Toyota is looking to close out its unintended acceleration crisis, with a speedy resolution to the remaining lawsuits out there. According to news reports, the automaker has been inspired by the Bookout verdict to settle a whole passel of UA lawsuits. Last month, for example, Toyota came to terms with Opal Gay Vance, a West Virginia woman who injured her neck and back, when her 2010 Camry suddenly accelerated, striking a trailer. The confidential settlement forestalled a trial set to begin on Jan. 21. In California, orders from judges in the U.S. District Court in Santa Ana and Los Angeles Superior Court opened the door to settlements in nearly 300 death and injury plaintiffs’ cases.
“We’re glad to see that Toyota has decided to approach this in a systematic and forthright way, and we look forward to seeing most of the pending claims settled in early 2014,” says attorney Donald Slavik of Robinson, Calcagnie, Robinson, Shapiro, Davis Inc. of Newport Beach, CA.
The race to empty the court dockets should not be confused with a conclusion to Toyota’s UA technical problems, which continue unabated. SRS took a stroll through the Vehicle Owners Questionnaire database, looking for 2013 UA complaints and found more than 300. They cover all of the classic scenarios, like this one:
"I backed my 2006 Toyota Corolla into a friend's driveway, and then put the car into drive to straighten it a bit. The car suddenly without warning shot across the street (perhaps at 45-50 mph), went over a 6" high cement retaining curbing, and across a lawn into another driveway. All the while I had my foot firmly on the brake (not the gas pedal). I swerved the wheel to avoid hitting a telephone pole, and the house. I finally got the car into neutral, and at last the brakes engaged, and I was able to stop the car avoiding a pick-up truck in the driveway and a tree. During this entire time the engine was loudly revving. Other than 3 shredded tires and 2 ruined rims, the car seems to be intact. I have contacted Toyota and hope for a successful resolution. The service manager at the dealership where this vehicle was purchased, however, said that since it is not under recall there is nothing they can do. Meanwhile I will be fearful every time I get behind the wheel, which I have yet to do! 3 new tires and 2 new rims is a small price to pay - it could have been my life! Had cars been passing by on this normally busy street, or children walking on the sidewalk on their way home from school - other lives as well could have been taken. This was a terrifying event! Judging from all of the similar stories written regarding this make, model and year, Toyota needs to do a recall to solve this problem once and for all." (ODI 10496026)
Not bloody likely.
Bookout Inspires Settlements
Toyota’s found its desire for closure in November when it settled an Unintended Acceleration case, hours after an Oklahoma jury returned a $3 million verdict, but before the trial could move into the punitive damages phase. The case involved a September 2007 crash that seriously injured the driver, Jean Bookout, and killed her passenger, Barbara Schwarz. Bookout was exiting Interstate Highway 69 in Oklahoma in a 2005 Camry when she 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. She could not stop the Camry, which flew across the road at the ramp’s bottom, crashing into an embankment.
One of the key factors in the trial was the testimony of two plaintiff’s experts in software design and the design process, Phillip Koopman and Michael Barr. Koopman reviewed Toyota’s software engineering process, while Barr examined the source code for the 2005 Toyota Camry. (See Koopman trial testimony part 1 and part 2 and Barr's trial testimony and slides.) Both characterized Toyota’s software system as defective and dangerous, riddled with bugs and gaps in its failsafes that led to the root cause of the crash. Among the many deficiencies: possible bit flips, task deaths that would disable the failsafes, memory corruption, single-point failures, inadequate stack overflow and buffer overflow, single-fault containment regions, thousands of global variables. Barr and Koopman called Toyota’s software, “spaghetti code” a term for overly complex, badly structured code. Both said that Toyota did not follow established industry practice in developing automotive software, while breaking its own coding rules. Bottom line, concluded Barr: Toyota’s safety architecture was “a house of cards.”
Slavik characterized the Bookout verdict as “a significant piece of the puzzle that will hopefully lead to a resolution on the pending claims.
"Bookout was helpful,” he says. “We appreciate Toyota’s willingness to address this in a comprehensive fashion.”
The 2013 Complaints
The Toyota UA complaints outside from 2013 look very much like the Toyota UA complaints of the previous years (see SRS reports on Toyota UA from 2010 and 2011.) Out of more than 300 complaints, nearly a third were attributed to the Camry, with 85 – mostly minor -- injuries. There were a preponderance of parking incidents in which the driver is coasting, or actively braking, when the vehicle shoots forward or backward, and assaults a garage door, a pole, a brick wall, a concrete curb; a tree, the my-cruise-control-won’t-disengage scenario and the high-speed UA scenario. Again, the Camry features heavily in these complaints.
Here’s one poor 2005 Camry owner from Clifton, New Jersey who had two parking incidents in November:
November 9th 2013 - as I pulled into a parking space with my foot on the brake, the car took off like a rocket and hit a small tree. When I put the car in reverse, again with my foot on the brake, it shot backward into a parked car. November 25th 2013 - again, pulling into a parking spot with my foot on the brake, the car shot forward, this time, it went right into a brick wall. Approximately 40 bricks rained down on the hood of the vehicle, the front end is smashed in, but this time, I had a passenger that was injured and kept overnight in the hospital. The airbags never deployed. The police that responded were shocked. (ODI 10556199)
Here’s another parking incident, in which the only thing between this 2006 Lexus RH400 occupants from Irvine, CA and a serious or fatal injury was a steel cable:
"As I was pulling into a parking space on the 4th level of a 6 story parking building, I had my foot on the brake pedal and the vehicle was coming to a stop, suddenly the vehicle accelerated (lounged)[sic] forward. There were steel cables (rail guards) that stopped the vehicle from going over and nose diving onto the street below. The front bumper and the hood were damaged. I took the vehicle to the local Lexus dealer and had them check the braking system for any defects. After doing a "health check" on the vehicle the Lexus rep told me that there was nothing wrong with the braking system. I also filled a report with Lexus customer service and they told me, a technical inspector will go to the dealership and check the vehicle out." (ODI 10508299)
Wonder if the tech will find anything?
And the oft-told tale of a damaged garage, courtesy of a Central, New York owner:
"The contact owns a 2012 Toyota Camry. The contact stated that while driving 5 mph into a residential garage, the vehicle suddenly accelerated and crash thru the garage door. A police report was not filed and no injuries were reported. The vehicle was taken to the dealer. The technician was unable to diagnosed the failure. The manufacturer was made aware of the failure who decided to send an engineer to inspect the vehicle. The vehicle was not repaired. The failure and current mileage was 22,000." (ODI 10556213)
Here’s a couple of classic cruise-control-would-not-disengage scenarios. From a 2006 Scion owner in St. Paul, Minnesota:
"I was on the [sic] hiway and using cruise control. When I tried to turn it off, the light went off, but the vehicle continued to hold speed. I tried to engage the cruise control and decelerate/accelerate, but the only effect was accelerating up to 80mph. Stepping on the brakes only slowed the vehicle down and didn't disengage the cruise control. I tried to shift the gears to neutral and still no effect except the engine revving to the red line. So I floored the brakes and could only slow the vehicle down to 20mph. Worried about what else may happen, I exited the [sic] hiway and turned on to a street. Seeing no other options, I chose to just turn the engine off. At that point the power brakes stopped working and the car was still rolling. So I shifted the gear to park and we stopped abruptly." (ODI 10553512)
From a 2013 Lexus RX350 owner from Guntersville, Alabama:
"I was driving on I-59 north with wife as passenger with radar cruise control set at 70 mph approaching departure exit. I tapped the brake pedal to release the cc and it did not release. Thinking I had not tapped it hard enough, I made the turn and tapped the brake pedal harder. The cc did not release. I applied the brakes with full force. The engine raced to satisfy the cc and the speed was 69 mph going into the exit. My focus was steering the vehicle to avoid objects and traffic. We crashed across a four lane concrete curbed boulevard and into a chain-link fence. I steered down a frontage road and brought the vehicle to a stop. This was a 30 second + event. The black box captured 9.5 seconds of information. Lexus downloaded the black box and I requested a copy of the information which they did furnish on a thumb drive. They immediately erased all evidence of the crash from the vehicle data recorder and proclaimed there were no problems with the vehicle. The thumb drive data clearly displays that the car was traveling 69 mph on the data recorder. It also shows that the cc dropped out during the crash. I received a letter from toyota legal in torrance, ca, indicating that their review of the vehicle found nothing wrong with it and the case was closed. The body shop repairs were $16k plus the depreciated value of the vehicle is $11k. Valley Lexus galleria, smyrna, ga, where the vehicle was purchased, defers all communications to toyota. I have been a Toyota customer since 1990 and this has been my third Lexus RX. Bitter sweet end!" (ODI 10502982)
We might point out here that the team of NASA engineers pinpointed the design vulnerabilities plaguing Toyota’s cruise control -- an old system carried over to the new electronic architecture, which lacks a fuel cut-off feature.
(Toyota also settled the Van Alfen case, which featured a UA while the cruise control was engaged. Like Bookout, the case had bad facts for Toyota. In November 5, 2010, Paul Van Alfen was exiting I-80 West in his 2008 Toyota Camry when he tried to take the vehicle out of cruise control mode. According to witnesses, he went around two stopped vehicles at the end of the ramp, and crashed into a rock wall. The surviving occupants, his wife and son said the Van Alfen was pressing the brake firmly and was communicating this action as the crash unfolded. Van Alfen was killed as was his son’s fiancé seated in the left rear.)
And, there’s the already-underway at highway-speed scenario, from a 2005 Lexus ES owner from The Villages, Florida:
"Driving south on Florida turnpike, car suddenly accelerated--unable to steer it or slow it down--had to get off highway to avoid collision --turned wheel to right and slid across swale into thicket of trees. Want to get a used Lexus to replace this but am afraid of safety issues now." (ODI 10542709)
What to Expect in 2014
As neither Toyota nor NHTSA has ever adequately addressed the technical issues, we expect the complaints to continue as before. What’s most disturbing are the numbers of complaints for newer models – 54 Toyota UA complaints involved 2012 and 2013 models. So, Toyota’s UA issues will not go away when the first generation of throttle-by-wire vehicles age out. Koopman and Barr repeatedly made the point that if safety is not part of the software development process at the outset, it cannot be added later. Both concluded that Toyota strayed far and frequently from established industry protocols.
The litigants may get a quick settlement that undervalues the economic and physical harm they’ve suffered, because the value of such cases will likely be based on the overall evidence – and physical evidence is absent in many instances. Toyota has, no doubt, and will, no doubt, continue to leverage this risk to the plaintiff’s disadvantage. At the same time, the automaker can point back to the government reports which, it claims, exonerated Toyota’s electronic throttle control.
And we’ll bet that, like the Audi problems from the 1980s, Toyota UA will be memorialized by the mainstream media – which has hewed tightly to the Toyota narrative – as a crisis composed of bad drivers, misplaced floor mats and sticky accelerator pedals. (Replay Ray LaHood: “The jury is back, the verdict is in, there is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”)
For many more Toyota owners who fortunately didn’t suffer serious injury or death there will be no real resolution. They will continue to foot the bill for Toyota’s problems buried deep within the software, or the accelerator pedal position sensor — and they are going to have to live with it. In fact, the motoring public is going to have to live with these scary safety failures until NHTSA gets off its hindquarters and starts regulating the functional safety of automotive electronics.