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When car-seat safety, commerce collide(Chicago Tribune (KRT) Via Thomson Dialog NewsEdge) CHICAGO _ Most parents never noticed the plastic notch in the popular Cosco Touriva child car seat unless they peeked beneath the cloth cover. But an Oregon trauma nurse found it while trying to figure out what caused an 18-month-old girl's skull fracture in a low-speed crash. She warned the company of the potential hazard of a small head hitting the edge of this hard, hidden indentation. A Texas family made a similar link, suing the manufacturer after their daughter suffered brain damage in a crash. Eventually, one of the company's own engineers would label the indentation a "child safety concern." Yet Dorel Industries sold hundreds of thousands of Tourivas before removing the notch from all versions of the seat in 2005, five years after the nurse alerted the company. Among those buyers were at least two more families who now allege the notch injured or killed their children during crashes. A Chicago Tribune examination of child car seats in America shows how the vital task of making a safe product can clash with the realities of the marketplace. Car-seat makers enjoy a rare advantage among companies. Theirs is the one children's product every parent, by law, must use. And many parents assume all seats are equally safe, so they choose based on what fits their budget or matches their car's interior. But the willingness of some executives to dismiss warnings about potential hazards means parents can buy a car seat without knowing all the risks. At the same time, regulators have left consumers in the dark by failing to develop safety ratings for seats or significantly toughen crash tests. As a result, the device designed to protect the most vulnerable passengers in a car is tested by the government in fewer crash scenarios than the car itself or its seat belts. Regulation of car-seat manufacturers largely boils down to self-reporting. A car seat can break into pieces during crash tests, the Chicago Tribune found, and its maker doesn't have to report those results if the tests fell outside the narrow parameters of the government standard. By examining the test reports of some of the largest car-seat makers, internal company documents, depositions and public records, the paper gained rare insight into the inner workings of the industry _ and to decisions that can compromise safety. An e-mail in the files of Dorel, the largest manufacturer of car seats in the U.S., shows that a marketer once asked a colleague why their company continued to recommend a particular model despite concerns it was a danger to smaller children. "Why?" he responded. "It still sells." Car seats save lives, and their widespread use is rightly considered a public safety triumph. Motor-vehicle accidents are the leading cause of death for young children, and the federal government estimates that buckling kids into proper child restraints cuts deaths and serious injuries in half. Even the best-designed seats, though, can't always save a child in the worst wreck. "No product is more effective at reducing fatalities and injuries to children," according to the Juvenile Product Manufacturers Association, a trade group. At Dorel's car-seat factory in Columbus, Ind., letters from families who credit the firm's seats with saving their children's lives cover a wall. "The company is not motivated by trying to make a dollar at the expense of safety," said Dorel General Counsel Bruce Weisenthal. Dorel says none of the models mentioned in this article was flawed and that the notch it was warned about never posed a safety hazard. In 2005, 236 children died and roughly 33,000 were injured while strapped into their safety seats during crashes. It's impossible to say how many children's deaths were due to the seats failing: The first responders to crashes often don't try to determine if a car seat malfunctioned when a child is killed or severely injured. The head of the National Highway Traffic Safety Administration, which regulates car seats, stressed that they are a very effective product but that testing needs to be improved. Nicole Nason, who has two children in car seats, said she is committed to adding side-impact tests for car seats and would like to see the speed of frontal crash tests increased from 30 to 35 miles per hour. "The companies will resist mightily," she said, "but that doesn't mean we shouldn't do it." One of Nason's predecessors, Dr. Ricardo Martinez, has been especially critical of car-seat makers. "It was very clear that the culture in that industry was to meet the standard, not to exceed" it, said Martinez, NHTSA's administrator under President Bill Clinton. Martinez noted that the federal standard for car seats is so narrowly defined that seats passing the toughest of the tests _ simulating a front-end collision at 30 miles per hour _ can have serious problems at just a few miles an hour more and yet still meet the standard. "We had seats where, if you turned (the test sled) up 5 miles an hour, the seat would disintegrate," he said. (EDITORS: BEGIN OPTIONAL TRIM) Some car-seat makers don't even like the word "safety" to describe their product. In the early 1990s, when federal regulators proposed changing the term for car seats from "child restraint systems" to "child safety seats," some manufacturers protested. Worried about possible lawsuits and the potential to "erroneously increase consumer expectations," an attorney for car seat giant Evenflo Co. wrote to regulators: "It is unfair to create the impression that such devices provide safety." Based on such comments, the agency decided not to change the name. (END OPTIONAL TRIM) Strip away the fabric covers, and nearly all child car seats are plastic shells. Those shells, combined with the straps or shields that restrain children, are designed to redistribute the forces of a crash to protect kids. Parents might assume car seats offer protection in all kinds of accidents, but the seats must only meet a standard for head-on crashes. To check compliance, NHTSA each year tests about 100 models it buys off store shelves. While the government tests new vehicles in side-impact, head-on and rollover scenarios, it only subjects child car seats to frontal tests under laboratory-controlled conditions. Yet side-impact collisions are especially dangerous for children because studies show such crashes are more likely to result in dire injuries at lower speeds than head-on collisions. Defending current regulations and practices, the juvenile products trade group says the crash test is more severe than 98 percent of real-life frontal accidents in the U.S. But concerns date back nearly a decade that meeting the government standard is not enough. In a 1999 letter criticizing car-seat manufacturers, Martinez, the NHTSA administrator at the time, wrote: "With the safety of our nation's children at issue, mere compliance with the minimum requirements of the standard is not enough." To spur manufacturers to go beyond the minimum and make safer seats, Martinez argued that the government should rate child seats the way it rates the safety of cars and trucks. That, he said, would persuade makers to invest in improving their products because some consumers would pay more for a highly rated car seat. In 2005, long after Martinez had left NHTSA, the agency announced it wouldn't implement such a rating system, in part because it was hard to draw meaningful comparisons for consumers. For instance, when NHTSA put child restraints in the back seats of new cars in crash tests, the agency found it difficult to sort out whether the performance differences were due to the car seats or the vehicles. NHTSA said more research was needed, and the agency continues to consider such a safety rating system. "Parents should have a right to know how well the seats were made," Martinez said in a recent interview. Speaking generally about the industry, Martinez said some car-seat makers withheld unfavorable tests from the government. "What we found was that they'd run multiple tests. And the ones that passed they'd submit, and the ones that didn't they wouldn't submit. That's no way to guarantee safety." Companies, he argued, "need to submit everything, not just their successes. We need to know about the failures too. There needs to be transparency." (EDITORS: BEGIN OPTIONAL TRIM) When Evenflo sought a recall of its On My Way infant seat in the summer of 1995, the company made a disclosure: Four of its own tests showed that children could cut or pinch themselves if they reached under the seat pad and touched a crack in the plastic shell. Evenflo notified the government. It offered a free remedy to any customer who wanted to reinforce one of the nearly 200,000 seats it had sold. But other tests in the company files stayed private. Those tests showed cracks far more troubling. In some, the plastic hooks that secured the On My Way to the seat belt broke into pieces, allowing the seat to fly off the testing bench with the baby-size dummy strapped in, according to footage Evenflo disclosed during litigation. The company was not required to inform the government of those results because those tests were done on prototypes or on seats, Evenflo said, that were "evaluated under conditions different than those required" by the federal standard. A court deposition from Evenflo's director of product safety, research and development, however, illustrated how the self-policing of child safety seats can keep regulators and consumers ill-informed about potential hazards. "We were aware that in certain tests you could break the seat and it could actually come out from under the seat belt," the safety director, Randolph Kiser, said in the deposition taken for a lawsuit filed by a Montana family. He dismissed the significance of some of the tests. One was performed at 30.8 miles per hour, Kiser said; the U.S. standard is 30 miles per hour. In some, Kiser said, the seats were reclined 10 to 12 degrees farther than in Evenflo's usual tests. In others, labs applied the Canadian safety standard, which is slightly different from the U.S. version. Kiser was questioned by Evan Douthit, an attorney representing the family of 4-month-old Tyler Malcolm, who died in a 2000 highway accident in which his car seat broke loose from a seat belt and flew out of the vehicle. That seat was the On My Way, model 207, which was the next-generation version of the model 206, the one Evenflo had recalled as a pinch hazard. Douthit asked Kiser: "Aren't the parents entitled to be told what the true risks are to the child so they can make the decision whether or not they want to use the seat with their child?" Kiser responded that Evenflo told consumers "there's a crack" and that the flaw meant the seat didn't comply with federal requirements. "There's a million different things that could happen," he explained. "We can't possibly envision all of them." The company denies the Malcolms' claim that its product is responsible for Tyler's death. Noting that he died in the later-model 207 On My Way, Evenflo said that model never failed any of the more than 300 tests performed under U.S. and Canadian standards at independent labs in the seven years it made the seat. "We stand by the integrity and performance of the product," wrote Evenflo General Counsel Thomas Sparno. Douthit, however, said test results that Evenflo has turned over showed that the model 207 seats cracked in a similar area, near the belt guides, as recently as 2001. It's unclear under what conditions those tests were performed. The Malcolms' lawsuit went to trial this week, the seventh anniversary of the crash. (END OPTIONAL TRIM) Even when seats fail NHTSA's own safety tests, the agency doesn't always take those models off the market. From 2003 through 2005, NHTSA did not recall seven of the 10 child safety seats that failed its crash tests. Manufacturers are able to avoid recalls if they can convince the government that the failed tests don't match the companies' own results and are close enough to meet the standard. In March 2005, for instance, Dorel's popular Eddie Bauer 3-in-1 and a related seat called the Cosco Alpha Omega 5-point allowed the head of a dummy proportioned like a 3-year-old to whip about an inch too far forward during NHTSA crash testing. Excessive forward movement can cause nerves in the spine to snap and lead to paralysis, or the child's head can hit something in the car, leading to head or spinal injuries. Dorel attorneys said NHTSA performed the tests incorrectly. The agency denied that claim but said that after it reviewed Dorel's test results and complaint data, it concluded there wasn't a safety problem. In a written statement, NHTSA said it is unaware of any safety issues that consumers had with any of the seats it chose not to recall after test failures. But five months after the Eddie Bauer 3-in-1 failed the agency's tests, the family of a Missouri child alleged that their 1-year-old daughter, Hailey Schmidt, became a quadriplegic when her head snapped too far forward in a January 2005 head-on crash involving an Eddie Bauer seat. Dorel said it reported the Schmidt case to NHTSA later that year. The company settled a lawsuit with Hailey's parents without admitting fault. Stores continue to sell versions of that seat and the related Alpha Omega. Explaining why the company settles such cases, Weisenthal, Dorel's general counsel, said it weighs the risks of lawsuits given the various liability laws around the country and sometimes settles "even if your product is 100 percent beyond reproach." "The person in the lawsuit who is the most sympathetic," he added, "is the child." (EDITORS: BEGIN OPTIONAL TRIM) One of the most controversial seat designs in the last two decades _ one that led to numerous lawsuits as well as warnings from public health advocates _ was the shield booster. The design fitted a child's abdomen between the car's seat back and a plastic shield but provided little upper-body restraint for smaller children. While the car seat passed the U.S. government-mandated safety tests, smaller children were ejected in real-world crashes. Some children who weren't thrown from the seat were disabled in collisions when their spines stretched too far as their upper bodies curled over the shield. Dorel has settled dozens of shield-booster lawsuits without admitting fault, according to Doug Gentile, a Kansas City attorney who has represented plaintiffs in three such suits. One of Gentile's Dorel shield-booster cases settled for $13 million, court records show. Dorel sold the same shield booster with different warnings in two countries: It told Canadians the seat was safe only for children over 40 pounds while it told U.S. consumers the seat was safe for children as light as 30 pounds. Attorneys for the company said Dorel was following Canadian government requirements and never believed the Cosco seat was unsafe for small children. They also point to an analysis done by a Dorel consultant who concluded that there were far fewer deaths from Dorel shield boosters than would be expected given the model's popularity. But the American Academy of Pediatrics, which for years had raised concerns about shield boosters, unequivocally told parents in 1996 not to use them for children under 40 pounds. By then, most other manufacturers of shield boosters had stopped making them. But Dorel launched a new model, the Grand Explorer. With little competition from comparably priced seats _ the Grand Explorer cost less than $20 on sale at some big-box stores _ Dorel sold more than 10 million shield boosters between 1985 and 2004, when it stopped making them. Three years after the pediatricians' warning, a Dorel marketing executive was preparing for a presentation at a child safety seat conference. "Why do we continue to recommend the Explorer, in particular, for children under 40 pounds?" she asked a Dorel product manager in an e-mail disclosed during a lawsuit. "Why wouldn't a 35-pound child be in a convertible car seat or a high back booster?" Those types of seats offer more upper-body protection. "Why?" the product manager responded. "It still sells." He added, "For the price, it is still an excellent product." (END OPTIONAL TRIM) (EDITORS: STORY CAN END HERE) An Oregon car crash in the spring of 2000 barely damaged the vehicles involved. No one was hurt during the broadside collision. No one except an 18-month-old girl. She suffered a skull fracture and bleeding in her brain even though the speed of the crash, according to a court deposition, was estimated at just 10 miles an hour. The girl was airlifted to Emanuel Hospital in Portland, where the hospital's child safety seat coordinator, Diane Janzen, was stunned. How, the trauma nurse asked herself, could the toddler suffer such severe head injuries when she was properly strapped into her Cosco Touriva car seat? Janzen decided to do some sleuthing. Pulling back the fabric of the seat to reveal the plastic shell underneath, she found cutouts _ 2-inch-by-36-{7-inch U-shaped notches with rigid plastic edges _ on what normally would be the smooth plastic sides of the seat at the same level as the child's head. After the girl recovered, Janzen asked the toddler's parents to place the girl, with bandages still on her head, in the seat. The rigid notch, Janzen concluded, was precisely where the girl's head hit the side of the seat. She snapped photos. What followed Janzen's discovery reveals how the nation's largest car-seat maker reacted to warnings about safety flaws _ even when those alarms came from inside the company. The notch served no purpose in the model used by the Oregon family. It did in another model, and car-seat makers save money by using the same shell for multiple seat styles. Photos in hand, Janzen explained her concerns about the notch to a senior engineer and a marketer at Dorel during a June 2000 car-seat conference in Texas. She suggested that Dorel eliminate the cutout or at least cover it with the kind of foam that lines bike helmets. During a question-and-answer session at a workshop that same day, Janzen again raised her concerns about the Touriva notch. Richard Glover, the senior Dorel engineer, "said something to the effect of I was just a nurse and he was an engineer," Janzen recalled in a deposition as part of a lawsuit, "... and actually furthermore, he said, `This is only one child.'" Glover two months earlier had testified in a lawsuit in which a Texas family alleged that their daughter suffered brain damage after hitting her head on the notch of a Touriva. Janzen followed up with a letter to Dorel's top car-seat executive _ describing the Oregon toddler's injuries, the notch and Glover's response _ and told the company she no longer would purchase Cosco seats for needy patients in her network of hospitals, according to her testimony. She said no one from Dorel ever contacted her. Glover did not return phone calls seeking comment. He said under oath in a different case that he did not believe the notch was a safety hazard but took Janzen's complaint seriously. The company began investigating ways to make the sides of the Touriva smooth, Glover testified. The following year Dorel hired an engineering consultant to design a plastic cover for the notch. That consultant said under oath that a senior Dorel engineer told him the company wanted to cover the cutout because it could cause head injuries. But Dorel never used that design, which would have cost the company 24 cents per seat, according to court depositions. The plastic notch cover wouldn't work because it popped off during crash tests, Glover said in his deposition. Pressure to make the change continued to build. According to minutes from an April 2002 Dorel meeting, the product standards chief for its car-seat division said eliminating the notch "has to happen." In September of that year, a Dorel engineer described the notch as "a child safety concern" in a document sent to at least one company vice president. The Touriva was such a popular seat that three molds at Dorel's Indiana factory produced shells simultaneously. In 2001 alone, Dorel racked up nearly $25 million in Touriva sales. In order to fix all three Touriva molds at the same time, Dorel would have had to halt Touriva production for about eight weeks _ a loss of roughly $4 million in sales, according to the deposition of a company engineer. Instead, beginning in 2003, Dorel began changing the molds piecemeal. While it eliminated the notch from one mold, the factory's two other molds continued to make seats with the cutouts. A Dorel engineer in 2003 expressed frustration with how Dorel management was making him change one mold at a time. "The more shells we have both ways, the more questions will be asked why some and not others," the engineer wrote in a memo. As late as 2005, Dorel still made Tourivas with the hidden notches. According to Weisenthal, the company's general counsel, the Dorel employees who raised questions about the cutout did not believe the notch was a safety concern. Rather, they were worried that plaintiffs' lawyers could use the existence of the notch to extract money from Dorel, he said, adding that the company eliminated the notch to "take a story off the table." (EDITORS: STORY CAN END HERE) One such story unfolded in Kansas in 2002. In June of that year, Nubia Cardenas went to a Wal-Mart and bought a Touriva _ a seat manufactured after Janzen warned Dorel about her patient's head injury, after the engineering consultant designed a cover for the notch and after a company executive said eliminating the notch had to happen. Leeyiceth Reyna, Cardenas' 16-month-old daughter, suffered severe brain damage and other injuries during an October 2002 side-impact crash in Garden City, Kan. The family alleged that her head hit the hard plastic area around the notch, leaving her blind and unable to walk. Now 6 years old, Leeyiceth _ who goes by Lily _ depends on a feeding tube for sustenance. Before the accident, she was learning both English and Spanish. Now her speech is limited to goo-goos and gah-gahs. "It's pretty much like taking care of a baby," said her mother, "except she's big." An expert hired by Dorel in Lily's case concluded that the child's seat was improperly installed and the accident severe. He ran crash tests that concluded the Touriva performed better than a seat touted by an expert on Lily's side. Still, Dorel settled her case and another notch case for confidential amounts without admitting fault. "When millions of units of a particular product are in use over many years, and you have only a small handful of reported injuries, you must ask yourselves whether those injuries should be attributed to the design of the unit or to the unique circumstances of the accident," Wally Greenough, a Chicago attorney hired by Dorel, said in an e-mail. On a recent morning, as Lily's kindergarten classmates sang a song about the days of the week, Lily rocked back and forth but remained silent. Occasionally she turned her head sideways as if glancing at visitors to the classroom, her eyes vacant. ___ (Chicago Tribune correspondents Maurice Possley and Steve Mills contributed to this report.) ___ (c) 2007, Chicago Tribune. Visit the Chicago Tribune on the Internet at http://www.chicagotribune.com/ Distributed by McClatchy-Tribune Information Services. _____ PHOTOS (from MCT Photo Service, 202-383-6099): CARSEATS For reprints, email [email protected], call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA. Copyright 2007 Chicago Tribune |