Carl F. Thelin: My cases

I worked over 25 years as a Crash Scene Investigator of serious motor vehicle collisions that resulted in major head and neck injuries. In many cases, those cases were followed by product liability lawsuits. The lawyers’ intent was to get a car manufacturer or an insurance company to pay for the multi-million dollar life-time care of a paraplegic, quadriplegic or brain-injured young person. Otherwise, their parent’s resources were quickly drained. Then society had to foot the bill for the care – which was often 24/7 at a rehab facility.

The crash injury would have been greatly reduced if that person not chosen to avoid using the seat belts. Even in that event, frontal and side airbags provide better crash protection if present. I doubt that society would tell the person so grievously handicapped by his own carelessness, or car-maker stupidity, that he should just go ahead and die if the bills were not paid.

That is why for almost 40 years I fought the auto industry to get decent seat belts and airbags. Just to reduce the shared costs. Much progress has been made.

Regulations are for things, such as seatbelts and airbags. Governments can, and should, require effective crash safety equipment. Rules are for people but not are effective unless strongly enforced.

Given that, you and I can’t force careless persons to use seatbelts or motorcycle helmets. However, I resent paying for their care if they are injured while claiming that freedom. Higher premiums for insurance and higher taxes for social services are the price we all pay for those freedoms.

Read about my cases here:

(01) SNOW WHITE The driver of the Potato Chip truck hit the girl on purpose. The investigating police officer blamed her. I had to prove him wrong without offending him. Here is one with little CSI engineering aspect but lots of courtroom drama.

(02) BACK WINDOWS Pick up trucks and big trucks have these flat pieces of glass in the back window. Stuff should not come smashing through.

(03) CRUSHED The seatbelt did it to the passenger in a cheap, pretty Buick front seat. A case that might have triggered class action. Took ten years for the client to give up.

(04) Dragons. This is what my job really is – the dragons win most of the time.

(05) Firestone Suckers I should have had this one but for a conflict of interest.

(06) FUNNY BUCKLES in Geo Prizm of mixed nationality. The courtroom expose of cheating in the filmed evidence from GM was kind of funny.

(07) PRONGS A stab in the back of the head by a part of a Jeep. A case about a weird design defect we won and then lost on a strange appeal.

(08) RUFUS KING The Blazer SUV door opened during a simple crash. I knew what the defect was, but GM was successful in stalling production of documents.

(09 SILKY Cavalier shoulder belt. This is about the classic problem with “Comfort” belts.

(10) SLAM DUNK The Saab retractor problem was among the easy things. Technically it was a good, easy case with multiple provable defects. Courtroom maneuvering spoiled it all.

(11) WHO WAS DRIVING I said it didn't matter. Why waste the money when families of both teen age boys were insured the same company?

===== Here are the cases

[01] SNOW WHITE

THAT BRIGHT AUTUMN DAY

Early morning on a bright colorful autumn day, Marilyn sat in her idling Pontiac Grand Am. She first looked to her left toward the top of the hill more than 600 feet away. Not seeing or hearing another car coming she turned and looked up the hill on her right and listened for nearby traffic there, too.

She did not see or hear any, so she moved out, turning left onto SR44, the two lane State Road into Smithtown, going to high school.

Marilyn did not make it. Many months after the collision, I was seated beside her parents looking at her. Marilyn was as pretty as Marilyn Monroe was, the “eye-candy” that every man in the room admired. Instead of wavy blonde hair, she had short black hair and bright red lipstick emphasizing her teeth. She sat at the left end of a table; her parents were seated behind her, leaning forward against the courtroom railing. The family’s lawyer was at her right side. Marilyn was gazing around randomly, as if she was Snow White playing with the seven dwarves in the Disney movie. The image was enhanced by the bold red and black colors of her outfit, even down to the shiny black slippers on her feet. Occasionally her mother leaned forward and shushed Marilyn. On this day, Marilyn and her parents were on one side of a courtroom. They were here as plaintiffs in this lawsuit with an attorney, Roger Abrams. The defendant, the Peter Piper Potato Chip company, was the employer of Jason Jones, the driver of the truck that hit the car Marilyn was driving. Their group of lawyers and company executives were seated at their table, across the aisle from us.
“All rise”, shouted the bailiff as Judge Grimm bustled to his perch above the rest of us. Oh, good, Grimm is the sort of young fellow who would be able to follow along with technical descriptions, I mused. Selecting and seating the jury was not at all controversial because everyone was a local resident of the county nearly 300 miles from the hometown of Marilyn. Attorneys for both sides made an opening statement to the jurors. These were simplified arguments describing what the case was about. Abrams told the jurors that the cop who said that Marilyn did a stupid thing to get hit - was wrong. It was not her fault.

The defendant’s lawyer said, no, the police officer was not wrong – he was an experienced officer who saw the car and the truck. He used more time explaining that this trial is a common attempt to get money from a wealthy company with the help of a group of nice people sympathetic to an attractive victim – you, the jurors.

Putting on his case first, as usual, Abrams defined the Smithers’ complaint in more detail. He called a doctor to tell the jury about the extent of the crash injuries to Marilyn. Everyone in the courtroom cringed as the doctor spoke about her. Her mother and father sat hunched over grimly paying attention. Marilyn was sitting calmly at the table with her lawyer and she simply gazed around oblivious to the awfulness of the words. I still feel sick knowing she didn’t understand what these men were saying about her.

Roger Abrams questioned Doctor Jack Arnold, who read the particulars from the document handed to him. Slowly the doctor read the ambulance report and then read reports from the hospital Emergency Room. He paused to explain to the jury the meaning of some of the medical terms. Closed head injury is a generic term that applies to the injuries that often result in the decline of sports boxers after too many knockouts. Arnold stopped to lecture the jury that a knock on the head by the butt of a pistol, such as often seen in the movies and TV is not much different. “Really,” he warned, “the hero would not be on the floor thirty seconds later shaking his head and getting up to continue solving the crime. That is not very realistic.”

“No,” the doctor continued. “That tough guy would wake up in a hospital wondering what happened – unable to recall being hit from behind.”

Another pause. Then Doctor Arnold looked at Marilyn and said, “Miss Smithers still doesn’t know what happened. Her parents have explained it many times, but Marilyn still cannot recall anything about it. Her physical wounds have healed, but not her memory”

Following the testimony of Doctor Arnold, the medical expert, the jury squirmed as the next expert witness began. Doctor Roger Williams, Ph.D., an expert on brain injuries, still seemed uncomfortable saying what he must. He looked at me, sitting behind and to the right of the table where Marilyn and her mother and father were sitting. He began to tell a story that made everyone in the room feel as badly as he did. Williams could not look at Marilyn or her parents. It hurt him to say these things in their presence but he knew that it was vital that the court hear all of it. That young woman now had the intellectual capacity of a six-year-old child. “Yes”, he said, “It is ironic that Marilyn is as pretty as the Snow White character. She wasn’t in a coma––but close. However, no Prince Charming would kiss this sleeping beauty to make her become fully awake. She would probably not get married or attend college. She would always require care at home or in an institution. When her parents would not be able to do it, she would probably end her life in a “home”.

The doctor went on with the details. Most of the listeners would not understand them but they did understand that Marilyn was brain-damaged. Who could believe that this girl was almost an empty shell, with her life in ruins, with no visible injuries or broken bones? Some men in the room were saying it was her fault, but Marilyn didn’t worry about that. Her parents did. Why? That is the reason why I was there in a courtroom with others from my firm called CSI. A Crash Scene Investigator is very much like a Crime Scene Investigator. All of us have technical backgrounds with specific training to find what really did happen during serious collisions of motor vehicles. Marilyn cannot speak for herself. The only eyewitness was a dubious character whose word cannot be trusted. He was not even here to testify against her. It didn’t matter. Even if there were a dozen witnesses to this car crash at a rural intersection, none of them would know what really went on. I knew. We, from CSI, needed to convince the jury that we did know what happened. We have impartial evidence. Physical evidence will always beat eye witness accounts. However, I had to wait for some other testimony to establish the background.

COMA

The doctor took his time to educate the jury. They saw a pretty19-year-old girl who seemed to be happy and healthy. Why are Marilyn’s parents suing for millions of dollars to pay for her care? Dr. Williams picked up a plastic model of a skull. He held it as if it was facing the jury. Then he separated the halves at the split in the middle and laid down one half. Now he turned the half-skull side toward the jury so they could see a spongy model of the brain within. The brain was suspended at the top by a short rubber band, allowing the mass to jiggle within the skull. As the brain jiggled, Williams told the folks that there is a network of blood vessels that feed the brain from all points around its surface. Some are tiny, like capillary veins. Then he slammed the face of the skull into the heel of his other hand. He did it several times. He asked the jury to focus on the brain bouncing from front to rear within the cavity. Then he took out his pen, moved the tip within the gap between the brain and skull, and spoke.

“Many of the tiny blood vessels here have been torn and would be bleeding into this gap. The brain is not like a kitchen sponge. The blood coming in does not soak in. Instead it presses on the outside. The heart continues to bring blood to the injured site. However, it is not becoming an inflammation to heal a hurt. No, the blood is slowly pressing on the outside of the brain, squeezing it. Within a half hour, the pressure would crush portions causing damage. Other parts of the brain did not get the blood they needed for life.”
Williams paused for that to soak in.

“In the end, Marilyn had severe brain injury. If there had been obvious facial injuries and if a knowledgeable doctor had been at hand, the blood pressure could have been relieved. It was not. Now, Marilyn does not think like an adult. She is lucky that, unlike many stroke victims, she can control her arms and legs. Now she talks – following a lot of therapy in the eighteen months since the accident.”

Crash Scene Investigators know of many cases like this. The client in one of my cases was a twenty-year-old boy driving in a sedan with a friend of the same age. Their car, stopped at a traffic light, was rear ended severely by a much larger car. This crumpled the whole trunk of the car. That pushed the back seat ahead against the back of the front seat. The boy’s seatback flexed back so much that it exposed the top back of his head to the impact. After both cars stopped skidding forward, the front doors were opened and both boys got out. They were angry and shouting. They could not say or do anything to the driver of the other car who was badly hurt too. The kids sat down on the curb in front of the wrecks. They spoke to each other for a while as they waited for the police to arrive. The driver said, “Boy I’m getting dizzy.” Then he stopped talking. Finally, he slumped over to his side. He had become child-like forever like Marilyn.

C.S.I. AND THE P.I.

The man or woman who becomes a Crash Scene Investigator is most often a police office for a city or the state. Just like the crime scene investigators, they have a lot of technical gear in one or more trucks that goes to the crash scene with them. There are kinds of specialties, too, as you would expect in the crime lab. It’s the task of every kind of CSI to gather evidence. We sort the stuff out later. The most experienced people figure out what happened by just walking around. It doesn’t matter that they can do it so easily. The insurance company and the police, and lawyers if they get involved, need a fully documented report and lots of photos for every case.

What matters is the evidence itself. It goes in the record. Later somebody may need to look at it to form an opinion and conclude about what really happened. Most of the time, it is obvious what happened. Our client asks us the more important question – who made the biggest mistake – why did the collision occur? Not everyone will agree.

If one of the parties involved claims that his injuries are the result of the purposeful behavior of another person, the investigation can go into criminal court for resolution. The police may call it negligent homicide or manslaughter. Criminal conviction can result in jail time. Even if the driver gets off the criminal charge, the civil case may follow, as it did with O.J. Simpson. That is not what happened here.

In a Civil court, conviction of fault can result in some horrendous dollar penalties. Say Jack carelessly runs into Peter, who was a brain surgeon. The injury renders Peter a quadriplegic. That will make Peter unable to continue earning his substantial income. If the jury convicts Jack, his insurance company will have to pay. Even with a liability policy paying one million dollars that might not be enough. What if Peter ended up like Marilyn? She had her future ruined but it’s hard to put a money value on it. A lifetime of care for her would cost more than $1,000,000. The future earnings of the brain doc could have been several millions, to say nothing of his pain and suffering, and the loss felt by his wife and family. Who can afford to have enough insurance for a judgment like that?

EVERY P.I. LAWYER KNOWS

A PI lawyer is not a private eye kind of detective. He is a lawyer specializing in Personal Injury lawsuits. Winning a PI case could involve getting a lot of money from the defendant if he has it. His insurance company might be the one to pay. If the injured party has disabling permanent injuries, one million is not even close to being enough. The cost of a lifetime of care for a child-like brain-damaged person, or a quadriplegic person, or a badly burned youngster can run into many millions. If the lawyer can attribute the fault to a large corporation, then the pot of gold is in sight. Those are the people with “Deep Pockets”.
In the kinds of cases that I do, the PI lawyer must associate with a PL lawyer for a way to get some big compensation for that victim. PL means Products Liability. PL cases involve a defective product. The heavy hitter lawyer who manages big-award PL cases sues a major manufacturer such as an auto company or an appliance maker. His team plans to claim and prove that the defendant should have known that the product was dangerous but sold it anyway. Think of cigarette, medicine or automobile manufacturers. Yeah. They have lots of money. Deep pockets indeed.

If the claim is that the injuries are the result of the purposeful behavior of another person, even an unknown person in a company, the investigation can go into criminal court for resolution or it can stay in civil court and argue for punitive damages.

In turnabout, lawyers defending the company might say that the victim really caused the injury due to his own actions, but it almost never works. Why does this blame-the-victim shift not work? Sympathy. Usually the injured party has no more wealth than the jury people do. This is why PI and PL lawyers avoid a trial-by-judge. It is also a reason, in cases involving a national company, to pick a location for the trial where the prospective jurors have typically shown little sympathy for large companies.

It’s easy to shift the blame to the company with the deep pockets. Back in the 1960s, the lawyers came up with the basic concept. Ralph Nader said it best in his book, Unsafe at Any Speed. Yes, he stated, dumb drivers usually cause automobile collisions. However, if the company engineers designed and built the car without these defects, the injuries would not have been so severe. An example in the 1970’s went like this: If General Motors had not fought so hard to avoid putting airbags in the steering wheel; this victim would have had, at most, a rug rash on his face after hitting the parked car. The plaintiff attorney would admit that this driver like the majority (in the 1970s) chose not to use the uncomfortable seat belt. The crash pushed the steering wheel backward. The crash momentum thrust the driver’s head forward and smashed it into the hard hub of the steering wheel, causing a broken face, skull and permanent brain injury. You would expect the jury to say, “Pay up, General Motors!”

GATHERING EVIDENCE

A case usually starts when someone calls my company called CSI, Inc. A caller that wants our investigative services is either a lawyer or a company. Some firms, like ours, are known to prefer plaintiff cases. The lawyer would be one representing the injured person. The plaintiff’s lawyer is the one hired to get compensation for the harm caused by the defendant. The plaintiff attorney listed in the yellow pages under Personal Injury, which is universally abbreviated as PI.

A defense lawyer probably works for an insurance company that is defending someone or some manufacturer accused of causing some harm to someone.

In my case, Roger Abrams, a lawyer from the southern rural part of Ohio, telephoned CSI. He had been contacted by Roland and Mary Smithers, parents of an 18 year old daughter, Marilyn. Abrams told us that the girl was injured in a car accident about a year earlier, and that the police blamed her for it. He told us that the family had come across some information about the driver of the truck that hit Marilyn while her car was crossing the highway. Abrams had done some quiet asking around about the driver and found out something that made it worthwhile to sue the driver’s employer, a national snack food distributor, Peter Piper’s Potato Chips. Attorney Abrams brought with him the police report, many photographs taken by the police and the local small town paper.

Right away, the value of much experience paid off. I could see enough in the pictures to know that the girl’s car, a Pontiac Grand Am sedan, was not crossing the highway when the truck hit it. Abrams listened as my team told him that with these photos and with measurements we would be able to collect at the actual scene, we could reconstruct the collision accurately. We would show that the Grand Am was in the eastbound lane when a potato chip truck going west hit it. It did not matter that the tire skid marks and the debris would have been swept and worn away long ago. The lawyer told us that he wanted us to go there and get what we needed. He would begin the process of discovery. That meant he would ask the employer about the driver’s background, and he would ask the neighbors of the Smithers what they knew about the girl. We thought there would be enough evidence to show that Marilyn was going to turn to her left and proceed eastward toward school that morning.

Attorney Abrams had his office investigators (including a guy who was a private investigator working for law firms) look for witnesses that would allow him to get recorded interviews. If what they still recall was valuable, Abrams needed to depose them for the record before they forgot or have their minds changed. Who were they looking for? Here is a list in no particular order.
Jerry Gam, the tow truck operator. He got to the scene early but had nothing to do until the police released the vehicles for removal. He had to sit in his truck and watch.

David Johnson – the reporter and photographer for the town newspaper.

Bobby Ming-Chi - An EMT from the ambulance who first evaluated the injured girl.

Roland Kozlowski – the driver and other medic in the ambulance. We found that he is the brother of the police officer.

Jason Jones – the truck driver. He has quit the job and moved away without even telling his live-in girl friend where he was going.

Robert Klein - the friend who knows Jason the best of our witnesses. He told us that Jason is the party-guy who wanted to get his route finished early.

Roland and Mary Smithers – The parents of Marilyn. Abrams needs to record their memories of the affair before they fade.

Billy - the older brother who said that his sister always would have gone straight to school.

Grace - the younger sister who can say she rode with Marilyn frequently and thinks she was a careful driver. She will insist that her older sister was not a show off.

Harvey Davis – warehouse dispatcher for the Peter Piper Potato Chip Company. He supervised the truck loading. He directed Jason on the route.

Harold Broom - the director of Human Resources who hired Jason. He is also responsible for the training of PPPC drivers.

George Kozlowski - the on-site police officer. We do not want to get him interviewed now. We will say, for now, that his detailed report is sufficient. It would be better not to get him prepared to be defensive about his erroneous report and conclusions.

FINDING THE SITE DETAILS

I gathered the CSI team after we had a $1000 check for our retainer in the bank. We also had a signed contract. Hard experience says wait for the money and a contract. We left in the company van early in the morning to reach the site three hours later. The police report identified the crash site as the intersection of a highway with a narrow two lane county road, called CR333. The highway, SR44 with two twelve foot wide lanes, crossed the narrow local road in the valley between two long hills.

It can be fun or it can be horrible to visit the site of a collision. It might be raining; there might be a lot of traffic on the road, or at the edge of a rural expressway. That last part has been scary. Some drivers of eighteen-wheelers seem to enjoy hugging the right edge of the highway when they see our people in orange vests working on the shoulder. Some of us have had narrow escapes from being slapped by the front of a passenger-side mirror.

Barry Karth and Don Bloom were with me. Barry is a retired police officer with plenty of experience attending to automobile collisions. He retired after twenty years on the city police force because he did not like talking with drunken people in cars. Some of them had a gun hidden under the front seat. He feels more comfortable at CSI looking into crashes after the living and dead bodies were gone.

Don was younger, more of a general handyman. He was eager to learn this trade, which seems like detective work to him. He is always eager to go on road trips. Don enjoyed the challenge of making accurate, detailed map-drawings of every thing that mattered for an analysis. He did not want to stay at the office waiting for Barry and me to bring back almost all the measurements he would need. To avoid getting not quite enough information, he wanted to be with us so that every bit, even the tiny details, would be marked down.

We were at the crash scene almost a year after the collision, with the similar bright sunshine and soft cool winds in the morning. We were lucky. The light shining from the east would be at the same angle relative to the hilltop. We were still on the spot later in the day. The traffic on SR44 was lighter at mid-day – good for us. We had to park our van on the side road, a bit to the north of SR44, out of sight from the main road so as not to cause concern for other drivers. While the fellows unloaded the equipment, I went to stand at the edge of the main highway, close to some nearby trees. I did not want drivers of cars and trucks to notice me and think that there was a speed trap nearby. I was not wearing an orange vest, better to be unobserved. I had a clipboard and a stopwatch. The sheet of paper had one column for “vehicle”, another for direction and one for “time”. I watched for several dozen vehicles coming from the east and from the west and noted whether the vehicle is a tall truck or a passenger car. I was hoping to get a few trucks coming from the east like the potato chip truck. The purpose of this was record the time from the first sight of the vehicle until it crossed CR333. Why did I not use a radar gun? Speed of the vehicles would matter if I had to prove that Jason was going far above the posted limit. That was not my purpose. I was trying to find out how much warning Marilyn would have about cars coming from either direction. We experimented with a car on an intersection like this one, near our office, to determine that she could pull out, turn left and get completely into the east lane in six seconds easily.

After that, I stood at the northeast corner with 8 x 10 prints of all the photos made that day by the policemen and a newspaper reporter from the nearby college town. Barry went out on the road while Don stood on the corner opposite me with a camera. Don is also the lookout to warn Barry about traffic coming. Barry used an upside down paint spray can on a stick with a trigger at the top. It makes a narrow red spray downward with a special nozzle. Police use it to outline the wheels of wrecked cars. We also had a couple of “Roll-a-tape” wheeled gadgets for measuring distances longer than we would measure quickly with a tape measure. We also had surveying equipment so that later we could measure the topography – mainly the slope of the road toward the east and west. We also wanted to measure the side slope of the roadway.

While I compared the present scene to the photos, I directed Barry to point at a spot on the pavement or the shoulder where there was something visible in the picture. If he found a faint image of the original mark, he marked it. Otherwise, I had to move a bit to compare the angles so that I was near the spot where the photographer made the picture. I directed Barry to where something appeared in the photo. The mark on the pavement was not visible now but we knew where it had been. Barry painted a spot there and Don took his pictures.

We did this repeatedly, with the police diagram and the pictures until we identified and located all the stuff we thought was useful. We measured the marks relative to a coordinate system for making an accurate scene diagram later with the north edge of SR44 and the east edge of CR333 for the grid zero-zero.
Now we had to do something a little harder. We know, from prior experience with crashes like this, that the initial collision was about 20 to 30 feet east of the intersection. The police officer did not discover the marks on the pavement, so he did not photograph or mark evidence of that when he was there years ago. A few of our pictures showed the highway a few dozen feet east of the crossing. Those were the taken by the newspaper reported. Probably the reporter was trying to use up the whole roll of film. Lucky us.

I had to stand on the south side of the road with Don behind me to warn of cars coming too close. I was looking at pictures taken showing the rear of the smashed Grand Am and the rest of the road going up the hill to the east. With several pictures to compare, at long distance, Barry and I settled on a spot where I thought the photos showed a small patch of dirt which fell from the vehicles when they first collided. I also saw what I perceived to be the path of a faint (at that distance) tire mark leading down to the location of the front of the wrecked Pontiac. Barry sprayed spots to mark it following my instructions.
Now the three of us used the clipboard, Roll-a-tapes and measuring tapes to plot these things onto a diagram. One person can do it alone when the client is cheap and pays for only one investigator. One worker could get enough data if he came back the next day – costing more. Having three pairs of hands and eyes made this go quickly. We got more than enough data to make good three-dimensional maps later on.

Now we did the job that takes a lot of walking. Again, having three people made it easy enough that we could finish without coming back another day. Don went up the road with the surveyor’s stick; Barry operated the surveyor’s level, and I wrote down the numbers. We had the height of the road, east and west, every hundred feet up to the crest. The valley at the crossing is level, so we skipped that for CR333. Great. We did the whole job in one day.

JASON’S UNHAPPY BOSS

Attorney Abrams was the one charged with getting the background discovery. Discovery in legal jargon means finding out what the other people know, or what they should have known but did not act upon. After he got the confirmation from CSI that the crash was not due to Marilyn’s error, Abrams notified the company offices of Peter Piper Potato Chip, in Columbus Ohio that he was suing for damages to his client, Marilyn Smithers. Unsurprisingly, the first response from the PPPC lawyer was, “Hey, what are you talking about? The police report said it was her fault.” The words Abrams heard were not that plain but that is what they meant. It did not matter. Abrams filed the suit and the discovery process began for both parties.

Abrams sent Interrogatories and Requests for Production to the law firm representing the other side. An interrogatory is a numbered series of questions about almost anything that would be relevant. The RFP is a legal document asking for the documents of any kind that the company has that might bear on the issue.
In our technical report, given to the defense attorneys with the notice of suit, we said we would prove that Jason, the driver of the PPPC truck, did not try to avoid hitting Marilyn, but actually hit her car on purpose. The questions sent to PPPC were to find out why he might have done that.
Wait, you say. Why sue PPPC? Why did we not sue Jason? He was just a working stiff. The best we could have accomplished going after Jason would be to get the state police to arrest him and try him on a motor vehicle charge. If the state convicted him, he might have been fined or put in jail for a while. That would not do a thing for Marilyn. Maybe her parents would have felt vindicated but they would still have had the burden of caring for their permanently handicapped child.
We were going after PPPC. They had the responsibility for the hiring, training and conduct of their employees. If we showed that they were negligent in that duty, we would collect from PPPC – and they do have deep pockets. After seeing the kind of discovery we requested, PPPC lawyers suspected that there is more to the story than what they saw in the police report. It was also clear to the PPPC people that this case was not a small claim. The Smithers were demanding that PPPC pay enough for a lifetime of care for a young beautiful brain-damaged girl. Whoa! That can amount to tens of millions of dollars with all the expenses and pain and suffering thrown in. Now the lawyers for PPPC, a firm called Holt, Harangue, and Kilt began to send INTs and RFPs to our side. They needed to know why we were making the claim - why did we think the crash was not the fault of Marilyn, despite the police report.

After PPPC got the paper work from us, they saw that this would not be an easy case for them. Our report and our evidence were so thorough that the PPPC people did not schedule depositions of any of our experts. Good. That shows the value of clearly written reports and solidly documented evidence. Avoiding depositions saves a lot of money and time for both sides.

JASON’S MOTIVATION

Examination of a hostile witness is usually the most exciting thing in the course of a long trial. We describe the procedure as hostile because that witness doesn’t want to volunteer any information. That person could be on the other side, or may just not want to be involved at all. Interviewing Robert Klein, a friend of Jason Jones, was useful. Bob told Abrams that Jason was rowdy and had a drinking problem but was never caught DWI. Abrams learned that just before the accident, Jason resented being laid off for two weeks and still was upset, the last time Bob had seen him. After the crash, Jason had packed up and left town, without even telling his girl friend about it.

Attorney Abrams had seen enough in the company employment paper work to ask questions of the management of the Ohio branch of PPPC about details of the career of Jason Jones, the driver of their truck. Knowing Jason’s attitude, Abrams knew that the most valuable deposition would be the one of Harold Broom. Bloom was the director of Human Resources for the Columbus Peter Piper Potato Chip Company. Broom was the way to reach into the pockets of PPPC. He was the company guy in charge of hiring and training their drivers.

Abrams asked Mr. Broom to bring employment papers relating to the hiring and training of Jason to the meeting. Broom also brought photos of the truck. The adjuster for their insurance company had taken the photos before the front of the truck was repaired. Jacob Harangue, attorney for PPPC was seated with Broom when the questioning for the record commenced with a court reporter present. A court reporter was there to record the conversations, unless they went “off the record”. Abrams quickly established Broom’s responsibility and competency to answer questions of this nature. Having his own copies of the employment records on hand, Abrams simply put on record what Broom knew about them.

Broom admitted that driver Jason had been a problem before. The company had a collection of complaints from the convenience stores that Jason serviced. Broom knew that Jason became surly when he was frequently late on his route and did not help the store clerks after depositing his load on their floor. The record only hinted that Jason might have been a drinker off duty but never on the job. His immediate supervisor had opined this on the record. Robert Klein thought Jason being hung over was the reason for being late and surly. The company had put Jason on unpaid leave for two weeks following several complains from convenience stores on his route. That certainly could explain Jason’s aggressive attitude that morning.

Good. All of that came out when Broom was in the witness box. Putting that remark about being hung over in the employment record was not smart. I am sure that PPPC later told their supervisors to be careful with stuff like that.

The company sent Jason home for two weeks, without pay, for that bad behavior. The crash happened on the first day Jason was back on his route. Of course, Broom was not about to admit that Jason probably had a resentful, bad attitude that day. Abrams put the question in the record knowing he would not get a clear answer. With that evidence on hand, those employment facts were all we needed to convince a jury that Jason was motivated by self-righteous anger to take it out on somebody else.

THE TOW TRUCK OPERATOR

You might wonder how I know what other people did at the scene if I was not at that place until years later. First, I had plenty of occasions to be at a crash scene while other technical people (cops, firemen and EMTs) are doing the initial investigation. In our business, we call that “getting there while the blood is still sticky.” I looked at the police report and the diagrams made by the officer. I read his written narrative from interviewing witnesses and closely looked at the photographs made by him and the newspaper reporter. There were some recorded statements made at the time. The private investigators from the office of attorney Roger Abrams took other tape-recorded statements. They were able to interview almost all the people who had been there. The police provided all those documents to CSI. Good background work, if I may say so myself.

The first people at the scene of collisions are those who crashed, of course. In this case, the intersection was remote, with no homes right at the corner close by. The Smithers home was about a quarter mile south, on the west side of CR333. Their home was close enough that they might have heard the noise of the crash, which was loud and brief - very much like the sound of a shotgun. The Smithers probably did not then associate that noise or the sound of the police sirens with their daughter.

The truck blocking the two-lane state road halted the next few vehicles that came upon the scene. One driver probably had had a cellular telephone. Otherwise someone went to the nearest house, north on CR 333, to call the police. There was little reason for the police to get to any of those people as witnesses, as they did not see the collision itself. Those bystanders alerted the police that there was a serious injury because the victim in the car was unconscious and unable to talk. The dispatcher sent two police cars. One officer was to investigate, the other to help direct the traffic through the site. One of them requested the dispatcher to send another officer to the intersection nearer the city to direct traffic around the detour, after it became obvious that the accident site would be tied up for a full investigation. When the office determines that the injuries are or might be fatal he must call for the whole investigation. These circumstances required the dispatch of a fire truck and an ambulance. Two tow trucks arrived shortly after the emergency crews.

One officer placed Jason in the back of a police car for interrogation. The potato chip truck was still drivable even though the left corner of the bumper was bent back against the tire. That prevented the wheel from turning until a couple of firefighters pulled the bumper out a bit. Then they parked the truck on the side road. Later, a tow truck took the truck to Smithtown to await the decision about what to do with it. After a brief exam by the EMTs, Jason was allowed to ride back east with his truck to report to his boss and the company claims investigator.

THE WRECK OF MARILYN’S CAR

The Pontiac was sitting on the northwest corner of SR44. It was leaning to its passenger side where a shallow ditch near the pavement was holding both passenger side wheels. The front of the car angled toward the southeast. If one made a quick appraisal at the scene, it would appear that the truck struck the Pontiac on the driver’s side as the car crossed from the south. The Pontiac seemed to have skidded west and north before coming to rest.

I saw in the later photos, that the grille of the Pontiac was barely distorted. The entire driver side of the Grand Am had crumpled sheet metal extending from the front wheel opening all the way back to the rear bumper. The impact jammed the driver’s door so it could not be opened. It also broke out all the left side windows. The sideways distortion of the A-pillar cracked the left side of the windshield, too.

Inside, Marilyn Smithers slumped backwards and toward the center of the car. She had her head between the front seat backs. Marilyn still was wearing her seat belt. Blood streamed down her face from the gash on the left side of her forehead. She was unconscious but breathing regularly. There was little reason for the police or the EMTs to immediately know that this had been a fatal collision. However, their standard protocol was to act as if death could follow since the girl was not able to be awakened. That meant that the police had to take many photos and they had to document the scene with measurements, such as the location of the point of first impact. Doing that is not as easy as measuring and diagramming the resting points of the vehicles. Typically, one police officer gets a can of red spray paint to outline the position of four tires of each vehicle at rest.

At the car, one EMT entered through the passenger door and quickly evaluated the girl. He covered her with a clean cloth so that she broken glass would not fall onto her while the other firefighters used the Jaws-of-life tools to cut the roof pillars and the roof rails Then they peeled back the roof like a sardine can. They knew it would take longer to cut open the smashed door because it was compressed tightly in the side of the car body. The EMTs gently lifted Marilyn out, placed her on a gurney and took her east to a hospital.

The word spread around Smithton that the injured person was Marilyn Smithers, well-known as the prettiest girl in the high school. The small town newspaper sent a fellow to take photos and talk with the family. Reporter David Johnson went to the home of the Smithers for their reaction. It was awful. At the time of the collision, Roland and Mary Smithers did not have the curiosity to walk down to the corner of CR333 and SR44 to see about what the noise was. Hearing for the first time that it involved their daughter, they brushed off the reporter, and drove to the Smithtown hospital without even stopping at the intersection to speak with anyone. Had they stopped to talk, they might have discovered then that people thought Marilyn was going across the highway when hit.

The fellows who drove the tow trucks walked around waiting until they could pull the Grand Am onto a flat bed. Both got credit for sweeping the pavement clear of all the debris shed from both vehicles. No gasoline or engine oil had fallen onto the road, so the firefighters did not need to flush the roadway. Jerry Gam had the truck that carried the wreck of the Grand Am into town. He, like most of the young men in town, knew the pretty girl nicknamed “Marilyn Monroe”. He lingered to make sure that the road was well swept. After securing the Pontiac to the tow truck, Jerry was the last to leave the scene.

BACK AT THE OFFICE

Now that we had the evidence back at the offices in Dayton, our team had to think about what to do with it from the technical standpoint. We had other people there to help us with their experience. I know a lot about cars – the structure and handling. Two CSI experts have expertise in the matter of vision – being able to see and recognize what is going on. Others are skilled in general physics of collisions and several fellows have investigated more collisions than I have.
What I concluded about the crash was not in the diagrams or the narrative pages in the police report. The truck’s left corner of the bumper lightly struck the rotating wheel cover on the left front of the Pontiac. The truck bumper pushed the fender just behind the left front wheel and front edge of the driver’s door. This directed the major force of the collision to the hinge pillar – that is the heavy structure that supports the front door hinges when the door is open. The truck pushed the rear half of the Grand Am front tires inward to the right so that it looked like it was in a turn to the left. The jammed tire was the only one that could leave a dark skid mark. The other three wheels could rotate and did not make strong skid marks. The right front tire of the Pontiac also was in a left turn attitude. The whole car rotated clockwise to its right as it went back to the intersection.

The collision with the stiff hinge pillar also jammed the truck bumper back against the truck’s left front wheel putting it into a left turn attitude, too. The car came to rest with the right front wheel in the ditch on the west side of CR333; and with the right rear wheel in the ditch on the north shoulder of SR44. The car appeared to be at a 45-degree angle, nose pointed to the southeast. The truck continued moving along with the Pontiac while it was briefly stuck in the wheel opening of the Grand Am. The motion of the Pontiac and truck found resistance when the car’s wheels dropped into the ditches. The truck then continued rotating counterclockwise so that the entire grille pressed against the side of the car. Then the stiff grille slid along the left side of the Pontiac. The truck continued to slide to the west and rotate counterclockwise. It stopped almost perfectly straddling the center of SR44, west of CR333. That motion left the typical braided swirl of tire marks. Both headlights of the truck were broken. The right side headlamp made a circular impression on the rear fender of the Pontiac. Looking at the evidence available to the police officer, I understood why he concluded that Marilyn’s car was hit broadside as she attempted to go northward across SR44. I could see why the positions of the wrecks made it appear as if the truck hit a car that was trying to go straight across the highway from the south. The position of the car at approximately 45 degrees across the south-west corner would indicate the momentum of the car was toward the north. One could assume that the truck pushed the car to the west. However, I saw in the photos the swirling impact gouges on the wheel cover of the left front tire. I saw that the rear edge of the tire was jammed into a left-turn attitude. The pictures showed that the truck pushed the fender behind the tire rearward and somewhat to the center of the car.

Thankfully, the insurance adjuster did take one useful photo that showed the bottom edge of the driver’s door window. The outside door skin had been tented (puckered) outward, and the inside skin of the door was tented inward. That does not happen in a genuine side impact. It is characteristic of a frontal collision, which will foreshorten the door. The newspaper photos did not add to this information, but the newspaper guy did stand far enough back taking some of his shots. His shots looking east beyond the wrecked Pontiac did help me see the debris where the collision began.

I did not get to examine the wreck itself at the insurance company holding lot south of Columbus, even though I had been there looking at other wrecks. The Company had repaired the truck and put it back in service before the suit was brought. Otherwise, they would have been required to hold it for inspection.

The Smithers family disposed of their wrecked car before they realized that they should have contested the claim that Marilyn was the cause of the collision.

MY EXAM

“Examination” is the correct word for what goes on when the lawyer is questioning a person on the witness stand. That word is accurate. The rules are this: the attorney asks questions. The witness answers them. The rules are that the lawyer does not ask questions that sound as if he is testifying himself. We call that leading. The witness is required to answer the question, and only that question. He is not to make speeches. Oh sure, you see that a lot in movies and on TV, but not in real life. The opposing lawyer will object. The lawyers have to be clever and careful to ask a question that will justify a long answer – a speech – if that is what they need for their side. A smart attorney will never pose a question without knowing what to expect in the answer, believe me.

The defending team always bats last. My side, the plaintiff’s team bringing the claim against the defendant, must make our entire case before the other team begins to dispute it. Sometimes the defense puts on some testimony that brings up something that the plaintiff’s team didn’t talk about of before. Then, there is an opportunity for rebuttal. The rebuttal is usually exciting because that is where the fighting starts. The defense can be nasty when cross-examining the plaintiff’s witnesses. That is nothing compared to the stuff when the plaintiff’s expert gets to comes back in rebuttal, in an attempt to tear down the stuff presented by the defendant. The rebuttal is not the time to bring in testimony about something new. Judges should stop that.

The order of witnesses and presentation of other evidence is important strategy for both teams. Typically, the lawyers want to get the background picture established first, so they call the eyewitnesses, then the police and other official-responding persons, such as the EMT and fire fighters. In some cases, even the tow truck operators add something useful. Every team must be wary of eyewitnesses who recall seeing and hearing things differently. The lawyer has to tread lightly to smooth over the disagreement of witnesses. He cannot let them fight in court about significant things. Eyewitnesses to a crash usually recall what they think they saw. The typical crash is complete in about a tenth of a second. It takes a bit longer for the vehicles to come to a stop. That is why physical evidence trumps even the most determined eye-witness. That’s why CSI is paid so much. Oh, by the way, we are not paid for our opinion. That is a nasty crack that comes from the other side. We are paid to present evidence, with an expert opinion as to what it means.

Next, our team brings in people who will describe the injuries and damage that justify the claims for compensation. These people could include the medics in the ambulance and in the Emergency Room. The lawyer asks the various professionals, who handled the recovery and long-term care, to paint a picture of a long and expensive rehabilitation plan. A financial person will provide a bunch of numbers to estimate the cost of medical recovery and lost income.
The crucial question is why should the defendant be held responsible for all this? Why is it his fault more than the fault of anyone else, including the plaintiff herself? What do I mean about that? Here is a for-instance. The police have charged you with stopping at a side street and then pulling out into the path of the defendant who has the right of way on the main street. They say it is your fault that the other car hit you. You should have waited for him to pass. However, if I can prove that the car on the main street was going way over the speed limit, much faster than anyone would ever expect to get away with – then you can win. I can argue that you looked up the road and saw the other car coming. It was a long way away, so you normally should have had plenty of time to cross safely. Usually, you can cross the street in time to get the rear end of your car out of his lane. You never timed it with a stopwatch. However, experience says it would be about four seconds. When you first saw the oncoming car, you made a judgment based on crossing that street hundreds of times before. Another car traveling near the speed limit would not be at the crossing for at least six seconds. An engineering analysis of the collision might estimate that the hitter was going about 20 mph over the speed limit before he tried to brake. Therefore, the collision is not entirely your fault. A jury may award you full recovery of all the monetary damages. Yeah, but they can’t make up for the pain of the injury. Nevertheless, it sure feels better to not be blamed for your own misfortunes.

The lawyers need to call expert witnesses. That person is not an eyewitness, nor a fact witness. He is someone with expertise that qualifies him to express his opinions about some of the evidence. Oh, I should tell you that it is fatal to the expert’s career to ever say “I guess”. The other side will say, are you speculating, Mr. Expert? Answer, “Yes” – and you are out of there forever.

When an expert witness is to testify in such a case, he has to avoid saying things that can be labeled junk science. Junk is when an alleged expert witness makes statements that are just plain scientific baloney, easily exposed. Each lawyer wants the jury to believe that only his or her experts are genuinely knowledgeable. Engineering, medicine, psychology fields are all plagued with junk science. A person who talks about some things that are subject to rebuttal must be able to convince the judge, first; then opposing attorneys, and the jury that he really does know about his subject – not speculating. Making up things to say will be fatal. The other side’s expert, if he is on his toes, will tell his lawyer “this is junk”. If the judge buys that, the junk scientist is finished. I have knocked off a few. Feels good.

Usually there are several experts in an automobile personal injury case. The typical case requires an expert in accident reconstruction. A medical team spells out the consequences - the injuries, while a financial person sketches the costs to the plaintiff in lost wages as well as ongoing medical expenses. Difficult cases involve a product liability claim that a manufacturing or design defect is the cause of the severity of the injury. Then both sides need engineering experts to describe the alleged defect or disclaim it. Different medical people come in to explain exactly how the injuries were, or were not, the result of the defect.
Just the preparation for this scope of case is expensive and time consuming. Lawyers pay experts for their time doing research and testimony. Evidence and other data are dug out by research of the relevant elements of the files belonging to the other side. All of this takes months, even years, to get ready and big bucks. The lawyer has wasted all of it if the other side catches his expert “with his pants down”. Being caught making up things is fatal. No matter how many times I say that, some guys never get it.

To be qualified as an expert; permitted to express my opinion, I must establish some credentials. The lawyers for our side must ask me questions to which my answers will convince everyone that I know enough to be an expert in this technical subject. To be judged competent is a much bigger hurdle to overcome than for an eyewitness. The jury can assume that the expert has an interest in the outcome of the case because he is being paid. A person, unrelated to any of the parties, who saw something can say what he thinks he saw. He could be mistaken, without fault, because his viewpoint differs from other eyewitnesses.

For me, getting qualified is easy. Years of experience in and around the auto industry, with plenty of hands-on work in auto safety will do it every time.

PRELIMINARY TALK

Now I was sworn in, to tell the truth, the whole truth and nothing but. First questions, for the record; who am I, where do I work and where do I live? Ok, I am more than 30 miles from home, so I must be an expert? No. We needed to establish my credentials.

Question (by Roger Abrams, attorney for the plaintiff) Mr. Thelin, you are called here to describe what you discovered about this case, right?
Answer: Yes
Q: Are there aspects to your training and experience that qualify you to speak of these matters?
A: Yes
Q: Please tell us about your education first; just name the schools and your degree.
A: I graduated from the University of Wisconsin in Madison, Wisconsin, with a Bachelor of Science Degree in Mechanical Engineering. That was back in 1953, I had a major in Machine Design.
Q: Mr. Thelin, do you have other degrees?
A: No, just occasional special classes.
: Oh. What, for instance?
A: All of it was related to what I do now. Computer programming for instance.
Q: Very well, then. What about your work background would qualify you?
A: Well, shortly after graduating, I went to work at the Engineering Staff of General Motors. There I was a designer of experimental cars such as the prototype for the first front wheel drive car that became the Oldsmobile Toronado. However, I really was interested in automobile safety. My bosses did not allow me to transfer to the Proving Grounds for that. Instead, I volunteered to transfer to the Chevrolet Division to assist the GM Legal Staff in defending the lawsuits that claimed that the Corvair had been designed with inherent defects.
Q: Let me interrupt you, Mr. Thelin. Am I right – did you work for the defense of General Motors?
A: Yes (He really wanted the jury to catch that.)
Q: Go ahead.
A: I thought that kind of work would lead to an assignment with the new safety research group at the Proving Grounds. It did not. I finally decided I was on the wrong side there.
After that, I went over to Uniroyal, the tire people. They needed my background. The job changed focus. Instead of being research, it became quality control. It was not pleasant to work in the tire factory.
Next, I had an invitation to go to Buffalo, New York. I really wanted that job. The place was Cornell Aeronautical Laboratory. Everybody called this research facility “CAL”. They were famous for their post-war work on control and stability of aircraft. Now, CAL was developing the same great reputation for automobile safety of automobiles. I started out working with the CAL test track. There were many test track activities involving braking and handling. However, the government, the sponsor of our work, wanted other research. They knew there could be more progress in an attempt to reduce the severity of injuries in crashes that occurred. The National Highway Traffic Safety Administration was more interested in research to improve the survivability in cars that did crash. CAL put me in charge of developing the facility for crashing real cars, with instrumented dummies, into the concrete barrier. Our object was to see how much improvement we could make in occupant restraints – seat belts – and crashworthiness.
For a long time we had the most powerful crash test facility in the country. We could even crash cars at speeds up to 60 mph.

Objection by Mr. Harangue for the defendant: “Judge, I think Mr. Thelin is belaboring this testimony. Can we move on, please?” (He wishes) “No.”

Q: By Mr. Abrams: All right. Mr. Thelin, would you tell the jury about any other work that applies to the case at hand?
A: OK. In 1972 Consumers Union, publisher of Consumer Reports magazine had an ad for an Automobile Safety Engineer. I had been a long term subscriber so I was interested enough to apply. I got the job on the spot and stayed there in that position for nine years. I was writing about every aspect of the 50 or so cars and trucks that CU tested every year. I wrote about handling, crashworthiness, and even the pioneering reports on child restraints for Cars. …
Q: Interrupting. All right. Mr. Thelin. What are you are doing now?
A: In 1981, I was foolish. I thought that newly elected President Reagan was going to dismantle the entire consumer protection activity of the federal government. I looked for another job in industry. Now, I am sorry I left consumers Union. The new job paid very well but was just about the opposite of what I wanted. The greedy management focuses the company on making money without regard to quality or safety. The owner fired me for some things I said about that. Felt good to get out, except that the 1982 recession was on. After than I began doing what I am doing now.

That was the end of qualifications. Sometimes the judge gets interested and lets me go on. Not always.

DON’T CALL THIS A CARTOON!

I want to describe as well as I can how the computer animation is produced. These were the early days of the use of computer to analyze automobile collisions. CSI began to use that capability to produce a movie-like display of what the crash might have looked like. Some people said the crude stuff looked like movie cartoons. Don’t say that to the guys who slaved to make them.

In those very early, pioneering days, the movie was not in color, and the shapes were simply wire-frame. Wire-frame means that the computer outlines the shape of the vehicles with thin lines. There was no illusion of solid shapes or texture. Programming was needed to erase the lines that would show through the empty space of the figure from the opposite side. Yes, it was crude – a long way from life-like Shrek shapes seen in animated movies today. However, with plenty of background explanation, our crude moving pictures could make it clear that the speed of the objects on the screen looked realistic – and much quicker than most people could imagine. Therefore, we would show a collision in real time – just a blink. Then, with computer magic, we repeated the scene with progressively slower frame rates. We would also zoom in to focus on some particular aspect, such as the impact against the left front wheel of the Pontiac.

This was the first time that Barry Penn, our computer whiz, could demonstrate such a complicated scenario. We had earlier successes with computer animation. Those were easier scenarios for the cases when one car, or truck, made a left turn in front of an oncoming vehicle. The pre- and post-crash trajectories of such a collision are straightforward. An overhead view of the action suffices – without the need to wrestle with 3-D solid-object modeling which we would do for the Smithers case.

Barry did get a chance to use this kind of animated work in a case we had in a county courtroom in the northern part of the state. This scenario was simple. It was a rural T-intersection where a state road ran north and south, with a smaller road joining it from the west. Here we did have an early involvement and were able to measure fresh gouge and tire marks. A northbound farmer pulling an empty horse trailer with his pickup turned left in front of a small car going south. You can imagine – the pickup truck itself did get out of the way, but the trailer did not. The pickup driver thought that it was simple. The farmer claimed that the car must have been coming at a hellish speed because he saw the car when it was a long way off before he started to turn. Yes, you could believe that the silhouette of a small car might make it seem farther away than it was. Nevertheless, we could analyze this collision. It was harder because both vehicles were unlike the typical sedan. We worked it out with consideration of reaction times and tire marks. One thing became obvious. The farmer was tiptoeing very slowly around the corner onto a narrow side road. He did not want to upset the horse. It wasn’t that the guy in the MG roadster was flying. It was that the trailer was creeping off the road. I got to show the movies more than once to really drill it in to the judge and jury that the farmer mistakenly thought the sports car surprised him. Knowing the masses of each vehicle, and the length of all the tire marks, we were solid.

MY ELECTRONIC DRAFTSMAN

At this point in history we had a problem with credentials in this animation. Back in the 1970s, opponents belittled our people who made rudimentary wire-frame computer animations as “cartoon makers”. People were no more likely to believe that I could show the dynamic appearance of a crash on a computer screen, than they were going to believe that Walt Disney was showing real deer in “Bambi”. Oh boy – that was a bad thing to say to Barry.

US courts had already accepted that still photographs and diagrams made by the graphic artist were good enough to be pasted on a slab of foam-core board and placed on an easel in the courtroom before a jury. Any expert could say that he made the photos and drawings himself or had it done by a draftsman with his instructions. The expert used sketches that showed the positions of things before, during and after the crash. If anything was wrong, it was the fault of the expert, not the draftsman.

All I had to say is that “What you see on the computer screen is an illustration made by my ‘electronic draftsman’. It is a dynamic, moving illustration of what I believe happened – in my expert opinion.” There might be a little bickering, and a threat from the other side to show a more realistic picture. The judge usually let the jury see it all.

Now, I pointed to Barry Penn, seated at the table with several pieces of computer gear. “Barry is my electronic draftsman. He has drawn a very large number of pictures based on my expert description of what happened that day. He and I, and his assistant, engineer George Hamm, verified that what you will see does not violate the laws of physics. George and Barry will not show you a cow jumping over the moon. This is not a cartoon.”

The judge called Barry to testify and explain how he does his work. Barry began by explaining that all movies and television pictures are really a series of still pictures shown in rapid sequence. Just like the pages of the funny books with a pad of tiny pages that you flipped through quickly. In this case, movies show pictures one at a time – one every 24th of a second. On TV, you see 30 pictures each second. To your eye, it looks like motion. That is why we used to call movies “motion pictures”.

Good. Barry handled a bunch of questions from the defense attorney with ease. He is happy. Every time we get one of his simulations accepted into court, the precedent makes it easier the next time. Now the questioning came back to me. The jury had their appetite whetted – I knew they want to see this movie.

“Folks”, I carefully explained, “This is not a movie showing what actually happened. If I told you that, Mr. Harrange would jump all over me.”

Pause. No objection there. OK.

This computer simulation illustrates what I believe really happened. The other side is going to argue later that it is not correct. That is why we are here, in a courtroom, in a lawsuit. Their side has experts that will tell you later what they think happened. Look at this simulation carefully. Later the lawyer for Marilyn will ask me questions about it. Then Mr. Harrange will ask me more tough questions. Just look and listen. Friends in the courtroom told me I had a smug smile. I got to watch that.

THE EAGLE LOOKS DOWN

This is what they saw. It was a bright autumn day when Jason met Marilyn at the intersection of highways SR44 and CR333. Most of the trees were nearly bare of leaves, so plenty of low slanted light fell onto the roads. At 8:30 AM, the sun was bright enough that anyone could see other cars on the highway. The roads crossed in a shallow valley, where the crest of a hill to the right was about four seconds away, while the crest of the hill to the east was at least ten seconds distant.

Later, someone would ask, what do you mean “four seconds” and “ten seconds”? “It means more to you than saying 250 feet or 600 feet from Marilyn”. The speed limit is 35 mph, but we know that everybody is really going to go at least 40 mph. Forty miles per hour is the same speed as 60 feet per second. So, think of these measurements as the time before an oncoming vehicle will reach the intersection.

Actually, Marilyn would be able to see the top of a car coming up the hill on her right just before it crested and became fully in view. She world have about five seconds to accelerate and turn left before the eastbound car would catch up. Ten seconds of clearance to her left gave Marilyn plenty of time to get out of the westbound lane. Those are the numbers that set the east-to-west width of the aerial view of our “movie” looking down at the crossroads.

I said to the jury that this movie would look as if we are an eagle gliding above the crash site. We can look down from high above. We can even swoop down for a closer look later. Looking down at the computer graphics scenery, there were small dots – the tops of mostly bare trees. Jason’s truck entered the scene climbing the hill from the east. Marilyn’s Grand Am came up from the south on CR333 and stopped that the edge of highway 44. The “movie” showed no cars coming from the west, because we know none could have been there at that moment. If there had been another car so close, it would have been involved in the crash, or have seen it, being just behind Marilyn.

Looking down from way up above, you could see what both vehicles are doing. However, from experiments with other cars like the Grand Am I know that it would take about four seconds from the time I pushed the gas pedal firmly until the car was in the eastbound lane.

Watching the movie scene from above, we can not see Marilyn looking first to the right, west, as the truck comes to the top of the hill from Smithtown and goes quickly down the hill. After some hesitation, while we think she was looking to her right, we see Marilyn’s car begins moving, slowly at first but quicker as it turns into the eastbound lane. The truck is there already - its left corner hits the left front wheel of the Grand Am. Locked together briefly, both vehicles slide to the west. The momentum carries the Grand Am onto the south shoulder of SR44, and the truck pivots and come to rest almost perfectly cross the road.

Figure 1 Scene drawing

To show the whole scene, the screen showed the eagle’s view looking down from several hundred feet above. The vehicles were just little rectangles on the map of the roads. “Let’s do it over but get closer.” The “eagle” moves down so that the crossroads just fill the screen. Now we are close enough that the jury can see that the car looks like a car, and the truck looks bigger and has sharper corners. Even though the centerline paint markings were faint that day, our movie shows the center of the road clearly enough.

Now the jury saw the action in more detail but the crash picture was over quickly. We ran the same scene at “real” speed so that the watchers would realize how quickly a crash is – not at all like what they see in movies or television. Then the scene was repeated in slow motion several times. Now I asked the jury to watch as the left corner of the truck crossed the highway center just far enough to put the truck bumper right onto the left hubcap of the Grand Am. The sharp cornered bumper did not do much damage to the wheel. Instead, the bumper continued rearward to engage the back part of the wheel opening. Then the major part of the mass of the truck was bearing against the major structure of the Grand Am. Car-people call that part the hinge pillar. The hinge pillar is the car body structure at the front edge of the door. It is connected to the opposite side of the car by the strongest part of the car body - the base of the windshield frame. The mass of the truck is greater as is the impact speed. The truck forced the Grand Am backwards violently. Violently means the change of speed of the Grand Am was a lot. It stopped moving forward at about ten mph, and then it moved back at about 20 mph.

The crash was not violent for Jason. He experienced a milder change of speed. The truck slowed from about 40 mph to about 20 mph. The rim of the steering wheel probably bruised his chest.

The jury did not see those details in the movie, nor did they see when the windshield of the Grand Am slammed back into the forehead of the girl. I described that by smacking my forehead with my palm. CSI did not have our computer technology advanced to the point that we can realistically show the motion of the people inside the vehicles that crash. That will take years of development to come. Now days, engineers do that on a high-end personal computer

With the computer simulation, we can add something very important. We will show how easily the truck driver could have avoided this crash just by staying in his lane.

THE EAGLE SWOOPS DOWN

So far, our side has been able to persuade the judge that our movie is based on well known physical motions anchored by the evidence measured in the real world or captured from photographs. The defense lawyers objected to this display of computer- generated motion pictures. Their side does not have the technology at hand to do the same. Judge Grimm overruled them.

I continued.

“We showed the path of the truck. We will now show what the truck driver should have seen. We cannot show why he did what he did. The Smithers expect that their lawyer will do that in his cross-examination of Jason’s employers.” Pause, breathe, and let that sink in.

“Now folks, so far you have had the eagle’s eye view looking straight down. Now imagine that this eagle swoops down close behind Jason’s truck as it comes over the hill. Imagine that one of the back windows of the snack food truck is broken out so that the bird can see over the driver’s shoulder.” My electronic draftsman presses more buttons and the computer screen shows what could be the eagle’s view as it dives down to the east and swoops westward low behind the truck as the truck comes up to the crest of the hill. At the crest, the eagle can see the Grand Am down the hill, coming to the right-hand side of the intersection. The trees that appeared as dots from above now look like toothpicks bare of their leaves. The Grand Am is far away, kind of small, but in plain view. The “movie” is paused after I waved to Barry.

“Now”, I tell the jury, “Watch when the eagle flies through the back window and perches on the driver’s shoulder.” I hold my breath. No new objections. Praise the Lord. Let us go on.

The simulation continues. The jury can see the roadside trees flashing by to the right, and the painted road centerline on the left. Now they can see the Grand Am begin to move out and turn, slowly at first – but not quickly enough. We show the simulation several times, drawing the attention to different aspects in view, as I describe it.

“Note how far away ‘we’ are when we see Marilyn’s car moving from right to left. See how far out in the street it is when you can tell it has begun moving. Notice that her car is almost perfectly in the (proper) oncoming lane before the truck reaches that spot. In addition, notice this, which the evidence clearly establishes – Jason’s truck veers slightly to the left just before the collision. We do not have the computer technology to show what happens inside these vehicles. If we could, we would have shown that the girl’s head tipped forward as she stretched her shoulder belt. Then the windshield A-pillar slammed into her head.”

I offered to show these scenes again for the jury, but I did not feel too badly that Judge Grimm sustained the objection of defense attorney Harangue who did not want us to replay this simulation more than twice. It does not matter. The jury’s eyes were riveted to the screen. After the objection, they gazed at Marilyn in her “Snow White” innocence, looking unconcerned.

I am sure our side won the case right there. Well, not quite. I still have to show how Jason could easily have avoided this crash. That is easy. The jury will easily understand two things that will be brought out later.

SUBCONSCIOUS MOTIVATIONS

Now Mr. Abrams was going to ask me some questions. We expected that I would not be allowed to answer them. There is a thin line between offering expert opinion and just speculating. If I was accused of guessing or speculating in any answer, that would draw an objection. I said that I had read the transcripts of the depositions or two people from potato chip offices in Smithton. Abrams did not ask me more. He said, “We’ll hear more about that later.”

Abrams had gone through the trouble of getting some of the background of Jason Jones from his employer, Harold Bloom and his dispatcher, Harvey Davis. Their reluctant testimony made it clear that Jason had a problem with his attitude toward others, and especially with anger management. The company laid him off for two weeks because of complaints from workers at the convenience stores. His surly attitude about doing nothing more than just unloading the snack foods was the basic problem. It was suggested that Jason was a party-guy. Getting through with his route quickly was probably the reason for not being helpful with stocking the shelves. It was understandable that Jason would hurry to be able to end his workday early.

Now, I had to tie that into the “so what”. Abrams needed to put emphasis on my credentials, so that I would be permitted to say it.

Q: Carl, you told us earlier about your work for the legal staff of General Motors when you worked at Chevrolet. You said that GM tried to put the blame of crashes of the Corvair onto the driver. Can you explain that?
A: Sure. We did some work just going out around Detroit and Southeast Michigan following all kinds of drivers. We did more than just watch them. We put a movie camera in our back seat looking out front, with a large speedometer fastened to the top of the dash. That way we could show that we kept following the other car at the same distance, at the same speed. We wanted proof of how fast people wandered around curves, for instance.
Q: What did you need that for?
A: Some folks slowed down for a curve and went around the highway curve in a jerky manner. They were sort of making a polygon out of a circle. It could get so bad that the car would sort of bounce from the centerline marking over to the white line at the right. Other people did not slow down. They went around the curve smoothly, staying in the center of the lane. This was on the large curve on the highway at speeds of 30 to 65 miles per hour. We made other films to show how people went around street corners, in turns to the right or turns to the left. Here the speed was important so we could stage this stuff where one of our guys would have a hidden radar gun to measure the speed of approach more accurately. We also asked ordinary people, not test car drivers, to drive around the GM Proving Grounds. We would arrange for some more strenuous driving situation to see how they would react to an emergency. There was a bunch of scenarios – the best now known as the “Accident Avoidance Maneuver” used even by Consumer Reports. The purpose of this was to be able to say, in court, what we have observed about how people do behave.
Q: Mr. Thelin. How does that experience help you today?
A: Well, it helps me to understand how and why Jason would have made his truck hit the Pontiac at a shallow angle.
Q: How does that work – what do you mean?
A: If I may, I would like to make diagrams on the blackboard.
Abrams directs his eye toward the defense table …
Q: If there is no objection, you may.
A: (standing at the board) Here is a circle. Say that is a 20-inch diameter steering wheel of a truck. We have a white mark on the top, as we did in the cars shown in the chase-car movies. Now, say that the steering wheel is wiggling back and forth about an inch either way. That is not unusual for a truck with a solid front axle. A turn of one inch is six degrees. That is the angle between the minute hand and the hour hand at eleven-fifty nine o’clock. Let’s assume that the driver turns the wheel to the left only two inches from straight ahead. With a steering ratio of 24 to 1, that would turn the front wheels about a half a degree. That is barely visible. Remember that six degree is 11:59 on the clock. We say the truck was going 40 mph. That is reasonable going down a long hill. That means the truck moves about 60 feet every second. In just two seconds, it goes 120 feet west. At that angle, the truck also goes 1 foot to the left. Two seconds is a typical response time to make a decision.
Q: What? What about two seconds?
A: Well, we know that Jason had plenty of time from the top of the hill, to see the Pontiac on the side road. He was anxious to make his rounds. He could hope that the driver would wait for him to pass by. I am pretty sure that Jason would have hated to follow Marilyn if she had turned right, before he got near the intersection.
She didn’t need to wait. We know now that she would turn left into the other lane. Now, our reconstruction shows he could have slowed down just by letting up on the gas pedal to give her more time to cross the road, if that was what she was going to do. He did not. He could have edged the truck to his right to give her more space. However, it appears that he did the opposite. He let the truck edge to the left, to teach her a lesson.

Here I had to move on quickly, not pausing for the expected objection.

A: (continuing) Marilyn probably did not see the danger early enough to veer more to her right. If the impact had been a tiny fraction of a second later, the truck would have barely sideswiped the Pontiac. Instead, it pushed the Pontiac front tire aside and caught on the car’s hinge pillar.
Here, I made a sketch on the white-board to illustrate the action on the tire and the location of the major impact between the truck bumper and the Grand Am.
(continuing) I have already told you in detail what happened after that.
Q: Mr. Thelin. Do I understand that you believe that the crash details support your opinion that Mr. Jones could have easily avoided this collision?
A: Yes.
Q: Do you have an expert opinion based on the evidence available to you that Mr. Jones deliberately steered his truck leftward to throw a fright into Ms Smithers?
A: Yeah, I think he wanted to teach her a lesson – not to pull out ahead of him.

Wow! We got it in. That would be the nail in the coffin. I thought we convinced the jury that this was not the typical intersection accident.

PRE-EMPTIVE TALK

We still had to rebut the arguments that jury would hear from the defense during their portion of the trial. Our team needed to pre-empt their claims. We knew that the police report and even the newspaper reporter assigned the blame for this collision to Marilyn. They stated that she was crossing SR44 from north to south when the truck hit her car broadside before the truck driver could do anything.

We knew that the potato chip company based their defense on that police report. They named the police officer as a defense witness. He was not in the room yet but we were sure officer George Kozlowski was going to be available to back up his report. His presence was not necessary. Normally, the report of an impartial police officer is adequate evidence. The defense did not need to call him to the stand unless we argued about the report. If I did not offend George by making him sound stupid for his mistaken conclusion, he probably would not demand to rebut me.

Here is how that went.

We knew that Peter Piper people had submitted the police report to the court as evidence. We surprised them by using their materials. These were pages enlarged to fit 30 by 40 display boards. The jury saw the front page of the report with mostly raw data. Another page showed the officer’s narratives and a third page showed the diagram of the scene, as he saw it. The jury could see that several boxes are checked. The explanation for the check marks was in the codes on the second page, which indicate that Officer Kozlowski determined that the collision was the fault of a young woman who pulled her car out and surprised the truck driver.

Our side was smart to introduce this material before the other side could offer their explanation. The jury already knew, from the opening statements, that Abrams claimed the police report was incorrect. Abrams begins to ask me about my expert opinion of the report and its conclusions.

Q: Mr. Thelin. You have examined this report closely, correct?
A: Yes
Q: Do you have reason to believe that it is incorrect?
A: Yes
Q: Why is that? What did the officer do wrong?
A: Officer Kozlowski did not do anything wrong.
The buzz increased in level.
Q: Well now – why do you say that, if the report is incorrect?
A: He had to do his job under difficult circumstances. There were many cars around when he got to the scene. Many of the cars and trucks on SR44 could not choose to use a detour. The officers had to contend with a crowd, a wrecked car and an injured girl. The first priority was to attend to the injured. Then he had to clear the road and then to get traffic moving again.
Q: Mr. Thelin – is that all he had to do?
A: No, the officer assumed that the girl in the car only unconscious. Later, when the ambulance and the fire trucks arrived, he learned that the injury might be more serious. People can die from a hard knock on the head.
Q: What does that mean to him?
A: The police department rules say that if there is a possibility of a death or permanent injury within 24 hours, he must treat the crash with a full work up. A full workup for the record requires taking many photos. It requires recording interviews. He must mark and measure things like the point of impact, the points of rest, and the beginning and end of all related tire marks. The officer must do all that before he can have the vehicles removed. Then he can let the traffic through.
Q; Do you find that Officer Kozlowski failed to do that?
A: No. At first, he would have been the only officer at the scene. Shortly afterward he had Emergency Medical Technicians - EMTs, firefighters and tow truck operators milling around, along with the crowd and the angry potato chip truck driver.
Q: Angry truck driver?
A: Very much angry. Several witness spoke of the anger of the truck driver. He was blaming the girl for wrecking his truck and making him late for his route. He even screamed to the officer that it was the girl’s fault for pulling out from the stop sign at the last minute and surprising him with no time to avoid her. All of that information was in the supplementary pages of the police report.
Q: Well. Why didn’t the officer make note that there were marks on the road about 25 feet up the road to the east? Shouldn’t he have noted something there?
A: I can imagine that there were cars and trucks parked all along the shoulder of SR44 and even some on CR333. Beside, the other responders and some of the bystanders were milling around, if this scene was typical. Based on what Jason said, Kozlowski had no reason to push through the crowds and go looking for evidence way up the road. What is tragic about this is that the officer did not get to meet with the parents of Marilyn. Their home was far enough away to the south of the intersection and somewhat over a small hill so that they had no reason to go to the corner. There had been numerous collisions at that spot over the years they lived there.
Q: What does that mean?
A: The Smithers did learn about the collision when the newspaper reporter, David Johnson, came to the house later. He got the girl’s address by peeking over the officer’s shoulder at the driver’s license. After discovering that their daughter had been hurt and was taken to the hospital, the Smithers went directly there without stopping to talk to the police.
That was not good. The parents knew that Marilyn would not cross the highway. They were certain that she was careful about turning left at this dangerous corner. They did not find out that the police and the newspaper story blamed Marilyn until the saw the next issue of the town newspaper a week later. After they saw the story about the ranting of Jason Jones, they told me that called you, Mr. Abrams.
Q: Well what happened to the report the officer made?
A: Your preliminary report to the court was the first thing that alerted the police department that we claimed the report was wrong. That was months later, as you know. I am sure that the police department became concerned about that. Until now, they probably did not know that I would not say that their police work was sloppy or bad.

JUST A LIGHT BEATING

At that time, the defendant’s attorney saw that there would be a problem. Could they convince the jury that my story was baloney, and the police report was precisely correct? They saw that they might not want the officer on the stand to back up his story. First, the cop would be relieved that I did not fault him. Second, if Abrams was kindly to the officer on cross-examination, the cop just might agree with the conclusions I had just made.

The only hope for the defendant would be to beat me up when they cross-examined me. They could hope to get me so upset with tough questions that I would bad-mouth the cop. If the officer heard that I did that, then he might cooperate with the defense by making a strong defense of his report.
In the Smithers case, I just got a light beating. Mr. Harangue is a gentleman. I have faced a few lawyers for the other side that I liked, and I sensed that they liked me, as a person, too. Harangue is a good lawyer, working defense for a large company. He is too smart to beat me up badly in front of a jury of mostly rural men and women. He has seen the reports. He knows of the good reputation of the CSI firm. He also knows that I did a good job of making the jury like me as a person. Beating me up under those circumstances will earn me some sympathy. That would not be good for his team. I will not take much time to tell you about my cross-examination by the defense.

WHY I DO GET BIG BEATINGS

Sometimes, when people ask me what I am doing for a living I say that I fight dragons for a living. Usually the dragon wins, but sometimes I win. The dragons are the big car manufacturers with large staffs of lawyers and experts. When fighting with the big dragons, I get a real beating. I get beat up good on cross-examination. When a lawyer for the big firms asks questions designed to make me look stupid, that hurts. He wants to convince the jury that I am making up my story. In some cases, the beating is a knockout. I hate it when the jury has been convinced with trickery that I do not know what really happened. I hate it when the lawyer says, with the sound of great authority, that I just do not know the true cause of the injury.

The auto companies really want to work me over because I specialize in Products Liability cases alleging defective design of the safety-related aspects of cars and trucks. Loosing a case about defective design of the vehicle means that all of the others contain the harmful defect. This opens the company for many similar suits – with the precedent.

A design case is much worse than a case that alleges that there was a bad day at the factory. That is called a manufacturing case because we are claiming that just a few cars were assembled improperly or damaged elsewhere. Companies have good reason to settle such a case quickly.

General Motors has a real grudge with me because they see me as a turncoat and a whistle blower. I once worked with the GM Legal Staff. Their lawyers and other engineers like me were defending the allegation that Chevrolet people carelessly designed the Corvair so that it could become suddenly and unexpectedly uncontrollable. Worse, plaintiffs alleged that Chevrolet management knew this but put the dangerous Corvair in the market anyway. That is bad news. Such a claim, if proven, would make General Motors subject to high cost punitive damages – big dollar awards.

I was enthusiastic, at first, to be defending my employer. I did know a lot about vehicle handling, and could write. My bosses assigned me to read everything we could find that Ralph Nader had discovered. GM was afraid of what might be used against GM in court. Unfortunately, for GM, reviewing every story or report that we knew or suspected was in the enemy’s hands, backfired.

Many Corvair cases involved a spinout on the road where the car overturned. The GM defense was that the driver was at fault for pushing the Corvair too hard. I agreed with Nader that stupid driving does cause most accidents. Worse, for GM, I agreed with Nader that poor design of automobiles would make the resulting injuries worse than they would have been otherwise. I did not last long at GM after I said that out loud.

When I am in a case with any automaker, particularly against GM, there are things I have to guard against. For instance, the carmaker brings in a hired gun from another city specifically to humiliate me. The lawyer is well dressed and polished. He speaks condescendingly to me. Early on, I have given my little speech about being hard of hearing. I need to read lips. This man frequently turns to address the jury so I can not see his face. I must ask him to face me so that I can understand the question. Please. This goes on several times. Eventually he walks farther from me toward the far end of the jury box with his back to me. He is still asking questions that I cannot understand. Finally, the judge speaks up. “Mr. (whatever)”, he says, “Please, address your questions to the witness. Speak up. The court reporter seems to be having a hard time following you, as well.”

The questioning typically goes like this if we have a largely rural jury.

Q: Mr. Thelin, how are you this morning?
A: Fine, thank you.
Q: Did you fly into the airport at (big city nearby)

A: Yes
Q: When did you come here?
A: Two days ago.
Q: Did you get a nice rental car to get here?
A: Yes
Q: Where did you stay last night?
A: At the (fancy hotel chosen by my client) nearby.
Q: Oh, that is a very nice place isn’t it?
A: Yes
Q: Where did you have supper?
A: At the restaurant where I talked with Mr. (plaintiff lawyer).
Q: They have really nice meals there, don’t they?
A: Yes
Q: Mr. Thelin. When you are done here today, are you going to fly home?
A: I hope so.
Q: Seems like a good life being an expert, huh? How much does attorney pay you?
A: I get $225 an hour when I am testifying. I also get my expenses paid. You know that.
Q: So, in one day of easy living you get to make thousands of dollars, right?

He does not wait for the answer. He walks back to his table to pick up papers. He made his point. Now the jury has less sympathy for poor deaf Carl. Stinker!

The dragon will also send a zombie after me. Zombies are the well-qualified expert witnesses who defend large automobile manufacturing companies. Big auto companies have the power to turn good men and women into zombies, as I call them. The power to do this comes from the ability to pay these employees much more than an ordinary engineer, or scientist, could expect.

These experts are people who tell the juries exactly what the company needs them to say. Big carmakers protect the career of their spokespersons. If our people expose him or her for providing false testimony, the company will keep that person well employed. A company-employed zombie will be encouraged to retired early if he is very successful. After establishing his independent consulting business, he would get even more employment from other dragons, not just the one he left.

The defense team always gets to bat last, unless the plaintiff can justify a rebuttal. In most cases after my testimony, the jury will hear from a zombie who will be much younger, holding at least one PhD, with years of experience in some fields of “research”. This well-dressed person will be brazen enough to talk about the “alleged” defect as if it were something the auto company purposely planned for some incredible reason – and he is proud of it. The jury has to wonder – how could Mr. Thelin not see that?

AN AIRBAG?

During our early conversations with the Smithers family they asked me whether it would have been better if Marilyn had an airbag in her car. The car in this case was a 1993 Pontiac Grand Am. That model has door-mounted seat belts for the front seat. The next 1994 model introduced a driver-only airbag. The front passenger side still had the door-mounted seat belt. I said to the family I could tell that the girl was using her seatbelt. Her knees were lightly bruised from hitting the lower dash. Her left clavicle and shoulder had the typical strap bruise. Her head swung forward and down as her chest rotated forward and leftward over the shoulder belt. The front top of her head hit the windshield A-pillar when that part of the car came inward and backward toward her. When the car slid back to the point of rest with its right side wheels in the ditches, it stopped quickly. Marilyn fell back to her right, with only the lap belt holding her on her seat.

Abrams asked this: Would the airbag available in the 1994 model have made a difference in her injuries?

My answer was emphatic: Of course. The air bag people designed the air bag to shield the head, neck and upper thorax from hitting the inside of the car. But, due to the angle of impact, Marilyn’s head might have slipped slightly to the left of center of the airbag. She should not have contacted the A pillar but maybe her head would have hit the roof rail above her door. She still would have had bruises on her knees and knuckles. Even if the collision rendered the girl unconscious, I am certain that she would have been able to talk before going to the hospital.

I wish there had been an opportunity to talk about this at the trial. For years, after I began this work in 1983, there were cases like this one, where I could say, with confidence, that an air bag would have provided better crash protection. However, the auto companies claimed that the available seat belts met the Federal requirements.

Auto company lawyers were able to persuade the courts in several states that the Federal Safety Standards preempted any claim that they should have offered more advanced technology.

The car companies strongly objected being forced to put airbags into cars. They had fought seatbelts, too. The manually adjusted straps installed in the early 1970s were poorly arranged and uncomfortable. Few people used them. Then, General Motors offered a few expensive cars – the big Cadillac, Buick and Oldsmobile trio – with optional airbags. From their perspective, that was smart. Adding optional air bags would raise the sale price slightly on those big cars. Sales representatives had no incentive to sell them.

Using this market failure they said that if the government forced car companies to equip every car with one or two airbags that would ruin sales in those markets. However, in 1985, Mercedes-Benz took a bold step of putting airbags in their European models. That broke the dam. Now buyers could see that these things were desirable. The rest is history.

VERDICT AND SURPRISE

Attorney Abrams’s closing argument was strong. It was easy – he had a very sympathetic client. No one on the jury wanted to find fault with Marilyn. The nature of this intersection was not like having a driveway coming out on the inside of a curve in the road. There the sightline is so short that anyone entering the highway would be taking a risk. There would be signs elsewhere on the road that warn of blind driveways. This was not a curve but someone like Marilyn had to shoot out when she thought the way was clear on her right where the sightline was short. It was reasonable for her to hope that someone coming from the left with plenty of view, would at least slow down for her.

The defense lawyer could do nothing but talk about the police officer’s report. He emphasized that the officer was there at the scene. Attorney Harrange said that should trump the CSI expert’s after-the-fact opinion. Technically, our report was based on detective work we did years later, he said.

The jury was back in an hour. The Smithers’ share was 2 million dollars after expenses and lawyer fees were paid. Her parents and siblings would use this money to oversee good care for her. Several months later, Abrams called the CSI offices to tell us that PPPC had appealed the verdict. They based the appeal on the judge’s obvious bias toward the plaintiff. He fell in love with our “movies” they said. They won the appeal. Secretly, I agreed. The computer animation did fascinate Judge Grimm. He allowed us to replay it several times. I expected the defense to object to those too-frequent repetitions

Therefore, there was no money for the Smithers after all. There was no money for Mr. Abrams. The CSI firm and workers were already paid. We work by the hour - win or lose. It would be a criminal offense for an expert witness to have any stake in the outcome of a trial. This is supposed to remove the temptation to fudge an opinion for personal benefit.

CSI had to plan to do it all over again. So did the potato chip company. Both sides would spend more money for a trial, which would end the same way, I believe. Recall that I told you earlier that automakers really hated a Products Liability case that might establish that there was a design element built in every one of some model car for a number of years that it was manufactured. The size of the jury award would balloon greatly if the plaintiff showed that the management knew of the defect but ignored internal advice to correct it. A finding of a defective design responsible for making worse the injuries in a predictable crash would make a very expensive precedent. Similar suits would be sure to follow.

The Peter Piper Potato Chip Company did not face that major risk. One bad driver was gone. We had argued their hiring and training practices were capable of being improved. PPPC national headquarters intervened. They rationalized that the case would go the same way even with an impartial judge. They chose to save the money for a good purpose. They offered to settle for the original amount. Nice company. Rare

POST SCRIPT
As I was preparing this story, I telephoned the lawyer who I call Mr. Abrams in this story. The case was tried in 1995, so I asked about him and the family. Even though I had changed their names and exact locations, would anyone be offended? No. Well, how is the care for “Marilyn” doing – did she move to a facility? “No. She died a few years ago. I was not told why. Sad – she was a beauty queen. Oh, by the way, he said, do not give the defendant so much credit for being nice. Their bean-counters made that decision.”

The PPPC was able to settle the Smithers claim without a danger of encouraging a large number of similar cases – such as class action cases involving dozens or even hundreds of plaintiffs. Imagine a case alleging that an ingredient of a new variety of bagged snacks was harmful to many who ate the snacks. For instance, if peanuts (or peanut oil) were a small portion of the unique flavor this would be poisonous to hundreds of allergic buyers. The company’s defense would be rigorous – the company could argue that they listed the peanut component of the snack food in the standard list of calories and other things required for every non-organic food.

There are benefits to size for plaintiffs and defendants alike.

Large defendants are industries, typically manufacturers of products like automobiles, kitchen and home appliances, medicine and medical devices. The advantage of size is inertia. The defense can stall for years and make the cost of preparation very high – encouraging the plaintiff lawyer to give up or settle cheaply.

Size for attackers of industry requires a collection of numerous cases. Examples are the tobacco suits, the Vioxx cases, and the asbestos litigation. The cost and work force required to defend hundreds or thousands of cases can overwhelm a company or even a whole industry.

===== 18123 WORDS Snow White

[02] BACK WINDOWS

A trial lawyer in Baton Rouge brought me a simple case. I liked doing this one it because the alleged defect was so clean cut. I already had done a bunch like it with more difficult trial circumstances. This would be a chance to focus on the overall design defect that plagued the entire output of the small truck industry.

John Merryweather, the fellow represented by the lawyer, worked in a touring carnival that had been set up in a large grassy field at near Louisiana, near the Gulf coast. Rain fell for most of the night after the carnival closed, as it often does near the gulf. The field turned into a muddy marsh. The next morning the crews packed the rides and displays to move to the next site. None of the trucks had a sleeper cab because the carnival workers slept and ate in their RVs. John was one of the truck drivers. John and others drove trucks like this to transport the carnival rides and displays in several semi-trailers.

THE INJURY

This case involved a large tractor-truck with one wide glass rear window at the back of the cab. It was like a pickup truck that did not have an extended cab. John’s truck had fairly new tires with good traction. Another truck and trailer were stuck in the mud. The moving manager asked John to use his truck to help pull the other fellow out. John attached a heavy chain to the fifth wheel of his own truck and walked back through the muck to hook the other end to the front frame of the truck that was stuck. John climbed back in and looked out the rear window as he began pulling on the other truck. It was difficult, even with the stuck truck spinning its own wheels. John used his truck to tug, then he relaxed the tension in the chain and tugged again He was inching the other truck out of the muck. Finally, he jerked on the chain too much. It snapped free of the cross member of the other truck. The recoil of the chain caused the hook at the end to spring back toward John’s truck. The heavy, fist-sized hook crashed through the back window and struck John in the forehead. He had a big muddy dent in his forehead and he was severely injured. I thought, after reading that synopsis of the incident that he was permanently brain-damaged. At the trial, I expected to testify as I had done before in similar cases involving truck back windows. I, and the medical expert, would talk about the cause and effect of a closed head injury that is so common in rear end impacts of cars and trucks without adequate head restraints. He would be mentally handicapped and require support for the remainder of his life, I assumed.

THE OVERALL ISSUE

In those days (we are talking about the 1990s) before most pickup trucks grew extended cabs or crew cabs, a pickup truck was a small version of John’s truck. In a standard pickup, or a big truck without a sleeper cab, the back of the driver’s seat was always located close to the back window unless the driver was short-legged and pulled the seat way forward.

When this type of truck-back-window case was common, only a few models of imported pickup trucks had head restraints on the front seatbacks. Domestic pickup trucks had short seat backs, so if another vehicle hit the truck from behind, the truck would accelerate forward and the rear window glass would slam into the driver’s head.

Tempered glass is strong and difficult to break unless hit with a sharp, hard object like a hammer. The back of the driver’s head is not that hard. Instead, the driver gets a blunt-force head injury from the window. In the case of Mr. Merryweather, I planned to use the same argument as for those rear impacts. I said it should be obvious that the rear window of a truck so close to the driver’s head should be resistant to penetration. Such a window would be made of two thin sheets of glass which are laminated with soft stretchable plastic, like the windshield of every car and truck

That laminated back window should also minimize crash energy by breaking before it cracks the skull since that is the federal requirement for the windshield. The sheet of glass and plastic would absorb crash energy by pocketing and retaining the impacting object, just as the front windshield does. To save money, the back window of a pickup truck only needs to be two-ply laminated safety glass with the penetration-resistant plastic surface on the inside. The Feds require the three-ply glass for the windshield to provide resistance to scratching on both sides. Such is not needed for a back window - note how many have frost-reducing grids and or tinted film on them.

On a big commercial truck rear window, the penetration resistance could even be the familiar chicken-wire-reinforced glass often seen in warehouse security doors. That glass breaks easily, and the chicken-wire stretches like loosely woven steel net. We all know that window is very resistant to penetration if the window is securely framed. We can live with this cheaper solution because, in most tractor trailer operation, the driver relies upon his big side mirrors.

THE TRIAL

Whoops! There was a surprise as I sat in the courtroom waiting for the trial to begin. I had never met the plaintiff but had heard of the terrible deep dent that the flying hook had made in his forehead. Imagine my surprise when a nicely dressed young man came down the courtroom aisle. His attorney introduced John Merryweather. On his forehead was a barely visible scar. He looked healthy, bright and middle-class wealthy. His lawyer said, later, that John had had a lot of pain and suffering during his rehabilitation, but now he was fine and making a better living than he had as a truck driver. So, it turned out that the case was just about the amount of money John would get for his pain and suffering - not for beating up the truck maker or the auto industry.

WINDSHIELDS

Normally, federal and state governments, world wide, require that only the front window of a vehicle to be made of glass laminated with a plastic inner liner. Many years ago, front windows were made of ordinary glass, like in older homes, which would break into shards like jagged daggers. In a frontal collision, an unrestrained rider in the vehicle flew forward into the windshield. The sharp edges and points of the glass severely gashed his face and head when his head broke partly through the glass, making a deep jagged pocket. Then if the head pokes all the way through the hole, and the wider shoulders do not, that person gets a necklace of jagged glass around his throat. That is really nasty, like being bitten on the neck by a shark.

For a while, in Europe, they thought that the obvious solution to shark’s teeth problem was to use tempered glass for the windshield. That kind of glass is thin and heat-tempered so that the surface is very strong and hard but brittle. The Europeans thought that frontal collision forces would distort the car-body window frame and break the glass into granules, which would fall away like coarse sugar crystals. The occupant would fly through the opening to safety, they thought. Of course, soon the statistics were overwhelming that ejection from the vehicle was far more dangerous than staying inside, as was the case of American cars with laminated glass windshields. This conclusion was so dramatic that the US, and finally everyone, standardized on advanced laminated glass called HPR glass – high penetration resistant. The strong elastic glass liner is very resistant to full penetration of a head. The force from an occupant’s head will break the windshield before it breaks the skull. You see many cars on the road with a big spider web on the windshield as evidence of a moderate frontal collision. To be effective at retaining the occupants in a crash, the windshield must remain secured to the car itself, even when the car-body window frame twists and deforms during a crash. Before HPR glass, when a windshield was made of normal (flat or curved but not HPR) glass, car-makers secured the glass to the car with a molded rubber gasket. The supplier made the rubber with grooves that gripped the outside edges of the glass and the inside metal edges of the window opening.

A car body bends front to rear, and twists side to side while running on roads less smooth than a billiard table. A convertible body, without the stiffness of a metal roof, often cracks the front and back windows just by driving normally on rough roads. The softness of the rubber gasket shields the glass from breakage during the normal twisting forces imposed on the car body. You may have assumed the black rubber surrounding the windshield was there only to keep rain from weeping around the edges. No, it was a good solution for a problem in the old days when many roads were poorly paved.

Nowadays, factories glue the HPR windshields in place with a thick strong black adhesive so that retention is optimum. It is almost impossible to tear the windshield free. You have to cut it away from the frame with a hot wire or sharp knife. There is another benefit to using strong adhesive to secure automobile glass. Today, all cars and smaller trucks have windshields and back windows curved like a portion of a cylinder, which makes them much stiffer than being just plain flat glass. Gluing the windshield and back window in place actually uses the stiffness of glass to make the car body more rigid in twisting.

FIXED SIDE AND BACK WINDOWS

Cars once used laminated glass in side or rear windows that were fixed in place by thick, soft-rubber grommets that protected the easily-cracked glass from car-body twisting. This stuff surrounding the window was unattractive, so an expensive car was enhanced with polished metal overlays. The whole package of rubber and metal trim was heavy. Finally, learning from the experience with the front window, designers switched to thin, lightweight tempered glass bonded into the frames of fixed glass side and back windows.

MANY CASES LIKE THIS INVOLVED ROLL DOWN SIDE WINDOWS

Once upon a time, carmakers used old-style flat laminated glass for side roll-down or swing-out windows. The inner and outer layers of laminated windshield glass are the like household window glass which will break easily and produce large jagged points and edges. A roll-up window in a door had the top edge exposed to impact. To reduce the hazard for anyone reaching through the open window, the edges were carefully ground to a shallow radius. That solved one problem but exposed another. The upper edge of the glass was also exposed to the elements – not just water but also to heat and sunlight – ultraviolet radiation. After long exposure, the laminate adhesive would turn milky white.

Another drawback: they are heavier, per square foot, than the surrounding sheet metal.

SWITCHING TO TEMPERED GLASS SIDE GLAZING

Switching to one-ply hard-tempered glass solved that problem. About that time, almost all side windows had a slight curvature when seen from behind, which made them stiffer, that way, too. The safety argument still rages. Now some engineers ask if laminated glass is better, for side and rear windows, despite its greater weight and cost. I see two benefits. Laminated glass breaks easier when hit by a person’s head, thus reducing the forces applied to the head and laminated glass will serve as a retaining net after being broken. Others argue that the difference in breaking force is not so important. The safety net effect is dependent upon secure attachment of the glass all around its perimeter. That is not easy to achieve with a roll-up window. The upper edge of a side window is not retained when partially lowered. Even when the window rolled is rolled up, friction is all that holds the top and sides of the window in the doorframe slots. Once upon a time, especially on convertibles and hardtops, shiny metal frames surrounded the exposed edge of such windows. That meant more weight so that option is gone.

HOW ABOUT HALF A SOLUTION?

Windshield glass is a three-ply laminate. The inside and outside layers are un-tempered “float” glass like your home windows. The sandwich layer is soft plastic, which is firmly adhered to the inside of each glass layer. There have been some attempts to use four-ply glass windshields. The fourth layer was another layer of plastic on the inside surface. Its purpose was to prevent the occupant’s head from being lacerated by the broken glass from the inside glass layer. That does work well, of course, but has a serious drawback, especially for a front window. Over the lifetime of a car, the owner needs to clean the windows hundreds of times – inside and out. A squeegee or a rag could easily scratch or gouge a soft plastic inner surface. Hard glass is much more resistant to scratches. That is why ice scrapers are plastic and not steel. Forget about four ply windshields - the law pretty much insists on crystal-clear three-ply HPR. A scratched inside plastic surface of a windshield pretty much ruins the purpose.

People fly or fall out of a side-window opening at the front and rear. I suggest using two-ply glass on the side windows and the back window, too. We compromise with thin hard, tempered, curved glass with a plastic layer on the inside. It is not so critical if you scratch side and back windows when wiping them down, or scrapping frost. Opponents argue that scratches to the inner surface will build up in time to make the side window less that perfectly clear. Well, so what? Is clear vision, even for the driver, that critical to the sides? If so, why do so many people have their side windows covered with dark tinted plastic. Back windows are tinted, too. True, the stuff put on the windows by after-market installers is not well equipped to function as ejection retention but the principle is the same?

Two other factors support the use of two or 3-ply laminated glass for the sides and back. In Europe and Japan, they advertise this stuff as “theft-resistant” glass. Yes, a thief can break that glass, but he can hardly reach through it to grab you or your possessions. Luxury carmakers advertise laminated side glass as a sound-absorbing selling point feature.

BACK TO TRUCKS

I started this talking about the back windows of trucks. As I said, in some truck cabs, the driver’s head was so close to the back window that it is dangerous. That threat is gone now because trucks must have head restraints on the front seats now, and some do on the back seats as well. That is one reason the extended cab pickup truck became more popular – it makes more room for a decent front seat with a good-sized head restraint. You even see workmen’s pickup trucks with a metallic screen covering the rear window where the framework is attached to the front edge of the load box.

Pickup trucks were once a cheaper vehicle than a sedan. MPV – Multi Purpose Vehicle was the initial description given by the National Highway Traffic Safety Administration to a pickup truck - really. There were no luxury features. A pickup (light truck in DOT language) was a vehicle designed to carry a few people and a lot of “vocational” equipment. Vocational meant the stuff was for work – a job. It should be obvious that many of the things carried in the back of a pickup could smash through the back window even on a panic braking stop, or worse, during a crash. You can see the need for shielding the back window or using penetration-resistant back window glazing. Now look at big, heavy trucks that are not SUVs. These are the flat bed trucks or stake-side farm trucks. Such a truck is the truck tractors with a fifth wheel used to pull semi trailers. Many of these trucks hare equipped with a sturdy panel covering the entire back of the cab. It is essentially armor against a load shifting ahead. Based on that, don’t you think all pickup trucks should have a laminated glass back window?

===== 2768 words back windows

[03] CRUSHED

When I tell people that I am a CxSI, I have to say, “That means CRASH Scene Investigator”. I do forensic work just like the crime scene people and the medical examiners. Sometimes a friend says, “I’ll bet you see lots of bodies”.

I am used to that kind of question. I say, “The police, firefighters and EMT people do. No, a CSI is seldom at the scene while the blood is still wet. I do my work after the dead and injured are gone. I may get to visit someone in a hospital, but usually I might see a living victim during preparation for a lawsuit, if at all.”

“Yeah, but you do get to see bloody messes, right?”

“Oh sure, sometimes I see the dried mess of blood and other stuff while I crawl around and look in a wrecked car. There is plenty of blood evidence, even weeks later. I wear latex gloves for that reason if I an inside. Heavy leather gloves, too, if there is a lot of windshield glass on the seats.”

“You have seen people crushed, too?”

“Well, no. I might see a vehicle that has been smashed badly into something I call a steel cabbage. When I get there, the firemen and the EMTs have already pulled the worm out of the cabbage, so to speak. That is not a pretty picture, but that is what happens when a car is caught between two trucks that collide.”

I think about that for a while.

“Oh, yes, there are cars that get crushed up against guardrails or bridge rails. I have even looked into a few cases where a sleepy driver ran his 18-wheeler right into a bridge abutment head on. Yeah, I have seen a few cars run over completely by an eighteen-wheeler. I have seen cases where a truck hit the car on the side and run it over. That car looked like a steel cigar. OK, have you had enough of that?” I ask the friend. He nods. Whew – the curiosity of some people – disgusting.

“I did have a case I will not forget. An older woman was crushed between her seatbelt and her seat back. I did not see blood anywhere in the car. That was one of my biggest cases but we did not win. It was also one of the longest.”

A SNOWY DAY IN DETROIT SUBURBS

I was beginning to have a good reputation testifying as an expert witness in lawsuits that claimed that a front seatback collapsed because of inadequate design. Trial lawyers get many of those cases. Almost all involved a car being hit hard from the rear. Some of them are borderline fraud – the whiplash thing that results in an invisible injury that heals itself after the lawyers wins some money with the help of a chiropractor. I may tell you about that kind of case sometime. Not now.

I am talking about the rear impacts that involve a hard hit from behind which pushed the car ahead so violently that the driver or passengers slide partly over the top of the car seat backs. Sometimes a person in front slides to the side into the gap between the seatbacks. Serious, incapacitating neck and head injuries result – some very permanent. One time, in a deposition for one case vs. General Motors, their lawyer asked what I would do to make the seats better. A few years later, I saw print advertisements for Buick cars where one of the features was seat backs shaped like a catcher’s mitt to cradle you. That is what I had suggested – as opposed to the slab-like seats and seat backs in the earlier GM cars. Those underlined words are exactly what I said.

Back to the story about the crushed woman.

I had the reputation – of being good on cases where the failure of a seat back caused a serious injury, and of being unafraid of General Motors. I got a call from a lawyer who worked for a large law firm doing plaintiff trials in Detroit. Like Daniel in the lion’s den – I thought. That was exciting for me– a case right in the heart of the lion’s den. This was a firm with many resources and this lawyer had plenty of experience and knowledge about working against an auto company.

I was even more intrigued to learn the scene of the collision was in the same county as the massive General Motors Proving Grounds, where I once worked. Talk about coincidences, one of the responding police officers was an employee of GM. I knew that name. Chip Reuben was moonlighting as a weekend auxiliary police officer. His dispatcher called him to the scene to make measurements and take pictures, because this was his specialty when working at GM.

THE CRASH

Four older folks were out early in the morning after a heavy snowfall. The sun was low, so the temperature was still below freezing. They were headed west on freshly plowed Maple Street from of the town called Walled Lake, Michigan. Morgan Roberts was driving the family Buick sedan with Betty beside him. The right front seat was set far back, because this car was normally driven by Mrs. Roberts with her tall husband on the passenger seat. The front seat were part of a package called split bench seats, so that each side could be individual adjusted. This day, her husband was driving because of the guests. Fred Grimaldi, a large man, sat behind Betty. Fred’s wife; Alice, was behind the driver.

Maple Street is a road without any cross street for a straight portion about two thirds of a mile long. The road is almost all straight with on gentle bend at about the halfway point. Most of the length was slightly elevated above the surrounding back yard of homes. When you think about it, you can see how easily Morgan Roberts could stop focusing on the road, having three others to talk with, and a long straight road ahead. When Morgan saw, at the last minute, that the shallow left bend was ahead, he touched the brake pedal to slow down. Black ice is invisible, but very effective at negating the brake effect. The Buick slid ahead, off the road, down the shallow embankment and dead centered the grille on a stout tree.

The Buick was a sturdy 1986 LeSabre. This car had good seatbelts – the best ones GM offered. The lap and shoulder each had a separate retractor, making them easy to put on and comfortable to wear, with low tension. The seat belts did perform well. In the back, Alice had the lap belt on, but Fred, being big, could not easily get it on. The crash was not very severe – if there had been airbags, I doubt they would have deployed.

Because the Buick slid so slowly through the snow directly to the tree, (steering was useless in that snow) everyone had plenty of time to brace himself or herself. That became a problem. Fred was big. He was heavy. He was strong. Naturally, he put both hands on the top of the front seatback. I told you that he could not get the lap belt on, but I doubt that it made any difference. Fred’s knees were within two inches of the lower part of the front seatback. As I said, I would not rate the crash as severe, but Fred was at least a 200-pounder. His pressure forward against the front seat was severe. Consider that GM engineers made that part of the seat strong to resist pressure from the front to the back during a hard impact on the rear of the car. The inboard edge of the seatback, as on most US-made cars, has no mechanism to prevent it from being tipped either forward or rearward. The edge of the seat back near the door can be equipped with a latch that will allow it to be tipped forward – if the split back seat is used in a two-door model car.

The seat back in a four door model is expected to stay upright. It did bend forward a little. The inboard edge tipped ahead a lot as the slab twisted when Fred pushed his knees deep into the soft aluminum pan and foam rubber inside the lower part of the seatback. He pushed his knees right into Betty’s kidneys, we believe.

Morgan, Fred and Alice were unhurt and able to open the doors and get out. Betty did not. She was moaning that she could not breathe. Her chest was squashed between the shoulder belt, with the still-locked retractor, and the unyielding seat back. Jerry Tims, a college-age man, was home studying when he heard the crash. Jerry came out to offer help after he called 911. He and Fred, both big men, pulled hard on the front seatback to bend it back away from Betty, so she was able to breathe. The EMTs in the ambulance took Betty to the excellent trauma center in nearby William Beaumont Hospital in Royal Oak. The ER doctors found many internal injuries to her upper and lower torso. The cumulative effect was that she died two days later. There were no facial injuries. Betty did not have a steering wheel in front of her, as it was for Morgan. The crash was mild enough that his head did not hit the steering rim.

That was a simple analysis, right? Yes. Mark Sloan, the lawyer who called me, and I both knew that if Mrs. Roberts had been in most any imported car, that cost about the same as this Buick, her injuries would have been much less. We knew we could prove it by comparing the front seat of a Volvo to the one in the 1986 Buick LeSabre. Hey, I had just bought a 1986 Camry, so I knew that those Toyota front seats were sturdy, too.

GM’S GUY LOOKED AT THE CRASH, TOO

Chip Reuben, the GM crash specialist, was at the crash scene to do his moonlighting work with the police department. Of course, with his background, was no surprise that he could make an excellent record of the details. Chip saw that the Buick had hit the tree with the center of the grille, which allowed a lot of deformation, but which did not engage many stiff components, except for the engine block. Chip measured the diameter of the tree and the depth of the penetration into the front of the Buick. He had the knowledge and experience to estimate the collision speed at about 18 mph – much more precisely than the average police officer would have done.

THE STRIP-DOWN

That forensic work was done when Mr. Sloan met me when I flew into Detroit. We went to a storage barn out in the countryside where his firm kept physical evidence from their personal injury and products liability cases. The Romano Law Firm was not involved early enough to preserve the whole Buick. Because of what Mr. Roberts had told them, they had purchased a replica seat from another wrecked 1986 Buick with the same seating equipment at the case vehicle. We took that seat to the law offices and placed it in their (well-finished) basement.

I took photos as I stripped the seat of the fancy cloth and foam rubber upholstery with a sharp knife to cut through strategic places. With pliers and wire cutters I pulled apart the hog-rings that fastened the fabric and padding to the seatback frame. Then I tackled the seat cushion and the base the same way. When I was done, there was a pile of expensive fabric and soft foam rubber on the floor. The seat was now all metal. It looked sort of like the Terminator monster after the Schwarzenegger body had been removed. The seatback frame gleamed with the soft sheen of aluminum. The base, however, contained steel perimeter framework, springs and the sliding rails that allowed the seat to be positioned fore and aft inside the car. The seatback was connected to the seat fame with two pivots at the bottom of each side edge. On the outboard side the connection was with a motorized pivot that allowed the angle of recline to be changed electrically. The seat bottom itself also had motors, gears and cables to allow the full adjustment to be controlled by fingertip switches, some of which controlled the six-way position of the seat: up, down, back, and forth and tilt front or back. I left the head restraint as it was. It perched above the shiny seatback. We intended to show that the padded rear of the head restraint was a good thing for Fred in the back seat when he slammed ahead and his arms buckled under the force of the impact.

The whole purpose of the strip and photograph routine was to show that this massive, attractive passenger seat was made like the entire array of General Motors 40-60 split power seat combinations. That mechanism was and is a popular piece of standard or optional equipment in large cars. The essence of the defect in that kind of seat is this: when a crash involving the front end of a car occurs, the passengers and everything else are thrust forward relative to the interior. I learned a lot about that when I first began testing car for safety.

EARLY LESSONS FROM PIONEER CRASH TESTING

In 1969 I went to work for the famous auto-safety research staff at Cornell Aeronautical Laboratories Inc., called CAL by most everyone in Buffalo, New York.

Up to that time all safety research was directed toward gathering information about car crashes to provide insurance companies and the National Highway Traffic Safety Administration (NHTSA) with statistics to use in developing countermeasures. I came to CAL from General Motors and Uniroyal Tire Company. I wanted to work with the famous Bill Milliken, well known for his pioneering work, beginning in 1953, that treated automobile control and stability (handling) as a science. With my background in chassis design and tire research, it was natural I would be assigned projects like that. However, the NHTSA, the major sponsor of auto safety projects had given up on the hope of coming up with regulations of car stability and control that would significantly reduce the number of crashes. Instead, we agreed that more progress could be made in research and development of automobile features to make it more probable that people would survive the crashes. In 1970, as a result of that change of emphasis, CAL tasked me to develop the full scale car crash testing facility for the laboratory so that we could be competitive seeking contracts for that kind of R&D.

COMPLIANCE TESTING

Our purpose at first was to crash cars headfirst into a concrete barrier at 30 mph. We placed recording instruments and high speed motion picture cameras all around to monitor the performance of cars without test dummies inside. This was called “Compliance” testing. Initially, the government was checking for compliance to the earliest safety standards:

FMVSS 204 Steering wheel rearward displacement

FMVSS 212 Windshield retention.

FMVSS 301 Fuel systems integrity

You might not understand the technical language of each Federal Motor Vehicle Safety Standards (FMVSS) numbered above. In plain language, it meant that the (212) windshield should stay in place to help restraint the unbelted occupant; the (204) steering wheel should not come back so far as to harm the driver; and there should not be more than a (301) tiny splash for gasoline under the hood. Soon, the NHTSA added FMVSS 219 – to limit the penetration of the windshield by the rear edge of the hood.

Those tests were run on empty cars – without a test dummy in any seat. In the early days, the government was just testing hardware.

RESEARCH AND DEVELOPMENT CRASH TESTING

Even before that compliance testing was done, engineers in a sister CAL department ran other crash tests for research. Their project was to compare the performance of different car body structures and occupant restraint systems – seat belts and airbags. CAL used early versions of test dummies with instruments inside for recording forces that might cause injury.

When they began crash testing cars with anthropomorphic dummies we found out a lot of surprising things. Some required the revision of safety standards. The NHTSA wanted the test car equipped with a family of dummies: father and mother in front and childlike dummies on the back seat. We also were required to replace the gasoline with a fluid that had the same viscosity but was not flammable. Crash dummies do not break easily, but they would burn. We were also required to have the car’s engine running at the time of the crash. NHTSA wanted to know how much electricity would be available to initiate the inflator used in the early airbags. The battery in most cars was mounted up front close to the radiator where it was vulnerable to being smashed early during the crash. So, the test protocol became even weirder. CAL people placed a small can of gasoline in a secure place inside the car with sufficient fuel pressure to keep the engine running for a few minutes after it was launched toward the crash barrier. We discovered that none of that was critical, after all. There was enough electrical power from the car battery and alternator to start the airbag inflation before the engine stopped and the battery exploded.

THERE WAS SOME REAL DANGER AT FIRST

There was another surprise - crushing a lead acid battery causes a lot of grief. The internal short circuit causes a big brilliant flash of an electrical explosion under the hood. Worse, from our standpoint, – the entire space under hood was sprayed with battery acid – mostly invisible to us while wet. Finally we convinced the NHTSA to allow us to drain the battery and fill it with plain water. Then our car airbags would be ignited with the sealed motorcycle battery placed in the trunk.

Now CAL was ready to begin research crash testing to help the National Highway Traffic Safety Administration learn how to make cars safer during a crash.

CRASH TEST DUMMIES

A crash dummy labeled Anthropomorphic is one modeled to measure injury-causing values. Other dummies are anthropometric. Those are scaled and weighted to resemble men, women and children of various sizes. The anthropomorphic dummy is also anthropometric and is stuffed with electronic devices to measure forces on the dummy during a crash. The government was not yet ready to apply standards that limited injuries until research was ready with some numbers to represent an injury. I will not tell you about the long haul of research by biomechanical engineers and medical people to develop those numbers.

RESEARCH CRASH TESTING

At CAL, researchers were using their powerful and reliable crash test facility to do experiments to find better ways of protecting the occupants of the front seats. Unlike the existing FMVSS Compliance requirements, these tests were designed to measure the effect on anthropomorphic dummies. All the Safety Standards then in effect were designed to measure and limit hardware performance in terms of forces and motions on the cars themselves.

While we did not have legally enforceable limits on injury force to test dummies, we could measure and compare the benefits of proposed occupant protection systems. In that circumstance, the crash did not have to be realistic to satisfy the opinion of any critic. It was meant to be an easily reproducible 30 mph crash head first into a massive flat faced barrier. The argument that the early “injury” measurements were not realistic also failed because the purpose was to make comparison – not to set standards.

A HOLE IN THE ROOF REVEALED ALL

When CAL ran a crash test procedures, it was much like the countdown to a launch at Cape Canaveral. High speed motion cameras were placed at a dozen or more locations. Some were attached to the outside of the car doors to peer at the dummies. We discovered that the expanding airbag enveloped the head of the dummy, concealing the exact motion. There was a camera located on a tower suspended high above and in front of the crash barrier. It gave us a top view of the crash. Why not cut some strategically located holes in the roof so we can see the top of the dummy’s head? Great, now we had a better idea of how far ahead the dummy went into the air bag.

Now we could see how stupid it was for NHTSA to require the back seat to be filled with a female dummy and two child dummies. The smaller dummies were “dumb” ones without instruments inside to measure forces. It made sense to have Vince and Mary on the front seats because adult-size made the crash forces a comparably stringent test of the driver and passenger restraint systems. Their big bodies contained room for the electronic instruments.

THE KIDS ARE MESSING UP THE TEST!

The hole in the roof revealed a serious problem with two Federal Motor Vehicle Safety Standards applied to the front seats. In the early days of the FMVSS, the dummies in the back had no shoulder belts to use. During the crash their upper bodies and arms slammed into the back of the front seat, adding to the inertial forces pushing the seat and the seatback ahead. Whoops. OK, ditch the family idea. There were no measurements taken to justify them anyway. Later we discovered that even in runs without the back seat dummies, we still saw the seats slide forward. Then we saw that the seat back slapped the back of the adult dummies with their own inertial forces. So the researchers at CAL got permission to weld the car seat tracks solid, and to reinforce the seatbacks to hold them in place. We were having problems with every kind of seats: a one piece bench seat, an individual bucket seat and split-back bench seats. Later, we learned that the car makers were doing that for their tests, too. Ah ha – they saw the problems as well as we did.

STOP THIS STUPID TESTING

This was an early lesson for me, personally. I learned something about the inadequacy of the majority of the early FMVSS. They were based on laboratory tests of the component themselves, not on any realistic dynamic test. Later, when I became the Automobile Safety Engineer at Consumers Union, I campaigned relentlessly to replace lab tests with meaningful crash test specifications. And, now that I am investigation serious motor vehicle collisions and testifying about the cause of harm to the occupants, I continue to benefit from the lessons of the testing in the 1970s. In the Roberts’ case the weakness of the seats was despite the fact that they were designed to comply with the following FMVSS:

Standard No. 207: Seating Systems. This standard established requirements for seats, their attachment assemblies, and their installation to minimize the possibility of their failure by forces acting on them as a result of vehicle impact.

Standard No. 202: Head Restraints. This standard specified requirements for head restraints to reduce the frequency and severity of neck injury in rear-end and other collisions.

That is what the FMVSS scope-and-purpose statements said, but actually those two had little effect in causing car companies to make better equipment. Those tests were simple but inadequate. The car seat to be tested was mounted on a solid test fixture base – not on a sheet metal as in a car floor. The lab’s machinery applied slowly increasing forces to various points of the seat, the seatback and the head restraint. It seemed to me that, if the seat did not collapse into a pile of junk, it passed the test. That test is sort of like carefully placing something heavy on a table. Letting it fall in the table would be a better test of strength.

NCAP TO THE RESCUE

These so-called FMVSS compliance tests meant very little for auto safety until 1979 when the National Highway Traffic Safety Administration began an experimental program of publishing crash test results. The cars and trucks used contained adult dummies and were crashed at 35 mph. The severity of crash effects is proportional to the square of the impact speed. These crashes were 36 percent more rigorous than the compliance test, which every vehicle was required to pass – or it could not be sold in the US. The New Car Assessment Program (NCAP) began to reveal to the public how many cars had the seat back slap the back of the driver and passenger. The worst performers were almost always the domestic cars.

Think about that. There were no realistic safety standards to meet. The majority of cars had only lap-shoulder belts with air bags. Until there were dummies equipped to measure chest and abdominal compression force, no one could say how much injury resulted from seatback slap. Surely it would be better if seats did not slide forward, and the backs did not flop forward.

Without any change of FMVSS regulations, the car makers got the message. As the years went by, I saw fewer cars, vans or pickup trucks with floppy seat backs. Today, finally, the seats are so steady that the National Highway Traffic Safety Administration now is able, again, to place child dummies in the back seat in order to get dynamic crash test data on child car restraints. (FMVSS 213) Now, if a child seat did fail, the kid would get some benefit from the padded back of the front seat. If, as in the old days, that seatback collapsed, the kid might fly over it toward the windshield.

With all that as a background, we though we were ready to take on General Motors in a trial with such a wide ranging issue.

There is good news in all of this. It meant I was equipped to tackle the Roberts case.

WE DID DYNAMIC TESTING

For the Sloan case, I went to automobile salvage yards to purchase two right front seats from 1986 model Volvos, Toyota Camrys and large Buicks. I stripped one of each model seat to display the structure and the attachment of the back to the base in the same manner as I did in the law-firm basement. These were put aside to use as exhibits in the courtroom.

I left the other three seats completely upholstered. We planned to use them in a test to demonstrate that the Buick seatback had less resistance to bending than the two others, despite that the imported seats were not so bulky in appearance. We wanted to demonstrate the hidden defect in the design of most individual seatbacks in American cars. Yes, General Motors, Ford and Chrysler cars were exactly alike in this manner. The folding seatback in a two-door car is certain to have this defect. Seats in many four-door vehicles also contained it if they were equipped with adjustable-recline seatbacks. These seats, called individual seats or split-back bench seats have the same weakness. They have a restraint only on the outboard side to limit the rearward or forward tipping of the seat back. The attachment of the seatback to the seat frame on the inboard side is always a simple pinned hinge joint. It has no resistance to being move ahead or back. The restraint for the outer edge will be one of several types:

1) A pinned joint with a latch and pawl to prevent tipping the seat back forward. This is the minimum requirement for entry into the back seat of a two door model car. The FMVSS requires that the seat back must be locked in place unless a knob or lever is used to release the pawl.

2) A pinned joint with a pawl and sector arrangement to permit manual adjustment of the angle of recline. The manual adjustment usually involves a lever on the outboard edge of the seat cushion or the seat back.

3) A pinned joint with a motorized mechanism that permits the push-button adjustment of the angle of recline.

4) An L-shaped bracket with no provision for adjustment of the seat back recline angle relative to the seat cushion. In the cheaper, base model four door cars, this chunk of steel replaces the hardware described above.

Our plan was to convince a jury that the Buick seat was so poorly designed that it was the product that allowed the injury to Mrs. Roberts. We could show them by comparing the crash performance of the Buick, Volvo and Toyota seats in circumstances like that in this case.

FINDING A LAB TO DO OUR WORK

Testing laboratories working with automobiles tend to be sympathetic to the auto industry – the hand that feeds them. Only a few crash research places would consider doing any work for the plaintiff lawyer industry. Even the ones associated with large universities are reluctant to risk their reputation of being friendly to the wrong people such as PI and PL lawyers.

Our job was to find some researchers who worked primarily with the United States and other governments. In a sense, they are already “on the other side”. Finding a lab like that was fairly easy. But, not many actually have access to a system to simulate crashes with real hardware. Crashing complete cars would not do because of all the other structural variables that can affect the crashworthiness performance of the cars themselves.

The way to avoid that problem is to test just the seat hardware in an environment very much like the inside of a car that is crashed into a barrier, or into a stout tree, as was our case. We found a group of engineers and technicians who could approximate the time history of the forces applied to a car during the first tenth of a second of a crash. Yes – a tenth of a second. High speed motion pictures and force recordings show that the whole crash is really finished in 100 to 120 thousandths of a second. The rest of the time is when the wreck settles down. What you see in movies and television is extremely unrealistic. I made sound recordings near the crash barrier at CAL. It always sounded like a shot gun blast.

The testing firm had access to a lab used for research on military aircraft. The device used to simulate an airplane crash is the same as for auto crashes. It also can be used develop protection from the forces on airmen who are ejected from an aircraft. We call it the accelerator sled. That thing has a sled-like platform that rides on a pair of low-friction rails. Our seats, or even a whole car, could be bolted to the top of the sled. Generically, these things are called Hi-G sleds. The sliding part is parked in front of a huge piston that will push the sled away – sliding down the rails. The system uses a combination of compressed air and hydraulic oil to make the piston push very hard and very briefly on the sled. The acceleration of the sled, backwards, away from the front of the “car”, is the reverse of the deceleration felt by the vehicle during a crash. This works pretty well. We all know that it is only a simulation of a real crash. But, if you just want to test and compare many individual things like car seats, child seats or even seat belts, it is good enough, and very economical. So, that is what we are going to do.

THE RESULTS

We asked the people at the lab to go out to local junkyards to get a car body from a 1986 Buick. They cut out enough of the passenger side to put on the sled for our simulation. They had the instrument panel, the floor and the mounting for the front and rear seats, as well as the B-pillar on which to mount the D-ring for the shoulder belt. The “car” would not be damaged, so it could be used with all three competitive seats, we hoped. General Motors made a big stink about how we modified the Buick to attach the Toyota and Volvo seats to the Buick floor. Come on – we’re not stupid. We reinforced the floor enough to benefit all three seats.

Next, we had to see how well the crash would be modeled on a genuine crash of a big Buick dead center onto a tree of about 12 inches in diameter. Obviously, we could not make the crash simulation exactly like the complex dynamics of a real car body crumpling like that. But, hey, we said, this is a test of comparison – all three seats get the same simulation. Another division of the contract lab had experience in reconstructing real automobile crashes. They provided the data upon which we would model the crash force on the sled. The military dummies were anthropomorphic dummies. We did not use their measurements. Our need was solely to show how the seatback and seat belt were able to trap the torso of Mrs. Roberts.

A fifth percentile female crash dummy was placed on the front seat and belted with a GM type lap and shoulder belt. “Fifth Percentile” means that only five percent of all women would be smaller than the dummy. That is a small dummy used by the air force to simulate small female flight personnel – really tiny, like Mrs. Roberts. We put a big guy on the back seat – a 95^th percentile fellow, like Mr. Grimaldi. This dummy had only a lap belt available in the Buick. We used masking tape to hold the big dummy’s hands on the top of the front seatback – one palm on either side of the head restraint. His arms were straight but we knew they would fold easily in real life.

This test crew did not have access to the abundant inventory of cameras I had when I was at Cornell Aeronautical Laboratories in Buffalo. These people used a combination of high speed film cameras and medium speed video recorders so we would later see what was going on during the collision. A nice thing about sleds is the ease of attaching cameras onboard. The other video equipment is not so rugged that is could be placed on the sled (now days it is).

WE RAN THE TESTS

Before we saw the high speed film and video, we saw there was already plenty of good data on hand. Seat track interlocking channels under the seat base allow for adjustment. They we peeling apart at the back end - mostly on the outboard side, as expected. Second, the inboard side of the Buick seatback was deformed forward much more than the outboard edge. Looking down at it, you could see it curled a bit toward the outside. There was plenty of visible evidence that the big guy’s knees did dig into the back of the front seat.

As we knew, the other seat backs were visibly much better. Comparison of the seat tracks was impossible because of the changes we had to make in the floor mounting. However, the Toyota seatback bent less than the Buick, and it was bent uniformly left and right. The Volvo seat was marginally better yet.

And the pressure of the deformed Buick seatback against the dummy representing Mrs. Roberts was just what we expected. The lap and shoulder belts remained very tight across the abdomen and chest on the dummy.

NOW WE ARE ALL SET FOR A ROUSING TRIAL

You might think that the General Motors defense team would have folded after seeing our sled test evidence. During pre-trial discovery we said that we would bring all the seats into the courtroom with the films. The jury would see the massively upholstered Buick seat with the slim imported seats, and compare them with the naked skeletons. They would hear about the autopsy reports describing the location of the strap-like bruises on the woman who died from the internal injuries.

Well, no, it was not going to be that easy. GM ran tests, too. They have much more money and more elaborate test facilities. GM did not try to do a comparison tests to refute the idea that the imported seats were sturdier. It seemed that they assumed that the seats would deform as we said they did

General Motors ran a full body buck which is an empty shell of a complete Buick car body, not a half shell like we used. They ran a very realistic crash simulation. Their attack was against the victim. Their interpretation of the injuries was to claim that they showed it was Mrs. Roberts who caused the injuries to be so severe as to kill her. They were going to tell the jury that the woman had positioned the shoulder belt under her right arm so that it would ride lower on her torso – for riding comfort. That, they said, would put the pressure lower on her vulnerable abdomen, and also cause the higher belt loading that made the bruises.

OK. Now we were preparing for a real fight in the courtroom. We were confident that no witness would say that they saw that Mrs. Roberts had the belt in her armpit when they were attempting to free her from the wreck. Our side was not worried that GM would gain much by claiming that our sled test simulation of the crash was incorrect, either too harsh or not as harsh as it ought to be. I was pretty sure we could convince the jury that this was a comparison test, not a reconstruction of actual events.

MORE STALLING

I did not mention earlier that this case, like many of those involving a giant defendant like an auto company, will take a long time. Years, in fact, not days like it seems in movies. One of the advantages that the big companies have against most plaintiffs is the ability to delay them forever. General Motors has (well – had) billions of dollars to play with. Even a big-firm lawyer like Mr. Sloan does not. So, GM could snow his firm with paper work. I know they do that, because the GM legal staff did that to others when I worked for them. GM could also demand and schedule depositions of many potential witnesses. That worked to run up the bill for the plaintiff lawyer and eat up his productive time, too.

And it worked! Ten years after the death of his wife, Mr. Roberts threw in the towel. He had come up from his retirement home in the Florida a dozen times to be present for some legal activity. Usually it seems pointless to be there without any resolution. The trial had not been put on the docket yet. He just gave up. He said he couldn’t take any more of this travel.

What could lawyer Sloan do? He is not prosecuting a criminal trial where he could continue without a living victim. Having great evidence is useless without a plaintiff. Now, that is sad. A great crusading lawyer with a good case and a sympathetic client ought to do well.

As I said, “I fight dragons for a living – sometimes I win.”

===== crushed 6567 words

[04] DRAGONS

“I fight Dragons for a living – once in a while I win.”

“What do you mean by that?”

Dragons are big shot defense lawyers working for billion dollar Detroit car companies. My side is suing them for causing serious injuries to car crash victims. They are mean people and they can fight dirty.

Chrysler, Ford and General Motors were big, mean, and nasty dragons. For twenty five years I fought them working with trial lawyers representing plaintiffs – people injured by defects in automobiles.

In 1965, I began working with the General Motors Legal Staff to assist in defense of lawsuits alleging that the Chevrolet Corvair automobile was “Unsafe at Any Speed”. That was the title of the popular book authored by Ralph Nader, who was proclaimed as a consumer advocate. Trial lawyers seeking to win large compensation for persons injured by defective automobiles were invigorated by the Nader book. They formed the group then called ATLA – the American Trial Lawyers Association.

By 1967, I became convinced that I was doing the wrong thing.

1983-1976=16 years

After nearly twenty years I had gained enough expertise to qualify to assist the trial lawyers.

like Ralph Nader. Sometimes, not often, we won.

I didn’t hate them; I hated what they didn’t do.

Dragons are very-highly-paid executives who were infected by the NIH factor - Not Invented Here. Dragons hire expensive lawyers and lobbyists to avoid being told to make cars with needed safety features. Dragons and their industry association stymied the US government; resisting safety features like seat belts, head restraints and airbags until the trial lawyers and I made it too expensive to continue to stall. They asked for delays in government regulations claiming that the added cost of safety equipment would raise the price of new cars so much that used car sales would boom. French and Italian car makers dragged their feet even more, but most European and Japanese went along enthusiastically. Soon the Asians were leading the domestic car makers, who have yet to catch up.

How dumb could the big three be? Today, every car offers airbags – most have six or more because buyers want them along with other neat stuff.

I was a hot-shot design engineer at GM who knew that we made cars with handling flaws that allowed drivers to lose control and crash. Most cars had crappy brakes. Original tires were two sizes too small, so smart buyers forked over a premium for right-sized ones. Almost all our cars contained dangerous styling elements such as meat-cleaver shapes in the dash board. Some cars had column-mounted gear shift levers with sharp conical ends seemingly designed to impale the front passenger during a crash. The instrument panel had many similar pointed knobs ready to poke a hole in someone’s head. These flashy things caused crash injuries to be more severe than they should have been.

I recall, as a young engineer, telling my boss about these dangers. He told me “We don’t design cars to have accidents. If anyone gets hurt in an accident, they deserve to get hurt because they are stupid.” What an attitude. Dragons ignored their own pioneering car-safety engineers who were sequestered at the remote proving grounds.

I remained a design engineer of GM experimental cars until I volunteered to assist their legal staff. In 1965, trial lawyers deluged GM with cases saying that the Chevrolet Corvair was “Unsafe at Any Speed.” That little car had its air-cooled engine in the rear, like a grown up Volkswagen Beetle. It also had an independent rear suspension. The new 1965 front wheel drive Toronado was another novel GM product. Oldsmobile based that car on the XP-784 which I designed. So I agreed help GM lawyers to trick other lawyers with unethical practices because we had “to defend the right of engineers to innovate without restriction.” That motto persuaded me to help defend the company.

My job was to read stuff written by our enemies. I was a good writer, so I prepared rebuttals for that stuff to put in attaché cases we gave to the GM witnesses. Sneaky stuff – these lawyer-designated “expert witnesses” for the defense, were indeed qualified engineers. They had not worked on the Corvair itself, so they could not reveal anything about the development. Guys who knew what really went on were transferred to remote places. Opponents were told that GM, “…looked in all the usual and customary places for ___, and none were found.”

As an insider, I read that engineers at the GM Proving Ground and the Tech Center had advised the Chevrolet chief engineer to delay the introduction of that car until it could be redesigned to eliminate the dangerous handling qualities.

After letting this sink in, I mentioned these things to friends at a Christmas party. Two of my cases persuaded me that if the victims had been in any other kind of car, they would have survived. I said, in earshot of my bosses, that I wouldn’t mind if we lost those cases. Despite having a recent pay raise I was then declared “surplus” and transferred to a drafting room. That was humiliating and nasty, so I quit.

===== dragons 862

[05] FIRESTONE SUCKERS

“Daddy. I have to go bathroom.”

“OK, Katy – it's not too far. I’ll pull in at the next rest stop. OK?

“Daddy – go faster, I really have to go.”

Daddy recalled the sign that they just passed – 19 miles to the next so-and-so fast food rest stop before Flagstaff. “Hmm,” Daddy thought to himself, “I wonder if Katy can hold it for about 20 minutes.”

Looking in the mirror, he saw Katy with her chin on her arms folded over the seatback, with her head between her brothers. She was stretched out on top of the suitcases and blankets piled in the back. How nice, he thought to himself, as he often daydreamed, that when she gets into high school, Katy will have two big brothers to keep the bad boys from bothering her.

How nice it was, he grinned, that they got this new Ford Explorer in time to use on the vacation to see the Grand Canyon. It was buzzing along just great. Thinking that their new Ford had already put on at least a thousand miles and ought to be broken in, Daddy eased the speed from 70 to 80 mph. Even though the outside temperature was at least 90, speeding up should help the AC to keep the car cool.

And so it did as they flew along.

“Daddy, there is a buzzing back here.” Turning to Alice, beside him, Daddy asked, “What is she complaining about now?” Before his wife could answer, Daddy began to feel vibration coming through the rim of the steering wheel. It was not a tingle or a buzz, just a slow beating. There definitely was a thumping going on and he knew it must be way back behind him where Katy was.

Daddy listened for a noise, but there was only a tactile sensation – the vibration he felt in his hands. It was so low it was barely a hum. The hum grew louder, with some snapping-slapping-popping jolts thrown in. Just about the time he started to figure it out, the tire at the left rear tore apart right under Katy. Whap-whap-whap and then screech, as the tire tore apart and the back of the car lurched down at the left. The tire tread wrapped around the rear axle, seizing the wheel and causing the Ford to quickly yaw to the left, toward the sandy median.

“Oh shit!” Instinctively daddy yanked the steering to the right. "Oh Boy!" At nearly 80 mph, that was not a good maneuver. The Ford spun sharply back to the right, swerving off the pavement onto the rumble-strip and then it was dragging its front tire in the gravel. When the bare rear rim slid onto the soft asphalt rumble strip, it dug in and tripped the Ford.

The SUV tipped sharply onto the driver's side, slamming flat and smashing out all the windows. Then it sort of bounced up over the stiff left edge of the roof; came down from the short air borne hop onto the roof edge on the other side, and continued rolling onto right side and then nearly back onto its wheels again. Not quite – it flopped back with the passenger side on the gravel beside the highway.

The Explorer came to rest with all its glass gone, except the glued-in windshield. Thankful that they were belted in, Mom, Dad and the two boys were badly dazed, but alive. The unrestrained Katy had slid out the right back window opening when the truck was on its roof. She suffered a fatal head injury. Being squashed into hamburger by the side of a car landing on you is about as fatal as it can get.

AN EARLY EDUCATION IGNORED BY ME.

While I was still traveling by airline (too ugly an ordeal to do now days) for my job as a crash scene investigator, I flew to a city in the Deep South to meet a lawyer who would take me to the scene of an “accident”. Albert said he would pick me up at the airport and take me directly to the rural road where the collision occurred, and the whole trip would be short enough that I could catch the evening flight and be home that same day. Al waited for me at the baggage carousel. He was indeed a cheerful, friendly fellow who reminded me of Ben Matlock, the TV character played by Andy Griffith. Al had his new pride and joy parked across the street from the terminal, ands was obviously waiting for my comments as soon as we took off.

Figure 1 Ford Explorer (1991 model)

“Well, what do you think?”

Al, I am impressed. This is the first time I have been in one of these. It sure is a lot prettier than a pickup truck. The dash is nice and seats are even nicer. Did you just get it?

Yeah, I thought the Explorer would be better than my Taurus for running around pickup up people and stuff for evidence. Lots of room in back for junk.

The V6 engine seems quiet enough and the whole car is pretty quiet. You must really love it, Al.

Yeah. Smooth – except for the ride. It jolts you pretty bad on the bumps and pot holes.

I could tell that. Feels like the tires are kinda hard. Al, if you don’t like the harsh ride, and could use more room than the Taurus – why not get a Windstar minivan? That’s got more room and a nicer ride?

Oh Hell no. Vans are for women. I gotta have a macho machine like this.

THAT WAS MY INTRODUCTION TO THE NEW FORD EXPLORER.

The Ford Explorer began life as a 1991 model. It became a sales sensation when it appeared. It was really the first of the class now called the SUV – Sport Utility Vehicle. Car engineers already had a good description for such a pickup truck with a built-in roof over the back end. The US government had coined the expression Multi Purpose Vehicle which was applied to almost all not-a-truck vehicles that had the utility to carry a workman’s load as well as a few passengers. Guys like me thought of the Willys Jeep and the original Chevrolet Carryall as the MPVs. The acronym MPV stuck with all pickup trucks until the public adopted SUV for the same purpose. The hulking, lavish thing we call a Chevrolet Suburban is a grown-up child of the Chevy and Dodge Carryall tall station wagons from the 1930s.

When the explorer was introduced as a 1991 model the grille and front end sheet metal told that the Explorer was built with a fancied-up body Ford Ranger chassis. The Explorer two-door model, soon abandoned, was Ford’s replacement for the Bronco MPV that was based on the F-150 chassis with a way-too-big V8 engine.

FIRESTONE TAKES THE BULLET FOR FORD.

When the numbers of tires that failed on not-so-old Ford Explorers became large enough that number-crunchers at the National Highway Traffic Safety Administration spotted the bulge in their defect charts, Ford deflected the blame. They simply said that tires from Firestone failed more often than those from Goodyear, their other supplier. Firestone (Bridgestone actually) agreed that there might have been some differences in the adhesive -- glue -- used to bind the steel-belted tread onto the radial ply carcass and liner which held the air pressure.

This led to a wave of publicity put out by the lawyers eager to capitalize on Firestone’s misfortune. See the quote below.

The Firestone tire recall is perhaps the most deadly auto safety crisis in American history. US regulators on 16 October, 2000 have raised the death count to 119 (the death count has steadily risen from 62, later to 88 and 101 deaths reported on 9/20/2000). Experts believe there may be as many as 250 deaths and more than 3000 catastrophic injuries associated with the defective tires. Most of the deaths occur in accidents involving the Ford Explorer which tends to rollover when one of the tires blows out.

Trial lawyers chose to direct their attention to Firestone rather than to Ford Motor Company. Why? They know that Ford, like General Motors, has a highly skilled legal staff and the will to fight lawsuits vigorously. Firestone Tire Company was a weaker organization, still coping with being taken over by the Japanese tire company Bridgestone. In 1988, the Bridgestone Corporation of Japan purchased the Firestone Tire and Rubber Company. It was the largest investment ever of a Japanese company in an American company. Every lawyer knew that it would be easier to squeeze money out of Bridgestone/Firestone because the Japanese car makers had already demonstrated an unwillingness to use the dirty legal maneuvers that were a staple of the Big-three lawyers.

A RIDE AND HANDLING ENGINEER KNOWS THE REAL CAUSE

When I became an engineer designing experimental cars at the General Motors Engineering Staff, I soon learned how marketing overcame the engineer’s idealism.

In the 1950-60 time frame, a standard Chevrolet, such as the iconic the 1960 Bel Aire usually was seen with white wall tires – as seen below.

Figure 2 1960 Chevrolet Bel Aire advertisement

Let’s say that the original equipment tire was designated at 6.50-14 - a “C” sized tire.

This is portion of tire-size chart we used:

NUMERIC SIZES LETTER* METRIC P-METRIC 70 SERIES

6.50-14 6.95-4 C 178R14 P185/75R14 195/70R14

D (not used)

7.00-14 7.35-14 E 185R14 P195/75R14 205/70R14

7.50-14 7.75-14 F 195R15 P205/75R14 215/70R14

* The letter indicates the load-carrying range of the tire.

For about $50 one could get an upgrade set of tires two sizes larger: 7:50-14 - an “F” sized tire. I recall that we paid about $50 more for the white sidewall option, too.

Funny thing, after I left GM I went to Uniroyal Tire Division which was the primary supplier of OE tires to GM. Although I was a research engineer, I managed to learn that GM paid Uniroyal about $50 for the set of five white wall tires for the Impala. Cute, huh. You actually bought the tires, not just the whitewalls by checking off “WSW” on the options list.

That was not the only rip off. GM engineers, looking at the tire data charts, would have preferred the 7.50-sized tire given the load realistically expected in the Impala sedan. Nevertheless, the bosses declared the 6.50 size as standard. That is three load-ranges less on the tire charts. It was “safe” – just barely.

How could they get away with that? Simple – the government encouraged it with dumb rules. Engineer picked tires by calculating the weight of the empty car, and adding 150 pounds for each seating position plus 200 pounds in the trunk (or the load space of a station wagon). Cars were sold as five-passenger vehicles. Theoretically, that determined the design load as 950 pounds. That is likely to be several hundred pounds too little, especially when packed for vacation.

You know that in real life, most station wagons might carry more load than that, and some would have stuff on the roof racks. The Explorer was being sold when the government reaction to the 1973 Iranian oil crisis was the 55 mph national speed limit which began in 1974 and was repealed in 1995. Did that overloaded station wagon, or Explorer, run at 55 mph on the Interstate? Most of them ran much faster with less than recommended tire pressures. That is the reason you used to see so many “dead alligators” alongside the highways. That’s the recipe for overheated tires that lose the entire tire tread at high speed and temperature. Explorers with 26 psi were asking for it.

There really was a benefit to paying extra for bigger tires on your Chevy, or any other car. The oversized tire may be inflated to a lower pressure than the standard tire in order to safely carry the same load. The soft big tire gave you a better ride, and better road grip, to boot.

WHY DID FIRESTONE TAKE THE BLAME?

First of all, it was better marketing for Firestone to be nice to Ford. The real problem for Firestone engineers was that they knew Ford was at fault.

Remember that the lawyer thought his Explorer had a rough ride? It did because originally Ford specified the correct tire pressure, as recommended by the tire-maker charts – typically 35 psi for light truck tires.

But when owner ride complaints filtered back to the Ford brass, Ford suggested that owners reduce the tire pressure to as low as 26 psi. That was OK at low speeds around town, but clearly not good at interstate speeds in the southwest.

I’ll tell you another insider secret. It was easier for Firestone to take the hit for making a few million bad tires due to a defect in their manufacturing process. Once those tires were replaced, and the lawsuits were settled, the tire company survived.

If Ford had been forced to admit that their engineering decision was poorly executed, that would have been a serious “defective-by-design” matter that would have tarnished the entire company. That would have impacted Ford’s sales much worse than the hit taken by Firestone. I could have taken those cases, but my prior employment at Uniroyal ruled that out. Surely some lawyer would say I was getting even with Firestone. No really. My beef was with Ford people for not paying attention to their own chassis engineers.

Figure 3 an example from the newspapers.

===== Firestone 3118 words

[06] FUNNY BUCKLES

For this story I begin with the typical report-to-the-client-lawyer-to deliver-to-the-court format below. I addressed a report structured like this to the lawyer.

BACKGROUND OF THE INCIDENT:

On July 3, 1998, CSI, Inc. began to investigate the cause of the injuries to your client, Mrs. Roberta Robinson. On November 30, 1997, Mrs. Robinson was riding in the left rear seat, behind her daughter who was driving a 1995 Geo Prizm. They were southbound on Brightstar Road. The Prizm was struck a glancing blow on the driver’s side by an oncoming vehicle in which that driver had lost control. The side-swipe-like collision forced the Prizm off the road to its right, where it overturned in a shallow ditch. Mrs. Robinson was ejected though the broken-out rear window.

CONCLUSIONS:

It is my technical opinion with a reasonable degree of engineering certainty, based on the evidence available to me, that the severity of the injuries to Mrs. Robinson was increased by her ejection through the rear window during the overturn of the 1995 Geo Prizm. Her lap and shoulder belt failed to restrain her because of a design defect. That defect is the unnecessary complication of providing different seat belt buckles for the center lap belt and the left rear belt latch plate.

Excluding any other cause for her to be thrown from the belt and the vehicle and accepting her sworn testimony that she had in fact buckled the belt before the accident, it is more likely than not that the above described design defect was the direct cause of her being ejected from the car and of the injuries suffered by her during and after the ejection from the car manufactured by the defendants

EVIDENCE:

The evidence made available to me includes the following:

A copy of the police report.

A video tape of an inspection of the seat belts in the rear of the Geo Prizm.

A set of color photos of the same inspection.

A copy of the transcript of the deposition of Mrs. Robinson.

Medical records describing the nature of the injuries to Mrs. Robinson

DISCUSSION:

Here are some additional background details. Shortly after the morning rush hour, on a snowy day, Mrs. Robin Henry, the owner and driver of the Prizm, and her daughter Melody were going shopping. First, however, they drove to the mother of Mrs. Henry (Mrs. Robinson) to pick her up at her home for Christmas shopping. It was a half a block from the intersection with Brightstar Avenue, where they turned to the right. Not more than half a block away, they were hit by a pickup truck in which the driver lost control. He probably lost control when the rear wheels of the pickup spun in the slush. That caused the rear end of the truck to slide to its right, making the truck front end point across the two lane road.

Mrs. Henry reacted to the oncoming pickup truck by beginning to turn to her right. She was not quick enough. The truck did not hit the front of the Prizm. It did hit the left front fender with a concentrated impact near the airbag sensor. Both the driver and passenger airbags deployed, to the benefit of the mother and her daughter.

The truck did make deep gouges in the side of the left fenders and doors, forcing the Prizm to go fully across the shoulder on the right, and down into a ditch. The car went partially up on the far side steep embankment, where it dug its front end into the earth. That caused the Prizm to snap to its left, clockwise, overturn and slide backward on its roof to a stop at the bottom of the ditch.

The half-turn rollover itself was not very violent, but it did cause the rear window to shatter. Mrs. Robinson was first thrown forward toward the back of her granddaughter’s seat. Then as the car overturned, she fell onto the roof, with her back down and feet toward the rear. After the end-for-end rollover, Mrs. Robinson slid ahead (in the original direction of the Prizm) as the car slowed its backward slide in the ditch. She was deeply gashed as she came out through the jagged glass remaining in the periphery of the back window. It imagine this, think of the image, often seen in movies, of a shark coming at you with its jaw gaping.

Note this – there was not a fully-frontal collision with the pickup truck. No one inside the Prizm was thrown forward with such great force as to be injured. Mrs. Robinson’s other older granddaughter, Maryann, was properly using the lap and shoulder belt in the left rear. None had the typical welts on their body from loading the seatbelt straps with impact. The defect is that Mrs. Robinson was first thrown lightly to her left during the sideswipe, and then she was thrown around more laterally during the rollover, then toward the right front seat back when the front end dug it. So far, none of that made for serious injury. During the half turn rollover and end for end twist, Mrs. Robinson fell onto the padded ceiling. Her injuries did not include any broken bones. After the car came to rest, she did look like a tiger’s claws had raked her. Maryann remained inside the car.

It is common knowledge that the Geo Prizm sedan, sold by Chevrolet dealer, is a clone of the popular Toyota Corolla manufactured in California at the same NUMMI plant. I find that cars imported from Japan (Toyota, Honda, Nissan) all seem to share this arrangement. There is one common design latch plate and buckle pair for both side rear seating positions. The latch plate and buckle for the center lap belt-only position is not the same design. All three buckles are attached to webbing that protrudes from the bight, the tight gap between the bottom of the seatback and the rear edge of the seat cushion.

One short strap holds each buckle close to the seat cushion. The buckles for the left-side and center buckles are close together. The buckle intended for the center lap belt latch plate has the word CENTER molded into one side of the black plastic. If one attempts to insert the latch plate for left side or right side shoulder belt into that buckle, it would eject the latch plate because of a spring inside the buckle. This is intended to alert the consumer that the latch plate has been inserted into the wrong buckle.

This pop-out warning can easily fail due to false latching. That occurs when friction alone holds the latch plate in place against the force of the ejector spring. It is likely that an adult in the narrow back seat of the Prizm would find that borth buckles were almost under her buttocks, making it even harder to read the embossed warning, and holding the latch plate with pressure.

--- end of report ---

STICKY BUCKLES – in court

Years before, most Japanese cars and a few domestic cars from General Motors were plagued with claims of false latching to the front seat belts. All of these cars had the kind of belt buckle that stood up on a stalk at the inboard side of the front bucket seats. The buckles were grey or black. The push button release button was bright red, positioned at the top, inward edge of the buckle. The latch under the push button failed to engage the shoulder belt latch plate. The latch plate remained inside the buckle because of the accumulation of debris that wedged the plate. It was argued that the frictional false latch was the fault of the user who allowed food or drink to fall into the open slot of the buckle.

In earlier lawsuits, the plaintiff law firm demanded to review documents from the manufacturer of the seat belt buckles. It became obvious, during review of company documents that the company making the buckles knew of the problem. They had even sent letters to the auto companies that there was a problem. Originally, the buckle maker formulated red plastic containing cadmium as an additive. The factory, in Europe, had to discontinue the use of metallic cadmium, which is toxic. Later they discovered that the cadmium prevented embrittlement of the red plastic by ultraviolet rays of intense sunlight and heat. Without that metallic element, eventually, small flakes of deteriorating plastic, worn off the red button, filled the bottom of the buckle. That stuff prevented the buckle pawl (hook) from engaging the hole in the latch plate. Worse, the additional friction held the latch plate down in the slot so that the user was unaware that the seat belt was not going to hold them back in a crash. Eventually, the buckle maker reformulated the red plastic to end the embrittlement.

         The funny part of the story is that I can describe another cause of apparent false latching. In court I will carefully say that this would be attributed to constant pressure of the user’s buttocks against the latch plate, wedging it in the slot of the buckle. This was a problem unique to the back seat of smaller cars like the Geo Prizm.
         Domestic cars, including those designed and manufactured in North America by Ford and General Motors, such as the GM Buick LeSabre, have better seat belt buckles. When a person inserts the latch plate into any buckle on the rear seat, it will click and be retained. All three buckles in the back are exactly alike.
         The design of rear seat buckles on the Prizm is dangerous and defective in that the rear seat belt buckles for the left seating position and the center seating position are located immediately next to one another such that it is indistinguishable to the ordinary consumer as to which buckle goes with which belt. All three buckles are black. The one intended for use with the center lap belt has the word CENTER molded into the face of the buckle.

Mrs. Robinson attempted to put on the shoulder belt in the normal manner a reasonable person would use under the circumstances. There is difficulty of determining which buckle to use when a broad-beamed adult sits at the right rear. Both buckles sit low and very close to the hip. It was almost impossible for Mrs. Robinson to twist to see the sides of the buckles. The molded word CENTER has no color contrast. She could not easily see it in the shadow close to her body. Besides, it is difficult for a right-handed person to pull the latch plate over the torso with her left hand and press it down into the buckle. There is no rigid stalk to support the buckle, such as is found on many front seat buckles. Thus the person has the difficult task of feeling for and grasping the buckle with the right hand while pushing the latch plate into it with the left hand. Mrs. Robinson is a person who weighed 168 pounds in 1997. She was not familiar with riding on the left rear seat of this vehicle. Her daughter was the one who normally used it.

Based on the information I gleaned from the video tape and the photographs, I am convinced that the buckles in the back of this particular Prizm had indeed become subject to frictional false latching. In other words, the left rear seat belt latch plate goes into, but does not properly latch, the buckle designed for the center position. Because of the buttock-wedging noted above, the woman has a reasonable belief that she has buckled the seat belt properly. The latch plate fit into the slot to an extent and remained in the buckle. Thus, the user is deceived into the belief that he or she has fastened his or her seat belt properly while in fact the unlatched belt is of virtually no more benefit than no belt at all. During a crash or roll over, she would be lifted from the buckle and the belt would be free to slide out and retract.

It is also wrong, in my opinion, to depend upon a warning (the word CENTER) to cause a user to avoid a hazard. In this case, the hazard could be designed out of the product by using universal latch plates and buckles such as those used in domestic vehicles.

BACK TO THE TRIAL

I said all of that during my testimony at the trial. General Motors defense was simple. There were no marks on Mrs. Robinson to prove that she had used the seat belt at all. They said that large surveys show most passengers in the rear seat do not buckle up. Besides, they said, if the latch plate was jammed under her butt, it would be pulled out soon after the car was underway. The spring in the shoulder belt retractor would pull the belt up and out easily.

In the rebuttal phase, General Motors lawyers showed the jury a film that they made using a woman of the same size as Mrs. Robinson as a model. There was no sound on their showing. Normally no one uses sound in courtroom movies. Everyone in the courtroom saw that woman take the seat belt latch plate and insert it into the buckle. As soon as she wiggled slightly the belt popped out and retracted, just as the lawyer for GM said it would.

Our rebuttal of General Motors rebuttal was a disaster for them. The lawyer for our side had been able to get the judge to require GM to bring and produce the outtakes of the GM film. The judge agreed with us that GM had to show all the film – with the sound turned on. Showing the outtakes revealed that their female model made the same mistake made by Mrs. Robinson. Everyone could hear, in the background, the photographer tell the model not to sit on the buckle. We had argued that sitting on the buckle pinched the belt latch plate under the buttocks, preventing the shoulder strap from sliding out. So GM demonstrated that for us.

General Motors made another rebuttal that was weird. The experts for General Motors offered a justification for the Prizm design that I thought was hilarious, and I managed to show that jury that it was funny. They claimed that the center buckle must not be the same as the ones for the side. If it were, they say, one might put the shoulder belt latch plate into the center buckle, and then discover that the pushbutton was concealed between the strap and your hip. The buckle would be upside down, so to speak. They say that putting the latch plate into the correct buckle ensures that the release button is accessible on the side away from your body.

That is a silly argument. I do not know the real reason the Japanese car makers do that and I never thought to ask them. I do know from experience in a Buick LeSabre that the shoulder belt latch plate can be put into any buckle even if that one is twisted on the strap. So what? If my forefinger cannot press the button on the outside, my thumb can easily pop the button on the inside. What were they thinking when they made such a silly argument?

===== funny buckles 2576 words

[07] PRONGS

This case was a bit out of my specialty. Because of my background, I normally attract the lawyers who have with cases involving a claim concerning a design defect of automobile chassis or crash safety components. A case where the loss of control results in a crash is called a handling case. Handling cases involve chassis components such as a suspension, steering or braking systems or a defect in the design of the system. I have been involved in plenty of those.

Crash safety cases were more limited particularly in the 1970 and 1980s. I had that background earlier than most expert witnesses, too. I argued that the problem in the construction or design of some car-body interior system. In handling cases, I might say that the problem was a loss of control that caused the collision and resulting injuries. But crash injury cases say that the defective system was responsible for the severity of the injury. We could agree that the reason the injury occurred in the first place was a dumb or careless action by the victim or the driver of one other involved vehicles. That sort of analysis is handled by the expert of accident reconstruction who describes the pre- and post-crash scenarios of the vehicles. I limit my analysis to the severity, not the cause of the personal injury.

“Prongs” was a different kind of case. It was about the common sense that any design engineer should use. Nowadays, colleges and the SAE are offering classes devoted to thinking about the safe use and misuse of a product. Misuse? Oh yes. “Murphy’s Law” – if anything can go wrong, it will”, certainly applies. This was one of those cases.

Misuse that is foreseeable by the designer becomes a ripe subject for a lawsuit. The manufacturer can’t just blame the injury on stupid behavior of the user and victims.

The foreseeable aspect of the misuse of a product requires some thinking outside the box. The designer and manufacturer must do more than making a product functional. It is not enough to know that using the product in a manner not prescribed in the owner’s manual might cause injury. Car companies have platoons of lawyer who pore over the content of the Car Owner’s Manual.

An example of this is this - a manual could say that it is dangerous to put one’s fingers in the path of the engine cooling fan. Well, that would be pretty obvious if the fan was driven by a fan belt, and the engine and fan were making noise. Many cars have an engine fan that is driven by an electric motor, even if the engine is no running. The fan operates when the thermostat tells it to do so – and that happens shortly after the engine stops, and the heat soaks into the radiator water. So, if you know that, or read about it in the booklet, you ought to know enough to keep your fingers out of harms way. But just in case the typical car owner does not read the Owner’s Manual, there is usually a small bright colored sign affixed to the surface above the fan warning you to the watch your fingers.

Here is a nice example of where the sign is not needed. A similar notice will tell you to take care when removing the radiator cap; otherwise you could get a blast of hot water or steam in your face. If the radiator is really hot, so will be the radiator cap when you grip it. A guy would have to be really dumb to ignore that. Maybe he is wearing insulated winter gloves so put the warning label there anyway.

OK, you need to know there is a whole big subject in manufacturing, engineering and the law called WARNINGS AND LABELS. But, people like me argue that most of that effort is wasted. When the designer is thinking about a common product like a vacuum cleaner or an automobile, he should realize that most owners assume that they know all they need to know. Who does actually read the OM that comes with even a simple, small thing, like a wrist watch? Some of us analyzing the contents of various owners’ manuals observed that the owner of a product that is obviously different from the run-of-the-mill will take the time to study it. The buyer will look for instructions on a strange-looking Dyson floor cleaner. In the 1970s, we found that typical buyer of his first “exotic” Japanese or European car would take care to learn more about it.

So, does that satisfy me? No. Real safety experts would tell you that the best thing to do about product hazards is to eliminate the hazard, particularly if it is not obvious, and for which no owner’s manual or local placard will be 100 percent effective. Design it out, or cover it.

Alright, we have set the stage.

THIS TRIAL

The vehicle was a CJ-style commercial Jeep. The case was focused on the dismountable windows that fit onto the short side doors of the open top car. Each window is made of clear plastic with a black fabric border sewn over a skeleton made of welded steel rods. Those rods had conical points at the bottom end to guide them down into the socket-holes in the top of the door frame so that the bottom of the “window” was tight to the door.

The plaintiff was a young woman who was enjoying a weekend with three friends on a trip out of town. They needed the canvas top and the side windows to be in place – up - on the Jeep at the morning of a cool, sunny day. However, in the legal “complaint” the plaintiff said that it is reasonable for the user of a Jeep to want to open the vehicle wherever they were as the weather warmed later in the day. In that case they would be unable to store those side windows in a garage. These doors could be removed or left in place on the Jeep when the weather was nice. Then the windows had to be placed at the rear of the Jeep, immediately behind the second-row seatbacks. To securely store the windows, they were placed upside down – with the pointed rods sticking upward, close to the back side of the second seat. The tips of the roads were close behind the head of anyone seated in the back.

Recall that this was a bunch of young adults out for a nice weekend at beach beach. There were unpaved roads scattered around the park. The sandy roads developed a gentle undulating profile that was sort of like waves in water. Car testers call this kind of up and down ride a “Thank you, Mam”. As you go up and down, your body and head lean first backwards, then forward on the way down.

When the Jeep went over a moderately big hump Helen was injured. She was in the back seat. As the short-wheelbase Jeep went over the undulating hills – like big speed bumps - it would pitch and bounce. Even though the young people were using the lap belts, they were tossed up and down, back and forth on their seats. At least once, Helen bounced up and came down with the back side of her head onto the point of the steel rod prongs of one of the Jeep side windows. The injury is an unpleasant one to describe. Helen came down with her head tilted back – which caused one rod to penetrate the back her head. She is lucky to survive such an injury.

Writing about more than these facts is difficult because I was asked to join the case late. I did not review any depositions of those persons or any of the medical records.

We built the case on the assertion that Jeep should have easily made several provisions to store the unused side windows in a safe manner. While working at Consumers Union I was taught not to be specific in recommending a solution to a problem found in the design of a product, which would apply to all of them. As an outside critic, I could not know all the factors available to the manufacturer. The CU rule was this: carefully describe the defect in the product, and then look for similar, competitively priced, products without that defect. Tell the readers that there are better products available. If there are no better examples, do not get carried away recommending what you think is a better design. Unless you can test it thoroughly, you might be wrong, too. The expert should identify the problem, not endorse a solution.

In the trial, I said that there are some solutions to storage that could be looked into, such as placing pockets or holes for the prongs in the floor behind the back seat. Another, a retainer on the outside back panel of the Jeep, like the kind military Jeeps used to carry a can of gasoline.

I do not recall anyone making a defense of that Jeep’s window retainer design. Instead, Chrysler said that Helen’s friends should have recognized the severity of the injury sooner and sought help quickly. The defense claimed that the delay in medical care was the big contributor to the extent of the injury. Apparently, the jury agreed the defect that was unreasonably dangerous – and not obvious, with foreseeable harm. The plaintiff won and would have collected money for her rehabilitation.

I learned much later that the Chrysler / Jeep people came back on appeal. I do not know how that came out. I do know that each of the so-called American big-three car makers hate to loose a case in which a person like me had a part. They really want to end the career of a former employee who became a whistle blower. In this case, Chrysler probably argued that my testimony was based on “junk science.”

Junk science is a term used to discredit an expert witness who has weak or non-existent qualifications in the technical field. That probably did not work on me because I really had studied the content and benefit of automobile owner’s manuals. For a while I was the chairman of a subcommittee of the Society of Automotive Engineers. The SAE wanted a study of the contents so that representatives of all car-makers could recommend a standardized format for the safety warnings. It was easy to settle on the new styles. Even the coloring of the panels containing those words is now the same.

===== prongs 1770 words

[08] RUFUS KING

Well, we lost this case against General Motors. Hell, I don’t know if we could have won it. I’m not even certain that I was right about the exact mechanism that was responsible for the awful injuries to the client, Mr. Rufus King. I think GM succeeded in confusing everybody – the jury, the judge, and the lawyers and experts for the plaintiff. I really don’t think that GM’s lawyers won their case, but I know that we did not have a chance.

His attorney showed me a video of Mr. Rufus King in convalescent home. I am not certain why the lawyer handling the case for his family thought I needed to see that. The pictures stay in my mind. Here was a good looking man, a successful touring musician, who now seemed to be little more than an infant.

This was a good case, I thought. Rufus was a completely innocent victim of a design defect in a truck. He was severely injured when he fell out of the passenger door. The door latch did not keep the door closed during a crash that I thought was not very severe.

On a cold, icy night, the driver, a fellow musician named Giorgio, lost control of a Chevrolet Blazer SUV. This was not the big one based on the Chevrolet C1500 series. This blazer the smaller one based on the Chevrolet S-10 pickup truck. The driver lost control as the truck crested an icy hill. This road had a very wide median. The north and south lanes were separated by something like a continuous rocky wall because these lanes went through a cut-out in a tall peak of a rocky hill. There was black ice there in the gap. The truck slid off the road into (not OVER) a cliff face that rose up on the left side. Then the truck bounced away and began spinning on the snowy shoulder. Mr. King fell out onto the hard ground when the passenger’s door flew open. The ground was not covered with soft snow. It was rocky hard. Rufus is alive today but will require the kind of care that an infant gets. Head injuries do that to adults. Therefore, the question is – why did the door come open?

Vehicle examination

Here is what I saw when I first examined the vehicle. These are notes on my tape recorder made during the inspection.

-----------------------------------

Red 4 door Chevrolet S-10 utility vehicle. It is a “Blazer”. It is not the big C1500 Blazer. I can think of three possible reasons for the door coming open.

One is that the fellow opened the door himself before the truck hit the wall. That is not likely considering that he would have been run over by the truck after he fell to the ground. The police report shows that after hitting the rocky wall, the truck was sliding to its right still going in the original direction. The truck was sliding to the left with the right side leading and it was rotating somewhat.

Another reason for the door to come open is that there was enough dynamic deformation of the door, during the collision with the side of the mountain, to cause one of the rods inside the door to pull the latch open. I can not see any of that. Third possibility is that inertia forces of the crash caused the latch to open itself. Some combination of horizontal and vertical inertia forces could do something like that.

I found when I tried it, that if you locked the door on the inside, neither the inside nor the outside handle works. If you unlock the door, both the inside and the outside handle works. I have assumed and the evidence seems to say that the man was not using his seatbelt. It’s clear that the driver was because his seatbelt buckle had been pulled out quite a ways from the sheath in the floor.

The head star in the front window is not as big or as deep as I thought it was when I looked at the photos while I was in the office. I can see that the plastic molding on the right A-pillar was broken by the front edge of the door frame being pushed up and forward when the back corner of the door dug in the ground. That distortion was not caused by a hit from Mr. King’s head.

This is the end of the tape for my visit to inspect the car with GM’s people for Attorney Gateway on case #970050. Monday November 10

---------------------------------

The evidence was clear. The passenger door came open. GM claimed that Mr. King panicked when he awoke from his nap on the passenger seat, and fumbled around and accidentally operated the door release on the inside of the door. General Motor’s defense seems to be that Mr. King himself inadvertently operated the fore and aft slider that is the interior door lock. Then he inadvertently operated the interior door handle which would release the door only when the lock was “Open”.

The proposed expert witness, Doctor Harvey, for General Motors was an “independent” crash reconstructionist. Independent, in this case, means he testified in behalf of any auto maker. He never has testified for anyone suing a manufacturer. Harvey is a PhD doctor, not a medical doctor. He happens to be a real crash scene investigator, whom I could respect. However there really was no disagreement about how the truck performed during the crash. Harvey was not there to talk about door latches.

The inside door lock mechanism in this vehicle is a slider near the upper front of the door. Harvey said that the hand of Mr. King pushed the unlock button forward during the early part of the collision of the Blazer with the wall, which lasted 200 milliseconds. Then Harvey stated that King’s right hand pulled the release lever out and back from the door as he slide back, releasing the door latch. Harvey agreed that the door did not swing open until after the truck separated from the wall. Doctor Harvey said that the principal direction of force (PDOF) on Mr. Giorgio (the driver) was approximately 1 o’clock – slightly to his right. However, he also said that the vehicle side slip angle was “in the neighborhood of 50 degrees” and his diagram shows the angle, at impact to be 52 degrees from the path. PDOF 1 o’clock is 30 degrees; PDOF 2 o’clock is 60 degrees. This collision started with wall contact at the left front corner. That would be PDOF closer to 11 o’clock. The sharp corner impact initiated a rapid swing, pivoting the rear end to the right. Very quickly as the full front and the right corner of the vehicle dug into the wall, the crash forces applied to the occupants became more like a side collision than a frontal collision. As the Blazer continued pressing against the wall with the front end (for 200 milliseconds, he said), the whole vehicle was sliding laterally along the wall. Finally, it bounced away from the wall, sliding almost backward. Then each occupant was thrust back toward the seat backs in the Blazer.

I agreed with that reconstruction. The inertia force of the truck yawing to the left would press Mr. King tightly against the inside of the door before the collision. Mr. King would pivot on his shoulder and be facing the door when the larger crash forces developed. Even without the belt, he would pivot on his right shoulder and slide forward. If he was using the seat belt, the shoulder belt of the passenger was routed over the right shoulder. His left shoulder would still be free to rotate forward and to the right,

That would put him in an awkward position to operate the door handle with either hand. If anything, he would be trying to press away from the door by pushing, not pulling, in my opinion. The driver’s head would go directly toward the head star location that we saw in the photos of the windshield. Then the truck slid away from the cliff face and the rear end swung to the right so that the truck was briefly sliding sideways, almost backwards. This would cause the vehicle to lean to the right while continuing to plow shallow furrows in the frozen dirt of the road shoulder. The rightward lean caused the corner of the open passenger door to dig in to the ground. The truck continued a counterclockwise spin while moving northward along the shoulder. King was on the ground near the center of the spin, like a kid near the center of a merry-go-round. He was not thrown out violently; he simply fell out backward through the open door way backward and was deposited on the ground in my opinion. There was no indication that King slid or rolled himself along the ground. The back of his head hit the frozen ground hard enough to cause irreversible brain damage.

Our claim

The passenger door could have unlocked itself. I once had the responsibility of conducting crash tests for the National Highway Traffic Safety Administration. When we did that, we were told to lock one door and leave the other locked (or two and two, if there were four doors). That was done to see if the door locks are self actuated during the 30 mph frontal crash. The NHTSA thought self-locking would not be a good idea because it would delay escape or rescue if the occupants were incapacitated

In the Blazer, the front door locks “buttons” are sliders that move forward to unlock the door. There are no springs to resist this, only weak detents. Thus we know that the early frontal crash forces would themselves cause the door to become unlocked. So, that is a good thing, according to NHTSA.

This is important for us. Why? When the door is locked, the inside and outside door handles are physically disconnected from the operating lever of the door latch. However, if the door is unlocked, then the mass of the inner and outer handle mechanisms will be able to exert inertial force on the latch itself. If the inertia forces are oriented right, they could unlatch the door.

My argument was that the door latch itself contains the defectively designed components that do not have universal mass balance. In this case, universal means that the mass balance of the each piece should be considered in thee planes: forward, laterally and vertically – known as the X, Y and Z directions. When that is done correctly no crash forces can cause inadvertent opening of the door.

I studied this door latch like others I have seen. Even before I had any concern about car doors opening themselves, I had a friend while I was at Consumers Union, publisher of Consumer Reports magazine, who was. This fellow had been a test engineer at an auto maker when he discovered the concept of inertial self-unlocking and opening car doors. He later went into the safety advocating business like I did and then slid into assisting plaintiff cases against car makers like I did also. From him I learned how to do the calculations to determine if the lock and latch hardware parts were balanced. My friend introduced me to this when he asked me to set up a computer program to do the calculations for him quickly. Later, we worked on a door-opening case where the vehicle had rolled over four or five times down the side of a country road. Thus vehicle didn’t roll like a log either – it bounced.

The door lock and latch can become disengaged when subjected to real world vertical shock forces such as the one in this case. That means it is unreasonably dangerous for the purpose of keeping the door closed. In my opinion, GM had concerns about the cost of using balanced levers: added weight, added cost, and added volume inside the narrow door. However, they can afford the cost and weight of the "Blazer" emblem on the outside of the door which must be more than the correct hardware inside. There is room inside the door ahead-of and below the existing latch. Only the thickness of the latch within the width of the door, t the back edge, is a genuine concern. Isn't safety a greater concern?

This Blazer latch must contain unbalanced components that are sensitive to shock from three directions. X, Y, and Z. We needed to show that. I can demonstrate the sensitivity to crash forces by calculation. I did not have enough data from GM to calculate the values in X, Y and Z that would trigger the opening.

Surely, it would be beneficial for door latches on all doors not be prone to inadvertent opening from shock forces in any direction, even hatch doors and sliding doors. In the early days of the safety movement, work was done to prevent rollovers, or to improve survivability during one. All statistics made it plain that ejection from a vehicle was much more likely to cause severe or fatal injuries. Thus, Federal Motor Vehicle Safety Standard number 206 requires that the doors should stay closed. .

It was not to be

The cards were stacked against our side of the case. My friend was not available to get involved. Nobody I knew of could perfect the complicated shaking tests of an exemplar door to demonstrate that shaking it in some combination of directions would release the latch.

But, I was certain that General motors had the necessary data to do the calculations. They had to have that analysis done to assure the NHTSA that their vehicles did comply with the door-stay-shut requirements of FMVSS 206. I did not ask for them to produce the calculations – just give me the raw data so I can do them.

GM stalled and stalled and … The judge seemed to be unable to believe us that GM should have the numbers and that the calculations would prove our case.

As I said in another story, “Crushed”, auto companies have plenty of inertia so that they are able to stall until the other side runs out of money or patience. It worked this time. I thought that it was a slam-dunk case – if we had shown our case they way it was done in earlier cases.

Poor Mr. King. He probably is still in a “home” somewhere, still a burden on his family.

===== rufus king 2427

[09] SILKY

In a 1988 model Chevrolet Cavalier Ms. Jane Silky was a passenger when the car crashed. She injured her head when she hit the passenger side instrument panel. We contended, in this case, that the window shade “comfort enhancement” feature of the shoulder belt for the right front passenger caused the injury to be much more severe than it would have been had the vehicle used a conventional lap and shoulder belt that would remain snug at all times.

Beginning in 1976, many domestic automobiles adopted a feature that automatically relieved the tension of the shoulder belt. It was nicknamed the "window shade" retractor. The designers of the shoulder belt retractors expected this retractor to produce slackness in the portion of the belt which restrains the upper torso. After the occupant put the belt around her torso and snapped the belt latch plate into the buckle at the side, the torso belt may be uncomfortably tight, pulling down on the shoulder, and across the chest. Many women expressed that opinion one way or another to domestic car manufacturers. To relieve this tension on the shoulder, the designer added a window shade ratchet mechanism to the belt retractor to provide slack in the belt automatically. After buckling, the occupant could pull the shoulder belt away from her chest, and then allow it to retract slowly until the window shade ratchet engaged. Then the strap draped comfortably on the shoulder and between her breasts. She was expected to periodically remove excessive slack by pulling out on the belt and allowing it to snap back.

Lawyers asked me about the history of the use of the window shade feature. Without going back to old records, I recall that they first appeared around 1976 and did not begin to phase out until almost ten years later. I had a multi-page table showing the data from many issues of CONSUMER REPORTS. One column shows a ‘Y’ when I know that the tested vehicle used the window shade. The comments often quote the description of the problem that arose when the window shade was present in the tested model. Note that these criticisms apply to General Motors, Ford and Chrysler products – all cars made in North America.

The window shade feature was the object of many design-defect lawsuits over the years. I believe that the cost of the lawsuits - whether won or lost - persuaded GM, Ford and Chrysler to abandon the windows shade feature. Finally giving in to the demands of consumer advocates, they began to install airbags for both front seat positions with conventional lap and shoulder belts.

When the feature was introduced, the National Highway Traffic Safety Administration (NHTSA) went along with the industry’s initial argument that the window shade comfort enhancement feature would result in increased usage -- enough to overcome the loss of performance resulting from a small amount of shoulder belt slack. Note also, that GM continued to try to avoid the requirement to provide front seat airbags by installing the so-called automatic seat belt system that attached both the lap and shoulder belts to the front door frames. Even though many safety proponents criticized this design because of the hazard it created, the domestic industry continued to use it, contending that the usage rate of seat belts increased because of the comfort‑enhancing feature of slack. They claimed that greater usage compensated for the reduction of restraint performance. One could not contest this argument in those days when the observed usage rate for seatbelts was about 10 percent. Then, very few people crashed while using any seatbelt, so we saw few opportunities to note those belts that failed to perform well. No car designed in Europe or Japan ever used the slack‑producing retractor, to my knowledge.

The Cavalier model Chevrolets continued using a window shade shoulder belt until the all-new 1995 model year Cavalier adopted a dual airbag system with conventional seat belts. By the way, notice that the 1987 model Pontiac Le Mans did NOT use the window shade, even though it was a GM car smaller than the Cavalier was. This is because GM’s Opel ‘division’ in Germany designed that car for Pontiac. Then General Motors had Daewoo Motors in South Korea manufacture the Lemans economy car for the Pontiac Division. It was a badly needed replacement for the awful Pontiac T100 version of the Chevette small car. GM chose to leave the belt system as Opel designed it rather than spend the money on that low production vehicle to revise it to US standards with the window shade retractors.

Many evaluators wrote that the window shade mechanism was often too sensitive, and allowed two or three inches of slack to develop when the normal ride jiggling motions of the occupant caused small increments of the window shade ratchet effect. I said that myself when writing for CONSUMER REPORTS magazine. I said that excessive slack in the torso belt is hazardous. Slack in the shoulder belt increased the distance which the passenger’s chest snaps forward before the belt begins to restrain her. The belt retractor locked when the crash began. Then the impact of the fast‑moving torso catching up with the belt causes a snap which produced high forces on the woman’s chest, and on the belt. When enough slack is present in a severe crash, that snap could break the shoulder belt or pull the D‑ring bolt out of the top of the B‑pillar. That did not happen this time.

Another problem exists when the crash is not aligned directly against the front of the vehicle. For instance see what will happen when a collision occurs on the right front corner. In engineering (CxSI) terms, that means that the impact force is coming from 1 or 2 o’clock. The forensic term is Principle Direction of Force (PDOF).This typically happens when “our” car is struck by an opposing vehicle when our driver attempts to make a left turn without allowing enough time to get all the way out of the path.

Everything within the struck car while move toward the PDOF. The driver’s upper torso may slip entirely out of the shoulder belt so that he will move toward the center front of the car. The slack belt has already loose over the side of the driver’s left shoulder. Thus, his upper torso would move freely away from the upper part of the belt. The lap belt, the lower part of the upper belt, would bear against the abdomen producing the same sort of injuries one sees when the occupant submarines under a lap belt. The lap belt alone does not limit excursion of the head but may make it worse by causing the head to swing down face first into the instrument panel near the center of the car..

The same sort of thing happens when the point of a different collision is at the left front corner with a PDOF of 10 or 11 o’clock. In this case, the front passenger slides out of the shoulder strap toward the cluster of hardware in the center stack.

What follows are parts of my report to the lawyer who represented Ms. Silky. This case did not get to the point or depositions or trial.

REPORT OF POSSIBLE EXPERT TESTIMONY

Background of the Incident:

On May 12, 1999, CSI, Incorporated began to investigate the collision that occurred June 13, 1998. The collision occurred on Alabama Highway 119, a two-lane road. A northbound 1989 Chevrolet two-door Cavalier, driven by Mr. (her boy friend), struck a southbound 1995 Ford van that turned left across the path of the Cavalier. Ms. Jane Silky was the passenger on the right front seat of the Cavalier. She received severe internal and external injuries, including severe head trauma, despite having worn the available lap and shoulder belt.

General Conclusions:

It is my technical opinion with a reasonable degree of engineering certainty, based on the evidence available to me, that this vehicle contains a seat belt system with a dangerous defect. That defect is the incorporation of a tension reliever feature in the seat belt retractor. This device allows excessive slack to build up in the shoulder belt without the knowledge of the wearer. During the crash, this excessive slack allowed the upper torso of Ms. Silky to strike the instrument panel with great force, causing severe injuries. In addition, the absence of upper torso restraint allowed Ms. Silky to double over the lap belt and receive serious injuries to her lower torso.

I. Opinions: Basis and Reasons Therefore. At trial, I will be prepared to testify to the following general opinions:

(1) The seatbelt restraint system which includes the “window-shade” feature is defective and unreasonably dangerous. The window-shade feature encourages the inadvertent - that is, unknown to the user - build-up of excessive slack. Documentary and anecdotal evidence clearly show that the design of the window-shade feature is defective and unreasonably dangerous. Documents produced by GM in this litigation prove that GM was aware of the fact that slack develops as a result of the window shade feature and that the buildup of such slack is oftentimes unknown to the user. Although GM was willing, it appears from the documents produced in this litigation, to allow a certain amount of slack to build up between the seatbelt user and the seatbelt, the documentary evidence shows that amounts of slack buildup are even in excess to the amounts considered acceptable to GM.

The evidence gleaned form the documents produced by GM also proves that at the time they produced and placed into the stream of commerce, GM was aware that the excessive slack buildup was often inadvertent and unknown to the user. A November 3, 1976, letter from E.H. Mertz, a GM Chief Engineer, contains numerous examples of the excessive slack and inadvertence issues that were available to GM. The list of GM personnel who received the letter includes most of the people responsible for automotive safety at GM at that time. Such evidence strongly and conclusively proves that GM, at numerous levels, was aware of the design defects inherent in the window shade retractor feature. Contrary to arguments made by GM in other similar litigation to the effect that comfort seatbelt designs, such as the one involved in this litigation, tend to increase significantly seatbelt usage among the population, a paper presented by Mr. David Biss at a convention in Goteborg, Sweden held May 29 through June 1, 1989 contains multitudinous evidence that this is simply not the case. GM produced this document. It has this identification: CF 1646-1681.

(2) In the year in which the car left the control of General Motors, alternative feasible designs were available to General Motors which would have been safer than the defective seatbelt restraint system that General Motors chose to use. General Motors easily could have used any number of these alternative designs. Feasible designs would have included those seat belts systems that GM used in vehicles produced for sale in Europe and Japan. Those seatbelt systems were generally one-piece, continuous-loop, lap-shoulder belts with a lightweight free sliding latch plate. The lightweight latch plate would have required less tension from the shoulder belt retractor to pull the seat belt and retractor out of the open doorway. This system would, of course, apply a light tension to the belt when worn.

Additional feasible alternatives could have included, but would not have been limited to, those referred to by GM itself in a presentation given by Bob Sinke on February 20, 1987 (See CF(C) GTC 8702200035).

(3) Ms. Silky was wearing the lap and shoulder portions of her seatbelt. During the accident, Ms. Silky was restrained primarily by the lap portion of the seatbelt. There is an obvious mark on the seatbelt that confirms this. In addition, her severe abdominal/intestinal injuries are consistent with the known effects of restraint of front-seat passengers solely with lap belts. The shoulder portion of the seatbelt did not restrain her well. This allowed her head to contact the dashboard and caused her to suffer injuries consistent with the so-called “jackknife” effect; i.e., the abdominal/intestinal injuries referenced immediately above. We saw no physical evidence that the seatbelt did bear any load on the shoulder portion of the belt. Ms. Silky sustained no bruises or other injuries suggestive of any such loading.

I inspected the subject vehicle and the driver and front passenger seatbelts. The front passenger seatbelt in use at the time of the accident was a replacement part authorized and approved by GM and was the same design and type of seatbelt that originally installed on the automobile. I compared the marks found on the driver’s belt webbing with that of the passenger belt.

This vehicle has a chrome-plated D-ring which is the device at the top of the B-pillar behind the door. Unlike the more-common D-ring, covered with black plastic, a chrome-plated D-ring cannot transfer any abraded plastic onto the webbing. We found some lightly polished sections of the shoulder belt webbing. This was at the position where the D-ring would be when the belt was worn. Nevertheless, there was no indication of heavy loading on the upper section of the belt. This vehicle also has the older model tilt-lock latch plate. Unlike the newer lightweight versions, this one is all metal. It cannot transfer black plastic onto the belt strap, either. Nevertheless, I did find an intense compression type mark on the webbing. It was narrow, as one would expect from the edge of the lock bar in the latch plate. It was at the position one would expect it to be. Even if the shoulder belt was fully extended, thus offering no protection, the latch plate would hold the lower part of the webbing secure.

(4) The injuries to Ms. Silky are consistent with the injuries a person would receive if involved in a collision of the sort described in the police accident report and eye-witness accounts and in which she was restrained tightly by a lap belt but with no restraint from a shoulder belt. Being restrained by a lap belt with little or no restraint from a shoulder belt is associated with increased risk of injuries.

The dangers associated with using a lap/shoulder belt in which the lap belt portion operates appropriately and the shoulder portion of the belt does not are well-documented. National Transportation Safety Board document PB86-917006 is just one of many documents which describe such dangers. This July 1986, document tracks the performance of lap belts in 26 frontal collisions.

(5) Because she was wearing a defective and unreasonably dangerous seatbelt restraint system, which did not adequately restrain her upper body, Ms. Silky received greater injuries than she might have suffered had she been properly restrained.

The pattern of injuries to Ms. Silky injuries is consistent with the above description. Due to the defective design of the seatbelt, her upper torso was free to pivot forward and down, and slightly to her left, striking the instrument panel with great force. The lap belt, which was the only portion of the belt to perform, caused characteristic injuries to her lower torso due to the lack of restraint of her upper torso.

II. Data or Other Information Considered in Forming Opinions

(1) Deposition of Jane Silky;

(2) Medical records of Jane Silky;

(3) Affidavit of (her boy friend, the driver), the driver

…

European, Japanese, and Australian Motor Safety Standards regarding proper seatbelt restraint systems;

Crash tests and test car experiences I had while working as the automobile safety engineer for the Consumer’s Union (1972-81), and as an Auto Safety Consultant since then;

Automobile test reports in Consumer Reports which criticize the window shade seat belt retractors, including those that I wrote, from 1976 on;

My personal experiences, including my training, education, and employment as summarized in my curriculum vita attached hereto.

In addition, I expect to review the testimony, whether by deposition or otherwise, of any corporate representatives for General Motors, any testimony given or proposed by experts on behalf of General Motors, and any additional paper discovery. …

III. Exhibits

XV.ExhibitsXV.ExhibitsXV.Exhibits(1) Any or all of the above-listed items might serve as exhibits to or summaries of my testimony;

(2) Prior to trial, we expect to create a demonstration of the process of slack build-up in the seatbelt restraint system with the “window-shade” feature used by General Motors;

(3) An exemplar vehicle;

(4) The actual vehicle and seatbelt involved in Ms. Silky’ injuries;

…

(18) A video that I have of sled tests involving different levels of restraint for a driver;

(19) Films and/or videos of sled tests made by David Biss showing the performance of a passenger seatbelt restraint system with varying degrees of slack introduced;

(20) A mock seatbelt restraint system using the same lap and shoulder belt and window shade design as is made the basis of this lawsuit;

Example clippings of automobile test reports in Consumer Reports that criticize the window shade seat belt retractors, including those that I wrote, from 1976 on.

I expect, potentially, to use any or all of the above-listed as exhibits in support of my opinions. At this time, I have not prepared specific demonstrative exhibits (such as charts, graphs, or time-lines, etc.), but prior to trial I will prepare certain demonstrative aids to help illustrate my testimony. I do not expect to be able to make a determination of what sort of demonstrative evidence I might need to create until more discovery has been done in the case and until I can better see what facts and opinions are in dispute.

…………….

That is the end of the report (and this story)

===== silky 2953 words

[10] SLAM DUNK

It was a Wednesday and I was sitting at the big round table in the local Denny’s restaurant. Seated around the table were my new friends from church, this was a weekly men’s breakfast. After the introductions, Sam, the fellow seated across from me asked, “Carl, what do you do for a living?”

I said, “I fight dragons for a living. Sometimes I win”.

It was the kind of answer that invited further inquiry. Intrigued and amused, my new friend asked, “What do you mean, Carl?

I took a moment to compose an answer, then, held up my hands (I tend to talk with them) “The dragons I fight are the lawyers working for the companies that make automobiles. I work for the lawyers who are suing them. The carmakers in turn call our side “greedy bastards who sue big companies for big bucks”, and the car people hate me because I once worked for the General Motors lawyers before I realized that I was working on the wrong side. They now say I’m a whistle-blower.”

Apparently I’d caught the attention of a few others at the table and another man asked, “What do you do for the lawyers?”

I’d been fiddling with my fork, but I put that down and held up an index finger, my son says that it looks like I’m conducting. “A lawyer’s job is to ask questions,” I said, “Mine is to give him answers that the judge and the jury will believe.”

“Is that all there is to it?” asked one of my new friends, “How can you know what to tell them?”

“The trick is to get the judge to agree that I am qualified to say those things. Otherwise, the jury will not get to hear what answers I have.” I let that settle in for a moment. “The court clerk swears me in, so I can sit in the witness box. The first question is to identify myself. Next, the lawyer asks me to tell the jury what credentials I have. Normally, the court gives me some time to tell the jury about what I have done that makes me an expert in this business. Usually, the defense lawyers let me go on talking for a while, but if I start to make a long speech they’ll object. Sometimes, for instance, if it’s a case involving GM, their lawyer will challenge my qualifications, hoping to destroy my ability to testify as an expert. Actually, one time a General Motors’ lawyer did have me disqualified before I said anything useful to the plaintiff.”

“Why?” asked Jack, the man asked seated next to me, “How?”

“Well,” I replied, “I’ll never forget that, nor will I forgive the lawyer for the plaintiff who failed to get my qualifications into the court’s record before asking about my opinion about what I thought was the problem with a defect in a car’s design. The defense lawyer objected, saying I was not entitled to testify as an expert. The judge agreed that I had given no reasons to believe that I was one. I became an “eye witness” only allowed tell the jury what I saw or heard. I was limited to saying what actual evidence I found, but nothing about what I thought it meant. Only an “expert” is allowed to interpret what he saw for the jury I don’t want to explain that now. It’s pretty technical – hard to explain without more background.”

But hey! Let me tell you about the time that General Motors had their expert witness blow up their case. He was telling a funny story.

During this lawsuit, we heard testimony from a body interior designer who worked in Sweden for Saab. This case was about a man who was hurt when his elbow slid back along the armrest and caused the door to open by accident. The Swedish guy told the jury us why Saab kept the door handle exposed above the armrest near the passenger’s right elbow – only on the two door model. They reasoned that the driver and passengers would be safe if they locked the doors. On the Saab 900 with two doors, the door was locked by pushing down on a button sticking up from the windowsill near the shoulder of the front passenger. The Saab designer told us why that was important, too.

The Swedish body engineer chuckled when he told us that Saab had once experimented moving the door handle to a safer location at the front of the door on two-door models. That was fine until they got a complaint.

One night, he said, two Saab executives, along with their wives, went on an extended ride together. The men sat in front, the women in back. After a while, the driver stopped at a gasoline station and both men went out to the men’s room, our witness was told. Later, when the men came back to the car, the women were screaming at their husbands. “We needed to go to the bathroom, too,” they said. “We could not get out. We could not reach over the back of the front seat to reach the door handles way up front”

One of the women was the wife of a vice-president of Saab. She demanded that her husband take care of that problem. The Saab body engineers had to move the door handle back to where it could be operated by reaching around the side of the seatback. They had to move the lock button from inside a front pocket back to the top of the windowsill, too.

That was a funny story. One could not make up a story like that. GM did not try to deny it. The jury loved the story, too. However, from our standpoint it was a crucial admission. Saab had admitted that they designed this ejector door handle with a defect and it could be responsible for the ejection of the driver.

Later, we pretty much finished our breakfast along with concluding the church business we were there to talk about. Now, relaxing over coffee, the subject of my trial experience came up again.

“So Carl,” began my neighbor, “what was that about you getting disqualified at some trial?” With more time now, I could go into more detail. I explained that we call a lawyer who is suing a defendant company on behalf of an injured party the plaintiff’s attorney. The lawyer is prosecuting a civil case called Products Liability – PL for short. That kind of case means that the client is claiming that his injury is the result of a defect in the product – in this case an automobile. The lawsuit is a special kind of a personal injury case. We say it is a product, a manufactured thing that caused the injury – not a person. Oh a better way to put it – even if the other guy caused the car crash, the claim can be made that the injuries to the plaintiff were made much worse by a defect in the car design.

A carmaker is not very concerned about a case claiming an injury that resulted from a simple manufacturing defect, the sort of thing that was found in just a few bad cars, which escaped the factory inspection. People in this business call this kind of defect a bad sample. I call it a bad day at the factory. The car companies do not fight this case if the defective part is in evidence – they might even offer a settlement before trial as soon as they are allowed to inspect the bad stuff.

“I must convince the jury that the design of the car contains a defect that causes crash injuries to be worse that would have been otherwise. The car companies will fight nasty on a case which we claim resulted from a design flaw. The auto company will bring out their best engineering witness and present some elaborate charts and displays to bedazzle the jurors. When a jury agrees that our side proved that vehicles with these defective designs are unreasonably dangerous – that is a huge matter. First, it means that any, or all of those cars contain the defect. Each one of those cars that crash that may produce another lawsuit. Paying for damages caused by one badly made car is not a problem. Being hit with dozens or hundreds (yes!) of similar cases is a big deal.”

“Oh, you mean like the movie with Julia Roberts?”

“Yes. The really big deal – the kind that makes the headline news - is one that goes beyond claiming that negligence by the company engineers allowed a defectively designed car into the market. If the evidence shows that the engineers and officers of the company knew of the defect but ignored the danger, then we call for punitive damages. I personally wish we could put the people in jail for putting that kind of car out. However, that seldom is even considered. Instead, the court applies the punishment to the corporation. It is like a multi-million dollar fine. And a multi-million dollar “fine” really punishes the company shareholders by reducing the company profits. I suppose the purpose is to encourage the company leaders to pay more attention to engineers who warn them (if they dare) that might not be safe. While I was at GM, I would have been fired if I said that in writing.”

“For the plaintiff trial lawyer, this kind of case can be worth big bucks. A defective-design verdict might allow one or more lawyers to put together a giant case with dozens or hundreds of plaintiffs who claim injury because of that defect. A victory in a class action case with punitive damages can produce an award of billions from a large automobile company. As a result, the trial lawyers seek class action suits against defendants with ‘big bucks’, deep pockets, such as the tobacco or drug manufacturers.”

“But, I hear that those kinds of cases take forever to get done”, said Jack.

“Oh yeah. I had some cases that took about ten years. But, given a victory, the lawyers will first recover (take) from the victims the money that was spent for all the expense of pursuing the plaintiff’s case. Then the lawyers take a big share of the remainder. Typically the law firms get 40 percent. The injured families divide what money is left.”

“Not me. I do not get any share of the award. That would be illegal. The lawyer just pays for my expenses and he pays me for my time, by the hour or by the day - period. I am not paid for my opinion – even if people insinuate that. ” I let that bit of information sink in for a moment.

But, I am paid $250 per hour while testifying. Most of the work leading up to my testimony is charged at less than that. The law firm does not have me on a salary. I am paid for doing my job, my work – not for being on their side. I cannot, by law, benefit from the jury award. I don’t get $250 an hour for a 40 hour work week.”

THE REAL SAAB STORY

I felt strange watching our client come into the courtroom. Mr. Gerald Ronamm came down the center aisle into the courtroom. He pushed the gate open. Then he pushed a well-padded office chair into the space to the left of his attorney. Even though he was using the tall back of the chair as a walker for support, he was struggling with his stiff right leg. He plopped down next to Ms Goodman. She was the lawyer who contacted my firm (CSI) for technical assistance with her lawsuit. The plaintiff’s case seemed like a triple slam-dunk. He was a yuppie professional man who suffered serious leg injuries during a rollover of his Saab Turbo. He was a grim-faced fellow who was not look like somebody you could call Jerry.

A Triple slam dunk? Yes. First, his Saab automobile had a hidden handling defect than contributed to the cause of the rollover.

Second, his car had been designed with a driver’s door handle that a driver could open by accident.

Third, the design of the seat belt failed to keep the driver in place, allowing the driver to hang outside the car while it overturned several times.

I’ll explain what we told the jury about those defects later. This was a great case to work. General Motors is the owner, now, of Saab the maker of cars in Sweden. Because I once worked for GM, GM hates me now as a whistle blower. GM will spend a lot of talent and money to prevent me from helping a lawyer to win any case.

This case did not start out very well. I made several mistakes that were hard to correct later. Bear in mind that I travel all over the USA, from Maine to California, Florida to Seattle. I visit junk yards to examine cars, lawyers to plan cases and offices or courts to testify. So, it is not uncommon for me to be asked to “stop by sometime when you are in the area”. I think I should have learned that is doing nobody a favor. Stopping by in the middle of a trip never allows enough time to do anything well. In this case, I was able to drive a rental car quickly to visit Ms. Goodman at her small, all-woman office in Williamsburg, a small city in rural Massachusetts. When we met, she told me that we should hurry to a barn where a car was stored. It was mid winter so it would soon be dark. There were no lights in a barn.

Well that was mistake number one. A rush inspection in a dark barn using flashlights is really doing a poor job. I should have insisted, as we do for a big auto company cases, that the vehicle be put on a trailer and taken to a car body repair shop with a hoist. But I did not. Wow! This car, a two-door hatchback Saab had a lot of roll over damage. Just about every surface was banged up. The driver’s door was severely mangled showing that it had been open during some of the flips. The rear of the door window frame was tied securely to the B-post to keep the door nearly closed. The rear side window was broken out, and there was a large separation between the inner and outer skin of the fender below the window opening. The driver’s door was also bowed out like that. Looking down inside the door with the flashlight, I could see that the innards of the door were distorted in every way. Not a surprise.

Ms. Goodman directed my attention to the gap in the fender behind the door. I was surprised when she pointed out that the shoulder belt retractor mechanism was plainly visible. It was not covered with a plastic baggy, as many are, to keep dirt and moisture away. The real surprise was to see overspray everywhere. This car had been given the Ziebart rust protection treatment. The person who did that job probably is the one who drilled holes into the hidden cavities do spray the under coating. Late, he covered the holes with plastic caps.

I doubt that the spray been directed at the seat belt retractor. However, there was a cloud of fine black, sticky drops everywhere inside the fender from the overspray. It seemed like a good theory proposed by Ms. Goodman – the sticky stuff had rendered the seat belt retractor unable to lock when the collision sensor was stuck. She pointed out that not only had the Saab door come open during the roll over, but that the driver was found fully outside the car, partially crushed under it. She said the driver had worn his seatbelt, so he should not have been fully ejected.

I had to leave to complete my other travel mission. We agreed that she would have the seatbelt retractor and the entire seatbelt and associated hardware removed for later close inspection. The proper way to do this is to invite the defendant to cooperate, with both parties being side by side.

STICKY STUFF

Eventually, that hardware was sent to my offices at CSI. There I enlisted the help of our resident materials specialists, named Jerry Crown. He was the kind of expert that used to be called metallurgists. I asked him to examine the effects of the fine droplets of undercoating. The collision sensor in this Saab retractor was a small ball of light white plastic that is housed in a plastic birdcage-like structure attached to the side of the housing of the seat belt retractor. Normally the ball would rest in a shallow pocket at the bottom of the cupped cage. When the retractor is subject to high lateral collision inertial forces, the ball would roll to the side, freeing a plunger to drop down. The plunger released the spring loaded pawl that would engage the saw tooth ratchet on the edge of the belt spool. That is what locked the retractor, preventing the shoulder belt from paying out from the reel during a crash or a roll over. This is the fundamental purpose of the occupant crash restraint. We thought that perhaps the sticky black undercoating had cemented the plastic ball in the bottom of the cage, and had been jarred or pried loose later.

There was some concern that perhaps the evidence had been surreptitiously altered by the visiting experts from General Motors during the so-called joint inspection. I was told that there were several of them present at the same time. They had managed to distract the Goodman representative, so that the GM guys had some private time with the seat belt retractor. I do not think that opportunity mattered. In my opinion, there was another realistic reason why the seat belt had failed to keep the driver completely inside the car.

As Mr. Crown spent time with the microscope, it became obvious that the bits of black sticky stuff were not sticky enough. The drops were too small. They were unable to get a grip on the polished surface of the plastic ball. It was too late. Ms. Goodman had already framed her legal complaint with that allegation.

Ms. Jane Goodman is a very nice woman with a good heart. It seemed like she had not much experience with major products-liability suits like this. I paid for this omission. I let the people from General Motors inspect the hardware without flying there to keep an eye on those guys. If I had been with them, I might have noted that they discovered the same thing as Mr. Crown did.

BOY. WAS I WRONG – AND EMBARRASSED

Another complaint was my allegation that some of the hardware in the door was distorted so that the door latch self-released during the multiple rollovers. Often when examining a door that came open inadvertently, I find that some linkage rods inside the door were bent. Here is the picture. Front car doors have an outside handle, and inside handle, a manual lock on the inside, and a key lock on the outside surface. Good design dictates that the linkage from the inside and outside handles becomes disconnected from the latch hardware when the lock is engaged. The latch is a small metal box of small links and levers located at the back edge of the door.

In the 1950s, most cars had the front and back ends of the door handle fastened to the door. There was a thumb operated push button below. A button-headed knob stuck upward out of the rear edge of the inside windowsill. You pushed it down to lock the door. That knob was behind the shoulder of the front passenger, so most people didn’t lock the door until they got out. If the car did roll over onto its side while the door was not locked, the outside door handle was pressed onto the ground. The ground pushed the thumb button into the door. Then the door was unlatched but still held closed. If and when the car continued rolling over, the door would fall open.

That kind of disaster led to two design improvements. One was to move the inside door lock to the front of the door, just below the window. It would be either a slider or a small lever to flip. Now it was easy to lock the door after being seated. Better, both the inside manual lock and the key lock were arranged so that the locking mechanism simply disconnected those door handles from the latch. Later, as safety awareness increased, many cars also adopted automatic door locks that were engaged when the engine was started and put in gear.

That was not the problem with this two door model Saab. I have an excuse for not knowing what the real problem was before we saw the photos taken during the joint inspection. I thought I was familiar with the inside layout of the Saab 900 series. We had tested them when I was working at Cornell Aeronautical Laboratories in Buffalo. I also had driven a few during my days of testing numerous cars for Consumer Reports. I was not aware that the two-door model was markedly different in an important way. Testing is almost universally done on standard four-door cars, unless there is no option, such as on the original Honda Accord. The four-door Saab had its inside door handle and lock located at the front of the inside of the door, just below the window, in the thickened portion of the window sill. The two-door Saab did not. I will tell why that was too important to overlook later.

Yes, it should have been a slam-dunk case, but we discovered, as time went by, that the client himself was not a sympathetic person, to put it mildly. The forensic expert industry has rules that require the client to be caught up on all his bills before trial. The client’s lawyer also must pay ahead for the estimated charges during the trial. CSI will pay cash for the many travel and hotel expenses, and CSI charged many hours for my time at the weeklong trial. Ms. Goodman, the lawyer, was our client, not Mr. Ronamm. She’s a small town lawyer, so she was getting her money for case expense from Mr. Ronamm. While that was an excuse for letting her get behind on paying our charges, CSI demanded that our up-front money be ready before trial. But there were delays, there too.

Well, our side lost in court. The jury found for the defense. Mr. Ronamm did not collect a dime. And he did not pay for our time or our expenses, and I suspect that he shortchanged Ms. Goodman for her time, too.

My firm, CSI, sued Mr. Ronamm. Then he turned around and sued CSI for losing his case. He actually wanted us to pay for his trial expenses and the award he should have earned from GM. What a mess! Tell you more, later.

THREE DEFECTS IN THE SAAB

The first defect is a common one. Some call it “power-off oversteer”.

Saab, of Sweden, was one of the first carmakers to adopt front wheel drive (FWD) long before it became popular in the USA. A car with FWD has most of its weight on the front wheels, unlike the regular rear-wheel drive cars and trucks. FWD was an advantage for traction in Sweden, a country with heavy winter snow. The early Saabs were tiny cars with two-stroke engines. They were weird in many ways and appealed only to FWD fanatics. In later years Saab made cars big enough to appeal to the general car buyer in the United States. The basic model name was Saab 900. Mr. Ronamm had just bought a new 900 Turbo model, with a turbocharged four cylinder engine. Buyers considered this car, with a five speed manual transmission, a sport sedan even though it had only two doors.

At the time Mr. Ronamm lived in upstate Massachusetts, somewhat northwest of Northampton, where he had a profitable business. One bright, sunny Saturday morning he washed his new car. Then, grabbing the keys, he went for a ride to “dry it off” on the isolated two lane roads in his neighborhood. He enjoyed buzzing around the curves of the rolling terrain in the wooded area. He was in third gear speeding up a hill approaching a wide curve to his left. Mr. Ronamm knew the remote area well and expected a long gentle down hill section that crossed a small river beyond the curve.

When he reached the apex of the curve, Mr. Ronamm was surprised to see a woman walking her dog along his side of the road facing him. He got off the gas pedal, but (he said later) he did not apply his brakes.

Oh Boy! The Saab had a response he would not expect. It swerved suddenly hard toward the left side of the curve, easily missing the woman and her dog. I swerved so quickly that it was headed into the sandy shoulder at the beginning of the downhill straight section before the driver could counter steer.

I know that Mr. Ronamm did not hit the brakes first because that would have prevented the power-off over steer response. After finding himself on the left side shoulder, the brakes locked the front wheels on the gravel, preventing his next maneuver from being effective. He did turn hard to his right to avoid going completely off road into the woods. With locked front tires, that did not work until he foot came off the brake pedal. The Saab turned back toward the road and had its front wheel up over the sharp edge of the pavement when the left rear wheel slid laterally into a large, almost buried rock in the soft shoulder. That tripped the car into a violent rollover. We were able to see the mark made by a wheel rim on the rock.

MISTAKEN BELIEF

A front wheel drive car works its front tires hard. There is always a limit to the traction between the tires and the road. There is more driving (accelerating) traction when a majority of the weight is on the front, as it is on FWD cars. There is more traction on one front tire when it is on the outside of the turn. That is good, and makes one think that the way to drive a FWD vigorously around a curve it to power through it. Not so. Mr. Ronamm was driving in a sporty mode, buzzing around using lower gears to make more engine noise, as if he believed that he should go around a curve under power. That is what makes fast driving fun.

He did not know that the FWD Saab’s front tires are working double duty. The front tires divide the available tire-road friction between the driving forces pulling the car ahead, and the cornering forces making the car turn. This required Mr. Ronamm to steer more to his left in order to balance the driving and corning force. That is, he had to make more left steer than would be needed if the car had been coasting neutrally through the curve or if the car was driven by the rear axle like most sport cars.

When Mr. Ronamm saw the woman and the dog, he got off the throttle quickly. As a result, the Saab experienced power-off tuck-in, also known as oversteer. Relieved of the requirement to pull ahead, the front tires suddenly had more corning force available at the given steering angle. The Saab now turned more sharply to the left as the throttle closed. With a manual transmission, this reduction in driving force is quicker than with an automatic. There are ways to minimize this effect. I was a chassis engineer at General Motors when the Engineering Staff was developing the prototype for the Oldsmobile Toronado. Unlike the early Saabs, that car had a huge V8 engine. GM planned to sell the new Olds only with an automatic transmission. It had tuck-in anyway because of the prodigious traction capability of the big engine and tires. We had to calm the tuck-in for the American driver’s taste. European sporty drivers do not mind tuck-in, knowing when to expect it and what to do. Let me just say that there are several engineering solutions to tame tuck-in which I do not want take the time to describe just now.

EJECTOR DOOR HANDLES

The second defect was a more common problem before Consumer Reports magazine began criticizing it. We called it the “ejector door handle”. Maybe you can even recall those cars which had the door handle positioned just below the front door armrest. If you reached your fingers down through the opening in the armrest, they could curl around the slender door handle. That was convenient if you wanted to get out quickly.

The engineers at Consumer Reports thought that if the passenger was feeling anxious as the driver went around a sharp turn to the left, he might instinctively grasp the armrest, inadvertently pulling up on the handle and causing the door to open. The danger there was obvious - then.

GM developed the E-body car body to use on the Toronado, the Buick Riviera and the Cadillac Eldorado. I worked on the Olds prototype. We put a very long front door on this car body to make it much easier to get out of the back seat. Remember that these FWD cars were not compacts. In those days, the door handle that was popular on large GM models was a flat paddle that stuck out of the front of the long armrest. You could open the door by pulling it up with your fingertips. General Motors body designers read Consumer Reports. This early design could have been an ejector door handle. Today most cars have power door locks that work as soon as you put the car in gear. Now you know why.

Did the designers at Saab know about this issue? Of course they did. They positioned the inside door handle near the very front of the door just below the windowsill. Oh, that was only on the four-door Saabs. They did not make that change on the much older design two-door models. The two-door Saab had a short vertical lever that stuck from the center of the arm rest. The stubby lever stuck upward out of the armrest. A person could operate it just by sliding his elbow back along the door. It was near the elbow for either person seating in front. If the elbow pushed the lever rearward, the door was accidentally unlatched.

General Motors brought a body interior designer from Saab, Sweden, as one of their expert witnesses. I told you about this explanation earlier – it was a funny story. I doubt that he knew he had really hurt GM with that one. Maybe the Swedish engineers really did not like being owned by the monster American company.

GM did not try to deny or explain their expert’s testimony. The jury loved the story and the guy. However, from our standpoint it was a crucial admission. Saab had admitted that they designed this ejector door handle with a defect and it could be responsible for the ejection of the driver.

Drivers demand convenience, too. Typically, when the driver operates the inside door handle, that action also overrides the lock. It does not work that way on the other doors. That was the problem in this case. The door handle was near the driver’s left elbow as the Saab overturned four or five complete revolutions before coming to rest on its left side – way down the hill. The driver’s door opened during one of those flips. It became mashed and flattened against the front fender whenever the car landed on its left side before coming to rest on its left. Mr. Ronamm was outside, on the ground. The Saab was resting on his crushed legs, pinning him to the ground. He was badly hurt and could have been in even greater danger if he had not been rescued soon.

I did not mention that when Jerry took his Saab out to “dry off”; he took a neighbor along for the ride. The rapid, violent rollover shook up that fellow pretty badly but he was still fully inside with the passenger door closed. He is the one who got out and went to get help for Jerry.

INCREMENTAL PAYOUT

The third design defect, we claimed, was that the Saab seatbelt retractor is defective. Considering that the Volvo and Saab Swedish cars advertise their safety so strongly, that was a shocking claim. At first, we had gone along with the suggestion that the careless application of car-body undercoating froze the crash sensor in place.

Designers use all sorts of mechanisms in a retractor to prevent the seat belt from paying out during a crash. The seatbelt strap winds around a spool inside the retractor. There are one or more springs that make the spool wind up the slackness of the seat belt. The edge of the spool has a saw tooth profile. A strong steel bar will engage the teeth if and when a crash sensing trigger works. There are many design variations of the sensor that we call the crash force belt-locking trigger. In response to large crash forces in any horizontal direction, the sensor causes the latch to move into engagement. Some cars have seat belt retractors that also lock the belt when it is pulled out very rapidly, even if a crash is not occurring. In the early days, that is the only kind cars had, until the government required what is now called emergency locking retractors” – the ones that use crash sensors.

Some sensors operate quickly in time of need. That sensor can also allow the spool to unlock quickly, too. I said that it was that feature that was defective. That lightweight plastic ball in a cage was a fast-acting crash sensor. The Saab rolled over four or five times. We and GM argued about that number – was it four or five? We both had the measurements of the distance from the tire gouge in the shoulder to the resting place of the wreck. That was enough room for four or five flips. We still could see the marks in the pavement where the car bounced on the roadway before ending up down in a shallow ditch. It was certain that this car did bounce around alike a football. Car testers roll over cars on purpose. The slow motion films show the hopping motion. But, I doubt that the jury cared if the number was four or five. It was pretty violent, and the repetition was what allowed the seat belt to fail to do its duty.

I claimed that the seat belt retractor did lock when the Saab made that first hard turn to the left onto the shoulder. Then it briefly unlocked each time the car was in free flight, bouncing along the road down the hill. The driver’s door probably opened when Mr. Ronamm was sliding around inside. His passenger, who was only shaken up and got out safely, told us that Ronamm was fully outside the car with lots of seat belt webbing wrapped around him when it all came to rest.
I called that “incremental payout”. It meant that the belt webbing was able to pull out from the spool at little bit each time the car was in free flight – each bounce caused a very brief zero gravity effect. Now, I have to admit that the retractor issue was not the major defect in this case. Others had described similar effects in other cases, but it was not a subject that had received much research.

THE TRIPLE

Here we had a case where we could say that one defect – the tuck-in – caused the rollover collision. Any impact, even when bouncing, is a collision. Usually I focus on the crashworthiness and occupant restraint systems. The defective design of one or both of those systems allows the injuries to be worse than would have been otherwise. Here, in this case, I claimed that without the FWD tuck-in, the car would not have gone into the left shoulder and begun rolling over.

We claimed the second defect was the ejector door handle on the driver’s door. At first, I did not recognize that was a defect. Most of my experience with the Saab automobile was with the four door models, I admitted.

Thirdly, I claimed that the incremental payout allowed the driver to be outside, on the ground, when the car came to rest on his legs. We noted that the passenger who stayed inside was hardly injured.

Backtrack for a moment. My experience with these cases against the auto companies like General Motors is a plaintiff’s lawyer has to squeeze hard, frequently and relentlessly to get anything from GM. The car company will seize any excuse in the wording of our side’s request for discovery. Discovery is a word meaning that each side is expected to ask of the other for what information they hold that might be pertinent to the case. They are also expected produce their witness for questioning in a deposition if we ask for those before trial. The company carefully chooses a person with the appropriate generalized knowledge in the field. Usually that individual is not familiar with the specific defect alleged in the case. The designated witness is smart, but not so smart that he can hurt the defense case. He cannot accidentally reveal anything of importance. The company usually claims that those people who actually know what they did and why they did it have retired, or the defense lawyer may say these people are unavailable for some other reason.

So, it was a surprise when GM produced a real expert who worked at the factory in Sweden. Because he had to come so far, we did ask to hear his testimony before trial. His written report did not contain the funny story. This fellow was so honest we were amazed. He told us, in court, the real reason why this car had the ejector door handles. It was that funny story. I really thought that this story was a winner – for us.

Here is the rest of the funny story. I saw the same problem when I was working on the prototype of the Oldsmobile Toronado. That car introduced a long but wide fast-back coupe, called the E-body by GM engineers. It was added to GM’s line up to compete with the Ford Thunderbird upscale coupe. The Toronado had very long doors. They were equipped with fancy hinges that allowed it to open wide enough to make a wide gap between the back of the front seat and the opening in the car body. Access to the back seat would be easier. The then-standard paddle-type door handle protruded out of the front end of the long door arm rest. It was too far forward to reach from behind, like in the two-door Saab. GM thought of a neat-looking solution. They put a second door handle in the cars with those extra long doors. That handle stuck out of the rear end of the long armrest. If you unlocked the door first, you could lift the paddle to get out. The door lock was the old fashioned button sticking out of the top of the window sill. No problem there. So, the funny story was sort of familiar to me.

THE JURY FOUND FOR THE DEFENSE!

People with me were originally sure that this was a slam-dunk winner of a case. The first defect was a bit shaky because it is hard to convince laypersons on a rural jury what it really means. The automobile fan magazines all talk about power-off tuck-in, but those jury people had no experience with it themselves.

The business about the door handle was easy to understand. The jury could see that the opened door was the reason for the ejection and subsequent injuries of the driver.

Incremental payout of the seatbelt seemed important to me. It was to explain why the driver was fully outside the car with his seatbelt still wrapped around him. GM argued that, despite the testimony of the passenger, there was no objective proof that the driver was using his seat belt at all. GM’s experts said that a properly restrained driver would remain almost entirely within the car. His passenger would not find him fully outside the vehicle, and in this case partially under it. I had to admit that I thought this is usually true too. We would admit that these were a weak, a strong and a weak arguments. Those three ought to be enough to get a victory from the jury.

So, why did we lose? I have been in several cases that resulted in jury nullification. The Los Angeles O.J. Simpson trial was one like that. In that case, commentators speculated that the jury did not like the Los Angeles police department and those on the jury plainly favored the famous football player.

So, despite a lot of evidence, the jury found that GM and Saab were not responsible for the injuries. Ms. Goodman and CSI lost this slam-dunk case for a similar reason. It became obvious during the trial that the jury saw the ostentatious limping behavior by Mr. Ronamm, and did not like him at all. He made a big deal of needing his orthopedic office chair at the table with the lawyer. Another reason to dislike him was that Ronamm was not consistent about his limping. There were other times when Mr. Ronamm seemed youthfully spry and forgot his exaggerated limp. He was in upstate Massachusetts. Mr. Ronamm made a big deal of needing to swim in a heated pool, as therapy for his injuries. The heated swimming pool was installed at his home. Outdoor heated swimming pools are an extravagance in that neighborhood. One of the local restaurant keeper told us this was in keeping with his ostentatious showing of wealth which some of his neighbors resented.

Mr. Ronamm managed to offend his team, as well. As I mentioned, he was always giving his lawyer and CSI excuses for delaying his payments. When the three CSI experts came to the lawyer’s office to meet everyone for the first time, we were dismayed. One expert was there to tell the jury about orthopedic injuries. Another was Mr. Crown.

Although we found that this testimony was not crucial we had to produce him. These fellows are genuine experts in their fields being paid more than $200 per hour for time testifying.

Normally, Ms. Goodman, the trial lawyer in this case, is the commander of all aspects of the plaintiff’s portion of the trial. The three CSI people are independent experts. So we were surprised and upset when Mr. Ronamm began to tell us exactly what we had to say. Some of his orders were simply not true and we objected. I told him that this was just one case for him. On the other hand, our expert testimony, if proven false, would end our careers. We resisted his urging.

Mr. Ronamm owned a furniture store. The company was paying our bills. After all he was the boss. He bossed around some of the staff in the law office. He was even telling his lawyer, Ms. Goodman, what to do. She resisted most of his crazy ideas, too, but not as well as we did.

Still, it was a good case. Maybe not a slam-dunk, but three defects ought to have carried that day. I felt that this was a case where the jury ignored the evidence just because they did not like Mr. Ronamm.

Because of the three-pronged breadth of the case, Mr. Albert Fellows, chief local lawyer for GM, deposed me several times. I sat in on a couple of the deposition of the experts offered by GM where he also sat with them. Mr. Fellows, the lawyer for GM was a nice gentleman. I grew to like the man a lot because he was never nasty to Ms. Goodman or to me, unlike most of the GM people. He was an older man from Maine, with a courteous behavior toward everyone. He was just likable, even when questioning our CSI people.

THE REST OF THE STORY

Our side lost. Mr. Fellows did not gloat. Ms. Goodman did not pay CSI for our week of waiting in and around court, nor did she reimburse our expenses. Normally we would have a beef with the lawyer, the client of record. Because our earlier checks had come from firm that Ronamm owned, we sued him for the payment of $75 grand.

Wow – Mr. Ronamm counter sued CSI for causing him to lose his case because of our allegedly defective testimony. That was unusual. He wanted us to pay him for what he expected to have collected from General Motors.

So, now we have a stalemate. And, we find Ms. Goodman caught between both sides. In the end, she was no help to CSI. Months later, we learned that Mr. Ronamm hired a big-town trial lawyer, and they in turn hired another firm of forensic experts. Mr. Ronamm was going to get his millions one way or another – he thought. I do not know what the new experts told the jury, nor any other details of the second trial.

But, we at CSI were pleased to hear that GM beat Ronamm in that trial, too. That ended his case against CSI, and he finally settled his bill with us, too.

===== slam dunk 7679 words

[11] WHO WAS THE DRIVER IN A BAD CRASH?

There are cases where that is the question. Even without eyewitness accounts, a Crash Scene Investigator may be able to tell. First of all, assume that no one in the car wants to assume responsibility for the crash and injuries. If the collision was severe some of the occupants will be dead or unable to speak. There are two boys who might have been driving. Assume that the families of both boys have liability insurance. Which insurance company must pay? Who was the driver? Sometimes, but not always, the pattern of injuries tells.

A frequent example goes like this. A driver attempts a left turn into a cross street. He is in the path of another car with the right‑of‑way. He misjudges the speed of the oncoming car, and attempts a left turn that he cannot complete. Imagine the hard impact on the passenger door by a stiff "bullet" vehicle such as a pickup truck. Despite the stiffening beam built into the door, the door caves in. The bottom edge of the passenger door overrides the car‑body rocker sill, which allows much more inward deformation. The passenger is thrown away from the door with great force and speed by the direct impact of the crushed door ‑ almost as if the bullet car had struck him directly. He is like the baseball after it is struck by the swinging bat. Milliseconds later the intruding vehicle stops against the crushed front seat and car‑frame. Now the exchange of moment is fully implemented, and the struck car begins to accelerate laterally to the left.

From a viewpoint inside the car, it would appear that the driver is thrown to the right; actually the car was pushed leftward under him. Nevertheless, it the passenger is pushed leftward while the driver moves rightward as nearly the same instant. If there was considerable forward motion of the target car when it is struck, the side intrusion will effectively snag and arrest the forward motion and probably impart rotation. Thus, the two front seat occupants will be thrust forward as their car decelerates. The driver may impact the surface of the steering wheel and slide to the right, while the passenger may be thrown ahead into the center of the instrument panel, and possibly against the gear shift lever, whether it be a floor shift or a column‑mounted shifter. In more than one of my cases, someone driving much too fast for right curve, slides a bit off the road, returns too quickly and spins into the path of an oncoming vehicle moving at highway speed.

But if there isn't much forward speed of the struck car, or if it is hit hard on the passenger door hinges with a force coming from 1 or 2 o'clock (not directly on the side at 3 o’clock) the passenger could be thrown over a collapsing seatback and be found in the left rear, while the driver would be found in the right front area.

WHO WAS THE DRIVER IN THIS BAD CRASH?

This car crashed alone by attempting a highway curve at high speed. It went off the road, down into a gulley and slammed the passenger side into a stout tree. Then it overturned, with a lot of post‑crash motion and deformation. The driver side door opened when the car body bent around the tree. There were two unrestrained occupants, and both of them were ejected. I had this case with a crash anomaly which created the appearance that the two persons on the front seat might have exchanged places during a severe impact on the right side door.

The car in this case belonged to another person, who was in a following car and saw what happened from a distance. He was unable to say that he knew which of his friends was driving.

I looked at the evidence – medical descriptions of the injuries, and photos of the wreck. The witness had a vague description of the path of the car and the location of the boys.

The person who was the driver is likely to have injuries on his right side such as broken legs from hitting a floor shifter and console and probably depressed head injuries from hitting the instrument panel and windshield pillar. The driver might have the distinctive marks of the steering wheel rim on his torso.

The passenger will have severe injuries on his right side from the high‑force direct impact, and lesser injuries on the left from flying into contact with the left interior of the car. The passenger might have some granular glass pressed into his clothing and flesh by the impact of the tempered glass passenger door window. Either person might have slashes and slivers of imbedded glass from contact with the windshield. Because of the violent ejection, none of this was so clear.

I was working for of the lawyer who represented one of the families that sued the other and State Farm. I appeared at a deposition in mid-Iowa, attended by lawyers for both families and for State Farm Insurance. Using some scene diagrams, and photos of the interior and exterior of two vehicles as exhibits, I told the above story. I was careful to keep the conclusions as “probably-but-not-certain”.

At the end, I asked for permission to speak off the record. I noted that I knew that both families had State Farm insurance, and both had a teen age son that was brain-injured so as to require life-time care. The boys had been best friends. The families had also been very close.

“This is awful. Why do we need this lawsuit to determine which family will collect a fortune from the other’s policy? Please just stop. Drop the lawsuit - pay off the lawyers, pool the available funds and share the responsibility for caring for both boys.”

I was surprised. No one got angry with me for saying that.

===== who was driving 992 words

49,600 words total

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