Improper Booster Seat Marketing Injured Girl, Suit Says

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By Martina Barash

Sept. 22 — Advertising booster seats as appropriate for children who weigh less than 40 pounds creates a “safety gap” that left one Florida girl with a serious spinal injury, an attorney for the girl’s family says ( Back Somoza v. Abbot, Fla. Cir. Ct., No. 16-2015-CA-001596, hearing 9/20/16 ).

The Florida suit takes aim at some of car-seat maker Evenflo Co.'s booster seats, which are seats that raise a child to put the car’s seat belt in a better position.

Evenflo’s marketing of the Big Kid belt-positioning and other booster seats for children starting at 30 pounds goes against pediatricians’ and government recommendations as well as some states’ driving laws, attorney Adam Langino told Bloomberg BNA Sept. 22.

Langino, who is at Cohen Milstein Sellers & Toll PLLC in Palm Beach Gardens, Fla., said a regular, forward-facing car seat that provides more protections for lighter weight children would have been better for the 5-year-old whose family he represents.

Booster seats are “a fantastic last step for larger children” before they graduate to normal seat-belt use, but aren’t for smaller children, he said.

The plaintiff’s lawyer is also pointing blame at federal regulators. He said the National Highway Traffic Safety Administration crash-testing standards do a poor job of assessing booster seats.

Evenflo, in a statement e-mailed Sept. 22, defended its Big Kid booster seat as meeting or exceeding government safety standards when used according to the product instructions. It declined to comment on the specific case here.

Other companies besides Evenflo also market booster seats with a weight rating starting at 30 pounds, Langino said.

The trial date will be in 2017, Judge Thomas Beverly of the Duval County Circuit Court said at a hearing Sept. 20, according to Langino.

Smallish 5-Year-Old in Collision

A 5-year-old girl identified as J.B.C. was in an Evenflo Big Kid booster seat in May 2014 when another car failed to yield when turning left, resulting in a collision, according to the amended complaint. The crash caused her to slide out from, or be thrown from, the booster seat, the complaint said. She allegedly sustained a serious spinal injury.

J.B.C. was on the small side for her age, about 33 pounds, Langino said.

Her parents, Arlison Omar Back Somoza and Nieves Melina Cruz de Back, sued Evenflo, as well as the driver and owner of the other car. They asserted negligence and strict-liability claims against Evenflo.

Langino said he’s aware of two other suits involving similar allegations about smaller children injured in booster seats, both against Evenflo: Steele v. Evenflo Co., 147 S.W.3d 715 (Mo. Ct. App. 2004) ($8.5 million verdict reinstated) and A.H. v. Evenflo Co., No. 1:10-cv-02435 (D. Colo. 2015) (judgment following verdict for Evenflo).

“These booser-seat companies are inviting parents to prematurely graduate their child to a booster seat,” Langino said.

Parents who see marketing that spans a wider weight range may think, “This is a more robust seat,” he said.

Recommendations, History

NHTSA’s current guidelines don’t specify weights. Rather, the agency says a child should be kept “in a forward-facing car seat with a harness and tether until he or she reaches the top height or weight limit allowed by your car seat’s manufacturer.”

Until the 2000s, before the advent of the LATCH system, which allows child seats to clip into built-in hardware in a vehicle, “child seats were only weight-rated up to 40 pounds,” Langino said. NHTSA, the American Association of Pediatrics and the Children’s Hospital of Philadelphia recommended “that children remain in a forward-facing child harness restraint until 40 pounds and not be transitioned before that,” he said.

After vehicles started having the LATCH system, forward-facing car seats with harnesses started being rated up to 65 or even 80 pounds, Langino said. It was “in recognition of that technical advancement” that the groups changed their recommendations to encourage parents to keep children in forward-facing car seats with harnesses for as long as possible before moving to a booster seat, he said.

NHTSA currently envisions that transition taking place when children are 4 to 7 years old.

Evenflo Responds

Evenflo said in its e-mail, “The Big Kid belt-positioning booster involved in this case was designed and tested for use by children 30-100 lbs. as a high-back booster and 40-100 lbs. as a no-back booster. The seat has been sold for a decade and meets or exceeds all applicable government safety standards when used according to the product instructions.”

Langino contends booster seats were “bootstrapped” into NHTSA’s Federal Motor Vehicle Safety Standard 213, governing child restraint systems. He’s concerned that the standard, and its testing criteria, aren’t specifically designed for them. “It’s not a restraint system, it’s an elevation system,” he said.

The driving laws of six states prohibit putting children under 40 pounds in booster seats, he said. And Canadian authorities don’t allow the same booster seats to be marketed with a weight rating starting under 40 pounds, he said.

John Carlisle and Richard Kyle Gavin of Liles Gavin in Jacksonville, Fla., along with Peter P. Sledzik of Boyd & Jenerette PA in Jacksonville, represent Evenflo.

To contact the reporter on this story: Martina Barash at MBarash@bna.com

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