Category Archives: HSM LAW

HSM Chambers was instructed by the bereaved family of Dr Amber Martinez, a newly-qualified doctor whom had died in a car accident on the Queen’s Highway in the early hours of 21^st October 2022, aged only 29. The accident took place a mere 200 feet from the family’s property, in which the vehicle, a 2008 Honda Fit, lent to Amber by her godfather, left the road and slid into a 5-feet-deep ditch, colliding with some small trees. Shortly after the vehicle had left the road, as the emergency services were en route, it caught fire due to an electrical fault, burning vigorously and causing extensive damage.

The family, led by Amber’s parents, Barry and Joanna Martinez, subsequently discovered the vehicle Amber had been driving was subject to a recall to replace the defective “Takata” branded airbags. Takata airbags were (and remain) the subject of the most extensive vehicle recall in history; over 100 million affected vehicles from 19 well-known motor manufacturers, including: Honda, Toyota, Nissan, BMW, Chevrolet, and Ford, were urgently recalled, following deaths and horrific injuries caused to drivers. The recalls were effected in 2015 in the USA and many other jurisdictions worldwide, but some jurisdictions lag behind.

The Martinez family instructed Newsome Melton, a firm of attorneys based in Florida specializing in cases of injuries and deaths caused by Takata airbags. They agreed to investigate the circumstances surrounding the accident. HSM Chambers was instructed to advise on Cayman Islands procedure and law, from the perspective of civil liability and the Inquest investigating the death that was to be conducted by His Majesty’s Coroner.

The case presented very significant challenges. The fire destroyed much of the available evidence to investigators. Important clues as to the cause of the accident and the cause of death had been masked or destroyed. The result was that the interior of the vehicle was completely burned, destroying the “black box” telemetry recorder and its valuable data, as well as the interior of the vehicle. The dashboard, car seats, steering column and anything combustible was incinerated. The body of the deceased was badly burned. This rendered the identification of any wounding to the face or neck almost impossible. The cause of death was determined by the attendant pathologist, Dr Rajagopalan, to be a fracture to the C3 vertebra (in the neck) by blunt force, which had severed the spinal cord, likely causing almost instantaneous death.

There were, however, crucial pieces of the puzzle that remained. A piece of metal, described as resembling “something that has exploded, like a shotgun cartridge” by the pathologist was discovered during the autopsy embedded in the neck of the deceased. Despite the best efforts of Cayman’s most qualified accident investigators, the piece of metal remained unidentified, and was overlooked as an “artifact” likely picked up during the process of the recovery of the body from the vehicle. Fortunately, the instincts of the pathologist and the careful recovery of the evidence by the Royal Cayman Islands Police Service (RCIPS) ensured this innocuous-looking fragment was preserved as an exhibit.

Following receipt of instructions from the Martinez family, the team of attorneys at Newsome Melton formed the view that the metal fragment was a broken piece of the inflator mechanism from a Takata airbag. This was supported by research conducted by the family and HSM, as it resembled similar pieces of metal which had caused injuries in other cases around the world. HSM advised upon all aspects of Cayman civil procedure, law, liability and quantum, as well as upon the Coroner’s inquest procedure.

It was necessary for the inquest date to be adjourned, as there was too little time for the family’s investigation to be concluded prior to the hearing date. Arrangements were made efficiently through the office of the Coroner for access to all the police exhibits, including the piece of metal and the burnt shell of the vehicle.

An independent expert in Takata airbags, Michael DiCicco, a former engineer employed with Takata in the manufacture of the airbags, now an eminent accident reconstruction and airbag fault consultant, flew to Grand Cayman to conduct a further investigation of the accident site, the vehicle, the airbag mechanism, and the piece of metal recovered during the autopsy. The investigation was difficult, as it took place over a year after the accident itself. The vehicle had been left exposed to the elements for some months, and the accident site had changed: vegetation had begun to re-grow and a white “fog line” had been painted demarking the edges of the road.  Fortunately, the detailed contemporaneous investigation conducted by RCIPS and local experts, including photographs of the scene, was available for review. Mr DiCicco concluded that the piece of metal was not simply an artifact, but was a piece of the airbag’s fractured “booster tube”. This portion of the mechanism is a sealed tube, containing a propellant. When “fired” by the deceleration forces during an accident, the propellant ignites, designed to inflate the airbag in a tiny fraction of a second using the expanding gas from the reaction through small vents located towards the end of the booster tube. He was able to identify a sticker with a serial number visible on the booster tube, as referring to a 2008 Takata airbag, ruling out the possibility that the airbag had been replaced prior to, or since, its importation to the jurisdiction.

Mr DiCicco recovered the burnt airbag mechanism from the vehicle. The steering column and steering wheel had been completely consumed by the blaze, leaving the metal skeleton of the airbag inflator in the driver-side footwell. Still, even after 15 months, the airbag housing disclosed important clues.

Mr DiCicco provided a report to the Coroner’s court, and gave evidence to the jury during the Inquest. He explained that the defective airbags have inadequate seals, which, particularly in hot and humid climates such as the Cayman Islands or southern states of the USA, results in the propellant reacting with moisture in the air and becoming corrupted. The corrupted propellant has a propensity to burn much more vigorously than intended, creating a far greater reaction than is necessary to inflate the airbag. The explosion can be so violent that it can rupture the metal booster tube, shearing it in two pieces, which will fly in opposite directions – one piece into the steering column, the other directly towards the driver. Tragically, this piece of flying shrapnel, akin to a bullet or grenade shrapnel, can injure and kill the driver. He noted the force of the explosion had also deformed the shape of the airbag inflator housing, from a flat cylindrical “hockey puck” into a spherical “softball” shape.

The pathologist was assisted by this information and fundamentally revised his opinion of the cause of the fatal injury, stating that the most likely explanation was that the piece of metal shrapnel had exploded from the airbag during the accident, passing through the driver’s trachea and colliding with the C3 vertebra with sufficient force to fracture it and sever the spinal cord. Somewhat mercifully, death would have been instantaneous, and prior to the fire starting. His opinion was revised to the extent that the presence of the piece of metal in the neck, close to the injury site, for any other reason would be an “unbelievable coincidence”. After hearing this important evidence at the end of the three-day inquest, the jury returned a verdict of “misadventure” on 5^th June 2024.

This was a challenging case, both from technical aspects, requiring analysis of a large amount of technical information from numerous experts in a short period of time, managing an investigation 15 months after the subject incident, and from an emotional aspect, from the tragic circumstances and palpable grief of the family, friends, colleagues and all who knew Dr Martinez.

The case highlights important differences between the adversarial civil jurisdiction of the Grand Court and the inquisitorial, collaborative nature of a Coroner’s Inquest. Evidence at an inquest is not challenged in the same manner as in adversarial litigation: cross-examination is limited to only those matters which should assist the jury to decide the issues before them. Hon. Carter J. recently considered these matters in the Grand Court in Barnes-Newell v Biggs and Wood (Unreported Judgment GC 183 of 2020, 8^th April 2024) highlighting that an Inquest does not comprise a “full ventilation” of the facts, tested to the extent that it would be in civil litigation by robust cross-examination.

The timing of instructions presented a crossroads between the two jurisdictions, in which there was a genuine risk that evidence presented at the inquest might be contradictory or prejudicial to anticipated civil action, which, if reported, may have had unintended effects, particularly upon any proposed international civil claims. The earnest and determined efforts of this bereaved family, seeking legal and expert assistance to bolster the evidence in the Inquest ultimately produced important answers.

Whether inquisitorial or adversarial, it is imperative that all courts and tribunals have as much evidence as is available to decide the issues before them, ensuring, to the greatest extent possible, consistency is maintained. If specialist knowledge is required to identify these issues, then it should be available to the courts in order that full investigations can be conducted, particularly when public safety is at stake.

HSM Litigation attorney Alex Davies has many years’ experience representing parties in serious and fatal vehicle accidents, and it was his privilege to provide support, advice, and representation to the Martinez family in this tragic case. The recommendations from the Coroner, it is hoped, will raise awareness of vehicle recall issues, and repeating warnings to the Government regarding vehicle safety. Ultimately, it is hoped this case will save the lives of motorists in the jurisdiction. HSM urges all drivers in the Cayman Islands’ community to check their vehicles’ VIN numbers online to ensure that they are not driving a potentially deadly ticking time bomb.