Mazda to recall 70K RX-8 sports cars for fuel pump defect, fire risk.

Automotive News (11/15, 188K) says Mazada will be issuing a recall for “about 70,000 RX-8 sports cars from the 2004-08 model years...because of an issue with fuel pump sealing rings that may leak and catch fire.” On Tuesday, the National Highway Traffic Safety Administration posted on its website, “The affected vehicles have fuel pump sealing rings that may deteriorate due to exposure to heat from the engine or exhaust pipe...which in the presence of an ignition source can increase the risk of a fire.”

        Additional coverage is provided by Reuters (11/15), Car Connection (11/15, 86K), and Law360 (11/15, 23K).

Fiat Chrysler asks some owners to return to dealers after software upgrade fails to fix gearshifts.

The AP (11/16, Krisher) reports Fiat Chrysler has asked about 29,000 owners, including 13,000 in the US, to return their 2014-2015 Jeep Grand Cherokees and the 2012-2014 Dodge Charger and Chrysler 300 to the dealers after a software patch “designed to fix confusing gear shifters on 1.1 million Fiat Chrysler vehicles didn’t work” on their cars. The AP adds that “the problem, reported in a document released this week by the National Highway Traffic Safety Administration, was discovered in a Fiat Chrysler audit.” 

A TRUE AMERICAN HERO - RIP

Clarence M. Ditlow III, Auto Safety Crusader, Dies at 72

By ROBERT D. McFADDENNOV. 11, 2016

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Clarence M. Ditlow III, the head of the Center for Auto Safety, in his Washington office in 2009.CreditMichael Temchine for The New York Times

Clarence M. Ditlow III, widely regarded as America’s foremost advocate for automotive safety, who championed seatbelts, airbags, electronics to avert crashes and campaigns to force the recall of millions of dangerously flawed motor vehicles, died Thursday night in Washington. He was 72.

His death, at George Washington University Hospital, was caused by cancer, said Daniel Becker, a friend and associate.

As head of the Center for Auto Safety, based in Washington, for 40 years, Mr. Ditlow exposed hundreds of automotive defects. He was instrumental in forcing manufacturers to recall the Ford Pintos with infamous exploding gas tanks, Toyotas that suddenly accelerated out of control and General Motors pickup trucks with sidesaddle gas tanks that blew up in collisions, killing more than 1,000 people.

With a budget of less than half the cost of one G.M. Super Bowl commercial, Mr. Ditlow took on auto industry giants in lawsuits that tightened standards for ignition systems, airbags and fuel efficiency; lobbied government agencies to ban driving while texting or using cellphones; and achieved “lemon laws” in all 50 states that made it easier for buyers to return defective vehicles.

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Continue reading the main sto“He was the nightmare of the misbehaving auto industry and the dream of safety-conscious motorists,” Ralph Nader, the consumer advocate and Mr. Ditlow’s mentor, said in an interview in October. “He was also honest, ethical and self-effacing.”

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Mr. Ditlow, far right, appeared with Toyota executives at a 2010 Senate hearing concerning the recall of Toyota vehicles with acceleration problems. CreditMichael Reynolds/European Pressphoto Agency

An engineer and lawyer, Mr. Ditlow collaborated with Mr. Nader on “The Lemon Book” (1980), on “The Lemon Book: Auto Rights” (1990) and on many safety articles. He also wrote about the tendency of some vehicles to roll over, to jump from Park into Reverse gear and to power off with a loss of all controls and airbags while being driven.

“When regulators sleep and auto companies place profits over safety, safety defects pile up,” Mr. Ditlow and Mr. Nader wrote in an Op-Ed article in The New York Times in 2014. “A record number of vehicles — more than 50 million — have been recalled this year, a result of congressional hearings and Justice Department prosecutions, which exposed a mass of deadly defects that the auto industry had concealed.”

Mr. Ditlow never achieved the fame of Mr. Nader, whose landmark book, “Unsafe at Any Speed: The Designed-in Dangers of the American Automobile” (1965), accused car manufacturers of hiding defects at the cost of untold lives. The book also prompted Congress to create what became the National Highway Traffic Safety Administration to enforce safety standards and supervise recalls.

But Mr. Ditlow carried to fruition many of the initiatives that Mr. Nader began after he and Consumers Union jointly founded the Center for Auto Safety in 1970. Mr. Ditlow, who became the center’s executive director in 1976, was instrumental, for example, in long campaigns to require that all motor vehicles have seatbelts and airbags.

Over four decades, Mr. Ditlow badgered the traffic safety administration for more stringent standards, saying its leaders were often political appointees reluctant to move against the powerful auto industry.

He also became the industry’s fiercest critic, issuing scathing reports on defective vehicles and related problems ranging from child car-seat flaws to dangerously designed engine mounts. He testified at scores of congressional hearings on safety and warranty issues, consumer protection, air pollution and fuel economy.

And he successfully pushed for myriad recalls by the traffic safety administration: There were 60 million vehicle recalls in the last year, including 11 million for defective ignition switches and millions more for defective Takata airbags. In 2014, 1.4 million G.M. cars were recalled for engine and airbag shut-offs; in 2013, two million Jeeps for exploding gas tanks; in 2010, seven million Toyotas for sudden acceleration. In the 1970s, 6.7 million Chevrolets were recalled for defective engine mounts, and 1.5 million Ford Pintos — half of all those produced — for fuel-tank fires in rear-end collisions.

In addition to millions of other recalls in the ’80s and ’90s, Mr. Ditlow and his organization achieved lemon laws in all 50 states to protect consumers. Over the last 25 years, he also served on the boards of Consumers Union, the environmental group Friends of the Earth and the Canadian highway and the auto safety organization Automobile Protection Association.

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At a news conference in 2014, Mr. Ditlow displayed a G.M. ignition switch similar to those linked to 13 deaths and dozens of crashes.CreditJ. Scott Applewhite/Associated Press

He often sought data under the Freedom of Information laws and sometimes found shocking unintended revelations. In 1978, he discovered a secret internal memo that raised questions about the safety of Firestone 500 steel-belted radial tires sold in the ’70s. A dozen deaths resulted from blowouts caused by tires that overheated. He pressed the issue, and 15 million tires were recalled.

“This year, 60 million vehicles are under recall,” Mr. Becker, director of the Safe Climate Campaign, a unit of the Center for Auto Safety, said in an interview in October. “The vast majority of the defects were discovered by Clarence and pursued by him to protect the driving public. Hundreds of thousands of people are alive today because of his work.”

Clarence Mintzer Ditlow III was born on Jan. 26, 1944, one of three children of Clarence Mintzer Ditlow Jr. and the former Myrtice Lamb, and grew up in Camp Hill, Pa. His father was a service manager at a Chevrolet dealership in Harrisburg, Pa.

He earned a bachelor’s degree in chemical engineering from Lehigh University in Pennsylvania in 1965. After working for five years as a patent examiner in the United States Patent Office, he received a juris doctorate from Georgetown University in 1970 and a master’s degree in law at Harvard in 1971.

Drawn by Mr. Nader’s crusading for consumers, Mr. Ditlow, in the late ’60s, joined what the press called “Nader’s Raiders,” young volunteers who investigated the Federal Trade Commission and in their reports found it to be “passive” and “ineffective.” A formal study by the American Bar Association then led to an overhaul that emphasized more aggressive consumer protections and antitrust enforcement.

Later, Mr. Ditlow joined another Nader spinoff, the Public Interest Research Group, which lobbied for consumer protections, environmental regulations and other progressive goals. He was a lawyer for the group until 1976, when, at Mr. Nader’s behest, he took over the Center for Auto Safety.

Mr. Ditlow, who lived in Washington, is survived by his wife, Marilyn J. Herman, and a sister.

He continued the fight into his last months. This year, he urged that auto executives who had concealed dangerous defects in their products be criminally prosecuted. And in a USA Today blog in August, he argued that the National Highway Traffic Safety Administration was endangering lives by not issuing standards on driverless vehicles.

“In its zeal to advance driverless vehicles, N.H.T.S.A. has forgotten its mission is to ensure safety, not promote gee-whiz vehicle technology to increase sales,” he wrote. “It is an inherent conflict of interest for any agency to both promote and regulate technology. N.H.T.S.A.’s deference to industry initiatives in lieu of safety standards represents an abdication of regulatory responsibilities that is unprecedented in the history of the agency.”

Mayo Clinic Warns Heart-Surgery Patients of New Infection Risk

Consumer ReportsNovember 9, 2016

The Mayo Clinic is notifying 17,000 heart-surgery patients across the country about a rare but serious infection risk related to a common surgical device (called a heater-cooler) used in open-chest operations. The hospital—which has major campuses in Arizona, Florida, and Minnesota—has identified one such infection in a heart-surgery patient at its St. Mary's Hospital in Rochester, Minn., and has since found many of its heater-coolers contaminated with the microbe.

Consumer Reports learned of the Mayo Clinic's actions, which have not been previously reported, when a patient shared a letter from the hospital with us.

The Food and Drug Administration says that 16 U.S. hospitals, across 10 states, have reported similar heater-cooler incidents. But the agency has not named those hospitals or said which states they're located in, and just a handful have publicly acknowledged the problem.

The Mayo Clinic's letter tells patients that they should contact their primary care doctor if they have questions or experience any symptoms linked to the infection, including night sweats, substantial weight loss over several months, and a persistent, unexplained fever. It also says patients can call a Mayo Clinic nurse at 800-951-3836.

The hospital's decision to send that letter to every patient exposed to its heater-coolers was made following guidelines issued in October 2016 by the Food and Drug Administration and the Centers for Disease Control and Prevention for addressing the problem, which first emerged in 2015.

Heater-coolers help regulate a patient’s body temperature during surgery. But owing to a design flaw, the machines can spray deadly bacteria—most often a bacteria called non-tuberculosis mycobacteria (NTM), but also other bacteria that grow in water—through their exhaust fans and into patients’ open chest cavities during surgery.

That risk is very rare. But the machines are ubiquitous, the confirmed cases are mounting, and the CDC recently linked several separate NTM outbreaks to the same source of contamination: a manufacturing facility owned by the European company LivaNova, which produces 60 percent of all heater-coolers used in the U.S.

Like previous advisories, the October guidelines call on hospitals to take steps to reduce the risk of infection from the devices. Unlike those earlier alerts, the new ones also advise hospitals that use the LivaNova brand heater-coolers to test their machines for contamination and to develop protocols for alerting patients if a device is found to be contaminated or if an outbreak occurs.

What Heart Surgery Patients Need to Know

• If you are undergoing open chest surgery, ask your physician whether a heater-cooler device, or HCD, will be used for the operations, and if so, whether it has been tested for contamination or implicated in any outbreaks.
• If you’ve already had heart surgery, you and your primary-care doctor should be on the lookout for signs of infection, including irritation around the surgical incision, and unexplained fevers, night sweats, muscle aches, or weight loss, which can emerge as long as four years after surgery.

Alerting Patients

The Mayo Clinic has been using the LivaNova devices since 2012. The hospital convened an emergency meeting at 6:30 a.m. the day after the FDA advisory. Ultimately doctors there decided that, based on the one confirmed case, every patient who had ever been exposed to a heater-cooler at any Mayo hospital should be notified of the risk.

“We just felt strongly that every patient that had had cardiac surgery that could have been exposed to this bacteria should know about it,” says Brad Narr, M.D., Mayo’s chief of anesthesiology and chair of its Surgical and Procedural Committee.

That decision stands out because experts have been divided over when—or even whether—to warn patients about the problem. The machines are used in hundreds of thousands of operations each year, and some doctors argue that notifying all patients would be overly expensive and could create needless panic.

But others point out that unless patients are alerted, they won’t know what symptoms to watch out for—and that lack of awareness could delay treatment and cause worse, potentially devastating, outcomes.

At a meeting in June, doctors from both sides of the issue debated what number of confirmed NTM infections should count as an “outbreak,” and thus trigger a response from health officials. Some said one infection, and others said two.

"The Mayo Clinic's response is in line with what we'd like to see all hospitals do," says Lisa McGiffert, director of Consumer Reports' Safe Patient Project. "Health officials have not acted quickly or aggressively enough on this issue, and as a result, too many patients are still being exposed to risk without their knowledge or consent."

Heater-Cooler Alternatives

Hospitals everywhere are struggling to address the heater-cooler concern. Some have taken extreme measures to remove the devices from their operating rooms by drilling holes in the walls and creating separate containment areas that can be connected to the larger surgical theater through a hose.

For now, the Mayo Clinic has resorted to using older, more primitive heater-cooler devices—but only to replace those LivaNova machines that test positive for contamination. The older devices are messier and less efficient, Narr says, in part because they require the use of additional non-sterile equipment, including ice machines, which can introduce additional contamination risks. What’s more, the Mayo Clinic had just six of them in storage.

System-wide, Narr says that Mayo has about 23 or 24 LivaNova heater-coolers, which it uses not only for open-chest surgery but also for some patients on life support in its intensive care units. “We can’t take all the [LivaNova devices] out of practice immediately, because there’s nothing on the market that can respond to our volume,” Narr says.

Eventually, the hospital does plan to replace all of its LivaNova heater-coolers with a different brand. But as Narr acknowledged, even that move may not resolve the problem. All modern heater-coolers have the same basic design, and thus are vulnerable to the same device contamination.

“That’s absolutely something we’ve discussed,” Narr says. “Is it a problem with this device or with this technology? And are we deluding ourselves in thinking that if we spend this amount of money going forward we can fix it?” The answer, he says, remains to be seen.  

Mayo Clinic Warns Heart-Surgery Patients of New Infection Risk

Consumer ReportsNovember 9, 2016

The Mayo Clinic is notifying 17,000 heart-surgery patients across the country about a rare but serious infection risk related to a common surgical device (called a heater-cooler) used in open-chest operations. The hospital—which has major campuses in Arizona, Florida, and Minnesota—has identified one such infection in a heart-surgery patient at its St. Mary's Hospital in Rochester, Minn., and has since found many of its heater-coolers contaminated with the microbe.

Consumer Reports learned of the Mayo Clinic's actions, which have not been previously reported, when a patient shared a letter from the hospital with us.

The Food and Drug Administration says that 16 U.S. hospitals, across 10 states, have reported similar heater-cooler incidents. But the agency has not named those hospitals or said which states they're located in, and just a handful have publicly acknowledged the problem.

The Mayo Clinic's letter tells patients that they should contact their primary care doctor if they have questions or experience any symptoms linked to the infection, including night sweats, substantial weight loss over several months, and a persistent, unexplained fever. It also says patients can call a Mayo Clinic nurse at 800-951-3836.

The hospital's decision to send that letter to every patient exposed to its heater-coolers was made following guidelines issued in October 2016 by the Food and Drug Administration and the Centers for Disease Control and Prevention for addressing the problem, which first emerged in 2015.

Heater-coolers help regulate a patient’s body temperature during surgery. But owing to a design flaw, the machines can spray deadly bacteria—most often a bacteria called non-tuberculosis mycobacteria (NTM), but also other bacteria that grow in water—through their exhaust fans and into patients’ open chest cavities during surgery.

That risk is very rare. But the machines are ubiquitous, the confirmed cases are mounting, and the CDC recently linked several separate NTM outbreaks to the same source of contamination: a manufacturing facility owned by the European company LivaNova, which produces 60 percent of all heater-coolers used in the U.S.

Like previous advisories, the October guidelines call on hospitals to take steps to reduce the risk of infection from the devices. Unlike those earlier alerts, the new ones also advise hospitals that use the LivaNova brand heater-coolers to test their machines for contamination and to develop protocols for alerting patients if a device is found to be contaminated or if an outbreak occurs.

What Heart Surgery Patients Need to Know

• If you are undergoing open chest surgery, ask your physician whether a heater-cooler device, or HCD, will be used for the operations, and if so, whether it has been tested for contamination or implicated in any outbreaks.
• If you’ve already had heart surgery, you and your primary-care doctor should be on the lookout for signs of infection, including irritation around the surgical incision, and unexplained fevers, night sweats, muscle aches, or weight loss, which can emerge as long as four years after surgery.

Alerting Patients

The Mayo Clinic has been using the LivaNova devices since 2012. The hospital convened an emergency meeting at 6:30 a.m. the day after the FDA advisory. Ultimately doctors there decided that, based on the one confirmed case, every patient who had ever been exposed to a heater-cooler at any Mayo hospital should be notified of the risk.

“We just felt strongly that every patient that had had cardiac surgery that could have been exposed to this bacteria should know about it,” says Brad Narr, M.D., Mayo’s chief of anesthesiology and chair of its Surgical and Procedural Committee.

That decision stands out because experts have been divided over when—or even whether—to warn patients about the problem. The machines are used in hundreds of thousands of operations each year, and some doctors argue that notifying all patients would be overly expensive and could create needless panic.

But others point out that unless patients are alerted, they won’t know what symptoms to watch out for—and that lack of awareness could delay treatment and cause worse, potentially devastating, outcomes.

At a meeting in June, doctors from both sides of the issue debated what number of confirmed NTM infections should count as an “outbreak,” and thus trigger a response from health officials. Some said one infection, and others said two.

"The Mayo Clinic's response is in line with what we'd like to see all hospitals do," says Lisa McGiffert, director of Consumer Reports' Safe Patient Project. "Health officials have not acted quickly or aggressively enough on this issue, and as a result, too many patients are still being exposed to risk without their knowledge or consent."

Heater-Cooler Alternatives

Hospitals everywhere are struggling to address the heater-cooler concern. Some have taken extreme measures to remove the devices from their operating rooms by drilling holes in the walls and creating separate containment areas that can be connected to the larger surgical theater through a hose.

For now, the Mayo Clinic has resorted to using older, more primitive heater-cooler devices—but only to replace those LivaNova machines that test positive for contamination. The older devices are messier and less efficient, Narr says, in part because they require the use of additional non-sterile equipment, including ice machines, which can introduce additional contamination risks. What’s more, the Mayo Clinic had just six of them in storage.

System-wide, Narr says that Mayo has about 23 or 24 LivaNova heater-coolers, which it uses not only for open-chest surgery but also for some patients on life support in its intensive care units. “We can’t take all the [LivaNova devices] out of practice immediately, because there’s nothing on the market that can respond to our volume,” Narr says.

Eventually, the hospital does plan to replace all of its LivaNova heater-coolers with a different brand. But as Narr acknowledged, even that move may not resolve the problem. All modern heater-coolers have the same basic design, and thus are vulnerable to the same device contamination.

“That’s absolutely something we’ve discussed,” Narr says. “Is it a problem with this device or with this technology? And are we deluding ourselves in thinking that if we spend this amount of money going forward we can fix it?” The answer, he says, remains to be seen.  

Jury awards $70 million in talcum powder lawsuit against J&J.

ABC World News Tonight (10/28, story 10, 0:25, Muir, 14.63M) reported that a jury in St. Louis awarded a woman $70 million “after she sued Johnson & Johnson, alleging that years of using the company’s iconic baby powder had caused ovarian cancer.” According to NBC Nightly News, (10/28, story 8, 2:15, Holt, 16.61M) this is the “fourth time” a jury has held “that Johnson & Johnson failed to inform the public about a possible link between ovarian cancer” and talcum powder. Johnson & Johnson “is appealing three decisions, including nearly $200 million in damages.” USA Today (10/28, Yu, 6.42M) reported that while “some studies suggest a link between talcum powder and ovarian cancer,” most scientists “say it’s not clear yet whether products containing talc can cause the disease.” Additional coverage is provided by the AP (10/28) and the NBC News (10/28, 5.08M) website. 

Amtrak agrees to $265 million settlement for fatal Philadelphia crash.

The New York (NY) Times (10/27, Mele, Subscription Publication, 13.42M) reports that on Thursday, Amtrak agreed to pay $265 million to settle claims regarding a train accident that resulted in the deaths of eight passengers and injuries to more than 200 people. The Times explains the crash occurred in May 2015 when the train took a tight curve at 106 miles-per-hour, which was twice the speed limit. The Times says lawyers believe the figure is the largest settlement in a railroad disaster in US history.

        The Wall Street Journal (10/27, Calvert, Subscription Publication, 6.37M) reports David C. Cook, one of the plaintiffs’ lawyers, said that if the damages exceed $265 million, all of the individual claims will be proportionately lowered. The Journal says the large award was possible because Congress voted to increase the federal damages cap for railway accidents to $295 million from its previous level at $200 million. The piece explains the $265 million figure is the present value of $295 million in 2.5 years, the minimum length lawyers believe will be needed to sort through the individual claims. The Philadelphia Inquirer (10/27, Mondics, 586K) reports the settlement was “reached with unusual speed,” and another of the plaintiffs’ lawyers, Robert Mongeluzzi, called the speed with which an agreement was reached, “historic.”

        The AP (10/27, Dale) reports the crash occurred because engineer Brandon Bostain “didn’t realize where he was and accelerated full-throttle to 106 mph instead of slowing down for the curve’s 50 mph speed limit.” Bostain was said to be distracted by reports that “a nearby train had been hit by a rock.” New Jersey Local News (10/27, Gallo, 747K) reports the National Transportation Safety Board also faulted a lack of Positive Train Control as contributing to the accident.

        Reuters (10/27, Kearney) reports Amtrak Spokesman Craig Schulz said in a statement, “Amtrak appreciates the guidance and involvement of the Court in this matter.” He added, “Because of the ongoing nature of the litigation Amtrak will have no further comment at this time.” 

Atlee Hall  Attorney Jaime Jackson Discusses the National High Traffic Safety Administration Highly Automated Vehicle Guidelines

Speaking to a national audience of attorneys gathered in Santa Fe, New Mexico on October 6, 2016, Atlee Hall partner, Mr. Jackson discussed the National Highway Traffic Safety Administrations (“NHTSA”) recent publication in September of its guidelines on highly automated vehicles. Mr. Jackson outlined the new guidelines which include a “voluntary” 15 point checklist for auto manufactures. While, these guidelines are a good start, they fall far short of protecting the American Public.

Mr. Jackson stated, automated vehicles hold great safety promise and that autonomous vehicles may be the most significant technological development we’ll see in our lifetime, but at the very moment when we need the National Highway Traffic Safety Administration (NHTSA) to provide thoughtful, thorough regulatory guidance, it is ignoring its Congressional mandate and is passing the buck to the states.

Instead of providing us with one set of consistent, national regulations that prioritize transparency, safety, and accountability, Mr. Jackson said, NHTSA is pushing us into a patchwork of state-by-state rules that will create confusion when clarity is badly needed.

This exciting technology has the power to improve highway safety, but not if the automobile industry is left to its own devices. From faulty airbags to dangerous ignition switches, hidden devices to conceal exhaust levels, and malfunctioning gas pedals, auto manufacturers have a well-documented record of carelessness and negligence.

Now, because of NHTSA’s failure, auto makers will be able to duck responsibility if their autonomous vehicles malfunction and cause injury or death. Consumers will be in a horror scene from a sci-fi movie every time an autonomous vehicle is on the road.

Mr. Jackson stated, that NHTSA is making a grave mistake by failing to uphold its federal obligation to ensure transparency, safety, and accountability at this critical moment and urged them to reconsider their reckless approach immediately.

NHTSA confirms 11th US fatality linked to Takata airbag inflators.

ABC World News Tonight (10/20, story 8, 0:20, Muir, 14.63M) reported US Federal highway officials have confirmed another fatality “linked to a Takata air bag inflator in a 2001 Honda Civic that had been recalled in 2008, but was never repaired.” NBC Nightly News (10/20, story 6, 0:25, Holt, 16.61M) reported the National Highway Traffic Safety Administration “says a 50-year-old woman died from injuries in a crash on September 30th,” which NBC notes is the “11th confirmed US fatality tied to ruptures of Takata air bag inflators.” MLive (MI) (10/20, 609K) mentions Transportation Secretary Anthony Foxx said in June, “With as high as a 50 percent chance of a dangerous air bag inflator rupture in a crash, these vehicles are unsafe and need to be repaired immediately,” and has continually encouraged motorists go “straight to a dealer to have them repaired immediately, free of charge.”

        Additional coverage is provided by the AP (10/20), Automotive News (10/20, Beene, 185K), Reuters (10/20), Bloomberg News (10/20, Lippert, 2.49M), the Huffington Post (10/20, 224K), Riverside (CA) Press Enterprise (10/20, Brooks, 328K), KCAL-TV Los Angeles (10/20, 176K), the Los Angeles (CA) Times (10/20, Press, 4.52M), and KABC-TV Los Angeles (10/20, 668K). 

Self -Driving Cars and Crash Avoidance Systems: The Future of Car Crashes”.

                                                                                      Jaime D. Jackson

                                                                                      Atlee Hall, LLP

                                                                                      jdjackson@atleehall.com

                                                                                      www.atleehall.com

Crash Avoidance Systems (CAS) or Crash Avoidance Technology (CAT) is now becoming widely implemented in production vehicles. CAT has already had an impact on how car crash cases are litigated, and who the proper defendants may be, and will continue to have a more dramatic impact as this technology continues to be developed and implemented.  THIS IS NOT THE FUTURE THIS IS NOW!

The wide-spread implementation of  Crash Avoidance Systems (CAS) otherwise known as Crash Avoidance Technology (CAT)  will revolutionize the concept of driving. It could be the first step toward autonomous driving, perhaps along with the many currently-performing  driverless car projects, including Google and Uber, but more importantly it could be a huge step toward increased road safety if this technology is tested and implemented in the right way. All CAS and CAT  systems have a clear purpose of not only driver safety, but complete road safety. CAS is not just some idealized goal to be accomplished in the future, but it is happening right now. Although we might best classify CAS and CAT as within the first stage of implementation, automotive manufacturers and suppliers are moving quickly to get this technology on the road, and the industry push to driverless cars is on full force..

Automotive manufacturers and suppliers are moving quickly to get this technology on the road. It is expected there will be more that 100,000 autonomous cars on American highways by 2025. We are already seeing these ads on TV, as there is a push to be first to market or on the leading edge. Chevy put out new commercials about Forward Collision Warning (“FCW”) being “available” on its new Chevy Equinox.^[1] These ads show focus groups being introduced to FCW on the Equinox. A focus group member says “Maybe Ford should try to keep up” after the moderator tells them that the Ford Edge does not have Forward Collision Warning. Think about “failure to equip cases” against auto manufacturers, as safety should not be an option.   Mercedes has a demolition derby ad for its 2014 M –Class where the announcer states, “Its almost as if it couldn’t crash even if it tried^[2]

As the automotive industry has shown, flaws and defects in vehicles continue, For example, in May, Honda recalled some 2014-2015 Acura MDX 2WD and AWD, RLX and 2014 Acura RLX Hybrid vehicles, because its Collision Mitigation Braking System could incorrectly interpret certain roadside objects such as metal fences or metal guardrails as obstacles and unexpectedly apply the brakes. Over three miles of wiring, weighing more than 150 pounds, is in a modern car.  It, and its associated connectors, is reportedly the third heaviest component in a car, after the engine and transmission (Car & Driver, p. 34, December 2013) 

In order to better understand how crash avoidance systems and crash avoidance technology will effect car crash litigation, it is first important to gain an understanding of what this technology is, what its function is and how it effects the drivability of the car. This technology has an effect on how these cases are prosecuted, for instance what exactly are the negligence claims against the driver, may have a different flavor, for example failing to properly respond to the forward collision warning (FCW) or the Side View Assist (SVA). The distracted driver?  Technolgy will effect how these cases are defended, for example, a defense may be, “this rear end crash was not the driver’s fault because the car was equipped with Automatic Emergency Braking (AEB), that did not engage in time to avoid the crash. And perhaps most importantly, who is responsible for the crash? The driver? The automated vehicle that did not avoid the crash? Both? This is a whole somewhat new area of the law and litigation. One must also consider litigation against the auto manufacturers for failing to equip its vehicles with Crash Avoidance Technologies that have been available for years, and then if the technology fails or malfunctions, or does not perform properly due to software errors or defects, may subject the auto manufacturer to auto product liability claims.  

Current Crash Avoidance Technology (CAT)

The Insurance Institute for Highway Safety (IIHS) has created a program for evaluating the performance of front crash prevention systems to raise consumer awareness of safety options and encourage auto manufacturers to adopt and continue developing this technology. (see, http://www.iihs.org/iihs/ratings/crash-avoidance-features) The program ranks vehicles based on the availability and functionality of  crash avoidance systems. A higher ranking is given to vehicles that utilize crash avoidance technology.

Forward Collision Warning and Automatic Emergency Braking

Forward Collision Warning, (FCW) the most passive of the front crash avoidance technology, which uses camera, radar, and/or laser equipment for object recognition and speed detection, and alerts the driver via visual, audio, or haptic warning to apply the brakes when the relative speed between a vehicle and object in the road presents a risk of impending collision.

Automatic Emergency Braking, (AEB) the most active of the front crash avoidance technology, which automatically engages the full braking potential of a vehicle to either completely prevent a frontal collision or slow the vehicle down to mitigate severity when an imminent collision is detected. AEB is a camera-based or radar-based system that utilizes object recognition and speed detection to determine whether the relative speed between a vehicle and object in the road presents a risk of impending collision. A camera-based system uses a mounted camera with object recognition on the windshield behind the rearview mirror, and the radar-based system uses a 24 GHz medium-range sensor connected to a warning device.

In conjunction with FCW, the Automatic Emergency Braking System (AEBS) or Predictive Emergency Braking System (PEBS) activates automatically when the FCW system determines that the distance between the driver and a vehicle or object in road is becoming critically short. When a critical situation is detected, the system may alert the driver, may initiate partial braking, and may prepare the brakes for emergency stopping in such a way that the driver may engage full braking potential as soon as the slightest pressure is applied to the brake pedal.

On the other hand, something to consider is that while forward collision warning is intended to alert the driver to an impending collision it can also be distracting or create a false sense of security or in attentiveness because the driver believing the car will stop itself or avoid a crash.

Dynamic Brake Support

Other crash avoidance technologies include Dynamic Brake Support, a hybrid of passive and active front crash avoidance technology, which pre-conditions the brakes when a collision is detected so that full braking power is applied with even slight force to the brake pedal, to shorten the vehicle’s stopping distance.

Pedestrian Detection Systems

Some vehicle also include Pedestrian Detection systems which warn the driver or automatically engage emergency braking when pedestrians are detected either in the same lane as the vehicle or to be moving dangerously into this direction. BMW and Toyota are currently implementing this technology.

Crash or Injury Mitigation Systems

Apart from crash avoidance technology, suppliers and manufacturers are working on adaptive restraint systems and other pre-crash systems. TRW, for example, is producing the Active Control Retractor, a system that provides full or limited reversible belt retraction when dangerous situations are detected. Similarly, Mercedes has implemented a system called Pre-Safe into their latest line of production, a system which automatically engages when an imminent collision is detected and prepares the vehicle’s occupants by tightening the front seat belts, adjusting the front head restraints and passenger seats, and closing the windows and sunroof. It is important to know in whether your client’s vehicle was equipped with such safety systems when analyzing their injuries.

Adaptive Cruise Control

Adaptive Cruise Control (ACC) technology is another area that will continue to flourish. These systems automatically engage the vehicle’s brakes and acceleration to control the distance between the driver and other vehicles or objects on the road. For example, when the cruise control is set on the highway and a slower moving car merges ahead, a vehicle will automatically engage the brakes to prevent or mitigate a collision. When that car merges back over, the ACC system will bring the vehicle back up to speed. TRW’s system utilizes a 24 GHz ISM frequency band radar sensor to detect relative speeds between a vehicle and object in the road. Bosch is also producing ACC systems, and manufacturers such as Infiniti, BMW, Opel, Cadillac, Jeep, Dodge, Ford, and Toyota have already designed their newest models with this safety feature.

A sub-system of the ACC technology, called the Stop-and-Go system by some manufacturers, is designed for use in traffic jams, and will automatically accelerate, steer within the same lane, and bring the vehicle to a stop. The driver’s vehicle will basically follow the vehicle in front of it as long as it is in the same lane. Accordingly, when the Stop & Go feature is engaged in a traffic jam and a vehicle ahead merges into a separate lane, your vehicle will begin to follow the next-in-line forward vehicle. The system developed by Bosch will automatically activate, when the ACC function is being used, at speeds below 20 mph. Bosch has stated that “[i]n the following years, the system will be enhanced to cover ever-faster speeds and more complex driving situations, including automatic lane change.” Manufacturers including VW, BMW and Jeep are currently utilizing this feature in their 2015 production line.

Lane Departure Assist Systems

Additionally, Lane Assist systems, including such technology as Lane Departure Warning (LDW), Lane Keeping Assist (LKA), and Lane Centering Assist (LCA), are all designed to promote lateral safety. LDW is a camera-based system that provides a driver with visual, audio, or haptic (involving a vibrating steering wheel or seat) warning when the driver’s vehicle unintentionally crosses a road lane marking or the edge of the road. LKA is also a camera-based system and is designed to utilize electronically powered steering to provide counter-steering torque to assist the driver in moving back into the center of the lane. LCA is essentially an LKA system, except that its purpose is to continually assist the driver in keeping the vehicle in the center of the lane. To prevent misuse of the system for autonomous driving, both the LKA and LCA employ hands-off detection systems. Furthermore, for safety reasons, both the LKA and LCA are designed to be easily overruled by the driver. Automotive suppliers producing this technology include TRW and HELLA. Manufacturers currently implementing Lane Assist technology include Infiniti, BMW, Opel, Mercedes, Cadillac, Jeep, Hyundai, Honda, Ford, and Toyota.

Similar to the Lane Assist systems, Side View Assist (SVA) systems promote lateral safety by continually monitoring a range of area alongside and diagonally to the rear of the vehicle through an ultrasonic sensor. When another vehicle is situated in the monitored area, a warning LED light may display in the driver’s side mirror. If the driver uses a turn signal while a vehicle is in the monitored area, an audible warning will activate. The SVA system is not activated by stationary roadside objects, such as guardrails, poles, or parked vehicles. Bosch is currently producing SVA systems, and manufacturers including Infiniti, Volvo, Mercedes, Cadillac, Jeep, Hyundai, Honda, GM  and Ford, have implemented similar technology into their current line of production.

Back Up Systems and Rear View Safety

We will also be seeing a big jump in rearview safety, as NHTSA has issued a rule under the Federal Motor Vehicle Safety Standards (FMVSS) that will require all new vehicles weighing less than 10,000 pounds to have rearview visibility systems giving the driver a 10-foot by 20-foot zone of vision directly behind the vehicle while backing up.[3] Although the rule does not explicitly mandate the use of cameras to achieve this goal, the most practically available means of compliance would require auto manufacturers to install rearview cameras. NHTSA has included a phase-in period to ease the burden on manufacturers. For new vehicles manufactured after May 1, 2016, but before May 1, 2017, 10% of all new vehicles must be in compliance; 40% new vehicles manufactured after May 1, 2017, and before May 1, 2108, must be in compliance; and, finally, for new vehicles manufactured after May 1, 2018, 100% of a manufacturer’s fleet must be in compliance with NHTSA’s rearview visibility requirements.[4] NHTSA estimates that 58 to 69 lives will be saved each year, not including injuries prevented, once the entire on-the-road vehicle fleet is equipped with rearview visibility systems that meet these requirements.[5]

Parking Assist Systems

Parking Assist systems, such as Parking  Assistant, Parking Aid, and Rear Cross Traffic Alert, are all designed to promote safe backing up techniques. The Rear View System complements a normal rear-view camera with an ultrasonic sensor, giving the driver the ability to see an image of what is behind the vehicle as well as the distances of objects behind the vehicle. Parking Assistant utilizes an ultrasonic sensor and calculates the best path into a parking spot. Once found, the system alerts the driver to press a button to park. The driver will still have to engage the gas and brakes, but the steering will be hands-free. Parking Aid gives the driver an alert when ultrasonic sensors in the front and rear of the vehicle detect an object within 250cm of the vehicle. The Rear Cross Traffic Alert system issues an audible or visual warning to the driver when the vehicle is backing out of a parking space and other vehicles are crossing to the right or left behind the driver’s vehicle.

First Licensed Autonomous Commercial Truck

On May 5, 2015, Nevada became the first state to license an autonomous commercial truck to operate on a US public highway.[6] The first-licensed Freightliner Inspiration Truck, manufactured by Daimler Trucks North America (DTNA), underwent over 10,000 miles of testing in Papenburg, Germany, before receiving a special operating license from the Nevada Department of Motor vehicles.[7] Although the truck is not completely autonomous, DTNA categorizes it as a Level 3 on NHTSA’s five-level (0 to 4) scale of autonomous vehicle operating systems.[8] “Vehicles at this level of automation enable the driver to cede full control of all safety-critical functions under certain traffic or environmental conditions and in those conditions to rely heavily on the vehicle to monitor for changes in those conditions requiring transition back to driver control.”[9] According to DTNA, autonomous vehicles will allow their drivers to work more efficiently by, for example, handling logistical tasks, including scheduling and routing.[10]

Advanced Lighting Systems

Intelligent Headlight Control systems utilize a video camera to measure ambient brightness and estimate the distance from vehicles in front and oncoming traffic. Bosch’s system includes three different functions: the driver may set the high beams to switch on or off automatically depending on whether other vehicles are detected; the driver may set the high beams to continually adjust between low and high beam levels depending on the distance between the driver’s vehicle and other vehicles; or the driver may set the high beams so that they automatically tilt either vertically or horizontally depending on where other vehicles are located.

Night vision systems utilize either an active infrared light invisible to humans or a thermographic camera to provide the driver on a video screen the ability to see greater distance than is possible with conventional low beam lights

Additional Features

Road Sign Recognition systems utilize a video camera to detect speed limit road signs and then display the speed limit in the form of a symbol in the cockpit of the vehicle. The driver has an option to employ an audible warning when the vehicle’s speed exceeds the speed limit.

Driver Drowsiness Detection is a system that identifies when a driver does not steer for a brief period of time and then makes an abrupt correction to the steering. The system analyzes the frequency and strength of the driver’s reactions, as well as other data such as vehicle speed, time of day and use of other indicators, to calculate a threshold for when to engage warning signals. Warning signals may be visual or audible to remind the driver of the danger of nodding off at the wheel.

Self Driving or Autonomous Vehicles

The crash avoidance technology outlined above are the fundamental building blocks to driverless cars. While perhaps we have seen in movies or on television, “self driving cars” for years now, this technology already exists and has existed for some time. Google and major car manufacturers are currently test-driving and developing driverless cars. It is expected there will be more that 100,000 autonomous cars on American highways by 2025. This will greatly impact liability and the law of car crashes moving forward.  Law Schools are  already teaching  courses on the law of autonomous driving. In preparation for the widespread use of self-driving cars, states are beginning to pass autonomous vehicle laws. The National Highway Traffic Safety Administration (NHTSA) is currently researching autonomous vehicle technology to develop appropriate regulations.

Generally speaking autonomous, in otherwords, self driving vehicles utilize technologies that navigates, detects traffic, and measures and analyzes the surroundings through the use of radar sensors, laser rangefinders, video cameras, global positioning systems (GPSs), and maps. The laser rangefinders map out the driving environment, the cameras and vehicle radars . . . detect potential obstacles, and the GPS determines the location of the vehicle to help it stay on the correct path.

Governments New Highly Automated Vehicle Guidelines Fail to Protect the American Public

The recent guidelines published by the National Highway Traffic Safety Administration NHTSA abdicate its mandate which would have resulted in thoughtful, thorough, national regulations that ensure, transparency, safety, and accountability, instead they are simply deffering to the industry to regulate itself and passing the buck down to the states. The guidelines clearly lack legally enforceable regulations and may allow the possibility of states  weakening  existing liability laws that protect consumers  and  permit manufacturers of unsafe and malfunctioning  vehicles to escape responsibility for harm caused when a highly automated vehicle (HAV)  crashes.

NHTSA must not delegate its regulatory responsibilities to the states. NHTSA must issue a minimum federal performance standard for Highly Automated Vehicles (HAV’s), and make clear there is no preemption. Designers and manufacturers must be held accountable for any harm HAVs cause.

This announcement should not be seen as an alternative to comprehensive safety standards, thorough oversight and strong enforcement. The promising benefits of HAVs are great, but the potential problems are too serious and the public safety risks are too momentous to be left to industry alone. Recent incidents involving the recall of tens of millions of vehicles and needless deaths and injuries due to faulty General Motors’ ignition switches, dangerous Takata airbags and cheating emissions systems in Volkswagen vehicles highlight how the industry easily conceals problems from both the public and the government.

The Department of Transportation (DOT) must use its federal regulatory authority to assure the American public of the safety of HAVs. Safety performance standards encourage competition among automotive companies because they help to assure a market for the real innovators and suppliers. The manufacturers always complain about new federal protections, but HAVs are a whole new technology with great promise but also with the potential for serious public harm.

The advent of this new technology and its release is happening so quickly that the NHTSA claims it is not ready to issue minimum regulatory performance standards. NHTSA has surrendered its Congressional mandate to manufacturers and the States. This is abhorrent of the National Traffic Safety Act. In doing so, it appears that we’re heading toward a hodge-podge of state regulations or no regulation whatsoever.

The addition of HAVs to the marketplace  represents a brand new area in which vehicle manufacturers will compete for sales.  There are billions of dollars of profits at stake. The more “autonomous” features that are offered, the greater the marketing opportunities. This certainly explains the frenzy of car companies to market each feature and to be the “first” with the “most” automated features.

Those who would market and profit from this technology – vehicle manufacturers and their suppliers – have organized major lobbying efforts suggesting that laws should be passed granting them immunity and shielding them from liability when injuries and deaths happen because of the failure of this new technology. They want taxpayers and state health care systems to fund their mistakes. That's not fair!

If corporations are confident that their highly automated vehicles will work properly and safely, why do they want immunity? Why should this industry get blanket protection?  Why should they even be worried about having to accept responsibility if their technology fails? Because history has proven that vehicle design changes, and especially those involving new technology, can cause injuries and deaths.

In their rush to introduce as many computer driven safety features as possible, and reap the profits of increased sales, car manufacturers must not put vehicles on our highways unless each feature has been properly designed and fully tested to be certain of their effectiveness.  To fail to do so would surely expose the motoring public to new and unidentifiable risks of injury and death.

Without well thought out regulations, the marketplace must  demand that each company that participates in the design, manufacture or sale of highly automated vehicles commit – publicly – to take full responsibility, including accepting legal liability – for collisions and their consequences when such features fail.

Given the extensive deference the NHTSA has shown to the industry when it comes to the safety of HAVs, the industry must chose to accept responsibility and accountability for the self-driving vehicles it puts on America’s highways and to which American citizens entrust the lives of our families. As companies work to develop HAVs and  collision avoidance technology (CAT) such as “lane departure warnings,” “lane departure steering control,” “auto brake features,” “frontal object detection,” “rearward object detection,” and “auto pilot,” it has become increasingly clear that consumers are totally reliant on manufacturer’s skills and willingness to provide the safest available systems. While the industries’ efforts, as well as the voluntary guidelines promulgated by NHTSA, are a good first step, countless safety concerns remain when it comes to HAVs and CAT that could expose consumers to unnecessary harm if they are not properly designed and fully tested. Recognizing this, every manufacturer should follow the lead of Volvo Cars, whose chief executive officer recently stated his company’s commitment:

         

“Manufacturers should be held responsible if their autonomous technology causes car accidents. We are the suppliers of this technology and we are liable for everything the car is doing in autonomous mode.” –President and CEO Hakan Samuelsson, October, 2015.

          As HAVs become a reality, with the singular goal of making highway travel safer, it is vital that American consumers be able to trust that each manufacturer has made its vehicles safe and reliable. To this end,  every other vehicle and component manufacturer must join with Volvo Cars and make a public pledge to accept responsibility for harm and injury resulting from a collision that occurs because of the failure of an autonomous feature or when one of its automated systems either malfunctions or fails to perform as intended.  Absent such a pledge how can the NHTSA, the states and the American Public trust the safety of their families to these highly automated vehicles?

The guidelines do appear to indicate  DOT is planning to address these issues and seeking public comment for this new system of transportation; but it must not shy away from assuring public safety with minimum federal vehicle safety standards and means to hold manufactures responsible and accountable. It should not rely on mere guidance, deference to the industry and each individual state. NHTSA must not delegate its regulatory responsibilities to the states. NHTSA must issue a minimum federal performance standard for Highly Automated Vehicles (HAV’s), and make clear there is no preemption. Designers and manufacturers must  be held responsible and accountable for any caused when an HAV does not perform as intended or malfunctions.

Moving Forward

This technology will have a dramatic effect on how car crash cases are litigated and we need to be prepared for it. It will greatly impact insurance rates and insurance premiums as this technology is implemented the number and severity of crashes will no doubt decrease. It also raises the question as the whether the driver or the vehicle is responsible for the crash? Or both?  Despite what the manufacturers have told us, CAT technology will fail and crashes will be out there. While we hope the opposite is true, we must continue to be on the lookout for cases involving defective CAT technology. And we must be just as eagerly monitoring for the “failure to equip” cases, in other words not having this technology as standard equipment on all vehicles, including commercial vehicles. Safety is not an option. Other cases may involve the technology simply not performing as intended or expected, such as the problems noted above with the Acura Collision Mitigation Braking System incorrectly interpreting certain roadside objects like metal fences or metal guardrails as obstacles and unexpectedly applying the brakes.

The legal profession, as it has always done, will play a critical role in protecting the American public, and holding the automotive industry accountable when their vehicles fail and harm the public.

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[1] See Math Problems and Think Fast, www.chevrolet.com/films.html (last visited Nov. 30, 2015).

[2] See Demolition Derby 2014 Mercedes Benz M Class, https://youtu.be/xU8NuH9QDhQ (last visited Nov. 30, 2015). Such ads may be useful to show drivers are entitled to rely on this technology.

[3] 49 C.F.R. § 571.111 (2014).

[4] 49 C.F.R. § 571.111 (2014).

[5] Rule Document on Rear Visibility, http://www.regulations.gov/#!documentDetail;D=NHTSA-2010-0162-0256 (last visited Nov. 30, 2015).

[6] Freightliner Inspiration Truck Receives Autonomous Vehicle Licensing from Nevada DMV, PRNewswire (May 5, 2015), http://www.prnewswire.com/news-releases/freightliner-inspiration-truck-receives-autonomous-vehicle-licensing-from-nevada-dmv-300077983.html.

[7] Freightliner Inspiration Truck – the first licensed autonomous driving truck in the US, Daimler (May 5, 2015), http://media.daimler.com/dcmedia/0-921-899449-1-1810873-1-0-0-0-0-1-0-1549054-0-1-0-0-0-0-0.html?TS=1431452764012.

[8] Freightliner Inspiration Truck Unveiled at Hoover Dam, Freightliner (May 5, 2015), http://www.freightlinerinspiration.com/newsroom/press/inspiration-truck-unveiled/

[9] NHTSA Preliminary Statement of Policy Concerning Automated Vehicles, www.nhtsa.gov/staticfiles/rulemaking/pdf/Automated_Vehicles_Policy.pdf (last viewed May 18, 2015).

[10] Freightliner Inspiration Truck Unveiled, supra note 16.