May 24, 2012
From the annals of chutzpah: On March 12, the Alliance of Automobile Manufacturers filed a friend of the court brief to head off a potentially disastrous breach in the auto industry’s carefully constructed dam around the causes of unintended acceleration (UA). To wit, there are no electronic causes of unintended acceleration. This phenomenon, as the industry and the National Highway Traffic Safety Administration would have it, is solely caused by drivers hitting the wrong pedal and mechanical causes, such as pedal entrapment and bound Bowden cables. Electronic systems cannot have electronic malfunctions that can go undetected or cause UA, got that?
William T. Swigert, the Senior Judge of the Florida’s Fifth Judicial Circuit, however, had no respect for industry/government mythology. He set aside a jury verdict in favor of Ford Motor Company, after deciding that Ford’s victory in Stimpson v. Ford was won with “false and misleading” testimony and defrauded the federal government to boot, by claiming that it knew of no other cause of unintended acceleration than driver error and concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles. (See How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today)
This subterfuge occurred at a tender moment in the history of Unintended Acceleration – the late 1980s, when the agency was collecting information from industry about the causes of UA to weave into an unassailable scientific refutation known as the 1989 paper An Examination of Unintended Acceleration. Ford, which knew that interactions between the engine and cruise control electronics were contributing to sudden accelerations, elected to keep on the down-low its knowledge about how switches in the cruise control system were vulnerable at gear engagement to a current spike from electromagnetic interference that could bypass the control logic and induce the servo to pull the throttle wide open.
In the end, the authors of the UA study concluded, based – in part – on representations from manufacturers like Ford, that “EMI was not a contributing factor to sudden accelerations; that at least two simultaneous and detectable faults would have to occur for the cruise control electronics to cause a sudden acceleration; and that, in the absence of such detectable faults, the most ‘plausible explanation was driver pedal error.’” Judge William T. Swigert’s 51-page decision showed how Ford’s efforts limit its liability in civil UA lawsuits helped to shape NHTSA’s thinking about root causes of unintended acceleration as purely mechanical, even as more safety critical functions transitioned to electronic and software-based architectures.
Well, the Flat Earth Society cannot let this sort of dissent get out there, so the AAM called out the cavalry. The 26-page brief bristles with indignation that a mere trier of fact would look at the facts and conclude that Ford’s apparently deliberate omissions in the 1980s had an impact on what came next.
“By attacking the integrity and results of such investigations-especially, the investigations by the Federal agency with responsibility for regulating motor vehicle safety-and substituting the views of a single judge for the conclusions of expert agencies, the trial court’s decision exposes Alliance members to groundless litigation, threatens to create public anxiety that electromagnetic interference may cause vehicles to crash, and obscures the true causes of UA, potentially hindering solutions to UA.”
“If affirmed, the decision would allow a single judge to upend an unbroken train of scientific research that has consistently found no evidence that transient EMI has ever caused a UA incident, and that has found that UA incidents like Plaintiffs’ here-that is, UA accompanied by alleged loss of braking power-are the result of pedal misapplication or, rarely, detectable mechanical flaws.”
Yes, we wouldn’t want to derail that train. It takes a special sort of nerve, a kind of a murder-your-parents-and-plead-for-mercy-because-you-are-an-orphan variety of brass to make the arguments the AAM has made. You really have to read it.