The National Highway Traffic Safety Administration (NHTSA) is the federal agency within the United States Department of Transportation responsible the Federal Motor Vehicle Safety Standards (FMVSS) and for the investigation and recalls of defects in motor vehicles and equipment. The following is an overview of the investigation and recall process within NHTSA.

Recalls are necessary when a motor vehicle or vehicle equipment does not comply with the FMVSS's or when they contain a safety-related defect. Most NHTSA recalls are “voluntary.” However, nearly one-third are influenced by agency investigations that are initiated through its Office of Defects Investigation or Office of Vehicle Safety Compliance. Many of these investigations result from consumer and attorney complaints submitted to the agency. Involuntary recalls result only after NHTSA pursues an investigation and makes a formal determination of defect. Only a handful of investigations in the agency's history have gone this far.

Generally, the agency considers a safety-related defect a problem that exists in a motor vehicle or equipment that poses an unreasonable risk to safety and is common to a group of vehicles or equipment of the same design or manufacturer.

The Recall and Investigation Process

Investigation of suspected defects or nonconformities are performed by the NHTSA's Office of Defects Investigation (ODI) and Office of Vehicle Safety Compliance (OVSC). There are several general processes that can lead NHTSA to begin an investigation into suspected defects, nonconformities, or recall adequacy, including:

1. Screening. Within ODI various sources are reviewed for an indication of potential defect or inadequate scope and remedy of a recall. These sources include consumer and attorney complaints, technical service bulletins, fleet reports, etc. The screening process can lead ODI to decide whether to open a formal investigation. Under the TREAD Act of 2000, NHTSA will also screen manufacturer warranty data, claims, overseas recalls, and lawsuits alleging safety-related defects.

2. Defect Petition. Pursuant to 49 U.S.C. 30162, and 49 CFR Part 552, any person may submit a petition requesting NHTSA commence an investigation into an alleged safety defect or non-compliance. The agency is required to evaluate each petition and to make a determination within 120 days whether to pursue the matter further through the defect investigation process.

3. Noncompliance Testing. While NHTSA sets minimum guidelines in the form of the FMVSS's, manufacturers self-certify compliance with the regulations. However, OVSC performs compliance spot-checks to determine whether vehicles are in fact meeting the minimum standards. In the event a non-compliance is found, an investigation will usually ensue. Most non-compliance investigations lead to a recall remedy.

Following a recommendation from the screening group or the agency's decision to grant a defect petition, a formal investigation is opened. The first level of a defect investigation is most commonly given the Preliminary Evaluation or PE label. This is the initial exploratory investigation in which the agency submits a set of interrogatories to the manufacturer referred to as the ““Information Request”” or IR. Similarly, if an investigation is recommended based on a manufacturer's Technical Service Bulletin or on repair or service notice that appear to be safety-related, the initial NHTSA investigation is labeled a Service Query (SQ). In the event that the screening process determines a potential scope and remedy problem with a past recall, the initial investigation, called a Recall Query (RQ), may be opened. In these first level investigations ODI will send an IR to the primary manufacturer and will evaluate their response to determine whether the investigation will go forward. Many PE, SQ, RQ investigations are resolved within a year and closed based on a manufacturer's willingness to ““voluntarily”” recall or based on the agency decision against pursuing the matter further.

In the event the manufacturer does not recall during the initial investigation phases and ODI finds that there is merit to further investigation, the inquiries are upgraded to the Engineering Analysis (EA) level. The EA phase begins a more detailed investigation of the alleged defect and frequently narrows or expands the scope to other similar makes, models, and model years as needed. At the beginning of an EA another more detailed IR is typically sent to the manufacturer. This may be followed by subsequent IR's or surveys that include component makers, peer manufacturers, consumers, or other companies that may have data or documents that would assist the agency in its investigation. During the EA phase testing may also be conducted through contracts with various testing facilities or through the agency test center in East Liberty, Ohio. It is also common that the manufacturers meet with NHTSA ODI staff and an attorney from the agency's Chief Counsel who is assigned to the EA. As an EA develops, ODI may decide to drop its investigation or it may informally advise the manufacturer that a safety-related defect exists and a recall should be initiated. If the manufacturer is advised that a recall should commence and declines this informal request, a review panel is assembled to examine the results of the investigation. A panel usually includes ODI staff, other technical staff from divisions in the agency that may have relevant background, as well as staff from the Administrator's office and Chief Counsel. If the panel agrees with ODI's findings, the ODI director will contact the manufacturer to inform them a recall request letter will be sent. At this point most manufacturers will seek to avoid this formal request and initiate a recall. In the very rare instance in which the manufacturer refuses to recall, NHTSA can proceed and issue an initial defect determination decision, that can be followed by a press release, public hearings, and a final defect determination and recall order. Manufacturers can challenge the agency's recall order in court. EA's are typically open for a year or more. In some instances, EA's have remained open for as many as five years.

Vague Requirements Permit Manufacturers to Accumulate Large Numbers of Complaints Without Notifiying the NHTSA

Manufacturers are in the best position to make an early determination that a safety defect exists through information they collect on a regular basis such as complaints, claims, litigation, test results, engineering reports, etc. By the time a safety issue is suspected or identified by government regulators and consumers, it is common to find that the manufacturer has already accumulated substantial information about the defect.

Part of the problem lies in the fact that regulations regarding manufacturers' duties to report unsafe products are vague and allow room for manufacturers to delay reaction to clear hazards. NHTSA regulations require manufacturers to provide the NHTSA with an ““early warning”” notification no more than five days after the manufacturer has ““determined that a safety defect exists.”” The problem is manufacturers may collect a large amount of data suggesting that a safety defect exists before making a ““determination”” that it exists, therefore delaying or never reporting problems to NHTSA.

A very recent recall of Nissan Altima's for airbag defects exemplifies the notification problem. On March 13, 2001 the NHTSA's ODI opened a preliminary evaluation to determine whether the passenger airbags on 1994 and early 1995 Nissan Altimas caused excessive face and eye injuries compared to peer vehicles. According to the ODI's final report dated March 24, 2003, the investigation was initiated on the basis of five consumer complaints and information from a plaintiffs' lawyer regarding 24 additional reports of injuries. Upon opening the investigation, ODI sent an information request to Nissan and learned that, through consumer complaints and litigation, Nissan was aware of 88 injuries. Thus, while five consumer complaints and one attorney's report about several other injuries was enough to trigger an investigation by the NHTSA, reports of 88 injuries were apparently not enough for Nissan to make a ““determination that a defect existed”” and provide the NHTSA with an early warning on its own initiative.

On April 11, 2003, only after an NHTSA engineering analysis concluded that ““it is undisputed that there have been far more claims identifying moderate-to serious eye injuries allegedly due to air bag deployments in the subject vehicles than in similar peer vehicles”” Nissan finally notified the NHTSA that it would recall and replace all passenger air bag modules on model year 1994 and early 1995 Nissan Altimas with ““depowered”” air bag modules. Nissan's action could hardly be considered voluntary, particularly in light of the ODI's statement in the closing resume for this investigation that ““We would not have closed this investigation in the absence of an action that addresses our safety concerns.”” In other words, there was going to be a recall whether it was voluntary or mandatory.

As of this writing, the NHTSA's records contain no information on when the Nissan air bag recall is scheduled to begin other than ““shortly”” in spite of the fact that the investigation began over two years ago. In all likelihood, more consumers were injured by these defective airbags between the time the investigation was opened and the time Nissan ““voluntarily”” agreed to recall them, and more will be injured before the replacement process is complete. This scenario is by no means unique, but it does illustrate the propensity of manufacturers to ignore defects until the defect is blatant and/or an NHTSA mandated recall is imminent.

Reporting Defects and Requesting Investigations

If no investigation is pending, report the problem through NHTSA's Vehicle Owner's Questionnaires. These reports play an important role in the agency's decision-making process. However, much consideration should be given before undertaking a petition requesting the agency to formally investigate. Most petitions are denied given the limited resources of the agency. While many defects are the subject of recalls, numerous others do not get recalled for a variety of reasons including agency regulatory limitations, budget and manpower constraints, prior precedents, and politics. Understanding agency precedents, limitations, and their position on an issue is critical before making requests for investigations. In lieu of a formal request, notifying the appropriate NHTSA staff of serious defects can also achieve a recall. This firm notified key staff persons about a rear hatch failure in a GM vehicle that resulted in the ejection and serious injury of our client. While the agency never opened a formal investigation, they contacted GM and requested that all materials from their investigation be provided. However, the threat of a NHTSA inquiry led GM to ““voluntarily”” recall nearly 100,000 vehicles only months after the agency contacted them.

If there is an ongoing investigation into a defect in which you have information, supporting agency efforts can be an important part of the process. Again, the Nissan Altima investigation illustrates this point as efforts by plaintiffs' attorneys to not only initiate NHTSA intervention, but to provide material in support of their investigation provided vital evidence countering Nissan's claims.

The Litigation Value of an NHTSA Investigation

One of the first steps in investigating any potential lawsuit involving a motor vehicle should include research of recalls and NHTSA investigations, including those that are concluded without a product being recalled. NHTSA can be reached by calling their Auto Safety Hotline at 1-888-327-4236 or logging on to their website at www.nhtsa.gov. It is important to examine similar models and years as an investigation may have only covered one model while identical models experiencing problems were not named in the investigation. This requires an understanding of the history of the model in question and related vehicles.

NHTSA investigations can be important sources of data, similar incidents, testing, and information about the vehicle or equipmentall of which can help support litigation. Finally, while a file full of consumer complaints is good evidence that a manufacturer was on notice of a potential defect, the existence of an NHTSA investigation is patent, undeniable evidence that a manufacturer is on actual notice at every corporate level. Evidence that injuries occurred after such notice provides a compelling case for punitive damages.

Conclusion

Despite manufacturers' claims that litigation is excessive and jury verdicts are out of control, rarely is litigation alone enough to prompt a manufacturer to recall a dangerous product or even notify the NHTSA of a potential problem. This suggests that, rather than too much litigation, there is still not enough litigation to create the financial incentive for manufacturers to promptly identify dangerous products and remedy defects on their own initiative.

During the first quarter 2003, the NHTSA initiated thirty six recalls of cars, vans and light duty trucks due to safety defects or nonconformity with federal regulations. What follows is a survey of these recalls in reverse chronological order.