Category: Automotive

Takata, Take Two

Posted on | by admin

The big take-aways from the second round of Congressional hearings on Takata airbag inflator ruptures and recalls were:

  • No root causes have been definitively identified and may never be definitively identified.
  • Takata is going to cut back on its production of ammonium nitrate – one of several potential root causes of inflator explosions. There was a lot of focus on this aspect of the issue – maybe it’s too hard to wrap our heads around the idea that often defect issues result from a confluence of root causes? (Manufacturing, materials and design)
  • That driver’s side replacement inflator you dutifully went to the dealership to get in a previous recall has the same damn problem, so you are going back again whenever supplies are available. But don’t worry it will take another seven years for your newish inflator to go bad. Passengers, take cover. Free advice from Congress to consumer: Check weekly with your local dealership!

Beyond that, the afternoon was largely another episode of Safety Accountability Theater. We have to hand it to NHTSA’s new administrator. Mark Rosekind was smoother than a fresh jar of Skippy, thanking every committee member for asking their question, even as they murdered his last name and the name of his agency. He showed a solid command of the details, even signified that regional recalls are dead, and promised decisive action.  NHTSA will, for the first time in its history, be coordinating a massive, national 11-automaker, 34 million vehicle recall. Rosekind also made a strong pitch for more funding, given the agency’s monumental task, with too few people and an insufficient budget that, adjusted for inflation, is 23 percent lower than it was 10 years ago.

The Democrats on the committee took the occasion as an opportunity to promote Reps. Jan Schakowsky (D-ILL) and Frank Pallone’s (D-NJ) The Vehicle Safety Improvement Act, which would close the loophole that allows rental car companies and used car dealers from putting unremedied recalled vehicles back in the marketplace, kill the whole regional recall strategy of which automakers are so fond, give consumers easier access to more complete safety information and require the disclosure of serious injuries and fatalities.

Takata Executive Vice President Kevin Kennedy sustained multiple lacerations during the hearing by falling on his sword. He did, however, defend its propellant chemical and partly blamed the automakers for failing to write design specs that would have forced them to make safer inflators.

Alliance of Automobile Manufacturers President Mitch Bainwol countered with: we just specify performance. The safety part’s up to you. By the by, Takata, where are your ISO 12097-3 tests requiring failure in a controlled manner?

We also heard a little of the consumers-must-do-their-part shtick – a newly popular lament from the manufacturers and the regulators. And consumers do need to take recalls seriously.  What’s missing from the narrative is a large chunk of the reality which is very relevant to the Takata airbag inflator recalls, but certainly holds true for others. For a long time, NHTSA did next to nothing to ensure that recall remedy rates were adequate – there are no benchmarks for recall success. NHTSA did not keep very good track of how recalls were progressing – it took years for them to notice and take action against manufacturers with poor records – if at all.

The regulations do not require manufacturers to do much more than send a first-class letter informing consumers of a defect. They don’t even have to tell the consumer if the defect has caused injuries and fatalities – the safety risks are expressed as hypotheticals. In this age of social media and connectivity, manufacturers have multiple ways to reach consumers – if they want to, and they can give their customers a more straightforward accounting of the defect – if they want to.

It’s been several years since Congress first considered bills to make used car companies and rental companies get the recalled vehicles in their fleets remedied. That loophole remains open for business.  (Support for the issue appears to be gaining some momentum.)

So nobody in charge of recall policy, enforcement or practice has felt much urgency to get recalled vehicles repaired. Add in supply chain issues in which the part you supposedly desperately need isn’t available for months or a year, and if consumers have a bad case of recall apathy, we certainly know who they caught it from.

Bottom line – failure has many fathers – and consumers are not among them: NHTSA for years of lax defect and recall enforcement, and the automakers — who apparently have had no mechanism for or a desire to enforce quality control on their suppliers –and Takata for hiding the extent of problems and issuing rolling recalls.  

What Do the Takata Recalls Really Mean?

Posted on | by admin

Today, the Department of Transportation announced that it will organize the multi-manufacturer recall of 34 million airbag inflators announced by supplier Takata earlier this week. Just three days earlier, the agency took a victory lap, after finally forcing Takata to launch national – not regional – recalls and to work more closely – under the terms of a consent order and the threat of civil fines – with NHTSA to ferret out the root causes.

The story has played out as a win for the agency and another coat of polish on its newly acquired iron fist. And we find little to argue with there. However, at the consumer level, it may not mean much in the short term.

We haven’t seen an episode of High Noon that pitted federal sheriffs against a black-hatted OEM supplier since 2001, when NHTSA issued an Initial Decision – a painful and public prelude to NHTSA compelling an entity to conduct a recall – in the case of Firestone Wilderness tires on Ford Explorers. On October 4 of that year, more than a year after Firestone initiated its first recall for ATX and some Wilderness tires, the agency determined that that Wilderness tires in sizes P235/75R15 and P255/70R16 on SUVs were defective. Less than two weeks later, Firestone officially threw in the towel, and announced a recall rather than contesting the decision.

Under federal regulations, even suppliers have an obligation to file Part 573 defect notices with all of the same working parts as vehicle manufacturers – including detailed chronologies of the defect’s discovery, affected vehicles, and a no-charge remedy plan. To quote the CFR: “In the case of a defect or noncompliance decided to exist in original equipment installed in the vehicles of more than one manufacturer, compliance with §573.6 is required of the equipment manufacturer as to the equipment item, and of each vehicle manufacturer as to the vehicles in which the equipment has been installed.”

Typically, it is the vehicle manufacturer that assumes these obligations. And, back in 2009, when the snowball started rolling downhill, Honda filed the Part 573s, with very sketchy chronologies, and conducted the recalls with varying degrees of success. But as the explanations for exploding inflators kept shifting and problem gathered mass in 2013, with 10 manufacturers launching recalls, Congressional hearings, new deaths and injuries, along with a steady stream of acid press, the pressure had been building on Takata to officially acknowledge the defect and provide more transparency about the causes. Takata filed recall notices in 2013 and 2014. In December, the agency threatened civil fines if Takata did not launch a nationwide recall for inflators that might explode from over-pressurization. Takata basically told NHTSA to stick it – the agency had no evidence to support its demand, and, by the way, you have no power here!

That was it for NHTSA. The safety-free, deal cuttin’ days of former DOT Secretary Ray LaHood and his sidekick NHTSA Administrator David Strickland (ever brothers, now as lobbyists) were over. You may recall the NHTSA-Chrysler showdown of June 2013, over older Jeeps with behind-the-axle, rear-mounted fuel tanks which burst into flames when struck from the rear – especially at higher speeds. NHTSA formally requested that Chrysler conduct a recall, but the automaker had no interest. To avoid a legal brawl, LaHood, Strickland and Chrysler CEO Sergio Marchionne came up with a cosmetic solution – a retro-fitted tow-hitch, which one year later the automaker hadn’t installed on one vehicle. In the meantime, the roadside incinerations continue and in April a Georgia jury awarded $150 million to the family of a 2012 death of four-year-old boy, who died in his booster seat after the 1999 Jeep Grand Cherokee was struck from behind and burst into flames. The airport conference-room recall that the trio cooked up with is still leaving a stench.

Takata has filed four separate Part 573s and here’s what they have told us:

First, after six years of offering revolving root-cause explanations – when anyone bothered at all – Takata concedes that this is a multi-root cause problem involving moisture intrusion caused by leaking seals, the design of the inflator, the airbag, the vehicle, the shape of the propellant, and manufacturing “variability”:

It appears that the inflator ruptures have a multi-factor root cause that includes the slow-acting effects of a persistent and long term exposure to climates with high temperatures and high absolute humidity. Exposure over a period of several years to persistent levels of high absolute humidity outside the inflator, combined with the effects of thermal cycling, may lead to moisture intrusion in some inflators by means of diffusion or permeation. Fraunhofer ICT has identified the possibility in these climates for moisture intrusion into the inflator over time and a process by which the moisture may slowly increase the porosity of the propellant within the inflator. Fraunhofer ICT's analysis also indicates that the design of the inflator and the grain (shape) of the propellant can affect the likelihood that the porosity change will occur, as can manufacturing variability. The results of the Fraunhofer ICT research to date are consistent with the geographic location and age of the inflators that have ruptured in the field and in Takata's testing. Takata's testing also indicates that the design of the vehicle and the design of the air bag module are associated with differences in outcomes.   

And:

Takata is also aware of a potential issue associated with the inflator body internal tape seals on some SPI inflators. During its investigation, Takata observed a small number of tape seal leaks in SPI inflators manufactured prior to 2007. These leaks were discovered during leak testing in 2014, as part of the Takata returned-inflator evaluation program.

 

Second, we got an official count of field incidents: Takata put that figure at 84, if we add the ruptures in each of the four defect notices.

Third, we learned that the recall system sucks – 77 percent (65) of the incidents occurred in vehicles that had already been recalled but not remedied.

But playing chicken with Takata differs from the NHTSA-Firestone standoff in one key respect: Takata cannot directly recall vehicles as tiremakers – which have distinct recall obligations from other OEM component manufacturers – do.

And unlike any recall to come before in the history of recalls, NHTSA will apparently be coordinating the whole enchilada. There is, however, a nifty tie to the Firestone recalls. The agency is tapping a heretofore unused power granted by the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, passed in the wake of the Ford Explorer-Firestone tire crisis. Interesting historical irony for NHTSA scholars. For consumers, that means that the zillions of inflators will pass through three entities: Takata, the vehicle manufacturers and NHTSA. How this plays out we'll have to wait and see. But the days of filing a recall and doing your thing appear to be gone for now.  

NHTSA Denies Toyota Unintended Acceleration Defect Petition

Posted on | by admin

Eight months after a Bristol, RI Toyota Corolla owner petitioned the National Highway Traffic Safety Administration to investigate low-speed surges into Toyota Corollas, the agency has denied the petition, concluding:

In our view, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists or a NHTSA order for the notification and remedy of a safety-related defect as alleged by the petitioner at the conclusion of the requested investigation. Therefore, given a thorough analysis of the potential for finding a safety related defect in the vehicle and in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission and mitigate risk, the petition is respectfully denied.

The Safety Record shares this view. NHTSA’s Office of Defects Investigation (ODI) is unlikely to find a defect. For one, they lack the resources to find an intermittent electronic defect that produced unintended acceleration (UA). Two, ODI does not want to find an electronic defect. After 12 years of investigations – including six petitions filed by consumers (Six! Has any one defect ever prompted that many petitions for investigations? Toyota – another record. Yay, you!), NHTSA has never been able to determine why so many Toyota drivers continue to complain about unintended acceleration. The endless dead-ends and denials have amounted to a deep hole that the agency will never climb out of.

Bob and Kathy Ruginis sought NHTSA’s help after Kathy experienced a UA while parking her 2010 Corolla last June. The vehicle surged forward while her foot was on the brake and crashed into an unoccupied parked Jeep in front of it. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually at higher speeds, since the couple bought the vehicle new in May 2010. Kathy Ruginis, a Catholic school educator, used the Corolla for commuting to her job in Massachusetts. Early in her ownership, she had taken the vehicle twice to the dealership complaining of these surges. The dealership techs drove her car in a circle around a big box store-parking lot and proclaimed that the surges were just the result of downshifting.

Bob Ruginis was not surprised that NHTSA failed to find an electronic source for the malfunction and advance his petition. For one, after the electronics engineer turned the errant Corolla over to NHTSA for testing and asked for the agency’s test protocol, he never received anything from the agency.

“I knew it most likely wouldn’t help me,” he said. “But I hoped it would help some other people.”

 Neither NHTSA, nor Toyota has ever believed a driver’s report about what occurred in a crash. In general, narratives are given no weight if ODI investigators don’t have a pretty good handle on the technical issue already. In addition to Kathy Ruginis’s report, and the affirmation of her passenger in the front seat, she had another witness – the Event Data Recorder (EDR), which showed at the time of the crash that the brake was on, the accelerator was off, but somehow the speed increased and the engine rpms doubled. A Toyota EDR read-out that actually reflects the driver’s and passenger’s account of the crash pretty well is not so common.  

But, for ODI, the EDR is a Rorschach – it means whatever the engineers want it to mean and it always means driver error. However, the agency really had to work to make this reading count against the driver, and for this they turned to the asynchronous nature of the various data points. ODI argued that just because the readout shows the brake on and the accelerator off and the speed increasing at the same time, does not mean that all of those events occurred at the same time. Nonetheless the logic employed to make this a case of pedal misapplication plus late braking is contradictory and tortured.  

 

NHTSA argued that her brake was on at the final data-point read out “proves” that she braked after the crash. However, according to NHTSA, the three data-points showing the accelerator off during the last three of five seconds of the EDR readout shows that Kathy Ruginis rapidly punched the accelerator in the milliseconds between recorded data points. The denial states:

ODI does not believe that the brake switch data recorded by the EDR is consistent with the petitioner's statement that the vehicle accelerated with the brake applied and vehicle testing demonstrated that acceleration would not occur if the brake pedal had been applied with any meaningful force. In addition, although the EDR does not show any increase in accelerator pedal voltage in the final 2.8 seconds prior to impact, this does not mean that the accelerator pedal was not depressed during that time period.

Got that? The brake data is gospel, but the accelerator data is suspect. In short, they called Kathy Ruginis a liar. Chris Caruso, an EDR expert who examined Toyota EDRs as a consultant for the multidistrict litigation economic loss case against Toyota  agreed that NHTSA could not logically or credibly use the data’s asynchronicity to conclude that the driver only engaged the brake after the crash, but that she definitely depressed the accelerator sometime before it.

“We could make the same plausible argument that she was pumping the brakes for the entire five seconds, in between the one-second intervals.” Caruso said.

What is harder to explain, says Caruso, is the absence of a corresponding rise in engine RPMs as the speed of the vehicle doubled in the last two seconds. NHTSA did not address the RPM readings, which showed the RPMs remaining constant at 800 until the last data-point, in which they doubled 1,600. Caruso said that it is impossible for the vehicle speed to increase by 50 percent in 2 seconds leading to the trigger point, while the engine rpms remain at idle. And even if the driver punched the accelerator in-between the 1-second intervals of data collection sometime in the last two seconds, the engine rpms would rise and stay elevated afterwards, because they take time to decrease.

NHTSA’s EDR analysis is “deceiving,” he added.

“She would have to floor it to get that 50 percent increase in throttle. Why don’t the rpms go up?” Caruso said. “If you look at the last two seconds, even if she blipped the accelerator to increase the speed from 3.7 to 5 in one second, the engine rpms cannot recover to idle in that same amount of time. To me, it’s a smoking gun that doesn’t jibe with anything else.”

ODI also pooh-poohed the suggestion that Michael Barr’s analysis of Toyota’s faulty software could provide them some clues of how software could faults could cause UA events not recorded by the engine control module. Barr’s theories were unproven, and applied to a different vehicle with a different electronic system, NHTSA said. Never mind that Barr, a well-known embedded software expert, did something ODI did not – examine Toyota software for the Camry line by line for the plaintiffs in Bookout v. Toyota, a UA case involving a 2007 crash that seriously injured the driver and killed her passenger. Never mind that his detailed explanation of Toyota’s horrible software persuaded an Oklahoma jury in October 2013 to rule against Toyota, awarding the plaintiffs $3 million, before assessing punitive damages and persuaded Toyota hence forth to settle somewhere north of 250 death and injury UA cases since. Just, never mind.

Barr says that shortly after the Ruginis petition became public, he “attempted to contact NHSTA’s Office of Defects Investigation, to ensure they were aware of my relevant work and conclusions.  However, no one from ODI ever reached out to me.”

He also defended the relevance of his work to the task of determining why so many Toyotas run away from their drivers:

"Barr Group's analysis of Toyota’s ETCS-i software was more extensive, both in breadth and in depth, than the software analysis by NASA.  We had access to more software source code than NASA did, and also information about many more vehicle models and model years.  My team of software experts spent over a year pushing the review of Toyota’s engines considerably deeper, he said. “Ultimately, we identified a set of defects in Toyota’s ETCS-i software that NASA specifically worried about in its report but didn’t have sufficient time to find.  We used fault injection testing in a pair of production Toyota vehicles to trigger the defects we found and these tests confirmed that software malfunctions can explain at least some of the reported incidents of sudden acceleration.”

"The evidence supporting my conclusions was documented in full detail in my expert report, which contains more than 500 pages of facts and analysis.  It is my understanding that no one from NHTSA or NASA has ever read this report,” he said. “As I testified in the Bookout trial in Oklahoma in October 2013, the defects in Toyota’s ETCS-i software can be deadly.  As far as I know, these defects have never been remedied by any recall."

ODI did throw the Ruginises a bone. It agreed that: “uncontrolled vehicle accelerations in parking lot environments represent a clear safety hazard to surrounding traffic, pedestrians and even building occupants, as vehicles often accelerate inside of businesses with facing parking spaces where they have caused serious and sometimes fatal injuries.”

But, the good folk at ODI concluded that any possible technical cause would remain a mystery. 

Let’s face it: Jesus, Mary or Joseph McClelland could come to the agency and show ODI investigators unintended acceleration as it happened in real time, and ODI would find a way to dismiss it. In May 2012, two ODI engineers witnessed a 2004 Prius, owned by Joseph McClelland, an electrical engineer and high-ranking government official with the Federal Energy Regulatory Commission, accelerate on its own several times while on a test drive with the owner, without interference from the floor mat, without a stuck accelerator pedal or the driver’s foot on any pedal. They videotaped these incidents and downloaded data from the vehicle during at least one incident when the engine raced uncommanded in the owner’s garage and admonished the owner to preserve his vehicle, untouched, for further research. “They said: Did you see that?” McClelland recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.” Three months later, the agency dumped the investigation. Investigators told McClelland that they weren’t interested because it was an end-of-life issue for the battery and told The New York Times that it wasn’t a safety issue: [NHTSA] also noted that the vehicle “could easily be controlled by the brakes” and “displayed ample warning lights” indicating engine trouble.”

For all intents and purposes, the Ruginis’s Corolla has been parked ever since the crash. Kathleen Ruginis refused to drive the vehicle ever again. Bob Ruginis took it out a few times to be inspected in preparation for selling the Corolla.

“I’ve taken it to a couple of car dealers, and told them about the incident and that this car was investigation and none of them cared. They would all take it from me, and they all gave me pretty much what the car is worth.”

To the Ruginis family, that 2010 Corolla was worthless as a mode of transportation. To NHTSA, the vehicle could have been the start point for an honest examination of electronic malfunction. But NHTSA’s always much more focused on the task of proving everyone and anyone other than themselves wrong. In that way, they are much like Toyota electronics – infallible.

But one day, NHTSA will understand today’s automotive electronics – probably around the time that cars move from self-driving to flying.

GM Escapes Liability

Posted on | by admin

The New York bankruptcy court that oversaw the massive GM bailout in 2009 has dealt what may be a death knell to all claims for ignition-switch related deaths and injuries in crashes that happened before the bankruptcy. After GM’s massive coverup was exposed, some thought the court would surely feel outraged at being tricked into leaving millions of vehicle owners without recourse, but apparently GM waited long enough to make it too cumbersome and costly to undo the damage. The ruling could save GM billions of dollars in personal injury and economic damages payouts – which helps GM pay the lawyers who helped them perpetuate the fraud and use the bankruptcy to shield them.

By way of background, in 2009, GM was hemorrhaging money when the government offered it a lifeline: GM could file for chapter 11 bankruptcy and shed all of its liabilities into a company called “Old GM” while selling its profitable assets to “New GM,” a “new” corporation made up of all the same GM players, with the same products and – it turns out – the same desire to hide lurking defects, only this time backed by federal money. The kicker: New GM would assume the assets free and clear of all successor liability claims, including those for injuries or deaths that occurred even one day before the sale was final on June 29, 2009. Justice is meted out based on a calendar.

The ignition switch defect, while well known in many inside GM, was not easily connected or understood by law enforcement and investigators as the potential reason for loss of control crashes and airbag nondeployments.  Drivers were frequently faulted with the crashes.  Even people involved in their crashes did not realize a defect was to blame.

At least 24 “Old GM” engineers, executives and in-house lawyers, all of whom went to work for “New GM,” had known since 2003 that the defective ignition switch defect was lurking in about 27 million vehicles. But it wasn’t until five years later, in February 2014, that New GM attempted to recall a small portion of the vehicles – after the defect had been outed during discovery in a death case. The plaintiffs’ attorney, Lance Cooper, notified NHTSA that there was more to the story and requested an investigation into the issue.  Cooper represented the family of Brooke Melton, a woman killed when her car lost power and drifted into oncoming traffic in 2010.

New GM’s CEO Mary Barra immediately proclaimed how sorry GM was. As she told the House Committee on Energy and Commerce Subcommittee on Oversight and Investigations in an April 2014 hearing: “As soon as I learned about the problem, we acted without hesitation. We told the world we had a problem that needed to be fixed. We did so because whatever mistakes were made in the past, we will not shirk from our responsibilities now and in the future. Today’s GM will do the right thing.”

More than 140 class actions were filed across the country, alleging that people who owned GM vehicles suffered economic losses, primarily for reduced resale value. These were consolidated into a Multi-District Litigation in the Southern District of New York. Many more cases were filed by families of the deceased or victims who were injured in crashes that occurred before the sale. (Cases involving post-sale crashes with any recalled vehicle and economic claims for vehicles bought after the sale are proceeding in the MDL as planned, with depositions to begin shortly.)

New GM acknowledged that it was liable for incidents that happened after the sale, even for vehicles manufactured and sold by Old GM. It set up a compensation fund, run by Kenneth Feinberg, that agreed to compensate victims whose crashes met certain criteria – for instance, inexplicably, that neither the airbag nor the seatbelt pretensioners deployed – and who submitted all documentation that the crash and/or lack of airbag deployment was likely the result of the defective ignition switch. But GM’s fund excluded many vehicles – including some makes and models covered under the ignition switch recalls.  Feinberg has approved 87 out of 475 death claims, and 157 out of 3,867 injury claims. Although the date for filing a claim has passed, the fund is still reviewing 1,085 claims.

And apparently, GM thinks the “right thing” means being forced to compensate only those people who crashed after it convinced the court to shed its liabilities. New GM refused to pay for incidents that happened, or economic claims for vehicles bought, before June 29, saying those were Old GM’s responsibility.  

“It’s like they have this GM hat. If it says ‘New GM’ on it, they are responsible. If it says ‘Old GM’ on it, they are not,” said Robert Hilliard, co-lead counsel in an MDL. “They’re saying we did this, it’s our fault, but we did it when we were wearing the Old GM hat. Not we’ve got the New GM hat on, so leave us the hell alone.”

Surprising some who thought the court would at least carve out an exception to the ban on successor liability for people who had been injured before the sale, Judge Robert Gerber ruled last week that all of the claims by pre-sale crash victims and most of the claims by economic damages plaintiffs are barred.  

Judge Gerber made several observations that should have been feathers in the plaintiffs’ caps: He found that at the time of the sale, Old GM knew it should issue a recall to owners of about 27 million vehicles with defective switches, which it could easily identify and send notices to. Old GM also knew that people had been injured or killed because of the defect and that more people would be injured or killed in the future. Because Old GM did not issue a recall notice nor inform owners of those vehicles that they might be a creditor who can object to the sale, it deprived the plaintiffs of their Due Process rights.

To the plaintiffs, that should have been enough to void the free and clear provision. Not so fast, the court said. What the plaintiffs lack is proof that the insufficient notice actually prejudiced them. During the bankruptcy sale hearing, about 850 entities objected to the provisions releasing New GM from liability for most claims and making it free and clear of successor liability. The court heard the arguments and rejected them in granting the sale.

“[N]either Plaintiff group has advanced any arguments on successor liability that were not previously made, and made exceedingly well before,” Judge Gerber ruled. “Their principle contention – that they would have won by reason of public outrage, political pressure, or the U.S. Treasury’s anger with Old GM, when they would not have won in the courtroom – is the very speculation that they rightfully criticize. Thus, insofar as successor liability is concerned, while the Plaintiffs established a failure to provide them with the notice due process requires, they did not establish a due process violation. The Free and Clear Provisions stand.”

What Judge Gerber didn’t say was how many of the objectors at the sale hearing were there because they had a vehicle with an ignition switch defect – which is likely none because they didn’t know about the defect.

“That’s the disconnect for me,” said Hilliard. “I really believe that if the families and victims had shown up, and the court had understood the breadth of the recall that should have been issued, the court would not have let the sale go forward.”

The only exception is that the economic damages plaintiffs alleged a new argument that the free and clear provision was overbroad because it precluded New GM’s liability for its own conduct. Thus, the economic damages plaintiffs have leave to file late claims that focus solely on New GM’s conduct after the sale. Given that all of the New GM decision makers were also Old GM decision makers, it’s unclear right now how easily the plaintiffs will be able to disentangle them to rely only on New GM’s conduct in their attempt to proceed.

Judge Gerber already certified the opinion for the Second Circuit. And there’s a chance that Judge Jesse Furman, who is overseeing the MDL, could decide to let the cases go forward anyway, in which case it would still end up before the Second Circuit. But for now, all claims related to pre-sale crashes are barred.

That means no recourse for one of Hilliard’s clients, a man whose pregnant wife died after an ignition switch-related crash in a vehicle not covered by the Feinberg fund. Hilliard said the man told him, “I can totally understand on a normal bankruptcy but when GM deliberately committed fraud and knowingly murdered innocent people destroying the lives of so many, that is just a straight up unethical violation of rights.”

Or for Rose Thompson, the mother of college student Teriel Thompson, who died in September 2006 after her 2005 Chevy Cobalt suddenly veered left on an Arkansas interstate, slid sideways and then rolled over multiple times before landing on the opposite side, where it was hit by another car. The airbag did not deploy, and Teriel, who was just 21, was ejected. Her mother contacted attorney Lance Cooper for representation years later, when the GM scandal came to light. Feinberg denied her claim, saying there wasn’t enough proximate cause evidence to tie it to the ignition switch defect.

“[GM CEO] Ms. Barra said they were going to do the right thing for these people, even the pre-bankruptcy claims. But they set it up so it’s Feinberg or nothing,” said Cooper. “It’s not what GM represented to the public when it said it was going to do the right thing.”

But one group made out really well: King & Spalding, the law firm that represented GM in the Melton case and offered the testimony of an engineer who later admitted to perjury for denying that GM knew about the ignition switch defect, will earn plenty for its representation of GM before Judge Gerber. Ironic that the same law firm that helped perpetuate the coverup is now getting paid to shield them from the ramifications now that they are caught.

If this were a thriller, movie-goers might be disappointed the good guy didn’t quite emerge the victor, but that may be the ending we’ve come to expect.

NHTSA to Tire Consumers: Google It

Posted on | by admin

On Tuesday, the National Highway Traffic Safety Administration amended the Tire Identification Number, the alpha-numeric code used to identify specific tires in a recall. This time, the agency expanded the first portion of the TIN, known as the manufacturer identifier, from two symbols to three for manufacturers of new tires, because the agency is quickly running out of unique two-digit combinations. It also standardized the length of the tire identification number to 13 symbols for new tires and seven symbols for re-treaded tires to eliminate confusion that could arise from the variable length of tire identification numbers, to make it easier to identify a TIN from which a symbol is missing.

These changes will compel tire mold changes – dreaded and to be resisted at all costs by the tire industry. And, NHTSA accommodated tiremakers’ antipathy for changing the molds by setting the lead-time to 10 years into the future. The new rule will take root when today’s molds wear out and need to be changed anyway. With the pervasive mold problem addressed, the agency might have taken this occasion to make some significant changes to the TIN – such as requiring a non-dated code of manufacture, and placing the complete TIN on both sides of the tire – so that consumers could use the TIN to identify a tire that had been recalled.

After all, as the agency pronounced in the Federal Register, the TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances.”

Safety Research & Strategies and the National Transportation Safety Board, which has taken on tire safety as a priority recently, both made these helpful suggestions during the public comment period of the rulemaking. The NTSB pointed out that NHTSA had recognized the importance of determining the full TIN in “identifying a tire for safety recall management; enabling regulators, manufacturers, and safety advocates to process owner complaints; and tracking tire production.” It argued that standardizing the TIN to better distinguish between full and partial TINs rests on the erroneous “assumption that anyone looking for the TIN is aware that passenger tires can have both a full and a partial TIN molded on the sidewalls. It also noted that the date of manufacture code plays a significant role in identifying recalled tires. “Unless an entire tire line is the subject of a recall or investigation, the date of manufacture will often define the scope of an action. Because many tires can be mounted with either sidewall facing outward, placing the TIN on both sidewalls would ensure better access and identification, and NHTSA should consider expanding the scope of this NPRM to include this requirement.” The NTSB suggested that the economic impact could be mitigated by allowing the date code to be laser-etched into the TIN, negating the need to set the date code in the tire mold.

But, the agency said: People! We weren’t trying to fix the broken tire recall system, we just wanted some more plant codes, fer Chrissakes.

Longer version: “Given that we did not propose any changes to the date code portion of the TIN, nor did we discuss or request comment on any potential changes to the date code, such a change may be beyond the scope of this rulemaking. Even if it were in scope, however, we do not believe a change to the date code is necessary for consumers to determine when their tires were manufactured. NHTSA’s tire consumer Web site, http://www.safercar.gov/tires/index.html, explains in several places how to find and interpret the date code. Furthermore, a person should easily be able to determine the location of the date of manufacture on a tire is located either by querying an internet search engine or by asking a tire dealer.”

Shorter version: Google it.

You can tell that NHTSA truly believes that TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances,” by calculating how super effective it has been in the recall process. The last time we looked at return rates over a 10-year period of 1996 to 2006, the average historical rate for tires was about 30 percent – with wide ranges among campaigns. In contrast, vehicle recall completion rates hover in the low 70s.

And, we are compelled to note, the massive and high-profile Firestone Wilderness AT and ATX recalls of early 2000s boosted the tire recall repair average to as high as it was over that particular span. In 2000, the OEM tire failures shouldered the entire blame for the Ford Explorer rollover deaths and injuries. About 20 million P235/75R15 ATX and 15, 16 and 17-inch Wilderness AT tires were recalled. Using a fudge-y guesstimate method, Firestone claimed that it had collected 95 percent of the defective tires. But guess what? Recalled Firestone AT and ATX are still on the road, still being sold and rotated into service, and they are still killing people.

In fact, 45 years ago, when NHTSA’s predecessor, the National Highway Safety Bureau, established the tire recall system, the TIN was the linchpin: In 1970, the bureau noted : “An essential element of an effective tire defect notification system is a suitable method of identifying the tire involved.” But its suitability has always been shaped by the rubber industry, and the needs of consumers with a recalled tire they can’t readily identify has yet to rise to the level of an after-thought.

The rule’s history shows that every time the agency had an opportunity to improve the tire recall system so that consumers or tire professionals could reasonably use it, NHTSA chose to do nothing. Every. Single. Bleeping. Time.  But don’t take our word on it. The Safety Record once spent weeks assembling the rulemaking history of the tire identification number so you don’t have to.

Great Moments in TIN History

1970

The National Highway Safety Bureau begins set-up of tire recall system. Proposes requiring manufacturers to keep tire consumer records and develop a standard identification number for tires that would be molded on both sides of the sidewalls. Industry begins amassing best batting streak since Ty Cobb. Recognizes that the date of manufacture is possibly the most important part of the code, but doesn’t want the consumer to be able to read it. Firestone sez: “tires are not perishable items. Therefore, a conspicuous disclosure of tire age would unavoidably introduce into the marketplace a totally artificial measure of quality unrelated to product performance and effectiveness.”  Agency drops the TIN on both sidewalls part of the proposal, because, it reasoned, under the consumer records part of the proposal, first purchasers of tires would receive notification of defects

1971

U.S. Senator Warren Magnuson, chairman of the Commerce Committee petitions NHTSA on behalf of the independent tire dealers and distributors— to create an independent tire registry to collect the names and addresses of first purchasers and report them to manufacturers along with an agreement that indemnify the manufacturers if the registry failed to uphold the record-keeping regulations. Tiremakers go postal: We don’t want to pay for it and it will ruin the current system, which works just great.

1973

NHTSA tries to establish a universal registration form for tire manufacturers, brand name owners and tire retreaders to provide to their distributors and dealers. Manufacturers crank Government Terror Alert Level to fire-engine Red:  Time and money spent developing their own systems! Wasted forms! Computer chaos!

1974

NHTSA cops out by making the universal registration format optional. It drops the requirement to give a copy to the first purchaser, because manufacturers said that it served no purpose in facilitating recalls.

1980

In response to a petition by the Center for Auto Safety, the agency proposes requiring that the TIN to be molded on the white wall side of the passenger tire, so that consumers could read the damned thing. Industry goes nuts. Uniroyal, for example, says that bringing consumers into the recall process would actually be detrimental to them, because consumers can’t read serial numbers.

1983

NHTSA terminates rulemaking claiming it would not provide any safety benefits.

Congress prohibits NHTSA from requiring independent tire dealers and distributors from supplying manufacturers with names and addresses to first purchasers. Instead, consumers get registrations cards to send in. Tire dealers acquiesce to writing TIN on the form.

1986

Agency determines that tire registration rates suck and proposes a bunch of changes to beef them up:  requiring prepaid postage on the registration forms; requiring dealers to give Uniform Tire Quality Grading Standards information to consumers highlighting the registration process; and establishing a tire registration clearinghouse. Industry refuses to click “Like” button.

1999

NHTSA drops all proposals to require tire dealers to give consumers tire info about the Uniform Tire Quality Grading Standards at point of sale. Move all such information to the well-thumbed pages of the vehicle owner’s manual. Other proposals vanish.

2000

TREAD Act requires NHTSA to improve tire recall process the tire labeling to help consumers identify tires in the event of a recall. Once again, the agency raised the question of placing the TIN on both sides of the sidewall to make it easy for consumers to locate and read.

2001

NHTSA proposes new rule to require complete TIN be molded on both side of the tire, among other format changes. Tiremakers say “Hell no.”

2002

Agency chickens out. Decides not to force manufacturers to mold the full TIN on both sides of the tire. However, does require the TIN to appear on the “intended outboard sidewall” and either a full or partial TIN –i.e. one without a date code—appear on the inside sidewall – perpetuating confusion that the current rulemaking – 13-years later – is supposed to address..

2004

Major mold protest saves the day.  Agency eliminates the phase-in dates to put the TIN on the intended outward sidewall. Instead, manufacturers would have until September 1, 2009 – a concession to you-know-who who complained that it would cost too much to re-work all of the molds. By pushing the date ahead five years, it would give manufacturers time for current molds to wear-out, before their replacement.

2008

Only 38 years after making the TIN a key element of the tire recall identification system, agency notices that it doesn’t actually require tiremakers to list recalled tires by TIN in the mandated Part 573 Defect and Noncompliance Notice. Proposes to close that loophole. Good catch!

2009

Loophole closed.

2012

MAP-21, the Moving Ahead for Progress in the 21st Century Act, becomes law. It requires rulemaking within a year to make vehicle recall information available to the public on the Internet in a searchable database. NHTSA complies. Safety Research & Strategies submits comments requesting that the agency also consider adding a TIN search function to its public Web portal and require tire makers, as well as automakers to maintain the recall remedy status by TIN.

2013

NHTSA’s response to adding TINs to new recall database requirements: No. Congress didn’t make us do that.

In Conclusion

Here’s something you can Google. Anytime the agency says  the TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances,” type  “NHTSA to Tire Consumers: Google It” in the search box, and re-read the section of this blog entitled Great Moments in TIN History. This will remind you that NHTSA’s belief in the importance of the TIN has never been matched by its actions.

NHTSA Opens EQ Investigation into Hercules Tire Recall at Lawyer’s Request

Posted on | by admin

The National Highway Traffic Safety Administration has opened an Equipment Query investigation into a defective Chinese tire sold in the U.S. under different brand names that was recalled by one importer, but not another – even though they share the same distributor.

In March, the agency sent an information request to Hercules Tire and Rubber Company, a subsidiary of American Tire Distributors Inc., to determine if it should have recalled its Hercules Radial A/T in eight different sizes manufactured by the Shandong Yongsheng Rubber Co., Ltd.

Tires that were essentially the same, but sold as Capitol Precision Trac II, were recalled by importer ITG Voma in October. The recall population of 94,890 tires included seven sizes for passenger cars and light trucks.  Both tires were manufactured by Shandong Yongsheng and shared a common green designation, defined by NHTSA as: “tires that are produced to the same internal specifications but that have, or may have different external characteristics and may be sold under different tire line names.” Both were distributed by American Tire Distributors.

The probe was opened at the behest of attorney Michael Cowen of the Cowen Law Group of Brownsville, Texas. (see Texas Attorney Asks NHTSA for Tire Investigation) Cowen represented Krystal Cantu, whose right arm was crushed in a rollover caused when the left-rear tire, Capitol Precision Trac II, suffered a tread separation. The August 2013 crash was a factor in ITG Voma’s decision to recall some Capitol Precision Trac II tires that lacked a nylon cap ply, which made the tires less robust and prone to tread separations. During Cantu’s lawsuit against ATD, Voma and Shandong Yongsheng, a manufacturer’s representative testified that the Capitol Precision Trac II shared a common green tire designation with the Hercules Radial A/T.

NHTSA’s March information request to Hercules, as the importer, manufacturer, or entity that “otherwise introduced for sale in the United States,” sought information on the similarities between the tires ITG Voma recalled and the Hercules Radial A/T, and “why Hercules has not yet made a defect decision and/or decided to conduct a recall of those tires.”  

In February 2013, Hercules recalled seven 10-ply Load Range E tires manufactured by the Shandong Yongsheng Rubber Co., but these tires were not the same size or load range as the Capitol Precision Trac. Hercules said in its defect report to NHTSA that the tires could experience in-service belt and tread separations.

In its latest probe, the agency also asked Hercules to explain why it did not include these tires in that earlier recall.

The EQ’s Opening Resume was a bit unusual, in that it acknowledged that the allegation came from Cowen:

On December 17, 2014, Attorney Michael Cowen of Cowen Law Group wrote to NHTSA alleging that certain Hercules All Trac A/T tires are substantially similar in design, construction, and performance as tires that importer (and manufacturer) ITG VOMA recalled due to a safety defect. NHTSA was requested to investigate.

This is a departure from past practice, in which the agency was loathe to acknowledge outsiders – unless it was to dismiss them in a Federal Register Notice. But, in these current and oh-so-challenging times of serving as a Congressional piñata and media whipping boy, NHTSA’s been forced to change a lot of its past practices. The agency is not letting manufacturers get away with so much blatant flouting of the regs. (Suddenly, filing the legally mandated detailed chronology of the discovery of a defect is very fashionable among automakers notifying NHTSA of a new recall.) NHTSA’s letters to errant manufacturers are getting down-right fiery; fines are bigger, and meted out more swiftly. And the agency has been signaling that the party is so over, directly to lawyers for the defense, and more recently for the plaintiffs.

And maybe, soliciting and acknowledging the cooperation from the attorneys who wrest important information about defects from manufacturers could help NHTSA fulfill its enforcement obligations. Here’s hoping.

The Wrong Fix for the Broken Recall System

Posted on | by admin

Last month, Senators Ed Markey and Richard Blumenthal proposed new legislation that would link car registrations to completing recall repairs. The Repairing Every Car to Avoid Lost Lives (RECALL) Act threatens state DMVs with the loss of five percent of its federal highway funds if they don’t add to their duties checking open recalls for every new and renewed auto registration, and adds to the responsibilities of consumers getting recall repairs done to be properly registered.

The bill requires states to exempt a motorist if the recall notice comes after registration is completed; or, if the manufacturer “has not provided the motor vehicle owner with a reasonable opportunity to complete any applicable safety recall remedy due to a shortage of a necessary part or qualified labor.” The state must also exempt a motorist who demonstrates to the state’s satisfaction that they had no “reasonable opportunity” to complete the recalls, in which case, the state can grant a 60-day temporary registration to give a consumer time to complete the repairs.

U.S. Sens. Markey and Blumenthal have been the Senate’s auto safety-tag team, and we applaud many of their efforts to raise the bar – via proposed legislation or asking pointed questions of federal agencies and manufacturers. For instance, the two have introduced a bill to improve the collection of Early Warning Reporting data. Last week, they also introduced the Used Car Safety Recall Repair Act, which closes a loophole in the current regulations by requiring “used car dealers to repair any outstanding safety recalls in used automobiles prior to selling or leasing.”  But the RECALL bill has serious flaws, and you don’t have to scratch too far below the surface to find them.

“My biggest worries are that it would penalize consumers and shift the burden onto them for the illegal activity of the manufacturers and dealers – and possibly undermine the entire auto safety recall system,” says Rosemary Shahan, president of Consumers for Auto Reliability and Safety. “The timing on this could not be worse, when there are tens of millions of recalled cars on the roads, huge long-term shortages of repair parts, and dealers have not hired nearly enough auto technicians to perform the repairs.”

The American Association of Motor Vehicle Administrators and the Governor’s Highway Safety Association have also come out in opposition to the bill. The AAMVA observed that the act “makes motor vehicle agencies responsible for rectifying the shortcomings of private industry by conditioning customers’ vehicle registration renewal on fixing defective or noncompliant automobiles. This bill shifts the burden and the costs of correcting vehicle defects from the direct responsible party, the manufacturer, to the taxpayers of the individual states, and threatens to withhold federal highway funds from states that do not implement the requirements. States would have to spend significant sums to comply, outlays that will strain already-limited transportation funding and divert highway safety funds from other priority safety programs. Furthermore, the bill assumes the existence of a national, real-time safety recall data base that states could interact with for the most current recall information. No such system exists today.”

Indeed. Complaints to NHTSA gathered on one week in March regarding one manufacturer – Toyota – gives a good snapshot of the typical problems and the high level of frustration among consumers who would like to get their vehicles remedied:

Here’s a cranky 2009 Sienna owner from Kensington, Maryland on March 13:  

Sometime around August 2014, I received a safety recall notice from Toyota.  It mentioned a new safety recall … which supersedes the prior notice ….  This involves the spare tire carrier cable which may corrode due to road salt in cold climate areas, which I understand includes Maryland where I live.  I have called Toyota dealers near me and they keep saying that Toyota has not provided them with the part to repair this.  I tried again today, March 13, 2015, but the answer is the same.  Therefore, I am registering my complaint today and would like to know how soon this safety defect might be taken care of.   (ODI 10694172)      

Or this 2004 Toyota Corolla driver from Dayton, Ohio, who complained to NHTSA on March 17 about the difficulty in completing the July airbag inflators recall:

After contacting the dealer and the manufacturer on multiple occasions, the contact was informed that the parts needed to repair the vehicle were still not available and no estimated time for receiving the parts could be provided. (ODI 10694881)
 

Now imagine you have to get your vehicle registered next week.

The U.S. is not Germany

The bill’s dictates have been compared to the German system, where the Kraftfahrt-Bundesamt, the Federal Motor Transport Authority, operates the Central Vehicle Register.  Like a state department of motor vehicles, the CVR – according to its website – “stores vehicle and owner data on vehicles with number plates. The local vehicle registration authorities and the insurers record and submit data to the Central Vehicle Register in the case of new registrations, changes of ownership, de-registrations, and (technical) modifications” of the nation’s 51.7 million motor vehicles and 6.2 million trailers. It can, and does revoke the registrations of vehicle owners who do not complete recall repairs.

Unlike Germany, the U.S. has more than 50 departments of motor vehicles registering about 254 million vehicles. And unlike Germany, our DMVs are completely separate from safety enforcement of manufacturers. The Central Vehicle Register is under the Kraftfahrt-Bundesamt – National Highway Traffic Safety Administration’s German counterpart, which counts among its recall duties:

  • provides the manufacturer with the data of the relevant vehicle holders stored in the Central Vehicle Register.
  • undertakes to inform the vehicle holders; this service has to be paid for by the manufacturer.

In Germany, vehicle registration and recall enforcement operate out of one shop with a completion target of 100 percent.  The KBA also monitors recalls if the defect presents a serious safety risk:  “The purpose of this monitoring activity is to ensure the notification of all the relevant vehicle holders and a complete elimination of the defects.”

U.S. regulations hold the manufacturer responsible for gathering the identification data, informing its customers and offering the repair – and there is no particular target for success. The notification regulations are antiquated and there are no benchmarks for acceptable repair rates and no incentive for manufacturers or the agency to improve.

 Moral Hazard

Using state DMVs to inform consumers of open recalls has value. At the end of the day, it will probably raise the recall repair rate – but the bill goes beyond mandating that consumers are informed. The result will come at great expense to consumers without placing any of the responsibility or burden where it belongs: on those who created the problem in the first place. As the AAMVA noted, it simply transfers manufacturers’ recall notification failures onto already beleaguered state Department of Motor Vehicles and consumers.

The auto industry has been tripping over itself to develop advanced safety systems, vehicle-to-vehicle communications and driverless cars. When it comes to stuffing as much shiny technology as possible under one hood, it’s all Jetsons. When it comes to telling a consumer that the product you sold them for thousands of dollars has a major safety problem, then it’s the turn of the twentieth century. Stamps, snail mail – if absolutely pushed, a phone call. Manufacturers still use outdated R.L. Polk registration data snapshots to identify consumers in a recall. A whole big data cottage industry devoted to securing current vehicle owner information has sprung in response – mostly for the use of people who want to sell you things. But it certainly could be used by entities that want to fix their mistakes.

The recall regulations only require that manufacturers conducting campaigns to contact “registered owners determined from state motor vehicle registration records, augmented with corporate records by first class mail. The regulations outline the characteristics of the envelope, noting that this is a SAFETY RECALL NOTICE. The letter itself must provide, at a minimum: a clear description of the defect; an evaluation of the risk to motor vehicle safety; a statement of the measures to be taken to obtain the remedy; a statement that the defect/noncompliance will be remedied without charge; a statement of the earliest date on which the defect/noncompliance will be remedied; and a description of the procedure to be followed by the recipient of the notification in informing NHTSA whenever a manufacturer, distributor, or dealer fails to or is unable to remedy without charge such defect or failure to comply.

It does not require the manufacturer to tell you that the defect has already caused deaths and injuries – if that is the case. (The U.S. Consumer Product Safety Commission routinely includes such information in recall announcements.) Further, there are no requirements involving specific efforts manufacturers must make to notify hard-to-locate owners.

Safety Research & Strategies has its own vision for a more robust recall system that requires NHTSA to institute benchmarks for acceptable recall completion rates, require Recall or Audit Queries for recalls that fall below that benchmark, and empowered the agency to level civil penalties specifically for failure to achieve the minimum benchmark. (See Improving the Recall System for the 21st Century)

Practical Matters

If drivers must take their vehicles in for annual inspections and emissions tests before renewing their registration, why not add open recalls?  We have identified a passel of practical problems.

For the state:

  • If the consumer is off the hook if he or she receives the recall notice after the registration notice, how will the DMV know? Recalls are always announced long before consumers get notices – sometimes its weeks or even six to eight months before a consumer gets the actual letter. How will the DMV know what the manufacturer mailed out and when a consumer received it?
  • Who is in charge of defining the motorists “reasonable efforts” to get the recall done? Is it incumbent now for state DMVs to write these definitions? Who will write the rules for what constitutes “demonstration” of these “reasonable efforts?” Will it vary from state to state?
  • If the flow of registrations, and even more importantly for state coffers, the flow of registration fee collection is interrupted by a motorist’s inability to complete a recall, what does that do the department of transportation budgets?
  • What happens if the repair parts take more than two months to become available? Does the DMV write rules and institute procedures for issuing multiple temporary registrations?
  • Where is the federal money to support this mandate that will force already under-funded and over-worked DMVs to add new responsibilities, new tasks, and integrate a new computer system?

No carrot in this bill, just sticks.

For the motorist:

  • How does the motorist “demonstrate” that he or she did not get a notice? This is a very common problem. How do you prove a negative?
  • How will the motorist “demonstrate” that the parts are not available? Will the manufacturers or dealers have to put their availability problems in writing to give the consumer something to take to the DMV? Will manufacturers and dealers inform the DMV directly? Will the motorist have to take time to get this proof from the dealer and stand in a bunch of lines to convey it to the DMV?
  • Repair parts are not simultaneously shipped to every dealer in a state. Will the motorist be forced to call multiple dealers in search of recall repair parts to complete his vehicle registration?
  • What happens if the repair parts aren’t available for six months – as is the case with Takata airbag inflators – or you can’t get a timely appointment? Will the motorist have to go back to the DMV for more temporary registrations?

 

Collateral Consequences:

Driving an unregistered vehicle in some cases, in some states, is actually a crime. The penalty in the most benign scenario is a fine.

  • What if you can’t get your vehicle repaired, can’t convince the DMV that it’s not your fault and can’t get your vehicle registered? What if you have to use your car to get to work and you get pulled over?
  • Is a recall now an occasion to impose a criminal record or fines?
  • Will this disproportionately affect motorists who are also poor and members of minority groups?
  • Will it raise your insurance rates?
  • Will it increase your liability in a crash caused by the defect?
  •  Will it hamper you in civil action against a manufacturer?

 

Limitations

This bill is also beset by some limitations:

In some states, you renew your registration every two years—or have an option to renew every four years. If the recall notice comes after registration, this method would not pick up an open recall until multiple years later. How does this improve the system?

DMV’s are supposed to use NHTSA’s VIN look-up tool to identify if a particular vehicle has an open recall. What if the recall is for an after-market component or a tire? That VIN look-up does not contain information for those recalls. Is it okay to get your vehicle registered with recalled tires?

We can all agree that drivers are responsible for taking care of the wear and tear on their vehicles that results from normal and foreseeable use. Manufacturers are responsible for selling you a defect-free vehicle. Manufacturers are responsible for launching a recall within five days of discovering a vehicle defect. Manufacturers are responsible for notifying consumers about those defects and making those repairs available.

Let’s not confuse these issues.

 

Honda May Set the Record for the Longest Running Rolling Recall

Posted on | by admin

Seven years after Honda issued the first Takata airbag recall, it continues to add more vehicles to the tally. Its never-ending rolling recall – a scheme automakers use to quietly keep adding more makes and models as deaths and injuries keep occurring – has gone from 3,940 model year 2001 Accords and Civics to up to at least 8 million vehicles, spanning a giant chunk of its fleet. And that number is soft because it is impossible to break down Honda’s web of overlapping recalls, varying explanations, and numerous recall extensions to determine an actual number.

Despite Honda’s public statement that it is “committed to addressing the needs and concerns of our customers and making clear that we stand behind the safety and quality of our products,” the beleaguered automaker continues the secrecy that led to the massive Takata airbag recall.

Honda just announced that it is recalling another 104,871 driver’s side airbags with Takata inflators. This latest recall (15V153) is an extension of the earlier nationwide recall (14V351) of 5.4 million vehicles. Honda’s March 16 Part 573 recall and noncompliance report explains how it discovered earlier this month:

“Through a process of matching Takata airbag inflator part numbers to individual VINs based on factory production records, as a method of data confirmation, Honda discovered that a total of 88,549 units of the 2008 Honda Pilot should have been included in 14V351. Additionally, Honda identified certain 2001 Accord (5,454 vehicles) and 2004 Civic (10,868 vehicles) that had not been properly identified by VIN as being produced for the US market, and is adding those vehicles to 14V351.”

Honda’s explanation of a small data collection error sounds straightforward: During our effort to conduct a thorough investigation, we learned that a smallish number of specific vehicles were left out of the list. But this isn’t exactly the story of a quick turnaround. After Honda discovered this error, but before it reported it to NHTSA, the automaker launched a “multi-million dollar print, digital and radio advertising campaign” which urged owners “to take immediate action to check for open recalls to replace Takata airbag inflators.” The list of affected models in this blitz never mentions the vehicles in this newest recall.

 In a March 12 press release, John Mendel, Executive Vice President of the Automobile Division of American Honda Motor Co., Inc., proclaimed:

“The goals of this campaign are to save lives and prevent injuries. Honda hopes that this new consumer information campaign will bolster our existing and continuing efforts to reach our customers and maximize the vehicle repair completion rates associated with recalls to replace Takata airbag inflators. These ads are a strong call to action from our company designed to break through the clutter, grab the attention of customers driving affected vehicles, and urge that they get required repairs as soon as possible.”

Left off the press release’s summary of affected models? The 2008 Pilot that Honda already knew it was going to recall. Also missing was any indication that Honda would be adding more VIN numbers to the 2001 Accord and 2004 Civic recalls – which might have “urged” customers who had already checked their VINs and thought they were safe, to check again. There’s no mention of the latest recall on Honda’s website.

Vehicle owners using Honda’s VIN-look-up database, are almost always informed that their vehicles are part of one of the 2014 recalls. But often, a specific vehicle has also been among those recalled in one of the previous campaigns between 2009 and 2013, before the cover-up of the widespread danger blew wide open. And there is overlap in many of those recall populations, confusing the situation even more. So, customers who had never received a notice have no way of knowing that their vehicle has been under recall for years. They can’t know their own vehicle’s recall history unless they check the VINs and build dates included in all 10 Honda recalls.

And The Safety Record has another bone to pick: In touting December’s Recall 14V351 as a nationwide campaign of 5.4 million vehicles, Honda has encouraged the misperception that this represents the sum total of the U.S. recall population. But this month the automaker added more. And by the way, Recall 14V351 replaced driver’s side airbags. Several recalls of passenger side airbags are still in effect, covering about 2.7 million vehicles.

We’ll believe Honda’s claims of transparency when they start giving the public accurate numbers of how many vehicles and when they were actually recalled.

FHWA Grades Guardrail on a Curve

Posted on | by admin

Last Friday the 13th was a very unlucky day for taxpayers – that was the day the Federal Highway Administration announced that we, the people, would continue to reimburse states that choose to install an energy-absorbing guardrail end terminal that has been maiming and killing us. That announcement was bundled in a package of technical papers designed to explain away the last of eight tests on the safety of the ET-Plus energy-absorbing guardrail.

On January 27, an assemblage of distinguished persons from Trinity Industries, the manufacturer of the ET-Plus, the FHWA, and the fourth estate gathered at the Southwest Research Institute test track in old San Antone to bear witness to exactly how the end-terminal has been failing in the field. The Geo Metro, with a dummy in the driver’s seat, thundered toward a guardrail end-terminal and struck it at a frontal offset. The rail began to ribbon out through the chute, until it got jammed and folded in half. The Metro rotated and was speared by the folded rail.  (Watch the video)

But what are you going to believe – a bunch of technical papers with tables, photos, charts, percentages and words like “occupant impact velocity values” or your own lyin’ eyes?

 Obviously, Trinity’s BFF prefers that you bury your head in its reports. So we did. And there, The Safety Record Blog found something even more amazing than the stark video record of a weaponized guardrail. The Safety Institute has written a long letter to FHWA Acting Administrator Gregory Nadeau outlining the technical trickery employed to pass an obvious FAIL.  

For those of you with no time to spare for a detailed takedown, here’s the Reader’s Digest version:

The mission of the FHWA was to somehow conclude that an ET-Plus energy-absorbing end terminal folding in half and spearing the vehicle really did pass the NCHRP Report 350 occupant risk criteria and that driving the door inward like the point of fang, which directly struck the dummy’s femur wouldn’t have seriously hurt anyone.

Seriously.

The NCHRP Report 350 Occupant Risk criterion states: “Detached elements, fragments, or other debris from the test article should not penetrate or show potential for penetrating the occupant compartment or present an undue hazard to other traffic, pedestrians, or personnel in a work zone. Deformations of, or intrusions into, the occupant compartment that could cause serious injuries should not be permitted.”

First order of business was finessing the English language. In English, “penetration” means: “the action or process of making a way through or into something.” In the FHWA lexicon, however, “penetration” only occurs if the process makes its way through something. In other words, a prostate examination doesn’t involve any penetration if the doctor wears latex gloves.  The photos, however, showed that the driver’s side door was pockmarked with holes on the exterior and interior, which the report called tears. In other words, the iceberg didn’t penetrate the Titantic – it just caused a little tearing.

The idea of potential penetration was not addressed.

The second order of business was to attack the serious injury issue. For this, the FHWA had to finesse the science. Since they didn’t instrument the dummy to truly measure the injury potential, they had to work it backwards, post-crash. With the aid of Dr. H. Clay Gabler, a respected scientist from Virginia Polytechnic Institute and State University, the FHWA used existing crash data sets and static intrusion measurements to show that a driver exposed to the crash conditions this test would have been unlikely to have been at risk of serious injury from the folded rail impact to the driver door.

Occupant compartment intrusion is at its greatest at the moment a vehicle strikes a narrow object. This is called dynamic intrusion. After the crash, the vehicle structure partially bounces back, so the amount of intrusion post-crash, called static intrusion, is significantly less. The video shows the door being driven inward so far that it pushed the steering wheel into the right side of the dash. This is a much bigger intrusion than the 6.75 inches the testers, the Southwest Research Institute, measured afterwards. By the way, according to the photos, the static intrusion appears to have been measured with the door open – another way to minimize the intrusion measurement. 

With its 6.75 inches in hand, the FHWA turned to the National Automotive Sampling System- Crashworthiness Data System (NASS-CDS) databases in an attempt to quantify the risk of a serious injury. Instead of sorting the data to consider injuries in similar type crashes – narrow object crashes – they diluted the population by looking broadly at a subsample of crashes with the same amount of intrusion, such as rollovers or vehicle-to-vehicle crashes. But narrow object crashes have a much higher potential for serious injury, because the crash force is concentrated at a focal point, instead of being broadly distributed.

One person who understands this very well is Dr. H. Clay Gabler. Dr. Gabler co-authored a wonderful 2013 technical paper, in which he used NASS-CDS data to specifically examine guardrail end-terminal side impact crashes. Yes, one can, if one cares to, sift NASS-CDS data for specific crash-types – including guardrail strikes. (That paper looked at crashes in which the side was the first impact, rather than the second impact, like that in the recent ET-Plus test failure.) When you look for what you are looking for, you may find something very different. For example, in Injury Risk Posed by Side Impact of Nontracking Vehicles into Guardrails, Dr. Gabler found:

Intrusion appears to be a major risk factor in guardrail-side crashes, particularly terminal crashes. Crashes directly involving the occupant compartment (SHL of passenger compartment) were far and away the most dangerous, accounting for only 3% of all nontracking guardrail-side crashes yet almost 40% of total injuries.

 And:

For terminal-side crashes, driver-side impacts had significantly greater risk of injury compared with passenger-side impacts. Side crashes involving an end terminal were substantially over represented in driver injuries. End terminal contact occurred in about 25% of all guardrail-side crashes but represented almost 70% of driver injuries.

As for where the occupant might have sustained injury, the FHWA took the opposite tack. Instead of looking broadly for potential injury to the head, torso, arm or upper leg, the analyzers only looked at possible injury to the lower leg. They went looking below the knee, even though Dr. Gabler noted that the dummy took a direct hit to the upper leg. In fact, in burst of candor, Dr. Gabler conceded in his analysis:

My conclusion is that the risk of serious injury cannot be discounted simply because the impact is to the legs.  An AIS 3 femur fracture could occur as a result of an impact to the upper legs and would be considered a serious injury.

That’s the formula – look for the wrong things in the wrong places, the wrong way – and Voila! You didn’t see what you saw. PASS!!!

The federal agency had long treated l’affaire Trinity as a nuisance. In 2012, when competitor Josh Harman made allegations of an undisclosed design change to the ET-Plus that caused it to fail in the field injuring and killing motorists, the FHWA took pains to soothe nervous state highway engineers. When Trinity finally admitted to the agency that it had in fact altered the design in 2005, but just forgot to mention it, the agency said: “That’s okay. Just give us your seven-year-old tests and we’ll call it even.” When the American Association of State Highway and Transportation Officials asked the FHWA to study ET-Plus field failures, the agency sternly reminded the group that it hadn’t made this a priority, so that would just have to wait.  When journalists asked questions, the FHWA passed off the kerfuffle as a dispute between business competitors.

The agency has had to exert itself a bit more forcefully in the wake of an October federal jury verdict which found that Trinity defrauded the government when it decided not to tell the FHWA about that design change, as required by federal regulations. But neither a finding of fraud, nor the revelations that Trinity failed to disclose the design change deliberately, as memorialized in emails in which company principals talk about it, nor a crash test in which the energy-absorbing end terminal did exactly what it is doing in the field, can deter the agency from ensuring no harm comes to itself or Trinity Industries.

Another branch of the U.S. Department of Transportation tried this. It didn’t end well.

The National Highway Traffic Safety Administration aggressively shilled for Toyota, hired experts and contorted science to show that Toyota Unintended Acceleration could only be caused by a confused old lady, a jammed floor mat or a sticky accelerator pedal. Toyota’s still profitable, but it became notorious as the first automaker to plead guilty to a criminal fraud charge and the plaintiff’s lawyers – not NHTSA — finally ripped the cover off the technical problem. Toyota is now settling death and injury cases. NHTSA’s reputation has been shattered and agency principals have taken regular beatings on the Hill and elsewhere, forcing them to finally make automakers do things. 

We are watching the FHWA hurtling to the same destination.  

 

FHWA Breaks Out Rulers, Still No Idea Why Guardrails Fail

Posted on | by admin

One of the most important lessons for federal agencies caught asleep at the wheel in a safety crisis is: do everything you can to validate your earlier, poor decisions that led to the crisis. Spare no expense at proving yourself right, while appearing to take a stern stance against industry. By no means should you ever focus on the field failures.

Thus we get yesterday’s Federal Highway Administration report on the controversial ET-Plus energy-absorbing guardrail end terminal, purporting to show that its most recent tests of the highway device are valid, and that there is only one version of the ET-Plus. The report, Task Force on ET-Plus 4” Dimensions, should be viewed as a precursor to the FHWA declaring there is nothing wrong with the ET-Plus, and that it was right all along to ignore the manufacturer’s failure to disclose important dimensional changes to the device, in violation of federal regulations.  

It elides the central question: What is causing the ET-Plus to fail in the field, leading to injury and deaths? When a vehicle strikes a guardrail, the rail is supposed to be extruded through this type of energy absorbing end terminal into a flat metal ribbon that curls away from the vehicle. Some versions of the ET-Plus fold into a spear that penetrates the vehicle and causes severe harm to vehicle occupants.

For those who have not been following the Trinity saga: In 2012, Joshua Harman, the owner of a competitor company, alleged that Trinity Industries, a Dallas-based manufacturer of roadside safety equipment, had altered the critical dimensions of its ET-Plus energy-absorbing end terminal. Trinity officials made the change in 2005, as revealed in internal company memos, to save money on labor and materials, and deliberately did not inform the FHWA, which certifies that highway safety equipment has been properly tested and has not been altered in design or manufacture. Harman sued Trinity on behalf of the federal government under the qui tam provisions of the False Claims Act. In October, a federal jury found Trinity had defrauded the government and awarded trebled damages of $175 million. 

The conclusion of the trial forced the FHWA – which previously responded to the allegations as insignificant fallout from a business dispute – to take action. It ordered Trinity to re-run the high-speed crash tests, and a couple of months ago the Southwest Research Institute (SwRI) conducted eight such tests. All went well until the last run, where the guardrail jammed in the feeder chute and folded in half, almost penetrating the GEO Prism. This is what the FHWA has to make go away. Some had already criticized the tests because they did not include a low-angled impact condition that mimicked the field failures. They have also alleged that Trinity – in recognition of the problem – made further undisclosed changes to the ET-Plus around 2012 to improve its performance. 

Yesterday’s Task Force on ET-Plus 4” Dimensions is a survey of the dimensions of 1,048 guardrails measured in five states. The 15-page report answered four questions:

  • Are there multiple versions of the ET-Plus 4” guardrail end terminals on the roadways? 
  • Were the crash-tested devices representative of the ET-Plus devices installed on the roadways? 
  • Do dimensional variations affect the performance of the ET-Plus device? 
  • Did the crash tests apply worst-case test conditions? 

The FHWA answers are: yes, they are representative; yes, the right size guardrail systems were tested; no, we don’t know if changing the dimensions affects the field performance; and we don’t have to test the worst-case scenario, so there.

Here are the reality-based answers: 

The sample, described as “for all practical purposes, a random sample,” is not a random sample. In statistics, your sample is random or it is not. There is no “for all practical purposes” category of randomness. Also, the survey could not control for date of manufacture – since only one state, South Carolina, kept records. And apparently those records weren’t all that good, because the measurers were out looking for “shiny” guardrails as a date-of-manufacture measure.

Surely, the guardrails tested by SwRI were representative of some installed in the field, but that doesn’t exactly get to the first and only important question: Do the dimensions affect performance?

And for that answer, we’ll quote the task force: “The task force could not determine, based on the data or material it reviewed, whether or not dimensional variances beyond the design tolerances, either individually or in combination, would affect the performance of the ET-Plus device.” 

Really? Then why the frig were you spending so much time on our nation’s highways measuring guardrails with rulers?

Finally, what are manufacturers required to test for? According to an authority no less than the FHWA itself:  

“The developer should also carefully choose which version of the device to be tested. If a number of different sizes are proposed for use, then the “worst case” conditions, if predictable, should be tested. It may be that “worst case” conditions are not obvious and more than one version of a device will need to be tested. The FHWA Office of Engineering is will to review a proposed test program to assist in determining an adequate number of tests to fully qualify a device and its variants.”

The FHWA has been issuing and re-issuing this guidance since 1997. It would be nice if agency officials followed their own advice.

We have dead bodies and severed limbs from close encounters with ET-Plus energy-absorbing end terminals. No amount of measuring how many angels can dance in the exit gap is going get the agency or Trinity around that rather graphic evidence.

U.S. Senator Richard Blumenthal (D-Conn.), who has done his best to keep the heat on the agency, issued a brief statement that nicely sums it up. So we’ll give him the last word:

“As demonstrated again today, FHWA’s guardrail testing has been consistently dumbfounding and deficient. FHWA repeatedly relies on guesswork, unsupported assumptions, and arbitrary choices. The agency neglected key measurements, rejected critical manufacturer information and completely ignored devices used in New England and the Northeast. FHWA’s lack of transparency and persistently-flawed methodology leaves the fundamental question: Are the 200,000 ET-Plus devices on our roads safe? After years of delay from FHWA, months of insufficient and outdated testing, failure to analyze real-world data, and lack of transparency, we need answers from DOT and we need them now.”