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?
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