Category: litigation

UK Tire Age Bills Moves Forward

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While the National Highway Traffic Safety Administration has put aside tire age regulations, Great Britain is inching forward with a bill to ban tires older than 10 years on commercial buses and coaches.

The legislation is the result of a campaign by Frances Molloy, whose 18-year-old son Michael died on July 16, 2012 along with another 23-year-old passenger and the driver in a bus crash caused by the catastrophic failure of a 19-and-a-half-year-old tire. The tire, with legal tread-depth, had been purchased secondhand by Merseypride Travel, which owned the 52-seat coach. In December 2013, after a public inquiry by the North West Traffic Commissioner, Merseypride lost its license to operate public vehicles.

The bill, sponsored by Walton MP Steve Rotheram, requires that Public Service Vehicle operator’s license be granted on the condition that the tires on the vehicle be no more than ten years old. It is an amendment to an existing The House of Commons had ordered the Tyres (Buses and Coaches) Bill 2015 to be printed in July, after its first reading, and later this month, the bill is scheduled for a second reading in the House of Commons. (These are very preliminary stages in the British legislative process. The second reading allows members of Parliament to generally debate its merits. The bill gets closer scrutiny in the next, committee stage, in which experts and interest groups can testify. If the bill survives the committee stage, it returns to the chamber for a debate.)

Molloy has been lobbying for a tire age law since 2012, drumming up political and industry support. In 2012, Molloy and accident re-constructionist David Price met with Secretary of State Patrick McLoughlin, who reports directly to the Prime Minister, to solicit his support. While McLoughlin declined to support a tire age bill, in December 2013, the Department of Transport issued guidance for firms registered with the Vehicle and Operator Services Agency: “As a precaution, the Department for Transport strongly recommends that tyres over 10 years old should not be fitted to the front axles of buses and coaches.”

In October, Molloy, chief executive of Health@Work and chair of Liverpool Community Health NHS Trust, spoke at Brityrex International’s TyreTalk seminars. Molloy also won the backing of the Chief Fire Officers Association – fire departments respond to road crashes – and The National Tyre Distributors Association, which represents new tire retailers.

Molloy says that the NTDA acknowledged that tire age was a conversation that the organization’s members didn’t want to have, but had to have. She made her position clear:

She was willing to listen to the science of tire aging in order to develop the most appropriate policy: “But [the solution] cannot be anything but legislation,” she said. “It has to be something in law, that if you don’t follow it there will be consequences. I’m not negotiating on that.”

In advance of the second reading, Molloy will be featured in a BBC documentary called Inside the Commons. The February 17 episode will show Rotheram’s work with Molloy on tire aging, and she hopes it will win the proposal more advocates in that chamber.  But, if the timing of the documentary episode is good, the timing of the second reading is not. It will be the last of three bills to be heard on a Friday afternoon. Molloy and her bill have to keep at least 100 MPs around long enough to support it, before it can advance to the Committee stage. If it fails to garner enough support, any further legislative action will have to wait until after the general elections in May.

“The second reading is very important, there’s a lot of challenges,” Molloy says. “But I will not give up. I will keep going and I will wear them down before they wear me down.”

Unfortunate Chapter Continues: Toyota Bounced for $11 Million in UA Case

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Toyota’s runaway success in blaming drivers for its defective vehicles, hit an $11 million pothole yesterday, after a Minnesota federal jury found that the automaker was 60 percent responsible for an Unintended Acceleration (UA) crash that killed three and severely injured two.

Attorney Robert C. Hilliard, who represented plaintiffs Koua Fong Lee, the driver, and the family in the vehicle that was struck, says it’s the first jury verdict against Toyota in a UA case involving a mechanical defect. The automaker made no offer to settle the case prior to the January trial.

On June 10, 2006, Lee was exiting a Minnesota Highway 94 in a 1996 Camry when his accelerator became stuck in the wide open position. Lee was driving his pregnant wife and children home from services when, at 75 miles per hour, he plowed into the rear of an Oldsmobile Ciera that was stopped at an intersection. Fong alleged that he pushed on the brakes, but they failed to stop the Camry. Driver Javis Trice-Adams Sr., and his 9-year-old son were killed, his father, Quincy Adams and Trice-Adams’ daughter Jassmine Adams were injured. Trice-Adams’ niece Devyn Bolton, 6, was paralyzed and died in October 2007. 

Lee was convicted of vehicular manslaughter in 2008, and served two-and-a-half years of an eight-year sentence. Then, in 2009, the Toyota Unintended Acceleration crisis began to build doubts about the certainty of driver error in the crash. In August 2010, Ramsey County Judge Joanne Smith ordered a new trial. The prosecutor dropped the charges and declined to retry the case. Lee was released from prison.

Hilliard argued that Lee and the Adams family were victims of a design defect in which the plastic pulleys in the cruise control assembly overheat and bind the accelerator cable in the open position. Each time the accelerator was tapped, the throttle would open wider. Lee testified that he tried to bring the car to a stop, but the brakes could not overcome the open throttle. In previous testing the National Highway Traffic Safety Administration showed that vacuum brakes lose their effectiveness if pumped continually. Toyota argued that Lee mistakenly floored the accelerator for six seconds before the crash.

Hilliard attacked that notion in his closing arguments, with an exemplar pedal and a timer.

“Their theory was that Koua Fong Lee, without any panic situation, for some unexplained reason, after driving normally for 30 minutes, suddenly floored it for six full seconds as he is approaching a stop light with a bunch of cars in front of him,” Hilliard said. “I told the jury, for you to believe this, you have to believe that at the top of that hill — I floored it and pushed timer. Six seconds seems like an eternity.”

Toyota had attempted to counter Hilliard’s defect theory with the testimony of a Toyota engineer in Japan who claimed that the company’s “robust protocols” included days-long heat testing at 280 degrees. Then shortly before trial, Toyota filed a declaration from that engineer stating that the company actually did no such testing.

“It was the most amazing declaration I’ve ever seen,” Hilliard recalled, “where he was so proud of that test that it turns out they never did.”

Hilliard also bolstered his case with testimony from other who experienced a UA event, such as a doctor and a Black Hawk military helicopter pilot, who was flown in from Kuwait to testify.

The $10.94 million verdict was divided among the crash victims. Lee’s award was reduced by 40 percent for contributory negligence, but Hilliard says that he will file a post-verdict motion to challenge it — if Toyota’s defective design was the direct cause of the crash, then Lee should receive his full share. 

Meanwhile, Toyota has settled more than 250 injury and death claims under its Intensive Settlement Program in the multi-district litigation involving UA in Toyota vehicles equipped with electronic throttle controls, says West Virginia attorney Hike Heiskell, who represents several plaintiffs with UA claims. 

“They have settled a very high percentage of pending cases. One of the interesting things is how many new incidents are being reported after Toyota entered into the deferred prosecution agreement,” he says of Toyota’s March agreement to plead guilty to one charge of wire fraud and pay a $1.2 billion fine.  

While he sees no applicability of the Lee verdict to cases involving electronic throttles,“still — it’s a system that took control of throttle and produced tragic consequences,” Heiskell says. “It pierces the Toyota defense that this doesn’t happen in the real world. Bookout was a great breakthrough, and this case is a great breakthrough, in letting the public see that it does happen in the real world.”

Texas Attorney Asks NHTSA for Tire Investigation

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National Highway Traffic Safety Administration Chief Counsel O. Kevin Vincent’s message to the defense bar a few months ago at a legal conference was pretty clear – keep us in the loop, or risk the consequences. NHTSA’s message to the plaintiffs’ bar has been more like radio silence, so it will be interesting to see what the Recall Management Division does with a request to investigate the failure of a tire distributor to recall a defective Chinese tire already recalled by a different distributor, marketing the same tire under a different brand name. 

Michael Cowen, of the Cowen Law Group in Brownsville, Texas wrote to the agency today asking for an Equipment Query regarding Hercules A/T radial tires sold by the Hercules Rubber & Tire Company.

Cowen represents Krystal Cantu, 25, who lost half of her right arm in an August 2, 2013 crash caused by a catastrophic tread separation. Cantu was a front-seat, belted passenger in a 2004 Ford Explorer Sport Trac, when the left-rear tire – a Capitol Precision Trac II – failed as the vehicle traveled southbound on Interstate 37 in Atascosa County, Texas. The driver lost control when the vehicle skidded; Ms. Cantu’s right arm was crushed in the subsequent rollover.

ITG Voma cited this crash in its October Part 573 Notice of Defect and Noncompliance to recall 94,890 Capitol Precision Trac II tires manufactured between December 2008 and May 2010. The defective tires, actually manufactured by Shandong Yongsheng Rubber Co., Ltd., lacked a nylon cap ply, which made the tires less robust and prone to tread separations.

“Selling essentially the same tire and under a different brand that isn’t covered under the recall needs to be thoroughly investigated by NHTSA.  Our request and the information submitted to the agency should assist them in obtaining a complete accounting of all the tires that need to be taken off the roads” Cowen said in a press release. 

On April 2, 2014, Cantu filed a lawsuit against Voma and the Shandong Yongsheng Rubber Co., Ltd., among other defendants. During the discovery phase of the case, a manufacturer’s representative revealed that the Capitol Precision Trac II shared a common green tire designation with another tire branded as the Hercules Radial A/T in eight different sizes. NHTSA defines a common green tire as “tires that are produced to the same internal specifications but that have, or may have, different external characteristics and may be sold under different tire line names.”  This means that the Hercules A/T and Capitol tires are essentially the same.

Under federal recall regulations, the company that brands the tire is considered the manufacturer, and is responsible for reporting defects to NHTSA and launching a recall. In a December 17 letter, Cowen asked the agency to open a defect investigation called an Equipment Query to pursue the Hercules Rubber & Tire Company, a marketer of replacement tires, headquartered in Findlay, Ohio and a partner of the Cooper Rubber & Tire Company, to launch a recall.

In 2007, Foreign Tire Sales (FTS), a tire importer based Union, New Jersey launched a recall after discovering that tires manufactured by the Hangzhou Zhongce Rubber Co. Ltd for FTS had been built without or with inadequate .6mm c-shaped gum strips used to prevent the separation of belts. The recall followed a legal claim alleging that a catastrophic tread separation of a Telluride 245175R16 tire manufactured by Hangzhou and sold by FTS caused a fatal rollover crash. FTS had claimed to NHTSA that Hangzhou sold similar tires via other importers. The agency’s Recall Management Division responded by sending letters to 17 tire importers/distributors of Hangzhou tires.

The EQ was eventually closed with no further action – all 17 distributors claimed that they had none of the defective tires.

“This underscores the important role litigation plays in identifying safety defects” says SRS President Sean Kane. “It will be interesting to see how many of these defective tires actually come out of service in this campaign given the failed recall system.”

The weaknesses of the current tire recall system were among the topics discussed at length last week at a tire safety symposium hosted by the National Transportation Safety Board. The NTSB held the meeting in advance of a tire safety report and formal recommendations, expected to be issued next year.

Trinity Defenses Collapsing Faster Than an ET-Plus End Terminal

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A jury in Marshall County, Texas found that Trinity Industries, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Federal Highway Administration and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million.

The FHWA did not participate in the lawsuit, nor was it present in the courtroom.

Joshua Harman, the president of SPIG, sued Trinity under provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman claims that sometime between 2002 and 2005, Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle.  Harman has claimed that Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between the two companies brought this modification to light.

According to SRS staff who attended the trial, there were two keys to the plaintiffs’ success – a November 9, 2004 email and the testimony of Trinity President Gregg Mitchell.

The decade-old email, authored by a retired Trinity vice-president, Steven Brown, proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I’m feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999.

Trinity President Gregg Mitchell took the stand and made the company look like incredibly sloppy engineers who deliberately concealed the changes to the government. Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus. In fact, the company did no evaluations of the product.

A typical exchange between Mitchell and one of Harman’s lawyers, George Carpinello, went like this:

Carpinello: What studies did you consult, sir, or did TTI consult to your knowledge to determine that a change from 5- to 4-inch would improve the alignment of the extruder head, and, therefore, enhance the extrusion — extrusion during a head-on impact?

Mitchell:  I’m not aware of any studies.

Carpinello:  What field studies were done, sir?

Mitchell:  I’m not aware of any field studies.

Carpinello: What computer analysis was done, sir?

Mitchell:  I’m not aware of any computer analysis.

Carpinello: Was anyone consulted other than TTI and Trinity?

Mitchelll: Not that I’m aware of.

Carpinello: Did you go to any contractors and ask them, sir, whether they saw anything in the field that indicated that Trinity should change from a 5- to 4-inch to enhance the rail

extrusion during head-on impacts, sir?

Mitchell: I’m not aware of field studies that were done. No.

Carpinello: Did you consult any public officials, any DOT officials, state police, or outside experts to ask if there was a problem with regard to the extrusion during head-on impacts so that we should change it from 5- to 4-inch?

Mitchell: I’m not aware of any.

Click here to read the full trial transcripts.

The plaintiffs’ bar will be feasting on these admissions for some time.

Trinity executives also never re-ran the most critical test used for certification with the FHWA – a head-on collision with a pick-up truck at highway speed. Instead, Trinity ran a test with a small car to see if a different design change – raising the height of the posts to 31-inches would cause a small vehicle to underride the rail. It did not submit to the FHWA videos of tests with the newly designed four-inch end terminal that showed it failing spectacularly, because, the company argued, it was used in a different type of installation. Trinity’s Vice President of International Sales Brian Smith testified that those crash test videos represented a research project that was ultimately not put into production, and never submitted to the FHWA. Also several Trinity executives and TTI engineers testified that the real reason for the change to the channel width was to mitigate a wobble in the guardrail beam inside the guide channel. Neither could produce any evidence that this wobble existed; TTI engineer Roger Bligh testified that the wobble was something he had observed, but had not tested for.

Dean Sicking, a University of Alabama engineering professor who designed the ET-2000, testified that Mitchell threatened to harm him professionally if he testified in the qui tam trial.  Sicking said:

[Mitchell] went on to say that we plan to treat all the witnesses for — for Mr. Harman the same way.  And — and I looked at him and I was a little surprised by that and then he said, I hate to see that happen to you.

In 2012, Trinity Industries was successful in fending off federal scrutiny of the safety of its ET-Plus guardrail end terminal, after Harman brought his claims to the attention of the FHWA and several state Departments of Transportation. But Trinity’s loss yesterday follows another state giving the ET-Plus the boot. The Virginia DOT has removed the ET-Plus guardrails from the qualified products list and given Trinity until Friday to provide the state agency a laundry list of items:

  • Conduct testing of the modified (4″ channel) ET-Plus on 27.75 inch guardrail at a nationally accredited testing facility using NCHRP 350 criteria.
  • Allow VDOT and consultants to be present at the testing to verify proper protocol.
  • Provide test analysis and reports for new testing, including detailed product schematics for the system and the head, depicting all dimensions.
  • Immediately advise VDOT of any additional modifications made to the ET-Plus after 2005 and seek approval from VDOT for any such modifications

Meanwhile, Congress may be leaning in for a better look at the Federal Highway Administration’s acceptance of Trinity’s seven-years-too-late admission of changing a critical dimension, and Trinity’s actions in this debacle. 

Safety Research & Strategies Wins FOIA Case Against Florida DOT

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A Leon County, Florida state judge has found that the state Department of Transportation violated the Public Records Act when it allowed guardrail manufacturer Trinity Industries to review thousands of emails involving Florida state officials before releasing them to Safety Research & Strategies.

The stipulated Final Judgment, signed on September 16 by Circuit Court Judge Angel C. Dempsey of Florida’s Second Judicial Circuit, awards SRS $13,844.50 in legal fees and acknowledges that:

On April 14, 2014, FDOT produced thirteen files responsive to the Safety Research public records request ("the Request.) FDOT then allowed Trinity Industries, LLC, a manufacturer of ET-Plus guardrail systems, to review thousands of emails which were also responsive to the Request prior to their ultimate production to Safety Research on May 24, 2014.

On February 10, SRS filed a public records request, seeking all communications and documents related to Florida guardrails manufactured by Trinity Industries, as part of its ongoing research into the safety of Trinity’s ET-Plus guardrail end terminals. The ET-Plus design has come under fire for dimensional changes which, its critics charge, prevent the guardrail from operating properly. Instead of extruding the rail through a chute and allowing striking vehicles to safely ride down the crash forces, the ET-Plus guardrail end terminals cause the rail to jam, forming a spear the can penetrate the striking vehicle, critics allege. The American Association of State Transportation and Highway Officials and others have raised questions about its safety performance and its role in motorists’ injuries and deaths. ET-Plus guardrails have been installed along Florida highways, like many U.S. states.

Initially, the FDOT released only 13 files to SRS. When it challenged the FDOT on the completeness of its search, the state agency admitted that it had withheld thousands of emails responsive to SRS’s request, and, in April, offered to send the Rehoboth, Mass. firm a CD of the documents. In early May, when SRS contacted the FDOT asking the whereabouts of the CD, the state agency confessed that it had sent the documents to Trinity for review before sending them to SRS.

On May 22, Safety Research and Strategies filed a civil lawsuit against the FDOT to compel compliance with Florida's Public Records Act and produce the requested public records. The civil suit accused the FDOT of allowing “Trinity, a private company, to perform the government function of reviewing records to determine if requested records are confidential or exempt.”

Trinity is a foreign corporation with no core competency or training in interpreting or applying Florida's laws addressing which records would legally qualify as confidential or exempt. By allowing Trinity to be the sole arbiter of what constitutes an exempt or confidential record, FDOT is violating section 119.01, Florida Statutes, by allowing a private company to, "[impair] the ability of the public to inspect or copy the public records of the agency, the lawsuit alleged.

The FDOT then agreed to release 4,000 emails that were responsive to SRS’s request. In reviewing those emails, SRS found references to other documents, which were not produced.  SRS’s attorney Matthew Gaetz III filed a motion to compel the FDOT to make a corporate representative available for a deposition to determine why it sent responsive documents to Trinity for its review.

In August, SRS and the FDOT negotiated a settlement in which the latter admitted that it gave documents to Trinity for review before releasing them to and agreed to pay SRS’s legal fees.

SRS has also filed a Freedom of Information Act lawsuit against the Federal Highway Administration for the public release of documents regarding the safety of Trinity guardrail end terminals used on highways nationwide.  The civil lawsuit, filed in U.S. District Court, District of Columbia, alleges that the FHWA violated the Freedom of Information Act by improperly withholding records and failing to respond to two separate administrative appeals on the failure to release documents pertaining to the agency’s interactions with Trinity and with the American Association of State Highway and Transportation Officials. SRS originally sought the documents in November and January.  That suit is pending.

What Good Can Come of Reporting Toyota UA?

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Last week, two young clean-cut and preternaturally earnest lawyers travelled from the D.C. and New York offices of Cahill Gordon & Reindel LLP to meet with Bob and Kathy Ruginis, the Bristol, RI couple who reported their Unintended Acceleration incident while parking to the Toyota Special Monitor and to NHTSA.  

To recap: On  June 10, Kathy Ruginis was attempting to park her 2010 Toyota Corolla on a town street, when the vehicle surged forward, without any input to the accelerator and crashed into an unoccupied parked Jeep in front of it. Kathy’s foot was on the brake at the time. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually when the Corolla was operating at higher speeds, since the couple bought the vehicle new in May 2010. Kathy Ruginis, a Catholic school educator, used the Corolla for commuting to her job in Massachusetts. Early in her ownership, she had taken the vehicle twice to the dealership complaining of these surges. The dealership techs drove her car in a circle around a big box store-parking lot and proclaimed that the surges were just the result of downshifting, which strangely, the mechanic never himself experienced during the test drive.

Then came the June 8 crash. A June 24 inspection, performed by a Toyota contractor, included a 16-mile test drive, a visual inspection and a download of the Event Data Recorder, which confirmed the account of Kathy Ruginis and her passenger: the Corolla was surging while her foot was on the brake. It showed in the five seconds of vehicle data before the system made the decision on whether to deploy the airbag: accelerator pedal untouched, brake pedal on, speed and RPMs doubled.  In denying the Ruginis claim, Toyota only considered the results of the “test” drive and the physical inspection: “Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.”

Bob and Kathy Ruginis decided to take their case to two higher authorities: the Toyota Independent Monitor David Kelley, a position created by the March Deferred Prosecution Agreement that closed the criminal investigation into Toyota’s lies about its Unintended Acceleration problems, and Acting NHTSA Administrator David Friedman. The Ruginises requested that the former look into Toyota’s dishonest dealing and the latter into low speed surges in MY 2006-2011 Toyota Corollas.

Past is Prologue

The Cahill lawyers, Sean P. Tonolli and Frederick “Fritz” Vaughan were professional, pleasant, and accessible, running their questions on three tracks: what happened; what the Ruginis family thought about Toyotas in general and knew about Toyota UA specifically; and, the responsiveness Toyota’s customer experience. How long did it take Toyota to return your calls? To whom did you speak?  Were they polite?

Tonolli, a former federal prosecutor, described their charge thus: We want to make sure that there isn’t a repeat of 2009 and 2010 – the height of Toyota’s crisis.

Safety Research & Strategies President Sean Kane, who attended the meeting, told Tonolli he was too late. The Toyota Unintended Acceleration problem continues to unfold exactly as it has since the first Camry with Electronic Throttle Control rolled off the assembly line. Drivers experience a UA; Toyota and NHTSA dismiss their accounts as unreliable and cobble together a driver error or pedal entrapment explanation with whatever is at hand –  no matter how unlikely, illogical or belied by the evidence. Driver gets stuck with a vehicle they are too scared to drive and are reluctant to foist upon someone else.  

The interview elicited more interesting details about the Corolla’s behavior. Kathy Ruginis told the investigators that she experienced these surges, two to four times a month. A conservative driver, she was able to keep control of her Corolla, in part, because by all accounts, it is her habit to leave plenty of space between her vehicle and that in front of it. Over the last four years, she shrugged it off and compensated. They had offered the Corolla to their oldest daughter, who needed a car, but she refused, because, she, too had experienced one of those surges and was unnerved by it.

As Bob and Kathy Ruginis told it, the Toyota customer experience is as crappy as ever. Getting answers was an arduous process that produced no real results. Phone call after phone call, message upon message. The person you needed to speak with was never immediately available to talk to you; you got passed around like a bottle of whiskey at a hobo camp; direct email addresses, verboten. Ruginis, familiar with corporate email address structures, played around until he figured out how to send an email directly to the employee he wished to contact. All in vain. Toyota not only dismissed the EDR readout, they refused to tell Bob Ruginis, an embedded software expert with 35 years’ experience, what they thought his EDR readout showed. In fact, told him that they were not allowed to say what the EDR readout purported to show.

That did not stop Toyota spokesman Mike Michels from telling journalists from The Wall Street Journal, USAToday and Providence Rhode Island news station WPRI who reported on the Ruginises’ petitions, that the EDR showed a case of late braking. A. It doesn’t. B. As Bob Ruginis pointed out: Toyota couldn’t tell us, but Toyota could tell the media?

The Safety Record didn’t know what to make of these customer service questions. Toyota pled guilty to a fraud charge. As part of that plea, the automaker admitted that it committed fraud upon NHTSA, Congress and consumers. Toyota continues to defraud consumers who have had a UA incident unless it resulted in a serious injury or death. (Those cases that charge electronic defects are getting settled faster than you can say Michael Barr.)

Toyota takes a customer’s money in exchange for a defective vehicle. When the defect surfaces, it ignores all evidence of the defect, stonewalls and blames the customer and bids them Good Day. While the Independent Monitor does not and cannot assess Toyota’s technical defects – how exactly will Mr. Kelley write his report to the U.S. Department of Justice on the matter at the heart of the government’s case if he doesn’t address the defects?

Enter NHTSA

Meanwhile NHTSA, an acronym which so often seems to stand for: Not Having The Sense to Ask, has not made a formal response to Bob and Kathy Ruginis’ petition – although a spokesman did publicly opine to the news media that his EDR probably showed a dual-pedal application.

Offline, various representatives of the Office of Defects Investigation have asked Ruginis whether he would be willing to lease his Corolla to the agency for “testing” and could he please give them his list of 163 Vehicle Owners Questionnaire complaints from Toyota Corolla owners who have complained of low-speed surges?

The Safety Record recalls the history of NHTSA’s Unintended Acceleration investigation history and advises: Be skeptical.

We won’t go all the way back to the 1989 Silver Book – we’ll start with Toyota.

When it comes to Toyota UA, ODI investigators don’t believe drivers – or their witnesses.

  • ODI investigators tried to persuade Jeffery Pepski, the Lexus ES350 owner who petitioned for a defect investigation in April 2009 after a very frightening high-speed UA, that his event was a case of floor mat entrapment. Pepski’s vehicle did not have a stacked all-weather mat – the type that NHTSA linked to pedal interference. They showed him how a carpet floor mat could entrap a pedal. Then, Pepski showed them how easy it was to release the pedal by manipulating it with his foot – as he did during the event. Toyota claimed there were witness marks on the carpet. Pepski countered that their inspection came five months after the event, so the notion that witness marks remained in the carpet were ludicrous.
  • ODI suggested to the Las Vegas Metropolitan Police Department that the January 2004 Yago incident could be a case of pedal misapplication. George and Maureen Yago rocketed off a fourth-floor parking garage in their 2002 Camry XLE. Two witnesses following the Yagos into the garage said that they saw the vehicle pull slowly into a space and come to a stop, (observing that the Camry’s brake lights were lit) when the vehicle suddenly took off.
  • ODI told William Kronholm, who experienced two UA in his 2008 Tacoma that his was a case of dual-pedal application caused by his ski boots. Kronholm actually tried to hit both pedals at once and said that he would have to angle his foot into a memorably unnatural position to achieve that.
  • In 2010 ODI postulated that the four UA events experienced by Andrew Shultz in his 2009 Tacoma was a dual pedal application incident, caused by military-style boots. Shultz works for the military as a civilian and did not own a pair of military-style boots.

 

NHTSA misuses VOQ data to support their institutional bias against causes of UA that are anything but mechanical or driver related:

  • In denying Pepski’s petition, the agency deliberately mischaracterized the narratives of VOQs he had gathered to bolster his petition. The agency deemed some of the incidents floor mat-related, even when the driver said things such as: “On two prior occasions the vehicle accelerated from speeds between 20-30 mph, to speeds up to 50-60 mph. On 9/11/07, the vehicle accelerated at speeds up to 80-90 mph. We are aware of the Lexus notification of floor mat interference, so we removed the mats after the first two times, but the last and most frightening, occurrence happened without the mat in the vehicle.”
  • In 2011, the agency used VOQs to dismiss the only physical evidence found in the joint NHTSA-NASA investigation into electronic causes of high-speed UA events in Toyota – the presence of tin whiskers in the acceleration pedal position sensor that could cause a short circuit and a wide-open throttle. NHTSA employed some bizarre methodology that counted the number of warranty claims for an accelerator pedal-related problem against the number of VOQs. NHTSA believed that if the number of warranty claims was greater than the number of complaints, this would mean that electronics was a root cause. But if more consumers complained to NHTSA about Toyota UA than received a warranty repair, then that would be proof that electronics was not a cause. Too many people complained to NHTSA, so the agency concluded cause wasn’t electronic.
  • Or, too many people complained to NHTSA, so it wasn’t the result of people having actual problems, it was all due to the media hype effect – another NHTSA statistics fail. Read What NHTSA’s Data Can Tell Us about Unintended Acceleration and Electronic Throttle Control Systems  http://onlinepubs.trb.org/onlinepubs/UA/101011Whitfield.pdf  – we’re too tired to explain.

 

Even when ODI witnesses Unintended Acceleration with no input from the driver with their very own eyes, they dismiss it.

  • In May 2012, two ODI engineers witnessed a 2004 Prius, owned by Joseph McClelland, high-ranking government official, accelerate on its own several times while on a test drive with the owner, without interference from the floor mat, without a stuck accelerator pedal or the driver’s foot on any pedal. They videotaped these incidents and downloaded data from the vehicle during at least one incident when the engine raced uncommanded in the owner’s garage and admonished the owner to preserve his vehicle for further research. “They said: Did you see that?” McClelland recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.” Three months later, the agency dumped the investigation. Investigators told McClelland that they weren’t interested because it thought that it was an end-of-life issue for the hydrogen-fuel cell of the battery and told The New York Times that it wasn’t a safety issue: [NHTSA] also noted that the vehicle “could easily be controlled by the brakes” and “displayed ample warning lights” indicating engine trouble.” (seeGovernment Officials Video Electronic Unintended Acceleration in Toyota: NHTSA Hides Information, SRS Sues Agency for Records)

 

NHTSA really has no clue how to test for these problems.

  • In 2010, Southern Illinois University automotive electronics professor David Gilbert visited NHTSA’s Vehicle Research and Test Center in East Liberty, Ohio to see how they were testing vehicles for unintended acceleration problems. He found that NHTSA did not have sophisticated diagnostic equipment, was not looking at the right vehicles and  had not done enough in-depth electronics research, investigation, or testing to determine how electronics can affect vehicle performance. “Simply plugging in scan tools and reviewing data is not going to be enough to truly investigate the SUA issue,” he wrote in a letter to NHTSA.  

 

What Good Can Come of Reporting Toyota UA?

If NHTSA, People Blaming People™, can’t really figure it out because it lacks the expertise and the will to do so, and the Independent Monitor wants to know if Toyota bought you dinner before it screwed you, why report Toyota UA all?

The Safety Record says just do it because, the problems have not been fixed. Drivers continue to experience UA events that cannot be attributed to pedal entrapment or driver error. Do it to create the record of the reality, not the fairy tales the agency and its regulatory partner, Toyota, want to peddle.

Eventually, the pretzel logic the authorities have attempted to apply to this frustrating, intermittent, and dangerous electronic problem will crumble into a pile of salty crumbs. 

Here’s where you can report your Toyota UA to Independent Monitor David Kelley:

 

Toyota Independent Monitor

c/o Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY 10005-1702

ToyotaMonitor@Cahill.com

 

Toyota’s Gone Fishin’

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In December 2009, as Toyota faced increasing scrutiny from Congress and the National Highway Traffic Safety Administration in the wake of the horrific unintended acceleration crash in that killed California Highway Patrolman Mark Saylor, his wife, daughter and brother-in-law, the automaker’s image-makers were prepared to go on the offensive. According to an April 2013 article in Corporate Counsel, a Toyota public relations staffer named Masami Doi wrote this email:
 
There are at most around 10 people who are the sources of negative tone communications. If they can be suppressed, I think we will be able to manage it somehow. Like you said, let’s go with an intention of destroying each individual person’s ability to oppose us, one by one. (To do or not to do is a separate question.)
 
We do not know who exactly suggested destroying each individual, but we know they tried. We know that the list at least doubled. And we know that Toyota is using Betsy Benjaminson, a private translator-turned-whistleblower who released sensitive internal Toyota documents to Corporate Counsel magazine and Iowa Senator Charles Grassley during the Toyota Unintended Acceleration crisis, as a battering ram to get at more of them.
 
On August 20, Benjaminson is scheduled to be deposed in the Los Angeles offices of Skadden, Arps, Slate, Meagher & Flom LLP and to produce a slew of documents, including all communications with 20 people who have challenged Toyota’s narrative that there were no possible electronic causes of the unintended acceleration. They range from SRS president Sean Kane, to British automotive electronics experts Keith Armstrong and Antony Anderson, NASA scientists Norman Helmhold and Henning Leidecker to journalist Junko Yoshida, to Michael Barr, an embedded software specialist whose withering assessment of the safety, testability, and functionality of Toyota’s software resulted in the first jury verdict against Toyota in a UA case.
 
Ostensibly, Toyota is searching for the link between Benjaminson and a presentation Barr made to that jury, entitled “2005 Camry L4 Software Analysis.” While a public version, with redacted slides of some sub-routines is available, Benjaminson has posted the presentation in its native format on her website, and that has provided the opening for Toyota to go fishing for retaliatory evidence against its critics. (A legal defense fund has been set up for Benjaminson https://www.indiegogo.com/projects/betsy-benjaminson-legal-defense-fund.) This latest legal move is of a piece with Toyota’s aggressive stance toward entities that have dared to challenge the automaker’s public relations.    
 
Like some corporate version of Agatha Christie’s Ten Little Indians, Toyota first tried to take out Kane and Southern Illinois University automotive electronics professor David Gilbert. SRS had begun reporting on the problem in 2009, before the Saylor crash, produced several reports,
based on public documents, on the roots of the crisis. Kane also testified before the House Committee on Energy and Commerce and the National Academies of Science that the record didn’t support Toyota’s assertion that electronics were not to blame for some of the complaints.
Gilbert got in Toyota’s crosshairs when he conducted a preliminary study for Safety Research & Strategies that showed that a short circuit in the Accelerator Pedal Position Sensor could cause Toyota’s Electronic Throttle Control to go to a wide-open condition, without setting a Diagnostic
Trouble Code. Gilbert also presented his findings to Congress.
 
Toyota hired the Benenson Strategy Group, a prominent public relations consultant, to develop the best lines of attack against the two. And they tested the messaging, via an online poll that asked the survey takers to judge Kane’s and Gilbert’s credibility.
 
Toyota criticized Gilbert’s work in a web-based press conference. Toyota, which had donated vehicles, provided internships and networking opportunities for SIU’s Automotive Technology students, sent its attorneys to Southern Illinois University Carbondale to discuss their concerns with university officials.  Terry Martin, manager of customer quality at Toyota and Neil Swartz, an SIUC alumnus and corporate manager for distribution in Toyota’s North American Parts division, resigned from the department’s advisory board. Mark Thompson, an SIU alum and a Toyota Motor Sales employee, e-mailed the school’s chancellor to suggest that Gilbert be fired and that Toyota might pull its support from the program.
 
Toyota unleashed the Cracken on James Sikes, a California Prius owner, who had the audacity to experience a UA on a San Diego highway in March 2010 as Toyota was conducting its press conference trashing Gilbert’s work. Sykes, a 61-year-old Prius owner alleged that his vehicle accelerated suddenly and would not respond to hard braking. His struggles to regain control of his vehicle were observed by a California Highway Patrol officer, who was called to the scene, and recorded on a 911 tape. The police report noted that the Prius’ brakes were burnt out and that an examination of Sykes’ vital signs by emergency medical personnel immediately after the event showed he had very high blood pressure and heart rate. The police did not charge Sykes. Toyota held another press conference to announce that a preliminary examination showed that Sykes had depressed the brakes 250 times. Toyota officials suggested, without saying so, that Sikes faked the event. Meanwhile, news outlets also reported many unflattering details of Sykes personal life, alerted by “anonymous tipsters.”  His lengthy 911 call is a sound portrait of a man in extreme stress, and if he was perpetrating a hoax, he should consider a career in acting.
 
Sikes, an easy target, faded from public view; Gilbert was not fired; SRS continued to report on Toyota UA, but in large measure, Toyota was successful in fending off challenges to its version of reality. NHTSA, itself compromised by serial fruitless investigation into the problem, opted for a political solution by engaging the NASA Engineering Safety Center to validate its technical failures and make the whole thing go away. Various ill-informed commentators amplified the message. Toyota won some civil cases and settled the ones with fact patterns that would be hard to defend before a jury.
 
Then came the Bookout verdict and it was suddenly game over. In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry, when it experienced an unintended acceleration. Bookout tried to stop her car by pulling the parking brake, leaving lengthy skid marks. Her Camry continued to rocket down the ramp, stopping only after its nose was embedded in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.
 
Toyota, perhaps, thought it would play the confused old lady card at trial. But last October, an Oklahoma jury heard testimony from Barr, who spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards, who ensured that entrants brought no paper in or out, wore no belts or watches. And his testimony forced Toyota to hastily settle the suit – hours after the jury determined that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs – but before the jury could determine punitive damages.
 
Barr testified about the specifics of Toyota’s spaghetti source code, based on his 800-page report. 
 
There are a large number of functions that are overly complex.  By the standard industry metrics some of them are untestable, meaning that it is so complicated a recipe that there is no way to develop a reliable test suite or test methodology to test all the possible things that can happen in it.  Some of them are even so complex that they are what is called unmaintainable, which means that if you go in to fix a bug or to make a change, you’re likely to create a new bug in the process.  Just because your car has the latest version of the firmware — that is what we call embedded software — doesn’t mean it is safer necessarily than the older one.  And that conclusion is that the failsafes are inadequate.  The failsafes that they have contain defects or gaps.  But on the whole, the safety architecture is a house of cards.  It is possible for a large percentage of the failsafes to be disabled at the same time that the throttle control is lost. 
 
Barr explained that many of the vehicle behavior malfunctions could be caused by the death of tasks within the CPU — in particular, the death of a proprietary-name task, called Task X at trial. The name of this task was kept secret, but its functional failures took center stage at the Bookout trial. Barr dubbed it “the kitchen-sink” task, because it controlled a lot of the vehicle’s functions, including throttle control; the cruise control – turning it on, maintain the speed and turning it off – and many of the failsafes on the main CPU.  Barr testified that Toyota’s watchdog supervisor design – software to detect the death of a task – “is incapable of ever detecting the death of a major task. That’s its whole job. It doesn’t do it. It’s not designed to do it.” Instead, Toyota designed it to monitor CPU overload, and, Barr testified: “it doesn’t even do that right. CPU overload is when there’s too much work in a burst, a period of time to do all the tasks. If that happens for too long, the car can become dangerous because tasks not getting to use the CPU is like temporarily tasks dying.”  Barr also testified that the operating system contained codes that would throw away error information, ignoring codes identifying a problem with a task.
 
In March, Toyota paid a 1.2 billion fine and admitted to criminal wrongdoing – hiding defects and lying to everyone from the government to its customers. Toyota paid the money and took a deferred prosecution deal on a single wire fraud charge to end a four-year federal criminal investigation. At the time, the chief legal officer for Toyota’s North American division said: “Entering this agreement, while difficult, is a major step toward putting this unfortunate chapter behind us.”
 
So, all this comes down to a Powerpoint presentation? We don’t think so. NHTSA has finally begun to post Toyota’s submissions to its Timeliness Query investigation (TQ10-001) on its pedal entrapment recalls – another case in which the automaker paid the government millions to put the matter to rest. So, any enterprising researcher can take a stroll through, and learn more about Toyota’s machinations. The only people who have not been able to buy their way out of the problem are the owners of Toyota vehicles controlled – or perhaps uncontrolled by the crappy and mysterious Task X.
 
Unfortunately, this “unfortunate chapter” is not behind us.

Litigating the Goodyear Way

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Earlier this month, the Goodyear legal team was prepared to argue before a judge in the Philadelphia County Court of Common Pleas – in essence – that a 2007 Customer Satisfaction campaign to replace 400,000 P215/70R14 tries sold in the U.S. under 23 different names was confidential business information.

This assertion was never put to the test in court. But it’s another one of Goodyear’s litigation tactics designed to turn the discovery process into the two-dimensional version of a waterboarding. Delay, delay, delay. Deny, deny, deny. Goodyear is all about full-throated declarations about the non-existence of evidence and its legal team does not flinch in making them to a judge. In Walden v. Goodyear, Safety Research & Strategies obtained non-existent documents via garden-variety research methods and if you want to read them, click here.

The claim arose in Walden v. Goodyear, a case that involved the catastrophic failure of a Douglas Xtra Trac P215 70/R14. On July 26, 2010, Cynthia Eure was driving her van westbound on the Pennsylvania Turnpike, when her right rear tire suffered a tread separation. The vehicle departed the highway and rolled over.  Five-year-old Tashi Walden was ejected and died of his injuries; two other passengers in the van were injured, but survived. Eure’s failed tire was among those that are part of the customer satisfaction campaign. Continue reading →

NHTSA’s Message to the Defense: Call Us Before We Call You

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This week, while heads were rolling out the doors of the RenCen (GM headquarters) in downtown Detroit, the Chief Counsel of the National Highway Traffic Safety Administration was laying down the law for defense lawyers at a Chicago legal conference.

Amid the presentations at the American Conference Institute’s 7th Annual Summit on Defending & Managing Automotive Product Liability Litigation devoted to defeating class-actions, the liability of autonomous cars and one of our personal faves –tire aging (with a shout-out to SRS’ Sean Kane!), was a warning from the government.

First, Chief Counsel O. Kevin Vincent lulled them with a feel-good “rah-rah-ree” paean to industry. And then, he made the hair on the back of their necks rise: A manufacturer’s obligation to report a defect within five days of its discovery is the law, and after a long hiatus from doing its job, NHTSA intended to take “an aggressive stance” in enforcing it.

The first offense line in the discovery of a defect was not the Office of Defects Investigation, Vincent said. It was the manufacturers themselves.

“We don’t have analysts, but your clients do. You all have ability to find these defects,” he said.

A manufacturer cannot delay a defect finding, while a safety problem meanders through an internal process involving multiple committees. It cannot hide its knowledge behind a wall of attorney work product and attorney-client privilege. It cannot wait until it’s gotten the supply chain ready to implement the recall.

And it better not wait until after it settles a plaintiff’s case for big bucks. The TREAD Act obligated NHTSA to “follow up on civil litigation that sends up red flags,” he said.  And they’d be looking for signs of foot-dragging in large civil litigation settlements. Not right away, certainly. Civil actions take years, he said. (This gives the safety problem plenty of time to fester.) How much of a settlement was enough to catch NHTSA’s attention? Vincent wouldn’t name a figure. Continue reading →

SRS Sues Florida DOT for Guardrail Docs

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Safety Research & Strategies, an automobile and product safety research and consulting firm based in Rehoboth, Mass. filed an open records lawsuit in Florida state court, alleging that the state’s Department of Transportation violated the Florida Public Records Act when it withheld documents pertaining to its relationship with guardrail manufacturer Trinity Industries pending a review by the company.

The lawsuit, filed today by Florida State Representative Matthew L. Gaetz  (R-Dist. 4) asks the Circuit Court of the Second Judicial Circuit for Leon County to compel the FDOT to release the materials SRS requested on February 10,  associated with inquiries, investigations, and communications between FDOT and Trinity regarding the design, manufacture, failure, purchase and testing of Trinity ET-Plus guardrail systems. SRS also asked for documents related to any motor vehicle accidents involving ET-Plus and consumer complaints about the safety of the system.

The Dallas, Texas-based manufacturer, a globally dominant producer and seller of guardrail systems has been under fire since 2012, when a competitor, SPIG Industries, of Bristol, Va. charged that sometime between 2002 and 2005, Trinity modified the design of its guardrail end terminals, causing it to perform poorly in crashes and injure and kill occupants in striking vehicles. These allegations have been the subject of numerous news stories abroad and in the U.S., including the Florida media. Continue reading →