Feb 14, 2010

Last week, I listened to top American and Japanese executives express remorse over the defective gas pedal acceleration issue which appears to plague nearly all of Toyota's recently built models. It got me thinking about how this story developed.

Some years ago, a small number, but remarkably similar, complaints were reported by Toyota owners. These complaints included sudden acceleration, braking delay, or both, resulting in injuries and deaths. Over the next several years, I must have talked to half a dozen or more people who personally reported that they themselves or a family member had an unexplained acceleration or failure of the brakes in their Toyota, resulting in an automobile accident. However, Toyota claimed to be investigating each alleged occurrence with impressive black box data, and a team of well-qualified scientists and engineers. In actuality, Toyota used fancy engineering terms in denying the existence of any problem and cited driver error as the plausible counter-explanation for the wreck.

Despite spending years insisting that these problems were mechanically impossible, in the summer of 2009, Toyota announced that the driver's car mats in certain models "may" be causing "the problem." But in an even more provocative move, last week, Toyota announced that a recall was necessary of many models to add a component to the accelerator pedal to address what Toyota now calls a "stickiness concern" related to the gas pedal which "might" over time cause the vehicle to "unexpectedly accelerate."

On the Today Show early last week, the United States Division President of Toyota, Jim Lentz, expressed remorse for the problem which he claimed only became known to the company in October, AFTER announcing (perhaps erroneously) that the floor mats might be the culprit. He said it was more likely that a missing component to the gas pedal either in addition to the floor mat issue or separately "might" be causing or contributing to the "stickiness." He went on to identify (without seemingly blinking even once) that it could NOT be an electrical problem causing this "sudden acceleration, or delay reported in brake response" as there are fail safe systems on top of fail safe other systems that prevent this from being caused in the electrical system. Of course, later in the week, the grandson of the founder of Toyota, CEO Akio Toyoda (yes, the company changed its name slightly from it's founder in the 1930's) expressed his remorse to his customers.

Most recently, Toyota announced an additional concern with the "software" in the Toyota Prius and Lexus Hybrid which also might explain the delay in brake response in those vehicles. So, accordingly, Toyota drivers can take comfort in the fact that it is "not the electrical system," but instead perhaps a software glitch that explains these many injuries and deaths in addition to floor mats, and a sticky accelerator, that Toyota has been denying the mechanical viability of for years.

Thus far, United States media reaction has been consumed with the nature of apologies from the corporate officers and how unusual it is for a Japanese executive to make such an apology. However, when the shock waves of these concessions pass, I expect to hear words like corporate conspiracy, fraud, deception, and finally criminal prosecution.

These events cause me to recall my very small legal role in a famous case against General Motors ("GM") from the 1980's. Back then, it was discovered that GM had learned that its 1970's model van had an automatic transmission that would, without prompting, slip out of park and move into reverse. This resulted in unattended vehicles, often with engines running, becoming very dangerous safety risks for anyone in the proximate vicinity of such an occurrence. In fact, fire and police agencies were regularly reporting such events for years before any acknowledgments were made. Each was met with an official denial of fault.

However, even at the time of these well-explained and what appeared to be plausible engineering-based denials of responsibility, GM was aware of the genesis of the problem and the safety risks associated with it. As I recall, the cost for the proposed fix was about $15 per vehicle. GM, despite being aware of the risk of human lives being lost or destroyed, felt the cost of the fix was simply too expensive.

Some years after that unfortunate decision, I remember meeting a 23-year-old mechanic who was one of many who suffered the effects of GM's secret. That young person was paralyzed just below the jaw. GM's secret cover up stayed secret until the lawyers I worked with uncovered the deceit. The evidence that exposed what GM knew and when they knew it came out of masses of documents turned over by GM after the Court ordered them to produce the documents.

Being a student of history, I am reminded that the Ford Pinto had a known tendency to explode on mild rear impacts. Furthermore, Ford's knowledge of the problem was so complete that they had internal documents that made an actuarial assessment that it would be cheaper to pay the few surviving victims who had the guts to sue AND who managed to find a lawyer that had the smarts to discover the KNOWN problem than it would be to fix the problem and make the car safe. Again, documents stated all of this clearly and they were discovered through court-ordered document production.

With companies building unsafe products who then hide behind branding, advertisement and public relations firms, I am left wondering how it is possible that trial attorneys ever managed to get such sinister reputations in the pool of public sentiment?

Fundamentally, what separates mega companies like Toyota from others (particularly trial lawyers) is their financial ability to hire Madison Avenue advertisers, public relations firms, and defense lawyers and their ability to spend generously to commission well-controlled studies with well-controlled results that can then be published as "facts."

But what gives the public a chance at invoking real corporate change and responsibility is the trial lawyer.

When the last chapter is written on Toyota and this "unwanted acceleration/delay in brake reaction" scandal, in my view it will be determined that hundreds of people needlessly died, thousands of people needlessly were injured and it will be the trial attorneys who will bring to light the full extent of this scandal.

Furthermore, while Japanese companies are fond of claiming in US product liability litigation that they maintained no engineering vehicle testing documentation, it will be these trial lawyers and the court orders they receive granting document production that will prove the full extent of Toyota's breach of public trust.

While driving safely is always a start, car manufacturers prove time and time again that if given a chance to make money and breach the public's trust, they will. Truly, driving safely is simply not enough to assure safety.

At Anderson Hemmat we look forward to speaking with you about these issues. If you have concerns about the safety of your vehicle and are hurt as the result of someone else's negligence, please call and speak with one of our attorneys today.


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