The NHTSA Decision Tree and Its Effects on Biomechanics Analysis in the NCAP Program

Transcription

1 The NHTSA Decision Tree and Its Effects on Biomechanics Analysis in the NCAP Program Christopher J. Bonanti Engineering Systems, Inc L Street, NW, 5 th Floor Washington, DC (202) cjbonanti@engsys.com

2 Christopher J. Bonanti, M.Eng. is a senior managing consultant for Engineering Systems Inc. (ESI). As a consultant, he specializes in regulatory and compliancerelated issues in all modes of transportation, as well as in the product liability spectrum. Mr. Bonanti has more than 20 years of experience leading and managing regulatory, legislative, and infrastructure projects for all modes of transportation, including rail, motor vehicle, and aviation. As a former member of the U.S. Senior Executive Service, he served as the Associate Administrator for Rulemaking at the National Highway Traffic Safety Administration (NHTSA). He was the senior executive responsible for developing, writing and implementing rules, regulations, and standards for all ground transportation vehicles sold within the United States, including the automotive, trucking, motor coach, and motorcycle industries. These regulations included all Federal Motor Vehicle Safety Standards (FMVSS), and the Corporate Average Fuel Efficiency (CAFE) standard regulations for automobiles and light trucks, as well as fuel efficiency standards for medium and heavy-duty trucks. He also served as head of the U.S. Delegation to United Nations World Forum for the Harmonization of Vehicle Regulations. Mr. Bonanti holds a master of engineering from the Pennsylvania State University and a bachelor s of science from Rutgers University. He will graduate from the Kellogg School of Management at Northwestern University in June 2017 with a master of business administration.

3 The NHTSA Decision Tree and Its Effects on Biomechanics Analysis in the NCAP Program Table of Contents I. Introduction...5 II. Factors Leading to the Establishment of the NCAP Program...5 III. Decision Protocols Used by NHTSA to Make Changes or Upgrade the NCAP Program...6 IV. Crash Tests in NCAP that Have an Impact on Biomechanics...7 A. Full Frontal Rigid Barrier Crash Tests...7 B. Frontal Oblique Test...8 C. Injury Criteria and Risk Curves...8 D. Side Movable Deformable Barrier (MDB) Crash and Side Pole Oblique Crash Tests...9 E. Rollover Risk Curve...10 V. The Admissibility of NHTSA s NCAP Testing Results in Court...10 The NHTSA Decision Tree and Its Effects on Biomechanics Analysis... Bonanti 3

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5 The NHTSA Decision Tree and Its Effects on Biomechanics Analysis in the NCAP Program I. Introduction This paper provides an overview of the main factors that led to the establishment of the New Car Assessment Program (NCAP) and discusses how the National Highway Traffic Safety Administration (NHTSA) uses its non-regulatory initiative functions to facilitate higher levels of vehicle safety within the United States. The paper also reviews NCAP crashworthiness testing and compares it to similar Federal Motor Vehicle Safety Standards (FMVSS) automobile manufacturers must currently comply with. The biomechanics that are involved in NHTSA s crash tests are significant. Crash test devices such as anthropomorphic test devices (ATDs), used to simulate vehicle occupants, enable the agency to develop a better understanding of crash pulse and its impact on injury causation. Lastly, this paper examines how NCAP crash data may be used to provide a basis for litigation support, reviewing two cases that serve as examples of how, and under what circumstances, judges may allow NCAP crash pulse data to be utilized by expert witnesses and be admitted into evidence. II. Factors Leading to the Establishment of the NCAP Program The National Highway Traffic Safety Administration (NHTSA) is charged by the U.S. Congress through its authorizing legislation to save lives on America s roadways, prevent injuries that are sustained by occupants in motor vehicles, as well as, reduce the number of motor vehicle crashes. To complete its mission, the agency utilizes several safety, regulatory, enforcement (defect investigations and recalls), and behavioral mechanisms. In an effort to improve vehicle safety, the agency established the Federal Motor Vehicle Safety Standards (FMVSS), which fulfills its legislative mandate under Title 49 of the United States Code, Chapter 301, for Motor Vehicle Safety. FMVSSs are regulations that must be complied with by original manufacturers of motor vehicles (OEM) and manufacturers that produce equipment items that are specifically spelled out in the regulations. OEMs must conform and certify compliance with each of the FMVSSs that correspond to the type of vehicle or equipment they manufacture. Besides the FMVSS regulations that NHTSA has developed for regulatory and compliance purposes, the agency utilizes the NCAP program to serve as an incentive for manufactures to make safe vehicles. This program enables vehicle manufactures to compare their vehicle s safety record to that of their competitors and, in many cases, make improvements that often exceed minimum standards required under FMVSS. In the late 1960s and early 1970s, consumers who were in the market to purchase new vehicles had no way of comparing and evaluating safety features. This prompted Congress to establish Title II of the Motor Vehicle Information and Cost Savings Act of 1972, Pub.L , 86 Stat. 947 which required NHTSA to establish the NCAP program. Under the auspices of NCAP, it was Congress intent to utilize vehicle crash tests to help evaluate safety differences among various motor vehicle makes and models. The agency initiated the NCAP program in 1978, beginning with frontal crash testing and documenting injury readings provided by ATDs (or otherwise known as crash test dummies). Initially, when NHTSA began testing, motor vehicle manufactures were reluctant to participate in the voluntary program. According to NHTSA, vehicle manufactures were slow to respond to the program by way of redesigning or making changes to their vehicles to improve vehicle safety performance ratings. The NHTSA Decision Tree and Its Effects on Biomechanics Analysis... Bonanti 5

6 Between 1979 and 1994, NHTSA documented frontal crash tests as part of the NCAP program, but did not assign star ratings until After stars were introduced to help consumers evaluate the differences between similar model vehicles, OEMs changed their opinion regarding the program. Both the agency and vehicle manufactures realized there is a correlation of the number of NCAP stars to the salability of a vehicle. In short, stars sell cars! In an attempt to increase safety on vehicles and challenge the motor vehicle industry, NHTSA included side impact crash tests for model year The agency then established a new test for rollover resistance assessment. This test measured static properties [on passenger vehicles] as reflected by a calculation known as the Static Stability Factor and was initiated with the first ratings in model year The test was amended for the model year 2004 vehicles to include the results of a dynamic test for rollover resistance. In 2008, NHTSA published a notice announcing that changes to both the frontal and side crash ratings criteria would become more stringent by upgrading crash test dummies, which would include the 5 th percentile female dummy, and by establishing new injury criteria, adding a new side pole crash test, and creating a single overall vehicle score that reflects a vehicle s combined frontal crash, side crash and rollover ratings. The agency went further indicating that it would include information on crash avoidance technologies that have potential safety benefits as part of the NCAP program. Each of these new initiatives was tested in model year In an effort to further enhance the NCAP program, NHTSA requested and published industry and public comments. The agency s decision to continue to upgrade the NCAP program with safety initiatives has enabled NHTSA to encourage vehicle manufactures to voluntarily improve their vehicle designs so they can ensure that they receive the highest NCAP rating possible. III. Decision Protocols Used by NHTSA to Make Changes or Upgrade the NCAP Program While NHTSA considers the NCAP program consumer education, it also serves an important tool to accomplish the agency s goals of increasing safety and decreasing fatalities and injuries. The NCAP program is designed to provide consumers with comparative information that focuses on the safety performance of new vehicles that OEMs are offering for a specific model year. According to NHTSA, the comparative information on new vehicles is provided to consumers to: (1) assist consumers with their vehicle purchasing decisions, (2) encourage manufactures to improve the current safety performance and features of new vehicles, and (3) stimulate the addition of new vehicle safety features. The NCAP program is not an enforcement tool that the agency can use to ensure compliance with regulations, such as the FMVSSs which are established under 49 U.S.C. Chapter 301. Since the NCAP program does not meet the criteria under the Administrative Procedure Act of 1947, as NHTSA s rulemakings are required to meet, the agency issues Requests for Comments (RFC) instead of a Notice of Proposed Rule (NPRM) when offering upgrades or changes to the NCAP program. When NHTSA issues a rulemaking that is required to be complied with by vehicle manufactures, the agency is required to publish: (1) a NPRM first (after which the public and industry are allowed to provide comments on the proposal) and (2) a Final Rule, which establishes when the proposed regulation will become effective and what new requirements must be met. This rulemaking process generally takes several years for an initiative that would be classified by the President of the United States Office of Management and Budget (OMB) as a significant rule. However, if a rulemaking initiative is designated by OMB as nonsignificant, the entire rulemaking process may take just a couple or few years. The OMB is the deciding factor in deter- 6 Product Liability February 2017

7 mining which rulemaking initiatives are significant or non significant. The President has a major role in determining if a significant rule can even be published as an NPRM or Final Rule. According to Executive Order Regulatory Planning and Review, a significant regulatory action is defined as having an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Being knowledgeable about the differences between significant and nonsignificant rulemaking is important to understanding why NHTSA has taken the position that the NCAP program does not need to comply with either Executive Order or the Administrative Procedure Act. This enables NHTSA to initiate changes to the NCAP program without having to consider the financial impact these changes may have to industry or the consumers. Since NHTSA publishes its proposed changes to the NCAP program in an RFC, industry has the ability to provide data and evidence to support a change to an agency proposal. Although the motor vehicle industry has seen significant improvements in consumer decision making, for instance making NCAP information available during new car sales, the industry should continue to encourage NHTSA to include both crashworthiness and crash avoidance data to be included in NCAP. If included, it will enable the industry to achieve the highest star rating under the NCAP program. IV. Crash Tests in NCAP that Have an Impact on Biomechanics A. Full Frontal Rigid Barrier Crash Tests Both NCAP and FMVSS 208 use a full frontal rigid barrier crash test. The NCAP test utilizes 56 km/h (35 mph) versus a 48 km/h (30 mph) crash test used for enforcement purposes. Although the NCAP frontal rigid barrier crash test is more stringent then FMVSS 208, vehicle manufactures consider it a challenge to design a vehicle that receives the highest 5-Star rating under NCAP. Since the injury causation criteria is high, it is not always a given that vehicle manufactures will receive a 5-Star safety rating for frontal crash testing. As of December 2016, NHTSA is still using the Hybrid III-50M ATD to evaluate occupant protection. The 50M designation means the dummy is designed to simulate a 50 th percentile male. NHTSA also uses the Hybrid III-5F dummy in the front passenger seat during these tests, which simulates a 5 th percentile female. NHTSA published a RFC in 2015 that indicates that the agency intends to replace the Hybrid III-50M with a new dummy called the THOR-50M (Test Device for Human Occupant Restraint THOR). This dummy is supposed to simulate a more accurate depiction of how a 50% male occupant reacts to forces applied during a full frontal crash test into a rigid barrier. Although the THOR-50M may have more bio-fidelity during a crash test, the availability of these test devices are limited and OEMs have been unable to verify through research the biomechanical differences that may arise as part of their vehicle designs. This issue must be resolved for the OEMs before injury causation data can be used for determining the impacts sustained by these test devices. Further, due to the higher biofidelity that has been shown by the THOR test devices, it may require the motor vehicle industry to focus on this issue to ensure the outcome of NCAP tests will not be used against them in litigation. On the other hand, since the THOR device has been designed to respond similarly to the human body during crash tests and has more biofidelity in comparison to other test devices, such as the Hybrid III-50M, the injury measurements obtained during frontal crash tests could be used to benefit a legal defense in the future. One could argue that the current NCAP frontal rigid barrier crash test injury results, using a Hybrid III-50M, may be used in court to demonstrate injury causation resulting from forces applied during a crash The NHTSA Decision Tree and Its Effects on Biomechanics Analysis... Bonanti 7

8 pulse. At this time, NHTSA uses the Hybrid III-50M as the subject test device in the driver s front seat for both the NCAP full frontal rigid barrier crash test as well as the frontal barrier compliance crash test found in FMVSS 208. In their 2015 RFC, regarding upgrades to NHTSA s NCAP program, the agency stated that the Hybrid III provides an acceptable level of safety performance for NCAP and regulatory compliance, but the agency believes that a more sensitive evaluation tool would be beneficial to help differentiate between the advancements in vehicle safety developed since the HIII-50M ATD was incorporated into Part 572 in This statement by NHTSA provides a strong basis for inclusion of crash test results into litigation after NHTSA incorporates the THOR device into the testing protocols. B. Frontal Oblique Test As part of NHTSA s 2015 NCAP RFC, the agency provided reasoning why a frontal oblique crash test should be included as part of the NCAP program. The agency references a September 2009 NHTSA report, Fatalities in Frontal Crashes Despite Seat Belts and Air Bags, DOT HS 811, 202, that focuses on fatalities in frontal crashes where both drivers and passengers were wearing seat belts and their air bags deployed at the time of collision. The report, attempts to explore the reasons fatalities are still occurring in these accidents. NHTSA also established a large research program to look into this issue. The agency plans on using the THOR test device as part of this new crash test protocol within the NCAP program. The agency plans to modify the use of the Moving Deformable Barrier (MDB) currently used for compliance testing under FMVSS No. 214, as well as, the side impact crash testing completed as part of the current NCAP program. NHTSA is suggesting that the MDB be modified and called the Oblique Moving Deformable Barrier (OMDB) for this testing. The OMDB will incorporate changes to the currently used MDB and will incorporate an increase in the faceplate width and the test device s suspension to reduce bouncing at high speed. It will also increase the weight of the device, as well as, increase the honeycomb depth and stiffness. NHTSA believes that this device has the best opportunity to simulate vehicle interaction during a 35% overlap frontal crash test. This test will have the highest impact speed of any NCAP crash testing protocol. The OMDB will impact a stationary vehicle at 90 km/h (56 mph) while the test vehicle is placed at a 15-degree oblique angle to the OMDB centerline. NHTSA will simulate a test condition to create a longitudinal delta-v of about 56 km/h (35 mph). Although NHTSA wants to include this testing into the NCAP program, the Insurance Institute for Highway Safety (IIHS), which crash tests vehicles for the insurance industry, has already initiated a similar crash test. The IIHS s test is considered a small overlap frontal test, which requires a vehicle to linearly impact only 25% of the vehicle s width with a rigid barrier. NHTSA explains that for most vehicles [this test] does not engage the primary longitudinal structure of the front end of the vehicle. The agency believes its frontal oblique testing protocol, which it wants to establish as part of NCAP, does interact with at least one frame rail of the vehicle, often resulting in a more severe crash pulse that puts great emphasis on restraint system countermeasures. If NHTSA is successful in establishing the frontal oblique crash test it would be beneficial for vehicle OEMs to consider using both the crash pulse as well as the injury causation results as part of their litigation strategy. C. Injury Criteria and Risk Curves According to NHTSA s 2015 NCAP RFC, the agency plans on changing the metrics for several injury criteria and risk curves when the THOR-50 ATD is incorporated into the NCAP testing regime. The agency 8 Product Liability February 2017

9 already uses head injury criterion (HIC 15 ) for compliance testing within FMVSS No. 208 and current frontal NCAP crash tests, but with the integration of the THOR-50 ATD the agency intends to keep the same metric for assessing head injury risk. Currently, the agency has an established neck injury criterion (Nij) that it uses as a metric for assessing neck injury in frontal crashes, but according to the 2015 NCAP RFC, the agency intends to use a modified, THOR-specific version. NHTSA s intent is to use one of two different approaches, either: (1) updating the current Nij critical values to include values that would represent the new THOR test device or (2) for the agency to implement a THOR-specific injury criterion. After significant post-mortem human subject (PMHS) testing for chest injuries, the agency intends to use one or more multi-point thoracic injury criteria to predict chest injury using the new THOR test device. Another new area that NHTSA intends to measure with the THOR is how the abdomen reacts to injuries during crash pulses. The agency intends to use a measurement based on percent compression to predict abdominal injury. The agency also plans on using an acetabulum load criterion to assess potential pelvis injuries with the THOR device. NHTSA plans on continuing to use peak femur axial forces for assessing upper leg injuries, as they do for FMVSS No. 208 and frontal NCAP crash tests, but the THOR device will enable the agency to look further at femur compressive elements that allows for a human-like response under axial compression. The agency s goal is to also use new injury risk curves for the lower extremities when incorporating the THOR device into crash testing. Each of these focused criteria will enable NHTSA to better understand potential injuries that could result in frontal crash tests when the new oblique test is initiated within the NCAP program. The results will also enable counsel to use the results of these tests in court. D. Side Movable Deformable Barrier (MDB) Crash and Side Pole Oblique Crash Tests The side MDB NCAP crash test was introduced in 1996, and has played a major role in the way vehicles are both designed and tested. The crash test uses a MDB device crashing into the test vehicle at a 90-degree angle. The test is designed to simulate a T-Bone or intersection type crash in the real world. As is similar to the full frontal crash test, the NCAP test speed is higher than its comparable compliance test found in FMVSS No The NCAP side MDB test is completed at 61.9 km/h (38.5 mph) versus the FMVSS No. 214 test, which is 53.9 km/h (33.5 mph). The dummies used as part of this NCAP test are the ES-2re 50 th percentile male dummy in the driver s seat and the SID-IIs 5 th percentile female dummy in the rear passenger s seat. These are the same dummies that are used for compliance testing in FMVSS No Unlike the side MDB NCAP crash test, NHTSA established another side crash test for model year (MY) 2011, but with the test vehicle impacting a pole that simulates a telephone pole or a tree. This test is similar to the side pole crash test found in FMVSS No. 214 for compliance. The NCAP test uses protocols that require the test vehicle to be towed at 32 km/h (20 mph) into a rigid pole. According to NHTSA, vehicle manufacturers have responded very well to the side MDB and side pole NCAP tests when considering the design of their vehicles. NHTSA indicates that on a star rating of 1-5, most vehicles achieved 5 stars in both side impact crash tests in MY2015. Since the agency believes the industry has done well meeting the NCAP side impact test challenges, NHTSA plans on changing the dummies used as part of both of the crash testing to have better occupant injury data. The proposed changes to these dummies are similar to the ones identified above for the THOR test device. The NHTSA Decision Tree and Its Effects on Biomechanics Analysis... Bonanti 9

10 E. Rollover Risk Curve NHTSA established a risk of rollover criterion test for NCAP in 2001 based on the vehicle s tire width and the height of the vehicle s center of gravity. This was done to provide consumers with a rollover risk that could be derived from the vehicle s Static Stability Factor (SSF). According to NHTSA, they originally derived the SSF from 226,117 real-world crashes analyzed by the agency. A few years later, in 2003, NHTSA added a dynamic test to the NCAP rollover criteria. As of September 1, 2011, electronic stability control is required in all new motor vehicles sold in the United States. This new technology is designed to decrease the ability for vehicles to rollover. NHTSA planned to recalculate the risk of rollover as part of its 2008 NCAP upgrade, but it did not have data that could enable this action to take place. Since then, NHTSA has continued to delay the rollover reformulation and its rating system as part of NCAP and it is unknown when the agency will take proactive measures to change the testing protocols. V. The Admissibility of NHTSA s NCAP Testing Results in Court While the use of NCAP testing results has seen limited application in the courts, the two cases discussed below examine the circumstances where NCAP data and information was deemed admissible. In July 2002, the driver of a 1995 Mazda Miata suffered injury upon striking his head on his vehicle s windshield during a frontal barrier collision with another motor vehicle. See Robert Alan Christie v. Mazda Motor of America, Inc., and Mazda Motor Corporation, 2006 U.S. Dist , No. 3:04-CV-280 (2006). In accordance with his expert witness testimony, a licensed professional engineer, the plaintiff alleged that the vehicle s occupant protection system, supplemental restraint system and seat system was in a defective or unreasonably dangerous condition allowing him to become unrestrained during the accident and to strike his head on the top of the windshield. More specifically, the plaintiff s expert asserted that the retractor s design was inherently defective and unreasonably dangerous because the retractor would not lock up consistently and that this spooling-out is conducive to and consistent with inertial unlatching of the buckle because it reduces tension in the webbing and subsequently lowers the forces acting between the latch plate and the buckle. He testified that inertial latching occurred at accelerations rates of magnitudes and duration consistent with those experienced by vehicles and vehicle components in automobile collisions and that the inertial unlatching could have occurred either when the rear end of the vehicle came up upon impact or when the rear end of the vehicle came back down and landed on the ground. Mazda Corporation filed a motion to dismiss the expert s testimony challenging it under Rule 702 of the Federal Rules of Evidence and Daubert. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Rule 702 of the Federal Rules of Evidence provides, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Daubert outlines standards for the admissibility of expert witness testimony. Under Daubert, the court must determine whether the reasoning or methodology used is scientifically valid and is properly applied to the facts at issue in the trial. The test under Daubert is not the correctness of the expert s conclu- 10 Product Liability February 2017

11 sions but the soundness of his methodology. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995). Mazda argued that the plaintiff s expert s methodology was inherently flawed because he relied upon NHTSA s NCAP testing program results in conducting his calculations and formulating his opinions and conclusions. Specifically, that he unreasonably used NCAP data in determining the acceleration forces imparted on the vehicle in the collision as well as the magnification of those acceleration forces. Additionally, Mazda argued that these results were not applicable to this case because NHTSA s NCAP testing measured acceleration rates in rollover crashes and not frontal barrier collisions as occurred in this accident. Plaintiff s expert explained that it was not possible for him to measure the G-force calculations in this accident. He indicated in his deposition that he could not conduct such a calculation without knowing the time duration, or pulse, of the collision, which was unavailable. He asserted that NHTSA s NCAP data was still relevant because either type of crash [whether a rollover or frontal barrier collision] could result in a pulse of acceleration through the floor pan. The court denied Mazda s motion and allowed the expert s testimony to be admitted and evaluated by the jury. The court found that his methodology, and specifically his reliance on NHTSA s NCAP testing results, was not unreliable and was specifically relevant to the facts at issue in the case. Generally, trial judges are afforded broad discretion in determining whether an expert s testimony complies with the standards outlined in Daubert. A 1992 federal case serves as another example. The federal court for the eastern district of Pennsylvania similarly exercised its broad authority and admitted NCAP videotaped rollover information and data into evidence. See Dorsett v. American Isuzu Motors, Inc. and Isuzu Motors, LTD., 805 F. Supp (Feb. 3, 1992) In this case, the defendant unsuccessfully argued that there was a lack of similarity between the accident in question and NCAP s rollover tests and videotapes. The court noted, foremost, that a decision to admit the evidence was within the court s exercise of discretion. Also, while the NCAP tests were not identical to the accident, they were similar enough to aid the jury in determining what happened. The court explained that the differences were so apparent in between the accident and the NCAP testing that there was no danger in confusing the jury. These cases provide some legal precedence that when information and data is otherwise unavailable or a court believes the information will be of value to the jury, it may be willing to admit research and data gleaned from NHTSA s NCAP testing program. Consequently, and as advocated throughout this paper, it may be prudent for counsel handling motor vehicle accident cases to gain familiarity with the breadth of NHTSA s NCAP testing program as well as its research and available crash test data. The NHTSA Decision Tree and Its Effects on Biomechanics Analysis... Bonanti 11

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