Bike Defects

Sad news out of Massachusetts where police seem to be blaming a fork failure in the death of a father of three.  We’re guessing there will be some in depth analysis of this accident.  Cervelo recalled the fork in 2008.  From the story:

Joe Travis, the owner of Taunton’s Travis Cycle, which does not sell Cervelo bicycles, said, “It’s distressing because there is a certain amount of camaraderie in the cycling community.”

“Cervelo makes a very nice bike, but there has been a rash of these fork recalls,” Travis said.

With the start of the road racing season in the Pacific Northwest, now is the time to ensure your bike is in race shape — or at least in as good of shape as your legs.  Even if it was tuned when you stuck it on the trainer for it’s 4-month ’cross hibernation.  Even if you hung it up in August.  What standards of care should we apply to tuneups?  We like these but as pointed out, every individual wrench is, well, individual.  We’ve yet to see a court case examining mechanic’s standards of care, by way of expert witness.  But we’re constantly surprised by the mechanicals on the first group ride.  Go over your bike like you would want your mechanic to go over your car. And if you can’t, see a pro.

The CPSC recalled 30,400 “Little Tricky” helmets last week.  Should parents who bought these helmets have known better?  Least appealing name for a bike helmet since the “Fragile Skull.”

While there’s no debating the need for helmets on bikes, we’re pretty focused on snow right now.  This year may make it official: The ski helmet has become ubiquitous.  But are we any safer?  We always wonder if helmets make riders/skiers take more unreasonable risks than they would without helmets, and we always think of this classic post on the ski helmet debate when doubletaking at someone bareheaded in the backcountry.  It seems like we used to wear ski hats on the way down too.  Pray for snow.

We’re not sure this is accurate, but interesting nonetheless, and it certainly corresponds with the mythology of lawyer tabs: A short history of these cursed ridges. Like all worshippers at the church of pro, we get rid of our tabs at the first opportunity.  There may be some warranty issues there.

But interestingly, for those of you riding quick release front hubs — and that’s all of you — lawyer tabs are not required for compliance with federal safety standards.

Front hubs. Front hubs not equipped with lever-operated quick-release devices shall have a positive retention feature [which includes lawyer tabs] that shall be tested in accordance with the front hub retention test, §1512.18(j)(3), to assure that when the locking devices are released the wheel will not separate from the fork.

16 CFR 1512.12(c) (emphasis added).  In other words: file away! Actually don’t.  Still, as previously observed, even compliance with CPSC standards will not immunize manufacturers against suit.  Expect plaintiffs to argue that reasonably safe bikes have lawyer tabs, regardless of what federal law says, and manufacturers to keep making forks with tabs — all the while knowing that we’ll just grind them off.

We suspect that soon most stables will be all carbon, especially when repairing carbon becomes more affordable.  We’re almost there, and have been holding off on carbon mountain bike frames based on risk of damage and cost of repair.  Need we worry? Read this article about repairing carbon frames which allays some concerns.  A repaired Cervelo we know looks as good as new.

tirelove

It’s autumn and in the Northwest that means cyclocross.  Sitting down to glue our tubulars for the muddier races later this season (we use Stu Thorne’s Belgian tape method), our thoughts turned to the Consumer Product Safety Commission.

We’ll cop to being tire geeks, but were still surprised to discover that the CPSC’s standards do not apply to the race tires we roll this time every year.  The federal regulation entitled “Requirements for Tires,” 16 C.F.R. Part 1512, exempts “tubular sew-up tires” from the requirements to print maximum inflation pressure and stay “intact on the rim” under 110 per cent of recommended inflation pressure.  We’re not worried, as we keep the Dugasts inflated to the absolute bare minimum, and bottom out about once a lap.  But still, it’s interesting to note that the small numbers of tubulars being raced on ‘cross courses throughout the U.S. this fall and winter are not subject to the same standards as almost every other tire.

Presumably the tires could still be recalled if defective.  And, answering a question we posed earlier this month, courts have split as to whether recall letters are admissible as evidence of an admission by the manufacturer as to defect, Higgins v. General Motors Corp., 250 Ark. 551, 556 (1971) (holding that recall letters are admissible in actions against manufacturers, but not retailers), or inadmissible as hearsay, Vockie v. General Motors Corp., 66 F.R.D. 57 (E.D.Pa., 1975). In instances where the recall letter was deemed admissible, it is important to note that a recall letter alone does not substantiate a claim that the product in question was defective. Barry v. Manglass, 55 A.D.2d 1, 9-10 (1976).  Rather, it can be presented as circumstantial evidence to support any direct evidence provided as to the defect.  Id.  For example, a recall letter could be used to help establish that the product was defective when it left the manufacturer’s control. Id.

In Washington State, the consumer expectations test used in products liability claims requires a jury to consider whether a product was more dangerous than the ordinary consumer would expect.  Thongchoom v. Graco Children’s Products, Inc., 117 Wn.App. 299, 305 (2003).  Because a recall letter speaks to the failure of a manufacturer to meet the consumer’s expectations, it is highly relevant to the question of what consumers should expect from a product.  Then again, it is highly prejudicial.  And manufacturers who voluntarily bring information to the awareness of the public have a reasonable argument that they are taking subsequent remedial measures – conduct that is generally inadmissible to prove liability.

The Gray Lady reports that lighter bikes may be making pro cycling, and ostensibly less-than-pro cycling, increasingly perilous.  Ian Austen reports on several factors, including race radios, faster speeds, and bigger fields.

Specialized's Broken Fork

Just after we speculated regarding fork shearing safety, and right as the cyclocross season kicked off around the country, Specialized and the U.S. Consumer Product Safety Commission recalled 14,200 bikes, because the “brake component housed within the bicycle’s carbon fork can disengage from the fork and allow the brake assembly to contact the wheel spokes while rotating, posing a fall hazard.”  Although we see some S-works Tricross bikes at CX races, we don’t see a ton of the nine 2011 models affected by the recall.  Still 14,200 bikes is a lot (well, relatively.  Americans buy almost 20 million bikes a year.)

No injuries have been reported.  That’s not the case for another recall—a massive 91,000-unit pull of $100-bikes sold at Walmart sold between February and July this year.  Apparently the chains break, and the manufacturer, Bridgeway, is aware of 11 accidents, including nine with injuries.

These recalls raise some important questions.  First, how are different states using CPSC recalls and standards to prove or disprove liability in lawsuits?  At least in Washington, expert witnesses can keep their jobs:

Although codes and standards implicitly reflect a consideration of the balance between the likelihood and seriousness of harm on the one hand, and the impact that an alternative design would have on a product’s usefulness on the other, the fact that there is compliance with codes does not, as we have stated, trump the declarations of expert witnesses.

Soproni v. Polygon Apartment Partners,  137 Wash.2d 319, 330 (1999).  Still, codes are almost certainly going to be relevant. In a a bike helmet liability case this summer, the Third Circuit found:

[M]ost jurisdictions applying the Restatement (Third) of Torts to products liability cases hold that evidence of compliance with product regulations is admissible to prove whether or not a product is defective. E.g., Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 481 S.E.2d 518, 521 (1997). Courts in jurisdictions that have incorporated the entirety of the Restatement (Third) of Torts are free to admit such evidence under section 4, which provides:

Noncompliance and Compliance with Product Safety Statutes or Regulations

In connection with liability for defective design or inadequate instructions or warnings:

(a) a product’s noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risk sought to be reduced by the statute or regulation; and

(b) a product’s compliance with an applicable product safety standard or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of a product defect.

The District Court admitted such evidence in this case. It permitted Bell to demonstrate its compliance with the CPSC Standard, 16 C.F.R. § 1203.1, as evidence that its helmet was not “defective,” under section 2 of the Restatement (Third) of Torts.

In part on these grounds, the Third Circuit held:

[E]vidence of Bell’s compliance with the CPSC Standard was relevant to the jury’s inquiry because it went to at least two facts of consequence under section 2 of the Restatement (Third) of Torts, section 2. First, the CPSC Standard sets forth detailed rules for impact resistance and testing, and for labels and warning—both on the helmet and its sales packaging. Evidence that Bell complied with the CPSC Standard’s requirement for impact resistance testing makes it “more probable,” Rule 401, that “all possible care was exercised in the preparation and marketing of the product,” Restatement (Third) of Torts § 2(a). Second, evidence that Bell complied with the CPSC Standard makes it “less probable,” Rule 401, that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings,” Restatement (Third) of Torts § 2(c). Of course, such evidence was not conclusive on these points, but it was relevant and therefore presumptively admissible under the Federal Rules.

Covell v. Bell Sports, Inc., 10-3860, 2011 WL 2690396 (3d Cir. July 12, 2011), as amended (July 14, 2011).

What does a recall mean for a company? First, it’s illegal to sell products that have been recalled.  But what of those products that remain in the stream of commerce? Stay tuned for the answer.

Anyone who watched the end of George Hincapie’s ride in the 2006 Paris-Roubaix quickly understood the consequences of a steerer tube failure.  At the time, Trek blamed the failure of its house brand fork on Hincapie’s crash earlier in the day.  It was a pro-level fork, of course, but used an aluminum steerer tube, probably like most of the steerer tubes we mortals find ourselves using.  In the last two weeks, we have seen a sheered steerer tube and carbon seat post, neither of which appeared to have caused any rider harm.  Add to the mix last year’s revelation by generally high-end frame house Felt, that 2100 of its bikes had a “fork steer tube can break, causing the rider to lose control, fall and suffer injuries.”

photo courtesy bicycling.com

We at bikedefects.com inspect our seatposts religiously, and use a torque wrench when doing anything around carbon.  Still, operator diligence is not always enough.  If pro mechanics can prepare a rig for the most important one-day classic of the year, and still have a failure, does the unsupported rider stand a chance?  And the Felt recall, a similar recall of high-end Giant fork and Hincapie’s wreck suggest that these failures are not confined to inexpensive bicycles.

A decision earlier this year from Division One of the Washington State Court of Appeals illustrates the course of steerer tube failure cases: In November 2007, Monika Johnson was riding her bicycle along a downtown Seattle sidewalk when the front carbon fiber fork of the bicycle “sheared from the steer tube suddenly and without warning.” Johnson v. REI, 159 Wash.App. 939, 942 (2011).  The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.

Johnson sued REI, where she had bought the bike in 2002.  Both the bicycle and the carbon fiber fork, although not manufactured by REI, were marketed under REI’s brand name, Novara. Johnson had purchased the Novara brand bicycle from REI in 2002. In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs.  In other words, although the bike was five years old at the time of the accident, the fork was no more than two years old.

Johnson didn’t sue the fork manufacturer, Aprebic Industry Company, Ltd. (check out Aprebic; one has to assume this is the type of outfit where a lot of our carbon bits, pieces, and frames are coming from) as a defendant in the action.  REI filed a motion for partial summary judgment, seeking a ruling that it was entitled to ask the jury to allocate fault to Aprebic or, in the alternative, to file a third party complaint against Aprebic. In response, Johnson filed a motion for partial summary judgment, asserting that REI was strictly liable for her injuries.

In support of her summary judgment motion, Johnson submitted expert testing that suggested that the fork, where the fracture occurred, “was manufactured using a relatively small number of [carbon fiber] layers.”  The expert concluded that “[t]he small number of carbon fiber layers and their orientation interface resulted in the nucleation and propagation of cracking” and that this cracking “led to the catastrophic fracture and failure of the fork.”

According to the expert, the thickness of the carbon fiber layering where the fracture occurred was “just a fraction of the thickness of the carbon fiber layup elsewhere in the fork and steerer tube.”   He stated that the carbon fiber layers also “displayed voids, gaps, separations, and kinks, which are all indicative of defective manufacturing.”  The expert also observed that the carbon fiber layers at the point of the fracture were “starved of epoxy,” making them “more susceptible to failure,” and noting that “[t]he orientation and makeup of the carbon fiber layers can only occur during manufacturing; they are not defects that can occur after the product has been manufactured.”

REI’s expert inspected the same material and found that “there is presently insufficient information to rule out the accumulation of prior damage to the front fork as the cause of ultimate fork separation.”  He stated that “the nature of the fracture was not determined” and that additional laboratory testing should be conducted, including loading an examplar fork to determine its breaking strength.  He also noted that the bicycle itself was “clearly a high mileage vehicle” that displayed “substantial wear and tear.” The REI expert further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.”

REI was not allowed to allocate fault to Aprebic because it was a manufacturer for purposes of the Washington Products Liability Act, and is strictly liable as a matter of law for all damages and injuries that plaintiff sustained.  The upshot of Johnson is that when retailers market a product under their own brand name the WPLA extends liability to them as if they were manufacturers.

What new lessons can the domestic bike industry take from Johnson? Probably not many, as most U.S. frame houses likely assume that if a frame bears their name and fails, they will not be able to shift liability to a Taiwanese manufacturer.  What can cyclists take away from Johnson? Even if you are hurdling toward Roubaix, your steerer tube is a weak link. Like the rest of your bike, inspect it after crashes and seek professional advice when appropriate.

Through a series of strange and unfortunate events at this weekend’s High Cascades 24, this happened:

When is a dented frame safe to ride?  We’re reserving judgment — and not riding the frame — until the experts at our local bike shop weigh in.  But prudence counsels toward making this Kona Kula Primo a wall decoration at the office, rather than our favorite single-speed race rig.  Unfortunately, we weren’t at the wreck to confirm the rumors about scandium frames being prone to denting. But given the broken spokes, we think the top tube took a pretty good whack.

UPDATE:

LBS reports that the dented frame is “reasonably low risk.”  Reasonably low risk is enough for us.  The experts suggest that lack of depth, creasing, or sharp angles in the dent (despite looking as though the dents were created by a ball peen hammer) makes the frame safe to ride.