Part 1 of this series provided a brief overview of one of an increasing volume of catastrophic bus and motorcoach accidents in which innocent vehicle manufacturers and suppliers are pulled into the lawsuits that inevitably follow. With settlement decisions controlled by third-party insurance carriers, these hapless victims commonly capitulate to outrageous settlements like so many sheep. This installment will outline the enormous number of ridiculous lies and mistakes cited as the accident’s causation that virtually everyone involved – other than myself and Larry Plachno (serving as expert witnesses to one co-defendant seating manufacturer ) and our attorneys – simply accepted as the true explanation for what caused the accident and whose fault it was.
Do Not Always Believe What You Read
This wise cliché is well-known, and taught to most of us as children – partly to survive the porridge of lies and misrepresentation in which we daily swim so that we do not drown in it. Long before the “Digital Age,” it was estimated that the average American was barraged with roughly 5,000 advertising messages a day. With Today’s pop-ups, tweets and other formats of fantasy, illusion, misrepresentation and outright scams, it would be challenging to create even a crude estimate of such a number. Few can survive these barrages, as even Abraham Lincoln was aware, advising us that, “You can fool all of the people some of the time, and some of the people all of the time, but you cannot fool all of the people all of the time.”
Interestingly, even the most heavily-read and possibly most important document of our times – the Bible – a tome stuffed with wisdom and values while devoid of advertising – is not taken literally by a large segment of our population. Yet when something like an accident report by the lofty National Transportation Safety Board (NTSB) emerges, virtually everyone exposed to it takes practically every word and conclusion at face value, and accepts its premises and veracity without question, much less without a gram of critical thinking.
Selective Evidence and Fairy Tales
In the next installment in this series, I will outline, in precise chronological order, each step that genuinely occurred in the sequence of events leading up to the accident-in-question. Deep into them, the tread of a retreaded tire mounted (illegally) on the front axle separated from the tire, and the tire casing exploded. So ignoring the litany of evidence presented later in this installment, the NTSB concluded that the cause of the accident was tire-related. Beginning with this event, the Board’s explanation for the accident was thus pretty straightforward:
- A retreaded tire was mounted on the curb-side of the front axle
- The tire was underinflated and heated up
- As the tired got hotter and hotter, the bonding applied to adhere the tread to the tire casing melted, and the tread peeled off
- The tire casing exploded
- Because the driver’s seatbelt was already broken before the trip began, he was thrown out of his seat (he testified that he jumped out of it), ending any braking or steering that could otherwise have stopped the coach and/or steered it away from a bridge’s guardrail
- The coach – traveling 68 mph at the time the tire exploded — struck the bridge’s seven-inch-high curb and overrode it
- The coach then struck the guardrail, slid 120 feet along it (remember: there was no driver in the seat to brake or steer it), and finally broke through the end of the guardrail
- The coach then dropped roughly eight feet onto an embankment next to a creek, tipped over onto its curb side, and slid forward 24 more feet before coming to rest
- 17 passengers were killed, and numerous others were seriously injured
While the NTSB Report conjectured that as many as four ejections had occurred, it acknowledged that there was no absolute proof of it. (In contrast, a local police investigator on the scene almost immediately after it had occurred testified that there could have been no ejections.) In examining all the evidence accurately, and thinking through their implications critically, it is apparent that the opportunity for a genuine ejection was almost non-existent.
In automatically assuming that the tire-in-question had been underinflated, the NTSB curiously ignored the fact that, when measured, they found that not only was the street-side front tire properly inflated, but that all four of the drive axle tires were also properly inflated. (In contrast, the two tag axle tires, whose stems were obviously more difficult to reach), were only about 75 percent inflated.) Because the left-front tire’s tread appeared to have peeled off (in truth, it was ripped off), shortly after which the tire casing exploded, there was, of course, no remote way to determine the inflation of this tire. But this did not stop the NTSB from saying it was underinflated with complete certainty.
As one can imagine, the small army of plaintiff’s attorneys were thrilled with this simpleton-like analysis. (The casualties translated into 268 plaintiffs, employing almost a dozen attorneys.) This is because it gave them a chance to file suit against both the tire manufacturer and another tire manufacturer’s subsidiary that had performed the retread – both of which handed over fistfuls of money in their respective settlements, although the original tire company remained in the case slightly longer than did its retreading counterpart.
Two is Too Many
That treating NTSB reports as the Gospel is a mistake is not difficult to illustrate. Comparing even two reports prepared in the same year for two catastrophic motorcoach accidents in the same State illustrate the childlike incompetence involved in preparing them. Figures 1 and 2 depict the drivers’ shifts from their logs the week before their respective catastrophic accidents. Figure 1 depicts the driver’s log (one week prior to the accident) for a driver involved in a catastrophic accident that occurred in Victoria, TX, while Figure 2 depicts the driver’s log one week prior to his involvement in the accident described in this article that occurred in Sherman, TX.
Looking at Figure 1, it is clear that all four of the driver’s shifts depicted on the log began and even ended at precisely the same times of day. Yet because the driver had a day off between the first three of his trips and the fourth (during which the incident occurred), the NTSB intelligentsia simply invented the notion that he did not remotely employ the same or a similar sleep/wakefulness cycle during his single day off, and thus, concluded that he was significantly fatigued on the fourth trip during which the accident occurred.
In contrast, Figure 2 shows that the driver’s shift for the trip on which the incident occurred began more than eight full hours later than the shift he drove the previous day. Looking at this very log, the NTSB concluded that this driver experienced no fatigue at all – even while this same report cited the fact that a post-incident drug/alcohol test found that the driver had used cocaine either just before the trip or during it.
Thinking through the log in Figure 2 a tad further, it is important to note that many motorcoach drivers – particularly those providing charter service for small companies with few drivers and fewer choices for which shifts to assign them to – do not even know what shifts they will be driving until the day they are assigned to them. On those days, they must either awaken early and call in to find out, or they are called that same day in advance of their shift assignment’s start-time, sometimes only an hour or two beforehand. Knowing this, and knowing that Figure 2’s driver had performed an early morning shift the day before his accident trip ending roughly at 3 PM, it would be natural to assume that this driver went to sleep relatively early that night. If he had, he would almost certainly have awakened relatively early the next day. Were this the case – and common sense suggests it would be – this means that when the accident occurred at roughly 12:45 AM during almost his ninth hour “on the job” of his second day’s trip, he had been awake for roughly 20 hours.
Based upon this preponderance of information, common sense and reasoning, this same Federal agency concluded, in this accident’s report, not only that fatigue was not an issue, but that nothing about the driver or his performance contributed in any way to the accident. One would think that this striking handful of facts would have tipped off a junior high school student that the driver-in-question either fell asleep at the wheel, or was operating in a state of fatigue that brought him close to doing so. Yet either this conclusion apparently swept over the heads of practically every attorney and “expert” witness involved in the lawsuit involving that accident, or these same individuals simply accepted it because the NTSB Report told them to.
The preponderance of obvious evidence that the driver in this accident fell asleep at the wheel did not come simply from noticing how long he had been awake, much less having metabolized a controlled substance that ironically would have kept him sharp as a tack had he snorted or smoked it shortly before the incident, or had he had any nourishment during at least the last nine hours of his trip other than a soda and some chewing gum. The sugar crash this diet contributed to his fatigue is a mere footnote to a cocaine user getting “sick” as his body metabolizes the substance and triggers his withdrawal from it. Yet even if such evidence was not blatant and obvious, the incident scene contained an abundance of additional evidence that demonstrated the folly of the NTSB Report’s conclusions.
The first of these involved the driver’s reaction time. Relying on data pulled from the infamous “black box,” the Board learned that the time between the tire’s explosion and the commencement of brake engagement was a mere 1.1 seconds. For those of us familiar with vehicles containing air brakes, we know that, once the brake pedal is depressed, it requires roughly half a second for the air in the system to compress enough to begin pressing the brake pads against each brake drum. Thus, deducting this increment from the equation, only six-tenths of a second remained for what normally takes a normal, alert driver 1.5 seconds to do:
(a) Recognize there is a problem (roughly .75 seconds), and
(b) Let your brain instruct your right foot to move from the accelerator to the brake pedal, and allow it the time to do so (roughly another .75 seconds).
Not a soccer enthusiast, I do not know if the World’s finest striker could accomplish this feat. If he or she could, I suspect he/she could not do it much more quickly. But I am certain that even the World’s best athlete in any sport could not do so after being awake for at least 20 hours, had no nourishment other than disguised sugar for more than nine hours, and having metabolized enough cocaine to accomplish what it was designed to in order to make it worth purchasing. Yet no shred of such reasoning appeared in the NTSB Report.
A second curiosity had to do with a debate about a dark tire mark found 685 feet south of the bridge whose guardrail was struck by the coach, roughly eight or nine seconds later (since, by then, the coach – remember, driverless) was estimated to have decelerated to only about 45 mph. Not only did some of the local police officers feel that that tire mark came from the coach involved in the accident, but even one of the NTSB investigators considered it so. Apart from other evidence that suggested what had happened so clearly, I would have been puzzled how the coach could have rolled for such a distance after braking so sharply at 68 mph, much less slowed only to 45 mph when it struck the bridge’s guardrail after traveling almost an additional 700 feet after braking sharply enough to lay down a strip of rubber on the pavement that was still visible the next day – after it had rained during the night and hundreds or perhaps thousands of additional vehicles had driven over this same spot since the accident had occurred.
Of course, the NTSB might have developed a dollop of insight about what these clues meant had they competently interviewed the driver and three of the surviving passengers. Among these individuals’ statements and testimony:
- The driver testified, in his deposition, that he felt a vibration in the steering wheel before he heard the explosion. In fact, he described the steering wheel not so much as vibrating but becoming so hot that it literally burned his hands, forcing him to let go of it.
- One passenger testified that, upon awakening, “the bus …started driving on top of the buckle … on the road. You know, on the road they have a little solid thing on the road.”
- Another passenger similarly jolted awake (virtually every survivor who testified claimed to have fallen asleep, to some degree or another, hours before the incident occurred) testified, “Then I felt like the bus was going like a train. It has like some kind of bumpy feeling, then I heard the noise, and then that was it” (p. 29). Several sentences later, she paraphrased this sensation as, “ I felt like the bus was going on top of something. And I heard the skidding noise, ….And then the noise” Finally, this witness commented that, “I heard the bus running on something and as the noise would go gong, gong, gong, gong, gong, gong, just like the train. When I was sitting down, that noise was still going on and then [I heard] the loud noise.”
- A third passenger jolted awake testified, “The only thing I just feel the bus is shaking, then I just heard – look like a boom.”
Clearly these passengers – and almost certainly the driver – were not torn from their dreams by a tire explosion. Clearly something else happened first – something that happened for a period of time long enough to describe it, in almost the same terms, much less in literary terms (including considerable onomatopoeia), and which caused the bus to vibrate so violently that the driver characterized it as so severe that he felt the vibration of the steering wheel so intense that he perceived it as actually burning his hands.
For the meaning of these clues, the reader will have to wait another month – if you have not already figured it out. It is merely unfortunate for a major motorcoach manufacturer, two international tire manufacturing giants and one of the World’s largest seating companies that the staffpersons anointed by the National Transportation Safety Board to examine this accident failed to do so. But to be truthful, in the Land of Tough Love, these four victims shelling out tens of millions of dollars deserved to – because among them, they appear to have not engaged a single attorney or expert (other than my client’s attorneys, and a fellow-expert and myself) who managed to, or if they did (like we did), they did not have enough faith in our or their analysis to defy their insurance carriers, refuse to settle, and instead, explain the accident’s actual causation properly and articulately in court.
The Detour Ahead
Life is full of bad ideas. To avoid them, here is some helpful advice. When choosing a spouse, do not consult a circus clown. After washing him or her, do not dry off your dog in a microwave oven. No matter how rich you are, you will not be able to hire Elvis to provide the entertainment at your child’s next birthday party, nor engage Jimmy Hoffa to beat up those attending who misbehave. And if your bus company, tire company or seating company has tens of millions of dollars at stake, do not rely on a comic book or an NTSB report for the conclusions that will likely determine how much of it, if any, you will fork over to settle a lawsuit.
Why a company’s owner and/or decision-maker would do this is puzzling since it is your product involved and your company’s profit margin — and possibly its future — at stake. It is particularly puzzling when you have the choice to (a) make key decisions yourself because you designed, engineered and manufactured the product, and should understand both your product and the industry whose dynamics you or your management should presumably understand, (b) take the initiative to find and engage the finest attorney(s) and expert witnesses in the solar system in their respective areas of expertise to help analyze the accident and help defend your product and your company, and (c) listen to their advice before making your decision.
All this is particularly puzzling to someone like myself who considers himself capable of providing accurate, meaningful and wise advise to the makers of such products and the owners of such companies. Also, as an expert in driver fatigue, it is further puzzling to me why the causation of almost all these accidents is not so obvious since they are usually strewn with so many clues. But these dynamics are the subject of a future installment in this series.
To those readers old or hip enough to even know who she is, Billy Holliday once crooned, “Smooth road, clear night, I can see the Detour Ahead.” When your livelihood, your company’s reputation, possibly its future existence, or even its insurance premiums are at stake, it is not a good idea to rely on the advice of an insurance company with the agenda of minimizing its pay-out in a single event, and which has no sincere interest in your company’s future or commercial agenda. Nor is it similarly wise to rely on conclusions drawn by bureaucrats whose salient personal agenda is to bash its fellow agencies, most importantly USDOT’s National Highway Traffic Safety Administration (NHTSA) and Federal Motor Vehicle Safety Administration (FMCSA).
Working against a hoard of attorneys and alleged experts, I often feel both frightened and angered by the vacuum of critical thinking that surrounds me. But of all the parties involved in a lawsuit, I should be the least concerned about this. I get paid by the hour for my services. And I get paid the same amount regardless of who wins or loses, or who pays whom whatever amount they agree upon. But were I to actually own a company and make its products, I would never consider letting a circus of fools, phonies and self-interested parties make such critical decisions for me.
A long-dead uncle of mine once told me, “Everything in life has a cost.” Few things I have ever been told were so true. This is particularly true in a courtroom – a venue which far too many pompous attorneys consider — and tell others — is a place you go to do business, not a place you go to seek justice. Occasionally, a jury that superficially comprises your peers may sometimes be less predictable, knowledgeable or thoughtful than you would like them to be. And because we are nothing but the sum of our life’s experiences, no judge can be completely objective about every aspect of every case, no matter how honest or wise he or she is, or how hard he or she tries. So there is always a risk that justice may not come about from a trial. But if you really want to optimize the chances of your receiving justice, you must take the responsibility to do what you can to obtain it. I will address the means of doing just this in yet another future installment in this series.