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Brett Emison
Brett Emison
Attorney • (866) 735-1102 Ext 461

Dear Ted Frank…

28 comments

Ted Frank lied about me in a blog post (apparently without comments enabled), so I will answer his accusations here.

First, a little background.

On July 13, 2010, Ted Frank wrote a short blurb at overlawyered.com commenting on a bogus Wall Street Journal story that supposedly exonerated Toyota of fault in the sudden acceleration problem (at least regarding electrical causes of the defect). Among other sanctimonious things, Frank wrote:

Will plaintiffs’ lawyers who have been conspiracy-theorizing about a non-existent electronic defect withdraw their class actions and product-liability suits, much less apologize? How about AP and the news media? Don’t count on it.

The next day, it turns out that sources confirmed that Toyota itself had planted the report and that even Toyota conceded that the sudden acceleration investigation was far from finished.

So I made reference to Ted Franks' post in my round up of posts confirming that Toyota planted its own "we did nothing wrong" story. Specifically, I said:

So, to paraphrase Ted Frank at overlawyered, will Toyota apologists who have been blindly defending Toyota in the face of corporate malfeasance second only to BP apologize to the families of the hundreds of people killed by Toyota sudden acceleration? As he said… Don't count on it.

As you can see, I didn't personally attack Ted Frank. I didn't even really call him out that much. I simply turned his own snarky phrase (that was originally directed at trial lawyers) around on him.

This upset Ted Frank who then posted a reply (at a different blog site) (and that apparently did not have comments enabled when I viewed it) saying "Plaintiffs' lawyer lies about Toyota". Frank says I was "attacking him" and that I "claim[ed] (without any evidence) that Toyota misled the public…." He also said I made "multiple false statements." None of what Frank wrote is true.

Let's set the record straight.

(1) There have been more than 100 deaths reported as caused by sudden acceleration. For example, The Los Angeles Times reported at least 102 deaths from Toyota sudden acceleration back in March:

More than 100 deaths have now been blamed on sudden acceleration of Toyota Motor Corp. vehicles, nearly twice the number that had been reported two months ago, according to a Times review of public records.

Update [July 18, 2010]: Ted Frank continues to be obsessed with my use of the phrase "hundreds" in describing the number of reported Toyota sudden accelration deaths (see the additional update and Ted's comments below). Apparently, it is my use of this term ("hundreds") for which Frank has attempted to brand me a "liar".

Although I have clearly set forth the precise number to which I was referring in the two paragraphs above, let me include the dictionary definition of the term "hundreds" in order to confirm that I have used the term appropriately.

From Dictionary.com:

"4. hundreds, a number between 100 and 999, as in referring to an amount of money: Property loss was only in the hundreds of dollars."

and

"4. hundreds The numbers between 100 and 999: an attendance figure estimated in the hundreds."

(2) Toyota planted "inaccurate and misleading" statements and reports about an earlier NHTSA investigation very similar to Toyota's planting of the current misleading story. Toyota appears to have done the same thing again.

Federal safety regulators have sharply rebuked Toyota Motor Corp. for issuing "inaccurate and misleading" statements asserting that no defect exists in the 3.8 million vehicles it recalled after a Lexus sedan accelerated out of control in San Diego County, killing four people.

(3) No one is lying about Toyota. National and international experts have questioned what is actually causing Toyota's sudden acceleration problems. Many examples of sudden acceleration simply could not have happened the way Toyota says they are happening. The most telling example involves a man named Kevin Haggerty.

Haggerty owned a 2007 Toyota Avalon that experienced at least 5 different sudden acceleration events. Haggerty did not have accessory floor mats and his OEM mats were secured in place. Sticky pedals couldn't have caused the problem because he didn't have his foot on the pedal. On Haggerty's final incident, he was actually able to drive the vehicle while the engine was racing out of control into his local Toyota dealership.

He got to the parking lot, shifted to neutral and stopped the car with its brake smoking and engine racing out of control. He got out of the car and the engine was still racing (no pedal misapplication) Service technicians were able to look at he car and confirm the unintended acceleration was not caused by floor mats, sticking pedals or driver error. They also confirmed no computer error codes (meaning the computer was not detecting whatever was causing the problem).

(4) It is Toyota who attacks others.

(5) Toyota puts dollars (or in its case, Yen) in front of safety. Toyota even bragged that it saved $100 million by delaying the sudden acceleration recall. How many people had to die for Toyota to save its $100 million?

(6) Toyota said it did safety testing on sudden acceleration when it didn't. Toyota told Congress under oath that it hired a company called Exponent to investigate causes of sudden acceleration to help Toyota find out why it was occurring. That's not why Toyota hired Exponent. Exponent's actual report confirmed that Exponent was hired by Toyota's litigation defense attorneys to attack a professor from Southern Illinois University.

(7) Toyota lies. Probably too many time to document, but let's document a few.

No, Ted. I didn't lie. I didn't even exaggerate. Toyota's record on sudden acceleration is clear. But, I have to give you this – you have set yourself up a nice little straw man:

Assuming no political interference (a not especially-safe assumption in the Obama administration, which has repeatedly politicized science when it served its purposes), don't be surprised when the NHTSA report says exactly what the Journal reported it will.

No matter what NHTSA finds you will declare victory in another snarky "I told you so" post. If NHTSA's findings don't turn up an electronic defect and even if they are inconclusive, you'll declare victory. If NHTSA does find a problem, you'll simply blame it on interference from trial lawyers, the president, or maybe aliens from outer space.

Update [July 18, 2010]: Ted Frank continues to go off the deep end (I must have really hit a nerve). Frank updated his post to include more fiction, completely made up statistics, more lies and an additional comment claiming that I kill people for money. Wow.

The phony scandal ginned up by trial lawyers will, at the end of the day, have killed more people than the imaginary electronic defect. Remember: trial lawyer lies don't just steal, they kill.

In my original post on July 15, I said:

… will Toyota apologists who have been blindly defending Toyota in the face of corporate malfeasance second only to BP apologize to the families of the hundreds of people killed by Toyota sudden acceleration?

Then, in the response to Ted above, I said:

(1) There have been more than 100 deaths reported as caused by sudden acceleration.

Ted Frank ignores everything else posted above, but says these two particular statements about reported Toyota sudden acceleration deaths are lies. Ted is wrong.

I have cited to my work. I didn't make up these numbers. These numbers were reported by the Los Angeles Times. I'll address these issues in further detail below, but if Ted had actually taken the time to read what I have written, he would have seen that I never suggested all of these deaths resulted from electronic malfunctions. I simply stated that Toyota sudden acceleration had been linked to more than 100 deaths, which is exactly what was reported by the Los Angeles Times.

Ted Frank still has not enabled comments to his post. (Why is that Ted? You've been able to comment here.) Let me continue addressing his concerns here:

(8) I have never said that all sudden acceleration events are caused by electronic malfunctions. Certainly, Toyota has already admitted that some unintended acceleration events are caused by (a) floor mat interference; and (b) the "sticky" pedal defect. What I have said is that these two defects and even driver error or pedal misapplication cannot account for all of the reported sudden acceleration problems. See number (3), above. Experts — not trial lawyers — from around the world have concluded that electronic interference is the most likely culprit. Many experts believe there are several problems – including electronic problems – combining to create the sudden acceleration defect.

(9) The bottom line is that people are dying when they shouldn't. Toyota could have prevented the fast majority of these deaths – whether from floor mats, sticky pedals, electronics or even driver error – by installing a simple, cheap brake override system that has been in use by other car companies for more than a decade. It would have costs less than $1 per vehicle. Toyota didn't do it.

(10) Ted Frank takes umbrage with the Los Angeles Times report of 102 deaths related to sudden acceleration. Frank neglects to inform his readers that I did not conjure or make up that number. It was calculated by an investigative report from the journalists at the Times. The number also does not take into account any of those events that went unreported to NHTSA or others. In reality, the number is likely far higher.

But what if Ted Frank is right and the number is much lower? How many lives are enough to matter? 10 dead? 50 dead? 100 dead? 1,000 dead? What if one of those lives were a member of your family? Would you not have a right to hold the person (or even the company) responsible?

(11) Perhaps we shouldn't hold any company accountable for its products?

Maybe we should still be driving Ford Pintos, Chevy side-saddle gas tank pick ups, Ford Explorers with Firestone tires that rollover even with professional drivers at the wheel. Maybe we should still be putting fuel tanks between the rear bumper and rear axle where they can get crushed in a rear end collision. Maybe we don't need seat belts. Even if we have seat belts, perhaps we don't need a shoulder belt, especially in the rear center seat where it costs a little bit more to install. You know we have all those great government bureaucrats (bought and paid for by the car companies) certifying the testing the companies send in. I think Ted has convinced me.

Hmmm… maybe not.

Each of the vehicles or components above were certified to comply with federal minimum safety requirements ("FMVSS") and still people died from these defects.

Each of these auto safety defects were corrected because of the work of trial lawyers holding these companies accountable. You are safer when you drive because of the hard work and dedication of trial lawyers . Click here to see just a few of the automotive safety improvements brought about by trial lawyers.

(12) Which brings me to this point: I am not a thief and I don't kill people. I refuse to give your assertion to the contrary any credence by dignifying it with a further response.

(13) As a tort reform advocate, why do you want to give away your civil liberties? Why would you knowingly give up your right to counsel and your right to a jury trial? Imagine it was your own family that was injured or killed by an obviously defective vehicle. Would you really say, "Oh, well, the car company surely didn't mean to kill my family"? If you instead chose to hold the company responsibile, would you be able to afford the $500,000 it requires to take a major car company to trial? If you couldn't, you would have to rely on a trial lawyer to help you.

Are there a few bad trial lawyers out there? Yes, just like every profession has its own bad apples. However, the vast majority of trial lawyers – particularly those bringing complex and expensive litigation like that against Toyota and other car makers – do not file frivolous, meritless or even questionable lawsuits. Trial lawyers pay for these suits out of their own pocket. If a trial lawyer spends $500,000 on a meritless lawsuit and loses, it is the trial lawyer who bears the loss.

(14) As a trial lawyer, I work hard for my clients. None of my clients ever asked for their fate. For most of them, their fate was completely out of their control. I am proud of my work helping real people whose lives have been ruined by tragedy. I am proud that I have helped the families of those who have been injured, paralyzed, maimed, burned or killed – not by any fault of their own – but by the fault of others. I am proud that I take the risk and responsibility for giving my clients back just a portion of the life they had stolen from them.

(15) Your resorting to name calling and personal insults betrays your true character and motivation. Your vile hatred for these outstanding people is offensive and wrong. Instead, you defend negligent corporations no matter what they do. In your mind, Toyota did nothing wrong, even though they have admitted at least two defects, recalled more than 10 million vehicles and paid a $16.4 million fine.

(16) I have not lied. I have not exaggerated. I have cited and linked to my sources for every single fact on which I have relied.

28 Comments

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  1. Ted says:
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    Thanks for admitting you lied. You said “hundreds.” You now acknowledge that the total is 102 — which includes the four people from the San Diego incident where the cause is known, and it’s not an electronic defect. Ninety-eight is not “hundreds” — and that’s before we get to the fact that there is no evidence that any of those ninety-eight deaths were the result of an electronic defect, but lots of evidence of pedal misapplication or other non-electronic issues.

  2. Ted says:
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    Perhaps the problem is not so much lying as reading comprehension. A report to NHTSA is an *accusation* that sudden acceleration is responsible for a death. It’s not admissible evidence, much less proof. I can file a NHTSA report that says Martians caused a car crash. It certainly doesn’t mean that Martians caused a car crash. The LA Times story doesn’t say anything differently.

    Returning to the English language, “hundreds” means “at least 200.” Returning to basic principles of math, 102 is less than 200. Your original post was a falsehood, and you still refuse to admit it.

  3. Brett Emison says:
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    Ted,

    Before lecturing someone on the English language, perhaps you should consult a dictionary.

    From Dictionary.com (found athttp://dictionary.reference.com/browse/hundreds):

    “Hundreds”:

    “4. hundreds, a number between 100 and 999, as in referring to an amount of money: Property loss was only in the hundreds of dollars.” — source: Dictionary.com Unabridged based on Random House Dictiontionary 2010.

    or

    “4. hundreds The numbers between 100 and 999: an attendance figure estimated in the hundreds.” Source: The American Heritage Dictionary of the English Language, Fourth Edition by Houghton Mifflin Company via Dictionary.com.

    I stand by my original posts.

  4. Brad says:
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    Ted,

    Do you really want to characterize Mr. Emison’s post as an attack against YOU? With your impressive resume, I would have assumed you’d have thicker skin than that.

    Regarding the debate at hand, at least Mr. Emison referenced the sources he has used to establish his position. Whether you agree with the sources or not, at least you know where the statistics come from. So far, you haven’t provided a single verifiable fact, only opinions, and dubious opinions at that. Did you actually mean it when you said there have been zero sudden acceleration deaths? What about the part about trial lawyers kill? And my favorite: your obsession with his use of the word hundreds. Arguing about semantics pretty much sums up the weakness of your argument.

    I understand that as a lawyer you can make any argument you choose and it’s up to the jury decide who is more convincing. As a “juror” in this debate, I have to say that Mr. Emison wins hands down.

  5. Ted says:
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    I’ve provided plenty of facts on the phony Toyota litigation at Overlawyered and at Point of Law. The fact that you think otherwise shows only that you as a juror have prejudged the case without examining the evidence. http://overlawyered.com/tag/toyota/

    Yes, there have been zero deaths from sudden acceleration from an electronic defect, because Toyota sudden acceleration is a phenomenon invented by trial lawyers hoping to steal from an innocent defendant, just as Audi sudden acceleration and GM sudden acceleration was. Again: read what I’ve written on the subject over the last several months. Read what Michael Fumento has written. Read what Walter Olson has written.

    And, yes, the trial-lawyer attack on Toyota means that more people are going to die in auto accidents because they will ignorantly switch from Toyotas to less safe vehicles, so, yes, the lies about Toyota that trial lawyers have told the public will kill people–and certainly more people than the non-existent problem of sudden acceleration has.

    Just another example of trial lawyers putting profits ahead of people.

  6. Brad says:
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    Of course it’s ME that prejudged the case, not that your “plenty of facts” are unconvincing – or that your delivery destroys your (and your case’s) credibility. Maybe I just prejudged you in this case because playing yourself as the victim of some imagined personal attack makes you look weak from the outset. Next time let’s try to play to your strengths, not expose your weakness.

    Two questions:

    1. As a defense attorney, you have no doubt used the “It meets FMVSS so it has to be safe” argument. Given that logic how can one car (that meets minimum safety standards) be so unsafe that if a consumer doesn’t buy the far superior Toyota they are sure to perish in a tragic accident? Shouldn’t the inferior vehicle be taken off the road? And further, shouldn’t the federal standards be changed to keep such dangerous vehicles out of the hands of these unsuspecting drivers?

    2. Mr. Emison has acknowledged that not all of the sudden accelerations are related to the electrical system, but that some likely are. You insist there is no other defect than the well documented floor mat problem. What say you about Mr. Haggerty (whom Mr. Emison referenced in this post) and the event he encountered at the Toyota dealership? Perhaps the Toyota employees had it out for their own company?

    You have done a very good job of regurgitating your favorite talking points, and I enjoy your bravado and showmanship (think “trial attorneys kill people” and “Toyota: The Innocent Defendant”. Unfortunately, in this case, the facts aren’t on your side.

  7. Ted says:
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    Perhaps you don’t think “Ted Frank lies” in a post titled in a way to appear high in search-engine results isn’t an attack–especially when there is nothing in the post that demonstrates that I’ve lied about anything.

    Nothing in my argument depends on FMVSS. You either wildly misunderstand the concept of statistics and probability or are deliberately misrepresenting my argument when you say “they are sure to perish in a tragic accident.” Either way, it’s not worth responding — especially when you continue to refuse to address the facts that I’ve repeatedly written about that show that the data in the trial-lawyer-generated NHTSA fatal accident reports demonstrates beyond a shadow of a doubt that this is not an electronics issue.

    It sadly doesn’t surprise me that “Brad” falsely represented himself as a neutral “juror” when in fact he was an interested trial lawyer with experience in automobile cases.

  8. Brett Emison says:
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    Dear Ted,

    If we must engage in detailed analysis of grammar as you seem wont to do, you’ll note that I never said “Ted Frank lies.” Indeed, this post, to which you now refer was not the post to which you referred when you said I “attacked” you. Rather, the original “attacking” post was simply a round up of Toyota news in which I said:

    “So, to paraphrase Ted Frank at overlawyered, will Toyota apologists who have been blindly defending Toyota in the face of corporate malfeasance second only to BP apologize the families of the hundreds of people killed by Toyota sudden acceleration? As he said… Don’t count on it.”

    It was then that you wrote your own post entitled “Plaintiffs’ lawyer lies about Toyota.” In that post you said: “Nevertheless, we have a Missouri plaintiffs lawyer attacking me….”

    However, as demonstrated above, I never attacked you.

    It was only after your baseless post in which you accused me of (a) lying, (b) stealing and (c) killing people for money, that I offered the statement: “Ted Frank lied about me in a blog post….”

    As for the “in a post titled in a way to appear high in search-engine results…”, what? You give yourself far too much credit, Ted. I had never heard of you before last Thursday. I titled the post in a way that no one other than you (should you Google your own name) would ever find the post. I didn’t put “Toyota” in the headline. I didn’t put “recall” in the headline. I didn’t put “sudden acceleration” in the headline. I only mentioned you.

    You refused to enable me (or anyone else) to comment directly on your web site. Thus, I was forced to reply in a post of my own.

    With respect to your argument regarding statistics, I agree it is not worth responding. You have offered no support other than your own mystical assumptions. Indeed, you have attempted to discredit the entire FARS database system as completely attorney generated. So, then, entities like the IIHS, car makers, AAA, Consumer Reports and even Toyota’s own hired gun, Exponent, don’t rely on the FARS database system because it has been overrun by attorneys? I guess I’m late to the party.

    Finally, on what basis do you claim Brad falsely represented himself? Do you know Brad? Are you running background checks on Brad? From which law school did Brad graduate? In what auto cases does Brad have experience? Which case(s) did Brad file? Which has he tried? Has Brad received any verdicts?

  9. Brad says:
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    I wish I was a trial lawyer, I’d no doubt make more money than I do as a furloughed major airline pilot… I was admitted with scholarships to a number of law schools for this fall (none as prestigious as Chicago), but have decided to explore another avenue. So I appreciate your assumption that I’m a lawyer (I think), but unfortunately, you’re wrong again.

    Ted: “And, yes, the trial-lawyer attack on Toyota means that more people are going to die in auto accidents because they will ignorantly switch from Toyotas to less safe vehicles, so, yes, the lies about Toyota that trial lawyers have told the public will kill people…”

    If I’m reading this correctly, you say that more people are going to die in auto accidents because they will switch from Toyotas to less safe vehicles (I’m still not sure how these other vehicles pass FMVSS, but I guess they do). If these other vehicles are so unsafe that there will be an increasing number of deaths why isn’t Toyota the safety standard against which all other vehicles are measured? Are not companies obligated to make the safest vehicle possible (if not legally, at least morally)? When you’re a defense attorney, I guess you have to believe no…

    As for the rest of your statement, I’ve read your “facts” more than once and they don’t, to me, prove anything beyond a shadow of a doubt. Until Toyota can identify the exact cause of these accidents (besides the too-convenient driver error) anything and everything is in question and must be investigated.

  10. Ted says:
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    Mr. Emison, as your own quote shows, you falsely accused me of “blindly defending Toyota.” That’s an attack. My defense of Toyota rests on the evidence (evidence you *still* haven’t addressed) as well as years of experience watching trial lawyers lie about sudden acceleration to the public and to juries.

    “Are not companies obligated to make the safest vehicle possible?”

    The safest vehicle possible is a Sherman tank with a restrictor plate preventing it from exceeding 1 mph, so the answer to your question is “no” — though certainly trial lawyers have an interest in asking you to think manufacturers are doing something wrong when they don’t.

    “Until Toyota can identify the exact cause of these accidents (besides the too-convenient driver error) anything and everything is in question and must be investigated.”

    I look forward to you writing NHTSA and demanding they investigate if invisible vampires are causing elderly drivers to hit the wrong pedal. After all, anything and everything is in question, and you reject Occam’s Razor when it comes to an alleged electronic defect that simultaneously causes three separate systems to malfunction six times more often for elderly drivers than non-elderly drivers, so why not demand an investigation of the equally unlikely invisible-vampire problem as long as you’re rejecting science?

  11. Brett Emison says:
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    Ted,

    My quote was an observation, not an attack. However, you are free to take the quote however you would like — that is your right.

    Nevertheless, I fail to understand the level of your contempt and anger. Your failure to address substantives points of argument and reliance on baseless personal attacks (for example, claiming that I steal and kill people for money, presuming Brad is a trial lawyer when he is a pilot, and conspiracy theories about lawyers manipulating FARS data, etc.) undermine whatever limited appeal your arguments may otherwise have had.

    It is clear we have a substantial disagreement. Perhaps we must leave it at that.

  12. Brad says:
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    Ted,

    Nice job on dodging the question. Allow me to rephrase: If one vehicle is safer than another, is there not a moral obligation to make the less safe vehicle as safe as the more safe vehicle?

    What is the legal term for this? Comparatively safe? Relatively safe? Reasonably safe? Forgive my ignorance of legal terminology, but I suspect you knew the point I was trying to make. Once again you resort to arguing semantics. I see a trend developing. I guess if you can’t argue facts, argue words to muddy up the water…

  13. Ted says:
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    “If one vehicle is safer than another, is there not a moral obligation to make the less safe vehicle as safe as the more safe vehicle?”

    I’ve answered the question. A Sherman tank with a restrictor plate is safer than all other vehicles, and there is no legal or moral obligation to recall all the vehicles on the road and require everyone to drive a Sherman tank with a restrictor plate. Vehicles need only be reasonably safe, and then let the market decide how much additional safety (or luxury or gas mileage or technological gadgetry) consumers want to pay for. Consumers make safety tradeoffs all the time (do I drive or fly to New Jersey this weekend? do I increase my expected lifespan by spending an additional hour at the gym? do I take this cell-phone call while I’m driving?), and no one sane thinks it’s a question of morals whenever someone doesn’t choose–or cannot afford–the absolutely safest option.

    The problem here is that people are being misled about product safety, and lies about Toyota are causing confusion that lead consumers that would otherwise choose Toyotas to choose less safe vehicles out of misinformed safety fears. That makes consumers worse off both subjectively (because scare-mongering has distorted their choices) and objectively (because some small fraction of those consumers are going to die in car accidents that wouldn’t have died if they hadn’t been misled by trial lawyers).

    Brett: Instead of addressing my actual argument, you keep pretending (dare I say, lying) that I’ve never made one. One can appropriately draw the negative inference for why you continue to falsely claim that I’ve never made a substantive argument why it’s essentially statistically impossible for there to be an electronic problem with Toyota vehicles. Rather than explain why Occam’s Razor doesn’t apply here, you falsely accuse me of making conspiracy theories that I’ve never made and weasel out and say “we have a substantial disagreement.” Yes: I believe in making honest arguments, and you apparently don’t.

  14. Brett Emison says:
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    Come now, Ted.

    I offered to end our discussion by simply agreeing to disagree. Instead, you have again called me a liar.

    I have addressed each of your arguments in detail above. I have dismissed your “statistical analysis” because you have yet to provide one. (Your link provided above is nothing more than a link to articles tagged “Toyota” at overlawyered and includes links to several posts that you did not write. If you have a link to an actual statistical analysis, you should provide it.) Forgive me if I decline to simply take your word for it.

    You claim it is statistically impossible for sudden acceleration to have been caused by an electrical malfunction. Where is your data?

    You dismiss every single “complaint” reported to NHTSA as the work of fear mongering trial lawyers. You dismiss the entire FARS data system as subject to the manipulation of trial lawyers. (By the way, in your comments above, how can you claim both that (1) trial lawyers manipulate the FARS data and (2) the manipulated FARS data shows no electronic cause of sudden acceleration? Wouldn’t the trial lawyers have ensured that the FARS data did provide such a link?) You expect your readers to believe that Toyota recalled more than 10 million vehicles, halted production on millions more and paid a $16.4 million fine because of driver error alone.

    If you cannot rely on NHTSA complaints and you cannot rely on FARS data, then on what facts do you rely? If you do rely on some statistical analysis, let us see it. You have failed to provide any link to such data or analysis.

    I have addressed every substantive point you have made. I have addressed your arguments in detail, with citation and with links to my sources. You just keep calling me a liar and hope it sticks.

    Since you brought it up, let’s talk about addressing arguments. I tally the following unanswered questions from the posts and comments above:

    (1) Toyota has planted “inaccurate and misleading” reports in the press before regarding sudden acceleration. (http://kansascity.injuryboard.com/automobile-accidents/inaccurate-and-misleading-statements-on-toyota-sudden-acceleration-problem.aspx?googleid=274000) Why is Toyota’s most recent planted story any different?

    (2) Toyota has admitted – even bragged – about putting profits and money ahead of safety and profiting from delays (or complete) avoidance of safety recalls (including sudden acceleration). People died because of Toyota’s delays. Toyota considered it a “win”. (http://kansascity.injuryboard.com/automobile-accidents/toyota-recall-company-bragged-about-saving-100-million-in-delaying-recall.aspx?googleid=278422) Is this conduct acceptable to you?

    (3) Toyota lies. A lot. Especially about unintended sudden acceleration.(http://kansascity.injuryboard.com/automobile-accidents/toyota-recall-lies-lies-and-more-lies.aspx?googleid=278496) Is that acceptable?

    (4) What about people like Kevin Haggerty (http://kansascity.injuryboard.com/automobile-accidents/did-toyota-leak-premature-test-findings-in-pr-stunt.aspx?googleid=283044) (http://abcnews.go.com/Blotter/toyota-driver-abc-news-videos-helped-save-life/story?id=9618954) (http://www.safetyresearch.net/2010/07/14/no-black-box-exoneration-for-toyota/) Haggerty drove his Toyota onto a dealer’s lot while it was still experiencing unintended acceleration. He got out of the vehicle and it was examined by Toyota technicians with the engine still racing.

    Haggerty’s floor mats did not cause the problem. A sticky pedal did not cause Haggerty’s problem. Pedal misapplication did not cause Haggerty’s problem (since the engine was still revving after Haggerty exited the vehicle). What then caused the unintended acceleration in Haggerty’s vehicle? If it happened to Haggerty, couldn’t it also happen to others?

    Occam’s Razor: (https://secure.wikimedia.org/wikipedia/en/wiki/Occam%27s_razor)

    Haggerty’s example demonstrates the fallacy of your reliance on Occam’s Razor. The simplest answer is not always the correct one. To quote Sr. Arthur Conan Doyle speaking through the great Sherlock Holmes: “Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”

    (5) How many people need to die before it makes a difference and Toyota should do something?

    (6) Why do you continue to respond by calling names and hurling insults rather than engaging in substantive debate? It does little good to continue calling me a liar or a thief or a killer. Such outlandish personal attacks may make you feel better, but belittle only your argument and your character, not mine. “Sticks and stones…” as they say.

  15. Brad says:
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    “I believe in making honest arguments, and you apparently don’t.”

    Really?! You have presented plenty of opinions and conjecture but I have yet to see a single quantifiable fact. For example, can you prove, in some measurable way, that:

    1. A Sherman tank with a restrictor plate is THE safest vehicle in the world? (How do you know it’s not in fact the Abrams tank with an electronic governor that’s safer? You haven’t linked to that crash test data.)
    2. People are being misled about product safety? (Unless they’re not… You haven’t provided any data proving Toyota’s are safer than is being reported. They don’t seem to be so safe for elderly people and immigrants as you point out.)
    3. “Lies” about Toyota are causing confusion that lead consumers that would otherwise choose Toyotas to choose less safe vehicles out of “misinformed” safety fears. (Perhaps, if this phenomenon exists at all, it is making people choose MORE SAFE vehicles. What poll numbers do you have to show what would-be Toyota buyers purchase instead? How does that (or those) specific vehicle statistically rank compared to the comparable Toyota?)
    4. “X” number of people will die because of this decision to drive other vehicles. (You don’t even know how many (if any) people are choosing not to drive Toyotas!)

    You have done a fine job of expressing your opinion, and if you had ANY evidence to support these opinions, they would likely be somewhat more convincing. It seems that you are of the opinion that whoever makes their case most boisterously is right. I disagree.

  16. Mike says:
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    tort reform activists have one thing in common, a belief that some people can be sacrificed for the greater corporate good. Dont piss off corporations or they will move to China, or the consummer pays the price for a frivolous lawsuit. What a bunch of crap. Why dont you tort reformers think about what it might feel like to be the guy standing in the emergency room with the blood soaked shirt waiting for word to see if his wife and daughter died in a Toyota? I am all for business making money. I am not for business making money at any cost. People who are into tort reform have a warped sense of justice. Shame on them all.

  17. John Rohan says:
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    RE: Mike’s comment:

    When their livelihood is threatened (huge jackpot lawsuit payouts and settlements), attorneys get pretty defensive.

    No vehicle is going to be 100% safe. Sorry, but it just won’t happen.

    As long as Toyotas are among the safest on the market, the case falls flat. “Sudden acceleration” (ie mistaking the gas for the brake) is a nebulous concept that really hasn’t been proven on any vehicle. Good luck with this one.

    And Brett, isn’t it just a bit irresponsible to call Toyota’s actions “corporate malfeasance second only to BP”? Are you going to compare Toyota to Nazis next?

  18. Car Shopper says:
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    We have 3 people arguing about whether or not Toyota is safe. So I’m wondering what kinds of cars are they driving. Me, I drive a Toyota 4Runner with 200k+ miles on it. Served me well for over 15 years. And still going strong. So how about, what car(s) do you and your families use, Brett, Brad, and Ted? And why do you think those cars are safe compared to everything else?

  19. Brett Emison says:
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    Thank you for the recent, thoughtful comments.

    Ted made another blog post about our discussion and posted without context one of his comment replies to Brad that is found above. You can read Ted’s post at: (http://overlawyered.com/2010/07/bad-mouthing-toyota-and-its-defenders/)

    I attempted to comment on Ted’s post earlier this morning, but was informed my post was “awaiting moderation” and has yet to appear.

    My comment on Ted’s site read as follows:

    In the quoted language above, Mr. Frank is replying to the comments of a non-laywer commenter. An attorney – and even this specific commenter in a later post – would (and did) acknowledge or read into the statements above an element of “reasonableness”. Thus, I think we could all agree that companies should make vehicles that are “reasonably safe”, even if we do not always agree as to what is “reasonable.” The same goes for potential sources of the sudden acceleration defect.

    I understand that most people reading this post and these comments do not believe there is an electrical or electronic cause of sudden acceleration. But so long as it remains a “reasonable” possibility – or even a possibility upon which experts in the field disagree – shouldn’t Toyota and government regulators continue to investigate the possibility if doing so might save lives?

    Whatever disagreements we might have about policy, surely we can agree that saving lives is worth asking the question rather than prejuding the outcome. I have never said that all sudden acceleration is caused by electrical malfunctions. In fact, Toyota has admitted two sources of sudden acceleration already (floor mat interference and “sticky” pedals). It is most likely that sudden acceleration is caused by a number of different sources (including, in some instances, driver error).

    Nevertheless, there are documented instances in which no acknowledged source of sudden acceleration (floor mats, sticky pedals or operator error) was the cause of the unintended acceleration. See the Kevin Haggerty example in the comment thread linked above. To quote Sherlock Holmes, “Once you eliminate the impossible (here the acknowledged sources of sudden acceleration), whatever remains, no matter how improbable, must be the truth.”

    I do not intend to engage in another protacted debate. My thoughts are well represented here (http://kansascity.injuryboard.com/automobile-accidents/dear-ted-frank.aspx?googleid=283082). As I said yesterday, it is clear we have a substantial disagreement. Perhaps we must leave it at that.

  20. Brett Emison says:
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    Mike, John and “Car Shopper” — thank you for reading and taking the time to comment.

    Mike – while I appreciate your comments, I must take exception to a few points.

    (1) In my experience, there is no such thing as “jackpot lawsuit payouts and settlements”. Each of my clients have been seriously and permanently injured, usually through no fault of their own. If a client is at fault, evidence of their fault is presented to the jury and the jury may assess a portion of the fault (or all of the fault if that is what the jury believes) to my client and the court will reduce the amount of the verdict accordingly. Trials are based on evidence and proof and are decided my 12 independent jurors. This a constitutional safeguard established by the founders and protected in the Bill of Rights as the 7th Amendment.

    Similarly, there is no such thing as a “jackpot settlement”. Settlements are contractual agreements entered into voluntarily between a plaintiff and a defendant and, in some cases approved by the court. A settlement only occurs if both the plaintiff and the defendant reach an agreement as to the fair value of the case.

    (2) I disagree that my comments reflect that I am “pretty defensive.” This discussion originated out of a claim that Toyota had been exonerated of any fault related to electronic sources of sudden acceleration. I simply pointed out that the report was not true, that the investigation was ongoing, and that the false story had been planted by Toyota. In response to Ted’s accusations, I then documented above the additional attempts at distorting the record in which Toyota has engaged in recent months.

    It appears you have attempted to set up a Catch-22 situation: If I don’t respond to Ted, I am weak and concede my argument, but if I defend my position I am “pretty defensive”.

    (3) I keep hearing that Toyota is the “safest car on the market” – where does that come from? I have yet to see a source. Perhaps Toyota may have been perceived as safe prior to the sudden acceleration problem coming to light. However, since last October, Toyota has recalled more than 10 million vehicles worldwide, stopped production on millions more, acknowledged several serious safety defects and paid (without appealing) a $16.4 million fine for unreasonably delaying its sudden acceleration recalls. This is not the “safest on the market” in my book.

    (3) Please do not attempt to lower the level of discourse by inserting references to “Nazis”. No one here — especially me — has suggested anything like that.

    (4) Yes, I believe Toyota’s conduct is as bad (if not worse) than BP’s. As I documented above, Toyota purposefully delayed safety recalls – including recalls for sudden acceleration. People died because of the delays and Toyota saved $100 million. Toyota considered this a “win.” I don’t think it is irresponsible to condemn such conduct.

    Car Shopper – Volvo is generally perceived to have the safest vehicles on the road… particularly relative to roof strength, although there may be particular exceptions or problems of which I am not aware. I don’t claim to know the “safest car on the market”.

    To all — thanks again for reading and let me say this:

    I did not intend to engage in such a protracted and contentious debate. It seems we have gotten far afield from the original topic of a simple round up of Toyota news (with references to lying, stealing, killing, tanks, space aliens, invisible vampires and Nazis).

    It seems we have failed in our duty to “disagree without being disagreeable” and it appears our substantial disagreement and diverging points of view will not be resolved in this forum.

    Significant debate has its place, but it appears to have played itself out here. Let our arguments and evidence stand for themselves and, for now, agree to disagree.

    Thanks again for reading. I hope my writing, as well as the the topics and writing from others on the forum, will bring you back from time to time in order to offer more constructive debate.

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    Wow, this Ted Frank guy is a loon. I mean, really? Did all these sudden-acceleration headlines come out of thin air? Was Brett Emison tinkering under people’s hoods in the night, plotting his next big lawsuit?

    “Lawyers kill people.” This guy has drunk the corporate kool-aid in a big way!

  22. Ted says:
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    “Did all these sudden-acceleration headlines come out of thin air?”

    Where did all the false Audi sudden-acceleration headlines come from? From the same trial lawyers who are lying about Toyota.

    There is a great deal of empirical evidence that tort reform saves lives. To take a famous example, John Edwards’s junk-science lawsuits against obstetricians over cerebral palsy cases drove a number of OB-GYNs out of practice and raised infant mortality rates. But he got to buy a big house with the money he won. Just another case of trial lawyers putting profits ahead of people.

  23. DensityDuck says:
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    @William:
    “Did all these sudden-acceleration headlines come out of thin air?”

    Yes. Remember all those headlines back in 2001 about how sharks were eating everyone in sight? Except it turns out that there were actually FEWER shark attacks in 2001 than in previous years, and 2002 had even less than that. So, in fact, shark attacks were DECLINING. But that didn’t stop people from saying it was 1916 all over again.

  24. EarlWer says:
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    Brad, “For example, can you prove, in some measurable way, that:
    1. A Sherman tank with a restrictor plate is THE safest vehicle in the world?”

    Common sense. An armored tank against almost any other road vehicle is going to be safer.

    “Are not companies obligated to make the safest vehicle possible”

    No. Such a vehicle would be impossibly expensive.

    They try to make a vehicle with the best value to consumers. One of the values is safety. Others are price, comfort, capacity, speed and looks. Some of these are mutually exclusive.

    If a consumer buys a van with a high center of gravity because they need to transport multiple people, they have made a choice between more capacity and reduced safety.

  25. Brad says:
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    EarlWer,

    “Common sense. An armored tank against almost any other road vehicle is going to be safer.”

    This is why I proposed another armored tank (the Abrams) for an apples/apples comparison. The point I was making is that no single “fact” that Ted presented was based on any verifiable statistical data – only his own hyperbole and somewhat dubious opinions.

    “Are not companies obligated to make the safest vehicle possible” No. Such a vehicle would be impossibly expensive.

    Again, what’s with you people and arguing semantics. I think you know the point I was trying to make on this as well. If you look at the context, Ted said:

    “Lies about Toyota are causing confusion that lead consumers that would otherwise choose Toyotas to choose less safe vehicles out of misinformed safety fears.”

    Do you think a Toyota Camry driver would be so scared by trial lawyers that instead of choosing another Sedan, they would buy a van? Common sense says they’re going to buy a competitor of the same category and class.

    If another vehicle in the same category and class is significantly enough less safe that more people are going to die, should not the less safe vehicle be made more safe?

    I understand that there is a difference in safety (risk) between flying an F-16 and a Boeing 757 based on handling characteristics, types of operations, performance, etc. I also understand there is a difference in safety between a 15-passenger van and a Volvo sedan for the same reasons. Surely we can agree, though, that if one sedan is significantly safer than another sedan, the less safe sedan should incorporate some of the known safety features of the safer sedan.

    According to Mr. Emison’s posts, one of the safety features that would have prevented many, if not all of the Toyota SUA events, the Smart Brake, costs approximately $1 per vehicle and has been used on other vehicles for more than a decade.

    Tell me Mr. EarlWer, do you think that $1 is too much to spend to potentially prevent these types of accidents?

  26. Brett Emison says:
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    EarlWer,

    Thanks for reading and taking the time to comment.

    As part of your comment, you wrote:

    “If a consumer buys a van with a high center of gravity because they need to transport multiple people, they have made a choice between more capacity and reduced safety.”

    Your comment suggests that safety is one of the options that drivers intentionally or consciously “value” in choosing a vehicle. Indeed, that sometimes may be true. But what if the driver is not sufficiently educated or informed — or even misled — about the safety of a particular vehicle?

    In the Toyota acceleration context (for this example, let’s eliminate the possibility of electronic or other sources and focus only on acknowledged sources), Toyota denied there was any acceleration problem for years before finally acknowledging both the floor mat entrapment problem and the “sticky” pedal defect. When Toyota finally acknowledged the problems, it recalled more than 10 million vehicles worldwide and halted production on millions more. In this case, Toyota’s denial of this safety problem prevented at least 10 million customers from making an informed decision about the safety of the vehicle they purchased.

    In your example, you presume that the purchaser will know and understand that a large van with a higher center of gravity may be more dangerous than other vehicles. You may understand that. An auto engineer should understand that. However, there is a significant portion of the driving public that does not understand the principles of physics involved in your example and, thus, are unable to make an educated and informed safety “valuation”.

    Now, you might argue either that your example amounts to nothing more complex than common sense or that it is up to the buyer to educate himself or herself. For some examples, that may be true: seat belts versus no seat belts. Airbag versus no airbag. Recall versus no recall.

    But suppose the safety “choice” isn’t so easy to understand? For example, roof strength of 1.5 times the weight of the vehicle versus 3 times the weight of the vehicle? Attachment of the seat belt shoulder harness to the B-pillar versus attachment to the seat back itself? An auto seat with retracting gears on one side of the seat versus retracting gears on both sides of the seat? A check valve in the fuel filler pipe versus no check valve?

    Each of these choices offer a demonstrably safer alternative over the less safe option. The safer alternative costs – in most cases – only a small amount more than the less safe alternative (sometimes only pennies). How is an ordinary consumer to appropriately “value” these safety decisions?

    Car companies perform such valuations all of the time. Sometimes they get them wrong.

    One of the most famous (or infamous) is a GM value analysis known as the Ed Ivey memo or Ed Ivey analysis. (http://www.cnn.com/US/9909/10/ivey.memo/) The Ivy memo involved fuel system integrity. Ivey assigned a value of $200,000 wrongful death settlement (based on government data at the time) and concluded that GM could spend up to $2.40 to improve the crashworthiness of fuel systems (not just the tank, but the entire fuel system). Ivey concluded that GM could only invest $2.40 per vehicle to improve post-crash fire survivability. After $2.40, it was cheaper for GM to allow people to burn to death in a fire and pay the wrongful death settlement than to make the fuel system safer.

    Those victims didn’t get a chance to assign the value. GM made that decision for them and GM got it wrong. It’s worth more than $2.40 to make sure somebody doesn’t burn alive after a crash.