Petition — General Motors Corp. v. United States

Supreme Court U.S. |

FILED "

' OCT ~6 1977

No. 77—

ooo JR., CLERK

In the Supreme Court of the Untted States :

OctTosBer TERM, 1977

@2-521

GENERAL Motors CorPORATION, PETITIONER,

Vv.

UNITED STATES OF AMERICA, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Joun H, PICKERING

JAMEs ROBERTSON

MicHAEL L. BuRACK

Joun F. Cooney

1666 K Street, N.W.

Washington, D. C. 20006

Attorneys for Petitioner

General Motors

Corporation

Of Counsel:

Otis SMITH

General Counsel

General Motors Corporation

Detroit, Michigan

WILMER, CUTLER & PICKERING

Washington, D. C.

£

INDEX

PAGE

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STATUTORY PROVISIONS INVOLVED .............4-. 2

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REASONS FOR GRANTING THE WRIT .............-- 13

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TABLE OF AUTHORITIES

CASES:

Cleveland Board of Education v. Lafleur, 414 U.S.

le GEO. 0.065 0b0bcewdensstdnsscneceeses 15

Ethyl Corp. v. Environmental Protection Agency,

541 F.2d 1 (D.C. Cir.) (en banc), cert. denied,

GP Tee DOS COOCED. 60 ca eeadevesdsbnssecss 14

Ford Motor Co. v. Coleman, 402 F. Supp. 475

(D.D.C. 1975), aff'd, 425 U.S. 927 (1976)

6, 12, 16, 17, 19

General Motors Corp. v. Volpe, 457 F.2d 922 (3d

Cir. 1972), affg 321 F. Supp. 1112 (D. Del.

MEE wencceceepnasseencsstisiriritetsyes 18

il

PAGE

St. Louis, Iron Mountain & Southern Ry. v. Wil-

Ragone, 251 U.S. GB CIDID) oc ccciccscctcvcccs 17

St. Regis Paper Co. v. United States, 368 U.S. 208

(1961), aff'g 285 F.2d 607 (2d Cir. 1960) .... 17

Schriber-Schroth Co. v. Cleveland Trust Co., 305

as SP Ce hdascedncdiccoccedudeudees 19

Stanley v. Illinois, 405 U.S. 645 (1972) ........ 15

United States v. Carroll Towing Co., 159 F.2d 169

Ce Ga CFD. Sabuabadeeh sérnscsudceveann 14

United States v. General Motors Corp., 518 F.2d

Ge CHG. GAA Gee Kis ove duvedsas 6, 7,9, 12, 14

United States v. General Motors Corp., C.A. D.C.

Nos. 76-1744 and 76-1745, on appeal from 417

PF. Sap SSS COA, TPO) cc ctccscccessccs 16

Wadley Southern Ry. v. Georgia, 235 U.S. 651

CEPUED. 6écdcopke tadadevaiedtsiexedsastene 17

White Motor Co. v. United States, 372 U.S. 253

LUD 05000 se4etqnen vdesegueneban ene 15

STATUTES AND REGULATION:

National Traffic and Motor Vehicle Safety Act of

1966, 80 Stat. 718, 15 U.S.C. 1381 et seg. (1970)

(COREE TROD 00 cbcdapanensteesste.2cbee 4+

Section 102(1), 15 U.S.C. § 1391(1)..2, 7, 9, 12, 13

Section 102(11), 15 U.S.C. §1391(11) ...... 3,9

Section 108(a), 15 U.S.C. § 1397(a) (1970)

CEE TEP OD -6 cei nssecbideves sseves

Section 109, 15 U.S.C. § 1398 Saat."

(amended 1974) seevevsiedesnsceceseee 5, 16

Section 110, 15 U.S.C. $1399 (1970)

(amended 1974) Jeapadestuahatesueaenel

Section 110(a), 15 U.S.C. § 1399(a) (1970)

(nem TEP OD. oo ccdccdcncaddncnteeuds

Section 113(e), 15 U.S.C. § 1402(e) (1970)

(amended 1974) 2... ccccccccvcccenes 3, 5,6,7

ill

PAGE

Sections 151-155, 15 U.S.C. §§ 1411-1415

Fh So Creda. ce inc bees Bea

Section 155(a), 15 U.S.C. § 1415(a) (Supp.

WEED Wine etnbd caknandsedecssecate 18, 19

Section 155(c)(1), 15 U.S.C. dabahiades.

oe Eres ore 16, 17

Be es BERND COPED oes ccccetevscicsesue 2

Pub. L. 93-492, 88 Stat. 1470 ..... tin us Aiea 6

Section 102(c), 88 Stat. 1477 ............04.. 6

ee te BNE ED 1b 04564006 oko db08e 0 5

LEGISLATIVE AND ADMINISTRATIVE MATERIALS:

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966) ...7, 14

H. R. Rep. No. 93-1191, 93d Cong., 2d Sess. (1974) 6

H. R. Rep. No. 93-1452, 93d Cong., 2d Sess. (1974) 6

Traffic Safety: Hearings on S. 3005 Before the

Senate Comm. on Commerce, 89th Cong., 2d

Sess. (1966) ..... RP a i oe eee 14

Hearings Before the Senate Comm. on Commerce,

Pe Re. SE SU, ERO 20 ct cccccdcssvces 6

Amendments to the National Highway and Traffic

Safety Act of 1966: Hearings on H.R. 7505,

H.R. 5529, H.R. 4187, and S. 355 before the Sub-

comm. on Commerce and Finance of the House

Comm. on Interstate and Foreign Commerce

(Part I), 93d Cong., Ist Sess. (1973) ......... 17

Department of Transportation, National Highway

Traffic Safety Administration, Traffic Safety ’76

PT Gite de enkaclaeeened ss thst anenhds 000 18

in the Supreme Court of the United States

OctToBER TERM, 1977

No.

GENERAL Motors CorPporATION, PETITIONER,

Vv.

UNITED STATES OF AMERICA, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

General Motors Corporation (“GM”’) petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A) has not

yet been reported. The opinion of the district court denying

cross-motions for summary judgment (App. D) is reported

at 65 F. R. D. 115. The district court’s post-trial memoran-

dum of findings and conclusions (App. E) is not reported.

2

JURISDICTION

The judgment of the court of appeals in these consoli-

dated cases (App. B) was entered on June 28, 1977.’ A

timely petition for rehearing with suggestion for rehearing

en banc was denied on August 18, 1977 (App. C). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) (1970).

QUESTION PRESENTED

Whether in applying the key definitional provision of

the National Traffic and Motor Vehicle Safety Act requir-

ing that a manufacturer recall automobiles containing a

defect which poses an “unreasonable risk” of accidents,

injury and death, the court of appeals disregarded the

intent of Congress by adopting a per se rule which precludes

introduction of evidence on the existence and degree of risk.

STATUTORY PROVISIONS INVOLVED

Section 102(1) of the National Traffic and Motor

Vehicle Safety Act of 1966, 15 U.S.C. § 1391(1) (1970),?

provides :

“Motor vehicle safety” means the performance

of motor vehicles or motor vehicle equipment in such

a manner that the public is protected against un-

reasonable risk of accidents occurring as a result of

the design, construction or performance of motor

'This petition seeks review of the judgment entered in two

—— ~ which were consolidated for trial and on appeal. See

p. 8 n.5 infra.

*The Act was amended in 1974 in respects not material to this

litigation. See p. 6 n.4 infra.

3

vehicles and is also protected against unreasonable

risk of death or injury to persons in the event acci-

dents do occur, and includes nonoperational safety

of such vehicles.

Section 102(11) of that Act, 15 U.S.C. § 1391(11)

(1970), provides:

“Defect” includes any defect in performance,

construction, components, or materials in motor

vehicles or motor vehicle equipment.

Section 113(e) of that Act, 15 U.S.C. § 1402(e) (1970)

(amended 1974), provides:

(e) If through testing, inspection, investigation, or

research carried out pursuant to this subchapter, or

examination of reports pursuant to subsection (d)

of this section, or otherwise, the Secretary deter-

mines that any motor vehicle or item of motor vehicle

equipment—

(1) does not comply with an applicable Fed-

eral motor vehicle safety standard prescribed

pursuant to section 1392 of this title; or

(2) contain a defect which relates to motor

vehicle safety ;

then he shall immediately notify the manufacturer

of such motor vehicle or item of motor vehicle equip-

ment of such defect or failure to comply. The notice

shall contain the findings of the Secretary and shall

include all information upon which the findings are

based. The Secretary shall afford such manufacturer

an opportunity to present his views and evidence in

support thereof, to establish that there is no failure

4

of compliance or that the alleged defect does not

affect motor vehicle safety. If after such presenta-

tion by the manufacturer the Secretary determines

that such vehicle or item of equipment does not com-

ply with applicable Federal motor vehicle safety

standards, or contains a defect which relates to motor

vehicle safety, the Secretary shall direct the manu-

facturer to furnish the notification specified in sub-

section (c) of this section to the purchaser of such

motor vehicle or itetn of motor vehicle equipment as

provided in subsections (a) and (b) of this section.

STATEMENT

This case of first impression presents a question of

great significance concerning the proper construction of

the critical statutory term “unreasonable risk” which

defines the scope of the motor vehicle recall provisions of

the National Traffic and Motor Vehicle Safety Act of 1966,

15 U.S.C. § 1381 et seg. (1970) (amended 1974) (“the

Act” or “the Safety Act’’). Two judges in the District of

Columbia Circuit—the trial court and the dissenting judge

in the court of appeals—agreed that application of that

term raised “a matter of fact, not of supposition” (App.

D, p. 45a), but two others—the majority of the court

of appeals’ panel—instead resorted to a per se rule. The

court of appeals’ brief, cryptic per curiam opinion thus

creates considerable uncertainty as to whether the existence

of an “unreasonable risk’’ in Safety Act cases is a factual

matter susceptible of trial, or a question to be resolved by

judicial hunch and supposition without admission of evi-

dence. Resolution of this recurring issue is of vital impor-

tance to the automotive industry, which is the largest

manufacturing sector of the economy, and, of course, to

the public safety.

The Statutory Scheme

The Act empowers the Administrator of the National

Highway and Traffic Safety Administration (“NHTSA”),

as the delegate of the Secretary of Transportation (49

C.F.R. § 1.51(a) (1977)), to direct the manufacturer of a

motor vehicle to notify all purchasers of that vehicle model if,

after an informal and expedited inquiry, the Administrator

determines that the model “contains a defect which relates

to motor vehicle safety.” 15 U.S.C. §1402(e) (1970)

(amended 1974). The Administrator’s investigation of any

vehicle model he suspects may be hazardous is ex parte. If

he initially determines that a vehicle contains a “defect”’

which “relates to motor vehicle safety,” the Act requires

that he notify the manufacturer of his findings and furnish

all information on which his determination is based. The

manufacturer then is afforded an opportunity to persuade

the Administrator at an informal public meeting that the

defect does not exist or is not safety-related, but the

manufacturer is not afforded the rights of confrontation,

cross-eximination or other adjudicative due process rights

at that meeting. If the Administrator adheres to his initial

findings, he may direct the manufacturer to give notifica-

tion of the defect to purchasers of the vehicle.

If the manufacturer fails to comply with the Admini-

strator’s directive, the United States may bring an enforce-

ment action in federal district court seeking compliance

with the order and a substantial civil penalty. Sections

109 and 110, 15 U.S.C. §§ 1398(a), 1399(a) (1970)

(amended 1974). The enforcement proceeding involves a

trial de novo of the factual questions surrounding the

presence or absence of a safety-related defect. The gov-

ernment bears the burden of establishing at trial that the

EE SS v

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| BST COPY AVALABLE

6

alleged safety-related defect does in fact exist.* If the

government prevails at trial, the manufacturer is required

to notify the purchasers and is liable to assessment of the

statutory penalty.‘

%In order “to expedite the disposition of safety-related defect

and noncompliance matters without violating the constitutiona’

rights of due process,” Congress provided informal procedures at

the defect notification stage with the —— that due process

Senden of prea! on ten Govunaban tp govun ly & goememimunee

rden of proof on vernment to prove, by a

of the evidence, that a safety-related defect . . . exists” before the

manufacturer could be held liable. H.R. Rep. No. 93-1191, 93d

Cong., 2d. Sess. 17 pele see Ford Motor Co. v. Coleman, 402

F. Supp. 475, 480 n.12 (D.D.C. 1975), aff'd, 425 U.S. 927 (1976) ;

United States v. General Motors Corp., 518 F.2d 420, 426 (D.C.

Cir. 1975) (“Wheels”).

Congress adopted this approach in lieu of the procedure

by petitioner, and initially approved by the Senate in considering the

1974 Amendments, that a recall notification issue only after a formal

administrative hearing based on the record, with cross-examination

of witnesses on adjudicative facts, and with judicial review by the

Court of Appeals for the District of Columbia Circuit on a substan-

tial evidence basis. See H.R. Rep. No. 93-1452, 93d Cong., 2d Sess.

29, 32 (1974); H.R. Rep. No. 93-1191, supra, at 17; cf. Hearing

rp ts the Senate Comm. on Commerce, 93d Cong., Ist Sess. 92

(1973).

*The Administrator issued the instant directive in January 1974

pursuant to Section 113(e) of the Act. 15 U.S.C. § 1402(e) (1970)

(amended 1974). The Act subsequently was amended on October

27, 1974. Pub. L. 93-492, 88 Stat. 1470. The major effects of the

Amendments were: (1) to expand the remedy provision to require

that the manufacturer not only notify, but also correct safety related

defects without charge to the owners; (2) to require the manufac-

turer, should the Administrator so order, to send out provisional

notice of the defect while the enforcement action is being litigated

and (3) to increase the maximum civil penalty from $400,000 to

$800,000. Section 113 was repealed and by essentially

pn notification provisions (15 U.S.C. §§ 1411-1415 (Supp. V

The 1974 Amendments do not apply to any notification required

to be issued before their effective date, Pub. L. 93-492, Section

102(c), 88 Stat. 1477, and thus do not affect this litigation. While

the Amendments changed the remedies associated with a safety

related defect, they did not change the essential statutory provision

that notification is required only of a “defect which relates to motor

vehicle safety.” Nor did they modify the definitions of “defect” and

7

The Act both grants authority for the issuance of recall

directives and limits that authority. Thus, Section 113(e)

(2), 15 U.S.C. § 1402(e)(2) (1970) (amended 1974),

empowers NHTSA to issue notification directives, but only

with respect to vehicles that contain “a defect which relates

to motor vehicle safety.” ‘Motor vehicle safety” is a de-

fined term, and its definition expressly delimits the scope

of the entire statute. S. Rep. No. 1301, 89th Cong., 2d Sess.

5 (1966) ; see United States v. General Motors Corp., 518

F.2d 420, 435 (D.C. Cir. 1975) (“Wheels”). Section

102(1), 15 U.S.C. § 1391(1), provides that

“Motor vehicle safety” means the performance of

motor vehicles or motor vehicle equipment in such

a manner that the public is protected against unrea-

sonable risk of accidents occurring as a result of

the design, construction or performance of motor

vehicles and is also protected against unreasonable

risk of death or injury to persons in the event acci-

dents do occur, and includes nonoperational safety

of such vehicles. (Emphasis added.)

Thus, the Act does not require notification of every defect,

but only of those which present “unreasonable risk” of

accidents, injury or death.

The Proceedings Below

In 1972, NHTSA initiated an investigation of alleged

failures of pitman arms in 1959-1960 model year Cadillac

“motor vehicle safety” which are at issue in this case. See United

States v. General le Corp., supra, 518 F.2d at 436 & n.72. The

court of appeals’ decision on the standard of safety-relatedness there-

fore has full prospective application (App. A, p. 6a n.7). Accord-

ingly, the 1974 Amendments of the statute provide no basis for deny-

ing certiorari in this case.

8

automobiles manufactured by petitioner. The pitman arm

is an essential element of the automobile steering system.

It transfers the angular motion of the steering wheel and

shaft to the lateral movement of the steering linkage which

turns the front wheels. If it fails, the vehicle cannot be

steered.

On the basis of its investigation, NHTSA in September

1973 advised petitioner of its initial determination that

these 1959 and 1960 Cadillacs contained a safety-related

defect. The advice was contained in a letter which did not

specify the defect but which furnished GM with a copy of

the investigative report. On November 6, 1973, NHTSA

conducted an informal meeting at which petitioner disputed

the validity of the contents and conclusions of NHTSA’s

investigative report and argued that the pitman arm did

not present an unreasonable risk of injury or accidents.

By letter dated January 10, 1974, the Administrator

notified petitioner of his final determination that the pitman

arm problem constituted a safety related defect and directed

petitioner to furnish the notice specified by the statute to

the purchasers of these automobiles (App. A, pp. 5a-6a;

App. D, p. 40a). Petitioner disagreed with that deter-

mination and promptly sought judicial review of the recall

directive.®

On February 13, 1974, the United States filed suit in

the United States District Court for the District of

Columbia seeking to enforce NHTSA’s order under Section

110(a) of the Act, 15 U.S.C. § 1399(a) (1970) (amended

1974), and to collect the maximum civil penalty pro-

vided under Section 108(a), 15 U.S.C. 1397(a) (1970)

5Petitioner filed suit in the United States District Court for the

Eastern District of Michigan seeking a declaration that NHTSA’s

determination was unlawful and an injunction against enforcement

of its order. That action subsequently was transferred to the Dis-

trict of Columbia and consolidated with the government’s enforce-

ment action (App. D, p. 40a; App. E, p. 52a & n.10).

9

(amended 1974). Both parties moved for summary judg-

ment. Following the standards adopted in Wheels, supra,

the court granted the government’s motion for summary

judgment on the issue of the existence of a “defect” within

the meaning of Section 102(11), 15 U.S.C. § 1391(11)

(App. D, pp. 40a-42a; App. E, p. 49a).°

On the issue of whether the pitman arm defect was

“safety-related” within the meaning of Section 102(1), the

district court found that there was a disputed issue of mate-

rial fact which required denial of both motions for sum-

mary judgment. Relying solely on the administrative record,

which had not been tested in an adversary “due process”

hearing before the agency, the government had contended

that pitman arm failure could occur at high speed and

constituted an unreasonable risk at any speed. Petitioner

had countered with evidence and affidavits showing that

pitman arm failure could occur uniy when the wheels were

turned to or nearly to their extreme limits, a condition

reached only in parking or turning at very slow speeds,

when loss of directional control can be checked by braking,

or when the automobile is standing virtually still (App. D,

p. 43a). GM also argued that the operational history of

these 15-year-old Cadillacs—some 24 billion miles of travel

with “no documented injury or death resulting irom pitman

arm failure, as NHTSA has admitted”—demonstrated the

absence of unreasonable risk (App. E, p. 56a: see App. D,

p. 43a).

The district court observed that “[t]here is a certain

appeal to the government’s argument that a defect which

may result in a loss of steering control is, ipso facto, a

safety-related defect under the Act” (App. D, p. 45a).

*Petitioner did not challenge this ruling on appeal (App. A,

p. 8a). Therefore, this issue is not presented to the Court for

review.

10

However, the court found that the statute required rejec-

tion of any such a priori postulation:

The Act is more limited, however. Under its stand-

ard, a safety-related defect must pose, not just a

risk of accidents, death or injury, but an unreason-

able risk. The inclusion of the adjective “unreason-

able,” as well as the legislative history make the

question of whether fatigue induced failure of the

pitman arm creates such an wnreasonable risk a

matter of fact, not of supposition (App. D, p. 45a)

(footnote omitted).

Faced with conflicting factual submissions on the existence

and degree of risk to the public, the court held that the

reasonableness question could be resolved only by a de novo

trial and denied the cross-motions for summary judgment

(id., pp. 45a-46a).

In the ensuing non-jury trial, the government attempted

to prove through the testimony of an expert metallurgical

witness that pitman arm failure could occur at high speed.

It also introduced testimony purporting to describe a pit-

man arm failure which had occurred in circumstances other

than in parking maneuvers or in a low-speed U-turn (App.

E, pp. 55a-56a & n.14). In response, petitioner adduced

expert metallurgical and engineering testimony to show

that pitman arm failure could occur only during low-speed

maneuvers or while the vehicle is stationary. Petitioner

also introduced a risk analysis to quantify the projected

future safety record of the Cadillacs, which, at that time,

had completed approximately 96% of their useful lives.

On the basis of past experience of billions of miles traveled,

and on the basis of the engineering and metallurgical evi-

dence concerning the nature of pitman arm failure, GM’s

expert calculated that there was “a negligible risk of acci-

dents, injuries or death due to pitman arm failure in the

11

extremely limited future that remain[ed] for those automo-

biles” (App. E, p. 57a).

After consideration of all the evidence, the court found

that the government’s evidence of one pitman arm failure in

conditions other than parking or very slow turns did not

prove that such failures “would happen sufficiently often to

create an unreasonable risk to safety” (id., p. 57a). It

therefore held that the government had failed to demon-

strate that the pitman arm defect was safety-related and

set aside the defect notification order (id., pp. 57a-58a).

The court of appeals, with one judge dissenting, re-

versed. In a one paragraph per curiam opinion, the ma-

jority held that the district court should have granted

summary judgment for the government, without receiving

evidence beyond the untested administrative record, on the

issue of whether the pitman arm defect “related to motor

vehicle safety” (App. A, p. 2a). The majority considered

only that the case involved a steering defect. It held that

three facts—that six times as many replacement parts had

been sold for these Cadillacs as for vehicles of adjacent

model years; that pitman arm failures had occurred while

these Cadillacs were being driven; and that their failure

led to loss of directional control of the car—were sufficient

without more to demonstrate conclusively an “‘unreasonable

risk of accidents” as required by Section 102(1)(1d., p. 2a).

The majority did not address any of the evidence received

at trial. It simply announced a per se rule, reversed the

judgment of the district court, and remanded for deter-

mination of the appropriate civil penalty (id.).

Judge Leventhal wrote a lengthy dissenting opinion out

of concern for the precedential effect of “the doctrine we

establish for governance of this type of case in the future

12

... (App. A, p. 34a)." While recognizing that proof

of a defect in steering might make out a prima facie case

that such a defect was safety-related, Judge Leventhal

rejected the majority’s per se rule that any defect in the

steering system ipso facto presented an “unreasonable

risk” of accidents. Under his analysis, the critical flaw in

the majority’s reasoning was the

[elevation of] facts which give rise to a strong

suspicion of dangerousness into a conclusive pre-

sumption of the existence of a safety-related defect

(id., p. 34a).

Judge Leventhal found that by the inclusion of the term

“unreasonable risk” in Section 102(1), Congress intended

to require a factual balancing of the safety benefits to be

obtained from, and the costs of compliance with, each par-

ticular recall order. He found that this provision required

that the manufacturer be permitted “the opportunity to

dispel . . . justified apprehension by proof that failure due

to the defect does not occur in a dangerous fashion and

that the risk arising from the defect is therefore inconse-

quential” (App. A, p. 34a). He concluded that “GM should

have the opportunity to show that the failures occur in

circumstances in which loss of steering is not dangerous”

through proof of “a valid prediction of negligible future

risk from operation of the cars based on a significant data

base” accumulated during a substantial period of automo-

bile operation (App. A, pp. 15a, 17a).°

‘Judge Leventhal enjoys a special familiarity with the statuto

scheme by virtue of having authored the two major opinions whic

have interpreted the Act, Ford Motor Co. v. Coleman, which was

summarily affirmed this Court, ~

hada te oe by this 425 U.S. 927 (1976), and

*Judge Leventhal styled his decision a partial dissent beca

he also disagreed with the district court’s allocation of the besden

13

REASONS FOR GRANTING THE WRIT

In a decision of first impression, the court of appeals

has departed fundamentally from the principles Congress

intended to be utilized to determine whether a vehicle

model should be recalled. And, by adopting a per se rule

that precludes a manufacturer from introducing evidence

bearing on the presence or absence of an “unreasonable

risk,” the court below has frustrated the manufacturer’s

ability meaningfully to exercise its right to challenge the

informal administrative determination of a “safety related”

defect. The result is not merely error in this case, but also

considerable uncertainty about the scope of the substantive

obligations of automobile manufacturers to recall and

repair defective motor vehicles under the National Traffic

and Motor Vehicle Safety Act. Clarification of the scope

of the Act is a matter of obvious significance, both to the

public and to the automotive industry.

Furthermore, the decision below is of especial signifi-

cance in the administration of this important federal statute

because enforcement litigation under the Act is concentrated

in the District of Columbia Circuit. This is an archetypical

instance in which certiorari should be granted because the

court of appeals has erroneously decided an important

question of federal law which has not been, but should be,

decided by this Court.

1. Section 102(1) of the Safety Act empowers NHTSA

to issue recall directives, not for all vehicle defects, but only

for those defects which pose an “unreasonable risk” of

accidents, injury or death. The legislative history of the

Act demonstrates that Congress deliberately placed this

of proof once the government had established a prima facie case

(id., pp. 21a-23a, 32a). He therefore would have reversed and re-

manded the case for retrial under what he deemed the proper stan-

dard of proof.

14

restriction on its scope in the recognition that imposition of

any more stringent standard on manufacturers would re-

quire such enormous outlays for design, manufacture and

testing as to price the automobile outside the means of the

average consumer (see App. A, p. 14a). Selection of the

“unreasonable risk” standard also reflects Congress’ inten-

tion that recall orders would be issued only if found war-

ranted after a balancing of safety considerations and the

costs of compliance involved in each particular fact situ-

ation. Wheels, supra, 518 F.2d at 435; App. A, p. 12a;

see S. Rep. No. 1301, supra, at 6; Traffic Safety: Hearings

on S. 3005 before the Senate Comm. on Commerce, 89th

Cong., 2d Sess. 56, 411 (1966).° Inherent in this balancing

process is consideration of the various relevant factors,

including the remaining useful life of the vehicle model and

the expected severity of any accidents which might be caused

by an unremedied defect, discounted by the improbability

of their occurrence. Cf. United States v. Carroll Towing

Co., 159 F.2d 169 (2d Cir. 1947) (L. Hand, J.).

As the dissent below noted, however, the majority of the

court of appeals in this case has read the reasonableness

standard and the balancing test completely out of the statute.

Rather, by adopting a per se approach, the majority ruled

that evidence of the existence and degree of risk involved

with this vehicle model never should have been received at

all, let alone subjected to a balancing process.

The obligation of the district court in Safety Act cases

is to conduct a de novo trial of the reasonableness question,

taking into account the various considerations noted above.

Here the district court conscientiously carried out that

*“ Assessment of risk is a normal part of judicial and administra-

tive fact-finding” and “must upon the facts of each case.”

Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 18

ey 28 n.52 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941

15

duty, but the court of appeals nullified the trial court's

effort by substituting its own notion of a per se rule for the

trial court’s careful and reasoned findings and conclusions.

The appellate court’s per se rule is illogical and unsupport-

able under this court’s guidelines for the adoption of irre-

buttable presumptions.’ Its decision also manifestly con-

travenes the explicit intention of Congress in adopting the

Safety Act, which was to protect, not against all risks, but

only against “unreasonable”’ risks.

2. The fact that this is a case of first impression should

in no way inhibit the Court from granting certiorari. In-

deed, for at least two reasons, this case is unusually worthy

of review precisely because it is a case of first impression.

First, because enforcement litigation under the Act is con-

centrated in the District of Columbia Circuit, see pp. 18-19,

infra, the decision below will be followed to some degree in

all subsequent Safety Act litigation. The majority's deter-

mination to announce only an unexplained result, instead

of articulating meaningful standards to guide the district

courts in other cases, is particularly unfortunate, and will

confuse and inject error into the future administration of

the Act unless the errors below are corrected. Second, this

The t adoption of a se rule that all dis-

siliag tonating, dobooe anneal a eavenees risks under the Act

Fe ee ee ee eis

such a ~_ eee oe oS unreasonable

rules, which permit a to be established without

cuideatiany post, con ba justth {4-7 h

x i and analysis.” White Motor Co. v. United States, 372

¢ 253, 265 (1963) (Brennan, J., a. Only rarely will

practical experience be sufficient to permit ging

ableness

statutes poy > og ———. ee es which operate hems Se

o.,Cleelend B Bordo} Eincaionv Lef,414U , 414 U.S. 632 (1974) ;

Stanley v. S. 645 (1972

16

case presents a complete factual record upon which an

appellate court can review the balancing of competing con-

siderations required by the Act. If the majority’s per se

approach is permitted to stand and is extended to other com-

ponents of the automobile, as the government has already

suggested in another pending Safety Act case,"* the appel-

late record in subsequent cases will not be developed beyond

what is accumulated in the informal agency proceeding.

Accordingly, this is likely to be the case with the most

developed record upon which to consider the meaning of

“unreasonable risk.”

3. The majority’s holding that the government should

have been granted summary judgment on the basis of ma-

terial gathered in NHTSA’s administrative investigation

also raises significant due process problems. Section 109 of

the Act, 15 U.S.C. § 1398, exposes a manufacturer to a civil

penalty of up to $800,000 if it disagrees with NHTSA’s

recall order and forces the government to seek its enforce-

ment in district court. Section 155(c)(1), 15 U.S.C.

§ 1415(c) (1) (Supp. V 1975), also provides that a manu-

facturer may obtain a preliminary injunction against en-

forcement of that order, and thereby stay the accrual of the

civil penalty, upon proof that its failure to notify owners

was reasonable and that it is likely to prevail on the merits

at trial. In Ford Motor Co. v. Coleman, supra, the three-

judge district court determined that the civil penalty provi-

sions were constitutional, but only because a manufacturer

with a substantial, nonfrivolous challenge to the Adminis-

trator’s order could obtain a preliminary injunction which

would toll the assessment of the penalty while it litigated

the validity of the order in the district court.

"'See Memorandum in Support of the Motion of the Federal

Appellees for Summary Affirmance in United States v. General

Motors Corp., C.A. D.C., Nos. 76-1744 and 76-1745, on

from the decision in United States v. General Motors Corp., 417

F, Supp. 933 (D.D.C. 1976) (the Quadrajet case).

17

The decision below will exacerbate the burdens, identi-

fied in Coleman, that the statute imposes on the manufac-

turer at the preliminary injunction stage. The majority's

per se rule will be read back into the requirement that the

manufacturer demonstrate a likelihood that he will prevail

on the merits. Thus, in entire categories of cases in which

the manufacturer believes in good faith that the recall order

is not justified because of the absence of documented past

or predicted future accidents, he will be unable to toll the

imposition of penalties unless he can prove at the prelimin-

ary stage, not only that the evidence is at least in equipoise,

402 F. Supp. at 487, but also that the allegedly defective

component is not subject to an existing per se rule and that

a new irrebuttable presumption should not be extended to

that component.

The ruling below thus greatly increases the threshold

showing required of the manufacturer, especially in light

of the majority’s failure to articulate meaningful standards

as to when such per se rules are appropriate. It vitiates the

adequacy of the protection otherwise afforded by Section

155(c) by denying the manufacturer an effective oppor-

tunity to litigate, without exposure to substantial civil

penalties, the validity of an ex parte administrative order

it believes in good faith to be erroneous.” It is precisely

this type of barrier to litigation that the Due Process Clause

prohibits. See, c.g., St. Regis Paper Co. v. United States,

368 U.S. 208 (1961), aff’g. 285 F.2d 607 (2d Cir. 1960) ;

St. Louis, Iron Mountain & Southern Ry. v. Williams, 251

U.S. 63, 64-65 (1919); Wadley. Southern Ry. v. Georgia,

235 U.S. 651 (1915).

12]t is the government’s policy to seek assessment of the maxi-

mum penalty in every enforcement action. Amendments to the

National Highway Traffic Safety Act of 1966: Hearings on H.R.

7505, H.R. 5529, H.R. 4187, and S. 355 before the Subcomm. on

Commerce and Finance of the House Comm. on Interstate and

Foreign Commerce (Part 1), 93d Cong., 1st Sess. 388 (1973).

18

Rather than casting the constitutionality of a portion of

the Act in doubt by permitting the decision below to stand,

the Court should grant certiorari to review the purported

statutory basis for that decision.

4. The issue presented by this petition is fully ripe for

decision by this Court. Not only does the case come to

this Court on a fully developed trial record, as discussed

above, but, for reasons we shall now briefly set forth, a

conflict among the courts of appeals is highly unlikely to

arise in the future.

Section 155(a) of the current Act, 15 U.S.C.

§ 1415(a) (Supp. V 1975), provides that a government

enforcement action or any other action with respect to a

NHTSA notification and remedy order may be brought

only in the United States District Court for the District of

Columbia or for a judicial district in the state of incorpora-

tion of the manufacturer. To date, the government has

followed a de facto policy of filing all its enforcement

actions against auto manufacturers in the District of

Columbia.** Moreover, even when manufacturers have

attempted to litigate the validity of a notification order in

another district, by bringing an injunctive action before the

government filed its enforcement suit, those actions have

either been dismissed or transferred to the District of

Columbia once the government action has been filed.”

18For example, all the ing enforcement actions listed in

NHTSA’s Annual Report for 197, we pees in the United

States District Court for the District of bia. t of

Transportation, NHTSA, Traffic Safety ’76, at F-3 to F-4 (1977).

"See, e.g., General Motors Corp. v. Volpe, 457 F.2d 922 (3d

Cir. 1972), aff'g 321 F. Supp. 1112 (D. Del. 1970), dismissing the

manufacturer’s forcement review action on the ground that

the government's enforcement action in the District of Columbia

provided an adequate opportunity for review of all claims under

the Act. Indeed, in the instant case, petitioner’s pre-enforcement

action was transferred to the District of Columbia and consolidated

Ot Se SNES CE ST See p. 8 &

n.o, supra.

19

Section 155(a) now requires the consolidation of “all

actions (including enforcement actions)” brought with

respect to a single notification order in accordance with the

order of the court in which the first such action is brought.

The lower courts have adopted the position that all such

cases should be consolidated in the district court in which

the government filed its timely enforcement suit, regardless

of the order in which the suits were filed. See Ford Motor

Co. v. Coleman, supra, 402 F. Supp. at 486 & n.30$

Under other circumstances, the interest of economy in

the exercise of the Court’s discretionary jurisdiction might

suggest that the grant of certiorari be withheld until a con-

flict in statutory interpretation actually developed. Because

of the high probability that all future litigation under the

Act will be concentrated in the District of Columbia Circuit,

however, the absence of an outstanding conflict among the

courts of appeals should not persuade the Court to delay con-

sideration of this pressing issue. See, e.g., Schriber-Schroth

Co. v. Cleveland Trust Co., 305 U.S. 47, 50 (1938).

20 |

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be granted.

Joun H. PICKERING

JAMES ROBERTSON

MIcHat L. Burack

Jony F. Cooney |

Attorneys for Petitioner

General Motors Corporation

Of Counsel’

Otis SMITH

General Counsel

General Motors Corporation Appendices

WILMER, CUTLER & PICKERING

October 6, 1977

la

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1751

UNITED STATES OF AMERICA, APPELLANT

Vv.

GENERAL MOTORS CORPORATION, a Corporation

No. 75-1752

GENERAL MOTORS CORPORATION, a Delaware Corporation

V.

Brock ADAMS et al., APPELLANTS

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Actions Nos. 74-277 & 74-1053)

Argued September 23, 1976

Decided June 28, 1977

2a

Neil H. Koslowe, Attorney, Department of Justice, with

whom Rex E. Lee, Assistant Attorney General, Earl J.

Silbert, United States Attorney, and William Kanter,

Attorney, Department of Justice, were on the brief, for

appellants. Morton Hollander, Attorney, Department of

Justice, also entered an appearance for appellants.

James Robertson, with whom Michael L. Burack, Cor-

nelius J. Golden, Jr., and Frazer F. Hilder were on the

brief, for appellee.

Before WRIGHT, LEVENTHAL, and Ross, Circuit Judges.

Opinion for the court per curiam.

Opinion dissenting in part filed by Circuit Judge LEv-

ENTHAL.

PER CURIAM: The facts and circumstances surrounding

this case are fully stated in the dissent. While the court

agrees with much of Judge Leventhal’s scholarly opinion,

we believe that the Government’s motion for summary

judgment should have been granied by the District Court,

not only on the issue whether a defect existed in the

steering pitman arm of the 1959-60 model Cadillac auto-

mobiles, but also on the issue whether the defect was

related to motor vehicle safety. The evidence is uncon-

tradicted that General Motors sold six times as many

pitman arm replacement for the 1959-60 Cadillac models

as for adjacent model years; that steering pitman arm

failures have occurred while these models were being

driven; and that when the steering pitman arm fails, the

driver loses control of the car. We hold that, under the

statute, these uncontradicted facts demonstrate an “un-

reasonable risk of accidents” stemming from the defect.

15 U.S.C. § 1891(1) (1970).

The judgment of the District Court is reversed and

these cases are remanded for determination of appropri-

ate relief.

So ordered.

3a

LEVENTHAL, Circuit Judge, dissenting in part: In the

principal case before us, the government seeks enforce-

ment against General Motors of a defect notification

order, as well as fines. The district court denied sum-

mary judgment to the government. After trial, it held

for General Motors.

The majority concludes that the Government should

have been given a summary judgment, and remands for

determination of appropriate relief. ©

I concur in the view that the district court judgment

in favor of General Motors cannot stand. In my view,

however, the case is one that is nut appropriate for

summary judgment and requires a retrial in accordance

with what I consider to be sound principles. These prin-

ciples are to some extent set forth in our prior opinion

in the Wheels case. United States v. General Motors

Corp., 171 U.S.App.D.C. 27, 518 F.2d 420 (1975)

[Wheels]. I think it would be most convenient if I

proceed at this point as if I were writing an opinion

for the court—presenting what I would consider the

correct disposition.

This case concerns the standard for proving that a

defect in an automobile model “relates to motor vehicle

safety” within the meaning of the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et

seg. (the Act). The National Highway Traffic Safety

Administration (the Administration) ordered General

Motors (GM) to issue defect notifications’ concerning

the pitman arms of 1959 and 1960 Cadillacs, which break

as a result of steering stress, causing sudden loss of

steering control. An action seeking enforcement of this

order was tried de novo’ in the district court with the

trial judge as the finder of fact.

1 See note 7, infra.

2 Jurisdiction over this enforcement action is based on 15

U.S.C. 1399(a). See note 7, infra.

da

The existence of a defect was conceded. GM offered

proof that the pitman arm failures occur only in high

stress situations, which involve low speed and parking

maneuvers. The government introduced evidence of at

least one incident in which pitman arm failure at lesser

steering stress produced a dangerous situation as well as

expert testimony on normal human reaction to loss of

steering at low speed. GM presented a “risk analysis”

which predicts the likely number of future injuries cr

deaths to be expected in the remaining service life of the

affected models.

The district court found that GM had successfully re-

butted the government’s “slim prima facie case” on the

basis of the risk analysis. In so deciding, the district

court applied an incorrect legal standard as to the bur-

den of presenting data of past harm caused by the de-

fect. The correct standard leads to the conclusion that

it was “clearly erroneous” for the district court to find

that GM met its burden of rebutting the government’s

prima facie case.

I. BACKGROUND

A. Administrative Action

In 1972, acting on consumer complaints brought to

its attention by the Center for Auto Safety, the Admin-

istration began an investigation of pitman arms failures

in 1959-60 Cadillacs. The pitman arm is a critical com-

ponent of the steering system. It transfers the angular

motion of the steering wheel and shaft to lateral move-

ment of the drag link and tie rods which turn the front

wheels. When the pitman arm fails, steering control is

suddenly lost. In September, 1972, the Administration

requested information from Cadillac’s manufacturer, GM,

about the pitman arm. GM’s summary of its investiga-

tion stated that, as of September 1972, it had sold ap-

proximately six times as many replacement pitman arms

—

5a

for the 1959-60 models as for the adjacent years’ models.’

Furthermore, the GM presentation showed that 1959-60

pitman arm design was quite different from that of those

models and that on June 10, 1960, GM changed the

hardness specification for the 1959-60 pitman arm “after

end of regular production on service replacement parts,”

“to improve performance” under extreme loads.‘

' During 1973, the Administration reviewed the materi-

al presented by GM and customer complaints, contracted

for testing of pitman arms,’® and conducted hearings in

which GM participated. On January 10, 1974, the Ad-

ministrator notified GM that he had “determined that a

defect which relates to motor vehicle safety exists with

respect to the steering pitman arm on 1959-60 model year

Cadillac automobiles, in that these pitman arms are sub-

ject to sudden, and catastrophic failure, causing loss of

steering control, and resulting in an unreasonable risk of

accidents, deaths, and injuries to persons using the high-

ways”.° The Administration directed GM to notify own-

® The figures for the numbers of replacement pitman arms

sold are:

Model years Pitman arms sold

1957-58 4,519

1959-60 26,424

1961-62 4,423

Summary of General Motors review with the National High-

way Traffic Safety Administration Friday, September 29,

1972 at fig. 11, Government exhibit 4, tab 2.

‘Id. at fig. 21.

* The phrase “pitman arms” is used hereafter to mean pit-

man arms installed in 1959 and 1960 Cadillacs.

* Letter from James B. Gregory, Administrator of the

National Highway Traffic Safety Administration to E. N.

Cole, President of GM at 2, Government exhibit 3, tab 34.

6a

ers of the affected Cadillacs of the defects and urged

GM to recall them for replacement at GM’s expense.’

B. Enforcement Action

1. Preliminary Matters

On January 11, 1974, GM filed suit in the District

Court for the Eastern District of Michigan to set aside

the Administration order.* A temporary restraining or-

der (TRO) against the effectuation of the January 10

order was granted on the same day, but after a hearing

the TRO was vacated and a preliminary injunction de-

nied.” That same day, Feb. 13, 1974, the government

commenced an enforcement action in the District Court

for the District of Columbia.”® In addition to enforce-

* This order was issued by authority of 15 U.S.C. 1402(e)

(1970). The Act was amended on Oct. 27, 1974 by Pub. L.

93-492. The defect notification provision, § 1402, was repealed

and replaced by 15 U.S.C. §§ 1411-1420. Enforcement of

notification order is governed by § 1415. The new provisions

require the manufacturer to remedy the defect without charge,

15 U.S.C. § 1414(a).

The 1974 amendments do not apply to the present case

since the notification was required to be issued “before the

effective date” of the amendments. Pub. L. 93-492, § 102(c),

88 Stat. 1477. However, while the 1974 amendments changed

the procedures and remedies associated with a safety related

defect, they did not chanye the definitions of “defect” and

“relate[d] to motor vehicle safety” which are at issue in this

case. Therefore, these views on the standard and burden of

proof of safety-relatedness have full prospective application.

See United States v. General Motors Corp., 171 U.S.App.

D.C. 27, 43 & n. 72, 518 F.2d 420, 486 & n. 72 (1975) [herein-

after cited as Wheels].

mm —— Motors Corp. v. Brinegar, Civ. No. 4-70939 (E.D.

ch.).

*Id., Order Denying Motion for Preliminary Injunction,

(Feb. 13, 1974), J.A. 26.

*° United States v. General Motors Corp., Civ. No. 74-277

(D.D.C.) [hereinafter cited as Pitman Arm].

7a

ment of its notification order, the government sought im-

position of a $400,000 civil penalty, pursuant to § 109(a)

of the Act.” .

Both parties sought a change of venue of the other’s

case to their chosen forum. The parties and judges rec-

ognized that the interests of justice and convenience of

all called for consolidation of the cases raising identical

issues. In a joint order of July 8, 1974, the district

courts ordered the cases consolidated in the District of

Columbia.”

2. Denial of summary judgment

Both parties moved for summary judgment under Fed.

R.Civ.P. 56(c). An action for enforcement of a notifica-

tion order, under § 110(a), 15 U.S.C. § 1899(a), is tried

de novo in the district court. The government has the

burden of proof on the two elements required by the

Act: 1) that a “defect” exists and 2) that the defect is

“related to motor vehicle safety,” i.e. involves an “unrea-

sonable risk of accidents occurring as a result of the de-

sign, construction, or performance of motor vehicles

14

215 U.S.C. §1398(a) (1970). The 1974 amendments.

raised the maximum penalty to $800,000, 15 U.S.C. § 1398(a).

See note 7, supra and note 64, infra.

12 Order in General Motors Corp. v. Brinegar, Civ. No.

4-70939 (E.D. Mich. July 8, 1974) and Pitman Arm (D.D.C.

July 8, 1974), J.A. 44-46. The order was based on the ability

of Judge Gasch to deal with the cases substantially ear!'er.

18 Wheels, supra 171 U.S.App.D.C. at 46, 518 F.2d at 438.

See also § 10(e) (2) (F) of the Administrative Procedure Act,

5 U.S.C. § 706(2) (F).

* The Act defines:

“Defect” includes any defect in performance, construc-

tion, components, or materials in motor vehicles or motor

vehicle equipment.

[Continued]

Sa

The district court effectively granted summary” judg-

ment in favor of the government on the issue of existence

of a defect. It based that judgment on 1) the dispro-

portionately high replacement pitman arm sales, in the

absence of any serious contention that this was due to

causes other than a disproporationately high rate of pit-

man arm failures, and 2) tests performed by both parties

showing that “the pitman arm can fail from metal fa-

tigue after a large number of high stress maneuvers

such as occur in parking and turning.” ** On appeal,

GM does not challenge this determination.

On the issue of safety-relatedness, the district court

denied summary judgment to both sides. It acknowledged

that:

[t}here is a certain appeal to the government’s argu-

ment that a defect which may result in a loss of

steering control is, ipso facto, a safety-related de-

fect under the Act. One need only ask whether he

would consider loss of steering control even at a very

slow speed, a reasonable or unreasonable risk.

However, GM contended that the pitman arm failures

could only occur in low-speed, high-stress maneuvers and

that the absence of reported instances of death or injury

resulting from pitman arm failure in the long history

* [Continued]

15 U.S.C. § 1891(11) and

“Motor vehicle safety” means the performance of motor

vehicles or motor vehicle equipment in such a manner that

the public is protected against unreasonable risk of acci-

dents occurring as a result of the design, construction

or performance of motor vehicles and is also protected

against unreasonable risk of death or injury to persons in

the event accidents do occur, and includes nonoperational

safety of such vehicles.

15 U.S.C. § 1891(1).

8 Pitman Arm, 65 F.R.D. 115, 117-18 (D.D.C. 1974).

1* Jd. at 119.

— At et wt

9a

of the affected cars showed an absence of “unreasonabl

risk.” The district court stressed the standard of an

unreasonable risk and the “commonsense” approach to

safety questions under the Act.” It concluded:

This is an issue af fact which cannot be resolved

by logic alone. And it is an issue of material fact

under the law of summary judgment.”

3. The trial

A non-jury trial of the issue of the safety-relatedness

of the pitman arm defect was held from February 3

through February 11, 1975. Both sides presented metal-

lurgical expert testimony on the process of fatigue-

induced failure in pitman arms and the circumstances

in which pitman arm separation could occur. The gov-

ernment presented the testimony of a driver, Karen Ar-

buckle, who had recently experienced a loss of steering

during a 90° turn at 10-15 mph due to pitman arm

failure in her 1969 Cadillac.” In the incident, no one was

injured. The government also presented the testimony

** See Wheels, supra, 171 U.S.App.D.C. at 42-43, 518 F.2d

at 435-36.

8 Pitman Arm, supra, 65 F.R.D. at 120.

* The district court summarized the evidence on this

incident thusly :

The US also offered the experience evidence of Mrs.

Karen Arbuckle of Des Moines, Iowa. Mrs. Arbuckle

testified that on November 7, 1974, the steering on her

1960 Cadillac failed without warning as she was making

a right hand turn, and her vehicle proceeded diagonally

into the curb on the opposite side of the street into

which she was turning. Fortunately the oncoming traffic

lane was empty so there was no collision. An examination

of the steering system revealed a separation of the pit-

man arm resulting from fatigue-induced failure. Mrs.

Arbuckle estimated that she was traveling between ten

and fifteen miles per hour at the time she experienced

loss of directional control.

10a

of a professional driver and two experts in human reac-

tions on the danger of sudden loss of steering, even in

low speed maneuvers. One of the latter experts, Duncan

Miller, testified that the median time between pitman

arm failure in 5 mph U-turn and commencement of

braking “‘would be in excess of 1.6 second.” *® Raymond

Caldwell, the professional driver, testified from tests

with an artificially separable pitman arm that the car

entered the opposing lane of traffic 11% seconds after

separation in a 5 mph 90° turn, and % of a second in

a 10 mph U-turn.”

In rebuttal, GM offered further evidence, a “risk analy-

sis” by one of its experts in fracture mechanics, Dr.

Alan Tetelman.** From this analysis, based on data in

GM’s files on pitman arm failures and general accident

data, Dr. Tetelman predicted that for all the approxi-

mately 40,000 affected Cadillacs still on the road, during

their remaining service life, there would be a very small

chance (less than 1%) of a fatality. His analysis pro-

jected only one incapacitating and one non-incapacitating

injury. The government objected to the data used by

Dr. Tetelman and called a statistical expert to criticize

his methodology and the significance of his result.

On April 25, 1975, the district court filed its findings

of fact and conclusions of law in these cases. The court

found that the government had:

made out a slim prima facie case on the testimony

of Mrs. Karen Arbuckle concerning a recent pitman

arm failure in her 1960 Cadillac and the metalur-

gical and metal fatigue tests and testimony of Dr.

Volker Weiss. GM countered with the risk analysis

and fracture mechanics tests and testimony of Dr.

Alan Tetelman. Since the government as plaintiff

*° Tria! transcript [hereinafter cited as Tr.] 342, J.A. 224.

= Tr. 281-82, J.A. 186-87.

22 See section IV.A, infra.

ey Cg

lla

did not bear its burden of proof, the Court finds

that the pitman arm defect in model year 1959-60

Cadillacs does not create an unreasonabe risk of

accidents, injuries or death, and concludes that Gen-

eral Motors need not issue a defect notification to

owners of those automobiles.”

On April 28, 1975, the district court entered an order

that set aside the Administrator’s order to GM to issue

defective notices and dismissed the cases.**

Il. THE STATUTE

A. Safety Related Standard

This case presents issues of the Act’s defect notifica-

tion provisions not resolved in Wheels, 171 U.S.App.D.C.

27, 518 F.2d 420 (1975).

Wheels involved the standard of proof of a “defect” in

a type of pickup truck wheel; the defect, if established,

undisputedly related to safety. Here, a defect in the pit-

man arm is conceded. The issue is safety-relatedness,

the standard for determining whether the defect is “re-

lated to motor vehicle safety.” Wheels came to us on

summary judgment, whereas the case at bar was tried

to the court, after summary judgment was properly de-

nied, and the issue is whether the district court applied

the correct standard on the burden of proof. In spite

of these differences, both cases require examination of a

provision employed by Congress to enhance safety in

connection with automobiles. Wheels provides guidance

in elucidating the standard of proof for requiring a de-

fect notification.”

23 Pitman Arm, supra, Memorandum at 3-4 (Apr. 25, 1975),

J.A. at 699-700.

2+ Pitman Arm, supra, Order (Apr. 28, 1975), J.A. 711.

2s Wheels, supra, 171 U.S.App.D.C. at 39-44, 518 F.2d at

432-37.

12a

The key concept in the statutory scheme is that of “un-

reasonable risk of accidents.” As we concluded by exam-

ination of the legislative history in Wheels, this concept

is to be applied in a “commonsense” manner, balancing

safety benefits against economic costs.”

Section 1 of the Act states its overall purpose:

Congress hereby declares that the purpose of this

chapter is to reduce traffic accidents and deaths

and injuries resulting from traffic accidents.’

This broad purpose is reflected in the central provision

er to this case which contains this definition in

102(1):

(1) “Motor vehicle safety” means the performance

of motor vehicles or motor vehicle equipment in such

a manner that the public is protected against unrea-

sonable risk of accidents occurring as a result of the

design, construction or performance of motor vehicles

and is also protected against unreasonable risk of

death or injury to persons in the event accidents do

occur, and includes nonoperational safety of such

vehicles.**

It may be noted that the statutory language relates to

protection against an unreasonable risk of “accidents,”

and separately to protection against “unreasonable risk

of death or injury” in the event an accident occurs.

*° Id. at 40-41, 518 F.2d at 433-34. Only a fraction of the

affected Cadillacs are still on the road. In this respect the

cost of precautionary repair and the risk thereby averted are

diminished proportionately. If, as appears from the record,

the cost of replacing the pitman arm is relatively modest, it

may well be that the administrative expense in ascertaining

and notifying the owners of 1959-60 Cadillacs still in use may

be significant in comparison to the replacement costs.

7 15 U.S.C. § 1381.

** 15 U.S.C. § 1391(1).

l3a

Senator Mondale, the author of the defect notification

amendment in the Senate bill, stated in debate:

I do not consider it necessary to speculate whether

a wheel falling off without warning is a safety

hazard. Obviously, it is .... It is my view that

the fair-warning provision is essential to make sure

that the automobile consumer is warned of hazards

such as this.

It is only fair, in view of the vast organizations

established for the sale and service of these auto-

mobiles to notify the owner in clear and unmistakable

terms, once a safety defect is known that a safety

hazard is involved, what it is, and what corrective

steps can be taken.”

The House Report on the defect notification section

states:

This section was included to afford a means for

uniform and prompt notification to vehicle owners

of the discovery of any defects related to safety.

“Defect” is a defined term which includes any de-

fect in performance, construction, components, or ma-

terials in motor vehicles or motor vehicle equipment.

The provisions of this section do not alter other

courses available to the Secretary, with respect to the

deficiencies which necessitate notificution, such as the

imposition of a civil penalty or the seeking of injunc-

tive relief. It is the committee’s intention that the

Secretary will exercise his authority under this sec-

tion to publish notices and information concerning

defects in those situations where so doing will bring

about a higher level of safety. In this connection, the

committee is confident that the manufacturers will

be active in notifying purchasers and users so that

defects will be corrected as quickly as possible.”

2° 122 Cong. Rec. 14247 (June 24, 1966).

% H.R. Rept. 89-1776 at 28 (1966) (emphasis added).

l4a

Out of any manufacturing process, some products are

bound to be “lemons.” These failures may be due to flaws

in the design, construction (including occasional human

error on the production line) or inspection process. When

the defects are occasional or isolated, the risk associated

with them is part of the ordinary danger of operating an

automobile; minimizing them is one aspect of the quality

of a manufacturer’s product which consumers choose to

pay for. Total elimination of this risk would require a

standard of design, construction, and testing that would

produce a purchase price so prohibitive that it cannot be

taken as the contemplation of Congress. And that ob-

tains even though such a defect may be in a vital com-

ponent and result in a safety risk.

However, the matter stands quite differently where it

appears that the defect is systematic and is prevalent in

a particular class of cars. Such a defect may be iden-

tified by an unusually high rate of failures in actual oper-

ation or by tests showing that failure is likely under

normally encountered circumstances.

In the event of a systematic defect, which leads to

failures in a vital component, such as is the case with the

pitman arms causing sudden loss of steering, this is prima

facie an “unreasonable risk” for which Congress. pre-

scribed the additional protection (over and above a manu-

facturer’s customary quality control) of notification, and

now, recall.** Proof of the pitman arm defect, which leads

to its failure and loss of steering under foreseeable driv-

ing conditions, creates a strong presumption that the de-

fect “relates to motor vehicle safety.” The presumption

is rebuttable. The reasons for rejecting the government’s

contention that such a defect is per se related to safety

are set out below. Certainly, however, if this case had

arisen near the beginning of the cars’ service life, when

there was little real-life experience with the cars, such

*! See note 7, supra.

l5a

proof would suffice to obtain enforcement of a notifica-

tion order without waiting to see how many people would

be hurt or killed.

With respect to 1959-60 Cadillacs, there was no prompt

action in response to the pitman arm defect to notify

owners or recall the car for repairs, nor has there been to

date. Rather, during the period that has already elapsed

—the bulk of the cars’ service life—there have un-

doubtedly been many pitman arm failures; the safety

consequences of those failures are unknown, unknown to

the parties and to the courts.

During that period, GM, which knew early on of an

unusual number of pitman arm failures,** had the oppor-

tunity to develop data concerning experiences with pit-

man arms, the universe of failures and consequences

thereof. This it had the power to acquire, as a manu-

facturer, by suitable notice to and inquiry of its dealers

and, untimately, it customers.

Instead, GM relies, in effect, on the lack of notifications

sent to it on the initiative of consumers, i.e. on the dearth

of complaints.

B. Burden of Rebuttal

The government’s prima facie case is not a conclusive

demonstration of a safety-related defect. GM should have

the opportunity to show that the failures occur in cir-

cumstances in which loss of steering is not dangerous. In

this case, GM maintains that the pitman arms fail only

where the steering mechanism is subject to high stress,

typically at low speeds and parking. GM further claims

that loss of steering in such maneuvers is not dangerous.

These contentions were supported by an offer of proof in

82 See text at note 4, supra.

l6a

affidavit form, and so the district court properly de-

nied the government’s motion for summary judgment.”

GM offered two types of evidence in support of its two

part contention which constitutes its rebuttal case. These

two strands are discussed in Parts III & IV of this

opinion in some detail, because they serve as models of

types of evidence available to a manufacturer coping with

the burden of rebuttal.

The first type of evidence was offered by GM in sup-

port of its contention that pitman arm failures occur es-

sentially only under high stress. This evidence relates to

the mechanism responsible for pitman arm failures. The

evidence stems from tests on Cadillacs with the defec-

tive pitman arms and metallurgical interpretation of

failed pitman arms. One point illustrated by this type

of evidence is the possibility for a manufactuer to meet

* See Wheels, supra, 171 U.S.App.D.C. at 47-53, 518 F.2d

at 440-46.

Summary judgment in favor of the government was granted

in a case with some similarities to the present one, albeit

one which manifested more dramatic indication of the defect.

United States v. General Motors, 417 F. Supp. 933 (D.D.C.

1976) (Quadrajet Carburetor). There was extensive experi-

ence with the affected cars, the model involved having “used

up” about 83% of its service life. The carburetor defect,

which GM apparently ackne ledged, caused the engine to fail

and gasoline leakage, wh 4 led to the occurrence of at least

70-300 known fires in t.e engine compartment. The incidents

presented were potentially very dangerous, but in fact re-

sulted in only minor injuries. GM “asserted that the incidence

of future plug failure would be negligible, and that based on a

statistical prediction there will be less than one injury and

no deaths as a result of the defect.” Jd. at 935. Since the

record in that case is not before us, it is not possible to form

any opinion whether GM’s claim of a disputed material fact

precluded summary judgment. The facts of the Quedrajet

Carburetor case raise the possibility that the manifestation of

the defect might be so obviously dangerous that summary

judgment might be proper.

17a

its burden of rebuttal, on at least a portion of the over-

all safety-related issue, entirely by experimental proof,

i.e. testing and metallurgical analysis, without the ne-

cessity of offering experimental proof based on a survey

of significant amounts of road experience.

Both parties offered experimental evidence of this first

type. Both put on witnesses with expertise in metallurgy.

The government also offered experts in drivers’ reac-

tions; the manufacturer’s supplement to the metallurgical

evidence was the risk analysis previously noted. Both.

sides interlard their experts with projections on the

ultimate issue of the magnitude of risk based on common

sense.

As to driving expertise, central to Dr. Tetelman’s

risk analysis, the government relied on the Arbuckle

incident * to verify that the risk of danger from pitman

arm failure is not merely theoretical. There are situa-

tions, after all, in which even one instance verifies a

general proposition.”

A manufacturer undertaking to rebut the govern-

ment’s prima facie case by an empirical showing based

on experience accumulated during a substantial period

of automobile operation must be able to make a valid pre-

diction of negligible future risk from operation of the cars

based on a significant data base. GM attempted to make

this prediction for the 1959-1960 Cadillacs still in serv-

ice through Dr. Tetelman’s “risk analysis.” The question

is whether this analysis, essentially a statistical inference

and prediction, rests on a data base adequate to carry

the manufacture’s burden of rebuttal.

* See note 19, supra.

** [I]t is enough to validate the principle of the electric

light bulb if only one is seen at work.

International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C.

411, 443, 478 F.2d 615, 647 (1973).

18a

There is no legal requirement at present on either the

government or manufacturers to keep comprehensive data

on automobile accidents, such as the Federal Aviation

Administration maintains on commercial aviation. The

store of recorded experience must nevertheless be signifi-

cant if it is to serve as the foundation for empirical re-

buttal by a manufacturer. This requirement is a simple

matter of the reliability of the rebuttal proof. And there

is justice in this allocation to the manufacturer of the

burden of compiling significant data on the causes and

consequences of mishaps in its cars. Manufacturers have

the channels, through their dealers, and the business mo-

tivation of good will and customer satisfaction, to acquire

and maintain significant data on performance.”

III. IssuE OF WHEN PITMAN ARM FAILURES OCCUR

A. Evidence

GM contends that pitman arm failures occur essentially

only in high stress maneuvers. At trial, GM presented

** We have held that the burden is shifted where evidence

pertinent to the issue is particularly within the knowledge

of the defendant, International Harvester Co. v. Ruckelshaus,

155 U.S.App.D.C. 411, 489, 478 F.2d 615, 643 (1973). Cf.

res ipsa loquitur cases concerning proof of negligence in

which the burden is shifted to the defendant(s) due to his.

(their) greater access to the relevant evidence, e.g. Ybarra

v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944).

A final point is the interrelation of the manufacturer’s

burden of rebutta! of the government’s prima facie case to the

ultimate issue in this case—whether or not to require action

in the interest of the public’s safety. Justice Harlan explained

the role of the standard (more generally, the burden) of proof

in effectuating society’s choice between the two types of po-

tential error in a judgment:

the choice of the standard for a particular variety of ad-

judication does, I think, reflect a very fundamental

assessment of the comparative social costs of erroneous

factual determinations.

In re Winship, 397 U.S. 358, 370 (1970) (Harlen, J., con-

curring).

a +

—_—

19a

expert metallurgical evidence on the mechanism by which

pitman arm failures occur. Dr. Kenneth Packer and Dr.

Alan Tetelman testified that the fatigue-induced failure

begins with a crack in the “necked down” portion of the

arm, where the cross-section is smallest. The crack propa-

gates as stress is applied in various steering maneuvers;

the propagation rate increases with greater stress and

size of existing crack(s). When a stress is applied which

the intact area cannot sustain, the pitman arm fails.

This process is called brittle fracture.

GM conducted tests to determine the stress felt by the

pitman arm in various driving situations.” Both sides

used these measurements in their analysis. The crucial

point is that the load is highest in quasi-stationary (park-

ing) and slow maneuvers, such as a 5 mph U-turn.

The stress in these maneuvers is over 2900 pounds, while

in maneuvers over 10 mph, even jolting ones, the stress is

close to 1000 pounds or less.

GM’s experts presented a theory of “proof testing”

which indicates that pitman arm failures will occur only

ad Car Maneuver Pitman Arm Load (lbs)

70 mph slow lane change 212

70 mph fast lane change 412

40 mph hard cornering 564

30 mph moderate S-turns 470

15 mph 90° turn 670

25 mph pothole 974

normal parking 2237

parking with manual effort

(58 Ibs rim pull) 2982

35 mph Belgian blocks 437

(55 mph) stops on chatter bumps 750

(45-55 mph) cornering on chatter

bumps 1025

5 mph U-turns 2144

5 mph driveway maneuver 2330

N.L. Keller, Pitman Arm Load Determination in a 1960

Cadillac, Final Report at 63 (April 3, 1974), J.A. 632.

20a

in the high stress, low speed maneuvers. In normal oper-

ation, the steering mechanism is involved in a series

of high and low stress events. The high stress events

“proof test” the pitman arm. If a crack is developing,

the pitman arm will fail when a high stress is applied

exceeding the strength of the remaining cross section.

Dr. Tetelman testified that a Cadilluc would have to en-

counter at least 4000 potholes or many turning ma-

neuvers at moderate or high speed without ever parking

to permit the crack to extend to the point where it could

fail above low speed.“ This theory was supported by

GM’s experts’ inspection and interpretation of the frac-

tured surface of several pitman arms which had been

made to fail in tests. They testified that the intact area

before the final failure was about half of the original

cross-sectional area. This is consistent with their view

that the pitman arms would tend to fail with a relatively

large intact area, under the influence of a large stress.

The government’s metallurgical expert, Dr. Volker

Weiss, disagreed with GM’s experts in both their view of

the failure mechanism and interpretation of the failed pit-

man arm surfaces. Dr. Weiss disputed the applicability

of “proof testing,” based as it is on a brittle fracture

process. He testified that pitman arms can deform plastic-

ally at high stress; this means, apparently, that with a

certain application of high stress, a pitman arm can be

seriously weakened, but not fail until application of the

final blow at moderately low stress. He interpreted GM’s

test-failed pitman arm” as having an intact cross sec-

tion just prior to separation on!y a fraction (less than

one-fifth) of the 50% figure testified to by Dr. Packer.“

Dr. Weiss gauged this previously intact area to have been

* Tr. 702-705C, J.A. 347-53.

*GM Exhibits 12 & 15, J.A. 645-46.

“ Compare Dr. Weiss’s testimony, Tr. 461-65, J.A. 265-69,

with that of Dr. Packer, Tr. 552-60, J.A. 300-08.

2la

roughly circular with a diameter of about 14 of an inch,

which agreed with his previous examination of pitman

arms that failed in actual use, including the Arbuckle pit-

man arm. He used this figure in preparing pitman arms

for experiments in which separation occurred at final

applied loads of less than 300 pounds.** GM argued that

Dr. Weiss’s technique of machine notching the test pitman

arms made them unrepresentative of pitman arms with

real cracks, while Dr. Weiss maintained that this dif-

ference was not significant in that a given size crack

would weaken the arm more than a notch of the same

size.*?

B. Findings and Role of the Trial Court

The district court found, on the issue of unreasonable

risk of failure above low speed that the government had

not met its burden of proof. It reasoned:

The allegation that Dr. Weiss’ experiments were

not “true to life” was never rebutted by the govern-

ment. Thus the “battle of the experts” was a stand-

off. The government did not show by a proponder-

ance [sic] of the evidence that a fatigue crack would

normally propagate so far that the remaining cross-

section could break under normal or high speed ma-

neuvers.**

Since the issue of when pitman arm failures occur is

part of GM’s rebuttal case,“ this conclusion reflects an

incorrect allocation of the burden of proof. In general,

under Fed. R. Civ. P. 52(a), the appellate court is bound

by the district court’s findings of fact unless they are

“ Tr. 124, J.A. 132.

“Tr. 123, 125, 145, J.A. 131, 138, 142.

** Pitman Arm, supra, Memorandum at 11 (Apr. 25, 1975),

J.A. 707.

** See section II.B, supra.

22a

“clearly erroneous.” ** The scope of review is narrower,

and particular caution is indicated, where credibility

of witnesses is involved.“* However, “insofar as that

conclusion derived from the court’s application of an im-

proper standard to the facts, it may be corrected as a

matter of law.” “’

** A finding is “clearly erroneous” when although there is

evidence to support it, the reviewing court is left with the

definite and firm conviction that a mistake has been com-

mitted.

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

** Like any other issue of fact, final determination requires

a balancing of credibility, persuasiveness and weight of

evidence. It is to be decided by the trial court and that

court’s decision, under general principles of appellate re-

view, should not be disturbed unless clearly erroneous.

Particularly is this so in a field where so much depends

upon familiarity with specific scientific problems and

principles not usually contained in the general storehouse

of knowledge and experience.

Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S.

605, 609-10 (1950). See also Zenith Radio Corp. v. Hazeltime

Research, 395 U.S. 100, 123 (1969) ; Jackson v. United States,

122 U.S.App.D.C. 324, 327, 353 F.2d 862, 865 (1965).

** United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9

(1963). We have summarized the “clearly erroneous” stand-

ard, concluding as follows:

On the other hand, a finding is “clearly erroneous” if it

is without substantial evidentiary support or if it was

induced by an erroneous application of the law. Beyond

that “[fa] finding is ‘clearly erroneous’ wien although

there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm con-

viction that a mistake has been committed.” In reviewing

the trial judge’s decision in this case, then, we must look

to all of the evidence of record to determine whether the

findings can pass muster. And in making that determina-

tion, we also bear in mind that conclusions of law do

not find shelter in the “clearly erroneous” requirement.

[Continued ]

23a

The district court was affected by its apprehension

that the government had failed to rebut the allegations

that Dr. Weiss’s experiments were not “true to life.” By

the same token, the court should have been troubled by

the absence of GM’s rebuttal to the Arbuckle incident.

The court was presented with conflicting testimony of

experts as to whether pitman arms fail virtually only

in high stress situations. Mrs. Arbuckle gave testimony

of a real life event which supported the government’s

theory. According to GM’s own measurements, that pit-

man arm failure occured at low stress.“* GM seeks to dis-

miss the Arbuckle evidence as “only one incident of al-

leged pitman arm failure.”** This misses the point.

Where there is a choice between theories which say

that something is possible or impossible, there is special

significance in a real life incident, albeit a single in-

stance, in which it has happened.

** [Continued]

Case v. Morrisette, 155 U.S.App.D.C. 31, 38-39, 475 F.2d

1300, 1307-08 (1973). See also Wright & Miller, Federal Prac-

tice and Procedure: Civil § 2585 (1971).

“* The Keller table, supra note 37, gives a stress of 670 Ibs.

for a 15 mph 90° turn. GM attempts to bring the Arbuckle

incident into the low speed class, stating:

[a] Government expert witness (Raymond Caldwell)

testified that a Cadillac speedometer reads 12 to 13 mph

at a true speed of 10 mph. Mr. Arbuckle’s 10 to 15 mph

reading therefore corresponds to a true speed of from 8 to

11 mph and decreasing.

GM Br. at 12, n. 12. There is no findirig of the trial court

to the effect of a reduced Arbuckle speed. Furthermore, there

is no listing in the Keller table for a 10 mph 90° turn—a

commonplace maneuver. Failure to introduce this datum

which is essential to gauging the impact of this reduced speed

argument can only be interpreted to show that the datum

would be unfavorable to GM, i.e. that at best (for GM), the

applied stress would remain in the low (1000 lbs. or less)

range.

* GM Br. at 12.

24a

The district court referred to the Arbuckle incident

in making its overall balance of the risk from pitman

arm failures,” but did not gauge the effect of the occur-

ence on the supposed “stand-off” in the “battle of the

experts.”

Apart from the application of an incorrect burden of

proof, there is a problem in the district court’s cursory

treatment of the when-pitman-arms-fail issue as a stand-

off. The mere fact that experts disagree does not mean

that the party with the burden of proof loses. The finder

of fact has to make the effort to decide which side has

the stronger case. This can be based on the demeanor of

the witnesses (if so, the trial judge should say so) or

the intellectual strength of the evidence and arguments

based thereon.

While an appellate court is limited in its review of

factual findings, it may rightfully consider whether the

trial judge has weighed and appraised the case in the

light of the “whole record.” There may be cases of true

equipoise of evidence, but this should not be used as the

ground of decision unless there is a reasoned conclusion

that the efforts of the trial judge at weighing evidence

leave no alternative.

The obligation on the trial judge to make this effort

and judgment is particularly pronounced in this type

of case, involving a regulatory process to safeguard pub-

lic safety prospectively. Although an agency is involved

in bringing the case, there is no administrative decision-

making. The district court must decide the issue of

whether there is a safety-related defect de novo. Such

a safety case calls for more than cursory application of

% Therefore the government’s demonstration that the

Arbuckle-type experience has happened did not prove

that it would happen sufficiently often to create an un-

reasonable risk to safety. On the contrary, GM offered

Dr. Tetelman’s risk analysis as evidence that it will not.

Pitman Arm, supra, Memorandum at 13 (Apr. 25, 1975),

J.A. 709.

25a

traditional burden of proof concepts. Rather, it requires

a searching inquiry by the trial judge of the totality of

the evidence in the case. On the basis of this evidence,

he must go through the intellectual process of resolving

the issues, rather than throwing up his hands in the face

of conflicting evidence.”

In the course of this inquiry, the judge’s role in elicit-

ing evidence may go beyond asking questions of wit-

nesses. The active role of the federal judge in criminal

trials is well established.“ The similar considerations

5! This conclusion is in the context of a trial and for the

purpose of applying the correct legal standard. There is,

of course, no requirement that the judge satisfy himself that

his conclusion represents “scientific reality.” Rather, what is

required is careful analysis and weighing of the evidence

presented to reach a factual conclusion adequate for applica-

tion of the proper legal standard.

5? Our cases have consistently recognized the important

role the trial judge plays in the federal system of crim-

inal justice. “[T]he judge is not a mere moderator, but

is the governor of the trial for the purpose of assuring its

proper conduct and of determining questions of law.”

The precepts of fair trial and judicial objectivity do

not require a judge to be inert. The trial judge is properly

governed by the interest of justice and truth, and is not

compelled to act as if he were merely presiding at a

‘sporting match. He is not a “mere moderator.” As Jus-

tice Frankfurter put it, “[f]ederal judges are not

referees at prize-fights but functionaries of justice.”

Johnson v. United States, 8333 U.S. 46, 54, 68 S.Ct. 391,

895, 92 L.Ed. 468 (1948) (dissenting in part). A fed-

eral trial jvdge has inherent authority not only to com-

ment on the evidence adduced by counsel, but also—in

appropriate instances—to call or recall and question wit-

nesses. He may do this when he believes the additional

testimony will be helpful to the jurors in ascertaining

the truth and discharging their fact-finding function.

What is required, however, are reins of restraint, that he

26a

apply when a case involves the safety of the public. In a

non-jury trial, there is merger of the functions of um-

pire, trier of fact, and decider of the law in the trial

judge. In the interest of justice, and the public, the

judge may rightly express his critical concerns and probe

for responses.

C. Disposition of the Issue

If the case turned on this issue of when pitman arm

failures occur, we would have to remand for further

findings. This court cannot reach a conclusion since

we have not had the trial court’s opportunity of seeing

and hearing the contending evidence. Neither could we

be confident of the intent underlying the district court’s

“stand-off” reference. If this reflects a judgment that

the evidence truly approximates equipoise, GM loses for

failure to sustain its burden of rebuttal. But it may be,

and this is intimated by the flavor of the opinion, that

the district court found GM’s evidence on the issue pre-

ponderant, and merely expressed this result in a soft or

minimal way, consistent with its view of the burden of

proof, but not adequate under our view.

Without resolving this uncertainty, this opinion will

assume, arguendo, that the district court would have

found that GM had met its burden on this issue and that

we could not say that this finding was clearly erroneous.

Even making this assumption, most favorable to GM,

not comport himself in such a way as to “tilt” or over-

steer the jury or control their deliberations.

United States v. Liddy, 166 U.S.App.D.C. 95, 105, 509 F.2d

428, 488 (1974), cert. denied, 420 U.S. 911 (1975).

But see Frankel, The Search for Truth: An Umpireal View,

123 U. Pa. L. Rev. 1081, 1041-45 (1975).

’8 See Uviller, The Advocate, the Truth, and Judicial

Hackles: A Reaction to Judge Frankel’s Idea, 123 U. Pa. L.

Rev. 1067, 1069 n. 1 (1975).

27a

GM has not carried its overall burden of rebuttal. This

opinion now turns to the remaining issue of danger from

pitman arm failure even restricted to low speed situa-

tions.

IV. UNREASONABLE RISK AT LOW SPEEDS

A. Evidence

In rebuttal to the government’s “commonsense” prima

facie case, buttressed by expert testimony on human re-

actions and the testimony of Mrs. Arbuckle,** GM of-

fered the “risk analysis” testimony of Dr. Alan Tetel-

man.” This involved a supposedly conservative * esti-

mate of the expected harm from pitman arm failures in

the remaining service life of the 1959-60 Cadillacs based

ou data of previous experience with those cars and gen-

eral accident statistics. GM manufactured 284,456 1959-

60 Cadillacs, of which about 43,400 were still in use in

1974. GM estimated that these remaining cars would

continue in use, on the average, a little over three years.

On this basis, of the total miles driven in the cars, 96%

of the model’s service life had already occurred. 3

Dr. Tetelman used as his measure of risk an index

called “total severity” which is the product of the mean

severity per pitman arm failure times the expected num-

ber of pitman arm failures in the remaining model life.

The concept of severity used was that used by the Con-

sumer Product Safety Commission (CPSC). This scale,

** See text at notes 19-21, supra.

** See Tetelman and Burack, An Introduction tv the Us

of Risk Analysis in Accident Litigation, 42 Journal of Air

Law & Commerce 133, 144-53 (1976).

5¢ This means that at each step of the analysis where there

were uncertainties, the least safety and greatest harm were

supposedly assumed. But see text at nn. 58 & 59, infra.

** The CPSC collects and analyzes data by authority of 15

U.S.C. § 2054(a)(1). For a description of the Notional

28a

based on a unit of a day lost due to injury, gives numeri-

cal values to injuries ranging from mild ones to death.

The mean severity of a pitman arm failure was taken

as the probability that a pitman arm failure would lead

to an accident times the severity calculated for an aver-

age accident caused by loss of steering due to pitman

arm failure. The probability of failure was simply taken

from GM’s service engineer’s file on the pitman arm

problem. This contained an “events summary,” which

recorded all of the problem occurrences (complaints) al-

legedly related to pitman arms which were known to

GM. Of these 158 events, as Loren Papenguth, GM’s as-

sistant chief engineer, testified, those that GM could not

confirm “ as involving the pitman arm were eliminated,

which jpcluded some 19 accidents. Of the 64 or 65 “con-

firmed” pitman arm failures, Mr. Papenguth testified

that two involved minor accidents. Thus, Dr. Tetelman

Electronic Injury Surveillance System (NEISS), see W.

Kimble, Federal Consumer Product Safety Act § 73 (1975)

and the CPSC monthly publication, NEISS News.

** On February 10, 1975, Mr. Papenguth testified:

Well, from the total of some 158 events that we ex-

amined we were able to determine or confirm on the order

of 64 or 65 Pitman Arm separations fatigue-induced.

And of those 64 or 65 fatigue-induced separations,

we found two cases of accidents reported which, from

all indications, were minor certainly with no injuries and

no deaths involved.

Tr. 1048.

[W]e used the term “inconclusive” in our judgment for

those cases where the evidence was inadequate to con-

firm a Pitman Arm separation, that a Pitman Arm sep-

aration had occured; that the circumstances and all of

the material that had been submitted to us, included in

our events file, would not merit a conclusion or would

not justify a conclusion one way or the other.

Id. at 1050.

29a

took as the probability of accident from a pitman arm

failure, the ratio 2/64.

The average severity of a pitman arm accident was

computed using data from police accident reports in

Texas during 1969-73 and from the National Safety

Council on the distribution of accident severity depending

on the speed preceding the accident. Dr. Tetelman took

the Texas accidents resulting from steering defects (as

reported in the police reports) for his data base on the

frequency-severity distribution. The Texas police reports

used the rough National Safety Council Classification:

fatal; incapacitating injury; non-incapacitating injury;

no injury. Dr. Tetelman recalculated these on his trans-

lation into the equivalent CPSC values. In view of his

testimony that pitman arm separations would only occur

at low speeds, Dr. Tetelman normalized the steering de-

fect distribution to the distributicen of all accidents in

the low speed (0-9 mph) range. With these assumptions,

he arrived at a figure for the mean severity of a pitman

arm failure.

The expected future number of pitman failures was

based on a survey of 613 1959-60 Cadillac owners (com-

missioned by the government), in which 17 stated that

they had suffered pitman arm failures. The calculation

assumed that, since there was no indication of an up-

turn in failure rate, the future failure rate would be

the same as the historical one. Using GM’s data on the

number of remaining Cadillacs in use and their expected

three year remaining life, Dr. Tetelman calculated that

there would be about 250 pitman arm separations in the

future (as of 1974).

Putting these two factors together, the mean severity

and the future expected frequency, Dr. Tetelman pre-

dicted that the conservatively calculated future harm

was: a very small chance (less than 1%) of a fatality

30a

and about one incapacitating and one non-incapacitating

injury.

The government presented numerous objections and re-

buttals to Dr. Tetelman’s risk analysis. It objected to

the use of the Texas accident data as hearsay for which

there was no evidence presented of its accuracy and reli-

ability. The government criticized Dr. Tetelman’s analy-

sis for disregarding, i.e., assigning no value whatever

to: accidents involving mild injuries less than internal

organ injuries, e.g. sprains, bruises and scalds; accidents

involving “possible injury,” i.e., injuries claimed sub-

jectively, but not medically verifiable objectively, at the

time of the accident (with no “reserve” for the possibility

of later confirmation with symptoms and even death) ;

and accidents involving property damage but no in-

juries.”

The government further criticized Dr. Tetelman’s re-

liance on GM’s engineering files on pitman arm com-

plaints for the ratio 2/64 on the basis of uncertainties

in how the file was compiled and made to include other

data available from GM and its dealers. The survey of

Cadillac owners used to estimate the expected future

number of pitman arm failures was never introduced

in evidence and was considered unreliable by the govern-

ment. The government pointed out that the fraction of

past pitman arm failures implied by the survey was

undercut by other, more solid evidence, being only one-

fourth as great as the ratio implied by the excess (over

adjacent models) of replacement pitman arms sold as

compared to the total 1959-60 Cadillacs sold. Finally,

the government presented an expert in statistics to rebut

the methodology of Dr. Tetelman (who did not claim

expertise in statistics) in inferring the risk of future

harm, as well as criticizing the statistical significance

of his input data.

* Tr. 874-78, J.A. 464-68.

dla

B. Findings

In finding that GM had rebutted the government’s

“slim prima facie case” ® with Dr. Tetelman’s testimony,

the district court stated:

In the case of these “adillacs, there is no docu-

mented injury or death resulting from pitman arm

failure, as NHTSA has admitted. Furthermore there

are few documented accidents. The cars are now

fifteen years old. 96% of their life had been com-

pleted by the end of 1973. At the start of 1975 there

were approximately 33,000 still in service. And the

vehicles have travelled, in the aggregate, approxi-

mately 24 billion miles. On the basis of this ex-

tensive past experience, Dr. Tetelman projected a

negligible risk in the extremely limited future that

remains for these automobiles.”

** Dr. Tetelman used other data as well, but the Court

relies on that portion of his analysis which is based on

the life history of these automobiles.

It is, candidly, puzzling to ponder the district court’s

statement that it relied only on the 96% life history

“portion” of Dr. Tetelman’s “risk analysis” testimony,

presumably meaning that the court severed that part of

the analysis involving data challenged by the government,

such as the Texas accident data and the survey of Cadil-

lac owners. Yet these were all essential elements of Dr.

Tetelman’s purportedly conservative estimate of the likely

injuries to be expected from pitman arm failures. The

“life history,” i.e. that 96% of the model’s service life has

expired, does not indicate negligible risk in the remain-

ing life of the cars in use unless coupled with proof of

lack of accidents in the cars’ use in the past. There is

* Pitman Arm, supra, Memorandum at 8 (Apr. 25, 1975),

J.A. 699.

* Jd. at 12-13, J.A. 708-09 (emphasis added).

32a

an unstated assumption to the effect that if there had been

injuries and death from pitman arm failures in the

past, it would be known by someone. This presumption

surfaces in the first two sentences quoted above. If the

government could not come up with “documented in-

jur{ies] or death[{s],” the district court would draw an

inference based on this presumed safe “life history” of

the model.

The district court’s finding on GM’s rebuttal thus re-

flects an incorrect allocation of the burden of proof, as

developed in section II.B, supra, and therefore should be

set aside.** Application of the correct standard leads to

the conclusion that the “risk analysis” evidence pre-

sented in this case is incapable of carrying GM’s burden

of rebuttal. It suffices to focus on the figures used: that

of the 64 complaints in the GM files which were con-

sidered “confirmed” instances of pitman arm failures,

only two involved “reportable accidents.” The govern-

ment’s expert in statistics testified that, this was a minis-

cule sample of the thousands of pitman arm failures in-

dicated by the replacement part sales,** which would suf-

fice by itself as proof of the characteristics of pitman arm

failures generally. Significantly, there was no attempt by

GM to prove that this was a representative sample.

VI. CONCLUSION

Logically, this would indicate that we should reverse

the judgment and order judgment entered for the gov-

ernment on remand. However, the case was not tried

before us. This appellate court may not properly act as

the finder of fact, since there may be some ramifications

of the evidence or fact-finding functions we have not

fully discerned. In any event, there must be a remand

or determination of appropriate relief.

*? See note 47, supra.

*: Tr. 1237.

33a

This opinion concludes that in the remand for further

proceedings the district court may and should reconsider

the safety-related issue in light of the standard of proof

and rebuttal set forth herein.

In its enforcement action, the government sought a

civil penalty of $400,000 for failure to furnish the defect

notifications.“ In approving the statutory scheme where-

by a manufacturer runs the risk of such a penalty by

litigating the merits of a notification order after failing

to obtain temporary relief, a three-judge district court ap-

proved the purpose of deterring frivolous litigation,

while permitting substantial challenges to be raised.”

The Supreme Court affirmed, Ford Motor Co. v. Coleman,

425 U.S. 927 (1976). The district court left open the

standard and interplay of factors which determine the

actual amount of the penalty set.“ The district court

has latitude to take into account its view of the serious-

ness of the safety-related defect and the manufacturer’s

good faith.

** Section 109(a), 15 U.S.C. 13898(a), provided, at the time

the government brought suit, a civil penalty of $1000 per

violation, i.e., for each affected automobile, with a maximum

of $400,000 for each related series of violations. The 1974

amendments, which do not affect this case, increased the

maximum to $800,000. See note 7, supra.

** Ford Motor Co. v. Coleman, 402 F. Supp. 475, 490 (D.D.C.

1975), affd. 425 U.S. 927 (1976).

** More important, the $800,000 figure represents a maxi-

mum, not a minimum. There clearly is room for the court

to set a substantially lower figure. The statute expressly

authorizes the court to consider “the size of the business

of the person charged and the gravity of the violation” in

determining the amount of the penalty. Moreover, as the

Government seems to concede, the reasonableness and

good faith of the manufacturer’s noncompliance may

properly be considered in mitigation of the statutory

maximum.

Id. at 489 (citations omitted).

34a

Since most of the affected cars are no longer in opera-

tion, the import of my disagreement with the majority has

more to do with the doctrine we establish for governance

of this type of case in the future than the result in the

case of the 1959-1960 Cadillacs. The majority elevates

facts which give rise to a strong suspicion of dangerous-

ness into a conclusive presumption of the existence of a

safety-related defect. I would allow the manufacturer the

opportunity to dispel this justified apprehension by proof

that failure due to the defect does not occur in a danger-

ous fashion and that the risk arising from the defect

is therefore inconsequential.

35a

APPENDIX B

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

No. 75-1751 September Term, 1976

THE UNITED STATES OF AMERICA,

v. Appellant \ Civil Action

GENERAL Motors CorPoRATION, 74-277

a corporation

No. 75-1752

GENERAL Motors CORPORATION,

a Delaware Corporation

V.

Brock ADAMS, et al.,

Appellants,

Civil Action

74-1053

APPEALS FROM THE UNITED STATES DISTRICT CouRT

FOR THE DISTRICT OF COLUMBIA

BEFORE: WRIGHT, LEVENTHAL AND Ross, Circuit Judges.

JUDGMENT

These causes came on to be heard on the records on

appeal from the United States District Court for the

District of Columbia, and were argued by counsel. Upon

consideration thereof, it is

ORDERED AND ADJUDGED by this Court that the judg-

ment of the District Court appealed from herein is re-

versed; and these cases are remanded to the District Court

for determination of appropriate relief, in accordance with

the opinion of this Court filed herein this date.

United States Court Per Curiam

of Appeals For the Court:

for the District of

Columbia Circuit Georce A. FIsHER, Clerk

Filed June 28, 1977 By: Ropert A. BONNER

Greorce A. FISHER Robert A. Bonner,

Clerk Chief Deputy Clerk

Dated: June 28, 1977

Opinion per curiam.

Opinion dissenting in part by Circuit Judge Leventhal.

36a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-i1751—September Term, 1976

THE UNITED STATES OF AMERICA,

Appellant mee

Vv. Civil Action

74-277

GENERAL Motors CORPORATION,

a corporation

And consolidated case No. 75-1752

Before: Wricut, LEVENTHAL and Ross, Circuit Judges.

ORDER

On consideration of the petition for rehearing filed by

appellant General Motors corporation, it is

OrpeERED by the Court that appellant’s aforesaid petition

is denied.

Per Curiam

For the Court:

GeorcE A. FISHER

George A. Fisher

Clerk

*Judge Leventhal would have granted appellee’s petition for re-

hearing.

37a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1751—September Term, 1976

THE UNITED STATES OF AMERICA, |

Appellant

Vv. Civil Action

74-277

GENERAL Morors CORPORATION,

a corporation |

And consolidated case No. 75-1752

Before: Bazeton, Chief Judge, \VricGHT, TAMM, Lev-

ENTHAL, Ropinson, \iACKINNON, Ross and

WILKEY, Circuit Judges.

ORDER

The suggestion for rehearing en banc filed by appellant

General Motors corporation, having been transmitted to

the full Court and no judge having requested a vote with

respect thereto, it is

ORDERED, by the Court en banc, that appellant’s afore-

said suggestion for rehearing en banc is denied.

Per Curiam

For the Court:

GEORGE A. FISHER

George A. Fisher

Clerk

*Judge McGowan did not participate in this order.

38a 39a

APPENDIX D seq.) (hereinafter referred to as the Act). General Motors

(hereinafter referred to as GM) is a corporation organized

THE UNITED STATES OF AMERICA, under the laws of Delaware and is a “manufacturer” within

Plaintiff, ~the meaning of Section 102(5) of the Act (15 U.S.C.

§ 1391(5)).

V.

GENERAL Motors CORPORATION, I. FACTUAL BACKGROUND.

Defendant.

During the period which encompassed model years 1959

on : through 1960, GM manufactured and sold approximately

IE, SPE oe 284,456 Cadillac automobiles. GM estimates that approxi-

bali mately 43,400 are still in use.?

v. On September 13, 1972, some twelve years later, the

Center for Auto Safety, Washington, D. C., forwarded to

the Office of Defects Investigation, National Highway Traffic

Safety Administration (hereinafter referred to as NHTSA)?

CLAUDE S. BRINEGAR, as Secretary of

Transportation, et al., Defendants.

Civ. A. Nos. 74-277 and 74-1053. information alleging the existence of a safety-related defect

, ee in the design and performance of the steering pitman arm in

United States Dustrict C an, the 1959-1960 model year Cadillacs.4 The pitman arm is a

District of Columbia.

Oct. 16. 1974 critical component of the steering system. It connects the

=o steering shaft to the steering linkage. If it fails, directional

control of the vehicle is lost.

Jeffrey Axelrad, Atty., Department of Justice, Washing- NHTSA initiated an investigation of the pitman arm which

ton D. C., for plaintiff United States of America. included tests, interviews with a representative group of

—_— —e vehicle owners who had complained of failures, submissions

— J. Robertson, Washington, D. C., for General Sux Gt Ga eee Gs eanentle’ ee Ges

we replacements of pitman arms, and a hearing conducted on

MEMORANDUM November 6, 1973.5 As a result of this investigation,

: nl NHTSA, acting pursuant to Section 113(e) of the Act (15

Gascu, District Judge. U.S.C. § 1402(e))

This matter is before the Court on cross-motions for

summary judgment and oppositions thereto.’ * Affidavit of Alexander I. Pirie, Manager, Analysis, Product Assurance

Department, Environmental Activities Staff, GM, August 2, 1974, # 2.

The action arises under Title I of the National Traffic and *The director acts pursuant to the authority delegated to him by the

Motor Vehicle Safety Act of 1966, as amended (Act of =. of Transportation. 49 eeng yee 3

5 é rm, arm,” refers ring i arm on tir

September 9, 1966, 80 Stat. 718 et seq., 15 U.S.C. $1381 et eben po es tag atte as seen

'The Court has granted leave for Stanton R. Koppel of the Center for SAll of these items are contained in the extensive Administrative

Auto Safety, Washington, D. C., to file a memorandum as amicus curiae. : Record and its Supplement.

40a

determined that a defect which relates to motor vehicle

safety exists with respect to the steering pitman arm on

1959-1960 model year Cadillac automobiles, in that these

pitman arms are subject to sudden and catastrophic

failure, causing loss of steering control, and resulting in

an unreasonable risk of accidents, deaths, and injuries

to persons using the highways.®

By letter dated January 10, 1974, NHTSA directed GM to

furnish the notification specified in Section 113(c) of the Act

(15 U.S.C. § 1402(c)) to the purchasers of these automobiles.

On January 11, GM filed a suit in the U.S. District Court

for the Eastern District of Michigan (G.M. v. Brinegar, et

al., Civ.A. No. 4-70939) seeking a declaration that the

agency determination was unlawful and void and an injunc-

tion resisting enforcement of the agency’s order. GM

obtained a temporary restraining order. On February 13,

GM’s motion for a preliminary injunction was denied and the

temporary restraining order vacated by the Michigan Court.

On that same day the United States (hereinafter referred to

as US) filed a suit in this Court (U.S. v. G.M., Civ. A. No.

74-277) to enforce NHTSA’s order under Section 110(a) of

the Act (15 U.S.C. §1399(a)).?7 The Michigan action for

declaratory relief and an injunction was transferred to this

Court on July 8 (as Civ.A. No. 74-1053). GM has yet to

furnish the notifications to purchasers as ordered by

NHTSA.

Il. SUMMARY JUDGMENT

(a) Defect.

On March 5 the US moved for summary judgment on the

basis of the Administrative Record. This record contains

®Letter dated January 10, 1974, from James B. Gregory, Administrator,

NHTSA, to E. M. Cole, President, GM, Administrative Record, Exhibit

S-34, p. 2.

7 Additionally the US seeks $400,000 in civil penalties from GM pursuant

to Section 10%a) (15 U.S.C. § 1398(a)) for failure to issue the safety defect

notifications. The Court does not decide this at this time.

4la

data supplied by GM® which shows that roughly 9.3%

(26,424) pitman arms were subject to replacement for the

1959-1960 model year Cadillacs. This compares with a 1.68%

(4,519) replacement rate for the 1957-1958 model, and a

1.48% (4,423) replacement rate for the 1961-1962 model. The

design of the pitman arm for the year in question differs

from the previous year’s design as well as that of the

following year. GM is unable to provide a reason for the

difference in replacement rates.®

The US contends that this unusually high replacement

rate constitutes prima facie proof that the pitman arm

contains a defect. The US bases this argument on the

WHEELS case (United States v. G.M., D.C., 377 F. Supp.

242), decided by this Court on June 13, 1974, in which we

held that a large number of failures of 15 x 5.50 Kelsey-

Hayes dise wheels constitutes prima facie proof of the

existence of a defect in performance under Section 102(11) of

the Act (15 U.S.C. §1391(11)). The US seeks to carry that

decision one step further in this case.

As will become apparent, this case is clearly distinguish-

able from WHEELS. In WHEELS there was no con-

troversy between the US and GM over whether there

existed a large number of failures; in this case there is such a

*Administrative Record, Exhibit 2, Figure 11, September 26, 1972.

Figures submitted June 20, 1974, in GM’s August 5 memorandum of

opposition to motion for summary judgment are slightly higher.

GM emphasizes that these figures reflect sales of pitman arms to

dealers, not installations on automobiles. See Affidavit of Loren R.

Papenguth, Assistant Chief Engineer for Cadillac Motor Car Division of

GM, August 2, 1974, 17. The Court believes it is safe to assume that these

parts were not purchased by dealers to sit on their shelves.

GM further suggests that pitman arm replacement may have occurred

for reasons other than fatigue-induced failure: improper lubrication and

maintenance, hard usage creating excessive ball stud wear, excessive

loads due to improper torquing techniques, hoist damage, accident

damage, and precautionary measures taken by dealers. The Court does

not think these other reasons can by themselves account for such an

unusually high replacement rate.

*Statement of L. R. Papenguth at the administrative hearing on

November 13, 1973. Administrative Record, Exhibit S-24, pp. 37-38.

42a

controversy. In WHEELS there was no dispute over

whether such failure constituted an unreasonable risk of

accidents, death or injury; that is the dispute in this case. In

WHEELS the primary questions were the interpretation of

the statutory words, “defect in performance” and what proof

is necessary to show a defect in performance; in this case,

which is a case of first impression, the primary questions are

the interpretation of the statutory words, “unreasonable

risk” and what proof is necessary to show that a defect poses

an unreasonable risk of accidents, death or injury.

The Administrative Record also contains the results of

tests conducted for NHTSA by the Essex Corporation of

Alexandria, Virginia, a private testing corporation under

contract to NHTSA. These tests confirmed information

supplied by GM?° that the pitman arm can fail from metal

fatigue after a large number of high stress maneuvers such

as occur in parking and turning.™! According to the US,

either the report of the tests or the high replacement rate is

sufficient to prove a defect in design or performance under

Section 113(e)(2) of the Act (15 U.S.C.§ 1402(e)(2)).

The Court does not reach the question of whether an

unusually high replacement rate is prima facie proof under

the Act of the existence of a defect. The test results are

sufficient to indicate such a defect. Whether this is a defect

which relates to motor vehicle safety is a more difficult

question.

(b) Unreasonable Risk.

The Act is not concerned with all defects, but only with “a

defect which relates to motor vehicle safety” (Section

113(e)(2), 15 U.S.C.§ 1402(e)(2)). It defines “motor vehicle

safety” in Section 102(1) (15 U.S.C.8 1391(1)) as

the performance of motor vehicles or motor vehicle

equipment in such a manner that the public is protected

1° Administrative Record, Exhibit 6.

1! Administrative Record, Exhibit 15.

43a

against unreasonable risk of accidents occurring as a

result of the design, construction or performance of

motor vehicles and is also protected against

unreasonable risk of death or injury to persons in the

event accidents do occur . . .. (Emphasis added.)

The US relies for summary judgment on the logical

assumption that a defect involving the steering mechanism

which leads to a loss of directional control creates an

unreasonable risk of accidents, death or injury at any speed.

It points to the fact that 10.7% of all fatal accidents occur at

speeds of less than 20 miles per hour, and over 34.2% of all

accidents resulting in injuries occur within this speed

range. 12

GM replies that fatigue-induced failure in the pitman arm

constitutes no risk to safety because failure can occur only

when the wheels are turned to or nearly to their extreme

limits.’* This condition is reached only in parking or turning

at very slow speeds, when loss of directional control can be

checked by braking, or when the automobile is standing

virtually still.

To substantiate this contention GM recounts its history of

the 1959-1960 model year Cadillacs: 24 billion miles traveled;

144 reported incidents alleging pitman arm failure, only 19 of

which included accidents, and none of which resulted in

personal injury or death.'* If summary judgment is to be

granted on the basis of the Administrative Record, argues

GM, it should be granted in favor of GM’s motion since the

record demonstrates that pitman arm failure is not an

unreasonable risk.

The US disputes GM’s figures and alleges a larger number

of pitman arm failures, including at least one occurrence at

2 This data is taken from the 1972 edition of “Accident Facts” published

by the National Safety Council, Chicago, Illinois, and is in the Administra-

tive Record, p. 17.

*SPapenguth Affidavit, 4 8.

'4Papenguth Affidavit, 4% 4, 5, 6. Mr. Papenguth maintains that in 17 of

the 19 alleged accidents there is no evidence of pitman arm failure.

44a

high speed.'® The figures of both sides are ambiguous,

however, because they are based primarily on consumer

complaints, many of which were submitted long after the

alleged pitman arm failures. There was never opportunity

for NHTSA to examine a defective pitman arm to determine

whether it had failed from metal fatigue, and, if there was an

accident associated with the alleged failure, whether pitman

arm failure was its cause.

The figures may be ambiguous, but the law is clear that

summary judgment can be granted only if “there is no

genuine issue as to any material fact.” Rule 56(c),

Fed.R.Civ.P. The moving party has the burden of demon-

strating the absence of any genuine issue of material fact.

Semaan v. Mumford, 118 U.S.App.D.C. 282, 283, 335 F.2d

704, 705 (1964). The party opposing summary judgment “is

entitled to the benefit of all favorable inferences that may

reasonably be drawn from the evidence for the purpose of

defeating summary judgment.” Semaan v. Mumford, supra,

quoting 6 Moore, Federal Practice 2114 (2d ed. 1953). To

defeat a summary judgment motion, the opposing party need

not prove that the factual inferences drawn by the moving

party are actually incorrect; it is enough for the opposing

party to show that contrary inferences “might be permissi-

ble.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82

S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam). These

principles have been consistently followed by the United

States Supreme Court!® and by the United States Court of

Appeals for this Circuit.'7 If material facts are found to be in

'®Administrative Record, p. 7, and Exhibit 9, Zanfardino report.

‘United States v. Diebold, Inc., supra. Adickes v. S. H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

‘Rodway v. United States Dep't of Agriculture, 157 U.S.App.D.C.

3, 158, 482 F.2d 722, 727 (1973); Bloomgarden v. Coyer, 156

U.S.App.D.C. 109, 114-115, 479 F.2d 201, 206-207 (1973); Nyhus v. Travel

Management Corp., 151 U.S.App.D.C. 269, 271, 466 F.2d 440, 442 (1973);

Washington v. Cameron, 133 U.S.App.D.C. 391, 395-396, 411 F.2d 705,

709-710 (1969); Underwater Storage, Inc. v. United States Rubber Co.,

125 U.S.App.D.C. 297, 300, 371 F.2d 950, 955 (1966), cert. denied, 386

U.S. 911, 87 S.Ct. 859, 17 L.Ed.2d 784 (1967); Semaan v. Mumford,

supra,

45a

dispute a motion for summary judgment must be denied and

a trial held.'®

Ill. CONCLUSIONS

There is a certain appeal to the government’s argument

that a defect which may result in a loss of steering control is,

ipso facto, a safety-related defect under the Act. One need

only ask whether he would consider loss of steering control,

even at a very slow speed, a reasonable or unreasonable

risk.

The Act is more limited, however. Under its standard, a

safety-related defect must pose, not just a risk of accidents,

death or injury, but an wnreasonable risk. The inclusion of

the adjective “unreasonable,” as well as the legislative

history'® make the question of whether fatigue induced

failure of the pitman arm creates such an unreasonable risk a

matter of fact, not of supposition. The US says pitman arm

failure can occur at high speeds but is an unreasonable risk

at any speed; GM says pitman arm failure cannot occur at

high speeds and does not pose an unreasonable risk at slow

speeds. This is an issue of fact which cannot be resolved by

logic alone. And it is an issue of material fact under the law

of summary judgment. Therefore, the government’s motion

for summary judgment will be denied.

On this factual issue the automobile’s road history is

enlightening but not conclusive. For one thing, the history

itself is a matter of dispute between the parties. Even more

important, the Act looks less to the past than to the future.

Its purpose is “to reduce traffic accidents and deaths and

injuries to persons resulting from traffic accidents.” (Section

1, 15 U.S.C. $1381). It seeks to prevent accidents before

they occur; that is the function of the statutory defect

notification program. Whether fatigue-induced failure of the

pitman arm creates an unreasonable risk depends upon,

18This is not a case of review of an administrative record.

‘During the hearings on this bill before the Senate Committee on

Commerce, Senator Ribicoff, testifying in support of the bill, raised the

46a

among other things, whether failure can occur at high

speeds. The Administrative Record, which looks retrospec-

tively at GM’s road history of this automobile, is insufficient

to settle this dispute. Therefore, GM’s motion for summary

judgment will be denied.

question of how strict the standards to be promulgated by the Secretary

[of Commerce] would be. This discussion followed:

Senator Pastore (a member of the Committee): Abe, I quite agree

with you, and this requires more commonsense and it will not cost

much more money. There is no question about that. But we are

discussing here the technicalities and guidelines and formulas that we

have to put in words to give guidance to the Secretary of Commerce

so that he knows what his limits are, to promote this commonsense

that we are talking about. And that is where I think we are going to

have a tremendous amount of difficulty.

I think we are all agreed now, we are all agreed, that heretofore we

haven't concentrated enough thought on this question of safety, and

who is primarily responsible.

You are developing today the thesis that in the past the automobile

industry could have done a whole lot more, and had they done it, we

wouldn't be confronted with this legislation today.

Now we are giving this authority to the Secretary of Commerce.

And we have to tell him, as a committee and as a Congress, how far

he can go and how far he can’t go. And that is where we are going to

have trouble.

Senator Ribicoff: It is complex. In addition to the Secretary of

Commerce, I think you can call upon the men who have been working

in this field at Harvard, Cornell, and UCLA. And I think the

automobile industry should be called in to explain the impact that

standards will have on them and how this will work out. I think you

should have testimony from the GSA.

Senator Magnuson (chairman of the Committee): GSA is going to

testify tomorrow, and the automobile industry later.

May I say at this point, and it might throw a little light on this,

section 101 of the bill says:

(He reads Section 101 of the Senate bill, S. 3005, which became

Section 102(1) of the Act, 15 U.S.C. $1391(1), quoted above, p. 118 of

this Memorandum. )

The reason the word “unreasonable” was put in there is that there

will be some commonsense applied to this, such as the Senator from

Rhode Island (Pastore) has pointed out.

Hearings on S. 3005 Before the Senate Committee on Commerce, 89th

Cong., 2d Sess., ser. 89-49, at 56 (1966).

Although this discussion related to promulgation of standards under

Section 103 of the Act (15 U.S.C. $1392), the Court finds that this

“commonsense” approach is intended to be applied to the Act as a whole.

47a

It is significant in this regard that Section 103(f)(3) requires reasonable-

os in prescribing standards: The Secretary shall consider, among other

things,

whether any such proposed standard is reasonable, practicable and

appropriate for the particular type of motor vehicle or item of motor

vehicle equipment for which it is prescribed.

The General Counsel of the Commerce Department stated in a letter to

the Senate Commerce Committee:

The tests of reasonableness of cost, feasibility and adequate lead time

should be included among those factors which the Secretary could

consider in making his total judgment.

The Committee Report to the Senate quotes this portion and says,

The committee intends that safety shall be the overriding considera-

tion in the issuance of standards under this bill. The committee

recognizes,as the Commerce Department letter indicates, that the

Secretary will necessarily consider reasonableness of cost, feasibility

and adequate lead time.

S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966).

48a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

Plaintiff,

‘ Civil Action

: No. 74-277

GENERAL MOTORS CORPORATION,

Defendant. |

UNITED STATES OF AMERICA, [sic] |

Plaintiff,

. , Civil Action

: No. 74-1053

CLAUDE S. BRINEGAR, ET AL.

Defendants. ?

MEMORANDUM

This action arises under Title I of the National Traffic and

Motor Vehicle Act of 1966, as amended (the Act).! The

United States (US) seeks to obtain an order in the nature of

an injunction requiring General Motors (GM)? to notify the

owners of 1959-1960 model year Cadillac automobiles that

the vehicles contain a defect which relates to motor vehicle

safety.

Specifically the US contends that these automobiles were

manufactured with defective pitman arms® which are subject

to sudden failure, causing loss of steering control and

‘Act of September 9, 1966, 80 Stat. 718 ef seg., 15 U.S.C. $1381 et seq.

2GM is a corporation organized under the laws of Delaware and is a

“manufacturer” within the meaning of Section 102(5) of the Act (15

U.S.C. §1391(5)).

3The function of the pitman arm is to transfer the angular motion of the

steering gear to a lateral motion of the drag link and the tie rods causing

the front wheels to turn. If it fails, directional control of the vehicle is lost.

49a

resulting in an unreasonable risk of accidents, injuries or

death. GM opposes the relief being sought by the US

contending that the defect in these Cadillacs does not result

in an unreasonable risk of accidents, injury or death, which

is the statutory standard* because failure occurs only in

parking and other low speed maneuvers, when loss of

directional control can be checked by braking.

This litigation was previously before the Court on cross-

motions for summary judgment and oppositions thereto. By

Memorandum and Order dated October 16, 1974,5 this Court

found that no genuine issue existed as to whether these

vehicles contain a defect, holding that a defect exists. But

the Court also held that the question of whether the defect

results in an unreasonable risk of accidents, injury or death

within the meaning of the Act was a disputed issue of fact

which must be tried de novo.®

By Order dated December 10, 1974, the Court set three

issues to be tried:

(1) Does pitman arm failure at relatively low speeds

such as those ncountered in parking, driveway man-

euvers, and other low speed maneuvers such as

U-turns, create an unreasonable risk of accidents,

injuries or death?

(2) Can a pitman arm failure occur at normal driving

speeds or at high speed highway driving as a result of

metal fatigue induced from or incident to parking and

driveway maneuvers?

(3) If the answer to the question raised in the second

issue is in the affirmative, does the normal speed or high

speed possibility of pitman arm failure create an

unreasonable risk of accidents, injury or death?

4Section 102(1), 15 U.S.C. $1391(1).

565 F.R.D. 115. That Memorandum opinion contains the history of the

administrative proccedings before the National Highway Traffic Safety

Administration.

®Counsel agree and Section 706(2)(F) of the Administrative Procedure

Act makes it clear that de novo trial is required.

50a

Trial de novo on these issues began February 3, 1975.7 In

a civil trial de novo such as this, the plaintiff bears the

burden of proving his case anew by a preponderance of the

evidence. In this trial the US was the plaintiff.

In the course of the trial the US made out a slim prima

facie case on the testimony of Mrs. Karen Arbuckle

concerning a recent pitman arm failure in her 1960 Cadillac

and the metallurgical and metal fatigue tests and testimony

of Dr. Volker Weiss. GM countered with the risk analysis

and fracture mechanics tests and testimony of Dr. Alan

Tetelman.® Since the government as plaintiff did not bear its

burden of proof, the Court finds that the pitman arm defect

in model year 1959-1960 Cadillacs does not create an

unreasonable risk of accidents, injuries or death, and

coniudes that General Motors need not issue a defect

notification to owners of these automobiles.

I. The Burden of Proof.

Since the outcome of this trial turns on the inability of the

US to bear its burden of proof, it is important to be clear at

the outset about the nature of an action to enforce a

determination of the Secretary of Transportation that a

defect related to motor vehicle safety exists about which a

defect notification should be sent by the automobile manufac-

turer to owners.

7The trial lasted six and a half days and invw'ved seven expert

witnesses, 100 exhibits, and is reported in 1245 pages of transcript.

®*The US presented other witnesses, but their testimony was relevant

only if the US first showed that a fatigue-induced failure of the pitman

arm could occur at normal or high speeds or that such failure created an

unreasonable risk at low speeds. Since the Court is finding that the

government failed to make this showing, the additional evidence is not

helpful.

Likewise GM offered other witnesses in addition to Dr. Tetelman, but

since the Court is finding that Dr. Tetelman’s testimony is sufficient to

counter the main elements of the government’s case, it is unnecessary to

consider their testimony.

5la

This has been well set forth by the Chief Counsel of the

Federal Highway Administration in a letter to Senator

Warren Magnuson dated November 11, 1969:°

Under section 113 of the act (15 U.S.C. 1402), the

Secretary cannot compel a manufacturer to send defect

notification letters. . . . This is because Congress did not

make the Secretary’s orders self-executing. Thus, if a

manufacturer disagrees with the Secretary’s defect

determination in a particular case, the Secretary can

force the manufacturer to comply with the notification

procedure only by asking the Attorney General to get a

district court order directing such compliance. Section

110(a) of the act (15 U.S.C. 1399(a)) provides expressly

for this procedure. . . .

In any such enforcement proceeding the manufacturer is

of course free to challenge the validity of the Secretary’s

defect determination. Section 10 of the Administrative

Procedure Act expressly provides (with an exception

not relevant here) that “*** agency action is subject to

judicial review in civil or criminal proceedings for

judicial enforcement.” 5 U.S.C. 703. Indeed, except

where Congress has either precluded or provided some

other forum for review—which is not the case under the

Traffic Safety Act—that APA provision merely restates

a long established tenet of administrative law. (Citations

omitted)

Moreover, it is the Secretary, as the party moving for

injunctive relief (i.e. an order directing compliance),

who bears the burden of proving to the court that his

defect determination is correct and he is entitled to

enforcement. As the Supreme Court said in United

States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct.

894, 898 (1953), and repeated in United States v.

Borden Co., 347 U.S. 514, 520, 74 S.Ct. 703, 707, 98

L.Ed. (1954), “(T]he moving party must satisfy the

court that [injunctive] relief is needed.” (Other citations

umitted)

°S. Rep. No. 91-559, 91st Cong., 2d Sess. 41-45 (1969)

52a

Moreover, the district court proceeding is a trial de

novo, not withstanding that under section 113(c) of the

act (15 U.S.C. 1402(e)) the Secretary had already

provided the manufacturer with all the information on

which his defect determination was based and given the

manufacturer opportunity to present its own views and

evidence supporting them at an informal hearing. See,

Jordan v. American Eagle Fire Insurance Co., 169 F.2d

281 (D.C. Cir. 1948), holding judicial review of an

administrative determination to be “de novo” where the

act did not provide for a full dress administrative

hearing. Indeed, Jordan v. United Insurance Company

of America, 289 F.2d 778 (D.C. Cir. 1961), goes so far as

to hold that an agency’s gratuitous grant of a quasi-

judicial hearing not required by statute could not

deprive a party of his right to a hearing de novo before a

judicial tribunal. See also 1 Davis, Administrative Law

Treatise (1948 ed), section 7.10. And section 10(e) of the

Administrative Procedure Act makes express that the

court, in a trial de novo, may disregard administrative

determinations where it finds them to be “unwarranted

by the facts,” 5 U.S.C. 706.

That statement accurately reflects this Court’s understand-

ing of the nature of this action.

However, confusion has arisen because the government’s

suit to compel GM to issue the defect notification has been

consolidated with GM’s suit challenging the determination of

the Administrator of the National Highway Traffic Safety

Administration (NHTSA).!° As a result, the US claims that

the essence of this trial is a review of the reasonableness of

the Administrator’s determination in which GM is the

plaintiff and bears the burden of going forward."

10GM v. Brinegar was transferred to this Court from the United States

District Court for the Eastern District of Michigan. See U. S. v. GM, 65

F.R.D. at 117.

1! Plaintiff's Reply to General Motors’ Legal Memoranda at 3-4.

53a

Such a contention misconstrues the nature of this action.

The Administrator of NHTSA initiated this controversy by

determining that the pitman arm in 1959-1960 Cadillacs

contains a safety-related defect and ordering GM to send out

defect notifications to owners. When GM refused, the US

brought suit to enforce the Administrator's determination.

Basic to the Administrator’s determination was the as-

sumption that a defect which may result in a loss of steering

control is, ipso facto, a safety-related defect under the Act.

This Court rejected that argument, saying that whether

fatigue induced failure of a pitman arm in this automobile

creates an unreasonable risk of accidents, injuries or death

cannot be resolved by logic alone. The Court ordered a trial

in which the government could prove that the

Administrator’s determination was correct and entitled to

enforcement. GM’s action against the government is secon-

dary and responsive. If the government wants its determi-

nation enforced, it must bear the burden of proving by a

preponderance of the evidence that the pitman arm in this

automobile contains a safety-related defect, which is a defect

which presents an unreasonable risk of accidents, injuries or

death.

_ IL. The Evidence Presented at Trial

The trial was largely a battle of experts. Experts on both

sides agreed that the original pitman arm on 1959-1960

Cadillacs! is defective in that it is subject to fatigue-induced

separation (breaking) in the necked down portion adjacent to

the ball-stud end.

They further agreed that the fatigue process begins with a

crack which propagates as repeated cycles of alternating

loads are imposed on the arm. The greater the magnitude of

the load applied, the more rapidly the crack will grow.

Conversely, the smaller the magnitude of the load, the less

rapidly the crack will grow. Again, the larger the crack in

'2During model year 1960 the pitman arm was strengthened so that it

was no longer subject to fatigue failure.

54a

the arm, the more it will grow with the application of a given

load. Conversely, the smaller the fatigue crack, the less it

will grow with the application of that load.

They agreed that fatigue induced separation occurs if a

fatigue crack becomes large enough so that the remaining

material—the intact cross section—has become so small that

it can no longer support the applied load.

The parties’ experts also agreed that different maneuvers

impose different loads on a pitman arm. For example,

normal parking or U-turns at slow speeds exert over two

thousand pounds of stress, whereas lane changes, S-turns,

slow pothole impacts and 90-degree turns impose less than

one thousand pounds of stress.

The parties differed as to how small the intact cross

section can become before it will break. If the crack can

become very long, so that the remaining intact cross section

is very small, then a small load—as is encountered, for

example, in a lane change at 70 m.p.h.—might be enough to

cause separation. If, however, the crack cannot become very

long, because heavier loads—such as normal parking

maneuvers—will break it before it has a chance to get too

long, then little hazard exists: the failure will occur in a

parking maneuver long before it might occur in a high speed

lane change.

Dr. Volker Weiss, the government’s expert in metallurgy,

expressed the opinion, based on his own knowledge and the

examination of broken pitman arms, that a fatigue crack

could propagate far enough so that remaining cross-section

could become quite small. His tests indicated that such a

small intact cross section could break under the load stress

of norma! driving maneuvers such as a fast lane change at 70

m.p.h., a 40 m.p.h. cornering maneuver, a 30 m.p.h

moderate S-turn, a 10 m.p.h. ninety degree turn, or a five

m.p.h. U-turn.

55a

GM countered Dr. Weiss’ conclusions with the expert

opinion of Dr. Alan Tetelman'*® to the effect that the

experiments conducted by Dr. Weiss on pitman arm separa-

tion did not accurately reflect the “real life” situation.

Specifically Dr. Tetelman noted that Dr. Weiss had notched

long circular cracks in the pitman arms before testing their

load capacity. These long machine-induced cracks were

unlike fatigue-induced cracks in two ways. First, the cutting

was so clean that no interlocking metal remained, as would

be the case in fatigue-induced crack propagation. Second,

the machine-induced crack was longer and was circular,

leaving a smaller and materially different cross-section

intact, than occurs in real-life situations.

Dr. Tetelman’s experiments traced the propagation of a

fatigue-induced crack to separation. These experiments

demonstrated that separation would occur under heavy loads

such as parking and low speed maneuvers when the

fatigue-induced crack had propagated through only about

fifty per cent of the cross section, so that, in effect, the crack

in real-life driving would seldom become so long that the

pitman arm might break under the lighter loads experienced

in normal or high speed driving maneuvers.

The allegation that Dr. Weiss’ experiments were not “true

to life’ was never rebutted by the government. Thus the

“battle of the experts” was a stand-off. The government did

not show by a proponderance of the evidence that a fatigue

crack would normally propagate so far that the remaining

cross-section could break under normal or high speed

maneuvers.

The US also offered the experience evidence of Mrs.

Karen Arbuckle of Des Moines, Iowa. Mrs. Arbuckle

testified that on November 7, 1974, the steering on her 1960

Cadillac failed without warning as she was making a right

hand turn, and her vehicle proceeded diagonally into the

'3Other GM witnesses, such as Dr. Kenneth F. Packer, offered

testimony similar to Dr. Tetelman’s.

56a

curb on the opposite side of the street into which she was

turning. Fortunately the oncoming traffic lane was empty so

there was no collision. An examination of the steering

system revealed a separation of the pitman arm resulting

from fatigue-induced failure. Mrs. Arbuckle estimated that

she was traveling between ten and fifteen miles per hour at

the time she experienced loss of directional control.

Mrs. Arbuckle’s experience demonstrated that whether or

not separation normally occurs in such ordinary driving

maneuvers as making a right turn, it did occur in this

situation, raising experientially, rather than scientifically (as

when done by the metallurgy experts), the question of

whether pitman arm failures constitutes an unreasonable

risk to safety."

GM countered the experience of Mrs. Arbuckle with the

risk analysis of Dr. Tetelman. Risk analysis is based upon

the premise, reco, nized by engineers, that no event has zero

probability and no product can be perfectly safe. Arbuckle-

type experiences are bound to occur. Risk analysis attempts

to put these experiences in perspective, however, by

quantifying the safety record of an item (in this case, the

pitman arm on 1959-1960 Cadillacs) so that it may be

compared with other items, thereby determining whether it

presents an unreasonable risk to safety.

In the case of these Cadillacs, there is no documented

injury or death resulting from pitman arm failure, as

NHTSA has admitted. Furthermore there are few

documented accidents. The cars are now fifteen years old.

96% of their life had been completed by the end of 1973. At

the start of 1975 there were approximately 33,000 still in

service. And the vehicles have travelled, in the aggregate,

approximately 24 billion miles. On the basis of this extensive

'4Testimony of another pitman arm failure was offerd by the deposition

of Joseph Dalkiewicz of Plymouth, Pennsylvania. However, the diagram of

the direction taken by the Dalkiewicz vehicle after the pitman arm failure

was contrary to the evidence of Dr. Weiss, thus weaking the force and

effect of the evidence.

57a

past experience, Dr. Tetelman projected a negligible risk of

accidents, injuries or death due to pitman arm failure in the

extremely limited future that remains for these auto-

mobiles. !5

He noted that there is little likelihood of a rash of pitman

arm failures in the remaining four per cent of the life of

these vehicles because the mean (average) fatigue life of the

pitman arm is calculated to be approximately 48 years,

whereas the significant life remaining in these Cadillacs is

only six years.

Therefore the government’s demonstration that the

Arbuckle-type experience has happened did not prove that it

would happen sufficiently often to create an unreasonable

risk to safety. On the contrary, GM offered Dr. Tetelman’s

risk analysis as evidence that it will not.

Ill. Finding of Fact.

The government failed to demonstrate that a defect which

creates an unreasonable risk of accidents, injury or death

exists in the pitman arms of model year 1959-1960 Cadillacs.

IV. Conclusions of Law.

1. Tne United States, as plaintiff, failed to bear its burden

of showing by a preponderance of the evidence that

fatigue-induced failure of the pitman arm in 1959-1960 model

year Cadillacs creates an unreasonable risk of accidents,

injuries, or deaths.

2. Therefore this defect in the pitman arm in 1959-1960

model year Cadillacs is not a “defect which relates to motor

vehicle safety” under Section 113(c)(2) of the National Traffic

and Motor Vehicle Safety Act of 1966 (15 U.S.C.

§ 1402(e)(2)).

'SDr. Tetelman used other data as well, but the Court relies on that

portion of his analysis which is based on the life history of these

automobiles.

58a

3. The Order of the Administrator of the National

Highway Traffic Safety Administration of January 10, 1974

ordering General Motors to furnish the defect notification

specified in Section 113(e) to owners of the Cadillacs involved

as provided in Section 113(a) and (b) is set aside.

OLIVER GASCH

Judge

April 25, 1975

Date