October 6 2012
Brooklyn, NY
Here is an unpolished draft of some
facts and opinions after four days of meetings with Congressional
staff on the Toyota UA issue. I went to see them when they invited me
to bring experts to try to validate the evidence I’d provided.
Generally it was
a failure, and I guess and wonder about Toyota’s lobbying forces
working in opposition behind the scenes. I am a rank amateur without
the benefit of perfect evidence, up against the most professional and
cunning lobbyists.
However, the game is not over, not by a
long shot. There will be plenty of opportunity during the trials
and/or with others coming forward, or in the aftermath of more
crashes. Now this also amounts to Senator Grassley joining the House
and others who those who know of this problem in detail but choose to
do nothing to solve it. This group has already included Toyota
itself, individuals who know the inside story, the industry, the
watchdogs, NHTSA, and in some sense also NASA for going along with
NHTSA’s program and not making its scientists’ objections public.
So any coverage of the “bad guys” can include members of both the
House and the Senate under whose direction the staffers work.
I suspect that the background issue of
the pending litigation caused some concerns among the staffers, who
cannot be seen as supporting claims usually associated with Democrat
notions of consumer protection/more regulation/corporate expose,
risking possible job loss at the corporation. This is totally
illogical, because the cost of car crashes to the economy runs into
the hundreds of billions of dollars every year, not to mention the
huge human toll, and the litigation is also a monstrous waste of
national resources.
The meetings were as follows:
Tuesday am – Hannemann with House
Energy and Commerce staffers. The staffers admitted they could do
nothing unless some dramatic insider testimony or some new evidence
came their way. The Toyota internal documents were not enough, even
with expert backup. Theoretically they could compare the internal
docs from me with what Toyota produced to them, but they are in the
minority and a comparison would be very expensive. I heard a rumor
that Toyota has hired away a staffer who used to work on that
investigation, and she is keeping tabs on what goes on there now.
The rest of the meetings on the Hill were with Sen. Judiciary Cmte staff
Tuesday pm – Hannemann—he said to me that he saw in the documents
evidence that T knew of electronics related UA (and of course had not
admitted that at any time.) To the staffers he also explained this,
and highlighted the document evidence of Toyota's global
problem—evidence that does not seem to have been available to Neil
when he worked as a consultant to the House in the past.
Wednesday pm Dr. Gordon Davy and his tin whiskers whistleblower
daughter Lisa. Gordon said there is no question that NHTSA is
“derelict” in not performing its duty to the public, and that in
one document he found evidence that Toyota was lax its approach to
handling tin whiskers risk—they did not bother to prevent the risk
by coating the item, but instead just conducted lab tests to see if
the whisker growth was less than some arbitrary amount that they set
as the upper limit. Separately he said to me that the company was
definitely negligent because it marketed a product that contained a
known danger (pure tin) without taking reasonable steps to prevent or
mitigate the risk.
Gordon proposed that the solution to the problem was to either
privatize the auto safety certification function or to expand the FAA
to also include cars because the FAA is a strong and effective
regulator of aviation safety. Gordon is brilliant. He offered some
great solutions based on his deep experience in industry. His many
contacts in the engineering world may also band together to write
letters and take other steps to help advance awareness of the dangers
of tin whiskers and the crying need for better regulation of the auto
industry in general and regarding tin whiskers risk mitigation in
particular.
Thursday pm Bill Rosenbluth and his wife Jean
Bill presented some compelling technical evidence that, as far as I
understood it, proved that there is a layer of EDR data behind the
data that Toyota wants anyone to see. Bill is able to collect and
download that data from EDRs and finds all kinds of things in it, and
according to Jean, Toyota “hates” him because all they want
anyone to see is the small subset of the real data. He also gave a
detailed explanation and case study of how EDR data is fundamentally
unreliable and how Toyota has been uncooperative with families of
victims by not providing the tool to read out the EDR after a crash.
The case presented, the Eves fatal crash in the pacific northwest,
involved a single-vehicle accident of a truck hitting a tree in which
the EDR recorded data was physically impossible.
We discussed the role of the MDL in correcting this failure of
regulation. The staffer said that the MDL plaintiffs will be able to
fund a thorough technical investigation after which Congress will sit
up and take notice of large settlements or judgments and will do
something afterward to fix the regulation. This really pissed me off
because he is not taking into account all the untold suffering of the
victims and the enormous wasteful effort of all the plaintiffs and
the defense in the litigation. To me this sounded like a close echo
of the position of the automakers. When I heard this I thought we are
really dealing with a Republican mentality. So after this, which he
said on Wednesday, when Bill demonstrated Thursday his download of
the EDR, I asked if he did this when people died, or if he did this
any other time. The answer was, when attorneys asked. Attorneys only
get involved if there is a death or severe injury. And it cost
$10,000, he said. So this puts plaintiffs in a position of having to
pay for experts along the way, during a case.
These comments sounded just like Toyota. The playing field is just as
tilted in Toyota’s favor in court as it is on the Hill.
Friday am Dr. Antony Anderson
Dr. Anderson presented a compelling story of the history of
electronics-based failures, lack of safety standards for cars,
horrifying videos and photos of runaway cars from around the world,
and videos of Ray LaHood saying there is nothing wrong with Toyota’s
vehicle electronics, in direct contradiction of the actual study
findings.
Dr. Anderson brought sample CTS pedals that had manufacturing defects
in several places, including holes that might result in “sticky
pedal” for reasons other than those publicly claimed by Toyota, as
well as evidence of shoddy manufacturing of the APPS (Accelerator
Pedal Position Sensor) assembly.
Dr. Anderson also showed photographs of the Eves EDR box and circuit
board that contained evidence of electrical arcing that may have
occurred when the truck hit the tree, and which may likely have
caused an erroneous data recording that was physically impossible, as
had been described by Bill Rosenbluth.
There was also an extended discussion of wrongful imprisonment of
drivers whose cars were out of control and had killed people. The Lee
case was mentioned. The Mary Hill case was mentioned. Mary Hill
remains imprisoned in Florida after having been sentenced to 15 years
when her car went out of control and killed two girls. Perhaps she
could be interviewed?
Dr. Anderson pointed out a very weak and obsolete point in the law
that he understood from his perspective as an expert witness in many
UA civil cases and in one criminal UA case. That is, he said the law
assumes the driver is in control of the car, but in many
cases of vehicle electronic glitches, the car does not do what the
driver wanted. In actual practice, this puts the driver in the
impossible legal position of being responsible for the behavior of a
vehicle that the driver cannot completely control. The staffers
responded by saying that in a criminal case, the defense could
establish reasonable doubt about the driver’s culpability. Dr.
Anderson later commented that first, it is expensive to do so, and
there are few experts available who could credibly testify about
intermittent or one-time electronic cased vehicle behavior that
leaves behind no physical evidence. Courts rely too heavily on
traditional rules of evidence that require physical evidence of a
defect, but electronic defects often leave no evidence behind, and
thus the driver tends to be blamed.
Dr. Anderson also pointed out the difficulties of requiring
repeatability in proving UA events. The events need not be repeatable
because the sheer number of possible failure mechanisms makes it
impossible to find the exact cause in a majority of incidents. Toyota
engineers have agreed with Dr. Anderson in their recorded interviews
with House staff and in internal memoranda.
Meanwhile on Wednesday am, Gordon Davy, Lisa, and I went to NASA
Goddard Space Flight Center in Greenbelt MD and met Dr. Henning
Leidecker and Dr. Norman Helmold who indicated their concerns that
the NASA study was not scientifically sound. Both of them have worked
as senior level failure analysts for many years. Henning’s
specialty is tin whiskers.
The concerns with the study were with the small sample sizes, lack of
samples of failed pedals, vehicles, or other components, and no data
to analyze. They seem to have numerous other concerns that remain
unexpressed. Dr. Leidecker was on the study team that he asked to be
put on, and the team leader agreed without enthusiasm. He was
sometimes excluded from meetings.
Dr. Leidecker indicated that the path forward involved more thorough
engineering failure analysis and probability studies using a proper
sample of many pedals. I asked him if he would like a huge box of,
say, 1,000 pedals and he responded agreeably, with enthusiasm, and
said that would enable him to predict the probability of failure and
to publish his findings. That would cost so little money! I wonder
what neutral funding source could be secured for such a project.
Someone who lobbies for a highway safety advocacy group explained to
me that the reason this is going to be stuck in the Senate is that
NHTSA administrator David Strickland used to work for Rockefeller,
the chair of the Senate Commerce Committee. Senator Rockefeller is
from W. Virginia, where he got Toyota to build an engine plant. So
the Senator does not necessarily want to do anything to embarrass his
former employee or his patron. Separately I had heard that
information provided to that Committee is likely to be shared with
Toyota.
All this palace intrigue is emotionally exhausting to watch from an
uninvolved position, but far worse to observe as a participating
unpaid volunteer when lives are at stake. I have now seen directly,
as far as the feedback I’ve gotten from the staff, that an
expert-verified universal safety issue affecting every American
driver is less important that those relationships…and I tentatively
and sadly conclude that members in Congress care more about their
political fortunes than they seem to care about the welfare of the
people, and do not have the capacity to proactively fix problems.
Rather we must wait for them to react to some scandal or disaster. I
had hoped to make a scandal with Congress for this reason but don’t
seem to be able to, so much work with media to do it and press
Congress to do it.
When people advocate tort reform they are also often advocating
regulatory rollbacks. Softer regulations lead to more torts. And tort
reform leads to lower compensation for victims. I think these people
will continue this way until some tort happens to them.
The right to vote does not exist except for share holders (analogous to land owners) and even there voting power is in proportion to ownership. 
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