The Product Liability Crisis: The Truth - Corporate Irresponsibility There is a product liability crisis. But, it does not relate to the "evil myth" espoused by corporate America and stalwarts of the business community such as the Bush Administration. The real crisis lies in the hundreds of thousands of Americans who are maimed, injured and killed each year by the sale and use of defective, unsafe and carelessly designed products. The real crisis lies in the state of the Federal Judiciary which has almost single-handedly eliminated Americans' rights, privileges and the availability of legal redress. The real crisis facing Americans today is that without a strong civil system of justice to support the privilege of bring suit when we are injured by product neglect, we are left to rely upon a burgeoning government bureaucracy to pay for the care of injured Americans who cannot (and should not) care for themselves. Shifting the burden of medical care from the tortfeasor and onto the national medical care system is just one more nail in the coffin, which may ultimately doom this overly taxed system. Let's start by reviewing some of the major litigation topics of the 90's. If you study the types of products that are repeatedly part of the litigation process, it may help to focus what we, as trial lawyers, need to do to keep jurors interested and to prevail upon them to find in favor of our clients. Here is a list of the major products in litigation today: The product liability crisis does not relate to the number of lawsuits filed each year, nor to the few large verdicts awarded annually, but rather it concerns itself with the reality that corporations marketing their products in this country are driven to profit at the expense of safety. The crisis pertains to marketing unsafe products over the past twenty-five years, which annually costs -- in increasing dollars -- Americans billions of dollars in medical care, lost wages, lost productivity, and untold suffering to so many unsuspecting, innocent consumers. Studies have consistently shown that the number of tort suits in both our federal and state court systems have consistently and dramatically declined -- as our population has increased -- over the past five years. These facts are borne out by reports of the 1990 Statistical Abstract of the U.S., and the recently issued study of the National Center for State Courts. The latter study revealed that with the exception of the District of Columbia (where attorneys of the federal government bring many more suits than the total number of product cases instituted each year) the simple fact is that the number of product liability cases has declined over the past several years. Much of the controversy is erroneously focused on the filing of lawsuits, and the rare verdict for substantial sums. By directing attention away from the origin of harm, those who support the manufacturers of dangerous products do a tremendous disservice to the general public. For decades, designers and manufacturers of divers products such as asbestos, pharmaceutical drugs, motor vehicles, and cigarettes have ignored the dangers of their wares, or worse yet, ignored the availability of safety features whose addition would have saved hundreds of thousands of lives each year. As the federal government continues its "hold" on the issuance of regulations governing business operations, and the necessity for increasing uniform federal safety criteria, the importance of a strong civil justice system "to right wrong" remains obvious. The rule of law remains a strong incentive for businesses to minimize an otherwise cavalier attitude toward consumer safety. As we set out to review some of the more obvious cases of the true product liability crisis, ask yourself: how many more Ford Pintos, super absorbent tampons (causing toxic shock syndrome and death), and how many more deaths from DES would our citizens endure if it wasn't for the few Americans who resorted to our court system for legal redress? As we focus our attention on the origins of the product liability crisis -- neglect and marketing defects -- we find that the lessons of legal and engineering safety history must be remembered. Courts of last resort have, over the years, been quite prophetic as they defined the scope of legal responsibility for the victimization of American consumers. Likewise, some of the more secretive moments in our history reveal just how calculated product neglect has become. Yet, this study firmly demonstrates that the need to protect our access to a responsive court system is essential. The United States Constitution guarantees all citizens access to justice. If we allow others to blame injured victims for resorting to the courts when they are harmed, we join ranks with those bent on destroying the system of justice which remains the last bastion of democracy. It is the duty of our government, and each of us as offices of the court, to assure our brethren a legal remedy for injury -- despite depressed marketing conditions. Motor Vehicles: A History of NeglectTwenty-five years ago, our judicial system gave the motor vehicle industry fair notice that it would be held accountable for injury due to poor design. "No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and resulting injury, usually caused by the so-called "second collision" of the passenger with the interior part of the automobile, all are forseeable. Where the injuries or enhanced injuries are due to the manufacturer's failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable." Despite this notice, not only has the industry slowed safety development, but at times, these bastions of corporate America have taken purposeful action to avoid adding needed safety. Speaking for his compatriots -- who separately met in secret -- former President of Ford Motor Company, Lee Iacocca, convinced President Richard M. Nixon to postpone several vital federal safety regulations, which would have substantially improved crash protection by adding air bags in 1974 and force major safety improvements to vehicle fuel systems. In 1971, in the Oval Office, Mr. Iacocca stated: "And we have on our cars today a hundred and fifty dollars of, I don't say all gadgetry ... but the shoulder harnesses, the head rests are complete wastes of money." Even while the President of the Ford Motor Company and corporate leaders of Chrysler and General Motors were each lobbying the President of the United States, their design engineers were acknowledging the need for safety changes -- changes which have been slow to come. In 1968, Ford engineers advised management of the injury reduction obtained by adding simple shoulder belts to the Ford vehicle safety systems. Ford Motor Company Intracompany Communication Engineering Staff 19 September 1967 Subject: Protection Offered by Shoulder Belt (3 Point System) In response to the request for more complete documentation pertaining to the protection, pro and con, offered by the 3-point shoulder restraint system proposed for 1968, the following clinical and experimental data should be combined with Impact Dynamics findings for consideration. These are essentially contained in my memo of 29 August to Mr. Briggs. We have noted all published data, and some unpublished data, known to us relative to clinical cases found to date in automobile accidents. This is very sparse to date and certainly inconclusive. It seems important to note that members of the Biomechanics Department have participated in the only experimental studies with living subjects accomplished to date with an objective of assessing injury potential which may be attributed to various restraint systems. Our position based upon the evidence we have found experimentally is as follows:
In the 1960's, the industry found it popular to study safety improvements on a "benefit/cost" basis. Typical of this analysis was Ford's "Safety Benefit/Cost Summary" which revealed a startling approach: "This memorandum summarizes an approach popular in government. It could reduce about the desirability of safety features. Traditional or not, the need for product decisions thus seems to hinge upon the price one places upon human injury and suffering." The lessons of history often escape our thought process, particularly when the need for profit becomes pre-eminent. For example, despite repeated verdicts against negligent design practices through the 1970's and 1980's, the motor vehicle industry has refused to add three point rear seat belts (Fox v. Ford Motor Company, 575 F.2d 774 (10th Cir.1978); ignored the necessity for head rests to prevent serious injury during a rear end collision (Buccery v. General Motors Corp., 583 P.2d 305 (Calif. 1978)); turned their backs on the necessity to pad doors in an effort to avoid injury due to intrusion (Cryst v. Ford Motor Co., 571 S.W.2d 683 (Mo. Ct. App. 1978)); continued the sale of vehicles with roofs which were incapable of holding up under rollover conditions (Turner v. General Motors Corp., 514 S.W.2d 497 (Tex, App. 1974), 584 S.W.2d 844 (Texas 1979)). Over 100 million vehicles are on the road today with only rear seat lap belts, and without sufficient head rests or roof structures. Let us look more closely at several of these hidden dangers. Seat Belts Despite industry studies since the mid-1960's demonstrating the inadequacies and injury-producing effects of a motorist wearing a lap belt only, virtually every vehicle sold in this country until 1989 (with the exception of certain European models) contained only rear seat lap belts. While this silent danger did little harm when most of us were not wearing seat belts, the last several years have produced a marked increase in usage and seat belt injuries. The nature of these injuries from lap belts was well described in a 1967 Report of the Highway Safety Research Institute from the University of Michigan, which pictorially documented lap belt injuries: Front seat belt restraint has become a primary cause of the "product liability crisis." As people being "buckling up," dangerous design configurations are causing catastrophic injuries. Almost every American-made car of the 1970's and 1980's contains a load limiter, which is euphemistically called a "window shade retractor" in the front seat belt mechanism. This device allows the seat belt shoulder harness to be pulled freely from the retractor and lock the shoulder belt at the point to which it is pulled. Shoulder belt looseness can arise unintentionally by simply moving forward to adjust the radio or reaching over to the glove box. It has been well documented that shoulder belt looseness seriously compromises the protective capabilities of a seat belt system. More than 12 years ago, researchers at McGill University reported to the Stapp Car Crash Conference that the "window shade retractor" allows excessive slack and contributes directly to the severity of the injuries of a fully restrained occupant. While they declared this device "to be unsatisfactory and urged that it be replaced," not one manufacturer took steps to eliminate this device until last year. Apparently unsatisfied with the design dangers inherent in the more traditional belt systems, the industry began installing what are known as passive seat belt systems. Again, ignoring warning signs from history, manufacturers have introduced two basic types of passive belts destined to cause untold injury and death. One system, as depicted below, consists of a two-point shoulder belt which is motorized and routed along the roof edge; this system then includes a manual lap belt. The other primary passive belt system includes a non-motorized automatic three point belt which is attached through the door. In 1962, a seat belt manufacturer in England alerted consumers to the dangers of its own two point shoulder belt restraint by issuing the following advertisement. Within a matter of months, the two point system was removed from public consumption. In 1967, researchers in Michigan again reminded the industry of the injury-producing dangers of a shoulder belt only system by disclosing the pattern of injuries they had produced in testing: These injuries include complete laceration of the liver, spinal cord injury, and rupture of the heart. They manifest themselves because: "... there is nothing to prevent the lower torso from swinging forward and rotating out of the belt at impact ... " "... In a severe front-end crash, ... tests indicate this strap might cause critical injuries to internal organs (or the neck) when the wearer slides down out of the belt." While the industry may have thought it could avoid the certain catastrophe of shoulder belt only restraints by including a manual lap belt with the passive shoulder belt, that has not happened. Studies issued during the last few years establish that most motorists are using the shoulder belt without the lap belt. Even industry consultants in product liability litigation have observed that: "While some drivers may forget to fasten the lap belt, a potentially more serious reason lap belts may not be worn with the two point shoulder motorized restraint system is that drivers may incorrectly perceive or conclude that they are fully protected because the shoulder portion of the restraint automatically moves into place." Of course, another design flaw of these passive restraints, whether the belt is just a shoulder belt attached to the roof liner, or the door mounted passive shoulder and lap belt system, is the resulting injury is when the door opens in a crash. Fatalities from ejection remain high, with about 28 percent of all deaths stemming from the occupant being thrown from the vehicle. Once a door opens in a vehicle equipped with a passive restraint, there is little to prevent immediate ejection -- or for that matter, strangulation. Roof Structure Another tragic example of history repeating itself, and another cause for the product liability crisis is the inadequacy of roof structure. Since the early 1960's, the industry has recognized the dangers of serious and fatal injury during the instance of a rollover if the vehicle's roof collapses. The industry went so far as to establish a dynamic rollover test procedure (SAE J857) and document the necessity for strong roof crush characteristics to minimize serious injury. Yet, during the past decade, most manufacturers have taken the extra step to reduce the cross-section of the roof structure, and lightening the roof by creating open sections at the rail, which in turn allows for total roof collapse in most rollover accidents. Compare the roof design of a Chevrolet Blazer, prone to rollover, with that of an European sedan, far less prone to rollover. Why then the disparity in protection? The answer is at the heart of this product liability crisis. Motor Vehicles: Vehicle Design with Crash Protection in MindFor many years, engineers have written that vehicles should be designed with regions at the front and rear to crumple on collision in a controlled fashion at a preselected rate, thereby reducing the forces or the retardation rate which a passenger may have to bear. The principle supporting crush zone design is the necessity of a "survival space" or a minimum residual space after impact which envelopes the occupant. The survival space should take into account occupant size diversity, driving posture, and seats. It has been suggested that, this in this space, all profiles be rounded to a radius of more than 100mm to accommodate the body's shape, and that this design be maintained for collision speeds of at least 30 miles per hour (delta V). This crashworthiness concept allows for subframe members to "accordion" thereby soaking up the energy of the crash. The necessity and ability to accomplish this task is particularly challenging, and until recently, has been completely ignored by most manufacturers in connection with near side impacts. While the reinforcement of the side structure from roof edge, to the door, to the side rail of the under carriage assists in reducing intrusion (which is the primary cause of injury on a near side impact), the necessity to carefully contour the interior door with shock-attenuating padding cannot be over-emphasized. Each year, hundreds of motorists suffer fatal and near fatal injuries from side impact intrusion, resulting from acceleration injury to the heart, ribs and brain. Appropriately designed padding can and does absorb the blow and minimizes the impact to the occupant. Reinforced doors and roof pillars should protect against lateral blows and rollovers. Fuel Systems Fuel systems, including the fuel tank and routing of fuel lines should be designed as far away from the rear axel and as far into the vehicle frame as possible to avoid puncture or disconnection during a crash. As a result of the exposed fuel components in cars like the Ford Pinto, Ford Mustang, and General Motors Corvette, as well as light truck fuel system defects, one might suppose that manufacturers would redesign their vehicles to avoid these continuing safety risks -- i.e., fuel tank puncture, fuel line pull-out, and the like. Yet, vehicles of the 1980's and 1990's continue to be sold with systems vulnerable to separation in a variety of crash modes. For instance, Ford vehicles continue to be designed with a side-fill filler pipe which pulls out on impact, and the Corvette safety system of the 1970's -- a rubberized bladder within the fuel tank to reduce puncture leakage -- was removed from production during the 1980's. Structure Safety design does not, however, end with the vehicle's structure. Inside the vehicle, the panels, seats, and protruding elements must be carefully shaped, contoured and developed to dissipate kinetic energy over a wide area. For instance, the instrument panel should be built to cave in if an occupant strikes it with sufficient force to incur injury. Other internal components, which endure to this day in vehicle production, such as a rigid steering wheel (which should be relatively flexible to reduce head trauma), windshield frames, including the A pillars and header area (which should be both properly contoured to allow the head to slide off and padded to absorb impact to reduce injury), and seats (which are either to weak to resist instantaneous failure in a rear crash, causing the occupant to be catapulted rearward, or are unpadded surfaces which injure rear occupants thrown into them by a frontal crash) continue to injure innocent consumers. There has never been any real doubt that serious injury in a motor vehicle accident is the result of multiple factors, some of which can be carefully controlled by product design. While victims should not expect a panacea in safety design, it is only fair to expect manufacturers to minimize the carnage on the highway by safe vehicle design. Engineers have known for decades that when occupants are "properly packaged," serious injury can be avoided at speeds as high as 50 miles per hour. The Crisis Extends Well Beyond Motor VehiclesAsbestos Approximately sixty percent of new product liability filings in 1990 and 1991 involved a single product: asbestos. Courts and hospitals have been inundated with the victims of this ultra-hazardous product which was placed in every work place, home and school by an industry that had clear knowledge of its lethal propensities. It is scientifically undisputed that asbestosis is a dose-response disease. Typically, the disease does not manifest itself until years after initial exposure to fibers. The insensitivity of the asbestos industry to workers and consumers is now legendary. Is there any serious doubt why a crisis exists? Exploding Tires Since at least the mid-1970's the tire and wheel industry have known of the latent danger associated with mismatch of truck tires and rims, and hundreds of mechanics have been maimed and killed because of industry-wide neglect in either altering the tire bead design or providing cogent instructions to avoid these accidents lying in wait. RMA APRIL 26, 1972 RUBBER MANUFACTURERS ASSOCIATED MEMORANDUM MEETING: RMA TIRE ENGINEERING POLICY COMMITTEE DATE: WEDNESDAY, APRIL 12, 1972, 10:00 A.M. PLACE: SHERATON HOPKINS HOTEL, CLEVELAND, OHIO MOUNTING OF LT TIRES ATTENTION WAS DRAWN TO REPORTS THAT THERE HAVE BEEN INSTANCES WHERE 16" TIRES HAVE BEEN MOUNTED ON 16.5" RIMS AND 14" TIRES ON 14.5" RIMS. IT WAS PROPOSED AND APPROVED TO REQUEST THE SERVICE MANAGERS COMMITTEE TO ADD A CAUTIONARY STATEMENT TO RMA DOCUMENTS Despite this notice, the RMA and individual manufacturers withheld issuing safety or service bulletins until a bare minimum government regulation dealing with rim labeling was promulgated five years later. Nevertheless, no real warning of mismatching was issued until the early 1980's. Even then, manufacturers place bare-bones statements on tires. The inadequacy of these communications and the design defect at issue has been responsible for more than two hundred lawsuits and literally thousands of injuries or deaths. Hazardous Toys More than 150,000 injuries and dozens of deaths occur every year to defenseless children because of hazardous toys. In the past decade, the Consumer Product Safety Commission has not issued a single toy safety standard, and therefore the toy industry is constrained only by the civil tort system. Toy hazards generally lead to choking, strangulation, laceration, blindness, deafness, and death. The tragedy of this situation is that the government agency created to police the safety of toys in America is virtually defunct. The CPSC samples less than one percent of all the toys available for purchase in America. Most dangerous toys are never sampled by the CPSC. The remain for sale, often year after year, exposing children to continuing risk of injury and death. Motor Boat Propeller Injuries For at least two decades, motor boat propeller injuries have littered the emergency rooms of America. Over a fourteen year period, thousands of people have been maimed and killed by propellers. The Red Cross has estimated over two thousand propeller deaths and injuries in a one year period, 1988 to 1989. While individuals have patented various guards for motor boat propellers since the early part of this century, the major manufacturers have turned their back on this increasing hazard. While through the 1970's and 1980's the manufacturers tested various guards and found minimal operational reductions in speed and maneuverability with guard attachments, stating at one point: "we are very close to the solution of what needs to be the configuration of the prop guard ..." the sale of unguarded propellers continues. These sales continue despite the conclusions of various scientists confirming that: " ... the propeller guard can substantially reduce or eliminate injury over the range of impact speeds. The results further demonstrate what has been know by the transportation for decades and that is the efficacy of energy management systems with regard to structural design and impact injury prevention." Vaccine Dangers Each year over the past decade millions of children receive the DTP vaccine. The vaccine as designed and distributed in the United States includes pertussis bacterium, which creates a continuing and substantial risk of neurotoxic reaction, leading to paralysis and death. This risk has been essentially eliminated by Japanese pharmaceutical companies who have developed and currently use a pertussis toxoid vaccine. This vaccine is far less reactive than that used in America. Evidence obtained in litigation has shown that U.S. drug companies abandoned efforts to develop similar, safe vaccines because of cost considerations. Tobacco Toxins One product more than any other sold in the United States is responsible for death and destruction of untold millions each year: cigarettes. Despite the protests of denial from the manufacturers of these "cancer sticks," cigarette smoking and passive cigarette smoke are responsible for diseases such as lung cancer, heart disease and emphysema, among others. Cigarette manufacturers should be held accountable for the billions of dollars in medical costs and untold billions in the lost value of productive Americans for both their failure to design a safe cigarette, and the conspiracy to hide the true risks of harm from millions of Americans who have been psychologically addicted to cigarettes for years. As the Surgeon General noted in 1964: " ... [the] overwhelming evidence indicates that smoking -- its beginning, habituation, and occasional discontinuation -- is to a large extent psychologically and socially determined." Why should victims of cigarette manufacturers, and the already overburdened medical insurance community, bear the cost of injuries that could have been prevented with a more detailed warning label or alternate design? ConclusionIt would be relatively simple to continue this accounting of products which annually result in injury and death to American consumers. The frightening fact is that Corporate America has abandoned the public by choosing profit over safety. Mounting physical and emotional trauma from product hazards will result in a proportionately (but reduced) number of lawsuits each year. Viewed as social and fiscal issues affecting all Americans, the time has come for manufacturers to become, in a way, guarantors of those of us who so generously allow them to prosper as part of "Corporate America." Our dependence upon product safety demands that manufacturers spend more time and money to lessen the likelihood that you or I will become a statistic of corporate irresponsibility. This "crisis" will end only when manufacturers spend time, effort and money to design safety into their products. |