While Toyota continues to assure Congress and the world that its vehicles are safe, police in Southlake, Texas are investigating another fatal collision involving a Toyota Corolla that killed Waynoka Ricord (77) of Southlake. Texas. On Sunday, February 28, 2010, as Ms. Ricord was driving home from work, her car veered off the road and hit a tree, bounced off and hit a second tree. Police have not had sufficient time to determine whether the crash is related to the recent recall problems that have been linked with so many Toyota vehicles. While the Corolla involved in this wreck was not on the list of vehicle recalls announced by Toyota, many critics of Toyota have been alleging that the scope of Toyota’s recall is too limited and is not covering all of the vehicles affected.Waynoka Ricord. She died early Sunday at Baylor Regional Medical Center at Grapevine shortly after the wreck.
As far back as 2004, government investigators were looking at 2002-2003 Toyota Camrys and Solaras and Lexus ES 300s to determine whether they were defective, gathering information about 37 owner complaints of sudden acceleration, according to the Center for Auto Safety.
Last week, during Congressional hearings, James Lentz, president and chief operating officer of Toyota Motor Sales, U.S.A., Inc. testified, “We are confident that no problems exist with the electronic throttle-control system in our vehicles.” Lentz claimed Toyota conducted extensive testing of the system’s fail-safe mechanisms. But under questioning from Henry Waxman, Mr. Lentz conceded he was “not totally” certain that Toyota had fixed the problem. To safeguard against further occurrences, the company said it would install brake-override systems in its new North American vehicles by the end of year, and that Toyota would retrofit older models where possible.
Toyota’s failure to include a brake override system in its design has been widely criticized, especitally since over vehicle manufacturers foresaw the need for this safety design and included a brake override system in their vehicles. The brake override systems allow a driver to stop a car with the footbrake even if the accelerator is depressed and the vehicle is running at full throttle. “If the brake and the accelerator are in an argument, the brake wins,” a spokesman at Chrysler said in describing the systems, which it began installing in 2003. Likewise, Volkswagen, Audi, BMW and Mercedes-Benz have also installed such systems in their cars as far back as 10 years ago. In addition, General Motors installs brake override in all of its cars in which it is possible for the engine at full throttle to overwhelm the brakes. “Most other automakers have adopted this technology,” said Sean Kane, a former researcher at the Center for Auto Safety who now works at Safety Research and Strategies. Not adding the systems “is one of the mistakes that created this perfect storm for Toyota.” However, Toyota did not respond to questions about its decisions not to include a brake override as part of the design of its vehicles.
The following year models have been added to the list of vehicles which will receive brake override upgrade: 2005-2010 Tacoma, 2009-2010 Venza and 2008-2010 Sequoia. Toyota previously announced that the system would be installed onto the 2007-2010 Camry, 2005-2010 Avalon, and the 2007-2010 Lexus ES 350, 2006-2010 IS 350 and 2006-2010 IS 250 models. The brake override feature is not an integral part of the recall remedy, but is instead being added as an extra measure of confidence for Toyota owners. It will be installed on Tacoma and Venza at the same time as the recall modifications are performed.
Meanwhile, owners of Toyota vehicles are still finding it difficult to determine how they should respond to all of the safety concerns concerning Toyota vehicles. Representative Edolphus Towns, Democrat of New York, is trying to force Toyota to extend to all owners of Toyota vehicles the same type of protections that the New York attorney general, Andrew M. Cuomo, was able to get for citizens of New York. As part of that settlement, Toyota agreed that it would pick up cars and trucks at the homes of drivers, pay for out-of-pocket transportation costs and offer drivers free rental cars during repairs.
How important is safety at Toyota? According to a document sent to a U.S. congressional committee investigating Toyota and its handling of the recent disclosure defects with so many of the Toyota line of vehicles, Toyota Motor Corporation was able to saved $100 million by “negotiating” recalls of its vehicles. According to internal Toyota documents, Toyota executives described their ability to negotiate around recalls as “Wins for Toyota.” Toyota was able reduce or to delay the effect of proposed rules on roofs, door locks and protection in side-impact crashes, according to the document that was turned over to the House Committee on Oversight and Government Reform and obtained yesterday. By delaying the rules, Toyota was credited with saving about $135 million. Yet Toyota continues to claim “Our first priority is the safety of our customers and to conclude otherwise on the basis of one internal presentation is wrong. Our values have always been to put the customer first and ensure the highest levels of safety and quality.”
In contrast, over the past few years, when owners of Toyota vehicles complained about unwanted acceleration, Rep. Bart Stupak, D-Mich. said Toyota representatives “commonly responded … by concluding that the events the consumer described could not have happened.” Stupak also accused Lentz of misleading the public in television interviews in which he said Toyota studied the problem and the cause was the sticky pedals and floor mats. He said experts interviewed by the committee demonstrated that the report used an extremely small sample that would not get to the root of the problem. One of the primary authors of the Exponent report said they did not examine any vehicles or components that had the unintended accelerations.
Toyota’s Internal Documents
Toyota’s internal documents reveal:
Toyota saved $100 million referring to a 2007 investigation in which Toyota recalled 55,000 vehicles, including Camry and Lexus ES cars, citing the potential for floor mats to trap accelerator pedals, after an investigation by the National Highway Traffic Safety Administration.
Toyota was able to avoid investigations of the Tacoma pickup for rust as well as resolve a labeling recall without civil penalties, saving approximately $20 million in “buybacks.”
Toyota saved thousands of hours of labor by delaying NHTSA’s revamped consumer ratings, the New Car Assessment Program, according to the document. The program grades new models on a five-star scale based on how well they fare in crash tests.
Federal Grand Jury Supoena Issued to Toyota
As if Toyota was not already in enough trouble, a federal grand jury in the Southern District of New York issued a subpoena that requested Toyota and its units produce documents related to unintended acceleration of Toyota vehicles and the braking system of the Prius, the automaker said in a regulatory filing to the SEC. This new development of being subpoened by a federal grand jury has far reaching implications. There is no doubt that it will create issues for Toyota executives who are scheduled to testify at hearings Tuesday and Wednesday. Not only is the subpoena an indication that Toyota may face large civil penalties and fines for the automaker, but that the United States government may even decide to issue criminal indictments against Toyota executives. Even a carefully crafted apology could be used against the company or the executive in a criminal trial.
Further, considering the scope of the problems Toyota has been dealing with and the public outrage, lawmakers are likely to press for direct answers to specific questions and to be unsatisfied if executives refuse to answer questions by asserting their Fifth Amendment rights. For example, Rep. Bart Stupak, D-Mich., who will run Tuesday’s hearing, said documents and interviews demonstrate that the company relied on a flawed engineering report and resisted efforts to link Toyota’s electronics to the problems with unintended acceleration in an effort to reassure the public that it found the answer to the problem and that the problem was limited in scope. In a letter to Toyota, Stupak said a review of consumer complaints shows company personnel identified sticking pedals or floor mats as the cause of only 16 percent of the unintended acceleration reports and that approximately 70 percent of the acceleration incidents in Toyota’s customer call database involved vehicles that are not subject to the 2009 and 2010 floor mat and “sticky pedal” recalls leading Stupak to the conclusion that Toyota was not being up-front in its disclosures to the public or the handling of the problem.
In addition, the SEC is also beginning an investigation of Toyota and whether or not Toyota complied with SEC regulations since its stock is publicly traded. Quinn Gillespie & Associates, a prominent lobbying firm, meanwhile, said it had stopped representing Toyota because of a conflict that posed with another client. Quinn Gillespie officials would not identify the other client, but an auto industry official speaking on condition of anonymity to reveal private information said it was State Farm, the giant auto insurer that told federal regulators in 2004 and 2007 about reports of unexpected acceleration in some Toyotas.
It is not clear what laws Toyota might have broken. While the subpoena would specify why prosecutors sought company documents, Toyota would not comment beyond its disclosure with the SEC. Likewise, a spokeswoman with the U.S. Attorney’s Office for the Southern District of New York declined to comment, saying it does not confirm or deny its investigations as a matter of policy.
The Politics Behind the Scene
As we mentioned in our previous post, it will be interesting to watch how the politics of this situation play out. Clearly there are safety issues involved, yet some political figures appear to be more concerned with the financial gains they or their constituents receive from doing business with Toyota than with the safety of Americans. Texas Governor Rick Perry is among those who seem to be more concerned with the business impact of Toyota than with the safety concerns over Toyota vehicles and whether Toyota is telling the truth to its customers and to the government. Last week, Rick Perry commented that ,”It does sometimes appear, however, that the negative news is being encouraged by plaintiffs’ trial lawyers, union activists and those interested in cutting into Toyota’s market share.” This approach is not atypical as according to government documents, Toyota has been steadily increasing its lobbying efforts to obtain favorable legislation and treatment. For example, 10 years ago, Toyota spent $685,684 on Washington lobbying as compared to 2009 when it spent $5.2 million.
Stay tuned. We are sure that the hearings this week will definitely lead to more questions about Toyota’s handling of this crisis.
There is no doubt Toyota is deep in a crisis and is not only facing a public relations nightmare, but also probably a long line legal problems over the widespread recalls of its vehicles over the past couple of months. However, not everyone wants to hold Toyota accountable for its actions that have been linked to numerous deaths and injuries.
While the safety of the public should be the primary concern and focus of everyone involved, Texas Governor Rick Perry appears to be less focused on safety and holding the car manufacturer responsible for its actions than he is in the financial gain the state generates through its relationship with Toyota. In a letter sent this week to Texas Congressman Joe Barton of Ennis, the ranking Republican member of the Energy and Commerce Committee – called for lawmakers to keep in mind next week when company officials testify before the committee the thousands of Texas families “whose economic livelihoods depend on Toyota, … and to consider the integral role the Japanese automaker plays in the Texas economy.” Discounting the need to protect the public from a manufacturer that may have known for years that its product was defective and dangerous and was linked to deadly accidents, Rick Perry commented that ,”It does sometimes appear, however, that the negative news is being encouraged by plaintiffs’ trial lawyers, union activists and those interested in cutting into Toyota’s market share.”
Hopefully, when the hearings take place next week, members of Congress will be more focused on finding the truth, protecting the American public, and holding Toyota accountable for its actions than they are in protecting Toyota’s profits.
Are your cell phone records and information private information or public information? As cell phones become more and more technologically advanced, and as the number of people whose only telephone number is a cell phone increases, so do the number of legal issues that have arisen regarding whether cell phone records and information is private or public information. The answer has a number of implications, not the least of which is the question about whether a law enforcement agency has the right to obtain your cell phone records and information without a search warrant or if this information is constitutionally protected under the 4th Amendment as part of every American’s right to be free from unreasonable searches and seizures.
Is There a Reasonable Expectation of Privacy?
This week, in a federal case that’s on appeal before the Third Circuit, the Court is considering the question of whether the government must obtain a search warrant to access this information because it is constitutionally protected private information or if the government can obtain that information without a search warrant because it is public information to which there is no reasonable expectation of privacy. The Bureau of Alcohol, Tobacco, Firearms and Explosives claims it needed historical (meaning stored data from previous calls, not the ability to tap into calls or call records that are expected to be made in the future) phone location information because a set of suspects “use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities.” U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department’s attempt to obtain stored location data without a search warrant. While the Court’s ruling does not eliminate the ability of law enforcement agencies to obtain the information, the ruling would require law enforcement agencies to obtain a search warrant based on “probable cause” before they can obtain the cell phone records and information.
“The big picture in the case is whether the US government can circumvent the constitutional rights of the individual, and therefore avoid the need to obtain search warrants when requesting this information by claiming that the information is obtained from a third party (a cell phone provider) as opposed to obtaining the information directly from the individual because typically information obtained from a third party does not usually get constitutional protections. The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment.
U.S. Magistrate Judge Lisa Lenihan’s ruling which was joined in by four other judges noted that cell phone location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and even extra-marital affairs. In appealing the ruling, the Department of Justice claims a search warrant is not necessary because information that only provides the location of the cellular telephone provides “only a very general indication of a user’s whereabouts at certain times in the past, and that the requested cell-site records do not implicate a Fourth Amendment privacy interest.”
The Department of Justice is relying heavily upon other rulings to support its position that the information can be obtained without the necessity of a search warrant because they claim there is no expectation of privacy. For example, in 2009, U.S. District Judge William Pauley ruled that a defendant in a drug trafficking case, Jose Navas, “did not have a legitimate expectation of privacy in the cell phone” location because Navas only used the cell phone “on public thoroughfares en route from California to New York” and “if Navas intended to keep the cell phone’s location private, he simply could have turned it off.” In response to the Department of Justice, lawyers for various interests say that Americans do not “knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones.” They take the position that the calls people are making and even the information about those calls such as when and where the calls were made and to what numbers were called are intended to be private.
Law Enforcement Uses of Cell Phone Records & Information
Without a doubt cell phone records and information can be of great benefit to law enforcement agencies who are investigating and trying to stop or to prevent criminal or terroristic activites. However, if the information falls into the wrong hands, there can be grave consequences. Businesses are routinely transacting business over cell phones. If information regarding those businesses is leaked, it can costs companies millions of dollars. Plus, on a personal level, if personal information is leaked to the wrong person, the information may lead to identity theft and a host of other very harmful consequences.
A great example of how information from cell phones can be helpful to law enforcement involves the arrest and convictions of armed bank robbers in Dallas that were known as the “Scarecrow Bandits.” The Scarecrow Bandits were a highly organized group that had robbed more than 20 Texas banks. In trying to catch and to identify the people involved in these crimes, FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The records showed that two phones had made calls around the time of the bank robberies, and that those cellular telephones belonged to men named Tony Hewitt and Corey Duffey. A Dallas jury eventually convicted the men of multiple bank robberies and weapons charges. Corey Duffey, was sentenced in January 2010 to 354 years. Another member of the Scarecrow Bandits was sentenced to 140 years in prison.
Cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.
Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. In another case, Arizona agents from the DEA tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. This information also has other uses such as the case where information was obtained from a cellular telephone tower to help search for James Kim, who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.
According to the most recent data from the National Highway Traffic Safety Administration, at least 34 people have died in accidents involving Toyota Motor Corp. vehicles that allegedly accelerated out of control in the past decade. This is a dramatic increase in the number of deaths originally believed to be linked to the unintended accelleration issues since the time that the “sticky” gas pedals have become so well publicized. This number includes at least 13 more that have been reported since January 27, 2010, the day after Toyota ordered a sales and production halt of eight models in the U.S. to fix gas pedals that it said can stick and cause unintended acceleration. To make matters worse, the number is likely to continue to increase as an analysis of the data shows that all but one of the newly reported deaths occurred years prior to the 2010 recall — some as far back as 1992.
Most of the incidents occurred between 2003 and 2009. Noting the increased fatality total, Clarence Ditlow, executive director of the Center for Auto Safety in Washington, said “We are going to go over 100 without a doubt,” Ditlow said. “The only question is what is the true number because many fatalities don’t get attributed to sudden acceleration, especially as you go further back in time before people were paying attention to Toyota.”
In addition to the fatalities, federal regulators said 22 people reported injuries from unintended acceleration accidents involving Toyota vehicles, which ranged from cuts and bruises to a woman left in a coma.
Nonetheless, the jump in reported fatalities in its vehicles marks another troubling development for Toyota, which has been furiously attempting to reassure the public about its commitment to safety in the wake of the recent recalls.
Toyota, for its part, has not released data from its own internal complaint files on accidents, injuries or deaths alleged to stem from unintended acceleration. The automaker has declined to state how many complaints of the problem have been filed, but in general databases held by manufacturers are orders of magnitude larger than NHTSA’s.
A Bigger Problem Than The Recalls Reveal
Even scarier for consumers of Toyota vehicles is that the NHTSA data show that many of the fatality reports involved Toyota models that were not included in any recalls. For example,
- a fatal crash on Oct. 13, 2009, in New Hampshire involved a 2005 Highlander, which has not been recalled. Toyota has issued recalls only on 2008-2010 Highlanders.According to the NHTSA complaint, the car hit a vehicle head-on, killing four people. “Believe car had uncontrolled acceleration,” said the complaint, which was filed Jan. 27.
- In addition, the data show complaints alleging fatalities involving a Scion tC, and a Lexus GS, neither of which models are included in the recalls. No Scion models have been named in any of the recalls.
- Nearly all the sudden acceleration-related fatality complaints on file for Toyota affect vehicles manufactured since the 2002 model year. Only five such allegations are included in vehicles produced prior to that time, the oldest a 1988 Camry that crashed into a brick wall.
- The majority of fatalities were in Camry and Lexus ES vehicles, which are built on the same platform and share many components. Both vehicles are subject to the floor mat recall.
- A complaint of an August 2008 accident in Chicago alleges that the driver of a Lexus ES 330 had removed the floor mats from the vehicle the morning of a sudden acceleration incident than ended with the sedan striking and killing a pedestrian prior to passing through a fence and into a concrete pillar. According to the complaint, Toyota wrote the driver on Sept. 22, 2008, stating “that the car was operating properly.”
- Another complaint detailed a 2004 crash in Indiana that took the life of a female driver whose 2003 Camry surged out of control and smashed into a building. The vehicle had less than 7,000 miles on it. A handwritten notation on the complaint, filed shortly after the accident, said “throttle stuck — engine surged.” Paramedics arriving on the scene, the complaint said, “found the driver with both feet still on the brake pedal.”
Last week, a Dallas County jury sentenced James Giraldo (27) to 20 years in prison for killing Juliana Rincon-Cuartos in October of 2009. Twenty years is the maximum sentence. Meanwhile, the sentencing of a Steward Richardson in Tarrant County was delayed as prosecutors are forced to appeal a ruling of the court that would prevent them from seeking a life sentence against a 7 time convicted drunk driver that crushed a child in a car seat.
Wrong Way Drunk Driver James Giraldo
James Giraldo’s case is the first of several highly publicized cases involving wrong way drunk drivers that caused a head-on collisions on the North Dallas Tollway in 2009. After a night of drinking at a bar, James Giraldo got in his vehicle and drove the wrong way directly into oncoming traffic on the tollway and struck a vehicle in which Juliana Rincon-Cuartas was a passenger. Three hours after the crash, Giraldo’s blood alcohol level was still 0.18 — more than twice the legal limit. Mr. Giraldo plead guilty to charges of intoxication manslaughter and asked the jury for leniency, saying he has thought about the death of 27-year-old Juliana Rincon-Cuartas every day since the accident
Giraldo’s claims of remorse fell on deaf ears when the jury heard that after being involved in this deadly drunk driving wreck, Giraldo was arrested again on another charge of DWI while driving on the tollway. According to police records, Mr. Giraldo refused to submit to a breath test or to provide a blood sample following his second arrest. While Giraldo claimed that the incident has been “one of the most difficult things I’ve ever had to deal with in my whole life, and that I think about it every day. … I think about the girl. I think about her family. I think about what I took away from the family because of my own stupidity.” According to Dallas County Prosecutor, Hermus, Giraldo’s second arrest shows that the defendant didn’t learn a lesson and needs the supervision of prison to protect the community.
7 Time Drunk Driver Trying to Avoid Life Sentence
Meanwhile, Tarrant County prosecutors have been forced to file an appeal of a pre-trial ruling that would prevent them from seeking a life prison term against Stewart Richardson for the horrific injuries he inflicted upon Abdallah Khader in a February, 2009 wreck. Tests show that Stewart Richardson’s blood alcohol content (BAC) was three times the legal limit when his truck rearended Loubna Elharazin’s car at an Arlington stoplight.
Abdallah was crushed while belted in his car seat. Doctors say that up to 80 percent of his brain was destroyed in the crash. While Abdallah’s life has all but stopped, his body keeps growing, and swelling from all the steroids and medicines that keep him alive. His face and cheeks are abnormally chubby. His eyes roll, but don’t focus. His mother says, “Sometimes you see tears coming out of his eyes, but to be honest with you, we don’t know what makes him mad. All we do is hold him and try to make him comfortable.”
Prosecutors had hoped to send Richardson to prison this week for life. After all, prosecutors uncovered 7 prior drunk driving convictions in 4 other states including one drunk driving accident that resulted in injuries to several people in a 1994 crash in Iowa. However, all of the drunk driving offenses were considered to be misdemeanors. If any one of them had been classified as a felony, Richardson would have been subject to receiving a life sentence. Instead, the maximum prison sentence he can receive is 20 years. Prosecutors are appealing the judge’s ruling, and say they hope for a reversal. The appeal could cause a delay in the sentencing of Mr. Richardson by as much as a year.
Meanwhile the family of Abdallah Khader is forced to wait for justice, and to hope for a miracle to happen, something little; I lost hope.”
We at Montes Herald Law Group, LLP believe that punishing those who engage in driving while intoxicated is important, especially when the drunk driver proves time and again that he or she will continue to drive drunk. Once an intoxicated driver gets behind the wheel of a vehicle, everyone’s well being and safety is at stake. If you or a loved one has been injured by a drunk driver, contact Rachel Montes. We will discuss your case with you for free and at no obligation. Contact us at (214) 5222-9401 and visit our website at www.MontesLawGroup.com for more information regarding our firm and our attorneys. Please visit Montes Herald Law Group, LLP’s Facebook website as well to get involved in our efforts to fight drunk driving.