Category: litigation

Haeger High-Stakes Poker

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So, if you bluff your way out of handing over legitimate discovery after the case settles, do you really owe the plaintiff’s attorney $2.6 million? That’s the story Goodyear may be telling in its appeal of a November sanctions order in the Arizona G-159 tire tragedy otherwise known as Haeger v. Goodyear, now in its eighth year of litigation.

When we last left the case, attorney David L. Kurtz, who represented Leroy and Donna Haeger, sought damages from Goodyear on a separate but parallel track (see The Wages of Fraud). In June he filed a seven-count, 153-page lawsuit, in Arizona State Superior Court, seeking punitive damages via a jury trial for five years of delay and deception in the original product liability action. But the history of Goodyear, the G159, and the Haeger case is so long and sad, we’re going to start from the beginning.

In June 2003, Leroy and Donna Haeger, along with their passengers, Barry and Suzanne Haeger, were seriously injured when the right front G159 tire on their Spartan Gulf Stream Coach RV failed, causing a rollover. The G159 and a Class A motorhome had a lousy marriage; the tire design was prone to overheat on RVs that typically travel at greater than 65- mph speeds for extended periods. Goodyear knew that from its internal testing – but, loathe to miss a market-share – it promoted the match successfully in the 1990s and 2000. Eventually, though, the G159 and RVs produced numerous lawsuits when the tires failed, injuring and killing motorhome occupants. The Haegers were among them, and in 2005 they filed suit. The action was torturous, with more than 1,000 pleadings. Kurtz had asked for all internal testing regarding the G159, and Goodyear responded by employing a tactic that it had used – with varying degrees of success in other cases – turning over as little as possible, and swearing to the court that it had no more.  The Haegers settled in 2010.

In June 2010, Kurtz learned from The Safety Record Blog about a $5.7 million plaintiff’s verdict in another G159 case, Schalmo v Goodyear. At trial, the blog reported, Schalmo’s attorneys presented Goodyear documents including internal heat and speed testing and failure rate data showing that Goodyear knew the G159 was improperly approved for 75 mph continuous highway use. Kurtz began corresponding with Basil Musnuff, formerly of Roetzel & Andress and formerly Goodyear’s national coordinating counsel, to determine if Goodyear had withheld such tests in Haeger. Eventually, Musnuff conceded that Goodyear had, but wasn’t obligated to turn over any more than its NHTSA compliance test results. Continue reading →

The Toyota Claimants Are Getting Restless

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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! Continue reading →

Ford Unintended Acceleration Hopping that Class Action Train

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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. Continue reading →

Submersion Lawsuit Highlights Escape Design Gaps

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On August 19, 2011, Washington Boulevard, a Pittsburgh thoroughfare built over a stream bed filled suddenly with nine feet of water, trapping Kimberly A. Griffith and her two daughters in their Chrysler minivan. Griffith, Brenna, 12, and Mikaela, 8, drowned in the minivan, unable to open the power windows, while the outside water pressure made it impossible to open the vehicle’s doors. Mary Safill, a 72-year-old woman who was also caught up in the flash flood on Washington Street, managed to escape her car, but drowned in the torrent.

Earlier this month, the law firm of Swensen, Perer & Kontos filed a lawsuit on behalf of the victims’ families. The civil action names eight defendants, including Chrysler for failing to warn consumers about the hazards of vehicle submersion and for a failure to implement escape technology.

Motor vehicle submersions are small but significant portion of motor vehicle deaths.  The National Highway Traffic Safety Administration, using the Fatal Analysis Reporting System (FARS) and the National Automotive Sampling System – Crashworthiness Data Systems (NASS-CDS) has reported that an average of 384 occupants die in motor vehicle crashes each year – not including those that occur during floods. An internal NHTSA analysis of non-flooding submersion deaths showed that most occurred as the result of a collision or rollover, that the windows were already smashed by impacts, and that most occupants were already injured before the vehicle hit the water. 

In the published version of the NHTSA research, Drowning Deaths In Motor Vehicle Traffic Accidents, author Rory Austin says the little is known about drowning deaths that occur as the result of a traffic crash. His analysis found that “63 percent of the passenger vehicle drowning fatalities involved a rollover, and 12 percent involved a collision with another motor vehicle. The most common passenger vehicle crash scenario was a single-vehicle rollover accounting for 59 percent of the fatalities. These crashes frequently involved running off the road and colliding with a fixed object prior to the rollover and immersion. In cases with known restraint use, the victim was not using any form of restraint system 52 percent of the time.”

Research by Gordon Giesbrecht and Gerren McDonald of the University of Manitoba concluded the opposite: “Many, if not most, victims die from drowning rather than from trauma.” In some industrialized nations, such as New Zealand, Canada, and the U.S. motor vehicle submersions. account for a significant proportion of all accidental drowning deaths – from 7 to 11.6 percent Giesbrecht and McDonald call motor vehicle submersions the deadliest type of single vehicle crash. Continue reading →

How to Get Toyota to Listen to Customers. Hint: Bring Your Lawyer

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In May 2011, everybody at Toyota North America joined hands and sung Kumbaya – it was the release of the much-vaunted A Road Forward: The Report of the Toyota North American Quality Advisory Panel. The report was part of a public relations blitz to restore consumer confidence in Toyota products in the wake of the Unintended Acceleration debacle. And, within the 60 pages of corporate soul-searching was the way back home – and it ran right through Toyota’s customers. The glossy document was laced with admissions that Toyota had failed to heed the voices of its customers such as this:

“Toyota has recognized that many of the challenges it faced in 2009 and 2010 were a result of failures to adequately listen to and incorporate external feedback from various stakeholders, including consumers, third-party rating agencies, and regulators.”

A company personage no less distinguished than Stephen St. Angelo, Toyota’s North American Chief Quality Officer, promised the dawn of a new day:

“Right from the outset, we told them we wanted them to be straightforward with us, because we seriously want to keep improving our processes and our transparency. It is important to note that the Panel focused primarily on how we operate and communicate. While I am glad they’ve recognized the positive changes we’ve already made, I also appreciate how they want us to keep at it. I’ve told them we intend to do just that.”

So, how have they been doing with that listening stuff? Well that depends.

If you are a Toyota or Lexus customer who has merely complained about a UA event, you may not get beyond conversations with their customer care folks or a visit from the SMART team, who will tell you that your car’s just fine.

But, if you are a consumer who has been drawn into the multi-state litigation, Toyota will listen to you in a day-long deposition, in which Toyota wants you to bring every scrap of communication you made or received about Toyota – including with your family.

Toyota sought to depose at least eight consumers who experienced a UA in their Toyotas, most of them named by the plaintiff’s attorneys as “absent class members.” Although the plaintiffs withdrew some of their names, experts relied on a few of those incidents in formulating their opinions. Naturally, Toyota wants their own crack at these folks. Earlier this month, Judge Selna, who is overseeing the Multi-District Litigation in Orange County California, ruled that it saw little point in compelling a deposition since the absent class member is not going to offer any evidence to support class certification. Toyota has challenged this ruling. The legal tug-of-war continues. Continue reading →

DOT Settles Lawsuit over Toyota UA Documents, New Congressional Inquiry Raises More Questions

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The dam against electronically caused unintended acceleration in Toyotas that the National Highway Traffic Safety Administration and Toyota built, with outrage, secrecy, pedal interference recalls, and capped with the February 2011 NHTSA-NASA report springs more leaks. The question is: Can they keep it from collapsing entirely?

Safety Research & Strategies continues to examine information showing that unintended acceleration still plagues Toyota vehicles and that many incidents cannot be explained by floor mats, bad drivers and sticky pedals. Recently, the Department of Transportation settled a Freedom of Information Act (FOIA) lawsuit with SRS, agreeing to turn over investigatory documents, videos and photos related to the agency’s involvement with a 2011 recall of Toyota and Lexus models for alleged accelerator entrapment by interior trim. (The agency also agreed to pay our lawyer’s fees – this from the Most Transparent Administration Ever.)

The recall was precipitated by the Timothy Scott incident. Scott is a former 2007 Lexus RX owner who reported a frightening UA event as he headed home from the gym one morning. In short order, Toyota bought Scott’s vehicle, and pronounced it a case of trim interference. NHTSA never looked at Scott’s Lexus, but began to investigate this root cause in other vehicles. Within six weeks, Toyota recalled the vehicles and NHTSA was all done.

We were eager to see just what the agency found out about the possibility of trim interference as a root cause of UA and what it didn’t want to show us– enough, at least, to try to stash it behind Exemption 5 of the FOIA, which protects agency deliberations. Imagine our amazement when the videos – sans audio- appear to show that the Lexus RX trim does not interfere with the accelerator — or, not without a lot of manipulation of exemplar vehicles. We are no closer to understanding why NHTSA dropped its investigation, or how trim interference can cause a UA like Tim Scott experienced, or, more importantly, why we had to sue the DOT to get this. Continue reading →

Automakers Blame Drivers, But Settle Unintended Acceleration Cases

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Two recent settlements in Unintended Acceleration (UA) cases remind us that while Toyota has sucked all the oxygen in the room over this defect, other automakers’ products equipped with electronic throttle controls are also getting their share of complaints, causing their share of injury and property damage and winding up in civil court.

In the last month, Thomas J. Murray & Associates, a law firm based in Sandusky, Ohio, reached confidential settlements against Kia Motors America and Subaru for seriously injured plaintiffs who claimed that their vehicles suffered an unintended acceleration event.

The first case involved Mary McDaniels, a visiting nurse from Norton, Ohio, who was returning to the office after seeing a patient, when the throttle of her 2006 KIA Amanti suddenly opened, as she crept along in stop-and-go traffic. With vehicles in front of her and oncoming traffic directly to her left, McDaniels chose to steer her rapidly accelerating sedan off the road.

Attorney Molly O’Neill says that McDaniels testified that her first reaction was: “What is happening to me?” When McDaniels looked down to affirm the position of her foot, she saw that it was on the brake. The Amanti hit a ditch, became airborne, skidded and collided with a tree. McDaniels’ leg was fractured in several places. She is unable to walk without assistance as a result of the Dec. 26, 2007 crash and had to give up her job.

McDaniels v Kia Motors America went to trial in October. Over two weeks of testimony, the Murrray legal team was able to show that Kia’s “American engineers were aware of unintended acceleration or surging events not ascribed to driver error,” O’Neill says. “They surmised it could be electronic.” McDaniels’ Kia was bought as “new” with a full warranty, even though it had 6,900 miles on it at the time of purchase and had been used by Kia as an in-house vehicle. Continue reading →

Michelin Rapped for “Bad Faith Conduct”

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A federal judge in Atlanta has ordered to Michelin North American to pay attorneys’ fees and established that a Uniroyal Laredo Tire was “defective and unreasonably dangerous” as a sanction for nearly two years of discovery abuse.

“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. Continue reading →

Safety Research & Strategies Takes DOT and NHTSA Transparency Battle to Court; Sues for Toyota Investigation Documents

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WASHINGTON, D.C. – Safety Research & Strategies, a Massachusetts safety research firm that advocates for consumers on safety matters, sued the National Highway Traffic Safety Administration today over the release of Toyota Unintended Acceleration investigation documents.

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.” Continue reading →

How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today

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Last month, we reported a Florida circuit judge’s extraordinary decision to set aside a civil jury verdict in favor of Ford Motor Company, based on evidence and testimony that Ford had concealed an electronic cause of unintended acceleration from the National Highway Traffic Safety Administration – and its own expert witnesses. Judge William T. Swigert’s 51-page decision in Stimpson v Ford also outlines how decades of the automaker’s dissembling to limit its liability in civil lawsuits helped to mire the thinking about root causes of unintended acceleration in the limited context of mechanical agency, even as the electronic sophistication – and the potential for defects and unanticipated interactions between systems – in vehicles grew.

That a large corporation would conceal a deadly problem to protect its interests is hardly news – although the systemic and exacting strategies Ford employed in this case are notable. What makes this story important is how Ford also re-wrote the history on this issue and helped to shape the agency’s thinking about an ongoing problem for decades hence. We have only the public record regarding Toyota UA at our disposal – and precious little of that has actually been made public – so we can’t know how Toyota has assessed its own UA problem; if and what parallels in corporate misdirection might be drawn between Ford and Toyota. But one can see how Ford’s actions back in the 1980s still resonate with the agency today and how it has kept NHTSA from advancing its knowledge in electronic causes of UA that are not already detected by the vehicle diagnostics.

The Emergence of a Defect in the Age of Audi SUA

As recounted in the Judge Swigert’s order, the history of Ford and unintended acceleration goes back to 1973, when Ford’s cruise control was under development. Ford Engineer William Follmer “warned about the risk posed by electromagnetic interference, and cautioned that ‘to avoid disaster’ it was imperative to incorporate failsafe protection against EMI in the system’s design.” In 1976, two Ford engineers obtained a patent describing a design for the cruise control system’s printed circuit board to reduce the risk of a sudden acceleration posed by EMI. Continue reading →