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Plaintiffs’ lawyers leading the multidistrict litigation against Toyota Motor Corp. said they are investigating whether new recalls totaling 2.17 million vehicles are truly limited to defects associated with the gas pedals.

Toyota announced on Feb. 24 that it would recall six models for defects that cause the vehicles to suddenly accelerate. Of those, nearly 1.4 million involved a single recall of 4Runner, Rav4 and Lexus LX vehicles due to defective gas pedals. The other two recalls identify newly discovered defects in interior panels and carpeting that affect the pedals in the Lexus RX and Lexus GS.

Plaintiffs’ lawyers immediately expressed skepticism about what’s causing this latest problem with sudden acceleration.

"We believe there is much more to this recent recall than just floor mats entrapping the gas pedal," said W. Daniel "Dee" Miles, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala., who serves on the plaintiffs’ committee handling the personal injury and wrongful death cases against Toyota in the MDL. "The Electronic Throttle Control System continues to be the issue in select Toyota vehicles as related to sudden unintended acceleration. The MDL team of lawyers and experts continue to gather evidence from Toyota and to test these cars to get to the real problem."

Donald Slavik, a partner at Robinson Calcagnie & Robinson in Newport Beach, Calif., who serves on the same committee, said he is going back to the accident cases in the MDL to see if any involve the models that are subject to the latest recalls. He’s also watching to see how Toyota fixes the defects.

Most of the new recalls involve defects in which floor mats become entrapped with the accelerator pedal, causing the vehicles to suddenly accelerate out of the driver’s control. Toyota initially recalled 4.2 million vehicles in November 2009. The Feb. 24 announcement expands on that recall by adding nearly 1.4 million vehicles: the 4Runner, model years 2003 through 2009; the Lexus LX 570, years 2008 through 2011; and the RAV4, years 2006 through 2010.

As for the newly discovered defects, Toyota said it would recall 372,000 RX 330, RX 350 and RX 400h vehicles from years 2004 to 2007, and another 397,000 Highlander and Highlander HV vehicles, model years 2004 through 2006, to repair the driver’s side floor carpet cover and two retention clips. If the clips or floor cover interferes with the gas pedal, it could get stuck in a depressed position, causing sudden acceleration

The company recalled some 20,000 GS 300 and GS 350 all-wheel drive vehicles from the 2006 and 2007 model years to change the plastic pad in the driver’s side floor carpet, which could cause the gas pedal to become stuck.

The recalls were prompted by a U.S. National Highway Traffic Safety Administration investigation into the scope of Toyota’s previous recalls due to defective gas pedals.

"The National Highway Traffic Safety Administration reviewed more than 400,000 pages of Toyota documents to determine whether the scope of its recalls for pedal entrapment was sufficient," said agency Administrator David Strickland. "As a result of the agency’s review, NHTSA asked Toyota to recall these additional vehicles, and now that the company has done so, our investigation is closed."

Slavik said he wants to review those documents.

"I’d like to see the documents that Toyota supposedly provided to NHTSA – the 400,000 documents referred to – to see what kind of information is in there as to whether it was actually floor mats or other causes that are explained," he said. "We know that in prior recalls, many of the vehicles for which they blamed floor mats often did not have any floor mats in them."

This month, the agency launched an investigation into complaints that the 2006 Highlander hybrid SUV stalls unexpectedly.

The fresh recall underscores claims that Toyota knew about the gas pedal problems but failed to report them, said Steve Berman, managing partner of Hagens Berman Sobol & Shapiro, who is co-lead counsel on the plaintiffs’ committee for the economic damages cases against Toyota in the MDL. In December, Toyota agreed to pay $32.4 million in fines for failing to promptly notify regulators when it learned of defects involving floor mats and steering. Last year, Toyota agreed to a $16.4 million fine for not notifying regulators promptly about the gas pedal defects.

"This latest recall stands in sharp contrast to Toyota’s repeated declarations that they know where the floor-mat problems existed, and they have already acted to correct them. This is obviously not the case, and this sort of revelation calls into question the veracity and credibility of the other claims the company has made regarding this issue," he said.


In other Toyota news, plaintiffs’ lawyers have asked U.S. District Judge James Selna, who is overseeing the MDL in Santa Ana, Calif., to prevent a newly discovered personal injury case from going to trial on March 28. The case, filed in 2008, involves a man who was injured when his 2005 Scion suddenly accelerated, causing a collision. According to court documents, a Toyota lawyer first mentioned the case to a plaintiffs’ lawyer involved in the MDL on Feb. 8.

Albert Zafonte Jr., the lawyer for the plaintiff in that case, said he was unaware of the MDL, according to court documents in the MDL and in his own case, which is pending in federal court in New York. He has since asked U.S. Magistrate Judge E. Thomas Boyle to vacate the trial date and move the case into the MDL, but Boyle refused on Feb. 18, according to court documents.

"We’re supposed to know and they’re supposed to share information," said Wylie Aitken, founding partner of Aitken Aitken Cohn in Santa Ana, who serves on the plaintiffs’ liaison committee in the MDL. "Toyota obviously knew about it since its filing in 2008, almost two years before the MDL, yet has not given an explanation as to why it was not disclosed and when asked about it refused to provide any information."

Zafonte, of the Law Offices of Albert Zafonte Jr. in Uniondale, N.Y., did not return a call for comment. In a Feb. 14 letter to the court, he requested that his case be transferred into the MDL since he had taken only two depositions and Toyota had produced "less than one banker’s box of documents."

In a Feb. 15 letter to Boyle, Toyota’s lawyer in the case, Robert Scumaci, a partner at Gibson, McAskill & Crosby in Buffalo, N.Y., wrote that the U.S. Judicial Panel on Multidistrict Litigation rejected a request to fold the case into the MDL on Feb. 11.

In a court document filed on Feb. 24, Toyota’s lawyer, Lisa Gilford, a Los Angeles partner at Alston & Bird, disputed that plaintiffs’ lawyers didn’t know about the New York case. She reiterated that the case had progressed far along by the time the MDL was created, rendering it inappropriate for coordination. "Now on the eve of trial, Plaintiffs are belatedly grasping for some way to delay the trial of…a case that has been pending for nearly three years," she wrote.

Selna was scheduled to take up the matter during a hearing on Feb. 25.

Contact Amanda Bronstad at [email protected].

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