Toyota Plaintiffs Target Vehicle Electronics

The sudden-acceleration litigation against Toyota shifts to Oklahoma on Monday, as plaintiffs attorneys for the first time blame vehicle electronics for a crash that injured the driver and killed a front-seat passenger.

The first major trial over sudden acceleration focused on Toyota's failure to install a brake override safety system, not the electronics. A Los Angeles jury began deliberations on October 2 following two months of testimony.

The plaintiff in the Oklahoma case is Jean Bookout, who suffered internal bleeding and a broken ankle when her 2005 Camry crashed six years ago. Her friend, Barbara Schwarz, who was in the front seat, was killed.

Toyota has so far managed to settle litigation over sudden-acceleration defects. A $1.6 billion settlement, approved in July, resolved claims by consumers that their vehicles lost value. Another $25.5 million settlement resolved claims that shareholders lost money from the recalls. But trials now under way could influence the outcome of hundreds of remaining lawsuits, all of which target Toyota for injuries and deaths associated with accidents. Bookout filed her lawsuit in 2008, one year before Toyota began recalling nearly 10 million vehicles for defective floor mats and accelerator pedals linked to sudden acceleration. The case is a an outlier: It's not part of a coordinated proceeding, and lawyers have not selected it as a bellwether trial, defined as one whose outcome could guide the resolution of other cases pending against Toyota across the nation.

"Ms. Bookout doesn't have much memory…but she remembers the onset of the incident and remembers pumping her brakes, and the car kept going when she was slowing to get off the exit ramp," said Bookout's lawyer, Graham Esdale, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.

But Toyota has brought in a significant legal team including Bowman and Brooke, its lead national counsel in the sudden-acceleration cases. The team also includes J. Randolph Bibb Jr. of Lewis, King, Krieg & Waldrop in Nashville, Tenn., and James Jennings and Derrick Teague, senior shareholders of Jennings Cook & Teague in Oklahoma City.

Toyota spokeswoman Carly Schaffner issued a formal statement: "Multiple independent evaluations have confirmed the safety of Toyota's electronic throttle control systems, which are equipped with numerous, robust failsafe systems."

Toyota faces a formidable foe. In addition to Esdale, Beasley Allen's trial team includes senior member Jere Beasley and products liability shareholders Ben­jamin Baker and J. Cole Portis. The firm also is working with Larry Tawwater and Darren Tawwater of The Tawwater Law Firm in Oklahoma City.

The trial is expected to last less than three weeks. "It'll be fairly extensive," Esdale said. "Right now, our trial team is bigger than anyone we've sent to a court."

Bookout and Schwarz's estate intend to claim that Toyota was negligent and that the design of its 2005 Camry was defective, Esdale said. They also plan to ask jurors for punitive damages.

Some 20 experts are on tap, many of whom appeared during the first bellwether case over sudden acceleration to testify about braking systems. Others plan to testify about alleged defects in the vehicle's electronics software. Toyota has moved to exclude a report by one such plaintiffs expert, Michael Barr, whom plaintiffs lawyers indicated has identified a potential software glitch that could cause sudden acceleration. "Mr. Barr testified in his deposition that the Toyota software is defective, which results in unintended acceleration," Larry Tawwater wrote.

FIGHT OVER EXPERT

Toyota's motion and Barr's report were filed under seal, but Toyota has made a similar request to exclude Barr's findings in a case scheduled to go to trial on November 5 in the multidistrict litigation over sudden-acceleration defects against Toyota pending before U.S. District Judge James Selna in Santa Ana, Calif.

Beasley Allen has asked that additional members of its team have access to Toyota's proprietary software, which is housed in a secured facility in Maryland. Only two lawyers at the firm — Esdale and Baker — now have access to the source-code database.

"We filed a motion to allow lawyers trying the case access to it," Esdale said. "Clearly, they'll see and hear about it during the trial." Toyota's attorneys have opposed that request; access to its source code is governed by a stipulated protective order in the multidistrict litigation.

Oklahoma County District Court Judge Patricia Parrish issued a letter order on September 24 denying Toyota's motion as to Barr, but hasn't ruled on the source-code request. On October 1, she denied the plaintiffs' request to put James Lentz, head of Toyota's North American region and Toyota's highest ranking U.S. executive, on the stand. Lentz was forced to testify in person before jurors during the first trial.

Parrish also rejected a motion by Toyota to prevent plaintiffs lawyers from disclosing to the news media all "extrajudicial statements," especially highly sensitive proprietary information, that could prejudice a prospective jury pool.

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Source: Law Journal (Brondstad, 10/07)

Car Brake Overrides Proposed in U.S. After Toyota Recalls

Auto-safety regulators proposed requiring cars and light trucks sold in the U.S. to have so- called brake override features to stop a vehicle when drivers press both the brake and accelerator.

Today’s National Highway Traffic Safety Administration proposal follows record recalls in 2009 and 2010 by Toyota Motor Corp. (7203) for defects that may cause unintended acceleration.

Texas Manufacturer's Defect Lawyer [click to read more]

“America’s drivers should feel confident that any time they get behind the wheel they can easily maintain control of their vehicles -- especially in the event of an emergency,” U.S. Transportation Secretary Ray LaHood said in a statement. “By updating our safety standards, we’re helping give drivers peace of mind that their brakes will work even if the gas pedal is stuck down while the driver is trying to brake.”

The rule, which would update an existing auto-safety regulation, would cost “close to zero” because most carmakers already meet the requirement, according to the agency.

“We’re glad they’re doing it and we’re glad it’s uniform so all vehicles will be required to have an override,” Henry Jasny, vice president and general counsel for Advocates for Highway and Auto Safety, based in Washington, said in an interview. “The population of vehicles without it has grown smaller since the Toyota sudden acceleration issue came out several years ago. But there are no performance standards for it.”

Runaway Lexus

The agency developed the proposed rule and a recommendation issued in December to standardize keyless ignitions to let drivers turn off cars faster after a driver and family members died in a 2009 crash of a runaway Lexus ES-350 that didn’t have a brake-override feature.

NHTSA, in the proposal, said it’s received “thousands” of complaints about unintended acceleration since 2000, with some involving stuck accelerator pedals that brake override technology used in vehicles with electronic throttle controls would be designed to counter.

The systems are designed to cut power to the engine when the throttle and brake are pressed simultaneously, which can occur with a jammed accelerator or a driver accidentally slamming on the wrong pedal.

Reduced Sales

Toyota, based in Toyota City, Japan, said in November 2009 it would install a brake-override system on some of its vehicles after drivers reported unintended acceleration and its sales fell 26 percent in the first 10 months of that year.

By February 2010, before U.S. congressional hearings into Toyota recalls, the company had said it would put brake override systems on all new models beginning in 2011 and would retrofit seven existing models with software fixes.

“We are currently reviewing the NHTSA notice of proposed rulemaking in detail but are proud that with the 2011 model year, Toyota was the first full-line automaker to make brake override systems standard across all model lines,” Brian Lyons, a U.S.-based Toyota spokesman, said in an e-mail.

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source: Bloomberg (Keane, 4/12)