Elective Warning Reports Redux

Mercedes seat warmers are burning holes in their customers – but, really, who cares?

The Early Warning Reporting system, mandated by Congress in 2000 and officially established by the National Highway Traffic Safety Administration for the first collection of data in 2003 was supposed to use the power of data to detect defects at a distance. Death, injury, property damage claims in concert with vehicle production data would help tell the story. Over 10 years’ worth of numbers tells at least one story: Under-reporting is a problem and there is no real consequence for non-reporting – even if you do get caught.

Mercedes, that venerable manufacturer of fine German engineering, is a wonderful example of how EWR works – from the reporting issue to what the agency chooses to do with defect trend information that pops out of EWR data – like malfunctioning seat heaters that cause injuries and the manufacturer’s EWR reports to explode. But we’ll get to that in a moment. 

In early July, Senators Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) wrote to Acting Administrator David Friedman asking two questions:

  • How does NHTSA evaluate EWR reporting to ensure compliance?
  • Has NHTSA ever undertaken any enforcement action relating to a manufacturer's failure to fully or accurately report EWR claims?

The pair are sponsors of the Early Warning System Improvement Act, which would amp up the amount of data manufacturers would have to turn over to NHTSA in the case of death claims. Their letter to Friedman noted that Ferrari had never once filed a death or injury claim in EWR, and significant deviations between manufacturers’ EWR reporting. For example, from 2004-2013, GM filed an EWR death and injury report for every 1,524 vehicles sold, compared to Chrysler, death and injury claims for every 4,167 vehicles sold between 2004-2008 and one such report for 8,329 vehicles sold in 2009-2013.

EWR in Theory

In Friedman’s world, NHTSA thoroughly combs EWR for defect trends and non-reporters – the latter receiving stern communications reminding them of their obligations and of the serious consequences that await the guilty.
According to the Acting Administrator, the agency uses a variety of methods to ensure compliance, including information obtained during defect investigations and checking an automakers’ World Manufacturer Identification (WMI) number. “If a manufacturer has obtained a WMI number, but has not submitted early warning reporting information to NHTSA, NHTSA sends a letter to the manufacturer reminding it of its reporting obligations and the potential for civil penalties for non-compliance,” Friedman wrote. And in case there was any doubt:  NHTSA enforces EWR reporting requirements and pursues civil penalties “as appropriate” for noncompliance.

As for those wide disparities in reporting rates the Senators referenced – suggesting that some manufacturers may be under-reporting – Friedman attributes them to the “many factors” that can affect the number of reports, such as “vehicle use, owner demographics, and product mix.” Friedman also blamed manufacturers’ interpretations of what constitutes a claim: “Some manufacturers interpret ‘notice’ broadly and report incidents when the ‘notice’ consists of an article published in a newspaper describing an accident. Others are more conservative.” 

In Friedman’s world, once NHTSA gets those reports, “EWR data is thoroughly reviewed and analyzed,” using “sophisticated data mining techniques” to determine if potential defect trends exist.

EWR in Practice

In the real world, NHTSA does not notice when manufacturers do not file EWR reports. 

Senators Markey and Blumenthal, for example, noted that Ferrari had not filed one claim of any kind in 11 years – not NHTSA. Friedman said that the agency would look into it in response to that information.

Tire, component and child seat manufacturers don’t have WMIs, so the agency can’t use that number to chase EWR violators. 

In February 2013, SRS discovered three death and injury claims that had not been reported through EWR, and turned this information over to the agency. The missing claims involved one crash that occurred in in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused permanent and severe injuries to two young children. Harmony, which manufactured the child safety seat and Nankang, the Taiwanese tire manufacturer, and Tireco, the tire importer, were notified of these claims via civil lawsuits in August 2010 and November 2011, respectively. Neither were included in the manufacturer’s quarterly reports. 

To this day, Tireco is not even listed in NHTSA’s EWR database of manufacturers – meaning it has never submitted anything.

In the real world, NHTSA doesn’t care if manufacturers don’t file and, consequently, there are essentially no penalties for manufacturers who fail to file reportable claims. In May 2012, SRS disclosed those instances of non-reporting to NHTSA and tried to follow up, by requesting confirmation that these claims should have been submitted to the agency, and “what actions the agency plans to take.” After a Freedom of Information Act Request only turned up a draft copy of the agency’s EWR Data Analysis Plan from 2008, with page 6 missing, SRS appealed the response – which was denied. SRS sued the agency in federal court and received a few emails between NHTSA and Harmony. Nothing on Tireco. No written policies.

The emails we received between Michael Noah, vice-president of Harmony, and various NHTSA officials show that the agency did contact Harmony and remind company officials about their reporting obligations. At first, Noah tried to argue that he didn’t have to report the claims, because his investigation showed that they did not demonstrate that the safety seats contained a defect. (This is irrelevant to EWR reporting regulations.) In July 2013, NHTSA staff walked Noah through the process. And, after one rejected submission, Harmony correctly submitted four EWR death and injury claims for the second quarter of 2013 and Noah thanked them for their guidance and advice.

Problem solved. Harmony, having been shown the error of its ways, is sufficiently chastened and joins the community of responsible manufacturers who dutifully fulfill their EWR obligations. Well, that’s how the story ends in Friedman’s world. In the real world, Harmony has not filed a claim since. The company’s only submission ever is for the second quarter of 2013. 

Consequently, we doubt the existence of stern letters reminding manufacturers of their obligations. The “as appropriate” phrase Friedman used to describe NHTSA’s application of penalties for non-reporting is agency-speak for “there is no policy.” 

And, the agency apparently determines that a penalty is in order at a Halley’s Comet-like frequency. For example, Friedman cited the $100,000 fine imposed in 2009 on motorcycle manufacturer Piaggio for failing to report EWR claims. But, this penalty also covered the failure to launch a timely recall in 2005. If ODI hadn’t investigated fuel tank failures in the RST 1000 Futura motorcycles, it’s likely that the agency would never have noticed that Piaggio hadn’t submitted EWR reports, and even if it did notice – wouldn’t care.

EWR, Mercedes, and Seat Heaters

The Safety Record has done some simple math operations and, armed with nothing more than a calculator and NHTSA’s EWR database, we decided to follow up on a tip that Mercedes was under-reporting some claims. 

Indeed, from 2003 to 2013, Mercedes only reported 17 property damage claims. Seventeen in a decade. The automaker reported many more death and injury claims in that same time period – 520. Does that seem plausible? People who own these fine expensive products of German engineering don’t report their property damage claims?

Then, as The Safety Record tallied the claims from year to year, we noticed something odd. From 2003-2011, Mercedes death and injury claims averaged about 30 a year. Then in 2012, death and injury claims rocketed to 78, and in 2013, exploded again to 175. What was that about? It’s not easy to find out – not just from the EWR reports. They contain only the faintest outlines of information – vehicle year, make, model, the VIN, the date and location of the incident and the components involved. 

There is no detail regarding how components failed. For example, “airbags” is by far the most tagged component in EWR claims, but we don’t know from the EWR data whether this is a claim of non-deployment, as in a GM ignition problem that turns off the airbag, or an inadvertent deployment or one that sprays you with shrapnel, as in a Takata airbag that deployed in a fender-bender and took out the driver’s eye.  EWR only requires manufacturers to report component categories – and those categories aren’t granular enough to more specifically identify issues on their own.    

But some things do stand out, and when The Safety Record started reading the EWR reports, we found a sizeable number of component fields populated with the words seat, electrical and fire, or some combination thereof. In 2012 and 2013 as many as 69 death and injury claims out of 253 were somehow related to these component failures, and all 10 of the property damage claims Mercedes reported in 2012 and 2013 were fire-related – 100 percent of property damage complaints, which we know are vastly under-reported.

So we turned to NHTSA’s VOQ (complaint) database to see what drivers were telling NHTSA about seats, electrical and fire. A simple search for Mercedes model years 2005-2012 and the word “heater” found 38 complaints from Mercedes drivers, going back as far as 2008 – primarily mentioning Mercedes models from the 2006-2008 model years, but also those of more recent vintage, reporting that seat heaters were malfunctioning to the point of catching fire, with real flames and smoke, burning holes in seats, clothing and people. One driver experienced a crash in May 2008, after the passenger seat of her 2007 Mercedes ML350 caught fire as the vehicle was underway at 50 mph: “the smoke distracted her and caused her to lose control on the vehicle and crash into the median” (ODI 10228723). The most recent complaint came into the agency on October 20, 2014. The narratives go something like these:

The driver seat caught on fire due to a malfunctioning seat heater. A whole the size of a dime burned through the seat and the flame burned a hole into the coat of the vehicle's driver. (ODI 10649117)

The contact owns a 2006 Mercedes Benz ML350. The contact stated that the seat warmer overheated and caused the coils to burn through. The contact mentioned that she sustained second degree burns. The vehicle was taken to the dealer. The technician diagnosed that the seat heater had malfunctioned and the seat needed to be replaced. The manufacturer was made aware of the failure. The vehicle was not repaired. The failure and current mileage was 86,000. (ODI 10562938)

While driving turned on driver side seat heater. Less than 1 minute after I felt burning on my back, I pulled to the side and jumped out of vehicle. Smoke was filling car and jacket was on fire. Patted jacket out and found burn hole through jacket into sweater. After smoke cleared I saw driver seat was burned through. I was lucky this occurred on a side street at 20mph and not on a highway with posted speed of 65mph. Factory told me repair cost may not be covered since car is out of warranty, however local dealership made repair at no cost. I was not aware of the seat heater problem before, but now have researched and found it to be disturbing that no corrective measures have been taken to fix this seat fire. *tr (ODI 10557714)

Yes, “disturbing” is a good word to describe what has happened: Nothing. 

In April 2008, NHTSA opened a brief Preliminary Evaluation into seat heater fires affecting the 2007 Mercedes M-class, based on six crashes and four fires. But the investigation was closed after five months, because, according to the Closing Resume:

The data disclose few complaints and warranty reports concerning this issue. None of the “fire” reports involved open flame, but were thermal incidents in which the seat cushion sustained discoloration or a hole burned in the seat cover. 

As a result, Mercedes has not issued a recall to replace the seat heaters, which apparently start failing anywhere from one to seven years after the manufacture date, injuring occupants and creating dangerous driving conditions. And NHTSA, with its sophisticated data mining techniques, thorough review of EWR data, and its attention to the problem of under-reporting, complete with stern letters and civil fines:

  • Has not noticed that Mercedes isn’t reporting all property damage claims by a factor of a lot.
  • Has not sent a stern letter to Mercedes reminding it of its obligation to report all property damage claims.
  • Has not fined Mercedes for failing to report all property damage claims.
  • Did not notice during its 2008 ODI investigation of seat heater fires that Mercedes was under-reporting property damage claims. The automaker filed only one fire-related property damage claim in 2008.
  • Has not noticed the distinct and unusual seat heater-fire defect trend that not only continued, but actually got worse since it closed its investigation in September 2008.
  • Or has noticed, but decided that your seat catching on fire, filling the occupant compartment with smoke, burning the seat, your pants, and your gluteus maximus while driving is not a safety problem that requires further intervention by the regulator.

 See how EWR works in the real world?

The Real Story of EWR

Friedman began his letter to Senators Markey and Blumenthal with the agency’s boilerplate declaration of its pure intentions: “Our mission at the National Highway Traffic Safety Administration (NHTSA) is safety, and we take these issues seriously.”

NHTSA’s got a resource problem, no doubt. But, they also have a culture problem that is at least as large, if not larger, than its resource problem. The agency resents the meddling of outsiders, be it information about a GM ignition defect from a plaintiff’s lawyer – who NHTSA officials discourteously blow off, only to find themselves the subjects of many unflattering news stories; be it a safety advocate pointing out that death and injury claims are not being reported – who they force to file lawsuits in federal court to get answers to  simple questions; or be it Congress imposing an statistical tool on the agency –which it blows off by not auditing EWR regularly under some quality control procedure to ensure participation, and then ignoring both violators and the defect trends that crawl out of the swamp of broad component categories.

As far as we can discern, everything at NHTSA, is an “as appropriate” case. Piaggio –a small manufacturer of motorcycles – gets clipped $100,000 for non-reporting and an untimely recall for a fuel leak, based on 11 complaints and no injuries. (Did some DOT higher-up own a Piaggio?) But a major manufacturer like Mercedes can report virtually no property damage claims quarter after quarter, and allow its seat heaters to catch fire and burn occupants with impunity.

Bill Haddon, a physician who authored the Haddon Matrix, the pre-eminent injury prevention paradigm and NHTSA’s first administrator, is rolling over in his grave.

In our last blog, we asked: When will someone seriously address NHTSA’s staffing levels, defect surveillance and recall management processes and procedures? NHTSA, a self-proclaimed public health agency could use a seasoned epidemiologist who can lead and instill the types of practices and policies that provide real consumer protection. 

We repeat: When will someone seriously address NHTSA’s staffing levels, defect surveillance and recall management processes and procedures? NHTSA, a self-proclaimed public health agency could use a seasoned epidemiologist who can lead and instill the types of practices and policies that provide real consumer protection. 

NHTSA has to keep telling anyone who will listen how much it cares about safety – because its actions say otherwise.