DETROIT/Southfield Michigan – After scouring junkyards for defective air bags, lawyers suing Takata Corp. asked a U.S. judge to order the Japanese company to preserve recalled components for independent testing because the parts are so hard to find.
Takata, based in Tokyo, has been taking air bags brought into dealers for recalls and sending them for testing in Japan, raising concerns about destruction of evidence, according to attorneys for Angelina Sujata, who sued the company this month.
Sujata said she was injured when the air bag in her Honda Civic ruptured, sending shrapnel at her chest. Honda Motor Co. has said it’s aware of three deaths and 52 injuries in the U.S. related to the defect and is reviewing two more possible deaths.
In a properly operating device, gas created by the charge in an inflator is released through holes in a metal canister to inflate the air bag. When the gas expands with too much force, it can cause the assembly to break apart and send shrapnel through the vehicle, injuring or killing occupants.
“The only way an independent party can find component parts to test is through a junkyard,” Kevin Dean, Sujata’s attorney, said in an interview. “You take the component parts apart to see what’s wrong.”
Sujata’s lawyers Friday asked U.S. District Judge J. Michelle Childs in Columbia, South Carolina, to require that inflators shipped to Japan be sent back to the U.S. “to ensure their preservation for later testing, under court supervision.”
They also asked the judge to order Takata and Honda to set aside and preserve 10 percent of all unruptured inflators removed through recalls.
The request follows an initial filing this month asking for the retention of evidence. Childs told the defendants Jan. 12 “to preserve the evidence until the court’s ruling in this case,” only to withdraw the order the following day citing “unintended consequences.”
Takata and Honda opposed the earlier mandate as unnecessary. Takata said it is preserving ruptured inflators retrieved from accidents and saving recalled inflators until a judge is appointed to handle all lawsuits over the flaw. Honda said there’s no threat of evidence being destroyed.
“The request in South Carolina is an effort by one set of lawyers in one case to decide an important testing issue that should be decided when all of the parties in all of the cases around the country can participate,” Jared Levy, a Takata spokesman, said in a statement Friday. “This will be possible in the near future when the federal air bag litigation is transferred to one judge.”
Sujata’s attorneys said in the filing that waiting for the cases to be centralized in one court might take too long, resulting in “substantial prejudice if relevant evidence is not preserved.”
The National Highway Traffic Safety Administration (NHTSA) asked Childs not to issue an order on evidence, citing the need for Takata to investigate the problem.
Lawyers for accident victims have been searching through junkyards for inflators to test how and why the components fail, Dean said. The attorney also represents the family of a woman who sued Takata last year, claiming she was killed when an air bag deployed with too much force. Dean also filed a request for a preservation order in that case Friday.
Three of the first eight inflators acquired and tested by Dean’s team ruptured, he said. One sent a chunk of shrapnel through the bag, toward where a driver’s neck or head would be, while the other two sent material toward the back of the steering wheel, according to Dean, a member of the Motley Rice law firm in Mount Pleasant, South Carolina.
“My source dried up this week,” Dean said. “Nobody can get them.” The salvage company he was buying inflators from rebuffed his attempt to purchase more, telling him they’re being sent to Takata, he said.
Examination of several unruptured inflators acquired by Dean’s team showed rust marks on the pellets used to trigger deployment of the bags and bulges in the metal canisters that contain propellant, indicative of a risk of failure, he said.
“There’s moisture in the canister and we don’t know where it’s getting in,” he said in an interview.
Sujata’s case follows a series of recalls of vehicles equipped with Takata air bags. The NHTSA has said the air bags’ inflators may malfunction if exposed to consistently high humidity, deploying with too much force and shooting metal pieces into drivers and passengers.
Toyota Motor Corp., Honda and eight other automakers have also called for the hiring of an independent testing company to review the inflators after Takata said last year in congressional hearings that it still doesn’t know the root cause of the defects.
“Takata has increased its capacity more than tenfold for testing inflators returned in the safety campaigns and is sharing its test results with NHTSA and the automakers on a regular basis,” Levy said in the statement.
Takata has nine pending cases over injuries or deaths allegedly connected to the flaw, a company attorney said at a hearing in federal court in Miami on Thursday. It has settled other claims, the attorney, David Bernick, told a panel of judges who are deciding on combining all lawsuits claiming their vehicles have lost value because of the recalls.
Attorneys on both sides agreed injury and death cases should be combined with the economic-loss cases for pretrial matters.
Takata last week asked Childs to delay all proceedings in Sujata’s case pending a ruling on the combined cases.
In a separate filing Friday, attorneys for plaintiffs in more than a dozen other lawsuits over air-bag failures urged Childs to issue a preservation order.
“The defendants have been aggressively moving forward with the acquisition of critical evidence and admittedly destroying some of this evidence in testing,” said attorneys A. Camden Lewis and Larry Coben, who represent consumers in Pennsylvania alleging lost vehicle value connected to the recalls.
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