Henry Zoch III, a former U.S. Marine, survived military service in Iraq and Afghanistan, as well as participation in the Boston Marathon when it was bombed in 2013.
But Zoch, 31, didn’t make it out of his Daimler AG-made 2008 smart car alive when his car seat collapsed in a 2014 rear-end accident, according to the complaint in his estate’s wrongful death suit.
A trial set to begin Oct. 22 over his death is shaping up as another high-stakes jury inquiry into what consumer advocates and plaintiffs’ attorneys describe as a long-existing, widespread and extremely dangerous problem for both front and rear seat riders.
It’s one of at least a half-dozen suits slated for upcoming trials over collapsing seats. Such cases may represent an outsize yet little-known legal and financial vulnerability for automakers, as a $242 million verdict last month in Texas and interviews with attorneys indicate.
In these kinds of accidents, drivers and other adults sitting in front seats can be killed or seriously injured when, because of a rear impact, their seats collapse and the force of the collision propels them backward.
Worse still, the adults, or the falling seatbacks, can hit those behind them, often children who are not supposed to ride in the front because of air-bag deployment and other concerns.
The serious brain and other injuries that can occur, especially to young kids, plus automakers’ alleged knowledge of weak seatbacks dating back decades, can spell both high compensatory and punitive damages, attorneys say.
The $242 million verdict against the Toyota Motor Co. in August, for example, included $144 million to punish the carmaker and its American affiliate.
In that case, Reavis v. Toyota Motor Sales USA, a jury found that a seat defect caused serious head and other injuries to two children sitting in the back of a model year 2002 Lexus ES300.
“The Texas verdict will not be the last very, very large monetary penalty” in seatback cases, Jason Levine, executive director of the Center for Auto Safety in Washington, told Bloomberg Law.
Another suit, Rivera v. Cordova, resulted in a $124.5 million verdict in 2016 over brain injuries to an 11-year-old injured in a 2005 Audi A4.
Audi AG, its parent, Volkswagen AG, and other companies appealed, but the case was resolved through a confidential settlement, according to attorney Jeff Wigington, who represented the boy’s family.
Carmakers and their attorneys repeatedly declined, or failed to respond to, requests to talk in any detail about the seatback problem or the related litigation they face.
But Bloomberg Law’s review of a number of recent cases filed in federal and state courts shows the suits affect a big spectrum of defendants, including domestic, foreign and luxury-brand makers. Among the defendants are General Motors LLC, Ford Motor Co., Toyota, Honda Motor Co., and Daimler.
Automakers typically defend the cases by describing a design balance that tries to protect both those in the front and those in the back from rear-end collisions, according to plaintiffs’ attorneys and one former defense attorney who specialized in car crashes.
The defense attorney, who would only speak on background, said it’s hard to safeguard for both. But others interviewed by Bloomberg Law said upgrades to a very old federal safety standard, design changes, and, at the very least, warnings, could go a long way toward reducing the large number of fatalities and injuries caused when seatbacks collapse.
Rear-end collisions trailed only angle collisions as the deadliest type of car crash in the U.S. in 2016, according to data published in May by the National Highway Traffic Safety Administration.
Hundreds of Cases
The true scope of the breadth of the problem is hard to quantify. Levine, of the Center for Auto Safety, said data on seatback failures is very difficult to gather because NHTSA’s main database for fatalities, the Fatal Accident Reporting System, doesn’t code for them.
Another group that collects and analyzes crash data, the Insurance Institute for Highway Safety, is researching the issue but doesn’t have results yet, according to spokesman Russ Rader.
But Levine cites, as a rough proxy for seatback failure-related child deaths, the number of children under age 13 who have died in rear-seating positions when the seat in front of them was occupied.
Nearly 900 children died in those circumstances from 1990 through 2014, according to that data, which was compiled for CAS and released in 2016. The data excludes rollover accidents and crashes where the child was behind an unoccupied seat.
Bloomberg Law’s own analysis of case dockets shows that at least a half-dozen suits alleging serious injury or death from collapsing front seats are proceeding toward trial in federal courts. Other cases filed in recent years have settled.
Plaintiffs’ attorney Todd Tracy of Dallas estimates that between 100 and 200 cases have been filed in the past five years. Tracy, of The Tracy Law Firm, is among the attorneys representing the estate of Zoch, the former Marine.
Most of the cases settle, he said.
Old Standard, Need for ‘Give’
Levine and both plaintiffs’ and defense attorneys point to a number of factors contributing to the seatback failures. The federal standard governing seatback strength “is 50 years old and hasn’t been updated,” said Wigington, with Wigington Rumley Dunn & Blair LLP in Corpus Christi, Texas.
“It’s so outdated that manufacturers have their own internal standards,” he said.
The Center for Auto Safety has seen “failures in the seat structure itself, the recliner mechanism, seat track, and other components,” Levine said. Every manufacturer’s design is different, he said.
The former defense attorney who spoke to Bloomberg Law said a significant challenge in designing the seats is protecting both the front and rear seat passengers.
Automakers have to allow the front seat to yield to some degree to protect front occupants, but not so much that they strike their heads on the roof or hit someone in the rear seat, the attorney said.
Whether seats should yield or not is typically the area of greatest contention in these cases, he said.
Plaintiffs’ attorney Tracy agreed. After a period in which seats failed very easily, Tracy said, automakers now say they design seats to deform only 20 degrees, in a “controlled manner.”
That seatback “give” is to protect front occupants from whiplash and also keep them from the “zone of danger” in the rear.
But automakers too often don’t succeed in protecting both sets of passengers, he said.
The complaint in Zoch’s case alleges a steel bracket in the recliner mechanism of the seat in his Smart Fortwo ripped.
An attorney for Daimler AG, which makes the car, declined to comment on the case because it’s active.
But Daimler, and co-defendants Mercedes-Benz USA LLC and PAG Distributor S1 LLC, submitted filings with the federal court hearing the case in Texas last month which details some of their other primary defenses.
The defendants said the Zoch estate didn’t adequately allege a failure-to-warn claim because it didn’t assert that the vehicle could be made safer with warnings. And the estate didn’t sufficiently plead the existence of a safer alternative design as part of its design-defect claim, they said.
Daimler, Mercedes-Benz and the other defendants also said in a motion for summary judgment that the Zoch estate didn’t show conscious indifference to—rather than just knowledge of—a safety risk, a necessary factor for punitive damages under Texas law.
The fact that many seat-failure victims are children facing many years of future medical care affects the size of verdicts, attorneys said.
When a seatback collapses enough that its occupant is ejected from the vehicle or thrown into the back seat or into someone sitting there, “it’s usually a catastrophic injury,” Wigington, the plaintiffs’ attorney in the Rivera case, said.
Richard Sapp of Nyemaster Goode PC in Des Moines, Iowa, has represented automakers in crashworthiness cases over air bags, seat belts, and roof strength.
Sapp said medical care for permanent brain damage can extend into the “tens of millions of dollars” and “that drives these verdicts.”
The longstanding nature of the seatback-strength issue also has been a factor against manufacturers, according to Levine, of CAS.
“When juries are presented with the information that vehicle manufacturers have known about these issues for decades, it’s not particularly surprising to see the $100 million, $200 million verdicts,” he said. “There’s no hiding behind ‘We just didn’t know.’”
The absence of warnings is another aspect that can affect verdicts. “If you design your seats to yield, deform, and deflect rearward so they can protect the front-seated occupants, knowing there are rear-seated occupants behind them, why aren’t you putting a warning, at the very least, inside the vehicle?” Tracy, the plaintiffs’ attorney, said.
That concern influenced the jury that awarded $124.5 million in the Audi case, he said, adding that another factor that could have been at play in that case was the luxury brand involved.
Still another is a relative lack of publicity about the problem, which could result from the lack of data on the issue and automakers’ inclination to settle suits quietly.
“People are shocked by the defect,” Wigington said. They don’t know about it, he said.
In the Meantime
Toyota is still considering its options related to the $242 million verdict in the Reaviscase, spokesman Eric Booth told Bloomberg Law in an email.
He repeated the company’s post-verdict statement that it remains “confident that the injuries sustained were the result of factors specific to this very severe collision, not a defect in the design or manufacturing of the 2002 Lexus ES300.”
Attorneys for Audi AG in Rivera didn’t respond to requests for comment.
The Alliance of Automobile Manufacturers, a trade organization that represents both domestic and foreign carmakers on safety and other issues, declined to comment for this story.
As for a new federal seatback standard, don’t expect to see one anytime soon.
In May 2016, NHTSA announced plans to test crash dummies in back seats in new models as part of its safety ratings beginning in 2019. But that idea has fizzled.
“NHTSA will not be using rear-seat dummies in its 5-Star Safety Ratings Program for model year 2019 vehicles,” spokeswoman Kathryn Henry told Bloomberg Law in an email.