The civil action, filed in U.S. District Court for the District of Columbia (Civil Action No. 11-2165), alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding public records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida, and requests the court to order their release.

“One of President Obama’s first acts was to issue an Executive Order on transparency and open government, pledging a commitment to creating ‘an unprecedented level of openness in government,’” says SRS founder and President Sean E. Kane. “The DOT and NHTSA have pledged transparency but have consistently kept vital information from the public.  The agency’s numerous investigations into Toyota Unintended Acceleration have been characterized by continued secrecy, preventing a full accounting of their activities and the complete replication of their analyses by independent parties.  This lawsuit asks the court to compel the release of documents that are relevant to a significant safety recall.”

On December 2, 2010, Timothy Scott, 47, 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, and the tachometer was approaching to “red-line.” Scott was able to slow his vehicle and shift into stop. He attempted to re-start his 2007 Lexus RX 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 sent a team of engineers to inspect the Lexus, who concluded that dislodged molding jammed the accelerator, a scenario Mr. Scott adamantly denied.  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, which SRS had sought as part of its ongoing research into Toyota UA.

SRS has been examining the public record regarding Toyota UA since 2009.  The company has issued numerous, detailed reports, report updates, and analyses related to the unintended acceleration in Toyotas based on public records (see Toyota Sudden Unintended Acceleration). The company has sponsored additional reports on other aspects of Toyota UA from statistical and automotive electronics experts.  These analyses, released to the public, document the troubling inconsistencies in those records and in statements by Toyota, the DOT and NHTSA.  The DOT and NHTSA analyses fail to adequately account for UA claims in non-recalled models and years, and for UA events that cannot be explained by mechanical interference or driver error.

This body of research has been tapped by Congress, independent scientists and engineers, the media and consumers seeking to better understand this crisis, how it unfolded, and its safety implications for Toyota vehicles, NHTSA’s ability to adequately investigate and regulate electronic defects, and future designs of electronic throttle systems.

In contrast, NHTSA has withheld all but a few records related to the Scott investigation, making the extraordinary claim that factual documents, including photographs and videos, were part of the agency’s “deliberative process” and exempt from public disclosure.

SRS argues that the agency’s actions prohibit a full understanding of an important safety recall and its adequacy.  SRS’s lawsuit follows a recent Department of Transportation Inspector General report criticizing NHTSA for its lack of transparency and documentation in its investigations and comes on the heels of disclosure that NHTSA hid months of investigation into Chevy Volt post-crash fires.

“Shielding documents that clearly belong in the public domain only diminishes the DOT and NHTSA’s credibility and leaves consumers wondering who and what they are really protecting” said Sean Kane.

“What do you think about the public in terms of them providing – being provided with more information regarding potential safety defects that automakers tell the department about even before an investigation is opened or a recall is announced?

LaHood replied: “Need for transparency.  The more information we can give the public, the better.”

Unless…..the defect is really bad, and the press will be on it like white on rice and it involves a major automaker, whose fortunes are tightly entwined with the government. Yes, we’re looking at you General Motors. (Or, as some would have it, Government Motors.)

On June 2, a Chevy Volt that had been subjected to an New Car Assessment Program (NCAP) pole impact test three weeks later burst into flames. The fire, apparently caused by intrusion into the lithium ion battery which ruptured the coolant line, consumed the Volt and burned three other vehicles parked nearby in a Wisconsin storage facility. Five months later, investigators ran three more tests on the battery alone to simulate a crash impact. One of the batteries caught fire; another emitted sparks and smoke. On Black Friday, NHTSA opened a low-level defect investigation – Preliminary Evaluation (PE) 11-037 was born.

But where oh where is the documentation? The test report for the toasted Volt? The Information Request Letter to GM and other manufacturers of hybrid electric vehicles?  The subsequent battery test reports? A GM spokesman said that NHTSA worked with the automaker “for months” after the initial fire. Where’s the documentation of that?

Who needs any information? According to NHTSA everything’s just fine! Don’t be afraid to buy a Volt:

“NHTSA continues to believe that electric vehicles have incredible potential to save consumers money at the pump, help protect the environment, create jobs and strengthen national security by reducing our dependence on oil,” the agency assured consumers as it announced the investigation.

Indeed. (Although we’re not sure a burning car actually helps the environment, not to mention those pesky batteries and coal burning power plants that power much of the grid to charge them…)

This nascent investigation is already hitting a few troubling notes.

Things to ponder:

One would expect that this high-profile and technically specific investigation would require an investigator with lots of experience in hybrid electric vehicle systems and design – or at a minimum with an electrical engineering background. Instead, the lead investigator in this sensitive investigation is a mechanical engineer fresh out of college with no apparent electrical engineering background or experience. She joined the agency one month before the Volt ignited.

Why are there no documents in the public file? NHTSA, when it deigns to release key documents at all, likes to wait until the mainstream press has moved on and is unlikely to pursue a follow-up. Really – the ink isn’t even dry on the Office of the Inspector General’s October report rapping NHTSA for its lack of transparency and documentation (see DOT Inspector General Audit Finds NHTSA Defects Office Needs Improvement but Examination Falls Short).  In levying the largest civil fine in the agency’s history against Toyota, the government neglected to provide any documentation explaining how the automaker had violated the recall regulations. In releasing the agency’s technical assessment of Toyota unintended acceleration, the agency withheld the lengthy technical report from reporters until the press conference, leaving them no time to read, let alone digest the report. Then, Mr. Transparency himself, X-Ray LaHood, had the temerity to complain that no one had read the report. It was full of unsupportable redactions. The agency got around to unscrubbing the report months later (see NHTSA Keeps Toyota’s Secrets, Part II).

When did it become acceptable for a federal regulator to give the public a sales pitch during an investigation? We saw the same odd behavior as the agency wrapped up the Toyota investigation. After effectively mischaracterizing the results of the technical review, Secretary LaHood declared:  “I told my daughter that she should buy the Toyota Sienna, which she did. So I think that illustrates that we feel that Toyota vehicles are safe to drive.”

The entity you regulate and investigate is not and cannot be your “regulatory partner.” NHTSA must maintain its objectivity and oversight authority. NHTSA, you are not on Team GM or Team Toyota; you’re the ref, and those guys are workin’ you.

We all know that the American economy needs growth and that green energy is the future, but must we trample safety, scientific objectivity and consumers in the process?

We’ve somehow lost the ability to hold corporations accountable in the name of an allegedly greater good.

Catalano is the daughter of Linda Catalano who died on August 3, 2008.  The 55-year-old mother and grandmother had completed a garage sale and had left her home several blocks away to collect the remaining sale signs along the road.  She evidently stopped the vehicle along the roadway to pick up a sign.  She placed her vehicle into what she must have believed to be Park and opened the door and stepped out of the Chrysler Mini-Van to pick up her signs, with the engine running and the driver’s side door open.  The vehicle then “self-shifted” into reverse, knocking Catalano to the ground and dragging her underneath the left front tire, where it pinned her.

The Catalanos sued Chrysler over this longstanding defect, but the litigation was swept away by the Chrysler bankruptcy and sale to Fiat. Christina and her brother had attended the dinner, with a vague plan for her brother to stand up in the middle of the crowd and demand that Chrysler help the defect victims abandoned in the bankruptcy. But Christina, a 31-year-old UAW steel mill worker noticed that no one was near the stage where Marcchione was giving his speech about the ailing auotmaker’s future prospects. As the CEO concluded his remarks with a commitment to accountability, Catalano walked onto the stage and took the microphone from the event moderator.

“I thought, ‘What a perfect transition. Here he is talking about accountability and here I am ready to tell him how he needed to finally take some,’” she recalled. “I don’t remember exactly what I said. My adrenaline was pumping. I said, ‘You want talk about accountability, but you left hundreds of victims in the dust. My mother was killed by a Chrysler defect.’ He didn’t reply. I said, “If it was your mother who was killed by this, you would be up here, too.”

Security hustled Catalano off the stage and out of the room. News accounts made a brief mention of her appearance, without bothering to find out who she was.

Christine Catalano, as a bankruptcy activist, had been sending Chrysler letters, protesting in front of the headquarters and asking for a meeting.

“He’s ignored us, and we never got a response. But it’s not like he could avoid me last night.”

Catalano said that her mother’s sudden death has been “hard and devastating,” the crash has been all the more galling by its cause – a false park condition that the company has been well aware of for decades.

“I consider it murdering my mother,” she says. “This could have been prevented. When they take accountability, then maybe I’ll stop. Until then, I’m going to keep coming back and coming back.”

More on the GM and Chrysler bankruptcies and the victims they left behind.

On September 2, 2009,  SRS requested GM president and CEO Frederick Henderson change its advertising and marketing materials to reflect that the feature is not standard and alert all dealers and car buyer’s guide organizations of this anomaly on the 2006 through 2008 Impala, 2008 through 2009 Cobalt and any other vehicles that GM has marketed with “standard” side curtain airbags that were offered to fleet buyers without the feature.

SRS also asked NHTSA Acting Administrator Ron Medford to have the agency amend its side-impact crash-test rating information to reflect new information that has come to light regarding deleted “standard” side curtain airbags.

Below are links to the letters:

Letter to GM President and CEO, Frederick Henderson

Letter to NHTSA Acting Deputy Administrator Ron Medford

Chrysler: Date of Bankruptcy Exit: June 10

What’s Out: The new Chrysler has no liability for any vehicles built by the old Chrysler. That means: the liability for all current, pending and future claims of any Chrysler vehicle built before the automaker exited bankruptcy belong to the old company.

Recovery of Unsecured Claims: Projected to be zero (or at most ½ cent/dollar).

General Motors: Date of Bankruptcy Exit: July 10

What’s In: The new GM agreed to assume liability for vehicles built by the old company, if the incident occurs after July 10, when GM exited bankruptcy.

What’s Out: The old GM retains the liability for all current and pending claims. If the incident occurred before July 10th, it is considered a pending claim, even if it has not yet been filed.

Recovery of Unsecured Claims: Unsecured claims in GM are predicted to receive between 10-20 cents on the dollar, several years from now. This is based on projections; there is no guarantee. Cost of administration claims will likely be paid in full for anyone having an accident in the five weeks in between when GM entered and exited bankruptcy, once the old company is liquidated.

Consumers for Auto Reliability and Safety, along with Consumer Action, Center for Auto Safety, Center for Justice & Democracy, and National Consumers League, have petitioned the Federal Trade Commission to require labels informing buyers of a used Chrysler’s unique liabilities. The label they’ve suggested goes like this:

“WARNING    This vehicle was produced prior to the date when the Chrysler bankruptcy was approved. If you buy this vehicle and are injured or killed, even if your injuries were caused by the manufacturer, you or your survivors will not be able to recover your losses by taking action against the manufacturer. If your passengers are injured or killed, even if their injuries were caused by the manufacturer, they and their survivors will not be able to recover their losses by taking action against the manufacturer.”

The California-based advocacy group CARS is asking for the designation under the FTC’s 1985 Used Car Rule, which was promulgated to prevent used car dealers from misrepresenting or failing to mention to buyers important facts about warranty coverage, via a Buyer’s Guide sticker displayed on the vehicle.

The bankruptcy and sale of the once-innovative American carmaker Chrysler to Fiat SPA concluded on June 10^th, with $6.6 billion in federal financing. In just 42 days, the government pushed the major players over the finish line and successfully fended off attempts from investors and victims of Chrysler defects to re-jigger the deal. The owners of the “new” Chrysler are a union retirees’ trust, with 55 percent, Fiat, with a 20-percent share that could grow to 35 percent, and the U.S. and Canadian governments, which hold minority stakes.

In a June 11 New York Times story, an anonymous Treasury official said: “This morning’s closing represents a proud moment in Chrysler’s storied history. The Chrysler-Fiat alliance has now exited the bankruptcy process and is poised to emerge as a competitive, viable automaker.”

“If shirking your due care responsibilities to customers who trusted you is a source of pride, then Chrysler’s chest must be puffed out so far that the buttons are popping off its pinstriped jacket. The bankruptcy has wiped away all current, pending and future claims against vehicles manufactured by the ‘old Chrysler,’ said Safety Research & Strategies president Sean Kane.

General Motors, which completed its bankruptcy nearly a month later, had sought the same freedoms from product liability. But the company was taken aback by the highly publicized efforts of consumer advocates and attorneys representing defects victims to retain their rights to seek compensation via the state tort system. There were news reports about the victims GM was leaving behind and television advertisements opposing GM’s move to shed all liability. Twelve state attorneys general from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Vermont, Illinois, California, Kansas and Ohio objected to the sales, arguing that the bankruptcy court overstepped its legal authority in granting the elimination of successor liability.

GM and the White House’s Auto Task Force, headed by Steven Ratner, who has since stepped down, came to an eleventh-hour agreement, in which GM agreed to accept liability for any future claims against vehicles built under its old ownership. Current and pending claims, however, have been wiped off the table.

In a mere 40 days, GM emerged from bankruptcy with fewer brands, fewer workers and a whole lot of taxpayer cash – $50 billion. (GM is keeping its Chevrolet, Cadillac, Buick and GMC brands and selling or shuttering Hummer, Saturn, Saab and Pontiac.) As of July 10, the majority owners of General Motors are the taxpayers, with a 61 percent stake; and the United Auto Workers health care trust, which owns 17 percent; the Canadian government, which owns 11.7 percent, with the remainder going to bondholders of the old company.

CEO Fritz Henderson told the Associated Press that the revamped automaker will be “faster and more responsive to customers than the old one.”

“Apparently the new GM is doing that by telling the old customers who have been harmed by a GM defect to drop dead,” said Rosemary Shahan of Consumers for Auto Reliability and Safety.

Best feet forward aside, consumer and auto safety advocates are not done demanding that the new companies do something to compensate victims of defects. Indiana Congressman Andre Carson has filed the Jeremy Warriner Consumer Protection Act after Jeremy Warriner, who lost both legs and suffered severe burns in a vehicle fire he alleges was sparked by a faulty brake fluid container on his 2005 Jeep Wrangler. The bill would require the newly-restructured GM and Chrysler to carry liability insurance and force the carmakers to cover claims made against them for any defective products produced by their predecessor company.

A consortium of victims, their attorneys and consumer groups are working on other avenues of redress.

About 3,400 individuals will die or be injured in a General Motors or Chrysler vehicle due to an automotive defect in the companies’ first year post-bankruptcy, according to a new analysis conducted by Safety Research & Strategies

SRS has released its report, Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths as part of its ongoing efforts to highlight the plight of the victims of the Chrysler and GM bankruptcies. Under the terms of each automaker’s transition from their old, debt-burdened incarnations to their liability-free future entities, hundreds of pending death and injury claims will be eliminated. But the latent – and in some cases, well-known, but never resolved – automotive defects will continue to manifest themselves in the 40 million GM and Chrysler vehicles built before Chapter 11, which remain in the U.S. fleet.

Chrysler’s average annual number of death and injury claims in the reporting period is477, resulting with an average of 636 casualties per year (casualties are individual deaths and injuries). For General Motors, the average annual claims rate is 2,171 with an average of 2,779 casualties per year. The average combined casualties per year, for both companies, is 3,415. These claims can be expected to continue at the same pace, resulting in approximately 3,400 new casualties each year during the next couple of years, the report says.

The bankruptcies’ termination of consumers’ rights to redress will likely exacerbate these problems. The National Highway Traffic Safety Administration and automakers rely on death and injury claims to detect defect trends. If these claims are not filed, NHTSA and GM and Chrysler will lose an important surveillance tool .And, while both companies will be responsible for launching recalls and doing repairs, there will be fewer safety recalls for vehicles built by the old GM and Chrysler:

“If neither company is responsible for the past and future claims involving 40 million vehicles, few will file death or injury claims. If death and injury claims data do not reflect the status of real-world problems on the road, safety is compromised. And, if GM and Chrysler no longer bear the liability for uncorrected defects, the automaker has few motivations to fix the pre-bankruptcy problems.”

Following the path set by the Chrysler bankruptcy and sale to Fiat, GM has sought protection from liability claims for deaths and injuries that occur in vehicles manufactured before the bankruptcy. Eight states attorneys general, from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota and Vermont filed an objection with the U.S. Bankruptcy Court in New York on Friday. Illinois, California, Kansas and Ohio have joined the objections.

The states, which will eventually shoulder the financial burdens of permanently injured victims of automotive defects, argue that the bankruptcy court overstepped its legal authority in granting the elimination of successor liability. More to the point, the attorneys general have called out this provision as an evisceration of states’ rights:  “…these offensive provisions, taken as a whole, divest consumers of substantial legal rights, without any regard for state laws that may, when a claim is eventually made, be read to hold otherwise.”

To the average consumer, the new General Motors will be indistinguishable from the old General Motors with a critical exception:

“To allow Newco to purchase substantially all of the Debtors’ assets, continue in the manufacture and sale of GM vehicles, enjoy the good will that comes along with the purchase of the GM name and brand, and still avoid any claims brought against it on the theory of successor liability contrary to state law is an unconscionable and wholly insupportable result that will harm innocent consumers.”

So far, in a Detroit News story, the automakers pulled the linings out of their corporate pockets and shrugged. Chrysler said that it was “saddened” that consumers had been injured in their vehicles and GM says that it feels consumers’ pain. Neither seemed inclined to stand behind their products or contemplate the challenges on some future sales floor when enough consumers figure out the raw deal that awaits.

Other states are expected to formally join the objection.

Joinder and Limited Objection of the States of Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota and Vermont 06/19/09

The States of Illinois, California and Kansas join the Joinder and Limited Objection of the States of Connecticut, et al. 06/19/09

The money quote:

“We have heightened concerns about GM abandoning its legal obligation to customers that have been injured or killed by one of its defective products. The New GM has a continued responsibility to recall and repair vehicles manufactured by old GM. New GM’s request for liability protection creates an unjust and illogical dichotomy in which the company is responsible for removing and repairing a vehicle defect, but would not be responsible for the injuries and deaths caused by that very same defect. The rights and responsibilities GM owes to its customers do not end with an arbitrary date. We insist that you fulfill its obligations to injured customers and their families. We request that you consent to assuming the obligations of the Old GM.”

The letters went out Tuesday, with the responses due back to the committee by Friday.

Bipartisan Senate Commerce Committee Letter Requesting Chrysler Fulfill Legal Obligations to Injured Customers 06/09/09

Bipartisan Senate Commerce Committee Letter Requesting GM Fulfill Legal Obligations to Injured Customers 06/09/09