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Judge and Gavel
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  • Richard L. Duquette

Made in the USA: Part II

How Consumers and Bicycle Retailers Can Avoid Defective Foreign Bicycles

In 2012, the U.S. imported over seven million bicycles, primarily from China and Taiwan. While many of these bicycles appear attractive, some are defectively designed and manufactured. These defects harm unsuspecting bicyclists. The cost to obtain justice through the U. S. litigation process can be prohibitive. So, my focus is on helping identify a few general safety and legal issues from the bicyclist's point of view, with an eye toward prevention of harm and costly litigation.

Often, I read or hear about the aerodynamic weight esthetics of carbon fiber bicycles. While these factors generate profits for corporations who design and manufacture bicycles, genuine safety should be paramount.

This article and Podcast are part of a two-part discussion of some of the issues to raise our awareness, based on a true case study involving a defective carbon fiber fork that injured two bicyclists. The intent of this article is to protect bicycle consumers and burdened USA bicycle retailers, and to offer solutions.

The Judicial System: "Toothless Tiger" The public thinks a bicyclist will get a fair shake in court against the bad guys. The problem is that in the last thirty years of tort reform, a majority of judges are conservative appointees, coming from careers in the insurance defense industry. (One local Jurists Fair Political Practice and Disclosure Form proved he'd invested millions of dollars in various insurance companies.)

These judges know it's too expensive to litigate. They let their defense lawyer brethren bill the insurance industry, and simultaneously grind down the injured bicyclist. As you know, injured bicyclist attorneys work on a "prayer" called a "contingency fee" program. No recovery, no fee. Plaintiff's lawyers advance costs, at great financial risk. This system is good for helping make sure that cases brought have merit, but it can also make it very difficult for even meritorious cases to prevail when there is a challenge and resources are drained.

Besides this, the budget crisis is causing courtrooms to close, and the resulting delays have the effect denying access to justice.

It's important to find a courageous judge who will stand up to the insurance industry and enforce principles of economic litigation. (See Fairmont v. Superior Court).

Taking Action: "David and Goliath": The retailer and bicyclist can fight back. Here's how:

  1. The Consumer: The retailer and consumer can refuse to buy a foreign made bicycle unless it meets certain transparent and objective criteria. Here are a few:

    1. Each composite bicycle should come with a written certification that is visible, serial number (frame, fork, stem, handlebar) originate from a batch that were designed, tested, and manufactured by qualified named engineers published online.

    2. The design and test results of said composite products areverifiable online.

    3. The quality control and manufacturing process is verifiable online.

    4. The division of labor responsibilities between the designer and manufacturer are verifiable so there is no "finger pointing". Specifically define who the designer is and who manufactured it.

  1. The Retailer: Because the retailer has slightly more bargaining power than the individual consumer, they should work to demand more concessions and protections in their contracts when they agree to import bicycles. Some examples include:

    1. Require the designer and manufacturer to indemnify (pay back) and hold harmless (without fault) the bicycle retailer from defects, warranty claims, and personal injuries. Require periodic payments for such.

    2. Stop false advertising. Require the designer and manufacturer to certify any representations in their sales literature. This means details are required. (In a recent case, a designer distributed sales literature that stated its forks were "titanium enhanced" when the reality was that the titanium was not visible to the human eye without a microscope. Admittedly, it provided no structural benefits to the fork.

    3. Require the designer and manufacturer to certify the quality control and testing.

    4. Explain what are normal consumer expectations. Require the designer and manufacturer to certify the lifetime of each product, in terms of number of miles ridden and/or years.

    5. Require designers and manufacturers to certify that an independent laboratory periodically review and test the facilities and product, much like crime laboratories are independently accredited. This sort of oversight acts as something of a "Good Housekeeping Seal of Approval."

    6. Don't let them hide overseas. Require the foreign designer and manufacturers disclose if they are doing business in the USA, the locations, and that they will accept service of legal process by an appointed agent and comply like CT corporation. This will reduce the cost of litigation to the consumers, retailers, court system and will expedite justice. Currently it takes almost $10,000.00 and six monthsjust to serve a foreign defendant with a lawsuit. When people talk about tort reform, maybe this is a reform they should consider.

    7. Require designers and manufacturers to certify a "10 day no questions asked" replacement program, that includes the cost or processing.

    8. Require a regularly updated, online list of all product recalls, warranty returns, and lawsuits.

    9. Require foreign designers and manufacturers to post a litigation bond to pay for it.

    10. Require foreign designers and manufacturers disclose the details of their product liability insurance coverage, and that they be USA admitted carriers rated A+, of 5 million in limits. Require the foreign designer and manufacturer to disclose any subcontractors used.

    11. Require all designers and manufacturers to retain electronic files for fifteen (15) years.

    12. Require all designers and manufacturers to explain if they merely meet or exceed CPSC fork tests.

    13. Require all designers and manufacturers to allow for free and unrestricted testing of composite products.

    14. Require each product come with a free digital manual that contains the above information.

Conclusion: Capitalism in its simplest form is defined as free enterprise. Supply will meet demand with the above criteria. Safety and quality will prevail. In the end, protection of the USA retailer and the consumer are insured. Protection of the USA small business person and the consumer is paramount. This includes local bicycle shops, chains, consumers, and athletes.

If you're injured, hire an experienced trial attorney. Ride Safe, Ride Strong! * 760-390-5234 ©Richard L. Duquette, Esq. All rights reserved April 25, 2017


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