The Toyota sudden acceleration litigation has focused public attention on the fact that many late model cars contain event data recorders (i.e., “black boxes) - devices that, under certain circumstances, record information about what happened in and around a vehicle in the moments before and during a crash. We are accustomed to hearing about the use of such devices in reconstructing airplane crashes, but the fact that many of us are driving around every day with these black boxes in our cars, “spying” on us as we drive to work, has come as a surprise to many.

Event data recorders (“EDR’s”) have been a hot button issue in automobile products liability cases for years. What we have recently been discovering, however, is that the use of EDR’s has now extended into dangerous roadway cases and even garden variety auto accident cases, not to mention criminal matters.

The following are some facts and considerations to keep in mind when deciding whether to seek EDR evidence and whether to cooperate with or oppose efforts by the other side to obtain such evidence... Click here to continue reading. 

We have litigated against Toyota many times. And this year, we have investigated numerous potential cases against Toyota involving sudden acceleration.

Our assessment – while there are a small number of good cases, it takes a lot of work to identify them. And the litigation itself over this issue is likely to be lengthy and hard-fought.

We have concluded that the key to identifying the good cases is by ruling out so-called “pedal error” – when the driver intended to push the brake pedal, but instead pushed the accelerator, and then panicked, resulting in a sudden and uncontrolled acceleration.

Toyota will focus on pedal error as its primary defense. The key to disproving it is showing the driver’s deliberate actions to try to stop the vehicle, ideally over a significant period of time. In other words, the driver did not panic, but took rational steps to try to avoid an accident.

Toyota vehicles equipped with an event data recorder – its “black box” – can theoretically provide information about the vehicle’s speed and whether the brakes were applied in the final seconds before collision. Yet this data is notoriously difficult to interpret and requires Toyota’s involvement to download.

In one case involving a fatality, it took three years to compel Toyota to download the black box data. They finally relented, but only after a U.S. Senator intervened and extracted a commitment from a Toyota executive during the recent Congressional hearings. Even then, the results were ambiguous at best.

Knowing what we know about Toyota’s approach to litigation, we do not expect them to roll over and settle many cases any time soon. Toyota will continue to focus on pedal error. Plaintiff’s lawyers handling these cases would be well-advised to do the same.

For more information on this issue, see Larry Booth’s article in the May 2010 issue of Plaintiff magazine. www.plaintiffmagazine.com