Federal Register, Volume 65 Issue 83 (Friday, April 28, 2000)

[Federal Register Volume 65, Number 83 (Friday, April 28, 2000)]
[Notices]
[Pages 25026-25037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10624]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Denial of Motor Vehicle Defect Petition, DP99-004

AGENCY: National Highway Traffic Safety Administration (NHTSA); DOT.

ACTION: Denial of petition for a defect investigation.

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SUMMARY: This notice describes the reasons for denying a petition
(DP99-004) submitted to NHTSA under 49 U.S.C. 30162, requesting that
the agency ``institute a new investigation into the cause or causes of
sudden acceleration.''

FOR FURTHER INFORMATION CONTACT: Bob Young, Office of Defects
Investigation (ODI), NHTSA, 400 Seventh Street, SW, Washington, DC
20590. Telephone: 202-366-4806.

SUPPLEMENTARY INFORMATION: On July 19, 1999, attorney Sandy S. McMath,
711 West Third Street; Little Rock, AK 72201; petitioned the NHTSA
requesting that it ``reopen its investigation into the phenomenon known
as ``sudden acceleration.'''
The petitioner contends the agency's comprehensive study to
identify and evaluate factors which could potentially cause or
contribute to the occurrence of Sudden Acceleration Incidents (SAI),
conducted from October, 1987 through December, 1988, should be reopened
because:
(1) To date, NHTSA has neglected to consider the mechanisms that
can cause sudden acceleration by bypassing the control logic of the
cruise control system and thus can induce sudden acceleration in a
stationary vehicle;
(2) NHTSA has apparently failed to consider the data collected by
Ford Motor Company in its investigation of 2,800 incidents of sudden
acceleration during 1989-1992; and
(3) NHTSA has not addressed the fact that there is no true failsafe
mechanism to overcome sudden acceleration.
NHTSA has reviewed the petitioner's information as it relates to
the referenced study. The results of this review and our analysis of
the petition's merit is set forth in the DP99-004 Petition Analysis
Report, published in its entirety as an appendix to this notice.
For the reasons presented in the petition analysis report, there is
no reasonable possibility that an order concerning the notification and
remedy of a safety-related defect would be issued as a result of
reopening the study. Therefore, in view of the need to allocate and
prioritize NHTSA's limited resources to best accomplish the agency's
safety mission, the petition is denied.

Authority: 49 U.S.C. 30162(d); delegations of authority at CFR
1.50 and 501.8.

Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.

Appendix

Petition ANALYSIS--DP99-004

1.0 Introduction

On July 19, 1999 Mr. Sandy S. McMath (petitioner) petitioned the
National Highway Traffic Safety Administration (NHTSA) requesting
that it ``reopen its investigation [i.e., Study] into the phenomenon
known as `sudden acceleration [SA].''' Mr. McMath is a Little Rock,
Arkansas lawyer representing the parents of two boys injured (one
fatally) in an alleged sudden acceleration incident (SAI) occurring
in Mountain Home, Arkansas on June 7, 1995. This incident is
currently the subject of civil litigation. \1\
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\1\ Chapman v. Fett et al., Civ-97-144, C.C. of Baxter County,
Arkansas. No trial date has been set yet.
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The petitioner contends the agency's comprehensive study,
conducted to identify and evaluate factors which could potentially
cause or contribute to the occurrence of SAI's, should be reopened
because:

[[Page 25027]]

(1) To date, NHTSA has neglected to consider the mechanisms that
can cause sudden acceleration by bypassing the control logic of the
cruise control system and thus can induce sudden acceleration in a
stationary vehicle;
(2) NHTSA has apparently failed to consider the data collected
by Ford Motor Company in its investigation of 2,800 incidents of
sudden acceleration during 1989-1992; and
(3) NHTSA has not addressed the fact that there is no true
failsafe mechanism to overcome sudden acceleration.
In analyzing the petitioner's allegations and preparing a
response, we:
Reviewed the petitioner's July 19, 1999 petition.
Reviewed the two sets of exhibits, provided as an
attachment to the petition. \2\
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\2\ The second set of exhibits were provided by the petitioner,
who characterized them as ``corrected.''
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Reviewed the Study's findings and discussed its
methodology with the Transportation Systems Center (TSC) and Vehicle
Research and Test Center (VRTC) personnel involved.
Reviewed our consumer complaint database for sudden
acceleration reports received through December 1, 1999.
Reviewed vehicle manufacturer information provided to
us during various sudden acceleration investigations.
Reviewed various ODI safety defect investigations
related to sudden acceleration.
Gathered information related to electrical current,
circuits, transistors, switches, and solenoids.
Inspected various Ford vehicles to understand cruise
control operation and the location and function of certain brake
pedal-related cruise control dump valves and switches.
Reviewed the transcript, video tape and other material
related to a February 10, 1999 ``Dateline NBC'' broadcast concerning
alleged cruise control failures as a cause of sudden acceleration
incidents.
Reviewed various transcripts and orders from the
Manigault \3\ and Jarvis \4\ civil litigation cases.
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\3\ Manigault v. Ford Motor Co., Case No. 286862, Court of
Common Pleas, Cuyahoga County, Ohio.
\4\ Jarvis v. Ford Motor Co., 92 Civ. 2900 (NRB), U.S. D.C.,
S.D. N.Y.
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Reviewed a U.S. Supreme Court case concerning the
admissibility of certain scientific evidence.\5\
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\5\ Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
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Analyzed the ``data collected by Ford Motor Company in
its investigation of 2,800 incidents of sudden acceleration during
1989-1992.''
Obtained vehicle production quantity information from
Ford.
Reviewed various Ford vehicle service manuals.
Viewed a video tape, prepared by the plaintiffs in
Manigault, allegedly demonstrating vehicle acceleration due to an
induced cruise control malfunction.
Reviewed a NHTSA paper concerning transmission shift-
lock effectiveness at reducing occurrences of sudden
acceleration.\6\
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\6\ U.S. Department of Transportation. National Highway Traffic
Safety Administration, Office of Defects Investigation. ``The Effect
of Countermeasures to Reduce the Incidence of Unintended
Acceleration Accidents' by Wolfgang Reinhart. Paper (No. 94 S5 O 07)
delivered to the Fourteenth International Technical Conference on
Enhanced Safety of Vehicles, Munich, Germany, May 23-26, 1994. This
conference was sponsored by the U.S. Department of Transportation.
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Reviewed an essay concerning the role of human factors
in sudden acceleration incidents.\7\
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\7\ Schmidt, Richard A. ``Unintended Acceleration: A Review of
Human Factors Contributions,'' Human Factors Society, Inc., 1989,
31(3), 345-364.
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Obtained, from Ford, vehicle specifications for a 1984
Mercury Grand Marquis, VIN 1MEBP95F6EZ612727. This vehicle was
tested by VRTC on October 14, 1988 as part of the Study.
Disassembled a Mechanical Vacuum Dump Valve (MVDV),
Ford part number E9AZ-9C727-B, to learn more about its operation.
This valve is sold by Ford as a service part for 1982-2000 Ford
Crown Victoria, Mercury Grand Marquis, and Lincoln Town Car
vehicles.
In an effort to learn more about the petitioner's
theory, ODI also gathered information concerning an alleged SAI
occurring in Mountain Home, Arkansas on June 7, 1995 (the subject
crash), generally, and the involved 1988 Lincoln Town Car (the
subject vehicle), specifically. During this effort, ODI did the
following:
Obtained a copy of the Mountain Home, AK Police
incident report concerning the subject crash and interviewed its
author, Sergeant Jeff Lewis.
Obtained a copy of the ``Dateline NBC'' (``Dateline'')
video tape provided by Mr. McMath to Sergeant Lewis.
Obtained, from Ford, subject vehicle (VIN
1LNBM81F9JY844065) specifications.
Reviewed the subject vehicle's warranty service
history.
Reviewed the subject vehicle's title history.
Interviewed the salesman who sold the subject vehicle
to the involved owner/driver.\8\
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\8\ The subject vehicle was owned by William and Marlene Fett.
Mrs. Fett was the involved driver.
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Obtained the subject vehicle's odometer statement
verifying its mileage when sold to the Fetts.
Interviewed the Ford dealership service manager and
mechanic who inspected the subject vehicle the day after the alleged
SAI.
Obtained, from the National Oceanographic and
Atmospheric Administration (NOAA), the Mountain Home weather
observation report for June 7, 1995.
Reviewed the docket, complaints, and various deposition
transcripts from the Chapman civil litigation.
Interviewed other owners of the subject vehicle.
Interviewed mechanics who worked on the subject
vehicle.
Examined a cruise control electrical dump switch (EDS,
p/n E9AZ-13480-A) for a 1988 Lincoln Town Car.
Traveled to Mountain Home, Arkansas on December 2, 1999
and did the following:

--Obtained copies of the police photos.
--Inspected the crash site with Mountain Home Police Sergeant Nevin
Barnes, the subject crash reconstructionist.
--Discussed the crash with a witness at the crash site.
--While at the crash site, measured the total distance traveled by
the subject vehicle during the alleged SAI.
--Obtained copies of related news media reports.
--Met with the current owner of the subject vehicle.
--Inspected the subject vehicle.
--Test drove the subject vehicle.

The information gathered during this comprehensive effort does
not support the petitioner's allegations. Consequently, his petition
that ``NHTSA reopen its investigation into the phenomenon known as
``sudden acceleration''' is denied.
This petition denial will (1) discuss sudden acceleration and
the Study, generally; (2) provide a general description of
electrical circuit and cruise control operation, (3) assess each of
the petitioner's three allegations, and (4) evaluate the alleged
sudden acceleration incident occurring in Mountain Home, Arkansas on
June 7, 1995.

2.0 The Issue of Sudden Acceleration

2.1 ``Sudden Acceleration (SA)''

The term ``sudden acceleration (SA)'' has been used (and
misused) to describe vehicle events involving any unintended speed
increase. However, the term properly refers to an ``unintended,
unexpected, high-power accelerations from a stationary position
[emphasis added] or a very low initial speed accompanied by an
apparent loss of braking effectiveness.'' \9\ The definition
includes ``braking effectiveness'' because operators experiencing a
SAI typically allege they were pressing on the brake pedal and the
vehicle would not stop. ``Sudden acceleration'' does not describe
unintended events which begin after vehicles have reached intended
roadway speeds.
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\9\ John Pollard and E. Donald Sussman, An Examination of Sudden
Acceleration (Cambridge, MA.: NHTSA, 1989, DOT-HS-807-367), v.
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2.2 The NHTSA Study

On March 7, 1989, NHTSA released a Report, authored by John
Pollard and E. Donald Sussman, titled ``An Examination of Sudden
Acceleration,'' documenting the agency's efforts (the ``Study'') to
determine what was causing a relatively large number of crashes in
certain model vehicles due to apparent unintended (and substantial)
engine power increase and simultaneous loss of braking
effectiveness. Typically, these events began while the vehicle was
stationary, shortly after the driver had first entered it. They
frequently ended in a crash. While the phenomenon affected all
automatic transmission-equipped cars sold in the U.S., some had
notably higher occurrence rates, with the Audi 5000 eclipsing them
all.\10\ The issue of ``runaway''Audi 5000's had been the

[[Page 25028]]

subject of NHTSA defect investigations and safety recalls, class
action lawsuits, considerable media coverage,\11\ and public
controversy. Internationally, the phenomenon was investigated by
other governments during roughly the same time period.\12\
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\10\ The sudden acceleration report rate for 1978 through 1987
Audi 5000's was 586/100,000.
\11\ Both print and electronic media reported on the phenomenon.
Perhaps the most notable media event occurred on November 23, 1986
when CBS News' ``60 Minutes'' broadcast a segment entitled ``Out of
Control,'' focusing on SA and the Audi 5000. The piece included a
demonstration of an Audi 5000, extensively modified by a plaintiff's
consultant. In an effort to demonstrate how, theoretically, Audi's
were suddenly, and inadvertently, accelerating, he had drilled a
hole in the vehicle's transmission and then, with the flip of a
switch injected compressed air into it. Thus pressurized, the
transmission linkage would open the throttle. In the 60 Minutes
segment, produced by Allan Maraynes, the switch is positioned out of
camera range and the accelerator is shown going to the floor on its
own. Other than the modified Audi 5000 (which had been demonstrated
to ODI engineers months before the broadcast), NHTSA has never found
any production vehicle, of any type, with this sort of
configuration.
\12\ Transport Canada issued a report entitled ``Investigation
of Sudden Acceleration Incidents'' in December 1988, concluding
driver error caused the phenomenon. The Japanese Ministry of
Transport released their report, ``An Investigation on Sudden
Starting and/or Acceleration of Vehicles with Automatic
Transmissions,'' in April 1989, which concluded that there was no
common mechanical cause for sudden acceleration.
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To help resolve the issue and thoroughly explore topics not
fully investigated previously, NHTSA Administrator Diane Steed
ordered an independent review of SA in October, 1987 (the
``Study''). The Transportation Systems Center (TSC) of Cambridge,
Massachusetts was commissioned by NHTSA to study SA and identify the
factors which cause and/or contribute to its occurrence. Ten
different make/model/year vehicles--all with cruise control--were
selected for particular scrutiny. Included among these was a 1984
Mercury Grand Marquis. Not all of the vehicles had unusually high
SAI rates; some were chosen based on their use of certain design
approaches seen throughout the industry. In this way, the Study's
sample was reasonably representative of the United States' automatic
transmission-equipped vehicle population as a whole.
TSC collected literature, individual case documentation, and
data for each of the selected vehicles. Many drivers involved in an
alleged sudden acceleration incident were interviewed. TSC studied
and tested the vehicles' fuel, cruise control, and braking
systems.\13\ The vehicles' driving controls were evaluated for both
location within the cabin and operation. After gathering the
information, TSC convened a panel (the ``Panel'') of independent
experts in various disciplines \14\ to review the data and make
recommendations. The findings and conclusions were to be published
in a final report (i.e., Pollard and Sussman--Ed.).
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\13\ In some instances, the testing was performed by NHTSA's
Vehicle Research and Test Center (VRTC).
\14\ The curriculum vitae of all the panelists is included in
Appendix A to the Report. The panel was highly credentialed,
including Dr. John B. Haywood, professor of Mechanical Engineering
at M.I.T. and Director of its Sloan Automotive Laboratory, and Dr.
Phillip B. Sampson, Hunt Professor of Psychology, Tufts University.
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NHTSA specifically directed that TSC and the Panel consider all
potentially viable SAI causal hypotheses. Contributing factors were
to be considered, as well. They were to develop tests for each of
these hypotheses, through both engineering analyses and
experimentation, wherever feasible. In developing various
hypotheses, the following logical assumptions were used:
SA could be the result of a single primary causal
factor or could result from the action of a number of factors which
contribute to or increase the likelihood of a SAI.
Factors related to a SAI could include power-train
design, brake system design, and vehicle ergonomics (particularly
pedal configuration.).
A SAI must involve a significant increase in engine
power, which could be caused by a failure in an engine-control
system or a pedal misapplication (inadvertent depression of the
accelerator instead of, or in addition to, the brake).
If the SAI begins with a vehicle-system malfunction,
loss of control could occur through braking system failure or the
driver's failure to press the brake with sufficient force and/or the
driver inadvertently pressing on the accelerator.
If the SAI is initiated by a pedal misapplication of
which the driver is unaware, loss of control can occur.
The location, orientation, and force-deflection (how
far the pedals move for a given amount of force) characteristics of
pedals can influence the probability that the driver will mistake
the accelerator for the brake.
If the cause of the SAI is an electro-mechanical or
mechanical anomaly, there should be evidence of the failure.
If the SAI was caused by an intermittent electronic
failure (such as short-circuits, electromagnetic and/or radio-
frequency interference, etc), physical evidence may be very
difficult to find, but the failure mode should be reproducible
either through in-vehicle or laboratory bench tests.
The vehicles studied may or may not share the same
causal and contributing factors.
While applying these guiding principles, the Study covered:
Engines and their controls (including cruise control
systems), as well as transmissions, to determine whether and how
they might produce unwanted power;
The role of electromagnetic and radio-frequency
interference (EMI/RFI) and other environmental variables in
stimulating malfunctions in critical engine controls (including
cruise control systems);
Braking systems were examined in an attempt to
determine how they could fail momentarily but spontaneously recover
normal function; and
The role of human factors and ergonomic control design
considerations which might lead to pedal misapplications.
At the conclusion of TSC's effort, comprising thousands of
person-hours gathering data; comprehensively testing vehicles
including their systems and equipment; interviewing owners and
drivers; and inspecting crash scenes and the vehicles involved; a
report was released with the following conclusion: ``For a sudden
acceleration incident in which there is no evidence of throttle
sticking or cruise control malfunction, the inescapable conclusion
is that these definitely involve the driver inadvertently pressing
the accelerator instead of, or in addition to, the brake pedal.''
\15\
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\15\ Pollard and Sussman, 49.
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3.0 Electrical Circuits & Cruise Control

3.1 Electrical ``Power''

An electrical circuit may be defined generally as a system or
part of a system of conducting parts and their interconnectors
through which an electrical current is intended to flow.\16\
Electrical devices located within a circuit can only operate when
the circuit is closed (i.e., the loop is ``continuous'') allowing
electrical current to flow from its source, through the device, and
back to the source. Switches are used to control whether the circuit
is open (the device is off) or closed (the device is on). Switches
may be mechanical (e.g., a wall mounted light switch) or electronic.
The later includes transistors which respond to signals from other
electronic components. Typically, switches are located in the
positive (non-grounded) side of the circuit. ``Ground-switched'' or
``low side switched'' circuits refer to those where voltage (+) is
always available at the device and the switch is located on the
ground side of the circuit.
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\16\ McGraw-Hill, Encyclopedia of Electronics and Computers,
1988, 128.
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Power exists only when circuits are closed (by a switch) thereby
allowing electrical current to ``flow.'' Typically, if an electrical
device is operating even though its circuit is open (the switch is
off), a ``fault'' bypassing the switch exists. These ``faults'' are
sometimes generically referred to as ``short circuits'' or
``shorts.''
Even if an electrical circuit is closed, electrical devices only
operate when sufficient power is available. In electrical
engineering, ``power'' is defined as P = EI where P = Power in
watts, E = Electro-motive force (emf) in volts, and I = Current in
amperes. All electrical devices require a specified amount of
``power'' to operate properly. In the absence of adequate power,
electric motors, for example, may ``run'' but will not be able to
achieve their design speed. Other devices, such as solenoids, will
not perform their function if there is insufficient power available.

3.2 Automotive Electronics

Motor vehicle electrical circuit and component operation
conforms with the general description provided in the previous
section. Until the early 1970's, there was very little use of
electronics in motor vehicles. Prior to that time, automobile
``electronics'' comprised mostly auto radios, turn signals, and a
few ignition systems. Then, with the advent of government-mandated
fuel economy and emission regulations--as well as certain safety-
requirements--the use of electronics became more widespread and

[[Page 25029]]

most all were of ``solid-state'' design.\17\ Solid-state electrical
devices use transistors to, among other functions, control current
without resorting to heated filaments, vacuum gaps, or moving parts
(e.g., relays). Most of the cruise control systems in use since the
early 1980's use solid-state circuitry.
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\17\ The consumer electronics industry likewise was transformed
with the advent of transistors. Today, most every radio, computer,
cellular telephone, television, etc. is of solid-state design.
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3.3 Cruise Control Operation

Cruise controls are the only automotive devices, other than the
driver's feet, which can substantially affect engine power. However,
unlike ``flooring'' the accelerator, which rapidly opens the
throttle fully (wide-open throttle, or ``WOT''), most cruise
controls (including those in Ford vehicles) require a few seconds to
open the throttle, and most systems (including Ford's) are
mechanically limited to only open the throttle approximately 80% of
WOT. While this is a relatively large throttle opening, which may
produce substantial amounts of engine power, rarely is the power
produced enough to leave tire skid marks on dry pavement while
accelerating from a standing start.
The following will focus primarily on certain ground-switched,
electro-vacuum cruise controls because the petitioner's theory
involves these types of systems.
A typical ground-switched, electro-vacuum cruise control is
designed to operate as follows:
When drivers reach a speed they want to maintain with the cruise
control, they press the ``on'' and then the ``set'' button. Pressing
and then releasing the ``on'' button simply prepares the cruise
control system to receive a signal from the ``set'' button (like
pressing a VCR's ``on'' button prior to pressing ``play''). When the
set button (a ``switch'') is pressed, a cruise control electrical
circuit is closed. In some vehicles (including some built by Ford,
GM, and Volvo), the cruise control system is ``ground-switched'' and
pressing the button completes the circuit to ground. Only if: (1)
The system is turned on and there is sufficient power to activate
it; (2) the vehicle is traveling above a pre-determined minimum
speed (usually 25 to 30 mph); and (3) the driver's foot is not
pressing the brake pedal; will the cruise control then engage to
maintain the desired speed by holding the throttle open an
appropriate amount. The throttle's position is modulated by a vacuum
servo--a bellows-like device. Typically, there are two electro-
magnetic valves (known as ``solenoids'') which maintain a vacuum
within the servo. Vacuum is provided to the servo by the ``vac''
solenoid. The ``vent'' solenoid--as its name implies'depletes servo
vacuum. As long as the three conditions described previously are
met, and when operating as intended, the solenoids activate only
when the ``set'' button is pressed, closing the circuit.\18\ When
the solenoids' circuit is closed, electrical power--sufficient to
activate the solenoids'causes the ``vac'' solenoid to open and the
``vent'' solenoid to close thereby maintaining vacuum within the
servo sufficient to hold the throttle open only enough to maintain
vehicle ``set speed.'' Other than through an electrical fault
affecting the solenoids, the only way vacuum is maintained within
the servo--thus holding the throttle open--is by pressing the
``set'' or ``resume'' buttons (again, assuming all three pre-
conditions are met).
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\18\ This also applies to circumstances where the ``resume''
button is pressed if the cruise control had previously been ``set''
and then deactivated by pressing the brake.
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To ``turn off'' the cruise control (i.e., release servo vacuum),
the driver either presses the ``off'' button which erases the speed
memory in the cruise control module (``amplifier'') and opens the
vent solenoid, or steps on the brake pedal. Applying the brake does
two things: first it sends an electrical signal from an electronic
dump switch (EDS) through the amplifier to the vent and vac
solenoids which open and close (respectively) depleting servo
vacuum. This electrical signal is normally sent to the cruise
control system whenever the brake pedal is initially depressed about
\1/16\ inch. Second, there is also a mechanical vacuum dump valve
(MVDV) that opens every time the pedal is pressed (usually at least
\1/8\ inch but rarely more than \3/4\ inches). The MVDV is a
mechanical device designed to completely deplete servo vacuum should
an electrical fault occur in the solenoid system that would prevent
the EDS from functioning properly. Both the EDS and MVDV are
designed to activate well before the brake pedal has been depressed
enough to effectively engage the brakes. According to the Report
(page 8-9) ``In virtually all recent designs for factory-designed
cruise controls [including Ford's], where digital circuitry is now
the norm, two or more component failures are required to cause an
unintended throttle opening.'' Faults affecting cruise control
operation, and consequent vehicle movement from a stationary
position while the brakes are applied, must involve simultaneous
electrical (the solenoids) and mechanical (the MVDV and brake
system) failures.

4.0 The Petitioner's Allegations

The petitioner claims that (1) NHTSA has failed to consider
cruise control-related failures that ``bypass'' the cruise control
``control logic'' thus inducing SA in stationary vehicles; (2) NHTSA
has never considered SAI-related data gathered by the Ford Motor
Company (Ford) involving ``2,800 incidents of sudden acceleration
during 1989-1992;'' and (3) ``NHTSA has not addressed the fact that
there is no true failsafe mechanism to overcome sudden
acceleration.'' \19\
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\19\ Letter from Sandy S. McMath to NHTSA, July 19, 1999, 6.
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This analysis will address each of these allegations in the
order they were listed by the petitioner.

4.1 The Petitioner's First Allegation

The petitioner claims NHTSA should institute a new investigation
into the cause or causes of sudden acceleration because it
``neglected to consider the mechanisms that can cause sudden
acceleration by bypassing the control logic of the cruise control
system'' and thus ``induce sudden acceleration in a stationary
vehicle.''

4.1.1 The Cruise Control ``Bypass'' Theory

Since NHTSA completed its Study, SAIs and subsequent litigation
have continued. Consultants for various plaintiffs have speculated
that the SAI's were initiated by simultaneous, undetectable,
electrical and mechanical failures of the cruise control system.
This theory is based on their observation that some vehicles
(including those produced in whole, or in part, by Volvo, Ford, GM,
and Mercedes) are equipped with ground-switched cruise control
systems and, consequently, the vent and vac solenoid circuits
receive voltage whenever the vehicle's ignition is turned on. In
their opinion, the SAI occurs when there is an unintended engine
power increase due to a series of ground faults in the solenoid
circuitry. According to the theory's proponents, these ground faults
cause an inappropriate activation of the servo solenoids, opening
the throttle.
The petitioner, presently representing the parents of two
brothers injured in an alleged SAI,\20\ has retained Samuel J. Sero,
a plaintiff's consultant.\21\ Mr. Sero has testified for plaintiffs
in previous SAI lawsuits.\22\ Mr. Sero, and others, have testified
that vehicles are prone to SAI where, by design, voltage is present
at the cruise control servo solenoid circuits whenever the ignition
is turned on. They have theorized that the subject SAI may have
occurred because the vehicle's cruise servo may have inadvertently
activated due to randomly occurring faults. The petitioner outlines
the theory as follows:

\20\ See Section 5.0 for more details about this incident.
\21\ Mr. Sero worked for the Allegheny Power Company for twelve
years as a planning engineer, a standards engineer, and a
transmission lines engineer, investigating and maintaining the flow
of electricity through the company's system. He is a licensed
electrical engineer with a bachelor of science degree in electrical
engineering from Carnegie Institute of Technology (now Carnegie
Mellon University) in Pittsburgh. Mr. Sero has no professional
experience in the auto industry and no human factors training. The
theory propounded by Mr. Sero, and others, has never been published
nor is there any literature in the automotive engineering field
supporting it.
\22\ See Manigault and Jarvis.
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``Mr. Sero has determined that the source of uncontrolled
accelerations in Ford vehicles is the fact that voltage is supplied
to the servo the moment the ignition is turned on. Under this
condition all that is necessary to induce wide-open throttle [WOT]
is a completion of the circuit to the servo. This can be affected by
several discrete [separate] events and conditions that are
completely foreseeable: (a) The ground connection to the printed
circuit board [cruise control electronic control mechanism, or
amplifier] is opened or removed and either the vent wire or vacuum
servo is grounded; or (b) both the vent [solenoid] wire and vacuum
[solenoid wire] are grounded at the same time; or (c) a transient
fault condition injects a signal across the output section of

[[Page 25030]]

the electronic control unit inducing an effect similar to (a) or
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(b).'' \23\

\23\ McMath letter, 1.
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Scenarios (a) and (b) involve multiple ``hard'' electrical
faults while (c) relates to an injected signal generated by strong
electro-magnetic fields.
ODI notes that Mr. Sero's theory involves only one aspect of
sudden acceleration, i.e., an unintended engine power increase. None
of Mr. Sero's scenarios, on their own, would result in a SAI which,
by definition, involve high power acceleration and an apparent loss
of braking effectiveness.
Mr. Sero's theory, as it relates to SA, involves simultaneous,
undetectable electrical and mechanical failures. He has taken
exception to the use of the term ``theory'' to describe his
hypothesis, claiming:

It's not a theory. It's a reality. It will happen. If they [the
solenoid circuits] both complete a circuit to ground, you go to wide
open throttle.'' \24\

\24\ Jarvis, May 18, 1999 Daubert Hearing Tr. 28.
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There are two problems with Mr. Sero's claim: first, as we've
described earlier, the servo is mechanically limited so that it will
only open the throttle approximately 80% of ``wide open throttle;''
and, secondly, Mr. Sero's theory ignores two key elements of an
alleged cruise-control related SAI--mechanical failures of both the
MVDV and vehicle brake system. To conclude that his theory
adequately explains a SAI, an assumption must be made that not only
did a simultaneous electrical failure occur involving the servo
solenoid ground circuits but mechanical failure of the MVDV and
brake system occurred as well. Therefore, Mr. Sero's belief that
inadvertent cruise control servo solenoid activation explains SAIs
is, at best, theoretical, where ``theory'' is defined as ``a
proposed explanation whose status is still conjectural, in contrast
to well-established propositions that are regarded as reporting
matters of actual fact.'' \25\
---------------------------------------------------------------------------

\25\ The Random House College Dictionary (New York: Random
House, Inc.), 1362.
---------------------------------------------------------------------------

Mr. Sero goes on to claim these faults would be
undetectable.\26\ As of May 18, 1999 Mr. Sero himself had not been
able to verify that the types of failures underlying his theory were
actually occurring. While testifying as a plaintiff's witness in
litigation involving the alleged sudden acceleration of a 1991 Ford
Aerostar, the following exchange took place:
---------------------------------------------------------------------------

\26\ For example, during ``Dateline NBC's'' February 10, 1999
broadcast, Mr. Sero claimed that cruise control electrical faults
may occur ``if there is water in the wiring,'' and ``if water does
play a role, proving it would almost be impossible.''

Q: Sir, you are holding yourself out as an expert on this theory
and basing your testimony on your theory that this is what occurred,
isn't that so?
Sero: Yes.
Q: And you have never been able to verify it?
Sero; So far, no.\27\
---------------------------------------------------------------------------

\27\ Jarvis, Daubert Hearing Tr. 129.
---------------------------------------------------------------------------

However, Mr. Sero has an explanation for this conundrum. During
the same hearing, held to determine the relevance and reliability of
his theory, \28\ he was questioned by Judge Naomi Reice Buchwald.
---------------------------------------------------------------------------

\28\ Judge Buchwald, in her October 27, 1999 Directed Verdict
and Order, explains, ``The admission of Sero's . . . theories into
evidence was based on plaintiff's representation that they would be
connected by direct and circumstantial evidence to the incident at
issue. As the discussion infra will demonstrate, that promise was
illusory.''
---------------------------------------------------------------------------

Q: ``I'm just asking whether it's possible, if you had a mind-
set to learn this information, to find physical evidence of the
conditions that you are talking about.''
Sero: ``The only thing I can tell you, your honor, is that you
may. In reality, you probably won't. You'll find loose grounds,
they're easy to find. But the other conditions, I doubt that you
will ever find them. Will they exist? They may, yeah. ....but if
they're happening from contamination or moisture or gas, they would
go away.'' \29\
---------------------------------------------------------------------------

\29\ Jarvis, Daubert Hearing Tr. 66.
---------------------------------------------------------------------------

To date, no one known to NHTSA (including the petitioner and Mr.
Sero) has found any credible evidence that SAIs are occurring as a
result of simultaneous, undetectable, electrical and mechanical
failures, in any vehicle (including Fords).

4.1.2 What the NHTSA Study Found Regarding Simultaneous, Undetectable
Failures.

The petitioner says, ``to date, NHTSA has neglected to consider
the mechanisms that can cause sudden acceleration by bypassing the
control logic of the cruise control system . . . '' \30\ He goes on
to claim that ``Mr. Sero's findings make it clear that NHTSA was
mistaken and misinformed as to the nature of sudden acceleration.''
\31\ However, a review of the Study demonstrates that this claim is
without foundation. Clearly, the Study considered the possibility
that viable cruise control malfunctions could cause a SAI. But it
found no evidence that faults ``bypassing the control logic of the
cruise control system'' were a viable explanation for SAI.
---------------------------------------------------------------------------

\30\ McMath letter, 6.
\31\ Ibid., 2.
---------------------------------------------------------------------------

Under the petitioner's theory, a vehicle involved in a cruise
control related SAI would have had to experience the following
simultaneous failures: (1) at least two electrical failures of the
vacuum servo solenoid system; (2) a mechanical failure of the MVDV,
and (3) a mechanical failure of the brake system.\32\ Moreover,
according to Mr. Sero, a post-SAI vehicle inspection would find no
physical evidence that any of these systems failed. Thus, Mr. Sero's
theory is based on simultaneous electrical and mechanical faults,
involving more than one element of the vehicle's control system,
which would be undetectable after the incident has occurred.
---------------------------------------------------------------------------

\32\ Most SAI-involved drivers claim the vehicle would not
respond when the brakes were applied.
---------------------------------------------------------------------------

Here's what the Study found regarding multiple cruise control
malfunctions:
``Extensive laboratory testing of the operation of cruise controls
under stress from temperature extremes, power supply variations,
EMI/RFI and high-voltage discharges has demonstrated no failure
modes of any relevance to SAI. Analysis of their circuitry shows
that for nearly all controls designed in the past few years [``all''
in the case of Ford], two or more independent, intermittent failures
would have to occur simultaneously to cause throttle opening in a
way that would be difficult to detect after the incident. The
occurrence of such simultaneous, undetectable failures is virtually
impossible.'' \33\
---------------------------------------------------------------------------

\33\ Pollard and Sussman, viii.
---------------------------------------------------------------------------

Thus, Mr. Sero's theory was addressed, and rebutted, during
NHTSA's Study.

4.1.3 ``Stand-alone'' vs. ``Integrated'' Cruise Control Systems

To examine Mr. Sero's theory further, ODI analyzed its data to
compare the SAI rate for different Ford cruise control systems.
With the introduction of the Taurus/Sable models in December,
1985, Ford began using an ``integrated'' cruise control system. In
such a system, the cruise control amplifier (a solid-state device
containing the ``control logic'') was no longer a separate (``stand-
alone'') component. Instead, its functions were incorporated
(``integrated'') into the Electronic Engine Control module (EEC).
This was done to simplify the system and reduce cost. It is
noteworthy that the system was also designed so that the servo
solenoids could not receive sufficient power for activation when the
vehicle was stationary and the ignition was in the ``run'' position,
even if faults in the ground-side circuitry occurred. Only when both
the positive and negative (``ground'') circuits are closed is there
enough power available to activate the solenoids in the integrated
system unless it has been modified in some manner inconsistent with
Ford's design.
Between 1986 and 1992, Ford built a number of model lines with
integrated cruise control systems. After the 1992 model year, only
the Taurus SHO was so equipped. Ford has stated that it returned to
a stand-alone cruise control amplifier because it needed to use the
limited EEC connector capacity for other functions such as
electronically controlled automatic transmissions and additional,
emissions-related inputs. Those models returning to the stand-alone
system retained the earlier circuitry, which provided full
electrical power to reach the servo solenoids when the vehicle was
stationary with the ignition in ``run.'' Also, beginning in 1992,
Ford began phasing in a fully electronic cruise control system,
doing away with the vacuum servo completely. In some cases, then,
certain identical models were initially equipped with stand-alone
cruise controls; then were built with integrated systems; then
returned to the stand-alone system; and finally were built without
vacuum servos at all. These changes provide an excellent opportunity
to assess Mr. Sero's theory. If the rate of SAIs for vehicles
equipped with the stand-alone system were significantly greater than
for those without, it would support the theory.
One such vehicle is the Lincoln Town Car, which has an added
advantage (for purposes of assessing cruise control's role in SAI):
every 1985 through 1996 Town Car was built with a cruise control
system of one type or

[[Page 25031]]

another. Thus, rate variations could not be alleged to result from
the ``mix'' of Town Cars with and without cruise controls. The
following cruise control systems were used in the 1985 through 1996
Town Cars:

Table 1.--Town Car Cruise Control Type by Model Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996
--------------------------------------------------------------------------------------------------------------------------------------------------------
VacSA VacSA VacSA VacEC VacEC VacEC VacSA NGSC NGSC NGSC NGSC NGSC
--------------------------------------------------------------------------------------------------------------------------------------------------------
VacSA = Vacuum system with stand alone amplifier.
VacEC = Vacuum system with amplifier function in EEC.
NGSC = Electronic speed control--no vacuum.

Initially, the Town Car was equipped with the stand-alone system
(``VacSA''). Then, with the 1988 model year, they were built with
the integrated system (``VacEC''), i.e., there was insufficient
power available to activate the solenoids when the vehicle was
stationary even if the ignition was in ``run.'' For the 1991 model
year, Ford returned to the stand-alone system (and, consequently,
the solenoids received full electrical power whenever the ignition
was in ``run''). For the 1992 model year, Ford changed engines from
the 5.0 Liter V8 to the 4.6 Liter single overhead cam (SOHC)
version. Beginning November 4, 1991, all 1992 Town Cars were built
with a fully electronic cruise control system, eliminating the
vacuum servo altogether and, as of November 14, 1991, all were built
with shift-lock.\34\ By comparing the 1985 through early 1992 model
years, Town Car offers a unique opportunity to evaluate the effect
vacuum controlled cruise controls have on SAI rates by allowing us
to compare identical vehicles with one variable--i.e., whether or
not the servo solenoids can receive full power any time the ignition
is in ``run.''
---------------------------------------------------------------------------

\34\ ``Shift-lock'' will be explained in Section 4.2.1.
---------------------------------------------------------------------------

ODI searched its complaint database for 1985 through 1991 model
year (MY) Town Car complaints that have been categorized as ``sudden
acceleration.'' If Mr. Sero's theory were valid, the SAI rate for
Town Cars built with the integrated system (MY 1988 through 1990)
should be significantly lower than for those with a ``stand-alone''
system. This is because there is insufficient power to activate the
servo solenoids in this system even if ground faults occur while the
vehicle is stationary. However, the rate is about the same for both
the stand-alone and integrated systems: 13.7 (stand-alone) vs. 15.1
(integrated)--both very low rates, particularly compared to the 1978
through 1987 Audi 5000s, which had a SAI rate of 586/100K. The
relatively constant SAI rate when comparing both Ford cruise control
systems is a strong indicator that cruise control ground circuit
faults are not contributing to SAIs.

4.2 The Petitioner's Second Allegation

The petitioner claims NHTSA ``apparently failed to consider the
data collected by Ford Motor Company in its investigation of 2,800
incidents of sudden acceleration during 1989-1992.'' \35\
---------------------------------------------------------------------------

\35\ McMath letter, 6.
---------------------------------------------------------------------------

4.2.1 The ``Updegrove Study,'' Shift-locks, and Driver Behavior

Beginning in early 1987, Ford's Service Engineering Office
(organizationally located within its Parts and Service Division)
began gathering information about incidents where an alleged
unintended engine power increase occurred in Ford vehicles.
Previously, this information had been gathered by Ford's district
representatives (typically engineers). In 1989, Ford noted a
substantial increase in the number of these incidents. In response,
it organized a ``Special Projects Team,'' headed by Alan Updegrove,
a Ford engineer. Ultimately, Ford gathered and analyzed information
about 2,877 incidents (approximately), many from Hertz and Budget
Rent-a-Car outlets. This effort has become known as the ``Updegrove
Study'' (Updegrove).
Sixty percent of the incidents reviewed by Updegrove involved
sudden acceleration (as defined in Section 2.1, previously). The
team focused on determining whether the alleged unintended engine
power increase could be verified by physical evidence. In December
1992, the project was discontinued without identifying a root cause,
although there were indications that drivers were mistakenly
pressing the gas pedal instead of the brake pedal (e.g., ``pedal
misapplication'').\36\ In 1990, Ford began building some of its
vehicles with shift-lock devices and by the 1992 model year all new
Ford vehicles had them. With shift-lock, the automatic transmission
may not be shifted out of ``Park'' without the driver simultaneously
stepping on the brake. According to Mr. Updegrove, the SA rate for
the shift-lock equipped vehicles was substantially lower than it was
for those without shift-lock.\37\ This trend provided credible
evidence that pedal misapplications were the major cause of SAIs
since shift-locks influence driver behavior alone.\38\ Since SA
first began to be studied, some individuals have doubted that driver
error or pedal misapplication explains SAIs. For example, Mr. Sero
has stated, ``Mysteriously, we have all these people who are
slamming down the throttle pedals, but I can't buy it.''\39\
However, compelling evidence exists supporting the pedal
misapplicaiton finding.
---------------------------------------------------------------------------

\36\ Ford Motor Company, Profs Field Bulletin No. 92182DB60005,
June 30, 1992.
\37\ June 22, 1999 deposition of Alan Updegrove in Jarvis v.
Ford, Tr. 149.
\38\ NHTSA data show that some alleged SAIs continue to occur,
even in vehicles equipped with shift-locks, whether they had cruise
control or not. Most of these involve events which began when the
transmission was not being shifted, i.e., it was already in
``Drive'' or ``Reverse.'' In other cases, SAIs involved drivers who
became confused and disoriented by the rapid, frightening events
occurring during the incident. Consequently, their best
recollections of the precise event sequence may be faulty. Finally,
some involve vehicles where the shift-lock had been disabled. For
example, ODI investigated a Minneapolis double-fatality crash in
which a stationary 1997 Ford Econoline police van, without cruise
control, suddenly accelerated into a parade crowd. The vehicle's
shift-lock had been inadvertently disabled by the Minneapolis Public
Works garage. For more information on this incident, refer to NHTSA
Report MF99-002, dated 1/12/99, and Supplemental Report, MF99-002,
dated 3/18/99.
\39\ NBC News, ``Dateline NBC,'' Not So Fast, February 10, 1999.
---------------------------------------------------------------------------

In a 1989 study, Richard A. Schmidt reviewed evidence ``for a
human factors explanation of the phenomenon of unintended
acceleration, whereby at the start of a driving cycle an operator
experiences full, unexpected acceleration for as long as 12 seconds
with an apparently complete failure of the brake system, often
leading to an accident.'' \40\ Schmidt then posed the following
questions, echoing those who doubt SAIs result from unintended
driver errors in pedal application:

\40\ Schmidt, 345.
---------------------------------------------------------------------------

``However, as logical and simple as this viewpoint [that SAIs
are the result of a pedal error] may sound, a number of other
aspects of this phenomenon at first glance make such simple human
factors accounts difficult to believe. First, what is the source of
such foot placement errors? Why would experienced drivers, often
with hundreds of thousands of miles of experience throughout their
lifetimes, suddenly make such errors, and what are the physiological
and psychological processes that precipitate them? Second, even if
the wrong pedal were contacted, why would the driver not perceive
this error immediately? The brake and accelerator pedals are in
different places with respect to the driver's body, and the dynamic
``feel'' of these two pedals is considerably different, make it
difficult to understand how such an error would not be detected
easily. Third--and perhaps most puzzling--why would the driver
persist in pressing the wrong pedal for sufficient time that an
accident could occur, in some cases for as long as 12 seconds?
Usually ample time for corrective action (to turn off the ignition
or shift to Neutral or Park) is available, and yet drivers typically
report no attempts to take such action until

[[Page 25032]]

the accident occurs, bolstering their belief in a mechanical
cause.'' \41\
---------------------------------------------------------------------------

\41\ Ibid., 346-347.
---------------------------------------------------------------------------

Schmidt concluded that pedal placement errors rarely involve
``conscious choice,'' and drivers involved in a sudden acceleration
crash are therefore frequently not aware of their errors in foot
placement.
Once unintended acceleration is initiated, a serious
contributing factor is the failure to detect and correct the foot
placement error, mainly because of lack of effective feedback from
the well-learned, essentially automatic foot movements. The onset of
the unintended acceleration may produce a startle reaction
compounded by severe time stress, placing the individual in a state
of hyper vigilance [panic] in which information-processing
activities necessary to take effective action are seriously
disrupted.'' \42\
---------------------------------------------------------------------------

\42\ Ibid., 363.
---------------------------------------------------------------------------

SAIs typically involve vehicles that are relatively unfamiliar
to the driver \43\ and occur much more frequently as driver age
increases: there is a 100-600% over-involvement of drivers older
than 60 years (normalized for miles driven per year) and under-
involvement for drivers 15-40 years of age.\44\ The petitioner's own
case, currently in litigation, is consistent with this finding.
There, the SAI involved a vehicle driven by a 61 year-old female
which she and her husband had owned for 93 days.
---------------------------------------------------------------------------

\43\ Perel, M. (1983). Vehicle Familiarity and Safety (Tech.
Report DOT HS-806-509). Washington, DC: U.S. Department of
Transportation.
\44\ National Highway Traffic Safety Administration, Engineering
Analysis Action Report, EA78-110, August 5, 1986, 11.
---------------------------------------------------------------------------

4.2.2 Updegrove and NHTSA SAI Data

The aforementioned NHTSA studies and reports were conducted and
published prior to the conclusion of the Updegrove effort. Thus,
none of the Updegrove material was--or could have been--included in
NHTSA's Study because it was concluded just as the Updegrove effort
began. To assess whether the Updegrove study contains information
undermining NHTSA's findings, ODI examined the Updegrove data.
We first reviewed the 472 SAI reports for the Ford Thunderbird/
Mercury Cougar. We chose these models because, according to Ford,
the 1989 Thunderbird/Cougar had a disproportionate number of SAI
reports, which prompted the company to undertake the Updegrove
investigation.\45\
---------------------------------------------------------------------------

\45\ Ford Motor Co., Alleged Unintended Acceleration
Investigative Effort Summary, 1.
---------------------------------------------------------------------------

With the 1990 model year, Ford began installing brake/start
interlocks in the Thunderbird/Cougar models. Unlike ``shift-
locks''--where the driver may not shift the automatic transmission
out of ``Park'' without simultaneously pressing on the brake pedal--
a brake/start interlock system requires that the driver
simultaneously press on the brake pedal and rotate the ignition key
to start the engine. If the brake pedal is not pressed, the starter
will not engage. Brake/start interlocks do not affect the driver's
ability to shift the transmission out of ``Park'' and consequently
are not as effective at reducing SAIs as shift-locks, which do.
In analyzing Updegrove's data, ODI found it supports Ford's
claim that its study was initiated because the sudden acceleration
report rate increased for the 1989 MY Thunderbird/Cougar vehicles.
The data also confirms that the brake/start interlock system
installed in the 1990 MY Thunderbird/Cougar vehicles was not as
effective at reducing the rate of SAI's as was the shift-lock system
installed in the later model years.\46\ Updegrove documented 466 SAI
reports involving 1985-1991 Thunderbird/Cougar without shift-lock
and 6 involving the subsequent model years equipped with the
devices. This equates to a SAI report rate of 30.2 per 100,000
vehicles vs.1.8 per 100,000 vehicles, respectively.\47\
---------------------------------------------------------------------------

\46\ For example, based on the Updegrove date, the SAI report
rate for the 1989 Cougar/Thunderbird was 154/100,000 vehicles. The
rate for the 1990 model year (with brake/start interlocks) was 54.6/
100,000 vehicles and the rate for the 1991 model year (with shift-
lock) was 10.8/100,000.
\47\ The Updegrove data was not normalized for exposure time and
some older models may have higher report counts because they have
been on the road longer. To avoid this problem, the ODI data is
limited to sudden acceleration reports received within a consistent
4-year ``window'' based on the model year being analyzed. For
example, the 1989 MY report count is comprised of all SAI reports
received by ODI between January 1, 1988 and December 31, 1991.
---------------------------------------------------------------------------

To verify the trend observed in the Updegrove data, ODI analyzed
the sudden acceleration reports stored in its complaint database for
the same model/model years (1985 through 1993).
ODI reviewed 243 SAI reports for the non-shift-lock equipped
Thunderbird/Cougar and 14 reports for the 1991-1993 model years
equipped with the device. The report rate for each is 17.3 and 2.9
per 100,000 vehicles, respectively. While the overall ODI data
counts are lower than those identified by Updegrove (primarily
because vehicle owners are more likely to report a vehicle problem
to the manufacturer than to the U.S. Government), the ODI data
confirm the trend observed during the Updegrove study--that shift-
locks dramatically reduced the sudden acceleration report rate.
ODI also analyzed both Updegrove and ODI data for the Ford
Aerostar because, according to Updegrove, ``we began to see the
Aerostar numbers rising and in our discussion with both Hertz and
Budget, they asked us to get involved with those.'' \48\ Updegrove
documented a total of 519 SAI reports involving Aerostars, which
were introduced by Ford in MY 1986.
---------------------------------------------------------------------------

\48\ Ibid.
---------------------------------------------------------------------------

The Updegrove data indicate that the addition of a shift-lock in
MY 1992 dramatically reduced the number of Aerostar SAI reports--518
involving Aerostars without a shift-lock and one with the device.
However, these data may be misleading because the Updegrove study
was concluded in December, 1992, conceivably before any trends
related to shift-lock-equipped Aerostars would fully develop. So, to
verify the trend observed in Updegrove, ODI also analyzed its
complaint database for sudden acceleration reports from Aerostar
owners for model years 1986 through 1993, with the adjustment for
exposure described in footnote 47.
There were 168 SAI reports for Aerostars without shift-lock and
7 SAI reports involving those with the device in the ODI complaint
database. This results in a report rate of 16.6/100,000 vs. 1.7/
100,000 Aerostars, respectively. This substantial rate decrease
confirms that shift-lock devices are extremely effective at reducing
the probability a SAI will occur. Shift-locks, however, cannot
eliminate SAI altogether because they do not address all types of
pedal-misapplications, including those where the incident was not
immediately preceded by a transmission shift out of ``Park'' (see
footnote 38--Ed.).
Finally, ODI examined the data from both its database and the
Updegrove study for the Lincoln Town Car. We chose this model
because the petitioner's letter refers to a SAI involving a 1988
Lincoln Town Car. Updegrove documents a total of 204 SAI reports
concerning 1985-1993 Town Cars. ODI reviewed 123 SAI reports in its
complaint database for the same model years.
The report frequency trends observed in both the Updegrove and
ODI Town Car data are consistent with those discussed earlier--the
SAI report rate is sharply reduced for vehicles equipped with shift-
lock. Using the Updegrove data, the rate for Town Cars without
shift-lock is about 26/100,000. Updegrove documented no SAIs
involving Town Cars equipped with shift-lock; however, this is not
determinative because Ford was just introducing shift-lock into
these models as the Updegrove study was concluding. The ODI analysis
does not have this shortcoming and reveals a SAI complaint rate of
about 4.1/100,000 vs. 15/100,000 for Town Cars with and without
shift-lock, respectively. The following table documents our
findings:

Table 2.--Updegrove/ODI SAI Rate Comparison for Selected Vehicles With/Without Shift-Lock
----------------------------------------------------------------------------------------------------------------
No shift-lock No shift-lock
Models (Ford) (ODI) Shift-lock (Ford) Shift-lock (ODI)
----------------------------------------------------------------------------------------------------------------
T-Bird/Cougar................... 30.2/100,000...... 17.3/100,000...... 1.8/100,000....... 2.9/100,000
Aerostar........................ 51.2/100,000...... 16.6/100,000...... 0.25/100,000...... 1.7/100,000
TownCar......................... 26.3/100,000...... 14.8/100,000...... 0................. 4.1/100,000
----------------------------------------------------------------------------------------------------------------

[[Page 25033]]

In summarizing the Updegrove study's results, J.P. King
(Manager, Ford Parts and Service Engineering Office) wrote:
``Overall, the results of the investigation confirm the
suggested cause stated in the NHTSA study, published in January 1989
(``An Examination of Sudden Acceleration''). This report on the
subject, identified operator pedal misapplication as the most likely
cause of these events.'' \49\
---------------------------------------------------------------------------

\49\ Ford Motor Company, Profs Field Bulletin No. 92182DB60005,
June 30, 1992.
---------------------------------------------------------------------------

Mr. King was referring to the NHTSA Report, which stated,

``For a sudden acceleration incident (SAI) in which there is no
evidence of a vehicle malfunction, the inescapable conclusion is
that the driver inadvertently pressed the accelerator instead of, or
in addition to, the brake pedal.'' \50\

\50\ Pollard and Sussman, 49.
---------------------------------------------------------------------------

The suggestion that the Updegrove data undermines this finding
is erroneous.

4.3 The Petitioner's Third Allegation

According to the petitioner, ``NHTSA has not addressed the fact
that there is no true failsafe mechanism to overcome sudden
acceleration.'' Before addressing this allegation, this document
will discuss the brake pedal-activated cruise control disconnect
system on Ford vehicles (since the petition focuses on them). The
following relates only to those Fords with ground-switched, vacuum
activated cruise controls.

4.3.1 The Mechanical Vacuum Dump Valve (MVDV)

Whenever the cruise control system is set to maintain a desired
vehicle speed, it can be easily disengaged by pressing lightly on
the brake pedal. When the brake pedal is pressed, two cruise
control-related events occur: first, the electric dump switch
(EDS)--positioned immediately adjacent to the brake pedal arm--
closes, sending an electrical signal to the cruise control amplifier
(stand-alone) or EEC (integrated), which activates the servo's vent
solenoid. When this happens, the throttle is no longer influenced by
the cruise control even if the brake pedal is subsequently released.
Only by pressing the ``set'' or ``resume'' button again--assuming
the system is ``on;'' the vehicle is traveling above the minimum set
speed; and the brakes are not applied--will the cruise control
reactivate to maintain vehicle speed. The EDS normally closes when
the brake pedal is depressed as little as \1/16\ inch. In the 1988
Town Car involved in the petitioner's litigation, the EDS closes
when the brake pedal is depressed 1/16 inch, which occurs whenever 2
lb. of force is applied to the pedal, whether the brakes are
``boosted'' \51\ or not. Second, to provide an independent means of
isolating the servo from the throttle in the event of electrical
failure (thus rendering the EDS inoperative), the vehicles are also
equipped with an extremely simple mechanical pneumatic valve
(mechanical vacuum dump valve, ``MVDV'') which, like the EDS, is
located immediately adjacent to the brake pedal arm. The MVDV opens
whenever the brake pedal is pressed at least 3/4 inch. In the
aforementioned Town Car, this occurs at about 3.5 lb. with boosted
brakes and 12 lb. without. All servo vacuum is immediately depleted
at that point. By maintaining relatively little force on the brake
pedal, the MVDV will continue to release the throttle independently
of the vent solenoid. Only a mechanical failure of the MVDV or a
pinched MVDV vacuum line would keep this from occurring. Either of
these circumstances would not be self-correcting and would be easily
detected during a vehicle inspection.
---------------------------------------------------------------------------

\51\ ``Boosted'' means power-assisted (i.e., ``power'') brakes.
---------------------------------------------------------------------------

The MVDV is comprised of five parts. Its housing is a plastic
cylinder with a nipple at one end. A spring-loaded plunger is
positioned inside the housing. A rubber o-ring seals the plunger
within the nipple whenever the brake pedal is not being depressed.
In this way, the o-ring maintains vacuum within the servo unless the
brake pedal is pressed. When the brake pedal is pressed, the plunger
moves forward, the o-ring no longer seals the nipple, and servo
vacuum is immediately depleted. If the o-ring fails and a vacuum
leak results, the cruise control will not open the throttle at any
time.
The MVDV is installed in the vehicle so that it is closed (i.e.,
maintaining servo vacuum) when the brake pedal is not depressed.
Mechanics are instructed to adjust the MVDV so that there is a gap
of .05 inch between its housing and the ``adapter'' [brake pedal
arm--Ed.] \52\ By design, the cruise control will not function if
this gap is not maintained. Here's why: If the gap is substantially
greater than .05 inch, the MVDV would always be open (regardless of
brake pedal position). Thus, vacuum could not be maintained within
the servo. If the gap is fractionally less than .05 inch, the MVDV
would press on the brake pedal, activating the EDS.\53\ The MVDV is
securely mounted in a substantial bracket so that its adjustment is
unaffected by normal vehicle operation and most crash forces. Any
MVDV misadjustment would not be self-correcting and would be easily
noted during a vehicle inspection.
---------------------------------------------------------------------------

\52\ Ford Motor Co., 1988 Lincoln Town Car Shop Manual, 37-05-4.
\53\ In fact, this gap is so critical to cruise control
operation that Ford cautions mechanics as follows: ``CAUTION: Black
dump valve housing in contact with adapter can cause stoplamps to
activate with temperature change.'' Ibid.
---------------------------------------------------------------------------

In the following testimony, Mr. Sero confirms a vehicle will
stop if the brakes and MVDV are functioning properly:

Q: ``So, if everything you said occurs, and the vehicle has a
properly functioning brake system and a properly functioning dump
valve, all they need to do to correct the condition is to put their
foot on the brake, isn't that so?
Sero: To correct the condition? All----
Q: To stop the vehicle.
Sero: To stop the vehicle, yes.'' \54\

\54\ Jarvis v. Ford, Daubert Hearing Tr. 133.
---------------------------------------------------------------------------

However, he has also claimed Ford MVDV's are prone to failure
and describes one failure mode as:
``First of all, this is a threaded piece on the end. Plus, it's
mounted in a bracket on the brake pedal. Brackets come loose and
move, you won't engage the dump valve. If the dump valve itself is
not threaded to the proper position, you won't engage the dump
valve.'' \55\
---------------------------------------------------------------------------

\55\ Ibid., 84.
---------------------------------------------------------------------------

This description is inconsistent with MVDV design and mounting
and is not supported by any field data.

4.3.2 A Cruise Control ``Fail-safe?''

The petitioner has claimed that, ``NHTSA was misled into
believing that the electrical [emphasis added] cruise control
disengage mechanism activated by the brake pedal is always available
to save the driver should a malfunction of the cruise control system
induce sudden acceleration'' and then quotes from the Report:

\56\ McMath letter, 4.
---------------------------------------------------------------------------

However, the petitioner did not include the entire quote from
the NHTSA Report (the omitted portion is in bold print):

``All cruise controls incorporate one or more fail-safe devices
designed to disable the control whenever the brake pedal is
depressed. Unlike the cruise control itself, these simple switches
and valves are not subject to complex, intermittent failure modes
which would permit the cruise control to remain engaged during the
SA incident, but which would be difficult to recognize after the
fact. Intermittent failure modes for such devices result in
deactivation of the cruise control. In most factory-installed cruise
controls [including those in Ford vehicles], redundant electrical
and pneumatic [emphasis added] brake-pedal defeats are employed.
Chapter 4 of Appendix H describes in detail the functioning of the
cruise control in the Audi 5000, which is typical of all modern,
micro-processor designs.'' \57\
---------------------------------------------------------------------------

\57\ Pollard and Sussman, page 9, third full paragraph.
---------------------------------------------------------------------------

The referenced ``pneumatic'' defeats, in Ford vehicles, are
MVDV's. NHTSA recognized that there was a separate ``failsafe''
mechanism to disable the cruise control in the event the
``electrical'' defeats were inoperative due to random and isolated
electrical failures. The agency has always recognized that random
and isolated electrical failures could occur, but noted that the
probability this could cause a SAI was extremely small.'' \58\
However, apart from

[[Page 25034]]

these general electrical failures, the NHTSA Report also addressed
the potential role of the MVDV in SAIs by stating:
---------------------------------------------------------------------------

\58\ The Pollard and Sussman Report states, at page 9, ``While
it is not extremely rare for an electronic part or solder joint to
fail intermittently in a manner that is difficult to recognize or
diagnose, the probability is extremely small for two or more parts
or connections to fail simultaneously at exactly the right moment to
cause an SAI, but then fail to do so during subsequent diagnostic
tests.''
---------------------------------------------------------------------------

``Multiple simultaneous failures in [the cruise control system]
would be required to produce SAIs from a stopped or low-speed
condition. In addition to these [electrical] failures, a
simultaneous mechanical failure in the vacuum breaker [MVDV]
attached to the brake pedal would be required to prevent the driver
from defeating the cruise control by braking. No evidence of such
failures was found in vehicles exhibiting SAIs by TSC or ODI
investigators.'' \59\
---------------------------------------------------------------------------

\59\ Pollard and Sussman, Appendix H, ``Introduction and
Summary,'' 1-4.
---------------------------------------------------------------------------

No evidence has been produced to date indicating that this
finding, published in 1989, was erroneous.
It is an essential part of Mr. Sero's theory that the SAI-
involved vehicles either are not equipped with a MVDV (not likely in
vacuum activated cruise control systems) or, if they are, it failed.
However, to date, Mr. Sero has found no evidence that a MVDV
malfunction occurred in any of the SAI-involved vehicles that he
inspected. \60\
---------------------------------------------------------------------------

\60\ For example, in Jarvis (Trial Tr. 948), Mr. Sero, when
asked whether he had any evidence that the MVDV was improperly
installed, calibrated, or operating, answered ``No.''
---------------------------------------------------------------------------

The petitioner's claim that ``NHTSA has not addressed the fact
that there is no true failsafe mechanism to overcome sudden
acceleration'' is simply wrong. NHTSA explicitly noted that in the
event of unintended throttle opening due to a cruise control
malfunction, the MVDV is designed to immediately deplete cruise
control servo vacuum, and thus release the throttle, if the driver
applies the brakes even lightly'a reasonable scenario. However, the
petitioner posits that this is unreasonable:
``By maintaining that the brake system and the devices activated
by the brake pedal (the dump valve and the electrical cruise control
shut-off) provide adequate failsafe protection, NHTSA in effect
makes the driver the throttle's failsafe mechanism, since he or she
is responsible for affirmatively taking corrective action to
eliminate the peril.'' \61\
---------------------------------------------------------------------------

\61\ McMath letter, 6.
---------------------------------------------------------------------------

This position is echoed by his consultant (Mr. Sero) who
testified that:
``The dump valve [MVDV] is not an inherently good safety
mechanism. The reason it isn't is it depends on the operator pushing
the brake pedal.'' \62\
---------------------------------------------------------------------------

\62\ Jarvis v. Ford, Daubert Hearing Tr. 83.
---------------------------------------------------------------------------

Sero went even further by claiming that applying the brakes, in
the event of a cruise control malfunction, will only stop the
vehicle:

``If you know enough to keep your foot on the brake and keep doing
it'' \63\

\63\ Ibid., 133. Later in the same hearing (Tr. 171), the Court
asked Mr. Sero (who had again testified that the dump valve would
only work if the driver continued to press the brake pedal), ``Well,
why in heaven's name, if your car was shooting out from under you
and you put your foot on the brake and it was effective, would you
take your foot off the brake?'' [ emphasis added]
---------------------------------------------------------------------------

Thus, the petitioner and his consultant take the position that
drivers are not responsible for the safe operation of their vehicle.
This concept is contrary to the motor vehicle laws in each of the 50
states which hold the driver ultimately responsible for safe vehicle
operation.

4.3.3 The VRTC Braking Tests

To evaluate vehicles' braking effectiveness in overcoming
vehicle acceleration due to a potential cruise control malfunction,
TSC contracted with the VRTC to conduct the series of braking tests
documented in Appendix E of the NHTSA Report. In addition to
demonstrating that vehicle brakes are capable of stopping such
accelerations with relatively low brake pedal efforts, these tests
also undermine the petitioner's claim that NHTSA never considered
cruise control system failures that would ``entirely bypass the
system's control logic.'' \64\
---------------------------------------------------------------------------

\64\ Ibid., 5.
---------------------------------------------------------------------------

According to a Memorandum Report within Appendix E, the purpose
of the test program was to ``determine vehicle performance
(acceleration and stopping) with simulated cruise control failures''
including a ``direct short of the vacuum solenoid and regulator
valve [sic] to ground`` \65\ [emphasis added]--precisely the
scenario envisioned by the petitioner's theory. According to VRTC,
``the primary purpose of this part of the test was to determine how
rapidly the subject vehicles can accelerate from a stationary
position if the cruise control system was to malfunction and begin
to open the throttle as soon as the driver shifted the transmission
into `Drive.' ''\66\ Ten vehicles--representing a broad spectrum of
drive-line and cruise control configurations--were tested, including
a 1984 Mercury Grand Marquis and 1985 Cadillac DeVille. Both the
Mercury and Cadillac are equipped with vacuum servos and ground-
switched solenoids. VRTC's use of the term ``vacuum solenoid and
regulator valve,'' is a holdover from the Audi testing they had
conducted earlier and should have read ``vent and vacuum
solenoids.'' \67\
---------------------------------------------------------------------------

\65\ Pollard and Sussman, E-31.
\66\ Ibid., E-32.
\67\ Pollard and Sussman, on page 9, provide a clearer
description of this testing by stating, ``the maximum accelerations
produced by simulated cruise control failures, which were associated
with faults that drove the highest possible current through the
vacuum solenoids or actuators [emphasis added] were significantly
less than those generated by drivers pressing their gas pedals to
the floor.''
---------------------------------------------------------------------------

While preparing this petition response, ODI contacted the
personnel involved in the subject testing and verified its purpose
and methodology, particularly Test Series 6. This Series' primary
purpose was to evaluate acceleration and braking performance if, for
some reason, the cruise control servo inadvertently activates while
a vehicle is stationary with its engine running. They accomplished
this by modifying the cruise control system, isolating its servo
from the controlling mechanism (e.g., an amplifier, for instance),
and disabling the MVDV. Then, by flipping switches in a control box
(part of their modifications), they could apply vacuum to the servo
independently of the solenoids. In this way, they created a ``worst-
case'' situation where every cruise control engagement threshold
(i.e., the system is not ``on,'' minimum set speed, transmission
selector position, and brake application, etc.) was intentionally
bypassed. With vacuum applied in this way, the servo would open the
throttle as far it could even though the vehicle was stationary.
\68\ After accelerating forward for two seconds, \69\ the vehicle
was stopped by applying the brakes with a variety of pedal forces.
The throttle was not released until the vehicle had come to a stop.
The total distance traveled, at each brake apply force, was then
measured. In this way, the brakes' ability to stop the vehicle,
should the throttle be held open by a malfunctioning cruise control
system, was evaluated.
---------------------------------------------------------------------------

\68\ The cruise control servo on Ford vehicles is mechanically
limited so it can only open throttle about 80%. The servo cannot
fully open the throttle (wide open throttle or WOT), as happens when
flooring the accelerator.
\69\ Pollard and Sussman, page 10, explain the delay as follows:
``because an unexpected increase in engine power may produce a
slower-than-normal reaction time (normal braking reaction time is
about one second), a series of tests was conducted in which braking
was not initiated until two seconds after a simulated cruise control
fault.''
---------------------------------------------------------------------------

These tests revealed that brake pedal application forces of 60
lb.\70\ would have stopped all but one of the ten tested cars in
about 45 feet or less. The exception was the 5.0 liter Camaro Z-28,
which had the highest power-to-weight ratio among those tested and
required as much as 79 feet. Higher brake forces generally reduced
these distances. Here are the test results as they appear in the
Report: \71\\\
---------------------------------------------------------------------------

\70\ In a study by R.G. Mortimer, L. Segal, H. Dugoff, J.D.
Campbell, C.M. Jorgeson, and R.W. Murphy entitled ``Brake Force
Requirements: Driver-vehicle braking performance as a function of
brake system design variables,'' it was found that 99% of all
subjects (male and female) were able to generate brake pedal forces
of at least 60 lbs.
\71\ Pollard and Sussman, 11.
\72\ Because of its mechanical cruise control, the Chrysler unit
could not be connected to the electrically operated test recorder.
However, worst-case faults for this unit were simulated by plugging
the vacuum release ports and applying available manifold vacuum. The
peak speeds achieved in two seconds were less than 5 mph, and the
stopping distances after brake application were less than 5 feet.
Thus the total distances traveled were substantially less than those
of any of the other cars tested.

[[Page 25035]]

Table 3.1.2-2: Total distance traveled (feet) by various vehicles after
simulated worst-case cruise control-induced acceleration lasting two
seconds, followed by brake pedal application. Data shown are the highest
values measured in the Series 6 tests described in Appendix E.
Experimental variation accounts for longer stops at higher pedal forces
in some runs.
------------------------------------------------------------------------
Total distance
traveled (feet) for
given brake-pedal
Make Force
-----------------------
60# 100# 150#
------------------------------------------------------------------------
Audi 5000, 1982................................. 17.1 14.2 16.4
Audi 5000, 1984................................. 18.6 13.9 12.5
Buick Electra, 1986............................. 27.3 31.7 26.9
Cadillac DeVille, 1985.......................... 42.1 38.2 37.1
Chevrolet Camaro, 1984.......................... 78.8 74.4 50.1
Chrysler New Yorker \72\........................ N/A N/A N/A
Mercedes 300E, 1988............................. 22.3 25.8 23.7
Mercury Marquis, 1984........................... 31.5 32.5 29.7
Nissan 300ZX.................................... 45.7 * *
Toyota Cressida, 1982........................... 29.4 25.5 26.4
------------------------------------------------------------------------
* Brake pedal forces greater than 60 pounds caused wheel lockup.

Based on this testing, the Report concludes:
``For SAIs where a cruise control failure has been alleged, but
the brake system was found to be in good working order, and the
vehicle traveled a substantially greater distance than those shown
in Table 3.1.2-2, it must be concluded that either the brake pedal
was not appropriately applied or that cruise control failure was not
a factor in the SAI.'' \73\
---------------------------------------------------------------------------

\73\ Pollard and Sussman, 11.
---------------------------------------------------------------------------

4.3.4 Mr. Sero's Testing

Modifying a stationary vehicle's cruise control so that it may
be energized and the throttle opened while the engine is running (as
in the VRTC tests) is not unknown to Mr. Sero. In a segment entitled
``Not So Fast,'' broadcast by NBC News ``Dateline'' program on
February 10, 1999,\74\ portions of a video tape identified by
``Dateline'' as ``a demonstration, played in an Ohio court'' \75\
were shown. The video tape, in its entirety, was recently obtained
by ODI and placed in the public file for this petition. A little
over ten minutes in length, it shows a MY 1987 Ford Crown Victoria
(VIN 2FABP74F4HX183403, built on March 12, 1987 at the St. Thomas,
Canada, assembly plant) which, according to the ``Dateline'' host,
``Sero [had] deliberately rewired, adding switches an assistant
could flip to produce the two wiring problems.''
---------------------------------------------------------------------------

\74\ This segment focused on the issue of sudden acceleration
and discussed the Sero theory at length. Its senior producer was
Allan Maraynes, who had produced the ``60 Minutes'' Audi sudden
acceleration story (Footnote 11) 13 years earlier.
\75\ Manigualt v. Ford, Court of Common Pleas for Cuyahoga
County, Ohio, case number 286862. Originally, the jury found Ford
was not liable. In April, 1998, the jury's verdict was overturned by
a lower court judge (but not the original trial judge). On June 17,
1999 the Ohio Eighth District Court of Appeals reversed the second
judge's decision and mandated that the original verdict be enforced.
Manigualt then appealed to the Ohio Supreme court which, on October
27, 1999, declined to hear the case.
---------------------------------------------------------------------------

The video tape, including those portions shown by ``Dateline,''
shows the Crown Victoria being ``tested'' a number of times. All
occur in the same section of a dead-end two lane road in
Pennsylvania. At 5:40 into the video, the driver (``assistant'') can
be heard describing the test procedure:
``What I'm going to do is, the car is stopped, the engine is
off, and the gearshift is in Park. I'm going to put my foot on the
brake, start the engine, drop the gearshift into drive, and when I
release the brake, I'm going to throw a switch [installed as part of
the test modifications] and this switch will automatically engage
the cruise control so you would get maximum acceleration. My foot
will always be off the accelerator. I will leave it on maximum
acceleration until I reach the second cone and then I'll throw a
switch to disengage the accelerator and I will brake to bring the
vehicle to a stop.''
Earlier in the video (at 3:45) he says that ``throwing'' the
switch will ``short-out the cruise control.''
There are a number of troubling aspects to the video-taped
demonstration. First, according to the driver, when the switch is
``thrown,'' ``maximum acceleration'' will occur, presumably similar
to what would happen if the accelerator pedal had been floored.
However, at 6:32 the driver is clearly shown ``throwing'' the switch
yet the engine speed does not increase immediately--as would happen
if the gas pedal were pressed and held to the floor--but, instead,
it builds gradually. The reason for this is never clarified in the
video tape or by ``Dateline.'' The NHTSA Report, however, explains
why this happens:
``The credibility of cruise control faults as an explanation for
SAI is further reduced by the fact that in most designs, the
actuator [servo] requires a few seconds to open the throttle fully
and in some designs, can never reach or maintain the wide-open (WOT)
condition.'' \76\
---------------------------------------------------------------------------

\76\ Pollard and Sussman, 9.
---------------------------------------------------------------------------

Second, the driver's claim that they are demonstrating ``maximum
acceleration'' is misleading. ``Maximum acceleration'' only occurs
at WOT. The cruise control servo is mechanically limited so the
throttle will open no more than 80% of WOT, no matter if it's
operating normally or has been modified to demonstrate certain
failure modes (as in the VRTC and Sero tests).
Third, in most of the video taped test runs, the vehicle is
accelerating for a period between 5.5 and 7 seconds before the
brakes are applied. This delay time is completely inconsistent with
real-world driver behavior where reaction times of less than 2
seconds are the norm. While viewing the video tape, ODI observed
that, in the first two seconds after the switch had been ``thrown,''
the vehicle traveled less than a car length. Had the driver applied
the brake at that moment, the total travel distance would have been
much shorter--consistent with the VRTC testing results documented on
page E-50 of the NHTSA Report.
Fourth, the video tape never clarifies whether the MVDV had been
intentionally disabled. Based on the driver's stated operational
sequence (``I will leave it on maximum acceleration until I reach
the second cone and then I'll throw a switch to disengage the
accelerator and I will brake to bring the vehicle to a stop.''
[emphasis added]) it would appear it had not been. Otherwise, there
would have been no need to ``disengage the accelerator'' before
braking to a stop because the MVDV would have ``disengage[d] the
accelerator'' when the brakes were applied. By not disabling the
MVDV, the ``test'' gave the misleading impression that, should the
electrical dump switch (EDS) fail, nothing could be done--short of
turning off the engine--to isolate the throttle from the cruise
control servo.\77\
---------------------------------------------------------------------------

\77\ ``Dateline'' discusses and shows a MVDV. However, they
never demonstrate that the throttle will return to idle--even if the
servo solenoids have been inadvertently activated--simply by
pressing lightly on the brake pedal to open the MVDV.
---------------------------------------------------------------------------

The final, and most troubling, aspect of the video tape is that
there are no tests demonstrating the vehicle will stop with
relatively low brake pedal force even if the cruise control servo is
holding the throttle open as far as it can (80% of WOT). Instead,
``Dateline'' used portions of a video-taped Ford test. This video
tape, produced during the Manigault litigation, shows Ford testing a
Crown Victoria/Grand Marquis with the brakes applied while the
throttle is held at WOT. ``Dateline'' erroneously implies that the
Ford test represents what would happen if the cruise control servo
were holding the throttle open. Since the servo can only open the
throttle 80% of WOT, the vehicle would have accelerated slower and
stopped quicker with less pedal force (``pressure'') than
``Dateline'' implies, even assuming the MVDV did not disable the
cruise control. Mr. Sero, and ``Dateline,'' never address this
aspect of cruise control design. But, VRTC's testing did. The NHTSA
Report shows, on page E-50, that a virtually identical vehicle (the
1984 Mercury Grand Marquis) stopped after traveling a total of 31.5
feet by pressing on the brake pedal with 60 lb. of force even though
the servo was still holding the throttle open as far as it could.
According to NHTSA's Report:
For most vehicles tested [including the 1984 Mercury Grand
Marquis], the maximum accelerations produced by simulated cruise
control failures . . . were significantly less than those generated
by drivers pressing their gas pedals to the floor.'' \78\
---------------------------------------------------------------------------

\78\ Pollard and Sussman, 9.
---------------------------------------------------------------------------

The petitioner's allegation that ``NHTSA has not addressed the
fact that there is no true failsafe mechanism to overcome sudden
acceleration'' is simply wrong. The NHTSA

[[Page 25036]]

Study shows conclusively that, should a SAI be initiated by
simultaneous electrical and mechanical cruise control failures (a
failure mode which the Study found to be ``virtually impossible''),
the brakes will still stop the vehicle with a relatively low brake
pedal force, even if the MVDV were inoperative.

5.0 The Mountain Home SAI

In the petitioner's July 19, 1999 letter, he stated:
``I am the attorney for the family of two young boys who were in
the path of a 1988 Lincoln Town Car that suddenly accelerated in a
parking lot in Mountain Home, Arkansas on June 7, 1995. This event,
that resulted in the death of one of the boys and the amputation of
the other child's leg, occurred when the vehicle suddenly
accelerated from a stationary position, despite the fact the driver
had not touched the accelerator pedal. In conjunction with my
preparation of this case, I retained a professional engineer, Samuel
Sero of Pittsburgh, Pennsylvania, to determine the cause or causes
of this tragic event.\79\
---------------------------------------------------------------------------

\79\ McMath letter, 1.
---------------------------------------------------------------------------

To learn more about the petitioner's allegations, ODI gathered
information about the crash to determine whether it was consistent
with Mr. Sero's theory. It was not.
On May 14, 1988, a 1988 Lincoln Town Car, VIN 1LNBM81F9JY844065,
was built at Ford's Wixom, Michigan assembly plant. On May 25, 1988,
it was delivered to the Los Angeles International Airport branch of
Budget Rent-a-Car (BRC). Between May, 1988 and May, 1992, it
accumulated approximately 51,000 miles during its use by four
different owners (including BRC).\80\ On May 8, 1992, it was
purchased by Ms. Edith Theander for her personal use in, and around,
Mountain Home, Arkansas. At the time, it had 51,279 miles registered
on the odometer. According to Ms. Theander, she had all her service
work done by Maplewood Garage and never had a problem with the
cruise control. Maplewood Garage confirmed this and provided the
following service history:

\80\ During this time, the subject Town Car would have been
within the scope of the Updegrove study. The study contains no
information related to this vehicle's VIN, indicating it had not
been involved in a reported SAI between May 14, 1988 and November
23, 1992.
---------------------------------------------------------------------------

1. Check for P/S fluid leak--NPF on 3-4-93/mileage not on repair
order;
2. Air conditioner service--re-charge on 6-28-93 @ 53,695 miles;
3. Oil change and transmission service on 2-3-94 @ 54,942 miles;
and
4. Replace leaking power steering switch on 3-4-94 @ 54,992
miles.

On January 24, 1995, Ms. Theander traded in the Town Car at
McDermott Pontiac-Buick-GMC in Mountain Home. The Town Car had now
gone a total of 56,721 miles.
McDermott placed the car for sale and demonstrated it to
prospective buyers. On March 7, 1995, William and Marlene Fett
purchased the Town Car. At the time it had registered 57,099 miles.
Between March 7 and June 7, 1995, the Fetts experienced no
cruise control related problems with the Town Car.\81\
---------------------------------------------------------------------------

\81\ Chapman v. Fett. Marlene Fett deposition Tr. 17-18 and
William Fett deposition Tr. 27.
---------------------------------------------------------------------------

On June 7, 1995 at about 8:00 PM in Mountain Home, Arkansas, 61
year-old Marlene Fett stopped at the Wal-Mart briefly. After
returning to her parked car, she backed out of the parking space
\82\ and then stopped as though she was shifting into ``Drive.'' The
car suddenly accelerated forward through the parking lot. Witnesses,
startled by the sound of the high-revving engine and the vehicle's
seemingly inappropriate parking lot speed, watched helplessly as the
Town Car traveled about 160 feet before striking a group of vending
machines along the right front wall of the store. It then struck a
small carousel after traveling an additional 13 feet. After striking
the carousel, it finally came to a stop after traveling another 45
feet (approximately).
---------------------------------------------------------------------------

\82\ Mrs. Fett claimed later, during her March 10, 1999
deposition, that she ``drove out'' of the parking space rather than
backed out (Tr. 32, line 24). However, an eyewitness claims that
Mrs. Fett backed out of the space and ``after she stopped, her car .
. . took off like a rocket'' (R. Graves deposition Tr. 7).
---------------------------------------------------------------------------

Riding the carousel was Jonathan Chapman, age two years, nine
months. His six month old brother, Nathaniel, was in a child safety
seat nearby. Both were struck by the Town Car. As a result,
Nathaniel was fatally injured and Jonathan's right foot later had to
be amputated due to the severity of its injury.
According to the Mountain Home Police report, and confirmed by
ODI in a subsequent interview with its author, Mrs. Fett said that
``either the accelerator on her vehicle stuck or her foot got wedged
and stuck on the accelerator.'' According to the officer, Mrs. Fett
was quite upset and could not clearly remember what had happened.
Subsequently, while being deposed in this case on March 10, 1999,
Mrs. Fett claimed that the vehicle continued to accelerate even
though she ``was pushing the brake [pedal] as hard as [she] could.''
\83\
---------------------------------------------------------------------------

\83\ Chapman v. Fett. Marlene Fett deposition Tr. 38.
---------------------------------------------------------------------------

Immediately after the crash, the car was impounded and towed to
Norcross Ford in Mountain Home. The following day it was inspected
by the Service Manager and a mechanic for any mechanical anomaly
that could explain the occurrence. None was found.
Subsequently, the Chapmans retained attorney Sandy McMath (the
petitioner). On June 27, 1997, the Chapmans filed suit. Initially,
the named defendants were Marlene Fett and Wal-Mart, Inc. On March
16, 1998, the complaint was amended to include defendant Ford Motor
Company. In April, 1999, the Fetts' automobile liability carrier,
Farm Bureau Insurance, settled for $50,000.00 with the Chapmans.
The vehicle, which sustained damage to the left fender, doors,
and quarter panel, was declared a total loss. The salvage was sold
to Lynn's Auto, Inc. of Salem, Arkansas on June 19, 1995. On October
23, 1995, it was purchased by Garold Blair, also of Salem. Mr. Blair
then repaired the vehicle himself by installing a used fender and
straightening the bumpers, doors, and quarter panel. According to
Mr. Blair, there was no damage to the interior (including the MVDV
and mounting bracket) and no mechanical repairs were needed. He
claims the vehicle--and its cruise control--has performed flawlessly
during the 40,645 miles he and his wife have driven it. So well, in
fact, that when Mr. McMath offered to buy the Town Car last summer,
Mr. Blair refused to sell it.
ODI notes there are at least three aspects of the Mountain Home
SAI that undermine the petitioner's theory that a cruise control
malfunction was responsible for its occurrence. They are: total
travel distance, cruise control dump valve operation, and cruise
control type.

5.1 Total Travel Distance

The 1988 Town Car involved in the Mountain Home SAI is virtually
identical, for purposes of comparing relative acceleration and
braking performance, with the 1984 Mercury Grand Marquis evaluated
in the VRTC testing documented in Appendix E of the Report. Both are
``Panther platform'' vehicles \84\ equipped with a 302 cu.in. V8
engine. Both are rear wheel drive and have identical braking
systems. The Mercury weighed about 3,760 lb. vs. 4,090 lb. for the
Lincoln. Both have electro-vacuum cruise controls which cannot open
the throttle more than 80% of WOT. Given these substantially similar
specifications, it is reasonable to assume that VRTC's acceleration
and braking data for the 1984 Mercury Grand Marquis apply to the
1988 Town Car.
---------------------------------------------------------------------------

\84\ Introduced in 1979 (and currently in production), the
``Panther Platform'' includes Ford Crown Victoria, Mercury Grand
Marquis, and Lincoln Town Car models. All are equipped with a front-
mounted V-8 engine and rear wheel drive.
---------------------------------------------------------------------------

While stationary, with the engine running, a worst-case cruise
control failure was induced in the Grand Marquis. The vehicle then
accelerated with the throttle at 80% of WOT. Two seconds after
inducing the failure, the brake pedal was pressed with 60 pounds of
force and held until the vehicle stopped. Throughout this sequence,
the throttle remained open. For the Grand Marquis, the total
distance traveled was 31.5 feet. This testing demonstrates that a
driver would be able to stop a Ford Panther Platform vehicle in
little more than 30 feet with relatively low brake pedal force, even
if the throttle is held open by the cruise control servo.
In the June 7, 1995 incident, the 1988 Lincoln Town Car moved
forward a total distance of more than 200 feet.
According to the NHTSA Report,
``For the numerous SAIs where cruise control failure has been
alleged, but the braking system is found to be in good working
order, and the vehicle traveled [a] substantially greater distance
than [31.5 feet], it must be concluded that either the brake pedal
was not appropriately applied or that cruise control failure was not
a factor in the SAI.''

[[Page 25037]]

5.2 Cruise Control Mechanical Vacuum Dump Valve (MVDV) Operation

As described earlier in Section 4.3.1, as soon as the brakes
were applied, a functional MVDV would have immediately depleted
servo vacuum and allowed the engine to return to idle in the event a
cruise control electrical malfunction occurred. There is no evidence
that the MVDV has ever malfunctioned during the subject vehicle's
life. ODI examined the MVDV and its mounting bracket and found both
to be undamaged and adjustment of the MVDV was found to be within
Ford's recommended specification.
Mr. Sero has alleged that certain drivers are unable to exert
enough force on the brake pedal to activate the MVDV.\85\ This
assertion is plainly wrong. For example, the subject Town Car's MVDV
opens (vents) whenever the brake pedal is depressed \3/4\ inch,
which occurs at about 3.5 lb. of force with the power brakes
functioning and 12 lb. without. To put those pedal forces in
perspective, ninety-nine percent of the adult population in the
United States is able to exert at least 60 lb. of force on the brake
pedal.
---------------------------------------------------------------------------

\85\ Jarvis v. Ford, Daubert Hearing Tr. 85. ``You can't release
it [the MVDV] because you can't move the [brake] pedal enough.''
---------------------------------------------------------------------------

5.3 Cruise Control Type

Mr. Sero's theory is based on his observation that ``voltage is
supplied to the servo the moment the ignition is turned on'' and
``under this condition, all that is necessary to induce wide open
[sic] throttle is a completion of a circuit to the servo.'' \86\
However, a failure consistent with the petitioner's multiple servo
solenoid ground fault theory could not have contributed to the June
7, 1995 SAI in Mountain Home, Arkansas because the MY 1988 Town Car
was equipped with an ``integrated'' cruise control system. As
described in Section 4.1.3 of this document, in certain Ford
vehicles beginning with MY 1986, the control-logic function has been
integrated into the electronic engine control (EEC) module. Unlike
Ford's ``stand-alone system,'' the integrated system does not allow
full power to reach the servo solenoids unless appropriately
signaled by the EEC even in the unlikely event that multiple servo
solenoid ground faults occur--assuming the system's installation is
consistent with Ford's design.
---------------------------------------------------------------------------

\86\ McMath letter, 1.
---------------------------------------------------------------------------

6.0 Conclusions

The petitioner, some plaintiff consultants, and a few in the
news media have alleged that ``new'' information, developed since
NHTSA's Study was conducted, justifies its reopening to ascertain
the cause or causes of sudden acceleration. They view the Study's
findings as flawed because it allegedly did not consider the
possibility or consequences of cruise control failure modes
involving inadvertent solenoid activation. However, the Study did
consider these issues. Moreover, the petitioner's theory is
contingent upon the occurrence of simultaneous, undetectable
mechanical and electrical system failures. Absent these failures, no
inadvertent servo solenoid activation could occur which would result
in an unintended increase in engine power. The mere fact that some
vehicles have been built with cruise control systems that may allow
inadvertent servo solenoid activation does not sustain a conclusion
that such an activation could lead to a SAI. Voluminous data
indicates it does not. Indeed, the fact that the petitioner (and
others) have never produced credible evidence that simultaneous,
undetectable electrical and mechanical cruise control system
failures have resulted in a single SAI--let alone frequently enough
to justify a safety recall--supports the Study's original finding
that ``the occurrence of such simultaneous, undetectable failures is
virtually impossible.''

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[FR Doc. 00-10624 Filed 4-27-00; 8:45 am]
BILLING CODE 4510-59-P