Products Liability – 1990s Aluminum Frame Failure

I ran across this document recently and SO MANY memories came flooding back.

Cannondale sent this Service Bulletin around to shops in 1994. At that point I was in the middle of the case of Surloff v. Cannondale. Dr. Arthur Surloff and his wife Cheri were a couple of bike-loving folks who lived on the intercoastal waterway in Florida. They liked having the 1st of all the newest bike things- the first carbon fiber, the first aluminum frame etc… I think they had like 28 bikes hanging around their gorgeous home like sculptures. When Cheri learned Cannondale was making an aluminum frame bike she called Cannondale directly to order one for husband. Dr. Surloff was a tall guy who needed a tall bike and Cannondale made one for him, which went up on their wall and was ridden from time to time.

On the day of his crash Dr. Surloff took the Cannondale down & went out for a ride. At one point he was going around one of the many traffic circles in South Florida, roundabouts, and a “little red car” came flying up from behind. Dr. Surloff thought he was in danger and looked for a place to get out of the road. He was riding along the inside of the circle, delineated by a curb, when he came to an opening to his left towards the middle of the circle. He went in, but, unfortunately it was actually an EXIT and there was a curb guiding traffic OUT of the middle of the circle which Dr. Surloff hit with the Cannondale.

The bike fell apart at impact. The top tube and down tube separated from the head tube and Dr. Surloff ended up doing a face plant into the pavement – a moment in time that altered the rest of his life.

He was taken by ambulance and diagnosed with a TBI – a brain injury. He came out of that a different man- where he had once been a brilliant doctor, a trumpet player of some renown, and a wonderful husband and father, he came to find that he could not practice medicine any longer – he faced physical, mental and emotional challenges. He had been a neurologist – his wife was a neuropsychologist. We had a video of Dr. Surloff giving a deposition prior to the crash and he was the consummate professional. He tried to do a deposition for a patient some years after the crash and he fell apart, leaving the room in tears….

His wife called me shortly after the crash. I had written a piece for Adventure Cycling about bicycle products liability cases and she tracked me down, at home in Ohio on a Friday evening. I’m not licensed in FL so I enlisted two top notch FL lawyers, John Romano and Mike Eriksen. I was admitted to the FL bar “pro hac vice” or for the purpose of that one case. We started lining up experts, including Jim Green. Jim is an engineer with an expertise in bicycle crash reconstruction who is in NC. I flew to FL the Saturday after Cheri called and met Jim at the then little Fort Lauderdale airport. Dr. Surloff was to meet us… he went to the wrong gate, fell asleep in the waiting area and eventually found us. Like many folks suffering a brain injury he did not…immediately …present as someone with a brain injury. We didn’t appreciate the extent of his deficits until he couldn’t find his car, then got lost getting out of the parking lot and couldn’t find his way to his home. [Maybe letting your brain injured client pick you up at the airport was a “young lawyer mistake.”]

We started on a multi-year journey that day in which we would litigate for several years with Cannondale and face defenses that included comparative fault – a claim that he was going to suffer a head injury ANYWAY b/c he hit the curb – a claim that the bike was not defective- and even a claim that, as a neurologist, Dr. Surloff knew how to fake, and was faking, his injury!!

We retained other experts, including a PhD Metallurgist from Duke who used an electron microscope to shoot images of the frame which showed a build up of stresses at the fracture point, indicative, our expert of improper heating treating. We blew up one of his slides to the size of Door for trial presentation. We took many depositions, including flying up to Cannondale’s HQ, in NY at the time, and learning how Cannondale’s processes for developing, testing and manufacturing bikes worked at that time.

Dr. Surloff’s frame was one of the early aluminum frame bikes Cannondale created. One key to the case was that they tried to use the same basic diameter tubing as they would use to make a metal frame bike… didn’t work… they went to the Fat tubing shortly thereafter… but had some issues with skinnier versions… This was also a very LARGE frame, which added to the likelihood [foreseeability] that this frame would fracture.

During the course of litigation this Service Bulletin came to our attention when a bike shop buddy of mine found it in his fax machine one morning. He knew I was suing Cannondale and sent it over to me. The document points out that Cannondale was aware that frames could fail, needed to be inspected for cracks/failures, and were likely to fail right at the point where Dr. Surloff’s frame failed… We were certainly going to use that in our case in whatever way we could!

The improper heat treating was also a key – one of the coolest things I did in this case was to spend some time on the phone was Gary Klein of Klein bikes. Klein had sued Cannondale over their use of aluminum frame tech. He walked me through the potential issues and helped me develop a plan for cross examining the Cannondale folks during depos. What a fantastic moment!

[Did I end up buying a Klein Mantra Comp mountain bike? yes… yes I did…]

[Did I have beard from 1975 – 2004 or so? Yes… Yes, I did…HA]

In the end, we were gearing up to go to trial some 4 years after the crash. We had our experts. Our team had spent $100K+ on experts… we heard that the defense spent $250K+ [1995 dollars] on theirs. Now, all the defense expenses were covered by Cannondale’s insurer. When you represent the plaintiff, the victim, all of those expenses come out of YOUR pocket… However, we knew that a doctor/specialist who could not practice medicine presented a very large risk to Cannondale and its insurers.

On the eve of trial one of our experts made a “find” in his old files that led the defense to the negotiating table!

Our expert, Jim Green, had been in a case involving a Quick Release failure. [QR cases were all the rage for a while… look up “lawyer’s lips“]. The defense expert had been an expert in Jim’s QR case as well. To “prove” how effective the QR was the defense expert took Super Slo Mo videos of HIM…on a BIKE… running into a CURB at various speeds… in each video the fork flexed and the tire hopped over the curb… his point was to show that the QR did not release despite more speed…

Our expert remembered that he had those videos as we were getting ready for trial. These old VHS tapes were critical… in OUR case the defense expert had testified that the mere act of running into the curb meant that Dr. Surloff was going to crash and likely suffer a head injury… He testified that he did not even want to try to recreate the crash by hitting the curb with a live human on a bike because of his fear that his stunt guy would suffer a brain injury! These videos from the QR case provided Super SLO MO proof that his theory in OUR case was…complete malarkey… and also proved that a solid, non-defective bicycle should HOP THE CURB…. we hit them with these videos, which we were going to use on cross examination, just before trial and the case settled “on the courthouse steps” for significant money…

Dr. Surloff retired… he never practiced medicine again. He did play his trumpet quite a bit – and passed away [relatively young – making me wonder about the impact of his brain injury on his life expectancy] in 2011.

Just a fascinating case for a young lawyer to “get” and be a part of. Teaming up with renowned trial lawyers like John and Mike, and fantastic experts, was like getting paid to go to Grad School.

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