Products liability – Lemon law – Expert evidence

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Where a defendant auto manufacturer was awarded summary judgment under the Massachusetts lemon law, the judgment must be vacated because expert testimony is not necessary to prove that the plaintiff’s vehicle was defective or had a malfunction when sold.

“This case requires us to decide whether a plaintiff suing under the Massachusetts Lemon Law, G.L.c. 90, section7N 1/2, must introduce expert testimony to prove that the subject vehicle did not comply with the applicable express or implied warranties. A judge of the Superior Court answered this question in the affirmative and on this basis granted summary judgment in favor of defendant Ford Motor Company (Ford). We disagree and therefore, for the reasons set out infra, vacate the judgment entered in favor of all the defendants …

“The facts alleged describe several covered nonconformities reported within the term of protection, specifically, not starting, stalling, and losing power. …

“The defendants argue first, as the judge concluded, that expert testimony was required to demonstrate these nonconformities. …

“Whether a cause of action can be proven without expert testimony depends on the elements of the cause of action. As relevant here, in order to show the Lemon Law applicable, [plaintiff Thomas R.] Gliottone [Jr.] was required to show a nonconformity, i.e., a ‘specific or generic defect or malfunction, or any concurrent combination of such defects or malfunctions that substantially impairs the use, market value or safety of a motor vehicle.’ G.L.c. 90, section7N 1/2(1).

“Contrary to Ford’s argument, because it does not matter what is causing the vehicle to malfunction, or even if it can be determined what is causing it, expert testimony is not always required to demonstrate that a vehicle has a nonconformity. In many circumstances, including these, a rational juror, without an expert, can understand the facts necessary to decide whether a plaintiff has demonstrated an actionable defect or malfunction. …

“This is a paradigm case. At most, three weeks after Gliottone purchased the vehicle, which had at most 1,461 miles on it when first repaired, the vehicle was unable to start, stalled, and lost power. The relevant invoice showed that the supercharger was installed for ‘engine repair.’ A rational juror, given this information, clearly could conclude that the vehicle was defective or had a malfunction when sold. …

“Nor are the defendants correct that Gliottone needed an expert to negate the statutory affirmative defenses that the nonconformity was the result of an ‘attempt to repair the vehicle by a person other than the manufacturer, its agent or authorized dealer,’ or of ‘any attempt substantially to modify the vehicle which was not authorized by the manufacturer.’ … A jury does not need an expert … to explain that not starting, stalling, and losing power substantially impair the use, market value, or safety of a vehicle. …

“Gliottone also brought claims of breach of contract and express warranty, breach of the implied warranties of marketability and fitness, breach of the covenant of good faith and fair dealing, unjust enrichment, revocation of acceptance, and violation of G.L.c. 93A against Ford, Tasca [Automotive Group, Inc.], and Rodman [Ford Sales, Inc.], on all of which the judge also granted summary judgment on the basis that because Gliottone presented no expert evidence, he could not, as a matter of law, prove that the truck did not conform to the applicable warranties. In light of our holding that expert testimony is not essential to prove that, we must vacate the judgment on those counts as well in order to allow the judge in the first instance to address any of the other arguments made before us that were made below in support of the motion for summary judgment. …

“The judgment is vacated. Because there are disputed facts on the Lemon Law claim against Ford, summary judgment was inappropriate; that claim must be determined at a trial on the merits. As to the remaining counts, the judge should address them in the first instance under the summary judgment standard, reconsidering any preserved arguments that she did not reach in her initial summary judgment order.”

Gliottone v. Ford Motor Company, et al. (Lawyers Weekly No. 11-096-19) (14 pages) (Rubin, J.) A motion for summary judgment was heard by Brown, J.; a motion for summary judgment was heard by Miller, J., and the entry of judgment was ordered by her. Christopher M. Lefebvre (Clovis C. Gregor, of Rhode Island, also present) for the plaintiff; Michelle I. Schaffer for Ford Motor Company and another; Ronald P. Langlois for Tasca Automotive Group, Inc. (Docket No. 17-P-1204) (July 31, 2019).

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