Conspiracy of silence hid seat-back hazards: collapsing seat backs were a dangerous and outdated design, and GM knew it. Internal documents reveal why the automaker took so long to come up with a safer seat.

In 1999, Maria Allen was driving to work near Portland, Maine, when she lost control of her 1994 Chevrolet Lumina van on a patch of ice. The van slid off the road and struck a rock at the right rear quarter-panel and tire.

At the moment of impact, Allen's seat back collapsed and twisted inboard. Even though she was wearing a seat belt, Allen was thrown violently rearward and hit her head on the right side of the car as it moved inward. She suffered a huge fracture on the right side of her head and a large subdural hematoma with a midline shift of the brain.

After a long and intensive hospitalization, Allen returned home to her family, but her extensive brain injury left her incapable of caring for herself or returning to her life as she knew it before the accident.

Allen sued the automaker, General Motors. Company documents admitted into evidence at trial demonstrated how GM ignored the safety of its customers to prevent the disclosure of a well-known, long-term design flaw.

The story goes back decades. In the late 1980s and early 1990s, GM engineers renewed a 20-year-old internal examination of the safety of "yielding" front-seat backs designed to collapse within 100 milliseconds in rear-end or angled rear-end collisions at moderate speed.

Documents revealed that the automaker was well aware that the collapse of front seats under ordinary rear-end collisions at less than 20 mph would cause the seat's occupants--even when belted--to ramp up and out of the seats and strike either the occupants sitting behind them or some portion of the rear of the car. As early as the 1960s, GM engineers wrote that risks included the driver's loss of control of the vehicle, head and neck injury to front-seat occupants, and injury to back-seat occupants. (1)

In 1966, engineers for Oldsmobile--a GM subsidiary--found that survival depended on seat backs supporting passengers and remaining upright in rear-end collisions. (2) Researchers outside the corporation echoed these conclusions.

However, other GM engineers voiced concerns that stiffer seats--which at the time did not include head rests--would lead to an increase in connective-tissue neck injuries caused by whiplash. These engineers believed that because most rear-end collisions involve low-speed impacts, the strengthening of seat backs to prevent "controlled collapse" would dramatically increase the number of whiplash neck injuries.

It was the latter philosophy that prevailed through the 1980s. These researchers apparently believed that because connective-tissue injuries occurred more frequently than more serious injuries in rear-end crashes, they warranted more attention.

The U.S. manufacturers, including General Motors, Ford Motor Co., and Chrysler Corp., rationalized that frontseat back collapse in rear-end crash tests did not produce any significant differential motion between the dummy's head and neck, and therefore posed less risk of connective-tissue injury.

To reach this conclusion, these engineers had to accept the premise that when the seat back collapsed rearward and caused the dummy's upper torso, head, and neck to move rearward in concert, the kinematics were less dangerous than if the seat back remained upright and the dummy's head moved rearward over the top of the low seat back. This premise gave little weight to the danger of causing the occupant to be thrown into the rear seat with his or her head and neck in alignment. (3)

In 1972, scientists at the University of Michigan concluded that the potential tot injury in rear-end crashes could be limited if the following were minimized:

* head displacement, rotation, and acceleration

* differential motion between the head and neck

* occupant ramping up the seat back

* occupant rebounding. (4)

Nevertheless, the auto industry continued to design seats that collapsed when the speed in a real-world rear-impact collision exceeded a barrier-equivalent velocity of 15 mph. (The barrier-equivalent velocity is the speed at which the real-world car would have to strike a rigid barrier at the same angle of impact In sustain the same damage.)

The weakness of these seats prompted Joan Claybrook, then head of the National Highway Traffic Safety Administration (NHTSA), to write to every American auto manufacturer in 1980, warning that "the crash tests of our New Car Assessment Program have revealed a number of seat-track and seat-back failures. The automakers should review their designs to ensure that seats do not Pail catastrophically in crashes." (5)

A year later, a research scientist at General Motors conducted sled tests and wrote a research memorandum about the influence of the seat-back angle on occupant dynamics in rear-end impacts. (6) He reported that at speeds above 15 mph, GM seat backs deflect more than 60 degrees, causing enough acceleration to propel the dummy up the seat back, risking secondary impact of the dummy with the rear of the vehicle's interior. He warned:

   Although some of the early studies showed
   that a yielding seat back was effective in
   improving occupant protection and thai a
   yielding seat back was beneficial in high-severity
   impacts, more recent tests have
   shown that there is no obvious difference in
   occupant dynamic with the yielding seatback
   structure. Most recently, a matched
   comparison of rigid and deformable seat
   backs showed that the incidence of neck
   injury to cadaver specimen was similar. (7)

In 1989, two automotive researchers--unaffiliated with General Motors--petitioned NHTSA, requesting that Federal Motor Vehicle Satiety Standard (FMVSS) 907 be modified to require significantly stronger seat backs in an effort to reduce the risk of catastrophic harm from seat-back collapse. (8)

One year later, the GM research scientist who had warned about the seat backs nearly a decade earlier issued yet another warning after he concluded that seat-back yielding in real-end collisions could cause occupants to slide out from under the lap-shoulder belt system in a crash. By this time, the outside world was starting to take notice of the dangers associated with collapsing seat backs.

GM's studies

Over the next few years, committees within General Motors began several separate studies examining the effect of allowing seat backs to yield in moderate-speed, rear-end crashes. In one study, a GM research scientist teamed with a seat engineer to develop and conduct a variety of quasi-static and dynamic tests to determine the potential benefits and risks of current seat-back strength and a seat-back system with an alternative design.

Another analysis focused on pending lawsuits against GM involving serious injuries or fatalities due In seat-back collapse. GM's Seat Safety Research and Development Team (SSRDT)--assembled in 1991 and consisting of engineers, biomechanics, and attorneys--looked at "whether or not the current strength level was performing adequately, and if not, whether or not reasonable increases in strength would be required." (9)

The team obtained police reports, photographs, medical records, and test data for many of the cars and seats at issue in the lawsuits. The engineers considered various changes in seat-back strength and hypothesized how the seat hacks involved in the litigation would have behaved in the crashes if they had been designed differently.

The panel found 50 cases with sufficient information to analyze, and reached conclusions in about half of them. According to the panel, in 25 cases the injuries were associated with seatback performance. In 19 of those 25 cases, a seat-strength design change would have reduced the injury severity; in five others it was uncertain; and in one it would not have made a difference. (10)

Roadblocks to safety

As early as 1993, engineers within GM faced continuous bureaucratic, marketing, and legal roadblocks to the introduction of safer seats. In an undated internal memo to his colleagues, GM engineer Dick Neely stated:

   [In] ... my presentation today at the [GM
   North American Operations] Safety Center
   Council, I showed the video of the latest
   rear-moving barrier [test] and some preliminary
   data on how it looks and how good
   the seal performed.... There was a person
   named Bob Lange who I hadn't seen in the
   meetings before, and he had started asking
   questions like, "Well, why are you showing
   the 18,000 inch-pound, and what/how did
   you establish that?" ... [I]t's the same thing
   over and over again each time we present
   there.

   ... I had such a headache coming out of
   there [that] I didn't know what to think....
   They just don't value this anymore. I can't
   believe this. (11)

In response, GM engineer David Viano wrote to other GM engineers:

   I can only imagine what Dick Neely is feeling
   after three and a half years of trying to
   do a basic technical evaluation of what scats
   ought to be for overall safety of our customers.
   It is really disappointing to hear dais
   kind of reaction within the dialogue of
   what's called the "safety strategy" or the
   "safety research" of the corporation.... I am
   extremely disappointed with the quality of
   the deliberation that is going on within our
   company. (12)

That same year, GM engineers--including those responsible for the company's Automotive Safety Department--decided that there was no "marketing advantage" in making seat backs stronger. In fact, one memorandum noted that "initiating a special program tends to damn those seats currently in the field." (13)

Other internal documents showed that seat-back-safety changes were discouraged because GM officials believed introducing this new technology in low-end products would make them more expensive and reduce sales. (14)

However, by 1993 GM engineers had developed a "high-retention seat system" that was designed to keep the occupant in the seat in rear-end collisions, (15) and some GM engineers and lawyers were questioning "out loud" the legitimacy of a design that allowed car seats to collapse easily in relatively low-speed collisions. One especially damning piece of evidence is known as the "Toth memo." Recently, the Michigan Court of Appeals ruled that the 1992 memo--written by GM attorney Gary Toth--was discoverable, stating that although the document may once have been privileged, it was no longer. (16)

The memo revealed that beginning in the early 1990s, Toth discussed the performance of the company's front seats in rear-end collisions with many GM engineers, concluding that there was "no rationale" for a yielding-seat design. The memo went on to state:

The problem.

* Lack of "due care" analysis and documentation to support the design of "yielding" seats, which can result in occupant ejections and the risk of severe head and/or neck injury in rear collisions.

The consequences.

* Showing that we complied with FMVSS 207 ... is unpersuasive--FMVSS 207 is a "static" test without any demonstrated relationship to dynamic "real world" performance.

* No GM tests or data to support assertions of reduced neck loading and head impact potential with "yielding seats."

* No GM tests or data to support assertions that more rigid seats can enhance injuries.

* Many seat designers are unawave of how their seats perform in the field, or even in rear-barrier tests, and those who are aware are unable to relate that performance to "real world" injury performance.

Recommendations.

* Minimize the potential for occupant ejections and head contact due to seat-back deformation in rear collisions. (17)

GM's admissions

Taken alone or in concert, the documents GM engineers and attorneys generated from the 1960s to the 1990s constitute admissions regarding:

* the foreseeable risk of harm posed by collapsing seats in rear-end and oblique rear-end collisions

* available alternative designs that would have minimized the risk of seatback collapse in rear-end collisions

* GM's awareness that its strength criteria were inadequate and led to the design of an unreasonably dangerous product.

In the mid-1990s, Inland Fisher Guide, a division of General Motors, and Delphi (an entity within the GM corporate family) finalized the design of a safer seat that the company marketed as "The Catcher's Mitt" and the "Flex Width Seat," which controlled energy transfer from the occupant to the seat back so that the occupant would penetrate the seat back while it deformed. (18) The so-called debate over the safety, of "yielding" versus "rigid" seats was put to rest.

Cases like Maria Allen's brought to light a serious hazard but, more important, they revealed a conspiracy of silence that concealed from consumers a defect that was well-known to automakers. Despite the writings of GM engineers, government officials, and scientific researchers, the U.S. auto industry--and General Motors in particular--chose to ignore the dangers associated with collapsing scat backs. Critical internal documents now in the public eye will help the injured hold automakers accountable.

Try your case with motor vehicle products liability documents from the ATLA Exchange

These documents and many others concerning liability fox defects in motor vehicles are available from the ATLA Exchange. For more information, visit www.exchange.atla.org or contact the Exchange by phone at [phone] or by fax at [phone].

Cintron v. Kia Motors Corp. Four witness depositions and the plaintiff's memorandum in opposition to the defendants' motion for a new trial or for judgment notwithstanding the verdict, in a case alleging that an SLW was not crashworthy and had been improperly marketed as a substitute for station wagons. (No. LR3891.)

Dickerson v. General Motors Corp. The plaintiff's trial brief in a case alleging that a passenger-car seat back was defectively designed because it had only a single recliner mechanism and because a lap belt had failed to remain on a wearer's pelvis during a seat-back collapse. (No. LR2666.)

Griffin v. Kia Motors Corp. The plaintiff's initial brief and memo on bifurcation in a case in which a Florida appellate court held that a lower court had erred in admitting evidence of comparative fault in a crashworthiness case. The court also officially recognized a cause of action for strict-liability failure to warn. (No. LR3948.)

Hillhouse v. DaimlerChrysler Corp. The plaintiff's fourth amended complaint, asserting claims of defective design, failure to warn, and misleading advertising. The case alleged that an air bag in a minivan had deployed unnecessarily and too forcefully and had extended too far. (No. PL929.)

Johnson v. Ford Motor Co. The transcript of the pretrial hearing and a partial transcript of the pretrial conference in a case alleging that a 15-passenger van was trustable and that the door latches and belt buckles were defective. (No. PL955.)

Kumar v. Shumar. The plaintiff's complaint, opposition to the defendant's motion to dismiss, response to a summary judgment motion, motions in limine, pretrial conference statement, and response to a motion to transfer venue in a defective-seat case. The plaintiff alleged that the seat back could be reclined while the vehicle was in operation and that the seat failed to lock in the seat track. (No. LR3606.)

Seat Belts and Air Bags Abstract Set. A collection of verdicts, settlements, and opinions that have appeared in the Products Liability Law Reporter since 1993, involving liability for defective occupant-restraint systems. (No. AS031.)

Tire Accidents Abstract Set. A collection of verdicts, settlements, and opinions that have appeared in the Products Liability Law Reporter since 1993, involving tire accidents. (No. AS055.)

Trull v. Volkswagen of America, Inc. The plaintiffs' appellate briefs arguing that the defendant automaker bore the burden of allocation in a crashworthiness case where the injuries were indivisible. (No. PL857.)

Notes

(1.) General Motors Safety Investigations lot 1972 Passenger Cars, Report Number ASE-200, February 16, 1968. Affidavit of Edwin B. Klove Jr, in Support of Petition of Automobile Manufacturers Association for Reconsideration of FMVSS Standard No. 202, Mar. 11, 1968.

(2.) See GEN. MOTORS CORP., REPORT OF OLDSMOBILE (Dec. 20, 1966).

(3.) David C.Viano, Influence of Seal Back Angle on Occupant Dynamics in Simulated Rear-End Impacts, SOC'Y AUTO. ENG'RS PAPER NO. 922521 (1992). Letter from Gen. Motors Corp., to Barry Felrice, Nat'l Highway Traffic Safety Admin., Regarding General Motors Corp. Comments in Response to Docket 89-20 (Dec. 4, 1989).

(4.) John W. Melvin & James H. McElhaney, Occupant Protection in Rear-End Collisions, SOC'Y AUTO. ENG'RS PAPER NO. 720033 (1972).

(5.) Letter from Joan Claybrook, Administrator, Nat'l Highway Traffic Satiety Admin., to E.M. Estes, President, General Motors Corp. (Nov. 28, 1980).

(6.) Viano, supra, note 3.

(7.) Id. at 2.

(8.) See Kenneth J. Saczalski & Alan Cantor, Petitions for Rulemaking to Amend FMVSS 207 (filed Apr. 18, 1989, and Dec. 28, 1989).

(9.) Buongiovanni v. General Motors Corp., No. 91-00167614-2,1996 WL 932545, at * 3 (Pa. Ct. Com. Pl. July 10, 1996). (This study has been called the "Seat Back Litigation Study.")

(10.) The panel found that stronger seat backs would not have changed the outcome in the other crashes because of the type or severity of the crash.

(11.) E-mail from Dick Neely, Engineer, General Motors Corp., to David Viano, Engineer, General Motors Corp. (undated). (At GM, the North American Operations Safety Center Council was one of the major engineering groups obligated to sign of f on new safety components before recommending them to the corporate officers.)

(12.) E-mail from David Viano, Engineer, General Motors Corp., to Unnamed Engineers, General Motors Corp. (undated).

(13.) Memorandum from Unnamed Engineers, General Motors Corp., to Robert A. Rogers et al., Engineers, General Motors Corp., Seat Back Strength (undated).

(14.) See Deposition of David Viano in McCutchen v. Gen. Motors Corp., No. 00CS306 (Ga., Troup County Super. Ct. Feb. 20, 2002).

(15.) See Documents Admitted into Evidence, Allen v. Gen. Motors Corp., No. CV-02-61 (Me., Cumberland County Super. Ct. June 2003). See, e.g., GENERAL MOTORS CORE, SAFETY ISN'T ONE THING. IT'S EVERYTHING/HIGH-RETENTION SEATBACK (undated). (GM engineers estimated that the seat could eliminate 50 percent of fatal injuries if every car manufacturer used a similarly designed scat system.)

(16.) Leibel v. Gen. Motors Corp., No. 240971, 2002 WL 31953810 (Mich. Ct. App. Dec. 13, 2002) (per curiam), appeal denied, 659 N.W.2d 228 (Mich. 2003).

(17.) Memorandum from Gary R Toth, Attorney, General Motors Corp., to Don Maertens, General Motors Corp., Tech Center (Apr. 14, 1992).

(18) See David Viano, Energy Transfer to an Oc cupant in Rear Crashes: Effect of Stiff and Yielding Seats, SOC'Y AUTO. ENG'RS PAPER NO. 2003- 01-0180 (2003).

LARRY E. COBEN practices law in Scottsdale, Arizona.