WASHINGTON -- If history is any guide, fighting the National Highway Traffic Safety Administration over recalls in court is a losing battle.
Since the dawn of modern auto safety laws in the 1960s, 10 disputes over recall orders from NHTSA have wound up in court, with NHTSA prevailing eight times and an automaker avoiding a recall only once, according to the Wayne Law Review. Only the two most recent cases, in 1987 and 1998, went in favor of automakers.
It’s a track record worth noting since David Friedman, NHTSA’s deputy administrator, last week reiterated that the agency was prepared to “force” Takata and automakers to treat a potentially deadly airbag-inflator defect as worthy of a national recall if they fail to do so voluntarily.
Such battles are rare. The vast majority of recalls are done voluntarily, and the rest rarely involve a NHTSA order.
Last month, the agency called on five automakers to issue nationwide campaigns for the driver-side Takata airbag inflators. Friedman said last week that the agency was sifting through thousands of documents obtained in its Takata investigation to build “an airtight case so that if they force us to go all the way to the courts — which we will if that’s what it takes to protect the American public — then we will win.”
By late Friday, four of the five automakers had agreed to the national campaigns.
Most recalls are initiated by manufacturers. In other cases, NHTSA can push manufacturers to do a voluntary recall. These so-called influenced recalls typically result from an investigation and engineering analysis to determine whether a safety-related defect exists.
If NHTSA requests a recall, and a manufacturer protests -- as Takata has on driver-side airbags -- the agency can make an "initial" defect decision and hold a public hearing, where the automaker and others can argue their cases. Afterward, with enough evidence, NHTSA can make a "final" determination that a defect exists and order a recall, which can be challenged in federal court.
"In the cases where there have been detailed engineering analyses done and NHTSA has made a safety-related defect conclusion, they typically do prevail in a court challenge," says lawyer Deanne Ottaviano of Arent Fox in Washington who advises automakers on NHTSA issues.
The two most recent cases have gone against NHTSA.
The agency lost a trial against General Motors in 1987 to prove that GM X cars such as the Chevrolet Citation, Pontiac Phoenix and Oldsmobile Omega contained a defect in which the rear wheel locked up prematurely. Rather than completing an investigation and engineering analysis, NHTSA had gone to the Justice Department, which sued GM in 1983 seeking a recall order.
"They were relying on consumer complaints and they probably jumped the gun on bringing the case forward," Ottaviano said. "In that case, the court said there's no scientific analysis here. What you have is a large number of consumer complaints, but consumers may have been swayed by press reports about the NHTSA proceeding."
NHTSA also lost on appeal in 1998 in a case against Chrysler over a recall order for seat belt anchors that were noncompliant, but not defective. The appeals court said Chrysler didn't have adequate notice of the seat belt rules, which had recently been changed.
Ottaviano said that NHTSA's victories in the earlier challenges were won at a time when the law still had room to be interpreted by courts. Those wins helped set precedents for NHTSA's regulatory authority and what constitutes a defect, and automakers have rarely challenged a recall since.
Said Ottaviano: "They don't challenge in court unless there's a really good rationale for doing so."