Saturday, October 4, 2014

Toyota's "ipse dixit" bigger and badder than Allan Kam's

So they said.

Attorney Allan Kam, who worked as an enforcement attorney for NHTSA for 25 years, was thrown out of the MDL as an expert witness* on account of Toyota's successful argument that Kam's opinions about NHTSA's lack of SUA and electronics expertise were a matter of ipse dixit.

What were Allen Kam's opinions? Here we have them in an NPR interview: "There tended to be sort of an institutional bias against sudden acceleration at ODI, that - this belief that, going back some years ago, that there's no such thing as sudden acceleration. It was just pedal misapplication."

I cannot question Judge Selna's ruling on the admissability of Allan Kam's expert opinions about NHTSA, even though, among former NHTSA employees who can work with plaintiffs, Mr. Kam has an unequalled insight into the workings of NHTSA's ODI, and even though NHTSA's repeated closings of SUA defects petitions has amounted to a powerful support of Toyota's ability to continue to sell SUA-prone defective cars. It is the incontrovertible reality that courts must try to rely on scientific evidence and scientifically sound expert opinion to find the truth and render justice. In this context, who can obtain enough information about NHTSA's ways that they could conduct a scientific study of its expertise and decisions? And, most hypothetically, with what other regulatory entity could NHTSA be compared to determine if it is up to the state-of-the-art in auto safety regulation? The Europeans? Well, maybe.

Meanwhile while on the topic of ipse dixit, I might point out (once again) that Toyota's endlessly repeated claims of driver error as a primary cause of SUA are really no more than ipse dixit without sound scientific backing, and perhaps the same thing could be said for at least some of Toyota's contentions about floor mats and sticky pedals as well. And most of all, the very biggest, baddest ipse dixit we have seen during this entire sorry story is Toyota's ipse dixit that there is no such thing as electronics causes of SUA. You don't say, Toyota?

IN MDL Docket 4329, Judge Selna writes: "As [plaintiffs' expert witness] Jones explains, proving any particular instance of software failure, such as that in the subject Camry, is impossible in light of the fact that the Toyota ECM is not designed to record data regarding software failure"Jones Report ¶ 22 (“Toyota’s ECM is designed to not record information that would prove or disprove software failure. With such information not recorded, Toyota concludes that the absence of proof of failure is proof of the absence of software failure.”)).)" 


But most truthfully, "Absence of proof is not proof of absence." So says a group of zillions of respected scientists, consistently. That is emphatically not ipse dixit.

*It bears noting that Mr. Kam's expert testimony about NHTSA and the FMVSS was admitted by a different federal court for a case against Toyota, using different reasoning.