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When air bags injure or kill.

Air bag cases are difficult to prove and vigorously defended, so attorneys have to learn how to determine when a claim is viable.

Each year hundreds of people are saved from death or serious injury by air bags that keep vehicle occupants away from dashboards, steering wheels, windshields, and doors during collisions. This good news has been tempered recently by the National Highway Traffic Safety Administration's (NHTSA) confirmation that air bags have also killed and injured people.

This article provides information to help attorneys determine whether a potential air-bag-injury claim is viable and offers guidance on how to evaluate and litigate these claims. Citations to medical literature dealing with the biomechanics of air bag injuries are included to help point the way to admissible expert opinions under the Daubert rules for scientific evidence.(1)

NHTSA has estimated that from 1986 to 1997, air bags saved the lives of more than 1,750 drivers and passengers.(2) Rodney Slater, U.S. Secretary of Transportation, referring to the 13-year period since air bag rules were announced, said the bags had saved 2,600.(3) The number of people saved from serious injury can only be estimated at several times that number.

In the same speech, Slater noted that air bags have cost the lives of 87 children and adults in the United States. In other words, for every 30 people whose lives have been saved by air bags, someone has died as a direct result of bag deployment.

A report prepared for NHTSA in November 1997 by the National Center for Statistics and Analysis described cases involving fatal or serious injuries in air bag deployments since 1991. Attorneys who are evaluating air bag cases should obtain an updated copy of this report.(4)

The report categorizes data into four areas: (1) infants in rear-facing safety seats, (2) children in forward-facing safety seats, (3) adult passengers, and (4) adult drivers. According to the report, both children and adults were killed or seriously injured at collision impacts as low as seven miles per hour. The vast majority of the injuries were to the head and neck.

In 65 cases where impact speeds were less than 22 mph, children were either killed or received significant head or neck injuries while the driver was not injured or received minor injuries. Adults did not fare much better. The report cited 35 fatal injuries to adults where impact speeds were 20 mph or less.

The automobile industry had been aware for some time that air bags, while saving lives in many instances, also caused serious injuries and death. For example, in Bullard v. Chrysler Corp., testimony was elicited from a Chrysler Corp. manager in charge of investigating safety defects and assuring vehicle safety compliance. The manager acknowledged that auto manufacturers were aware of safety problems with air bags, citing "information that we've known regarding infants and out-of-position children for years."(5)

In May 1996, reacting to the growing problem of air-bag-related deaths and injuries, the federal government formed a coalition of auto manufacturers, air bag suppliers, insurance companies, safety organizations, and the government to address the problem.(6)

As a result of the coalition's study, the federal government on November 18, 1997, instituted a two-part action to reduce air-bag-related injuries. The first part was an education program on proper use of air bags.(7) The second part was a new policy allowing automobile owners in high risk groups to alter their air bag systems by installing an on-off switch.(8)

High risk groups include (1) those who need the deactivation for medical reasons, (2) those who cannot avoid placing a rear-facing child safety seat on the front seat, (3) those who cannot sit more than 10 inches from the steering wheel, and (4) those who cannot avoid a situation where children under age 12 are in the front seat.

Before an automobile dealer installs an on-off switch, it is necessary to obtain authorization from NHTSA.(9) In addition to the key-activated switch itself, the dealer also installs a warning light indicating that the air bag is "off." The new rule became effective January 19, 1998.(10)

Preemption issues

Air bags were introduced as optional safety devices for passenger vehicles in the early 1970s. Congress's recognition of air bags came as an amendment to provisions under the National Traffic and Motor Vehicle Safety Act of 1966.(11) The act was established to reduce deaths and injuries resulting from traffic accidents and to reduce the number of accidents. The Secretary of Transportation was given the power to enact provisions to address safety concerns. This led to enactment of Federal Motor Vehicle Safety Standard 208, which sets the minimum standards for safety restraint systems.(12)

The issue then placed before state and federal courts was, and has continued to be, whether the federally set minimum standards preempt common law causes of action against automobile manufacturers for failure to include safety measures that exceed the standards. Further complicating the issue was a savings clause in the act, which provided, "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."(13)

Case law interpreting the act's effect on common law claims of defective design generally address two preemption issues: whether the language of the act expressly preempts the common law, and whether there is implied preemption based on the intent of Congress as interpreted by the courts. Most courts now agree that the savings clause, together with the language of the act, does not expressly preempt a common law cause of action.(14)

Regarding implied preemption, the U.S. Supreme Court recognized that such preemption may exist (1) "when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively"; (2) "when state law is in actual conflict with federal law"; (3) "where it is impossible for a private party to comply with both state and federal requirements"; or (4) "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."(15) However, federal and state courts are still split as to whether Congress, in implementing the act, gave rise to an implication of preemption.

Courts that deny common law claims have found that the act's pronouncement of minimum standards creates an implication that a manufacturer need only meet those standards to fall under preemption's protective umbrella. Once that minimum has been met, the savings clause is of no consequence because "to be `exempted' from liability ... one must first be subject to it."(16)

These courts have consistently held that the savings clause only covers claims not otherwise considered by the act, such as negligent manufacturing or failure to include additional safety components not otherwise contemplated by the act.(17)

On the other hand, several courts have rejected preemption arguments, finding that the language of the act and a state's rights under common law are not in direct conflict. In supporting these opinions, courts have gone back to the spirit and language of the act as originally conceived, including a review of arguments made before it was enacted.(18)

The act defines "motor vehicle safety standard" as "a minimum standard for motor vehicle or motor vehicle equipment performance."(19) Both Senate and House reports on the bill state that the safety standards put forward are "not [to] be interpreted as restricting state common law standards of care. Compliance with such standards would thus not necessarily shield any person from products liability at common law."(20)

Courts concluding that the act does not preempt state common law claims note that the minimum standard set by the act does not provide a ceiling but merely a floor. These courts state that the lack of preemption does not place any further legal obligation on the part of a manufacturer; the manufacturer is still free to make decisions about safety devices based on economic realities.(21)

The U.S. Supreme Court has provided several opinions on the issue of federal preemption, but it has yet to review a preemption case involving air bags. The Court has, however, denied writ on a New Hampshire case where the state high court rejected preemption as a bar to common law liability.(22)

Biomechanics of injury

A standard defense in these cases is the "risk versus utility" argument--the assertion that air bags save more lives than they endanger. Another defense is the assertion that injuries resulted from collision impact, not air bag deployment. What the attorney must determine first, therefore, is the specific cause of injury.

If several people were in a vehicle at the time of impact, an examination of their respective injuries may help show how a client was injured. For example, although one passenger may have suffered serious injuries, other passengers may have suffered only minor injuries or none. Studies have shown that many air bag injuries were incurred while the victim was wearing a seat belt.(23)

Doctors have begun to recognize injuries related strictly to deployment of an air bag, separate and distinct from injuries related to the accident. These injuries take three forms: biomechanical injuries, burns, and neurologic and respiratory tract injuries.(24)

Biomechanical injuries related directly to contact with an air bag typically include injuries to the upper torso, neck, head, and upper extremities. These injuries result from impacts strong enough to crush a rib cage(25) or cause severe cervical,(26) cranial,(27) and ocular(28) trauma. The noise level at impact is high enough to cause permanent hearing loss.

Drivers who place their seat in a far-forward position run the risk of a minor accident becoming a major one. This is particularly true of older people with osteoporosis. In one case study, a 79-year-old driver involved in an accident at 20 mph was killed by his car's air bag. An autopsy showed that impact with the air bag caused a massive rib fracture, chest wall deformity, and fatal lacerations of the pericardium and heart.(29)

Younger people are also susceptible to serious or fatal injuries. In fact, the majority of fatalities involve children. At least to some degree, many of these injuries are related to parents or caregivers failing to adequately restrain or properly position children. A child may be thrown forward at the same time the air bag deploys into the passenger compartment.(30)

It is important to understand the force involved in an air bag deployment. To be effective, an air bag must inflate within 25 milliseconds--faster than the blink of an eye. The air bag deploys with a velocity of up to 200 mph.(31)

At the moment of impact, the air bag emerges from a steering wheel, dashboard, or side door housing where it has been held in place by a plastic, rigid urethane, polyvinyl, or metal plate hidden by an intentionally split foam cover. People sitting too close to the point of deployment run the risk of being struck not only by the air bag but also by the materials that are covering the bag.(32)

Sitting too close to the steering wheel hub or dashboard may not be the only problem. Other considerations include the movements of occupants immediately before impact and their position on the seat at time of air bag deployment.(33)

Burn injuries occur as a direct result of heat created by the air bag explosion. The temperature of gases released during inflation may reach as high as 300 degrees F., and that heat escapes from the bag through vent holes. Manufacturers have begun to address the venting problem by moving release holes from the sides to the top of the bag.(34)

In addition to heat-related burns, chemical burns are also a concern.(35) Burns may result from direct contact with a corrosive alkaline plume created as a combustion by-product.(36) Also, inflation of an air bag is accomplished by a chemical reaction that turns sodium azide into nitrogen. Together with other by-products, this gas is released into the passenger compartment. The chemicals in the gas may cause injuries.(37) A significant hazard exists for certain groups, such as asthmatics, who have shown a sensitivity to the gases released by air bags.(38)

Air bags produced by domestic manufacturers contain 60-85 grams of sodium azide in pelletized form. All this sodium azide is intended to be consumed in the chemical reaction before the air bag deploys. Of particular concern are deployments where the chemical reaction is incomplete. Sodium azide is a highly toxic substance that has been found to cause neurological and respiratory problems.

In the aftermath of an air bag deployment, some people have mistakenly identified residue left in the passenger compartment as sodium azide. This residue is frequently nothing more than the nontoxic cornstarch powder in which the air bag was packed.

Attorneys pursuing a claim of exposure to air bag chemicals should obtain a copy of the manufacturer's safety data sheet, commonly referred to as the MSDS. This describes the symptoms that can result from exposure to the chemicals.

Manufacturers are testing different chemicals for use in air bag deployment. Mercedes Benz, for example, is changing to a system that substitutes argon gas for the more toxic chemicals.

One size fits all

One serious problem with air bags--as with seat belts--is that they were manufactured and sold as a one-size-fits-all product. During the 1970s and 1980s, for example, NHTSA only required that air bags be tested for an average 165-pound man--the 50th percentile male.(39)

Auto manufacturers initially planned safer two-tiered products. In the 1970s, for example, General Motors Corp.'s first air bag venture had a two-stage deployment--the first stage for moderate crashes and the second for more severe ones. Other manufacturers also developed child-safe air bags in the 1970s and early 1980s. However, since NHTSA was requiring only a single standard for testing, these designs went by the wayside.(40)

Manufacturers are only just now implementing the next generation of size-sensitive air bags. One design feature is indirect deployment. For example, Honda has designed a passenger-side air bag that deploys up and over the dashboard before thrusting into the passenger compartment. By the time the bag passes the dashboard, it is two-thirds deployed and considerably less risky for the passenger. A driver's side air bag deploys downward before rising to protect the driver.(41)

Other features include tethered bags that do not intrude so far into the passenger compartment, bags constructed in sections that inflate with less power, and bags that use aspirated air to deploy more gently. Also being addressed are ways to measure a person's weight and size in order to adjust bag deployment speed or abort deployment entirely.

Manufacturers are beginning to respond to the public outcry for changes. Ford Motor Co. was the first to announce plans to manufacture 1998 vehicles with a less powerful air bag to protect children and small adults. General Motors and Chrysler are, to lesser degrees, following suit.(42)

Manufacturers are hard pressed to explain (1) why they continued to test only for the 50th percentile male and (2) why safer technology was not used sooner and is still not being implemented for all new vehicles.

The manufacturers have made it clear that air bag litigation will be vigorously defended. Even in the most egregious circumstances, the plaintiff attorney must be prepared to go to trial. The litigation is often highly expert-intensive. Biomechanical engineers and accident reconstructionists are frequently involved on both sides.

The Daubert guidelines suggest several factors to aid judges in evaluating whether a scientific theory or study is reliable: (1) whether it can be tested empirically; (2) whether the theory or study has been published or subjected to peer review; (3) whether the known or potential rate of error is acceptable; and (4) whether the method is generally accepted in the scientific community.(43)

Injury causation has been discussed by the medical community. Reports in medical publications cited here are derived from exactly the type of empirical testing contemplated by the U.S. Supreme Court.

It should be remembered that the standard for appellate review concerning Daubert decisions of federal trial court judges is abuse of discretion under Joiner v. General Electric Co.(44) Therefore, absent such an abuse, the trial court's decision to allow or disqualify an expert will stand.

Each air bag case is unique. The attorney needs information on speed and angle of impact as well as type and extent of injuries. Consideration should be given to whether the air bag manufacturer and the auto dealer should be named as defendants in addition to the auto manufacturer.

The attorney should determine if there is a cause of action for negligently failing to adequately test the air bags and should also review the owner's manual to determine if there was failure to warn or inadequate warning. If the air bag system fails to deploy or there is a spontaneous or inadvertent deployment, a design or manufacturing defect may be a cause of action.

Each air bag case requires keen evaluation. Attorneys pursuing these cases must focus on injuries that are directly linked to bag deployment, and they must be prepared to take the case to trial.

Notes

(1.) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

(2.) U.S. DEP'T OF TRANSP., NHTSA PERMITS MANUFACTURERS TO USE LOWER POWERED AIR BAGS (Mar. 14, 1997) (www.dot.gov/affairs/nhtsa97. htm).

(3.) U.S. DEP'T OF TRANSP., REMARKS BY SECRETARY SLATER (Nov. 18, 1997) (www.dot.gov/affairs/1997/111897sp.htm).

(4.) NATIONAL CENTER FOR STATISTICS AND ANALYSIS, SPECIAL CRASH INVESTIGATIONS (http://www.nhtsa.dot.gov/people/ncsa/sci.html) (visited Feb. 27, 1998) (or call (800) 934-8717).

(5.) No. 4:94CV134 (E.D. Tex. July 11, 1996, later proceeding, 925 F. Supp. 1180 (E.D. Tex. 1996)).

(6.) U.S. DEP'T OF TRANSP., SECRETARY PENA ANNOUNCES GOVERNMENT/INDUSTRY COALITION FOR AIR BAG SAFETY (May 21, 1996) (www. dot.gov/affairs/nht2496.htm).

(7.) U.S. DEP'T OF TRANSP., DOT LAUNCHES NATIONAL AIR BAG CAMPAIGN (Nov. 19, 1997) (www.dot.gov/affairs/1997/dot19197.htm).

(8.) Air Bag On-Off Switches, 62 Fed. Reg. 62,406, 62,423 (1997) (to be codified at 49 C.F.R. 595); see also U.S. DEP'T OF TRANSP., DOT ANNOUNCES NEW POLICY FOR AIR BAG ON-OFF SWITCHES (Nov. 18, 1997) (www.dot.gov/affairs/1997/nht5997. htm).

(9.) Id. at 62,442 (1997) (to be codified at 49 C.F.R. [sections] 595.5(b)(1)).

(10.) Id. at 62,406 (1997) (to be codified at 49 C.F.R. [sections] 595).

(11.) 15 U.S.C. [subsections] 1381-1431 (1994), (current version at 49 U.S.C. [subsections] 30101-30169 (1994)).

(12.) 49 C.F.R. [sections] 571.208 (1996).

(13.) 49 U.S.C. [sections] 30103(e) (1994).

(14.) See, e.g., Perry v. Mercedes Benz of N.A., Inc., 957 F.2d 1257, 1263-64 (5th Cir. 1992).

(15.) Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (citations omitted).

(16.) Harris v. Ford Motor Co., 110 F.3d 1410, 1415 (9th Cir. 1997).

(17.) See, e.g., id.; Pokorny v. Ford Motor Co., 902 F.2d 1116, 1125-26 (3d Cir. 1990); Cooper v. General Motors Corp., 702 So. 2d 428, 441 (Miss. 1997).

(18.) Munroe v. Galati, 938 P.2d 1114 (Ariz. 1997), provides an excellent point/counterpoint of the arguments for and against preemption.

(19.) 49 U.S.C. [sections] 30102(a)(9) 1391.

(20.) S. REP. NO. 89, 1301 (1966); H.R. REP. NO. 89, 1176 (1966) (Compliance with safety standards is not to be used as a defense or otherwise to affect the rights of parties under common law, particularly those relating to warranty, contract, and tort liability.).

(21.) Galati, 938 P.2d 1114, 1120; Doyle v. Volkswagenwerk Aktiengesellschaft, 481 S.E.2d 518, 520-21 (Ga. 1997). But see Cooper, 702 So. 2d 428, 441 (wherein the court specifically rejected the holdings of the minority); Minton v. Honda of Am. Mfg., 684 N.E.2d 648, 661 (Ohio 1997).

(22.) Tebbets v. Ford Motor Co., 665 A.2d 345 (N.H. 1995), cert. denied, 516 U.S. 1072 (1996). (Trial Lawyers for Public Justice maintains a research and briefing database on this issue at the organization's headquarters, 2000 P St., N.W., Ste. 600, Washington, D.C.; (202) 797-8600.)

(23.) NATIONAL CENTER FOR STATISTICS AND ANALYSIS, supra note 4.

(24.) D.P. Walters & M.R. James, An Unusual Mechanism of Airbag Injury, 27 INJURY 523 (1996).

(25.) Mary Jumbelic, Fatal Injuries in a Minor Traffic Accident, 40 J. FORENSIC SCI. 492, 493 (1995).

(26.) See, e.g., Helmut Maxeiner & Michael Hahn, Airbag-Induced Lethal Cervical Trauma, 42 J. TRAUMA: INJURY, INFECTION & CRITICAL CARE 1148 (1997).

(27.) See, e.g., Celeste M. Hollands et al., Severe Head Injury Caused by Airbag Deployment, 41 J. TRAUMA 920 (1996).

(28.) Richard S. Baker et al., Corneoscleral Laceration Caused by Air-Bag Trauma, 121 AM. J. OPHTHALMOLOGY 709, 711 (1996).

(29.) Jumbelic, supra note 25, at 493.

(30.) NATIONAL CENTER FOR STATISTICS AND ANALYSIS, supra note 4; see, e.g., Hollands et al., supra note 27.

(31.) Hollands et al., supra note 27, at 920. Speeds have been shown as high as 254 mph. Baker et al., supra note 28, at 711.

(32.) William Spafford Smock & George R. Nichols, Airbag Module Cover Injuries, 38 J. TRAUMA 492-93 (1993).

(33.) See, e.g., Maxeiner & Hahn, supra note 26.

(34.) Chrysler admitted in litigation testimony that it knew that side vent holes caused more burn injuries than vent holes at the 12 o'clock position. Deposition of William Randall Edwards (Dec. 14, 1995), Bullard, No. 4:94cv134, later proceeding, 925 F. Supp. 1180.

(35.) See, e.g., J.D. Polk & H. Thomas, Automotive Airbag-Induced Second-Degree Chemical Burn Resulting in Staphylococcus Aureus Infection, 94 J. AM. OSTEOPATHIC ASS'N 741 (1994); Brenda Swanson-Biearman et al., Air Bags: Lifesaving with Toxic Potential? 11 AM. J. EMERGENCY MED. 38 (1993).

(36.) Geoffrey G. Hallock, Mechanisms of Burn Injury Secondary to Airbag Deployment, 39 ANNALS PLASTIC SURGERY 111,112 (1997).

(37.) Alan Jon Smally et al., Alkaline Chemical Keratitis: Eye Injury from Airbags, 21 ANNALS EMERGENCY MED. 1400, 1401 (1992).

(38.) See, e.g., Kenneth Gross et al,Mechanism of Induction of Asthmatic Attacks Initiated by the Inhalation of Particles Generated by Airbag System Deployment, 38 J. TRAUMA 521 (1995); Kenneth B. Gross et al., Acute Pulmonary Response of Asthmatics to Aerosols and Gases Generated by Airbag Deployment, 150 AM. J. RESPIRATORY CRITICAL CARE MED. 408 (1994).

(39.) See THE AIR BAG CRISIS, CAUSES AND SOLUTIONS (1997) (Parents for Safer Air Bags, 1250 24th St., N.W., Ste. 300, Washington, D.C. 20037; (202) 467-8300). The 180-page book costs $25; an 800-page appendix of supporting material costs $200.

(40.) Air Bags and Safety, 15 LEMON TIMES 2 (Center for Auto Safety 1996).

(41.) Building a Better Airbag, 15 LEMON TIMES 2 (Center for Auto Safety 1996).

(42.) Morning Briefcase, DALLAS MORNING NEWS, Apr. 25, 1997, at 2D.

(43.) 509 U.S. 579, 593-94 (1993).

(44.) 78 F.3d 524 (11th Cir. 1996), rev'd, remanded, 118 S. Ct. 512 (1997).

Steven C. Laird is a partner at Russell, Turner, Laird & Jones in Fort Worth, Texas. Lorin M. Subar practices in Dallas.
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Author:Subar, Lorin M.
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