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The Takata Airbag Recall Part II: Decade Delay May Lead to New Lawsuits and New Legislation

NEW INFORMATION MAY LEAD TO INCREASED LIABILITY

In Part I of our discussion of the defective airbags supplied by the Japanese manufacturer Takata, research into the issue revealed that the Tokyo-based company had notice as far back as 2004 that one of its airbags had exploded upon deployment and sent metal shards into the driver of the Honda in which it had been installed. As noted in the previous blog, the injury that occurred in 2004 would not be the last; in the decade between 2004-2014, there have been approximately 5 deaths and 139 injuries associated with Takata's defective airbags.

Information has recently surfaced that sheds new light on Takata's culpability and liability for the deaths and injuries caused by its defective airbags. According to an investigation conducted by and reported in the New York Times, Takata conducted tests on the airbag propellant immediately following the 2004 incident, but then destroyed all evidence of the data collected and of the tests themselves. In addition, Takata engineers at the time (but now retired or working in another capacity), voiced concerns over the newly-designed propellant mechanism.

SENATE HEARING

On Thursday, November 20, the Senate Commerce Committee heard testimony regarding the issue of injuries from defective Takata airbags, and specifically sought answers from Takata executives and automakers who use Takata airbags what they knew about the defects and when they knew it. If this sounds familiar, it should; not too long ago General Motors executives testified before Congress concerning their knowledge about the defective ignition switches. In both cases, the companies had notice of the defect--and its lethal consequences--yet waited a decade to issue or request issuance of a national recall. The failure to act goes beyond mere negligence to create reckless disregard, or wanton and willful misconduct on the part of both companies, which can be the basis for punitive damages.

Furthermore, Takata's failure to notify car makers that its airbags are defective, its failure to report its findings to the National Highway Transportation Safety Administration (NHTSA), and its answer to Congress that it is still unwilling to support a nationwide recall on both driver-side and passenger airbags, has led to investigations by the NHTSA and the Government Accountability Office. Federal prosecutors in Manhattan are looking into the case, as is Congress.

NEW LEGISLATION

One of the reasons that the defective parts in both the GM and Takata cases did not come to light for so long is the fear by employees that they would suffer retaliation if they reported their concerns to the NHTSA or other authorities. To combat this problem, Senator Thune, the incoming chairman of the Senate Commerce Committee (the committee holding the hearing on the Takata airbags), and Senator Nelson of Florida are to propose new legislation that will offer so-called "whistleblowers" 30% of any penalties collected from regulatory action taken due to the information gained.

CONTACT YOUR ATTORNEY

It is clear that the voluntary and regional recalls of Takata airbags are insufficient, and that much broader and most likely mandatory recalls will be issued in the near future. It is also clear that by failing to notify car makers within a reasonable amount of time of the life-threatening defect, Takata can be held liable not only for compensatory damages, but punitive as well. If you have a car on the current recall list, bring it to your dealer as soon as possible. Some apps are available for smart phones that, once your car informput, inform you whether your car has the GM or Takata defective part. If you want to discuss your legal rights, or have been involved in an accident in any way caused by or have been injured by the defective airbags, contact Attorney Dave Thomas at The Thomas Law Firm.

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