The Hilgenbergs’ wrongful death complaint is the latest in a string of lawsuits that claim the NFL distorted and buried its own research and ignored repeated warnings that head injuries can lead to delayed neurological disorders and death.

More than 40 former NFL players and their wives, including current NFL Network analyst Brian Baldinger, filed another federal complaint against the NFL Philadelphia on the same day the Hilgenberg family filed.

Both complaints claim that the NFL was aware for decades that players who suffered repeated concussions were more likely to suffer symptoms of post-traumatic brain injury, such as dizziness, loss of memory, dementia, Alzheimer’s disease and encephalopathy, but the league it failed to “act reasonably by developing appropriate means to identify at-risk players and guidelines or rules regarding return-to-play criteria.”

“The defendant’s breach of duty in this respect increased the risk of long-term injury and illness,” according to the Hilgenbergs’ complaint. Hilgenberg, who died at 66, retired from the NFL in 1979 and went on to run a successful real estate business with former teammate Stu Voigt. In 2003 he began suffering memory loss and muscle weakness. He died in September 2008 at his home in Lakeville, Minn.

Family members and friends were told it was from complications associated with Amyotrophic Lateral Sclerosis (ALS), or Lou Gehrig’s disease. Some of Hilgenberg’s organs were donated to the Boston University School of Medicine, but it wasn’t until 2010 that the school’s Center for the Study of Traumatic Encephalopathy announced Hilgenberg’s death was due to Chronic Traumatic Encephalomyopathy, according to the complaint.

The Hilgenbergs claim the NFL had been aware of the dangers of repeated concussion as early as the 1960′s, though as late as 2009 it was still publicly trying to refute the findings of its own self-funded research.

“On September 30, 2009, as a part of its continuing active role in disputing and covering up the causative role of repeated concussions suffered by NFL players and long-term mental health disabilities and illnesses, the defendant disputed the results of a scientific study that it funded,” the Hilgenbergs say in their complaint. “On the aforementioned date, newspaper accounts were published detailing (an unreleased) study commissioned by the NFL to assess the health and well-being of retired players, which found that the players had reported being diagnosed with dementia and other memory-related diseases at a rate significantly higher than that of the general population. Despite the findings of this study, showing that 6.1 percent of retired NFL players age 50 and above reported being diagnosed with dementia, Alzheimer’s disease and other memory related illnesses, compared to a 1.2 percent for all comparably aged U.S. men, the defendant’s agents disputed these findings and continued the mantra in the press that there is no evidence connecting concussions, concussion-like symptoms, NFL football and long-term brain illness or injury, including but not limited to Chronic Traumatic Encephalopathy (CTE), dementia, etc.” (Parentheses in complaint.)
In February 2011 longtime Chicago Bears defensive back Dave Duerson took his own life, shooting himself in the chest, “presumably to preserve his brain,” according to contemporary news reports.

Duerson had been suffering from a “moderately advanced” case of chronic traumatic encephalopathy. Pathologists who analyzed Duerson’s brain called it a “classic” case of chronic traumatic encephalopathy. Doctors at Boston University told Time magazine at the time that of the 15 deceased NFL players they had studied, only one did not have CTE, which can only be diagnosed post-mortem.

The Hilgenbergs seek damages for claims concealment, civil conspiracy and negligence.

They are represented by Larry Coben and Sol Weiss with Anapol, Schwartz.

In the second complaint, the NFL veterans and their wives, led by Britt and Bridgette Hager, are represented by Gene Locks.

Yet another lawsuit has been filed in Philadelphia by retired pro football players against the National Football League. Nearly 200 former players are now involved in lawsuits against the league over brain injuries.

The latest suit alleges the NFL hid evidence linking concussions to permanent brain injuries. It joins at least 10 other similar suits filed across the country.

Attorney Larry Coben filed the first of these federal concussion suits in Philadelphia last year.

“They’ve all basically followed our approach to the lawsuit in terms of the claims,” said Coben. “They pretty much mirror each other.”

Coben plans to file additional lawsuits this week on behalf of deceased players believed to have died from ALS, commonly known as Lou Gehrig’s disease.

“Turns out, they didn’t have ALS,” said Coben. “Their families donated their organs, including their brains, to the Boston University medical college. Analysis shows they suffered from what’s called CTE.”

That’s chronic traumatic encephalopathy — a progressive, degenerative disease of the brain found in athletes with a history of repetitive brain trauma.

On Thursday, a judicial panel will meet to consider consolidating all of the lawsuits into one that would be argued in Philadelphia.

Originally published  January 23rd on Newsworks

Related Article:
BRIEF: Larry Coben Takes on the NFL

A December 2011 New York Times story considers just that issue. At stake: the future care for over a hundred retired National Football League players and their spouses, who assert in a series of lawsuits that team owners, helmet manufacturers, and the NFL itself knew about the dangers of concussions during play — or, at least, they should have known about those dangers, yet looked away.

Larry Coben, an attorney with Anapol Schwartz, represents seven retirees, including famed Chicago Bears quarterback Jim McMahon. In the New York Times article, he makes the case against the league in stark terms: “We believe that the long-term medical complications that have been associated with multiple concussions — such as memory loss, impulse anger-control problems, disorientation, dementia — were well documented, and that factually the N.F.L. knew or should have known of these potentially devastating neurological problems, and yet it didn’t take any active role in addressing the issue for players.”

The science of head trauma

The Times hints that the NFL’s defense against these lawsuits will be to claim that the NFL has always placed a high emphasis on safety. The evidence of this is mixed, however. The players and their attorneys argue that the NFL rejected conventional medical advice on head trauma, and in 2007 even informed players that “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly.” They also claim the league’s doctors produced research — later discredited — that minimized the risks to players.

In fact, medical studies over the last decade have shown that football concussion injuries are associated with severe challenges later in life. Retired NFL players who had received concussions in their careers “reported more problems with memory, concentration, speech impediments, headaches and other neurological problems than those who had not,” as determined by a 2000 survey. A 2007 study found that multiple career concussions was linked to depression in NFL retirees at triple the rate of uninjured players. In 2009, a study found that Alzheimer’s disease and similar memory impairments may affect former NFL players at a rate of 19 times the normal rate for men ages 30 through 49.

The changing climate of public opinion

The Times report suggests that public opinion may have a huge influence on these lawsuits. Certainly the NFL would like to dismiss the suits as mere nuisances, but the potential danger to the league’s image probably makes that impossible.

Recent legal controversies dealt with arcane issues — such as merchandising and antitrust exemptions — that were unlikely to stir the passions of everyday sports fans. A parade of retired football heroes testifying how NFL neglect lead to their mental disabilities would be different.

It would be a public relations disaster for the NFL. “The notion of retired players telling a jury the league is at least partly liable for their dementia and other cognitive disabilities is an entirely different matter, legal experts say, because the players’ testimonies are bound to get a sympathetic audience and cast a shadow over the league,” reports Ken Belson in the New York Times.

Related Article:
BRIEF: Larry Coben Takes on the NFL

Wellbutrin was touted as the safe antidepressant during pregnancy. Other antidepressants like Zoloft, Paxil, Prozac, and Celexa are known no-no’s during pregnancy.

The American Journal of Obstetrics & Gynecology recently published a study alerting doctors about women taking Wellbutrin during the first trimester and the risk of congenital heart birth defects. Mothers who used Wellbutrin during early pregnancy had more than double the risk of heart defects compared to infants whose mothers did not take Wellbutrin.

Wellbutrin babies suffer the following heart afflictions:

• Atrial septal defect (ASD)
• Coarctation of the aorta (CoA)
• Heart ventricle outflow track defects
• Pulmonary stenosis (PS)
• Thickened heart muscle is right ventricular hypertrophy (RVH
• Ventrical septal defect (VSD)

Nobody likes to think about lawsuits but your baby may need expensive life-saving and life-improving medical procedures that your health insurance will probably not cover or most certainly not cover in its entirety. Your baby will need costly care giving, expensive prescription drugs and perhaps medical devices, and ongoing therapy. Your baby’s pain and suffering will entwine with your emotional pain and suffering.

A Wellbutrin personal injury lawsuit can help pay for your medical bills and expenses.
A word of caution: Don’t wait and don’t dwell. Before you know it, too much time passes and in Arizona and Pennsylvania, personal injury lawsuits must be filed within two years of the date when the injury occurred. Please contact Attorney Larry Coben to find what legal recourse you have.

The production vehicles of the 1970′s which included air bag systems used compressed gas (sodium azide) in a chemical can which rapidly inflated the airbag by ignition and conversion to harmless nitrogen gas when sensors detected a pre-planned “severe” frontal crash. Publications in recent years have analyzed the field performance of these older systems. Looking just at driver’s side airbag system performance, these authors determined that the system was found to be 21% effective in preventing AIS 3+ injuries, but was -34% ineffective for AIS 2+ passenger injury. Many of the airbag inflation injuries found in the research of the systems performance — as well as the much more recent data obtained since 1989 — occurred in moderate severity crashes without distortion of the occupant compartment. Thus, the deployment of an airbag under some circumstances has the potential to seriously injure or kill, and it does not always depend upon the severity of the crash. As David Viano of the GM Biomedical Science Department stated a few years ago,

“The high energy release of an airbag may injure an occupant against the system at the instant of deployment. Blocking the path of deployment increases pressures in the cushion during gas generation and develops high forces on the occupant. Since the force occurs with high velocity, there is a risk of injury by a Viscous mechanism.”

As a result of the federal government’s delay in the starting date of mandatory passive restraint criteria, [FMVSS 208] automobile manufacturers chose not to pursue the mass production of motor vehicles with air bags until the late 1980s. In the calendar years 1980 and 1981, Daimler Benz introduced in Europe a test fleet with full frontal protection by air bag restraint.  Then in the 1982 model year, Daimler Benz introduced a driver’s side air bag system (along with a manual lap and shoulder belt) in Europe, along with a three point passenger side manual seat belt with a pretensioner retractor. Daimler Benz then introduced air bag systems to the U.S. market in 1984, offering it first as an optional piece of equipment and then it became standard equipment. Chrysler Corporation became the first American manufacturer in the 1980′s to introduce air bags into its vehicles. And, with time, the remaining manufacturers have installed air bags for both driver and passenger positions — as a direct result of the mandatory passive restraint performance criteria adopted by the NHTSA. It is estimated that by the year 2000 there will be over 50 million vehicles on the roads with air bags, and each year there will be literally hundreds of thousands of air bag deployments.

Over the past five years, researchers have made a concerted effort to collect and synthesize accidents in air bag equipped vehicles. The intent of these papers was to generally detail the injury patterns of air bag protected occupants, so that vehicle designers and medical practitioners can consider the nature of the harm and benefit of this safety device.

The air bag system, like any other safety device, needs to be viewed in connection with the benefits and risks it poses; that analysis is important if efforts are to be made to minimize the risks associated with air bag equipped vehicles. Some researchers have extrapolated current accident data to estimate that by the year 2000 there will be over 200,000 injuries per year in the United States alone, which are induced by air bag deployment.  What kinds of injury patterns are evolving and are there vehicle design features implicated by these patterns of injury?

Before analyzing this issue, it is critical to stress that air bags and seat belts save lives. Every vehicle which includes an air bag system provides for incremental safety that was unavailable to Americans during the 1970s and 1980s. While inflatable restraints are not a panacea, they are a significant advancement in the quest to reduce trauma on our highways. How well these devices function in specific accident scenarios does, however, vary because of design features, variability in accident modality and occupant kinematics.

A review of over a dozen recently published papers has allowed for a study of the details of one hundred and twenty-two frontal accidents involving air bag deployment. While there are differences of opinion about the causative relationship between air bags and injury, it is necessary to account for the trends in the accident data. It is also important to study the causative relationship between some of the events precipitating fatalities and the deployment characteristics of the air bags installed in vehicles. This analysis can only lend credence to the adage that everything we do can be done better.

Injuries versus Fatalities

As one would expect, most of the reported injuries and deaths due to air bag deployment involved drivers rather than front seat passengers. In these data there were 16 driver fatalities and 4 passenger fatalities — exclusive of the more than 20 fatalities to children positioned in the front passenger position. While the proportionate number of fatalities to injury is not necessarily out of the ordinary statistical range, what is unusual are other patterns emerging from these fatalities.

Accident Velocity

In the twenty fatalities reviewed here, it was observed that a majority of these motorists were female and under 50 years of age and unbelted. However, there was no injury pattern between the belted and unbelted fatalities. Between the two groups, there was a proportionately equal number of deaths due to brain injury and spinal cord trauma. What was somewhat unexpected is that the majority of these deaths — whether the motorist was belted or unbelted — occurred in accident sequences which can only be characterized as low velocity collisions.

The risk of injury from an inflating air bag has been a consideration for all occupants for many years. Laboratory studies confirm what we are now seeing in field accidents: “high” loads can be developed on occupants who are within the path of an inflating bag. While many writers have called this situation the “out of position condition,” it is more accurately described as the “near position condition.” This is so because circumstances causing impact to the occupant happen when he or she is properly using the vehicle and “happens” to be positioned too close to the bag. As in other dynamic circumstances, the risk of injury depends on the system tested, the environment and the alignment and position of the occupant at the time of bag inflation. Clearly the human body parts at greatest risk are the head, neck and torso because of their (foreseeable) close proximity to the system. Real world “near position” injuries are associated with a wide range of crash severities, but most troubling are those circumstances when the Delta V is below 25 mph, because these are accident circumstances which should, ordinarily cause little or no serious injury. This exposure to injury occurs under a variety of scenarios, including the driver or passenger who has slumped forward from illness or drowsiness; or moved forward because of multiple or singular minor impacts, displacing the occupant forward prior to a more severe impact causing inflation. Likewise, during pre-impact braking both the restrained and unrestrained occupant will displace forward; most seat belt systems do not provide in their design for retractor lock-up until the vehicle has experienced a .6 to .7 g, which would allow the belt to spool out somewhat before impact. Additional problems allowing for the “near position” are: occupant size, seat adjustment, steering column or wheel tilt adjustment, seated posture, and inflation timing.

Laboratory studies have demonstrated that “near positioning” can result in substantially higher head, neck and chest accelerations then one would ordinarily expect for the seat belt restrained occupant — because of air bag inflation rates. Melvin, Horsch and others at GM have reported that testing reveals a real potential for increases in head acceleration, neck forces and moments, and a high risk of serious chest injury.

One detailed example of fatal injury from air bag inflation at low velocity (reported in the literature) is presented here.

Illustrative Case Example

The accident in question involved a 1990 Dodge Shadow that was involved in a center frontal impact sequence with utility pole, which deployed its supplemental driver air bag system. The vehicle was driven by a 36 year old female, who weighed about 115 pounds and stood 5’1.” At the time of the crash the driver was alone in the car and she was wearing her seat belt system. For some unknown reason, the driver of the Shadow veered out of her path of travel, crossed over one lane of travel and left the roadway. The left front corner of the car impacted a fence post and sightly redirected the car into a 10″ diameter utility pole, located a few feet away from the fence. The PDOF was 12 o’clock and there was a velocity change of 14.4 mph (calculated based upon 14.5″ of bumper crush).

The driver of the Shadow had her seat adjusted to a forward position and the tilt steering column set to the center adjustment point. The following injuries were found:

The kinematics ascertained by the Calspan investigation team were that the driver’s close pre-impact proximity with the steering wheel caused very little time for the seat belt to lock-up and restrain the driver. The driver did load the shoulder belt webbing enough to cause contusions and her knees did load the knee bolster. However, because she was within the deployment range of the bag, she suffered substantial chest loading, which caused her fatal injuries. The vehicle was subsequently repaired and is out on the road again.

Injuries attributable to accidents with airbag deployment have also been categorized in this review. In the 122 cases studied, 102 injury cases were reviewed. The majority of the injured motorists in this study were seat belted.

Injuries in Airbag Deployed Accidents

From the standpoint of a societal analysis, it was somewhat disconcerting that six motorists in reportedly low speed crashes suffered devastating spinal cord trauma. In all but one of these cases the injury was to the cervical spine, with several at the C1-C2 level to youngsters under the age of 10.

Discussion
Air bag induced injuries are, by the very terms used, injuries caused when a motorist is impacted by an inflating air bag. NHTSA has informed Congress that air bags can have adverse effects for small-statured people, older people and out of position occupants. This review of the cases reported in the literature confirm those conclusions and identify additional risk factors. The questions raised by our analysis of these accident cases are the following:
1. What can be done to minimize the risk of injury or death when an occupant is unrestrained?
2. What can be done to improve the performance of seat belt restraint systems to maximize the distance available to the air bag to inflate — without impacting the occupant?
3. What can be done to lessen the impact forces of an inflating air bag?

Unrestrained Occupants
The accident data suggests that air bag induced injuries to unrestrained occupants are a result of the occupant moving “out of position” and being struck by the inflating air bag during low speed collisions. The obvious solutions to this dilemma are to compel seat belt usage, change the deployment timing, and alter the deployment rate. To minimize the risk of deployment induced injuries, air bags should be designed to deploy faster when the seat belt is not worn. This allows for complete inflation before the occupant moves substantially forward in the seat.

Restrained Occupants
A high number of head and neck injuries have been reported in air bag deployments even when the motorist is restrained. The mechanics of this type injury suggest that the seat belted occupant is moving forward in a relatively upright position and coming into contact with the inflating air bag so that the neck is either placed in compression or extension. To minimize seat belt excursion to the “out of position” stage the seat belt must be designed to lock-up when deceleration of the vehicle first begins — through braking — or as a result of occupant movement within the seat belt — by using web sensitive retractors which are tuned to lock up at .35g. Additionally, the environment of the driver’s position needs to be studied to deal with people of small stature. Some possible incremental solutions would include adjustable pedals, a pretensioning retractor and changing the characteristics of deployment — including a reduction of the deployment rate, tethering the bag, and widening its coverage which would also reduce “bag slap.”

Lessen Impacting Forces
The current state of the art would allow air bags to be designed with improved folding patterns, special fabric coatings, and modifying the deployment rates. These changes will “soften” the impacting forces to the air bag. Undoubtedly, these changes will provide incremental improvements and changes in injury potential.

Conclusions
Educating the public to the need to remain as far away from the air bag container is critical to a reduction in deployment injuries and deaths. Both motor vehicle manufacturers and the government have a responsibility to alert consumers to these inherent risks in the current air bag modules. Until other design changes can be filtered into the restraint systems in vehicles, the only answer to this risk-benefit is one of instruction and warnings. Motorists need to be informed of the grave risk that they can be exposed to by a safety device that must still be viewed as a life saver.

View Report

While the litigation posture of the motor vehicle industry has been to consistently deny the importance of roof structure in preventing catastrophic injury to belted occupants, even these staunch opponents of structural safety have been caught saying the opposite within the confines of their hallowed halls. This is the story of one of those companies and the choices it made, which have condemned thousands of people to suffer catastrophic injury.

In 1987, the Harris family decided to purchase a new van. They purchased a 1987 Ford Econoline conversion van, which fit their needs. The sales brochure, which enticed these folks to buy the Econoline, touted its safety features, including a “safety-related roof structure.”

Several years later, while the Harris’ were on vacation in North Carolina, an accident ensued which led to the virtual destruction of Mr. Harris’ life, as he then knew it. While they were driving along Interstate 40, another car went out of control and struck the left rear corner of the van. The van yawed counterclockwise, tipped up and rolled over. After rolling three times, the van came to rest on the passenger side (where Mrs. Harris was seated.) While Mrs. Harris and her four children literally walked away, their husband/father was not so fortunate. As shown below, during the accident event, the front driver’s portion of the van caved in more than twenty inches.

As this occurred, the seat belted driver was struck by the collapsing roof, causing his head and neck to be compressed and forced into violent flexion—resulting in both spinal column fractures and spinal cord injury. Mr. Harris was instantly rendered a quadriplegic. The tragedy of this exact type of accident and injury has been documented over the years by researchers around the world.

As this article is being written, there is an ensuing debate between the NHTSA, the automotive industry and consumer organizations concerning the necessity to modify FMVSS 216 to obtain stronger vehicles. Yet, never before publicly revealed internal documents demonstrate the inconsistency of the industry’s public position. And, just as importantly, we have now learned that the industry’s public posture is fully dependent upon its litigation defense to the victims of roof crush. Here is the evolution of this debate, which ultimately caused the violent irreversible injury to the Harris family.

In the 1960s and 1970s, on this continent and in Europe, car companies observed that occupant safety was dependent upon the preservation of vehicle survival space. At Ford, its auto safety engineers warned that people have been injured by roof crush and that with the development of effective seat belts and the industry’s push to enact mandatory seat belt laws, there should be serious concern that belted occupants will be at greater risk of injury because of roof crush (since they will remain relatively upright during rollovers). Through the 1960s and early 1970s, Ford and General Motors engineers wrote that it was critical to maintain survival space so that the vertical space defined by the seated height of at least a 50% percentile person is not violated.  At the same time, Ford, General Motors and the Society of Automotive Engineers (SAE) debated whether roof strength should be judged by a dynamic or static test. The SAE proposed conducting drop tests from two feet to establish a repeatable procedure, which would allow car companies to design to prevent massive intrusion. This testing by Ford established that its current product line would not meet such a criteria. General Motors reached the same conclusion and then developed a static push test intended as an alternative to the SAE drop test. The static test method was then proposed to NHTSA and incorporated into its suggested roof crush standard. As proposed, FMVSS 216 would have required testing in succession to both sides of the roof structure by applying the load plate onto the roof at the front A pillar/windshield intersection on the driver and passenger sides. The proposed standard also required that the plate not move more than 5 inches before the force reached 1.5 times the weight of the vehicle. The auto industry opposed these criteria. Ford advised the government that testing the second side was unnecessary since the results would not be different—stating specifically that the vehicle’s windshield would remain in place and thus there would be little difference in the performance of the vehicle’s structure. Ford and other industry representatives asked that the crush criteria be extended to 10 inches and that the strength to weight ratio be lowered to 1 time the vehicle’s weight. Fortunately, the NHTSA rejected the proposed changes in strength to weight and crush displacement. But, unfortunately, the NHTSA withdrew its criteria that the second side of the roof be tested. That decision has singularly led to the production of millions of vehicles that have less than one-half the strength of 216 test results once the windshield is damaged (e.g., “second contact”). The following chart summarizes that result.

During the development of the federal minimum standard, the industry also honed its public mantra that roof crush may be “associated” with injury, but there is no evidence that it is “causally” related. What no one really understood was that this assertion was not based upon any scientific study. Instead, in the instance of Ford, it was based upon one of its engineers “studying” four rollovers in which three of the occupants were ejected or tossed around in the car because they were unbelted and in the fourth example the finding was inconclusive about whether or not the fatal injury was due to roof crush. Nevertheless, Ford, General Motors and others have continued to stress this unsupported assertion.

Over the next two decades, car manufacturers in this country essentially ignored the need for rollover protection. Instead, they were institutionally directed to address (and in most instances oppose) the need for frontal protection, driven by the various passive safety proposals made by the NHTSA. Nevertheless, there were some engineers within the industry that did not ignore the signs of danger. For example, in 1976 a pick-up truck on the GM proving grounds rolled over when a tire failed. The seat belted passenger in that truck was fatally injured (he suffered quadriplegia and died of complications) when the roof structure collapsed in on him. The GM test driver walked away but in a report to the company he urged that roll cages be installed in all vehicles used on the proving grounds to protect against this risk of harm. It is now indisputable that both GM and Ford adopted in-house requirements that all high profile vehicles driven at high speed on their proving grounds be equipped with roll cages. While totally inconsistent with its litigation stance, this practice is, of course, completely consistent with Ford’s Automotive Director’s comments to the government in 1989, when he recommended that a “survival zone” be developed to address roof crush and rollover protection. A few years earlier, some of Ford’s engineers warned members of the corporation’s Board of Directors that steps should be taken to strengthen the light truck fleet to minimize the increased risk of harm presented by these vehicles in an environment guaranteeing a heightened risk of rollover. The report specified that Ford’s Light Truck Division should place a high priority on increasing roof strength, which must be obtained at all four corners of the vehicle and significantly surpass the strength requirements of FMVSS 216. Despite these proposed goals, a Committee of the Board of Directors was then asked to only approve a watered down version of this directive—which it did. Thus, through the 1980s, the 1990s and into the present decade, Ford light trucks are built with insufficient strength so that these vehicles cannot support the weight of the vehicle if the windshield is broken out. A photograph of one such vehicle, ready to be dropped from one foot is depicted below, together with the resulting roof crush damage.

As time has passed, the industry has become entrenched with the mantra that roof crush is not related to injury. In 1990, that mantra was fortified by the publication of the Malibu II study, generated by GM litigation experts. The conclusions of this study were that the risk of spinal cord injury in rollovers exists even when the car includes a sturdy non-deformable roof cage. Touted as the final answer on this topic, this study has been used over and over in courtrooms across the country and provided to the NHTSA as the “scientific answer” to this unfortunate public safety problem. The authors of Malibu II state that seat belts cannot provide protection in rollovers because there is very little distance to the roof and occupant excursion is inevitable. These authors likewise opined that neck injury always occurs when the head is arrested against the roof, the roof impacts the ground, and the torso continues to move vertically and compress the neck to failure.

The industry used this study with impunity for many years, because the underlying data was not revealed. However, within the past few years, engineers involved in litigation and several independent researchers have had the opportunity to study the underlying data and the result is the astonishing conclusion that Malibu II proves that roof crush causes excessive compressive (in the z axis of the neck) spinal loading of the test dummy’s neck. In fact, once Malibu II’s results are analyzed using a compressive neck force threshold, which is more closely comparative to human injury tolerance, it becomes clear that only when the test vehicles did not include a roll cage was the measured neck force sufficient to create a risk of catastrophic injury. The following summary of Malibu demonstrates this conclusion.

Despite these conclusions, the industry continues its unsupported assertion, both in courtrooms and in opposition to NHTSA’s current investigation of the efficacy of FMVSS 216. This year, Ford, General Motors and DaimlerChrysler have written to the government and stated that there is no causal relationship between roof crush and injury, and therefore there is no need to toughen FMVSS 216. What has not been disclosed is that these “official” comments have been written by the litigation testifying experts who travel around the country trying to save the industry from well-deserved verdicts. Recently, one such expert, Ken Orlowski, confessed in court that he authored Ford’s comments to the government. Faced with the self-serving reasons for misleading the government, there is a real question whether NHTSA should place any reliance upon this official response to the government’s investigation of the need to strengthen FMVSS 216. Today, vehicles comply with FMVSS 216 with significant variation. If one were to consider strength to weight as the appropriate test of a vehicle’s safety, most engineers believe that a 3-to-1 or 4-to-1 ratio would produce a safe vehicle (defined as one that will resist massive roof crush). Using this criteria, the following chart compares many of the vehicles on the road today.

As the NHTSA looks again at the importance of modifying and increasing the roof crush standard, lessons of the Harris’ tragedy should not be forgotten.

History Should Not Be Forgotten

On November 13, 1968, Ford’s Executive Engineer in its Safety Engineering Department sent an in-house letter to several top echelon engineers at Ford to address the “Rollover Impact Protection Requirements” issued by the federal government. Mr. Brilmyer, a Ford Engineer, provided the following criteria for roof strength:

“Improved Roof Strength” Excluding the rollovers terminated by impact with rigid and/or fixed objects, the roof of a vehicle should be strong enough to sustain twice the weight of the vehicle with no permanent structural deformation.”

Within General Motors similar analysis was being conducted. In 1971, GM provided the following affirmation of the importance of preventing significant roof crush in the event of a rollover.

“General Motors shares the Administration’s (U.S. National Highway Traffic Safety Administration) concern for reducing deaths and serious injuries in all accidents, including rollovers. To help reduce the possibility of head and neck injuries in the event of occupant contact with the roof in any type of accident, most 1971 General Motors passenger car models incorporate a new double steel roof with a contoured inner panel.”

General Motors went on to recommend the adoption of a roof crush performance criteria known as the “zone of non-encroachment.” This criteria would define the area within the occupant section that should not be intruded upon in testing, with the idea being that if you can preserve a zone in which the person sits and the roof does not violently intrude or allow ejection, then the risk of injury from roof crush is significantly minimized.

As early as 1971, Ford engineers expressed concern that the government static roof crush test presented an unrealistic structural loading, and that the preferable test of roof strength was a “sled roll” in which the vehicle is mounted on a dolly and driven sideways down a track and released at a staged point. By July 1987 (revised December, 1987), Ford’s Light Truck Safety Design Guideline Strategy included the following comments relative to rollover and roof strength:

• For all types of trucks, rollover accidents are more frequent than for passenger cars.
• Utility vehicles exhibit relatively higher rollover frequency than passenger cars and, given a rollover, the injury consequences can be more severe.
• A rollover accident is more likely to produce serious to fatal injury to an unbelted occupant, even if not ejected, because of the increased risk of multiple secondary impacts inside the vehicle.
• Although a belted occupant is still at risk, he is much less likely to experience severe injury.
• Injury rates in a rollover are at least double the rates of non-rollover accidents for both cars and light trucks.
• With increased seat belt usage through the 1980′s and 1990′s, there have been a growing number of belted occupants remaining in vehicles during rollovers.
• When a manufacturer anticipates rollovers occurring with belted occupants, the focus shifts to the design and performance of roof structure to minimize the risk of restrained occupant injury.

Recognizing the importance of roof strength to occupant safety, prior to 1990, Ford established an internal criteria requiring that: “…light trucks meet FMVSS 216 with less than 5 inches of crush applying a load which is 1.85 times the weight of the vehicle.” Unfortunately, because Ford did not judge the strength to weight ratio without a windshield and in a more lateral load than the 25 degree application of force in FMVSS 216, the end result has been cars and trucks that are woefully inadequate to prevent massive roof crush.

The Injury Causation Defense

In virtually every case involving rollover and roof crush, the defense argues that the injury—whether its head injury or spinal cord injury—is unrelated to roof crush. To support this contention, it is typical for the manufacturer to rely on the Malibu II series of tests and then conduct a few simple tests to strengthen its position. Typically, the defense conducts a “spit test” in which it takes an exemplar vehicle and puts it on a “301 spit,” puts a person in the vehicle and while he is wearing the seat belt, the vehicle is slowly turned over. The camera then captures the movement of the person toward the roof. Typically, during the spit test the person’s head will come in contact with either the roof rail (area above the side door), and the roof panel itself or go out the side window. Then, a second test may be conducted in which a dummy is put in the vehicle and belted. When the vehicle is inverted, it is typical for the defense to have the dummy’s head either on the roof or very near it. Then, the vehicle is dropped from at least 18 inches and even when the vehicle has been modified to include a so-called roll cage, the defendant’s test shows a very high compressive force to the dummy’s neck.

To counter these tests, the victims must either confront these tests with blazing cross-examination or conduct their own costly testing. It is relatively easy, although expensive, to re-do both of these tests and show that the human excursion is hardly ever as great as the defendant shows it. Likewise, if the dummy is positioned in a more typical inverted stance, there will be several inches of clearance in many vehicles. Further, if the added structure is designed properly, it is highly unusual to have high neck loads.

It is quite important, however, to stress that a rollover is nothing like a drop test. And, almost all major roof crush is the result of significant load being applied in a direction that is lateral to the roof rail. Thus, the force is being applied laterally and the person’s head is being impacted because the roof is buckling at a high rate of speed both vertically and laterally.20 The person’s head may be on the roof or the rail, but the direction of force is from the side and not in a direction vertical to the person’s seated position.

The Malibu Defense

In 1990, several GM engineers and consultants published a paper describing a series of rollover tests they conducted using Malibu passenger cars. Eight dolly rollovers were performed; four used production vehicles and four used Malibu cars with built-in roll cages. The dummies were belted and placed in the vehicle so that when the vehicle tipped over, the dummies would move toward the roof to the same degree that the authors believed a person would move. Instrumentation measured some of the forces imposed upon aspects of the vehicles and the test dummies. The authors identified a compressive neck load of 2000 N as the level at which there was a “possible injurious injury” (PII). Using this threshold, the authors found that virtually every roof impact on the driver’s side caused a neck reading in excess of 2000 N. It was, therefore, concluded that each and everyone of these impacts was potentially injurious, thus establishing that the strengthened roof system was irrelevant to neck injury.

Efforts to criticize the Malibu II publication need to be carefully crafted. A few of the important weaknesses of this study are described here. First, the neck of the Hybrid III dummy is known to be extremely stiff in compressive loading. It has never been shown to be biofidelic in that direction. Second, studies published by the auto industry and others have shown that no human will suffer any serious spinal cord injury with 2000N. Instead, there is a growing consensus in the scientific community that compressive neck loading forces on this very stiff test dummy must exceed 8000 N as a predictor of potential serious injury to a human.

The other issue is the defense assertion that injurious neck loading occurs before roof crush. That conclusion was refuted by automotive engineers employed by one Japanese manufacturer in a well-documented research paper presented in 1991 at an International Experimental Safety Vehicle Conference. The charts presented demonstrate the authors’ conclusions on that topic are diametrically opposite the Malibu conclusions.

The very intense debate over the importance of roof strength in either preventing or mitigating injury in rollover accidents seems to center on the causative relationship between roof crush and injury mechanics. This debate has served to create a “strawman” argument. That is, while some researchers have published and shown a direct correlation between roof deformation and the risk of head and/or neck injury, others have disputed this mechanical relationship. Both sides of this debate have conducted tests and studied the accident statistics in an effort to justify their respective positions. Much of this debate has spilled over into the litigation arena when injured motorists sue vehicle manufacturers alleging harm because of roof crush. If, however, we were to pull away from the rhetoric of lawsuits, the issue becomes less controversial. That is, what possible harm can result from strengthening the structure that supports the roof in an effort to minimize compartment collapse in the event of a rollover? Absent any added harm, if there is a chance that even one life can be saved or one catastrophic injury avoided, then why ignore this potential benefit?

Conclusion

The disproportionate number of fatalities and serious injuries in rollover accidents obviously requires more attention by the automotive industry and NHTSA. Absent some legitimate technical bases for not making vehicle structure less likely to crush in on the occupant space in a rollover, both manufacturers and the Agency should pursue and execute new minimum standards to improve vehicle safety. Manufacturers should continue to strive to design and test its vehicles to far surpass any such new standard, and to include criteria that incorporate a systems approach to rollover protection by integrating a seat belt/roof crush/performance-injury criteria. Only by pursuing and executing this type of design plan can we prevent more victims like the Harris family.

Mr. and Mrs. Munroe filed a Complaint against General Motors Corporation in which they charged that their car was not crashworthy; they asserted that the catastrophic injuries suffered on that October morning in a low speed collision occurred because of a combination of the inadequacies in the seat belt design and the failure to equip or offer to equip this car with a supplemental driver’s side air bag system. The Munroes’ did not allege that an air bag should have been the restraint system of choice; rather, Plaintiffs submit that GM should have provided a safe/non-defective seat belt system and a supplemental airbag system1 — not one or the other.

On July 17, 1996, the trial court issued an Order granting General Motors’ Motion for Partial Summary Judgment based on a finding that some of the Plaintiffs’ claims were impliedly preempted by the language of Federal Motor Vehicle Safety Standard 208. The Order specifically stated that the claim of defect due to “‘. . . the absence of alternative safety systems’ is preempted. . . .” This Order dismissed the plaintiffs’ claim that the car was defective absent a supplemental air bag system.

The Arizona Court of Appeals denied the plaintiffs’ Petition for Special Action, but the Arizona Supreme Court accepted this appeal for review. On May 27, 1997, a unanimous Arizona Supreme Court reversed the trial court’s decision and found that Mr. and Mrs. Munroe have a fundamental right to have a jury decide whether or not their automobile was defectively designed without a driver’s side air bag. Munroe v. General Motors Corporation, Supreme Court, No. CV-96-0522-PR (May 27, 1997).

Thus, the Arizona Supreme Court has joined with the Indiana, New Hampshire and Missouri appellate courts in refusing to find federal preemption of no-airbag crashworthiness lawsuits.

The defense of federal preemption of products liability cases is now the paramount legal argument that manufacturers assert in virtually every claim filed. This contention has been asserted in the context of such varied products as children’s’ wear/flammable fabrics, medical devices, cigarettes, nuclear reactors, anti-lock brakes, and motor vehicle crashworthiness.

In the context of motor vehicle design issues, the National Traffic Safety Act of 1966 (15 U.S.C. 1381, et seq.) is the controlling federal legislation. [Recodified as 49 U.S.C. §30100 (1994)] That legislation provides for the promulgation of national minimum vehicle safety standards. Munroe, supra. The Safety Act provides that no state or political subdivision can promulgate standards which are not identical to the federal standards. 15 U.S.C. 1392(d). And, the Act provides that “compliance with any . . . safety standard does not exempt any person from any liability under common law. Munroe, supra. The Arizona Supreme Court rejected the recent conclusions of a panel of the U.S. Ninth Circuit Court of Appeals in Harris v. Ford Motor Company, 110 F.3d 1410 (1997) and concluded that the “. . . adoption of minimum standards would not ordinarily indicate that common-law liability imposed as a failure to adopt higher standards is precluded, or even in conflict with congressional intent. . . . We think it quite clear that by including the savings clause Congress intended to forbid regulatory standards or requirements in conflict with federal law but did not intend to preclude claims of common-law liability based on a manufacturer’s failure to exceed the federal minimum standards.”

Having joined other state judiciaries in acknowledging the propriety of crashworthiness claims for failing to design vehicles with air bag systems, attorneys will be left to wonder under what circumstances this defect claim can be legitimately made. The following is a brief summary of the facts and engineering principles relevant to determining the propriety of a no-air bag claim.

It is now indisputable that an air bag system, together with a properly designed seat belt, provides superior frontal crash protection. It is also clear that an air bag system offers far superior frontal crash protection over the unrestrained passive protection built into most vehicles through steering wheel and dashboard construction.

Accident and Injury Analysis

The failure to include an air bag system in a vehicle may be injury producing under the following circumstances:

1. Frontal accidents in which the subject vehicle is struck in a direction that would involve some significant part of the front end structure.
2. The speed change to the subject vehicle in the collision is greater than 20 m.p.h. but less than 40 m.p.h.
3. The direction of the force of impact caused the injured occupant to move generally in a forward direction.
4. There was no significant intrusion into the passenger section of the car by the vehicle’s components or the striking vehicle or object.
5. The occupant’s injuries are catastrophic, and involved either head, spine or thoracic injuries.

Air bag system protection works well when the occupant is wearing a safely designed seat belt and he or she is directed by the force of impact in the direction in which the air bag would be expected to deploy. Air bag systems are designed to slow down and spread the forces of impact over large segments of the human anatomy, and therefore this restraint system is most effective in preventing impact induced injuries to specific body parts. The air bag will reduce the force of loads on the body as well as the acceleration that the body experiences when it strikes a relatively non-yielding surface.

No-air bag cases should not be pursued for injuries which are not catastrophic. No-air bag cases should not be generally pursued for injuries involving the lower limbs, nor in accident modes that would not cause the air bag to inflate or provide protection to the occupant. Thus, in a rear impact the air bag affords no protection and the same is true generally in rollover accidents. There may, however, be some reason to study the efficacy of air bags in near side impacts since that product has been technologically available for about five years and would certainly serve as a substantial buffer to near side forces of door intrusion.

The manufacturers’ collective choice not to install air bags in vehicles before 1989 was, to some extent, related to the federal government’s indecision about requiring this restraint in all vehicles. While the government was equivocal on this topic, car companies simply sat back and chose not to conduct research and market vehicles with this supplemental safety device. This conduct may explain the delay in air bag marketing but it does not, nor should it, serve as a defense to the omission of this safety device.

Conclusion

The decision of the Arizona Supreme Court in Munroe has simply confirmed the intent of Congress to allow our jury system to decide whether vehicle manufacturers, like other product suppliers, have done a safe job in designing their product. This decision by no means is a panacea for litigation. There has been no torrent of litigation in other jurisdictions recognizing the propriety of this type claim. Instead, what will inevitably happen is that some litigants — like Mr. and Mrs. Munroe — will have an opportunity for a jury to carefully evaluate the decision making process of the manufacturer, and then decide whether it has fulfilled its legal obligation to protect motorists in foreseeable accidents. Congress entrusted our jury system with this task and it now becomes the litigants responsibility to prove the propriety of a challenge to a manufacturer’s choice of restraint system (and its level of safety performance in foreseeable accidents).

The declared purposes of the amendments to the rules of discovery were to assure the fair resolution of cases without undue cost or delay.

The former rules of discovery established the parameters for both written and oral discovery. These parameters defined relevancy in legal terms and set forth the legal bases for objecting to discovery. The discovery rules were not self-executing. Instead, they required that a litigant intentionally trigger the application of these rules by submitting interrogatories, filing requests for documents, filing requests for admission, and the noticing of depositions. Likewise, the imposition of sanctions for failing to conduct or respond to discovery required action by a litigant.

Rule 26 in its former form provided that:

1. Litigants may obtain discovery which will ordinarily be limited only by application to the Court and based upon proof of unreasonableness inordinate expense, etc.
2. Litigants could request the depositions of expert witnesses upon a showing of good cause;
3. there was no specific order in which discovery by various means may be obtained;
4. discovery of expert consultants was limited to exceptional circumstances; and,
5. limitations to the use of a particular discovery method was unrestricted unless provided by Court Order.

In motor vehicle product liability litigation (MVPLL), the parties ordinarily make use of interrogatories, requests for documents, and depositions of fact witnesses, corporate deponents, expert depositions and request for admission. Under the former system, the parties controlled the pace and scope of the litigation, with most courts content to either adopt a laissez faire approach or to provide a rudimentary scheduling Order as a guide through the primary stages of discovery. Other techniques of judicial management have focused on discovery limitations based on such nebulous factors as time, quantity, and “relevancy”. Over time, it has become obvious in MVPLL that limitations upon discovery work to the advantage of the defendant manufacturers, who begin with immense financial and technical resources, which plaintiffs can only hope to “match” by the acquisition of sufficient internal data.

Discovery in MVPLL is extremely expensive and time consuming. This has a disproportionate impact on the plaintiff who is lacking in both financial and personnel resources. The major expenditures include depositions, expert witness expenses, travel expenses, acquisition of documents, and the development and preparation of trial exhibits. All of these expenses may be dwarfed by the inordinate time commitment to MVPLL. Because issues in these cases often involve an exhaustive understanding of multiple vehicle design decisions, manufacturing specifications and marketing strategies, discovery is always a protracted process. The plaintiff attempts to acquire and assimilate a large number of corporate documents, while the defendant presents repeated road blocks to full discovery, requiring frequent use of the motion practice. It has become all too obvious that the defense approach is to artificially limit a plaintiff to very specific defect allegations, asking the plaintiff and the court or ignore that vehicles are not built with one or two components in mind. “Stonewalling” by defendant manufacturers and the concealment or non-disclosure of information has become more than a sporadic event. In contrast with the overuse of discovery, the adverse impact of stonewalling goes directly to the merits of the case. It deprives the plaintiff and the trier of fact of vital evidence. While some courts have resoundly rejected manufacturers’ efforts to thwart discovery, many courts have little understanding of the effect of narrowing discovery requests of a plaintiff involved in MVPLL.

In the acquisition of discovery, plaintiffs need to acquire both the positive and negative sides of data generated by the defendant. It is not enough to just obtain the information that a manufacturer believes is pertinent to the existing product. The evolution of the product with engineering and policy decisions about design are quite pertinent to issues of negligence and defect. In MVPLL cases, interrogatories, document requests and depositions are used to acquire sufficient information to learn the “what, why, when and how” of vehicle design. Thus, a plaintiff seeks broad categories of data about corporate organization, management discussion, performance criteria, design objectives, test data, field accident/performance reports, engineering documentation, of alternative considerations, marketing research, etc. In the ordinary case, there is a constant battle to either restrict plaintiff’s requests for discovery or to gag plaintiffs from revealing the existence of the data to others.

The former policy of the discovery rules was to allow counsel to make use of an “involuntary” process to acquire relevant data. The rules did not impose an obligation to disclose information voluntarily. And, the responding party’s control over the flow of information limited the effectiveness of this “involuntary” discovery process.

Another limitation of our former discovery practice rest pertained to with the difficulty in obtaining efficient and purposeful enforcement of the discovery rules. Litigants often abuse the intended scope of objections to discovery, and most adversaries have neither the time nor work force to refute these objections. In many instances, litigants have gone to trial without having seen pertinent data because they were unaware of its existence, because an adversary deemed the information not responsive to requests for discovery, or because a litigant convinced a trial court that the data was not really material.

Discovery abuse has taken many forms, and is committed by litigants on both sides of the bar. Excessive discovery involving the submission of many hundred interrogatories, voluminous and non-directed document requests, and unnecessary or lengthy depositions constitute forms of harassment. Likewise, the selective production of relevant data based on an overly technical “interpretation” of a discovery inquiry has led litigants to file incomplete disclosure. Delay is also a favored tactic. Often counsel make endless promises for information, only to be told later that the data is either unavailable or incomplete — at a point in time when other discovery deadlines have gone into effect.

Of all the forms of discovery abuse, the plaintiffs’ bar believes that nondisclosure is by far the most damaging. It can be accomplished in a variety of ways. A defendant may semantically interpret a request to effectively narrow its import, or eliminate documents through a corporate “retention” system, or respond by simply ignoring data which has been transferred to a business entity not technically under its control. Defendants often complain that plaintiffs’ primarily abuse discovery by asking for non-relevant data, and by refusing to identify experts and specific theories of liability before undertaking extensive technical discovery of the defendant.

It is difficult to seek sanctions for non-disclosure without first providing the requesting party with a means to discover that responsive data exists. Thus, the use of various discovery tools to probe the corporate “mind” is essential to locating the fox in the woodpile. Although some courts may believe that MVPLL has become mired in pleadings and motion practice, in truth, the processing of these lawsuit has somewhat leveled off, allowing both sides to predict the process.

The several continuing pre-trial discovery issues which frustrate MVPLL are:

1. Who bears the cost of document production.
2. Disagreement about the scope of discovery.
3. Inordinate delays in responding to document requests.
4. Demand for protective/confidentiality orders which are not warranted.
5. Lengthy, unnecessary expert depositions.
6. Late identification of documents and witnesses.

Changes to the Arizona Rules of Civil Procedure

The motivating force behind the amended rules was the dissatisfaction expressed by segments of society pertaining to inordinate expense, and delay associated with civil litigation. The clear intent of these amendments was to “. . . make the judicial system in Arizona more efficient, more expeditious, less expensive, and more accessible. . . [and]. . . to avoid ‘litigation by ambush’” Rule 26.1, Court Comment 1991 Promulgation. The primary pre-trial discovery rule changes which effect litigation of MVPLL include:

Rule 26.1:

A voluntary disclosure rule, that requires all litigants provide to every other party:

1. the identity of witnesses having knowledge of significant information to the claim or defense;
2. copies or a list of the categories (without good cause, the document itself must be produced) of all documents and tangible things in the possession of a party that may be relevant, and which appear reasonably calculated to lead to the discovery of admissible evidence;
3. a computation of damages claimed, together with supportive documents;
4. the factual and legal basis of the claim and defense;
5. the witnesses to be called at trial with a designation of the subject matter; and,
6. disclosure of experts.

This information must be automatically provided — without request — by all parties within forty (40) days of service of an Answer to the Complaint, unless the parties reach an agreement otherwise. Rule 26.1 provides that no required disclosure will be allowed later than sixty (60) days before trial except by leave of Court.

The scope of discovery has been broadened and certain new procedures have been promulgated. The most important expansion relates to Rule 26.1(a)(9) which requires disclosure of documents which “. . . may be relevant . . . and those which appear reasonably calculated to lead to the discovery of admissible evidence. . .” The Advisory Committee Notes explain that this change was intended to accelerate the exchange of basic information, and eliminate the paper work involved in requesting such information. The primary driving force of this Rule was to avoid “litigation by ambush”.

Rule 30:

Of the amended Rules provides for a major limitation: depositions of lay or expert witnesses will be limited, without stipulation or court order, to four hours of actual examination of the deponent.

Rule 33:

Restricts the filing of written questions to 40 in number, including subparts (for non-uniformed questions). It further provides that additional questions will be allowed only upon leave of court or stipulation of the parties.

Rule 34:

Limits requests for documents, without leave of court, to 10 in number. While the Rule does not comment upon the questions of who pays for the cost of copying, the Supplemental Note indicates that the cost of copying documents shall be placed upon the requesting party, unless the producing party sends documents to the requestor instead of allowing an inspection.

Rule 43(g):

Has been amended to allow the trial court to limit opinion evidence at trial on “the same issue” to one witness per side.

Amendments to the Arizona Rules

The following review is not intended as a criticism of the rule changes, but rather to serve as a series of warnings to litigators and courts about what can and does occur when litigants lose sight of the many reasons for these changes. While one could easily view these rule changes as a method to minimize discovery and restrict the presentation of evidence at trial, it was clearly not the intent of the Committee to frustrate reasonable and necessary discovery. It is hoped that the following comments will demonstrate that MVPLL may require special treatment through the development of exceptions to the standard procedures established by these amendments.

Rule 26.1:

The voluntary disclosure provisions will probably have very little effect upon the plaintiff’s practice if, we assume that there will be no serious impediment to the supplementation of discovery responses. Aside from identifying persons having factual knowledge about the accident, and promptly furnishing information about the plaintiff’s injuries and damages, most plaintiffs will begin MVPLL without having to disclose more information. There is, of course, the logistical disadvantage of having to prepare a computation of damages early on in litigation, which may have to be substantially altered as client’s losses either resolve or become more clearly identified (in some instances, when counsel is retained shortly before suit is initiated, the acquisition of damage information may not be complete within the 30 day time period.) The basic document information which should be produced would include: police reports, ambulance reports, scene photographs, emergency room and hospital admission records, x-ray films, vehicle(s) photographs, client photographs, tax returns, and ancillary information about the product claims.

There is some concern about the potential conflict between the obligation to voluntarily produce documents “which may be relevant” and data gathered by counsel — constituting work product — to be used during the pre-trial phase of the case; one example may suffice. Plaintiffs’ counsel may obtain design and/or test information — from private or public sources — involving the same or even dissimilar vehicles which is helpful in counsel’s continuing study of a defendant manufacturer’s responsiveness to discovery or to a comparative analysis of a vehicle’s crash performance. While these data “may” bear upon the ultimate claim to be presented at trial, it also constitutes counsel’s work product. Interestingly, a similar quandary may face defense counsel (see discussion below). A plaintiffs’ attorney, who has participated in several MVPLL matters may have accumulated internal documents from vehicle manufacturers pertaining to subjects relevant to the instant lawsuit, such as design and test documents for other model vehicles demonstrating different levels of crash protection. How significant these data will be in the instant lawsuit may or may not be obvious early in the litigation, but surely these data constitute work product. Similarly, counsel often acquire voluminous engineering and scientific literature pertaining to crash protection and injury mitigation by vehicle design; again, these data may or may not bear significantly on any claim or defense, but it also constitutes work product. Further, counsel may not always be in a position to decide which of the technical documents he or she has acquired in anticipation of a claim will be relevant until plaintiffs acquire from the defendant design and test information related specifically to the vehicle model in question.

The defendant manufacturer faces the draconian task of identifying, within 40 days of receipt of the Complaint, all witnesses and documents which support the claim and defenses. It can be envisioned that these requirements will be ignored more often then not, because it seems almost impossible for a manufacturer to conduct a comprehensive factual and technical investigation of a vehicle claim within this short time period. In actuality, if a defendant did fulfill its literal obligation, in addition to disclosing all witnesses pertinent to the facts of the accident and damage claims, the defendant would be obliged to fully discern the technical claims, and identify all product design, manufacture, test and performance materials which may support the plaintiff’s claims and the defendant’s defenses.

As the party in control of the product documents, the manufacturer is specifically obligated under the Rule 26.1 to at least describe the documents which “appear reasonably calculated to lead to the discovery of admissible evidence”. Requiring an advocate to determine what data should be voluntarily disclosed is a novel provision. It is difficult to imagine that a manufacturer will voluntarily identify documents detailing alternative designs, test failures, or cost benefit studies — which may be quite useful to a plaintiff — in meeting its “voluntary” responsibility. Likewise, the defendant may also face a conflict between producing responsive discovery and what counsel may perceive is work product. For instance, while counsel for a defendant may, in the defense of a MVPLL have his or her client conduct a review of all public and non-public information about other similar incidents, should a defendant be compelled to produce this data as part of its “voluntary” responsibility” While it is clear that such data would bear significantly upon a claim or defense, what does this production do to the work product exception to discovery?

There is great concern that a defendant will abuse the privilege of furnishing only a list of documents because of manufacturers’ recent attempts to force the plaintiffs to travel to a “reading room”, and then find documents a plaintiff deems relevant. This tactic is the current method used by manufacturers and serves as formidable, and often frustrating, procedure for plaintiffs. The production of hundreds of thousand of pages of documents, placed in boxes with minimal labeling — and with duplicates or even triplicates in these many boxes — makes it almost impossible to ferret out the critical data.1

The amendments to Rule 26.1 have done nothing to address the perplexing demand that manufacturers routinely make for confidentiality orders before disclosing data, despite recent findings of many courts (and some state laws) that these data should not be treated as confidential.

Rule 30:

Imposes a limitation on the time duration of a deposition without treating fact and expert witnesses differently. If this amendment is applied literally to MVPLL it will radically alter the practice of law. Ordinarily, depositions of all witnesses to a crash are taken, together with the depositions of the police and rescue personnel, the plaintiffs, their treating doctors, various engineers assigned different design and test responsibilities for the vehicle line in question, corporate designees and expert witnesses. While a time limitation will eliminate the taking of lengthy depositions to harass experts, the real issue is whether substantive depositions of experts and a manufacturer’s engineers — it is quite unlikely that this time limitation will effect the taking of depositions of fact witnesses — can be adequately completed in four hours. While it is admirable to ask litigants to more carefully monitor their questioning of deponents, this may not be manageable in MVPLL. It must also be noted that this new rule is written to provide a total of “four (4) hours in length . . .” This brings up interesting (mundane) questions such as whether the four hours of time includes colloquy between counsel, time marking documents, and objections by opponents. Further, the rule does not address whether the four hour limit pertains to one party’s questioning, and probably will be read to restrict depositions to four hours of questioning by all litigants. Interpreted this way, there will certainly be a rush to notice important depositions so that the noticing party has the opportunity to use the four hours of allocated time.

It is also interesting to note that the rule envisions litigants petitioning for sanctions for “. . . unreasonable, groundless, abusive or obstructionist conduct” during depositions.

Rule 33:

Has been altered to restrict the serving of non-uniform interrogatories to forty in number. Such a restriction will, in all likelihood, effectively eliminate the filing of technical written questions until all other discovery means have been employed. While the past practice was to submit extensive factual interrogatories and contention interrogatories by both plaintiff and defendant, these will now be severely limited. In all probability, a litigant should “hold on” to its interrogatories and only use them after other forms of discovery have been completed. This then allows a litigant to use written questions as a “clean-up” technique. Both plaintiffs and defendants may choose to use interrogatories only to seek specific information about contentions and defenses after appropriate depositions and documents have been acquired. While litigators will undoubtedly learn to live with the restrictive rule, there is some doubt that it will promote justice or a speedy resolution. In MVPLL, interrogatories can be effectively used to identify pertinent engineers and other corporate employees who may not be deemed “significant’ by a defendant in its voluntary disclosure of witnesses. Likewise, interrogatories are used to get written a history about the vehicle model, its chain of commercial handling, the acquisition of information about other similar claims, the identification of corporate organizations involved in critical design, marketing and manufacturing activities, and other matters which many not be discoverable through other discovery methods.

Rule 34:

Has been changed to limit non-voluntary (Rule 26.1 production) requests for documents to ten in number. The commentary note suggests that the inquiring litigant will pay for the copying costs, unless the producing party sends the documents (instead of allowing the requestor to inspect all relevant data) — in which case the producing party pays for copying. Because this comment is not presented in connection with the duty to produce under Rule 26.1, it is likely that the party voluntarily producing data shall bear that expense.

Rule 43(g):

Has been amended to incorporate a rather odd evidentiary procedure for expert testimony. It permits a Court to prevent more than one expert per side from commenting on the same issue. This type of restriction in MVPLL can present significant evidentiary problems, and just as importantly, stifle the presentation or a claim of defense. It is quite routine for both sides to present experts whose opinions cover the same issues from different perspectives — such as accident reconstruction, bio-kinematics and injury mechanics. Allowing these different perspectives by experts who have different credentials often aids the jury in resolving serious disputes. Hopefully this change will be applied sparingly, with the view that a well informed jury is more important than “saving” a few days of trial.

Conclusion

The premise that changes in the rules were necessary to reduce costs and delays in litigation, may not be applicable to MVPLL. While the “voluntary” provisions of the changes can work to everyone’s advantage, and speed along the discovery exchange, there has been some concern that litigants have been forced to engage in an increasing number of motions to sort out the propriety of an opponent’s compliance with these provisions.

While there have been incidents of discovery abuse, as well as broad, lengthy expert trial testimony, the adversarial system in this field of civil litigation has generally provided the necessary checks and balances. The ordinary methods to object to discovery, and seek compliance with discovery by employing motion practice, and the taking of depositions has not been universally unreasonable. Certainly both plaintiffs and defendants have voiced complaints about such things as lengthy sets of interrogatories and document requests, as well as the verbose objections raised by manufacturers; however, the solution should not be to limit necessary discovery. Instead, a solution should be found in dedicating time to the definition of “relevancy”, and the elimination of confidentiality orders so that attorneys may more easily share data, thereby reducing the need to seek the same information over and over again from manufacturers. Likewise, the time restrictions on depositions seem unnecessary in this type of litigation, which is ordinarily focused and not unduly burdensome — with the exception of expert depositions. If the true interests of time and expense were to be served, then the taking of expert depositions should be eliminated entirely. These depositions are generally unnecessary and merely serve to annoy and allow the inquiring party to better prepare for cross examination at trial. Similarly, the trial opinion rule change seems unrealistic and needless in MVPLL.

Only time will tell whether these changes to our rules will significantly effect litigating motor vehicle product liability cases. Hopefully, practitioners and the court system will reasonably apply these rules so that justice and not expediency is obtained.

Many Questions Raised

While some consider products liability and antitrust litigation as generally more technically complex than malpractice actions, in truth, the “professional suit” raises just as many legal issues and presents a very personal element which is absent from other litigation.

The attorney considering a professional malpractice action has to realize the unique challenge he or she must confront. These actions generally result from a service undertaking which went bad. It is almost always a “bad result” or the failure of a professional who set out to “help” the plaintiff. The “injured” party is usually some one with less education, sophistication and experience.

It is this disparity in knowledge which creates a unique opportunity for our judicial system to offer litigants a haven to correct injustice, and to provide professionals an open forum to establish the propriety of their action.

Most Suits Not Tried

The jury system, one of the final bastions of democracy, remains an illusive remedy for most litigants. A very small percentage of all professional malpractice actions are tried. Most of these lawsuits are either withdrawn or settled for much less than their potential value. And the great majority of malpractice suits pursued to verdict result in victory for the defendant.

Whenever a potential client presents himself or herself with an eye toward a malpractice action, counsel must be extremely cautious of this undertaking. These suits cannot be successfully litigated without a long and tedious study–both factual, scientific and legal– and the outlay of substantial monies to acquire competent expert review. Even if counsel identifies legitimate action, recommending litigation must be seriously analyzed with a “risk benefit” formula.

Plaintiff’s counsel and the client must weigh the potential financial benefit against such intangibles as: the commitment of time, lawyer effort, expense, litigation frustration, judicial (jury) acceptance or rejection, and the probability of success or failure. Equally important is counsel’s view of the “correctness” of the action. Counsel must be sensitive to the very personal aspect of malpractice suit.

The stigma attached to a defendant in such litigation cannot and should not be ignored–just as jurors will factor this intangible issue into their deliberations, responsible plaintiffs’ attorneys must consider the potential “wrong” in initiating a professional malpractice suit. Counsel should often use as a gauge the question whether he or she would be offended if an action were brought against counsel or a personal friend for a similar error.

In making the decision to undertake a malpractice suit, counsel must make every effort to employ competent experts in the same field of expertise as the potential defendant. A meticulous review of all available facts and documents must be made with a view toward verification of the client’s accounting of pertinent events. And finally, a detailed analysis of the law applicable to the issues at hand must be factored into the “risk-benefit” formula.”

A Different Approach

Our judicial system has rejected efforts at establishing procedures for the handling of a professional malpractice suit.2 Instead, these actions enter the same foray as other litigation. Yet, the personalization of this litigation warrants a different approach.

As counsel to plaintiffs, one should act early to depose the professional defendants, and due consideration should be given to such matters as: videotaping, the client’s attendance, the expert’s attendance, and the use of documents and demonstrative evidence.

It is often true that the success or failure of the defendant’s deposition will dictate the lawsuit’s outcome. The art of confrontation presented during a videotaped deposition by the attendance of expert consultants and the client can cause even the most sophisticated defendant to be more candid with his or her responses to questions.

Developing a “confrontation strategy,” with established goals, allows plaintiffs’ counsel to meet the complexities of deposing the professional defendant. Directness and deference to the deponent’s interest in fully answering questions will allow for a well-structured examination. Counsel should pre-mark all exhibits, have copies on hand, and plan for the use of these exhibits with the videotape reporter. Often, the defendant’s deposition will relate to information he or she provided to your client or his or her family. Thus, the interplay of the plaintiff and defendant’s recollection, together with relevant documents, is an essential area of questioning. Counsel must certainly obtain the defendant’s opinions of all relevant issues raised by the complaint or in a defense.

On the other hand, defense counsel must cautiously guard the defendant against answering hypothetical questions which do not relate directly to either existing documents or facts of record.

Usually a professional malpractice action involves the production of business or treatment records reflective of contacts between the plaintiff and defendant. The originals of these documents should be reviewed because they may reveal that entries were made in different color ink, suggesting either contemporaneous recordings by different entrants, or a subsequent “retrospective” entry.

Expert Consultation

Every professional malpractice action requires expert consultation, the answering of expert requests for discovery, and the presentation of experts at trial. Whether counsel represents a claimant or defendant, the selection of experts is a most critical aspect of any malpractice action.

One should choose a witness who by both education and experience can honestly address the varying issues presented. Often, more than one expert is necessary to deal with questions of due care and proximate cause. When litigants answer expert discovery inquiries they are faced with the competing demands of providing sufficient information to place their opponents on notice of the facts and opinions held, and minimizing the use of these written materials in cross-examination at trial.

The “art” of answering such discovery must be carefully pursued. An unsuccessful effort to minimize the communication can result in the court placing limitations upon the expert at trial. An exchange of expert depositions does not obviate the non-disclosure dilemma, because counsel routinely use expert depositions to argue that testimony then given should serve as a “cap” to trial testimony. The belief that an exchange of expert depositions will eliminate the objection at trial to non-disclosure is misplaced. There is a tendency to place so much reliance upon the predictability of an expert’s trial testimony, based on a pretrial deposition, that it tends to serve as a barrier for expert elaboration.

Central Theme Not Needed

The trial of a professional malpractice action is the orchestration of diverse witnesses, including interested and disinterested fact and expert witnesses. As counsel prepares for trial, a central theme should be chosen so that jurors can hopefully relate to the “human” tragedy of plaintiff’s injury or the harm of a defendant being unjustly sued.

Counsel should select exhibits which facilitate the lay person grasping the complexities of the trial. Remember the Journalism class adage: provide a conclusion, explain the basis for the conclusion, and then remind the reader of your conclusion. Every trial exhibit must be prepared so that it is easily understood either singularly or in context with a witness’ testimony.

Every complex proposition must be redefined to a simple denominator. Often the use of multi-media formats, such as slides, photographs, illustrations and enlarged documents assists jurors and your witnesses in seeing and communicating more effectively. After all, the expectations of jurors accustomed to television and movie adaptations of attorneys and trials must be considered and, in some instances, satisfied.

The success or failure of a professional malpractice action is almost always dependent upon counsel’s faithful adherence to the facts, and the effective presentation of your expert’s analysis of the operative events.