I was a guest Tuesday on the Roger Hedgecock program at the San Diego Union-Tribune, discussing the way Washington, D.C. seems to have come down at least as hard on Toyota as on General Motors, maybe harder, even though the safety shortcomings falsely attributed to Toyota appear actually to be present in the GM case.
One striking feature of the GM story is the extent to which a culture of putting as little as possible on paper appears to have undermined GM’s capability to grasp the scope of the safety problem with the flimsy ignitions and their relationship to nonfunctional airbags. Bill Vlasic of the New York Times reports:
To the legal department at General Motors, secrecy ruled. Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.
As I’ve often noted, organizations gripped by fear of legal consequences or hostile oversight often develop a “put as little as possible on paper” mentality, even though such a mentality regularly proves counterproductive to the organization’s mission by fostering ignorance and lack of coordination and allowing bad practice to take root.
Popular radio host Mike Rosen had me on his program last week to talk about the Justice Department’s aggressive use of criminal law against the Japanese automaker (earlier here). Also check out Canadian columnist Terence Corcoran’s view: “Intended media acceleration and the assault on Toyota” [Financial Post]
Last week the Department of Justice announced a deal with Toyota in which the Japanese automaker would fork over $1.2 billion and place itself under supervision for allegedly not being forthcoming enough with information at the height of the 2009-2010 panic over claims of unintended acceleration in its cars. The acceleration claims themselves had turned out to be almost entirely bogus, and were refuted in a report from the federal government’s own expert agency, NHTSA. Instead, the prosecution relied on a single count of wire fraud: Toyota had supposedly given regulators, Congress and the public an erroneously positive view of its safety efforts. It should therefore have to “forfeit” a huge sum supposedly related to the volume of business it did over a relevant period.
I’ve got an opinion piece in Monday’s Wall Street Journal (unpaywalled Cato version here, related Cato post here) about this whole appalling affair, which should frighten other businesses that might face draconian charges in future not just for compliance infractions, but more broadly for defending their products in the court of public opinion. Meanwhile, the Justice Department’s grandstanding and demagogic press release goes to some lengths to leave the impression “that unintended acceleration is some mysterious phenomenon of auto design unrelated to flooring the accelerator.” Someone here is irresponsibly misleading the motoring public and withholding vital safety information, but it’s not Toyota.
A few related links: NHTSA unintended acceleration report, Car & Driver’s coverage, and my 2010 opinion piece. And Holman Jenkins at the WSJ (paywalled) compares the still-unfolding story of ignition problems at GM, also discussed by Paul Barrett at Business Week.
Imagine how much they might have gotten if the cars had actually been suddenly accelerating! “Do We Really Want To Regulate This Way?” asks Daniel Fisher [Forbes]
It’s behind a paywall, but the WSJ columnist looks into a question touched on repeatedly in this space and connects it to the unpredictability with which juries may credit expert testimony, as an Oklahoma jury recently did in Toyota litigation:
Toyota had been vigorously fighting hundreds of complaints that its cars are prone to unintended acceleration. Now it’s moving toward a global settlement as a consequence of a single Oklahoma lawsuit that appears to establish that Toyota can’t prevail if it can’t prove a negative—that its software didn’t go haywire in some untraceable and unreplicable manner. …
The Bookout jury was apparently impressed by the testimony of software expert Michael Barr. He said a single “bit flip” (the smallest instance of data corruption) could cause uncontrolled acceleration when the driver had been using cruise control, stopped using cruise control, then resumed using cruise control to let the car accelerate back to its selected speed. …
The connection to Ms. Bookout’s crash, which didn’t involve cruise control and took place on an exit ramp? None, except Mr. Barr claimed that “software failure is consistent with the description of the [Bookout] accident” and “more likely than not” a factor.
Jenkins notes, as have others, that if some mysterious and unreplicable bug is causing Toyotas to accelerate suddenly while disabling the brakes, it seems to differentially appear in cars being driven by elderly drivers, which are greatly overrepresented in the crash statistics.
More: Kyle Graham on whether vaccine liability limits make a plausible precedent for limits on liability for driverless cars.
Lawyers have taken unintended-acceleration cases to trial on a variety of theories, including pedal placement and lack of brake override, but have not had much success in arguing that electronic gremlins inhabit the vehicle and that the driver was correctly pressing the brake. Has their luck changed with an Oklahoma jury’s new verdict? The Japanese automaker doesn’t seem to want to take chances, and promptly settled the case, represented on the plaintiff’s side by Montgomery, Ala.’s Beasley Allen. [National Law Journal, The Truth About Cars; Peter Huber on the Audi scare a quarter-century ago] Commenter at TTAC: “I’d like to see this happen with a jury of engineers.” More: Mass Tort Prof.
“A jury cleared Toyota Motor Corp. of liability Thursday in a wrongful death lawsuit filed by the family of a Southern California woman killed in a 2009 crash that occurred amid widespread reports of unintended acceleration involving Toyota vehicles.” Despite regular hints in places like the Los Angeles Times that undetected electronic defects might be to blame for sudden acceleration, lawyers for Uno’s family went to trial on the more prosaic theory that Toyota was wrong not to have included a brake override system in the car as an added help to drivers who might be unable to correct a depressed gas pedal. A jury disagreed. [AP/NBC Los Angeles; L.A. Times]
The New York Times columnist responds to critics of his coverage (earlier here, here, etc.) of the BP Gulf spill claims bonanza:
Until that story [on the silicone breast implant episode], I’d always taken the liberal view of plaintiffs’ lawyers as avenging angels, righting wrongs and helping wrest compensation for people who had been harmed by greedy corporations. …
[Since then] I’ve seen mass torts where the actual plaintiffs get coupons while the lawyers reap millions. Mass torts where the connection between the product and the harm is illusory. Mass torts built on fraud (silicosis). Complex litigation settled for billions even when the government implies that consumers are responsible (Toyota sudden acceleration). I’ve also seen cases where some victims hit the jackpot with a giant jury verdict and other victims come up empty. Or where a corporation really has done harm but pays off the lawyers instead of the victims. Over the years, I’ve thought: There’s got to be a better way.
Read the whole thing [via Ted at Point of Law]
The bogus Toyota sudden-acceleration scandal, fed by credulous media and hungry lawyers, has now cost the Japanese automaker upwards of one billion dollars on paper in settlements, despite the lack of an actual mechanical basis for the claims. (The “on paper” is a necessary qualifier because class action settlements typically fall short of transferring the actual sums declared) Yet many more lawsuits remain unsettled, including one nearing trial alleging that the automaker was negligent in not installing a system that cuts off accelerator power when the brake pedal is depressed. Whatever their value as a gesture of reassurance, such systems are of no help whatsoever in the actual sudden-acceleration accidents that typically make it to court, in which drivers mistakenly believe themselves to be pressing the brake when their foot is actually on the accelerator. [L.A. Times, whose coverage as usual disappoints]
P.S. National Law Journal coverage of pending trial:
“The heart of the mass tort was always the electronic throttle control. The fact that the first trial is going and not bringing that theory is interesting,” said Byron Stier, a professor at Southwestern Law School in Los Angeles who specializes in mass tort litigation. “Look how far that is from the original panic of this.”
We now know that the panicky tales of electronics-driven sudden acceleration in Toyotas, as urged on the nation by trial lawyer allies like Clarence Ditlow and Joan Claybrook, were sheerest fantasy. That’s no real surprise, since earlier reports of mechanically arising sudden acceleration in Audis and other brands of automobile (also urged on the nation by Ditlow et al.) proved equally imaginary.
But the media never learns, and if they don’t, why should the government? So the National Highway Traffic Safety Administration is proposing a rule that would require all auto designs to include “override” systems which shut off the accelerator if the brake is pressed. This will have no effect at all on typical “sudden acceleration” accidents, which arise from drivers’ hitting the wrong pedal, since those drivers already imagine themselves to be hitting the brake. They will have little if any effect on the extremely rare floor mat entrapment cases in which an accelerator gets trapped in the depressed position, because drivers can already overcome such acceleration by pressing the brake pedal if it is available, while if it is not available because of mats or other obstructions, the efficacy of the override may fall short of what is hoped.
But at least the government will be able to say that it did something.
I did find it interesting in the Washington Post account that Ditlow seems for the moment to have joined the rest of us in agreeing that pedal misapplication is the big cause of these accidents, the better to afford him a vantage point to criticize NHTSA for Not Doing Enough on that front. That’s quite a change from what you hear from him at the height of these panics, when he tends to talk up every possible cause of unwanted acceleration other than driver error. When the next sudden-acceleration panic breaks out, I fully expect CAS to be back pitching the electronics theories again.
P.S. Plaintiff’s lawyer and longtime Overlawyered favorite Steve Berman asserts that there have been “thousands of crashes, hundreds of deaths,” a claim the National Law Journal’s Amanda Bronstad relays without skeptical comment.
John Cook at Gawker wants to know how a coveted Edward R. Murrow prize could just have been bestowed on the Toyota-panic reporting of ABC’s Brian Ross (“America’s Wrongest Reporter”), given that it showcased staged, fakey footage, relied heavily on the assertions of a safety consultant whose plaintiff’s-side involvement in the controversy went unmentioned, and omitted details that would have raised readers’ doubts on key themes, among many other sins. Later investigations, of course, decisively refuted the lawyer-stoked fears that Toyotas have some mysterious tendency to accelerate out of control. More: Ted Frank and Hans Bader, and my take on the sad history of media irresponsibility on car-safety scares.