Volume 6, Issue 3 Safety Research & Strategies, Inc. June / July 2009 T HE SAFETY RECORD

Chrysler, GM Bankruptcies Concluded, Defect Victims Cheated INSIDE THIS WASHINGTON, D.C. – The designation under the FTC’s 1985 you is a source of pride, then ISSUE Obama administration’s drive-by Used Rule, which was promul- Chrysler’s chest must be puffed out bankruptcies have left the victims gated to prevent used car dealers so far that the buttons are popping Chrysler, GM Bankruptcies 1 of defect-related crashes to eat from misrepresenting or failing to off its pinstriped jacket. The bank- Concluded, Defect Victims their dust, but consumer advo- mention to buyers important facts ruptcy has wiped away all current, Cheated cates are turning to other strate- about warranty coverage, via a pending and future claims against gies to force Chrysler and Gen- Buyer’s Guide sticker displayed on vehicles manufactured by the ‘old Sudden Unintended Acceleration 1 eral Motors to do the right thing. the vehicle. Chrysler,’ said Safety Research & Redux: The Unresolved Issue Consumers for Auto Reliability Strategies president Sean Kane. and Safety, along with Consumer The bankruptcy and sale of the Action, Center for Auto Safety, once-innovative American car- General Motors, which completed NHTSA’s Rulemaking Priorities 5 Center for Justice & Democracy, maker Chrysler to Fiat SPA con- its bankruptcy nearly a month later, to Include Ejection Mitigation th and Seat Belts on Motorcoaches and National Consumers League, cluded on June 10 , with $6.6 bil- had sought the same freedoms from have petitioned the Federal Trade lion in federal financing. In just 42 product liability. But the company Commission to require labels days, the government pushed the was taken aback by the highly pub- U.S., EU Have Opposing Views 5 informing buyers of a used major players over the finish line licized efforts of consumer advo- on Daytime Running Lights Chrysler’s unique liabilities. The and successfully fended off at- cates and attorneys representing label they’ve suggested goes like tempts from investors and victims defects victims to retain their rights this: of Chrysler defects to re-jigger the to seek compensation via the state deal. The owners of the “new” tort system. There were news re- Judge Rejects Malibu; Awards 7 “WARNING This vehicle was Chrysler are a union retirees’ trust, ports about the victims GM was $21 Million in Roof Crush Case produced prior to the date when with 55 percent, Fiat, with a 20- leaving behind and television ad- the Chrysler bankruptcy was percent share that could grow to 35 vertisements opposing GM’s move

approved. If you buy this vehicle percent, and the U.S. and Canadian to shed all liability. Twelve state and are injured or killed, even if governments, which hold minority attorneys general from Connecti- your injuries were caused by the stakes. cut, Kentucky, Maryland, Minne-

manufacturer, you or your survi- sota, Missouri, Nebraska, North NHTSA Unveils Tire Fuel Effi- 7 vors will not be able to recover In a June 11 New York Times story, Dakota, Vermont, Illinois, Califor- ciency Consumer Information your losses by taking action an anonymous Treasury official nia, Kansas and Ohio objected to Proposal against the manufacturer. If your said: “This morning’s closing the sales, arguing that the bank- passengers are injured or killed, represents a proud moment in ruptcy court overstepped its legal even if their injuries were caused Chrysler’s storied history. The authority in granting the elimina- by the manufacturer, they and Chrysler-Fiat alliance has now tion of successor liability. GM / Chrysler Bankruptcies: 8 their survivors will not be able to exited the bankruptcy process and What’s In What’s Out recover their losses by taking is poised to emerge as a competi- GM and the White House’s Auto action against the manufacturer.” tive, viable automaker.” Task Force, headed by Steven Rat-

ner, who has since stepped down, The California-based advocacy “If shirking your due care responsi- came to an eleventh-hour agree- group is asking for the bilities to customers who trusted (Cont. on p. 8)

Sudden Unintended Acceleration Redux: The Unresolved Issue SAN LUIS OBISPO, CA – On February 5, 2007, once, coming to rest in the surf. Anne Ezal however, continued speeding down the ramp, Bulent and Anne Ezal were headed to lunch at died of her injuries in the crash. Bulent Ezal across the road at the bottom, and finally came the Pelican Point Restaurant in Pismo Beach, later recovered. to rest with its nose in an embankment. Schwarz California. The restaurant is nestled on the edge died of her injuries; Bookout spent two months of a cliff, affording dramatic views of the Pacific Seven months later, Jean Bookout and her recovering from head and back injuries. Ocean below. The parking lot was downhill of friend Barbara Schwarz were exiting Interstate the restaurant, so Ezal rode the of his Highway 69 in Oklahoma – also in a 2005 Same make; same model; same problem. Two 2005 Camry as he approached a parking space. Camry. As she sped down the ramp, Bookout, severe crashes; two deaths; two cases of serious He was at a complete stop, when the Camry sud- the driver, realized that she could not stop her injury. According to the National Highway denly accelerated, jumping a small curb, crashing car. She pulled the parking , leaving a Traffic Safety Administration, however, the through a fence and over the bluff. The vehicle 100-foot skid mark from right rear tire, and a doesn’t have a problem with fell 70 feet to the rocks below, and turned over 50-foot skid mark from the left. The Camry, (Cont. on p. 2) Page 2 Volume 6, Issue 3

Sudden Unintended Acceleration Redux: The Unresolved Issue (Cont. from p. 1) cannot or will not tease out the products rely on electronic systems ing SUA unless there are mechani- causes of SUA. in understanding the myriad ways cal or driver error issues, which sudden unintended acceleration their microprocessors and electron- only complicates matters.” (SUA). In between these horrific “We know this is happening out ics components can fail. NHTSA, crashes, the agency denied a peti- there,” he says. “Unfortunately, if the authors conclude, has also Short People Can’t Drive Audis tion requesting a defect investiga- the person is elderly they are going failed miserably in its attempts to tion from the owner of a 2006 to certainly going to blame them find a cause other than a floor mat In the 1980s, Audi became the Camry, who complained that the for causing the accident, when we or driver error, because the agency poster child for Sudden Unintended engine of his current car and the know that’s not the case. Instead of employs an arbitrarily narrow defi- Acceleration. And in many ways, 2005 Camry that he previously trying to fix the problem, they nition of SUA – that it must occur this vehicle’s SUA problem be- owned repeatedly surged. blame the driver.” from a standstill –and has con- came the model of how these prob- NHTSA’s Office of Defects Inves- ducted its investigations on incor- lems would be investigated by tigation briefly looked into the Indeed, the history of sudden unin- rect assumptions and illogical rea- NHTSA, defended by the industry complaint, but came up empty. tended acceleration is studded with soning. and used as the sine qua non of poor research, regulatory omissions SUA myth-busting. “ODI has not identified a vehicle- and industry success in holding off Drivers have been complaining based defect that would have pro- any serious outside examination of about sudden unintended accelera- More than 1,000 consumers alleged duced the alleged engine surge in malfunctions within a vehicle’s tion events for a quarter of a cen- that their Audi 5000 vehicles had the petitioner’s vehicle, nor was it electronic systems. tury and continue to lodge these accelerated without driver input; able to witness such an event when complaints with manufacturers and 175 had been injured,and four died road testing the petitioner’s vehicle. Sudden unintended acceleration is NHTSA. Yet, NHTSA has made in SUA crashes. The company Evaluation of a suspect a complex problem. There are mul- virtually no substantive progress denied that there was anything actuator removed from the peti- tiple causes when a vehicle shoots toward understanding how elec- wrong with the vehicle and blamed tioner’s vehicle did not reveal a forward or back in apparent contra- tronic systems housed in an envi- the problem on shorter than aver- component problem, warranty and diction to the driver’s commands: ronment subject to heat, vibration, age drivers who did not have much parts sales of the actuator are unre- design defects which induce driver sudden shocks, various levels of experience driving an Audi. These markable. These data do not sup- error – such as poor pedal place- electromagnetic interference, mois- small, confused drivers had mistak- port the existence of a wide-spread ment, the lack of a shift interlock, ture, and other corrosive conditions enly depressed the gas pedal when defect or ongoing concern,” the floor mat interference, mechanical could fail; or how they could be they meant to step on the brake, agency said in its April 2007 deci- or electromechanical defects and detected; or what appropriate coun- Audi said. The response was a sion. electronic defects. The latter – termeasures must be instituted public relations and marketing which is the most difficult to pin- other than expecting drivers to nightmare. Audi sales plunged, and Another SUA inquiry closed with a point – is nonetheless a more likely somehow overcome an open throt- the complaints continued. whimper, and without a satisfactory possibility as vehicle systems rely tle on a runaway vehicle. They explanation for a phenomenon that more heavily on sophisticated com- slumber, while vehicles grow ever The Audi 5000 was the subject of has plagued various makes and puter-driven electronics. And yet, more stuffed with electronics that an infamous 60 Minutes story, in models for nearly 30 years. Since automakers and NHTSA behave as control the vehicle’s braking, sta- which the news program attempted 1999, the agency has received though it is perfectly rational to bility and speed. to simulate SUA. The broadcast seven defect petitions to investigate assume that electronics housed in drove Audi sales down further, and sudden unintended acceleration and the hostile automotive environment Attorney (and engineer) Don the network was heavily criticized launched eight SUA investigations – including the fault detection sys- Slavik, who represents Ezal, is for its one-sided story. As the his- into GMs, Fords, Toyotas and tem – will always function as in- hoping that NHTSA will take a tory is often recounted today, Volkswagen models. In the last tended, and that malfunctions will second look at the problems of the NHTSA vindicated Audi and CBS decade, manufacturers have be easily reproduced in a laboratory 2005 Camry – although he isn’t never apologized for maligning the launched 31 recalls. More typi- setting. sanguine about the outcome. automaker. cally, manufacturers deny a me- chanical problem and blame the Elsewhere, however, the case has “It’s clear the NHTSA lacks the However, between 1982 and 1987, problem on driver error. If the com- been persuasively made that resources to fully investigate this. Audi launched five recalls to ad- plaint numbers are high, they NHTSA and automakers have ig- NHTSA does not have special staff dress the problem. The first three blame that on a media-induced nored the real possibility of inter- with experience in electronic con- attempted to fix what Audi had frenzy. NHTSA, for the most part, mittent and other faults in the elec- trol systems – and their small staff characterized as the driver-error has thrown up its hands, opening – tronic systems of today’s automo- is tasked with a wide range of re- problem by tweaking the pedal and then closing – multiple investi- biles. The 2003 reference book, sponsibilities,” says Slavik of the positions. The fifth and final recall gations without finding a defect. Sudden Acceleration, by Carl E. Milwaukee firm, Habush, Habush for 250,000 1978 to 1987 vehicles This has led some to conclude that Nash, of the National Crash Analy- & Rottier. “That’s where the tort added a brake-shift interlock – SUA is solely the province of pedal sis Center at George Washington system comes in to assist more which requires drivers to depress misapplication and stuck floor University, Clarence Ditlow, of the fully in investigating this problem, the brake pedal before shifting out mats. Center for Auto Safety, James Cas- which affects millions of vehicles.” of the Park position. telli and Michael Pecht, Professor Sean Kane, president of SRS Attorney Graham Esdale of the and Director CALCE Electronic agrees. “SUA presents unique and The fourth recall was probably the Beasley Allen law firm in Mont- Products and Systems Center at the resource intensive investigation most telling about the Audi 5000’s gomery, Alabama, represents the University of Maryland, argue that that can quickly overwhelm the SUA problem. In 1987, Audi re- victims of the Oklahoma crash. He the auto manufacturers lag behind NHTSA defects office. Further, called 81,000 Audi 5000s from the says it’s frustrating that the agency those in other industries whose the agency has a history of dismiss- (Cont. on p. 3) The Safety Record Page 3 Sudden Unintended Acceleration Redux: The Unresolved Issue (Cont. from p. 2) simple mechanical failures of the related to . Two and Sables; 1997 Aerostars; 2001 throttle cable or floor mat interfer- juries have held Ford responsible Ford Escapes, 2000 and 2001 Ex- 1986 and 1987 model years, for ence. Under these conditions, a sig- for a deadly design flaw in the plorers; 2001 Explorer Sports, 2001 worn idle stabilizer units. As Audi nificant increase in the driver's ability cruise control systems of millions Mazda Tributes, 2001 and 2002 explained to its customers: “The to stop the vehicle was also noted. of Ford vehicles, but the auto- Mazda MVPs. idle stabilizer has the purpose of However, the general spin was that maker has only recalled a frac- maintaining uniform engine idle NHTSA could not find any vehicle tion of the affected vehicles, In July 2005, NHTSA’s Office of speed by regulating air flow under defects causing SUA. The condition, leaving motorists vulnerable to Defects Investigations opened a different operating conditions, such the agency concluded was the result episodes of sudden acceleration. preliminary probe into stuck throt- as variations in engine temperature, of driver error, although the agency tle complaints on 2002 Explorers and on/off cycling of the air condi- noted that it could be induced by In March 1999, Ford announced and Mountaineers. Ford said that it tioner or power assist pump. Exces- poor vehicle design (i.e., brake, ac- that it had found a manufacturing had identified a faulty wire in the sive idle stabilizer wear causes celerator pedal placement and offset). defect with the cruise control accelerator cable, but had remedied engine idle fluctuations which in- The study recommended the installa- cable and recalled 898,739 Ex- the problem by changing the wire crease with the usage of the car. If tion of automatic shift-locks (ASL), plorers, Rangers, Mustangs, design. ODI closed the investiga- a worn unit is not replaced in a which require the driver to depress Mountaineers and some F-series tion without further action in No- timely fashion, the engine idle the brake pedal before the vehicle can trucks in model years ranging vember 2005. could ultimately see-saw so se- be shifted out of Park to prevent the from 1997 to 1999, with certain verely that it may surprise a driver driver from depressing the accelera- build dates. But internal docu- The Jeep Cherokee was another who is not acquainted with the tor instead of the brake. ments indicated that as far back SUA stand-out in the 1990s. In vehicle’s condition and fails to as the design process, speed con- 1990, Chrysler recalled 1989 and apply the brake. Under these cir- Dr. Antony Anderson, an electrical trol engineers knew cable con- 1990 model 6-cylinder Cherokees cumstances, there is a risk of a engineering consultant in the UK tamination could result in the to replace a throttle position sensor collision in a confined space with who has examined numerous SUA throttle being held open by the that was causing “intermittent high the possibility of injury.” (In oth- crashes, says that NHTSA’s defini- stuck actuator cable, and charac- idle” after the engine was started. ers words, dear driver, it’s still your tive research report is neither defini- terized that possibility as a severe In 1992, it issued several technical fault.) tive nor research. The agency based failure. Engineers also predicted service bulletins to repair various its report on nine underlying assump- that the condition was unlikely to parts in Cherokees and Grand Audi received much of the atten- tions, but did not provide the basis occur. But thousands of com- Cherokees. The primary symptom tion, due in part to victims, who for those assumptions. The agency plaints from consumers about was termed vehicle “bucking” or organized and advocated very ef- defined sudden unintended accelera- stuck and sudden accel- “surging.” Nonetheless, sudden fectively for themselves. NHTSA tion as only instances where the vehi- erations, and even the experi- acceleration complaints involving also received a significant number cle lurches suddenly forward or in ences of one of its own execu- the Jeep Cherokee and Grand of complaints in the 1980s alleging reverse from a standstill. This auto- tives have proven otherwise. Cherokee were far above their clos- SUA in Nissan 280/300ZX and matically discounted many other est peer vehicle. The problem was Maxima, Acura Legend, Honda situations in which a vehicle’s throt- The defect was the actuator cable so widespread that the International Accord, and various Ford, GM and tle is wide open in direct contradic- design of Ford’s Next Generation Carwash Association issued an Mercedes models. NHTSA opened tion to the driver’s demands, be it at Speed Control, which first ap- alert to its employees about the a number of defect investigations full speed, a slow speed or in a cruise peared in 1991 models and, by vehicle’s tendency to lurch forward into SUA, and closed many of them control mode. Further, he says, the 1995, was installed in all of the while exiting the car wash without finding a defect trend. systems that NHTSA examined in the automaker’s passenger vehicles, (electromagnetic interference was late 1980s bear no resemblance to SUVs and light trucks with cruise thought by some experts to play a But some NHTSA investigations fully electronic throttle systems of control. As Ford engineers noted role). In 1996, brake-to-shift inter- did prod manufacturers into initiat- today. in their Failure Mode and Effects locks became standard on the Jeep ing recalls. For example, Nissan Analysis, over time, the speed Cherokee. In 1997, as Primetime recalled 1979-1987 280/300ZXs to “It’s a travesty,” Anderson said. control actuator cable can be- Live was preparing to air a story retrofit brake-shift interlocks. Other “That report has no relevance what- come contaminated with dirt, about SUA, and as the Center for recalls have involved the replace- soever, but manufacturers have shel- grease or water where it enters Auto Safety was petitioning ment or modification of mechanical tered themselves behind it for years.” the sheath, or “adjuster body” NHTSA to investigate, Chrysler and electronic components that and bind in the open position, announced that it would retrofit cause the throttle to stick or open Nonetheless, the 1989 report and the prohibiting the driver from clos- pre-1996 vehicles with a brake-to- unintentionally. Some of these significant numbers of reported SUA ing the throttle and decreasing shift interlock. components are related to the vehi- incidents did prompt manufacturers speed. cles' cruise control. to adopt shift-interlocks in their vehi- Floor Mats of Death cles in the late 1980s. Since 1999, Ford has recalled In 1989 NHTSA published “An numerous makes and models as Unsecured floor mats have often Examination of Sudden Accelera- The 1990: Cruise Control and far back as the 1991 model year been suspected of, or have taken tion.” This report was intended to Throttles for sticky throttle problems at- the blame for, sudden unintended end all debates on SUA. Its pri- tributed to a variety of causes, acceleration. Since 1968, the mary conclusion was that only the In the 1990s, SUA problems related including: 2000 Focus; 1998 agency has launched nine separate driver’s foot or the cruise control to cruise control and other throttle Contour; 1999-2000 F-Series probes of various levels of serious- could move the throttle to the wide- malfunctions began to surface. Ford Super Duty; 1998 Mercury Mys- ness. Manufacturers have initiated open position. The study also Motor Company has been a standout tique; 2002 Focus SVT (Cont. on p. 4) noted that SUA could be caused by among its peers in SUA problems Hatchbacks; 1991—1995 Taurus Page 4 Volume 6, Issue 3 Sudden Unintended Acceleration Redux: The Unresolved Issue

(Cont. from p. 3) down), and failure to use retention resulting in 24 crashes and four ability of car electrics to intermit- devices.” injuries. tent contacts.” 19 floor mat recalls, a handful of which presaged the closing of an Today’s Unintended Accelera- Manufacturers may deny SUA And in denying that this problem investigation. tion: Can This Many Drivers be exists, NHTSA may declare that it even occurs, manufacturers have Confused? isn’t worth its time to thoroughly foregone countermeasures alto- One of the most recent emanated investigate these incidents, but gether, Anderson said. from an Engineering Analysis of In January 2008, the agency consumers continue to lodge com- Toyota Lexus vehicles. Drivers weighed a formal investigation into plaints about sudden unintended “The problem really is: these sys- reported that vehicles continued SUA in Toyota Tacomas, and it acceleration – and they can’t all be tems are designed so if they do fail travelling full throttle despite at- demonstrates how little has little old ladies in the first stages of there is nothing the driver can do tempts to stop the vehicle. Some changed since 1985 and the Audi dementia. The complaints data about it.” reacted by applying the brake pedal 5000. This time, the petitioner was show clearly that some manufactur- multiple times, depleting the brak- William Kronholm, a journalist ers and some vehicles are outliers, ing system's vacuum-based power from Helena, Montana who alleged with significantly more complaints assist and overheating the brakes, that his 2006 Toyota Tacoma sud- than their peers. In the last 10 which further diminished the denly accelerated twice in as many years, the agency has collected brakes’ effectiveness. Others at- hours. According to his defect in- some 24,000 consumer complaints tempted to turn the vehicle off by vestigation request, in attempting to (source: www.VSIRC.com). When More on SUA: depressing the engine control but- learn more, Kronholm went rifling these complaints are sorted by ton, unaware that the button had to through NHTSA’s complaints data- manufacturer and vehicle and Sudden Unintended be depressed for three seconds to base and found that consumers had charted, the vast majority of auto- Acceleration Complaints: stop the engine when the vehicle is made 32 such complaints against makers flat-line at the bottom. The 1999 to Present, by Make in motion. Toyota and the agency Tacoma pick-up trucks, while other trendline of complaints for four concluded that unsecured all- similar vehicles had only one or no manufacturers—Ford, GM, Chrys- weather floor mats could entrap the complaints in a comparable two- ler, and Toyota, however, float NHTSA Investigations gas pedal. year period. above their peers with occasional into Sudden Unintended spikes, leading one to conclude that Acceleration In a September 26, 2007 letter to Toyota responded by maintaining either these manufacturers have a NHTSA, Toyota indicated that they that there was nothing wrong with problem, or the most confused 1999-Present would conduct a safety recall to the Tacoma and that the spate of consumers gravitate to their vehi- replace the all weather mat with a complaints had been ginned up by cles. Recalls Involving Sudden redesigned mat. According to Toy- press attention and Internet viru- Unintended Acceleration ota, the new mat design would lence—a claim right out of the In the 2003 book Sudden Accelera- reduce the potential for mat inter- Audi playbook: tion, the authors offer many scenar- 1999-Present ference with the throttle pedal. ios in which an automotive elec- “The Tacoma has been the subject tronic system or the electrical con- In 2008, the agency opened and of extensive media coverage re- tacts may fail intermittently and closed within four months a Pre- lated to the possibility of sudden defy easy detection: Physical traces Source: www.VSIRC.com liminary Evaluation into Weather acceleration. In addition, there has on a microscopic scale due to “a Tech floor mats after four com- been a high level of Internet activ- poor connector contact, a dry joint, plaints of pedal interference in four ity going as far back as early 2007, or a cracked PCB track that be- different vehicles: Hyundai Azera including reports by members of haves as a good connection for and the Toyota Avalon, Camry and Tacoma user groups detailing con- 99.999 percent of the time” could 4Runner. In closing the investiga- versations with ODI staff and pro- be overlooked. tion, without a defect finding, The viding ODI contact information. agency generally conceded the Such exposure tends to generate Anderson notes: “A control system obvious: “various vehicle, mat and consumer interest and complaints. adopting a different, anomalous use factors can contribute to the Thus, the petitioner's assertion that and perhaps dangerous state once potential for floor mat interference the Tacoma stands out from its in a blue moon when there is an with accelerator pedal travel. Vehi- peers based on a relatively high intermittent fault. The moment the cle factors can include pedal and number of complaints in the fault disappears, the control system floor pan design. Mat factors can NHTSA database is not a valid goes back to its normal state. It is include thickness and geometry, argument, since the other vehicles hardly surprising that subsequent particularly affecting the orienta- listed by the petitioner have simply testing fails to reveal any fault. tion of the leading edge in the vi- not had the same media and Inter- There are plenty of examples of cinity of the accelerator pedal. Use net exposure.” physical systems having normal factors that have been observed in and faulty states and a small interference incidents include fail- Two months later, NHTSA denied change may move the system from ure to remove original floor mats the defect petition, saying – in ef- one state to the other. The manu- when installing new mats (i.e., fect- that they wouldn’t be able to facturers know this perfectly well. "stacked" floor mats), installing devote the resources to finding out Their prescription of "wiggle tests" passenger side mats on the driver's why Toyota Tacomas were plagued on connecting cables to identify side, installing mats in an improper by sudden unintended acceleration poor connections and make them orientation (e.g., backwards, upside – despite 271 reported instances, better is indicative of the vulner- The Safety Record Page 5 NHTSA’s Rulemaking Priorities to Include Ejection Mitigation and Seat Belts on Motorcoaches WASHINGTON, D.C.—NHTSA’s interlock and require power win- determines “that no additional safety dures for positioning the Hybrid regulatory dance card is mighty full dows to have an automatic reverse standards are reasonable, practicable, III 10-year-old child dummy and for the next five months, with a feature. The bill was named after 2- and appropriate.” the HIII 6-year-old child dummy clutch of substantive rulemakings year-old Cameron Gulbransen, who in booster seats when the dum- that includes developing a perform- was killed when his father, a pedia- The brake to shift interlock (BTSI) is mies are used in the FMVSS 213 ance standard for full and partial trician from Long Island, inadver- a safer regulatory bet. In 2006, the compliance tests. ejection mitigation, restraints on tently backed over him, because the major automakers who comprise the motor coaches, boosters for older blindzone behind his SUV made Association of International Automo- Safety for the Rest of Us children and a rearward visibility the toddler impossible to see. bile Manufacturers, Inc. attempted to standard – nearly all mandated by head off legislation by announcing The Safe, Accountable, Flexible, Congress. In March, NHTSA published an that its members had voluntarily Efficient Transportation Equity Advanced Notice of Proposed committed to installing brake-to-shift Act: A Legacy for Users The agency’s official shortlist, Rulemaking on establishing a rear- interlocks by 2010. Safety advocates, (SAFETEA-LU) Act required the published in the Federal Register ward view standard in March. It however, were disturbed by the loop- agency to publish a final rule on July 1, contains several signifi- did not outline a possible perform- holes in the agreement. For one, establishing performance stan- cant areas for immediate rulemak- ance standard, but presented the manufacturers with new entries into dards to reduce complete and ing ranging from occupant protec- research it had done to date and the market, from China for example, partial ejections of vehicle occu- tion to regulations that would re- sought answers to 52 different would have no obligation to include a pants from outboard seating posi- duce deaths and injuries to children questions in seven different areas, BTSI. Further, the agreement did not tions by October 1, 2009. The in and around vehicles. In the fu- including the scope of the problem, require the brake-to-shift interlock to first phase of the agency’s effort ture, the agency will turn its atten- technologies for improving rear work regardless of the key position, was amending FMVSS 214 Side tion toward possible rulemakings visibility, effectiveness, driver meaning that the BTSI might not Impact in September 2007, to for crash avoidance technology, behavior, options for measuring work when the key is in the acces- include a side-impact pole test. such as lane departure warning rear visibility and countermeasure sory position. Finally, advocates This rule had the effect of requir- systems and automatic braking in performance. It expects to publish criticized the agreement because ing side air curtains, at least for advance of an impending crash. an NPRM this year, with a Final consumers wouldn’t know which front seat passengers. According Rule in 2011. vehicles did not have a BTSI. An to an earlier plan, the second Of course, making the list, which NPRM is slated to be published this phase is to establish occupant covers this year through 2011, NHTSA also expects to publish a year. containment performance re- doesn’t mean NHTSA will actually Notice of Proposed Rulemaking to quirements, which included the make it happen, but we’ve summa- consider requiring power windows The fourth rulemaking that could development of a test methodol- rized the highlights below: to automatically reverse direction improve for chil- ogy to evaluate the performance when, upon closing, the window dren is a scheduled Supplemental of ejection mitigation systems, Rules for Children detects an obstruction, to prevent Notice of Proposed Rulemaking to including side curtain and children and others from being add requirements to FMVSS 213 improved glazing. The third Of the rulemakings regarding chil- trapped, injured, or killed. Under Child Restraint Systems for booster phase is to establish performance dren, three were required by the the language of the law, the agency seats for older children, and add a 10- requirements for rollover sensors, Cameron Gulbransen Kids and would have 18 months to initiate year-old crash test dummy to the to ensure that the air bags will Cars Safety Act of 2007. This the process and 30 months to estab- regulation. The agency has been deploy in a rollover crash. The measure, adopted after five years of lish the standard. But, the provision working on this for four years. The agency describes the rule thus: intense lobbying, compels NHTSA allows the Secretary of Transporta- most recent rulemaking was in Janu- “This proposed standard would to develop a rearward visibility tion to decline to make a rule re- ary 2008, when NHTSA published an reduce the partial and total standard, mandate a brake-to-shift- quiring the feature, if the secretary SNPRM that proposed seating proce- (Cont. on p. 6)

U.S., EU Have Opposing Views on Daytime Running Lights WASHINGTON, D.C. – The Na- GM had petitioned the agency in and motorcycle crashes. This study passenger cars and daytime sin- tional Highway Traffic Safety Ad- December 2001, based on two also found a significant reduction gle-vehicle crashes by 9.4 per- ministration has rebuffed a nearly studies showing that daytime run- in crashes for vehicles equipped cent for light trucks. eight-year-old petition by General ning lights significantly reduced with DLRs: passenger cars saw a Motors to require daytime running multiple vehicle and vehicle-to- 12.35 percent decrease in head-on “These results cast doubt on the lights on all passenger vehicles, pedestrian crashes. The 2000 study multiple vehicle crashes and a 9 validity of the GM study because saying that there is no credible showed a 5 percent decrease in the percent decrease in rural daytime we do not believe these crash statistical proof that the devices former category and a 9 percent multivehicle crashes. types are plausibly affected by significantly improve safety. decrease in the latter. The second DRL installation. The authors study, which GM commissioned But NHTSA criticized the statisti- claim these numbers serve as “While DRLs may be beneficial for from Exponent in 2008, analyzed cal methods used in both studies, useful control groups and bench- certain scenarios, the agency has data regarding GM, Saab, Toyota, saying one study used inappropri- marks for comparison. The been unable to document overall Subaru, Volkswagen and Volvo ate parameters to create the sample. agency respectfully disagrees, safety benefits due to DRL installa- vehicles and 1996-2005 crash sta- It dismissed some of the results of and believes this may demon- tion which could serve as a basis tistics from 18 states to examine the other as pure bull – such as a strate the lack of control for for mandating them,” the agency the impact of DRLs on head-on, claim in the Exponent study that changes that may have occurred wrote in its denial. rural area, highway, rain/fog, angle, DRLs would reduce night-time during the study period.” urban area, sideswipe, pedestrian, fatal crashes by 11.4 percent for (Cont. on p. 6) Page 6 Volume 6, Issue 3 NHTSA’s Rulemaking Priorities to Include Ejection Mitigation and Seat Belts on Motorcoaches (Cont. from p. 5) tional Transportation Safety brake assist technology is already year. The next agency decision, Board’s list for at least 11 years, offered on some Honda, Mercedes- scheduled for 2011, will be ejection of vehicle occupants through but the agency has shown little Benz, Volvo, Toyota and Ford vehi- whether to require them. side windows in crashes, particularly interest beyond gathering the cles. These systems use radar sensors rollover crashes.” There were few players for conferences in which to monitor the traffic in front of the Further into the future, NTSA is hints on how that would be accom- industry representatives defended vehicle, and if the distance between contemplating a technologically plished. the status quo. At one such event, the vehicle and the one in front of it advanced automotive environ- in 2002, then-Associate Adminis- is too small, the driver receives a ment, in which vehicles commu- After decades of buying the Motor trator for Safety Standards warning and the brakes may be nicate with one another to avoid Coach industry’s rap at retail, the Stephen Kratzke assured the primed for maximum power, or auto- collisions. Some prototype vehi- agency is about to get serious about industry that the agency wouldn’t matically applied. Other systems cle-to-vehicle communications motor coach safety. Bus manufactur- promulgate any regulations – tighten the seat belts and activate the systems send out speed, GPS ers have fended off regulations for “just to do something.” Proposals airbags, as well. location and braking information decades, arguing that occupants were would be based on “solid data,” for crash avoidance, speed man- adequately protected from crash he promised. NHTSA has already developed a agement, intersection collision forces by compartmentalization – the performance test for New Car As- avoidance and traffic congestion. space around them enclosed by the In the Future, We Just Won’t sessment Program that will debut for These systems are in develop- seat backs behind and in front of Crash the 2011 model year. The agency ment among the major manufac- them and the side structure. The com- Looking ahead, NHTSA sees expects to decide if it will require turers. Vehicle-to-vehicle sys- partment, however, was open on crash avoidance as the next fron- automatic crash-imminent braking. tems only work if a critical mass three sides. The large picture win- tier. It intends to focus its re- of the fleet is so-equipped. Last dows tended to fail in a crash, leading search on developing perform- Similarly, the agency plans to estab- year, the European Union laid the to fatal ejections. In rollovers, occu- ance criteria and tests for systems lish performance criteria and tests for groundwork of a widespread pants and their possessions are tossed that automatically apply the lane departure warning systems, vehicle-to-vehicle communica- right out of their compartments and brakes when the vehicle senses which have also debuted on Toyota, tions landscape by reserving an sustain injuries from contact with the an impending crash, lane depar- GM, Nissan, Honda and Mercedes EU-wide frequency band for roof and other occupants. Perform- ture warning systems and vehicle vehicles. Again, NHTSA has already automotive use. NHTSA fore- ance standards for motor coaches in to vehicle communications sys- developed a performance test for the casts that its next agency decision various crashes has been on the Na- tems. The pre-crash warning and NCAP to apply to the 2011 model will be in 2013.

U.S., EU Have Opposing Views on Daytime Running Lights (Cont. from p. 5) markedly different result, with daytime running lights. IIHS study in 2002 of crashes in Depending on how the safety bene- the DRLs producing slight, but nine states found a 3 percent de- fit was predicted, NHTSA’s own significantly insignificant, in- NHTSA’s study results are also in crease in daytime crashes for DRL- statistical studies, undertaken in creases in crashes in vehicles so- contradiction to a wealth of other equipped vehicles. 2000, 2004 and 2008, found vary- equipped. The one positive, but studies, conducted in the U.S. and ing degrees of safety benefits. In its notable exception, to this abroad, showing a measureable and “I think the research is pretty rejection of the GM petition, the counter-intuitive result was the significant safety benefit for daytime clear,” says IIHS spokesman Russ agency said that it was now basing effect on crashes involving mo- running lights. Some 14 studies, Rader. “We didn’t submit a formal its conclusions on analyses using a torcycles. In this case, DRLs beginning in 1972, have found crash comment, but we did support mak- method called the ratio of odds reduced daytime opposite direc- reductions ranging from 29 percent ing them mandatory. The benefit is ratio. (This was the statistical tool tion fatal crashes of a passenger to 3 percent, depending on the type small, but it is there.” used in the much-criticized Expo- vehicle with a motorcycle by 26 of crash. For example, a Norwegian nent study.) In the 2004 NHTSA percent. study found a 10 percent reduction Nonetheless, this is the second time study, for example, when research- in multiple-vehicle daytime crashes. the agency has turned down a re- ers used generalized statistical The agency’s stance is surprising Two Danish studies, conducted after quest to make DRLs mandatory. odds, “ a conventional statistical considering that the European the nation began requiring them, The IIHS petitioned NHTSA for technique,” they found that daytime Union is poised to make DRLs found smaller, but similar decreases their mandatory use in 1985. The running lights reduced opposite mandatory on all new vehicles by in day-time crashes and found left- agency granted the petition, then direction daytime fatal crashes by 5 2011. The EU’s rationale is also turn crashes reduced by more than a abruptly terminated the rulemaking percent, reduced opposite direc- rooted in the results of studies, third. Transport Canada also did in 1988, saying that the matter tion/angle daytime non-fatal showing that these lights can research on this question, comparing wasn’t “a national safety issue,” crashes by 5 percent; reduced non- reduce day-time crashes by up to 1990 model year vehicles equipped and that automakers opposed it. motorists, pedestrians and cyclists, 12 percent for passenger vehicles with daytime running lights to 1989 Then, in 1990, GM decided that it daytime fatalities in single-vehicle and 10 percent for motorcycles. model year vehicles without them, was for the installation of DLRs. crashes by 12 percent; and reduced Sweden was the first country to and found a reduction of 11 percent. Many state traffic laws prohibited daytime opposite direction fatal mandate daytime running lights the use of headlights during day- crashes of a passenger vehicle with in 1977, because of the country’s The Insurance Institute for Highway light hours, creating a formidable a motorcycle by 23 percent. low light levels. The regulation Safety has been studying the effect stumbling block. The automaker then spread to the other Scandi- of DRLs since 1985. The first study convinced NHTSA to override However, at the insistence of the navian countries. According to a showed that commercial fleet pas- state laws and harmonize its regula- study’s peer reviewers, the agency 2004 EU report, 11 nations, in- senger vehicles modified with DLRs tions with Canada, which required ran the numbers using the odds cluding Canada and the sunnier experienced 7 percent fewer daytime them, with a new rule. Established ratio technique. This produced a locales of Israel and Italy require multiple-vehicle crashes. A second (Cont. on p. 7) (Cont. from p. 6) The Safety Record Page 7

Judge Rejects Malibu; Awards $21 U.S., EU Have Opposing Views on Daytime Running Lights Million in Roof Crush Case agency resisted, fearing heights to avoid direct mirror in 1993, the amendment to that the lights would visu- glare from the rear. After GM LOS ANGELES, CA – A Superior Court FMVSS 108, permitting the ally obscure the turn sig- installed the DLRs on all of their judge has dismissed Jaguar Land Rover’s voluntary application of day- nals and create unnecessary makes, including Saab and Sat- claim that the paralyzing injuries sustained by time running lights, superseded glare. In the Final Rule, the urn, the agency began to get a Simi Valley man were caused by his diving those state laws. agency decided to reach a complaints from motorists about into the roof during a rollover, and awarded compromise, allowing a the distracting glare. In 1998, the him $21.1 million in damages. The debate then turned to the 7000 cd upper limit on agency published an amendment, limits on the intensity of the upper beam , as long as cutting the permitted intensity by Sukhasagar Pannu, 53, a former member of the daytime beams. GM wanted a they were mounted below more than half, to an upper limit Hong Kong national field hockey team, was 7000 cd limit, in keeping with the side mirror and inside of 3,000 cd. rendered a quadriplegic in the 2003 crash. Canadian regulations. The the mirror mounting Pannu was sideswiped by a 16-year-old driver on the 118 freeway, and lost control as he attempted to avoid a collision. Pannu’s Land Rover Discovery vehicle rolled several times. NHTSA Unveils Tire Fuel Efficiency Consumer Information Proposal As a result of a spinal cord injury, Pannu per- WASHINGTON, D.C. – The day that gave the tire industry the shakes has come. National manently lost control of his arms and legs. He Highway Traffic Safety Administration is now seeking comment on its tire fuel efficiency, now lives with his parents and three children, maintenance and safety consumer education program. who provide for his care. The consumer program is but one aspect of the agency’s much larger tire fuel efficiency pro- L.A. Superior Court Judge Robert H. O’Brien gram, which was included as an amendment in the Energy Bill of 2007. It requires NHTSA to issued the verdict on May 18 after a bench establish through the rulemaking process a tire fuel efficiency rating system and to test specifi- trial. Garo Mardirossian, the L.A. attorney cations to assess tire fuel efficiency. Besides the tire maintenance consumer education cam- who represented Pannu, said that both sides paign, the public outreach effort includes a requirement to provide tire fuel efficiency informa- opted for a bench trial after receiving rulings tion to consumers, via the internet and tire stores. on various motions that each side perceived as favorable. Several months ago – before the agency posted this notice – tire retail industry leaders fired off hysterical editorials wringing their metaphorical hands over the prospect of a group outside of “This case had very sympathetic plaintiff and a the tire industry being tapped to administer the program. Roy Littlefield, the Tire Industry As- pretty good fact pattern. (Pannu) was fault- sociation’s executive vice president, was specifically rattled by the prospect of trial lawyers and free,” Madirossian said. “Still, we were very, “so-called safety experts” educating consumers. Jim Smith of Tire Review, seconded those very concerned until the verdict came in that fears and named names: “Sean ‘Old Tires Are Death’ Kane.” we would be second-guessed all over the country.” The 148-page document outlining the contents and the strategy of such a program, however, do not hint of any sinister plots. The agency envisions a national tire maintenance consumer edu- Land Rover whipped out the tired –but-lately- cation program that focuses on “tire inflation pressure, alignment, rotation, and treadwear to not-so-true defense that collapsing vehicle maximize fuel efficiency, safety, and durability of replacement tires.” roofs don’t kill people – people kill themselves when they fling their heads into the roofs. This In January 2009, the agency began test-marketing its informational materials and potential tire theory was lent credence by GM tests in 1985. labeling. The goals of this consumer research were to understand reactions to consumer expec- O’Brien found that the rollover – and Pannu’s tations for a tire fuel efficiency rating program; get feedback related on its effectiveness; and injuries – were more likely the result on a gauge consumer preferences of tire label designs. vehicle with a high center of gravity and a weak roof. In his written opinion, the judge Since 2005, NHTSA has been issuing public service announcements about the importance of dismissed the diving defense: tire maintenance and in that year, also published a Final Rule mandating tire pressure monitor- ing systems (TPMS) for all new automobiles by the 2008 model year. “TPMS, however, is no “Finally, the almost complete roof crush of substitution for proper tire maintenance. Despite the fact that all new vehicles are equipped plaintiff's vehicle occurring in such split sec- with a TPMS, NHTSA believes that proper tire maintenance is still the most important infor- ond timing leads a reasonable person to imme- mation to convey to consumers. Smaller reductions in inflation pressure than measured by the diately assume that the roof came crushing TPMS can affect not only fuel efficiency, but also tire lifespan and vehicle handling,” the down on plaintiff's head as it rolled over, caus- agency said. ing his head to flex forward and breaking his neck. The hard evidence compels the conclu- NHTSA says it plans to step up its game “using innovative methods of dissemination” on the sion that the roof crushed downward such that internet, at retail locations, and through “interactive mediums.” Absent from any mention in the no driver occupant could survive.” lists of a tire’s safety characteristics is age. This is not surprising, given the program’s origins in a fuel efficiency bill. But it is, nonetheless, an omission – if the goal is to promote tire safety. “He was a very, very bright judge,” said Madi- As the agency’s own research has shown, tread depth is not measure of robustness, but tire age rossian. does matter, particularly if it is used in hot climates, where the effects of tire age are exacer- bated. As for the outside groups tapped to run the program, the agency mentions that it will use The Indian auto manufacturer Tata Motors “existing partners and identify new ones” to deliver the message. They include “any interested acquired Jaguar Land Rover from Ford Motor tire retailers, state or local governments as well as manufacturers who share NHTSA’s goal of Company in 2008. Warren Platt, the defense promoting the importance of proper tire maintenance.” Trial lawyers and Sean Kane must have attorney who represented Jaguar Land Rover been inadvertently dropped off the list. said that company planned to appeal. Safety Research & Strategies, Inc. Volume 6, Issue 3 June / July 2009

Published by: Safety Research & Strategies 340 Anawan St. / Suite 200 Rehoboth, MA 02769 www.safetyresearch.net 508-252-2333

Editor: Sean Kane Contributors: Ellen Liberman Tony Di Viesti Melanie MacDonald Lauri Stevenson Ann Boudreau Marilyn Charest Felix Click Sharon Mitchell The Safety Record is published bimonthly. Annual Subscription: $125 International: $150 Copyright © 2009 Safety Research & Strategies, Inc. ISSN 1554-1304

Chrysler, GM Bankruptcies Concluded, Defect Victims Cheated GM / Chrysler Bankruptcies: What’s In What’s Out (Cont. from p. 1) “Apparently the new GM is doing that -ment, in which GM agreed to ac- by telling the old customers who have The terms of the Chrysler and GM bankruptcies have created arbi- cept liability for any future claims been harmed by a GM defect to drop trary and artificial classes of claimants. Here are the current pa- against vehicles built under its old dead,” said Rosemary Shahan of Con- rameters for liability: ownership. Current and pending sumers for Auto Reliability and Safety. claims, however, have been wiped Chrysler: Date of Bankruptcy Exit: June 10 off the table. Best feet forward aside, consumer and auto safety advocates are not done What’s Out: The new Chrysler has no liability for any vehicles In a mere 40 days, GM emerged demanding that the new companies do built by the old Chrysler. That means: the liability for all current, from bankruptcy with fewer something to compensate victims of pending and future claims of any Chrysler vehicle built before the brands, fewer workers and a whole defects. Indiana Congressman Andre automaker exited bankruptcy belong to the old company. lot of taxpayer cash – $50 billion. Carson has filed the Jeremy Warriner (GM is keeping its Chevrolet, Consumer Protection Act after Jeremy Recovery of Unsecured Claims: Projected to be zero (or at most ½ Cadillac, Buick and GMC brands Warriner, who lost both legs and suf- cent/dollar). and selling or shuttering Hummer, fered severe burns in a vehicle fire he Saturn, Saab and Pontiac.) As of alleges was sparked by a faulty brake General Motors: Date of Bankruptcy Exit: July 10 July 10, the majority owners of fluid container on his 2005 Jeep Wran- General Motors are the taxpayers, gler. The bill would require the newly- What’s In: The new GM agreed to assume liability for vehicles with a 61 percent stake; and the restructured GM and Chrysler to carry built by the old company, if the incident occurs after July 10, when United Auto Workers health care liability insurance and force the car- GM exited bankruptcy. trust, which owns 17 percent; the makers to cover claims made against Canadian government, which owns them for any defective products pro- What’s Out: The old GM retains the liability for all current and 11.7 percent, with the remainder duced by their predecessor company. A pending claims. If the incident occurred before July 10th, it is con- going to bondholders of the old consortium of attorneys and consumer sidered a pending claim, even if it has not yet been filed. company. groups are working on other avenues of redress. Recovery of Unsecured Claims: Unsecured claims in GM are pre- CEO Fritz Henderson told the As- dicted to receive between 10-20 cents on the dollar, several years sociated Press that the revamped For more background on the GM from now. This is based on projections; there is no guarantee. Cost automaker will be “faster and more and Chrysler bankruptcies: of administration claims will likely be paid in full for anyone hav- responsive to customers than the www.safetyresearch.net/chrysler- ing an accident in the five weeks in between when GM entered and old one.” gm-bankruptcy/ exited bankruptcy, once the old company is liquidated.