Design Defects Producing Neck and Head Injuries
Historically, helmetry had its origins in some of our more violent geo-political and religious struggles. Helmets found early use in the armies of Spartan warriors in the 5th and 6th Centuries B.C. The early Romans of Julius Caesar have been depicted wearing brass and iron laden helmets as they marched into battle. When the crusaders landed in the Holy Land in the 12th Century A.D., they were equipped with full-body armor, including full-coverage metal helmets with face masks. Of course, the American soldier of the First World War was issued a standard metal helmet to ward off shrapnel and flying debris.
Helmets entered the sports scene in this country in the early days of football when athletes like Jim Thorpe, John (Paddy) Driscoll, and Red Grange began sporting leather caps in the 1920's. By the time the Providence Steamrollers captured the NFL championship in 1928, virtually all professional football players were wearing padded leather caps. During the 1940's and 1950's, the football helmet underwent a metamorphosis leading to the development of a plastic helmet; virtually every player in the 1952 title game between Cleveland and Detroit wore open-face plastic helmets with leather strap suspension. During the mid-fifties, players like Joe Perry (49ers) and Alan Ameche (Baltimore) used small plastic facemasks, while Otto Graham wore a single bar facemask during his exploits in the 1954 NFL championship game. Through the 1950's and into the 1960's football helmet design remained relatively the same. Until the mid-sixties, the several companies involved with the design and sale of helmets (e.g., Wilson Sporting Goods Co., Spaulding Sporting Goods Co., and MacGregor Sporting Goods Co.) produced headgear, which was relatively unsophisticated.
The helmet design practices followed in the sport of football expanded into other athletic/risk taking activities. Automobile racing, motorcycling and baseball enthusiasts and players slowly adopted headgear aimed at providing some perceived level of protection. Regrettably, until the 1960's, most helmets were designed without any real understanding of how this protective equipment benefits the user.
In the 1960's, giant studies were made in the medical and engineering sciences to better understand how head and neck injuries occurs from a blow to the head. Pioneers in these related fields included Dr. George Snively, Dr. Richard Schneider, Dr. Ayoub Ommaya, Dr. Channing Ewing and Dr. Daniel Thomas (and their respective collaborators). As these medical researchers began to uncover the nature of the physical forces required to cause serious head and neck injury, many responsible organizations and businesses began to change helmet design. One of the pioneers in safety helmet design was Dr. Richard Schneider, whose patent (No. 3462763) vividly describes some of the critical purposes of helmetry:
"It has been found that the worse damage to the brain occurs in those closed head injuries in which skull fracture does not occur. There is no dissipation of the impact of the blow but there is a direct transmission of the force to the underlying area of the brain or to the opposite side of the head resulting in a contre coup (that is, damage to the skull or brain on the side opposite the side of the blow.) In closed head injuries where fracture occurs there is some dissipation of the force of the blow as the bone breaks resulting in less damage to the underlying brain than if the skull had not been fractured. The protective headgear assembly of this invention consists of an initial impact force absorbing and distributing outer shell and an impact force distributing and absorbing multicellular inflatable inner support crown therefor which coact to absorb impact forces and distribute these forces throughout an extensive area of the headgear assembly so as to minimize the localized forces applied to the wearer's head. The outer shell has areas provided with relatively different degrees of resiliency. Some sections of the outer shell constitute firm sections and these cover and protect critical brain areas where damage is most likely to cause neurologic disability, and other sections of the outer shell constitute more resilient sections and these cover the relatively silent areas of the brain. When positioned on the wearer's head, the outer shell firm section has an annular portion which overlies and protects the inferior and posterior walls of the bony frontal sinus, the dural lateral sinuses and confluens at the base of the skull. This annular section is positioned at the back of the wearer's head substantially above the cervical spine to avoid having this part of the protective headgear outer shell driven into the cervical spine causing severe cervical hyperextension injuries which result in cervical fractures or spinal cord damage. The firm section of the outer shell also includes a medial arcuate strip which runs longitudinally of the protective headgear in a direction fore and aft of the wearer's head, overlying the longitudinal sinus and bridging veins, the arcuate strips which run transversely of the protective headgear overlying the brain motor strips. The resilient sections are bounded by the firm sections so as to form arcuate shaped quadrants in the outer shell which overlie the relatively the relatively silent areas of the brain, namely those regions of the brain which might absorb some stress without danger of as much residual neurologic deficit. These resilient sections of the helmet are thus capable of yielding and deforming under the force of a blow so as to absorb the initial impact of firm sections and not transmit it directly to the brain."
Equally important in the development of improved helmet safety were the works of Dr. George Snively and his co-workers, who developed the Peter Snell Memorial Foundation, which during the past three decades has single handedly been responsible for the development of the principles upon which virtually every helmet test standard is based to gauge the safety of this vital equipment.
While helmet safety design has been rather slow in its evolution, helmet acceptability and use now spans such varied activities as race car driving, motorcycling, baseball, hockey, football, lacrosse, equestrian activities and bicycling. The nature and extent of head and neck protection provided by modern day helmets varies quite significantly based upon its design and material parameters. In many instances, the extent of protection is dictated by the acceptable helmet style which participants in these sports activities are willing to use. Thus, while hockey and baseball players are equally exposed to head impacts from a speeding baseball or hockey puck traveling at speeds in excess of 90 m.p.h., the protection afforded by helmets designed for these sports differs dramatically. Similarly, the horseback rider and the bicyclist are exposed to falls and head impacts at speeds generally ranging from 10 m.p.h. to 30 m.p.h. and yet only the bicyclist's helmet (if properly designed) can reasonably protect against injury.
Why have these safety products, all designed to serve the same purpose (i.e., absorb the shock of impact), evolved differently and offer significantly variable levels of protection? Are there logical and scientific explanations for these differences, and how can consumers and their attorneys judge the safety or conversely, the danger of these products?
The attorney's evaluation of a potential helmet design claim is fraught with complex analysis, but a careful review of the helmet, its usage, the accident, and the injuries may lead to a legitimate claim which will provide the victim with appropriate and just compensation.
Injuries attributable to helmet use and design generally fall into two main categories: head injuries and spinal cord injuries. This article is intended to provide the reader with a general overview of the scientific and medical issues, which ordinarily arise, in this sort of litigation. This overview is then followed by a review of applicable legal principles which generally apply. Finally, a step-by-step review of the essential pre-trial discovery activities, and some aspects of the presentation of evidence at trial are offered so that counsel will appreciate the scope of this litigation.
Nature and Extent of Problem
While studies have repeatedly documented that the probability of head injury to motorcyclists is significantly greater when they are involved in accidents and not wearing any type of helmets, no one knows precisely how many people suffer head and/or neck injury each year while wearing poorly designed helmets. No one has ever attempted any sort of retrospective study of the relationship between helmet design and the frequency or nature of injury. The closest semblance of a review of this subject was conducted in the mid to late 1970's by the National Registry of Head and Neck Injury, then headquartered at Temple University, which confidentially identified the football helmet model worn by the player suffering head or neck injury. Unfortunately, the Registry has discontinued that part of its data gathering for unknown reasons.
Although the U.S. Department of Transportation requires every motorcycle helmet sold in the U.S. to meet a minimum performance standard, DOT has failed to make any effort to study the relationship between helmet model and injury—an analogous tracking system was established at DOT for automobile products. Lacking any reasonably sound statistical method to correlate injury to helmet design, counsel is relegated to a case by case review. There are, however, some clues to the effectiveness of helmet design which can be gleaned from certain reported data. In the mid 1960's through the mid 1970's, it was reported that among high school, college and professional football players there were annually five to ten deaths, twenty to forty head injuries [defined as an injury causing permanent neurological deficit] and fifteen to twenty-five permanent spinal cord injuries, and fifty to sixty transient quadriplegics. In 1973/1974, a minimum performance football helmet standard was adopted and a year or two later the "spearing technique" was outlawed. These two events resulted in the production of more safely designed helmets and the reduction of incidents when the helmeted-head was, intentionally involved in game plays. Between 1975 and 1983 the numbers of reported fatalities and head and neck injuries steadily decreased; unfortunately, since 1983, there has not been any further decrease in injuries. This leveling off appears to coincide with a reduction in the number of helmet models available to the consumer--several companies who were supplying good helmets phased out that aspect of their business--and complacency in design because the remaining helmets meet a stagnant helmet standard. While the reported football related statistics cannot accurately account for all head and neck injuries they clearly reflect a reduction in accountable injuries occurring after helmet designs were forcibly improved by the promulgation of a helmet standard. Litigation experience further reveals that serious neurological injury to motorcyclists in low velocity accidents is clustered around helmets which meet only the minimum federal standard, rather than the more stringent standards promulgated by the American National Standards Institute and the Snell Foundation.
The variations we see in helmet configurations, from one sport to another, are a product of a balance established by the helmet industry and the market place (which is influenced by the industry) between safety and sales appeal. These variations include the shape, extent of coverage, method of retention, and materials used for shock attenuation. To understand the impact attenuation effectiveness of helmets used in various sports, and to determine whether current manufacturing variations are acceptable, we begin with a brief description of the three basic safety components of a helmet: the shell, the liner and the retention system. "Head Injury Protection", by George G. Snively, M.D.
Virtually every safety helmet has a shell. The object of the shell is to provide a smooth hard outer surface, which resists penetration and serves to distribute an impact load over a large area. If a shell can effectively spread a localized impact load over a large segment of the shell, it will reduce the force transmitted to the liner (and perhaps to the head). Motorcycle helmet shells are generally built with either fiberglass resin or thermoplastic; thermoplastic is much cheaper to produce; however, thermoplastic is less rigid than fiberglass and tends to buckle-in on impact, rather than spread the load. Generally, helmets built with fiberglass obtain superior test results in impact attenuation. Almost every other type of helmet used in sports is made with some sort of thermoplastic shell. However, the choice of a more flexible shell results in a helmet which is not likely to distribute an impact load as well as most high quality motorcycle helmets.
Most modern-day sports helmets include a shock absorbing liner. As the second line of defense, the liner provides protection by compression under load. The energy of the impact is absorbed as the material compresses. Once again, the material of choice for liners varies with the style and use of the helmet. Helmets used in motorcycling and bicycling generally use expanded polystyrene bead (EPB) foams. The crushing properties of this material is determined by its density; while the absorbing effectiveness of EPB is a product of density and thickness. Other helmets used in football, hockey, baseball and equestrian activities generally use synthetic rubber based foams (e.g., Ensolite and DeCello) or inflatable bladders (filled with liquid or air). These foams and bladders offer the advantage that they have excellent rebound properties, while the EPB liners do not rebound well after they crush in the absorption of energy. However, the trade off obtained by the manufacturer which chooses a very resilient liner is that less energy is absorbed by this type liner than by one made with EPB materials. The selection of material for a specific sport helmet has often been predicated upon the idea that certain sports involve repeated head impacts requiring a resilient liner which is available on each impact, rather than a crushable liner which permanently deforms, thereby reducing its effectiveness on subsequent impacts. Other explanations for choosing a cushioned liner relate to cost, weight and comfort. It seems apparent that these factors have prevailed over safety in the design of many helmets, including those used in baseball and equestrian activities.
The comfort factor which has dominated design parameters for baseball and equestrian helmets also effects the selection of liner material for football helmets. Today's football helmets basically include relatively resilient liners made with one or two materials of different density; each material rebounds relatively well--which is not always a good idea. Since helmets come in various hat sizes, manufacturers produce two or three different shell sizes and then they vary the thickness of the liner to produce the necessary hat size. These variations in liner thickness and shell size will produce variations in impact attenuation. A two part liner provides a very cushioned material closest to the head (referred to as a fitting liner or pad) and a much more dense material sandwiched between the inside of the shell and the fitting liner. The rationale for this design is to provide an identical quantity of protection with the dense liner in each size helmet and a variable fitting liner for comfort. While the industry's rationale for selecting resilient liners (multiple impact exposure) led to the development of a standard suitable to this design consideration, football helmet liners have, in fact, become less and less resilient in the past few years. The industry appears to have discovered that superior impact protection requires much more dense material, and that these materials will not lose their effectiveness with multiple low velocity impacts.
The design of a shell and liner system requires a balance between shell flexibility and stiffness, and liner density and thickness. The choice of a very flexible shell (due to shell thickness and material) will result in more direct loading of the liner. In turn, the liner needs to be relatively thick and dense to accommodate these localized forces. A more rigid shell, which spreads the load, allows for larger surface load to the liner, thereby necessitating a relatively thick liner to allow for absorption by crush. Shell size can also play a major role in impact attenuation. While there are comfort and safety factors to take into account, it is likewise true that increasing the size of a shell's interior space allows for more liner. How large a shell can be tolerated is an unanswered question; yet the secret to greater head protection may lie in this area of ergonomics.
A helmet can provide protection only if it remains properly seated on the wearer's head. Helmet retention is derived from a proper fit and a well-designed retention system. All sports helmets include some sort of a chinstrap, which is usually made with nylon or leather materials. There are many variations in the chinstrap attachment. Motorcycle bicycle and hockey helmets generally use a double D ring, a knurled bar arrangement, or a plastic fastener. Recently, these systems have been supplemented with a velcro which is purportedly intended to fasten the loose end of the strap after attachment. Other helmets use snap attachments (football) or an open metal catch (equestrian). Retention systems are not tested dynamically. Instead, the helmet standards which test the retention system load the system to analyze its performance in a static state. Several standards have no test whatsoever for the retention system--e.g., football helmets and equestrian helmets.
Knowledge of how the head responds to impact is important for the design of protective helmets. The interaction between helmet impact and neck loading is another significant phenomena which requires attention and is not addressed by any existing helmet testing standard. While the first edition of the football helmet industry standard (NOCSAE) conceded that helmet design must take into account the relationship between the helmets and neck injuries, that standard did not attempt to measure neck loading; in subsequent editions of the NOCSAE standard, the authors delegated any reference to concern about neck injury.
Head impact protection is generally described in terms of either acceleration (e.g. FMVSS 218 specifies that motorcycle helmets shall attenuate impact forces so that the acceleration remains below 400g's) or in terms of a weight function of head acceleration (e.g., NOCSAE adopted a formula which analyzes head acceleration as a multiplier with other factors). Presently, there is only one government helmet standard and it addresses only motorcycle helmets; there remain several variations upon the government helmet standard which are more stringent (e.g., the Snell Memorial Foundation Standard, the British Helmet Standard, and the ANSI standard). Likewise, there are voluntary minimum standards (Snell and ANSI) for helmets used in bicycling, baseball and hockey. Virtually all of these standards test the shock attenuation capabilities of helmets by drop tests--e.g., the helmet is strapped to a metal or composite headform and released a distance (which varies between 3 feet and 9 feet) onto a metal or resilient place--which is flat or rounded. One or two standards use a more resilient head form and a resilient striking surface in an effort--purportedly--to study helmets under actual use conditions (e.g. NOCSAE and the equestrian helmet standard adopted by the U.S. Pony Club). Each standard, regardless of the construction of the headform, or the striking surface, predicates pass or failure upon the helmet's absorption of energy, thereby minimizing the translation of the energy to the head. As one would expect, variations in helmet design and construction produce substantial differences in the margin by which different helmets satisfy the test criteria. Thus, one helmet may only marginally satisfy the test with readings of 300 to 380 g's, while another helmet has readings in the 100's. Generally, helmets are impact tested in four locations--front, side, top and rear; and, there are two impacts at each site; and, the tests occur with variations in temperature. Manufacturers are required to test only new helmets.
Existing helmet standards only test new helmets under laboratory conditions. While there is a need to provide for repeatability in testing, the reliability of safety equipment should also be judged by dynamic testing of new and used helmets. For instance, when a motorcyclist catapults off his cycle in a crash, his helmet-covered head will ordinarily strike the pavement, or a curb, or a motor vehicle--rarely does a cyclist strike a metal plate. A football player's head collides with the turf, or another player's helmet or body, rather than a small resilient pad. Examples of predictable helmet-strike surfaces are easily contrived. This then remains an area which designers need to address.
Helmet Related Injuries
While it is impossible to account for every way in which poor helmet will cause injury, there are many known failures which reflect upon the adequacy of design, maintenance and usage.
Retention system failure can lead to dire consequences. The rate of helmet "ejection" and injury consequence is considerably higher in motorcycling than in any other sport. The resulting injury from helmet "ejection" is easily understood; however, the reason for helmet loss bears some study. First, it must be remembered that existing standards test the retention system statically, rather than under accident (dynamic) conditions. Thus, the attachment devices are not truly analyzed until an accident takes place. Helmet "ejection" is ordinarily due to fitting problems, or the failure to adequately fasten the strap, or because of inadequacies in the retention design. There is also some potential for a fairly well-fitted helmet to become loose because of perspiration, thereby allowing a fastened helmet to come off in an accident. Some helmet systems use a plastic fastening device with Velcro on the straps for loose end attachment. Some riders unknowingly bypass the plastic connection and simply affix the straps to the Velcro attachments. These attachments cannot withstand impact loading, and separation results in helmet "ejection".
In football, helmets use a chinstrap, which snaps to the shell. Today, most straps use four snaps. During game plays snaps may spring loose since they are designed to be easily removed by the wearer. When one or more of the snaps some unseated, the helmet can rotate on the wearer's head or come off entirely thereby inducing injury. Read more from the sports injury lawyers at Anapol Schwartz.
Head impact attenuation is directly related to the effective distribution and dissipation of impact force by the shell and liner. Helmet shells can be poorly designed or improperly manufactured so that they fail to effectively distribute the impact load. This happens when the shell is unnecessarily thin or made from a very flexible plastic. This type of design failure is not physically observable because the shell's failure causes a local buckling of the shell--and after failure it rebounds to its original shape. If the shock absorbing liner is made of a deformable material--such as polystyrene--shell buckling can be deduced from a local indentation in the liner. Shell failures induced because of manufacturing imperfections can result in unintended brittle shell cracking. While fiberglass-layered shells are designed to delaminate in a controlled manner, if polycarbonate materials are not properly processed, the finished product will be very brittle and, on impact, the shell cracks uncontrollably.
Shock absorbing liner failure is almost always attributable to design choices. If an EPB liner is chosen with a very high density, it can fail by not absorbing the energy of an impact. Instead, this rigid structure causes complete transmission of the force to the head. If you have a known strike to the helmet-covered head, and the liner shows no evidence of compression, you should suspect that the density of the polystyrene liner resulted in a no energy absorption. Alternatively, a low density polystyrene liner or a rubber-based liner which is very "soft" allows for the relatively uncontrolled transmission of energy to the head.
The failure of any helmet component can induce head injury, or spinal cord trauma. Skull fracture is predominately found when helmet "ejection" occurs. Closed-head injury occurs when the helmet fails to manage the energy of impact, or when the forces of impact exceed the helmet's design capacity. Typically, helmet induced closed-head injury is manifested by brain contusion or hematoma of the subdural space. This localized injury can cause contra-coup brain injury and secondary brain swelling, which can lead to diffuse brain damage or brain stem injury.
The exact mechanism of closed head injury and how injury can be minimized remains controversial even now. While almost all researchers agree that brain injury is caused by excessive acceleration, there is disagreement over the effect that helmets or other impact surfaces can have on the reduction of injury. For many years, it was believed that brain injury resulted from direct loading to the brain from impact to the head (a coup injury) or the transnational movement of the brain causing injury at a site opposite the impact (contra-coup injury). In the 1960's, however, Ommaya and his workers conducted animal research to support Hoburn's earlier theory that head injury does not require direct impact, but can occur from indirect loading of the head by a sudden deceleration to a remote part of the body (e.g., upper torso impact) or to deceleration to the mandible (e.g., impact to the jaw). The principle method of brain injury espoused by Ommaya was known as "rotational brain injury." It has been predicated upon the principle that the brain is viscoelastic and is, therefore, very sensitive to directional loading. More recently, Ommaya, Gennarelli and Viano have independently argued that even when the head is struck, the injury to the brain involves both direct translational loading and angular acceleration which causes the brain to rotate within the skull. The latter conclusions were also supported by work published by Ewing, Thomas et al.
While the manner by which brain injury occurs has evolved, the work on head injury prevention has been rather slow. The helmet standards are all predicated upon the assumption that reducing acceleration to the head will reduce the probability of brain injury, whether its due to translational or angular acceleration. These standards require the minimization of acceleration at various drop heights. Even at this time, there is disagreement over the human threshold for closed head injury to translational acceleration and virtually no data base for a threshold for angular acceleration.
Most experts do agree that skull fracture and localized brain damage--identified by bleeding and contusions at one region in the brain--is related to direct head impact and can be minimized by good helmet design. However, there remains disagreement over whether diffuse brain damage (known as diffuse axonal injury) can occur with one localized impact; and, more importantly there is strong disagreement over whether helmet design can prevent or minimize diffuse brain injury.
The relationship between helmet design and spinal cord injury also remains controversial. Aside from work conducted by a few military government agencies in the 1960's, there has not been any large scale research in this area of helmet safety. Nevertheless, many researchers continue to stress that reasonably designed helmets will minimize the risk of spinal cord injury.
These observations are predicated upon various laboratory tests of spinal segments which reveal that the spine is viscoelastic*, thereby rendering it sensitive to compression injury in direct relation to the force and duration of the load. In other words, injury to the spine is related to the curvature of the spine, the force of impact to the head and the time over which the spine experiences the impact. If a force to the spine exceeds 1000 lbs. when the neck is auxiliary aligned (which requires impact to the top of the head when it is flexed forward) then compression injury will occur when the duration of the load exceeds a fraction of a second. Whether this type of injury can be avoided or its probability reduced by helmet design also remains controversial. Torg and Burstein* remained convinced that helmet design cannot prevent this injury; while Friedman and Lafferty* have demonstrated that spinal cord injury is preventable with proper helmet design.
Impact to the occipital (top) region can cause compression of the spinal cord if the helmet fails to sufficiently slow down the transmission of energy along the cord axis. In the event of helmet rotation on the head, energy may be transmitted to the cord in an irregular fashion, causing dislocation or facette displacement.
Helmet Design and Marketing Responsibilities
Those businesses which market sports helmets rarely do so on their own. Most helmet manufacturers purchase raw materials for shells and liners from plastic/chemical companies. Typically, helmet companies employ only a few engineers, who generally rely on the research and development activities of the suppliers of their component parts. Helmet companies ordinarily test prototype helmets with several materials, and then they choose a reasonably priced (or an extremely inexpensive) material which allows the product to pass the applicable standard. The manufacturers of component parts often realize the end-use of their component, and yet they rarely stress the shock attenuating variations in their several product lines. Instead, they adopt the attitude that the helmet manufacturer is solely responsible for the choice of material since product testing requires a study of the finished product. These component manufacturers should, however, be held accountable if they market materials for helmet production which are so inferior that they will predictably lead to the sale of inferior safety equipment. The extent of a component manufacturer's responsibility will depend upon its knowledge of the end-use, its involvement in component part analysis for impact attenuation, and its participation with the end-use manufacturer in the selection of the component materials.
In today's market place a retailer can choose to sell any helmet available. Often the retailer markets this product without any concern about its design safety. Large discount retailers probably account for the source of the majority of defectively designed (cheap helmets). Cleverly, these retailers choose not to stamp these helmets with any mark which would allow the product to be traced back to the source of the sale.4 Even more reprehensible, retailers hardly ever ask helmet manufacturers for evidence that this vital safety product has, in fact, met any of the more stringent test criteria. Thus, the retailer who fails to research the safety of a helmet it sells remains potentially liable for the catastrophic injuries suffered because of its marketing neglect.
Attorneys representing injured persons and helmet manufacturers alike have often addressed the necessity and adequacy of warnings. Plaintiff's attorneys argue that manufacturers fail to warn of foreseeable risks because of design limitations, and defense attorneys advise their clients to add more and more information to the warning labels to immunize themselves from liability. Yet, each group has totally ignored more basic consumer information. When a consumer buys a safety helmet, he or she has virtually no way to determine the comparative level of protection obtained. Helmets generally comply with one or more safety standards, but there is wide variation in the range of compliance. One helmet model may only marginally comply with a standard (e.g., 350 g's to 395 g's in test scores), while another attenuates almost all of the energy of the test (e.g., 100 g's or less in test scores). The consumer has no way of knowing the margin of safety provided with each model helmet. The margin of compliance is well known to each manufacturer, and this knowledge may well mean the difference between life and death. If the predicate for providing warnings is to convey vital product information to the consumer, then what more vital information can a consumer ask for than notice of the level of safety he or she can expect with a specific helmet model? Before a manufacturer is permitted to defend a case on the basis that sports activities pose so-called unavoidable risks, the consumer should be afforded the opportunity to ameliorate this risk in the selection of suitable designed helmets.
Investigation and Research
It is essential that you develop a methodical approach to the analysis of a potential helmet case. The suggested procedures should certainly be modified to suit counsel's individual preferences and practice with the thought that what is essential to the acquisition of sufficient data to reach an educated judgment about whether an inadequately designed helmet caused, enhanced or failed to minimize injuries.
In any motor vehicle products case it is essential to locate the vehicles (e.g., cars, motorcycles, etc.) and take possession of these items. At the very least, as soon as possible counsel should take possession of your client's motorcycle, or bicycle and helmet. These items should be photographically documented on receipt, by someone other than counsel who can testify to their condition, if necessary. These items should be carefully stored out of the environmental elements and in a secure, tamper free area. If another motor vehicle was involved in the accident, it should be promptly photographed before it is repaired (if it is not repairable then counsel should take possession or at least secure the vehicle until the investigation is completed).
An early site inspection is quite important. After obtaining the police report and available police photographs, counsel should go to the scene and carefully inspection for the marks, gauges, scraps and debris. If any are located then a scene/photographic diagram should be prepared. This diagram, prepared to a scale, should account for the location of all accident marks and identify by photo number the view taken in each photograph. If there are no signs left of the accident, then the next best approach is to arrange for the investigating police officer to meet you at the scene, mark off in fluorescent paint the accident marks and the points where the vehicle and occupant(s) were found. After carefully labeling these items on the road, they should then be photographed. The sooner these activities are accomplished, the more reliable they will be.
The damaged helmet, vehicle or fixed object (e.g., pole, parked car, curb) provide info about the nature of the external loads at work during the accident. This info is necessary in reconstructing occupant movement, vehicle acceleration and helmet performance. Photographs taken by the police in their "uncropped condition" and enlarged for improved analysis will provide contemporaneous info about the condition of the vehicles and occupants.
It is essential that you learn how the helmet was found right after the accident, including how it was positioned on the client's head, the condition of the chin strap, and the tightness of its fit. Tracing who had custody of the helmet is obviously important. Counsel should not attempt to alter the condition of the helmet without having an expert present; this caution is particularly relevant in the inspection of motorcycle helmets. Ordinarily, helmets with crushable liners or glass type shells can be further damaged by efforts to separate these two components unless a helmet expert performs this inspection.
In the inspection of a helmet there is certain basic product info available. Football helmets have manufacturing info stamped on the outside of the shell. The liners usually reference dates of manufacture. Helmets using an air bladder should be checked with a pressure valve to measure the amount of air in the system (photograph this inspection). You should also look for any signs of unusual wear in the liners, such as fraying or air leaks. The inspection of a football helmet can usually be performed without removal of its parts.
On the other hand, a thorough examination of a motorcycle helmet will require the removal of the liner from the shell. Generally, motorcycle helmet manufacturers stamp product identification into on the chin strap and outside of the shell. Most manufacturers press-fit liners into the shell which will permit an inspector to carefully slide the liner out by spreading the shell open (with your hands) and pulling on the liner cover which is glued to the liner. Caution must be taken to avoid local finger pressure on the liner which could produce dents. The shell should be inspected on the outside and inside for impact scrapes or marks, and the outside and inside of the liners should be checked for areas of crush. Photographs and video of all aspects of the inspection should be taken. If there are specific areas of liner crush you should study these in relation to the mating head and shell surface.
It is vital that you acquire rescue records, emergency room records and at least the first five days of hospital records prepared by the nursing staff, radiology department and physicians. The points of significance include observations of external injury to all parts of the body (e.g., lacerations, bruises, abrasions), some of which may not appear for a few days, findings obtained by CAT Scan and MRI studies pertaining to skull or spinal fractures and hemorrhaging in the brain. Surgical records will further detail actual anatomical observations and the steps taken to relieve the pressure on the brain, bleeding, or misalignment of the spine.
The analysis of a head or spinal injury calls into play the study of the victims motion in time--human kinematics. In a football helmet case the game film prepared in a frame by frame view allows the investigator to see the interaction between the helmet and other players. It also permits for an analysis of the velocity of the victim and other players.
Whether the analysis involves a football game or a motorcycle crash, there are some basic facts needed to help understand the victim's movement and the forces imposed upon the victim. Remember, the forced imposed upon the helmeted head are dependent upon his or her size, weight, direction of movement, velocity, age, head position at the moment of impact and the velocity, shape and size of the striking object.
The various factual data, test results, witness statements, photographs and medical records available for use in reconstructing a helmet accident should be viewed as pieces of a jig saw puzzle that must be assembled to provide a carefully documented picture of the interaction between the helmet and the wearer's injury. Once the parts of the puzzle begin to take shape, counsel will be in a better position to study the feasibility of a helmet impact case.
Before undertaking a helmet impact care, counsel must have a design solution for the defective properties of the helmet which either caused or enhanced the wearer's injury or death. Depending upon the nature of the accident, the type of helmet at issue, and the injury, you must be prepared to technically answer the following questions: (1) Was the velocity change (Delta V) survivable in a well designed helmet? (2) Would a well designed helmet have sufficiently attenuated the impact to have reduced the forces below the injury threshold? (3) What were the available design alternatives to the helmet design at issue? These questions must be technically answered before you proceed. These questions require expert analysis from a "materials design" a bio-mechanical study, and a medical review.
In many instances, patent searches and market research will uncover helmet design alternatives. These designs must be studied to confirm their usability either one roadway use or on the sports field. And, counsel must be cautioned that helmet design for motorcycling may not be equally applicable to the football or hockey arena. In many instances, counsel will be able to locate competing helmet brands which provide substantial variation in shock attenuation--certain helmet testing of comparative models may be required.
The more difficult part of the solution is the injury causal analysis. Demonstrating to a jury that a design alternative would have prevented the injury or substantially reduced the level of injury is a tremendous challenge. How you address this task varies with the type of injury. As previously discussed, there is a lot of data on how brain and spinal injury occurs; yet, there is continuing dispute over the threshold for these injuries, as well as the effectiveness of "padding" protection against these injuries. Bio-mechanists and medical specialists must be used to study the injury as a "force effect." That is, the injury must be defined as a product of a certain quantity of force, and then it must be shown that a well designed helmet can sufficiently manage the force. For example, if the accident reconstruction reveals that the helmet wearer was traveling at 10 m.p.h. when he struck another object, thereby generating a contact force of 1000 lbs., which resulted in at least 700 lbs. of force to the spine within 100 milliseconds, then plaintiff's experts can relate this injury to a finite solvable question: Can a carefully designed helmet attenuate a 1000 lbs. of contact force so that the spine experiences substantially less than 700 lbs. of force? This type analysis provides some concrete figures which are not easily disputable.
Legal Theories of Liability
As with any products care, helmet litigation may involve concepts such as strict liability, negligence and failure to warn. Other principles that may apply include negligent misrepresentation and strict liability for misrepresentation.
Because the most important safety purpose of a motorcycle helmet is protecting against head or brain injuries, evidence that a helmet was not designed well enough to accomplish this purpose may result in liability founded upon negligence or strict liability. Because a motorcycle rider may be subjected to serious injury unless the defendant's product is carefully designed, and because the rider's safety depends upon the quality of the helmet worn, the manufacturer is obligated to adopt a design that will produce a safe helmet, and to select materials and parts that will reasonably aid in the protection of motorcycle riders. Additionally, the manufacturer is obliged to make such reasonable inspections and tests during the course of manufacture and after manufacture as are reasonably necessary to secure the production of a safe product. The duty to build a safe helmet does, of course, extend to the manufacturer of the helmet-as a finished product- and the manufacturer of the several component parts (e.g., the shell and the liner). Thus, evidence that a component part was inadequate may lead to recovery against several parties.
Interestingly, the principles of misrepresentation can play a significant role in helmet litigation. Helmets sold in the United States are required to comply with applicable helmet standards. On occasion, helmets include certification labels indicating compliance with these standards, when, in fact, the helmet in question does not meet the standard. This misrepresentation has been either a blatant attempt to fool the consumer, or the result of a quirk in the helmet standards, which provide for the testing of only certain helmet sizes. For instance, most standards require testing of medium-size helmets because that size helmet fits snugly onto the head form used in the test. Other sizes of protective headgear of the same type are automatically approved if the medium size helmet meets the standard. Unfortunately, because different size helmets include different size shells and liners, the performance of these helmets does not always correspond with the performance of medium size helmets. For example, a manufacturer may make a large-size helmet by decreasing the thickness of the liner, or by increasing the size of the shell without increasing the thickness of the liner. Under these circumstances, the large-size helmet provides less protection than the medium-size helmet, and yet, the manufacturer will place a certification label on the product-because the medium size passed the standard. This form of misrepresentation will expose the manufacturer to liability on the basis of either negligence or strict liability.
Defense Considerations - Product Safety Compliance
Helmet manufacturers often defend their product by offering evidence that the product complied with either an industry standard, or a federal minimum standard, or with the so-called state of the art. While courts in a few jurisdictions have ruled that compliance with the state of the art or federal or industry standards is completely irrelevant to a strict liability claim, Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590 (Pa. 1987), courts in most jurisdictions allow this evidence as relevant--although not controlling--on the question of design negligence of defect. 63 AM JUR 2d Products Liability §242(1084). Annotation: Products liability; admissibility of defendant's evidence of industry custom or practice in strict liability action, 47 ALR4th 621, §§3 et seq. It is generally accepted that compliance with a standard may be evidence of due care, but it is not conclusive proof on this issue. Larsen v. General Motors Corp., (1968, CA8 Minn) 391 F2d 495; Dawson v. Chrysler Corp. (1980, CA3 AZ) 630 F2d 950, CCH Prod Liab Rep Paragraph 8766, cert. den. Chrysler Corp. v. Dawson (1981) 450 US 959, 67 L.Ed. 2d 383, 101 S. Ct. 1418. The retort to the defense of compliance with these standards may be so effective that plaintiff's counsel should consider stipulating to it. Once compliance is evidenced, it opens up Pandora's Box to show that the helmet met the least stringent helmet standard (e.g., the federal government standard, the NOSCAE standard, etc.) and that compliance even with this standard was marginal--i.e.., test results within 25% of failure should be deemed marginal because variations in normal quality control will lead to the manufacture of helmets which would have failed to test if all helmets were tested. Likewise, it is relatively easy to show that the margin of safety derived from test results also varies significantly with various helmet models and hat sizes made by the same company. All of these data allow counsel to fairly argue that helmet safety is merely the "luck of the draw."
"Person Oriented" Defense
In addition to the "product-oriented" defenses discussed in §39, there are a variety of "person-oriented" defenses available to the manufacturer in a case involving the impact protection of a helmet. These relatively familiar defenses include lack of proximate causation, misuse or alteration of the product, contributory or comparative negligence, and assumption of risk. Related and somewhat less important "person-oriented" defenses include failure to use a seatbelt, fasten the helmet, use of excessive speed, and intoxication.
The importance of proving proximate causation in a helmet crashworthiness case, as in any other tort action, was mentioned earlier in this article. The requirement of showing proximate causation applies even in a products liability case based on the theory of res ipsa loquitur. Thus, the evidence presented by the plaintiff in a helmet case can be fatally undermined if the defense can show that whatever defect may have existed in the design of the product at issue was not the cause of the plaintiff's injury-a matter that has already been covered in detail in an earlier article.
The defense of product misuse is well laid out in the Model Uniform Product Liability Act, which dates that misuse occurs when the product user does not act in a manner that would be expected of an ordinary, reasonably prudent person who is likely to use the product in the same or similar circumstances. What this means is that a product must be used in a manner that is intended or reasonably foreseeable by the manufacturer or seller. If the defendant in a helmet case can show, by a preponderance of the evidence, that product misuse by the plaintiff was the cause of the plaintiff's harm, the plaintiff's damages are subject to reduction or apportionment to the extent that misuse was responsible for the injury. The subject of how to prove product misuse in a strict products liability case has been dealt with in an earlier article.
Depending on which concept is recognized in the particular jurisdiction, contributory or comparative negligence on the part of a helmet user can affect recovery in a helmet case based on negligence just as it can affect the recovery sought by the plaintiff in other civil actions. In this connection, the test for whether the user's occupant's negligence is sufficient to preclude or diminish recovery is not whether he knew of a particular defect or other dangerous condition, but whether, in the exercise of reasonable care, he should have known of it. Where a design defect if obvious, there can be no recovery for injury caused thereby.
Lastly, the Model Uniform Product Liability Act provides that when the seller of a product proves, by a preponderance of the evidence, that the injured party knew of the product's defective condition, and voluntarily used the product and voluntarily assumed the risk of harm from the product, the claimant's damages are subject to reduction to the extent that the claimant did not act as an ordinary and reasonably prudent person would have acted under the circumstances. Defense counsel should be aware, in this connection, that any evidence tending to show that the injured party was experienced with the particular product, and had had little or no prior difficulty with it, tends to negate any inference that the injured party assumed the risk of injury. In any event, the subject of assumption of risk as it can affect recovery in a strict products liability action has been covered in an earlier article.
Elements of a Damages Checklist
Testimony as to the following elements of damages should be elicited, when applicable, from the plaintiff and his witnesses in a personal injury or death action arising from an accident involving an uncrashworthy automobile:
- Damages recoverable by or on behalf of injured person
- Necessary and reasonable medical expenses
- Actual past expenses for physician, hospital, nursing, and lab fees; medicines; prosthetic devices; etc.
- Anticipated future expenses [69 ALR2d 1261]
- Loss of past and future earnings [15 POF2d 311]
- Actual loss of wages or salary
- Loss of existing vocational skill
- Loss of capacity to earn increased wages [18 ALR3d 88]
- Loss of profits or net income by person engaged in business [45 ALR3d 345]
- Cost of hiring substitute or assistant [37 ALR2d 364]
- Harm from conditions caused by prolonged immobilization, such as thrombophlebitis and pneumonia [39 POF2d 545]
- Pain and suffering from physical injuries [23 POF2d 1]
- Pain and suffering reasonably likely to occur in the future [18 ALR3d 10]
- "Phantom pain" and other subjective pain not readily apparent to lay person [9 POF 103]
- Mental anguish
- Fright and shock
- Anxiety, depression, and other mental suffering or illness [29 POF 529; 30 POF 1; 29 POF2d 571]
- Anxiety as to future disease or condition [50 ALR4th 13]
- Physical injuries caused by mental anguish
- Harm from loss of sleep [28 POF 1]
- Sexual dysfunction [13 ALR4th 183]
- Anosmia (loss of sense of smell) [27 POF2d 361]
- Past and future impairment of ability to enjoy life [24 POF 171; 34 ALR4th 293]
Damages recoverable by heirs or dependents of injured person
- Loss of consortium [30 POF 73; 27 POF2d 393]
- Loss of household services from kill or injured spouse [13 POF 193; 14 POF2d 311; 38 POF2d 195]
- Parents" loss of minor's services
- Loss of financial support from decedent's earnings and other income [13 POF2d 45]
- Loss of parental advice and guidance
- Loss of companionship of decedent
- Mental anguish and grief of survivors
- Loss of prospective inheritance as a result of death of injured person [24 POF2d 211]
- Funeral and burial expenses [3 ALR2d 932]
Additional elements of damages
- Exemplary or punitive damages for malicious or reckless conduct
- Prejudgment interest
- Litigation fees and costs
Regardless of whether the action is based on negligence or on strict liability, recovery in a case involving a helmet is governed by the same measure of damages applicable in other types of tort actions. 63A AM JUR 2d Products Liability §969 (1984). As a rule, recoverable damages include all the natural and proximate consequences of the defendant's wrongful act, such as pain and suffering, medical expenses, the reasonable value of lost time and earning capacity, disability and subsequent aggravations of the injury traceable to the original wrong.
Punitive damages are allowed in products liability cases where the defendant's conduct is found to be reckless and in wanton disregard of possible harm to others; negligence alone, however, will not support such an award. In considering the propriety of an award of punitive damages in a products liability case, the courts have considered such factors as the economic benefit to the defendant's conduct to himself, the defendant's failure to comply with industry standards, any fraud committed by the defendant, and, most crucially, the defendant's conscious knowledge of the danger to the product user.
Caution: Contractual provisions limiting a seller's liability may affect the damages recoverable in a helmet or other products liability case, at least where the provisions meet the tests of legality embodied in the Uniform Commercial Code.3A AM JUR 2d, Products Liability §976 (1984). In addition to its provisions allowing the exclusion or modification of warranties under certain conditions, the UCC provides that a sales agreement may specify remedies in addition to or in lieu of those set forth in the code and may limit or alter the measure of damages recoverable under the code, as by limiting the buyer's remedies to return of the goods and repayment of the purchase price. Of course, a seller's right to modify or limit the measure of damages is subject to the important qualification that no modification or limitation is valid if it is unconscionable, and the code specifically provides that any attempt to limit consequential damages for injury to the person in the case of consumer goods-goods bought primarily for personal, family or household purposes-is prima facie unconscionable.