Opinion

Mazerolle v. DaimlerChrysler Corp.

Court: Superior Court of Maine
Filed: Sep 20, 2002
Status: Unpublished
On the bench: Thomas D. Warren
Cited by: 0 cases
Authority: More cited than 34.1%

once manufacturer discovers a defect that is common to its automobiles, manufacturer is obligated to notify other purchasers

How later courts described this case

once manufacturer discovers a defect that is common to its automobiles, manufacturer is obligated to notify other purchasers
noting existence of “at least a substantial possibility” that actions seeking money damages are certifiable only under Rule 23(b)(3)
cited with approval in Guiggey Vv. Bombardier, 615 A.2?d 1169, 1172-73 (Me. 1992)
cited with approval in Guiggey v. Bombardier, 615 A.2d 1169, 1172-73 (Me. 1992)

Written by the judges who cited it.

The opinion

STATE OF MAINE

CUMBERLAND: $3

CLERK'S OFFICE

STATE OF MAINE SUPERIOR COURT

ess qr SEP 20 A BNI DOCKET NO, CV-01-581

ALLEN MAZEROLLE, et al.,

Plaintiffs

Vv. ORDER ON

MOTION TO DISMISS

DAIMLERCHRYSLER CORP., DONALD L- GARBRECHT

LAW LIBRARY

Defendant

SEP 30 2002

Defendant DaimlerChrysler Corp. has moved to dismiss the class action

complaint filed by plaintiffs Allen and Anne Mazerolle. DaimlerChrysler contends that

the Mazerolles’ request for relief in the nature of a judicial recall of certain Dodge,

Chrysler, and Plymouth minivans manufactured during the years 1994-2001 is barred

by the doctrine of federal preemption. DaimlerChrysler also contends that this action

should be stayed under the doctrine of primary jurisdiction to await action by the

National Highway Transportation Safety Administration (NHTSA). Finally,

DaimlerChrysler also contends that each of the Mazerolle’s individual causes of action

fails to state a claim upon which relief may be granted.

1. Federal Preemption

Included within the relief sought by the Mazerolles on behalf of themselves and

their putative nationwide class is equitable relief that would amount, in essence, to a

judicial recall of Dodge, Chrysler and Plymouth minivans manufactured between 1994

and 2001 with A604 and 41TE transmissions. See Prayer for Relief {J 2,6. Pointing out

that the U.S. Secretary of Transportation has regulatory authority to order recalls of

motor vehicles with safety defects, see, e.g., 49 U.S.C. §§ 30117-21, 30166(b),

DaimlerChrysler argues that such equitable relief is preempted by federal law and the

Supremacy Clause of the U.S. Constitution.

Three federal district courts have agreed that equitable state law claims are

preempted to the extent that relief in the nature of a judicial recall is sought. Lilly v.

Ford Motor Corp., 2002 WL 84603 (N.D. Ill. 2002) at *4-*5; In re Bridgestone/Firestone

Inc. Tires Products Liability Litigation, 153 F.Supp. 3d 935 (S.D. Ind. 2001); Namovicz v.

Cooper Tire & Rubber Co., 2001 WL 327886 (D. Md. 2001). A federal magistrate judge

in the Northern District of California and a Superior Court judge in California have

reached the opposite conclusion. Kent v. DaimlerChrysler Corp., 200 F Supp. 2d 1208

(N.D. Cal. 2002); Quocchia_v. DaimlerChrysler Motors Corp., No. 842383-2 (Cal.

Superior Court, Alameda County, Oct. 26, 2001).! None of these decisions are in any

way controlling on this court.

It is well settled that preemption exists (1) where Congress has expressly

displaced state law, (2) where Congress has evidenced an intent to occupy a given field

to the exclusion of state law, or (3) where there is a conflict between state and federal

law. E.g., Wood v. General Motors Corp., 865 F.2d 395, 401 (1st Cir. 1988), cert. denied,

494 U.S. 1065 (1990), citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300

(1988). In this instance, DaimlerChrysler relies on preemption by virtue of what it sees

as a conflict between state and federal law. In particular, DaimlerChrysler relies on the

principle that conflict preemption exists where state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” E.g.,

1 The judge in Quocchia nevertheless dismissed the request for a judicial recall on the ground

that such a recall was an inappropriate remedy, a conclusion based in part on the view that NHTSA

was better qualified than a court to institute and supervise any recall.

Freightliner v. Myrick, 514 U.S. 280, 287 (1995), quoting Hines v. Davidowitz, 312 U.S.

52, 67 (1941).

Whether preemption applies here is an extremely close question. On the one

hand, there is a presumption against preemption, based on the assumption that the

historic police powers of the states are not superseded by federal statutes unless that is

the clear and manifest intent of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947).2 Moreover, the relevant statute in this case contains an express non-

preemption provision that provides that the existence of a remedy under the statutory

sections governing recalls by NHTSA “is in addition to other rights and remedies under

other laws of the United States or a state.” 49 U.S.C. § 30103(d).

On the other hand, the Supreme Court has squarely held that the existence of an

express non-preemption provision in the governing statute does not preclude a finding

of preemption where state law results in a sufficient conflict with the federal statutory

scheme. Geier v. American Honda Motor Co., 529 U.S. 861, 869-74 (2000). In certain

circumstances (e.g., where the terms and conditions of a proposed judicial recall would

be inconsistent with the terms and conditions of a pending NHTSA recall), the potential

for conflict is manifest. In the court’s view, the requisite conflict might also exist in a

situation where a judicial recall is proposed in a case where NHTSA has decided against

recall because an alleged defect has been found to be “inconsequential to motor vehicle

2 In the court’s view, that presumption applies in this case. This case implicates traditional

state common law remedies and traditional state police powers, not areas of primarily federal concern.

Compare Buckman Co. v. Plaintiff’s Legal Committee, 531 U.S. 341, 347-48 (2001); United States v.

Locke, 529 U.S. 89, 108 (2000) (presumption against preemption does not apply in fields not

traditionally occupied by states).

safety.” 49 U.S.A. § 30118(d).3

On this record, however, there is no indication that NHTSA has taken any action

with respect to A604 or 41TE transmissions or is even reviewing the issue. The mere

possibility that NHTSA might take some action in the future that would conflict with

the relief requested by plaintiffs does not, in the court’s view, create a sufficient

potential for conflict to trigger preemption. To rule otherwise would be to suggest that

Congress intended to occupy the field and displace all state law remedies with respect

to motor vehicle recalls, and the court is not willing to adopt that suggestion, at least on

this record.

The practical and jurisprudential obstacles to any relief in the nature of a judicial

recall are formidable, see, e.g., Quocchia v. DaimlerChrysler Motors Corp., No. 842383-

2 (Cal. Supreme Court, Alameda County, Oct. 26, 2001), slip opin. at 7-11, and it may be

extremely unlikely that a Maine Superior Court would ever thrust itself into NHTSA’s

area of expertise by undertaking the kind of judicial recall proposed by plaintiffs. Cf.

Lilly v. Ford Motor Co., 2002 WL 84603 (N.D. Il. 2002) at *5. On this record, however,

the court does not conclude that the Mazerolle’s request for a judicial recall is

preempted from the outset, and DaimlerChrysler’s preemption argument is therefore

denied without prejudice.

2. Primary Jurisdiction

3 The Supreme Court has observed in another context that preemption is ordinarily not “split”

between remedies and is therefore usually found to be either applicable or inapplicable to an entire

cause of action -- not just to equitable remedies. See International Paper Co. v. Quellette, 479 U.S. 481,

499 n. 19 (1987). In this case, however, it appears clear that Congress intended to preserve any damage

remedies that might exist, and any conflict with the federal statutory scheme would only apply to

equitable relief. As a result, this is a case where it might be consistent with Congressional intent to

split equitable remedies from damage remedies for preemption purposes.

DaimlerChrysler argues that this action should be stayed to allow referral of the

issue to the NHTSA under the doctrine of primary jurisdiction. See generally American

Automobile Manufacturers Ass’n v. Massachusetts Department of Environmental

Protection, 163 F.3d 74, 80-82 (1st Cir. 1998); Ashburnham Municipal Light Plant v.

Maine Yankee Atomic Power Co., 1998 ME 270 { 8, 721 A.2d 651, 654. If the only issues

in the case concerned the Mazerolles’ request for a judicial recall or other injunctive

relief, a strong argument could be made that the court should stay its hand until

plaintiffs’ complaints with respect to the A604 and 41TE transmissions are presented to

and acted upon by NHTSA.*

However, where the remainder of the Mazerolles’ claims seek monetary

damages and where those claims are based on contract claims, warranty claims, and

claims under the Unfair Trade Practices Act -- claims that do not fall within the special

competence of NHTSA but rather within the traditional fare of the Maine courts -- a

stay of this action to allow NHTSA to exercise primary jurisdiction is not warranted.°

The remaining issues for decision involve DaimlerChrysler’s challenges to the

legal viability of each of the Mazerolles’ six causes of action.

3. Express Warranty Claims

4 Given the Mazerolles’ expressed concern for the safety of other Chrysler vehicle owners -- as

stated in a July 3, 2001 letter in which they turned down DaimlerChrysler’s apparent offer to fully

reimburse them for their transmission damage (Ex. B to complaint) -- the court would suppose that they

have already presented this issue to NHTSA.

5 Ata minimum. before the court would entertain any request for a judicial recall or similar

equitable relief of that nature, it would expect some showing either as to the presentation of the case to

NHTSA and the status of the case before NHTSA or some showing as to the reasons why no petition to

NHTSA had been made. These issues would also be relevant to the preemption issue.

According to the complaint, see [J 30-35, 129, the Chrysler vehicle purchased by

the Mazerolles had an express 3 year/36,000 mile warranty and the Mazerolles’

transmission failed after that warranty had expired. In count IV of the complaint the

Mazerolles nevertheless assert a claim for breach of express warranty. They further

allege that DaimlerChrysler was aware that the A604 or 41TE transmission was

defective and had specifically reduced its warranty in 1992 to 3 years/36,000 miles in

order to avoid paying repair costs for defective A604 or 41TE transmissions.

These allegations are insufficient to overcome the express terms of the warranty.

Indeed, plaintiffs’ breach of warranty claim fails for the same reason outlined by the

U.S. Court of Appeals for the Second Circuit in Abrahams v. Volkswagen of America,

795 F.2d 238, 240 (2d Cir. 1986):

[V]irtually all product failures discovered in automobiles

after expiration of the warranty can be attributed to a “latent

defect” that existed at the time of sale or during the term of

the warranty. All parts will wear out sooner or later and

thus have a limited effective life. Manufacturers always have

knowledge regarding the effective life of particular parts and

the likelihood of their failing within a particular period of

time. Such knowledge is easily demonstrated by the fact

that manufacturers must predict rates of failure of particular

parts in order to price warranties and thus can always be

said to “know” that many parts will fail after the warranty

period has expired. A rule that would make failure of a part

actionable based on such “knowledge” would render

meaningless time/mileage limitations in warranty coverage.

The First and Third Circuits have similarly rejected argurnents that latent defects --

defects that do not manifest themselves until after the warranty period has expired --

may provide a basis for express warranty claims. Duquesne Light Co. v. Westinghouse

Electric Corp., 66 F.3d 604, 616 (3rd Cir. 1993); Canal Electric Co. v. Westinghouse

Electric Corp., 973 F.2d 988, 992-93 (1st Cir. 1992).

4. Unconscionability/Failure of Essential Purpose

In counts II and VI of the complaint the Mazerolles allege that the 3 year /36,000

mile warranty nevertheless cannot be enforced against them because it was either

unconscionable under UCC § 2-302 or failed of its essential purpose under UCC §2-

719(2).

At least at the pleading stage, the court agrees that the Mazerolles have probably

stated a sufficient claim of unconscionability to survive a Rule 12(b)(6) motion. See

Carlson v. General Motors, 883 F.2d 287, 294-96 (4th Cir. 1989), cert. denied, 495 U.S.

904, 910 (1990) (although unconscionability is an issue of law, § 2-302 provides that

parties are entitled to offer evidence if unconscionability is adequately alleged).

The problem with the Mazerolles’ unconscionability argument is that, if

successful, it would preclude DaimlerChrysler from relying on the expiration of the

warranty. In this case, however, the pleadings establish that DaimlerChrysler has not

declined to repair the Mazerolles’ vehicle because of the expiration of the warranty but

that notwithstanding that expiration DaimlerChrysler has offered to reimburse them

for the repair of their vehicle. See complaint J 67 and Exhibit B (J uly 3, 2001 letter from

plaintiffs’ counsel). Given that DaimlerChrysler has not chosen to rely on the expiration

of its warranty vis a vis the Mazerolles, the Mazerolles cannot claim to be harmed by

that expiration date and they do not have standing to pursue their unconscionability

claim.

The court, moreover, does not agree that DaimlerChrysler is unable to rely upon

its willingness to reimburse the Mazerolles based on the principle that a defendant

should not be able to frustrate a class action by mooting the claims of the named

plaintiff. See, e.g., Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980). In this

instance DaimlerChrysler’s decision not to rely on the expiration of its express warranty

occurred before any class action certification motion had been filed and indeed before

any lawsuit had been commenced.°®

While DaimlerChrysler’s decision not to enforce the express warranty expiration

against the Mazerolles does not deprive the Mazerolles of standing to assert some of

their other claims, as discussed below, it directly affects their unconscionability claim.

To the extent that there are (as the Mazerolles contend) other similarly situated

purchasers of DaimlerChrysler vehicles as to whom DaimlerChrysler has relied upon

the warranty expiration, those purchasers may have standing to pursue an

unconscionability claim. The Mazerolles do not.

The Mazerolles’ alternative claim that the 3 year/36,000 mile express warranty

failed of its essential purpose may be disposed of more briefly. Section 2-719(2)’s

provisions with respect to remedies that “fail of their essential purpose” are addressed

to situations where otherwise “fair and reasonable” remedy provisions fail because of

novel circumstances or circumstances not contemplated by the parties. See J. White &

R. Summers, Uniform Commercial Code § 12-10(a) at 660 (4th ed. 1995); official

comment to UCC Section 2-719(2). While 2-719(2) has been extended to certain other

circumstances, the court is persuaded by the analysis in Boston Helicopter Charter, Inc.

v. Augusta Aviation Corp., 767 F.Supp. 363, 373-74 (D. Mass. 1991), that the Mazerolles’

6 The court is also not aware of any principle of law or policy requiring DaimlerChrysler to

respond to extrajudicial requests for discovery merely because the Mazerolles have designated

themselves as putative class representatives. See Exhibits B and C to complaint.

2-719(2) cause of action fails to state a claim under the circumstances of this case.”

In opposition to the motion to dismiss their express warranty claims, plaintiffs

. also raise the argument that the 3 year/36,000 mile limitation on the express warranty

was “manifestly unreasonable” under UCC § 1-204 and therefore should not be

enforced. The cases plaintiffs cite for this proposition are distinguishable. Moreover,

the court is not persuaded that § 1-204 permits time limits on express warranties to be

invalidated if a court finds them to be “unreasonable”. On its face, § 1-204 addresses the

interpretation of UCC provisions expressly specifying that actions are to be taken

within “a reasonable time.” No such provision is at issue in this case. It is doubtful that

§ 1-204 is intended to give the courts a roving commission to invalidate any contractual

time limits they find unreasonable. The appropriate remedy for a party who seeks to

avoid the durational limits of an express warranty is to demonstrate that those limits

are

unconscionable -- a claim that has already been addressed above.

5. Implied Warranty of Merchantability

Count V of the Mazerolles’ complaint alleges that DaimlerChrysler breached its

implied warranty of merchantability under UCC § 2-314.8 On this issue, the court

agrees with DaimlerChrysler that no claim for breach of implied warranty of

7 See also JOM, Inc. v. Adell Plastics, Inc. , 151 F.3d 15, 28-29 (1st Cir. 1998). While the JOM

opinion was subsequently vacated on rehearing en banc, see 193 F.3d 47 (1st Cir. 1999), the en banc

opinion did not address or cast doubt upon the original panel's discussion of the 2-719(2) issue.

8 The complaint actually refers to § 2-1212, which is the corresponding provision of the UCC

applicable to leases. See complaint, [ 160. However, the Mazerolles allege that they purchased their

vehicle. Id. J __. As a result, § 2-314 (not § 2-1212) would apply. For purposes of this case, there is no

difference between §§ 2-314 and 2-1212.

merchantability has been stated where the complaint demonstrates that the vehicle in

question functioned for more than 2 1/2 years without incident and where the failure

alleged involved one of the many constituent parts of a motor vehicle. See Suminski v.

Maine Appliance Warehouse, Inc., 602 A.2d 1173, 1175 (Me. 1992).

6. Unfair Trade Practices Act

‘Count I of the Mazerolles’ complaint alleges a violation of Maine’s Unfair Trade

Practice Act (UTPA), 5 M.R.S.A. § 207. Contrary to DaimlerChrysler’s arguments, the

allegations of the complaint state a legally cognizable claim for violation of the UTPA.

Moreover, although DaimlerChrysler argues that its offer to reimburse the Mazerolles

moots their UTPA claim as well as their unconscionability claim, the court perceives a

difference. The Mazerolles’ UTPA claim does not depend on the duration of their

warranty. Instead, it is based on alleged harm to the Mazerolles that would exist under

Maine law independent of any warranty.

Moreover, 5 M.R.S.A. § 213 (1-A) expressly deals with the situation where a

settlement offer is rejected. That provision does not require dismissal of the claim but

provides that a party will not be entitled to attorneys fees and costs if the relief

eventually awarded is not more favorable than the spurned settlement offer.

7. Wrongful Concealment of Dangerous Condition

In the court’s view, DaimlerChrysler has the better of the argument as to

whether Maine law recognizes a cause of action in tort for a seller’s alleged wrongful

concealment of a dangerous or defective condition in goods that are sold. As

DaimlerChrysler notes, the Mazerolles’ reliance on Knowles v. Jenney, 157 Me. 392, 173

A.2d 347 (1961) is misplaced because that is a bailment case. Moreover, Maine does not

permit tort recovery for a defective product's damage to itself, see Oceanside at Pine

Point Condominium Owners Assn v. Peachtree Doors, Inc., 659 A.2d 267, 270-71 (Me.

1995) (economic loss doctrine), and the court also interprets the economic loss doctrine

as applicable to strict liability claims under 14 M.RS.A. § 221. See McLaughlin v.

Denharco, Inc., 129 F.Supp. 2d 32, 36 (D. Me. 2001).

The entry shall be:

Defendant’s motion to dismiss plaintiffs’ equitable claim for a judicial recall on

preemption grounds is denied without prejudice. Defendant’s motion to stay action to

allow NHTSA to exercise primary jurisdiction is denied. Defendant’s motion to dismiss

the complaint for failure to state a claim upon which relief may be granted is denied as

to count I and granted as to counts II through VI. The clerk is directed to incorporate

this order into the docket by reference pursuant to Rule 79(a).

Dated: September __! J, 2002 — Ams (AT

Thomas D. Warren

Justice, Superior Court

Date Filed 10—25-01 Cumberland Docket No. CV-01-581

County

Action CLASS ACTION - DAMAGES

ALLEN & ANNE M. MAZEROLLE, DAIMLER CHRYSLER AG (dismissed 04-22-02)

On Behalf of themselves and DAIMLER CHRYSLER CORPORATION

“ahi others similary situated vs

Plaintiff's Attorney ‘ Defendant’s Attorney

a TODD S. HOLBROOK, ESQ. .

PETER J. RUBIN, ESQ. PETER CULLEY, ESQ. (DAIMLER CHRYSLER CORP

100 Middle Street One Monument Square

Portland, ME 04101-1100 (207) 791-1288

Portland, ME 04101

(207) 774-1200

KENNETH G. GILMAN, ESQ.

DOUGLAS M. BROOKS, ESQ.

DANIEL D'ANGELO, ESQ.

Stonehill Corporate Center

Date of 999 Broadway, Suite 500

Entry Saugus, MA 01906

2001 oe

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Ree Civil Action

En Docket No. CV-01-581

: Yo! 4 rm .. my +) ‘ . ty ya

ALLEN MAZEROLLE and ANNE

MAZEROLLE, on behalf of themselves

and all others similarly situated,

Plaintiffs

v. AMENDED ORDER

DAIMLERCHRYSLER CORP.,

Defendant

Tt has come to the court’s attention that some text was dropped from the first

paragraph of the court's May 19, 2005 order denying plaintiffs’ motion for class

certification. Accordingly, this order is being reissued with the missing text inserted:

Before the court is plaintiffs’ motion for class certification, Specifically, plaintiffs

Allen and Anne Mazerolle are seeking to certify a class consisting of all persons who

reside in Maine and who for personal, family, or household purposes own or lease a

model year 1994-2003 Dodge Caravan, Chrysler Town & Country, or Plymouth

Voyager with a DaimlerChrysler A604/41TE transmission (except for persons with

claims for personal injuries). See Motion for Class Certification filed December 5, 2003,

at p. 1.

In their original complaint, filed October 25, 2001, the Mazerolles brought suit on

their own behalf and on behalf of a proposed nationwide class of all persons owning or

leasing DaimlerChrysler minivans for model years 1994-2001 with A604/41TE

transmissions. Complaint 959. Their complaint alleged that DaimlerChrysler minivans

from those model years had defective transmissions which DaimlerChrysler knew were

likely to fail after the express three-year /36,000 mile warranty period had expired. Eg,

id. 79 1, 44. On behalf of themselves and all others similarly situated, the Mazerolles

alleged (1) that DaimlerChrysler had violated the Maine Unfair Trade Practices Act

(UTPA) and other state unfair and deceptive trade practice statutes (Count 1); (2) that

DaimlerChrysler’s express three year/36,000 mile warranty was unconscionable (Count

II); (3) that DaimlerChrysler had wrongfully concealed a dangerous condition (Count

Ill); (4) that DaimlerChrysler had breached its express warranty (Count IV); (5) that

DaimlerChrysler had breached implied warranties under the UCC (Count V); and (6)

that DaimlerChrysler’s three year/36,000 mile warranty failed of its essential purpose

(Count VI).

The relief sought in the complaint by the Mazerolles on behalf of themselves and

their putative class includes restitution for any repair costs already paid and an order

requiring DaimlerChrysler to fix or repair the latent transmission defects in any vehicle

of a class member that has not already been repaired. Complaint, Prayer for Relief, [4]

2,4. The latter form of relief would amount, in effect, to a judicial recall of all Dodge,

Chrysler, and Plymouth minivans manufactured between 1994 and 2001.

Instead of answering, DaimlerChrysler filed a motion to dismiss and after

briefing, the court granted that motion except as to plaintiffs’ UTPA claims. See Order

on Motion to Dismiss filed September 20, 2002. Thereafter, on December 23, 2002, the

court issued an order initially limiting discovery to factual issues pertinent to class

certification and directing counsel to submit a proposed scheduling order. That order

was duly submitted and signed on January 21, 2003. It provided that discovery would

take place during a seven and one-half month period followed by the briefing of the

class certification motion. The discovery deadline was extended once by agreement, see

order filed July 29, 2003, and was extended again as a result of a discovery dispute as to

whether DaimlerChrysler should be required to produce nationwide data relating to

transmission failures. See Conference Record filed September 17, 2003. By that time all

parties were assuming that if a class were certified, it would be limited to Maine

residents. See Order filed October 27, 2003.

Plaintiffs filed their motion for class certification on December 5, 2003. On

March 18, 2004, defendant filed its opposition to the motion for class certification and

on April 20, 2004, it filed a motion for summary judgment. On June 7, 2004, plaintiffs

filed a reply memorandum on the motion for class certification and an opposition to the

motion for summary judgment. Final briefing on both motions was completed on June

21, 2004.

This order will address the class certification motion. On a class certification

motion the court must not evaluate or decide the merits of the plaintiffs’ claims. See

Bisen_v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). However, in order to

determine whether a class should be certified, the court must fully understand the

claims, defenses, relevant facts, and applicable substantive law in order to make a

meaningful analysis of the certification issues. Castano v. American Tobacco Co., 84

F.3d 734, 744 (5th Cir. 1996); Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.

1992). Accordingly, the court has reviewed the extensive materials presented by the

parties on the summary judgment motion in this case in order to determine whether the

issues in this case are appropriate for class treatment.

Although the Law Court has not itself addressed the requirements of Rule 23, the

Superior Court has comprehensively addressed those requirements in two cases,

Karoisky vy. Abbott Laboratories, 1997 Me. Super. LEXIS 316, Docket No. CV-95-1009

(Me. Superior Ct., Cumberland Cty., October 15, 1997) (Saufley, J.), and Millett_v.

Atlantic Richfield Co., 2000 Me. Super. LEXIS 39, Docket No. CV-98-555 (Me. Superior

Ct, Cumberland Cty., March 2, 2000) (Cole, J.). As noted in Karofsky, in deciding a

class certification motion, the court must “walk the fine line between a rigorous analysis

of the basic claims and method of proof presented by the plaintiffs and the

inappropriate delving into an assessment of the merits of those claims.” 1997 Me.

Super. LEXIS 316 at * 12.

Ultimately the court must be persuaded that plaintiffs have met their burden of

showing by a preponderance of the evidence that the proposed class meets all the

requirements of Rule 23(a) and at least one of the subsections of Rule 23(b). Id. The

decision on class certification is committed to the broad discretion of the trial court,

which is in the best position to determine the relevant factual issues, to appreciate the

consequences of alternative methods of resolving the factual and legal issues, and to

select the most efficient method for resolution. Millett, 2000 Me. Super. LEXIS 39 at * 17,

citing, inter alia, Castano, 84 F.3d at 740, and Boughton v. Cotter Corp., 65 F.3d 823, 826

(10th Cir. 1995).

A. GENERAL STANDARDS FOR CLASS CERTIFICATION

Pursuant to M.R. Civ. P. 23(a), a class may be certified when the plaintiffs

demonstrate that:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

If the court is satisfied that all four of the Rule 23(a) requirements have been met, it

must go on to determine whether the plaintiffs have also demonstrated that the case

falls into at least one of the categories set forth in Rule 23(b) as appropriate for class

treatment. Plaintiffs assert that this case meets both the requirements of Rule 23(b){2)

and Rule 23(b)(3).

DaimlerChrysler does not contest that this case meets the requirements of Rule

23(a}(1) and 23(a}(3)-—-the “numerosity” and “typicality” requirements. However, it

does not agree that this case meets the requirements of Rule 23(a)(2) and 23fa)(4).

Specifically, with respect to Rule 23(a)(2), DaimlerChrysler argues that because the

DaimlerChrysler minivan transmissions were substantially modified twice during the

period from 1994-2001, there are no questions of fact common to the putative class. It

also argues that because the law of other states would have to be applied if persons

residing in Maine bought their DaimlerChrysler minivans out of state, there are no

common questions of law.

The court concludes that this case presents common questions of fact and law

sufficient to meet the requirement of Rule 23(a)(2).! Regardless of the modifications that

were made to the DaimlerChrysler minivan transmissions before the 1998 model year

and again before the 2000 model year, plaintiffs are alleging that DaimlerChrysler

minivan transmissions from the 1994-2001 model years have all experienced inordinate

and identical modes of failure and that the marketing of minivans during those model

years violated the UPTA. The test for commonality under Rule 23(a)(2) is not

demanding and does not require a finding that every question of fact is common to

every member of the class. See Millett, 2000 Me. Super. LEXIS 39 at *22-23.

In addition, the court cannot take seriously DaimlerChrysler’s contention that the

possibility that some putative class members purchased their minivans outside Maine

deprives this case of common questions of law. The court agrees that if a nationwide

class were being proposed, the task of discovering, keeping track of, and applying the

laws of fifty separate states would raise major questions as to commonality and

manageability. Now that plaintiffs have limited their proposed class to residents of

Maine, however, those difficulties no longer exist. If DaimlerChrysler is correct that the

location of the purchase would determine whether or not the UTPA applies—which

plaintiffs dispute—it would be a simple matter to amend the class definition to exclude

out-of-state purchasers.

DaimlerChrysler’s objection as to adequacy of representation under Rule 23(a)(4)

is also unavailing. DaimlerChrysler suggests that conflicts of interest may arise because

three versions of the minivan transmission are at issue (one for model years 1994-1997,

one for model years 1998-1999, and one for model years 2000-2001). DaimlerChrysler

has failed, however, to explain how different versions of the transmission might lead to

a potential conflict of interest, let alone demonstrate that an actual conflict exists.

Although plaintiffs have surmounted the first hurdle of Rule 23(a), a class cannot

be certified unless they also meet the requirements of either Rule 23(b)(2) or Rule

23(b)(3).

' Whether the common questions of fact predominate over questions affecting

individual class members under Rule 23(b)(3) will be considered in greater detail below.

B. RULE 23(b)(2)

Rule 23(b)(2) permits a class to be certified if the requirements of Rule 23(a) are

met and if “the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole.”

Accepting as true for purposes of the class certification motion plaintiffs’

allegations that DaimlerChrysler was aware of and concealed the existence of defects in

its minivan transmissions for model years 1994-2001, it is certainly arguable that

DaimlerChrysler acted on grounds generally applicable to the class. Moreover,

injunctive relief is an available remedy in a suit brought by consumers under the UTPA.

See 5 M.RS.A. § 213(1) (2002). However, certification under Rule 23(b)(2) is not

appropriate where the appropriate final relief relates predominately to money damages.

See Advisory Committee Note to FED. R. Civ. P. 23(b)(2), 39 F.R.D. at 102; Allison v.

Citgo Petroleum Corp. 151 F.3d 402, 411 (5th Cir. 1998); Millett, 2000 Me. Super. LEXIS

39 at *76. See also Ticor Title Ins. Co. v. Brown, 511 US. 117, 121 (1994) (noting

existence of “at least a substantial possibility” that actions seeking money damages are

certifiable only under Rule 23(b){3)).

Thus, to the extent that Rule 23(b)(2) classes are not limited to requests for

injunctive or declaratory relief, any claim for money damages must be merely incidental

to the claim for injunctive relief. McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545,

553 (Sth Cir. 2003); Allison, 151 F.3d at 415; Smith v. Brown & Williamson Tobacco

Corp., 174 F.R.D. 90, 99-100 (W.D. Mo. 1997); Millett, 2000 Me. Super. LEXIS 39 at *76.

In this case, plaintiffs are seeking an order (1) requiring DaimlerChrysler to fix or repair

the latent transmission defect in all DaimlerChrysler vehicles that have not been

repaired “at no cost to class members”; (2) declaring DaimlerChrysler to be financially

responsible for all sums required to be paid for repair of their vehicles; (3) requiring

DaimlerChrysler to give notice to all class members; (4) permanently enjoining

DaimlerChrysler from pressing the practices challenged in the complaint; and (5)

compensatory damages. Complaint, Prayer for Relief, 1 2, 4, 6-8.’

With the exception for the prayer for compensatory damages, all of the foregoing

requests are designed to sound equitable in nature. In reality, however, the relief

sought in this action is monetary. ‘Thus, in addition to the compensatory damages for

class members who have already incurred repair costs, plaintiffs are seeking to make

DaimlerChrysler pay for all future repair costs and pay to repair or replace all the

allegedly defective transmissions that have not yet been repaired. In the context of class

actions, requests for relief seeking compensation for future expenses anticipated to be

incurred because of a defendant's alleged wrongdoing constitute claims for monetary,

not injunctive, relief. See Millett, 2000 Me. Super. LEXIS 39 at * 79-80, citing Thomas v.

PAG Bearings Corp., Inc. 846 F. Supp. 1400, 1404 (W.D. Mo. 1994)).

Even where a plaintiff has demonstrated “ingenuity” in fashioning proposed

remedies that appear to be injunctive in nature, class actions may not be maintained

under Rule 23(b)(2) where the claims are essentially monetary in nature. In re School

Asbestos Litigation, 789 F.2d 996, 1008 (3d Cir. 1986).2. What governs are “the realities

* Another remedy asked for in the complaint, disgorgement of all profits received from

the sale of the minivans in question, Prayer for Relief, 7 5, is not a remedy available under the

Maine Unfair Trade Practices Act (UTPA). In their complaint, plaintiffs also sought reformation

of DaimlerChrysler’s three year/36,000 mile warranty, id. { 12, but that relief, to the extent it

might ever have been available, has been mooted by the dismissal of plaintiffs’ warranty claims.

> By way of example, plaintiffs have fashioned their claim for future repair costs as a

request for an order directing DaimlerChrysler to pay for future repairs. Assuming that

plaintiffs can establish that it is probable that class members will incur future repair expenses,

however, such future expenses would be a potential component of a monetary damage award.

DaimlerChrysler argues that persons who have not yet incurred repair costs are not properly

included in the plaintiff class because they have not yet suffered any “loss of money or

of the litigation.” Id.; Christiana Mortgage Corp, v. Delaware Mortgage Bankers Ass’n,

136 F.R.D. 372, 381 (D. Del. 1991); Millett, 2000 Me. Super. LEXIS 39 at * 81. In this case

the realities of the litigation are that plaintiffs’ various requests for injunctive relief are

incidental to their monetary claims, not the other way around.

Instances in which monetary relief is incidental to injunctive relief for purposes

of Rule 23(b}(2) involve cases in which monetary damages can be awarded as part of a

uniform group remedy without the necessity of additional individual determinations.

see McManus, 320 F.3d at 553-54; Allison, 151 F.3d at 41415. Here, additional

individual determinations would be necessary to determine what repair costs a class

member had already incurred in the past, to what extent those costs were attributable to

defective transmissions, and what repair costs would be probable in the future or

would be incurred as time went on. This is not a case where the monetary relief sought

is relief to which class members would “automatically” be entitled upon a finding of

liability. Allison, 151 F.3d at 415.

Accordingly, this case is not eligible for certification under Rule 23(b)(2, and the

question whether a class should be certified depends on whether this case falls within

the ambit of Rule 23(b)(3).

property” within the reach of 5 M.R.S.A. § 213(1). The Mazerolles counter that class plaintiffs

who have not incurred repair costs would still be entitled to an amount equalling the difference

between the value of a minivan as purchased with a latent transmission defect and the value of

a minivan without such a defect. See Plaintiffs’ Memorandum in Reply to Defendant's

Opposition to Class Certification, filed June 7, 2004, at 12-13. For present purposes, the court

does not have to decide whether the Mazerolles are correct. If they are, a claim for the

difference between the value of what they received and the value of what they bargained for

wouid still translate into a monetary claim. See McManus, 320 F.3d at 553-54.

Cc. RULE 23(b)(3)—PREDOMINANCE

Rule 23(b)(3) permits class certification (1) where the questions of law or fact

common to the class “predominate” over any questions affecting any individual

members, and (2) where the court finds that a class action is superior to other available

methods for the fair and efficient adjudication of the controversy. The Advisory

Committee Notes indicate that Rule 23(b)(3) was intended for “those cases in which a

class action would achieve economies of time, effort, and expense, and promote

uniformity of decisions as to persons similarly situated, without sacrificing procedural

fairness or bringing about undesirable results.” Advisory Committee Note, 39 F.R.D. at

102-03.

The issue of whether common issues “predominate” is related to the

commonality requirement of Rule 23(a)(2) discussed above. The predominance request,

however, is “far more demanding” than the commonality request. Amchem Prods., Inc.

y. Windsor, 521 U.S. 591, 623-24 (1997). “To predominate, ‘it is not enough that the

claims arise out of a common nucleus of operative fact. Instead, the common questions

must be central to all the claims. ...’” Millett, 2000 Me. Super. LEXIS 39 at *38, quoting

Puerto Rico v. M/V Emily S., 158 F.R.D. 9, 15 (D.P.R. 1994); Mattoon v. City of Pittsfield,

128 F.R.D. 17, 20 (D. Mass. 1989). As the court noted in Millett, cases involving a single

event, such as an airplane crash, have more frequently been found suitable for class

certification under Rule 23(b)(3) than product liability cases, where there is no single

event on which liability is premised and no single proximate cause that applies equally

to each member of the class. 2000 Me. Super. LEXIS 39 at *41-42, citing Sterling v.

Velsicol Chem. Corp., 855 F.2d 1188, 1197 n.20; In re Northern District of California

Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847, 853 (9th Cir. 1982), cert.

denied, 459 U.S. 1171 (1983). In the court’s view, this case is closer to a products liability

case than a mass disaster case. This does not preclude class certification but indicates

that plaintiffs’ burden to show that common issues predominate will be more difficult

to meet.

Implicit in the predominance issue is whether the adjudication of common issues

will help achieve judicial economy, Millett, 2000 Me. Super. LEXIS 39 at *38-39, quoting

Valentino v. Carter-Wallace, Inc. 97 F.3d 1227, 1234 (9th Cir. 1996), or whether

individual issues will so overwhelm the common issues as to bog down the proceeding

and create judicial diseconomy. See Smith, 174 F.R.D. at 94.

In this case DaimlerChrysler argues that common issues do not predominate

because individualized determinations will be necessary with respect to a number of

issues. First, DaimlerChrysler points out that three different versions of the A604/41TE

transmission were used for model years 1994-2001. See Alfonso Dep. 162-63, 167-69.

Although this is not disputed by plaintiffs, they allege that despite the modifications to

the transmission, DaimlerChrysler minivan transmissions continued to sustain an

inordinate rate of failures and that the modes of failure were identical to those

experienced earlier. See, e.g., Plaintiffs’ Reply Memorandum on Class Certification,

filed June 7, 2004, at 1-2, 5; Exhibit 1 to Gilman Declaration dated December 4, 2003;

Exhibit 1 to Rubin Declaration dated June 7, 2004;° Exhibit 3 to Rubin Declaration dated

June 7, 2004; Exhibit 7 to Rubin Declaration dated June 7, 2004.

* Another potential problem in the event that a class is certified despite the existence of

significant individual issues is that the proceedings will focus on the common issues and the

individual issues will be given short shift. This is presumably the reason that the Advisory

Committee Note speaks of the need not to sacrifice procedural fairness in certifying a class

under Rule 23(b)(3).

* By letter dated May 12, 2005 plaintiffs’ counsel has confirmed that Exhibit 1 to the June

7, 2004 Rubin Declaration (filed under seal) is the same exhibit submitted as Exhibit 3 to the

December 4, 2003 Gilman Declaration. The Gilman and Rubin declarations are unsworn and do

not state that they are submitted “under penalty of perjury” under 28 US.C. § 1746. If any

That three different versions of the A604/41TE transmission are involved

definitely introduces multiple issues into the case. The testimony of DaimlerChrysler’s

design engineer in charge of the 1998 model year modification gives DaimlerChrysler a

basis to argue that no defects existed in its minivan transmission at any time, that with

respect to the 1996 model year there were some manufacturing glitches during the

period from August 1995 to January 1996, that major design changes were made to

improve the transmission before the 1998 model year, and that further changes were

made before the 2000 model year. See Alfonso Dep. 27-28, 44-51, 119-20, 154-58, 162-64,

166-69; Keeler Affidavit J 17.

On a motion for class certification, itis not the court's role to consider the merits

of these issues. However, it concludes that the existence of these issues will result in a

number of factual determinations potentially affecting different model years. These

include:

(1) whether the transmission installed for model years 1994-1997

possessed a latent defect;

(2) whether the modified transmission installed for model years 1998-

1999 possessed any common defect with the 1994-1997

transmission or whether it possessed any independent defect; and

(3) whether the further modified transmission installed for model

years 2000-2001 possessed any common defect with its

predecessors or any independent defect.

Moreover, because this is not a product liability case but a claim under the UTPA,

liability depends not only on the existence of a defect but also on proof that

DaimlerChrysler engaged in some deceptive practices in connection therewith. For

disputed facts were set forth in the declarations, therefore, they would not be entitled to any

weight. To the extent that those declarations merely append other materials that could have

been annexed as exhibits to plaintiffs’ memoranda and whose authenticity is not questioned by

defendant, the declarations do not need to be sworn.

purposes of the UTPA, the exact contours of an “unfair or deceptive” act have not been

defined, but the case law suggests that such acts equate to actions such as withholding

material information, unsubstantiated product claims, high pressure sales tactics, or

depriving consumers of post-purchase remedies. See American Financial Services

Ass’n v. FIC, 767 F.2d 957, 979 (D.C. Cir. 1985) (cited with approval in Guiggey Vv.

Bombardier, 615 A.2?d 1169, 1172-73 (Me. 1992)). The mere existence of defects, absent

evidence of deception or misrepresentation, is not sufficient to maintain a claim under

the UTPA. E.g., Inniss v. Methot Buick-Opel, Inc., 506 A.2d 212, 216 (Me. 1986).

For present purposes, this means that for each version of the transmission, if

defects existed, there is also the question of whether DaimlerChrysler was aware of

those defects and engaged in any deceptive trade practices with respect thereto. For

instance, DaimlerChrysler has tendered the argument that it believed the modifications

for the 1998 model year solved any existing transmission problems. See

DaimlerChrysler’s Statement of Material Facts in Support of Motion for Summary

Judgment, filed April 20, 2004, [{ 7-28.

Whether or not this is correct as a factual matter, it nevertheless demonstrates

that the trial of this case would require separate consideration of each version of the

transmission installed in DaimlerChrysler minivans from 1994 through 2001, with

specific reference to: (1) the existence of any defects; (2) DaimlerChrysler’s knowledge

of any defects; and (3) any deceptive practices with respect thereto.

This complicates the case but does necessarily not compel a finding that

individual issues predominate. Arguably, these issues could be dealt with through the

creation of subclasses for each version of the transmission in question. A similar

solution, however, is not possible with respect to a second issue on which

DaimlerChrysler argues that common issues do not predominate. This is the issue of

causation. On this issue, the court ultimately concludes that certification under Rule

23(b)(3) fails because the individual issues presented on the issue of causation will

swamp any common issues presented in this case.

As noted above, plaintiffs’ theory is that DaimlerChrysler minivan transmissions

fail at an inordinately high rate because of defects of which DaimlerChrysler was aware

but did not disclose. DaimlerChrysler contends that transmissions can fail for reasons

unrelated to any defects—if minivans are subjected to particular stress in the manner in

which they are driven, if they are subjected to improper maintenance, or if, for instance,

they are run long enough at high throttle with one wheel slipping on ice. Alfonso

Affidavit dated February 26, 2004, J 11; Alfonso Affidavit dated March 17, 2004, {{ 11-

13; Keefer Deposition 70-71.

If a class member experienced transmission failure for reasons unrelated to any

manufacturing or design defect, there would be no liability under the UTPA as to that

class member regardless of whether DaimlerChrysler had failed to disclose such

defects. See VanVoorhees v. Dodge, 679 A.2d 1077, 1082 (Me. 1996) (claimant under the

UTPA must prove not only a violation of the UTPA but that the damages sought are

attributable to the UTPA violation). This issue acquires added significance because it is

evident from the motion for summary judgment that plaintiffs have not identified the

specific defect that they allege causes transmission failure but are instead arguing that

in the complete absence of any evidence that the product was misused, or

of any other cause for the damage, plaintiffs are not required to identify

the specific defect that caused the damage; circumstantial evidence that

there is a defect is sufficient.

Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment, filed June 7,

2004, at 7. Accord, Plaintiffs’ Reply Memorandum for Class Certification, filed June 7,

2004, at 6. This amounts, as plaintiffs acknowledge, to a theory that is akin to res ipsa

loguitur. Plaintiffs’ Memorandum in Opposition to Motton for Summary Judgment at 8

ni.

In this connection, plaintiffs chose not to offer any expert testimony at the class

certification stage even though the January 21, 2003 Scheduling Order afforded them

that possibility. While it is correct, as plaintiffs argue, that they are not obliged to come

forward at the class certification stage with all the evidence that they would seek to

introduce at trial, see Plaintiffs’ Reply Memorandum on Class Certification, filed June 7,

2004 at 5, plaintiffs have also failed to offer any expert testimony in response to

DaimlerChrysler’s motion for summary judgment.®

The parties disagree as to whether and to what extent a plaintiff suing in Maine

may rely on evidence of a malfunction to prove that a product was defective. This is an

issue that will require analysis in connection with the motion for summary judgment.

For present purposes, it does not matter whether a finder-of-fact may infer the existence

of a defect upon a showing that the product did not perform as intended, see

McDermott v. City of New York, 406 N.E.2d 460, 464-65 (N.Y. 1980), or whether the

plaintiffs, in addition to showing that a malfunction occurred, must show that the

product was not subjected to abnormal use and that there were no reasonable

secondary causes for the malfunction. See Anderson v. Chrysler Corp., 403 S.E.2d 189,

® In their Reply Memorandum on Class Certification, plaintiffs make the curious

statement that it would have been “risky and ill-advised” to subject their experts to depositions

at the class certification stage “only to have [DaimlerChrysler] come forward with new evidence

during merits discovery.” Id. However, plaintiffs have the burden of proof and therefore are

required to provide their proposed expert opinions to DaimlerChrysler before DaimlerChrysler

would be required to provide any responding expert testimony. In addition, once

DaimlerChrysler challenged the merits of plaintiffs’ case by filing a motion for summary

judgment and plaintiffs still did not offer any expert testimony, the court has no alternative, in

considering whether common issues predominate under Rule 23(b)(3), except to conclude that

plaintiffs are relying on their res ipsa theory.

193-94 (W.Va. 1991).’ In the former case, even if plaintiffs need not exclude alternative

causes, DaimlerChrysler would have the right to demonstrate that alternative causes

exist. Thus, for every member of the class who has experienced a transmission failure,

there would have to be an individualized inquiry as to whether there was an alternative

explanation for the failure.

The existence of a defect is one of the fundamental liability issues in this case.

For instance, unless there are a sufficient number of otherwise unexplainable

transmission failures, it would be difficult, if not impossible, to draw the inference that

members of the proposed class who have not experienced transmission failures

nevertheless have a latent transmission defect. Even before reaching the issue of

whether DaimlerChrysler engaged in any deceptive practices, therefore, this case

fragments into a highly individualized inquiry into whether the cause of each

transmission failure has an alternative explanation, an inquiry that would require

individualized consideration of such issues as driving habits, repair and maintenance,

and the specific circumstances of each transmission failure. Under these circumstances,

the court concludes that common issues do not predominate in this case.

DaimlerChrysler also argues that individual issues do not predominate because

there would need to be a separate inquiry with respect to damages for each member of

” In Walker v. General Eletric Co., 968 F.2d 116 (1st Cir. 1992), the First Circuit referred

to cases holding that a plaintiff could either demonstrate a specific defect or could show “an

unexplained occurrence and [eliminate] all reasonable explanations for the occurrence other

than the existence of a defect.” 968 F.2d at 120, quoting Ocean Barge Transport Co. v. Hess Oil

Virgin Islands Corp,, 726 F.2d 121, 124 (8d Cir. 1984). In Suminski v. Maine Appliance

Warehouse, Inc., 602 A.2d 1173, 1175 (Me. 1992}, the Law Court did not expressly rule on this

issue but cited with apparent approval to A.A.A. Exteriors, Inc. v. Don Mahurin Chevrolet &

Oldsmobile, Inc., 429 N.E.2d 975 (Ind. App. 1981). Based on A.A.A. Exteriors, the court believes

that the Law Court would adopt the principle that the existence of a defect may be inferred

from a malfunction only in the absence of both abnormal use and reasonable secondary causes.

See 429 N.E.2d at 978.

the class. Plaintiffs respond that if liability can be reached on a class basis, damages

issues could, if appropriate, be left for separate adjudication. Plaintiffs’ Reply

Memorandum on Class Certification, filed June 7, 2004, at 9-11. Because the court

concludes that common issues do not predominate even on the question of liability,

particularly on the fundamental issue of whether there is a defect, it need not reach this

issue.

The parties also disagree as to whether reliance must be proven under the UTPA.

If reliance must be proven under the UTPA, there is substantial authority for the

proposition that “class certification is inappropriate in cases where individualized proof

of reliance is required.” Millett, 2000 Me. Super. LEXIS 39 at *44, citing Castano, 84 F.3d

at 745; Thompson v. American Tobacco Co,, 189 F.R.D. 544, 552 (D. Minn. 1999). While

reliance is not strictly an element of a cause of action under the UTPA, a claimant under

the UTPA must demonstrate that he or she was injured by the deceptive practice. E.g,

Tungate v. MacLean-Stevens Studios, Inc., 1998 ME 162, 7 13, 714 A.2d 792, 798 (“the

plain language of the statute denies relief for plaintiffs who do not demonstrate injury

from the alleged deceptive or unfair practice”). If, for example, a member of the class

was well aware of the potential for transmission failures in DaimlerChrysler minivans

and nevertheless purchased such a van, that class member would be ineligible for relief.

See In re Ford Motor Co. Vehicle Paint Litigation, 182 F.R.D. 214, 221, (E.D. La. 1998).

The court is not necessarily persuaded that there is a large number of proposed class

members who fall into this category but there may well be some,’ and issues with

* For instance, plaintiffs themselves allege that warnings were raised about

DaimlerChrysler transmissions by Consumer Reports as early as 1991. Complaint { 41.

Moreover, based on the record in this case, there are a number of persons who were apparently

aware of the potential for transmission failure who nevertheless subsequently purchased a

DaimierChrysler minivan. Of the approximately thirty affidavits submitted by piaintiffs in

opposition to the motion for summary judgment, five recite that they experienced transmission

respect to specific class members’ knowledge as to the alleged propensity of

DaimlerChrysler minivans to experience transmission failures contributes to the

conclusion that common issues do not predominate in this case.

D. RULE 23(b)(3)—SUPERIORITY AND MANAGEABILITY

The second part of the inquiry under Rule 23(b)(3) is whether a class action “is

superior to other available methods for the fair and efficient adjudication of the

controversy.”” In this case the parties have focused on whether a class action would be

manageable, whether the National Highway Traffic Safety Administration (NHTSA)

would provide a superior method to address the merits of plaintiffs’ transmission

defect claims, and whether the availability of attorney fees for prevailing claimants

under the UTPA militates against certification of a class action in this case.

Because the court has already concluded that this case fails the predominance

test under Rule 23(b)(3), it need not reach the supertority and manageability issues and

will discuss those issues only briefly. On the paramount issue of manageability, the

court concludes that, just as in Millett,

failures with respect to DaimlerChrysler minivans from model years, 1992, 1993, 1994, or 1995

and that they nevertheless purchased DaimlerChrysler minivans in subsequent model years.

See Affidavit of Craig Warren, sworn to March 29, 2004, {{ 2, 5, 6; Affidavit of Jeffrey Sennett,

sworn to March 18, 2004, {¥ 2, 4; Affidavit of Mary Anne Costanzer, sworn to March 20, 2004,

1@ 2, 3; Affidavit of David Unger, sworn to March 26, 2004, {¥ 2, 3, 7; Affidavit of James Keene,

sworn to March 22, 2004, TT 2, 3, 4,5, 7. At least one of these persons alleges, however, that he

was affirmatively misled by DaimlerChrysler that the previous transmission problems had been

resolved. Second Affidavit of David Unger, sworn to June 3, 2004. What specific inquiries, if

any, were made and what responses, if any, were given to purchasers who had experienced

transmission failures or who were aware of transmission failures in prior model years would be

the subject of proof specific to those individuals rather than proof common to the class as a

whole.

* In this connection, the Rule states that pertinent issues include the interest of class

members in controlling separate actions, the nature of any related litigation that has already

commenced, the desirability of concentrating claims in one forum, and the difficulties likely to

be encountered in the management of a class action. Rule 23(b)(3)(A)-(D).

the most persuasive reason why the proposed class action is not the

superior method for adjudication of this controversy is the same reason

why this action cannot meet the predominance requirement. There are

too many individualized issues which cannot be addressed on a class-

wide basis.

2000 Me. Super. LEXIS 39 at *67.

Moreover, the statutory provision for attorney fees to a successful litigant under

the UTPA, see 5 M.R.S.A. § 213(2), is another factor that weighs against certification of a

class in this case. See Castano, 84 F.3d at 748. One consideration in deciding whether a

class action is a superior method for resolving a controversy is whether an alternative

method exists. See Millett, 2000 Me. Super. LEXIS 39 at *66, 69-71. In this respect the

history of this case is instructive. Even though the named plaintiffs’ vehicle no longer

fell within the three year/36,000 mile warranty period, DaimlerChrysler offered to pay

plaintiffs’ transmission repairs once they received a letter from plaintiffs’ attorney.

Whether DaimlerChrysler did this to engender goodwill or (what is perhaps more

likely) for economic reasons — because it recognized that, once a lawyer for plaintiffs

was involved, it would ultimately save money if plaintiffs would accept full payment of

their repair costs —- what is relevant in this connection is that with the advent of

counsel, DaimlerChrysler attempted to resolve the case via full payment of plaintiffs’

repair costs.

Plaintiffs argue that even with the availability of attorney fees, it will not be

economically feasible for most individual class plaintiffs to pursue relief against

DaimlerChrysler if they experience transmission failure. Because the motion for class

certification has already been found to fail Rule 23(b)(3)’s predominance requirement,

the court does not have to resolve this issue. However, even if the predominance

requirement were met, the court is not necessarily convinced that a class action is the

only feasible avenue for redress in this case.

Finally, the court has previously considered the availability of an administrative

remedy through NHTSA, see September 20, 2002, Order at 1-5, and has little to add on

that subject. To the extent that safety concerns are involved, NHTSA provides a better

avenue of relief. However, given that the safety issues involved here have not been

found sufficiently serious to command NHTSA’s attention to date, and given that

plaintiffs are asserting monetary claims independent of any safety issues that may exist

(and indeed have excluded any personal injury claimants from the proposed class), the

court cannot conclude that NHTSA offers a superior avenue for resolving plaintiffs’

monetary claims."

The entry shall be:

Plaintiffs’ Motion for Class Certification is denied.

Dated: May 24 2005 , ~

Thomas D. Warren

Justice, Superior Court

Plaintiffs have represented that they had filed a petition with NHTSA as of June 2004,

but it is not clear exactly when that petition was filed. DaimlerChrysler contends that plaintiffs

had not filed such a petition as of December 2003. Regardless of when the petition was filed,

the court has not been advised that NHTSA has taken any action.

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

Docket No. CV-01-581

Sror 4

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ALLEN MAZEROLLE and ANNE Le

MAZEROLLE, on behalf of themselves |, .e-

and all others similarly situated,p¢,. aol : oe ~ op

Plaintiffs

or 29

Vv. w ORDER

DAIMLERCHRYSLER CORP.,

Defendant #>"

Before the court is plaintiffs’ motion for class certification. Specifically, plaintiffs

Allen and Anne Mazerolle are seeking to certify a class consisting of all persons who

reside in Maine and who for personal, family, or household purpo with a

DaimlerChrysler A604/41TE transmission for model years 1994-2001 (except for

persons with claims for personal injuries). See Motion for Class Certification filed

December 5, 2003, at p. 1.

In their original complaint, filed October 25, 2001, the Mazerolles brought suit on

their own behalf and on behalf of a proposed nationwide class of all persons owning or

leasing DaimlerChrysler minivans for model years 1994-2001 with A604/41TE

transmissions. Complaint 159. Their complaint alleged that DaimlerChrysler minivans

from those model years had defective transmissions which DaimlerChrysler knew were

likely to fail after the express three-year / 36,000 mile warranty period had expired. E.g.,

id. {{ 1, 44. On behalf of themselves and all others similarly situated, the Mazerolles

alleged (1) that DaimlerChrysler had violated the Maine Unfair Trade Practices Act

(UTPA) and other state unfair and deceptive trade practice statutes (Count I); (2) that

DaimlerChrysler’s express three year / 36,000 mile warranty was unconscionable (Count

I); (3) that DaimlerChrysler had wrongfully concealed a dangerous condition (Count

ID; (4) that DaimlerChrysler had breached its express warranty (Count IV); (5) that

DaimlerChrysler had breached implied warranties under the UCC (Count V); and (6)

that DaimlerChrysler’s three year / 36,000 mile warranty failed of its essential purpose

(Count VJ).

The relief sought in the complaint by the Mazerolles on behalf of themselves and

their putative class includes restitution for any repair costs already paid and an order

requiring DaimlerChrysler to fix or repair the latent transmission defects in any vehicle

of a class member that has not already been repaired. Complaint, Prayer for Relief, {4

2, 4. The latter form of relief would amount, in effect, to a judicial recall of all Dodge,