Press Release

Introduction
Intervenors Parents for Safer Airbags and the Oregon Consumer League request that the court allow public disclosure of certain of the Nissan defendants' ("Nissan") crash test videos and reports found at Bates Nos. 002832, 007827, 007295-007343, 000803-000850, 002764-002776, 002784-002788, and 002806-002831. Public disclosure is appropriate because: (1) consumers have a compelling need to know about the deployment characteristics of specific airbag systems (including the velocity, force, trajectory, and excursion distance of the bag); (2) many owners and users of airbag equipped vehicles, including the ‘94-‘95 Nissan Altimas presently on the road are unaware that airbag systems can injure and kill even properly restrained occupants; and (3) the crash test videos and reports reveal no trade secrets.

Facts
Intervenors are advised by counsel for plaintiff Norma Swanson that (1) plaintiff was allegedly blinded by the passenger-side airbag in a 1994 Nissan Altima; (2) Nissan produced certain crash test videos and reports in discovery that reveal design defects in the airbag system at issue; (3) while the videos and reports have been disclosed to plaintiff, Nissan seeks to bar disclosure to other litigants and the public by claiming they are confidential; and (4) plaintiff has filed a motion challenging Nissan's designation of confidentiality.

Parents for Safer Air Bags ("PSAB") is a nonprofit organization dedicated to promoting safer airbags through education, legislation and product liability litigation. PSAB conducted an in-depth study of airbag designs in 1996 and 1997. PSAB discovered that airbag systems vary widely both in their design and in their safety performance. Some airbag systems are well designed and have caused no deaths or severe injuries; others have extremely dangerous designs and are responsible for a disproportionate number of deaths and severe injuries. PSAB opposes the sealing of crash test videos and reports. Affidavit of Robert C. Sanders ¶1,3, 10 ("Sanders Aff.").

The Oregon Consumer League ("OCL") is a nonprofit organization established to protect consumers through education and legislation. The OCL has campaigned against concealed defects in new and used automobiles, especially defects which put consumers at risk of serious harm or death. Consumers need to know about airbag systems and the safety of the various designs because they are probably unaware that airbag system designs differ. Affidavit of Jason Reynolds ¶1, 4, 6.

Plaintiff alleges in her Memorandum in Support of Motion to Require Nissan to Make Good Cause Showing that since the introduction of the 1994 Altima, at least 13 other passengers have suffered eye injuries as a result of passenger-side airbag deployments with the same airbag system design. See Ex. A, attached to Affidavit of Christopher T. Hill, attached to plaintiff's Motion to Require Nissan to Make Good Cause Showing ("OSI Exhibit"). The owner's manual and subsequent mailings to Altima owners do not highlight the dangers of the subject airbag system to passengers who are seated in an ordinary seating position and wearing seatbelts in low-speed collisions. Ex. 1; Ex. 2.

In advertising the 1994 Altima, Nissan compared the Altima's safety features to Lexus, BMW and Mercedes Benz. Ex. 3. The 1994 Altima airbag system has a single deployment threshold and an untethered bag. See plaintiff's Memorandum in Support of Motion to Require Nissan to Make Good Cause Showing, n.5 at 5. Mercedes Benz has had a dual threshold system since 1988, and intervenors believe that Mercedes tethers its airbags. Sanders Aff. ¶¶7,9. Dual thresholds and tethers both reduce the risk of eye injury. Sanders Aff. ¶5-10.

Argument
Intervenors join plaintiff in challenging Nissan's designation of confidentiality. Plaintiff should be allowed to disclose the specified crash test videos and reports to the public because of the public's interest in making informed decisions about (1) purchasing and using cars with various airbag system designs, and (2) whether to obtain a retrofitted airbag "on-off" switch, as now permitted by the federal government.

Plaintiffs in actions against automobile manufacturers alleging death or injury from airbag inflation should be permitted to obtain, through discovery, copies of crash test videos and reports. The production of crash test videos and reports facilitates the proper adjudication of airbag death and injury cases by providing the finder of fact with a reliable basis upon which to determine whether the airbag system posed an unreasonable and unnecessary risk of injury. In particular, examination of such crash test videos and reports allows the finder of fact to determine whether the airbag system at issue contained, or failed to contain, design features known to enhance airbag safety.

There is no legitimate reason why this information, once produced in litigation, should not be readily available to the public. The sealing of crash test videos and reports only serves to prolong the present public safety crisis by preventing ready analysis of the variances in airbag systems.

I. Relevant Legal Standards
The burden of showing good cause for a protective order under Fed. R. Civ. P. 26(c) is on the party seeking protection from disclosure because there is a presumption that discovery takes place without secrecy, in the public eye. See Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (burden of showing good cause is on the party seeking protection); In re Agent Orange Product Liability Litigation, 821 F.2d 139, 146-46 (2d Cir.), cert. denied, 484 U.S. 926 (1987), aff'g, 104 F.R.D. 559, 567 (E.D.N.Y. 1985); American Tel. & Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1978), cert. denied, 440 U.S. 971 (1979) ("as a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings."); Niren v. I.N.S., 103 F.R.D. 10, 11 (D. Or. 1984).

Nissan must show not only that the crash test videos and reports contain trade secrets, but also that disclosure of those secrets will work a clearly defined and very serious injury rather than a vague and unsupported allegation of harm. Anderson v. Cryovac, 805 F.2d 1,7 (1st Cir. 1986) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at 264-65 (1970)); United States v. United Fruit Co., 410 F.2d 553, 557 (5th Cir. 1981); General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974).

In addition, when determining whether there is good cause, the public's interest in the information must be taken into account in determining whether to enter a protective order. In re Agent Orange Product Liability Litigation, 821 F.2d 139, 146 (2d Cir.), cert. denied, 484 U.S. 926 (1987) (public's need to know about a subject of "especial public interest" is a factor weighing against entry of a protective order). Cf. Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479 (S.D.N.Y. 1982) ("[e]ven when good cause for the issuance of a protective order is shown, the decision to grant such an order lies in the discretion of the court.").

II. The Public Interest in Knowing the Designs and Performance Characteristics of Airbags Far Outweighs Defendant's Interest in Keeping These Crash Test Videos and Reports Secret

There is a wide variance in the design and safety performance of airbag systems. The better-designed airbag systems have caused no deaths or severe injuries due to design features such as tethers (internal straps that keep the bag from extending dangerously close to the occupant) and "dual thresholds" (12 mph "trigger" if occupant is unbelted and an 18 mph "trigger" if the occupant is lap belted). Sanders Aff. ¶5-10. The Altima has neither feature. See plaintiff's Memorandum in Support of Motion to Require Nissan to Make Good Cause Showing, n.5 at 5. Because airbags are now required in all new cars, the public has a strong interest in knowing about the features and safety benefits that differ among airbag system designs.

Other plaintiffs and the public should have access to information regarding the variances in airbag design and deployment characteristics. Plaintiffs need this information in order to determine the speed, force, trajectory, and excursion distance of the airbag during its deployment. Plaintiffs will then be able to determine whether the mode of the bag's deployment is safe or whether it exposes the occupant to unnecessary risks not found in better designed airbag systems.

Consumers have a similar interest in obtaining airbag system crash test videos and reports. Consumers need to know which airbag systems are safe, and which, due to their flawed designs, have dangerous propensities. Such disclosure is particularly necessary in view of advertising that fails to reveal the variances in airbag system designs and erroneously suggests that all airbag systems have features that are present only in the better-designed airbag systems. Ex. 3. Armed with information on the variances in airbag system designs, consumers can make informed decisions with respect to new car purchases and the installation of airbag "on-off" switches.

Public access to airbag system crash test videos and reports will have three salutary effects: (1) it will help identify the poorly designed airbag systems; (2) it will place pressure on the manufacturers of poorly designed systems to adopt the safer design features found in better airbag systems; and (3) it will encourage public support for well-designed systems.

III. Secrecy is Unwarranted Because Owners and Users of the 1994 and 1995 Nissan Altima Need to Know About the Design of the Altima's Passenger Side Airbag System

Plaintiff alleges in her Memorandum in Support that (1) the ‘94-‘95 Altima airbag system design has caused severe eye injury to at least 13 passengers, (2) many of these injuries have resulted in blindness due to retinal and optic nerve damage, and (3) some of these injuries involve fractures around and inside the eye socket. See OSI Ex. These allegations warrant public disclosure of Nissan's crash test videos and reports so that the airbag system can be carefully scrutinized for safety.

Conclusion
The defendant has no need to keep the specified crash test videos and reports secret because they reveal no trade secrets. The public has a compelling need to know the various design features of airbag systems and the hazards associated with those features.
For the foregoing reasons, intervenors respectfully request this court to deny any request for an order protecting the specified crash test videos and reports from public disclosure.

DATED this day of April, 1998.

Jeffrey Foote, OSB No. 74098
Jeffrey Foote and Associates, P.C.
621 S.W. Morrison St., Ste. 950
Portland, Oregon 97205
Telephone: (503) 228-1133

Leslie A. Brueckner, WSB No.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, N.W., Ste. 800
Washington, D.C. 20036
Telephone: (202) 797-8600

Attorneys for Intervenors