What Good Can Come of Reporting Toyota UA?

Last week, two young clean-cut and preternaturally earnest lawyers travelled from the D.C. and New York offices of Cahill Gordon & Reindel LLP to meet with Bob and Kathy Ruginis, the Bristol, RI couple who reported their Unintended Acceleration incident while parking to the Toyota Special Monitor and to NHTSA.  

Senate Holds Hearings on NHTSA and House Releases Staff Report on GM Ignition Switch

Another big day for NHTSA as the Senate Committee on Commerce, Science, and Transportation’s Subcommittee on Consumer Protection, Product Safety, and Insurance will hold a hearings today at 2:30 pm titled “Oversight of and Policy Considerations for the National Highway Traffic Safety Administration,” chaired by Subcommittee Chairman Claire McCaskill (D-MO).  Earlier today House Committee on Energy and Commerce released its Staff Report on the GM ignition switch crises. 

Tire Industry gets Anti-Aging Reality Check

It’s not often we encourage our readers to read a trade journal article, but a recent  commentary in Tire Review by Editor Jim Smith is a go-to.  The article is shockingly honest and puts the brakes on the industry’s claim of victory following NHTSA’s announcement that it wouldn’t pursue a tire aging standard. 

NHTSA Finally Tackles Rear Underride

One Ms. Marianne Karth of the Truck Safety Coalition and 11,000 signatories have succeeded where the Insurance Institute for Highway Safety – with all its fancy-pants testing – and the Canadians – with their much tougher standard – had failed, persuading the National Highway Traffic Safety Administration to initiate a rulemaking to upgrade the rear underride standard.

NHTSA’s Message to the Defense: Call Us Before We Call You

This week, while heads were rolling out the doors of the RenCen (GM headquarters) in downtown Detroit, the Chief Counsel of the National Highway Traffic Safety Administration was laying down the law for defense lawyers at a Chicago legal conference.

Amid the presentations at the American Conference Institute’s 7th Annual Summit on Defending & Managing Automotive Product Liability Litigation devoted to defeating class-actions, the liability of autonomous cars and one of our personal faves –tire aging (with a shout-out to SRS’ Sean Kane!), was a warning from the government.

First, Chief Counsel O. Kevin Vincent lulled them with a feel-good “rah-rah-ree” paean to industry. And then, he made the hair on the back of their necks rise: A manufacturer’s obligation to report a defect within five days of its discovery is the law, and after a long hiatus from doing its job, NHTSA intended to take “an aggressive stance” in enforcing it.

The first offense line in the discovery of a defect was not the Office of Defects Investigation, Vincent said. It was the manufacturers themselves.

“We don’t have analysts, but your clients do. You all have ability to find these defects,” he said.

A manufacturer cannot delay a defect finding, while a safety problem meanders through an internal process involving multiple committees. It cannot hide its knowledge behind a wall of attorney work product and attorney-client privilege. It cannot wait until it’s gotten the supply chain ready to implement the recall.

And it better not wait until after it settles a plaintiff’s case for big bucks. The TREAD Act obligated NHTSA to “follow up on civil litigation that sends up red flags,” he said.  And they’d be looking for signs of foot-dragging in large civil litigation settlements. Not right away, certainly. Civil actions take years, he said. (This gives the safety problem plenty of time to fester.) How much of a settlement was enough to catch NHTSA’s attention? Vincent wouldn’t name a figure.

ABC Exposes Broken Tire Safety System

Yesterday, ABC’s Nightline and Good Morning America took two issues that Safety Research & Strategies has been chipping away at for a decade, and gave them big play: the broken tire recall system and tire age. Producer Cindy Galli and investigative reporter Brian Ross, working with reporters at local ABC affiliates, bought recalled and very old tires, told victims’ stories and skewered the Rubber Manufacturer’s Association.

The stories raised a number of key issues:

• The tire recall system doesn’t work: Recalled tires aren’t always caught by retailers and there is no quick, easy or efficient way for any consumer or tire technician to check the recall status of a tire.
• Aged tires are sold and put into service unknowingly because the date code is buried in the Tire Identification Number, and expressed in a non-standard format. Tire age recommendations by vehicle and tire makers are not well known to service professionals or consumers.
• The tiremakers’ trade group, the Rubber Manufacturers Association (RMA) has conceded that the tire recall system does need improvement, but continues to maintain that tire age has no bearing on safety, and has fought off regulations to keep old tires off the road.

ABC highlighted the National Transportation Safety Board’s first tire safety investigation into a February crash that killed two and injured seven members of the First Baptist Church in New Port Richey, Florida, when a two-year-old left rear recalled BF Goodrich tire suffered a tread separation. The tire had been recalled in July 2012. The NTSB is also investigating a second fatal incident involving an aged tire. With its investigative powers and advisory role to other regulatory agencies on safety policy, the NTSB’s recommendations have the potential to be a game-changer. Will the National Highway Traffic Safety Administration listen?

Markey Calls for NHTSA Transparency

Documents released Wednesday by Massachusetts Senator Edward Markey show that Wisconsin State Police came up with the same two-and-two as NHTSA’s Special Crash Investigation team during its 2007 investigation of a 2005 Chevy Cobalt crash that led to two deaths.  Too bad neither NHTSA nor GM thought they added up to four.

On October 24, 2006, Megan Ungar-Kerns, 17, was at the wheel of her 2005 Cobalt, returning from a trip to Walmart on a rural Wisconsin highway, when her vehicle suddenly drifted off the roadway at about 60 mph. The Cobalt hit a raised driveway and sailed through the air about 60 feet, before striking a telephone pole and two trees. The trio was not wearing their seatbelts and no airbags deployed. Natasha Weigel, 18, and Amy Lynn Radebaker died of their injuries. Ungar-Kerns survived with permanent injuries.

A crash investigation report issued by the Wisconsin State Police in February, noted the October 2006 GM Technical Service Bulletin about inadvertent power loss due to the ignition switch moving from the run to accessory position. They determined no other cause of the crash:

“The two front seat airbags did not deploy. It appears that the ignition switch had somehow been turned from the run position to accessory prior to the collision with the trees,” the report stated.

Markey released it and a few other documents that GM submitted to NHTSA, as part of the Death Investigation (DI), during a transportation appropriations hearing held by the Committee on Commerce, Science and Transportation. DOT Secretary Anthony Foxx was the sole witness. The report didn’t add much new to the known narrative, but spotlighted legislation he has sponsored with Connecticut Senator Richard Blumenthal requiring manufacturers to submit more detailed information to NHTSA in the event of a fatal crash.

The Early Warning Reporting System Improvement Act “would require NHTSA make the information it receives from auto manufacturers publicly available in a searchable, user-friendly format so that consumers and independent safety experts can evaluate potential safety defects themselves,” according to a Markey news release.

EWR: Elective Warning Reports - When Manufacturers Don't Report Claims

Last week was a case of déjà vu all over again, to quote Mr. Yogi Berra, as NHTSA, and one of its “regulatory partners,” General Motors, faced their Congressional interlocutors, for the second performance of Safety Accountability Theater since 2000, when Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act. Fourteen years ago, it was the Ford Explorer/Firestone tire fiasco that set all those hands a-wringing. Five years ago, it was Toyota Unintended Acceleration. Now, its GM ignition switches.

These come-to-Jesus gatherings were supposed to be obviated by the creation of the Early Warning Reporting (EWR) system. A major component of the TREAD Act, EWR requires manufacturers to submit reams of death, injury, property damage, warranty and other data to the government on a quarterly basis. It’s an honor system that depends on truthful reporters.

More than a year ago, SRS discovered three death and injury claims that had not been reported through EWR, and sought out NHTSA to confirm this apparent lapse and determine NHTSA’s policy toward manufacturers that did not submit reportable injury claims. As is usually the case when we try to help our favorite federal agency, SRS got crickets. And, as is usually the case in that circumstance, we submitted a Freedom of Information Act request to find out what they did about the information we gave them, and the agency’s policy for ensuring that reportable claims were getting into the system.

As is usually the case, NHTSA said that it had practically no information to share. As is usually the case, SRS called B.S. filed an appeal, and when that failed, took it to the U.S. District Court. And, as is usually the case, NHTSA found more responsive materials.

Last week, U.S. District Court Judge signed a Settlement Agreement between SRS and the DOT in which the government paid our legal fees. As is usually the case.

The GM Hearings – Our Take

Missouri Senator Claire McCaskill opened the second day of hearings into the General Motors ignition switch defect and the National Highway Traffic Safety Administration’s response to the issue by forging the strongest ties yet between the revelations that GM had hidden the defect for years and the civil litigation system.

McCaskill repeatedly (along with other U.S. senators and representatives yesterday and today) acknowledged the public debt to Lance Cooper, the Marietta, Georgia lawyer who represents the family of Brooke Melton, the 29-year-old woman who died in 2010 when the ignition module of her 2005 Cobalt slipped into the accessory position as she drove along Highway 92 in Paulding County, Ga. Melton’s Cobalt skidded into another vehicle, and Melton died of her injuries in the crash. Cooper’s dogged pursuit of GM materials through the discovery process showed that GM knew about the problems for years before launching a recall that only covered some of the affected models.

The ensuing avalanche of press led to a larger recall, and a government probe, and the April hearings.

But before the crush began, Cooper formally requested that NHTSA open a Timeliness Query, based on everything he had learned. And, it’s a good thing that McCaskill gave Cooper some credit, because to this day, NHTSA has not acknowledged his letter in any way. Not a phone call, not an email, not a letter. The bubble.

GM and NHTSA’s "Magic Formula"

Tomorrow, the heads and NHTSA and GM will head into the House committee for a three-Bromo-seltzer morning on the topic of: What Did You Know and When Did You Know It?

We, at The Safety Record, are most interested in understanding why NHTSA declined to investigate the defective ignition modules in early model year Chevy Cobalts and other models, after two Special Crash Investigations, 29 complaints, four deaths and the considered opinion of Defects Assessment Division (DAD) Chief.

According to a briefing report prepared by Majority Staff of the U.S. House Committee on Energy and Commerce’s Subcommittee on Oversight and Investigations, the decision point for the agency was the fall of 2007:

In September of that year, the DAD Chief “emailed other ODI officials and proposed an investigation of “frontal airbag nondeployment in the 2003-2006 Chevrolet Cobalt/Saturn Ion.” The Chief of the Defects Assessment Division went on to state that the “issue was promoted by a pattern of reported non-deployments in VOQ [Vehicle Owners’ Questionnaire] complaints that was first observed in early 2005. Since that time, [the Defects Assessment Division] has followed up on the complaints, enlisted the support of NCSA’s Special Crash Investigations (SCI) team, discussed the matter with GM, and received a related EWD Referral. Notwithstanding GM’s indications that they see no specific problem pattern, DAD perceives a pattern of non-deployments in these vehicles that does not exist in their peers.”

Two months later, an “ODI IE panel reviewed the proposal to open an investigation into non-deployment of airbags in 2003-2006 Cobalts and Ions. A PowerPoint presentation prepared by the DAD and dated November 17, 2007, states that its review was prompted by 29 Complaints, 4 fatal crashes, and 14 field reports. During a briefing with Committee staff, ODI officials explained that the panel did not identify any discernible trend and decided not to pursue a more formal investigation.”

The Safety Record has long observed that we can find no “discernible trend” in NHTSA’s investigation decisions. In a March 8, 2014 New York Times story on the GM debacle ODI Chief Frank Borris said that that calls are made by “really well-seasoned automotive engineers who leverage a lot of technology and lean on past precedent about when to open, when to close, and when to push for a recall. It’s no magic formula.”

Take out the word “magic,” and for once, we agree with Frank.

In February, Safety Research & Strategies submitted comments to NHTSA’s 2014-2018 Strategic Plan docket pointing out this perennial problem, well-documented in a series of Office of Inspector General reports going back to 2002:

- NHTSA uses an unstructured process for determining defects and inconsistent or nonexistent criteria for initiating defect investigations.

- NHTSA makes poor use of available data and refuses to consider information from sources outside the agency or the manufacturer.

- NHTSA focuses on defects that are easily and inexpensively remedied, frequently ignoring more complicated and dangerous defects.

Pages