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.
October 4, 2013
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.
October 2, 2013
Last week, a consortium of safety groups and advocates decided it had had enough of the delay tactics in publishing a final rule establishing a rear visibility standard and sued the Department of Transportation.
“We are going through the motions of trying to put pressure on the system to cough out the rule,” says attorney Henry Jasny of Advocates for Highway and Auto Safety. “We’ve got a new Secretary of Transportation, and to help him along we figured we’d get the court involved.”
The petitioners before the U.S. Court Of Appeals’ Second Circuit in New York includes three organizations – KidsAndCars, Advocates for Highway and Auto Safety and Consumers Union – and two New York residents who have backed over their children – Sue Auriemma of Manhasset and pediatrician Greg Gulbransen of Syosset. The 2008 Cameron Gulbransen Kids Transportation Safety Act was named for two-year old Cameron Gulbransen, who was killed when his father accidentally backed over him in the family’s driveway. It required the agency to issue a Final Rule amending Federal Motor Vehicle Safety Standard (FMVSS) 111, the rearview mirror standard, to, for the first time, define what a driver sees in the rear when backing up to detect pedestrians immediately behind his or her vehicle. The law forced the agency to address a significant design flaw – especially in SUVs – of expanded blind zones caused by the vehicle’s height and bulk. Dramatic pictures from KidsAndCars shows as many as 62 children arrayed directly behind an SUV that would be unseen by driver checking the rearview mirrors.
[flashvideo file=video/KAC_62Children30.flv image=”video/KAC_62Children30_Preview.jpg” /]
The original statutory deadline was February 28, 2011, but the Final Rule has been delayed four times, and now is on track to be completed four years after the deadline. In one of his last acts, former Secretary of Transportation Ray LaHood sent another letter to Congress delaying the issuance of a Final Rule until January 2015. (The new Secretary of Transportation, former Charlotte, North Carolina Mayor Anthony Foxx, started in July.)
September 27, 2013
So, if you bluff your way out of handing over legitimate discovery after the case settles, do you really owe the plaintiff’s attorney $2.6 million? That’s the story Goodyear may be telling in its appeal of a November sanctions order in the Arizona G-159 tire tragedy otherwise known as Haeger v. Goodyear, now in its eighth year of litigation.
When we last left the case, attorney David L. Kurtz, who represented Leroy and Donna Haeger, sought damages from Goodyear on a separate but parallel track (see The Wages of Fraud). In June he filed a seven-count, 153-page lawsuit, in Arizona State Superior Court, seeking punitive damages via a jury trial for five years of delay and deception in the original product liability action. But the history of Goodyear, the G159, and the Haeger case is so long and sad, we’re going to start from the beginning.
In June 2003, Leroy and Donna Haeger, along with their passengers, Barry and Suzanne Haeger, were seriously injured when the right front G159 tire on their Spartan Gulf Stream Coach RV failed, causing a rollover. The G159 and a Class A motorhome had a lousy marriage; the tire design was prone to overheat on RVs that typically travel at greater than 65- mph speeds for extended periods. Goodyear knew that from its internal testing – but, loathe to miss a market-share – it promoted the match successfully in the 1990s and 2000. Eventually, though, the G159 and RVs produced numerous lawsuits when the tires failed, injuring and killing motorhome occupants. The Haegers were among them, and in 2005 they filed suit. The action was torturous, with more than 1,000 pleadings. Kurtz had asked for all internal testing regarding the G159, and Goodyear responded by employing a tactic that it had used – with varying degrees of success in other cases – turning over as little as possible, and swearing to the court that it had no more. The Haegers settled in 2010.
In June 2010, Kurtz learned from The Safety Record Blog about a $5.7 million plaintiff’s verdict in another G159 case, Schalmo v Goodyear. At trial, the blog reported, Schalmo’s attorneys presented Goodyear documents including internal heat and speed testing and failure rate data showing that Goodyear knew the G159 was improperly approved for 75 mph continuous highway use. Kurtz began corresponding with Basil Musnuff, formerly of Roetzel & Andress and formerly Goodyear’s national coordinating counsel, to determine if Goodyear had withheld such tests in Haeger. Eventually, Musnuff conceded that Goodyear had, but wasn’t obligated to turn over any more than its NHTSA compliance test results.
August 28, 2013
It took six weeks of near-daily asking, but the U.S. Consumer Product Safety Commission has finally allowed a statement on its actions regarding home elevator entrapment hazards to trickle out of the bedrock that is 6B (the section of the Consumer Product Safety Act that allows manufacturers to control the flow of information from the CPSC.):
“The agency has an active and ongoing compliance investigation regarding the safety of residential elevators and the entrapment hazard they can present,” the CPSC said.
This “active and ongoing” compliance investigation emanates from a March presentation that Atlanta attorneys Andy Cash and Dave Krugler made to the CPSC staff on behalf of the Helvey family, whose six-year-old son suffered a severe head injury after becoming entrapped in a home elevator on Christmas Eve, 2010. The Helvey’s elevator was a National Wheel-o-Vator, now owned by Thyssenkrupp. The CPSC has jurisdiction over elevators used in residential settings as a consumer product. They are not subject to any mandatory federal standards, only industry-written voluntary standards, which may or may not have been adopted by states as a legal requirement.
And as part of its official statement, the CPSC also said this:
“While CPSC investigates the role and responsibilities of manufacturers and installers when it comes to the safety of residential elevators, owners of residential elevators should take steps to ensure children do not have unsupervised access to in-home elevators.”
Michael and Brandi Helvey strongly refuted any suggestions that parents are to blame – the classic manufacturers’ response when their mis-designed or mis-manufactured products start causing harm in the marketplace. They had been scrupulous in installing gates on all the stairs, styrofoam covers on the sharp stone corners of the fireplace, childproof kitchen cabinet locks and a front door deadbolt to ensure Jacob couldn’t get out.
August 20, 2013
The NHTSA has published a Final Rule on Early Warning Reporting and recall requirements, and we are sorry to say that it misses the mark on a number of fronts. But – it certainly is a very traditional approach to auto safety. NHTSA’s most significant safety steps forward are almost exclusively at the behest of Congress, and the gaps in this bill reflect that Daddy-Didn’t-Make-Us-Do-It mind-set.
These amendments, weaker than they should have been, are the result of 2012 Moving Ahead for Progress in the 21st Century Act, (MAP-21, for short) MAP-21 is the first major highway funding authorization bill since the 2005 Safe, Accountable, Flexible Transportation Equity Act – a Legacy for Users (SAFTEA-LU). The comprehensive bill, among other things, could have fixed some significant problems with recall process and made the system more useful for its intended audience – consumers. Instead, NHTSA nibbled at the edges, and, if history is any judge, it will be another decade at least, before the agency makes more substantive changes – or Congress intervenes.
The New Requirements
NHTSA was considering satisfying the MAP-21 dictate to make recalls Internet-based and searchable by Vehicle Identification Number (VIN), by requiring manufacturers to submit the VIN ranges of recalled vehicles directly to the agency to augment its current consumer search interface, which allows users to look up recalls by vehicle make and model, or by the recall campaign number. Frequently, a recall may not cover all vehicles in a particular model or model year, but ones manufactured in specific plants or in specific date ranges. Instead, the agency decided to require each manufacturer of large volume light vehicle and motorcycle manufacturers to offer their own recall look-up websites, which includes a VIN field.
August 5, 2013
Well, the agency’s done it again. No longer can reporters call a $17.3 million civil penalty against a manufacturer the “largest fine in agency history.” Nope, now it’s the new normal. This time it was Ford who got rapped with NHTSA’s multi-million dollar automaker swatter, over failing to recall 2001-2004 Ford Escape and Mazda Tribute vehicles to correct an earlier recall repair to the accelerator cable that actually exacerbated the original problem.
Did you follow that? If, not, don’t worry. We’re gonna lay it out in all of its glorious detail.
Like just about everything NHTSA does these days, the path to the fine follows a long roundabout route that reaches its crescendo in a high-profile death. In this case it was Saige Bloom, the 17-year-old driver of a 2002 Escape who died in an unintended acceleration crash in Payson, Arizona on January 27, 2012. Bloom was driving her new used car home, with her mother following in another car, after they purchased the Escape. Bloom lost control of the vehicle, which rolled over. Bloom died of her injuries in the hospital.
Clarence Ditlow, executive director of the Center for Auto Safety, which petitioned the agency to open a Recall Query after Bloom’s death, says that the monetary penalty didn’t go far enough.
“To me, if there was ever a case for a criminal penalty this was it. It meets the requirements of the TREAD act – there was a death,” Ditlow said “In fact, there have been at least three deaths. Who knows how many there are, in reality? There’s an 8-year gap between the first recall and the fine.”
But, as these things tend to go, there won’t be anything as shocking as a criminal prosecution, just a blip on the bottom line. Ford denied any responsibility in the settlement agreement. To quote:
July 29, 2013
A new study simulating carbon monoxide levels in detached and manufactured homes commissioned by the U.S. Consumer Product Safety Commission shows that that operating a generator for 18 hours is likely to result in high CO exposures whether the generator is in the house or the garage; and that generators that have been modified to limit CO emissions using a shut-off mechanism or other technology can significantly reduce exposure compared to generators without emissions controls.
Last September, our blog Home Use Generators: Dangerous and Behind the Curve documented the rising incidence rate of CO poisonings linked to the use of home generators as extreme weather events and an aging power grid result in more and more prolonged outages. The agency’s response has been to closely track the data and promulgate a stronger warnings rule. Heightened hazard language has done little to dissuade homeowners from putting portable generators in locations that can create significant health risks for home occupants.
The simulation study authors noted that CPSC has recorded 755 deaths from CO poisoning associated with home generators, from 1999 through 2011, with nearly three-quarters of those occurring between 2005 and 2011, and many of which occurred during power outages.
July 11, 2013
On Christmas Eve 2010, three-year-old Jacob Helvey tried to take the small National Wheel-O-Vator elevator in his Atlanta home to follow his mother Brandi, who had gone to the second floor to momentarily move some laundry. The Helveys are protective parents who didn’t allow their son to play in the elevator, so Jacob had never taken it by himself before. He accidentally entrapped himself between the hoistway door, which in home elevators, is a swing-type door that resembles any closet or room door, and the accordion-style door that encloses the elevator itself. Once that outer door closes, it automatically locks – a safety feature to ensure the hoistway door cannot be not opened while the elevator is in operation. It’s an old design that was common in small commercial buildings when elevators had attendants, and is still used today in home elevators.
[flashvideo file=video/BrickmanAnimation.flv image=”video/BrickmanAnimationPrevew.jpg” /]
Animation by Dennis Brickman, Engineering Systems, Inc.
Helvey, at 3-feet-2-inches and 31 pounds, was situated with his back against the accordion door, and his head turned sideways in its valley. Brandi could hear a commotion downstairs and summoned the elevator to check it out. As the elevator rose, and re-leveled, Jacob’s body fell through the space between the sill and the elevator car. When it stopped, the elevator was on Jacob’s back, with his head above the sill, compressed for 10 minutes while his mother, Brandi, pried the door open and a neighbor and police used a shovel and 2 by 6 to ease the elevator off his body He suffered brain damage. Jacob, now five and a half years old, is slowly progressing, say his parents Brandi and Michael.
June 26, 2013
T-Minus three and counting before the rollercoaster ride that is the tenure of Department of Transportation Secretary Ray LaHood careens to a stop. But, not before he did one last handstand for the crowd.
With the National Highway Traffic Safety Administration and Chrysler on a collision course over a recall to remedy the aft-of-the axle fuel tank design of the early model Jeep Grand Cherokees and some Jeep Liberty SUVs that is prone to explode into flames in a rear impact, LaHood, donned his super-hero tights and flew to what he imagined to be the rescue.
Now, most backroom deals attempt to stay on the QT. But, Ray LaHood, never one to miss an opportunity to pat himself on the back, could not be silent. He gave David Shepardson of The Detroit News the scoop: Six days before Chrysler would have to formally respond to NHTSA’s request that Chrysler recall 2.7 million 1994-2004 Jeep Grand Cherokees and 2002-2007 Jeep Liberty SUVs, Ray got Chrysler Group CEO Sergio Marchionne on the blower and said something like, “Look here, old man, no one takes safety more seriously than Ray LaHood and we’ve got to figure this Jeep thing out!”
Chrysler had heretofore demonstrated a very public unwillingness to recall those Jeep models, based on a shaky statistical analysis that threw every model on the wall it could think of to make the pre-2005 Jeep Grand Cherokee (before they moved the tank) look not-so-horrible. On June 9, LaHood drove from his home in Peoria, Ill; Marchionne flew in from Italy and David Strickland, ever playing Jimmy Olsen to LaHood’s Superman, flew from D.C. to Chicago. The trio converged at the Federal Aviation Administration building at O’Hare Airport for a “tough, hour-long ‘frank’ meeting,” according to Shepardson’s story.
As reported by Shepardson, Marchionne dispatched some engineers the next day to D.C. to come up with “the outlines” of a remedy with NHTSA. In public, the confrontation appeared to build, encouraged by business and auto journalists who seemed excited by the prospect of Chrysler sticking its finger in the government’s eye. Just as the showdown drew nigh, the automaker announced that it would implement a “voluntary campaign” to add trailer hitches to some older models.
Ray could not contain his enthusiasm for the remedy: