Preview
FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022
Exhibit “9”
FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK:
X
SUZANNE SCHULMAN AS ADMINISTRATRIX OF THE
ESTATE OF BRITTNEY M. SCHULMAN, DECEASED;
ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRABINA,
AS ADMINISTRATRIX OF THE ESTATE OF AMY
GRABINA, AND MINDY GRABINA, INDIVIDUALLY;
STEVEN BARUCH, AS ADMINISTRATOR OF THE Index No.: 611214/2015
ESTATE OF LAUREN BARUCH, DECEASED AND
STEVEN BARUCH, INDIVIDUALLY; JOELLE DIMONTE;
MELISSA A. CRAI, AND ARTHUR A. BELLI, JR.,
AS PARENT AND NATURAL GUARDIAN OF STEPHANIE
BELLI, DECEASED, AND AS THE ADMINISTRATOR OF
THE ESTATE OF STEPHANIE BELLI,
AFFIDAVIT OF
Plaintiffs, JAMES PUGH, PH.D., P.E.
-against-
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN
ROMEO, TOWN OF SOUTHOLD AND COUNTY OF
SUFFOLK, CABOT COACH BUILDERS, INC., D/B/A
1-5"
ROYALE LIMOUSINE AND "XYZ COMPANIES
NAME BEING FICTITIOUS BUT INTENDED TO BE THE
REMANUFACTURERS, DISTRIBUTORS AND/OR SELLERS
OF THE 2007 LINCOLN TOWN CAR STRETCH LIMOUSINE
INVOLVED IN THE COLLISION,
Defendants.
X
JAMES PUGH, PH.D., P.E., being duly sworn, deposes and says:
1. I am a not a party to this litigation. I have been requested by the attorneys representing
the eight occupants of the subject limousine, and specifically by John L. Juliano, Esq., the
attorney representing the plaintiff Estate of Brittney M. Schulman, deceased, to make this
affidavit to determine the effect of various safety systems in the subject limousine on the
mitigation of injuries and prevention of the death of the plaintiff s decedent in the above-cited
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action. My investigation and findings in this affidavit specifically address the injuries and
associated analysis for the plaintiff's decedent, Brittney M. Schulman.
2, I am a forensic automotive engineer performing accident investigation and vehicle
analysis for over thirty years. I am a licensed professional engineer in New York State and have
performed over 5,000 investigations involving various vehicles and the manifestations of defects,
malfunctions, and collisions. I have been accepted as an expert and have provided testimony in
the District and Supreme Courts of New York, as well as Long Island for plaintiffs and
defendants in civil and criminal matters regarding various issues of engineering and motor
vehicle accidents and safety. I hold a Bachelor of Science degree in engineering and a Doctor of
Philosophy degree in Biomedical Engineering from the Massachusetts Institute of Technology
(MIT), Cambridge, Massachusetts. I am the president and director of Inter-City Testing &
Consulting Corporation, a forensic engineering firm specializing in analysis of automotive
accidents, injury causation, and injury prevention. I have consulted with numerous federal and
state agencies, including the National Transportation Safety Board (NTSB) and the National
Accident System (NASS), both agencies of the Department of Transportation of the
Sampling
federal government, as well as with assistant district attomeys of the City of New York and
boroughs, as well as Westchester County, and various state highway departments including New
York State on highway accidents. I have been recognized as an authority on automotive
crashworthiness and operator safety, I have been invited and have appeared on national networks
as a consumer advocate to increase the safety of motor vehicles.
3. My analysis and opinions are rendered herein are to a reasonable degree of certainty in
science, engineering, biomechanics, ergonomics, and occupant safety. The bases for these
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opinions are contained the Federal Motor Vehicle Safety Standards (FMVSS's), and the
preambles to the specific FMVSS's cited.
4. The standard is FMVSS 208 - Occupant Crash which covers in detail
primary Protection,
those factors that prevent injuries and deaths in motor vehicle accidents, the requirements
necessary to be incorporated into motor vehicles to prevent injuries and deaths in motor vehicle
accidents, and the testing that has been done and should be done to confirm that the motor
vehicles comply with the standards. The severity and specifies of those tests specified in
FMVSS 208 provide quantitative markers for the types of accidents in which proper safety
systems would reliably prevent deaths and injuries. It must be that the
emphasized, however,
FMVSS's are MINIMAL standards which are typically exceeded as have
by manufacturers, they
found that exceeding the requirements of the standards is economical, feasible, and in the
interests of their customers. An example is the manufacturers exceeding the crash survivability
requirements mandated by the as demonstrated
FMVSS's, by the National Transportation Safety
Association (NHTSA) New Car Assessment Program (NCAP) Test Reports at least a 5-
showing
mph delta-V survival greater than that
severity mandated by the FMVSS's.
5. The purpose of my examination of the vehicles was to evaluate the crash limousine to
determine why itresponded in the manner itdid to the collision forces and how the design and
construction contributed to the collision response. My analysis considered the structural
integrity of the crash limousine and why and how itdid not protect the occupants as it could have
during the collision. In addition, my purpose was to address the construction and design issues
relating to
increasing crashworthiness in multiple-occupant vehicles such as the subject
limousine to prevent or otherwise limit the incidence of injuries and fatalities.
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6. On October 22, 2019, I inspected the 2007 Lincoln Town Car limousine bearing Vehicle
Identification Number (VIN) 1L1FM88W87Y616205 and the 2005 Dodge Dakota pickup truck
bearing VIN ID7HW58N55S227605 to analyze the response of the crash limousine to collision
forces applied to the passenger side of the crash limousine by the truck on July 18, 2015. The
inspection of the limousine and truck was performed at the Suffolk County Police Department
impound facility in Westhampton, New York. I also inspected the site of the accident, and have
driven through the subject intersection approximately once per week for the past 20 years.
7. The purpose of my examination, inspection, and analysis was to determine the structural
integrity, or lack thereof, associated with the modification from a passenger car to a limousine,
and the relationship of the lack of structural integrity to the biomechanics of the eight (8) young
women occupants of the limousine at the time of the accident. My investigation included
examination and analysis of the modified design, modes of failure, analysis of the joinery, and
measurement of the damage sustained by both vehicles.
8. On February 14, 2020, in Huntington, New York, I also examined and inspected the side
impact bar that had been removed from the limousine. These two inspections have allowed me
to confirm the findings reported by Jeffrey Lange in his affidavit dated November 11, 2022.
9. The accident occurred on July 18, 2015, at approximately 5:15 pm, on County Route 48
at the intersection with Depot Lane, Southold, County of Suffolk, State of New York, and
involved a 2005 Dodge Dakota pickup truck operated by the defendant, Steven Romeo and a
2007 Lincoln Town Car converted into a stretch limousine operated by the defendant, Carlos
Pino. Eight unrestrained young women were in the rear seating positions of the limousine. As
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the limousine was in the process of making a U-tum to proceed westbound on County Route 48,
the pickup broadsided the limousine almost in the dead center of the limousine.
10. The data recorder in the airbag module in the limousine indicated an impact of 20 g's,
and the impact speed of the pickup truck was approximately 50 mph. Gregory Stephens, the
accident reconstruction expert produced by the defendant, Cabot Coach Builders, Inc. alleges in
his affidavit dated August 29, 2022, that a delta-V for the limousine of 20 mph with a principal
direction of force (PDOF) of 90 degrees, and a peak lateral acceleration of 13.9 g's.
11. My inspection revealed significant intrusion of the pickup truck into the passenger's side
of the limousine, and very little deformation to the front of the pickup truck. Examination of the
pickup truck without any additional information would lead one to believe that this vehicle did
not suffer a major frontal impact, and itsrelatively intact condition was dramatic relative to the
extensive and deep intrusion damage to the limousine, surely indicating that something was
amiss. What was amiss and missing fNm the limousine was any functioning resistance of the
limousine to side impact because the front of the pickup truck hit what was essentially an
expendable crash cushion similar to the crushable barriers protecting vehicles from hard impacts
against Jersey barriers at exits on superhighways.
12. Based on my physical examination of the vehicles, I confirmed that this was a side
impact collision that resulted in substantial intrusion of the truck into the passenger compartment
of the crash limousine. My investigation revealed that the side impact protection system of the
crash limousine failed due to a number of factors associated with the design modifications and
implementation of those modifications as performed by CABOT, who converted the subject
vehicle from a passenger car into a stretch limousine.
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13. It must be emphasized that such limousines are intended for high occupancy, which in
essence is their raison d'etre, and they are habitually and routinely driven with multiple
occupants in the rear seating positions. Therefore, the manufacturers and converters have a
special duty to protect the occupants, much more so than the manufacturer of the basic vehicle
that was stretched and converted to a limousine. This is consistent with, for example, converters
who transform production sedans into convertibles, with the understanding and need to
strengthen the unibody to accommodate the conversion and to preserve the rigidity of the
passenger cage as a space frame originally and strengthened to convert to a convertible to
adequate resist intrusion in accidents.
14. Crashworthiness is defined as the of a motor vehicle to protect occupants against
ability
death and injuries in a foreseeqNe collision of reasonable severity. A t-bone type side collision
such as occurred in the subject accident is foreseesNe, because the federal government in
clearly
FMVSS 208 has mandated protection in side impact collisions and specifies a test for motor
a t-bone-type collision. FMVSS 208 has established a delta-V in a rigid
vehicles simulating
barrier collision at a speed of 30 mph, which is a delta-V of slightly greater than 30 mph due to
vehicle from the barrier. Therefore, the federal government has deemed a
elastic rebound of the
mph as reasonsNe. The delta-V reported as a result of the police
delta-V of 30 to 33
20 mph for the much lower than the 33mph
investigation was appmximately limousine,
reasonsNe delta-V established the federal govemment in the FMV SS's.
by
side impact crashworthiness, as follows, in §5.2
15. FMVSS 208 specifies requirements for
"Impact to a vehicle on either side by a barrier
Lateral Barrier Crash Test: laterally
Moving
of §8. The test specified in §8.1.8
at 20 mph under the applicable conditions dummy
moving
position adjacent to the impacted side shall
positioned in the front outboard designated seating
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standard."
meet the injury criteria of §6.2 and 6.3 of this Further, §6.1 states the following: "All
portions of the test dummy shall be contained within the outer surfaces of the vehicle passenger
compartment"
This test for side crashworthiness has remarkable similarities to the truck
pickup
hitting the side of the limousine with a delta-V of 20 mph, in part because of the massive and
undeformable nature of the moving barrier, because the is deformable and should have
pickup
crushed commensurately if the space frame of the limousine had been adequate, and in part
because of the weight discrepancy between the weight of the limousine and the weight of the
pickup truck. The police Collision Reconstruction reports a curb weight for the limousine as
6,930 pounds and the pickup truck as 5,030 pounds.
16. In allvehicles, there must be a side impact safety/protection system that prevents and/or
should reduce intrusion into the passenger compartment of an opposing vehicle during a side
impact. Side impact protection is a system of components and connections that includes the side
impact intrusion beam, vertical pillars (labeled front to rear "A", "B", etc.), roof structure, rocker
panel/floor structure, and body to frame mounting. The effectiveness of the side impact
protection system is a function of the design and integrity of the crash energy management
system. The resistance to side impact is a result of the design and construction of a "space
frame"
which is a three-dimensional structure much like a geodesic dome which resists
space"
deformation in all directions, and which preserves the occupant "safe or area in which the
occupants are seated.
17. My own examination of the crash limousine side impact protection components revealed
that the anti-intrusion beam was not properly secured to the vehicle pillars during construction
and the poor welding was observed not only on the intrusion beam but was found in other areas
of the vehicle construction. Given that the primary anti-intrusion component of the limousine
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failed due to defective welding, that the limousine was not equipped with airbags in the rear
seating area, was not equipped with additional materials within the outer skin
energy-absorbing
of the vehicle to reduce the impact forces from an vehicle such as the and the
impacting truck,
occupants were not utilizing the restraints, the rear seating area of the limousine was reduced
essentially to an unsupervised adult playpen in which anything goes, and, as as the playpen
long
was not on the road and exposed to oncoming vehicles, was safe enough. However, when the
vehicle was on the road, itwas a disaster waiting to happen.
18. The basic principles of ensuring that a vehicle is adequately crashworthy, after the impact
has been deemed foreseeable and of reasonable severity, which was the case for the limousine in
the subject accident, are the following, covered in $19 through124.
19. Regarding the space frame, which is the primary and most significant component for
adequate crashworthiness, the occupant compartment must not collapse or intrude into the
passengers'
safe zone, meaning that the space frame should be rigid enough not to deform and
strike the occupants directly. This requires, as identified above in this affidavit, the design and
construction of a space frame of adequate rigidity. An alternate system to significant increase
the robustness of the space frame is to seat the occupants in bench seats facing either forwards or
rearwards. Such bench seats provide a means of transverse stiffening of the space frame through
the structure of the bench frames themselves. Two sets of facing bench seats accommodating
three occupants in each bench seat could have feasibly and economically been installed in the
subject limousine, which would have provided two separate party areas inside the rear of the
limousine. A rigid space frame has been found to provide excellent protection for race car
drivers who experience high-g crashes with minimal or no injuries.
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20. The interior passengers'
areas of the compartment must be adequately padded and
covered, and sharp and hard areas must be eliminated so that, if there is compromise of the space
frame and itcontacts the the will
occupants, contact not be lacerative or but will give
crushing,
and absorb in and of itself.
energy
21. The interior described in $20 above
padding greatly assisted and achieved through the
installation of airbags, both frontal, side, and rollover triggered. Such airbags when deployed
will transmit any contact with the passengers over a large area of the body, significantly reducing
the unit loads, and injuries and and
preventing fatalities, preventing unbelted occupants from
colliding with each other and with the interior structures of
colliding the limousine. Airbags are
considered passive restraints and, as such, do not require on
anything the part of the occupants to
achieve protection from injury, and are also intended to be so restraints"
called "supplemental to
augment and increase the protection afforded through the use of seatbelts.
22. Seatbelts were mandated to be installed in motor vehicles by the federal government in
1968. General Motors, in a pilot program to demonstrate the effectiveness of airbags, did a study
in 1973 involving production vehicles with and
fitting airbags, they were so confident of the
injury-protection afforded by airbags that they did not even install seatbelts in the The
vehicles.
results of the study were confirmation of the and
efficacy, cost-effectiveness, feasibility of
airbags. However, passive restraints did not become standard features in motor vehicles until
1983, when FMVSS 208 required passive restraints to be installed in motor vehicles. Automatic
seatbelts satisfied the requirement, but itbecame through efforts
apparent, by consumer
advocates including myself, that those automatic seatbelts were inferior to non-automatic
seatbelts in their abilities to prevent deaths and injuries. itbecame apparent around
Therefore,
the year 2000 that the airbags were the most economical and feasible means of the
satisfying
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passive restraint requirements of FMVSS 208, the totality of which is contained in approximately
100 pages, and the preamble to FMVSS 208 comprises approximately three times that, or
approximately 300 pages.
23. The contents of this affidavit are intended to summarize the materials contained in those
approximate 400 pages as they relate to the subject vehicle and to the subject accident. FMVSS
became codified as law only after extensive discussions, debates, compromises and conferences
took place between representatives of the federal government, state governments, local
govemments, consumer advocates, advocates for the automotive industry including converters of
basic vehicle for specific applications, representations of insurance companies, and any and all
others having a financial stake in the legislation. Certain proposed requirements were
necessarily watered down, such as the requirement that conversion vehicles, if produced in
sufficiently small numbers, be exempt from some of the regulations. This, however, does not
preclude converters from economically and feasibly applying tools from the established toolbox
so that their converted vehicles have the requisite features to safely serve their intended
functions, which is basis for requirements of product liability. The Lincoln Town Car was
certified as complying with all applicable FMVSS's in effect at the time of manufacture, which
included side impact requirements, and the converter produced a vehicle that was NOT in
compliance with those same standards with which the basic vehicle complied.
24. The area between the inner and outer panels of the rear portion of the limousine should
have been filled with energy-absorbing material such as expanded polystyrene foam (EPS). An
adequate width of EPS, estimated and suggested to be at least 6 inches, would significantly
increase the side crashworthiness of the limousine.
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25. Occupants must be restrained with three-point combination lap and shoulder harness
seatbelts at the very least, with combination emergency locking and inertial retractor
mechanisms. Seatbelts ensure that the occupants experience the entire ride-down of any
compromise in the space frame and rolls the forces down to non-injury producing levels. Of
course, seatbelt usage must be mandated and enforced by a responsible adult, namely the driver
of the limousine, who necessarily is in charge of the limousine. Without such supervision and
mandating of seatbelt usage, the rear passenger compartment of the limousine is reduced again to
an unsupervised adult playpen. The warnings to wear the seatbelts must be highly visible,
numerous in quantity, and color-coded to draw the attention of the occupants. The seatbelt
warnings in the converted limousine were defective and virtually worthless. The testimony from
a surviving occupant was that the seatbelts were not readily available and no one enforced their
usage.
26. When a motor vehicle such as the subject limousine is exposed or involved in a
foreseeable accident of reasonable severity and injuries are sustained, itis invariably because of
violation of at least one of the requirements detailed in 119 through 125 immediately preceding
this paragraph.
27. The subject limousine, however, lacked all of the required systems mandated for
adequate crashworthiness, and, even ifthe construction and welding were not defective, there
stillwould have been damage to the rear occupants. The subject limousine therefore was
bodily
inadequate with regard to crashworthiness, particularly in a side impact such as occurred
totally
in the subject accident.
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28. The remanufacturer of
(Cabot) (converters) the standard Lincoln Town Car into a stretch
limousine had a large tool box at their all of
disposal, which had proven to be effective in
ensuring that the limousine would be and
crashworthy. they failed to open the tool box and failed
to utilize the tools in that box, allof which are enumerated in119 through125 of this affidavit.
29. on §28 and the affidavit
Following above, by of Lange dated November from
11, 2022,
which I am paraphrasing as follows in this paragraph: The side impact protection system in the
subject limousine relies on an anti-intrusion beam "B" "C"
that, in part, holds the and structural
pillars in position. The anti-intrusion beam failed to reduce intrusion and was just pushed out of
the way, rather than performed in the itwas anti-
having way designed and intended. The
intrusion beam was attached to the limousine structure.
defectively The was of poor
welding
quality, incomplete, and insufficient. Several of the fillet welds used to join the brackets
securing the anti-intrusion beam and pillars for the stretched portion of the crash limousine
exhibited what is known as a lack of penetration. also known as a lack of fusion defects which
occurs when the welding procedure does not result in a homogeneous seam as discussed above.
Because of welding defects (inadequate similar to those
welding) that caused the detachment of
the anti-intrusion beam, parts of the rocker panel became detached The rocker panel is a
significant part of the crash energy management system which is integral to the side impact
protection system. In the event of a side impact intrusion prevention
collision, and/or mitigation
and crash energy management are issues. To protect the
key safety occupants during a collision,
crash energy has to be managed and diverted around the passenger compartment. In this case,
the structure of the limousine was not connected and the
sufficiently, energy inanagement
system, altered from the original manufacturer's failed. The rocker panel was
design,
inadequately mounted and contributed to the failure of the anti-intrusion system and the inability
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of the management system to redirect collision forces. Other issues the anti-
energy conceming
intrusion system included the deformity of the which moved fmm its position
flooring mounting
inward toward the vehicle longitudinal centerline. This occurred, in part, because of an improper
design: the two mounts securing the flooring were improperly placed far apart and from the
away
pillars that there was too much stress applied to them to stay in place regardless of how they
were welded. Tack or spot welds are a form of temporary welding to hold components together
in anticipation of more substantial welding or other form of bonding. Tack welds are used in the
fabrication process for positioning items so that one can get them in the right place before
making a permanent, homogenous weld, which cannot be taken apart. The tack weld is merely
one step beyond using a clamp to join two items. The essence of quality and non-defective
welding is to achieve a weld that, when the welded item is overloaded, the weld itself does not
fail, but the associated metallic components fail. My examination of the rocker panel on the
passenger side indicated the welds were consistent with tack welds and not sufficient to properly
secure and hold the rocker panel together. The lack of structural integrity in the rocker panel
contributed to the failure of the side impact protection system. In the subject limousine, the
rocker panel was not connected to frame and was found to be loose and free-floating, and the
welding on the modified portion of the rocker panel was of such poor quality, inadequate
welding, penetration, and other weld related defects that itresulted in the compromise of the
rocker panel; thus contributing to the failure of the side impact protection system. The section of
the rocker panel that had come apart at the welds revealed insufficient penetration, meaning that
the metals were not joined sufficiently. These welds not only failed to replicate the original
equipment manufacturer joinery, but these welds failed to replicate the quantity and quality of
welds in the manufacturer's original construction. Aside from the welding defects, I also
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determined that there was no additional secondary structure, such as floor beams or roof beams
to redirect crash energy and control the of the posts. There were no additional lateral
positioning
beams installed in the floor to control the of the pillars as the floor rolled upwards.
positioning
When the rocker panel and the mid-compartment flooring were rolled away from the
substructure of the crash limousine, these components were no longer a part of the anti-intrusion
system. This reduced the ability of the limousine to resist the forces, to distribute the
intruding
collision energy to other areas, or to allow the crash limousine to move further on the
possibly
roadway as part of the energy absorbing process. It allowed the truck to move inward, into the
crash limousine's passenger compartment, and to push the pillar into the interior components,
which interacted in a fatal and injury-productive manner with the occupants.
30. My own inspection showed that the side impact protection system failed in part due to
improper/incomplete construction assembly including defective welding, lack of additional
structure reinforcements in the roof and other areas, and insufficient securing of the body to the
structure due to inadequate mount connections, quality, and quantity, and failure of the rocker
panel system. All of this significantly compromised the ability of the passenger area to react as a
space frame as mandated for adequate crashworthiness in paragraph 18 above.
31. It ismy opinion, within a reasonable degree of professional engineering certainty, that the
side impact protection and anti-intrusion system in the crash limousine failed. The failure was in
part the result of poor-quality welding ("woefully inadequate and unacceptable), or otherwise
improper welding to secure the anti-intrusion beam. It reduced the rigidity of the structure, and
as a direct result, itdid not keep the pillars in place.
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32. It isalso my opinion, within a reasonable degree of professional engineering certainty,
that the side impact protection and anti-intrusion system in the crash limousine failed, in part,
because the midbody mounts used by CABOT in the modification process were inadequate in
quantity and improper in position and number. The
Preview
FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 Exhibit “9” FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK: X SUZANNE SCHULMAN AS ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED; ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRABINA, AS ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, AS ADMINISTRATOR OF THE Index No.: 611214/2015 ESTATE OF LAUREN BARUCH, DECEASED AND STEVEN BARUCH, INDIVIDUALLY; JOELLE DIMONTE; MELISSA A. CRAI, AND ARTHUR A. BELLI, JR., AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE ESTATE OF STEPHANIE BELLI, AFFIDAVIT OF Plaintiffs, JAMES PUGH, PH.D., P.E. -against- ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD AND COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., D/B/A 1-5" ROYALE LIMOUSINE AND "XYZ COMPANIES NAME BEING FICTITIOUS BUT INTENDED TO BE THE REMANUFACTURERS, DISTRIBUTORS AND/OR SELLERS OF THE 2007 LINCOLN TOWN CAR STRETCH LIMOUSINE INVOLVED IN THE COLLISION, Defendants. X JAMES PUGH, PH.D., P.E., being duly sworn, deposes and says: 1. I am a not a party to this litigation. I have been requested by the attorneys representing the eight occupants of the subject limousine, and specifically by John L. Juliano, Esq., the attorney representing the plaintiff Estate of Brittney M. Schulman, deceased, to make this affidavit to determine the effect of various safety systems in the subject limousine on the mitigation of injuries and prevention of the death of the plaintiff s decedent in the above-cited 1 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 action. My investigation and findings in this affidavit specifically address the injuries and associated analysis for the plaintiff's decedent, Brittney M. Schulman. 2, I am a forensic automotive engineer performing accident investigation and vehicle analysis for over thirty years. I am a licensed professional engineer in New York State and have performed over 5,000 investigations involving various vehicles and the manifestations of defects, malfunctions, and collisions. I have been accepted as an expert and have provided testimony in the District and Supreme Courts of New York, as well as Long Island for plaintiffs and defendants in civil and criminal matters regarding various issues of engineering and motor vehicle accidents and safety. I hold a Bachelor of Science degree in engineering and a Doctor of Philosophy degree in Biomedical Engineering from the Massachusetts Institute of Technology (MIT), Cambridge, Massachusetts. I am the president and director of Inter-City Testing & Consulting Corporation, a forensic engineering firm specializing in analysis of automotive accidents, injury causation, and injury prevention. I have consulted with numerous federal and state agencies, including the National Transportation Safety Board (NTSB) and the National Accident System (NASS), both agencies of the Department of Transportation of the Sampling federal government, as well as with assistant district attomeys of the City of New York and boroughs, as well as Westchester County, and various state highway departments including New York State on highway accidents. I have been recognized as an authority on automotive crashworthiness and operator safety, I have been invited and have appeared on national networks as a consumer advocate to increase the safety of motor vehicles. 3. My analysis and opinions are rendered herein are to a reasonable degree of certainty in science, engineering, biomechanics, ergonomics, and occupant safety. The bases for these 2 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 opinions are contained the Federal Motor Vehicle Safety Standards (FMVSS's), and the preambles to the specific FMVSS's cited. 4. The standard is FMVSS 208 - Occupant Crash which covers in detail primary Protection, those factors that prevent injuries and deaths in motor vehicle accidents, the requirements necessary to be incorporated into motor vehicles to prevent injuries and deaths in motor vehicle accidents, and the testing that has been done and should be done to confirm that the motor vehicles comply with the standards. The severity and specifies of those tests specified in FMVSS 208 provide quantitative markers for the types of accidents in which proper safety systems would reliably prevent deaths and injuries. It must be that the emphasized, however, FMVSS's are MINIMAL standards which are typically exceeded as have by manufacturers, they found that exceeding the requirements of the standards is economical, feasible, and in the interests of their customers. An example is the manufacturers exceeding the crash survivability requirements mandated by the as demonstrated FMVSS's, by the National Transportation Safety Association (NHTSA) New Car Assessment Program (NCAP) Test Reports at least a 5- showing mph delta-V survival greater than that severity mandated by the FMVSS's. 5. The purpose of my examination of the vehicles was to evaluate the crash limousine to determine why itresponded in the manner itdid to the collision forces and how the design and construction contributed to the collision response. My analysis considered the structural integrity of the crash limousine and why and how itdid not protect the occupants as it could have during the collision. In addition, my purpose was to address the construction and design issues relating to increasing crashworthiness in multiple-occupant vehicles such as the subject limousine to prevent or otherwise limit the incidence of injuries and fatalities. 3 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 6. On October 22, 2019, I inspected the 2007 Lincoln Town Car limousine bearing Vehicle Identification Number (VIN) 1L1FM88W87Y616205 and the 2005 Dodge Dakota pickup truck bearing VIN ID7HW58N55S227605 to analyze the response of the crash limousine to collision forces applied to the passenger side of the crash limousine by the truck on July 18, 2015. The inspection of the limousine and truck was performed at the Suffolk County Police Department impound facility in Westhampton, New York. I also inspected the site of the accident, and have driven through the subject intersection approximately once per week for the past 20 years. 7. The purpose of my examination, inspection, and analysis was to determine the structural integrity, or lack thereof, associated with the modification from a passenger car to a limousine, and the relationship of the lack of structural integrity to the biomechanics of the eight (8) young women occupants of the limousine at the time of the accident. My investigation included examination and analysis of the modified design, modes of failure, analysis of the joinery, and measurement of the damage sustained by both vehicles. 8. On February 14, 2020, in Huntington, New York, I also examined and inspected the side impact bar that had been removed from the limousine. These two inspections have allowed me to confirm the findings reported by Jeffrey Lange in his affidavit dated November 11, 2022. 9. The accident occurred on July 18, 2015, at approximately 5:15 pm, on County Route 48 at the intersection with Depot Lane, Southold, County of Suffolk, State of New York, and involved a 2005 Dodge Dakota pickup truck operated by the defendant, Steven Romeo and a 2007 Lincoln Town Car converted into a stretch limousine operated by the defendant, Carlos Pino. Eight unrestrained young women were in the rear seating positions of the limousine. As 4 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 the limousine was in the process of making a U-tum to proceed westbound on County Route 48, the pickup broadsided the limousine almost in the dead center of the limousine. 10. The data recorder in the airbag module in the limousine indicated an impact of 20 g's, and the impact speed of the pickup truck was approximately 50 mph. Gregory Stephens, the accident reconstruction expert produced by the defendant, Cabot Coach Builders, Inc. alleges in his affidavit dated August 29, 2022, that a delta-V for the limousine of 20 mph with a principal direction of force (PDOF) of 90 degrees, and a peak lateral acceleration of 13.9 g's. 11. My inspection revealed significant intrusion of the pickup truck into the passenger's side of the limousine, and very little deformation to the front of the pickup truck. Examination of the pickup truck without any additional information would lead one to believe that this vehicle did not suffer a major frontal impact, and itsrelatively intact condition was dramatic relative to the extensive and deep intrusion damage to the limousine, surely indicating that something was amiss. What was amiss and missing fNm the limousine was any functioning resistance of the limousine to side impact because the front of the pickup truck hit what was essentially an expendable crash cushion similar to the crushable barriers protecting vehicles from hard impacts against Jersey barriers at exits on superhighways. 12. Based on my physical examination of the vehicles, I confirmed that this was a side impact collision that resulted in substantial intrusion of the truck into the passenger compartment of the crash limousine. My investigation revealed that the side impact protection system of the crash limousine failed due to a number of factors associated with the design modifications and implementation of those modifications as performed by CABOT, who converted the subject vehicle from a passenger car into a stretch limousine. 5 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 13. It must be emphasized that such limousines are intended for high occupancy, which in essence is their raison d'etre, and they are habitually and routinely driven with multiple occupants in the rear seating positions. Therefore, the manufacturers and converters have a special duty to protect the occupants, much more so than the manufacturer of the basic vehicle that was stretched and converted to a limousine. This is consistent with, for example, converters who transform production sedans into convertibles, with the understanding and need to strengthen the unibody to accommodate the conversion and to preserve the rigidity of the passenger cage as a space frame originally and strengthened to convert to a convertible to adequate resist intrusion in accidents. 14. Crashworthiness is defined as the of a motor vehicle to protect occupants against ability death and injuries in a foreseeqNe collision of reasonable severity. A t-bone type side collision such as occurred in the subject accident is foreseesNe, because the federal government in clearly FMVSS 208 has mandated protection in side impact collisions and specifies a test for motor a t-bone-type collision. FMVSS 208 has established a delta-V in a rigid vehicles simulating barrier collision at a speed of 30 mph, which is a delta-V of slightly greater than 30 mph due to vehicle from the barrier. Therefore, the federal government has deemed a elastic rebound of the mph as reasonsNe. The delta-V reported as a result of the police delta-V of 30 to 33 20 mph for the much lower than the 33mph investigation was appmximately limousine, reasonsNe delta-V established the federal govemment in the FMV SS's. by side impact crashworthiness, as follows, in §5.2 15. FMVSS 208 specifies requirements for "Impact to a vehicle on either side by a barrier Lateral Barrier Crash Test: laterally Moving of §8. The test specified in §8.1.8 at 20 mph under the applicable conditions dummy moving position adjacent to the impacted side shall positioned in the front outboard designated seating 6 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 standard." meet the injury criteria of §6.2 and 6.3 of this Further, §6.1 states the following: "All portions of the test dummy shall be contained within the outer surfaces of the vehicle passenger compartment" This test for side crashworthiness has remarkable similarities to the truck pickup hitting the side of the limousine with a delta-V of 20 mph, in part because of the massive and undeformable nature of the moving barrier, because the is deformable and should have pickup crushed commensurately if the space frame of the limousine had been adequate, and in part because of the weight discrepancy between the weight of the limousine and the weight of the pickup truck. The police Collision Reconstruction reports a curb weight for the limousine as 6,930 pounds and the pickup truck as 5,030 pounds. 16. In allvehicles, there must be a side impact safety/protection system that prevents and/or should reduce intrusion into the passenger compartment of an opposing vehicle during a side impact. Side impact protection is a system of components and connections that includes the side impact intrusion beam, vertical pillars (labeled front to rear "A", "B", etc.), roof structure, rocker panel/floor structure, and body to frame mounting. The effectiveness of the side impact protection system is a function of the design and integrity of the crash energy management system. The resistance to side impact is a result of the design and construction of a "space frame" which is a three-dimensional structure much like a geodesic dome which resists space" deformation in all directions, and which preserves the occupant "safe or area in which the occupants are seated. 17. My own examination of the crash limousine side impact protection components revealed that the anti-intrusion beam was not properly secured to the vehicle pillars during construction and the poor welding was observed not only on the intrusion beam but was found in other areas of the vehicle construction. Given that the primary anti-intrusion component of the limousine 7 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 failed due to defective welding, that the limousine was not equipped with airbags in the rear seating area, was not equipped with additional materials within the outer skin energy-absorbing of the vehicle to reduce the impact forces from an vehicle such as the and the impacting truck, occupants were not utilizing the restraints, the rear seating area of the limousine was reduced essentially to an unsupervised adult playpen in which anything goes, and, as as the playpen long was not on the road and exposed to oncoming vehicles, was safe enough. However, when the vehicle was on the road, itwas a disaster waiting to happen. 18. The basic principles of ensuring that a vehicle is adequately crashworthy, after the impact has been deemed foreseeable and of reasonable severity, which was the case for the limousine in the subject accident, are the following, covered in $19 through124. 19. Regarding the space frame, which is the primary and most significant component for adequate crashworthiness, the occupant compartment must not collapse or intrude into the passengers' safe zone, meaning that the space frame should be rigid enough not to deform and strike the occupants directly. This requires, as identified above in this affidavit, the design and construction of a space frame of adequate rigidity. An alternate system to significant increase the robustness of the space frame is to seat the occupants in bench seats facing either forwards or rearwards. Such bench seats provide a means of transverse stiffening of the space frame through the structure of the bench frames themselves. Two sets of facing bench seats accommodating three occupants in each bench seat could have feasibly and economically been installed in the subject limousine, which would have provided two separate party areas inside the rear of the limousine. A rigid space frame has been found to provide excellent protection for race car drivers who experience high-g crashes with minimal or no injuries. 8 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 20. The interior passengers' areas of the compartment must be adequately padded and covered, and sharp and hard areas must be eliminated so that, if there is compromise of the space frame and itcontacts the the will occupants, contact not be lacerative or but will give crushing, and absorb in and of itself. energy 21. The interior described in $20 above padding greatly assisted and achieved through the installation of airbags, both frontal, side, and rollover triggered. Such airbags when deployed will transmit any contact with the passengers over a large area of the body, significantly reducing the unit loads, and injuries and and preventing fatalities, preventing unbelted occupants from colliding with each other and with the interior structures of colliding the limousine. Airbags are considered passive restraints and, as such, do not require on anything the part of the occupants to achieve protection from injury, and are also intended to be so restraints" called "supplemental to augment and increase the protection afforded through the use of seatbelts. 22. Seatbelts were mandated to be installed in motor vehicles by the federal government in 1968. General Motors, in a pilot program to demonstrate the effectiveness of airbags, did a study in 1973 involving production vehicles with and fitting airbags, they were so confident of the injury-protection afforded by airbags that they did not even install seatbelts in the The vehicles. results of the study were confirmation of the and efficacy, cost-effectiveness, feasibility of airbags. However, passive restraints did not become standard features in motor vehicles until 1983, when FMVSS 208 required passive restraints to be installed in motor vehicles. Automatic seatbelts satisfied the requirement, but itbecame through efforts apparent, by consumer advocates including myself, that those automatic seatbelts were inferior to non-automatic seatbelts in their abilities to prevent deaths and injuries. itbecame apparent around Therefore, the year 2000 that the airbags were the most economical and feasible means of the satisfying 9 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 passive restraint requirements of FMVSS 208, the totality of which is contained in approximately 100 pages, and the preamble to FMVSS 208 comprises approximately three times that, or approximately 300 pages. 23. The contents of this affidavit are intended to summarize the materials contained in those approximate 400 pages as they relate to the subject vehicle and to the subject accident. FMVSS became codified as law only after extensive discussions, debates, compromises and conferences took place between representatives of the federal government, state governments, local govemments, consumer advocates, advocates for the automotive industry including converters of basic vehicle for specific applications, representations of insurance companies, and any and all others having a financial stake in the legislation. Certain proposed requirements were necessarily watered down, such as the requirement that conversion vehicles, if produced in sufficiently small numbers, be exempt from some of the regulations. This, however, does not preclude converters from economically and feasibly applying tools from the established toolbox so that their converted vehicles have the requisite features to safely serve their intended functions, which is basis for requirements of product liability. The Lincoln Town Car was certified as complying with all applicable FMVSS's in effect at the time of manufacture, which included side impact requirements, and the converter produced a vehicle that was NOT in compliance with those same standards with which the basic vehicle complied. 24. The area between the inner and outer panels of the rear portion of the limousine should have been filled with energy-absorbing material such as expanded polystyrene foam (EPS). An adequate width of EPS, estimated and suggested to be at least 6 inches, would significantly increase the side crashworthiness of the limousine. 10 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 25. Occupants must be restrained with three-point combination lap and shoulder harness seatbelts at the very least, with combination emergency locking and inertial retractor mechanisms. Seatbelts ensure that the occupants experience the entire ride-down of any compromise in the space frame and rolls the forces down to non-injury producing levels. Of course, seatbelt usage must be mandated and enforced by a responsible adult, namely the driver of the limousine, who necessarily is in charge of the limousine. Without such supervision and mandating of seatbelt usage, the rear passenger compartment of the limousine is reduced again to an unsupervised adult playpen. The warnings to wear the seatbelts must be highly visible, numerous in quantity, and color-coded to draw the attention of the occupants. The seatbelt warnings in the converted limousine were defective and virtually worthless. The testimony from a surviving occupant was that the seatbelts were not readily available and no one enforced their usage. 26. When a motor vehicle such as the subject limousine is exposed or involved in a foreseeable accident of reasonable severity and injuries are sustained, itis invariably because of violation of at least one of the requirements detailed in 119 through 125 immediately preceding this paragraph. 27. The subject limousine, however, lacked all of the required systems mandated for adequate crashworthiness, and, even ifthe construction and welding were not defective, there stillwould have been damage to the rear occupants. The subject limousine therefore was bodily inadequate with regard to crashworthiness, particularly in a side impact such as occurred totally in the subject accident. 11 ... FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 28. The remanufacturer of (Cabot) (converters) the standard Lincoln Town Car into a stretch limousine had a large tool box at their all of disposal, which had proven to be effective in ensuring that the limousine would be and crashworthy. they failed to open the tool box and failed to utilize the tools in that box, allof which are enumerated in119 through125 of this affidavit. 29. on §28 and the affidavit Following above, by of Lange dated November from 11, 2022, which I am paraphrasing as follows in this paragraph: The side impact protection system in the subject limousine relies on an anti-intrusion beam "B" "C" that, in part, holds the and structural pillars in position. The anti-intrusion beam failed to reduce intrusion and was just pushed out of the way, rather than performed in the itwas anti- having way designed and intended. The intrusion beam was attached to the limousine structure. defectively The was of poor welding quality, incomplete, and insufficient. Several of the fillet welds used to join the brackets securing the anti-intrusion beam and pillars for the stretched portion of the crash limousine exhibited what is known as a lack of penetration. also known as a lack of fusion defects which occurs when the welding procedure does not result in a homogeneous seam as discussed above. Because of welding defects (inadequate similar to those welding) that caused the detachment of the anti-intrusion beam, parts of the rocker panel became detached The rocker panel is a significant part of the crash energy management system which is integral to the side impact protection system. In the event of a side impact intrusion prevention collision, and/or mitigation and crash energy management are issues. To protect the key safety occupants during a collision, crash energy has to be managed and diverted around the passenger compartment. In this case, the structure of the limousine was not connected and the sufficiently, energy inanagement system, altered from the original manufacturer's failed. The rocker panel was design, inadequately mounted and contributed to the failure of the anti-intrusion system and the inability 12 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 of the management system to redirect collision forces. Other issues the anti- energy conceming intrusion system included the deformity of the which moved fmm its position flooring mounting inward toward the vehicle longitudinal centerline. This occurred, in part, because of an improper design: the two mounts securing the flooring were improperly placed far apart and from the away pillars that there was too much stress applied to them to stay in place regardless of how they were welded. Tack or spot welds are a form of temporary welding to hold components together in anticipation of more substantial welding or other form of bonding. Tack welds are used in the fabrication process for positioning items so that one can get them in the right place before making a permanent, homogenous weld, which cannot be taken apart. The tack weld is merely one step beyond using a clamp to join two items. The essence of quality and non-defective welding is to achieve a weld that, when the welded item is overloaded, the weld itself does not fail, but the associated metallic components fail. My examination of the rocker panel on the passenger side indicated the welds were consistent with tack welds and not sufficient to properly secure and hold the rocker panel together. The lack of structural integrity in the rocker panel contributed to the failure of the side impact protection system. In the subject limousine, the rocker panel was not connected to frame and was found to be loose and free-floating, and the welding on the modified portion of the rocker panel was of such poor quality, inadequate welding, penetration, and other weld related defects that itresulted in the compromise of the rocker panel; thus contributing to the failure of the side impact protection system. The section of the rocker panel that had come apart at the welds revealed insufficient penetration, meaning that the metals were not joined sufficiently. These welds not only failed to replicate the original equipment manufacturer joinery, but these welds failed to replicate the quantity and quality of welds in the manufacturer's original construction. Aside from the welding defects, I also 13 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 determined that there was no additional secondary structure, such as floor beams or roof beams to redirect crash energy and control the of the posts. There were no additional lateral positioning beams installed in the floor to control the of the pillars as the floor rolled upwards. positioning When the rocker panel and the mid-compartment flooring were rolled away from the substructure of the crash limousine, these components were no longer a part of the anti-intrusion system. This reduced the ability of the limousine to resist the forces, to distribute the intruding collision energy to other areas, or to allow the crash limousine to move further on the possibly roadway as part of the energy absorbing process. It allowed the truck to move inward, into the crash limousine's passenger compartment, and to push the pillar into the interior components, which interacted in a fatal and injury-productive manner with the occupants. 30. My own inspection showed that the side impact protection system failed in part due to improper/incomplete construction assembly including defective welding, lack of additional structure reinforcements in the roof and other areas, and insufficient securing of the body to the structure due to inadequate mount connections, quality, and quantity, and failure of the rocker panel system. All of this significantly compromised the ability of the passenger area to react as a space frame as mandated for adequate crashworthiness in paragraph 18 above. 31. It ismy opinion, within a reasonable degree of professional engineering certainty, that the side impact protection and anti-intrusion system in the crash limousine failed. The failure was in part the result of poor-quality welding ("woefully inadequate and unacceptable), or otherwise improper welding to secure the anti-intrusion beam. It reduced the rigidity of the structure, and as a direct result, itdid not keep the pillars in place. 14 FILED: SUFFOLK COUNTY CLERK 11/28/2022 05:31 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1173 RECEIVED NYSCEF: 11/28/2022 32. It isalso my opinion, within a reasonable degree of professional engineering certainty, that the side impact protection and anti-intrusion system in the crash limousine failed, in part, because the midbody mounts used by CABOT in the modification process were inadequate in quantity and improper in position and number. The