One of the most important emerging issues in product liability litigation is tire ageing. During the past few years, consumer advocates and attorneys have focused on the danger of a tire degrading and being more likely to experience a tread separation as a result of its age. As a tire ages, it degrades and becomes less robust. This is due primarily to oxidation and ozonation, which are chemical reactions through which oxygen and ozone break down a tire’s rubber molecules, making the tire more likely to fail during normal use. The typical failure mode is a tread or belt separation at highway speeds. The tread literally peels away from the rest of the tire. Testing confirms that depending on the circumstances, even a diligent driver will be unable to maintain control of his vehicle when this happens. The vehicle experiencing a tread separation will usually veer out of control resulting in a rollover or high speed collision with another vehicle.
Despite the legitimacy of the tire ageing defect theory, until recently there have been proof problems for plaintiff experts who have opined in litigation that tire ageing contributes to tread separation. One reason was that, although there were some studies and some industry documents on this issue, there was not a wide body of scientific support for this theory. Moreover, industry representatives and defense experts have vehemently denied that tire ageing actually causes tread separation. Tire company lawyers have also argued aggressively that plaintiffs lack sufficient scientific proof of the validity of the tire ageing theory.
However, recent work by Safety Research and Strategies (a consumer research group), NHTSA (the National Highway Traffic Safety Administration) and – surprisingly — Ford Motor Company, has completely turned around the viability of the tire aging theory in court. The work by this unlikely combination of entities has resulted in the development of the most important evidence and information to have ever emerged in defective tire litigation, in addition to forming the basis for what is likely to be new important new safety standards for tires.
Ford, through Dr. John Baldwin, a former 3M polymer chemist recruited to help Ford with its root cause analysis of the Firestone tires, picked up the issue and began to examine the science behind tire age degradation. While no new science was needed, Baldwin’s efforts “outed” the tire industry by demonstrating that oxidative aging of tires, a causal factor in tire disablements, could indeed be replicated in the lab and meaningful tests could be developed to insure a minimal level of safety in worse case environments.
Baldwin’s work began a process which resulted in an agreement from the tire makers, NHTSA, and Ford Motor Company that static oven aging in a lab can mimic oxidative aging found in tires removed from the field. Although the tire manufacturers initially obfuscated a NHTSA tire aging proposal in 2002, there is now consensus that an artificial aging test can be accomplished in the lab to replicate field aging. According to Ford, six years in the worse case environment (i.e., Phoenix, Arizona) can be replicated under the following conditions: oven aging at 65º C for 8 weeks, with inflation media consisting of 50 percent Oxygen, 50 percent Nitrogen, removing and refilling the inflation media every two weeks.
While NHTSA, Ford and the tire manufacturers, as members of an ASTM committee, agreed on the tire aging protocol, Ford recently took the next step of specifying the Stepped-up-Load (SUL) test protocol (indoor road wheel) as Ford’s internal specification. Using the NHTSA FMVSS 139 SUL test, Ford requires tires to survive for 34 hours — the same time minimum required under the rule.
Ford also recently began to specify that tires should be replaced after six years — a recommendation that was derived from the SUL results along with analyses of the peel strength from three tire brands in six vehicles. Using a 25 percent peel retention criterion, Ford set a lower bound on tire capability using peel data. Ford’s goal in setting a tire replacement criterion was to “determine the approximate time in service requirements for average Phoenix exposures that is consistent with current tire industry capability.”
Also during the last few years, NHTSA’s technical team, let by engineer James MacIsaac, put together a test program that paid meticulous attention to detail and collected new and field aged tires from Phoenix to measure their performance, material, and chemical properties. Having the benefit of Ford’s studies meant the agency had a partner in testing who also wanted to get to the bottom of the issue. And unlike the tire industry, the automaker wouldn’t have to face regulatory challenges, since it wasn’t in the tire business. In fact, Ford had everything to gain by showing up the tire industry as it had done successfully with Firestone.
The tire manufacturers, who have been left out of regulatory fights for decades while regulators focused on improved crashworthiness, appeared unprepared and seemed content to address the potential rulemaking by firing a few rounds to misdirect regulators. Initially, that strategy slowed the process for the agency, which had virtually no tire experience.
However, Baldwin’s work for Ford neatly disproved the tire industry’s claims. NHTSA saved time and expense by monitoring his progress, and turned its focus to testing that mattered.
Meanwhile, Safety Research & Strategies, a consumer research group in Massachusetts, uncovered evidence that the tire industry had a much better understanding of the tire aging than previously claimed. Sean Kane, Safety Research and Strategies’ president, submitted docket comment to NHTSA citing key studies published in Germany in the late 1980s that suggested the industry begin warning about tire aging after finding disproportionate increases in failures after six years. Kane also brought attention to vehicle manufacturer warnings that started with German automakers and Toyota in 1990 – a little-known fact that resulted from the German studies. Among the important documents submitted to NHTSA was a previously secret British Rubber Manufacturer’s guideline that intended to warn consumers about the hidden dangers of aged tires and the need to replace unused tires after six years.
Tapping into the litigation network of consumer attorneys, Kane also identified dozens of crashes that involved aged tires, many of them unused spares that appeared to be brand new. The popular press covered the issue extensively bringing warnings about aged tire dangers into the local, regional, and national news and igniting opposition from trade journal editors.
The next step is moving the technical findings into the policy arena. Proposed rulemaking is expected from NHTSA in August 2007 when the agency is required to brief Congress on its findings.
Meanwhile, all of the technical findings by Ford, NHTSA and Safety Research and Strategy has resulted in an immediate benefit for consumers involved in tread separation cases against tire manufacturers. Unlike in earlier cases involving claims that a tire failed as a result of its age, consumers pursing tire ageing theories today have a legitimate scientific and technical basis for their theory and for their experts to rely upon. Moreover, with the recent acceptance of scientific methodologies for measuring the effects of tire ageing in a lab, there are likely to be even more opportunities in the near future for consumer advocates to develop further proof that a particular tire’s safety was compromised as a result of its age.
Hopefully these developments will ultimately change the way tire companies do business. Tire companies need to develop warnings for consumers and their dealers about the dangers of tire ageing. There should also be criteria and standards developed for a tire’s anticipated shelf life, such as an expiration date stamped into the sidewall of the tire. Tragically, despite the growing consensus that a tire degrades over time and becomes more likely to fail, the tire industry has done nothing to warn the public. And, until changes are made, consumers and families will continue to be needlessly injured and killed because they unknowingly drive with dangerous tires.
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Sean Kane, the President of Safety Resources and Strategies, contributed much of the information contained in this article. His website is www.safetyresearch.net, and he can be contacted at (508) 252.2333.
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