LOUISIANA LEMON LAW

Louisiana's superior law - "lemon law" versus "redhibition."
I have represented hundreds of consumers in what are commonly referred to as "lemon law" claims. And, Louisiana does have a law that substantially tracks what other states developed in the last thirty or forty years as a set of automobile consumer laws. Many persons who call my office have read up on the Louisiana "lemon law," or have had its provisions often (incorrectly) cited to them by manufacturer's representatives or dealership employees, as they attempt to apply the technical rules of our so-called "lemon law."

Unfortunately, the Louisiana "lemon law" was amended several years ago that lengthens the time that a vehicle must be out of service from thirty to ninety days! This regressive provision was pushed through, I would guess, by a legislator who thinks he's being a friend to manufacturers.

Fortunately, in Louisiana, we have much better set of laws, with bigger "teeth" in it, which is ignored by most manufacturers and dealers, especially when they tell you, you have no rights. It is important for you to know about Louisiana's best consumer law, the law of "Redhibition."

Redhibition is a legal term of French root origin which simply means avoidance of a sale on account of hidden defects. It applies to anything you buy. If you buy something that has hidden defects that make the use of it so inconvenient that it must be presumed that you wouldn't have purchased it had you known of the defects prior to the sale, you may file a claim to "rescind," or undo, the sale. If the problems aren't so severe as to warrant a rescission of the sale, the court may award a reduction of the purchase price, a partial refund of the purchase price. With a reduction, you still must pay the financer in accordance with your financing agreement, but there's a cash settlement the manufacturer must give you.

The consumer's responsibility in a "redhibition" claim is much less technical than the "lemon law's" requirements of a certain number of days or repair attempts and proving "nonconformance to an express warranty", whatever that means. Under redhibition, a consumer merely need give notice and a reasonable opportunity to repair to the seller and the manufacturer. In automobile, mobile home, lawnmower, boat, and equipment cases, this is fairly easy, since you merely bring it to the seller, who is usually a factory authorized repair facility, so two birds are killed with one stone.

As long as the consumer gives the "reasonable" attempts to repair (notice, no minimum number of times requirement), he or she can file a claim or suit when it's not fixed right. As a practical matter, my office advises consumers to go back to the dealer as long as he is willing to attempt a repair, especially if a vehicle or other item is relatively new. In other words, do not "jump" on a chance for a claim within the first few thousand miles of a vehicles life if the dealer hasn't exhausted his repair remedies. That would be unreasonable.

However, when it's clear that the end of the rope is near, consult an attorney if the repairs have either 1) not fixed the problem, 2) apparently fixed the major problem, but there are other problems that cause excessive repairs, or 3) you've been induced to repair and repair again over a long period of time with no end in sight.

Under the redhibition laws, you must merely prove that the item failed to operate in the intended manner during normal use and that you have given the seller and manufacturer notice and reasonable repair attempts. It is that simple. No minimum number of repairs, no minimum days out of service.

So, don't get discouraged and don't let some out of state 800-number corporate argue the "lemon law" with you. Stay within the principles set forth in, What to do when you buy a lemon in Louisiana, and do the right thing.

Recent developments provide greater recovery for Louisiana consumers!
Commercial vehicles - lost profit is important.
Defective Commercial Vehicles

In situations involving consumers, they are often interested in getting their money back or another vehicle. Situations involving commercial cars, trucks, or vans, have an added element of need almost always - that is lost profits. Downtime can cause a loss of business revenue that is immediately noticeable. To maximize your chances of collecting that amount of damages, you must be able to present to your accountant, and eventually the attorney, figures about the amount of downtime, dates of downtime, extra expenses to hire substitute vehicles, and loss of money from related opportunities you might have had to make money. Tax returns, gross sales figures, and other records can be used to establish the losses.

For example, a wrecker company that also has a body shop may lose revenue not just from the fees from the wrecker call but also because they didn't get to repair some of the vehicles and therefore body shop revenue is down. Although it is impossible to determine exactly, the amount of the lost revenue, use of average formulas or other accounting methodologies can be developed by your accountant or a business expert in your field.

Another example, a case prosecuted by Fred Pharis, involved a new Gm C-3500 pickup with a 6.5 liter diesel engine, purchased by an experience, former long haul trucker and his wife. The rig was to be used for "hotshotting" or making relatively light hauls of oil field tools or parts, or landscape plants sold by nurseries. The transmission had to be replaced in Ohio, and then later was worked on in Baton Rouge. The injector pumps broke several times. Other defects kept the truck in the shop. The upshot of the problems was that the fledgling business never got off the ground. The company the truck was "leased" to (it provided contract hauls) discontinued business with the couple. The husband went back to work in the oilfield, and was in debt to a bank for not only the truck loan but a business loan that couldn't be paid back. The case was tried for one full day and scheduled for another. Before the second trial date, the trial judge indicated that he was willing to award a certain amount based on the evidence presented that far. GM settled for that amount, which provided the clients with more than enough to satisfy the bank and return them to good standing. The husband and wife presented evidence themselves based on their former trucking experience that apparently impressed the judge sufficiently that he would have awarded a substantial amount for lost profits.

To make it easy, make sure you keep good records, even if you don't know that the problem will affect you that much at the beginning. Good record keeping will help greatly if later you have to sue a manufacturer for a defective vehicle.

Manufactured homes have special rules.
A special case: Mobile Homes in Louisiana.

Mobile home defects complaints must be handled a little differently than a lemon law claim in Louisiana. The Louisiana Legislature passed a law in 2012 called "NEW MANUFACTURED AND MODULAR HOME WARRANTY ACT." This is truly special interest legislation at its worst. For the first time in Louisiana law, manufactured homes are not considered products in the sense of redhibition or lemon law. Instead, an administrative system is put in place that is hard for the State of Louisiana to administer, and is, presently, almost impossible to get right.

There are now three levels of defects, a one-year warranty at first for almost anything, then two years only for "system" defects - plumbing, electrical, heating, cooling, and ventilating systems, then five years for structural defects. These are much-shortened considering the protection given other consumers under redhibition or lemon law. However, it gets worse.

Instead of just giving notice of defects to the dealer, and, directly or indirectly, to the manufacturer, you now send a certified mail letter to the Louisiana Manufactured Housing Comission "[b]efore undertaking any repair himself or instituting any action for breach of warranty". Then, the Commission sends out an inspector. Unfortunately, many of the inspectors are overworked, and it's difficult to get them out in time, especially if you've noticed the defect toward the end of the warranty period. Then, after the inspection, the inspector notifies the manufacturer, dealer, or mover/setup company what is supposedly their responsibility in repairing. Then, those companies are given reasonable attempts to repair. Seems fair, right? Actually, it puts another layer of administrative drag on the process. The inspectors are good people with a tough job, after repairs, they are supposed to come out again and re-inspect to determine if the repairs have been made. Then, you may file suit.  

The Act as written is poorly drafted, attempts to follow the New Home Warranty Act, a terribly drawn piece of legislation in and of itself, and really cuts off consumers rights. This law was passed the OUT OF STATE manufacturers appeared before the Louisiana legislature to stack the deck in their favor. Combine this with mandatory arbitration clauses and the whole idea was to try to discourage consumers and their attorneys from the ability to obtain justice. Further, the manufactured housing industry has in conjunction with this made their warranties much more limited, at least in one case I've seen, and the consumer does not have nearly protection he did have. If I were the dealer, I would be screaming about the fact that the companies, whose product I sell, are offering less warranty protection for my customers, which may very well have an impact on sales and the reputation of the industry.

You may have other remedies. Some courts, in response to the New Home Warranty Act's restrictions have ruled that, despite the "exclusive" language in that Act (thus, in the very similar Manufactured Housing Act), if the Act excludes some items you'd normally think would be covered (and there's a long list), then other laws of general warranty apply. Sometimes, the problems may be caused by stress on delivery, and therefore may be subject to an insurance claim with the insurer of the delivery company. Thus, you may be able to make a claim in that fashion, if that's the fact. However, this is sometimes difficult to prove.

Always remember to use your resources, in this case, the fire marshal's inspection, documentation of repairs, and letters of complaint.

When you hire a lawyer.
It is extremely important that an attorney advise you on the applicability of the law and what to do after the notices and if the problems aren't repaired - call that lawyer! Get the advice now before your multi-year investment gets beyond the law's help.

Extra damages are awarded for defective RVs, boats, or other pleasure products.
RVs, boat, and pleasure craft - extra damages are allowed

What hurts more - having a defective car or truck that you can't use or keeps breaking down with excessive repairs and continued headaches, or taking your new boat, RV, camper, trailer, or four-wheeler that you use 6 - 10 times our and having breakdowns, down time, and spoiled trips? Your car or truck is very important. But, because of the way the law has developed in Louisiana the last two centuries, you can only recover damages for "mental anguish," humiliation, embarrassment, etc., if caused by trying to use a defective pleasure vehicle. These "general damages" usually mean an add-on to the end value of a settlement or judgment of anywhere from a few thousand to several thousand dollars. Case in point: Poche and friend purchased a souped-up offshore fishing boat that had engine problems. For four years they tried to get the manufacturer, Bayliner Marine to try to do something about it. When the manufacturer didn't respond, they took it to court. The court not only granted a rescission of the sale, but $10,000 apiece for their headaches. Now you get the idea. If it's for pleasure, what you do on the weekends with buddies or your family, you get something extra for the lost pleasure. But not for the headaches associated with your family car or truck. That is the present state of the law.

New Assistive Devices Warranty Act - Help for the Disabled.
Louisiana has a special set of rules and laws for consumers who buy or lease assistive devices, such as wheelchairs, motorized scooters, hearing aids, talking computers - basically anything used for a major life activity.

If the device is sold or delivered in Louisiana, and proves to be defective (i.e., does not conform to an applicable express warranty) and the consumer reports the nonconformity to the manufacturer, the assistive device lessor, or any of the manufacturer's dealers and makes the assistive device available for repair before one year after first delivery of the device to a consumer, a reasonable attempt to repair the nonconformity shall be made. If the manufacturer or dealer refuses to repair, or doesn't do it within a specified time, or doesn't make a rental device reimbursement available while being repaired, penalties, including twice the amount of the "pecuniary loss" (apparently what's been paid or owed by the consumer), plus cost and attorney's fees can be awarded.

Used cars are cars, too.
It is true that sometimes people who buy used cars or other articles aren't in as good a legal position to assert their rights as those who buy new. However, you do have rights, and we will discuss how.

Waivers of warranty might not stop you.
In Louisiana, a used vehicle is required to work reasonably well for a reasonable period of time. Further, there is legal authority that the waiver of warranty you probably signed when you bought the vehicle will not stop you if the problems are so severe the vehicle was rendered absolutely useless. Further, the dealer has to be very careful about a waiver. If it's not in the sale contract, clear about waiving Louisiana's implied warranties, and pointed out and explained at the time of the sale, the buyer retains all his rights, including for non-major repairs. So, don't take no for an answer when they've taken thousands of dollars of your money and then claim you waived your warranty.

It may still be the manufacturer's responsibility.
Even if you didn't buy it new, if the defect wasn't the result of ordinary use, or if it failed or broke within a substantially shorter period than commonly expected, the manufacturer could well be liable.

This is especially true with cars, trucks, and motor homes. A transmission normally shouldn't fail in 25,000, 35,000, 45,000, or even 55,000 miles. An engine should normally last the first 100,000 miles. A paint job should last the life of the car. Mechanics' reports, or in-court testimony, establishing that the component was otherwise well taken care of with no obvious signs of customer abuse will often get you over this hurdle to asserting your rights before a judge.

This is often where "secret warranties" come in. Often, manufacturers, sometime pressured by government regulators will agree to repair a vehicle for free if the customer complains. However, they might not notify the customer directly to find out which have been victimized by a badly designed or weak part to offer the repair. Only if you bring it in will they repair it. It is a good idea to check with a dealership about whether or not the manufacturer is offering a repair on a certain component that seems to have broken prematurely. See "What to do when you buy a Lemon" for government information that you may be able to use in your favor.

Trial Stories. True case stories of Fred Pharis' trials
Trial Stories

These are cases actually tried by me (with one exception regarding the true story of the MacDonald's coffee spill claim.) In some cases, the clients' names have been changed. In other cases, permission has been granted:

Tractor fires don't occur just spontaneously!
2015 saw a significant case involving a Case New Holland (now CNH Industrial America, LLC), tried before a jury where, despite the defense actually contending that the plaintiff couldn't prove the fire started in the farm tractor, despite 5 witnesses immediately on the scene at the site of the farmer's tractor shed shortly after the fire started testifying to such, the jury saw through the subterfuge and found liability under Louisiana's redhibition law and the Louisiana Products Liability Act.

Excerpt from Pharis Law Offices Facebook page:

TRACTOR FIRE VERDICT FOR THE VICTIM FARMER..
After a multi-day trial in Columbia, Louisiana, before a jury, and against lawyers from Kentucky and New Orleans, defense experts from Boston and Texas, and with an excellent forensic electrical engineer for our side giving credible and scientifically unshakeable testimony, the jury did not buy the often ridiculous and always incredible argument by the manufacturer that tractors sometimes just catch on fire for no apparent reason. Instead, we proved that poor quality control at CNH America, LLC's factory, including failing to install the exhaust heat shield called for in the specifications and the routing of battery cables too close to the engine exhaust and including T-splices in the cables in unfortunate places that led to prematurely loose connections in the exhaust pipe area caused the fire after a simple power washing provided the proverbial straw that broke the camel's back - moisture from the washing provided the bridge for the current to flow between the prematurely failing connections, causing arcing between the positive and negative battery cables of between 4000 and 5000 degrees which melted the nearby hydraulic hoses, providing flammable liquid sprayed on the arc flame akin to, as I had the defense's engineers admit under cross examination, you spraying charcoal lighter fluid on the open flame on your barbeque pit - it makes the fire very big and very hot, very fast. In ten minutes, this relatively new tractor went to looking like the first picture to the second picture (after the flames were put out). We proved liability in all three phases of the law - redhibitory defect, defect in construction and composition, and defect in design. A portion of the jury verdict form is published below (not confidential - is a public record). Thanks to my client , my expert, the most excellent trial judge, and the wonderful jury for seeing through a defense strategy that included denying the fire even started in the tractor (despite 5 eyewitnesses that arrived on the scene within 15 minutes of the fire and testified that the tractor was the only item in the shed on fire)

To see the pics, go Pharis Law Offices Facebook page, here.

The case of the missing miles.
She was only 19 when she bought her first car - was proud of it too - a same model year Nissan Maxima. Only 25,000 miles. She had made a good deal - she thought. Her fiancé signed the note with her, and she drove it home to show her older brother and his friend who happened to be there. On the celebration drive, the friend, who happened to be a former certified GM mechanic noticed a few anomalies. The cigarette stains on the head liner - the gasoline stain underneath the fill cap - the odometer jump when it turned over a new mile - the looseness of the clutch.

The next few months were a nightmare. That clutch was replaced, the wheel bearings packed, the tires changed, the electronics tweaked, oil pan gasket replaced. She was enterprising, and finally consulted the friend. He reluctantly told her he thought the odometer had been rolled back. She decided she would find out and called the Nissan hotline. The Nissan people told her to what dealership the vehicle was first shipped when imported - a Mississippi dealership. She called from Louisiana and had the dealership look up the service file. The vehicle had last been service for an oil change at 64,000 miles. She was upset and she was mad. She called the previous owner. How in the world could a late model car like that have so many miles? Simple, he had worked for the railroad in Colorado and made a weekly or biweekly trip in the car from his home in Mississippi.

She consulted one attorney who responded with a four page letter on the what, ifs, and wherefores of the "lemon law". Not satisfied, she reported to Pharis Law Offices. Suit was filed and the case proceeded against the local Nissan dealership, the Baton Rouge intermediate dealership, and the auction the B.R. dealer had acquired it through. Through title searches in three different states, it was learned the vehicle had most likely been tampered with in Alabama after the original owner had traded it in. Three different used car dealers owned it in quick succession in Alabama. Apparently odometer statements weren’t required there. Somewhere along the line, a "duplicate" title was applied for and the <25,000 mileage figure came into being. The crooks thought Louisiana was a good place to fence the goods. They were wrong.

The case was tried to a jury. The local dealer was held liable for a return of the purchase price, $15,000.00 attorney’s fees and $30,000.00 in other damages. The defense attorney was granted permission for the jury verdict form to have a question "what was the unfair trade practice committed by [the local dealership]? The jury answered, "Should have known of the defects." The evidence showed the dealer’s employees to be knowledgeable about cars’ mechanical operations and certainly knowledgeable about the titling of cars. The turning point came when the owner of the local dealership, under cross examination admitted demanding more than $54,000.00 in reparations from the B. R. dealer. During the deliberations, the jury asked for a calculator. Fred Pharis just happened to have one.

Even Mercedes’ have the blues.
A doctor of optometry had two offices, one in Alexandria, one in Leesville, Louisiana. Success had come to call. He needed reliable transportation. A Mercedes off the showroom lot would be a good investment. They lasted a long time, the story went, because German engineering was superior.

Little did the doc know that years before Mercedes had put out a service bulletin about valve stem seals on that particular engine, that would deteriorate over time, allowing oil to seep into the cylinders, where it would burn. The problem had become so bad that a flow-chart style diagnostic procedure had been developed and was put in the service bulletin. A new design seal was suggested, but not guaranteed to fix the problem.

Soon after the car was bought, the car began using two quarts of oil in 125 miles. At 13,000 miles, the first transmission blew apart at highway speeds in Ball, Louisiana. Another transmission blew apart when car was backing out of the doc's driveway. At the time of trial, the vehicle was disabled with the third transmission stuck in gear in the doctor’s driveway, where it had been for the better part of a year. The air conditioner went out, the power driver's seat malfunctioned, and on and on.

Before trial, Mercedes brought in its "pro from Dover," a small man with a German accent who bragged to the doc’s attorney during the defense pre-trial "inspection" that he was the one who made the decision on whether a case would be settled or go to trial. An obvious technical genius, so Fred was duly respectful. During the inspection, the attorney was asked if a valve in the transmission could be replaced. It was suspected it had been put in backwards. A test drive had already verified the vehicle wouldn’t get out of first gear. Sure, replace the valve body. Much to the dismay of the pro, it didn’t work. He became angry, cursed the attorney. The attorney turned away. Needless to say, the pro didn’t recommend settlement.

During the trial, the defense’s only strategy, it seemed, was to say that the doc had failed to perform the 30,000 mile transmission service and didn’t know how to read his dipstick. That, and class jealously was all they seemed to go on. No one liked anyone who can afford to buy a Mercedes. Surely, none of them could afford to own a Mercedes. The jury was made up of a cross section of blacks and whites, male and female, middle class and not so fortunate.

On cross examination, the service manager of the dealership was asked if when a transmission blew apart it lost most of its transmission fluid. Uhhmm, yes. And, when a new transmission was put in, wouldn’t it start the time for servicing the transmission over again. Well, yes. Therefore, the 30,000 mile maintenance, although not "officially" on record, was unnecessary because of the new transmission. Of course. And, if the doc didn’t know how to read his dipstick, why did Mercedes spend thousands of dollars trying to fix his engine? And, why the service bulletin that predated the sale by a couple of years if the problem was with the driver... And, while we’re talking about it, did Mercedes ever warn potential buyers of this engine type of the potential for this type of problem? Ever offer an extended warranty to its aggrieved owners? Did it ever make an offer to give even a partial refund to anyone? No, no, and no.

When the pro took the stand, his normally slight German accent became much heavier. On cross examination, he couldn’t seem to understand the questions although he had spoken perfect English before. However, he did offer his opinion. It seemed, he opined, that the doctor had blown up his own transmission by backing the car down a steep incline and slamming it into drive. Even Mercedes transmissions can’t take that. Then, how do you explain the transmission coming apart at highway speeds. Oh, that’s easy, he must have shifted into neutral, revved the engine, and slammed it into drive. Why would he do such a thing? Why, he wants to win the lawsuit, of course.

The pro and the other Mercedes rep weren’t present during the closing argument. They had flown the coop, to leave the hapless defense attorney to face the angry jury alone. The plaintiff’s attorney mentioned that in his closing argument. That fact apparently wasn’t lost on the jury.

What follows is an actual excerpt from the notes on the closing argument given by Fred A. Pharis in LeBlanc v. Mercedes Benz of North America, Inc., Ninth Judicial District Court, Rapides Parish, Louisiana:

This case involves a real machine sitting out there on Dr.'s driveway, where it has sat for over six months - it's a real hunk of metal, of wires, of electronics, of plastic, rubber, steel and leather. It's a pearl gray monster sitting on the backs of real flesh and blood people that you've gotten to know. These men would have you think like this cold, gray machine with clever arguments that would sentence doc and his wife into bondage with the Bank for the rest of the life of their loan. That would force my client to perhaps pay another $5000 to replace another rotten transmission. Look at these people - do they deserve it - no - but that machine deserves it. You have the power to send it back where it belongs - to the drawing board of Mercedes-Benz - back to the men that sent it to land in Alexandria, Louisiana, from the concrete driveway of two very honest hardworking people. If you cannot break these bonds - if you cannot find it within yourselves to do what is fair, just, right, and within the law, I have failed and failed miserably to do what is right. Whatever you do in the jury room is whatever you do - and no one will criticize you for it because you are the jury - we have come with faith and trust to put this in your hands, because we know that 12 minds think better than one or two or three, that 12 good people can do what's right. Maybe there's something we've missed - something that would have made it easier to make up your minds - but untruths have been told here in the last few days - and they have not come from the mouths of my clients. Unfairness and deception spawns more unfairness and deception - please break the chains of unfairness and put this situation right.

The jury returned with a verdict granting a full return of the purchase price, no credit for the 54,000 miles put on the vehicle, and $15,000.00 attorney’s fees. After the verdict was over, some members of the jury came and hugged the plaintiff and congratulated the attorney. After the judgment was final, the car was towed off by MBNA to...where?

The vibrating Town Car.
Is luxury just a name? The judge didn't think so. A Lincoln Town Car that had a bad driveline vibration and excessive wind noise that couldn't be fixed, despite replacing the driveshaft (transaxle), the tires, tweaking the alignment and adjusting the doors should be sent back to Ford Motor Company. The Ford representative testified at trial that "all Lincoln's do that" - talking about the excessive wind noise. He said that that's the way they were designed. To the judge, that translated into a defect. The service manager testified that the plaintiff didn't know what he was talking about if he was calling it a driveshaft vibration. Why, the Lincoln didn't have a "driveshaft," it had a "transaxle." During the lunch break, the plaintiff's attorney went back to his office and found a service bulletin that described service on that model year Lincoln town car and clearly used the word "driveshaft." After lunch, when confronted with the document on cross-examination, the service manager still insisted that it was not a driveshaft, despite the opinion of Ford's engineers. Needless to say, his testimony was not credible. The judge felt that when you pay a luxury price, you should get a high quality car. So, take it back, he decreed, and let the engineers deal with it, whether it has a "driveshaft" or "transaxle."

Even the plaintiff didn't know his motor home was this bad.
It was a fabulous motor home, a new design and model from the factory, and just what the family was looking for. The husband and wife, both working parents, bought the motor home to take their pre-teen children on trips to Disney World, weekend campouts, and far West vacations. The father worked long hours and wanted to recapture the time away from his wife and family on extended vacations.

Motor homes are built now days with "slide-outs." They are room expanders that slide out from the side of the motor home when it's on site, greatly increasing the floor space. The new Fleetwood motor home's slide out didn't always work right, though. Sometimes it would slide out, sometimes it wouldn't. Sometimes the electric button switches would short out. When the slide out did work, it often leaked, causing the carpet to mildew and have to be replaced.

Toward the end of the first summer, after numerous complaints, the manufacturer persuaded the husband to let them drive it to Indiana from New Orleans, to fix the vehicle. It was to take a month... it took six weeks. When they got it back, the wiring to the slide out was hanging out in disarray. And....sometimes the slide out still wouldn't work right. To top it off, the motor home had been promised back before Labor Day. A holiday trip was all planned. The Friday before Labor Day came and went, and Saturday, Sunday, and Monday, with the family waiting for their motor home. It was finally delivered - the day after Labor Day. Not to mention, the clothes dryer didn't work, the interior molding was falling off, etc., etc., etc. The plaintiffs began calling Fleetwood. It was returned to the dealership, who promised it back before Thanksgiving. A Disney World trip was planned. It was delivered the weekend before the holidays - but without a washer/dryer. Okay, they could live with that, just get it to us in time. It was delivered, and the fresh water tank fill hose was hooked up and left on all night before the trip. The next morning, the husband opened the door, and waster rushed out in a torrent - the dealership had forgotten to cap the washing machine lines. The hose had been filling the motor home up all night, not the tank. The family frantically called and found a motor home for rent. They unloaded their motor home and reloaded the rented one. At least one day of vacation was lost. Words were exchanged, suit was filed. The washer/dryer was never replaced.

During the course of the discovery (finding out about the other side's case), the documents from the factory repair were obtained by the family's attorney. The slide out it turned out was not the main problem, but just a symptom. The main problem was the frame had separated at the slide out joint, about midway down the motor home, allowing the rear to drop about four inches. The frame was simply not strong enough to support the weight of the body. The family didn't even know they had traveled in the motor home with the frame sagging. Although a dealership technician had discovered the problem long before an attorney was consulted, it was never revealed to the family what they had been exposing themselves to. It was further discovered through more documents, that on the next model year, frame design changes were implemented during manufacturing. Although the family was well into the next year, they had never been warned of a problem. Further, the same Fleetwood dealership in Louisiana had bought five used motor homes that had been repurchased by Fleetwood from consumers with frame complaints and they had been resold at the dealership. Before suit had been filed, the husband had been offered a trade of one of the (unknown to him) refurbished units, which he wisely declined.

Armed with the new information, the family's attorney filed more discovery requests, which basically said this: Give us the name of the engineer who redesigned the frame so we can depose him, tell us the names of the five customers who bought the "fixed" motor homes, give us a copy of the intra-company advertisement that offered the rebuilt motor homes to the franchised dealers, tell us how many motor homes were affected, explain the Canadian recall for the slide out pump (not issued in the U.S., incidentally), show us the design change documents. The manufacturer did not want to reveal that information. Instead they finally made a serious offer to settle the case. The offer was accepted.

The truth about the MacDonald's coffee spill case.
What about "runaway jury verdicts." Fact or fiction? Before skewed news report and politicians' ravings have you ready to tear down the establishment, do some investigating. Start with this link to find out about the truth behind the famous McDonald's coffee spill case. Would you like to be the little old lady who burned herself so bad she was hospitalized for eight days, during which time she had to have skin grafting surgery in the genital and groin areas? Link.

Ford Taurus blues.
It was the first new car she had ever owned. A dark green Ford Taurus. She and her husband had worked hard for the chance to have a dependable car that would take her from her rural home to the city to work. However, she didn't know that Ford had a problem with its transmission linkage and that a parking pawl shaft (the gearshift changer) was too short. Soon after she bought it, the parking gear would sometimes not catch, allowing a "free roll" of the vehicle. This particularly was of concern when her three year old grandson would be playing in the driveway as she pulled up. At 1567 miles, the transmission was replaced by Ford. She was disappointed that the repair was so severe so early in the life of the car. But, the problem wasn't fixed. The parking gear would now catch, but the car would roll a distance of up to a foot and a half before stopping. Ford came out with a nationawide recall several months later for this very same problem, which was performed twice on her car over a year's period. It didn't help. She called Ford's 800 number and was told they would not buy back her car, but it would give her a free extended warranty. When the transmission continued with its problem, plus she counted the other problems she was having, excessive wind noise, the trunk not "popping open" like it should, the key buzzer continuing to buzz after the ignition key was removed, the console lid falling off, the driver's door unlocking itself, the inside door panels falling, the dome light staying on with all doors closed, and the door handles not working when it rained, she decided she'd had enough and contacted Pharis Law Offices, but not until after she was laughed at by two repairman as she walked away from them after delivering the car for an attempted repair.

At trial, Ford's representative casually stated that the repair history, including the replacement of the transmission, the double recall repair, the rebuilding of the transmission, the replacement of the ignition switch, the replacement of the door locks, the replacement of the console lid, the resealing of the windshield to try to stop the wind noise, and other repairs were not excessive. Further, Ford's attorney tried to explain away the problems by eliciting answers to questions from the representative in effect stating that since a major design change was first presented to the American public with this model (a 1996), some "bugs" just had to be worked out, even at the consumer's expense. That's just the way it was.

At the close of the evidence, the trial judge expressed his feelings that while Ford's representative, through his work, may have become calloused to the plight of people such as the plaintiff, the American public certainly didn't accept that view. There was ample proof of manufacturing defects. However, because of the mileage at the time of trial (approximately 65,000), a rescission of the sale would not be awarded, but a 50% reduction in the purchase price, plus attorney's fees. In other words, the plaintiffs were outright awarded almost $11,000.00 as a "reduction in the purchase price," plus 50% of the accrued finance charges to date (approximately $5,000.00), plus attorney's fees. The judgment, counting attorney's fees and legal interest, was almost $25,000.00, and the plaintiffs kept the car.

Plaintiff's "attitude" is no defense (a manufactured home tale).
Manufactured homes present special problems - not just in the law, but also in the way the industry has responded to consumer complaints. Thus, sets the stage for the following case.

The family decided to special order a double-wide mobile home similar to one they saw on the lot. It would cost a lot less than a site-built house, and the TV ads were so attractive, showing spacious rooms, fine furnishings, and offering a dream of home ownership at a fraction of the cost of conventional housing. When the home arrived from the factory, the family was notified and told they had to move the home off the lot because more were coming in each day. The lot on which it was to be set up was muddy from several days of rain, but the dealership insisted the family let them move it off the lot. So, it sat by the road several days before being moved approximately 50 feet to the home site when it finally dried out. During installation, the husband was shown by the installer that one half of the home was built longer than the other and that therefore there was a problem putting the two halves together. The installer was concerned enough to call Chandeleur, the manufacturer, about the home. Chandeleur didn’t respond so it was put together anyway.

Immediately after the setup, the husband and wife noticed that the ceilings and the wall sheetrock was bowed throughout the house, carpet was not attached to the floor, the floors squeaked throughout, the floor seam between the two halves although overlaid with carpet was visibly uneven and created an unsightly hump, shelves fell down, trim fell down, there were sags in the roof, the wall in the laundry room was not attached to the adjoining wall, the kitchen sink hole that is cut at the factory was not cut straight, the floor had openings under the sink that let mice in, water was leaking under the home from the a/c system, the shower eventually cracked, doors and trim were crooked and not cut correctly, and other problems. The interior ceiling panels, or "ceiling splines," did not match up from one side of the house to the other. These are designed to cover up the sheetrock lines in the ceiling, and were later moved over by the defendants during the repair attempts. But, the house was never re-aligned

After several unsatisfactory repair attempts, the family hired an attorney who filed a suit. This was eventually converted to an "arbitration" proceeding before a retired judge whose decision would be final. At the hearing, the defense, which had no defense at all, tried to deflect criticism by complaining about the plaintiffs' "attitude" rather than owning up to the problem and refunding the money. The plaintiffs were forced to establish that the family first submitted a initial list of repairs in April, 1995. Thereafter, the dealer made several repair requests to the factory , the dealer made 14 repairs on May 9, 1995, and releveled the house on July 2, 1996. The plaintiffs then wrote a demand letter through previous counsel on August 10, 1995. Despite the demand letter, plaintiffs then gave notice of allowing an attempt to repair by letter dated August 28, 1996. The plaintiffs then spoke to the female representative of the factory on 9/12/95. However, the manufacturer's service manager, was blaming these serious problems on the dealer. Thereafter, on at least two occasions in 1995, the first one at an unknown time, the second one on Oct. 14, 1995, the manufacturer’s repairmen came out to try to fix the house. The first time, the repairman had no repair materials on his truck, and the second time on October 14, 1995, the repair crew was at the residence four and one-half hours. The repairman's own notes, shown at the arbitration proceeding, showed that the repairman informed the husband that "to fix his home such as the roof that we would have to remove shingles and decking to get to the problem..." That repair was eventually done.

In January, 1996, suit was filed within one year of the sale. Despite the suit being filed, previous counsel met with representatives of the defendants at the site in June or July of 1996, and a repair attempt was agreed to. Thereafter, in July, 1996, the manufacturer’s crew did the major repair documented by a videotape the plaintiff made. The repair required removing most, if not all of the roof from the outside, shoring up trusses, relocating blown insulation, removing and replacing walls, and replacing inside ceiling tile. Defendant Chandeleur’s own witnesses, the service manager and quality control person, both testified at the arbitration, under cross examination, that this was necessary because of at least one broken roof truss and bowed rafters causing swags in the roof. The bowed rafters were clearly shown in the videotape during the repairs when the decking was removed. The tape also showed disconnected upper parts of several of the trusses from the top rail or roof ridge, which defendant's witnesses admitted is used to lag bolt the two halves together. The tape also shows several severely bent lag bolts and a failure by the workman to re-spread the blown insulation. Needless to say, the roof still sagged and the ceiling and walls were still bowed.

The manufacturer's own quality control chief, while testifying that the disconnection of the rafters, or top part of the trusses, was of little significance structurally, admitted the structure should have been manufactured with the rafters connected as shown by the diagram of a cut away of the roof . However, he also believed the problem to have occurred during the set up of the home, and therefore was the dealer's responsibility.

The defendant's explanation for the bowed walls and ceiling panels was condensation, which they testified could occur from having an aquarium to allowing the clothes washer to run too much! The plaintiff's expert testified the problem was caused by the poor workmanship in the construction of the home at the factory as explained by the obvious defects shown on the videotape, including the bowed rafters, and not condensation.

None of the defendants could explain why none of the repair orders or other repair documents showed that condensation was the culprit, or why this theory was only presented after the plaintiffs filed suit.

The arbitrator ruled that the plaintiffs were entitled to a rescission of the sale, with a return of the purchase price, including finance charges and the payoff of the note. In addition, the husband and wife were entitled to mental anguish, separately. A credit for use of approximately $200.00 per month was deducted from the award. Attorney's fees were awarded, in addition. All in all, the plaintiffs were happy to be rid of a 20 year mortgage on the defective manufactured home.

One Sunday, the plaintiffs' attorney, Fred Pharis, and his wife and children were proceeding to Sunday dinner at a local restaurant when two tractor trailer rigs crossed at a light, each pulling one half of the matching halves of a double-wide. Fred recognized it as the plaintiffs' former home, bowed rafters and all, en route from the home site. A fitting end.

No cross-country in this Mitsubishi.
Ms. B. bought a new 1999 Mitsubishi Mirage. Unfortunately, at about 3,000 miles, the car started chugging, dying, and surging. Ms. B. dutifully reported it to the dealership, which began her odyssey of repair. The repairs included replacement of the TCM (transmission control module), then the PCM, which is not to be confused with the ECM, which was also replaced. A factory ECM (or PCM, or was it the TCM) was even taken off the factory assembly line and sent to the dealership. It had new "programming," a change from how it was originally manufactured. When it was put on, Ms. B. had worse problems then before and asked the service manager to put the old one back on, which he did. At other times, the idle was set high (another change from the factory settings), and then set low, but yet the engine would alternately chug, or act like it would die out, and sometimes surge, or inexplicably speed up. Over the next four months, there were at least five repair attempts. Finally, in May, 1999, the service manager of the dealership told her that Mitsubishi recognized a problem, but would not have a repair for 90 days. He would call her when the fix was determined. Ms. B. dutifully waited through August, September, and even October, before she finally called the dealership. Oh, yes, the service manager stated, the service bulletin was out and the fix was in, I just hadn't called you.

The big repair job was finally complete, but, guess what, the vehicle would still operate strangely. Other repairs needs cropped up. All four window glasses would not stay up, but roll down by themselves a few centimeters, causing wind noise and other problems, an improper factory weld caused the frame to make loud noises, hood hinges needed fixing, and water would leak from inside the doors after a rain.

Finally, in November, 1999, Ms. B. called the 800 number in the warranty booklet. Documents later obtained after suit was filed showed she called at least three times and was promised a visit by the factory rep. However, the rep later testified at trial that she was "sick" and couldn't make it until three months after a visit was promised, although no one ever gave Ms. B. that explanation. When the rep had finally met with the customer and the service manager, they denied a problem, despite the customer pointing it out on a test drive. At trial, the rep testified, despite having met Ms. B. only once and then for a few minutes, that Ms. B. obviously didn't know how to drive a four cylinder vehicle, despite the fact Ms. B. had owned four cylinders vehicles for the last fifteen years. In fact, Ms. B. had never needed a larger engine because of almost exclusively in town driving. Her husband was disabled and they didn't do much long driving. Because she was the sole bread winner for the family, she had bought a new car, to avoid repair problems and for reliable transportation to work. Unfortunately, she got a lemon.

At trial, the service manager and the rep adamantly testified that the vehicle was now safe because of the fix, the rep going so far as to say, "I would not be afraid to put my family in the car and drive across the country." This was despite earlier testimony of the customer's uncle that not two weeks before, while he and Ms. B. were riding in the vehicle, the vehicle chugged and lost power so badly he was put in fear of causing an accident on a busy bridge across the Red River between Alexandria and Pineville, Louisiana.

Not surprisingly, the judge wanted to test the vehicle himself. It was parked at Fred Pharis' office, and the parties proceeded to the office. The judge offered for the two attorneys to ride with him, but Fred Pharis declined, stating he had four young children who depended on him. The defense attorney also declined to ride for whatever reason. The judge drove the vehicle for ten miles in about twenty minutes. Upon his return, he reported that the vehicle died while coming to a stop and while proceeding up an Interstate on ramp, the engine "raced" and picked up speed for no reason.

The judge granted a rescission of the sale, with a full return of the purchase price, payoff of the mortgage, less a credit for use, and attorney's fees. Ms. B. wryly remarked to the attorney later that the judge should have included a cross-country trip for the rep and her family in the car.

The moldy mobile home.
The mobile home dealer knew what the lady and her husband needed. Not that brand of double-wide, but this one over here, manufactured by Belmont Homes of Mississippi. The quality is indeed good, and the lot where you want to put it is just fine, put it right here.

Dot had never been able to afford a new home in her life. And, with her husband mentally incapacitated, she had to wait for a long time, until his social security benefits finally came in. But, there it was, a home she always wanted, with Williamsburg Blue carpets, Grasmere Sorbet colored wallboard, real plywood floors, and real shingles on the roof. And Big Ed had told her to put it in this spot, next to her uncle's house. Her uncle could help watch out for Johnny and the property was donated by her mother's family. Finally, she would get a dream to come true. The consumers signed up for 25 years of payments, committing themselves to the finance company, and taking the best part of their paycheck to pay for this home.

Unfortunately, the dream became a nightmare. Upon being delivered, the dealer knocked off a roof vent. The set up crew failed to trim the home out correctly, leaving gaps in wall coverings, molding unfinished, walls wrinkling or bubbling, trim work not finished, cabinet work that was crooked and not put together right, a big carpet stain, rusty nail holes in the walls that indicate moisture, water in the home. Dot began to fax lists of complaints to the dealer and to the manufacturer. At one point, the manufacturer told her she was going to change out her whole living room ceiling to get rid of a mold stain that ran from wall to wall. However, when the crew arrived, they were only going to do a partial repair, rescraping and "re-blowing" the ceiling. Her attorney (before she hired Fred Pharis) wrote two certified letters to both companies, requesting that it be fixed. They responded tepidly, with offers of more repairs, and a few cosmetic repairs that didn't really help the problem. A suit was filed by the attorney, and after it was apparent the case would go to trial, the attorney referred the case to Fred Pharis.

The attorney had the home evaluated by an expert mobile home repairman, who actually lived in a mobile home and who testified that the seen problems would cost over $11,000.00 to repair, not counting water damage to the walls that was hidden. At trial, even the defense experts agreed that there was water damage to every room in the house, including water running into an electrical socket at the rear, causing a potential electrical short! However, they sought to explain that it was all the plaintiff's fault! Because her uncle, a former mobile home factory worker and repairman, had placed a small front porch over the front door and attached it to the home. This was the explanation, despite the fact of water leaks everywhere in the home, not just the front room.

The jury was out approximately 50 minutes, and came back decreeing a rescission (undoing) of the sale, with all the plaintiffs' money back, finance charges, damages for mental anguish and inconvenience, plus attorney's fees of over $14,000.00. With legal interest the judgment was more than twice the cost of the home, including attorney's fees. Fred Pharis had made an offer to settle the case for approximately $5,000.00 less prior to trial, but, through the defendant's recalcitrance, infighting, or other cause, was only offered 1/4 the amount of the eventual judgment. An appeal is pending. One day, the plaintiffs will have only memories of the house that molded over.

mvc-053f.jpg (11906 bytes) Picture of moldy living room ceiling. House only three years old.

Sequel, posted 05/04/02 - In April, 2002, The Third Circuit Court of Appeal for the State of Louisiana affirmed the jury's rescission of the sale and award of attorney's fees. The defendants' stated basis for the appeal was the presence of "moisture" under the home that was the plaintiff's fault. The court didn't buy it, stating "we are no more convinced than the jury was" that the plaintiffs had caused any of the problems with the home. This home is going back where it came from.

The scary front axle
Charles had a construction business and bought a new Chevy HD3500 heavy duty pickup and put a customized bed on it. Unfortunately, the truck came with a bent wheel. After two attempts by Ward Chevrolet to get it right, the wheel was fixed. However, Charles immediately noticed a "wandering," "darting," or "fishtailing" of the truck that caused it to steer funny. He called the dealer, who suggested he take the vehicle to a heavy-duty alignment specialist in another town. That person test drove it and measured it and found that operating the truck was like "driving on ice" and the camber was extremely out of alignment. He had seen plenty of Chevy HD's do the same thing and told Charles that because the front axle was, unlike most cars and trucks, "solid," with no camber or castor alignment adjustment, there was really no way to repair it. Sometimes older trucks' front axle could be bent, but GM would certainly not warranty that. Charles reported back to the dealer, which took the truck in. The dealer's front-end alignment specialist drove the truck and told the service manager, and later a GM rep that to drive the truck was "scary." Charles tried to use the truck during all the "investigation" by the dealer, but finally left it at the dealer after the truck almost "put him in a ditch" twice on an out of town trip, the first time scaring him so badly he reduced his speed greatly, which didn't prevent the second incident, which was just as bad.

Charles met with the GM rep who admitted he had a problem and suggested tightening the steering gear, which Charles had been warned against because that repair should only be done to older trucks, and that repair might temporarily help the problem, but was just putting off the problem for another day. Charles finally got to the owner of the dealership who admitted he had a problem and agreed to replace the truck. However, days turned into weeks without another truck being found. Further, the dealer's employees got mad when they discovered Charles had consulted Fred Pharis. Fred had advised allowing a repair or replacement if GM would go that far, but predicted Charles would just get the run-around. And, that's just what happened.

GM's official position eventually was that, because each wheel, separately measured, was "within specs," as far as camber was concerned, there was nothing wrong with the truck, despite what the dealer's factory-certified mechanic had said!

Suit had to be filed and the truck was left at the dealership for nine months, with Charles paying the note until trial could come up. However, GM's attorney decided to make it as hard as possible on Charles and deposed everyone in sight, including his insurance agent! Because of that, Fred Pharis decided to keep his time for all the out of town trips and extra work.

At trial, General Motors' lawyer protested they hadn't had enough time to obtain an expert (despite suit having filed for several months), so the judge decided that the plaintiff would present its case and then GM's (as yet unnamed) expert would have a chance to inspect the vehicle and testify on another day. This was extremely unorthodox and not a plan Fred would have approved in any other case. However, because of the strength of the case and the fact that Charles was spending money constantly on a note and insurance for a truck he couldn't use, it was decided to proceed with the judge's plan, without protest.

At the plaintiff's part of the trial, the front-end mechanic admitted what he had told the plaintiff, that the vehicle was "scary", and stated that he was test-driving the truck on a curve on a major U.S. highway when the truck suddenly veered (that was the scary part!). Charles' construction foreman testified that while he was driving it, it darted from the right lane of travel into the middle, turning lane of the same highway the dealership's mechanic was driving on. If he had been traveling on a two lane road, he might have had a head-on collision! However, at trial, the dealership's personnel suddenly developed an previously unstated affection for the truck, stating it drove just like any other C3500 truck they had driven. Under cross-examination, the dealer's "fixed-operations manager" admitted that GM had bought back at least one, maybe two other trucks for the same problem. The GM rep admitted that, as he testified in deposition, the truck "had a mind of its own" in relation to steering down the road. However, he didn't believe the truck was any different from any other truck he had driven.

Before the next trial session, a former GM engineer, who now only "consults" with GM, drove the truck. He didn't measure the camber or castor but did take a 30 minute videotape of the cab from the passenger-side seat while he demonstrated that he could release the wheel for a few seconds without the truck making any unusual movement. Incredibly, when the video-camera was turned to show a view through the front windshield, the white stripe on the right outside of the travel lane moved under the truck, as if it had swerved! The engineer protested that the truck had not swerved. GM's attorney's severe protests of Fred's cross-examination of the expert on this point caused the judge to attach little weight to the incident, but it did appear that the truck moved off the road. The engineer dutifully testified that the truck drove "perfect", although he had not measured the wheels alignment and only drove it approximately 10 miles.

The trial judge found overwhelming evidence of a steering defect in the "solid' front axle of the truck, deciding the GM engineer was a "hired gun" and couldn't be believed. The judge was apparently so incensed at GM's callous disregard of their own dealership's certified mechanic's opinion that the truck was "scary" to drive that he awarded $15,000 in general damages (mental anguish and inconvenience) to the plaintiff, something usually unheard of in Louisiana lemon law or redhibition law. In addition, the purchase price was awarded, with all finance charges that will accrue when the judgment is satisfied, insurance costs, the cost of the customized bed, other expenses, and $13,000.00 in attorney's fees based on Fred' time sheets, submitted at the time of trial. Overall, a "solid" victory.

This manufacturer claimed all defects would show up within 1000 miles of the first use!

Yes, that’s what they testified to at trial! This was despite the fact that manufacturers routinely provide for free repairs for the first 36,000 to 70,000 miles, depending on the make. Apparently, Mazda didn’t want to pay for a new engine that failed at 61,000 miles, no matter how well the plaintiff kept it up. Here’s the rest of the story:

Bruce and his wife bought a new Mazda 626 and intended to keep it for as long as their trade-in vehicle, until 100,000 to 150,000 miles. That’s the only way you can get around the high prices of new cars nowadays, they reasoned. Bruce had been taught by his dad to change oil regularly and otherwise maintain cars right. He had successfully driven several cars to the upper mileage ranges, with little or no problems. The Mazda did have some problems with the service engine soon light coming on periodically and the car was brought back faithfully to the dealer.

The Mazda would prove to be the exception to the rule that small foreign cars are superior and will last over 100,000 miles if you treat them right. One day, the engine started sputtering when Bruce’s wife was driving it, and ran a little hot. He brought back to the dealer he bought it from. The dealer knew he had a live one! The engine was past the 50,000 miles warranty and if water had gotten into the engine, Bruce’s insurance company would pay for it! At dealer’s prices! For $5,700.00! The service department set out to convince State Farm that water had been ingested into the engine. Several State Farm adjustors came to dealer. They looked at the repair order. The service advisor had written, "water in engine" and "bent piston rod" on the repair order, even though they had not even broken the engine down. There was water in the "spark plug wells" on top of the engine, they later testified, which meant that water had to be in the engine. The adjustors were skeptical, even after one of them was pulled to the side during an inspection and told that Bruce had changed the air cleaner before he brought it in, therefore, he must be attempting a cover-up!

When Bruce found out that the dealer was accusing him of fraud, he reacted as anyone would. These crooks weren’t going to touch his car. He had it towed to a local mechanic shop, whose mechanic took apart the engine and invited State Farm’s adjustors to see it. No evidence of water damage, no evidence of lack of maintenance, just a premature failure of the engine. Bruce told Mazda and wanted them to fix the engine. Even though it wasn’t "under warranty," it shouldn’t have internal damage like that. They didn’t have to buy him the new $5,700.00 engine, just pay for the used engine the mechanic shop could put in for $3,000.00. Mazda refused. It’s "out of warranty."

This scenario took about three months to resolve. Bruce had to spend his own money and when he eventually got the Mazda back, the transmission started going out. The same private mechanic explained he had seen a lot of Mazda transmissions go out at that mileage and there was even a service bulletin on it. Having seen the handwriting on the wall, Bruce traded in the Mazda at a loss and consulted Fred Pharis.

Fred explained to Bruce that the warranties a manufacturer gives are in addition to the implied warranties of redhibition (lemon law) that protect him and other consumers. If a product fails in a substantially shorter period than it should, the court will award a reduction in the purchase price considering the cost of repairs and inconvenience, if lack of maintenance nor other cause for the failure is shown. Attorney’s fees are also awarded. Bruce decided to file suit.

Mazda’s attorney would not even talk settlement before trial. Although most attorneys realize that a trial is a serious time and expense commitment and therefore a compromise is usually appropriate, Bruce’s offer through Fred was ignored. Not even a counteroffer was made, although Bruce was more than willing to negotiate! Trial was the only alternative.

At trial, Mazda’s lawyer did what most manufacturer’s lawyers do, make the local dealers mechanics and service managers spend all day in court and take the brunt of the heat. However, this case was a little different. The mechanics who testified embellished their story about the water in the engine even more. This time, when recounting their story to the judge, they told him that there was not only a new air filter, but there was sand and leaves and other debris in the air cleaner case. They implied that Bruce had not taken the time to wipe out the air cleaner although he had changed the air filter to cover up driving the car through deep water. They even testified they had shown all this to the adjustors for State Farm Insurance. This testimony was a surprise to everyone (except Mazda’s lawyer of course). It had never been mentioned in the deposition of the dealer’s service manager that Fred had taken. Further, no notation of such appeared in State Farm’s adjustor’s claim log. The adjustors hotly denied they were shown such by the mechanics. The mechanics couldn’t or wouldn’t explain why this had been hidden until trial. They also could not explain why they would put such misleading statements as, "water in engine" and "bent piston rod" on the repair order, when they hadn’t investigated properly by tearing the engine down. In short, the mechanics lost credibility.

Bruce testified to his maintenance practices, as did his wife, and that they had certainly never driven the car through deep water. Bruce’s mechanic testified the only explanation was a mis-manufacture of an internal engine part that took a long time to show itself, considering that only one cylinder was damaged. Lack of maintenance would have shown on many engine parts. There definitely had never been external water in the engine. The mechanic had seen premature failure many times on relatively high mileage cars when he worked for a dealership as a line mechanic, service advisor, and part manager, and later when he worked for himself and supervised several mechanics at his business.

Mazda’s representative was put on the stand by his lawyer. Although he had never seen the engine, was not around during the time of the repair, and hadn’t even been consulted by the dealer at the time, he testified, to everyone’s amazement, that any defect in any engine would appear within the first 1000 miles of use, despite the engine warranty of 50,000 miles! However, he also stated that only two other causes would cause a single cylinder to be damaged in the way it had been. One was ingestion of water, the other was a "default" in its manufacture! Contradictory testimony, to be sure.

In his written reasons for judgment, the trial judge discredited the testimony of the mechanics and Mazda’s rep and obviously found the testimony of the plaintiff with regard to maintenance practices to be convincing. He stated that Bruce’s mechanic, with over 25 years in the automobile repair business was an expert witness. He further ruled that the premature failure of the engine met the definition of a redhibitory defect in the engine and awarded damages and attorney’s fees that would eventually total over $18,500.00, counting legal interest.

After trial, Mazda decided to appeal the judgment, even though most cases are affirmed on appeal and extra attorney’s fees would be awarded if the plaintiff was successful there. Mazda’s attorney even stated in a letter to Fred Pharis that "we both know" the judge was wrong!

On appeal, the court affirmed the trial judge’s findings and awarded an additional amount for attorney’s fees for work done on appeal. Mazda contended that Bruce's mechanic shouldn't have been able to testify as a mechanic. The appeal court, however, found that Bruce’s mechanic was an expert witness after more than 25 years in the automobile business as dealership service advisor, line mechanic, parts manager, and finally supervisor of mechanics in his own business. Mazda’s challenge of the mechanics qualifications were, as judges like to say, "not well taken." The court rejected the notion that mileage alone would be the determinative factor in deciding if a manufacturing defect existed.

Mazda could have settled the case for a large amount less than what the court eventually awarded, but instead threw in their lot with the unsubstantiated and fraudulent claims of the dealership mechanics who had obviously been trying to make a huge profit at Bruce’s expense. The case could have been settled. Plaintiffs who are forced to take their claims to court are often accused of being predatory, opportunistic, or just disgruntled. Could it be true that a defendant could cause such "needless litigation" by failing to negotiate in good faith?

Ford F-150 self-accelerates!
Bobby worked hard for a living at a creosote plant. He and his wife Jen bought a new Ford F-150 so his wife would be safe with their little girl, and not have to worry about breakdowns. Unfortunately, less than 2,000 miles after they bought it, Bobby, Jen, and their daughter were just starting out of an automated car wash when the engine began accelerating forward for no reason. Bobby stood on the brakes, but the engine raced and the back wheels smoked and "walked" sideways. Bobby, startled, finally had the presence of mind to cut off the engine. Cautiously, he cut it back on, and the problem was there no longer.

Not one to take chances, Bobby called the dealership and they towed it in from his work the next day. The dealer immediately "reprogrammed" the power train control module, because a Ford "service bulletin" said to. This updated "flash" of the system did not have a stated purpose. But, that didn't fix the problem. The very next Sunday, after dinner at the in-laws, Bobby was driving again and going slowly down a residential street when the engine revved again for no apparent reason. Bobby "stood" on the brakes again. This time, he cut if off quicker, and once again had it towed in to the dealer. This time, the service manager put a "VDR," or vehicle data recorder on the engine.

Less than a week later Bobby and his wife got in the truck after dinner at an Outback steakhouse. Bobby started the engine, and before he could put the transmission in gear, while still in park, the engine revved and held at 2500 rpms. Bobby pushed the button on the flight recorder, cut off the engine, and drove it slowly home. The next day the dealer towed it in again. The recorder data was never discussed after that, and couldn't be found even after suit was filed (although, please read below about how Ford finally found it!).

Fred Pharis thought this one was a no-brainer. He called Ford's attorney before filing suit and made an offer. You buy the truck back, Bobby and Jen will pay their own attorney's fees (on an hourly basis), and you guys take the truck back with about 2,800 miles on it, and we'll call it even. Ford's lawyer said he'd get back. Days, weeks went by, no answer despite further inquiries. A suit had to be filed.

Bobby and Jen sat on the truck, not using it, but making payments while Fred tried desperately to get the case set for trial. Ford's lawyer complained about the "early trial date." Ford's expert "field service engineer" (who's really not an engineer) would not cooperate and come from Mississippi for his deposition, although Fred told Ford's lawyers he would go wherever he could find him. Ford still drug their feet. Fred filed a motion to exclude the witness for Ford's failure to produce the witness. Ford finally produced the witness two weeks before trial. But, guess what? The Video Flight Recorder data could not be found, although the dealer's "master technician" volunteered as to what it said - that there were no incidents of intended acceleration. To quote his deposition - "I didn't see any high idle or wide-open throttle event, you know, that it showed." The field service engineer never did see the data.

At trial, Ford not only did not produce the data, but did not produce the field service engineer either! However, the same "master tech" who stated it didn't show any wide-open or high idle throttle event did testify. Incredibly, he testified that a "stray radio frequency" could have caused such an event. At the close of trial, Ford's lawyer, claiming he thought the field service engineer was going to show up, requested the court hold the testimony open for a deposition, which the judge granted, giving Ford one week.

One week came and went, without any communication to Fred's office about the deposition. During the second week, Ford's lawyer's paralegal filed a motion for an extension of the time. Fred left it up to the judge, who gave them another week. They still didn't produce the witness. Fred wrote a letter to the judge to please consider the case submitted for a decision since Ford could produce no more witnesses. Incredibly, Ford's lawyer suddenly announced by fax to Fred that his "persistence has paid off," and that the VDR's data printouts were now available and he was going to mail the findings to the judge.

Now, it is an elementary legal principle that document cannot be entered into evidence without its authenticity and relevancy being proved, a "foundation" laid. Data that is printed out, not vouched for, nor shown to be authentic, cannot be attached to a letter and "entered into evidence." Incredibly, that's what Ford's lawyer did, after Fred had warned him not to.

The judge, on Fred's motion, immediately ordered the printout stricken from the record. In the meantime, he ruled that a full rescission of the sale should be awarded, plus attorney's fees.

Fred asked the court to set a hearing for sanctions against Ford and the attorney. The attorney sent an associate to the hearing, fearing retribution, apparently. The court found that Ford Motor Company should be sanctioned for submitting documents in such a manner and awarded more attorney's fee. This matter is pending. Tune back in for an update...

Update: The court awarded more attorney's fees in the amount of $1,500.00 and granted plaintiffs' motion to strike the documents that were unsubstantiated, removing the documents from the record. Incredibly, Ford's attorney again submitted them, attaching them to a motion for a new trial. Fred Pharis filed another motion for sanctions. Ford Motor Company's attorney agreed to voluntarily remove the documents from the record, claiming inadvertence. The court still awarded another $750.00 in attorney's fees were awarded.

After threatening to appeal, Ford finally satisfied the judgment in full and towed the truck away. Hopefully, to be totaled and crushed or at least gutted and reworked electronically.

More trial stories later.

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