Raymond Paul Johnson Publications - Civil Litigators - Los Angeles, CA

Raymond Paul Johnson
Cory G. Lee
Raymond Paul Johnson, A Law Corporation
2121 Rosecrans Avenue, Suite 3400
South Bay Los Angeles
El Segundo, California 90245

I. INTRODUCTION

Our clients, Bulent and Anne Ezal, planned lunch at a small restaurant near Big Sur. As Bulent eased his Toyota Camry into a parking space near the restaurant, the vehicle suddenly shot ahead, careened over a steep cliff and smashed into the surf seventy-five feet below. See Figure 1. Miraculously, Bulent suffered few permanent physical injuries. However, his wife Anne died, a horrifying death.

As further discussed below, Toyota of late has admitted that unintended accelerations can be caused by "sticky gas pedals" and/or "all-weather floor mats" that can jam the pedal. Here however, as in many other reported runaway accelerations, the Ezal's Toyota did not have all-weather floor mats, nor the specific gas pedals identified in Toyota's Press Releases. What then happened?

This article explores that question, the history of runaway accelerations, pivotal issues essentially disregarded by Toyota and other manufacturers, the likely reason for runaway acceleration, and discovery techniques for getting at the root cause of this deadly defect.

II. THE HISTORY OF UNCONTROLLED ACCELERATIONS

A. The 1980s - Audi 5000

In 1978, Volkswagen began selling the first Audi 5000s in the United States.^[1] Sales were strong, with sales of the Audi flagship doubling in its first seven years in the U.S. market. These initially popular vehicles, however, had a recurring problem: Uncontrolled Acceleration.

From 1978 to 1987, consumers reported over 1500 crashes involving sudden acceleration of Audi 5000s, with 400 reported injuries and seven fatalities.^[2] Many of the crashes were similar: The car was idling with the automatic transmission in "park"; the driver shifted into "drive" or "reverse"; and the car, suddenly and without warning, wildly accelerated and could not be stopped before hitting cars, trees, walls, or people.^[3]

One of those killed was six-year-old Joshua Bradosky.^[4] He died when an Audi 5000, driven by his mother, surged forward, crashing him through a garage and pinning him to the garage wall.^[5]

Audi's response? Essentially: The car is not defective; the drivers are.^[6] Audi's public relations staff accused the drivers, emphasizing that "maybe people are putting their foot on the wrong pedal."^[7]

The response by the National Highway Traffic Safety Administration ("NHTSA"): The car is not defective; the drivers are.^[8] In 1989, NHTSA completed its investigation into "Sudden Acceleration Incidents" ("SAI"), concluding "most SAI probably involve the driver unintentionally pressing the accelerator when braking was intended."^[9] In short, despite the increased frequency of sudden accelerations in certain model vehicles, and the driver (in virtually every incident) reporting "foot on the brake" rather than accelerator, NHTSA concluded it was all merely the result of the driver pressing the wrong pedal.^[10]

Despite this ultimate "finding" by NHTSA, as a result of prior work by trial attorneys, journalists, safety advocates, and consumers, the Audi 5000 had been recalled several times to correct problems that NHTSA itself acknowledged could cause sudden acceleration.

In 1982, in a move shockingly similar to today's Toyota headlines, NHTSA forced the recall of the Audi 5000 because the driver's floor mats could cause sudden acceleration.^[11] Later, the placement of the brake pedal was blamed for some sudden accelerations, and the Audi 5000 was recalled again for repairs.^[12] In 1987, NHTSA identified defects that could cause "engine surge" and demanded the recall of some Audi 5000s yet again.^[13] Finally, that same year, the Audi 5000 was recalled to retrofit an automatic shift lock to prevent "unexpected, sudden acceleration, without prior warning."^[14] Audi touted this final recall as the solution to most of the sudden accelerations incidents.^[15]

With NHTSA's investigation into "Sudden Acceleration Incidents" closed, and most unintended accelerations attributed to driver error, NHTSA made no further recalls of the Audi 5000. Long after the recalls, however, consumers continued to report runaway accelerations with the Audi 5000, even on vehicles with all recall repairs.^[16]

B. The 1990s - Ford Motor Company

In the 1990s, consumers began to report that automobiles with popular cruise control systems had runaway accelerations. Ford Motor Company absorbed much of the criticism, with numerous lawsuits filed against it, and multiple NHTSA recalls related to sudden acceleration.^[17]

Unlike Audi's problem with the Audi 5000, Ford's runaway acceleration problems crossed into many models and various brands: Aerostars (NHTSA Recall ID No. 00V425000); Contours (NHTSA Recall ID No. 99V194000); Escapes (NHTSA Recall ID No. 00V210001); Explorers (NHTSA Recall ID No. 03V280000); F-Series Trucks (NHTSA Recall ID No. 99V062001); Focus Hatchbacks (NHTSA Recall ID No. 99V346000, 00V302000); Tauruses (NHTSA Recall ID No. 97V025000); Mercury Mystiques (NHTSA Recall ID No. 99V194000); and Mercury Sables (NHTSA Recall ID No. 97V025000).

Most of these Ford recalls involved the cruise control system. There was particular focus on a design which allowed contaminants into the speed control cable conduit or caused damage to the cable itself, resulting in either a wide-open throttle or surging throttle.^[18]

The recalls, however, ignored key consumer concerns regarding runaway accelerations. Prominent among them was whether transient electromagnetic interference (EMI) could cause these unwanted accelerations. Some experts believed that transient EMI could cause the electronic cruise control to signal the throttle to open, despite the absence of accelerator input.^[19]

In addition, Ford was privy to information indicating that EMI could cause vehicles to suddenly accelerate out-of-control. Indeed, in internal investigations on sudden acceleration, Ford concluded that sudden unintended acceleration incidents increased with the introduction of broadly applied electronics in 1984.^[20] Ford also documented in internal memoranda that various electromagnetic failures, including EMI, could cause sudden unintended acceleration.^[21]

Ford apparently learned that "the vehicle speed maintenance control system or >cruise control system' . . . is capable in the event of >failure or malfunction' of opening the throttle a substantial amount without driver input."^[22] Indeed, former Ford employees have admitted that unwanted electrical impulses could open the throttle, causing sudden, unintended acceleration.^[23]

Ford generally denied virtually all defect claims related to runaway accelerations, often citing the 1989 NHTSA report of "drive pedal" error as evidence. Ford employees however apparently experienced incidents of sudden unintended acceleration, with no reproduceable evidence of the event. In one reported incident, a Ford engineer, investigating a Ford Expedition for cruise control problems, found that after pressing the "resume" button, "the vehicle kept accelerating beyond the set speed and wouldn't respond to brakes or the off switch."^[24] Upon examining the truck, however, Ford could not find anything out of the ordinary.^[25]

In another reported incident, during a test drive of a Mercury Grand Marquis, a Ford employee shifted into "drive", and the engine raced with the wheels spinning, as if the accelerator was floored. The employee stopped the car by braking as hard as he could. The car later checked out normal.^[26]

In yet another reported incident, a Ford employee crashed an experimental Aerostar prototype.^[27] After shifting into gear, the vehicle accelerated to full throttle, squealing the tires. The employee removed his foot from all pedals, thinking he had accidentally floored the accelerator, but the van continued to accelerate. He shifted into "Park" but could not avoid crashing into a wall.^[28]

Despite the above, Ford and virtually the entire industry continued to rebuff opinions that EMI could cause runaway accelerations, especially during related litigations.

C. The 2000s- Toyota/Lexus

On August 28, 2009, with a California Highway Patrol Officer at the wheel, a passenger in a new Lexus ES 350 made a frantic call to 911.^[29] Their vehicle was out-of-control, at 120 miles per hour, weaving through traffic. The passenger's final few words were "we're in trouble . . . there's no brakes."^[30] The driver, his wife, teenage daughter, and brother-in-law, the 911 caller, were all killed as the vehicle slammed into another car and careened down an embankment.^[31]

Since 2001, consumers have lodged over 1,000 reports of sudden unintended acceleration in Lexus and Toyota vehicles.^[32] Since the 2002 model year, Toyota and Lexus sudden acceleration incidents have resulted in 15 deaths.^[33] In contrast, sudden unintended acceleration in all other vehicles made by other manufacturers resulted in only 11 deaths.^[34]

Toyota first blamed these unintended accelerations on the drivers, then admitted that its all-weather floor mats could jam the accelerator pedal on certain models.^[35] Hoping to rectify the floor-mat problem, in September 2009, Toyota recalled millions of vehicles, including Camrys, Priuses, Avalons, Tacomas, Tundras, and Lexus models.

The floor mat recall, however, did not end the inquiry. NHTSA, in an unprecedented rebuke, responded to Toyota's claim that no defects existed in their vehicles with compatible and properly secured floor mats.^[36] Indeed, NHTSA publicly stated that it recognized an "underlying defect" in the design of the Toyota and Lexus accelerator pedals, and the drivers' foot wells.^[37]

In January 2010, Toyota announced yet another related recall. This one recalled millions of more vehicles to correct "sticking accelerator pedals". Toyota's Press Release stated that its continuing investigation found that certain accelerator pedals could mechanically stick in a partially depressed position, or return slowing to the idle position. Later in January, Toyota announced an unprecedented decision to halt sales and production of eight (8) models of its vehicles, until it could determine how to stop the gas pedals from sticking and causing unintended accelerations.^[38]

The authors however believe that Toyota's runaway acceleration problems will not end at "jamming floor mats" or "sticky gas pedals". A telling point is that complaints of unintended acceleration in Toyota and Lexus vehicles increased dramatically after employment of electronic throttles in the last decade.^[39] In some models, sudden acceleration complaints increased five-fold after introduction of electronic throttles.⁴⁰

III. THE IGNORED ISSUE AND SOLUTIONS

A. Introduction

Like the proverbial "elephant in the room", the EMI issue must be directly addressed by Toyota and the rest of the auto industry. EMI is real. The aerospace industry has been dealing with the ramifications of EMI/EMC (electromagnetic interference/electromagnetic compatibility) since the 1960s. Said simply: The more sophisticated electronics one stuffs into a small area, the more lethal the EMI/EMC issue.

We have reached the 21^st Century, and with it comes reliance on an unprecedented number of electronic gizmos in every new car. Some more than others. Toyota as the largest automobile manufacturer, and an undisputed leader in electronic advances for automobiles is at the forefront. As such, and with its current runaway acceleration woes, Toyota will have to face the issue first.

B. EMI/EMC

The electronic throttle system that Toyota introduced at the turn of the century replaced the mechanical link (usually a steel cable) between the driver's foot and the engine's acceleration with a series of sensors, microprocessors, electric motors and wiring. These devices were located among a growing number of additional sensors, processors, and wiring for a myriad of other electronic subsystems in a relatively small space in the vehicle's engine area. This, in and of itself, is a classic recipe for EMI/EMC problems.

As the aerospace industry learned decades ago, manufacturers cannot simply continue to jam electronic devices into small areas without testing and designing away EMI dangers. If they do, spurious signals that inadvertently and randomly excite near-by electronics are inevitable. If those near-by electronics include the engine control unit (or electronic throttle system) runaway accelerations are to be anticipated.

EMI/EMC dangers can include stray voltage, algorithm defects in the related software of the microprocessor components, and random signals that excite other subsystems (such as opening throttle control units).

Toyota, understandably, wants a "quick fix" to its runaway acceleration problems. Sales, reputation and peoples' lives depend on it. But limiting its investigations to mechanical things such as "jamming floor mats" and "sticky gas pedals" is a tragic mistake. Toyota (and the industry as a whole) can no longer afford to disregard "the elephant in the room": EMI/EMC.

The solution is not a "quick fix". Eliminating EMI/EMC dangers is a system design and test issue that affects every electronic component and computer-driven subsystem in the vehicle. And the more electronic components and microprocessors in a vehicle, the deeper and darker the problem.

Besides testing for EMI/EMC dangers at each step of the design process, safety analyses must be done. In particular, Failure Modes and Effects Analyses (FMEA) must be conducted to show that the system-design is free of EMI dangers. Through careful design, test and on-going FMEA, electronic devices can be safely integrated, insulated, and if need be isolated, and all associated algorithms can be verified and validated to virtually eliminate the risk of EMI. In over a quarter-of-century of product liability litigation, however, the authors have yet to see an FMEA from any auto manufacturer that comes remotely close to accomplishing and documenting the above.

So now is the time. Toyota as industry leader, and saddled with its current "runaway acceleration" problems should lead the way. Future designs must thoroughly address EMI/EMC from the ground up. Lives depend on it.

But what about the Toyota vehicles already on the road? Retrofit and perhaps redesign is necessary. If Toyota has not already done so internally, it should immediately amass what the aerospace industry calls a "tiger team" of knowledgeable engineers across multiple disciplines (including auto design, electronics, software and safety engineers) to beat back its deadly problems. Suspect components and software should be modified. Susceptible electronic devices, including wiring and sensitive components, should be shielded, insulated and if necessary isolated or retrofitted to eliminate EMI dangers.

C. The Role of Product Liability Litigation

For well over 30 years, product liability litigation has been at the forefront of auto safety: Think Pinto "exploding gas tanks", interior padding, airbag safety, roll-over propensity, etc. It is especially effective where industry progress is thwarted by profit concerns, and federal regulation is dwarfed by politics.

Runaway acceleration is no exception. The authors, for example, have been prosecuting related cases since the 1980s. We have learned that the best first steps are thorough initial investigation and discovery. In that regard, runaway acceleration cases should include, at the outset, requests for documents (including electronic files), and applicable interrogatories in the following fifteen (15) areas:

1. All EMI/EMC testing and analyses related to the throttle control system;

2. All FMEA (as defined by Society of Automotive Engineers (SAE) Surface Vehicle Recommended Practice J 1739) done related to the throttle control system;

3. All software definition documents related to the throttle control system;

4. The programming algorithms of the throttle control system;

5. The design and manufacturing specifications and drawings (including all configuration changes) for the throttle control system;

6. All Technical Service Bulletins, as well as other information, provided to dealers above the throttle control system and/or unintended accelerations;

7. The persons most knowledgeable at your corporation regarding EMI/EMC, FMEA, testing, design, and design changes related to the throttle control system and/or unintended accelerations;

8. All customer complaints and inquiries related to the throttle control system and/or unintended accelerations;

9. All original warranty claims, extended warranty claims, and claims for goodwill services paid by you related to the throttle control system and/or unintended accelerations;

10. All lawsuits related to alleged unintended accelerations and/or the throttle control system of substantially similar vehicles;

11. All recalls or service campaigns related to alleged unintended accelerations and/or the throttle control system of substantially similar vehicles;

12. All documents necessary to identify, access, read, verify and interpret the data in any device in the subject vehicle which records, samples or processes pre-collision, near-collision, collision and post-collision data (sometimes referred to as "the black box");

13. All communications with any government agency (including NHTSA) regarding unintended accelerations and/or the throttle control system of substantially similar vehicles;

14. All internal investigations regarding unintended accelerations and/or the throttle control system of substantially similar vehicles;

15. All communications with your dealers regarding unintended accelerations and/or the throttle control system of substantially similar vehicles;

[1]. / See Thomas Wathen, AAudi: Shifting the Blame@, The Multinational Monitor, Volume 8 - Number 5, May 1987.

[2]. / Id.

[3]. / Id.

[4]. / See Diana T. Kurylko, A100 YEARS OF AUDI: >Unintended acceleration= delays U.S. sales growth 15 years@, Automotive News, October 19, 2009.

[5]. / Id.

[6]. / See Id.; and Wathen, supra.

[7]. / Automotive News, Kurylko, supra.

[8]. / See NHTSA, AAn Examination of Sudden Acceleration@, Virginia: National Technical Information Service, 1989.

[9]. / Id. at p. 49.

[10]. / See Automotive News, Wathen, supra.

[11]. / See NHTSA Recall ID No. 82V037000.

[12]. / See NHTSA Recall ID No. 83V095000.

[13]. / See NHTSA Recall ID No. 87V009000.

[14]. / See NHTSA Recall ID No. 87V008000.

[15]. / See Wathen, supra.

[16]. / See Perona v. Volkswagen of America, Inc. 292 Ill.App.3d 59 (1997); see also Automotive News, Wathen, supra.

[17]. / See, e.g. Jurls v. Ford (2000) 752 So.2d 260; Federico v. Ford (2006) 67 Mass.App.Ct. 454; see also NHTSA Recall ID No. 00V422000; NHTSA Recall ID No. 99V062001; NHTSA Recall ID No. 03V482000.

[18]. / See e.g. NHTSA Recall ID Nos. 97V025000, 03V280000, and 99V062001.

[19]. / See Federico v. Ford Motor Company (2006) 67 Mass.App.Ct. 454, 456; Friedl v. Ford Motor Company, 2005 WL 2044552 (D.S.D.).

[20]. / See Friedl v. Ford Motor Company, supra.

[21]. / Id.

[22]. / See Knowster v. Ford Motor Company 2008 WL 5416399.

[23]. / See Watson v. Ford Motor Company 2007 WL 4216975 (Ohio App. 6 Dist.), paragraph 37.

[24]. / See Friedl v. Ford Motor Company, supra.

[25]. / Id.

[26]. / Id.

[27]. / See Friedl v. Ford Motor Company, supra.

[28]. / Id.

[29]. / See Vartabedian and Bensinger, AToyota=s Runaway-Car Worries May Not Stop at Floor Mats@, Los Angeles Times, October 18, 2009.

[30]. / Id.

[31]. / Id.

[32]. / See Vartabedian and Bensinger, ARunaway Toyota Cases Ignored@, Los Angeles Times, November 8, 2009.

[33]. / Id.

[34]. / Id.

[35]. / See Vartabedian and Bensinger, AToyota=s Runaway-Car Worries May Not Stop at Floor Mats@, Los Angeles Times, October 18, 2009; and NHTSA Recall ID No. 09V388000.

[36]. / See Vartabedian and Bensinger, ARegulators Slam Toyota Over >No Defect= Claim@, Los Angeles Times, November 5, 2009.

[37]. / Id.

[38]. / See Vartabedian and Bensinger, AToyota Safety Issues Grow@, Los Angeles Times, January 28, 2010.

[39]. / See Vartabedian and Bensinger, AData Points to Toyota=s Throttles, Not Floor Mats@, Los Angeles Times, November 29, 2009.

40. / Id.

DEADLY RUNAWAY ACCELERATION