Lead-off Toyota case selected as group demands NHTSA records

A California judge on Thursday selected the first bellwether case against Toyota in consolidated state litigation over the automaker's sudden, unintended acceleration problems.

Amanda Bronstad
January 26, 2012
A California judge on Thursday selected the first bellwether case against Toyota in consolidated state litigation over the automaker's sudden, unintended acceleration problems.

Meanwhile, a safety research group has filed a Freedom of Information Act complaint against the U.S. National Highway Traffic Safety Administration seeking documents and other data associated with a 2003 Prius that allegedly accelerated out of control three times while agency officials were present.

In California, Los Angeles County Superior Court Judge Anthony Mohr, who is overseeing more than100 state court cases coordinated into a single proceeding, tentatively picked as the first bellwether a case brought by plaintiff Peter Uno. He alleged that his wife, Noriko Uno, died after her 2006 Camry accelerated up to 100 miles per hour, forcing her to steer onto a median and into a telephone pole. She died on Aug. 28, 2009, in Upland, Calif.

Uno is represented by Garo Mardirossian of Mardirossian & Associates in Los Angeles, who is not a member of the plaintiffs' steering committee in the California cases. The committee had selected four other cases as potential bellwethers, and Toyota selected five prospective bellwethers.

Mardirossian, however, had moved for preference so that his lawsuit would go to trial ahead of the other Toyota cases.

In court, Mardirossian argued that his client suffers from depression, headaches and nausea, and must be hooked up to a dialysis machine every other day for four hours at a time. "Every other day, he's close to death," he said. "If you delay this too long, beyond July or August, he won't be able to participate in this trial, even though he's still alive."

"Reading what I've read, I tend to think this case should go to trial," Mohr said. "This is the first trial."

Mohr estimated the Uno trial would last for at least 20 weeks and start as early as Sept. 17, 2012. That would bump the California trial ahead of the Feb. 19, 2013, trial date set in separate federal multidistrict litigation before U.S. District Judge James Selna in Santa Ana, Calif.

In a written statement, Toyota spokeswoman Celeste Migliore praised Mohr's choice.

"While we sympathize with anyone in an accident involving one of our vehicles, we are pleased the initial bellwether will address plaintiffs' central allegation of an unnamed, unproven defect in Toyota vehicles," she wrote. "We remain confident that scientifically reliable and admissible evidence will demonstrate that no defect exists in our electronic throttle control systems."

Mohr ruled that trial in another case, brought by Orange County, Calif., District Attorney Tony Rackauckas, should start at the same time as the Uno case but "run in the background." The district attorney's case, which seeks civil penalties on behalf of California consumers under the state's unfair competition, false advertising and warranty laws, must be tried before a judge, not a jury. The case addresses issues with more than 26 vehicles.

Acknowledging the large scope of discovery, Mohr suggested that since the Uno case involves a Camry, the district attorney could, for example, ask questions of witnesses in the trial during jury breaks that pertain to consumers of that model. As other bellwether cases go to trial, perhaps involving different makes and models, the district attorney's case could continue in the same manner, Mohr said.

Such a plan, he noted, would avoid having duplicative witnesses discussing the same issues in more than one trial.

Toyota's attorneys immediately challenged the idea.

"We should not have the DA case start until we've decided discovery has been completed," said Thomas Nolan, a partner in the Los Angeles office of Skadden, Arps, Slate, Meagher and Flom, who appeared by telephone from Japan.

In a separate development, Safety Research & Strategies Inc., a Rehoboth, Mass., research group often cited in lawsuits against Toyota over sudden acceleration, filed a complaint on Jan. 23 against NHTSA, seeking records about a Prius owned by Joseph McClelland, director of the office of electric reliability in the Federal Energy Regulatory Commission.

During a test drive on May 17, 2011, McClelland's car, which had 280,000 miles on it, accelerated on its own — without interference from the floor mat or a stuck accelerator pedal — while two NHTSA engineers were present, McClelland alleged. The agency concluded months later that there were no sudden acceleration problems with the vehicle.

Safety Research demanded materials associated with that car, including photographs, videos, meeting logs, tests and investigator notes.

Safety Research president Sean Kane said his group has filed about a dozen FOIA requests since Toyota recalled approximately 10 million vehicles in 2010 for defects associated with sudden acceleration, such as stuck accelerator pedals and misplaced floor mats. He said the Prius case was the most "egregious" example of NHTSA failing to investigate whether other problems, such as faulty electronics, might have caused sudden acceleration.

"Their claims are they cannot find anything associated with sudden acceleration except for mechanical interference or driver error," he said of NHTSA. "What was in the materials that are in the public domain is something very different."

In an e-mailed statement, NHTSA confirmed that two of its investigators inspected the vehicle but said they "did not find any evidence linking the car to known causes of unintended acceleration cases. NHTSA concluded that the speed of the vehicle could easily be controlled by the brakes. In contrast to other UA complaints, the vehicle displayed ample warning lights for the driver indicating the car had encountered problems."

Migliore said that although Toyota officials have not seen the vehicle, they believe it has been "severely damaged or deemed a total loss by the insurance company and is not in substantially the same condition as when Toyota originally distributed it."

She added: "Mr. Kane is a paid consultant for attorneys suing Toyota who has made repeated, false allegations about our Toyota vehicles."

In a Feb. 8, 2011, report on Toyota's recalls, NHTSA, in conjunction with the National Aeronautics & Space Administration, concluded that sudden acceleration was caused by mechanical problems but found no evidence that electronics played a role. In response to the Safety Research complaint, NHTSA's public affairs director, Lynda Tran, reiterated NHTSA findings.

"We have found no evidence of any electronic cause of sudden, high-speed unintended acceleration in Toyota vehicles or any others," she wrote. "Last week, a report by an independent panel appointed by the National Academy of Sciences further corroborated the findings of the NASA study and NHTSA's conclusion of its Toyota investigations."

On Jan. 18, the National Academy of Sciences announced the report, which backed NHTSA's investigation but also found that the agency needed to improve its expertise of electronic control systems to provide safety oversight of today's cars.

In response, NHTSA issued a prepared response: "NHTSA has already taken steps to strengthen its expertise in electronic control systems while expanding research in this area — and the agency has considerable experience dealing with vehicle electronics issues in its research, rulemaking, and enforcement programs. But, NHTSA will continue to evaluate and improve every aspect of its work to keep the driving public safe, including research to assess potential safety concerns and help ensure the reliability of electronic control systems in vehicles."

Contact Amanda Bronstad at abronstad@alm.com