[THE INVESTOR] South Korean actor and singer Son Ji-chang in December filed a litigation seeking class action status against Tesla Motors in California, after discovering that several cases of unintended acceleration involving the Model X had been reported to the National Highway Traffic Safety Administration. 

Son said his Model X vehicle had unexpectedly accelerated on full power while he was trying to park inside his garage, causing him to crash through a wall and into his living room, injuring him and his son. 

Tesla, however, denied the allegation and said the crash was entirely Son’s fault. 

Son Ji-chang's Facebook post

The Investor talked to Richard McCune of McCune Wright Arevalo, LLP, on Jan. 7, in a phone interview, where Son’s attorney claimed there is a fighting chance to win the case against Tesla if the US luxury automaker goes through with the litigation filed against it. 

McCune also said his firm is seeking to enlist support from US auto safety investigators to pressure Tesla into recalling its Model X vehicles. 

McCune Wright Arevalo is the same law firm that filed a class action lawsuit against Toyota in 2009, which resulted in the Japanese automaker settling claims of up to US$1.6 billion.

Below is the original transcript of the interview between The Investor and Son’s attorney McCune.

Q: According to the press release, you, on behalf of your plaintiff Mr. Son, will be submitting a letter to the National Highway Traffic Safety Administration for an investigation into Tesla Model X. When will you submit a letter and how long will it take to get the investigation results from the NHTSA? What will the NHTSA be exactly investigating?

A: I would anticipate that we will get that to them either later today or on Monday. We will send it to them and then it’s up to the NHTSA to act on it. I don’t have any way of knowing how long that would take for them to do that.

Q: Are you ultimately intending that Tesla should order a recall?

A: We are. That’s what we think is appropriate.

Q: How do you think the NHTSA’s decision will affect the ongoing lawsuit?

A: It is different from the current lawsuit. The government has the authority to issue recalls and so can a court. Our main objective is to get this fixed, whether it’s the government or through the lawsuit. That’s not as important to us (in as much) as it checks before somebody gets hurt really bad.

Q: It is my understanding that the recall rate at the NHTSA for sudden acceleration cases is rare.

A: They don’t recall very often. And that was part of the problem with Toyota. There has been calls for investigation and recall for many years, but the NHTSA has not acted on it. Recalls are rare and it needs to be in very serious situations. Part of the reason is that companies, when they recognize the seriousness of the situation, often take measure to prevent a recall from happening. I am hoping that’s what exactly happens here.

Q: What is the amount the plaintiff is seeking in damages?

A: In lawsuit, we don’t list an amount we are seeking. That will be developed during the case. There is not a specific dollar amount.

Q: My understanding is that the total damages sought in a class action suit has to exceed US$5 million threshold to proceed at the federal court.

A: Yes, that’s correct. That’s a jurisdictional issue. In order to proceed under what’s called the Class Action Fairness Act, it has to exceed US$5 million. But that involves a lot of things. It involves how much it would cost Tesla to make the change and it includes the attorney’s fees. But I am comfortable that the cost of that would exceed US$5 million, but as to what the full claim is, we aren’t there yet.

Q: How long will it take for this lawsuit to be resolved?

A: That’s hard to know. What I would hope would happen is that Tesla will take this seriously and understand the problem and work to resolve it. And if they do that, it could happen quickly. If Tesla decides they aren’t going to do that and proceed with the litigation, it could take years. So we hope it’s short and Tesla resolves this before anyone gets killed due to this. Which is what often happens in sudden acceleration cases. But if they choose not to do that and just litigate the case, it could take a long time.

Q: What is the likelihood of Tesla settling the case?

A: I don’t have any way of judging that at this point. I haven’t had any settlement discussion at all with Tesla so I don’t know.

The only statement I saw was what they publicly released denying any responsibility. That’s all I know about what Tesla’s position is.

Q: Tesla has been claiming the sudden acceleration was the result of the driver fully pressing the accelerator pedal. On what ground is Tesla asserting such a position? What kind of evidence is there to prove the accident was not the plaintiff’s fault?

A: I can tell you from our perspective that Mr. Son knows what he did and what he did not as no reasonable person would just put the pedal all the way down to the floor as they are approaching a garage that goes through their living room. That doesn’t make any sense. I think Tesla will try to resort to the data logs to support their position. I think when we review what they have, it seems like there are some inconsistencies which would indicate to us that it is not reliable.

If this car was properly engineered, it wouldn’t allow someone to drive into the wall of the house. That’s just poor engineering in our view. That doesn’t make any sense to us when the car knows it’s approaching the garage. It knows it’s at home and knows there is a wall. A properly engineered car like the Tesla, which excels for the kind of money that it sells for, would have been programmed to say there has to be an error in instruction. It would not have driven straight in through a wall.

Q: Any possibility of Tesla changing the video log?

A: I don’t have any reason to say that. We received few pictures and it’s hard for me to believe that is the full video log. We will have to find that out during the lawsuit.

Q: What are the chances of proving the sudden unintended acceleration cases in the US?

A: Well every case is different. Toyota was a big case in the US with the sudden acceleration. Toyota, like Tesla, blamed the driver in each case. But what’s important is if it was just one or two accidents, that makes it tougher to prove. But when you are looking at the number of accidents that all seem to be sort of the same, that is pretty powerful proof that there is a problem beyond just the driver’s mistake. But as to how we prove it, we will look through all the coding to see if there is a problem with software coding. That happened in Toyota’s case. We will look through the logs of our accidents and other accidents. So there is a lot of work that we have to do to figure out what’s going on here. I would hope Tesla is doing the same.

Q: What are the similarities and differences between Toyota’s case and Tesla’s?

A: There certainly is differences in technology. Tesla has the cutting-edge technology and that was not the case with Toyota vehicles. The technology is a lot different. But where the parallel between (them) is the initial stage. What I would view as major reaction, saying it was entirely the driver’s fault even though there is a high rate of accidents with sudden acceleration, indicating something more is going on. As to whether it’s settled, that’s something I can’t possibly know it at this point until a lot of things happen.
Ultimately at the end of the day, it’s up to Tesla to resolve it or we go to court and ask them to resolve it. But we don’t have control over whatever Tesla is going to do.

Tesla has the ability to download a software fix to this and that’s all that needs to happen. This isn’t as complicated as it was with Toyota that required significant changes to the hardware and software of its vehicles. Here Tesla, because of its advanced engineering, has the ability to upload software updates that could take care of this problem. It’s a very simple fix. I would hope that as they think about it, they would make that change.

Q: Is Tesla aware of this problem?

A: I can’t speak for Tesla. But what I can tell you is they are obviously aware of the lawsuit and the lawsuit says there are 10 accidents. The lawsuit has told them the rate of sudden acceleration in the X car are much higher than the other vehicles. So we know Tesla knows that. Why is it not taking action? I hope they are taking action, but they haven’t publicly announced that they are taking action.

Q: Why did Mr. Son decide to make this issue a class action lawsuit?

A: Well, I don’t want to speak for Mr. Son. But what I can tell you is that he is concerned about the safety of the vehicle, not only for what happened to him, but it can happen to others. So if he was just suing on behalf of himself, that wouldn’t solve the problem for all the other vehicles that are out there. So the class action mechanism is the way to try to fix it for everybody before what happens to him happens to somebody else.

Q: Have you contacted other Tesla X owners who have reported a similar incident and what are their responses to the class action suit?

A: Yes, I have talked with other Tesla owners who have experienced these problems. Anybody who has experienced this, I would assume, would be very frightened by it and hope it gets fixed. So anything that happens to resolve it, they are supportive of.

Q: What’s your stance of Tesla’s claim that Mr. Son blackmailed the automaker?

A: That’s nonsense, definitely nonsense and it didn’t happen. They are trying, it appears to smear Mr. Son, rather than defend the allegations in their lawsuit that this case is about, whether their vehicle is safe or not and whether they can make changes to make it safe. And their name-calling is not only absolutely wrong but it’s inappropriate.

Q: What kind of impact would this lawsuit have against Tesla? Would they care?

A: Well I don’t know whether they would care about this case, but they should care about this case. One of major selling points for Tesla has been both their safety and high-level of engineering. It’s an advanced level of engineering. And it seems like, from our perspective, they failed in both as they relate to this particular problem. I would hope that Tesla shows that it’s a new company that handles thing the right way and if it fixes it, than that’s great. But if it doesn’t I think this could have some consequences. And it would show that maybe they aren’t as serious in this area as they are saying so. 

I don’t know what they are going to do and I don’t know the effect of this, but I would certainly hope they would take this very seriously because we are talking about people’s lives. And you know I represented a number of families that have had loved ones die in sudden acceleration cases and it hasn’t been with Tesla, but it has been with the other vehicles. There are really bad things that can happen here. So I am certainly hoping Tesla recognizes it and makes preventive changes.

By Ahn Sung-mi (sahn@heraldcorp.com)