Don’t Settle, NHTSA

Yesterday, the agency sent General Motors an extraordinary 27-page Special Order compelling the automaker to answer 107 questions about an ignition defect in the 2005-2007 Chevy Cobalt and six other models that claimed at least 13 lives and injured at least 31.

Retired NHTSA senior enforcement lawyer Alan Kam said that he’d never seen anything like it.

We are encouraged by NHTSA’s aggressive and swift action, and we are hoping and wishing and praying for actual enforcement follow-through that benefits and protects consumers, rather than merely burnishes the agency’s image.

We all know – including GM – that a big, fat fine is in their future for failing to launch a recall within five days of discovering a defect, as Marietta, Ga. attorney Lance Cooper found out. Cooper obtained internal documents during the discovery phase of a lawsuit on behalf of the family of the late Brooke Melton, showing that GM engineers discovered in 2004 that the ignition of the 2005 Cobalt could wander from the run to off or accessory position while the vehicle is underway. 

The sudden loss of engine power, anti-lock brakes and power steering creates an emergency situation exacerbated by the accompanying disabling of the airbags. Melton, 29, perished in a 2010 crash, when her 2005 Cobalt died on a rain-slicked highway, sending it skidding into another vehicle. Her ignition was found in the accessory position; her airbags did not deploy. (Her death is not included in GM’s tally, because the internal team studying the problem only considered frontal crashes in which the airbag did not deploy.)  It took 18 months of Cooper’s dogged pursuit before GM complied with its discovery obligations, turning over materials that made clear the automaker’s early knowledge of the defect and its nearly decade-long history of delay.

So, five days- nine years, tomato-tomahto. But don’t settle, NHTSA until you make GM answer all of the questions – and put it on the record.

Our dearly departed Secretary of Transportation Ray LaHood was a master of the grand gesture and sound-bite safety. He crowed about the big penalties he imposed on Toyota in the unintended acceleration crisis, without making public any of the record that led to those fines, and without resolving the technical defects that continue to threaten Toyota owners today. He gave David Shepardson of the Detroit News an exclusive on his sit-down with Chrysler Group CEO Sergio Chrysler Group CEO Sergio Marchionne to hammer out a completely useless compromise to the rear-impact fuel-fed fire problem that has long plagued the early-model Jeep Grand Cherokees and Jeep Liberty SUVs. Okay, so it wasn’t even a recall. So, the trailer hitches Chrysler agreed to install as a customer satisfaction campaign would do nothing to solve the problem, the automaker itself acknowledged. The important thing was: Didn’t Ray sound masterful in Shepardson’s story? (But enough about Ray talking about Ray. What do you think about Ray?)

In both cases, LaHood employed his let’s-make-a-deal mentality to win the news cycle rather than actually stand up to automakers that make defective autos and then refuse to remedy them so that the public is not exposed to safety hazards.

GM’s first attempt on February 7, was to slide a little recall past the agency. GM acknowledged six deaths in its press release, without including in its official notification to NHTSA, the Part 573 Notice of Defect and Noncompliance, a chronology of the events leading to the decision to recall. This is a matter of black-letter regulation, yet the agency has let many a manufacturer file these incomplete documents, much to the Safety Record’s disgust.

Less than two weeks later, Cooper put the Melton story out there and filed a formal request with the agency for a Timeliness Query. GM said it was awfully sorry, recalled the rest of the affected models, found seven more deaths and filed an amended Part 573, that at least included a chronology, albeit with a lot of holes. Now NHTSA has opened a TQ.

Its Opening Resume does not acknowledge Cooper’s request, and this is another bad habit the agency is going to have to break. NHTSA was pleased as punch during its investigation into Toyota Unintended Acceleration to have the automaker’s science-for-hire consultant Exponent – specifically retained to help Toyota fight lawsuits – provide critical information used to “exonerate” Toyota’s electronics. But, if you are a consumer, a safety advocate or a plaintiff’s lawyer, you’re just chopped liver.

Day after day of bad press, and the prospect of oversight hearings on the Hill can be inspirational. Now comes the hard part. Don’t settle, NHTSA. Get the answers; enforce the law; protect the public you are supposed to serve.  Forget about looking good. Do your job, and you’ll look great.

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