A car-pedestrian crash with tragic consequences in suburban San Francisco may bring about safer crosswalks in California, after a San Mateo County jury this month awarded more than $12 million in damages in a civil trial.

Emily Liou

Emily Liou was in a marked crosswalk at an intersection without a traffic signal on State Route 82 (El Camino Real) in Millbrae when she was struck by a southbound car.  Liou, who was 17 years old at the time of the crash in 2006, suffered extensive brain damage and is left in a permanent vegetative state.  She has required 24-hour care from the time she was placed in the ambulance and will continue to require such care for the rest of her shortened life.

Her attorneys, Richard Schoenberger and Doug Saeltzer, provided evidence that the marked crosswalk, intended to provide more safety for pedestrians, actually left Liou less safe.

“We presented evidence that Caltrans [responsible for the highway] had a dirty little secret,” Schoenberger said.  “Namely, Caltrans has known for years that marked crosswalks at uncontrolled intersections are dangerous in general because they give pedestrians a false sense of security.  These intersections may be safer without any marked crosswalk.  This seems counterintuitive, but statistics, taken from study after study, bear this out.”

Schoenberger and Saeltzer found evidence of knowledge of the dangers of marked crosswalks dating back to a 1972 study commissioned by the city of San Diego.  That study, which investigated 400 pedestrian accidents over a five-year period in the 1960s, concluded “approximately twice as many pedestrian accidents [per pedestrian crossing] occur in marked crosswalks as in unmarked crosswalks.”  Those results were referenced in a later study, sponsored by Caltrans, conducted by the department of civil engineering at California State University-Chico in 1994.  And that study reached the same conclusions:  marked crosswalks have a higher frequency of pedestrian accidents than unmarked crosswalks at uncontrolled intersections.

Then in 2002 the Federal Highway Administration (part of the U.S. Department of Transportation) analyzed more data in a report titled “Safety Effects of Marked Versus Unmarked Crosswalks at Uncontrolled Intersections.”  That report concluded marked crosswalks should not be used on roadways with four or more lanes and a raised median that see an average of at least 15,000 vehicles a day.  At about that same time, Caltrans issued a directive promoting pedestrian protection.  The legislature also got involved, passing a vehicle code instructing Caltrans to pay more attention to pedestrian safety issues.  (Pedestrians are involved in only 3% of vehicle accidents statewide, but pedestrians account for 22% of fatalities from vehicle accidents.)

The crosswalk where Emily Liou was struck

El Camino Real, in the area where Liou was struck, has six lanes of traffic and a raised median and sees an average of more than 25,000 vehicles a day.  “But Caltrans has never once inspected this crosswalk for the purpose of protecting pedestrians,” Schoenberger said.  “They simply left it in place rather than removing it or improving it, as it could, for instance, with pedestrian-activated signals.  Caltrans merely paid lip service to the idea that pedestrian safety was important.”

Schoenberger and Saeltzer discovered Caltrans had never studied the pedestrian accident rate on any of its roadways.  If they had, they would have realized the danger of the crosswalk where Liou was struck, crossing El Camino Real at Ludeman Lane.

Four other pedestrians had been killed or injured in that same crosswalk over the previous ten years, and Caltrans used that as evidence of the crosswalk’s safety.  “Their defense was, look at how many cars went through that intersection,” Saeltzer said.  “They said there had been 90 million cars.  But you can never adequately monitor pedestrian safety if you’re not actually monitoring pedestrians.  And Caltrans has never systematically measured pedestrian crossing rates.”

By never doing a study to determine the number of people using the crosswalk who had the potential to be struck, Caltrans was in essence using the wrong denominator to determine the accident rate.  So Schoenberger and Saeltzer did the study Caltrans should have done, counting the number of pedestrians using the Ludeman Lane crosswalk.

“We found there were only 70 people crossing there every day,” said Schoenberger.  “So it was infrequently used.  But over the ten years prior to when Ms. Liou was struck, there had been four pedestrian accidents, including two deaths.  We estimate there would have been a total of about 250,000 pedestrian crossings during that time.  And four pedestrian injuries out of 250,000 crossings, by traffic engineering standards, is a very high rate.

“We found people working at businesses in the area who told us, ‘I won’t use that crosswalk because it scares the crap out of me.’”

A satellite photo shows three marked crosswalks on El Camino Real, all nearly identical to the one at Ludeman Lane, within one-third of a mile

Indeed, that rate was more than 20 times higher than what had been deemed an unacceptable rate in the Federal Highway Administration’s study.  Furthermore, Schoenberger and Saeltzer determined there had been similar pedestrian injury rates at two similar crosswalks on El Camino Real that are within one-third of a mile.

The attorneys also pointed out other problems with the crosswalk at Ludeman Lane.  For southbound vehicles, such as the one that hit Liou, the intersection sits at the crest of a hill that makes it not only difficult for drivers to see the intersection but also impossible to see the crosswalk markings.  Drivers actually see the traffic light at the next intersection long before they notice the Ludeman Lane intersection, especially at night, when Liou was hit.

After hearing the evidence presented by both sides, the jury awarded $12.2 million in damages, most of which will cover the costs of Liou’s medical care and her lost future income.  But the amount Liou will receive will be reduced by 20 percent, the degree to which the jury found her at fault for the accident because she was wearing dark clothing and did not see the vehicle in time to avoid impact.

The driver of the car was determined to be 30 percent at fault even though she was sober at the time of the crash, was driving well below the speed limit and had a clean driving history.  After all, California’s vehicle code requires drivers to yield to pedestrians in a marked crosswalk.

But the jury found Caltrans to be 50 percent at fault for the crash, for allowing the dangerous crosswalk to remain in place and not even attempting to study the risk there.  “Caltrans had blamed our client and blamed the driver, “Schoenberger said.  “They systematically avoided any responsibility for their own crosswalk.  The jury didn’t agree.”

This is one of the first times Caltrans has been hit with such a verdict for a pedestrian crash, and Schoenberger believes that will lead to changes.  “This will cause them to rethink how they evaluate pedestrian safety,” he said.  “They don’t need to remove all marked crosswalks, but they need to study them.  If it turns out an intersection isn’t a problem, then it’s okay to let the crosswalk remain.  But they’ve got to think about it.”

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Sniffing, Charles Campbell figured, was part of the job. He’d take a whiff of the flavor mix to make sure that his batches of cinnamon candy didn’t come out tasting like butterscotch, that the peppermints didn’t smack of wintergreen.

As he poured liquid flavoring into mixing machines at the former Brach’s Confections in Chicago, Campbell never imagined that his 30-year career with one of America’s favorite sweet makers could take a toll on his lungs. Nor that his pride in making candies for kids could foreshadow a health nightmare that would weaken him so much that he couldn’t even visit his own kids and grandchildren.

Charles Campbell with his great-granddaughter Leloni Chang.

Campbell, who never smoked, eventually found himself tethered to portable oxygen, suffering a rare, irreversible and life-threatening lung obstruction called bronchiolitis obliterans. Physicians in 2000 began finding high rates among workers in microwave popcorn plants –- leading to the moniker “popcorn lung” –- and then among people who make butter flavoring for popcorn companies and snack food makers, like Brach’s.

Scientists fingered a compound called diacetyl, which occurs naturally in dairy products but also is part of a chemical cocktail used to make butter flavoring. The problem was not consumption of food containing the flavoring, but inhalation of its vapors by workers. Small airways in their lungs became constricted and scarred. With the threat identified, government regulators issued voluntary guidelines encouraging respirator usage as well as ventilation and enclosure systems to protect workers.

But after years of research and hundreds of worker lawsuits against makers and suppliers of butter flavoring, the government still hasn’t figured out what level of exposure is safe and how much makes people sick. Further, nobody has nailed down how widespread the hazard might be. And perhaps most disturbingly, after popcorn makers and other food producers changed their recipes for safety, government officials now are flagging the toxicity of substitute substances that essentially mimic diacetyl’s properties. In other words, the problem doesn’t stop with diacetyl.

* * * * *

“That story is still evolving because unfortunately sometimes people will use the substitutes without going through the toxicological background that is necessary,” said Lauralynn McKernan, senior environmental health officer at the National Institute for Occupational Safety and Health (NIOSH). The agency, a branch of the Centers for Disease Control, will include the emerging science on substitutes in a broad review of diacetyl that is due out later this year and is expected to recommend a diacetyl exposure limit.

Both California officials and the federal NIOSH are working on regulations specific to diacetyl, and now are grappling with the question of substitute chemicals. NIOSH investigators in November reported that reformulated buttermilk flavoring supplied to a General Mills bakery mix plant in Los Angeles contained ingredients potentially as toxic as the diacetyl they replaced. The toxins were not listed on the safety sheets they came with, NIOSH found. The company used protective ventilation and respirators, but workers had higher than expected rates of asthma and shortness of breath.

“The difficulty in trying to regulate diacetyl is it forces flavor manufacturers to use these similar molecules with one more carbon, two more carbons, when the toxicity is probably the same,” said Kathleen Kreiss, head of NIOSH field studies on respiratory disease. A further complication in evaluating health effects is that workers may not show symptoms until after months or years of cumulative exposure. Employers often don’t know what their workers are exposed to, so doctors have trouble linking illness to the compounds.

Additional unknowns involve diacetyl’s interaction with other potentially harmful flavoring substances. A NIOSH study in 2008 found that the metabolism of diacetyl changes in the presence of butyric acid, a common chemical in butter flavorings, and becomes more harmful.

* * * * *

Popcorn lung faded from the front pages after popcorn giants including Orville Redenbacher, ACT II and Pop Weaver announced “no added diacetyl” in their microwave products two years ago. California regulators drove down usage with a voluntary program involving flavoring companies, and federal officials issued non-binding worker protection guidelines. The Flavor and Extract Manufacturers Association urged its members to reduce use of diacetyl. Food makers say their protective systems have improved.

Nonetheless, politicians and government officials say an enforceable limit on diacetyl use is needed, a regulatory fix that also is supported by food industry representatives. One-time critics who now hold key positions in the U.S. Department of Labor yanked the go-slow Bush administration approach last year and announced the Obama administration would set a first-ever enforceable standard for diacetyl.

Labor Secretary Hilda Solis, who as a member of Congress had pushed for speedy government action when two flavoring workers contracted lung obstruction in her California district, noted three deaths had been linked to the flavoring compound. So far:

• •   OSHA cited diacetyl regulation as a top priority last fall. A leading critic of Bush’s policy, David Michaels, now heads the agency, but he acknowledged time-consuming regulatory hoops. “OSHA is committed to protecting workers from the serious hazards associated with exposure to diacetyl,” Michaels said in a statement issued through his press office. “However, numerous steps in the regulatory process mean OSHA cannot issue a rule as quickly as it would like.” The agency anticipates October peer review of a health risk analysis that will underpin the regulation. It is considering whether to include diacetyl substitutes. In the meantime it has a special program to inspect 83 facilities that make diacetyl-containing flavorings. A similar program issued citations at 18 of 35 popcorn plants inspected in 2008.
• •  Some in Congress want quicker steps. “I am concerned that OSHA has not acted fast enough to compel employers to reduce workplace exposure to this deadly additive,” Sen. Sherrod Brown (D-Ohio) wrote to Solis in November. “Workers and their families should not remain unprotected any longer.”
• •  California is closer to issuing protective rules that would affect companies using flavoring with more than one percent diacetyl. They would have to employ respirators and workplace controls and provide medical surveillance of employees. The state estimates 30 flavoring companies and potentially more than 4,000 food manufacturers would be affected, although many may have stopped using diacetyl. Some but not all have implemented recommended worker protections. The regulation, expected by summer, likely will include substitutes, said Len Welsh, head of California’s Division of Occupational Safety and Health. “We want to make it as difficult as possible to switch to an unknown and hope for the best,” Welsh said. Although new cases of bronchiolitis obliterans have dwindled in California, Welsh is tracking 45 workers with other lung illness that could be linked to diacetyl exposure.
• •  NIOSH is trying to learn about diacetyl exposure at food factories beyond popcorn and flavor companies, such as baking and snack firms. Many companies have refused to let the researchers in.
• •  The Food and Drug Administration is reviewing a petition that challenged its “generally recognized as safe” designation for diacetyl in food. The request was submitted in 2006 by OSHA’s Michaels when he was head of George Washington University’s Project on Scientific Knowledge and Public Policy. “While it is extremely unusual for FDA to contemplate food ingredient regulation on the basis of inhalation concerns, we have not ruled out any regulatory option,” said FDA spokesman Michael Herndon said.

* * * * *

Aside from worker illness, lung obstruction cases have emerged among four or five voracious popcorn eaters who blame their disease on vapors from the microwave product.

Popcorn was a staple for Debbie Daughetee. She popped at least two bags a day during long, intense hours as a Los Angeles writer and TV producer. Too tired to make dinner, she’d turn to popcorn at home. “It was quick, easy, filling and it didn’t have a lot of calories,” she said.

Over time, Daughetee became weak and short of breath, and lost her writing focus. Eventually doctors diagnosed bronchiolitis obliterans. Three years working in movie theaters again exposed her to butter flavoring, further endangering her health, she claims in lawsuits against several flavoring and popcorn companies. The suits are filed in Iowa federal court and Los Angeles County Superior Court.

At 53, Daughetee’s days of dancing, hiking and scuba diving are a memory, along with her dreams of being an executive producer. Taking a shower tires her. “It makes me incredibly angry,” she said.

Litigation by sick workers continues across the country. In a bankruptcy case involving chemical maker Chemtura, a major producer of diacetyl, 375 people have submitted claims asserting health effects due to diacetyl exposure.

Still it’s likely that many people don’t know they were exposed or that their physicians don’t know to ask them about the exposure and link it to their illnesses, said B. James Pantone, an attorney representing an Orange County flavoring worker who lost 70 percent of his lung capacity. “People who work around food don’t think of it as a dangerous substance. They think of it as food,” Pantone said. “Are there more cases? I think they’re going to be popping up for years.” But, he added, many will never be identified.

At least five of Charles Campbell’s co-workers at Brach’s developed severe lung injury, said Ken McClain, whose Independence, Mo., law firm specializes in popcorn lung cases. He said the firm represents 500 people in 300 diacetyl cases nationwide, and has settled many others including Campbell’s. It won trial awards totaling $60 million for another handful of clients.

“The extent thus far has been far more than anyone guessed and the number of potential people who are exposed numbers in the thousands,” McClain said. “What impact it’s having on a variety of occupations and uses is yet to be determined.”

Industry representatives say general food manufacturers have not seen workers’ compensation claims or illness patterns to indicate a widespread problem. “The presumption that latent cases of fixed obstructive lung disease would be discovered throughout food manufacturing has not been borne out in spite of several years of experience,” the Grocery Manufacturers Association told California regulators in complaining the state’s proposed rule was unnecessarily broad.

The association, which supports the idea of a diacetyl limit, said its members generally use flavorings with far less than one percent diacetyl. Food production workers are not continuously exposed to butter flavoring because bakers and food companies mix a variety of products and not all contain butter flavoring.

Some health experts counter that without active screening of employees, severe lung obstruction is frequently misdiagnosed or overlooked. “No one really knows,” said David Egilman, an occupational and internal medicine specialist who has diagnosed many brochiolitis obliterans cases and has testified as an expert witness. “Some people have gotten better after the exposure stopped and some people have gotten worse. You can’t say that there’s a particular pattern. There’s not enough data.”

He and California’s Welsh also portrayed the diacetyl problem in a larger context. Said Welsh, “I don’t think it’s the last that we’ve heard of this issue. There may well be other flavorings that turn out to be problematic. This one is an attention grabber because the illness you get is so dramatic and so life threatening. There’s an array of other flavorings that I believe are going to have pulmonary impact because of occupational exposures.”

* * * * *

Charles Campbell’s illness robbed him of retirement plans to travel and see family. “I look at other people enjoying life. I can’t do nothing,” he said, his weak voice punctuated by coughing. “My body is deteriorating.”

Uncomfortable in bed, he sometimes sat all night in his chair. But he didn’t complain about his pain, sitting day after day in his home outside Chicago, watching his beloved Chicago teams on TV. Last Thanksgiving, his five children, with kids and grandchildren, came to visit from around the country. “I just thank God I’m still here,” he said later.

In early April, Campbell mustered his strength to drive a short distance for replacement oxygen. He pushed his slight frame out to his new Hummer. Then, he turned and handed his son the keys.

“I knew then that it was bad,” said his wife, Natoma.

At the hospital the next day, he struggled to breathe. Two days later, on April 4, Charles Campbell died at 68. He was not, his wife said, ready to go.

Rita Beamish is a journalist who has covered national investigative and environmental stories for many years.

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It was the perfect day that turned into a nightmare. Bulent and Anne Ezal were on a trip to Big Sur, traveling one of the most ruggedly beautiful stretches of the California coastline. As lunchtime drew near, Bulent eased the couple’s Toyota Camry into a parking space near a coastal restaurant hugging the steep and rocky bluff overlooking the waves.

Without warning, the vehicle suddenly shot ahead and careened over the cliff. The couple held on as the Toyota plummeted 75 feet, smashing onto the surf-washed rocks below.

Miraculously, Bulent suffered few permanent physical injuries. But his beloved wife Anne died a horrifying death.

This Toyota Camry went off a cliff and plunged 75 feet, killing a passenger, and her husband at the wheel could do nothing to stop it

The tragedy of that day has been replicated in accidents all over America, creating a tidal wave of trouble for an auto manufacturer that once commanded the pinnacle of consumer trust. Toyota has been called to task by congressional investigators, attorneys and the general public over a phenomenon that has afflicted thousands of vehicles, maimed and killed motorists, and earned its own moniker: sudden unintended acceleration.

Toyota of late has embraced explanations that challenged credulity, suggesting that unintended accelerations can be caused by “sticky gas pedals” or “all-weather floor mats” that can jam the pedal. In the Ezals’ case, as in many other reported runaway accelerations, their Toyota did not have all-weather floor mats or the specific gas pedals identified in Toyota’s press releases. So what happened?

The most likely explanations can be discerned with a look at the past, present and future – a look back in history, an examination of pivotal issues being publicly disregarded by Toyota, and the consideration of new techniques for discovering the root cause of this deadly defect.

A brief history of uncontrolled accelerations

The syndrome now afflicting Toyotas may be news to many, but unintended accelerations are nothing new in the auto industry.

In 1978, Volkswagen began selling the first Audi 5000s in the United States. Sales were strong, with sales of the Audi flagship doubling in its first seven years in the U.S. market. But these popular vehicles had a recurring problem: uncontrolled acceleration.

From 1978 to 1987, consumers reported more than 1,500 crashes involving sudden acceleration of Audi 5000s, with 400 reported injuries and seven fatalities. Many of the crashes were similar: the car was idling with the automatic transmission in “park,” the driver shifted into “drive” or “reverse,” and the car would, suddenly and without warning, wildly accelerate. Often the Audis could not be stopped before hitting other cars, trees, walls, or even people.

One of those killed was six-year-old Joshua Bradosky. He died when an Audi 5000, driven by his mother, surged forward, crashing him through a garage and pinning him to the garage wall.

Audi’s response was, essentially: the car is not defective, the drivers are. Audi’s public relations staff accused the drivers, emphasizing that “maybe people are putting their foot on the wrong pedal.”

The response by the National Highway Traffic Safety Administration (NHTSA):  The car is not defective; the drivers are. In 1989, NHTSA completed its investigation into “sudden acceleration incidents” (“SAI”), concluding, “most SAI probably involve the driver unintentionally pressing the accelerator when braking was intended.” In short, despite the increased frequency of sudden accelerations in certain model vehicles, and the driver (in virtually every incident) reporting “foot on the brake” rather than the accelerator, NHTSA concluded it was all merely the result of the driver pressing the wrong pedal.

Despite this ultimate “finding” by NHTSA, as a result of prior work by trial attorneys, journalists, safety advocates, and consumers, the Audi 5000 had been recalled several times to correct problems that NHTSA itself acknowledged could cause sudden acceleration.

In 1982, in a move shockingly similar to today’s Toyota headlines, NHTSA forced the recall of the Audi 5000 because the driver’s floor mats could cause sudden acceleration. Later, the placement of the brake pedal was blamed for some sudden accelerations, and the Audi 5000 was recalled again for repairs.

In 1987, NHTSA identified defects that could cause “engine surge” and demanded the recall of some Audi 5000s yet again. Finally, that same year, the Audi 5000 was recalled to retrofit an automatic shift lock to prevent “unexpected, sudden acceleration, without prior warning.” Audi touted this final recall as the solution to most of the sudden accelerations incidents.

With NHTSA’s investigation into “sudden acceleration incidents” closed, and most unintended accelerations attributed to driver error, NHTSA made no further recalls of the Audi 5000.  Long after the recalls, however, consumers continued to report runaway accelerations with the Audi 5000, even on vehicles that received all recall repairs.

The 1990s and Ford Motor Company

In the 1990s, consumers began to report that automobiles with popular cruise control systems had runaway accelerations. Ford Motor Company absorbed much of the criticism, with numerous lawsuits filed against it as well as multiple NHTSA recalls related to sudden acceleration.

Unlike Audi’s problem with the Audi 5000, Ford’s runaway acceleration problems crossed into many models and various brands: Aerostars, Contours, Escapes, Explorers, F-Series Trucks, Focus Hatchbacks, Tauruses, Mercury Mystiques and Mercury Sables.

Most of these Ford recalls involved the cruise control system. There was particular focus on a design that allowed contaminants into the speed control cable conduit or caused damage to the cable itself, resulting in either a wide-open throttle or surging throttle.

However, the recalls ignored key consumer concerns regarding runaway accelerations. Prominent among them was whether transient electromagnetic interference (EMI) could cause these unwanted accelerations. Some experts believed that transient EMI could cause the electronic cruise control to signal the throttle to open, despite the absence of accelerator input.

In addition, Ford was privy to information indicating that EMI could cause vehicles to suddenly accelerate out-of-control. Indeed, in internal investigations on sudden acceleration, Ford concluded that sudden unintended acceleration incidents increased with the introduction of broadly applied electronics in 1984. Ford also documented in internal memoranda that various electromagnetic failures, including EMI, could cause sudden unintended acceleration.

Ford apparently learned that “the vehicle speed maintenance control system or ‘cruise control system’ . . . is capable in the event of ‘failure or malfunction’ of opening the throttle a substantial amount without driver input.” Indeed, former Ford employees have admitted that unwanted electrical impulses could open the throttle, causing sudden unintended acceleration.

Ford generally denied virtually all defect claims related to runaway accelerations, often citing the 1989 NHTSA report of “drive pedal” error as evidence. However, Ford employees apparently experienced incidents of sudden unintended acceleration, with no reproducible evidence of the event.

In one reported incident, a Ford engineer, investigating a Ford Expedition for cruise control problems, found that after pressing the “resume” button, “the vehicle kept accelerating beyond the set speed and wouldn’t respond to brakes or the off switch.” Upon examining the truck, however, Ford could not find anything out of the ordinary.

In another reported incident, during a test drive of a Mercury Grand Marquis, a Ford employee shifted into “drive” and the engine raced with the wheels spinning, as if the accelerator were floored.  The employee stopped the car by braking as hard as he could. The car later checked out normal.

In yet another reported incident, a Ford employee crashed an experimental Aerostar prototype. After shifting into gear, the vehicle accelerated to full throttle, tires squealing. The employee removed his foot from all pedals, thinking he had accidentally floored the accelerator, but the van continued to accelerate. He shifted into “park” but could not avoid crashing into a wall.

Despite the above, Ford and virtually the entire industry continued to rebuff opinions that EMI could cause runaway accelerations, especially during related litigations.

The 2000s bring trouble for Toyota/Lexus

On August 28, 2009, with a California Highway Patrol Officer at the wheel, a passenger in a new Lexus ES 350 made a frantic call to 911. Their vehicle was out-of-control, weaving through traffic at 120 miles per hour.  The passenger’s final frantic words were “we’re in trouble . . . there’s no brakes.” The driver, his wife, teenage daughter, and brother-in-law, the 911 caller, were all killed as the vehicle slammed into another car and careened down an embankment.

Since 2001, consumers have lodged more than a thousand reports of sudden unintended acceleration in Lexus and Toyota vehicles. NHTSA officials told a Congressional committee in early March that the agency had received 52 complaints of fatalities involving sudden unintended acceleration in Toyota vehicles since 2000. A Los Angeles Times review of public records and interviews with authorities found at least 56 deaths blamed on sudden acceleration in Toyota and Lexus vehicles. In contrast, sudden unintended acceleration in all other vehicles made by other manufacturers resulted in only 11 deaths.

Toyota first blamed these unintended accelerations on the drivers, then admitted that its all-weather floor mats could jam the accelerator pedal on certain models. Hoping to rectify the floor-mat problem, in September 2009 Toyota recalled millions of vehicles, including Camrys, Priuses, Avalons, Tacomas, Tundras, and Lexus models.

The remains of the Toyota Camry in which Anne Ezal died

The floor mat recall, however, did not end the inquiry.  NHTSA, in an unprecedented rebuke, responded to Toyota’s claim that no defects existed in their vehicles with compatible and properly secured floor mats. NHTSA publicly stated that it recognized an “underlying defect” in the design of the Toyota and Lexus accelerator pedals and the drivers’ foot wells.

In January 2010, Toyota announced yet another related recall.  This one recalled millions of more vehicles to correct “sticking accelerator pedals.”  Toyota’s press release stated that its continuing investigation found that certain accelerator pedals could mechanically stick in a partially depressed position, or return slowing to the idle position.  Later in January, Toyota announced an unprecedented decision to halt sales and production of eight models until it could determine how to stop the gas pedals from sticking and causing unintended accelerations.

However, we believe that Toyota’s runaway acceleration problems will not end at “jamming floor mats” or “sticky gas pedals.”  A telling point is that complaints of unintended acceleration in Toyota and Lexus vehicles increased dramatically after employment of electronic throttles in the last decade. In some models, sudden acceleration complaints increased five-fold after introduction of electronic throttles.

The ignored issue and solutions

Like the proverbial “elephant in the room”, the EMI issue must be directly addressed by Toyota and the rest of the auto industry.  EMI is real.  The aerospace industry has been dealing with the ramifications of EMI/EMC (electromagnetic interference/electromagnetic compatibility) since the 1960s.  Said simply: The more sophisticated electronics one stuffs into a small area, the more lethal the EMI/EMC issue.

We now rely on an unprecedented number of electronic gizmos in every new car–some more than others.  Toyota, as the largest automobile manufacturer and an undisputed leader in electronic advances for automobiles, is at the forefront.  As such, and with its current runaway acceleration woes, Toyota will have to face the issue first.

EMI/EMC

The electronic throttle system that Toyota introduced at the turn of the 21^st Century replaced the mechanical link (usually a steel cable) between the driver’s foot and the engine’s acceleration with a series of sensors, microprocessors, electric motors and wiring.  These devices were located among a growing number of additional sensors, processors, and wiring for a myriad of other electronic subsystems in a relatively small space in the vehicle’s engine area.  This, in and of itself, is a classic recipe for EMI/EMC problems.

As the aerospace industry learned decades ago, manufacturers cannot simply continue to jam electronic devices into small areas without testing for and designing away EMI dangers.  If they do, spurious signals that inadvertently and randomly excite near-by electronics are inevitable.  If those near-by electronics include the engine control unit (or electronic throttle system), runaway accelerations are to be anticipated.

EMI/EMC dangers can include stray voltage, algorithm defects in the related software of the microprocessor components, and random signals that excite other subsystems (such as opening throttle control units).

Toyota, understandably, wants a “quick fix” to its runaway acceleration problems.  Sales, reputation and peoples’ lives depend on it.  But limiting its investigations to mechanical things such as “jamming floor mats” and “sticky gas pedals” is a tragic mistake.  Toyota (and the industry as a whole) can no longer afford to disregard “the elephant in the room”: EMI/EMC.

The solution is not a “quick fix.”  Eliminating EMI/EMC dangers is a system design and test issue that affects every electronic component and computer-driven subsystem in the vehicle. And the more electronic components and microprocessors in a vehicle, the deeper and darker the problem.

Besides testing for EMI/EMC dangers at each step of the design process, safety analyses must be done.  In particular, Failure Modes and Effects Analyses (FMEA) must be conducted to show that the system-design is free of EMI dangers.  Through careful design, testing and on-going FMEA, electronic devices can be safely integrated, insulated and, if need be, isolated, and all associated algorithms can be verified and validated to virtually eliminate the risk of EMI.  In more than 25 years of product liability litigation, however, we have yet to see an FMEA from any auto manufacturer that comes remotely close to accomplishing and documenting the above.

Now is the time.  Toyota, as industry leader and saddled with its current “runaway acceleration” problems, should lead the way.  Future designs must thoroughly address EMI/EMC from the ground up.  Lives depend on it.

But what about the Toyota vehicles already on the road?  Retrofit and perhaps redesign is necessary.  If Toyota has not already done so internally, it should immediately amass what the aerospace industry calls a “tiger team” of knowledgeable engineers across multiple disciplines (including auto design, electronics, software and safety engineers) to beat back its deadly problems.  Suspect components and software should be modified.  Susceptible electronic devices, including wiring and sensitive components, should be shielded, insulated and if necessary isolated or retrofitted to eliminate EMI dangers.

The role of product liability litigation

For well over 30 years, product liability litigation has been at the forefront of auto safety. Think Pinto “exploding gas tanks,” interior padding, airbag safety, roll-over propensity, etc.  Litigation is especially effective where industry progress is thwarted by profit concerns and federal regulation is dwarfed by politics.

Even with today’s government and media interest in sudden unintended acceleration, troubles loom and questions remain unanswered. Toyota’s inconsistent mechanical “explanations,” the fact that the issue isn’t isolated to just one manufacturer, the reality of EMI/EMC dangers and the essential disregard of those threats by manufacturers and government watchdogs leave the public at risk.  As with so many previous automotive defects, that safety void will exist until manufacturers are spurred to find the real solution.  And, as in the past, that void will be filled by product liability litigation, and the type of knowledge and techniques that effective lawyers can use for the good of consumers across the nation.

Cory G. Lee is an attorney with Raymond Paul Johnson, A Law Corporation.  He is a member of Consumer Attorneys of California and the Consumer Attorneys Association of Los Angeles, and practices in the areas of products liability, hazardous roads, business law and other civil litigation matters.  He and Raymond Paul Johnson are representing the Ezals against Toyota.

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There can’t possibly be many students who faced Yimeng Dou’s to-do list:

• •  Apply to the new UC Irvine School of Law while publishing 28 patents as biotech scientist in the private sector.
• •  Defend legal immigration when unforeseen administrative errors risk deportation back to China.
• •  Accomplish all that while suffering morning sickness and swollen everything. Then give birth – two weeks before classes start – to a 6-pound, 12-ounce baby.
• •  Thank the deans for that private room to pump breast milk between Civil Procedure and Contracts.

So it goes during Year One at the spanking new UC Irvine School of Law, the upstart legal institution in Orange County that opened in August with lots of press, lots of promise – and an extensive and tangled back story. To recap:

UC Irvine School of Law Dean Erwin Chemerinsky

Internationally-recognized constitutional lawyer Erwin Chemerinsky, his legal gravitas pulling heavyweight faculty from the cream of American law, founds California’s first public law school in 40 years. He is hired. He is un-hired after qualms arise over how his liberal leaning will play in a right-tilting county.

The ensuing national storm over academic independence momentarily threatens the law school’s future. But the fleeting drama leads to cool-headed review and he is rehired. The smoke quickly clears as billionaire Irvine developer Donald Bren and other essential funders in Orange County’s establishment, plaintiffs’ attorneys Mark P. Robinson, Jr., Joe Dunn and Anne Andrews among them, underwrite the vaunted faculty – and every student’s tuition is paid the first year.

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In November, Dean Chemerinsky offered a progress report on the school’s website. It concluded:  “We could not possibly have a more impressive or nicer group of faculty, staff and students to create what I believe will be a very special law school.”

UC Irvine Law students Chris Dalby (left) and Ari Yampolsky

We asked more than a dozen of the 60 students in the inaugural Class of 2012 to share their experiences. Many of the students brought with them not only Ivy League pedigrees and high grade point averages, but also significant life experiences. Lori Speak had most recently been an assistant pastor at a Baptist church in Fullerton. Chris Dalbey was an architect. Emma Soichet was a speechwriter for Los Angeles mayor Antonio Villaraigosa.

Ari Yampolsky, 31, is the son of Russian immigrants who arrived in the 1970s. His father is a cabbie. His mom is a cosmetologist. He graduated from Wesleyan University in Connecticut and went straight to work in organized labor, spending several years at the Washington, D.C. headquarters of the Service Employees International Union. He worked in research and organizing for what is the country’s largest union, and entered law school a relative late-bloomer.

“I’ve had a lot of responsibility and pressure in my work,” observed Yampolsky, who had been a researcher and organizer for SEIU, which counts health care workers, security guards and janitors among the more than 700,000 workers it represents in California.

“This,” he said of law school, “is much more pressure.”

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Still in its infancy, UCI Law is compactly housed in two side-by-side modern buildings that share a courtyard and pedestrian bridge. Graduate student housing is in walking distance. The library is a marvel, lined with early California landscape paintings on loan from the Irvine Museum.

Irvine itself is an Orange County city famous as a planned community – a place with good schools, many greenbelts and few landmarks other than UC Irvine. Just a few blocks off the San Diego Freeway, it is suburban with chain restaurants yet rich with open space. The law school anchors the corner of Campus Drive and East Peltason, near a building housing the university’s Department of Education. It’s a five-mile drive down to the Pacific Ocean, though students laugh at the notion they’d be playing beach volleyball between classes.

“Most of us,” said the architect-turned-student Dalbey, 33, “are spending most of our waking time indoors.” (Although the students did beat the faculty at a basketball tournament chronicled in photos on the students’ Facebook page).

Any of that cut-throat stuff you hear about from the old schools?

Yampolsky, sitting in a study room down the hall from classmates eating chips over a card game, shook his head.

“Anything even approximating that and, from this group, you’d be shunned. It’s a very collaborative atmosphere and that sensibility starts from the top down, with Dean Chemerinsky and [Assistant] Dean [Victoria] Ortiz.”

UC Irvine Law student Yimeng Dou

Yimeng (pronounced Ee-mun) Dou arrived at UCI from China as a Ph.D student, then worked at a biotech firm before finally turning her attention to the law.

“I think the hardest part was not my baby daughter, the pumping every three hours, and not the classes,” she said. “I think it was the immigration threat hanging over me this fall. It is very hard to immigrate legally, and I think I want to help people to avoid going through…what I have gone through. I went into law school to more personally help people and helping immigrants might be my way.”

Among her 60 classmates is a repeatedly expressed wish to use the law as a tool to help people or effect change.

On the eve of their final exams, the students seemed tired but satisfied. Sixty-one started in the fall, with one dropping out for personal reasons. As happy as most of them were, they said they understand their choice of a fledgling law school holds risks. It has no established record, thus no ranking, viewed as important in landing clerkships and jobs. There are no alumni from which to mine opportunities, which Yampolsky said is more critical in law than almost any other profession.

“The risk is this,” said Yampolsky. “It’s a very dog-eat-dog world, the world of law schools. They are looking at LSATs and GPAs and you are graded on a curve. You hear of law students stealing someone’s laptop to sabotage them. Yale Law has a 150-year history, UCLA 40 years. That is a lot of alumni to have help from. Compare that with no alumni.”

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UCI students are well aware of the legal bloggerati sniping away.

“That’s what we’d read on the blogs: ‘we’ll see whether they all graduate and get jobs or not,’” Yampolsky said of websites such as abovethelaw.com, one of the most popular legal blogs in the country. After the blog posted a link to student profiles on UCI Law’s website, it brought a million hits in two days, said Rex Bossert, assistant dean for communications and public affairs.

UCI School of Law Assistant Dean Rex Bossert

Bossert, formerly editor-in-chief of the National Law Journal, is savvy to the skepticism expressed in the blogsphere about the inaugural class, noting that “there was a lot of talk about whether they were going to be up to snuff.”

He shrugs, as in, we’ll see.

For starters, only 4% of applicants were accepted, the lowest rate of any American law school. Already, UCI has been ranked 15th in the U.S. for intellectual properties law based on the strength of the faculty. Time magazine, noting that UC Irvine “was instantly more selective than Harvard or Yale,” called the new school one of 20 reasons demonstrating “why California is still America’s future.”

Six months before class began, the ABA Journal announced that UC Irvine School of Law tied with the University of Pennsylvania for the final spot in the Top 10 list of American law schools “based on the faculty’s scholarly impact.” Brian Leiter, a University of Chicago law professor and author of an influential blog on legal education, said that the quality of UCI Law’s faculty and the entrance exam scores of its first class give it a spot in the pecking order that typically takes a new school decades to achieve.

Not too shabby.

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Students say the school’s esteemed collection of professors, combined with a 3-to-1 ratio of students to faculty (the lowest in the nation), more than offsets the risk of being the first class in a brand new school.

“I figured that the faculty has a strong personal interest in our success, as students, and they would not let us fail,” said Yampolsky, the labor organizer.

UCI Law student Xenia Tashlitsky

Xenia Tashlitsky, 23, said she did not want to speculate on how she fared in her December finals for fear of being embarrassed if her prediction was wrong. And yes, her name is pronounced like the campy TV show warrior princess, but the name in Greek means “hospitality.”

An immigrant whose family moved to San Diego from the Ukraine when she was 5, Tashlitsky earned her undergraduate degree at UC Irvine in political science. She went on to work at wildly different jobs, first as a webmaster for a jewelry company, then as a graphic artist for a bedding design company.

But she knew she’d found work that grabbed her when she answered a Craigslist ad for a paralegal job with a San Diego real estate lawyer representing plaintiffs in consumer cases.

One of many things she loves about UC Irvine’s program is the clinical practice it affords, Tashlitsky said. “Many schools offer that opportunity, but [UCI] requires it.”

The school’s generous scholarships cannot be underestimated as a draw to numerous students. They get a full ride for three years on tuition, and guaranteed discounts on housing. Half of the funding needed to cover all three years for the Class of 2013 had been raised by Dec. 31.

Such financial largess helped draw the school’s richly diverse student body. Several students agreed the unexpected pleasure of this inaugural class is how extremely different the students are from each other.

“My classmates have had these amazing experiences,” said Tashlitsky. “One worked for a politician and does large scale art installations. There is a French person who was a reporter for a Vietnamese newspaper.” Two classmates are from Alaska, which she concedes with a laugh is “an amazingly high percentage of people from Alaska for a class of 60!”

The plaza overlooking East Peltason Drive on the UC Irvine School of Law campus

Students say the school’s lack of institutional history and absence of well-placed alumni has been more than offset by UCI Law’s respected faculty – and better opportunities to get to know them.

UCI Law Professor Catherine Fisk

Several students cited professor Christopher Leslie’s humor and what Dou called his “Socratic” questioning style. “I never thought I’d like Contracts,” mused Yampolsky. Others praised media law professor Henry Weinstein’s numerous guest speakers, such as Bruce Lisker, who spent 26 years in prison before a judge vacated his murder conviction.

An especially empathetic faculty member mentioned by students is professor Catherine Fisk. During her Legal Profession class right before finals, students looked visibly relieved when Fisk urged them to not overstress final exam grades, saying she had performed terribly in her first semester of law school and still managed to get a fancy clerkship. She also had them laughing when she suggested it was time to hear comments back before she put them “in a coma.”

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A UC education, free tuition, discounted housing, graduating debt-free. What’s not to like?

“We’re going to be the babies of the entire UCI system,” said Jeffrey Wachs, a screenwriter and former staffer at the William Morris Agency who has married and had a daughter since applying to Irvine. He has been active in a committee starting the school’s founding law review, one of many appeals to being part of the first class.

“There is a logic to being here,” Wachs added.  “The UC system is finally opening a new law school after years of organization. It didn’t seem like they’d let their first class fall on their faces. Unlike other law schools, you are not on your own here.”

Nancy Wride is a freelance journalist based in Southern California.

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For years, the Food and Drug Administration has been the agency in Washington that consumer advocates love to hate, attacked and reviled for failing to protect the public against dangerous drugs and medical devices, and threats against the food supply.

But now, at least in the case of one of its most hotly debated responsibilities, the FDA may be in the early stages of shedding its paper tiger image.  The cautious optimism among public health and consumer law experts, stems from a recall that the FDA triggered in May 2009 against the makers of a popular line of weight-loss products sold under the Hydroxycut brand.

The case was built in part on examples of side-effects and other health issues that the manufacturer, Iovate Health Sciences, had disclosed to the agency under a new federal reporting law, including the case of a 20-year-old man who died after taking the company’s pills.  Iovate disclosed the death case to the agency earlier this year before the recall was official.

Relying on another section of the new law, the FDA was also able to conduct an inspection of company records that led to the discovery of hundreds of other cases of health problems associated with Hydroxycut that Iovate had not previously reported to the agency.

FDA officials declined to say how those findings influenced their decision to press for the recall.  Iovate officials told the FDA that they did not believe those unreported cases — totaling more than 2,100 between December 2007 and March 2009 — were “serious.”

An Iovate spokesperson declined to comment.  The company has previously said that it believed the concerns over its products were overblown, and that it agreed to the recall “out of an abundance of caution and because consumer safety is our top priority.”

The case is the most high-profile against a supplement maker since a nationwide flap over the stimulant ephedra, and appears to signal a new aggressiveness on the part of the FDA.

Some legal and public health experts said the early action by the agency in the Hydroxycut case may have headed off the possibility of widespread public harm, unlike the case with ephedra, which took years to pull off the market even while it was contributing to more than 100 deaths, including the 2003 death of a top Baltimore Orioles pitching prospect.

Since January 2009, the agency has identified more than 70 supplement brands that have been illegally spiked with prescription drugs, including seizure medications and anti-depressants.  In a related case, several officials with a Georgia-based supplement maker were sentenced to federal prison in January, for importing into the U.S. illegal knockoffs of several popular prescription drugs, from a warehouse in Belize.

“It seems to me they are making up for lost time,” says Paul D. Rheingold, a New York plaintiffs’ attorney who specializes in drug and medical device litigation.

Anne Andrews, an attorney in Irvine, who has litigated against supplement manufacturers for years, senses a political shift under the Obama Administration.

Anne Andrews

“They have acted very quickly on early data,” Andrews said. “My sense is that the FDA has looked at these products and just been agog.”

Obama is not new to the issue.  As an Illinois state senator in 2003, he authored legislation banning ephedra.  That effort came in the wake of the deaths of Northwestern University football player Rashidi Wheeler and a 16-year-old high school football player in Illinois.

The president has promised an increase in the FDA budget to address chronic staff shortages and other problems.  While not addressing supplements directly, the agency’s new commissioner, Margaret Hamburg, has spoken of the need to make food safety generally a priority.

Susan Cruzan, an FDA spokesperson, said the agency was not singling out supplement makers but rather responding to public health threats as they arise.  At the same time, some agency officials have acknowledged that they have benefited from new powers from Congress.

“I think given our new authority we’re able to collect information much more quickly and to act more quickly,” Vasilios Frankos, the director of the FDA division of dietary supplements, said at the time of the Hydroxycut recall.

Dietary supplements have long been a sore point for critics of the agency because, unlike prescription drugs, they can be marketed to the public without any showing of safety or efficacy.  Boosters say the approach, embodied in the Dietary Supplement Health & Education Act of 1994, enhances consumer choice.

Critics say the approach has threatened public health by putting untested, and in some cases dangerous, products readily on the market.  Making matters worse has been the fact that manufacturers of the supplements have had no duty to advise the FDA of cases in which their products have hurt people.

With millions of Americans taking weight-loss products, and polls showing most believing, incorrectly, that the government had found them safe, public health experts saw a recipe for disaster.

Finally, in December 2006, Congress acted in the wake of the decade-long battle over ephedra, during which the industry was found to have concealed deadly and widespread evidence that supplements containing the ingredient caused heart attacks and other cardiovascular problems.

The new law — the Dietary Supplement and Nonprescription Drug Consumer Protection Act — became effective in December 2007 and requires supplement companies to begin reporting “serious” health problems to regulators, within 15 days after becoming aware of them.  The law also gives the FDA the authority to examine the records of supplement manufacturers.  It mandates that companies maintain those records for six years.

The new rules have led to a tripling of the number of adverse health reports received by the agency, the Government Accountability Office found this January.  For regulators, that is a potentially powerful weapon, although the GAO found that the agency still lacks the resources to adequately monitor the reports.

The GAO also found that the FDA continues to be hindered from effectively protecting the public from dangerous supplements in other ways.  For one thing, supplement makers are not required to disclose all the ingredients in their products; they are deemed “proprietary,” like the closely held trade secret for Coca-Cola.  But that makes it hard to isolate harms when regulators suspect supplements are causing medical problems.

In the Hydroxycut case, for example, the FDA was unable to pinpoint which ingredient was causing harm to the public, so it pressed for a recall of the whole line of products.  But that has left the company free to reformulate the product, without having to tell the FDA about what new ingredients were put in or old ones taken out.

Iovate pulled 14 products, marketed with such names as “Hydroxycut Hardcore” and “Hydroxycut Max Aqua Shed.”  But since the recall it has come out with another line based on “new” and “advanced” formulas. Like other weight-loss products, they promise to boost your metabolism, and like others, often include caffeine as a key ingredient.

Some experts say consumers could still be at risk.

“The recall was a good first step, but it is product specific rather than ingredient specific,” said Ano Lobb, a public health consultant in Barre, Vt.  “The fear I have is that it sends the message that this harm has now been resolved and taken care of.”

The FDA told Iovate in April that it should conduct a “rigorous safety review” if it intended to use any of the old ingredients in the new products, and to share the evaluation with the FDA.  The company declined to say whether it had given the requested information to the regulator.

Indeed, while saying the FDA has made progress, some say it is way too early to conclude whether any changes are anything but incremental, at best.  Without some sort of pre-market approval process, they say, the current system covering diet supplements makes guinea pigs out of unwitting consumers.

“Given the scant resources they have, and given the scant legal authority they have, I am not sure doing something once every three or four years raises any evidence they are being more aggressive,” said Sidney M. Wolfe, the founder and director of the Health Research Group arm of the Washington advocacy group Public Citizen and a long-time FDA critic.  “They are picking their way at it, very slowly and minimally.”

Hydroxycut made a name for itself, and its corporate owners, during the heyday of ephedra.

A profile of Iovate in the National Post of Ottawa, Ont., in 2006 said it grossed as much as $350 million a year, and made a multi-millionaire out of its 30-something owner, Paul Gardiner, a body building enthusiast who used to pose in company ads.  A 2005 Los Angeles Times article reported that the firm spent $10 million a year on advertising and marketing, including TV spots and placement with such retailers as Wal-Mart and GNC.

Anne Andrews said the firm was one of the few companies that aggressively sold ephedra-based products right up until the FDA banned the substance in 2004.  Then known as MuscleTech Research and Development, the company sought bankruptcy-law protection after it was hit with a number of personal injury lawsuits by people who had gotten sick taking its pills.

According to the National Post, MuscleTech reformulated itself, transferring most of its assets to Iovate Health Sciences, which is now based in Ontario, Can., and which continues to use the MuscleTech brand on some of its products as well as the MuscleTech name for its web site.

Today, Iovate, which is privately owned, distributes 750 different weight-loss and muscle-building products and operates in 70 countries, according to company officials.  It touts Hydroxycut as “America’s No. 1 weight-loss supplement.”  It sold about nine million packages in 2008.

In announcing the recall, the FDA cited a risk of severe liver injury associated with the pills, based on evidence it found in reports to the agency, medical journals and discussions with leading liver specialists.  Besides the one death, the pills were associated with at least one liver transplant, and other acute liver injuries.  Several of the injured were members of the U.S. military, including a soldier deployed to Iraq.

Officials said they identified other conditions associated with the supplements, including seizures and cardiovascular disorders.  And an otherwise healthy woman contracted hepatitis while taking six Hydroxycut pills a day in preparation for a body-building competition.

A Wisconsin man has sued Iovate claiming that he developed necrosis of the liver after taking Hydroxycut for three weeks.  Andrews says she has been retained by a former Army sergeant in Germany who had an acute form of heat stroke and was subsequently discharged after taking Hydroxycut.

Several lawsuits seeking class action status have also been filed, including one in Los Angeles accusing Iovate and Hydroxycut of fraud and misrepresenting the safety and effectiveness of their products.

“My whole body was cramping,” says Tony Noyola, 23, who took Hydroxycut for a few days and ended up in the hospital for a week.  “It started in my legs and then started gradually moving up into my upper body.”  His urine turned brown.  Eventually, Noyola says he was diagnosed with rhabdomyolysis, a condition that involves the breakdown of muscles, more often found in victims of earthquakes and bombings.

But the relatively early intervention by the FDA suggests Hydroxycut may not turn out to be the public health catastrophe that some had originally foreseen.  Lawyers said many people who took Hydroxycut and got sick appear to have recovered once they stopped taking the supplements.  That stands in sharp contrast to the situation with ephedra, where lawsuits and injuries proliferated while the industry and government battled over whether the stimulant was truly dangerous.

This new dynamic could be good for public health.

“This time around, the FDA acted obviously much quicker than the former FDA did in the days of ephedra,” says Tom Anapol, a plaintiffs’ attorney in Philadelphia.  “They wanted to eliminate the risk sooner rather than later.  We have a different administration now.  My speculation would be that they are out in front of this.”

Mark Zamora, an attorney in Atlanta, says only a small percentage of the calls he has been getting from Hydroxycut users involve people who may have been seriously injured.  The majority mainly are interested in getting their money refunded, he says.

“Honestly, I think that is good,” Zamora said.  “It shows that people were not severely hurt.”  Zamora said he has been no fan of the FDA over the years, but he senses a change may be afoot.  “Maybe that is a function of a new day at the FDA,” he said.

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By J.G. Preston

For Civil Justice Research & Education Project

On the first day of jury selection, the panelists made clear that Roger Dreyer faced serious obstacles as he sought to show that a Sacramento radio station contest led to the death of Jennifer Strange.  Mrs. Strange, 28, had volunteered for a contest put on by KDND-FM, a highly rated radio station in the Sacramento Valley, in the hope of winning a hard-to-get video game system for her oldest child, a son then age 11.

Jennifer Strange died less than five hours after this photo was taken during the KDND-FM "Hold Your Wee For a Wii" contest

In what passes for entertainment in the world of morning radio, the contest on 107.9 “The End” involved drinking copious amounts of water without urinating.  Mrs. Strange consumed nearly two gallons of water in three hours in a game called “Hold Your Wee For A Wii.”

She was dead that afternoon. The cause: acute water intoxication.

“We should be watching out for what we do,” one prospective juror said.  “She did a stupid thing.”

Said another:  “It’s too easy to sue. The victim’s choice to participate makes a difference.”

A third added:  “Monetary awards to lawyers in civil cases are unfair. For 30 to 40 percent of the award to go to the attorney is outrageous.”

By the end of the trial 45 days later, the jury had awarded $16.5 million to Mrs. Strange’s widower and her three young children. This is the story of how plaintiffs’ attorneys Roger Dreyer and Harvey Levine overcame a skeptical jury pool to win one of the largest wrongful death awards ever in California.

“Nobody believes me when I say this, but this wasn’t just about the money,” Dreyer said.  “This family went through hell and they did not want someone else to suffer the way they did.  They wanted to hold the people accountable who needed to be held accountable and send a message to radio stations across the country.  And the best way to do that is to litigate in front of a jury.”

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KDND is one of 110 stations in owned by Entercom Communications, a publicly traded corporation that is one of the nation’s five largest radio chains. Entercom executives had every reason to be pleased with their Sacramento affiliate.

KDND’s “Morning Rave” show attracted an important slice of the listening public:  young women who are particularly coveted by advertisers.  Between the ads, the hosts provided a mix of goofy humor, banter about sex, contests and music.

On Jan. 12, 2007, on-air hosts Adam Cox (known on-air as “Lukas”), Steve Maney and Trish Sweet unveiled their latest gimmick to draw in listeners, the water-drinking contest.  The station’s promotions director prepared the rules, but didn’t share them with the hosts or contestants.  Nor did the station submit the rules to Entercom’s corporate attorneys for approval as required under the company’s policy for any contest involving “an unusual method of winning.”

Some of the empty bottles drained by contstants during the contest

As written, the rules called for contestants to drink eight ounces of water every 15 minutes.  In the hosts’ view, that was not sufficient.  The contest opened with participants drinking eight ounces every 10 minutes.  After two hours, the hosts became concerned that the contest wouldn’t produce a winner by the time the show ended at 10 a.m.  So the contestants were told to double their intake, and down 16.9 ounces every 10 minutes.

A little more than three hours after her first bottle of water, Mrs. Strange dropped out of the contest.  She was runner-up to the woman who won the video game.  To compensate Mrs. Strange, the station gave her two tickets to a Justin Timberlake concert that night in Sacramento.

The tickets went unused.  She left the station and headed home, feeling too ill to go to work that day at her job as an office supervisor for a medical services company. Her mother found her dead shortly before 3 p.m.

Mrs. Strange left behind her husband, Billy Strange, their two preschool children, Ryland and Jorie Strange, and 11-year-old son, Keegan Sims.  They joined to file a wrongful death suit before the month was over.

Jennifer Strange with son Keegan Sims (left), husband Billy Strange, daughter Jorie Strange (below) and son Ryland Strange (far right)

In Dreyer, they chose a former California “Trial Lawyer of the Year” with nearly 30 years of experience.  Dreyer had tried more than 100 jury trials to conclusion, many of them in Sacramento County Superior Court.

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Sacramento District Attorney Jan Scully declined to prosecute.  The Federal Communications Commission opened an investigation.  To this day, the case remains open and unresolved.  But two and a half years later, Jennifer Strange’s husband and children got their day in court, in the form of case 07AS00377, William A. Strange et al. v. Entercom Sacramento LLC et al.

Prospective jurors filed into the courtroom of Superior Court Judge Lloyd A. Phillips.  A World War II veteran, Phillips was admitted to the state bar in 1953 and was appointed to the Superior Court bench by then-Governor Ronald Reagan in 1969.   Phillips is now 83 years old but has continued to hear cases on an occasional basis since retiring on deferred retirement in 1988.

Dreyer used voir dire to address prospective jurors’ attitudes about unnecessary civil suits and high fees for plaintiffs’ lawyers.  “We can’t change the jurors’ perspective on lawyers,” he said later.  “We can’t change their viewpoint that we’re all greedy, that there’s fraudulent claims. So I have to make them think, ‘This guy’s the exception. I can trust Mr. Dreyer.’

“I have to do that over time.  And I have to start during jury selection.  I have to be candid and honest with them.”

The jury selection process gave jurors a chance to get to know Dreyer.  Dreyer also got to know them.  He used his six peremptory challenges to eliminate jurors he felt would be unfriendly to the plaintiffs.  He ended up with a jury of six men and six women, after two-and-a-half days of voir dire.

Dreyer began his opening statement on September 17.  He saved some of the most powerful information for the next day.  He played for jurors – for the first of what would be many times – excerpts of the KDND broadcast on the day of the contest.  Those excerpts would be some of the plaintiffs’ strongest evidence.  While playing the excerpts, Dreyer showed the jurors pictures of Strange that were taken by station employees during the broadcast.

"Morning Rave" co-host Trish Sweet

At 5:41 a.m., as the hosts of the show were setting the stage for the contest, Trish Sweet said, “Can’t you get water poisoning and, like, die? … Maybe we should have researched this.”

In an indication that the hosts were aware of the dangers, one made reference to a Chico State University student who died of water intoxication after a fraternity hazing ritual in 2005.

At 6:13, a woman who identified herself as a pediatric nurse called the station and was placed on the air.  She warned that the contest was dangerous.  One of the hosts brushed her aside, saying:  “Don’t worry, they’ve all signed releases.”

At 8:15, a woman who said she had lived in Chico called to warn the hosts about water intoxication and and brought up the fraternity hazing death.

“They signed releases,” she was told. “It’s not our problem.”

The woman called back a few minutes later and told the show’s producer off the air the contestants should at least be given salt.  Her advice went unheeded.  If the station had paid attention, Mrs. Strange might still be alive.  In fact, a UC Davis medical professor later testified that a small amount of salt consumption would have restored her blood chemistry and prevented her death.

At 8:18, yet another woman called and told the hosts on the air, “Those people that are drinking all that water can get sick and possibly die from water intoxication.”

Again, the warning was ignored.

“They signed releases so we’re not responsible. It’s okay,” the host said.

The radio show hosts thought Jennifer Strange's belly, bloated from excessive water consumption, was a hoot.

At 9:27, with only two contestants remaining, Jennifer Strange was put on the air.

“My head hurts,” she said.  “They keep telling me that it’s the water, that it’ll tell my head to hurt.”

The hosts offered her tickets to drop out.  After accepting the ticket offer, she entered the on-air studio and was put on the air to receive her prize.

“Oh my gosh, look at her belly!” Lukas said.  “Are you pregnant?”

“Look, it’s totally sticking out!” Trish Sweet chimed in.  “That is so funny!”

Dreyer displayed a photo of Mrs. Strange’s water-filled belly, taken by a radio station employee, on a large screen for jurors to look at while they heard this exchange.

After dropping out of the contest, Jennifer Strange went on the air to accept tickets to a Justin Timberlake concert she wouldn't live to attend

—–

Billy Strange, Jennifer’s widower, sat quietly behind his attorneys’ table, seeing his wife’s photo and hearing her voice again as he would through much of the trial.  He rarely moved while listening to testimony and didn’t attract any attention to himself.

Often while recordings of his wife’s voice were heard in the courtroom, he would gaze at the floor.   Sometimes his eyes would well up with tears.  On occasion the emotion would appear to overcome him and he would quietly walk out of the courtroom until he was more composed.  Jurors would see his tears later, when he was called to testify.

Before finishing his opening statement, Dreyer told the jury that Jennifer Strange had no idea about the dangers of excess water consumption, just as Entercom’s top executives would later testify that they had no idea.

The hosts of the show knew about the death in Chico.  They also knew their “stunt guy” felt ill after drinking a large amount of water in a stunt a few months before the contest.  And numerous listeners called with warnings during the contest.

They never shared that information with the contestants.

—–

After Dreyer and Levine finished their opening statements, defense attorney Don Carlson, representing Entercom, asked Judge Phillips for a five-minute break to give him time to set up his audio-visual presentation.

Harvey Levine

Once the jury left the courtroom, defense counsel Doug Sullivan, representing Entercom’s Sacramento market manager John Geary, asked Phillips to declare a mistrial based on several comments made during the plaintiffs’ opening statements.  Among them were Levine’s statement that Strange chose not to have an abortion as a high school student when she was pregnant with her oldest child, the intended recipient of the video game.

“We did not make voir dire on abortion,” Sullivan argued.

The motion was denied.

That was on a Friday.  The following Monday, before jurors entered the courtroom to hear the first witness of the case, Sullivan again moved for a mistrial, based on the abortion comment.

“Is this going to happen every morning?” Phillips, seeming perturbed, asked.  The attorneys argued over various topics for 15 minutes before Phillips cut off the conversation.

“I’m going to hate coming to work in the morning if there’s always going to be a motion for a mistrial,” the judge said.

The defense moved for a mistrial again the next morning, objecting to the examination of the radio show’s “stunt guy,” Peter Inzerillo, known on the air as “Fester.”  The motion was denied.  Before the case went to the jury there would be two more defense motions for a mistrial and a motion for a directed verdict in favor of the defendants.  All were denied.

—–

On the second day of testimony, three people who called the radio station during the contest were put on the witness stand by the plaintiffs.  The first, Kristina Bouyer, is a pediatric nurse who called before the contest even began to say the contest was dangerous.

Dreyer spent no more than 10 minutes questioning her.  That was the point.  It may have been one of the keys to the Dreyer’s case.

“Have you ever been in a situation where the silence is deafening, where it hurts, it’s so quiet?  That’s what it was like between my questions and her answers,”  Dreyer said  “I tried to go as slow as I could without being too obvious.”

Most of the time, Dreyer speaks quickly.  His questions can be rapid-fire.  On several occasions, the court reporter asked Dreyer to slow down so she could transcribe what was being said.  But not with nurse Bouyer.  Pacing became important.

“I’m always going at mach speed and the jurors saw that during the course of the case.  So when I slow myself down like that, I want the jury to know, okay, this is really important.  And they’re drawn into it.”

Carlson didn’t ask her a single question.

“That was extremely important,” Dreyer said.  “She gets up and she walks out, and it’s deathly quiet, and I’m making sure I don’t make a noise and I don’t move because I want the jury to watch this witness leaving without a question after she’s just absolutely cut the defense’s throat.”

—–

In the second week of the trial, Dreyer called John Geary to testify.  At the time of the contest Geary was the market manager for Entercom’s six Sacramento radio stations, all housed in the same building.  He remains in that position today.  When he testified, Geary was a defendant as an individual along with his corporate employers.

Dreyer began interrogating Geary from a position behind the bar, pacing in the aisle of the spectators’ area of the courtroom.  It was a noticeable change from previous examinations, when Dreyer had stood within a few feet of the witness.  His new position forced Dreyer to speak up to ensure Geary could hear him.  It also made Geary raise his volume level for Dreyer to hear him.

As market manager, Geary had ultimate responsibility for his radio stations.  But as it happened, Geary did not pay much attention to the Morning Rave.  He was a manager who rarely listened to the stations he was supposed to oversee, he testified.  Indeed, his employees had testified previously that Geary had no knowledge of the “Hold Your Wee For a Wii” contest in advance.  Nor was he aware that the contest was taking place – even after telling one of the “Morning Rave” hosts to keep the noise down in the staff break room where the contestants had gathered.

Geary testified the first he knew of the contest was when he was told Jennifer Strange was dead.

Late in the day, during re-direct, Geary’s attorney Doug Sullivan asked Judge Phillips, “Could you instruct Mr. Dreyer not to yell at my client?”

“He’s not yelling,” Phillips said, though he did ask Dreyer to move forward.

After the trial Dreyer explained why he placed himself where he did during his examination of Geary.

“I wanted to make it more high drama theater.  But I couldn’t have done that with the first witness.  I saved Geary for that spot.  I had to build the case slowly, I had to get the jury to think, ‘We get where you’re at. We believe you now.’

“Timing is very important.”

“Basically, you’re presenting a play.  You need to do it in a way that people never get tired of listening to it.  If you sit in a play for two-and-a-half hours and you’re thinking, ‘When is this thing going to be over?’ you’re not going to be listening to it.

“But if the play is just riveting, it’s drama, it takes you into it, and at the end of the two-and-a-half hours you’re thinking, ‘It’s already over? I want you to keep going on, I want to know what happens in the next act!’

“That’s the art of putting on a trial.

“The difference is, it’s real, it’s factual, and you can never make it look dramatic. You have to let the drama of the case capture the jury.”

On the next to last day of the testimony, Dreyer agreed to drop Geary as a defendant.  Up to that point, Geary had been in the courtroom for virtually every minute of the trial.

Dreyer explained he thought Geary was personally accountable for Strange’s death, but also was concerned that some jurors might be “distracted” by Geary’s status as an individual defendant and that it could have affected the amount of the damage award.  Dreyer also made clear why he waited so long to dismiss Geary.

“I wanted him to sit,” Dreyer said.  “I wanted him to listen.  I wanted him to hear everything that happened in this case.”

—–

George Kaysen

The day after Geary testified, Dreyer called George Kaysen, chair of the UC Davis School of Medicine biochemistry department, to the stand.  Kaysen explained how excessive water consumption leads to an imbalance in the blood’s salt level.  Cells in the body begin to swell to compensate, and as brain cells swell, the brain runs out of room to expand because of the skull.  The resulting pressure causes brain damage and, eventually, death.

Kaysen said Jennifer Strange’s brain showed signs of that swelling. After her death it weighed almost 8% more than the upper limit for women.

Kaysen said the swelling in the brain would lead to confusion, disorientation and impaired judgment, similar to alcohol intoxication. And smaller people, such as Mrs. Strange, are more vulnerable to water intoxication.

—–

On October 1, two weeks after opening statements had begun, one of the jurors, Christine Lorda, called the court to say she was ill.  She made it to court in time for the start of the day’s testimony, but during the mid-morning break she told the bailiff that she would need to go home. Phillips immediately decided to replace Lorda to avoid any delay in the trial.

Four slips of paper, each with the name of an alternate juror, were put into a paper cup.  Sullivan then pulled out one of the slips.  The choice was the only male among the alternates, making the composition of the jury seven men and five women.

“That was a great pick,” Dreyer said, then turned to the judge and said, “That was a great idea.”  Dreyer quipped: “I’m just being a smart aleck.  I withdraw that smart aleck remark.”

“All of them?” the court reporter asked.

“Just that one,” Dreyer responded.

Dreyer was clearly happy to add another man to the jury.  “Women are hard on women,” he said after the trial.  “Men protect women.  Men particularly protect great women.  I really felt that males would like Jennifer and would like Billy.”

—–

The plantiffs’ final witnesses were Jennifer Strange’s two young children.  Young children aren’t often called to testify in wrongful death cases involving a parent.  Mothers in particular often refuse to let their children testify.

“We absolutely had to put these kids on the stand so the jury could see who they are and not just their names,” Dreyer explained.

Six-year-old Ryland took the stand first.  Dreyer asked him about his school and his teacher, about his big brother and his little sister.

Then three-year-old Jorie sat in the witness box.  Dreyer asked how she was and she leaned toward the microphone and boomed out, “GOOD!” eliciting smiles and laughter from the jurors.

He asked Jorie about her preschool and about her brothers, and she got another laugh when she said big brother Keegan’s shoes “are kind of stinky.” Dreyer did not ask about their mother.

“I think the jury was relieved we didn’t.  It would have looked contrived.  The worst thing I could have done was make those children cry on the witness stand.  The jury would have hung me up by the thumbs.”

Mrs. Strange’s children were on the stand a total of five minutes.

Then Dreyer rested the plaintiffs’ case.

—–

Plaintiffs’ witnesses had filled 11 court days.  Defense attorney Carlson called four witnesses, and rested his case on the same day that Dreyer and Levine rested theirs.

The jury got the case the morning of October 15.  They wouldn’t come back with a verdict for two weeks.

The jury was unanimous in finding Entercom Sacramento negligent, and unanimous in finding that negligence caused harm.  The jury was also unanimous in finding that the parent company, Entercom Communications, was not negligent.

Then came the award for economic damages: $1,477,118.

“That was a bad sign,” Dreyer said.

Even Carlson, in his closing argument, suggested an award that included $1.8 million in economic damages, and $2.7 million in noneconomic damages.

Then the jury spoke.  The non-economic damage award: $15.1 million.
“Two years ago, I served them with a statutory demand for $10 million,” Dreyer said.  “They could have settled this case a long time ago for a lot less, but they didn’t.”

Next came what Dreyer called the best part of the verdict.  By a 10-2 vote, the jury determined Jennifer Strange was not at fault.

“We got people to put aside this concept that she had to be responsible because she was a participant,” Dreyer said.  “Now her kids are going to grow up, and they’re never going to think their mom played a role.

“And that’s huge.”

—–

Juror LaTeshia Padgett talked to reporters after the verdict:

“I’m a registered nurse, but I myself wouldn’t have known that drinking too much water would be an issue.  So I think they [the "Morning Rave" hosts] had the task to let her know what they were told with all the phone calls [warning of danger during the contest], even if they didn’t know beforehand.

“During the contest they could have stopped it at any time.  They got all the information that they needed, and they didn’t share it with the contestants.”

The Strange family got more than money from the verdict.  The family also got Entercom management to agree to make changes in its contest procedures.  Among those changes, the corporation will train on-air hosts in what are appropriate contests.  At the time of “Hold Your Wee For a Wii” only promotion directors and station managers were trained.  The corporation also will require the presence of medical personnel at any contest involving ingestion.  Station personnel will be trained on proper responses in the event of a medical emergency involving a contestant.

“The civil justice system dictates policies and establishes standards of care, what communities are going to accept,” Dreyer said.  “What deters corporate misconduct is smoking them in the courtroom, and making them pay, and embarrassing them.

“In what other country on earth can a high school educated, blue collar guy hold a company with 110 radio stations, making millions and millions of dollars a year, accountable for its conduct?”

ADDITIONAL RESOURCES:

Plaintiffs’ trial brief

Defendants’ trial brief

Related posts:

For Civil Justice Research & Education Project

Penelope, a 26-year-old lawyer in her first job out of law school, learned first-hand an unintended consequences of newly enacted federal legislation cracking down on credit card companies:  Credit card companies are taking aim at consumers.

Penelope, not her real name, had a balance of $450 on her American Express Blue Cash card that had a credit limit of $10,000.  So she didn’t think twice about using the card to purchase $2,000 worth of tickets for a vacation on the American Express travel web site.

She still doesn’t have the tickets.  Her attempts to use her card to purchase them were unsuccessful.  When she tried to find out why,  someone at AmEx finally told her that her credit limit had been reduced to $1,000.  That was the first Penelope had heard of the change.

One of the reasons she was told her limit was reduced was that she wasn’t making enough money.

“They gave me a $10,000 credit limit when I was in college making $10 an hour as an intern,” said Penelope.  “Now I’m an attorney with a stable job and I’m not making enough?”

Penelope is far from alone.  Many consumers are learning their credit limits have been reduced — in some cases even more severely than Penelope’s was — just as the cash-flow crunch of the holidays arrives.

“Credit card companies are definitely trying to limit their risk and are turning around their previous policy of increasing credit limits without much underwriting,” according to Consumers Union staff attorney Lauren Bowne.  “But they do it with no notice, which can be a problem for consumers who depend on those credit lines and pay them off on a regular basis.”

Penelope suspects her credit limit reduction was triggered by her attempt to purchase the tickets.  When she first tried to make the purchase, she wasn’t told it would put her over her limit.  Instead she got an error message, then was contacted by someone from American Express looking for fraud — not unheard of when someone tries to make an uncharacteristically large purchase with a credit card.

But that AmEx employee didn’t tell Penelope her credit limit had been changed.  She kept trying to make the purchase and kept getting error messages.  When she called the company, she was passed along to three different departments before someone told her her credit limit was now $1,000.

“As of when?” Penelope asked.

“As of today,” she was told.

Penelope says she has never had a late payment on the account, or on any other debt.  She has always paid American Express at least the minimum amount due and has at times made more than one payment in a billing cycle.  Her balance had at one time been much larger but she had paid it down.  She says her only other debts are a mortgage on her Sacramento home and a student loan primarily from her time at McGeorge Law School in Sacramento.

What angered Penelope at least as much as the reduction in her credit limit was the fact that she didn’t find out about it until she tried to make a purchase.

“It’s unacceptable to have such a drastic change in my limit with no notice,” she said.

An AmEx employee gave Penelope three reasons why her limit was reduced.  One, as mentioned, was she doesn’t make enough money; another was she has too much debt (in AmEx’s eyes).

The third was that she wasn’t making high enough payments.  When Penelope asked how that could be true when she always paid at least the minimum amount she was asked to pay, the response was … silence.

—–

The inability to buy her vacation tickets — or anything else that would put her over her new credit limit — isn’t the only problem caused by the reduction.  Even though her balance hadn’t changed, her “debt utilization ratio” (the ratio between her balance and her credit line) had jumped dramatically.  That is one of the factors that goes into a credit score.

If Penelope had other credit cards, a lower credit score would give those creditors an excuse to raise her interest rate…or lower her credit limit, which could in turn lead to further rate hikes or limit reductions.  And a lower credit score makes it more difficult to qualify for a mortgage or car loan.

Connie Brooks addressed this in a blog on AskMrCreditCard.com:

The problem with the unexpected credit limit decreases is simple – It wrecks your debt-to-credit ratio if you carry a balance. Your available credit limit makes up almost a third of your FICO score.

Most readers that left comments were carrying well under 30% of their available credit from month to month. Now that their limits have dropped, they look like they are using nearly all of their credit. That alone is enough to drop their credit score.

This is why the Consumers Union’s Bowne is fighting to require banks give at least 45 days notice of a decrease in credit limit, as they now must to raise interest rates or impose new fees.

“That kind of notice would give consumers the ability to develop a strategy for dealing with the credit score implications,” Bowne said.

Reductions in credit limits don’t just have an impact on credit scores.  It can also limit a consumer’s ability to deal with a financial emergency, especially when lenders reduce credit limits to just above the account balance.

“One of the reasons consumers have credit cards is to have something there in case of an emergency,” said Josh Frank, senior research analyst for the Center for Responsible Lending in Durham, N.C.  “If as soon as the economy goes bad, credit lines go away, that’s obviously not much of a safety net.  Now the idea that you should take all your available cash and pay down credit card debt, because you would have access to credit in an emergency, no longer makes sense.”

Frank said he thinks the trend to reduce credit limits is peaking and calls it an “economic cycle issue” brought about by charge-off rates of 10%, more than double what they were two years ago.

The “Frontline” documentary series on PBS, in conjunction with The New York Times, produced an episode titled “The Card Game” that recently aired on public TV stations nationally.  According to Eric Mink in the Times:

The program…springs from the enactment in May of the Credit Card Accountability, Responsibility and Disclosure Act of 2009. As the calendar counts down through a lobbyist-induced, eight-month delay to the law’s effective date, the card companies have been infuriating consumers by hiking rates on existing balances, lowering credit limits and inventing new ways to induce late payments and trigger multiple penalty fees.

A report by Larry Abramson of National Public Radio earlier this year said credit card companies are dropping credit limits, even for good customers, because they’re having a hard time telling who is a good risk and who isn’t in this economy.

“This is the problem with unemployment that doesn’t seem to be abating,” says David Robertson, publisher of the Nilson Report, a trade journal for the credit card industry. He says companies are poring over unemployment and foreclosure reports, trying to predict which borrowers in which parts of the country will run into trouble in the near future.

“They’re trying to determine who the customers might be who today look perfectly good — able to pay their bills — but 60 days from now will unfortunately be out of work,” Robertson says.

So, upstanding, bill-paying citizens might face a precipitous plunge in their credit card limit because of something that hasn’t even happened yet.

The CARD Act does not include anything that will make it more difficult for credit card companies to lower a consumer’s credit limit.  No minimum notification is required.  The topic of lowering credit limits is addressed only in terms of requiring a study on the issue.

The CARD Act was enacted when it was signed by President Obama on May 22, 2009.  That means the report on lowered credit limits, which could include “recommendations to the Congress on any regulatory or statutory changes that may be needed to restrict or prevent such practices,” isn’t due until May 22, 2010.

But the language of the bill calls for examining how credit card companies lowered credit limits for a period ending on the date the bill was signed.  Any limit reductions that have happened since then — such as Penelope’s — wouldn’t be part of the study.

For now, the Federal Reserve does not consider lowering the credit limit to be a “significant change” that would require a 45-day notice before implementation as required under CARD.  Consumers Union has asked the Fed to consider changing that stance before the final rule is issued, but there’s no assurance the Fed will do so.  Josh Frank of the Center for Responsible Lending said there seems to be a fear that if consumers had advance notice of a credit limit reduction, they would run up their balance before the reduction could take effect.

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