October 31, 2014

Elyria
Rain
43°F
test

Parents awarded more than $6 million in case of car seat death

Maurice Possley
Chicago Tribune
   LIVINGSTON, Mont. — Jessi Malcolm is the kind of mother who does things by the book, so when a friend gave her a used car seat she did all the right things.
   She read the manual that came with the seat, an On My Way model 207, one of the most popular child safety seats ever with 3.4 million sold. She learned how to properly install it in her 1995 Chevrolet Suburban. And she telephoned the manufacturer, Evenflo Co., which told her the seat had not been recalled and was safe.
   But on July 7, 2000, Malcolm’s Suburban was forced off the road by another driver, sending it into a rollover crash. When she turned to look in the back seat where she had strapped her four-month-old son, Tyler, all she saw was his security blanket and a still-buckled seat belt.
   A bystander found the boy about 60 feet away, still strapped in his Evenflo car seat, face down in a ditch. His skull fractured in three places, Tyler was taken off life support several hours later and pronounced dead.
   On Wednesday, a Park County District Court jury decided the seat was defectively designed and awarded Malcolm and her husband, Chad, nearly $6.7 million in damages for the loss of their son. The jurors also found that Evenflo was eligible to pay punitive damages and they will return Thursday to hear evidence on company finances before assessing an amount.
   The Malcolm case illustrated one of the startling realities of how the government regulates the child-restraint industry: A car seat can repeatedly break in laboratory testing and yet federal law does not require the manufacturer to alert the government or change the design.
   Attorneys for the Malcolms contended that Evenflo’s On My Way was defectively designed. For instance, they said the belt hooks meant to help secure the child restraint to the car’s rear seat were susceptible to breaking. In addition, the restraint’s hard plastic shell lacked energy-absorbing padding that, one expert testified, would have saved Tyler’s life.
   Evenflo lawyers argued that Tyler’s model of seat had never failed any tests and that his death was the only fatality involving a car seat with a broken belt hook.
   Because the case resumes Thursday, neither the Malcolms nor lawyers for either side would comment. But as the jurors were being polled about the verdict — unanimous among the eight women and four men — Jessi Malcolm gasped from her seat in the courtroom gallery, saying, “It’s a slam dunk.”
   The jury’s finding culminated a crusade Malcolm has waged to warn the public about a widely sold car seat that she believed killed her son. She also became a strong advocate for child safety.
   After battling through the depression and sadness that lingered after Tyler’s death, Malcolm took federal car seat safety courses and is now a certified child seat technician, responsible for teaching firefighters and others how to install the seats, as well as helping parents select and install them.
   Over the trial’s seven days, kinetic engineers, plastics experts and physicians presented conflicting opinions about what happened during the crash and why Tyler died.
   A reconstruction expert testified for the Malcolms that the belt hook snapped while the vehicle was rolling and the seat belt slipped free from the other hook, allowing the car seat to be ejected.
   Both sides said the boy’s head was fractured when his head snapped against the car seat’s hard plastic shell, but disagreed about when his seat hit the ground.
   Evenflo’s crash reconstruction expert testified that the passenger side rear door opened far enough during the accident that Tyler’s car seat, propelled by centrifugal force, leaned far enough out of vehicle that the seat struck the ground.
   That blow caused his skull fracture, Evenflo’s experts testified, and the brief moment of contact caused enough tension that a belt hook on the car seat broke, allowing the car seat to tumble free and land face down in the ditch.
   The case centered on whether the seat in which Tyler died, an On My Way model 207, was virtually the same as the model 206, which Evenflo recalled in 1995 after informing federal regulators that four of the company’s tests showed cracks in the seat shell. The company’s lawyers told the jury that the model 207, which the company stopped marketing several years ago, was a different seat because it contained reinforcements and that it had not failed any tests.
   But Evan Douthit and Randy Bishop, attorneys for the Malcolms, presented evidence of at least five other auto crashes in which the belt hooks broke or the car seats came free, including two that were rollover crashes. None of the seats was ejected from the vehicles, and none of the infants was seriously injured.
   Louis D’Aulerio, an engineer and kinetics expert, testified on behalf of the Malcolms that the belt hooks cracked or broke in more than 25 percent of 582 tests performed by or for Evenflo on various models.
   D’Aulerio dismissed Evenflo’s point that many of those tests were on either prototype models that were never produced or on the model 206. He said the open belt hook design was the same in both models.
   “Every On My Way ever designed, that belt hook design never changed,” D’Aulerio testified. He noted that in the recall of the model 206 in 1995, Evenflo had reported finding small cracks in the seat that the company told the public could be a risk to pinch babies.
   “A quarter-inch crack should be a red flag,” D’Aulerio testified. “If (the belt hook) cracks and breaks, you’ve lost the seat. It’s obvious.”
   Asked if consumers should have been told of such problems, Evenflo’s director of product safety testified that the company would only issue such a warning “if we believe there is a rampant safety defect.” Randolph Kiser, who helped design the seat, added: “If it is a one-in-a-million occurrence, it is not likely to occur again.”
   Jessi Malcolm testified that she and her husband moved off their ranch, south of Livingston, Mont., three years ago because the accident had happened on the ranch property and the proximity — they had to drive by the site virtually every day — was too painful. They now live in Livingston where she operates a day-care center.
   In Wednesday’s verdict, the jury awarded the couple $5.5 million for their pain, suffering and grief as a result of the loss of Tyler. The remaining nearly $1.2 million was to compensate them for medical and funeral expenses as well as for what he could have earned had he lived.
   But before the trial began, Jessi Malcolm said the family did not pursue the lawsuit just for money. “I don’t want this to happen to anybody else,” she said then.