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Claims hard to prove, disprove in Toyota suits

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Claims hard to prove, disprove in Toyota suits

Crash investigation evidence is scarce and often ambiguous, while litigation can drag on for years

Christine Tierney / The Detroit News

On the morning after Christmas, Monty Hardy ran his Toyota Avalon through a stop sign, broke through a fence and clipped a tree before flipping the sedan into a pond in a Dallas suburb, fatally injuring all four occupants.

The Avalon was one of millions of Toyotas recalled in November because the gas pedal could get jammed by floor mats and accelerate uncontrollably.

But when the driver-side mat was found in the trunk, the accident fueled suspicions that there was more wrong with the Toyota than the risk of pedal entrapment.

Police in Southlake, Texas, closed the investigation last month without reaching any conclusion. They didn't rule out a defect that might have caused unintended acceleration, or the possibility that Hardy, 56, an epileptic, may have suffered a seizure.

"We couldn't exclude either of those as factors," said a spokesman, Sgt. Mike Bedrich.

The case illustrates how difficult it may be to prove or disprove allegations of unintended acceleration in Toyota cars and trucks. Every day, new lawsuits are filed in the United States against the Japanese giant, which may find itself mired in litigation for years.

As Congress prepares to open hearings this week on Toyota Motor Corp.'s handling of the recalls, legal experts say the company's liability may be determined in part by any revelations that emerge in the hearings and from an investigation by the U.S. Department of Transportation.

Mounting cases against Toyota fall into two broad categories: lawsuits alleging economic damage to Toyota owners resulting from the shrinking resale value and lost use of their cars, and claims that people were injured or killed because of defects that Toyota may have been slow to acknowledge and repair.

One class-action suit filed by an attorney with a Cincinnati firm is pursuing Toyota under a federal racketeering statute designed to target

organized crime.

Increasingly, Toyota appears to be facing its own version of Ford Motor Co.'s crisis 10 years ago over rollovers of SUVs with Firestone tires.

Echoes of Firestone crisis

"It's very similar," said Tim Howard, a law professor at Northeastern University who is trying to form an alliance of law firms suing Toyota for economic damages.

It's similar in scale to Ford's problem, with some 6 million Toyota vehicles recalled in the United States since September for acceleration-related issues. And as with the rollovers, the accidents can be terrible. "When it happens, there's a tragedy," Howard said. "A whole family can get killed."

The Ford-Firestone mess cost the Dearborn automaker more than $4 billion in terms of recalls, lost output and lawsuits over a year and a half -- and that doesn't include the cost of the damage to Ford's reputation.

The final tab for Toyota may be higher. The automaker recently estimated the near-term cost of the two recalls -- one for sudden acceleration, and a second on Jan. 21 to fix pedals that could stick -- at $2 billion.

Hardy's widow has retained Randell Roberts, a Texas attorney with experience battling Ford and its tire supplier Firestone. He is waiting to see what comes out of the hearings in Washington. "I think a lot of information is going to come out in these hearings," Roberts said.

"We want to get all the information before we decide whether to file suit and who to sue."

Toyota would not comment on litigation or pending litigation.

"If there was a cover-up in any way, shape or form, that's going to compound the problems when they get to the litigation and class-action cases," said Jason Vines, who was a spokesman for Ford during the rollover crisis.

He sees similarities between Toyota's difficulties and Ford's. "The line of questioning will be the same: What did you know, and when did you know it?"

Litigation can drag on for years. On Friday, a California jury awarded $23.4 million to a woman paralyzed in a Ford Explorer accident.

Effort likely to matter

If Toyota can show conscientious efforts to investigate and resolve the problems of unintended acceleration, the automaker is likely to fare better in court.

Experts say the number of fatalities linked to reports of uncontrolled acceleration of Toyota vehicles -- 15 when the first recall was announced, and now 34 -- isn't a big number for a company that sells close to 2 million cars and trucks a year in the United States.

Most independent auto experts and investigators say unintended acceleration is most often caused by driver error; the driver, in a moment of panic, or in an unfamiliar vehicle, may accidentally step on the wrong pedal.

Thirty years ago, Audi faced damaging complaints that its cars were prone to unintended acceleration -- allegations that U.S. safety regulators now say were never proven.

Similar complaints in the late 1990s against Chrysler Corp.'s Jeep Grand Cherokee turned up no defect, said Vines, who was then working for Chrysler. The problem was either a floor mat trapping the gas pedal, or people stepping on the gas, he said.

But Toyota is increasingly facing allegations from plaintiffs' attorneys that electronic interference with the systems in the vehicle may be causing the acceleration to go haywire.

They point to the automaker's adoption, starting about 10 years ago, of electronic throttle control, in which the driver stepping on the gas is actually sending an electronic signal to the throttle.

NHTSA continues tests

Toyota says extensive electromagnetic testing has not uncovered any problem with the electronic throttle control. The National Highway Traffic Safety Administration also has not found an electronic problem in its tests of Toyotas, but is continuing to examine the issue.

NHTSA sent a team to Texas to study the wrecked Avalon but is not commenting on the case.

The Southlake Police, which led the investigation, couldn't rule out an electronic malfunction, but saw no evidence of one, either. Similarly, the autopsy results didn't prove or disprove that Hardy had a seizure. "That doesn't leave a trace," Bedrich said.

Plaintiffs' attorney Howard is leading a drive to consolidate U.S. litigation alleging economic damage from the Toyota recalls and defects. More than 40 class-action suits already have been filed, he said.

While the damage to individual Toyota owners may seem modest, it adds up, he said.

Altogether, some 6 million Toyota and Lexus cars and trucks are being recalled, with 1.7 million of them, including the Avalon in Southlake, subject to both recalls. Assuming that each car owner wins $500 in damages, the total comes to $3 billion.

A panel of multidistrict judges will hold a hearing in San Diego on March 25 on the consolidation of national litigation.

"The vultures are gathering. It becomes a feeding frenzy from a litigation standpoint," said Jeffrey Caponigro, president of Caponigro Public Relations Inc., with offices in Southfield and Tampa, Fla.

But the real cost to the automaker will hinge on the extent of the damage to the Toyota brand. "The effects of a tattered reputation are longer-lasting than the effects of a lawsuit," he said.

From The Detroit News: http://www.detroitnews.com/article/20100222/AUTO01/2220333/1148/Claims-hard-to-prove--disprove-in-Toyota-suits#ixzz0gH2jkYiG

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