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One week after a U.S. National Highway Traffic Safety Administration (NHTSA) announced that a recently concluded report found no electronic defects in its vehicles, Toyota Motor Corp. has moved to dismiss a consolidated class action based in part on the study’s findings.

In the report, released on Feb. 8 by NHTSA, engineers at the National Aeronautics and Space Administration (NASA) found that unintended-acceleration incidents in Toyota vehicles were due not to electronic problems, but rather mechanical defects — specifically, to accelerator pedals that stuck to the floor and floor mats that became trapped. Toyota has recalled 8 million vehicles and paid $48.8 million in civil penalties due to those particular defects but has denied any problems with the electronic throttle control systems in its cars.

Toyota cited this month’s study in its second attempt to dismiss a consolidated lawsuit brought on behalf of consumers for economic damages against Toyota.

"Plaintiffs are chasing a phantom theory of defect that only last week NASA and NHTSA, after an extensive investigation, jointly confirmed does not exist," Toyota’s lawyer, Lisa Gilford, a partner in the Los Angeles office of Alston & Bird, wrote in a motion filed on Monday.

The motion is the second attempt for Toyota to dismiss class actions that make up the majority of more than 200 lawsuits pending in multidistrict litigation (MDL) before U.S. District Judge James Selna in Santa Ana, Calif. On Nov. 19, Selna refused to dismiss the economic damages cases entirely.

Plaintiffs’ lawyers have been turning in recent months to emphasizing Toyota’s failure to install a brake override systemin its cars and trucks that might have cured the defects. Recognizing the legal shift, Toyota’s Gilford sought to dispel those claims in Monday’s motion.

"Given this, Plaintiffs’ constantly shifting theory now seems to have fallen back to only one point of emphasis: the lack of a single fail-safe — a brake override system — which conveniently ignores a host of other fail-safes and disingenuously suggests that a brake override system was somehow an industry standard," Gilford wrote.

She argued that the plaintiffs’ theory fails because a brake override system is unnecessary to fix an electronic defect. Furthermore, Toyota never made false statements to consumers that its cars contained a brake override system.

Steve Berman, managing partner of Seattle’s Hagens Berman Sobol Shapiro, and co-lead counsel of the plaintiffs’ steering committee for the economic damages cases, said Toyota’s lawyers are "taking some liberties" in their motion with the study.

"It is like your son eager to show you his recent report card, touting the single A while his finger covers the C’s, D’s and F’s," he said in prepared statement. "It is almost comical if Toyota wasn’t foisting this ploy at the expense of consumer safety."

But he cited the study’s conclusion that a brake override system could be a possible remedy to the recent defects.

In Monday’s motion, Toyota also moved to dismiss claims under breach of express warranty. Gilford wrote that many of the plaintiffs asserting defects had not taken their cars into a repair shop as required under the warranty.

"A majority of named Plaintiffs never gave Toyota any opportunity to repair or adjust the allegedly defective vehicles pursuant to the express warranty they rely upon as the basis for their claim," she wrote.

The claims also allege design defects, which are not covered under Toyota’s warranties, she added.

Toyota also moved to dismiss claims of unjust enrichment and continued to argue that many plaintiffs lacked standing because they had not suffered any economic injuries.

A hearing on the dismissal motion is scheduled for April 29.

Amanda Bronstad can be contacted at [email protected].

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