Victory is a no air bag case.

On August 15, 1989, Bill Davis was driving home in his 1988 Oldsmobile from a hospital visit to his wife, Peg, in rural Wilkes-Barre, Pennsylvania, when he became the victim of a devastating car crash. The collision resulted in catastrophic internal injuries. As Bill's doctors waged a heroic battle to save his life, neither Bill nor Peg could have imagined that they would someday make litigation history.

On September 21, 1994, the Davises became the first victims of two decades of automotive corporate neglect to win a lawsuit for a manufacturer's failure to equip a car with an air bag. A unanimous jury awarded the Davises substantial compensatory, damages and were prepared to decide punitive damages against General Motors (GM) when the parties settled the case.(1)

Since the mid-1980s, the auto industry, has successfully obtained the dismissal of hundreds of no air bag cases based on federal preemption. However, because of recent decisions in Myrick v. Freuhauf Corp.(2) and Loulos v. Dick Smith Ford, Inc.,(3) it appears the tide has turned. Today, people injured in collisions involving cars without air bags are likely to find the courts much more receptive to their claims.

Currently, there are close to 100 million vehicles on the roads without any, air bags. Statistically, more than 12,000 people die each year in frontal crashes - fatalities that could have been prevented by air bags. Likewise, thousands of people are needlessly injured each year.(4)

This article is trial counsel's story of Davis v. General Motors Corp. It is a compelling account of corporate neglect and indifference to the motoring public.

The Davises' 1988 Oldsmobile was one of several million cars built by GM with a door-mounted passive seat belt system. This seat belt was included to satisfy the federal government's mandate that a certain percentage of each manufacturer's vehicles include a passive restraint for the model year 1988.(5)

While some manufacturers chose driver's-side air bags and others chose motorized seat belts, the largest automobile manufacturer in the world opted for a belt system that provided the least level of protection and, in fact, violated its own safety standards. Even more important, GM - the pioneer in air bag design - withheld the most effective safety system ever conceived for front-impact protection, refusing to provide a standard driver's-side air bag with a manual lap and shoulder belt.

The Davis accident involved a head-on collision between his Oldsmobile Delta 88 and a late-model Ford LTD equipped with manual lap and shoulder belts. The Ford driver crossed into Davis's lane of travel, and the cars collided with a closing speed of 70 to 80 miles per hour.

The Ford driver suffered some bruises caused by his seat belt, and he was treated and released from the local hospital after a brief visit. Bill Davis was not so lucky.

When the crash occurred, Davis slid forward in his seat. The shoulder belt retractor locked up, but the lap belt retractor rotated several times before it locked. Because the lap belt was mounted to the door, it did not rest on Davis's pelvis; rather, it lay above and forward of his pelvis.

Davis's catastrophic internal injuries occurred in an instant during the crash because the design position of the lap belt - anchored in the door and requiring 44 more inches of webbing than a normal belt - and a lap belt retractor malfunction (known as "skip lock") caused him to submarine under the belt. After Davis slid forward and the belt "rode up" into his abdomen, the lap belt retractor locked up and exerted violent pressure on both the lower and upper regions of Davis's abdomen. His abdomen then struck the steering wheel, causing the wheel to snap off.

Photographs of the Oldsmobile revealed that there was no intrusion into the interior of the vehicle. The plaintiffs and GM agreed that the catastrophic injuries were caused by the lap belt part of the seat belt.

Preparation of this case, like every other air bag/seat belt crashworthiness case, began with pre-trial discovery, skirmishes (which continued during trial and resulted in sanctions against the defendant for failing to produce pertinent documents), the battle over federal preemption, and the detailed preparation of photographic and illustrative evidence to support Davis's Claims.(6)

Two-Pronged Attack

We attacked the safety of the Oldsmobile Delta 88 on two fronts: (1) the failure to install an air bag system and (2) seat belt design defects. We prevailed on both claims.

Factual and expert testimony, chronicled a pattern of GM's refusal to design and build its cars with safe seat belts and necessary air bags. GM first announced the sale of air-bag-equipped cars in November 1973. These systems were well designed: They contained mechanisms to avoid inadvertent deployment, dual sensors with variable inflation rates depending on the crash speed, and upper and lower torso air cushions.

While GM "quietly" sold about 10,000 air-bag-equipped cars during the 1974 to 1976 model years, the company essentially phased out its design and production plans for air bags shortly after the federal government postponed the 1973 to 1974 dates for federally mandated air bags. Thus, by 1981, GM announced publicly its decision to abandon any, future plans for air-bag-equipped cars.(7)

John Ehrlichman, former assistant to President Nixon, dramatically testified about a confidential Oval Office meeting in which GM Chairman of the Board James Roche told Nixon that the company was not capable of producing airbag-equipped cars. We contradicted Roche's assertion by presenting GM public statements from 1981 acknowledging that its air cushion restraint system program for 1974 to 1976 had been geared to the manufacture and sale of 300,000 air-bag-equipped cars.(8)

General Motors further admitted its real reason for abandoning air bags: "Our judgment and experience lead us to one conclusion - that the overwhelming majority of our customers will not buy, inflatable restraints...."(9) In other words, GM did not believe it could make a profit from installing these lifesaving devices.

Our evidence detailed engineering analyses by GM, the federal government, and other safety advocates beginning in the early 1970s and continuing through the 1980s establishing that no other single safety system was superior to the air bag in reducing the carnage on our highways. We showed the jury several films of GM crash and sled tests demonstrating the effectiveness of air bags alone in frontal crashes to minimize head, neck, chest, and abdominal impact and injury.

Statistics generated by Minicars (a safety company that built air-bag-equipped cars for the government) revealed that air bags would provide significant protection for unrestrained occupants, who represent two-thirds of those seriously injured or killed in mid- 1970s auto collisions.(10) Further, the air bag provides a safety buffer because the bag distributes the load forces the driver would experience if he or she were wearing either a defective seat belt or a well-designed seat belt in a high-speed crash.(11)

As we emphasized the safety advantages of air bags, we likewise revealed evidence that the door-mounted seat belt system violated general seat belt design principles, GM design principles, and Federal Motor Vehicle Safety Standard 210 because the lap belt - anchored to the door - was not designed to lay across and stay on the driver's pelvis. A report of the Canadian government confirmed our expert's conclusion that the system is unsafe.(12)

Defenses

Faced with this twofold attack, General Motors defended the case on several fronts. GM's engineers and biomechanical expert argued that Davis's injuries were a result of the severity, of the crash, that air bags only slightly increase the effectiveness of restraints in general, and that GM has done more for vehicle safety than any other manufacturer in the world.

However, the court barred GM from using its typical statistical defense, in which it argues that people suffer serious injury in serious crashes regardless of the car model or seat belt system in use. The court ruled that this evidence could not possibly help the jury, determine the safety of Bill Davis's Delta 88. Instead, GM was forced to try only this case rather than the thousands of other injury-producing accidents taking place annually.

As part of its explanation for installing a door-mounted seat belt, GM argued that this system substantially increased belt usage and, therefore, provided a net benefit to motorists. This defense had little appeal in a case in which even GM agreed that the motorist was injured by the belt in question. Also, the company made this argument in spite of its own internal documents revealing that 50 percent of its customers were not using this seat belt as a passive system - that is, they buckled and unbuckled the system as if it were a standard manual seat belt.

In defending its failure to install driver's-side air bags, GM argued that, after more than 20 years of pioneering this field of safety, it was unsure that the benefits of an air bag outweighed the risks. The company cited the dangers of bag "punch out" (catastrophic injury if the bag inflates when the occupant is sitting close to the bag - a particular risk for small people) and "bag fold" (injury resulting from the bag wrapping around the occupant's neck during inflation).

We challenged GM's air bag expert to show the jury any warning to motorists to sit as far away from the wheel as possible to avoid these risks. Because no such warning exists, we were able to call into question the sincerity of this defense.

General Motors also argued that air bag design is extremely complex and that in refining its designs, the company must weigh pros and cons of the device based on field reports of bag-deployment accidents. Therefore, GM argued that its government-mandated installation of air bags may not significantly improve safety.

In fact, one company witness went so far as to say - without any supporting documentation - that 1 in 10 air bag deployments results in serious or fatal injury. This testimony, of course, completely disregarded current statistics demonstrating that in the thousands of air bag deployment accidents to date, there have been only a few reported incidents of serious air-bag-induced injuries all of which were due to poor air bag design or faulty seat belt performance.(13)

GM's defense of our air bag claim was quite transparent. Having pioneered the development of air bags, then having spent two decades resisting government regulations requiring their installation, GM quietly placed air bags in only a few models in 1988 and 1989 to allow for field accident experience.(14) This unaggressive sale of air-bag-equipped cars in 1988 and 1989 was a repeat of its poor marketing attempts in the 1970s. Thus, GM again demonstrated that its management was less interested in enhancing safety than in ensuring the profitability of its products.

Step Toward Safety

More than 100 million cars and trucks are on the road without air bags. GM still manufactures some new cars and trucks without these devices. The company continues to sell door-mounted seat belts without any warning of the injurious design of this system.

While one lawsuit win not change the approach GM takes toward safety, it is a start. One jury has had an opportunity to witness deceit and neglect by the world's largest corporation. Without strong safety legislation, only juries can serve as a reminder to GM and other corporations that society will not stand for their compromise on safety. Whenever the risk of serious injury can be eliminated without unreasonable burden, manufacturers of motor vehicles owe it to customers to take action.

Victory in Bill Davis's case was long overdue.(15) It should sound a warning that spurs manufacturers to build vehicles with air bag protection and to offer retrofit driver's-side and passenger's-side air bag kits for all vehicles on the road without them.

Notes

(1) Davis v. General Motors Corp., No. 4569C (Pa., Luzerne County Ct. C.P. 1991). Co-counsel with the author were Joseph Quinn and Melissa Scartelli. (2) 13 F.3d 1516 (11th Cir.), reh'g denied, 24 F.3d 256 (11th Cir.), cert. granted sub nom. Freight-liner Corp. v. Myrick, 115 S. Ct. 306 (1994). See James L. Gilbert & Stuart A. Ollanik, Escaping Implied Preemption, TRIAL, Nov. 1994, at 20. (3) 882 S.W.2d 149 (Mo. Ct. App. 1994); Hernandez-Gomez v. Leonardo, 884 P.2d 183 (Ariz. 1994) (en banc), petition for cert. filed, 63 U.S.L.W. 3598 (U.S. Jan. 27, 1995) (No. 94-1305). (4) MINICARS, INC., ANALYSIS OF BENEFITS FOR THE IMPLEMENTATION OF PASSIVE RESTRAINT SYSTEMS IN AUTOMOBILES 1-11 (1977) [hereafter ANALYSIS OF BENEFITS]. (5) Federal Motor Vehicle Safety Standards, 49 C.F.R [sections] 571.208 (1993). (6) This case generally was tried under the evidentiary principles set forth in Habecker v. Clark Equip. Co., 36 F.3d 278 (3d Cir. 1994), cert. denied, 63 U.S.L.W. 3658 (Mar. 6, 1995) (No. 94-1060). (7) Barry Rohan, GM Is Abandoning Airbag Development, DET. FREE PRESS, Apr. 29, 1981. at 1A. (8) Id. (9) GENERAL MOTORS CORP., PRESS RELEASE, Apr. 28, 1981. (10) See ANALYSIS OF BENEFITS, supra note 4. (11) GM Builds 1st Car Equipped with Airbags, L.A. TIMES, Nov. 30, 1973, at 8. (12) C.D. Campbell & E.R. Welbourne, Transport Canada's Policy on Occupant Restraints, 1981 INT'L SYMPOSIUM ON OCCUPANT RESTRAINT 135, 142 (DOT HS-032 380). (13) John W. Melvin et al., Assessment of Air Bag Deployment Loads with the Small Female Hybrid III Dummy, 37th STAPP CAR CRASH CONF. PROC. (1993) (Soc'y of Automotive Eng'rs, Inc., Report No. 933119). (14) Davis, No. 4569C, Trial Testimony of Daniel Faust, GM engineer. (15) The Davises drove away from the courthouse in a car with manual lap/shoulder belts and dual air bags - not manufactured by General Motors.