Raymond Paul Johnson - Civil Litigators - Los Angeles, CA

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


I.                   INTRODUCTION

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. 

Unfortunately, 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.


II.                SAFETY MATTERS

Fire departments 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.[1]  On American highways, one vehicle fire is reported every two minutes, 24 hours a day, every day. 

Fifty-seven percent (57%) of all fire-related deaths in vehicles result from collisions.[2]  Comparing all fatal collisions, 70 to 80 percent more fatalities occur when the crash induces fire.[3]  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.[4]

  Research shows that fire is of particular concern in any crash where occupant entrapment occurs.[5]  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.[6]

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.[7]



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.[8]

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.

B.        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 predecessors.

Indeed, in 1996, the typical vehicle contained 90kg of combustible materials, containing twice the heat content of the gasoline in the vehicle.[9]  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.[10]

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 20 minutes.[11]  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 injuries. 

Shockingly, in rear-end collisions, flames penetrate the passenger compartment through body openings within 2 minutes, and can kill inside of another two minutes.[12]  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.[13]  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.



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 your crash.

As examples, consider propounding Requests for Production similar to the following:

1.         All documents related  to any meetings or studies regarding the rear-impact crashworthiness of the subject vehicle and substantially similar vehicles.

2.         All documents related to any meetings or studies referencing the fuel tank system in the subject vehicle or substantially similar vehicles.

3.         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 related filming.

4.         All documents that reference any design changes to the fuel tank system in the subject vehicle or substantially similar vehicles from first model year to present.

5.         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 vehicles.

6.         All documents related to the safety or lack of safety of the fuel tank system in the subject vehicle or substantially similar vehicles.

7.         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.

8.         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.

9.         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.

10.       All documents regarding any claims or lawsuits against you alleged to be related to post-collision fires in substantially similar vehicles.

11.       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.

12.       All documents related to any failure modes and effects analysis (FMEA) pertaining to the fuel tank system in the subject vehicle or substantially similar vehicles.

13.       All documents which describe the dimensions or location of the fuel tank system in the subject vehicle or substantially similar vehicles.

14.       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.

15.       All documents relating to any modifications, alterations, relocations, or changes to the fuel tank system design in the subject vehicle or substantially similar vehicles.

16.       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.

17.       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.

18.       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.

19.       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.

20.       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.


V.                 TYPICAL DEFENSES

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 fire.

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 physiological factors.

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 foreseeable manner.

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.


VI.              CONCLUSION

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.

[1] 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.

[2] Id.

[3] 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 1990.

[4] Id.

[5] See id.

[6]FMVSS 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 test period.

[7]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.

[8]Among 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.

[9] 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.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

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