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IMS failure = small claim court?
boxster99 - Wednesday, 8 February, 2012, at 8:33:40 am
Has any one taken Porsche to the small claim court about their IMS flaw? There is a victory for Honda Civic Hydrid owner on CA.

I love the fact that no lawyer allows in this court!!

Tony
Correction - in most cases...
Lawdevil & CURVN8R - Wednesday, 8 February, 2012, at 8:56:13 am
lawyers are allowed, just not required. In Georgia, lawyers are required for corporations, partnerships, etc. - just not required for individuals.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Two problems
Steve (Morro Bay) - Wednesday, 8 February, 2012, at 9:07:03 am
One, I believe that while she won the case, it can be appealed to a different court in which Honda actually can bring their lawyers (probably costing more than the amount lost though).

Two, what would one claim against Porsche? They made an engine which can break. It happens.



Edited 1 time(s). Last edit at 02/08/2012 09:07AM by Steve (Berlin & LA). (view changes)
I haven't heard of any valid claim, however...
Boxsterra - Wednesday, 8 February, 2012, at 10:27:21 am
...if someone takes Porsche to court and loses I could see an unjust enrichment charge against the people who sell "solutions".
Re: I haven't heard of any valid claim, however...
danz76 - Wednesday, 8 February, 2012, at 10:32:41 am
Not likely. The people who sell "solutions" are not bound by a decision that was rendered in a case where they were not parties. Further, an unjust enrichment claim requires the plaintiff to prove that (1) the defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendant to make restitution. Again, if one purchased an IMS solution that failed, the burden would be on the plaintiff to show that the seller sold a product that it knew to be defective.
Re: IMS failure = small claim court?
danz76 - Wednesday, 8 February, 2012, at 10:29:25 am
You can try to file one, but the burden is always on the plaintiff to a bring a cause of action. To meet your burden, one would need an expert witness who is competent and qualified (legal - evidentiary terms of art) to render a written opinion and testify in court that the IMS flaw is a design defect. Porsche likely has mountains of experts who would testify that the percentage failure rate is so small that the IMS can not be a design defect. My experience has been that any expert worth hiring will charge at least $10k and likely much more to render such an opinion and provide testimony. The expert would also need to be able to obtain data available only from Porsche on the design of the IMS, the amount of cars manufactured and the reported failure rate, which is a massive amount of discovery that can not be obtained in a small claims action. You would also need to bring the case within your state's applicable statute of limitations. If your state has specific lemon law procedures, Porsche may defend on the ground that your small claims court action is an end-run around the lemon law procedures, and move to have the case dismissed if you have not followed those procedures. Also keep in mind that there are caps on recover in small claims court, which are usually in the range of $3k.
Radio failure = small claim court? eye rolling smiley
Gary in SoFL - Wednesday, 8 February, 2012, at 11:28:53 am
Don't you think all the tricks have been tried already, with no real returns?

The only payback I've noticed is the handful of first time owners, who've used Porsche dealers for service, weren't long out of warranty, and usually whined incessantly.

Expecting coverage for a decade old car, that's had several owners, many miles, and who knows how much abuse, and is now having some sort of engine problem with an easy, and many most times poorly diagnosed cause....is sheer folly, IMHO, of course.
Nevertheless, as far as I know, there is almost always the option to appeal to a higher level trial court with full discovery (with the resulting much higher costs). It is likely Porsche would appeal any such case and the cost of pursuing the case further would be prohibitive for an individual defendant.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Re: IMS failure = small claim court?
boxster99 - Wednesday, 8 February, 2012, at 12:37:19 pm
For the record, my 99 is still running fine for me for the past 13 years (knock on wood 3 times..) About the small claim court, it is something I were thinking out loud while reading the article about the Honda Civic case. IMHO, if you think it is impossible then we might as well go back to the ancient years and live like a cage men/woman :-) All is take is a *will of one person* that doing something impossible. Remember the world used to be flat!! Enough said!
Re: IMS failure = small claim court?
danz76 - Wednesday, 8 February, 2012, at 12:57:54 pm
I don't think its impossible to bring the claim at all. For $15 - $20 one can file the suit and the clerk will gladly take your money, file your papers and assign you a trial date.
The matter of actually winning is an entirely different story. Sure, that is possible too, but given the level of complexity the claim and engineering issues involved, it would be cost prohibitive to pursue.
The smart thing to have done would have been in to file a class action suit many years ago (maybe 2003) when the defect was fresher and more apparent, but those suits are often settled with a large payout to the lawyers to cover the enormous costs involved in putting together a class action and some nominal settlement left over for the plaintiffs.
Re: IMS failure = small claim court?
Lawdevil & CURVN8R - Wednesday, 8 February, 2012, at 1:19:16 pm
You must have a very economical small claims court. In Fulton County, Georgia, it is $76 filing. BTW, the jurisdiciton here is up to $15,000 now.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Re: IMS failure = small claim court?
boxster99 - Wednesday, 8 February, 2012, at 1:52:55 pm
The way I see it is:

if there are thousands of small claims filed by individuals versus hundred of thousands joined in one class action suite: Porsche would prefer the later. They would rather have one big team of lawyers taking on one class action suite then having thousands of lawyers handle individual cases. Regardless, we win or not, these will give them a big %*^^ headache plus bad publicity, if you ask me. Something about the article said all manufacturers are watching this even fold out *nervously*, they know something is up to their no good. I hope all the Honda Civic owners follows this woman route. Again, IMHO, no one else.
Re: IMS failure = small claim court?
Lawdevil & CURVN8R - Wednesday, 8 February, 2012, at 3:19:40 pm
As a legal matter, almost all of the IMS claims would be quickly dismissed due to the statutes of limitations in the various states. Generally, those statutes would run 2 to 6 years depending upon the state and whether the claim is based upon warranty (contract) or tort (e.g., negligence). Thus, anything purchased new before 2006 (and probably 2008 or so) at the earliest would be barred. Since most of the IMS failures were for the years before 2007, the issue is rapidly becoming moot.
Re: IMS failure = small claim court?
danz76 - Wednesday, 8 February, 2012, at 3:24:45 pm
I am not sure I agree with those assumptions. First of all, good luck getting thousands of plaintiffs organized to file these small claims suits. Almost no one has done so yet, and this has been a known issue since 1999. Organizing people unfamiliar with the legal process to file and prosecute lawsuits is a daunting task.

Assuming that many plaintiffs do file small claim suits, the economics are likely to still be better for Porsche to defend multiple small claims than a very large class action. To defend many small claims filed by individuals, Porsche knows it can hire middle of the road lawyers at $250-$450 an hour to knock the claims out one by one on various technical issues, and since the plaintiffs in small cases would likely not hire experts, Porsche is virtually guaranteed to get every case dismissed with little to no real financial exposure.

On the other hand, if a well organized class action was filed on behalf of thousands of claimants (by definition, a class action is filed on behalf of all who are similarly situated with a loss), Porsche would have to hire its big gun lawyers at rates between $350 and $1,000 (yes, three zeroes) an hour to defend, and would incur hundreds of thousands of dollars in defense expert fees to render opinions about why there is no defect. Additionally, there is a possibility that Porsche could face significant financial exposure if a jury ruled in favor of the class, so it would be more likely to evaluate the larger case as one being worth settling.
Re: IMS failure = small claim court?
Lawdevil & CURVN8R - Wednesday, 8 February, 2012, at 7:15:26 pm
The problem with either a class action or a bunch of small calim actions is that they would be kicked out because of the statute of limtations - no need for discovery etc - just a motin of summary judgment.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Different Legal Opinion ...
paulwdenton - Thursday, 9 February, 2012, at 7:13:30 am
Lawdevil, I hate to argue with fellow counsel, but ... these cases might fail for want of proof, but not because of the statute of limitations. Assuming for the sake of argument that the IMS is a defect -- it is a hidden defect until it breaks. At least in my state, the statute of limitations does not begin to run for hidden defects until the damage was complete; i.e. upon engine failure. In some cases it doesn't even begin to run until the plaintiff knows about the existence of the defect; i.e. that the engine blew up "because" of the IMS. Therefore I just cannot agree with you about the statute of limitations.

It wouldn't be that hard for the plaintiff to get expert testimony to get a day in court, just ask Jake Raby to write a statement. Our local small claims court would allow any mechanic to testify, and they could bring in the broken IMS full of dirty oil as we have all seen pictures of. That is all that is needed in small-claims court in my state. As a corporation, Porsche would have to hire expensive counsel to appear and defend and pay for their travel costs ... but worse for them, they'd have to either bring in their own engineers to testify or write statements in their defense, and that would then make the IMS issue public knowledge. And no matter how unlikely they would be to lose, that possibility is still there and that would require a trial de novo in the next level court with its attendant expense, plus the higher you go, the more the risk of bad publicity. The cost and the bad publicity gives them a strong incentive to settle.

So, why haven't we heard of any of these cases? Let us consider ...

(a) There aren't all that many Boxsters and Caymans that have an IMS;

(b) Even fewer of them have an actual problem;

(c) Of those with an actual problem, many are settled at the dealer;

(d) Of those that don't settle at the dealer, maybe they DO file in small claims court. How the heck would we ever know? It's not like there's a national database that shows who filed against whom in small-claims court. However, common sense tells me that if someone actually filed and lost, he or she would be in here and every other Porsche forum whining about how he/she got screwed. Likewise, common sense tells me that if someone actually filed and won, he'd be in here for sure, bragging about his big victory.

Since neither alternative has occurred, this tells me that Porsche is very likely settling these cases immediately with a confidentiality clause. The confidentiality clause is a standard settlement provision in which neither party admits fault and both agree that they can't talk about it. That's why you wouldn't hear about the cases. Porsche would settle because their costs in defending could be greater than the cost of just providing a new engine, let alone the bad publicity. So why would the plaintiff agree? Well, do you want to have your car fixed or do you want to spend your time suing and appealing against a huge corporation with unlimited finances and having litigation go on for several years? Duh.
Re: Different Legal Opinion ...
MikenOH - Thursday, 9 February, 2012, at 8:19:53 am
Quote
paulwdenton
Lawdevil, I hate to argue with fellow counsel, but ... these cases might fail for want of proof, but not because of the statute of limitations.
So, why haven't we heard of any of these cases? Let us consider ...

(a) There aren't all that many Boxsters and Caymans that have an IMS;

(b) Even fewer of them have an actual problem;

(c) Of those with an actual problem, many are settled at the dealer;

(d) Of those that don't settle at the dealer, maybe they DO file in small claims court. How the heck would we ever know? It's not like there's a national database that shows who filed against whom in small-claims court. However, common sense tells me that if someone actually filed and lost, he or she would be in here and every other Porsche forum whining about how he/she got screwed. Likewise, common sense tells me that if someone actually filed and won, he'd be in here for sure, bragging about his big victory.

Duh.

IIRC,every Boxster built during the 1997-2008 MY, along with all 996/997.1 models built between 1999-2008 (with the exceptions being the turbos and GT3's) has the IMS in their M96/M97 engines. Don't know how many cars were produced in each MY and sold here in the US, but would guess minimum 10K each year making the data base of the cars built with the suspect IMS and sold in the US at least 100k. A sizable number in my book--no?

Regarding b and c--no one knows
Re: Different Legal Opinion ...
longislander1 - Tuesday, 14 February, 2012, at 8:41:45 am
I once looked at Porsche sales figures back to 1997 and calculated that there had to be over half a million cars sold with M96 engines. As far as b and c are concerned, yes, that's pure speculation and not based on fact.

I don't see why Bruce Anderson's and Jake Raby's public writings on IMS failures could not be used as expert opinion. If Porsche wants to dispute Anderson's contention that up to 20% of all cars could be affected, then the next question to the company would be "What is the correct percentage?" If Porsche declines to respond or says it is zero, well, there are scads of engine failure examples to challenge that. At some point, the company has to either confirm or deny that a defect exists. In fact, I recently saw a legal document from New Jersey in which a judge dismissed a class action suit against Porsche for a 911 engine failure. I believe the judge ruled that the car was too far out of warranty. However, within the document, Porsche said that it would only consider an out-of-warranty goodwill reimbursement if the car was bought new from an authorized dealer (which this 911 was not). That's the first and only time I've ever seen Porsche make a public pronouncement on the issue and I'm wonder if someone could submit that in small claims court as evidence of Porsche admitting the defect. However, I'm not a lawyer, so I'll bow to the experts (and not the Kool-Aid guzzlers, please), who can look at such a case objectively.

My feeling is that there's very little to lose in a small claims suit, assuming that you have the time to pull together the documented failures and expert opinions so that you can make a coherent presentation before a judge. If you're an engine failure victim and Porsche refuses to help you at all, why not give them a little trouble and inconvenience in return?
If you are going to file, you should hurry!!
Lawdevil & CURVN8R - Tuesday, 14 February, 2012, at 9:30:45 am
I doubt even the most liberal judge is going to impose liability for a 15 year old car with a long ago expired warranty. Even the newest IMS cars will reach 4 years old this year. Let us know how you make out on that!

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
20% - that's 100k examples - good luck documenting that *NM*
Boxsterra - Tuesday, 14 February, 2012, at 4:03:45 pm
Very little to lose?
Lawdevil & CURVN8R - Tuesday, 14 February, 2012, at 9:03:32 pm
I doubt that. Other than the time and $50 to $75 filing fee, how about the expense of these expert witnesses. I am sure Jake is a fine fellow but I doubt he would be anxious to fly to some distant court for free - not to mention the depositions he would likely have to give. After all, Porsche would have the right to cross-examine your expert. And of course, you would want to take a day or two off to examine their witness(es) and of course educate yourself so you could refute their expert testimony - that is even assuming you could get past the stature of limitations and other issues Porsche might introduce. I imagine most car makers have "canned briefs" available to make these arguments.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Re: Very little to lose?
longislander1 - Wednesday, 15 February, 2012, at 10:09:26 am
As I said, I defer to the legal experts. I'm not sure how you could claim any damages on a 15-year-old car. However, there are already cases where Porsche has allowed "goodwill" payments for cars that are more than four years old. But I would ask a judge to have Porsche explain its policy on goodwill payments. When do they end? 4.5 years? 6 years? When? What are the criteria for approving them? (We already know from the NJ case, for example, that the owner had to buy the car new from an authorized dealer.) I will stand corrected, but I believe I have seen reports of goodwill payments on cars that go back to the 986 years.

And I would never pay expert witnesses to come to small claims court. That's plain stupid. But there are plenty of published statements by Anderson, Raby and maybe others regarding the defect. I would package that up neatly for the judge and would include bios of each to show their expertise.

Perhaps some lawyers look at the viability of cases based on their need to turn a profit. I look at small claims as a low-cost, civilized way to return the favor to those who have caused me trouble. Forcing the other party into the time and expense of a court appearance is sometimes victory enough. If you do nothing, you are guaranteeing the outcome will be against you so I always feel it's worth a try.



Edited 1 time(s). Last edit at 02/15/2012 10:25AM by longislander1. (view changes)
Re: Very little to lose?
Lawdevil & CURVN8R - Wednesday, 15 February, 2012, at 1:01:28 pm
First, Porsche doesn't have to explain its good will policy. Its voluntary. Just because they gave it to one customer does not mean they owe it to all of their customers. Second, I doubt a busy small claims court judge would be interested in taking the time to read the various articles - even if he would admit it (which he probably should not under the rules of evidence). It is inherently unfair to Porsche to allow such "testimony" with no opportunity to cross examine the authors. In this case, Jake is undoubtedly an expert, but obviously he has a vested interest in providing "fixes" to the IMS problem - just as Porsche has a financial interest in avoiding the claim.

If vengeance is your primary goal, go for it! I have better things to do.

mike
Re: Very little to lose?
Gary in SoFL - Wednesday, 15 February, 2012, at 4:15:38 pm
Precisely, Mike....and quite logical. smileys with beer
Re: Very little to lose?
longislander1 - Wednesday, 15 February, 2012, at 5:10:39 pm
The woman who won the case against Honda might disagree with you. Her win has now become a national issue that will probably change the game for reporting of mileage figures. You might want to read this article: [jalopnik.com]. Lawdevil, it sounds like you might have approved of Honda's approach to the case, but it apparently didn't work.

I don't think you can assume anything in small claims court if you're well-prepared and have a decent case. It's sort of like the person who takes their car to the dealer, asks for a "goodwill adjustment" and is pleasantly surprised to get a free repair from the manufacturer. A different person might have gone in there and remained silent, assuming there would be no goodwill offered. The woman with the Honda could have dismissed the idea of a small claims suit, assuming she couldn't possibly win.

If you don't ask, you don't get.



Edited 2 time(s). Last edit at 02/15/2012 05:27PM by longislander1. (view changes)
Asking is one thing - suing is another.
Lawdevil & CURVN8R - Wednesday, 15 February, 2012, at 7:58:33 pm
The Honda case is pretty much an aberration - which is the reason it is news. I predict it will be reversed upon appeal. I put it in the same category as the Alabama case where a jury awarded $4,000,000 against BMW because a new car had been repainted. It was ultimately reversed.



Edited 2 time(s). Last edit at 02/15/2012 08:21PM by Lawdevil. (view changes)
Yes and no...
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 8:45:54 am
Admittedly I am not a product liability lawyer, but In Georgia at least, it depends on such issues as whether the Plaintiff has knowledge of the defect and whether there is bodily injury (as opposed to property damage). The IMS issue has been well known for many years. Ironicially, those who have been complaiining the most over the internet without having suffered an actual loss may have caused the statue to run on their claims. Some states (Georgia included) also have a longer statute of "repose" which dispenses with knowledge in a product liability case.

Even assuming the S/L does not apply, different companies have different standards for handling small claims cases. I was general counsel for a large bank and, beleive it or not, handled many small claims cases myself (Georgia requires an attorney represent corporations even in small claims cases (even if I lost, it was cheaper than hiring outside counsel - I never lost one). I would settle those where there was a "colorable" claim but would pay attorneys fees several times the amount of a claim for what I considered substantially without merit.

In any event, it appears to me that litigation (either class action or small claims) will not be terribly fruitful for plaintiffs in pursuing IMS claims. On that I think we agree.

Cheers,

mike
Re: Yes and no...
maj75 - Thursday, 9 February, 2012, at 9:50:50 am
I most states corporations are not allowed to have an attorney appear for them in small claims court. A non-lawyer representative must appear and argue for the company. I am a corporate counsel and deal with this very issue every day.

I agree that the controlling date is when the defect was discovered. A good argument would be when the IMS failed... Porsche can't argue you knew about the "defect" unless they are willing to admit there is a "defect."

There was a famous case where GM was sued in the '90s (IIRC)for not putting airbags into cars in the 70s.

I am shocked that a lawyer would suggest there there is "discovery" at the appellate stage. The appellate court is bound by the record in the original hearing/court. There is no further discovery.

Porsche would have to reveal a lot of data about their knowledge of defects in the M96 engine that they would probably not like to have widely known. Porsche's costs to comply with well drafted discovery requests regarding the D chunk failures, IMS failures etc would not be trivial. "Experts" cost a lot of money, too.

I see no reason that a Porsche owner could not prevail in Small Claims courts in most states.
Don't be "shocked" eye popping smiley
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 11:02:43 am
You obviously have not dealt with small claims type courts in the states where I practiced. In most (e.g., Georgia, North Carolina and Virginia, IIRC), an appeal from the small claims court is to a trial level court where there is full discovery and the facts can be fully litigated. So don't be shocked! I was General Counsel and also dealt with this issue often.

Also, in at least Georgia, and possibly elsewhere, an attorney is REQUIRED for a corporation in magistrates court. The Georgia Supreme Court held a few years ago that a non-lawyer would be engaged in the unauthorized practice of law if appearing in court - even Magistrate's Court. Even garnishments on corporations are required to be answered by an attorney. I haven't checked to see if this is still the case - but it was the law about a year ago.

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
...what one says, the other contradicts.

A small town that cannot support one lawyer can always support two. winking smiley

This legal debate is probably an example of why we haven't read about any legal action against Porsche prevailing. Thanks for trying to clear the fog.
You're right, Gary!
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 11:33:32 am
So as not to bore everyone, I'll take this debate off-line if it continues any further.

Cheers!

mike

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Why off line?
mikefocke, '01S Sanford, NC - Thursday, 9 February, 2012, at 11:54:23 am
some of us are learning from the exchange.

I know of someone who tried to interest a lawyer (who had been the lead counsel in a successful class action lawsuit against an auto company) in taking up the IMS issue and he offered to put the lawyer in touch with potential lead plaintiffs and witnesses. There was no interest. When I heard this, I figured the lawyer must know something my friend didn't.
Re: Why off line?
Gary in SoFL - Thursday, 9 February, 2012, at 12:41:51 pm
Lawyers have great sniffers for BS, especially when it comes to contingency class action suits. The lawyer, unlike some of us, knew it was a waste of time, IMO.

If it wasn't for lawyers, we wouldn't need them. cool smiley
Re: Why off line?
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 12:50:55 pm
OK - I'll bite. If I were a class action plaintiff's attorney (God forbid), I would not be terribly interested in this. First of all, it would be incredibly expensive to pursue with no guaranty or even likelihood for success. Someone would have to finance the litigation and in my mind very few would or could do that. For example, a phalanx of experts would be required - all of whom would not be doing this gratis. Next, since Porsche is a German company, much of the discovery would have to be done in Germany. I doubt seriously Porsche would voluntarily pay for their engineering staff to travel to the U.S. for extended depositions. In addition, it is likely German counsel would have to be hired and they would not be working for free either. Finally, just reviewing the thousands or millions of pages of documents would be a monumental job requiring huge amounts of time by attorneys and experts. I suspect that a thorough prosecution of the case would certainly cost over $1,000,000 - and maybe much more. Class action litigationis not cheap! I recall providing bank loans to a class-action law firm which was representing a large number of women in the breast implant litigation. The cost almost bankrupted the law firm.

Assuming 200,000 M96 engines (I pulled this out of the air), how many have had failures beyond the warranty period? Of those, how many could you contact years after the occurrence? How many of those would be original owners? (Purchasers of used M96s would have even more trouble prevailing.) How many engine failures were IMS related and how would you prove that? How about proving that the cars were adequately maintained? Difficult in a class action. Some of the cars are almost 15 years old - I have doubt that a court would force a manufacturer to guarantee cars that old? This is without reference to the almost certain disclaimers Porsche made in the warranty materials when the car was purchased.

Regardless of the merit of any such claim, it does not seem to me that many attorneys wold have much interest in pursuing such a monumental undertaking. This is not a sexy case like the Ford Pintos with cars bursting into flames. There is not even much PR appeal in representing a bunch of folks who have the disposable income to purchase these very expensive play-things.

mike
Re: Why off line?
Gary in SoFL - Thursday, 9 February, 2012, at 1:18:27 pm
Re: Why off line?
paulwdenton - Thursday, 9 February, 2012, at 2:48:20 pm
Agreed, not sufficiently profitable for some lawyer to take the case as a class action. I also agree with both Lawdevil and maj75 about discovery. I think it's a matter of semantics. As maj75 points out, discovery is clearly not available in traditional appellate courts; but as Lawdevil points out, an appeal from small-claims court is simply to the next higher level trial court where discovery IS allowed. Overall, I still think these suits would be winnable at the small-claims level and that we aren't seeing any small-claims suits (win or lose) because Porsche simply squelches them at the small-claims level with a confidential settlement.
Re: Different Legal Opinion ...
danz76 - Thursday, 9 February, 2012, at 3:46:44 pm
Permit me to re-focus us back to the plaintiff's burden of proof.
Why would a mechanic's testimony be sufficient to show that there is a design defect? All it shows is that one car's IMS failed. A mechanic's testimony to that effect would not demonstrate why it failed, how it failed, whether there was a design defect or simply a mechanical failure from wear, stress or improper use.
Re: Different Legal Opinion ...
paulwdenton - Thursday, 9 February, 2012, at 5:03:13 pm
It is a common misconception that an expert witness must have a professional degree. All that is required is that he/she be qualified as an expert in the topic about which he's testifying. A properly trained and experienced mechanic could be qualified as an expert on bearing failure. The mechanic brings the failed bearing into court, testifies about his qualifications, and how he's worked on bearings for 30 years and bearings don't fail in normal use when properly lubricated. Maintenance records and electronic RPM records are introduced to establish proper maintenance and lack of abuse. The mechanic then holds up the bearing, which is full of dirty oil, and says, "Bearings are not consumable items; in my professional experience a bearing normally lasts for a lifetime. Here is a new Porsche IMS bearing. As you can see, it is lubricated with grease and are sealed to keep oil out. Here is the bearing I removed from the destroyed engine in Plaintiff's car. As you can see, this seal has failed and allowed the bearing to become filled with dirty oil As everyone knows, dirty oil causes greatly increased wear that eventually leads to failure. In my professional opinion, the seal design on this bearing should not have failed in the normal use and proper maintenance I have determined that this car received. I therefore conclude that the seal is inadequate and led to failure." I see no reason why this scenario could not play out. It would be stronger yet if someone like Jake Raby wrote a statement to the court. Jake has studied these bearings in intensive detail and is clearly qualified as an expert.
Re: Different Legal Opinion ...
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 6:07:59 pm
Just to be the Devil;s Advocate, if it were that easy and according to that standard, virtually any failure (except such things as brakes) beyond 50,000 and/or 4 years would create a cause of action - because presumably most components of a car are designed to last longer than the initial warranty period. E.G., "In my professional opinion, the... design on this [radio knob, a/c vent, transmission - take your choice]] should not have failed in the normal use and proper maintenance I have determined that this car received. I therefore conclude that the [radio knob etc] is inadequate and led to failure." According to this logic, seems to me, absent abuse or lack of maintenance, any non-consumable item failing would allow a successful lawsuit. Pedro could get rich just testifying in court for every car failure.
Just asking?

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Here's the expert witness we're looking for:
Laz - Thursday, 9 February, 2012, at 7:42:15 pm

Uh... did you say 'yutes'? *NM*
Pedro (Weston, FL) - Friday, 10 February, 2012, at 8:00:19 am


Pedro Bonilla 1998 Boxster 986 - 254,000+ miles: http://www.PedrosGarage.com
PCA National Club Racing Scrutineer - PCA HPDE Instructor

Racecar spelled backwards is Racecar
"Racing is life. Anything before or after is just waiting" ... Steve McQueen as Michael Delaney in "LeMans"
"If you wait, all that happens is that you get older"... Mario Andretti
"Being second is to be the first of the ones who lose" ... Ayrton Senna
Re: Here's the expert witness we're looking for:
MikenOH - Friday, 10 February, 2012, at 9:36:45 am
And a very persuasive witness at that; Fred Gwynne looks enthralled.

If these cases were ever to go to trial, as a plaintiff, I'd want Jake and his bearing expert to testify on the engineering side of the issue and as a defendant, I'd have some technical expert from Porsche (and the the bearing maker) along with video deps from Marc and others that have turned 100K + miles with this engine, doing regular maintenance and in some cases track events, with no kabooms.

I could see a judge throwing up his hands on this one-- information to support both sides and no clear statistics to deal with.
demonstrating that she had all sorts of arcane knowledge, thus giving her convincing credibility. She even got around the prosecutor's trick question.



Edited 1 time(s). Last edit at 02/10/2012 10:44AM by Laz. (view changes)
Coming up on 50, but I'm convinced cool smiley
Gary in SoFL - Friday, 10 February, 2012, at 11:13:08 am

She's timeless. My dreamboat for sure. *NM*
Laz - Friday, 10 February, 2012, at 11:15:51 am
Re: Different Legal Opinion ...
paulwdenton - Thursday, 9 February, 2012, at 8:05:10 pm
In my example, my hypothetical expert witness DID identify the cause of the failure (seal failure), ruled out defective maintenance and abuse, and distinguished this type of failure from the bearings in other cars. If your expert can identify the cause of failure of the radio knob, a/c vent, and transmission, AND rule out defective maintenance and abuse, AND distinguish these failures from other cars, then yes, I do believe he could so testify. And it would be up to the judge or jury to decide if they believe him or not. Dunno how often you'd see a lawsuit over a radio knob or a/c vent, but the transmission would actually be a very good example. Apart from the wear parts and keeping adequate, clean transmission fluid, there is indeed no reason for a transmission to self-destruct, for example, at 50K miles (as opposed to simple wear and tear causing it to stop working). A water pump might be a better example for you. I don't believe my hypothetical mechanic would be able to testify that a water pump shouldn't fail at 60K miles, since water pumps on all cars seem to start failing after maybe 60K miles AFAIK. And a lot depends on wear and tear. My expert witness mechanic will not be testifying the same way for an IMS with 100K miles because it would be much more difficult to exclude wear and tear as a cause ... and because even the best seals do have a discrete lifetime. I am talking here about lightly-used and well-maintained parts that do not normally just FAIL for no apparent reason during their **expected** lifespan based on common experience.
Re: Different Legal Opinion ...
Lawdevil & CURVN8R - Thursday, 9 February, 2012, at 11:09:39 pm
But something failing (transmission, for example) for no apparent reason does not mean that the manufacturer should be liable. The warranty was for 50,000 miles, not 60,000. I would guess that at some point or another, there would be an example somewhere of virtually every moving part on a car having failed. The fact is that a failure, even an unusually premature failure, does not in and of itself, give rise to liability. The manufacturer warranted the car for a specific number of years and miles and no more. When the car is purchased, the customer agreed to that. Like it or not, except for statutorily mandated liability or voluntarily assumed liability, the manufacturer is not perpetually responsible for mechanical failures occurring years after the sale.

One other issue that occurs to me is that after 6 or 7 years, many of these cars have probably changed hands. The second owner quite often purchased the car "as is". Should such an owner, despite the terms of his purchase, be able to bring an action against the manufacturer - and, if so, under what theory?

mike

Lawdevil & the new CURVN8R, 2013 Boxster S - Agate Grey, Cashiers, NC & Atlanta
Re: Different Legal Opinion ...
paulwdenton - Friday, 10 February, 2012, at 6:21:37 am
I would agree if the implied warranty of merchantability was adequately disclaimed and if there was no evidence of negligent design. I haven't looked up the laws on implied warranty lately, but what I recall is that the waiver has to be clear and unambiguous and not just buried in the small print somewhere -- and I don't recall signing any such waiver when I bought my Porsche. Maybe I did, but I don't recall it. As for negligence, of course parts can fail for reasons having nothing to do with negligence, but if all other causes of failure are ruled out, what is left? Getting back to the IMS issue ... it would be one thing if the mechanic discovered that there was a secret hairline crack in the bearing that was undetectable except with an x-ray ... it is quite another if he discovered that the seal failed because it was sitting in hot oil for 40,000 miles, that seals and hot oil don't mix well, and that he has found the same problem in dozens of Porsche Boxsters but not in any other cars. Another problem with this discussion is that the answer might well vary from state to state; i.e., we might both be right.

In the end, the only one who can answer these questions is a judge. The reason we are having an "academic" discussion -- instead of discussing why the judge ruled that Joe won his case or why Frank lost his case -- is most likely because we don't know of any actual rulings on it, yea or nay. It strains credibility to believe that nobody in this litigious country ever tried to sue over this issue even one time and that nobody ever whined about his judicial loss or bragged about his win. Sorry, I think Porsche is settling these with a confidentiality clause, which explains everything. Can I prove it? Nope, no more than either of us can prove our legal theories in this discussion.
Re: Different Legal Opinion ...
longislander1 - Saturday, 18 February, 2012, at 3:54:43 pm
The only way to find out whether any of you lawyers are right is for an IMS victim to file a small claims suit and see what happens.

All I can say is that it's cheap and simple to file a small claims action in my state. I think that was the idea behind the original post, bit it appears the discussion may have gone a bit overboard. (It's a good think Pedro doesn't have to pay for all this legal advice by the hour. winking smiley) I've had to file suits twice (and have won both times), once against a very large Manhattan commercial real estate firm that was dragging its feet in returning a security deposit for office space we had rented. The poor guy they sent down to the court clearly didn't want to be there and when an arbitrator came in, he whipped out his checkbook and paid what he owed, plus court costs. We never even went before a judge and we were out of there in no time. All we wanted to do was get our money from the deadbeats and we succeeded by making life a little difficult for them. That's what it's about, unlike the ridiculous poster who claimed it was "vengeance." It's nothing of the sort.



Edited 1 time(s). Last edit at 02/18/2012 03:58PM by longislander1. (view changes)
Ridiculous? confused smiley
Lawdevil & CURVN8R - Saturday, 18 February, 2012, at 7:38:18 pm
The statement I was responding to was: "I look at small claims as a low-cost, civilized way to return the favor to those who have caused me trouble. Forcing the other party into the time and expense of a court appearance is sometimes victory enough. " Sounds to me like the poster was looking for revenge, not compensation.

Sorry you don't appreciate the legal discussion - I offered to take it off line but was encouraged to continue because several people expressed in interest in continuing it. All I have done is to express my opinion that a small claims court action would probably ultimately be futile. That is not to say it is impossible to prevail - but IMO, unlikely. Even a victory there would likely be reversed upon repeal. That's my opinion - take it or leave it. It is worth what you are paying for it.

BTW, I have been in small claims court many, many times and have always prevailed. In cases where I thought my client was clearly wrong, I did as you suggested and had my client write a check at arbitration. Luckily, that was pretty rare. In this case, I don't think Porsche is legally wrong - although there are good business arguments that they ought to pay some of the claims for "good will" reasons.

I think we have exhausted this subject. Good luck with your claims.

mike
I'm ready ...
Pedro (Weston, FL) - Friday, 10 February, 2012, at 8:02:40 am
... to get rich as an expert witness.
My calendar is open.
Call to book me!
Happy Boxstering,
Pedrp

Pedro Bonilla 1998 Boxster 986 - 254,000+ miles: http://www.PedrosGarage.com
PCA National Club Racing Scrutineer - PCA HPDE Instructor

Racecar spelled backwards is Racecar
"Racing is life. Anything before or after is just waiting" ... Steve McQueen as Michael Delaney in "LeMans"
"If you wait, all that happens is that you get older"... Mario Andretti
"Being second is to be the first of the ones who lose" ... Ayrton Senna
Watch out for that open calendar thing:
Laz - Friday, 10 February, 2012, at 11:12:51 am
Your beard might get scraggly, among other things:



The world ...
Pedro (Weston, FL) - Wednesday, 8 February, 2012, at 3:19:04 pm
... was never flat.
We just thought it was winking smiley
Happy Boxstering,
Pedro

Pedro Bonilla 1998 Boxster 986 - 254,000+ miles: http://www.PedrosGarage.com
PCA National Club Racing Scrutineer - PCA HPDE Instructor

Racecar spelled backwards is Racecar
"Racing is life. Anything before or after is just waiting" ... Steve McQueen as Michael Delaney in "LeMans"
"If you wait, all that happens is that you get older"... Mario Andretti
"Being second is to be the first of the ones who lose" ... Ayrton Senna
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