Raymond Paul Johnson Publications - Civil Litigators - Los Angeles, CA

Raymond Paul Johnson
Cory G. Lee
Raymond Paul Johnson, A Law Corporation
2121 Rosecrans Avenue, Suite 3400
South Bay Los Angeles
El Segundo, California 90245

The basics: A helmet has an outer shell, an innerliner and a chin strap. The strap keeps it on, especially in a crash. The outer shell prevents penetration by sharp objects, and most importantly maintains the integrity of the helmet system. It can be “full face” (think motocross/car racing); open with chin guards (think football); or half-dome (used by bicyclists).

The innerliner is critical. It absorbs the energy of the crash and so protects the head. Without a well-designed innerliner, usually made of crushable polystyrene-type materials, the helmet will not be crashworthy. It might protect from penetration (like a World War II helmet deflecting bullets), but not from crash energies in motorcycle accidents or collision forces in football and other sports.

There has been a recent renaissance about appreciating the dangers of head injury. In the last five years, for example, the National Football League (NFL) has certainly changed its way of dealing with concussions and other head injuries. 1 Where once returning to play after a “knock out” or “woozy” feeling was just part of the game, the NFL now recognizes the long-term dangers of concussions and other head trauma. 2 Indeed, in recent years, the NFL has sponsored helmet research and testing to preclude severe head trauma. 3 All too late however for NFL greats, Steve Young and Troy Aikman, who retired after repeated concussions. 4

Football of course is not the only sport besieged by serious head trauma. The National Hockey League (NHL) has seen its share of player retirements due to concussions and other head injuries. Two-time United States Olympic goalie and New York Rangers star Mike Richter, for example, was forced to retire after suffering traumatic head injury. 5 So, too, was NHL all-star Eric Lindros. 6 In March 2011, the NHL adopted new rules “to enhance safety and minimize head injuries. ”7

Clearly, head trauma plagues professional athletes, sometimes cutting short multi-million dollar careers. But participants in amateur sports share similar dangers, including high-schoolers, Pop Warner players, motorcycle riders and many more. About 300,000 sports and athletic participants in the United States suffer traumatic brain injury every year. 8 The cost of lifetime care for those with head injury can reach millions. 9

At any time, during sports, a healthy life can be changed forever. Knowing this, most families rely on sports-specific helmets to protect their loved ones. But how do they know which helmets protect best? Answer: They don’t.

Helmet standards and related testing are a labyrinth of regulations, requirements, and voluntary criteria. For example, in the United States, motorcycle helmets must have Department of Transportation (DOT) approval under Federal Motor Vehicle Safety Standard (FMVSS) 218, which is the epitome of a minimal standard. Such helmets, though, may also be certified by the Snell Memorial Foundation, the United Nations Economic Commission for Europe (ECE) or a host of other countries with varying helmet standards.

To further confuse matters, these standards have different testing methodology and pass/fail criteria. For instance, under Snell, with a full-face motorcycle helmet, the strength of the lower-face guard is tested merely by dropping a weight at its center. Failure is measured by excessive bending or deflection, or failure of the material. 10 The DOT standard, meanwhile, has no test at all for the lower-face guard. 11 The ECE, conversely, tests lower-face guards more rigorously than both; mandating the same drop tests for these vulnerable areas required for the rest of the helmet.

Testing under these standards, however, can bear little to no relation to real-world crashes or the injuries the helmets are designed to prevent. To qualify for Snell certification, for example, a helmet must pass a two-strike test onto a hemispherical chunk of stainless steel about the size of an orange. 12 The first impact must have an energy of 150 joules; the next strike, at the same location, is at 110 joules. 13 To pass, the helmet is not allowed to transmit more than 300 Gs of acceleration to the head form in the helmet during either hit. 14

Such tests, however, bear little resemblance to real-world accidents where a single strike is the norm, and two strikes to the same location exceedingly rare. 15 As a result, Snell-certified helmets (1) may fail to use adequate innerliner (i.e. energy-absorbing interior material) to protect the brain in a single impact accident; and (2) may transmit more energy to the brain in that single impact than necessary. 16

The various standards, as currently configured, also have very real and negative effects on a manufacturer’s incentive to improve its product. For instance, in recent years, some manufacturers have used composite materials, such as carbon fiber and kevlar rather than simple fiberglass, to strengthen motorcycle helmets. These materials make helmets stronger yet lighter. Most other manufacturers however stick with fiberglass to decrease manufacturing costs while charging nearly identical consumer prices for the helmet. Essentially, these manufacturers “design to standard,” and then tout compliance with the standard in their advertising campaigns, and on their products.

For example, manufacturers prominently display “Snell Approved” or “Snell Certified” on their helmets and in their advertising. But they hardly ever disclose strength comparison data about the actual strength of materials used in their designs. Consumer confusion is inevitable. When manufacturers resort only to “buzzwords” to sell their helmets, consumers are left tangled in catch phrases with little to no real guidance. 17

But consumers must also be wary when a manufacturer advertises that its helmets are made with carbon fiber and/or kevlar. Confusion can result from a manufacturer’s failure to disclose that such materials may be used in only small portions or patches of the helmet. In reality, ninety percent or more of the helmet could be constructed of “ordinary” fiberglass, rather than the advertised kevlar or carbon fiber.

Manufacturers, in such ways, obfuscate the actual construction materials and crash performance of their helmets. This is particularly true because very little independent-testing data exists for consumers to determine the relative strengths and crash performance of different helmets. In addition, the meager independent-testing data that does exist often involves anonymously manufactured helmets. 18 In fact, when requested, many manufacturers just plain refuse to provide sample helmets for outside testing. 19 Consumers, then, are left to divine the crashworthiness of helmets from advertising, buzzwords, and sometimes devastating personal experiences.

Unfortunately, those devastating experiences can include traumatic brain injuries that should have been prevented by the helmet. In such instances, litigation and careful discovery can penetrate the buzzwords and misleading advertising, and lead to the truth.

As a starting point, the authors recommend that initial discovery include at least the following ten (10) basic requests in all helmet cases:

Consumers face both legal and evidentiary hurdles in prosecuting a defect case against a helmet manufacturer. First, an injured victim must overcome a typical defense drumbeat that “s/he was participating in a sport and knew the risks.” While “assumption of the risk” is not a defense to a product defect claim,20 this hardly stops some defendants from arguing at every opportunity “s/he knew this was a dangerous sport”.

Jurors can be easily swayed by the simple argument that a plaintiff knew the dangers of a particular activity, and should now take responsibility for the consequences. The flip side is that a manufacturer of safety equipment also has responsibility, as well as corporate accountability. In particular, while dangers exist in every activity, safety equipment must still function as intended, and protect the consumer from foreseeable impacts. If the helmet fails to protect against severe head injury at energy thresholds below that of other helmets, or below the minimum safety expectations of consumers, it is defective.

Second, somewhat related to “assumption of the risk,” plaintiffs must confront the inevitable defense of contributory negligence. Defendants will emphasize time and again that “the helmet did not cause the accident,” and attempt to assign blame for the injuries to the plaintiff or third parties. The helmet user, in certain cases, must accept some blame for the injuries, but the simple fact remains: Consumers rely on helmets to keep them safe from severe head injury in foreseeable collisions and crashes. These collisions and crashes are the very reason helmets are sold, bought and used.

The third hurdle in helmet cases is an alleged defense that involves “Diffuse Axonal Injury.” These three words are often repeated by the defense like a mantra throughout mediation, jury selection, opening statement, witness examinations, and closing. If the medical records of plaintiff even suggest he suffered Diffuse Axonal Injury (DAI) as a result of the crash or impacts, it likely will be a primary defense for the helmet manufacturer. A manufacturer will argue again and again to the jury that DAI absolves it of any liability for plaintiff’s brain injuries because - - allegedly - - helmets cannot prevent DAI.

DAI is generally caused by mechanical injury to the brain from rapid stretching of internal axons during crashes and other violent impacts. 21 A manufacturer and its expert witnesses likely will argue that DAI can only be caused by rotational accelerations, which result in rotational forces on the head and brain damage that a helmet cannot prevent. The defense then will deny vehemently that linear (as opposed to rotational) accelerations and impacts can cause DAI, which therefore becomes the battleground on this issue.

This defense involves complex biomedical issues, and frequently jurors will get lost in confusion, which does not help in proving plaintiff’s case. But a diagnosis of DAI is not necessarily the death knell of a helmet defect case. Scholarly research has revealed, for example, that DAI can indeed result from linear impacts or contact loading, rather than only rotational accelerations. 22 Such linear impacts and contact loading are exactly the type forces that helmets are designed to mitigate.

A fourth hurdle, and perhaps the most important, will be an inevitable attempt by the defendant manufacturer to limit the jury’s evaluation of any helmet defect claim to just the “risk-benefit test” under Barker v. Lull Engineering Co. (1978) 20 Cal.3d at 413, 426 29. But first, some background. 23

Before the advent of strict liability for product defects, the law required consumers to pursue compensation for injuries caused by defective products through negligence and warranty theories. 24 In California, this all changed with the seminal case of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57. In Greenman, the California Supreme Court unshackled products liability from the “intricacies of the law of sales”, and established strict products liability as a cause of action dependent on neither warranty nor negligence. 25 The Court emphasized: “it [is] sufficient that plaintiff prove . . . that he was injured, while using the [product] in a way it was intended to be used, as a result of a defect in design . . . that made the [product] unsafe for its intended use. ”26

The Court however did not expressly define “defect” for fifteen years. In Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, the California Supreme Court adopted the “consumer expectation test” for product defect claims. 27 Under that test, a plaintiff may prove a design defect by circumstantial evidence which shows that the product failed to meet the standard of safety an ordinary consumer would expect. 28 The consumer expectation test permits a plaintiff to prove a design defect by demonstrating that "the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."29

An alternative test for product defect established in Barker, supra is known as the "risk-benefit" test. Contrary to arguments otherwise, the risk‑benefit test is not a defense to the consumer expectation test. 30 A product may be held defective under the consumer expectation test even if the benefits of the design outweigh the risks. 31

Although the risk-benefit test can appear benign, a real danger of jury confusion and misapplication of law may follow. Legally, under the risk-benefit test, the plaintiff need only prove that the product caused some harm. Then, the burden shifts to the defense to prove that the benefits of the design of the product outweigh its risks. 32 Danger exists however that a jury may misapply the shifting burden of proof. In addition, the highly technical issues involved in what multiple experts for each side might perceive as beneficial or not can confuse, if not confound jurors.

In Soule v. General Motors Corp. (1994) 8 Cal.4th 548, the California Supreme Court explained that specialized-use products may be subject to the consumer expectation test. 33 Helmets of course would be prime examples of specialized-use products. The Court also noted in Soule that “a product’s presence on the market includes an implied representation ‘that it [will] safely do the jobs for which it was built. ’”34

The Court also explained that with specialized-use products, “ordinary consumers” would be those who use the product. 35 Logically, in the case of a helmet, that includes those who buy and use helmets for safety.

The Court in Soule further made clear that what is needed to apply the consumer expectation test are facts that “permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users. ”36 Where that inference is established, the Court allowed for the option “that the injured consumer should not be forced to rely solely on a technical comparison of risks and benefits. ”37

In an important post-Soule decision, the court in McCabe v. American Honda Motor Co. , Inc. (2002) 100 Cal.App.4th 1111 explained that: "Whether a plaintiff may proceed under the consumer expectation test or whether design defect must be assessed solely under the risk-benefit test is dependent upon the particular facts in each case."38 The McCabe court further emphasized that: "The critical question, in assessing the applicability of the consumer expectation test, is not whether the product, when considered in isolation, is beyond the ordinary knowledge of the consumer, but whether the product, in the context of the facts and circumstances of its failure, is one about which the ordinary consumers can form minimum safety expectations . . . . If the facts permit such an inference, it is error to conclude the consumer expectation test is inapplicable as a matter of law." (Emphasis in original. )39

The choice of a helmet can be a life-or-death decision. It can also make the difference between a healthy, normal existence and one plagued by profound brain injury. In making that choice, consumers can face misleading advertising, buzzwords, a lack of comparison data, confusing standards, and a dearth of information about how the product is actually made, what it is really made of, and how it compares to competitor products. Where litigation arises, careful and detailed discovery can provide much of this missing information, even as to hidden defects. The measure of whether the helmet is defective, however, should not be limited in most cases to technical arguments about design risks and benefits. Instead, safety expectations should be key. And where an inference exists that the helmet’s performance did not meet the minimum safety expectations of the ordinary helmet user, the consumer expectation test should apply.

1. See “NFL retools approach to concussion research”, http://sports.espn.go.com/nfl/news/story?id=2844041.

2. See “Studies Offer NFL Window into Addressing Concussion”, Ken Muray, The Baltimore Sun, October 31, 2010.

3. See “NFL Looks to Player Safety with Helmet Study, Possible Rule Changes”, The Associated Press, January 3, 2010.

4. See “In the End, Young Had No Choice”, Dave Kindred, The Sporting News, June 19, 2000; see also “Aikman's Exit Fitting -- Class to The End”, Darrell Fry, St. Petersburg Times, April 13, 2001.

5. See “Time Out for Concussion”, Jessi Pierce, USA Hockey Magazine, Issue 2011-01.

6. See id.

7. See “New Concussion Plan for League Takes Effect,” Helene Elliott, Los Angeles Times, March 17, 2011.

8. See Sosin, D.M. , Sniezek, J.E. , & Thurman, D.J. (1996) Incidence of Mild and Moderate Brain Injury in the United States, 1991, Brain Injury, 10(1): 47-54.

9. See “Fact Sheet: Selected Traumatic Brain Injury Statistics”, Family Caregiver Alliance, http://www.caregiver.org/caregiver/jsp/print_friendly.jsp?nodeid=441.

10. See Snell Memorial Foundation “2010 Standard for Protective Headgear For Use with Motorcycles and Other Motorized Vehicles. ”

11. See 45 C.F.R. §571.218.

12. See Snell Memorial Foundation “2010 Standard for Protective Headgear For Use with Motorcycles and Other Motorized Vehicles. ”

13. Id.

14. Id.

15. See “Motorcycle Helmet Performance: Blowing the Lid Off Searching for the Truth behind Motorcycle Helmet Design, Helmet Standards and Actual Head Protection”, Motorcycle Magazine, June 2005.

16. See id.

17. See id.

18. See “Everything You Always Wanted to Know about Off-Road Motorcycle Helmets but were Afraid to Ask”, Dirt Rider Magazine, October 2008.

19. Id.

20. See Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 770.

21. See Smith, Meaney and Shull, “Diffuse Axonal Injury in Head Trauma”, J Head Trauma Rehabil, Vol. 18. No. 4, p. 307-16 (2003).

22. See e.g. Yoganandan, Gennarelli and Pintar, “Characterizing Diffuse Brain Injuries from Real-World Motor Vehicle Impacts”, Medical College of Wisconsin, Paper No. 07-0338 (2007).

23. For a more detailed history of products liability, see R.P. Johnson and M. Eidson, Defective Product: Evidence to Verdict, Chap. 1 (2003 Supplement) Juris Publishing, Inc. , NY, NY.

24. See e.g. Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57.

25. See Greenman, supra at 64.

26. Id.

27. See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426‑29.

28. Id.

29. Barker, supra at 426-27.

30. See Curtis v. State of California (1982) 128 Cal.App.3d 668, 690-91.

31. Id.

32. See CACI 1204 (2011).

33. See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567/n.4.

34. Soule, supra at 562 (quoting Greenman, supra at 64; and Barker, supra at 430).

35. Soule, supra at 567/n.4.