Interpretation ID: nht81-2.6

DATE: 03/20/81

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Boyd, Payne, Gates & Farthing

TITLE: FMVSS INTERPRETATION

TEXT:

MARCH 20, 1981 NOA-30

Mr. Charles E. Payne Boyd, Payne, Gates & Farthing Virginia National Bank Building Suite 1240 One Commercial Place Norfolk, Virginia 23510

Dear Mr. Payne:

This responds to your recent letter concerning the problem plaintiffs' lawyers in civil cases have in obtaining certain data from foreign manufacturers of automobiles. Your letter specifically asked if there are any Federal safety standards concerning the crashworthiness of automobile seats. You state that the Department of Transportation informed you by letter that there are no such standards.

This is incorrect. Federal Motor Vehicle Safety Standard No. 207, Seating Systems (49 CFR 571.207), specifies performance requirements for vehicle seats in passenger cars and other vehicles. The standard requires passenger seats to be able to withstand forces equal to twenty times the weight of the seat without collapsing. This is a static test in which the force is applied directly to the seat. The standard does not, however, require a dynamic crash test of vehicles to determine seat integrity, such as the tests used by the Insurance Institute for Highway Safety cited in your letter. Under the National Traffic and Motor Vehicle Safety Act, as amended 1974 (15 U.S.C. 1381, et seq.), Toyota Motor Company is required to certify that its vehicles comply with Safety Standard No. 207. I am enclosing a copy of the standard for your information.

Please contact Hugh Oates of my office if you require any further information (202-426-2992).

Sincerely,

Frank Berndt Chief Counsel Enclosure

March 5, 1981

Frank Berndt, Esquire Chief Counsel U.S. Department of Transportation 400 7th Street S.W. Washington, D.C. 20590

Dear Mr. Berndt:

Congressman Bill Whitehurst forwarded to you my recommendation concerning legislation or regulations aimed at forcing foreign manufacturers of mechanical products imported into this country, to file for record with your agency certain data accessable to private litigants. You sent him a reply letter dated February 18th and he sent me a copy.

Your letter was informative and helpful. I would even agree that the regulations that you referred to are of some help. However, I do not think they truly meet the problem.

A news release issued by the Department of Transportation reported that foreign imports were notably less safe than their American counterpart automobiles. I also have in my possession in connection with litigation I am now pursuing against Toyota, data from various organizations around the country which data discloses that occupant safety and crashworthiness are of little concern to those who manufacture their cars and ship them into our country from abroad. The same data also diclosed that American manufacturers, on the other hand, have by-in-large, done very well in comparison to the foreign manufacturers in the area of crashworthiness and occupant safety.

I believe that most attorneys who practice products liability litigation will agree that the greatest single impetus for improved crashworthiness and occupant safety of American automobiles has been our system of tort liability, and the effectiveness of our courts and plaintiff's counsel in bringing to light defects and unsafe designs in automobiles.

Apparently however, most notably our Japanese friends have by-in-large not been subjected to the same examination by litigation of their design concepts and practices with respect to occupant safety. I for one am convinced, as are a good many of my colleagues at the plaintiff's bar, that part of the reason for this is the substantial difficulty of gaining access to files and records of the foreign manufacturers. This same difficulty was a subject of an in depth investigative reporting effort by "60 Minutes" last year. Perhaps you are aware of it.

The problem has not been an inability to gain in personam jurisdiction over the foreign manufacturers. That is the easiest part of it. However, once they are in court, they have proven very adroit at using every conceivable tool to preclude production for examination by plaintiff's experts of such things as design specifications, computer simulation data, and films of crash testing. Their excuses include the language barrier, the transoceanic legistics and communications probIems, as well as the "We are a multi-national corporation with warehouses full of documents, and it is impossible to locate what you want" excuse.

I believe that if the Japanese and Germans, whose cars are the principal culprits, were forced by the spector of substantial civil liability quickly and efficiently imposed, they would build their cars with the crashworthiness and occupant protection equal to American cars. I also dare say that if they had to do so, they could not market their cars at a price competitive to American makes.

While I appreciate the intent of the regulations you cite which require all automobiles imported to be certified to meet the Department of Transportation safety standard, that program does not appear to have yet begun to prove effective. One reason is that the Department of Transportation safety standards are by no means comprehensive. In particular, with respect to the suit I now have against Toyota, the Department of Transportation has advised me by letter J that there is no safety standard currently in existence with respect to the crashworthiness and design safety of passenger seats. The decedent, whom I epresent, died as a result of his seat collapsing upon moderate rear end impact making it possible for his upper torso, neck and head to be whipsawed, and in turn resulting in a fatal injury to the brain stem. It is with somewhat bitter irony that I refer you to report A-4650.01, dated November 1973, issued by General Environments Corporation and prepared for the Insurance Institute for Highway Safety. That report and others like it cite over and over again that upon moderate impact from the rear, the seats of most of the foreign imports collapsed, exposing the occupant to serious and avoidable risk injury, whereas the same testing done on American makes shows a dramatically lower incidence of seat failure.

If I have been misinformed, and if there truly is a Department of Transportation safety standard concerning the crashworthiness of automobile seats, I would appreciate a copy of such standard. Also, if there is such a standard I should like to report that I have serious reason to believe that Toyota automobiles manufactured between 1973 and 1979 do not meet anyones safety standard with respect to the design of their seats, and especially the bucket seats.

I appreciate your time and attention to this letter and its intent.

Yours very truly,

BOYD, PAYND, GATES & FARTHING

Charles E. Payne

CEP:wjb

cc: Mr. James Kelly