DOT Settles Lawsuit over Toyota UA Documents, New Congressional Inquiry Raises More Questions

The dam against electronically caused unintended acceleration in Toyotas that the National Highway Traffic Safety Administration and Toyota built, with outrage, secrecy, pedal interference recalls, and capped with the February 2011 NHTSA-NASA report springs more leaks. The question is: Can they keep it from collapsing entirely?

Safety Research & Strategies continues to examine information showing that unintended acceleration still plagues Toyota vehicles and that many incidents cannot be explained by floor mats, bad drivers and sticky pedals. Recently, the Department of Transportation settled a Freedom of Information Act (FOIA) lawsuit with SRS, agreeing to turn over investigatory documents, videos and photos related to the agency’s involvement with a 2011 recall of Toyota and Lexus models for alleged accelerator entrapment by interior trim. (The agency also agreed to pay our lawyer’s fees – this from the Most Transparent Administration Ever.)

The recall was precipitated by the Timothy Scott incident. Scott is a former 2007 Lexus RX owner who reported a frightening UA event as he headed home from the gym one morning. In short order, Toyota bought Scott’s vehicle, and pronounced it a case of trim interference. NHTSA never looked at Scott’s Lexus, but began to investigate this root cause in other vehicles. Within six weeks, Toyota recalled the vehicles and NHTSA was all done.

We were eager to see just what the agency found out about the possibility of trim interference as a root cause of UA and what it didn’t want to show us– enough, at least, to try to stash it behind Exemption 5 of the FOIA, which protects agency deliberations. Imagine our amazement when the videos – sans audio- appear to show that the Lexus RX trim does not interfere with the accelerator -- or, not without a lot of manipulation of exemplar vehicles. We are no closer to understanding why NHTSA dropped its investigation, or how trim interference can cause a UA like Tim Scott experienced, or, more importantly, why we had to sue the DOT to get this.

Toyota and the Case of the Electronic Floor Mat Entrapment

As the last work week in June slouched to a close, Toyota announced another floor mat recall – this time for 154,000 model year 2010 Lexus RX350 and RX450 H vehicles. Frankly, we were slack jawed. This is the automaker’s fifth floor mat recall since 2005 and the eleventh alleging that unintended acceleration was caused by something interfering with the accelerator pedal – all weather mats, plastic trim, condensation in the pedal’s friction lever. That’s double digits, people.

NHTSA quickly claimed credit for influencing the recall:

“NHTSA approached Toyota regarding this issue late last month after the agency observed an increase in consumer complaints and other reports regarding pedal entrapment in these vehicles. When Toyota confirmed last week that it had received a significant volume of complaints on the same issue, NHTSA asked the manufacturer to conduct a recall.”

We guess that at this point, NHTSA and Toyota are tight enough that the agency can dispense with the whole investigation thing and just pick up the phone. So, the public doesn’t know what data the agency collected, and how many complaints directly to Toyota constitutes “a significant volume.”

The agency said that it had “carefully” reviewed “the available data” and “does not currently believe the issue involves additional vehicles beyond those indicated as part of the recall.” “..NHTSA anticipates the remedy proposed by Toyota will address the problem.”

Sadly, we do not share the agency’s confidence.  We have carefully reviewed the 2010 RX350 speed control complaints and we noticed something pretty interesting. Drivers were reporting that during the unintended acceleration event, the “brake failure” telltale on the dash was lit up. Check out ODI 10445439, reported to NHTSA last October:

On Oct. 5, 2011 at 7:45 am, I was traveling on a one lane road each way in rural Connecticut (35 mph zone). I decided to pass a car that was traveling well below the speed limit when my Lexus RX350 lurched forward suddenly and then had a huge burst of accelerating speed. I applied my foot to the brakes and the car slowed very slightly, but started to buck a little and then once again felt like it kicked into a higher gear. My dashboard was flashing "brake failure." as I looked down and saw that my foot was firmly planted down on the brakes. Fortunately, there were few cars on the road and only once did I have to pass a car on a blind curve hoping no one was approaching from the other way, so as to avoid ramming a car in front of me. I had resolved in my mind that I was going to crash, and was trying to find a place to take the car off the road while trying to minimize injury to me. I stopped looking at my speed, but it was clearly in excess of 60 mph in a 35 mph zone. I was lucky that day, since there were few cars on the road and the stretch of road I was on was fairly straight. I drove this way for about 1.5 miles when it then occurred to me to shift the car into neutral. Once I did this, the car eventually reduced speed to about 5-10 mph. I threw the car into park and jumped out of the vehicle, which at this point was engulfed in smoke from the failed brakes. Lexus blamed the incident on a stuck accelerator pad, although they admitted when the car came to their shop the pad was not stuck. I know factually that the pad was not stuck, since I looked down at my feet during the episode and saw my foot on the brake, and the accelerator pad in its normal position. This was clearly an incident of sudden acceleration.

Or ODI 10445422, concerning a January 25 UA:

“I went out to grab a bite to eat for my daughter and I came to a stop light at a major intersection. I received the turn arrow so I accelerated thru the turn and then punched the gas to make it thru the next light that will turn red if you don't give it a little gas to get thru it. I make it thru the light and get in the right lane to slow down to make my turn and my brakes don't work and my car starts accelerating on its own. I have no control of the speed so I throw the car in neutral and keep slamming the brakes while the brake malfunction light appears. I’m not sure how my car slows down and I make a right turn into a parking lot and my engine is still sounding like it is accelerating and I am in neutral. My car rolled to a stop, I shut it down and called the Lexus line. The [sic] had a towing company out within an hour and the tow truck driver told me this is at least the 10th time he has hauled this type of car for the same thing.”

Sudden Unintended Braking: The Mercedes Problem that Didn’t Go Away

German engineering ain’t what it used to be.

Melissa Marsala, a Mercedes owner from Cape Coral, Fla., was driving her 2001 ML430 at about 45 mph down a main thoroughfare, when her vehicle suddenly went into braking mode. The two vehicles behind her in the inner left lane slammed on their brakes to avoid a collision, and Marsala was able to ease the bucking vehicle onto the grassy median that divided the roadway.

“It terrified me,” Marsala recalled. “There was no reason for the brakes to engage. I was trying to come to a full stop but the car went boom-boom-boom-boom. It happened in an interval that was so quick. The car was skipping, smoke was coming off the wheel wells and you could smell the rubber burning. I veered it right into the median strip and it stopped itself.”

Those moments of sheer fright were courtesy of a malfunctioning yaw sensor – a problem primarily in the M-Class – well known to Mercedes, some M-class owners and the National Highway Traffic Safety Administration’s Office of Defects Investigation. In 2007, NHTSA opened and quickly closed a Preliminary Evaluation into sudden unintended braking involving about 100,000 MY 2000-2001 M-class vehicles, without taking any action.

In May of 2007, Mercedes explained it all away to ODI at a presentation in which the automaker simulated electrical faults in the yaw rate sensor and showed how “the ESP [Electronic Stability Program] system is programmed to diagnose electrical faults and that brake applications resulting from yaw rate sensor electrical faults are very short in duration (0.3 seconds or less) and don’t affect vehicle control or stability.” NHTSA’s Vehicle Research and Test Center was unable to duplicate the problem in a vehicle that had experienced multiple events; and ODI’s attitude was: no documented crashes, low complaint rate, no problem.

NHTSA Proposes Rubber Stamp Brake Throttle Override Rule

For the second time in 40 years, the National Highway Traffic Safety Administration is attempting to upgrade the accelerator control standard by proposing that manufacturers be required to equip all vehicles with a brake override.  A brake override system cuts throttle voltage in electronic throttle control (ETC) vehicles when the brakes and throttle are in conflict. Variations of this type of fail-safe have been incorporated in a number of ETC equipped vehicles since the 1990s.

“We considered establishing a design requirement as the sole requirement for BTO, but the differences among BTO systems currently available from different vehicle manufacturers are significant enough that a design requirement by itself cannot effectively accommodate them all without being overly complex and/or design restrictive. By combining a relatively simple performance test with the basic equipment requirement described above, we can achieve a robust standard which is largely performance-based and minimally costly or burdensome.”

The Notice of Proposed Rulemaking is in direct reaction to the Toyota Unintended Acceleration (UA) crisis, noting the August 2009 deaths of California Highway Patrol Officer Mark Saylor, his wife, daughter and brother-in-law in Lexus ES350 loaner that experienced a UA event at highway speed. But, the proposal appears to be more of a political response than a technological one. It ignores past recalls for UA events that are electronically caused; and it fails to base this upgrade on any statistical analysis. It merely codifies manufacturers’ current equipment without teasing out the differences between more effective and less effective brake override systems, such as the Toyota system, which doesn’t activate in some of the most frequently reported UA scenarios – when the driver’s foot is on the brake – or on no pedal. According to Toyota’s “Smart Stop Technology,” “the feature doesn’t engage if the brake pedal is depressed before the accelerator pedal. The driver must press the accelerator first and then depress the brake.”

Antony Anderson, a U.K.-based electrical engineering consultant who has studied unintended acceleration, says that the rule fundamentally misses the essential ingredient in any failsafe system – independence from the malfunctioning component. This is why many machines, from motorcycles to escalators, have separate kill switches that can independently remove power from the throttle, he says.

“For some reason, the automobile industry seems to think they don’t need to bother,” Anderson says. [The agency] “has a well-developed NHTSA-speak, where they are all the time trying to minimize the possibility of an electronic malfunction.”

“This just captures the state of the industry, not the state of the art,” says Neil Hanneman, an automotive engineer who have overseen automotive electronic designs and has consulted with Congress on Toyota unintended acceleration. “For it to really be a robust standard it would have to address things that have not been addressed yet – which will be with the electronics.”

Technical Upstart Schools NHTSA on Toyota Electronics

Why can’t consumers get with the program?

Toyota – even with its technical difficulties, bad press and a tsunami that devastated Japan last year – is still a very wealthy corporation with a multi-billion-dollar bottom line. We shudder to contemplate how many millions the automaker spent on public relations, intimidation campaigns, advertisements, image consultants, outside counsel and scientists for hire. The money was laid on thickly enough to keep things cozy on almost all fronts.

And yet….it cannot stop the maddening trickle of unintended acceleration crashes into supermarkets, restaurants and other benighted retail establishments. And it cannot stop the drip, drip, drip of questions from consumers. We are still reading Toyota UA complaints with great interest, and recently we came upon a complaint from a 2004 Tacoma owner from Hopkinton, New Hampshire who witnessed a UA event in his driveway – much like two Office of Defects Investigation engineers did about a year ago in the presence of Prius owner Joseph McClelland (see Government Officials Video Electronic Unintended Acceleration in Toyota: NHTSA Hides Information, SRS Sues Agency for Records)

Like Mr. McClelland, an electrical engineer who happened to be the director of the Federal Energy Regulatory Commission’s Office of Electric Reliability, this gentleman is not a typical consumer. He is, by his own description, an engineer who wrote a book on troubleshooting servo systems. Like Southern Illinois University Automotive Electronics Professor David Gilbert, another curious Toyota owner with the technical skills to run some tests, he has noted the lack of fail safes and redundancies and the high risk to safety.

Here is his April 18 report to NHTSA:

Automakers Blame Drivers, But Settle Unintended Acceleration Cases

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.

Why Toyota Has a Whisker Across its Bumper

When you’ve shelled out big bucks for a message, the dissenters have to be squashed – and fast. Yesterday, Toyota public relations rapid response team tried to bring the Toyota Unintended Acceleration (UA) problem back into its multi-million-dollar corral at the There’s Nothing to See Here, Folks Ranch.

Mike Michels, Vice President for External Communications of Toyota Motor Sales, U.S.A., wrote an editorial, in response to a well-reported and written story by the Huffington Post’s Sharon Silke Carty about one of the most significant physical findings of the NASA Engineering Safety Center’s (NESC) study of the electronic causes of unintended acceleration in Toyota vehicles: tin whiskers. Tin whiskers are crystalline structures that emanate from tin and other alloys used as solder on printed circuit boards. These nearly microscopic metal hairs can bridge circuits, leading to electrical shorts and significant malfunctions. They have caused failures at nuclear power plants and medical devices and downed satellites. While we don’t believe that they are the cause of UA in all Toyota vehicles. Clearly, tin whiskers have been strongly implicated as a cause of UA in some Toyota vehicles.

NHTSA: No Evidence Prius Unintended Acceleration Linked to Known Causes

The National Highway Traffic Safety Administration has acknowledged what it has emphatically denied so far: Not all instances of Toyota Unintended Acceleration are linked to sticky pedals, floor mats or driver error. The UAs in a 2003 Prius witnessed by ODI engineers last May were not linked to “known causes.”

True, the agency response (see second page of report) to reporters’ questions about the Unintended Acceleration events two Office of Defects Investigations engineers witnessed, videoed and captured data from was tortured. The most interesting admission was swaddled in a lot of hot air about how wonderful and competent the agency is at ferreting out problems and protecting consumers, but it was there:

“We sent two investigators to evaluate and inspect a vehicle based on a complaint we received (complaint number 10428551) and did not find any evidence linking the car to known causes of unintended acceleration cases,” [emphasis ours] the agency said in a statement. “NHTSA concluded that the speed of the vehicle could easily be controlled by the brakes. In contrast to other UA complaints, the vehicle displayed ample warning lights for the driver indicating the car had encountered problems.”

Nine Recalls, Ten Investigations and Toyota Unintended Acceleration Continues

As part of our ongoing investigation into Unintended Acceleration in Toyota vehicles, Safety Research & Strategies has identified 330 UA complaints reported to the National Highway Traffic Safety Administration for incidents that occurred in 2011. These complaints range from consumers who experienced multiple instances of UA to events that resulted in a crash. Below, we’ve captured six of those stories in interviews with Toyota owners.

In addition, a separate review identified 247 unique UA incidents following repairs made to the vehicle in one or more of the Toyota recall remedies.

The 2011 NHTSA complaint data suggest that Toyota has not recalled all of the vehicles in need of a remedy. The post-recall UA incidents, reported to the agency between February 2010 and January 2012, further suggest that the remedies were ineffective.

What is most striking in reading the 2011 complaints is how little anything has changed. The most troubled vehicles – the Camry, the Tacoma and Lexus ES350 – continue to show up in the complaints. The scenarios vehicle owners report are the same:

* Low speed incidents, often described as occurring while parking or repositioning a vehicle, during which vehicles accelerate or surge very quickly while the driver is braking or lightly pressing on the accelerator pedal.

* High speed incidents, often described as occurring on highways, during which vehicle speed increases without increased driver pressure on the accelerator pedal, or highway speed that is maintained after the driver has removed his or her foot from the accelerator pedal.

* Incidents in which vehicles are described as hesitating, surging, or lurching. Consumers reporting this type of incident often indicate that their vehicles are not immediately responsive to pressure on the accelerator pedal; instead there is a delay between operator input and acceleration, followed by higher acceleration than intended, often described as a surge or lurch.

    As ever, the vast majority are low-speed/parking incidents, resulting in property damage. However, there continue to be high-speed, long duration events and cruise control-related events. Toyota dutifully inspects these vehicles and tells the owner that the car is “operating as designed.” Dealers continue to follow the floor mat/driver error script.

    One thing that appears to have changed: more Toyota owners, now educated about Toyota’s UA problems, have a strategy for dealing with an incident and also take note of the position of their feet. Many drivers specifically report braking at the time of the UA, and shifting the transmission into neutral to bring the vehicle under control. Here are their stories.

    How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today

    Last month, we reported a Florida circuit judge’s extraordinary decision to set aside a civil jury verdict in favor of Ford Motor Company, based on evidence and testimony that Ford had concealed an electronic cause of unintended acceleration from the National Highway Traffic Safety Administration – and its own expert witnesses. Judge William T. Swigert’s 51-page decision in Stimpson v Ford also outlines how decades of the automaker’s dissembling to limit its liability in civil lawsuits helped to mire the thinking about root causes of unintended acceleration in the limited context of mechanical agency, even as the electronic sophistication – and the potential for defects and unanticipated interactions between systems – in vehicles grew.

    That a large corporation would conceal a deadly problem to protect its interests is hardly news – although the systemic and exacting strategies Ford employed in this case are notable. What makes this story important is how Ford also re-wrote the history on this issue and helped to shape the agency’s thinking about an ongoing problem for decades hence. We have only the public record regarding Toyota UA at our disposal – and precious little of that has actually been made public – so we can’t know how Toyota has assessed its own UA problem; if and what parallels in corporate misdirection might be drawn between Ford and Toyota. But one can see how Ford’s actions back in the 1980s still resonate with the agency today and how it has kept NHTSA from advancing its knowledge in electronic causes of UA that are not already detected by the vehicle diagnostics.

    The Emergence of a Defect in the Age of Audi SUA

    As recounted in the Judge Swigert’s order, the history of Ford and unintended acceleration goes back to 1973, when Ford’s cruise control was under development. Ford Engineer William Follmer “warned about the risk posed by electromagnetic interference, and cautioned that ‘to avoid disaster’ it was imperative to incorporate failsafe protection against EMI in the system’s design.” In 1976, two Ford engineers obtained a patent describing a design for the cruise control system's printed circuit board to reduce the risk of a sudden acceleration posed by EMI.

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