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As we approach the summer months, Florida tire lawyers will unfortunately see an increase in tire failures resulting in rollovers. This has been an undeniable pattern since steel belted radial tires were introduced four decades ago.

Studies have shown that tires, whose chronological age is older than six years, have a higher propensity for experiencing tread separation events. This is not only borne out by studies focusing on tire age, but it is also supported by scientific analysis happens to rubber over time.

The passage of time has a deleterious effect on the elastic and supple qualities of rubber. Studies have shown that over time rubber hardens, loses elasticity, and has a lower break point tolerance. The qualitative effect on rubber by time can be observed by the laymen in rubber bands which become brittle, break more easily, and have less elasticity as time goes by.

In a tire case, the most important initial step is to secure and protect the evidence. After this has been accomplished, the tire that has failed will need to be examined by a forensic tire expert. This may seem like a simple straight forward proposition, but getting the tire expert together in the same room with the critical evidence may be subject to more nuances than the inexperienced attorney may suspect.

Miami tire lawyers understand that the tire that has failed, together with the tread pieces that may have detached from the tire are key pieces of evidence which need to be preserved throughout the case so that they may be presented at trial, if necessary. Lose this key evidence and a multi-million dollar case may be lost.

Because there are only a handful of qualified forensic tire experts in the entire world, the tire expert chosen by an attorney may reside far from the location where the tire is being stored. Accordingly, some attorneys will use a delivery service such as FedEx. When such a service is used, overnight delivery with a tracking system should be employed, and upon delivery of the subject tire and tread parts to the expert confirmation should be established between the expert and the attorney.

In order to prevent the tire from being lost in shipping, some attorneys have the expert travel to the location where the tire is being stored or the plaintiff attorney’s law office to inspect the tire. Other attorneys have the subject tire delivered to the expert personally, by an investigator or by a courier. This is not always feasible or practicle, and it does not necessarily insure that the tire will arrive without being lost or damaged.

While it is not common, tires which are key evidence in rollover cases have been lost in transit, and with the loss of such evidence the case may also be lost. Because of this concern, great care must be taken at both the sending and receiving ends when a failed tire, together with tread pieces, are sent to an expert for a forensic examination, or sent back to the Plaintiff’s attorney’s office.

This same high degree of care should also be taken when the defendant in a tire defect case requests an opportunity to have one of their own experts examine the tire. In such cases, it is important for tire lawyers to document the chain of custody of the tire, and place the burden on the defendant, to take possession of, and responsibility for, the tire. In the alternative the Plaintiff’s attorney should insist on eliminating the concern about the loss of the tire by having the defendant’s expert come to the plaintiff’s attorney’s office, or the location where the tire is being stored for that expert to complete his or her examination of the tire.

Bottom line: great precaution should be taken to document the chain of custody of a failed tire, or any failed product in a product liability case. Product Liability lawyers must take whatever measures are necessary to reduce the possibility of the loss of the evidence. Nevertheless, practicality and cost consciousness require that shipping, with pre-cautions, also be used in these cases.
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The manner in which the tread of a tire peels away during a tread separation event will dynamically affect the stability of the vehicle. Miami tire lawyers need to understand these dynamics because tread separation events happen most frequently in the warm weather states such as Florida, Texas, Arizona, and California.

Vehicle dynamic experts have studied the effects of the tread of a tire peeling away with the top steel belt while leaving the carcass of the tire and the underlying steel belt intact. These events typically occur at highway speeds because the centrifical forces required to have the tread disengage from the rest of the tire are only reached at highway speeds.

The length of time that it takes for the actual disengagement of the tread is proportional to the amount of vehicle instability. With each rotation of the tire there is a drag and pulling dynamic which occurs in the direction of the side on which the tread separation is occurring. During this time that the tire is breaking apart, there will be an influence on the driver to make steering adjustments in the direction opposite to vehicle side where the tread separation is occurring. The longer the tread separation occurs the more adjustments are made.

When the tread finally releases from the tire, the vehicle will suddenly and unexpectedly change from an understeer vehicle to an oversteer vehicle at which time all of the subtle adjustments made by the driver will create a dramatic and over exaggerated response in the opposite direction to the side of the vehicle on which the tread separation occurs.

This is the reason why one commonly sees a vehicle rollover to the left when the right rear tire experiences a tread separation, and conversely a vehicle will go off the road to the right when it is the left rear tire which suffers a tread separation.

All during this period when the tread is pulling away from the vehicle it can slap against and interact with many parts in the undercarriage of the vehicle, creating additional erratic forces.
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As Miami trial lawyers, who handle a significant number of tire cases, we have been asked to consider what constitutes a perfect tire case. Upon reflection, we believe that such a case is akin to a unicorn, a mythical beast.

The perfect tire case in our view would go something like this: A consumer purchases a brand new vehicle, and upon riding out of the car dealership’s lot, one of the tires suffers a tread separation, which results in an accident causing injury. This event is captured on the dealership’s surveillance video and becomes exhibit #1 at trial.

Unfortunately, that is not the way defective tire cases unravel, literally or figuratively. A tread separation which arises out of a manufacturing or design defect is like a cancer which takes many miles and revolutions of the tire to manifest itself.

These events are almost never captured on video tape and have to be reconstructed by accident reconstruction experts. Furthermore, the many miles required to be traveled before these events typically occur allow for the tire manufacturers to attempt to deflect liability to other roadway events that may have occurred during these miles of usage.

Accordingly, tire attorneys who handle these cases in Miami and throughout Florida are confronted with a litany of defenses, including the usual suspects:

• Some other roadway hazard or event caused the tire tread separation;
• The driver did not properly inflate the tires over a period of time and this contributed to the tread separation event; and • The driver did not respond properly and contributed to the vehicle losing control.

Unlike other types of cases, such as a rear-end automobile accident case, tire defect cases are almost always challenged by a laundry list of defenses, including those cited above. Despite the fact that we have tried and settled over 100 tire defect cases, we have never had the experience of a tire manufacturer admitting, in one of our cases, that they made a defective tire.

If a victim drove out of a car dealership’s lot with a brand new vehicle and brand new tires, and a tire disintegrated and it was all captured on video, perhaps that would engender an admission of liability, but it would not surprise us, if even under those circumstances, a tire manufacturer came up with some creative theory to contest liability.
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The State of Florida has more boating accidents than any of the other 49 states. This is for a number of reasons including the sheer number of boaters and the numerous waterways surrounding and throughout the state. The South Florida area has a particularly high number of boat accidents as boaters are able to use the waterways year around.

The following is a horrific example of the potential hazardous and dangerous situation that can occur with the operation of a boat, like any other motor vehicle:

During the Easter holiday in 2005, two young girls took out a personal water craft (PWC) or Waverunner in hopes of a quick and fun ride off of North Flagler Drive in the West Palm Beach area of South Florida. Minutes later the two girls were involved in a tragic accident, colliding with another boat while traveling very fast. One of the girls suffered severe brain damage and other physical injuries, while the other young girl died at the scene.

The attorneys for the young girls are suing Yamaha claiming that the Waverunner had defective steering that only allowed the watercraft to steer while it was accelerating. They argue that the girls were unable to steer away from the boat prior to the collision. The attorneys argue that Yamaha knew about the steering problem and should have corrected it in this watercraft. Yamaha was the last of the PWC manufacturers to correct this steering issue in 2003 and the young girls were operating a 2001 model. The attorneys are also making a claim for punitive damages, claiming that Yamaha showed a “reckless indifference for human life.”

Yamaha’s defense claims that if the girls had known how to properly operate the PWC, they would have been able to avoid the collision. Furthermore, they argue that the girls were operating the PWC illegally because they were under 16 years of age, the minimum age to operate a PWC in Florida.

Opening arguments for both sides took place last week in Palm Beach County, Florida.
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The three most important rules for handling product liability cases are: (1) preserve the evidence; (2) preserve the evidence; and (3) preserve the evidence. This is especially true for Florida product liability lawyers who must deal with climate, hurricanes, and salt water conspiring with other factors to erode evidence.

When the integrity of a product is called into question, through allegations of design or manufacturing defect, it is critical to preserve the product following an accident. Sometimes, it is actually impossible to preserve the evidence when the product itself has been destroyed as a result of an accident. For example, a fire caused by a defect may destroy much of the evidence, or a boat which malfunctions may be lost at sea. Nevertheless, to the extent possible, whatever remains of the product should be preserved by storage, photographing, and/or videotaping.

If the product is damaged, an exemplar product may have to be purchased for inspection and analysis in addition to whatever non-destructive testing can be done with the product involved in the accident. Under Florida law, the plaintiff is charged with the responsibility of proving that the product was defective by design or manufacture at the time it left the hands of the maker or distributor of the product. This typically requires a full forensic examination of the product, to the extent allowed without creating further destruction of the product.

At the outset of an attorney’s investigation into a product liability cases, thought must be given to what efforts need to be undertaken to obtain the product, store it safely, or notify the party who has possession of the product that the product needs to be maintained and preserved. Failure to preserve the evidence will undoubtedly lead to legal challenges, some of which may be insurmountable.

Miami product liability lawyers need to keep the critical mantra of “preserve the evidence” in mind at the outset of a case. At Jay Halpern and Associates, we have had the experience of hiring scuba divers to search for component parts of a truck that crashed into oncoming traffic on the 7 mile bridge, and then flipped over a guardrail into the Atlantic Ocean. This is just one example of the extremes that may need to be explored to collect and preserve evidence. Dedication to the concept of preserving the evidence not only requires the expenditure of funds, but also requires creative thinking.
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The presence of a nail in a tire that has failed does not necessarily rule out the fact that the tire may have failed as a result of a manufacturing or design defect.

While it is true that a nail may cause a tire failure, a full investigation must be made regarding whether or not a specific tire failure was caused by the presence of a nail or some other factor.

A puncturing nail will allow for loss of air pressure. Driving a vehicle on a tire with critically low air pressure will allow for the tire to sag and for the buildup of heat within the tire. Ultimately, the tire will fail in the form of a sidewall blowout.

Nevertheless, there are many tread separation events that are caused by a manufacturing or design defect in a tire that coincidentally also has a nail, but the nail had no influence on the tire failure event.

Consider a motor vehicle whose headlights are not working. If the motor vehicle is stopped at a red light and rear -ended in the bright light of day, the fact that the headlights were not in good mechanical repair had nothing to do with the cause of the car accident.

Likewise, a nail may or may not be the cause of a tire failure. We have observed tire tread separation cases caused by manufacturing and design defects where the tread pulled away from the tire, but forensic evidence left on the tire showed that the tread separation event did not originate anywhere near the area of the puncturing nail. Even patch repairs for prior punctures have remained completely intact when the tread has pulled away from the tire and experts have found that if the repair was done properly it had nothing to do with the tread separation event.

Obviously, the presence of a nail or prior tire repair complicates the analysis of the case, but a knee jerk reaction, concluding that a nail or a prior tire repair is the cause of every tire failure is inappropriate.
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Florida’s hot weather makes our subtropical paradise a haven for tire failures. Tread separations and other tire failure events metamorphose a vehicle from an understeer vehicle to an oversteer vehicle.

Most vehicles, including SUVs, when operating properly, are understeer vehicles. Understeer simply means that a vehicle will react with less steering correction than is actually input by the driver. Consider driving down a straight roadway and moving the steering wheel back and forth, yet remaining in a straight line. Properly operating vehicles do not change direction proportional to the amount of input that an operator places in the steering wheel. This allows for greater control and fine subtle adjustments by the driver.

Many tire failures, including tread separations, cause a vehicle to change from under-steer to over-steer. Over-steer means that a vehicle reacts with more change of direction than is actually input by the driver. This contributes to loss of control and rollovers following tread separation events.

When over-steer occurs the unsuspecting driver is placing an amount of input into the vehicle that is reasonable, but the vehicle has undergone a transformation because of the lack of tread in one of the wheel positions. Accordingly the vehicle now overreacts to even a minor steering adjustment causing the vehicle to literally spin out or “yaw” in a clockwise or counterclockwise motion. When this occurs, a driver is virtually helpless to prevent a rollover crash.

Because of this ultra-dangerous phenomenon, it is extremely important for tire manufacturers to design and manufacture tires that resist tread separation.
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Honda is once again recalling more of its vehicles for defective air bags. On Monday, May 2, 2011, Honda announced that it would recall another 833,000 vehicles for air bag related problems, bringing the total air bag recalls from Honda to an estimated 1.7 million vehicles.
This is the fourth recall for air bag problems by Honda in the last four years. Honda’s defective air bags have been subject to numerous products liability cases, as they have caused severe injury and death to Honda automobile drivers.

The recalls have been for defective air bags that deploy with too much pressure. When this occurs, it causes the inflator casing of the air bag to rupture, which allows for metal fragments to pierce through the airbag material and in turn expose drivers to serious injury and fatality.

The first recall was in late 2008 for only a select 3,900 Accords and Civics from the 2001 model. Then in the summer of 2009, the recall was expanded to another 440,000 automobiles, including more Accords and Civics from 2001 and some Accords and Acura 3.2 TLs from 2002. A third recall from Honda occurred in February 2010 for an additional 378,000 vehicles.
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Florida drivers need to be aware that the spare tire may be a hidden time bomb. Heat is a factor that makes tire failures more prevalent in Florida. When old tires heat up, the likelihood of a catastrophic tire failure increases.

There have been repeated cases throughout the country and in Florida, involving failures of tires which look brand new but are chronologically so old that the rubber properties have deteriorated so that the tires fail shortly after being placed into service.

Some of these tires have even been tires that have been the subject of previous recalls. How does this set-up for tragedy occur? In many cases, the tire in question was originally a spare tire while the tires in service were repeatedly changed out. Over a period of many years the spare tire inconspicuously remained unused in the spare wheel position. Ultimately, the spare is placed into service with deep unused tread and the appearance of newness. In fact, the qualities of the tire rubber may have deteriorated to such an extent that the component parts of the tire do not remain unified and the tire experiences a tread separation resulting in a rollover.