Bad-mouthing Toyota and its defenders

by Ted Frank on July 19, 2010

Years ago I promised myself that I’d stop wading into comments sections, but my breach of that promise today in a trial-lawyer blog attacking me for pointing out the truth about the bogus Toyota sudden acceleration claims might amuse some readers, and I might as well get a post out of it.

“Are not companies obligated to make the safest vehicle possible?”

The safest vehicle possible is a Sherman tank with a restrictor plate preventing it from exceeding 1 mph, so the answer to your question is “no”—though certainly trial lawyers have an interest in asking you to think manufacturers are doing something wrong when they don’t.

“Until Toyota can identify the exact cause of these accidents (besides the too-convenient driver error) anything and everything is in question and must be investigated.”

I look forward to you writing NHTSA and demanding they investigate if invisible vampires are causing elderly drivers to hit the wrong pedal. After all, anything and everything is in question, and you reject Occam’s Razor when it comes to an alleged electronic defect that simultaneously causes three separate systems to malfunction six times more often for elderly drivers than non-elderly drivers, so why not demand an investigation of the equally unlikely invisible-vampire problem as long as you’re rejecting science?

{ 16 comments }

1 Jay 07.19.10 at 3:45 pm

Next up-a dealer extra to ward off invisible vampires. Complete with an up-charge, and if you act now they’ll throw in guarantee for complete vehicle replacement in the event that your vehicle is possessed by a demonic presence that can’t be driven out without the destruction of the vehicle.

2 EarlW 07.19.10 at 4:31 pm

Are not lawyers obligated to provide the best defense possible?

3 Waste93 07.19.10 at 4:33 pm

Awesome.

Though if they put anti-vampire wards on vehicles you can be guaranteed two things. 1) Vampires will sue for discrimintation and 2) Invisible Werewolves will take over the pedal pushing for the vampires.

4 MF 07.19.10 at 4:44 pm

Sounds like a pretty inexpensive option – a lifetime supply of garlic should do the job, shouldn’t it? Or is that with werewolves? I can never remember that stuff…

As to EarlW, lawyers are obligated to provide the best reasonable defense possible. Oh, wait, that’s an ambiguous term, subject to interpretation, and thus not enforceable.

Oh, and I just made that up anyway. It probably should be the case, but I have no idea what the real situation is. Nor do I know if you were being snarky, or if you were serious (and if it’s the latter, you fall into the group of people I consider extremely dangerous to our country’s future health).

5 blhlls 07.19.10 at 5:07 pm

If people really felt that the ‘safest car possible’ was what they wanted, car advertisements wouldn’t talk about cargo space, cup holders, entertainment systems, comfortable rides and automatic doors. Strangely, no one asserts that the vehicle owner has a duty to permit operation only by the safest driver possible.

6 Waste93 07.19.10 at 5:50 pm

EarlW,

Yes. However this isn’t a theory put forth by a defense attorney or someone advocating for them. It’s from what would be the plantiffs attorney or someone on their side.

So if you support frivilous theories as justification for lawsuits, should someone that is injured be able to sue anyone else because of the butterfly effect?

7 Brett 07.20.10 at 7:08 am

In the quoted language above, Mr. Frank is replying to the comments of a non-laywer commenter. An attorney – and even this specific commenter in a later post – would (and did) acknowledge or read into the statements above an element of “reasonableness”. Thus, I think we could all agree that companies should make vehicles that are “reasonably safe”, even if we do not always agree as to what is “reasonable.” The same goes for potential sources of the sudden acceleration defect.

I understand that most people reading this post and these comments do not believe there is an electrical or electronic cause of sudden acceleration. But so long as it remains a “reasonable” possibility – or even a possibility upon which experts in the field disagree – shouldn’t Toyota and government regulators continue to investigate the possibility if doing so might save lives?

Whatever disagreements we might have about policy, surely we can agree that saving lives is worth asking the question rather than prejuding the outcome. I have never said that all sudden acceleration is caused by electrical malfunctions. In fact, Toyota has admitted two sources of sudden acceleration already (floor mat interference and “sticky” pedals). It is most likely that sudden acceleration is caused by a number of different sources (including, in some instances, driver error).

Nevertheless, there are documented instances in which no acknowledged source of sudden acceleration (floor mats, sticky pedals or operator error) was the cause of the unintended acceleration. See the Kevin Haggerty example in the comment thread linked above. To quote Sherlock Holmes, “Once you eliminate the impossible (here the acknowledged sources of sudden acceleration), whatever remains, no matter how improbable, must be the truth.”

I do not intend to engage in another protacted debate. My thoughts are well represented here. As I said yesterday, it is clear we have a substantial disagreement. Perhaps we must leave it at that.

8 William Nuesslein 07.20.10 at 8:42 am

Driving slower is generally safer than driving at high speeds. The 55 mph limit did save some lives. But people made clear that the increase in safety from the 55 mph limit did not justify the loss of time in traveling from one place to another. The public, when not suing, recognizes that there are diminishing returns to car safety as there is in most other economic matters.

I had a bad accident last November where I was hit broadside by a car going 40 plus miles an hour. Both cars were totaled. My Hyundai Sonata was so well built that I was able to walk away from the accident. The woman in the other car was protected by seat belts, air bags, and a collapsible front end. She went to the hospital for observation, and was fine. Yes, automakers have an obligation to make safe cars, and they more than meet their obligations. Air bags are not cost effective.

9 Brett 07.20.10 at 9:34 am

The comments to which Mr. Frank replied (republished above) were made by a non-lawyer (an airline pilot, actually). An attorney – and even the commenter in a subsequent comment – would infer and acknowledge (as did the commenter) an element of “reasonableness.” Surely, we could agree that an auto maker has a duty to design and build a vehicle that is “reasonably safe”, even if we disagree as to what constitutes “reasonableness”. The commenter never suggested that all persons driver Sherman Tanks (or Abrams tanks for that matter).

The same reasonableness standard should apply to the investigation of the causes of sudden acceleration. I understand that most readers at this site believe that electronic malfunctions do not cause sudden acceleration. However, notable experts disagree. There are many national and international experts who believe that electronic malfunctions may be one of several causes of Toyota’s sudden acceleration problem (including Toyota’s acknowledged causes of floor mat interference and “sticky” gas pedals and, yes, in some instances, operator error).

There are also documented instances – see the Kevin Haggerty example in the comment thread to which Mr. Frank refers – in which no identified cause of sudden acceleration was found. Haggerty drove his Toyota onto the dealer lot and exited the vehicle during the unintended acceleration event. Toyota technicians were able to observe and investigate the vehicle while the event occurred. It is undisputed that floor mat interference did not cause the incident. A sticky pedal did not cause the incident. Driver error or pedal misapplication did not cause the incident. As Sherlock Holmes said: “Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”

I do not intend to engage in another protracted debate on this issue. My position is well documented here. As I said yesterday, it is clear we have a substantial disagreement. Perhaps we must leave it at that.

10 Ted Frank 07.20.10 at 10:41 am

With respect to Brett’s comment, Rule 11, on the rare occasions that it is enforced, requires trial lawyers to conduct the “reasonable investigation” first and then file a complaint.

That isn’t what’s happened here. Trial lawyers like Emison have immediately accused Toyota of wrongdoing on a scientifically baseless theory, both in court and in public, and others are seeking billions from the innocent defendant for themselves. To claim that all they really want is for the question of sudden acceleration or invisible vampires to be investigated is disingenuous.

The accusation of sudden acceleration is that an electronic defect covered up by Toyota causes the throttle to open wide and override the brakes so that the vehicle is impossible to stop. (The accusation has since expanded to claim that it also affects a third system, the black box that measures throttle inputs and otherwise would demonstrate that there was no problem with the throttle or brakes.) That isn’t what happened to Haggerty, who seems to have had a fluke mechanical defect. And a gas pedal jammed by an improperly installed floor mat is not “sudden acceleration.”

Emison still hasn’t addressed the dispositive statistical evidence. But I see he now admits that the “102” figure he repeatedly gives doesn’t actually reflect “hundreds” of deaths from sudden acceleration, since even he admits at least some of those reports reflect driver error, and others reflect rare, and since-corrected, non-electronic problems. I doubt he’ll apologize for calling me a “liar” for refuting his original exaggeration, an exaggeration he has continued to repeat.

11 Brett 07.20.10 at 12:19 pm

Ted,

I have never contended that all sudden acceleration is caused by electronic malfunction. I have repeatedly stated that Toyota has, in fact, acknowledged two source of sudden (or, if you prefer, “unintended”) acceleration. I have also acknowledged that, certainly, some cases are even caused by driver error. What I have not done is sought to eliminate causes upon which experts in the field claim does (or could) cause or contribute to cause unintended acceleration events.

The rules of civil procedure require a reasonable investigation to support a claim of defect or negligence. Here, we have more than 10 million vehicles recalled for the this defect by Toyota and Toyota’s own admission of at least two sources of sudden/unintended acceleration.

Obviously, pre-suit, injured plaintiffs do not have access to the documents or testing required to fully investigate a claim such as this. That is why the rules also provide for discovery in which claimants can discover and review Toyota documents, testing, etc. It also permits the claimant to discover additional government testing and consumer complaints.

Your post at pointoflaw called me a liar its headline and accused me (and all other trial lawyers for matter) of not only stealing, but of killing people for money. I pointed out only that your assertions were demonstrably false and you had, indeed, lied about me in your post.

Your claim that Haggerty’s acceleration event “seem[ed] to have had a fluke mechanical defect” is unsupported by an fact. The entire point of the Haggerty event is that the cause remains undetermined. Yet, you refuse to even acknowledge the possibility of additional cause.

You ended your previous comment having continued your personal attacks and name calling. I refuse to do the same.

I’ll sum up here as I did in comments to my own post:

I did not intend to engage in a such a protracted and contentious debate. It seems we have gotten far afield from the original topic of a simple round up of Toyota news .

It also seems we have failed in our duty to “disagree without being disagreeable” and it appears our substantial disagreement and diverging points of view will not be resolved in this forum.

Significant debate has its place, but it appears to have played itself out here. Rather than continue these attacks, I suggest we permit our arguments and evidence to stand for themselves and, for now, agree to disagree.

12 Ted Frank 07.20.10 at 12:43 pm

You did lie. I criticized your false statement that “hundreds of people were killed by Toyota acceleration.” You acknowledge that that statement is not true, because (1) the number of complaints to NHTSA of fatalities is only 102; and (2) at least some of those reports reflect driver error. We disagree whether the correct number is zero, but there does not appear to be disagreement that there is no evidence for your false statement that “hundreds of people were killed by Toyota acceleration.”

The trial lawyers who are suing Toyota with junk-science allegations of electronic defect are indeed attempting to steal, and their bad-mouthing of Toyota will result in decreased safety that kills people. If a corporation engaged in that behavior in pursuit of profit, trial lawyers wouldn’t hesitate to condemn it, and I fail to see why trial lawyers shouldn’t be held to the same standard—or an even higher one, given trial lawyers’ claims to be acting in the public interest.

13 Jim Collins 07.20.10 at 3:03 pm

Now if the term “reasonable” could be defined, we wouldn’t be having this discussion.

14 AJ 07.20.10 at 4:36 pm

Brett must watch a lot of Glenn Beck.

I understand that most people reading this post and these comments do not believe there is an electrical or electronic cause of sudden acceleration. But so long as it remains a “reasonable” possibility – or even a possibility upon which experts in the field disagree – shouldn’t Toyota and government regulators continue to investigate the possibility if doing so might save lives?

This is just like saying:
I understand that most people reading this post and these comments do not believe vampires exist or that anyone has been killed by a vampire. But so long as it remains a “reasonable” possibility – or even a possibility upon which experts in the field disagree – shouldn’t The Vatican and government regulators continue to investigate the possibility if doing so might save lives?

15 DensityDuck 07.20.10 at 6:28 pm

@Jim: p’raps the government could pass a law defining reasonable behavior by lawyers?

(ow, stop hitting me! i was kidding! OW!)

16 CTrees 07.21.10 at 7:29 am

@Jim: Oh, but that’s easy. All it means is, “the standard or level a reasonable person would hold or expect.”

;-)

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