Friday, September 29, 2023
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Ford Spars With SUV Owners Over Broken Tailgate Case

SAN FRANCISCO (CN) - A federal judge on Friday shot down several of Ford Motor's reasons to deny class certification in a lawsuit claiming defects in older-model SUVs cause tailgates to fall off.

Attorneys for Ford and the class sparred in a marathon four-hour session before U.S. District Judge Richard Seeborg on Friday, arguing the merits of motions to exclude evidence and testimony, grant summary judgment and certify a class of car buyers.

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

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

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

The automaker received 1,723 reports of the applique detaching from affected vehicles with some incidents occurring while vehicles traveled at high speeds, according to evidence cited by the plaintiffs.

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

The plaintiffs asked the judge to certify three classes of car buyers in New Jersey, Florida and California. Class attorney Adam Levitt said all three proposed classes meet the requirements necessary for certification.

Levitt 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 argued 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.

"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, adding the statute of limitations and other issues cited by Ford were not valid reasons for denying class certification.

Ford also sought to exclude the testimony of three expert witnesses cited by the plaintiffs.

The automaker's 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 affected tailgates.

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

"Chamberlain says if you have corroded brackets, it can cause the glass to shatter," replied plaintiff class attorney John Tangren. "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 show a link between the cracked appliques, corroding metal parts, shattered glass and safety risks.

Ford also urged the judge to reject Hixenbaugh's appraisal that the alleged defect cost potential class members damages totaling 15 percent of the value 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 that is based solely on his experience appraising vehicles.

However, the plaintiffs countered 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 the motion for summary judgment, Tew argued no named plaintiffs have experienced any of the safety hazards alleged in the class action.

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

The Ford attorney said 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 among the plaintiffs does not require that they get hurt, just that they were all exposed to the same risk and loss in value.

Citing asevidence that Ford knew of and hid the defect, the plaintiffs pointed to a 2003 email sent by Ford team program plant manager Joseph Watson, in which he projected a "100 percent failure rate" for the appliques.

"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 of debate, suggesting with his questions that he will likely grant the motion for class certification but giving no clear indication on how he will rule on the other motions before him.

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