Helmet Product Liability Cases, and Fuck the AMA on Motorcycle Noise.

OFF THE WIRE
http://dysfunctionaltravelingcircus.freeforums.org/viewtopic.php?f=28&t=392

Arai Helmet company was one of the lead attackers who got this guy fired. I think I have his article somewhere; even though he leaned towards wearing helmets, he did do a pretty good research. As I recall he said manufacturers can buy Snell stickers for 60 cents; stated the expandable Styrofoam in helmets was the same as those cheap wake boards you buy in Hawaii. Explained why “DOT” helmets are not allowed in Europe (self certification) Helmet dealers, distributors and manufacturers can all be sued. Too many times I have heard people state you cannot sue due to the company disclaimer inside the helmet. Maybe we can put that info out, on how to sue. I work with the handful of insurance companies that will insure helmet distributors...and not many insurance companies want this risk...so you know the exposure to loss is real. The largest loss that I am aware of is on a bicycle helmet...I think it was 8 or 10 mil. The guy proved that when he came off of his bicycle; the slots in the helmet grabbed the pavement and kept his head from rotating...while the rest of him did a 360. Maybe some of our more learned BOLT members can put together something that can be widely posted ...about going after helmet distributors...

Mac
Hi , Mac,
And READERS

I've heard a lot of misinformation over the years on helmet cases - which are the same as any product liability case. The issue you raised was with regard to the warnings, and it is true enough that generally speaking an "adequate" warning defeats the cause of action in negligence or strict liability for failure to warn. But there are several potentially viable causes of action in every product liability case, including product defect/strict liability, manufacturing defect/design defect, express and implied warranty and negligence. Indeed, even in a failure to warn case where the manufacturer warned about the particular characteristic that may cause the range of forseeable injury, there are ways to revive the failure to warn cause of action, e.g., "over promotion." I had a case in which a foreign truck manufacturer advertised its truck all over the airwaves showing folks riding in the back of the truck. In California, since 1992, its been illegal to ride in the back of a truck. A high school kid excepted a ride home in the back of his friends truck and was rendered paraplegic. So we pressed the case and won the largest auto judgment Ventura County. That was a Japanese manufacturer. After that case I handled an appeal for some New Jersey lawyers who lost their case on summary judgment motion when the Judge held that it was "open and obvious" that riding in the back of the truck was dangerous. I got the Court to reverse the trial judge and send the case back for trial. They lost it, but they got to the jury.
The viability of the various causes of action will vary according facts. The specific case you mentioned, involving the guy who sustained serious injury, probably a cervical spine injury from having his helmet catch on the pavement while the guy's body swiveled around, probably involved a rigid ... fuck, I forgot the term ... rigid piece on the surface of the helmet, and the 218 standards specify that those rigid [ ...s] must not exceed 1/5 of an inch above the helmet's surface. But as Kevin Demick discovered most high end helmets violate the standard, usually around the location of the air vents, and this can be good evidence that the helmet is defective, failing to conform to industry standards. But I don't want to give the impression that the DOT standards define strict liability. They certainly do not. Indeed, I would have to think about whether failure to comply with DOT standards provides a basis for negligence per se, which would make for an easy liability case. It might in California, where state law requires that all helmets sold here conform to 218. Where you have a law that is intended to assure safety, violation of the law can result in summary judgment for the plaintiff or directed verdict, or judgement notwithstanding the verdict. (That is one good reason why BOLT members should not sell our helmets.) Additionally, it is not necessarily true that compliance with DOT standards insulates the manufacturer from liability, at least in theory. The manufacturer owes a duty to provide a safe or reasonably safe product considering its foreseeable uses, and that basic requirement is not satisfied merely by compliance with government regulations. By the juxtaposition of negligence per se and strict liability we thing of government standards as providing the "minimal requirements" for products. The FDA can approve a drug, but that doesn't mean that the drug manufacturer can't be sued if its product is defective. Indeed 99 percent of pharmaceutical product liability cases involve FDA approved drugs. And the same is true for NHTSA approved helmets. It is just a tougher case to make. The real difficulties in most product liability cases are in proving causation, where you can expect each side to put on a dozen accident reconstruction, helmet, and medical experts and then, at least where its not obvious, it comes down to a attorney advocacy before the jury. I had a case against the manufacturer of what was considered the best Polo helmet and also brought the first case against the United States Polo Association for the death of a world class polo player, in which the manufacturer folded on liability after I got Snell to testify for the plaintiff. The real fight was the causation fight in which both sides brought in the most highly regarded medical experts to argue both sides on whether the brain injuries were sustained due to direct impact or rotational injury. Both the Caliente manfuacturer and the USPA paid a 7 figure settlement.

The most common thing I've heard folks say since I've been on the BOLT forum is that you can't sue a foreign manufacturer. Our courts, including our state courts, have jurisdiction over any manufacturer that sells its products in our state or where it is foreseeable that the product will be used in the state; and besides, in product liability cases you can sue any one or everyone in the "chain of commerce" following the helmet from the manufacturer, to the various distributors to the retailer. If you buy a Chinese helmet at a Honda dealership you can sue the Honda dealership, for whatever their worth, along with any Chinese or Netherlands or American company that distributed the helmet. The reason most lawyers don't want to sue companies in other countries is that to do discovery, meaning taking depositions of the officers and engineers, etc. requires the lawyers to be familiar with the Hague convention, to which the United States is a signatory, and proceed with the discovery through diplomatic channels. But I've done Hague discovery and it is done all the time, indeed in pharmaceutical and other product cases it is done all the time. The work is just harder, fewer attorneys feel comfortable to do it. And it is more expensive, both in terms of the attorney time that is required and money required to adequately fund the cases, which may also temper an attorneys willingness to take on such cases - 'cause everyone, in every occupation, wants to have a reasonable chance of making a buck, right? I should say also that if you just sue the local distributor and retailer -- after making sure they have sufficient insurance and assets to pay your client's damages -- you could leave out the foreign manufacturer. The judgement you obtain in your product defect case is a "joint and several" judgment so that any defendant you prevail against has to pay the entire damages. Then say its the retailer, after paying the judgment, it can go back upstream including back to the manufacturer to get recompensed. That's their business. They chose to sell the Chinese manufacturers products or not. If they don't trust the foreign manufacturers to make good on their responsibilities then those retailers should not be doing business with them.
That's all that I can think of in terms of the helmet product liability issues raised on the Forum that I recall.

In this digest I also read the discussion of AMA and the Massachusetts noise ordinance case. Yeah, AMA is against EPA stamp noise laws, but that's only because forever they've been big on their own anti-biker anti-noise thing. Don't make the mistake of thanking the AMA. The AMA is rabidly anti-motorcycle noise and has been forever. I've cited their policies previously. I don't want to have to do it again. Scroll up. AMA may be alright on other subjects, such as motorcycle racing and I'll give it luke warm praise for not embracing helmet laws, although you never see them active in the legislatures opposing them to my knowledge. But make no mistake, the AMA is the enemy on the specific subject of motorcycle noise.

Peace and Love,
Ray