Some Nissan drivers were feeling shaken — in more ways than one.
Owners of Pathfinders and Infinitis asked for repairs after they discovered that stepping on the gas led their transmissions to shake and jerk violently, preventing them from accelerating, they claimed. But Nissan North America couldn’t fix the problem, or in some cases even confirm that it existed, according to a federal lawsuit.
After two and a half years of litigation, a Miami federal judge gave final approval to a nationwide class action settlement providing extended warranties to owners of the affected cars. The agreement, which also includes a cash component for class members who already sold their cars, is worth at least $37 million, according to court documents.
As part of the settlement, Nissan certified that it identified the software issue causing the shaking and that a transmission repair was available.
“It was essential that Nissan had a fix; otherwise, the extension of the warranty would mean nothing,” said Miami attorney Ronald Weil of Weil Quaranta, who served as class counsel.
The alleged defect was found in a continuously variable transmission in 2013-14 Nissan Pathfinders and Infiniti JX35 and QX60s, according to the lawsuit. The shaking tended to happen when drivers were trying to speed up to merge into traffic, “creating a serious safety risk for the driver, the affected vehicles’ occupants, other drivers and pedestrians,” the complaint alleged.
Nissan was unable to replicate the problem in road testing, the company argued. But the plaintiffs alleged the company knew about the defect before any of the affected cars went on sale and that it was “secretly reprogramming” transmission control software without alerting anyone to the problem.
Settlement discussions in February 2016 with mediator Rodney Max ended in an impasse, and the lawsuit proceeded to the class certification stage. Nissan argued the plaintiffs could not bring their claims as a class because their situations differed too much: Some people brought in their cars for repairs several times, for instance, while others might have tried only once.
The plaintiffs presented 1,000 pages of evidence in favor of class certification, including testimony from Steven Gaskin, a marketing science expert who has developed a technique to calculate the potential economic damages of car owners who never saw the defect show up in their vehicles.
Plaintiffs counsel knew if Nissan was successful, the cost of litigating each plaintiff’s claims individually would likely outweigh any beneficial result, Weil said.
But after another mediation with Max of Upchurch Watson White & Max in Miami, Nissan agreed to offer an extended powertrain warranty to anyone who owns or leases one of the cars named in the settlement. The extension lasts 24 months or 24,000 miles, whichever comes first, and class members who already sold their cars will be offered a discount on any Nissan vehicle.
The benefit to the class is between $37 million and $99 million, according to the settlement documents.
A Nissan spokesperson did not respond to a request for comment on the settlement. The automaker was represented by E. Paul Cauley Jr. and S. Vance Wittie of Drinker Biddle & Reath in Dallas and Ramon Abadin of Sedgwick in Miami.
As part of final approval of the settlement, U.S. District Judge Robert Scola OK’d attorney fees of $3.75 million to class counsel from Weil Quaranta, the Cory Watson firm in Alabama, Newsome Melton in Orlando, Berger & Montague in Philadelphia and Capstone Law in Los Angeles. The judge also approved $5,000 awards for the named plaintiffs.
Case: Kenai Batista v. Nissan North America
Case No.: 1:14-CV-24728
Description: Automobile defect
Filing date: Dec. 15, 2014
Final approval of settlement date: June 28, 2017
Judge: U.S. District Judge Robert Scola
Plaintiffs attorneys: Ronald Weil, Miami, and Mary Olszewska, Los Angeles, Weil Quaranta; F. Jerome Tapley, Hirlye Lutz III and Adam Pittman, Cory Watson, Birmingham, Alabama; Richard Newsome and William Ourand, Newsome Melton, Orlando; Lawrence Deutsch and Jeffrey Osterwise, Berger & Montague, Philadelphia; Jordan Lurie, Capstone Law, Los Angeles
Defense attorneys: E. Paul Cauley Jr. and S. Vance Wittie, Drinker Biddle & Reath, Dallas; Ramon Abadin, Sedgwick, Miami
Settlement value: $37 million to $99 million