Caracci v. American Honda Motor Company, Inc.
Filing
247
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 3/27/2024. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Jay Caracci, on behalf of
himself and all others
similarly situated,
Plaintiffs,
v.
American Honda Motor Company,
Inc.,
Defendant.
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No. 19 C 2796
(Consolidated action)
Memorandum Opinion and Order
Chicago has a rat problem. Indeed, it has been named the
Rattiest City in America every year for the past nine years.1 The
city’s
impressive
rodent
population
makes
itself
known
to
Chicagoans in a variety of ways, ranging from the distasteful—such
as when rats scurry down alleys, around garbage bins, or across
the sidewalk—to the destructive,2 to the downright weird.3 Rodents
See Oh Rats! Chicago Tops Orkin’s Rattiest Cities List for Ninth
Consecutive Year, at https://www.orkin.com/press-room/top-rodentinfested-cities-2023 (last accessed March 11, 2024).
2 Researchers from the Lincoln Park Zoo’s Chicago Rat Project note
that “[r]ats can damage property by chewing pipes and wires.” See
https://www.lpzoo.org/science-project/the-chicago-rat-project/.
See also Sackman Report, ECF 174-51 at 6 (“Claims reported for
U.S. insurance companies as far back as the 1950’s estimated that
about 25% of house fires due to undetermined causes are in fact
the result of rodent damage to wiring.”).
1
have long been known to gnaw on a variety of industrial materials,
including “telephone cables, wiring, plastic pipes, rubber, lead
and even steel,” Sackman Report, ECF 174-51 at 6, and national
newspapers
have
reported
that
“[r]odents
have
long
ravaged
automobiles[.]”4 In November of 2023, ABC News Chicago confirmed
that “[r]ats feasting on your car’s wires is a common problem in
Chicago.”5
The present law suit seeks to hold the American Honda Motor
Company
(“Honda”)
responsible
for
failing
to
inform
three
Chicagoland customers and a putative class of consumers that their
vehicles
were
susceptible
to
rodent
damage
that
could
cause
serious vehicle malfunctions. The action also challenges Honda’s
failure either to repair such damage under the terms of Honda’s
New Vehicle Limited Warranty (“NVLW”) or to alert consumers ex
ante that such damage would not be covered by that warranty. A
See Emily Schmall, Jan. 13, 2024, Chicago’s Latest Attraction? A
Rat-Shaped Hole, N. Y. TIMES,
https://www.nytimes.com/2024/01/13/us/chicago-rat-hole.html.
A
photograph of the hole as published in a tweet by Chicago-based
comedian and writer Winslow Dumaine, is reproduced here:
3
Ginger Adams Otis, Jan. 12, 2024, A New York Professor Wages Epic
Battle Against Rats Attacking His Car, WALL STREET JOURNAL, A New York
Professor Wages Epic Battle Against Rats Attacking His Car - WSJ
5 Jason Knowles and Ann Pistone, Chicago rats chew through car
wires, make nests under hoods; what you can do,” ABC 7, Nov. 11,
2023,
https://abc7chicago.com/how-many-rats-are-in-chicago-carwires-chewed-by-rat-baby/14040672/.
4
2
summary of plaintiffs’ allegations and the proceedings to date
follows:
After rodents gnawed the electrical wiring of his 2015 Honda
Accord, causing its power steering to malfunction, Michael Preston
filed a putative class action challenging Honda’s “decision to
switch
to
soy-based
electrical
wiring”
insulation
in
an
to
cover
effort
to
be
the
subject
“more
vehicles’
environmentally
friendly[.]” Compl., Preston v. American Honda Co., No. 22 C 1777
(N.D.
Ill.)
Honda’s
(“Preston”),
“use
of
ECF
soy-based
1
at
material
¶ 2.
to
Preston
cover
alleged
electrical
that
wiring
rendered the wiring particularly susceptible to being sought out,
chewed
and/or
eaten
by
rodents
and
other
animals,”
and
thus
“defective” in material and/or workmanship. Id. at ¶¶ 17, 1. Mr.
Preston claimed that Honda’s failure to disclose his vehicle’s
“soy-based wiring defect,” and its failure to disclose that damage
resulting
violated
from
the
this
defect
Illinois
would
Consumer
not
Fraud
be
covered
and
by
Deceptive
the
NVLW
Business
Practices Act (“ICFA”), 815 ILCS 505/1 et seq. Mr. Preston also
alleged that Honda’s failure to cover the rodent damage to his
vehicle under the NVLW—which promises to “repair or replace any
part that is defective in material or workmanship under normal
use”—breached Honda’s express warranty, as well as its implied
warranty that Preston’s vehicle was fit for use. Preston Compl.,
ECF 1.
3
In a First Amended Complaint, Penelope Turgeon, whose 2017
Honda Civic twice malfunctioned due to successive incidents of
rodent damage to its electrical wiring, joined Mr. Preston as a
named plaintiff. The First Amended Complaint in Preston omitted
Mr. Preston’s breach of warranty claims and asserted only a claim
under the ICFA. That complaint, which was then pending before
another judge of this district, was transferred to the Central
District of California, where similar cases against Honda had been
filed. It was then dismissed by the California court for failure
to state a claim; and while the Ninth Circuit affirmed dismissal,
it remanded to allow plaintiffs to amend their complaint. Preston
v. Am. Honda Motor Co., Inc., 783 F. App’x 669, 670 (9th Cir.
2019). The Central District of California then transferred the
action back to this district. By that time, plaintiff Jay Caracci
had filed a separate action in this district after rodents chewed
through the wiring of his 2015 Honda CR-V.6 Mr. Caracci alleged
that “the soy or bio-based materials used in vehicle manufacturing
today...are increasingly more vulnerable to rodent attacks,” and
he claimed that Honda’s failure to disclose “the defective nature
of
these
materials”
used
in
his
vehicle,
or
to
cover
repairs
As I noted in my order denying Honda’s motion to transfer this
case to the Central District of California, ECF 29, the judge of
that district, whose familiarity with similar cases prompted Judge
Leinenweber to transfer Preston, had since died, undermining the
argument
that
judicial
resources
would
be
conserved
by
transferring Mr. Caracci’s case to that district.
6
4
necessitated by rodent damage under the NVLW, violated the ICFA
and breached Honda’s express and implied warranties. First Am.
Compl.,
ECF
1-1
at
¶¶ 2,
37.
I
consolidated
the
Preston
and
Caracci actions and allowed plaintiffs to file the now-operative
Second Amended Complaint (“SAC”).
The SAC alleges, on behalf of the individuals named above and
a putative class of Illinois consumers, that Honda violated the
ICFA
by:
concealing
known
defects
in
their
vehicles’
wire
harnesses that made them especially vulnerable to rodent damage;
failing to warrant repairs necessitated by such damage under the
NVLW;
and
failing
significant
to
safety
warn
hazards.
consumers
The
that
SAC
rodent
also
claims
damage
posed
that
Honda
breached its implied warranty of merchantability and fitness for
ordinary purpose by selling cars that “include wiring that acts as
food
for
rodents”
and
then
failing
to
repair
or
replace
the
damaged wiring and component parts. Finally, it claims that Honda
breached its express warranty to “repair or replace any part that
is defective in material or workmanship under normal use.” Honda
has
moved
claims
and
for
summary
to
exclude
judgment
the
of
the
testimony
of
individual
plaintiffs’
plaintiffs’
experts.
Plaintiffs have moved for class certification. For the reasons
explained
below,
I
grant
Honda’s
rendering the remaining motions moot.
5
summary
judgment
motion,
I.
Summary
judgment
is
appropriate
when
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
the
affidavits,
if
any,
show
that
there
is
no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
To prevail, the moving party must demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). This can be done in one of two ways: the movant
can present evidence affirmatively negating an essential element
of
the
nonmovant’s
case,
see
Fed.
R.
Civ.
P.
56(c)(1)(A),
or
where, as here, the non-movant bears the underlying burden of
persuasion, the movant can point out “that there is an absence of
evidence to support the nonmoving party’s case.” Green v. Whiteco
Indus., Inc., 17 F.3d 199, 201 (7th Cir. 1994) (quoting Celotex
477 U.S. at 325). If the movant carries its initial burden, the
nonmovant “must set forth specific facts showing that there is a
genuine issue for trial.” Wiegel v. Stork Craft Mfg., Inc., 946 F.
Supp.
2d
804,
808
(N.D.
Ill.
2013)
(quoting
Fed.
R.
Civ.
P.
56(e)). This means that the non-movant “must do more than simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S.
574,
586
(1986).
In
other
words,
the
non-movant
must
substantiate its facts with evidence. Although the record “must be
6
viewed in the light most favorable to the nonmovant,” Anderson v.
Liberty
Lobby,
477
U.S.
242,
255
(1986),
“favor
toward
the
nonmoving party does not extend to drawing inferences that are
supported by only speculation or conjecture.” Monroe v. Ind. Dep’t
of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (internal quotations
and citations omitted).
To prevail on an ICFA claim based on deceptive conduct, a
plaintiff
must
show:
“(1)
a
deceptive
act
or
practice
by
the
defendant, (2) the defendant’s intent that the plaintiff rely on
the deception, (3) the occurrence of the deception in a course of
conduct involving trade or commerce, and (4) actual damage to the
plaintiff that is (5) a result of the deception.” De Bouse v.
Bayer, 922 N. E. 2d 309, 313 (2009). To prevail on the unfairness
prong of ICFA, plaintiffs must point to evidence suggesting that
the
conduct
immoral,
they
challenge
unethical,
(1)
offends
oppressive,
or
public
policy;
unscrupulous;
(3)
(2)
is
causes
substantial injury to consumers. Robinson v. Toyota Motor Credit
Corp., 775 N.E.2d 951, 961 (2002).
II.
Honda’s
lead
judgment
because
putative
“defect”
argument
plaintiffs
that
is
is
that
it
is
entitled
have
uncovered
the
cornerstone
no
to
evidence
of
their
summary
of
the
claims.
Plaintiffs are quick to point out, in response, that “this is not
a design choice case but a fraud by omission case,” and that “they
7
seek
redress
for
vulnerability
and
[Honda’s]
its
specific
refusal
to
knowledge
employ
of
the
wiring
countermeasures,
cover
under warranty, or warn.” SJ Opp., ECF 190, at 3 and n. 3. But
each of these theories is fundamentally rooted in the idea that
the
wiring
in
the
engine
compartment
of
their
vehicles
was
“defective” because the material used to insulate it “attracts
rodents or other animals,” increasing the likelihood that such
animals
will
chew
on
the
wires
and
cause
the
vehicles
to
malfunction. So while plaintiffs may be correct that they need not
establish each element of a design defect claim under the law of
strict products liability to prevail on their ICFA claim, they
must nevertheless offer something to show that the wiring in their
vehicles
was
inferior,
in
some
ascertainable
way,
from
other,
“non-defective” wiring available on the market. Otherwise, their
claim is based on nothing more than the age-old problem of rodents
gnawing on and damaging various types of materials—a claim that
Judge Real appropriately rejected. Preston, 2018 WL 5099507, at *2
(C.D. Cal. May 24, 2018), aff'd in part, rev'd in part on other
grounds and remanded, 783 F. App’x 669 (9th Cir. 2019) (rejecting
plaintiffs’
theory
that
“the
damaged
wires
themselves
are
defective simply because rodents enjoy chewing on them, even if
the wires do not attract rodents.”).
In their original complaints, plaintiffs zeroed in on Honda’s
“decision to switch to soy-based insulation to cover the subject
8
vehicles’ electrical wiring,” which they claimed increased their
cars’ vulnerability to rodent attacks. See Preston Compl., No. 22
C 1777, ECF 1, at 1-2 (“the soy content of the coating attracts
rodents and other animals, causing them to eat away at the wire
coating.”; Caracci First Am. Compl., ECF 1-1 at ¶ 2 (“while the
soy or bio-based materials used in vehicle manufacturing today may
be
allegedly
more
eco-friendly...they
are
increasingly
more
vulnerable to rodent attacks.”). And while the SAC places less
emphasis
on
Honda’s
alleged
“switch”
to
soy-based
materials,
asserting more broadly that “wiring defects” made their vehicles
especially susceptible to rodent attacks, the only specific defect
the SAC identifies is the use of “epoxidized soybean oil and other
bio-based parts” in the wiring insulation in plaintiffs’ vehicles.
See,
e.g.,
materials”);
SAC
id.
at
¶ 42
at
¶53
(alleging
(Honda
“defective
impliedly
nature
represented
of
these
that
its
vehicles contained “non-defective component materials...that would
not be easily susceptible to rodent damage”); id. at ¶ 62 (rodent
damage
allegedly
caused
by
a
“failure
in
Honda’s
product
materials”). See also id. at ¶ 55 (plaintiffs’ vehicles allegedly
unfit for intended purpose because “they include wiring that acts
as food for rodents”).
Ultimately,
however,
plaintiffs
failed
to
uncover
any
evidence that “epoxidized soybean oil,” or indeed any “bio-based”
material, was used in the parts of their vehicles that suffered
9
rodent damage. See Pl.’s L.R. 56.1 Resp., ECF 191 at ¶¶ 103, 105,
107.
Plaintiffs
insist
that
Honda’s
evidence
does
not
“conclusively refute[]”that such materials were used, but that is
insufficient to withstand summary judgment. See Matsushita, 475
U.S. at 586. At all events, even assuming that the damaged parts
of plaintiffs’ vehicles contained soy-based materials, plaintiffs
do not controvert Honda’s evidence of a recent study concluding
that “[t]he inclusion of soybean oil or its derivatives in common
elastomers [does] not affect rodent gnawing.” Def.’s L.R. 56.1
Stmt.,
ECF
174-1,
at
¶ 108.7
Accordingly,
plaintiffs
are
not
entitled to a trial on any theory grounded in the claim that their
vehicles were “defective” because they contained wires insulated
with soy or bio-based materials. This includes the theories that
Honda violated the ICFA by failing to disclose the presence of soy
or
bio-based
material
vehicles;
by
failing
allegedly
heightened
in
to
the
take
wiring
harnesses
of
plaintiffs’
“countermeasures”
to
offset
vulnerability
of
such
wiring
to
the
rodent
damage; or by failing to inform them that damages allegedly caused
by this defect would not be covered under the NVLW.
Plaintiffs do not dispute that this finding was reported in a
study Honda cites, but they assert without evidentiary citation
that “financial and material support” for the study “was provided
by the United Soybean Board.” This statement is presumably
intended to cast doubt on the study’s findings, but in the absence
of any contrary evidence or support for plaintiffs’ speculation,
their bald assertion does not raise a triable factual dispute.
7
10
Unable
presence
of
to
substantiate
soy-based
their
materials
in
original
their
theory
vehicles
that
the
caused
the
injuries asserted in the SAC, plaintiffs insist that their claims
“do not rely on the presence or absence of a particular ingredient
in the wiring harness components,” SJ Opp., ECF 190 at 4, and that
summary judgment is unwarranted based on evidence that “some types
of wiring insulation are more attractive to rodents than others,
but what matters is access and the inability of the insulation to
withstand gnawing without rodent deterrent measures in place,” id.
at 2. But no reasonable jury could find in plaintiffs’ favor on
such evidence. To begin, plaintiffs’ assertion that “some types”
of wiring are particularly attractive to rodents reads a lot like
a tacit admission that they have no evidence that the type of
wiring
found
in
their
vehicles
was
especially
attractive
to
rodents. Moreover, they acknowledge that “like any other vehicle
with an internal combustion engine,” their vehicles “cannot be
sealed against rodent intrusion without compromising the need for
heat dissipation from the engine and suspension travel,” Pl.’s
L.R. 56.1 Resp., ECF 191, at ¶ 121, and, indeed, they have never
claimed that their vehicles’ wiring was particularly accessible to
rodents,
or
that
this
accessibility
caused
the
injuries
they
claim. Finally, to the extent their claim is that the wiring—even
if
no
more
susceptible
to
rodent
damage
than
any
other—is
defective unless it is wrapped with rodent-deterrent tape prior to
11
sale,
I
agree
functioning
rodents
with
wires
enjoy
Judge
are
Real’s
not
chewing
on
conclusion
rendered
them.
that
defective
That
rodent
“[p]roperly
simply
tape
because
serves
as
a
deterrent does not mean the wires are defective unless wrapped in
tape.” Preston 2018 WL 5099507, at *2 (C.D. Cal. May 24, 2018).
In the end, what plaintiffs are left with is evidence that
their vehicles fell victim to the age-old problem that rodents
like to gnaw on all kinds of things available to them, including
electrical
wires
in
parked
cars.
Absent
any
evidence
that
plaintiffs’ vehicles were especially susceptible to this general
risk and that Honda knew of this heightened susceptibility and
intentionally
failed
to
disclose
it,
plaintiffs’
self-styled
“fraud by omission” claim, which seeks redress under ICFA for
Honda’s “specific knowledge of the wiring vulnerability” in their
vehicles,
SJ
Opp.
ECF
190
at
3,
n.3,
cannot
survive
summary
judgment. See Wiegel 946 F. Supp. 2d at 813–14 (ICFA claim based
on
omissions
logically
demands
that
defendants
have
prior
knowledge of the information they allegedly concealed).
That Honda implemented a design change in certain models not
at issue here based on reports that “[c]ustomers are bringing
their vehicle in with the complaint that the check engine light is
on, and in some rare occurrences the vehicle will not start,”
Def.’s L.R. 56.1 Stmt., ECF 174-1, at ¶ 109, does not alter the
analysis.
Such
reports
prompted
12
Honda
to
conduct
an
internal
investigation
in
2004,
in
which
certain
parts
that
had
shown
evidence of rodent damage were tested for “wire toughness & sheath
type/design.” Id. at ¶¶ 110-111. After laboratory tests revealed
that the parts with the least rodent damage—again, not the parts
at
issue
in
this
case—were
insulated
by
a
corrugated
plastic
sheath wrapped in rodent-deterrent tape, Honda incorporated that
design into certain models. Id. at ¶¶ 112. Plaintiffs complain
that Honda did not implement a similar design change in their
vehicles, but they offer no evidence that the incidence of rodent
damage
in
their
models
warranted
an
across-the-board
design
modification, nor any evidence that Honda was aware that rodent
damage was a statistically significant problem in the models they
drove. And in fact, Honda’s expert opines without contradiction8
that
the
number
of
complaints
Honda
received
concerning
the
vehicles at issue in this case relative to the number of vehicles
sold
does
not
suggest
any
systemic
rodent
damage
concern
in
plaintiffs’ vehicle models. Def.’s L.R. 56.1 Stmt., ECF 174-1, at
¶ 127. At bottom, plaintiffs’ claims are based on nothing more
than anecdotal evidence—a collection of service records divorced
from
context
and
devoid
of
meaningful
analysis—that
does
not,
Plaintiffs purport to dispute Honda’s factual statement on the
ground that the records its expert reviewed do not account for all
complaints concerning the vehicle models at issue. But as
plaintiffs neither identify any competing universe of complaints,
nor propose any way to identify the total number of complaints
they deem relevant, they do not meaningfully controvert Honda’s
expert’s analysis.
8
13
standing alone, entitle plaintiffs to a trial on the theory that
Honda
knew
about
a
“defect”
in
their
vehicles’
wiring
but
“refus[ed] to employ countermeasures...or warn” them of the risk
of rodent damage.9
In further retreat from the defect theories articulated in
the SAC, plaintiffs argue that regardless of any defect, Honda may
be held liable under the ICFA for failing to disclose the risk of
rodent damage because Honda’s knowledge of that risk is superior
to consumers’, and the risk of vehicle malfunctions caused by
rodent damage was material to their purchasing decisions. On the
first point, plaintiffs point out that while Honda was conducting
rodent vulnerability studies to address the problem of vehicle
malfunctions caused by rodent damage, none of the plaintiffs had
ever “heard of rodents causing damage to vehicles” before their
own vehicles were stricken. Pl.’s L.R. 56.1 Stmt., at ¶¶ 4, 15,
25. But there are several problems with plaintiffs’ theory. First,
while it may be that it never occurred to plaintiffs that their
cars were susceptible to rodent damage, the problem of rodents
gnawing on vehicle wiring is hardly one uniquely within Honda’s
Plaintiffs also cite evidence of a 2009 investigation into
reports of rodents chewing on the “VTEC Solenoid Harness”—another
part not at issue here—and determined that despite “many
occurrences” [presumably of rodent damage], implementing a “massproduction” countermeasure was not cost-justified. See Pl.’s L.R.
56.1 Stmt., at ¶¶ 73-81. This evidence fails to raise a triable
issue for generally the same reasons the evidence of the 2004
investigation falls short.
9
14
ken. As Honda’s expert Victor Hakim observes, publicly available
consumer guides have published articles with titles such as, “How
to Protect Your Car From Rodents,” which offer tips on how to
“Avoid
Attracting
(featuring
Critters.”
excerpts
from
a
Hakim
Rep.,
Consumer
ECF
Reports
174-53
at
3
publication10).
Additionally, the damage that rats and other rodents can cause to
property
in
general
and
to
vehicles
in
particular
has
been
reported in both local and national news media. See, e.g., supra
notes 4-5 and accompanying text (citing recent articles).
“Under the ICFA, a statement or omission is deceptive if it
creates
the
likelihood
of
deception
or
has
the
capacity
to
deceive. See, e.g., Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938
(7th Cir. 2001). If other information disclosed or available to
the
consumer
dispels
any
tendency
to
deceive,
there
is
no
deception.” Id. at 938, 939. Trujillo v. Apple Computer, Inc., 581
F.
Supp.
2d
935,
938
(N.D.
Ill.
2008).
Given
the
general
availability of information about the risk of rodent damage to
vehicles,
and
absent
evidence
that
the
wiring
in
plaintiffs’
vehicles was especially susceptible to such damage, no reasonable
jury could find that Honda’s failure to warn plaintiffs of the
risk rodent damage amounted to deceptive conduct under the ICFA.
An updated version of the Consumer Reports article is available
at
https://www.consumerreports.org/cars/car-maintenance/how-toprotect-your-car-from-rodents-a5816950285/ (last accessed March
26, 2024).
10
15
Second, no reasonable jury could conclude on the evidence
here that Honda’s failure to inform them that such damage was not
covered by the NVLW, was material to their purchasing decision.
The
only
evidence
plaintiffs
offer
that
can
reasonably
be
construed as supporting materiality is Mr. Caracci’s deposition
testimony that if he had known at the time of purchase that “Honda
doesn’t cover rodent damage...this could potentially have been an
issue, then I would have perhaps not purchased that vehicle.”
Caracci Dep., ECF 185-1 at 95.11
But as Mr. Caracci went on to
testify, his job requires him to have “a reliable vehicle in order
to go to and from appointments with the clients.· If I’m unable to
have that, then I don't earn an income.” Id. at 96. The only
reasonable inference that can be drawn from this testimony is had
Mr.
Caracci
not
purchased
the
Honda,
he
would
have
purchased
another car. Yet, as explained above, plaintiffs have not offered
any evidence to suggest that a) the wiring in any other car Mr.
Caracci would have purchased was less susceptible to rodent damage
than the wiring in the Honda he did purchase; or b) that rodent
damage to any other car Mr. Caracci might have purchased would
have been covered by warranty. Accordingly, no reasonable jury
could conclude based on Mr. Caracci’s testimony that he would have
Plaintiffs’ opposition states that “[t]hey expressed that they
wished they would have known (sic) about the exclusion as it could
have impacted their behavior,” but I have reviewed the evidence
they cite for this statement and conclude that only the abovecited testimony by Mr. Caracci supports it.
11
16
made a different purchasing decision had he known the information
plaintiffs fault Honda for omitting.
Moreover, courts assess the materiality of alleged omissions
using “a reasonable person standard -- i.e., whether the omission
concerned the type of information upon which a buyer would be
expected to rely in making a decision whether to purchase.” id. at
939, Naturally, consumers such as plaintiffs, who have already
incurred a loss, are likely to feel that they would have done
something differently at the time of purchase to avoid the damage.
But to evaluate objectively how a reasonable consumer would behave
at that time, when the loss is merely a risk rather than a fait
accompli, a fact-finder must consider, at a minimum, how likely
that risk is to materialize. Plaintiffs’ evidence does not allow a
jury
to
consider
that
question.
Plaintiffs
state
that
Honda
produced “over 3000 complaint records related to rodent damage,”
but they offer no context for this number. Does each of these
complaint records relate to a unique incident of rodent damage, or
do
incidents
of
rodent
damage
typically
generate
multiple
complaint records? Does each complaint record relate to a unique
vehicle,
or
do
some
vehicles
(such
as
Ms.
Turgeon’s)
suffer
multiple incidents of rodent damage, generating multiple records?
Perhaps most importantly, how does the number of complaint records
compare to the total number of Honda vehicles on the road in any
given period, and how does that ratio compare to the rate at which
17
other vehicles the consumer might have purchased suffer rodent
damage? Without any evidence to answer questions such as these,
the fact-finder cannot evaluate how a reasonable consumer would
weigh the risk that her vehicle might suffer rodent damage that
would not be covered by warranty.
The
foregoing
discussion
explains
why
plaintiffs
are
not
entitled to a trial on their deception claim under the ICFA. Their
claim of unfairness requires only brief additional comment. The
so-called “Sperry factors,” derived from Federal Trade Comm’n v.
Sperry & Hutchinson Co., 405 U.S. 233 (1972), guide the analysis
on whether a given practice is unfair under the ICFA. They “ask
whether the practice (1) offends public policy; (2) is immoral,
unethical, oppressive, or unscrupulous; or (3) causes substantial
injury to consumers. Batson v. Live Nation Ent., Inc., 746 F.3d
827, 830 (7th Cir. 2014). Plaintiff argues that Honda’s conduct
satisfies
the
third
criterion
“because
sudden
loss
of
power
steering resulting from rodent damage presents a safety issue on
the roadway and [Honda] provides no warning of the latent defect.”
For reasons discussed above, the evidence does not substantiate
plaintiffs’
claim
of
“defect.”
And
while
it
is
reasonable
to
believe that a “sudden loss of power steering” could, in some
contexts, result in a serious accident, none of the plaintiffs
suffered any kind of accident as a result of the rodent damage to
their vehicles, nor do they point to any evidence suggesting that
18
anyone
has
suffered
such
an
accident
due
to
rodent
damage.12
Accordingly, plaintiffs argument that Honda’s conduct is unfair
because
it
causes
substantial
injury
to
consumers
is
too
speculative to warrant a trial of their ICFA unfairness claim.
Plaintiffs’
express
and
implied
warranty
claims
similarly
merit only brief analysis. All agree that to withstand summary
judgment of their claim for breach of express warranty, plaintiffs
must identify evidence from which a jury could conclude that their
vehicle malfunctions were caused by a defect in the vehicles’
materials
or
workmanship.
As
explained
above,
plaintiffs
have
failed to uncover any admissible evidence of the soy-based defect
alleged in their complaints. Indeed, plaintiffs concede that their
claims are not based on the presence or absence of any particular
ingredient in their vehicles’ wiring insulation. The “defect” they
now identify—that their volehicle’s wiring could not “withstand”
Moreover, plaintiffs play a bit fast and loose with the evidence
on this front. For example, they assert that Honda was aware that
rodent damage could cause so-called “A-Rank issues,” i.e., safety
concerns, including “having power steering fail and the steering
wheel lock up while driving on a highway.” Pl.’s L.R. 56.1 Stmt.,
ECF 185 at ¶ 42 (citing Golding Dep., ECF 218-6, at 272-275). But
the cited evidence does not indicate that rodent damage caused a
“steering wheel lock up.” In the cited testimony, Mr. Golding,
Honda’s manager of automobile warranty operations, states, “after
reading the entire paragraph of this story, it sounds like the
steering wheel lock up as described is not an actual, complete
steering wheel lock up. It’s a stiffening of the steering based on
what I'm reading in the entirety of the paragraph because the
customer was able to drive the car.” Accordingly, it does not
show, as plaintiffs suggest, that Honda “is aware” that rodents
“have caused” incidents in which the steering wheel “lock[ed] up
while driving on a highway.”
12
19
rodent gnawing without the use of Rodent Tape—simply does not
describe
a
defect
in
materials
or
workmanship,
but
rather
repackages their challenge to Honda’s design decision to apply
rodent
tape
pre-sale
in
only
certain
models.
As
defendants
observe, Illinois law distinguishes between claims based on design
defects and those based on defects in materials or workmanship.
See Hasek v. DaimlerChrysler Corp., 319 Ill. App. 3d 780, 790, 745
N.E.2d 627, 635 (2001). See also Bruce Martin Const., Inc. v. CTB,
Inc., 735 F.3d 750, 753 (8th Cir. 2013) (“[D]efects in material
and
workmanship
refer
to
departures
from
a
product’s
intended
design while design defects refer to the inadequacy of the design
itself.” (interpreting Indiana law).
The theory on which plaintiffs now rely is clearly in the
nature
of
a
design
NVLW’s
exclusion
defect.
for
“Acts
Accordingly,
of
Nature.”
I
need
not
reach
the
Because
the
damage
to
plaintiffs’ vehicles was not caused by defects in materials or
workmanship,
it
did
not
trigger
Honda’s
repair-or-replace
obligations under the terms of the NWLV in the first instance.
None of the cases plaintiffs cite supports a contrary conclusion.
This
leaves
only
plaintiffs’
claim
for
breach
of
the
Magnusson-Moss Warranty Act, which “imposes on manufacturers the
same implied warranties that state law imposes on the buyer’s
immediate seller.” Alvarez v. Am. Isuzu Motors, 749 N.E.2d 16, 22
(2001) (citing Cosman v. Ford Motor Co., 674 N.E.2d 61, 64 (1996).
20
Accordingly, a jury can find in plaintiffs’ favor if it concludes
that their vehicles were not “fit for the ordinary purposes for
which such goods are used.” 810 ILCS 5/2–314(2)(c). At bottom,
this claim, too, relies on the ultimately unsubstantiated premise
that the wiring in plaintiffs’ vehicles was “defective.” See Oggi
Trattoria & Caffe, Ltd. v. Isuzu Motors Am., Inc., 865 N.E.2d 334,
341
(2007)
(“[w]ith
regard
to
automobiles,
fitness
for
the
ordinary purpose of driving implies that the vehicle should be in
a safe condition and substantially free of defects”) (citations,
internal
quotation
marks,
and
alterations
omitted).
What
the
evidence in this case shows is that the wiring in plaintiffs’
vehicles,
like
many
other
components
of
many
electronic
and
industrial items, was vulnerable to rodent damage. The notion of
“defect,” however, implies that the wiring in their cars departed
from some ascertainable standard or norm. For example, if some
feature of their vehicles’ wiring made it especially susceptible
to
rodent
damage
as
compared
to
other
vehicles,
a
jury
could
reasonably conclude that the wiring was defective. Or indeed, if
Honda
failed
to
incorporate
available,
rodent-deterrent
design
elements commensurate with the level of risk that rodent damage
presents to consumers, a jury could reasonably conclude that its
design
was
defective.
But
plaintiffs’
vehicles
were
not
“defective” simply because they suffered rodent damage, nor does
21
the record suggest that their vehicles were so unsafe to drive as
to be unfit for their ordinary purpose.
III.
For
the
foregoing
reasons,
defendants’
motion
for
summary
judgment is granted. All other pending motions are terminated.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: March 27, 2024
22
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