July 27th, 2019
For those who thought the long-running Takata defective airbag saga was over, think again. The automotive giant once again asked the National Traffic Safety Administration to cancel a planned recall of over six million trucks and SUVs.
GM’s lawyers first made such a request in 2016, less than a year after it originally agreed to replace the Takata airbags in these vehicles. The company claims that, in a laboratory test of over 4,000 supposedly defective airbags, none of them exploded. Nevertheless, Jason Levine, executive director of the Center for Auto Safety, urged NHTSA to order the recall as planned.
This recall, which would cost GM an estimated $1.5 billion, would affect Silverado and Sierra light-duty pickups from 2010-2013, 2010-14 Chevrolet Tahoe and Suburban SUVs, the 2010-14 Cadillac Escalade SUV, 2010-2014 Chevrolet Silverado and GMC Sierra HD models, and the 2010-14 GMC Yukon. Others may be affected as well.
Takata Airbags and Manufacturing Defects
“[I]f we go forward with this, somebody will be killed.” When Takata engineer Mark Lillie made this prediction in the late 1990s, he probably did not know it would prove to be 100 percent accurate. In fact, defective Takata airbags have killed over a dozen people, seriously injured thousands of others, and driven one of the largest companies in the world into bankruptcy.
Airbags have saved millions of lives over the years. To be effective, they must rapidly inflate in a fraction of a second after a serious crash. Too slow, and the airbag is useless. Too fast, and the airbag explodes.
So, the propellant is absolutely critical. For many years, Takata used a chemical propellant called tetrazole (trade name Envirosure). It was stable and effective. It was also rare and expensive. In the mid 1990s, when Takata’s business began booming, company executives felt they needed to look elsewhere.
They eventually sanctioned the use of ammonium nitrate, the same chemical that domestic terrorist Timothy McVeigh used to build the Oklahoma City truck bomb. This chemical was unstable in two key ways.
First, it could cause airbags to explode rather than inflate rapidly. The resulting explosion tore apart the steering column, showering drivers with large chunks of shrapnel. Second, ammonium nitrate is also environmentally unstable. When exposed to high heat and humidity (does that sound like a Houston summer?), ammonium nitrate becomes more prone to explosion, even after low-speed impacts that should not cause the airbag to inflate.
The ammonium nitrate replacement is an example of a manufacturing defect. Airbags themselves are safe. English inventors Harold Round & Arthur Parrott, who were both dentists, filed the first patent in 1919. Ironically, the first U.S.-made car with an airbag was the 1973 Impala, a General Motors product.
Dangerous Products and Design Defects
Other products are defective from the moment they leave the drawing board. Some people may remember the 1970s Ford Pinto. This episode is a textbook example of a design defect.
Facing intense competition from small and cheap GM cars as well as small and cheap Japanese imports, Ford executives directed engineers to design and build a car which “did not cost a dime over $2,000 and did not weigh an ounce over 2,000 pounds.” They came up with the Pinto.
To save weight, designers placed the Pinto’s gas tank outside the rear axle. As a result, it easily ruptured, even in relatively low-speed collisions. All it took was one spark, and the explosive gasoline would consume everything it touched.
Although there is still some dispute, Ford executives supposedly knew about the design defect, yet they refused to correct it. Allegedly, an accountant calculated that the cost of repairing the vehicles outweighed the cost of legal fees. In other words, it was cheaper to pay wrongful death settlements than to make Pintos safe.
Insurance Company Defenses
In both design and manufacturing defect claims, manufacturers are strictly liable for damages. Victim/plaintiffs need only prove causation. Additionally, due to the brazen misbehavior of companies like Takata and Ford, many juries award substantial punitive damages in these cases.
This money is on top of compensatory damages for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
However, “strict liability” does not always mean “automatic win.” There are some available defenses, mostly the dreaded statute of repose.
Texas is one of the few states with a statute of repose in defective product cases. This law bars damage claims which are brought more than fifteen years after the product was originally sold. There are some ways to get around the statute of repose, mostly by using the discovery rule. But these matters are extremely complex. Talk to a defective auto attorney to learn more.
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Robert Simmons is a graduate of The University of Houston Law Center, Houston, Texas, 1966. He has been practicing law in Texas since 1996. He is a founding member and managing shareholder of Simmons and Fletcher, P.C. He has been recognized as a Top Lawyer by H Texas Magazine in 2014 and 2015.