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A new study bolsters one of plaintiffs' key claims in rollover cases – that weak roofs are the main cause of death and serious injuries in rollover accidents.

The study, conducted by the Insurance Institute for Highway Safety, found that the stronger a roof, the lower the risk of injury to occupants of a vehicle.

Plaintiffs' attorneys and consumer advocates say the study just confirms what they have been arguing all along.

"This report rebuts the long-standing industry argument that roof crush doesn't matter," said Clarence Ditlow, executive director of the Center for Auto Safety in Washington, D.C. He noted that 30,000 people die or are seriously injured in rollover crashes each year.

Some plaintiffs' attorneys are already weighing the use of the study in litigation.

Michael Piuze, a Los Angeles plaintiffs' attorney, has cited to it in a motion for a new trial in a rollover case involving a Jeep Grand Cherokee.

"These studies are a big deal," he said. He is also citing a recent government study performed by the National Highway Traffic Safety Administration (NHTSA) linking weaker roofs to greater injury.

But others acknowledge it's hardly a given that a jury will see the study.

"This study goes to the heart of the issue. Its fundamental conclusion is a direct relationship between how strong a roof is and how likely a person is to be hurt in a rollover," said Tab Turner, a plaintiffs' attorney in North Little Rock, Ark. "The problem is you still have to figure out how to make that study admissible."

"It's an uphill battle," said Larry Coben, a plaintiffs' attorney in Scottsdale, Ariz.

Philip Cosgrove, a products liability defense attorney at Grace, Cosgrove & Schirm in Los Angeles, said he would object to statistical analysis being used to determine causation.

"In my last trial, no statistics were allowed in unless they were specific to the vehicle in question," he said, acknowledging that if a future case involved one of the vehicles tested in the new study, a judge might be more likely to admit the study.

A proposed change to roof strength standards by NHTSA has also created controversy because it includes language suggesting that a new rule would preempt state law. The proposed rule would increase the current roof strength standard, which has been in effect since 1971.

The findings

The Insurance Institute study looked at 11 mid-sized SUVs, including Jeep Grand Cherokee, Nissan Xterra, Chevrolet Blazer, Dodge Durango, Ford Explorer, Toyota 4Runner, Mitsubishi Montero and others.

Researchers tested them by measuring the amount of force required to crush the roof two inches, five inches and 10 inches, taking into account a vehicle's weight. Under current safety standards, a vehicle must support 1.5 times its weight.

The study concluded that the 2000-04 Nissan Xterra had one of the strongest roofs, withstanding a force of 2.93 times its weight for its 4-door model and 3.16 times its weight for its 2-door, at 5 inches of crush. The Jeep Grand Cherokee had the worst results, supporting 1.64 times the weight of its 4-door and 1.72 times the weight of its 2-door.

The study also analyzed about 23,000 real-world rollovers in accidents involving the same 11 vehicles across 12 states.

It concluded that at each measure of crush, there was a consistent relationship between roof strength and injury risk.

The study estimated that at 5 inches of crush, there was a 28 percent difference in the risk of injury between the Grand Cherokee and the Xterra, and at 2 inches the difference in predicted injury risk between the two vehicles was 51 percent.

It also estimated that raising the current federal roof crush standard from a 1.5 strength-to-weight ratio to a 2.5 ratio would "reduce the risk of serious and fatal injury in a rollover crash by 28 percent. Increasing roof strength requirements beyond 2.5 times vehicle weight would reduce injury risk even further."

Use in litigation

The primary use of the study in litigation is to bolster causation and dispute the "diving" defense – that an occupant in a rollover would have been injured by the downward force in a rollover even before a roof could have intruded on him or her.

Monty Lair, a plaintiffs' attorney at Brewster & DeAngelis in Tulsa, Okla., will be retrying a rollover case involving a Ford Explorer in June in which the trial judge overturned a $15 million jury verdict.

"Our position is this study will be helpful in retrial of the case," he said, noting that the defense argued at trial that there was no causal relationship between the roof crush and the death of the 18 year-old plaintiff. (Moody v. Ford, No. 03-CV-784E(C) (N.D. Okla.))

Piuze added that even if the study does not get in as evidence on direct, if a defense expert has read the study it will most likely get in on cross.

But defense lawyers will argue on cross that the study is flawed because it does not control for unbelted or ejected occupants, Cosgrove said.

He also said he would point to other studies that included the Xterra, which had the strongest roof in the new study, and found it had the same fatality rate as other vehicles.

"Why doesn't the Xterra have the best performance? The answer is that roof strength doesn't make a difference," Cosgrove said.

New proposed rule

A proposed change to NHTSA Standard 216 would require a roof to support 2.5 times the vehicle's weight, up from the current standard of 1.5 times the car's weight.

Consumer advocates say that the current standard is so old that most new cars already conform to 2.5 and that it should be raised even higher, to 3.5.

According to Paula Lawlor, a consultant on rollover accidents and plaintiffs' expert in Del Mar, Calif., stronger roofs also prevent injuries from partial ejection, something that government tests do not take into account.

"If the roof kept shape, the window would not be able to break and allow a head to go out the window," he said.

NHTSA also sought comments about upgrading its testing protocol, such as testing both sides of a vehicle, performing testing that simulates real world conditions or using dummies to test roof incursion on an occupant. Currently, tests are performed only on one side and use static testing that presses a metal plate against the vehicle.

The comments period ended March 29.

The proposed rule also included controversial language that suggested the new federal standard would preempt state tort claims.

However, Lair said that this provision would conflict with language in the enabling statute for NHTSA that says safety standards proposed by the agency should not preempt state common law.

Some senators have written to the agency expressing their concern over this issue.

But some attorneys said they would not be surprised if the preemption language remained in the final rule, and it was left to lawyers to challenge its constitutionality.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com