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.

The Case of Tim Scott

On December 2, 2010, Timothy Scott, 47, of Sarasota Florida, was driving at less than 15 mph, before braking to make a turn into his apartment complex, when he noticed that his vehicle was not slowing. Scott applied the brakes with all of his strength, but the engine was “screaming,” as he later described it, the tachometer was approaching “red-line.” Scott was able to slow his vehicle and shift it out of gear.  He attempted to re-start his 2007 Lexus twice, but the engine continued to race. When Mr. Scott exited his vehicle, he immediately checked to be sure the floor mats were still secured by the anchors; he found nothing obstructing the accelerator pedal.

The Lexus dealership initially blamed the floormat, even though the floor mats in Scott’s vehicle had not been recalled and were fully secured.  Toyota then sent a team of engineers to inspect the vehicle, who concluded that dislodged molding from the center console jammed the accelerator, a scenario Mr. Scott adamantly denied could have occurred.  The pedal would have had to have been depressed significantly down and the trim panel dislodged in order for the pedal to catch – which Scott said couldn’t have happened because he inspected his accelerator pedal immediately after he stopped the vehicle and found that nothing was obstructing it.  Further, he was traveling at a low speed (approximately 15 mph) prior to the incident and had only slightly applied the accelerator pedal – not far enough to catch the trim panel -- even if it was dislodged.  Three weeks later, Toyota offered to buy the entire vehicle from Mr. Scott–a rare and unusual offer from the automaker–rather than simply fix a piece of plastic molding.

In February 2011, Toyota announced it was recalling the 2007 Lexus RX as well as other models and model years to replace the driver’s side floor carpet cover and its two retention clips, because an improperly installed forward retention clip in the center console could allow the carpet to obstruct the accelerator pedal.  (The recall included 372,000 2004 through 2006 and early 2007 RX 330, RX 350, and RX 400h vehicles as well as 397,000 2004 through 2006 Highlander and Highlander HV vehicles.)  In 2006, Toyota recalled 2004-2005 and early 2006 Highlanders and 2004 – 2005 Lexus RX 330 and 2006 RX400h for the same problem.

A field team from NHTSA’s Office of Defects Investigation looked into the Scott incident, generating photos, videos and other documents. The investigators never examined the Scott vehicle. It was already repurchased and in Toyota’s possession. Instead, agency investigators examined some other Toyota and Lexus models (the exact number and how and why these examples were chosen is not known).  The buyback and Scott’s account of the incident ought to have raised some eyebrows at NHTSA about whether the trim panel was to blame.  But, in the wake of the recall, the agency declined to press it any further. No formal investigation was launched.

(More on Tim Scott)

Prying the Public Record Loose

SRS, which has been researching Toyota UA since 2009, wanted to see what was so persuasive to NHTSA's Office of Defect Investigation that Toyota’s explanation about trim interference sufficed – even though it didn’t fit the incident scenario as described by Tim Scott. In June 2011, we submitted a FOIA for any inspection records created by the agency, any static and/or dynamic testing the agency might have conducted on any vehicle as a result of the Scott complaint, communications between NHTSA and Toyota and the Lexus dealer, and finally and photographs or videos from its investigation.

NHTSA FOIA lawyers responded two months later, releasing 10 pages of documents that included some emails between ODI officials and Scott, his Vehicle Owner Questionnaire and a document, entitled Emerging Incident Briefing "Buyback RX·350." They withheld a 9-page field report submitted to NHTSA as part of Toyota’s Early Warning Reporting filings, 26 pages of unidentified information, and photographs and videos, because they “contain information related to pre-decisional agency deliberation, opinions or recommendations.”

This is Exemption 5 under FOIA, which is limited to matters that are “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.” Exemption 5 is meant to protect the free exchange of deliberations among staff members in a federal agency. But NHTSA likes to interpret it as broadly as possible, to include any information it gathered in arriving at a decision. We appealed, arguing Exemption 5 did not apply to any and all materials used by a government agency in making a decision and that the photographs and videos are simply visual records of matters of fact.

In December 2011, we filed a FOIA lawsuit in U.S. District Court for the District of Columbia alleging that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding those records. The lawsuit appeared to focus NHTSA’s attention on conducting a more thorough search, and in February, NHTSA notified us that it had located an additional 124 photographs and 18 videos – which we still couldn’t see, because they were withheld under Exemption 5.

Our counsel, David Sobel, and the lawyer for the Department of Justice, which represented the agency in the dispute, began to negotiate, and NHTSA agreed to hand over the 124 photos and 18 videos. The agency swore on a stack of Bibles that there were no written communications between its staff and Toyota, save for one phone call.

NHTSA recently released the photos and videos (see below) to SRS. They appear to show examinations of exemplar vehicles, including a variety of Toyota models ranging from Lexus to Scions.  There is no way of knowing how the order of the 124 photos corresponds to the 18 videos. The audio was redacted, so we were not privy to what the engineers were saying. What we can tell from the partial Vehicle Identification Numbers (VIN) in the photos, is that NHTSA looked at 17 exemplar vehicles as part of its preliminary investigation. Only two – a 2004 and a 2006 Highlander were among the recalled vehicles. The agency looked at one 2010 RX350 –well outside of the recall population. What can one conclude from this? ODI couldn’t find any 2007 RX350s to examine? ODI didn’t get very far in its investigation before the recall was launched? Or, we don’t really need to check, because if Toyota says it, it must be true? And if a driver says it, he doesn’t know what he’s talking about?

2004 Toyota Highlander

Many of the videos show the accelerator pedal moving freely, despite the demonstrator’s attempts to push the pedal closer to the trim, or pull the plastic trim outward toward the pedal. When fully depressed, the accelerator pedal is well clear of the edge of the trim. Amid multiple failed tries to show trim interference, one video appears to show that with enough manipulation the edge of the accelerator may slowly scrape against the center console, making the pedal slow to return to idle.

Even in the “best case scenario,” we once again have the classic misalignment with the facts of the incident as reported by the driver. While it is possible that the pedal interference may occur in some scenarios, it doesn’t explain what happened to Tim Scott whose vehicle was the impetus for the recall.  Scott, a 46-year-old 250-lb man, was holding back his vehicle by depressing the brakes with all his might. His engine was racing. When he tried to re-start his vehicle, it immediately went to wide open throttle – twice.

“As soon as I stopped the vehicle I checked to see if the floor mats were secured. Nothing was obstructing the accelerator pedal,” Scott said recently.

Nothing was obstructing the accelerator pedal.

Pepski Redux

The videos of disembodied hands struggling to make the plastic trim entrap the accelerator pedals call to mind the recollections of Jeffrey Pepski, the last Lexus owner to petition NHTSA in March 2009 to specifically investigate electronic causes of Unintended Acceleration. In February 2009, Pepski, an ES 350 owner from Minnesota, experienced a UA event while driving at high speed, in which the vehicle accelerated to 80 mph. Pepski tried pumping and pulling up the accelerator with his foot – to no avail.  Pepski’s Lexus was equipped with a standard carpet mat, not the all-weather variety said to trap accelerator pedals. His efforts to pull up the pedal would have dislodged the floor mat. In his petition, Pepski criticized the agency for focusing “too narrowly” on floor mat interference. Toyota and NHTSA officials went out to meet Pepski two months later and tried to make the case that Pepski’s carpet mat had entrapped his accelerator pedal  (a mat that has never been recalled or implicated in pedal entrapment), as evidenced by “witness marks” on the carpet. In an email to SRS, Pepski recalled:

“My incident occurred on February 3, 2009. My petition to NHTSA was dated March 13, 2009 and I met with the NHTSA reps (Bill Collins and Stephen McHenry with the DOT) and Toyota rep (Mike Zarnecki, the Field Technical Specialist from the Lexus Central Area Office) on May 1, 2009. Since no chain of evidence existed, the possibility of any observable witness marks as of May 1 would be remote and the level of reliability would be non-existent. All three parties were present when I asked Mike Zarnecki to demonstrate how the floor mats could have possibly caused the accelerator pedal to become entrapped. After much manual manipulation of the floor mat, he was able to show how it may occur. At my request he pulled up and pushed down on the gas pedal; the floor mat immediately became free. I explained that the SUA that I experienced did not cease after I had done the same while driving on February 3. If the floor mat had entrapped the accelerator pedal as all three claimed, the vehicle would have stopped accelerating after dislodging the floor mat. The SUA I experienced continued as the floor mat was not the cause.”

(More on the Pepski petition)

Grassley Questions NHTSA’s Investigation

Meanwhile, Congress isn’t done raising concerns about NHTSA’s Toyota UA investigations. Last week, Republican Sen. Charles Grassley, sent a letter to the agency asking if the agency had focused its UA investigations too narrowly. The last Congressmen to raise those questions were Rep. Henry Waxman, now-retired Rep. Bart Stupak, Rep. Adolphus Towns and Sen. Jay Rockefeller – all Democrats. With the 2010 swing in the U.S. House leadership, from the Democratic to the Republican, the pressure against NHTSA and Toyota in the U.S. House dropped precipitously.

Grassley’s involvement is significant, due to his longstanding reputation of protecting whistleblowers and bringing their concerns into the public eye. He is currently at the center of a widening scandal engulfing the Food and Drug Administration over spying on its own scientists critical of the safety of medical devices under review by the agency. The computer spying was initially focused on five scientists, but eventually grew to encompass any FDA critics, including journalists and members of Congress. Grassley and his office, were among those. On July 13, Grassley sent a letter to the FDA Commissioner, accusing the agency of targeting Congress and of sanctioning the surveillance program from the General Counsel’s office. In the letter, Grassley said that he was referring the case to the Department of Justice for further investigation.

Focused as he has been on the safety of medical devices, Grassley apparently missed the pronouncements from the mount from DOT Secretary Ray LaHood about verdicts being in and most exhaustive investigation ever, blah, blah, blah. Or perhaps he’s confused by contradictory information provided by unnamed whistleblowers cited in his letter.

Specifically, Grassley wanted to know NHTSA’s position and all of the information it had on the tin whiskers phenomenon, microscopic crystalline structures formed on the tin solder used in printed circuit boards that can bridge currents and cause electronic malfunctions. He asked for a reply by July 26.

While Grassley’s looking for answers, maybe he can take a look at these “trim interference” videos and get the one we’re looking for: why did NHTSA believe that trim interference caused the Tim Scott incident?

Watch the videos. The videos we selected are a representative sample of the 18 videos we received.

This first video shows the demonstrator trying to manipulate the plastic trim and the pedal to make the two connect, but does not succeed. The majority of the videos portray this scenario.

The second video shows, after manipulation, a pedal that appears as if it can catch the side of the plastic trim, midway and then returns to its full, upright position.

The third video shows a fully depressed accelerator pedal catching the molded plastic on the side of a center console – this does not appear to be a Lexus RX or Highlander that were included in the recall.

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