25026 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

1Chapman v. Fett et al., Civ-97–144, C.C. of

Baxter County, Arkansas. No trial date has been set

yet.

ATTACHMENT 3.—EXPOSURE COMPLIANT RATE (THE NUMBER OF COMPLAINTS PER 100K VEHICLES PER YEAR) OF AN

ALLEGED THERMAL EVENT OCCURRED IN THE STEERING COLUMN AND/OR IGNITION SWITCH AREAS—Continued

Vehicle

make Vehicle line MY 91 MY 92 MY 93 MY 94 MY 95 MY 96 MY 97 MY 98 MY 99 MY2000

Plymouth .... Sundance ... 0.00 0.37 0.18 0.00 .................. .................. .................. .................. .................. ....................

Dodge ......... Shadow ....... 0.00 0.00 0.00 0.00 .................. .................. .................. .................. .................. ....................

Dodge ......... Viper ........... .................. 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

Plymouth .... Prowler ....... .................. .................. .................. .................. .................. .................. 0.00 n/a 0.00 0.00

Plymouth .... Neon ........... .................. .................. .................. .................. n/a n/a n/a n/a n/a n/a

Dodge ......... Neon ........... .................. .................. .................. .................. n/a n/a n/a n/a n/a n/a

Plymouth .... Breeze ........ .................. .................. .................. .................. .................. 0.00 0.00 n/a n/a n/a

Dodge ......... Stratus ........ .................. .................. .................. .................. 0.00 0.00 0.00 n/a n/a n/a

Chrysler ...... Cirrus .......... .................. .................. .................. .................. 0.60 0.00 0.00 n/a n/a n/a

Chrysler ...... Sebring

Convertible.

.................. .................. .................. .................. .................. .................. 0.00 0.00 0.00 0.00

Dodge ......... Intrepid ........ .................. .................. 0.00 0.00 0.00 0.00 0.00 n/a n/a n/a

Eagle .......... Vision .......... .................. .................. 0.00 0.00 0.00 0.00 0.00 n/a n/a n/a

Chrysler ...... Concorde,

LHS, NY,

300M.

0.00 0.00 0.28 0.18 0.00 0.00 0.00 n/a n/a n/a

Plymouth .... Voyager ...... 0.07 0.06 0.00 0.00 0.00 0.12 0.00 0.00 0.00 0.00

Dodge ......... Caravan ...... 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

Chrysler ...... Town and

Country.

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

Dodge ......... Ram Wagon 0.56 0.52 0.00 0.00 0.00 0.27 0.00 n/a n/a n/a

Dodge ......... Dakota ........ 0.00 0.19 0.00 0.15 0.00 0.00 0.00 0.00 0.00 n/a

Dodge ......... Ram Pickup 0.12 0.32 0.00 1.68 1.26 0.06 0.00 0.00 0.00 n/a

Dodge ......... Durango ...... .................. .................. .................. .................. .................. .................. .................. 0.00 0.00 n/a

Jeep ........... Commanche n/a n/a .................. .................. .................. .................. .................. .................. .................. ....................

Jeep ........... Wrangler ..... n/a n/a n/a n/a n/a n/a 0.00 0.00 0.00 0.00

Jeep ........... Cherokee .... n/a n/a n/a n/a n/a 0.25 n/a n/a n/a n/a

Jeep ........... Grand Cherokee................... .................. 0.06 0.00 0.00 0.00 0.00 0.00 0.00 0.00

‘n/a’—model/model year vehicle not equipped with an ignition switch characterized by having a lighted plastic ring around the key cylinder assembly.

Empty cell block—model/model year vehicle not produced.

[FR Doc. 00–10630 Filed 4–27–00; 8:45 am]

BILLING CODE 4910–59–M

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.

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

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:

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25027

2The second set of exhibits were provided by the

petitioner, who characterized them as ‘‘corrected.’’

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.

5 Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993).

6U.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.

7Schmidt, Richard A. ‘‘Unintended Acceleration:

A Review of Human Factors Contributions,’’ Human

Factors Society, Inc., 1989, 31(3), 345–364.

8The subject vehicle was owned by William and

Marlene Fett. Mrs. Fett was the involved driver.

9 John Pollard and E. Donald Sussman, An

Examination of Sudden Acceleration (Cambridge,

MA.: NHTSA, 1989, DOT-HS–807–367), v.

10The sudden acceleration report rate for 1978

through 1987 Audi 5000’s was 586/100,000.

(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

∑ 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 pedalrelated 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.

• Reviewed a U.S. Supreme Court case

concerning the admissibility of certain

scientific evidence.5

• 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

• Reviewed an essay concerning the role of

human factors in sudden acceleration

incidents.7

• 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

• 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.

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

25028 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

11Both 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.

12Transport 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.

13 In some instances, the testing was performed by

NHTSA’s Vehicle Research and Test Center (VRTC).

14The 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.

15Pollard and Sussman, 49.

16McGraw-Hill, Encyclopedia of Electronics and

Computers, 1988, 128.

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

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.).

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 forcedeflection (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 electromechanical 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 invehicle 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 radiofrequency 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

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 (nongrounded) side of the circuit. ‘‘Groundswitched’’ 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.

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

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25029

17The 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.

18This 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.

19Letter from Sandy S. McMath to NHTSA, July

19, 1999, 6.

20See Section 5.0 for more details about this

incident.

21Mr. 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.

22See Manigault and Jarvis.

most all were of ‘‘solid-state’’ design.17 Solidstate 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.

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 (wideopen 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 predetermined 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).

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 factorydesigned 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

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:

‘‘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

25030 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

23McMath letter, 1.

24 Jarvis, May 18, 1999 Daubert Hearing Tr. 28.

25The Random House College Dictionary (New

York: Random House, Inc.), 1362.

26For 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.’’

27 Jarvis, Daubert Hearing Tr. 129.

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.’’

29 Jarvis, Daubert Hearing Tr. 66.

30McMath letter, 6.

31 Ibid., 2.

32Most SAI-involved drivers claim the vehicle

would not respond when the brakes were applied. 33Pollard and Sussman, viii.

the electronic control unit inducing an effect

similar to (a) or (b).’’ 23

Scenarios (a) and (b) involve multiple

‘‘hard’’ electrical faults while (c) relates to an

injected signal generated by strong electromagnetic 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

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 wellestablished propositions that are regarded as

reporting matters of actual fact.’’ 25

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:

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

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.

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

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.

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.

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

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 (‘‘standalone’’) 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

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25031

34 ‘‘Shift-lock’’ will be explained in Section 4.2.1.

35McMath letter, 6.

36Ford Motor Company, Profs Field Bulletin No.

92182DB60005, June 30, 1992.

37 June 22, 1999 deposition of Alan Updegrove in

Jarvis v. Ford, Tr. 149.

38NHTSA 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.

39NBC News, ‘‘Dateline NBC,’’ Not So Fast,

February 10, 1999.

40Schmidt, 345.

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.’’

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

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.

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:

‘‘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

25032 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

41 Ibid., 346–347.

42 Ibid., 363.

43Perel, M. (1983). Vehicle Familiarity and Safety

(Tech. Report DOT HS–806–509). Washington, DC:

U.S. Department of Transportation.

44National Highway Traffic Safety

Administration, Engineering Analysis Action

Report, EA78–110, August 5, 1986, 11.

45Ford Motor Co., Alleged Unintended

Acceleration Investigative Effort Summary, 1. 46For 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.

47The 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.

48 Ibid.

the accident occurs, bolstering their belief in

a mechanical cause.’’ 41

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

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% overinvolvement 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.

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

With the 1990 model year, Ford began

installing brake/start interlocks in the

Thunderbird/Cougar models. Unlike ‘‘shiftlocks’’—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 shiftlocks, 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 shiftlock 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

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 nonshift-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.

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

Models No shift-lock (Ford) No shift-lock (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

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25033

49Ford Motor Company, Profs Field Bulletin No.

92182DB60005, June 30, 1992.

50Pollard and Sussman, 49.

51 ‘‘Boosted’’ means power-assisted (i.e.,

‘‘power’’) brakes.

52Ford 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.

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

55 Ibid., 84.

56McMath letter, 4.

57Pollard and Sussman, page 9, third full

paragraph.

58The 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.’’

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

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

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 groundswitched, 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 (standalone) 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 selfcorrecting and would be easily detected

during a vehicle inspection.

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 oring 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 oring 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.

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

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

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:

‘‘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.’’ 56

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

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

25034 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

59Pollard and Sussman, Appendix H,

‘‘Introduction and Summary,’’ 1–4.

60For 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.’’

61McMath letter, 6.

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

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]

64 Ibid., 5.

65Pollard and Sussman, E–31.

66 Ibid., E–32.

67Pollard 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.’’

68The 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.

69Pollard 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.’’

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.

71Pollard and Sussman, 11.

72Because of its mechanical cruise control, the

Chrysler unit could not be connected to the

electrically operated test recorder. However, worstcase 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.

these general electrical failures, the NHTSA

Report also addressed the potential role of

the MVDV in SAIs by stating:

‘‘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

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 SAIinvolved vehicles that he inspected. 60

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

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

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

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

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

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 ‘‘worstcase’’ 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.

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

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25035

73Pollard and Sussman, 11.

74This 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.

75Manigualt 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.

76Pollard and Sussman, 9.

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.

78Pollard and Sussman, 9.

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.

Make

Total distance traveled (feet) for given

brake-pedal 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

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.’’

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

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

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

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

25036 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices

79McMath letter, 1.

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.

81Chapman v. Fett. Marlene Fett deposition Tr.

17–18 and William Fett deposition Tr. 27.

82Mrs. 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).

83Chapman v. Fett. Marlene Fett deposition Tr.

38.

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.

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

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:

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 PontiacBuick-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

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).

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

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.

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.’’

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Notices 25037

85 Jarvis v. Ford, Daubert Hearing Tr. 85. ‘‘You

can’t release it [the MVDV] because you can’t move

the [brake] pedal enough.’’

86McMath letter, 1.

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.

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.

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

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Docket No. MC–F–20966]

Global Passenger Services, L.L.C., et

al.—Control—Davis Bus Lines, Inc., et

al.

AGENCY: Surface Transportation Board.