Former NHTSA Administrator Strickland Gets Part 9 Spanking

When David Strickland went directly from representing industry’s interests as the Administrator of the National Highway Traffic Safety Administration to representing industry’s interests as a member of the Washington D.C. lobbying firm Venable, LLC, he was part of a proud agency tradition of lending the dignity of their public offices to private commercial interests.

The list of former NHTSA officials advising manufacturers or testifying on their behalf is long. (See Strickland Takes Express to Lobbytown) The list of those who have been barred by federal rules and a long-established practice is much shorter, but David Strickland got on that list, too, when an agency lawyer barred him from offering expert testimony in Sachs v. Toyota, a consumer economic loss class action lawsuit in a California Superior Court “alleging that Toyota’s design and sale of its keyless ignition system do not contain sufficiently robust safeguards to prevent drivers from forgetting to turn off the engine before exiting the vehicle.”

Toyota retained Strickland, who was officially designated as an expert in mid-May, to testify on the agency’s efforts regarding FMVSS 114 Anti-Theft and Rollaway Standard – the regulatory and enforcement efforts of NHTSA generally, and Toyota’s efforts to ensure compliance, specifically. Toyota is not the only automaker with a keyless ignition design that allows rollaways and does little to mitigate the carbon monoxide hazard. But it is certainly leading the pack in known deaths – six out of 15 – attributed to CO poisoning that occurred when owners of vehicles with keyless ignitions left their vehicles running.

In a scathing decision letter, Tim Goodman, Assistant Chief Counsel for Litigation and Enforcement, dismantles Strickland, limb by limb.

“We find that there is no basis upon which the Agency should grant an exception to its general prohibition on expert witness testimony to allow Mr. Strickland to testify in this matter. The Agency does not find that granting a deviation from the general prohibition would not potentially interfere with matters of operational necessity.  Likewise, it is impossible to maintain the appearance of impartiality of the Agency among private litigants - one of the three objectives specifically identified by the Kaplan Memo as relevant here - when one of those litigants has the former NHTSA Administrator testifying on its behalf."

And, although no such words were used, the decision fairly seethed with “The nerve of this guy!” 

Former NHTSA employees cannot actually raise their right hands and swear to tell the truth, the whole, truth and nothing but the truth about agency actions. For the last two decades, Part 9 of the Code Of Federal Regulations, which outlines the procedures governing the testimony of federal employees in legal proceedings, along with a 1994 memo authored by former NHTSA counsel Stephen H. Kaplan make the parameters pretty clear – one can talk generally about the agency’s policies or specifically about issues in which you weren’t personally involved without seeking the agency’s permission. But opining on matters directly related to your actions while on the job with the agency is a big no-no, unless you can clear a very high bar.

The reasons for this caution are obvious to most. As Part 9 says: the rules intend to “minimize the possibility of involving the Department in controversial issues not related to its mission; maintain the impartiality of the Department among private litigants; avoid spending the time and money of the United States for private purposes; and to protect confidential, sensitive information and the deliberative processes of the Department.

The Kaplan memo was written in the wake of a lawsuit brought by former Administrator Joan Claybrook and public interest lawyers Ben Kelley, who worked for NHTSA in its earliest days, and David Biss, a former NHTSA scientist who managed research programs to support rulemaking. The suit challenged a new beefed up version of Part 9, which brought former NHTSA employees under its authority and essentially precluded any testimony about NHTSA by its former employees. As Biss recalls, the amendments were at the behest of then-Administrator Diane Steed, who wanted to shut down any former NHTSA employees challenging automakers’ preferred prima facie argument that if NHTSA approved something, or closed an investigation with no defect finding, or if a vehicle met the federal safety standard, a vehicle was therefore safe. The plaintiffs sought a declaratory judgment against the sweeping and Draconian amendments, but the case was settled and the plaintiff accepted the Kaplan memo as a clarification. It has been used as a codicil to the regulation ever since.  

The many NHTSA senior employees now working in the auto sector have understood pretty well the rules surrounding and the limits of their expert testimony. (Even, presumably, Ms. Steed, who made a living post-NHTSA supporting industry.) Sadly, not David Strickland.

Employees who want to testify about “information acquired in the course of an employee performing official duties or because of the employee’s official status must seek a waiver from the agency in advance,” Goodman wrote. Strickland thought he’d just wave the Kaplan memo and dispense with the formalities. Instead of seeking authorization, Strickland called to seek assurances from John Donaldson, the agency’s Assistant Chief Counsel for Legislation and General Law, and it was all good until about a month before the trial, when the plaintiffs in Sachs objected to Strickland as an expert witness.

Goodman’s decision shut that one right down: Donaldson does not handle Part 9, the Assistant Chief Counsel for Litigation and Enforcement does; a phone call doesn’t cut it, and by the way, Donaldson doesn’t remember talking to you.

Toyota needed a hurry-up, quick-quick decision, and Goodman gave them one that said: No. No. and No. Strickland has withdrawn from the case. (But not without delivering an expert report, at no doubt, premium prices.) The last Administrator ushered out of the lucrative expert testimony business by Part 9 concerns was Jerry Curry. In 1997, agency lawyers informed Curry, another train-wreck of an administrator, that regulations prohibited him from testifying in Bronco II cases because he shut down the agency’s investigation into Ford Bronco II rollovers. He was quoted in an LA Times story saying he would no longer testify because he didn’t need “the grief.” We imagine that the family and friends of Bronco II rollover fatalities felt the same way.

Strickland argued that during his tenure as NHTSA Administrator he “did not participate in any testing, testing decisions, compliance reviews or any Agency actions regarding the Toyota Smart Key System,” nor was he “briefed on any Agency activities regarding FMVSS compliance actions concerning keyless ignitions.” He knew nothing about the issues raised in Sachs until Toyota came calling. Strickland allowed that he did have “general involvement regarding FMVSS 114, including the issuance of two NPRMs that partially involved FMVSS 114. . . However, Mr. Strickland opined that his anticipated testimony would not implicate his participation in the review process for those NPRMs.”

But Goodman looked at the same facts and came to the opposite conclusion: Strickland was directly involved and personally involved in aspects pertaining to FMVSS 114, from rulemaking to compliance, and that he planned to testify specifically on matters that lay at the heart of Sachs.

"Mr. Strickland does not propose to rely on his general expertise or knowledge acquired during his employment with the Agency. Instead, he intends to utilize specific information obtained through his direct participation in events related to the rulemaking process and policy considerations for FMVSS 114. Mr. Strickland’s June 8, 2015 expert report and deposition testimony make clear that Toyota offers him not as a "former employee who may rely on some general expertise, or knowledge acquired while that individual worked for the Department," as explained in the Kaplan Memo, but for the precise opposite purpose - to provide specific testimony regarding specific rules promulgated during his tenure as Administrator and their specific application to Toyota products. In fact, Mr. Strickland is specifically designated to testify regarding NHTSA’s evaluation of, and Toyota’s interactions with NHTSA regarding, the Toyota Smart Key” System.

As Goodman noted, the combination of Strickland and Toyota is particularly toxic, given the past history:

“As you are well aware, the Agency has been roundly criticized for its relationship with Toyota in terms of recent enforcement actions, particularly regarding unintended acceleration. Given this history, Mr. Strickland’s testimony, as a former NHTSA Administrator, describing Toyota’s actions or conduct in this matter with approval, will likely diminish the Agency’s ability to pursue a vigorous enforcement review of Toyota moving forward.”

That relationship includes:

Allowing two former ODI staffers, Chris Tinto, Toyota’s Vice President of Regulatory and Technical Affairs, and his assistant manager Chris Santucci, to use their institutional experience to minimize the effect of any Office of Defects Investigations’ past probes of Toyota UA. Always remember and never forget the famous May 2009 email Santucci sent to a colleague about his progress in the negotiations with the agency to close a defect petition into UA Lexus events: “I have discussed our rebuttal with them, and they are welcoming of such a letter, They are struggling with sending an IR letter, because they shouldn’t ask us about floormat issues because the petitioner contends that NHTSA did not investigate throttle issues other than floor mat-related. So they should ask us for non-floor mat related reports, right? But they are concerned that if they ask for these other reports, they will have many reports that just cannot be explained, and since they do not think that they can explain them, they don’t really want them. Does that make sense? I think it is good news for Toyota.”

Partnering with Toyota in the 2010 joint NHTSA-NASA Engineering Safety Center investigation of Toyota UA, during which Toyota failed to provide key parts of its software code and Toyota’s science-for-hire firm Exponent provided a warranty analysis used to dismiss physical evidence of a potential root cause for unintended acceleration. Taking Toyota’s word for it that if its diagnostic system failed to detect an electronic anomaly, there could be no vehicle misbehavior.

And the cherry on the sundae: Toyota’s $1.2 billion fine and a guilty criminal plea on one count of wire fraud for all the lies it told NHTSA about the floor mat entrapment and sticky pedal recalls.

All under the David Strickland’s and former DOT Secretary Ray LaHood’s watch. We’re sorry, Toyota, we know that you’ve spread around an awful lot of cash to make important people pretend that there is nothing wrong with your cars. But, Ray’s currently carrying water for the clients of DLA Piper, a vampire-squid of a law firm with 3,500 lawyers across the globe, which mostly contributes to Democrats. And, Strickland? He’s busy reading up on Part 9.

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