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Hasek v. Daimlerchrysler Corp.

February 22, 2001

TERRY L. HASEK, ALAN BLOCK, AND MITCHELL E. BIANCHIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
DAIMLERCHRYSLER CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice South

Appeal from the Circuit Court of Cook County.

The Honorable Thomas P. Durkin, Judge Presiding.

Terry Hasek, individually and on behalf of all others similarly situated, brought this class action against DaimlerChrysler Corporation (Chrysler). In their original complaint, plaintiffs alleged that Chrysler's model years 1991-95 Jeep vehicles with 4.0 liter (4.0L) and 2.5 liter (2.5L) engines were defective due to an idle knocking noise in the engine. *fn1 The original complaint contained four counts: count I was based on the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1998); count II was based upon common law fraud; count III was based upon breach of implied warranty of merchantability; and count IV was based upon a breach of express warranty. Plaintiffs requested a judgment requiring Chrysler to repair or adjust their engines, or pay the dollar amount of such repair or adjustment, or refund the cost of their warranties.

Plaintiffs filed a second amended complaint, in which Alan Block and Mitchell Bianchin joined as additional class representatives. The trial court granted plaintiffs leave to file their fifth amended complaint and dismissed the class-wide claims for breach of implied warranty of merchantability and the individual claims of Hasek, Block, and Bianchin for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act with prejudice.

In their fifth amended complaint, plaintiffs alleged that Chrysler breached its warranty under the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West 1998)) (count I), and under the Magnuson-Moss Warranty Act (15 U.S.C. §2301 et seq. (1994)) (count II), and committed common law fraud (count III).

Hasek, the leading class representative, purchased a new 1994 Grand Cherokee with a 4.0L engine in the fall of 1993. In the spring of 1994, he noticed a knocking sound coming from the engine. He took his vehicle to Libertyville Jeep/Eagle where a mechanic listened to it and stated that he recognized the sound as a piston knock. He subsequently took his vehicle to three other Jeep dealers to try and fix the idle knocking noise.

Hasek also took his vehicle to the Kenosha engine plant where he spoke to Robert Hollingsworth, the manufacturing/production manager, and Charles Beffel, the quality and engineering manager. He expressed that the noise had become so bothersome that he wanted to trade the car in for an eight-cylinder model. Hollingsworth and Beffel told Hasek that they were familiar with the idle knocking sound, and that although Chrysler had been working to resolve the issue, there had been no resolution thus far. They both listened to Hasek's Jeep and confirmed that it did have a knocking sound at idle. Hasek testified that two additional Chrysler representatives listened to his Jeep prior to trial and agreed that it had a knocking sound. He also testified that although he paid for his repair warranty when he purchased his vehicle, he did not receive the benefit of the warranty because Chrysler never fixed the idle knocking noise in his Jeep and it never contacted him about the engine noise problem. It was also established at trial that when the dealers requested that Hasek leave his vehicle overnight to be serviced, he refused.

Plaintiffs Block and Bianchin also testified at trial that they had similar experiences with their 1991-95 4.0L Jeeps. Chrysler representatives listened to their Jeeps at idle and confirmed that there was a slight knocking noise. Block, Bianchin and other class members expressed concern that there could be engine reliability and durability problems upon noticing a diesel-like engine noise, which was uncharacteristic for a spark engine ignition. They testified that they also sought a repair of adjustment under the repair warranty, but Chrysler did not fix the engine noise. Some class members did receive replacement engines under the repair warranty. However, some testified that the replacement engines also had this idle knocking sound.

Chrysler acknowledged that there were customer complaints. According to Chrysler's records, of the 1,155,993 Jeeps sold between 1991-95, the number of customers who complained about any type of engine noise was 12,807 or 1.11%. They received over 400,000 customer complaints during that period of time. However, only 3.2% of these complaints were about engine noise. In response to these complaints, Chrysler decided to investigate the source of the noise and created several task forces to determine the source of the problem.

The investigation determined that there were three issues concerning the production of the 4.0L engines: (1) mismatched pistons, (2) flaking molykote coating on the pistons and (3) an increased torque of the cylinder head bolt. In late 1993, Chrysler realized that one of the electronic gauges that measures cylinder bore diameters at the Kenosha plant malfunctioned and did not work properly for 7 to 10 days. As a result, some of the pistons were mismatched to their bores even though the pistons were still within specification. After the electronic gauge was repaired, the malfunction was corrected.

Also, in the spring and summer of 1994, a subcontractor misapplied molykote *fn2 coating to the head of the pistons. Apparently, he failed to clean the piston heads properly before applying the molykote coating. Therefore, the coating flaked off more readily. This batch of pistons was identified and returned to the subcontractor, who subsequently removed the molykote and improved his washing process. Chrysler issued a technical service bulletin (TSB) concerning these issues in April 1994.

During 1993 and 1994, Chrysler created an "Idle Knock Task Force" and a "Diesel Noise Task Force" to address customer complaints about the engine noises. Chrysler also had an ongoing task force known as the "noise, vibration, and harshness task force" (NVH) that studied and recommended improvements for overall engine sound quality. NVH recommended that, in order to reduce sound radiation in the 4.0L engine, a main bearing brace could be added to the bottom of the engine block. NVH indicated that by tying the main bearing caps together, bearing movement is kept at a minimum and sound is reduced. This change was incorporated in the 1996 models.

A "customer response team" was also created to respond to customer dissatisfaction, predominantly dealing with the 1993-95 models. Chrysler had the team contact more than 12,000 customers who complained of the engine noise to assure them that there was no durability or safety issue. These customers were offered several options: (a) engine replacement; (b) a service contract; or (c) a coupon for discounted purchase of parts or services. Out of the more than 12,000 customers contacted, 30% were satisfied with their Jeeps and kept their engines; approximately half chose an engine replacement; 18% to19% chose service contracts; 2% chose the coupons; and the remainder traded into other Chrysler products. Chrysler contacted several thousand of the customers who chose the replacement engines within 30 days and, of those surveyed, 90% were "very satisfied" with the replacements, and those that were not satisfied were given yet other engine replacements.

Four experts testified at trial: Dr. Richard Lyon, Dr. Thomas Asmus, Dr. Phillip Myers and Dr. Larry Erickson.

Dr. Lyon, a professor in the mechanical engineering department at the Massachusetts Institute of Technology, who taught courses in sound quality, machinery noise and diagnostics, sound and structural vibration, transportation noise and acoustics, testified as an expert on behalf of the class. He testified that based upon Chrysler documents he reviewed regarding the engineering history of the 4.0L engines: (1) the idle knock/diesel noise started with the 1991 high output engine, (2) the noise was caused by unusually strong piston slap at about 45ø before the top dead center, and (3) the source of the unusual piston slap was excessive bore distortion caused by an insufficiently rigid block. Lyon tested his conclusions by conducting vibration testing on 1991, 1992, 1993 and 1995 4.0L model vehicles purchased by class counsel at an automobile auction.

Dr. Asmus, a senior research executive at Chrysler, engages in engine research. He testified on behalf of defendant regarding the "piston slap," which occurs in all four-stroke engines as a result of the forces acting upon the piston. He explained that there are several types of piston slaps. One is the "conventional" piston slap, which refers to the lateral movement of the piston from one side of the cylinder liner to the other. Conventional piston slap causes the most concern to engineers because at this point the oil film which protects the piston from the cylinder liner is relatively hot, oil viscosity is relatively low, and the gas pressure force in the chamber is high. Furthermore, the gas force on top of the piston slap is very high, and the cylinder liner at the point of impact is very hot. Asmus explained that conventional piston slap is most audible under a heavy load when gas pressures are high and cylinder piston temperatures are elevated.

Another type of piston slap is "early" piston slap, which occurs at approximately 45ø to 50ø before top dead center during the crank shaft rotation when the cylinder pressure changes from negative to positive. Asmus testified that, unlike conventional piston slap, early piston slap during idle is not a concern to engineers because the forces involved are very low and the gas pressure forces are low. He opined that the oil is more robust and thicker, thereby allowing the piston to be cushioned during the impact. Although early piston slap does exist in all throttle spark engines, it may or may not be audible because the audibility depends on the nature of the translation and other sounds that may be emanating from the engine structure.

He further testified that a throttle spark engine is not defective because it exhibits a conventional or early piston slap at idle, nor is it defective because there is an audible conventional or early piston slap at idle. He stated that the audibility of a piston slap is very subjective and is one of the many things about an engine that is audible. He explained that attempting to reduce the audibility of the piston slap subjects the engine to great risks of serious failure.

Asmus testified that although attaching a main bearing brace to the bottom side of the 4.0L engine is a common remedy for what is called a crank rap or bottom end noise, it will have no impact whatsoever on the impact of the piston slap, which occurs in the upper portion of the engine block.

Asmus concluded that, based upon his experience, audible conventional or early piston slap is not the result of any defect in material, ...


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