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For Alison Sanders, the calculus of automobile safety and the vagaries of chance collided as dusk approached on a Sunday in October of 1995.
Just a half-mile from her father’s home in suburban Baltimore, the 7-year-old sat on the front passenger side of a brand-new Dodge Caravan. Her two brothers, strapped in the seat behind, clamored to hear how the Washington Redskins were faring. That’s when Alison’s dad made a fatal error: Robert Sanders leaned over the steering wheel to tune in the football game, taking his eyes off the road as he fiddled with the radio. The Caravan rolled through a red light and smacked into a Chevy Lumina.
Federal investigators later pegged the impact speed of Sanders’ Caravan at no more than 11 miles per hour. Not the kind of accident likely to end in tragedy.
Milliseconds after the collision came the shotgun sound of two air bags deploying at speeds approaching 200 miles per hour. When Sanders looked to his right, he saw Alison slumped over, unconscious. She died the next day from massive brain injury, the victim of blunder, bureaucracy and corporate arithmetic.
The blunder: Robert Sanders admits he bears blame for his daughter’s death the mistake he made by taking his eyes from the road is one he’ll suffer for the rest of his life.
The bureaucracy: In retrospect, there is little doubt the federal government agency responsible for traffic safety helped conceal the fact that air bags posed a threat to children and waited nearly five years before mandating that an explicit warning be placed in vehicles. In this case, the slow grinding of bureaucratic wheels had deadly consequences.
The math: Court documents, internal Chrysler memoranda and correspondence on file with government agencies reveal that the company, like other automakers, had weighed the potential dangers posed by air bags. In 1991, according to federal documents, General Motors revealed during a secret meeting hosted by federal regulators that air bags could cause as many as 200 deaths per year.
Automakers maintain they share no blame in the carnage, claiming that government mandates forced them to install air bags that deployed with sometimes fatal force. But in the case of the Chrysler minivans, passenger-side air bags were installed as standard equipment four years before being required meaning the company could have chosen to delay installation and used the time to help develop safer systems. To not do so was a calculated decision by Chrysler.
"I think we knew we were going to have these problems," Chrysler’s Randy Edwards, the company’s manager of vehicle safety compliance, acknowledged in a 1996 court deposition, "but we were hoping to a small degree."
Failure to warn
By now, government-mandated warnings and media attention have spread the word: Children should never ride in the front seat of cars that have passenger-side air bags. But that awareness came after children started dying in what the industry calls "field tests," which is another way of saying real-world accidents.
During the late 1980s and much of the ’90s, when air bags were still being introduced on a mass scale, the general public remained in the dark about how they worked and the dangers they posed. Slow-motion TV commercials that featured air bags deploying like some feather-soft pillow left an indelible and fatally false impression.
In March 1997, the Harvard Center for Risk Analysis released a study showing that a majority of Americans wrongly believed air bags saved more children than they killed, that the risk air bags posed to children was that of suffocation, and that it was safe for children under the age of 12 to ride in the front seat of air bag-equipped vehicles.
"If we can be faulted anywhere," Chrysler safety manager Ronald Zarowitz said in 1996, "it’s that we haven’t educated the nation that the air bag is not some kind of magic pillow."
Proponents of air bags point out that the devices save many more lives than they take. They’re right: Since 1990, according to the National Highway Traffic Safety Administration (NHTSA), 4,230 lives have been saved, compared with the 135 deaths attributed to air bags. Statistically, that works out to about 31 lives spared for every one sacrificed.
"Its like going to Las Vegas and gambling," says Gerald Nyquist, a former automotive-safety researcher who studied air-bag technology starting in the early 1970s at Wayne State University. "You play the odds and look for a positive payoff. You can’t protect everybody from everything.
"And sometimes you are going to have people injured who would not have been injured if a restraint system had not been there. But I’ll take a modern air bag in front of me at any time."
The calculation changes, however, when children are considered separately.
According to NHTSA, as of May 1 of this year air bags had killed 76 children and saved none. Twelve of those children, including Alison Sanders, were in Chrysler minivans, as were six more who sustained catastrophic injuries such as fractured skulls and broken necks. In every case, according to federal investigators, it was the air bag and not the severity of the crash that killed or maimed. And the death toll keeps mounting. In a March 26 accident that wasn’t reflected in NHTSA’s May figures, a 2-year-old Texas girl was decapitated by an air bag while riding in the front seat of a Plymouth Voyager involved in a low-speed crash.
That so many kids have been killed or injured by a safety device in one make of vehicle can be attributed, at least in part, to the success of Dodge Caravans and Plymouth Voyagers. As the ads say, these are the most popular family vehicles ever put on the market. But critics of Chrysler argue that one reason so many children were riding in those minivans is precisely because they had air bags. In November 1993, Chrysler became the first automaker to make passenger-side air bags standard equipment on minivans a feature the company touted as part of a high-profile marketing campaign that targeted parents concerned about the safety of their children. Those advertisements are now evidence in the lawsuit Sanders and his ex-wife Elizabeth have filed against Chrysler.
It is one of at least 13 civil actions taken by parents of children killed or injured by air bags in Chrysler-made minivans. Unlike most of the other cases, however, the Sanders suit isn’t going to disappear in the quiet of an out-of-court settlement. Robert Sanders wants the resonance of a public trial. And so later this year, a Wayne County jury is expected to determine whether what is now DaimlerChrysler will be assigned a share of the guilt in Alison Sanders’ death.
That alone makes this an unusual case. Anxious to avoid publicized trials that could raise questions about whether they put profits above children’s safety, car companies have been providing large financial settlements to the families of kids killed or injured by air bags. In return, the automakers strike confidentiality agreements that conceal both the amounts paid and the reams of evidence collected during the discovery process. But Sanders refuses to let his case end behind closed doors.
DaimlerChrysler lawyers insist they are ready for Sanders. Police reports and an eyewitness will be used to convince the jury the accident in which Alison died was more severe than the "fender bender" Sanders describes.
They will also question his motivation, describing him as a man with a vendetta fueled by both greed and an inability to accept his own guilt.
"Mr. Sanders has a financial motive and a psychological motive," Jay Cooney, Chrysler’s lead spokesperson on air-bag issues, says. "I don’t think Mr. Sanders is willing to accept responsibility that he ran a red light, and that he failed to ensure his daughter was properly belted."
Sanders discounts any financial motive: "If that were the case, I’d settle now and take the cash. By going before a jury no matter how strong you think your case is you always run the risk of losing and coming away with nothing. That’s not what’s important to me. What’s important is that what they did is finally exposed."
As for his guilt, it is an issue Sanders can’t escape. His admission is on record with Baltimore police, who interviewed him after the accident:
"It’s my fault. God gave me that little girl to take care of, and I ran the red light. God, help me. God, take care of that little girl I am guilty."
The police report containing that statement goes on to state that in the hours after the collision Sanders "was not rational and had worked himself into such a state that he needed sedation." The following morning he committed himself to Sheppard Pratt Hospital, where he spent the next three weeks battling thoughts of suicide. It was while he was in the hospital that Sanders learned that it was the air bag in his 3-week-old Caravan that killed Alison.
Within weeks of Alison’s death, the National Transportation Safety Board announced that air bags were apparently killing children and the elderly in disproportionate numbers. For the first time, headlines in newspapers across the country began warning of the danger.
"If only the accident hadn’t happened when it did," Sanders says, "I might have seen those stories and known not to let Alison ride in front."
Following his release from the hospital, Sanders, then an attorney with the Baltimore firm Shapiro and Olander, returned to work, but questions about his daughter’s death continued to haunt him. Energy that should have been spent working on clients’ cases was committed to researching the air-bag issue. Within a year, his partners had grown concerned at the amount of time Sanders spent feeding his obsession.
"It seemed so counterintuitive to me, that a safety device would end up killing someone in an accident where no one would have been hurt otherwise," Sanders says. "I was hungry for answers."
Sanders left the law firm and established the group Parents for Safer Air Bags, immersing himself in the issue as he transformed into an activist seeking both information and change.
He ended up getting both. In 1996, after Sanders and other members of his group helped focus media attention on the problem, federal regulators ordered that new cars carry labels that explicitly warn parents that air bags could kill children (see "Evolution of a Warning," box at right).
But Sanders’ work is not finished. He and other safety advocates continue to argue that the air bags in certain model vehicles are so dangerous they should be classified as defective and replaced.
Their claim has been rebuffed by NHTSA, but in the case of Chrysler it could get another look. This May, NHTSA announced that crash tests using dummies the size of a small woman revealed the minivans’ passenger-side air bags may be excessively dangerous even to passengers who are fully belted and properly positioned.
DaimlerChrysler officials say the tests are flawed and that regulators have unfairly "singled out" the company for scrutiny.
For Sanders, the tests are just one more reason to continue his crusade.
"I’ve carried my dying child in my arms," he says. "And I’ve also looked at evidence. I know how horrible the facts are, and I don’t think anybody who contemplates those facts can go about business as usual."
"How would you like to pay $150 extra for a device to protect passengers in the front seat in the event of an accident, and then have it be responsible for the death of your child in a minor accident in which no one else was injured?"
The question is eerily similar to that posed by Robert Sanders. But it was asked 25 years before Alison Sanders’ death, by S.L. Terry, then Chrysler’s vice president of engineering, in a 1970 meeting with John Volpe, then the U.S. secretary of transportation.
First patented in the early 1950s, air bags continued to pose daunting engineering challenges two decades later. From the start, automakers were concerned that a protective air cushion that deploys in crashes could explode into a liability nightmare.
"The air bag is a complex amalgam of electrical, chemical and mechanical technology which defies attempts to make it 100 percent reliable even if we could apply NASA levels of quality control," wrote Chrysler to NHTSA in 1978.
Lee Iacocca, head of the Chrysler Corp. from 1978-92, quantified the problem in his 1984 autobiography.
"To be fair," Iacocca wrote, "the technology is now at the point where air bags are highly reliable. Let’s say they work in 99.99 percent of the cases. If all cars were equipped with air bags, and if, as now, there were 150 million cars on the road, that means that .01 percent of the air bags would not be reliable. And that means that about 15,000 times a year which comes to about 40 times a day somebody’s air bag would malfunction. If only 1 percent of those people sued, that would still be a pretty expensive proposition."
Particularly vexing was the problem of "out-of-position" children the technical term applied to situations in which kids act like, well, kids. It means a child leaning too close to the dashboard is in extreme danger of being killed or maimed by the sheer force of a deploying air bag.
In 1969, research conducted by the Aeromedical Research Laboratory at Holloman Air Force Base in New Mexico produced results that caught the attention of the Big Three automakers.
In one internal memo, a Chrysler engineer reported that tests on baboons indicated that the danger air bags pose to children "is a very serious problem that must be resolved for the inflatable restraint. Having a child directly in front of the bag when it inflates could prove fatal."
In another early test, conducted by Nyquist and his fellow researchers at Wayne State in the early 1970s, a baboon used because the animal’s size and internal organ structure are similar to that of a child was placed standing behind the dashboard of a test vehicle. The air bag’s force blasted the animal into the car’s back seat. Other tests bore out the hazard.
Complicating matters even more was something called Federal Motor Vehicle Safety Standard 208. Introduced in 1970 as part of a series of regulations inspired by safety advocate Ralph Nader’s groundbreaking work on auto safety, the rule required that manufacturers devise "passive" restraint systems that would protect an unbelted, average-size male in a 30 mph crash.
The problem for engineers was coming up with ways to protect not only a 5-foot-9, 165-pound man, but also everyone from elderly passengers to small women to young children.
By the early 1970s, General Motors had developed an innovative solution to the problem. Using an electromechanical sensor, GM devised a bag with a "dual-stage" inflator that deployed with less force in minor crashes and at a higher speed in more severe collisions. The system offered greater protection for at-risk passengers such as women and children by reducing the likelihood they would be injured by the air bag in minor collisions.
Between 1973 and 1976, GM sold more than 10,000 cars with the air bags. Its system, by all accounts, worked extremely well. But because the systems were being installed in relatively few vehicles, the cost of producing them about $8,000 per car was prohibitive. "We would have been better off selling the air bags and giving away the cars," said one GM executive quoted in Iacocca’s book. Economics compelled the automaker to stop offering air bags by the end of 1976.
Cost was also a concern at Ford Motor Co. in the early ’70s, when Iacocca was its president. Volpe, the transportation secretary, was enthusiastically pushing the air bags. Iacocca and his boss, Henry Ford II, went straight to the top to address the situation.
During a White House meeting in 1971, the same taping system that proved Richard Nixon’s involvement in the Watergate cover-up also recorded Iacocca railing about air bags to the president. Federal safety regulations, Iacocca argued, were putting America’s Big Three automakers at a competitive disadvantage. "The Japs are in the wings, ready to eat us alive," he warned.
Nixon was convinced. Calling air bags "these damn gadgets," he decreed that "the seat belt is enough." He dispatched aide John Ehrlichman to convince Volpe to delay mandating air bags and other automatic passenger restraints.
Iacocca continued to proselytize against air bags for the next decade.
Crash tests showed he had cause for concern. Throughout the 1970s and ’80s, researchers continued to find that air bags posed a danger, particularly for small women and children.
In the late ’80s, however, Iacocca made an abrupt U-turn. For years he had insisted that style, not safety, sold cars. But when customers began putting increased emphasis on safety, Iacocca quickly became the country’s highest-profile air-bag advocate, proclaiming in one Chrysler ad campaign, "Who says you can’t teach an old dog new tricks?"
In 1988 Chrysler became the first automaker to feature driver-side air bags as standard equipment on all its passenger cars. "For the first time in my career," Iacocca stated in the ad, "I decided not to give the customer a choice."
Three years later, the maker of the wildly successful Caravan and Voyager minivans which, along with light trucks, were subject to different federal safety regulations than passenger cars offered air bags as standard equipment on the driver’s side. In 1994, Chrysler became the first automaker to include air bags as standard equipment on the passenger side of all its minivans, beating the competition by at least two years. Safety advocates applauded and the automaker won awards not to mention sales for taking the lead.
There was, however, a problem.
It has to do with the question Robert Sanders wants to hear the charismatic former CEO of Chrysler answer under oath.
Back in 1988, full-page ads depicting Iacocca trumpeted the popular executive’s conversion. "I had my doubts about air bags," the ads quoted him as saying, "but today’s new technology made me a believer."
Sanders’ question is: "What technology did Chrysler develop that solved the out-of-position child problem?"
Houston attorney Larry Boyd posed a similar query to Chrysler safety specialist Howard Willson during a sworn deposition in a Texas case that has since been settled out of court:
Boyd: Was it your understanding in 1972 that regardless of whether a child was belted or unbelted, that if their head was in the path of a deploying air bag, that it was likely to result in a form of brain or neck injury?
Willson: Yes, it was my understanding.
Boyd: And was that your knowledge in 1993, that if a child’s head was in the path of a deploying air bag, whether that child was belted or unbelted, that they were likely to suffer a form of brain or neck injury?
Boyd: So there was nothing different about the air bags in ’93 and the air bags in 1972 with regard to the potential brain injury or neck injury to a child if their head was in the path of a deploying air bag?
Willson: Not that I recall.
In an interview, DaimlerChrysler attorney Karl Lukens says the difference between the 1970s and the 1990s was a dramatic increase in seat-belt use.
When children are fully buckled up and properly seated, he says, air bags pose no danger.
But is it reasonable to expect that children are always going to ride with their backs against the seat, even if properly belted? What about leaning forward to adjust the radio or reaching for something in the glove compartment, acts that automatically bring a person "out of position" and dangerously close to the air bag?
According to accident reports, Alison Sanders was apparently wearing her lap belt but had slipped off her shoulder strap.
"Something like that shouldn’t mean a person deserves a death sentence," says Wolfgang Mueller, a Detroit lawyer who has represented the families of five children killed or permanently disabled by air bags in Chrysler minivans, including Alison Sanders.
Mueller is in a unique position to comment on the subject. He holds a master’s degree in mechanical engineering and worked at Chrysler for five years as a design and development engineer before quitting to practice law.
"I’m deposing people I used to work with," he says, with apparent satisfaction.
Mueller contends Chrysler’s emphasis on proper belting falters under scrutiny. According to NHTSA records, at least four children and two adults either killed or seriously injured by air bags in Chrysler minivans which are engineered to deploy in crashes where the impact speed is as low as 8 mph were fully belted. Three others, including Alison Sanders, were wearing lap belts. Also, in NHTSA’s recent crash tests, the female dummies sustaining neck impacts four times the allowable limit were fully belted and properly positioned.
That these problems occurred came as no shock to the people overseeing Chrysler’s air-bag programs. According to lawsuit depositions, at least three Chrysler engineers testified under oath that they weren’t surprised when air-bag deaths began to mount.
Although no deposition reflects it, officials at the NHTSA should not have been surprised either.
Keeping lawmakers in the dark
In October 1991 NHTSA’s Air Bag Technology Review Group met in Detroit with engineers from GM, Ford and Chrysler. According to a Department of Transportation memo, the traffic-safety agency revealed it was aware of a "half-dozen or so cases in which it is believed that the air bags caused the death of the occupant, as these were low-severity crashes. In these incidents, air-bag punch-out’ forces caused a ruptured aorta, rib fractures, severe myocardial contusions, etc."
GM, according to the memo, told NHTSA that air bags might kill as many as 200 people a year when fully introduced to the market.
The Detroit meeting occurred at a crucial time. After more than two decades of pressure from the insurance industry and safety advocates, Congress was on the verge of finalizing rules that would make air bags mandatory.
Five days after the meeting, Congress convened a hearing on the air-bag mandate. The contents of the Detroit discussion were not made public, and legislation setting firm deadlines for making air bags mandatory was approved.
It is at least understandable that the Big Three would be reluctant to tell lawmakers that early "field tests" were beginning to show air bags were putting some people at risk. By that time they had millions of air-bag-equipped vehicles on the road. Scaring the public off air bags would have been a financial catastrophe. What is harder to explain is why NHTSA didn’t tell Congress.
Since the early 1970s, NHTSA had been attempting to get American carmakers to install air bags. A series of deadlines were set, only to be moved back as a result of the auto industry’s ability to lobby lawmakers. But by 1991, the safety movement was on the verge of victory. Congress was, finally, ready to make air bags mandatory. At that point, setting off an alarm that could turn lawmakers and the public against a safety device might undo decades of work.
An October 1991 NHTSA memo reveals the agency’s rationale: "All the manufacturers agreed with NHTSA’s concern that the potential for bad press on these few cases could cause a lot of harm to the public’s positive perception and receptiveness to air bags."
So, like the automakers, NHTSA allowed Congress to debate the issue without knowing that some people were being killed by air bags.
On Dec. 18, 1991, President George Bush signed into law the statute mandating that automakers install air bags in 95 percent of their vehicles by the 1997 model year and in all vehicles by the 1998 model year. Light trucks and minivans, because of difficulties unique to them, were given an additional year.
The first child death attributed to an air bag occurred in April 1993 when a 6-year-old girl sustained a fatal brain injury while riding in a new Volvo 850. In late October 1995 two weeks after Alison Sanders’ death the National Transportation Safety Board began sounding the alarm that children were being killed by air bags.
The automobile industry responded by urging federal regulators to authorize use of "depowered" air bags that would deploy with less force; the downside was less protection for adults not wearing seat belts in high-speed crashes.
There was, perhaps, another option available. In October 1996, as the Big Three were lobbying NHTSA to allow for depowered bags, Stanford Hanson, the former director of air-bag engineering at Allied Signal, a high-tech supplier to the auto and aerospace industry, wrote to NHTSA administrator Ricardo Martinez to emphasize that the technology existed to equip cars with dual-stage inflators. These devices would deploy air bags with a lower level of force in less severe crashes and at a higher level in crashes that occur above a certain speed.
Such inflators "have been available for several years," Hanson wrote. "I submit that if the automotive consumer knew the facts, there would be an overwhelming demand for the best possible air-bag system."
In a sworn deposition, Hanson testified that Allied offered a dual-stage inflator to Chrysler in 1993, but that the automaker opted to use a less-expensive single-stage inflator.
"Regrettably," wrote a coalition of safety groups in a petition to NHTSA supporting the use of air bag on/off switches, "Chrysler and many of the manufacturers have continued to opt for single-deployment inflators that fire with the same force in fender benders as they do in 60 mph head-on collisions. This decision, while perhaps cost effective in the short term, is contrary to the overwhelming consensus that aggressive deployment is not needed, and indeed is dangerous, in low-speed collisions."
In 1997, NHTSA changed its regulations regarding test procedures, opening the door for automakers to begin installing depowered inflators beginning with the 1998 model year.
Caught off guard
Adrian Lund is senior vice president of research at the Insurance Institute for Highway Safety. The insurance-industry-funded group has been at the forefront of the push for air bags, a position that’s often placed it at odds with automakers. It’s safe to say Lund is no shill for the auto industry.
Even so, Lund can’t fathom the idea that engineers would put a safety device into a car knowing it may be dangerous.
"If they had known there would be a problem, they wouldn’t have put air bags in those vehicles," he says. "They wouldn’t have done this if they’d known it was going to happen. I’d say manufacturers had thought they had fixed the problem, thought they had risk to children down to an acceptable level."
Even air-bag experts weren’t prepared for what happened when children started dying, Lund contends: "I think the entire safety community underestimated the extent of the out-of-position-child problem. The problem was noted, but it was underestimated how extensive it would be." Lund, with the benefit of knowledge not readily accessible to the general public, allowed his children to ride in the front seat with an air bag in front of them. "The problem wasn’t on my radar scope," he says.
In the case of Chrysler minivans, it is easy to understand why. Beginning with the introduction of the 1994 model Caravans and Voyagers the first minivans with passenger-side air bags included as standard equipment the automaker sold the idea that air bags made vehicles safer for children.
"This year, millions of expectant parents will have something else to look forward to," touted one ad featuring diaper-clad infants. "The first minivans that meet 1998 federal car safety standards today. Making them the safest minivans in the world."
Another ad, which appeared in Parents magazine, featured a childlike crayon drawing of a smiling sun shining down on a house under the words, "When designing the Plymouth Grand Voyager, we started with this sheet of paper.
"We didn’t start with a blank sheet of paper," the pitch continues. "We already had a very clear picture of why we build Grand Voyager. Children.
"(And we’d venture to guess that’s one of the reasons you’re considering owning one.) Their safety is important."
Not important enough, however, to actually test what effect air bags might have on children riding in those minivans.
Because air bags are so complicated, they are not a one-size-fits-all device. They must be tailored specifically to meet the design characteristics of each particular model. But according to deposition testimony from Chrysler engineers, no crash testing was ever done to determine what effect air bags would have on children riding in "the safest minivans in the world."
Court records reflect Mueller’s assertion that, according to Chrysler documents obtained during the discovery process, the automaker conducted only one crash test using a noninfant child dummy between 1980 and 1993, when passenger-side air bags were first introduced in minivans. That one test was done in a passenger car, and the results of that test, Mueller says, were "disastrous."
In the sworn deposition provided by Chrysler safety engineer Willson in the Texas case, attorney Boyd pressed the issue, asking why child testing wasn’t being conducted:
Willson: I can’t be specific because I was not immediately involved, but it was limited, in part, because the results were known. The results could be anticipated, and very frequently the dummy could be damaged by such testing, which meant that the results were of little interest to us because they couldn’t be considered valid.
Boyd: And you destroyed the dummy?
Willson: And you destroy the dummy, so there was little purpose in testing something where you knew the result was could be catastrophic as far as the dummy was concerned.
Boyd: And is that your understanding of why additional testing was not done?
Willson: It was my understanding when I was responsible for the dummies and that activity, yes.
Boyd: That we’re not going to continue to do out-of-position testing with child-sized dummies because we know what the result’s going to be, and we’re going to ruin these dummies that are expensive correct?
Boyd: How expensive were the child-sized dummies at that time?
Willson: As I recall, on the order of $20,000 to $25,000.
The way DaimlerChrysler executives see things, they have been put in a damned-if-you-do, damned-if-you-don’t position when it comes to air bags.
Or rather, in their case, sued if you do, sued if you don’t.
"First we get accused of dragging our feet and stonewalling, and then when we do take the lead and put air bags on the passenger side of minivans before we’re required to, we get accused of rushing things," says Karl Lukens, DaimlerChrysler’s lead attorney for air-bag cases, who has been dealing with such suits since the late 1980s. "If we had waited until the last minute to put them in, they would have been complaining about that."
Like Iacocca, some members of the safety community have reversed themselves on the issue of air bags. In their case, however, it was unqualified support for the safety devices and an unwillingness to believe automakers’ warning of problems that, in retrospect, proved to be a mistake.
"The car companies were under intense pressure from people like me to offer air bags ahead of deadline," says Chuck Hurley, executive director of public affairs for the National Safety Council and former head of the Insurance Institute for Highway Safety. "I was one of the people pushing for the air-bag mandate. And when the first air bags began killing kids, it was a personal nightmare for me. Knowing what we know now, further testing should have been done."
In Hurley’s view, the government and safety advocates must share responsibility for the tragic consequences. "There is," he says, "enough blame to go around."
Lukens, who like Mueller is an engineer as well as an attorney, defends the technology behind his company’s minivans and insists there is nothing inherently unsafe about them. Specifically, he says pointedly, there is no risk to children who are properly positioned.
Using an erasable marker and a white board, the tall, lanky lawyer diagrams a problem that is relatively easy to explain. He draws a seat, a dashboard and a child leaning far forward, face almost touching the dashboard. "If you get to within a few inches of an air bag," he says succinctly, "you are in trouble."
Lukens contends that the problem isn’t with the air bags; it is with people who forgo seat belts entirely, or don’t use them properly. In the Sanders case, for example, Alison was wearing her lap belt, but had apparently slipped off the shoulder strap. Doing so had fatal consequences.
"If people don’t figure out another thing in all this, they should learn that they have to wear seat belts," Lukens says. In the vast majority of child deaths and serious injuries that occurred because of air bags, the children weren’t properly restrained. This applies to all automakers, not just Chrysler.
One of the ironies, of course, is that the federal government’s rule 208, the mandate that automakers devise passive restraint systems, was created to protect unbelted passengers.
It is an issue filled with contradictions, not the least of which was the one created when Chrysler merged with German luxury carmaker Daimler-Benz last year. The automaker with one of the worst air-bag records joined forces with a company that has one of the best. In an odd way, it highlights the contention made by Sanders and other safety advocates that all air-bag systems are not created equal.
Daimler began putting air bags on the passenger sides of Mercedes-Benz cars in 1988. In the decade since then, according to NHTSA, not a single passenger has been killed or seriously injured by a Mercedes air bag.
The Mercedes system is significantly more sophisticated than Chrysler’s. It has a two-stage deployment system that sets off the bag at one speed if the passenger is belted, but deploys at a lower speed if sensors indicate the safety belt has not been buckled. It also has a "pretensioner" that reels in the shoulder harness before the bag deploys, pulling the person back against his or her seat. It’s a high-tech solution to the out-of-position problem created when passengers are thrust forward when brakes are slammed moments before a collision.
Several other automakers have compiled equally impressive safety records.
Honda, for example, developed an air bag that deploys with an initial thrust that is more vertical than horizontal. A bag that inflates upward lessens the "punch" suffered by a passenger. As with Mercedes, NHTSA’s investigations have found no instances of passengers being killed by Honda air bags.
In 1996, the Center for Automotive Safety, a nonprofit consumer-safety group founded by Ralph Nader, petitioned NHTSA to open an investigation to determine whether air bags in three vehicle models were defective: driver-side air bags on 1991-1992 Chevrolet Corsicas and 1990-1992 Ford Tauruses and passenger-side air bags for Chrysler minivans from 1994-1996.
The federal agency denied the request, saying an analysis failed to produce a statistical basis to warrant an investigation.
Critics claimed NHTSA’s reasoning was flawed, pointing out the agency only compared the vehicles in question to other vehicles in which at least one air-bag death had occurred leaving out of the analysis all other vehicles that had produced no air-bag deaths. Moreover, in the case of Chrysler, NHTSA made its decision without obtaining information the agency itself deemed crucial, including the depth to which air bags deploy.
Since 1996, Parents for Safer Air Bags whose board of directors is dominated by couples suing Chrysler along with the Center for Automotive Safety and others have insisted a defect investigation was needed. A determination that the bags were defective would be a tremendous financial blow to automakers, which would have to recall more than 1.5 million vehicles to replace the air bags with new inflators that deploy with less force.
NHTSA resisted pleas for a Chrysler investigation for nearly two years.
Then something happened.
Crash tests, snapped necks
On March 1, at the annual Society of Automotive Engineers conference in Detroit, NHTSA released results of a series of crash tests that produced some surprises.
The agency wasn’t looking at air bags; rather, it was trying to determine the dangers pickup trucks, sport-utility vehicles and minivans collectively known in transportation circles as light trucks and vans, or LTVs pose to smaller vehicles. There is a concern that the larger vehicles cause a disproportionate share of injuries when they collide with compact cars.
NHTSA conducted tests that involved crashing four different vehicles into a 1997 Honda Accord. One of those vehicles was a Chrysler minivan, which had a small-sized female dummy riding in the front passenger seat.
"During the LTV crash-test series," NHTSA reported, "there was an unexpected finding related to the performance of the passenger air bag on one of the striking vehicles a 1997 Dodge Caravan. During this particular test the passenger-side air-bag deployment led to high forces on the neck of a belted fifth-percentile dummy, indicating a high probability of a serious injury or death as a result of the interaction." (A fifth-percentile female dummy would be smaller than 95 percent of women.)
Because the type of dummy used in the test was newly developed, there existed the possibility that it, and not the air bag, was defective.
Further testing was conducted. Steps were taken to modify the dummies to ensure they weren’t producing misleading results.
Last month, NHTSA announced that in 11 crash tests, there were six instances where the dummies recorded air-bag impacts that would likely produce serious or fatal injuries. The tests, NHTSA reported, indicated that the bags have a tendency to gather under the subject’s chin, snapping the neck as it deploys.
Chrysler responded by questioning the credibility of the tests, claiming the dummies are defective and the procedures flawed.
In addition to raising concerns about the design of Chrysler’s minivan air bags, NHTSA’s testing also uncovered the fact that, beginning sometime in 1997, the company began using a less aggressive inflator when replacing those passenger-side air bags in older minivans. It apparently did so without notifying NHTSA.
An even less aggressive air bag was installed in 1998 models when NHTSA, bowing to pressure from the auto and insurance industries, temporarily relaxed standards as a way of reducing child deaths until more technologically advanced air bags could be brought into use. (These bags have been installed in all minivans since the 1998 model year.) The argument was that fewer kids would die if automakers weren’t forced to use air bags that deployed with what they believed was the force necessary to meet Rule 208 standards i.e. to protect an average-size male in a 30-mph crash. After the less aggressive air bags went into use, NHTSA tested six new vehicles to evaluate that contention.
"There was a statement made in the past that the original standard, the 208 standard, forced people to use a level of power that created harm to children," NHTSA administrator Ricardo Martinez told a U.S. Senate committee in May 1998. But five of the six vehicles with the newer passenger-side air bags met the older, more stringent 208 standards, Martinez testified. One of those that passed the old test was a Chrysler minivan.
For Sanders and other critics, this is proof that some makes and models including Chrysler’s 1994-96 minivans had air bags that deployed with much more force than was necessary.
For Chrysler officials, though, the critics are benefiting from 20/20 hindsight perhaps even to the point of hypocrisy.
"There are a lot of things we know now that we didn’t in 1994," Mike Aberlich, a Chrysler spokesperson, says. "At the time when decisions were made to move forward (with passenger-side air bags in minivans), the whole safety community was absolutely sky-high on air bags because of the success of air bags. Everybody said, Wow, this is technology moving forward.’ We got a lot of accolades, including an award from Ralph Nader."
The issue of timing is particularly important for minivans and other light trucks; because of their rigid structure and other design features, these models posed a unique set of challenges for air bag designers. For that reason, according to documents in the Federal Register, makers of such vehicles were granted a special four-year exemption that gave them until 1999 to fully comply with Rule 208’s standards.
According to Frank Seales Jr., chief counsel for NHTSA, several automakers did take advantage of the exemption to install depowered air bags. Sanders argues that Chrysler chose to do otherwise so that it could build an advertising campaign around the fact that its 1994 minivans "met all the safety requirements of passenger cars."
The question of how powerful Chrysler’s air bags needed to be is a focal point in Sanders’ lawsuit. Attorney Mueller hammered away at the issue when deposing Chrysler air-bag expert Willson. During the questioning, Mueller zeroed in on a 1995 document Chrysler submitted to NHTSA seeking depowered air bags.
Mueller: And when you talked (in the document submitted to NHTSA) about the air-bag systems must deploy in an aggressive manner in order to meet the FMVSS 208 unbelted-occupant-restraint requirement it was your position that the requirement caused the air bags to be so powerful and that was what was causing injuries to these children and other people who were close to the bag?
Willson: Yes, it certainly contributed to it, yes.
Mueller: In fact, sir, if Chrysler didn’t have to meet that unbelted-male-dummy test, it would be unnecessary to do that, to develop a bag that powerful, true?
Willson: That was our position, that it would be possible to design air-bag systems that did not deploy so aggressively.
Mueller: It would be unnecessary to do that, and it would be unreasonable to do that if you weren’t bound by the unbelted-male-dummy test?
Hearing it all
Ask DaimlerChrysler lawyers about Robert Sanders and the first response will likely be about motives getting money and expiating his own responsibility for his daughter’s death. They suggest that Sanders’ account of the collision in which Alison was killed has been inconsistent, that the crash was more severe than his repeated references to a "fender bender" indicate.
"I think people will feel hoodwinked by the other side" when all the facts come out, Lukens predicts.
But the automaker is viewing this case as something much more than Sanders vs. Chrysler. The way the corporation sees it, this trial will be a watershed event a landmark in the decades-long debate over air bags, with a high-profile safety advocate taking on a major automobile manufacturer.
"This is a trial that started 30 years ago," Lukens says. And he says he’s looking forward to the opportunity to air the record and cross-examine critics in front of a jury.
Although he’s eager for the same opportunity, Sanders is wary of characterizing his court case as the definitive, high-noon showdown on air bags. He makes a distinction between his specific case and the broader issues he’s been fighting for as an activist. (Parents for Safer Air Bags continues to urge NHTSA to mandate that a "whole family of dummies" including children and small women be used in crash testing rather than just average-size-male doppelgängers.) There is a danger, Sanders says, in Chrysler appearing to be completely vindicated should he lose in court, and he acknowledges that "mine isn’t the strongest case.
"There are others where the parent didn’t run a red light, where the child was fully belted," he says. "The lawsuits aren’t going to end with me."
In fact, some experts say, as more and more of the vehicles without the now-mandated air-bag warnings enter the used-car market, there is the possibility of a new wave of child deaths. Media attention to the issue is waning, and buyers of those used cars are likely to be less aware of the problem. Also, those buying the cars are inherently likely to be poorer, and studies show that safety consciousness tends to decrease along with economic status.
That is why Sanders and other safety advocates continue to press NHTSA to conduct the type of investigation that could lead to a massive recall of the minivans so that less aggressive inflators of the type now being used can be installed. But considering the high profile Sanders has attained, it is hard not to view his court date as a watershed event in the air-bag debate.
"A lot of people will be watching," Lukens says. "It will be big."
Evolution of a warning
The dangers posed by air bags were well-documented by the time their widespread use began in the late 1980s and early ’90s. It was the general public that remained in the dark.
It could have been different. From the outset auto manufacturers and government regulators knew that small women and children were particularly susceptible to injury from air bags. In fact, one of the first vehicles ever to contain the safety device carried an explicit warning of the dangers.
A motion filed in a Tennessee lawsuit involving the death of a 5-year-old girl killed by an air bag in a low-speed accident points out that Ford installed passenger air bags in a test fleet of 1,000 Mercury Montereys in 1972. A label placed on the dashboard of these vehicles included the following warning: The right front seat should be used only by persons who are more than 5-feet tall and are in sound health. Smaller persons and those who are aged or infirm should be seated and belted in the rear seat.
The owner’s manual went even further, warning parents, "Small children should never be allowed to occupy the front passenger compartment, whether sitting or standing, because the force of the air bag may impose dangerously high loads on them."
Twenty years later, with the problem still unsolved, federal regulators and auto manufacturers turned their backs on such explicit warnings.
In 1992, at a time when the general public mistakenly pictured air bags as a sort of magic pillow, the Motor Vehicle Manufacturers Association which at the time represented Ford, General Motors and Chrysler petitioned the National Highway Traffic Safety Administration (NHTSA) to mandate uniform warning labels. The Big Three reasoned that "different labels from the various manufacturers may result in a potentially confusing variety of label formats and instructions."
When NHTSA decided on the warning that would appear on 1994 model vehicles with passenger-side air bags, it contained none of the explicit cautions offered by Ford two decades earlier. Even the automakers complained that the government’s warning was too weak. Chrysler requested a stronger warning (although its suggested warning stopped short of telling people that air bags could kill children). Government regulators chose to go with their original, watered-down warning.
In a New York case last year involving a 5-year-old boy killed by an air bag in a low-speed crash, Chrysler argued that it was prohibited from supplementing the government-mandated warning on the sun visor with additional warnings. Although a jury eventually decided that Chrysler’s air bags were designed to deploy at unreasonably low speeds and found the company liable, the judge agreed with the company’s arguments regarding warnings and threw out that portion of the case.
Manhattan U.S. District Court Judge Jed Rakoff ruled that Chrysler was bound by NHTSA instructions regarding warnings and could not go beyond what the agency mandated. For Chrysler to have "added something that potentially might confuse in the form of another warning would, if anything, raise the specter of creating liability," Rakoff decided.
That decision, however, is being appealed. According to federal regulators, there was nothing prohibiting automakers from posting additional warnings on their own.
Responding to a request for information from Parents for Safer Air Bags which filed a brief in the case NHTSA chief counsel Frank Seales wrote in a November 1998 letter: "You asked whether this final rule precluded automobile manufacturers from placing air-bag information elsewhere in the vehicle (i.e., other than on the sun visor) with a text different than that of the sun-visor label. The answer is no."
In fact, some other manufacturers did post stronger warnings. Volvo placed a warning with additional information on the dash; Saab placed safety cards with stronger warnings in front-door and seat-back pockets.
Certainly there was nothing precluding automakers from spelling out air-bag dangers in their owner’s manuals. But in sworn deposition testimony for the Texas case (which was settled out of court), Chrysler safety engineer Howard Willson, under questioning from attorney Larry Boyd, stated that the maker of this country’s most popular minivans didn’t focus air-bag warnings on children at all.
Boyd: Did Chrysler, prior to 1997, ever tell parents that children 12 and under should always be seated in the rear seat?
Willson: We did not focus on that age. We did indicate that children are better restrained and safer in the rear seat.
Boyd: In fact, when it came to dealing with the passenger-side air bag, you didn’t really focus on children in terms of warnings back in ’94, ’95, true?
Willson: That’s true, with the exception of a child in the rear-facing child restraint. The infant, I should say, in the rear-facing child restraint.
Boyd: So that the testimony’s clear, other than the rear-facing-infant-seat problem, Chrysler chose not to or did not, (for) whatever reason, focus on children in terms of its warnings in the owner’s manual with regard to a ’94, ’95 Chrysler minivan?
Chrysler wasn’t the only manufacturer to downplay the hazards. It didn’t take long for the consequences to begin showing up. With passenger-side air bags finding their way into many cars by 1993, the deaths quickly mounted.
By October 1995, 14 children had been killed by air bags in low-speed collisions. The National Transportation Safety Board raised a red flag, and the media for the first time began reporting that air bags appeared to be killing kids.
In July 1996, Parents for Safer Air Bags petitioned NHTSA to mandate stronger warnings. Later that year, NHTSA ordered new warning labels be installed effective Feb. 25, 1997. The new labels included this notification: Children 12 and under can be killed by the air bag. By the time the warning appeared, 38 children had been killed by air bags.
Bags of trouble
When it comes to air bags, 1999 has not been a great year for the Chrysler half of DaimlerChrysler. A combination of lawsuits, government inquiries and a massive recall has hit the automaker within the past six months.
The trouble began in February when a Pennsylvania jury handed down a $58.5 million judgment against DaimlerChrysler in a class-action suit. At issue were the driver-side air bags in Chrysler LeBarons for model years 1988-90. The problem involved positioning of vents for the compressed gas used to inflate air bags. Fourteen drivers suffered hand burns when the bags deployed. But the jury awarded $730 the cost of replacing an air bag to all the approximately 75,000 Pennsylvanians who owned one of the vehicles.
The jury found the air bags contain a "defect in design" and that Chrysler committed fraud by not properly notifying owners of the potential for injury. The automaker, according to an article in the magazine Corporate Legal Times, vowed to appeal the verdict, saying the issue was "trial-lawyer greed, not a defective product."
In March, at the annual Society of Automotive Engineers conference in Detroit, the National Highway Traffic Safety Administration (NHTSA) revealed that a dummy the size of a small woman sustained severe neck damage from a 1997 Dodge Caravan’s passenger-side air bag when the vehicle was crashed into a Honda Accord. The results were unexpected the test was conducted not to measure air-bag performance in the Dodge, but to gauge the impact of collisions involving larger vehicles hitting small cars.
NHTSA followed up with 11 more crash tests. In six instances, the dummies sustained severe neck damage, adding fuel to the controversy over the safety of passenger-side air bags in Chrysler minivans. DaimlerChrysler said it was the dummies and not its air bags that were defective.
Finally, at the end of May, the automaker announced it was voluntarily recalling nearly 1 million of its 1994 and ’95 model minivans because of a problem with their driver-side air bags. There have been about 35 instances in which faulty wiring caused the bags to deploy when the vans’ ignition switches were turned on. The recall includes Dodge Caravans, Plymouth Voyagers and Chrysler Town & Country minivans.