NHTSA Denies Toyota Unintended Acceleration Defect Petition

Eight months after a Bristol, RI Toyota Corolla owner petitioned the National Highway Traffic Safety Administration to investigate low-speed surges into Toyota Corollas, the agency has denied the petition, concluding:

In our view, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists or a NHTSA order for the notification and remedy of a safety-related defect as alleged by the petitioner at the conclusion of the requested investigation. Therefore, given a thorough analysis of the potential for finding a safety related defect in the vehicle and in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission and mitigate risk, the petition is respectfully denied.

The Safety Record shares this view. NHTSA’s Office of Defects Investigation (ODI) is unlikely to find a defect. For one, they lack the resources to find an intermittent electronic defect that produced unintended acceleration (UA). Two, ODI does not want to find an electronic defect. After 12 years of investigations – including six petitions filed by consumers (Six! Has any one defect ever prompted that many petitions for investigations? Toyota – another record. Yay, you!), NHTSA has never been able to determine why so many Toyota drivers continue to complain about unintended acceleration. The endless dead-ends and denials have amounted to a deep hole that the agency will never climb out of.

Bob and Kathy Ruginis sought NHTSA’s help after Kathy experienced a UA while parking her 2010 Corolla last June. The vehicle surged forward while her foot was on the brake and crashed into an unoccupied parked Jeep in front of it. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually at higher speeds, since the couple bought the vehicle new in May 2010. Kathy Ruginis, a Catholic school educator, used the Corolla for commuting to her job in Massachusetts. Early in her ownership, she had taken the vehicle twice to the dealership complaining of these surges. The dealership techs drove her car in a circle around a big box store-parking lot and proclaimed that the surges were just the result of downshifting.

Bob Ruginis was not surprised that NHTSA failed to find an electronic source for the malfunction and advance his petition. For one, after the electronics engineer turned the errant Corolla over to NHTSA for testing and asked for the agency’s test protocol, he never received anything from the agency.

“I knew it most likely wouldn’t help me,” he said. “But I hoped it would help some other people.”

 Neither NHTSA, nor Toyota has ever believed a driver’s report about what occurred in a crash. In general, narratives are given no weight if ODI investigators don’t have a pretty good handle on the technical issue already. In addition to Kathy Ruginis’s report, and the affirmation of her passenger in the front seat, she had another witness – the Event Data Recorder (EDR), which showed at the time of the crash that the brake was on, the accelerator was off, but somehow the speed increased and the engine rpms doubled. A Toyota EDR read-out that actually reflects the driver’s and passenger’s account of the crash pretty well is not so common.  

But, for ODI, the EDR is a Rorschach – it means whatever the engineers want it to mean and it always means driver error. However, the agency really had to work to make this reading count against the driver, and for this they turned to the asynchronous nature of the various data points. ODI argued that just because the readout shows the brake on and the accelerator off and the speed increasing at the same time, does not mean that all of those events occurred at the same time. Nonetheless the logic employed to make this a case of pedal misapplication plus late braking is contradictory and tortured.  

 

NHTSA argued that her brake was on at the final data-point read out “proves” that she braked after the crash. However, according to NHTSA, the three data-points showing the accelerator off during the last three of five seconds of the EDR readout shows that Kathy Ruginis rapidly punched the accelerator in the milliseconds between recorded data points. The denial states:

ODI does not believe that the brake switch data recorded by the EDR is consistent with the petitioner's statement that the vehicle accelerated with the brake applied and vehicle testing demonstrated that acceleration would not occur if the brake pedal had been applied with any meaningful force. In addition, although the EDR does not show any increase in accelerator pedal voltage in the final 2.8 seconds prior to impact, this does not mean that the accelerator pedal was not depressed during that time period.

Got that? The brake data is gospel, but the accelerator data is suspect. In short, they called Kathy Ruginis a liar. Chris Caruso, an EDR expert who examined Toyota EDRs as a consultant for the multidistrict litigation economic loss case against Toyota  agreed that NHTSA could not logically or credibly use the data’s asynchronicity to conclude that the driver only engaged the brake after the crash, but that she definitely depressed the accelerator sometime before it.

“We could make the same plausible argument that she was pumping the brakes for the entire five seconds, in between the one-second intervals.” Caruso said.

What is harder to explain, says Caruso, is the absence of a corresponding rise in engine RPMs as the speed of the vehicle doubled in the last two seconds. NHTSA did not address the RPM readings, which showed the RPMs remaining constant at 800 until the last data-point, in which they doubled 1,600. Caruso said that it is impossible for the vehicle speed to increase by 50 percent in 2 seconds leading to the trigger point, while the engine rpms remain at idle. And even if the driver punched the accelerator in-between the 1-second intervals of data collection sometime in the last two seconds, the engine rpms would rise and stay elevated afterwards, because they take time to decrease.

NHTSA’s EDR analysis is “deceiving,” he added.

“She would have to floor it to get that 50 percent increase in throttle. Why don’t the rpms go up?” Caruso said. “If you look at the last two seconds, even if she blipped the accelerator to increase the speed from 3.7 to 5 in one second, the engine rpms cannot recover to idle in that same amount of time. To me, it’s a smoking gun that doesn’t jibe with anything else.”

ODI also pooh-poohed the suggestion that Michael Barr’s analysis of Toyota’s faulty software could provide them some clues of how software could faults could cause UA events not recorded by the engine control module. Barr’s theories were unproven, and applied to a different vehicle with a different electronic system, NHTSA said. Never mind that Barr, a well-known embedded software expert, did something ODI did not – examine Toyota software for the Camry line by line for the plaintiffs in Bookout v. Toyota, a UA case involving a 2007 crash that seriously injured the driver and killed her passenger. Never mind that his detailed explanation of Toyota’s horrible software persuaded an Oklahoma jury in October 2013 to rule against Toyota, awarding the plaintiffs $3 million, before assessing punitive damages and persuaded Toyota hence forth to settle somewhere north of 250 death and injury UA cases since. Just, never mind.

Barr says that shortly after the Ruginis petition became public, he “attempted to contact NHSTA’s Office of Defects Investigation, to ensure they were aware of my relevant work and conclusions.  However, no one from ODI ever reached out to me.”

He also defended the relevance of his work to the task of determining why so many Toyotas run away from their drivers:

"Barr Group's analysis of Toyota’s ETCS-i software was more extensive, both in breadth and in depth, than the software analysis by NASA.  We had access to more software source code than NASA did, and also information about many more vehicle models and model years.  My team of software experts spent over a year pushing the review of Toyota’s engines considerably deeper, he said. “Ultimately, we identified a set of defects in Toyota’s ETCS-i software that NASA specifically worried about in its report but didn’t have sufficient time to find.  We used fault injection testing in a pair of production Toyota vehicles to trigger the defects we found and these tests confirmed that software malfunctions can explain at least some of the reported incidents of sudden acceleration.”

"The evidence supporting my conclusions was documented in full detail in my expert report, which contains more than 500 pages of facts and analysis.  It is my understanding that no one from NHTSA or NASA has ever read this report,” he said. “As I testified in the Bookout trial in Oklahoma in October 2013, the defects in Toyota’s ETCS-i software can be deadly.  As far as I know, these defects have never been remedied by any recall."

ODI did throw the Ruginises a bone. It agreed that: “uncontrolled vehicle accelerations in parking lot environments represent a clear safety hazard to surrounding traffic, pedestrians and even building occupants, as vehicles often accelerate inside of businesses with facing parking spaces where they have caused serious and sometimes fatal injuries.”

But, the good folk at ODI concluded that any possible technical cause would remain a mystery. 

Let’s face it: Jesus, Mary or Joseph McClelland could come to the agency and show ODI investigators unintended acceleration as it happened in real time, and ODI would find a way to dismiss it. In May 2012, two ODI engineers witnessed a 2004 Prius, owned by Joseph McClelland, an electrical engineer and high-ranking government official with the Federal Energy Regulatory Commission, accelerate on its own several times while on a test drive with the owner, without interference from the floor mat, without a stuck accelerator pedal or the driver’s foot on any pedal. They videotaped these incidents and downloaded data from the vehicle during at least one incident when the engine raced uncommanded in the owner’s garage and admonished the owner to preserve his vehicle, untouched, for further research. “They said: Did you see that?” McClelland recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.” Three months later, the agency dumped the investigation. Investigators told McClelland that they weren’t interested because it was an end-of-life issue for the battery and told The New York Times that it wasn’t a safety issue: [NHTSA] also noted that the vehicle “could easily be controlled by the brakes” and “displayed ample warning lights” indicating engine trouble.”

For all intents and purposes, the Ruginis’s Corolla has been parked ever since the crash. Kathleen Ruginis refused to drive the vehicle ever again. Bob Ruginis took it out a few times to be inspected in preparation for selling the Corolla.

“I’ve taken it to a couple of car dealers, and told them about the incident and that this car was investigation and none of them cared. They would all take it from me, and they all gave me pretty much what the car is worth.”

To the Ruginis family, that 2010 Corolla was worthless as a mode of transportation. To NHTSA, the vehicle could have been the start point for an honest examination of electronic malfunction. But NHTSA’s always much more focused on the task of proving everyone and anyone other than themselves wrong. In that way, they are much like Toyota electronics – infallible.

But one day, NHTSA will understand today’s automotive electronics – probably around the time that cars move from self-driving to flying.

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