GM Chief Executive Officer Mary Barra testifies during a House Energy and Commerce hearing on Capitol Hill in Washington April 1, 2014. Congress is trying to establish who is to blame for at least 13 auto-related deaths over the past decade, as public hearings are held over two days on General Motors Co's slow response to defective ignition switches in cars.

GM CEO Mary Barra testifies before the House Energy and Commerce Committee as Congress tries to fix blame for long delays in recalling cars with defective ignition switches linked to at least 13 crash deaths. Photo by Kevin Lamarque/Reuters.

Protecting consumers from dangerous product defects should be the job of federal regulation, and often it is. But sometimes product injury litigation, carried out in the arena of the courtroom, plays a critical role in exposing hazards that elude regulators and that manufacturers conceal.

Two current, highly publicized examples are the General Motors ignition switch malfunction and the Toyota “sudden unintended acceleration” hazard, both serious defects that regulators failed to move against as promptly and vigorously as they should have.

Earlier this year GM recalled more than two million Cobalts and other vehicles with the defective ignition switches. If jarred, the switches can inadvertently shut down a car’s engine and electrical system, thus disabling its air bags, power brakes and power steering. Only now has the company admitted knowing about the defect for more than ten years, even though it was being sued as early as 2009 for crash deaths caused by the faulty switch.

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It turns out that the defect was not exposed by engineers from GM or the National Highway Traffic Safety Administration but by an outside engineer. Mark Hood was working for a plaintiff’s attorney in Melton v. GM, a Georgia lawsuit stemming from the death of a woman in a Cobalt crash, when his testing uncovered the defect and forced the car company to acknowledge it. His discovery, the New York Times wrote, “set in motion G.M.’s worldwide recall of 2.6 million Cobalts and other cars…”


Ben Kelley

As for the Toyota runaway-car hazard, which surfaced five years ago, the company has blamed both driver error and floor mat and pedal design problems. It belatedly recalled millions of cars to fix the latter, and most recently has paid out billions of dollars in settlements of a class action suit and a criminal charge by the U.S Justice Department. But Toyota has steadfastly denied that the sudden-acceleration phenomenon is caused by glitches in the vehicles’ electronic control systems, and NHTSA, after limiting testing, has backed the company’s position.

Plaintiff attorneys and their engineering experts have advanced the “electronic glitch” argument in more than five hundred runaway-car injury lawsuits that are pending against the company. Late last year a jury in an Oklahoma sudden-acceleration crash death case, Bookout v. Toyota, agreed with the argument. After hearing expert testimony by experts from both sides, the Bookout jury rejected Toyota’s “driver error” defense, found that electronic flaws were in fact responsible, and assessed the company $3 million in compensatory damages for the death of the car’s passenger. Before the jury could determine the amount of punitive damages, Toyota settled the case for an undisclosed amount. And the company, clearly shaken, quickly launched an intensive campaign to settle similar cases before they could go to trial.

The value of litigation in preventing injuries from unsafe products has been sharply contested by corporate tort-reform interests. According to the American Tort Reform Association, whose members include major corporations and insurers, such lawsuits have meant unreasonable increases in product liability insurance premiums paid by manufacturers, and have forced many firms to “discontinue product research, cut back on introducing new product lines, and raise prices.”

Of course, many of the businesses fighting to restrict product lawsuits are the same ones who’ve worked hard to keep safety rules and regulatory agencies weak. As a result, it has taken injury lawsuits to expose defects across a wide range of products, such as automobiles, medical devices, children’s products, prescription drugs, asbestos, and industrial chemicals, that might otherwise have gone undetected

In an ideal world, safety regulators might be able to identify and deal with every product defect promptly and effectively. But the reality is that regulatory agencies charged with that mission are chronically underfunded, understaffed, and hamstrung by slow-moving bureaucratic processes and resistance from industries they regulate.

The bottom line is that product-injury litigation, despite its drawbacks, will continue to make a decisive contribution to identifying and curbing unsafe products. In an analysis published in 2003, a group of public health experts at Johns Hopkins School of Public Health concluded that while litigation is “not a perfect tool for product-related injury prevention,” it can be a “critically important intervention” against unsafe products, “particularly where product regulation is absent or has failed to achieve an adequate level of safety.” It urged safety advocates to “consider litigation” as a viable option in their efforts to curb product hazards and the injuries they cause.

Ben Kelley, a former Department of Transportation official and a board member of the Center for Auto Safety, has served as an expert witness for plaintiffs in product liability cases.