Race to the bottom

Last Monday James Sikes leaped into the national view when he claimed, via a twenty-three minute long 911 call that his Prius was speeding out of control. Pleading for help, a CHP officer finally drove next to him instructing him to engage the parking brake. After almost thirty minutes, James Sikes nightmare had ended.

Or had it?

There’s nothing our twenty-four a day media love more than a circus and this was a good one. On the very day Toyota conclusively debunked a so-called “expert’s” claim that he had reproduced unintended acceleration, Sikes appeared, as if by command, to show the world what it was like to speed out of control in a Prius.

Whether Sikes story is a hoax or not is debatable, to some extent. As yet, no physical evidence has been presented that he faked it or that it was real. The investigation is ongoing. Well, sort of.

The real failure in this tale of woe is that of the media. Our media failed us completely and utterly. Instead of asking hard questions, we were treated to press conferences with the “victim” and computer generated recreations of the incident (albeit mostly inaccurate ones).

Here’s a wire story from the Associated Press from late yesterday. Check out these excerpts and decide if there is a pattern here.

The California Highway Patrol has repeatedly said it has no reason to suspect a hoax. It does not plan to investigate the incident or perform a mechanical inspection because there were no injuries or property damage.

I guess driving over 80 MPH and making false claims to an officer is no longer a crime in California. That should make my next visit to California a lot more exciting.

“There is no factual information that I’m aware of, or the highway patrol is aware of, that would discredit his story,” agency spokesman Brian Pennings said Friday.

No, as I said, there isn’t yet. But where is the common sense? Where is the sober judgment of people who, at least I used to think, had vast experience with motor vehicles? And I guess since the CHP is not investigating it will be hard for them to turn up any additional facts in the case, won’t it. As I said, I hope the CHP who encounters me cruising at 90 MPH on California highways is as forgiving and incurious.

And after having several people prove that engaging the parking brake, shifting to neutral or simply turning the vehicle off would have stopped this, almost immediately, The AP felt it was necessary to bring another “expert” just toss some digital noise of their own into the mix:

But Raj Rajkumar, an electrical and computer-engineering professor at Carnegie Mellon University in Pittsburgh who studies auto electronics, said the Prius could still have acceleration malfunctions even with the fail-safe system.

Toyota says the fail-safe and the engine are controlled by a central computer that contains two independent microprocessors that communicate and must agree with each other. If there’s a disagreement, power would be cut to the wheels.

But Rajkumar said the two engine control unit microprocessors could still receive common erroneous signals from sensors or experience software errors that could cause the throttle and the fail-safe mechanism to malfunction.

Two, independent microprocessors giving identical erroneous sensor readings? That is indeed the perfect storm. I wonder what the odds of that are and I wonder why the AP didn’t ask him that. No I don’t.

Here’s the weirdest “fact”, and it’s only one of many that make no sense at all. From the AP story:

Todd Neibert, the officer who gave instructions to Sikes over a loudspeaker, said he smelled burning brakes when he caught up with the Prius. He examined the car when it came to a stop.

“The brakes were definitely down to hardly any material,” he told reporters. “There was a bunch of brake material on the ground and inside the wheels.”

Let’s walk through this, shall we? You’re accelerating out of control in a vehicle, you’re “standing on the brakes” over a thirty mile long stretch of road. I understand why the officer might examine the brakes and find little or no brake material on the mechanism but this part, “There was a bunch of brake material on the ground” has been repeatedly asserted by Officer Niebert and it makes no sense. If you’ve worn down the brakes over a thirty mile long drive, why would there be brake material in a pile, on the ground under the car? Shouldn’t the material be spread out over a thirty mile long stretch of road?

The problem here is no one in the media asked important questions or really questioned the entire incident until people started speaking out on the net and commenting how odd this entire incident is.

Instead, we get this from the AP:

Claybrook, the former federal administrator, noted that drivers often come under heavy scrutiny for reporting unintended acceleration.
“Attacking the driver has long been the answer that not just Toyota, but the entire industry, has had,” she said. “Blaming the driver is old hat.”

Old hat indeed when the facts make no sense. If someone tells me something that is, on the face it, wholly illogical, yes, I question them. And that Claybrook doesn’t and that the AP feels that’s a vital part of the story tells me more about each of them than the incident itself.

Then there’s this sad, sad bit of kabuki. A spokesperson from congressional rep Darrell Issa’s office showed at the investigation of the Sikes incident and demanded to be included, delaying the investigation for more than several hours. Why? Well, just because.

In all, no less than four reports of “sudden unintended acceleration” have been reported this week. In every case the initials reports (and most of the follow-ups) have been met with little or no skepticism, no important questions asked and just comments about how bad this look for Toyota.

The result of all this is simple, the media have, intentionally or otherwise, damaged every Toyota owner in the United States, no protected them. The kind of reporting that doesn’t look for facts and reasons and only relates the dramatic and exciting aspects have caused the values of every Toyota in the United States to decline. Kelley Blue Book has, twice in the last thirty days, announced reductions in the values of Toyota vehicles. This, quite literally, affects every person who owns a Toyota in the US. And when the dust has settled. When the facts do manage to ooze out. Who is going to repair that damage?

What Drives Us Episode #7 for March 12, 2010

Play the latest What Drives Us episode

This week Hosts Danny Cooper and Russell Frost welcome back Tony Schaefer and Eric Powers to the panel for an extended discussion on the alleged Prius acceleration incidents. We take apart the James Sikes/San Diego report as well as the one from New York.

Download it through iTunes here.

Orange County California continues to make fun of itself

So earlier today Orange County District Attorney Tony Rackauckas decided to rear up on his hind legs and grab some national attention by filing a class action suit “on behalf of the residents of Orange County”.

(image from the District Attorney’s office)

Clearly the worst problems in Orange County California appear to be, it’s not getting enough national press. If this is what occupying their district attorney then truly, Orange County must be a little slice heaven.

Keep in mind, this is the county, one of the most prosperous in California, that managed to go bankrupt in the mid nineties. I suppose by now the embarrassment from that has faded so this issue must loom large in the sights of ace law enforcer Joseph “Tony” Rackauckas. Sure, the Orange County has struggled with plummeting property values, rampant mortgage fraud and home foreclosures, losing jobs but this Toyota thing, well, it has to be addressed.

Here’s a PDF of the complaint. Here’s a bit of it:

3. This case is based on several simple and provable facts: (a) millions of California consumers purchased defective Toyota vehicles; (b) Toyota knew that these defects existed; (c) Toyota failed to disclose these defects, and actually took affirmative steps to hide the defects and mislead the public about them; (d) as a result, none of the California consumers knew about, or reasonably could have known about, the defects; (e) millions of California consumers have been harmed by owning or leasing Toyota vehicles that contain defects which completely undermine the safety and reliability of the vehicles; and (f) the value of every Toyota vehicle owned by California consumers has been reduced because of these defects.

So one has to wonder what evidence Rackauckas has that congress apparently lacks, oh, and the entire news media since we’ve seen no evidence that Toyota has done any of this. What we have seen is a lot of very bad reporting, some folks with claims that are backed no physical evidence and make little sense and a general, “We hate Toyota” sentiment that seems to be driving this in some areas.

Here’s the kicker:

Relief sought by the OCDA
The OCDA is seeking to permanently enjoin Toyota from continued unlawful, unfair, deceptive, and fraudulent business practices as it pertains to both consumers and competitors. The OCDA is seeking civil penalties in the amount of $2,500 for every violation of the Unfair Business Practices Act. The Plaintiff is also seeking recovery of attorneys’ fees, investigation costs, and any other equitable relief as deemed just.

So the “relief” is twenty-five hundred bucks for each Toyota owner plus legal fees? As usual, the attorney’s here bill for millions and the actual people might see as much as $2500. Great deal if you can get it, for the attorneys.

And because everyone deserves a chance to tell their own story I called the DA’s office in Orange County. I spoke with one of their spokespeople there and I asked a few questions to try wrap my mind around this thing.

I asked how many complaints the DA’s office had received regarding Toyota vehicles. The response was that this action on the part of DA Rackauckas is not based on consumer complaints from Orange County residents. Why Orange County first? Why not let the Feds deal with this. The response, from DA Rackauckas’ own speech is as follows:

As these cases continue to pile up, I became increasingly uneasy, knowing that many thousands of California consumers have purchased defective Toyota vehicles. I became increasingly concerned that Orange County consumers may be purchasing many more Toyotas without knowing the full facts.

I feel it is the duty of the Orange County District Attorney’s Office to protect the public and our consumers from unlawful, unfair, and fraudulent business practices. I feel it is our duty to make sure Toyota is not gaining an unfair business advantage over other car companies who are not doing what Toyota is doing.

Nice of OC to step up and offer to fight Toyota on behalf of, well, everyone. A little more history, directly from DA’s speech this morning:

You may remember that in 2002, we joined forces with the Robinson, Calcagnie & Robinson law firm in taking action against giant international oil companies to clean up poison from ground water. As a result, we forced the oil companies to clean up over 300 sites and pay over $25 million in penalties and millions more in unlimited costs for cleanup of contaminated sites.

(editors note: I can only find records of OCDA getting a little less than $10 million in these suits)

It’s no secret that our office has been enduring a severe budget crisis. We have to prosecute the same number of cases with 10 percent less prosecutors and investigators. As important as protecting the public from unfair business practices and this case may be, I could not take prosecutors away from prosecuting murderers, rapists and gang members.

We all know that as soon as we file this suit against the world’s largest, most successful car corporation, they are going to be parachuting in lawyers, with all kinds of legal tactics up their sleeves. We need the assistance of a law firm, with expertise in these types of cases, to help us defend against the barrage of legal attacks we expect from this gigantic international corporation. Believe me, they will spare no expense to hire an army of lawyers from fancy firms.

Brave, I guess, but then fighting paper dragons often sounds much more impressive than it is. So, the mostly broke office of the Orange County District Attorney is going to take on Toyota over what they perceive as some kind of mounting crisis because no one else will? And they’re going to do it armed with what facts? And taxpayer paid outside attorneys? With what evidence? Based on news reports? And let’s be clear here, getting oil companies to pay to “study” and clean up after 143 leaky gas stations is a lot different than somehow proving Toyota has been knowingly selling defective cars and intentionally hurting people. The evidence with the oil companies was measurable. And even that settlement didn’t clean up all the gas stations, it only provided that the oil companies would spend several million dollars studying the sites to determine if a clean up was necessary. And the OCDA got $5 million in legal fees. Funny thing, those same oil companies with the Lake Tahoe water district for a similar issue. The result, Lake Tahoe got $60 million. Not such a great deal for Orange County residents, eh?

What’s more, let’s pretend for a moment that DA Rackauckas has a point and he’s doing god’s work here. Why just Toyota? There are more than handful of other recalls on other vehicles from other companies, some going back years. So why just Toyota?

As I’ve said here before, I’ll lead parade with torches to the Torrance offices if someone can show me proof Toyota has done what many in the media and the DA of Orange County is claiming. Keep in mind, I have a big, fat car loan right now on a 2010. My kid drives a Corolla. I have no desire to prop up a company that would knowingly hurt people to make money least of all, hurt my family and I.

But where’s the evidence?

And without that, people like this asinine DA in Orange County have caused me harm. Armed with a “timeline” they’ve damaged the resale value of my property, this DA and the media, without evidence and without care to actually reporting facts. It’s my opinion that I can prove that. I can point to the hundreds of bad, misleading and inaccurate articles that have damaged what my property is worth. I can point to idiotic grandstanding by the media and now, an officer of the court, namely, the District Attorney of Orange County California all of which have done nothing to “protect the consumer” and a lot of harm millions of Toyota owners all over the United States.

Where’s my lawsuit?

If were an OC resident right now, I’d be pissed my tax dollars trying to chase some Toyota gravy train that is highly unlikely to ever come in. And let’s be honest here, he’s not doing it for people of Orange County, Rackauckas is doing it for himself and for the other attorney’s. This District Attorney has a history of chasing these kind of budget problems. Only last year DA Rackauckas came under fire from a death penalty proponent for prosecuting so many death penalty cases? Why? They’re expensive. And in a time of budgetary problems it seemed pointless to spend the money prosecute these cases and incur the additional cost of asking for the death penalty in a state that has no death penalty.

He’s going to spend Orange County tax dollars paying outside attorneys to prosecute this case and he’s doing it to try and build himself a bigger name. And that’s pathetic because I don’t think that’s what Orange County residents elected him for.

Funny Prius video WARNING: NOT SAFE for work, children or the emotionally sensitive

This is pretty funny. I don’t agree with some of his ranting but the kind of drunken rage I can relate specifically regarding these “acceleration” incidents.

Little runaway Prius

It would appear our Mr. Sikes is not a great decision maker. In jumping into the media spotlight, something he has consciously done, he’s suddenly a person a lot people are curious about. Leave it to Gawker to dig up the dirt.

Of course, none of this directly refutes Sike’s claims. It does however cast a different light on his character and potential motivations.

I still like evidence and it’s my hope that we’ll see something come out of the investigation on this matter.

There is no way this can end well

And here’s where I rip CNN a new one.

Let’s face it, running a huge multi-national, like the proverbial sausage factory, isn’t pretty but that doesn’t stop millions of people from gobbling up the product.

This story, no matter how it ends, is going to be real ugly for Toyota.

Apparently, a person whom CNN describes as “former in-house defense attorney Dimitrios Biller” resigned from Toyota, cashing in a four million dollar severance package and walked out with more than 6,000 documents and emails from his former employer. In the article, Biller claims the documents are damaging to Toyota, “Not potentially, they are. They are very damaging,”

There’s little doubt in my mind that just about any lawyer could produce documents that were damaging to a former client. That’s the nature of legal representation, right or wrong, we’re only pondering half the story if we can’t admit that. So even under the best circumstances, this is going to be another nightmare for Toyota.

So the real question is, so what does he have? What do these documents show us?

So what did CNN learn?

The documents — some of which were reviewed by CNN — were sent by Biller to Toyota officials. There are numerous references to so-called “Books of Knowledge,” highly confidential information on design, safety systems and testing records allegedly generated by Toyota engineers on everything from roll-overs and roof safety to sudden unintended acceleration.

Here’s a photograph of one of the not-so-secret “Books of Knowledge” I took in January of 2009. It happens to be “the Book” for the third generation Prius. The man holding it is known simply as the “The Chief”. He’s Chief Engineer of the Prius, Akihiko Otsuka.

And this picture…

And this picture of The Chief actually consulting the book to respond to a question…

So, yeah, secret book of knowledge. The Chief referred to this “book”, well, folder, that appeared to contain a vast amount of very well organized data on the the third generation Prius, many times throughout the presentation and questioning.

Here’s how CNN described it;

highly confidential information on design, safety systems and testing records allegedly generated by Toyota engineers on everything from roll-overs and roof safety to sudden unintended acceleration.

Of course any company that designs and builds a car has this information. In fact, I would guess that every car company has this information on every vehicle they’ve made and yes, it’s confidential. Is that surprising or somehow “damaging” to Toyota?

Again, the question is, depends on what’s in there. But by no means does mere existence of this information mean Toyota has done something wrong. This is shoddy, tawdry reporting. Give me an example of something that’s damning from these documents which CNN claim they have examined. CNN does, later on, but it’s, well, read on please…

So far, we know an ex-Toyota lawyer grabbed a bunch of privileged communications and is now, now that he’s out and has his four very-large bonus, he’s claiming these documents are damaging.

Further on we read about a specific liability case. A case, as it turns out, which Biller defended Toyota in. The accident was a Camry rollover which Toyota settled for $1.5 million. The plaintiff’s lawyer in the case is quoted as saying,

Embry, who added Toyota provided just enough information to show Toyota vehicles “met the minimum standards.”

Perhaps sad but again, what I would expect from any company defending itself in a multi-million dollar and not proof of guilt by any means.

Again, from the CNN article:

Included in Biller’s documents is an e-mail he said he sent to his bosses summarizing negotiations. It says, “TMS [Toyota Motor Sales USA] concluded that it would be better to pay a premium to settle this case and avoid producing the ‘Books of Knowledge.’”

So Toyota decided to pay off this claim rather than divulge what is basically a blueprint for building the Prius, even more, they’re the results of building the vehicle using those plans and testing it. I’m sure there’s a lot of folks that would like to get that information for free. GM claims to have spent three quarters of a billion dollars designing, building and testing the Volt, so far. Who wouldn’t love to see “the Book” on the Volt? Do you think GM would fight to keep that information secret?

Although Toyota calls the materials “trade secrets,” Embry said,

Exactly.

So why, if Biller knew a judge had ordered all information produced, didn’t he produce it? He said he tried but was stopped by a superior who told him, “You have to protect the client at all costs.”

“Even if that includes,” Biller asked, “committing criminal acts or violating the law?”

The answer, Biller said, was yes.

Did he break the law? “No, I did as much as I could as a lawyer for a client to not break the law,” he said.

At least he follows orders.

For awhile.

Toyota says publicly that Biller is full of it and they will continue to fight to keep those documents private. I can’t blame them but I will add this, if there is something in there that is truly damning, I’d be at the head of the line to kick some Toyota ass. But the evidence has to be there. I won’t do it on the allegations of a former lawyer who left Toyota years ago because of a “nervous breakdown”, grabbed a bunch of privileged communications and then, four years later, threatens to make them public.

I want evidence. Where is the evidence? We have enough allegation and assumption on this issue. Enough to clog the news organs of this country all too much. Where are the real facts?

There’s no doubt CNN should be reporting this story. My question for them, when will they actually do some reporting? If their goal was act as flack for this former lawyer, job well done. If their goal was to inform the public, they haven’t really bothered to tell us anything important, have they?

And as I said at the top, there’s no way this can end well for Toyota. It just adds more ironic gasoline to the fire. Even if Toyota is successful in keeping “the Book” and rest secret, then they lose image wise. If they make it public, everyone gets everything they spent millions learning.

Yes, this is going to suck for Toyota.

And by the way, just for laughs, here’s The Chief and I later in the day…

The runaway Prius saga

Tonight, my co-host, Danny Cooper of priuschat.com and I record our weekly What Drives Us podcast. Rather than write out my thoughts, I’m spending more time digging into this. If you’re interested in an update, please check out our podcast. We’ll have a lot to say about it.

Suffice to say, for now, that the reporting on this continues to be abysmal, the stories fantastic and no rational explanation backed up by physical evidence has yet been offered, by anyone. Aside form Toyota, the big loser here is the American car buyer who is being slathered in innuendo and assumption and none the wiser for it.

Ouch

Now the Today show’s fake news segment is doing “re-creations” of alleged Prius acceleration incidents.

Visit msnbc.com for breaking news, world news, and news about the economy

No matter what’s going on here, Toyota has a serious problem and they need to get on this because I guarantee, the Today show won’t be doing informative updates on the issue.

This story is just bizarre. A two year old Prius suddenly does this. And the guy can’t slow until a CHP car comes alongside?

And can we see just one of these stories where the driver isn’t a grandparent?

UPDATED: The more I read about the less it makes sense. His pedal was “floored” but he was only going 90? I know for a fact the Prius tops out way above 90. The CHP officer states on the video he could see the brake lights on and could smell brakes but the car wouldn’t slow down? Then the driver states he never wants to drive the car again, somewhat reasonable under the circumstances but it also brings to mind the idea that if you wanted to get rid of your Prius, this is one great way to do it and get some face time on national news.

And although this issue is fraught with difficult details, situations like this might be the best argument yet for detailed EDR findings to be publicly accessible. I don’t know what the EDR records but it could possibly tell us whether or not this guy just wanted to dodge a speeding ticket or if the demons had possessed his Prius and it was out of control.

Toyota and unintended acceleration

It’s trite but it’s true. Like any complex problem, chances are, it’s unlikely there will be a simple solution. But simple solutions are what people want. Want? Demand. The idea that these sudden acceleration incidents could be the cause of many things, some driver error, some software defect, isn’t one most people want to hear.

As the cast of characters grows, as the networks decide to tap into this vein for melodramatic effect and as the omnipresent vultures of politics, the judiciary and consultants begin to smell blood in the water, I doubt we’ll be gifted with much more clarity. And so the numbers, from handfuls to dozens to thousands of incidents changes, so do the circumstances.

Here’s my take.

The time in front of congress was mostly worthless to citizens and car owners. It gave a lot of otherwise undistinguished congressional reps a chance to grandstand on C-SPAN with the hopes of catching some replays on their various local news shows. It gave a few consultants a chance for some billing. It gave some victims a chance to cry in public.

Some, random but interested tidbits…

Why has David Gilbert’s name been scrubbed from the SIU website? And just to make it more confusing, he’s not this guy.

Toyota proved, via a live webcast, that you can make any car with an electronic throttle accelerate out of control and not throw a fault code if you’re willing to re-engineer the pedal wiring (link to Autoblog coverage) as Mr. Gilbert, the automotive expert did. I guess that’s a net win for Toyota, sorta.

Sean Kane was put on the table as the opening bet, Toyota raised with Exponent. As expert guns for hire go, Toyota may be ahead on points but not by much.

Rhonda Smith took the stand to shame Toyota and thank god (for stopping her car) none of which really addresses why her car “went out of control” in the first place.

Driver error is still the phrase which must not be intoned. At least according Delegate Eleanor Holmes Norton who demanded to know if her Camry hybrid was safe. Norton’s exceptionally pathetic performance was only matched by her lack of listening skills. After she went on at length about how aggrieved she was at not being able to buy an American made hybrid, she bought a Camry hybrid. When TMS president tried to tell her that in fact, the Camry was made in Kentucky with a significant number of American parts Norton deftly, if not somewhat bizarrely contended that he was trying to blame American victims for Toyota’s problem.

Yeah, it was that uplifting and informing.

In the end, which isn’t here yet, we’re left not really knowing what’s going. That isn’t to say I’ve parked my car nor should you. I think that, some time in the future, we’ll learn that this was a large part of driver error and a system in Toyota that doesn’t take lightly to defect allegations. That’s just my guess based on the number of incidents involved. I think the only thing I can say I’ve learned from this entire gymkhana thus far is that another part of our system is broken. Defunding and defanging NHTSA over the last decade was a dumb decision. Getting the government involved in a corporate bailout of a company that would, unquestionably, make its priorities even more complicated doesn’t help. Toss in a wilted salad of craven congressional reps. who can’t figure out if they should be kissing butt or whipping ass and you’ve got the situation we’re in.

Of course, as news develops, stay tuned here. I’ll be posting it.

What we can learn and what we will not learn

An interesting op-ed from Electronics, Design Strategy News on drive-by-wire and how we evaluate these systems. Here’s the closing graph;

The only parties in this little tragedy with an interest in improving the state of the art are the engineers, whom no one will consult, and the victims, whom the lawyers will silence. It would be better for everyone if it were a principle of civil law that, when a failure inflicts damage, the vendor and independent parties must place all of the diagnostic information they find into the public domain, and the courts may not use this information to assess or assign damages. Such a notion might somewhat restrict the income opportunities of litigators, but it would unquestionably assist the engineering community in learning from its mistakes.

I couldn’t agree more.

The one thing I learned from watching over ten hours of the House hearings was that the entire charade was merely an opportunity to grandstand for the various House reps’ own causes, whatever they might be, free trade, more business in their district, championing for “victim’s rights” the whole thing was, if you’ll forgive the term, Kabuki of the most tawdry sort exemplified by Delegate Eleanor Holmes Norton using the excuse of standing up for Toyota owners world-wide when she attempted to extract a commitment from Akio Toyoda that her Camry hybrid “would never be recalled”.

Transparency is the one thing that we all benefit from, car company, car owners, engineers. It’s the one thing we’re least likely to get.

What Drives Us #6 for February 26, 2010

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This week Danny and Russell are joined by Tony Schaefer and Eric Powers to discuss, the new Lexus CT-200h plug-in, Bloom Energy and the death of the Hummer. Eric Powers also gives us a great, in-depth view of the 2010 Chicago Auto Show.

Download it through iTunes here.

“Lexus lady”

Here’s some discussion from Leo LaPorte regarding the “Lexus Lady” some of who’s testimony you’ll find down below.

Once again, the one thing most parties in this can’t say is that drivers make mistakes and sometimes when they do, it leads to terrible things. I can’t say, without seeing the evidence, which incidents are driver’s mistakes or potential defect issues but I can note that this is the option NO ONE is talking about in the media. Apparently, in congress and in the media, all drivers are perfect it’s only vehicles and regulators that screw up.

UPDATE: Oh man, and I thought what I wrote was pretty harsh. Check this out.