perhaps the single most important component in vehicle ...a jailer assisted two prisoners’...

Ben Baker is a lawyer in the Products

Liability section of Beasley Allen Law

Firm. In his practice, Ben has been

involved in cases against automobile

manufacturers for over 20 years.

Among his many successes, Ben was on

the trial team that obtained a

$3 million verdict against Toyota in

2013. Ben has also obtained record

$16.8 million and $12 million verdicts

against cab guard manufacturers

involving defective products. Ben is a

graduate of Cumberland School of Law.

Perhaps the single most important component in vehicle safety is a

reliable tire. When investigating a claim involving a serious injury or

death, it is important to inspect the tires of all the vehicles involved

in the crash. You may discover that a tire defect, tires that are too old

and degraded, or tires that were subject to recall contributed to the

accident. We hope this book will help you to know what questions to

ask as you evaluate your potential tire case, and how to get started.

By Benjamin E. Baker

Tire Litigation: A Primer By Benjamin E. Baker Produced by the law firm of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. 218 Commerce Street Montgomery, Alabama 36104 (334) 269-2343 © 2017 Beasley Allen Law Firm All Rights Reserved Published 2017 Printed in the United States of America First Edition Every effort has been made to ensure the accuracy of the information herein. However, author and Beasley Allen Law Firm are not responsible for any errors or omissions which might have occurred.

Introduction Chapter 1 – What is a Tire Defect Case? Chapter 2 – Investigation / Evaluation

Do You Have a Lawsuit? What is The Product? Who Made the Product?

The DOT Number Purchase / Tire Maintenance

The Proper Application Vehicle door placard Proper tire size

The Collection and Preservation of Evidence The Expert Tire Inspection

Chapter 3 – Common Litigation Issues

Design Defects Belt wedge & Nylon wrap / cap ply Inadequate rubber compounding Improper cure temperature Poor Inner Liner Design

Manufacturing Defects Liner pattern marks Trapped air Poor belt alignment Premature oxidation Inner liner splice Porosity Foreign material contamination

Warning Defects Vehicle Handling Issues

1

5

1516202223263030313845

47484953545456565960727475767879

Importer Liability Tire Aging

Automaker recommendations Retailer Liability

Tire recalls Chapter 4 – Typical Defenses

Under inflation Overloading Maintenance Impact damage Improper repairs Punctures Driver actions

Conclusion Acknowledgments Citations Index

8286888991

9394969797989899

101

103104108

"I fell asleep, and when I woke up, I was outside of the bus. […] People had to tell me what happened and what was going on."1 “What was going on” was that this teenager’s bus blew a front tire while taking him and his teammates to a football game.2 Another survivor, who had also been asleep, was awakened by the sound of the blow-out.3 The bus was forced into a guardrail and concrete bridge column.4 This teenager was lucky, as were more than forty others, but four died at the scene – two of whom had been thrown from the bus as well, but their injuries were fatal.5 Among the dead was a 10-year-old boy.6

֎ A jailer assisted two prisoners’ escape.7 The jail break resulted in a high-speed chase with police.8 The suspects initially escaped capture because the deputy in pursuit was hindered by a tire blowout.9

֎ A husband and wife had traveled to the beach for a long weekend to spend time with family and friends. As they returned home, traveling on the Interstate, the driver heard a “thud” in the right rear wheel well. The next thing he remembers was the rear of the vehicle swinging “wildly.” The vehicle left the road and overturned. Although properly belted, his wife did not survive the wreck. The right rear tire suffered a tread belt separation, even though the tread depth was half worn on the tire.

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֎

These stories are just three out of thousands and thousands that depict the catastrophes that can result from tire blowouts and tread belt separations. Why did these blowouts happen? Had the driver run over a nail recently? How about a new car’s tires? These are the types of questions asked by victims of tire failures who may approach you, asking if they can sue someone for their damages and losses. “What should I be looking for?” This is the question that is most often asked of me by lawyers who I meet or with whom I have been associated to work on litigation matters. For more than twenty years, I have focused on working on complex products liability cases, primarily automotive crashworthiness and tire defect-related cases. These cases can be very complicated and require an understanding and consideration for engineering and safety principles that apply to the manufacture and design of automobiles and the tires used on automobiles. Most of the cases that I have litigated involved single vehicle accidents where individuals were seriously injured or killed as a result of product design or manufacturing defects. Had manufacturers simply followed recognized engineering safety standards or industry protocols, the injuries and deaths could have been avoided. Since I have been asked so many times over the years what to look for when attempting to identify a potential products liability case, I decided to put together this book as a primer to understanding what to look for in a potential tire defect case.

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This book is only a primer to give lawyers an idea of the factors and issues that should be considered when evaluating a potential defect case. I have not attempted to touch on every issue or topic, but merely provide lawyers with the basics of what they should be considering when a potential client presents themselves at their office.

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“It is a well-accepted principle throughout the tire industry that the fatigue life of a tire should exceed its tread life by some design/ safety margin for reasonably foreseeable service conditions.”10 More than 11,000 crashes in the United States a year, at least, are due to tire failure issues.11 This fact alone makes clear how necessary tire litigation is but obscures the complexities and variables in each situation and every potential lawsuit. Tire defect cases can cover a multitude of potential products liability issues. Tires can fail based upon their design, their manufacture, or the installation process. For example, tires can fail in their sidewalls, and injuries can occur as a result of explosions that can occur when mounting tires on multi-piece rims. Tire failures, blowouts and detreads are foreseeable and preventable events. As noted above, manufacturers know that tire treads will wear with proper use and at some point fail if not serviced properly and replaced after their intended period of use has expired. Most new tires made today are estimated to last between 60,000 and 80,000 miles. Obvious tire defects may be detected with a visual or cursory surface inspection when the tire is first installed and inflated. These include bulges, lumps, cracks and noticeable air leakage. Technicians should be checking for tire defects when any service work is done on the vehicle and its tires. Additionally, there can be catastrophic events when tire installers attempt to install tires on the wrong size rim. This is sometimes called a “mismatch” circumstance. As I will discuss later in more detail, tire tread separation can be caused by bonding problems in the tire manufacturing process, contaminants introduced into the tire during the tire making process, under-vulcanization, old ingredients, improper sized

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components, or something as simple as air being trapped in between the layers of the tire during manufacturing. Detreading of these defective tires can result in single- or multi-vehicle accidents, or even rollovers. Even the auto manufacturers agree that drivers should have the ability to pull over, not roll over, when a tire detreads. But that is unfortunately not always the case. Rather than attempt to address all the potential tire defect issues, this book will be limited to late-life catastrophic tire failures on vehicles that are traveling at highway speeds and suffer a tread belt separation or delamination. (See Fig. 1, 2, 3 and 4)

Fig. 1

7

Fig. 2

Fig. 3

8

Fig. 4 Oftentimes, these events cause vehicles to become uncontrollable and result in serious injuries and death. (See Fig. 5a and 5b)

Fig. 5a

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Fig. 5b One of the most famous examples of this type of tire litigation is the Ford/Firestone litigation involving the Firestone ATX, ATXII, and Wilderness AT tires that resulted in congressional hearings in 2000 regarding the numerous injuries and deaths caused by the tread belt separation failures of these tires when paired with the Ford Explorer. “I felt my eyes rolling and I felt blood on my face,” recalled Dr. Hoel Rodriguez.12 How did he sustain these injuries? His Ford Explorer had rolled over after a Bridgestone/Firestone tire failure.13 His sister-in-law’s injuries resulted in permanent paralysis.14 Five months after this accident and after 203 deaths and more than 700 injuries, Firestone finally recalled 6.5 million of its tires.15 When offered a $6 million settlement, the Rodriguez family reportedly declined and instead demanded $100 million.16 The plaintiffs’ attorney addressed the jury in his opening remarks by saying, "Firestone failed to take appropriate steps to keep families from using this tire. […] This corporation put money over the safety of its customers."17

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Sadly, these defects first became evident years earlier – in 1996; documentary evidence proved that a Ford Explorer did a full flip after a trainee test driver merely changed lanes at just over 50 mph.18 One attorney reported having his first Firestone/Ford Explorer case in 1998; then he began to see more and more similar cases.19 In one of those cases, he sent the defective tire to a local expert who replied, “I have a room full of them.”20 The expert’s response made the lawyer realize what was happening; he said, "I'm just a two-man law firm in Coral Gables, Fla., and the trend was obvious to me."21 The Ford/Firestone litigation raised awareness of vehicle handling sensitivity when a vehicle experiences a tread belt separation. The litigation brought to light the necessity of a manufacturer’s attention to significant and repeated numbers of failures in its products.

“Mr. Speaker, according to NHTSA, rollovers are the second most common type of fatal crash after head-on crashes for all cars – but it is the most common type of fatal crash for light trucks, which includes SUVs, pickup trucks and minivans. […] After all, protecting the public and making sure that the agency charged with automotive safety issues has the resources to do its job is really where the ‘rubber meets the road’ on this policy issue […].”22

On October 10, 2000, Congressman Edward Markey of Massachusetts gave the above speech on the Floor of the House of Representatives in favor of the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act.23 The Ford/Firestone litigation resulted in this legislation, which requires manufacturers to monitor and report specific product failures to the National Highway Traffic Safety Administration (NHTSA) as an early warning system to recognize safety defect

11

trends in products that may represent a significant hazard to consumers. The Ford/Firestone litigation also revealed that there can be significant issues related to the design and manufacture of tires that, if not properly addressed through engineering, can result in premature catastrophic tire failures, which could otherwise be avoided through the use of well-recognized and accepted countermeasures to increase the robustness of any passenger or light truck tire design. Late-life tire failures represent a significant safety problem for consumers. Data from the National Automotive Sampling System-Crashworthiness Data System (NASS-CDS) shows that from 1995 through 2006 there were an estimated 17,019 tow away crashes per year as a result of “blow-outs or flat tires.” These incidents resulted in 386 fatalities and 11,005 non-fatal injuries.24 (Fig. 6)

Table 1: Light Vehicle Tire-related Crashes, Fatalities and Injuries (Annual Averages)

NASS-CDS 1995-2006 2007-2010 Crashes 17,019 11,047 Fatalities 386 195 Injuries 11,005 6,361

Fig. 6 (Table 1 from Pg. 13 of the NHTSA report referenced above.) In the same time frame, there were 6,024,000 overall police-reported crashes. The overall fatality rate for these was 41,059 fatalities. More recent data spanning 2007 to 2010 shows 11,047 tow-away crashes per year related to “blow-outs or flat tires.” During this time period, the fatalities were shown to be 195 with 6,361 non-fatal injuries.25 Hundreds of deaths and thousands of injuries from tire failure should motivate preventative action because even one death or injury is too many. But, sadly, manufacturers often refuse to take

12

the necessary safety precautions until their carelessness is revealed in a courtroom. Thus, your case may prove to help the lives of not only the current victims – your clients – but also the lives of potentially thousands of other drivers and passengers.

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Do You Have a Lawsuit?26 Any products liability lawsuit, and particularly a tire defect case, is very expensive to pursue. Products litigation requires the expense of retaining multiple expert engineers, medical experts, and often the expense of buying multiple products for testing. There are many issues that go into proving that a tire defect proximately caused an accident and/or injuries to a client. Thus, having experts to support your claim is essential to moving forward with filing a lawsuit. Experts can assist you in drafting discovery and narrowing your search for relevant industry information. Tire defect cases require the retention of very experienced and knowledgeable experts in the following areas:

(1) accident reconstruction; (2) tire design and manufacturing defects; and (3) injury causation or biomechanical issues.

Additionally, in order to respond to a manufacturer’s defenses, it is often necessary to have a vehicle handling expert that can explain why the driver lost control in the tread belt separation event. Depending on the type of case, it may also be necessary to employ specialized medical care experts that can provide information related to past and future medical care needs that could include a life care plan. Lastly, in cases where there has been a death or the need for lifelong medical care, it is not unusual to require the services of an expert economist who can explain the present day value of the economic losses suffered by a client. The cost of proving a tire defect case can quickly rise to $250,000 to $500,000. Therefore, to pursue a tire defect case, it often requires significant non-fatal catastrophic injuries or death to justify the time and expense that is necessary to put together the team that will be needed to prove a tire defect case.

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One of the best ways to determine whether you have a lawsuit depends on whether you have the factors to establish the lawsuit “Triangle.”27 The lawsuit Triangle consists of the following factors (Fig. 7):

1. Liability 2. Damages 3. Solvent Defendant

In evaluating whether you have a tire defect lawsuit, if any one of these three factors or “sides” of the lawsuit Triangle is missing, then you should not move forward with the lawsuit. For example, we investigated a case that involved one fatality and multiple injuries where an SUV suffered a rear axle tread belt separation while traveling on the Interstate. The tire itself had recently been purchased used from a local retailer that sold mostly used tires. At the time the tire was purchased, the tire was more than ten years old. When the tire was analyzed after the wreck, there was evidence that a nail had penetrated the tread and the inner liner for the tire.

17

Additionally, physical evidence on the tire indicated that there were a number of maintenance related issues that may have contributed to the failure of the tire. Based on this evidence, there did not appear to be a defect in the tire that caused it to fail. However, there was a potential issue of retailer liability for selling a used tire that was more than ten years old. Further investigation revealed that the local retailer had no liability insurance to cover the sale of the used tire. Therefore, when plugging these factors into the lawsuit triangle, it was clear that there was no liability as it related to the design or manufacture of the tire. However, though there was potential liability against the local retailer, it was not a solvent defendant. Thus, we did not have the necessary factors to create the litigation triangle. Unfortunately for the clients, we were required to turn down the case since there was no way to obtain a recovery for the clients. Assuming that your potential case meets the requirements of the “Triangle,” then you should determine if the potential case has factors necessary to support the lawsuit “Square.”28 A lawsuit “Square” requires an evaluation of the following (Fig. 8):

1. Jurisdiction/Venue 2. Defense Attorney 3. Plaintiff’s Expert Witness(es) 4. Plaintiff’s Appearance and Demeanor

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While the “Triangle” and the “Square” intersect in ways, the “Square” is more about the quality of the potential suit as opposed to whether the suit should be brought at all. Some of the “Square” factors may be unknown or not as favorable but may still justify bringing the lawsuit. If any of the “Triangle” factors are missing, the lawsuit should not be filed. When considering the “Square,” always keep in mind what a well-learned defense attorney can do with these factors to use them against you. If these factors weigh more heavily against you and benefit the defendant more, then the case evaluation would weigh on the side of not filing. But in no event should a complex tire defect product case be filed if the “Triangle” factors cannot be met.

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What is the Product? It is the rubber that meets the road, and it is the air within that rubber that keeps the car rolling.29 Tires are the only thing between the driver and passengers and the ground – between the vehicle passengers and a wreck.30 Tires are often called pneumatic tires.31 For example, radial tires – the most typically used – are constructed with plies of fabric or steel cords, aligned 90 degrees to the beads.32 Additional tread plies ensure stability of direction and resistance to punctures.33 Plies are cords twisted into cables, “laid side by side” and covered in rubber to create a uniform sheet.34 The tire industry explains the process in more detail:

The basic manufacturing process for a radial tire starts with a thin layer of air-tight synthetic rubber called an innerliner. The casing ply is then added before two strong hoops of steel wire called bead bundles are put in place to anchor the sidewall ply and eventually hold the tire against the rim. Next, the casing ply is folded over the beads before the sidewall and bead rubber is added. Then a special drum shapes the tire so an even number of tread plies can be positioned on the casing under the tread.35

Every tire contains some natural rubber, regardless of the manufacturer or design.36 But the rubber has to be mixed with carbon black, silica, sulfur, synthetic rubber, and many other ingredients – with as many as 200 compounds.37 The purpose of the tires determines what ingredients are used.38 Snow, all-terrain

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tires have different properties more suitable to traction than touring tires, which are built for mileage on paved roads.39 The rubber mixture is then formed into an uncured tire, called a “green tire.”40 The green tire is placed into a mold with tread design and information on the sidewall (to be discussed further later); the tire is shaped and pressed against the mold by inflating it with hot water or steam.41 Next, the tire is vulcanized – the process of heating the rubber to cure it and bond the ingredients.42 After vulcanizing the tire and removing it from the mold, it is thoroughly inspected for bubbles, voids in the tread or other part of the tire, and other flaws.43 Lastly, it is tested by spinning on a test wheel before being available for distribution.44 This is only a generic description of the tire manufacturing process. During discovery, it may be necessary to determine if a particular manufacturer has a process that differs in any way from the generic tire manufacturing process.

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Who Made the Product?

Once it is determined that there is a viable case to pursue, you must identify the tire product and its manufacturer, so you can file suit and develop appropriate discovery to prove your case. Manufacturers that produce tires within the United States include BFGoodrich, Cooper, Firestone, Dunlop, Goodyear, Michelin, and Yokohama.45 But even these tires are an international effort.46 Michelin is based in France, and Firestone is owned by Bridgestone, which is a Japanese company, just as Yokohama is.47 Even more complex is that Goodyear has been known to build tires not just in the U.S. but also in Canada, Chile, and Germany.48 Michelin builds tires in Italy and Spain, besides the U.S., though none in France – despite the company’s headquarters in France.49 China has even begun flooding the U.S. market with tires. In a tire defect case, the tire itself is going to provide you with most of the information you need about identifying the manufacturer. In most cases, the name of the manufacturer is going to be stamped on the side of the tire in some form or fashion. (Fig. 9)

Fig. 9

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In other instances, tires will have a name brand stamped on the side that does not necessarily provide any indication of who the manufacturer is. (Fig. 10)

Fig. 10 In such instances, you must rely on other information that is provided with the tire.

The DOT Number The sidewall of each tire is stamped with information that can assist you – most important, with the Department of Transportation, or DOT, number. The DOT number will include information such as the manufacturer and plant code, tire size code as well as optional code information that could identify a manufacturer’s specific brand. (Fig. 11 50)

23

Fig

. 11

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Federal law requires that each tire sold include a DOT number that indicates the tire has met or exceeded Federal Motor Vehicle Safety Standards related to the new tire performance requirements established by the Federal Government. The DOT number is not always on the side of the tire that faces out (often called the serial opposite side of the tire). The DOT number can often times be found on the side of the tire that is turned inward toward the vehicle (known as the serial side). As shown below, the DOT number is readily identifiable as it begins with “DOT.” (Fig.12) The DOT code includes a code to identify the manufacturer, as well as the identification of the plant where the tire was manufactured. Finally, a DOT number should end in four digits, known as the date code, which indicate the week and year of manufacture.

Fig. 12 – Image courtesy Safercar.gov/NHTSA If the tire was manufactured before the year 2000, it most likely will not end with the typical four digits shown in Fig. 12. Since 2000 the date code has four digits. The first two digits are the week of the year (01 = first week of January); the third digit (for tires made before 2000) is the year (1 =1991). For most tires made after

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2000, the third and fourth digits are the year (04 = 2004). So if the date code reads 0806, the tire was manufactured in the eighth week of 2006. Again, as mentioned above, please note that the four-digit week and year of manufacture code was not necessarily required until the year 2000; thus, some tires manufactured before the year 2000 may not contain a four-digit code as to the week and year of manufacture. Thus, a tire with a three-digit date code can be a first warning sign that a tire may be dangerously old. The date upon which a tire is manufactured can be important information depending on the issues that are raised in the case. More about these specific issues will be discussed below.

Purchase / Tire Maintenance Some of the important information to collect during the initial case evaluation will relate to the identification of the retailer that sold the defective tire and/or installer. In some jurisdictions, any entity within the distribution chain can be held liable for a defective product, including the retailer. However, another reason to identify the retailer or installer is for independent torts and/or to obtain information to respond to certain defenses raised by the manufacturer. Manufacturers will argue, “With no dependable system in place to ensure tire safety, it falls to the consumer to be vigilant.” Statistics to keep in mind as you are preparing for likely defenses include that a recent National Highway Traffic Safety Administration (NHTSA) report revealed that 9 percent of passenger cars on U.S. roadways are driven with at least one bald tire. Additionally, the NHTSA says 27 percent of passenger cars on U.S. roadways are driven with one or more substantially underinflated tires. Manufacturers are sure to point to these statistics. However, these statistics also provide manufacturers with knowledge of forseeable

26

uses by consumers that should impact their design process and design safety margins. The government has created a website called “SaferCar.gov.” It includes an article called “Take Care of Your Tires: It’s about Safety and Savings,” which can give you more specific clues about the points manufacturers are likely to mention in their defense. Independent acts of the retailer could be the basis of liability in a tire failure case in addition to the defective condition of the tire and will be discussed below. At this point, it is important to note that any information that can be obtained regarding the history and use of the tire is important to diffusing a manufacturer’s contention that the tire was abused, run underinflated, run overloaded, or worn out. These defenses can be easily rebutted if there is a paper trail outlining the date of purchase for the subject tire as well as any maintenance and/or rotation history associated with the tire. This information will allow a claimant to specifically identify the mileage of the tire, how long the tire has been in service, and the air pressure and loading conditions that the tire has seen in its operational history. While the absence of this information will not prevent pursuit of a claim, it is helpful information to have to combat issues that will be raised by the manufacturer. For example, in a recent case, we were able to obtain records through subpoenas from multiple tire service centers near our client’s home. The case involved the death of her husband due to the failure of a tire on his pickup truck. From the records, we were able to piece together a complete picture of the tire maintenance performed on his vehicle for approximately two years. The records identified the vehicle, the tire types and positions, and whether a rotation had occurred. The records also indicated the mileage of the vehicle at each servicing of the vehicle. It would have been helpful had the records provided

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the DOT numbers for each tire on the vehicle. Based on our experience, even though most service centers have a location in their records for DOT numbers, technicians rarely include this information in their recordkeeping. Additionally, if the tire has been repaired due to nail punctures or other road damage, maintenance records could indicate when such maintenance or repairs occurred on the tire in terms of mileage and/or time. This information can also be significant in proving tire defects and deflecting defenses raised by the manufacturer. Maintenance information can also provide a window into the amount of tread left on the tire at any given time in the history of the tire. This information can also explain how the tire was used and whether it has been abused during its service lifetime. Finally, the maintenance history can help identify whether any recalls relate to the tire and if the retailer was made aware of such recalls but failed to provide that information to the consumer. In another case, our client suffered quadriplegia following a tread belt separation on a full-size SUV. We began trying to piece together the maintenance history of her vehicle and tires. The records we were able to obtain provided us with information regarding multiple retailers that provided maintenance. We were also able to trace her vehicle back to a local vehicle dealership that had serviced her vehicle related to a recall on her tires. We were able to establish that the dealership improperly inspected her vehicle and, as a result, a recalled tire was left on the vehicle and ultimately failed. Maintenance records from another tire retailer allowed us to establish that the retailer also had information about the recall on the tire that had remained on the vehicle, but failed to inform our client that the tire was recalled. Because the initial records from the vehicle dealership showed that a tire recall inspection had occurred, we were able to follow up on that information and use

28

the recall information to show that others in the tire servicing industry breached their standard of care to our client.

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The Proper Application

Obtaining the information contained on the product will allow you to determine:

(1) the manufacturer of the tire (as discussed previously); (2) the date the tire was manufactured (as discussed

previously); (3) the size of the tire; (4) load range of the tire; and (5) maximum inflation for the tire and whether such a tire was

properly installed on the vehicle at issue in the case. Sometimes the wrong size or type tire has been installed on a vehicle, which can impact manufacture defenses related to the handling and stability of the vehicle and whether the plaintiff was negligent in using an inappropriate tire size or type on the vehicle. Vehicle Door Placard Nearly every passenger car and light truck on the road today contains some type of placard on the vehicle that states the tire size and inflation pressure for the vehicle that is recommended by the manufacturer. (Fig. 13 and 14)

Fig. 13– Image courtesy Safercar.gov/NHTSA

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Fig. 14– Image courtesy Safercar.gov/NHTSA Proper tire size It is not uncommon for a manufacturer to claim that a wreck was caused because the owner/driver had improper tire sizes or improper tire inflation on the vehicle that contradicted those recommended by the manufacturer.

In Fig. 13 and 14, you can see that the automobile manufacturer has recommended a specific size tire be used on the vehicle along with the appropriate tire pressure for use with the vehicle. It is important to note that the tire pressure indicated on a vehicle door placard is often different than the maximum pounds-per-square inch (PSI) stamped on the sidewall of the tire. (Fig. 15)

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Fig. 15 The maximum PSI shown on the sidewall of a tire is the maximum amount of tire pressure that is acceptable for the design specifications for the tire. However, the vehicle manufacturer often provides a recommended tire pressure that is lower than the maximum amount to optimize vehicle handling and suspension qualities of the vehicle. When having a vehicle serviced by a retailer or tire servicer, this entity should be using the air pressure indicated on the door placard rather than the maximum amount shown on the sidewall of the tire. In many instances, retailers are unaware of this distinction and often put in the maximum amount stated on the sidewalls of the tire. Again, this is one of those issues that makes it important to obtain maintenance records if possible to see if the retailer was improperly servicing the tires, which could also give rise to independent claims against the tire servicers for a tire failure event. It is important to know the size of the tire because it can have an impact on the scope of discovery that is allowed and it will indicate whether it is a passenger tire or a light truck tire. The size

32

information on the side of the tire will also indicate the load index and speed information for the tire. (Fig. 16)

Fig. 16 51 As noted above, information on the side of the tire will also indicate the maximum load rating for the tire as well as the maximum permissible inflation pressure that can be used with the tire. (Fig. 17)

Fig. 17

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There is also a distinction between passenger tires and light truck tires (LT tires). Passenger tires come in a variety of sizes that fit on the typical passenger car or sedan. There are also large passenger tires that are designed for use on SUVs and pickup trucks. The design and make-up of passenger tires provides for a specific maximum loading and typically provides a softer, quieter ride for a vehicle.

A light truck tire, on the other hand, has design qualities that allow it to accept a much higher load-carrying capacity and oftentimes does not have as good of a ride as a passenger tire. Light truck tires also typically require significantly higher air pressure when compared to passenger tires. The difference between a passenger tire and a light truck tire often comes into play related to pickup trucks and/or large SUVs. It is not uncommon for large passenger tires designed for use on pickup trucks or large SUVs to be comparable in size to a light truck tire, but both are designed for significantly different uses. This difference can affect the handling and load carrying capabilities of the vehicle. These design differences can also change how a vehicle may respond in the event of catastrophic tire failure. The below exchanges on a blog highlight whether LT tires should be used on large vehicles such as SUVs or passenger trucks.

Saturday, April 25, 2015 by Alfred If I switch from a P-rated tire to LT-rated tire, should I increase tire pressure, or just follow what's on the door jamb (the sticker that says the recommended tire pressures, but that was for P-rated tires).

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Wednesday, April 29, 2015 by Tire Rack Team Alfred, You should stick with your factory pressure to insure TPMS sensors continue to function correctly and to preserve ride comfort. Running an LT tire at higher pressures will increase load carrying capacity, but will also stiffen the ride considerably. Wednesday, May 20, 2015 by Gary I'm considering replacing the current P-metric tires on my 2006 Nissan Frontier. Other than reduced fuel mileage and maybe reduced ride quality/comfort, are there any other potential negatives to moving to LT tires? For example, does the extra tire weight and stiffness of an LT tire introduce handling or safety issues in particular situations? Thanks very much. Saturday, June 4, 2016 by Jeremy I have an old town and country van thinking of putting LT tires on it. I have a big family and we need to drive 8 hrs on interstate to see grandparents would LT tires last longer on this van after all of use and stuff we pack that van full Tuesday, June 7, 2016 by Tire Rack Team Jeremy, Under heavy loads, an LT tire should wear better. -- [email protected] Friday, September 2, 2016 by Max I have a jeep Wrangler 2013 moab édition That comes with p 245 75 R 17. I Want to buy an all weather tires ... Most are LT tires... Should i consider them or tryin to find a good one in P size?

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Thursday, September 8, 2016 by Tire Rack Team Max, There is no reason you couldn't use an LT tire. LT tires would not be any better or worse in a given situation compared to the P counterpart (outside of load capacity and ride comfort).52

Unfortunately, what the Tire Rack Team members above are ignoring is that the LT tires usually have a higher maximum PSI and load carrying capacity. Thus, underinflating the tires to match the “door jamb” recommended PSI can be dangerous. In addition, as discussed more later, manufacturer recommendations take design aspects into consideration. Driving a passenger vehicle with tires designed for a vehicle with heavier loads can cause potentially dangerous vehicle handling issues in the event of an emergency or tire failure. For this reason, it is important to note whether the vehicle involved in a specific incident has the type and size tires recommended by the manufacturer. If the vehicle does not have the recommended tire size or design application, it is not necessarily fatal to a case but becomes an issue that would otherwise not be relevant. Manufacturers will often seize on this issue even though it is not a factor in the tire failure or the loss of control following a tread belt separation.

In another case, our client lost control of a pickup truck as a result of a rear tire tread belt separation. The tires on the rear of the truck were a larger size than those recommended by the vehicle manufacturer on the door placard. The tire manufacturer defendant argued that the plaintiff was at fault for installing tires that were oversized. However, we were able to show that these tires had actually been placed on the vehicle by a local retailer. We were also able to show through expert testimony that the truck manufacturer recommended the larger size tire for the model truck as an option.

36

As a result, we were able to respond to this defense by showing that it was the tire professional who had recommended placement of these tires on the vehicle, not our client. However, in this specific case, our vehicle handling expert offered the opinion that the slightly oversized tires did not cause or contribute to the loss of vehicle control, but rather that it was the tread separation event that was a proximate cause of the wreck. The fact that the same size tire was allowable as an option was also helpful.

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The Collection and Preservation of Evidence It is axiomatic in a product liability action that without the product, it is almost always impossible to go forward with filing suit. This is no different in a tire defect case. In order to establish that there is a design or manufacturing defect in a specific tire, it is necessary to have possession of the tire for an expert to evaluate. It is also important to obtain any tread or belt pieces that have detached from the carcass of the tire. (Fig. 18)

Fig. 18 However, it is not always necessary to have the tread belt pieces in order to pursue a defective tire case. It is not uncommon for the detached tread belt piece to be lost along the highway or not collected by police or first responders following a wreck. Therefore, once you are asked to investigate such a case, it is important to go to the scene to determine if there is any physical tread or tread belt evidence at the scene.

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If so, this evidence should be photographed and its location marked for future reference. (Fig. 19)

Fig. 19 It is also important to collect this evidence and preserve it during the course of the litigation as both sides will want to inspect it. All parties will likely request to inspect any evidence collected from the scene. It is important to maintain proper chain of custody for such evidence and document its condition to ensure no inspecting party alters or damages the evidence. In one case, we were investigating a potential tire failure case involving a pickup truck. The wreck report specifically indicated that there was a “blow-out” of one of the tires on the vehicle. However, when we found the vehicle, there were only three tires with the vehicle. For some reason, the police and wrecker service responding to the accident did not bother to search the scene for the failed tire. We went to inspect the scene of the wreck and after an extensive search were able to locate the failed tire that had separated from

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the vehicle during the rollover sequence. It ended up several hundred yards from the resting point of the vehicle, across the road in tall grass. Our inspection of the scene also found the long piece of detached tread still on the scene of the accident. We documented the location of the tire as well as the tread piece through photographs. We also indicated on the roadway by identifying paint marks where the tread piece had been located. Later in the investigation, we were able to meet eye witnesses at the scene of the wreck who were able to provide us with specific references to where the tread piece had actually been deposited during the wreck sequence. One of the witnesses was able to tell us that they actually picked the tread piece up and moved it to the location where we found it during our scene inspection. This is one example of many where it is important to thoroughly inspect the scene of a wreck and follow up with witnesses. Had we not done so, the actual tire that failed may never have been found or located by anyone investigating the wreck. The scene of the wreck will also hold significant evidence related to vehicle movements and can also include physical evidence indicating when the tread belt separation event occurred. (Fig. 20)

Fig. 20

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If it is a case where the tire lost air as part of the tread separation event, there can be physical evidence indicating when the air loss occurred. (Fig. 21)

Fig. 21 For these and other reasons, it is important to photograph and document any evidence on the scene as soon as possible. This can be done by an experienced investigator or by employing an accident reconstruction expert as soon as possible. An accident reconstructionist will often photograph and survey the accident scene identifying all potential evidence in order to create a scene diagram that can be used to help explain the vehicle movements and tire failure sequence of events. Thus, an accident reconstruction expert helps you determine important factors including the following:

The vehicle’s movements before, during, and after the tire failure;

The vehicle’s speeds before, during and after the tread separation; and

The vehicle’s response to the tread separation event. In the most catastrophic tread separation tire failure events, there will be claims by the manufacturer that the tire failure event was

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controllable and that the “over reaction” of the driver was the proximate cause of the wreck. Therefore, vehicle handling and movements during the tread separation event will become relevant. For this reason, it is important to locate and obtain the vehicle and preserve it for the duration of the case. (Fig. 22)

Fig. 22 In many instances, the vehicle can be bought for salvage from the insurance company or wrecker yard that retrieved it from the accident scene. The vehicle should be preserved in its post-wreck condition and kept under cover if possible. The vehicle can also contain evidence related to vehicle movements and injury causation if that becomes an issue in the case. For example, manufacturers will sometimes claim that a vehicle occupant was not wearing a seat belt and argue that if they had been belted, they would not have received injuries. There may also be vehicle defects that allow for additional claims related to the injuries that have been caused, i.e. a seatbelt failure or airbag defect as an example.

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In some instances, there may be vehicle-related handling defects that can give rise to vehicle defect claims under the circumstances. For example, in the Ford/Firestone litigation, the Explorer was often blamed as having a handling defect that caused it to go out of control in the event of a rear tire tread belt tire separation. The vehicle can also be a good source of physical information to establish an interaction between the tread belt flap that separates from the tire. (Figs. 23 and 24)

Fig. 23

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Fig. 24 When the tread belt separates from the vehicle, it can interact with the vehicle causing a braking effect, causing the vehicle to pull in a certain direction toward the tire failure. Additionally, there have been occasions where the detaching tread belt flap has wrapped around a brake line actuating the vehicle brakes and causing more severe vehicle reactions. Therefore, the vehicle itself can be a treasure trove of evidence regarding the specific incident being investigated.

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The Expert Tire Inspection One of the most significant pre-suit evaluations that should occur is an inspection of the failed tire by a qualified tire failure expert. It is not unusual for an initial examination of a failed tire to cost $5,000 or more. An expert will typically perform a visual and tactile inspection that is non-destructive in nature. In fact, the expert should take extreme care not to destroy or alter any of the physical evidence with respect to the tire. However, it is not unusual for experts to use chalk or other tire markers to designate the time or degree locations on the tire in order to perform an orderly inspection of the physical evidence. These type of markings are not considered destructive or altering of the evidence. However, manufacturers have at times challenged an expert claiming that they altered evidence by placing these marks on a failed tire. To my knowledge, none of these arguments have been successful in excluding expert opinions. A qualified tire expert can also obtain x-rays of the failed tire in order to get a better look at the construction of the tire and any anomalies that may exist in the tire. Again, this is a non-destructive evaluation. X-rays allow an expert to see belt placements that exist in the tire. (Fig. 25)

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Fig. 25 The expert oftentimes will examine companion tires to get a better idea about the history and use of the failed tire. If there are companion tires that are of the same brand and type, shearography may be considered as part of additional non-destructive analysis. Shearography is a process that allows the expert to examine the non-damaged tire to identify whether the companion tires are also exhibiting signs of tread belt failure and separations, which would be evidence to support the claim that the failed tire was defective in design or manufacture. For this reason, companion tires should also be obtained and maintained if possible.

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Design Defects Tire design is complex and requires an acceptable margin of safety for foreseeable service conditions. A tire’s tread should not separate while it still has tread life.53 Steel-belted radial pneumatic tires have essentially been in existence since the 1940s. However, the outdated bias-ply tire construction maintained a large market share in the United States until the late 1960s. Nonetheless, tire manufacturers began to recognize early on that the steel-belted construction of pneumatic tires had a persistent problem of belt edge separations that posed significant durability and safety problems. Almost as early as the steel-belted radial tire became widely used, tire manufacturers began looking at ways to design out the phenomenon of belt edge separations. In fact, in 1965, Michelin filed for a patent in the United States with the intention of reducing the occurrence of belt edge separations caused by movement of the steel belts at the shoulder’s edge.54 Over the years, nearly all of the major tire manufacturers including Michelin, Bridgestone, Dunlop, Goodyear, Uniroyal and others filed patents through the 1960s into the 2000s offering different inventions, all with similar applications and designs for limiting or reducing belt edge separations so as to increase the durability of steel-belted radial tires.55 Uniroyal described this prevalent problem of belt edge separations in a patent filed in 1973 in the United States Patent Office as follows:

[Radial tires] frequently fail at high speeds because separations occur in the shoulder zones of the tires where the edges of the belt plies are located. Such ply separations are due to the cord ends at the edges

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of the belt plies becoming detached from the surrounding rubber under the effects of centrifugal force acting on the tire, and this result is made even more likely by the fact that the cords or cables and the belt plies, being disposed obliquely to the median equatorial plane of the tire by virtue of said plies being out obliquely with respect to said longitudinal direction of the cords or cables therein, have a natural tendency to spread apart or open in a fan-wise direction at their cut ends. The edges of the belt thus constitute zones or regions where the cut and free ends of the reinforcing elements, i.e. the cords or cables by friction and by cutting, cause breaks both in the carcass plies and in the tread rubber of the tire.56

Today, “a steel-belted radial tire has several components, including an inner liner, two polyester body plies, two steel belts, two bead reinforcing strips, the sidewall rubber and a tread.”57 The part of the tire that endures the most stress and heat is the belt edge.58 The sharp edges where the steel belts are cut gradually deteriorate the surrounding rubber.59 Following is a non-exhaustive discussion of potential design defects that can result in premature belt edge tire failure.

Belt wedge & Nylon wrap /cap ply Patents filed by tire manufacturers since the 1960s have offered two primary design alternatives that have been used separately and in conjunction with each other to eliminate the frequent failure mode related to belt edge separations. (Fig. 26)

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Fig. 26 Manufacturers have suggested using a belt wedge, which is a rubber component placed between the two steel belts, to prevent or reduce the ability of the belts to rub against each other causing the belts to ultimately detach, and reduce the durability of the tire shoulder area. Some tire manufacturers have used belt wedges with great success in improving tire durability. In some instances, the belt wedge design used by particular manufacturers was not

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sufficient in managing the stress, strain and heat seen at the belt’s edge. For example, the tires that were subject to the Ford/Firestone Congressional investigation used wedges that were determined to be insufficient in size. However, despite the revelations of the Congressional investigation about the usefulness of belt wedges, many manufacturers continue to design and sell tires that do not include belt wedges. The use of a belt wedge is an additional component and adds cost to the tires. Although the cost is minimum per tire, some manufacturers have decided to avoid the additional cost and continue to sell tires without belt wedges despite the added safety benefit. Another alternative design that is employed to reduce belt edge failures is a nylon wrap or cap ply. (Fig. 27)

Fig. 27 60 Manufacturers often argue that cap plies are only suitable for high-performance tires. However, nylon is often found in all variety of tires. A cap ply is made of nylon or other similar material and is placed on top of the belts and below the tread material. Cap plies have also been installed along the belt edge and shoulders of the tire as an additional component known as cap strips. (Fig. 28)

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Fig. 28 61 The usefulness of cap plies and their ability to increase belt edge durability has been well-known for decades.62 This method of tire design has been used and implemented successfully for decades in Europe. However, American tire manufacturers have resisted the use of this additional component until recently. In litigation, tire manufacturers will tell you that cap plies are only useful for high speed or high performance tires. But proving that your tire’s manufacturer failed to include a cap ply could be beneficial to your case, as it was for the plaintiffs in Mascarenes v. Cooper Tire & Rubber (Georgia) and Idar v. Cooper Tire & Rubber (Texas).63 The plaintiff won a punitive damage claim in Mascarenes because the federal court took note that usage of cap plies has been prevalent in the tire industry for decades.64 Despite the usefulness of cap plies and the long track record of improving the durability of tires, steel-belted radial tires are still sold in the United States without this feature. It is possible to include both cap plies and belt wedges as components to reduce the stress, strain, and heat generated at the belt edges and increase the durability of tire belt edges. (Fig. 29)

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Fig. 29 65 Inadequate rubber compounding The rubber compound used to encapsulate steel wires or fabric reinforcement in a tire structure is often referred to as “skim stock.” Skim stock formulas are typically proprietary information developed and formulated by each individual tire manufacturer. If a manufacturer has identified that a particular tire line or tire design is experiencing uncharacteristically high tread separations, it could be as a result of inadequate rubber compounding design associated with the skim stock used to encapsulate the steel belts. If a manufacturer’s adjustment data is showing particularly high tread separations, it may be due to the lack of a robust skim stock formula. In some cases, discovery can reveal a manufacturer has identified inadequate compounding and a need for a more robust skim stock to reduce the nature and frequency of tread belt separations.

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Improper cure temperature Every tire goes through a curing or vulcanization process to bind the rubber components of a tire together to create the “cured” tire that is sold to consumers. Each manufacturer has typically developed a range of temperatures and cure times associated with its particular tire lines that allow for optimized properties of bonding during the vulcanization process that will prevent premature failure through improper curing and lack of adequate bonding. Improper curing can occur in a tire that is overcured or undercured. In an overcured tire, the rubber properties are not optimized because the bonds among the rubber layers and components are too rapidly formed and the components do not properly bond. This can also result in reduced tear strength of the rubber components. A tire that is overcured can result from being cured too long or at too high of a temperature. An undercured condition occurs when the tire is not cured at a high enough temperature and/or not cured long enough. An undercured tire can experience high levels of porosity due to lack of adequate bonding among the component parts. Additionally, when examining certain manufacturers’ documents, the manufacturer may have identified specific cure times and temperatures that optimize its specific designs. If a manufacturer refuses to use those optimized cured times and temperatures, it could result in an improperly cured tire that can fail prematurely and/or lack suitable durability.

Poor Inner Liner Design An inadequate inner liner can also be the basis of a tire defect claim. Unlike early tires, today’s steel-belted radial tires do not include separate inner tubes. The inner tube is in essence built into the tire and known as the “inner liner.” The purpose of the inner

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liner is to prevent the escape of the compressed air that inflates the tire. While it is impossible to prevent the escape of all air, the purpose of proper tire design is to reduce the escaping air from the tire to the largest extent possible, especially by preventing air and moisture from passing into the internal components of the tire. If compressed air and moisture are allowed to move through the other rubber components of the tire, it can accelerate the oxidative degradation of the rubber components and cause premature failure. In most modern tires, the primary ingredient used to create inner liners that prevents the escape of compressed air and moisture is Halobutyl. Studies have consistently shown that the higher level of Halobutyl in the inner liner, the less likely air is to escape from the tire. However, one of the most expensive components of a tire is Halobutyl. For this reason, tire manufacturers often manipulate the level of Halobutyl to reduce cost while attempting to reduce air loss. The thickness of the inner liner can also be an issue regarding the performance and durability of a tire. Therefore, a properly designed tire requires sufficient inner liner thickness once the tire has been cured or vulcanized to ensure a safe design.

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Manufacturing Defects

Each manufacturer has developed manufacturing specifications that govern the process for making each specific tire design.66 But invariably, mistakes are made. It is these mistakes “built into” the tire during manufacturing that are crucial to a tire case. The term “manufacturing defects” typically refers to the reasons why a tire does not meet the design or manufacturing specifications of the tire maker. Typically, manufacturing defects will be associated with one or a few specific tires. This is in contrast to design defects that would apply to the entire line of tires. Manufacturing defects can be related to human errors, poor quality materials, and/or a lack of quality control in the manufacturing process steps. The following list is a non-exhaustive list of potential manufacturing defects.67

Liner pattern marks Many of the rubber components used in the manufacture of tires are stored in rolls and the specific pieces are separated by fabric or vinyl sheets (or liners). (Fig. 30-34)

Fig. 30

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Fig. 31

Fig. 32

57

Fig. 33

Fig. 34 The materials used to wrap the rubber components can sometimes leave pattern marks on the rubber components because they are soft and sticky before they are put through the vulcanization or curing process. If storage fabric liner marks remain in the rubber after the vulcanization process, it is evident that the tire lacked the proper

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bonding necessary to maintain its structural integrity. An experienced forensic tire expert will be able to identify the existence of liner pattern marks and whether the marks evidence a failure to properly manufacture the tire so that all components were properly bonded during the vulcanization process.

Trapped air Sometimes during the vulcanization process, air or water can be left between the component parts when a tire is cured. (Fig. 35, 36)

Fig. 35

Fig. 36

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If this occurs, it will create areas of trapped air or steam blisters that are actually voids within the finished tire. These areas also evidence areas within a tire where there is poor bonding because of the voids of air. In the areas where trapped air exists, there is no bonding of the rubber components and, therefore, no resistance to a tread separation event. In other words, the durability of the tire can be severely degraded. Poor belt alignment Steel-belted radial tires contain steel belts that increase the durability of the tire, but if improperly installed through various belt alignment defects, stress and strain at the belt edge can be increased, which can ultimately lead to more stress on the tire and result in a tread belt separation. More often than not, belt alignment defects are associated with poor quality control by the tire builder who misaligned the belts when constructing the tire. An x-ray of tires can often identify poor belt alignment defects. Belt alignment defects can take many forms including stacked belt endings, off-set belts, overlapped belt splices, dog-eared belt splices, scalloped belt edges and gapped belt splices. Stacked belts and offset belts refer to the positioning of the placement of the belts in a tire. Generally, there should be nearly equal offsets on each side of the belts. (Fig. 37, 38)

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Fig. 37

61

Fig. 38

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Overlapped belt splices create stiffened areas of a belt, which can increase the stress and strain of the tire in that specific region.68 (Fig. 39-41)

Fig. 39

63

Fig. 40

64

Fig. 41

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A dog-eared splice occurs when the belt is misaligned during the building process and results in a belt end edge sticking out creating a pointy piece of belt. Thus, a dog-eared splice alters the ability of a tire to manage the stress, strain and heat at the belt edges. (Fig. 42, 43.)

Fig. 42

66

Fig. 43

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Similar is a gapped belt splice, which is an enlarged splice between the belt ends. (Fig. 44, 45.) Gapped belt splices changes a tire’s ability to dissipate stress and strain during operation and alters the tire’s ability to properly manage stress as originally designed.

Fig. 44

68

Fig. 45

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Scalloped belts affect the belt edges creating uneven distortions within the belt at the shoulder, resulting in an inability to properly manage stress and strain. (Fig. 46, 47)

Fig. 46

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Fig. 47

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Premature oxidation Oxidation is a condition that all tires go through in their lifetime. Oxidation relates to the permeation of the compressed air along with moisture in the compressed air that moves from the inner liner into the component parts of the rubber tire. The compressed air or oxygen that moves through the component parts from the inner liner will break down the rubber components, causing them to become less elastic and more brittle. As the rubber materials of the tire break down due to oxidative degradation, cracks can form and move throughout the skim stock encapsulating the steel belts. (Fig. 48, 49)

Fig. 48

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Fig. 49

Most often, this happens at the cut ends of the belts, and the stresses and strains at this area can cause polishing that is evidence of oxidated degradation. Since all tires experience some level of oxidation, the defect pertains primarily to “premature” oxidated degradation. You can demonstrate that a tire’s oxidation is premature and occurred because of a design and manufacturing defect that existed when the tire was placed into the stream of commerce if:

1) the oxidational breakdown of the rubber occurred before the tire’s natural life expired, and

2) there was no other avenue for the air and moisture to enter the tire.

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Inner liner splice The inner liner is the material component of the tire that replaces what was previously known as an inner tube. The inner liner is a component part manufactured into the tire with the purpose of retaining the compressed air that fills the tire and pressurizes it. The inner liner is typically formed of a single component with the two ends being sealed together. The two ends of the inner liner will be slightly overlapped during the assembly process. If the tire is improperly manufactured, this overlapping splice can lift or separate. (Fig. 50, 51)

Fig. 50

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Fig. 51 There are numerous occurrences in the manufacturing process that can cause an inner liner splice to crack or open. No matter what the cause, cracks in the inner liner will cause air and moisture to be pushed through the inner components of the tire and result in premature degradation. Porosity

Porosity is a manufacturing condition that shows inadequate bonding during the curing process. Porosity shows that the rubber components failed to have complete contact with each other and, as a result, poor bonding occurs. Porosity reduces the surface area of the components that are in actual contact with each other and as a result, reduces the bonding between the components, which can cause a premature failure before tread life of the tire is exhausted. (Fig. 52, 53)

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Fig. 52

Fig. 53 Foreign material contamination A perhaps more interesting manufacturing defect is foreign material. Foreign material can be trapped inside a vulcanized tire and create areas where there is a lack of bonding that can cause premature failure of the tire.

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Foreign material can be lodged in a tire during the manufacturing process as a result of poor quality assurance processes. Foreign material can be anything not called for in the tire specification and can range from anything from nuts or bolts to pieces of wood. Proper training and quality assurance processes are vital to avoiding foreign objects being manufactured into tires. (Fig. 54)

Fig. 54

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Warning Defects

In addition to theories related to design and/or manufacturing defects, a failure to warn claim should also be considered. Tread belt separations and the hazard they pose to the traveling public are well-documented and recognized by manufacturers as well as the National Highway Traffic Safety Administration (NHTSA). However, manufacturers and retailers do not typically supply their consumers with information about the likelihood of a tread belt separation and the potential harmful outcome. It is incumbent upon these entities to inform consumers that, if a tread belt separation occurred, it could result in significant harm and/or occur as a result of some defect in the tire. It is well-known in the industry that a tire should wear out before it comes apart. Additionally, manufacturers rarely address the aging issue with consumers or retailers. The aging issue can even include automobile dealerships that sell used tires on cars without checking the age of the tires. As discussed below, tire aging can have a significant impact on the durability of a tire structure and, as such, consumers are entitled to know that there is an age limitation associated with the tires. This should come in the form of more public information, more information provided to retailers, as well as additional warnings clearly designated on the product itself. But, unfortunately, DOT codes that designate the manufacturing date of a tire are hard to find, even more difficult to decipher, and rarely examined by retailers or tire service centers. For these reasons, a failure to warn claim should be seriously considered when evaluating a potential tire defect case.

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Vehicle Handling Issues

Statistics from the National Automotive Sampling System-Crashworthiness Data System indicate that there are more than 17,000 accidents per year classified as tire failure-related. Of those specific wrecks, there were nearly 400 fatalities and more than 11,000 injuries. However, in tire litigation, it is customary for tire manufacturers to argue that a tread belt separation is a controllable event. Tire manufacturers generally point to the driver as being at fault in causing the accident rather than the accident being the result of a catastrophic and immediate tire failure due to a tread belt separation. Yet, the Beasley Allen Firm possesses videos demonstrating that even professional drivers who know how to handle race cars at high speeds cannot always keep a car on the road despite foreknowledge that the tire was about to suffer a tread belt separation.69 As the tire tread separates at high speeds, the loose tread can slap against the vehicle’s undercarriage, causing loud noises.70 The vehicle seems to brake by itself, pulling the vehicle in the direction of the tire failure, as the tire separation causes the wheel to no longer maintain a speed equal to the other three wheels. 71 Drivers may report their brakes went out, a misconception caused by a loss of complete control over the wheels and the vehicle’s speed. Although the federal statistics show that wrecks do in fact occur as a result of tire failure, an additional factor that could contribute to a loss of control may relate to vehicle handling characteristics. A tread belt separation event or tread belt delamination is a foreseeable event that is known to and recognized by tire designers and vehicle designers. Unfortunately, there is not presently any standard testing conducted by auto manufacturers to ensure that their vehicles are designed robustly enough to maintain directional controllability during this type of foreseeable event. Most vehicles

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are designed to be steady-state understeer vehicles. Automobile designers consider understeer to be a safe handling characteristic design for the public.72 An understeer vehicle design typically references the relative slip angles when comparing oversteer to understeer. Understeer is a condition where the slip angle associated with the front tires is greater than that of the rear tires and therefore causes the vehicle to either maintain its course heading or plow out during an emergency event. In contrast, an oversteer vehicle is typically one where the slip angle for the rear portion of a vehicle exceeds that of the front axle, causing the rear end of the vehicle to break away and typically rotate toward the front of the vehicle. The oversteer condition is generally considered to be the more dangerous condition and one in which a vehicle can overreact, causing the vehicle to become uncontrollable.73 It is generally uncontested among experts that once a tire has lost its tread, the vehicle will have less lateral control and traction due to the loss of the tread, which can have an adverse effect on the handling characteristics of the vehicle. However, the design of vehicle suspension can also have a very negative effect on the time, usually seconds, when the tread separation event is actually occurring. In other words, during that time period when the tread is actually peeling away from the carcass of the tire, a severe situation can occur that can cause an instantaneous or instant oversteer condition of the vehicle that is unexpected and unknown to typical drivers. Vehicle directional control during the delamination process or event due to oversteer can be created by an imbalance in the suspension that is created as the tire itself rotates over the tread flap peeling off the tire, which causes cyclic forces on the tire and suspension causing intermittent loss of traction.74

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Since most consumers are accustomed to driving a vehicle that is understeer, it is not uncommon for a driver to lose control when the vehicle instantaneously becomes an oversteer vehicle. In the oversteer condition, the vehicle will overreact to steer inputs that would typically be safe operating conditions when the vehicle isn’t in an oversteer condition. Similarly, in the Ford Explorer/Firestone controversy, it was discovered that rollovers could not be prevented even by a professional test driver, because the defective tires were combined with “high-center-of-gravity” vehicle design common to sport utility vehicles.75 For this reason, a vehicle dynamics expert should be engaged to evaluate the specifics of a particular vehicle to determine whether the design is appropriate, reasonable and robust enough to remain controllable during a foreseeable tread separation event.

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Importer Liability

In recent years, China was blamed for dangerous products, including exploding tires,76 that it exported to the United States.77 “From July 2006 to June 2007, FDA inspectors stopped 1,901 shipments from China.”78 The Chinese government has confessed that it has inadequate safety standards and recently executed the head of China’s food and drug agency because he permitted tainted products to proceed to market in exchange for bribes.79

“The National Highway Traffic Safety Administration ordered the recall of a number of Chinese-made tires that had been imported to the United States. The importer, a small family owned business known as Foreign Tire Sales, was sued in the United States after the defective tires caused several deaths. This, of course, was after Foreign Tire Sales spent approximately $90 million recalling the tires. Foreign Tire Sales then sued the Chinese manufacturer, Hangzhou Zhongce Rubber Co. (HZ), in the United States for indemnity. This raises some interesting questions for a party intending to sue a foreign corporation in the United States, especially in regards to service and enforcement of a judgment abroad.”80

The Chinese products’ problems are just one example of the complex and potentially dangerous issues that arise when a situation involves foreign manufacturers.81 Many foreign countries have insufficient product safety laws; thus, U.S. companies must be particularly vigilant in ensuring the safety of any products (parts, etc.) they import from foreign suppliers.82 As noted earlier, there are a number of foreign tire manufacturers that sell their products in the United States. Some have an

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established network of dealerships while others simply import their products to distributors that implement the manufacturer’s marketing plan to sell tires throughout the United States. Where there is no existing dealership network, in the event of a product defect, a foreign manufacturer may argue the lack of personal jurisdiction in an effort to avoid being hauled into the United States court system to answer for its poorly made products. In those instances, it may require pursuing the importer for liability for the defective product. Many times the U.S.-based importer will claim that it has a lack of knowledge regarding the design, manufacture and testing associated with the product it is importing. However, the National Traffic and Motor Vehicle Safety Act 49 U.S.C. Chapter 301 Sec. 30102(a)(5)(B) establishes that importers of “motor vehicles or motor vehicle equipment” are deemed the “manufacturer” of the imported product. In other words, under Federal law, an importer is designated to be the manufacturer of the product it imports and could be subject to liability for a defective product. The Consumer Product Safety Commission (CPSC) publishes a handbook and standards for manufacturing safer products that addresses the duties and obligations of an importer to make sure that the imported products are safe. According to the CPSC policy at 16 C.F.R. 1009.3, it states that “under the Act importers are made subject to the same responsibilities as domestic manufacturers.” The National Highway Traffic Safety Administration has also published regulations stating “importers of motor vehicles and motor vehicle equipment have duties as manufacturers under the Safety Act.” As this relates to passenger and light truck tires, these regulations place a duty upon the importer to ensure that the tires it is importing meet FMVSS No. 139. The Recommended Best Practices for importers of motor vehicle and motor vehicle equipment published by NHTSA sets forth appropriate guidelines to be followed by importers to ensure that the products they are

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importing are safe. Therefore, it is possible to pursue independent negligence claims against importers for failure to follow the standard of care related to their obligations as an importer. These would be claims separate and apart from strict liability or product defect claims. For example, the Best Practices guidelines establish that a manufacturer or importer must:

inspect the goods upon import; inspect foreign manufacturing facilities and quality control

mechanisms; fully understand product specifications and design; exercise great care in selecting foreign manufacturers; establish contracts governing design and production,

testing, inspection and quality control; and, fully understand importer obligations under the law.83

In essence, the standard of care requires an importer to understand the design, manufacture, testing and quality control issues associated with the tires it imports. If an importer has failed to follow the standard of care, it could be liable for its violations of the standard of care. Additionally, in those cases where foreign manufacturers attempt to fight service of process abroad or require that they be served through The Hague Convention or similar treaties that can be costly and timely, federal law states that “service on an agent of administrative or judicial notices or process is deemed to be service on a manufacturer” (49 C.F.R. § 551.66). Additionally, 49 U.S.C. § 30164 requires an importer of motor vehicles or motor vehicle equipment to “have identified a current agent for service of process in accordance with Part 551 of Title 49, Code of Federal Regulations.”

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Therefore, it may be possible to locate a designated agent of service of process in the United States identified pursuant these regulations for a foreign manufacturer that enables a plaintiff to serve the designated U.S. agent for service. However, there are conflicted judicial decisions on this issue.

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Tire Aging Tire aging is an issue that relates to the structural integrity and performance of a tire over time. As a tire ages, it experiences extreme heat, stress and strain as well as well as other environmental factors that can degrade the material properties of the tire, which can lead to a catastrophic tire failure during ordinary use and result in vehicle loss of control. Also, as noted earlier, premature oxidation can result in stiffness and other problems also caused by actual aging. Like oxidation, heat appears to be a significant factor in contributing to structural failures of tires as they age. The NHTSA believes that tire aging is a significant concern for Southern parts of the United States, particularly during summer months when heat build-up can be significant. The NHTSA has stated that these “Southern Belt” states can include Southern California, Arizona, New Mexico, Texas, Louisiana, Mississippi, Alabama, Georgia and Florida.84 Tire aging can occur to a tire without any real visual signs of degradation. In fact, tires can suffer a catastrophic failure even though the tire has never been used and appears to have nearly all of its tread depth. “Yet, the public, and even tire retailers and service technicians, know little about the dangers of aged tires.”85 After the Ford Explorer/Wilderness ATX rollover controversy in 2000 that resulted in the loss of lives, the National Highway Traffic Safety Administration began researching the dangers of tire aging.86 The NHTSA has recognized that tire aging is a significant safety factor that can contribute to catastrophic tire failure.87 Although urged to take action by congress,88 the National Highway Traffic Safety Administration has elected not to proceed with any Federal Motor Vehicle Safety Standard rule-making related specifically to the issue of aging. However, as noted above, the

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NHTSA has recognized that tire aging is a significant safety factor that can contribute to catastrophic tire failure.89 As with any proposed rule-making, the industry vigorously objected to any rule that related to any regulations as to tire aging. Unfortunately, the current Federal Motor Vehicle Safety Standard No. 139 does not specifically include a test to evaluate tire performance due to the age of the tire in relation to its service life and the NHTSA has refused to take any further rule-making action. NHTSA’s own testing and research has revealed the significant safety hazard associated with aged tires. “The agency reviewed insurance company tire claims reported from 2002-2006 and found 77 percent of the tire claims came from five hot-climate states (including California) and 84 percent of these claims were for tires more than six years old.”90 The issue of tire aging relating to degradation over time or thermos-oxidated aging has been known for decades. A 1931 journal article stated:

The auto-oxidation of rubber has been known for a long time, and for a long time, too, it has been known that it plays an important part in spontaneous deterioration or aging, and it has been the object of numerous studies of much interest.91

Interestingly, spare tires are also a significant concern related to aging. In many cases, consumers do not rotate spare tires into regular use. These tires can remain dormant under a vehicle for years. As a result, spare tires suffer the same heat-related and environmental issues that can contribute to the structural degradation of a tire even though it still retains most or all of its original tread and appears unused.

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Automaker recommendations Since the Ford/Firestone litigation of the late 1990s, the issue of tire aging has become more prominent and addressed by many automakers. A number of auto manufacturers, including Ford, Jeep, Chrysler, Dodge, GM, Audi, BMW, Mercedes-Benz, Porsche, VW, Mitsubishi and Toyota now include warnings in vehicle owner’s manuals stating that tires should be replaced that are six years old, irrespective of the tread that remains on the tire. Ford first began using this warning in 2005 model year vehicles.92 However, as indicated above, tire manufacturers typically argue that tire aging is not a significant factor related to structural failures in tires. Nonetheless, several tire manufacturers, such as Bridgestone, Michelin, Continental and Cooper Tire, have published warnings and/or service center bulletins indicating that tires that are ten years old should be replaced. Manufacturers have also included recommendations that if a specific automobile manufacturer recommends a time period less than ten years, then the consumer should follow the automaker’s recommendation for tire replacement. The tire aging issue can be a significant contributing factor to tire service center liability for failure to recognize that tires are beyond the age limit recommendations of tire manufacturers and/or automobile manufacturers.

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Retailer Liability When evaluating a catastrophic tire failure case, there could be liability issues related to the retailers and/or tire servicer. If a tire servicer performs tire maintenance and fails to recognize that tires are clearly older than allowed by industry standards and/or automobile manufacturer warnings, a tire servicer could be responsible for such failure. However, if the tire servicer recognizes the age of the tires, the consumer should be informed and encouraged to remove the tires. Tire service experts will tell you that if such recommendations are made and refused by the customer, industry practice would require the consumer sign the retail receipt related to the servicing of the vehicle explaining that the customer has declined the recommendations to remove aged tires. However, more often than not, tire servicers do not look at DOT numbers to determine the age of the tire and therefore miss tire aging issues. Another tire servicer issue relates to the placement of tires on the vehicle relative to the front and rear axle. Generally, as it relates to passenger cars and light trucks, most consumers (and tire servicers) believe that tires with the best tread should be placed on the front axle of the vehicle. However, this runs contrary to industry practice. Tire manufacturers for years have issued recommendations that tires with the best tread depth should be placed on the rear of the vehicle in order to avoid a handling condition known as “oversteering.” Oversteering is a technical term and relates to a condition where the rear-end of a vehicle breaks away and the vehicle begins to rotate sideways. When a vehicle oversteers, it becomes difficult to control and can result in a wreck causing serious injuries or death. Some tire manufacturers also state in informational materials provided to tire servicers that the best tread needs to be placed on the rear axle particularly to aid vehicle handling in wet conditions to avoid an

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oversteer. However, the oversteer condition can occur during other instances, not simply on wet pavement. For this reason, as a general rule, the best tread depth should always be placed on the rear axle. Therefore, in cases where the best tread is actually on the front axle and a vehicle suffers a rear tire tread belt separation, there may be a degraded handling issue related to tire servicer conduct. A similar issue relates to those instances where consumers replace only two tires as opposed to four tires. Using the rule stated above, when a consumer purchases only two tires, the tires with the best tread should be placed on the rear of the vehicle and not the front axle of the vehicle. Again, there could be situations where a vehicle suffers a catastrophic failure on the rear axle because a retailer has actually placed the two tires with the best tread on the front axle instead of the rear. This goes counter to industry practice related to the procedure for replacing only two tires. Please note that this rule would not apply to vehicles that have different size tires on different axles. For instance, certain high performance vehicles will tend to have smaller tires on the front axle as compared to the rear axle. This general rule of tire placement would not apply to this type of vehicle configuration. Again, tire service experts will tell you that if a customer refuses to follow this industry practice about tire placement, the retailer should have the customer sign a receipt indicating that they have refused to follow the tire servicer’s recommendation. Tire servicers will often sell used tires as well as new tires. Some of the used tires may have been removed from vehicles serviced at the facility and some may have been purchased from a used tire wholesaler. Some tire manufacturers do not approve of the selling of their products in a used condition absent knowledge of how the tire had been previously used and whether it had been abused or suffered other types of internal damage that can by identified by a proper inspection by a qualified tire service expert. In some cases,

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tire manufacturers issue bulletins stating that their tires should never be purchased used. In this situation, there is potential liability on a retailer for selling used tires in violation of these recommendations and guidelines. Additionally, the Rubber Manufacturer’s Association (RMA) also issues recommended practices associated with the sale of used tires. These recommendations set forth that in order to use used tires, the tires should be thoroughly inspected inside and out and a history of how the tire was previously used should be known. In most cases, retailers selling used tires have no information about the history of the tire and, therefore, they could contain internal defects or abuse damage that is unknown and presents catastrophic danger to consumers. As mentioned above, the sale of used tires could also involve issues of tire age and tire placement, which could add other issues related to tire servicer liability. If it is a used tire sold by a wholesale distributor of used tires, there is a potential claim against the wholesaler for selling tires in violation of tire manufacturer and/or RMA recommendations. Tire recalls Alabama businesswoman Carolyn Thorne was paralyzed when her vehicle crashed and rolled over after a defective tire detreaded while she was driving. My partner LaBarron Boone and I represented Ms. Thorne in her case against WalMart, which installed a recalled tire on her vehicle. While investigating a similar case, LaBarron had discovered recall notices are often sent by third-class mail in order to save money, making delivery ineffective and not guaranteed. There is currently no effective system for either tire retailers or the public to confirm that a tire is under recall.

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Sean Kane, founder and president of Safety Research & Strategies, calls the problem “the invisible hazard.” Federal investigators confirm several hundred people are killed each year in accidents where tires are a factor. Donald Karol, Director of the National Transportation Safety Bureau (NTSB) Office of Highway Safety has announced a first-of-its-kind federal investigation of tire safety and the effectiveness of current recall systems. After conducting its own research, ABC News found that since the beginning of 2004, there have been more than 5 million tires recalled for safety defects. Of that number, 80 percent of recalled tires are never returned to the manufacturers and may still be in the stream of commerce or currently in use on vehicles. Recognizing the significance of the retailer or servicer’s role, the NHTSA has created free, online educational material, including videos, for retailers to distribute and display in their showrooms and places of business.93 This material can be found at www.safercar.gov.

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When manufacturers are forced to answer why their tires have failed, they are likely to make defenses such as the below:

Tire pieces on the side of the road can be caused by many factors, including heat, road hazards, and others.95

Heat is the prevalent cause, because heat is always a factor caused by the tire sidewalls flexing as they roll down the road. The less air pressure there is the more the sidewalls flex. 96

If the air pressure is sufficient for the load of the vehicle the tires carry, the sidewalls flex minimally, but if the pressure is insufficient, the sidewalls flex more, increasing the heat, which can gradually deteriorate the chemical bonds holding together the plies and rubber components. Ultimately this chain reaction can result in a “blow out.” 97

Potholes, debris, and even curbs from an errant steer of the car wheel can also cause or contribute to a “blow out.”98 This is also known as the “impact” defense.

In nearly every tire case involving a tread belt separation, tire manufacturing defendants typically raise the same defenses. The list below, although not all inclusive, sets forth the most common defenses that are raised in tire litigation. In most cases, one can expect to see a manufacturer raise one or more of the following defenses to avoid liability for defective tires. Under inflation

The tire manufacturer is likely to claim: “Almost all of the tire debris on our nation’s roads and highways could be avoided if drivers paid attention to the inflation pressure in their tires.”99 Under inflation is a condition that tire manufacturers point to as a maintenance issue that causes tire failure unrelated to the design or manufacture of a tire. Manufacturers often point to evidence of rim

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grooves in the bead flange area of a tire as evidence that a tire was run under inflated. A rim groove is physical evidence left in the bead flange area of a tire that has been installed on a rim. Manufacturers claim that rim grooves only occur in tires that evidence contact between the tire and a rim. Other evidence pointed to by manufacturers as proof of a tire being operated under inflated is more rapid tread wear on the shoulders when compared to tread in the center of the tire. Manufacturers in the most severe cases will also point to abrasion rings or “bluing” on the inside of the tire or on the upper sidewall shoulders of the tire as indications of a tire being operated in an under-inflated condition. Despite the tire manufacturers’ position, virtually all tires that have been mounted and inflated on a metal rim for any significant amount of time will show evidence of rim grooves. When a tire is seated inside a metal rim flange and air pressure forces are applied, the lower sidewall rubber is forced into the rim causing a rim groove. Additionally, all tire designers design a tire’s bead area such that there is a compression fit of the tire to the rim so that the tire will remain inflated and in position on the rim once mounted. This compression fit yields compression rim groove marks over time whether the tire is operated under inflated or not. The mere fact that tires are mounted on rims, exposed to inflation pressures and operated under vehicle weight and loads will produce rim grooves over time. There are a number of factors that can affect the degree of rim grooving that is not related to a tire being operated in an under inflated condition. For example:

(1) tire rubber softness; (2) a tire’s lower sidewall profile relative to the profile of

the rim flange;

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(3) underlying construction of the tire in the lower sidewall area;

(4) the amount of use; (5) the position of the tire on the vehicle relative to turning,

acceleration, braking; and, (6) the load and inflation pressures experienced by the tire.

These are all factors that can influence the degree of rim grooving on a tire outside of being operated in an under-inflated condition. The mere presence of rim grooving, without other supporting forensic evidence, cannot be used, in isolation, to assert that a tire has failed as a result of an under inflated operation. While use of a tire significantly under inflated can cause a tire failure, the failure mode is most often in the sidewall where the body plies have heated up under increased strain and the polyester ply cords degrade causing the sidewall to burst or rip away from the rest of the tire components. The failure mode of a tread belt separation is not one commonly associated with being operated under inflated. Overloading A tire tread belt failure caused by overloading of a tire is one for which the tire manufacturers will not take responsibility. Overloading is a condition that occurs when the tire is operated on a vehicle and the vehicle weight alone or the operation of the vehicle with additional cargo is beyond the design performance range for the tire. Extreme instances of overloading can result in a sidewall rupture, much like one that occurs in an under inflation condition. Moderate instances of operating a tire in an overloaded condition can add to the shoulder wear of a tire. If a tire is operated in an overloaded condition for an extensive period of time, the belt edges can begin to break down and polish.

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Tire manufacturers often point to oily residue on the tread surface or oily residue in a tread separation surface to suggest that this is evidence of overloading. While this can potentially be evidence of overloading, it can also be evidence of oils migrating from the belt skim rubber as a result of the excessive polishing between belts that have separated due to other reasons such as design or manufacturing defects. The presence of an oily residue alone is not evidence supportive of overloading. Maintenance While many of the common defenses listed here can fall under the heading of maintenance, oftentimes manufacturers will point to maintenance (or lack of maintenance) performed by a retailer or tire service center as being the ultimate cause associated with a tire failure. For example, manufacturers will claim that tires were improperly rotated or not rotated by tire service centers. Also, manufacturers can assert that a tire retailer or service center provided the consumer with tire sizes or designs not appropriate for the intended use of vehicle involved in the case. It is also not unusual for tire manufacturers to point to the retailer or service center for providing tires that were too old to be put into service. Bottom line, it is not unusual for a tire manufacturer to point to the conduct of a tire retailer or service center as being the proximate cause of a tire failure unrelated to a tire defect. Impact damage Tire manufacturers often point to what is described as latent internal damage to a tire that leads to failure fifty to 20,000 miles later, depending on the defense expert. Tire manufacturers claim that injury to the internal components of the tire were caused as a

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result of some impact with an external object that can be as small as a Coke can to as large as a cement block. In reality, a tire failure caused by impact damage actually produces a different failure mode than a tread belt separation. An impact to a tire that is significant enough to break through tread, steel belts, carcass, and inner liner components would result in an immediate air-out of the tire and not simply a tread belt separation. Improper repairs Tire manufacturers often raise this defense to suggest that by virtue of finding any repair that the repair does not conform to the “patch-plus-plug” variety of puncture repair. They argue that “a plug by itself or a patch by itself is not an acceptable repair because the plug does not permanently seal the inner liner and the patch does not fill the void left by the penetrating object, which allows water to enter the body of the tire and starting corroding the steel belts.”100 Manufacturers contend that any “non-standard” repair, such as a plug-only or patch-only repair, becomes the proximate cause of the tire failure unrelated to defects in the tire. This is one of those maintenance type issues where tire manufacturers typically point to the tire service center as being responsible for causing the tire failure. While improper tire repairs can at times allow pressurized air to escape into the belted region of the tire, each such instance has to be evaluated on a case-by-case basis to determine whether it was a contributing factor to the tread belt separation. Punctures “With every revolution, a tire runs the risk of being punctured by a foreign object and since the average tire will experience millions of revolutions throughout its lifespan, it is usually a matter of when you get a flat, not if.”101

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The above statement acutely depicts the typical manufacturer’s fault-shifting tactic: they cannot be expected to avoid the unavoidable. But this misleading claim ignores the science behind punctures and their relationship to failed tires. A puncture occurs when an object penetrates the interior portion of the tire. Tire manufacturers claim that the mere fact that a puncture exists demonstrates that there has been poor maintenance by tire owners or that the puncture is a point of ingress for air or moisture into the internal components of the tire causing a tread belt separation. However, these claims overlook the simple physical signs of a puncturing event. If the puncture completely penetrates the tire to the extent that there is loss of air (sometimes the inner liner seals completely around the puncturing object and does not leak) this leakage would find the “path of least resistance,” which is outside the tire through the puncture. Punctures that do not penetrate completely do not access the “air chamber” of the tire and often result in localized points of rust on the belt wires in the vicinity of the puncture but typically do not allow for air to migrate along the belt cables to cause a tread belt separation. The lack of air migration through a puncture is often attributable to the modern day belt wire designs that are more robust than those of the ‘70s and ‘80s. Driver actions A tread belt separation can take hundreds to thousands of miles to propagate between the steel belts of a tire before culminating in a tread belt detachment. The only portion of this a driver might experience could be a slight ride vibration, but this does not occur in every case. For many drivers, the first indication they have of an impending problem with a tire is once the tread and top belt have lifted from the carcass of the tire and have begun to peel away.

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Once the tread lift is initiated, the event can last up to several seconds. Tire manufacturers are often critical of a driver for braking (or not), trying to correct the path of the vehicle through steering or other corrective actions when the vehicle begins to fishtail or oversteer. It is important to understand that these tread belt separation episodes are often without any precursor or warning to the driver. As a result, drivers find themselves in an out-of-control scenario where the vehicle ends up in a rollover situation or other life-threatening condition as a driver is trying to respond to a handling condition in the vehicle that they have never experienced. This issue is more detailed above.

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The purpose of this book has been to provide lawyers with a primer to tire litigation. The value of intense case preparation through discovery and expert selection has not been addressed in this book. However, I hope that the contents will at least assist you in getting started and help you to know what questions to ask as you evaluate your potential tire case.

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This book would not have been possible without the support of my law firm and partners at Beasley Allen. The knowledge and experience of great trial layers like Jere Beasley, Greg Allen and Cole Portis has been a tremendous resource to me over the years. I also have to say that I have learned much and been supported by many great trial lawyers from organizations like the Attorney Information Exchange Group, the Alabama Association for Justice, and the Georgia Trial Lawyers Association. The practice of law representing those who need help the most has been a humbling and rewarding experience. I believe the needs of these clients pushes us all to find justice for them through our great legal system. I am blessed to be associated with these groups and thank them all.

- Benjamin E. Baker

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Citations

1 Turbyfill, Diane, Gaston Teens Survive Crash, Gaston Gazette (Sept. 19, 2016) http://www.gastongazette.com/news/20160919/gaston-teens-survive-crash (Nov. 5, 2016) 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. 7 Keegan, Harrison “County jailer accused of sexual relationship with escaped inmate, one inmate caught,” KSDK-TV (Sept. 20, 2016) http://www.ksdk.com/news/crime/pulaski-county-jailer-accused-of-sexual-relationship-with-escaped-inmate/321649786 (Nov. 5, 2016) 8 Ibid. 9 Ibid. 10 National Highway Traffic Safety Administration (NHTSA), Engineering Analysis Report and Initial Decision Regarding EAOO-23; Firestone Wilderness AT Tires (Oct. 2001) 11 Tire Aging: A Summary of NHTSA’s Work, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014) 12 Survivor of Ford Rollover Accident Testifies, Houston Chronicle, (Aug. 14, 2001) http://www.chron.com/business/article/Survivor-of-Ford-rollover-accident-testifies-2018871.php (Dec. 3, 2016) 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Greenwald, John, Inside the Ford/Firestone Fight, TIME Magazine (May 29, 2001) http://content.time.com/time/business/article/0,8599,128198,00.html, (Dec. 3, 2016) 19 Simison, Robert, Lundegaard, Karen, Shirouzu, Norihiko, and Heller, Jenny; How a Tire Problem Became a Crisis for Firestone, Ford, The Wall Street Journal (Aug., 10, 2000) http://www.wsj.com/articles/SB965870212891028108 (Dec. 3, 2016) 20 Ibid.. 21 Ibid. 22 Congressional Record, 106th Congress, 2nd Session, Issue: Vol. 146, No. 128, https://www.congress.gov/congressional-record/2000/10/13/extensions-of-remarks-section/article/e1778-3?q=%7B%22search%22%3A%5B%22TREAD+act%22%5D%7D&r=4 (Dec. 3, 2016)

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23 Ibid. 24 Tire Aging: A Summary of NHTSA’s Work, U.S. Dept. of Transportation National Highway Traffic Safety Administration, (March 2014) 25 Ibid. 26 “Do You Have a Lawsuit” is a pre-suit case evaluation methodology utilized by Attorney G. Whit Drake. 27 The “Triangle” was first utilized by Attorney Lanny S. Vines. 28 The “Square” was developed and utilized by Attorney G. Whit Drake. 29 How Tires Are Made, Tire Industry Association, https://www.tireindustry.org/how-tires-are-made (Dec. 3, 2016) 30 Beasley Allen principal LaBarron Boone discusses tire recalls, detreading, BeasleyAllen.com https://www.beasleyallen.com/multimedia/beasley-allen-principal-labarron-boone-discusses-tire-recalls-detreading (Dec. 27, 2016) 31 The Pneumatic Tire; DOT HS 810 561, February 2006 32 How Tires Are Made, Tire Industry Association, https://www.tireindustry.org/how-tires-are-made (Dec. 3, 2016) 33 Ibid. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. 45 Petersen, Gene, Where Were Your Tires Made?, Consumer Reports (Oct. 14, 2015) http://www.consumerreports.org/cro/tires/where-are-tires-made (Dec. 3, 2016) 46 Ibid. 47 Ibid. 48 Ibid. 49 Ibid. 50 If Tire Labels Could Talk, Here’s What They’d Say, TireWise, NHTSA, https://www.safercar.gov/tires/pages/tires_labeling.html, (Dec. 3, 2016) 51 Consumer Guide to Uniform Tire Quality Grading, NHTSA 52 Colin, LT vs. Passenger Tires, TireRack.com, (June 7, 2010) http://blog.tirerack.com/blog/colintirerackcom/lt-tires-vs-passenger-tires#sthash.0Xtb7hRy.dpuf (Dec.27, 2016) 53 National Highway Traffic Safety Administration (NHTSA), Engineering Analysis Report and Initial Decision Regarding EAOO-23; Firestone Wilderness AT Tires, (Oct. 2001)

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54 U.S. Patent 3,357,470, filed Dec. 15, 1965. 55 U.S. Patent 3,357,470, filed Dec. 15, 1965; U.S. Patent 3,598,165, filed July 15, 1968; U.S. Patent 3,786,851, filed March 2, 1971; U.S. Patent 3,831,656, filed March 27, 1972; U.S. Patent 3,850,219, filed Feb. 21, 1973; U.S. Patent 3,973,612, filed July 12, 1974; U.S. Patent 4,184,530, filed Nov. 21, 1978; U.S. Patent 4,284,117, filed Dec. 3, 1979; U.S. Patent 4,407,347, filed Jan. 13, 1978; U.S. Patent 4,724,881, filed Feb. 13, 1986; U.S. Patent 4,791,973, filed Jan. 25, 1988; U.S. Patent 4,934,430, filed Nov. 2, 1988. 56 U.S. Patent 3,834,439, filed Jan. 26, 1973. 57 Ammons, Rob, Blowout: How Tire Defects Hurt and Kill, The Ammons Law Firm, http://ammonslaw.com/wp-content/uploads/2015/09/tire_defects_tire_detread.pdf (Dec. 3, 2016) 58 Ibid. 59 Ibid. 60 U.S. Patent 3,850,219 filed Feb. 21, 1973. 61 U.S. Patent 4,184,530 filed Nov. 21, 1978. 62 U.S. Patent 3,357,470, filed Dec. 15, 1965. 63 A Defective Tire Can Cause Major Problems, Sutliff & Stout Injury & Accident Law Firm (Oct. 5, 2016) https://myhoustoninjuryattorneys.com/automotive-product-liability/tire-defects/ (Dec. 3, 2016) 64 Ibid. 65 NHTSA – The Pneumatic Tire publication. 66 Ammons et. al., Tire Defect Litigation 3, Lawyers & Judges Publishing Company (2016) 67 Photographs in this section showing manufacturing defects have been graciously provided by Troy Cottles, forensic tire expert. 68 Ammons et. al., Tire Defect Litigation 134, Lawyers & Judges Publishing Company (2016) 69 Beasley Allen principal LaBarron Boone discusses tire recalls, detreading, BeasleyAllen.com https://www.beasleyallen.com/multimedia/beasley-allen-principal-labarron-boone-discusses-tire-recalls-detreading (Dec. 27, 2016) 70 Causes of Tire Tread Separation and Delamination, Kaster, Lynch, Farrar, & Ball, http://thetirelawyers.com/tire-litigation/tread-separation-faq/ (Dec. 3, 2016) 71 Ibid. 72 Renfroe, et al, Effects of the Process of Rear Tire Delamination on the Vehicle Stability, Paper No. 07-0142. 73 Id. 74 Renfroe, et al., Designing for Vehicle Stability During Rear Tire Tread Separation Events, IMECE 2006-13600; Isper, et al., Solid Axle Tramp Response Near the Natural Frequency and its Effects on Vehicle Longitudnal Stability, SAE 2008-01-0583; Gilbert, et al., Dynamic Testing of an SUV with Tire Tread Separation, Canadian Multidisciplinary Road Safety Conf. XIX;

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Gilbert, et al., The Effect of Tread-Separation on Vehicle Controlability, Hazard Information Foundation, Inc. Tire Tech. Conf. 8/2010; Ardent, et al., Force Response During Tire Tread Detachment Event, SAE Technical Paper 2000-01-0697. 75 Causes of Tire Tread Separation and Delamination, Kaster, Lynch, Farrar, & Ball, http://thetirelawyers.com/tire-litigation/tread-separation-faq/ (Dec. 3, 2016) 76 Bitterlin, Dane J., Practical Considerations in International Products Liability Litigation, Neil Dymott Attorneys, http://www.neildymott.com/practical-considerations-international-products-liability-litigation (Dec. 3, 2016) 77 U.S. Liability for Foreign-Made Products, Larson King, http://www.larsonking.com/files/Foreign_Products_Liability.pdf, (Dec. 3, 2016) 78 Ibid. 79 Ibid. 80 Ibid. 81 Ibid. 82 Ibid. 83 2008 Recommended Best Practices for Importers of Motor Vehicle and Motor Vehicle Equipment, NHTSA; Also, see, 1975, Handbook and Standards for Manufacturing Safer Consumer Products, CPSC. 84 Tire Aging: A Summary of NHTSA’s Work (March 2014) 85 Tire Safety, Safety Research & Strategies, Inc. 86 Ammons et. al., Tire Defect Litigation 35, Lawyers & Judges Publishing Company (2016) 87 Tire Aging: A Summary of NHTSA’s Work (March 2014) 88 Ammons et. al., Tire Defect Litigation 35, Lawyers & Judges Publishing Company (2016) 89 Tire Aging: A Summary of NHTSA’s Work (March 2014) 90 Tire Safety, Safety Research & Strategies, Inc. 91 Ibid. 92 CNN Money (May 20, 2005) Ford: Older tires need to be replaced, http://money.cnn.com/2005/05/20/Autos/oldtires/ (Jan. 6, 2017) 93 TireWise, NHTSA, https://www.safercar.gov/tires/index.html (Dec. 3, 2016) 94 Forensic Tire Expert, Troy Cottles, is a contributor to this section. 95 Why Do Tires Fail, Tire Industry Association, https://www.tireindustry.org/why-do-tires-fail (Dec. 3, 2016) 96 Ibid. 97 Ibid. 98 Ibid. 99 Ibid. 100 Tire Repair, Tire Industry Association, https://www.tireindustry.org/tire-maintenance/tire-repair (Dec. 3, 2016) 101 Ibid.

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Index A Accident reconstruction – 16, 41 Alignment – 60 B Belt – 1-2, 7, 10-11, 16-17, 28, 36, 38, 40, 42-46, 48-54, 60, 63, 66, 68, 70, 72-73, 78-79, 90, 94, 96-100 Belt wedge – 49-52 BFGoodrich – 22 Blowout – 1-2, 6 Bridgestone – 10, 22, 48, 88 C Cap ply – 49, 51-52 Consumer Product Safety Commission – 83 Cooper – 22, 52, 88 CPSC – 83 D Damages – 2, 17, 39 Delamination – 7, 79-80 Department of Transportation – 23 Design defect – 48-49, 56 Detread – 6-7, 91 DOT number – 23, 25, 28, 89 Dunlop – 22, 48 E Evidence – 11, 17-18, 38-42, 44-46, 59-60, 73, 94-97 F Firestone – 10-12, 22, 43, 51, 81, 88 Foreign material – 76-77

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G Goodyear – 22, 48 H Halobutyl – 55 I Impact – 27, 30, 32, 78, 94, 97-98 Import – 82-84 Inflation – 30-31, 33, 94-96 Inner Liner – 17, 49, 54-55, 72, 74, 98-99 Investigation – 18, 40, 51, 92 J Jurisdiction – 18, 26, 83 L Liability – 2, 6, 16-18, 27, 38, 82-84, 88-89, 91, 94 Liner pattern – 56, 59 Loading – 27, 34, 96-97 M Maintenance – 18, 26-28, 32, 89, 94, 97-99 Michelin – 22, 48, 88 N NASS-CDS – 12 National Automotive Sampling System-Crashworthiness Data System – 12, 79 National Highway Traffic Safety Administration – 11, 26, 78, 82-83, 86 National Transportation Safety Bureau – 92 NHTSA – 11-12, 25-26, 30-31, 78, 83, 86-87, 92 NTSB – 92 Nylon wrap – 49, 51

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O Oversteer – 80-81, 89-90, 100 Oxidation – 72-73, 86-87 P Porosity – 54, 75 PSI – 31-32, 36 Punctures – 20, 28, 98-99 R Radial tires – 20, 48-49, 52, 54, 60 Recalls – 10-11, 28-29, 82, 91-92 Repairs – 28, 98 Rollover – 7, 11, 40, 81, 86, 100 Rubber – 11, 20-21, 49-50, 52-56, 58, 60, 72-73, 75, 82, 87, 91, 94-95, 97 S Shearography – 46 T Tire age – 86, 91 Tire defect – 2, 6-7, 16-17, 19, 22, 28, 38, 54, 78, 97 Tire pressure – 31-32, 34 Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act – 11 Tread – 1-2, 6-7, 10-11, 16-17, 20-21, 28, 36-38, 40-44, 46, 48-49, 51, 53, 60, 75, 78-81, 86-91, 94-100 Tread belt separation – 1-2, 7, 10-11, 16-17, 28, 36, 40, 53, 60, 78-79, 90, 94, 96, 98-100 Tread plies – 20 U Understeer – 80-81

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V Vehicle door placard – 30-31 Vehicle handling – 11, 16, 32, 36-37, 42, 79, 89 W Witness – 18, 40 X X-ray- 45, 60 Y Yokohama – 22

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perhaps the single most important component in vehicle ...a jailer assisted two prisoners’...

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