Law360, New York (December 11, 2008) - As the U.S. Consumer Product Safety Commission considers new standards for Yamaha Motor Corp. USA's Rhino off-road vehicle and other currently unregulated "utility terrain vehicles," plaintiffs suing over injuries they blame on the Rhino have asked the Judicial Panel on Multidistrict Litigation to centralize their cases.
The Rhino has caught the attention of the CPSC, a spokeswoman for the commission told Law360 on Thursday.
"We can confirm that the CPSC is investigating the Yamaha Rhino. There have been a number of incidents and that is a product we are looking into right now," CPSC spokeswoman Sonia Hayes-Pleasant said.
Three-wheel all-terrain vehicles were banned in September, and mandatory standards for other ATVs will go into effect in April 2009 as a result of the Consumer Product Safety Improvement Act of 2008. But since the Rhino is classified as a UTV - as opposed to an ATV - those standards won't apply to it.
"There are no regulatory standards for this new breed of off-road vehicles. They are not subject to the ATV standards because of their inherent design differences," Hayes-Pleasant said.
Some of the design differences at issue include the UTVs having bench seats, while ATVs have saddle seats, and UTVs having steering wheels, while ATVs have handlebars, she added.
"We're looking at creating some standards there as well," Hayes-Pleasant said of UTVs.
Yamaha has met with the CPSC several times in the past two years, sharing information on new Rhino developments and safety features, as well as the company's efforts to promote safe and responsible use of the vehicles, said Roy Watson, general manager of legal for Yamaha Motor Corp. USA, which distributes the Rhino.
More than 30 new product liability suits against Yamaha Motor Co. Ltd. or its subsidiaries over the Rhino have cropped up on the dockets of federal courts across the U.S. so far in 2008.
Of those federal cases, some were initially lodged in state court and then removed, but most of the complaints were filed in a federal venue. Plaintiffs claim that the Rhino has design flaws that make it unstable and prone to tipping over, and many of the suits center on injuries the plaintiffs say they sustained when their limbs were trapped beneath the vehicles after they tipped.
Overall, there are 57 Yamaha Rhino cases pending in 34 different federal district courts, according to a joint motion several Rhino plaintiffs filed on Dec. 2 asking the JPML to centralize all Rhino product liability suits and related litigation for common discovery and pretrial proceedings.
Most of the cases that would comprise the Yamaha Rhino product liability MDL are less than a year old, and new ones are being filed daily, said the joint motion.
"The Yamaha Rhino actions for which plaintiffs jointly seek ongoing coordination arise from and involve a common factual scenario, giving rise to common legal questions, relating to a common product, its common defects and the common course of conduct of its maker, Yamaha, in designing, manufacturing and marketing the vehicle, and in discharging, or failing to discharge, its duties to its customers," the joint motion said.
According to Watson, there are about 200 cases between federal and state courts over the Rhino.
"I wouldn't be surprised if there a significant number of claims that are still unfiled," said Fabrice N. Vincent, a partner with Lieff Cabraser Heimann & Bernstein LLP, which represents the plaintiffs in some of the Rhino cases.
Vincent called Yamaha's offer to install doors and hand holds on Rhinos free of charge an excellent step forward, but expressed concerns about how many doors had actually been installed, and said more could be done.
"They have great engineers, and I see them as a partner in improvement," Vincent said of Yamaha.
One of the more recent federal cases over the Rhino was filed in the U.S. District Court for the Middle District of Tennessee by Greg and Teresa Mitchell on behalf of their 11-year-old daughter on Nov. 6. The suit names Japanese parent Yamaha Motor Co. Ltd., Rhino distributor Yamaha Motor Corp. USA and Yamaha Motor Manufacturing Corp. of America as defendants.
The Mitchells' daughter suffered severe injuries to her knee, arm, foot and ankle that required surgery and the amputation of four of the toes on her right foot, according to the plaintiffs.
The Rhino is vulnerable to rolling over during turns, even at slow speeds, because of design and manufacturing flaws including a narrow track width, high platform and top-heavy design, the Mitchells contend.
"Defendants had the knowledge and have been aware for years of the propensity of the Rhino to roll over, and of the serious injuries and deaths it could cause both drivers and passengers in rollover accidents, and have yet to modify the Rhino's design to correct for its stability problems," the Mitchells' Nov. 7 amended complaint said.
Most Rhino riders operate the vehicles safely and responsibly, and have enjoyed millions of hours of riding without incident, said Roy Watson, who added that Yamaha was proud of the safety record and safety features of the vehicle.
The Rhino's popularity has made it an attractive target for the plaintiffs bar, according to Watson.
"These plaintiffs' firms have seized on safety and product enhancements that Yamaha has made to the Rhino to allege baseless claims about the stability of the vehicles," Watson said.
The Mitchells are represented in their suit against Yamaha by Lieff Cabraser Heimann & Bernstein LLP.
Yamaha is represented in that matter by Howard, Tate, Sowell, Wilson & Boyte.
That case is Mitchell et al. v. Yamaha Motor Co. Ltd. et al., case number 08-cv-01077, in the U.S. District Court for the Middle District of Tennessee.
