In July 2004, Robert Fabian purchased two Fulmer AF-50 motorcycle helmets and sold one to a friend. While wearing the helmet, Fabian’s friend was involved in a motorcycle accident and suffered a fatal brain injury. Fabian later learned that in August 2002, the AF-50 model helmet had failed safety testing by the National Highway Traffic Safety Administration (NHTSA) mandated under Federal Motor Vehicle Safety Standard 218 for DOT certification.
Fabian, individually and on behalf of consumers who purchased AF-50 helmets after the date of the failed NHTSA test, sued the manufacturer, Fulmer Helmets, Inc., alleging fraudulent and negligent misrepresentation, breach of implied warranty, and unjust enrichment. The plaintiffs contended that they had relied on Fulmer’s misrepresentations that the helmets were DOT-approved, and that the helmets failed to provide adequate protection and were improperly labeled.
The plaintiffs were prepared to show that during the August 2002 testing, some of the AF-50 helmets failed the impact attenuation test, a key safety test measuring the degree to which a helmet can withstand penetration and attenuate the force of an impact. NHTSA also found that the helmet failed a labeling requirement because the DOT symbol was placed too high on the rear of the helmet. Despite the failed testing, the plaintiffs claimed, Fulmer continued to promote the helmets as “DOT approved” and took no steps to notify consumers of the safety issues or to recall or redesign the helmets.
The plaintiffs also alleged that Fulmer continued placing “DOT approved” stickers on the helmets to conceal the fact that they had failed NHTSA testing.
Fulmer moved to dismiss, arguing, among other things, that (1) the claims were preempted by federal law and (2) Fabian failed to state a claim because the helmets he purchased were large-size AF-50 helmets, while those that failed the 2002 testing were small-size AF-50 helmets. The trial court rejected the preemption argument but granted the motion based on failure to state a claim. The court reasoned that the plaintiffs’ claim was implausible on its face because the large helmets had passed prior safety testing in 2000, and it was the small ones that had failed the 2002 testing.
Reversing in part and remanding, the Sixth Circuit Court of Appeals reasoned that different-sized helmets of the same model might perform the same, and, if so, the failed 2002 test might have exposed a defect in both size models.
The parties subsequently settled. Each class member has the option of receiving a replacement helmet from Fulmer or a cash payment of $25. The settlement also provides for $2,500 in incentive pay for Fabian and up to $415,000 in fees and costs.
Citation: Fabian v. Fulmer Helmets, Inc., No. 2:09-cv-02305 (W.D. Tenn. Apr. 30, 2012).
Plaintiff counsel: AAJ members J. Gerard Stranch IV and James G. Stranch III, both of Nashville; Simon B. Paris, Philadelphia; and David J. Cohen, Penndel, Pa.