W. Randolph Barnhart, Esq., CTLA August 7, 2010 Attack, Deny, Delay Industry’s Playbook for Avoiding Consumer Justice W. Randolph Barnhart W. Randolph Barnhart, PC 50 South Steele Street, Suite 325 Denver, CO 80209 303-377-6700 Rbarnhart@rbarnhartlaw.com

W. Randolph Barnhart, Esq., CTLA August 7, 2010 It All Started With Big Tobacco

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Nicotine is Not Addictive

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Big Tobacco Tactics Use Science to Raise Doubt Use Doubt to Confuse the Public Blunt, Delay or Avoid Regulations

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Doubt is Their Product How Industry’s Assault on Science Threatens Your Health David Michaels, new OSHA administrator, writes about industry’s 50-year record of co-opting science to continue harmful practices.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Industry’s “Sound Science” Create Industry-Funded Research Groups Foundation for Clean Air Progress Burson-Marstellar group funded by trucking and petroleum industries Council on Tobacco Research Attacks Anti-Smoking Research Center for Consumer Freedom Attacks obesity studies for food industry

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Industry’s “Sound Science” Use Science-for-Hire firms Exponent: Auto industry favorite The Weinberg Group: Polluters and Big Pharma ChemRisk: Ued by manufacturers of toxic chemicals

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Industry’s “Sound Science” Re-Analysis of Old Data Meta-Studies Strawman: Redefine what was done and then describe why its not valid.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Industry’s “Sound Science” Disseminate Junk Science To the public via the press Insert into the regulatory record Before juries Funnel science-for-hire through defense counsel Protect as attorney work-product

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards Motor vehicle standards established in late 1960s-early 1970s Few substantially upgraded since Upgrades usually follow crises – but even crises are no guarantee.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards Ford – Firestone spawned the TREAD Act Forced first upgrade to the tire standards since the bias-ply in the 1970s. Rollovers account for only 2% of crashes but nearly 25% of all vehicle death and injuries. Roof Strength was finally upgraded in 2009 from its 1972 “temporary” standard – still no dynamic test. Industry prevented minimum rollover requirement -only a “star” rating test.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards 1961 Ford Congressional testimony: " …. we need no roll bar because of the inherent strength of the structure of our vehicles; a roll bar is not needed for a safety feature.“ Dynamic testing was done to ensure occupant space was maintained and injuries mitigated from roof crush.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards Ford 1968 Study: "Roof intrusion may have a more pronounced effect on occupant injuries with increased usage of upper torso restraints." "It is obvious that occupants that are restrained in upright positions are more susceptible to injury from a collapsing roof than unrestrained occupants who are free to tumble about the interior of the vehicle. It seems unjust to penalize people wearing effective restraint systems by exposing them to more severe rollover injuries that they might expect with no restraints."

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards Manufacturers response to NHTSA proposed rulemaking: No causal relationship between roof intrusion and occupant injury. Dynamic testing is unscientific and unrepeatable. Result: Static standard with little affect on roll safety

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Outdated and Weak Standards Standards affecting important safety controls were written pre computers: Outdated anti-theft and key standards Currently affecting vehicles with “smart keys” Rollaway and carbon monoxide poisoning. Accelerator control standard written when all cars had Bowden Cables Most vehicles are “drive-by-wire” No standards for electronic throttle control fail-safes.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Manufacturers’ Tactics In regulatory arena: Oppose everything Oppose seat belts Oppose airbags Oppose roof strength requirements Oppose dynamic rollover test requirements Oppose consumer readable tire date codes More study is needed for everything…

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Automakers Tactics Ralph Nader “The Sporty Corvair” NYT reports: GM hires prostitutes, private detectives GM taps Nader’s phone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford’s Public Relations Nightmare Summer 2000

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford turned the tire / rollover problem into a tire only defect. Defend the Explorer At All Costs “Run the bus over Firestone” Scripted Question and Answer Sessions Avoid U.S. Explorer recall

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford successfully blamed Bridgestone-Firestone tires for 173 documented rollover deaths. Ford CEO Jacques Nasser to Congress, Sept. 2000: “The data tell us that the problem is with the tires and not the vehicle.”

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford Admits Vehicle Defect Lee Carr, Ford Corporate Representative and Expert Ford / Firestone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford Admits Vehicle Defect Donald Tandy, Ford Corporate Representative and Expert Not reasonably safe for all intended uses.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect “Silent Recall” in Venezuela

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Explorer: The Skate Defect “Silent Recall” in Venezuela

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone U.S. Ford Denies Skate Defect

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone U.S. Ford Denies Skate Problem

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone U.S. Ford Denies Skate Problem

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford’s Scripted Answers

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford’s Scripted Answers

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Ford Explorer: If you have a big enough defect you can get away with it…. Disproportionately represented in tire-related fatal crashes post-Firestone tire recall. Fatal tire-related crashes have risen significantly Higher levels than before the tires were recalled. NHTSA secret “Death Inquiry” Investigation in 2006 amid mounting evidence, walks away from Explorer defects.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone Data continue to point to Explorer defects: QCS study examined crashes post-recall April 1, 2002 –Dec. 31, 2007

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone QCS Study found: 501 total Ford Explorer occupant deaths 65 percent occurring after recalls announced 285 deaths in 232 tire-related Ford Explorer FARS crashes Conclusion: The tire recalls and replacement campaigns have not resulted in long-term reductions in tire-related deaths in the Ford Explorer fleet.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford / Firestone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Ford Firestone

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay 2003-2009 Toyota Controls the Narrative: Sudden Unintended Acceleration cannot occur. Malfunctions will always set a error code. Brakes will always overcome open throttle.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny,Delay NHTSA accepts Toyota’s explanations – Nothing wrong with the electronic throttle control (ETC) Seven Investigations close No defect finding Limited recall of floor mats under pressure from NHTSA in 2007. Expands floor mat recall in wake of San Diego Police officer crash.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Toyota ETC intro in 1998 Drive-by-wire system derived from avionics now brought down to commodity level for auto use. Fault defection / Fail-safe at issue.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Toyota loses Control of Story: ABC News Nov. 4, 2009

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Safety Research & Strategies issues report on history of Toyota SUA: Details Toyota obfuscation NHTSA complacency Recalls don’t address most of the complaints Dr. David Gilbert, SIU Carbondale automotive technology professor releases preliminary report: Challenges Toyota’s central thesis: a malfunction will always be detected by the system. Shows loss of failsafe redundancy can go undetected (http://www.safetyresearch.net/toyota-sudden-unintended-acceleration/)

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Four Congressional Hearings from three committees. Akio Toyoda apologizes for mistakes U.S. Secretary of Transportation says Toyota is “safety deaf” Toyota waffles on the root causes Safety advocates and auto technology professor point to electronics

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Limited recall includes electronic brake override. Why add a brake override if electronics are not part of the problem?

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota Tactics Toyota hires former Obama Pollster Joel Beneson Tests messages to discredit advocates and researchers who raised questions about electronics. Creates video with Exponent (strawman tactic) claiming test that found failed fault detection were invalid.

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Toyota: Hires Bowman and Brooke B&B retain Exponent B&Brooke visit SIU Carbondale Two Toyota managers resign from SIU advisory board

W. Randolph Barnhart, Esq., CTLA August 7, 2010 Toyota: Attack, Deny, Delay Toyota had attack plan against congressional testimony, documents show “Toyota officials sought to develop a public relations campaign to attack the credibility of key witnesses who have testified before Congress about acceleration problems with the company's cars, according to documents provided to the House committee investigating the automaker.” May 15, 2010