Ford Ducks Cracked Tailgate Class Action

SAN FRANCISCO (CN) - A federal judge has dismissed claims that Ford Motor Company should have disclosed a problem with "cracked tailgates" and that the defect posed safety risks.

Consumers sued Ford in 2011, claiming the company knew the plastic "appliqué," just below the flip-glass, or "backlite," on Explorers, Mercury Mountaineers and Lincoln Aviators tend to crack vertically, causing safety issues. They say the undisclosed defect occurred on models manufactured between 2002 and 2005, and that, in some instances, water leaked through the crack, causing metal hardware to corrode and the flip-glass to fall out.

The missing glass causes an "ejection portal" for people and objects, according to a 115-page consolidated class action compliant.

Sally Nettleton, James Denning, Al Morelli, Spencer Ware, Brian Martin and Zane Dery sued for violations of California's Consumer Legal Remedies Act and unfair competition law, New Jersey's Consumer Fraud Act and Florida's Deceptive and Unfair Trade Practices Act.

They sought class certification, a court order directing Ford to initiate a recall or free replacement program, and monetary damages.

Ford moved for summary judgment in July 2015, arguing in part that it had no obligation to disclose the defect and that it poses no safety risks to motorists.

U.S. District Judge Richard Seeborg heard four hours of testimony on Nov. 14, where Ford attorneys argued against class certification and for the exclusion of evidence and testimony.

Seeborg issued a ruling the day before Thanksgiving, granting the motion to exclude the expert testimony of glass-glazing expert Henry Chamberlain, auto safety expert Don Phillips, metal corrosion expert Carl Locke and auto appraiser Richard Hixenbaugh.

"To begin, the opinion of plaintiffs' experts Chamberlain, Phillips and Locke is not admissible," he wrote in the 25-page order. "Although Chamberlain is undeniably qualified to testify about glazing and glass installation, he does not possess the requisite experience, training or education to offer opinions about the cracking appliqué, corrosion or the rate of cracking in the appliqués."

Seeborg also questioned the methods Chamberlain and Locke used to come to their respective conclusions about the cracking problem, and said that Phillips' testimony likewise lacked reliability and credibility.

"Without the testimony of these three experts about the alleged safety risks caused by the cracked appliqué, no reasonable jury could find that Ford had a duty to disclose those risks to consumers or that the cracked appliqué poses safety risks at all," he said.

Seeborg rejected the plaintiffs' depreciation claim based on testimony of a fourth expert witness.

"Hixenbaugh's testimony about the universal rate of depreciation for all class vehicles is quintessential ipse dixit, and therefore inadmissible," he said. "Ipse dixit" is defined as a dogmatic and unproven statement.

"Without Hixenbaugh's testimony, plaintiffs cannot establish that Florida plaintiff Dery suffered actual damages resulting from Ford's alleged deceptive acts. Proof of actual damages is an essential element of a Florida Deceptive and Unfair Trade Practices Act claim, and therefore without admissible proof of actual damages, no reasonable jury could find in Dery's favor."

He added: "Because Ford's motion for summary judgment against the individual plaintiffs is granted, plaintiffs' motion for class certification is denied as moot."

Courthouse News on Monday spoke briefly with the plaintiffs' attorney, Adam Levitt of Grant & Eisenhofer in Chicago. He said that he could not yet comment on the case when asked whether his clients intended to file a fourth amended complaint and what he thought about Seeborg's assessment of his expert witnesses.

Ford attorneys Amir Nassihi of Shook Hardy & Bacon in San Francisco did not immediately return a phone call Monday, and John Thomas of Dykema Gossett in Ann Arbor, Michigan, was not in the office Monday.

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