For years the automotive manufactures have touted airbags as soft pillows that will greatly reduce injuries and deaths on our nation’s highways.  To be sure airbags have reduced deaths and injuries; however, these “lifesavers” have come at a high cost.  Due to the manufacturers’ decisions to rush airbags into our cars, they have in fact knowingly installed dangerously defective airbags into many of the vehicles on the road.  In particular, these airbags are extremely dangerous to children and small adults who are unfortunate enough to be sitting in front of an airbag when it deploys.

In theory, airbags are supposed to be fully inflated before the passenger contacts them during a crash.  Serious injuries occur when airbags, which can travel at speeds up to 200 mph, hit occupants prior to full inflation.  Some airbags "punch out" of their storage compartments with such great force that they can throw a child into the rear seat of a car.  Airbags have also been known to deploy late in low speed accidents, permitting front seat occupants to move into the zone of deployment before the bag fully deploys, thereby resulting in very serious injuries or death.  This article will examine how airbags work, their history, the theories of defect, alternative designs, and what to do if you are confronted with a potential airbag case.

How An Airbag Works

Airbags inflate, or deploy, quickly -- faster than the blink of an eye.  Imagine taking one second and splitting it into one thousand parts.  In the first 15 to 20 milliseconds, air bag sensors detect the crash and then send an electrical signal to fire the airbags.  Typically a squib, which is a small explosive device, ignites a propellant, usually sodium azide.  The azide burns with tremendous speed, generating nitrogen, which inflates the airbags.  Within 45 to 55 milliseconds the airbag is supposed to be fully inflated.  Within 75 to 80 milliseconds, the airbag is deflated and the event is over.

If designed properly, airbags do save lives and guard against severe injuries in high speed collisions.  However, the speed with which airbags inflate generates tremendous forces.  Passengers, especially children and small adults, in the way of an improperly designed airbag can be killed or significantly injured. Unnecessary injuries also occur when airbags inflate in relatively minor crashes when they are not needed.

History of Airbags

Airbag patents go back to the 1950s.  In the 1970s, both General Motors and Ford placed airbags into a small fleet of automobiles.  Generally, the airbags performed well.  Only one death was attributed to the airbags and, even in that instance, there was a question as to whether the airbag was the cause of injury.  Surprisingly, these 1970s airbags were in many respects more advanced than ones used in the 1990s.  They used adjustable inflators, which are only now coming back into use.

Throughout the 1980s, manufacturers resisted installing airbags, feeling that safety did not sell vehicles and worrying about costs.   They told the government that airbags would kill occupants, especially children.  While resisting government regulations, manufacturers also halted most airbag research and development activity for over a decade.

Then, in the late 1980s, Chrysler reversed itself and started installing airbags.  Lee Iaccoca went on television in the early 1990s and told the public he had been wrong and had now realized that airbags save lives.  The race was on.  Suddenly, safety was a selling point.  Manufacturers were concerned that they would lose sales if they did not have airbags.  By 1992, most manufacturers had airbags on the driver side and by the mid-l990s most had airbags on the passenger side as well.  TV advertisements showed airbags deploying in a soft billowing fashion.

Slowly, the terrible truth about airbags began to emerge.  The dire predictions of the manufacturers to the government in the 1980s, but concealed from the public in the 1990s, proved true.  Airbags as they had been designed in the 1980's and 1990's, could kill occupants, especially children and smaller women.  By late 1996, the government and manufacturers were compelled to publicly announce that airbags could be dangerous.

Auto Manufacturers’ Negligence

Manufacturers have only themselves to blame for the dangerousness of airbags.  After years of stalling, in their rush to install airbags, adequate testing was sacrificed.  Typically, manufacturers were content to install an airbag if it met one and only one qualification: compliance with a "minimum" government regulation known as Federal Motor Vehicle Safety Standard (FMVSS) 208.  This standard required that manufacturers certify their airbags would not inflict certain “injuries” to a 5’9” dummy (both belted and unbelted) in a crash test into a solid barrier at speeds up to 30 mph and frontal angles up to 30 degrees.

The problem with the manufacturers’ approach is that the regulation, by its own language and by the clear intent of the law, is a “minimum” standard.  Repeatedly, the government warned manufacturers that FMVSS 208 did not mandate any particular design.  Manufacturers were encouraged to do full testing and to implement designs that would protect the full range of vehicle occupant ages, shapes and sizes.

For years, automobile engineers recommended that manufacturers do more than the minimum federal requirement to test using 5’9” dummies with the seat positioned in the middle of the seat track.  Cars are occupied not just by average sized male adults, but by men, women and children of all shapes and sizes.  Further, occupants do not always sit as the federal standard prescribed and children, in particular, will wiggle out of seat belts and can be close to the dashboard when airbags deploy.  Manufacturers were encouraged to test their vehicles with female and child-size dummies, and to do so-called “out-of-position” testing.  Largely, manufacturers simply ignored this advice, wishing to place profits far ahead of safety.  The few tests that manufacturers did conduct with "out-of-position" dummies confirmed that airbags could be dangerous.

Safer Airbags

Today, there is a rush to design “smart” airbags.  Virtually all of the proposed solutions have, in fact, already been used in a small number of vehicles or are  technologically feasible.  Safer airbag designs include the following:

1.       Higher Deployment Thresholds

Most airbags are set to deploy in crashes between 6 and 12 miles per hour.  This is far too low.  Numerous studies have shown that an airbag is not needed unless a crash is at least 18 mph.  BMW, Mercedes, and Volvo have long had systems that deploy an airbag at 18 mph if the occupant is seat belted.

2.       Less Aggressive Airbags

In 1998, manufacturers introduced so-called “second generation” airbags.  To the public, this sounded like a new design.  In fact, all that manufacturers did was to reduce the amount of propellant in their design.  Virtually nothing else changed.  Tests showed that these depowered bags still passed the version of FMVSS 208 that manufacturers blamed for overly aggressive airbags.  In fact, nothing prevented manufacturers from utilizing these less aggressive airbags from the beginning.

3.       Tethers

Tethers are internal straps that cost only about $3.00.  They hold the airbag back from intruding too far into the occupant compartment, decreasing the chance of injury.  Tethers are an easy fix, yet many airbags do not have them.

4.       Adjustable Inflators

In the 1970s, the General Motors fleet with airbags had adjustable inflators.  In less severe collisions, the airbag inflated less quickly than it did in more severe collisions. This same design is now one of the primary designs being touted as a smart airbag.  There is no good reason that adjustable inflators could not have been used in every vehicle.

5.      Better Sensors

Many airbag related injuries are directly due to sensors.  Many are too sensitive or unable to distinguish between a minor event, such as going over a curb, and a significant event, such as a head-on collision.  Sensors vary in many ways: some are mechanical, others are electrical, and still others a combination of the two.  Also, the number of sensors and their placement vary widely within the industry.  Bad sensors can delay too long the firing of an airbag or deploy them prematurely.

6.       Suppression Systems

People, and not crash dummies, sit in vehicles.  They move.  A short driver may sit close to the steering wheel, or a passenger may bend over to pick up something or lean over to tune the radio.  A passenger who bends over comes perilously close to the airbag.  Manufacturers know this and are aware of several systems designed to suppress the bag from firing.  It is recognized in the industry that an occupant close to an airbag is most likely to be killed or to sustain serious injuries.  Thus, some manufacturers have placed weight sensors in seats or in the floor pan.  Weight sensors help to determine if a child is in the seat or is standing close to the air bag.  Other manufacturers have developed “bias” flaps.  These are airbags designed to detect if an occupant is in the way of the deploying airbag. In that case, the bag redirects its forces to the side rather than directly into the occupant. Still other makers are exploring the use of infrared technology to detect people who are "out of position."

7.       Better Seat Belt Systems

An airbag is only one part of a vehicle’s restraint system, and are intended to supplement seat belts.  However, seat belts may be part of the problem.  Many allow the occupant to move too far forward and into the path of the deploying airbag.  Recognizing this, many vehicles have better seat belt systems such as those with pretensioners.  Pretensioners are devices that fire at the same time as the airbag, pulling the slack out of the seat belt and preventing excessive forward movement.   Pretensioners are widely available in Europe and have been used in numerous vehicles in the United States for years.

The Initial Preparation of An Airbag Case

There are three issues which need to be addressed early in an airbag case or, for that matter, in any crashworthiness case if it is going to be adequately prepared.  The vehicle is the most important piece of evidence.  All experts will base their opinions on the witness marks both inside and outside the vehicle.  Without the car, truck, etc., it is virtually impossible to pursue an airbag case.  Therefore first, and foremost, the vehicle must be located and secured.  Though it is theoretically possible to pursue an airbag case without having possession of the vehicle, it is extremely difficult to do so.  Numerous cases that had potential merit simply were not viable due to the absence of the vehicle.  Further, it is strongly suggested that if possible the vehicle should be stored inside.  When vehicles are stored outside they tend to deteriorate rapidly and are subject to vandalism.

Another very important issue related to the preservation of the vehicle is spoliation of evidence.  Sometimes attorneys or inexperienced “experts” will remove items from the car before the defendant has had a chance to inspect it.  Usually this is done to more clearly inspect the seat belts, airbags, seats, etc., or to guarantee that no one tampers with them.  However, defendants are claiming that removal of vehicle parts alters the evidence and is a form of spoliation.  Of course this is a very serious charge and an unfortunate and deadly diversion from the true focus of the case.  Defendants love to have plaintiffs defending this type of activity.  Furthermore it just looks bad.  Unfortunately, defendants are sometimes right in their claims that removal of vehicle parts do significantly alter the evidence.  Therefore, do not do it!  If you feel you must remove parts, think about it very carefully, and then give the defendants advanced notice of your plan so their representatives can be present while the parts are being removed.

Second, airbag cases are very fact intensive, as are many other types of crashworthiness cases.  Such issues as whether or not the occupants had on their belts at the time of the accident, whether or not they were using them properly, the speed of the respective vehicles involved, etc. must be determined as soon as possible.  Therefore, it is of absolute necessity that statements be taken of all witnesses connected with the accident as close to the time of the accident as humanly possible.  Use of alcohol or drugs has become a very serious issue in these cases.  Defendants have come up with creative ways (i.e. injury enhancement) of getting alcohol or drug use into evidence even though such use is totally irrelevant in many crashworthiness cases.  If alcohol or drugs are involved in your case, it is a warning flag that a good case may become very risky.  Some plaintiff’s attorneys, and even experts, will not work on a case if alcohol is involved, therefore determining whether it is present in your case early is extremely important.

Third, it is important that the experts become involved in the case as soon as practical.  There are five primary areas where experts can be used in these cases.  First, an accident reconstructionist must be retained to determine the gross movements of the vehicle(s) during the accident, as well as the forces that acted upon the vehicle(s) during the accident.  Then  an automotive expert should be brought in to analyze the design and potential defects in the aspect of the car with which you are concerned.  Very importantly, an injury causation expert, or sometimes called a biomechanical expert, must be retained to determine how the bodies of the occupants moved during the collision, and more importantly what caused their injuries and what could have prevented the injuries.  In many cases, a human factors expert’s involvement will be necessary to discuss failure-to-warn issues which are very significant in airbag cases, especially regarding the situation of children in the front seat.  And lastly, a restraint historian’s testimony may be necessary to develop the history of airbags and seat belts.

Several of the above areas of expertise can be covered by one expert, but be careful of over loading an expert and turning him into a “jack of all trades.”  This can be self-defeating for obvious reasons.  It is extremely important when using several experts that they understand not only their own role in the case, but also the role and testimony of the other experts.  It is good practice to bring all the experts together to discuss the case for a day or two, allowing them to understand the impact of their testimony upon each of their fellow experts and how it fits within the case as a whole.

Research

The automotive companies will rarely provide the information in discovery needed to complete an airbag case.  It is therefore important for plaintiffs to do as much of their own research as possible.  There is a great deal of information on alternative designs contained in patents that is useful in an airbag case.  There are also a number of very damaging comments made by defendants in patent applications by their employees.  In most situations, there will also be articles and technical journals supporting the points needed to make your case. 

Above all, it is important to network with other attorneys.  Most attorneys are very cooperative and helpful when asked for assistance.  Some of the most useful information that can be obtained in airbag cases will come from talking with attorneys who are pursuing or have pursued similar cases on their own.

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