November 18, 2002

Air Bag Lawsuits Blame Nissan for Eye Injuries

Safety groups, alleged victims say the passenger-side bags in certain Altimas have caused blindness in minor crashes. The automaker denies a defect.

By Myron Levin, L.A. Times Staff Writer

Ali Warsome is blind. This is how it happened:

In April, he was riding in a car that hit a divider on a roadway in Washington, D.C. It wasn't much of a wreck; the '94 Nissan Altima didn't even need a tow.

But the air bag struck his face with such force that Warsome's battered left eye had to be removed. Surgeons were unable to restore the vision in his right eye because "the retina was completely shredded," according to his medical records.

"I cannot see the sky anymore," said Warsome, 74, a Somali immigrant, speaking through an interpreter. "I cannot cook, I cannot walk, I cannot help my grandchildren.... I don't know what to do."

To do their job properly, air bags must inflate at lightning speed, so there always is a chance they can cause an injury. But safety groups and alleged victims say the passenger-side air bags in certain Altimas -- the 1994 and early '95 models -- can inflict a terrible sort of damage.

They say the air bags are responsible for at least 40 cases of severe eye injury, including permanent blindness in one or both eyes in some instances. Often, these injuries to passengers have occurred in crashes so minor that the drivers of the cars were unharmed.

Nissan staunchly denies that the air bags are defective, saying the frequency and severity of eye injuries from them are similar to those in other cars. "We know it's a high-quality bag ... and performs well in the field," said Scott Vazin, a spokesman for Torrance-based Nissan North America Inc.

But consumer groups are pressing the matter hard. "People should not lose their vision because a driver hits a curb or has a fender-bender," said Joan Claybrook, president of Public Citizen, which has demanded a recall.

Added Clarence Ditlow, who heads the Center for Auto Safety, a consumer group based in Washington: "I've never seen a defect like this, which has such a singular injury mode -- which is physically blinding someone."

The air bags are the focus of a long-running investigation by the National Highway Traffic Safety Administration, which could demand a recall of nearly 200,000 cars if it finds they are defective.

Lawrence Baron, a Portland, Ore., lawyer who has sued Nissan on behalf of more than a dozen alleged victims, contends that videos obtained from Nissan during legal discovery reveal the unusual danger the air bags pose.

Baron said that unlike most air bags that unfold laterally in a pillow-like shape, the Altima air bags in question deploy rearward like a fist into the passenger area. He and others have compared the effect to that of a boxing glove thudding into a passenger's face at close to 160 mph.

Nissan switched to a new air bag design midway through the '95 model year. Consumer groups say this was a quiet decision to scrap an air bag the company knew was unsafe.

But Bob Yakushi, Nissan's senior manager of auto safety engineering, said the design change had long been in the works and was not prompted by safety concerns. As for the boxing-glove comparison, Yakushi said the air bag "deployment pattern" in the early models is similar to that in some other vehicles.

"You can't just look at shape [of the air bag] and come to the conclusion that that's the cause of the injury," he said.

Clouding the debate is the lack of thorough, widely accepted data on rates of air bag-related injuries in various models of cars and trucks. However, information gathered by NHTSA in the investigation does suggest that Altimas are different.

The agency asked Nissan and 12 other manufacturers to disclose the number of reports of eye or facial injuries from passenger-side air bags. There were 75 such reports involving the nearly 249,000 Altimas produced in '94 and early '95. There were 57 complaints for about 3.5 million vehicles produced by other manufacturers. For each 100,000 vehicles, there were 30 reports of Altima injuries and 1.5 for the other vehicles -- a ratio of 20 to 1.

But in a case of dueling statistics, Nissan has cited a New York state database that it says shows the Altima with an above-average record of avoiding air bag injuries to the face and eyes. Opponents contend that the New York data are too vague and incomplete to allow useful comparisons.

NHTSA began investigating the air bags in March 2001. The length of the probe may be due to the complexity of the case and the agency's big workload. But impatient safety advocates charge that the case also has been prolonged by the role of former agency officials in defending the air bags.

Erika Z. Jones, NHTSA's top lawyer from 1985 to '89, has represented Nissan in the defect probe. Paul Jackson Rice, who followed Jones as NHTSA chief counsel, has weighed in on behalf of the air bag supplier, Takata-Gerico Inc.

Said Ditlow of the Center for Auto Safety: "I have never seen an investigation where you have two former chief counsels working to block a recall."

Jones said in an interview Friday that there are "strict rules governing the conduct of former government employees working on matters at their former agencies, and I have always complied with the letter and spirit of those rules." Moreover, she said, officials at NHTSA "are neutral and objective and are unlikely to be unduly influenced by the fact of my participation."

On Friday, the Center for Auto Safety filed a lawsuit against NHTSA, accusing it of violating the federal Freedom of Information Act. According to the lawsuit, the agency has failed to respond to repeated requests for details of a private meeting this June between Jones and other Nissan representatives and NHTSA staff.

NHTSA officials have declined to discuss the investigation, and spokesman Tim Hurd said Friday that the agency had not seen the lawsuit and could not comment. Jones also declined to comment on the suit.

Over the years, air bags have saved 9,325 lives, according to a NHTSA estimate. But 215 people have been killed since 1990 as a result of air bags inflating in low-severity frontal crashes. Most were children or small adults, and most were riding without seat belts -- so their heads or chests were far forward as the air bag began to inflate.

"It's a wonderful technology, but as with any sophisticated technology -- particularly one that introduces energy into a vehicle -- you have to be very careful about how you balance the protective benefits against the potential to harm people," said Susan Ferguson, vice president for research at the Insurance Institute for Highway Safety.

Although the number of air bags continues to grow, casualty figures have dropped sharply. There were 103 air bag fatalities in 1997-98, but only eight last year. Experts credit design changes in 1998 and later models that made air bags inflate with less force. Another factor has been the success of educational efforts aimed at keeping children out of front passenger seats.

Even so, more than 1.2 million vehicles have been recalled this year because of air bag-related defects -- typically involving bags that inflate when they shouldn't or don't inflate when they should. NHTSA is involved in several other air bag investigations, in addition to the Nissan probe, involving various makes and models.

As for Nissan, it has been sued by at least 30 people claiming severe eye injuries from the Altima air bag. The company is believed to have settled most of the cases but won't say how many.

Among those settling was Norma Brainerd, the victim of an air bag injury in a low-speed crash of an Altima in December 1995.

She was en route to the Oregon coast when the '94 Altima in which she was riding struck the curb on a highway overlook. Brainerd, who was wearing her seat belt, said she recalled intense pressure on her face and everything going black.

The air bag broke Brainerd's nose. For several days, she was completely blind. Brainerd was a single mother with two young children, and in addition to the physical pain was the terror of wondering how she would make a living.

Although her condition improved over time, she remains legally blind in her left eye, has impaired vision in the right and still suffers severe headaches.

Brainerd said in an interview that although her lawsuit was settled, "to me, it's a public awareness issue at this point.... If I'm supposed to be here for a purpose, making a difference, I kind of want to be able to do that."

"I just hate that it's still out there," she said of the Altima air bag. "That's the part that just makes me very angry."

The lights went out for Ali Warsome on April 28 on a trip from his home in Falls Church, Va., to Washington.

The driver, one of Warsome's sons, was attempting a sudden lane change when his Altima struck the barrier. The air bag inflated, and Warsome has lived in darkness ever since.

In June, his lawyers filed a lawsuit in federal court in Washington accusing Nissan of "outrageous indifference" to the risk posed by the air bags. "No other vehicle has a track record of blinding so many passengers due to a deployment of air bags," the lawsuit stated.

Rather than recall the vehicles, Nissan has sought to hide the dangers, "hoping that as time passes and the vehicles come off the roads, the blinding of innocent victims will silently go away," the complaint said. "Nissan's plan to deal with these incidents is to settle every claim made against it."

In its answer to the lawsuit, Nissan denied wrongdoing and said it was not responsible for the injury.

Abdirizak Kulmie, one of Warsome's sons, said his father had been an extremely active man who enjoyed regular meetings with other Somali emigres at a local coffeehouse. Kulmie, who said he had polio as a child, recalled how he relied on his father's help to steady him when he walked.

Now, he said, Warsome is a shut-in who mopes about the house. Kulmie remembered the day of his father's unsuccessful surgery, a last-ditch attempt to restore his vision. Warsome asked if he would ever see again. "But the doctor said, 'There's no hope,' " Kulmie recounted.

"My father ... was crying, and I was crying," Kulmie said.

"I tried to calm down my father. I told my father I'm handicapped too."

Lawrence Baron is a Portland air bag lawyer. Click here for details about his work with Nissan air bag injury victims.