Amy Blankenship

General Counsel

February 5, 2020

Via electronic mail

Kaci Sokoloff
Senior Producer
CBS This Morning
524 West 57th Street
New York NY 10019
KLS@cbsnews.com

Re: Inquiry about Big Kid Belt-Positioning Booster/Side

Impact Testing

Dear Ms. Sokoloff:

Evenflo Company, Inc. (“Evenflo”) takes its role in the juvenile products
industry seriously and values the trust that consumers have placed in our nearly 100-
year-old company to provide safe, effective, affordable, easy-to-use child restraints
and booster seats. 1 Accordingly, Evenflo appreciates the opportunity to comment on
the subject matter of your upcoming news segment. CBS This Morning’s request for
comment on ProPublica’s purported investigation of the Big Kid belt-positioning
booster allows Evenflo to explain the important contributions the company and its car
seats, like the Big Kid, have made and continue to make to the field of child-passenger
safety.

As a consumer products provider, Evenflo, like other car seat manufacturers,

can occasionally be a target for lawsuits. After all, we manufacturer products
designed to help protect children in motor vehicle crashes. Like seat belt-restrained
adults in motor vehicle crashes, even children in safe, quality car seats can be injured

1
A belt-positioning booster like the Big Kid is a wholly different product from a 5-point or
harnessed car seat; the design intent of a 5-point car seat is to provide restraint to the child via
the internal harness in the car seat itself. On the other hand, the design intent of a booster seat
like the Big Kid is to boost the child so that the vehicle belt system fits them properly. Indeed,
there is no internal harness on a Big Kid to accomplish restraint. Hence, the primary restraint
for a child sitting in a belt-positioning booster seat is the vehicle seat belt system—not the
plastic booster seat upon which the child sits. That is true for all belt-positioning boosters,
regardless of manufacturer.
in crashes, especially severe ones. The mere occurrence of an injury in a horrific crash
should not, however, form the basis for condemning the car seat in which the child
was seated.

Evenflo feels great sympathy for families and children involved in motor
vehicle crashes, especially where serious injury occurs while a child is seated in a car
seat we manufactured. Such concern is a primary driver for the work we do. After all,
we are parents and make car seats for our children and grandchildren too. If
sympathy was the issue in our couple of Big Kid lawsuits, we would have no dispute to
litigate and there would be no need for a trial. Evenflo defends the Big Kid seat in the
two cases 2 upon which ProPublica’s article is predicated because our product
performed as it was designed to do and did not cause the child’s injuries—the severity
of the crash and/or driver error did. 3 Indeed, the Big Kid belt-positioning booster
“boosted” these children so that the vehicle belts could properly fit the child.

Some of the questions CBS and ProPublica have posed relate to pending
litigation. Evenflo’s ability to respond to those questions is necessarily limited by its
involvement in those court proceedings. In fact, the entire inquiry into the Big Kid
stems from materials provided to ProPublica by the very plaintiffs’ lawyer who is
suing or has sued Evenflo in the Big Kid cases referenced and who seeks to gain
considerable monetary benefit from his involvement in those suits.

When a news story is biased to one side of an ongoing legal dispute and has the
potential to discourage consumer use of a vital piece of child safety equipment,
diminution of safety can result. Indeed, Evenflo cautioned ProPublica of that possible
result:

Most importantly, if the article you intend to publish

maintains its current tone and biased “facts,” Evenflo is
concerned that the article may cause a caregiver not well-
versed in certain aspects of child-occupant safety to avoid
using a belt-positioning booster (“BPB”) (as they all are
essentially the same in functionality and design, regardless of
manufacturer), and decide to place their young child in only
the vehicle seat belt system. The result of this reaction could
be catastrophic, as historical data confirms a child is much
safer in a BPB than in the vehicle belt system alone.

2
Evenflo has been selling the Big Kid belt-positioning booster for over a decade and
millions of children have used this seat.
3
For example, the crash underlying the Brown v. Evenflo case is more severe than 98% of
all side-impact crashes. In the Arias v. Evenflo matter, which involved a collision of the
parent’s vehicle with a semi-truck after the parent failed to yield when crossing a multi-
lane road, the crash was more severe than 99% of all side-impact crashes.
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(Letter from Amy Blankenship to Patricia Callahan and Daniela Porat, January 13,
2020) (emphasis added).

Evenflo is similarly hopeful that CBS understands the limits of what Evenflo
can share in responding to your questions. We expect that a respected news source
like CBS will not capitalize on our inability to discuss ongoing litigation or
confidential documents to present a one-sided news report that could have a
detrimental impact on child-passenger safety.

In furtherance of a well-balanced presentation regarding belt-positioning

boosters like the Big Kid, therefore, I attach correspondence Evenflo previously sent
to ProPublica, in the event ProPublica has not provided it to you. When reviewing
these materials, and speaking with ProPublica on Thursday, please be aware that the
area of child-passenger safety is complex and subject to significant regulation. To
distill its complexities and nuances into a morning news segment will be challenging
at best. Neither ProPublica reporters nor the Plaintiffs’ counsel from which they
sourced the bulk of their article are car seat engineers, designers, regulators or child-
passenger safety technicians. Accordingly, their expertise in explaining the Big Kid, its
history, its design, its performance and Evenflo’s testing protocols to your viewing
audience is questionable at best.

While the attached letter addresses several of the topics CBS and/or ProPublica
have raised, Evenflo responds to the specific questions posed in your February 3,
2020, email below.

• Specifically, why did Evenflo change the minimum weight

guidelines for the Big Kid Booster seat from 30 points to 40
pounds?

The United States Federal Motor Vehicle Safety Standard (FMVSS) 213 that
governs child restraints and booster seats allows for belt-positioning boosters, like
the Big Kid, to be used with children 30 lbs. and up. Other manufacturers provide
similar booster seats with the same size requirements. Evenflo’s Big Kid continues
to comply with all applicable federal safety standards in the United States.

In contrast, Canada’s equivalent safety standard, CMVSS 213, provides a

minimum weight for belt-positioning boosters of 40 lbs. For that reason, Evenflo has
for years provided different labeling and instructions for the Big Kid seats sold in U.S.
versus Canada. The seats sold in these countries are identical in design, but for
printed materials.

Consequently, to avoid the possibility of a technical non-compliance if U.S.

labels and printed materials are used with a Canadian seat on the assembly line, in
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late 2019, Evenflo initiated a harmonization project of all printed materials for the Big
Kids sold in the United States and Canada. This harmonization project had been
considered previously in the last decade or so that Big Kid was sold in both countries,
but decision-makers at the time ultimately concluded there was a continued need for a
30-lb. Big Kid in the United States for children of a certain size and maturity level. So,
the two different sets of printed materials continued.

Despite the harmonization initiative, the Big Kid, when used properly with the
vehicle belt system, provides a vital component of a safe restraint system for children
30 lbs. and up in a variety of reasonable foreseeable crashes, including frontal, rear,
near-side, far-side and rollovers. The decision to harmonize all printed materials for
Big Kid was made simply to increase assembly line efficiency and accuracy and to
eliminate potential non-compliance situations.

• And why was this action taken years after an employee urged
management to do so and years after the company was put on
notice (via lawsuits) of children being severely injured in side
impact crashes while in a Big Kid Booster?

Evenflo disputes the accuracy of the above characterization that an employee

urged the company to change weight limits on the Big Kid. It is based on an
incomplete summary of witness testimony about ongoing litigation.

In any event, the possibility of harmonization for the printed materials for
Canada and the U.S. Big Kid seats has been discussed over the years, and consensus
among decision-makers was, until the recent change, to maintain the status quo. One
of the primary reasons for continuing to provide a 30-lb. Big Kid was because there
are some children who are tall for their age, have outgrown the height requirements
for their harnessed child restraint, are under 40 lbs., and are mature enough to use
the vehicle belt system. The Big Kid is a good option for these children. Importantly,
Evenflo has sold the Big Kid for over a decade and has product testimonials from
caregivers of children of all sizes, including those under 40 lbs., who have survived a
variety of crashes.

Evenflo also disputes the assumption underpinning your question that children
who have been injured in severe far-side impact crashes while seated in a Big Kid seat
were injured due to any issue with the Big Kid or the fact that the child was under 40
lbs. at the time of the crash. Rather, the severity of the crash and/or driver error are
the primary causes. Indeed, one of the lawsuits referenced by ProPublica arose after a
mother attempted to cross a multi-lane road alongside the highway and failed to yield
to an oncoming semi-truck. The result of her driver error was a very serious crash—
more severe than 99% of tow-away accidents—and the adults in the vehicle were also
severely injured.

There is nothing unique about the Evenflo Big Kid as compared to other belt-
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positioning boosters—with minimum weights of 30 and 40 lbs.-- on the market in
terms of functionality or design intent: they are designed to properly boost a child in
the vehicle so that the vehicle restraint system will fit the child properly. Accordingly,
to condemn one belt-positioning booster is to condemn them all.

Evenflo will not comment on any ongoing litigation, and believes that all
parties to ongoing litigation should try their disputes in the appropriate judicial forum
and not in the court of public opinion. Accordingly, please be aware that the details of
the lawsuits ProPublica relies upon were provided by plaintiffs’ counsel currently
involved in Big Kid lawsuits against Evenflo and the bias of that source should be
considered when including any details from their complaints and court filings in your
report, especially if presenting them as “facts.”

• When the changes were made to the owners’ manual, what outreach
was done to customers who had already bought the product? Can
you provide us a copy of any correspondence that was sent to
existing customers? While the packaging of be Big Kid Boosters
states for kids 40 pounds+ we found a label in a Portland, Oregon
store indicating the minimum weight limit was 30 pounds. Why is
there lingering confusion about the weight requirements years after
this change?

As with other updates to printed materials when there is no safety impact to

children, the change from a 30 lbs. to a 40 lbs. minimum weight on U.S. Big Kid seats
was implemented as a running change and existing inventory of the printed materials
in the U.S. is being utilized. The Big Kid seat complies with U.S. regulation at either
minimum weight. In addition, the Big Kid, when used properly with the vehicle belt
system, provides a vital component of a safe restraint system for children 30 lbs. and
up in a variety of reasonable foreseeable crashes, including frontal, rear, near and far-
side and rollovers. We have the company records to substantiate this position.

In addition, no change was made to the design of the Big Kid seat itself with the
update to the printed materials. The change to printed materials for the seat was
made only to harmonize and eliminate the possibility of a non-compliance in Canada.
Accordingly, there was no need to provide any update to U.S. consumers when the
change was made. The Big Kid continues to meet or exceed all government safety
standards and Evenflo’s own specifications, including side and rollover testing, which
exceed government requirements.

• Additionally, why did Evenflo adopt a 30-pound minimum in the

U.S. when Canada required a 40-pound minimum and your
product had the been subject to recalls in Canada for safety
concerns? Why not a universal standard?

The U.S. safety standard for car seats—FMVSS 213—and the Canadian safety
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standard for car seats—CMVSS 213—have some similarities and some differences. The
minimum weight for belt-positioning boosters is one area where the two standards
diverge. Another example is that tethers are required to be used in forward-facing
harnessed seats in Canada; in the U.S., tether use is not required. There are many
other distinctions.

The standards were drafted by regulators in each country and a universal

standard does not exist. This is not uncommon as to a variety of juvenile products
sold in Canada and the United States—two different standards apply to the same
product. If you sell the product in both countries, it must comply with both sets of
requirements.

While Evenflo does not know the basis for your assertion that we have had
recalls in Canada for safety concerns on the Big Kid, the company did conduct a non-
compliance recall several years ago when the U.S. labels for the Big Kid were
inadvertently used on a small lot of Canadian belt-positioning boosters. That is the
very type of non-compliance situation that Evenflo wants to avoid happening again;
accordingly, we initiated the harmonization project of printed materials on the Big
Kid.

• Regarding Evenflo’s “Side Impact Test Standard” as advertised

on the side of the Big Kid booster packaging. Can you please
provide criteria for these tests and, given the absence of a federal
standard for a side impact crash test, what standard Evenflo
uses?

Our January 13 response to ProPublica answers these questions:

FMVSS 213 is a robust test. It simulates a 30-mph crash with

forces the equivalent of dropping your vehicle off a multiple-story
building on its front end. It is, however, only a frontal crash test.

In the mid-2000s, Evenflo developed a proprietary far side-

impact test for car seats in the absence of a federal safety standard.
Evenflo developed this side impact standard after consideration of
several factors. Moreover, the forces in Evenflo’s side impact test are
like those in the NHTSA side impact test for vehicles. To our knowledge,
Evenflo was the first car seat manufacturer to do such side-impact
testing across all platforms of car seats it sold.

Evenflo marketed this pioneering step to its consumers. The

company wanted to let its consumers know that the company goes
beyond that required by the federal government to help ensure safety. 4

4
Evenflo is also one of the first car seat manufacturers to create a test protocol for its seats
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 ...

This is the idiomatic situation of being damned if you do and

damned if you don’t. As a car seat manufacturer, Evenflo would have
been criticized for simply relying on the FMVSS 213 federal test
standard as doing only the minimum required by law. Instead of that
criticism, [ProPublica attempts] to poke holes in the side-impact testing
Evenflo has developed and utilized. [It asserts] that results show
children could sustain serious injuries in real side impact crashes,
despite passing results under our side-impact rubric, and that in
Evenflo’s side-impact tests of the Big Kid, the child dummies “careen”
far outside the confines of the seat. 5

In a severe side impact crash, a child will not remain totally

within the confines of a harnessed seat or any booster seat made by any
manufacturer. In fact, older children and adults using only the vehicle
seat belts will also not be fully restrained by the shoulder belt in a severe
side impact crash. They will move similarly to a child in a booster seat.
Furthermore, there is potential for head contact or other injury in a side
impact crash for children in harnessed seats, any BPB, or older children
and adults in only the vehicle lap and shoulder belt. Moreover, the
result in a severe crash is unchanged and the injury almost certainly will
not be different if the child weighs 40 pounds as opposed to something
less than 40 pounds with the lap and shoulder belt properly positioned
on the child. These kinematics are largely inescapable if the severe
crash is a far-side impact.

As of today, there still is no federal side impact dynamic test

standard. Indeed, NHTSA has struggled to develop a side-impact
standard for over a decade. No standard has been proposed to address
far side impacts—only near side impacts—and even that is not yet part
of the FMVSS 213 regulation. 6 Accordingly, Evenflo continues to test its
seats under the far-side testing protocol it has developed, as it continues

to simulate a rollover event.

5
ProPublica has stated that it intends to publish videos or still photos derived form side-impact
tests provided to it by plaintiffs’ counsel in open Big Kid lawsuits. As you surely are aware,
videos of sled testing can sometimes look extreme to a layperson—whether depicting side
impact testing or FMVSS 213 testing. Evenflo encourages ProPublica [and CBS] to calibrate
its readership [and viewership] by including some FMVSS 213 photo and video references so
that [consumers] can see the environment and test dummy kinematics in certification
environments as well.
6
Evenflo has already conducted developmental testing under the proposed FMVSS 213
side impact standard and will be ready to implement the testing as required by NHTSA.
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 to believe that this testing advances child-occupant safety.

(Letter from Amy Blankenship to Patricia Callahan and Daniela Porat, January 13,
2020).

• We have asked a medical expert in child car seats to review video

of your crash tests and has concerns, so any further information
you’d like to provide on this would be appreciated.

Evenflo does not know the identity of your proposed “medical expert in child
car seats,” so we cannot comment on his or her credentials to speak about Evenflo’s
proprietary side impact test—or on the required FMVSS 213 dynamic testing
conducted on Big Kid for that matter. Evenflo is aware of the purported expert used
by Plaintiffs’ counsel in the open Big Kid matters to support an allegation that
children under 40 lbs. should not be using the Big Kid--and that proffered expert
lacks a medical degree and hold no professional license in engineering. On the other
hand, the experts upon which Evenflo relies in those same matters are (1) a MIT-
educated biomechanical engineer with decades of experience in the automobile and
child restraint industries and (2) a biomechanical engineer/NHTSA researcher/M.D.,
wo still practices emergency room medicine.

Regardless, the most common accident is a frontal collision. Frontal crash

testing of belt positioning boosters versus internally harnessed seats shows that
forward head excursion can be greater with a harnessed 5-point seat than with belt-
positioning booster, especially if a tether is not used. Moreover, statistics show there
is a much greater frequency of misuse with five-point seats compared to booster seats.
If any seat is misused that can negatively affect safety. Published NHTSA data states
that tether use is only about 50% for five-point seats. That misuse impacts the safety
of the 5-point seat in a crash.

No child restraint or booster seat can ensure that a child will avoid injury in a
car crash, especially a severe one; just like no vehicle manufacturer can ensure that all
vehicle occupants will escape injury in every crash. So, Evenflo engineers design the
Big Kid and all Evenflo car seats with the objective of making the seat safe in a variety
of reasonably foreseeable crash scenarios.

ProPublica’s “investigation” focuses on only one scenario: how the Big Kid
performs in a severe, far-side impact crash. That singular focus is not a luxury that a
car seat manufacturer has. After all, our consumers don’t know at the time of
purchase what kind of crash they may unfortunately become involved in while their
child is in the vehicle. As a responsible car seat manufacturer, consequently, we must
design to protect a child in a multitude of reasonably foreseeable accidents types. The
Big Kid has been sold for over a decade and it has boosted children up properly in the
vehicle to use the vehicle restraint system and survive and thrive after all kinds of
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accident scenarios. The company receives praise from consumers in all kinds of
accidents—frontals, near-side-impacts, far-side impacts, rollovers, and rear-side
impacts.

As we told ProPublica:

Your article would seek to condemn the Big Kid and an entire
category of seats based upon a few cases, even though the utility and
safety of the Big Kid is confirmed not only by hundreds of injury-free
children walking away from crashes in which they were seated in a Big
Kid, but also the thousands that have done so when you couple our field
history with the similar expected field history of our BPB competitors.

Simply put, if BPBs like the Big Kid were not available, there
would be a decrease in overall child-occupant safety. Evenflo hopes that
you present the issues raised in your upcoming article in such a way as
to educate your readership about differing points of view on the safety
of the Big Kid or BPBs in general. We ask that ProPublica remain
cognizant that reducing consumer choice between and among safe car
seat options by eliminating an entire product category should not be the
goal.

Thank you for the opportunity to comment on your planned segment.

Kind Regards,

Amy E. Blankenship

Attachments

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