Injured cyclist sues Costco and e-bike brand over right front brake lever setup

By Dan Roe

SAN DIEGO (BRAIN) — An Arizona woman is suing San Diego electric bike company Phantom Bikes and Costco Wholesale for $6 million. Carol Penkert’s suit claims her bike was set up so that the right brake lever operated the front brake, which caused her to flip the handlebars and sustain serious injuries.

The Consumer Product Safety Commission requires that bicycles sold in the United States be configured so that the right brake lever activates the rear brake.

Phantom Bikes marketing materials show that the right front brake lever appears to be a design choice that affects an unknown number of Phantom Bikes Swirl stepper e-bikes, a BRAIN review of the company’s marketing materials revealed.

Reached by email, Phantom Bikes President and CEO David Toma did not respond to multiple requests for comment after initially acknowledging the existence of the November lawsuit. Phantom’s attorney, Kyle Carroll of the Newport Beach office of Bremer Whyte Brown & O’Meara, said he could not provide meaningful information at this stage of the company’s investigation into the complaint.

Costco, also named as a defendant in the lawsuit for allegedly selling the bike fully assembled without verifying its safety, has filed a counterclaim against Phantom Bikes to recover from a possible judgment. Costco representative Muriel Cooper said the wholesaler’s management would decline to comment on the lawsuit. In court papers, Costco attorneys laid blame on Penkert, saying she was negligent in the face of “open and obvious” perils.

A month after the COVID-19 pandemic swept the country, Penkert embarked on his first major ride with his Phantom Bikes Swirl. She bought the bike in February 2020 online and fully assembled through Costco, but didn’t drive it past her driveway until April 15, her attorney told BRAIN. When she came across a speed bump, Penkert instinctively grabbed the right brake lever to slow down, thinking it would activate the rear brake. Instead, the front brake jammed, sending her flying over the handlebars in a crash that resulted in multiple facial fractures and the loss of her right eye.

Penkert’s attorney, Nick Verderame of the Phoenix Plattner Verderame law firm, said the right-hand positioning of the Swirl’s front brake violates federal law governing bicycle design. The law states that the front brake of a bicycle must be operated by a control located on the left side of the handlebar. Cancellations are only allowed for custom bikes.

Penkert discovered the cause of his accident when a mechanic identified the right front brake lever while servicing the damaged e-bike.

“They didn’t put a warning on the box. They didn’t put a warning on the bike. They didn’t put a warning on the manual. The only way anyone would know would be to stumble upon their YouTube page,” Verderame said.

In a November 2018 YouTube video uploaded by Phantom Bikes, and now deleted, a company representative identified the Swirl’s right brake lever as the front brake. Instagram posts and other YouTube videos released by the company between 2017 and 2020 show right-back levers.

The lawsuit also includes the claim that even if Penkert had grabbed both cable-actuated disc brakes with equal pressure, the bike’s misaligned rear brake caliper would have shifted the vast majority of braking duties to the rear. before. A Swirl customer review on Costco’s website also complained about a misaligned rear brake that couldn’t be repaired at an e-bike repair shop.

Verderame said the bike needed finishing touches when it arrived at Penkert’s home in Scottsdale, including the installation of a front basket, but was otherwise fully assembled. In Costco’s response to Penkert’s complaint, the wholesaler also alleged that Penkert modified or misused the bike.

The Swirl is available for sale on for $2,295. Costco still lists the bike for sale on its website. Walmart also appears to have sold the bike, although it is currently out of stock. The number of Swirls sold in the United States is unknown, although Toma said in an August 2020 interview with his supplier platform, C2FO, that Costco ordered $400,000 worth of Phantom e-bikes in November 2019. The Swirl is currently the only Phantom Bikes e-bike available for sale on the Costco site.

Phantom Bikes started in 2009 in the shed of Del Mar, Calif. resident John King, according to a 2017 interview King gave to the San Diego Traveler. At the time, King was building gas-powered bikes that looked more like motorcycles—Jay Leno’s garage even featured an early Phantom bike. Toma, a former Hollywood producer, came into the business in the mid-2010s and started pushing it towards e-bikes. He bought the company from King in April 2019 and began selling e-bikes to Costco that summer. San Diego County court documents say King sued Toma for breach of contract in March 2020; the case was closed last April.

Today, Phantom Bikes sells the range of popular e-bike styles, including a beach cruiser, fat tire mountain bike, hardtail mountain bike, folding bike, and the motorcycle-style Phantom 1910. The Phantom Vision, a $2,800 range cruiser-like e-bike, is also featured on the company’s website with a front brake operated by the right lever. The orientation of the brakes on the company’s other models is not clear from the photos.

Tracing the bicycle boom in 2020, sales of Phantom Bikes increased by 500% between January and April 2020, Toma said in the interview with C2FO.

Verderame said Penkert’s helmet broke in the accident which fractured his eye socket, jaw and nasal bones. With her right glass eye, she relearns everyday tasks through her altered depth perception. The attorney said he hoped to settle the case quickly but was prepared for endless litigation.

In December 2020, a group of New Yorkers sued Lyft – the owner of Citi Bike – after claiming they were injured in falls caused by what they believed to be excessive front braking force generated by the bikes’ Shimano brakes. self service. (Shimano was also named in the lawsuits.) Lyft and Shimano then hired elite New York law firms Crowell & Moring and Eckert Seams Cherin & Mellott to defend against the claims. The following summer, all riders dropped their wetsuits.

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