Toyota Electronics = Guilty In Bookout

Toyota this morning quickly settled an Unintended Acceleration case, before it could move into the punitive damages phase – hours after an Oklahoma jury has returned a $3 million verdict against the automaker in a 2007 crash that seriously injured the driver and killed her passenger.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

 The jury yesterday awarded $1.5 million in damages to Bookout and another $1.5 million to the Schwarz family and determined that Toyota acted with “reckless disregard.”

This was the first trial in which the plaintiffs, represented by Graham Esdale and Cole Portis of Beasley Allen in Montgomery, Alabama, made Toyota electronic malfunctions the centerpiece of an Unintended Acceleration case. And what may be significant going forward is not the verdict – although Oklahoma juries are not known for being overly sympathetic to plaintiff – but what is entered into the public record about what Toyota knows about the failures of its Electronic Throttle Control System– Intelligent (ETCS-i) and when they knew it. And what facts will fly from the nest of civil jurisprudence and into the public consciousness.

Toyota’s Motion is Extra-Judicialious!

Two judges have turned down Toyota’s request to bar Plaintiffs from speaking to the press about their unintended acceleration cases.

Guadaloupe Alberto of Flint, Michigan died in April 2008, when her 2005 Camry accelerated out of control, left the roadway and struck a tree. Alberto was known as a cautious driver; the 2005 Camry is known as one Toyota’s most problematic UA vehicles. Alberto v. Toyota is now set for trial in February 2014.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries. Bookout v. Toyota is also soon headed for trial in the District Court of Oklahoma County, Oklahoma.

On Sept. 4, Toyota moved for a gag order in Alberto, to stop the family and its attorneys, including West Virginia lawyers Benjamin Baily and Edgar “Hike” Heiskell III, from talking to the press.

“Defendants believe that statements to the media and the release of witness deposition testimony will have a substantial likelihood of materially prejudicing the proceedings and jury selection as prospective jurors should consider only the evidence present at the trial,” the automaker argued.

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!

Kia and the Breaking Brake Switch that’s Been Broken

Remember Lauri Ulvestad? She was the unfortunate owner of a 2011 KIA Sorrento, which took her on a wild 60-mile ride, at speeds topping out at 115 mph, around sedans and 18-wheelers along the north-bound corridor Interstate 35 in Harrison County, Missouri. The Missouri State Highway Patrol, which escorted Ulvestad until she was able to bring the vehicle to a stop, captured the event with an on-board camera.

At the time, the automaker said that it could not duplicate the event, and that it was “an isolated incident.” But, it bought Ulvestad’s Kia double-quick.

Well, today it turned out that the Ulvestad incident wasn’t so isolated after all. Kia and Hyundai announced that they were recalling 1.9 million vehicles from the 2006-2011 model years for a brake switch failure. The long list of vehicles includes: Hyundai Accent, Elantra, Genesis Coupe, Santa Fe, Sonata, Tucson and Veracruz vehicles and Kias Optima, Rondo, Sedona, Sorento, Soul and Sportage.

According to KIA’s Part 573 Defect and Noncompliance Report:

"The stop lamp switch" (also known as a brake switch) "on vehicles in the subject recall population may experience intermittent switch point contact. This condition could potentially result in intermittent operation of the push-button start feature, intermittent ability to remove the vehicle's shifter from the Park position, illumination of the 'ESC' (Electronic Stability Control) indicator lamp in the instrument cluster, intermittent interference with operation of the cruise control feature, or intermittent operation of the stop lamps. Intermittent operation of the stop lamps increases the risk of a crash."

How does this description square with Lauri Ulvestad’s experience? Let’s see:

Ford Unintended Acceleration Hopping that Class Action Train

It’s Ford’s turn to take a ride down the Unintended Acceleration (UA) class action track. The civil lawsuit, filed in the southern district of West Virginia, with plaintiffs from 14 states, seeks economic damages from any Ford vehicle manufactured between 2002 and 2010 equipped with an electronic throttle control system but not a brake override system. This civil lawsuit seeks economic damages only on behalf of Ford owners and lessors who relied on Ford’s representations of vehicle safety in choosing their products.

As in the recently settled Toyota MDL, the remedy is a brake override system. Hopefully Ford will design one that works in most UA scenarios – unlike Toyota’s version, which does not override the command to accelerate if the brake is already depressed when the UA occurs or at low speeds. (Sorry, all you plate-glass-breaking, drive –through, curb-hopping Toyota parkers who have the misfortune of experiencing a UA event while riding the brakes into a parking spot.)

While Toyota has gotten most of the ink on UA, it is hardly the only automaker grappling with electronic malfunctions in its vehicles. A casual survey of some of pending or recently retired National Highway Traffic Safety Administration investigations and news stories about wild terrifying trips on our nation’s highways shows that Hyundai, Mercedes Benz, Honda, Ford and others have been associated with Unintended Acceleration and Unintended Braking.

Ford, you may recall, was the target in 2011 of Judge William T. Swigert’s ire for lying to the court, the National Highway Traffic Safety Administration, as well as its own expert witnesses on its knowledge of UA. Swigert, Senior Judge of the Florida’s Fifth Judicial Circuit, set aside a jury verdict in favor of Ford in Stimpson v. Ford, because the automaker defrauded the court by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles.

Betsy Spills Toyota’s Beans

To steal a line from Bogie: “Of all the publications in all the websites in all the world, she walks into Corporate Counsel.” She – being Betsy Benjaminson, a freelance translator from Israel who was tasked with translating from Japanese into English documents regarding Toyota Unintended Acceleration. Corporate Counsel -- being the self-described “leading digital destination for in-house counsel to find breaking news and practical information.” And this bit of breaking news? When you lie to the world about an automotive electronics problem that has the potential to result in fatal crashes, don’t expect every underling to keep your secrets.

The story, entitled Is Toyota Telling the Truth About Sudden Acceleration? (Spoiler alert: the answer is: No.) is a fascinating behind-the-scenes look at a company in disarray with a technically challenging problem that its technicians weren’t looking too hard to solve, while its legal and public relations gears clicked into place to drive the denial machine forward. Our favorite:

“Hagiwara and Chris Tinto, a V.P. for technical and regulatory affairs and safety, had been talking about the U.S. investigation and an earlier one in Europe that also involved unintended acceleration (UA).

‘Tinto is extremely pessimistic,’ Hagiwara wrote, ‘and is saying (public hearings, someone will go to jail, I can't completely take care of the pedal problem, etc.).’ Tinto's primary concerns (according to Hagiwara): ‘For NHTSA, we said that our investigations in Europe found that the pedal return is a little slow at a slightly open position, and that there were no accidents, but this is not true. Last year's situation in Europe (many reports of sticking pedals and accidents, and a TI TS9-161 was filed on October 1, 2009) was not reported to NHTSA.’ That failure, Tinto said, ‘may be a violation of the TREAD Act’—the federal law that requires car manufacturers that conduct recalls in foreign countries to report these to U.S. regulators.”

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.

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