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Perona v. Volkswagen of Am., Inc.

Court of Appeals of Illinois, First District, First Division

December 8, 2014

PAUL PERONA, ROBERT C. IZENSTARK, and DONALD S. MAWLER, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants,

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 99 CH 12640. Honorable Kathleen M. Pantle, Judge Presiding.


In a class action brought under the Consumer Fraud Act against defendant automobile manufacturers based on certain alleged defects in automobiles plaintiffs had purchased, the appellate court held tat the trial court properly granted defendants summary judgment, denied plaintiffs' cross-motion for summary judgment, and granted defendants' motion to strike the affidavits of plaintiffs' expert witnesses, especially when the appellate court determined that the trial court properly limited plaintiffs' discovery request by ruling that plaintiffs had abandoned their claim that the cruise control was defective in the automobiles at issue, that plaintiffs were properly denied leave to file a seventh amended complaint nearly two decades after the initial complaint was filed, and that the defendants were not required to respond to discovery requests plaintiffs made with respect to privileged documents.

For Appellants: William J. Harte, Chicago, Illinois; Robert F. Lisco, Lincolnwood, Illinois; The Walner Law Firm, LLC, Chicago, Illinois, (Lawrence Walner and Aaron R. Walner, of counsel) for APPELLANTS.

Johnson & Bell, Chicago, Illinois, (James K. Toohey and Garrett L. Boehm, Jr., of counsel) for APPELLEES.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.


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[¶1] This appeal arises from the February 7, 2013 order entered by the circuit

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court of Cook County, which granted summary judgment in favor of defendants Volkswagen of America, Inc., Audi AG, and Volkswagen AG; denied a cross-motion for summary judgment filed by plaintiffs Paul Perona, Robert Izenstark, and Donald Mawler; and granted defendants' motion to strike the affidavits of plaintiffs' two expert witnesses, in a class action brought under the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)). On appeal, the plaintiffs argue that: (1) the circuit court erred in barring them from showing any defects implicating the cruise control system in the vehicles that were the subject of the instant action, where they had previously " withdrawn" their allegation of a cruise control system defect during discovery; (2) the circuit court erred in denying them leave to file a seventh amended complaint; (3) the circuit court erred in granting summary judgment in favor of Volkswagen of America, Inc., Audi AG, and Volkswagen AG on the plaintiffs' Consumer Fraud Act claim; and (4) the circuit court erred in refusing to require Volkswagen of America, Inc., Audi AG, and Volkswagen AG to respond to certain discovery requests by the plaintiffs. For the following reasons, we affirm the judgment of the circuit court of Cook County.


[¶3] This case involves a long and complex history and only the most pertinent facts are summarized below. In March 1987, plaintiffs, who purchased Audi 5000 automobiles during model years 1983 through 1986, filed a class action lawsuit against Volkswagen of America, Inc. (the importer and distributer of Audis in the United States), Audi AG (the Audi manufacturer), and Volkswagen AG (the parent corporation of Audi AG and Volkswagen of America) (collectively, Audi). The claims arose out of the alleged unintended acceleration of the Audi 5000 automobiles. On March 4, 1992, a fifth amended complaint was filed by 12 plaintiffs purporting to represent a class of all purchasers and lessees of Audi 5000 automobiles with model years 1983 through 1986 and a subclass of persons whose automobiles allegedly experienced an incident of unintended acceleration. The fifth amended complaint alleged claims under the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 1992)), the Uniform Commercial Code (the UCC) (810 ILCS 5/2-313, 2-314 (West 1992)), and the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act (the Magnuson-Moss Act) (15 U.S.C. § 2301 et seq. 1994). Specifically, the fifth amended complaint alleged that during the 1980s, owners of 1983 through 1986 automatic transmission Audi 5000 vehicles experienced incidents where their automobiles accelerated from a stopped position to full throttle at times when the automobile was at a standstill or the driver had his or her foot on the brake pedal. At least 2,000 incidents of unintended acceleration occurred, resulting in at least 513 accidents, 271 injuries, and 5 deaths. The fifth amended complaint further alleged that these incidents were caused by defects in the design or manufacture of Audi 5000 automobiles manufactured and sold during the model years 1983 through 1986. The alleged defects include: (1) the lever and cable system linking the transmission shift lever; (2) the brake and gas pedal placement and separation; (3) the cruise control system; and (4) the shift lock system. The class plaintiffs claimed damages in the amount of the diminution of the resale value of their Audi 5000 vehicles. The circuit court[1] dismissed the fifth

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amended complaint for failure to allege specific defects under the Consumer Fraud Act and failure to allege proper notice on its UCC warranty claims and Magnuson-Moss Act claims. On appeal, in 1997, this court affirmed the circuit court's dismissal of the UCC and the Magnuson-Moss Act claims, but reversed the circuit court's dismissal of the Consumer Fraud Act claims on the grounds that the plaintiffs had " adequately alleged consumer fraud violation based on material omission as to the sudden acceleration problem." Perona v. Volkswagen of America, Inc., 292 Ill.App.3d 59, 684 N.E.2d 859, 225 Ill.Dec. 868 (1997). However, the Perona court limited the Consumer Fraud Act claims to those Audi 5000 automobiles purchased before Audi issued press releases acknowledging the existence of excessive unintended accelerations.[2] Id. at 69.

[¶4] On remand, on May 15, 2003, almost six years after the Perona court's decision, the plaintiffs filed the instant sixth amended complaint. The sixth amended complaint contained many of the same allegations as the fifth amended complaint, but focused only on the violation of the Consumer Fraud Act claim relating to Audi 5000 vehicles with automatic transmissions and model years 1984 through 1986--the claim which this court had found to have survived dismissal in its 1997 Perona decision. The sixth amended complaint alleged that the Audi 5000 class vehicles were defective in design or production and reiterated the same alleged defects as those listed in the fifth amended complaint--(1) the lever and cable system linking the transmission shift lever; (2) the brake and gas pedal placement and separation; (3) the cruise control system; and (4) the shift lock system. The plaintiffs once again alleged that the " defects were hidden or latent and not discoverable by plaintiffs with reasonable diligence" and alleged that Audi, with actual knowledge of the latent defects, concealed that information from the public. The plaintiffs alleged that violations of the Consumer Fraud Act occurred when Audi fraudulently and deceptively withheld information from the public about the " dangerous and defective condition" ; that Audi fraudulently misled the public that there was no defect in the class vehicles; and that Audi fraudulently and deceptively refused to bring to the attention of the class members the defect in the class vehicles " until ordered and directed to do so by the requirements of the National Traffic and Motor Vehicle Safety Act."

[¶5] On January 16, 2004, Audi served the plaintiffs with interrogatories. Interrogatory number 25 of the interrogatories asked the following:

" 25. In what regard and based on what evidence do you base your claim that the subject vehicle was defective and was subject to unintended acceleration because of the 'cruise control system?' Identify all documents that support this claim."

[¶6] Thereafter, the plaintiffs failed to respond to the interrogatories and Audi successfully moved the circuit court to compel answers from the plaintiffs. On March 8, 2005, the plaintiffs filed responses to Audi's interrogatories. However, on April 25, 2005, the circuit court ordered the plaintiffs to provide further answers to specific interrogatories, including interrogatory Number 25. On May 5, 2005, the

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plaintiffs responded to Audi's interrogatories by attesting:

" 1. Claim withdrawn relative to lever and cable system.
2. We withdraw the cruise control claim that the same was defective." (Emphases added.)

Therefore, the only claims of defect in the sixth amended complaint that remained were the " brake and gas pedal placement and separation" and the " shift lock system."

[¶7] On February 26, 2009, in an order addressing the plaintiffs' motion for class certification to include residents from six other states besides Illinois, the circuit court granted class certification to only original Illinois purchasers of 1984 through 1986 Audi 5000 vehicles with automatic transmissions and denied the motion with regard to the inclusion of class members in California, Connecticut, Massachusetts, New Jersey, New York, and Washington. In the February 26, 2009 order, the circuit court found that " central to any final determination" were the questions of whether there was a defect in the Audi 5000 class vehicles, whether Audi made misrepresentations regarding that defect, and whether the purchasers suffered financial loss as a result.

[¶8] On December 15, 2009, the plaintiffs served a " request to produce" upon Audi, asking for the production of materials relating to the " throttle control electronics, including cruise control," in the Audi 5000 models that were the subject of the instant class action. In response, Audi filed a motion to quash, alleging that the materials sought were either redundant of prior requests that Audi had already produced to the plaintiffs or concerned discovery that could have been sought long ago. Thereafter, the plaintiffs requested to supplement their prior answers to Audi's interrogatories by identifying expert witnesses who had not been previously deposed. On January 20, 2010, Audi filed a motion for a protective order, objecting to such late discovery and disclosures on the basis that the time for written discovery has passed. The motion for a protective order further asserted that the plaintiffs' requests to produce documents, and the purported testimony of the plaintiffs' expert witnesses improperly pertained to the cruise control claim of defect that had previously been withdrawn and abandoned by the plaintiffs. On February 22, 2010, the circuit court[3] granted Audi's motion for a protective order, barring the plaintiffs from requesting additional documents not previously requested. The circuit court found that the plaintiffs had previously abandoned the issue of whether a defect existed in the cruise control system of the class vehicles and limited the plaintiffs' discovery request accordingly.

[¶9] On March 18, 2010, the circuit court denied the plaintiffs' motion to reconsider the court's February 22, 2010 ruling. On May 20, 2010, the plaintiffs again sought reconsideration or modification of the February 22, 2010 ruling, arguing that it was their position that the defect in the Audi 5000 vehicles was the sudden unintended acceleration " that was caused by a failure to adequately protect against internal electronic interference," that they were " not seeking to blame the cruise control [system] to be the basic cause of the electronics' malfunction resulting in the stimulation of the [electronically controlled] throttle," and that an electronics phenomenon called " electromagnetic interference" could occur to " trick this cruise control component into pulling [the] throttle wide open without regard to whether the system

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was engaged." On August 19, 2010, the circuit court denied the plaintiffs' motion to modify or reconsider the February 22, 2010 ruling, finding that the plaintiffs were improperly seeking to revive the cruise control claim, which they had previously abandoned in 2005. The circuit court specifically found:

" For purposes of plaintiffs' motion, the court need not decide whether their [2005] answer to [Audi's] [interrogatory number 25] constitutes a judicial admission. As the order and transcript of the February 22, 2010 hearing make clear, the court never ruled that plaintiffs' abandonment of the cruise control claim was a judicial admission. Rather, the court simply found that plaintiffs abandoned that claim. *** The reason for that ruling is manifest. This litigation has dragged on for decades. It has been characterized by innumerable discovery disputes, disregarded agreements, and ignored discovery orders, much of it due to plaintiffs' vigorous, if not always successful, positions in this case. More than five years ago, in a sworn statement, plaintiffs stated that they were withdrawing the cruise control claim. Since that time, [Audi] has relied on that statement, as has the court in attempting to guide this matter to resolution. Plaintiffs now seek to resurrect the long dead claim on the assertion that their counsel made a strategic error. Plaintiffs have presented no new evidence or law requiring the court to reconsider its ruling. The process of this litigation has been, in effect, one step forward followed by two steps back. After giving no indication for years of a desire to resurrect their abandoned claim, plaintiffs' eleventh hour attempt to do so now is unreasonable. As the court has previously stated, after nearly a generation of litigation, it is time for the parties to this case to have their day in court and resolve this matter."

[¶10] On August 27, 2010, Audi filed a motion for summary judgment on the grounds that, because the cruise control claim has been abandoned by the plaintiffs, and the discovery testimony of the plaintiffs' experts focused solely on a defect caused by electromagnetic interference in the cruise control system, the plaintiffs could not prevail on their claims that a defect in the Audi 5000 existed or that Audi fraudulently concealed any defect.

[¶11] On July 6, 2011, the plaintiffs filed a response to Audi's motion for summary judgment, asserting that they need not prove a defect in order to prevail on the merits of their consumer fraud claim and that they need only prove that the Audi 5000 vehicles had a propensity to unintentionally accelerate. In combination with the plaintiffs' written response to Audi's motion for summary judgment, the plaintiffs also filed a cross-motion for summary judgment, alleging that the Audi 5000 class vehicles had a disproportionate propensity to suddenly accelerate, that Audi concealed the scope of the unintended acceleration problem in the class vehicles, and that Audi lied to the public. The plaintiffs also alleged that there was no proof that driver errors in misapplying the pedals were responsible for any sudden and unintended acceleration. Attached to the plaintiffs' cross-motion for summary judgment were the affidavits of the plaintiffs' expert witnesses--Samuel Sero (Sero) and Dr. William Berg (Dr. Berg). Sero, a professional engineer, theorized that unintended acceleration results when electromagnetic interference (EMI) causes a signal to be sent by the electronic control unit on the cruise control system to open the throttle (which is controlled by " sensitive electronics" ) to the wide-open position without driver input. The wide-open throttle causes the

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car to suddenly and rapidly accelerate. Sero did not criticize the lever and cable linkage to the transmission shift lever. Dr. Berg, who holds a Ph.D. in civil engineering, attested in his affidavit that he reviewed scientific literature assessing pedal errors in motor vehicles, including alleged pedal misapplications in the context of sudden acceleration. Dr. Berg stated that there was " no reliable scientific or empirical data to support the hypothesis that drivers make an error by putting a foot on the wrong pedal when they shift, then push the accelerator pedal to the floor full throttle, fail to recognize the mistake, and persist until the vehicle crashes." Dr. Berg had no opinion as to whether pedal placement was a cause of untended acceleration.

[¶12] On August 3, 2011, Audi filed a motion to strike Sero's and Dr. Berg's affidavits and to bar their testimony (motion to strike affidavits). One of the bases for the motion to strike affidavits was relevance--that is, the circuit court had previously ruled that the plaintiffs had abandoned the theory that the cruise control system was defective. Audi alleged that because the plaintiffs had abandoned the cruise control theory of defect, they were barred from raising any claim regarding alleged defects in the cruise control system. A second basis for the motion to strike affidavits was that the opinions of Sero and Dr. Berg should be excluded under the Frye/Donaldson test for admissibility of expert ...

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