WEST VIRGINIA RECORD

CHARLESTON – Three West Virginia citizens claim the engines in their Toyotas are potentially life-threatening.

In a putative class action complaint filed Nov. 13 in U.S. District Court, Michael Graves, Michael C. Graves and Jeff Mullins claim the engines in their Toyotas may accelerate without their stepping on the gas pedal.

The problem exists in the vehicles' electronic throttle control system known as the ETCS-I, according to the complaint.

"Vehicles equipped with ETCS-I have a dangerous propensity to suddenly accelerate without driver input and against the intentions of the driver," the suit states. "This increased propensity for runaway acceleration stems in part from the ETCS-I's vulnerability to electronic confusion in the ETCS-I sensors and electronics processors."

On Tuesday, Toyota said it would halt sales of eight of its top-selling models to fix gas pedals that could stick. Last week, Toyota issued recalls for the same eight models. Also, Toyota is also stopping work at six North American assembly plants starting Feb. 1.

Because of their vehicles' propensity to accelerate and their associated fear, the plaintiffs -- Michael Graves, who owns a 2007 Toyota FJ Cruiser; Michael C. Graves, who owns a 2007 Toyota FJ Cruiser; and Mullins, who owns a 2007 Toyota Highlander -- say they have been deprived of their vehicles' full use and benefits.

"Runaway acceleration events almost always begin suddenly and without warning; the throttle opens so rapidly it is wide open before the driver has time to react; the automobile continues out of control despite desperate braking efforts by the driver; and unless the driver manages to disengage the engine quickly, the likelihood of a catastrophic outcome is great," the suit states. "Consequently, manufacturers must provide an electronic or mechanical failsafe to allow the driver to return the vehicle safely under control when faced with such an emergency. Toyota has failed to provide such failsafe."

Reports of unintended accelerations began popping up in 2002 when Toyota began installing the ETCS-I in many of its vehicles, according to the complaint. With the increased number of reports, injuries and deaths also soared, the complaint says.

After the reports began circulating, the National Highway Traffic Safety Administration set out on its own investigation and began inspecting all 2002 and 2003 Toyota Camrys for defects. But before beginning its investigation, the NHTSA asked Toyota to send it each of the complaints related to the defect. In turn, Toyota submitted 123 complaints that it said may have been related to the defect, which was not an accurate representation, the plaintiffs say.

"Toyota thus deceptively concealed from NHTSA 'as well as from the news media and consumer safety groups that monitor NHTSA safety defect investigations, an entire universe of potentially relevant customer complaints," the suit states. "For example, the report from a driver who had experienced a sudden acceleration which lasted for a considerable time would not be seen by NHTSA because Toyota did not include it in its response, since it occurred for a 'long duration.' Similarly, a driver who reported that he/she was standing on the brake and could not overcome the open throttle would have had his/her report excluded from the investigation."

Because NHTSA heavily relied on information Toyota supplied to it for its investigation, it closed the study without finding a defect trend, according to the complaint.

Still, reports continued to flood the NHTSA and Toyota of unwarranted acceleration problems, the complaint says. Toyota threw the blame on the driver's side floor mat, although it knew the real issue lay in the engine, the plaintiffs claim.

Finally, in 2007, the NHTSA opened an engineering analysis of 2007 Lexus ES-350 vehicles to determine whether vehicle system malfunctions or mechanical interference caused the unintentional acceleration, according to the complaint.

In the analysis, the NHTSA discovered brakes may not be effective in combating the sudden acceleration, the suit states.

"Significant brake pedal force in excess of 150 pounds was required to stop the vehicle, compared to 30 pounds required when the vehicle is operating normally," the analysis described. "Stopping distance increased from less than 200 feet to more than 1,000 feet. This required brake pedal force is beyond the physical capabilities of most drivers."

Still, Toyota continued to blame the sudden acceleration on interfering floor mats, even after an accident in San Diego in which four people died due to the sudden acceleration of 2009 Lexus ES350, the plaintiffs claim.

Toyota issued a safety advisory on Sept. 29 in which it claimed that it would soon be recalling various 2007 through 2010 Camrys and Lexuses to address the issue posed by what the company says are intervening floor mats.

However, the plaintiffs say Toyotas advisory is dangerously misleading because owners of Toyota vehicles with no floor mats believe they do not face a risk of the uncontrolled acceleration. In addition, those owners with floor mats who do experience the problem will first visually determine whether the floor mat is interfering with their gas pedal and will lose valuable time when they could be shifting to neutral, according to the complaint.

The suit says the drivers of many Toyota vehicles are at risk, including those who drive 2007 and 2008 FJ Cruisers; 2003 through 2008 Tacoma pickup trucks; 2002 through 2009 Camrys; 1998 through 2009 Lexus models; 2000 through 2009 Tundras; 2001 through 2009 4Runner SUVs; 2005 through 2009 Avalons; 2001 through 2009 Land Cruisers; 2005 through 2009 Rav-4s; 2001 through 2009 Sequoias; 2004 through 2009 Siennas; 2005 through 2009 Corollas; and 2004 through 2009 Highlanders. The plaintiffs want any West Virginia citizen who owns the subject vehicles to be eligible to enter into the class action.
In the three-count suit, the plaintiffs allege negligence, breach of express and implied warranty and unjust enrichment.

They seek an order certifying the case as a class action suit, plus an award of damages, restitution and disgorgement, punitive damages, pre- and post-judgment interest, attorneys' fees, costs and other relief the court deems just. They also seek an order requiring Toyota from advertising and selling vehicles that contain the ETCS-i.

Benjamin L. Bailey, Eric B. Snyder and Robert P. Lorea of Bailey and Glasser in Charleston and Edgar F. Heiskell III of Charleston will be representing them.

U.S. District Court case number: 2:09-cv-1247