Letting the Light Shine In

The University of Texas at Austin women’s track coach has been struggling to regain the use of her legs following a rollover crash in a Lexus SUV in late 2002.

Bev Kearney, the first black women’s head coach to win a Division I team national title, suffered spinal cord injuries that left her temporarily paralyzed.  She has undergone surgeries and rehabilitation to regain use of her legs.  Two others were killed in that rollover.

After settling the matter, Kearney’s attorney has asked the Texas court to reopen the case and 15 others on the grounds that crash safety data may have been withheld by its parent company, Toyota, maker of the automobile.

It came about after Mark Saylor was driving a Lexus ES350 loaner from a dealer when suddenly the sedan starting racing out of control at more than 100 mph.  Saylor, an off-duty highway patrol officer in California, could not stop it.  He had three family members in the car and one of them made a frantic 911 call, but before anyone could do anything, the car crashed into another vehicle, killing Saylor and his family.

A Los Angeles Times review of National Highway Transportation Safety Administration (NHTSA) safety records found that since 2001 more than 1,000 Toyota and Lexus owners have reported sudden acceleration problems that have caused at least 19 deaths.  It also found that Toyota is a defendant in at least 10 lawsuits alleging unintended acceleration that caused five fatalities and four injuries; two of those suits are seeking class-action status.  Consumer Reports analyzed NHTSA data and found that Toyota had 40 percent more “unintended accelerator” incidents in its 2008 models than any other automaker.

Lexus and its parent company, Toyota, at first blamed faulty floor mates for the “unintended acceleration,” saying that they jammed the gas pedal wide open.  NHTSA called the situation “a very dangerous problem” and said that the remedy still remains to be determined.  In a news conference the day before Thanksgiving last year, Toyota said it will replace or modify gas pedals, replace floor mats and modify floor well padding and add new safety software to seven models, totaling 4.26 million cars and trucks.  Then in January, the automaker announced an unprecedented halt in sales of eight of its models, said to represent some two-thirds of Toyota’s brand sales in the U.S., because of sticking throttle issues.

This comes on the heels of Dimitrios Biller, 46, a former in-house Toyota lawyer, who filed a lawsuit (Biller v. Toyota Motor Corp., 2:09-cv-5429, U.S. District Court, Central District of California) alleging that the automaker didn’t fully disclose rollover crash test results to NHTSA as the government was trying to formulate new standards for roof strength. 

Biller alleged, “Defendants, are, and have, engaged in a systematic pattern and practice of discovery abuses and criminal acts against plaintiffs in litigation against the Toyota entities.”

Toyota responded that rollovers “are a rare event” among its 27 million vehicles, and says that Biller’s lawsuit is based on inaccurate and misleading allegations.  The company also says that the lawsuit violates the attorney-client privilege because Biller left the company with a $3.7 million severance payment that included non-disclosure conditions.

In October 2009, Biller had delivered to a Teas federal judge four boxes of documents that contained electronic data that may shed some new light on what happened and whether the manufacturer should be held liable, which his lawyers suggest could impact at least 300 accident cases involving Toyotas.  The outcome of the fraud lawsuit will determine who is right.

Having represented many injured drivers and passengers involved in rollovers, I can tell you that getting information from care manufacturers is not an open or easy process.  They guard the facts vital to an understanding of these cases on the basis of trade secrets, irrelevance or being overly broad in scope rather than voluntarily cooperating.  Plaintiffs’ lawyers find themselves going into court and fighting for every scrap of information they can get to try to prove their cases.

No one said that litigation is supposed to be easy, but lawyers and parties are entitled to fairness.  It should be an open process, if not for the public, then at least for the parties, so that a fair judicial determination can be made.  The case brought by Biller will see just how Toyota has been behaving over the years.

All product manufacturers must realize that they must be held accountable for their actions.  And they must do so with honesty and forthrightness.  Toyota U.S. Vice President bob Carter told the media the latest halt in sales is a measure “restoring confidence in Toyota” and to ensure customer safety.  It may turn out that Toyota has been on the up-and-up throughout the past rollover and recent sudden acceleration occurrences.  At the very least, the lawsuits will open the doors of the automakers to see how decisions are made and how serious safety concerns are to one of the world’s largest manufacturers.

Letting the light shine in is always good for consumers..  Secrecy is not healthy for the process because consumers need to be kept informed in order to make rational decision about the products they buy.  Transparency also enhances the quality of justice.