“In sum, Michelin’s bad faith conduct caused serious prejudice to the integrity of the legal process and to Plaintiffs’ orderly, effective development and proof of their case,” U.S. District Judge Amy Totenberg, of the Northern District of Georgia, wrote in her 61-page decision. “The pattern of abuse by Michelin is extremely troubling.”

Judge Totenberg’s patience was pushed past its limits in Bates v. Michelin North America, a tread separation case. In November 2009, Johnny and Patricia Bates of Evergreen, Alabama sued Michelin North America for negligence and strict liability in a tire-related rollover crash. On December 25, 2008, Johnny Bates was belted and at the wheel of his 2001 GMC Jimmy travelling northbound on I-85 in Fulton County, Georgia, when the left rear tire, a Uniroyal Laredo suffered a tread separation. The tire failure caused a loss-of-control rollover, leaving Mrs. Bates with injuries. Mr. Bates suffered catastrophic and permanent spinal and brain injuries that have left him a quadriplegic.

The Atlanta firm of Butler, Wooten & Fryhofer LLP, who represented the Bates family, requested that Michelin produce, among other things, warranty adjustment data, design and production tolerances and documents relating to specific defects. But, after a year of wrangling over confidentiality and the scope of the request, Michelin had only produced a “strikingly small” number of documents. On January 3, 2011, the Court ordered Michelin to produce all of the documents the Bates family sought. Michelin petitioned for reconsideration, and, after losing that round, continued to withhold the documents.

In May 2011, the attorneys for the Bates family first asked for sanctions because Michelin failed to produce the warranty data. The tiremaker responded by giving over only a list of conditions identifying — by name only– the causes for warranty adjustments, but not the actual numeric codes.

On June 3, 2011, the judge ordered Michelin to produce those codes and all of the supporting documents, along with a stern warning: “Any further delays, manipulation of discovery … or basically failure to function in good faith in producing fully all information requested or ordered … will result in a substantive sanction …comparable to what Plaintiffs have asked the next time it comes in front of [the Court].”

Judge Totenberg then sanctioned Michelin for its actions and awarded the plaintiffs’ attorneys fees.

But, Michelin’s legal team paid no mind. In a second sanctions motion filed at the end of June, plaintiffs’ counsel again asked for tire adjustment documents for the Uniroyal Laredo series or similar models being withheld by Michelin. And by the end of September, when the judge held another hearing on the issue, other discovery abuses came to light. Plaintiffs’ counsel learned in depositions of two Michelin employees that the tiremaker had withheld other documents that were directly relevant to the defect issue.

At the September hearing, Butler, Wooten & Fryhofer presented evidence that Michelin failed to produce all of the adjustment data on three separate occasions and that the company’s responses to its request for warranty data were intentionally obscure. At first, Michelin produced a chart summarizing by month the number of tires produced and the total number of tires returned for tread belt separation – which was useless without the supporting documentation of the raw data, the codes, and the accompanying documents about how the data is collected, tabulated, and analyzed.

Michelin followed with a second chart, which was similarly useless:

“Despite being previously sanctioned for producing a meaningless list of adjustment conditions without the necessary interpretative documents, Michelin again produced a chart of adjustment data that could not even be interpreted by Michelin’s own in-house expert,” Judge Totenberg wrote. “Mr. Patrick testified that Michelin does not analyze its adjustment data in the format produced to Plaintiffs in this litigation and confirmed that the adjustment data, if presented in a meaningful format, could be used to determine whether (and how many) tires were being returned for conditions resulting from a manufacturing or design issue, whether Michelin was aware of such conditions in the tire, and whether any changes were made to the tire as a result of a high return rate.”

Unlike the recent discovery sanctions order in Stimpson v. Ford, in which Judge William T. Swigert of the Fifth Judicial Circuit in Sumter County, Florida found that Ford Motor Company had implemented a systematic internal and external cover-up of the electronic causes of Unintended Acceleration in some of its vehicles – including lying to the National Highway Traffic Safety Administration and its own in-house expert — Judge’s Totenberg’s order focused on a narrower production issue. Swigert’s and Totenberg’s orders, however, did share a frustration at the defense’s attempts to turn its obfuscation into a virtue.

Michelin pleaded that the omissions were nothing more than human error, but Judge Totenberg was not persuaded.

“First, Michelin made multiple misrepresentations to the Court that it had produced documents as ordered by the Court when it in fact had not. Second, Michelin repeatedly refused to produce documents in direct violation of the Court’s January 3rd, June 3rd and June 24th Orders. Third, Michelin intentionally engaged in an extremely narrow, unjustified interpretation of the Court’s Orders in order to limit, or altogether avoid, producing relevant and useful documents in response to Plaintiffs’ discovery requests.”

Judge Totenberg rejected outright Michelin’s argument that it did not have to produce Michelin’s Failure Modes and Effects Analysis, but did so “in good faith..” These documents, she said, were “very clearly relevant” to the plaintiff’s claims because they “discuss the precise conditions –trapped air, adhesion, molding, how those conditions develop in the manufacturing process, and the methods for detection and prevention of those conditions in a tire before it leaves the plant.”

The judge also noted that this abuse and the uncovering of documents that were key to the plaintiffs’ case would not have come to light but for plaintiffs’ counsel’s persistence:

“According to plaintiff, the subject tire failed to meet the tolerance limits and should have been scrapped.” Without the documents produced only after court intervention, plaintiff would not be able to prove the defect in the subject tire.

The order also specifically addressed Elizabeth C. “Kate” Helm, of Nelson Mullins, Riley & Scarborough, LLP, Michelin’s national discovery counsel, whose consistent forgetfulness on which Michelin representative gave her the incomplete or redacted information drew notice:

“Although the Court originally believed Ms. Helm’s affidavit testimony that the failure to produce the missing adjustment codes was an innocent oversight, and while this may very well be true, the credibility of her statements over time has been eroded by the actual course of discovery events. In light of Ms. Helm’s evasive and inconsistent testimony at the September 19th hearing and Defendant Michelin’s shifting representations made to the Court since June 3, 2011, the Court cannot simply rely on Michelin’s avowals of good faith regarding any of these discovery issues.”

The order left open for trial the question of whether the “defective and unreasonably dangerous” Laredo tire was the cause (or partial cause) of Bates’ car accident. Currently, lawyers for both sides are working through a thicket of motions. No trial date has yet been set.

Mike Michels, Vice President for External Communications of Toyota Motor Sales, U.S.A., wrote an editorial, in response to a well-reported and written story by the Huffington Post’s Sharon Silke Carty about one of the most significant physical findings of the NASA Engineering Safety Center’s (NESC) study of the electronic causes of unintended acceleration in Toyota vehicles: tin whiskers. Tin whiskers are crystalline structures that emanate from tin and other alloys used as solder on printed circuit boards. These nearly microscopic metal hairs can bridge circuits, leading to electrical shorts and significant malfunctions. They have caused failures at nuclear power plants and medical devices and downed satellites. While we don’t believe that they are the cause of UA in all Toyota vehicles. Clearly, tin whiskers have been strongly implicated as a cause of UA in some Toyota vehicles.

This story touched off an interesting and intelligent discussion among readers, generating more than a thousand responses. While there were a few of the “loose nut behind the wheel” and “evil trial lawyers” variety, the majority of comments appeared to come from readers with technical backgrounds who were well-versed in the headaches caused by tin whiskers, a longstanding issue in the electronics industry.

Mr. Michels effort to beat back a challenge to Toyota’s preferred narrative, however, is rife with mischaracterizations and falsehoods.

Mr. Michels says that the engineers at the National Aeronautics and Safety Administration (NASA) have been “clear and unequivocal” in their conclusions. They have not. The February report, Technical Assessment of Toyota Electronic Throttle Control (ETC) Systems and Technical Support to the National Highway Traffic Safety Administration on the Reported Toyota Motor Corporation Unintended Acceleration Investigation, written by the NASA Engineering Safety Center (NESC) actually said:

“Due to system complexity which will be described and the many possible electronic software and hardware systems interactions it is not realistic to prove that the ETCSi cannot cause UAs. Today’s vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore, absence of proof that the ETCSi caused a UA does not vindicate the system.”

Mr. Michels said that there are no real-world scenarios in which Toyota electronics can cause unintended acceleration. That is not true. The NESC team, which found tin whiskers in every potentiometer pedal it examined in a very small sample, studied one from a Camry that had experienced unintended accelerations. The owner described the pedal as “jumpy” and the car as “completely undriveable.”

Further, in May two NHTSA engineers witnessed, videotaped and captured data from a 2003 Prius that had multiple UA events in their presence. Yesterday, the agency conceded that there was no evidence that these UA events were linked to the” known causes” of floor mats, sticking accelerator pedals or driver error. This suggests that the culprit is to be found in the software or electronics.

Mr. Michels says that the National Academies of Sciences laid to rest “this discredited theory,” concluding that all the data available indicated that there was no electronic or software problem in Toyota vehicles and that NHTSA was justified in closing its investigation.

The NAS panel did not actually examine the tin whiskers phenomenon. It devoted one paragraph in a 158-page report to the subject. As for clearing Toyota, the NAS report actually said:

“The absence of evidence is not evidence of absence.”

Mr. Michels also cited the affirming pronouncements of “respected independent experts,” such as Edmunds.com and U.S. Secretary of Transportation Ray LaHood. Edmund’s.com sells cars. Ray LaHood is a politician who taught high school social studies before winning public office. Neither are automotive electronics experts.

Mr. Michels says that Toyota’s systems are designed to reduce the risk that tin whiskers will form in the first place and that “multiple robust failsafe systems” detect faults, illuminate the malfunction indicator light and put the vehicle into ‘limp home’ mode.

Neither is true.

In August, some actual electronics experts from the University of Maryland’s Center for Advanced Life Cycle Engineering (CALCE) published an analysis of the potential for tin whisker growth in Toyota vehicles. The scientists performed a physical analysis of an engine control system from a 2005 Camry XLE, V-6 and an accelerator pedal assembly from a defunct 2002 Camry. The 2005 engine control system included the ECM, an accelerator pedal unit, throttle body, electrical connectors and electrical connecting cables. The tear-down of the accelerator pedal position sensors (APPS) in both Camrys revealed tin whisker formations. In addition, the CALCE researchers found the potential for tin whisker formation in the ECM, which contained surface mount electronic devices connected with tin-lead solder to a multilayer PCB; interconnect terminals of the perimeter leaded devices plated with tin. And tin plating on terminal pins of the edge connections. The CALCE scientists concluded:

“In our analysis, a significant number of tin whiskers were found. Using the calceWhiskerRiskCalculator (CALCE Tin Whisker Risk Calculator, 2005) to assess the failure risk posed by observed tin whisker formation on the conductor pairs, it was determined that the potential for a tin whisker shorting failure was 140/1 million. Considering the number of vehicles on the road, it is expected that this would present a significant safety hazard.”

Other automotive electronics experts, such as David Gilbert at Southern Illinois University have demonstrated that Toyota’s fail-safe strategy is not robust and under certain circumstances fails to detect faults that can lead to open throttle.  In an August 2010 recall intended to correct stalling in 2005-2008 Corolla and Corolla Matrix vehicles, Toyota submitted field technical reports on the problem, many of which noted that diagnostic trouble codes were not set, even when the technician could duplicate the problem. Toyota’s fault-detection system does not always function properly and does fail to detect abnormalities and set trouble codes.

Mr. Michels asks: “Why, then, is Toyota continuing to be subjected to unwarranted speculation in the news media about an issue that has long since been put to bed?”

Well, it’s not due to the fanciful conjecture of plaintiff’s lawyers and its paid consultants or a frenzy of non-news news. It’s because Toyota’s customers continue to report unintended acceleration incidents that cannot be credibly blamed on floor mats, driver error or sticky pedals. NHTSA alone fielded 330 complaints from Toyota owners who experienced a UA event in 2011. Some 247 customers have complained to the agency about events that occurred after they had their floor mats and accelerator pedals remedied through the recalls.

Toyota’s problem is that it has treated unintended acceleration in its vehicles as a public relations dilemma, rather than a technical issue.

If Toyota wants the public to stop discussing Unintended Acceleration in its cars, why don’t they just fix them?

True, the agency response (see second page of report) to reporters’ questions about the Unintended Acceleration events two Office of Defects Investigations engineers witnessed, videoed and captured data from was tortured. The most interesting admission was swaddled in a lot of hot air about how wonderful and competent the agency is at ferreting out problems and protecting consumers, but it was there:

“We sent two investigators to evaluate and inspect a vehicle based on a complaint we received (complaint number 10428551) and did not find any evidence linking the car to known causes of unintended acceleration cases,” [emphasis ours] the agency said in a statement. “NHTSA concluded that the speed of the vehicle could easily be controlled by the brakes. In contrast to other UA complaints, the vehicle displayed ample warning lights for the driver indicating the car had encountered problems.”

To recap: Joseph H. McClelland, an electrical engineer who heads the of the Office of Electric Reliability at the Federal Energy Regulatory Commission, reported to NHTSA in May that his 2003 Prius had experienced multiple UA events. The agency sent out two engineers to investigate. In a sworn statement McClelland described how the engineers witnessed his Pius accelerate five times without floor mat interference, a sticking pedal or a driver error. With great excitement, they videoed it and downloaded real-time data onto their computers, showing that the engine was racing, uncommanded by the driver.

They told McClelland that they might want his vehicle for research, and in the meantime, to park it and secure it. Three months later, they got back in touch: Thanks, but no thanks, they said, your vehicle is too old and worn out. The agency did not put McClelland’s complaint in the Vehicle Owner Questionnaire database until September, at the request of Safety Research & Strategies. We FOIA’ed for the videos and data, but the agency turned us down. Yesterday we sued them in U.S. District Court, alleging that NHTSA has improperly withheld the information.

As the news was reported by SRS, The New York Times, and Rhode Island CBS and FOX affiliate WPRI, NHTSA issued a written response, so as to sidestep troublesome follow-up questions, such as:

If the UA event, witnessed, videoed and captured on computer by NHTSA wasn’t caused by “known causes” why did the engine of McClelland’s Prius “race wildly” with no mechanical interference or command from the driver?

One more, if we may:

Is NHTSA saying that it is acceptable for a vehicle to have an uncommanded acceleration as long as there are some flashing lights and the vehicle is controlled by the brake (or in this case, was able to shift into Neutral)? What about all the drivers too surprised by the complete unpredictability of their Toyota to effectively apply the brake or shift in time? Or the drivers who don’t have enough time and distance to bring the vehicle to a safe stop? What about the instances in which the throttle opening is larger, and control of the brakes much harder than it was in the McClelland vehicle?  If this sort of vehicle behavior is acceptable, what, exactly, is considered unacceptable by this taxpayer-funded, federal, safety agency?

Well, we don’t want to hog the whole imaginary press conference, but we definitely have more questions. Or better yet, release the videos and the data, and we’ll take it from there.

Finally, in its canned response, NHTSA aimed its pea-shooter at SRS, alluding to us as “some groups that are continuing to raise the specter of potential electronic issues around unintended acceleration.” That specter bit is clever – a little “ghost in the machine” echo, eh?

Actually, the group raising the issue are Toyota owners who continue to experience unintended acceleration events that are “not linked to known causes,” i.e., electronics.  The agency fielded 330 complaints for UA events in 2011. These consumers have been turned away by the automaker and the regulatory agency charged with protecting them. When they contact us we will continue to share their stories and study this complex technical issue.

“They said: Did you see that?” the Prius owner recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.”

They videotaped these incidents, excited that, at long last, they had caught a Toyota in the act of unintended acceleration, with a clear electronic cause. The engineers 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.

But three months later, the agency decided that there was no problem at all. The agency thanked the Prius owner for his time and said that it was not interested in studying his vehicle. This critical discovery was never made public. The agency did not even put this consumer complaint into its complaint database, until months later, at the request of Safety Research & Strategies.

Today, for the second time in as many months, SRS sued NHTSA for documents, alleging that NHTSA has improperly withheld material that has vital public interest.

Officially, NHTSA had closed its investigation into Toyota UA three months earlier with the release of its reports Technical Assessment of Toyota Electronic Throttle Control (ETC) Systems and Technical Support to the National Highway Traffic Safety Administration on the Reported Toyota Motor Corporation Unintended Acceleration Investigation. Written by the agency and its contactor, the NASA Engineering Safety Center, these assessments did not foreclose the possibility that UA could have an electronic cause. In fact, the NASA scientists found physical evidence of one electronic cause of UA in some Toyotas: tin whiskers in the accelerator pedal position sensor. But U.S. Department of Transportation Secretary Ray LaHood, who presented the results to the media, was firm in his characterization:

“The jury is back,” he announced. “The verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”

Nonetheless, Prius owner Joseph H. McClelland is not your typical Toyota owner. He is the Federal Energy Regulatory Commission’s Director of the Office of Electric Reliability. A member of the FERC since 2004 and the agency’s first director of the Office of Electric Reliability since 2007, McClelland is an electrical engineer with more than two decades’ experience in the electric utility industry and cyber security.

And ODI’s visit to McClelland’s Chambersburg, PA home was not your typical consumer vehicle examination. Agency engineers were witnesses to and collected real-time data of Toyota Unintended Acceleration. If the agency was not pursuing this incident, Safety Research & Strategies, which has been studying the Toyota Unintended Acceleration issue for more than two years, was interested in gathering the details of NHTSA’s examination of McClelland’s Prius. In late September, SRS submitted a Freedom of Information Act (FOIA) request for all documentation associated with McClelland’s complaint to the agency. The agency turned over six pages, a few hand-written notes and a couple of heavily redacted emails. It refused to release the videos, photographs and computer data ODI generated that day.

“For years now, Toyota has been telling the public that there are no causes of unintended acceleration in their vehicles beyond floor mats, sticky pedals and confused drivers. NHTSA has stood by their side nodding in agreement. The two have repeatedly told consumers that the incidents they have reported – as they have reported them – could not have happened,” Sean Kane, President of Safety Research & Strategies, said.  “Mr. McClelland’s Prius and the NHTSA investigation of his unintended acceleration put the lie to all of that. Unintended Acceleration in Toyota vehicles continues to this day, and the public has a right to know why.  The agency needs to stop hiding evidence and release the videotapes and documents immediately.”

The McClelland Incidents

McClelland bought his 2003 Prius used from Auto Bargains. The vehicle had been rear-ended at about 8,000 miles, but the engine drive train and the hybrid system were still intact. The rear end was repaired and in the course of eight years of commuting the vehicle accumulated about 280,000 miles.  Except for a failure of the exhaust system,  the Prius performed extremely well for many years and over many miles. But in early May, McClelland’s Prius accelerated unintentionally numerous times.

He was on his way to work, not far from his home, when the vehicle suddenly went to “severe acceleration,” he recounted in a sworn statement. McClelland knew about the Toyota UA controversy.

“So, immediately I checked the position of floor mat.  The floor mat wasn’t up against the accelerator pedal.  I put my toe up against the back of the accelerator pedal to see if it was stuck.  It was not stuck; it was fully up.  So it had nothing to do with either the floor mat or the accelerator pedal.  So that led me to believe that the vehicle was accelerating on its own and I needed to get it off the road and try to re-set it by shutting the vehicle off and restarting it,” he said in his statement.

Once safely off the roadway, he shifted the transmission into neutral and shut the engine off. About two miles later, McClellan’s Prius accelerated again, as he gave a little gas to maintain speed:

“The engine started to rev,” he recalled in his sworn statement. “Actually, almost roaring, and the vehicle started to pick up speed, but I was very well aware of the  surroundings, so I was able to pull over again to the left into a shopping center, put it in park, stop it, and reset it, and get the vehicle moving again.”

The Prius continued to accelerate on its own throughout his drive to Washington on his way to testify before the Senate Committee on Energy and Natural Resources, and home again. He immediately contacted NHTSA, and a week later, an agency representative returned his call. He advised McClelland to keep the vehicle parked until the engineers could come out and take a look.

NHTSA ODI Engineers Videotape Unintended Acceleration

On May 17, McClelland and the NHTSA engineers met. The ODI staffers were clear: they had never found a cause for UA in a Toyota other than floor mats, sticking pedals and driver error. McClelland assured them that none of those was the cause of his incidents. The trio went for a test drive to see if the Prius would malfunction in their presence. McClelland drove the vehicle to the site of his first UA experience:

“[The Prius] started to accelerate and speed.  The engine was racing and, you know, we went around the turn and started for the straight away where we could, again, pull off the road and reset the vehicle. They asked at that point if while the vehicle was accelerating, they asked if the floor mat was in place or if the accelerator was stuck, and I lifted my foot up and I said, ‘Check for yourself.’ The engineer “leaned over and saw the floor mat in place and the accelerator was all the way up to a position where it wasn’t depressed and he confirmed, ‘You’re right. This vehicle is doing it on its own.’ ”

McClelland pulled over, shifted the vehicle into neutral and shut the engine down.  The trio repeated the sequence. And the Prius continued to experience unintended accelerations, while the ODI engineers videotaped it. “They generally seemed excited.”  McClelland said in his sworn statement.  “They said that they hadn’t seen a vehicle display this type of behavior before, capturing the information in real-time, and they said this could be an important vehicle for the sudden accelerations and it might help put some of the pieces together.”

Using their laptop, the engineers attempted to pull error codes from the ECM. When they failed to find any, they called in a colleague for an on-the-fly computer consultation. After an hour of configuring, the engineers were able to download data from the ECM. One showed McClelland a particular data field “where the voltage from the accelerator showed zero volts, which means it wasn’t engaged and wasn’t depressed, and yet the computer, on-board computer was calling for the engine to accelerate twice its idling speed and, actually, calling for more than twice.  So two times as much and then more because while it’s running the vehicle, even in parked mode, it went into sudden acceleration on more than one occasion,” McClelland said in his sworn statement.  “So they were pulling that information in real-time, and that was just one data field.  It looked like they had a lot of other data fields that they were capturing and recording and keeping for further analysis, so I could expect software versions and printed copy would be available.”

The trio returned the Prius to McClelland’s garage after the Prius experienced three unintended accelerations. The vehicle had a fourth incident on the way back to McClelland’s home, and then a fifth while parked. McClelland had backed the Prius into his garage, and one engineer remained “in the vehicle with his leg out and the door opened and he was extracting data.  It went into sudden acceleration,” McClelland recalled in his sworn statement.

“The engine started to race, and he asked if he could put it in drive, and I was very concerned at that point. I said if you put in drive, I’m not sure what will happen.  If that car takes off on you, if you put it in drive, it’s going to take that door off and probably sever your leg.  I said you need to set the parking brake and you need to stand on that brake and get your leg inside if you want to put it in drive.  You do that, then I’m okay with you putting it in drive. He did it, and sure enough that vehicle lunged forward and it took off.  He said something to the effect you’re right, had I not done that, that vehicle would have accelerated out the garage.  And I said, yes, and we would be taking you to the hospital to get your leg re-attached at this point, too.”

The Excitement of Discovery Evaporates

The engineers made no promises to McClelland, but told him that the agency might want to buy his vehicle for research. They told McClelland to park the Prius and secure it. They would get back to him. McClelland followed their instructions and waited. Three months went by without a word.

Finally, in August, NHTSA got back in touch. They weren’t interested in buying McClelland’s Prius, after all, he recalled:

“They were not going to purchase the vehicle because they determined that the vehicle was an end-of-life issue.  In other words, it had so many miles on it and it was so worn that it wasn’t pertinent to their interest in the sudden acceleration cases with Toyota,” McClelland said.

“I did ask further, I said what was the cause of the issue with the vehicle, and they said that they thought from the analysis that they did, they thought that one of the hybrid cells had failed in the hybrid battery, and that caused a low voltage condition, and because of the low voltage condition, the on-board computer was asking the car engine to accelerate to compensate for the low voltage – to charge the low voltage cell and that is what was causing the unintended acceleration, they thought. I asked if that could happen at the beginning of life?  It seemed to me like a hybrid cell could fail earlier on, and, you know, could be an issue regardless of the life of the vehicle, and they said, you know, they really hadn’t examined that aspect.”

SRS Files Second Suit Against the Agency

On the heels of the release of the NHTSA-NASA report, DOT Secretary Ray LaHood made the rounds among media outlets, asserting the impossibility of an electronic cause of high-speed Unintended Acceleration in Toyota vehicles. In a February 8, 2011 interview with the PBS News Hour, LaHood also affirmed the integrity of NHTSAs investigative process:

“When we get a complaint, we look at it. We don’t just put it over here and say, we will get to it later. We take every complaint seriously. And, again, we are data-driven. And our people do look carefully at these – these complaints and study them, and make sure that they are taken seriously…” LaHood told newscaster Jeffrey Brown.

The agency’s handling of the McClelland complaint belies that. Here, two ODI engineers had witnessed an unintended acceleration in a Toyota vehicle with no mechanical cause. They videotaped these incidents and captured real-time engine control module data as they occurred. McClelland’s complaint was not added to the agency’s Vehicle Owner Questionnaire database until September, even though he reported it to the agency in early May.

“NHTSA continues to brush aside incidents and data that don’t fit their narrative” Kane said. “We have seen the agency ignore data, deliberately mischaracterize data and hide data.  This is unacceptable behavior for a ‘data-driven’ safety and public health agency.

In December 2011, SRS sued NHTSA over the release of other Toyota UA investigation documents. The civil action, filed in U.S. District Court for the District of Columbia alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida, and requests the court to order their release.

Today’s civil action, also filed in U.S. District Court for the District of Columbia alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding records involving the McClelland incidents.

In addition, a separate review identified 247 unique UA incidents following repairs made to the vehicle in one or more of the Toyota recall remedies.

The 2011 NHTSA complaint data suggest that Toyota has not recalled all of the vehicles in need of a remedy. The post-recall UA incidents, reported to the agency between February 2010 and January 2012, further suggest that the remedies were ineffective.

What is most striking in reading the 2011 complaints is how little anything has changed. The most troubled vehicles – the Camry, the Tacoma and Lexus ES350 – continue to show up in the complaints. The scenarios vehicle owners report are the same:

* Low speed incidents, often described as occurring while parking or repositioning a vehicle, during which vehicles accelerate or surge very quickly while the driver is braking or lightly pressing on the accelerator pedal.

* High speed incidents, often described as occurring on highways, during which vehicle speed increases without increased driver pressure on the accelerator pedal, or highway speed that is maintained after the driver has removed his or her foot from the accelerator pedal.

* Incidents in which vehicles are described as hesitating, surging, or lurching. Consumers reporting this type of incident often indicate that their vehicles are not immediately responsive to pressure on the accelerator pedal; instead there is a delay between operator input and acceleration, followed by higher acceleration than intended, often described as a surge or lurch.

As ever, the vast majority are low-speed/parking incidents, resulting in property damage. However, there continue to be high-speed, long duration events and cruise control-related events. Toyota dutifully inspects these vehicles and tells the owner that the car is “operating as designed.” Dealers continue to follow the floor mat/driver error script.

One thing that appears to have changed: more Toyota owners, now educated about Toyota’s UA problems, have a strategy for dealing with an incident and also take note of the position of their feet. Many drivers specifically report braking at the time of the UA, and shifting the transmission into neutral to bring the vehicle under control. Here are their stories.

[NOTE:  SRS’s systematic review uses a combination of keyword searching and manual review to identify consumer complaints describing UA incidents in Toyota vehicles. We define UA as any uncommanded torque to the wheels of a vehicle or incidents in which drivers report uncommanded engine RPM increase when the vehicle transmission is in the Park position. Our manual review decreases the likelihood of including complaints unrelated to UA. We also acknowledge that this method introduces subjectivity into our characterization of the complaints. We reduce that bias via agreement by multiple readers that a complaint should be included.]

Teresa Young, Pasadena, California

On May 26, Teresa Young, a biologist from Pasadena, Calif., was early for her morning class at the Shan Tung Kung Fu martial arts center in the Roosevelt Place shopping center.  She spotted a space right in front of the studio and turned left. She had her foot on the brake of her 2005 Prius and was cruising slowly toward the low concrete parking stop. She was about to shut down the car, when the engine started to race. Young had her foot on the brake, but the Prius continued to move forward. She pushed the brake harder, but the vehicle engine revved, continuing on its path, over the concrete stop, the sidewalk and through the plate glass window of the martial arts studio. The Prius was in the martial arts studio when Young shifted the vehicle into neutral and tried to turn the engine off.  The Prius did not respond to Young’s repeated attempts to shut it down. At this point, Young’s feet were on the floor pan – not on any pedal, and the Prius continued to move forward, but in the leftward direction of the wheels. The Prius drove right into a wall. In a small panic, Young grabbed her key fob and her purse, and exited via the passenger side door.

“My thought was: ‘I’ve got to get out of this car,’” she recalled.

By this time, her martial arts instructor and security guard were on the scene. The passenger door was still open, the Prius engine was still revving, but stationary, and still in neutral.

“The security guard decided to get everyone out of that side of the building. He feared my vehicle and he had every right to fear that vehicle,” she says.

A tow truck driver attempted to pull the vehicle out of the wall, but after 20 minutes of futile effort, the police handed him the key fob. The tow operator put the vehicle in reverse and backed it out. The vehicle was never examined by Toyota as far as Young knows. It sat, covered at the Pasadena dealership, until she agreed to sell it for research, and replaced it with a Chevy Volt.

Young had been the sole owner of her Prius. She bought it out of environmental concerns and kept it well-maintained. She was aware of the Toyota unintended acceleration controversy, but didn’t pay it much mind. Young did make sure that she took her vehicle in for all of the UA recall remedies. The Prius never gave her a day’s trouble, but about month before her spectacular entrance at Shan Tung Kung Fu, she does recall not being able to shut off her Prius one day. The vehicle did not respond to depressing the ignition button. It took several tries and prolonged push to finally shut the engine down.

“I just thought it was weird,” she says.

Tanya Spotts, Hamilton, Virginia

Tanya Spotts had only owned her 2011 Lexus ES350 for six months, when she experienced an unintended acceleration event on December 26. She was pulling into a second-floor space in parking garage in Reston Town Center, with her foot on the brake. With about three feet to go before coming to a complete stop, her vehicle surged and slammed into the concrete wall in front of her. Spotts, a Realtor, looked down and saw her foot firmly on the brake. In fact, she was braking so hard that she sprained and bruised her foot, requiring treatment.

While her car sustained minor damage, Spotts’ confidence in her Lexus was completely shattered.

“I honestly loved the car,” she says.

Spotts had been a dyed-in-the-wool Toyota fan, who had always owned Toyotas. She spurned her husband’s advice to buy a Jaguar last spring. The Lexus ES350 was her dream car, and while Spotts knew about the unintended acceleration controversy, it did not dissuade her, either.

“I really dismissed it, because the government was involved and they concluded there were no other problems,” she said.

Spotts promptly reported the incident to her insurer and to the dealership, Pohanka Lexus of Chantilly, Virginia. Toyota has scheduled an inspection to read the EDR data. But Spotts does not expect the EDR to reveal anything, since the airbag did not deploy. Nor does she hold out any hope that Lexus will take back the sedan. Her Lexus remains parked and Spotts now finds herself in the dilemma of many Toyota owners before her.

“Thank God, there was nobody in front of my car. My biggest fear is that I carry so many people in my car. If this had happened at my office, there are so many pedestrians. I could not live with myself if I took this car and continued to drive it after an unexplained acceleration,” she says. “I feel like I’m held hostage by this car. I can’t drive it and I can’t sell it.”

Russell Damsky, Cragsmoor, New York

Russ Damsky experienced two unintended acceleration events in his leased 2011 RAV4 within three days of driving the SUV.  Damsky was another Toyota fan who was not put off by the unintended acceleration news stories.

“I thought, obviously this is something they are going to fix so I didn’t give it a second thought when I went in for the 2011 RAV4.”

In January 2011, he leased a new RAV4. Two days later, on January 12, he experienced his first incident. He was in the midst of a right-hand turn into a shopping center, travelling well under 20 mph.

“I thought, ‘That’s funny. I’m stepping on the brakes, but the brakes aren’t working. I put all of my weight and stood on the brake. The car was roaring,” Damsky recalled. “I instinctively put it into neutral and kept my foot on the brake. In a moment, the car went back to idle.”

Damsky immediately called the dealership in Newburgh, New York, and made an appointment the next day to have the RAV4 inspected. On the way to the dealership, about 30 miles away, Damsky experienced a second unintended acceleration. Again, Damsky had his foot on the brake, slowing for a red light, when the SUV’s engine began to accelerate. The former actor employed the same strategy, throwing the vehicle into neutral, and it returned to idle.

Dealership personnel were skeptical, Damsky said. The general manager was “brusque.”

“He went into the rhetoric: ‘This was going to be a problem; that doesn’t happen, the RAV4 has never had that problem.’ I told him: ‘I’ve been driving well over 40 years and it wasn’t driver error. This car has a problem.’”

When Damsky learned that Toyota was sending a tech to inspect the vehicle, he asked the dealership if the technician could wait until he got there. Damsky wound up missing the test drive by a few minutes, but he never had to get in that RAV4 again. During his field test, another vehicle rear-ended it and pushed the SUV into a guardrail. The insurance company totaled the vehicle. Damsky got a different RAV4, which he intends to drive until the lease expires. But, his affection for Toyota is gone:

“I wouldn’t buy another Toyota,” he says. “Not because I didn’t like the car, but because of the way they handled it.”

Don Oxley, DeSoto, Kansas

On January 23, 2011, Don Oxley intended to wash the road salt off of his 2004 Camry. Instead, he added some scrapes to the Camry’s hood, windshield pillar and roof in an unexpected encounter with a rising carwash door. Oxley was stopped in front of the door of the automated car wash, and had punched in the code to initiate the sequence. The light turned green and the door began to open, so he shifted the Camry out of “Park” and into “Drive” to inch forward. As soon as he let off the brake pedal, the Camry suddenly accelerated forward, hitting the car wash door before it could fully open.

“I thought I was going to sail right through the whole car wash,” he recalled. “It freaked me out real bad. I slammed on the brakes with both feet and put it in park and shut it off and it was normal after that.”

Oxley estimates he traveled about 15 to 20 feet before he successfully stopped the Camry.

“I took it into the Toyota dealer, they checked and found nothing, but blamed it on the floor mats. I’m not quite dumb enough to believe the floor mat jumped on the accelerator and stomped it to the floor, but that’s what they want people to think.”

Larraine LeBlonde, Mt. Prospect, Illinois

Larraine LeBlonde was thrilled last October to make the final payment on her 2006 Corolla, when her vehicle began to behave erratically. She has an easy commute from her home in the Chicago suburbs to her job at a retail outlet in an area mall. And her first unintended acceleration event occurred when she was at a stop light at a highway entrance ramp. Her Corolla attempted to surge forward, up an incline. LeBlonde was able to hold it into place with her foot on the brake.

“I thought, ‘Oooh, this is different,’” she recalled.

The surge eventually stopped, the light changed and LeBlonde continued on her way. But that wasn’t the last of it. From mid-October to the first week in December, the Corolla had dozens of similar surges. The scenario was roughly the same: the UA occurred when her foot was already on the brake, at a light or stop sign or while parking. She was able to control the vehicle by firmly pressing the brake – the surges didn’t push the engine beyond 2,500 rpms – and moving the transmission to neutral. A few times, when the engine refused to return to idle, she would turn off the Corolla and re-start it.

LeBlonde’s Corolla was part of the Toyota’s August recall for 1.3 million Corolla and Matrix vehicles to replace the Engine Control Module for an unexpected stalling condition. And although she never had that problem with her Corolla, she tried twice unsuccessfully to bring it into an area dealership for the remedy.

Her surging condition, however, sent her to the Internet in search of information about Unintended Acceleration, and she called Toyota’s customer service line looking for an answer.

“I thought I could call them and be advised about what to do, so I wouldn’t go into a mystery situation,” she said. “I thought that if they had heard about it before, they would be able to name a part. I’m not very car savvy and I didn’t want my car to spend a ton of time at the dealership while they tried one thing after another. The representative was pretty much skeptical. She said that the Toyota mechanic would need the car to replicate the behavior, and I told her that could be quite a while, because it’s unpredictable.”

LeBlonde hung up, dissatisfied. The next morning, she got a call from the local dealership, saying that they had an opening for her to bring her car in.

“They said, ‘We hear that you are having a problem with your brakes,’” she recalled. “I did not take them up on this because it made me feel that they weren’t interested in the actual problem. I lost confidence in Toyota as being able to understand or admit what was really going on.”

LeBlonde was once a loyal Toyota customer. She can remember the day she bought the Corolla:

“I just marched right in on a July 4^th weekend and bought it. Not a second thought. I was constantly convincing friends to buy a Toyota.”

LeBlonde sold the Corolla. She now drives a Honda Civic.

William O’Brien, Cincinnati, Ohio

Bill O’Brien’s 2009 Corolla appears to be a more extreme version of the condition that plagued LeBlonde’s 2006 Corolla.  With a background in science, O’Brien made an Excel spreadsheet of his numerous vehicle unintended accelerations for easy reference. It details the date, time, mileage, weather conditions, road grade, duration and rpms of the event. O’Brien began dealing with engine surges in his 2009 Corolla in March 2010 and has experienced a total of 15 events through January 2012. His 2009 Corolla was recalled for the accelerator pedal shim; and the change from CTS to a Denso component. None of the recall remedies have made a difference in his vehicle’s performance. The incidents typically happen at low-speed, with his foot on the brake, upon cold start. Initially, the engine surged to about 2500 to 3,000 rpms during the UA event. O’Brien would hold firm on the brake, shift the vehicle from drive to neutral and back to drive again, and the engine surge would cease.

“The first time is happened was Easter Sunday, 2010, a month after recall to remove and trim the accelerator pedal,” he said. “The way the recall notice framed it, it occurred in vehicles with high mileages. I had 6,000-7,000 miles on my car. I didn’t think anything was going to come of it. I do know that I didn’t hit the wrong pedal.”

The last several events occurred in November and January in O’Brien’s driveway. These were the most extreme events, with the engine revving to 6,500 rpms.

Toyota and the dealership personnel have examined the vehicle and found nothing, O’Brien says.

“I’ve been through an arbitration and it was evident that it wasn’t going to make a difference. I can produce up to four witnesses to these events. But, none of it matters unless a Toyota technician sees it.  I guess I’ll have to have someone from Toyota riding with me fulltime. Then they would have to move in with us, and God knows how much they eat,” he joked.

The panel’s most significant critique was an acknowledgement that NHTSA is ill-equipped to deal with the new age of vehicle electronics:

“For NHTSA to engage in comprehensive regulatory oversight of manufacturer assurance plans and processes, as occurs in the aviation sector, would represent a fundamental change in the agency’s regulatory approach that would require substantial justification and resources (see Finding 4.6). The introduction of increasingly autonomous vehicles, as envisioned in some concepts of the electronics-intensive automobile, might one day cause the agency to consider taking a more hands-on regulatory approach with elements similar to those found in the aviation sector. At the moment, such a profound change in the way NHTSA regulates automotive safety does not appear to be a near-term prospect.”

Conclusions like these pepper the NAS report. Throughout The Safety Promise and Challenge of Automotive Electronics; Insights from Unintended Acceleration, the panel tries to have it both ways: to lay claim to a scientific process, without employing any actual science, to maintain that it was not second-guessing NHTSA’s investigations, but concluding that the agency was justified in closing them; to say that the Audi Sudden Unintended Acceleration controversy isn’t comparable to the Toyota debate because automotive technology has changed so drastically, and yet lean heavily on the 1989 NHTSA-commissioned report, An Examination of Sudden  Acceleration.

Unfortunately, these equivocations do nothing to enhance our understanding of or to resolve the problem of Toyota unintended acceleration. In fact, these events continue to occur. Toyota drivers, who have not been put off by the NHTSA and Toyota’s steady drumbeat of floor mats and driver error, are still reporting their incidents to the agency’s consumer complaint database. (We will be releasing the 2011 numbers shortly, along with interviews from drivers.)

Consider the deaths of Perlita and Eugene Macala on January 12, in Las Vegas, after their 2002 Toyota Camry “sped through a red light” on an I-215 off-ramp and “slammed into a concrete wall,” according to news accounts. A witness, Jodee Talley, who was behind the Macalas on the freeway said: “They were traveling at just a little bit of a higher rate of speed than me in the beginning – until they started braking. The reverse lights were flashing and then it just darted as if they had floored the vehicle…It was hard to understand how the car went from slowing down to just in a flash slamming against the wall head on at such a high rate of speed,” Talley said. “My first thought [was] that it was somebody just driving erratically, but it just didn’t make sense once they actually collided with the wall.”

Floor mats? A confused driver? The 2002 Camry has been among the most troubled vehicles and is outside of any recall.  Was Mrs. Macala braking, as the witness and the brake lights suggest? The NAS panel appeared unable to understand the concept of unintended acceleration occurring while the driver is braking:

“The NASA investigators further confirmed NHTSA’s conclusion that the ETC could not disable the brakes so as to cause loss of braking capacity, as often reported by drivers experiencing unintended acceleration commencing in a vehicle that had been stopped or moving slowly,” the report states.

There are several reasons why braking could be ineffective in a UA event, ranging from the depletion of the vehicle’s vacuum power-assist braking system during a long-duration high-speed event to insufficient space to bring the vehicle under control before it crashes in a low-speed parking incident. While mechanical and electro-mechanical systems are separate, they are connected by the vehicle’s electronic architecture and they are constantly interacting. The Electronic Control Module, the vehicle’s central computer, is orchestrating many vehicle tasks and the ECM can and does, at times, misinterpret driver commands and sensor signals – including the command to brake. For example, in May 2010, GM recalled 2005-2006 Corvettes with tilt and telescoping steering wheels because the steering wheel angle sensor could become corrupted, causing one side of the vehicle’s brakes to actuate which can put the car into a spin.

The NAS similarly misunderstands the real world of Event Data Recorders (EDRs or “black boxes).  The automotive version of a device well-known in avionics is far from the hardened devices found in today’s aircraft.  Any seasoned crash investigator can recount inconsistent readouts from EDRs, which can only supplement other evidence.  NAS suggests that advanced and mandated EDRs could stand in as the impartial witness to the behavior of the driver and the vehicle in a crash.

The panel gives short shrift to the most significant physical evidence of a root cause of Toyota Unintended Acceleration discovered to date: tin whiskers in the accelerator pedal position sensor. Tin whiskers are a well-known cause of electronic malfunction and surely worth further study in the age of increasing automotive electronics.

There are many other indications throughout the report that NAS got it exactly backwards. For example, the NAS panel did not recommend that NHTSA upgrade Federal Motor Vehicle Safety Standard 124 Accelerator Controls, written in 1972. Rather, it accepted NHTSA’s explanation that the current regulation was sufficiently technology-neutral and its example of a similar regulatory scenario, FMVSS 114:

“Because the FMVSSs are intended to be technology neutral, the changeover from mechanical to electronics systems in recent years has not necessitated substantial regulatory revisions. For example, NHTSA officials informed the committee that the introduction of keyless ignition systems occurred within the context of the existing FMVSS 114. The agency has interpreted the standard’s requirements governing the use of a “key’’ as encompassing both a traditional physical key and codes that are electronically transmitted by a fob or entered by the driver using a keypad inside the vehicle.”

As it happens, for years automakers were forced to seek interpretations from agency counsel on how FMVSS 114 applied to the new systems, because it wasn’t clear. Further, the agency decided to address this confusion in 2006 by upgrading the 114 to encompass electronic keys. Just last month, the agency published a Notice of Proposed Rulemaking proposing to significantly re-write the standard, because keyless ignition systems had introduced new safety hazard – carbon monoxide poisoning – unanticipated by the old regulation based on old technology. (See Stupid Tricks with Smart Keys)

FMVSS 114 provides an excellent illustration of why the agency should upgrade FMVSS 124.

The NAS panel points out “the importance of considering the totality of the evidence in investigations of reports of unsafe vehicle behaviors.” And there’s the problem right there. The cherry-picking of the data began with very first Camry investigation in 2004 and continues today. This phenomenon was captured best by Toyota’s Chris Santucci.

In May 2009, Santucci sent an e-mail to colleague about his progress in the negotiations with the agency to close DP09-001. A Lexus owner who had experienced a high-speed UA event in his Lexus ES350 had requested that the agency specifically investigate events that implicated the vehicle’s electronic throttle control, instead of floor mats, as a root cause.  As characterized by Santucci, NHTSA was looking for the way out:

“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.

No one would say that the controversy has been “good” for Toyota. Yet, the automaker’s ability to use an alphabet soup of government agencies to quash the truth about the problems with its vehicle electronics, to effectively hide from public view what it knows about the causes of those problems, to avoid fixing them or compensating customers who are saddled with them is an impressive achievement.

Researchers at the University of Alabama at Birmingham (UAB) have pinpointed head and neck injuries as the leading mechanism of tornado-involved deaths and they have identified a simple, low-cost solution: helmets. Dr. Russ Fine, founding director of the UAB Injury Control Research Center, says that any helmet designed to protect the head will work — a football helmet, a bicycle helmet, or a construction hard hat — to minimize the damage from high velocity impacts.

“This is as obvious as the nose on one’s face,” Fine said. “It doesn’t require 50 studies and millions of research dollars. This is an effective, practical, sensible intervention that will save lives and reduce injuries.”

Alabama is the nationwide leader in tornado-related deaths. And according to Jefferson County’s Chief Coroner-Medical Examiner Dr. Robert Brissie, at least 11 of the 21 of the fatalities occurring in Jefferson County during the Super Outbreak resulted from head or neck injuries. The UAB research team is recommending the use of any helmet, or head covering made of a hard material and design to protect the head from injury, stored in an easily and readily accessible location in the home, workplace, or vehicle, to be worn in the event of or threat of a tornado. The ideal helmet would be one that covers the greatest portion of the head and face, provides neck support, and stays attached to the head and in the proper position during the high-speed winds. A full-sized motorcycle racing helmet would be best, but the researchers say any helmet structurally designed to protect the head is far better than nothing.

For years, public health official have staked their strategy on early warning systems. The Centers for Disease Control has advised individuals in the midst of a tornado to protect their heads by covering them with their arms and hands.  But Fine says that in the midst of a tornado, individuals will need their hands to hold on to something or to keep children close by. In addition, hands and arms cannot provide adequate head protection.

Fine said that UAB and the Alabama Head Injury Foundation have joined forces to spread the word. They plan to launch a public outreach campaign in March which is coincidentally, Head Injury Awareness Month and the start of the first of Alabama’s two tornado seasons.

“I’m hoping this catches fire nationally,” Fine says. “Nothing would please me more.”

On January 3, 2010, Donna Lynn Hopkins was a front-seat passenger in a 2008 Hyundai Accent, with her husband, Tom, at the wheel. As they approached an intersection on Highway 181 in Bexar County, Texas, another driver failed to yield the right of way. The Hyundai T-boned the other vehicle with sufficient force to deploy the airbags. But only the driver’s airbag inflated. The occupant seat sensor mat in the front passenger seat determined that, Donna Hopkins, a 165-pound woman, was actually a child, and turned off the airbag. Worse, Hyundai’s sensor strategy also turned off the seat belt pretensioner. Like some other manufacturers, Hyundai’s occupant sensor is designed so that the front passenger seat belt pretensioner fires only if the airbag is deployed. Mrs. Hopkins had none of the advanced safety features needed to adequately protect her in that crash, even though she was belted, and weighed 55 pounds more than the regulated cut-off for smart airbag deployment. Her husband, Tom, walked away from the crash; Donna Hopkins died.

Attorney Stephen Van Gaasbeck, who represented the Hopkins family, says that his research revealed many airbag non-deployment complaints for the Accent and its model twins. In fact, in May 2008, then-Senator Elizabeth Dole (R-NC) wrote to NHTSA on behalf of a constituent who complained about his 2006 Kia Rio. Kia is a Hyundai owned company. In his letter to Dole, the Mint Hill, NC owner wrote:

“There is an airbag sensor on the passenger side that is supposed to keep the passenger airbags disabled when only the driver is in the front seat. There is a dashboard light connected to this sensor that illuminates when this airbag is deactivated. However, very often when my wife, who weighs approximately 220 lbs. is seated in the front passenger seat, the passenger airbag sensor light is still on, indicating that the front passenger seat airbags are not activated. This means that should there be an accident with this vehicle when she is riding as a passenger in it, the airbags on her side may not activate. This is a very dangerous situation…The service department at Folger Automotive would tell me that they had never seen or heard of a similar problem. They said on many occasions that the reason the problem was occurring was probably because of the way my wife was ‘sitting in the seat’. They stated to me that they had discussed this situation with KIA technical personnel and that that nobody there had ever heard of a problem like ours. We were made to feel that something we were doing was causing this problem.”

Hyundai occupant sensor system also presents many opportunities for failure, because it does not directly measure weight, rather, it measures the depth of suppression of cells within the mat. Designed by supplier company International Electronic Engineering (IEE), this mechanism can be affected by seat manufacturing differences, moisture, temperature – even body shape.

“The sensor strategy Hyundai uses is so fragile, it’s going to fail somewhere along the line,” Van Gassbeck says. “The degradation can be at any level – even the stitching on the seat cover becoming looser or the fabric becoming looser.”

So-called “smart” airbags came into being in 2000s, when the National Highway Traffic Safety Administration mandated that vehicles include technologies that minimize risk for  children and small adults by either automatically turning off the airbag in the presence of young children or deploying the airbag in a manner much less likely to cause serious or fatal injury to out-of-position occupants. The weight-based cut-off between small-statured adults and children was 110 pounds – the weight of the fifth-percentile female dummy used in the tests.

This rule capped a four-year debate following that recognition that airbags could not only prevent injury, but cause injury and fatality by inflating with too much force. In 1996, the agency opened the discussion by requesting comments about the undesired side effects of the then-current air bag designs. NHTSA pointed to injuries that were occurring during pre‑impact braking as unrestrained occupants moved forward relative to the seat and into close proximity of the deploying air bag. The agency went on to note that certain technological enhancements such as occupant sensing and phased deployment could minimize these side effects.  In 1998, NHTSA issued a notice of proposed rulemaking to require advanced air bag technology. The proposal would have required air bag improvements to protect occupants of different sizes (both belted and unbelted) and require systems that are designed to minimize risks to infants, children, small adults and out-of-position occupants, with air bag deployment suppression strategies or less aggressive deployment strategies. The rule was finalized two years later.

Because of the high potential for misclassification, the supplier must implement a rigorous testing regime to identify sensor performance with a wide range of body shapes – not just weights.  For example, some suppliers will place many occupants of the same weight, but with different body types in the seat to ensure that the sensor is registering the occupant accurately.

Andrew Varga, a former seating engineer who worked on developing sensor systems, says that multiple factors can affect a sensor’s performance. At the unit level, there can be bugs in the analysis algorithms, wide variations in each sensor cell arrayed in the occupant sensing mat and in how the seat is constructed. For example, knit fabric seats have greater compliance than leather seats. The curing of the foam can affect the resilience of the seat, dictating how well the sensors detect occupant weight.

“In the early days, there could be variation as much as 20 to 30 percent,” Varga says. “Improved cells and the use of sensor arrays for better pressure mapping, have reduced errors.”

Once in use, the way people sit in the seats can affect the sensors’ performance. Most mats are designed to measure weight when the occupant is sitting erect in the center of the seat. If, for example, the occupant shifts his weight to accommodate a package on the seat beside him, a lateral shift of two or three inches off-center can place the heaviest load point in a dead-zone, where there are no sensors. Passengers sometimes put their feet on the dashboard, or out of the window. All of these variations can affect sensor performance.

“A good development program with properly executed FMEAs would catch all that.  Still intrinsic variations in those sensors must be taken into consideration” he says.

Nonetheless, this issue of occupant sensor detection reliability is widespread and has led to many manufacturer recalls. For example, in 2002, General Motors recalled some 2000 Chevrolet and GMC C/K models, because the air bag sensing diagnostic module (SDM), contained “an anomaly that could result in the driver and passenger’s air bag failing to deploy during certain frontal collisions.”  In February 2010, Hyundai recalled some 2010 Tucson vehicles, because “properly seated adult right front seat passengers weighing over approximately 240 pounds cause the passive occupant detection system (pods) module program to illuminate the air bag warning lamp.”  In 2011, Kia recalled some 2007-2008 Sorento passenger cars because “the occupant sensor might misclassify an adult and turn off the front passenger air bag.” In 2010, Nissan recalled some 2005 through 2007 Infiniti G35 sedans because the wire harness connecting the belt tension sensor and the occupant detection sensor control unit under the front passenger seat “can experience relative movement which can cause wear and oxidization of the terminals and may cause interruption of the signal,” causing a non-deployment in a crash.

“You know what my car has that is the worst feature I’ve ever had in a car? Is this damn thing where you don’t put the key in!” she fumes about the systems which allow a driver to exit the vehicle with the key fob and the engine running. “And it’s so frustrating! I can’t tell you how many times I’ve gotten back to the car – oh, Geez, I left it running again! You have no way of knowing that the car’s running!”

(Listen to Paula Poundstone on keyless ignition — Poundstone’s comments begin at about the eight-minute mark.)

Timing is everything in comedy, and as it happens, Ms. Poundstone offered her observational bit just a week after NHTSA posted a Notice of Proposed Rulemaking to “fix” the problems introduced by keyless ignition systems: rollaways and carbon monoxide poisonings. Unfortunately, some people who took their key fobs with them, while inadvertently leaving their vehicles running in an attached garage, died from carbon monoxide poisonings. Rollaways have produced their share of injuries and property damage. These incidents are not so funny.

Many people victimized by poor designs blame themselves for their forgetfulness. But we think Ms. Poundstone hit the mark when she called it “the worst feature” she’s ever had in a car. We similarly think that NHTSA solution is a work-around and doesn’t serve the intent of FMVSS 114 or consumers, who have to pay – not to mention risk their safety – for industry’s and regulators’ bad decisions.

Stay tuned. We’ll be submitting our comments to the docket. In the meantime, if you, like Paula Poundstone, have left your keyless ignition car running, but aren’t a regular radio-show panelist, tell NHTSA by submitting a Vehicle Owner Questionnaire.  Or comment directly to the proposal in Docket NHTSA-2011-0174.

(For more on keyless ignition hazards see Stupid Tricks with Smart Keys)

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.