February 29, 2012
Two recent settlements in Unintended Acceleration (UA) cases remind us that while Toyota has sucked all the oxygen in the room over this defect, other automakers’ products equipped with electronic throttle controls are also getting their share of complaints, causing their share of injury and property damage and winding up in civil court.
In the last month, Thomas J. Murray & Associates, a law firm based in Sandusky, Ohio, reached confidential settlements against Kia Motors America and Subaru for seriously injured plaintiffs who claimed that their vehicles suffered an unintended acceleration event.
The first case involved Mary McDaniels, a visiting nurse from Norton, Ohio, who was returning to the office after seeing a patient, when the throttle of her 2006 KIA Amanti suddenly opened, as she crept along in stop-and-go traffic. With vehicles in front of her and oncoming traffic directly to her left, McDaniels chose to steer her rapidly accelerating sedan off the road.
Attorney Molly O’Neill says that McDaniels testified that her first reaction was: “What is happening to me?” When McDaniels looked down to affirm the position of her foot, she saw that it was on the brake. The Amanti hit a ditch, became airborne, skidded and collided with a tree. McDaniels’ leg was fractured in several places. She is unable to walk without assistance as a result of the Dec. 26, 2007 crash and had to give up her job.
McDaniels v Kia Motors America went to trial in October. Over two weeks of testimony, the Murrray legal team was able to show that Kia’s “American engineers were aware of unintended acceleration or surging events not ascribed to driver error,” O’Neill says. “They surmised it could be electronic.” McDaniels’ Kia was bought as “new” with a full warranty, even though it had 6,900 miles on it at the time of purchase and had been used by Kia as an in-house vehicle.
Kia attempted to blame driver error and brought in Carr Engineering the Houston, TX defense experts to argue that brakes could always overcome the throttle.
The civil case resulted in a mistrial, after two days of jury deliberations, with a lone juror unable to find that Kia was the proximate cause of the crash.
After an attempt at mediation failed, the plaintiffs were readying for a re-trial, when the case settled.
The second case, against Subaru America, settled well before trial, but not before the plaintiffs were able to conduct extensive discovery. On December 16, 2008, Cheryl Schmidt of Rockland County, New York, was at the wheel of a 2009 Subaru Forester, a dealership loaner vehicle, when it experienced an unintended acceleration. Schmidt was entering a parking area on the campus of the State University of New York, the vehicle accelerated and did not respond to braking. The Subaru crashed through the brick façade of the library. Although Schmidt was restrained, she broke her back in the crash. A sculptor and artist of large works, Schmidt has been unable to continue her career as an artist due to chronic pain.
Lawyers from the Murray firm found numerous UA complaints in NHTSA’s data. In addition, the lawyers located one consumer who complained to the dealership of two UA events in his 2009 Forester. Murray lawyers also found that Subaru’s ETC is functionally identical to the Toyota system.
Meanwhile, the Multi-District Litigation against Toyota for unintended acceleration claims grinds on. Last week, U.S. District Judge James Selna tentatively ruled that Toyota couldn’t compel named defendants in the class-action suit to arbitrate their cases. The first bellwether case trial is scheduled for later this year.