“The findings in this analysis conducted for The Safety Institute are disturbing, said Richard Newsome of Newsome Melton law firm. “For months now, all we have been hearing is how it’s the consumers responsibility to not drive cars that have been recalled, yet here we see evidence that car owners couldn’t get their recalled vehicles fixed even if they wanted to because the manufacturers don’t have the parts to fix them – and these were the vehicles that NHTSA deemed to be ‘highest risk.”
The Safety Institute is publishing the results of its study into reported shortages of Takata airbag inflators today. Newsome Melton sponsored the study, which tracks complaints filed by consumers who took their vehicles with recalled Takata airbags in for repairs only to be turned away due to a shortage of replacement parts.
By way of background, the National Highway Traffic Safety Administration (“NHTSA”) entered an unprecedented Order last November that divided recalled vehicles with Takata airbags into different “priority” levels. This process was put in place in place because the unprecedented scope of the Takata recall has turned airbag replacement parts into scarce commodities. The different priority groups were set according to what NHTSA perceives to be the biggest risk factors for inflator ruptures—the vehicle’s age and exposure to humidity. Applying those factors, NHTSA determined that Priority Group 1 would include model year 2008 or earlier vehicles that were registered in the following states and territories: Alabama, California, Florida, Georgia, Hawaii, Louisiana, Mississippi, South Carolina, Texas, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.
The NHTSA Order required that manufactures make replacement parts available for all Priority Group 1 vehicles by March 30 of this year. The study tracked consumer complaints made to NHTSA from April through July, and found many reports of consumers with Priority Group 1 vehicles being turned away for airbag replacements. And the study’s authors believe those complaints represent only a “small fraction” of the consumers who have actually been turned away, as not everyone will go through the process of lodging a complaint through NHTSA.
Despite the apparent widespread non-compliance with the Order, the study reports that NHTSA has yet to announce any penalties at all for violations. The authors were also unable to locate any evidence that NHTSA was even investigating the potential violations, although BMW did apparently ask for and receive an extension to meet the requirements.
This study has important implications for Takata airbag cases. One of the common defense refrains in these cases is that the consumer is at fault for his or her own injuries. Manufacturers will point to recall notices purportedly sent out in advance of the crash, and claim that the fault is on the person who is injured by the shrapnel for not having their vehicle fixed. We’ve long argued that the blame the consumer defense is hollow because the manufacturers cannot prove that it would have even made a difference if the consumer took their vehicle in for a repair. Today’s study further undermines this defense tactic, as widespread replacement part shortages appear to continue even for the highest priority vehicles.
The study can be viewed at this link