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


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration


Denial of Motor Vehicle Defect Petition, DP99-004

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

ACTION: Denial of petition for a defect investigation.

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

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

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

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

Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.

Appendix

Petition ANALYSIS--DP99-004

1.0 Introduction

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

[[Page 25027]]

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

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

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

2.0 The Issue of Sudden Acceleration

2.1 ``Sudden Acceleration (SA)''

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

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

[[Page 25028]]

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

3.1 Electrical ``Power''

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

3.2 Automotive Electronics

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

[[Page 25029]]

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

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

4.0 The Petitioner's Allegations

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

4.1 The Petitioner's First Allegation

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

4.1.1 The Cruise Control ``Bypass'' Theory

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

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

[[Page 25030]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 25031]]

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

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

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

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

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

4.2 The Petitioner's Second Allegation

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

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

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

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

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

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

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

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

[[Page 25032]]

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

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

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

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

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

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

4.2.2 Updegrove and NHTSA SAI Data

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

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

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

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

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

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

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

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


[[Page 25033]]

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

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

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

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

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

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

4.3 The Petitioner's Third Allegation

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

4.3.1 The Mechanical Vacuum Dump Valve (MVDV)

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

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

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

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

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

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

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

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

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

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

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

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

    ``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\
---------------------------------------------------------------------------

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

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

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

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

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

[[Page 25034]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4.3.3 The VRTC Braking Tests

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

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

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

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

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

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

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

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

[[Page 25035]]



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

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

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

4.3.4 Mr. Sero's Testing

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

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

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

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

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

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

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

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

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

[[Page 25036]]

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

5.0 The Mountain Home SAI

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

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

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

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

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

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

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

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

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

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

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

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

5.1 Total Travel Distance

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

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

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


[[Page 25037]]



5.2 Cruise Control Mechanical Vacuum Dump Valve (MVDV) Operation

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

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

5.3 Cruise Control Type

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

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

6.0 Conclusions

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

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January 1989.

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