Saturday, October 4, 2014

Alan Kam, NHTSA, and automakers + bonus--8 sneaky tips on how to lie effectively



[Attorney] Gary Eto recently interviewed Allan Kam, the former Senior Enforcement Attorney at NHTSA from 1975-2000. Mr. Kam indicated that when defending product liability suits for alleged defects, that motor vehicle manufacturers have “foisted many myths about NHTSA and its regulatory scheme.”
Below are several such falsehoods:
  • the safety recall that we (the manufacturer) conducted was voluntary
  • NHTSA investigated the matter and found “no defect”
  • NHTSA gave us a clean bill of health
  • NHTSA declined to investigate the allegation (or denied a petition to investigate the alleged defect), so the Government found no merit to the allegation
  • NHTSA carefully regulates the safety of motor vehicles and motor vehicle equipment. If there were a safety problem, as plaintiff alleges, NHTSA would have ordered a recall
  • The Government wouldn’t have permitted us to sell it if it wasn’t safe
  • Federal motor vehicle safety standards (FMVSSs) are optimum standards
Since the vehicle (or equipment) complied with FMVSSs, it was per se safe. For example:
  • The trailer was safe because it met the Government’s underride standard (FMVSSs 223, 224)
  • The vehicle was safe (or cannot be defective) (or was state-of-the art on rollover protection) because it met the Government’s roof crush standard (FMVSS 216)
  • The tire was not defective because it exceeded the Government’s standards (FMVSSs 109, 119)
  • The booster seat was appropriate for a 32-pound child because NHTSA’s standard (FMVSS 213) allowed it
  • The police car was safe, notwithstanding the fatal fuel-fed fire following the rear-end collision, because the car met NHTSA’s fuel systems integrity standard (FMVSS 301).
More NHTSA Falsehoods
  • Rollover is so complicated and unique that the Government’s expert auto safety agency has been unable to issue a safety standard on rollover
  • The Government made us equip the car with an aggressive air bag
  • The Government prohibited us from adding additional warnings about airbags
  • The Government mandates the design of the vehicle’s safety features
  • The federal Government in Washington, D.C. approved the product (by implication, just like the Food and Drug Administration approves drugs)
  • NHTSA tests all products for compliance with FMVSSs, and if there were a noncompliance, NHTSA would have caught it
  • The Government’s own compliance testing proves that the product at issue passes all requirements of the NHTSA standard
  • NHTSA would have penalized us if we had done anything wrong
  • NHTSA would have fined us and forced us to recall had we failed to comply with our obligations under the federal Safety Act
  • The fact that NHTSA allowed our limited service campaign is proof that no further (or more comprehensive) campaign was not warranted
  • If a larger recall would have been appropriate, NHTSA would have ordered it
  • A manufacturer would not dare to lie to NHTSA
NHTSA has a comprehensive regulatory scheme in this area, and therefore:
  1. The court should find implied preemption
  2. The court should defer to NHTSA’s primary jurisdiction
  3. The court should stay this class action pending a potential defect investigation by NHTSA
Perhaps the biggest misrepresentation of all:
Since NHTSA is the expert safety agency, with a large professional staff of engineers, statisticians, and other technical experts, the agency’s decisions are all science-driven, and politics never enters into NHTSA decision making
The primary purpose of lawsuits against manufacturers for defective vehicles is to encourage the manufacture of safer vehicles by providing an economic incentive for improved product safety. Absent lawsuits by plaintiffs product liability attorneys, the motor vehicle manufacturing industry has no incentive to design the safe vehicles as federal regulations are only minimum standards, and because federal regulators are limited by resources and politics."
From Gary C. Eto's website.