October 25, 2013
Toyota this morning quickly settled an Unintended Acceleration case, before it could move into the punitive damages phase – hours after an Oklahoma jury has returned a $3 million verdict against the automaker in a 2007 crash that seriously injured the driver and killed her passenger.
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.
The jury yesterday awarded $1.5 million in damages to Bookout and another $1.5 million to the Schwarz family and determined that Toyota acted with “reckless disregard.”
This was the first trial in which the plaintiffs, represented by Graham Esdale and Cole Portis of Beasley Allen in Montgomery, Alabama, made Toyota electronic malfunctions the centerpiece of an Unintended Acceleration case. And what may be significant going forward is not the verdict – although Oklahoma juries are not known for being overly sympathetic to plaintiff – but what is entered into the public record about what Toyota knows about the failures of its Electronic Throttle Control System– Intelligent (ETCS-i) and when they knew it. And what facts will fly from the nest of civil jurisprudence and into the public consciousness.
Toyota has been wildly successful in maintaining control over the narrative that electronics could not possibly be the cause of the many Unintended Acceleration complaints lodged by consumers who experienced incidents at high-speed, in parking lots, when their foot was on the brake, or no pedal at all. Toyota has been ably abetted by the Holy Order of Mechanical Causes and Our Lady of the Old Lady Drivers over at NHTSA whose faith-based investigations have rubber-stamped this impossibility.. They have consistently blamed floor mats and drivers – particularly if that driver is female and of a certain age. They commissioned the greatest, most thorough, highly scientific study, conducted by Exponent NASA’s Engineering Safety Center, which according to the departed Secretary of Transportation Ray LaHood, delivered the opposite verdict: “There is no electronic-based cause for unintended, high-speed acceleration in Toyotas.” And they have conducted research designed to blame elderly female drivers for UA incidents.
To be fair, Toyota has paid a lot of money to keep it this way. The untold millions in advertising its committment to safety and the $1.1 billion settlement in the economic loss multi-district litigation kept their version of events going and gave consumers next to nothing, while funneling money into “research” that will wedge the elderly-driver-error impression more deeply into the technical literature and hurt future plaintiffs in the process. The nearly $50 million in fines Toyota has paid to the federal government over failing to report floor mat and sticky pedal defects to NHTSA in a timely manner also kept alive the narrative that government enforcement was on top of this.
Toyota has had some civil liability victories. In 2011, Dr. Amir Sitafalwalla, a Scion owner, lost his case against Toyota in the U.S. District Court in the Eastern District of New York, after his expert withdrew the assertion that a malfunction in the electronic throttle control was the cause, and Sitafalwalla then claimed that an errant floor mat was to blame. Nor did the jury find against Toyota in the Uno trial, which concluded in October. Noriko Uno, 66, died in a 2009 crash. Uno’s 2006 Camry, which was never recalled for the retrofit of a brake-to- throttle override, was struck by another vehicle before she sped into oncoming traffic, while trying to brake. Uno alleged that the absence of a brake-override system in the vehicle was to blame, but the jury blamed the driver of vehicle that initiated the crash, awarding $10 million in damages.
But, Toyota has also settled cases in which the fact-pattern was not in its favor. In 2010, Toyota settled the Saylor wrongful death lawsuit for $10 million. On August 28, 2009, Mark Saylor, a California Highway Patrol Officer, his wife Cleofe, 13-year-old daughter, Mahala, and brother-in-law Chris Lastrella died in an unintended acceleration crash in Santee, California. Saylor was driving a 2009 Lexus ES350 on loan from a dealership, when the incident occurred. The moments before the crash were captured in a 911 call, and the crash was blamed on an errant floor mat.
Toyota also settled the Van Alfen case earlier this year. In November 5, 2010, Paul Van Alfen was exiting I-80 West in his 2008 Toyota Camry when he tried to take the vehicle out of cruise control mode. According to witnesses, he went around two stopped vehicles at the end of the ramp, and crashed into a rock wall. The surviving occupants, his wife and son said the Van Alfen was pressing the brake firmly and was communicating this action as the crash unfolded. Van Alfen was killed as was his son’s fiancé seated in the left rear.
Currently headed for trial are the Alberto and St. John cases – both are single-vehicle crashes with older women drivers. Neither survived to tell their side of the story.
The Bookout case had some advantages – a driver who survived the crash and could testify about what happened, and very long tire marks which could attest to her claims of trying to stop the vehicle. Perhaps Toyota was betting the confused-old-lady-driver card would trump all. (Elderly women, poor dears, always pouring boiling water over door knobs, mistaking them for teacups.)
We don’t know which Toyota exhibits are under a protective order, and we don’t know what testimony was teased out in open court. We will be reading the trial transcript closely. But, whatever went on in that Oklahoma courtroom, the jury did not dismiss Bookout on the basis of her age or gender.
That has not always been the case.
Rhonda Smith experienced a UA event while merging into highway traffic in October 2006 in a 2007 Lexus ES350 with 3,000 miles on it. During the six-mile event, Mrs. Smith’s vehicle reached speeds in excess of 100 mph. The engine would accelerate and decelerate independent of her attempts to stop the vehicle by changing the gears, applying the brakes with both feet and setting the emergency brake. She was finally able to shut off the engine at 33 mph and the Lexus came to a stop. The driver of the tow truck saw the vehicle attempt to start itself as Mr. Smith, who had arrived to assist his wife, put the vehicle in neutral. The vehicle was towed to the dealership, Lexus of Kingsport, where it remained. The Smiths contacted Toyota immediately and continuously, from October 13, 2006 to February 2007. After telling Mr. Smith that Toyota was able to simulate his wife’s experience, the company sent a letter in December 2006, stating that nothing was wrong with her vehicle. Rhonda and her, husband, Eddie Smith, flew to Washington at their own expense, to testify before the U.S. House Commerce and Energy. She was later vilified for her testimony. A Lexus customer service log from January 24, 2007 states:
Spoke with [Service Manager], Mike who adv[ised] he recently spoke with this cust[omer] who is very nice and referred him to NCDS. SM adv[ised] that this veh[icle] kept speeding up and the cust[omer] couldn’t stop it. He ady[ised] two F[ield] T[echnical] S[pecialists]’s were involved and they were able to-duplicate the concerns. He thinks the FTS adv Lexus that this was a trans[mission] issue but it isn’t.
Juanita Grossman, the petite 77-year-old woman who died from her injuries after her 2003 Camry crashed into a building in March 2004. When the emergency medical technicians arrived to transport Mrs. Grossman to the hospital they found her with both feet still jammed on the brake pedal. She was still conscious, and in the days before she succumbed to her injuries, she kept telling her family: “The car ran away on me. The car ran away on me.” NHTSA never investigated her crash. Meanwhile, Toyota’s Technical Analyst Manager Robert Landis, performed no vehicle diagnostics, merely conducted a visual inspection and declared that the accelerator pedal was bent. Landis blamed Grossman for the crash saying that she pushed the accelerator pedal so hard that she bent it.
Little old lady bends the accelerator pedal with her mighty force, but is found immediately post-crash with both feet “jammed” on the brake pedal.
Now, who exactly is confused?