Category: Automotive

While You Were Out …

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We’re all familiar with the Friday afternoon news dump – release something controversial at close of business on the last day of the week. Don’t leave reporters much time for digging or tracking down interview subjects, and hope everyone is too busy livin’ for the weekend to pay attention. The holiday news dump is a variation on this theme and last week, as Americans were preparing to grill hotdogs and wave sparklers, some big news broke out: Graco added 1.9 million infant carriers to an earlier recall of 4.2 million safety seats for harness buckles that were nearly impossible to unlatch, making it the largest child seat recall in U.S. history. NHTSA released some after-the-fact testing and another Special Order related to a dubious customer satisfaction campaign related to rear-impact Jeep fires. GM found yet more vehicles with a bum ignition switch that needed to be recalled and laid out its compensation protocol for past victims of its malfeasance. Head below for the details:

Graco Harness Buckle Recall

Five months after Jennifer Timian of the NHTSA’s Recall Management Division sent Graco a blistering recall acknowledgement letter reaming out the manufacturer for minimizing the safety hazard of harness buckles that do not unlatch, Graco has surrendered. It added 1.9 million infant carriers to an earlier recall of about 4 million convertible and booster seats with a harness buckle that was so difficult to unlatch, that consumers reported the need to cut their children out of the seat.

Graco’s Feb. 7 Part 573 Notice of Defect and Noncompliance did a 180 in tone and substance from its original recall notice in February, in which the child safety seat-maker made it clear that it would rather eat ground glass than concede that harness buckles that become stuck by design or contamination could present a safety hazard in an emergency:

While Graco and NHTSA have not reached an accord over the nature or severity of this  issue, Graco in an abundance of caution has agreed to submit this 573 report and engage in a recall for the Subject Child Restraints.

It reluctantly recalled about 4 million convertible and booster seats, including Cozy Cline, Comfort Sport, Classic Ride 50, My Ride 65, My Ride w/Safety Surround, My Ride 70, Size 4 Me 70, Smartseat, Nautilus, Nautilus Elite, and Argos 70 models. But, Graco declined to recall an additional 1.8 million rear facing infant seats. 

 

This time, Graco’s phrasing was more careful. While the word “defect” was never whispered, Graco’s memory of the first recall was all soft-focus:

Based on its discussion with NHTSA, Graco determined that a safety recall was warranted with regard to forward-facing toddler and harnessed booster car seats due to the probability that, and in addition to the ergonomic issues noted above, the physical orientation and use patterns of those seats with older children increased the potential for foreign material to interfere with the buckle mechanism over time. This in turn could make extraction of the child occupant more difficult in an emergency situation, thereby increasing the risk of injury.

This is what is alleged to have happened to Leiana Marie Ramirez, who died in a vehicle fire three days before her second birthday, strapped in a Graco Nautilus child safety seat. Her mother  Samika Ramirez was southbound on Arroyo Seco Parkway in South Pasadena, when Samika pulled her Nissan Altima to the side of the divided highway, suspecting that she had a flat tire. Another driver, who hadn’t noticed the stopped Altima, struck it in the rear, touching off a fire. According to the police reports, Samika tried to unbuckle her daughter, but could not release the harness. The flames engulfing her car were too intense, and onlookers pulled Samika Ramirez out of the car. The Ramirez family filed a civil lawsuit against Graco in October 2012, as NHTSA was opening an investigation into the problem. At the time of the recall, Graco had not reported this lawsuit to NHTSA, as it is required to do, under the Early Warning Reporting regulations.

Graco really had no choice but to widen the recall. NHTSA was threatening to go to an Initial Determination if Graco didn’t recall the infant carriers as well. And when the agency is ready to go to the mat, a manufacturer can count on lots of negative news stories about its products and its corporate behavior. That’s perhaps, more costly to the bottom line than a recall.

Chrysler Jeep Wrangler Fires

In other holiday news, the agency has issued a Special Order to Chrysler demanding to know when in the heck it was going to initiate the trailer hitch remedy it grudgingly agreed to implement more than a year ago after former Transportation Secretary Ray LaHood and former NHTSA administrator David Strickland cut a deal with Chrysler CEO Sergio Marchionne to avoid a legal struggle. One year after Chrysler filed its Part 573, not one Jeep has been remedied, and at the rate Chrysler is going, it will take it nearly five years to implement it. The agency has taken umbrage:

For many owners, a recall remedy deferred by parts availability easily becomes a defect remedy denied. Moreover, additional delays in implementing this recall will inure to Chrysler’s benefit at the expense of vehicle owner safety. Although NHTSA acknowledges that recall campaigns may have low completion rates for any number of reasons, the agency has no intention of allowing Chrysler, or any other manufacturer, to delay recall completion to the detriment of safety.

Our readers may recall that NHTSA and Chrysler were on a collision course last spring over the unfortunate tendency of older Jeeps with behind-the-axle, rear-mounted fuel tanks to burst into flames when struck from the rear – especially at higher speeds. The Center for Auto Safety had been petitioning NHTSA for a Jeep recall since November 2009, when it formally requested that the agency open an investigation into fuel-fed fires in Jeep Grand Cherokees from the 1992-2008 model years. The advocacy group alleged that the plastic fuel tank’s placement and the lack of adequate shielding – similar in design to the infamous Ford Pinto – made it more vulnerable to rupture or leakage from rear-impacts and in rollovers.

In August 2010, the agency granted the CAS petition and opened a Preliminary Evaluation. In June 2012, ODI bumped up the investigation to an Engineering Analysis Chrysler was pretty adamant that it didn’t see a problem here, and NHTSA was equally insistent that something be done. NHTSA formally requested that Chrysler conduct a recall, and with the deadline for a formal reply looming, LaHood, Marchionne, and Strickland met in Chicago and came to a compromise.

Chrysler agreed to outfit 1.5 million, 1993-1998 Jeep Grand Cherokees and the 2002-2007 Jeep Liberty SUVs with trailer hitches, installed on vehicles not already so equipped “provided the condition of the vehicle can support proper installation.” Chrysler agreed to inspect vehicles with aftermarket and Chrysler-designed tow hitches “to assess whether the hitch and surrounding areas show evidence of sharp edges or other puncture risks. For those vehicles with after-market hitches, Chrysler will replace it with a Chrysler tow hitch “provided the condition of the vehicle can support proper installation.” In closing the Engineering Analysis, the agency said that it “had no reservations” about the trailer hitch “fix.”  Chrysler described it in its Defect and Non-Compliance Notice as “an incremental improvement” to safety in low-speed rear impact crashes.

These Special Orders, (coming so regularly now, we don’t know if they are that special any more.) are signs that NHTSA is trying mightily to acquire a spine. But this one, in particular, shows why the agency has a long way still to go.

After the Secretary of Transportation cuts the deal, ODI questions the effectiveness of the remedy in a meeting with Chrysler.

The automaker tries to allay these concerns by providing “drawings of the hitches and a limited set of test data.” When ODI questions the sufficiency of those offerings, Chrysler says it won’t do anything else.

NHTSA is then forced to conduct its own tests. And if a report about those crash tests can be believed — eight rear impact crash reconstruction tests conducted from August 2013 to January – at speeds of up to 40 mph, all is well.

When NHTSA shares it glad tidings about the tests with Chrysler, NHTSA finds out that Chrysler had waited until December 2013, to select a hitch supplier and actually placed an order in late January 2014. The first run of hitches wasn’t actually produced until May 14, and Chrysler wouldn’t have all its parts stockpiled until next month.

Basically, Chrysler’s actions might be construed as a chronic middle finger to ODI.  And the Special Order? Pretty wimpy compared to some of the zingers coming out of the Chief Counsel’s office these days.

CAS, which has tirelessly championed this issue, rightly points out that its consumers who are getting the shaft. The tests, while nice, fall short of those the agency did the Ford Pinto of the 1970s, and short of today’s FMVSS 301 fuel tank integrity test, which requires a 50-mph 30 percent offset from a 3015 pound moving barrier with low front end — more severe than the ones NHTSA for the Chrysler tow-hitch “fix.”

In the meantime, CAS reports, four people have died and two have been seriously injured in rear-impact Jeep collisions since Chrysler announced its remedy last June.

Ignition Switch Nightmare Continues

GM celebrated the holiday week, as they do every week since Marietta, Georgia attorney Lance Cooper broke the news that General Motors knew it had a defective ignition switch in the 2005-2007 Cobalt and other models for at least a decade, by announcing an expanded recall. Chrysler also announced that it was adding 696,000 2007-2009 Chrysler Town & Country minivans and Dodge Journey SUVs to its 2011 ignition-switch recall of 196,000 Journeys, Caravans and Town & Country vehicles due to ignition keys that could slip from the “run” to “accessory” position, shutting down the engine, and the power steering and airbags with it.

On Monday of the holiday week, the GM recall ballooned to 8.4 million vehicles globally. This compelled Time journalists, bored with the sheer repetition of ignition recall, after ignition recall, after Congressional hearing, after document dump, after revelation that yet another GM insider warned them about this defect years ago, are forced to come up with ridiculous fun facts about the fiasco, such as: “The recalled vehicles could wrap around the Earth more than four times and The longest time between recalls hasn’t even been longer than the World Cup. Funny stuff! (Remember when Time was relevant?)

GM also announced its compensation plan for owners of ten Chevrolet, Daewoo, Open/Vauxhall, Pontiac and Saturn vehicles with a death or injury claim for a crash that occurred before December 2014. One key case killer: airbag or seat belt pre-tensioner deployment. Any evidence of either in a crash and the claim is ineligible. What technical support does GM have for drawing its bright line in that particular place? Kenneth R. Feinberg, Administrator of the GM Ignition Compensation Claims Resolution Facility, couldn’t answer that question at his holiday week presser.

 

Litigating the Goodyear Way

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Earlier this month, the Goodyear legal team was prepared to argue before a judge in the Philadelphia County Court of Common Pleas – in essence – that a 2007 Customer Satisfaction campaign to replace 400,000 P215/70R14 tries sold in the U.S. under 23 different names was confidential business information.

This assertion was never put to the test in court. But it’s another one of Goodyear’s litigation tactics designed to turn the discovery process into the two-dimensional version of a waterboarding. Delay, delay, delay. Deny, deny, deny. Goodyear is all about full-throated declarations about the non-existence of evidence and its legal team does not flinch in making them to a judge. In Walden v. Goodyear, Safety Research & Strategies obtained non-existent documents via garden-variety research methods and if you want to read them, click here.

The claim arose in Walden v. Goodyear, a case that involved the catastrophic failure of a Douglas Xtra Trac P215 70/R14. On July 26, 2010, Cynthia Eure was driving her van westbound on the Pennsylvania Turnpike, when her right rear tire suffered a tread separation. The vehicle departed the highway and rolled over.  Five-year-old Tashi Walden was ejected and died of his injuries; two other passengers in the van were injured, but survived. Eure’s failed tire was among those that are part of the customer satisfaction campaign. Continue reading →

NHTSA’s Message to the Defense: Call Us Before We Call You

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This week, while heads were rolling out the doors of the RenCen (GM headquarters) in downtown Detroit, the Chief Counsel of the National Highway Traffic Safety Administration was laying down the law for defense lawyers at a Chicago legal conference.

Amid the presentations at the American Conference Institute’s 7th Annual Summit on Defending & Managing Automotive Product Liability Litigation devoted to defeating class-actions, the liability of autonomous cars and one of our personal faves –tire aging (with a shout-out to SRS’ Sean Kane!), was a warning from the government.

First, Chief Counsel O. Kevin Vincent lulled them with a feel-good “rah-rah-ree” paean to industry. And then, he made the hair on the back of their necks rise: A manufacturer’s obligation to report a defect within five days of its discovery is the law, and after a long hiatus from doing its job, NHTSA intended to take “an aggressive stance” in enforcing it.

The first offense line in the discovery of a defect was not the Office of Defects Investigation, Vincent said. It was the manufacturers themselves.

“We don’t have analysts, but your clients do. You all have ability to find these defects,” he said.

A manufacturer cannot delay a defect finding, while a safety problem meanders through an internal process involving multiple committees. It cannot hide its knowledge behind a wall of attorney work product and attorney-client privilege. It cannot wait until it’s gotten the supply chain ready to implement the recall.

And it better not wait until after it settles a plaintiff’s case for big bucks. The TREAD Act obligated NHTSA to “follow up on civil litigation that sends up red flags,” he said.  And they’d be looking for signs of foot-dragging in large civil litigation settlements. Not right away, certainly. Civil actions take years, he said. (This gives the safety problem plenty of time to fester.) How much of a settlement was enough to catch NHTSA’s attention? Vincent wouldn’t name a figure. Continue reading →

SRS Sues Florida DOT for Guardrail Docs

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Safety Research & Strategies, an automobile and product safety research and consulting firm based in Rehoboth, Mass. filed an open records lawsuit in Florida state court, alleging that the state’s Department of Transportation violated the Florida Public Records Act when it withheld documents pertaining to its relationship with guardrail manufacturer Trinity Industries pending a review by the company.

The lawsuit, filed today by Florida State Representative Matthew L. Gaetz  (R-Dist. 4) asks the Circuit Court of the Second Judicial Circuit for Leon County to compel the FDOT to release the materials SRS requested on February 10,  associated with inquiries, investigations, and communications between FDOT and Trinity regarding the design, manufacture, failure, purchase and testing of Trinity ET-Plus guardrail systems. SRS also asked for documents related to any motor vehicle accidents involving ET-Plus and consumer complaints about the safety of the system.

The Dallas, Texas-based manufacturer, a globally dominant producer and seller of guardrail systems has been under fire since 2012, when a competitor, SPIG Industries, of Bristol, Va. charged that sometime between 2002 and 2005, Trinity modified the design of its guardrail end terminals, causing it to perform poorly in crashes and injure and kill occupants in striking vehicles. These allegations have been the subject of numerous news stories abroad and in the U.S., including the Florida media. Continue reading →

ABC Exposes Broken Tire Safety System

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Yesterday, ABC’s Nightline and Good Morning America took two issues that Safety Research & Strategies has been chipping away at for a decade, and gave them big play: the broken tire recall system and tire age. Producer Cindy Galli and investigative reporter Brian Ross, working with reporters at local ABC affiliates, bought recalled and very old tires, told victims’ stories and skewered the Rubber Manufacturer’s Association.

The stories raised a number of key issues:

• The tire recall system doesn’t work: Recalled tires aren’t always caught by retailers and there is no quick, easy or efficient way for any consumer or tire technician to check the recall status of a tire.
• Aged tires are sold and put into service unknowingly because the date code is buried in the Tire Identification Number, and expressed in a non-standard format. Tire age recommendations by vehicle and tire makers are not well known to service professionals or consumers.
• The tiremakers’ trade group, the Rubber Manufacturers Association (RMA) has conceded that the tire recall system does need improvement, but continues to maintain that tire age has no bearing on safety, and has fought off regulations to keep old tires off the road.

ABC highlighted the National Transportation Safety Board’s first tire safety investigation into a February crash that killed two and injured seven members of the First Baptist Church in New Port Richey, Florida, when a two-year-old left rear recalled BF Goodrich tire suffered a tread separation. The tire had been recalled in July 2012. The NTSB is also investigating a second fatal incident involving an aged tire. With its investigative powers and advisory role to other regulatory agencies on safety policy, the NTSB’s recommendations have the potential to be a game-changer. Will the National Highway Traffic Safety Administration listen? Continue reading →

Safety Research & Strategies Sues FHWA for Guardrail Documents

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Safety Research & Strategies, an automobile and product safety research and consulting firm, has sued the Federal Highway Administration for the public release of documents regarding the safety of guardrail end terminals used on highways nationwide. The ET-Plus model end terminals, manufactured by the Dallas-based Trinity Industries, have been allegedly linked to deaths and severe injuries, leading state and federal highway officials to question their efficacy and safety.

The civil lawsuit, filed in U.S. District Court, alleges that the FHWA violated the Freedom of Information Act by improperly withholding records and failing to respond to two separate administrative appeals on the failure to release documents pertaining to the agency’s interactions with Trinity and with the American Association of State Highway and Transportation Officials. SRS originally sought the documents in November and January. 

Guardrail designs have evolved since the 1960s. Earlier designs used blunt ends that acted like a spear, penetrating the vehicle occupant compartment in a crash. The turned-down twist design of the 1970s buried the exposed ends, but acted like a ramp in a crash, causing vehicles to rollover. Today’s preferred design on some highways is the Energy-Absorbing End Terminal, which absorbs the crash energy, bends the end terminal away from the vehicle, and extrudes it through a slot into a flat metal ribbon. In the early 1990s, Texas A&M designed the ET-2000 in cooperation with the Texas Department of Transportation. Originally manufactured by Syro, Inc., the ET-2000, a variant of the Energy Absorbing End Terminal design, addressed some of the safety failures of earlier guardrail designs. The FHWA first approved the ET-2000 in the early 1990s, and its field performance was satisfactory. Continue reading →

Melton Family Charges GM with Fraud; Asks for Sanctions

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The parents of Brooke Melton, who died in March 2010 crash caused by a well-known ignition switch defect, returned to a Georgia state court, charging General Motors with fraudulent concealment and perjury in the civil liability case that was settled in September. And, just for good measure, they’ve filed a sanctions motion, via their attorneys Lance Cooper and Jere Beasley for discovery abuse and spoliation of evidence.

The Melton case has unleashed a world of hurt on General Motors – an investigation by the National Highway Traffic Safety Administration, Congressional oversight, class action lawsuits and general opprobrium. The company knew for nearly a decade that a loose ignition switch in six models – including the 2005-2007 Cobalt – could move from the “Run” to “Accessory” or “Off” position, turning off the power steering, anti-lock brakes and disabling the airbags, before recalling 1.6 million vehicles in North America. At least 13 deaths have been linked to the defect. The decade-long narrative of what GM knew, when it knew it, how it responded to the problem – or not – included the revelation that one of the obstacles to pinpointing the defect was a design change to the ignition switch that GM originally blamed on the supplier, but no change in the part number – a huge No-No.

In the face of a document showing that the Cobalt’s lead design engineer Ray DeGiorgio signed off on the new ignition switch without assigning a new part number, GM has since admitted that he may have lied under oath. Continue reading →

Markey Calls for NHTSA Transparency

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Documents released Wednesday by Massachusetts Senator Edward Markey show that Wisconsin State Police came up with the same two-and-two as NHTSA’s Special Crash Investigation team during its 2007 investigation of a 2005 Chevy Cobalt crash that led to two deaths.  Too bad neither NHTSA nor GM thought they added up to four.

On October 24, 2006, Megan Ungar-Kerns, 17, was at the wheel of her 2005 Cobalt, returning from a trip to Walmart on a rural Wisconsin highway, when her vehicle suddenly drifted off the roadway at about 60 mph. The Cobalt hit a raised driveway and sailed through the air about 60 feet, before striking a telephone pole and two trees. The trio was not wearing their seatbelts and no airbags deployed. Natasha Weigel, 18, and Amy Lynn Radebaker died of their injuries. Ungar-Kerns survived with permanent injuries.

A crash investigation report issued by the Wisconsin State Police in February, noted the October 2006 GM Technical Service Bulletin about inadvertent power loss due to the ignition switch moving from the run to accessory position. They determined no other cause of the crash:

“The two front seat airbags did not deploy. It appears that the ignition switch had somehow been turned from the run position to accessory prior to the collision with the trees,” the report stated.

Markey released it and a few other documents that GM submitted to NHTSA, as part of the Death Investigation (DI), during a transportation appropriations hearing held by the Committee on Commerce, Science and Transportation. DOT Secretary Anthony Foxx was the sole witness. The report didn’t add much new to the known narrative, but spotlighted legislation he has sponsored with Connecticut Senator Richard Blumenthal requiring manufacturers to submit more detailed information to NHTSA in the event of a fatal crash.

The Early Warning Reporting System Improvement Act “would require NHTSA make the information it receives from auto manufacturers publicly available in a searchable, user-friendly format so that consumers and independent safety experts can evaluate potential safety defects themselves,” according to a Markey news release. Continue reading →

EWR: Elective Warning Reports – When Manufacturers Don’t Report Claims

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Last week was a case of déjà vu all over again, to quote Mr. Yogi Berra, as NHTSA, and one of its “regulatory partners,” General Motors, faced their Congressional interlocutors, for the second performance of Safety Accountability Theater since 2000, when Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act. Fourteen years ago, it was the Ford Explorer/Firestone tire fiasco that set all those hands a-wringing. Five years ago, it was Toyota Unintended Acceleration. Now, its GM ignition switches.

These come-to-Jesus gatherings were supposed to be obviated by the creation of the Early Warning Reporting (EWR) system. A major component of the TREAD Act, EWR requires manufacturers to submit reams of death, injury, property damage, warranty and other data to the government on a quarterly basis. It’s an honor system that depends on truthful reporters.

More than a year ago, SRS discovered three death and injury claims that had not been reported through EWR, and sought out NHTSA to confirm this apparent lapse and determine NHTSA’s policy toward manufacturers that did not submit reportable injury claims. As is usually the case when we try to help our favorite federal agency, SRS got crickets. And, as is usually the case in that circumstance, we submitted a Freedom of Information Act request to find out what they did about the information we gave them, and the agency’s policy for ensuring that reportable claims were getting into the system.

As is usually the case, NHTSA said that it had practically no information to share. As is usually the case, SRS called B.S. filed an appeal, and when that failed, took it to the U.S. District Court. And, as is usually the case, NHTSA found more responsive materials.

Last week, U.S. District Court Judge signed a Settlement Agreement between SRS and the DOT in which the government paid our legal fees. As is usually the case. Continue reading →

The GM Hearings – Our Take

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Missouri Senator Claire McCaskill opened the second day of hearings into the General Motors ignition switch defect and the National Highway Traffic Safety Administration’s response to the issue by forging the strongest ties yet between the revelations that GM had hidden the defect for years and the civil litigation system.

McCaskill repeatedly (along with other U.S. senators and representatives yesterday and today) acknowledged the public debt to Lance Cooper, the Marietta, Georgia lawyer who represents the family of Brooke Melton, the 29-year-old woman who died in 2010 when the ignition module of 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, and Melton died of her injuries in the crash. Cooper’s dogged pursuit of GM materials through the discovery process showed that GM knew about the problems for years before launching a recall that only covered some of the affected models.

The ensuing avalanche of press led to a larger recall, and a government probe, and the April hearings.

But before the crush began, Cooper formally requested that NHTSA open a Timeliness Query, based on everything he had learned. And, it’s a good thing that McCaskill gave Cooper some credit, because to this day, NHTSA has not acknowledged his letter in any way. Not a phone call, not an email, not a letter. The bubble. Continue reading →