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Ford Fights Class Certification on Tailgates

SAN FRANCISCO (CN) - A federal judge Friday rejected several Ford Motors arguments to deny class certification in a lawsuit that claims defects in older-model utility vehicles cause tailgates to fall off its cars.

Attorneys for Ford and the plaintiff class sparred in a four-hour session before U.S. District Judge Richard Seeborg on Nov. 13, arguing the merits of motions on class certification, summary judgment and exclusion of evidence and testimony.

Lead plaintiff Sally Nettleson sued the automaker in June 2011, claiming Ford hid the safety risks associated with faulty tailgate parts in 2002-2005 Ford Explorers and Mercury Mountaineers, and in 2003-2005 Lincoln Aviators.

The plaintiffs claim a glass appliqué in the affected tailgates is susceptible to cracking, and that the cracked glass lets moisture seep in and corrode metal latches, potentially causing rear glass panels to shatter and tailgates to fall off cars.

The plaintiffs say Ford knew of the defect as early as June 2001, when dealers reported cracked appliqués on brand vehicles before they were sold to customers.

Ford received 1,723 reports of the appliqué detaching from vehicles, sometimes while vehicles traveled at high speeds, the plaintiffs claimed.

"All plaintiffs have shown is that Ford knew the appliqué might crack, not that there was any certainty," Ford attorney Eric Tew told the judge. "Manufacturers always know problems may happen, not that they're certain it will affect vehicles."

Plaintiffs' attorney Adam Levitt asked Seeborg to certify three classes of car buyers, in New Jersey, Florida and California. He urged the judge to reject Ford's "mischaracterization" of the defect as a cosmetic issue rather than a safety hazard.

"The dominant question in this case is whether there is a safety issue," Levitt said.

Tew said the motion for class certification should be dismissed on several grounds. He said many of the claims are time-barred; some vehicles were purchased for commercial rather than personal use; and different buyers surveyed different information before buying the cars.

Seeborg was skeptical. "The logical extension of your argument is that because some people will never pay attention [to reports of safety risks], you can never certify a class," Seeborg replied. He said the statute of limitations and other issues cited by Ford were not valid reasons to deny class certification .

Ford also sought to exclude testimony of three expert witnesses. Ford attorneys claimed auto glass expert Henry Chamberlain has no background in auto safety or rust corrosion, which are key elements of an analysis he conducted on the tailgates.

Ford also argued that Chamberlain haphazardly gathered the 88 tailgates he tested from junkyards, and that the study has no statistical significance.

Plaintiffs' attorney John Tangren disputed that. "Chamberlain says if you have corroded brackets, it can cause the glass to shatter," he said. "This is not that controversial."

Ford attorneys asked the judge to disregard the testimony of auto experts Carl Locke, Donald Phillips and Richard Hixenbaugh as well.

The plaintiffs say the combined testimony of the experts shows a link between the cracked appliqués, corroding metal parts, shattered glass and safety risks.

Ford urged the judge to reject Hixenbaugh's appraisal that the alleged defect cost potential class members damages totaling 15 percent of what they paid for the vehicles.

"His experience regarding individual vehicles provides no basis to make this opinion, and this opinion is based on thin air," Tew said.

Seeborg agreed that an assessment of damages requires more than an expert's opinion based solely on his experience appraising vehicles.

But the plaintiffs said that no comparable market data exists for Hixenbaugh to analyze because other vehicles with defects that pose safety risks have been taken off the market or recalled.

Regarding his motion for summary judgment , Tew said no named plaintiffs have experienced any of the safety hazards they alleged.

"They say you should have disclosed this, and yet they've driven all these years with a cracked appliqué showing they're really not that concerned about the risk," Tew said.

He claimed the plaintiffs don't seem to truly believe the cars pose a safety risk, despite a few plaintiffs' anecdotal stories about getting minor scratches from cracked glass.

Levitt countered that the ascertainable loss does not require that the plaintiffs be hurt, just that they were all exposed to the same risk and loss in value.

As evidence that Ford knew of and hid the defect, the plaintiffs cited a 2003 email sent by Ford team program plant manager Joseph Watson, in which he projected a "100% failure rate" for the appliqués.

"This person was not an engineer," Tew responded. "We've produced 150,000 pages of documents, and they've seized on this one email."

Levitt replied that despite Ford's attempt to downplay the manager's role and expertise, the evidence should be weighed by a jury.

Seeborg ended the hearing after four hours, suggesting by his questions that he appears to be leaning toward granting class certification, but giving no clear indication on how he will rule on the other motions.

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