For the truly-devoted, serious NBT reader, finally the pay-off begins. After having to slog through thousands of words to learn about a flawed NTSB report, what the facts of a tragic catastrophic Texas motorcoach act truly were, and three installments about the technical merits and downsides of seatbelts, this installment will help to explain why the motorcoach industry cowered like sheep and capitulated to the installation of three-point seatbelts and the litany of problems, risks and costs that came with it.
No, this surrender was not a response to the conclusions of a NHTSA report, in 2007, that for the first time ever, recommended three-point seatbelts on anything other than a personal vehicle weighing less than 10,000 lbs. GVWR. In NHTSA’s 2004 report, it refused to endorse three-point seatbelts on schoolbuses – for which there was far more clamor (and roughly 15 times more vehicles). Further, despite the conclusions of the NHTSA motorcoach study, as of this writing (July, 2013), USDOT has still failed or refused to regulate the installation of such belts on motorcoaches. Instead, what really began the industry’s sheepish slide to the installation of seatbelts was the resolution of a 2005 lawsuit (Hinton) against a major U.S. motorcoach manufacturer stemming from a catastrophic accident in 2003 where the coach crossed over a median barrier and, after collisions with various and sundry objects, rolled over, ejecting several passengers and, overall, killing five of them.
Interestingly, the motorcoach manufacturer’s vehicle was not even involved in that incident! Instead, it was a 43-foot-long 1996 model of another manufacturer that the defendant had, at one time, been in business with. Just as with the motorcoach involved in the Sherman, TX accident that this series of installments is about, the earlier, 2005 Hinton accident involved operator and management error, the operating company’s paltry insurance did not cover the damages, and the plaintiffs’ clever attorney (or small squadron of them) made up the difference by filing suit against the bus manufacturer. (In the latest case of which this series is mostly about, a case named Vu), the seating manufacturer, as well as two international tire manufacturing mega-companies and even the State of Texas (for an allegedly defective guardrail) were also sued – largely because squeezing $80,000,000 out of the coach manufacturer in the earlier Hinton case was so effortless that this time, the same attorney (using the same expert), decided to sue every practically every party he could think of, including the State of Texas (for a defective guardrail).
Many, if not most, closing arguments by plaintiffs’ attorneys conclude with the plea, to the jury, that finding in favor of his client or clients will “send a message” to the defendants and their communities to never do something like this again, or if they do, they should expect to pay similar consequences. Knowing this argument is coming, in a lawsuit with sizeable damages, the defendant’s insurance carrier often hands over a sum that its bean counters suspect is less than the amount the jury would have accessed against its client. So in the Hinton case, because of the financial relationship between coach manufacturer sued and the fellow-coach manufacturer that owned it at the time (and whose coach was actually involved in the accident), the remaining U.S. manufacturer’s insurance carrier chose to toss gasoline on the fire and fork over $80,000,000 for the case to effectively “go away.” Of course, while this unwarranted donation indeed made this case indeed go away, it had two extremely damaging effects on the industry:
- It intimidated the industry into installing three-point seatbelts on virtually every U.S. motorcoach manufactured beginning in 2008 and 2009.
- It encouraged plaintiffs’ attorneys throughout the country to almost automatically file lawsuits against every bus or coach manufacturer and supplier (particularly seating manufacturers) whose products were present when the inevitable driver fell asleep at the wheel, began his or her body’s “crash” from the cocaine, caffeine or sugar high experienced several hours earlier, or from the distraction of cell-phone use or texting – the three scenarios that account for the vast majority of catastrophic motorcoach accidents.
Payouts and Logic
The argument for damages against these manufacturers and suppliers went pretty much like this:
- Sure, a driver and his/her poorly-managed company caused the accident.
- But if the vehicle had contained seatbelts, far fewer passengers would have been killed or injured as seriously as they were.
Interestingly, while the latter Vu case accident involved 17 fatalities (compared to the five in the Hinton case), this same plaintiff’s attorney accepted a mere $40,000,000 from the coach manufacturer in the Vu case. One suspects this was largely because he and his colleagues were able to bilk two major tire manufacturers for tens of millions, and finally squeezed out some small sum from the seating manufacturer I was helping to defend – three days before my deposition was scheduled to occur. What this attorney was able to leverage from the State of Texas (for a “defective guardrail”) is anyone’s guess.
Interestingly, in the Hinton case, it did not even dawn on the same plaintiff’s attorney involved in the Vu case to also file suit against that vehicle’s seating manufacturer. In fact, when asked about this during his deposition testimony in the Vu matter, the plaintiff’s seatbelt expert testified that he did not blame a seating manufacturer in the earlier, Hinton case he was simply never asked about it! While only the plaintiffs’ attorneys really know why many of these same attorneys filed against the seating manufacturer in the Vu case, the reason seems simple and obvious to me: As noted earlier, squeezing $80,000,000 from the bus manufacturer in Hinton was so easy that it only made sense to sue the vehicle’s “suppliers,” since their products seemed to be just as superficially responsible for the incident as was the vehicle itself.
In its favor, of course, the plaintiff in both cases at least engaged a legitimate expert witness. In more than 90 percent of the lawsuits in which I have been involved on behalf of a plaintiff, the defendants’ attorneys either engage no experts at all, or when they do, most of them are marginally-knowledgeable and opine like parrots, saying virtually anything their counsel asks them to, irrespective of its truth or scientific validity. In contrast, the plaintiff’s expert in this both the Hinton and Vu cases is a brilliant Ph. D. automotive engineer, one of the nation’s experts on seatbelts and occupant protection, speaks six or seven languages, and most interestingly – as the comment above noted – actually tells the truth, at least when he can. In fact, when asked in his deposition in the Vu case why he attacked the seating manufacturer only in this, more recent case, he openly admitted that he was asked, in this case, to opine only on the negligence of the seating manufacturer because all the other codefendants had already settled out of the case! To help focus him on this codefendant, of course, his counsel cleverly forwarded to him only a handful of carefully-selected case documents. Emphasizing this further, this expert testified that he was only engaged to comment on the errors and omissions of this single codefendant. In fact, he testified that he was not even given the NTSB Report of the accident to review!
Did this expert hypnotize the codefendants in the Hinton case? Were his comments so devastating that their insurance carriers had no chance at actually winning that case outright? Not a chance. Instead, this genuine expert’s almost childlike testimony in the Hinton case went largely unchallenged by a bevy of poor attorneys and, presumably, even weaker and less-knowledgeable “experts.” Below is a sample of some of these opinions, along with comments about the defendant’s attorney’s failure to challenge them.
Opinions and Passivity
It would take a lot for me to fork over $80,000,000. So the reader should be curious about why a motorcoach company – or more realistically, its insurance carrier — did so in the Hinton case. Among the comments of the plaintiff’s expert in the Hinton case were six central opinions:
- The motorcoach involved was unreasonably dangerous because it lacked provisions for effective occupant protection in a rollover scenario.
- The manufacturer [of the bus in the accident, not the manufacturer being sued] should have known, and knew, that rollover accidents and associated occurrences, as a result of the lack of occupant protection, are the major cause of injuries and fatalities.
- In a rollover accidents, it is well-established that the injuries are caused by having the passengers thrown around inside the bus, and there are also partial ejections or total ejections.
- There are two very effective protection devices that can mitigate the changes of getting thrown around inside the bus, and these two devices are restraints and the provision of advanced glazing.
- Technologies were in place and in effect at the time of this coach’s manufacturer  that were known and in effect in other countries, but definitely everybody in the motorcoach business in the U.S. knew about this technology.
- Not only were these technologies technically feasible, but were reasonable in terms of their weight and cost penalties.
Before citing a few of the astonishing opinions rendered in support of these points, these six opinions alone are worthy of comment. Consider:
- While rollovers indeed cause considerable ejection and rebounding, both of which often result in a large number of fatalities and serious injuries, rollovers themselves are rare: I have encountered a rollover in only one of the eight catastrophic accidents I have examined as an expert witness, and even in that one, only two passengers were ejected while the bus (obviously without seatbelts) rolled over 360 degrees several times – after crashing through guardrail, traveling 122 feet in the air and smashing into an embankment, whereupon in began to rollover down a steep hill. Yet the rarity of rollovers was never cited or explored by any of the codefendants’ attorneys or experts.
- Sure, ejections and other injuries were well-known to occur in rollovers. However, the opinion that seatbelts and glazing are the two most important elements of occupant protection was contradicted by this same expert in this same deposition, where he spent several pages lauding the benefits of “compartmentalization” – just as he did in a July, 2006 article in NBT (co-authored by me) on the subject of seating, where he actually opined that compartmentalization was superior, as an occupant protection approach, to seatbelts.
- The opinion that technologies were in place at the time of the Hinton coach’s manufacturer and that everyone knew about them is a half-truth: European motorcoaches only required lapbelts until 1999 – and anyone reading Parts 3 and 4 of this series should know how profoundly dangerous they are in large buses with close seat-spacing.
- Regarding weight and cost penalties, even without precise figures, just think about the costs, in gasoline, tire wear, brake wear and other maintenance, of adding three percent more weight to your coach and driving it around for 20 years.
The opinions of the plaintiff’s expert in the Hinton case became even more skewed as his testimony unfolded. Among other things, he testified that:
- While seeing only excerpts of it, he had not even reviewed the NTSB Report of the accident.
- “Anybody accepts that ejection is really the thing that must be minimized or eliminated.” Really?! One has to wonder where drivers falling asleep at the wheel rank in his hierarchy.
- “Ejections are the primary cause of injury.” I had particular trouble with this conclusion: Of the eight catastrophic accidents I had examined – including the Sherman, TX accident that led to the Vu case (and this series of articles), in which there were 17 fatalities and no ejections – I have only witnessed two ejections among scores of fatalities and serious injuries.
- “NHTSA recommended three-point seatbelts for motorcoaches in 1999.” In truth, NHTSA first recommended this technology for motorcoaches only in 2007.
- “If the coach manufacturer did not install three-point seatbelts, it should have at least installed a warning about their absence.” Think about what a scientifically valid warning about this might say: “Please wear your seatbelt so that, if your driver falls asleep at the wheel and the coach rolls over, these belts will keep you from being thrown through the window or flying about inside the passenger compartment, while they will expose you to countless other dangers and risks.” Clearly, neither evidence nor analysis would validate a warning like, “Please wear your seatbelt to ensure your safety.”
- Because the plaintiff’s expert witness in both cases is actually an honest one, when asked if he agreed that in some accidents, seat belts can actually cause injuries, he agreed that under some circumstances that could indeed happen. Yet the attorney questioning him never followed up by asking him what these circumstances might be! Too bad that attorney did not have the last three installments of this NBT series at his disposal.
- Regarding the downsides of seatbelts – including the “fulcrum effect” of lapbelts that made them lethal in serious frontal and oblique collisions – the plaintiff’s expert admitted that there are some “side effects,” but dismissed them as negligible. Familiar with many seatbelt studies, I find the fact that every anthropomorphic dummy (ATD) lap-belted in place in the 1984 Transport Canada study that crash-tested three schoolbuses received a lethal head injury to represent more than some “negligible” side-effects.
- “The absence of seatbelts on a 1996-manufactured motorcoach made it not only dangerously defective, but unreasonably defective.” The fact that not a single motorcoach manufactured in North America in 1996 contained seatbelts of any type was almost completely ignored by the defendant’s counsel. Thus, the fact that, in 1996, no one would have bought a motorcoach equipped with such features did not enter the framework of the case.
- “The “cost penalty” was only around $2500” – whereas my and fellow-colleagues’ inquiries about this to coach and seating manufacturers placed these costs at between $20,000 and $30,000 for new coaches, and an estimated $40,000 for retrofitting them.
- Appropriately, plaintiff’s expert opined at length about the importance of compartmentalization, yet did not volunteer that the 1996 motorcoach involved in the accident was defective for not having such a seating system – even though compartmentalized motorcoach seats were not only available at time (from Freedman Seating), but that this expert himself actually conducted the testing of these seats.
- Returning to what was defective about this coach, the plaintiff’s expert not only ignored the coach manufacturer’s failure to install compartmentalized seats, but initially, cited only the absence of seat belts and advanced glazing as its defects. Only after additional questioning did he agree that the lack of compartmentalized seating also made it defective. Interestingly, when first asked if the 1996 motorcoach without seatbelts was defective, this expert did not even answer “yes” – although he gravitated to this opinion later in his deposition after being badgered about it numerous times (and if his own attorney had been alert, he would have objected, and this revised testimony would not have been admissible).
Had it been my decision rather than that of the defendant and/or its insurance carrier, I would have taken this case to trial and refuted this testimony aggressively. Instead, the combination of the coach manufacturer and its insurance carrier handed over $80,000,000. But this capitulation to a collection of truths, half-truths and malarkey was not the major problem with this give-away. The major problem with it was the fact that it was like taking candy from a baby, and as a result, simply encouraged the same attorney to expand the absurdity and ignorance of his arguments even further in the next catastrophic case he became involved in (the Vu case, about which most of this series of installments is directed), a 2009 accident involving a refurbished 2001 motorcoach and 17 fatalities because a driver, with cocaine residue in his system, fell asleep at the wheel – and expanded his cornucopia of codefendants to bilk two major tire companies, a seating company and even our second-largest State. Lest the reader feel the basis for an $80,000,000 settlement in the Hinton case was outrageous, wait until you learn, from Part 7B (the next installment of this series) about the phantasmagorical arguments that helped this same plaintiff’s attorney squeeze all this money out of these other hapless codefendants in the Vu case.