AARON D. MARTIN, on behalf of himself and all others similarly situated, Plaintiff,
FORD MOTOR COMPANY, Defendant.
JOEL H. SLOMSKY, District Judge.
In May 2010, the rear axle on Plaintiff Aaron Martin's 2001 Ford Windstar unexpectedly cracked. He claimed the fracture was the result of premature metal fatigue caused by a poorly designed axle. Based on the alleged defect, Plaintiff filed the instant suit against Defendant Ford Motor Company ("Defendant" or "Ford") on behalf of himself and others similarly situated claiming breach of express and implied warranties, unjust enrichment, and violations of state consumer protection laws.
The same month that the axle fractured, the National Highway Traffic Safety Administration ("NHTSA") launched an investigation into the rear axle installed on 1998½-2003 Ford Windstars based on complaints of owners who had problems with their vehicles similar to Plaintiff's. An initial review of the complaints led the NHTSA to conclude that the axle's design allowed road salt to collect and, at an accelerated rate, corrode the metal. The NHTSA investigation culminated in a voluntary safety recall by Ford in over twenty-one high-corrosion states. Although Ford had been aware of the metal fatigue issue since 1998, Ford contends that it was not aware of the combined effect that salt corrosion and metal fatigue would have on the Windstar's axle until after the government began the investigation.
At the time of the recall in August 2010, the Windstars at issue were seven to twelve years old. Windstar owners were directed to take their vehicle to a local Ford dealership where their rear axles were inspected. If an axle showed signs of cracking, the axle was replaced. If there were no visible cracks, reinforcement brackets were installed. Ford's inspection data, obtained from the safety recall, revealed that approximately 83.2% of rear axles showed no signs of cracking. Plaintiff's home state of Pennsylvania was included in the recall, but Plaintiff chose not to participate in the recall. Instead, he filed this lawsuit.
Presently before the Court is Plaintiff's Motion to certify four classes of Windstar owners. Specifically, he proposes classes that include all individuals "who have acquired, by lease or purchase, a 1998[½], 1999, 2000, 2001, 2002, or 2003 model year Ford Windstar minivan and still own the vehicle, " who are located in the following places:
For breach of express warranty, Plaintiff proposes a class consisting of [twenty-three]... states[, ] [which]... [include] Colorado, Delaware, Florida, Hawaii, Idaho, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Vermont, Virginia, Washington, West Virginia, Wisconsin and the District of Columbia.
For breach of implied warranty, Plaintiff proposes a class consisting of [twelve]... states[, ] [which]... [include] Alaska, Colorado, Delaware, Hawaii, Louisiana, Nebraska, Nevada, New Jersey, Oklahoma, Pennsylvania, South Carolina, West Virginia and the District of Columbia.
For consumer protection law claims, Plaintiff proposes a class consisting of [twenty-two]... states, which... include Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Kansas, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, Washington and the District of Columbia.
[And] [f]or Plaintiff's unjust enrichment claim, Plaintiff proposes a nationwide class....
(Doc. No. 62 at 1; Doc. No. 83 at 4 n.3, 5, 6 n.6 (emphasis added).) Plaintiff moves to certify these four classes pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3), and seeks injunctive relief and monetary damages on behalf of all class members. For reasons that follow, the Court will deny Plaintiff's Motion for Class Certification.
II. FACTUAL BACKGROUND
A. Three Generations of Ford Windstar Rear Axles
While the Ford Windstar was being manufactured, it used three different rear axle designs. The axles were made by different companies. The first generation axle, used on model years 1995 through 1998, was manufactured by A.O. Smith (the "Smith Axle"). (Doc. No. 67, Ex. C ¶ 9.) The Smith Axle had a solid exterior and a stabilizer bar within it, as depicted in the following cross-sectional diagram:
(Mot. Class Cert. Hr'g Plaintiff's Slide 3, June 4, 2012.)
The second generation axle, used on model years 1998½ through 2003, was manufactured by Benteler Automotive (the "Benteler Axle"). (Doc. No. 67, Ex. C ¶¶ 11, 26.) As shown in the cross-sectional diagram below, the Benteler Axle, also known as a "rear twist beam axle, " used an inverted "U" channel design without a stabilizer bar:
(Mot. Class Cert. Hr'g Plaintiff's Slide 3, June 4, 2012; Doc. No. 67, Ex. C ¶ 11.)
Finally, the third generation axle, placed into production beginning with model year 2004,  was manufactured by Dana and consisted of a design similar to the Smith Axle:
(Mot. Class Cert. Hr'g Plaintiff's Slide 3, June 4, 2012.)
B. The Benteler Axle: Model Years 1998½-2003
At issue in this case is the Benteler Axle. In September 1997, Ford changed axle suppliers from A.O. Smith to Benteler Automotive to reduce costs and axle weight. (Doc. No. 67, Ex. C ¶ 11; Mot. Class Cert. Hr'g 71:3-4, June 4, 2012.) As noted, the Benteler Axle was placed into production as a mid-1998 model year change. (Doc. No. 67, Ex. C ¶¶ 11, 12.)
1. Initial Testing
As part of the production process, the Benteler Axle underwent Ford's standard Corporate Durability Test Procedure. (Id. ¶ 6.) Eric Kalis, Ford Design Analysis Engineer, summarized the procedure as follows:
Ford has a Corporate Durability Test Procedure... designed to produce equivalent fatigue damage and wear to Body, Chassis and Powertrain components over a vehicle's useful life, to which all of the vehicles Ford manufactures are subjected. Throughout the duration of this testing, a specified amount of force (or "load") is exerted on a component over a large number of repetitions ("cycles"). The vehicles subjected to these tests accumulate a significant number of miles over a relatively short time frame and are known as "durability vehicles" which are later examined and inspected to monitor overall vehicle and component performance.
(Id.) Ford describes the purpose of the Corporate Durability Test Procedure more fully in a sixty-nine page manual:
The test is intended to produce equivalent fatigue damage and wear to Body, Chassis, and Powertrain components when tested at either the Michigan Proving Ground (MPG) or Lommel Proving Ground (LPG).
The test is conducted in two phases which total the same cumulative damage at either proving ground.
Phase I emphasizes accelerated chassis and body component structural durability based on North Atlantic customer correlated severity for 240, 000 km (150, 000 miles) of public road usage.
Phase II discontinues severe rough road events, adds high speed Vmax operation, and extends test requirements for all other component durability.
(Doc. No. 67, Ex. C, Ex. 1 (paragraph spacing added).)
In November 1997, about two months after Ford switched to the Benteler Axle, it also made a significant revision to a portion of the Phase I testing. The part revised is known as the "driveway event." (Doc. No. 67, Ex. C ¶ 14.) The driveway event tests the durability of Ford vehicles using four actual driveways, three of which are made of concrete and one made of bituminous material. It is intended to replicate the kind of wear and tear a vehicle would endure traveling up and down a driveway over its lifespan. (Doc. No. 67, Ex. C, Ex. 1 at 4; Mot. Class Cert. Hr'g 19:2-12, June 4, 2012.) According to Engineer Kalis, the revised driveway event "increased the applied stresses to the axle, increased the number of cycles in the test, and changed the direction in which the test was performed, " which resulted in "cumulative fatigue damage that was approximately four times greater than Ford's prior standard." (Doc. No. 67, Ex. C ¶14.)
The Benteler Axle had successfully completed the original driveway event test, but in March 1998, while undergoing the revised test, two rear Benteler Axles fractured out of the eleven axles being tested. (Id. ¶¶ 12, 15; Doc. No. 67, Ex. C, Ex. 5.) Ford was initially unsure what caused the fracture, but theorized that it may have been the result of stones kicked up from the road during testing. (Id. ¶ 15.)
In July 1998, the Ford Central Laboratory in Dearborn, Michigan, received samples of fractured Benteler Axles for testing purposes. (Mot. Class Cert. Hr'g Plaintiff's Ex. 5, June 4, 2012.) The stated objective of the lab analysis was to "[d]ocument the fractures and determine the cause of failure." (Id.) On August 6, 1998, the Laboratory reached the following conclusion:
The two fractured [Benteler] axles.... [b]oth failed due to a fatigue crack initiating on the inside of the forward leg of the "U". The crack origin is nearly identical in location and size which suggests that the initiation site is dependent on stress concentrations and not randomly occurring or due to material defects.
In September 1998, after reviewing these results, Ford conclusively determined that the "root cause of these cracked axles was metal fatigue, likely brought on by the increased load from the new driveway event test of the Corporate Durability Test Procedure." (Doc. No. 67, Ex. C ¶ 17 (emphasis added).) The unexpected metal fatigue "was a result of inaccurate furnace atmosphere during the heat treatment portion of the axle production process, which caused the metal to be weaker than intended." (Id. ¶ 10.)
On October 2, 1998, Benteler Automotive agreed with Ford's diagnosis. (Doc. No. 67, Ex. C, Ex. 5.) At this point, "all parties involved [were] actively pursuing alternate design and material options to improve component durability and to pass the new/revised [driveway event] durability course." (Mot. Class Cert. Hr'g Plaintiff's Ex. 3, June 4, 2012.)
2. Post-Test Monitoring
Over the years, Ford regularly had internal discussions about ways in which to improve the Benteler Axle, and actively monitored the axle's performance in the field, but no changes were made. For example, on October 6, 1999, a Ford memo listed "possible actions" to address the problem:
Heat treated rear axle - Axle has been shown in lab testing to more than double the existing life of the axle. $3.45 piece cost increase, 770K tooling [i.e., necessary changes in production machinery and equipment], 52 weeks lead time, [zero] weight.
[Computer-Aided Engineering ("CAE")] redesigned axle - CAE indicated possible solutions without heat treatment. However, this design would require extensive cost for new tooling and over one year to implement.
[Smith Axle] - The tools which produced the AO Smith... axle still exist, but major cost and timing would be required to recreate the production line.
Repeat 4-poster testing on Toyota Sienna to determine if competitive vehicles can pass revised [driveway event]. If Sienna fails the test, accept Windstar level of performance.
(Doc. No. 67, Ex. C, Ex. 14 (emphasis in original).)
In 2000, as suggested internally several months earlier, Ford ran the A.O. Smith Axle and a Toyota Sienna axle through the new driveway event test. Both axles successfully passed the test. (Doc. No. 67, Ex. C, Ex. 5.)
On June 8, 2000, Ford confirmed that "[f]ractures in the current axle can be prevented by induction heat treatment, " although the cost estimates were increased to $4.52 per piece and $850, 000 in tooling, and the lead time was decreased to 32 weeks. (Id.)
On March 30, 2001, Ford explained that "[a]ll potential solutions except heat treatment have been eliminated, " but "[h]eat treatment can be incorporated as a 2002 [model year] running change" at a cost of $653, 000 in tooling and a $7.91 per piece price impact. (Doc. No. 67, Ex. C, Ex. 19.)
In addition to exploring heat treatment remedies, Ford was also monitoring the field performance of the Benteler Axle. As of October 6, 1999, Ford noted that a "total of 11 high mileage Windstars [were] currently running in vehicle fleets with no reported issues (vehicles have accumulated between 35K-50K miles each). No warranty or field complaints [had] been reported on production vehicles." (Doc. No. 67, Ex. C, Ex. 14.)
As of June 8, 2000, the "11 high mileage Windstars [were still] running in vehicle fleets with no reported issues. Five vehicles [were] in the AEMS fleet (>100K miles), three in the Romulus taxi fleet (60K-70K miles), and three in the Las Vegas taxi fleet (>100K miles)." (Id.) Additionally, Ford had "reports, including extended warranty, [that] indicate[d] no axle fracture[s] in the field as of the February 29, 2000 cutoff." (Id.)
By July 18, 2002, Ford and Benteler Automotive were in the process of testing different heat treated axles. (Doc. No. 67, Ex. C, Ex. 18.) The heat treated Benteler Axle did not go into production until March 2003 when they were added to the model year 2003 Ford Windstar. (Doc. No. 67, Ex. C ¶ 26.) Thus, despite the conclusions Ford reached early on, it continued to manufacture Windstars using the original Benteler Axles - without any modifications - through March 2003. (See Doc. No. 67, Ex. C ¶ 26.) Consequently, from September 1997 through March 2003, all Ford Windstars were manufactured using the same Benteler Axle. (See Doc. No. 67, Ex. C.)
C. Plaintiff's Ford Windstar
Plaintiff is an attorney who practices law in Chester County, Pennsylvania. (Doc. No. 67, Ex. B at 5-9.) In September 2001, he purchased a used 2001 Ford Windstar. He bought it for $22, 000 from a family friend, Scott Stanley. (Id. at 17-19.) Stanley had purchased the minivan new the year before for approximately $30, 000, but was forced to sell it quickly - at what seemed to Plaintiff to be a "great deal" - because Stanley had received a sudden job transfer to London. (Id. at 37-38.) When Stanley sold the minivan, it had approximately 16, 000 miles and was equipped with many extras, such as a built-in VCR. (Id. at 20, 38.) The sale between Stanley and Plaintiff was done informally, most likely without a sales agreement or other documentation. (Id.)
Plaintiff's Ford Windstar was regularly driven by Plaintiff's wife, Katherine Martin. (Doc. No. 67, Ex. I.) Prior to the rear axle failure, she was involved in two minor accidents with the Windstar. (Id.) In May 2010, Katherine Martin was driving the Windstar when she heard a loud noise and the vehicle felt as if it was going to break. (Doc. No. 67, Ex. B at 81, 91.) She called Plaintiff, picked him up at his office, and together they drove the Windstar in an attempt to determine what was causing the strange sound. (Id. at 83-84.) Plaintiff decided - after also hearing an unusual noise and feeling the vehicle shake at higher speeds - to take it to their local mechanic. (Id. at 84-86.) While driving slowly to the mechanic's garage, Plaintiff suddenly heard a loud noise that sounded like metal scraping on asphalt. (Id. at 85-86.) He exited the vehicle and noticed that one of the rear wheels was bent inward. (Id. at 86.) Plaintiff then drove the Windstar to his mechanic's shop at a slow speed with much difficulty steering. (Id. at 88.) His mechanic later told him that the rear axle, which was heavily rusted at the time, had fractured. (Id. at 94.) The Windstar had been driven between 80, 000 and 100, 000 miles when the axle broke. (Id. at 23-24.)
Plaintiff never again drove the Windstar, and said that he does not "ever want to get in another Windstar. Someone could even tell [him] it is completely safe. [He] still wouldn't want to drive it because [his family] had an experience that was disruptive." (Id. at 109, 117, 125.) Plaintiff filed the instant lawsuit in May 2010, the same month that his rear axle fractured. (Doc. No. 1.)
D. National Highway Traffic Safety Administration Investigation and Ford's Voluntary Recall of Select Windstars
On May 13, 2010, the same day that Plaintiff filed this case, the U.S. Department of Transportation National Highway Traffic Safety Administration ("NHTSA") began investigating the Ford Windstar's Benteler Axle. (Doc. No. 67, Ex. C, Ex. 23.) The NHTSA summarized the background of the investigation:
The Office of Defects Investigation has received 234 complaints alleging rear axle failure in Model Year [1998½] through 2003 Ford Windstar minivans, including two alleging that the failures resulted in minor crashes. Over half of the complaints (128) allege a complete fracture of the axle beam. Fifty-six complaints indicate that the axle failure occurred at speeds of 40 miles per hour or greater.
One crash occurred while the vehicle was traveling on a highway. The rear axle reportedly "snapped in half" after the vehicle struck a pot hole. The driver indicated that both rear tires "blew" (note that axle fracture often causes the tires to achieve a severe negative camber - with the top of the tire tilted inward - resulting in contact with the fender well). The vehicle then struck a guard rail because of difficulty controlling the vehicle while braking to a stop. The second crash was also alleged to have involved a complete axle fracture, in this case resulting in a low-speed curb impact.
The rear axle beam in the subject vehicles is an inverted "U" channel design, which appears to provide a collection point for road salt slurry, resulting in corrosion that progressively weakens the part until it fractures. Approximately 96 percent of the complaints (225), 94 percent of the complete fractures (121), 96 percent of the high-speed incidents (54) and both alleged crashes are from "Salt-Belt" states. In addition to the two alleged crashes, 14 additional complaints alleged vehicle control concerns associated with the rear axle failure incident.
A Preliminary Evaluation has been opened to assess the scope, frequency and safety consequences of the alleged defect in the subject vehicles.
The NHTSA's Preliminary Evaluation culminated several months later in a voluntary recall conducted by Ford. On August 26, 2010, Ford sent a letter to all its dealerships throughout the United States outlining the safety recall. (Doc. No. 67, Ex. C, Ex. 24.) In the letter, dealerships were provided background information and directed to take certain action:
Certain 1998 through 2003 model year Windstar vehicles built at the Oakville Assembly Plant from September 1, 1997 through February 28, 2003 and originally sold in, or currently registered in the following states [and the District of Columbia]:
REASON FOR THIS SAFETY RECALL
In some of the affected vehicles, the rear axle could potentially fracture when operated in high corrosion areas (where salt is used on the roadways during winter months) for an extended period of time. If the rear axle should fracture, vehicle handling may be affected which could increase the risk of a crash.
Dealers are to clean and inspect the rear axle for cracks. If the rear axle passes the inspection, return the vehicle to the owner along with the "Passed Rear Axle Inspection - No Crack" Customer Information Sheet attached. If the rear axle did not pass the inspection, contact the Special Service Support Center (SSSC) at 1-800-325-5621 for further instructions. This service must be performed on all affected vehicles at no charge to the vehicle owner.
(Id. (emphasis in original).) Ford also sent a letter to the NHTSA, along with a Defect and Non-Compliance Report pursuant to Title 49, Part 573 of the Code of Federal Regulations, detailing all the steps the company would be taking to address the NHTSA's and customers' concerns about the Benteler Axle. (Doc. No. 67, Ex. C, Ex. 25.) Specifically, Ford informed the NHTSA:
Owners will be notified and instructed to take their vehicles to a Ford or Lincoln/Mercury dealer for an inspection of the rear axle. Owners of vehicles without axle cracking will be notified when to return for the installation of reinforcement brackets to extend the axle durability in the presence of corrosion. Owners who have vehicles with cracked axles will either be offered a repair or alternative transportation until parts become available.
(Id.) Ford estimated that the total number of Windstars sold with the Benteler Axle was 914, 789. (Doc. No. 62, Ex. 42.) Of those sold, the total number subject to recall - the affected vehicles - was an estimated 462, 750. (Doc. No. 67, Ex. C, Ex. 25.)
On September 22, 2010, after receiving Ford's Defect and Non-Compliance Report, the NHTSA closed its Preliminary Evaluation into the 1998½-2003 Windstars because the "action taken by Ford [was] sufficient to resolve the issues raised by th[e] investigation." (Doc. No. 73, Ex. 5.) The details of Ford's safety recall were made publicly available on the NHTSA website. (Doc. No. 62, Ex. 36.)
As of December 2011, approximately fourteen months after Plaintiff commenced this case and the Windstar safety recall was initiated, Ford reported the following results:
Subject to recall - 575, 000 Brackets added - 213, 700 Not subject to recall - 386, 000 Axles replaced - 51, 000 Inspected - 308, 700 Repurchased - 5, 400 No cracks observed - 83.2% Repurchase rejected - 5, 800
(Mot. Class Cert. Hr'g Defendant's Slides, June 4, 2012; see also Doc. No. 62, Ex. 38.) Plaintiff's 2001 Ford Windstar was subject to the safety recall, but he chose not to participate in the recall ...