ThePopTort

NHTSA, Meet FOIA

"Today, General Motors is back on top as the world's No. 1 automaker. Chrysler has grown faster in the U.S. than any major car company," reported the President in the State of the Union last night.  Great news for auto workers.  I’m sure no one would attribute any of that success to GM and Chrysler deciding to wipe out the legal rights of a few hundred people – including children – who were seriously injured or killed due to vehicle defects. 

On the other hand, Toyota’s downfall was clearly a big factor in GM’s rise to #1 again.  And while most of this is attributable to the Japanese tsunami, Toyota – and the National Highway Traffic Safety Administration - continue to battle with auto safety advocates over still-lingering questions about the very odd sudden acceleration problem and the company’s response.  

Reports the New York Times, Safety Research and Strategies has filed a Freedom of Information Act lawsuit against NHTSA trying to find out if the agency has been withholding information “that may depict an acceleration incident caused by electronic systems in a Prius instead of the floor mats or pedals covered by Toyota recalls.”  Specifically, they’re seeking “transcripts, recordings, photographs and videotapes generated by a visit of two federal investigators to the home of a senior government official who had complained about sudden, unexplained acceleration of his own Prius,” which happened several times on one 200-mile trip!

“The engine started to rev — actually almost roaring — and the vehicle picked up speed,” he said.

He noted that the accelerator pedal was neither stuck nor constrained by the floor mat. “The floor mat wasn’t up against the accelerator pedal,” he said. “I put my toe up against the back of the accelerator pedal to see if it was stuck. It was not stuck; it was fully up.”

NHTSA has dismissed all concerns that sudden acceleration incidents have been caused by electronic systems, as has the National Academy of Sciences.  However, as the Times notes, NAS also “concluded that federal regulators were ill equipped to detect problems in the increasingly complex computer systems of modern automobiles.” 

 “This is all about transparency,” said Sean Kane, co-founder of Safety Research, an auto consulting firm in Rehoboth, Mass. “This is an agency that selectively releases data that fits its narrative that electronics are not at fault in sudden acceleration.”

Hope they get what they need.

Flaming Volts Ignite Investigation

In our continuing series called “On the road this holiday? Watch out!”, here’s a situation you may have missed last week. You know those stories of laptops catching fire thanks to their overheating batteries?  Or last year’s UPS plane crash near Dubai when the plane, carrying thousands of lithium batteries, ignited?  Well, turns out those same batteries are in every electric car!  What’s more, the National Highway Traffic Safety Administration has evidence that GM Volts are catching fire.

Here’s how it all went down:

NHTSA learned of a possible fire risk involving damaged Volt batteries when a fire erupted in a Volt that was being stored in a parking lot of a test facility in Burlington, Wis. The fire was severe enough to cause several other vehicles parked nearby to catch fire as well.

The car had been subjected to a side-impact crash test more than three weeks earlier, on May 12, during which the battery was punctured and its coolant line ruptured.

Last week’s tests of three battery packs were designed to replicate the May test. In that test, the Volt was subjected to a simulated side-impact collision into a narrow object like a tree or pole followed by a rollover, the agency said.

The first battery tested last week didn’t catch fire. But a battery test on Nov. 17 initially experienced a temporary temperature increase, and on Thursday caught fire while being monitored. Another battery tested on Nov. 18, which was rotated 180 degrees within hours after the test, began to smoke and emit sparks shortly after the rotation.

GM, which was informed of the investigation on Friday, said in a statement that the Volt “is safe and does not present undue risk as part of normal operation or immediately after a severe crash.”

Now, it should be noted that “Volt competitor Nissan Leaf uses similar batteries but has not had fire problems in NHTSA crash tests. Ford and Mitsubishi are bringing out electric models next year that also will use the lithium-ion batteries.”  So what’s with GM and its auto defects – again!

At least this time, they’re on the hook for liability claims for this defect, having cruelly abandoned hundreds of victims of its defective cars before its 2009 bankruptcy and bailout.  That included children like Amanda Dinnigan, who was “nearly strangled” as “the adult seat belt and shoulder restraint snapped her neck.” She has “no feeling, can't breathe on her own, can hardly move her head" and whose health care costs are around $500,000 a year.  You may recall that GM, as well as Chrysler, has complete immunity from all tort claims, like Amanda's, arising from crashes which occurred before the bankruptcy. Each one of those claims represented a potential defect that might also have led to a NHTSA investigation.  This wholly unnecessary part of bankruptcy deal continues to be a shameful black mark on this country. That just had to be said.

You can help Amanda Dinnigan here. 

UPDATE: "General Motors says it will offer free loaner cars to Chevrolet Volt owners if they're concerned about the cars catching fire."

Rental Car Dangers - From Microbacteria to Fuel Tank Defects

About a year ago, the Today Show ran a piece about the filthy interiors of rental cars and ever since, I’ve been carrying around Wet Wipes.  I tend to rent cars a lot.  Now I realize that rather than Wet Wipes, I should be carrying around an auto mechanic.

At the New York Times automobile blog, Wheels, Christopher Jenson has been doing some great reporting about how rental car companies sometimes don’t comply with safety recalls – or at least, they think it’s OK to decide on their own whether a recall is important enough to respect.

Yesterday, the blog discussed actual letters from the major rental car companies, who have “told the National Highway Traffic Safety Administration that in some cases they continue to rent vehicles that have been recalled if they believe the problem is not serious,” or “what a Hertz executive called ‘a true safety recall.’”

Of course, there is no such thing.  A safety recall is a safety recall.  NHTSA spokesperson Karen Aldana says, “All safety recalls resulting from defects present an unreasonable risk to safety and we believe it is inappropriate to suggest that some defects are not risky enough to require repair.  For the safety of the motoring public, all recalled vehicles should be fixed promptly.” 

Jenson writes,

The safety agency began its investigation last year, shortly after the Federal Trade Commission was asked by two consumer groups, Consumers for Auto Reliability and Safety and the Center for Auto Safety, to order Enterprise Rent-A-Car to fix recalled vehicles before renting them. Enterprise has admitted in a California court that its failure to fix a Chrysler PT Cruiser was responsible for the deaths of two California women when their car caught fire and crashed.  The F.T.C. has yet to act on that request.

That would be the tragic case of Jacqueline Houck and her sister, Raechel (which we covered here and here), who died because Enterprise failed to carry out a safety recall of the car they rented. 

Earlier, Jenson reported,

The American Car Rental Association wants the government to adopt a new system that would designate some recalls as so serious that a vehicle should no longer be driven while others would allow cars to be driven and repaired later. …

Rosemary Shahan, the president of Consumers for Auto Reliability and Safety of Sacramento, said in an e-mail that the proposal would “perpetuate rental-car roulette and allow rental car companies to get away with renting out vehicles that are so unsafe they are being recalled.”

The idea of a two-tier system amounts to a license to rent cars with “with unrepaired safety defects,” Clarence Ditlow, the executive director of the Center for Auto Safety, wrote in an e-mail.

Senator Charles E. Schumer, Democrat of New York, has asked the Federal Trade Commission to explain why rental car companies are allowed to rent out vehicles that have not been repaired even though auto dealers may not sell a new vehicle if a recall is pending. He has also said he plans to introduce a bill this year that would put rental-car companies under the same restriction as new-car dealers.

In California, a bill is moving through the legislature that would make California "the first state to require car rental companies to pull vehicles out of service when they receive notice of a safety recall.”  The rental car companies believe this “unfairly targets them” arguing “the matter should be handled at the federal level so they do not have to deal with a patchwork of rules.”

How fortunate for them that currently, the federal agency, NHTSA, “lacks the authority to force rental companies" to recall cars.  Where's the Today Show when you need them?

 

What do Toyota and Jake Gyllenhaal Have in Common?

If you think Jake Gyllenhaal is the only guy with “Source Code” issues these days, think again.  The very same day this movie thiller opened (sadly crushed at the box office by an animated bunny), Toyota thrilled safety advocates by agreeing to hand over its own top-secret "Source Code," which is the underlying program that runs the software on a vehicle's onboard computer system.  Toyota’s source code is “a potentially important victory for attorneys who claim that electronics can cause sudden acceleration.” As the Los Angeles Times put it, “This year the federal government released a report finding no flaws in the automaker's electronics. Auto safety advocates and lawyers suing the company have since called the report biased and incomplete.”  This source code may, indeed, be the answer.

You may recall that in 2009, Toyota started recalling millions of cars for defects related to sudden unintended acceleration.  In February 2010, we covered the story, which AP broke, of new documents that showed “Toyota saved $100 million dollars by delaying recall information [and] bragged about the savings.”

Then in April 2010, we found out that on January 16, 2010, Irving A. Miller, then the group vice president for environmental and public affairs at Toyota Motor Sales U.S.A, sent an email to a Japanese colleague in which he urged his colleagues to “come clean” and admit it had mechanical problems with sticking accelerator pedals three days before the company met with federal authorities to discuss a recall.  He said, “We are not protecting our customers by keeping this quiet… The time to hide on this one is over. We need to come clean.”  Mr. Miller retired from the company shortly after he sent this. 

As weird timing coincidences continued last Friday, a federal jury ruled for Toyota and blamed the driver – a Long Island doctor - in the first jury trial over this untended acceleration problem.

We weren’t at the trial so we’re not exactly sure what the jury heard.  But the New York Times did note that the doctor “argued the accident was caused by defects in either the electronic throttle system or the floor mats” but the judge “ruled out evidence on the electronics.”

Will Toyota’s new Source Code make a difference in the next acceleration case?  Is Jake Gyllenhaal available? Could be exciting!  Source Code II anyone?

The Hottest New Civil Justice Trend

Hey, wanna know what’s hot hot hot in state politics today? Handing power over to Corporate America to re-write a state’s judicial system, that’s what. 

In New York State, as we’ve noted, Governor Andrew Cuomo has given hospital lobbyists and millionaire hospital executives "carte blanche" to rewrite New York State’s judicial system in medical malpractice cases. 

Yesterday, the Florida Senate (with the House expected to follow), at the behest of the auto industry, passed a bill to rewrite state law, as once laid out by the Florida Supreme Court. That bill overturn standards meant to hold car companies fully responsible for producing defective cars. The bill

[O]verturns the 2001 Florida Supreme Court decision D’Amario vs. Ford Motor Co. The court ruled that jurors cannot consider the cause of the accident when determining fault on enhanced injuries. These are injuries that are not the result of the initial accident, but rather come from a defect in the car, such as a faulty gas tank.

 Or to put it another way,

Siding with the Ford Motor Co. and automobile manufacturers, the Senate approved a measure overturning a Florida Supreme Court decision in a “crashworthiness” case dealing with enhanced injuries in accidents. …

Sen. Maria Sachs, R-Delray Beach, said that the bill, which would apply retroactively, would let vehicle manufacturers off the hook.

“We Floridians buy these vehicles and we are led to believe that they will be safe, and safe from inherent defects that will cause secondary issues that can cause even more damage, injuries to people,” she said. “Those manufacturers should be held accountable whether it’s a tractor, a motor vehicle.”

Steven Rattner’s Karma Comes Home to Roost

Last year, American financier Steven Rattner was appointed by President Obama to oversee the GM and Chrysler bankruptcies.  Among his ideas was to recommend complete immunity for both companies, covering all product liability lawsuits involving the millions of cars then on the road.

In fact, both companies would have received this unprecedented and unjust benefit had it not been for considerable pressure from consumer groups and car crash victims.  Here is an excerpt from one consumer group letter:

Respectfully, the Obama Administration’s backed Chrysler and GM bankruptcy plans are unsafe at their current speed because they contain legal loopholes that will shield Chrysler and GM from being held accountable for defective cars and take away a critical public safety protection that has been used to reduce the number of Americans hurt or killed from defective Chrysler and GM vehicles.  This means that a time bomb is now ticking for many families driving these cars.

No thanks to Mr. Ratter, the companies eventually gave in – but only partially.  Both GM and Chrysler decided to accept responsibility for the accidents caused by its defective cars, but only if the accident occurred after the date of the bankruptcy.  In other words, they continued to thumb their nose at hundreds of loyal customers with injury suits already pending, like: Jeremy Warriner, whose legs were so badly burned by a fire in a Chrysler vehicle that they had to be amputated, or Brian and Christina Catalano,  whose mother was killed by a Chrysler minivan that “self-shifted” into reverse, dragging her under the car, or Patrick James, whose daughter was killed in a dangerous Chrysler van that flipped over.  Many of these victims traveled from great distances to Washington DC to plead with their members of Congress.  See some of their stories here.

So, we do find it rather ironic that today, New York Attorney General (and Governor-elect) Andrew Cuomo, filed two lawsuits against Mr. Rattner, seeking $26 million and lifetime ban from the New York’s securities industry, for “paying kickbacks in order to get a $150 million investment from a New York pension fund for his private equity firm....’Steve Rattner was willing to do whatever it took to get his hands on pension fund money including paying kickbacks, orchestrating a movie deal, and funneling campaign contributions,’ said Cuomo in a release. ‘Through these lawsuits, we will recover his ill gotten gains and hold Rattner accountable.’”

Clearly, there’s enough irony to go around (given that today is GM's big public offering day), although we like to look at it this way: "Karma can be a real a b*#tch!!!"

Don't Forget that Other Branch

Among the three branches of government, the judicial branch is probably the one NOT on everyone’s mind this election day, let alone tomorrow when the results starts sinking in.  We just don’t want you to forget about the branch that’s not supposed to be political - but is. 

Tomorrow, the U.S. Supreme Court will hear the case Williamson v. Mazda Motor of America, in which it is going to decide whether or not auto companies are immune from liability for not installing safety devices in cars even though the National Motor Vehicle Safety Act, 49 U.S.C. §§ 30101 et seq., itself reads, “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.”  Seems like the answer should clearly be "No Immunity", right?  That’s except when you have an activist U.S. Supreme Court, which despite decades of caselaw allowing injury cases to go forward, decided in 2000 to answer that question, “Yes, Immunity!”  That confused everybody, including lower courts, and apparently itself, when several years later it went in the complete opposite direction in a case involving unsafe drugs.

Bloomberg writes that the Court "might deadlock 4-4 because Elena Kagan, the newest justice, has disqualified herself. As the Obama administration’s solicitor general earlier this year, she urged the court to take the case. A tie vote would leave intact a lower court ruling that favored automakers without setting a national precedent."  Ugh.

Here are the case facts: Thanh Williamson, 32 years-old, died in 2002 in Utah when the minivan in which she was riding "struck a Jeep Wrangler that had become detached from a motor home that was towing it. The collision forced Williamson’s body to jackknife around her seatbelt, causing severe abdominal injuries and internal bleeding."  There were no shoulder restraints at her seat even though car companies knew that seatbelts without shoulder belts caused this kind of injuries.  Federal regulations required them later. 

The family says the car was not reasonably safe, and the only thing they want is to argue this before a judge or jury.  No matter what happens in these elections, I’m pretty sure that the right to trial by jury isn't up for a vote, right?   We should be good.

The Coble Family on Oprah – Suing for the Right Reasons

Most of Oprah’s show yesterday, called “The Worst Days Of Their Lives And The Miraculous Twist Of Fate”  was spent on the story of California’s Coble family.   You could hardly imagine a more tragic story than this.  Several years ago, Lori Coble was stuck in traffic on a busy freeway with her three small kids in back when a truck going about 55 mph rammed into the back of the car.  Lori lived.  All three children died (pictured here).  Fantastically, in 2008 the couple, Chris and Lori, gave birth to triplets (i.e., the miracle). 

The truck driver was convicted of vehicular manslaughter and sentenced to 364 days in jail and five years probation.  But as we watched the show, we couldn’t help but wonder if there was more to this story.  How a truck driver could have been so reckless?  Was he texting?  No, Oprah would have been all over that.  Was he drunk?  Did the brakes fail?  What else?

Then things started to make a bit more sense.  Towards the end of the show, you discover that the Cobles had filed a wrongful death lawsuit against Caltrans, which is responsible for ensuring the safety of California freeways.  Their motive wasn’t money.  It was safety – to try to force Caltrans to fix this unsafe highway, arguing that “faulty design of that stretch of freeway led to a backup, which led to the accident.”  They noted, “Caltrans reports from a decade ago that called for an additional lane at the Oso Parkway off-ramp because traffic was backing up on the freeway for a half-mile before the exit.”  See more here.  

However, the California jury said no, finding Caltrans not at fault.  Chris Coble said, "We feel we unjustly lost based on the fact that the road remained unchanged for 10 years even though it was identified as a danger zone … We wanted to let people know that our story does not have a happy ending.”  Even worse, they were ordered to pay Caltrans $291,534.04 in fees and costs.

People bring lawsuits for a lot of reasons, and very often money is not the motive.  It’s to make sure that their own tragedy is not repeated, to spare others their pain and make us all safer.  It’s a risk to sue, but one for which families like this shouldn’t be penalized.  Here is their website, in case you’d like to help them out. 

Baby You Can Drive My Car – But I Wouldn’t!

(Please no offense Beatles fans!)

It was just announced that “Toyota is recalling 740,000 vehicles in the U.S. that may leak brake fluid.”  This latest recall covers “2004-06 Avalons, non-hybrid Highlanders and Lexus RX330, GS300, IS250 and IS350 models.”  Let’s add to that hundreds of thousands more recalled cars in Europe and Japan. That makes about 10 million Toyota cars and trucks recalled worldwide this year, “from faulty gas pedals and floor mats that can trap accelerators [which caused at least 90 deaths, the cause of which National Academy of Sciences and NASA are still investigating], to braking problems in its Prius hybrid” and stalling engines, along with the company's other unique distinction of having to pay “a $16.4-million fine as a result of what the National Highway Traffic Safety Administration argued was a failure to report the problems to government regulators in a timely manner.”  Even the insurance industry is suing them, not to mention the real victims of these tragedies.  That is some record, and we do NOT mean the musical kind.

But don’t think Toyota is alone on this most recent recall.  Honda has a similar brake fluid problem, and is recalling “an unspecified number of 2005-07 Acura RL sedans and Honda Odyssey minivans.”

But don’t the Japanese automakers are alone either.  U.S. cars are having their own safety problems this month. CBS reports that this week, “Chrysler recalled over 26,000 vehicles with power steering problems while Volvo recalled almost 10,000 cars for problems with airbags.” 

Moreover, “In the last six months GM and Nissan had seven recalls while BMW, Chrysler and Ford had five each. In all, the auto industry has had 56 safety recalls for passenger vehicles in the last six months, according to government data.”

But at least Toyota is trying to let the public know about its car problems.  CBS reports that with regard to the Chrysler and Volvo recalls, “news of the safety announcements were nowhere to be found on those company's websites.” 

And while we're on the subject of drivers in the dark,  “About 8.4 million Ford vehicles that can possibly catch fire remain on the road because of lack of owner information even after the largest U.S. safety recall ever.”  Those earlier recalls - “1992-2003 E series, 1993-2003 F series, 1995-2003 Windstars, 1995-2002 Explorers and 1995-2003 Rangers” – were for leaky cruise-control switches.  NHTSA says “about 60 percent of the 14 million recalled vehicles -- or 8.4 million – have not been brought in for repair by owners.”   The agency:

[S]ingled out used-car owners who may not know whether the vehicles they bought had ever been returned to dealers for needed repairs.

It also urged owners “to watch for potential warning signs of an imminent fire.”  Those signs include a cruise-control system or brake lights that stop working, low brake fluid and the illumination of brake warning lights on the dashboard.

Imminet fire?  Wish ThePopTort could do more to warn drivers about all this, but we're trying.

Mastectomies, Rental Cars, BP, Discrimination, Drugs - and Other News

In no particular order, here are five good stories (good as in “worse is better”) today relating to things we’ve been covering:

Los Angeles County-USC Medical Center has settled with a woman who had a double mastectomy when she never had cancer, because the hospital failed to properly review biopsy specimens.  The only thing more shocking about mix-ups like this is that they keep happening!  And unlike some states, California severely caps compensation to patients with these kinds of injuries - pain, mutilation, trauma. Take it away, Dennis Quaid.  

Consumer groups filed a petition with the Federal Trade Commission asking that rental car companies “start fixing every vehicle with a safety recall before renting them to consumers.”  OK, how many are shocked to learn that a petition like this is even needed, or that “the National Highway Traffic Safety Administration does not have the authority to force rental-car companies to carry out recalls.”  Speaking of recalls, recall the tragic case of Jacqueline Houck and her sister, Raechel, who died because Enterprise failed to carry out a safety recall of the car they rented.  Their brave mother Carol joined the FTC petition.  Read her comment on our earlier coverage of this case. 

For anyone who doesn’t trust BP’s motives in setting up the $20 billion trust fund for victims, here’s something to feed on.  Apparently, the company responsible for the payout is “a fairly remote subsidiary, BP Exploration & Production Inc. (BPEC) -- a Delaware corporation that operates BP's Gulf oil leases.  So if BP's drilling revenues from the Gulf suddenly vanished, so, presumably, would the compensation fund, said Tyson Slocum, director of Public Citizen's Energy Program.”

"This is a very advantageous agreement from BP's point of view," Slocum told the Huffington Post. "Because their big concern is that the Deepwater Horizon incident would result in sanctions that would significantly reduce BP's involvement in lucrative Gulf operations. But if you tie the compensation fund to Gulf of Mexico production, you are helping to guarantee BP's continued involvement in that market," he said.

And in follow up to our coverage of the botched treatment of Shirley Sherrod comes more frustration by victims of U.S. Department of Agriculture race discrimination.  Seems like the administration is pledging to find $1.5 billion to help farmers hit by natural disasters, but the $1.25 billion civil rights settlement to compensate black farmers “for being left out of federal farm loan and assistance programs for years due to racism” is still not funded.  Several deadlines have now been missed.  "At some point, you have to start questioning what is going on here," said John Boyd, head of the National Black Farmers Association.

Also, more trouble for Johnson & Johnson and their dirty plants, with the company now receiving “multiple subpoenas from federal prosecutors”  requesting “’documents broadly relating to both the recent recalls of products made by McNeil Consumer Healthcare and inspections of two of the unit's factories. One of the plants, in the Philadelphia suburb of Fort Washington, Pa., has been shut down since April due to multiple problems and is expected to remain shut until at least next summer.” State Attorneys General are also getting involved, reports the Wall Street Journal. 

Did we miss anything?