Product liability experiences of Japanese manufacturers in the USA

Int. J. Fatigue Vol. 20, No. 2, pp. 107–135, 1998 1998 Elsevier Science Ltd. All rights reserved

Printed in Great Britain0142–1123/98/$19.00+.00

PII: S0142-1123(97)00088-1

Product liability experiences of Japanesemanufacturers in the USA

Bernard Ross

Failure Analysis Associates, Engineering and Scientific Services, Menlo Park, 149Commonwealth Drive, Menlo Park, CA 94025, USA

The past and present status of product liability litigation in the USA is addressed with attention to thegrowing number and exorbitant costs of product liability claims. A sampling of product lawsuits andindustrial loss claims involving major Japanese companies is studied from the engineering and technicalpoints of view. The critical contributions of independent consultants toward assisting Japanese manufac-turers in defense of both real and spurious product defect allegations is discussed at length. Theimportance of appropriate safety warning design and language in context of ‘failure to warn’ productliability litigation is stressed. 1998 Elsevier Science Ltd.

(Keywords: product liability; Japanese manufacturers; litigation; design defect; comparative risk; failureprevention)

Product liability has evolved enormously from its for-mative English common law codification over100 years ago whence the practice represented a bastionfor manufacturers and defense interests that was almostimpregnable. Through continuous changes over theintervening period, the present format of tort and pro-duct law, at least in the USA, allows plaintiff omnidi-rectional access to manufacturers in cases where realand imagined defective products are at issue. In reality,the balance of power now favors the plaintiff, andmanufacturers find themselves in the state of siegewhere they can be presumed guilty until proven inno-cent.

According to the distinguished American jurist Rob-ert H. Bork, the USA has a runaway civil justicesystem1. It gives contingency fee lawyers an unfairadvantage over every legitimate enterprise in the coun-try. The economic costs are staggering and pervasive.The fiscal toll includes higher costs for liabilityinsurance, legal defense, lawsuit settlements—and lostmanagerial time. Just the fear of litigation is skewingdecisions on hiring, research and the provision ofservices. In each case jobs, valuable new products andimportant services suffer. It would be hard to overstatethe risk. Many lawsuits are truly ludicrous—driven bythe prospects of a litigation jackpot for the plaintiffand contingency fee lawyers.

The citadel was breached initially when unrealisticlaws which protected manufacturers through privityof contact were vacated through two landmark courtdecisions; first, in theMac Phersoncase2 (1916), fornegligence actions, and later in theHenningsencase3

(1960) for warranty actions. For well over a century,

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the thrust against manufacturers was founded ontheories of negligence. Here, conduct of the defendantparty was at issue, and among the various avenues ofexposure which held a manufacturer culpable for defec-tive products were: failure to warn; failure to test; andfailure to instruct the user. In addition, cases couldbe brought to court on a basis of misrepresentation,negligenceper se, or res ipsa loquiter (Under thedoctrine ofres ipsa loquiterthe happening of an injurypermits an inference of negligence where plaintiff pro-duces substantial evidence that injury was caused byan agency or instrumentality under exclusive controland management of defendant, and that the occurrencewas such that in the ordinary course of things wouldnot happen if reasonable care had been used4.) As faras design was concerned, the formal language includedstatements to effect that the product would be reason-ably safe for intended use and did not have to benecessarily accident-proof. A product could be judgedwithin the framework of negligence theory because ofa manufacturers: failure to use proper materials; failureto incorporate safety devices; poor manufacturingmethods; and lack of awareness to concealed dangers.

With the advent of strict liability law through the1960s, it was allowed that there could be absoluteliability imputed to a manufacturer without any faultwhatsoever, and one only needed to prove that theproduct was unsafe. Thus, whereby in a negligenceaction the manufacturer’s conduct was at issue, in astrict liability proceeding, the product itself was ontrial. Within the framework of strict liability law, thereemerged ultimately the possibility to bring suit againstthe manufacturer for design defect. Here, the funda-

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mental determination was balance of risk in use forthe product vs utility of the product. In other words,there was a burden to protect against harm caused bythe product versus the probability and gravity of theharm itself.

The strict liability rule had a historical definition;that is, the seller should be liable for all injuriesproximately caused by any of its products which arejudged defective. Within this consideration was theforeseeability of injury; that is, strict liability shouldnot be imposed upon a manufacturer when injuryresults from use of its product that is not reasonablyforeseeable. Further, there was a need to show caus-ation; that is, the defect must be a proximate cause ofthe injury. Unfortunately, both trial courts and appellatedecisions in the early 1960s provided no real definitionfor design defect per se; thus, there was no specificdecision (case law), nor statutory guidance, and nodefinitive precedent on which to rely. One statutorydefinition for product defectwas found in the SecondRestatement of Torts5, 1965. For example,

…who sells any product in a defective conditionwhich is unreasonably dangerous is subject to liab-ility for physical harm caused to the ultimate userif the seller is engaged in the business and theproduct reaches the user without substantial changein manufactured condition.

This rule applies even though the manufacturer (seller)has exercised all possible care, and the user has notentered into any contractual or purchase relationshipwith the seller; that is, absent privity of contact.

In Greenman vs. Yuba Products6 (1964), a landmarkCalifornia decision in product liability law, the follow-ing language was found:

A manufacturer is strictly liable in tort when anarticle he places on the market, knowing that it isto be used without inspection for defects, proves tohave a defect that causes injury to a human being.

Ultimately, various design defect cases were broughtto the courts, particularly in California, and finally, arational decision, theBarker v. LuII7 case (1978),emerged to provide a stringent definition of what con-stituted a design defect. This decision was particularlycomplementary to the engineer’s way of thinking sincea provided a series of tests which related to the disci-pline of risk analysis through the more quantitativeparameters of frequency and severity. Now, both thelegal and technical communities could judge, in aprocedural way, whether the burden of harm posed byan alleged defective product outweighed its utility tosociety. Here, reasonably foreseeable use was to beconsidered. More importantly, the benefits of designhad to be greater than the risk of inherent danger. Inother words, failure to perform safely had to be gaugedagainst the ordinary consumer expectation for the pro-duct itself.

In the actual test of benefits vs risk, the followingconsiderations about a product were to be addressedby a jury:

1. gravity of danger posed, that is, severity of poss-ible injury;


2. likelihood of damage caused; that is, frequency ofpossible accident events;

3. mechanical feasibility of an alternate safer designconsidered within the fabric of state-of-art at timeof manufacture;

4. financial cost of an improved design for making theproduct safer; and

5. consideration of adverse consequences due to anyimproved design proposed.

Turning next to a body of statistics which relatesinjuries and fatalities that evolve from the use ofproducts in the workplace (Figure 1)8, it is interestingto note that death rates per 100 000 workers andinjury rates per 1000 workers have shown a monotonicdecrease over the period 1933–1993. On the otherhand, between 1930 and 1994, US tort costs rose bya factor of almost 400. By contrast, US economicoutput (gross domestic product, or GDP) grew only100-fold over the same period. Thus, tort costs haveincreased almost four times faster than the US economyover the past 64 years.

The time span between 1964–1991 is also noted tocorrespond identically with the emergence of productliability actions and law. The most rapid escalationin US tort costs occurred between 1960 and 1985,compounding by an average of 12% annually, whilenominal economic growth (as measured by GDP) aver-aged only 7.9% per year. Concomitant insuranceexpenses have risen apace (Figure 2)9. In fact, USinsurance coverage isca 20–50 times greater than therest of the entire world. Including insured and self-insured interests, the US tort system cost the country$152 billion in 1994. Moreover, this figure does notinclude corollary costs such as lost time, lower pro-ductivity of real goods and services, diversion of intel-lectual resources and so on.

Another way of looking at the increase of costs andconcerns related to product liability is to gauge variousmeasures of social legislation between 1971 and 1995.The US tort system is by far the most expensive inthe industrialized world. Tort costs are 2.2% of GDP,substantially higher than that of any country studiedand two and a half times the average (Figure 3)9.Here, as a baseline, it is noted that the US populationincreased byca 2% over the representative decade. Onthe other hand, projected costs of social inflation weremeasured at nearly 5% during this same period. Butthe number (e.g. frequency) of product liability casesfiled in federal courts increased byca 25%, over 12times greater than the increase of population. Thus,there has been a dramatic gain in both the number ofproduct liability case filed and jury awards over thepast few years.

As a measure of ‘taxes’ associated with productliability, the incidence of multi million dollar verdictsexploded by an even larger factor. For example, thelargest jury awards delivered by the American courtsystem in 1990 (Figure 4)10 and 1995 (Figure 5)11

represent stupendous amounts of money. Moreover, asnoted in these listings, the biggest recovery in 1990did not even make the 1995 rankings.

Total real tort costs from work-related accidents areportrayed in the next chart (Figure 6)9. Here, it isobserved that the historical compound growth rate foreconomic losses due to accidents surpassed the norm

109Product liability experiences of Japanese manufacturers in the USA

Figure 1 Workers, deaths and death rates, USA, 1933–1994

Figure 2 US Tort costs vs GDP

for real gross national product (GNP) by a wide mar-gin. These figures have been rationalized to account forinflation gains; that is, they represent constant dollars.

The awesome consequence of product liability bur-dens in the general aviation marketplace can be gaugedby the accompanying graphic (Figure 7)9. This impacthas essentially destroyed an entire manufacturing indus-try in the USA with long historical roots. Renowncompanies such as Piper, Cessna, Rockwell and Beechhave for all practical purposes abandoned the buildingof small size general aviation aircraft. Total annualproduction has fallen ten-fold fromca 10 000 units to, 1000.

Given the foregoing prior history, it is informativeto assess the present climate and future directions ofproduct liability litigation. For example: the medianjury award in personal-injury cases rose 17% last year,from $53 000 to $62 000, according to Jury VerdictResearch. The figure is the highest since 1991, whenthe median award reached $66 614. While people who


won lawsuits generally hit defendants for more money,the success rate for all who sued remained steady at53%. The only significant drop came in lawsuits overdefective products. In those cases, the median awardfell from $379 685 in 1994 to $260 000 last year,continuing a 2-year trend.

However, when viewed as a method of compensatingclaimants, the US tort system is highly inefficient,returning , 50 cents on the dollar to the people it isdesigned to help—and, 25 cents on the dollar tooffset for actual economic losses.

Ongoing studies of compensation systems for auto-mobile personal injuries show that claimant rates havebeen rising almost everywhere for more than a dec-ade—on average,ca 4% per year. Indeed, despite seatbelt laws and safer automobiles, a driver in 1991 wasone and a half times more likely to allege injury inan accident than a driver in 1980. The most detailedstudy of inappropriate litigation was conducted by theRAND (Research and Development Corporation) Insti-

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Figure 3 Global view: tort Costs as a percentage of GDP (1994)

Figure 4 The five largest jury awards in 1990*

Figure 5 Top five cash jury awards in 1995



Figure 6 Tort cost and GNP, 1950–1990

Figure 7 General aviation

tute for Civil Justice, a nonprofit national defenseresearch organization. Examining hundreds of thou-sands of auto injury claims filed nationwide, RANDfound that about one-third to 40% of all medicalexpenses claimed were ‘excessive’—associated withnonexistent or exaggerated injuries, and with runningup medical costs in order to increase liability payments.These expanded claims accounted forca $13–18 billion


dollars (1993) of auto insurance premiums or an aver-age of $100–130 additional cost to individual con-sumers per year.

The RAND studies also suggest that the Americanlegal system is being exploited by too many peoplewho do not have meritorious claims, at the same timethat is not being used beneficially by large numbersof people who have a legitimate cell on its resources.Some of the latter rely on alternative sources of com-pensation for their injuries; others do not know theyhave legal claims or are turned away by lawyersbecause their injuries—despite being meritorious—havetoo little monetary value. The story of the Americanlegal process, then, is not a story of too many lawsuits,but rather that of a legal system which does not dovery well at providing access to those who should usethe system, or turning away those who should not.

From 1985 to 1994, punitive damages were awardedin nearly 20% of the verdicts for qualified cases. Eventhough the current policy discussion in the USA aboutpunitive damages focuses primarily on product liability,most punitive damages are awarded in intentional tortand business cases. These two categories accounted for. 80% of all the punitive damage awards in theRAND sample. In contrast, product liability was theunderlying cause of action in only 5% of the punitivedamage actions and such damages were awarded injust 2% of the product liability verdicts.

Across all trial litigation, plaintiffs prevail in slightlymore than half the cases. They are most successful inautomobile personal injury and business cases, winningca 66%. Claimants succeed least often in medicalmalpractice and product liability cases, winning only33% of the former and 44% of the latter.

Now that a greater understanding toward the pastand present status of product liability litigation in theUSA has been addressed it will be useful to considercertain actual case histories as illustrative examples. Inthis context, a sampling of signature product lawsuitsand industrial loss claims which have involved majorJapanese companies are studied, particularly from the

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engineering and technical points of view. The natureof these studies illustrate the typical experiences ofmultinational Japanese manufacturers engaged in USbusiness operations.

Of course the greatest presence of Japan in theAmerican marketplace is through automobile andspeciality vehicle sales. Thus three of the case histories,which embrace vehicle stability issues, involve thefollowing products:

I all terrain vehicles (ATV) by Honda (Figure 8);I sports utility vehicles (Samurai) by Suzuki (Figure

9); andI jet ski by Kawasaki (Figure 10).

In addition, a significant recall campaign initiated bythe US National Highway Traffic Safety Administration(NHTSA) is discussed.

I automobile seat belts by Takata.

In the construction equipment arena, there are twoissues of interest:

Figure 8 Honda ATV


I mobile cranes (warnings and anti two block systems)by Tadano (Figure 11);

I mini excavators (warnings and stability) by Kubotaand Takeuchi (Figure 12).

A product liability personal injury case concerningmachine tools is reviewed:

I automatic multi spindle lathe (design defect andwarnings) by Okuma (Figure 13).

Finally, an industrial loss related to structural designunder high thermal loads and the miscommunication ofengineering objectives between American and Japanesecompanies is introduced:

I arctic gas flare systems by Ishikawajima-HarimaHeavy Industries (Figure 14).

CASE HISTORIES

In the foregoing section of this paper, the broad arenaof product liability litigation in America was examined


Figure 9 Suzuki Samurai

Figure 10 Kawasaki jet ski

and the costs to manufacturers in general presentedthrough numerical and graphical formats. Moreover, anominal selection of major Japanese manufacturersdoing extensive business in the USA and subject tothis country’s product liability laws was identified. Inthe present section a more detailed elaboration ofthe specific problems confronting each representativemanufacturer is provided. The range of engineeringand technical consulting actions undertaken to afforda winning defense posture for Japanese clients in court-room trials, where strict liability (i.e. is design defect)


and negligence actions are inevitably asserted, is alsodiscussed briefly.

First, it is useful to acknowledge the major pen-etration of American markets by Japanese companiesthrough their US counterparts.Figure 1512 shows thetop 25 US subsidiaries of foreign corporations. Asseen, six of the first ten industry giants are Japanesecorporations. Moreover, the accelerated growth of busi-ness activities by Japanese companies in the US overthe period of 1988–1994 is portrayed inTable 1.

During this 6 year period, the increase in dollar

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Figure 11 Tadano crane

Figure 12 Takeuchi compact excavator



Figure 13 Okuma lathe

Figure 14 IHI flare system

revenues for Japanese enterprise more than doubledand their business activities in America have surpassedthe $50 billion level13.


CASE I: ALL TERRAIN VEHICLES; HONDA

The ATV introduced in the US by Honda (Figure 8)has proven to be an exceptional piece of equipmentand it has created a virtual revolution in the recreationvehicle industry. However, not withstanding widespreadleisure time use, these machines have also gained favorin the agricultural, construction and remote-locationtransportation sectors. Originally, ATVs were presentedin a three-wheel configuration. However, due to theintense pressures of increasing litigation and allegationsthat these vehicles were potentially unstable, Hondaand other Japanese manufacturers, such as Suzuki andKawasaki acquiesced to external influences and byconsent degree now produce only four-wheel ATV ver-sions.

The product liability litigation problem confrontingHonda can be characterized by the following notations:

The problem

I 26 years marketplace experience (1970–1996);I 2.5 million units sold in the USA, 1970–1990;I 20 deaths and 7000 injuries over last 2 years;I 880 deaths, 300 000 injuries since 1982;I one-half operators under 16 years age;I 500 lawsuits filed against vehicle manufacturers.

However, a dedicated review of thousands of fatalaccident reports compiled by government agenciesthroughout the USA and the statistical interpretationof data contained therein have established that a con-siderable percentage of ATV fatal accidents involveunderage drivers and/or alcohol consumption. More-over, the age groups most susceptible to vehicle acci-dents while ‘under-the-influence’; that is, the 16through 39 year old population, as expected, cause apreponderance of these accidents (Figure 16)14. Thefirst level prime factors involved in three-wheel ATVvehicle related fatal accidents were researched by the

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Figure 15 Giants in their own right: the top 25 US subsidiaries*

Table 1 History of business activity Japanese companies in theUS13

Year Dollars (millions)

1988 24 0141989 31 0981990 34 4841991 40 0561992 42 6591993 44 5391994 50 992

US Consumer Product Safety Commission (CPSC). Asnoted by this agency,ca 80% of all accidents were aresult of operator error; whilst mechanical malfunction,environmental causes, and chance were attributed 11.1,7.9 and 1.6% responsibility, respectively.

To complement these findings, it is interesting toacknowledge the results gained from review of 166ATV-related accidents by the CPSC investigators per-taining to potential remedies (that is fixes) for three-wheel ATV tip and/or overturn mishaps (Figure 17)15.

Given the significant ATV accident history it is notsurprising that attorneys have attacked the conceptionand design of these vehicles through product liabilitylitigation on behalf of injured parties. Among engineer-ing aspects, all of which in one way or another havebeen pursued by opposing testifying experts, are citedthe following:


Figure 16 Percent of ATV drivers involved in fatal accidents andreported to have consumed alcohol (1989)

I mobility, handling and stability;I performance:

drivetrain power;acceleration and braking properties;traction capability of tires;top speed;

I driveabilty, maintainability and design life;I ergonomics/human factors:

positioning (seat, footpegs, handlebar);


Figure 17 Potential fixes for tip/overturn accidents on three-wheel ATVs

ride quality;noise;

I safety:crashworthiness/rider protection;instructions/warnings.

In defense of Honda and the other ATV manufacturers,independent consultants have performed a mammothschedule of vehicle performance and handling testsunder widely varying conditions. These essays werecarried out both on asphalt–concrete test pads andacross all manner of off-road terrain sites. To this end,specialized instrumentation and data processing systemswere developed to measure vehicle dynamic quantitiessuch as: acceleration; gyro/pitch and roll angles; yawvelocity; steer angle; differential application; and speed.The resulting typical handling response features gainedfrom a J-turn test of the Honda ATV 250ES vehicleon dirt and asphalt surfaces are plotted inFigure 1816

and Figure 1916.The usual ATV litigation implicates an under-age

driver (i.e. child) who has been injured or killed ineither a lateral or end-over-end (pitch) roll-over acci-dent. Given these circumstances, opposing experts haveproposed all manner of elaborate rollover protectionstructures (ROPS) and contraptions under the guise ofaffording protection to the user public against bodilyharm. Two of the more outlandish examples are shownin Figures 20and 21. On the other hand, it is clearlyapparent that the manufacturers of ATVs are both fullyaware and understanding of ROPS installations fortheir vehicles since specific models such as the Honda


Pilot FL400R are indeed produced with an integratedROPS systems for racing activities.

Ultimately, the plaintiff’s bar and consumer advo-cacy groups promulgated their alleged concerns aboutthe risks associated with ATVs to the US CPSC. Ineffect, plaintiffs’ contention was that ATVs should bebanned from the marketplace entirely. However, basedin large part on considerable vehicle trials and theanalysis of risk and fatal accident data provided byindependent consultants, the CPSC replied to thesedemands with the following comment:

in this notice, the commission announces that it isterminating its rulemaking proceedings to addressrisks associated with all-terrain vehicles ATVs. Thecommission also has concluded that an overall banof ATV use is not appropriate because a largeportion of ATV use is for nonrecreational purposes,because ATVs provide significant recreational value,and because there are not close substitutes forthe product.

On the other hand, accidents with ATVs still happenand product liability lawsuits are never-ending. In thiscontext, the battlefield becomes the courtroom whereeach individual accident case must be vigorouslydefended. For instance, a thorough reconstruction ofthe accident event is of necessity undertaken. First, aland survey of the accident site by conventional means,as well as via aerial photography to establish topologi-cal features, is accomplished. Then photogrammetrytechniques are used to obtain relevant information from

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Figure 18 Lateral acceleration and handlebar angle vs time

Figure 19 Response time vs lateral acceleration solid axle, J-turntesting

Figure 20 Dahle ROPS on Honda TRX 250

all accident scene photographs, as exist, including skidmarks, impact signatures and point of rest locations.A global mapping of the accident site is developednext. Vehicle handling trials on the test track are


then run to duplicate circumstances of the mishap aspreviously determined by vehicle dynamics calculationsusing advanced computer codes created for this specificpurpose (i.e. MADYMO (MAthematical and DYnami-cal MOdels), a general purpose software package whichapplies multibody and finite element techniques foraccident reconstruction and crash analysis.)

Data obtained by extensive means of instrumentationare coordinated with the accident site background toproduce an engineering graphics video animation ofthe entire event and thus convey to a courtroom juryall known and determined circumstances underlyingthe specific mishap at issue. An example of an accidentportrayal using video graphics animation is shown inFigure 22. More often than not, reckless driving,speeding, miscalculation, under-age operators, lack ofdriver training and alcohol-related effects are determ-ined to be the principle causes for any given accident.

Once the actual circumstances of the accident eventare known, the importance of a ROPS structure asmeans of defense against personal injury can be exam-ined. Typically, ROPS structures provoke more injuries


Figure 21 Johnson vehicle

Figure 22 Video animation graphic of ATV accident

than they protect against since it is imperative that adriver in a ROPS-equipped vehicle be wearing a seatbelt in order to be constrained within the operatorprotective zone. On the other hand, given that a pre-ponderance of ATV drivers disdain the use of seatbelts, particularly in the younger age groups, the ensu-ing ejection of a driver in a roll-over event becomes


lethal and generally the ROPS structure itself producesserious decapitating injuries.

CASE 2: PERSONAL WATER CRAFT/JET SKIS;KAWASAKIAnother product which has created a revolution, cer-tainly in the recreational sector, is the personal water

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Figure 23 PWC advertisement

craft (PWC) or jet ski. The pioneer company in thisfield was Kawasaki who essentially coined the jet skilabel. A jet ski craft in rather temperate use as por-trayed by the Kawasaki company through its productliterature is shown inFigure 10. However, tabloidmagazines devoted to sports and thrills have vigorouslyportrayed jet ski water craft in far more aggressive useand maneuvering circumstances as seen inFigure 23.Such overcharged presentations encourage recklessoperation and inevitable mishaps.

The product liability exposure confronting manufac-turers of PWC can be highlighted as follows.

The problem

I 1994—56 fatalities and 1338 injuries with PWC;

Figure 24 Inside view of wind tunnel and ventilation test set-up, wind tunnel speeds to 15 mph generated by parallel fans


I 3000 PWC involved in accidents;I PWC comprise 13% of all recreational vessels and

are involved in 46% of all injury accidents whichinclude numerous fatalities;

I 60 mph speeds are attainable by PWC.

The growth of PWC activity in the USA took off inleaps and bounds when the 1987 Yamaha Wave Runnerwith seated occupants was introduced. This much easierto use craft created mass appeal and now 97% of allsales are sit down models.

The complexities of the marketplace can be definedby the following section.

The market place17

I Current laws governing PWC operation vary widelystate to state;

I 25 states have no life jacket mandates;I age minimums across the USA: none to 18 years old;I only nine states require training and/or certification.

Common PWC litigation issues usually involve theseconsiderations:

Common PWC litigation issues.

I Vehicle performance and maneuverability (steering,thrust, deceleration, impact response);

I fire and explosion (ventilation, electrical systems);I warning labels/owner’s manual (visibility, compre-

hension, effectiveness, proper operating and mainte-nance instructions);

I regulations compliance [United States Coast Guard(USCG), American Boat and Yacht Council(ABYC), American Bureau of Shipping (ABS), Codeof Federal Regulations (CFR’s), Underwriter Labora-tories (UL), Society for Automotive Engineering(SAE)];

I visible and conspicuity (splashing, rear view mirrors,PWC colors);

I vehicle design (seat design, kill switch, mirrors,venting);


I risk of PWC operation (determination, perceptionand comparison).

With regard to fire and explosion events, a majortechnical issue concerns engine compartment venti-lation. Specifically, the USCG has attempted to intro-duce requirements related to engine compartment vol-ume and natural ventilation abilities. In these regards,a wind tunnel with air speeds up to 14 mph generatedby parallel fans has been constructed by outside con-sultants to assist manufacturers toward understandingair flows and ventilation performance of PWC enginecompartments (Figure 24).

Amazingly, there is a history of fatal accidents wher-eby PWC have ventured out into far reaching, openwaters and either run out of fuel or become otherwisedistressed ending up with operators and passengersirrevocably lost-at-sea. Plaintiffs have complained thatthese crafts should be equipped with flares and otheremergency rescue equipment to anticipate such inordi-

Figure 25 Jet ski righting energy curve


nate and unique experiences. In fact, there is even aNew York State proposal to equip PWC with flaresfor loss at sea episodes.

Finally, the static and dynamic equilibrium of jetski water craft has been broadly studied. Equations ofmotion were developed and solved for a wide varietyof buoyancy and external forces. A simplified portrayalof results gained from these stability studies is shownin Figure 2516. The figure indicates that the restoringforce exerted on the water craft as well as the watercraft’s stability depend upon the angle the hull makeswith the water surface.

Some of the technical studies performed by outsideconsultants to assist in the defense of various productliability lawsuits include the following topics:

PWC water interaction.

I Vehicle motions (wave induced accelerations, waveprofile, drag calculations, heave);

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Figure 26 Article from Consumer Reports, July 1988

I loads on operator (caused by vehicle accelerations);I impact analysis (slamming and crush energy in

vehicle collisions);I environmental (wave velocity; wavelength and per-

iod; wave energy; tides and currents).

CASE 3: LIGHT UTILITY VEHICLE; SUZUKISAMURAI

Probably the most serious product liability dilemmaconfronted by Japanese manufacturers in the USA con-cerned the Suzuki Samurai light utility vehicle. In1988, the widely read periodical, Consumer Reports,published an article which depicted handling and per-formance tests that the authors claimed as proof that‘The Suzuki rolls over too easily’ (Figure 26)18. Goingeven further, the Center for Auto Safety (CAS), a so-called non-profit consumer advocacy group, petitionedthe NHTSA to recall such vehicles†.

If the CAS request had been approved, the globaldollar costs to Suzuki would have mounted into thehundred millions range. Given these dire circumstances,consultants were engaged to verify that the Suzukivehicle did not manifest any untoward stability andhandling problems; that is, this vehicle was no better–

†CAS Petition Request for Samurai Recall: ‘The Center for AutoSafety…petitions [NHTSA] to open a defect investigation and recallall 1986–1988 Suzuki Samurai and its variants such as the SJ410’.Reference: Center for Auto Safety in a letter to NHTSA, February1988.


no worse than comparable peer group automobilesalready in the marketplace. Moreover, extensive acci-dent data base analyses were carried out to reveal thatthe Suzuki Samurai accident rate was greatly influencedby the demographics of its driver population. In latterregard, the preponderance of accidents were found tohave occurred with excess alcohol consumption as aprime factor as well as a more reckless driver popu-lation; embracing the teenagers through twenties agegroups.

A comparative risk assessmentvis a vis fatal injuryrates in sport utility vehicle rollover accidents ispresented inFigure 2719. As seen, the Suzuki Samuraiconforms essentially to the median vehicle in its class.Other well known makes clearly demonstrate worsequalities.

Countless performance and handling tests were per-formed with the Suzuki Samurai. A representativeexample of the elaborate instrumentation and dataacquisition system hardware that was devised for thesepurposes is shown inFigure 28. The complete arrayof measured data quantities and the signal processingequipment used to evaluate these input variables isrepresented by the block diagram schematic for theinformation management system depicted inFigure2916.

The Samurai testing program confirmed that notwith-standing the alleged Consumer Report findings to effectthe vehicle would inevitably roll over when driventhrough a slalom course at 39.7 mph, student driverswere able to maneuver the Samurai through the same


Figure 27 Suzuki comparative risk histogram

Figure 28 Variable steering stop fixture


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Figure 29 Instrumentation schematic

exact course at speeds well over 40 mph. Conversely,it was demonstrated that the Suzuki vehicle could bemade to roll (that is overturn) purposely if the driverapplied strong, exaggerated steering inputs with com-bined hard, abrupt braking toward the express purposeof causing vehicle instability. Front wheel steeringangles of almost 14° and a steering wheel input of271° were required to trigger the rollover instability.On the other hand, the vehicle was driven successfullythrough the same course at the higher speeds withonly 6.8° front wheel angle and 136° steering wheelinput (Figure 30)16. A representative trace for vehicleresponse derived from handling tests and corollary datacollected through the information management systemalready described is shown inFigure 3116.

The independent consultants synthesized reams ofactual fatal accident data (FARS) and the results gainedfrom inexorable road and track testing of the SuzukiSamurai. These findings were presented to the NHTSAboard charged with the Defect Recall Petition. As aresult of these considerable efforts (and expenses too)the board issued the following statement:

Denial of Samurai defect petitions

Both petitions for a defect investigation are denied.The rollover crash involvement of the Samuraiappears to be within the range of most other lightutility vehicles. Rollovers where they have occurredoften appear to have been influenced by adversedriver and environmental factors such as high riskdriving maneuvers, drinking, low ambient light, andlack of driver familiarity with either the vehicle orthe road20


CASE 4: HEAVY CONSTRUCTION EQUIPMENT;KUBOTA AND TAKEUCHI

Japanese construction equipment manufacturers are inthe forefront of introducing innovative machines to theAmerican market. In particular, the mini or compactexcavator as marketed extensively in this country byKubota and Takeuchi fall within this category. How-ever, these machines have experienced rollover acci-dents during the past 10 years or so of operation historyin this country. Because they are exceptionally small,in comparison with conventional hydraulic backhoeexcavators, and given that ROPS are a standard featureof the compact design outline, the unsightly appearanceof this equipment would suggest that a mini excavatoris unduly top heavy. This theme has been promotedby plaintiff’s attorneys as a design defect argument inrollover (tipover) accident lawsuits.

In this context, assistance has been provided toJapanese manufacturers by compiling an extensive list-ing of worldwide excavator makes and models withpertinent dimensions and numerous other pertinentcharacteristics. A stability measure was devised toprovide the ranking of comparable lateral tipping anglesfor each piece of equipment. In particular, for theKubota KX-41 mini excavator, the subject of twotipover accident lawsuits, it was established that thelateral stability of this machine, as measured by therollover index developed here, was no better and noworse than other construction equipment of comparablesize (that is horsepower) (Figures 32–34)16,21.

In all known cases, the personal injuries experiencedby the mini excavator operators were a direct causeof impact between some member of the ROPS and theejected human body. And, of course, in each instancethe operator was obviously not wearing the necessary


Figure 30 Consumers Union Samurai testing

seat belt designed explicitly to work as a safety systemin conjunction with the ROPS and thereby afford aninviolable operator protection zone.

It is interesting to acknowledge that except for theUSA and Canada, the majority of countries worldwidedo not envision ROPS structures on mini excavators.The photo in Figure 35, which shows a Komatsumachine working in Tokyo depicts this situation.

Assistance has also been provided to the manufac-turers of heavy construction cranes particularly dealingwith the issue of safety warnings. One such client hasbeen Tadano, the world’s largest manufacturer ofcranes. Here the contributions have been two-fold.First, to edit operator manuals written in an awkwardform of Japanese English into the language of contem-porary American English usage. Next, and moreimportantly, warning labels placed on the cranes havebeen recast and rewritten in contemporary Americanformat to conform with the ANSI Z35.1 Safety Stan-dard requirements (Figure 36)16. The broad application


of pictographs, or cartoons, has been a major focus ofthese activities.

CASE 5: VEHICLE EQUIPMENT SUPPLIER;TAKATA

A problem of enormous scope confronted the TakataCompany when NHTSA contended that seat beltsmanufactured by this company were subject to prema-ture failure. Based on the study of accident statistics,NHTSA issued a recall notice governing some 8.7million 1986–1991 timespan vehicles. The internalcosts for Takata and the automobile dealers of affectedvehicles were projected to surpass one billion dollars.The recall was to be the second largest in US history.

The issues involved can be characterized succinctlyas follows:

126 Bernard Ross

Figure 31 Steering wheel angle vs time, modified obstacle avoidance test, Samurai-steering comparison

The marketing problem

I Takata supplies 50% of the seat belts in Japanesebuilt cars;

I Takata controls 20% of the North American market;I the number of makes and models recalled represents

5% of all vehicles on US highways;I 46 different model cars affected.

The technical problem

I NHTSA reported 931 complaints and 47 injuries,but no deaths over a 9 month investigation period;

I seat belt buckle latch problems included brokenrelease buttons and jamming of the latch mech-anism (NHTSA);

I internal parts experienced failure (i.e. red releasebutton) due to: ultraviolet rays; plastic embattlementand failure; jammed cam lock mechanism; and metallatch not locking or becoming loose prematurely(NHTSA);

I Takata switched from nylon to plastic in 1985;I resin changed in 1992 from ABS to polyacetal for

production efficiency gains.

The liability problem

I Honda (1986–1991 Civics) reported 6800 cases ofrepaired or replaced seat belts in a 1.5 millionvehicle population;

I eight possible accidents may involve these seatbelts (NHTSA);

I Honda is defendant in three belt-related lawsuits;I no confirmed instance where belt failed during an

accident.


The logistics problem

I NHTSA recall of 8.7 million 1986–1991 eravehicles;

I one billion dollars cost;I second largest recall in US history;I manufacturers affected include: General Motors,

Chrysler, Honda, Nissan, Mazda, Mitsubishi, Suzuki,Subaru and Isuzu;

I six million vehicles due to Honda and Nissan alone;I 4.8 million affected vehicles in Japan, but no com-

plaints lodged there.

Tests on seat belt latches confirmed that the peakload stress at failure in a three-point bend test wasreduced through exposure of the seat belt assemblyplastic components to ultraviolet radiation. Seat beltassembly designations from many vehicles were exam-ined in this manner.

CASE 6: INDUSTRIAL EQUIPMENT; OKUMAMACHINE COMPANY

A product liability case whereby a machine tool oper-ator suffered severe head injuries occurred in a factoryduring a machining operation on an Okuma LB15engine lathe (Figure 13). A description of the accidentevent was as follows:

I worker attempted to turn round bar stock with 2 feetof stock protruding from the machine;

I upon machine activation, heavy vibrations and insta-bilities caused the protruding stock to bend 90°,damaging the machine and producing a loud noise;

I operator attempted to investigate and was struck bythe rotating bar stock.

This accident happened notwithstanding the fact therewas a very specific warning affixed in a permanent


Figure 32 Excavator comparison sorted by HP


128 Bernard Ross

Figure 33 Mini-excavator tipping angles

way by a metal plate to the machine itself. The warningcontained language that related directly to the veryaccident occurrence (Figure 37)16. Moreover, it wasestablished by independent consultants that the bentrotating bar stock which created considerable damageto the workpiece aperture, (Figure 13) produced violentvibrations and acoustic racket which signaled to ancognizant operator that approach to the area of distresscould cause grievous physical harm.

A sample recording of the acoustic measurementsand vibration data obtained during a mock trial of theaccident event with a similar piece of bar stock cap-tured in the lathe chuck is seen inFigure 3816.

CASE 7: ENGINEERING DESIGN;ISHIKAWAJIMA HARIMA HEAVY INDUSTRIES(IHI)

The gross structural failure of an elaborate gas flaresystem nozzle jungle occurred on the Alaska north


slope. The structural design and steel fabrication werecarried out by a Japanese firm (IHI) (Figure 14).Engineering information concerning radiation heatloads was furnished to IHI by an American companyentrusted with the burner design and flare pitcapacity determinations.

The damages experienced can be seen inFigures39–41. Two configurations for the burner support andfeed assemblies were employed in the flare pit. Onearrangement comprised straight vertical burner feedtubes joined directly to an underlying horizontal large-diameter header pipe. The other arrangement, the oneinvolved in the structural collapse, incorporated a take-off pipe from a central header pipe, slanted at a 45°angle, and joined to the vertical burner feed stub pipesthrough a welded joint which was protected by athermal jacket. The outboard, or cantilever feed pipes,were held in alignment by vertical pipe struts supportedon a horizontal I-beam. All of the exposed parts wereprotected by thermal heat shields from the very intense


Figure 34 Excavator stability measures: machines, 80 HP

Figure 35 Komatsu PC-05


130 Bernard Ross

Figure 36 Tadano danger label revision

Figure 37 Warning label

radiation flux energy emitted by the burners. A measureof distress due to high exposure to the incident radi-ation can be seen inFigure 42.

IHI proposed two design alternatives for modificationof an existing array that was deemed to be inadequateduring the pre-construction phase (Figure 43)16. Amongthe loads to be considered in a structural evaluationfor the different designs were: selfweight and snow-load; gas thrust; operating earthquake; contingencyearthquake; and differential temperatures. IHI, in thefollowing letter to the plant operator, recommended thatthe ‘alternative 2 design’ be adopted for the retrofit.

As we have already informed you…flare headerdesign must be revised as the result of the actualsize flare header model experiment…

Our full scale model shows that not only branchesbut header itself if not strong enough to support


double row burners. This problem is not solved bymerely adding stiffeners nor the use of 60 pipe. Thisis the reason why we made two alternatives foryour comment…

Alternative 2…has a one row straight burners onflare headers…we think that Alternative 2 is saferand preferable design for mechanical viewpoint.

…(2) Alternative 2 has more mechanical strengththan Alternative 1.

However, for reasons which are unclear, the principalsdecided on the alternative 1 design. Also, because theradiation loads supplied to IHI were greatly under-stated, the resulting structural arrangement was signifi-cantly below the expected strength; consequently the


Figure 38 RPM, acoustic, vibration data for 69 stock failure

Figure 39 IHI flare system structural failure


132 Bernard Ross



system suffered the noted collapse a few months afterstart-up.

As anticipated, the Japanese company was broughtinto various lawsuits between the parties much totheir dismay, given that the alternative design theyrecommended† had not been adopted and the infor-mation provided for design purposes was flawed.

To ascertain the root cause of failure, independentconsultants executed wide-ranging thermal and struc-tural analyses even including vortex shedding effectsand seismic evaluations in the scope of work. Gascombustion and radiation phenomena were also

†Sections of the flare pit which already incorporated the alternative2 design did not experience failure (Figure 41).


addressed. As a result of these efforts, it was determ-ined that thermal expansion of the simply supportedbeams, which buckled at temperaturesca 365°C(685°F) exceeded design allowable. It also was recog-nized post accident, that certain key mechanicalelements such as slot connectors, sliding pads andeccentric end joints were not properly in place and/orconstructed.

WARNINGS

The most important message which this paper wouldintend to deliver for Japanese manufacturers exposedto the American product liability mess is the all-pervasive importance of good safety warning design


Figure 42 Evidence of high exposure to thermal radiation on IHI structural members

Figure 43 Proposed IHI flare system structural design alternatives

and language. Apropos, there has been great progressfrom the standpoint of improved pictorial graphics andthe formatting of label decals during the past 6 yearsin the USA (for example:Product Sign and LabelSystem22 andProduct Safety Handbook23). Given at theoutset that there is an immense language barrierbetween Japanese and American English, and the factthat product liability litigation based on failure to warninsinuations is largely unknown in Japan, it is impera-tive that Japanese manufacturers comprehend the


necessity and value of proper warning design andplacement.

However, even in the USA one finds warnings thatare completely incongruous (Figure 44). And, in fact,the whole issue of plastering an infinity of warningson just about every product label has been the subjectof a rather amusing cartoon (Figure 45).

ACKNOWLEDGEMENTS

The author acknowledges the outstanding contributionsand diligent work contributed by Mr Brad McGorantoward the realization of this paper.

Figure 44 Warning sign

134 Bernard Ross

Figure 45 Cartoon

REFERENCES

1 Personal statement by Judge Robert H. Bork, AmericanEnterprise Institute.

2 Mac Pherson v. Buick Motor Co.,217 N.Y. 382, 111 N.E.1050, 1916.

3 Henningsen v. Bloomfield Motors, Inc.,32 N.J. 358, 161 A.2d69, 1960.

4 Black, H. C.,Black’s Law Dictionary, 5th Ed. West PublishingCo., St. Paul, MN, 1979, p. 1173.

5 Restatement 2d of Torts, American Law Institute, Section 288,American Law Institute Publishers, St. Paul, MN, 1965.

6 Greenman v. Yuba Power Products, Inc.,59 Cat. 2d 57, 27Cat. Rptr. 697, 377 P. 2d 897, 1963.

7 Barker v. Lull Engineering Co.,20 Cal 3d 413, 143 Cat. Rptr.225, 573 P. 2d 443, 1978.

8 National Safety Council,Accident Facts. National Safety Coun-cil, Washington DC, 1995.

9 Fortune Magazine, 1994.10 Lawyers Weekly USA.11 Top ten jury verdicts of 1995.Lawyers Weekly USA, 15 Janu-

ary, 1996.12 Introduction to Fortune’s Global 500,Fortune Magazine,

August, 1996.


13 US Commerce Department,Survey of Current Business, 1996,76(7), 111.

14 US Consumer Product Safety Commission,Analysis of CausativeFactors in All Terrain Vehicle-related Deaths—1989. US Con-sumer Product Safety Commission, Washington, DC, 1991.

15 US Consumer Product Safety Commission, Division of HazardAnalysis, Four-wheel ATVs and Lateral Stability: EmergencyRoom Treated Injuries (1989). US Consumer Product SafetyCommission, Washington, DC, 1990.

16 Failure Analysis Associates internal work product. Failure Analy-sis Associates, Menlo Park, CA, 1996.

17 Are PWC’s safe.Travelers Magazine, August, 1996.18 The Suzuki rolls over too easily.Consumer Reports, July, 1988.19 National Highway Traffic Safety Administration,Fatal Accident

Reporting System (FARS) Data, 1984–1987. National HighwayTraffic Safety Administration.

20 Federal Register, 1988, 53(174), 6 September.21 Failure Analysis Associates, SF01795. Failure Analysis Associ-

ates. Supporting data acquired through product literature, MenloPark, CA, 1996.

22 Product Sign and Label System. FMC Corporation, Santa Clara,CA, 1990.

23 Product Safety Handbook. Westinghouse Electric Corporation,Trafford, PA, 1985.

Product liability experiences of Japanese manufacturers in the USA

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