It happens often: a potential client comes into your office. She has suffered serious injuries in an automobile crash. You suspect that the crash or her injuries were caused by a defect in the vehicle or one of its component parts such as a tire or a seat belt. You have heard something about a recall regarding the particular vehicle, or you want to find out whether the government has opened an investigation on the particular issue. Where do you go to find out? What information is available? Last month's article in this column provided an overview of the government's investigation and recall process. This month's article will provide an overview of what kind of information is available from the government and how a consumer lawyer can obtain the information for his or her client's case.
The government agencies and industry associations in the Washington, D.C. area contain a wealth of valuable information for the evaluation and prosecution of your case. With thorough research you may identify potential product defects, obtain evidence of industry knowledge of a defect, illustrate state of the art practices, and determine design or performance alternatives.
The most well known government resource is the U.S. Department of Transportation, National Highway Traffic Safety Administration (NHTSA) the governmental entity responsible for regulating the automotive industry. Its internet site is located at www.nhtsa.dot.gov. This web site allows any user to discover a portion of the publicly available research from NHTSA and should be accessed on every vehicle product liability case. However, it is very important to understand what kind of information is, and is not, available from this source as well as the advantages and shortcomings of the information it contains. It is important to know that this site does not include ALL of the information available from NHTSA and that the site was designed for use by consumers, NOT attorneys, paralegals, or expert witnesses.
The following is a summary of some of the information available from NHTSA, and the advantages and shortcomings of accessing information from this site for your vehicle product liability lawsuit. This site is updated daily by NHTSA employees. However, there is no guarantee on the accuracy of data or whether the data is all encompassing. Typographical and entry code errors have been located in the databases and affect the outcome of a search (one person may code ““brake problems”” as ““brake pads””, whereas another data entry person may code something only as ““brakes,”” which would cause different data to turn up in each search). Corrections, coding discrepancies, or additional model years located, may OR may not, be added to the database once a Defect Investigation (or any other source on this web site) is opened or closed.
An index of all vehicle, equipment and heavy truck Recalls is accessible by manufacturer, model, and year (only) on the NHTSA web site. This data is available back to 1966 when the USDOT/NHTSA was established (Public Law 89-563). The actual recall may or may not be accessed on the NHTSA site. A search of a particular vehicle or equipment for a recall will not cross reference other vehicles or pieces of equipment which may be involved in the same recall. For example, there was a large volume of information regarding NHTSA's investigation of the TK-52, a seat belt manufactured by Takata. These seat belts were installed in almost all Japanese vehicles in the early 1990s. However, a search of a particular vehicle a 1988 Mazda 323 for example would not reference the other vehicles that were also part of the investigation. Therefore, if you search only by manufacturer, model and year, you may miss important information.
As explained in last month's article there are currently two types of Defect Investigations from the Office of Defect Investigation (ODI) of NHTSA. They are called Preliminary Evaluations (PE) and Engineering Analysis (EA). There used to be a third type of Investigation called a ““Case””, however NHTSA no longer uses this category. These files date back to 1972. Excerpts of these files, or the entire file, may or may not, be on this site.
Most PE's are opened following a review by the Trend and Analysis Division (TAD) of data submitted to or collected by NHTSA. If TAD believes that the available information indicates that a safety related trend or catastrophic failure is developing, then the appropriate Division of NHTSA is notified to continue the investigation.
A PE may also be opened on the basis of other information. During the PE Phase, ODI obtains certain discovery information from the manufacturer which may be very helpful in your analysis of a case. A PE from the ODI also determines whether further analysis is warranted and a more in-depth investigation (called an Engineering Analysis or EA) should be opened. At this stage, the manufacturer has the opportunity to present its views on the alleged defect and more information (possibly helpful to your case) is disclosed. PE's are generally resolved within four months from when they are opened. They may be closed on the basis that further investigation is not warranted, or because the manufacturer has decided to conduct a Recall.
During an Engineering Analysis, the ODI conducts a more detailed and complete analysis of the character and scope of the alleged defect. The EA builds on information collected during the PE and supplements it with other data collected from the manufacturer, suppliers and other NHTSA employees/Divisions. ODI attempts to resolve all EA's within one year from the date they are opened, but some complex investigations require more time (some have been open for 1-10 years). At the conclusion of an EA, the Investigation may be closed without further action. A ““Closing Resume”” is usually found in all Investigation files (PE's and EA's and now obsolete Cases) stating the facts, conclusion and outcome.
If ODI believes that the data indicates that a safety related defect exists, the Associate Administrator (AA) for Safety Assurance is briefed. With the concurrence of the AA, the ODI investigator (usually an engineer) prepares a briefing to be presented to a panel of experts from throughout the agency for peer review. The manufacturer is notified (verbally) that a panel will be convened and of the results of the panel meeting. At this point the manufacturer is given the opportunity to present new data or analysis. If the agency panel concurs with the ODI view that a safety defect appears to exist, ODI may send a ““Recall Request Letter”” (RRL) to the manufacturer.
If the manufacturer declines to conduct a recall in response to the RRL, the AA may issue an ““Initial Decision”” that a safety related defect exists. This Decision is followed by a Public Meeting in which the manufacturer, public and various industry groups may attend. Verbal and written materials are submitted. The entire investigative record is then presented to the NHTSA Administrator who may issue a ““Final Decision”” that a safety defect exists and order the manufacturer to conduct a recall.
Generally, only portions of the above files are put on the internet site, and ONLY as they evolve, or when someone has the time to put them on the web site. Therefore, if you are investigating a potential case, or have ongoing litigation regarding a particular defect, it is important to continue to monitor these files over time.
These files can become quite voluminous but are essential to working up a product liability case. They often contain other lawsuits, plaintiff and attorneys' names, and contact information and opinions of expert witnesses. They may be in paper format, CD-ROM, microfiche or even microfilm (very old ones). If you need a document to be certified for authenticity for trial, it will be certified only in the format in which the original file is located (i.e. microfiche if it is somewhat old, etc.).
Pursuant to 49 U.S.C. Section 30162 and 49 CFR Part 552, ANY person may submit a ““Petition.”” A Petition, called a Defect Petition or ““DP””, is filed by a consumer, safety group, or government official outside of the NHTSA, and requests NHTSA to commence an investigation into an alleged safety defect. The Petition itself and the documents generated by NHTSA in response to the Petition may be extremely important for your case.
After conducting a technical analysis of such a Petition, the ODI informs the petitioner whether it has been granted or denied. If the Petition is granted, an Investigation (PE or EA) is opened and conducted by the appropriate Division. If a Petition is denied, the reasons for the denial should be, but are not always, published in the (daily) Federal Register (however you have to search a different web site for those). Notice of Petitions are also mentioned on the NHTSA internet site, however not ALL of the DP's are listed on this site. Nor is the outcome of each Petition listed on the NHTSA web site. In addition, some of the DP's are opened by ““subject”” (i.e. fuel leaks resulting in fires””) and not by manufacturer, model and year.
Crash tests at various speeds (up to 35 mph and under various conditions as detailed in the Code of Federal Regulations) are conducted by NHTSA. These tests are referred to as ““Compliance Tests”” by NHTSA and are conducted with a random sample of vehicles to see how well certain vehicles hold up in controlled test procedures. The crash tests do not necessarily represent ““real world crashes”” and fewer of the ““more expensive models”” or ““ lower production number vehicles”” are tested. Not every vehicle, or every year, or every model of every vehicle, is tested by NHTSA. Crash tests are usually conducted at independent contractor sites. Written reports and videotapes are available for purchase and may be ““blue ribbon certified”” to establish authentication for trial. You must have the knowledge of the vehicle ““platform model”” and ““sister vehicles”” in order to adequately and thoroughly search whether a vehicle (or similar enough) vehicle has been tested by NHTSA. For example, the Ford Tempo and Mercury Topaz are essentially the same ““sister vehicle,”” however you must search each model and year on the site because information on these two vehicles are not combined or cross referenced.
Three different Compliance Test indexes must be searched in order to identify and locate ALL vehicles tested, however the web site does not indicate that there are three sources for this information. The New Car Assessment Program (NCAP) tests (35 mph tests at various angles) have been indexed since the inception of the program (1979) and may be searched on the web site. Compliance Tests (up to 30 mph tests at various angles) are listed on the web site for vehicles manufactured from 1987 to the present. Various other tests (such as a vehicle into a pole at various angles and various speeds) may be available but are not necessarily listed on the web site. Insurance company testing is not listed on the site and can be a valuable, but expensive, resource as well.
Another source on the NHTSA web site (with parameters on its data as well) are Consumer Complaints (Other Similar Incidents) and Service Bulletins. As with the other searches on this site, you may only search by one manufacturer, model and year at a time and cannot search by issue or problem (i.e. all brake problems of Chevrolet vehicles). Therefore, this can be quite time consuming and once, again, the data entry errors are great and can be catastrophic if something is missed.
There are several consultants who specialize in obtaining information from NHTSA and from other sources regarding automobile defects. Some of these firms work exclusively for plaintiff firms. If the case justifies the expense, hiring a qualified consultant is without question the best way to make sure that you have obtained all of the information that you need to evaluate or prosecute the case.
Most of these consultants work for an hourly fee. Fortunately, some consultants compile sets of documents which relate to a particular defect or investigation and will sell these for a reasonable fee. These compendiums typically contain NHTSA's entire docket which relates to a particular defect with all of the related documents. Economically, when available, these compendiums are a without question a ““must”” in prosecuting a defect case.
In conclusion, a thorough search of the NHTSA web site is instrumental in conducting research into whether a particular crash or injury was caused by a vehicle or component part defect. Because the web site does not contain all of the potentially important information, you may also wish to hire a good consultant to assist you in compiling your information. This information is critical to assist you in evaluating a potential case, in preparing your experts, and for trying your case.
If you have questions or comments, please feel free to contact us.
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