(Helen89/iStock photo)

On the last day of 2015, Berta Orellana picked up her seven-year-old grandson from daycare in a brand new Toyota and headed on a road trip with the boy and two of her children, planning to spend the holiday in Las Vegas with her daughter who lived there.

Orellana, then a 51-year-old delivery driver for Amazon, left the minivan she used for work at home in Northridge, California. Her husband, a musician who was skipping the trip so he could play a New Year’s Eve gig, had rented a 2015 Toyota Yaris for Orellana to use for the trip.  

By the time Orellana noticed a few issues with the rental–shaking at stop lights and an odd buzzing noise when she stepped on the gas–the Avis Car Rental store was already closed for the holiday. Orellana initially wasn’t too concerned, as she would later tell California Highway Patrol (CHP) investigators, according to a crash report obtained by FairWarning, figuring the problems had something to do with the car being so new.

After a stop at McDonald’s for burgers and fries, the family was traveling on the I-10 Freeway about 40 miles East of Los Angeles, when Orellana felt the Yaris suddenly surge in speed, she and her 16-year old son, Guillermo, told investigators. She put her foot on the brake and felt the pedal sink to the floorboard, but the car didn’t slow down.

Orellana started to swerve around the traffic. Other drivers saw the Yaris race by at up to 100 miles per hour, the crash report said. Orellana moved to the right lane when she saw an exit, hoping to get off the freeway before causing an accident. She tried pulling the emergency handbrake; the car still didn’t respond.

Then people getting gas and food off the freeway heard what sounded like an explosion. The Yaris had jumped a curb along the shoulder at the end of the exit ramp and skidded into a Toyota Solara stopped at an intersection. The impact destroyed the Solara, essentially leaving behind a pile of scrap metal, and sent the Yaris through a fence and into a palm tree. After hitting the tree, the Yaris landed on the ground, back on all four wheels.

All four people in the Solara were killed, along with Orellana’s seven-year old grandson. The five deaths marked a grim milestone for Toyota Motor Co., as the deadliest accident blamed on the phenomenon known as sudden unintended acceleration.

But by late 2015, attorneys handling sudden acceleration complaints had negotiated a settlement process that effectively removed a notorious safety scandal from the public radar. And so, nearly four years later, in 2019, Toyota quietly reached settlements with families of people who were killed in the Near Year’s Eve 2015 crash. In court papers, the families had argued that the Toyota Orellana drove was defective and had suddenly accelerated on its own, just as have hundreds of other people who later reached confidential settlements with Toyota.

Matthew Pusateri Sr., shown here with his son Matthew Jr., was killed along with four others in a December 31, 2015 crash that survivors and their families blamed on sudden unintended acceleration. Pusateri and friends  were en route to a New Years Eve party when their car was struck by a speeding Toyota Yaris.

Without admitting liability, Toyota since 2014 has settled 537 claims blaming sudden acceleration for crashes that killed or seriously injured people, according to a court document Toyota filed last month. Many, but not all, of the lawsuits asserted that electronic defects were the cause of sudden acceleration.

“Toyota has settled most of them, because there is some indication of something going wrong that doesn’t seem to be explained,” Don Slavik, a plaintiff attorney appointed by U.S. District Judge James Selna to assist in the litigation against Toyota, told FairWarning.

How much Toyota has paid in settlements is not publicly known because the company requires plaintiffs to sign a non-disclosure agreement as a condition of each settlement.

Automotive safety advocates see the complaints as a sign that Toyota and federal regulators failed to properly address the root of the problem when they had the opportunity years earlier.

Ten years after off-duty CHP officer Mark Saylor and his family died in an out-of-control rental Lexus, Toyota has moved on from the worst scandal in its history, involving claims that its cars had surged at uncontrollable speeds.

Staunchly denying that faulty electronics were ever the cause, Toyota recalled millions of vehicles in 2009 and 2010 to fix sticky pedals and replace floor mats it said could slide onto the accelerator. The controversy triggered congressional hearings and dominated newscasts.  In 2014, Toyota agreed to pay a then-record auto industry fine of $1.2 billion to the Department of Justice, as part of a deferred prosecution agreement, after authorities accused Toyota of concealing the floor mat defect from government regulators and consumers.

Federal regulators joined Toyota in asserting that electronic flaws played no part in the crashes, agreeing that driver errors and the sticky pedal and floor mat problems were to blame.

The Toyota and Lexus names, both owned by Toyota, quickly bounced back and continue to be regarded by U.S consumers as some of the most dependable car brands.

But in three courthouses in the United States, Toyota is continuing to settle unintended acceleration suits brought by crash survivors or families of those killed.

Toyota declined to answer written questions from FairWarning, but emailed a brief statement:

“We continue to work in good faith to resolve cases wherever possible,” the statement said.  “In our view, this process brings greater efficiency to the resolution of pending cases and provides a clear path forward for those claims that cannot be resolved outside of trial.”

Thomas Livernois, an engineer who has served as an expert witness for Toyota and other auto makers, argues that the settlements aren’t proof of defects.  “Companies settle cases all the time when they haven’t done anything wrong,” he said.

But others disagree. The Justice Department fined Toyota “over lying about a floor mat,” says Sean Kane, an automotive safety researcher and consultant who heads the firm Safety Research & Strategies, and has worked for plaintiffs in litigation against Toyota.

“How many floor mats caused sudden acceleration? Not many,” he says. “What about all those other vehicles that didn’t have the errant floor mat?”

In 2010, in the midst of the controversy, the National Highway Traffic Safety Administration commissioned engineers from the National Aeronautics and Space Administration (NASA) to study unintended acceleration in Toyotas. Included in the group were three NASA scientists whose work specifically focuses on spacecraft and satellite failures.

“We pay close attention to the automobile market as a clue to what would happen here with spacecraft,” Dr. Henning Leidecker, a failure scientist with NASA’s Goddard Space Flight Center, said in an interview with FairWarning.

The scientists were tasked with examining a Toyota that its owner had said was randomly stalling and then jerking forward uncontrollably when she pressed the gas pedal. Leidecker’s NASA colleague Dr. Lyudmyla Panashchenko, examining electronic components in the car’s pedals, found two tiny crystalline growths she identified as “tin whiskers,” which are known  to develop in other technology that uses tin parts and that are thought to cause electrical malfunctions.

Anthony and Monica Flores had just returned from a trip to the Grand Canyon when they were killed in a New Years Eve 2015 crash that family members blamed on a sudden unintended acceleration. The Toyota Solara in which they were riding was idling at an intersection when it was struck by a speeding Toyota Yaris. Altogether, five people died in the crash, including a 7-year old boy in the Yaris and all four occupants of the Solara.

Panashchenko “confirmed that tin whiskers were growing in these pedals..[and] that it had a potential to create a difficult to drive or impossible to drive Toyota,” Leidecker says. The spacecraft failure team wrote up their findings and submitted them through the chain-of-command at NASA.

Although a NASA report in 2011 mentioned the finding of tin whiskers, a summary and press release issued by NASA said the team found “no evidence that a malfunction in electronics caused large unintended accelerations.”

Shortly after the report was published, Transportation Secretary Ray LaHood held a press conference assuring the public unequivocally that “there is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”

Leidecker contends that LaHood failed to acknowledge the limitations of the NASA study — namely, that the scientists didn’t have access to Toyota parts from high-speed sudden acceleration crashes — and ignored the tin whisker findings.

LaHood “did not make it clear that there were electrical problems that had been found and confirmed,” Leidecker said. (LaHood, now a policy analyst at the law firm DLA Piper, did not return messages).

Leidecker and two colleagues later published papers expanding on the discovery of tin whiskers in the Toyota parts. Their research fueled claims by plaintiffs’ attorneys that electronic defects had caused unintended acceleration. (Leidecker and the other NASA scientists are not involved in the lawsuits).

In a landmark case, lawyers for an Oklahoma City driver in 2013 commissioned an analysis of the car’s source code, or the code that powered the computer system of a Toyota Camry that allegedly accelerated on its own.

Plaintiffs expert Michael Barr prepared an 800-page report describing multiple coding flaws that he said could affect electronic throttle controls. Evidence introduced at the trial included tire skid marks, the result of the driver pulling the emergency parking brake in a failed attempt to stop the car.

The jury ruled in favor of the plaintiff, Jean Bookout, marking the first time that Toyota had lost a case implicating its electronics system. The evening after the verdict was announced, but just before the jury was about to decide on punitive damages, Toyota abruptly reached a confidential settlement with Bookout and the family of a friend who died in the crash.

“No matter what number the jury awarded, it would [have looked] really bad,” says Slavik, the personal injury attorney, who consulted on the Bookout case.

Following the verdict, Toyota established a standardized procedure for handling its remaining sudden acceleration claims. It concentrates the serious cases in three courts — state courts in Houston and Los Angeles, and the U.S. District Court in Los Angeles.

Last month, Toyota lawyers reported that the company is nearly finished settling the cases, following the 537 it has resolved since 2014. Only six claims remain, suggesting that there have been fewer complaints in recent years.

Following the New Year’s Eve crash in 2015 in which five people died, investigators determined that there was no alcohol or drugs in Orellana’s system, and that she had a clean driving record.

The model she was driving would later be recalled for a problem in the shock assembly that could cause drivers to hear “abnormal noises” when turning the steering wheel, a current search of the car’s Vehicle Identification Number  in the National Highway Traffic Safety Administration database reveals. If left unrepaired, the problem can cause a “loss of vehicle stability” and increase the risk of the crash. That may explain the shaking and the noises that Orellana and her children described at the beginning of the drive.

Because of the unusual circumstances of the crash, the CHP sent special investigators from its Multidisciplinary Accident Investigation Teams to do a follow-up investigation and write a supplemental crash report, which was obtained by FairWarning. They examined environmental factors and any potential mechanical issues in the car. As part of the investigation, they solicited the help of five Toyota engineers and analysts.

Jeffrey Willey, 29, one of the five who died in the New Years Eve 2015 crash.

The Toyota and CHP investigators ultimately determined that the mechanics were working properly in the Yaris, as was a brake override system. Though the MAIT investigators captured a photograph of the hand brake pulled all the way up, they wrote that they found no evidence of sudden acceleration defects in the vehicle. In the absence of other possible causes, they concluded that Orellana had mistakenly pressed on the gas pedal for a total of 23 seconds.

The CHP recommended that Orellana face vehicular manslaughter charges, a standard recommendation whenever a crash results in someone’s death. “We always have to recommend it if someone is deceased,” CHP Officer Mike Migliacci told FairWarning. But the San Bernardino District Attorney’s office never prosecuted the case, likely because the families of those killed declined to press charges.

The families of Matthew Pusateri and Jeffrey Willey, two friends killed in the Solara, filed lawsuits blaming sudden acceleration in the Toyota Yaris for their deaths. The suits also named Avis and Orellana as defendants.

Orellana, meanwhile, also sued Toyota, blaming unintended acceleration.

An attorney representing Matthew Pusateri’s son told FairWarning that Toyota settled his case this year, and that a non-disclosure clause prevents disclosing the exact terms. Attorneys representing the Willey and Orellana families did not return messages, but court records indicate Toyota reached a settlement with Orellana in August. Susan Willey, Jeffrey’s mother, also settled.

According to a news report shortly after the crash, Willey and Pusateri, both 29, and victim Anthony Flores, 30, were close friends since they were teenagers. Anthony and Monica Flores, 37, the fourth victim in the Solara, had been dating for four years.

The settlement process does not tell the full story of sudden acceleration complaints, because only cases that resulted in serious injuries or deaths are included. Complaints by drivers alleging economic losses were settled by Toyota in a separate $1.1 billion class-action lawsuit in 2013.

Kane, the car safety consultant, says he continues to field calls from drivers who describe their Toyota or Lexus cars suddenly surging in parking lots.  He says that most of these events occur when cars are initially traveling at lower speeds. The cases aren’t serious enough to take to court, but he says that the events make people afraid to drive their own cars and can raise insurance rates if the crashes resulted in property damage.

“It is unbelievable how many sudden unintended acceleration events continue to occur post recall,” Kane told FairWarning. “There are very few high-speed sudden unintended acceleration events, but the lower speeds are a dime a dozen.”

 

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