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.

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