A Bus Crash, Litigation, and a Surprising Result: Part II

Editor’s Note: A Bus Crash, Litigation, and a Surprising Result is a complex and extraordinary story involving crash deaths, corporate malfeasance, regulatory gaps and litigation that produced significant results – not just for the plaintiffs, but for public safety. Given the length necessary to do this story justice, The Safety Record has decided to publish it in two parts.  Following is Part II

 

Taking on Takata

Lately, the National Highway Traffic Safety Administration has come in like a wrecking ball, knocking aside manufacturers’ excuses for delaying recalls and other sundry sins with multi-million dollar fines – and now aggressive legal action.

The Safety Record Blog’s Top Ten in 2014

1. GM Ignition Switches, the Big Opener for 2014

Elective Warning Reports Redux

Mercedes seat warmers are burning holes in their customers – but, really, who cares?

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.

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.

Graco’s Perception Problem

Leiana Marie Ramirez was three days shy of her second birthday, when she was burned alive, strapped in a Graco Nautilus child safety seat.

 On August 26, 2011, her mother, Samika Ramirez had been out running errands related to Leiana’ party – delivering cupcakes to her pre-school, shopping for Lieana’s birthday present. The pair was on the way home, southbound on Arroyo Seco Parkway in South Pasadena, when Samika felt her Nissan Altima swerve, and thinking she had a flat, regained control of her vehicle, stopped in the left-most lane and put on her flashers. The divided highway had no breakdown lane, just a narrow shoulder.

 Ramirez was about to call AAA, when another driver, who hadn’t noticed the stopped Altima, plowed into its rear end. The vehicle almost immediately caught fire. According to the police reports, Samika tried frantically to unbuckle her daughter, but could not release the harness. The flames engulfing her car were too intense, and onlookers pulled Samika Ramirez out of the car, while Leianna stayed behind. She witnessed her daughter’s death.

 More than a year later, the National Highway Traffic Safety Administration would open an investigation – still pending – that would eventually result in a recall of the Graco Nautilus and 17 other models for buckles that were so difficult to unlatch that some consumers complained to NHTSA that they had to cut the belt webbing to get their children out of the seat. And, from the beginning, Graco would concede that it was “keenly aware of the issue.” Indeed, it had collected more than 6,100 complaints about it.

 But Graco insisted that the inability to extract a child from the car seat was merely “a consumer frustration and a consumer experience that Graco has been working to improve.” To this date, Graco has not acknowledged that this defect led to a horrific death – not in its responses to the agency’s investigative information requests; not in its Part 573 Defect and Noncompliance Report and not in its Early Warning Reports. The company paid a big fine to the U.S. Consumer Product Safety Commission in 2005 for a long history of failing to report injuries and deaths. Even now, with the initial recall expanded and under a Special Order to answer all questions truthfully, Graco comforts its customers on its website:

 Graco can assure you there have been no reported injuries as a result of the harness buckles used on Graco car seats. We want to stress that our car seats are safe and effective in restraining children.  And, the safest way to transport a child is always in a car seat.

 NHTSA declined to comment on Graco’s stance, via a statement to The Safety Record:

 “Although Graco has submitted a defect notice in response to NHTSA’s recall request, our investigation remains open.  As such, the agency cannot discuss or comment at this time.”

 Attorney Christine Spagnoli, who represents the Ramirez family, says that Graco’s failure to acknowledge Leiana’s death will negatively affect the efficacy of the recall”

 “To me the issue is this: by putting on their website that there are no reported claims and by telling that to NHTSA, They are trying to dissuade people from getting new buckles,” says Spagnoli of Greene, Broillet & Wheeler, LLP. “This is a safety issue, and by saying something false to the public, they’re trying to save money, at the expense of kids getting hurt.”

 The Investigation

 The Preliminary Evaluation into Graco buckles opened in October 2012 with 25 complaints reported to NHTSA via their Vehicle Owners Questionnaire database, containing hypotheticals that echoed the Ramirez incident, like this one, filed with the agency in September 2012:

Further Tinkering to EWR Unlikely to Make it More Useful

The National Highway Traffic Safety Administration is proposing amendments to the Early Warning Reporting system, ostensibly to sharpen it as a tool in the Office of Defects Investigation’s back pocket, but outside researchers who regularly parse EWR data say that the proposal misses huge opportunities to actually make the system better. 

In 2000, Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act in the wake of the Ford Explorer/Firestone tire fiasco. The Early Warning Reporting system, a major component of the legislation, requires manufacturers to submit reams of death, injury, property damage and warranty data to the government on a quarterly basis. The information was supposed to help government investigators identify defect trends before they become full-blown debacles.

And yet, nearly a decade later, EWR did nothing to prevent the Toyota Unintended Acceleration disaster that has resulted in deaths, injuries, property damage crashes, 11 recalls related to floor mat entrapment, trim panel interference and sticking accelerator pedals, the alleged causes of the unintended acceleration complaints. So, you might expect that the agency, which could never have seen that one coming – what with the numerous consumer petitions pleading for answers, serial investigations into the problem, and recalls that never seem to make the complaints go away – would adjust its EWR reporting categories accordingly.

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