Cycle News - Archive Issues - 1980's

CPSCmemo (Contin ued fro m page J) rece ntly obta ined by Cycle News. " As reference informa tion I have reviewed the In-Depth -In vestiga tio ns, th e Esta blis h ment (Fi r m) In sp ection R eports, a nd th e techn ical man uals of vario us man ufa ctu rers. " As in d ica ted in the re port p repared by Epi de miology , th e co m mon mecha n ism s tha t a ppear to be associated with the seve re inj uries a re th e disl od gem ent of th e o pe ra to r from the veh icl e wh il e it is in mot ion , a n d / or th e overt urning of the vehicle w i t h conseq ue nt e ntra p men t a n d cr us hing inju ries to th e d ri ver. In a ny type of veh icu lar acci de nt where ei ther of these pa tterns are seen (motorcycles, tr actors, bicycles. certai n recreatio na l vehicles), major types of trauma as we ll as fata lities can be a nticipa ted . T he r isk of severe inj ury might the n be descri bed as bein g dependent o n the rider 's a bil ity to adeq ua tely operate the vehicle without encou nteri ng either o f th ese two p ri mary accide n t seq ue nces> " Wh ile reviewing the availa ble data it was not ed fu rther ," Esc h co n tin ued, " tha t in a lmos t every incide nt, (possible exce p tio n of reponed lock in g of brakes): th ere was some type m iscalcu la tio n, di sregard for safety or ina dequate jud gem ents o n the part of th e owner o r opera tor. T hese i ncl uded ex tr a rider s, (o n vehicles speci fyi ng o ne perso n), d riving i n to ta l darkn ess without h eadl ights, crossing steep 'd u n es a t a n excessive rare o f speed, tra veling over ro ugh. rocky terr ain , drivi ng illega lly o n p u blic roads , driving u p a steep incl ine, mistaken u se o f th e vehicle's co ntrols, drivin g ' over terr a in where obs tacles were n o t visi ble . a nd in a ll cases. exceedi ng lethal speeds. Beyond th ese factors the re appea rs to be co m mon lack o f understandin g or co mprehe nsion o f the co mplex i ty of th e vehi cle's ac tua l per fo r ma nce c haracte r is tics. T h is cou ld be due in pan to th e decep tive impression gi ven by a co mfo rtab le appeari ng, tricycl e type vehicle. wit h a wide tread a nd broad wheels which wo uld seem to assure stability." Furt her on in hi s memo, Esch wrote "The q uestion of ris k and ,sa fety in ATVs may no t be u nl ike the same iss ues as w he n seen in Gene ra l Avia tion . H ere, the vas t maj ori ty of acci dents in volve a fac tor o f human j udgement - (w hich ca n in turn stem fro m insufficient ski ll, over co n fide nce, risk-taking , lack of fami lia rity wi th th e veh icle, im proper tra inin g a nd in adequa te experie nce) ; ra ther than a n in he re nt mech an ical defect in th e machine. For th is reason i t m ight be possible for an experi en ced, skilled o pera tor to su ccessfully per form (o r decline to perform ) a gi ven procedure - using th e id entical vehi cle under th e sa me conditions." Esc h went on t o say " .. . it is m y opinion th at AT V saf ety is more dependent on judgement, technical kn owled ge, acquired skill , a n d maturit y than ch ro nolo gical age. I wo u ld n ot see ch ildren gene ra lly to be in a catego ry wher e th ey h ad th e o pportunity to adeq ua tely ac h ie ve these to the degree required for sa fe o pera tio n • of ATVs," 24 T o com me n t on the approach tak en by Com missioner Stuart M . Stat ler of th e Consumer Product Safety Comm ission, write to S heldon Bu tts of th e CPSC, 1111 18th si. W ashi ngto n D,C,20207 and dem and that your letter be included in the official record of th e next CPSC public hearing on A TV safety . Send a copy of your letter to yo u r congressm an or congresswoman and to Cycle New s . . . Editor. RISK By John Ulrich Stacking the deck in D.C . I'm back from a qu ick fly-in, fly-out trip to Wash in gton, D.C. to attend a House Commerce, Consumer and Monetary Affairs Subcommittee hearin g o n ATV safe ty a nd the Consumer Product Safety Com mission's approach to ATV safe ty, a n d w hat I saw di sgusted me. T he hearing was loaded agai ns t ATVs from th e start. The o n ly thi ng th at saved it fro m bei ng a complete rout was the active, pro-ATV stance tak en by Congressman La rry Craig of Idaho , who took the time to look at and co ns ide r the facts and question the app roach ta ken by Com miss io ner St uan M. " Ban 'em" Sta tler, th e guy wh o keep s show ing up on telev isio n sayi ng ATVs a re th e most dan gerous devices ever seen 'o n th e face of th e ea rt h; Sta tler has repeated ly ca lle d fo r a ba n and recall of ATVs. T he h eari ng was pres ided ove r by Su bcommi ttee C hairman Doug Barnard, a n d the wi tness list was prep ared by hi s a ide, Ted j aco bs. Both Barna rd a nd jacobs went ou t of their way to deny that the h ea r ing was biased . Bu t it was o bvious to any body n ot a lready co nvinced that ATVs ' must be elimina ted that the hea rin g ~ a n d the m inds'of Ba rna rd and j acobs - had reache d a co ncl usion before a ny test imony began. All th e a nti-ATV witnesses got to spea k firs t, in the full glare of the televisio n cameras, in p lenty of time fo r the eve ning ne ws. And I cou ldn' t h el p but get th e feeling that these wh o we re invited to test ify were 01 chestrated by Sta tler and hi s safe tycrat cronies. Statler 's star witness a ll see med to be selec ted on th e basis of prior appearances o n TV shows bl asting ATVs - was one john MeKinl ey, a q uadriplegic who recently wo n 52.6 mi llion from American H onda in a n Ohio lawsuit; McKin ley's la wyer' and h is la wyer's expert witness, an engi nee ri ng professor, were also invited to testify. The way Mc Ki nley ,to ld it, he was m i nd ing h is own busi ness rid ing do wn a slo pe when he lost co ntrol o f his H onda ATC I IO, cras hed a nd broke h is neck. Sta tler has said th at Mc Kin ley's case p roves that ATVs are in herently dangerous; th e Ohio j ury bo ugh t th e id ea that beca use r id er in p u t is requ ired to ride a n ATV, th e vehicle is defective. What the case really illust rates is wha t is wrong wi th th e cu rrent product liabili ty lawsu it sit ua tion. It seem s th at Mr. McKinley had been drinking - estimates ranged fro m 34 beers u p to 8·9 beer s - a nd riding w it h his drinki ng p al s withou t a ny safety eq ui p ment, bu t those facts didn 't co me ou t until Con gr essman Crai g produced a copy o f the transcr ip t of th e McKin ley tri al a nd introduced it into th e su bcom mi ttee's files. If McKin ley's la ws u it had been tr ied in T exas, h e would h a ve lost o n the basis of h is co ntri bu tory n egl igen ce in d rinking a n d r iding. If the ac cident had h a p pe n ed in California, h e co u ld h a ve been cited for opera ti ng a n OR V whil e intoxicated; if he had rolled hi s ca r in th e sa me wa y on a downhill road, h e co u ld ha ve been jailed for driving under th e in fl uence. An d Mc Kin ley 's cl aim that he was just riding do wn a slope was co ntradicted by Professor Sher wood B. Menkes, the paid " ex pert witness" who test ified a t th e Oh io tr ial that Mc Ki nley 's ' AT C wa s unsafe , As Menkes to ld it. McKinley crashed whe n he tr ied to turn u ph ill w hi le tra versin g th e slope, Men kes ' testimony i tself was interesti ng. He p resented d iagr a m s and . charts to ill ustra te h is co ntention that the ATC l lO is unsafe. H e talked about an ATV tu rni ng a nd cl imbin g a slope a nd to ld ho w th e ATV beca me unstabl e and turned over d ue to th e position o f th e rider center of gravi ty rela tive to th e vehicle center o f gravity, with th e r ide r sea ted in a n uprig h t pos it io n. As Menkes tells i t, a n ATCllO will ro ll o ver a t 10 mph if a turn of 15° is a ttem p ted. Menkes advoca ted a ban a nd recal l. T he ca tch is th at Menkes fails to account fo r ri der body p ositionin g. O n the front page o f Cycle News, May 29, 1985 we ra n a p hoto o f a motorcycle be ing ridden straight u p a rock face. T he bike was nearl y ver tica l in th e p hoto, a nd so was th e rider, his crotch a t a bo ut th e steering head . If th e rider hadn't positi oned h is body co rrectly o n the machi ne, h e co u ld n't ha ve negotia ted the rock face a nd would have crashe d . R ider input is j us t as importan t a nd cri tica l in ATV use, and th at 's n o t p roof tha t th e vehicle is unsaf e. Mckin ley's attorney, whose share of th e $2.6 m i lli on was proba bly over $ 1 mi llion, tes tified th at "These products are unsafe a nd shou ld be wi thd ra wn fro m the market. " It 's no ' wonder he feel s th a t wav : h e makes h is money tr ying to co nvi nce juries th at prod uc ts, suc h as ATVs, a re u nsafe; if the CPSC agrees w it h h im , th at makes h is job easier in fu tu re go ld-digging cases . T here were ot her en te rtai ni ng witnesses. O ne 15-year- old crasher (14 a t th e time o f his wreck) broke his back whe n h e d idn ' t ma ke it u p a 60° slope; h e was ri di ng witho ut ad u lt su pervisio n, with hi s frien ds a nd now seems to thi n k h e' s a n expert on AT V safety. H e advocated a wide ra nge of restric tions on machi ne power an d performa nce, even th o ugh h is crash of an ATC200 was not rela ted to top speed. T here we re the pare nts of a n 11year-o ld crasher who h it a tree after goi ng ou t of co ntrol o n a road, a llegedly for no rea son, a llegedly de spite orders to keep h is ATC II 0 in second gear, and h it a tree with enough force to severe ly dama ge h is pan cr ea s. T hey ad voca ted a ban a nd recall. (Whe n m y own son , a t age 7, lost half h is pancreas in a bicycle wrec k, nobody ca ll ed fo r a ban a n d recall o f bi cycles. Li fe is cur io us , . .) T he n the re was th e lady who sa id her husband sim p ly lo st co ntro l. a lo ne o n a straig h t sectio n of the road, agai n for n o rea son, hit a tre e while _ on a hunting trip, a nd died. She wanted a ban and recall , even though she saysnobody knows wh y her husband . crashe d . If he'd h it th e same tree in truck a n d di ed , one doubts she'd advoca te a truck recall. What about a nybody who m ight wa nt to testify a bo u t sa fe and sane AT V use, use n ot invol ving drinking, un superv ised children, a nd rnysterious straight-line losses of control? Ed P ratt of the 600-m ember Southern Ne w Engla nd ATV Assoc iation as ked five ti m es. to be a llowed to testif y; Congressman Barnard's a ide , j acobs, decl ined to a ll o w him to do so. P ratt and th e SNEAT VA ended u p pa yin g a Washington PR firm o ver SIOOOto arrange a bri ef p ress co nference w ith Congressma n Crai g o n the Capi tol la wn befor e th e hea n g sta rte d. Susan H albert of the Cooperative Ex tension Service o f the Un ive rs ity o f Alaska as ked to testify abou t h er experi ences with AT V safety p rograms a nd th eir effectivene ss in Alaska , th e a on ly sta te to com plete a n ep ide m iologi cal study of ATV accide n ts. She was turne d down by j a cobs. came to Washingt on a nyway a nd o n ly Congressman Craig's introduct ion o f h er p repa red sta tement into th e officia l rec or d o f th e mee tin g ens ured she go t a ny attention at a ll. T he medica l experts broug h t in to testify were Sta tler supporters; one told h im after test ifying, " I'm wi th yo u a ll th e wa y." T hey advoca ted a n immedi ate en d to AT V sa les . . St ua rt Sta tler exercised a pervasive inn uen ce i n a ll this, a n d th e dan gero us p art is th at th e man doesn 't let fac ts stand in th e wa y of good burea u cracy . Pin h im on o ne issu e a nd h e'll feint a n d cha nge hi s posit ion o r den y wha t the publ ic record says h e's sa id o r done. Presentati on o f a ny facts tha t d isp ro ve or d iscount h is co ntention's doesn ' t p hase h im a bit. H e'll ei ther ignore th em and maintain h is pos ition orelse grab o nto a nother bit of misi n fo rmat ion a nd charge o n back i nto th e fray, dem anding that AT V sa les be ha lt ed a nd characterizin g man u facturer s as im mora l a nd ca llous at the sa me time. Sta tler damns ATVs witho u t rega rd for facts a nd ig nores C PSC engineeri ng staff reports th at co ntrad ic t h is posi tion; he ignores m ail opposing h is vie w; h e' s a gra ndsta n de r and is more interes ted in television ti me th an tru th . The man has go t to be n eutra lized . o ne way o r a no the r; a good pl ace to start is wit h yo ur co ngressma n - or co ngresswo ma n; a good way to sta n is to as k yo ur co ngressman o r co ngresswoman wh y Statler is a llowed to o pera te th e way h e d oes, why he gets to serve as p ro secutor , j udge a nd jury; wh y h e is free to m islead a nd m isr epresent the truth , all the whi le doin g so in the nam e o f the U.S . Go vernmen t. T he th ing I ca n't under stand is w hv Statler a nd the C PSC are a llowed to ~end o u t press re leases (he ca lls th em inform at io n bulletins) a nd a ppear o n televisio n co ndem n ing ATVs, ca ll ing man ufacturers immoral. a nd ca ll in g for a ba n a nd reca ll whe n th e C PSC says it doesn' t ha ve enough evidenc e to make a reca ll sta nd up in co un, . Stat ler was as ked th a t question hi mself by Co ngressman Barna rd , a nd ad mi tted that there isn' t enough evi de nce to fig h t a co un cha lle nge, sho u ld o ne be fil ed , to a CPSC reca ll a nd ban. But Sta tler in si sted th at it was co rrect a nd p roper for him to co ntin ua lly a p pear in the general media demanding a recall a n d ban a nyway. What Statler is doing is o bvious, He 's avoi d ing due p ro cess and circumvent ing the law. Th e CPSC doesn 't h ave the facts to back up a recall. The CPSC ca n't win a co urt challengedto a recall. So Statler is try ing the ATV in th e press, presenting selecrive, misleading information in an effo r t to co n vince the American public th at ATVs a re unsafe no matter what th e fac ts. What we need no w is a bill intro duced in co n g ress tha t specif ically prohibi ts a n employee or a Commissio ner o f a ny Fed er al Regula tory Agency from m aking a ny public comment o r sta tement to th e effect tha t a recall a nd ban of a product is warra nted unless th e agency itself has officia lly, through designa ted and proper procedures in corporating due process, enacted a recall a nd ban through mandat ory regulation, What we n eed n o w is for Congress to ge t Stuart Sta tle r a nd th e Consu mer Product Safe ty Comm iss io n back under co ntro l. It ha s to sta rt wi th a congressman o r co ngress woman; it rna y as we ll be yo urs; ca ll or write him o r h er today a n d ask th at they do just that. •

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