[00:00:08] Speaker 00:
Good morning, everyone.

[00:00:09] Speaker 00:
Welcome to the Ninth Circuit.

[00:00:13] Speaker 00:
Judge Hurwitz and I are also very pleased to welcome back Judge Ezra, originally a district judge in Hawaii and now based out of Texas.

[00:00:24] Speaker 00:
Thank you.

[00:00:27] Speaker 00:
I'll be calling the cases in the order that they're listed on the calendar.

[00:00:31] Speaker 00:
The first three cases, however, Fernandez-Melendez versus Garland, Munoz-Donas versus Garland, and Dial versus O'Malley have been submitted on the briefs and records.

[00:00:43] Speaker 00:
So the first case up for argument is Zuelsdorf versus FCA US LLC.

[00:01:00] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:01:03] Speaker 03:
I'd like to reserve five minutes for rebuttal.

[00:01:05] Speaker 03:
All right.

[00:01:06] Speaker 03:
We're here again today, one year later, on a renewed motion for summary judgment, this Court having reversed the District Court on its previous summary judgment entry.

[00:01:16] Speaker 03:
After that reversal, we went back down to the district court.

[00:01:19] Speaker 03:
The district court gave the defendant a special opportunity to brief a new summary judgment motion on a different issue.

[00:01:25] Speaker 03:
And here we are again.

[00:01:26] Speaker 04:
Well, it wasn't a special opportunity.

[00:01:28] Speaker 04:
The defendant had moved for summary judgment on that issue before, but the judge never reached it.

[00:01:35] Speaker 03:
Fair enough.

[00:01:36] Speaker 03:
We did oppose, but your point is well taken, Your Honor.

[00:01:39] Speaker 03:
I appreciate it.

[00:01:40] Speaker 03:
Judge, your words.

[00:01:41] Speaker 03:
It's a case about a well-known defect in a transmission, the Jatco transmission in model year Dodge Caliber and Jeep vehicles.

[00:01:50] Speaker 03:
And the district court found that we had no evidence of causation linking the defect itself to the defect symptoms.

[00:01:57] Speaker 03:
In particular, the judge concluded that we had not ruled out that the symptoms could have been caused by operator misuse, low tire pressure, or a plugged exhaust system.

[00:02:06] Speaker 04:
Can I cut right to the chase on this?

[00:02:10] Speaker 04:
I've read your expert's report, the supplemented one in the declaration, and I can't find any point in the report where your expert says it's more probable than not that the problems with Mr. Zulsdorfskar were caused by the alleged defect.

[00:02:30] Speaker 04:
We can get into later what the alleged defect is.

[00:02:33] Speaker 04:
Am I right in reading it that way?

[00:02:35] Speaker 03:
I disagree, Your Honor.

[00:02:36] Speaker 03:
Our position is— Well, don't tell me what your position is.

[00:02:39] Speaker 04:
Tell me where your expert opines that the problems with Mr. Seulsdorf's car were more probably than not caused by the alleged defect.

[00:02:49] Speaker 03:
So the expert says that Mr. Zuelsdorf has a transmission that's identical to all of these transmissions in the class vehicles, and that the defect symptoms that were experienced by these vehicles were caused by that transmission.

[00:03:02] Speaker 04:
Well, he doesn't say that.

[00:03:03] Speaker 04:
See, that's my problem.

[00:03:05] Speaker 04:
He says...

[00:03:07] Speaker 04:
The alleged defect, and it's difficult to describe the defect here, but I take it the defect is that the transmission is designed so that if it's filled to a certain level, it may overheat, but if it's filled to a lower level, it will not.

[00:03:21] Speaker 04:
Is that a fair summary of what the defect is?

[00:03:24] Speaker 03:
Yes, and that it is filled to that level and that the system is in fact closed, right?

[00:03:28] Speaker 03:
So that the level can't be changed unless the system is cracked open.

[00:03:31] Speaker 04:
Oh, the level can be changed.

[00:03:32] Speaker 04:
After all, your whole theory of damages in this case is that the way to fix the defect

[00:03:36] Speaker 04:
is to lower the level of the transmission fluid, correct?

[00:03:40] Speaker 03:
Yes, that's correct.

[00:03:41] Speaker 04:
Okay, I want to get back to that, but I want to just stick with this for a second.

[00:03:45] Speaker 04:
And so I read your expert's report and he says, I never examined Mr. Zulesboos' scar.

[00:03:51] Speaker 04:
There could be a whole series of reasons why the car exhibits these symptoms.

[00:03:58] Speaker 04:
One of the reasons could be this alleged defect in overfilling of the transmission fluid.

[00:04:05] Speaker 04:
And then if he just said, it's my opinion that that's what caused it,

[00:04:11] Speaker 04:
I would think you could defeat summary judgment.

[00:04:14] Speaker 04:
But he never says that.

[00:04:15] Speaker 04:
That's my difficulty.

[00:04:17] Speaker 04:
And it's a factual problem.

[00:04:19] Speaker 04:
I can't find anything in his opinion where he says that.

[00:04:23] Speaker 04:
He talks about the class of cars having this problem.

[00:04:26] Speaker 04:
And he says, I guarantee you that some of them had this problem, because otherwise there wouldn't be this email exchange.

[00:04:34] Speaker 04:
But where does he?

[00:04:35] Speaker 03:
Yeah, I guess I have a few points.

[00:04:36] Speaker 03:
But to respond to you directly, Your Honor.

[00:04:38] Speaker 03:
On page 1827 of the record, he says that, and he uses the word causes, he says that the defect causes the defect symptoms in the class vehicles.

[00:04:48] Speaker 03:
And so I think there he says it directly.

[00:04:52] Speaker 03:
Now again, he talks about the class vehicles in general, but all of the class vehicles have the same transmission, and he says that the plaintiff's vehicle has this transmission.

[00:05:02] Speaker 04:
But it may cause it, but is it more probable than not?

[00:05:05] Speaker 04:
See, that's my difficulty.

[00:05:07] Speaker 04:
You guys, you could have put on an expert who said that.

[00:05:09] Speaker 04:
It's more probable than not.

[00:05:11] Speaker 03:
I think at summary judgment, the burden is to prove that a juror could find that trial, whether it's more probable than not.

[00:05:20] Speaker 04:
A reasonable juror could find that it's more probable than not if the only basis for the juror reaching that conclusion, which I think is true in this case, is the expert's report.

[00:05:30] Speaker 03:
And there, I don't think that's true.

[00:05:32] Speaker 03:
So I actually think the strongest evidence, if this is all right, is the testimony of the mechanics and the worksheet

[00:05:38] Speaker 03:
from the mechanics from the certified dealerships that say that the problem the plaintiff experiences was caused and here at the the worksheet we have the Can you can you do me a favor counsel?

[00:05:48] Speaker 00:
It will be helpful because I think this is

[00:05:52] Speaker 00:
If this goes to the jury, it's a weak case.

[00:05:55] Speaker 00:
But certainly we've seen situations where the reports don't look too good.

[00:05:59] Speaker 00:
It goes to the jury and the experts a little better on the stand.

[00:06:02] Speaker 00:
And I'm trying to figure out if you get past that threshold.

[00:06:06] Speaker 00:
So can you nutshell what evidence you have that creates a tribal issue?

[00:06:11] Speaker 00:
You've got your plaintiff who's testifying to symptoms, the shuddering, et cetera.

[00:06:17] Speaker 03:
We have the expert that testifies that these defects cause these sorts of defect systems.

[00:06:21] Speaker 03:
I think, again, the strongest evidence is from the dealerships themselves the two times it goes in.

[00:06:26] Speaker 00:
Where does he say that it caused it?

[00:06:29] Speaker 00:
I would point you again.

[00:06:30] Speaker 00:
Is it ER 1460?

[00:06:33] Speaker 03:
Hang on just a sec.

[00:06:38] Speaker 03:
expert testimony.

[00:06:39] Speaker 03:
I have the expert testimony in 1825 and then where he says he uses the exact word cause and again I apologize that he didn't repeatedly use the magic word cause in the expert report or more likely than not but it was on the citation previously given I think 1826

[00:07:00] Speaker 00:
Let me back up for a minute.

[00:07:02] Speaker 03:
But I do have a bucket of evidence outside of the expert report.

[00:07:06] Speaker 04:
You've got the worksheet, and I want to ask you about the worksheet.

[00:07:09] Speaker 00:
I was going to have you get back to that.

[00:07:10] Speaker 00:
So he experiences his symptoms.

[00:07:12] Speaker 00:
He doesn't have any expertise.

[00:07:14] Speaker 00:
He takes us to the mechanic, and the mechanic says what?

[00:07:17] Speaker 03:
They say that the transmission is what is causing the problem.

[00:07:21] Speaker 03:
The first time they look at the transmission, they say it will take further work.

[00:07:25] Speaker 00:
That's the Redlands dealership, and then the worksheet comes out.

[00:07:27] Speaker 00:
What about the transmission?

[00:07:27] Speaker 00:
What about the transmission is causing the problem?

[00:07:30] Speaker 00:
What issue in the transmission?

[00:07:33] Speaker 03:
They said it was a transmission overheating problem, which again is what the defect would cause.

[00:07:38] Speaker 04:
We're talking about 2014 now, right?

[00:07:40] Speaker 03:
Yeah, 2014.

[00:07:41] Speaker 04:
Okay, so I have two questions about that, specific factual questions.

[00:07:46] Speaker 04:
One is, the worksheet does seem to give some support to your case, but I can't find any

[00:07:52] Speaker 04:
You don't cite it in your briefs.

[00:07:55] Speaker 04:
Yeah, that's correct.

[00:07:55] Speaker 04:
And you never cited it in your summary judgment papers below.

[00:08:00] Speaker 03:
We did in Statement of Undisputed Material Facts Number 21 through 41.

[00:08:05] Speaker 03:
I can't recall.

[00:08:08] Speaker 04:
You see, I don't see any argument in your brief below that this worksheet establishes

[00:08:14] Speaker 04:
causation.

[00:08:15] Speaker 04:
Am I wrong?

[00:08:16] Speaker 03:
I can't remember where we wrote it in the motion, the text of the motion itself, but it is referenced repeatedly as Exhibit R to the Sewell-Stork definition.

[00:08:26] Speaker 04:
I had one other question about the 2014 repair.

[00:08:29] Speaker 04:
The 2014 repair

[00:08:34] Speaker 04:
put the transmission fluid at a lower level.

[00:08:37] Speaker 04:
That's what the worksheet says.

[00:08:40] Speaker 04:
We put it at a lower level at a certain temperature, and that's within the range that even your expert says is supposed to be OK.

[00:08:47] Speaker 04:
So there's no change in the transmission fluid level between then and 2018.

[00:08:51] Speaker 04:
At least there's no testimony about it.

[00:08:54] Speaker 04:
How could any of the 2018 problems have been caused by the defect?

[00:08:59] Speaker 03:
because the transmission itself needs to be basically replaced.

[00:09:02] Speaker 04:
Well, see, but that's not the... You've been up here once.

[00:09:07] Speaker 04:
You came up here once.

[00:09:09] Speaker 04:
What was your theory of damage?

[00:09:10] Speaker 04:
And the court says the theory of damage is the defect is repaired.

[00:09:14] Speaker 04:
The problem is fixed by lowering the transmission fluid level.

[00:09:19] Speaker 04:
And so I don't think you can now claim a different theory of damage because you've been up here once.

[00:09:26] Speaker 04:
It's law of the case.

[00:09:28] Speaker 03:
Yeah.

[00:09:29] Speaker 03:
For what it's worth, my understanding is there were two issues, the auxiliary cooler issue and the transmission level.

[00:09:34] Speaker 03:
And that to fix the transmission fluid level, you actually do need to crack open the transmission.

[00:09:39] Speaker 03:
But I understand.

[00:09:40] Speaker 03:
If it's one of the cases, I can't argue that.

[00:09:42] Speaker 04:
My last question about 2014, and this is this.

[00:09:45] Speaker 04:
If your theory of damage, which I think you're now stuck with after the last appeal, is that it's a $24 problem to replace the transmission fluid and to lower it to a lower level, how does your client have any damage?

[00:10:01] Speaker 03:
Well, he was, at the very least, if you accept the appellee's argument that the problem was fixed in 2014, which is not our position, and we don't think that's what the worksheet shows.

[00:10:11] Speaker 03:
But if you accept that position, then at least he was damaged from the purchase of the vehicle through that 2014 repair.

[00:10:17] Speaker 04:
And I would agree with that theory, except your theory of damage, the one that you're now here with the second time, is that it's the cost of replacing the fluid.

[00:10:28] Speaker 04:
That is the theory of damage.

[00:10:30] Speaker 04:
And your client didn't pay anything to have the fluid replaced.

[00:10:33] Speaker 03:
Well, that and sort of the problems that he had driving it and things like that.

[00:10:39] Speaker 04:
But that's not, I mean, if that's your problem, then you've got a class certification issue because everybody has different problems.

[00:10:44] Speaker 04:
But see, I think I thought this is why I'm asking you questions about this.

[00:10:49] Speaker 04:
I thought after the last time you came up here,

[00:10:51] Speaker 04:
the court said your theory that everything needs to be fixed and replaced completely is not supported by the record because your client didn't have the kind of

[00:11:04] Speaker 04:
transmission, the cooling system that your expert's thing was based on, but you do have a valid theory of damages based on $24 replacement cost.

[00:11:15] Speaker 04:
And so I accept that.

[00:11:17] Speaker 04:
And my question is, but your client got a free replacement, so how does he have any damage at all?

[00:11:22] Speaker 03:
I guess I would have two responses.

[00:11:27] Speaker 03:
The first is, that's really not the issue today, which is whether we have proof of causation.

[00:11:31] Speaker 03:
That was the basis of the order.

[00:11:33] Speaker 04:
You can affirm on any basis at the record.

[00:11:36] Speaker 03:
And then the second argument would be that we don't think, we dispute that the problem was fixed at the Redlands dealership.

[00:11:43] Speaker 03:
Our position is that it wasn't.

[00:11:45] Speaker 04:
What's your evidence that it wasn't?

[00:11:48] Speaker 04:
If you want to rely on the sheet, the sheet says we put it at the appropriate level.

[00:11:54] Speaker 03:
But when our client talks to the dealership, the dealership said you need further work on your transmission, that this problem isn't fixed.

[00:12:01] Speaker 04:
In 2014?

[00:12:03] Speaker 03:
Yes, and that's in the deposition testimony.

[00:12:06] Speaker 00:
I think the problem with your case is that there is a suggestion at some point of an inherent design defect that even if you set it at the right level, it's still an overfilling issue.

[00:12:18] Speaker 00:
But at some point during the litigation, you need to sort of pick a theory and then piece all of the evidence together.

[00:12:26] Speaker 00:
And it sort of, in this case, it shifts.

[00:12:29] Speaker 00:
So I'm having a hard time piecing.

[00:12:32] Speaker 00:
together what is the theory inherent B-factors and overfilling that then got fixed and what evidence really ties into that.

[00:12:40] Speaker 00:
I'm sympathetic to why the district court struggled with the case.

[00:12:46] Speaker 03:
I understand as sort of like a theoretical matter or as a practical matter that that's an issue to struggle with.

[00:12:53] Speaker 03:
But I don't think it's a struggle as a legal matter because the district court found there was no evidence of an inherent defect.

[00:13:00] Speaker 03:
And again, when it came up on the first summary judgment motion and when it came up,

[00:13:04] Speaker 03:
this court affirmed that portion of the ruling.

[00:13:07] Speaker 03:
So as a matter of law, there's no evidence of another defect.

[00:13:11] Speaker 03:
So it can't be another defect that caused the recurring problems with the transition.

[00:13:16] Speaker 04:
But your expert says, and I think I'm summarizing this correctly, so correct me if I'm wrong.

[00:13:21] Speaker 04:
Your expert says the problem is, I'm not sure how to describe the defect, because your theory changes through the trial.

[00:13:27] Speaker 04:
First it's the specifications in the manual, and later on it's something else.

[00:13:31] Speaker 04:
But your expert says, and I think he's right,

[00:13:34] Speaker 04:
The defect is that if you fill this too high, the transmission doesn't work.

[00:13:39] Speaker 04:
It works perfectly well, he says, if filled at certain levels.

[00:13:44] Speaker 04:
And so the evidence is, the only evidence is that in 2014, it was filled at a level that your expert says was okay.

[00:13:53] Speaker 04:
So how was it defective thereafter?

[00:13:56] Speaker 03:
And so again, I disagree, not only because our client continued to experience the defect after, but also because the mechanic themselves said that the transmission needed further work.

[00:14:09] Speaker 04:
But how can you remember your defect in this case is that the only defect that you plead, the only defect that you put in evidence about is that if the fluid level is too high, there will be a problem.

[00:14:25] Speaker 04:
You don't put any other evidence in about any other defect in the transmission.

[00:14:29] Speaker 04:
So that's the theory of the case.

[00:14:31] Speaker 04:
It's all about fluid level.

[00:14:33] Speaker 04:
So once the fluid level is lowered, how is there a defect in the transmission?

[00:14:37] Speaker 03:
Well, again, there's no evidence of any alternative causation of the defect symptoms.

[00:14:42] Speaker 00:
But is that your theory that it's an overfilling issue only?

[00:14:47] Speaker 03:
My understanding is to fix the fluid level defect, you have to actually crack open the transmission.

[00:14:53] Speaker 03:
But it is a problem with the level of the fluid in the transmission.

[00:14:57] Speaker 02:
That's my understanding.

[00:15:03] Speaker 02:
In looking at your expert, he says there are literally hundreds of different reasons why the vehicle could have this problem.

[00:15:12] Speaker 03:
Is this the cross-examination in deposition?

[00:15:16] Speaker 03:
So a few things.

[00:15:17] Speaker 03:
And we did deal extensively with the deposition testimony in our reply brief.

[00:15:22] Speaker 03:
But first off,

[00:15:23] Speaker 03:
He does repeatedly start to explain why the fluid level actually caused the defect in the vehicle, and then the deposition gets cut off.

[00:15:33] Speaker 03:
So if you look at the pages that you're referencing, and particularly 4ER772 and 4ER773,

[00:15:40] Speaker 03:
He begins to explain why the fluid level defect caused this problem, and then he's cut off mid-explanation, right?

[00:15:47] Speaker 03:
So I don't think that deposition testimony is actually particularly helpful or stands for the proposition that you believe it does, Your Honor.

[00:15:53] Speaker 03:
But even if it did, there's this Ninth Circuit case, Beeler v. Klepp, that we cite in our brief, 633-F2D-531, that says that you cannot win summary judgment simply through cross-examining an opposing expert.

[00:16:07] Speaker 03:
And so I think relying on this sort of cross-examination, which again is incomplete and doesn't actually provide what the experts said, is unfair.

[00:16:19] Speaker 00:
All right, thank you, counsel.

[00:16:20] Speaker 00:
Our questions actually took you a little over time, but I'll give you two minutes back on rebuttal.

[00:16:24] Speaker 03:
Okay, thank you so much, your honor.

[00:16:30] Speaker 01:
Good morning, your honor.

[00:16:32] Speaker 01:
May it please the court?

[00:16:35] Speaker 01:
My name is Tom Azar.

[00:16:37] Speaker 01:
I represent defendant at the FCA US.

[00:16:40] Speaker 01:
And so something I want to.

[00:16:44] Speaker 01:
Because I think the court has hit on some key issues with regard to what is the defect theory in this case.

[00:16:50] Speaker 02:
And I want to... I think the big issue is, in a summary judgment review, why is there no material issue of fact, genuine material issue of fact here, from your perspective?

[00:17:05] Speaker 01:
Your Honor, let me address that by an analogy, and then let me explain how the different pieces fit together.

[00:17:12] Speaker 01:
So tomorrow I file a lawsuit and I sue grape nut cereal and I say grape nut cereal is defective.

[00:17:21] Speaker 01:
And I say grape nut cereal is bad.

[00:17:23] Speaker 01:
I have an expert who will say it causes obesity.

[00:17:27] Speaker 01:
I even attach a picture of myself.

[00:17:29] Speaker 01:
I'm definitely not in shape.

[00:17:31] Speaker 01:
And then I submit that to the court.

[00:17:34] Speaker 01:
There's still a crucial piece missing.

[00:17:37] Speaker 01:
Did I ever eat grape nuts?

[00:17:40] Speaker 04:
What plainly said- Well, see, what's strange about this case, and Judge Wynn points out that it comes up to us after a lot of wrangling, is if you buy a box of grape nuts and they're deficient, then you haven't gotten what you paid for.

[00:17:56] Speaker 04:
And there ought to be a theory of damages.

[00:17:58] Speaker 04:
If you buy a car with a transmission that's deficient in some way,

[00:18:04] Speaker 04:
even if it's even because of the filling issue, then you haven't gotten what you paid for.

[00:18:09] Speaker 04:
Normally we would give you benefit of the bargain damages in such a case.

[00:18:14] Speaker 04:
So if this case were at an earlier stage, I would say the evidence that the transmission is defective means that the plaintiff didn't get what he paid for and there ought to be some measure of damages.

[00:18:29] Speaker 04:
What's troubled me about this case is that we're not at that early stage.

[00:18:32] Speaker 04:
But don't you agree if we were at that stage, summary judgment, he wouldn't have to show that it actually caused him a problem.

[00:18:38] Speaker 04:
He just bought something that it wasn't worth as much as it should have been.

[00:18:43] Speaker 01:
Your Honor, I think definitely at the pleading stage, an allegation of that would be totally sufficient.

[00:18:47] Speaker 04:
Or even at the summary judgment stage.

[00:18:49] Speaker 04:
But somebody who buys a defective product doesn't need to be injured by it.

[00:18:53] Speaker 04:
It doesn't need to cause him a problem.

[00:18:55] Speaker 04:
It's just he hasn't gotten what he paid for.

[00:18:58] Speaker 01:
I think that's definitely an argument that could be made.

[00:19:03] Speaker 01:
Here, though, the situation is a little bit different.

[00:19:06] Speaker 01:
Because here, so the defect theory mutated through a couple different variations.

[00:19:12] Speaker 01:
It started off with it didn't have this external cooler.

[00:19:15] Speaker 01:
Turns out the external cooler is actually on the vehicle.

[00:19:19] Speaker 01:
It then changed to, or part of that first, the preliminary expert report of Mr. Stapleford

[00:19:26] Speaker 01:
was then the level specified on the dipstick.

[00:19:30] Speaker 04:
Right.

[00:19:31] Speaker 04:
And then we learned that this one didn't have a dipstick.

[00:19:32] Speaker 01:
There's no dipstick.

[00:19:34] Speaker 01:
So what Mr. Stableford switched it to is this.

[00:19:38] Speaker 01:
This is what they referred to as the service procedure.

[00:19:41] Speaker 01:
Because you're right.

[00:19:42] Speaker 01:
I believe one of your honors pointed out they don't claim that there's some inherent problem at this point in the case with the transmission.

[00:19:52] Speaker 01:
They say this service procedure that FCA gives to dealerships when they're gonna service the transmission or do a repair to it, that this service procedure, basically, when you do the procedure, you have to plug it into a computer, you get the temperature, you use a special dipstick, because there isn't one, you take the measurement, you compare them on this chart.

[00:20:15] Speaker 01:
Mr. Stapleford says the high ranges at each temperature are wrong, but the low levels are right.

[00:20:23] Speaker 01:
And that's what he proposes for his repair.

[00:20:26] Speaker 01:
So this service procedure, plaintiffs have never argued and submitted no evidence that this procedure is used when vehicles are created, when vehicles are built.

[00:20:40] Speaker 01:
And it's not.

[00:20:40] Speaker 04:
Well, there is some evidence, though.

[00:20:42] Speaker 04:
And my problem is they've failed to argue it to us and maybe to the district judge.

[00:20:47] Speaker 04:
But they do have the service sheet.

[00:20:50] Speaker 04:
from the first 2014 service, which says the transmission level is high.

[00:20:56] Speaker 04:
And they have testimony from their client, who says, I never changed it from the time I bought it until the time they looked at it.

[00:21:03] Speaker 04:
So wouldn't that suggest that it was filled too high at manufacture?

[00:21:07] Speaker 01:
Well, two points, Your Honor.

[00:21:08] Speaker 01:
So the dealership finds that in the 2014 repair, the dealership finds, OK, we look at the transmission because they're taking it apart because they're doing a transmission-related repair, the cooler bypass valve.

[00:21:20] Speaker ?:
Right.

[00:21:20] Speaker 01:
So there is a reason why.

[00:21:23] Speaker 01:
I mean, this is the first of two.

[00:21:25] Speaker 01:
Well, no.

[00:21:25] Speaker 04:
I know what they're doing.

[00:21:26] Speaker 04:
Don't they say in the 2014 technician report, the fluid level is at the level that their expert says would cause a problem?

[00:21:37] Speaker 01:
Yes.

[00:21:37] Speaker 04:
Okay, then they adjust it.

[00:21:40] Speaker 01:
They say they adjust it.

[00:21:41] Speaker 04:
Then they adjust it.

[00:21:42] Speaker 04:
And they bring it down to the level where their expert says wouldn't cause a problem.

[00:21:46] Speaker 04:
Correct.

[00:21:46] Speaker 04:
Okay, so isn't that evidence that it left the factory at too high a level?

[00:21:51] Speaker 01:
It may very well have, Your Honor, but the point I'm trying to make is not that, I mean, because all parts have tolerances.

[00:21:57] Speaker 01:
These components are going to have, I mean, that's when the vehicles are built, that's why there is a range and not a specific number.

[00:22:03] Speaker 01:
Because there's tolerances of the component for how much fluid you're going to have.

[00:22:09] Speaker 01:
You're never going to get it precisely right.

[00:22:11] Speaker 01:
And so at the time of manufacturing, there is evidence in the record of this, and it's undisputed evidence.

[00:22:17] Speaker 01:
Or I should say it's uncontradicted.

[00:22:18] Speaker 01:
There's nothing to the contrary at ER0196.

[00:22:23] Speaker 01:
This procedure with the measuring and the temperatures and the ranges is not how these components are created.

[00:22:30] Speaker 04:
No, I understand that.

[00:22:31] Speaker 04:
And you're arguing the class action.

[00:22:33] Speaker 04:
And I'm trying to think about Mr. Zulsdorf's case.

[00:22:36] Speaker 04:
Yes, sir.

[00:22:37] Speaker 04:
There may not be a good class action here.

[00:22:39] Speaker 04:
Mr. Zulsdorf may have a claim for $24 or maybe not.

[00:22:44] Speaker 04:
There is evidence that when he arrives at the dealership in 2014, the level of his transmission fluid is too high by his expert's reckoning, correct?

[00:22:54] Speaker 01:
Correct.

[00:22:55] Speaker 01:
Okay.

[00:22:55] Speaker 04:
And there's no evidence that it was changed between the time it left the factory and the time that he got to the dealership.

[00:23:02] Speaker 04:
So isn't that some evidence that Mr. Zulsdorf's car, not the class of cars,

[00:23:07] Speaker 04:
had a transmission fluid level that was too high.

[00:23:10] Speaker 01:
And it certainly could.

[00:23:11] Speaker 01:
That could be construed that way.

[00:23:12] Speaker 01:
But that's not the defect that plaintiffs are trying to bring.

[00:23:15] Speaker 01:
Because plaintiffs have chosen the defect theory, specifically as you point out, Your Honor, this is a class action case.

[00:23:21] Speaker 01:
They've chosen their defect theory with an eye towards class actions, with an eye towards class certification.

[00:23:27] Speaker 01:
And so they have chosen to make it about this, the service manual procedure.

[00:23:33] Speaker 01:
which is not how the vehicles are created.

[00:23:37] Speaker 01:
It's not used often.

[00:23:38] Speaker 01:
These vehicles, the owner's manual, user's guide, the reason the vehicle doesn't have a dipstick is because you're not supposed to check the transmission fluid very often.

[00:23:49] Speaker 01:
It's not supposed to be a thing that happens very often.

[00:23:52] Speaker 01:
You don't actually, unless you have a, you know, the vehicle has a use cycle like a police cruiser, you don't even change it until after 120,000 miles.

[00:24:02] Speaker 01:
So plaintiffs have chosen to make this case about this service procedure, that a dealership, not about the creation of vehicles, but what a dealership would do.

[00:24:13] Speaker 04:
Is a service procedure a product defect?

[00:24:17] Speaker 01:
It's different.

[00:24:17] Speaker 01:
I've been trying to wrap my head around that.

[00:24:19] Speaker 04:
That's why I've been asking.

[00:24:20] Speaker 04:
The judge says, I assume there's a defect.

[00:24:23] Speaker 04:
We, in the last time through, say, we assume there's a defect.

[00:24:26] Speaker 04:
We're only looking at what the measure of damage is for the defect is.

[00:24:32] Speaker 04:
But didn't they at least introduce evidence from which a reasonable finder of fact could find that the defect is that the transmission was designed in such a way that a lower fluid level, a higher fluid level would cause it to overheat?

[00:24:48] Speaker 01:
They haven't really gone there, Your Honor, and I assume the reason is because

[00:24:53] Speaker 01:
The problem with saying your defect would be something was filled too high is that, I mean, there's all sorts of things on any product, especially a vehicle, that you could fill too high.

[00:25:03] Speaker 01:
Like, is an engine defective if it's gonna malfunction if the oil, if too much oil is put in?

[00:25:10] Speaker 01:
I would say that's not a product defect.

[00:25:12] Speaker 01:
What this case is about is a service manual defect that might or might not be applied, and what plaintiffs have is no evidence.

[00:25:21] Speaker 04:
Okay, but let's go back, let's assume that it is a service manual defect.

[00:25:25] Speaker 04:
The car is serviced in 2014.

[00:25:29] Speaker 04:
And again, I'm looking at this, I don't know why nobody makes a big deal of it, but the worksheet says we service it and we put it at a level

[00:25:39] Speaker 04:
that is consistent with their expert's report that it would function okay.

[00:25:44] Speaker 04:
Correct?

[00:25:45] Speaker 01:
Correct, Your Honor.

[00:25:46] Speaker 04:
Okay.

[00:25:46] Speaker 04:
So do they have damages up to that?

[00:25:49] Speaker 04:
I'm having difficulty seeing damages from the defect after that point for Mr. Zulsdorf's car.

[00:25:55] Speaker 04:
There may be class members who have other problems.

[00:25:59] Speaker 04:
doesn't he have damages up to that point?

[00:26:02] Speaker 01:
If he was pursuing a defect theory that every vehicle was filled too high or that his vehicle was filled too high but that's not... His was.

[00:26:11] Speaker 04:
There's evidence that his was.

[00:26:14] Speaker 04:
If he had to pay for the adjustment of the fluid would he have a claim for $24?

[00:26:23] Speaker 01:
If he had to pay for the adjustment of the fluid

[00:26:27] Speaker 01:
that gets complicated.

[00:26:28] Speaker 01:
I'm probably making it too complicated, because the vehicle's under warranty at that point.

[00:26:32] Speaker 01:
That's right.

[00:26:32] Speaker 04:
No, I want to come back to it.

[00:26:34] Speaker 04:
But let's assume no warranty.

[00:26:35] Speaker 04:
So he's got a problem.

[00:26:36] Speaker 04:
It's filled too high.

[00:26:37] Speaker 04:
He's got evidence it's filled too high.

[00:26:39] Speaker 04:
They've got to do something to adjust it down, and they charge him for that.

[00:26:44] Speaker 04:
That would be

[00:26:46] Speaker 04:
damage to him, would it not?

[00:26:47] Speaker 01:
I believe so, Your Honor.

[00:26:49] Speaker 01:
I believe that would be damage to him.

[00:26:51] Speaker 01:
I mean, there would be lots of other issues.

[00:26:53] Speaker 04:
Okay, and then you say it was under warranty.

[00:26:55] Speaker 01:
But right, correct.

[00:26:55] Speaker 01:
The vehicle's under warranty at that point.

[00:26:57] Speaker 04:
There's another issue that nobody argues in the briefing does, which is that even if there was damage, he didn't suffer it because they fixed it for free.

[00:27:05] Speaker 01:
Correct, Your Honor.

[00:27:05] Speaker 01:
In the renewed summary judgment motion, mindful of getting wrapped on the wrist for trying to raise anything new, we kept it specifically to anything we'd raised in the prior summary judgment motion.

[00:27:20] Speaker 01:
And damages had already been addressed by this court.

[00:27:23] Speaker 01:
So we were not going to present that again and try again with maybe better or different arguments.

[00:27:31] Speaker 01:
But the causation issue, and this is what Judge Bernal points to, he points to, okay, you've got a service manual procedure.

[00:27:42] Speaker 01:
There's a lot of ways that a plaintiff could show that procedure impacted it, or impacted this plaintiff.

[00:27:49] Speaker 01:
You could show it was used to fill the vehicle in the first instance when it was built.

[00:27:55] Speaker 01:
You could show it was used at some point.

[00:27:57] Speaker 01:
You could show later on the vehicle's

[00:28:00] Speaker 01:
was serviced and that its fluid level jumped, suggesting that someone at some dealership raised the level, you know, followed the allegedly erroneous service manual.

[00:28:12] Speaker 01:
But after Judge Bernal goes through all those options, he correctly points out there's no evidence of any of that.

[00:28:18] Speaker 04:
Because the only time it was serviced was 2014.

[00:28:23] Speaker 04:
Correct.

[00:28:23] Speaker 04:
And there's no evidence that the manual

[00:28:26] Speaker 04:
that it was filled too high at that point.

[00:28:30] Speaker 01:
Correct, Your Honor.

[00:28:30] Speaker 01:
They looked at something else.

[00:28:32] Speaker 01:
They looked at something different than the service manual.

[00:28:34] Speaker 01:
There's different ways.

[00:28:36] Speaker 01:
I mean, obviously, there's lots of guidance kicking around in the company to help a mechanic.

[00:28:40] Speaker 01:
The mechanic is the expert on the scene.

[00:28:41] Speaker 01:
The mechanic is the person trusted to figure out what's wrong.

[00:28:45] Speaker 01:
FCA gives lots of guidance to mechanics in the form of service manuals and other sorts of communications.

[00:28:50] Speaker 04:
But that's the... But you can see our problem with this case, at least mine.

[00:28:54] Speaker 04:
And I think you're hearing it from the other judges.

[00:28:56] Speaker 04:
It's hard to figure out in this case precisely what the alleged defect is.

[00:29:01] Speaker 04:
The other side says it's the transmission, but their expert says the transmission works fine as long as you don't fill it too high.

[00:29:09] Speaker 04:
You say it's the manual, but there's no evidence in this case that anybody ever looked at the manual.

[00:29:16] Speaker 04:
But it comes to us with the presupposition that there's a defect.

[00:29:21] Speaker 04:
So given that, what is the defect?

[00:29:25] Speaker 04:
You think it's the manual?

[00:29:26] Speaker 01:
I think the defect is the manual, Your Honor.

[00:29:28] Speaker 04:
How can a defect in a manual be a product defect?

[00:29:30] Speaker 04:
Isn't that just negligence?

[00:29:32] Speaker 01:
Well, it could be.

[00:29:33] Speaker 01:
I mean, because remember, plaintiffs are pursuing a variety of claims, consumer fraud.

[00:29:40] Speaker 01:
Essentially, I believe their theory is you had this bad service manual.

[00:29:46] Speaker 01:
You knew it was wrong.

[00:29:47] Speaker 01:
And you didn't correct it.

[00:29:50] Speaker 01:
And you sold me a product that's associated with that service manual.

[00:29:53] Speaker 01:
And therefore, I am entitled to damages.

[00:29:59] Speaker 01:
In terms of knowing what the defect is, I think the thing to look at is what plaintiffs submitted with their summary judgment opposition round two, which is Mr. Stableford's updated declaration.

[00:30:13] Speaker 01:
And what he says is that the vehicles were sold with specifications, and he specifically refers to this.

[00:30:23] Speaker 01:
that caused, quote, technicians to set the transmission fluid level too high during maintenance and repair.

[00:30:31] Speaker 01:
He's not presenting opinions or opinion evidence about some general problem with the vehicle.

[00:30:40] Speaker 01:
As you rightly point out, he agrees.

[00:30:43] Speaker 01:
He thinks the lower levels of the chart are just right.

[00:30:47] Speaker 01:
What he's saying is this chart, because it has these higher levels,

[00:30:53] Speaker 01:
Therefore, there is.

[00:30:54] Speaker 01:
I don't know if we want to call it a service manual defect or something like that, but therefore there's a problem and that's causing and the suggestion is that caused Mr. Sewell stores vehicles problems, but there's just no evidence to tie that together.

[00:31:11] Speaker 01:
There's no evidence to show that Mr. Sewell store didn't eat the great nuts from my dumb example.

[00:31:19] Speaker 01:
You have a service manual procedure.

[00:31:20] Speaker 01:
Mr. Stapleford says is wrong,

[00:31:23] Speaker 01:
You have a issue that Mr. Stableford says a lot of issues can be the cause of, but you don't have that connection.

[00:31:32] Speaker 01:
Thank you, Your Honors.

[00:31:33] Speaker 00:
Thank you, Council.

[00:31:40] Speaker 03:
Logan, Your Honors, a few quick just document references to follow up.

[00:31:45] Speaker 03:
And then if there are any further questions, I'm happy to take them.

[00:31:47] Speaker 03:
So first, referring to the same report from Mr. Staplesford, he said that all of the class vehicles suffer from a design defect, which is the defect that he discussed.

[00:31:58] Speaker 03:
So that's on 8ER1862.

[00:32:00] Speaker 03:
So it's not a problem in just some vehicles.

[00:32:02] Speaker 03:
It's in all class vehicles.

[00:32:03] Speaker 03:
And it is a design defect, according to Mr. Staplesford.

[00:32:07] Speaker 03:
Second, I just wanted to cite, because Judge Hurwitz, you were having the issue about whether we had talked about Exhibit R to the Zoolsdorf Declaration in the court below, and I apologize, we certainly didn't mention it, except I think in our reply briefing briefly.

[00:32:22] Speaker 03:
And so I just wanted to point out, and I didn't find it in the appellate record, but I found it in the actual motion, which we know is part of the record.

[00:32:29] Speaker 03:
In our opposition to their renewed summary judgment motion on pages three and four, we basically cite to it continuously, because it's in plaintiff's statement of fact,

[00:32:38] Speaker 03:
of disputed and undisputed fact, 21, 22, 23, and 24.

[00:32:41] Speaker 03:
So we do cite it on pages three and four of that brief.

[00:32:46] Speaker 03:
And I only have 50 seconds, but if you want supplemental briefing, I can find the citation in the report.

[00:32:51] Speaker 04:
No, I was, I mean, one of the difficulties is it wasn't cited in your appellate brief, at least in your opening brief.

[00:33:00] Speaker 04:
But put that aside for a second.

[00:33:02] Speaker 04:
So let's assume that the transmission

[00:33:06] Speaker 04:
is defective.

[00:33:07] Speaker 04:
Its defect, I take it, is that if filled too high, it will overeat.

[00:33:13] Speaker 03:
Which is the level that it's filled at when it rolls off the lot.

[00:33:15] Speaker 04:
Well, is there any evidence of that?

[00:33:18] Speaker 03:
I think that's what Stapleford is saying in his report.

[00:33:20] Speaker 03:
No, he doesn't.

[00:33:20] Speaker 04:
He says, I have no idea when it was filled out, when it rolls off the lot.

[00:33:26] Speaker 04:
But let's assume for a moment that in Mr. Zulsdorf's case, the technician report gives you some evidence that it had a problem when it rolled off the lot.

[00:33:37] Speaker 03:
And all the symptoms that were caused by it and all of the other things.

[00:33:41] Speaker 03:
At least in 2014.

[00:33:44] Speaker 04:
But they fix it.

[00:33:46] Speaker 04:
They put it at a lower level.

[00:33:48] Speaker 04:
And you've got no testimony from any expert that if this is filled to a lower level, that it's defective.

[00:33:57] Speaker 03:
And again, I think we're going in circles here a little bit, but our position is that it wasn't fixed correctly.

[00:34:02] Speaker 03:
They told them it wasn't fixed correctly.

[00:34:04] Speaker 04:
But the only evidence you have, this report, says it was lowered to a specific level.

[00:34:11] Speaker 04:
And that's a level at which your expert says the transmission functions fine.

[00:34:16] Speaker 04:
So since that's the evidence you're relying on, I guess my question is,

[00:34:22] Speaker 04:
Wasn't it fixed in 2014 by your own, by the evidence in this case?

[00:34:29] Speaker 03:
I don't think so, Your Honor, and I think the evidence that the problem persisted after that shows that it wasn't fixed.

[00:34:33] Speaker 04:
Well, but the problem, you can see that the problem can be caused by many causes.

[00:34:38] Speaker 04:
But there's no evidence of any other cause.

[00:34:41] Speaker 04:
But what we've done in 2014 is remove the only cause that you rely on, which is that the transmission fluid might be filled to too high a level.

[00:34:51] Speaker 04:
So after 2014, you've got no evidence at all that the cause

[00:34:55] Speaker 04:
is the transmission fluid level.

[00:34:57] Speaker 04:
Tell me that.

[00:34:58] Speaker 03:
I guess if we accept as true that the transmission, assuming what your honor says is true.

[00:35:04] Speaker 03:
That's what the report says.

[00:35:07] Speaker 03:
So then we don't know that it actually was

[00:35:11] Speaker 03:
taken to that level.

[00:35:12] Speaker 03:
We would have to take the report at its word for that proposition.

[00:35:14] Speaker 04:
Well, you can't ask us to take the report at its word for purposes of your case and then say, but somebody might disbelieve it for another case.

[00:35:23] Speaker 04:
There's no evidence that the report isn't accurate.

[00:35:26] Speaker 03:
I think that that's common in civil litigation, to question a witness for some part of their testimony, but not for another part of their testimony, for example.

[00:35:33] Speaker 00:
So our questions took your time, but let me ask you one final question.

[00:35:37] Speaker 00:
I don't remember looking at it in the record.

[00:35:40] Speaker 00:
Did you put forth any specific evidence that your plaintiff actually had hit the transmission service before 2014?

[00:35:49] Speaker 00:
Before he experienced this issue, was it taken to the service station where a technician might have

[00:35:55] Speaker 03:
I don't believe so if it if it turns out actually just let me ask my co-counsel really briefly because I looked in the record for that too thank you thank you thank you both for your argument today the matter submitted