Yamaha Rhino (Credit: CBS News)

Yamaha Motors once again stands undefeated in court battles over injuries and deaths in crashes of its Rhino off-road vehicles.

In a unanimous ruling, the Georgia Court of Appeals reversed a May, 2010 jury verdict favoring a rider who suffered a serious leg injury when his Rhino rolled over on top of him. Prior to Tuesday’s appeal decision, the $317,000 damage award to Roger McTaggart, a gravedigger from Blue Ridge, Ga., had been the only blemish on Yamaha’s record through nine courtroom trials.

But the appeals court declared that Taggart had assumed the risk of injuries when he bought his Rhino 660 in 2006. Further, the panel said the trial judge should have directed a verdict in Yamaha’s favor, rather than let the jury decide the case

Yamaha said in a prepared statement that the ruling confirmed that the Rhino “is a safe and useful off-road vehicle when driven responsibly.”

“We don’t agree with it, obviously,” said Andy Childers, a lawyer for McTaggart. “We think it was incorrect.” Childers said he will file a motion for reconsideration and, if that fails, seek review by the Georgia Supreme Court.

Yamaha has paid confidential settlements in hundreds of other Rhino cases, so the company’s trial record is not the whole story. However, the string of defense verdicts has tamped down the size of settlements, say people close to the litigation.

Introduced in the fall of 2003, the Rhino quickly became the top seller in a new category of off-road machines called ROVs (recreational off-highway vehicles), which differ from all-terrain vehicles, or ATVs, by including such features as safety belts and seating for two.

But as FairWarning has reported, within weeks of the Rhino’s launch, Yamaha began receiving the first reports of gruesome injuries—including mashed heads, arms and legs, as well as amputations, when the 1,100-pound vehicles tipped and landed on riders.

The company was hit by an avalanche of lawsuits, contending that the Rhino was defective due to a propensity to roll over at low speeds and on relatively flat ground, and inadequate protection to keep arms and legs from being crushed when the vehicles tipped. Yamaha has consistently maintained that the Rhino was safe and well-designed, and that injuries stemmed from riders failing to heed warnings or trying risky stunts.

But under pressure from litigation and the federal Consumer Product Safety Commission, the company tweaked the design. Since 2007, it has included doors on new Rhinos to keep legs and feet inside in rollovers. And in March, 2009, it launched what it called “a free repair program” to retrofit Rhinos by removing the sway bar, installing spacers on rear axles to widen the stance, and putting doors on Rhinos that did not already have them.

At the peak of Rhino litigation in 2010, Yamaha faced 1,100 pending lawsuits and claims, a number that had dwindled by last month to 187, says Law360, an online legal news publication. A Yamaha spokesman on Wednesday declined to say how many settlements the company has paid.

CORRECTION: A previous version of this story gave an incorrect figure for the size of the damage award reversed on appeal. The verdict was for $317,000, not $347,000.

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But the reason why so many kids are killed or badly hurt has been fuzzy. For instance, is it because young riders take too many chances?

Now a team of emergency room doctors and medical researchers from Illinois has pointed to a cause. In a study published in Neurosurg Focus, the team concluded that size matters: young riders all too often aren’t big enough or strong enough to control an ATV designed for an adult.

The researchers performed tests with two ATVs, a Polaris Trailblazer 250 sport model and a Honda FourTrax 250 utility model. They studied riders of varying heights, weights and arm lengths during three maneuvers linked to crashes.

The researchers’ concluded that lighter riders often are more easily ejected, and that riders with shorter arms are less able to maintain an ATV’s stability to prevent rollovers.

The study concluded that lighter riders with “small wingspans” — in other words, children and others of small stature — “are under considerable risk of injury when operating an ATV due to lateral, longitudinal, and vertical operational instability.”

ATVs, as the study said, typically weigh 300 to 600 pounds and can travel up to 75 miles per hour.

However, as motor vehicle safety specialists  Safety Research & Strategies Inc. noted in their review of the study, regulations for child ATV riders are limited. The company noted that Massachusetts in July, 2010 became the first state in the nation to ban children under age 14 from riding ATVs, unless they are participating in an organized race or an event supervised by someone 18 years or older. Still, Safety Research & Strategies said the state “has done little” to enforce or publicize that or other provisions of the law.

At the federal level, the U.S. Consumer Product Safety Commission requires manufacturers to take steps to stop their dealers from marketing adult-size ATVs to children.

Senior officials of the Specialty Vehicle Institute of America, an industry group that deals with safety issues and operates the All-Terrain Vehicle Safety Institute, could not be reached for comment on the study. A representative of the institute, however, said it puts a high priority on rider safety and is well aware of the issues involving young riders.

The Illinois researchers cited Consumer Product Safety Commission research reflecting the rising toll taken by ATVs. The research showed that, among other things, the number of ATV riders climbed 36 percent from 1997 to 2001 but the number of injuries treated in hospital emergency rooms leaped 109 percent.

ROBERT T. NELSON

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In a 9-to-3 decision, the jury rejected the claims of Daniel Swainston, 59, of Bakersfield, who suffered a crushed leg in the crash of his Rhino in 2006.

Though Yamaha has faced about 700 defective product lawsuits stemming from injuries and deaths in Rhino accidents, the company is on a roll in the courtroom. Monday’s verdict marked its sixth straight favorable verdict and seventh in eight trials overall.

The win could prove especially discouraging to plaintiffs because the case was seen as something of a bellwether. It involved the most common Rhino injury scenario—a rollover in which the victim’s leg or foot comes through the open door space and is smashed between the 1,100-pound vehicle and the ground. Plaintiffs lawyers have claimed the Rhino is defective due to an unusual propensity to tip over and inadequate protection to prevent arms and legs from being crushed.

But in a victory statement, Yamaha said the verdict “showed that this unfortunate incident had nothing to do with the design of the product.  The incident underscores the importance of following the safety recommendations on our products and in the owner’s manual, and to always operate the products in a safe and responsible manner.”

Neither Swainston nor his attorney, Gary Praglin, would comment.

Prior to Monday’s verdict, Yamaha’s victories included an Ohio case in which jurors found the Rhino was defective but did not hold the company liable. The suit was filed by parents of 10-year-old Ellie Sand, who died of head injuries when a Rhino tipped over at a church picnic. In its March 21 verdict, the jury ruled that the Rhino was defectively designed, but that the fatal accident was caused by the driver carrying several passengers, contrary to safety instruction.

A Wall Street Journal editorial trumpeted Yamaha’s success. “Maybe resistance to the plaintiffs bar isn’t futile,’’ it said. “A belief in one’s products is a company’s best defense, and more companies would benefit from fighting back.’’

Yamaha’s lone defeat resulted in a $317,000 damage award in Georgia.

Trial verdicts haven’t been the whole story, however. More than 100 cases have been settled out of court, according to one estimate, allowing Yamaha to avoid trying some of the more threatening cases and letting plaintiff lawyers cut their losses on the weaker ones.  Trial outcomes can greatly affect the size of settlements, and the Swainston verdict could send more plaintiff attorneys toward the exits.

Japan-based Yamaha, which produces motorcycles, boats and snowmobiles along with off-road vehicles, had sales of nearly $15.5 billion in 2010. The lawsuits also name subsidiaries Yamaha Motor Corp. USA, of  Cypress, Calif., which markets the Rhino, and Yamaha Motor Manufacturing Corp. in Newnan, Ga., where the vehicles are made.

Introduced in the fall of 2003, the Rhino quickly became the top seller in a new category of off-road machines. Resembling an amped-up version of a golf cart,  Rhinos and its rival are known as ROVs (recreational off-highway vehicles) or “side-by-sides’’ because, unlike all-terrain vehicles, they have a seat for a passenger. More than 150,000 Rhinos have been sold.

Within weeks of the Rhino hitting the market, Yamaha began receiving the first reports of gruesome injuries—including mashed heads, arms and legs, as well as amputations, when Rhinos tipped and landed on riders.

In 2008, the Consumer Product Safety Commission opened an investigation focused in part on whether Yamaha had met a requirement to promptly inform the agency about a product that is defective or poses an unreasonable risk of serious injury or death. Companies can face substantial penalties for failing to comply.

The commission took the unusual step of issuing a subpoena for Yamaha records. In response, Yamaha provided a hard drive with some 58,000 documents, along with 62 DVDs.

Though Yamaha and commission officials have refused to give details, there are signs the agency’s probe is winding down. According to a February court filing in the Ohio case, CPSC lawyers have asked Yamaha to enter into settlement negotiations to resolve possible violations of the notice requirement. A Yamaha spokesman declined comment.

Yamaha representatives say the company has cooperated fully with the commission, and that there were no defects to report.

Even so, Yamaha made doors standard equipment on new Rhinos in 2007 to keep feet and legs inside in rollovers. Under pressure from the commission, Yamaha also announced a “free repair program’’ in March, 2009, a recall in all but name.

The safety improvements include removing the sway bar and installing spacers on rear axles of Rhinos to widen their stance and increase stability, and putting protective doors on Rhinos that don’t already have them.  Through December, 2010, rear spacers had been put on about 48,000 Rhinos, according to records.

The repairs notwithstanding, the company continues to defend the Rhino’s original design, claiming that it has been used safely by more than 99 percent of owners. It insists that injuries invariably stem from riders failing to follow safety warnings or attempting risky stunts.

Swainston was injured on a trail ride in the Sequoia National Forest in September, 2006–his first spin on the Rhino 660 that he purchased a few days before. He was a passenger and his 14-year-old son Spencer was driving when the Rhino flipped and landed on his right leg, resulting in fractures and a degloving, in which a large swath of the skin of his leg was torn off. He had multiple surgeries and racked up more than $190,000 in medical bills.

Swainston testified during the three-month trial that the accident left his leg barely attached and put him at risk of bleeding to death.

“Spencer had put my belt around my leg to try and stop the bleeding, and I could see the terror in his eyes,” Swainston testified.

“I absolutely wanted to stay conscious. I did not want to go out and have him dealing with that. So I talked with him as much as I could,” Swainston said. “Talked about our family, talked about what I thought of him, kind of all the things you want to make sure you say if…you’re not going to make it. Important things.’’ Eventually, he was rescued by helicopter.

Yamaha lawyers said the Rhino flipped because Spencer made an unusually sharp turn. They blamed Swainston for letting his son drive, noting that the owner’s manual “recommended” that drivers be 16 and older. They also claimed that Swainston wasn’t wearing his seat belt, contrary to his assertions.

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A 12-member jury in Montgomery County, Ala., unanimously cleared Yamaha of responsibility for injuries sustained by Jacklyn McMahon when her Rhino rolled over in July, 2007.  McMahon, then 47, suffered two broken arms and a serious foot injury when the 1,100-pound vehicle landed on top of her. Her lawsuit claimed the Rhino was dangerously unstable.

Yamaha defended the Rhino’s design and blamed the accident on aggressive driving and McMahon’s failure to wear a seat belt. The jury’s verdict, which capped a three-week trial, was returned Friday.

“The jury’s unanimous defense verdict in the McMahon trial again demonstrates that juries are not buying plaintiffs’ allegations about the Rhino’s handling, stability and crash-worthiness,” Paul Cereghini, a lawyer for Yamaha, said in a statement. “These verdicts are further proof that the Rhino is a safe and defect-free vehicle.”

Kim Lambert, one of the lawyers for McMahon, called the verdict disappointing and said that no decision had been made on whether to appeal.

Six Rhino cases have now been tried to verdicts, with Yamaha victorious in all but one. However, as FairWarning reported last month, the Japanese company and its top American subsidiaries, Yamaha Motor Corp. USA and Yamaha Motor Manufacturing Corp. of America, still face about 700 lawsuits stemming from deaths and injuries in Yamaha rollovers. More than 40 other cases have been settled on confidential terms.

Introduced in the fall of 2003, the Rhino pioneered a new category of off-road vehicles known as ROVs (recreational off-highway vehicles), or side-by-sides, because they have seating for two.

In March, 2009, under pressure from the Consumer Product Safety Commission, Yamaha announced a what it called a free repair program allowing owners to bring in their Rhinos for safety improvements.

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The move by the agency, after eight years of lethargy under the Bush Administration, was widely viewed as a sign of its revival as a vigorous safety regulator.

Nearly 19 months later, however, the commission is refusing to disclose whether its actions in the Rhino case had the intended effect. It has turned down a request under the Freedom of Information Act to reveal how many Rhino owners have taken advantage of the free repairs.

In a letter denying FairWarning’s Freedom of Information request, the commission said it was withholding the data under a duty to protect “trade secrets and confidential commercial information…whose disclosure could give a substantial commercial advantage to a competitor.”

Why the number of Rhino owners getting the repairs might be a trade secret was not explained. A Yamaha spokesman would not discuss the matter. At the safety commission, spokesman Scott Wolfson said the Rhino case is still open, and “there are elements of the case that may not be disclosed at a given time.”

Yamaha submits periodic reports to the commission on the number of Rhinos brought for retrofitting. By law, before releasing data submitted by companies, the agency must notify them and weigh any confidentiality claims they raise. However, the companies can’t veto the disclosure, and the agency must decide if their claims are valid.

“It’s hard to believe that the intent of the Freedom of Information law has been fulfilled in this case,” remarked Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. “Does Yamaha have a legitimate interest in protecting the information,” he asked, “or are they simply trying to stifle a story that does not reflect well on them?”

Moreover, he said, if the data show that relatively few Rhino owners responded, it would indicate that the action “did not achieve its intended result.”

Dropping the term “recall” was a concession by the agency to get Yamaha to act. At the time, however, agency officials expressed concern that failing to describe the action as a recall — a term that resonates with consumers and news organizations — might result in a weak response.

Manufacturers would rather use another name, but “from the consumer advocacy perspective, I’d rather things be called a recall because consumers know that term,” said Rachel Weintraub, senior counsel for the Consumer Federation of America.

Yamaha’s steadfast insistence that the Rhino is perfectly safe might also lead owners to dismiss the need for the repairs. The stance is crucial to the company’s defense of at least 700 lawsuits, most stemming from serious injuries and deaths when Rhinos tipped over, crushing riders’ feet, limbs or heads under the 1,100-pound machines.

Yamaha has claimed the Rhino is well-designed, with an array of safety features including seatbelts and and a roll cage. The company has blamed accidents on operators engaging in risky stunts or failing to heed warnings, such as the need to wear a helmet and to limit operation to drivers at least 16 years old.

As FairWarning reported last month, Yamaha has won four of five Rhino cases that have been tried to jury verdicts. It has quietly settled at least 40 other cases. Bolstering the plaintiffs’ claims is the commission’s finding that many rollovers appeared to involve turns at relatively low speeds on level ground.

Wolfson of the safety commission said that from the perspective of its chairman Inez Tenenbaum, the March, 2009, Yamaha announcement “was a recall.” Moreover, Wolfson said, “We do continue to urge all owners of the Rhino who have not taken advantage of the repair program to do so immediately.”

The free repairs include putting spacers on the rear axle to widen the Rhino’s stance, and installing doors on vehicles that do not already have them. In addition, Yamaha has offered a $100 coupon towards purchase of a helmet for owners who watch a safety video.

Introduced in late 2003, the Rhino was a trail-blazer in more ways than one, creating a new category of off-road machines known as ROVs (recreational off-highway vehicles) or side-by-sides — because unlike all-terrain vehicles they have seats for two. Rhino sales have topped 150,000, and several rival models have also achieved high sales.

The safety commission is conducting handling tests of the Rhino and other leading models as part of an effort to draft federal regulations for ROVs. Through July of this year, the commission said it had received reports of 152 deaths in ROV crashes — 70 involving the Rhino and 82 with other models.

New research by a Johns Hopkins University team found that victims of  ATV crashes were 50 percent more likely to die of their injuries than people in off-road motorcycle crashes.

The researchers also found that ATV accident victims were 55 percent more likely to wind up in a hospital’s intensive-care unit, and 42 percent more likely to be placed on a ventilator than dirt bike victims.

To carry out the study, the study’s authors compared data from the National Trauma Data Bank on nearly 60,000 patients suffering injuries from ATV and off-road motorcycle accidents between 2002 and 2006. The research was presented last week at the American College of Surgeons’ 2010 Clinical Congress in Washington, D.C.

Researchers said it’s unclear why ATV crashes are more deadly. Statistics show that 60 percent of injured motorcyclists were wearing helmets compared to 30 percent of injured ATV riders, but researchers said helmet use doesn’t fully account for the differences. Even when riders of both types of vehicles were wearing helmets, ATV riders had more serious injuries, Cassandra Villegas, one of the researchers, said in a news release.

Other factors, the authors said, include the relatively heavy weight of an ATV, which could crush a fallen rider. ATVs typically weigh more than 600 pounds, and manufacturers have successfully resisted a stability standard that could reduce the number of rollovers, Fair Warning reported in March.

The ATV Safety Institute of the Specialty Vehicle Institute of America, an off-road vehicle industry group, told FairWarning that it hadn’t reviewed the study and therefore couldn’t comment directly on its findings.

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