What's Going on With Toyota? Recall Prompts Panic, While Reports of Unintended Acceleration Car Accidents Emerge

Derek Brandt is a partner at the Simmons firm. He specializes in commercial litigation and currently represents the owners of Toyota and Lexus vehicles in the first-filed class action relating to sudden unintended acceleration, along with co-counsel McCuneWright LLP and Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP. Derek and his co-counsel are also currently investigating potential unintended acceleration lawsuits for families injured in a recalled Toyota vehicle.

A lot of people seem to be asking this question lately.  Well, what is going on with Toyota?
 
Toyota finds itself at the crosshairs of governmental, public, and legal scrutiny these days.  Some commentators are calling this the most profound corporate public relations test since the Tylenol cyanide recalls of 1982.  But the truth is, while Johnson & Johnson was and has been almost universally lauded for its careful, professional and responsible handling of the Tylenol situation almost three decades ago, Toyota seems almost determined to make every misstep it can. 

Over a period of almost ten years, at least seventeen different Toyota and Lexus models have been the subject of driver complaints relating to sudden unintended acceleration.  Thousands of complaints have been registered with the National Highway Traffic Safety Administration (“NHTSA”) or with Toyota. 

Many drivers who have experienced these harrowing unintended accelerations say that their car shot like a bolt, on its own, and that nothing they could do would stop it. 

These complaints have been linked to hundreds of car accidents and multiple fatalities.  But not until the high-profile accident killing off-duty California Highway Patrol officer Mark Saylor and three members of his family in August 2009 did Toyota finally acknowledge that there might actually be a problem. 

The Saylors’ Lexus accelerated out of control to over 100 mph, while they made a frantic 911 call explaining that they couldn’t slow the vehicle.  Forced, finally, to respond, Toyota offered this diagnosis:  blame the floor mats.  But Toyota couldn’t scapegoat the floor mats when a Texas family was killed in an inexplicable accident the day after Christmas 2009 – and police discovered their floor mats in the trunk. 

It was then that Toyota started to make noise about brake pedals and accelerator pedals.  Finally, in January of this year, Toyota temporarily halted production of certain models and told the public that it had a “comprehensive” fix for the sudden unintended acceleration problem. 

But, somehow, that “comprehensive” fix doesn’t extend to many of the models and model-year vehicles that have experienced sudden unintended acceleration incidents.  And, while Toyota claims that the accelerator problem is due to friction or wear-and-tear which can be exacerbated over time, Toyota’s fix, somehow, doesn’t extend to the oldest model-year cars which have experienced the problem. 

Putting it all together, it may be awhile before we  know whether Toyota even now has properly diagnosed the problem that it denied for so long and then blamed first on floor mats, and the on brake pedals, and then sticky accelerators.

Most of us know now that the Tylenol cyanide poisoning was believed to have been perpetrated by a third party over which Johnson & Johnson had no control.  But that doesn’t mean that we can’t compare Johnson & Johnson’s handling of that very serious situation with Toyota’s response to its current mess. 

Seven people within a single regional market died from the Tylenol poisonings.  Within six days of the first death, Johnson & Johnson instituted a nationwide recall of Tylenol products.  Toyota, by contrast, spent years denying a problem even existed with sudden unintended accelerations and only began to make piecemeal fixes while ignoring its customers' and the public’s safety, eventually settling on a “comprehensive” fix that seems to be anything but “comprehensive.”   

Undeniably, there has been a lot of talk about the Toyota recalls suddenly.  But beyond talk, along with our co-counsel at McCuneWright LLP and Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, we represent the owners of Toyota and Lexus vehicles in the first-filed class action relating to sudden unintended acceleration.  So, we have been at the forefront of this issue for some time. 

And, on February 3, 2010, we re-enforced our leadership role by filing a Motion for Preliminary Injunction asking the court overseeing that case to order Toyota to extend its recall to all of the model and model-years subject to sudden unintended acceleration and to order Toyota to employ a failsafe brake over-ride mechanism which can prevent sudden unintended acceleration accidents – no matter what their root cause.

So, if you or a loved one has been injured in an accident relating to a Toyota or Lexus sudden unintended acceleration, please contact us.  We’ve been at the front of this litigation since the beginning.

Mesothelioma & Asbestos Round-Up

Mesothelioma & Asbestos Round-Up: January 15, 2010

In the past few weeks, two major stories concerning asbestos exposure have appeared in the news. While it’s encouraging to see an international spotlight being put on this serious issue, both stories underscore troubling themes in the response to asbestos exposure.

In each of these cases, the focus is on the aftermath of asbestos exposure rather than on prevention. Each is marked by bitter wranglings and arguments about responsibility, liability, and compensation. And while in each case, there have been some positive outcomes, they also serve to illustrate how political and commercial self-interest can sometimes get in the way of justice.

The Ongoing Effort to Clean Up Libby, Montana

Let’s start in the U.S. In the past, we’ve reported on the heartbreaking case of Libby, Montana, where asbestos contamination sickened and killed miners and their families. More than 30 years after the company became aware of the danger – and continued to expose local residents – the mining firm W.R. Grace was finally brought to trial on criminal charges.

In May, 2009, victims and their families were dealt yet another blow as W.R. Grace and three of its former executives were acquitted of all charges. The New York Times reported that during the trial, Judge Donald W. Molloy excluded some compelling evidence offered by prosecution as “prejudicial,” including company memos in which executives discussed the costs of people dying in Libby. Swift on the heels of this decision, the EPA declared a public health emergency in Libby, and the Department of Health and Human Services earmarked $6 million to finance treatment at the nearby Lincoln County Health Clinic.

Libby again appeared in the headlines in December during debates about the recently passed health care bill. Several news outlets noted that, while not specifically named, Libby would receive benefits “buried” in the proposed bill as a proposal to expand Medicare coverage to cover certain victims of “environmental health hazards.”

Montana senator Max Baucus has defended the proposal, noting that it’s a necessary and responsible part of this country’s health care plan, which should protect future victims as well as those in Libby. “The people of Libby were poisoned and have been dying for more than a decade,” he said. “New residents continue to get sick all the time. Public health tragedies like this could happen in any town in America. We need this type of mechanism to help people when they need it most.”

Scottish Insurers Lose Compensation Battle

The issue of compensation for victims of asbestos exposure has also taken center stage in Scotland. During a 22-day hearing, UK insurance companies sought to overturn a law giving victims of pleural plaques the right to compensation. Pleural plaques is a benign scarring of the lungs caused by asbestos exposure. On January 8, 2010, the challenge to the law was rejected, and the new act was upheld, requiring that insurers compensate claims by sufferers of this condition.

The battle was a win for victims, and sheds light on the lengths to which insurance companies will go to avoid paying compensation. According to the insurers involved in the hearing, pleural plaques did not count as a “disease,” even though the condition indicates a higher risk for developing mesothelioma.

The Association of British Insurers (ABI) intends to appeal the decision, declaring, “This is not the end of the road.”

But Member of Scottish Parliament Stuart McMillan highlighted the other side of the argument: "In Scotland we have the legislation to ensure those who should be compensated for their injuries receive that compensation  not to deprive people of legitimate compensation as the insurance companies were attempting."

And general secretary Alan Ritchie’s comment underscored the competing interests that drove this challenge, saying, "The insurance industry were using the judicial review to delay paying compensation to asbestos victims both north and south of the border. It was a very cynical manoeuvre and I am pleased it has failed."

While new legal provisions and protections such as these can help redress some of the damage done by asbestos exposure, all too often the legal system is the last recourse for victims who have been poisoned, exploited, and ignored. The crusade to ban asbestos and raise awareness about this deadly substance must be our first line of attack against mesothelioma.

Simmons Employee Foundation Gives 50,000 Pounds of Food Goes to Madison County Food Pantries

On Friday the Simmons firm, through the efforts of the Simmons Employee Foundation, completed its annual food drive, raising over 50,000 pounds of food for Madison County food pantries. Today we're delivering that food to four different shelters throughout the county: 

Crisis Food Center in Alton
Collinsville Area Ministerial Association
Community Care Center in Granite City
Community Hope Center in Cottage Hills

Thank you to our employees that opened their hearts and wallets to give back. Thank you to those who worked up a sweat to load the trucks. And thank you to all of these food pantries for the critical, life changing work you do.

I can't think of a more satisfying way to start the week of Thanksgiving. 

Remembering Ernie Conry

We lost one hell of a fighter and good man this week. Ernest Conry, a husband, father and friend to many, lost his battle with mesothelioma on September 18, 2009. He passed away at his home in St. Louis, Missouri.

Ernie lived with pleural mesothelioma for over 7 years. His resilience against the disease is truly a testament to the power of a positive attitude. He was always quick with a joke and happy to spread the cheer. For years he attended the Mesothelioma Applied Research Foundation's annual symposium, where he took it as his mission to bring a bit of laughter to the many families and patients in pain.

Ernie once said, "The thing to do is get up and do something. Don’t let the cancer bog you down. Wait until someday it might bog you down, but my God, if you are still moving, keep moving. Go on about like you don’t have a disease. So the thing to do is get up and do something. Keep moving and enjoy it. You know, take the life that you have going for yourself and make use of it."

Born in 1933 in Tennessee, Ernie moved to St. Louis as a child. He entered the automotive field at age 17, becoming an apprentice auto mechanic at a Ford dealership. He was drafted into the army in 1953, and arrived in Inchon, Korea, six months after the armistice had been signed. From 1950 to 1998, when he retired on a union pension, Ernie worked consistently as a mechanic at a series of Ford dealerships.

Once diagnosed with mesothelioma, he took it upon himself to visit St. Louis area union halls and mechanic shops, distributing literature about the dangers of asbestos. He gave numerous seminars to our staff here at the firm. He taught us a lot - not just about asbestos in the auto industry, but about strength, character and resilience.

Ernie gave freely of himself, and all he ever expected in return was the pleasure of good company. He was a wonderful man. And he will be dearly missed.

An Ounce of Prevention...American Public Health Association Calls on Congress to Ban Asbestos in the United States

The topic of asbestos is always shrouded in a haze of misunderstanding, half understandings and disinformation.  Many people believe that asbestos has been banned in the United States.  It has not.  Similarly, many people also believe that asbestos is a problem that is going away. Sadly, it isn't going anywhere.  As a matter of fact, asbestos is still routinely mined in Canada and is sold directly and indirectly for use in products regularly sold in the United States.

Last week I found myself reading Andrew Schneider’s blog, “Cold Truth.”   Schneider, a Pulitzer prize winning journalist, noted that the American Public Health Association at long last is calling on the U.S. congress to enact a ban on the manufacture, sale, export, or import of all asbestos-containing products. Mr. Schneider correctly points out that the United States has basically never had any kind of meaningful ban on asbestos.  For a brief time in the late 80’s asbestos was banned from being imported into the United States.  However, this ban was defeated by legal challenges funded almost entirely by a Canadian industrial group.

Mr. Schneider didn’t discuss the details of the Canadian group involved.  I would like to put a little light on them now.

The Canadian group, then known as the “Asbestos Institute” is, to my way of thinking, exactly analogous to the lobbying powers used by the tobacco industry.  The Asbestos Institute routinely denied, even until very recently, that asbestos was a carcinogen.  They deny that their products hurt anyone.   And when the facts aren’t with them, the Asbestos Institute does anything and everything in its power to protect its industry, public health be damned.

Of course, the world has come to realize that asbestos is deadly.  So to avoid the stigma of “asbestos,” the Asbestos Institute changed its name.  They are now called “The Chrysotile Institute.” Now they don’t deny that asbestos CAN cause cancer, they just deny that THEIR asbestos causes cancer.  Specifically, they state that even though chrysotile is a form of asbestos, it is a harmless form of asbestos. They go on to say that, even if their asbestos were dangerous, if properly used it's as harmless as mother's milk.

Of course, this is complete hogwash, and they know it.  Their main tactic is to keep anyone from ever discussing the dangers of asbestos.  In a recent newsletter The Chrysotile Institute crows about keeping the topic of chrysotile out of the Rotterdam convention of industrial nations. Note that the topic of banning chrysotile wasn’t even on the table.  This was simply a request that chrysotile asbestos be included on a list of hazardous substances and chemicals.

As mentioned at the outset, the topic of asbestos is always shrouded in misunderstanding.  Much of the misunderstandings are intentionally perpetuated.  The asbestos industry has killed hundreds of thousands of people, just like the tobacco industry.  As long as there is money to be made, the asbestos industry will stop at nothing to continue the mining, sale and export of their deadly products.

This is why it is important, as Mr. Schneider observes, that the American Public Health Association is at long last taking a stand on this issue.  Mr. Schneider quoted Linda Reinstein, Director of the Asbestos Disease Awareness Organization on this.  “APHA set a precedent with strong language aimed at preventing asbestos exposure to eliminate deadly diseases.  We can’t let history repeat itself – it is time to ban asbestos and fund educational and research programs,” says Linda Reinstein.

Benjamin Franklin is famously quoted for saying “an ounce of prevention is worth a pound of cure.”  This, in the case of asbestos disease, is painfully true.  All asbestos diseases can be prevented.

The Simmons firm has been a leader in funding research in finding a cure for asbestos diseases.  More than anything, we want our clients, and all asbestos victims, to be cured.  More fundamentally, though, we would like for people not to get asbestos diseases at all, which is why we support a meaningful federal ban on the mining, use, import and export of any and all asbestos and asbestos containing products.

ADAO Issues Urgent Message Encouraging Others to Spread the Word About the Dangers of Asbestos Exposure

Kansas City Family Affected by Mesothelioma Makes Headlines, Fights On

Earlier this year the family of Wendell Mason, who died of mesothelioma, was featured on the local NBC station in Kansas City about mesothelioma and the dangers of asbestos exposure in the home.  Last week the Masons returned to the news in an article titled "Confronting the Needless Tragedy of Mesothelioma." The article was by Thomas Bogdon and appeared on the online news site KCTribune.com.

The good news, as cited in the article, is that the city of Olathe, Kansas, proclaimed September 26 as Mesothelioma Awareness Day, thanks in part to the work of Elizabeth Mason and her two grown daughters and grown son. This is an important achievement, and I applaud the Masons for their dedication to building awareness.

The bad news, as I told Mr. Bogdon when he interviewed me for this article, is that asbestos - a carcinogen known to cause mesothelioma - continues to be imported into the U.S. The need for research and better treatment options continues to remain urgent and dire for the thousands of families currently fighting against the disease.

I applaud Mr. Bogdon for covering this difficult subject in such a thoughtful and compassionate manner. The Masons are a courageous family, and it's wonderful to see their hard work pay off.