Child restraint litigation: compensating the littlest victims.

The death of a child is always tragic. It is even more so when it was the needless result of a defective product. Unfortunately, many families suffer these tragedies when their young children are injured or killed in car crashes while riding in a defectively designed child restraint device. A number of these families turn to the civil justice system for redress.

Some attorneys evaluating cases in which children were injured or killed in car collisions don't realize that the restraint is the cause because they automatically question the car's crashworthiness or assume that something else caused the child's injuries or death. The injuries often provide a major clue. When the child has been fatally or severely injured, but the adults - who were protected by seat belts - walked away or sustained no permanent injuries, this should be a hint to investigate whether the child restraint was defective.

Whether a child restraint can be considered not crashworthy or defective depends to a large degree on the type of crash: rear-end, frontal, or side-impact collision. The direction of force and speed change of the vehicle will cause the child and restraint to move. The degree to which the restraint prevents or reduces these movements is directly related to the severity of the injury.

The majority of severe head injuries occur because a poorly designed child restraint allows excessive head movement. The child's head can hit the sides of the restraint or the car's interior, either of which may be inadequately padded.

In addition to poor structural design, the restraint may have a defectively designed buckle, which can cause the child to be ejected from the seat and killed or injured. Knowing the direction of the impact will enable the investigator to determine if the injury is consistent with the suspected defect.

Many injuries have occurred in compact cars because the amount of head excursion, or forward movement, allowed by Federal Motor Vehicle Safety, Standard (FMVSS) 213 exceeds the space between the back seat and the front seat or the front seat and the dashboard, the potential impact points that produce high-acceleration head injuries. Manufacturers of child restraints are or should be aware of the variety of cars in which the restraints will be placed and should specify the amount of space needed for the restraint to operate satisfactorily.

A defect may be suspected in a restraint that has multiple positions (upright, reclining, and semireclining) because the manufacturer may not have tested the prototype in all positions. Also, the manufacturer may have failed to notify consumers that the reclining or semireclining position can allow excessive head excursion and/or occupant ejection.

Weak federal regulation of child restraints has done little to protect children from these hazards. In 1970, the National Highway Traffic Safe Administration (NHTSA) issued a standard that established a static test for child restraint devices sold in the United States. It required manufacturers to test how their seats withstood the stress of a 1,000-pound pull. This standard was promulgated to eliminates restraints that hooked over automobile seats and were not secure in accidents.

In 1974, a proposed change to the standard would have required manufacturers to use dynamic load tests rather than static load tests. Dynamic load tests more accurately evaluate the crashworthiness of child restraint devices. When the change was proposed, technology was available for dynamic testing, and NHTSA had spent a considerable amount of grant money on vehicle and occupant dynamic tests. The agency knew that sooner or later consumer groups would start to ask why manufacturers were not required to conduct their own dynamic tests.

Under the standard's 1974 proposed edition, manufacturers would have been required to evaluate the restraints' performance in dynamic sled tests using anthropomorphic test dummies in lateral, frontal, rear-end, and rollover collisions. In 1978, the proposal was narrowed to require dynamic testing in front-impact crashes only, and the excursion limits were relaxed.

Finally, in 1981, FMVSS 213 was changed to require dynamic load testing.(1) This was a self-certifying standard, meaning that the manufacturers were only required to certify to NHTSA that their child restraints met the standard's performance criteria.

The manufacturers united through their trade association, the Juvenile Products Manufacturers Association, to weaken the dynamic-testing standard proposed in 1974. This resulted in a U.S. safety standard that is less rigorous than those in Europe, Australia, and Canada. At the least, the standard should be upgraded to require side-impact testing. Daily, U.S. children are subjected to injury and death because manufacturers are permitted to produce a product that is not as safe as its European, Australian, and Canadian counterparts.

An understanding of the standard's development is important to an attorney considering a products liability action alleging a defective child restraint because the manufacturers have developed defenses based on meeting this minimum standard. Child restraint devices have not been tested for most real world accidents.

A word of caution. An attorney who decides to proceed with a child restraint case will soon discover that this litigation is extremely time-consuming and expensive. Many medical and engineering experts are required. Depending on whether the case involves a design or manufacturing defect, a slow-motion film of a dynamic sled test may be necessary to show the defect that produced the injury. Multiple defects may have caused the injury. The attorney must weigh these substantial costs against the nature and extent of the child's injury.

Assuming the attorney, and client conclude the claim is viable, counsel should consider the following issues in preparing the case.

History of the Restraint

The attorney must obtain a complete and detailed history of the child restraint from the parents. Counsel must determined when and from whom the parents bought the restraint. A copy of the sales receipt should be obtained because the retailer can be liable for injuries caused by products that have been returned and resold without certain injury-preventing accessories.

The lawyer also must find out whether people other than the parents have used the restraint. If so, those people must be interviewed about the condition of the restraint, how they used it, and whether it was missing any accessories.

The lawyer should examine the child restraint carefully. Federal regulations require that a child restraint be permanently labeled with the month and year of manufacture.(2) The date will establish which edition of FMVSS 213 applies.

Counsel should take extensive photographs of the restraint, especially noting any deformations or damage m the structure, as soon as possible. Care should be taken to avoid moving the harness straps, if there are any, from the original position, which may provide physical evidence of how the restraint was used. The lawyer must determine who removed the restraint from the vehicle after the collision and obtain written statements from that person concerning the position of the restraint in the vehicle.

If possible, counsel should avoid obtaining custody of the restraint. Instead, it would be preferable to have an expert or even a private investigator retain it.

Parental Use and Misuse

Many injuries are caused by misuse of child restraints. NHTSA is currently forming a panel of experts to recommend ways that restraints can be made easier to use and install.

The attorney who is investigating a child restraint device case must spend a considerable amount of time discussing with the parents their use of restraints, not only for the injured child but also for other children in the family. At trial, defense counsel mill try to show that the parents were not safety-conscious and either failed to use the restraints or used them improperly.

To rebut this argument, the parents' lawyer must determine when they started using child restraints, the specific types of restraints they used, and the reasons why they selected each restraint. It is important to find out if the hospital where the child was born provided child restraint education. Some hospitals provide restraints on loan, and hospital staff may have used cleaners that removed instruction labels. If so, the hospital may be liable.

The attorney should also try to show that whenever the family used the car, the child was placed in restraints. Ideally, parents should be able to produce several witnesses who can verify that this was their habit.

It is also important to show that the parents were responsible not only about the safety of their child, but also about their own safety and the safety of other passengers. Counsel should discuss with them their use of seat belts and ask whether they required all passengers in the car to buckle up.

One caveat: The attorney needs to know whether the state m which the family resides has a primary or secondary seat belt law. A primary law requires seat belt use in the front seat only. A secondary law requires use in both the front and the back seats. Unrestrained occupants can exert a large amount of force in a collision, and, depending on whether the law is primary or secondary, the fact that there were unrestrained passengers in the vehicle can become a defense. A manufacturer may argue that the injury occurred because the child was struck by an unrestrained passenger.

After discussing with the parents the family's general habits with regard to seat belt and child restraint use, the lawyer must find out specifically how the child restraint was being used at the time of the collision. If possible, the attorney should obtain a copy of the instruction pamphlet that accompanied the restraint, keeping in mind that these booklets are often not available if the parents bought the restraint secondhand. Some instruction pamphlets have printing errors or omissions or misleading illustrations.

Counsel should study the pamphlet and discuss with the parents their understanding of how the restraint was to be secured with the car's seat belts. Next, the lawyer should determine how the restraint was threaded with the seat belts at the time of the collision.

In fact, the parents should demonstrate the belting procedure for the attorney before they are deposed. Defense counsel will ask them to do this both at deposition and at trial. If the clients are not prepared for this, it can be a frightening experience.

The parents' attorney must also know the height and weight of the child at the time of the collision to be sure that the child restraint was in the proper position - generally, facing backward for smaller children and forward for larger children. If the child was facing the wrong direction, inappropriate forces exerted on the child by the restraint itself can cause injury. Defense counsel will often suggest that the child was too small to be facing forward. The lawyer should obtain medical records showing the child's exact height and weight at the time of the collision, bearing in mind that hospital records usually show a lower weight after a car crash because of loss of body fluids.

Often what the parents did is the manufacturer's primary defense. However, most mistakes parents make are foreseeable and are often taken into account when the restraint is being designed. Belting errors, for example, constitute the most common type of misuse recognized by manufacturers. In most cases, the manufacturer simply chose to make the restraint easier to use or cheaper to manufacture rather than prevent foreseeable misuse.

Crash Investigation

Physical evidence. If possible, both vehicles in the collision should be secured. If this is impossible, the lawyer at least should try to retain the victim's vehicle and take numerous photographs of the other vehicle. The accident reconstructionist will need photos of both vehicles taken from various angles to estimate the respective forces and energy involved in the collision.

Also, attorneys and their investigators often do not recognize the importance of even minute strike marks inside the car. Sometimes even a small dent will help the expert establish the child's movements during the collision and the point of the child's impact inside the vehicle.

Another reason to preserve the victim's car is to use it for demonstrative purposes in a videotaped deposition.

Statements from eyewitnesses. It is essential to obtain written statements from all eyewitnesses to the crash. If possible, a witness statement should include the estimated speed and positions of both vehicles and the positions and restraint use of passengers.

Often a bystander is the first person at the scene. The lawyer should obtain a detailed statement from this witness regarding the exact location of the child restraint in the car and the position of the child after impact. For example, did the witness notice whether the child restraint was still belted to the seat of the car? Was the child still partially restrained after the collision, or had the child been ejected from the restraint? Were there obvious signs of injury to the child? If so, what parts of the anatomy appeared to be injured? This information will assist the biomechanical expert in analyzing the kinematics of the crash.

Statements from medical and rescue personnel. While a bystander may be the first witness on the scene, it is likely that the first trained witnesses to arrive will be paramedic or fire-rescue personnel. Since these people usually remove the injured child from the vehicle, the attorney should obtain detailed statements from them as well.

For instance, counsel should find out whether the child and the restraint were removed from the car together or whether the child was removed from the restraint first. If the child was still in the restraint, the attorney should ask whether the emergency personnel found the child partially ejected (out of harness straps but in the restraint).

Counsel should discuss with the rescue workers their observations of the injuries. This information is important for two reasons: (1) it helps establish the extent of the victim's suffering, and (2) any abrasions or marks on the child may help determine where the child's body struck the interior of the car.

Help from Experts

Attorneys who represent children and their families in these cases will need to enlist the help of a variety of experts, including the following:

Accident reconstructionist. It is necessary to reconstruct the car crash. The defense often argues that the collision was not survivable or that the child's injuries would have occurred regardless of whether the child was properly restrained. The reconstructionist can help negate this defense. The fact that other occupants in the car survived the crash is the plaintiff's strongest argument.

The accident reconstructionist provides the foundation for the biomechanical expert to testify regarding the direction of the forces in the collision and the change in the vehicle's velocity. The reconstructionist usually does this by analyzing the crush each vehicle experienced at impact, speed at the time of collision, crash scene data, and crush properties of the vehicles.

The attorney should review the reconstructionist's background thoroughly. Experts who claim to be reconstructionist's often do not have the engineering experience necessary to provide a proper foundation for the biomechanical expert's opinion.

Biomechanical expert. This expert will help show that defects in the restraint caused the child's injuries. Using the foundation provided by the accident reconstructionist and medical information the attorney gathered, the biomechanical expert should be able to provide an analysis of the kinematics of the child and the restraint during the collision. This expert should also be able to testify as to whether the accident was survivable. The expert's conclusion should include an opinion on whether the injuries would have been avoided or mitigated if the restraint had performed properly.

To form these opinions, the expert will need to examine the child restraint and the vehicle. Depending on the defect, the expert might suggest performing a dynamic sled test to demonstrate the physical principles of force involved in the collision and the kinematics of the child's body. While sled testing is expensive, it answers questions about restraint performance that the FMVSS 213 protocol does not. It also gives jurors a better understanding of how the injuries were sustained. Caveat: The attorney must find out whether tests of this kind are admissible before undertaking this expense.

Neurologist. Along with the biomechanical expert, the neurologist (often the treating pediatric neurologist) will help establish causation by determining the nature of the injury.

Experts on damages. Since these cases often involve head injuries, counsel man, presume that the child's pain and suffering are self-evident. This is a mistake. The statements of eyewitnesses and medical personnel taken by the attorney during initial investigation arc crucial in establishing these damages.

However, since many states have placed a cap on noneconomic damages, it is more important than ever to retain experts who can establish the economic loss to the child throughout his or her lifetime. Depending on the type of injury, the attorney should consider retaining a neuropsychologist, a pediatric neurologist, or a pediatric neurosurgeon to explain the injury and its permanence. Depending on the child's age, a neuropsychologist can use testing to show the victim's intellectual and physical dysfunctions resulting from the injury.

One common defense tactic to try, to limit economic damages is to produce the child's birth or pediatric records to prove that the child had deficits before the injury. The attorney should review all the child's records with the medical experts so that the medical history can be explained.

If the child is permanently impaired, the lawyer should consider retaining a life care specialist. This expert can analyze the long-term life care needs and costs that the victim can reasonably be expected to incur.

A rehabilitation expert cm provide the cost basis for special education classes or tutoring the child may need. This expert should be thoroughly versed in the federal and state programs available and should be able to discuss why these benefits may or may not be suitable for the child.

After the life care specialist and rehabilitation expert provide a foundation for these costs, the attorney should consult with an economist who can project these expenses over the child's anticipated lifetime, and then reduce the amount to present value. In a severe head injury case, the defense often posits that the child does not have the normal life expectancy because of the injuries sustained in the accident. The treating physicians, especially the neurosurgeon, should be able to testify whether the injuries have reduced the child's life expectancy.

Other Issues

Medicaid. Families of these catastophically injured children usually cannot afford to pay for their medical care. Until they receive a settlement or judgment as a result of litigation, they often must rely on Medicaid to help pay their medical bills. The attorney must be aware of the federal statutory obligation to notify, the federal Medicaid office or state department of human services of any settlement.(3) The lawyer must also understand that Medicaid is entitled to full subrogation even though the plaintiffs may have had to expend substantial resources in bringing suit. Attorney who do not handle these issues properly may face liability claims.

Preemption. In the majority of these cases, the defense moves for summary judgment based on preemption.(4) Defendants argue that FMVSS 213 preempts all child restraint litigation. But this regulation is a performance standard, not a design standard; therefore, child restraint cases that involve design defects - and most do - should not be preempted by the regulation.(5) To avoid summary judgment, the attorney must carefully analyze the case with the experts to ensure that the defect involved is a design defect.

This litigation is rewarding. It compensates children injured by defective restraints and motivates manufacturers to improve the safety of their products. However, the litigation is expensive, and the claim will be vigorously defended. Counsel should be cautious in accepting this type of case and, after accepting one, be prepared to investigate the facts quickly and thoroughly.

Notes

(1) 49 C.F.R. [sections]571.213 s6.1.1.1.ci (1993). (2) 49 C.F.R. [sections]571.213 s5.52(c) (1993). (3) 42 U.S.C. [sections]1395by2B (1988). (4) Welsh v. Century Prods., 745 F. Supp. 313 (D. Md. 1990). (5) Id.