June 2007

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Expert’s Opinion Excluded by Lack of Testing, Previous Litigation Work
An injured worker's expert was properly excluded because his testimony concerning the use of interlocks on a truck-mounted crane were not tested sufficiently to make his testimony reliable, according to the U.S. Court of Appeals for the Sixth Circuit. The worker was injured when the truck-mounted crane tipped over onto him after it was activated without one of its outriggers extended. The expert testified that the crane was defective because it did not include an interlock mechanism on the outriggers which would have prevented operation of the crane without all the outriggers touching the ground. The expert sought to establish the feasibility of the interlock design by citing its use on an older and smaller truck-mounted crane and its current use on similar truck-mounted cranes made by the manufacturer's competitors, as well as offering a schematic for how the system could be integrated into the manufacturer's crane. The court found that the worker's expert should have conducted at least some testing to demonstrate the feasibility of his proposed design, discounting its use on smaller crane's because of the difference in the cranes' sizes and lifting capacities. Although the court acknowledged that the expert was not required to construct a full-fledged prototype, it reasoned that at least some testing of feasibility needed to be performed. In addition, the court dismissed the use of interlocking outriggers by some of the manufacturer's competitors as proof of feasibility because those systems were not in use at the time the crane was designed or manufactured. Lastly, the court noted the expert's experience and long history as a litigation expert weighed against the reliability of his testimony. (Johnson v. Manitowoc Boom Trucks, Inc., 6th Cir., CCH Products Liability Reporter ¶17,744).

Risk Assumed in Leaving Farm Machinery On During Inspection
AA farm worker's understanding of the danger posed by a mule boy supported the conclusion that he assumed the risk of injury when inspecting the machine, according to the Supreme Court of Mississippi. The worker lost three fingers in the rotating chains of a mule boy when he lost his footing and slipped while attempting to determine the cause of an unusual noise that was coming from the machine. The worker admitted that he failed to turn off the machine before inspecting it, appreciated the danger posed by the machine, and testified that the machine's moving chains could clearly be seen while the machine was running. The court held that the worker's own testimony revealed that he understood and appreciated the danger and proceeded to approach the mule boy without first turning off the machine. In addition, the court reasoned that the open and obvious nature of the machine's moving chains supported the conclusion that the worker was aware of the dangerous situation and assumed the risk that he could be injured. (Green v. Allendale Planting Co., Miss. S.Ct., CCH Products Liability Reporter ¶17,749).

Public Meeting, Comments Sought on School Bus Safety
A public meeting to bring together state and local government policymakers, school bus and seat manufacturers, and public interest groups to discuss the safety, policy and economic issues associated with the use of seat belts in large school buses is scheduled for July 11, 2007, from 8:30 a.m. to 4:30 p.m. at L'Enfant Plaza Hotel, 480 L'Enfant Plaza, S.W., Washington, DC. NHTSA established federal motor vehicle safety standards to increase the strength of school buses and to improve occupant protection in response to Congress's School Bus Safety Amendments of 1974. Three standards addressing rollover protection, body joint strength, and passenger seating and crash protection are unique to school buses, and six other standards have additional requirements specifically providing for the protection of school bus passengers. Other standards concerning brakes, tires, and fuel system integrity were promulgated to ensure that school buses meet rigorous safety requirements for avoiding a crash in the first place, or for enhancing survivability in a crash. Compartmentalization, the predominant means of occupant protection for large school buses under current regulations, protects occupants by using strong, closely spaced seats equipped with high, absorbing seat backs, and provides passive protection without the need for passengers to take any action such as buckling a seat belt. Compartmentalization has effectively prevented serious injuries and fatalities for school aged passengers. Although NHTSA considered the issue of requiring seat belts on large school buses, the agency ultimately deciding not to require safety belts because compartmentalization provided effective safety protection for school children. After conducting simulations of a severe frontal impact crash, NHTSA concluded that adding lap belts on large school buses might have little, if any, benefit in reducing serious to fatal injuries resulting from severe frontal crashes, and might actually increase the potential risk for head injury. Contrary to the agency's conclusion, however, lap belts have been in use on large school buses for more than 30 years with no serious injuries resulting from the use of the seat belt restraint systems documented. The agency has indicated that it will consider changes to the standard involving the use of lap and shoulder restraints, as opposed to lap restraints only, standardized test procedures for lap and shoulder restraints, and higher seat backs. (CCH Consumer Product Safety Guide ¶56,124.)

NHTSA Will Not Reconsider Truck, Bus Safety Requirements
NHTSA denied a petition by the National Truck Equipment Association for reconsideration of its August 11, 2003 final rule [CCH CONSUMER PRODUCT SAFETY GUIDE ¶41,864] that established braking-in-a-curve performance requirements for trucks and buses. The petitioners stated that compliance with the requirement was not practicable for small manufacturers. After reviewing the data, NHTSA determined that final stage manufacturers can alter vehicles to comply with the brake-in-a-curve requirements. The agency also reconsidered the scope or relief available under the final rule, and concluded that because new streamlined temporary exemption procedures will be available for test requirements, relief would be available if necessary and appropriate. (CCH Consumer Product Safety Guide ¶56,128.)

Extension Sought for Brake Fluids Information Collection
To provide continued enforcement of the labeling requirements for motor vehicle brake fluid and hydraulic mineral oil containers specified in FMVSS No. 116, "Motor Vehicle Brake Fluids," NHTSA has requested extension of a currently approved information collection. FMVSS No. 116 [CCH CONSUMER PRODUCTS SAFETY GUIDE ¶30,668] specifies performance and design requirements for motor vehicle brake fluids and hydraulic system mineral oils, including labeling requirements for manufacturers and packagers of brake fluids and packagers of hydraulic system mineral oils. The label on a container of motor vehicle brake fluid or hydraulic system mineral oil must be permanently attached, clearly state the contents of the container, and include a DOT symbol indicating that the contents of the container meet the requirements of FMVSS No. 116. Because improper use, storage, or disposal of motor vehicle brake fluids represents a significant safety hazard for vehicle operators, for the equipment in which the fluids are used, and for the environment, the label is necessary to help ensure that these fluids are used only for intended purposes, and that empty containers are properly disposed of. The agency has invited comments on whether the proposed collection of information is necessary for the proper performance of the functions of the department, including whether the information will have practical utility, whether the accuracy of the department's estimate of the burden of the proposed information collection, how to enhance the quality, utility and clarity of the information to be collected, and how to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Comments should be received before June 29, 2007. (CCH Consumer Product Safety Guide ¶56,117)

Information Collection Requested for Bicycle Helmets
A request to extend the collection of information under the safety standard for bicycle helmets, 16 CFR Part 1203 [CCH CONSUMER PRODUCTS SAFETY GUIDE ¶20,220], for a period of three years was submitted by the CPSC. The regulations establish testing and recordkeeping requirements for manufacturers and importers of bicycle helmets subject to the standard. Congress directed the Commission, under the "Children's Bicycle Helmet Safety Act of 1994," to issue a final standard applicable to bicycle helmets to replace several existing voluntary standards with a single uniform standard with provisions to protect against the risk of helmets coming off the heads of bicycle riders, to address the risk of injury to children, and to address other issues as appropriate. The bicycle helmet standard, which was issued by CPSC in 1998, requires all bicycle helmets manufactured after March 10, 1999, to meet impact-attenuation and other requirements. The standard also contains testing and recordkeeping requirements to ensure that bicycle helmets meet the standard's requirements. Manufacturers, importers, and private labelers of bicycle helmets subject to the standard are required by the standard's certification regulations to perform tests to demonstrate that the helmets meet the requirements of the standard, to maintain records of the tests, and to affix permanent labels to the helmets stating that the helmet complies with the applicable standard. The agency uses the information collected from manufacturers, importers, and private labelers of bicycle helmets to help protect the public from risks of injury or death due to head injury associated with bicycle riding by determining whether bicycle helmets subject to the standard comply with all applicable requirements, and to obtain corrective actions if bicycle helmets fail to comply with the standard and thereby creating a substantial risk of injury to the public. The previous extension of approval will expire on October 31, 2007. Comments should be submitted by July 6, 2007. (CCH Consumer Product Safety Guide ¶56,122)

Public Interest Group Failed to Show Standing in NHTSA Action
A nonprofit public interest organization was required to file additional support to establish standing to sue the National Highway Traffic Safety Administration for alleged unlawful under-regulation of motor vehicle manufacturers, according to the District of Columbia Court of Appeals. The organization, along with a group of tire manufacturers and the Tire Industry Association, petitioned for review of Federal Motor Vehicle Safety Standard (FMVSS) No. 138, “Tire Pressure Monitoring Systems.”The group of tire manufacturers and retailers also sought review of FMVSS No. 110, "Selection of tires and rims for motor vehicles with GVWR of 4,536 kilograms (10,000 pounds) or less."

Standing: FMVSS No. 138 requires motor vehicle manufacturers to install tire pressure monitors that alert a driver if a tire becomes significantly under inflated. The standard requires that the monitors work with the vehicle’s first set of tires, but does not require the monitor to work with replacement tires. The standard also allows for a 20-minute delay between the time a tire becomes significantly under-inflated and the activation of a warning light. The injury alleged by the public interest organization to confer standing was based on increased risk of harm to its members who drive or ride in motor vehicles, that some of the organization's members would be involved in car accidents that could have been avoided with greater regulation. The court found that injuries from car accidents, such as death, physical injury and property damage, are concrete, and because the injuries a person suffers from a car accident are personal, distinct, and differentiated, such injuries also are particularized. For purposes of standing, however, an injury must also be actual or imminent. Allegations of possible future injury are more remote and speculative than actual or imminent, and are problematic in terms of the imminence requirement. The court noted, however, that the injury-in-fact requirement for standing can be satisfied in increased-risk-of-harm cases if an agency’s action subjected a person to increased risk of harm that was substantial, and the ultimate risk of harm also was substantial. The court postponed its decision pending the organization’s supplemental submissions to show whether the increased risk of harm makes injury to its members sufficiently imminent for to satisfy the requirements for standing.

Jurisdiction: The court did not have jurisdiction to review the decision by NHTSA not to initiate rulemaking proceedings concerning FMVSS No. 110. The tire manufacturers and retailers sought to have the agency amend the standard, which governs vehicle manufacturers’ recommended tire pressure (placard pressure), to set placard pressure high enough that a drop in pressure sufficient to trigger a tire pressure warning, in accordance with FMVSS No. 138, would leave enough remaining air pressure that the tires would still be within their maximum load bearing range, thereby reducing the petitioners’ exposure to warranty claims and products liability suits based on tire inflation-related accidents. When NHTSA denied the petition for rulemaking, the tire industry petitioners filed for review of the agency’s decision in the District of Columbia Court of Appeals. Initial review of agency decisions, the court stated, belongs to the district court, unless a direct-review statute gives subject matter jurisdiction to the court of appeals. The petitioners relied on a statute (49 U.S.C. §30161(a); CCH CONSUMER PRODUCT SAFETY GUIDE ¶10,490) authorizing direct review in the court of appeals for a person injured by an agency order that prescribes a motor vehicle safety standard. Here, the agency did not prescribe a safety standard but, rather, declined to amend an existing standard. The court of appeals, therefore, lacked subject matter jurisdiction to review the agency’s decision. The court also held that there was no ambiguity in the statute to allow for a construction favoring the petitioners, and that the All Writs Act, which authorizes the court to compel agency action, was not applicable because the case involved no unreasonable delay and the agency’s decision did not interfere with the court’s jurisdiction. The petition for review of NHTSA’s decision, therefore, was dismissed. (Public Citizen, Inc. v. National Highway Traffic Safety Administration, D.C. Cir., CCH Consumer Product Safety Guide ¶75,748)

Vehicle Safety Test Results Held Inadmissible
Expert testimony and evidence offered by a driver who was injured when the vehicle he was driving left the road and rolled over was inadmissible, according to a federal court in Missouri. Experts retained by the driver conducted roof strength and rollover tests that were inconsistent with the tests prescribed by federal motor vehicle safety standards. The court found that the experts' tests were unreliable, were based on arbitrary parameters, had not been validated or subjected to meaningful peer review, and were not generally accepted by the automotive industry. The vehicle manufacturer’s motion to exclude the test results and the testimony of the experts, therefore, was granted. (Schwab v. Nissan North America, Inc., E.D. Mo., CCH Consumer Product Safety Guide ¶75,749)

Driver Failed to Show Causation Between Defect and Injury
A manufacturer was not liable for damages to the purchaser of a vehicle with malfunctioning windshield wipers, a federal court in Missouri has decided. General Motors was aware of a malfunction involving the windshield wiper assembly at the time the vehicle was sold, but did not inform the purchaser of the defect. A subsequent investigation by the National Highway Traffic Safety Administration into the failure of the windshield wiper assemblies used in certain GM vehicles prompted a limited recall of those vehicles. Out-of-warranty vehicles that were equipped with the same windshield wiper assemblies, however, were not included in the recall. The owners of the subject vehicle, which was out of warranty and, therefore, not included in the recall, had to pay to replace the component when it failed. Because the owners provided no evidence that the defect known to GM was the cause of the wiper malfunction in their vehicle, the court granted summary judgment in favor of the manufacturer. (Owen v. General Motors, W.D. Mo., CCH Consumer Product Safety Guide ¶75,750)

Amusement Park Safety Reforms Urged
As Americans start heading to amusement parks across the country now that warmer weather has arrived, a Massachusetts congressman called on his colleagues to pass stricter safety regulations governing amusement park rides. Referring to recent amusement park accidents in Ohio and Arkansas, Rep. Edward J. Markey (D-Mass.) said, “These two accidents highlight the need for federal regulation by the Consumer Product Safety Commission at fixed-site amusement parks. Today, CPSC does not have the authority to go in after accidents like these, inspect these rides and find out what went wrong in order to ensure that similar failures don't occur again at these parks or at others like them.” According to Markey, the CPSC only has regulatory authority under current law over mobile, or carnival, amusement park rides, but not over fixed-site rides, such as those found at theme parks. A bill Markey introduced on May 15, the National Amusement Park Ride Safety Act (H.R. 2320), would restore CPSC’s authority over fixed-site amusement park rides, and would also authorize appropriations of $500,000 per fiscal year to cover these additional responsibilities. Markey said that the CPSC had regulatory power over fixed-site rides until 1981, when the amusement park industry “carv(ed) out a special-interest political exemption in the law—the so-called Roller Coaster Loophole. It is time to put the safety of our children first,” he said. “It is time to close the Roller Coaster Loophole.” Six Democratic co-sponsors joined Markey in introducing the safety legislation. Since 1987, sixty four people have died on amusement park rides—with more than two thirds of these fatalities occurring on fixed-site rides, at theme parks. In addition, government records indicate that, since 1996, patrons on unregulated, fixed-site amusement park rides have had a greater chance of showing up injured at hospital emergency rooms than have patrons of mobile, carnival rides. “It is simply inexcusable that when a loved one dies or is seriously injured on these rides,” Rep. Markey said, “there is no system in place to ensure that the ride is investigated, the causes determined, and the flaws fixed, not just on that ride, but on every similar ride in every other state. The reason this system does not exist is the Roller Coaster Loophole.” (Lawrence Hartmann, CCH Washington News)