Shifting Out of Park

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Author: Kevin M. McDonald
ISBN-10: 1-933264-16-0
ISBN-13: 978-1-933264-16-5
Copyright Date Ed: September 1, 2006
Pages: 336 pages
Binding Information: Softbound
Size: 6 x 9 Inches (US)

Shifting Out of Park: Moving Auto Safety from Recalls to Reason is an in-depth look at the automobile recall process. Vehicle safety and reliability is considered to be better than it has ever been, yet the National Highway Traffic Safety Administration (NHTSA) continues to issue as many as 30 million vehicle recalls per year. A paradox perhaps. This book discusses the history of the recall process and the reasons NHTSA devotes a high percentage of its attention to this matter, with more vehicles recalled than sold each year. Yet it administers this program in a costly and rather ineffective manner for all parties involved. First of all, compliance is difficult to enforce since up to a quarter of the recall notices, on vehicles, are not attended to by the owners. Second, the cost of recalls is very high in terms of cost per vehicle. NHTSA estimates that recalls cost automakers about $100 per vehicle per recall. But that’s only part of the costs, namely, parts and labor. This estimate fails to consider costs such as engineering, tooling, and producing the replacement parts. Worse, it ignores indirect costs, which dwarf direct costs and include the loss of market capitalization, market share, and brand damage as a result of a recall. Third, there is a cost to those who do take their vehicles in to fix the recall. Having to fix the recall causes extra risk of accidents due to additional travel, loss of time and productivity due to bringing the vehicle to the dealer, and cost of fuel needed to make the additional trips.

It is possible that the recalls may risk more lives than they save. It is estimated that the additional travel, caused by owners fixing the recalls, causes three to four deaths a year, let alone many injury and non-injury causing accidents. The program is expensive in more ways than just monetarily, and the question of whether or not the safety benefits of the recall program outweigh the costs has been asked, but remains unanswered. The Federal Government refuses to study the issue and claims that the small number of actual facts and the large number of unknown factors make it next to impossible to evaluate the program.

With this book Dr. Kevin McDonald evaluates the recall process and starts a discussion on how it might be changed for the better. He discusses the three components of traffic safety in order of importance and how they contribute to automobile accidents: driver safety, roadway safety, and vehicle safety. He also discusses automobile regulation and the three steps that must occur for regulation to take place: public awareness and demand for action, legislation, and continuing administration. He unravels the legislation and litigation that started in 1966 with the creation of NHTSA and continues today, including an exhaustive analysis of the TREAD Act, passed in the wake of the Ford-Firestone recall. Separate chapters are devoted to how the courts have handled recall orders and the recent trend to have courts, not NHTSA, order recalls and how they affect the recall process. Dr. McDonald then compares the current American recall process and its history with the recall processes of several foreign countries with excellent auto safety histories. He gives suggestions for improvement that will allow the recall process to save money and better serve the American public. The book is clear and to the point and will serve as a descriptive resource for all parties, from judges and lawyers to auto designers and mechanics to concerned citizens, interested in traffic safety in America and the auto recall process.

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Topics Include:

Overview of the recall process
Research in auto and traffic safety
Human factors in auto and traffic safety
Regulation of the recall
Legislation of the recall
Litigation of the recall
Judicial review of the recall
Transportation Recall Enhancement, Accountability and Documentation ("TREAD") Act
Comparisons of NHTSA with other American agencies such as EPA, CPSC, FDA and USDA
Comparison of US regulations with regulations in Australia, Canada, and Germany
Rethinking the recall process - suggestions for improvement

Chapter 1: Introduction
1.1 Record Recalls
1.2 Unclear Causes
1.3 Clear Effects
1.4 Overview

Chapter 2: Who’s to Blame? A Reality Check
2.1 A Global Epidemic
2.2 An American Epidemic
2.3 From Causes to Crashes: Clarifying Important Concepts
2.4 A Word about Research
A. Indiana study
B. 100-Car Naturalistic Driving Study
2.5 Human Factors
A. Speedsters and drinkers
B. Hang up the phone—and other distractions
C. Teenage wasteland
2.6 The Regulatory Landscape
2.7 Enter the Lawyers
2.8 Conclusion

Chapter 3: Regulating the Recall
3.1 Nader’s Raiders: The End of the Road for Detroit
3.2 The Safety Act
3.3 The Alphabet Soup Years: 1966–1974
3.4 Time to Shift Gears: 1974
3.5 Three Free R’s: Repair, Replace, Repurchase
3.6 It’s in the (First-Class) Mail
3.7 See You in Court
3.8 Summary of the 1974 Amendments
3.9 ODI
3.10 Oversee Recalls

Chapter 4: Litigating the Recall, Part I
4.1 Introduction
4.2 Safety Act’s Definition
4.3 Wheels
4.4 Engine Mounts
4.5 Pitman Arms
4.6 Quadrajet Carburetors
4.7 Seat Back Bracket
4.8 Windshield Wipers
4.9 Rust
4.10 X-Cars
4.11 Flashers
4.12 Seat Belt Anchorages
4.13 Impact on Academics: A Word on Ossification
4.14 Practical Impact on Manufacturers
4.15 Impact on Safety Act
4.16 Summary

Chapter 5: Legislating the Recall: TREAD
5.1 Background
5.2 Congressional Action
5.3 Impact of the Ford-Firestone Recall
A. Financial impact

B. Federal criminal indictments
C. State investigations
D. International consequences
E. Severed relations
F. Summary
5.4 TREAD
A. Foreign recalls and safety campaigns
B. Early warning reporting
C. Interpretations of Final Rule
5.5 Reporting on Sale or Lease of Defective or Non-compliant Tire
5.6 Accelerated Recall Remedy
5.7 Increased Penalties
A. Civil penalties
B. Criminal penalties
5.8 Postscript and Portents

Chapter 6: Litigating the Recall, Part II: Undermining NHTSA’s Recall Authority
6.1 Preemption 101
A. The doctrine of express preemption
B. The doctrine of implied preemption
C. The doctrine of conflict preemption
6.2 National Traffic and Motor Vehicle Safety Act
A. Notification and remedy duty
B. Preemption and saving clauses
6.3 NHTSA Advisory Opinions on Safety Act Preemption
6.4 Cases Deciding the Preemptive Effect of the Safety Act’s Recall Provisions
A. Federal court cases
B. State court cases
6.5 Analysis
A. Express preemption of automotive recalls
B. Implied preemption of automotive recalls
C. Conflict preemption of automotive recalls
6.6 Conclusion

Chapter 7: Learning From Ourselves … and Others
Part One
7.1 EPA
A. Reporting requirements
B. Recall remedy
C. Recall monitoring and performance
D. Civil penalties
E. Preemption
7.2 CARB
7.3 CPSC
A. Reporting requirements
B. Recall remedy
C. Public notification and remedy campaign
D. Penalties
7.4 FDA and USDA
A. Reporting and recall requirements
B. Public notification and remedy campaign
C. Recall monitoring and performance
D. Summary
Part Two
7.5 Australia
A. Reporting requirements
B. Recall remedy and monitoring
7.6 Germany
A. Reporting requirements
B. Recall remedy
C. Recall monitoring and performance
7.7 Canada
A. Definition of safety-related defect
B. Reporting requirements
C. Civil penalties

Chapter 8: Recall the Recall
8.1 Rethinking the Recall
8.2 Manufacturers: Fight for Your Right!
8.3 Stop Bullshitting—Focus on the Driver, Not the Car
8.4 Let’s Talk About Cost
A. The need for cost-benefit in recalls
B. How to conduct a cost-benefit analysis in recalls
8.5 Increase the Recall Response Rates
A. Speak (plain) English
B. Hold out the cash carrot
C. Amend the National Driver Register
D. Deal with dealers

E. Hold insurers accountable

F. Other ways to increase response rates
8.6 Other Changes
A. Defend the territory
B. Allow for flexible solutions
C. Plugging gaps in Safety Act for used cars
8.7 Summary

SciTech Book Reviews

McDonald (assistant general counsel for Volkswagen of America, Inc.) describes and criticizes the development of automobile product safety law in the US from the 1966 creation of what would become the National Highway Traffic Safety Administration NHTSA onward. He argues that the system leads to far too many vehicle manufacturer recalls without any tangible benefit in safety. He explains this as being due to judicial misinterpretation of the statutes governing recalls, the use of outdated recall processes resulting in lower owner response rates, and failure to hold vehicle owners responsible for failing to attend to recall repairs. He proposes reducing reporting requirements mandated by the Transportation Recall Enhancement, Accountability, and Documentation Act of 2001, increasing penalties on drivers who fail to tender vehicles for recall repair, and limiting NHTSA investigation of defects only to those that truly present an "unreasonable risk to motor safety," a legal standard he suggests has been made meaningless by the courts and the NHTSA over the years.

"For The Defense" journal of DRI - The Voice for the Defense

Summarized review: Shifting Out of Park focuses on automobile safety, particularly as it has been regulated by NHTSA, the federal safety agency charged with promulgating motor vehicle safety standards, conducting defect investigations, ordering or overseeing "defect" recall campaigns, dispensing consumer information, and performing or promoting research into safety issues of the future. Most lawyers find the regulatory labyrinth vexing or daunting, but Mr. McDonald demystifies the agencys process so clearly, it seems as if the reader is a ringside spectator. The beauty is in the lucidly presented details. Chapter 2, for example, offers a "big picture" of the really influencing factors in the universe of vehicle crashes. (Hint: vehicle defects play only a small role.) Speeding, alcohol, and driver distraction are the major causes. Chapter 3 gives a fast-paced history of the regulatory recall process. Chapter 4 reviews the most important court decisions defining the circumstances under which recalls must be conducted. Chapter 5 parses the regulatory regime installed as a result of the TREAD act of 2000 that followed the Ford/Firestone brouhaha. Chapter 6 reviews the law of preemption, expressed and implied. Chapter 7 examines how other federal agencies and some foreign countries govern their recall processes. There are lessons to be learned. Chapter 8 summarizes major points and offers suggestions for improvement of NHTSAs governance of recalls. All defense counsel should be interested in the books discussion of crash causation. The relevance of the book to class action lawyers is evident. Further, as educated professionals, we should be fully informed on what really happens on the nations highways and what actually traffics behind the closed doors of the safety agency. As responsible citizens and as skilled advocates, we ought to be in a position to assess if anything is wrong with a regulatory process we pay for and then help find way to fix it. Perhaps that is the most compelling reason for buying and devouring this book.