The case involved 16-year-old Matthew Robles, who on December 4, 2004 sustained a leg injury while riding as a passenger in a 2004 Yamaha Rhino 660.  Mr. Robles turned 18 on January 28, 2006, and by Arizona law, had two-years to file his personal injury lawsuit.  Like most jurisdictions, Arizona has a “discovery rule” that tolls the statute of limitations “until the plaintiff knows, or within reasonable diligence, should know the facts underlying the cause for his injury.”

Mr. Robles claimed that he did not realize he might have a cause of action until the fall of 2009 when he saw a television commercial from the Goldberg & Osborne law firm soliciting potential clients injured in Rhino incidents.  Mr. Robles contacted Goldberg & Osborne and eventually filed his Complaint on August 11, 2010.

After a two day bench trial, the Court found for Yamaha, concluding that at the time of his incident, “sufficient facts existed for Plaintiff to determine that he might have had a case against Yamaha,” and that the Plaintiff “had a duty to timely investigate whether the design of the Yamaha Rhino may have been causally related to his injuries.”  Further, the Court stated that Plaintiff presented “no legitimate, justifiable, or equitable reasons for failing to investigate with due diligence.”  For these reasons, the Court found that Plaintiff failed to satisfy his burden that the statute of limitations was tolled, and that Yamaha was the prevailing party as the statute of limitations had run.

Yamaha’s lead counsel, Paul Cereghini, of the national product liability defense firm, Bowman and Brooke LLP, commented on the verdict:

“Anyone who is thinking about bringing a time barred claim should take note of this verdict.  This case didn’t make it past Yamaha’s statute of limitations defense.  All this plaintiff will see from this lawsuit is an adverse cost award that he should have to pay.

With this verdict, and with the Georgia Court of Appeals November 15, 2011 decision in the McTaggart v. Yamaha matter, Yamaha is now 10-0 in Rhino cases that have gone to trial.  This stellar record sends a clear message that Yamaha will aggressively and successfully defend these cases, whether they are time barred or not.  When they are time barred, like here, the plaintiff is really grasping at straws.”

Paul Lee, also of Bowman and Brooke LLP, who tried the case on behalf of Yamaha, said that:

“Plaintiffs have an affirmative duty to investigate, and not wait until plaintiffs’ lawyers start running TV advertisements.  The Court got it right when it found that Plaintiff’s ‘view that the cause of action does not accrue until the potential plaintiff knows or should know from the public domain that there is a possible defect of the product would render all such statutes of limitations virtually meaningless.’”

An ATV Action Plan is an agreement between CPSC and an ATV manufacturer, importer or distributor that describes actions that a company must carry out to promote ATV safety, including rider training and dissemination of safety information. An Action Plan also includes age recommendations and policies governing marketing, the sale of ATVs, and the monitoring of such sales. It is unlawful for an ATV manufacturer or distributor to import into or distribute in commerce any new assembled or unassembled ATV, unless the ATV is subject to a Commission-approved ATV Action Plan.

SunL Group was an importer and distributor of motorsports products, including gas and electric scooters, dirt bikes, ATVs and go-karts.

SunL Group obtained approval for its ATV Action Plan on August 7, 2009. Recently, CPSC staff obtained information that SunL Group was no longer in operation and could not fulfill the terms of its ATV Action Plan. The Commission terminated the Action Plan on March 29, 2011.

Now that SunL Group is out of business, the Firm can no longer provide a remedy as part of its 2008 recall of SunL Group SLA90 Youth ATVs.

CPSC advises consumers to immediately stop using the SunL Group SL A90 Youth ATV. This youth ATV lacks front brakes, a manual fuel shut-off, padding to cover the sharp edges on the handlebar assembly, and is sold without a tire pressure gauge or adequate flag pole bracket.

The risk with these ATVs is severe because these vehicles are intended for children. In many cases, youth riders are just learning how to operate an ATV and may not have the experience necessary to help them avoid hazards associated with this product’s defects. The defects could lead to young drivers losing control of the ATVs, which poses the risk of serious injuries or death.

Consumers who own other models of SunL ATVs should determine if the safety components identified above are present on their models before using the ATVs.

Name of Product: Suzuki KingQuad ATVs

Units: About 29,000

Manufacturer: Suzuki Manufacturing of America Corporation

Distributors: American Suzuki Motor Corp., of Brea, California; Montgomery Motors Ltd., of Honolulu, Hawaii; Suzuki del Caribe Inc., of Rio Piedras, Puerto Rico

Hazard: Some KingQuad ATV’s plastic fuel tanks were improperly manufactured and can develop a fuel leak, posing a fire hazard.

Incidents/Injuries: American Suzuki has received 19 reports of fuel leaking from the recalled ATVs. No injuries have been reported.

Description: This recall is for the following Suzuki KingQuad models: all 2008 to 2010 LT-A450X models, all 2009 to 2010 LT-A500X models, all 2008 to 2010 LT-A750X models and 2011 LT-A500X and LT-A750X models manufactured before December 11, 2010. The words “Suzuki KingQuad” are on the left and right sides of the fuel tank housing. Model numbers are on the left and right lower side panels above the footrests.

Sold at: Suzuki ATV dealers nationwide from July 2007 through February 2011 for between $6,600 and $9,500.

Manufactured in: United States

Remedy: Consumers should immediately stop using these vehicles and contact a local Suzuki ATV dealer to schedule an appointment for a free repair. Consumers with 2011 LT-A500X and LT-A750X models should call their local Suzuki ATV dealer to determine if their ATV is subject to this recall. Consumers with recalled ATVs are being sent a notice directly from Suzuki.

Consumer Contact: For more information, contact Suzuki at (800) 444-5077 between 8:30 a.m. and 4:45 p.m. PT Monday through Friday, or visit the firm’s website at www.suzukicycles.com

Manufactured in: United States
Remedy: Consumers should immediately stop using the recalled vehicles and contact their local Cub Cadet dealer to schedule a free repair. Cub Cadet is contacting all known consumers.

Consumer Contact: For more information, contact Cub Cadet toll-free at (888) 848-6038 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s website at www.cubcadet.com

For the fourth straight time in less than three months, a jury has returned a complete defense verdict in a trial involving the Yamaha Rhino off-road vehicle.  On Friday October 22, 2010, a Montgomery County, Alabama jury returned a 12 – 0 verdict for Yamaha in Jacklyn McMahon and Donald McMahon v. Yamaha Motor Corporation, U.S.A.; Yamaha Motor Manufacturing Corporation of America; and Yamaha Motor Company, Ltd., Circuit Court of Montgomery County, Alabama, Case No. CV-08-360, Judge Tracey McCooey presiding.  After three weeks of trial, the jury reached its unanimous defense verdict in well under an hour.

Plaintiff Jacklyn McMahon claimed that her 2007 Rhino 660 Special Edition offroad vehicle caused her July 26, 2007 crash in which she overturned her vehicle onto its side while she attempted to make a right turn.  Ms. McMahon, then age 47, sustained injuries to her arms and left leg. The plaintiff claimed that the Rhino lacked adequate stability and occupant crash protection and sought recovery of $374,000 in medical expenses, plus non-economic and punitive damages.  Yamaha defended its design and contended that the plaintiff caused her crash and injuries by driving aggressively and by failing to wear a seat belt and appropriate riding gear.

Both sides called expert witnesses on kinematics and vehicle handling, stability and crashworthiness.  Plaintiffs’ witnesses included design engineer Michael Burleson from Tyler, Texas (via videotaped deposition testimony); handling and stability engineer Micky Gilbert from Wheat Ridge, Colorado; biomechanic Dr. Michael Kleinberger from Clarksville, Maryland; and former CPSC employee William Kitzes of Boca Raton, Florida. Yamaha’s witnesses included engineer Kevin Breen from Fort Myers, Florida; biomechanic Dr. Ted Bain from San Antonio, Texas; biomechanic Dr. Robert Piziali from San Carlos, California; and vehicle design engineer Lee Carr from Houston, Texas.

Plaintiff was represented by Fred Levin, Aaron Watson, Cameron Stephenson and Virginia Buchanan of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. in Pensacola, Florida.  Yamaha was represented by De Martenson and David Brown of Huie, Fernambucq & Stewart LLP in Birmingham, Alabama.

The McMahon verdict follows three defense verdicts in Yamaha Rhino cases earlier this summer.  One of Yamaha’s lead counsel in defending the Rhino, Paul Cereghini (Bowman and Brooke LLP, Phoenix, Arizona), commented:

“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 crashworthiness.  Once again, a jury has unanimously rejected these claims and found in Yamaha’s favor. These verdicts are further proof that the Rhino is a safe and defect free vehicle and that Yamaha can, and will, aggressively and successfully defend this excellent product.”

Yamaha has now successfully tried Rhino cases to defense verdicts against the major plaintiff firms who filed multiple cases involving these vehicles.   Mr. Cereghini was Yamaha’s lead trial counsel in Richard B. Holt, Plaintiff vs. Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Co., Ltd. Superior Court of California, for the County of Orange – Civil Complex Center, Case No. 06CC11291, which ended in a unanimous defense verdict on July, 27, 2010.  Plaintiff’s trial counsel in Holt, Scott Nealey (Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, California) and Tony Klein (Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, LLP, Bakersfield, California) and defense counsel Paul Cereghini (Bowman and Brooke LLP, Phoenix, Arizona) are lead counsel in the California consolidated Rhino cases.  Their law firms also have leadership roles in the federal Rhino MDL.  On August 12, 2010, Yamaha received a unanimous defense verdict in Paul Mathis, Plaintiff v. Yamaha Motor Co., Ltd.; Yamaha Motor Corporation, U.S.A.; Yamaha Motor Manufacturing Corporation of America; and Tway’s Cycles, Inc., d/b/a Twin Cities Yamaha, Defendants, Circuit Court of Tallapoosa County, Alabama, Case No. CV-08-900003.  Plaintiff’s counsel in Mathis, Jason Shamblin, and his firm, Cory, Watson, Crowder & DeGaris, P.C., represent plaintiffs in numerous Rhino cases.  Similarly, plaintiff counsel in the McMahon case, Fred Levin and his firm Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A., represent plaintiffs in many other Rhino matters.

“All-Terrain Vehicles are inherently dangerous to children,” said Stephen M. Bowman, PhD, MHA, assistant professor with the Johns Hopkins Center for Injury Research and Policy and the report’s lead author. “While manufacturers are required to label vehicles with engine sizes greater than 90cc as inappropriate for children younger than sixteen, our data indicate that a growing number of children are receiving serious injuries due to ATV use, suggesting that parents are unaware of these recommendations or are choosing to ignore them.”

In 1988, the Consumer Product Safety Commission (CPSC) and representatives of the ATV industry entered into a decade-long consent decree to reduce the risk of injury associated with ATV use; provisions included a ban on the sale of three-wheeled ATVs, a free nationwide training program for all ATV purchasers, improved safety labeling and a public awareness campaign. This consent decree expired in 1998 and is only continued by some manufacturers on a voluntary basis. While previous studies have examined the impact of the expiration of the consent decree between the CPSC and the ATV industry immediately following its termination, this is the first study to examine whether rates of ATV-injury hospitalizations have continued to increase.

“Clearly, too many children are being injured on these vehicles,” said co-author, Mary E. Aitken, MD, MPH, professor of pediatrics with the University of Arkansas for Medical Sciences and director of the Injury Prevention Center at Arkansas Children’s Hospital. “Given the dramatic increases in hospitalization that we report, a renewed effort by the public health community, the ATV industry and the CPSC to address this problem is warranted.”

The researchers analyzed hospital discharge data from the Kid’s Inpatient Database (KID) of the Healthcare Cost and Utilization Project, which is sponsored by the Agency for Healthcare Research and Quality. Injury Severity Scores (ISS), a widely accepted measure of injury severity, were calculated for each hospitalization. Results showed that all types of injury (minor, moderate and major) increased over the study time period, with rates for hospitalizations with moderate to severe traumatic brain injury tripling during the study time period.

“In our study 30 percent of patients hospitalized for ATV-related injuries had a diagnosis of traumatic brain injury,” said Bowman. “Increasing helmet use through a combination of policy and education is critical to curbing the increasing trend in ATV-related hospitalizations among children.”

Support for this research came from the Arkansas Biosciences Institute.

In the first study to compare the severity of injuries sustained by motorcycle versus ATV riders, researchers from Johns Hopkins Center for Surgery Trials and Outcomes Research, Baltimore, MD, reviewed data on nearly 50,000 accident victims who received trauma care between 2002 and 2006.  Data were gathered from the National Trauma Data Bank of the American College of Surgeons on 13,749 patients who had an off-road motorcycle accident and 44,509 patients who had an accident involving an ATV.  Although the initial degree of severity of the injuries was similar for both groups, ATV riders were 50 percent more likely to die.  These patients also were 50 percent more likely to require admission to an intensive care unit and need mechanical ventilation.

The difference in morbidity and mortality is not solely related to helmet use.  About 60 percent of motorcyclists in the study wore helmets compared with only 30 percent of ATV riders.  ”But even when both types of patients were wearing helmets, the person on the ATV did much worse than the person on the motorcycle,” said trauma surgeon Adil Haider, MD, MPH, FACS, who is an assistant professor of surgery at Johns Hopkins School of Medicine.

The underlying cause is still unclear.  ”We can’t tell why [ATV riders are more at risk than motorcyclists] from this database.  We think there are much more energy transfers when an ATV turns over, but we can’t tell whether that is because of the stability of the vehicle or the weight of the vehicle as it rolls over on a rider,” Dr. Haider explained.

Findings from the study nevertheless carry messages for parents, legislators, and educators as well as ATV dealers and manufacturers.  ATVs may be suitable for teenagers or older children, but they are not appropriate for youngsters, the researchers believe.

“Parents may think that ATVs are less dangerous than motorcycles because they have four wheels.  But they should know that ATVs not only are not safer, they are probably more dangerous because the injuries people have after accidents are so severe,” Dr. Haider said.

There has been a considerable amount of legislation advocating helmet use by motor-cycle riders.  However, little advocacy work has been done to require helmet use by ATV riders.  At the present time, only a few states have laws mandating the use of safety helmets by all riders of off-road motor vehicles.  ”One of the questions we have to think about is whether legislation is an avenue to pursue to make these activities a little bit safer,” said Cassandra V. Villegas, a medical student and trauma outcomes fellow with Dr. Haider who is the lead author on this study.

There is also an educational component to the overall message from this study.  ”We may want to stress the need for education about how to choose the motor vehicle that is best for a particular rider,” said Ms. Villegas.

ATV dealers often try to sell parents on larger vehicles their children will grow into, public health scientist Stephen Bowman, PhD, from the Johns Hopkins Center for Injury Research and Policy and who is a co-investigator on this study, explains.  ”You go to a dealer and say, ‘I want to buy my nine-year-old a small ATV.’  But the dealer will try to sell you an ATV big enough for a 13-year-old.  The problem is that smaller children end up using ATVs that have a lot of power and a significant amount of weight that could cause more serious injuries if they have an accident.”

Manufacturers of motorcycles have made significant improvements in safety technology that could be applied to ATVs.  ”We think there could be more safety technology development for the ATV population,” Villegas said.  ”There are pneumatic air devices that inflate on impact. These devices could be embedded in ATVs,” she added.

Results from the study reflect the clinical experience of trauma surgeons in the field.

“We know that ATV use is rising in the U.S.  We also know that injuries are increasing in this population.  We’re seeing more injuries, and we’re also seeing much more serious injuries in patients who are riding off-road ATVs,” Dr. Haider said.

“While there has been a lot of information about motorcycle use and safety profiles, the dangers of motorcycle riding, and the ways to prevent injuries, there is not enough information about off-road vehicles and ATVs.  Our study may help people who are trying to figure out what is the safer mode of transportation with regard to off-road motor sports and encourage policy makers and politicians to look at this growing problem carefully,” Ms.Villegas said.

“This study shows there is a burden of disease related to ATV injuries.  This burden might be reduced through either legislative initiatives or improved engineering and does provide the impetus for looking at what can be done to reduce injuries following ATV incidents,” observed Avery B. Nathens, MD, PhD, FACS, who is the Canada research chair in systems of trauma care, division head of general surgery, and director of trauma, St. Michael‘s Hospital, Toronto, ON.  Dr. Nathens also Chairs the National Trauma Data Bank Subcommittee of the ACS Committee on Trauma.

Eric B. Schneider, PhD; Elliot R. Haut, MD, FACS; Kent A. Stevens, MD, MPH; and David T. Efron, MD, also participated in the study.  The researchers evaluated data from the National Trauma Data Bank (NTDB) of the American College of Surgeons, Version 7.1, for admission years 2002-2006.

SOURCE American College of Surgeons

The following product safety recall was voluntarily conducted by the firm in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Suzuki QuadSport ATVs

Units: About 1,355

Distributors: American Suzuki Motor Corp., of Brea, California; Montgomery Motors, Ltd., of Honolulu, Hawaii; Suzuki del Caribe Inc., of Rio Piedras, Puerto Rico

Hazard: The flame arrester screen can become detached from its mounting ring, preventing the throttle valve from returning to the idle position when the throttle lever is released and causing the rider to lose control of the ATV. This poses a serious hazard of injury or death.

Incidents/Injuries: American Suzuki has received two reports of flame arrester screens detaching from the mounting ring. No injuries have been reported.

Description: This recall involves all Suzuki 2009 model year LT-Z400K9 (QuadSport Z400) and LT-Z400ZK9 (QuadSport Z400 Special Edition) ATVs. “QuadSport Z400″ or “QuadSport Z400Z” is written on the sides and left front fender of the ATV. “Suzuki” is written on the sides of the ATV.

Sold at: Suzuki ATV dealers nationwide from September 2008 through June 2010 for between $6,500 and $6,700.

Manufactured in: Japan

Remedy: Consumers should stop using these vehicles immediately and contact a local Suzuki ATV dealer to schedule an appointment for a free repair. Consumers with recalled ATVs are being sent a notice directly from Suzuki.

Consumer Contact: For more information, consumers can contact Suzuki at (800) 444-5077 between 8:30 a.m. and 4:45 p.m. PT Monday through Friday, or visit the firm’s website at www.suzukicycles.com

CPSC data indicates that ATV-related deaths jump on average 30 percent from March to April for children younger than 16 years of age. Adult deaths increase 88 percent on average for the same timeframe. During 2003-2005, ATV-related deaths rose each month during the spring and into the summer, peaking in July, when 23 children and 76 adults were killed in ATV-related incidents on average.

“If springtime deaths and injuries are an indication of what’s to come, we urge all ATV riders, young and old, to take all necessary safety precautions,” said CPSC Chairman Inez Tenenbaum. “Far too many people are losing their lives and sustaining life-threatening injuries, which in many cases are preventable. CPSC is working diligently to ensure that the ATVs on the market meet mandatory standards and to promote safe riding practices.”

In April 2009, as a part of the requirements for a CPSC approved action plan for ATV manufacturers and distributors, it became mandatory for these companies to offer free, hands-on training through their dealers to first-time purchasers and age appropriate members of their immediate families within a reasonable time from purchase.

Moreover, as another element of approving ATV action plans CPSC requires companies to also offer first-time purchasers an incentive valued at $100 for taking the hands-on training offered by the ATV Safety Institute (ASI). ASI also offers online training for experienced ATV riders.

Many ATV-related deaths and injuries are preventable. CPSC encourages all ATV riders, young and old, to make this riding season safer by following the basic rules of the trail:

• Take a hands-on safety training course
• Always wear protective gear – especially a helmet – when riding ATVs
• Do not ride or drive a single-rider ATV with a passenger or ride as a passenger
• Do not drive ATVs on paved roads
• Do not permit children younger than 16 to drive or ride adult ATVs. Always choose an age-appropriate ATV for your child

Recreational off-highway vehicles (ROVs), also known as side-by-sides, have grown in popularity in recent years, and CPSC wants riders and passengers to know that they are different from ATVs. Unlike ATVs, ROVs have a steering wheel, bench or bucket seats, seatbelts, foot controls and a roll cage. They, too, are associated with a number of fatalities and injuries every year.

Keep safety first when using both off road vehicle types. To learn more, visit ATVSafety.gov. 

Police said that Mark E. Lafoon Jr., 18, of the 13200 Block of Balta Terrace, was traveling on Beach Road when he struck a deer and lost control of his 2003 Suzuki all terrain vehicle. Lafoon and his passenger were thrown from the vehicle as it overturned. Lafoon was transported to St. Francis Hospital where he died from his injuries. His passenger, an adult, was transported to the VCU Medical Center with non-life-threatening injuries.

via County of Chesterfield, VA