Government report not necessarily the last word in Toyota case
Friday, February 11, 2011
A report by NASA engineers found “no electronic-based cause for unintended high-speed acceleration in Toyotas,” in the words of U.S. Transportation Secretary Ray LaHood. But the report has not ended efforts by attorneys for drivers who have experienced unintended acceleration to determine whether electronics could have been the cause of the problem.
Seattle attorney Steve Berman, co-lead counsel on the plaintiffs’ steering committee for the economic class actions in the multidistrict litigation against Toyota, took issue with the findings. “Our experts tell us that the report is just wrong, and they are confident that they are going to be able to show that the electronic throttle control contributed to unintended acceleration,” Berman told The Washington Post.
Berman indirectly questioned the report’s methodology and said
…many of its findings are in stark contrast to what Toyota drivers across the country experienced–and continue to experience–even after the series of recalls. There are too many reports of runaway events in vehicles with the pedal and floor mat “fix” to eliminate other causes such as electronic throttle control.
The “fix” Berman referred to was handled in Toyota’s recall of 8 million vehicles to repair problems that led to accelerator pedals being stuck to the floor and floor mats being trapped. The NASA report found those mechanical defects could have been the cause of unintended acceleration.
But the report acknowledges there could still be an undiscovered electronics issue:
Today’s vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore, absence of proof that the [electronics] has caused [unintended acceleration] does not vindicate the system.
“It’s very hard to prove a negative,” Edmunds.com chief executive Jeremy Anwyl told the Post. “It was a good move to bring NASA in for credibility, but we haven’t moved the ball forward. This will be an issue that will continue to fester.”
Jeffrey Pepski, a driver who complained to the National Highway Traffic Safety Administration about sudden acceleration of his Lexus ES, wasn’t reassured by the report. “It doesn’t resolve my concerns,” Pepski told the Los Angeles Times. “Just because they couldn’t reproduce the problem doesn’t mean it didn’t happen. All it means is that they couldn’t reproduce it. I stand by my story.”
The question of whether Toyota had an electronics problem with its cars goes to whether consumers will be able to form a class to sue Toyota for economic damages. “The new study throws a monkey wrench in the factual situation,” George Washington University Law School professor John Banzhaf told The National Law Journal (the story is available online only to paid subscribers). “By complicating the cases makes it less likely they’ll be able to proceed in a class action.”
Banzhaf told National Law Journal reporter Amanda Bronstad the NASA report threw doubt on the similarities of prospective class members because it did not identify a defect (such as faulty electronics code) common to all vehicles.