Why Civil Litigation Matters to Safety: GM Edition

If you want to know why civil litigation matters to safety, take these links over to USA Today and read James Healey’s fine coverage of General Motor’s crappy, nine-years-too late 2005 Cobalt and Pontiac G5 recall, and attorney Lance Cooper’s request to the National Highway Traffic Safety Administration for a Timeliness Query investigation. (6 Killed in GM Cars with Faulty Ignition Switch; Lawsuit: GM Knew of Cobalt Ignition Problem; and Lawyer Asks Feds to Explain Recall Timing)  

After settling a lawsuit in which a 29-year-old woman died in crash caused by a defect known within GM since 2004, the automaker announced that it would recall a subset of vehicles plagued by ignition switches that wander from the run to the accessory or off position. These shifts  create an emergency situation while the vehicle is underway, disabling the airbags while cutting off the engine power, power brakes and power steering. The defect, which GM engineers discovered in 2004, before they began selling the 2005 Cobalt, was the central issue in Melton v General Motors.

Brooke Melton, 29, died in 2010 when the ignition switch in her 2005 Cobalt slipped into the accessory position as she drove along Highway 92 in Paulding County, Ga. Melton’s Cobalt skidded into another vehicle; she died of her injuries in the crash.

The incident was initially attributed to Melton simply losing control of her car on a rainy night. But the Melton family sought the counsel of attorney Lance Cooper, after facing a legal claim from the driver in the other vehicle. Cooper, a veteran of motor vehicle defect litigation, saw something that many lawyers would have overlooked and filed suit against GM.  The records he pried out of GM’s hands after 18 months of requests for production and a court order compelling the automaker to produce what it knew about the defect, revealed a long, sorry history. GM engineers had discovered the ignition switch problem during the Cobalt’s production stage, but the company sold them anyway. GM began to receive complaints about the problem almost immediately, and tried to make them go away with an October 2005 TSB covering the 2005 Cobalt and with a later TSB involving later model years of the Cobalt, the Pontiac G5, along with 2006-2007 Chevrolet HHR, the 2005-2006 Pontiac Pursuit in Canada; the 2006-2007 Pontiac Solstice; 2003-2007 Saturn Ion; and 2007 Saturn Sky. This “fix” – an ignition key cover that changed the design from a slot to a key hole – did not solve the problem.

“This case is the poster child for why civil litigation matters,” says Cooper, of the Cooper Law Firm, located in Marietta, Ga. “It’s my firm belief, even though we settled the case, that GM would not have recalled these vehicles but for this lawsuit. GM knew. NHTSA knew. And nothing was done until the Melton family decided that filing this lawsuit was the right thing to do.”

Right Under NHTSA’s Nose

How did NHTSA know?

In 2007, the agency contracted the Indiana Transportation Research Center to conduct a Special Crash Investigation (SCI) into an October 2006 fatal crash involving an airbag non-deployment in a 2005 Chevrolet Cobalt. The vehicle left the roadway, became airborne, vaulted over a driveway, hit a telephone utility box and then a clump of trees. Despite this, the airbags did not deploy, and the front seat passenger, who was unbelted, died in the crash. The report notes that it was not known why the vehicle left the roadway, during a time of light traffic and dry roads, nor was it known if the driver took any action to avoid the crash. The investigators apparently did not interview the driver, who survived the crash.

This SCI was initiated as an examination of the Cobalt’s Advanced Occupant Detection System, and the 30-page report is an astounding study in A Problem Hidden in Plain Sight. And although this probe ostensibly was triggered by questions surrounding the occupant sensing system and the airbag non-deployment, the investigators quickly zeroed in on the ignition switch problem. The EDR readout showed that the ignition was in the accessory position at the time of the crash and the SCI investigators directly linked this to the 2006 version of the ignition switch TSB, which covered seven affected GM models. In fact, the only extended root-cause analysis in the report surrounds the failure of the ignition switch:

“This may explain why zeros were recorded for vehicle speed and engine speed in the final two seconds of the pre-crash data. It is possible the ignition switch could have been knocked to the “accessory” position by the driver’s leg or knee at the time of the vault. This investigation revealed that inadvertent contact with the ignition switch or a key chain in the 2005 Chevrolet Cobalt can in fact result in engine shut-down and loss of power. A GM service bulletin applicable to the 2005-2007 Chevrolet Cobalt entitled “Information on Inadvertent Turning of the Key Cylinder, Loss of Electrical System and No DTCs# 05-02-35-007 A ( 10/2512006)” describes this potential problem [see attached GM bulletin at the end of this report (Figure 25)]. The bulletin indicates that there is a potential for the driver to inadvertently turn off the ignition due to low ignition key cylinder torque/effort. The bulletin indicated this was more likely to occur if the driver is short and has a large and/or heavy key chain attached to the ignition key. The bulletin indicated the condition was documented to occur when a driver’s knee contacted a key chain while the vehicle was turning and the steering column was adjusted all the way down.”

SCI investigators found at least six complaints in the VOQs related to engine shut-downs when the ignition switch or key chain was contacted by the driver – sometimes from as little contact as “ simple ‘brushing’ of the key chain or touching of the ignition switch.”

The investigators concluded:

“It is not known what role, if any, this may have played in the non-deployment or the air bags. Such a determination would most likely require an analysis of the air bag system and ignition wiring schematic in order to determine if in fact the air bag is capable of deploying when the ignition is switched from the “on” position to the “accessory” position. Such an undertaking was beyond the scope of this investigation.”

Also unknown:

What role did turning off the engine play in initiating the crash?

Did the Office of Defects Investigation make a call to GM to find out if jogging the ignition out of run to accessory killed the airbags?

Did ODI put the TSB together with the Special Investigation and the VOQs to consider launching their own probe?


Recall Management Division, WTF?

Cooper’s Timeliness Query underscores one of the Safety Record’s bête noirs – a Part 573 Defect and Noncompliance Notice that does not follow the law. In it, he notes that the Code of Federal Regulations is very specific about the information that must be included in a Part 573 notice – to wit:

“all events that were the basis for the determination that the defect related to motor vehicle safety, including a summary of all warranty claims, field or service reports and other information, with their dates of receipt.”

What does GM file?

“The issue was presented to the Field Performance Evaluation Review Committee and on January 31, 2014, the Executive Field Action Decision Committee decided to conduct a safety recall.”

In its press release GM acknowledges six deaths tied to this defect. Six! And yet, not one of these significant events is noted in the Part 573.

A Part 573 is a mandatory report – part of the official record, and an important part of the official record.  Yet, we routinely see defect notices with no chronology of the significant events leading to the decision to recall.

One might argue that establishing the chronology of when a manufacturer knew about a defect allows NHTSA to determine whether it ought to go after an automaker for violating the timeliness requirement. But, we do not see anyone from the Recall Management Division returning these incomplete notifications to the manufacturer for another go at doing it right.

Let’s allow for a moment that NHTSA is a many-limbed bureaucracy, and one department doesn’t always coordinate well with another department. Let’s give the under-staffed and under-resourced agency a little slack on connecting the dots. But when you don’t even require manufacturers to follow the plain letter of the CFR in a Part 573, there are no dots to connect. No dots.

For years, the Recall Management Division has operated more aptly as the Recall Mismanagement Division. Even when it has gone after automakers – mostly recently Toyota – in high-profile Timeliness Queries that resulted in big fines, it has hidden the official record of the agreement from public view. The Opening and Closing Resumes, the demand letter, special reports generated by the agency, Toyota responses, requests for confidentiality – all hidden from public view. What don’t they want us to see?

Civil litigation is a window into what companies are really up to – the longstanding knowledge of problems they would rather ignore, and the reluctance to fess up and correct them. In this case, says Cooper, GM’s internal records show that the decision to take the Cobalt to market, despite the ignition switch problem, was just a cost thing – and it cost at least six people their lives.

“The chief engineer who discovered the problem, he just whitewashed it. We can’t fix it in time, so it will have to remain in the car when we begin selling later this year.” Cooper says. “It’s bone-chilling. They recognized the defect. If they just would have fixed it, I have no doubt that Brooke Melton would be alive today.

I’m a conservative trial lawyer and I am conservative in my beliefs that the federal government often doesn’t do a good job, and you need the private market – in this case, the jury system that allows individuals to investigate and hold GM accountable.”