Passenger cars, trucks, vans, motor cycles and a vast array of transportation devices have all become a major part of our lives – particularly in the United States. As products, those devices have made fortunes for the manufacturers, the makers of parts and the constructors of roadways. Thousands upon thousands of people have been employed to engineer these devices and these engineers earn a good living.
In the US, we built highways, bridges, tunnels and elaborate interstate systems to accommodate motorized vehicles – at enormous public cost. While the car was liberating – giving freedom of movement never previously experienced by the species – it was also dangerous. In the 1950s and 1960s, tens of thousands of Americans were dying annually in automobile crashes, many more were seriously injured. A fair chunk of those deaths and injuries were preventable by a better vehicle design. Spurred by Ralph Nader’s book, “Unsafe at Any Speed”, Congress passed the National Highway Traffic Safety Act in 1965 to address the problem of defective design.
In a paean to automotive engineers published in the New Yorker magazine issue dated May 4, 2015, staff writer Malcolm Gladwell would have us believe that it is so difficult to identify what is and what is not a defective automotive design, that the engineers that design these ubiquitous rolling torpedoes need a break in public opinion. Mr. Gladwell’s essay is a virtual encapsulation of all the defenses posed by the manufacturers in tort cases that have so often been rejected by juries. Those defenses are specious – particularly as articulated in this New Yorker article.
The statute addressed the issue of automotive design by authorizing NHTSA to establish safety standards for the design of cars and in some cases trucks. The Federal Motor Vehicle Safety Standards were, unfortunately, made self-enforcing. A manufacturer was, for each relevant design change, required to do the tests unsupervised and then to certify the vehicle complied with the applicable standards. Of the most critical and most clearly set out was FMVSS 301 – the fuel system integrity standard.
FMVSS 301 required, among other things, that in a full rear end collision the fuel tank leak, if it leaks at all, no more than one ounce per minute. Ford crash tests of the 1973 Pinto revealed that its fuel tank did not always meet that standard. Four years before the 1973 effective date of FMVSS 301, Fairchild-Hiller issued its final report to the US Department of Transportation, National Highway Traffic Administration (NHTSA) on fuel system design. That report concluded, among other very obvious things, that the best way to design a safe fuel system is to place the gas tank as near the center of the vehicle as possible.
The Gladwell piece uses the Pinto fire cases as a claimed “template” for what followed in auto safety recalls. His subject engineer – the “lamenting” one – is Denny Gioia, a retired engineer from the Ford Motor Company recall office. As he describes it, the “lament” of Gioia was that he needed always to find a pattern of failure and to have a “traceable cause” before he could suggest to his superiors that there may be a defect in the subject car.
Other than Mr. Gladwell’s obvious shortage of knowledge about American automobile defect litigation, there are a couple of things about his set up of Gioia’s job problem that are just silly. The Pinto’s fuel tank location was a design feature that violated all then known safety standards – a fact that was known to the engineers that did the design. A rear-located “drop tank” was an assembly-line expediency. It was more difficult to design a safe tank and slowed down production.
The culpable error occurred before the car was actually made. It failed crash tests that were required by the law. The first thing that Gioia should have done when he got the pictures and the report from the field engineers is to call for the tests records. That would have told him immediately that the vehicle should be recalled. On any level, it is bad engineering not to do that and once that is done and the higher ups don’t recall the vehicle, then criminal liability ought to attach – but at least the vehicles should be recalled.
No violation of obvious unsafe design should require a particular effort of an engineer in a company recall office. It shouldn’t get there. If a case or two do come to the attention of an engineer from the recall office, there should be no lamenting. As nice a guy as Denny Gioia may be, his angst should have been irrelevant. Fuel tank design issues were just too clearly defined and way too dangerous to risk failure.
One of the fundamental errors that Gladwell makes in his essay is to suggest that because every small car manufactured in the early 1970s had a rear mounted drop tank, then the Pinto couldn’t be defective. The error is serious because it relieves the individual engineer of the responsibility of doing a safe design – he need only do what other manufacturers have done. Cross-company conformity is a not a measure or definition of unsafe design. In this instance, every small car by any maker is defective if its fuel tank is in the rear of the car with insufficient protection from puncture in a foreseeable collision.
Another fundamental error that Gladwell makes is the failure to deal with the industry’s most deadly design defect and the role that engineers played in designing it, continuing it and defending it – the General Motors pickups of model years 1973 through 1994. As of the time of my retirement in 2005, the death toll attributed to post collision fuel-fed fires in GM light trucks exceeded twelve hundred, with multiples of that number in serious injuries.
While GM certainly engaged in ethically challenging conduct regarding reporting the post-manufacture record of these light trucks, the clear culpability of the engineer occurred at its initial design. The chief engineer assigned to design the new truck for GM in 1972 was a guy named Earl Stepp.
In about 1978 or 1979, Stepp gave a deposition in a tort case of a Florida woman seriously burned in a post collision fuel-fire involving a GM light truck. The case resulted in a significant plaintiff verdict. Little or no discovery had been done by the plaintiff’s lawyer, but Mr. Stepp made that pretty much unnecessary. When asked why he designed the fuel system so that the tanks were outside the frame rail, protected only by the thin metal of the skin, Stepp responded candidly: ‘ Marketing. Marketing wanted more fuel on board, at least twenty gallons.’
For the better part of my twenty years of involvement with this defect, GM insisted that the design passed FMVSS 301 crash tests. In the final analysis, that was exposed as false. What happened was that initial testing of the design passed a test. Then, that test was relied on to certify the design in each successive model year. When a test did result in a failure, the company certified based on the earlier successful test. Earl Stepp’s initial bad design was made worse by GM’s proving ground engineers and, in particular, engineers assigned to post manufacture assessment.
The point here is that many a commentator, the Secretary of Transportation, Federico Pena, and, by inference, juries were unpersuaded by the difficult choices required of an automotive engineer in placing the fuel tank on GM’s light trucks.
The entire empathetic thesis of Gladwell simply doesn’t hold water on any level. Clearly, an engineer is charged with responsibility of dealing with the environment in which his device will operate. Quite aside from the legal and regulatory environment in which a car must operate, there is the reality of American roads. As an example, Gladwell repeats the often repeated fact that speed is the cause for most American traffic deaths. But those speeds are almost always at levels that are far below the vehicle’s capabilities. Automobile engineers design a car that can go 130mph, but that car cannot withstand a collision at that speed and a collision at that speed will most certainly kill its occupants. Speed not only kills, it sells.
Ford’s and Chrysler’s former president, Lee Iacocca, famously was quoted as declaring that “Safety doesn’t sell”. No engineer employed by any car company was, at that time, credibly charged with designing a safe car. It wasn’t, in the ‘70s and ‘80s, a primary duty of an engineer to consider safety and the design of the Pinto and its peers and the design of the General Motors light trucks demonstrate the point.
The entire complex of design, manufacture, sales and regulation is a labyrinth of hypocrisy and Gladwell’s essay casts the whole bundle into a cold fog. An example is the lobbying activities of car companies trying to hold down the impact speeds for safety standard testing. The whole time that effort is going on, virtually every product of American auto makers is designed to go much faster than safety standard required impact speeds. The rank and file engineer cannot be concerned about safety because his employer isn’t. Unless, of course, that employer gets sued.
Tort liability in most states imposes a more exacting and realistic burden on engineers than the regulatory scheme of NHTSA. Broadly stated, the tort rule is that the regulations are not the limit of the car maker’s responsibility. The engineer cannot take the stand in a design defect case and claim moral or legal immunity simply because he complied with Federal Motor Vehicle Safety Standards. If the harm your design does outweighs the value of doing it another way, you (your employer, actually) are liable under design defect liability laws of nearly all states.
It seems fundamental that any engineer is charged with an awareness of the consequences of his work. Thus, if an ignition system is susceptible of disconnecting such vital functions as power steering, airbag ignition or power assisted braking, then it becomes real important for the engineer’s design to avoid such disconnection. Alternatives were clearly available on the day the faulty design appeared in a schematic, so there really is no lamentable choice issue. The potential consequences of a disconnected ignition switch far outweigh the cost or difficulty of a safer design – as conclusively proven when General Motors came up with a different and better design using the same part number. The recall office should not be the place where the defect is caught – it is also obvious that it wasn’t.
This brings me to the allegory that Gladwell is so apparently fond of in his article. A golfing foursome that includes an engineer is following a foursome consisting of four blind fire fighters who are understandably slow to play. The firemen were blinded in fighting a fire at the golf club and have been rewarded with free play by the club. The frustrated foursome that includes the engineer all have views of how to speed up play, only the engineer asks why the firemen don’t play at night. This, Gladwell insists, allegorically explains the severe logic of the engineer in solving a problem. I think it illustrates quite the opposite.
The golfing engineer has ignored the reality of blind golfers – not that they can’t enjoy the activity, but that they need a sighted companion to help them do it. Nothing about a night round would aid the blind players and the generosity of the club would be lost if that were the requirement. The golfing engineer, with his pithy suggestion, has failed to understand the consequences of what he proposes.
To assert, as Malcolm Gladwell has in this piece, that automobile engineers are being bum rapped by blame for dangerous vehicle designs, is darkly humorous in light of a memorandum written by a GM engineer named Edward Ivey in June of 1973. Ivey was a member of the advance design team at the Oldsmobile, at the time assigned as the lead division in GM on fuel system integrity. The report provided a financial rationale for not recalling vehicles with defective fuel systems by comparing the average cost to the Company of resulting deaths to the cost of recall and redesign. In hundreds of plaintiff law offices around the country this was dubbed the “let ‘em burn letter.” Ivey, like Gioia, is likely a nice man engaged in a job that sells products that are more dangerous than they should be. They are not, however, blameless.
Gladwell’s article may be found here: http://www.newyorker.com/magazine/2015/05/04