Wednesday, December 24, 2014

Consumer 10.0: Flaws in the recall system

Snow thrower cases raise questions about vulnerability and the legal process.

Phila. lawyer Jamie Sheller with snow thrower wheels that have exploded. She knows of 200 injuries that occurred despite the firm´s recall efforts.
Phila. lawyer Jamie Sheller with snow thrower wheels that have exploded. She knows of 200 injuries that occurred despite the firm's recall efforts. TOM GRALISH / Staff Photographer

Facing the latest blast of winter, most of us would feel fortunate to have a snow thrower or blower parked in the garage. And that's just how Scott Ladd felt nine days ago, as the first shot of nature's recent one-two punch bore down on the East Coast.

Ladd's contentment didn't last. The first blizzard of February 2010 fell short of his Long Island town. But as Ladd and his son, Christopher, were preparing by filling the tires on his Yard Machines Two-Stage Compact Snow Thrower, one of its plastic wheel rims exploded.

The 12-year-old, who just wanted to help Dad, suffered hand injuries and a scratched cornea as a piece of plastic shrapnel pierced his eyelid.

Scott Ladd first thought his son might have fractured his left thumb and index finger, along with the lacerations and bad bruises he suffered. Thankfully, it turned out that no bones were broken.

Ladd's relief was overshadowed by anger, however - especially once he went online and discovered that the snow thrower, which he bought in December at a Bohemia, N.Y., hardware store, had been recalled more than three years earlier by MTD Products Inc., of Cleveland, because of similar wheel-rim explosions.

"My son could have lost an eye - it could have been really, really more tragic than what it was," Ladd says.

As anyone who follows the news knows, consumer products can cause worse harm. On Tuesday, the U.S. Consumer Product Safety Commission reported three infant deaths in drop-side cribs made by an out-of-business manufacturer, and urged parents and caregivers to quit using them. (For more information, go to www.cpsc.gov) Snow throwers themselves - misused - can chew up a finger or hand.

Still, the story of injuries from MTD snow throwers illustrates some troublingly persistent flaws in the recall system. So it's worth hearing - and checking to make sure you don't have an accident waiting to happen in your own garage or shed.

Could you own one?

The recalled snow throwers were made in Canada by an MTD subsidiary and marketed from July 2004 through March 2006, according to the October 2006 recall notice.

The recall targeted 130,000 snow throwers distributed through hardware stores, home-improvement centers, and retailers such as Sears and Kmart. The units bore several brand names - Yard Machines, Troy-Bilt, and Craftsman - and sold for about $500 to $800.

By CPSC standards, the recall was modest. In 2006, the agency shepherded 467 recalls affecting more than 123 million items deemed hazardous after they were sold. The range of affected products was wide, befitting an agency that claims jurisdiction over 15,000 categories.

By CPSC standards, the recall was also considered effective, in that it had reached more than 65 percent of the snow throwers' owners by mid-2009. "In terms of consumer outreach," says agency spokeswoman Patty Davis, "that's successful."

MTD general counsel Terry Hollister says the company hasn't stopped trying. "The most recent report I've seen is that we're at 83 percent," he told me Friday.

But those numbers have a flip side - and that's the side that has drawn the focus of Jamie Sheller, the Philadelphia lawyer who called my attention to the defective snow throwers.

Sheller says she knows of more than 200 injuries caused by the exploding plastic rims - a toll of victims that has continued to mount despite the company's efforts.

One of those was Gregory Paulin, 50, of Stroudsburg, Pa., who was hurt in December 2008, more than two years after the recall. He says he was convinced he had done something wrong when the rim exploded, breaking his thumb, as he filled a flat tire with air.

"I checked to see if my fingers were still there - I couldn't feel anything in my hand," recalls Paulin, a retired New York City cop.

In Paulin's case, the injury was capped a year later by a painful irony: A recall notice and repair kit arrived in December 2009. At first, he thought it was one of his old friends playing a joke.

A lawyer's role

To Sheller, the MTD cases raise questions about consumers' vulnerability to product defects and even about the legal process itself.

"I knew this was going to happen - this is my nightmare," Sheller said last week, when she called to report Christopher Ladd's injury. The mother of a 10-year-old, Sheller had told me earlier that she feared a child would get hurt helping prepare for one of this winter's storms.

Sheller has settled claims so far on behalf of nine victims of the exploding MTD rims. Each time, the company has insisted on a "gag order," a common demand in liability cases. In return for a settlement, it bars a victim from discussing an injury and limits what lawyers can disclose.

"Why don't companies want to get the word out?" Sheller asks.

Hollister says MTD wants to do exactly that.

"We're not satisfied, obviously. The objective is to get to as many people as we can to avoid potential injuries," he told me Friday. He says that's why the company continues to push for names beyond its original list of customers who returned registration cards.

"Every name and address we've gotten, we've immediately sent them notices and repair kits," he says.

Is there a better way to deal with product defects?

Advocates such as Rachel Weintraub, director of product safety for the Consumer Federation of America, continue to press for the CPSC to use its access to product-injury data to be more proactive - for instance, to look across manufacturers and product categories for common design flaws that might be preventable.

It's not clear if plastic wheel rims could be such a problem, though they have been cited for years in recalls of products that include wheelbarrows, scooters, hose carts, and wagons.

MTD shifted to metal wheels on its snow throwers in 2007. But Hollister says the change was made to address consumer perceptions, not because plastic cannot be strong enough.

Weintraub says the key is better engineering to start with. "The biggest problem with a recall is that the hazard is already out there," she says. "To get all the pieces back is kind of like putting Humpty Dumpty back together again."


Contact columnist Jeff Gelles

at 215-854-2776 or jgelles@phillynews.com.

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