Now It’s All Up To The Judges and Juries
by John R. Hess with
additions from Mole Snoopster
To appear in March 2007
© 2007 All Rights Reserved
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DEX-COOL® Class Action lawsuit against General Motors is a definite
"go" in the state of Missouri. Similar cases have been rejected in Michigan and California. The California case, however, was refiled; it’s proceeding as two separate suits. We should learn of their acceptance or rejection
for certification by the Court in early to mid 2007.
Here’s an official announcement about the Missouri case against GM as provided by the attorneys for the plaintiffs:
“The GM class actions allege that Dex-Cool used in certain 1996-2000 model year 4.3 liter vehicle coolant systems results in sludge, and, that the
intake manifold gaskets (IMG) used in certain models and model year GM vehicles are incompatible with Dex-Cool.
A Missouri trial court certified the case as a class action to proceed on behalf of the people who purchased or leased certain specific vehicles in Missouri. Trial in Missouri is set for November 2007. Federal and state class certification motions are pending in other states as well.
Consumers and technicians are encouraged to fill out a complaint form at
Questions can also be directed to Dylan Hughes at 415.981.4800.”
Above: Compare this original,
deformed, cracked, leaking IMG with a new-design replacement immediately
Below: While the one above has none, the newer model has two metal torque
limiters (small metal buttons) on either side of the bolt hole. It
is still essentially plastic, however. (The two quarters show
thickness.) Later in the article you'll learn of a steel and rubber
gasket that's available.
As of January 9, 2006, Gutzler, et al., vs. General Motors became an official, certified case charging GM with breaching the
Magnuson-Moss Warranty Act (MMWA) and violating the Missouri Merchandising Practices Act
(MMPA). All parties involved knew it was an active case as early as August 22, 2005, but the court chose to
have the plaintiffs prepare a potential Order as it did not have the resources or time. The plaintiffs’ attorneys accomplished that by the following September 7. Remember, nothing has been decided except that there will be a case. GM “fought” that decision for quite a while; a normal
defensive process in getting cases to court.
The certified lawsuit breaks down the Class Members into two sub-classes:
1. All Class Members who purchased or leased a GM vehicle in Missouri with a 3.1, 3.4 or 3.8 liter engine that was factory-equipped with DEX-COOL, and,
2. All Class Members who purchased or leased a GM vehicle in Missouri with a 4.3 liter engine that was factory-equipped with DEX-COOL.
The sub-classes are named “Gasket Sub-Class” and “Sludge Sub-Class” respectively.
What’s important to Cool Profit$ readers is the information that has so far been generated by the
“discovery” process. Besides
plaintiff's expert witnesses' declarations, internal GM reports, particularly from their own Quality Control groups, have made their way into the somewhat public domain.
Below is how we interpret the various and revealing court papers.
Does A 5-Year, 150,000 Mile Service Life Constitute A Warranty?
An early claim by the Missouri plaintiff is that GM’s own Owner’s Manual statement, that DEX-Cool is rated for a 5-year 150K miles (100K for 1996 vehicles), represents a written warranty. While GM tried to get that summarily rejected, the court recognized it as a major issue that will affect much of the rest of the case. So by the outcome of the case, it looks like, at least in Missouri, we will all know whether such a statement constitutes a guarantee of future performance or merely a suggested service interval.
Should car owners be expected to open hot radcaps?
Another subject of interest that we should all be watching for in this case is just how much and what type of maintenance vehicle owners can be “expected” to perform. GM
denies obligation for fouled cooling systems and broken components by saying that consumers are supposed to check their cooling system level every time they take on fuel.
(GM says the major problems were caused by extended operation at low coolant levels.) The judge decided he would let the jury make that decision based on proof as presented by GM. In fact, the judge also rejected GM’s argument that the plaintiffs did not have “standing.” Standing means
“the owners must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.” Imagine if they would have asked some of your customers about that question; they would have been out before lunch, and without ever losing a night’s sleep.
Above: GM requires (expects, wants) car owners to open
this cap to check the radiator's coolant level every time they make a (short) fuel
The prime complaint against GM is that DEX factory-filled cooling systems in vehicles with 3.1, 3.4, 3.8 and 4.3 liter engines are defective because DEX fails to perform as represented. More specifically, they single out the IMG of the 3.1, 3.4 and 3.8 systems as being incompatible with DEX. Over time (but not enough) the gasket fails. The 4.3 liter system suffers from sludge buildup, which is supported by GM’s own documents. GM even tracks the failures under the category of “DEX-COOL-Sludge.”
Above: Radiator tube-blocking and
transmission cooler plate-coating sludge from a 4.3L GM V6 system.
Further, plaintiffs claim that these failures occur within the New Vehicle Warranty, a general plan that covers defective parts for three years or 36,000 miles. However, since many times GM replaced the nylon IMG with another nylon IMG, they did not abide by the warranty. Words like deception, fraud, false pretense, etc., were used.
Coolant Corrosion Task Force?
Another term that could be troubling to a jury is the “Coolant Corrosion Task Force” that GM formed and charged with investigating the original complaints. The resultant was several Technical Service Bulletins advising dealers of sludge and gasket problems. Plaintiffs specifically mentioned both sludge in the 4.3’s and IMG deterioration in a 3.4 liter engine. In this case, GM did not pay for any of the plaintiffs’ vehicles’ repairs. You might say that
these lawsuits exist because GM says it does not warrant DEX and that it is not defective.
Obviously, it's now up to the jury to decide.
Details of certifying a Class Action
The court (judge) determined these factors to have properly justified this case as a Class Action:
1.) the numbers of people affected was adequate,
2.) potential class members were indeed remotely located throughout the state,
3.) there were definitely enough questions of law, and
4.) the plaintiffs and their chosen attorneys were capable of representing the entire class. The plaintiffs have
“ripe and justiciable” (examinable) claims under MMWA and the MMPA.
The judge carefully restated the questions of the case in a form that showed he had no doubt of its certification validity. He actually used
“highly desirable” to describe the resolution that could arrive from this class. In describing GM’s requirement to have vehicle owners check the coolant level at every gas stop to enforce their warranty, he described it as
“a mixed question of fact and law that is common to the Class as a whole.” He added further that GM will have to prove that the so often, regular checking of coolant is reasonably enforceable, and that ultimately, the proof will come from GM. The plaintiffs will be responsible for proving that both the warranty and listed defects actually exist. If a jury were to find for the plaintiffs, the court states that they have
“the power to declare rights, status and other legal relations, whether or not
further relief is or could be claimed.” In addition, for what is sought by the plaintiffs, there is no need to wait, the damage is done.
The court rejected GM’s contention that the two plaintiffs with the 4.3 engines were
“not typical” because their DEX-COOL charge was replaced by green (traditional chemistry) coolant. The fact that the service was done by a GM dealership repairing the
DEX-filled system may have had something to do with that decision. As far at the plaintiff with the 3.4 liter engine whose IMG failed, the court turned down GM’s atypical assertion that there were no 3.1 or
3.4 liter members when it noted that GM itself made no
meaningful distinction between the engines and problems.
One of the plaintiff’s’ goals is to prove on behalf of all those class members in Missouri that GM’s Owners Manual is a written warranty. If accomplished, it supposedly gives affected Missouri consumers right to present their vehicle to GM for a warranty repair. Those who already paid for the said repairs can cost-effectively seek damages individually through small claims court. Additionally, GM may be required to notify all Missouri class members should they lose the case. The court reiterated that if a “written warranty” or “unlawful practice” does exist, along with any defects of DEX
(essentially, if GM loses), that such an action predominates over any individual issues.
GM: several formulations of DEX
GM argued that besides all the obvious differences between vehicles, engines, etc., that different formulations of DEX, different weather conditions, different uses for the vehicles negate any possible
“Class.” And, that variations might have been made in the manufacturing or assembly processes at the factories.
DEX degrades the nylon IMG
The court said that all of the above had no bearing on whether it had represented a written warranty or unlawful practice. They appreciated more that the plaintiffs presented evidence that DEX degrades the nylon
IMG within the class, no matter of its size or shape. Plus, GM was shown to have issued a TSB to its dealers calling for a replacement gasket made from different material. GM never disputed that DEX degrades the
nylon 6/6 IMG.
Below: If you're willing to pay a little more, here's Federal
Mogul's Fel-Pro PermaDryPlus® aluminized steel carrier gasket with
fluoroelastomer coating, torque limiters at the bolt holes, edge-molded
seals with triple-bead design. It comes as a set and includes the
valve cover gaskets.
Victor Reinz (formerly Dana's Victor) also has a line of enhanced
gaskets to handle specific V6 and V8 DEX-charged problems. It carrier is
hydrolysis-resistant plastic with HNBR sealing beads and coolant ports
(no nylon). It also includes steel load limiters and RTV diversion ports
(which the RTV from migrating to the sealing bead).
Below: We're not sure who makes the one below, or if it's still
available. With an apparent coated steel carrier and steel torque
limiters, it too looks like an upgrade from
GM's original model. If you know who makes it, and it's part number,
please let us know.
As far as the sludge case for the 4.3 liter S/T vehicles, the court found that from GM’s internal documents it knew about the condition for
“several years.” GM contended that the problems were the result of vehicles being operated too long with low coolant levels. But back to reading its internal documents, GM clearly implied that the originally installed
radiator cap and coolant overflow bottles, if they didn’t cause the corrosion, at least contributed
significantly to the sludging. Not overlooked by the court was the fact that if the cap failed and a level of coolant was isolated within the bottle, that level would
falsely tell the vehicle owner that the radiator was full.
Another plus for certification of the class was that it was financially infeasible that individuals could realistically take on GM in this manner. The expense of the expert
witnesses needed to prove the defect was specifically mentioned. If the outcome is in their favor, class members then handle their own recovery. That’s actually the way MMWA was supposed to work.
Here’s something else that may turn out to be quite important to all parties concerned with this class. In response to GM’s request that the Missouri court follow the state courts of California and Michigan, and deny class certification, this court said:
1.) decisions of other state courts don’t necessarily affect us, and
2.) the cases in the other states did not focus on the same issues.
Evidently, the attorneys of the original California case split it into two separate parts. The trial judge rejected the structure but did not rule on certification issue. (There are two separate cases now pending before a California court.) The Michigan case was deemed not helpful to Missouri because the attorneys chose to seek certification under a Michigan consumer law only, and not under MMWA.
California Gasket and Sludge Cases
Like Missouri, the California litigation was originally filed years ago (April 29, 2003). As mentioned above, the attorneys in California decided to break up the gasket and sludge issues into two stand-alone cases. It is now back in as a renewed motion before the court. Remember, neither California case has been certified; what’s pending here is whether either proceeds to trial.
(But, Missouri IS going to trial.)
The Gasket Class is easy to define. It essentially includes all Californians who bought or leased GM vehicles that fall under GM’s TSB 03-06-01-010B. The claim is for a breach of warranty because of the inherent defects that caused vehicles not to live up to their warranties. Besides concealing information about DEX’s gasket-deteriorating tendency, GM’s class members also have supposedly overpaid for their vehicles because they don’t live up to the “warranty.” In addition, they either have paid or will pay for some expensive repairs that were not theirs pay.
One has to wonder if GM should have fought so hard at a previous class certification hearing. By doing so they
apparently succeeded in shaking up the plaintiffs, and maybe a little too much. At that time, feeling pressured to perform, the plaintiffs promised to present a renewed motion that would include more and stronger evidence. To an outsider, it appears they accomplished their goal. There are detailed,
and if true, damaging declarations from qualified experts.
Expert witness: DEX-IMG incompatibility well-known
One of the documents is from a 50-year veteran of the gasket and seal industries. A member of the SAE, ACS (American Chemical Society) and ASTM, the latter of which he served on the D15 coolant committee, he states that he was aware of GM’s 3.1 liter, etc, IMG failures well before learning of the lawsuit. He goes on to say that the gasket’s poor design and incompatibility with DEX was
well-known in his industry. What brought up the discussions was GM’s adopting DEX in 1996, which of course led to widespread testing by him and peers. Those companies included heavy duty manufacturers
Caterpillar, Cummins and International. He authored two technical papers, derived from thousands of hours of testing, focusing on the effects that DEX’s corrosion inhibitors have on rubber and plastic gaskets and seals, including GM’s IMGs in question. He concludes that the two are incompatible because DEX OAT inhibitors degrade both silicone and nylon, of which these gaskets are made.
For more specifics, the IMG is described as Nylon 6,6 carrier, 33% glass filled, injection molded, single silicone sealing bead. This man felt the IMG was not a good design to begin with, and then the inhibitors start attacking the weakened carrier. Evidently, because the silicone sealing bead is not molded over onto the carrier, the carrier is in
direct contact with the DEX. Tie that in with no compression limiters,
needed to maintain gasket integrity (see photo above), to begin with and that, according to the expert, is why the gasket is prone to fail.
Expert witness: HOATs do not degrade gaskets
Interesting, this expert witness went beyond the DEX problem to clarify that different from DEX
OATs, HOATs, Hybrid Organic Acid Chemistry coolants, do not degrade silicone and nylon gaskets. The explanation is quite simple; the added silicate inhibitors of the HOAT protect the silicone polymer from the type of degradation it suffers with pure OAT (DEX). (I think I need a Chemistry refresher.)
Expert witness: IMGs should not fail
As another expert witness, the plaintiffs brought in a long time, highly experienced Certified Master
Technician who has completed 2000 hours of formal diagnosis and repair training. Along with providing diagrams of the engine components in question, he testified that IMGs normally do not fail on their own; they shouldn’t need replacing unless you’re repairing or replacing an adjacent component. Their failure rate should be zero and he’s never seen just an IMG fail. For this engine, to replace them is a 4-6 hour job and will cost $700-1000.
This may be the end of Part 3 of a 3-part story, but it certainly isn't
the end of lawsuits. Please bookmark this page because from right here,
you'll be able to link to the next stage in the litigation
End of Part 3. Check this site for follow-ups to these lawsuits.
Here are other parts:
to DEX-COOL 2007, Part 1
to DEX-COOL 2007, Part 2
© 2007 All Rights Reserved
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