Cory G. Lee
Raymond Paul Johnson, A Law Corporation
2121 Rosecrans Avenue, Suite 3400
South Bay Los
El Segundo, CA 90245
A big black SUV
rounds the bend and has to brake.
The driver carefully eyes an obstacle in the road, and
the cars slowing around it.
Suddenly, a sedan appears from nowhere.
It smashes into the rear of the SUV.
Bursting into flames, four people are trapped in the SUV
and burned to death.
this is not part of a script for TV's from "24" or
"CSI"; this is real life.
The road was Interstate 10.
The object in the road was a mattress.
And the post-collision fire. . . well, read on.
in America responded on average to more than 300,000 vehicle
fires per year from 2002 to 2005.
The result: 520 deaths, 1,640 injuries, and $1.3 billion
in direct property damage.
On American highways, one vehicle fire is reported every
two minutes, 24 hours a day, every day.
percent (57%) of all fire-related deaths in vehicles result from
Comparing all fatal collisions, 70 to 80 percent more
fatalities occur when the crash induces fire.
Even in non-fatal crashes, vehicle occupants in
collisions with fire suffer a 3-to-4 fold greater incidence of
serious injuries, compared to all crashes.
Research shows that fire is of particular concern in any
crash where occupant entrapment occurs.
It can be due to jammed doors, weak seats that collapse,
or other vehicle structures, such as roofs, that pin occupants
inside the vehicle. In
such cases, the rapid spread of post-collision fire results in
injury potential far greater than the initial collision forces.
In response to the
widespread and catastrophic results of vehicle fires, the
National Highway Traffic Safety Administration (NHTSA) enacted
Federal Motor Vehicle Safety Standards (FMVSS) 301 and 302.
FMVSS 301 (Fuel System Integrity), originally published
in 1967, specifies a maximum fuel spillage in a frontal
fixed-barrier crash, a rear-moving barrier crash, a side-moving
barrier crash, and a rollover after each crash test.
NHTSA also enacted
FMVSS 302 (Flammability of Interior Materials) in 1972.
FMVSS 302 outlines the specifications for burn rate and
burn duration of certain occupant compartment components in a
controlled laboratory environment, within a heat resistant metal
box, using a bunsen burner.
WHY CURRENT STANDARDS ARE INADEQUATE
A. Today FMVSS 301 is
Nothing But a Minimum Standard
While FMVSS 301 aims to reduce
the risk of post-collision fire, its bare minimum requirement leave occupants
unacceptably exposed to a fuel system rupture and the danger of fiery injury
and death. FMVSS 301 fails
because its barrier testing does not replicate real-world collisions.
In addition, the standard does
not test the need for, nor require the use of existing, life-saving technology
to prevent fuel leakage and post-collision fire.
Long-standing technology, that can be incorporated into existing fuel
system designs, is readily available. It
is being used in other applications. For
example, placing one-way check valves in fuel tanks could preclude fuel leaks
when the fuel filler neck is punctured or "sheared" from the fuel
tank, a major cause of fuel leakage in vehicle collisions.
Such check valves have been used in small airplanes, some passenger
vehicles and racing cars for decades.
Another example: Aircraft
manufacturers have used fuel bladders and plastic liners for decades to
prevent fuel spillage in the event of a fuel tank rupture, and although auto
manufacturer have "experimented" with them, they are not used in
production vehicles. And perhaps
most-egregiously, although technology has existed for decades that allows
manufacturers to position fuel tanks in protected areas forward of the rear
axle, manufacturers have variously located fuel tanks right next to the rear
bumper or outside the vehicle frame. In
these unprotected areas, the tanks are far more likely to rupture or separate
during impacts. As examples,
think "Pinto" and "saddlebag" fuel tanks on pickup trucks.
FMVSS 302 is Out-Dated and Largely Ineffective
At the time of its original
enactment in 1972, the intent of FMVSS 302 was to reduce deaths and injuries
caused by vehicle fires. This
"laboratory test" standard however is far too weak today to protect
occupants in vehicle fires. Today's
vehicles have roughly ten times the combustible material of their 1972
Indeed, in 1996, the typical
vehicle contained 90kg of combustible materials, containing twice the heat
content of the gasoline in the vehicle.
In fact, rather than direct burns from gasoline, the ignition and
burning of combustible plastics is the major cause of death today in
impact-survivable collisions and roll-overs.
As a result of testing on eleven
(11) late-model vehicles by General Motors, done pursuant to agreement with
the Department of Transportation to avoid a recall of its C/K Pickup Trucks,
we now know that where fire originates in the engine compartment, after a
front-end collision, the flames invade the passenger compartment within 10 to
After penetrating the vehicle interior, the flames can result in death
in 1 to 3 minutes from simultaneous effects of toxic gasses, heat and burn
Shockingly, in rear-end
collisions, flames penetrate the passenger compartment through body openings
within 2 minutes, and can kill inside of another two minutes.
In a rear-impact fire, the flames travel 10 times faster than allowed
in "laboratory specimens" under FMVSS 302, likely due to the
orientation of combustible materials, radiant heating by the fire before
interior penetration, burning gasoline that invades the passenger compartment,
and the burning and melting of plastic which drips away from the fire; all
factors unaccounted for in FMVSS 302 testing.
First responders require an
average of 10 to 15 minutes after notification to reach the collision scene,
and an additional 5 to 10 minutes to perform occupant extraction or other
rescue operations. As
such, the likelihood of survival in a typical front-impact fire is marginal at
best. And the likelihood of
survival in a rear-impact fire is dismal, especially if the occupant is
trapped by collapsed seats or other vehicle structures.
THESE CASES NEED TAILORED INVESTIGATION AND DISCOVERY
Certain auto manufacturers are
expert at stalling and/or stifling efforts at discovery in these cases.
As a result, plaintiffs must wade through layers of corporate
bureaucracy before finally obtaining responses, which often consist of 10 or
20 boxes of miscellaneous documents and computer discs with thousands of
pages. Some manufacturers even
employ "national discovery counsel" in other states who can be
difficult to reach. When you
finally get them, they are often unable to give definitive answers on the
scheduling of depositions or other discovery responses, which breeds even more
delay and confusion.
Document responses often include
wholly irrelevant items, categories of documents not requested, shuffled
documents, documents missing Bate numbers, partial pages, and non-sequentially
numbered documents. Since very
few, if any, plaintiffs or their attorneys have the resources of
international-conglomerate manufacturers, tailored discovery and
issue-narrowing strategies are essential to proving these cases.
If your resources are limited or
your experience is marginal in post-collision fire cases, consider teaming
with co-counsel who have successfully prosecuted these cases in the past.
Not only can they assist with the hundreds-of-thousands of dollars in
advanced costs needed to litigate these cases, but experienced co-counsel can
prove invaluable in selecting and coordinating the right experts for the case,
which is your next job. In all
likelihood you will need to start with an accident reconstructionist, a fire
"origin and path" expert, a biomechanical engineer, a vehicle design
and/or crashworthiness expert, and a burn doctor and/or pathologist.
The accident reconstructionist
can accurately calculate the speeds and directions of the colliding vehicles
and the delta-V (or crash energy exchange) of the collision, a critical
component in determining whether the manufacturer adequately tested and
soundly manufactured the vehicle.
The biomechanical engineer can determine how your clients moved during
the collision, whether there was seatbelt usage, and how the victims were
injured. He or she can also help
diffuse alleged defenses. Always
anticipate, for example, that the manufacturer will argue that the occupants
were injured or killed from blunt force trauma during the collision, not the
fire. We will discuss this
defense in more detail later.
In addition, an almost essential
item in prosecuting any post-collision fire case is to secure and preserve the
vehicle. Without the vehicle, it
will be extremely difficult, if not impossible, for your fire "origin and
path" expert to pinpoint how a defect is at fault for the deaths or
injuries in your case.
Another important point: Know
the terms-of-art in these cases. Like
any industry, the automobile industry uses its own jargon when referring to
specific vehicle systems or components. For
instance, if the occupants were entrapped by collapsed seats and their
seatbelts in the collision, which unfortunately is too typical, discovery
requests directed at "seatbelts" will probably not get all the
documents you need. Using
"occupant restraint system," which includes seat cushions,
seatbacks, seatbelts, and other structures that restrain occupants, is much
more likely to capture most if not all of the documents, and allow depositions
of the proper company representatives. Another
example: The "fuel tank designers" and "crashworthiness"
engineer for the fuel tank at many companies are different people in different
organizations who prepared totally different documentation.
In sum: Using correct terms-of-art will narrow the scope of documents
to those systems and issues truly relevant to your post-collision fire and
sets the stage for deposing the correct people.
Another next costly step in
prosecuting these cases is coordinating the vehicle inspections, and the
research and testing by your retained experts.
If done correctly, you should get answers to pivotal questions such as:
How and why did the fire start, and spread?
What were the defects involved? What
alternative designs would have prevented the post-collision fire?
What evidence exists that the injuries and deaths were due to the fire,
and not the blunt force trauma from the collision itself?
In addition, always remember to
research "other similar incidents".
Product recalls, voluntary safety campaigns, technical service
bulletins, consumer complaints to NHTSA, and complaints made directly to the
manufacturer and dealerships can be invaluable to proving the case.
Moreover, service and warranty records can unveil systematic problems
related to your post-collision fire that the manufacturer knew about before
As examples, consider
propounding Requests for Production similar to the following:
All documents related to
any meetings or studies regarding the rear-impact crashworthiness of the
subject vehicle and substantially similar vehicles.
All documents related to any meetings or studies referencing the fuel
tank system in the subject vehicle or substantially similar vehicles.
All documents related to any dynamic or static testing of the fuel tank
system used in the subject vehicle or substantially similar vehicles,
including but not limited to any FMVSS 301 or vehicle-to-vehicle testing, and
All documents that reference any design changes to the fuel tank system
in the subject vehicle or substantially similar vehicles from first model year
All documents evidencing design requirements, industry standards, and
applicable rules, regulations, codes or other guidelines (for the United
States, Europe and Australia), whether in existence or proposed, that were
used, consulted or reviewed by you and/or your agents pertaining to the
rear-impact crashworthiness of the subject vehicle or substantially similar
All documents related to the safety or lack of safety of the fuel tank
system in the subject vehicle or substantially similar vehicles.
All documents related to blueprints, engineering drawings, detail
drawings, internal specifications, assembly drawings, records, correspondence,
reports, and memoranda regarding the fuel tank system in the subject vehicle
or substantially similar vehicles, including any and all changes in the design
and manufacture of the fuel tank system.
All documents related to records, correspondence, reports, and
memoranda pertaining to any consumer complaints about the operation, use,
safety, alleged defective nature and/or failure of the fuel tank system in the
subject vehicle or any substantially similar vehicles.
All documents related to any injuries allegedly caused by the
operation, use, crashworthiness, defective nature and/or failure of the fuel
tank system in the subject vehicle or any substantially similar vehicles.
All documents regarding any claims or lawsuits against you alleged to
be related to post-collision fires in substantially similar vehicles.
All documents related to any recalls, safety campaigns, technical
service bulletins or suggested recalls, including, but not limited to National
Highway Traffic Safety Administration recall inquiries and consumer
notifications pertaining to the fuel tank system in the subject vehicle or any
substantially similar vehicles.
All documents related to any failure modes and effects analysis (FMEA)
pertaining to the fuel tank system in the subject vehicle or substantially
All documents which describe the dimensions or location of the fuel
tank system in the subject vehicle or substantially similar vehicles.
All documents which relate to any designs and/or methods suggested or
employed in production, model or prototype versions of the subject vehicle to
reduce, minimize or prevent occupants from experiencing injuries from fire
during rear collisions.
All documents relating to any modifications, alterations, relocations,
or changes to the fuel tank system design in the subject vehicle or
substantially similar vehicles.
All documents relating to any consideration you gave to installing
one-way check valves in your fuel tanks to prevent spillage in collisions
should the filler neck rupture or disengage from the tank.
All documents relating to any
consideration you gave to locating the fuel tank in the subject vehicle or
substantially similar vehicles forward of the rear axle.
All documents relating to any consideration you gave to providing a
bladder inside the fuel tank in the subject vehicle or substantially similar
vehicles to contain the fuel in the event of fuel filler neck separation.
All documents relating to any
consideration you gave to tethering the fuel-filler-neck assembly to the fuel
tank in the subject vehicle or substantially similar vehicles to prevent
separation from the fuel tank during collisions.
All documents related to any consideration you gave to providing a
flexible collar on the connection of the fuel-filler-neck assembly to the fuel
tank in the subject vehicle or substantially similar vehicles to reduce the
risk of separation during collisions.
Vehicle manufacturers generally
use similar theories to shield themselves from liability in these cases.
They always emphasize the cause of the collision, usually "the
other driver", to obscure the defect in the fuel tank system or other
vehicle defects which did not cause the collision, but are to blame for the
resulting vehicle fire and catastrophic burn injuries or deaths.
Another prevalent argument is
akin to the "Sherman Tank Defense".
It goes like this: "No vehicle, no fuel system, designed and built
by any manufacturer, can withstand such a collision."
This is where your experts come in.
They should show that the delta-V (or energy) of the collision was
manageable by good vehicle design, and that good design would have precluded
the breach of the fuel system that resulted in the fire.
This should include describing (technologically and economically
feasible) alternative designs that would have precluded the post-collision
Another classic but complex
defense can arise in death cases where the battleground becomes whether death
was caused by blunt force trauma (having nothing to do with fire or the fuel
system), or smoke inhalation and burning.
If the autopsy report shows low carbon monoxide levels in the victim,
typically reported as carboxyhemoglobin (CBHO) levels below 30%, the
"death by trauma" defense will be vigorously pursued, even absent
any other evidence of death by trauma.
This defense argues that death
was likely caused by subdural hemorrhage or other lethal trauma that might not
show up during the autopsy. Although
it gets complicated, the "death by trauma" defense can be defeated,
despite low CBHO reports.
First, CBHO levels are measured
by an oximeter. If it was not
properly calibrated, the low CBHO reading is probably wrong. In addition, low CBHO levels can occur in victims who
suffocate quickly causing asphyxia and death.
The level of CBHO in death victims can also vary
widely depending on their position in the vehicle, and individual
For example, depending on where
the victim is located and the airflow patterns through the vehicle at point of
rest, some occupants will be exposed to saturated air (resulting in high CBHO
levels) and some to non-saturated air (explaining low CBHO levels).
Also, some occupants may use a shirt or sweater to protect their
airways from smoke and soot, and yet die from the fire, which also
unfortunately burns away the shirt or sweater.
The best evidence however to
refute the "death by trauma" defense is an eyewitness who can
testify that following the crash, the victim was talking or screaming before
being engulfed in smoke and fire. With
that evidence, a defense allegation that death was caused by subdural
hemorrhage (or some other lethal trauma not evidenced during autopsy) will
likely fall on deaf ears at trial.
Finally, vehicle manufacturers
love to argue in all these cases that their vehicles "met and/or exceeded
all Federal Motor Vehicle Safety Standards".
Indeed while this may be true, as described earlier, the FMVSS
represent a floor, not a ceiling in making motor vehicles safe for consumers.
Failing any one of the FMVSS results in a legal inability to sell the
vehicle in the United States. That's
it. The legal test for defect is
not whether it met FMVSS standards, but whether the vehicle performed as
safely as an ordinary consumer would have expected when used in a reasonably
In most cases, the average
consumer would likely expect to survive a collision where the initial impact
does not kill or maim. The same
consumer would likely not expect the post-collision fire that results in
horrendous burns or fiery death.
Moreover, the "FMVSS
argument" belies the fact that a simple design change such as placing the
tank in a safe location forward of the rear axle, or adding a bladder, check
valve or other safety device would have precluded the severe burn injuries
and/or ghastly deaths caused by fire.
Success in holding vehicle
manufacturers accountable for post-collision fires requires a thorough
understanding of (1) the safety issues, (2) the minimalist nature of the
relevant safety standards, (3) the cost-effective use of the right experts, and
(4) the need for dogged persistence during discovery and trial.
It is not easy. But
remember: Someone has to do it. That's
why God created consumer attorneys.
National Fire Protection Association, Fact Sheet: Vehicle Fires, available
at http://www.nfpa.org/assets/files//PDF/VehicleFactSheet.pdf (last visited
September 22, 2008); M. Ahrens, U.S. Vehicle Fire Trends and Patterns,
National Fire Protection Association, Quincy MA, August 2005.
Glenn G. Parsons, Motor Vehicle Fires in Traffic Crashes and the Effects of
the Fuel System Integrity Standard, NHTSA Report Number DOT HS 807 675,
National Highway Traffic Safety Administration, Washington, D.C., November
301 specifications are as follows: (1) Frontal barrier crash- 48km/hour (29
mph) impact with fixed collision barrier perpendicular or up to 30 degrees
from perpendicular to the line of travel; fuel spillage shall not exceed 28g
(one ounce) from impact until cessation of motion, 142g in the five-minute
period after motion stops, and for the subsequent 25 minute interval, fuel
spillage shall not exceed 28g for any 1 minute interval; (2) Rear-moving
barrier crash- 80km/hour impact with 70 percent overlap with a moving
deformable barrier; fuel spillage shall not exceed limits outlined in
Frontal barrier crash; (3) Side-moving barrier crash- 53km/hour impact with
moving deformable barrier; fuel spillage shall not exceed limits outlined in
Frontal barrier crash; and (4) the vehicle shall be rotated on its
longitudinal axis in successive 90 degree increments following Frontal, Rear
and Side barrier crash tests; fuel spillage shall not exceed 142g for the
first 5 minutes of testing and shall not exceed 28g for the duration of the
materials that must meet FMVSS 302 are seat cushions, seat backs, seatbelts,
headlining, convertible tops, arm rests, all trim panels, compartment
shelves, head restraints, floor coverings, sun visors, curtains, shades,
wheel housing covers, engine compartment covers, and any other interior
materials, including padding and crash-deployed elements, that are designed
to absorb energy on contact by occupants in the event of a crash; or any
material which is within 13mm (0.5 inches) of the occupant compartment air
space. Tested material must
meet either of the following requirements: (1) the material shall not burn
or transmit a flame across its surface at a rate of more than 102 mm/minute;
or (2) the material must stop burning before 60 seconds and not have burned
more than 51mm from the point where the timing started.
the standard's deficiencies in simulating actual collisions are: (1) it
requires target vehicles be impacted with artificial barriers, not
real-world striking vehicles; (2) the weight of the barrier is 600 pounds
less than the average light truck or SUV; and (3) it essentially ignores the
mismatch of bumpers in real-world collisions (due to variances in vehicle
heights). This last factor
allows for dangerous underride during rear crashes that can rupture gasoline
tanks in ways never tested by FMVSS 301.
K.H. Digges, R.G. Gann, S.J. Grayson, M.M. Hirschler, R.E. Lyon, D.A.
Purser, J.G. Quintiere, R.R. Stephenson, and A. Tewarson, Improving
Survivability in Motor Vehicle Fires, International Interflam Conference,
11th Proceedings, Volume 1, London, England, September 3, 2007.