Belville et al v. Ford Motor Company
MEMORANDUM OPINION AND ORDER granting in part Defendant Ford Motor Company's 1055 Motion for Summary Judgment on Plaintiffs' warranty and unjust enrichment claims; holding in abeyance for further consideration the remainder of Ford's Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 2/27/2018. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLES JOHNSON, et al.,
CIVIL ACTION NO. 3:13-6529
FORD MOTOR COMPANY,
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Ford Motor Company’s Motion for
Summary Judgment. ECF No. 1055. In its motion, Ford argues the Court should grant summary
judgment in its favor for a number of reasons. Given the complexity of this litigation, the Court
limits this Memorandum Opinion and Order to Plaintiffs’ warranty and unjust enrichment claims.
For the following reasons, the Court GRANTS summary judgment in favor of Ford on these
In 2013, Plaintiffs filed three related putative Class Action Complaints in this
Court. 1 As the three cases involved common issues of fact, the Court consolidated the cases in
The original cases were referred to as Belville v. Ford Motor Co., 3:13-6529; Smith v.
Ford Motor Co., 3:13-14207; and Brandon v. Ford Motor Co., 3:13-20976. These cases were filed
with the Court on March 28, 2013, June 12, 2013, and July 25, 2013, respectively.
August 2013 for discovery and pretrial purposes. The lead case became Belville v. Ford Motor
In their original Complaints, Plaintiffs assert they purchased or leased certain
models of Ford vehicles between the years 2002 and 2010. Plaintiffs claim all their vehicles are
equipped with a defectively-designed electronic throttle control (ETC) system. 2 Although the
parties’ analysis of the ETC system is highly technical, on a basic level Plaintiffs allege that the
ETC’s design is unable to identify and mitigate faults (errors) that may cause the throttles in their
vehicles to open and provide greater power than demanded by the drivers, resulting in an
unintended acceleration (UA). It is undisputed that faults can occur for various reasons and be sent
to the system from a variety of sources. Regardless of the precipitating cause of the fault, however,
Plaintiffs argue the problem is that the ETC’s design is not fault tolerant and it should have
included a failsafe system, such as a Brake Over Accelerator (BOA) system. Plaintiffs insist a
properly designed system will stop or mitigate the occurrence of an unintended acceleration. 3 As
Plaintiffs assert a design defect, rather than manufacturing defect, Plaintiffs claim their vehicles
were dangerous and defective at the time of purchase and, as a result, they paid more to purchase
or lease their vehicles than their actual worth. 4 Plaintiffs do not seek any damages for personal
injury, wrongful death, or property damage as a result of any unattended acceleration event.
Plaintiffs state that their vehicles generally include those equipped with the second
generation ETC system (“Gen II”), with three-track contacting Pedal Position Sensors.
A BOA system sometimes is referred to as a Brake Override System.
In the alternative, some Plaintiffs state they would not have purchased their vehicles at all.
After Plaintiffs filed their original Class Action Complaints, Ford filed motions to
dismiss all three cases. Following a hearing on the matter, the Court entered a Memorandum
Opinion and Order on March 31, 2014, granting, in part, and denying, in part, Ford’s motion.
Belville v. Ford Motor Co., 13 F. Supp. 3d 528 (S.D. W. Va. 2014). 5 Of all the Plaintiffs in
Belville, only two actually had experienced an unintended acceleration event. Id. at 535. With
respect to those who had not experienced an unintended acceleration, Ford argued, inter alia, they
could not pursue breach of warranty and related claims because the alleged defect had not
manifested in their own vehicles. Plaintiffs insisted, however, that it was unnecessary for them to
have experienced an unintended acceleration because the manifestation is the defective design
itself. Although these Plaintiffs never experienced any problems with their actual vehicles, they
claimed they did not receive the benefit of their bargain and overpaid for their vehicles because
their vehicles are defective. Id. at 537.
Upon consideration, the Court rejected Plaintiffs’ argument with respect to their
claims for breach of express and implied warranty and unjust enrichment. In its analysis, the Court
agreed with those courts that held “‘[w]here . . . a product performs satisfactory and never exhibits
an alleged defect, no cause of action lies.’” Id. at 535 (quoting Briehl v. General Motors Corp.,
172 F.3d 623, 628 (8th Cir. 1999) (finding no cause of action for breach of express and implied
warranties and fraudulent concealment where plaintiffs never claimed failure in brake performance
and only sought damages for lost resale value and overpayment)); Carlson v. General Motors
Corp., 883 F.2d 287, 298 (4th Cir. 1989) (affirming lower court’s dismissal of claims of lost resale
As the lead case was Belville, the Court entered the main Memorandum Opinion and Order
in that action and entered Orders in the other two cases finding that the main Memorandum
Opinion and Order applied with equal force in all three cases.
value by plaintiffs who had not alleged that they experienced engine difficulties in their own
vehicles); Weaver v. Chrysler Corp., 172 F.R.D. 96, 99-100 (S.D.N.Y. 1997) (finding no cause of
action for breach of warranty, fraud, or negligent misrepresentations for allegedly defective
integrated child seat in vehicle where the putative plaintiff’s child seat never malfunctioned); Yost
v. General Motors Corp., 651 F. Supp. 656, 657-58 (D. N.J. 1986) (stating breach of warranty and
common law fraud require damage and the plaintiff had not suffered actual damage where he
alleged his engine was “likely” to leak); Wilson v. Style Crest Products, Inc., 627 S.E.2d 733, 73637 (S.C. 2006) (affirming summary judgment in favor of the defendant where the allegedly
defective anchor tie down systems for the plaintiffs’ manufactured homes had not failed and the
plaintiffs got the benefit of their bargain). As the court stated in Weaver, “[i]t is well established
that purchasers of an allegedly defective product have no legally recognizable claim where the
alleged defect has not manifested itself in the product they own.” 172 F.R.D. at 99 (citations and
quotation marks omitted). Stated differently, if “a product performs satisfactory and never exhibits
the alleged defect, no cause of action lies.” Id. at 100 (citation omitted).
Following the Court’s analysis, the Court concluded that, for those Plaintiffs who
had not experienced a manifestation of a sudden unintended acceleration, their warranty and unjust
enrichment claims must be dismissed. The Court found “Plaintiffs simply have failed to
demonstrate a plausible claim that they paid more for their vehicles than their actual worth when
they have used their vehicles without incident for many years.” 13 F. Supp. 3d at 542. Since that
determination nearly three years ago, the Court has not wavered from its decision that a
manifestation of the alleged defect is an unintended acceleration. 6
In addition, Plaintiffs did not file a motion for this Court to reconsider that decision.
Following the decision, Plaintiffs sought to file a 497-page First Amended Master
Consolidated Class Action Complaint, consolidating all three actions and identifying new parties,
new claims, and new defect theories. Ford opposed the motion, arguing Plaintiffs were attempting
a do-over, which would precipitate a new round of 12(b)(6) motions on many of the same claims
the Court already resolved. Additionally, Ford noted the parties had not even completed the
briefing over the impact the Court’s March 31 Memorandum Opinion and Order had on 89 of the
individual claims made in the original three Complaints. Upon consideration, the Court agreed
with Ford, and it entered an Order on July 25, 2014, denying Plaintiffs’ motion without prejudice
so that the Court could resolve the parties’ disputes about the original claims and provide the
parties additional guidance. Belville v. Ford Motor Co., Civ. Act. No. 3:13-6529, 2014 WL
3732132 (S.D. W. Va. July 25, 2014). Following briefing on the disputed claims, the Court entered
a Memorandum Opinion and Order on November 14, 2014, further delineating what claims
survived and what claims were dismissed. Belville v. Ford Motor Co., 60 F. Supp. 3d 690 (S.D.
W. Va. 2014).
Thereafter, Plaintiffs again sought to file a Consolidated Complaint.
September 15, 2015, the Court granted Plaintiffs’ motions to consolidate the three actions into a
single action (now styled as Johnson v. Ford Motor Co.) and to include new factual allegations
and revise and add claims for existing Plaintiffs. Johnson v. Ford Motor Co., Civ. Act. No. 3:136529, 2015 WL 5443550 (S.D. W. Va. Sept. 15, 2015). However, the Court denied Plaintiffs’
attempt to add sixteen new Plaintiffs or add any new facts or new claims related solely to those
A motion was filed in each of the three pending actions.
proposed Plaintiffs. 8 Id. at *2. The Court also held in abeyance Ford’s challenges to certain
specific claims. Id. at *3. On November 24, 2015, the Court entered another Memorandum Opinion
and Order ruling on the remaining matters and directing Plaintiffs to file a revised Consolidated
Complaint consistent with the Court’s decisions. Johnson v. Ford Motor Co., Civ. Act. No. 3:136529, 2015 WL 7571841 (S.D. W. Va. Nov. 24, 2015). On December 8, 2015, Plaintiffs filed their
Second Amended Master Consolidated Class Action Complaint. ECF No. 686. Now, following
over three years of voluminous fact and expert discovery, Ford moves for summary judgment.
STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh
the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson,
477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of
Plaintiffs also omitted the names of six previously named Plaintiffs. The Court denied
Plaintiffs’ attempt to simply drop those individuals from the action without filing a motion
pursuant to Rule 41 of the Federal Rules of Civil Procedure. Id.
proof on an essential element of his or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a
mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
As detailed above, the complaints in this case have gone through various stages of
transformation. As of now, there are nineteen named Plaintiffs (which includes two corporations)
from seventeen states. Collectively, Plaintiffs assert a Magnuson-Moss Warranty Act claim and
various state law claims, including, but not limited to, breach of warranty, unjust enrichment,
fraud, and a variety of consumer protection claims. Of the named Plaintiffs, all but two have
alleged they experienced an unintended acceleration in their Ford vehicles. 9 However, Ford argues
in its motion that, for even those Plaintiffs who allege they have experienced an unintended
acceleration, they “have failed to adduce any competent evidence that . . . any of the unwanted
acceleration events they allegedly experienced resulted from an ETC defect[.]” Ford Motor Co.’s
Mem. in Supp. of Mot. for Summ. J., at 1, ECF No. 1056. 10 For the following reasons, the Court
Neither Plaintiff John McGee nor Plaintiff Hasen Design Build & Development, Inc.
allege that they experienced an unintended acceleration event. These Plaintiffs do not assert any
warranty claims or unjust enrichment claims.
Ford also generally asserts that Plaintiffs have not produced “competent evidence that . . .
any of their vehicles have a defect that causes or fails to mitigate unwanted acceleration events . . .
or . . . that any of them have paid any premium or experienced any diminution in their vehicles’
value as the result of any alleged defect.” Id.
Importantly, at this point, the Court has not certified a class, and the Court restricts
its focus to whether the individual Plaintiffs have produced competent evidence from which a
reasonable juror could find that the alleged defect in the ETC system resulted in their unintended
acceleration events. Plaintiffs concede, and their experts agree, that unintended accelerations can
occur for reasons unrelated to the ETC system. For instance, an unintended acceleration can occur
as the result of driver error, such as the driver stepping on the gas pedal instead of the brake or the
driver unintentionally stepping on the gas and brake pedal at the same time, referred to as “fat
footing.” Other known causes for unintended accelerations that are not associated with the
electronics of the ETC include, inter alia, a floor mat inadvertently covering the gas pedal, the gas
pedal being mechanically entrapped by a foreign object placed in the floor well, or build-up of
combustion debris in the throttle body.
Given there are many potential causes of unintended accelerations, the mere fact
Plaintiffs allege they experienced unintended accelerations is not evidence that the alleged defect
caused the acceleration. As this Court previously held, in order to establish either a breach of
warranty or unjust enrichment claim, there must be a manifestation-an unintended accelerationcaused by the alleged defect. In other words, Plaintiffs must produce evidence of a causal link
between their alleged unintended accelerations and the alleged defect in order to avoid summary
judgment on their breach of warranty and unjust enrichment claims.
In support of their case, Plaintiffs theorize that the three-track throttle pedal
assembly of the class vehicles is defective because it can send faults that are unmitigated by Ford’s
Gen II ETC system. Dr. Todd Hubing, Plaintiffs’ designated expert in the areas of automotive
electromagnetic testing and automotive design, identified a number of potential sources for these
pedal sensor faults, including: worn or contaminated sensors, water intrusion, tin whiskers, solder
balls or metal flakes, chaffing of the wire harness, loose or mal-fitted connectors, corroded
connectors, electrical component failures, software bugs, and electromagnetic interference. Expert
Report of Dr. Todd H. Hubing, at 13-14 (June 15, 2017), ECF No. 1073-5, at 14-15. However, Dr.
Hubing did not examine or test any of Plaintiffs’ individual vehicles to determine if these
conditions actually existed. Dep. of Dr. Hubing, 64-66 (July 18, 2017), ECF No. 1055-1, 67-69.
Additionally, he said in his deposition that he had not read the Complaint or Plaintiffs’ depositions,
and he could not say that the vulnerability he believed existed in the ETC design actually caused
an unintended acceleration event in any of Plaintiffs’ personal vehicles. Id., at 54, 100, & 128,
ECF No. 1055-1, at 65, 77, & 80.
Similarly, Dr. Marthinius van Schoor, who was designated by Plaintiffs as an expert
in automotive systems, testing, and design, opined that there are defects with the use of resistive
sensors on the pedal assembly. Expert Report of Dr. Marthinius C. van Schoor, at 19 (July 12,
2017), ECF No. 1057-4 at 20. In particular, Dr. van Schoor identified two pedal sensor issues: (1)
sludge buildup on the throttle from Smeared Ink debris and/or HydroCarbon films and other
foreign materials and/or (2) wear on the throttle position sensor and its subcomponents. Id.; Dep.
of Dr. van Schoor, at 124 (July 31, 2017), ECF No. 1055-4, at 12; Dep. of Dr. van Schoor, at 45,
ECF No. 1057-3, at 4. Nevertheless, as with Dr. Hubing, Dr. van Schoor stated that he had not
inspected any of the named Plaintiffs’ individual vehicles or reviewed any of their depositions.
Dep. of Dr. van Schoor, at 29-30, ECF No. 1055-4, at 3-4. 11
Dr. van Schoor believed he had read the Complaint. Id. at 29, ECF No. 1055-4, at 3.
Dr. Phillip Koopman, who is Plaintiffs’ designated electrical and computer
engineer with a specialization in automotive systems, testing, and design, also identified the
contact sensors in the throttle pedal assembly as a potential source of faults that could result in an
unintended acceleration. Expert Report of Dr. Philip Koopman, at 23-24, Opinions 6-8, & 12 (June
14, 2017), ECF No. 1057-7, at 25-26. In fact, Dr. Koopman recommends pedal replacement as
part of the remedy to fix the alleged defects with the class vehicles. Id. at 24, Opinion 13, ECF No.
1057-7, at 26. 12 In addition, Dr. Koopman said at this deposition that he believed Plaintiffs’
accounts of unattended accelerations were consistent with the defects he mentioned in his report.
Dep. of Dr. Koopman at 90-91 (July 28, 2017), ECF No. 1101-2, at 91-92. 13 However, he further
stated that he had not personally inspected any of Plaintiffs’ actual vehicles, and he did not know
if any of Plaintiffs’ vehicles actually had conditions such as wire chaffing or degraded sensor
contacts. Id. at 88-89, 92-93, ECF No. 1101-2, at 89-90, 93-94.
Likewise, Joellen Gill, Plaintiffs’ expert in human factors and automotive safety,
gave no opinion as to the cause of Plaintiffs’ unintended acceleration events. Dep. of Joellen Gill,
at 31 (July 7, 2017), ECF No. 1099-73, at 3. (“Q. You’re also not giving any opinions regarding
the cause of any of the plaintiffs’ UA accidents, correct? A. You are correct.”). Additionally, David
Bilek, Plaintiffs’ forensic engineer and designated expert on automotive safety and automotive
investigation protocol, stated he had not formed any opinion about whether Plaintiffs’ vehicles had
a defect that resulted in an unintended acceleration. Dep. of David Bilek. at 14-15 (July 14, 2017),
Dr. Koopman also recommends that the ETC system be reflashed. Id.
Dr. Koopman also stated that he had reviewed the Complaint. Id. at 86-87, ECF No. 11012, at 87-88.
ECF No. 1055-1, at 5. 14 Mr. Bilek agreed with Ford’s counsel that “some percentage of complaints
about unwanted acceleration events arise from drivers misapplying the pedals, essentially
mistakenly hitting the gas pedal when they intend to hit the brake pedal[.]” Id. at 136, ECF No.
1055-1, at 29. Moreover, he agreed that one cannot simply accept a particular plaintiff’s perception
of what happened and should use forensic engineering principles to determine what actually
happened. Id. at 46-47, ECF No. 1055-1, at 10.
Despite Plaintiffs’ experts’ failure to test or inspect Plaintiffs’ actual vehicles, there
is no dispute many of those vehicles were available as many of the named Plaintiffs still own and
continue to drive their allegedly defective vehicles. In fact, although not determinative to the
Court’s decision today, one of Ford’s experts, Karl E. Stopschinski, 15 inspected and tested the ten
vehicles Plaintiffs made available to Ford in which Plaintiffs alleged an unintended acceleration
occurred. Mr. Stopschinksi examined:
the powertrain control module (PCM), wiring harnesses and
electrical connectors, accelerator pedal assembly, throttle body and
throttle valve, brake system, driver’s foot well area, imaging of the
PCM/RCM data (if available), connecting the Ford IDS/VCM scan
tool and documenting DTCs and sensor values, performing breakout
box measurements of resistances and voltages of ETC related
sensors and circuits, measuring the accelerator pedal sensor output
and force/position data, and inspecting the brake components.
Additionally, the vehicles were instrumented and were drive tested
to show their acceleration and braking characteristics.
Mr. Bilek also said during his deposition that he had not spoken with any Plaintiffs,
reviewed their deposition testimony, or reviewed the service records for their vehicles. Id., at 15,
ECF No. 1055-1, at 5.
Mr. Stopschinski is an electrical engineer with experience assessing the performance of
automotive components and systems, including throttle control systems.
Expert Report of Karl E. Stopschinski, at 14 (Sept. 1, 2017), ECF No. 1076-1, at 15. Mr.
Stopschinski found, inter alia, no issues with his “measurements of resistances and voltages in the
accelerator, throttle, and brake switch circuits,” and he did not find any problems with pedal
sensors, electrical connections or wiring for the sensors and the pedals, the mounting of the pedal
assembly, or the operation of the accelerator pedals. Id. at 15, ECF No. 1076-1, at 16. Based upon
his testing and inspections, Mr. Stopschinski found “[n]o abnormal conditions existed in the
vehicles that would cause a failure of the ETC system to control the throttle consistent with driver
command. The main ETC components, accelerator pedal, throttle body and PCM components on
all of the inspected vehicles functioned appropriately.” Id. 16
In sum, not only did Plaintiffs’ designated experts admit they never examined or
tested Plaintiffs’ actual vehicles to see if there was evidence of such things as degraded or
contaminated sensors, wiring chaffing, water intrusion, or corroded connectors, but none of those
experts can say that, for those Plaintiffs who allege they experienced an unintended acceleration,
their events were the result of the alleged defect with the ETC system. Quite simply, Plaintiffs
produced no experts who can testify that Plaintiffs’ alleged unintended accelerations were
proximately caused by the alleged defect rather than some other known cause for such events.
Assuming that Plaintiffs did experience an unintended acceleration, “it [is] not enough that a
In their Response to Ford’s motion, Plaintiffs state it would have been “relatively easy”
for Ford to detect unintended acceleration when it first started receiving complaints by “monitoring
vehicles’ acceleration and accelerator pedal displacement” by placing a small camera in the
vehicles to determine if driver error was at fault. Pls.’ Resp. in Opp. to Ford Motor Co.’s Mot. for
Summ. J., at 33-34, ECF No. 1099; Expert Report of Dr. Hubing, at 28, ECF No. 1099-6, at 29.
However, despite the continued availability of many of the Plaintiffs’ vehicles, Plaintiffs have not
claimed they took this step to eliminate human factors.
vehicle accelerated when claimants swore they had done nothing. Instead, . . . [there must be]
competent expert testimony and objective proof that a defect caused the acceleration.” Nissan
Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004). The Court finds this gap between
Plaintiffs’ experts’ opinions and what allegedly occurred in Plaintiffs’ specific vehicles fatal to
Plaintiffs’ warranty and unjust enrichment claims.
Accordingly, finding Plaintiffs have failed to produce competent evidence of a
causal link between their alleged unintended acceleration events and the defect they allege exists
in the ETC system, the Court GRANTS summary judgment in favor of Ford on Plaintiffs’
warranty and unjust enrichment claims. The Court HOLDS IN ABEYANCE for further
consideration the remainder of Ford’s Motion for Summary Judgment. The Court will address
soon the remaining portions of the Summary Judgment motion and the principal Daubert motions.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
February 27, 2018
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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