It's hard to win a consumer class action these days. So many roadblocks in the way.
Here's an example. Which highlights just one of the many, many ways you can lose.
And the fact that I'm not sure that the plaintiffs should lose only highlights the difficulty of these types of cases.
Here's the backdrop:
There's a problem with certain Yamaha outboard motors. Seriously. A problem. Of that I have little doubt. These things allegedly contain a design defect that causes "severe, premature corrosion in the motors’ dry exhaust
system." So even though they should normally last for at least 2000 hours of use, these things crap out at like 500 to 700 hours of use. Which, coincidentally, is long enough for the warranty period to expire, but not long enough for the consumer to get full use out of the thing.
And Yamaha knows it. It gets a ton of complaints, sets up an entire complaint department devoted specifically for this problem, and lots of other stuff. Or at least that's the allegation. And the panel here concludes that, yeah, the allegations here -- at issue is a 12(b)(6) motion -- are sufficient at this point to establish that Yamaha had the requisite knowledge to state a claim.
So does that mean the lawsuit goes forward?
No. Not even against Yamaha USA. (Yamaha Motor independently gets out on personal jurisdiction grounds because it has successfully immunized itself from suit here by acting through a subsidiary, holds the opinion.)
Why no lawsuit?
Well, to prove a product defect in these types of cases, you not only have to establish a defect, but also that the defect results in an "unreasonable safety hazard".
Does the defect in the motor here qualify?
Plaintiffs have two theories as to why it does. First, they say that the defect -- the corrosion -- can cause on onboard fire. Okay. That's not good. That's clearly a problem, no?
Maybe. But the panel holds that that's not a "plausible" result. Because plaintiffs haven't alleged that there have actually been any fires yet. So we're just going to assume -- conclusively -- that, in truth, it's just not true that corrosion can cause a fire in the engine.
Okay then. That's a pretty good example of how Twiqbal can be used these days to bounce a case that you don't like at the pleading stage.
But plaintiffs also have a second theory. One that seems pretty darn plausible to me. Corrosion can definitely cause the motor to conk out. No disputing that. And we're talking about boats here. As a result, plaintiffs say, the risk that an outboard motor could conk out, stranding a boater at sea, is in fact a safety hazard. Ergo the lawsuit can go forward.
To me, there's no denying that losing your motor at sea is a huge problem. Seriously. A huge problem. It easily falls within the category of a "safety" issue. Doctrinally and otherwise.
Life and death.
So doesn't that qualify?
Not according to the Ninth Circuit.
But for the "dead-motor-is-a-safety-issue" argument, the panel's arguments seem neither persuasive nor even that clear. The panel says, with respect to this issue: "We further note that the standard is one of an
“unreasonable” safety risk. The loss of steering power,
while plausibly hazardous, is a potential boating condition
of which Yamaha expressly warns consumers." Uh, okay. Sure, the issue is indeed whether it's an "unreasonable" safety risk. But it is unreasonable if a motor that's supposed to work and that you have every reason to suspect would work suddenly doesn't work, leaving you to potentially die at sea. That's an "unreasonable" safety risk, at least in my view. And the fact that the manufacturer lists this risk amongst its (infinite) disclaimers doesn't change that fact, at least to me. I understand that if I'm in an old boat with a crappy old motor that, yes, I need to prepare for it to conk out. But if I'm in a new boat with a virtually new motor, I expect it will work. Should I perhaps be on the safe side and prepare for an emergency? Of course I should. But that doesn't mean that there's no liability. For example, boats sometimes tip over, and I'm sure every boat manufacturer warns its customer that boats might sometimes tip and that they should have a radio, lifevests, waterproof gear, etc. Notwithstanding that fact, if a manufacturer makes a 50' boat that tips over every time I lean even to the slightest to one side, dude, that's a defect, and if you know about it, you should be liable, not immunized merely because sometimes boats tip. Tipping boats, conked out motors. Same risk, same deal.
Then the panel says something that's not really a doctrinal point, but merely a practical one. It says: "Moreover,
the nature of the alleged defect as being primarily one of
accelerated timing rather than the manifestation of a wholly
abnormal condition weighs against its characterization as 'unreasonable.'" Or, put a different way in the next paragraph: "Finally, the fact that the alleged defect concerns
premature, but usually post-warranty, onset of a natural
condition raises concerns about the use of consumer fraud
statutes to impermissibly extend a product’s warranty
That's, I think, the panel's real thrust. They don't like defect cases that might be thought of as a run-around of the warranty period.
Except safety things are a clear exception to that rule. That's why there's the "safety" requirement in these cases. And that's a matter of state law -- not something that the federal courts are simply free to ignore. If it's a safety issue, then we don't care how long (or short) the manufacturer "warrants" the thing free from defects. We want it to actually be free of unreasonable defects. And if there's in fact a safety issue, that's for a jury to decide.
So the panel's ideological concern on this point isn't really an argument. It's just a preference. It does not in fact respond, in my view, to whether there's an actual safety concern.
Now, yes, I agree, the fact that we're talking here about the "timing" of an alleged flaw might perhaps be relevant in some cases. Because, yes, everything eventually fades, every machine will fail at some indefinite point in the future.
But the fact that a product will eventually fail, and thereby (perhaps) cause a safety issue, does not mean that "timing" issues aren't "safety" issues as well. To take but one example, every grinding wheel will eventually fail. Just give it time. At some point, given enough use, it will fly apart and destroy your face. Even the best-made grinding wheel will shatter itself after a century or millennium of use. The same's true for an airbag or car or stick of dynamite. They'll all seriously hurt you at some point if you keep using them for enough time.
But the fact that a grinding wheel will eventually fall apart in 100 years in no way means that a grinding wheel that falls apart in 100 seconds doesn't create an "unreasoanble safety risk". Not in the slightest. Not even if the manufacturer says, hey, sometimes grinding wheels fall apart. Ditto for prematurely exploding airbags or dynamite sticks or other products. Yeah, these are all "timing" issues. But that's not dispositive. The question is whether its a defect that causes a safety risk, and those two elements seem as equally present with an exploding/failing boat motor as with a similarly defective grinding wheel. They can kill people. People don't expect 'em to fail as rapidly as they in fact do, due to a design defect known by the manufacturer.
That creates liability. And the fact that there's a more limited warranty period for non-safety stuff that the law protects doesn't immunize that fact. Either in justice or under the relevant California law.
Are there tensions between the "safety" lines of cases and the "warranty" lines of cases? Sure. But we have to honestly put each particular case on one side or the other. And when the defect can cause an actual safety issue, it falls on one side of the line, not the other. The "fire" thing, okay, maybe I could get on board for that's just a hypothetical and/or implausible claim. But "dying-on-a-boat-due-to-a-defective-motor" is neither. That's a very real risk.
And, at least in my mind, puts this case on the other side of the ledger.
Without especially persuasive arguments to the contrary, I think, by the panel.