Expert unnecessary to support Lemon Law claim

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A consumer whose new pickup truck allegedly would stall, lose power and fail to start despite repeated repairs did not need expert testimony to support his “Lemon Law” claim, the Appeals Court has ruled.

The Massachusetts Lemon Law, G.L.c. 90, section7N 1/2, obligates an auto manufacturer or dealer to repair any “nonconformity” to applicable express or implied warranties — in other words, any defect that substantially impairs a vehicle’s use, market value or safety — that arises within one year or 15,000 miles of the purchase. If the vehicle cannot be repaired after a reasonable number of attempts, the purchaser is entitled to a refund.

Plaintiff Thomas Gliottone claimed the Ford F-150 he bought from defendant Rodman Ford Sales exhibited problems shortly after the sale that were not resolved by multiple repair attempts, including the installation of an $8,038 “supercharger” that defendant Ford Motor Co. claimed was not covered by the warranty.

 “When the engine falls out of a car on I-95, you don’t need an expert to convince someone why a car isn’t working anymore.”

— Christopher M. Lefebvre, plaintiff’s counsel

A Superior Court judge dismissed Gliottone’s Lemon Law claim on summary judgment, citing his failure to provide an automotive expert to prove the vehicle had a defect rendering it nonconforming to applicable warranties.

The Appeals Court reversed.

“In many circumstances … a rational juror, without an expert, can understand the facts necessary to decide whether a plaintiff has demonstrated an actionable defect or malfunction,” Judge Peter J. Rubin wrote for the court. “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.”

The 24-page decision is Gliottone v. Ford Motor Company, et al., Lawyers Weekly No. 11-096-19. The full text of the ruling can be found here.

‘Absurd proposition’

Plaintiff’s counsel Christopher M. Lefebvre said an adverse decision would have “gutted” the Lemon Law, since so few car purchasers have the resources to hire an expert.

He also called the notion that a consumer would need an expert to prove an obvious defect “an absurd proposition at best.”

“When the engine falls out of a car on I-95, you don’t need an expert to convince someone why a car isn’t working anymore,” said Lefebvre, who practices in Pawtucket, Rhode Island.

“[Manufacturers and dealerships] often argue as a litigation strategy that there’s no defect with the vehicle or that the consumer cannot prove there’s a defect, knowing the consumer may not be able to afford expert witnesses to counter those assertions.”

— Kevin V.K. Crick, Boston

Defense counsel Michelle I. Schaffer of Boston and Ronald P. Langlois of Cranston, Rhode Island, could not be reached for comment prior to deadline.

But Paul M. Harris, a Boston attorney who represents car dealerships, said the court ruled correctly that when a nonconformity is obvious, an expert is unnecessary.

“If [the defendants] after examination of the vehicle found that the reason the truck did not start was because there was tampering with a mechanical part by the consumer, I would expect then the plaintiff would want to hire an expert to refute that evidence,” Harris said. “But a consumer always has the right in a Lemon Law case to state that the vehicle is nonconforming when there is a malfunction such as the vehicle does not start.”

Harris said defense counsel and the trial judge seemed not to understand the distinctions between when an expert is and is not needed.

“I am not surprised that Ford would try and argue that an expert would be necessary, as that is their style,” Harris said. “But I am surprised that the lower court would agree.”

Boston attorney Sarah Decatur Judge, who also represents dealerships, said the decision was significant for its recognition, while analyzing relevant case law, of the difference between a nonconformity appearing shortly after purchase versus a nonconformity alleged by a plaintiff years later, after many miles. The court inferred that an expert would be necessary in the latter instance.

“I don’t think there is a ‘one-size-fits-all’ as to whether an expert is needed for a Lemon Law claim,” Judge noted. “Rather, it is very fact specific to each case.”

Boston’s Kevin V.K. Crick said the decision will help consumers vindicate their rights.

“It’s hard for consumers in this country to afford litigation, and manufacturers and dealerships know this,” the consumer rights lawyer said. “They may often argue as a litigation strategy that there’s no defect with the vehicle or that the consumer cannot prove there’s a defect, knowing the consumer may not be able to afford expert witnesses to counter those assertions.”

A decision such as Gliottone, however, will help more people feel they can afford to bring valid legal claims to court, Crick said.

“In my opinion, this should extend to other types of vehicles the Lemon Law doesn’t cover, such as boats, motor homes and other off-road vehicles,” he added.

Lemon Law claim

Gliottone purchased a 2010 Ford F-150 pickup from Rodman Ford in Foxborough on July 23, 2010. The vehicle came with a limited warranty covering manufacturing defects.

Soon after purchase, the truck allegedly began exhibiting mechanical problems, such as not starting, stalling, loss of power, and dashboard indicators showing it in “wrench” mode.

Ford roadside assistance referred Gliottone to defendant Tasca Automotive Group, a dealer in Cranston, for service.

Gliottone took the vehicle there in mid-August 2010, where Tasca reps allegedly told him that a supercharger would solve the mechanical problems without impacting the warranty. He paid $8,308 in parts and labor and picked up the truck a month later. The invoice indicated the supercharger was installed for “engine repair” and that there were 1,400 miles on the vehicle at the time.

According to the plaintiff, the wrench mode soon reactivated and the same problems resurfaced. He took the vehicle back on Oct. 20, and it was out of service another 10 days.

The truck was towed to Tasca again on May 16, 2011, apparently because it would crank but not start. Tasca replaced the throttle position sensor, but Gliottone had to return again two weeks later for the same problem. This time, Tasca kept the truck for 25 days and replaced the fuel pump.

Gliottone brought the truck in yet again on Aug. 3, 2011, apparently because the hill descent light was illuminating and the truck was losing power. In late fall, the truck was serviced again for power loss.

Tasca ultimately made claims against the plaintiff’s Ford warranty for all repairs except the supercharger, which Gliottone paid out of pocket. The dealership eventually removed the supercharger, but problems allegedly persisted.

At that point, Gliottone demanded Ford take back the truck and refund him. When Ford refused, he brought claims under the Lemon Law and Chapter 93A against the manufacturer, Rodman and Tasca in Superior Court.

Judge Rosalind H. Miller granted Ford’s motion for summary judgment based on the lack of an expert to prove the vehicle was defective. Gliottone appealed.

When life hands you lemons …

The Appeals Court found that expert testimony was not, in fact, required to demonstrate the particular nonconformities in the case.

Rational jurors were capable of determining on their own that a recently purchased vehicle with no more than 1,461 miles that continues to stall and lose power and fails to start, despite attempts at repair, is defective, the court said.

It also rejected the defendants’ argument that an expert was necessary to negate their affirmative defense that the nonconformity resulted from the installation of the supercharger, which Ford tried to characterize as an unauthorized modification.

“A reasonable juror could conclude, without expert testimony, that problems that persisted unabated before the supercharger was installed, while it was in the truck, and after it was removed were not caused by the supercharger,” Rubin wrote. “A reasonable juror could also infer from the relevant Tasca invoice, Tasca’s representations to Gliottone, Ford’s actions in sending Gliottone to Tasca to repair the vehicle before and after the supercharger was installed, and Ford’s continued payment for warranty services after the installation of the supercharger … that the installation of the supercharger was an authorized repair rather than an unauthorized one or a modification.”

Gliottone v. Ford Motor Company, et al.

THE ISSUE: Did a consumer whose new pickup truck continued to stall, lose power and not start despite repeated repairs need expert testimony to support his “Lemon Law” claim?

DECISION: No (Appeals Court)

LAWYERS: Christopher M. Lefebvre and Clovis C. Gregor, of Lefebvre & Lefebvre, Pawtucket, Rhode Island (plaintiff)

Michelle I. Schaffer of Campbell, Conroy & O’Neill, Boston; Ronald P. Langlois of Langlois, Wilkins, Furtado & Metcalf, Cranston, Rhode Island (defense)