I've said it before and I'll say it again...Sedgwick LLP sued for the wrong thing.
Capacity loss in these cars is primarily due to heat. It is occurring because (and it's clear now, even if it wasn't then) the battery pack cells are under-engineered against it. Did Nissan and/or Polypore know about this? Well, Polypore had been using ceramic separators in battery cells for at least a decade before it began building them for the LEAF, just for these reasons; and GM had been using ceramic coated separators in the Volt's cells all along. So I'm guessing that someone along the line must have suggested them to Nissan, or at least asked if they wanted to go that route. And I suspect that this is the smoking gun in this case from a discovery point of view, had the job been done properly.
To put it clearly...Nissan built a bad pack, and the losses that are occurring should be covered under the materials and workmanship clause in the existing 8 year/100,000 mile warranty. Not a new warranty featuring a set of terms that end up being the most beneficial to Nissan.
Now with respect to Sedgwick's rebutal of Judge Kozinksi's objection, there are a couple of things I take issue with, some of which have already been mentioned by other posters:
1) The use of the phrase "high ambient temperatures" on the first page make it appear that only very hot states are having this issue. We all know that even cars in what I personally would term "moderately hot" regions (warm really) are experiencing vastly accelerated capacity loss. And the worst part of the Nissan new warranty offer is the appearance that it may have been engineered to exclude those in "moderately hot" regions, who will still not get the serviceable lifespan "promised" (or suggested, if you think the term promised is unfair) by Nissan executives, but will not qualify for the new warranty because they will reach the required threshold outside of the warranty period.
2) On page four they suggest that this suit is "not a product liability case or one about vehicle design. It was a failure to disclose action related to misrepresentations and omissions by NNA concerning the LEAF's driving range and battery capacity". PRECISELY...YOU SUED FOR THE WRONG THING. And this is why many of us opted out.
3) Later in that same paragraph they talk about how NNA "provided customers with a bounty of accurate information about this vehicles and what they could expect from their batteries". What a minute...am I reading a filing from the plaintiffs' council or the defendants? Or does it simply not matter to Sedgwick, so long as they get their cut of the settlement? In any event, statements on the record were made with respect how long battery packs should last, WITHOUT any reference to there being a geographical or meteorological caveat. These statements turned out to be categorically wrong in all instances with the exception of vehicles residing in the Pacific Northwest.
4) Still on page four..."If widespread range or capacity issues existed, Plaintiffs’ counsel would have known of it. As NNA reported publicly, and as the data discussed below confirms, reduced battery capacity complaints were focused in the hot weather state of Arizona." Well, they may have been in early 2012, but a lot of hot weather has gone under the bridge since then. Is counsel trying to tell us that they haven't bothered doing any more discovery on this issue since the case was first filed? That doesn't seem very professional to me!
5) Page six..."NNA used the consideration in this case - the enhanced warranty - to demonstrate commitment to customer satisfaction and confidence in the battery. These have been good outcomes for LEAF owners and for NNA." I'll refer you back to point one - good for NNA; good for some owners on the extremes; bad for owners that are destined to just miss out.
6) Page seven..."Despite the above facts, there is no doubt that Objectors’ papers voice dissatisfaction with Nissan and their LEAF. However, they make no allegation - and NNA records do not reflect - that they ever contacted Nissan to complain about (1) the range they were getting with their LEAF, (2) any charging limitations, (3) any battery capacity loss or (4) any concern that the disclosures they signed were inadequate or incomplete." Perhaps the objectors did not contact Nissan to complain about range issues, but Sedgwick would find no shortage of other owners that had voiced complaints to Nissan on these issues.
7) Page eight. As has already been pointed out, the inclusion of a statement of satisfaction from a LEAF owner in the PNW (and thanks for that, BTW, Mr. Silvan! :evil: ) is completely disingenuous (bordering deceitful) and out of context when it comes to the thrux of the issue.
8) Page nine. Don't even get me started on the redacted stuff!
9) Also page nine and into page ten. The quotation from the disclosure we signed. OK, so it supposedly talks about the reduced time frame of 5 years to 80%. Now I'm going to have to go back through my records and look at exactly what I signed (was the 5 year language in the disclosure for the very first cars delivered?). But the fact remains that a) my car is down to 80% in under 3 years, not 5. I haven't exposed the car to "very high temperatures for extended periods of time" (and I remember the manual talks about 24 hours as being an "extended period of time"); my car has only had 8 quick charges in those 3 years; and I have driven it quite moderately. We have also seen those who have babied their packs lose capacity in a not dissimilar way to those who have been less than careful. So whatever the magic is...clearly none of us in a warm to hot climate has been able to master it.
10) Page eleven...This page talks about how the new warranty doesn't negate the old warranty, and how it is "most likely to be used by those persons whose environment or driving habits do cause accelerated degradation of battery capacity." I guess the part of this that gets me (and again I'll refer you back to point one) is that it is likely to only cover a small percentage of those who have seen accelerated degradation of their battery packs. And a percentage that is, in my opinion, way too favorable for Nissan, given the circumstances.
11) Page twelve..."NNA did not ask to be sued, nor did it select its adversaries. Perhaps if it had been less vocal in communicating with its customers about issues of common concern, no action would have been filed at all." Hah! Dream on. One or more of us would have gotten tired of Nissan's stonewalling sooner or later.
12) Page twelve...."Nevertheless, NNA settled this case based on the same paradigm that many other motor vehicle class action lawsuits have been resolved: providing LEAF owners with assurance that they purchased an excellent vehicle on which they can count for years to come. Nissan has made good on its promises..." Oh yeah? What about that promise for a battery price? I won't be assured that I can count on my vehicle for years to come until I can buy a new battery pack for it. End of story!
Capacity loss in these cars is primarily due to heat. It is occurring because (and it's clear now, even if it wasn't then) the battery pack cells are under-engineered against it. Did Nissan and/or Polypore know about this? Well, Polypore had been using ceramic separators in battery cells for at least a decade before it began building them for the LEAF, just for these reasons; and GM had been using ceramic coated separators in the Volt's cells all along. So I'm guessing that someone along the line must have suggested them to Nissan, or at least asked if they wanted to go that route. And I suspect that this is the smoking gun in this case from a discovery point of view, had the job been done properly.
To put it clearly...Nissan built a bad pack, and the losses that are occurring should be covered under the materials and workmanship clause in the existing 8 year/100,000 mile warranty. Not a new warranty featuring a set of terms that end up being the most beneficial to Nissan.
Now with respect to Sedgwick's rebutal of Judge Kozinksi's objection, there are a couple of things I take issue with, some of which have already been mentioned by other posters:
1) The use of the phrase "high ambient temperatures" on the first page make it appear that only very hot states are having this issue. We all know that even cars in what I personally would term "moderately hot" regions (warm really) are experiencing vastly accelerated capacity loss. And the worst part of the Nissan new warranty offer is the appearance that it may have been engineered to exclude those in "moderately hot" regions, who will still not get the serviceable lifespan "promised" (or suggested, if you think the term promised is unfair) by Nissan executives, but will not qualify for the new warranty because they will reach the required threshold outside of the warranty period.
2) On page four they suggest that this suit is "not a product liability case or one about vehicle design. It was a failure to disclose action related to misrepresentations and omissions by NNA concerning the LEAF's driving range and battery capacity". PRECISELY...YOU SUED FOR THE WRONG THING. And this is why many of us opted out.
3) Later in that same paragraph they talk about how NNA "provided customers with a bounty of accurate information about this vehicles and what they could expect from their batteries". What a minute...am I reading a filing from the plaintiffs' council or the defendants? Or does it simply not matter to Sedgwick, so long as they get their cut of the settlement? In any event, statements on the record were made with respect how long battery packs should last, WITHOUT any reference to there being a geographical or meteorological caveat. These statements turned out to be categorically wrong in all instances with the exception of vehicles residing in the Pacific Northwest.
4) Still on page four..."If widespread range or capacity issues existed, Plaintiffs’ counsel would have known of it. As NNA reported publicly, and as the data discussed below confirms, reduced battery capacity complaints were focused in the hot weather state of Arizona." Well, they may have been in early 2012, but a lot of hot weather has gone under the bridge since then. Is counsel trying to tell us that they haven't bothered doing any more discovery on this issue since the case was first filed? That doesn't seem very professional to me!
5) Page six..."NNA used the consideration in this case - the enhanced warranty - to demonstrate commitment to customer satisfaction and confidence in the battery. These have been good outcomes for LEAF owners and for NNA." I'll refer you back to point one - good for NNA; good for some owners on the extremes; bad for owners that are destined to just miss out.
6) Page seven..."Despite the above facts, there is no doubt that Objectors’ papers voice dissatisfaction with Nissan and their LEAF. However, they make no allegation - and NNA records do not reflect - that they ever contacted Nissan to complain about (1) the range they were getting with their LEAF, (2) any charging limitations, (3) any battery capacity loss or (4) any concern that the disclosures they signed were inadequate or incomplete." Perhaps the objectors did not contact Nissan to complain about range issues, but Sedgwick would find no shortage of other owners that had voiced complaints to Nissan on these issues.
7) Page eight. As has already been pointed out, the inclusion of a statement of satisfaction from a LEAF owner in the PNW (and thanks for that, BTW, Mr. Silvan! :evil: ) is completely disingenuous (bordering deceitful) and out of context when it comes to the thrux of the issue.
8) Page nine. Don't even get me started on the redacted stuff!
9) Also page nine and into page ten. The quotation from the disclosure we signed. OK, so it supposedly talks about the reduced time frame of 5 years to 80%. Now I'm going to have to go back through my records and look at exactly what I signed (was the 5 year language in the disclosure for the very first cars delivered?). But the fact remains that a) my car is down to 80% in under 3 years, not 5. I haven't exposed the car to "very high temperatures for extended periods of time" (and I remember the manual talks about 24 hours as being an "extended period of time"); my car has only had 8 quick charges in those 3 years; and I have driven it quite moderately. We have also seen those who have babied their packs lose capacity in a not dissimilar way to those who have been less than careful. So whatever the magic is...clearly none of us in a warm to hot climate has been able to master it.
10) Page eleven...This page talks about how the new warranty doesn't negate the old warranty, and how it is "most likely to be used by those persons whose environment or driving habits do cause accelerated degradation of battery capacity." I guess the part of this that gets me (and again I'll refer you back to point one) is that it is likely to only cover a small percentage of those who have seen accelerated degradation of their battery packs. And a percentage that is, in my opinion, way too favorable for Nissan, given the circumstances.
11) Page twelve..."NNA did not ask to be sued, nor did it select its adversaries. Perhaps if it had been less vocal in communicating with its customers about issues of common concern, no action would have been filed at all." Hah! Dream on. One or more of us would have gotten tired of Nissan's stonewalling sooner or later.
12) Page twelve...."Nevertheless, NNA settled this case based on the same paradigm that many other motor vehicle class action lawsuits have been resolved: providing LEAF owners with assurance that they purchased an excellent vehicle on which they can count for years to come. Nissan has made good on its promises..." Oh yeah? What about that promise for a battery price? I won't be assured that I can count on my vehicle for years to come until I can buy a new battery pack for it. End of story!
Very inefficient.
