Justinian Lane

Let’s Talk About Toyota

I’ve read a couple of pieces about the Toyota unintended acceleration issues.  The most recent one I read is from Boston attorney Alan Crede.  In his piece, which I’ve quoted below, he takes a couple of familiar names to task for assuming that the real cause of the unintended acceleration problems is elderly (55 is elderly?) drivers.  Here’s an excerpt from his article:

Last week, big business shill Theodore H. Frank wrote an op-ed drawing on data from a Los Angeles Times article reviewing the fifty-six fatalities attributed to sudden uncontrolled acceleration problems with Toyotas. Frank noted that, in about half of the car crashes, the driver's age could be ascertained from the LAT's compilation and the ages of the drivers skewed to the elderly.

The next day, blogger Megan McArdle tracked down the ages of "all but a couple" of the drivers involved in the Toyota crashes and revealed that the "overwhelming majority" were over fifty-five years old.

A lot of people have hypothesized that the sudden uncontrolled acceleration accidents involving Toyota might be caused by a computer or electronic bug in the cars' throttle. Since there's no reason to believe that Toyotas with a computer bugs would discriminate against older drivers, Frank and a host of other bad bloggers* trumpeted the results as proof that there is no electronic problem with Toyota's computerized engines and that, in fact, the blame lay with older drivers' driving skills (or lack thereof). (Question(s): McArdle used a cutoff age of 55 and up. Are 55 year olds, in today's world, frail or senescent? Most research does not show a significant decline in driving ability until a couple of decades after 55 and I know many people in their sixties who are in far better physical shape than I am. What would her findings have been if she included only drivers 70 and up?).

Source: On Bad Bloggers And Black Boxes - Boston Personal Injury Lawyer Blog

Two camps are beginning to gather in the Toyota debate.  On one side are aggressive injury lawyers and conspiracy theorists (I do not include Crede as either) who argue that every Toyota on the road is a death trap with mechanical and electrical problems galore.  On the other side are corporate apologists who believe that every single unintended acceleration case is purely the fault of the driver.  I think both sides are exaggerating their case, and both are doing so for political gain.  The PI lawyers hope to drum up thousands of cases so they can force Toyota into a huge settlement.  The apologists want to keep supping from the corporate gravy train that includes perks like fellowships, grant money, and honorariums to speak at corporate meetings.  (The conspiracy theorists just want something to rant about on the Internet.  With luck, they’ll find a connection between Bush, 9/11, and Toyota.)

The truth is that it’s way to early to convict or acquit Toyota, so I’m not going to opine one way or the other as to whether driver error or Toyota is to blame.  I am going to talk about a few issues that need to be resolved before we can reach any verdict. 

General Causation: In pharmaceutical litigation, a plaintiff has to prove general causation to win.  That means the plaintiff has to be able to show that the drug in question is actually capable of causing the type of injury alleged.  In this case, I look at general causation as being both mechanical and electrical.  We’ll start with mechanical.  Are there any set of circumstances in which something could mechanically interfere with the throttle cable?  We already know that a floor mat can do so.  How about anything else?  Is there something under the hood that could interfere with the cable?  Or under the dash?  Next, we move on to electrical.  Are the electronic systems in the vehicle capable of moving the gas pedal?  Could an engineer reprogram the Toyota computer to “floor” the accelerator pedal, or does the system not have that ability?  If it doesn’t, that would be strong evidence that the electronics can be ruled out in any case in which the driver stated the pedal stuck to the floor.  Next, we have to look to see if it’s possible for the computers to adjust the vehicle’s speed without input from the accelerator pedal. 

Specific Causation: Next, a plaintiff has to prove specific causation.  That means proving that the product in question caused the specific injury the plaintiff suffered.  This isn’t as simple as asking how old the driver is.  Instead, it’s going to require a thorough look at the individual vehicle.  “Black box” data will need to be pulled.  Brakes will have to be inspected.  Every system in the vehicle that could possibly contribute to the problem will need to be gone over very thoroughly.  To the best of my knowledge, this hasn’t happened yet in any cases.  Until an expert has the chance to inspect the vehicle, it’s anyone’s guess as to what caused a specific crash.  And “anyone’s guess” isn’t admissible in court because “anyone’s guess” is crap.

Individual variables: How many revisions of the ECU (computer) code are there for each type of vehicle?  What is different between each ECU revision?  Why were changes made?  What revisions do the individual vehicles involved in unintended acceleration have?  If, for example, every vehicle that’s been in an unintended acceleration incident has revision 3, maybe we need to see what code was changed in revision 3.  How many different manufacturers of the ECU are there?  Dell was plagued with problems because some motherboards of a specific type of computer had inferior capacitors made by a specific manufacturer.  If two manufacturers make the ECU chips, we need to take a look and see if one or both brands are involved in the unintended acceleration cases.  The same thing goes for every other component – pedals, throttle cables, gear shifters, etc. – that could potentially cause the issue.  How about climate and weather – is heat or moisture a commonality between individual cases?  Or times of day?

Driver variables: You know what’s great about our country?  Among other things, it’s that our courts don’t make decisions based upon stereotypes.  While the apologists might be winning corporate friends by arguing that old people can’t drive, Toyota won’t win any cases that way.  Instead, there will have to be an individualized examination of the drivers in question.  There are plenty of people in their sixties and seventies who are perfectly safe drivers.  There are plenty of drivers who are in their thirties who aren’t.  True story: My grandmother used to manage a convenience store.  One day, she was almost killed when a woman in her late twenties got confused trying to back out of the stall but instead drove right through the front of the store; it’s not just “old people” who get confused and hit the wrong pedal.  A driver’s age should not create a presumption one way or the other of fault in an accident.

To analogize: Right now, there is a ton of smoke pouring out of Toyota.  It’s probably safe to say that there is a fire.  But it’s way too early to speculate as to what the cause of the fire is.  While the “bad bloggers” Crede writes about may want to ingratiate themselves with Toyota and the “trial lawyers are evil” crowd, I’m going to wait until I get to read some expert witness reports to determine what’s causing these problems.  If and when I get those reports, I’ll post them here so you can make your own decisions based upon scientific evidence, instead of on gut feelings and personal prejudices.

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Posted at 5:57 PM, Mar 19, 2010 in In the News | Product Liability
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