there are many differing opinions on how long a tire will last, the majority of car makers say six years. The National Highway and Traffic Safety Administration does not give any guidelines on tire aging, but suggest looking to the car makers and manufacturers. Although we suggest replacing tires that are six years or older, there are many other factors that can affect the tire much sooner. Heat and storage can deteriorate a tire much more quickly. Spare tires that sit on cars that are not driven frequently can  basically be baked in warmer climate areas.

You can read a tires age by looking at the DOT (Department of Transportation) number on the side of the tire. It is a four digit code in which the first two numbers represent the week the tire was made and the second two numbers represent the year. Tires made before 2000 were made with a three digit code and should not be driven on.

When you are getting your tires replaced, make sure that you are getting new and fresh tires. Just because the tire hasn’t been used does not mean that it just got to the tire shop. Insist on the newest tires. Dispose of any tire that is older than six years so that it is not used by anyone else.

For more information you can visit Safety Research & Strategies Inc. here.

Tire Wise: Tire Safety

Tires - The Cooper Firm

Tire Wise: Tire Safety

Tire maintenance is crucial to safety in vehicles considering that everything rides on it. Ensuring tires are safe can prevent tire failure. Tire blowouts and failure can result in severe car crashes.

Here are a few tips in order to extend the life of your tires and to keep you safe on the road.

-Tire Aging. Factors such a heat, use, storage and climate conditions can deteriorate tires at accelerated rates. Although you cannot tell just by looking if your tires are old, there is a date on the side that tells when the tire was manufactured.  A good rule of thumb is you should replace your tires every six years, but other factors can play into the age so always be aware of wear and tear.

-Tire Maintenance. You should check tire pressure and tread monthly. This will not only help with ensuring safety, but will also help with fuel consumption. Have your tires rotated, balanced, and aligned whenever you take your vehicle in for an oil change. An easy way to check tire tread is to put a penny in the tread with Lincoln’s head upside down. If you can see the top of Lincoln’s head, it is time to change your tire.

-Replacing Tires. By regularly maintaining your tires and keeping track of their age, you will have a good idea of when it is time to replace them. When that time comes, it is important to make sure that the new tires are right for you vehicle and the environment in which you drive. Always have the tire company bring out the tires before they put them on so you can check the manufacturing date. Tire companies will call tires ‘new’ if they haven’t been used, but they could have been sitting and baking in a warehouse for months or years. This can be very dangerous. For example, consider a rubber band. If exposed to warm temperatures, the rubber band will start to crack. This same thing can happen to tires, including spares.

-Registration and Recalls. Registering your tires is crucial for tire safety. Manufacturers rely on this information to alert you when there is a recall on your tires. You can also sign up with the National Highway Traffic Safety Administration to get notices when there are recalls for tires.

It is so important to take proper care of your tires. If you or someone you know has been injured as a result of a defective tire or product, contact our offices today for a free consultation.

Source: NHTSA

Goodyear Runs Flat: Company Sanctioned For Hiding Tire Testing

Tires - The Cooper Firm

Goodyear Runs Flat: Company Sanctioned For Hiding Tire Testing

Discovery in litigation is the process through which people injured by a defective product can get information and documents from the product manufacturer. You can ask the company questions and request documents and things from the company files. This discovery process is the life’s blood of the case. With it, done rightly, you get the facts and the data and the tests.  Without it, and done wrongly, you get nothing and you lose your case.

The discovery process, governed by published rules and ethical principles, relies fully on the parties to respond fully and honestly and to act in good faith. There is supposed to be a “little voice” in each attorney’s head telling him to “turn over all material information.” Sadly, and by design, not all companies and their attorneys listen to that inner voice. They “sell out to client” and hide documents. They delay. They conceal. They use word games to avoid producing highly relevant documents.   It’s a common gamble, because if they are not caught, and many are not, then they are almost certain to win the case and protect the company and the product.

But, sometimes, diligent plaintiffs and good judges catch the company and its attorneys playing games, albeit deadly serious games, in the litigation process. We have seen it many times over the years in our cases. It happened most recently in Haeger v. Goodyear Tire & Rubber Co., a case in which a tire failure caused serious injuries to the Haegers. After seven years of battling Goodyear for documents tests that common sense said existed, and after being told none did, the Haegers settled their case for a fraction of what they might have had they gotten all the tests. Later, the Haegers learned from other tire litigation that the tire tests they asked for, but never got, did in fact exist—but the company and its attorneys had concealed them.

Even though their case was over, the Haegers acted. They and their lawyer filed a motion for sanctions, alleging that Goodyear and its attorneys had knowingly concealed internal tests related specifically to the Goodyear tire that failed and hurt the Haegers. Those concealed tests showed flaws in the tire design. Goodyear defended, arguing that it had never violated any court orders to produce the tests it had said did not exist, and that the trial court did not have the power to sanction it post-settlement for previous discovery abuse.

During the ensuing fight over whether Goodyear had committed fraud on the court and engaged in discovery abuse, Goodyear accidentally produced tests it had repeatedly said did not exist. Because of that and what it learned in a 6-hour evidentiary hearing, the trial judge was not impressed. The judge further found out that Goodyear’s corporate representative had failed to mention the tests when asked repeatedly about them. The trial judge held that Goodyear had committed fraud on the court by not producing the tests.  It found that Goodyear and its attorneys had acted in bad faith and had engaged “in repeated and deliberate attempts to frustrate the resolution of the case on the merits.” Relying on its “inherent power,” the court then sanctioned Goodyear, fining it and its lawyers over $2.7 million dollars in attorney’s fees and costs.

Goodyear and its lawyers appealed to the United States Court of Appeals for the Ninth Circuit. In a 49-page Opinion, the Ninth Circuit upheld all the sanctions. You can read the entire Opinion at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/20/12-17718.pdf.

Lawyers and litigants have a duty to use good faith and candor in responding to discovery. They have a duty to listen to that inner voice and turn over all the responsive documents. That’s the only way facts come out. That’s the only way the truth comes out. And that’s the only way justice is done in court.

Tire Industry Association and Safety Advocate Groups Team Up to Support Tire Recall and Recovery Reform


Tire Industry Association and Safety Advocate Groups Team Up to Support Tire Recall and Recovery Reform

Safety advocates and the Tire Industry Association agree that technology which would allow electronic scanning of tires is the only way to reform tire recall procedures to guarantee full recovery of defective tires.

The Tire Industry Association (TIA), The Safety Institute and Families for Safer Recalls requested that Congress and the National Highway Traffic Safety Administration support recall and recovery reform that requires uniform electronic scan-ability of tires. The current system has failed for a long time, with an estimated less than 20 percent of recalled tires actually being recovered, according to The National Transportation Safety Board (NTSB). Currently, Tire Identification Numbers (TIN), which are codes used to identify recalled tires, are manually transmitted to manufacturers by consumers or tire service professionals. During a recall, neither party has tools that can quickly and accurately decipher whether tires are a part of a recall.

Even though the NTSB is currently in the process of making recommendations for improvements based on crashes from failure of recalled defective tires, legislators are moving forward with a bill supported by the Rubber Manufacturers Association that would only make slight adjustments to the currently dated system. July 15, the Senate Committee on Commerce, Science and Transportation passed a combined transportation funding and safety bill that includes re-establishing mandatory tire registration by dealers. The bill also includes provision for the National Highway Traffic Safety Administration (NHTSA) to include a TIN-based recall look-up on its website. The changes place the burden on the tire dealers, leaving the tire manufacturers with little to no responsibility.

The current registration process for tires is very labor-intensive, and requires the hand translation of the TIN from the side of a tire to a mail-in registration card or electronically by computer. While adding a TIN-based recall look-up is a positive step forward, dealers are not equipped to take on the full load of translating each TIN, nor will it help solve the problem of defective tires not being recovered.

Safety advocate groups and the TIA are suggesting that RFID chips in tires or laser-etched QR codes would be a cost effective and up-to-date way to keep track of recalled tires as well as notify owners. Even if ownership changes or tires were purchased used, tire identification could still notify parties of whether the tire was recalled or not.  Tire Dealers are not opposed to tire registration, but the new legislation places the entire burden on them with no realistic methods for doing the job right. Not only could small tire dealers go out of business, but the larger dealers would be hurt by having to send their customer list to manufacturers.

Tips for Safe Road Trips

Cobb Personal Injury Attorney - The Cooper Firm

Tips for Safe Road Trips

The warm weather has probably got you itching for a road trip. Before you load up the car, make sure that you review our summer travel safety tips. There are a few things that need to be done up front, that will prevent you from breakdowns or worse an accident.

Regular maintenance is crucial for preventing breakdowns. If you are unsure of what condition your vehicle in, always schedule a preventive maintenance checkup before driving long distances.

Check for open recalls. In addition to scheduling a maintenance checkup, be sure to check online or with your mechanic to see if you have any open recalls on your vehicle. You can also search your vehicle’s VIN number online at https://vinrcl.safercar.gov/vin/.

Check your tires’ air pressure and tread. Don’t forget your spare. Make sure that your tires have proper inflation pressure at least once a month. Always check your spare tire as well. You should always check and adjust inflation based on your vehicle, not based on the number on the tire. Underinflation is the leading cause of tire failure. Driving long distances with low tread can be dangerous. Check to see if the tread on your vehicle is low. Check out some of our tips on doing so here.

Look at belts and hoses. Inspect all belts and hoses for bulges, blisters, cracks or cuts in the rubber. Warm weather can speed up the deterioration of belts and hoses. Be sure to repair if necessary.

Check wiper blades for wear and tear. Just like belts and hoses, wiper blades can deteriorate quickly in the summer heat and after working hard all winter. Invest in new blades if you see wear and tear.

Keep your cooling system cool. Make sure that the radiator reservoir is full. If the coolant is clear, rusty or has particles in it, it should be flushed and refilled. If the coolant is sludgy or oily, you should have it taken to a mechanic immediately.

Don’t leave the other fluids out. Fluids can get low without warning. Check the oil, brake, transmission, power steering and windshield washer fluids for full reservoirs with no leaking.

Make sure the all the lights work properly. Double check that all headlights, brake lights, turn signals, emergency flashers, interior lights and trailer lights work properly. It is important to be able to see clearly and that other drivers can see you. Trailer light failure is a common cause of serious accidents. Do not leave your trailer light outs.

Keep it cool and check the AC. Not having air conditioning can seriously affect children, older adults and those with sensitivity to heat. Check the AC a few times before you leave for your trip to make sure it works with no problems.

Having your vehicles in proper functioning conditions can mean the difference between a fun road trip, and a road trip full of breakdowns or worse an accident. We hope you have safe travels this summer!

Please note: If you or someone you know has been injured due to a car accident, contact our law offices today for a free consultation.

Source: NHTSA

Featured Case: Defective Tire/Severe Injuries

FEATURED CASE - The Cooper Firm

Featured Case: Defective Tire/Severe Injuries

Our client was riding as a passenger in a vehicle that was involved in a single car accident in August 2011.  As the vehicle was driving on a major highway, one of its tires failed and separated, and the driver lost control. The vehicle then went off the road, struck a concrete median barrier, overturned in the emergency lane, and slid down the road on its top. As a result of the accident, our client sustained permanent and severe injuries.

Our client sued the tire manufacturer for designing and manufacturing a defective tire. The negligence of the tire manufacturer was a direct cause of our clients severe and life changing injuries and damages. We were able to settle the case on behalf of our client for a confidential amount.

NHTSA Investigates Hercules Tire after Lawyer’s Probe

Tires - The Cooper Firm

NHTSA Investigates Hercules Tire after Lawyer’s Probe

The National Highway Traffic Safety Administration has opened an Equipment Query Investigation into Hercules Tire and Rubber Company, a subsidiary of American Tire Distributer, after probing from Micheal Cowen, a Texas attorney. Cowen represented Krystal Cantu, whose right arm was crushed in a rollover accident caused by tread separation on a left rear tire. The tire was a Capital Precision Trac II. Cowen found that the tread separated due to the tires not having a nylon cap ply, which makes tires prone to tread separations.

In October of last year, ITG Voma an importer recalled 94,890 Capital Precision Trac II tires. This included seven different sizes for passenger cars and light trucks. The problem is, Hercules Radial A/T tires were manufactured by the same company, Shandong Yongsheng Rubber Co., Ltd., but were not recalled. Both tires were distributed by American Tire Distributers, but carry different brand names. During Cantu’s lawsuit against American Tire Distributers, ITG Voma and Shandong Yongsheng Rubber Co., a manufacturer’s representative testified that the Capitol Precision Trac II shared a green designation with Hercules Radial A/T.

Hercules recalled its seven 10-ply Load Range E Tires manufactured by the Shandong Yongsheng Rubber co. in February 2013. The defect in the recalled tired could experience in-service belt and tread separation. In NTSA’s investigation, it has asked why Hercules did not include the Radial A/T tires.

In December 2014, Cowen requested that NHTSA investigate the issues. Surprisingly, in the probe, NHTSA included that the allegation came from Cowen. This could be due to the fact that NHTSA has been under much scrutiny the past year for failure to act on major safety issues. It will be interesting to see what NHTSA discovers in its investigation.

If you or someone you know has been injured as a result of a defective product, contact our law offices today for a free consultation.

Source: The Safety Report Blog

The Safety Record Blog’s Top Ten in 2014 – Safety Research and Strategies, Inc.


The Safety Record Blog’s Top Ten in 2014 – Safety Research and Strategies, Inc.

1. GM Ignition Switches, the Big Opener for 2014

Who knew on Jan. 1 that just a few weeks later, we’d be watching one of the biggest safety defect scandals unfold when the world learned that GM had been sitting hiding an ignition-switch defect it had known about since before the vehicles went on the market. (Of course, Takata followed soon after – more on that later.) Obviously, GM is ultimately to blame for the hundreds of deaths and injuries that followed. But The Safety Record thinks NHTSA is the real star of the show. If 2014 was the Year of the Recall, it was also the Year NHTSA’s Epic Failures Were Exposed. And what better way to mark the momentous occasion – or, actually, repeated occasion because we’ve been here before – than to highlight its new level of ridiculousness after the GM tragedies came to light? Rather than own up to seven years of ignoring the ignition switch defect, NHTSA’s spin machine went into overdrive in its rush to blame GM for not reporting and providing information. Acting Administrator Friedman even went before Congress to plead agency ignorance. Nevermind that by 2007, the Office of Defects Investigation had two Special Crash Investigations in fatal incidents that tied the airbag non-deployment to a 2005 GM Technical Service Bulletin telling dealers that ignition switches could unexpected shift, shutting down the engine. Or that in 2007, NHTSA’s Defects Assessment Division recommended that the agency conduct an immediate investigation into “a pattern of non-deployments,” citing 15 consumer complaints and 28 field reports where the airbag didn’t deploy in frontal crashes, resulting in 27 injuries and four fatalities – the investigation never happened. Or that it ignored at least one other Special Crash Investigation that noted a 2009 Cobalt was in the “accessory” mode when a fatal collision occurred, in part because NHTSA staff didn’t understand how newer airbags worked. Or that some NHTSA staff were concerned enough to monitor Cobalt crashes and recommend investigations until 2011 – when the agency suddenly forgot all about GM, allowing more injuries and deaths to pile up.

2. We Don’t Need No Stinkin’ EWR

The Safety Record was less than shocked that Honda failed to report half its death and injury claims. In February 2013, we noted two manufacturers – Tireco and Harmony, a child-seat manufacturer – had not filed EWRs in three serious injuries in litigation. SRS asked NHTSA for its EWR policies and the agency’s follow-up with those manufacturers. We eventually had to sue NHTSA to find out that they pursued Harmony to file a quarterly report, but had no record of doing anything with Tireco. Tireco has never filed an EWR claim; Harmony filed that one quarter and never again. The only policy document we received was a draft with page 6 missing. (see EWR – Elective Warning Reports) This year, U.S. Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) sought more information from NHTSA about its use of EWR data. Acting Director David Friedman gave them some jive about how thoroughly the data is assessed and how the agency keeps track of manufacturers’ reports, sophisticated mining techniques, stern letters, civil fines, “as appropriate,” blah, blah. But the good Senators noted that Ferrari had never submitted a report since 2003. We noticed that Mercedes has rarely filed a property damage EWR – 17 in a decade –  and what reports they were filing indicated that their seats were burning people’s tushies. Ferrari eventually got fined $3.5 million for embarrassing NHTSA. The Safety Record Blog doesn’t pack the same punch as Congress, so Mercedes escaped the hot seat, as it were.  We think that NHTSA’s Chief Counsel responded more honestly, when he told a bunch of defense lawyers at a legal conference: “Frankly [EWR]’s not early and it’s sometimes really not a great warning, because you have to dig down into the data.” (Analyses conducted by Quality Control Systems Corp. have shown that EWR is functioning more as a finder of failed recalls. Yet, in its last rulemaking, NHTSA chose to add some more very broad categories related to emerging technologies, instead of adding component sub-categories that would make it much easier for the agency to spot defects causing some of the most common safety malfunctions.) Sens. Markey and Blumenthal have submitted an EWR improvement bill, but will it have any life in an all-Republican congress? So, NHTSA, manufacturers, as you were!

3. NTHSA’s Data Drivel

As we all know, NHTSA is data-driven. And the agency would have you believe that every action it takes is forged in the hot steel of numbers. In fact, “data-driven” is just one of the agency’s autonomic responses to reporters and Congress in the face of safety crises and budget requests. Most NHTSA-watchers know that the agency has but a slight acquaintance with statistical analysis, but have found that the phrase forms the basis of an excellent drinking game. This year closed with a few good examples. In mid-December, our friends at Quality Control System Corp. laid waste to NHTSA’s oft-repeated factoid that light vehicle tires are performing better than ever, sporting a 50 percent reduction in fatalities using crash data from 2007-2010. Randy Whitfield presented his examination of Fatality Analysis Reporting System data at the NTSB’s tire safety symposium, finding that the number of tire-related crashes and resulting deaths has remained relatively constant since 1995, and that the study on which NHTSA relied to excuse itself from tire safety rulemaking only included a small sample of crashes involving light passenger vehicles towed for tire-related damage, rather than evaluating all tire-related crashes. (While NHTSA reluctantly conceded the point, it was too late to change its Powerpoint presentation, so the agency repeated its cherry-picked conclusion later in the day.) And The Safety Record Blog got a good chuckle out of a November quote from David Friedman, the agency’s star-crossed Acting Director, in response to Takata’s reluctance to mount a national recall for its exploding airbags: “One can be an anomaly. Two becomes a trend, and we feel we need to act.” For all of you who have been dying to know the Office of Defects Investigation’s super-secret issue-screening benchmarks, cat’s outta the bag now.

4. Good Layers/Bad Lawyers

It is a fact: corporate lawyers are noble defenders of American business. They are decent fellows and good gals, whose word’s an unbreakable bond. The kind of people you can feel at home passing your resume while sharing a cocktail or an automotive defect assessment. By contrast, trial lawyers fatten themselves on the souls of innocents. They are responsible for all of society’s ills, from childhood obesity to the Ebola virus. They cannot be trusted. Nor do upstanding government bureaucrats associate with these misshapen lumps of humanity’s dregs. At least, that’s what The Safety Record has taken away from the agency’s behavior toward lawyers in 2014. It was trial lawyers who showed how Toyota’s unbelievably crappy software could cause an Unintended Acceleration without the engine control module taking note. Has NHTSA done anything with this startling information, given the continued evidence of Toyota UA? Not that we can tell. It was a trial lawyer who revealed the General Motors knew about the now infamous ignition defect for years, before it released the afflicted vehicles into the marketplace and before the automaker announced a limited recall. Marietta, Ga. lawyer Lance Cooper, who represented Brooke Melton, a fatal victim of the defect, alerted NHTSA in February to GM’s shenanigans, and offered to share the fruits of his discovery. NHTSA responded by completely ignoring him. Couldn’t even muster a thanks-for-your-letter-we’ll-look-into-it response. Straight-up rude. Corporate lawyers? They got a presentation at a legal conference for the defense bar in Chicago by NHTSA Chief Counsel O. Kevin Vincent. It started with a feel-good “rah-rah-ree” paean to industry, before Vincent gave his audience the requisite 10 seconds to pick their jaws off the ground after he warned them that NHTSA would no longer tolerate automakers’ dissembling on defects and delaying recalls.  Nothing but the Marquess of Queensbury rules for those guys.

5. Toyota UA Now, Toyota UA Tomorrow, Toyota UA Forever

With the spotlight now chasing Takata and GM, one might be forgiven for laboring under the false impression that the Toyota Unintended Acceleration problem had been resolved with floor mats, shaved pedals and the aggressive mis-direction from the automaker’s PR flacks. After all, in March Toyota paid the federal government $1.3 billion to resolve criminal fraud charges, promising to lie no more, under the watchful eye of an Independent Monitor. And Toyota, its corporate voice trembling with remorse and sincerity, declared this unfortunate chapter closed. Toyota owners, however, can’t make the same claim. Toyota UA complaints continue to accrue. Safety Research & Strategies continues to field calls from Toyota drivers experiencing UAs. Take the experience of Robert and Kathy Ruginis of Bristol, RI. In June, Kathy Ruginis was attempting to park her 2010 Toyota Corolla on a town street when the vehicle surged forward and crashed into an unoccupied parked Jeep in front of it. Kathy’s foot was on the brake at the time. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually at higher speeds – since the couple bought the vehicle new in May 2010. The inspection included a 16-mile test drive, a visual inspection and a download of the Event Data Recorder, which confirmed the account of Kathy Ruginis and her passenger: the Corolla was surging while her foot was on the brake. It showed in the five seconds of vehicle data before the system made the decision on whether to deploy the airbag: accelerator pedal untouched, brake pedal on, speed and RPMs doubled.  In denying the Ruginis claim, Toyota only considered the results of the “test” drive and the physical inspection: “Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.” The Ruginises took their complaint to NHTSA and the Independent Monitor David Kelley, requesting that Kelley look into Toyota’s dishonest assessment and the latter into low speed surges in MY 2006-2011 Toyota Corollas, based on 163 reports in which the driver experienced a surge at low speed or no speed – 99 drivers mentioned that the brakes were already depressed when the surge occurred or the surge occurred when the brakes were depressed, and 83 incidents resulted in crashes.  NHTSA’s Office of Defects Investigation is now evaluating the Ruginises’ claims and has taken the car for testing under no protocol that it could show the couple. Two lawyers from Cahill Gordon & Reindel LLP interviewed the Ruginises about their experience with Toyota. Hard to say what will come of these encounters, but if The Safety Record were a betting blog, we’d say: nothing.

6. FHWA Mounts Production of Safety Accountability Theater

When the government is trapped between the truth and its actions, CYA wins every time. The thing is: you have to look tough, and it has to be as convincing as Ralphie’s tears after he almost shoots his eye out with a Red Ryder carbine action, 200 shot range model air rifle.  This is trickier than it sounds. You have to go after the manufacturer, but not the defect. This way, you show an appropriate level of outrage without looking like a doofus for not catching and correcting the defect in the first place. The only ones who lose are consumers and we know how much everyone cares about them. For two years, the Federal Highway Administration brushed off questions about the safety and efficacy of Trinity Industries’ ET-Plus Guardrails. Then, a Texas jury found that Trinity defrauded the federal government by failing to disclose key design changes in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the FHWA and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million. Among the evidence at trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests. After the verdict, states started dropping the ET-Plus from their lists of qualified vendors, and the FHWA had to react. But, having defended Trinity and the ET-Plus to state highway officials and the press, not to mention allowing Trinity to submit test results seven years too late that purported to show that the end terminal performed adequately, the reaction couldn’t be too extreme. So it ordered a round of tests that the hardware was likely to pass, but did not mimic the way the end terminal was failing in the field. The FHWA specifically forbade the Texas Transportation Institute, Trinity’s long-time testing and development partner from conducting these new tests. Instead, the agency allowed Trinity to choose the Southwest Research Institute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. That’s how it’s done.

7. CPSC Begins Rulemaking on 6B

The U.S. Consumer Product Safety Commission kicked off 2014 with a bold move to publish a Notice of Proposed Rulemaking to reform the irksome Section 6(b) of the Consumer Product Safety Act. This rule gives manufacturers a lot of control over what negative information the CPSC can release about them, such as trade secrets or “misleading” and “inaccurate” information.  The CPSC can disclose the existence of an investigation under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products, and typically the two entities release agreed-upon language. In execution, 6(b) can be cumbersome, time-consuming and costly. The re-notification procedure forces the commission to seek the manufacturer’s approval every time it releases the same information about a product to a different source. The NPRM makes four modifications to the regulatory language, among them: clarifying that Section 6(b) does not apply to information already publicly available or disseminated, and revising the current policy of granting firms an absolute right to have their comments withheld from any information the CPSC releases. One of the biggest changes would affirm that once a firm voluntarily agrees to undertake a corrective action plan, it would be legally bound to fulfill the terms of the agreement. Under the current regulations, the Commission is prohibited from enforcing a corrective action plan if a recalcitrant firm violates the terms of its corrective action plan. The rulemaking also proposes to re-balance the negotiations on the language of a voluntary consent agreement. Currently, the company can make an admission that it violated the Consumer Product Safety Act if it feels like it. The proposal eliminates the phrase ‘‘if desired by the subject firm,’’ and replaces it with the phrase ‘‘if agreed to by all parties.’’ The commission was down to three members when it voted 2-1 to publish the notice. It now has a new chairman and a full complement of four members. The rulemaking has not advanced since the Federal Register Notice of February 26.

8. NHTSA Tired of Tires

In March 2002, the agency began a rulemaking to establish new tire performance requirements under a new FMVSS 139 that was to have established requirements and test procedures addressing tire dimensions, endurance, the impact of road hazards, bead unseating, low inflation pressure, and aging. Ten months later, the agency published a final rule on the tire performance requirements, but postponed action on an aging test. In 2005, the agency opened a non-rulemaking tire aging docket, into which it deposited its continuing research into tire age. This May, NHTSA quietly signaled – again – that it was not going to require a tire aging test by posting a March 2014 summary of its tire aging work. The report cited three reasons for its decision, all stemming from the 2003 FMVSS 139 Final Rule, which improved the robustness of tires. The agency cited its erroneous data analysis showing a dramatic drop in tire-related crash fatalities. (See above – NHTSA’s Data Drivel) At the same time, the agency clearly acknowledged that tire age is an undisputed factor in tire safety and that their research data has shown for years that tire aging was a continuing concern particularly in the high heat states. But the agency instead would launch “a promotional and educational initiative to raise consumer awareness about tire aging issues and how to prevent these types of failures.” NHTSA would do nothing to make it easier for consumers to determine the age of their tires, like require a non-coded date of manufacture molded on each sidewall. But that’s the kind of crazy you get when your aim is to look busy without troubling industry. Fortunately, the National Transportation Safety Board is on it. Earlier this month it held a two-day symposium to look at the continuing problems with the tire recall system and tire age, in preparation for making safety recommendations. The Rubber Manufacturers Association was just putting away the champagne glasses from its May celebrations, when it sprang into action. To deflect unwanted attention from the NTSB, it announced that it supported a mandatory registration system that requires retailers to electronically register tires at the point of sale. The Tire Industry Association, which represents the dealers, was not happy. But perhaps the civil war will be postponed. Whatever recommendations the NTSB is likely to make, NHTSA is likely to ignore until Congress forces a rulemaking after a bunch more people die unnecessarily.

9. Vehicle Electronics

In October, NHTSA published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments satisfies a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles.” NHTSA’s only a quarter of a century behind the technology curve, but better late than never. NHTSA said that it intended to determine “whether there are emerging gaps in the functional safety assurance processes of motor vehicles.”  One need only examine the record to demonstrate that there’s nothing but gaps. In 2011, for example, The Safety Record examined 12 months of recalls to determine the prevalence of recalls related to electronic defects. After reviewing 722 recall campaigns, The Safety Record found that electronics recalls comprised more than a quarter; of those, 24 recall campaigns addressed software defects. But NHTSA does not like to stray too far from broken parts – its bailiwick for decades. Two years ago, NHTSA attempted to upgrade the accelerator control standard by proposing that manufacturers be required to equip all vehicles with a brake override, which cuts throttle voltage in electronic throttle control (ETC) vehicles when the brakes and throttle are in conflict. The Notice of Proposed Rulemaking was in direct reaction to the Toyota UA crisis, but the proposal merely codified manufacturers’ current equipment, and noted that it was meant to address unintended accelerations caused by mechanical failures: component disconnections. The proposal to write a functional safety standard for automotive electronics posed a series of questions to the public, among them, queries about the cyber security of automotive electronics, electromagnetic interference with such systems and the possibility of requiring performance tests to ensure the safety of critical systems such as braking, steering and accelerating. The call for comments drew 44 submissions. The Alliance of Automobile Manufacturers agreed with NHTSA that it was unsure about those gaps, and suggested that NHTSA and its “Council on Vehicle Electronics, Vehicle Software and Emerging Technologies” keep studying the question: “These forums may identify potential gaps” – a lot of conditionals in that phrase. As for the need for mandatory standards – no need at all, the AAM said. The current voluntary guide ISO 26262 is enough, thank you very much.  Safety-critical electronic systems “are continually evolving at a rate that outpaces rulemaking.” Even The Safety Record agrees with that – especially since the agency usually takes 25 to 40 years to write new rules. We were certain that Toyota, with its rock-solid automotive electronics, would offer some valuable insights to the agency about functional safety, but the automaker did not submit any comments. Pity.

10. Will NHTSA Ever Get a Decent Administrator?

We had such high hopes when President Obama appointed David Strickland to be the agency’s administrator in 2009. A former Democratic Commerce Committee staffer, Strickland got the kid-glove treatment during his confirmation hearings and sailed through the approval process. Strickland had worked for the Senate Commerce, Science and Transportation Committee since 2001, and before that, served the Association of Trial Lawyers of America as the associate director and a lobbyist. Safety and consumer advocates praised his nomination, describing Strickland and a savvy negotiator devoted to consumer protection.  He left to cash-in as a lobbyist for Venable LLP, a “top defense” firm in D.C. that boasts about its ability to help clients clear regulatory hurdles and defend its clients in product liability cases involving asbestos, tobacco, automobiles and industrial chemicals. Who wouldn’t want to defend asbestos and tobacco? The big defect crises under his watch were Toyota UA and Jeep’s rear-of-axle fuel tanks that explode on impact, burning occupants to death in otherwise survivable crashes. Safety advocates gave him an “F” in both; he failed consumers miserably when it counted. Deputy Administrator David J. Friedman – just seven months into his new job – stepped into the breach, and our hopes rose again. Friedman worked for 12 years at the Union of Concerned Scientists (UCS) as a senior engineer and research director. His specialty was fuel economy, but we thought, hey, a scientist – that’s good, right? Friedman was immediately swamped by the next tsunami of defect crises – Takata airbags and GM ignition switches that migrate from the run to accessory position cutting off the engine, power brakes and steering, and the airbags. The agency’s newly appointed administrator is Mark Rosekind, a member of the National Transportation Safety Board and a psychologist with a background in human fatigue. During his confirmation hearings, he declared “my first focus will be on the recall defect and reporting process.”  NHTSA and its “regulatory partners” are never so happy as when they put the onus of drivers instead of defects. We hope Rosekind will shepherd in a new era.

11. And, in a nod to Spinal Tap, We’re Up to Eleven… Takata – A Defect Enforcement Mash-up  

If there is a safety defect story of the year, The Safety Record Blog would have to go with Takata’s exploding airbags that spray shrapnel into occupants which we’ve been writing about since 2013. We like it because it rolls all of NHTSA’s enforcement and surveillance problems into one big ball o’ mud. Since 2008, this single defect has produced 21 recalls, affecting 10 Manufacturers, 53 models and more than 15 million vehicles in the U.S. It has also caused five known deaths and 139 injuries. The cover-ups have provided the media and Congress ample opportunity for contest entries and grandstanding. Behind the numbers, this defect illustrates all the deficiencies of the current system: rolling and regional recalls – manufacturers’ time-worn strategies for limiting their liabilities; five different root cause reasons for the defect – incentive to investigate if we’ve ever seen one – and a Recall Management Division that fumbles enforcement, demanding answers in 2009 after the second recall, but losing interest during the next three. Honda was caught failing to submit an Early Warning Report for one of the Takata airbag deaths, and was forced to admit that it had neglected to file some 1,700 EWR death and injury claims. Bonus points go to BMW, which used the crisis to recall Takata-made passenger-side airbags in 3-Series vehicles when it really was concerned about a design flaw – aggressivity. BMW was asked to recall the vehicles in 2008 by an attorney following a lawsuit in which an aggressively deploying airbag caused eye and facial injuries to an occupant. At a December 3 congressional hearing, BMW admitted that the passenger bags were being replaced for a concern not related to the other inflator recalls.

Why should manufacturers ever change their ways and hurt their bottom line when the agency tasked to police them is out at the donut shop? The Safety Record would like to believe 2014 is the last Year of the Recall, but “fool me once” happened decades ago.

Source: The Safety Record



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