CAS Recall Request to NHTSA Administrator Runge

August 11, 2002

Dr. Jeffrey Runge, Administrator National Highway Traffic Safety Administration (NHTSA) 400 7th Street SW Washington DC 20590

Dear Dr. Runge:

NHTSA's investigation (EA01-015) of the 1994 through the early 1995 Nissan Altima contains documented crash reports and medical records showing at least 75 cases of face and eye injuries from deploying passenger airbags. At least 33 of these are eye injuries. More injuries have occurred since then. The latest known case occurred in Washington DC on April 28, 2002 in which a 1994 Altima passenger was permanently blinded in both eyes. NHTSA required 11 other manufacturers to provide crash reports on 15 similar models. The Altima has an incidence rate of face and eye injury that is 20 times higher than the other models surveyed.

In a desperate effort to avoid an eye saving recall, Nissan has reverted to a tactic repeatedly rejected by Federal District Courts the use of particular data bases without any showing of substantial similarity between incidences in the data bases.1 In a December 21, 2001 letter to NHTSA, Nissan uses unsubstantiated data from New York State to suggest other models have "higher percentage of eye or face injuries than did the 1994 Altima." What Nissan did not do and cannot do is claim there is a single eye injury due to a deploying airbag in a competitor's vehicle in the NY data base because it did not examine the records of a single crash or inspect a single vehicle from other models. For all anyone knows, the 8 eye injuries in the NY data base (derived from Attachment IIJ in Nissan's December 21 letter) could be caused by sun visors or other interior protrusions striking the passenger.

Nissan didn't even submit a sample of the New York crash report form. We examined one (Attachment C from NHTSA's State Crash Report Forms Catalog, HS 808 854) and found the probable reason. The form is complicated and demands an exceptional level of injury data completeness and accuracy to support any underlying summary tables produced using the NY crash data base.

New York has two major accident forms. One is "Police Accident Report MV-104A" and the other is "Police Accident Report NYC MV-104AN". There are special supplemental forms for trucks and for fatal crashes. These forms have a relatively complicated matrix (e.g., on the bottom of page 196) that requires about a dozen variables be completed for each person involved in the crash. None of the boxes have names (just reference numbers), requiring the police officer to refer back and forth between the matrix and the instruction page, a tedious process prone to error.

The instructions on page 201, Section 14 of the matrix specifies "location of most severe physical complaint" (with 12 choices) and Section 15 specifies "type of physical complaint" (with 13 choices). That page is referenced to MV-104AN (the NYC crash form) so it may only apply to the NYC form, or there might be another version that is used for the whole state that was not included in this book, it is not clear. In either case, this is a level of detail that busy police officers may find difficult to complete at a crash scene.

In addition, using the category of "Face" as a location of an injury separate from "Eye" is confusing, since Facial injuries typically include eye injuries. For example, the AIS injury system, which is the most widely used anatomic injury scaling system in the world, includes eye injuries under the Face chapter. The fact that Nissan apparently uncovered only 8 reports of eye injury in the NY data base suggests some of the face injuries are eye injuries and the data base is inaccurate for that reason alone. Furthermore, the total number of incidents is far too small to be statistically significant.

In a July 11, 2002 information request, NHTSA has required Nissan to produce "Copies of the specific crash report cases extracted (approximately 60 cases) for the MY 1994 Altima that stated face/eye injury to the occupant." NHTSA should require Nissan to produce copies of the crash report cases (forms) for all other cases underlying Attachment IIJ, "New York state data," in Nissan's December 21, 2001 submission so that one can determine any similarity between all the face and eye injury crashes in the data base.2 NHTSA has also not asked Nissan to produce detailed records and reports for the crashes causing eye and face injury in the UMTRI data base. The agency should do so.

One cannot rely on analyses of crash data bases to determine whether there has been an eye or a face injury due to a deploying airbag. The only way that can be done is to examine the actual police reports and medical records for each crash plus whatever additional information may be available from crash investigation and litigation files. NHTSA has thousands of pages of such records in its investigatory file that support a finding that the 1994 to early 1995 Altima's passenger airbag has a safety related defect.3

Nissan claims there are so many reported cases of blindness in early Altima's because one lawyer has filed so many cases. Blindness, like burn injury, is so unique and horrific that if there were any models with similarly defective airbags causing blindness, other lawyers would sue those manufacturers too. The fact that other manufacturers do not have any where near the number of lawsuits over airbag eye injury is due to the fact that other manufacturers have better designed airbags that do not cause blindness. Nissan's over litigious lawyer theory also falls on its face because the lawyer has not filed any lawsuits on Altima's made after March 3, 1995 which have designed changes that have been so effective that there have been no reported permanent eye injuries in those model even though there are nearly four times as many of these vehicles on the road as there are early 1994-95 Altima's. If there is no defect and injury, there are no lawsuits.

The investigation has gone on long enough. The evidence is compelling. The 1994 through early 1995 Altima's are defective and must be recalled before they blind more victims.

Sincerely

Clarence M. Ditlow Executive Director



1 Attachment A contains Orders precluding the use of statistical data bases in defect cases without an examination of the underlying cases in the data bases and a showing of substantial similarity between them from Federal District Courts in Georgia (Heath v. Suzuki), Oklahoma (Bishop v. General Motors) and Washington (Kenneally v. Suzuki). NHTSA takes a similar position that statistical crash data bases are generally unreliable in identifying defects. See Attachment B, NHTSA's Enforcement Litigation Memo prepared under former Chief Counsel Frank Berndt who established the per se theory of defects to get around the limitations in data bases.

2 Nissan met with NHTSA on June 28, 2002 to discuss this data base but there are no records in the public file to shed any light on Nissan's arguments and presentations. CAS has been forced to file a Freedom of Information Act (FOIA) request to find out what went out behind closed doors. NHTSA should not wait to act on the FOIA request to place all records from the meeting in the public file.

3 NHTSA has withheld 4 boxes of Nissan documents from the public file. Although Nissan claims confidentiality for some of these documents, most have been withheld from the public record for no apparent reason. Again, CAS has been forced to file a FOIA request for these records. NHTSA should not wait to act on the FOIA request to place all non-confidential Nissan records in the public file. CAS notes withholding investigatory records from the public file is a new policy which contradicts long standing NHTSA policy of making all investigatory files publicly available except where the manufacturer submits a legitimate claim of confidentiality.