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Vehicular Roof Crush Cases - Medical Malpractice Lawyers & Medical

By Tommy Turner,2014-06-28 19:51
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Vehicular Roof Crush Cases - Medical Malpractice Lawyers & Medical ...

    VEHICULAR ROOF CRUSH CASES

    DON’T TURN THEM DOWN

    (theory and basis of manufacturer liability

    when occupant injured by roof crush during rollover)

    By:

    Christian D. Searcy

    Searcy Denney Scarola Barnhart & Shipley, P.A.

    Post Office Drawer 3626

    West Palm Beach, FL 33402-3626

    561-686-6300

Christian Searcy has actively litigated civil cases involving catastrophic personal injury and

    wrongful death in Florida for the past thirty-one years. He has acted as lead counsel in the

    litigation of those cases both in representation of the plaintiff and of the defendant in

    virtually every venue in Florida. He is President and Chairman of the Board of the firm of

    Searcy Denney Scarola Barnhart & Shipley, P.A. of West Palm Beach, Florida. Christian

    Searcy received his Bachelor of Arts from the University of Virginia in 1970 and his Juris

    Doctor from Stetson University College of Law in 1973. He has been Director, Secretary,

    Treasurer, President-Elect, President and Past President of the Academy of Florida Trial

    Lawyers. He has been a member of the Rules of Civil Procedure Committee of the Florida

    Bar since 1980 (Chair-1985). He is an advocate of the American Board of Trial Advocates.

    He is a diplomat of the International Academy of Trial Lawyers, the American Trial Lawyers

    Association and the Academy of Florida Trial Lawyers. He was selected for inclusion in

    Best Lawyers in America by Naifeh and Smith in the area of civil litigation. He is Board Certified in civil litigation by the National Board of Trial Advocacy and by the Florida Bar

    Association. He has published and lectured extensively in areas pertaining to civil trial

    practice, personal injury and wrongful death. He is a member of the Board of Overseers of

    Stetson Law School. He has served as Chairman of the Judicial Evaluation Committee of the

    Florida Bar. He has served as Chairman of the Florida Bar's Standing Committee on

    Professionalism.

    A waitress accepts a ride home from a patron after the end of a long shift. Along the way the patron’s SUV veers off road and when the driver attempts to

    steer the vehicle back into his lane he loses control and it rolls. As fate would

    have it, the SUV rolls with its driver side leading. This seemingly innocuous fact

    relegates the waitress to life in a wheel chair as a quadriplegic while the driver

    suffers relatively minor, non-life threatening injuries.

     Unfortunately, this sort of accident is far too common. Catastrophic injury-

    producing and fatal rollovers happen to people like Penny Shipler (the waitress in

    the story), Robby Lambert (a promising young hockey player whose career was

    tragically cut short by paralysis when the SUV he was driving rolled over with its

    passenger side leading), Chad Granger (a high school wrestling star

    catastrophically brain injured when the trailing passenger side roof collapsed

    onto his head) and thousands of other Americans every year. While Ms. Shipler,

    Mr. Lambert and Mr. Granger’s rollovers were different in that two were driver

    side leading and one was passenger side leading, they are similar in that the

    defect that produced their injuries was a trailing side roof structure that rapidly

    collapsed in a rollover when exposed to relatively benign and easily manageable

    forces.

    Although it is almost unimaginable, 30 years ago the Department of Transportation was duped into regulating the strength of only one side of the roof

    of every vehicle on the road today. Deliberately misleading industry research

    efforts during those 30 years have reinforced the misrepresentation and thwarted

    remedial action, with the public paying the price in a human toll of 10,000

    fatalities and 17,000 serious to fatal injuries annually. That is a fatality and

    serious injury rate 3 to 6 times higher than any other accident mode.

    How is it possible? A generic defect was in effect regulated into every car, truck and SUV on the road, killing and maiming tens of thousands of people over

    thirty years. “In effect” because the industry convinced the Government to

    regulate the strength of the roof in one loading direction (the near side) and

    ignore the strength in the other direction, the far side. Surely someone would

    have detected it before. It can’t be true. There can’t be proof! Is there? If it is

    true, surely the Government is doing something about it now! Apparently not.

    There are plenty of Corporate scandals with executives making off with hundreds

    of millions of stockholder dollars, but we are too moral a society for corporate

    profits to be traded for tens of thousands of American lives. Right? Wrong.

    What are we talking about? Controlling occupant injury in rollovers by defining how strong the roof should be. In 1970 the government suggested that

    pressure should be applied to each side of the front of the roof in sequence to

    simulate a rolling vehicle’s roof contact with the ground. The industry claimed

that testing one side would weaken the other (which is exactly what happens)

    and convinced the Government that not only wasn’t it necessary, but that

    pressure should be applied, not just to the front, but to the whole side of the roof (thereby making the roof seem stronger).

    In the face of continuing industry misrepresentations each effort on the

    part of the government to understand and change the situation has been turned

    back. Then in 1990, a GM product liability litigation case, Buccolo v GM turned up the confidential underlying data proof of deception from discovery for the then latest research finding. Since then piece by piece, the deception has been

    unraveled, and a few months ago the confidential data was made public by order

    of a California Superior court, although even today the Government can’t believe the deception, while the industry seeks to maintain the status quo.

    What is the proof? In the main, mostly one side of the roof (the far side)

    crushes and mostly the people on that side are being seriously injured or killed. The side of the roof represented by the resistance to pressure in the

    Government’s compliance test (the near side) does not crush and people under it

    are not injured. Figure 1 and 2 shows the surprisingly gross disparity between

    near and far side roof crush and the serious-to-fatal and fatal injuries to belted and unbelted occupants in rollovers.

    Risk of Head/Neck AIS >=3 by Roof Crush for Near and Far Side, Front-Outboard Occupants in Rollovers

     Near side6%

    Far side 5%

    4%

     3%

    2%Injury Risk %

     1%

     0% No crush1-<3"3-<6"6-<12">12" Roof CrushFigure 1

    Near-SideFar-Side

    50005000

    45004500

    40004000

    35003500

    30003000

    25002500

    20002000

    15001500Incidence per YearIncidence per Year10001000

    500500

    00

    Belted /Unbelted /Unbelted /Belted /Unbelted /Unbelted /

    Non-Non-EjectedNon-Non-Ejected

    EjectedEjectedEjectedEjected

Figure 2: Distribution of AIS 3+ Injuries Near-Side and Far-Side Occupants by

    Ejection Status and Belt Usage (Based on SAE 2001-01-0176 by Parenteau,

    Gopal and Viano)

    Do you care why? It’s because although roofs are symmetrically strong,

    there is something about the far side roof that makes it crush much more and

    more frequently than the near side. What is it? Experimentation has ruled out

    the far side hitting the ground more violently and the occupant on that side diving

    into the roof, leaving the only possibility that the roof is somehow weaker on the

    far side. Further experimentation and measurement has shown that the far side

    roof hits the ground more sideways than the near side and that the structure is

    much weaker in that direction. Figure 3 and 4 illustrate these points.

    This is because ground contact resultant roof

    forces are similar but more sideways on the Far

    Side than on the Near Side

    Far SideNear Side

    50?*15?

    *This angle increases as the vehicle continues to roll. Figure 3 Forces on the near and far side roofs

    10? - 15?

    Figure 4 automobile pitch angles are typically 10 degrees while LTV’s are 15 degrees

    How is it possible that the strength of the far side roof affects the people

    who are unbelted and those that are ejected? The regulation which requires the

    roof to be strong in one loading direction (characteristic of the leading side), and

    ignoring the other direction (characteristic of the trailing or far side) created a

    generic defect in every car, light truck, van and SUV. Because there is no

    requirement to be strong in the other loading direction, the far side roof is not

    even strong enough to support the weight of the vehicle particularly after the

    windshield inevitably breaks in a multiple rollover. It then collapses and buckles

    rapidly into the head of a vehicle’s belted or unbelted far side occupant, often

    inflicting severe injury. Furthermore, four inches of roof crush on either side

    breaks both tempered glass side windows, opening paths for partial or complete

    occupant ejection and accounting for the equal distribution of unbelted ejections.

    A 50+ vehicle survey has confirmed that at Far Side

    impact angles, roofs can barely support vehicle weight,

    let alone 1.5 times the weightof the vehicle.

    9000

    8000

    7000

    6000

    5000

    4000lbs.

    3000

    2000

    1000

    01983 Cutlass1994 GMC1984 GMC1996 Ford F-1994 Toyota1994 Chevy1996 Ford1999 GMCCruiserSonomaJimmy2504RunnerSuburbanExplorerJimmyWagon

    FMVSS 216 Test Peak Value Claw Test Peak ValueVehicle Weights

    Pursuit of Justice Granger v. General Motors

     On March 9, 2002, 17 year-old Chad Granger, a high school wrestling star, was

    riding in the right front passenger seat of a 1995 Chevrolet Suburban driven by his

    neighbor, John McFeely, and his friend who was seated in the rear driver’s side seat of the Suburban. As they were traveling at approximately 65-70 mph down a four lane

    divided highway, a sudden emergency on the part of a vehicle in front of them required

    it to stop quite suddenly. The Suburban’s driver swerved to the inside lane to avoid

    collision. The Suburban was towing a trailer and as the driver turned right to correct for

    his sudden left turn, the driver lost control of the Suburban which skidded sideways

    driver’s side first. The Suburban then went into a roll with the driver’s side leading. All

three occupants were belted with three point restraints. The driver and rear seat

    passenger received no significant injuries. Chad Granger was devastatingly brain

    injured due to the collapse of the passenger side roof of the vehicle.

     Why didn’t Chad Granger walk away from this rollover accident as did the other

    two occupants of the vehicle? The answer, we contended, was the defective lack of

    crashworthiness of the vehicle’s roof.

     With the guidance and help of Donald Friedman, Goleta, California, we proceeded

    to marshall the evidence necessary to prove the Suburban’s roof was defective and that

    General Motors knew the roof was defective. The case was set to begin trial on August

    15, 2004. We were prepared to prove that although the Federal Motor Vehicle Safety

    Standards require all vehicles in the the United States to have a roof strength that will

    support 1.5 times the weight of the vehicle, that General Motors and most other

    manufacturers have thwarted the intent of this safety regulation by relying on the

    windshield for a significant portion of the roof strength. The Suburban’s roof can

    withstand 1.5 times the weight of the vehicle on the driver’s side of the roof over the A-

    pillar, or alternatively on the passenger side of the roof of the A-pillar. However, in a

    rollover when the leading side of the vehicle’s roof strikes the ground, the windshield

    shatters. When the trailing side of the roof strikes the ground and the windshield is no

    longer present to provide strength, the roof collapses above the trailing side passenger

    seats. This predictable sequence of mechanical events caused the trailing side of the

    roof to collapse when it struck the ground. The intrusion of the roof into the passenger

    side compartment crushed Chad Granger’s head severely brain injuring him.

     This completely predictable set of mechanical events resulting in trailing side roof

    crush has been happening with most vehicles in the United States for over three

    decades. General Motors is well aware of the trailing side roof collapse phenomena in

    their vehicles attested to by the fact that they insert roll bars inside the passenger

    compartments of their vehicles in their testing ground, to provide the strength that their

    roof lacks.

     During the discovery phase of this trial, General Motors promoted a very narrow

    view of what was discoverable hoping to limit the plaintiff’s to discovery of only the

    Suburban roofs for the year of the accident vehicle. Plaintiff’s brought Donald Friedman

    before the trial judge to give testimony as to the relevance of the entire platform of

    vehicles. With the assistance of Mr. Friedman educating the trial judge as to why the

    entire platform of vehicles was relevant, the trial judge was then able to use his common

    sense to realize an expansive view of discovery was necessary to develop the relevant

    evidence.

     The substance of this outline reflects the compelling theory of liability for roof crush

    cases of all makes and models of vehicles, which I learned through the Granger and

    other roof crush cases and largely through the tutelage of Donald Friedman.

    Although manufacturers have known about this defect for decades: well before they designed and built most of the vehicles currently on the road, their litigation posture

    is that their vehicle meets every applicable Federal Motor vehicle standard including

    FMVSS 216 which regulates roof strength. The popularity of SUV’s as a substitute for

    the family car (now accounting for 50% of vehicle production and sales) has

    exacerbated the problem such that rollovers of SUVs, account for nearly half of all

    seriously injured occupants and 61 percent of all fatalities. But because these

    automakers deny the existence of the defect and aggressively defend product liability

    claims, fewer than one percent of these injuries and deaths lead to the filing of product 1 liability cases against manufacturers.

    In many of the SUV cases filed, plaintiff’s claim that the primary defect is the vehicle’s high roll propensity, while the defense often successfully holds that it is typical

    of all SUVs and the injuries occurred because the occupants were unrestrained and

    therefore ejected. However, the authors have been successful against GM and Ford,

    who were documented participants in the original deception and when the roof strength

    defect is made the heart of the plaintiff’s case. For those manufacturers, specific

    discovery documents are available and introduced that relate head and neck injury, as 2well as ejection to roof crush, through broken tempered glazing.

    Presenting the Roof Defect

    The successful strategy in Granger was to prove that the vehicle, a late model

    Chevrolet Suburban, was defective in that it has a dangerously weak roof that can inflict

    severe injury in a rollover. Further, if a reasonably constructed roof, costing only slightly

    more per car, had been used by GM in the same rollover accident, no serious injuries

    would have occurred.

    The evidentiary task was to demonstrate that the roof defect caused the plaintiff’s injury and that the manufacturer knew that it would and yet made and sold the vehicle with that inherent hazard. In both its statements to the government and in court,

    industry representatives were shown to have lied about the defect.

    The step-by-step sequence of the tragedy began with the fact that GM sold the accident vehicle, an SUV, to a member of the public as a vehicle safer than a

    passenger car. Neither GM nor its dealer gave the buyers any special warnings or

    instruction on the special challenges posed by this vehicle beyond a meaningless

    warning required by the government attached to the sun visor.

    A truck-based SUV, such as the Suburban, can go out of control much more easily than a passenger car. It is more likely to over steer, which means that the rear of the

    vehicle will slide out so that the vehicle becomes lateral to its direction of travel. As they

    begin to slide sideways, particularly with the transient dynamics of an emergency

     1 From GM’s 20 years of S-10 and C/K truck production, the Fatal Accident Reporting System counts

    7,000 and 19,000 respective rollover deaths and NASS/GES calculates 11,000 and 30,000 injuries in

    those vehicles. GM reports only 470 product liability claims in those 26,000 deaths and 41,000 serious to fatal injuries. 2 The GM Malibu I and II rollover test experimental data and their Vehicle Safety Improvement Program

    developments of the eighties were confidential documents until very recently.

maneuver, these tall vehicles have a three times higher potential to roll over than do

    cars.

    When the vehicle rolls and its roof hits the road or ground for the first time, the impact typically breaks or separates the windshield. That might not be a problem

    except that the windshield and its bonding contribute nearly a third of the roof’s strength.

    That leaves it so weak that it cannot even support the vehicle’s weight when lowered on 3to the front corner of the roof.

    On a subsequent roof impact, typically on the second or third roll, the roof buckles and collapses just from the weight of the vehicle. The side of the roof that was initially

    trailing before it began to roll, was particularly vulnerable to damage because the impact

    with the ground includes both the vertical deceleration of the vehicle and the friction

    forces that put significant lateral forces toward the inside of the compartment on the roof.

    When the vehicle is rolling the front is pitched down so that when the roof deforms, it isn’t flat against the ground and collapses (usually sideways and rearward) and

    buckles inward. Its motion into the occupant compartment magnifies the vehicle’s 4vertical drop speed, which is typically less than 5 mph. If a person’s head is in the path

    of the rapidly intruding roof, the roof intrusion is likely to inflict severe head or neck

    injury.

    Rollovers are not inherently violent in comparison with other crashes that seriously injure people (i.e. they do not involve basic impact forces that are not easily survivable).

    Thus, it should not matter whether a vehicle rolls once or several times. However,

    because of the weaknesses of most vehicle roofs, each roll of a defective vehicle

    intensifies the damage, the potential to inflict injury on an occupant, and the potential for

    occupant ejection. By contrast, when a vehicle with a strong roof rolls over, it would feel

    to its occupants like an exceptionally exciting amusement park ride. They might get 5some bumps and bruises, but would not be seriously injured. The weakness of

    contemporary vehicle roofs was illustrated by using auto company documents and low

    cost demonstrations of human occupants in dynamic rollover and drop test fixtures.

     3 This behavior was demonstrated very effectively with a Chevrolet Suburban by removing the

    windshield and inverting the vehicle so that the front corner of the roof rested on an industrial scale. As this 5,200 pound vehicle was lowered onto the scale, by the time the scale registered 3,800 pounds, the roof had crushed more than the 5 inches specified in the Federal standard. The roof could not even support the vehicle’s weight under these static conditions. 4 As the vehicle rolls, it only barely rises above the surface of the road or shoulder. Five mph is the

    speed at which bumpers are expected to protect vehicles from significant damage, a fact not lost on juries. 5 This point was demonstrated with tests involving human subjects including one of the authors. These

    tests included dropping an inverted vehicle body buck with a strengthened roof and a well-restrained occupant whose head was on the roof from a height of up to 3 feet. The human test subjects were

    uninjured. In another experiment, a body buck was mounted between two large hoops that could carry the body in a manner similar to a rollover. Again, several restrained occupants within the body buck didn’t move like dummies and were uninjured when the device was rolled multiple times.

    6Despite the explicit language in the statute, manufacturers always tout the fact

    that they comply with all Federal motor vehicle safety standards. But, most jurors

    understand how powerful corporations can exercise undue influence over the

    government.

    The Malibu Data

    The principal proof of the roof defect and how it causes injury comes from General Motors’ discovery on the Chevrolet Malibu rollover tests, conducted in the 1980s. Film

    footage from these tests showing a restrained dummy’s head being struck by a

    production vehicle’s collapsing roof, and substantially crushing its neck, is dramatic

    indeed. By contrast, film of test vehicles with roll cages installed to support the roof

    showed neither significant diving nor injurious head impacts. This material was

    particularly useful in refuting the industry’s contention that rollover injuries are similar to

    the injuries sustained when diving into a shallow pool.

    Specific Case Presentation

     The case presentation had the following key elements:

    ? Only one primary claim is made concerning the generic roof strength defect and

    how it caused the injury.

    ? That claim is based primarily on material obtained from the defense in discovery

    and on tests and demonstrations illustrating the defect.

    ? The presentation was supplemented with case specific expert studies, tests, and

    demonstrations.

    ? Each experts’ direct testimony offered a memorable highlight that contributed to

    the jury’s understanding of the primary claim.

    Accident Reconstruction. The case should begin with a reconstructionist who

    sets the stage by describing how the rollover occurred and providing knowable details of

    the vehicle’s motion as it rolled over. This is important, not because the detail provides

    evidence that proves the defect, but because it gives jurors some confidence that they

    understand what happened in the crash.

    A properly focused reconstruction introduces the jurors to concepts that help them understand the defect: the propensity of (in this case) sport utility vehicles to go out of

    control and roll over; that each side of the roof on each roll hits the ground with the

    same low severity; the fact that on the first roll the windshield breaks out; that on

    subsequent rolls the initially trailing side collapses and buckles the roof; and that the

    occupant on the initially trailing side is the one who is severely injured. It is rare (unless

    the roof collapses on both sides) than any other occupant receives severe to fatal

    injuries in a rollover. It also provides an opportunity to make the point that the details of

    the reconstruction are not critical to the defect. What is critical is the fact that the

    vehicle rolled over and that the roof over the plaintiff did not protect him or her.

     6 The National Traffic and Motor Vehicle Safety Act states, “Compliance with any Federal motor vehicle

    safety standard issued under this title does not exempt any person from any liability under common

    law.” 15 U.S.C. 1397(k)

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