NHTSA Denies Toyota Unintended Acceleration Defect Petition

Eight months after a Bristol, RI Toyota Corolla owner petitioned the National Highway Traffic Safety Administration to investigate low-speed surges into Toyota Corollas, the agency has denied the petition, concluding:

NHTSA Seeks Input on Electronics Rule

The National Highway Traffic Safety Administration has published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments, satisfying a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles,” would have been an excellent addition to Volume 54 of the Federal Register (published in 1989).

Toyota’s Billion Dollar Web

Back in 2010, after Toyota announced that a federal grand jury in New York had subpoenaed the company on June 29 for documents regarding relay rod failures in Toyota truck models, we asked if the automaker would be the first to be prosecuted under the Transportation Recall Enhanced Accountability and Documentation Act (TREAD).

Well, right question, wrong defect.

Under the settlement with the Department of Justice announced today, Toyota is banged for $1.2 billion, and prosecution for committing one count of wire fraud is deferred for three years, for the lies it told about the floor mat entrapment and sticky pedal recalls. According to Toyota’s Statement of Facts, the automaker sought to limit its floor mat recalls, even though the entrapment hazard affected other models, and resisted the sticky pedal recall, even though Toyota had addressed the problem in Europe.

“This sends a mixed message,” says Sean Kane, president of Safety Research & Strategies. “On the one hand, a $1.2 billion fine is a very significant hit. But the government’s focus is only on the narrow areas of the floor mats and sticky pedals. The bulk of Toyota vehicles experiencing Unintended Acceleration problems were never recalled.  That billion dollars doesn’t do a thing for Toyota owners stuck with defective vehicles.”

The skeleton of this particular set of lies have been in the public domain for several years. In April 2010, when former Secretary of Transportation Ray LaHood announced that the agency had imposed a $16.4 million fine on Toyota for failing to recall 2.3 million vehicles with defective accelerator pedals – then the largest civil penalty NHTSA had levied against an automaker – the Secretary failed to make public the documents laying out his rationale. In May 2011, NHTSA quietly posted the sternly worded demand letter that explained why Toyota got slapped.

To remind our readers, Toyota recalled the CTS supplied pedal in Europe in September 2009, but waited until January 2010 to recall the pedals in the U.S. However, on October 7, 2009, “a staff member of the Toyota Motor Corporation Product Planning and Management Division sent a copy of an Engineering Design Instruction describing the pedal remedy that was already implemented in Europe to someone at Toyota Motor Engineering and Manufacturing North America, Inc. for the accelerator pedal of a RAV 4 manufactured in Canada. Two weeks later “a member of the TMC PPM inexplicably instructed a member of the TEMA PPM not to implement this Engineering Change Instruction. Furthermore, in November 2009, Toyota provided NHTSA with FTRs regarding sticking accelerator pedals on vehicles in the United States but not with information regarding Toyota’s extensive testing and determinations regarding the cause of the sticking accelerator pedals or an explanation of the significance of the FTRs, the demand letter said.

The Toyota Owners Left Holding the Bag

John Biello was not ready for the cruise control malfunction that sent his 2009 Tacoma careening down an exit ramp, then skidding into a rollover last June. But Tuesday, when he and his wife Diane appeared before the Commonwealth of Massachusetts Division of Insurance Board of Appeals to fight an automatic rate increase mandated by state law, Biello was fully prepared to educate the hearing officer about Unintended Acceleration problems in Toyotas.

As the great tide of cash washes from Toyota into the pockets of the U.S. government, attorneys, research institutions and some death and injury victims to settle fines and claims without an admission that the automaker’s electronic throttle control system is defective, owners like John and Diane Biello represent those left to deal with Toyota’s mistakes on their own. The Rehoboth, Massachusetts couple had no counsel, just a compelling account and a binder of public documents showing that Toyota Unintended Acceleration problems continue today and that juries and technical experts recognize what the National Highway Traffic Safety Administration has not: Toyota’s badly designed electronic architecture can cause UA.

“I knew that there had been this unintended acceleration problem. I had read about it a couple of years ago,” John Biello says. “But I thought it pretty much done. I thought the problem was fixed and I didn’t really think my vehicle was involved because I got no Unintended Acceleration recall notices.”

Toyota Unintended Acceleration and the Big Bowl of “Spaghetti” Code

Last month, Toyota hastily settled an Unintended Acceleration lawsuit – hours after an Oklahoma jury determined that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs – but before the jury could determine punitive damages.

What did the jury hear that constituted such a gross neglect of Toyota’s due care obligations? The testimony of two plaintiff’s experts in software design and the design process gives some eye-popping clues. After reviewing Toyota’s software engineering process and the source code for the 2005 Toyota Camry, both concluded that the system was defective and dangerous, riddled with bugs and gaps in its failsafes that led to the root cause of the crash.

Toyota’s Motion is Extra-Judicialious!

Two judges have turned down Toyota’s request to bar Plaintiffs from speaking to the press about their unintended acceleration cases.

Guadaloupe Alberto of Flint, Michigan died in April 2008, when her 2005 Camry accelerated out of control, left the roadway and struck a tree. Alberto was known as a cautious driver; the 2005 Camry is known as one Toyota’s most problematic UA vehicles. Alberto v. Toyota is now set for trial in February 2014.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries. Bookout v. Toyota is also soon headed for trial in the District Court of Oklahoma County, Oklahoma.

On Sept. 4, Toyota moved for a gag order in Alberto, to stop the family and its attorneys, including West Virginia lawyers Benjamin Baily and Edgar “Hike” Heiskell III, from talking to the press.

“Defendants believe that statements to the media and the release of witness deposition testimony will have a substantial likelihood of materially prejudicing the proceedings and jury selection as prospective jurors should consider only the evidence present at the trial,” the automaker argued.

The Toyota Claimants Are Getting Restless

The $1.63 billion deal in the Toyota Unintended Acceleration economic damages multi-district litigation worked out between the lawyers for Toyota and Hagens Berman, Sobol, Shapiro, and Susman Godfrey the firms representing 22.6 million consumers is headed for a final approval hearing before U.S. District Judge James Selna  on June 14, and really, who could complain?

Toyota gets to continue to claim that its electronics are just fine while funding research blaming drivers for runaway vehicles that it can stash in its back pocket for future unintended acceleration product liability lawsuits. Some Toyota owners – but not those of the most troubled model years will get a brake override system that sorta, kinda may work sometimes under select conditions (hint—don’t put your foot on the brake first).

There’s $250 million for consumers whose vehicles are ineligible for a brake override retrofit. The cash payouts for those folks range from $37.50 to $125. Let’s see. That ought to cover an oil change, a new set of windshield wiper blades, and a Vente Mocha Chip Frappacino at Starbucks to sip while you wait. Done!

Kia and the Breaking Brake Switch that’s Been Broken

Remember Lauri Ulvestad? She was the unfortunate owner of a 2011 KIA Sorrento, which took her on a wild 60-mile ride, at speeds topping out at 115 mph, around sedans and 18-wheelers along the north-bound corridor Interstate 35 in Harrison County, Missouri. The Missouri State Highway Patrol, which escorted Ulvestad until she was able to bring the vehicle to a stop, captured the event with an on-board camera.

At the time, the automaker said that it could not duplicate the event, and that it was “an isolated incident.” But, it bought Ulvestad’s Kia double-quick.

Well, today it turned out that the Ulvestad incident wasn’t so isolated after all. Kia and Hyundai announced that they were recalling 1.9 million vehicles from the 2006-2011 model years for a brake switch failure. The long list of vehicles includes: Hyundai Accent, Elantra, Genesis Coupe, Santa Fe, Sonata, Tucson and Veracruz vehicles and Kias Optima, Rondo, Sedona, Sorento, Soul and Sportage.

According to KIA’s Part 573 Defect and Noncompliance Report:

"The stop lamp switch" (also known as a brake switch) "on vehicles in the subject recall population may experience intermittent switch point contact. This condition could potentially result in intermittent operation of the push-button start feature, intermittent ability to remove the vehicle's shifter from the Park position, illumination of the 'ESC' (Electronic Stability Control) indicator lamp in the instrument cluster, intermittent interference with operation of the cruise control feature, or intermittent operation of the stop lamps. Intermittent operation of the stop lamps increases the risk of a crash."

How does this description square with Lauri Ulvestad’s experience? Let’s see:

Ford Unintended Acceleration Hopping that Class Action Train

It’s Ford’s turn to take a ride down the Unintended Acceleration (UA) class action track. The civil lawsuit, filed in the southern district of West Virginia, with plaintiffs from 14 states, seeks economic damages from any Ford vehicle manufactured between 2002 and 2010 equipped with an electronic throttle control system but not a brake override system. This civil lawsuit seeks economic damages only on behalf of Ford owners and lessors who relied on Ford’s representations of vehicle safety in choosing their products.

As in the recently settled Toyota MDL, the remedy is a brake override system. Hopefully Ford will design one that works in most UA scenarios – unlike Toyota’s version, which does not override the command to accelerate if the brake is already depressed when the UA occurs or at low speeds. (Sorry, all you plate-glass-breaking, drive –through, curb-hopping Toyota parkers who have the misfortune of experiencing a UA event while riding the brakes into a parking spot.)

While Toyota has gotten most of the ink on UA, it is hardly the only automaker grappling with electronic malfunctions in its vehicles. A casual survey of some of pending or recently retired National Highway Traffic Safety Administration investigations and news stories about wild terrifying trips on our nation’s highways shows that Hyundai, Mercedes Benz, Honda, Ford and others have been associated with Unintended Acceleration and Unintended Braking.

Ford, you may recall, was the target in 2011 of Judge William T. Swigert’s ire for lying to the court, the National Highway Traffic Safety Administration, as well as its own expert witnesses on its knowledge of UA. Swigert, Senior Judge of the Florida’s Fifth Judicial Circuit, set aside a jury verdict in favor of Ford in Stimpson v. Ford, because the automaker defrauded the court by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles.

Betsy Spills Toyota’s Beans

To steal a line from Bogie: “Of all the publications in all the websites in all the world, she walks into Corporate Counsel.” She – being Betsy Benjaminson, a freelance translator from Israel who was tasked with translating from Japanese into English documents regarding Toyota Unintended Acceleration. Corporate Counsel -- being the self-described “leading digital destination for in-house counsel to find breaking news and practical information.” And this bit of breaking news? When you lie to the world about an automotive electronics problem that has the potential to result in fatal crashes, don’t expect every underling to keep your secrets.

The story, entitled Is Toyota Telling the Truth About Sudden Acceleration? (Spoiler alert: the answer is: No.) is a fascinating behind-the-scenes look at a company in disarray with a technically challenging problem that its technicians weren’t looking too hard to solve, while its legal and public relations gears clicked into place to drive the denial machine forward. Our favorite:

“Hagiwara and Chris Tinto, a V.P. for technical and regulatory affairs and safety, had been talking about the U.S. investigation and an earlier one in Europe that also involved unintended acceleration (UA).

‘Tinto is extremely pessimistic,’ Hagiwara wrote, ‘and is saying (public hearings, someone will go to jail, I can't completely take care of the pedal problem, etc.).’ Tinto's primary concerns (according to Hagiwara): ‘For NHTSA, we said that our investigations in Europe found that the pedal return is a little slow at a slightly open position, and that there were no accidents, but this is not true. Last year's situation in Europe (many reports of sticking pedals and accidents, and a TI TS9-161 was filed on October 1, 2009) was not reported to NHTSA.’ That failure, Tinto said, ‘may be a violation of the TREAD Act’—the federal law that requires car manufacturers that conduct recalls in foreign countries to report these to U.S. regulators.”

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