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.

Markey Calls for NHTSA Transparency

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Documents released Wednesday by Massachusetts Senator Edward Markey show that Wisconsin State Police came up with the same two-and-two as NHTSA’s Special Crash Investigation team during its 2007 investigation of a 2005 Chevy Cobalt crash that led to two deaths.  Too bad neither NHTSA nor GM thought they added up to four.

On October 24, 2006, Megan Ungar-Kerns, 17, was at the wheel of her 2005 Cobalt, returning from a trip to Walmart on a rural Wisconsin highway, when her vehicle suddenly drifted off the roadway at about 60 mph. The Cobalt hit a raised driveway and sailed through the air about 60 feet, before striking a telephone pole and two trees. The trio was not wearing their seatbelts and no airbags deployed. Natasha Weigel, 18, and Amy Lynn Radebaker died of their injuries. Ungar-Kerns survived with permanent injuries.

A crash investigation report issued by the Wisconsin State Police in February, noted the October 2006 GM Technical Service Bulletin about inadvertent power loss due to the ignition switch moving from the run to accessory position. They determined no other cause of the crash:

“The two front seat airbags did not deploy. It appears that the ignition switch had somehow been turned from the run position to accessory prior to the collision with the trees,” the report stated.

Markey released it and a few other documents that GM submitted to NHTSA, as part of the Death Investigation (DI), during a transportation appropriations hearing held by the Committee on Commerce, Science and Transportation. DOT Secretary Anthony Foxx was the sole witness. The report didn’t add much new to the known narrative, but spotlighted legislation he has sponsored with Connecticut Senator Richard Blumenthal requiring manufacturers to submit more detailed information to NHTSA in the event of a fatal crash.

The Early Warning Reporting System Improvement Act “would require NHTSA make the information it receives from auto manufacturers publicly available in a searchable, user-friendly format so that consumers and independent safety experts can evaluate potential safety defects themselves,” according to a Markey news release. Continue reading

EWR: Elective Warning Reports – When Manufacturers Don’t Report Claims

Last week was a case of déjà vu all over again, to quote Mr. Yogi Berra, as NHTSA, and one of its “regulatory partners,” General Motors, faced their Congressional interlocutors, for the second performance of Safety Accountability Theater since 2000, when Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act. Fourteen years ago, it was the Ford Explorer/Firestone tire fiasco that set all those hands a-wringing. Five years ago, it was Toyota Unintended Acceleration. Now, its GM ignition switches.

These come-to-Jesus gatherings were supposed to be obviated by the creation of the Early Warning Reporting (EWR) system. A major component of the TREAD Act, EWR requires manufacturers to submit reams of death, injury, property damage, warranty and other data to the government on a quarterly basis. It’s an honor system that depends on truthful reporters.

More than a year ago, SRS discovered three death and injury claims that had not been reported through EWR, and sought out NHTSA to confirm this apparent lapse and determine NHTSA’s policy toward manufacturers that did not submit reportable injury claims. As is usually the case when we try to help our favorite federal agency, SRS got crickets. And, as is usually the case in that circumstance, we submitted a Freedom of Information Act request to find out what they did about the information we gave them, and the agency’s policy for ensuring that reportable claims were getting into the system.

As is usually the case, NHTSA said that it had practically no information to share. As is usually the case, SRS called B.S. filed an appeal, and when that failed, took it to the U.S. District Court. And, as is usually the case, NHTSA found more responsive materials.

Last week, U.S. District Court Judge signed a Settlement Agreement between SRS and the DOT in which the government paid our legal fees. As is usually the case. Continue reading

Safety Research & Strategies Sues U.S. DOT in (Another) FOIA Dispute

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Safety Research & Strategies, an automobile and product safety research and consulting firm, today filed its fourth Freedom of Information lawsuit against the U.S. Department of Transportation, alleging that it has improperly held documents regarding Early Warning Reports.

The lawsuit emanates from two instances in which manufacturers allegedly did not report serious injury claims against them to NHTSA, as required under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act’s Early Warning Reports (EWR) provision. One crash occurred 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 severe injuries to two young children.

“EWR data is supposed to alert the agency investigators to defect trends,” says SRS President Sean E. Kane. “But if manufacturers don’t report complete and accurate information, the system doesn’t work.”

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, however, showed up in a search of the manufacturer’s quarterly reports to NHTSA.

In March, SRS informed the director of the Office of Defects Investigation Frank Borris, and NHTSA’s Senior Associate Administrator for Safety, Daniel C. Smith, of these apparent omissions. The memo requested confirmation that these claims should have been submitted to the agency via a quarterly EWR submission, and “what actions the agency plans to take.” After receiving no reply, SRS submitted, in May, a Freedom of Information Act request, seeking any documentation that NHTSA followed up with Harmony, Nankang or Tireco, as well, as the agency’s policies and procedures around EWR, and a manufacturer’s failure to submit a reportable incident.   Continue reading

Further Tinkering to EWR Unlikely to Make it More Useful

The National Highway Traffic Safety Administration is proposing amendments to the Early Warning Reporting system, ostensibly to sharpen it as a tool in the Office of Defects Investigation’s back pocket, but outside researchers who regularly parse EWR data say that the proposal misses huge opportunities to actually make the system better. 

In 2000, Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act in the wake of the Ford Explorer/Firestone tire fiasco. The Early Warning Reporting system, a major component of the legislation, requires manufacturers to submit reams of death, injury, property damage and warranty data to the government on a quarterly basis. The information was supposed to help government investigators identify defect trends before they become full-blown debacles.

And yet, nearly a decade later, EWR did nothing to prevent the Toyota Unintended Acceleration disaster that has resulted in deaths, injuries, property damage crashes, 11 recalls related to floor mat entrapment, trim panel interference and sticking accelerator pedals, the alleged causes of the unintended acceleration complaints. So, you might expect that the agency, which could never have seen that one coming – what with the numerous consumer petitions pleading for answers, serial investigations into the problem, and recalls that never seem to make the complaints go away – would adjust its EWR reporting categories accordingly. Continue reading

Toyota: Honesty is More Than Just a Word

When Toyota starts talking about honesty – as they did, while paying a $16.4 million fine for violating the recall regulations – we start patting down the data. An interesting snippet floated by yesterday. As our readers know, manufacturers are required to file Early Warning Reports every quarter – information about legal claims, warranty data, production numbers, deaths and injuries – to help NHTSA spot emerging defect trends.

This regulation, enacted as part of the Transportation Recall Enhancement Accountability and Documentation Act with great speed and good intentions, has had its share of problems. There was the four-year battle over what information would be public. (The agency and safety advocates envisioned a largely public data system; the manufacturers had an entirely different idea. Guess who won?). Then there has been the suggestion that EWR has not actually been useful as a statistical canary in a coalmine. Now we’re going to have to raise a few questions about coding. Continue reading