The Toyota Owners Left Holding the Bag

John Biello was not ready for the cruise control malfunction that sent his 2009 Tacoma careening down an exit ramp, then skidding into a rollover last June. But Tuesday, when he and his wife Diane appeared before the Commonwealth of Massachusetts Division of Insurance Board of Appeals to fight an automatic rate increase mandated by state law, Biello was fully prepared to educate the hearing officer about Unintended Acceleration problems in Toyotas.

As the great tide of cash washes from Toyota into the pockets of the U.S. government, attorneys, research institutions and some death and injury victims to settle fines and claims without an admission that the automaker’s electronic throttle control system is defective, owners like John and Diane Biello represent those left to deal with Toyota’s mistakes on their own. The Rehoboth, Massachusetts couple had no counsel, just a compelling account and a binder of public documents showing that Toyota Unintended Acceleration problems continue today and that juries and technical experts recognize what the National Highway Traffic Safety Administration has not: Toyota’s badly designed electronic architecture can cause UA.

“I knew that there had been this unintended acceleration problem. I had read about it a couple of years ago,” John Biello says. “But I thought it pretty much done. I thought the problem was fixed and I didn’t really think my vehicle was involved because I got no Unintended Acceleration recall notices.”

Toyota Lawsuits Wrapped?

Toyota is looking to close out its unintended acceleration crisis, with a speedy resolution to the remaining lawsuits out there. According to news reports, the automaker has been inspired by the Bookout verdict to settle a whole passel of UA lawsuits. Last month, for example, Toyota came to terms with Opal Gay Vance, a West Virginia woman who injured her neck and back, when her 2010 Camry suddenly accelerated, striking a trailer. The confidential settlement forestalled a trial set to begin on Jan. 21. In California, orders from judges in the U.S. District Court in Santa Ana and Los Angeles Superior Court opened the door to settlements in nearly 300 death and injury plaintiffs’ cases.

“We’re glad to see that Toyota has decided to approach this in a systematic and forthright way, and we look forward to seeing most of the pending claims settled in early 2014,” says attorney Donald Slavik of Robinson, Calcagnie, Robinson, Shapiro, Davis Inc. of Newport Beach, CA.

The race to empty the court dockets should not be confused with a conclusion to Toyota’s UA technical problems, which continue unabated. SRS took a stroll through the Vehicle Owners Questionnaire database, looking for 2013 UA complaints and found more than 300. They cover all of the classic scenarios, like this one:

"I backed my 2006 Toyota Corolla into a friend's driveway, and then put the car into drive to straighten it a bit. The car suddenly without warning shot across the street (perhaps at 45-50 mph), went over a 6" high cement retaining curbing, and across a lawn into another driveway. All the while I had my foot firmly on the brake (not the gas pedal). I swerved the wheel to avoid hitting a telephone pole, and the house. I finally got the car into neutral, and at last the brakes engaged, and I was able to stop the car avoiding a pick-up truck in the driveway and a tree. During this entire time the engine was loudly revving. Other than 3 shredded tires and 2 ruined rims, the car seems to be intact. I have contacted Toyota and hope for a successful resolution. The service manager at the dealership where this vehicle was purchased, however, said that since it is not under recall there is nothing they can do. Meanwhile I will be fearful every time I get behind the wheel, which I have yet to do!    3 new tires and 2 new rims is a small price to pay - it could have been my life! Had cars been passing by on this normally busy street, or children walking on the sidewalk on their way home from school - other lives as well could have been taken. This was a terrifying event! Judging from all of the similar stories written regarding this make, model and year, Toyota needs to do a recall to solve this problem once and for all." (ODI 10496026)

Toyota Electronics = Guilty In Bookout

Toyota this morning quickly settled an Unintended Acceleration case, before it could move into the punitive damages phase – hours after an Oklahoma jury has returned a $3 million verdict against the automaker in a 2007 crash that seriously injured the driver and killed her passenger.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

 The jury yesterday awarded $1.5 million in damages to Bookout and another $1.5 million to the Schwarz family and determined that Toyota acted with “reckless disregard.”

This was the first trial in which the plaintiffs, represented by Graham Esdale and Cole Portis of Beasley Allen in Montgomery, Alabama, made Toyota electronic malfunctions the centerpiece of an Unintended Acceleration case. And what may be significant going forward is not the verdict – although Oklahoma juries are not known for being overly sympathetic to plaintiff – but what is entered into the public record about what Toyota knows about the failures of its Electronic Throttle Control System– Intelligent (ETCS-i) and when they knew it. And what facts will fly from the nest of civil jurisprudence and into the public consciousness.

Toyota’s Motion is Extra-Judicialious!

Two judges have turned down Toyota’s request to bar Plaintiffs from speaking to the press about their unintended acceleration cases.

Guadaloupe Alberto of Flint, Michigan died in April 2008, when her 2005 Camry accelerated out of control, left the roadway and struck a tree. Alberto was known as a cautious driver; the 2005 Camry is known as one Toyota’s most problematic UA vehicles. Alberto v. Toyota is now set for trial in February 2014.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries. Bookout v. Toyota is also soon headed for trial in the District Court of Oklahoma County, Oklahoma.

On Sept. 4, Toyota moved for a gag order in Alberto, to stop the family and its attorneys, including West Virginia lawyers Benjamin Baily and Edgar “Hike” Heiskell III, from talking to the press.

“Defendants believe that statements to the media and the release of witness deposition testimony will have a substantial likelihood of materially prejudicing the proceedings and jury selection as prospective jurors should consider only the evidence present at the trial,” the automaker argued.

The Toyota Claimants Are Getting Restless

The $1.63 billion deal in the Toyota Unintended Acceleration economic damages multi-district litigation worked out between the lawyers for Toyota and Hagens Berman, Sobol, Shapiro, and Susman Godfrey the firms representing 22.6 million consumers is headed for a final approval hearing before U.S. District Judge James Selna  on June 14, and really, who could complain?

Toyota gets to continue to claim that its electronics are just fine while funding research blaming drivers for runaway vehicles that it can stash in its back pocket for future unintended acceleration product liability lawsuits. Some Toyota owners – but not those of the most troubled model years will get a brake override system that sorta, kinda may work sometimes under select conditions (hint—don’t put your foot on the brake first).

There’s $250 million for consumers whose vehicles are ineligible for a brake override retrofit. The cash payouts for those folks range from $37.50 to $125. Let’s see. That ought to cover an oil change, a new set of windshield wiper blades, and a Vente Mocha Chip Frappacino at Starbucks to sip while you wait. Done!

Ford Unintended Acceleration Hopping that Class Action Train

It’s Ford’s turn to take a ride down the Unintended Acceleration (UA) class action track. The civil lawsuit, filed in the southern district of West Virginia, with plaintiffs from 14 states, seeks economic damages from any Ford vehicle manufactured between 2002 and 2010 equipped with an electronic throttle control system but not a brake override system. This civil lawsuit seeks economic damages only on behalf of Ford owners and lessors who relied on Ford’s representations of vehicle safety in choosing their products.

As in the recently settled Toyota MDL, the remedy is a brake override system. Hopefully Ford will design one that works in most UA scenarios – unlike Toyota’s version, which does not override the command to accelerate if the brake is already depressed when the UA occurs or at low speeds. (Sorry, all you plate-glass-breaking, drive –through, curb-hopping Toyota parkers who have the misfortune of experiencing a UA event while riding the brakes into a parking spot.)

While Toyota has gotten most of the ink on UA, it is hardly the only automaker grappling with electronic malfunctions in its vehicles. A casual survey of some of pending or recently retired National Highway Traffic Safety Administration investigations and news stories about wild terrifying trips on our nation’s highways shows that Hyundai, Mercedes Benz, Honda, Ford and others have been associated with Unintended Acceleration and Unintended Braking.

Ford, you may recall, was the target in 2011 of Judge William T. Swigert’s ire for lying to the court, the National Highway Traffic Safety Administration, as well as its own expert witnesses on its knowledge of UA. Swigert, Senior Judge of the Florida’s Fifth Judicial Circuit, set aside a jury verdict in favor of Ford in Stimpson v. Ford, because the automaker defrauded the court by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles.

Betsy Spills Toyota’s Beans

To steal a line from Bogie: “Of all the publications in all the websites in all the world, she walks into Corporate Counsel.” She – being Betsy Benjaminson, a freelance translator from Israel who was tasked with translating from Japanese into English documents regarding Toyota Unintended Acceleration. Corporate Counsel -- being the self-described “leading digital destination for in-house counsel to find breaking news and practical information.” And this bit of breaking news? When you lie to the world about an automotive electronics problem that has the potential to result in fatal crashes, don’t expect every underling to keep your secrets.

The story, entitled Is Toyota Telling the Truth About Sudden Acceleration? (Spoiler alert: the answer is: No.) is a fascinating behind-the-scenes look at a company in disarray with a technically challenging problem that its technicians weren’t looking too hard to solve, while its legal and public relations gears clicked into place to drive the denial machine forward. Our favorite:

“Hagiwara and Chris Tinto, a V.P. for technical and regulatory affairs and safety, had been talking about the U.S. investigation and an earlier one in Europe that also involved unintended acceleration (UA).

‘Tinto is extremely pessimistic,’ Hagiwara wrote, ‘and is saying (public hearings, someone will go to jail, I can't completely take care of the pedal problem, etc.).’ Tinto's primary concerns (according to Hagiwara): ‘For NHTSA, we said that our investigations in Europe found that the pedal return is a little slow at a slightly open position, and that there were no accidents, but this is not true. Last year's situation in Europe (many reports of sticking pedals and accidents, and a TI TS9-161 was filed on October 1, 2009) was not reported to NHTSA.’ That failure, Tinto said, ‘may be a violation of the TREAD Act’—the federal law that requires car manufacturers that conduct recalls in foreign countries to report these to U.S. regulators.”

Top Ten Reasons We’ll Miss Ray LaHood

We knew as far back as October 2011 that Ray LaHood was only going to be a one-term Secretary of Department of Transportation. And yesterday, he announced his imminent departure. Ray LaHood is a brilliant politician – all confidence and certainty, a loud combination of consumer-tough-guy-bluster-and-chamber-of-commerce-boosterism. He wasn’t afraid to take public stands no matter how misguided – we’ll give him that.

Admittedly, we are not close observers of the totality of LaHood’s activities. But we have traced LaHood’s fingerprints on technologically-rooted safety problems, and they have been a source of grim amusement. Without further introduction, we give you: SRS’s Top Ten Reasons We’ll Miss Ray LaHood

1. Top Illeist in the Obama Administration

An illeist is someone who refers to him or herself in the third person.

Like Ray telling PBS interviewer Gwen Ifill: “I think that Mr. Toyoda wouldn't be here today if it weren't for Ray LaHood calling him and our people going to Japan and telling them this is serious.” Or, Ray telling NPR talk show host Diane Rehm “Diane, you and I have had discussions about airline safety before on your show and you know that nobody cares as much about safety as Ray LaHood.”

Why does a person talk about himself that way? If you are under three years old, pediatricians considered a linguistic quirk of toddlerhood. If you are over thirty, psychologists consider it a narcissistic personality trait.

Move over, famous illeists, Richard Nixon, Herman Cain, Jimmy in Seinfeld and every professional athlete – and make room on the bench for Mister Ray LaHood. 

2. Outstanding Projectionist

When Ray LaHood is annoyed – hoo-boy, don’t you know it. In February 2011, the National Highway Traffic Safety Administration released two reports purporting to resolve the question of whether electronics could be the source of Toyota Unintended Acceleration complaints. The agency kept a very tight lid on their release, handing them out to select journalists only an hour before the press conference. Both reports were lengthy, dense and highly redacted. But, writers gotta write and deadlines don’t move. Then Ray made the news show rounds complaining that the media hadn’t read the report. We read the reports, and re-read them, and we know, after listening to Ray’s characterization of its contents, that Ray did not read the reports, either.

Maybe in retirement, he’ll get around to it.

3. Undeterred by Facts

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

This pronouncement, more than any Ray LaHood made in his four-year tenure, really fried our butts.

The twin 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, actually said:

“Due to system complexity which will be described and the many possible electronic hardware and software systems interactions, it is not realistic to attempt to ‘prove’ that the ETCS-i 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 ETCS-i has caused a UA does not vindicate the system.”

The latter report, by the NASA Engineering Safety Center showed that there were several scenarios in which engine speed can be increased, RPMs can surge, and the throttle can be opened to various degrees in contradiction to the driver’s command, and not set a Diagnostic Trouble Code (DTC). Among those causes of electronic malfunction in some Toyota vehicles the investigators found were tin whiskers in the Accelerator Pedal Position Sensor (APPS) of potentiometer-type pedals. The NESC and NHTSA teams did not engage independent engineers with expertise in vehicle engine management design, validation and testing to assist them, they allowed Toyota and Exponent to guide this research. To boot, the lauded space agency never examined components from any vehicles that experienced high-speed UA events – the very focus of the lengthy technical tome. 

LaHood’s willingness to elide the facts in favor of a sound-bite that puts the matter to rest hurt every Toyota owner.

 4. Effective Policymaker

Fixated on Floor Mats

Last month, NHTSA kicked a two-year-old investigation into unintended acceleration in Ford Fusion and Mercury Milan vehicles up to an Engineering Analysis. The suspected defect – floor mats that can entrap the accelerator pedal. According to the National Highway Traffic Safety Administration’s Office of Defects Analysis:

“A heel blocker in the floor pan provides a platform that may lift an unsecured mat into contact with the pedal. Ford introduced new pedals as a running change early in model year (MY) 2010 vehicles. Analysis of complaints received by ODI and Ford show elevated rates of pedal entrapment incidents in MY 2008 through early 2010 production vehicles. Incidents typically occur following hard pedal applications to pass slower traffic or when merging into faster traffic. Drivers allege continued high engine power after releasing the accelerator pedal and difficulty braking, including reports that the incident was controlled by shifting to neutral or turning the engine off. Drivers and service technicians reference observing evidence of mat interference or note unsecured Ford or aftermarket all weather floor mats in post-incident inspections.”

This action was followed by a high-profile $17.4 million civil penalty that the agency levied against Toyota for failing to launch a timely recall for floor mat interference involving Lexus RX350 and RX450h vehicles. This was a NHTSA-influenced recall of mysterious origins since the Vehicle Owner’s Questionnaire complaints didn’t seem to support a floor mat interference defect trend (see A Defect Remedy Delayed) – although the Lexus RX has certainly been plagued with all manner of sudden acceleration complaints.

These two events sent us digging through the recall and investigation archives to get a better handle on the greater context. There seems to have been an awful lot of floor mat-related brouhahas in the last few years. It seemed odd that floor mats – which exist solely to provide a barrier between muddy shoes and the carpeted floor pan – should suddenly be so troublesome. In the old days, rubber floor mats were rarely secured with retention clips, as they are now. In one of its responses to the 2010 Ford Fusion Preliminary Evaluation, the automaker reminded NHTSA:

A Defect Remedy Delayed?

Well, we guess that the Christmas bonuses at Toyota are going to be a wee bit smaller this year, since the National Highway Traffic Safety Administration pocketed about 12 hours of profit from the automotive giant for failing to launch a timely recall for flying floor mats in the 2010 Lexus RX 350.

Yesterday, Toyota agreed to settle the government’s claim that it failed to file a Part 573 report to the government within the mandatory five days after discovering a defect requiring a recall for $17.35 million. According to the settlement agreement, Toyota admitted to NHTSA that it knew of 63 alleged incidents of possible floor mat pedal entrapment in Model Year 2010 Lexus RX models since 2009.

That brings the Total Timeliness Simoleans (TTS) Toyota has paid to NHTSA in two years to more than $66 million. Now, Toyota may be setting all kinds of NHTSA civil penalty records, but when one considers that the company reportedly posted a $3.2 billion profit in just the third quarter, one realizes, that by any-pain-in-the-pocketbook standard, this fine ain’t nothing.

In a statement dripping with gravitas, NHTSA Administrator David Strickland said: “Every moment of delay has the potential to lead to deaths or injuries on our nation's highways.”

This fine stems from a NHTSA-influenced floor mat interference recall last summer involving 2010 Lexus RX350 vehicles. In May 2012, the agency’s Office of Defects Investigation asked Toyota to review nine Vehicle Owner Questionnaires that indicated a floor mat entrapment problem for the 2010 RX. Toyota then reviewed its records for “additional reports that could indicate circumstances that may be consistent with potential floor mat entrapment.” On June 22, the automaker presented to ODI cases in which “potential floor mat entrapment was possible or alleged to have occurred in the subject,” including a timeline when each of the reports was received,” according to Toyota. On June 29, Toyota announced its 11th recall related to unintended acceleration, for alleged pedal entrapment by the All-Weather Floor Mat, involving the 2010 Lexus RX350 2010 and RX450 H vehicles.

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