Jerry Cox Steven Bradbury and Why 30 Million Takata Airbags Are Not Being Recalled

When he was a partner at Dechert in Washington, D.C., Steven Bradbury represented Takata in negotiating with the government over Takata’s faulty airbags. 

Steven Bradbury

Takata ended up pleading guilty to a criminal offense and declared bankruptcy. More than 25 people have been killed by exploding Takata airbags and hundreds have been injured.

Dechert and Bradbury were involved with negotiating the consent orders that led to more than 50 million cars with Takata airbags with ammonium nitrate inflators being recalled. 

But there was a carve out – 30 million vehicles with Takata airbags with ammonium nitrate inflators that had an added desiccant were not recalled.

Bradbury is now general counsel at the Department of Transportation. But as Senator Bill Nelson put it at Bradbury’s confirmation hearing, Bradbury was “one of the main advocates for a company that has done dastardly things and that has, according to U.S. attorneys, violated criminal laws.”

Jerry Cox consulted with Takata during the height of the crisis six years ago. He is the author of Killer Airbags: The Deadly Secret Automakers Don’t Want You to Know.

“Steven Bradbury was Takata’s lawyer in 2015 when Takata cut a deal with the National Highway Traffic Safety Administration (NHTSA),” Cox told Corporate Crime Reporter in an interview earlier this month. “The deal was that Takata would recall all of the inflators that had ammonium nitrate in them. But there was a carve out. These were 30 million vehicles with inflators into which Takata had placed a desiccant – something that absorbs moisture. You mix it in, you put it in the canister, and you hope that it will attract water faster than the ammonium nitrate will.” 

“The Obama NHTSA said – okay fine, we will carve those 30 million out. No recall. But if you can’t show us that by December 31, 2019 that they are safe, they must also be recalled.”

“Trump is elected and Steven Bradbury is appointed general counsel at the Department of Transportation. Bradbury was with the law firm Dechert and represented Takata during the settlement negotiations with the government. He is also now the Acting Deputy Secretary at the Department of Transportation.”

“December 31 comes. Nothing. No word. No indication that anybody has been working on it. All of a sudden in May 2020, they put something up on their website saying – we have decided we are not going to recall these. Guess what, we have these engineering reports that tell us what we need to know about these inflators.”

“Who do you suppose authored those reports? The car manufacturers who would have to pay for those recalls. The Department of Transportation simply accepted what they got from the car manufacturers. They simply didn’t solicit any independent analysis or subject what the car manufacturers gave them to any criticism. They did it all in secret.”

Who made the decision?

“Nobody knows. All we know is what they posted on their website. They posted that they decided not to recall the 30 million vehicles. They then posted the engineering report by Northrop Grumman by the car manufacturers. Exponent also filed a report on the subject. TKGlobal, the remains of Takata, filed a four page report basically saying – everything is fine. Nothing here to worry about.”

Do you trust those reports?

“Let me put it this way. If I had to trust someone who had a multi-billion dollar financial interest in a particular result and somebody who has no financial interest in a result, I would go with the one who has no financial interest. In this case, those people are the Takata engineer whistleblowers. To a man, they all insist that the report NHTSA relied on is right out of the Takata playbook. Doing engineering studies to justify the conclusion they want rather than taking safety and good engineering into account.”

Has anyone been killed or injured by these 30 million cars with desiccated inflators?

“There is no record that any of those desiccated inflators have killed anyone yet. But the people who designed those inflators, the Takata whistleblowers, insist that the desiccant in those inflators will saturate. When they saturate you will have exactly the same problem with the ammonium nitrate in those inflators that you have with the ones that have killed people.”

“While at Dechert, Bradbury was the attorney for Takata. They did a sweetheart deal. And it was pretty amazing lawyering. He is an amazingly good lawyer. He has done much at the Department of Transportation that I fully support.” 

“The focus of his confirmation hearing was his role in the George Bush administration. He was at the Justice Department. And at the confirmation hearing, the focus was on his role in the defense of enhanced interrogation techniques. Some people call them the torture memos. He was one of the authors. It was almost a secondary issue that he was becoming general counsel of a department with which you just cut a deal for Takata. I’m not sure what he said. I’ve heard he has recused himself. But the acting NHTSA administrator – James Owens was also Bradury’s deputy – he was the deputy general counsel at the Department of Transportation.”

We don’t know whether Bradbury had anything to do with this decision not to recall the vehicles?

“I don’t know if anybody has ever asked him. Whether he decided it or not formally or informally is not as consequential to people as the fact that those will not be recalled anytime soon. And that decision was based on the same playbook that Takata used – which is to keep delaying.”

“The Takata whistleblowers have looked at the reports that the Department of Transportation relied upon and concluded that it doesn’t say that the desiccated inflators were safe. That was supposed to be the finding upon which you would not recall. It does not say they are safe. It says that the desiccant will slow down the process. They will eventually become saturated and the same problem will occur in the future. But that is exactly what Takata has always done – delay recalls as long as possible.”

Those 30 million are not being recalled?

“With the exception of about 180,000 or so VW cars. But that’s 180,000 out of 30 million. Nobody has asked – what so special about these VWs that makes their desiccated inflators dangerous, but the other 29.8 million safe enough to leave on the road?”

“One thing I want to emphasize. There is nothing partisan about this. When Obama was in, somebody started an investigation about Takata, asked for documents and then cancelled the investigation even before receiving the documents. Something was fishy about that. The man in charge of NHTSA at the time was David Strickland. Do you know where David Strickland is today? He is the Democratic staff director on the Senate Commerce Committee. You wonder why there has been no oversight about how the Trump administration has handled this? Because the Democrats don’t dare go there.” 

We reached out to the Department of Transportation to find out who made the decision to not recall the 30 million vehicles and whether Bradbury had any involvement in the matter.

“Steve Bradbury has recused himself completely and will continue to recuse himself from any Takata-related matters,” a Department of Transportation spokesperson said.  “He has had no involvement in any discussions or decisions relating in any way to Takata since he was confirmed as the Department’s General Counsel in November 2017.”

If it wasn’t Bradbury, who made the decision?

A NHTSA spokesperson writes back: “Takata and vehicle manufacturers were given until December 31, 2019 to inform NHTSA about the safety of desiccated Takata PSAN (phase-stabilized ammonium nitrate) airbag inflators so that the agency could determine whether they should be recalled.  NHTSA received the information from three sources – Exponent, TK Global, and the Independent Testing Coalition.”  

“NHTSA independently assessed that information and worked closely with our leading outside propellant expert to evaluate it and other available data.  Following consultation with the agency, one manufacturer agreed to the recall of inflators with the highest risk of future failure, and NHTSA is in discussions with other manufacturers regarding future monitoring of inflators in the field. If these inflators show signs of degradation such that they present an unreasonable risk to public safety, NHTSA will not hesitate to act. All future determinations will be evidence based.”

Then it was James Owens, the acting NHTSA administrator and a former deputy to Bradbury at the Department of Transportation who made the decision?

Yes, it was Owens, the Department of Transportation’s spokesman says.

Cox says that Bradbury’s “technical recusal can do little to reassure the public when the Department’s actual decision-maker reports to him.” 

“Somebody must take responsibility for making such a momentous decision in secret, with no input from the engineers who designed the subject inflators, all of whom vehemently insist that they are not safe and should not have been carved out of the recalls in 2015,” Cox said.

“Automakers stand to lose billions of dollars if they have to recall and replace the desiccated inflators.”  

“NHTSA chose to rely on a study the car manufacturers paid for instead of consulting the engineers who designed those inflators and who have no personal financial stake in the decision,” Cox said.

“Those engineers vehemently argue that VW’s decision to recall so many of its cars with desiccated inflators reflects the obvious fact that in time, the desiccant will saturate and the explosive will start to deteriorate. NHTSA’s decision to stand back and watch it happen serves only one purpose. The older a car is when the recall notice goes out, the less likely it will ever get brought in for a repair.  That’s the deadly secret automakers don’t want people to know.”

[For the complete Interview with Jerry Cox,  34 Corporate Crime Reporter 40(12), October 19, 2020, print edition only.]

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