Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

Analysis: making sense of the law based on these facts.

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge


Garmin: You don’t know what you are talking about, you are just a consumer! Jim: For the third time in 3 years I find out I was right. Garmin: no, we are not wrong therefore you are not right.

Garmin updates are messing up their products. When that happens, their tech support says it is your fault or if out of warranty, broke. No specific instance of buy another one, but what else can you do?

Below is the latest email message trail with Garmin Tech Support. The problem started when my Garmin Edge 1000 could not be found by my computer. Information was downloading by Wi-Fi but I could not get my Garmin to work.

In the process of working on my Edge 1000 to get it to work again, I did two factory resets. I did a boot block. Each time you have to sit down with your Garmin and re-enter all the information and hook up all your sensors, etc. I have four different bikes I use my Garmin with.

I took my Edge 1000 to 2018 Summer @OutdoorRetailer and had the people at the Garmin booth try and get my Edge 1000 to work. No luck.

As you can see from the last email, Garmin Tech Support determined that the pins on my Edge 1000 were busted and my Garmin was sort of dead.

I went for a ride 2 days ago and to recharge the battery hooked it up to my computer again. While looking for a file on my computer I noticed my Garmin Edge 1000 was there, another drive.

I clicked on Garmin Express, the software that links to your Garmin product so you can sync, upload or download info. My Edge 1000 was there and it synched.

Here is the email conversation with Garmin

Hi Jim,

The port on the back of the Edge should have four pins, two for power and two for data. Most likely the data pins are damaged. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).

US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.

Thank you for choosing Garmin,

>> Sent: 24/07/2018 08:12

I appreciate the offer but my edge is way too old and has been replaced once already.

What I find confusing is it can be charged. It just can’t be found? That is a connection issue?

Slow to respond because I’m at the outdoor retailer tradeshow. I’ll see the Garmin sales team today.

More later.

THANKS

Jim

From: Product.Support@garmin.com <Product.Support@garmin.com>

Hello Jim,

>> I am sorry about the issues you are having today. I would be happy to work with you towards a resolution today. It seems like the port on the back of the device is damaged. Does the port on the back of the device look damaged or corroded? We suggest cleaning it out with something like canned air if you haven’t yet. If this doesn’t resolve your issue your device may need to be exchanged.

•    What is the serial number for your Edge? It is located on the back, underneath the weather cap.

•    How long have you had the device?

o    For more information about our warranty policies, please visit: https://www.garmin.com/en-US/legal/consumer-limited-warranty

Once we have the above information we will be able to provide further support. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).

>> US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.

Thank you for choosing Garmin,

>> Original Message …

>> >> From: jhmoss@gmail.com

>> >> To: Product.Support@garmin.com

Three computers do not recognize my edge 1000. All have Garmin Express. All know I have an Edge 1000 and ate least one other product. None of them can find my edge 1000. I have tried different USB cables, I have tried using USB hubs and plugging directly into a computer USB port. I have rebooted the computer. the Edge 1000 was just factor reset also and it is still not recognized. It is currently plugged into the original computer I have used for the past 3 years to recognize it and it is “searching.” I let it search for 24 hours. Unplug, go for a ride and plug back in.

I also cannot set up the WIFI in the Edge 1000 because of this.

Jim Moss

On Tue, Mar 24, 2015 at 11:31 PM, James H. (Jim) Moss <jhmoss@gmail.com> wrote:

Did a full factory reset and it still is not being found.

Tried my third cable. Still not being found.

Restarted my computer, still not found.

By the way, I rarely use Garmin for anything Map my Rides and Ride with GPS and they still cannot find the Edge 1000 or my Fenix 2. Nor is windows explorer finding them.

I’m also getting error messages that the communicator plug in is not working.

I have tried switching to different USB ports, 3.0 and 2.0 working from hubs or directly to the computer and still nothing. I just started getting Unknown USB Device messages when I just switched USB ports again.

Garmin Connect did find my Garmin Memory card just now. Memory Card (f:\) however Windows Explorer is not showing an F drive.

Both the Fenix 2 and the Edge 1000 are charging. The Edge 1000 keeps searching for satellites no matter what I do. Garmin Express can’t find anything

Jim

From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]

Dear Jim Moss,

Thank you for contacting Garmin International.

I am sorry to hear that you are still having issues with your Edge 1000. I would be happy to assist you with this.

Have you tried restarting your computer? If that does not work we may need to master reset the device,

There are a few instances in which it may be necessary to perform a master reset on the Edge. A master reset should be performed if the device is:

•    Not functioning properly

•    Needing to be restored to factory default settings

•    Not receiving a satellite signal

•    To bring up the language selection prompt if incorrect language text is displayed

•    Unable to pair accessories2, such as a heart rate monitor or speed/cadence sensor

All settings, workouts and satellite data may be erased when resetting the GPS. Workouts can be backed up in Garmin Connect. If you wish to keep your personalized settings, you will need to backup your device.

To perform a master reset:

1.    Power device off

2.    Press and hold Lap and Start/Stop

3.    Power device on while still holding both buttons

4.    Continue holding buttons when the Garmin “splash” screen appears

5.    Release buttons when Garmin “splash” screen disappears

The reset is successful if, once powered up, the device proceeds into the initial setup wizard. Once the reset and setup wizard are complete, place the device outside with a clear view of the sky for a minimum of 20 minutes to acquire satellite data.

If you have additional questions or concerns, please respond to this email or feel free to call us.

We are available Monday-Thursday 8:00am-6pm CST and Friday 8:00am-5:00pmCST. Closed holidays.

Garmin Product Support (800)800-1020

>> Original Message …

>> >> >> From: jhmoss@gmail.com

>> >> >> To: Product.Support@garmin.com

Did not change anything. Garmin Express can’t find the Edge 1000 nor can the computer.

From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]

>> >> >> Sent: Tuesday, March 24, 2015 11:31 AM

>> >> >> To: jhmoss@gmail.com

I’m learning. If I start a ride and none of my sensors are connected then I know that my Edge has been updated by Garmin. I have to start playing around, eventually stopping the ride to re-connect the sensors. I have a dozen hour long rides that recorded 7 minutes of riding and jumps on my bike for miles until I finally got tired of trying to reconnect the sensors. I give up and work on them when I get home.

Update 1

I had not used my Edge 1000 for over a month. It was connected to my computer with the same USB cable I had used for the past year. One day I looked at it and realized it had connected again. I opened Garmin Express and voila it was there!

So, with no input on my part it is now working again.

Update 2

I tweeted about these issues before I wrote this article. I received the following from Garmin


More

Replying to @RecreationLaw

Hi Jim, I’d be happy to review your situation. Please send us a DM with the details as well as the email address you used when contacting support. -MR

  1. Jim, Thank you for the information and your patience with us over the extended Holiday weekend. Just to clarify, the Product Support associate was offering a possible cause for the issue you described. You claimed that a software update resolved your issue. However, the most recent update for the Edge 1000 was released in mid-March. I’ve looked over the software change history for the Edge 1000, but I see nothing mentioning any fix to connectivity issues. The updates included in 14.70, released mid-March as I mentioned, were: •Added Connect IQ 2.4.2 support. •Fixed an issue that could cause the device to crash when syncing segments. •Fixed an issue with the backlight not turning on consistently. •Fixed an issue with the user’s FTP resetting after changing the power zone configuration. I can understand your frustration and that you’re dissatisfied. Our associates have been assisting you as best they can with the information they have. Your device was believed to be up-to-date because you had been in contact with us multiple times since the software released in March, you were having issues with connectivity, and we currently have no open tickets that I can find regarding that type of issue on the Edge 1000. The suggestion that the data pins might have been damaged, dirty, or corroded was not an attempt at passing the buck, but rather a way for us to determine the cause of the issue you were experiencing. It sounds like updating the device resolved the issue for you, though looking at the change log, I don’t see how/why that would have worked or why an update would have presented itself if you’d already updated the product since the last release in March. Nevertheless, I’m glad to hear that things are running smoothly again. Thank you, -XXXX

    Sep 4

  2. The device was plugged in to a USB port since bringing it back from OR so nothing changed for a couple of weeks. I’ll correct my statements based on this, but honestly, based on my history with Garmin, I don’t buy it. https://recreation-law.com/2018/04/04/i-took-my-garmin-vivosport-off-in-fact-im-done-with-it/ 
    https://recreation-law.com/2018/02/28/i-love-garmin-products-i-hate-garmin/ 

    So, what is up? Could it be fate (not love just something out of my control.) or are map updates enough to mess with my Edge 1000. Or am I off my rocker and just wrong about everything?

    The reason why I’m guessing that even a map update, which seems to occur daily, can affect the rest of the Edge 1000 is because my sensors go offline, all of them more times a year than Garmin says they update the Edge 1000

    I don’t know. I and felt obligated to provide Garmin’s side of the story. However, part of me does not buy it.

    I’ll be at Interibke next week, I’ll see if any tech’s there have an opinion.

    What do you think? Leave a comment.

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    By Recreation Law    Rec-law@recreation-law.com    James H. Moss

    #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,


California Proposition 65 is a nightmare for manufacturers and as usual, manufacturer bad dreams are felt by retailers.

This Article Has Updated Information For Manufacturers!

This article is a repeat with a few updates. This law is going into effect in less than three (3) months and will affect EVERY manufacturer selling in California or ONLINE!

Proposition 65 was passed by the voters in California in the late 80’s. The proposition required consumers to be notified if a product might contain a chemical that was carcinogenic or might cause harm to a fetus. The proposition required a simple warning label on any product that contained a chemical list maintained by the state.

The proposition was general ignored for the first 20 years as the state gradually added chemicals to the list. However, as the testing and research got better the list of chemicals started to grow exponentially. Now that list has 967 chemicals.

The list of chemicals on the list can be found here: Chemicals or Listed under Proposition 65. You can download a list of the chemicals here. There are currently 967 chemicals on the list and the list adds new chemicals yearly, sometimes more often.

The state recently determined that the consumer was not being adequately warned, and the warning did not provide enough information to the consumer. The regulations from Proposition 65 were changed, and the new regulations go into effect for all products sold after August 31, 2018. New warning label must be placed on products, in the catalog, on the website and maybe on an aisle of your store, for all products manufactured and for sale to the California consumer after August 31, 2018. That new warning is specific in what it must contain and must include the name of one of the chemicals on the list that can be found in the product.

Manufacturers can no longer place the general warning on everything, even if they did not know what the possible danger was.

The state also decided the enforcement of the warning needed to be kicked into a higher gear. With the new regulations, came a new way to enforce the law. Any consumer can act on behalf of the State of California and file a suit against any manufacturer who has not met the new regulations. Damages can be up to $2500 per day per product, court costs and attorney’s fees. The consumer who files the lawsuit will receive one-third of the money recovered.

This has created a new rush for law firms with an associate in or based in California. Consumers are being retained to buy products, have them tested to prepare to sue manufacturers. One consumer already purchased sixty products in one day from Backcountry.com and sent them for testing.

Consequently, this has created a mad rush for manufacturers to determine what is in their products and what labels must be added to their products.

If a manufacturer has a product that contains a chemical on the list the label must be on the product, hangtag, packaging so the consumer can identify it before purchase. The first warning below is for chemicals that are carcinogenic.

WARNING

This product contains the following: Chemical 1

This product can expose you to chemicals including Chemical 1 which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.

If the chemical is on the list because it may injure a fetus the warning must look like this.
WARNING
This product contains the following: Chemical 1
This product can expose you to chemicals including Chemical 1 which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.gov.
If your product contains chemicals that are on both lists, meaning the chemical can cause cancer or injury to a fetus, that warning must look like this.
WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to http://www.P65Warnings.ca.govwww.P65Warnings.ca.gov.
This is a different warning if you place the warning directly on the product. If the warning contains both a carcinogen and a toxicant, the safe harbor warning will look like this.
WARNING: Cancer and Reproductive Harm – http://www.P65Warnings.ca.gov
These warning have a minimum type size or 6pt or nor smaller than the largest type size used for other consumer information on the product.

Current Manufacturer Issues

First, manufacturers are being contacted already about failing to meet the requirements of the current regulations. The law firms contacting the manufacturers are demanding large amounts of money.

No money is owed under the current regulations if a manufacturer fails to meet the requirements under the law, generally.

However, that has not stopped law firms from sending demand letters. Be aware of this issues and deals with them accordingly.

Supposedly, 60 products have been purchased at one non-California online retailer and based on testing; demand letters have been sent to manufacturers.

A second issue is California courts have said the standard language in commercial liability polices, the insurance policies you buy to protect against lawsuits DO NOT apply to California 65 claims. There are two reasons for this.

First, most policies only protect against claims based on negligence. There is no negligence in this matter, there is a violation of the regulation, so your insurance company and the courts are going to say that they have no duty to defend you.

Second, most policies have a specific exclusion for fines, fees or regulatory penalties. Although this penalty is being collected by private individuals and law firms, it is being done under the auspices of the California Attorney General’s office. As such, most policies are going to deny coverage for this reason also.

Finally, get your manufactures of the components or products you make on board now! Make sure they have supplied you with SDS (formerly MSDS) sheets that identify what is in the products you use to make your final product. If a component does not violate California Proposition, 65 regulations get that confirmed with the manufacturer and determine how claims are going to be dealt with if a demand comes in.

Monetary Claims are being made for products where the claimed components that violate the law have SDS sheets stating that the product does not violate California Proposition 65.

If your products are not made from US or UK manufactures who supply SDS sheets, then find out what is in your products immediately. If your manufacturer will not or cannot supply you with the information, you need you will probably have to hire a lab to test your products to determine what issues you face.

When working with an independent lab, determine in advance how any claims between you and third parties will be handled based upon the labs’ results if possible.

Where a retailer has to pay attention.

The retailer headache comes in three different forms. The first is a retailer who sells their own branded products. If you name is on the product, you are probably the manufacturer under California law unless it is clear the product was manufactured by a third party. Your hangtags with your bar code and price are not creating liability because the manufacture’s name is on everything else. However, a T-shirt with the name of your store name across the front probably makes you a manufacturer unless the packaging clearly identifies the true manufacturer of the shirt. Laying products out to be purchased without a warning label is possibly a thing of the past, unless you place a warning on the aisle or shelf where the product is displayed.

If you sell or probably give away anything advertising your store that based on the way, the product is identified, would lead a consumer to believe that you are the manufacturer you need to have the new warning labels on those products. However, the giveaways are a gray area because the regulations use the terms for sale to the public….

If you advertise the products, you sell on your own website, any product on your website that needs a label must have that warning on the website. So even though you are just the retailer, the consumer must be able to see the warning on your site (or if you still use one, your catalog). The warning must be visible to the consumer before purchase.

Retailers selling consumer products over the Internet must pay special attention to their new obligations under the updated rules. A compliant product label will no longer be sufficient to qualify the Internet seller for the safe harbor protection even if the label complies with the updated warning content requirements of the new regulation. For Internet sales, retailers must provide a Prop 65 warning for the product on the retailer’s website to fall within the safe harbor. Such website warnings must either:

  1. Be placed on the product’s display page,
  2. Be given via a hyperlink using the word “WARNING” placed on the product display page, or
  3. Be displayed, with a tie to the product for which the warning is being given, to the consumer before their purchase is completed (such as having the warning appear in the virtual shopping cart or on the last page before the consumer authorizes the use of their credit card during the checkout process).

The new rules will therefore, likely require many retailers to alter the coding of their websites and may force website redesigns.

https://www.mofo.com/resources/publications/170801-new-proposition-65-warning-regulations.html

The biggest burden that could be placed on a retailer is a manufacturer may opt to place signs in the aisles where their products are being sold. Then the burden shifts to the retailer to make sure the signs are up and visible to the consumer.

The actual requirements that create liability for retailers have a few additional ways to create liability; however, for the ski and snowboard retailer, those are unlikely.

The new regulations will relieve retailers from the responsibility of providing a Prop 65 warning if certain criteria are met. Retailers have often been caught up in the broad scope of Prop 65, which, until now, said little about who exactly needs to provide the warning. Retailers will no longer have to provide the warning unless:

  1. The retailer is selling the product under a brand or trademark that is owned or licensed by the retailer or an affiliated entity;
  2. the retailer has knowingly introduced a listed chemical into the product, or knowingly caused a listed chemical to be created in the product;
  3. The retailer has covered, obscured or altered a warning label that has been affixed to the product;
  4. The retailer has received a notice and warning materials from the manufacturer, producer, packager, importer, supplier, or distributor and the retailer has sold the product without conspicuously posting or displaying the warning; or
  5. The retail seller has actual knowledge of a potential consumer product exposure requiring a warning and there is no manufacturer, producer, packager, importer, supplier or distributor
    who:
    1. Meets the definition of a “person in the course of doing business,” and,
    2. Has a designated agent for service of process in California or has a place of business in California.

https://www.troutman.com/are-you-ready-for-the-new-california-prop-65-warning-requirements-05-22-2017/

Retailers are not totally exempted even if they do not have any of the above challenges. Manufacturer’s may attempt to pass the liability onto Retailers, which I would strongly advise against. Retailers are responsible for posting signs if required by the manufacturer and notifying the manufacturer that they have received the material to post.

The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning and provides warning signs or other warning materials to the Retailer. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before he or she is exposed to a Proposition 65 chemicals.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

https://www.p65warnings.ca.gov/new-proposition-65-warnings

You are not out of the woods yet. Again, though, other than chemicals that might be on the list for waxing or repairing skis and snowboards, these probably might not apply.

A retailer can still be held responsible for failure to provide a required warning for the retailer’s private label products or where the retailer has:

  • Knowingly introduced or caused a listed chemical to be created in a product;
  • Covered, obscured or altered a product’s warning label;
  • Received a warning notice and materials from the manufacturer or supplier, but sold the product without supplying the warning; or
  • Actual knowledge of the potential consumer exposure requiring the warning, and there is no manufacturer or supplier who is subject to Prop. 65 (has 10 or more employees) and a place of business in California or a designated agent for service of process in California. Actual knowledge will be presumed within five days of receiving a 60-day notice of violation.

https://www.bryancave.com/en/thought-leadership/california-adopts-new-prop-65-warning-regulations.html

The last one, knowing of a problem is where the ski and snowboard retailer may be in trouble.

What if you suspect a manufacturer of product in your store has not properly labeled their products. Several apparel manufacturers are taking the position that the odds of them getting caught are so slim that they can take the risk. As a retailer, you will quickly know based upon the products you carry if they are labeled properly; that waterproof jackets or certain greases should carry a label. Supplier XYZ is not labeling their products are you liable.

The law is unclear and untested, except for one area. A California Court has already determined that the language of standard general liability insurance policies that protect against claims of negligence, do not apply to these types of lawsuits because they are based on violating a government regulation. So, any battle you might fight, you may be doing out of your own pocket.

What should you do?

Request a letter from your vendors stating that the products sold in your store have been reviewed, and the manufacturer has properly labeled the products that require labeling.

Ask vendors you work with to indemnify you for California Proposition 65 violations. The larger retailers you compete with are already requiring that.

Contact your insurance agent and see if your policy covers proposition 65 suits and if so, get that in writing.

 You can download a copy of this article here! California Proposition 65


I took my Garmin Vivosport off. In fact, I’m done with it.

Yes, the Garmin Vivosport can still record information, and if you recharge on a computer, you can sync the information. However, that is not what a fitness tracker is made for.

As it sits back on my desk, my Vivosport is a brick. A $200 brick actually a $169.99 brick if you go to the Garmin Vivosport website. I rounded up……

I flew to a different time zone. I landed and missed my first meetings because I did not realize my Vivosport did not automatically update. I did make happy hour!

I spent 20 minutes getting the date changed. I have four watches at home; it would have taken 20 seconds to change the date on them. I normally change the time when the plan leaves the runway. I’m ready when I walk down the gangway to be where I need to be when I need to be. I got use to my fitness trackers updating the time.

Upon arriving home, I quickly changed the Vivosport back to the right date.

I then synched my Vivosport, and it fixed the date automatically, there went 35 minutes of frustration, but then I did not pay to have a watch only be correct when it is hooked to a machine.

I took it off. It is plugged into my desk, still with the wrong date on it; it did not update for daylight saving’s time. If I sync it, it probably will. However, there is no reason to sync it.

The Garmin Vivosport is not my first fitness tracker. I had a Fitbit for 20 months. However, it literally fell off my wrist. The band where it connected to the Fitbit just disintegrated. Fitbit still works, but there was nothing I could do to put it back on my arm. Hence, the reason why I purchased the Garmin Vivosport. Never had a Garmin product fall apart, so it had to be better.

Fitbit for $100 for 20 months. Garmin Vivosport for four months for $200. Not thinking I made the right move.

Synching a fitness tracker is like watching a friend’s vacation photos, not videos, photos! At best, it is a history that I no longer recognize or know about. I know I’ve been there done that it’s just too late; it no longer has interest 2-4 days later.

What it is not doing, what I paid the money for it to do, is tell me in real time what I am doing, or not doing. Yes, it still comes on and says to move, but how much? What I have I done today, how long have I been sitting, how much more do I need to do? Is today a good day or a bad day, do I need to change some things around to catch up? My working Vivosport answered a lot of questions that I enjoyed and wanted to know. Now, it answers nothing. It provides no information without the manual and smaller fingers to help you learn how to find it.

I’m spoiled. I like a screen that I got to know that said to get off your butt and do something. It also told me how much of that something I needed to do.

I’m going to start working to send it back. It might be a hurdle, but between persistence and my law degree, I’ll get my money back. When I do, I’ll tell you how I got it done so you can get your money back also.

Unless you like your paperweight.

Update on my Garmin 1000

Keeping it plugged into a computer all the time, catching the occasional update also does not work. It just doesn’t seem to like it. When I check to see if it is charged and up to date, Garmin Express can’t find it, and the Edge 1000 needs to be turned off, reset or restarted.

So now it sits on my desk, with me hoping to remember to plug it in before in enough time to top off the charge and catch any updates.

Both situations seem to need software fixes. The Velosport I can understand dealing with Verizon, I don’t like Verizon either half the time. The Edge, I don’t understand why they can’t fix that issue. I know Garmin knows about it.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,


Louis Garneau Recalls Bicycle Helmets Due to Risk of Head Injury

Hazard: The bicycle helmets do not comply with the impact requirements of the federal safety standard for bicycle helmets, posing a risk of head injury.

Remedy: Replace. Consumers should immediately stop using the recalled helmets and contact Louis Garneau for instructions on how to receive a free replacement helmet.

Consumer Contact: Louis Garneau at 800-448-1984 from 8 a.m. to 6 p.m. ET Monday through Friday or online at http://www.garneau.com/us/en/ and click on “Recall Notice” at the bottom of the page for more information.

Photos available at: https://www.cpsc.gov/Recalls/2018/Louis-Garneau-Recalls-Bicycle-Helmets-Due-to-Risk-of-Head-Injury

Units: About 650 in the U.S. (In addition, about 550 were sold in Canada.)

Description: This recall involves Louis Garneau Course Helmets with model number LG1261 printed on the inside of the helmet. “Garneau,” “Course” and “LG” are printed on both sides of the recalled bicycle helmets. They were sold in matte black and matte fluo yellow. The manufacturer’s date and serial number are printed on a sticker inside the helmet.

Only lot and serial numbers listed below are included in the recall.

Helmet Lot/ Manufacturer’s Date/ Serial Number Range available here: https://www.cpsc.gov/Recalls/2018/Louis-Garneau-Recalls-Bicycle-Helmets-Due-to-Risk-of-Head-Injury

Incidents/Injuries: None reported

Sold At: Authorized bicycle dealers nationwide from December 2015 through January 2018 for between $180 and $240.

Importer: Louis Garneau USA Inc., of Derby, Vt.

Manufacturer: Strategic Sports Limited, of China

Manufactured in: China

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,



We are getting closer; New Helmet from 6D is pretty amazing and adds the most protections for head injuries of any helmet on the market.

Still no third-party testing to confirm any statements made by any helmet manufacturer; however, from my view, the engineer looks solid. It is the helmet I would wear. 6D Helmets does post testing from NIST (U.S. Commerce Department’s National Institute of Standards and Technology).

The 6D Helmet was tested by Dynamic Research, located in Torrance, California, again a rare occurrence to identify the testing lab that developed the data, lending more credibility to the data.

Summary

6D Helmets evolved from motorcycle helmets so the company’s background is solid. However, the forces on the head and brain in a motorcycle crash are quite different from those of a cycling crash. 6D seems to have taken this into consideration in the design of its cycling helmets. 6D refers to all the directions that the brain can be subject to impact including rotational.

6D Helmets advertises its helmets can deal with Low, Mid, and High-Velocity impacts with its designs. Low speed impacts have been the major issue in current ASTM helmet standards because under that standard, there is not enough pressure to crack the helmet, therefore, no dissipation. Basically, the EPS density used in helmets is too high to affect low-speed crashes.

There is also an argument that the venting in cycling helmets increases the issue because the engineering for the venting increases the issues the EPS can deal with, increases the EPS density to sustain an impact.

One of the big issues with EPS helmets is after a crash, determining if the EPS is intact and is the helmet still viable. 6D Helmets‘ mountain-bike helmet as a removable liner so you can inspect the EPS to determine if it has been compromised.

The information on the website contains a ton of testing information, and as stated above, testing from U.S. Commerce Department’s National Institute of Standards and Technology (NIST). The testing of the 6D Helmets is done against other unnamed helmets.

How I found out about 6D Helmets was a press release where they announced they had received a $250,000 grant as one of the finalists for a helmet competition. 6D Helmets won the competition.

The challenge was for an “Energy Management Material Solution.” Over 125 companies applied, and only 5 were chosen as finalists and awarded $250k to work further. One winner. The other companies were never disclosed.

However, that announcement that 6D Helmets won the competition listed the research lab doing the testing Dynamic Research, as a co-winner of the competition.

There is a lot of engineering, a lot of data and the classic website charts on the 6D Helmets website. I’ve looked it over and if true, it means another leap forward in helmet technology for human-powered recreation. You should read the information and study it for yourself as I’m not an engineer, and I could be wrong. I don’t think so……, but I could be.

Currently, 6D Helmets has helmets available for downhill and trail cycling. However, they hope to expand into ski soon and other sports also.

So?

I’m going to get one. I’m still going to wear my Bern Hard Hat (See A new idea that makes sense in helmets: the Bern Hard Hat), which is no longer produced I’ve been told, while skiing, if I wear a helmet. I believe that the Bern Hard Hat, like the 6D Helmet does a better job of protecting against concussions, the real issue with any head injury.

No helmet is going to keep you alive if you crash hard. Internal bleeding, a torn ascending aorta, is probably how you are going to die, no matter what is on your head. However, these helmets extend the protection from tree branch hits to maybe protecting your brain from a concussion.

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

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Email: Rec-law@recreation-law.com

Google+: +Recreation

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, 6D Helmets, Helmets, Concussions, Technology,