Class Action Litigation Report® is a one-stop resource for tracking the most important class-action and multi-party litigation across the nation, and across all subjects with particular focus on...
By Lisa Helem
Oct. 26 — Toyota, Ford and other automakers will have until Nov. 9 to respond to putative class claims that keyless ignitions lacking automatic shut-off features expose drivers and others to deadly carbon monoxide.
Judge Andre Birotte Jr. approved the automakers' request for more time to file their responses in an Oct. 26 order for the U.S. District Court for the Central District of California, where the would-be class suit is filed.
Meanwhile, the families of some who have died from carbon monoxide poisoning allegedly related to keyless ignition systems, including in a Lexus IS 250 and a Lincoln MKS, have filed wrongful death suits.
Another wrongful death suit, involving the driver of a Cadillac SRX, is expected to be filed by December.
Others who said they've been injured have filed personal injury lawsuits.
At least 13 people have died from carbon monoxide poisoning relating to alleged defective keyless ignition systems, the plaintiffs in the proposed class suit said in their complaint filed in August.
“The problem that we are seeing again and again is that it's very easy to exit these cars not knowing that the engine is still running. And if the car is left in an enclosed space, we're seeing horrifying incidences of carbon monoxide poisoning,” Martis Alex, an attorney for the would-be class plaintiffs, told Bloomberg BNA Oct. 21.
Alex is a partner with New York-based Labaton Sucharow LLP.
Reached by e-mail Oct. 26, Aaron Fowles, a spokesman for Toyota, said the company declined to comment on the Draeger case.
A spokeswoman for Ford said in an Oct. 23 e-mail that the company had no additional comment on the class suit.
When the suit was filed in August, Ford said in a statement, “Ford takes the safety of our customers very seriously; the keyless ignition system has proven to be a safe and reliable innovative feature that has been well-received by customers.”
Toyota Motor Corp., Ford Motor Co., and eight other automakers were sued Aug. 26 in a would-be class action.
The suit asserts claims that the keyless ignitions in a 2011 Toyota Prius, a 2014 Ford Fusion Hybrid and a host of other vehicles lacking “auto off” features are defective, unsafe and expose drivers and others to deadly carbon monoxide, according to the complaint.
Automakers concealed and failed to conduct a recall or fix the defect in their keyless ignition systems, nearly 30 car buyers and lessees allege.
The plaintiffs are asking for the manufacturers to provide an “auto-off” feature in the subject vehicles, Alex told Bloomberg BNA. “Is it a simple fix? We believe it is. It's a software fix,” she said.
The proposed safety mechanism would allow unattended vehicles with the engine still running to automatically turn off after a certain time, the plaintiffs said in their complaint.
The plaintiffs seek to sue the companies as a nationwide class for failing to recall an estimated 5 million vehicles.
Other carmakers named in the suit include Nissan Motor Co., Hyundai Motor America Inc. and General Motors Co.
Jim Trainor, a spokesman for Hyundai, also declined to comment on the class suit Oct. 26.
Several lawsuits have been filed by the families of those who have died or have been injured, allegedly due to carbon monoxide poisoning associated with keyless ignition systems.
One such suit, filed Aug. 20 by the family of a married Highland Park, Ill., couple, asserts wrongful death and product defect claims against Ford and its Lincoln Motor Co. division (Manfredini v. Ford Motor Co., Ill. Cir. Ct., 2:15-cv-06491, complaint filed, 8/20/15).
The suit, pending in an Illinois Circuit Court, alleges the keyless system in a 2013 Lincoln MKS led to the June deaths of Pasquale and Rina Fontanini, an attorney for the plaintiffs, Edward McNabola, said in an early October interview with Bloomberg BNA.
McNabola is with the Chicago, Ill.-based McNabola Law Group.
Ford, in a statement e-mailed to Bloomberg BNA Oct. 23, echoed the language in its August statement on the class suit.
The automaker “takes the safety of our customers very seriously,” the company said, and described its keyless system as “safe and reliable.”
Authorities believe the couple's home flooded with carbon monoxide from their car. The couple was initially unaware the car had been remotely started in their garage. Pasquale, overcome by the poisonous fumes, eventually collapsed while trying to shut off the idling vehicle, McNabola said.
The Office of the Lake County Coroner confirmed carbon monoxide poisoning as the cause of death for the couple.
“It was a devastating tragedy for the family. My clients were pillars of their community,” McNabola said. Pasquale, “still went to work 5 days a week at age 79,” he said.
The suit alleges that Ford's “Intelligent Access” keyless ignition system was “unreasonably dangerous” to consumers and that the automaker failed to warn consumers about risks or remedy them.
In another suit, filed against Toyota and related entities, Dr. Mary Rivera, a resident of Queens, N.Y., said she was found barely breathing on her bedroom floor after her 2008 Lexus ES 350 was left idling in the garage attached to her home (Rivera v. Toyota Motor N. Am.., E.D.N.Y., No. 1:10-cv-04998-KAM-RER, complaint filed 1/23/11).
Rivera didn't realize her vehicle, equipped with Toyota's “Smart Key” technology, was running and she had gone to bed for the night, her 2011 suit filed in the U.S. District Court for the Eastern District of New York alleged.
Her partner, Ernest Codelia Jr., was later found in the bed with no pulse and was declared dead, the complaint said.
The suit was settled and dismissed with prejudice in September 2014.
Noah Kushlefsky, the attorney for Rivera, declined to discuss specific terms of the confidential settlement in an Oct. 23 interview with Bloomberg BNA. But he said the settlement was “very fair” and Rivera was “satisfied with the outcome.”
“There's no happy in these types of cases,” Kushlefsky, of New York-based Kreindler & Kreindler LLP added. “The best you want is for your client to believe that they were treated fairly and that the outcome was reasonable.”
Kushlefsky said that Rivera, a former Fordham University professor, now has a full-time home health aide “who lives with her and assists her with all activities of daily living.”
In June 2011, six months after Rivera's suit was filed, Kimberlin Nickles, the mother of Chastity Glisson, filed a wrongful death suit over Glisson's August 2010 death (Nickles vs. Gables Construction Inc., Fla. Cir. Ct., No. CACE11013565, complaint filed, 6/14/11).
The engine of Glisson's 2006 Lexus IS 250, which was equipped with a keyless fob, continued to run in her garage, unbeknownst to her and to her boyfriend, who found her collapsed in a bathroom, plaintiffs in the class suit said in their complaint.
The Nickles suit is pending in a Florida Circuit Court, according to the court's docket. But, Toyota and its related entities were dismissed from the suit with prejudice in April 2014, according to an orderwhich Fowles, the Toyota spokesman, sent to Bloomberg BNA Oct. 26.
Fowles declined to comment on whether Toyota and Nickles settled the suit.
Attorneys for Nickles didn't respond to requests for comment Oct. 23 and 26.
Kushlefsky added that by early December, he's planning to file a new suit on behalf of Barbara Russell, an 86-year-old Florida woman who died in February after the engine in her 2010 Cadillac SRX was left idling.
Alex, the plaintiffs' attorney in the class suit, said the rationale for the class action is “simple—we want to save lives and protect millions of drivers and their families who are at risk from these automobiles that have keyless ignition fob systems, but do not have any kind of an auto shut-off.”
Automakers “failed to understand the hazards associated with replacing the Physical Key with a Keyless Fob,” including the risk that drivers used to using a traditional key to turn off a vehicle would ‘fail to appreciate that a keyless fob plays no role in turning off” the engine of a keyless fob-equipped vehicle,” the class complaint says.
Labaton Sucharow LLP and Hagens Berman Sobol Shapiro LLP represents the plaintiffs in the class suit.
Morgan Lewis and Bockius LLP represents Toyota Motor Sales USA, Inc. in the class suit.
O'Melveny and Myers LLP represents Ford Motor Co. in the class suit.
Shook Hardy and Bacon LLP represents Nissan North America Inc. and Nissan Design America Inc. in the class suit.
Kirkland and Ellis LLP represents General Motors Co. in the class suit.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC represents Hyundai Motor America Inc. and Hyundai America Technical Center, Inc. in the class suit.
With assistance from Michael Bologna in Chicago
To contact the reporter on this story: Lisa Helem in Washington at firstname.lastname@example.org.
To contact the editor responsible for this story: Steven Patrick at email@example.com.
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