Mike Nelson Returns: Unpacking Auto Safety Challenges

Introduction and Welcome

Anthony: You are listening to There Auto Be A Law. The Center for Auto Safety Podcast with executive director Michael Brooks, chief engineer Fred Perkins, and hosted by me Anthony Cimino. For over 50 years, the Center for Auto Safety has worked to make cars safer.

Hey everybody. Welcome to a new episode. It’s August 20th, 2025.

Guest Introduction: Mike Nelson

Anthony: Today we are joined by Mike Nelson from Nelson Law. He returns to the show. Hi Mike. Hi there. Glad to have you back.

Ford’s Recalls and Vehicle Safety

Anthony: I would love today to talk about how Ford re received their 100th recall of the year. Is that right? 100 recalls.

Michael: They’re up to 105 actually.

Ah, yay. I think as of yesterday, they put a lot out this week. But yeah, a lot of Ford recalls, some of them, again, are the re recalls of recalls that went bad. And a lot of this, again, is in response to NHTSA’s enforcement efforts on their part.

Anthony: But today we’re not gonna talk about that.

We’ll [00:01:00] save that for another time. Instead, Mike, that we have you here.

The Disconnect in Vehicle Safety

Anthony: We’ve talked in the past and we saw a video, you guys, you posted maybe a couple weeks ago about worthiness in vehicles about how vehicles, they’re much stronger, they’re better to survive crashes but people keep still dying at over 40,000 a year.

So what’s the disconnect? What are we doing wrong?

Mike Nelson: The disconnect is while the cars are getting safer there. Not solving a lot of the problems they need to solve. There’s four contributors to the unsafe environment and one of the, one of the zones that they identify is speed.

I think we really need to look at acceleration as much as speed, but then there’s distraction, there’s impairment, and then there’s weight of vehicles. Interlock brakes will stop you from hitting something. Airbags will protect you when you’re in the cockpit, but you really want to, you [00:02:00] wanna avoid the accident altogether.

That’s really what the 40,000 number is telling us. And we’re still having roughly the same number of accidents, and in fact, we’re having more accidents ’cause more cars on the road. But, we’re still the numbers looks like it’s gonna drop for last year, but not significantly. It’ll be 38,000 or something like that.

Still it begs the question like, how do we have cars and the air, the point I make is this, we got airbags, we’ve got a structural cage in the car. We have automatic emergency braking, we have backup cameras, we have lane keeping assist and adaptive cruise control.

Just fantastic technology when it’s roo used, right? And the manufacturer has a good tool in the field. At the same point, why are we killing so many people still? And some of them are in the car and some of them aren’t in the car. So the book that I, we were talking before the [00:03:00] show, the book I’m writing is going to delve into that.

Humanizing Roadway Fatalities

Mike Nelson: And also part of the thesis of the book is we just think 40,000 lives is the cost of doing business. It’s if you had 40,000 people in a football stadium and somebody, blew the place up, that would be a story for the rest of our lives. And yet we have this many people dying on the road and it barely makes the local news.

I think we need to look at all of it. And I have I have some ideas on that. But then again, the book is aimed at taking that 40,000 number and putting some real names and life stories behind it. This person was a doctor. He he worked in a maternity ward. He, birthed, 3000 babies and gone in the blink of an eye.

Somebody who’s a child, five years old, who knows what that life would look [00:04:00] like. But that family now has a big hole in it. So I’ve been reaching out to some families to see if they’re willing to share the story of their loved one. And almost like at the end of each chapter, there’ll be one or two of these real life stories about what happened when somebody lost their life as a result of a roadway, traffic accident, to really drive home the point that the name of the book I’m working title right now is 40,000 is a real number.

As opposed to the statistic that comes out once a year. It’s not any different than things like homicide rates. We talk in terms of numbers as opposed to, a lot of the particular homicides, but, 40,000, since we’re working on car safety, can’t we make that number dramatically lower?

Especially if we can bring this much technology to the problem.

Anthony: I love that personal, personalized approach to it and really humanizing the whole thing. I think that’s great and that’s been [00:05:00] missing from the discussion. Red tries to bring examples of that all the time and I think, yeah, more of that needs to be done.

Political Pushback on Safety Measures

Michael: And it’s interesting to me that, the kind of the four main points there, speeding or acceleration, you could probably throw aggressive driving types in that distraction impairment and vehicle later. All areas where we see significant pushback from, on the political side, from people who have this sort of, I don’t know, maybe an entitled viewpoint, maybe a libertarian viewpoint, you might call it.

That human that we’re somehow should be allowed to do these sorts of things. We see a lot of pushback on speed technology, getting speed technology installed in vehicles intelligent speed assistance is. Works okay. In some respects, I think we’d like to see something that really put the hammer down on people and made them stick to speed limits.

There’s a lot of pushback against the idea that manufacturers should be installing [00:06:00] speed limiting technology in vehicles. There’s not as quite so much put pushback, I think, politically against, distraction and laws there, but at the same time. Under the covers in our own vehicles, I feel like a lot of people are using their phones and distracting themselves, not admitting to it.

And so there’s some sort of pushback there. And then we’ve even seen, we see a lot of pushback in the area of vehicle weight. People, even AAA advocates, vehicle Choice, right? And people being able to choose whatever vehicle they want, regardless of the potential consequences on the roads and impairment.

We even see people objecting to the idea that there should be alcohol monitoring devices in vehicles that, prevent drunks from driving or prevent drug users from driving. And it’s amazing that, those four areas are probably the main contributors to deaths on our road, and yet we still have political pushback against making improvements in those areas to save lives.

Anthony: Do we have any idea of what, of those four areas is, are they [00:07:00] increasing, decreasing? Is one leading the others? I wonder if there’s a way to approach

Mike Nelson: I’m sure there’s a way to look at it as a trend line. Yeah, I haven’t done that yet. Yeah I just scratching the surface of the 40,000 problem is obviously we have to go in those directions, but it is such a ironic, twisted these things that these cars have so much more technology and technology aimed at safer behavior.

The lights that are flashing, if somebody’s passing you in the lane and in your blind spot. But listen seat, a lot of these issues you guys have been on for a long time. Seat belts were introduced in 19, I think 64. My grandfather’s brand New Rambler had it, and I was, oh my God, what is this?

This is cool. This, it was just a lap belt. And yet we didn’t really have. A culture that embraced, and laws that embraced the idea that you had to wear your seatbelt all the time. And we still don’t have seatbelt usage near anywhere near where it should be. But [00:08:00] there’s that libertarian part of this.

Listen, I’m entitled to, I, you hear this from the folks that drive motorcycles that are on helmets. If I wanna ride my Harley down the road and I smash my pumpkin, my problem not really. It’s a societal problem and more so with cars and motorcycles, but passengers and cars that aren’t belted properly people that are distracted hit pedestrians and bike accidents seem to be on the rise.

So you’re, it’s not just you and you have a contract with society to drive in a safe behavior. Anyway. We can get more into that if you want to, but each of those things probably is worth talking about. Yeah,

Anthony: We talk about all this technology in cars, and I love the limited a DAS in my car, the lane keeping assist, the the lane centering and the adaptive cruise control.

And so if I’m on a log road trip, I’ll always do that, and it’s at, so it’s three cars lengths behind the car in front of me. Every car behind me hates me because [00:09:00] they think it should be half a car length. And I’m like, all right, I’m, I don’t, why are you guys trying to kill each other? I don’t get it.

Especially in the state of Connecticut. I don’t know what’s wrong with your people there. It’s insane. Speed limit says 55, no one’s going less than 75,

Mike Nelson: but I just digress. You’re allowed to change the settings so you can tailgate someone else so nobody can cut in front of you, which natural reaction, right?

It’s, but

Fred: anyway here’s, lemme throw this thought in. There’s an expression that doing the same thing over and over again expecting a different result is a definition of insanity. Welcome to our podcast. Sorry. And you heard that it’s erroneously attributed to Albert Einstein, but nevertheless, it seems to make a certain amount of sense.

So maybe we should shift the focus of regulations and public response a little bit and do something a little different.

Innovative Safety Solutions

Fred: For example, what if we focused on warning other people and the police when a car is [00:10:00] out of control? What if we required cars to, we’ll say, flash their headlights intermittently? If a driver’s going more than X miles an hour over the speed limit the vehicle instrumentation now and computers are certainly up to the task of detecting when a car is being driven Erratically.

Which would be another reason for alerting the public and oncoming motorists and, and pedestrians that something really bad is about to happen. Why, is it in your mind, does it make sense to try to shift this focus a little bit? We’ve been trying to protect the driver for 50 years, a hundred years, I don’t know, however long with mixed results.

And as you said, the amount of people being killed is pretty stable. So do we need to go in a different direction in order to really make a dent in the annual [00:11:00] fatalities?

Mike Nelson: I’m all ears. I you, instead of flashing lights, I’m, as you were saying that, why don’t we put the hazard lights on? This car is 20 miles over the speed limit and the hazard lights are on and it won’t go off until you get it below the speed limit.

Or get it within that range. 20 is still a lot, but but I did say at the top of the show I’m also probably more worried than ever about acceleration because especially EVs are designed to be rocket ships. And a lot of the mishaps I’ve been seeing are people that will just, Hey, this one case that just astounds me, this guy’s on a suburban two lane in each direction, center turning lane, and he is sitting in a red light in a Tesla.

And he absolutely floors it. And by the time he gets to the next shopping center, he’s doing 104 miles an hour. Like those kind of people belong in jail, but we [00:12:00] see him, when I talk to the folks that I know at automobile manufacturers, they tell me Safety doesn’t sell.

Anthony: You’re talking to Lee Iacocca.

That’s impressive.

Mike Nelson: That would be a good trick. But no it’s like they’ve, some they’ve tried that. I know when I had a young family, we were driving around in the Volvo refrigerators the 2 42 DL or whatever it was, but ’cause they were the safest car. Yeah. But the same point now, the, somebody put out a piece about the size of Carsi the day in LinkedIn and I responded, they were standing beside a a threequarter ton, something.

And this woman admittedly short she barely hit the height of the hood. I have an antique 67 Chevy. And I took a picture of it with me towering over the car. Size sells the macho ness of it sells. Yeah. And yeah. Should we allow that? Is that [00:13:00] appropriate to sell these things that are arguably construction type vehicles, but they’re used for demonstrations of manliness?

Yeah. So again, I think we do need to say just because we, ’cause we can do it doesn’t mean we should.

Michael: Yeah. And back to your example with the speeding Tesla, if that vehicle was speed limited to 35 when the driver took off, I. It. Raise the question, if potential buyers knew that existed in the vehicle, would they buy that vehicle?

A lot of them probably wouldn’t. Saying that saying that those vehicles wouldn’t sell is probably right. And it’s a good reason to put it into, let into regulation because at that point every manufacturer has to start putting those vehicles out during the same model year and you don’t have this kind of race to the bottom where the manufacturer that allows the speeding is the one who’s gonna be getting all the sales.[00:14:00]

Mike Nelson: Yeah. And for those of us who’ve driven on the auto bond, you know this idea that there’s no speed limit. I dunno if you guys have ever done that. I’ve taken the car up to a hundred miles an hour ’cause I was on the auto bond, but I did it for just a minute and I thought this is nuts. You. I’m so uncomfortable driving invest vehicle.

Yeah. And why do we have cars that do a hundred miles an hour period? Yeah I do think the answer is regulation and unfortunately for us as a society, go to the car manufacturers and say, be different. They’re trying to change the EDR device, which is a really minor device.

And what I’m hearing from the folks in the EDR committee at Society of Automotive Engineers, increasing the cost of $25 as a game changer. Really? Yeah. That much. So I don’t know if that’s canned, they’re competing, all these cars are competing with Tesla. They have not [00:15:00] competed well.

Now we have new entrants into the car marketplace, not in the US but BYD in China, that’s Tesla is competing with BYD. The entire automotive fleet in Europe and the US is competing with BYD. And they’ve, they make supposedly a heck of a car at a price point that’s half of ours, and they have factory capacity to double the amount of production right now.

And you gotta imagine the traditional OEMs looking at that tsunami they’ve been beat by Tesla and then there’s a super car coming that beats Tesla by a landslide. So everybody’s what I’m being told by some of the people in the automotive world is you will absolutely see less models.

You’re gonna see whole product lines disappear. A much narrower focus. And they’re doing that to just survive. So now we, if we start to [00:16:00] eat into their sales because they voluntarily no longer make a big truck, I don’t think we’re gonna get very far. So I think it was, I’m not sure which one of you guys said it, but the idea that we have Washington get involved and do this, I think is the right play.

I’ll add this one piece though that came up during one of my podcasts. I had Vin White on who has served in the dots of Democratic administrations, the last two, and, as we were reasoning our way through a podcast and we were talking about regulation, there’s almost this expectation that you say to Nitsa, here’s a nice rule, make this rule.

Okay. And the more VIN and I talked about it, that just won’t work. We have to get consensus as a community from all the stakeholders as to what we can move forward on, and then go to [00:17:00] Nitsa and say, here’s what automatic emergency braking looks like, and we’re willing to do it voluntarily and now make the rule for that.

The idea, especially with how much these administrations turn over teeing it up as best as we can and then saying, there’s a lot of consensus behind this, so you’re not going to do a lot of work. And you can get it done pretty quickly. So I. As I think about regulation, I think that’s probably the best model because we’re just seeing acting administrators and they move through.

Like I got a business card the other day from somebody at NTSB, and then I went to Lincoln with them and he is gone already, and it’s like.

Michael: Yeah, we’re seeing that play out right now with automatic emergency braking, with the NHTSA put out a rule that the manufacturers didn’t, couldn’t quite get on board with.

They thought it was too stringent. And, the new administration comes in and the first thing they’re trying to do is unravel the rule that could [00:18:00] save a lot of lives and could be one of the, the, it probably was the biggest safety rule that Nitsa put out during the Biden administration.

And it now it’s hung up in court and it’s already the subject of, scrutiny from the new administration. And so we, you’ll have four years getting safety put into cars and then four years removing it, and that kind of thing goes back and forth, and ultimately you don’t get anywhere.

Which huge problem. And so I understand what you mean and how can, yeah. How can it be against automatic emergency braking traffic? And it’s really, the industry I think is not against automatic emergency braking. They’re just against. The types of the more advanced automatic emergency braking that’s going to ultimately cost them more.

Anthony: They claim what We can’t get it to work at highway speeds. Ignore Toyota system that works at highway speeds. Yeah. It’s crazy.

Challenges with Current Safety Technologies

Anthony: So I wanna get back to we’re talking around the safety issues and cars have all these great features in them and they quote unquote drive themselves to a degree.

My car doesn’t claim [00:19:00] to do that, but on highways I let it do that. It helps me out. And I listened to one of your podcasts, Mike, where you talked about saying your car essentially drove yourself from Manhattan to Pennsylvania. Yeah. And you’re a different kind of person, but the average person thinks my car’s driving myself.

I’m not paying attention. So what I wanna ask you is, while your car was driving yourself, what were you doing

Mike Nelson: That, that car in particular was rivian. So a lot of people point at Tesla. So Vivian’s been drafting following Tesla for a long time. So for a while there ADAS systems confined it to the high speed lane of a highway.

Now it will allow you to hit the directional and it moves you over. And you can see it creeping towards Tesla. But I also had my first mishap with a, a Rivian the other day where the car tried to steer into a jersey barrier. And I’ve had two Rivian combined three years and that’s the first.

I’ve never [00:20:00] had a fan breaking in it. I’ve never had this misdirection. I was able to grab control. But I think the more people chase Tesla, the more we’re gonna see a lot of these more edge cases and anyway I think the drive from New York City is just the testament. I do that all the time.

I’m, that I’m going to tomorrow. But I’m holding the wheel also. And this is what I’ve noticed in both Tesla and Rivian. I think everybody would say holding the wheels a poor replacement for driver monitoring, or a poor way to do driver monitoring. And that the in-camera view of the occupant is superior, not perfect.

Both of those cars, Teslas and rivian. Now, if you pick up the phone from your, just to do this annoying it an annoy the car, it will immediately flash up, pay attention, and that takes this discussion. I [00:21:00] don’t wanna dominate this but I was amazed at that aspect of the car, sensing the camera.

I, since the telephone what I’ve come to find out is I’ll get into great detail because I just litigated a case against Tesla. We found out that what they call the selfie camera that looks into the cockpit, yeah, it’s a camera, but more importantly it’s capturing behavior and then coding that behavior.

So I’ll give you an example, is the driver wearing sunglasses. The, that, that camera is picking up is, he’s wor, he’s wearing sunglasses, but he is still looking down on his phone or he is looking out the side mirror out the side window. The cars are now have grown more sensitive to I, I gotta get to the finishing point on this.

I’m, I apologize. But the cars are sensitive to what’s going on in this cockpit, [00:22:00] and you’re not given a lot of latitude when they’re in, in, in some form of adas. It’s reacting a lot more to what the driver’s doing. So I, as a result of that I don’t change the radio station. I don’t, I make phone calls on the screen, not on my phone.

But I think that’s all heading in a better direction. Maybe not the best.

Michael: Yeah, I was, I think I was discussing right before we started that you should probably extend driver monitoring, to level one, level zero to pick up distraction since that’s such a killer on the roads, why are we just thinking about it in terms of level two and above when it could be doing more to solve a big problem we have on the roads?

Yeah. I think the answer to

Mike Nelson: that is they don’t want to be blamed for the the level two driving fail because the driver’s not paying attention. But you’re absolutely right. That was my point when I talked to two different automotive industry experts and I said, do you know that can, it can sense when the phone’s being [00:23:00] touched?

And they both said, yeah, it’s not just the camera seeing it, but there’s some connection between the car and the your phone. Where the car knows where the phone is, it can sense it, and when it’s moving. It knows the phone is in motion. So I, on an engineering basis, I haven’t gotten to the bottom of that yet, but why is, to your point, why is that not on all the time?

Fred: Mike, your discussion makes me feel like we’re all doomed. You are a, you have an engineering background, you have a legal background. You litigate this stuff. You of all people are fully aware of the consequences, both in terms of the operation of the vehicle as well as the legal implications of what distracted driving or automated controls pause.

And yet you are [00:24:00] still using the automatic controls to drive the car, albeit attentively with your hands on the wheel. But the vast. Population, the vast majority of the population who’s exposed to this technology will not have your extensive background and will not have all the reasons that you’ve got to be attentive to the lapses of that the automatic controls will inevitably cause and the safe operation of the vehicle.

Help me out here. Tell me why we’re not doomed.

Mike Nelson: I think it’s the political piece of this thing. So we don’t want, the automakers don’t want to be the supervisors for the human beings. We just don’t want to, they don’t want to be the ones to bet the qualifications of a driver. So we are

Fred: we are

Mike Nelson: doomed.

Is that what you’re saying? No I think we should I’ve been saying this for a while, but I think we should get a I. A group of stakeholders to [00:25:00] sit down and talk about things like acceleration, or why is a car allowed to go over 80? Or, I love your idea of if it’s 20 miles over the speed limit, it knows instantaneously something like a flashing light goes on.

Like why are we doing this? Why are we allowing this the impairment and all these things. By the way the research I’ve done, distraction and impairment and speeding. If you look at those as slices of a pie, they’re gonna overlap. Yeah. Because somebody who’s impaired is driving too fast and is also inattentive.

We have these cameras in the cockpit now reveal to me that these cars can monitor the driver behavior better than ever before. I think the secrets to making the roadway safer, these cars safer is start to do things like you suggest for why not have the, he’s touching the phone, [00:26:00] tell him to stop and pay attention at level one.

We’re zero or the system’s not activated

Fred: Yeah I think that makes obvious sense and it would be a minimal cost to develop it. All the software and controlled authority is already there inside the vehicle. Another thing that would easily be done that would save a lot of lives, I think, is to use the capabilities of the vehicle to warn the driver of an impending dangerous situation, or as you call it, an edge case.

For example, if you’re going down a road at the legal speed limit, but there’s a hairpin turn up ahead. The you’re gonna need to slow down right in order to make that hairpin turn safely. But the vehicle is fully capable of looking at the map and looking at the road you are on and detecting far in advance the impending hairpin turn.

And why not warn the driver? [00:27:00] Why don’t you, we’ve all got screens that can display this information. Why not use this information to warn the driver and say, slow down jackass you’re gonna die. It could also be extended to look at the operational conditions for the vehicle. The driver or the occupant may not know that you are in icing conditions, and that can happen suddenly.

And it, hydroplaning is another one. So there’s a whole range of information that’s available to protect people both inside and outside the vehicle. That is not an extension of the current sensing and computing capability within the car. You could do it today, just sit down a couple programmers for a weekend and you have it done.

And people aren’t doing that.

Legal and Regulatory Perspectives

Fred: So is there any legal responsibility for automakers to look at what they’re putting out in the public to say this could be better, and we’re not doing [00:28:00] that. And it seems like I’ve read about cases where there’s some kind of liability associated with people being jackasses and not doing what they need to do to protect the public.

But is there any background for companies not doing what they can do to protect the public?

Mike Nelson: Yeah, there’s a school of thought and product liability laws that if it’s foreseeable, that abuse of the product is foreseeable. It can trigger some liability on behalf of the manufacturer. Now, usually that’s in the form of a warning.

But foreseeable misuse is something that I think could become a stronger type of claim that’s made.

Fred: Can we have a cabal of lawyers who get together with some smarter engineers to say, these are the big gaps, and why don’t we go after that? Is there, are you guys required to be lone rangers or can you get together with a posse and, go after the bad guys?

Mike Nelson: Yeah, the, I think the people that [00:29:00] are informed enough to make decisions on really what we’re talking about is public policy is relatively minor. Attorneys are busy trying to make money. Very rarely are they trying to think why don’t I convene a a cabal? But I don’t think it’s any different than saying.

The car manufacturers have to have a say in this. And there’s this concept in the regulatory world of a regulatory sandbox where people can come in together, share some ideas, and by agreement it’s confidential. And my view of this is we should have a regulatory sandbox directed at some of these things and hammer out some agreements that make sense, go after some low hanging fruit, and then go to nitsa and DOT and say here.

But right now the car manufacturers will talk a good game. For a long time, general Motors had a advertising campaign. It was based on zero [00:30:00] zero emissions. They were going electric, zero collisions and zero fatalities. I don’t know if they’re still running that. But that was a a public statement of what they were going to be doing in the future.

Fred: We all know that’s nonsense. I remember when Nassar was the president of Ford, a lot of commercials, this is back in the eighties I guess, but a lot of commercials saying here at Ford Quality is job one. We’re gonna get it done. And Michael, what are they up to this year for recalls 105?

Yes. Clearly what they’re putting out in public has got nothing to do with their current or future behavior.

Anthony: You cynic.

Fred: Thank you.

Anthony: No problem. You’re listening to the Center for Auto Safety Podcast. Go to auto safety.org, click donate. And if you donate a thousand dollars today, Fred Perkins will come to your house and mow your lawn.

Maybe. Yes,

Fred: if you have a, if you have an automated lawnmower, yeah. I’ll be happy.

Anthony: Okay. Look at that. Slacker.

Event Data Recorders Discussion

Anthony: Can we [00:31:00] talk electronic data recorders? I want to jump into the recent Tesla case here, and I have questions around electronic data recorders there. So this is, I’m gonna very simply put what it is and you’re gonna tell me everything that I’ve said wrong.

So

Mike Nelson: imagine you start off with the first name. Oh, is it wrong? It’s not electronic. It’s no event. Data recorder.

Anthony: Event data recorder, dammit. Event data recorder. So it’s like a black box on an airplane, except it barely, it’s only required to record like very minimal amount of data, right? Like the stuff that’s not useful.

Somewhat useful. Useful.

Tesla’s Data Handling Controversy

Anthony: And so what I wanna jump to is the Tesla case the one recent case in Florida where Tesla stores a ton of information and they had this crash and they had a copy of all this data locally on the Tesla. And Tesla uploaded it to their remote servers and had a command to wipe the local copy from the car.

And I’m just gonna ask around [00:32:00] chain of evidence, chain of custody, some other words that I don’t use properly. Why, unless you’re just a sociopath, why would you design a system to do that? To say, Hey, I have a duplicate of this data. Let’s throw it out.

Mike Nelson: Yeah. What ames is, they’re not actually wiping the data out of the car.

They’re breaking the connection link to the car so that they can’t download the data anymore. The data’s still there. But but I don’t know that to be served. Okay.

The Evolution of EDR Devices

Mike Nelson: And the EDR device let’s just hit that nail that quickly. That device has been around a long time. We can call it the black box.

Everybody refers to a blank black box, but it’s monitoring somewhere around 30 signals. Five seconds at two tenths of a second inter intervals, and it’s only after an accident. A lot of talk about how to adapt that [00:33:00] to newer tech. I’m on that committee for the site of automotive engineers. And the one thing you hear is I can’t tell you how much pushback we will get if we bring something back to them that’s more expensive,

Anthony: but memory’s cheap as can be.

Like

Mike Nelson: Yeah, the, but they have to redesign the black box and the black boxes, and it’s a little tiny computer. ’cause it was created to monitor things like seatbelt usage and airbag deployment and break braking. And so that’s why you only see 30 signals and that’s why it’s so small. It is federally mandated.

Cars have them, or actually a better way to say that is federally mandated that if you have them, they have to have these characteristics. But car manufacturers are not even, some of the pushback on this is okay, we’ll just remove those devices.

Anthony: Porsche doesn’t use them, right?

Yeah.

Michael: I don’t know who does it. Yeah, I think Porsche is the one manufacturer that doesn’t, I think it’s like a number is like 99.6% of all vehicles [00:34:00] have them, except for Porsche.

Mike Nelson: But getting back to the Avita case, yeah they weren’t using EDR data. They’re using what I call vehicle performance data.

And that’s not captured in that black box. So you know, that in of itself is a long story and I wasn’t directly involved in that case. I know what you guys know or what’s written in transcripts or what, the deposition of a police officer is probably what a lot of people are referring to Now.

I haven’t gotten the transcript of the trial yet, but I’ll just, what’s ironic about the Tesla case? Tesla produces more data than any other car manufacturer. So if you’re a Tesla owner, you can go to your app and request data for a certain date range, and it will give you about 300 signals, not data, and you’ll get that within 30 minutes, [00:35:00] but it’s not the entire story.

So Tesla has 10 times that amount of signal uploaded from the car, but Tesla hasn’t deemed that consumer data. So they call it engineering data. And that’s what happened in Ben. They had given that first tranche of data or signals, but then said, oh, we don’t seem to have that stuff anymore. And then after it was fished out of the car, then it became, oh yeah, we do have it.

If we have time, that story is probably worth talking about. But but right now the vehicles have a lot of electronic data that relates to the vehicle just driving around,

Anthony: right?

Challenges with Vehicle Data Access

Anthony: So there’s no requirement that manufacturers have to have this in place. Is there any push to get manufacturers ’cause the argument that’s saying, this is gonna cost too much, or we have to arrange it, that just strikes me as, as [00:36:00] lazy.

Mike Nelson: The problem’s already solved. The it’s not that we don’t have to require car cars to do this. They do it. Every car brought into the marketplace in 2025 has an embedded 5G modem, right? If you look behind the rear view mirror of most newer cars, you’ll see what I call the trapezoid.

It’s a shape that sort of is hiding behind that mirror. It has forward facing cameras, but it’s also got a modem in it. So that all cars are beaming up, driving data to the OEM clouds. Some, a lot more than others, but it’s already, that’s already going on. It is this fight about who has access to the data and that’s confused with ownership and privacy issues too.

I’ve been trying to get data for a woman who owned a Hyundai in Connecticut and had an accident and. Really feels like the card didn’t behave properly. [00:37:00] And after a year of Hyundai saying things like, okay, we’ve got your list. Yes, this makes sense. Then they just stopped responding to me. So I sued them.

You would think they would then say, oh, you were serious about that, Marissa told me. And yeah. They won’t give the data up. I love this story. They won’t give the data up, but they’ve offered to buy her a new car, so she’ll go away. And fortunately this one was like, no, I wanna know what happened.

I just think that the car manufacturers are so worried for competitive reasons a little bit. I don’t want Macy doesn’t want gimbals to know what it’s doing. But I think it’s more the idea that we’re gonna get sued if we let this data out. And I think the reality is you’re gonna get data, you’re gonna get sued because you [00:38:00] have the data and you haven’t given it up.

And you’re gonna get that data’s there, right? It’s the best representation of what happened in an accident.

Arbitration Agreements in Car Purchases

Anthony: My understanding with the Tesla case and things like this is the owner of the Tesla, they, when they bought the car, they signed an arbitration agreement. They probably didn’t realize this.

Hey, I’ve given up my right to jury by, trial by jury. Oh, by jury. There we go. And, but the people outside the vehicle who are not in this, who unfortunately were killed they didn’t agree to any of this stuff at all. So they got to sue and got to get out of this. So what happened, like in this.

Case, you’re, I don’t know how much you can talk about this, but this woman bought the Hyundai. They probably have an arbitration agreement there. Does that hold up when there’s an accident or if I rent a car? I’m not agreeing, I’m agreeing to the, to not, maybe not sue the rental company, but I’m, I rented a Tesla and I wanna see what it can [00:39:00] do.

Mike Nelson: Like I said, we can talk for a very long time. Car manufacturers with exceptions of companies like Tesla and Rivian do not sell the car directly to the consumer. It’s sold through the dealer network laws by the dealer. So the contract is between the dealer and the consumer. Car manufacturers started inserting these arbitration clauses in their, in the literature if you will.

And when they started to en try to enforce ’em the court’s first response was, you don’t have a contract with that consumer. So ironically, your car is not gonna function well or if at all, unless you sign the data sharing agreement. So in order to take delivery of the car, you have to agree that the data coming off the car is something a car manufacturer can use.

And the role, it’s also wrapped in the infotainment center section [00:40:00] and those sorts of things. So this, they have stuck arbitration agreements in that I’ll call it a separate contract as opposed to a sales contract. It’s hard to argue about any of these cases without talking about some level of data.

So then they say, ah, that contract that is between you and us does have the requirement that you go to arbitration and they all do. So question for

Fred: you, Mike, as a consumer, can you’re sitting down at the auto store and you read through this and you say I don’t wanna do that, and you refuse to sign, or you put a line through the objectionable parts and initial it, and if the dealer then goes ahead and says, take the damn car anyway, I don’t care.

Are you still subject to that or is it then incumbent on the dealer to say, no, you can’t buy the car? What do you do as a consumer when you’re sitting at the point of sale and you don’t [00:41:00] want all this crap hanging over you?

Mike Nelson: Yeah, I, it’s manufac manufactured by manufacturer and its, time period.

Tesla only put the arbitration agreement and its purchase agreement about five or six years ago. And at the time of purchase, and I’ll just go back to 2022. And at that time there’s a box that’s pre-checked and I could uncheck it. And that’s the arbitration agreement, not the data sharing part of it.

I recently tried to buy a model Y and this is when they were going through the period of the old model Y versus the refresh model Y, and I just couldn’t get the model Y delivered in time. And when I went looking for that section, it no longer had a box checked on. This is my recollection. Anyway, it was simply, you agree to arbitrate and if you don’t, you have to send us a letter saying you don’t.

So they’ve stepped up, they’ve

Michael: added new barriers. Yeah. They make you actually mail a letter when they could have a checkbox.[00:42:00]

Fred: So you then, as a consumer would have to. Write the letter, mail it, keep a copy, be ready for li, to drag it out. And so keep track of that over the next X years.

The Future of Connected Cars

Fred: So yeah,

Mike Nelson: I think we’ve gotten it wrong as a society that we require all these consumers to go to arbitration. Yeah. I this Supreme Court precedent, but I just think that’s wrong.

It’s a convenient way to resolve issues. But having just done an arbitration with Tesla, I can’t tell you how much the the,

Michael: we’re not playing in a level playing field. Yeah. We’ve talked about it a lot in the context of driverless vehicles and their insistence on using arbitration agreements for their riders.

And, I think I’ve described it as a kangaroo court on a number of occasions because the rights that you have as a plaintiff in the civil justice system do not carry over effectively into arbitration. You’re not even allowed

Mike Nelson: to take a deposition. Nobody is. [00:43:00]

Anthony: Wow. What a wonderful world.

Huh so maybe we need, so people can, consumers can go out and buy their own dash cams and record stuff. Maybe we need their own personalized event. Data recorders, because then you have your own Yeah. Local. I dunno,

Mike Nelson: I don’t know how you would wire that in

Michael: to the car. Yeah. This, you would have to hack the vehicle to do that, right?

In many circumstances,

Fred: yeah. You actually, technically you should be able to do that through the OBD. But I have another question to follow up to what I was talking about before. What if you buy a used vehicle? Are you bound by the arbitration agreement, the original purchaser signed?

Mike Nelson: No, but you’re gonna get a new agreement.

So this, make it, you buy a 3-year-old Tesla. In order to get that car to move, you have to, Tesla then is informed you’ve purchased that VIN number. And then in order that car’s not [00:44:00] moving, you don’t get to test drive it under somebody, you’d be doing it in the prior purchases name. But until you agree with Tesla that you’re going to use their operating system, and let’s think of ’em as that you’re not driving that car.

So it’s the same as if you bought an Apple phone and you didn’t agree to the connected services agreement on, the Apple device. You couldn’t then take that phone and start using it without apple’s assistance.

Fred: How would that work? So I’m buying the car from Michael, and Michael doesn’t know crap about anything.

So he takes me 50 bucks and he gives me, he gives me the keys to the car. So do I then have to call Tesla and Beg, beg for authorization, or you have to become a Tesla customer.

Anthony: So you’re no longer purchasing the car, you’re purchasing a license to use some software.

Mike Nelson: We purchased [00:45:00] the car.

Fred purchased the car. And I think that’s great, Fred, that you purchased cars for your colleagues for 50 bucks too. 50 bucks and it was a good deal. And yeah, but then simultaneously you have to say, Tesla, I’m the new person. And they’re gonna say, here’s all the documents. You are gonna set up your Tesla account.

Anthony: Are they the are they the only ones doing that right now or is that Rivian as well? Because if I sell my Toyota, I mean they would never know.

Mike Nelson: I just bought a Mazda off my son 20 to 2250 bucks. No anyway but nice little car. It has Mazda software you can download, but I didn’t have to go to Mazda and say, I’ve purchased this car, please let me drive it.

But some of the cars in this marketplace have that aspect and that’s where we’re going. It’s the connected services agreement.

Fred: Holy cow. My sister has an old Toyota. And she’s [00:46:00] never gonna let it go. It’s gonna end up being 50 years old with a million miles on it before she lets it go because she just doesn’t wanna deal with any of this crap or, this new uncontrollable technology or all these agreements.

And I don’t blame her, but, I’m looking to get a new car in a few years and I gotta figure out how to insulate myself from all these data thieves and, crooks and criminals who are gonna be trying to get into my wallet. Yeah. But I think you gotta look at,

Mike Nelson: I think the cell phone’s probably the best example of how this market’s gonna work.

I love my flip phones. The Star Tech flip phone, fantastic. Yeah, they were cool, flip it up, but it was just a phone. It didn’t hit the web. And I knew people that were trying to use those flip phones for a very long time didn’t work anymore. It’s not because the phone is not functional, it’s because the service providers are not providing the service for those phones.

Yeah. [00:47:00]

Fred: So a question for you, Michael, if obsolete technology is so easily disposed of, why isn’t obsolete politics that are killing people and the cars so durable?

Welcome to Fred’s new pod comedy podcast.

Mike Nelson: Yeah. I would say the answer is money and the car manufacturers are incredibly economically discussed right now.

Yeah.

Michael: Yeah. Going back to what we talked about earlier, they just spent four years, bend over backwards to try to convert their production to electric vehicles for the Biden administration. And the new administration comes in and kills all the programs that were supporting that.

And so they have to both recover from that. And, which is a why Ford’s announcement, I think last week or a couple weeks ago, that they were, doubling down on EVs was such a big deal because they, the political pressure for them to do that isn’t there? Where the same way it was four years ago.

Mike Nelson: I’m biased. I think if you [00:48:00] drive an electric vehicle, you will say, I’m not buying an internal combustion engine vehicle anymore. It’s just, it’s so much a better driving experience.

Anthony: I want to get one now. No, I wanted to get one for a while, even though Fred would look at me sideways. Good sense you’d be against it.

Fred, I know you

Michael: well. I’m on the record as wanting the Bezos’s electric pickup truck, although Ford is now getting into that market, so we’ll have to see.

Fred: I dream of living in a place with public transportation myself. Even a bus would be good.

Anthony: All. I wanna jump into another thing from watching your podcast, listening to your podcast.

We’re talking about, in one of them, you’re talking about if these systems fail, inside there, there’s some liability.

Product Liability and Vehicle Safety

Anthony: So if I’m driving down the street and my a b I’m moving it, say 15 miles per hour, and my automatic emergency braking, I crash into a car in front of me. So my automatic emergency braking failed.

It didn’t do what it’s supposed to do. Am I at fault? [00:49:00] Is Toyota at fault? Is the car in front of me at fault? I know this is a complex thing but I. Are the manufacturers, have they designed this in a way that they can just get away with whatever and be like, not our fault. You were behind the wheel.

Mike Nelson: I think you just put the answers in your question. Oh, dammit. Yeah. What did I say? You said the automatic emergency braking failed. If it failed, then it’s okay. Why? And it’s probably a product liability claim against the manufacturer. But was the driver driving too fast?

Probably. So you’re gonna have this, as we go down this pathway, you’re gonna have this really weird emergence of mixed liability between negligence and product liability. And don’t forget, product liability doesn’t apply to a purchaser vehicle. So if I buy the vehicle, I can’t sue Tesla or whoever it is, and say the product failed.

Under the concept of product liability, I [00:50:00] can sue it for breach of warranty.

Anthony: Okay. E explain that more. I’m not sure.

Mike Nelson: Yeah. It’s called the economic loss Doctrine. Okay. So if you got a beef with the person who sold you something, the courts don’t want you to walk in and say, that’s a product liability claim.

The passenger. And ironically, if the passengers and the household of the driver who purchased the car, the passenger can bring a product liability claim, and the Ben Vita’s case, those two people were outside the car, they can bring a product liability claim. Not just the forum, not just I can sue you in court, but I can also.

Bring product liability claims, not just negligence claims. And I certainly don’t have an argument about you breached the warranty. That’s, either written or implied.

Anthony: Okay. And in that case it the massive award that Tesla had to pay, that was product liability related, or is that strictly that?

Mike Nelson: Yeah, those are two, those are product liability [00:51:00] claims with a punitive claim on top of it. Okay. So the 42 million of the 242 million is, reflects a 30% allocation of the tort claim. So one person died, the other person was seriously injured, so the jury said, okay, we find Tesla 30% responsible for this accident.

And the driver 70%. But then they put some outrageous numbers on the verdict slip for, these people were entitled to. And again, one one’s a wrongful death claim. And again, I don’t want to get into what’s the value of life. But then the other was this person was injured and will be, living a very different life for the rest of their lives.

They received tens of millions of dollars and then Tesla had to pay 30% of that. So that’s where the [00:52:00] 42,000,500 comes from. The 200 million was punitive damages against Tesla.

Anthony: So I imagine in these cases with the auto manufacturer, they’ll do so I read cover to cover my auto manual. ’cause I’m exciting at parties and Toyota has in there saying, Hey, this is how the system works.

It is not guaranteed to work though. They put that for the a EB. Are they gonna start putting that on every system? I like? Can they do that about seat belts? Hey, the not guaranteed to work though, but like where does that kind of CYA language end.

Mike Nelson: Yeah, I I think that’s a. One, I don’t think the CCYA language is going to be that helpful to anybody from a manufacturing standpoint.

Anthony: Oh, so you, that’s what,

Mike Nelson: no, I don’t, listen, Tesla says this is an experimental car. They say that for the you’re in beta testing mode. This is in the writing documents and the consumer. And so for you to enable full self-drive, you have to acknowledge this could [00:53:00] kill you. It may not anticipate all the problems in the road.

You may, it may have unexpected consequences to what you’re doing. This, you are a, you agree you’re a lab, right? So that’s the kind of stuff that’s loaded in this, full, just the full self-driving. If you don’t do, if you don’t check that, then you’re not gonna be allowed to use those features. Okay, fine.

But everybody just checks everything

Anthony: and it costs me $12,000 a year for this

Mike Nelson: false self-driving. Yeah, that’s a, I don’t think anybody’s played with that idea yet. I purchased false self-driving, but I won’t sign off on the disclaimer.

Anthony: Yeah.

Mike Nelson: I won’t, so I think the legal world will call that a contract of adhesion, but I, that’s why I don’t think those those terms, you may get hit by an asteroid.

So be careful out there. I don’t think those terms are going to be much protection for car manufacturers. I think we’re gonna just be straightforward forward product liability law

Fred: based [00:54:00] on what we’ve just learned. I think I want you to buy the Tesla back. Gimme my 50 bucks back. You can have the damn car.

Michael: You can buy a cyber truck now and get full self-driving, thrown in for free. They’re trying to get rid of them so bad,

Anthony: but you still have to agree to that insanity. And then you drive a cyber truck. I guess if your local library doesn’t have a copy of mind comp available, you can just always go in your compartment.

Ah, oh my God.

Concluding Thoughts on Vehicle Safety

Anthony: Before we wrap up here, Mike, is there anything you think we didn’t hit you with? I know we could literally sit with yous for hours and hours and hours, but our listeners won’t do that.

Mike Nelson: Yeah I one, I do think we, we’re gonna have to solve this 40,000 a year problem.

That’s just gonna have to happen. And there is some movement by the NTSB now to put, to make car manufacturers have adaptability for ignition interlocks for people who are impaired. So the idea is [00:55:00] that, plug interlock in here because the court ordered it. So the cars have to be adaptable to that.

Now, whether or not that actually becomes regulation that’s promising that, I do think that’s, the Department of Transportation saying we need to change this approach. And that was also going to be another thing that Tigie wanted before he left transportation, was that kind of initiative.

So I, I think I, I don’t think all hope is lost. I think these things ultimately are all gonna be so much better for us. And so I think the growing pains we’re going through as a society I think are worth it. I think this technology and the insurance industry, byway safety is saying we clearly are seeing lower incidences of accidents using some of these and we, yeah.

So I don’t wanna make your listeners listen to too much. [00:56:00] A lot of these lane keeping assist things or adaptive cruise control. The car manufacturers keep referring to them as convenience equipment, not safety equipment. Just everybody should be aware that’s in the lexicon in the language.

But the I think these things will contribute to a much safer car or a much safer driving environment. And I think as time goes on, in fact, there’s there, there’s now discussion about making brake lights not only show up in the back of the car, but on the front of the car. Like you should know the car in front of you is braking for whatever reason.

It doesn’t add that much to the value of the car. Wow, that’s an interesting idea. But anyway I do think I. I think it’s worth, working hard on this because ultimately we’re going to have cars that have robots. There’s just no way about it. And we have to start taking, the steps to figure out what our public policy’s going [00:57:00] to be around those.

Anthony: I’m looking forward to robot prison or all of these bad robot drivers are locked up behind bars. Visiting day is gonna be very interesting. Yeah I think I like this idea of the brake lights in front because it helps me when I transfer lanes, I can see, oh, is this asshole gonna speed up on me?

Are they gonna be a nice person and slow down? That’s a great one. I really like that. And with that, I think we’ve we’ve run through our hour plus time. Mike Nelson, thank you for joining us. Always great to have you here. Thank you, Mike. Thank you, mark. And we’ll have you back and we will focus on maybe one topic and go really deep dive and we will warn our listeners that we are focusing on this for the next hour.

With that, thanks listeners. We’ll be back next week. Bye.

Mike Nelson: On guys. Bye everybody. For more information, visit www.auto safety.org.