Category: Consumer Products

Grill Brush Ingestion Case Results in Jury Verdict — And Safer Practices by Restaurant Chain

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Sharon Beaty’s lawsuit resulted in a jury verdict that not only awarded her damages, but caused one of the U.S.’s most well-known restaurant corporations to opt for safer cooking practices.

On March 26, 2018, Sharon Beaty of Florence, South Carolina pulled the leftovers from her Outback Steakhouse dinner out of the fridge for lunch. She was only one bite in to her Alice Springs Chicken, a boneless grilled chicken breast smothered in mushrooms, bacon and cheese, when she felt a sharp piercing pain in her throat. The culprit was a thin, one-inch wire from a grill brush, lodged in her esophagus, and extracted two days later by a at McLeod Regional Medical Center.

More than three years later, a state court jury awarded Beaty $315,000 for her harrowing experience. Beaty underwent an emergency endoscopic surgery, with medical bills totaling nearly $45,000. As a result of the litigation, Bloomin’ Brands, Inc., the parent company of the restaurant chain, committed to cleaning their grills with a safer, wire-bristle free grill brush. The jury declined to impose punitive damages in the bifurcated trial. Nonetheless, says attorney Liam Duffy, who represented Beaty, that corporate change was as important as the verdict.

“My client was pleased that the jury listened attentively and recognized this was a serious and scary event. To her, the verdict was important but equally important is that her case has brought about change that will ultimately protect others. She was part of changing the restaurant industry to make it a little safer,” says Duffy of the Yarborough Applegate law firm of Charleston, South Carolina.

Duffy says that the judge limited their search for other similar incidents to three years of records from Outback Steakhouse restaurants, which turned up about eight incidents of wire bristles contaminating food.  Had Beaty been able to pursue more years throughout the entire Bloomin’ Brands network of chain restaurants, there likely would have been more. Bloomin’ Brands boasts more than 1,450 casual dining restaurants worldwide – including Carrabba’s Italian Grill, Bonefish Grill, Fleming’s Prime Steakhouse & Wine Bar, and Aussie Grill by Outback.

Duffy says that Outback claimed ignorance of the problem, because injury claims were handled by a third-party administrator that did not communicate the repeated complaints back to corporate headquarters. Nonetheless, Outback had been sued before for grill brush wire injuries. In September 2017, actress/model Alexis Eichelsbacher of Pittsburgh sued Bloomin’ Brands, alleging that she ingested a wire from a grill brush after eating a take-out steak dinner from a local Outback location. According to the complaint, Eichelsbacher suffered two months of intermittent pain and bloating in her abdomen, and nausea, consulting with her gynecologist, and hospital emergency room personnel, before a laparotomy located the black wire bristle, which had perforated her bowel, necessitating a repair when it was removed.

The safety hazards posed by wire grill brushes that shed their bristles, embedding themselves in food, and eventually, different parts of the human body, gained high profile in 2012. U.S. Senator Charles E. Schumer and Consumer Reports joined together to call on the U.S. Consumer Product Safety Commission to determine whether grill brushes were safe and to warn consumers of the potential hazard, based on incidents that occurred in New Jersey and Washington State. (Read: The Ill of the Grill )

In 2016, the journal Otolaryngology-Head and Neck Surgery published a study based on the Consumer Product Safety Commission’s National Electronic Injury Surveillance System (NEISS) database, which samples emergency department visits for wire bristle injuries. It found that from 2002 to 2014, an estimated 1,700 individuals went to an emergency room after ingesting a wire bristle in grilled food. Not surprisingly, the summer months saw the vast majority of the visits. The researchers concluded that wire bristle ingestion wasn’t a common injury.

However, as the medical literature attests, it can have serious consequences. Documented serious cases of grill brush ingestion include those in which the bristle lodged itself in the abdominal wall, the bowel, a liver abscess, and a stomach fistula. In one 2014 case study, the victim died of peritonitis when the wire perforated the terminal ileum.

One case involved a Michigan woman who lodged a wire bristle in her throat after a single bite of a hotdog. Linda Pelham suffered six months of pain and bouts of difficulty swallowing and breathing. While physicians located the source — a wire grill brush bristle stuck in her throat – the bristle moved from one side to the other. At one point, it was lodged too close to the jugular and carotid arteries to operate. They were finally able to extract the wire when it moved into a safer position.

Cases like Beaty’s illustrate why an outcome that includes changing corporate conduct, such as ushering in new grill-cleaning equipment at a restaurant giant like Bloomin’ Brands, is so significant.

“If possible, we try to get effect a safety change into as many settlements as we can,” Duffy says. “Of course, clients want to be made whole, but what is often more important to them—and to us as trial lawyers—is what can we can do to prevent the same thing from happening to someone else in the future?”

 

 

vehicle fire

Everything Old is New Again: Polaris is Back to Issuing Fire Hazard Recalls

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Three months after Consumer Federation of America and the Safety Record Blog called out Polaris for sidestepping the recall process and the U.S. Consumer Product Safety Commission for allowing the troubled manufacturer to do so, Polaris recalls have come back into fashion.

In April, the Medina, Minnesota-based manufacturer and the CPSC jointly announced that 80,000 Model Year 2018-2020 Ranger XP 1000 & CREW XP 1000 off-road vehicles were being recalled because “the clutch belt can break and damage the secondary clutch and the fuel line, posing a fire hazard.” Another 7,000 Model Year 2019-2020 Ranger XP 1000 & CREW XP 1000 off-road vehicles were being recalled because “the fuel line can be misrouted above the bracket that protects the fuel line from a clutch belt failure, posing a fire hazard to consumers.”  

As our readers know, Polaris off-road utility vehicles have had persistent design-related fire problems that have resulted in more than a dozen recalls and a record $27 million civil penalty for late reporting on claims to the CPSC related to the fires. Serious injuries and deaths have and continue to occur.

These new recalls are similar, but not identical, to several repair campaigns that Polaris posted last year. In February, the Safety Record Blog noted that Polaris had been foregoing that clunky old recall process, with its fancy-pants CPSC-coordinated notifications, required procedures, and oversight.

Instead, Polaris was issuing Stop Ride/Stop Sale notices for the latter half of 2019.  Four of these not-recalls involved 79,805 MY 2018-2020 model year vehicles for defects that created fire hazards:

  • 2,900 2019 RZR XP Turbo Vehicles for a clutch inlet duct cover used as an “aid during manufacturing” that was not removed before shipping, creating a fire hazard
  • 70,000 2018-2020 Ranger XP 1000 Models and 2019 Pro XD Vehicles for potential to damage to the fuel line in the event a drive belt “breaks or fails during operation.”
  • 8 2019 Ranger XP 1000 Models that were assembled with fuel rail mounting fasteners that were improperly torqued.  
  • 6,600 2019-2020 Ranger XP 1000 Models built with incorrectly routed fuel lines that could cause a fuel leak if a drive belt breaks or fails during operation.

At the time, the Safety Record Blog asked CPSC spokesman Joe Martyak about the wisdom of allowing a manufacturer with a long history of producing combustible off-road vehicles to take a detour around the normal process and issue Stop Ride/Stop Sale notices instead of reporting the hazard to the Commission, filing a Corrective Action Plan and giving monthly progress reports to the CPSC. But Martyak said that there were many legitimate circumstances under which manufacturers can and do take such actions. Unless the CPSC does its own investigation or otherwise involves itself in the process, a manufacturer can recall a product and offer a repair without involving the agency at all, he said at the time.

There’s an overlap between the old Stop Ride/Stop Sales notices and the April recalls involving the 2018-2020 Ranger XP 1000 — same models and model years and same vague language about threats to the fuel line integrity. We guess the CPSC finally took an interest.

“It’s critical that consumers who own these vehicles find out about the recall and take the recommended actions. We know some of the remedies haven’t worked. Hopefully these will,” says Rachel Weintraub, Consumer Federation of America’s Legislative Director and General Counsel. “But, as some of the recalls involved a fire hazard, I’m really concerned that the CPSC is missing the forest for the trees. What the agency should be doing is looking at the hazards and the vehicles broadly and figuring out the commonalties and trying to solve them.”

Earlier this month, the CFA published an update to their February analysis of off-highway vehicle (OHV) recalls (including the Polaris Stop Sale/Stop Ride notices) over the past decade. (OHVs include all-terrain vehicles (ATVs), recreational off-highway vehicles (ROVs), and utility task vehicles (UTVs).) Polaris was – and continues to be a standout. It issued 43 recalls between January 1, 2010 and April 30, 2020. In 2020 thus far, there have been eight OHV recalls. Polaris has launched five of them – two for fire hazards, two for crash hazards and one involving seat belts.

 

Polaris Issues Stop Sale/Stop Rides, Where’s the CPSC?

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Between June and December, Polaris issued five Stop Sale/Stop Ride notices for some 92,000 off-road vehicles. These vehicles are the newest model years of vehicles that have been continually recalled since 2013. Not one announcement could be found on the CPSC website – in fact, the CPSC itself was nowhere to be found in this process of alerting consumers.

Four of these Stop Sale/Stop Ride notices involved fire-related defects. And given the manufacturer’s longstanding and persistent problems with thermal-related hazards and fires that have resulted in massive property damage, severe injuries and deaths – and in a 2018 settlement with the CPSC featuring the biggest fine in the agency’s history for failing to report fires – you might think that a joint, coordinated recall announcement between the manufacturer and the commission would be in order.

Polaris issued a fifth Stop Sale/Stop Ride on Oct. 23rd for 12,845 model year 2020 Ranger models for defective seat belts.

Informing the public of products hazards is kinda the Consumer Product Safety Commission’s jam. The 1972 Consumer Product Safety Act notes that the law’s very purpose is to “to protect the public against unreasonable risks of injury associated with consumer products” and “to assist consumers in evaluating the comparative safety of consumer products.” The Who We Are What We Do section of the CPSC’s website notes: “CPSC works to reduce the risk of injuries and deaths from consumer products by: informing and educating consumers through the media, state and local governments, private organizations, and by responding to consumer inquiries.”

But perhaps Polaris is now so practiced at launching recalls for fire-related hazards it doesn’t need any assists from the CPSC. And perhaps the CPSC, having spent so much quality time with Polaris officials, just trusts them to do the right thing.

The Consumer Federation of America, however, is pretty concerned.

“These are not recalls, these are unilateral actions by the company, and this is problematic. It’s important for the CPSC to be engaged in voluntary recalls as they are on many products under their jurisdiction. We have a lot of challenges in terms of consumer response to recalls and when recalls aren’t called by that name, it creates further impediments to consumers taking the necessary actions to protect them and their families,” says Rachel Weintraub, CFA’s legislative director and general counsel. “We hope it doesn’t become a trend.”

Weintraub is further troubled that these notices have been put out by this particular manufacturer and these particular defects.

“I do find it curious – the CPSC and Polaris have been working on recalls for these products for a long time,” she says. “It’s unclear why all of a sudden, certain actions are not being coordinated with the commission, especially since the CPSC put out a statement with Polaris in December 2017 about these hazards. It’s still an open question whether all of the issues raised in that have been effectively addressed.”

Your One Word Answer™: No

Yesterday, the CFA published its own analysis of off highway vehicle (OHV) recalls (including the Polaris Stop Sale/Stop Ride notices) over the past decade. Polaris was a standout. CFA identified 19 brands responsible for 110 OHV recalls, and Polaris had, by far, the most, with 40. Fire-related hazards topped the list of causes, accounting for 50 recalls – Polaris had nearly a third of that subset. In addition, the CPSC reports tallied at least 70 injuries and two deaths linked to recalled OHVs – one was the July 2015 death of 15-year-old Baylee Hoaldridge in Utah. (The injuries and deaths noted in the CPSC recalls do not reflect the total number. There have been at least four deaths and dozens of known injuries related to the Polaris fire-hazards alone.)

CFA's Analysis: An Analysis of OHV Recalls: Increasing Number of OHVs Pulled from Market due to Safety Concerns.

Four Fire-Related Stop Sale/Stop Ride Notices

Since the CPSC didn’t think it important to spread the word, we’ve conveniently assembled the latest four Polaris fire-related notices here:

June 7, 2019: Stop Ride for 2,900 2019 RZR XP Turbo Vehicles for a clutch inlet duct cover used as an “aid during manufacturing” that was not removed before shipping, creating a fire hazard. Polaris claimed five reported fires. This clutch inlet duct cover is likely preventing airflow needed for cooling – particularly in Polaris vehicles, which by design have very little air dissipating the excessive engine heat.

This indicates a lack of quality control at the Polaris plants. Some prior fire claims point to obstructed or damaged clutch outlet ducts as possible fire causes.

Polaris has previously recalled the 2016-2018 RZR XP Turbo vehicles for other fire-related problems.

 

Oct. 11, 2019: Stop Sale/Stop Ride Notice for 70,000 2018-2020 Ranger XP 1000 Models and 2019 Pro XD Vehicles for potential to damage to the fuel line in the event a drive belt “breaks or fails during operation.” The fix for the Ranger XP 1000 is an “updated clutch cover outlet duct mount to protect the fuel line,” while the 2019 Pro XD gets the same fix plus “an update in the fuel line routing.” Polaris claims four fires and no injuries.

Drive belt failures are a perennial problem for Polaris – in part because of heat degradation –which is why Polaris “reimagined” the design for the 2018 Ranger XP 1000, adding a new clutch cover designed to increase airflow and keep the drive belt cool for a longer-lasting life. Clearly that didn’t work.

As for the fuel line routing update, we’ve heard that one before – this was the subject in Recall 16-146, the single largest of 13 official Polaris fire-related recalls, covering some 133,000 model years 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. Guess the “fixes” they created for those model years didn’t fix things after all.

 

Oct. 22, 2019: Stop Sale/Stop Ride Notice for 8 2019 Ranger XP 1000 Models that were assembled with fuel rail mounting fasteners that were improperly torqued. Polaris says there are no reported incidents.

Really – only eight? A company as plagued with quality problems as Polaris should provide an explanation as to how they were able to precisely identify these models.

 

Dec. 20, 2019: Stop Sale/Stop Ride Notice for 6,600 2019-2020 Ranger XP 1000 Models built with incorrectly routed fuel line that could cause a fuel leak if a drive belt breaks or fails during operation. Polaris claims no reported incidents.

Once again – fuel line problems plus drive belt failures equal fires. Some of the same vehicles as the October 2019 Stop Sale/Stop Ride, same failed drive belts. Now the fix for the XP 1000 isn’t just a new clutch cover, it’s a re-routed fuel line, too. Did Polaris discover another problem?

The Ranger XP 1000 debuted in 2017, so the two Stop Sale/Stop Ride notices for the 2018-2020 model years mean many of the vehicles in its entire run have been recalled for fire risks.

 

How Recalls Are Supposed to Work

The law is pretty clear about what is required when a manufacturer determines that a substantial product hazard exists. Under Section 15 of the Consumer Product Safety Act, the company must “immediately inform” (as in, within 24 hours-immediate) the Commission upon obtaining information which “reasonably supports the conclusion” that a product does not comply with a mandated or voluntary safety standard or contains “a defect which could create a substantial product hazard, or creates an unreasonable risk of serious injury or death.”

According to 16 CFR Part 1115, Step One for the manufacturer is to determine whether the product has a defect in the product’s manufacturing, design, packaging or in the consumer warnings. A substantial product hazard would exist if the public is exposed to significant numbers of defective products or if the possible injury is serious or is likely to occur. Step Two is to figure out if the defect is “a substantial product hazard.” If a product is not already subject to some existing safety standard, the questions become: Is there a pattern? Are lots of these defective products out in the marketplace? Does the defect create a substantial risk of injury to the public?

Once the CPSC receives a Section 15 report, it springs into action and, using all of its engineering and human factors experts, makes its own determination if the defect should result in a recall. The agency basically weighs the same factors as the manufacturer – pattern, number of products and severity of risk.

If the CPSC concludes that a recall is warranted, the manufacturer is obligated to submit a correction action plan outlining the fixes and periodic reports noting its progress.

Hypothetical: Would a highly combustible product that had an exposure to the public of, say 70,000 units, plagued with drive belt failures that led to fuel line leaks that had already caused four fires be considered a defect that posed a substantial risk of injury to the public?

Hypothetical: Would such a circumstance trigger Section 15 reporting obligations?

CPSC spokesman Joe Martyak says that manufacturers can and do launch unilateral actions like stop sale/stop use notices. Not every product defect results in a remedy that involves a repair. For example, consumers might simply throw away a defective, low-value item like a little toy ball or a sand pail, the manufacturer may change its processes going forward, and that might be considered an acceptable response, without a literal product recall.

Unless the CPSC does its own investigation or otherwise involves itself in the process, a manufacturer can recall a product and offer a repair without filing a Corrective Action Plan or monthly progress reports with the agency. A recall is a negotiation between the CPSC and manufacturer, that includes an agreement on the remedy, which the agency will monitor, he says.

“Section 15 of our statute defines the circumstances when a manufacturer must report — it depends on the circumstances – and the CPSC holds them accountable to that provision,” Martyak says. “If the agency conducts an investigation and believes a recall is warranted, it will pursue a recall with the company involved.”  

Hypothetical: Is there a universe in which a regulatory agency founded to protect consumers from product hazards might consider these facts and decide that no recall was necessary?

Is that what happened with Polaris’s October 11, 2019 Stop Sale/Stop Ride?

Martyak would only say generally: “We don’t comment on our investigations.”   

 

Neither Recalls nor Stop Sale/Stop Rides Stop Fires

As disturbing as these under-the-radar recalls and the CPSC’s hands-off attitude are, the continuing Polaris fires are scarier.

In January 2019, Jason Henke was traveling on Highway 93 in Golden Valley, Arizona, in a 2015 Polaris RZR XP 1000, when it suddenly burst into flames. Henke had only a few seconds to escape the fire, and suffered burns to his hand, wrist, arm, and face. The RZR itself was completely destroyed by fire within a few minutes. This was Henke’s second 2015 RZR XP 1000 to burn to a crisp. In March 2015, his new RZR XP 1000 burst into flames. Henke, who also suffered burns in that incident, demanded a refund from Polaris. The company refused, but sent him a replacement. The incidents were traumatic for Henke, a combat veteran who suffers from post-traumatic stress disorder.

Henke’s 2015 Polaris RZR XP 1000 was actually recalled and remedied 8 times in four years for various fire-causing defects– including an ECU calibration, a voltage regulator replacement, and a fuse box seal replacement. In April 2016, it was recalled for an improperly routed fuel tank vent line that may have insufficient clearance to the exhaust head pipe, posing a fire hazard (the same problem plaguing the new Ranger XP 1000 vehicles). And in January 2018, it was recalled to replace “a heat shield that may not adequcately shield exhaust gasses in the event of an exhaust silencer crack, which could lead to melting of nearby components and pose a fire hazard.” Henke had all of these “fixes” completed.

In February 2019, Chad Reis and Thomas Lamb were riding in a 2019 RZR Turbo, near

Thousand Palms, California, when the vehicle caught fire. Both were able to exit the RZR, but not without sustaining severe burns. A few 2019 RZR Turbos were covered by the June 7 Stop Ride notice – was Reis’s RZR included? How can anyone know? Should it have been? Again, how can anyone know?

In May 2019, Steven Groves, 23, died of his burns after a 2017 Polaris RZR Turbo burst into flames, as he and the owner and driver, James Bingham, rode the Weiser Sand Dunes in Idaho. Bingham’s vehicle had been recalled and repaired in 2018.

Every fire hazard cited in a Polaris notice is a stand-in for the real problem: a high-powered engine, with the exhaust header directed forward and inches from occupants, crammed into engine compartment that can’t seem to get enough ventilation. We know, the public knows, and the CPSC surely knows that each one of these remedies is just a Band Aid. Yet, the commission apply lets Polaris apply another – and another – and now it permits the Medina, Minnesota, manufacturer to do so outside of the recall system.

Safety Research & Strategies founder and President Sean Kane said the Polaris situation harkens back to a Nissan Van problem he investigated in the early 1990s. The minivan was brought to the U.S., based on a Japanese market urban delivery vehicle. Fitted with a larger engine, and stuffed into an engine compartment that was inches from the occupants, the vehicle couldn’t get adequate cooling. 

“After Nissan did three recalls for engine compartment fires that only replaced discrete part failing from thermal degradation, the fires continued,” Kane said. The fourth recall was a bolder attempt to bring the engine compartment temperatures down that involved extensive parts replacement and reconfigured cooling system components. Fires continued because the complexity of the fix led to repair errors and it was a demonstration of challenges presented by post market repairs for problems rooted in the design and architecture of the vehicle.”

Is the Nissan Van a prescient tale of what’s to come for Polaris? Different regulatory agency (NHTSA), different rules, but maybe. Nissan, facing growing pressure from media, organized and angry mothers, Congress, NHTSA and class action attorneys, exercised the nuclear option codified in NHTSA’s recall requirements, if you can’t remedy or replace with a like vehicle, you buy ‘em back. Nissan’s buyback of the ill-fated Van was a remedy that stopped the fires.

So far, the only pressure on Polaris to do the right thing is coming from the media and litigation.

 

Polaris: Information Black-Out as Vehicles Burn

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In May 2018, the U.S. Consumer Product Safety Commission closed out its oversight of a 2016 Polaris safety campaign. Recall 16-146 was the single largest of 13 Polaris fire-related recalls, covering some 133,000 Model Year 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. These models also remain among the Medina, Minnesota, company’s most hazardous, responsible – at the time of the recall – for more than 160 reports of fires and 19 injuries, including second- and third-degree burns and the death of a 15-year-old girl.

Just six weeks earlier, the commission and Polaris had reached an agreement: Polaris would pay a $27.25 million fine for neglecting to report these fires and similar fires involving the 2015 Ranger, but make no admissions that the RZR ROVs were defective, nor that it failed to meet its statutory requirements to fully and promptly report the myriad incidents, nor that it knowingly violated any regulations which it didn’t admit to violating in the first place.

Despite a CPSC staff investigation, which found that the RZRs were fire and burn hazards, “which could create a substantial product hazard and create an unreasonable risk of serious injury or death,” and that Polaris waited until February 2016 to report the 150 fires, 11 burn injuries and one death that began in 2013, all Polaris had to cop to was recalling the vehicles “out of an abundance of caution.”

Such a deal.

The Polaris consent agreement was brokered under the stewardship of former CPSC Commission Chair Ann Marie Buerkle, who left the commission in October 2019 to great relief in many quarters, after the U.S. Senate failed to advance her nomination. Key Commerce Committee members had opposed her anti-regulatory, anti-consumer positions. Buerkle’s brief tenure was also marred by the commission’s handling of child death and injuries from Fisher Price Rock ‘n Play and Britax strollers, as well as disclosures of massive data breaches.

But there are troubling signs that Polaris ROV fires are still being brushed aside by the CPSC as the company quietly released four stop-sale/stop-ride notices and safety bulletins for additional fire-related issues affecting some 2018-2020 models of the RZR Turbo and the Ranger XP 1000. According to Polaris, there are four separate problems that are resulting in fires, including misrouted fuel lines (a concern that was also addressed in 2016 recall), drive belt failures causing fuel line damage, loose fuel rail mounting fasteners, and clutch inlet covers used in manufacturing that were not removed before sale. Polaris’ recent actions – which are not “recalls” – can be found only on the company’s Product Safety Announcements website page and included in their safety recalls search. Consumers expecting to find these announcements on the CPSC website apparently should know better than to go to the federal safety agency with regulatory and enforcement authority for Recreational Off-Road Vehicles for information about product hazards so significant that they shouldn’t be used or sold because of fire concerns. 

Freedom from Information Responses

Five years ago, Safety Research & Strategies began peppering the CPSC with Freedom of Information requests in an attempt to understand exactly how a product so fundamentally defective was failing so frequently and at great risk to consumers without a robust regulatory response. Between October 2015 to September 2019, we made 32 separate requests for recall files, death and injury documents, and materials from special CPSC investigations, called In-Depth Investigations (IDIs) – anything that would illuminate this narrative.

The responses began dribbling in on January 2017. The first set, responding to SRS requests for Polaris materials released in old FOIAs submitted by other requesters, yielded nothing. There were no documents responsive to the request; the original submitter didn’t want to pay the fees or withdrew the request, so no documents were released; the requested materials were being withheld because they were the subject of a law enforcement action or concerned intra-agency deliberations. One request unearthed several news stories about Keylee Latham, a Royse City, Texas, 11-year-old girl who suffered third and fourth-degree burns when a 2010 Polaris Ranger she was riding in overturned and exploded in flames. Every name in the news articles produced in the FOIA was redacted – even though the Latham incident received widespread coverage in the Texas media and was easily available in the public domain.

The second wave of communications from the CPSC merely noted that the request had entered the 15-day phase – required by the Section 6B of the Consumer Product Safety Act – in which the CPSC allows the manufacturer to review any information disclosed about it, ostensibly to prevent trade secrets or “misleading” and “inaccurate” information from being released. Manufacturers can hold up FOIA responses for months by objecting to document releases.

In March 2018, SRS began to receive the CPSC’s “substantive” responses, which were as insubstantial as possible. For example, take the request for the file associated with Recall 15-743. This campaign involved 4,300 Polaris Youth RZR recreational off-highway vehicles with leaking fuel pump retaining rings, which posed a fire risk. In response, the CPSC released 370 pages of recall press releases, emails involving meeting logistics and lots of blank pages. Every scrap of information involving Polaris’ response to the CPSC’s information requests, the corrective action plan or Polaris’ performance in executing it was redacted. Even the specific VIN range of the affected vehicles noted in the CPSC press release was redacted, even though it is part of the CPSC press release available online to this very day.

Other responses to requests for recall files were similarly obtuse. The CPSC released 741 pages of documents in response to an SRS request for the files emanating from Recall 16-755, a June 28, 2016, recall for 43,000 Polaris Ranger 570 ROVs which could overheat during heavy engine loading, slow-speed intermittent use and/or high outdoor temperatures. The vast majority of pages were redacted in their entirety.

In May, SRS filed separate appeals for three highly redacted responses with an opening that neatly captured the glacial pace of the responses and the blizzard of white pages:

In more than a decade of requesting and receiving CPSC recall files, never have we waited so long for so little. First, this response took 832 days, which is nearly seven times the agency average of 124 days to process a complex FOIA request, as documented by the Commission’s 2018 annual FOIA report. Second, documents the CPSC has routinely   released to us in the past, such as incident reports, epidemiological reports, recall effectiveness check summaries, the name of company representatives with whom the CPSC exchanged formal communications; complete emails regarding the wording of joint CPSC/manufacturer recall notices, and product safety assessment reports, are wholly absent or heavily redacted.

We challenged every redaction and kicked the slats out of the FOIA exemption claims the CPSC used as their basis. Take the July 2016 recall – the engine over-heating defect had been linked to 11 fires, but no injuries. Yet, the commission withheld 400 pages in their entirety under Exemption 6, which provides for the withholding of personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. If this defect had caused no injuries, what private medical records is the agency withholding? Were there injuries or deaths attributed to this defect that the agency has not disclosed?

A month later, the CPSC responded by partially granting our appeals and directing the CPSC to release a few more documents. In December 2019, SRS received the withered, rotten fruits of its appeals: the same production and largely the same redactions. We learned nothing new about Polaris’ corrective actions plans or any responses to the CPSC.

A Few Rays of Sunshine

The CPSC continues to send us blank caches of documents from other recall files. But the few unredacted pages have given us a better picture of how concerned commission staff has been about Polaris’ proposed fixes.

In September 2016, Polaris launched Recall 16-257, covering 13,000 MY 2016 RZR Turbo and Turbo XP vehicles, in which “the vehicles’ engine can overheat and turbo system’s drain tube can loosen, posing a fire hazard.” Polaris had previously recalled 2,300 of the vehicles for the leaking oil drain, but this time it mentioned that the excessively hot engine was the catalyst. Polaris reported 19 fires and six reports of injury. One of the incidents, which caught 15 acres of forest land on fire in Utah’s American Fork Canyon, caused severe burn injuries to a 6-year-old girl.

This recall related to a Polaris Safety Bulletin that listed two specific concerns: turbocharger oil drain line fasteners that may loosen, and the “engine control unit could allow the engine to continue to run in an extreme overheat condition which could result in damage to the cylinder head or cylinder head gasket and allow a release of engine oil or coolant.” Both conditions posed a fire hazard. The repair involved replacing turbo oil drain line and re-calibrating the ECU. This bulletin also instructed dealers to inspect heat shields, replace heat shield fasteners and update a fuel warning decal.

According to documents released to SRS, on July 27, 2016, Jeffrey Jaucshneg, of the CPSC Compliance Office, sent an email to Polaris’s General Counsel Stacey Bogart that asked whether the company did any real world testing on the proposed ECU recalibration to make sure it actually worked because of the wide array of variables, like how often the unit has been driven, the condition of the engine, and whether the vehicles have already overheated. He expressed his fears that Polaris was taking a throw-the-spaghetti-at-the-wall approach to its root cause analysis and without acknowledging the underlying problem of excessive heat in the engine compartment:

This is only my opinion, but you stated (Firm Engineers) at the meeting that this vehicles engine was trimmed out for performance (maxing the engines abilities) and my understanding that this engine runs hot anyway. Is this problem going to fester in after 50 rides instead of 20 … I do not believe you can come up with a conclusive fix without several weeks of testing…I am concerned that the ECU calibration is not going to solve the issue it will just prolong it from happening again…I have always given my all to your cases, my gut feeling on this to offer a refund to just get these units out of population, that way you have given the consumer an out. I really think even with the recalibration the vehicles will still have incidents in the future.

He also advised that Polaris post a stop-ride notice at trail heads of all public land to prevent another wildfire incident. Polaris’s response is redacted. Despite his concerns, the documents show that only a month later, Jauschneg had signed off on the proposed fix.

Polaris was also aware of the severity of the situation. An email on July 8, 2016, from someone at Polaris (name redacted), to the CPSC’s then-Assistant Commissioner of Enforcement and Import Operations, Carol Cave, conceded:

Please know we understand your frustration and are not proud about the thermal issues and recalls. We are working hard to fix these issues…we have made a number of personnel changes in our safety and engineering organizations and implemented improved processes in design, manufacturing and post-surveillance. We are not done and will work hard to continue to improve.

The response to our FOIA regarding CPSC recall 16-146 was also 384 pages of largely unbroken white-ness, but the available pages offered a few snippets.

For one, the CPSC required that Polaris submit the recall, finding that its propensity to combust constituted a safety defect with multiple root causes:

After careful consideration and in accordance with 16 C.F .R. § 1115 .12(a), the staff has  made a preliminary determination that the MY 2014-2016 RZR XP 1000  and MY 2016 RZR S 1000 (“Subject Products”) manufactured by Polaris Industries Inc. (“Firm”) present a substantial product hazard under section 15 (a) of CPSA, 15 U.S.C. § 2064 (a). Specifically, the voltage regulator used on all Subject Products fails and its thermal control fails to limit temperature; the vinyl fuel line may ignite if it comes in contact with exhaust or other engine components; the heat shield on the Silencer can ignite from Silencer heat; water can intrude into the fuse box causing an electrical short; fuel spilled in the cargo box can come in contact with the exhaust header; and the some of the vehicles can misfire on one cylinder heating the silencer catalyst.  These identified issues all can result in fires in the vehicles while in use, posing risks of severe burn injuries to consumers.

The CPSC required Polaris to replace the fuel vent line, voltage regulator, divider panel heat shield, and fuse box seal; verify proper fuel vent line routing; update the ECU calibration to prevent misfire; and add exhaust shielding in the cargo box. The corrective action plan also required, “Redesign or modification of future products.”

The documents also show that the fire risk problems with RZR 900 were on the CPSC’s radar before September 2015, when Polaris issued recall 16-702 for 54,000 model year 2015 RZR 900 and 1000 series vehicles. In February 2016, Polaris had approached the CPSC about expanding that recall. In March 2016, the CPSC asked its engineers to review the information gathered thus far. At the time, they knew of six incidents that included three deaths in three distinct incidents.

In the spring of 2016, CPSC conducted some technical reviews, including an evaluation of the flame resistance of the two types of Polaris fuel vent hoses. Their report noted that Polaris was previously using a flexible PVC tubing that is normally not recommended in temperatures above 160℉ and now proposed to use tubing that could withstand temperatures up to 257℉.  Notably, the CPSC concluded:

The current tubing will melt if exposed to high temperatures; this is the likely mode of failure in the incidents reported by Polaris Industries Inc. This tubing will soften with increasing temperature, resulting in decreased tensile strength, but these changes will be transient unless a certain threshold is reached. CPSC technical staff observed permanent deformation or melting at temperatures between 310°F and 320°F resulting from heat fluxes between 5kW/m² and 6kW/m².

The proposed replacement tubing does not melt, however thermal damage will result in stiffening and weakening of the tubing. When the reinforcement of the tubing has been sufficiently damaged, the proposed replacement tubing will tear when bent at a moderate radius. CPSC technical staff observed that tearing will occur after an exposure to temperatures between 460°F and 535°F resulting from heat fluxes between 10kW/m² and 12.5kW/m².

So, the CPSC found that the fuel vent tubing Polaris originally used softened, lost tensile strength and deformed each time the vehicle was used – and it melted when exposed to high temperatures. The agency also concluded that even the replacement fuel vent tubing Polaris planned on using eventually stiffened, weakened and would tear, but at higher temperatures (which the CPSC observed in its testing) than the originals.

The CPSC confirmed that several fire incidents reported by Polaris were connected to fuel vent tubing, but noted the difficulty in determining the cause and origin of fires when vehicles were completely burned. Nonetheless, a CPSC memo once again noted that regardless of which component catches fire, the heat from the exhaust manifold is generally the initiator:

ESMC staff believes there would be other reasons for the fires that led to the total loss vehicles that are unknown, given that there are many other potential sources of fire near the exhaust manifold (which appears to be the origin of the fires described by consumers).

In another review, CPSC staff candidly pointed to a multitude of fire origins, which suggests that the high temperature conditions in the engine bay noted by Jauschneg and the unnamed Polaris employee were understood as the real problem afflicting these vehicles.

From review of the incident data it is clear that multiple occurrences of fire in the vehicles have originated and propagated from more than one origin. These factsindicate a pattern of fire scenarios that are preventable through appropriate design measures.

CONCLUSIONS:

By review of the Polaris RZR 1000 vehicle incident data, CPSC staff has found patternsof fire propagation from multiple origins that pose a significant threat to the safety of vehicle occupants. Staff believes that the causes of fire in the vehicles are addressable and actions should be taken with due haste to prevent them. The firm is attempting to develop remedies tor the fire issues.

The CPSC engineers also evaluated Polaris’s several proposed changes, including a plan to add heat shields. The CPSC noted that the original heat shields were polyurethane foam sandwiched between two thin aluminum sheets, which could catch fire if the foam were exposed to heat. Polaris proposed to use shields with an air gap that could provide insulation. Polaris was also going to add yet another heat shield above the exhaust area to prevent gasoline spillage from contacting the hot engine exhaust areas.

The CPSC staff approved the countermeasures, but noted these were only stop gaps:

While ESMC staff believes not all of the fires can be prevented, Polaris has provided a multi-pronged approach that will likely reduce the risk of fires associated with the subject vehicles.

CPSC documents also pointed to one Polaris fix that needed fixing. After the recall was issued, the agency learned that the replacement voltage regulator Polaris chose as a remedy for the original voltage regulator hazard identified in the April 2016 recall was experiencing loose ground connections and subsequent voltage spikes. While much of the information is redacted, it appears that the voltage spikes caused fires in vehicles that had been repaired under the recall. In 2017, CPSC engineers reviewed Polaris’s proposed changes to the replacement voltage regulators, which included the use of diodes to suppress voltage surges and found them acceptable.

While the CPSC appears to have accepted Polaris’s assertion that the countermeasures it had begun to implement in the middle of the 2016 model year production made their vehicles less fire-prone, Polaris later recalled the 2017-2018 model years for another set of problems caused by excessive heat in the engine bay – and fires continue to afflict 2019-2020 models.

Reading Between the White Lines

So, what do the copious redactions plus a few key nuggets tell us? CPSC staff have been obviously and seriously alarmed by fires plaguing Polaris off-road vehicles. And they had questions about the efficacy of Polaris’ fixes given what both the company and CPSC seemed to recognize: the high temperatures in the engine bay were the underlying problem.  

A year after the CPSC closed the file on Recall 16-147, there was another Polaris fire-related death. Steven Groves, 23, died of his burns, after a 2017 Polaris RZR Turbo burst into flames, as he and the owner and driver, James Bingham, rode the Weiser Sand Dunes in Idaho. Bingham’s vehicle had been recalled and repaired in 2018. In September, a New York Times article cited fires had been reported for model year 2019 vehicles. An October Minneapolis Star Tribune news story tallied two other Polaris lawsuits emanating from fires that occurred in January and February of last year. And CPSC’s Saferproducts.gov included a report involving a 2018 Polaris RZR XP 4 Turbo, in which the consumer related the harrowing tale:

Within 5 minutes into the ride my wife, who was the front passenger, smelled fuel and then saw flames to her right. My wife shouted, “We are on Fire!” I looked back and saw flames around my two friends in the back seat. I slammed on the brakes and shouted for    everyone to get out. My wife and the rear passenger seated behind me were able to get out first. I was delayed with the 4-point harness I had on, but all other positions were 3- point (automotive style) belts. The right rear passenger shouted, “I can’t get my seat belt off.” As I moved towards her, I saw flames were all around her, she was able to release the belt and flee to safety. Within 10 seconds of her freeing herself, the rear seat erupted in flames. I then moved towards the rear of the RZR. It was clear the fire was coming from directly to the rear of the back seats. I looked under the RZR and could see active and intense fire coming from what appeared to be from the front, top area of the engine (closest to the rear seats). I made a futile attempt to extinguish the fire with sand/dirt. My actions had no effect on the fire and it quickly engulfed the entire RZR in flames.

I had a number of friends tell me to call POLARIS and have them drop a new RZR in my  garage. It appears this is how this company handles its dangerous products instead of FIXING THE PROBLEM. I don’t want a new RZR, I WANT this company to STOP making a death trap. I came within seconds of seeing my friends get seriously injured or burned to death. It’s clear the recalls and/or design of the machines have not fixed the issue with them catching fire.

So, burn it, replace it, quietly stop the sales – that’s how Polaris handles the problem. How about how the CPSC handles it? More than 30 FOIA requests later, we still don’t know. And the Commission doesn’t want us to find out.

One of the Commission’s biggest ace-in-the-hole played in denying SRS requests was the claim to a 7A FOIA exemption – which pertains to “withholding from disclosure records or information compiled for law enforcement purposes, to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” The CPSC claimed that our requests for information contained within Polaris recall files for ROVs linked to fires, injuries and deaths consisted of “active and preliminary internal staff notes, memoranda, correspondence, analyses and other records. It would not be in the public interest to disclose these materials because disclosure would prematurely reveal information used in the investigation, thereby interfering with this matter by disclosing the government's basis for pursuing this matter.”

But, Polaris and CPSC settled their differences in April 2018, and Polaris declared it had done nothing wrong – so, investigation done, right? Stop-ride / stop-sales notices with accompanying fixes for fire hazards, no recall needed, right?

Maybe time for some more FOIAs.

[For more reporting on CPSC, Polaris, and ROV fires see:  CPSC Takes on ROV Fire Hazards]

 

Who Does the CPSC Protect?

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This spring saw the reign of a popular infant sleeping device unravel. The Fisher Price Rock ‘N Play Sleeper was a type of infant hammock, consisting of a fabric and padding-covered plastic shell, suspended on a foldable metal frame. The Rock ‘N Play was the brainchild of Fisher Price industrial designer Linda Chapman, whose first-born had suffered colic years earlier. At the time, she testified, there was no good way to elevate an infant’s head, neck and torso, to relieve its gastric discomfort.

Fisher Price’s product development team started work on this idea in 2008 and began to sell it in October 2009, marketed as a safe way to put your baby to sleep, unattended, for prolonged periods, even though the company had no research to back that claim. Nearly a decade later, Fisher Price, which had sold 4.7 million units, recalled the product – but not because of efforts by the federal agency charged with protecting consumers from dangerous products – but by a reporter at Consumer Reports.

On April 8, the magazine published a story that tied the Rock ‘N Play to 32 infant deaths. Consumer Reports Special Projects editor Rachel Rabkin Peachman had investigated the safety record of the sleeper over three months, obtaining, through a commission error, unredacted incident reports.

(Last month, the CPSC notified numerous companies that their information had been disclosed in violation of Section 6B of the Consumer Product Safety Act, which gives manufacturers a lot of control over what negative information the CPSC can disclose about them. Since 2017, CPSC apparently released information to 29 recipients, affecting more than 11,000 firms. The CPSC requested that the recipients destroy or return the documents and refrain from publishing the information. Consumer Reports refused.)

Peachman found that there were more than three times as many deaths as the CPSC and Fisher Price disclosed in a vague April 5th warning to consumers. And with 32 fatalities associated with the Rock ‘N Play in the news, the dam broke. A coalition of consumer safety advocates and the American Academy of Pediatrics, which had repeatedly expressed concerns about the safety of inclined sleep products clamored for a recall. One week later, Fisher Price announced a limited recall. On April 11th, Consumer Reports called for the recall of Kids II’s inclined sleep product, Rocking Sleepers, after it found four infant deaths associated with that product. On April 26th, Kids II recalled 694,000 units.

“I cannot think of a single product that we worked on – not a class of products, but where an individual product led to that many deaths from the one company,” says Nancy Cowles, executive director of Kids in Danger, a member of the coalition. “Thirty-two deaths seem like an intolerable number. Clearly, action should have happened well before it got to that point. Who knew what about those deaths other than Fisher Price?”

The number of infant fatalities attributed to the Rock ‘N Play is likely to increase as some previously unaccounted deaths are reexamined for connections to the product.

What the public record does show, is an agency at odds with itself, safety advocates, pediatricians and regulators in other countries. Despite a long record of accord between the CPSC and the American Academy of Pediatrics, which has been for 27 years, issuing safe infant sleep recommendations for supine placement on a firm mattress in a crib devoid of soft sleeping materials, the agency began to shift its stance in the wake of demands from juvenile products manufacturers. It did so, even as the safety records for such products grew worse.

Only five months after the Rock ‘N Play hit the store shelves, the U.S. Consumer Product Safety Commission, under the mandates of the Consumer Product Safety Improvement Act, began to propose rulemaking for bassinets and cradles. The regulation, as first published in April 2010, would have eliminated bassinets and cradles with a rest angle of greater than 5º, based on a 1995 Australian study that videotaped the behavior of 11healthy infants sleeping in all commercial sleep products at the time. The study was conducted to assist the Adelaide State Coroner with an inquest into the death of two infants, and the Department of Public and Consumer Affairs to develop Australian Standards for rocking cradles. The study concluded that infants should never be left unattended in freely rocking cradles, and that Australian Standards should recommend that cradles cannot tilt to greater than 5 degrees. As part of the rulemaking, the CPSC outlined the need to establish a safe rest angle: “When a bassinet or cradle is not in a swinging or rocking mode, it needs to be level to facilitate a safe sleeping environment for infants. There was one death and several close calls associated with non-level bassinets/cradles.”

Fisher Price and Kids II, which manufactured inclined sleep products, and its trade representative, the Juvenile Products Manufacturing Association immediately protested. According to deposition testimony from Kitty Pilarz, Mattel’s senior director of  product safety, Fisher Price submitted comments composed by its outside counsel, Jones Day, asserting that the Rock ‘N Play filled an important, CPSC-recognized “niche market” for “products intended to calm colicky babies.” The JPMA had certified it as compliant with the ASTM standard (even though the standard did not address the Rock ‘N Play’s unique design), allowing Fisher Price to advertise it as "the only infant seat that meets industry safety standards for bassinets." There had been no injury incidents, so if the CPSC persisted in prohibiting the Rock ‘N Play, it might make matters worse, as “parents deprived of any appropriate product for calming their tired, colicky infants will look elsewhere and substitute products dangerous for that purpose.”

In the next nine years, the events involving the Rock ‘N Play would run on two tracks. On one, the CPSC and industry would come together to codify the safety of inclined sleep products via voluntary and mandatory standards. On the other, the AAP, the child safety advocacy community, and regulators in other countries would publicly reject inclined sleepers as safe for newborns, while the infant death toll involving the Rock ‘N Play and other inclined sleep products would rise.

Infant Deaths in Inclined Sleepers

In July 2010, Baby Matters, of Berwyn, Pa. recalled 30,000 Nap Nanny portable baby recliners, after  a 4-month-old girl from Royal Oak, Mich. died in one. The Nap Nanny was a wedge-style inclined sleep product with a harness, invented by a Philadelphia sportscaster Leslie Kemm Gudel, who had no product design experience or expertise in infant sleep. At the time, the CPSC and the firm had received 22 reports of infants, primarily younger than 5-months-old, hanging or falling out over the side of the product. Other Nap Nanny models continued to be sold, until three years later when the CPSC forced Baby Matters to recall all 165,000 units. The commission had received at least 92 incident reports, including five of infant deaths. Baby Matters closed up shop in November 2012. As of 2014, a total of six infants died in the product.

In September 2010, the CPSC posted a blog warning parents against using any type of sleep positioner: “CPSC and the U.S. Food and Drug Administration (FDA) are warning parents and caregivers to stop using sleep positioners. Over the past 13 years CPSC and FDA have received 12 reports of infants between the ages of 1 month and 4 months who have died when they suffocated in these positioners or when they became trapped between a sleep positioner and the side of a crib or bassinet. Both types of sleep positioners claim to help reduce the risk of Sudden Infant Death Syndrome (SIDS) by keeping babies on their backs, help with food digestion and reflux, ease colic, and prevent flat head syndrome.” The FDA and CPSC staffs have stated that there is currently no scientific evidence supporting these medical claims. The American Academy of Pediatrics (AAP) already tells parents to avoid “commercial devices marketed to reduce the risk of SIDS.”

In 2011, according to reporting by Consumer Reports, the first known death incidents in a Rock ‘N Play surfaced.

In 2012, The CPSC and the FDA  issued warnings to parents against using inclined sleep products, after the Centers for Disease Control published a weekly morbidity report on infant deaths that included inclined sleep products. “We urge parents and caregivers to take our warning seriously and stop using these sleep positioners,” Inez Tenenbaum, CPSC chairwoman said in a statement. “The sleep positioner devices come primarily in two forms. One is a flat mat with soft bolsters on each side. The other, known as a wedge-style positioner, looks very similar but has an incline, keeping a child in a very slight upright position.”

A June 2013 internal email from Fisher Price to the CPSC, which was produced in litigation, mentioned that the company was investigating a possible death in a Rock ‘N Play. In October of that year, the death of two-month-old Dayana Torres in Hildalgo County, Texas, was also linked to a Rock ‘N Play sleeper.

In November 2015, the CPSC published a report of injuries and deaths associated with nursery products, finding that in a three-year period covering 2010-2012, there were 17 deaths were associated with infant sleep products. They included seven deaths in an inclined sleeper, most in a foam-style sleeper which was being used inside a crib.

In May 2018, the CPSC issued a vague warning to parents urging them to always use restraints with inclined sleep products and to stop using them as soon as the baby can roll over. The alert acknowledged that the CPSC was aware of infant deaths associated with inclined sleep products: “Babies have died after rolling over in these sleep products.” No particular product, manufacturer, or death tally was named. Safety advocates today surmise that the alert was prompted by deaths in a Rock ‘N Play, but that Fisher Price hid behind Section 6 (b). Without the crucial identifying information, the warning was useless, because most parents would have no idea what an “inclined sleep product” was.

Nearly a year later, on April 5, the CPSC issued another warning – this time with Fisher Price acknowledging 10 deaths in a Rock ‘N Play sleeper since 2015. On April 8, Consumer Reports published its story revealing 32 deaths linked to the product. On April 11th, the magazine published n update linking four infant deaths to inclined sleep products manufactured by Kids II. 

Opposition to Rock ‘N Play

While the injuries, deaths, and close calls remained largely hidden, Fisher Price went looking for new markets for the Rock ‘N Play. It did not get the same concessions from regulatory agencies in other countries. In 2011, officials in Canada and Australia rejected the Rock ‘N Play as a sleep product. The company withdrew it from the Australian marketplace rather than change its marketing. In Canada, it was sold as a “soothing seat.” In the UK, where it is sold as a sleeper, the influential Royal College of Midwives refused to endorse the Rock ‘N Play for anything other than a playtime accessory of short duration: “It was agreed that: this would not be suitable for a new born infant as babies cannot be placed in a semi-prone position; This should not to be used for infants under six weeks; The lying surface is not suitable as an infant cot – and must not be used as infant cot to sleep next to mother's bed because babies must always sleep flat on their backs;  Unreservedly – this product must only be used for no more than two hours in a day and for the purpose of play/interaction with parents/siblings etc,” they wrote.

Pediatricians in the U.S. also raised the alarm. In 2012, Dr. Natasha Burgert, a Kansas City, Mo. Pediatrician published open letter to Fisher Price calling it “irresponsible to promote the Rock n’ Play™ Sleeper as an safe, overnight sleeping option for infants. By continuing to do so, you are putting babies at risk.  The Rock n’ Play™ Sleeper should not be used for extended, unobserved infant sleep for the following reasons. First, design features of this product are known to increase the risk of sudden infant death syndrome (SIDS). Second, I have personally seen infants with brachycephaly/plagiocephaly [flat head] and torticollis [twisted neck] as a direct result of using this product. Finally, infants are often left with poor sleep habits that continue long beyond the product’s use.”

Another blogging pediatrician, Dr. Roy Benaroch, published a similar opinion, and reached out to Fisher Price directly to express his concerns in great detail. He received a form reply: “Thank you for your inquiry and comments. We did receive your email on February 7. 2013.  We have provided these comments to the appropriate people within Fisher-Price. The Rock ‘n Play Sleeper complies with all applicable standards. We encourage consumers who have questions or concerns about providing a safe sleeping environment for their babies to discuss these issues with their doctors or pediatricians.”

The AAP, which had been issuing sleep recommendations to reduce the incident rate of SIDS since 1992, continued periodically to sharpen its advice to caregivers. In 2011, it issued specific safe sleep guidelines, which inclined sleep products could not meet, such as: “Infants should be placed for sleep in a supine position (wholly on the back) for every sleep by every caregiver until 1 year of life; Use a firm sleep surface—A firm crib mattress, covered by a fitted sheet; Sitting devices, such as car safety seats, strollers, swings, infant carriers, and infant slings, are not recommended for routine sleep in the hospital or at home; If an infant falls asleep in a sitting device, he or she should be removed from the product and moved to a crib or other appropriate flat surface as soon as is practical.”

The AAP also directly addressed the claims made by manufacturers in 2010, that their products were a godsend for babies with intestinal problems:

“The supine sleep position does not increase the risk of choking and aspiration in infants, even those with gastroesophageal reflux, because they have protective airway mechanisms. Infants with gastroesophageal reflux should be placed for sleep in the supine position for every sleep, with the rare exception of infants for whom the risk of death from complications of gastroesophageal reflux is greater than the risk of SIDS (ie, those with upper airway disorders, for whom airway protective mechanisms are impaired)”

Giving Inclined Sleep Products a Safety Stamp

Nonetheless, the CPSC and inclined sleeper manufacturers proceeded to develop safety standards. An ASTM sub-committee was formed, headed by Michael Steinwachs, a retired Fisher Price Product Integrity Engineer who worked on the development of the Rock ‘N Play.

In October 2012, the CPSC made official its regulatory approach to exclude inclined sleep products from the bassinet and cradles rulemaking that was underway. In a Supplemental Notice of Proposed Rulemaking the Commission wrote: [The] Commission believes that a separate standard targeted specifically to these products will more effectively address any hazards associated with them. Due to the significant progress in the development of a separate voluntary standard to address hammocks and inclined sleeping products, the Commission is not including them within the scope of this proposed rule.”

The ASTM released the first voluntary standard for inclined sleep products in May 2015 and a revision in 2017. And in April 2017, the CPSC published a Notice of Proposed Rulemaking specifically for inclined sleep products, in which it noted 14 fatalities between 2005 and 2016, with eight in rocker-like inclined sleep products. The CPSC pronounced itself satisfied that the current voluntary ASTM standard would address “the primary hazard patterns identified in the incident data.” All that was needed was “more stringent requirements” relating to the standard’s definition of accessory—which meant removing the term ‘‘rigid frame’’ from the definition, because, the CPSC said, not all inclined sleep products have a rigid frame. In fact, the CPSC was aware of a new inclined sleep product had entered the market without such a frame.

The child safety community was visibly dismayed. A coalition of groups, including Kids In Danger, Consumer Federation of America, Consumers Union, Consumer Reports, Public Citizen, and U.S. PIRG, submitted comments pointing out that there had been no studies showing that babies sleep better on an incline, nor any studies on the impact of continuous restraining sleeping infants on their development or safety. They urged the CPSC to promulgate a standard that ensure the same safe sleep as a full-sized crib.

The AAP  expressed “concerns about all inclined sleep products and the hazards they may pose to infants, and we are concerned that a safety standard could give parents and caregivers the mistaken impression that these products have been proven safe…The AAP continues to recommend that infants with gastroesophageal reflux should be placed for sleep in the supine position for every sleep, with the rare exception of infants for whom the risk of death from complications of gastroesophageal reflux is greater than the risk of SIDS (i.e., those with upper airway disorders, for whom airway protective mechanisms are impaired), including infants with anatomic abnormalities such as type 3 or 4 laryngeal clefts who have not undergone antireflux surgery. Elevating the head of the infant’s crib while the infant is supine is not recommended. It is ineffective in reducing gastroesophageal reflux; in addition, it might result in the infant sliding to the foot of the crib into a position that might compromise respiration.”

Controversy and Contradictions

Back in 2008, when Fisher Price was developing the Rock ‘N Play, there was no research to support the safety of inclined sleepers, because the products didn’t really exist. As documents produced in litigation show, Fisher Price couldn’t rely on data, so it called in a San Antonio family physician, named Gary Deegear, who aslo worked as an injury forensics consultant, to provide guidance.

“I'm not sure that we did specific research at this time about incline angles other than talk to Dr. Deegear,” Pilarz said in a deposition.

The decision to incline the rocker at 30 ° was an educated guess, somewhere between the 45° angle of infant car seat and a flat surface. In February 2009 email, Pilarz described the justification for this design decision:

“Dr. Deegear stated pediatricians recommend babies with reflux sleep at 30 degrees, this is just fine, or sleep in a car seat overnight for months or even a year The Back to Sleep campaign places children on their backs, and elevated positions of the head is fine. He is not aware of research on this. He will do a quick search. I explained that we are also researching this issue. I also have a call in to a local group of pedestrians to see if they are willing to offer an opinion.”

In that email exchange, Dr Deegear also sent Fisher Price the AAP’s safe sleep guidelines, which say nothing of the sort.

Similarly, the CPSC had no research to support a rulemaking decision to codify the safety of inclined sleep products in a way that would prevent infant deaths in these contrpations with any real confidence. What they did have on the one hand, was a major juvenile products manufacturer servicing a thriving market of parents desperate for sleep and on the other, the longstanding safe sleep recommendations of the AAP, which the commission has repeatedly endorsed.

“This idea they are giving the consumer something that will help them is not at all true,” Cowles says. “Fisher Price produced 5 million of these sleepers. There has been no reduction in sleep-related deaths. You would think that you would have seen some reduction, if these things were so effective. They convinced parents it would help their babies sleep, because we are all looking for a way to help babies sleep. And parents assume that if it’s for sale, someone made sure it was safe. That’s clearly not true with this product.”

Even former CPSC Chairman Inez Tenenbaum, on whose watch the CPSC took their peculiar stance, testified as an expert witness for Fisher Price in a personal injury lawsuit. Tenenbaum, now a lawyer in private practice with the Wyche Law Firm firm in South Carolina, testified in February 2018 that “the AAP has not come out against the incline[d] sleepers… The AAP has never said not to use an incline[d] sleeper.” You’d think the for the $1,000 an hour she charged Fisher Price for her expert opinion she might have read the AAP’s April 2017 comments to the docket in which they criticized the commission for giving parents the impression that theses products were safe when there was no evidence to support it.

But for the CPSC’s error and Consumer Reports persistent reporting, the public would never have known just how flimsy the foundation for these consequential decisions is.

Fisher Price’s walk-the-plank recall only reimburses parents who purchased a Rock ‘N Play in the last six months, pretty much ensuring that many units will remain uncaptured and many infants will be exposed to the risk of injury and death. That troubles Rachel Weintraub, the Consumer Federation of America’s executive director.

“This recall, while better than no recall has numerous problems. I am concerned, because from what we know about recall effectiveness, that this recall is not a recipe for success – much more needs to be done,” she said.

The Rock ‘N Play and other inclined sleepers have gotten so toxic, that earlier this month, the CPSC told Consumer Reports that it planned to “reevaluate” the entire product category. Steinwachs stepped down from the ASTM inclined sleep products standards sub-committee. Last week, its member rejected a call from safety advocates and the AAP to withdraw the product category, but intended to look into it further when it re-convenes in October.  

“We plan to keep pushing,” Weintraub says.

 

CPSC Takes on ROV Fire Hazards

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For more than a decade, the U.S. Consumer Product Safety Commission has been tracking the hazards associated with Recreational Off-Road Vehicles (ROV), with a focus on their poor handling, lateral stability, and dynamics. But the epidemic of Polaris ROV fires has shifted the commission’s attention to the dearth of industry standards to prevent ROV designs and malfunctions from sparking deadly fires.

In September, the CPSC’s Directorate of Engineering Sciences Caroleene Paul met with the Specialty Vehicles Institute of America to lay out the commission’s case for setting fire prevention standards in the wake of a $27.25 million civil penalty levied against Polaris Industries. The Medina, Minnesota, manufacturer paid the fine to settle two charges of untimely disclosure to the CPSC that “models of RZR and Ranger recreational off-road vehicles (ROVs) contained defects that could create a substantial product hazard or that the ROVs created an unreasonable risk of serious injury or death.”

Polaris agreed to that penalty – without any admissions of guilt – in April. One charge concerned 133,000 model year 2013-2016 RZR 900 and model year 2014-2016 RZR 1000 ROVs that caught fire while consumers were driving, posing fire and burn hazards to drivers and passengers. According to the commission, by the time Polaris reported the defect to the CPSC in April 2016, it had tallied 150 fires, including one death to a 15-year old passenger, 11 burn injuries, and a fire that consumed ten acres of land. The other charge concerned model years 2014-2015 Ranger XP 900 and Crew 900 vehicles that had heat shields that became loose and fell off. Polaris received 36 reports of fire and made two design changes before informing the CPSC.

Neither the recalls, nor the fine have stopped the Polaris fires. In fact, in December 2017, the agency and the manufacturer released a joint statement admitting as much:

… users of the vehicles that were repaired as part of the April 2016 recall continue to report fires, including total-loss fires. The 2017 RZRs were not included in the April 2016 recall, but these models have also experienced fires. The CPSC and Polaris continue to work together to ensure fire risks in these vehicles are addressed. However, at this time, the CPSC and Polaris want to make the public aware of the fires involving these vehicles.

One can only hope that voluntary standard-setting is a companion activity for the CPSC, because as that process proceeds at its molasses-in-January pace, Polaris ROV owners face considerable risks of harm in the interim. 

“So far, the response from the CPSC and Polaris has been underwhelming. Even after these recalls, Polaris ROVs are continuing to ignite and cause enormous human damage,” says attorney Jeffrey Eisenberg, of the Salt Lake City firm of Eisenberg, Gilchrist & Cutt, who has represented 10 families of Polaris fire victims. Among them is Colby Thompson. In July, Thompson was riding his 2017 Polaris RZR up an embankment in Bozeman, Montana, when the ROV burst into flames. The RZR had only been driven 20 miles; Thompson’s burns to his upper body were so severe, he was placed in a medically induced coma.

“Polaris has ignored this problem for far too long, and has done too little to remedy its RZR problems,” said Eisenberg. “There is no way that a RZR manufactured in 2017 with 20 miles of service should combust. My clients have paid the ultimate price for this corporate misconduct.”

The Hottest ROVs on the Market

Why can’t Polaris keep its powerful ROVs from burning up? A class-action lawsuit complaint, filed April 5 in U.S. District Court in Minnesota, alleges that Polaris fires are caused by a design defect plaguing multiple models spanning the 2011-2018 model years.

Polaris has been the undisputed king of the ROV market for at least a decade, netting $3.36 billion in sales in 2016. One of the biggest factors in its commercial success has been the production of high-powered ROVs featuring its in-house designed Pro-Star engine family, introduced in the 2011 RZR XP 900, and phased in to all of its ROVs by 2015. The civil action further argues that the real root cause of the fire risk is:

an unusually high-powered “ProStar” engine that is tucked directly behind the occupant compartment. The ProStar engine produces more power than the engines in competing vehicles and, accordingly, more heat. The ProStar’s exhaust gas piping routes forward toward the occupants, then turns 180 degrees, creating a U-shape, and exits from the rear. The piping lacks proper ventilation and heat shielding, and is positioned within inches of combustible plastic body panels. Thus, the hottest area of this high-performance engine is located inches behind the occupants, in an area of the vehicle that is enclosed with little room for air flow to dissipate the high heat. The extremely high temperatures, combined with inadequate cooling and heat shielding, result in the melting of the plastic body panels and the ignition of any combustible material surrounding the engine, including organic debris, leading to potentially deadly fires.

When tallying all of the Polaris products that combine a high-performance engine with poor placement and inadequate venting, the lawsuit, filed in April 2018, alleged that the true total of the damage since 2013, based on Polaris’ recalls, is more than 250 fires, more than 30 severe injuries, and at least three deaths. Those numbers are likely a significant undercount because, according to CPSC and Polaris, some models have burned but have not been recalled and fires continued to occur even in models that had recall repairs.

Setting ROV Standards

There are currently no mandatory safety standards governing the design and manufacture of off-road recreational vehicles. In October 2009, the CPSC published an Advance Notice of Proposed Rulemaking to address the “unreasonable risks of injury and death associated with Recreational Off-Highway Vehicles,” related to their rollover propensity.

(The CPSC distinguishes ROVs from ATVs as “motorized vehicles having four or more low pressure tires designed for off-road use and intended by the manufacturer primarily for recreational use by one or more persons.” ROVs are commonly called Side-by-Sides for their seating arrangement. Unlike an ATV, which is straddled by the rider with handlebar steering,  ROVs resemble small, rugged, Jeep-like vehicle, accommodating one to six occupants.)

The commission moved to rulemaking after determining that voluntary standard efforts did not do enough to rein in deaths and injuries caused by the vehicles’ poor lateral stability and vehicle handling, and the lack of occupant protection features, such as seatbelts. This touched off a seven-year, concerted effort between the CPSC and industry to beef up ROVs’ performance requirements. In November 2016, after the Recreational Off-Road Vehicle Association (ROHVA) and the Outdoor Power Equipment Institute (OPEI) finalized amending their ANSI voluntary standards to the CPSC’s satisfaction, the staff recommended that the rulemaking be terminated. The staff concluded that the new standards would likely reduce ROV rollovers, by increasing lateral stability and decreasing occupant ejections through seat-belt use and improved side retention.

The brief public portion of the meeting in September at the Grand Hyatt hotel at Dallas-Fort Worth airport featured a presentation on voluntary standards-setting to address ROV fire hazards by Mechanical Engineer Han Lim of the CPSC’s Division of Mechanical Combustion Engineering. Attendees included Honda, Polaris, Yamaha, Kawasaki, Textron and members from the OPEI.

Lim noted the lack of any safety standards regarding ROV thermal or fire issues, despite the diverse sources of ignition – debris intrusion, fuel tank integrity, and flammable plastic body panels, for example. Since 2004, ROV manufacturers have launched some 47 recalls for a variety of defects that could result in fires, such as fuel tanks, hoses, and filters; electrical components; and exhaust systems. In addition, the CPSC has launched at least 120 ROV fire In-Depth Investigations since 2004, when the agency began to track this trend.

The CPSC recommended forming task groups to study the recall data and CPSC In-Depth Investigation reports in formulating improvements and standards. Lim recommended the group focus on fuel tank punctures, structural integrity of the engine, the fuel system and electrical components and spacing requirements to shield ignitable parts from excessive heat. Lim also suggested that the group look at surface temperature limits to prevent contact burn injuries and standards to prevent debris penetration. The CPSC ended its presentation by speculating that manufacturers already had internal standards that addressed thermal issues, and by expressing its preference that industry representatives codify them in a voluntary safety standard. The commission offered its assistance in that process. The OEMs thanked the CPSC, agreed to look over the data and get back to the agency, but set no timetable for doing so.

Market Pressures Raise the Heat on Honda Pioneers

Polaris is hardly the only manufacturer to create a fire hazard in the pursuit of market share. The May 15 recall for all 2016-2017 and some 2018 Honda Pioneer 1000 ROV models for fire and burn hazards is another good example of how trying to wrap every desired market attribute into one ROV without adequate cooling and thermal protection can create fire-prone designs.

Honda introduced the Pioneer 1000 in 2015 for the 2016 model year, to compete in the side-by-side market with competitor vehicles that seated four to six passengers and cargo, but with the improved trail capabilities associated with smaller two-occupant models. Typically, manufacturers use a longer wheel base to fit more passengers and cargo, but do so typically enlarges the turning radius and reduces its maneuverability on off-road trails. Honda bragged that it had overcome that problem with its own “packaging technology,” that mostly consisted of placing an engine in the center of the vehicle under the occupant compartment. Roomy? Check – the Pioneer fit up to five occupants. Peppy? Check – a large displacement twin-cylinder delivered 72 HP and a top speed of 67 mph. Agile? Check – the Pioneer 1000 boasted a shorter wheelbase and turning radius.

What did customers get for all of that? Hotter-than-hell occupant compartments and major thermal management problems that produced complaints, burns, fires, and a Honda Product Improvement Campaign, followed by the recall.  

In August 2017, Honda issued Product Improvement Campaign for a “Cabin Comfort Improvement Kit,” which included weather stripping, seals, and rubber mats and pads, presumably to reduce the high temperatures in the occupant seating area. According to the bulletin:

American Honda Motor Co., Inc. is conducting a Product Improvement Campaign to improve cabin comfort on 2016 and 2017 model year Pioneer 1000 vehicles. With the addition of an accessory roof and windscreen/windshield and under hot weather conditions, occupants may experience uncomfortable heat coming from the engine compartment. A cabin comfort improvement kit that reduces the entry of hot air and lowers front seat area surface temperatures is available.

Nine months later, Honda was forced to recall all 2016-2017 and some 2018 Honda Pioneer 1000 because the “muffler can overheat, causing the plastic heat shield to melt or catch fire, posing a fire and burn hazard to consumers.” The Honda Powersports website offered an additional root-cause fact: the heat shield itself was melting or igniting due to “one engine cylinder misfire condition.”

Mitigating Heat Build-up with Better Design

Polaris’ and others’ inability to design an ROV that can go fast without burning up itself and its passengers has created a whole aftermarket for accessories that mitigate heat accumulation –which owners don’t discover they need until they experience the problem themselves. One 2016 article for UTV enthusiasts introduced six products to keep a RZR Turbo from overheating:

We have heard a few RZR Turbo owners complaining of their engines overheating. Under super hard driving, under load, we have had it happen to us too. So there has [sic] been a number of companies trying to address the issue, and they have come up with some pretty interesting products.

The universe of heat-reducing products includes the Polaris RZR Regulator Rectifier. Manufactured by Rick’s Motorsport Electrics, the Rectifier “is built using Mosfet Technology, allowing the regulator to run cooler & more efficiently. Rick’s worked with RZR owners to customize a part that is easy to install and will solve common overheating issues.” There is also the CBR Radiator & Heat Exchanger Combo: “If you’re going to race or even fully build out a XP Turbo, getting completely rid of any potential heating problems is a major concern. CBR has been building custom, oversized and race spec’d radiators and intercoolers for a long time now. The BMP 2016-Up RZR XP Turbo Slip-On Double Barrel Exhaust “drastically reduces heat buildup.”

Finally, a clutch-cooling device called “The Blow Hole,” a fan that expels hot air “even at low ground speeds as opposed to the OEM rpm dependent clutch fins. According to a review in ATV MTNK, the Blow Hole pulls approximately 225 CFM of air through the clutch ductwork.”

Meanwhile, Can-Am, a brand owned by Bombardier Recreational Products, has tried to get the design right the first time. In 2013, BRP debuted the Can-Am Maverick 1000 series, with a 1,000cc twin-cylinder Rotax engine, rated for 101 horsepower.  In this design, the engine is located underneath the center of the chassis and beneath the passenger compartment, but it modified the air intake and exhaust tract to create what the company calls “High-Flow Dynamics.”  

According to reviewer John Arens in ATV Illustrated, First Look: “The air intake location, the air plenum size, and exhaust valve size were all increased, and the exhaust tubes are now a dual, tuned length system that flows through dual mufflers at the rear. We’ve always noticed a slight throttle lag in the past thanks to air flow restrictions, and the new High-Flow system should eliminate that trait.” Elsewhere, he noted: “[w]ith the area around the muffler now open for better airflow, temperatures around the exhaust system are reduced as well.” Unlike the Polaris ROVs, the dual exhaust pipes remained separate, with a “tuned length system that flows through dual mufflers at the rear.”

In 2012, reviewer Lance Schwartz of ATV Rider pointed out another key difference between the RZR and the Can-Am: “Exhaust gases travel from the cylinders through individually tuned headers, resonators, industry-first catalytic converters and eventually exit through dual exhausts.”

How Long Before Industry Addresses its Fire Problems?

The federal government spent seven years tango-ing with ROV manufacturers over voluntary standards to prevent their products from flipping over, spewing or crushing occupants. That dance included the threat of rulemaking, independent CPSC lateral stability testing, and innumerable meetings with industry types to get to a place of – if not a mandatory standard – recognition and notice that manufacturers must design these vehicles to certain criteria to prevent these crashes, injuries and deaths.

What’s it going to take to make the industry address its thermal problems? As the public portion of the September industry-CPSC confab only lasted for about 30 minutes, it was hard to take the temperature of the room. But perhaps the regulated and the regulator can learn something from the last go-round, and cut right to setting rigorous safety and engineering design standards so that manufacturers don’t ignite the vehicle or the occupants on their way to the bank.

 

Reflections of a Product Defect

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Some homeowners try to reduce their maintenance time and costs by cladding their homes with vinyl. Others try to reduce their heating and cooling bills by installing energy efficient low-e windows. And if one of these types of homeowners lives close enough to the other, and the angle of the sun and the time of year is just right, these estimable goals can result in a fire.

Low-e windows are double-or triple paned with a thin metal or metallic oxide coating applied to one or two of the inner or outer surfaces, and in some cases, an inert gas with low thermal conductivity, such as argon or krypton, is funneled between the panes. The window’s emissivity refers to its tendency to radiate absorbed heat. The transparent glass allows sunlight to pass through but the metallic coating and gas layer reduces the transmission of the sun’s heat. In colder climates, low-e windows improve a home’s thermal insulation, keeping heat in. In warmer climates, low-e windows can keep a home cool by keeping the sun’s heat out.

The construction of low-e windows also increases its reflectivity – untreated glass windows reflect 10 percent of the sun’s rays; low-e windows reflect 30 to 50 percent of sunlight.

Low-e window heat-damage incidents are artifacts of modern construction. Vinyl siding was introduced in the late 1950s, and low-e windows came into the marketplace in the early 1980s. Now both are ubiquitous. According the U.S. Census Bureau’s Survey of Construction, vinyl siding has been the most commonly used exterior cladding on new single family homes since 1994, which the National Association of Home Builders reports, was installed on more than a third of new and existing homes in 2014. Today, a combination of government incentives and local building codes have resulted in low-e windows capturing 80 percent of the U.S. residential market and 50 percent of the commercial market share.

The prismatic heat of sunlight reflected on curved glass has been noted on a large scale. In Las Vegas, the Vdara Hotel’s 57-story structure with a curved exterior threw a concentrated beam of heat, burning hotel guests arrayed around the swimming pool area below, causing one news outlet to dub it a “death ray.” In London, wags re-christened the so-called the Walkie-Talkie building, a $400 million skyscraper with a concave design, the Walkie-Scorchie building, after it was blamed for focusing rays of light powerful enough to melt cars on the street below.

But cases involving individual homes and low-e windows started popping up in 2007, according to the International Association of Certified Home Inspectors. Forensic engineer and Adjunct Professor of Alternative Energy at Western New England University. Curt Freedman first encountered the phenomenon when he was called to investigate a case of melted vinyl siding on a home in Hasting on the Hudson, New York. This spurred Freedman to start collecting exemplar windows and do his own testing to refine his understanding of the phenomenon.

It takes several factors aligning to create a scenario in which the reflected light from a low-e window can produce enough heat to melt vinyl or ignite brush. In the former case, there must be 15 to 30 feet of proximity to the window, Freedman says. The angle of the sun must be low enough to reflect the sunlight onto an adjacent building – which is why these incidents tend to happen in the colder months. Finally, the window itself must be concave – created, in part, by a difference in the barometric pressure between the interior of the glass panes and the outside air pressure. This effect is more pronounced in the cooler months, as the gases contract and pull the pane in.  

According to a National Home Builders of America white paper: “Such a concavity is a normal response to pressure differences, does not affect the performance of the window, and does not constitute a defective window condition. However, the concavity may focus sunlight reflected from the window in a fashion similar to the effect seen when light passes through a magnifying glass. This focused light may land on adjacent building surfaces, and appear as a brilliant star-shaped spot. The concentrated heat generated by the focused reflected sunlight results in surface temperatures well above that encountered from direct sunlight, and has the capability of causing damage to exposed materials, especially those which are plastic based.”

“The barometric pressure may have some role but what I believe the more major role is temperature – the colder the temperature, the more the window is sucked in and it changes the curvature of the glass,” he says.

Some theorize that low-e windows featuring argon gas are more prone to this curvature, because over time, argon escapes from the void between the panes, but air molecules, which are bigger, can’t get in to replace the inert gas. But Freedman says this phenomenon also occurs in low-e windows with air between the panes.

Some of the recent cases Freedman has investigated include:

  • A report of fire damage in January 2015 on the north exterior wall of a home in Whitman, Mass. The fire department found smoke seeping into the second floor, and opened up the interior walls in two bedrooms looking for the source. The fire was extinguished, but firefighters found other hot spots that needed to be wet down. When investigators failed to find fault with the building’s electrical or heating system components, the state Fire Marshall determined that the mostly likely cause was the concentrated reflection of sunlight coming from an adjacent home’s second floor windows. The building’s homeowners told fire officials that it was the second time the vinyl siding on that side of the house had been melted and replaced.
  • In November 2016, a neighbor’s low-e window burned a four-foot square patch of mulch, in Waxhaw, North Carolina.
  • On January 28, 2017, the state Forest Service extinguished a fire at an Advance, North Carolina residence that destroyed an old dog house and burned a patch of ground covered in pine straw. Four days later, the department responded to another fire in the same area and determined that it was set by the reflection of sunlight off the neighbor’s second-story window. Fire investigators measured the temperature at the cross-shaped reflection at 341 ºF.
  • On January 6, 2018, low-e windows were blamed for burning through the wooden shingles of an adjacent house in Somerville, Mass. through to the framing underneath. It was the second incident in six years.

 

Besides general consternation, melted vinyl siding has resulted in at least one civil action. In 2016, an Oregon man sued Associated Materials of Cuyahoga Falls, Ohio, the makers of Alside siding, for rejecting a warranty claim for melted vinyl siding, citing an unusual heat source as the root cause.

For Freedman’s part, he continues to assist fire investigators who suspect that a low-e window might be the ignition source in some fires. His goal is to educate fire departments to recognize the phenomenon.

“There is nothing in the fire investigation books about concentrated sunlight fire. No one’s really published on this topic,” he says. “The issue of reflected light off windows needs to be better understood, for example, what causes wood to burn from reflected sunlight? They need to recognize when these sunlight induced-fire events occur, and also distinguish legitimate cases of solar induced fires from arson.”

Deadly Treestands

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It was a tough hunting season in New York State last fall – at least four hunters died in falls from treestands, according to the New York State Department of Environmental Conservation. The North Carolina Wildlife Commission tallied three deaths from tree stand falls in the 2016-2017 hunting season. On the last day of 2017, a hunter from Milwaukee died after he fell out of a tree stand in Sauk County. Kansas City Royals manager Ned Yost nearly died in November when he fell 20 feet from a treestand at his Georgia home. Yost fell through the floor of the stand, breaking his pelvis and several ribs, and would have bled to death, had he not had his cellphone, according to news accounts.  

Falls from treestands now kill and injure more hunters than guns. For example, in 2014, the Indiana Department of Natural Resources reported that in 182 reported hunting accidents over a five-year period, 100 – or 55 percent – involved falls from treestands. But how many of these incidents are the result of user error, manufacturing or design defects is unknown. The non-profit International Hunter Education Association, which gathers detailed hunting incident data from state agencies, is the only national clearinghouse of hunting injury and fatality statistics. Its reporting form solicits detailed information on each incident about the hunter, the equipment, and the reason for the fall, from state environmental officials who regulate hunting, but the IHEA does not publish its data. 

The injuries from these falls can be devastating. A recent study by researchers at the University of Wisconsin department of neurosurgery and University of Alabama at Birmingham examined treestand injuries from 1999 to 2013, and found that 55 percent resulted in spinal injuries. 

Not surprisingly, hunter safety information offered by groups such as the Treestand Manufacturers Association, which bills itself as “a nonprofit trade association that specifically devotes its resources to promoting treestand safety through education,” only examine the issue through the lens of hunters’ behavior. But, consumer complaints, recalls and investigations by the U.S. Consumer Product Safety Commission indicate that some treestands fail because they are poorly designed and cheaply manufactured. Outdoors Underwriters Inc, an insurance company that caters to hunters and outdoors organizations and businesses, recently published an analysis of the 27 most serious treestand injuries, defined as “injuries that had medical bills in excess of $50,000, or partial disabilities, and/or fatalities.” In this subset of claims, more than a quarter – or seven cases involved a mechanical issue with the stand. Similarly, the Tree Stand Safety Awareness Foundation found a significant percentage of equipment failure its injury and death statistics from 724 falls that occurred in 10 states from 2010 to- 2016. Among the top five causes of falls: 39 percent were attributed to human error; 31 percent were attributed to a strap break, a stand break or a step/ladder failure. 

Since 2000, there have been at least 14 treestand recalls for cables and chains that snap, bad welds, pin breaks, and webbing problems. For example, In November 2016, Summit recalled 270 Summit Explorer SD Closed Front Climbing Treestands because a weld in the treestand’s frame could suddenly break. In October 2015, Global Manufacturing Company recalled 5,300 model year 2014 API Outdoors “The Marksman” model climbing treestands, following the report of one user who suffered a broken vertebra, fractured rib and sprained shoulder when the cable assembly released and led to a fall.

Hunters have also reported treestand failures to the commission. On March 14, a hunter reported a November incident: 

While deer hunting this morning using an API Marksman climbing treestand, I was coming back down the tree and a structural support on the stand broke in two, resulting in me flipping backwards out of the stand and hitting on my back. Thankfully, I was only 4 feet off the ground when it happened resulting in a bruised back and a torn calve muscle. I have pictures of the stand along with the model number. I see that this stand has an unrelated recall for the chains but my feeling is this stand needs to be taken off the market completely and an effort to eliminate anybody from using this stand in the future. 

On March 5, another hunter reported a September 10 incident:

I purchased my API stand from Bass Pro about 4 years ago. On Sunday it suffered a total structural failure while I was using it. The standing platform cracked in half, suddenly without warning. Luckily, I was in a full harness and my fall was arrested. As background information, I have used this stand about 30 times. I also have kept it inside when stored and never left it out in the elements for more than a day or 2. I've always used care in using the stand as not to put undue wear on it. When the stand failed, I was climbing up the tree. At the time of failure, I was standing on the platform and not moving either the top or bottom section of the stand. The failure was sudden and fast, it was like the floor dropped out.  The pictures attached show the failure points. It failed at the location where the foot strap is connected to the standing platform. In this location, there is less structural material. It is also where your feet attached to the stand when climbing, and the pressure of downward force is focused. 

The commission also regularly conducts epidemiologic investigations into treestand injury and death incidents – which may not lead to a recall, despite findings of a product failure. For example, in 2002, the CPSC conducted an investigation of the “Baby Grand Lite” Model GS2300 treestand because of possible weld problems that caused the seats to fail. Initiated by a complaint from a Fowlerville, Michigan hunter who suffered back injuries after his treestand failed, the investigation led CPSC staffers to obtain exemplar seats. The examination found that the welds were substandard. In May 2002, the Commission issued a Product Safety Assessment Report indicating that “the weldments showed poor welding technique had been used” and that “fracture surfaces of the failed weldments showed various weld discontinuities,” including incomplete fusion, no fusion between the tab and channel of the seat frame, no evidence of a weldment between the seat arm and the folding portion of the stand, and weld porosity. The report concluded that the welding of the treestand seat frame channel to the mounting tabs was not done with the highest quality welding technique in the subject stand and the two samples provided by the company.

(Despite the injury incident that prompted the epidemiologic investigation, and the discovery of weld failures in two of the exemplar stands examined, the CPSC did not take further action in this case.)

In 2015, the CPSC also investigated a February 2015 incident in which a 50-year-old male from Wall Township, New Jersey fell 15 feet, as he prepared to descend, when the bolt on his API Crusader treestand broke, the frame cracked and the snap pin wire snapped. 

Most of the recalled treestands were manufactured in China, sold in the U.S. at major outdoors equipment retailers and imported by a tangle of U.S. companies – some of which appear in public filings to be related. This means that a single manufacturer could be supplying different importers with the same basic treestand that is branded under different names in the U.S. If the manufacturer uses sub-standard materials or assembly practices, the failures can appear unrelated, because the importers’ brand name and model names may be different.  

In November 2015, Gene “Vic” Moore fell approximately 20 feet to the ground after the foot section on his API Crusader Treestand failed. Moore broke his right leg in multiple places and was left with a permanent injury, says Attorney David Whittington of the Summerville, South Carolina firm of Knight and Whittington. Moore purchased the treestand in November 2014, and had used it for less than a year when it collapsed. Whittington is exploring the possibility that manufacturing practices and design choices, made solely to make it easier to pack and transport into the woods, were among the reasons for the stand's failure. 

“One of my client’s concerns has to do with the safety of other hunters and concerns about the safety of this particular treestand,” Whittington says. “My client was specifically drawn to this model because it was marketed as inexpensive, lighter weight and more portable, but now, as he reflects on it, he is concerned the manufacturer sacrificed safety when trying to improve sales by making this stand easier for hunters to carry into the woods.” 

The Failure to Regulate

Like many consumer products, treestands are only subject to voluntary regulations, despite an attempt in the early 2000s to place the platform devices under federal standards. In March 2002, Carol Pollack-Nelson, a former CPSC employee and safety consultant, petitioned the CPSC to establish a mandatory standard for hunting tree stands to address their design and construction, and to ban safety belts in tree stands. Pollack-Nelson argued that hunting tree stands posed a serious injury and death risk, and that safety belts “can prove to be a deadly precaution, as there is risk of fatality caused when it constricts around the chest and/or abdomen.” 

“I first learned about the issues contained in my petition through my work in a case in which a 15-year-old boy strangled to death in the single strap waist belt. In this case, the 15-year-old was hunting by himself on his family’s property,” Pollack-Nelson said in an email. “He’d been hunting his entire life and had just received a new treestand for Christmas, the night before his death. He went out on Christmas day and was later found by his family, hanging from the belt. The top part of his climbing stand was no longer affixed to the tree. With all of his body weight suspended by a single strap, worn “properly” around the chest, he was unable to breathe or rescue himself.”

The briefing package that the CPSC staff prepared for the commission documented the hazards of using treestands for hunting. The staff cited 6,000 injuries attributed to treestand use that were treated in U.S. hospital emergency rooms in 2001 based on a review of National Electronic Injury Surveillance System (NEISS) data. It also reviewed the Injury or Potential Injury Incident Database (IFIl), the In-Depth Investigation Database (INDP), and Death Certificate Database, and found 137 incidents involving treestands from 1980 through 2001, including 62 deaths and 55 injuries. Of the total incidents, 54 mention treestand failures resulting in 6 deaths and 40 injuries; eight fatalities involved hanging or traumatic asphyxiation by a safety belt or harness.  In April 2004, the staff recommended that the petition be denied, because it concluded that the standards adequately addressed the products’ structural integrity, stability and adherence to the tree, under a rated static load condition.

Despite the commission’s rejection of a mandatory standard, the CPSC staff worked with the ASTM Hunting Tree Stand Subcommittee and the TMA to assess the voluntary standards related to dynamic loading conditions, and to address safety when a hunter is entering, exiting, ascending, and descending a hunting treestand. 

One of the issues that emerged was the problems created by safety harnesses. The Treestand Manufacturer’s Association agreed to require a full body harness be included with any treestand that seeks TMA certification. Hunters’ failure to use full-body harnesses while hunting in treestands is often cited as a reason for the large number of falls. But the use of harnesses itself can sometimes lead to fatalities. Hunters can escape the broken bones of a fall, only to suffer what is known as suspension trauma after being suspended  in a harness for extended periods with no way to extricate themselves. For example, in a 2003 CPSC investigation involving API Grand Slam Shooting Star and other epidemiologic reports, hunters died trying to extricate themselves from a full-body harness

Suspension trauma is a well-documented succession of medical events that can include nausea, burning sensations in the extremities, fainting, shock, respiratory distress and death. Studies show that humans cannot survive in an immobile suspended position for very long without sustaining serious injuries. 

Salena Zellers Schmidtke, a biomechanical engineer and safety expert, noted that serious injuries can occur to people suspended from a harness for as little as ten minutes:

“After ten minutes of inactive suspension, which could easily occur if the person is injured, the body can go into shock because of blood pooling in the legs,” she says. “This can result in breathing problems, brain damage and even death.”

Some of the CPSC’s work with the voluntary standards involved prodding the TMA to write better voluntary standards regarding requirements for self-rescue. While the agency regarded industry standard TMS 06-02, and ASTM standard F2337, requiring a full body harness as “a significant safety improvement,” there was still concern about the absence of a requirement to ensure that hunters can extricate themselves while suspended. 

In 2009, the commission wrote a letter chastising the association for its lack of progress on this issue: 

Since July 2003, when CPSC staff first requested that ASTM address the issue of self- rescue, the only standards-related progress made has been limited to suspension relief. CPSC staff would like to see standards modified to include performance requirements that would ensure a hunter's ability to safely return to the ground in an emergency situation. It is our understanding that a number of safety devices that would likely meet such requirements are already available. CPSC staff views self-rescue as equally important to harness use, recognizing that the latter is a critical component in the overall scheme of safety and self-rescue. ….CPSC staff understands that many treestand users choose not to wear safety harnesses or other safety devices. Given this fact, staff encourages TMA and the industry as a whole to try to gain an understanding as to why hunters do not utilize safety-related equipment or devices which are readily available. For example, might a more user-friendly harness design (one that is easier to wear, adjust, untangle, etc.) help to encourage harness use? Has the TMA conducted any studies or surveys to attempt to understand why hunters do not wear basic safety devices that could prevent severe injury, paralysis, or death?

The CPSC conducted its own evaluation of harnesses in 2011. “An Evaluation of Injuries from Falls and Suspension Traumas Related to Treestands" summarized the CPSC staff assessments of various full-body harnesses, sold separately or included with a treestand. The CPSC tests found that “all of the harnesses tested produced pressure points.” According to the commission’s annual summary of voluntary standard activities, the report also discussed the injuries sustained after falling from a treestand and the causes and effects of suspension trauma. The 2011 Standards Activities Report noted that CPSC staff would release the test report when it was approved. The report was never finalized or published.  

The CPSC continued to participate in voluntary standards setting through 2014, after which the agency cut back its involvement to simply monitoring.

Have voluntary standards done anything to lessen the death and injury toll from treestand equipment failure? With a lack of centralized data collection it’s difficult to discern. Certainly, what death and injury data do exist show that equipment defects are at the root of a good portion of falls from elevates stands. The CPSC’s interest in the issue has been waning, but the falls, with their broken bones, damaged spinal cords, and sudden deaths continue.  

Litigation Pushes Ski Boat Manufacturers to Safer Designs

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On July 17, 2014, seven-year-old Ryan Paul Batchelder lost his life in a boating mishap that his family alleges, was completely preventable.

The occasion was a Batchelder family reunion on Lake Burton, a 2,775 acre-reservoir in Georgia’s Northeast corner. Ryan was one of a party of six that included his uncle, Darin Batchelder, his brother Josh, and his first cousins, Kayla and  Zack, in a rented 20-foot Malibu Response LX Bowrider. That Thursday evening, the children were seated in the bow of the boat, with great uncle Dennis Ficarra at the helm, and Darin in the adjacent port seat.

Ficarra was navigating the Bowrider across its own wake at less than 10 mph, when the bow dipped under wave, immediately swamping the boat. Josh and Kayla scrambled over and through the narrow opening of the windshield into the cockpit, Zack jumped out of the sinking boat and Ryan and the seat he was sitting on was washed overboard; Ficarra attempted to halt the sinking by throwing the boat into reverse. Zach, Josh and Kayla were able to climb through the narrow windshield opening into the cockpit of the boat.

Ryan, however, became entangled and lodged in the propeller rudder and driveshaft, which severely lacerated his body and amputated his leg. He died from drowning and massive blood loss. With Ryan’s body wedged in the vessel’s mechanism, the boat was disabled, and the Batchelder family had to wait for help to arrive as the water filled with blood. Ultimately, the boat had to be towed to shore and lifted out of the lake for rescue personnel to untangle the young boy’s body from the propeller.

Ryan’s parents, Steven and Meg Batchelder wanted their funny, fearless youngest son to be remembered for two of his fondest ambitions: to own a million stuffed animals and to become Santa Claus. They combined them in the founding of the Ryan Batchelder Foundation, also known as Little Hugs. The organization donates new stuffed animals to children who need comfort, providing more than 3,000 of them to impoverished children in the Caribbean and Latin America.

The Batchelders also want another legacy for Ryan: safer boats. In a civil lawsuit filed in the state Superior Court of Rabun County, the Batchelders allege that the Malibu Bowrider was defective and that the manufacturer was negligent in designing a boat that when used as intended, the weight of occupants in the bow rendered it vulnerable to swamping. The Batchelders allege that Malibu failed to adequately test the Bowrider as it was likely to be used – indeed as it was marketed. Finally, the complaint alleges that Malibu failed to warn its customers about the unsafe nature of the boat.

The lawsuit, filed in May 2016 is headed for trial next April. The lawsuit is in the discovery phase.

Malibu Boats bills itself as “the world’s largest manufacturer of watersports towboats, owning over one-third of the worldwide market share.” Founded in 1982 by six water-skiing enthusiasts from California, the company opened a production facility in Loudon, Tennessee in 1992. Eventually, the company headquarters relocated there from Merced, California. In 2006, the private capital fund, Black Canyon Capital acquired Malibu Boats, and later took the company public in an IPO. Its corporate history, sketched on its website, describes its forward-thinking approach to boat design. A timeline describes the addition of “the first on-board computer system, dubbed “Computron” which included the first and only LED graphic speed control.” and “By 1995 Malibu was confidently throwing out terms like “ergonomics” to describe the principles behind design considerations.”

But, the reality, as described in a deposition by Robert Alkema, one of Malibu’s original founders and former CEO, is: despite its outsized footprint in the world of towboats, Malibu’s design process was more relaxed. Alkema testified that the company created the step-over bow used in the Batchelder’s Bowrider LX in 1996, by simply cutting a hole in the deck of another model, called the Response, in their shop, and added some seats to the bow area. Alkema testified that the impetus for the design was market share: “It was a belief on our part that we could sell – or would – there would be a bigger market for a boat that had more seating.  And that’s proven by other specific open bow models. So the walkover was a thought to be a more novel way to maintain the skiability and the two rearward facing passengers, and have the seating in the front.”

Alkema testified that no engineering adjustments were made, despite the fact that the design would have added more weight to the bow of a boat that had originally been designed to have no weight in the bow. Nor did Malibu give any consideration to making a bow capacity weight limit for the Response LX. Alkema also testified that it would be up to the customer’s reasonable judgement to decide how many occupants could safely fit in the bow of the boat, and that the company had no testing protocol nor did any testing to determine safe weight capacity.

Bell v. Mastercraft

The problems with weight distribution and boat design that may have contributed to the Batchelder tragedy closely mirrors another incident involving Malibu’s main competitor.

In June 2011, Nicholette C. (Nikki) Bell won a $30. 5 million jury award in a Butte County, California court against manufacturer MasterCraft Boat Co. Inc. for serious head injuries she sustained in a 2006 boating accident.

Bell, then a 23-year-old California State University Chico student, was a passenger in a MasterCraft X45 boat out for a July afternoon of wake-riding on Lake Oroville, a reservoir in northern California. The driver was attempting to turn the boat around to pick up a fallen wake-boarder, when the bow dipped below the water line, pitching Bell and passenger Bethany Wallenburg into the water and the path of the propellers. Wallenburg, who went into the water feet first, sustained injuries to her elbow, leg and lower back. But Bell suffered major head trauma when the propeller sliced through her face and skull. Her permanent injuries included the loss of her left eye and part of her frontal lobe.  

MasterCraft had created the 24-foot wake board boat by combining design the hull of one model, the X-80, and the deck of another model, the X-Star. The result was a hull with a downward curve and a SuperFly pickle-fork bow, with an 18-person capacity. MasterCraft advertised it as “the most spacious 24-footer on the inboard market.”

The boat was loaded with 20 passengers, and Bell and Wallenburg were among 12 people in the bow when the X45 swamped.

The court proceedings pitted the plaintiff’s theory of the case – that the boat suffered from a defective design against the defendant’s – that the operator was intoxicated and caused the injuries when he attempted to throttle forward to bring up the bow, instead of putting the wakeboard boat into neutral. Testimony during the 49-day trial revealed that MasterCraft had combined the two designs and set an 18-person, 2,928 pounds capacity limit without doing any testing or risk assessments. Nor did MasterCraft provide boat owners any guidance on how the weight should be distributed. The plaintiffs also argued that another design flaw – a hole in the anchor locker located in the bow close to the waterline – allowed water to collect unseen in the hull. The extra weight of that water combined with the downward curve of the bow, also known as reverse sheer – exacerbated the tendency for dipping, the plaintiffs argued.

“They had no naval architects and they didn’t do any engineering,” says attorney Roger A. Dreyer of the California firm of Dreyer Babich Buccola Wood Campora, LLP, who represented the Bell family. The design criteria was what looks good — not what was safe. The design was completely contrary — boats don’t have bows that go to the water. There’s no efficiency. But one [Mastercraft manager] testified that it looked ‘sexy.’”   

The jury found that the MasterCraft design accounted for 80 percent of the fault; the boat operator Jerry Walter Montz was 20 percent responsible.  Bell, who suffered permanent brain damage. The jury awarded Bethany Mercer $530,688.

The lawsuit had its own wake, sending competitors such as Malibu to develop safety tests that did not exist previously. Malibu COO Rick Anderson testified in the Batchelder case that when he joined the company in July 2011, Malibu’s product development team was in the midst of developing testing for the bow capacity labels, such as a Bow Dip test and a Rough Seas test. Sometime before the end of 2011, the company made the decision to put maximum capacity labels for the bow area in the boat.

Anderson testified that the main purpose was not to protect customers, but to shield the company: “We thought that would help – would be one of the biggest things to help on the           liability side if anything ever did happen.” In his deposition, he said “I think that’s what pushed it for the industry.  Because that’s when it became an industry problem.  So everybody stepped back and looked, okay, if we are going to have people out here misusing our product, we are seeing it, what do we  do to try to help defend that.”

Boats Built With Few Rules

Unlike passenger and commercial vehicles and aircraft, boats are manufactured under few regulations, and are not subjected to compliance tests to meet a particular dynamic performance standard. The U.S. Coast Guard is the federal agency that promulgates boating regulations, which include standards related to ignition, fuel and electrical systems, navigational lights and safe powering.

They also include standards on capacity labels and limits. Each boat is required to be marked with the maximum capacity in whole numbers of persons and in pounds. The safe loading regulation requires that a calculation the takes into account boat weight and maximum displacement, along with the added weight of occupants. However, the Coast Guard does not test boats. And, there is no requirement that boat manufacturers test their boats at their advertised capacity. Many, including Malibu did not, until the Bell verdict.

Many of the standards apply to all vessels, however, the regulations regarding Safe Loading and Display of Capacity information only apply to monohull boats less than 20 feet in length, except for sailboats, canoes, kayaks, and inflatable boats.

That means that neither the MasterCraft X45 – at 24 feet – nor the Malibu Response LX Bowrider – at 20 feet – would be regulated for safe loading or capacity labelling.

All other standards and certifications are voluntary, written by industry groups such as the American Boat and Yacht Council and the National Marine Manufacturers Association. The former claims: 

“Standards are the core of ABYC as they are continuously researched, developed and revised by over 400 volunteer marine professionals on 16 Project Technical Committees (PTCs) from all fields of the industry including the U.S. Coast Guard (USCG), trade organizations and private entities. ABYC collaborates with safety organizations worldwide such as Transport Canada and the International Organization for Standardization (ISO). As a result of strong industry and government support, ABYC has evolved into the premier standards developer and the viable alternative to mandatory government regulations of the marine industry.”

Boat manufacturers can and do tout ABYC and NMMA certifications, but according to one certification compliance inspector assigned to Malibu’s Tennessee plant, the trade organizations do not do any dynamic inspections or testing before certifying a model to the industry standard. Clyde Head, who had worked for a decade as an independent inspector for the National Marine Manufacturers Association, testified in the Bell case that his inspections consisted of static testing of components such as the electrical, seating, re-boarding handrails.

You Cannot Change the Laws of Physics

The revelations contained in depositions filed in Rabun County Superior Court echo those of other manufacturers in the RV and bus industries who failed to systematically determine appropriate weight limits – employing an ad hoc design process conducted with little testing by staff without engineering credentials and driven more by market considerations than safety.

The laws of physics show, in example after example, that overloading a conveyance in critical locations under certain circumstances becomes a literal tipping point that routinely causes injuries and deaths. Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support strains tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants in vehicles that offer little occupant protection in crashes.

In August 2006, The Safety Record published a story of repeated RV recalls by Country Coach, one of the nation’s largest manufacturers of Class A motor homes (now owned by Winnebago Industries) to replace the tires on some of its motor homes, blaming the tire manufacturer for outfitting its recreational vehicles with tires unable to carry their weight.

Country Coach, blamed Toyo’ Tires’ M102z models for more than 50 tire failures since 2003 – a charge Toyo denied. But overloading was an industry-wide problem in the early 2000s. At least five manufacturers, including Fleetwood, Newmar, Airstream, Four Winds and National RV Inc., had initiated recalls involving more than a dozen motor home models with incorrect weight or tire pressure ratings.

Rick Morrison, an attorney based in Mobile, Alabama, who was litigating two separate cases of left-front tire failures on motor homes that resulted in fatalities said, at the time: “As far as I’ve seen, there is no engineering process, no testing, nothing that the RV manufacturers have done to make sure that the tires are appropriate for their vehicles and have the appropriate load-bearing capabilities.”

In June 2015, The Safety Record published a two-part story about a 2009 fatal rollover in Mississippi that resulted in a civil liability settlement, a class-action lawsuit, two recalls and a NHTSA Audit Query. (See A Bus Crash, Litigation and a Surprising Result Part I, Part II)

In July 2009, two members of the Shreveport, La. First Baptist Church youth group died and 21 passengers aboard a 42-passenger 2007 Starcraft XLT International 3200 bus manufactured by Forest River were injured. The group was enroute to Macon, Georgia to attend a youth ministry camp, when the left rear tire of the Starcraft bus suffered a catastrophic tread separation, prompting a loss of control that caused the bus to roll over one and a half times.

The company had built the bus on a Navistar chassis certified to a certain fully loaded weight. But in outfitting the bus with extra seats and a cargo room for customers such as churches, Forest River had cut the chassis in half and extended it to make it longer. Frame rails were also added to the rear of the bus to extend it even further for the cargo area. As re-configured by Forest River, the bus was no longer safe to carry a full load of passengers and their luggage. Nonetheless, as a second-stage manufacturer, Starcraft used the original manufacturer’s compliance certifications to assert that the vehicle met government safety standards.

The victims sued Forest River. John Davidson, a Jackson, Mississippi lawyer who represented some of the plaintiffs discovered this loaded weight discrepancy in the First Baptist’s bus, and other, similar medium-sized buses. He also discovered, in deposition testimony, that none of Forest River’s engineers actually had engineering degrees, and the company had no industrial scales to weigh their products.

Fifteen-passenger vans continue to be a vehicle that is unsafe for its intended use. NHTSA research shows that 15-passenger vans have a rollover risk that increases dramatically as the number of occupants increases from fewer than five to more than ten. Between 2004 and 2013, 653 Americans died in crashes while riding in 15-passenger vans – an average of 65 occupants per year, according to NHTSA data. The agency continues to put out periodic advisories, warning the public about the dangers of 15-passenger vans. The last one was in 2015.

Contrary to the popular narrative, Americans do not live in a world of over-regulated products. There are thousands of consumer products manufactured without regard to engineering design principles or safety standards, and without testing or meaningful government oversight. And, once in the marketplace, some of those products do great harm. But, as the cases against Mastercraft and Forest River show, litigation plays an important role in pushing industry to improve.  

Dreyer knew that he had achieved a measure of justice for Nikki Bell, but he had been unaware of the response from Mastercraft’s main competitor.

“We have many cases in which we have been able to affect change using conditional settlements. And even though we  got this eight-figure verdict in a community that was very conservative, it would have no effect on making the defendant do something to improve its practices,” Dreyer said. “To know that my case had an impact – it was a very powerful moment.”

E(xploding) Cigarettes

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A Kalamazoo man is the latest vaper who turned to electronic cigarettes as a healthier alternative to traditional cigarettes and wound up with serious burns. According to an April 1 news account:  “Took a couple of puffs off of it, had it between my fingers, looked down and my hand was on fire," said the man. "The whole thing just completely exploded. You don't know when they're going to explode, maybe some of them don't, I don't know, but they told me luckily I did not have it in my mouth because it would have put my eye out."

As the popularity of electronic cigarettes (also known as e-cigs) grows, the debate over the relative health risks of inhaling the vapors of electronic cigarettes is now matched by the controversy over their safety as a delivery device.  Introduced in 2003, and marketed in the U.S. in 2007, there are now roughly 466 brands of e-cigs offering at least 7,764 flavors. It’s an estimated $2.5 billion market supported by 2.5 million e-cigarette smokers. And increasingly, there are news reports of the devices exploding in users’ pockets, in their hands and in their mouths, resulting in severe burn injuries and lost teeth and eyes.

A 2014 U.S. Fire Administration report on electronic cigarettes relying on media reports to determine the scope of the problem only tallied 25 fire incidents tied to the devices between 2009 and 2014. One industry trade publication using the same method gathered about 151 incidents that mostly occurred in the U.S., with 88 resulting in injury or death This is surely an undercount. No public agency collects data on e-cig burns, injuries or explosions.. The National Electronic Injury Surveillance System, a survey of injuries seen at a nationwide sampling of emergency departments does not code for e-cigarette burn injuries, nor does the National Fire Incident Reporting System code for e-cigarette-related fires. The Food and Drug Administration has reportedly received about 70 consumer complaints on e-cigarettes, including three for burns. The U.S. Consumer Product Commission’s saferproducts.gov website has collected but one consumer complaint.

The Complex World of Vaping  

At its essence, an electronic cigarette delivers a cloud of vapor by heating a solution of propylene glycol and/or glycerin, mixed with nicotine and/or other flavorings. The parts of the delivery device consist of a mouthpiece, a cartridge or “tank” that holds the liquid, an atomizer, which heats the liquid and to create the vapor, a microprocessor, and sometimes a switch to control the heating element and a battery. Some e-cigs have an LED at the tip to simulate the glow of a cigarette. Ranging from $30 to $300, the devices themselves are also varied: cigalikes, sub-ohm vapers, mechanical mods, digital mods, disposable devices, rechargeable devices, variable wattage devices, variable voltage devices, those with fixed batteries and those with removable batteries – each promising the user convenience, a better vapor, stronger flavor, more control or some combination of these features.

The choices are so wide that there are long tutorials on vaping websites walking new users through the process, along with detailed safety instructions. Take, for example, sub-ohm vaping – these are devices that use an atomizer with a coil with a resistance value of less than 1.0 ohms, “to increase the power output of fixed voltage devices like mechanical vape mods and non-variable regulated devices to create more vapor or flavor,” according to the website www.misthub.com. “Although it might sound simple it's actually a complex and often controversial topic within the vaping community Sub-ohm vaping evolved as a way to increase power to the coils beyond what the safe capacity of regulated devices available at the time. Today high power regulated devices are widely available can deliver a consistent amount of power to the coils allowing you to use the resistance of your choosing and the ability to adjust it to your liking while potentially out-performing the capacity of even a sub-ohm build on a mechanical vape mod. While low power regulated devices remain best suited for resistances above 1ohm.” Got that?

And here are the accompanying safety warnings:

“To ensure safe performance you will want to always make sure you keep your mechanical vape mod clean. This includes all threads, vent holes, contacts, and the switch. If using a spring loaded switch be sure to take notice of how stiff it feels, if over time your spring seems to be getting softer or feels easier to press it is beginning to “sag” or wear out and needs replaced before it fails. If you are going to replace your spring in your switch you should strongly consider upgrading to magnets. You will also want to be sure that you use your mods locking mechanism when it is not in use. When selecting a mechanical mod for sub-ohm vaping there are a few things to consider. You will want to select a mod that is well vented. These vents allow heat to escape from normal use but also allow gases to vent in case of battery failure. You can't have too many or too large of vents for your mod. NEVER USE AN UNVENTED MOD TO VAPE SUB-OHM. You will also want a vape mod with low voltage drop. Voltage drop is the amount of voltage lost when the electricity travels from your battery through your device and to your coils. For this reason the most preferred are mods that feature a single piece tube, fixed position contacts, and magnetic switch. Spring loaded or threaded contacts, multiple piece tubes, or telescoping tubes might be convenient but will raise voltage drop. While spring loaded switches can wear out quickly or fail.”

This sounds like more like a science project than a cigarette.

Causes of Explosions

Given the electronic nuances of different e-cig configurations, there appear to be several explosion scenarios. The U.S. Fire Administration report noted that 80 percent of the explosions it identified occurred while the device was charging and attributed the failures to lithium-ion batteries, which have been known to fail in laptops, and more recently and notoriously, in Hoverboards. In addition, the narrow cylindrical shape of e-cigs with tapered ends may contribute to catastrophic events: “When the battery seal (at the end of the battery) ruptures, the pressure within the e-cigarette cylinder builds quickly and instantly ruptures, usually at the end. As a result of the battery and container failure, one or the other, or both, can be propelled across the room like a bullet or small rocket.”

E-cigs use a common lithium-ion (li-ion) battery cell called the 18650, a little larger than an AA battery, often used in series or a matrix for power tools and laptops, and manufactured by companies ranging from Duracell to unknown brands made in China. Li-ion batteries are “protected” or “unprotected.” There are three types of protection devices that automatically re-set the battery if it overheats, or disrupt the current during over-charging, or use a printed circuit board to prevent over discharge, over charge and over current. The unprotected batteries only use two of the protective strategies, while protected batteries employ all three. Not surprisingly, most 18650 batteries used in e-cigarettes are unprotected, and the attendant battery failures appear to be those that don’t meet the voluntary industry standards of UL 1642 and IEC 62133.

Trade publication eCig One’s analysis of the 151 e-cig explosions that have made the news found that 41 occurred while in use; 69 occurred while the battery was being charged; 25 occurred during transport or storage and 16 involved the removable batteries outside of the device..

These explosions might be caused by a mismatch between the charger and the device; In addition, loose batteries can short and discharge if the terminals make contact with other metallic objects, like change or keys. eCig One warns:

Most mechanical mods offer little to no safety protection, and some e-cigarette explosions have resulted from their misuse. Your battery might have a short because of a damaged wrapper. Your rebuildable atomizer might have a short because one of the leads came loose. Your battery might be over-drained because you forgot to charge it. Your battery might be over-stressed because the atomizer resistance is too low and you didn’t check it with an ohm meter or because the seller exaggerated the battery’s capabilities. The list goes on and on — and any one of these scenarios could possibly lead to battery failure. Most mechanical mods protect you from none of them. Use mechanical mods only if you understand and know how to mitigate their risks.

Regulatory Desert

E-cigarettes are as yet only lightly regulated. The Federal Food and Drug Administration, which currently has the authority to regulate cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco, is in the process of claiming jurisdiction over e-cigarettes. In April 2014, the agency published a proposed rule. In October the FDA sent its Final Rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs for final review, but it has not yet been released. And the FDA proposal only covers the health risks as they relate to a tobacco product, and does not address the electronic nature of the device.

In the meantime, President Obama signed in January the first law regulating the packaging of e-cigarette liquids. The Child Nicotine Poisoning Prevention Act requires liquid nicotine refill containers to have child-resistant packaging.  The law excludes products without nicotine or with sealed cartridges.

In October, the Pipeline and Hazardous Materials Safety Administration issued an Interim Final Rule prohibiting e-cigarettes in checked baggage and charging them while on board the aircraft. The rulemaking cited two incidents, one in August 2014 at Boston’s Logan Airport, and one in January 2015 at Los Angeles International Airport. In the former case, an e-cigarette in a passenger’s checked bag caused a fire in the cargo hold that forced an evacuation of the plane. (The LAX incident occurred in the baggage area of the airport.)  The PHMSA moved to codify a ban after the FAA issued a safety advisory that January that identified e-cigarettes in checked baggage as an emerging safety risk.

With so many e-cig options and so little regulatory oversight, it appears the explosions are likely to continue and proliferate.