NHTSA Denies Toyota Unintended Acceleration Defect Petition

Eight months after a Bristol, RI Toyota Corolla owner petitioned the National Highway Traffic Safety Administration to investigate low-speed surges into Toyota Corollas, the agency has denied the petition, concluding:

Toyota’s Billion Dollar Web

Back in 2010, after Toyota announced that a federal grand jury in New York had subpoenaed the company on June 29 for documents regarding relay rod failures in Toyota truck models, we asked if the automaker would be the first to be prosecuted under the Transportation Recall Enhanced Accountability and Documentation Act (TREAD).

Well, right question, wrong defect.

Under the settlement with the Department of Justice announced today, Toyota is banged for $1.2 billion, and prosecution for committing one count of wire fraud is deferred for three years, for the lies it told about the floor mat entrapment and sticky pedal recalls. According to Toyota’s Statement of Facts, the automaker sought to limit its floor mat recalls, even though the entrapment hazard affected other models, and resisted the sticky pedal recall, even though Toyota had addressed the problem in Europe.

“This sends a mixed message,” says Sean Kane, president of Safety Research & Strategies. “On the one hand, a $1.2 billion fine is a very significant hit. But the government’s focus is only on the narrow areas of the floor mats and sticky pedals. The bulk of Toyota vehicles experiencing Unintended Acceleration problems were never recalled.  That billion dollars doesn’t do a thing for Toyota owners stuck with defective vehicles.”

The skeleton of this particular set of lies have been in the public domain for several years. In April 2010, when former Secretary of Transportation Ray LaHood announced that the agency had imposed a $16.4 million fine on Toyota for failing to recall 2.3 million vehicles with defective accelerator pedals – then the largest civil penalty NHTSA had levied against an automaker – the Secretary failed to make public the documents laying out his rationale. In May 2011, NHTSA quietly posted the sternly worded demand letter that explained why Toyota got slapped.

To remind our readers, Toyota recalled the CTS supplied pedal in Europe in September 2009, but waited until January 2010 to recall the pedals in the U.S. However, on October 7, 2009, “a staff member of the Toyota Motor Corporation Product Planning and Management Division sent a copy of an Engineering Design Instruction describing the pedal remedy that was already implemented in Europe to someone at Toyota Motor Engineering and Manufacturing North America, Inc. for the accelerator pedal of a RAV 4 manufactured in Canada. Two weeks later “a member of the TMC PPM inexplicably instructed a member of the TEMA PPM not to implement this Engineering Change Instruction. Furthermore, in November 2009, Toyota provided NHTSA with FTRs regarding sticking accelerator pedals on vehicles in the United States but not with information regarding Toyota’s extensive testing and determinations regarding the cause of the sticking accelerator pedals or an explanation of the significance of the FTRs, the demand letter said.

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.”

Toyota Lawsuits Wrapped?

Toyota is looking to close out its unintended acceleration crisis, with a speedy resolution to the remaining lawsuits out there. According to news reports, the automaker has been inspired by the Bookout verdict to settle a whole passel of UA lawsuits. Last month, for example, Toyota came to terms with Opal Gay Vance, a West Virginia woman who injured her neck and back, when her 2010 Camry suddenly accelerated, striking a trailer. The confidential settlement forestalled a trial set to begin on Jan. 21. In California, orders from judges in the U.S. District Court in Santa Ana and Los Angeles Superior Court opened the door to settlements in nearly 300 death and injury plaintiffs’ cases.

“We’re glad to see that Toyota has decided to approach this in a systematic and forthright way, and we look forward to seeing most of the pending claims settled in early 2014,” says attorney Donald Slavik of Robinson, Calcagnie, Robinson, Shapiro, Davis Inc. of Newport Beach, CA.

The race to empty the court dockets should not be confused with a conclusion to Toyota’s UA technical problems, which continue unabated. SRS took a stroll through the Vehicle Owners Questionnaire database, looking for 2013 UA complaints and found more than 300. They cover all of the classic scenarios, like this one:

"I backed my 2006 Toyota Corolla into a friend's driveway, and then put the car into drive to straighten it a bit. The car suddenly without warning shot across the street (perhaps at 45-50 mph), went over a 6" high cement retaining curbing, and across a lawn into another driveway. All the while I had my foot firmly on the brake (not the gas pedal). I swerved the wheel to avoid hitting a telephone pole, and the house. I finally got the car into neutral, and at last the brakes engaged, and I was able to stop the car avoiding a pick-up truck in the driveway and a tree. During this entire time the engine was loudly revving. Other than 3 shredded tires and 2 ruined rims, the car seems to be intact. I have contacted Toyota and hope for a successful resolution. The service manager at the dealership where this vehicle was purchased, however, said that since it is not under recall there is nothing they can do. Meanwhile I will be fearful every time I get behind the wheel, which I have yet to do!    3 new tires and 2 new rims is a small price to pay - it could have been my life! Had cars been passing by on this normally busy street, or children walking on the sidewalk on their way home from school - other lives as well could have been taken. This was a terrifying event! Judging from all of the similar stories written regarding this make, model and year, Toyota needs to do a recall to solve this problem once and for all." (ODI 10496026)

The Toyota Claimants Are Getting Restless

The $1.63 billion deal in the Toyota Unintended Acceleration economic damages multi-district litigation worked out between the lawyers for Toyota and Hagens Berman, Sobol, Shapiro, and Susman Godfrey the firms representing 22.6 million consumers is headed for a final approval hearing before U.S. District Judge James Selna  on June 14, and really, who could complain?

Toyota gets to continue to claim that its electronics are just fine while funding research blaming drivers for runaway vehicles that it can stash in its back pocket for future unintended acceleration product liability lawsuits. Some Toyota owners – but not those of the most troubled model years will get a brake override system that sorta, kinda may work sometimes under select conditions (hint—don’t put your foot on the brake first).

There’s $250 million for consumers whose vehicles are ineligible for a brake override retrofit. The cash payouts for those folks range from $37.50 to $125. Let’s see. That ought to cover an oil change, a new set of windshield wiper blades, and a Vente Mocha Chip Frappacino at Starbucks to sip while you wait. Done!

A Defect Remedy Delayed?

Well, we guess that the Christmas bonuses at Toyota are going to be a wee bit smaller this year, since the National Highway Traffic Safety Administration pocketed about 12 hours of profit from the automotive giant for failing to launch a timely recall for flying floor mats in the 2010 Lexus RX 350.

Yesterday, Toyota agreed to settle the government’s claim that it failed to file a Part 573 report to the government within the mandatory five days after discovering a defect requiring a recall for $17.35 million. According to the settlement agreement, Toyota admitted to NHTSA that it knew of 63 alleged incidents of possible floor mat pedal entrapment in Model Year 2010 Lexus RX models since 2009.

That brings the Total Timeliness Simoleans (TTS) Toyota has paid to NHTSA in two years to more than $66 million. Now, Toyota may be setting all kinds of NHTSA civil penalty records, but when one considers that the company reportedly posted a $3.2 billion profit in just the third quarter, one realizes, that by any-pain-in-the-pocketbook standard, this fine ain’t nothing.

In a statement dripping with gravitas, NHTSA Administrator David Strickland said: “Every moment of delay has the potential to lead to deaths or injuries on our nation's highways.”

This fine stems from a NHTSA-influenced floor mat interference recall last summer involving 2010 Lexus RX350 vehicles. In May 2012, the agency’s Office of Defects Investigation asked Toyota to review nine Vehicle Owner Questionnaires that indicated a floor mat entrapment problem for the 2010 RX. Toyota then reviewed its records for “additional reports that could indicate circumstances that may be consistent with potential floor mat entrapment.” On June 22, the automaker presented to ODI cases in which “potential floor mat entrapment was possible or alleged to have occurred in the subject,” including a timeline when each of the reports was received,” according to Toyota. On June 29, Toyota announced its 11th recall related to unintended acceleration, for alleged pedal entrapment by the All-Weather Floor Mat, involving the 2010 Lexus RX350 2010 and RX450 H vehicles.

Why is Toyota Recalling the Land Cruiser?

The Toyota Unintended Acceleration floor mat recalls are now assuming the sprawling Del-Boca-Vista proportions of a seniors-only condo development in Sarasota. Last week, Toyota announced Phase 12 of its accelerator pedal modification and floor mat replacement recall. The newest vehicles to join the 14 million that have been recalled worldwide for unintended acceleration are 10,500 Toyota Land Cruisers in the 2008-2011 model years.

The remedy involves modifying the rigid plastic accelerator pedal, and equipping the vehicle with newly designed Toyota All Weather Floor Mats. 

 Now every time we hear about another Toyota floor mat recall, we kick ourselves for not buying rubber futures. But, this one has us wondering. Number one: there has been no public announcement of the recall. It is nowhere to be found on Toyota’s website.  Two: all of the documents in the public file for Recall 12V305 are not for the Land Cruiser, but for this summer’s recall of the Lexus RX350 and 450. Unintended Acceleration Recall Number 11, you may remember, was triggered by a NHTSA inquiry:

 “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.”

Lexus RX Floor Mat Recall: NHTSA’s House of Cards Adds a New Floor

An examination of NHTSA records surrounding a June recall for floor mat interference in 2010 Lexus RX350 vehicles shows that the National Highway Traffic Safety Administration used mischaracterized data to buttress its request that Toyota recall the floor mats. Further, NHTSA ignored obvious clues that there might be an electronic root cause for the unintended acceleration complaints consumers filed with the agency.

These documents affirm the pattern that has characterized NHTSA’s Toyota Unintended Acceleration investigations – both informal and official -- since 2004:

  1. Dismiss the consumer’s description of the event, unless it conforms to the agency’s presumption of driver error or mechanical interference.
  2. Accept the explanations of the automaker or dealership of driver error or mechanical interference as completely accurate – even in the absence of any empirical evidence to support the contention.
  3. Dismiss any evidence of an electronic cause
  4. Settle for a limited, ineffective recall.
  5. Wait for another high-profile incident, consumer petition or accumulation of complaints to repeat the process

SRS has been examining the factual underpinnings of NHTSA’s actions in Toyota Unintended Acceleration since 2009. As we have in the past, we submitted a Freedom of Information Act request for all records related to Toyota’s most recent floor mat recall. We received 58 pages of documents, some of which were redacted under FOIA exemptions for confidential business information, personal identifying information and sections deemed “deliberative process.”

As we don’t know what information lies behind the redactions, we cannot assess the totality of the evidence behind NHTSA’s decision to seek a floor mat recall. However, what the unredacted portions show is there is scant evidence of a widespread floor mat interference problem and there is even less logic in the complaints NHTSA claims support its argument that a problem with the mats exists. But, there is much more evidence in the narratives of consumer complaints suggesting electronic causes of UA in 2010 Lexus RX 350.

The Pedal Error Error

If the Toyota Unintended Acceleration has taught us anything, it’s the importance of examining NHTSA’s process before accepting its conclusions. The authority of the federal government automatically confers, in large measure, a public (including the mainstream media) acceptance of its pronouncements of scientific certitude. Few take the time to study their foundations. To this end, SRS has devoted more time and resources to obtaining the agency’s original source documents, data and communications around investigations, rulemakings and NHTSA-sponsored reports than we care to count. We have filed numerous Freedom of Information Act requests in pursuit of these informational bases.

Another thing we have learned: NHTSA really doesn’t want the public to know how it does what it does. Our FOIA requests have morphed into FOIA lawsuits (three and counting), as the agency either denies us information that is public or claims to have none, even when the crumbs NHTSA’s FOIA staff toss to us show unequivocally that, in fact, they do have the information.

And that brings us to Pedal Application Errors, NHTSA’s last nail in the Electronically-Caused UA coffin. This report made a number of strong claims regarding who is likely to make a pedal application error and how it is likely to occur. They do not bode well for any woman of a certain age who has the misfortune to be behind the wheel of an electronically caused UA. The report’s writers based on a variety of data sources, including crashes from the Motor Vehicle Crash Causation Survey (MVCCS), the North Carolina state crash database, a media review of pedal misapplication news stories and the insights garnered from a panel of rehabilitation specialists. Naturally, we wanted to look at all these data, and we requested them.

The response from the government, to put it kindly, was less than complete. NHTSA claimed that it didn’t have any of the underlying data, except the list of crashes from the MVCCS. It sent us the transcript of the one-and-a-half day meeting of rehabilitation specialists and Dr. Richard Schmidt, that prodigious peddler of the all-purpose, wholly unsupported and unscientific pedal misapplication theory the auto industry – and NHTSA – loves.

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.

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