August 5, 2013
Well, the agency’s done it again. No longer can reporters call a $17.3 million civil penalty against a manufacturer the “largest fine in agency history.” Nope, now it’s the new normal. This time it was Ford who got rapped with NHTSA’s multi-million dollar automaker swatter, over failing to recall 2001-2004 Ford Escape and Mazda Tribute vehicles to correct an earlier recall repair to the accelerator cable that actually exacerbated the original problem.
Did you follow that? If, not, don’t worry. We’re gonna lay it out in all of its glorious detail.
Like just about everything NHTSA does these days, the path to the fine follows a long roundabout route that reaches its crescendo in a high-profile death. In this case it was Saige Bloom, the 17-year-old driver of a 2002 Escape who died in an unintended acceleration crash in Payson, Arizona on January 27, 2012. Bloom was driving her new used car home, with her mother following in another car, after they purchased the Escape. Bloom lost control of the vehicle, which rolled over. Bloom died of her injuries in the hospital.
Clarence Ditlow, executive director of the Center for Auto Safety, which petitioned the agency to open a Recall Query after Bloom’s death, says that the monetary penalty didn’t go far enough.
“To me, if there was ever a case for a criminal penalty this was it. It meets the requirements of the TREAD act – there was a death,” Ditlow said “In fact, there have been at least three deaths. Who knows how many there are, in reality? There’s an 8-year gap between the first recall and the fine.”
But, as these things tend to go, there won’t be anything as shocking as a criminal prosecution, just a blip on the bottom line. Ford denied any responsibility in the settlement agreement. To quote:
“WHEREAS, Ford denies that it has violated the Safety Act or its implementing regulations.
WHEREAS, it is the mutual desire of NHTSA and Ford to administratively resolve the civil penalties relating to the timeliness of Ford ‘s actions leading to Recall 12V-353 through a binding agreement in order to avoid a protracted dispute and possible litigation.”
Indeed. A protracted dispute – particularly one in a court of law with filed documents – really wasn’t going to make either entity look good. Let’s start with Ford.
The Cruise Control Cable Defect
On December 6, 2004, Ford filed two Part 573 Defect and Non-Compliance Reports (recalls 04V574 and 04V583 for Ford and Mazda vehicles, respectively) that it was recalling approximately 591,245 2002-2004 Ford Escape and Mazda Tribute vehicles because “the accelerator cable inner liner may migrate out of the conduit at the dash panel end fitting and may come in contact with the accelerator pedal assembly. Under certain circumstances the pedal may not return to the fully released position,” Ford said.
The problem surfaced in March 2004, when the company’s engineers notified the Ford Critical Concern Review Group of reports of alleged elevated engine idle speed on Ford Escape vehicles built with 3.0L V6 engines.
Ford said that an internal analysis conducted in June 2004 on 25 warranty-returned accelerator cables found 12 cables that showed “some level of inner liner migration out of the conduit at the dash panel fitting.” While the cable migration didn’t cause the high idle, the analysis found that “if the liner continues to migrate sufficiently, it may contact the pedal assembly and prevent the throttle from returning to idle.”
The condition specifically affected 2002- 2004 model year Ford Escape vehicles with 3.0L V6 engines built at the Kansas City and Ohio Assembly Plants from May 30, 2001 through January 23, 2004.
In its defect report, Ford said “The accelerator cable inner liner may, over time, migrate out of the conduit at the dash panel fitting during vehicle operation. The liner may migrate to the point that it contacts the accelerator pedal arm (part of the accelerator pedal assembly). Under these conditions the liner may prevent the pedal from fully returning, which may not allow the throttle body to fully return to the “idle” position. Typically the condition results in a progressive increase in the “idle” speed if liner migration continues over time, but may cause a more sudden increase if a greater portion of the cable moves at one time.”
In September 2004, Ford inspected an unspecified number of customer vehicles and found other cables “with minimal amounts of liner migration.” These customers had not complained about elevated engine idle speeds. Ford said that it could not pinpoint any design or manufacturing process changes at the supplier level that would account for the condition.
The repair consisted of removing the old accelerator cable and replacing it with a new one.
But the repair, in some cases, increased the odds that the throttle could become stuck in the wide open condition. On October 6, 2005, Ford sent a technical service bulletin to its dealers regarding the repair procedures for 2004 Escape and Tribute recalls. The technical service bulletin included updated illustrations and a warning that a failure to follow the correct repair procedures could damage the cruise control cable, by cracking or knocking out of alignment the tubular guide at the end nearest to the throttle body cam. If the guide was compromised, the cruise control cable would no longer be guided to move in parallel with the accelerator cable. Instead, the cruise control cable could become kinked, and in an open throttle situation become jammed against the engine cover.
The Technical Service Bulletin warned dealers that federal law required them to do a new repair, consisting of replacing the accelerator cable with a newly designed one, released in December 2004, to all vehicles in their inventory, and all recently delivered vehicles.
By that time, according to its first quarterly report to NHTSA’s Recall Management Division, Ford had repaired or accounted for over half of the vehicle population, or about 317,214 vehicles. Ford actually filed the TSB with NHTSA’s Recall Management Division, attaching at the back, the original January 2005 letter to consumers, informing them of the need for the first repair. If you weren’t paying attention, you might think that Ford was re-notifying its customers that the original repair was in need of correction. It wasn’t.
If you were an Escape owner who had bought your vehicle a while ago, Ford didn’t think you needed to know that the recall repair could make your vehicle worse. It took a “let’s wait and see” approach.
What Ford Saw: Fatalities
Marta Baier of St. Charles, Missouri, died on August 8th 2005. According to her 16-year-old son who was a passenger in her 2003 Ford Escape XLT, his mom was driving normally, when the vehicle suddenly accelerated. Baier noted that the accelerator was stuck, and told her son that she was going to try to slow the vehicle down and he should jump from it. Her son jumped out of the car and was unharmed. Baeir, however, was severely injured when she tried to do the same. The vehicle continued down the road, before it collided with another vehicle. The engine was still revving.
In December 2005, Mary Josephine DelVescovo, 43, of Lancaster, PA, bought a one-year-old 2004 Ford Escape from the Murphy Ford Company. The dealership had performed the first recall repair, in December 2005, just before its sale to Ms. DelVescovo. On July 19, 2007, DelVescovo was driving in Lower Merion Township, when the Escape’s throttle system became stuck open. She managed to avoid some other cars, but ended up swerving, flipping on the driver’s side, only coming to a stop after sliding into a school bus. DelVescovo was extricated and transported to University of Pennsylvania Hospital where she ultimately succumbed to her injuries on August 8, 2007.
Bill Williams, a forensic mechanic based in Georgetown, South Carolina who testifies for plaintiffs, found the same defective condition in both of these fatal incidents. Both vehicles had had the original recall repair, but not the second one.
Bloom’s Escape had received the recall remedy in January 2005, well before Ford notified its dealers of the updated repair procedure. But her vehicle never got that recall repair inspected or fixed.
Williams said that it was easy to destroy evidence of the cruise control cable hang-up, by simply removing the engine cover.But he dismisses Ford’s contention that there was no way for it to know that this problem was widespread.
“There were a number of incidents identified through documents that showed that the problem was commonplace,” he says. “They knew it was happening. The TSB was a joke.”
Both cases settled. Attorney Jaime Jackson of Lancaster, PA recalls: “Ford was anxious to settle the case, I was anxious to try it.”
CAS Steps In
On July 8, 2012, the Center for Auto Safety (CAS) petitioned the National Highway Traffic Safety Administration to open a defect investigation into the efficacy of the 2004 recalls. NHTSA denied the petition because, on July 17, it had opened a Preliminary Evaluation on the 2001-2004 models that would cover the issues CAS raised. Ford followed this renewed attention to the issue on July 25 with a recall for the four model years under investigation to repair an “inadequate clearance between the engine cover and the speed control cable connector, which could result in a stuck throttle.”
In defending itself in the NHTSA defect investigation, Ford argued: “The condition results from damage induced by improper service. Reports of improper service do not initially indicate a potential safety defect in the vehicle. In contrast, safety recall 04S25 identified a defective condition inherent in certain accelerator cables. Further, a kinked or damaged speed control cable does not typically pose a safety risk. The initial damage does not necessarily demonstrate the potential for engine cover interference. Because the development of the potential for the interference condition may be progressive over years in service, reports of a damaged or kinked speed control cable do not initially indicate an obvious safety risk. Finally, as discussed above, reports of acceleration related issues are ubiquitous and generally do not provide technical information to allow for the identification of a cause.”
Where to begin? If “the condition results from damage induced by improper service,” then why didn’t Ford notify all of those customers who might have had an improper first repair to return to the dealership for an inspection? As for no identification of a cause, see Bloom, Baier, and Delvesco. Ford already knew about the problem – that’s why they sent out the TSB. Ford knew the possibility of extreme consequences at least as far back as 2007, when it got sued.
The agency closed the Preliminary Evaluation in February 2013, after Ford announced a second recall to perform the repair it should have done in October 2006. The new recall population was 423,624 2001-2004 Ford Escape vehicles and 217, 500 2001-2008 Mazda Tribute vehicles for “inadequate clearance between the engine cover and the speed control cable, which could allow the throttle to stick when the accelerator pedal is fully or almost-fully depressed, increasing the risk of an accident.”
In its chronology of significant events, Ford stated that the recall was initiated by the Bloom incident. After inspecting the vehicle, Ford stated, it initiated an internal engineering review and data analysis. Based on this, Ford’s Field Review Committee approved the recall on July 23, 2012.
NHTSA’s Not Much Better
But for the death of a 17-year-old girl driving home her first car, with her mother in tow to bear witness to her daughter’s fatal crash and the CAS petition, what would NHTSA have done? Where was the Recall Management Division? Didn’t anyone there notice that nearly all of the vehicles had received the first recall repair by the time of the TSB? Didn’t anyone notice that the letter to customers was old, and did not address this new information? And what about the Early Warning Reports? What does this division exactly do, other than accept and file manufacturers’ paperwork?
The agency has no set procedures for determining if a manufacturer has adequately met its recall obligations. In June 2011, the agency told the Government Accounting Office that “they evaluate the effectiveness of a recall campaign by comparing a specific recall campaign’s progress to similar campaigns based on factors such as the age of vehicles recalled and the number of vehicles recalled.” The agency said that “monitoring recalls on a campaign-by-campaign basis provides them with the flexibility necessary to capture the unique aspects of each recall campaign and that by focusing on communication and discussion with manufacturers, the agency can develop solutions to improve completion rates when a campaign is achieving a completion rate that is below its expectation.”
In practice, the agency has no set procedures for determining if a manufacturer has adequately met its recall obligations. NHTSA does not consistently look at the data to monitor in the short term whether deadly defects are being fixed – which is the purpose of a recall.
Don’t expect to learn much about the “investigation” into the adequacy of Ford’s recall because there was no official investigation (i.e., Timeliness Query) assigned. Instead the agency’s four page agreement with Ford was simply tacked on the recall file. Even with an official investigation opened NHTSA isn’t forthright about how it reaches these civil penalty agreements. For example, the agency has not made public any documents related to the Timeliness Query for the defective steering relay rod recall involving nearly a million Toyota trucks (which was the result of findings in civil litigation in the death of an 18-year old). In December 2010 the investigation concluded with Toyota agreeing to pay $16.050 million fine. Because the investigation files, which are routinely posted on the NHTSA website, were not available, SRS submitted a FOIA for these documents in order to write an article about the reasons for the fine. However, the agency responded that their release would cost $4,500.
So, how does one fine NHTSA for its failure to act in a transparent and timely manner?
More on NHTSA transparency: What Doesn’t NHTSA Want You to Know About Auto Safety?