Car Owner’s Bill of Rights

The Case for a Car Owner’s Bill of Rights1

Thomas J. Murray
Thomas J. Murray & Associates
358 Main St.
Huron, OH 44839
[email protected]

On August 28, 2009, a spine-chilling 9-1-1 call from a passenger in an ill-fated car changed the course of automotive history: “We’re in a Lexus . . . we’re going north and our accelerator is stuck . . . We’re going 120 [mph]! . . We’re in trouble . . . there’s no brakes.” The last words were, “Hold on guys, pray! Pray!” Moments later the Lexus ES 350 driven by an off-duty California patrolman, Mark Saylor, careened through an intersection, collided with a Ford Explorer, jumped a curb, plowed through a fence, hit an embankment, and went airborne into the bed of the San Diego River, where it rolled over several times before bursting into flames. Saylor, his wife, daughter, and brother-in-law perished in the flaming crash.

Although the Saylor catastrophe captured headlines around the world, uncontrollable accelerations have been injuring or killing people for 30 years. In 1989, the National Highway Traffic Safety Administration (NHTSA) published an industry-wide study that pinned the blame on “driver pedal error.” In 2009, following the Saylor tragedy and with Congress demanding answers, NHTSA commissioned a team of human factors experts to exhaustively search for evidence that supported its 1989 decision to accuse drivers. The result was a report published in March 2012 entitled “Pedal Misapplication Errors.”

While many lawyers are aware of these studies, few have actually studied them. One exception is this author, who, several years ago, decided to find out what exactly the government’s basis for blaming drivers was. The result appears in the author’s recently published book, Deadly By Design: The Shocking Cover-Up Behind Runaway Cars2. Because the book is the first in-depth study of a problem that has plagued society for three decades, let’s start out by testing the reader’s knowledge about this automotive behavior’s history.

  1. About how many car owners have submitted a detailed report to NHTSA describing how their runaway car could not be controlled with the brakes?
    1. 10,000
    2. 25,000
    3. 37,500
    4. 50,000
    5. 75,000
  2. As of 2014, roughly how many sudden accelerations in the United States have been reported to car companies?
    1. 750,000
    2. 500,000
    3. 250,000
    4. 100,000
    5. 50,000
  3. As of 2014, approximately how many people have been killed or injured in the United States following a sudden acceleration?
    1. 2,500
    2. 25,000
    3. 50,000
    4. 100,000
    5. 200,000
  4. In its 1989 report, how many documented cases of pedal error causing a sudden acceleration did NHTSA cite in support of its decision to blame drivers?
    1. 53
    2. 112
    3. 277
    4. 492
    5. None
  5. Based on an exhaustive search for evidence in support of its 1989 report, how many cases of a sudden acceleration caused by driver pedal error are documented in NHTSA’s 2012 report entitled “Pedal Application Errors”?
    1. None
    2. 11
    3. 112
    4. 326
    5. 2,311
  6. How many carmakers have warned owners about the possibility of an electronically induced sudden acceleration and what must be done immediately to safely terminate the event?
    1. None
    2. One
    3. Two
    4. Three
    5. Four
  7. Which non-governmental organization has provided car owners with explicit instructions how to survive a sudden, electronically induced vehicle acceleration?
    1. The American Medical Association
    2. The American Bar Association
    3. Consumer Reports
    4. Public Citizen
    5. None of the above

The correct answers are: (1) D; (2) B; (3) D; (4) E; (5) A; (6) A; and (7) C.

The carnage caused by runaway cars exceeds the combined casualties in Afghanistan and Iraq. This appalling fact raises the question of whether the time is right for Congress to protect the public from a dangerous combination of corporate negligence and regulatory ineptitude by enacting a Car Owner’s Bill of Rights. The following are three reasons lawyers should consider supporting such a campaign.

1. Car companies alone know about the potential for a catastrophic malfunction in their electronics.

Few people are aware of how extremely complex today’s automotive electronics are. Throttle control is a good example. Unlike cars of an earlier era, there is no cable connecting the accelerator pedal to the throttle plate allowing movement of the driver’s foot to open and close the throttle. Instead, the throttle is controlled by a master electronic control module, or ECM, that in theory should work as follows: When the accelerator pedal is depressed, two independent sensors in the pedal operating off different voltage levels send a signal to separate computer processing units, or microcontrollers. The ECM compares the voltage levels to determine if they agree with the degree of throttle opening requested by the driver’s input on the accelerator pedal. If there is a mismatch, the system is supposed to automatically go into a failsafe mode.

The throttle, which is controlled by an electrical motor, is also fitted with independent angle sensors that send signals to independent microcontrollers that compare voltage levels for mismatches indicating a malfunction in the system.

To function safely, these hugely complex electronics must have 1) software capable of instantly detecting potentially dangerous faults, 2) hardware able to safely transmit signals from 50 to 100 interactive microcontrollers being monitored by the ECM, and 3) a failsafe means of immediately shutting down a failure caused by bugs in the software, a failure in the electronic hardware, or a failure generated by software/hardware interactions. The point here is that automotive electronics are now so complex that, unless manufacturers are required to reveal what they know about what can go wrong, the public will remain at the mercy of the car industry regarding potentially fatal defects.

2. Unless they are required to warn about latent electronic safety defects, car companies will not voluntarily do so.

There is ample proof that carmakers have known since the early 1980s that sudden accelerations are caused by failure vulnerabilities in their throttle control electronics. Initially, every report involved cars equipped with a standalone cruise control system. It was apparent from the outset that unless drivers were inadvertently causing cars to race out of control, the cause had to be the cruise control electronics.

One of the first models with electronic cruise control was Volkswagen of America’s Audi 5000. Almost immediately, reports began to surface of Audi 5000s suddenly accelerating, overpowering the brakes, and crashing. Since every car company had a similar cruise control design, and with President Carter’s appointee, consumer advocate Joan Claybrook, running NHTSA, it was obvious the industry faced the possibility of a safety recall. In 1979, for example, one car company set aside a $75 million reserve to cover a sudden acceleration-related recall.

With the election of Ronald Reagan in 1980, however, the car industry saw an opportunity to evade a recall. When NHTSA began investigating in the early 1980s, it could not find a defect to explain this automotive behavior. Car companies seized on this with a two-pronged strategy: First, they insisted that any defect capable of sending a car suddenly out of control would leave evidence detectable during a vehicle inspection; and second, they claimed that unless the brakes are defective, they will always safely control an acceleration caused by an electronic malfunction. These assertions, which implied that the cause had to be the driver, worked like a charm on NHTSA, which opened and closed dozens of investigations during the 1980s without finding a safety defect.

In November 1986, a CBS “60 Minutes” story about the Audi 5000 finally created public pressure for government action. By that point there had already been at least 50,000 sudden accelerations in the United States, resulting in about 20,000 accidents, 10,000 injuries, and 1,000 fatalities, making runaway cars one of the most destructive problems in automotive history. In the meantime, consumer organizations, like the Center for Auto Safety and the Florida Public Interest Research Group, were clamoring for action by NHTSA. In 1986, for example, the Center for Auto Safety’s Director, Clarence Ditlow, reminded NHTSA that it did not have to have physical evidence of a defect to order a recall:

As NHTSA well knows, the courts have firmly held that NHTSA can establish a safety defect and order a recall “by showing a significant number of failures without making any showing of cause.” The fact that NHTSA says it cannot isolate the precise failed component is no excuse not to order a recall under the law of the land. But . . . NHTSA could satisfy even its higher standard if only it would conduct a thorough investigation.

As car companies internally compiled indisputable evidence of dangerous deficiencies in their throttle electronics, they ignored government requests for internal studies revealing this issue. The following are some examples of such undisclosed evidence, starting with the comments of an aerospace engineer uncovered during discovery in a case involving General Motors.

On September 6, 1993, a General Motors Cutlass suddenly accelerated from a driveway, crashed, and left the driver in a permanent comatose condition with massive head injuries. The plaintiffs’ lawyers obtained memoranda from a Hughes Aircraft engineer in response to a request from GM for help with its sudden acceleration problems that included the following observations:

Upset problems in microelectronics have increased in frequency as device size and power decreases. Upsets could provide a major root cause for GM’s (and other auto manufacturers’) unwanted acceleration problems.

It seems very clear . . . that General Motors vehicles have serious electromagnetic interference problems which are triggering unwanted acceleration . . .

Jim Clore of General Motors Electrical Engineering Center was most eager to talk about his area of concern, which is cruise control . . . . Many clues seemed to point to a particular logic chip on the module being scrambled by electromagnetic interference.

After studying the schematics and talking with their engineers, it is also my opinion that the electrical systems harness on every automobile has evolved to such confused state that it is impossible to eliminate many serious and expensive failures . . . . Hughes should provide GM with electrical systems engineering expertise and guidelines for proper harness layouts.

Had these memoranda been disclosed to the federal government, the underlying cause of sudden accelerations could have been corrected at a modest cost to the industry, and thousands of unnecessary injuries and deaths could have been prevented.

In this same vein are the following comments of senior managers of the Ford Motor Company in records regarding its electronics that a California court ordered the company to disgorge:

Need to quit putting high tech products in low tech environments

We can no longer afford to make every mistake once and must find ways to head off most problems during development

Electrical/electronics are always late in the program. System is “put in car to see if it works.”

We need technology/products developed and on the shelf—we should not develop hardware in the car—we need to prove out before applying to vehicles

Such comments expose how manufacturers rushed untested and unproven throttle control electronics to market, caused a national disaster, and then exploited the fact that their deadly miscalculations could not be proven after the fact by inspecting electronic components. Although today’s throttle control electronics are much more complex, carmakers are still bringing electronic systems to market that lack failsafe protection against a sudden, uncommanded vehicle acceleration.

Throughout the 1980s, field engineers employed by Ford Motor Company regularly investigated sudden accelerations. In a case tried in Maryville, Tennessee, this author cross-examined an executive engineer who had collected and studied hundreds of sudden acceleration-related reports submitted by field engineers. The following is a segment of the cross-examination:

Q: Do you agree that the service investigation reports prior to your retirement contained opinions as to the cause of the event?

A: Yes, sir. Field engineers were required to provide that opinion.

Q: And have you personally reviewed many of those service investigation reports?

A: Yes, sir.

Q: You have already told us you had a committee doing multiple readings of those reports?

A: Yes, sir.

Q: Isn’t it a fact that your people read numerous service investigation reports in which the speed control or one of its components was identified as the cause of a classic sudden acceleration report?

A: Surely.

Q: So these trained investigators in the field were reporting again and again . . . the conclusion that it was something in the speed control?

A: Yes.

Q: That’s what they reported?

A: They reported it.

Q: And they recommended that the speed control servo be replaced, did they not?

A: Yes, sir . . .

Q: Did you ever see a service investigation report involving a vehicle that reportedly took off from a stop where the field engineer concluded it was a pedal misapplication?

A: That wasn’t the general belief. The general belief was that by default they had that conclusion. They could find nothing wrong with the car. That was not something we were even willing to talk about early in the investigation, that it might be people.

Q: That was not my question; you certainly saw reports where they thought it was speed control servo and recommended they replace it?

A: Or something.

Q: Or something in the car; I’m trying to find out whether even one engineer who investigated a sudden acceleration and applied the training he or she had received from the Ford Motor Company ever filled out a report indicating that the problem, the cause, was the driver. Did you ever see that?

A: I can’t point to one.

That Ford was able to conceal from NHTSA these inculpatory findings of its field engineers offers a compelling justification for a Congressionally mandated Bill of Rights with sufficient teeth to deter similar future concealment of latent safety defects.

3. Neither the DOT nor NHTSA can be depended upon to vigorously enforce automotive safety regulations or to warn car owners of latent defects in safety-critical electronic components or systems.

The federal government has demonstrated outright complicity in a lethal cover-up. Except for two stunning facts, this accusation might be harsh: First, the federal government has never documented a single case of an accident caused by a driver inadvertently pushing the accelerator pedal to the floor and keeping it there until a crash occurred; and since these are prerequisites for a sudden acceleration that meets the government’s own definition of a true sudden acceleration, it is deeply troubling that the federal government has never corrected the conclusion that “driver pedal error” is the most likely cause of most sudden accelerations.

Second, NHTSA has never required carmakers to warn owners, much less to provide instructions on how to survive a sudden, electronically induced vehicle acceleration. While carmakers have left people to fend for themselves, “Consumer Reports” has published an advisory entitled “How to Cope With Sudden, Unintended Acceleration: Five Steps That Could Save Your Life”:

  1. Brake firmly. Do not pump the brakes. Do not turn off the engine yet—because doing so would disable the power assist for your steering and brakes.
  2. Shift the transmission into Neutral. Don’t worry if the engine revs up alarmingly; most cars have rev-limiters to protect against damage.
  3. Steer to a safe location and come to a full stop.
  4. Shut off the engine with the transmission still in Neutral.
  5. Finally, shift the transmission into Park or, with a manual transmission, set the emergency brake. Then breathe deep and call for help. Do not drive the car.

Memorize these steps to prepare for the rare chance that you might experience unintended acceleration. Better yet, practice them in a safe location at low speeds until you feel comfortable with them. They could save your life. ( 012910)

Although it is impossible to know exactly how many serious injuries and fatalities would never have happened had the federal government long ago required carmakers to provide owners with a similar safety advisory, we know that thousands of catastrophic crashes could have been prevented. Throttle control, of course, is only one area of automotive electronics that involves a safety-critical system. In many cars, braking, steering, stability, and air bag deployment are also controlled electronically. Moreover, automakers are continually evaluating reports to spot data patterns indicating a possible defect in these safety-related systems. Although it would be unreasonable to require manufacturers to immediately notify owners of every report of a possible latent electronic defect, every car company routinely reviews owner complaints to identify data patterns indicative of a possible safety problem. As a practical matter, therefore, there is no reason carmakers should not be required to advise owners of information patterns pointing to a safety risk, and to explicitly explain how to recognize and respond to a foreseeably possible malfunction.

While the car industry may not warm immediately to the idea of a Car Owner’s Bill of Rights, General Motors’ current problems with ignition switch failures suggest that a Congressionally mandated duty to promptly inform owners of latent electronic defects may work to the advantage of carmakers. For example, NHTSA has failed to set standards for the functional safety of vehicle electronics, much in the same way it failed to regulate vehicle stability during the SUV boom in the 1980s and 90s that led to thousands of catastrophic rollover accidents each year. Had manufacturers been under a duty to warn owners early on of instability problems, companies with rollover problems might have been spared hundreds of millions in litigation costs.

On June 1, 2014, the New York Times published an editorial entitled “Secrecy That Kills” regarding General Motors’ “maneuvering to conceal vital information about an ignition switch defect from government regulators and the public.” The editorial noted that “two Senators—Lindsey Graham, Republican of South Carolina, and Richard Blumenthal, Democrat of Connecticut—have introduced a bill that would make it harder for companies to hide behind private agreements with plaintiffs.” The Times pointed out that hiding safety defects is an issue that “has come up before in the Congress, typically sparked by a safety scandal. But so far no legislation has emerged, in part because of the dubious claims of the American Bar Association and others that such strictures would have a dire effect on the efficiency of the courts and make it impossible to settle lawsuits.”

While 13 deaths and many serious injuries have been linked to GM’s ignition switch defect, the car industry secrecy regarding its electronics is responsible for at least 100,000 injuries and 5,000 fatalities caused by electronic malfunctions about which consumers have never been warned. A report recently published by the National Academy of Sciences (NAS) warned of what will follow if car companies are allowed to conduct business as usual regarding problems in their safety-critical electronics:

It is troubling that the concerns associated with unintended acceleration evolved into questions about electronics safety that NHTSA could not answer convincingly, necessitating a request for extensive technical assistance from NASA . . . [A]s more complex and interactive electronic systems are developed, the prospect of vehicle electronics will be suspected and possibly implicated if unsafe vehicle behavior increases.

The NAS report stands as an admonition that unless carmakers are convinced that disclosing the truth about their electronics makes better business sense than keeping dealers, customers, and the public in the dark about latent electronics problems, a sword of Damocles will remain over the industry’s head. A Car Owner’s Bill of Rights is a concept whose time has come.

1 Copyright © 2014 Thomas J. Murray. This paper is based on the author’s book Deadly by Design: The Shocking Cover-Up Behind Runaway Cars, excerpts of which are included as an Attachment (only in the electronic version of the Reference Materials).

2 Thomas J. Murray, Deadly by Design: The Shocking Cover-Up Behind Runaway Cars (Mark Advertising 2013).