Debunking NHTSA myths in trucking litigation: jurors put a lot of faith in government regulation of the trucking industry. They need to understand that federal safety standards and defect investigations do not ensure that trucks on the road are safe.

Large trucks play a major role in both the occurrence and consequences of traffic crashes. According to the National Highway Traffic Safety Administration (NHTSA), 442,000 large trucks were involved in crashes in the United States in 2005, resulting in 5,212 fatalities and 114,000 injuries. (1)

These figures could be lower if safety-related laws and regulations governing the trucking industry were more stringent. But truck manufacturers have resisted measures that would require them to design and manufacture safer vehicles.

Relatively lenient federal safety standards and NHTSA's limited use of product recalls serve truck manufacturers well in products liability suits arising from truck crashes. Defendant manufacturers often assert that their vehicles are "safe" because they meet government standards and are not defective because the government has not recalled them. In some jurisdictions, defendants are helped by statutes or rules that create a rebuttable presumption that a manufacturer is not liable if the product complied with a mandatory federal standard or regulation. (2)

The challenge for plaintiffs in trucking litigation is to show that federal standards represent only the minimum level of safety that truck manufacturers must provide, and that the lack of a product recall does not indicate that a truck was free of safety-related defects.

Under the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), (3) manufacturers self-certify that their new vehicles and equipment comply with applicable federal standards but are not required to conduct testing before certification. (4) Manufacturers have an independent obligation to recall trucks for safety-related defects or noncompliance with safety standards.

Because NHTSA's minimum standards are not intended to define what is a safe product under all circumstances, compliance does not relieve manufacturers of any duties or responsibilities under common law to design safe vehicles. Congress specifically established in the Safety Act that compliance with Federal Motor Vehicle Safety Standards (FMVSSs) does not provide an exemption from liability at common law. (5)

Federal standards do not guarantee safety. Since FMVSSs are generally performance standards, manufacturers are free to design a part or system in anyway that produces the required performance. A company could choose a good design resulting in a nondefective product or a poor design resulting in a defective one--and yet both could meet the applicable FMVSSs.

More than 50 FMVSSs are currently in effect. (6) Most were issued 30 or more years ago and do not represent the state of the art in vehicle design or performance. FMVSSs are issued and maybe upgraded through rulemaking, a quasi-legislative process in which the agency takes into account the views of constituencies, including the powerful and influential motor vehicle industry. Realistically, it is difficult for NHTSA to enact a standard that the industry opposes, particularly in the deregulatory political environment that has existed since 1981.

To counter the typical defense argument that a truck's compliance with federal safety standards shields the manufacturer from products liability, plaintiff lawyers should show that NHTSA sets FMVSSs as minimum, not maximum or optimal, performance standards; they do not mandate that trucks be equipped with the latest safety technology. (7) Also, the standards apply only to new vehicles, even though a truck's safety features, designed to comply with the standards, may degrade with use and later fail to meet FMVSS performance levels. And most FMVSSs, particularly the crashworthiness standards, do not apply to large trucks (those with a gross vehicle weight over 10,000 pounds). (8)

NHTSA has repeatedly urged manufacturers to exceed its minimum standards. (9)

Truck underride standards

The leniency of FMVSSs for large trucks and the influence of the motor vehicle industry on agency rulemaking are illustrated in the sad history of NHTSA's activity on truck underride protection. (10) NHTSA began trying to improve underride protection 40 years ago but issued rather lenient standards only in 1996. During much of the rulemaking process, the industry opposed regulatory proposals.

In 1967, NHTSA issued an advance notice of proposed rulemaking for truck underride guards, followed by a notice of proposed rulemaking in 1969 that considered requiring a rear underride guard no more than 18 inches from the ground and capable of withstanding a static forward load of 75,000 pounds. The trailer industry and the American Trucking Association both responded negatively.

In 1970, NHTSA issued an amended notice of proposed rulemaking similar to the earlier one but with a lower static load requirement of 50,000 pounds. Again, industry comments were largely negative.

That year, Cornell University conducted tests under NHTSA's sponsorship, showing that an underride guard no more than 18 inches off the ground was needed to protect smaller cars in collisions with large trucks. The tests also showed that yielding (energy-absorbing) underride guards afforded greater protection than rigid guards.

In June 1971, NHTSA abruptly terminated the underride-protection rulemaking, stating that "the safety benefits achievable in terms of lives and injuries saved would not be commensurate with the costs of implementing the proposed requirements." (11)

In 1977, the Insurance Institute for Highway Safety petitioned the U.S. Department of Transportation (DOT) for more stringent underride protection. The petition was accompanied by a test report showing that "high-strength underride guard structures can prevent excessive underride with little additional weight." (12) This prompted a Senate hearing on auto-truck crash safety.

NHTSA reopened the rulemaking in August 1977, noting that information from its Fatal Accident Reporting System and state accident summary data indicated that the number of automobile collisions with the back ends of trucks was as high as 40,000, resulting in as many as 300 fatalities and about 8,600 injuries. (13)

In early January 1981, at the end of the Carter administration, NHTSA issued a notice of proposed rulemaking specifying performance requirements for underride guards on most trucks and trailers with a gross vehicle weight rating above 10,000 pounds. The proposal would have required an underride guard no more than 21.65 inches above the ground and able to withstand static test forces of 11,240 pounds at the ends of the guard and 22,480 pounds at the middle. Industry comments were again negative.

The subsequent administration, under President Reagan, took a deregulatory stance, and NHTSA issued no further rulemaking notice on truck underride protection for several years.

Finally, in 1992, the agency issued a supplemental notice of proposed rulemaking that contained proposals similar to those made in 1981. However, instead of the former single-vehicle-based standard contemplated in the earlier proposal, the supplemental notice proposed two standards: one for the guard itself and another for the vehicle, to apply only to trailers and semitrailers, not to single-unit trucks.

Four years later, in January 1996, NHTSA issued a final rule establishing two new standards: FMVSS 223 (Rear impact Guards), an equipment standard specifying performance requirements for underride guards on new trailers and semitrailers; and FMVSS 224 (Rear Impact Protection), a vehicle standard requiring most new trailers and semitrailers with a gross vehicle weight rating of at least 10,000 pounds to be equipped with a rear-impact guard meeting Standard 223. Compliance was not required for two more years.

Like the 1992 supplemental notice, the 1996 final rule excluded single-unit "straight body" trucks from regulation under FMVSS 224. Other types of trucks were also excluded, and there was no provision for side or front underride guards; the height requirement for rear underride guards was set at about 22 inches above the ground. These provisions severely limit the scope and effectiveness of the final rule, which NHTSA estimated would save only 9 to 19 lives per year, when total truck rear-end fatalities have reportedly been as high as 500 per year. (14)

In 1999, the DOT's Federal Motor Carrier Safety Administration, which regulates the safety of trucks used in interstate commerce, issued a regulatory requirement that trailers and semitrailers manufactured on or after January 26, 1998 (the effective date of Standard 223) and single-unit trucks be equipped with the underride guards required by Standard 223. (15)

Future rulemaking

In 2000, NHTSA announced a plan to review and evaluate Standards 223 and 224. However, that evaluation, which would require a two-year data-gathering effort, has been delayed and is now expected to be completed in 2008.

In 2003, the agency issued a multiyear rulemaking-planning document indicating that it is considering ending single-unit trucks' exemption from the underride guard requirements. (16) The document also proposed other areas for possible action, including

* making underride guards conspicuous, perhaps requiring reflective tape on large trucks' and trailers' guards so drivers can see them at night

* shortening stopping distances and improving braking on large trucks by identifying performance requirements for FMVSS 121 (Air Brake Systems)

* increasing foundation brake capacity and improving tractor-trailer brake compatibility

* upgrading the truck tire standard (Standard 119) and requiring a tire-pressure-monitoring system on commercial vehicles with a gross vehicle weight rating of more than 10,000 pounds

* instituting a drowsy-driver-sensing system to alert drivers.

NHTSA's 2005 update to the planning document also contemplates

* research and rulermaking on truck tractor braking.

* development of testing for electronically controlled braking systems.

* testing and rulemaking for antilock brake systems.

* research and a rulemaking decision on straight-truck braking.

NHTSA has been working on rulemaking for rear-object detection for over a decade. In March 1995, NHTSA received a petition for rulemaking to amend Standard 111 (Rearview Mirrors) to require convex, cross-view mirrors on the rear of the cargo box of step vans and walk-in style delivery and service trucks. The next year, NHTSA requested comments from the public on cross-view mirrors and other alternative rear-object-detection systems. (17)

More than four years later, the agency issued an advance notice of proposed rulemaking inviting general comments on rear-object detection and responses to specific questions concerning rear cross-view mirrors, rear video systems, and other rear-object-detection systems. (18)

A 2004 NHTSA study confirmed that both light and heavy trucks are disproportionately involved in deaths and injuries resulting from vehicle-backing incidents. In September 2005, the agency noted that straight trucks have a disproportionately higher backup fatality rate than other types of vehicles and issued a notice of proposed rulemaking to amend Standard 111 to require straight trucks between 10,000 and 26,000 pounds gross vehicle weight rating to be equipped with either a cross-view mirror system or a rear video system. (19) A final rule may be issued shortly.

Plaintiffs in truck crash litigation also must debunk the myth that if the truck involved in a collision had been defective, the government would have investigated and ordered a recall. Therefore, many jurors think, if there was no recall, the truck must have been safe. Manufacturer defendants, of course, have been known to encourage this view explicitly or implicitly.

Although NHTSA has long had the authority to investigate safety-related defects in trucks, its Office of Defects Investigation (ODI) opened relatively few investigations before it established the Medium and Heavy Duty Vehicles Division in 2001, devoting more NHTSA resources to alleged defects in large trucks.

Through September 2006, ODI had opened some 40 investigations of alleged defects involving large trucks, trailers, buses, and recreational vehicles. Although more than half have been resolved by recalls, several others have been addressed by remedial action other than a formal statutory recall. Some of the large-truck investigations were closed with no remedial action, and others are still open.

Defect investigations for large trucks are different from those for traditional passenger cars and light trucks, where the manufacturer is almost always the prime source of information. In large-truck investigations, while the manufacturer may be an important information source, fleet owners and parts suppliers are also major sources because a truck production run is typically smaller than a run of lighter vehicles and the product is often custom-made for a particular fleet.

The parts supplier often has the most important information NHTSA needs. When the truck manufacturer is primarily a vehicle assembler rather than a designer of the vehicle's parts, there is a greater potential for design defects that are basically mismatches where one part or system on the truck does not work properly with another part or system. Too often, truck manufacturers passively wait for their parts suppliers to investigate and solve problems when they should take a proactive approach.

Fleet operators also may have critical information about malfunctions or part failures. Drivers of fleet vehicles typically submit their complaints to the operator, which has its own maintenance facility. Also, companies with sizable truck fleets may have arrangements with the manufacturer to reimburse expenses incurred as a result of defects, and they may not contact NHTSA with a safety concern unless the company is at loggerheads with the truck manufacturer concerning reimbursement.

A promising source of information in truck defect cases is data from event data recorders (EDRs), the so-called black boxes. ODI has not yet used EDR data significantly, but its staff members have met with NHTSA's internal EDR experts and examined some air bag nondeployment events on medium-duty trucks to understand certain failures. In the future, ODI probably will rely more heavily on EDR data, particularly as the data becomes more sophisticated. (20)

In the last three years, ODI has received a large amount of data--including incidents involving deaths or injury, property damage claims, consumer complaints, and field reports--that NHTSA's Early Warning Regulation (EWR) requires manufacturers to submit. (21) The Medium and Heavy Duty Vehicle Division probably will make more use of this data, which should be helpful to the agency in the heavy-truck arena where owners and drivers, as stated above, have been somewhat reluctant to contact NHTSA about defect allegations.

One recent ODI action--its investigation of engine smiling in Ford Focus vehicles--sent aftershocks through the trucking industry. In late 2003, ODI found that clogging of the Focus's fuel-delivery module could cause the engine to stall.

Ford took the position that stalling is not a safety-related defect. It noted that ODI had closed an earlier smiling investigation in which it found no evidence of increased danger to occupants of vehicles prone to stalling. Ford asserted, in response to an ODI information request, that its own analysis had identified no claims of injuries associated with the Focus stalling.

After extensive negotiations with NHTSA, and facing the prospect of a potential recall order, Ford agreed to notify all owners of 2000 and 2001 Focus vehicles equipped with the "original design" fuel-delivery module that stalling could develop and that Ford would replace the fuel-delivery module when an owner reported any indications of stalling.

ODI took the somewhat unusual step of announcing in its closing report that it disagreed with Ford's findings. It also acknowledged that it had closed some stalling investigations without seeking a recall; indeed, ODI had previously stated, "there is no data indicating that occupants of a stalled vehicle are exposed to greater risk of injury due to the [stalling] condition" and "when a vehicle stalls while in motion, this gives the driver time and vehicle momentum with which to maneuver onto the roadway shoulder, away from travel lanes." (22)

However, recognizing that "vehicle stalling problems can vary in the frequency and severity of their nature, their effect on vehicle control, and the extent that prior warnings or symptoms" are known to the vehicle operator, ODI's future investigations would focus on a fact-specific inquiry into each alleged safety risk. (23)

In the end, evidently neither Ford nor NHTSA was willing to risk litigating whether the agency could compel Ford to recall the vehicles. But NHTSA's position on stalling had evolved: Thereafter, manufacturers--and trial attorneys--would be on notice that the agency considers the consequences of stalling to be safety-related and that absent mitigating factors, a defect resulting in stalling should be treated as safety-related. Indeed, after the Focus investigation closed, ODI resolved another longo standing stalling investigation of Ford vehicles with a recall. (24)

Two ODI truck stalling investigations resolved in 2005 were no doubt influenced by the Focus investigation. One concerned alleged fuel pump degradation or failure resulting in engine stalling; it led to a recall of school buses, ambulances, and fire equipment, but not other vehicles equipped with the engine at issue. The other investigation concerned alleged crankshaft failures that might cause stalling. It resulted in the manufacturer modifying its warranty coverage.

In an earlier era, ODI might have closed such investigations without requiring the manufacturer to take any action. But after the Ford Focus investigation, the Medium and Heavy Duty Vehicles Division pushed for remedial action.

Another division investigation involved leaking diesel fuel from trucks equipped with Detroit Diesel "Series 60" engines. While diesel fuel does not ignite as readily as gasoline--and thus fuel spillage causing fire in the vehicle is not a major concern--here the leaked fuel spilled onto the roadway, leaving a slippery surface that increased the risk of other vehicles crashing.

ODI leaned on Detroit Diesel to conduct a recall after it learned of two deaths from leak-related crashes. It is noteworthy that ODI pursued this matter, establishing a precedent that the agency expects a truck manufacturer to issue a recall when the unreasonable risk of a crash is related to one of its vehicles, even when the vehicle itself wouldn't be involved in the crash.

Great expectations

Americans expect a lot of their government, and this expectation can work against people who are seeking compensation for injuries caused by defective trucks. Plaintiff lawyers need to help jurors see the limits of what government regulations and investigations can accomplish. Some jurors may be impressed that a heavy truck is designed and manufactured to meet all applicable NHTSA standards, but that is not saying much. Most NHTSA standards are just safety minimums and do not apply to large trucks; those that do--like the underride standards--don't require the most rigorous safety features and technology that the industry is capable of engineering into its vehicles.

Although NHTSA's Office of Defects Investigation has taken a more focused interest in truck defects through its Medium and Heavy Duty Vehicles Division, large trucks are usually custom-made, making defect investigations problematic. A juror should not conclude that if a large truck had a safety-related defect, NHTSA would have ordered a recall, and that since NHTSA has not done so, the vehicle must be safe.

Presenting a clear picture of what the government does and does not do to ensure truck safety can put into perspective defense assertions that the truck met all government standards and was not subject to recall.

Notes

(1.) NHTSA Natl. Ctr. Statistics & Analysis, Traffic Safety Facts: 2005 Data--Large Trucks, DOT HS 810 619, at 1, www-nrd.nhtsa.dot.gov/PUBS/ LARGETRUCKSTSF05.pdf (last accessed Dec. 22, 2006).

(2.) See e.g. Tex. Civ. Prac. & Rem. Code Ann. [section]82.008 (2003).

(3.) 49 U.S.C. [subsection]30101-30170 (2000). The act was repealed, reissued, and recodified with the same basic statutory provisions. Pub. L. No. 103-272,108 Stat. 941 (1994).

(4.) 49 U.S.C. [section]30115.

(5.) 49 U.S.C. [section]30103(e); see H. Rpt. 1776, at 2 (July 28,1966).

(6.) See 49 C.F.R. [section]571 (2006).

(7.) The Safety Act defines "motor vehicle safety standard" as "a minimum standard for motor vehicle or motor vehicle equipment performance." 49 U.S.C. [section]30102(a) (9).

(8.) See FMVSSs 101,102, 103, 104, 105, 106, 108, 111,113, 116, 119, 120, 121,124, 205,206, 207, 208,209,210, and 302, which apply to large trucks; standards 223 and 224 apply to trailers and semitrailers. NHTSA, Federal Motor Vehicle Safety Standards (2006), www.nhtsa.dot.gov/ cars/rules/import/FMVSS/index.html#SN 101 (last accessed Dec. 22, 2006).

(9.) For example, the NHTSA administrator wrote to manufacturers that "our federal safety standards are and were intended by Congress to be minimum standards. The tragedy is that many manufacturers have treated the standards more like ceilings on safety performance than floors from which to improve safety." Ltr. from Joan Claybrook, NHTSA Administrator, to Manufacturers 2 (Nov. 28, 1980). A subsequent NHTSA administrator wrote that "mere compliance with the minimum requirements of the standard is not enough; minimum standards should not be the most in safety design that manufacturers provide." Ltr. from Ricardo Martinez, NHTSA Administrator, to Manufacturers 2 (Sept. 14, 1999) (copies on file with author).

(10.) NHTSA has substantially underestimated the problem of fatal underride crashes. See generally Ins. Inst. Hwy. Safety, FARS Undercounts Fatal Large Truck-Car Underride Crashes, 32 Status Rep. 4 (Feb. 15, 1997), www.iihs.org/sr/pdfs/ sr3202.pdf; Ins. Inst. Hwy. Safety, Q&A: Large Trucks, 41 Status Rep. 6 (July 15, 2006), www.iihs. org/sr/pdfs/sr4106.pdf.

(11.) 36 Fed. Reg. 11750 (June 15, 1971).

(12.) 46 Fed. Reg. 2136, 2137 (Jan. 8, 1981).

(13.) 42 Fed. Reg. 43414, 43414-15 (Aug. 29, 1977).

(14.) 61 Fed. Reg. 2004, 2006, 2026 (Jan. 24, 1996).

(15.) 49 C.F.R. [section]393.86(a) (2006).

(16.) NHTSA Vehicle Safety Rulemaking Priorities and Supporting Research: 2003-2006 app. A (July 2003), www.nhtsa.dot.gov/cars/rules/rulings/ PriorityPlan/FinalVeh/Index.html#idx20 (last accessed Dec. 22, 2006).

(17.) 61 Fed. Reg. 30586 (June 17, 1996).

(18.) 65 Fed. Reg. 70681 (Nov. 27, 2000).

(19.) 70 Fed. Reg. 53753, 53754 (Sept. 12,2005).

(20.) In August 2006, NHTSA issued a regulation specifying uniform requirements for crash event data in passenger cars and other light vehicles equipped with event data recorders. 49 C.F.R. [section]563 (2006). It does not apply to large trucks.

(21.) 49 C.F.R. [section]579 (2006).

(22.) NHTSA Off. Defects Investigation, PE98-057 Closing Report (Feb. 11, 1999) (quoted in NHTSA Off. Defects Investigation, EA 02-022 Closing Report 6 (Jan. 16, 2004)).

(23.) NHTSA Off. Defects Investigation, EA 02-022 Closing Report (Jan. 16, 2004).

(24.) NHTSA defect investigation EA 02-027 (upgrading defect investigation PE 01-043) resulted in the initiation of recall numbers 04V165000 and 04V175000 for model years 2001-2003 Ford Escape and Mazda Tribute vehicles, respectively (Apr. 2004), www-odi.nhtsa, dot.gov/ cars/problems/defect/DefectSearch.cfm.

ALLAN J. KAM is director of Highway Traffic Safety Associates in Bethesda, Maryland. He served in NHTSA's Office of the Chief Counsel for more than 25 years before retiring in 2000 as senior enforcement attorney. This article is updated from one published in the February 2006 issue of the Products Liability Law Reporter.