In the wake of Toyota Motor Corp.’s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install “black boxes” in all new cars to record accident data.
In early December, the agency proposed that event data recorders must be installed in all cars made after September 1, 2014, at an estimated cost of $20 per vehicle. The devices capture safety-related data including vehicle speed and whether the brakes were activated in the seconds before a crash.
The proposal has won the support of the 53 million-member AAA, but it has also triggered concerns about privacy and how the data will be used.
NHTSA pointed to its investigation of the Toyota claims as one justification for the rule. In a December 7 Federal Register notice, the agency stated that its “experience in handling unintended acceleration and pedal entrapment allegations has demonstrated that [event data recorder] data from a particular vehicle model can have significant value to both the agency and the vehicle’s manufacturer.”
Toyota has paid more than $65 million in fines for failing to report safety problems to NHTSA promptly, most recently shelling out a record $17.35 million on December 18 for tardy disclosures involving cases of floor mat pedal entrapment.
Like most car makers, Toyota already installs event data recorders voluntarily in its vehicles. Information from the devices has been scrutinized by federal regulators as well as lawyers for the plaintiffs and defense since late 2009, when the first reports surfaced that Toyota vehicles sometimes accelerated uncontrollably, leading to accidents and deaths.
The $1.3 billion settlement announced on Wednesday resolves a class action by Toyota owners who claimed that the resale value of their cars was diminished by the negative publicity surrounding the reports. Toyota agreed to pay $250 million in compensation for economic losses, as well as provide free installation of brake override systems for many Toyota and Lexus models. For those not eligible for the system upgrade, Toyota agreed to establish a $250 million fund in lieu of the installation.
The settlement does not resolve pending personal injury cases, where information from event data recorders has been key.
The first case set for trial concerns a November 5, 2010 crash in Utah that killed 66-year-old Paul Van Alfen and 38-year-old Charlene Lloyd and injured Van Alfen’s wife, Shirlene, and their son, Cameron. Van Alfen was driving a 2008 Toyota Camry when it collided with a rock wall. The survivors said he hit the brakes but the car wouldn’t stop accelerating. In that case, Toyota lawyers and technicians as well as a NHTSA representative first examined the car’s event data recorder without counsel for any Van Alfen family member present.
The plaintiffs, represented by counsel including Daniel Robinson of Robinson Calcagnie Robinson Shapiro Davis and Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein, asked Judge James Selna of U.S. District Court of the Central District of California to sanction Toyota for spoliation of evidence, noting that while there was no proof of tampering, it was nonetheless possible.
“Plaintiffs were not afforded the opportunity to observe and object to what actually occurred during the November 19, 2010 inspection of the Van Alfen vehicle,” Selna ruled in June. While he declined to dismiss the case or exclude evidence from the recorder, he did rule that “at trial, the Court will formulate an appropriate adverse inference instruction” for the jury, and that “the Court has not ruled out the possibility of a shift in the burden of proof as a possible sanction.”
The proposed NHTSA rule requiring event data recorders merely sets new safety standards mandating the installation of the recorders in all cars and light trucks. About 8 percent of new vehicles do not have such recorders.
What the proposed rule doesn’t do is address who owns the data, “who has access to it and under what circumstances, and what are the purposes for which it may be used,” NHTSA’s Federal Register notice states. “As an agency, we do not have the statutory authority to address many of these privacy issues because they are generally matters of State and Federal law that we do not administer.”
Comments on the proposed rule are being accepted until February 11, but those submitted so far are almost uniformly negative. “It will violate my right to privacy granted by the 4th amendment of the US Constitution,” one person wrote, while another opined “How can ‘we the people’ truly be free, with this device?” and another said, “This is getting closer and closer to George Orwell’s book 1984.”
Robert Darbelnet, president of AAA, said in a statement that “Data recording devices play a critical role in advancing vehicle safety.” But he cautioned that “motorists should own the data that their vehicle generates” and said that “Congress needs to ensure motorist rights are protected by passing legislation that prohibits access to data without permission from the owner or from a court order, unless the data is used for research purposes and cannot be tracked to a single vehicle.”
Jenna Greene is a reporter for The National Law Journal, a Legal affiliate based in New York.