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Debunking NHTSA myths in trucking litigation: jurors put a lot of faith in government regulation of the trucking industry. They need to understand that federal safety standards and defect investigations do not ensure that trucks on the road are safe.

Article Excerpt
Large trucks play a major role in both the occurrence and consequences of traffic crashes. According to the National Highway Traffic Safety Administration (NHTSA), 442,000 large trucks were involved in crashes in the United States in 2005, resulting in 5,212 fatalities and 114,000 injuries. (1)

These figures could be lower if safety-related laws and regulations governing the trucking industry were more stringent. But truck manufacturers have resisted measures that would require them to design and manufacture safer vehicles.

Relatively lenient federal safety standards and NHTSA's limited use of product recalls serve truck manufacturers well in products liability suits arising from truck crashes. Defendant manufacturers often assert that their vehicles are "safe" because they meet government standards and are not defective because the government has not recalled them. In some jurisdictions, defendants are helped by statutes or rules that create a rebuttable presumption that a manufacturer is not liable if the product complied with a mandatory federal standard or regulation. (2)

The challenge for plaintiffs in trucking litigation is to show that federal standards represent only the minimum level of safety that truck manufacturers must provide, and that the lack of a product recall does not indicate that a truck was free of safety-related defects.

Under the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), (3) manufacturers self-certify that their new vehicles and equipment comply with applicable federal standards but are not required to conduct testing before certification. (4) Manufacturers have an independent obligation to recall trucks for safety-related defects or noncompliance with safety standards.

Because NHTSA's minimum standards are not intended to define what is a safe product under all circumstances, compliance does not relieve manufacturers of any duties or responsibilities under common law to design safe vehicles. Congress specifically established in the Safety Act that compliance with Federal Motor Vehicle Safety Standards (FMVSSs) does not provide an exemption from liability at common law. (5)

Federal standards do not guarantee safety. Since FMVSSs are generally performance standards, manufacturers are free to design a part or system in anyway that produces the required performance. A company could choose a good design resulting in a nondefective product or a poor design resulting in a defective one--and yet both could meet the applicable FMVSSs.

More than 50 FMVSSs are currently in effect. (6) Most were issued 30 or more years ago and do not represent the state of the art in vehicle design or performance. FMVSSs are issued and maybe upgraded through rulemaking, a quasi-legislative process in which the agency takes into account the views of constituencies, including the powerful and influential motor vehicle industry. Realistically, it is difficult for NHTSA to enact a standard that the industry opposes, particularly in the deregulatory political environment that has existed since 1981.

To counter the typical defense argument that a truck's compliance with federal safety standards shields the manufacturer from products liability, plaintiff lawyers should show that NHTSA sets FMVSSs as minimum, not maximum or optimal, performance standards; they do not mandate that trucks be equipped with the latest safety technology. (7) Also, the standards apply only to new vehicles, even though a truck's safety features, designed to comply with the standards, may degrade with use and later fail to meet FMVSS performance levels. And most FMVSSs, particularly the crashworthiness standards, do not apply to large...

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