But let's not forget that...

Has any one ever taken the IMS issue to small claims court?

Since (i) meaningful discuovery is impractical, (ii) you would be up against very experienced defense lawyers, and (iii) small claims judges are probably very disinclined to make new law - particularly in the face of a written warranty limited to a certain number of years or miles.
mike

Every so often you'll see some saber rattling on various Porsche forums looking for people to create a class action suit agains Porsche due to engine failures (renntech, rennlist, 914forum and even think I recall once on PPB. Don't believe any of them have ever got off the ground or garnered much support from board participants.

It would be difficult to prove that Porsche knowingly built a defective product. i'd imagine you'd need to get independent analysis that the IMS material/design was defective. Porsche would counter with their experts. Many of the engines are returned to Porsche for teardown, so the universe of available material is fairly minimal and scattered into the winds to make an insightful analysis. How many people with engine failures have kept the key components to be able to come up with a representative sample to analyze? Also, one person going it alone would not be an easy chore. All the time and money spent would be put to better use by stuffing a new and bigger engine into your Boxster. Certainly get more enjoyment out of you time and money that way.

Good luck. Let us know if you make any progress in your pursuit. As a former Prez was known to say, I feel your pain. Luckily, my engine blew under warranty.

Actually your chances might not be that bad. Of course, it would be extremely difficult in terms of what entity to sue, how to serve summons, a legal theory of the case, and lining up expert witnesses who would actually be willing to testify. I'm thinking that an engine that prematurely blows up may indicate negligent manufacture or design under a theory of res ipsa loquitur (thing speaks for itself), or violation of implied warranty of merchantability (if not properly disclaimed) against a dealer or Porsche. However, I'm thinking those issues aren't really what's important here. I am too cynical to think that "the law" is really that important here. I'm thinking of the fact that any individual can represent himself in Small Claims Court, whereas Porsche is a corporation and must hire expensive attorneys to defend itself. Porsche isn't doing all this "goodwill" out of the goodness of its heart. At a couple of hundred dollars an hour, the cost of defending a lawsuit would rapidly cost Porsche a lot more than the cost of just splitting the cost of a new engine for the customer, not to mention the bad press. Sure, they can file briefs, do discovery, interrogatories, file or defend appeals, etc. until the cows come home and probably wipe the floor with the plaintiff, but all the while their lawyers' meters are running at a couple of hundred dollars an hour. A dogged plaintiff could easily make them run up more legal fees than it would cost them to just pay the claim. Plus, their lawyers won't be very happy about defending a small-claims case and will be eager to get it settled and work on something more "important." I suspect there may be people out there already who have done this and gotten a favorable result. Any such result undoubtedly would have ended with a confidentiality agreement, which would explain why we haven't heard of any of these cases.

I have appeared many times in small claims court on behalf of banks and corporations - and have never lost (knock on wood); of course, I always settle any cases where I think we might lose. The costs are not really that high - rarely is much, if any, discovery necessary for the defendant - in this case - just an appearance with a copy of the warranty would probably be adequate. Most of the time, these will be assigned to the most junior attorneys or to in-house counsel if available. For the defendant corporation, there is relatively little down-side since, at least in this jurisdiction, an appeal to the higher court is quite easy in the case of a loss (with a retrial of all issues - i.e., a second bite of the apple). If the defendant loses, it can always either settle at that point or bring out the big guns to try it before a full-blown trial court.

I have no idea what Porsche's policy is on such litigation - but my clients rarely settle such cases when they feel the law favors their positions unless they feel there is a concrete likelihood they will lose.

One last thought, filing the claim might be worthwhile (filing costs are generally less than $100) since in many cases there is a mandatory arbitration prior to actual trial. At that point, you might be able to get a little bit more "good will". However, I am not optimistic about your chances.

mike

I have represented banks before, and with those you are right, but that's because there really is no issue. With "corporations" it's difficult to generalize, usually those are cut and dried, too. You know as well as I do that a lot of small claims cases are frivolous and the plaintiff isn't very keen on the idea in the first place, and those are certainly going to go away quickly. I'm just saying that these cases aren't that cut-and-dried. A very determined plaintiff will end up winning if he insists on going through every step of the process and introducing all the maintenance records, calling a mechanic as a witness, getting affidavits, e.g., from Jake Raby, and bringing in dozens of reports of IMS failures from here and other sources (no evidence rules in small-claims). I'm talking about res ipsa loquitur here -- since engines don't routinely blow up in the absence of negligence, I think that would be enough to make the prima facie case. At that point it would be on Porsche to rebut the case, and how are they going to do that without calling their own experts? And the bigger this gets, the more publicity, too ... You are absolutely right about the complete retrial on appeal, but there are the attorneys fees building up all over again. At some point it becomes too costly to defend. I'm telling you, the right kind of plaintiff (i.e. retiree with nothing but time on his hands) and good maintenance records could make Porsche really sweat.
Sincerely,
f/k/a Allegator

If the plaintiff pulled together all of Porsche's lavish pronouncements in recent years about engineering excellence and quality, and then juxtaposed that against the large number of reported incidents posted on various forums, could he have a legitimate argument for fraud? Also, would his argument be bolstered if he was able to document incidents before and after the 2005 model year (including both pre- and post-2005 cars) to show that Porsche knew about the defect and did nothing to remedy it during the '05 model changeover?

But Posche has a history of trying to remedy the cause...witness 3 revisions of the IMS before finally giving up.

True, but if we believe the reported incidents, Porsche continued to sell engines with the defective design while it was allegedly working on a fix. My '05, for example, has the same faulty technology as the OP's car, although I have not (yet) experienced an engine failure. Porsche knew this and was still happy to take my money. I recall Subaru having a similar problem with its turbocharged engines in '09. Its response was to: 1) admit the problem publicly, 2) shut down production temporarily, and 3) pull back all affected cars for a fix, up to and including an engine replacement. From what I've read, no one suffered a financial loss. Of course, those cars were still under warranty and the duration of the problem was much shorter. If you look at the sales figures, Porsche produced more than half a million M96 engines over a decade or so.

I'm talking about negligence, not warranty and not fraud. As for warranty, the express warranty is expired or we wouldn't be talking about it. There is an implied warranty of merchantability and an implied warranty of fitness for a particular purpose, but those are routinely disclaimed at the time of purchase, and there simply is no evidence of fraud, period. However, I really think that given the proper conditions, a reasonably good case could be proven of negligence. Negligence doesn't require privity, and res ipsa loquitur ("the thing speaks for itself") can be used to establish a prima facie case of negligence that Porsche would then have to rebut. Their history of tinkering with the IMS tends, IMHO, to help prove negligence; i.e., if it was a good design, why did they need to keep changing it? Also, there is no "discovery" in small claims court -- but there is if the small claims case were to be appealed. Using court discovery procedures, the plaintiff could obtain Porsche's records showing exactly how many IMS failures these cars have experienced. Come to think about it, keeping that information secret is yet another reason I think Porsche would settle any such case. The more litigation we talk about here, the more expensive it would be for them NOT to settle.

Remember - we are talking about small claims court with little or no discovery. Without regard to possible deal ending issues such as statute of limitations, Proving negligence in such a case without experts and extensive discovery is almost impossible. If it goes to a real trial court, then the Plaintiff has to talk some attorney into investing a lot of time and money into pursuing it. Not impossible - but I would think that it would have already happened if it was going to happen. Bringing such a case to successful conclusion for the plaintiff could take years. Unless a class action could be pursued, not many attorneys would be willing to pursue such a case for a $15,000 to $20,000 judgment - and I doubt any plaintiff would want to pay an hourly rate to pursue it.

mike

Maybe - but I think this is fairly clear cut from a legal viewpoint. I can assume that when the car was purchased some document was signed that said the only warranties were the specific warranties given at that time in writing. In this case, he bought the car from a Dodge dealer - thus no warranty from Porsche and no privity. Porsche made no misrepresentations to him and I doubt that any small claims court is going to find in favor of the plaintiff in such a case. There may be a claim against the Dodge dealer - IF the car was not sold "as-is" or only with limited dealer warranties. In such a case, I think Porsche would fight it in order NOT to establish a precedent that if you make yourself a big enough pain, you might get some relief from Porsche.
mike

Your wrong, the original warranty still is in efect regardless of where or who sold the car.

It is true engines don't routinely blow up at less than 50,000 miles - but it does happen. If a court were to apply that doctrine, it would in effect be saying that there was negligence in every case that any product failed earlier than its expected life. In this case, there have certainly been some failures - but the vast majority of engines have lasted far longer. No manufacturer can claim that its products never fail early. I just feel that the issues are far too complex to be resolved in any small claims court.

Thanks to the lawyers for some very interesting and informative observations.

yeah, I know, that's kinda scary, in and of itself.

Back when synthetic oil was relatively new on the consumer front, and car owners were replacing dino oil with synthetic, there were many reports of seals leaking as a consequence. The consensus, if there was one, was dino oil somehow caused the seals to swell a bit, or conversely, the synthetic oil reduced the amount of seal 'swelling', leading to leaking seals.

The IMS failures appear to result from failed bearing seals, which allows the grease inside the bearing to become diluted and leak out, but because the seal is still there (more or less), engine oil can't get at the bearing sufficiently to properly lubricate it. And soon, the bearing, and the engine, are toast.

Is it possible that, if we were to use a high-grade dino oil, and change it frequently (it apparently degrades more quickly that a good synthetic), the IMS bearing seals might not fail (or at least, not so soon) ?

have happened, is synthetic oil may have gotten past a bad seal or two because of its more viscous properties. If this is true, then systhetic oil may be better in getting past the failing IMS seal thus better lubricating the bearings than dyno oil would & slightly prolonging the eventual bearing failure.

JB/SE SoDak
1997 986 - Wolfi
Yankton, SD

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Synthetic oils can cause seal leaks due to their inherently lower surface tension and surface wetting properties. Combine the lower surface tension with often ridiculously low oil viscosities (0W-anything) and you have a very mobile fluid that will find nearly any leak point........

“Anything really new is invented only in one’s youth. Later, one becomes more experienced, more famous – and more stupid.” - Albert Einstein



Edited 1 time(s). Last edit at 01/04/2011 03:36PM by JFP in PA. (view changes)

I was hoping you'd offer your thoughts, JFP.

If indeed one of the problems with the IMS is grease in the IMS bearing being diluted and washed out by engine oil, and if synthetic oil is more likely to find its way past seals, then, in this context only, might dino oil be a better choice?

My sense is that a good synthetic will protect metal parts from wear better than a good dino oil, but I can't help but wonder if in the interests of possibly extending IMS bearing life, one might be better off using dino oil and change it frequently.

"Dino" oils are not, in fact, better lubricants than full synthetics, which is why synthetics cost more, and are the preferred oil in high performance applications. The problem with the IMS bearing is that when the seals fail and the high pressure grease gets washed out, there is no real way for the engine to get a constant feed of oil to it under pressure (the IMS shaft is rotating and the bearing receives only "splash" lubrication), resulting in very minimal lubrication when compared to the original grease, and when this starts to happen, the lower surface tension of the synthetics would actually be better than the “dino”. When the OEM unit starts to wash out, it also is not fully open to even the splash lubrication, making matters even worse, and causing the unit to really heat up. I think everyone overlooks the fact that heat transfer is a very critical function of oils, and synthetics are better at it than "dino" oils. Unfortunately, in the case of the OEM IMS bearing, the minimal splash lubrication when the grease washes out is not really sufficient to cool and lubricate the assembly, and because the components were not designed to run as hot as it becomes without the grease, galling sets in and the unit fails. With the LN unit, both seals are gone, and because the unit has way different materials of construction, the splash lubrication is more than sufficient to keep it alive.

I would not really even consider going to a non synthetic in these engines, their survival is already very dependant upon the characteristics of the synthetics.....

“Anything really new is invented only in one’s youth. Later, one becomes more experienced, more famous – and more stupid.” - Albert Einstein



Edited 2 time(s). Last edit at 01/04/2011 07:03PM by JFP in PA. (view changes)

I may have done a poor job expressing myself. I agree that synthetic oils are better lubricants - I was wondering if there might have been a down-side - that they might accelerate the loss of grease from the IMS bearing. Apparently not.

I'll continue to use Syntec 5W-40, change it and the filter regularly, and drive the car as often as I can, all the while wearing a permagrin.

The synthetics will wash the grease out faster, but as the oil only gets into the bearing when the seal starts to fail, and the conventional oils will also do it, just at a somewhat slower rate. Unfortunately, there is no way for you to know when this has begun, so using conventional oil while waiting is going to take its toll on your engine in other ways. Changing the oil, conventional or synthetic, more frequently introduces fresh detergent additives into the mix more often, which will also speed up the grease wash out. But then once the grease is gone, the synthetic would protect the bearing better and longer than a conventional oil. You end up between a rock and a hard place no matter which way you go.

But once the seal is gone, the IMS is going to die, the rest is just a matter of when…………

“Anything really new is invented only in one’s youth. Later, one becomes more experienced, more famous – and more stupid.” - Albert Einstein

Why Porsche does what it does is a mystery. Some cases yes and some no. My case was yes with some costs involved, about 3 grand.

I now live life without them or their cars.

They are an inigma wrapped in a mystery surrounded by intrigue, but that's just my take.

... the inside of the IMS does not have fresh, free-flowing oil that an lubricate adequately.
Whatever amount seeps in is stagnant and quickly degrades by the heat cycles.
The smell is horrible.
I'm sure that Porsche had this in mind when they decided to seal the bearing with what they thought would be lubrication for life.
In many people's cases life is very short, in my case life lasted 200,000 miles.
After I installed the LNE IMS bearing I have wondered how long this one will last given the lack of proper lubrication, even though it's made with much better materials (which weren't available when the car was manufactured).
Happy Boxstering,
Pedro

Pedro Bonilla
1998 Boxster 986 - 311,000+ miles: [www.PedrosGarage.com]
PCA National Club Racing Scrutineer - PCA National HPDE Instructor - PCA Technical Committee (Boxster/Cayman)

---

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How's the Syntec working out compared to the M1? Any noticeable differences?

If you are referring to how does it compare with a failing IMS bearing, as I mentioned earlier, once the seal is going, no oil is going to prevent the inevitable.

“Anything really new is invented only in one’s youth. Later, one becomes more experienced, more famous – and more stupid.” - Albert Einstein

I was thinking about quieting mechanical noises and getting rid of the regular smokey puffs at start up, that I've had with M1 0w-40.

In reply to your inquiry, Mike, I've been using Syntec 5W-40 in my 'new' engine pretty well from the get-go. ( I used conventional oil as a break-in oil for the first 500 miles or so). So, I don't have any Mobile 1 v. Syntec experience with THIS engine. The improvements (noted below) could as easily be attributable to the 'new' engine as to Syntec.

The occasional big clouds of smoke on start-up are almost a thing of the past. I say 'almost' because it's happened once or twice, but far less than it did previously. It's really not an issue any more.

Similarly, the occasional valve tapping noise with the previous engine is now a very rare event.

It's probably safe to say that Syntec seems to be doing its job. Where I live, the cost of M1 0w40 and Syntec 5W40 are virtually the same, so the fact that I continue to use Syntec tells me that I'm happy with it. I do my own oil changes and document them photographically. Worth it's weight in gold when the car was under warranty, and who knows, no harm in continuing the practice.

R

Thanks Roger; I'll be moving to Syntec in the spring.

Syntec, particularly the 10W-40, is very good at eliminating start up noise due to its inherently superior film strength when compared to M1 0W-40. Customers that have had issues with cold start noise on M1 consistently say that the Castrol has stopped the problem. Unfortunately, the occasional puff of smoke at start up is a common event on flat six design engines, so I cannot tell you that it helps there. If smoking on start up is a regular problem, I would be looking at the AoS, but an occasional puff is nothing to be concerned about, but more “part of the charm of owning a Porsche”.

“Anything really new is invented only in one’s youth. Later, one becomes more experienced, more famous – and more stupid.” - Albert Einstein

No seal is perfect. If it was, the bearing wouldn't turn. I've been there in my 35 years as a bearing engineer. The IMS is not a good application for a ball gearing. Even if the seal were perfect, when the oil in the grease is used up, the bearing will fail. (Grease is just a small amount of oil with a thickener to hold it in place). Clean oil is required to lubricate and cool the bearing for long life.

Ed B

If you feel you've been screwed by Porsche, you need to go to the news media and make noise. Small claims court is simply an annoyance for a large company in denial over a manufacturing defect. PM me if you want some pointers on this.

Well I wasn't actually trying to prove the defective bearing as the subject......more so to get the same results that others got from Porsche when the bearings failed out of warranty. For the past year and a half I have been collecting stories from dozens of people who had their bearings fail out of warranty and received new engines at no charge. Oddly not one car north of the border. Why not me? I have records proving my car had the recommended oil changes just like everyone else did. It seems that my only downfall was that I am a Canadian that bought an American car that was purchased at a Dodge dealership and not at Porsche dealership.....(although all servicing was done at a Porsche dealership). The chain of purchase seems to have disqualified me from any chance to get my car fixed by them on either side of the border. My car has 42,000 km ....05 S and was only 3 months out of warranty. Some of the cars that Porsche fixed had much more mileage and one instance was a 1999. So can anyone explain the preferential treatment? Maybe a judge will see this as discriminatory and unfair treatment and rule for the plaintiff. What's good for one should apply to all. We can never prove or get them to admit to an engine failure due to inferior parts, but we can argue for fair treatment and demand equal goodwill. After all at the end of the day all we want to do is enjoy the cars that we love to drive.

You didn't buy the car new from a dealer.

You didn't buy a car that came through the Canadian licensed distributor.

You didn't have records showing you always had service at a dealership.

You hadn't purchased several Porsches from authorized dealerships.

Your car wasn't just out of warranty.

All these elements seem to come into play when special consideration is given in the case of engine failures.

I do have records and the car was always serviced at an authorized dealer. The engine failure was three months after the warranty date. Who cares where the car came from and who sold it...........it's still a Porsche.

I wouldn't let anyone discourage you from taking action. An engine failure at 42,000 km is not normal, no matter what the Kool-Aid slurpers will tell you. And it's downright dangerous if it happens to you on a crowded superhighway. Toyota owners were wise enough to rise up and demand action when the accelerator issue came up. It drew nationwide media attention and the company is still reeling from its inaction, as evidenced by its lower sales vs. competitors. If you let this go, Porsche wins. It only ensures that when the next problem arises, customers will again be treated with indifference, if not downright contempt. The stuff about authorized dealer this-and-that is essentially Porsche corporate BS to evade responsibility for an inherent manufacturing defect. Porsche has done an impressive job of keeping a lid on the problem and, surprisingly, they've gotten a lot of help from their own customers . . . even from a lot of victims.

The fact that you did not get the same treatment as others is probably not going to get you very far. There is no rule that a manufacturer has to be consistent in handing out its "good will adjustments." Apparently, Porsche did not have much "good will" for you.

...it's the same amount of "good will" he displayed towards Porsche by not buying a Canadian Porsche but more importantly by not buying from ANY Porsche dealer. I suppose much of the "good will" momentum starts [or doesn't] based on influence from local dealer (and/or if an authorized dealer sold the car to begin with...). Same thing happens day after day after day in consumer electronics, furniture, handbags, paint, etc., etc., etc.

Yes, their product should NOT have these issues. But they do. Every product has at least a weak point or two; that's just life. Unfortunately, failure with some can be catastrophic (literally or monetarily) while others are not. This one is very expensive and it's the sticker shock that has his shorts in a knot like it would anyone of us. He took the risk and now he's gotta lay in the bed he made.

Indeed, the customer is always right. Any brand should strive to create as many positive experiences for a customer in order to earn their repeat business. However, the same works in reverse. If a customer doesn't support your supply chain other than when it's convenient for them, well then, there's not much urgency in supporting them back either. It'll take quite the number of oil changes at the dealer to offset the profit no Porsche dealer realized in the sale of this car...

Thanks for the positive words.

I know you're Canadian, but since you bought a car for sale in America, you might also try filing a safety complaint with the U.S. NHTSA Office of Defects Investigation. If all IMS failure victims would do the same (instead of pussyfooting around the Porsche service department, begging for some financial assistance), there would be a better chance of action against the manufacturer. Here's a link: [www-odi.nhtsa.dot.gov]. It's free and it certainly can't hurt. If you've gathered examples of past incidents, include all of them in your complaint. You may recall that there was one victim who, at around 6,000 miles, had his car crap out in the fast lane of a superhighway. As I remember, he barely got it to the side of the road and the cops even damaged his bumper when they pushed him out of traffic. If that's not a safety issue, I don't know what is.

Here are some more positive words: you don't owe Porsche anything. You bought a Porsche legitimately in the used car market and I assume you paid market price for it. I also assume that one reason you bought this brand was because of the manufacturer's lavish pronouncements about engineering excellence. That's what you expected to get when you saw the badge on the hood. Instead, what you got was an engine that is a piece of junk and now all you've got left for your investment is a salvage vehicle. Even worse, you got it from a manufacturer that knew about the defect in the 1997-2004 models and then had the nerve to continue to sell the faulty technology in the 2005 changeover (so that people like me could unwittingly plunk down 60 large to assume the same level of risk that you have). The only thing you may have done wrong was to buy the car without checking the various forums for the growing number of IMS failures that were being reported. That kind of information would have allowed you to choose a more reliable brand from a manufacturer that actually stands behind its products.

Thanks for the info........I did file with them last year....... also wrote letters to Porsche head office in Germany, USA and Canada.Was also on a local CTV station to plead my situation on consumer reports slot. Porsche on all three counts passed the buck one to the other.