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April 14, 1987

United States of America, Plaintiff,
General Motors Corporation, Defendant

The opinion of the court was delivered by: JACKSON


 The United States brings this action pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, 80 Stat. 718 (codified as amended at 15 U.S.C. § 1381 et seq. (1982 and Supp. III 1985)) (the "Act"), at the instance of the National Highway Traffic Safety Administration ("NHTSA"), U.S. Department of Transportation, against defendant General Motors Corporation ("GM"), a motor vehicle manufacturer. The complaint alleges that an entire generation of GM automobiles, its 1980 X-cars, are defective in that they are predisposed to a phenomenon known as "premature rear wheel lock-up" entailing a potential for loss of vehicle control. *fn1" Counts I and II allege, respectively, that GM determined (or should have determined), pre-production, that certain components of the X-cars' rear braking system were responsible for the condition, and that, post-production, it learned that deterioration of front braking components in service were exacerbating it, but in each instance it failed in its statutory duties to notify the Secretary of Transportation and the cars' owners of, and to remedy, the "defect." Counts III and IV allege that the two recalls of some X-cars which GM did conduct in 1981 and 1983, at NHTSA's urging, were each inadequate to cure the defect. Count V alleges that GM failed to submit accurate and complete information in response to NHTSA's queries in the course of its administrative investigation of the 1980 X-cars. And Count VI charges a violation of a NHTSA regulation in GM's omission of NHTSA's "hotline" telephone number in the recall letters sent X-car owners in the 1981 recall campaign. The United States prays for a judgment declaring that GM committed the several violations alleged, an injunction directing it to recall and effectively repair all of its 1980 X-cars, and an order assessing civil monetary penalties against it.

 By its answer GM denies that its 1980 X-cars are, or have ever been, defective, and that it violated the Act or the regulation as alleged. *fn2"

 Trial commenced March 13, 1984, and continued, with intermittent recesses, until May 16, 1985, when the Court approved and filed a stipulation of the parties closing the evidentiary record. *fn3" Following post-trial briefing, closing arguments were heard on February 25, 1986, and the case submitted.

 Upon the facts found as hereinafter set forth in accordance with Fed.R.Civ.P. 52(a), following trial without a jury, and the conclusions of law drawn therefrom, for the reasons stated the Court will enter judgment for defendant dismissing all counts of the complaint (except Count V) with prejudice.


 Enacted in 1966 "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents," 15 U.S.C. § 1381; see generally 1966 U.S. Code Cong. & Admin. News at 2709, the Act imposes a duty upon automobile manufacturers to notify both NHTSA and the owners of their vehicles when they learn the vehicles possess safety-related defects, and then to remedy those defects without charge to the owners. 15 U.S.C. §§ 1411, 1414. *fn4" The term "defect" embraces "any defect in performance, construction, components, or materials in motor vehicles or motor vehicle equipment." 15 U.S.C. § 1391(11). Prima facie proof of a defect in a class of vehicles requires only a showing that a "significant" number of them have failed in consequence of the defect, a significant number being merely a "non-de minimis " quantity; it need not be "a substantial percentage of the total." United States v. General Motors Corp., 171 U.S. App. D.C. 27, 518 F.2d 420, 438 & n.84 (D.C. Cir. 1975) ("Wheels"). Evidence of a non-de minimis number of defect-induced failures establishes a rebuttable presumption of the existence of a class-wide defect in the vehicles, and the burden of proof shifts to the manufacturer to rebut the government's prima facie showing. The manufacturer may also assert affirmative defenses, e.g., that the failures resulted from unforeseeable owner abuse or neglect of vehicle maintenance, id. at 427, 438, as to which, of course, the manufacturer has the burden of proof from the outset.

 Under § 1411 the government must also show that the manufacturer not only knows of the supposed defect in its vehicles, but that it made a "good faith" determination that the defect relates to motor vehicle safety as well. *fn5" A defect is "related to motor vehicle safety" if it presents an "unreasonable risk of accidents." 15 U.S.C. § 1391(1). As in the matter of determining the existence of a vehicle "defect," Wheels, 518 F.2d at 435-36, so also is "commonsense" analysis to be employed in ascertaining what constitutes an unreasonable risk, United States v. General Motors Corp., 184 U.S. App. D.C. 179, 565 F.2d 754, 757 (D.C. Cir. 1977) ("Carburetors"), but, as a general proposition, any defect that involves a loss of control presumptively presents an unreasonable risk of accidents as a matter of law. United States v. General Motors Corp., 183 U.S. App. D.C. 30, 561 F.2d 923 (D.C. Cir. 1977) (per curiam) ("Pitman Arms"), cert. denied, 434 U.S. 1033, 54 L. Ed. 2d 780, 98 S. Ct. 765 (1978).


 Formal planning for what was to become GM's "1980 X-car" began in 1975. *fn6" The X-car was to be GM's first high-volume front-wheel-drive automobile with a transversely mounted engine to be sold as a "coordinated car line." Because an X-car model was to be offered by each of four of GM's car divisions, its design and development was coordinated through a "project center," established in early 1976, to which engineers from both car and component divisions were assigned. The project center was administratively a part of GM's corporate engineering staff, but all engineering decisions were, ultimately, the responsibility of the chief engineers of the several car divisions: Chevrolet, Pontiac, Oldsmobile, and Buick.

 Particular divisions were assigned lead responsibility for the evolution of specific vehicle systems. Thus the Buick division acquired overall lead responsibility for the X-car's braking system. Other divisions with expertise in particular brake components were given primary responsibility for those components: the Delco-Moraine division for the front brake caliper and linings, the rear brake drum, and the master cylinder; the Inland division for the rear brake linings for automatic transmission X-cars; and the Chevrolet division for the front hub and rotor assembly, all being coordinated in their efforts by Buick's brake engineers.

 As is common practice in any GM car program, the brake engineers first selected the generic type of brake components and sized them based on projected vehicle mass. *fn7" Engineering drawings were made, from which prototype components were produced, tested in laboratories, and then tested on similarly sized peer cars (called "component" cars). As development progressed the evolving system was installed on various pre-production versions of the proposed X-car itself (called successively, "prototype," "pilot," and "lead unit build" cars). Test results were reviewed, and designs modified to improve performance as the tests indicated.

 GM's divisional brake engineers evaluated the X-car's brake system in operation principally on four of the company's established driving "schedules": the "FMVSS-105 docket" tests, the Pike's Peak descent, a West Virginia mountain road course, and a city driving schedule in and about Los Angeles. *fn8" Other vehicle systems were simultaneously being tested, by the other groups of engineers primarily concerned with them, on the same schedules, and, of particular significance for this case, on one long-distance general durability test known as the "R15-23 schedule."

 Having chosen the front disc/rear drum brake design for the X-car, GM brake engineers elected to use semi-metallic linings for the disc brakes, believing them to offer superior resistance to fade at the higher brake temperatures they expected to occur at the heavier front end of the vehicle. *fn9" Organic linings were to be employed on the rear drum brakes upon the supposition that they would be less susceptible to environmental degradation.

 The 1980 X-car was also to be equipped with two "fixed-slope" proportioning valves in its hydraulic system (one valve per rear wheel) to limit the line pressure going to the rear brakes in moderate to heavy braking. The valves compensate for dynamic force transfer by "proportioning" rear line hydraulic pressure to incremental front line pressure above a certain "break," or "knee," point which, in the X-car, was set at 350 psi. (For example, a 41% "fixed-slope" proportioner valve allows, in theory, 41% of the amount of the incremental line pressure applied to the front brakes above the "break" to reach the rear brakes as well.) In harder brake applications, therefore, more line pressure would be directed to the front brakes relative to the rear to compensate for the dynamic transfer of normal force to the front. *fn10"

 Chevrolet initially proposed a 9.34-inch vented rotor for the front disc brake, but the Buick engineers, reviewing the design in March, 1976, tentatively concluded that a smaller rotor might not provide sufficient heat dissipation and gave consideration to two larger rotors: a 9.75-inch rotor in a new caliper design, and a 10-inch rotor in an existing design. After evaluating both rotors the engineers decided upon the 9.75-inch rotor upon the theory that its smaller mass would enhance fuel economy without compromising performance.

 Semi-metallic linings, which were thought to offer several advantages over organic materials such as asbestos, e.g., increased fade resistance, superior high-speed effectiveness, and greater durability, were gaining favor throughout the automotive industry in the late 1970's. General Motors' brake engineers considered two semi-metallic materials for the front brakes of the 1980 X-car: the DM8032 material, which GM itself had recently developed as a successor to its own first semi-metallic lining, and the BX 7161A material, a Bendix product used on certain Ford and Chrysler vehicles. Its own tests led the GM engineers to conclude that the DM8032 offered equivalent or better performance in all parameters, and they selected it.

 GM engineers also weighed two alternative rear drum brake configurations for the 1980 X-car. The "leading-trailing" system presses both brake shoes against the drum when hydraulic line pressure is applied without interaction between the shoes; the "duo-servo" system, ultimately chosen for the X-car, employs the rotating action of the drum to cause the forward, or "leading," shoe to apply additional force against the "trailing" shoe, theoretically supplying more output.

 A decision in late 1977 to reroute the 1980 X-car's parking brake cable to distance it from the heat generated by the catalytic converter appeared to diminish the parking brake's mechanical efficiency, and the engineers abandoned the original plan to use 4050/4050 organic rear brake linings in favor of more "aggressive" 4035/4050 linings. Then, as the X-car program progressed through 1978, the projected weight of the vehicle increased somewhat, and the engineers grew apprehensive as to whether manual transmission X-cars would pass the federal parking brake test. *fn11" They therefore made a further change from the 4035/4050 to the still more aggressive Bendix 3198/3199 rear linings (also used on some Ford and Chrysler models) on the manual transmission X-cars.

 GM engineers were generally satisfied with the X-car brake system they had settled upon. Pilot and lead unit build cars passed FMVSS-105 certification tests using either the 3198/3199 or the 4035/4050 rear lining combinations, and the system achieved what GM engineers considered to be acceptable ratings on the Pike's Peak schedule for effectiveness, wear, temperature behavior, and overall performance. Of several different brake configurations tested on the West Virginia mountain schedule, an initial production configuration, using 4035/4050 rear linings and a 41% proportioning valve, received highest ratings overall for brake balance and effectiveness. The engineers were also generally content with the Los Angeles brake durability test results, although on some of the runs on the L.A. schedule drivers had submitted reports of incidents of "rear wheel (or brake) lockups." *fn12"

 In the latter half of 1978, a Durability Test and Development ("DT&D") group of GM's corporate engineering staff ran pre-production X-cars on a new vehicle durability test, the R15-23 schedule, which was then under development by DT&D, intended to be more abusive than the usage to which any single car in consumer service would be subjected over the life of the vehicle. Two versions of the R15-23 schedule - one of 65,000, the other of 100,000 miles - were run by X-cars. The drivers, hired from the general population, were asked to report any aspect of design, performance, or durability that displeased them or seemed to be unusual about the vehicles, from which the DT&D staff prepared written test incident reports ("TIRs") to be sent to the engineers responsible for the design of the pertinent system. In the fall of 1978, Buick began to receive TIRs from DT&D describing instances of "premature" rear wheel lockups reported by drivers running one R15-23 schedule. Buick engineers inspected and rode the suspect vehicles, concluding that the incidents were, once again, single rear wheel lockups, a conclusion confirmed for them by the discovery of unilateral glazed or cracked linings and found only on the offending wheel. *fn13"

 Nevertheless, in mid-December, 1978, the DT&D staff gave a status report on the R15-23 durability testing of the X-car generally to senior GM management gathered for a product review in Mesa, Arizona. One item prominently on the agenda was the subject of the reports of "rear brake overheating and premature lockup," as to which GM's then-president remarked that he did not want the X-car to go into production with any problem that might be so major as to require a "retrofit" after the cars had been built and stockpiled.

 On January 23, 1979, the task force unanimously recommended against a delay in the production of the 1980 X-cars as designed, and to proceed with production on schedule. The task force's recommendation was successively presented on February 1st to the X-car project center, on February 12th to a meeting of the chief engineers, and on February 15th to a general managers' meeting attended by senior corporate management, at each of which the conclusions of the task force, viz., that the single-wheel lockups were due to unilateral overheating and would not be repeated in the field, were accepted. GM thus allowed production to proceed, and the X-car was first released to the market on April 19, 1979. *fn14"

 Altogether three rear brake lining combinations were used on 1980 X-cars as produced. Nearly 200,000 manual transmission X-cars were built with the Bendix 3198/3199 rear linings. Just over 30,000 automatic transmission cars had the 4035/4050 rear linings. Approximately 825,000 X-cars were equipped with the 4050/4050 combination. Roughly 246,000 automatic transmission and 47,000 manual transmission cars had the 41% proportioner valves; the remainder were equipped with the nominal 27% valve. *fn15"


 The primary function of any motor vehicle's braking system is, of course, to enable the driver to slow the vehicle at a desired rate, varying its speed and position in traffic or on the road, or bringing it to a stop. When the brakes are applied, retarding forces develop between each tire and the pavement which cause the car to slow. The magnitude of the braking force that can be generated at each tire/road interface is limited by the adhesion characteristics of the tire and the road, which are expressed in terms of the coefficient of friction [mu] of the tire/road interface. *fn16" The higher the coefficient of friction, the greater the braking force potentially available to slow or stop the car.

 Braking force at the tire/road interface is created by application of the brakes. By depressing the brake pedal, the driver causes hydraulic pressure, in a disc brake, to clamp the brake linings against both sides of a metal rotor mounted on the wheel; in a drum brake, the brake linings are pressed against the inside walls of a cylindrical drum, also mounted on the wheel. The resulting friction force between the linings and the rotor or drum produces brake torque which will vary with changes in the coefficient of friction at the lining/rotor or lining/drum interfaces, the hydraulic pressures, and the physical dimensions of the brake components. The greater the brake torque created within the wheel, the greater the potential brake force that can be generated at the tire/road interface, within, of course, the limits of tire-to-road adhesion.

 On slippery road surfaces, with lower coefficients of friction, the maximum rate of deceleration is correspondingly reduced, because the braking force that can be generated at the tire/road interface is less than on a better pavement with a higher coefficient. Yet a driver can still apply the brakes as hard (and generate the same brake torque) as when the car is on a high-coefficient road surface. Regardless of road quality, however, if the driver applies the brakes sufficiently hard so that the braking forces exceed the available friction forces at the tire/road interface, each tire at which the limit of adhesion is reached will "lock up," or skid.

 "Brake" (or "wheel") "lockup," therefore, does not represent a systemic mechanical malfunction, or a broken or failed part. *fn17" Brake lockup can occur, and the locked wheel will skid, notwithstanding the brake system and all its components are performing precisely as intended, simply because the driver has applied the brakes with too much force relative to extant tire and road conditions. Skidding results from the interaction of the driver, the brake system, and the tire/road interface, and while on occasion it may be both alarming and dangerous, skidding in and of itself is not a failure of vehicle "performance" nor indicative of a brake "defect." *fn18"

 The consequences of a skid are likewise explained by the laws of physics. In addition to steering input, a car is also controlled in its speed and direction of travel by the tire/road friction forces. When a tire is simply rolling straight, without either being accelerated or decelerated, it uses relatively little of the available friction limit to maintain its speed, leaving most of the potential tire/road friction forces available for steering and stopping. Friction forces resulting from any combination of steering and braking diminish the ability to generate control forces at the tire/road interface, and, when the limit of adhesion is reached, the tire can no longer generate any side forces for path or attitude control. Thus, since steering is accomplished through the front wheels, turning the wheels to avoid a collision is totally ineffective when they are locked and skidding.

 Moreover, a sliding tire has a lower tire/road coefficient of friction than that of a rolling tire on the same surface. Since the deceleration rate of a car cannot exceed the coefficient of friction at the tire/road interface, a car can stop in a shorter distance if the limit of adhesion is not reached and the tires continue to roll during braking. For any given tire/road interface, there is a "peak [mu]," representing the maximum deceleration rate attainable with the tire rolling, and a "slide [mu], " which represents the lower rate the car can achieve while skidding on the same surface. A car with one or more of its wheels "locked" and skidding has a diminished deceleration potential, and, hence, a correspondingly lengthened stopping distance, in comparison to another with all tires close to the limit of adhesion but still rolling.

 An ideal brake system would, therefore, operate to approach the limit of adhesion at all four wheels simultaneously, whatever the coefficient of the surface upon which the car is traveling, making the maximum friction forces at each tire/road interface available to the driver for control purposes. Such a car, i.e., one that will develop precisely the brake torque at each wheel as necessary to achieve simultaneous incipient four-wheel lockup is said to have "ideal brake balance." *fn19" With ideal brake balance, a car possesses its shortest possible stopping distance capability; the maximum braking forces at each tire can be sustained, and the maximum deceleration rate attained, before any wheel locks up.

 As a practical matter, however, ideal balance can never be achieved by any brake design throughout the entire range of operating and loading conditions to which a car is subjected. *fn20" The limit of adhesion at each tire, being a function of both the tire/road coefficient and the normal (vertical) force on the wheel at any given instant, is a transient or dynamic value that will vary from stop-to-stop and even during a single stop. *fn21"

 The tire/road coefficients that a car may encounter are also affected by tire condition, *fn22" particularly tread wear, and inflation pressure, and may vary from point to point on an apparently uniform surface due to environmental factors, e.g., patches of rain or snow, or contaminants such as gravel, vegetation, oil, or debris. And the surface characteristics of roads themselves change over time as they become worn or damaged.

 There are two principal factors affecting the normal force on each tire, and therefore its maximum braking force, one being the loading condition of the car. In general, a lightly loaded vehicle has a greater percentage of its weight on the front tires, less when it is filled to capacity with passengers or cargo. Thus, even in a static state, ideal brake balance for a particular car would require a different distribution of brake torque among the four wheels in a fully-laden as opposed to a lightly-loaded condition. Then, of course, the effect of differences in static weight distribution is compounded by the dynamic transfer of normal force which occurs from the rear wheels to the front wheels during braking. As a vehicle decelerates, the inertia of its mass causes an increase in the normal force on the front wheels and a corresponding decrease in the rear, the magnitude of the rear-to-front dynamic force transfer being a function of the deceleration rate. *fn23"

 Because ideal brake balance for a car differs with virtually every deceleration it undergoes, some wheel will be virtually certain to lock up before another, if lockup occurs at all, and it is the sequence of lockup between the front and rear wheels that has become the central focus of this case. "Front brake lockup," or "front lock," as the terms are used here, refers to the situation in which both front wheels lock before either rear wheel during a brake application, and a car's brake system is described as "front biased" if the car will experience front brake lockup first in a stop sufficiently hard to produce lockup at all. Conversely, "rear brake lockup," or "rear lock," contemplates both rear wheels' locking before either ...

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