Theodore H. Frank: I am not afraid of my Toyota Prius

I’ve been driving Toyota Priuses since 2001.  As a junior defense lawyer in the mid-90s, I litigated a number of bogus sudden acceleration cases that were brought against General Motors.

So the recent kerfuffle over alleged mysterious electronic problems with the Prius and other Toyotas has certainly caught my attention beyond just throwing my floor mat in the trunk.

I knew the public hysteria had reached unprecedented proportions when my father, a Ph.D. geologist skeptical of everything from George W. Bush to global warming (and that’s just the G’s), credulously emailed me repeatedly to demand I read a press release from a plaintiff’s lawyer on how to prevent runaway vehicles. 

The short answer: hit the brake and stay on it.  Every vehicle on the road today has a braking system more powerful than its engine.  Shift into neutral.  Then turn off the power.

So James Sikes, who made a dramatic 911 call from his Prius on Interstate 8 in San Diego earlier this week, is effectively claiming he had an electrical problem that affected his throttle, his brake, and his power system, because it took him over 20 minutes to stop his car.

Somehow no one in the press has asked Sikes how it is he could stop the car once it had slowed to 50 mph, but not when it was going 90 mph.  Have Balloon Boy and the finger-in-the-chili taught us nothing?

Even if one believes all the hype, the reaction so far has been a giant overreaction.  Fifty-odd deaths over 10 years and millions of Toyotas is a drop in the bucket compared to the general risk of being on the road at all.

It’s entirely possible that more people will be killed driving to the dealer for the recall than lives will be saved from going through the safety theater demanded by the Department of Transportation.

As Carnegie Mellon University Professor Paul Fischbeck calculates, I face 19 times more risk walking home the mile back from my Toyota dealer than I would driving a car that one assumes has the electronic defect.

But one shouldn’t believe the hype.  We went through this a generation ago with the Audi 5000 and other autos accused of sudden acceleration, and, again, mysterious unknowable car components were supposedly at fault.

In a North Carolina case I worked on, the plaintiff’s expert theorized that electromagnetic transmissions from submarines might have set off the throttle via the cruise control, though, unsurprisingly, he was not able to duplicate the effect while driving around electrical towers with much greater electromagnetic interference.

Back then, the National Highway Traffic Safety Administration (NHTSA) spent millions studying the issue.  They found that sudden acceleration was several times more likely among elderly drivers than young drivers, and much more frequent among the very short or someone who had just gotten into a vehicle.

Electromagnetic rays don’t discriminate by age and height, which suggests very much that human factors were at play: in other words, pedal misapplication.  A driver would step on the wrong pedal, panic when the car did not perform as expected, continue to mistake the accelerator for the brake, and press down on the accelerator even harder.

This had disastrous consequences in a 1992 Washington Square Park incident that killed five and a 2003 Santa Monica Farmers’ Market incident that killed ten—the New York driver, Stella Maycheck, was 74 (and quite short); the California driver, George Russell Weller, 86.

We’re seeing the same pattern again today.  Initial reports of a problem, followed by dozens of new reports “coming to light” as people seek to blame their earlier accidents on sudden acceleration.

Again, mysterious car components are at issue, this time, speculation of software or electronics going haywire.  But if the problem is software, it is manifesting itself a lot like the Audi sudden acceleration did.

The Los Angeles Times recently did a story detailing all of the NHTSA reports of Toyota “sudden acceleration” fatalities, and, though the Times did not mention it, the ages of the drivers involved were striking.

In the 24 cases where driver age was reported or readily inferred, the drivers included those of the ages 60, 61, 63, 66, 68, 71, 72, 72, 77, 79, 83, 85, 89—and I’m leaving out the son whose age wasn’t identified, but whose 94-year-old father died as a passenger. 

These “electronic defects” apparently discriminate against the elderly, just as the sudden acceleration of Audis and GM autos did before them.  (If computers are going to discriminate against anyone, they should be picking on the young, who are more likely to take up arms against the rise of the machines and future Terminators).

But Toyota is being mau-maued by Democratic regulators and legislators in the pockets of trial lawyers—who, according to the Associated Press, stand to make a billion dollars from blaming Toyota for driver error.

And that is before hundreds of past run-of-the-mill Toyota accidents that killed or injured people are re-classified in future lawsuits as an electronics failure in an attempt to win settlements against the company.

Media irresponsibility severely damaged Audi’s brand for years in the U.S.; GM’s litigation expenses from sudden acceleration and similarly bogus product liability suits contributed to its recent need for a taxpayer bailout.

Certainly, the dozens of deaths reported to NHTSA are real tragedies—as are the tens of thousands of other automobile-related deaths that occur every year.  While it’s certainly possibly the case that floor mat troubles have caused a handful of accidents, the media needs to exhibit more skepticism before it does trial lawyers’ bidding against Toyota on a speculative theory of electronic defect that is absent of evidence.

Theodore H. Frank (http://tedfrank.com) is the founder and president of the Center for Class Action Fairness. He does not speak for General Motors.