Automakers Blame Drivers, But Settle Unintended Acceleration Cases
Two recent settlements in Unintended Acceleration (UA) cases remind us that while Toyota has sucked all the oxygen in the room over this defect, other automakers’ products equipped with electronic throttle controls are also getting their share of complaints, causing their share of injury and property damage and winding up in civil court.
In the last month, Thomas J. Murray & Associates, a law firm based in Sandusky, Ohio, reached confidential settlements against Kia Motors America and Subaru for seriously injured plaintiffs who claimed that their vehicles suffered an unintended acceleration event.
The first case involved Mary McDaniels, a visiting nurse from Norton, Ohio, who was returning to the office after seeing a patient, when the throttle of her 2006 KIA Amanti suddenly opened, as she crept along in stop-and-go traffic. With vehicles in front of her and oncoming traffic directly to her left, McDaniels chose to steer her rapidly accelerating sedan off the road.
Attorney Molly O’Neill says that McDaniels testified that her first reaction was: “What is happening to me?” When McDaniels looked down to affirm the position of her foot, she saw that it was on the brake. The Amanti hit a ditch, became airborne, skidded and collided with a tree. McDaniels’ leg was fractured in several places. She is unable to walk without assistance as a result of the Dec. 26, 2007 crash and had to give up her job.
McDaniels v Kia Motors America went to trial in October. Over two weeks of testimony, the Murrray legal team was able to show that Kia’s “American engineers were aware of unintended acceleration or surging events not ascribed to driver error,” O’Neill says. “They surmised it could be electronic.” McDaniels’ Kia was bought as “new” with a full warranty, even though it had 6,900 miles on it at the time of purchase and had been used by Kia as an in-house vehicle.
Kia attempted to blame driver error and brought in Carr Engineering the Houston, TX defense experts to argue that brakes could always overcome the throttle.
The civil case resulted in a mistrial, after two days of jury deliberations, with a lone juror unable to find that Kia was the proximate cause of the crash.
After an attempt at mediation failed, the plaintiffs were readying for a re-trial, when the case settled.
The second case, against Subaru America, settled well before trial, but not before the plaintiffs were able to conduct extensive discovery. On December 16, 2008, Cheryl Schmidt of Rockland County, New York, was at the wheel of a 2009 Subaru Forester, a dealership loaner vehicle, when it experienced an unintended acceleration. Schmidt was entering a parking area on the campus of the State University of New York, the vehicle accelerated and did not respond to braking. The Subaru crashed through the brick façade of the library. Although Schmidt was restrained, she broke her back in the crash. A sculptor and artist of large works, Schmidt has been unable to continue her career as an artist due to chronic pain.
Lawyers from the Murray firm found numerous UA complaints in NHTSA’s data. In addition, the lawyers located one consumer who complained to the dealership of two UA events in his 2009 Forester. Murray lawyers also found that Subaru’s ETC is functionally identical to the Toyota system.
Meanwhile, the Multi-District Litigation against Toyota for unintended acceleration claims grinds on. Last week, U.S. District Judge James Selna tentatively ruled that Toyota couldn’t compel named defendants in the class-action suit to arbitrate their cases. The first bellwether case trial is scheduled for later this year.
Speeding driver rescued by Abu Dhabi police
Abu Dhabi: Police rescued an Emirati man from his four-wheel drive after he put it on cruise control at 160km an hour – and couldn’t turn it off.
In scenes which could have come straight out of the Hollywood movie, Speed, the motorist called 999 and said he had activated the cruise control mechanism but lost control on the Abu Dhabi-Al Ain highway, police said on Saturday.
The Emirati motorist told police that he lost control of the vehicle at the Al Khatem area.
The dramatic event was reminiscent of the blockbuster movie starring Keanu Reeves in which a bus is forced to travel at more than 50 miles per hour to avoid a bomb on the bus from exploding.
But, thankfully, the incident in Abu Dhabi did not reach the same dangerous climax.
After receiving the alert the police immediately dispatched three patrol vehicles and traced the speeding car, said Brigadier Engineer Hussain Ahmad Al Harithi, Director of Traffic and Patrols at Abu Dhabi Police.
One patrol vehicle drove ahead of the moving car to clear the road and advised the terrified motorist to follow the pilot vehicle.
Another two patrol vehicles were dispatched to drive alongside the perilously fast-moving car in case it careered off the road and crashed.
But the motorist could not operate the cruise control or apply the brakes and the car continued at top speeds, posing a real risk of causing several fatal crashes.
At one point, Abu Dhabi police were planning to lead the car to an uninhabited area to somehow reduce the speed and stop the vehicle.
Meanwhile, the police officials from the central operations department started giving safety instructions to the motorist over the phone.
They advised him to fasten the seatbelts and take similar precautions which he followed. Then they asked him to leave the accelerator and brakes untouched and apply the handbrake slowly.
After about 45 minutes, the car eventually slowed down and came to a complete stop at Ramah, near the Abu Dhabi — Al Ain highway, giving a sigh of relief to the motorist and dozens of police officers who were involved in the emergency rescue mission.
A mechanical engineer working with Abu Dhabi Police told Gulf News the trouble in the car was caused by a very rare manufacturing defect in its cruise control system.
If the cruise control system malfunctions, it will affect the brake system also, said the engineer who did not want to be named.
He said it was a new Japanese car.
The dusty weather during the previous week must have also contributed to the malfunctioning defect as the dust must have entered the system, he added.
The engineer said the motorist could sue the car manufacturer and the agency in the UAE for the damages, as the malfunctioning put him into a very dangerous situation.
The motorist has not yet taken any legal action, he said.
Check your vehicle
Police officials have called on all motorists to check the efficiency of the cruise control systems in their cars.
The warning comes because of the malfunctioning cruise control system which caused the trouble on the Abu Dhabi — Al Ain highway.
Brigadier Engineer Hussain Ahmad Al Harithi, Director of Traffic and Patrols at Abu Dhabi Police, advised motorists to immediately report such problems to their car dealers and to their service centres and have them fixed immediately.
The periodic maintenance works of the vehicles should be done without fail, the official added.
He also urged motorists to follow all traffic rules and safety instructions such as wearing a seat belt etc.
Motorists have also been urged to assess their speed properly while driving and leave enough space between vehicles.
If any technical malfunctioning or similar problems are found while driving motorists should immediately report it to police.
Out of control vehicle rolls on Highway 87 near Walmart entrance
According to Payson Police Chief, Don Engler, a woman driving North into Payson on Hwy 87 apparently experienced acceleration problems with her vehicle and was unable slow down or stop.
January 27, 2012, 3:00 p.m.
Updated: January 30, 2012, 9:11 a.m.
Update: On Saturday afternoon, doctors took Saige Bloom off life support. A vigil will be help Jan. 30 at the hill near Walmart starting at 6 p.m.
A teen driving north into Payson on Highway 87 Friday reportedly lost control of her vehicle after the accelerator got stuck, sending her flying through afternoon traffic, according to police.
The 17-year-old was unable to slow down or stop and police did what they could to clear a path for her as she struggled to regain control.
The teen had reportedly just purchased the white vehicle in the Valley and was driving home, her mother following in another vehicle.
As the teen approached Payson, the vehicle’s accelerator stuck. The teen called her mother and alerted her of the problem. The mother then called police and officers raced to clear intersections as the teen entered town.
Witnesses said the teen’s vehicle appeared to be going 55-60 mph, said Police Chief Don Engler. Several motorists reported that they were nearly struck by the vehicle as it sped down the Beeline.
One woman waiting to pull into Wendy’s said the papers sitting on her minivan’s dashboard flew up as the teen’s vehicle passed.
It is unclear if the teen tried to turn off the vehicle or put it into neutral. She was not wearing a seat belt when the vehicle clipped three other vehicles at the Beeline and Malibu Drive intersection. The teen’s car rolled several times, ejecting her.
Paramedics airlifted the driver to Phoenix in critical condition. There were no injuries to the occupants of the other vehicles, Engler said.
Police say it is amazing no one else was seriously injured.
“It is credit to her,” Engler said. “She was doing her best so that she wouldn’t strike other vehicles.”
Rumors that the accident culminated during a police chase are untrue.
How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today
Last month, we reported a Florida circuit judge’s extraordinary decision to set aside a civil jury verdict in favor of Ford Motor Company, based on evidence and testimony that Ford had concealed an electronic cause of unintended acceleration from the National Highway Traffic Safety Administration – and its own expert witnesses. Judge William T. Swigert’s 51-page decision in Stimpson v Ford also outlines how decades of the automaker’s dissembling to limit its liability in civil lawsuits helped to mire the thinking about root causes of unintended acceleration in the limited context of mechanical agency, even as the electronic sophistication – and the potential for defects and unanticipated interactions between systems – in vehicles grew.
That a large corporation would conceal a deadly problem to protect its interests is hardly news – although the systemic and exacting strategies Ford employed in this case are notable. What makes this story important is how Ford also re-wrote the history on this issue and helped to shape the agency’s thinking about an ongoing problem for decades hence. We have only the public record regarding Toyota UA at our disposal – and precious little of that has actually been made public – so we can’t know how Toyota has assessed its own UA problem; if and what parallels in corporate misdirection might be drawn between Ford and Toyota. But one can see how Ford’s actions back in the 1980s still resonate with the agency today and how it has kept NHTSA from advancing its knowledge in electronic causes of UA that are not already detected by the vehicle diagnostics.
The Emergence of a Defect in the Age of Audi SUA
As recounted in the Judge Swigert’s order, the history of Ford and unintended acceleration goes back to 1973, when Ford’s cruise control was under development. Ford Engineer William Follmer “warned about the risk posed by electromagnetic interference, and cautioned that ‘to avoid disaster’ it was imperative to incorporate failsafe protection against EMI in the system’s design.” In 1976, two Ford engineers obtained a patent describing a design for the cruise control system’s printed circuit board to reduce the risk of a sudden acceleration posed by EMI.
But, in that same year, the company’s Electrical and Electronics Division determined that electromagnetic interference did not pose a significant risk and, therefore, “No special consideration was given to designing in electromagnetic compatibility.”
The switches in the cruise control system Ford developed and installed in millions of vehicles, such as Stimpsons’ Aerostar, were vulnerable at gear engagement to a current spike from electromagnetic interference that can bypass the control logic and induce the servo to pull the throttle wide open. The judge suggested that Ford had considered this possibility in 1979, putting $75 million in reserve to cover a recall for UA.
But the problem really blossomed in1984, after Ford introduced an advanced version of its engine electronics: EEC-IV. Where UA complaints before the introduction of this new technology were few, they began to increase rapidly once the 1984 models entered the fleet. During the 1980s, field investigations into UA complaints were documented in Service Investigation Reports, or SIRs, that were forwarded to Ford headquarters in Dearborn. This flood of complaints moved a Safety Office manager named Edward I. Richardson to begin informally reviewing the SIRs, in anticipation of a NHTSA investigation.
Richardson’s staff found a fact pattern in these UA complaints: “sudden accelerations from a standstill invariably began at gear engagement; drivers frequently reported that braking during the event was ineffective; field engineers often identified the cruise control electronics as the cause; field engineers frequently recommended replacing the cruise control servo; and there were no field reports identifying driver error as the cause of a sudden acceleration.”
On September 30, 1985, NHTSA opened the first of several investigations involving Ford. But the automaker kept its fact patterns to itself, and told the agency’s Office of Defects Investigation (ODI) that its “vehicle systems are not defective.” NHTSA closed the investigation in August 1986, because no component-related root cause could be determined.
Having skirted one NHTSA investigation, a manager in Ford’s Customer Service Division Alan Updegrove, met with Ford counsel and the office that employs in-house litigation experts to express his dismay over the inflammatory opinions found in the SIRs. At that September 1986 meeting, he recommended a new format for investigating UA complaints and assembled a team to develop a new investigative approach.
What was the source of Updegrove unease? The legal decision focuses only on the events that concern Stimpson v. Ford. But one need only consider what was happening elsewhere in the industry regarding what was known back then as Sudden Unintended Acceleration to understand Ford’s desire for pre-emptory action – namely Audi.
By September 1986, Volkswagen was had already recalled Audi 5000 vehicles with automatic transmissions from the 1978-83 model years in the U.S. and Canada twice to resolve drivers’ complaints of SUA from a standstill, with ineffective braking. The recalls, to secure the floor mat and prevent pedal interference, however, did little to squelch the complaints. Volkswagen was seemingly trapped in a public relations nightmare featuring injuries, deaths and hundreds of crashes trumpeted to anyone who would listen, by a group of well-organized, articulate and highly vocal owners.
On March 19, 1986, the founder of what would become the Audi Victims Network teamed up with the New York Public Interest Research Group, NY Attorney General Robert Abrams and Center for Auto Safety to hold a press conference demanding that NHTSA investigate Audi SUA. Sales of the once-popular make were plummeting and despite Volkswagen’s launch of a service campaign to move the accelerator and brake pedals of the 1984-1986 Audi 5000′s, the agency decided to open a formal defect investigation into SUA involving 1978-86 Audi 5000s. In August 1986, after the agency launched its probe, Volkswagen announced that it would install a brake to shift interlock in the troubled vehicles. By November 1986, CBS would air its infamous segment on Audi SUA, which drove down vehicle sales even further.
The Ford Problem Grows
As Audi thrashed in the spotlight, Ford was receiving a steady stream of “malfunctioning cruise control servos under warranty for which no cause could be identified” complaints. In October 1986, Ford’s Electrical and Electronics Division documented for senior management “the reasons behind the rapid rise in undiagnosed failures in electronic components. The report identified six components, including the cruise control servo, whose undiagnosed failure rate had experienced the greatest increases. According to the report, prior to 1984, the cause of servo malfunctions had been identified 80 percent of the time, while after 1984 the rate plummeted to 20 percent. The EED report specifically identified ‘electromagnetic influences in the vehicle environment’ due to ‘the increasing complexity of electrical system’ as the root cause of this quantum increase in undiagnosed servo malfunctions; and since servos removed by field engineers investigating sudden accelerations were testing normal in Ford’s laboratories, it was clear that ‘electromagnetic influences’ were also the cause of the findings contained in SIRs the Safety Office was reviewing at the time.”
NHTSA wasn’t done, however. In December 1986, the agency notified Ford that it had identified 439 reports of “unexpected vehicle acceleration” that had resulted in “193 accidents, 106 injuries, and 5 fatalities … in 1983-1986 Ford vehicles” that could result in a safety recall. Ford would tell the agency in 1987, that they could find nothing amiss with any components.
Internally, however, Ford was working on solving the problem, as it tried to conceal it.
On January 12, 1987, Ford created a multi-disciplinary task force to study “how interactions between the engine and cruise control electronics were contributing to sudden accelerations.” The EED’s recommendation explicitly recognized that malfunctions involving the cruise control servo were caused by system level interactions, and not by detectable failures in individual components of the interacting systems.”
In March 1987, Ford began working on the flip side of the coin. The company assembled about 200 field engineers in Dearborn to receive new marching orders that would help Ford obscure the data. The old SIR format was discontinued and Updegrove’s new approach to UA investigations would take its place. All sudden acceleration related-SIRs would now be purged in the year they were generated. (Federal law requires that safety-related records have a five year retention period.)
Ford presented a very different face to NHTSA. As the NHTSA defect investigation wound on, Ford scratched up only 38 SIR reports – with only 21 relating to UA from a standstill. (In his decision, Judge Swigert agreed with the plaintiffs that the paucity of SIRs had more to do with the new retention policy than a lack of complaints.) In March 1987, Ford told the agency that an electronically-rooted SUA “would be expected to reveal physical evidence of causal origin,” even though the SIRs and the EED report said otherwise.
As it tried to hold off the agency, Ford continued to work on solving the problem. A February 1988 memo from Stephen Hahn, a senior electrical engineer and leader of Ford’s SUA task force lent support to the conclusions of previous internal studies showing the problem was rooted in the system-level interactions between the cruise control and the engine. He observed that “only when the vehicle speed control function is integrated into the EEC-IV system does the EEC system have the potential to produce a wide open throttle acceleration.” That fall, Ford engineers assembled the factors that could cause an unintended acceleration into a fish-bone schematic known as an Ishikawa diagram, “which identified electromagnetic interference on the output side of the cruise control electronics as a potential cause.”
Alan Updegrove’s investigation into sudden acceleration claims produced a detailed database of incidents, analyzed by a team that included representatives from the Powertrain Electronics Unit, the Automotive Safety Office, and the Customer Service Division. Their task was to “guide the investigation into key areas that included the engine control electronics, underhood linkages, wiring and speed control … and an extensive interview with the operator of the vehicle and any available witnesses to the event.”
One of the engineers on Updegrove’s team, James Auiler, testified that the “Updegrove database was a special study to get premium factual information so that we could do engineering analysis and due diligence and understand what was really going on.”
The foundation of the database was a questionnaire to be used by field investigators “to record facts and information indicating the likely cause of the occurrence.” The questionnaire was quite detailed, including information about driver behavior, direct observations from witnesses to the event, braking effectiveness; physical evidence, such as tire marks, and how the event terminated. The results were divided into six possible categories relating to causation and three categories identifying the engine behavior during the event. Updegrove’s team gathered a total of 1,900 cases in which the UA occurred upon gear engagement. The summaries of those cases determined that less than one percent were classified as pedal misapplication, and for 99 percent “the evidence collected logically supported the driver’ claim of an uncontrolled acceleration, but no physical explanation for the event was found during the vehicle inspection.”
Yet, in a December 1989 response to NHTSA’s sticking throttle investigation of Thunderbird and Mercury Cougar vehicles, Ford told the agency that “the Updegrove results supported the agency’s conclusion that driver error was the “most plausible cause” of sudden accelerations.”
Managing the Experts
Swigert ruled that keeping this information in-house required Ford to misdirect its own go-to electronics litigation expert, Victor Declercq, manager of the Ford Electromagnetic Compatibility Laboratory. DeClerq has been frequently dispatched to testify for Ford that there is “no evidence that Ford’s electronics are susceptible to an EMI-induced sudden acceleration.” But Judge Swigert added up a number of his pre- and post-trial assertions and determined that Declerq was not privy to any of the internal studies and memos outlining how electronic malfunctions in the cruise control could result in a wide-open throttle.
– Declerq admitted in post-trial testimony that a lawyer from the automaker’s Office of General Counsel denied that there was any engineering summary of the Updegrove results.
– Declerq acknowledged that “no Ford model with the cruise control electronics at issue here had been tested following a sudden acceleration; and that no testing replicating EMI on the output side of the cruise control had been performed.”
– In a 1999 in-house video, DeClerq could be seen using a table-top model of Ford’s cruise control system to demonstrate that five failures would have to occur simultaneously before a UA was possible.
– Declercq acknowledged “that he has frequently cited [the 1989 NHTSA study, An Examination of Sudden Acceleration,] to juries as support for his opinion that multiple, simultaneous, and detectable failures are prerequisites for a sudden acceleration.” As the following section details, Ford misdirected the agency about the causes of UA as NHTSA gathered string for this study.
Tarnishing The Silver Book
One of the most riveting portions of Judge Swigert’s decision was his take down of An Examination of Sudden Acceleration, the 1989 study known within NHTSA as The Silver Book, in reference to the color of its cover.
In the wake of the Audi case, NHTSA commissioned the Transportation System Center to conduct an independent, industry-wide study of sudden unintended acceleration. It announced its intention in October 1987, just before Ford’s Electronics Reliability Study Team pegged EMI and the lack of uniform procedures for circuit analysis as contributory causes to the electronic problems plaguing Ford vehicles. As part of the information-gathering process, NHTSA had asked manufacturers to provide to the agency “all reports, studies, or investigations that might assist the TSC study.” Ford did not produce any of its internal studies showing the effect of EMI on its cruise control servo, it did not disclose the Ishikawa analysis or the Updegrove study. The judge determined that Ford’s fraud in unintended acceleration had extended to misleading NHTSA in the preparation of this study.
When An Examination of Sudden Acceleration was finally published in January 1989, the researchers concluded, based – in part – on representations from manufacturers, like Ford, that “EMI was not a contributing factor to sudden accelerations; that at least two simultaneous and detectable faults would have to occur for the cruise control electronics to cause a sudden acceleration; and that, in the absence of such detectable faults, the most ‘plausible explanation was driver pedal error.’”
Ford knew from its own investigations that this was not true. But in October 1989, when NHTSA opened Preliminary Evaluation 90-001, asking Ford for studies or investigations that could explain a “failure of the throttle control system to properly control vehicle speed in 1988-1989 model year Thunderbird/Cougar models,” Ford cited The Silver Book to buttress its argument that, like NHTSA, it has been diligently searching for causes, but can’t find anything beyond driver error:
“Ford has received and investigated reports alleging sudden acceleration incidents, both with and without explicit allegations of brake failure, on virtually all vehicles it produces including the vehicles which are the subject of this inquiry. Ford’s investigations, like those of NHTSA and others encompassed numerous components, systems, complex interrelationships, and human factors. The typical scope of such analysis is manifested by
the diverse studies documented within the Transportation System Center CTSC) report; similar efforts continue at Ford, as exemplified by a schematic diagram, provided as Attachment 1, which was formulated by Ford engineering personnel to structure sudden acceleration-type incident analysis.”
In view of Ford’s decision to keep its knowledge about the causes of UA to itself, Judge Swigert was particularly critical of the underlying assumptions on which An Examination of Sudden Acceleration was based. He pointed to depositions of Richard Schmidt, a human factors expert, former Exponent scientist and co-author of driver error studies on which NHTSA relied to deny a 2000 petition to re-open an investigation into the phenomenon of UA, in which Schmidt was unable to explain the empirical starting point that led to the conclusion that most UA events are caused by driver error. Swigert first observed that Schmidt’s theory about the events that create a pedal-misapplication UA-crash is at odds with his working definition of UA.
Schmidt defined UA as: “A full, uncommanded full throttle situation from a stop or near stop after shifting from park or a drive gear with a perceived brake failure.” He further testified that in his view, drivers misposition their feet, mistakenly depress the accelerator instead of the brake, simultaneously as they shift into gear. But Schmidt conceded that he had not done any baseline research to determine what drivers typically do during vehicle start up – when and where they place their feet. And Schmidt said that in his view, the move to a full-throttle event is gradual, rather than immediate. He believed the UA crash occurred when drivers lightly depress the accelerator pedal, thinking it’s the brake. When the car starts to move upon gear engagement, the driver presses a little harder still under the assumption that his foot is on the brake. As the vehicle continues to move, the driver gradually applies more pressure to the brake, until the vehicle movement is arrested by a crash.
“Since it is undisputed that in a classic sudden acceleration the throttle rapidly goes to wide open at gear engagement, Schmidt’s hypothesis is obviously inconsistent with this generally accepted description of a sudden acceleration. The core question, however, is whether there is a scientific or empirical basis for Schmidt’s hypothesis that pedal errors cause most sudden accelerations,” Swigert wrote in his decision.
Then, the judge attacked Schmidt’s scientific rigor. In examining Schmidt’s deposition testimony, Swigert found:
“It is apparent that Schmidt assumed that if no tangible or detectable evidence of a malfunction is found in the vehicle, the cause must be the driver. However, when Schmidt was pressed to explain the basis for this assumption, he conceded that: (1) he was unaware of any research showing that drivers occasionally misposition their foot on the accelerator pedal at start up; (2) he never consulted with an electrical engineer regarding his assumption that two detectable faults at least that ‘fix themselves’ were necessary for a sudden acceleration; ‘(3) that he had heard about Ford’s Updegrove investigation, but knew nothing about the results; (4) he has done no research regarding brake pedal force needed to stop an open throttle acceleration;’ and (5) when confronted with the fact that many sudden accelerations had been terminated by the driver disengaging the engine before a crash occurred, he said he would be ‘surprised’ if that were the case.”
This decision tells a story that resonates beyond whatever Ford shoveled at NHTSA in the 1980s. In all that compost, Ford’s decision to withhold what it knew about the connection between EMI, its cruise control servo and unintended acceleration, were the seeds of thought that have taken root, and flourished at the agency. These opinions continue to be expressed 30 years later. Even as late as 2003, the agency was using An Examination of Sudden Acceleration, as a reason to dismiss complaints of UA in Toyota vehicles. In a Federal Register notice denying a defect petition from a Lexus owner who experienced three UAs in his vehicle, NHTSA cited its 1989 study as part of the supporting evidence. The 1999 Lexus at issue, however, was equipped with a new electronic throttle control system; the Silver Book examined mechanical throttle control systems.
Take for example, a particularly striking e-mail from Toyota manager Chris Tinto recounting a June 2004 meeting with NHTSA ODI investigator Robert Young on the subject of unintended acceleration in Toyotas:
“Mr. Young was shown all of the failure modes of the ETC [Electronic Throttle Control] system, and was clear in expressing that none of the modes felt ‘unsafe’ to him, and he felt that the modes were unrelated to sudden acceleration. Mr. Young also drove the vehicle in such a way that he was able to apply both the accelerator and the brake pedal at the same time. He referred to this as “Dual Pedal Application.” He expressed his opinion that the complaints that the agency has received were most likely dual pedal application (i.e. not vehicle malfunction related). He also stated that it was very difficult to achieve this dual pedal application condition because the Camry has utilizes a wide (i.e. good) spacing between the accelerator pedal and the brake pedal.”
If Tinto’s retelling is accurate, this belief in driver error is so unshakeable that one of the agency’s most experienced investigative experts was ready to conclude that the complaints were due to dual pedal application even though the data – which showed a 400 percent increase in UA Camry complaints after Toyota went to electronic throttle controls – and his own direct observation – that the pedals had good spacing and that it was hard to actually hit both pedals at once – told him the exact opposite.
(Young was once similarly confident that a high-profile 1998 fatal crash involving a Ford police van in Minneapolis was a case of driver error, until he learned months later that an aftermarket device often used by police to keep brake lights flashing disabled the shift lock. This allowed the vehicles to surge forward upon gear engagement without touching the pedal. The story of this crash and the agency’s subsequent findings are detailed in a Wall Street Journal article from November 1, 1999: “A Simple Case of Sudden Acceleration – Or So It Seemed at First to Bob Young.”)
This assumption in the primacy of mechanical causes in Toyota UA incidents snakes it way through several subsequent NHTSA investigations – regardless of the absence of evidence or contradictory evidence. It’s woven into a conversation with the Las Vegas Metropolitan Police, trying to make sense of the January 2004 deaths of George and Maureen Yago in their 2002 Camry XLE.
Two witnesses following the Yagos into a casino parking garage said that they saw the vehicle pull slowly into a space and come to a stop (observing that the Camry’s brake lights were lit), when the vehicle suddenly took off, and shot off the fourth floor.
NHTSA never investigated this death. Nonetheless, ODI investigators speculated about causes with the police. According to the police report, ODI investigator Steve Chan carefully explained that “in the past two years there have been numerous complaints about a problem with the 2002 and 2003 model year Toyota Camrys. The complaint stems from a sudden acceleration problem, supposedly, operators of this type of vehicle have been slowing down or stopping, and suddenly, the car accelerates. In the previous complaints, some of the incidents had resulted in a collision, this was the first death. Chan explained how in 2002, Toyota went to a new type of accelerator. In the previous years, a gas pedal was connected to the engine via some type of cable or linkage. In 2002, the gas pedal is now connected to some type of a pedal position sensor, this sensor is in turn connected to wires, these wires connect to the cars computer, there are more wires which connect to some type of a servo or actuator. This connects to the engine to control the engine RPMs. After this change is when these type of incidents started to occur.”
But, then the conversation turns to pedal misapplication, and that is where it is left:
“Although, it does need to be brought up, there may have been other changes which coincided with this modification, changes such as pedal or seating position changes. We spoke about misapplication, being a possible cause of these types of collisions, misapplication is where a person goes to step on the brake, but is actually pushing on the gas. As the vehicle accelerates forward, the driver panics, and pushes down harder because the vehicle is not stopping, the vehicle only accelerates more, so until the driver realizes what is going on and lifts off the gas, or what happens more often is, they hit something. Although I do not have any current statistics, the type of case where a collision results predominantly occurs with the elderly. Plus their reaction times are slower and by the time they realize what is occurring a collision has occurred. [Chan] did not have any information on the ages of the drivers involved in their complaints, during my inspection of the gas pedal, locations of this vehicle, it seemed to me the pedals were extremely close. Furthermore, they appeared to be at the same height. It seemed to me a person could easily push on both pedals at the same time, and not know it. This would lead to a driver accelerating while braking.”
It shows up in the agency’s decision to deny a 2008 petition from William Kronholm, a Tacoma owner who experienced two brief UAs in his 2007 truck. Kronholm said that NHTSA investigators pushed pedal misapplication as a cause, because he was wearing ski boots at the time. An attempt to hit both pedals at once showed Kronholm, just as it showed Bob Young four years earlier, that he would have to move his foot into an unnatural position. For Kronholm, this was evidence that dual pedal application was not a cause. Investigators, however, took pains to mention dual pedal application in their denial of Kronholm’s petition.
It culminated in the denial of an April 2009 petition from, Jeffrey Pepski, a Lexus ES 350 owner from Minnesota. Pepski asked the agency to re-open its probe of UA in Lexus vehicles equipped with electronic throttle control, and criticized it for focusing narrowly on all-weather floor mat interference. Pepski’s incident occurred at high speed in a vehicle that was only outfitted with a standard carpet mat. Although he had tried pumping and pulling up the accelerator with his foot, he could not stop the acceleration. Pepski requested “an additional investigation of model years 2002-2003 Lexus ES 300 for those ‘longer duration incidents involving uncontrollable acceleration where brake pedal application allegedly had no effect.’”
On May 5, about a week before Toyota would send an official response to NHTSA, one of Toyota’s Washington staffers, Chris Santucci sent an investigation status report to colleague According to Santucci, NHTSA was looking for help in crafting a denial:
“For background, NHTSA did inspect the petitioner’s vehicle. While they did not see clearly the witness marks of the carpeted floor mat on the carpet in the forward, unhooked position, they do suspect that the floor mat was responsible for the petitioner’s issue.”
“I have discussed our rebuttal with them, and they are welcoming of such a letter, They are struggling with sending an IR letter, because they shouldn’t ask us about floormat issues because the petitioner contends that NHTSA did not investigate throttle issues other than floor mat-related. So they should ask us for non-floor mat related reports, right? But they are concerned that if they ask for these other reports, they will have many reports that just cannot be explained, and since they do not think that they can explain them, they don’t really want them. Does that make sense? I think it is good news for Toyota.”
Jeff Pepski is adamant that the carpeted floor mat played no role in his incident. In an e-mail to SRS he said:
“My incident occurred on February 3, 2009. My petition to NHTSA was dated March 13, 2009 and I met with the NHTSA reps [Bill Collins and Stephen McHenry with the DOT] and Toyota rep [Mike Zarnecki, the Field Technical Specialist from the Lexus Central Area Office] on May 1, 2009. Since no chain of evidence existed, the possibility of any observable witness marks as of May 1 would be remote and the level of reliability would be non-existent. All three parties were present when I asked Mike Zarnecki to demonstrate how the floor mats could have possibly caused the accelerator pedal to become entrapped. After much manual manipulation of the floor mat, he was able to show how it may occur. At my request he pulled up and pushed down on the gas pedal; the floor mat immediately became free. I explained that the SUA that I experienced did not cease after I had done the same while driving on February 3. If the floor mat had entrapped the accelerator pedal as all three claimed, the vehicle would have stopped accelerating after dislodging the floor mat. The SUA I experienced continued as the floor mat was not the cause.”
Once again, NHTSA investigators were confronted with a direct observation that floor mat interference was not a probable cause of this incident. Toyota had never identified carpeted floor mats in Lexus vehicles as a cause of UA; nor had it ever recalled carpet mats in Lexus vehicles. Yet, months after the incident, ODI still wanted to believe that Pepski’s event was just another case of mechanical interference, and was uninterested in receiving information that challenged that belief.
Systematic and scientific metrics to determine what to investigate remain undeveloped. Instead, ODI relies on a system of “feelings.”
Since the agency never developed its own knowledge base of automotive electronics, it is wholly dependent on the representations of manufacturers. While automakers are always going to know much more about how their vehicles work than any outside entity, NHTSA appears ill-equipped to challenge even the falsehoods that are easy to detect. During the early Toyota investigations of 2003 and 2004, the automaker insisted that the UA events showing up in consumer complaints could not be electronic, because the failsafe system had not detected them, and set a Diagnostic Trouble Code. This was the gospel according to the Silver Book – at least two simultaneous and detectable faults would have to occur for the cruise control electronics to cause a sudden acceleration; and that, in the absence of such detectable faults, the most ‘plausible explanation was driver pedal error.
Toyota knew that errors could occur without setting a DTC. (For example, in an unrelated investigation into unpredictable engine failure in 2005-2008 Corollas, Toyota submitted multiple field technical reports showing problems that the ECU did not catch and record.) In a matter of hours, Dr. David Gilbert, an automotive electronics professor from Southern Illinois University and Toyota owner, showed that the accelerator pedal position sensor’s circuitry could allow the vehicle could go to a wide open throttle without the ECM catching the error. Automotive techs know that a vehicle can have a problem with no code and a code with no problem. Yet NHTSA readily accepted Toyota’s representations about the infallibility of its system. The agency remains far behind in its understanding of complex vehicle electronics engineering and diagnostics, unable to refute or fruitfully examine potential malfunctions.
It can also be seen in the agency’s hiring decisions – ODI is still the province of mechanical engineers. Only after it was shamed in Congressional hearings about its lack of electronics expertise did it move to acquire a little. And because it doesn’t understand what it is supposed to be investigating, NHTSA doesn’t seem to understand what it should be regulating. Or is it the other way around? In either case, we are still awaiting the resumption of rulemaking around FMVSS 124 accelerator controls, written in 1972.
When Ford decided to bury evidence of the electronic root causes of UA, within the company and without, it helped to freeze the agency’s understanding of how to diagnose and remedy this difficult defect. This legal decision is as good an explanation as any for why, when it comes to automotive electronics, the agency isn’t even in the ballpark, let alone the ball game.