Senate Holds Hearings on NHTSA and House Releases Staff Report on GM Ignition Switch

Another big day for NHTSA as the Senate Committee on Commerce, Science, and Transportation’s Subcommittee on Consumer Protection, Product Safety, and Insurance will hold a hearings today at 2:30 pm titled “Oversight of and Policy Considerations for the National Highway Traffic Safety Administration,” chaired by Subcommittee Chairman Claire McCaskill (D-MO).  Earlier today House Committee on Energy and Commerce released its Staff Report on the GM ignition switch crises. 

SRS Sues Florida DOT for Guardrail Docs

Safety Research & Strategies, an automobile and product safety research and consulting firm based in Rehoboth, Mass. filed an open records lawsuit in Florida state court, alleging that the state’s Department of Transportation violated the Florida Public Records Act when it withheld documents pertaining to its relationship with guardrail manufacturer Trinity Industries pending a review by the company.

The lawsuit, filed today by Florida State Representative Matthew L. Gaetz  (R-Dist. 4) asks the Circuit Court of the Second Judicial Circuit for Leon County to compel the FDOT to release the materials SRS requested on February 10,  associated with inquiries, investigations, and communications between FDOT and Trinity regarding the design, manufacture, failure, purchase and testing of Trinity ET-Plus guardrail systems. SRS also asked for documents related to any motor vehicle accidents involving ET-Plus and consumer complaints about the safety of the system.

The Dallas, Texas-based manufacturer, a globally dominant producer and seller of guardrail systems has been under fire since 2012, when a competitor, SPIG Industries, of Bristol, Va. charged that sometime between 2002 and 2005, Trinity modified the design of its guardrail end terminals, causing it to perform poorly in crashes and injure and kill occupants in striking vehicles. These allegations have been the subject of numerous news stories abroad and in the U.S., including the Florida media.

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.

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.”

Burning Questions: Why Did NHTSA Let Chrysler Slide?

Last Friday, David Shepardson of the Detroit News announced for NHTSA what many knew was coming: the 1993-2004 Grand Cherokee and 2002 - 2007 Jeep Liberty rear-impact fuel-fed fires investigation is over. No recall. The ornamental trailer hitch will stand as a symbolic gesture of a remedy.

This one has all the hallmarks of what has become an Office of Defects Investigation classic: design defect too difficult/costly to correct? Check. Bogus, untested remedy? Check. Appearance of action? Check.

You could tell that NHTSA was real proud of its work by the timing of the disclosure: 5 p.m. on a Friday before a holiday weekend. Classic public relations bury-the-news-and-hope-nobody-notices move. Release the information, and head home for the holidays. Classic and classy!

“Words cannot describe how disappointed I am in NHTSA and US DOT in general,” says Jenelle Embrey, the fiery Linden, Virginia woman who teamed up with the Center for Auto Safety to advocate for a recall on the older model Jeeps with the fuel tank aft of the rear axle design. Embrey launched her own crusade after witnessing the deaths of 18-year-old Acoye Breckenridge and the driver Heather Lee Santor in an October 2012 crash. Embrey’s dad, Harry Hamilton, managed to save one occupant of Jeep Grand Cherokee before it exploded.

Strickland Takes Express to Lobbytown

Well, we cracked open our virtual newspaper the other morning and found a bunch of non-news – winter is cold, New Jersey Governor Chris Christie’s a bully, and such. On the inside page, however, was a non-news story of particular interest: Former NHTSA Administrator David Strickland is leaving public service to re-enter public service as a lobbyist for the venerable firm of Venable LLP, which describes its business thus:

 "As the federal government’s regulatory reach expands, it is more important than ever to have a finger on the pulse of legislative and executive branch decision makers in Washington. Long recognized as one of the capitol’s leading law firms, Venable’s Washington office helps clients understand how evolving regulatory and policy issues can affect their businesses. The firm also assists clients in making their voices heard as policy is being crafted through both direct lobbying and the management of numerous issue-focused industry coalitions."

On its website, Venable boasts about helping clients clear regulatory hurdles, and successfully defending clients in product liability cases involving asbestos, tobacco, automobiles, industrial chemicals, and consumer electronics, as one of the nation’s “top defense firms.”

In hiring Strickland, Venable described him thus:

“An advocate for public safety on the roads, David has impressed the industry with his accomplishments,” said Brock R. Landry, co-chair of Venable’s Government Division. “From the Hill to the Administration, David is well respected and understands the often complex regulatory process from different points of view. He will play a key role in the ongoing growth of our Government Affairs, Automotive, and Technology practices.”

 

We think that the thing industry will be most impressed by was the pass David Strickland gave Toyota’s electronics in the Unintended Acceleration crisis. Sure, the government fined Toyota to the max. But the automaker only had to pay penalties for failing to mount timely recalls for floor mat interference and sticky accelerator pedals. NHTSA whitewashed the problems of Toyota’s electronic throttle control system. And, it was still chump change to the automaker. More importantly, it gave Toyota a federal cover in litigation against claims of an electronics defect. And, while the explosive Bookout verdict kinda blew that cover off with the conclusion of two respected experts that Toyota’s software was dangerous spaghetti code, (See Toyota Unintended Acceleration and the Big Bowl of “Spaghetti” Code) Strickland, as Robin to Former Transportation Secretary Ray LaHood’s Batman, did his part.

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)

Will the UK Be the First with a Tire Age Rule?

The National Highway Traffic Safety Administration has had an open rulemaking docket on tire age degradation (i.e., thermo-oxidative aging) since 2003, but will the UK beat the U.S. to actual tire age legislation? Frances Molloy isn’t in an international race, but she is determined to see Great Britain adopt a tire age policy sooner rather than later. Molloy’s 18-year-old son Michael perished in September 2012 along with another 23-year-old passenger and the driver in a bus crash caused by the catastrophic failure of a 19-and-a-half-year-old tire. The tire had been purchased secondhand by Merseypride Travel, which owned the 52-seat coach. It had legal tread depth, but was older than Michael.

“The risk to life from old tires -- no one can put a price on that. It’s been complete devastation,” says Molloy of the impact on her family. Michael, a promising musician, was on his way home after attending a musical festival in the Isle of Wight. “He was only 18 -- there was no other reason for the crash in the inquest -- other than the tire.”

Molloy, forensic crash investigator David Price and Surrey Coroner Richard Travers are campaigning to change the laws in Great Britain to prevent another such crash. In July, Travers formally announced that he would be writing a rule-43 report to alert the Secretary of State for Transport to the threat aged tires pose to public health. Travers’ report gives the Secretary a matched set. Three years ago, the Gloucestershire coroner did the same, after the 2009 death of Nazma Shaheen, whose crash was tied to the failure of a 13-year-old tire.

On November 20, Molloy and Price met with Secretary of State Patrick McLoughlin, who reports directly to the Prime Minister. He assured her a response in two weeks.

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