Dangerous Product Update: GM Ignition Switch Case - Victim’s Compensation Fund?

Lawmakers and victims have joined together calling for General Motors to set up a victim’s compensation fund for those impacted by the defective ignition switches that have caused serious and fatal auto accidents. According to U.S. Senator Claire McCaskill, chair of the Senate subcommittee on consumer protection and product safety, “it is now time for them to come clean, be transparent and most of all make all victims whole no matter when this deadly ignition caused heartbreak in their families…”  The Senator was quoted in this Chicago News Tribune story which detailed the need for restitution with the families and, possibly, criminal charges for those responsible.

Why the tough talk?  Because it appears from the recently revealed evidence that GM intentionally misled government regulators and its customers.  Remarkably, GM decided not to replace the switch in 2005 when it could have at cost of about $1 per car. In 2006, GM changed the faulty ignition switch in some cars, but did not change its identifying part number, which McCaskill said showed an intent to deceive.  At least 13 people were killed in accidents caused by switches that shut down cars.  McCaskill said on ABC’s This Week “You don’t need an investigation to understand that they had a defective switch and someone at GM in the engineering department changed that switch and didn’t change the part number. There is no reason to keep the same part number unless you’re trying to hide the fact that you’ve got a defective switch out there that in fact ended up killing a number of people on our highways.”

According to TIME, GM chief executive Mary Barra last week testified before Congress that “the company is considering compensating families” of the 13 people who died in accidents caused by faulty ignition switches in its Cobalt and other small-engine vehicles. Perhaps she is thinking this is generous of GM.  Hardly.

Dangerous Product Update: GM Faces Tough Questions Over Its Small Car Ignition Defect

Dubbed a “major embarrassment” to General Motors by The New York Times, Mary T. Barra, GM’s new chief executive, apologized for the tardy recall in February of Chevy Cobalt and Pontiac G5 vehicles due to faulty ignition switches. Several other models, including Saturn Ion and Saturn Sky, are involved in the recall. An apology provides little solace to the families of more than 300 persons who have died in these vehicles when the air bags failed to deploy. GM initially reported that 12 deaths might be linked to the faulty switch that can move from “run” to “off” while the vehicle is in motion. A bump of a key ring, a heavy key ring, or a rough road can jostle the ignition switch out of “run” position, which causes a sudden loss of power where the driver loses function of power steering and the airbags are disabled.

 As early as 2004, GM knew it had a problem with the Cobalt. In 2005, a 16 year old girl was fatally injured in a Cobalt where the airbags did not deploy when the car crashed into a tree. This was apparently the first death related to the defect, and GM knew about it. Not only was GM aware of deaths related to this defect, NHTSA, the federal safety regulators who are supposed to protect the consumer, is also culpable. NHTSA investigators took a close look at the cause of at least two Cobalt crashes that raised the possibility of defect, but failed to open a broader investigation. The deadly defect was swept under the carpet while lives continued to be lost in fatal car crashes.

 It was not until 2013, nearly 10 years after its first awareness of the defect, that GM hired an outside engineering firm which pointed to the ignition problem cited in a service bulletin sent to dealers in 2005. Unable to muster a vigorous defense, GM offered a second apology. Too little too late.

Dangerous Product Update: GM Auto Recall

According to Reuters, the United States Senate panel has scheduled a hearing for April 2 into how “General Motors Co. and federal regulators addressed concerns about malfunctioning GM ignition switches over the past decade, with vehicle recalls finally announced last month.”  The House will also hold hearings.   Last month, GM recalled 1.6 million cars due to concerns that the ignition switches could shut off the engine and make airbags inoperable.  The congressional panels are expected to ask exactly why GM waited 13 years to do something, since GM knew about these problems since 2001.

Sudden Acceleration Litigation Moves Forward

Toyota's recent victory in a California sudden acceleration trial is noteworthy.  But it's only good as far as it goes.  The case involved a new theory, relying not on an electronic defect but instead pointing towards the absence of a brake override system.   The incident occurred when a driver crashed into Noriko Uno, which propelled Uno's car into a sudden acceleration.  The jury placed blame at the hands of the driver, to the tune of $10 million, while hearing Toyota's theory that having been hit by a car, Ms. Uno must have inadvertently slammed on the gas pedal instead of the brake.

It's easy to offer opinions after the dust has settled, but one can't ignore that this case was not  an easy one for the plaintiffs.  The plaintiffs faced obstacles  that aren't ordinarily present in the electronic defect sudden acceleration case.   For example, they faced at least three significant challenges:  They have to convince the jury that the driver who crashed into Ms. Uno wasn't too blame; they had to overcome the theory about hitting the wrong pedal; and they had to convince the jurors that this wasn't a defect, but a failure to have the safer override system.  It was a valiant effort. They fought the good fight. And by taking a case that faced such challenges, you have to hand it to them for trying.

But all is not lost for plaintiffs injured as a result of sudden defect acceleration. In November, Toyota heads back to trial, this time in a bellwether case that they selected for trial. The plaintiff's case is the more straightforward electronic defect case. If Toyota loses this trial, it may be time for them to start thinking about a settlement strategy.

Important sudden acceleration automobile defect case set for trial

All eyes in the automobile defect world of product liability litigation will be on Los Angeles County Superior Court in the coming weeks. Toyota faces trial for the sudden acceleration defect: Norika Uno's  car accelerated to over 100 miles per hour in city streets, culminating in a crash that took his life. She leaves behind an aggrieved son and husband.

Toyota has paid over $1billion in settlements but here the plaintiffs and their lawyers are holding Toyota's feet to the fire. It's hard to tell if this one will go all the way through trial or if we are looking at a game of chicken. However it shakes down, it will be very interesting to see what happens.

From another case I have heard a 911 call from a driver who was in a car that had unintentionally accelerated and could not stop; it's the sound of terror. These types of defects should not be happening today.

Sometimes, but not always, the defect is that the accelerator gets caught on the floor. A driver might attempt to reach to the floor to un-stick the accelerator but this is easier said than done (you have to take your eyes off the road to do this).

LA Times reporters Jerry Hirsh and Ken Bensinger have recently reported on the Norkia Uno v. Toyota trial. I commend the article to you.