04-1864. Denial of Motor Vehicle Defect Petition, DP03-007

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation.

ACTION:

Denial of petition for a defect investigation.

SUMMARY:

This notice describes the reasons for denying a petition (DP03-007) submitted to NHTSA pursuant to 49 U.S.C. 30162, requesting that the agency open a defect investigation into unintended acceleration involving model year (MY) 1996 and 1997 General Motors J-cars (Chevrolet Cavaliers and Pontiac Sunbirds).

FOR FURTHER INFORMATION CONTACT:

Bob Young, Office of Defects Investigation (ODI), NHTSA; 400 Seventh Street, SW.; Washington, DC 20590. Telephone: [phone].

SUPPLEMENTARY INFORMATION:

On September 23, 2003, NHTSA received a petition filed by Donald Friedman of MCR/LRI, Inc.; requesting that the agency “open a defect investigation into unintended acceleration involving 1996 and 1997 model General Motors J-cars (Chevrolet Cavaliers and Pontiac Sunbirds [sic] [Subject Vehicles]).”

The petitioner claims this request is based on a “report [he] received for GM” showing that it had received 660 complaints of unintended or sudden acceleration involving the subject vehicles. By comparison, the petitioner claimed, other GM models had far fewer complaints.

NHTSA has reviewed the facts claimed to establish that a defect investigation of the subject vehicles for unintended acceleration should be opened. The results of this review and our analysis of the petition is provided in the DP03-007 Petition Analysis Report, published in its entirety as an appendix to this notice.

For the reasons presented in the petition analysis report, there is no reasonable possibility that an order concerning the notification and remedy of a safety-related defect would be issued as a result of conducting the requested defect investigation. Therefore, in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission, the petition is denied.

Authority: 49 U.S.C. 30162(d); delegations of authority at CFR 1.50 and 501.8.

Kenneth N. Weinstein,

Associate Administrator For Enforcement.

Appendix—Petition Analysis—DP03-007

1.0 Introduction

On September 23, 2003, the National Highway Traffic Safety Administration (NHTSA) received a petition filed by Donald Friedman requesting that it “open a defect investigation into unintended acceleration [UA] involving 1996 and 1997 model General Motors J-cars (Chevrolet Cavaliers and Pontiac Sunbirds [sic^[1] ]).” In this petition analysis, we will refer to sudden acceleration incidents as “SAIs,” incidents of unintended acceleration as “UAIs,” and to the MY 1996-97 GM J-cars as the “Subject Vehicles.”

The petitioner claims, “The basis for this request is a report we received for GM ^[2] showing that it had received 380 complaints on unintended or sudden acceleration involving 1996 models and 280 complaints involving 1997 models [a total of 660 complaints]. This compares with an average of around 20 complaints per year per model on other GM models and no more than 10 complaints per year on J-cars of years other than 1996 and 1997.”

2.0 Background

On April 14, 1997, at approximately 11:51 a.m., 21 year-old Timothy Langston was driving his MY 1997 Chevrolet Cavalier on a two lane road in Cherokee County, Georgia with two minor passengers; Lee and Alana Anderson. It is alleged that, after cresting a hill at about 40 mph, the car accelerated to approximately 94 mph, whereupon Mr. Langston lost control of the vehicle and it crashed. Timothy and Lee were killed and Alana was injured.

On April 5, 1999 a wrongful death and personal injury lawsuit was filed in the State Court of Cobb County, Georgia on behalf of Mr. Langston and Mr. and Ms. Anderson.^[3] The suit alleges that the vehicle crash was due to unintended acceleration.^[4]

According to General Motors, its response to a plaintiff pre-trial discovery request included reports of alleged UA and/or SA incidents for all MY 1982 to 2000 GM passenger cars. In response to a separate discovery request, GM also produced reports concerning alleged brake failure in the subject vehicles.^[5]

On July 3, 2003, after receiving, reviewing, and tabulating “thousands” of GM customer complaints produced during discovery, the plaintiff introduced into evidence 235 non-duplicative reports of other incidents alleged to be substantially similar to that in Anderson (i.e., Other Similar Incidents or “OSI's”).^[6] Of these, 38 involved the MY 1996-1997 J-cars; 32 related to the MY 1996-1997 N-car platform,^[7] and 84 concerned other MY 1996 and 1997 GM passenger cars. Because, according to the Plaintiffs, “there would be no residual evidence that will categorically indicate the specific defect” due to “the destruction of the [Langston Cavalier], and the nature of the potential defects, including electrical malfunctions and computer errors,” ^[8] they introduced these alleged OSI reports as “Evidence of a defect in General Motors’ vehicles.” ^[9]

The plaintiffs retained Donald Friedman to offer expert testimony about the cause of the Langston crash. To aid in his analysis, the plaintiffs provided him with their tabulation of the thousands of reports received during discovery and copies of the J-car OSI reports. Mr. Friedman later referred to the plaintiff's tabulation as a “report for GM” in his NHTSA petition.

After receiving his petition, NHTSA wrote to the petitioner requesting a copy of the “report” and clarification of the data he presented. Without addressing our request for a copy of the report he identified initially, Mr. Friedman responded that his data could be found in pre-trial discovery material produced by GM in the Anderson case and referred us to General Motors.

Subsequently, General Motors provided information concerning both the 660 complaints cited by the petitioner and the alleged OSI's identified by the plaintiff.

3.0 Petition Data Analysis

3.1 SAI and UAI

The petitioner requested an investigation of the subject vehicles for “unintended acceleration.” He then states that the foundation for his request is a “report” documenting a substantial number of alleged “unintended or [emphasis added] sudden acceleration” complaints about the subject vehicles. Therefore, our analysis relates to complaints where either a SAI or UAI (SAI/UAI) was alleged. This is consistent with the plaintiff's—and petitioner's—approach in Anderson. For an explanation of the difference between SAI's and UAI's, please refer to footnote 4.

3.2 J-cars vs. Other GM models—Complaint Count

GM's discovery production in the Anderson case included customer SAI/UAI allegations for all GM vehicles (including J-cars) for MY's 1982-2000. In response to a separate discovery request, GM also produced braking-related complaints for the subject vehicles. Thus, the 660 complaints cited by the petitioner include allegations of unintended and/or sudden acceleration and braking-related issues involving the MY 1996-1997 J-cars. Since the complaint count for the other GM platforms does not include braking-related complaints, the J-car count is overstated by comparison.

To overcome this shortcoming, we analyzed the OSI's identified by the plaintiffs in Anderson.^[10] Based on the OSI report count prepared by the plaintiffs from complaints produced by GM in pre-trial discovery, we found the following MY 1996-97 GM passenger car platforms had these SAI/UAI report counts:

Table 1.—Alleged Report Counts for Other Similar Incidents Involving SA or UA

MY 1996-1997 GM platform (model)	SA/UA count
Z (Saturn)	8
A (Cutlass, Century)	10
F (Camaro, Firebird)	14
K (Deville, Concours, Seville, SLS, STS)	15
W (Lumina, Monte Carlo, Grand Prix, Cutlass Supreme, Regal, Century Custom)	15
N (Malibu, Grand Am, Achieva, Skylark, Cutlass, Alero)	32
J (Cavalier, Sunfire)	38

From this analysis alone, the petitioner's rationale—that the MY 1996-97 J-cars should be investigated for unintended acceleration because they have far more reports than other GM models—does not appear justified because the total number of alleged SAI/UAIs is directly related to the number of these vehicles on the road. Thus, everything else being equal, the subject vehicles may have more reports than other GM vehicle platforms but, without normalizing for variations in the on-road fleet of each model, this information can be misleading. Therefore the total number of alleged SAI/UAIs is insufficient on its own to assess risk. To overcome this problem, we normalized the report counts identified in Table 1 by dividing the number of alleged SAI/UAI reports by the number of vehicles built to obtain a report count rate. The normalized rates are presented below.

Table 2.—Report Rates for Other Similar Incidents Involving Alleged SA or UA

MY 1996-1997 GM platform (model)	Rate/100,000 Vehs
Z (Saturn)	1.39
A (Cutlass, Century)	5.52
F (Camaro, Firebird)	7.75
K (Deville, Concours, Seville)	5.21
W (Lumina, Monte Carlo, Grand Prix, Cutlass Supreme, Regal, Century Custom)	1.49
N (Malibu, Grand Am, Achieva, Skylark, Cutlass)	4.23
J (Cavalier, Sunfire)	4.99

Based on this analysis, using data produced by GM in the lawsuit prompting this petition, the risk of an alleged SAI/UAI involving the subject vehicles is within the range of other GM models.

4.0 ODI Data

ODI also looked at complaint counts in NHTSA's consumer complaint database. Our review identified 256 complaints coded as “Vehicle Speed Control” (VSC) ^[11] for the models identified in Tables 1 and 2. We then normalized this data to account for exposure, based on the number of vehicles built within each platform in MY 1996 and 1997, to determine whether incidents involving vehicle speed control malfunctions are more frequently reported to NHTSA by J-car owners.

Table 3.—NHTSA Report Rate—Vehicle Speed Control

MY 1996-1997 GM platform (model)	Rate/100,000 Vehs
Z (Saturn)	4.71
A (Cutlass, Century)	7.72
F (Camaro, Firebird)	6.64
K (Deville, Concours, Seville)	5.95
W (Lumina, Monte Carlo, Grand Prix, Cutlass Supreme, Regal, Century Custom)	7.05
N (Malibu, Grand Am, Achieva, Skylark, Cutlass)	10.15
J (Cavalier, Sunfire)	6.04

This analysis does not indicate that the subject vehicles (MY 1996-1997 GM J-cars) are experiencing vehicle speed control-related problems more frequently than other GM models.

5.0 Conclusion

Based on the foregoing analysis, there is no reasonable possibility that an order concerning the notification and remedy of a safety-related defect would be issued as a result of granting Mr. Friedman's petition. Therefore, in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission, the petition is denied.

Footnotes

1.  Pontiac's J-car model in MY 1996-97 was the Sunfire.

2.  The “report” referenced by the petitioner was a tabulation of GM customer complaints prepared by the plaintiffs in a product liability lawsuit.

3.  Anderson-Barahona, et al. v. General Motors Corporation, (case no. 99A1971-4 (Anderson)). Settled on September 12, 2003.

4.  “Unintended Acceleration” (UA) involves events that begin after the vehicle has reached an intended roadway speed. This differs from “Sudden Acceleration” (SA) where the event typically begins while the vehicle is stationary.

5.  Anderson: GM's Motion in Limine, June 3, 2003, p. 5.

6.  Anderson: Response to GM's June 3rd Motion in Limine, July 3, 2003, p. 3. ODI has not reviewed these complaints.

7.  Chevrolet Malibu, Pontiac Grand AM, Buick Skylark, and Oldsmobile Achieva, Cutlass, and Alero.

8.  Anderson: Response to Defendants June 3rd Motion in Limine, July 3, 2003, p. 2.

9.  Ibid, p. 3.

10.  Anderson: Schedules A, B, and C; Plaintiff's July 3, 2003 notice of filing documents in support of plaintiffs' response to defendants June 3, 2003 Limine motion.

11.  With NHTSA's recent rollout of the ARTEMIS consumer complaint repository, all complaints that may involve a SAI and/or UAI are coded (or in the case of reports pre-dating the roll-out, re-coded) as Vehicle Speed Control-related. These SAI/UAI complaints form a subset of all complaints where a problem related to vehicle (e.g., engine) speed control was alleged (including, for example, stalling complaints).