Crashworthiness cases are among the riskiest and most challenging types of personal injury cases. They are time-intensive, enormously expensive (typically costing more than $250,000 in expert fees and other litigation costs), and difficult to win. The car companies have unlimited time and money to put up in their defense, and they ride in on a general wave of anti-plaintiff sentiment (encouraged by lobbying and public relations groups that they fund) and tricky legal doctrine. Like most product liability cases, the cases are not to be pursued lightly.
Last week, the Pennsylvania Superior Court released a new opinion in the case of Parr v. Ford, a case against Ford alleging that the 2001 Excursion was defectively designed. Here's the opinion, and here's the dissent. There are procedural problems with the opinion itself that make me wonder if the court might withdraw it (or the Supreme Court might reverse it solely on procedural issues), but let us look at the details of the opinion itself, because they tell us a lot about how automobile defect cases can go wrong.
The Parr family, all of whom wore seatbelts, were driving safely in their 2001 Excursion when a van ran through a stop sign and hit the Parrs’ SUV, causing it to spin around, hit a guardrail, and then roll down a 19 foot embankment. When the Excursion rolled over, the roof collapsed on the passenger’s side. The two children on the driver's side sustained minor injuries, while the two children on the passenger's side sustained extraordinary injuries: one had “a fractured skull, broken collarbone, fractured eye orbital, a lacerated liver, and facial lacerations,” and the other suffered a catastrophic spinal cord injury, rendering them a quadriplegic.
This a common rollover and "roof crush" case, the type of preventable harm that plaintiffs’ lawyers like me have been shouting about for decades, ever since the Ford Explorer was first sold in the 1990s. SUVs need extra measures taken to reduce the risk of rollover and to protect passengers in a rollover. You do not have to take my word for it, just read the first page on the Insurance Institute for Highway Safety’s website about rollovers:
Electronic stability control makes a vehicle less likely to roll over. ESC helps prevent the sideways skidding and loss of control that can lead to rollovers. It reduces the risk of fatal single-vehicle rollovers by more than 70 percent. As of the 2012 model year, all passenger vehicles must have the technology.
Strong roofs protect occupants in a rollover crash. Stronger roofs reduce the risk of a fatal or incapacitating injury when a vehicle rolls over, in part because stronger roofs reduce the chance of being ejected from a rolling vehicle. Even with standard ESC on all new vehicles, some rollovers will still occur, so it’s important to have a strong roof.
Indeed. As an IIHS study in 2005 noted, “The Ford Excursion is a very large SUV with a high rollover death rate. This is at least in part because its occupancy rate tends to be high, which raises its center of gravity even higher.” The Excursion has a curb weight of over 7,200 lbs. It needs roof support.
In my humble opinion, there is no question that the 2001 Ford Excursion (like a lot of a sport utility vehicles from that era) could have been, and should have been, built much better. Ford and its lawyers recognize that juries will understand the inherent problems with the vehicle, and so Ford tends to defend these cases by focusing all their efforts on the claim that, even if the roof had been reinforced, the passengers would have been injured just the same.
This theory, sometimes called "diving" or “torso augmentation," is pure rubbish. The claim is that, in a rollover accident, the occupants’ necks and spines are broken by their own body weight, rather than by the several ton vehicle that crumples around them, with the roof crushing them into their seat.
In theory, it’s possible for people to break their neck in a fall, like Christopher Reeve did - but a fall off a horse has nothing to do with the biomechanics of a rollover. There is no point at which an occupant in a rollover could fall at the speed and angle necessary to break their neck, and, if they are wearing a seatbelt, then there is no chance at all for them to fall like that. A spinal cord injury injury in a rollover has to result from the roof crushing in, pinning their head, neck, and torso into a certain positions and then applying a strong force to it.
The National Highway Traffic Safety Administration spent years looking at this exact issue. Despite intense lobbying by car manufacturers (who made the disingenuous claim that roof crush has nothing whatsoever to do with rollover injuries), NHTSA eventually concluded in 2009 “there are logical reasons to believe that a collapsing roof that strikes an occupant’s head at the nearly instantaneous impact velocity experienced when structures deform might cause serious injury,” and that rollover statistics showed a close relationship between the degree of roof deformation/intrusion and the severity of injury (or the likelihood of a fatality). NHTSA thus rejected the "diving" theory when it came to establishing federal standards for roof reinforcement.
Now, let’s talk about the Parr case. There's a lot in the case, too much for one blog post, but I want to talk about it in a more general sense first. Much is made of trial judges being the "gatekeeper" for what a jury may see. There are plenty of things a jury should not see, like settlement offers among the parties, but, by and large, it is the jury's role to determine the facts, and so they should see everything that's relevant to the case. Critically, they should see all the science and engineering. Most objections made about the admissibility of scientific evidence (under either Daubert or Frye) are usually just complaints about the weight that the jury should give it; those are thus issues for the jury, not the judge.
For all the complaints about "junk science" made by companies like Ford, and by organizations that Ford supports, there is no disputing that Ford was the one trying to bring "junk science" into the courtroom. As far as I can tell, the "diving" theory of neck injuries in rollovers is not believed by anyone who isn’t paid by the car companies.
The plaintiffs moved to keep that theory out of the case completely, but I must say that I see the trial court’s point on that: the theory, while dubious and largely not accepted in the engineering community, isn't wholly frivolous, and arguably qualified experts are making the argument. So I say let them make it, and the jury will see it for what it is.
Yet, the problem with the Parr case is that the door didn't swing both ways. Although Ford was allowed to present this dubious theory, the trial court precluded the plaintiffs from showing the jury the extensive documentation and studies from NHTSA refuting the "diving" theory. Ford got to have its cake and eat it too: it was allowed to present a bad theory in its defense while also being allowed to keep out much of the evidence refuting that theory. The jury should have been allowed to hear just how dubious this theory was, and in what low regard it was held in the automotive engineering community and by NHTSA.
Similarly, remember that IIHS study I referenced? That data, and data from National Center for Statistics and Analysis, Fatality Analysis Reporting System ("FARS"), and the National Automotive Sampling System ("NASS") concerning rollover fatalities involving Ford Excursions and other "comparable" vehicles show that the Ford Excursions had rollover driver and occupant death rates higher than comparable "large" and "extra-large" sport utility vehicles. The jury heard none of that.
I don’t know what will happen with the Parr opinion; it seems likely to be reversed for one reason or another. But it is a stark reminder of how difficult crashworthiness cases are, and of how difficult it is to take on a large corporation. It's also a reminder of the extraordinary challenges facing a plaintiff trying to get into the courtroom good scientific evidence, even in a venue like Philadelphia County - which Ford and its lobbying organizations have claimed for years is unfair to them.