Up to Standards
- Subject: Lawsuit involving a transmission failure
- Essential Reading: Shop Owner, Center Manager, Rebuilder
- Author: Mike Weinberg, Rockland Standard Gear, Contributing Editor
With three different series set in Las Vegas, Miami and New York, “CSI” is one of the most-popular shows on network TV – so popular that the theme has changed courtrooms across America. Juries have come to believe what they see on TV, and although forensic labs do a great job using science to fight crime, it is much more difficult and time consuming in the real world than in Hollywood.
I own and operate Rockland Standard Gear and have been repairing transmissions, transfer cases and differentials for more than 50 years. I write technical articles for Transmission Digest and other trade publications, and I am the oldest professional race driver in the NASCAR Grand American Rolex Series. I also do consulting work for the major OE manufacturers. Over the years I have been retained as an expert witness defending OE manufacturers in transmission-related lawsuits. I work for only the manufacturers, because in the real world you cannot work for both sides of the street.
I thought you, as technicians involved in transmission repair, might like to follow a recent transmission-related lawsuit I was involved in, both to see how it really happens and to learn more about protecting yourselves and your business. The lawsuit you are about to read has been settled. All parties involved are subject to a confidentiality agreement. There are no names, dates or places, but I think the mysteries of the case will interest you.
Several years ago I got a call from the in-house counsel of a major corporation, one of whose divisions manufactured manual transmissions. The attorney said I had been recommended as an expert witness to help defend the company in a lawsuit involving one of its products. I was available and we discussed my credentials, fees and a little about the case. I overnighted my credentials and fee structure, and they presented it to their insurance carrier, which was assembling a team of defense experts. A few weeks later the insurance carrier’s attorneys told me I was hired, and they forwarded to me all the accumulated materials and depositions. After reading the material and becoming familiar with the case I informed the lawyers that in my professional opinion the plaintiff did not have a valid case and to establish a defense strategy.
Every manufacturer I have represented over the years has asked a primary question: “Are we at fault?” This is because trials are extremely expensive for both sides, and if the defendant is primarily at fault it will be cheaper to negotiate a settlement than to incur high legal fees. In this case, I could see no fault on the manufacturer’s part.
The basics of the suit
A young man had bought a mid-’80s American-made sports car. He then set about improving its performance so he could drag race with it. He changed the electronic ignition, wires and plugs and added an improved air-induction system and throttle bodies to improve engine breathing. Next he changed the camshaft and put on high-horsepower cylinder heads with high-output valves, rockers and springs that increased engine compression. Now he added a high-performance exhaust system that eliminated the catalytic converters. (Note: These modifications violate both state and federal emissions regulations for street-driven vehicles.) These modifications added about 100 horsepower and 100-150 lb.-ft. of torque to the stock 325- to 350-hp engine.
This car came from the factory with a four-speed manual transmission with an automatic overdrive unit. That transmission could not handle the engine’s increased horsepower and torque and began to fail. The plaintiff now bought from a major mail-order performance distributor a six-speed replacement transmission rated at 450 lb.-ft. of torque capacity and installed it himself.
This car was his daily driver, and about three months after installing the transmission he began to experience hard, notchy shifting. The plaintiff contacted the manufacturer, as the unit was new and under warranty. The manufacturer (soon to be defendant) asked him to remove the transmission and return it for repair or replacement under warranty. The plaintiff then said the car was his sole means of transportation and he did not want to be without transportation for several weeks.
The manufacturer asked him to drain the fluid, inspect the magnet on the drain plug for debris and call them back. The plaintiff did so and found metallic debris in the oil and a few needles that indicated failure of a thrust bearing. He still did not want to return the transmission. The manufacturer asked whether he wanted to disassemble the unit himself and it would provide the repair parts under the warranty. He did not remove the transmission but continued to drive the car. Soon after that an incident occurred that would provide the basis for a large, involved lawsuit.
The progression from warranty issues to major lawsuit:
One evening shortly after learning of the bearing failure, the owner was driving the car when a fire occurred inside it. From all accounts and evidence it was a flash fire originating in the console over the transmission tunnel where the shifter sits, which also contains the glove box. The fire lasted only a few minutes and badly damaged the driver’s seat, the console and glove box, and the headliner. The fire severely damaged the interior of the car and created second- and third-degree burns on the driver’s torso from the right hip to the right armpit.
According to the plaintiff’s deposition, he put out the fire, drove himself home and went to bed. The next morning he did not show up for work and his employer sent someone to check on him. The other employee, upon seeing his condition, took him to an emergency room, and he was subsequently transferred to a burn unit at another hospital for a prolonged stay, skin grafts and other medical treatment.
After his release several months later he sought legal advice and filed notice of intent to sue the transmission manufacturer. His attorney alleged that the transmission caused the fire and his injuries. I am learning all this from the depositions and have yet to see the vehicle for an evidentiary inspection. However, this scenario raises a number of questions: What could have caused such a flash fire within the car? Why was there no police report, no fire-service involvement and no tow truck called? How could someone suffering such injuries just drive the car home and go to bed? Was he drunk or drugged out enough not to realize the extent of his injuries? If the transmission started the fire, it was obviously not so badly damaged that he could not drive home.
Inspection of the vehicle and transmission
At this point the manufacturer’s insurance carrier had assembled its team of defense experts including me as transmission expert, a highly experienced arson investigator with top credentials, the manufacturer’s head engineer and the defense counsel. We flew to a laboratory retained by the plaintiff’s attorney for inspection of the transmission and later were taken to a body shop where the vehicle was stored. At the laboratory we learned that the plaintiff had removed the transmission from the car and stored it at his home in a plastic garbage bag. He had brought it separately to the lab for inspection on the date we arrived.
This in itself raised a legal issue for the defense, as there was now no clear chain of custody of the evidence. On all other cases I have been involved in the removal of the transmission was carried out in plain view of both sides’ assembled experts to ensure against any hint of tampering with the evidence. The defense attorney said he would take this up with the court as “spoilation of evidence” but that the court probably would not throw out the suit on that alone, and we would proceed with the evidence inspection.
The experts and attorneys for both sides were in the room. Both sides recorded the inspection procedure on videotape and in still photos. We opened the bag containing the transmission and placed the unit on a workbench. The unit had been drained when the plaintiff removed it. The manufacturer’s chief engineer identified the transmission from serial numbers as the unit the plaintiff had bought.
The unit showed no signs of having been opened previously and no signs of fire or heat damage. The outside of the cases showed a light film of oil and road dust consistent with any transmission in use for a few months. The rubber seals; O-rings; nylon locknuts; plastic speedometer housing and drive and driven gears; and the plastic transmission vent were pristine. These would have been damaged immediately if the fire had originated in the transmission.
I began to disassemble the unit. I removed the drain plug and captured a small vial of fluid still in the unit after it had been drained. The fluid was golden and translucent, showing no signs of heat, either internally or externally, from the transmission but was heavily contaminated with fine metallic debris.
I then proceeded with the rest of the internal examination. The insides of the cases showed no signs of overheating or fire damage, and there was no baked-on residue consistent with an overheated transmission and lube. The snap ring that retained sixth gear was broken and the Torrington thrust bearing for sixth gear had failed, putting metallic debris and loose needles through the unit. Several gears were chipped by needles getting between the teeth in mesh, but nothing severe enough to bind up the gear train or make audible noise. The synchronizer rings had metal impinged in them, which would have caused his complaints of hard, notchy shifts.
Sixth gear where it rode against the failed bearing showed witness marks from the higher friction and about a one-inch circle of blued metal consistent with heat generated by bearing failure. Questions that came to mind: If the transmission showed no signs of combustion products and no heat damage except to the sixth-gear thrust surface, where was the heat? Why were all the heat-sensitive rubber, nylon and plastic components still in brand-new operating condition? Was the failure of the sixth-gear thrust bearing caused by an assembly mistake or by exceeding the thrust capacity of design because of heavily increased torque loads on a helical-gear transmission? It was apparent to me, the chief engineer and our fire expert this was not the point of origin of the fire and showed zero signs of overheating. We photographed and documented everything and after four hours of detailed work broke for lunch. After lunch we would be going to another location to inspect the vehicle.
Next month: Inspection of the vehicle, defense strategy, Mike Weinberg’s deposition and the final outcome.