Unfortunate Chapter Continues: Toyota Bounced for $11 Million in UA Case

Toyota’s runaway success in blaming drivers for its defective vehicles, hit an $11 million pothole yesterday, after a Minnesota federal jury found that the automaker was 60 percent responsible for an Unintended Acceleration (UA) crash that killed three and severely injured two.

Attorney Robert C. Hilliard, who represented plaintiffs Koua Fong Lee, the driver, and the family in the vehicle that was struck, says it’s the first jury verdict against Toyota in a UA case involving a mechanical defect. The automaker made no offer to settle the case prior to the January trial.

On June 10, 2006, Lee was exiting a Minnesota Highway 94 in a 1996 Camry when his accelerator became stuck in the wide open position. Lee was driving his pregnant wife and children home from services when, at 75 miles per hour, he plowed into the rear of an Oldsmobile Ciera that was stopped at an intersection. Fong alleged that he pushed on the brakes, but they failed to stop the Camry. Driver Javis Trice-Adams Sr., and his 9-year-old son were killed, his father, Quincy Adams and Trice-Adams’ daughter Jassmine Adams were injured. Trice-Adams’ niece Devyn Bolton, 6, was paralyzed and died in October 2007. 

Lee was convicted of vehicular manslaughter in 2008, and served two-and-a-half years of an eight-year sentence. Then, in 2009, the Toyota Unintended Acceleration crisis began to build doubts about the certainty of driver error in the crash. In August 2010, Ramsey County Judge Joanne Smith ordered a new trial. The prosecutor dropped the charges and declined to retry the case. Lee was released from prison.

Hilliard argued that Lee and the Adams family were victims of a design defect in which the plastic pulleys in the cruise control assembly overheat and bind the accelerator cable in the open position. Each time the accelerator was tapped, the throttle would open wider. Lee testified that he tried to bring the car to a stop, but the brakes could not overcome the open throttle. In previous testing the National Highway Traffic Safety Administration showed that vacuum brakes lose their effectiveness if pumped continually. Toyota argued that Lee mistakenly floored the accelerator for six seconds before the crash.

Hilliard attacked that notion in his closing arguments, with an exemplar pedal and a timer.

“Their theory was that Koua Fong Lee, without any panic situation, for some unexplained reason, after driving normally for 30 minutes, suddenly floored it for six full seconds as he is approaching a stop light with a bunch of cars in front of him,” Hilliard said. “I told the jury, for you to believe this, you have to believe that at the top of that hill — I floored it and pushed timer. Six seconds seems like an eternity.”

Toyota had attempted to counter Hilliard’s defect theory with the testimony of a Toyota engineer in Japan who claimed that the company’s “robust protocols” included days-long heat testing at 280 degrees. Then shortly before trial, Toyota filed a declaration from that engineer stating that the company actually did no such testing.

“It was the most amazing declaration I’ve ever seen,” Hilliard recalled, “where he was so proud of that test that it turns out they never did.”

Hilliard also bolstered his case with testimony from other who experienced a UA event, such as a doctor and a Black Hawk military helicopter pilot, who was flown in from Kuwait to testify.

The $10.94 million verdict was divided among the crash victims. Lee’s award was reduced by 40 percent for contributory negligence, but Hilliard says that he will file a post-verdict motion to challenge it — if Toyota’s defective design was the direct cause of the crash, then Lee should receive his full share. 

Meanwhile, Toyota has settled more than 250 injury and death claims under its Intensive Settlement Program in the multi-district litigation involving UA in Toyota vehicles equipped with electronic throttle controls, says West Virginia attorney Hike Heiskell, who represents several plaintiffs with UA claims. 

“They have settled a very high percentage of pending cases. One of the interesting things is how many new incidents are being reported after Toyota entered into the deferred prosecution agreement,” he says of Toyota’s March agreement to plead guilty to one charge of wire fraud and pay a $1.2 billion fine.  

While he sees no applicability of the Lee verdict to cases involving electronic throttles,“still — it’s a system that took control of throttle and produced tragic consequences,” Heiskell says. “It pierces the Toyota defense that this doesn’t happen in the real world. Bookout was a great breakthrough, and this case is a great breakthrough, in letting the public see that it does happen in the real world.”

Toyota: A Series of Unfortunate Chapters

On a sunny June day, Kathy Ruginis, of Bristol, RI, had a low-speed Unintended Acceleration event in a 2010 Corolla, as she attempted to park. The car had already been remedied under the floor mat entrapment and sticky accelerator recalls, and presumably was as safe as a babe in its mother’s arms. Ruginis was making a slow, right hand turn to ease into the parking space; her foot was on the brake, when the vehicle surged forward and crashed into an unoccupied parked Jeep in front of it. Fortunately, only the Toyota and the Jeep were injured.

Kathy’s husband Bob, an electrical engineer with 35 years’ experience in embedded software and hardware design, wanted an explanation. And Toyota had one. After a June 24 physical inspection, a test drive and a download of the Corolla’s Event Data Recorder (which Toyota requested be performed), Toyota sent Bob and Kathy a letter, which basically said: we jiggled your pedal, we wiggled your floor mat, and we drove your vehicle for an exhaustive 16 miles. There’s nothing wrong with your car. So sorry. Goodbye.

Missing from that July 9 ding letter? Any mention of the EDR download, which showed pretty clearly that something was definitely wrong. According to the five-second pre-crash snapshot, just before the Corolla struck the Jeep, the brake was on, the accelerator pedal was untouched, but the speed and the engine RPMs doubled just before the crash. Get that? Brake on. Accelerator pedal off. Speed doubles.

Today, the Bristol Rhode Island couple filed a defect petition to the National Highway Traffic Safety Administration asking it to investigate low-speed surges in Toyota Corollas from the 2006-2011 platform. They also sent a follow-up a letter to the Independent Monitor, a position created by the March Deferred Prosecution Agreement that closed the criminal investigation into Toyota’s lies about its Unintended Acceleration problems. The Ruginises have requested that attorney David Kelley investigate whether Toyota has already begun to violate the terms of the agreement, which deferred prosecution for three years, in exchange for Toyota pleading guilty to one criminal count of wire fraud. The settlement, struck after a four-year probe, allows Toyota to merely pay its way out of the mess, as long as it stops lying to everyone about the safety of their vehicles.

Apparently, some habits are hard to quit.

In his letter to the Special Monitor, Ruginis pointed out that Toyota could not have concluded that nothing was wrong with the Corolla and that there were glaring discrepancies in what the company was saying privately to him, but publicly elsewhere. Here’s the wind-up:

  • "Toyota’s physical inspection showed that our unintended acceleration crash was not caused by floor mat entrapment or a sticking accelerator pedal; therefore Toyota’s solutions to the unintended acceleration problem by launching the sticky pedal and floor mat entrapment recalls have not been “effective and durable.”
  • Toyota has not identified the root cause of our crash; therefore the company cannot conclude that “the incident was not the result of any type of manufacturing or design defect.”
  • A vehicle that accelerates suddenly, without the driver’s input is an unsafe vehicle; therefore, in our case, Toyota did not stand behind “the safety and quality” of this vehicle.
  • In denying our claim, Toyota misled us by specifically excluding the one important piece of evidence that was unfavorable to the company’s position, but one the company has publicly proclaimed its great faith in. Toyota cherry-picked the data to claim to conclude there was no problem.”

And here’s the pitch:

“Concealing a safety issue and making misleading statements to an individual customer may not rise to the same level of chicanery as lying to a Congressional inquiry, or NHTSA investigators, or the Department of Justice. But, I have done a great deal of reading about the history of this issue, and, at its essence, what Toyota did to me is no different than what it did to thousands of other customers, and to those governmental entities over a span of over a decade – ignoring problematic data to make it look as though there is no unintended acceleration issue, making definitive statements about root causes without adequate investigation; making public promises of integrity while privately practicing deceit; and employing every means at its disposal to limit its liability of what appears to be a difficult-to-resolve technical issue, at the expense of the customer’s safety. In other words, I see that nothing has changed.”

Toyota Misery Has Plenty of Company

On June 24, as a Toyota engineer was combing the Ruginis Corolla allegedly looking for the root cause of the crash, The Safety Institute, a non-profit research and advocacy organization, released its first quarterly Vehicle Watch List on emerging – or in some cases, continuing — safety defect trends by vehicle make, model year, and alleged defect. Of the 15 vehicles on the list, Toyota Camry vehicles with speed control complaints occupied six positions – more than a third. The six model years, occupying the 7th, 8th,9th, 11th, 12th, and 14th positions on the list are, respectively, MY2007, MY2009, MY2005, MY2004, MY2008, and MY2014.

The Watch List uses publicly available data such as NHTSA consumer complaints, and manufacturer reported Early Warning Reports on deaths and injuries and the Fatality Analysis Reporting System (FARS),  and employs “peer-reviewed analytic methods to identify emerging motor vehicle safety defects that merit additional engineering and statistical review,” according to a TSI press release.

For example, recently, Boyd Martin, a mechanical engineer based in Braintree, Mass., reported two low-speed surge events in his wife’s 2011 Camry that resulted in property damage crashes. His wife is a cautious driver, Boyd said, who had only put 10,000 miles on the car. Both incidents took place in the parking lot of his company. The first occurred on July 9th; the second occurred on July 23. In both cases, Sylvia Martin was slowly maneuvering into a space, when the Camry surged forward “at full throttle,” hitting a stockade fence. After the second event, the Camry was towed to the body shop for repair. According to Sylvia Martin’s written account: “A short time later Ray called my office and told my husband that as the truck driver was taking the Camry off the flat-bed truck the driver started the engine to move the car to parking lot. The car engine raced and bolted forward. Fortunately he was able to push hard enough on the brakes to stop the car before there was further damage.”

“About an hour after he gave us that call, that’s when we started to look into it on the Internet, and began to realize that we were not alone.”

Boyd Martin says that Toyota has inspected the vehicle, but has made no conclusions yet; he is still waiting for Toyota to release the results of his EDR download. He wasn’t expecting much.

While the Corolla did not make the Watch List’s top 15, Ruginis identified plenty of similar complaints in the NHTSA data – low speed surges, many of which occurred when the driver was braking and many that caused crashes. In his defect petition to NHTSA, Ruginis pointed out that the agency’s so-called most thorough examination ever, identified low-speed surges as the most prominent UA scenario, yet one which it had never investigated. From the agency’s 2011 Toyota UA report:

Further review of the stationary and low speed incidents (combined) found that parking lot entry and exit accounted for the largest share of these incidents (40% of VOQs 64% of crashes. Many of the parking maneuver narratives reported incidents characterized by high engine power either after the driver applied the brake or immediately after shifting the transmission.”

Ruginis’s own review of NHTSA complaints by owners of 2006-2010 Toyota Corollas found 163 reports in which the driver experienced a surge at low speed or no speed; 99 drivers mentioned that the brakes were already depressed when the surge occurred or the surge occurred when the brakes were depressed; 83 incidents resulted in crashes.

The NHTSA complaint data mirrors what’s happening in the insurance subrogation field, says Dennis Lyons, of SD Lyons Automotive Forensics in Seekonk, Massachusetts. Lyons, who regularly conducts forensic inspections, says that his inspectors noticed an uptick in Toyota UA crash cases “well before it hit the front page,” immediately after the company introduced its drive-by-wire electronic throttle control system.

“The common denominator was parking or low-speed maneuvers — either pulling into the coffee shop or through the coffee shop,” he says. Lyons estimated that Toyota vehicles accounted for 36 percent of these types of cases that pass through his business; the next closest manufacturer accounted for 8 percent of those cases. “It’s my opinion that there is something definitely wrong, something abnormal about the frequency of Toyota UA issues compared to other manufacturers.”

Toyota EDR: Friend or Foe?

Normally, in all things Unintended Acceleration, the BS flows from Toyota to NHTSA, so everyone’s got their story straight. This time around, the agency and its “regulatory partner” apparently didn’t have enough time to consult.

Toyota responded to one reporter’s questions about the significance of the EDR data with:

“This data supports our conclusion that this was not a sudden unintended acceleration event but a collision that resulted from late braking, which is not unique to drivers of Toyota vehicles.”

NHTSA looked at the same data and said that because the various data points are not synchronized, the driver could have been touching the accelerator pedal in the millisecond between the one-second snapshots of data – this was most likely a case of dual pedal application.

So it’s definitely a case of late braking – so why, if the driver was braking, didn’t the vehicle speed drop? Why did it double?

Or, it’s definitely a case of dual pedal application – so why did the EDR show that nothing ever touched the accelerator pedal?

The Safety Record showed the readout to a prominent EDR expert who laughed at both explanations. Toyota has never been able to duplicate a UA during a test drive – it’s really hard to do. So, that portion of the inspection is pretty much for show, he said. As for the EDR data: “The vehicle was basically at idle and the ‘late’ braking would not have resulted in a speed surge.” He was similarly unimpressed with NHTSA’s fancy footwork. While technically correct, he allowed, “the sheer probability of that happening and not being recorded in either the current, prior or later snapshot is so remote that it really is a cop out on their part.”

Bob Ruginis said he was “flabbergasted,” when a Toyota representative told him that the EDR readout was ignored in determining that the incident was not the result of a manufacturing or design defect. “It was not logical to me,” he said. “My thoughts were: they’re not looking at it because it doesn’t show what they want it to show. If they looked at it and came up with an idea that supported them they would have put it in.” Toyota’s current explanation, Ruginis speculated, seemed to be the result of a meeting where “they sat around and tried to figure out, okay what can we say? Of course, it’s all conjecture – which is what they do.”

This the-EDR-says-whatever-we-want-it-to-say is of a piece with the history of contradictory positions the pair have taken on the value of Event Data Recorder downloads.

In February 2010, Toyota spokesman Mike Michels told The Wall Street Journal: The device is a prototype and "is still experimental," said Toyota spokesman Mike Michels. "We have found anomalies in the data that are part of our development of the system. It is our position that it is not reliable for accident reconstruction."

In July 2010, George Person, a former head of NHTSA’s Recall (Mis-) Management Division, leaked to The Wall Street Journal the results of a preliminary report on Toyota EDR data, which purported to show that 60 percent of the incidents were the result of driver error. The data was rife with contradictions and inconsistencies; the sample incidents were assembled by convenience, rather than any scientific method. No seasoned crash investigator could conclude anything from these data – certainly not that Toyota electronics are exonerated.  Yet, the leak was framed as another strike against driver’s accounts of their own experiences: “The U.S. Department of Transportation has analyzed dozens of data recorders from Toyota Motor Corp. vehicles involved in accidents blamed on sudden acceleration and found that the throttles were wide open and the brakes weren't engaged at the time of the crash, people familiar with the findings said.”

By 2012, Toyota was publishing technical papers in SAE International, claiming:

For the three vehicle models tested, the Toyota EDR pre-crash data and other parameters were accurate when compared with the HS-CAN data or observations. Based on the testing and analysis performed for this study, the Bosch CDR readout tool for Toyota vehicles can increase the understanding of vehicle crashes and help advance safety research and investigations.

Toyota Quietly Settling Cases

In the post-Bookout verdict era, Toyota has been quietly settling death and injury claims alleging that an electronic defect caused the unintended acceleration crash. The Bookout case, our readers will recall, emanated from a September 2007 UA event that caused a fatal crash. Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma, when she lost throttle control of her 2005 Camry. When foot-braking would not stop her speeding sedan, she threw the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp and across the road at the bottom, crashing into an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

In October, Toyota hastily settled the case –  hours after an Oklahoma jury determined that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs — but before the jury could determine punitive damages. The jury was persuaded by the testimony of two plaintiff’s experts in software design and the design process, Michael Barr and Jerome Koopman, who reviewed Toyota’s software engineering process and the source code for the 2005 Toyota Camry, and testified that the system was defective and dangerous, riddled with bugs and gaps in its failsafes that led to the root cause of the crash.

These confidential settlements are reportedly buttoned up to an unusual degree, attorneys say; they can’t breathe a word of their existences.

So, the government got paid, the lawyers got paid, the victims with the most egregious cases are getting paid. The only ones left hanging are the Toyota owners stuck with an unsafe vehicle that hasn’t ruined somebody’s life – yet.

Bob Ruginis has been designing software and hardware for 35 years, starting in 1977, at Chrysler, when microprocessors were a dazzling new automotive technology. He went on to work with embedded systems in applications ranging from military to toys, and teaching other engineers how to use them. He says he’s disturbed to learn that the automotive sector doesn’t use structured programming, relying instead on haphazard programming practices and multiple patches.

Ruginis was also a loyal Toyota fan, who spent his driving career buying new Toyotas and driving them until they died. But after fewer than 62,000 miles this Toyota – and the entire company – is dead to the Ruginis family.

Bob and Kathy Ruginis are still hoping that Toyota will do the right thing and compensate them for a vehicle they are afraid to drive, but cannot afford to park, and do not want to foist on some unsuspecting future owner. The Safety Record has heard this story many times, from drivers who are anguished by this moral dilemma.

“I want to get rid of it, but I don’t want to sell it to someone who will end up having a crash and get hurt because the car is unsafe,” he says. Bob and Kathy Ruginis approached NHTSA and Kelley because, Bob says, “I feel Toyota is hiding something and I don’t want to hear about people getting hurt or killed and not having done anything about it. Having some reasoning and some evidence to show something is happening — if we hadn’t sent those letters, it would really affect us. We have consciences.”

Toyota’s Gone Fishin’

In December 2009, as Toyota faced increasing scrutiny from Congress and the National Highway Traffic Safety Administration in the wake of the horrific unintended acceleration crash in that killed California Highway Patrolman Mark Saylor, his wife, daughter and brother-in-law, the automaker’s image-makers were prepared to go on the offensive. According to an April 2013 article in Corporate Counsel, a Toyota public relations staffer named Masami Doi wrote this email:
There are at most around 10 people who are the sources of negative tone communications. If they can be suppressed, I think we will be able to manage it somehow. Like you said, let’s go with an intention of destroying each individual person’s ability to oppose us, one by one. (To do or not to do is a separate question.)
We do not know who exactly suggested destroying each individual, but we know they tried. We know that the list at least doubled. And we know that Toyota is using Betsy Benjaminson, a private translator-turned-whistleblower who released sensitive internal Toyota documents to Corporate Counsel magazine and Iowa Senator Charles Grassley during the Toyota Unintended Acceleration crisis, as a battering ram to get at more of them.
On August 20, Benjaminson is scheduled to be deposed in the Los Angeles offices of Skadden, Arps, Slate, Meagher & Flom LLP and to produce a slew of documents, including all communications with 20 people who have challenged Toyota’s narrative that there were no possible electronic causes of the unintended acceleration. They range from SRS president Sean Kane, to British automotive electronics experts Keith Armstrong and Antony Anderson, NASA scientists Norman Helmhold and Henning Leidecker to journalist Junko Yoshida, to Michael Barr, an embedded software specialist whose withering assessment of the safety, testability, and functionality of Toyota’s software resulted in the first jury verdict against Toyota in a UA case.
Ostensibly, Toyota is searching for the link between Benjaminson and a presentation Barr made to that jury, entitled “2005 Camry L4 Software Analysis.” While a public version, with redacted slides of some sub-routines is available, Benjaminson has posted the presentation in its native format on her website, and that has provided the opening for Toyota to go fishing for retaliatory evidence against its critics. (A legal defense fund has been set up for Benjaminson https://www.indiegogo.com/projects/betsy-benjaminson-legal-defense-fund.) This latest legal move is of a piece with Toyota’s aggressive stance toward entities that have dared to challenge the automaker’s public relations.    
Like some corporate version of Agatha Christie’s Ten Little Indians, Toyota first tried to take out Kane and Southern Illinois University automotive electronics professor David Gilbert. SRS had begun reporting on the problem in 2009, before the Saylor crash, produced several reports,
based on public documents, on the roots of the crisis. Kane also testified before the House Committee on Energy and Commerce and the National Academies of Science that the record didn’t support Toyota’s assertion that electronics were not to blame for some of the complaints.
Gilbert got in Toyota’s crosshairs when he conducted a preliminary study for Safety Research & Strategies that showed that a short circuit in the Accelerator Pedal Position Sensor could cause Toyota’s Electronic Throttle Control to go to a wide-open condition, without setting a Diagnostic
Trouble Code. Gilbert also presented his findings to Congress.
Toyota hired the Benenson Strategy Group, a prominent public relations consultant, to develop the best lines of attack against the two. And they tested the messaging, via an online poll that asked the survey takers to judge Kane’s and Gilbert’s credibility.
Toyota criticized Gilbert’s work in a web-based press conference. Toyota, which had donated vehicles, provided internships and networking opportunities for SIU’s Automotive Technology students, sent its attorneys to Southern Illinois University Carbondale to discuss their concerns with university officials.  Terry Martin, manager of customer quality at Toyota and Neil Swartz, an SIUC alumnus and corporate manager for distribution in Toyota’s North American Parts division, resigned from the department’s advisory board. Mark Thompson, an SIU alum and a Toyota Motor Sales employee, e-mailed the school’s chancellor to suggest that Gilbert be fired and that Toyota might pull its support from the program.
Toyota unleashed the Cracken on James Sikes, a California Prius owner, who had the audacity to experience a UA on a San Diego highway in March 2010 as Toyota was conducting its press conference trashing Gilbert’s work. Sykes, a 61-year-old Prius owner alleged that his vehicle accelerated suddenly and would not respond to hard braking. His struggles to regain control of his vehicle were observed by a California Highway Patrol officer, who was called to the scene, and recorded on a 911 tape. The police report noted that the Prius’ brakes were burnt out and that an examination of Sykes’ vital signs by emergency medical personnel immediately after the event showed he had very high blood pressure and heart rate. The police did not charge Sykes. Toyota held another press conference to announce that a preliminary examination showed that Sykes had depressed the brakes 250 times. Toyota officials suggested, without saying so, that Sikes faked the event. Meanwhile, news outlets also reported many unflattering details of Sykes personal life, alerted by “anonymous tipsters.”  His lengthy 911 call is a sound portrait of a man in extreme stress, and if he was perpetrating a hoax, he should consider a career in acting.
Sikes, an easy target, faded from public view; Gilbert was not fired; SRS continued to report on Toyota UA, but in large measure, Toyota was successful in fending off challenges to its version of reality. NHTSA, itself compromised by serial fruitless investigation into the problem, opted for a political solution by engaging the NASA Engineering Safety Center to validate its technical failures and make the whole thing go away. Various ill-informed commentators amplified the message. Toyota won some civil cases and settled the ones with fact patterns that would be hard to defend before a jury.
Then came the Bookout verdict and it was suddenly game over. In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry, when it experienced an unintended acceleration. Bookout tried to stop her car by pulling the parking brake, leaving lengthy skid marks. Her Camry continued to rocket down the ramp, stopping only after its nose was embedded in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.
Toyota, perhaps, thought it would play the confused old lady card at trial. But last October, an Oklahoma jury heard testimony from Barr, who spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards, who ensured that entrants brought no paper in or out, wore no belts or watches. And his testimony forced Toyota to hastily settle the suit – hours after the jury determined that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs – but before the jury could determine punitive damages.
Barr testified about the specifics of Toyota’s spaghetti source code, based on his 800-page report. 
There are a large number of functions that are overly complex.  By the standard industry metrics some of them are untestable, meaning that it is so complicated a recipe that there is no way to develop a reliable test suite or test methodology to test all the possible things that can happen in it.  Some of them are even so complex that they are what is called unmaintainable, which means that if you go in to fix a bug or to make a change, you’re likely to create a new bug in the process.  Just because your car has the latest version of the firmware — that is what we call embedded software — doesn’t mean it is safer necessarily than the older one.  And that conclusion is that the failsafes are inadequate.  The failsafes that they have contain defects or gaps.  But on the whole, the safety architecture is a house of cards.  It is possible for a large percentage of the failsafes to be disabled at the same time that the throttle control is lost. 
Barr explained that many of the vehicle behavior malfunctions could be caused by the death of tasks within the CPU — in particular, the death of a proprietary-name task, called Task X at trial. The name of this task was kept secret, but its functional failures took center stage at the Bookout trial. Barr dubbed it “the kitchen-sink” task, because it controlled a lot of the vehicle’s functions, including throttle control; the cruise control – turning it on, maintain the speed and turning it off – and many of the failsafes on the main CPU.  Barr testified that Toyota’s watchdog supervisor design – software to detect the death of a task – “is incapable of ever detecting the death of a major task. That’s its whole job. It doesn’t do it. It’s not designed to do it.” Instead, Toyota designed it to monitor CPU overload, and, Barr testified: “it doesn’t even do that right. CPU overload is when there’s too much work in a burst, a period of time to do all the tasks. If that happens for too long, the car can become dangerous because tasks not getting to use the CPU is like temporarily tasks dying.”  Barr also testified that the operating system contained codes that would throw away error information, ignoring codes identifying a problem with a task.
In March, Toyota paid a 1.2 billion fine and admitted to criminal wrongdoing – hiding defects and lying to everyone from the government to its customers. Toyota paid the money and took a deferred prosecution deal on a single wire fraud charge to end a four-year federal criminal investigation. At the time, the chief legal officer for Toyota’s North American division said: “Entering this agreement, while difficult, is a major step toward putting this unfortunate chapter behind us.”
So, all this comes down to a Powerpoint presentation? We don’t think so. NHTSA has finally begun to post Toyota’s submissions to its Timeliness Query investigation (TQ10-001) on its pedal entrapment recalls – another case in which the automaker paid the government millions to put the matter to rest. So, any enterprising researcher can take a stroll through, and learn more about Toyota’s machinations. The only people who have not been able to buy their way out of the problem are the owners of Toyota vehicles controlled – or perhaps uncontrolled by the crappy and mysterious Task X.
Unfortunately, this “unfortunate chapter” is not behind us.

The Toyota Owners Left Holding the Bag

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John Biello was not ready for the cruise control malfunction that sent his 2009 Tacoma careening down an exit ramp, then skidding into a rollover last June. But Tuesday, when he and his wife Diane appeared before the Commonwealth of Massachusetts Division of Insurance Board of Appeals to fight an automatic rate increase mandated by state law, Biello was fully prepared to educate the hearing officer about Unintended Acceleration problems in Toyotas.

As the great tide of cash washes from Toyota into the pockets of the U.S. government, attorneys, research institutions and some death and injury victims to settle fines and claims without an admission that the automaker’s electronic throttle control system is defective, owners like John and Diane Biello represent those left to deal with Toyota’s mistakes on their own. The Rehoboth, Massachusetts couple had no counsel, just a compelling account and a binder of public documents showing that Toyota Unintended Acceleration problems continue today and that juries and technical experts recognize what the National Highway Traffic Safety Administration has not: Toyota’s badly designed electronic architecture can cause UA.

“I knew that there had been this unintended acceleration problem. I had read about it a couple of years ago,” John Biello says. “But I thought it pretty much done. I thought the problem was fixed and I didn’t really think my vehicle was involved because I got no Unintended Acceleration recall notices.” Continue reading

Toyota Lawsuits Wrapped?

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Toyota is looking to close out its unintended acceleration crisis, with a speedy resolution to the remaining lawsuits out there. According to news reports, the automaker has been inspired by the Bookout verdict to settle a whole passel of UA lawsuits. Last month, for example, Toyota came to terms with Opal Gay Vance, a West Virginia woman who injured her neck and back, when her 2010 Camry suddenly accelerated, striking a trailer. The confidential settlement forestalled a trial set to begin on Jan. 21. In California, orders from judges in the U.S. District Court in Santa Ana and Los Angeles Superior Court opened the door to settlements in nearly 300 death and injury plaintiffs’ cases.

“We’re glad to see that Toyota has decided to approach this in a systematic and forthright way, and we look forward to seeing most of the pending claims settled in early 2014,” says attorney Donald Slavik of Robinson, Calcagnie, Robinson, Shapiro, Davis Inc. of Newport Beach, CA.

The race to empty the court dockets should not be confused with a conclusion to Toyota’s UA technical problems, which continue unabated. SRS took a stroll through the Vehicle Owners Questionnaire database, looking for 2013 UA complaints and found more than 300. They cover all of the classic scenarios, like this one:

“I backed my 2006 Toyota Corolla into a friend’s driveway, and then put the car into drive to straighten it a bit. The car suddenly without warning shot across the street (perhaps at 45-50 mph), went over a 6″ high cement retaining curbing, and across a lawn into another driveway. All the while I had my foot firmly on the brake (not the gas pedal). I swerved the wheel to avoid hitting a telephone pole, and the house. I finally got the car into neutral, and at last the brakes engaged, and I was able to stop the car avoiding a pick-up truck in the driveway and a tree. During this entire time the engine was loudly revving. Other than 3 shredded tires and 2 ruined rims, the car seems to be intact. I have contacted Toyota and hope for a successful resolution. The service manager at the dealership where this vehicle was purchased, however, said that since it is not under recall there is nothing they can do. Meanwhile I will be fearful every time I get behind the wheel, which I have yet to do!    3 new tires and 2 new rims is a small price to pay – it could have been my life! Had cars been passing by on this normally busy street, or children walking on the sidewalk on their way home from school – other lives as well could have been taken. This was a terrifying event! Judging from all of the similar stories written regarding this make, model and year, Toyota needs to do a recall to solve this problem once and for all.” (ODI 10496026) Continue reading

Toyota Unintended Acceleration and the Big Bowl of “Spaghetti” Code

Last month, Toyota hastily settled an Unintended Acceleration lawsuit – hours after an Oklahoma jury determined that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs – but before the jury could determine punitive damages.

What did the jury hear that constituted such a gross neglect of Toyota’s due care obligations? The testimony of two plaintiff’s experts in software design and the design process gives some eye-popping clues. After reviewing Toyota’s software engineering process and the source code for the 2005 Toyota Camry, both concluded that the system was defective and dangerous, riddled with bugs and gaps in its failsafes that led to the root cause of the crash. Continue reading

Toyota’s Motion is Extra-Judicialious!

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Two judges have turned down Toyota’s request to bar Plaintiffs from speaking to the press about their unintended acceleration cases.

Guadaloupe Alberto of Flint, Michigan died in April 2008, when her 2005 Camry accelerated out of control, left the roadway and struck a tree. Alberto was known as a cautious driver; the 2005 Camry is known as one Toyota’s most problematic UA vehicles. Alberto v. Toyota is now set for trial in February 2014.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries. Bookout v. Toyota is also soon headed for trial in the District Court of Oklahoma County, Oklahoma.

On Sept. 4, Toyota moved for a gag order in Alberto, to stop the family and its attorneys, including West Virginia lawyers Benjamin Baily and Edgar “Hike” Heiskell III, from talking to the press.

“Defendants believe that statements to the media and the release of witness deposition testimony will have a substantial likelihood of materially prejudicing the proceedings and jury selection as prospective jurors should consider only the evidence present at the trial,” the automaker argued. Continue reading

The Toyota Claimants Are Getting Restless

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The $1.63 billion deal in the Toyota Unintended Acceleration economic damages multi-district litigation worked out between the lawyers for Toyota and Hagens Berman, Sobol, Shapiro, and Susman Godfrey the firms representing 22.6 million consumers is headed for a final approval hearing before U.S. District Judge James Selna  on June 14, and really, who could complain?

Toyota gets to continue to claim that its electronics are just fine while funding research blaming drivers for runaway vehicles that it can stash in its back pocket for future unintended acceleration product liability lawsuits. Some Toyota owners – but not those of the most troubled model years will get a brake override system that sorta, kinda may work sometimes under select conditions (hint—don’t put your foot on the brake first).

There’s $250 million for consumers whose vehicles are ineligible for a brake override retrofit. The cash payouts for those folks range from $37.50 to $125. Let’s see. That ought to cover an oil change, a new set of windshield wiper blades, and a Vente Mocha Chip Frappacino at Starbucks to sip while you wait. Done! Continue reading

Ford Unintended Acceleration Hopping that Class Action Train

It’s Ford’s turn to take a ride down the Unintended Acceleration (UA) class action track. The civil lawsuit, filed in the southern district of West Virginia, with plaintiffs from 14 states, seeks economic damages from any Ford vehicle manufactured between 2002 and 2010 equipped with an electronic throttle control system but not a brake override system. This civil lawsuit seeks economic damages only on behalf of Ford owners and lessors who relied on Ford’s representations of vehicle safety in choosing their products.

As in the recently settled Toyota MDL, the remedy is a brake override system. Hopefully Ford will design one that works in most UA scenarios – unlike Toyota’s version, which does not override the command to accelerate if the brake is already depressed when the UA occurs or at low speeds. (Sorry, all you plate-glass-breaking, drive –through, curb-hopping Toyota parkers who have the misfortune of experiencing a UA event while riding the brakes into a parking spot.)

While Toyota has gotten most of the ink on UA, it is hardly the only automaker grappling with electronic malfunctions in its vehicles. A casual survey of some of pending or recently retired National Highway Traffic Safety Administration investigations and news stories about wild terrifying trips on our nation’s highways shows that Hyundai, Mercedes Benz, Honda, Ford and others have been associated with Unintended Acceleration and Unintended Braking.

Ford, you may recall, was the target in 2011 of Judge William T. Swigert’s ire for lying to the court, the National Highway Traffic Safety Administration, as well as its own expert witnesses on its knowledge of UA. Swigert, Senior Judge of the Florida’s Fifth Judicial Circuit, set aside a jury verdict in favor of Ford in Stimpson v. Ford, because the automaker defrauded the court by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles. Continue reading

Betsy Spills Toyota’s Beans

To steal a line from Bogie: “Of all the publications in all the websites in all the world, she walks into Corporate Counsel.” She – being Betsy Benjaminson, a freelance translator from Israel who was tasked with translating from Japanese into English documents regarding Toyota Unintended Acceleration. Corporate Counsel — being the self-described “leading digital destination for in-house counsel to find breaking news and practical information.” And this bit of breaking news? When you lie to the world about an automotive electronics problem that has the potential to result in fatal crashes, don’t expect every underling to keep your secrets.

The story, entitled Is Toyota Telling the Truth About Sudden Acceleration? (Spoiler alert: the answer is: No.) is a fascinating behind-the-scenes look at a company in disarray with a technically challenging problem that its technicians weren’t looking too hard to solve, while its legal and public relations gears clicked into place to drive the denial machine forward. Our favorite:

“Hagiwara and Chris Tinto, a V.P. for technical and regulatory affairs and safety, had been talking about the U.S. investigation and an earlier one in Europe that also involved unintended acceleration (UA).

‘Tinto is extremely pessimistic,’ Hagiwara wrote, ‘and is saying (public hearings, someone will go to jail, I can’t completely take care of the pedal problem, etc.).’ Tinto’s primary concerns (according to Hagiwara): ‘For NHTSA, we said that our investigations in Europe found that the pedal return is a little slow at a slightly open position, and that there were no accidents, but this is not true. Last year’s situation in Europe (many reports of sticking pedals and accidents, and a TI TS9-161 was filed on October 1, 2009) was not reported to NHTSA.’ That failure, Tinto said, ‘may be a violation of the TREAD Act’—the federal law that requires car manufacturers that conduct recalls in foreign countries to report these to U.S. regulators.” Continue reading