Latest Tracy suit against Toyota filed over Lexus death

By Michelle Massey, East Texas Bureau | Feb 17, 2010

E. Todd Tracy MARSHALL-- On behalf of a Marshall family, Dallas attorney Todd Tracy has filed suit against Toyota alleging that a 2007 Lexus suddenly accelerated crashing into a pickup truck causing the death of a man on his way to a Longhorn game.

E. Todd Tracy

MARSHALL-- On behalf of a Marshall family, Dallas attorney Todd Tracy has filed suit against Toyota alleging that a 2007 Lexus suddenly accelerated crashing into a pickup truck causing the death of a man on his way to a Longhorn game.

Todd, William, Phyllis, Billy C., Frieda and Mary Fitts, individually and as representative of the estate of George E. Fitts, deceased, filed suit against Toyota Motor Corp. on Feb. 15 in the Marshall Division of the Eastern District of Texas.

Lexus vehicles are manufactured by Toyota.

According to the complaint, George Fitts and his family were on their way to watch a University of Texas Longhorns football game on Nov. 6, 2009, in his 2007 Lexus ES 350. The suit states they were traveling southbound on U.S. 79, just outside of Hearne, Texas, when the Lexus crashed into a pickup truck that was stopped and preparing to turn.

The 72-year-old George Fitts suffered fatal injuries and passengers in the Lexus, William and Billy C. Fitts, suffered serious injuries.

According to the lawsuit, the trooper who investigated the accident said Fitts apparently failed to see the other vehicle but the family claims that the Lexus suddenly accelerated out of control and could not be stopped. The family says the vehicle's cruise control was engaged at the time of the crash, the suit states.

According to the police report, everyone in the Lexus was wearing a seat belt.

The lawsuit alleges that the Lexus is unreasonably dangerous and defective due to a propensity for sudden unwanted acceleration.

E. Todd Tracy, a Dallas attorney specializing in auto product liability cases, has filed several suits against Toyota in recent weeks.

In this case, he writes that Toyota has experienced similar incidents since 2003, with numerous and various vehicle models dating back to 1999. The suit alleges that Toyota has investigated similar incidents in other countries and has corrected these issues but, in the United States, has blamed the problem on driver error and floor mat interference.

Various Toyota vehicles are prone to accelerate or not function correctly when subjected to electrical magnetic interference, radio interference, two-way radios or other devices, Tracy states. The National Highway Traffic Safety Administration tested the vehicles and their results prove that Toyota's engine rpm increased with this interference, the lawsuit claims.

According to court records, Toyota has issued a variety recalls, technical service bulletins, silent recalls and dealer notices to evaluate the electronic control unit in various Toyotas.

Despite the recall for gas pedals sticking on other models, Toyota has not issued a recall on any Lexus for this problem. Toyota has also not issued any recall on electrical issues, such as EMI, radio interference, computer code or chip manufacturing issues, or electronic control unit circuitry issues.

The lawsuit states that Toyota failed to use a brake override design, a smart pedal design and a three-channel electrical system that has multiple redundant systems to prevent a malfunction that could lead to unwanted acceleration.

The plaintiffs also allege that Toyota did not conduct critical design analysis on its electronic control systems or proper engineering analysis.

The suit alleges Toyota knew of the acceleration problems and willingly attempted to hide or cover them up.

"Defendant knew its vehicles were prone to experience unwanted sudden acceleration because defendant had its event data recorder supplier stop recording engine speed/rpm, if the brake pedal was depressed, if the accelerator pedal was depressed, if cruise control was on, the position of the transmission selector lower because this data would indicate defendant's sudden unwanted acceleration problems," the lawsuit states.

Causes of action filed against Toyota include design, manufacture, and marketing defects, negligence, breach of express and implied warranties, and misrepresentation of quality, reliability and safety.

On Feb. 4, the National Highway Traffic Safety Administration announced that it is initiating an investigation into Toyota's electronic throttle systems as the cause of the sudden unwanted acceleration. On Feb. 9, Toyota announced a third recall of its vehicles that included Prius hybrids and Lexus 250h for brake system problems.

On behalf of the deceased, the lawsuit is seeking damages for physical and emotional pain, torment, mental anguish, emotional distress, and medical, funeral, and burial expenses. The family is also seeking damages for loss of consortium, mental anguish, pain and suffering, extreme emotional distress, physical impairment, disfigurement, interference with daily activities, reduced capacity to enjoy life, medical expenses and lost wages.

The plaintiffs are represented by Dallas attorney E. Todd Tracy of The Tracy Firm and Marshall attorney Melissa R. Smith of Gillam and Smith LLP.

U.S. District Judge T. John Ward is assigned to the litigation.

On Tuesday, Feb. 16, the NHTSA announced that it will open an investigation into the manner in which Toyota has handled the three recalls. The agency will require Toyota to provide documents showing when and how it learned of the defects in the Toyota vehicles.

Under federal law, all auto manufacturers are required to notify the administration within five days after a determination is made that a safety defect exists and to promptly conduct a recall.

"Safety recalls are very serious matters and automakers are required to quickly report defects," said U.S. Transportation Secretary Ray LaHood.

The Administration can hold Toyota liable for a maximum of $16.4 million in civil penalties.

Case No 2:10cv00052

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