Q&A: The never-ending battle for auto safety

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A few years after graduating from Harvard Law School and serving as a trial attorney with the U.S. Department of Justice, Michael Lemov was selected to be General Counsel of the National Commission on Product Safety. That appointment, together with some years as counsel to the House Commerce Committee, launched a career focused on product safety and consumer protection. Houston attorney Robert Ammons spoke to Lemov about his new book, Car Safety Wars: One Hundred Years of Technology, Politics, and Death.

Q:  Why did you write this book?

A:   I was looking for a good story with historical impact. While on Capitol Hill, I worked on the 1974 Amendments to the National Traffic and Motor Vehicle Safety Act. Although nothing in life is perfect, the book is mostly a surprising success story about the role that federal regulation, a couple of brave politicians, some private individuals, and some trial lawyers have had in reducing the death toll on our highways. Since the law was passed, more than 600,000 lives have been saved because of it. The savings to the economy have been in the billions.

Q:  The book details the auto manufacturers’ opposition to all or most federal regulation. Isn’t that what business does, fight being regulated?

A:   Not always and not all of them. But in the auto safety field, the companies fought the proposed law in 1966 when the death rate was more than 50,000 per year. There have been some notable exceptions: Mercedes had optional seat belts in cars before they were required, Volvo has broken ranks at times, and Ford had an optional safety package for a short time in 1956 models. But by and large, the auto industry has fought federal regulation and safety standards. The Big Three—Fiat Chrysler, Ford, and General Motors (GM)—opposed seat belts and air bags. They finally were brought kicking and screaming into the future.

Now, some companies feel that they get a competitive advantage from regulatory laws if the standards can be written to preempt personal injury litigation.

Q:  In the last few years, there have been massive recalls: Toyota vehicles for sudden acceleration, GM vehicles with ignition switch defects, and Takata air bags that explode like hand grenades. Why all the recalls?

A:  2014 was the biggest year for recalls in the history of the law: Something like 60 million cars were recalled. The problem for the manufacturers is cost. Automakers often weigh the bottom line and take a chance on evaluating the nature of the defect. Delay often pays off financially for manufacturers, but it never pays off for car owners and of course, not for the victims of accidents caused by safety related defects. 

Q:   What can be done about the delay in alerting the public about these defects?

A:    Allowing corporate officials who intentionally fail to take legally required corrective actions to be personally and criminally responsible would go a long way toward getting defect reports filed promptly and corrective action taken in a more timely fashion. We are talking about nothing less than life and death.

Q:  What role have trial lawyers had in the “car safety wars”?

A:   Trial lawyers and their clients have played an essential role in alerting the public to existing safety problems. On Capitol Hill, we followed and sometimes used the results of personal injury litigation to draft legislation. Congress and the public need examples of how unsafe motor vehicles actually harm people to help them understand what auto safety means to the public.

Q:  What can be done to strengthen government enforcement of reporting obligations?

A:   In the 1980s, the National Highway Traffic Safety Administration (NHTSA) lost 300 staff positions in budget cutting by the Reagan administration. They never got them back. We are all paying for it now. The agency is woefully underfunded and has to rely in large part on an honor system when manufacturers respond to, or ignore safety defects. Better staffing and funding for NHTSA and stronger penalties for not timely reporting defects to the agency and to the public certainly would help correct the current problems.

Q:  What battles are on the horizon?

A:   Upgrading the federal safety standards that no longer reflect improvements in technology is a must. The current federal frontal barrier crash test is conducted at 35 miles per hour. About 40 years ago, the U.S. government funded and private companies built an experimental research safety vehicle (RSV). When the RSV was crash tested at 50 miles per hour, it did better than many cars sold today. Everyone walked away. It is shocking that we could build an experimental vehicle like that 40 years ago, but the federal standard does not require manufacturers to meet a 50 mph test now. Other big issues are rear seat belts, stronger roofs, and the quality and safety of the dozens of computers now used to run our automobiles. 

Q:  What do you think about the advent of self-driving cars?

A:   It deeply concerns me. There are dozens of computers that assist in the operation of vehicles—systems such as steering and braking. Yet there is no federal safety standard at all, even to trigger a warning light if something is wrong with any of those computers. If we don’t have safety standards on electronics now, driverless cars really concern me.

Q:  What are the big impediments to auto safety?

A:   First, there is the industry’s general opposition to upgraded standards. But there also is the issue of sealing of court records in cases that involve litigation over safety defects. The overuse of protective orders hurts safety efforts nationally. That hurts the development of new standards. I would hope that the trial bar would, to the extent it can, resist efforts to seal court records and that state legislatures would prevent sealing of anything other than bona fide trade secrets. Court records, depositions, and discovery should not be sealed on a motion by any party.

Q:  Are the car safety wars over at this point?

A:  No. The battle never ends. There have been big victories for drivers and consumers along the way. But there must be eternal vigilance. Over the years, victories can be eroded in a multifaceted political system like ours. The death rate per miles travelled has decreased by an amazing 80 percent over the last 50 years. But we still lose more than 30,000 people a year on the roadways. People must be reminded what safety regulation, supplemented by private litigation and advocacy, has done for them—and keep moving forward.