We’ve all had it happen: you’re working away on your computer when suddenly it crashes. Or freezes. Or slows down to the point where it’s functionally unworkable. Frustrating yes, but not life threatening. Unfortunately these same kinds glitches happen with the computer software or hardware in consumer products and sometimes have profound safety ramifications. Think electronic throttle controls, medical monitoring equipment, smoke detectors, traffic control devices, etc…
A quarter of a century ago, an electronic throttle control was the cutting edge of automotive engineering. Today, vehicles are in the midst of a wholesale transition from mechanical machines to complex electronic systems that encompass everything from safety-critical components – such as throttle controls and steering to entertainment and navigation devices to ignitions and lock systems. Todd Hubing, the Michelin Professor of Vehicle Electronic Systems Integration at Clemson University’s International Center for Automotive Research, quantified it this way in a presentation before the National Academy of Sciences: the F35 Joint Fight Striker jet has 5.7 million lines of code; the Boeing 787 Dreamliner has 6.5 million lines of code. The average luxury automobile has 100 million lines of code.
This technological revolution has produced a new generation of automotive defects that challenge automakers, regulators and litigators. A late-night, one-car, run-off-the-road fatal crash with no witnesses – was it a case of distracted or drunk driving? Or was it a loss of control crash caused by a random, intermittent electronic fault in the accelerator pedal position sensor? Most consumers and law enforcement officers wouldn’t even consider the latter possibility.
An Example: Unintended Braking
The problems arise from myriad sources. In some cases, manufacturers have stuffed vehicles with electronic systems, without fully understanding how they can malfunction in interaction with each other or with other electronic sources outside of the vehicle.
For example, in April 2010, General Motors recalled more than 40,000 Chevy Corvettes from the 2005 and 2006 Model Years, because an intermittent or open circuit in the Steering Wheel Position Sensor could partially initiate the Electronic Stability Control System to apply the brakes to one or more wheels. According to General Motor’s explanation of its recall, the supplier of the ESC system initiated an investigation into the problem, after an analysis of returned warranty parts. Although this malfunction was supposed to trigger the engine control unit to record a diagnostic trouble code, GM told the National Highway Traffic Safety Administration:
[A]nalysis of the returned SWPSs indicated that more than 85% had no trouble found. At that time General Motors was aware of the warranty claims related to the “SERVICE ACTIVE HANDLING SYSTEM” message, but did not have any information to indicate that this condition could result in a brake application of one or more wheels.
Another Example: Vehicle Fires
Another problem is when electronic components overheat and ignite. In one recent case our firm handled we found and interviewed former plant employees who were responsible for installing vehicle electronics in the factory. They testified that there was a known problem that occasionally happened during installation where wire insulation would become stripped, exposing wires or connections and creating a potential fire hazard.
Another Example: Unintended Acceleration
The Toyota unintended acceleration story is a perfect example of how reports of crashes allegedly caused by random, intermittent electrical faults challenge investigators. Despite 11 recalls and 11 investigations which found no problems other than errant floor mats, sticky accelerator pedals and driver error, vehicles from the company’s Lexus luxury line to the Toyota Corolla continue to be plagued by complaints of surges at stop lights, sudden lunges while parking, and high-speed UA events, causing deaths, injuries and property damage.
Secretary of Transportation Ray LaHood’s announcement in February 2011 that a joint NHTSA and National Aeronautics & Space Administration probe did not find any electronic causes for Toyota Unintended Acceleration glossed over a number of important findings indicating there was a least one electronic cause in some vehicles: tin whiskers in the accelerator pedal position sensor. NASA investigators found tin whiskers growing in every pedal they examined – including one from a consumer who complained that her pedal was “jumpy” and that the car was completely “undriveable.”
Another Example: Infiniti JX35
In July NHTSA opened an investigation into allegations that the intelligent brake-assist system of the 2013 Infiniti JX35 inappropriately activated, bringing the crossover SUV to a complete and immediate stop. The system is supposed to activate when a crash is imminent, but both consumers who reported the problem said that no drivers were in front of them at the time. (The allegations came from drivers in New Jersey, and both complained that their incident occurred on a bridge.) Similarly, Mercedes owners continue to report similar sudden braking but federal investigators closed their investigation several years ago and the company hasn’t recalled their vehicles.
How did we get here?
Automotive electronic technology migrated from avionics, but without the well-developed and vetted functional safety practices and multiple redundancies that govern the application of electronics to aircraft. Automotive electronics have evolved as a patchwork of proprietary systems, dumbed down and produced at the commodity level, without the same protections. At the same time, there are no government regulations or standards dealing with the functional safety of automotive electronics.
In 1988, BMW debuted the first drive-by-wire system in a passenger car, the 7-Series automobile. Nearly 25 later, the International Organization for Standardization (ISO) published ISO 26262, a functional safety standard for electronics systems in mass-produced passenger vehicles. This voluntary industry standard governs the reliability of automotive electronics by identifying risks during the design phase and features standards at every stage of a product’s lifecycle. Unfortunately, this standard – even if rigorously followed — is way late in the game.
NHTSA, as it was revealed in Congressional hearings devoted to Toyota Unintended Acceleration, was far behind the technological curve with only two electrical engineers on its staff, and none in the Office of Defects Investigation. In January, 2012, the National Academies of Science panel NHTSA engaged to examine unintended acceleration and the agency response to the defect, released its report. This report, The Safety Promise and Challenge of Automotive Electronics; Insights from Unintended Acceleration criticized NHTSA as ill-equipped to deal with vehicle electronics, and appeared to have no short-term prospect for acquiring that expertise, stating:
For NHTSA to engage in comprehensive regulatory oversight of manufacturer assurance plans and processes, as occurs in the aviation sector, would represent a fundamental change in the agency’s regulatory approach that would require substantial justification and resources (see Finding 4.6). The introduction of increasingly autonomous vehicles, as envisioned in some concepts of the electronics-intensive automobile, might one day cause the agency to consider taking a more hands-on regulatory approach with elements similar to those found in the aviation sector. At the moment, such a profound change in the way NHTSA regulates automotive safety does not appear to be a near-term prospect.
And yet, the industry, with the government’s blessing, is moving even further down the rabbit hole toward autonomous cars.
For consumer attorneys, the brave new age of automotive electronics means that the cause of each crash must be assessed on the totality of the evidence. And when they don’t add up, attorneys must look beyond the obvious and consider whether electronics may be to blame.
It won’t be easy. The expert pool is shallow. The cases will be expensive and risky. But the problem is real, serious crashes are happening, and people are being hurt and killed. So when I’m asked “what’s the next big thing for automobile product liability litigation?” I’m convinced that the answer to the question is “vehicle electronics.”