Lakins prefer that flaky Ford case pass the Judge Kardis litmus test

By Steve Korris | Aug 2, 2007

Retired Judge Kardis

Lakin Law Firm attorneys want Madison County Associate Judge Richard Tognarelli to run a national class action trial against Ford Motor Company the way retired Circuit Judge Philip Kardis would have run it.

As Robert Schmieder explained his plan at a July 11 hearing, plaintiffs would prove that Ford laminated vehicles poorly but no one at trial would know how many people Ford damaged that way.

The Lakin firm would calculate aggregate damages by statistical model.

After trial, as Schmieder explained it, people would join the class by sending the court photographs of flaky vehicles.

Schmieder's plan follows an outline Kardis left behind when he retired.

Kardis certified the suit as a class action in 2003. He planned a trial for two classes, those whose color coats failed and those whose clear coats failed.

He gathered 48 states into one class and 49 into the other.

His order spanned eight model years, from 1989 to 1996. In that span Ford built 27 million vehicles.

Kardis's order still stands, but the Illinois Supreme Court set it up for a fall two years ago with a decision in Avery v. State Farm.

The Justices knocked the props out from under class action litigation, wiping out a Williamson County verdict in excess of $1 billion.

The decision prompted Ford to move for decertification of the topcoat and clearcoat classes Kardis certified.

Chief Judge Ann Callis this year assigned the case to Tognarelli, an unelected associate judge with no prior experience in class actions.

At the decertification hearing, he covered a lot of ground in three hours.

For Ford, Ketrina Bakewell of St. Louis said, "Not all paint degradation is delamination and for that reason you need an inspection of each vehicle.

"Looking at the car on a vehicle by vehicle basis is exactly the type of inspection that the Supreme Court in Avery found made a case not suitable for class action treatment.

"The claim is, you got paint damage on your 18 year old car. And we want to be able to test that, inspect it.

"Not all vehicles delaminate and no paint lasts forever.

"Objective criteria do not exist that would enable this court to simply look at some sort of ready list or litmus test and say you're in the class, you're not.

"If you were inclined to do this, how in the world would you ever accomplish it across the country?"

Bakewell said plaintiffs backed away from an allegation that they could confirm delamination with a cross hatch adhesion test.

She said plaintiff experts stated that they needed a combination of a cross hatch adhesion test and visual inspection.

She said a Ford expert and a plaintiff expert disagree about delamination on vehicles belonging to two plaintiffs.

"This is exactly the kind of battle that you will have millions of times over potentially," Bakewell said.

She said Schmieder asserted that ultraviolet exposure was the sole cause of delamination after expiration of a warranty.

"He presented absolutely no proof that says that," Bakewell said.

"He is actually asking the court to decide an ultimate issue in the case as a foundation for the certification to start with."

"When you look at all the different warranties and when they might have expired as to any individual person, how would you possibly determine that?"

She said a Ford scientist testified that exposure to ultraviolet light, visible light, heat and water can all cause delamination.

She said plaintiffs alleged that Ford deceived the class. She said Avery specifically rejected a theory of fraud on the market.

"You have to have individual damages and proof of that," Bakewell said.

She said Ford did not conceal paint problems. She said Ford sent letters to owners asking if they had problems.

"People came out of the woodwork," she said.

"If you accept plaintiffs' arguments, there is still a laundry list of individual issues that remain. Are you a class member?

"Has Ford already repainted your vehicle?

"Were you actually deceived? And this becomes even more complex with used cars.

"What state law applies to your claim?

"Finally, do you have any damages? If so, what are they?

"Where is the basis for how you would even calculate the statistical damages by statistical inference?"

She said Avery required a class representative for each state. She said plaintiffs had Illinois representatives and a Missouri representative.

After recess, Schmieder opened his argument by saying, "You can spend your life fighting for the truth or propagating error.

"Ford is trying to propagate error. We are here to provide the court with the truth.

"Yes, there is one cause of post warranty delamination.

"We are not suggesting that inspections are required. What we said is, it is easily identifiable visually.

"It may be a simple photograph of the vehicle or it may be someone to just look at the vehicle.

He said a Ford scientist testified that if he didn't expose a car to ultraviolet light, the paint would not peel.

"The reason why they want to inject all these causes is because it would create individual issues," Schmieder said.

"That is propagating error, not seeking the truth.

He proposed an aggregate verdict.

"You have people prove their damages and you pay out of that aggregate verdict," he said.

"If that aggregate verdict isn't enough, you pro rate it down. If it's too much, the court decides what to do with the rest of it.

"We can tell who is in the class. There is certain model years and if they experience delamination, they are in the class."

He said Ford spent money on paint problems in 1993 but did not tell new car buyers that they were still having problems.

"They were continuing to let it slip by and they never told anybody," Schmieder said.

He said if paint has failed on a vehicle a test is unnecessary.

"They keep referring to the Avery litmus test I'm going to take a stand today and I'm going to start calling it the Judge Kardis litmus test," he said.

"We can prove an aggregate verdict."

He said the Avery decision rejected a statistical inference because the uncertainty exceeded constitutional bounds.

"But they actually acknowledge you can prove aggregate class verdicts in class action litigation," he said.

"They point out the cars in this class are between 11 and 18 years old based upon the model years. Every day they delay this case somebody may fall out of the class the way Judge Kardis defined it.

Schmieder turned the argument over to Charles Chapman, who told Tiognarelli that fraud law goes back thousands of years.

Chapman produced a summary of state consumer laws.

"We think that Judge Kardis was correct in his original certification," Chapman said. "If upon examination of this you feel that a lesser number is more manageable, it is certainly your call.

"I think that there are really no significant outcome determinative differences between the various state laws."

Bakewell responded that, "Even if you have similar common law fraud elements, states vary significantly as far as the standard of proof. Some require preponderance of evidence. Some require something more.

"Is the court going to be spending most of its time trying to decide who is even in the class? Is there some ready administrative way that you can just say, you're in the class, you're not?

"Whether it takes five minutes, 20 minutes, half an hour or an hour, if you're applying that to the number of vehicles that are alleged to be part of the class, then it's enormous and runs counter to what Avery said was permissible.

"Even if you are looking at photographs for this many people, to make an assessment of, do you have delamination or not, it still is unworkable. It's just a different form of inspection."

"We cannot just go on a leap of faith that maybe people will be able to prove a claim somewhere down the line if you accept them as class members. That has to be determined initially."

She said aggregate damages were contrary to their complaint.

Her associate Paul Stearns read the complaint: "Plaintiffs seek award of damages equal to the cost of repairing their delaminated vehicles plus attorneys' fees and costs."

Tognarelli gave each side 30 days to propose an order he could sign.

Schmieder presently defends himself in a Cook County suit alleging he conspired with the Lakins to harm the Chicago firm of Freed & Weiss.

The Lakins and Freed & Weiss teamed on Madison County class actions for years, but now each seeks to kick the other out of those cases.

According to Freed & Weiss, Schmieder worked not for the Lakins but for a partnership of the firms.

The flaky Ford suit recalls the dawn of their collaboration. They filed it almost immediately after signing a partnership agreement.

The plaintiff, Joyce Phillips, worked as a secretary for the Lakins. Ford protested the apparent conflict of interest but Kardis saw no problem.

Last year Phillips withdrew as class representative.

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