GM Folds, Where's the Fine?

On the First Day, attorney Lance Cooper called GM out on its recall of the 2005-2007 Chevy Cobalt and Pontiac G5 for an ignition switch problem that, the automaker announced, was linked to six deaths.

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Why Civil Litigation Matters to Safety: GM Edition

If you want to know why civil litigation matters to safety, take these links over to USA Today and read James Healey’s fine coverage of General Motor’s crappy, nine-years-too late 2005 Cobalt and Pontiac G5 recall, and attorney Lance Cooper’s request to the National Highway Traffic Safety Administration for a Timeliness Query investigation. (6 Killed in GM Cars with Faulty Ignition Switch; Lawsuit: GM Knew of Cobalt Ignition Problem; and Lawyer Asks Feds to Explain Recall Timing)  

After settling a lawsuit in which a 29-year-old woman died in crash caused by a defect known within GM since 2004, the automaker announced that it would recall a subset of vehicles plagued by ignition switches that wander from the run to the accessory or off position. These shifts  create an emergency situation while the vehicle is underway, disabling the airbags while cutting off the engine power, power brakes and power steering. The defect, which GM engineers discovered in 2004, before they began selling the 2005 Cobalt, was the central issue in Melton v General Motors.

Brooke Melton, 29, died in 2010 when the ignition switch in 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; she died of her injuries in the crash.

The incident was initially attributed to Melton simply losing control of her car on a rainy night. But the Melton family sought the counsel of attorney Lance Cooper, after facing a legal claim from the driver in the other vehicle. Cooper, a veteran of motor vehicle defect litigation, saw something that many lawyers would have overlooked and filed suit against GM.  The records he pried out of GM’s hands after 18 months of requests for production and a court order compelling the automaker to produce what it knew about the defect, revealed a long, sorry history. GM engineers had discovered the ignition switch problem during the Cobalt’s production stage, but the company sold them anyway. GM began to receive complaints about the problem almost immediately, and tried to make them go away with an October 2005 TSB covering the 2005 Cobalt and with a later TSB involving later model years of the Cobalt, the Pontiac G5, along with 2006-2007 Chevrolet HHR, the 2005-2006 Pontiac Pursuit in Canada; the 2006-2007 Pontiac Solstice; 2003-2007 Saturn Ion; and 2007 Saturn Sky. This “fix” – an ignition key cover that changed the design from a slot to a key hole – did not solve the problem.

As the 6(b) Turns

The U.S. Consumer Product Safety Commission has voted to publish a Notice of Proposed Rulemaking removing the “unnecessary and unjustifiable,” in the words of Acting Commission Chairman Robert Adler, re-notification procedure which forces the commission to seek the manufacturer’s blessing every time it releases the same information about a product to a different source.

The rule is designed to rid the commission of situations in which, for example, two reporters working on the same story query the commission about a product a week apart. The commission staff dutifully sets off on the ten-day path, through the manufacturer, before it can deliver an answer to the first reporter. A week later, the commission is required to take all of the same steps – even though the manufacturer has already vetted it for inaccuracies – to give the second reporter the same information.

“This is not in keeping with the acting chairman’s aim for the CPSC to be more transparent while following the law,” says commission spokesman Scott Wolfson. “The onus is still on the agency to ensure fairness and accuracy, that principle does not go away. But this rule change would ensure more efficiency and we’ll be able to serve the public faster.”

In the Information Age, consumer product manufacturers have been unusually successful at keeping the public information regulations surrounding product defect positively medieval. While consumers have myriad Internet resources to find out if a particular product is any good, when it comes to finding out if it is safe, consumers are still at a disadvantage. Section 6(b) of the Consumer Product Safety Act – beloved by industry, reviled by consumer advocates -- gives manufacturers a lot of control over what negative information the CPSC can disclose about them. The CPSC cannot release information that might be considered trade secrets or “misleading” and “inaccurate” information.  The CPSC can disclose the existence of an investigation, under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products and typically the two entities release agreed-upon language.

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.”

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