Once you’ve been a trial lawyer for long enough, there are some consumer products you just don’t look at the same anymore, because you’ve heard about them too many times from other trial lawyers or because you’ve sat across a conference table from someone telling you about the worst thing that ever happened to their family. ATVs cause a death or two every day. Gas cans without a flame arrestor or a spill-proof lid severely burn a child under six years old every day or two. Trampolines send 275 kids and teenagers to the emergency room with serious injuries every day.
So it goes with tire failures, which cause a death or two a day, and 15-passenger vans, which have a fatal crash or two every week. Tire blowouts and tread separation are so common, and passenger vans so prone to rollovers, that, when I saw the main characters in Inception get into a Ford E-Series, I instinctively thought, “they’re going to roll it.” (Sure enough, they did, though in fairness to the van, they were being rammed.)
Last week, the National Highway Traffic Safety Administration (NHTSA) sent out a well-meaning press release warning “colleges, church groups, and other users of 15-passenger vans” to take additional precautions, because:
Recognizing that 15-passenger vans are particularly sensitive to loading, the agency warns users never to overload these vehicles under any circumstances. NHTSA research shows overloading 15-passenger vans both increases rollover risk and makes the vehicle more unstable in any handling maneuvers.
Tire pressure can vary on front and back tires that are used for 15-passenger vans. This is why the agency urges vehicle users to make certain the vans have appropriately-sized and load rated tires that are properly inflated before every trip. Taking into account the fact that tires degrade over time, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.
It’s those last two sentences that drive trial lawyers like me bonkers. The NHTSA knows that’s a grossly inadequate warning and knows most consumers have no idea about the real danger of tire failure or how to prevent it. Old tires and their propensity towards tread separation and blowout are a simple scientific fact, but the $30 billion tire industry, the NHTSA, and some courts have all resisted accepting it for years.
Nudged forward by the Bridgestone / Ford Explorer tragedies, the NHTSA in August 2007 finally published its report on tire aging and accidents, but frustratingly concluded only that “NHTSA’s research supports the conclusion that the age of a tire, along with factors such as average air temperature and inflation, plays some role in the likelihood of its failure,” without making any real conclusions. They’ve initiated a follow-up study.
The car manufacturers, though, have long since distanced themselves from the idea that tires can last forever, or that the only time that matters is “time in service.” The ten year expiration date referenced by the NHTSA is what the tire manufacturers begrudgingly admit to, but the real figure from the car manufacturers is six years. Ford, Chrysler, Nissan, BMW, Mercedes-Benz, Volkswagen and Toyota all say six years. I don’t know of any car manufacturer willing to recommend a longer date.
Why not? Because they know tires after six years, particularly in hot climates, will oxidize and break down, so that the glue holding the tire together starts to degrade, making tread separation far more likely. Car companies may or may not make safety job #1, but they sure do respond to lawsuits, and the more times they get hit with multi-million dollar verdicts for knowingly having defective tires on their vehicles, the more likely they are to do something about it.
Yet, apparently there haven’t been enough lawsuits, because there are still tens of thousands of expired and dangerous tires out there. As Rich Newsome noted while discussing a Yokohama recall, the danger is a matter of high-school chemistry:
I remember when I finally had the chance to take the corporate representative’s deposition who had been designated by the manufacturer to talk about why the tire failed. The guy was an engineer and had some background in polymer chemistry. Having been briefed by my expert, we started to talk about rubber, and how natural rubber consists of long molecules that make it springy. He admitted – surprisingly – that the problem with rubber molecules is that oxygen makes them break apart.
It’s sort of like when I was a kid, we used to play with wooden paddle toys that had a rubber band attached to a red ball. I remember leaving one of those out outside on our driveway in front of our house for a few days. The hot summer Florida sun baked the rubber band over the course of several days, and when I picked it up and tried to use the paddleball toy, the rubber band snapped. The reason the rubber band broke was because heat and oxygen had broken down the molecules in the rubber band making it brittle. This process is called oxidation, which rubber manufacturers have known about for almost as long as they have been making rubber. The problem is, the manufacturers never tell consumers that this same process brakes down the rubber in tires and leads to tread separations as tires get older, especially in hot parts of the country. That’s why every year here in Florida, when it starts to get hot in spring and summer, we have hundreds and hundreds of tread separations on our highways. Many of which cause major crashes.
Indeed, the NHTSA’s own review of insurance claims data found that insurers “reported that 27 percent of its policy holders are from Texas, California, Louisiana, Florida, and Arizona, but 77 percent of the tire claims came from these states and 84 percent of these were for tires over 6 years old.” It’s no surprise that the hot, large states have a disproportionate share of tire failures, and that tires over 6 years old account for more than 4 in 5 tire claims, but still the NHTSA says they need more time and research.
Outside of the United States, though, nobody seriously questions that tires degrade over time: the British Rubber Manufacturers Association “strongly recommends that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.” Here in the United States, though, high-school chemistry is treated by some courts as junk science.
Interestingly, in many states the core court opinions in the scientific basis for expert testimony come from tread separation cases. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)(applying Daubert to minivan tread separation and tire blowout case, and affirming ridiculous trial court opinion that a mechanical engineer with an MSME who had worked in polyesters at Celanese Plastics, tire design and failure testing at Michelin, and then accident reconstruction and tire failure at S.E.A. Inc. was incompetent to testify about tire failures); Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d 797 (Texas 2006)(overturning $11 million verdict in a minivan tire tread separation lawsuit by bending over backwards to throw out the testimony of a former Dunlop engineer who used to examine tires that failed for the company, a professional engineer with degrees in metallurgy and engineering, and a polymer scientist, all of whom testified for the plaintiff that the tire was defectively manufactured with wax in the rubber compound).
The problem isn’t trivial; it’s not like the tire tread falls off and you slowly and safely pull off the road. As the NHTSA found in simulations of tire separations, even a driver who knows they’re going to experience a tread separation usually can’t control their vehicle when it happens, particularly if the tread separation involves one of the rear tires.
As I’ve mentioned before, warning labels tend to get the tort reform crowd into a huff, even though they tend to cost almost nothing and save lives. And that’s the chief problem with old tires.
A few days ago at the grocery store I bought a bottle of water, which had an easy-to-read expiration date on the top, and a bottle of shampoo, which had an RFID radio tag stuck on the side to prevent shoplifting. You know what happens if I drink the bottle of water after it expires? Nothing. You know how much that bottle of shampoo cost, so that it was worth putting an RFID tag on it? Less than five bucks.
But if I want to figure out how old my tires are or if they’ve been recalled, I have to decode the DOT number, and even then I can’t be sure what decade the tire was made in — the best advice for that again comes from the British Tyre Manufacturers’ Association, which tells you to look for cracks in the sideway or tread distortion. The NHTSA website tells you, in contrast, “there is no standard test to assess the serviceability of a tire,” thereby discouraging consumers from even looking for problems.
If I want to know if a tire is recalled, I have to click through the NHTSA website. The vast majority of tires are not properly registered, and so it’s little wonder that 4 in 5 recalled tires are not actually returned and so stay on the road. If manufacturers did nothing more than stick cheap RFIDs in their tires, mechanics could figure out if any of a car’s tires were recalled in one quick sweep with a cheap RFID transmitter.
You would think that tire manufacturers, even if they weren’t looking out for customer safety, would at least want consumers to buy more new tires, and so would voluntarily put expiration dates on tires, and would ask that the NHTSA make their competitors do it, too. But the invisible hand of the free market often has a trick up its sleeve, and here that’s the inventory: hundreds of thousands of old tires that the manufacturers and retailers would rather sell, even at a loss, than discard. So they keep selling these old, brittle, decaying tires.
I’m certainly not the first to complain about these issues, which Sean Kane, among others, has been hammering on for years, but the fact that it’s still a problem with no solution in sight is a disgrace.