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.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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UVEX Bicycle Helmets being recalled

Identifying Information: This recall involves seven models of UVEX helmets. The helmets come in a variety of colors with different colored chin straps. The helmets have a model number inside the helmet under the fitting pad on the top right side. The affected helmet model numbers are XB017, XB022, XB025, XB027, XB032, XB036 and XB038.

Remedy UVEX Sports Inc. toll-free at (844) 767-0656 from 9:30 a.m. to 6:30 p.m. ET Monday through Friday, or online at http://www.uvex-sports.us and click on “Recall” for more information.

Units: 46,800

Year Manufactured: September 2009 through June 2014 for about $100 to $260.

Incidents/Injuries: None reported.

Uvex Sports GmbH & Co. KG, Germany

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.

 

 

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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

Plaintiff crashed her bike suffering head injuries. Plaintiff was wearing a bicycle helmet that was subject to a recall, earlier. Plaintiff hoped her injury could be paid by the helmet manufacturer using the recall as the influence with the jury.

Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

State: Michigan

Plaintiff: Tracy Ann Jenish

Defendant: Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL

Plaintiff Claims: negligence, gross negligence, and breach of warranty

Defendant Defenses:

Holding: for the defendant

Year: 2007

This is why recalls are such a problem. The recalls themselves are a nightmare for the outdoor recreation industry because the problems don’t fit in the Consumer Product Safety Council (CPSC) mold. The cost goes through the roof trying to comply with the requirements of the recall and deal with the resulting bad publicity.

The biggest problem is recalls immediately show up on plaintiff attorney’s websites with the line have you been hurt using/wearing this product “call us.”

In this case, the plaintiff purchased a bicycle helmet from the defendant retailer. The bicycle helmet was subject to a recall prior to the plaintiff’s crash. The plaintiff exchanged the helmet for a newer one due to the recall, prior to her crash. The plaintiff fell while riding her bike suffering head and other injuries and sued.

The first defendant was a retailer in New York. The retailer purchased the helmet from a distributor in Texas. The distributor imported the helmet from the manufacturer, a Spanish corporation. All three, the manufacturer, distributor and retailer were defendants to the litigation. All three were in the chain of sale from the manufacturer to the consumer.

The theory behind allowing suits against everyone involved in the litigation is anyone in the chain could have spotted the defect and prevented the consumer from purchasing a defective product. That was a great theory when wagon wheels were being sold. Everyone understood wagon wheels and could see a flaw or defect in a wagon wheel before the consumer purchased the wheel.

That general theory does not work any longer in software, computers or in this case a bike helmet. If you could understand the physics and engineering behind the creation of the helmet, you could not see the defects in many cases because the defects are covered by plastic.

The suit was filed in Michigan the home state of the plaintiff in the United States District Court for the Eastern District of Michigan, Southern Division. Federal courts are the courts in place to deal with litigation between parties from different states or of the US and another country. The federal courts are not subject to the issue of “hometowning” or deciding a case solely on the issue of where the parties live the courts’ hometown.

The three defendants filed a motion for summary judgment, which was granted.

Federal District Court decisions are reported. Very few states report trial court decisions. However, this is different in the federal system, and we have an interesting case.

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

The plaintiff dismissed its negligence and gross negligence claims and proceeded on its breach of warranty claims prior to this motion. The plaintiff stated there was no express warranty claim, only a breach of implied warranty. Implied warranties are warranties that attach to any sale. They are not written down on in the manual, they occur whenever there is a sale. Implied warranty of merchantability and implied warranty of fitness for a particular purpose are warranties that go with every sale and are the two main claims in lawsuits.

These warranties are not in writing and unless disclaimed, they go with any sale. The first, warranty of merchantability means the product meets the requirements of the industry where they are sold. The implied warranty of fitness for a particular purpose is a warranty that the promises made by the sellers will be met by the product. For more information on these warranties see The legal relationship created between manufactures and US consumers.

No specific warranty was mentioned in the decision other than the warranty of fitness and merchantability. There were also allegations that there was a breach of warranty under Michigan’s law, which may be the same or different from the warranties explained above.

The plaintiff’s case was based on the recall. The CPSC required recall “poster” which was entered into evidence as proof of the recall and the defect. The plaintiff also had an expert who opined that plaintiff’s head injury “directly related to the inadequacies of the Catlike Kompact bike helmet.”

No other evidence was introduced. The expert’s opinion was not specific, and did not provide any cause for the injury or the failure of the helmet. The court held that because there was no analysis of the crash, speed, location of impact or details of the accident that the expert’s opinion was of no value.

As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. All that has been presented is a one-page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required un-der CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation.

Although warranty claims require very little evidence to prove, in this case, no evidence was presented that the court could rely upon to uphold the claims of the plaintiff. The court granted the three defendants motion and dismissed the case.

So Now What?

This case has little value in teaching about helmet crashes, and the liability issues involved in manufacturing helmets. What it does teach is the unintended consequence of dealing with a recall and the CPSC.  

It is impossible, probably, now days to create a product that will never have a recall. However, that does not mean you should try. As important, if you are looking at a recall, make sure you fully understand the consequences and work with counsel to lessen the impacts of the recall on your company and the effects it may have.

You also must disclaim all warranties other than the warranties you want for your product. If the proper disclaimer had been part of the information going with the sale of the helmet than this case would not have gone this far.

It is common for many products in the outdoor recreation industry to be brought into the US without the proper warranties and disclaimers. Additionally, many times when translated a product manual the word warranty will be translated into the word guaranty in English, which creates even greater liability issues.

 

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Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

Tracy Ann Jenish, Plaintiff, vs. Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL, a Spanish Corporation, Defendants.

Case No. 05-CV-73648

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754

May 9, 2007, Decided

May 9, 2007, Filed

CORE TERMS: helmet, catlike, bicycle, safety standard, summary judgment, head injuries, consumer, warranty, material fact, brain, acceleration, testing, seller, bike, Bicycle Helmets Final Rule, entitled to judgment, traumatic, hematoma, usa, Consumer Product Safety Act, matter of law, genuine issue, implied warranty, proximate cause, manufactured, manufacturer, distributor, attenuation, deposition, violating

COUNSEL: [*1] For Tracy Ann Jenish, Plaintiff: Lawrence S. Katkowsky, LEAD ATTORNEY, Lawrence S. Katkowsky Assoc., Bingham Farms, MI.

For Kreb Cycle, Defendant: Matthew A. Brauer, LEAD ATTORNEY, Rutledge, Manion, (Detroit), Detroit, MI.

JUDGES: GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

OPINION BY: GEORGE CARAM STEEH

OPINION

OPINION AND ORDER GRANTING DEFENDANT THE KREB CYCLE’S MOTION FOR SUMMARY JUDGMENT (DOCUMENT # 38)

INTRODUCTION

Before the court in this product liability lawsuit is a motion for summary judgment brought by defendant The Kreb Cycle, a New York seller of bicycle equipment, in which it asserts it is entitled to judgment on all counts in the complaint. 1 Because the court agrees that plaintiff has not raised a question of material fact as to causation of her injuries by an allegedly defective bicycle helmet, defendant’s motion is granted as set forth below.

1 The other defendants to this action have not filed answers to the complaint.

BACKGROUND

Plaintiff Tracy Jenish was riding with a bicycling [*2] club on Wing Lake Road in the area of Bloomfield Hills, Michigan on September 26, 2002, when she fell off her bike and suffered serious bodily injuries, including injuries to her head. She was wearing a helmet called a “Catlike Kompact,” manufactured by defendant Catlike Sport Components SL, a Spanish corporation, distributed by defendant Monarch Velo LLC, a Texas corporation 2, and sold to the plaintiff by movant-defendant Kreb Cycle, a New York corporation.

2 Answers to the complaint by the remaining defendants have not been filed, and defendant Kreb Cycle states in its motion that the other defendants are in default. The docket reflects that a clerk’s entry of default was filed as to defendant Monarch Velo, L.L.C. on June 2, 2006.

The Kreb Cycle (hereinafter “defendant”) started carrying these helmets after its owner attended a trade show in Las Vegas, where a model of the Catlike Kompact helmet was on display. Defendant ordered the helmets from Monarch Velo LLC, d/b/a “Catlike USA,” a Texas distributor. [*3] The helmets came with the manufacturer’s label stating they complied with U.S. Consumer Product Safety Commission (“CPSC”) standards. Although there are no records of the sale, defendant does not dispute that it sold the helmet to plaintiff. Plaintiff’s recollection, according to her deposition, is that she called in with a credit card or ordered it online, at some point during the year preceding the accident.

In 2003, some months after plaintiff’s accident, the Catlike Kompact helmet was the subject of a voluntary manufacturer recall. Defendant has produced a copy of the CPSC’s announcement of this recall, which is reproduced below in its entirety, with the exception of the generic CPSC headings and contact numbers:

*****

CPSC, Monarch Velo, LLC doing business as Catlike USA Announce Recall of Bike Helmets

Washington, D.C. — The U.S. Consumer Product Safety Commission announces the following recall in voluntary cooperation with the firm below. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product: Catlike Kompact TM Bike Helmets

Units: 2,250

Distributor: Monarch Velo, LLC, doing business [*4] as Catlike USA, of Houston, Texas

Hazard: The helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.

Incidents/Injuries: None reported.

Description: This recall involves Catlike Kompact TM adult bicycle helmets. The helmets were sold in two sizes (small/medium and large/extra large) and various colors. The sizing label inside the helmets reads “Kompact” and “SM/MD” or “LG/XL.”

Sold at: Bicycle shops nationwide sold the helmets from March 2002 through February 2003 for about $ 130.

Manufactured in: Spain

Remedy: Contact Monarch Velo for information on receiving a free replacement helmet.

Consumer Contact: Contact Monarch Velo toll-free at (877) 228-5646 between 9 a.m. and 5 p.m. CT Monday through Friday or visit the firm’s web site at http://www.catlike-usa.com

Media Contact: Chris Watson at (877) 228-5646.

Exhibit D to Defendant’s Motion. Plaintiff obtained a replacement Catlike helmet after announcement of the recall.

This action was filed in federal court on the basis of diversity of citizenship in September 2005. [*5] Plaintiff’s First Amended Complaint, filed September 29, 2005, makes a common claim against all three defendants, asserting negligence, gross negligence, and breach of warranty in the design, manufacture, and distribution of an unmerchantable, “untested” bicycle helmet that failed to protect against injury to the head.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment “forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court’s use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

The [*6] standard for determining whether summary judgment is appropriate is “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The evidence and all reasonable inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). [*7]

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant’s pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

ANALYSIS

Kreb Cycle asserts in its motion that it is entitled to judgment as to all three of plaintiff’s claims: negligence, gross negligence, and breach of warranty. In response, plaintiff asserts it is “only relying on the implied warranty of fitness and merchantability as to this Defendant and will not, therefore, respond to [*8] Defendant’s arguments as to negligence and gross negligence.” Accordingly, judgment is hereby granted for Kreb Cycle as to plaintiff’s negligence and gross negligence claims.

The sole claim remaining as to this defendant is plaintiff’s breach of warranty claim. Plaintiff concedes defendant made no express warranty regarding this helmet. Accordingly, proceeding on a cause of action for breach of an implied warranty, plaintiff asserts that she has established a prima facie case of breach of implied warranty under Michigan law, 3 citing to this court’s case of Konstantinov v. Findlay Ford Lincoln Mercury, 2006 U.S. Dist. LEXIS 85836, 2006 WL 3299487. As set forth in that case, under the Michigan Tort Reform Act, effective in 1996,

(6) In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:

(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person’s injuries.

(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the [*9] failure to conform to the warranty was a proximate cause of the person’s harm.

Mich. Comp. Laws Ann. § 600.2947(6).

3 Although the retailer was a New York seller, neither party asserts applicable law other than that of Michigan.

Defendant’s argument for summary judgment on this claim is that plaintiff has not come forward with any evidence of a specific defect in the helmet, and has not drawn any kind of causal connection between the alleged defect and her head injuries. It cites to Mascarenas v. Union Carbide, 196 Mich. App. 240, 249, 492 N.W.2d 512 (1992) for the elements of a product liability case under Michigan law: proof that the defendant supplied a defective product, and that the defect proximately caused the plaintiff’s injury. Defendant argues that plaintiff relies only on the helmet’s later recall, disclosed in a 5/22/03 CPSC press release (stating that the recall was occurring “in voluntary cooperation with” the U.S. distributor) and conclusory statements [*10] by an expert, neither of which establish a question of material fact as to proximate cause. 4

4 Defendant also addresses plaintiff’s weak assertion, in answers to interrogatories, that defendant “had a duty to determine whether the model helmet in question did in fact meet CPSC standards.” As defendant argues, there is no such duty required by Mich. Comp. Laws Ann. § 600.2947(6), set forth above.

The court agrees with the defendant. Although precedent such as Mills v. Curioni, Inc., 238 F. Supp. 2d 876, 886 (E.D. Mich. 2002) and the very recent decision in Coleman v. Maxwell Shoe Co., 475 F. Supp. 2d 685, 2007 U.S. Dist. LEXIS 11513, 2007 WL 551608 (E.D. Mich. 2007) lend support to defendant’s argument concerning non-manufacturing sellers and the need for a showing of negligence in failing to detect a product’s defect, this case must be dismissed whether or not such evidence is required.

Plaintiff’s expert’s initial report, created by Tyler A. Kress, Ph.D. in Knoxville, Tennessee, dated [*11] October 6, 2006, summarily lists plaintiff’s injuries following the accident. It then lists all of the expert’s qualifications, his fees, and the records he reviewed. These are a 9/26/2002 CT scan of plaintiff’s head; the hospital’s discharge summary; a letter of April 3, 2003 by a Jon Wardner, M.D. stating plaintiff’s disability; the CPSC announcement of the helmet recall; and the plaintiff’s deposition. Dr. Kress also states that he met with the plaintiff. The remainder (and the entire substance) of his letter/report stated only a conclusion that a “defect” of the helmet was “directly related to the inadequacies of the Catlike Kompact bike helmet.”

Defendant then brought a motion, granted by the magistrate, for sanctions and to require a supplemental report by November 15, 2006, containing a “complete statement of all opinions to be expressed and the basis and reasons therefor…” A supplemental report was subsequently created by Dr. Kress. That report, dated November 15, 2006, is set forth below in its entirety:

Dear Mr. Katkowsky:

This is to supplement my report of October 6, 2006, regarding the above-styled cause.

1) Use: It is my opinion that it is foreseeable [*12] that some consumers will sustain a preventable head injury due to the impact performance (or lack thereof) of the helmet while using it in an appropriate manner as it is intended to be used.

Protective head gear and bicycle helmets have the ability to eliminate or greatly reduce traumatic head and brain injury when properly designed an manufactured. To ensure that bicycle helmets available in the consumer market adequately serve these goals, the Consumer Product Safety Commission has created safety standards for a range of criterion, including impact attenuation (CPSC’s Safety Standard for Bicycle Helmets Final Rule: 16 CFR Part 1203).

Bicycle helmets that have adequate impact attenuation performance, as set forth by the CPSC’s safety standards, and are used in an appropriate, reasonable, and correct manner are highly successful in preventing or greatly reducing traumatic head and brain injury. As found in a 1989 study by Thompson et al and explicitly cited in the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11713), riders with helmets had an 85% reduction in head injury risk, and 88% reduction in brain injury risk.

2) Reason for Injury: [*13] Ms. Jenish’s head injury is directly related to the inadequacies of the Catlike Kompact bike helmet.

The CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) explicitly establishes a performance test to “ensure that helmets will adequately protect the head in a collision” (pg. 11714). As a component of this performance test, helmets are required to not exceed a peak headform acceleration of 300 g for any impact. This pass/fail criterion of 300g or below is consistent with other standards such as the ANSI, Snell, and ASTM (CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11714; Halstead 2001). The Catlike Kompact bike helmet is inadequate due to the fact that it failed impact standards that pertain to the design and performance of the helmet in a foreseeable use that may result in an impact to the head.

In the accident on September 26, 2002, Ms. Jenish hit a curb while riding her bicycle, was ejected, and impacted her head. She reported a loss of consciousness at the scene, and her relevant injuries include, but are not limited to, a traumatic brain injury and a subdural hematoma. Ms. Jenish sustained a direct impact to the back [*14] of the head (occipital region) which corresponds to a right occipatal scalp hematoma and the area of impact and failure seen in the helmet. Contact head impacts, such as this, result in predominantly linear acceleration of the head and brain, with small components of angular acceleration. Linear acceleration can product focal brain injuries, such as subdural hematomas, as well as concussions; as seen in Ms. Jenish.

The severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards. Subdural hematomas, similar to the one sustained by Ms. Jenish, are commonly caused by an impact to the occipital region (Kleiven 2003, Zhou et al 1995). The acceleration of the head in an occipital impact exceeded the values of what a reasonably designed and protective headgear would have given the wearer. Due to the failure of the Catlike Kompact bicycle helmet to comply to the CPSC’s impact safety standards Ms. Jenish’s head experienced higher acceleration values resulting in a more serious traumatic brain injury than would have been experienced if the helmet was compliant with the impact standards of the CPSC. [*15]

3) Design Defect: The helmet is inherently dangerous and defective by design in that it fails to comply with impact testing standards required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.

The impact attenuation standards of the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) was created in order to “ensure that helmets will adequately protect the head in a collision” (p. 11714). Failure to meet this standard endangers consumers by failing to prevent or reduce injury.

If you have any questions or need anything further please do not hesitate to contact me.

Sincerely,

/s/

Tyler Kress, Ph.D., CIE

Exhibit I to Defendant’s Motion and Exhibit 2 to Plaintiff’s Response.

Defendant contends that all this report arguably establishes is that the helmet failed to “meet standards;” and that plaintiff has failed to connect that alleged, undefined defect to her injuries. As defendant asserts, there is no evaluation of items such as plaintiff’s speed at the time of the crash, location of impact, descriptive information concerning the object struck or other details of the accident. Defendant [*16] points to the serious injuries sustained by the plaintiff in the crash, including fractured vertebrae, a crushed rib cage, fractured collarbone, bulging spinal discs, and a collapsed lung, and asserts that helmets don’t rule out any and all head injuries, in any crash or at any speed, but serve to help protect against head injuries. Plaintiff has not identified the manufacturing or design elements of the helmet that led to voluntary recall nor has accident reconstruction tied these elements to the plaintiff’s injuries.

As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. 5 All that has been presented is a one page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability [*17] of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation. Accordingly, it is the court’s determination that plaintiff has not produced evidence to raise a question of material fact regarding causation. Defendant’s motion will be granted.

5 Plaintiff has failed to identify any specific claimed defect, such as deficiencies in the suspension or cushioning system, hardness or thickness of the plastic, ventilation engineering, overall shape, the strapping mechanism, or any other particular aspects of the helmets in general, much less the helmet worn by plaintiff. Without knowing the defect that motivated a voluntary recall, and without testing of the helmet worn by plaintiff, it is impossible to conclude that a defect caused her injury.

CONCLUSION

Because plaintiff has failed to raise a question of material fact as to the proximate causation of her head injuries by an alleged defect in her bicycle helmet, summary judgment will enter as to all claims brought [*18] by the plaintiff against this defendant.

IT IS SO ORDERED.

Dated: May 9, 2007

S/ George Caram Steeh

UNITED STATES DISTRICT JUDGE


If you want a safer bicycle helmet get one with MIPS

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The MIPS brain protection system reduces rotational forces on the brain caused by angled impacts to the head. In a MIPS helmet, the shell and liner are separated by a low friction layer that lets the helmet slide relative to the head during impact. The MIPS design was inspired by the cerebral spinal fluid surrounding the human brain, which allows it to slide inside the head on impact. MIPS mimics this protective mechanism by giving the helmet its own low-friction layer which also slides to absorb much of the energy created by an angled blow to the head.

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

Louisiana Supreme Court set forth how a court decides if there should be a duty or to create a duty.

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Plaintiff: Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier

Defendant: City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.

Plaintiff Claims: negligence failure to properly fit the helmet and instruct on the use of the helmet

Defendant Defenses: no duty

Holding: For the defendant (retailer) Sears Roebuck and Co.

The plaintiff’s in this case are a mother, father and six-year-old child. The parents went into a Sears store and purchased a bicycle helmet for the child. They did not ask for or receive any assistance in purchasing the helmet.

The boy was riding on the municipal tennis court when he had an accident. The plaintiffs sued the city that owned the tennis court, the helmet manufacturer and Sears Roebuck where they purchased the helmet.

Sears filed a motion for summary judgment arguing they had no duty to fit or instruct on the use of the helmet. The trial court granted the motion. The Appellate court reversed finding the trial court committed error in dismissing the case. Sears filed this appeal to the Louisiana Supreme Court.

Summary of the case

In this case, it was the responsibility of the plaintiff to prove negligence. The first step in that would be to prove that the defendant owed the plaintiff a duty to provide a point of sale fitting instruction for bicycle helmets.

In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale.” The only thing the plaintiff could point to was the opinion of its expert that the defendant owed a duty. However the expert could not point to any authorities, research or other retailers that supported his statement. “Courts have held that experts may not rely on their own conclusions as authority in the absence of any objective support.”

The court stated the considerations that need to be covered before a duty can be created.

…it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.

Applying the above requirements to this case, the court found no reason to create a duty upon the part of a retailer to provide a point of sale fitting instructions for bicycle helmets. “Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.”

So Now What?

There are two important things that come from this decision. The first is no duty exists unless your industry, your community, or you create one. Unless you advertise you are going to do something, market yourself or write your requirements down, it is difficult for the plaintiff to prove you owe them anything, a duty or money.

The second is the list of requirements the court set forth to determine if a duty has been created. It is not as easy to review as a list; however, it provides some factors that you can review to make sure you are not creating liability that does not exist.

·        Make sure you know the issues you must do when dealing with your business, program or job.

·        Don’t create liability if you don’t have too.

What do you think? Leave a comment.

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Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier versus City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.

No. 2010-CC-0007

SUPREME COURT OF LOUISIANA

2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

October 19, 2010, Decided

SUBSEQUENT HISTORY: Rehearing denied by Carrier v. City of Amite, 2010 La. LEXIS 3053 (La., Dec. 10, 2010)

PRIOR HISTORY: [**1]

ON WRIT OF CERTIORARI FROM THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA.

Carrier v. City of Amite, 6 So. 3d 893, 2009 La. App. LEXIS 215 (La.App. 1 Cir., 2009)

DISPOSITION: REVERSED AND RENDERED.

COUNSEL: Stephen Dale Cronin, GUGLIELMO, MARKS, SCHUTTE, TERHOEVE & LOVE; John David Ziober, KENNON, ODOM & DARDENNE, APC, For Applicant.

Arthur W. Landry, Jeanne Andry Landry, ARTHUR W. LANDRY AND JEANNE ANDRY LANDRY, ATTORNEYS; Christopher M. Moody; John Ernest William Baay, II, Ernest Paul Gieger, Jr., GIEGER, LABORDE & LAPEROUSE, LLC; Thomas Reginald Hightower, Jr., THOMAS R. HIGHTOWER, JR., APLC, For Respondent.

OPINION

[*1247] PER CURIAM *

* Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

We granted certiorari in this case to determine whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets. For the reasons that follow, we conclude plaintiffs failed to establish any legal duty on the part of the retailer under the facts presented.

UNDERLYING FACTS AND PROCEDURAL HISTORY

This case arises from an incident in which six-year-old Blake Carrier was injured while riding his bicycle on a municipal tennis court on May 29, 2002. At the time of the accident, Blake was wearing a bicycle helmet his parents allegedly purchased from Sears, Roebuck and Co. (“Sears”) in December 2001.

[Pg 2] Subsequently, Blake’s parents filed the instant suit against several defendants, including Sears. 1 Plaintiffs alleged Sears [*1248] failed to properly fit the helmet and instruct them regarding its correct use.

1 Also named as defendants were Bell Sports, Inc. (the manufacturer of the helmet), and the City of Amite (the owner [**2] of the tennis court). These defendants are not at issue for purposes of this opinion.

During discovery, plaintiffs produced an expert in the area of bicycle safety, James Green. In his deposition, Mr. Green stated he advised his clients to instruct their buyers on the proper use and fit of bicycle helmets. However, Mr. Green admitted he knew of no rules or laws requiring retailers to fit and instruct buyers of bicycle helmets. Mr. Green also explained his clients did not include Sears.

Sears filed both a motion in limine and a motion for summary judgment. In support of the motion in limine, Sears argued Mr. Green had no basis for his conclusion that retailers had a duty to fit and instruct buyers on the proper way to wear a bicycle helmet. In support of the motion for summary judgment, Sears argued retailers had no duty to buyers to fit and instruct on the proper use of bicycle helmets.

The district court granted Sears’ motion in limine to exclude Mr. Green’s testimony, and further granted Sears’ motion for summary judgment to dismiss all claims against Sears.

Plaintiffs appealed. On appeal, the court of appeal reversed, finding the district court erred in deciding the duty issue without [**3] first determining that the expert’s testimony was inadmissible under the factors identified in Daubert v. [Pg 3] Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Accordingly, the court of appeal reversed the judgment granting the motion for summary judgment, and remanded the case to the district court for further proceedings. Carrier v. City of Amite, 08-1092 (La. App. 1 Cir. 2/13/09), 6 So. 3d 893, writ denied, 09-919 (La. 6/5/09), 9 So. 3d 874.

[Pg 4] On remand, Sears re-urged both the motion in limine and the motion for summary judgment. 2 After a hearing, the district court denied Sears’ motions.

2 On remand, Sears filed a pleading captioned “Motion for Hearing on Summary Judgment and Motion in Limine for Purposes of Issuance of Oral Reasons for Judgment, or Alternatively, Motion Requesting Written Reasons for Judgment.” Plaintiffs assert this motion was procedurally improper, because nothing in the court of appeal’s opinion indicated the case was being remanded for entry of reasons. However, the record reveals Sears filed its original motion for summary judgment and motion in limine, as well as [**4] supporting exhibits, into the record at the hearing. Thus, despite the caption of the motion, we believe Sears expanded its pleadings to reurge its motion for summary judgment and motion in limine. See La. Code Civ. P. art. 1154.

Sears sought supervisory review of this ruling. The court of appeal denied the writ, with one judge dissenting.

Upon Sears’ application, we granted certiorari to consider the correctness of the district court’s decision. Carrier v. City of Amite, 10-0007 (La. 3/12/10), 29 So. 3d 1241.

DISCUSSION

The central question presented in this case is whether plaintiffs established a legal duty on the part of a retailer, such as Sears, to provide point-of-sale fitting instructions for bicycle helmets. In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 at p. 8 (La. 3/10/06), 923 So. 2d 627, 633, we discussed the principles for determining the existence of a legal duty:

[HN1] A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La. 5/18/99), 733 So. 2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993); [**5] [*1249] Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993). In [Pg 5] deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Faucheaux, 615 So. 2d at 292; Perkins, 98-2081 at 22, 756 So. 2d at 404.

In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale. Rather, plaintiffs seek to establish the existence of industry standards, including best practices, which they claim are relevant to determine whether a general duty is owed.

At this juncture, the parties dedicate a large part of their briefs to discussing whether the district court properly qualified Mr. Green as an expert on the subject of point-of-sale assistance in the sale of bicycle accessories. However, we find we need not [**6] resolve the question of Mr. Green’s qualifications under the unique facts presented, because we find that Mr. Green’s testimony, even if accepted, is insufficient to establish any factual basis for a duty on the part of Sears.

In his deposition, Mr. Green testified as follows:

They came out with a mass market approach to the Wal-Marts, etcetera, the Sears, the Lowe’s, whoever, that wanted to sell bikes, where they just wanted to get bikes and components out there into the commerce stream. They don’t provide point-of-sale service at all. You have, you have two families of retail organizations here. I maintained ever since I saw this developing some years ago that this mass market approach is not a good thing, that if you’re going to be a reputable retailer and I tell my clients that, if you’re going to be a reputable retailer, you must properly instruct at the point-of-sale from everything to how to operate a quick release, to how to fit a helmet, to never ride at night without a light on your bike, that kind of thing. It should be done at the point-of-sale, because bikes aren’t toys, they’re, they’re vehicles. [emphasis added]

[Pg 6] Although Mr. Green testified the fitting of bicycle [**7] helmets “should” be done at the point of sale, he cited no authority for this proposition other than his own opinion. To the contrary, when asked whether any regulations existed requiring a retailer to provide point-of-sale instructions on fitting bicycle helmets, Mr. Green testified, “[n]o, there’s nothing written up as a standard.”

Similarly, in response to Sears’ interrogatories, plaintiffs admitted Mr. Green did not rely on any formal requirements in support of his position:

INTERROGATORY NO. 4

Please identify any and all standards, state or federal regulations, engineering, helmet manufacturer, department store and/or retail association periodicals, documents or guidelines which your expert, James M. Green, relies upon in opining that an industry standard existed in November, 2001 requiring that retailers of bicycle helmets must give point of sale instructions on proper sizing and fitting.

ANSWER TO INTERROGATORY NO. 4:

There is no requirement but perfectly clear instructions provided by BHSI. Most reputable retailers do fit at the [*1250] point of sale. These include REI, Performance Bicycle, Brooklyn Bike Shop, and any bike shop who belong to the Independent Bicycle Retailer Organization [**8] (now known as the National Bicycle Dealers Association (NBDA). There are currently 6000 shops who belong to NBDA who employ helmet fit at point of sale (See attached documentation from NBDA). The NBDA also outlined the differences between a reputable shop and a mass merchant shop on the safety issue. (See attached documentation from NBDA). [emphasis in original]

A review of the documentation attached to plaintiffs’ answer to Interrogatory No. 4 reveals none of these documents set forth an industry standard which would mandate the fitting of bicycle helmets by a retailer at the point of sale. Moreover, Mr. Green admitted he did not know if Sears belonged to any bicycle safety industry group.

[Pg 7] Under these circumstances, we must conclude Mr. Green’s testimony reflects his own personal opinion as to what a retailer should do, and is not based on any objective standards establishing what a retailer is required to do. Courts have held that [HN2] experts may not rely on their own conclusions as authority in the absence of any objective support. See Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y. 1999) (holding the expert’s testimony was without foundation because “[w]ithout ‘industry standards’ [**9] to rely upon, [the expert] seems to base his conclusions on his own authority”). Thus, Mr. Green’s testimony does not establish the existence of any statutes, regulations, or industry standards which would support the finding of a duty on a retailer to fit bicycle helmets at the point of sale.

Additionally, as a matter of policy, we find no ground for recognizing such a duty based on general principles of tort law. In Meany v. Meany, 94-0251 at p. 6 (La. 7/5/94), 639 So. 2d 229, 233, we discussed the policy considerations to be taken into account in determining whether the law imposes a duty under particular facts:

[HN3] When a plaintiff articulates a general rule or principle of law that protects his interests, it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). [**10] In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim [Pg 8] fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La. 1988); William E. Crow, The Anatomy of a Tort, 22 Loy. L. Rev. 903 (1976).

Applying these precepts to the instant case, we believe the policy considerations militate against the finding of any duty on the part of a retailer to provide point-of-sale fitting instructions for bicycle helmets. Under current societal norms, we do not believe it is reasonable to require mass-marketing [*1251] retailers, such as Sears, to offer specialized point-of-sale advice on the thousands of products they sell. Rather, it is typically understood the consumer will ask [**11] for assistance, if it is required. In the instant case, the deposition testimony of Mr. Carrier establishes he never asked for any assistance at the time he purchased the helmet. Moreover, Mr. and Mrs. Carrier testified in their respective depositions that they believed the helmet, which was purchased as a Christmas gift for Blake, fit him properly; indeed, Mrs. Carrier testified it “was the best-fitting helmet [Blake] ever had.” Mrs. Carrier admitted she did not consult the instructions for fitting the helmet, and testified the instructions “probably got thrown away because we’ve had helmets before so we know how to use them.” 3 Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.

3 Interestingly, Mr. Green opined that the manufacturer’s instruction on use and fit in this case were “the best I’ve ever seen.” Nonetheless, Mr. Green stated he believed point-of-sale assistance on fit was necessary in part, because consumers frequently failed to consider the instructions on fit and use provided by manufacturers. However, Mr. Green conceded that such a duty did not exist in the case of mail-order [**12] purchases. This dichotomy in Mr. Green’s testimony reveals the fallacy in his conclusions. We believe the more consistent approach is to place the duty on the consumer to determine the product he or she purchased is appropriate for its intended use.

In summary, we conclude that under the facts presented, there is no legal duty which would require Sears to provide fitting instructions for bicycle [Pg 9] helmets at the point of sale. In the absence of any legal duty, Sears is entitled to summary judgment as a matter of law.

DECREE

For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Sears, Roebuck Co. is granted, and judgment is entered in its favor dismissing the claims of plaintiffs with prejudice.

REVERSED AND RENDERED.

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