Good Georgia Lawyer Continues its Series on SUV Rollover Deaths in Part Four:
The problem of rollover first made national news in 1980 when CBS’s 60 Minutes aired a report on the Jeep CJ, the model for many early SUVs. The report showed footage of an Insurance Institute of Highway Safety test in which the vehicle rolled over when conducting evasive maneuvers like a quick turn to avoid hitting something in the road. Despite the rollover risk, Americans flocked to the vehicle. Thus the auto industry began producing similar vehicles. Using the Jeep as a model, Ford introduced its first SUV, the Bronco II, which rolled out in March 1983 as an immediate hit. Throughout the 1980s, the company sold over 700,000 Bronco IIs — double their initial projections. Almost immediately, however, the Bronco II began to have rollover problems.
As deaths and horrific injuries mounted, Ford knew as early as 1981 that (1) its SUV’s were tipping onto two wheels at speeds as low as 20 miles per hour and that (2) it had considered shelving the Bronco II project during development. In the spring of 1982, Ford engineers recommended one important change: a 3 to 4 inch widening of the vehicle track, would produce a “major improvement” in “roll characteristics.” However, Ford ignored the safety and design recommendations of its own engineers and went into production after widening the SUV by just 4/10ths of an inch despite internal Ford cost projections that showed it would have cost just $83 per vehicle to widen the vehicle and lower the center of gravity to achieve a safe design. “Ford’s management — conscious of competition with GM’s Chevrolet Blazer” ignored their own engineers’ safety recommendations because it would have delayed “Job 1″ (the vehicle’s first date of production).” Thus, Ford “rushed to cash in on this rapidly expanding, high-profit market with little attention to the safety implications of their vehicle designs for SUV occupants and even less attention to the safety of motorists in other vehicles.”
However, Ford knew that problems would result from this decision. It would later be shown that in anticipation of rollover litigation, “realizing that the company’s own engineering documents showed that the Bronco II had a high propensity to roll over, injure and potentially kill a significant number of people who purchased it, Ford took the unprecedented step of gathering 113 specific documents critical to the defense in rollover litigation prior to the production of the first Bronco II.” Engineers were ordered to “sanitize” documents prior to collection: “over 50 of these documents disappeared, and none of these documents were disclosed to NHTSA during the 1988-1990 Bronco II investigation because Ford said it “didn’t notice” that the agency asked for these specific development documents.”
When litigation began to heat up, Ford paid a former company engineer, David Bickerstaff, $5,000,000 over eight years to lie in a series of 30 rollover cases. In June 1990, Bickerstaff sent Ford a letter in which he suggested $4,000 a day payment, to “assist you [Ford] in preparing me [Bickerstaff] to testify in Ford’s favor.” Before he was paid by Ford, Bickerstaff testified that as a Ford engineer, he was concerned about the Bronco II’s propensity to roll over. After being paid by Ford, Bickerstaff testified that while working for Ford, he was not concerned about the vehicle’s low stability index. Bickerstaff also helped Ford “rig a videotape designed to convince juries that the Bronco II was not likely to roll over, by loading a Bronco II with 900 lbs. of lead shot on the floorboards and seats in a manner that artificially lowered the center of gravity.”
Thus, in April 2001, a federal judge concluded that, as a matter of law, Ford and its witness Bickerstaff engaged in a conspiracy to commit fraud. In 2001, a federal judge in Goff v. Ford concluded that Ford had engaged in a conspiracy to commit fraud. In a 1999 decision, the Indiana Court of Appeals referred to Ford’s behavior in launching the “dangerous and defective” Bronco II as “highly reprehensible” and “the crassest form of corporate indifference to safety… of the consumer.”
Meanwhile, Congressman Tim Wirth (D-Colo.) was petitioning NHTSA to force changes in the basic design of SUVs. Additionally, NHTSA engineer Anna Harwin, was charged by the federal agency to study the issue of rollover safety and make a recommendation. Her analysis of the rollover crash data of early SUVs, showed “a pronounced and consistent pattern” of a relationship between a vehicle’s height and width and its propensity to roll over. “Congressman Wirth’s petition was now backed by NHTSA research, and all five NHTSA departments recommended that the agency consider regulation.” So why didn’t it happen despite these solid recommendations based in strong science? It is the author’s opinion that the auto industry had NHTSA head administrator Diane Steed, a Reagan political appointee in their pocket and that she consequently denied the Wirth petition. Her decision “preserved the basic design of the SUV, and helped set NHTSA’s future course on rollovers.” Later, Diane Steed would be paid by the auto industry as a lobbyist to attack fuel economy standards.
Joan Claybrook describes Ms. Steed as having had two jobs for the auto industry: “One, to try and defeat consumers who were injured in auto crashes from recovering; and secondly, to represent the auto industry’s position before Congress and in the public medium on fuel economy, and to try and, I think, mislead the public about the real facts.”
By 1989, the Ford Bronco II had become the primary target of consumer safety groups who petitioned NHTSA for a recall of the vehicle. Federal crash statistics showed that the Bronco II was one of the three most deadly SUVs then on the road, and the Insurance Institute for Highway Safety had rated it the most deadly.
While the Bronco was getting criticized by consumer rights groups (it failed tests conducted by Consumer Reports who warned its readers against purchasing the vehicle), Ford became concerned that their new Ford Explorer, scheduled to roll off the assembly line, would face similar condemnation. Ford’s engineers put the Explorer through the company testing site in Arizona and found that it repeatedly tipped up off the ground during the handling test, showing that it had the same stability problems as the Bronco II. Roger Simpson, the project manager for the Explorer, would later testify that Ford failed to widen the vehicle because it would delay the introduction of this new vehicle into the market, and Ford felt that delaying such a job would have been too costly. As with their decision during the Bronco production, Ford decided to put out a product valuing profits over the dangerous cost to human lives.
As such, the Explorer was introduced in March 1990 and it quickly became the best-selling SUV in the world, igniting the explosion of SUV sales. And as more and more consumers purchased pickups and SUVs, fatalities due to rollover began to rise astronomically. As a result, in 1991, Congress “passed the ISTEA: legislation which directed NHTSA to develop a stability standard and issue a rule by May 1994 to reduce head injury from contact with the upper interior of a vehicle.” Despite Congress’ directive, NHTSA failed to develop this standard, leaving American drivers unprotected from the dangerous vehicles.
In the 1990’s, Federico Peña, Bill Clinton’s Secretary of Transportation, announced a plan to place a ‘safety sticker’ with rollover ratings on all new cars and light trucks sold in the United States. Following Pena’s announcement, Congressman Bob Carr (D-Mich.), a strong defender of the auto industry, derailed the consumer information effort by pushing through a bill that froze all spending on the sticker initiative for two years. Consequently, in the face of these delays and strong opposition by the auto industry, NHTSA finally dropped the sticker initiative in 1999.
Then in February 2000, Houston television station KHOU aired a report that spotlighted the deadly tread separation problems of Firestone radial Wilderness ATX tires on Ford Explorers. In May 2000, after receiving 90 complaints — including reports of 33 crashes resulting in 27 injuries and 4 deaths — NHTSA launched a formal investigation. They would discover more than 200 deaths and 700 injuries just in rollover crashes of Ford Explorers equipped with the faulty Firestone tires. Consequently, there was a voluntary recall of 6.5 million of these tires. In June 2000, NHTSA proposed to rate vehicles on rollover, as part of its New Car Assessment Program (NCAP) and in January 2001, nearly seven years after Pena’s announcement of the “safety sticker” initiative, the first-ever rollover ratings were posted on NHTSA’s website.
Additionally, the Ford-Firestone experience sparked Congress to pass the Transportation Recall Enhancement, Accountability and Documentation (TREAD). Unfortunately however, this act was severely watered down by auto industry lobbyists who had a stranglehold on many members of Congress. As a result, the legislation was not as strong on protecting consumer safety as it should have been. For example, the act required a rollover test for consumer information. Nevertheless, this test had excessive limitations on protecting consumer safety.
As Joan Claybrook explained: “the dynamic test NHTSA used for this purpose only measures rollover propensity; it does not provide any information about rollover crashworthiness.” In other words, the test only measured the likelihood that an SUV might rollover–i.e. propensity, not whether the vehicle’s passengers would likely survive the roof crush-i.e. crashworthiness.
A year later in 2001, NHTSA issued its Advanced Notice of Proposed Rulemaking (ANPRM) on roof crush ; however, nothing came of the rulemaking effort until nearly four years later.
Regarding rollover propensity, NHTSA decided to disseminate consumer information about it through the New Car Assessment Program (NCAP). “From 2001-2003, NHTSA based its NCAP rollover ratings on a measure of the vehicle’s geometry, meant to estimate the relation between a vehicle’s center of gravity height and track width, which is referred to as the static stability factor (SSF). NHTSA began the process of adding a rollover rating to new cars in June 2000. “At the time, the rollover problem was worsening, with 9,527 fatalities in 1997 to 10, 856 in1999. The five-star rating system, based on a vehicle’s Static Stability Factor, would award one star to vehicles with an SSF of 1.04 or less and a rollover risk of 40 percent or greater and would award five stars to vehicles with an SSF of 1.45 and a rollover risk of less than 10 percent.”
In 2004, NHTSA added two dynamic rollover test maneuvers, which estimates a vehicle’s on-road, untripped rollover threshold.” “Untripped” refers to when a car is driving on a smooth pavement and is not “tripped” by an obstacle in the road. Claybrook explains that although important, NHTSA’s action failed to address the roughly 95 percent of rollover crashes that are tripped – when a vehicle starts to slide laterally and is tripped by mechanisms such as curbs, soft soil, pot holes, guard rails, or wheel rims digging into the pavement.
Consequently, in light of NHTSA’s failure to provide consumers information about occupant protection in rollover crashes, “inadequate information about rollover propensity, no improvement in the roof strength standard since it took effect in 1973, and no requirement for an improved belt performance in rollover crashes, rollover fatalities continued to increase, with 10,590 fatalities in 2004.”
In 2005, Congress passed the SAFETEA-LU, which mandated rollover prevention, occupant ejection mitigation, and roof crush occupant protection upgrades and in 2006, NHTSA in an effort to improve the dissemination of NCAP ratings the agency issued a Final Rule requiring manufacturers to place NCAP star ratings on the Monroney sticker (automobile price sticker) with a September 1, 2007 compliance date. Ohio Senator Dewine, Senator DeWine a sponsor of the legislation creating this “Stars on Cars” program, stated: “This measure just makes sense. By placing safety ratings directly on new car window stickers, consumers will have the ability to make more informed decisions right there on the car sales lot.”
Lena Pons, policy analyst at Public Citizen and expert on auto safety writes: “Displaying the New Car Assessment Program information on the window stickers is a great program. This bridges a consumer information gap that had been in place since the New Car Assessment Program was established in the 1970s. However, the rating for rollover only gives information about the likelihood that a vehicle will be involved in a rollover crash (i.e. propensity), it does not tell the consumer anything about the survivability of being an occupant in a rollover crash in a given vehicle. (i.e. crashworthiness)” (italics added)
Unfortunately NHTSA “failed to correct the significant deficiencies in the 2005 proposal -the agency still neither mandates testing on both sides of the roof . . . as the 2005 law requires.”
More troubling, in 2005 NHTSA, like many other federal agencies within the Bush administration, attempted to block injured consumers access to the court by promoting the doctrine of pre-emption. NHTSA stated in 2005 that its final rule should preempt state tort law jury verdicts. The agency argued that a state court judgment against an auto manufacturer for injury is equivalent to a state performance requirement for greater levels of roof crush resistance that would “frustrate the agency’s objectives by upsetting the balance between efforts to increase roof strength and reduce rollover propensity.”
Claybrook argues that the agency has not made a compelling case for preemption based on any scientific or policy basis. Rather, the tort system provides the best incentive for automakers to design safe products, and avoid placing SUV’s on the market that cause rollovers and life-threatening injuries. NHTSA increases public risk by reducing automaker accountability when arguing that state law tort claims should be preempted by federal regulations.
.Those “in a position to prevent injury or death should be held responsible for that injury or death when they fail to act. It is far more cost-effective, and the most responsible way to reduce the number of lawsuits brought against NHSTA is to avert harm in the first place.” Claybrook argues that consumer protection and adequate regulations encompass the ethical duty we owe to others out of respect for human life: “Victims of roof crush cases deserve justice because automakers have known for years (since the late 1960s at least) how to prevent injuries in rollover crashes but have not designed vehicles to prevent this harm.” In fact, the “1928 Ford Model A had superior roof protection to today’s vehicles.” Instead, auto companies today “cut costs to maximize profits, impose gag orders to cover up harm, and lobby regulators to weaken new rules.” Victims of this misconduct should be rightfully compensated by those who perpetuate such wrongs. Claybrook believes: “When those who can prevent harm choose not to and then are let off the hook, they, rather than society, should pick up the tab, paying medical bills and higher insurance costs, etc., caused by their wrongful actions.”
Additionally, improved motor vehicle safety regulations would have major positive economic implications for all of society. Using NHTSA’s own economic estimates of the cost of injury, “the more than 10,000 fatalities and more than 17,000 serious injuries cost society more than $50 billion annually. Even if building cars with strong roofs cost manufacturers as much as $100 per vehicle, that would amount to a total annual cost of only $1.5 billion, which would be more than justifiable if it only reduced rollover casualties by 10 percent.” In fact, corrective changes to reduce rollovers “would save a majority of the more than $50 billion cost of these crashes.”