Toyota theories shift

by Walter Olson on January 9, 2011

Unable to show any electronic flaw in the vehicles, plaintiff’s lawyers switch to the theory that the automaker should have embraced “brake override” technology that disengages the throttle when the brake is applied. That technology doesn’t work, of course, if the driver is in fact mistakenly hitting the accelerator when intending to hit the brake — which was what happened in earlier sudden-acceleration scares, and looks likely to be the cause of most of the Toyota incidents as well. [L.A. Times]

{ 22 comments }

1 Patrick 01.09.11 at 1:41 pm

Which leads to the question, why does Toyota design a car with an acceleration pedal so close to the brake pedal? Obviously the acceleration pedal should be at least yard away from the gas pedal, so that no one can mistakenly press it during a sudden emergency.

2 John Burgess 01.09.11 at 3:52 pm

Maybe the brake or accelerator should be controlled by hand, rather than foot. That way there’s no confusion!

Or, perhaps we can get a new federal program which provides drivers for all vehicle owners. These highly professional government employees will be bonded and insured by the state.

As people drive (or want to be driven) at odd hours, perhaps as many as three drivers per owner should be considered. This will obviously help solve the unemployment problems we’re facing.

We will still be faced with the paradox of ‘Who Drives the Driver’, but I’m sure a commission can be called together to resolve it.

3 Brett 01.09.11 at 10:45 pm

The LA Times story is incorrect. There has been no shift in strategy. The strategy in most litigation is (1) to identify the cause of defect; (2) show the defect caused the injury; and (3) identify a reasonably feasible remedy that would have prevented the injury.

Here, Toyota has identified at least two known failure mode for SUA: (1) floor mat interference; and (2) “sticky” trottle pedals. Safety advocates, industry experts, and (yes) plaintiffs in Toyota suits have identified a third: electronic malfunction.

All three identified defect-failure-modes are cured by implementing a brake override system. Regardless of three identified defects that cause SUA, the brake override system solves the problem.

Toyota could have implemented a brake override system for less than $1 per vehicle, but it didn’t.

Other manufacturers have used this critical safety device for decades. Nissan has used brake override technology since it introduced electronic throttle controls in 2002 and is currently bragging about it’s own brake override technology.

4 Mike 01.10.11 at 11:50 am

Brett,
You clearly have a biased opinion (as do I). In auto PL injury litigation, the pattern is (1) focus on damages, next (2) show the possibility of a defect, and (3) ignore causation.
Even without the throttle cut off system, the brakes on most cars are strong enough to overpower acceleration. If you think Nissan no longer has sudden acceleration litigation, you are mistaken.
99% of sudden acceleration is driver error. If a driver is aware enough to take his foot of the gas and put on the brake, he just solved his own problem and doesnt need “brake override”.
Again, brake override technology wont stop sudden acceleration events (or claims) at all, but it will help the auto companies defend them, because now plaintiffs will have a much harder time saying they were using the brake.

5 Bill Alexander 01.10.11 at 12:15 pm

I have a car that solved the problem of accelerating when accidently pushing on the gas instead of the brake. A 1957 Nash Metropolitan. Now, if I could just get it started. . .

6 Benji 01.10.11 at 12:59 pm

I thought one theory behind sudden acceleration is that there’s so many computer parts, bits of code, and electronic systems involved in today’s vehicles that it’s impossible to know how they’ll all interact. And we’re solving this problem by… introducing additional electronic systems in vehicle operation?

7 Brett 01.10.11 at 2:27 pm

Mike,

With due respect, your simply not correct about injury cases. For a plaintiff’s lawyer to accept a case — particularly a cases against an auto manufacturer — there has to be very good evidence of (1) defect; (2) causation; and (3) injury.

Unlike defense lawyers, plaintiff’s attorneys do not get paid by the hour. We only get paid if we win. If a plaintiff’s lawyer accepts a weak case — or, even worse, a frivolous case — he or she must still invest thousands of man hours and hundreds of thousands of dollars to take the case to trial.

Juries are smart. A jury will not award damages if there is no evidence of (1) defect, (2) causation; and (3) injury.

What’s this 99% statistic on driver error to which you refer? Do you have cite? Please, show your work.

8 CarLitGuy 01.10.11 at 4:01 pm

Brett,
while I’ve heard that claim repeatedly, its not been my general experience with many of the plaintiff’s attorneys in auto litigation I’ve had dealings with. To the contrary, most cases appear to have minimal involvement by plaintif’s counsel, with extensive and expensive discovery to run up defense costs, and a plan to settle based in no small part on the costs of defense. The exception, of course, are those counsel who find very strong cases, and go “all the way” regardless of defendant’s willingness to place reasonable settlement value on the claim.
Unfortunately, there are few cases, published or otherwise, to back my claims, because defense of nuisance claims is often not cost effective. However, you may wish to review cases like Edward and Rita Belfour v Schaumberg Auto, Julio Dominguez v American Suzuki, and Lena Lopez-Bradley v Hyundai Motor for the later. For the former, Frank M Silvio v Ford Motor, Figiel v Hyundai Motor, Lester Goodson Pontiac v Rhea Elliott, or any of the similar cases where substantially all of the plaintiff testimony was the word of the owner, without other credible evidence or experts – generally on “diminished value” or “deceptive trade” type claims.

Admittedly, these aren’t “injury” claims, but neither are the “unintended acceleration” class action and related cases against Toyota.

9 CarLitGuy 01.10.11 at 4:37 pm

.self correction.

Neither are (most) of the “unintended acceleration” class action and related claims against Toyota.

10 Brett 01.10.11 at 6:04 pm

CarLitGuy,

I don’t know if you’re an attorney or what auto litigation you have had dealings with, but as a plaintiff’s attorney who represents those injured or killed by defective products, your experiences are far different from mine.

We turn down at least 10 cases for every one case we do take. There is no such thing as a “nuisance value” auto defect claim. Auto defect cases are simply too expensive and time consuming to pursue.

11 CarLitGuy 01.10.11 at 6:41 pm

Brett,
in partial answer, I’ve been at this longer than you’ve been in practice. Just finished Lawson v deBoer, which touches on some of the fee issues I mentioned above, albeit indirectly. It also supports your observation that cases are not always easy or inexpensive to pursue.

Am currently reading Peters v GMC – possibly an indication of your interest in the subject of unintended acceleration…

It appears our experiences do substantially differ.

12 Brett 01.10.11 at 8:27 pm

CarLitGuy,

I didn’t recall that Lawson resulted in a reported decision (unless you’re referring to the federal court’s order remanding the case after the defendant’s wrongful removal), but thanks for reading up. We can talk about Peters sometime.

Baker v. GM (also one of ours) is a better read and GM’s payoff to its former engineer provides an example for what plaintiffs are up against in an auto defect lawsuit.

13 No Name Guy 01.11.11 at 12:22 pm

Brett….dude….stop it….you’re killing me…..my sides are hurting from laughing so hard.

“For a plaintiff’s lawyer to accept a case — particularly a cases against an auto manufacturer — there has to be very good evidence of (1) defect; (2) causation; and (3) injury. ”

Ha, ha, ha, ha, ha……

Let me correct that for ya: “For a plaintiff’s lawyer to accept a case – particularly a case against an auto manufacturer – there has to be be 1) a sympathetic plaintiff – pretty ladies and children are preferred (2) The ability to articulate some load of BS that may have a passing resemblance to physical reality of car design, but that is so complex and detached from reality, that the jury of lay people, who are mostly innumerate and ignorant of science and engineering principals can be BS’ed into anything, especially if there is no objective, reproducable evidence to prove / disprove my theory (3) That the potential pot of money is so large, that I can play the numbers and roll the dice on it, knowing that if I don’t win this one, the next one will more than make up for it.”

There, fixed your case selection criteria for you.

Occam’s Razor indicates Toyota (and earlier sudden acceleration cases) are user error: Stomp the foot on the gas, not the brake – period. That’s why these “defects” disproportionally happen to the youngest and oldest drivers (hmmm…two groups that may not be the sharpest behind the wheel).

If sudden acceleration was a physical manifestation of the design, the probability of it occurring would be independent of the drivers age / ability / experience / skill instead of having a solid correlation with both youngest and older drivers. Unless that is, the least experienced / least capable drivers put out some “vibes”, EMI, bad karma or what ever that affects the vehicle . If SA were a physical manifestation of the design, it (SA) would also be reliably reproducible in a test environment (apply stimulus that causes SA, get SA, remove stimulus that causes SA, SA ceases).

14 Benji 01.11.11 at 1:44 pm

@#13: It’s been argued that defects might not disproportionately affect the very young and very old, they’re just reported that way. Very young and very old victims a) are more likely to die or be seriously injured in crashes, and b) get more reporting focus because they’re sympathetic victims.
Not that I’m disagreeing with you – I think it’s all a witch hunt and people are yelling so loudly about how evil Toyota is that they can’t hear any of the information that might show it wasn’t all their fault.

15 David Schwartz 01.11.11 at 1:59 pm

Brett: Of course once you know what happened, you can design a product so that the particular failure mode is impossible. That’s why we have cases where a manufacturer was sued for doing X and not Y and then cases where they were sued for doing Y but not X.

The main problem is two-fold. First, showing a ‘defect’ and showing it caused an accident doesn’t establish that there was anything *wrong* with the product. “Defect”-free products are impossible and even if they were possible, the costs would wildly exceed the benefits. The real world is filled with subtle trade-offs.

Second, the new changes always introduce new (and usually more likely) failure modes. What is the failure rate for the proposed brake override systems? Brake switches do fail and cause a false positive. Without these override systems, this will just result in a spurious brake light indication. With them, it will mean the car will be unable to operate.

Whatever is the right way to make this complicated decision between implementations, the legal system is *definitely* not it, because (among other reasons) it has no good way to balance the significant interests of non-parties.

All of the identified failure modes are also cured by competent driving. (And, to be fair, competent driving instruction.)

16 Brett 01.11.11 at 2:20 pm

No Name Guy — your anonymous comment is also quite funny, for it lacks any basis in reality and not only ignores rules of pleadings, evidence, and ethics, but also the economic realities of product defect litigation.

Your fundamental misunderstanding of juries, their value and their intelligence is not just concerning, it is sad. Juries – contrary to your assertion – are quite intelligent. Juries are not easily fooled or misled. Indeed, juries come pre-loaded with a great deal of skepticism about plaintiff’s and claims of defect (thanks largely to commentary and sites such as this).

Remember, even Toyota has admitted there is a problem. It recalled more than 10 million vehicles worldwide, halted production on millions more and has paid more than $30 million in SUA-related fines without appeal or protest.

David – the standards to which manufacturers are held most often include an element of reasonableness — whether called for directly or merely implied under the law. Again, juries are smart. Juries will not hold a manufacturer accountable for a defect that was impossible to foresee.

With respect to Toyota SUA, it appears Toyota has known about the problem since at least 2002 and attempted to cover it up. Toyota’s own internal documents bragged about saving $100 million in avoiding/delaying an earlier recall. Second, Toyota has had the means to cure its own liability for this problem since the beginning for less than $1 per vehicle using a brake override system (used for decades by other manufacturers and finally implemented now by Toyota).

Gang – that ends it for me on this discussion – gotta get back to work.

17 David Schwartz 01.12.11 at 12:16 am

“Remember, even Toyota has admitted there is a problem. It recalled more than 10 million vehicles worldwide, halted production on millions more and has paid more than $30 million in SUA-related fines without appeal or protest.”

Toyota’s damage control and strategic decisions say virtually nothing about the validity of the underlying complaints. Toyota’s best strategy was to appear to be doing something about the problem to convince people they had fixed a problem that never actually existed. If anything, it shows their justified lack of confidence in the US legal system.

“David – the standards to which manufacturers are held most often include an element of reasonableness — whether called for directly or merely implied under the law. Again, juries are smart. Juries will not hold a manufacturer accountable for a defect that was impossible to foresee.”

That’s not what I said. That someone will press the accelerator instead of the brake is trivial to foresee. That the accelerator might jam or give a false reading is trivial to foresee. That this might even cause an accident is trivial to foresee. It just does not follow that it means there’s anything wrong with the product.

“Toyota has had the means to cure its own liability for this problem since the beginning for less than $1 per vehicle using a brake override system (used for decades by other manufacturers and finally implemented now by Toyota).”

Because it’s not worth $1 per vehicle, except when you include the costs of senseless fear-mongering and an out of control legal system.

18 Ted Frank 01.12.11 at 10:10 am

I find it hard to believe that a brake override system costs $1 per vehicle. Leaving aside the fact that a brake override system wouldn’t have made a difference here except perhaps in the one San Diego case where the dealer installed the floor mats wrong and Toyota has already settled for millions of dollars.

19 Ted Frank 01.12.11 at 10:11 am

Brett, I’ve first-hand seen plaintiffs’ attorneys take cases where there was no defect and invented one with a quack expert.

20 No Name Guy 01.12.11 at 12:35 pm

Brett:
Uhh…how is it that Toyota can cure sudden acceleration caused by driver misapplication of the gas with a brake override system? It’s the driver pushing the GAS, not the brakes that’s the cause. Brake override will have zero effect in this case. That seems to be pretty common….lawyers proposing solutions to problems that don’t address the fundamental cause of said problem.

“the standards to which manufacturers are held most often include an element of reasonableness — whether called for directly or merely implied under the law. Again, juries are smart. Juries will not hold a manufacturer accountable for a defect that was impossible to foresee.”

Ha, ha, ha, ha, ha…… dude….again, stop it….really….I’m going to have to get a personal injury attorney and sue you for hurting my sides.

Post facto design is all that juries and smart guy plaintiff lawyers do (see your own laughable attempt above), Monday morning quarterbacking at it’s worst and by folks with zero to trivial ability to understand the subtleties of engineering design and trade offs (oh yeah, that’s right, there is NO trade offs in the Lawyer Fantasy World of Designing Products for the Real World).

David hits it spot on the X for Y, Y for X, damned if you do, and damned yet again if you don’t, because Slick Lawyer says you should have done something else entirely. Read the whole thing on laminated glass for side windows versus the current standard of tempered glass. When poor no seat belt Suzie is ejected out the side window, she or other relative sues car maker for not putting in laminated glass. Never mind that tempered glass side windows are safer for the vast majority of folks involved in car wrecks or perhaps driving into a lake / other body of water accidents, or where a car-be-que is getting going with a jammed door after a violent collision, etc. There you go – concrete example of a supposed “defect” that is in fact the best design.

But, Suzie was a pretty young lady, cute long blond curly hair, popular, a really nice girl, newly minted college graduate with a promising future ahead of her, straight as an arrow, gave blood every six weeks (had her 10 gallon pin), worked with needy kids, engaged to the captain of the football team, snuffed out by Greedy Big Auto company that, for only a dollar, could have put laminated glass in the side windows that would have saved her (and killed a few dozen others, but they’re not part of this case, we’ll get around to suing for them later, AFTER Big Auto put’s in laminated glass). Yes….her future earnings would have been millions, and the emotional trauma for Suzie’s Mom and Dad is incomprehensible. Yea…plus the millions in punitive damages. Yeah…tough economics there Brett when you get a 1/3 of 10 to 20 million when you get “justice” for poor Suzie (who really died because, although she was a very nice gal and all, she was fool enough just this one time to not wear her seat belt and to take a turn just a little too fast for conditions, skidded off the road, tires dug into the gravel, and flippy, flippy, flippy). You have to hit that what, once every 3 years to have a pretty decent living there Brett? Or manage a lesser settlement for a nice low 7 figures (insurance limits perhaps) about what, once or twice a year? Yeah, tough economics.

The fundamental problem there Brett, is the lawyer profession doesn’t have to deal with immutable physical reality, you know, of the F=mA kind, or 2nd Law of Thermodynamics, or E=mc^2, stuff you can’t arm wave away. If you file the right paperwork and blah, blah, blah up something convincing to the 12 folks you select, no, cherry pick (and cherry pick to have just the right characteristics you want – just the right bit of gullibility, semi-literacy, innumeracy, etc), you win – period.

Your attempted diversion, to the rules of pleading, ethics, etc claiming these as a restraint is a joke. Most lawyers probably have a bag full of ways to skirt the rules in spirit, all while complying with the rules in letter. Have you actually read much on this site? If so, wow…you’re blind to the shortcomings of some elements of the Lawyer profession, if not, I suggest you start reading. Rules of pleadings…… Oh sure, miss a date and you get smacked, but argue a set of facts or conclusions that has no basis in physical reality and meh….nothing as far as down side consequences.

File, respond, cross complaint, discovery, blah, blah, blah, blah, blah…all the while bleeding your opponent dry….all because someone hit the gas, not the brakes.

21 Bill Alexander 01.12.11 at 12:48 pm

I work with a bunch of physicists, and every one of them will tell you that any jury call with a hint of logic or science results in being excused. The lawyers want people who don’t really think. re. O.J. jury.

22 CarLitGuy 01.12.11 at 3:18 pm

Peters v GMC (I mentioned above), Plaintiff’s expert apparently opined that the system was defectively designed because it did not include four resistors. The Manufacturer apparently responded that the system DID include four resistors as suggested by the expert. Expert appears to have changed the theory to mean some other kind of resistors than those the manufacturer chose.

It does not appear that GMC preserved their challenge of plaintiff’s expert in that case for appeal, or perhaps the case would have come out differently. Certainly, the description of the events, the (loosely summarized) transient electrical fault from some unspecified source theory, and the inability of any party to demonstrate that the cruise control was demonsterably defective after the accident would be a familiar story to readers here.

Brett,
followed your Baker v GM link, the summary makes no mention of a payoff to an engineer. To the contrary, it appears the engineer was laid off/terminated, and had an unrelated (to your firm’s litigation) claim against GM. Doesn’t look like a payoff of a neutral witness to me, but perhaps the decision in that case is more supportive of your allegations. In any event, the GM in that case no longer exists as a going concern, and huge numbers of its employees at that time were laid off or retired. Possibly the new company is different.

Not that discovery abuse doesn’t happen. Even by auto makers. Bentley was recently sanctioned in California, and one of the “H” manufacturers in Washington (Honda or Hyundai, I forget which) last year. Have previously mentioned in these forums.

Simply not as prevalent, in my experience, as advancement of frivoulous claims on dubious theories by certain members of the plaintiff’s bar.

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