Accident & Injury Law in Texas

Toyota has for years blocked access to data stored in devices similar to airline “black boxes” that could explain crashes blamed on sudden unintended acceleration, according to an Associated Press review of lawsuits nationwide and interviews with auto crash experts.

The AP investigation found that Toyota has been inconsistent — and sometimes contradictory — in revealing what the devices record and don’t record, including critical data about whether the, brake or accelerator pedals were depressed at the time of a crash.

By contrast, most other automakers routinely allow more open access to information from their event data recorders.

The Associated Press also found that Toyota:

• Has frequently refused to provide key information sought by crash victims and survivors.
• Uses proprietary software in its recorders. Until this week, only a single laptop in the U.S. contained the software needed to read the data after a crash.
• Either settled or provided printouts with the key columns blank, when pressed to provide recorder information in some lawsuits.

Toyota’s “black box” information is emerging as a critical legal issue amid the recall of 8 million vehicles by the world’s largest automaker. The National Highway Traffic Safety Administration said this week that 52 people have died in crashes linked to accelerator problems, triggering an avalanche of lawsuits.

In addition, the number of post-repair complaints is rising. The government said Thursday that it has received more than 60 complaints from Toyota drivers who say their cars have sped up by themselves even after being fixed to correct the problem.

The highway safety agency said it is contacting every owner to learn more about the consumer reports. The complaints have not been independently verified.

When Toyota was asked by the Associated Press to explain what exactly its recorders collect, a company statement said Thursday that the devices record data from five seconds before until two seconds after an air bag is deployed in a crash.

The statement said information is captured about vehicle speed, the accelerator’s angle, gear shift position, whether the seat belt was used and the angle of the driver’s seat.

There was no initial mention of brakes a key point in the sudden acceleration problem. When the Associated Press went back to Toyota to ask specifically about brake information, Toyota responded that its recorders do record “data on the brake’s position and the antilock brake system.”

But that does not square with information that attorneys obtained in a deadly crash last year in Southlake, which is in the Dallas-Fort Worth area, and in a 2004 wreck in Indiana that killed an elderly woman.

In the Texas crash, where four people died when their 2008 Avalon ripped through a fence, hit a tree and flipped into an icy pond, a recorder readout obtained by police listed as “off” any information on acceleration or braking.

In the Indiana crash, 77-year-old Juanita Grossman told relatives before she died that she was practically standing with both feet on the brake pedal but could not-stop her 2003 Camry from slamming info a building. Records confirm that emergency personnel found Grossman with both feet on the brake pedal.

A Toyota representative told the family’s attorneys there was “no sensor that would have preserved information regarding the accelerator and brake positions at the time of impact,” according to a summary of the case provided by Safety Research & Strategies Inc., a Rehoboth, Mass. based company that does vehicle safety research for attorneys, engineers, government and others.

One attorney in the Texas case contends in court documents that Toyota may have de literately stopped allowing its recorders to collect critical information so the Japanese automaker would not be forced to reveal it in court cases.

“This goes directly to defendants’ notice of the problem and willingness to cover up the, problem,” said E. Todd Tracy, who had been suing automakers for 20 years.

Randy Roberts, an attorney for the driver in that case, said he was surprised at how little information the Avalon’s recorder contained.

“When I found out the Toyota black box was so uninformative, I was shocked,” Roberts said.

Toyota refused to comment on Tracy’s allegations because it is an ongoing legal matter but said the company does share recorder information with government regulators.

“Because the EDR system is an experimental device and is neither intended, nor reliable, for accident reconstruction, Toyota’s policy is to download data only at the direction of law enforcement, NHTSA or a court order,” the Toyota statement said.

In many cases, attorneys and crash experts say recorder data could help explain what happened in the moments before a crash by detailing the positions of the gas and brake pedals as well as the engine’s revolutions per minute.

Yet, some crash experts say Toyota shouldn’t bear too much criticism for failing to capture large amounts or specific kinds of data, because recorder systems were initially built for air bag deployment and not to reconstruct wrecks. They also vary widely from vehicle model to model, Haight said.

As of yesterday, first-time driver’s license applicants ages 18 to 24 will have to complete a six-hour driving education course to get a license.

Previously, those over the age of 18 could take the state’s written and driving tests through the Texas Department of Public Safety without classroom training. The new mandatory classes cost $30 to $50, and the schools must be approved by the Texas Education Agency.  Click here for information on the new mandatory classes, including a statewide, city-by-city list of those certified to offer the adult courses.

The course contains information on highway signs; Texas traffic laws; alcohol and drug awareness; and distractions, such as driving while talking on a cell phone. Those who complete the course won’t have to take the written exam but will have to pass the driving skills test.

DPS says 1.8 million original applicants between the ages of 18 and 24 applied for a license in 2008; however, it’s unclear how many were first-time applicants – a significant number may have been applicants moving to Texas from another state.

Officials didn’t know whether Texas is alone in mandating an adult driving education class — California, Florida and New York don’t, according to the Web sites of those states’ licensing departments.

The voluntary national program “Alive at 25″ is used in several states, including Colorado. That program seeks to educate teens and young adults about driving hazards they could face.

Defensive driving courses and drug and alcohol driving awareness programs don’t count toward the new requirement. The new law — passed during the 2009 legislative session — does not change the rules for 15- to 17-year-olds, who must take a driving education course that requires 32 hours of classroom time, seven hours of driving observation and seven hours of driving.

It also doesn’t affect drivers 18 to 24 who first were licensed in other states and are seeking a license in Texas.

According to a 2008 report by the National Highway Traf fic Safety Administration, younger drivers are less likely to buckle up and more likely to be distracted, speed and drive too fast for conditions. Nationally, the fatal collision rate for those 21 to 24 years old was 47.8 fatal crashes per 100,000 drivers; that figure drops to 32 for those ages 25 to 34, according to the report.

Driving education schools lobbied the Legislature to get the bill passed.  Driver education courses for teens can cost up to $450, and 15- to 17-year-olds can’t drive from midnight to 5 a.m. or have more than one nonfamily member in the car with them for a year after getting their licenses. More teens had been avoiding those rules — and the safe habits they were meant to instill–by waiting until they turned 18 to apply for a license.

Officials say an 18-year-old El Paso man, apparently angry about being asked to leave a gathering, drove his car into a crowd in a parking area. Two male teenagers were injured but are expected to recover.

The El Paso County sheriff’s office said Sunday that a 17-year-old was pinned under the car and a 16-year-old was struck and suffered broken leg.

Witnesses said the driver in the early Saturday incident had to be forced out of the car so the 17-year-old could be pulled out from under it. The 17-year-old suffered bruising and internal injuries.

The driver was jailed on two counts of aggravated assault with a deadly weapon.

A 53-year-old man was killed Sunday morning in a single-vehicle wreck on RM 620 near Comanche Trail, according to the Texas Department of Public Safety.

A dispatcher said Michael Bowen of Victoria was driving his 2009 Ford pickup south on RM 620 when, the truck left the road, struck a guardrail and rolled several times.

Bowen was pronounced dead at the scene.

His passenger, 36-year-old Brandon Carpenter of Liberty Hill, was taken to St. David’s Round Rock Medical Center, where he was reported to be in stable condition

A bicyclist was critically injured Monday morning in a crash on FM 620 at El Salido Parkway that left her pinned under an 18-wheeler.

The female cyclist was taken toga Round Rock hospital with a critical leg injury.

The woman and the 18-wheeler were at a stoplight in the southbound lanes of FM 620, facing the same direction. When the light turned green, the woman apparently veered right, and the 18-wheeler caught her bicycle and dragged her under a wheel.

“It was not a high-speed collision, but it was really traumatic because of the difference in the size, obviously,” said Warren Hassinger of the Austin-Travis County Emergency Medical Services. “At least one leg was badly crushed by the weight of the rig.”

He said the woman was undergoing surgery.

The American Academy of Pediatrics, the nation’s largest pediatricians group, is calling for sweeping changes in the way food is designed and labeled to minimize children’s chances for choking.

Choking kills more than 100 U.S. children 14 years old or younger each year, and thousands more — 15,000 in 2001 — are treated in emergency rooms. Food, including candy and gum, is among the leading culprits, along with items like coins and balloons. Of the 141 choking deaths in kids in 2006, 61 were food-related.

Surveillance systems lack detailed information about food choking incidents, which are thought to be un derreported but remain a significant and underappreciated problem, said Dr. Gary Smith, director of the Center for Injury Research and Policy at Nationwide Children’s Hospital in Columbus, Ohio.
Smith is lead author of a new policy report from the pediatrics academy that seeks to make choking prevention a priority for government and food makers. The report is to be released today in the journal Pediatrics.

Doctors say high-risk foods, including hot dogs, raw carrots and grapes, should be cut into pea-size pieces for small children to reduce chances of choking. Some say other risky foods, including hard candies, popcorn, peanuts and marshmallows, shouldn’t be given to young children at all.

Federal law requires choking warning labels on certain toys, including small balls, balloons and games with small parts. Unless food makers voluntarily put more warning labels on high-risk foods, there should be a similar mandate for food, the pediatrics academy says.

The group also urges the Food and Drug Administration to work with other government agencies to establish a nationwide food-related choking reporting system and to recall foods linked with choking.

The academy says the food industry should avoid shapes and sizes that pose choking risks.

Something as simple as making lollipops flat instead of round can make a big difference, said Bruce Silverglade, legal affairs director at the Center for Science in the Public Interest, which also has lobbied for more attention to choking prevention.

Several efforts to pass federal legislation for labels have failed in Congress.

Three Austin doctors were among 70 physicians disciplined earlier this month by the Texas Medical Board, including two who are on board-imposed-probation and no longer practice medicine — but could again someday.

Dr. Daniel J. Di Bona was already serving a 10-year probation stemming from a substance abuse order and problems practicing because of side effects of medication and numerous medical problems, the board said. Di Bona voluntarily ended his internal medicine practice in March 2008 to safeguard the public, the order said.

The board said that Di Bona is on disability and that he requested a voluntary suspension “in lieu of further disciplinary proceedings” and to preserve other work options.

The suspension stays in force until he can demonstrate to the board that he can practice safely.

Di Bona’s current problems are medical, and “he hopes to regain his health and practice again,” said his lawyer, Michael Sharp of Austin.

The board issued a public reprimand and $1,000 fine to Dr. Emily Jane Sandbach, who practiced internal medicine but is teaching college-level biology. Sandbach was under a five-year probationary order in connection with an episode of depression in 2004, the board said. She failed to meet all of the terms of her probation, prompting the order.

Sandbach did not return a call left at her college office.

The board also ordered family practice doctor Richard John Wiseman to take’ a medical record-keeping course and pay a $1,000 fine for prescribing and dispensing a compounded thyroid hormone to a patient without proper labeling, record-keeping or a pharmacy license.

“This situation was simply an instance of providing patients easier access to specifically formulated compounded hormone medications, which are not readily available at most pharmacies,” Wiseman’s lawyer, Tony Cobos, said. “In the vast majority of states, physicians can in fact dispense medications from their office. Unfortunately, Texas is more restrictive in that regard, and Dr. Wiseman chose to resolve it (the board’s case) voluntarily rather than to expend fees and resources.”

Hundreds of people taking the diabetes drug Avandia needlessly suffer heart attacks and heart failure each month, according to confidential government reports that recommend that the drug be removed from the market.

The reports, obtained by The New York Times, say that if every diabetic now taking Avandia were instead given a similar pill named Actos, about 500 heart attacks and 300 cases of heart failure would be averted every month because Avandia can hurt the heart.

Avandia, intended to treat type 2 diabetes, is known as rosiglitazone and was linked to 304 deaths during the third quarter of 2009.

“Rosiglitazone should be removed from the market,” one of the reports, written by Drs. David Graham and Kate Gelperin of the Food and Drug Administration, concludes. Both authors recommended that Avandia be withdrawn.

The internal FDA reports are part of a fierce debate within the agency over what to do about Avandia, manufactured by GlaxoSmithKline.

Some agency officials want the drug withdrawn because they believe there is a safer alternative; others insist that studies of the drug provide contradictory information and that Avandia should continue to be an option for doctors and patients.

The battle has been brewing for years but has been brought to a head by a fierce disagreement over a new clinical trial and a Senate investigation that concluded that GlaxoSmithKline should have warned patients earlier of the drug’s potential risks.

Avandia was once one of the biggest-selling drugs in the world. Driven in part by a multimillion-dollar advertising campaign, sales were $3.2 billion in 2006. But a 2007 study by a Cleveland Clinic cardiologist suggesting that the drug harmed the heart prompted the FDA to issue a warning, and sales plunged.

The bipartisan, multiyear Senate investigation — whose results are expected to be released publicly today but which werealso obtained by the Times — sharply criticizes GlaxoSmithKline, saying it failed to warn patients years earlier that Avandia was potentially deadly.

Police said Thursday that the pedestrian who was killed on the Interstate 35 frontage road near Farmer Lane on Tuesday has been identified as Christopher David Conklin, 37. Police said Conklin was trying to cross the southbound frontage road at 9:46 Am. when he was struck by a silver Kia. The driver did not stop. Police are still searching for that car.

Anyone with information about the incident is asked to call 974-8164. The death marks Austin’s third vehicle-related fatality this year.

Athletes, band members, cheerleaders and other students ages 14 to 18 who take part in strenuous sports can get a free heart screening Saturday at Heart Hospital of Austin, 3801 N. Lamar Blvd.

The screening, from 8 a.m. to noon, is sponsored by the hospital and Championship Hearts, a charity created by Austin Heart, the doctors’ group that founded the hospital.

Students will receive an echocardiogram, or ultrasound of the heart, and an electrocardiogram, or EKG, to detect hypertrophic cardiomyopathy, a thickening of the heart muscle and a leading cause of sudden death among athletes.  The tests also will detect ether conditions, including abnormal heart rhythms.

Volunteer cardiologists from Austin Heart, Children’s Cardiology Associates of Austin and Heart & Vascular of Central Texas will be on hand.

Although there is no charge, a $15 donation is suggested. Registration will be in the hospital lobby. For more information, call 340-7313.