Boy Named Sue Syndrome May Impact a Manufacturer Near You

YEARS AGO, Johnny Cash had a hit song about a boy whose father named him “Sue.” The reason for the name: the dad had decided to leave the family and would not be around to teach the son how to be tough.

“So I gave you that name and I said goodbye. I knew you had to get tough or die,” the dad explained, following a barroom brawl with his now-grown son. The two were still on speaking terms — even after the son smashed a chair across his dad's teeth and the father whittled away a piece of his son's ear.

In much the same way, what became a brawl between Ford and Firestone has spilled out into the street. Our industry is getting pulled into it as these two giant companies go kicking and gouging in the mud and the blood and the beer.

In an attempt to settle this and future disputes, Congress last fall passed the Transportation Recall Enhancement Accountability Documentation Act. While the title does not communicate a whole lot, it does produce a memorable acronym (TREAD) for a law inspired by failing tires.

The basic idea behind the TREAD Act is that manufacturers need to tell NHTSA whenever they know of a safety-related defect involving their products. If they don't, TREAD increases the amount of civil penalties manufacturers may have to pay. And for the first time, legislation now empowers NHTSA to seek criminal penalties. Hide the problem and go to jail.

With the game plan drawn, Congress handed the ball to NHTSA to work out the details. The agency has begun doing so, issuing an advanced notice of proposed rulemaking earlier this year that gives a general indication of the direction NHTSA's final rule may take and seeks input from concerned parties.

Public Citizen, a consumer group, praised the plan, saying “The Ford-Firestone tragedy dramatically showed…major gaps in the agency's current information collection practices. The TREAD Act was passed, in large part, to remedy this information gap.”

Despite praising the proposal, Public Citizen could not resist zinging NHTSA by pointing out, “Of course, NHTSA has long had ample information-gathering authority that it could have used to secure these data even prior to Ford-Firestone.” NHTSA hasn't been tough enough, the group implies. Perhaps Public Citizen would like to rename the agency Safety Unsatisfactorily Enforced (SUE).

Beyond Public Citizen, the National Truck Equipment Association and the Truck Trailer Manufacturers Association are part of a lengthy list of organizations that have responded to NHTSA's request for input. Both associations are concerned about how well rules designed for the automotive industry (17 million vehicles built last year) could be applied to our low-volume assembly lines and truck equipment shops.

A critical question is how many vehicles with a defect will it take to trigger the TREAD Act. Mike Kastner, NTEA director of government relations, suggested to NHTSA that a combination of numerical threshold and percentage of production be considered. Otherwise, the truck equipment distributor who has one safety defect among his order of two trucks may be in trouble because 50% of his production is flawed. By contrast, TTMA suggests a threshold of 500 units before TREAD Act requirements apply.

TTMA also is requesting that the reporting requirements of TREAD apply only to safety-related equipment such as tires, axles, suspensions, and brake components; rear impact guards; lighting components; and coupling devices such as kingpins, fifthwheels, pintle hooks, and drawbar eyes.

The idea of criminal penalties seems to be gaining attention. Recently French authorities began a criminal investigation of certain Volvo automobiles. The irony here is that the Swedish automaker has built its reputation (and its marketing) around auto safety. The company is alleged to have known about 180,000 automobiles with braking problems. Instead of issuing a recall, the company reportedly instructed its dealers to fix the problem as the cars came in for routine service.

But it isn't likely that trailer engineers or truck equipment distributors will be serving jail sentences anytime soon. The more immediate concern seems to be increased public exposure of product flaws. NHTSA may want to collect information about a manufacturer's warranty claims, field reports from employees and dealers, changes to components and service parts, customer complaints, customer advisories, and recalls — in addition to car, truck, and trailer cases in which serious injury or death occurred.

Highway safety is everyone's concern, and manufacturers have a moral and legal responsibility to fix problems that put the public at risk. But with a jury system that can award $3 billion to a cigarette smoker as happened in Los Angeles recently, we wonder if the TREAD Act has the potential to make a personal injury lawyer's dream come true. As one attorney told us, “The fact that so many internal documents will become public record is challenging for defense attorneys. Plaintiff's lawyers will access the data and attempt to establish that the product had a defect. If they do, all that's left to prove is that the defect caused the accident.”

Had Johnny Cash spent his career in our industry, he might have changed his song, because it sounds like life will be easy for a boy who will sue.

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