                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0305p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                          X
                                                           -
 PATRICIA A. DAFFIN, on behalf of herself and all

                                     Plaintiff-Appellee, -
 others similarly situated,
                                                           -
                                                           -
                                                               No. 05-3545

                                                           ,
            v.                                              >
                                                           -
                                                           -
                                  Defendant-Appellant. -
 FORD MOTOR COMPANY,

                                                           -
                                                          N
                            Appeal from the United States District Court
                          for the Southern District of Ohio at Cincinnati.
                           No. 00-00458—Susan J. Dlott, District Judge.
                                       Argued: June 7, 2006
                               Decided and Filed: August 18, 2006
                   Before: MARTIN, MOORE, and ROGERS, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Brian C. Anderson, O’MELVENY & MYERS, Washington, D.C., for Appellant. John
C. Murdock, MURDOCK, GOLDENBERG, SCHNEIDER & GROH, Cincinnati, Ohio, for
Appellee. ON BRIEF: Brian C. Anderson, O’MELVENY & MYERS, Washington, D.C., Gary
Glass, THOMPSON HINE, Cincinnati, Ohio, for Appellant. John C. Murdock, MURDOCK,
GOLDENBERG, SCHNEIDER & GROH, Cincinnati, Ohio, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
       ROGERS, Circuit Judge. In this interlocutory appeal of class certification under Federal
Rule of Civil Procedure 23, we affirm the district court’s certification of a class of all 1999 or 2000
Mercury Villager owners and lessees who owned or leased their vans during their van’s initial
warranty period. The class seeks damages for a defective throttle body assembly that causes the
accelerator to stick. Although the class includes those owners who never actually experienced a
manifestation of the alleged defect, the class certification was not an abuse of discretion because the
class and the named plaintiff meet the elements of Federal Rule of Civil Procedure 23(a) and
23(b)(3).




                                                  1
No. 05-3545            Daffin v. Ford Motor Company                                                 Page 2


I. Background
         Plaintiff Daffin owns a 1999 Mercury Villager minivan. The accelerator in Daffin’s Villager
has stuck in place. To overcome the accelerator’s sticking, Daffin had to stomp on the accelerator.
Ford repaired the throttle body assembly by cleaning it, but Daffin’s accelerator sticking persisted.
According to Daffin’s expert, the accelerator sticking is caused by carbon buildup in the throttle
body assembly. The throttle body assembly translates the driver’s pressure on the accelerator to an
increase or decrease in the mixture of fuel and air that makes the Villager accelerate. Daffin alleges
that the throttle body is defective. According to plaintiff’s expert, the throttle body either needs to
be treated with a substance that will resist carbon buildup or a totally different throttle body must
be installed. Plaintiff’s expert also opined that Daffin’s throttle body is the same throttle body that
is in all 1999 or 2000 Villagers.
       Ford offers a standard “repair or replace” warranty for three years or 36,000 miles. The
terms of this warranty require Ford to repair or replace parts found to be “defective in materials or
workmanship.” The warranty reads as follows:
        During this coverage period [“three years or 36,000 miles”], authorized Ford Motor
        Company dealers will repair, replace, or adjust all parts on your vehicle (except tires)
        that are defective in factory-supplied materials or workmanship. Items or conditions
        that are not covered by the New Vehicle Limited Warranty are described on 7-9.
The throttle body assembly is not an item that is specifically excluded by the express terms of the
warranty.
        Daffin filed suit as an individual in state court. Ford removed the case to federal court, and
Daffin sought class certification for a nationwide class on June 29, 2001. The district court certified
a statewide class defined to include:
        all Ohio residents who lease or own a model year 1999 or 2000 Villager that was
        bought or leased during the warranty period, excluding the defendant, any entity that
        has a controlling interest in the defendant along with defendant’s employees,
        officers, directors, legal representatives and all of their respective heirs, successors,
        and assignees and any entity alleging a personal injury claim against Ford arising
        from the facts of this case.
The district court reasoned that the class satisfied the numerosity element because the thousands of
class members could not be practicably joined. Common questions of whether the throttle body
assembly is defective predominate. The district court reasoned that Daffin’s claim was typical
because the same course of conduct (delivering a non-conforming vehicle) gave rise to the same
legal claim that all other class members had. The district court found that Daffin’s express warranty
claim was typical of both owners whose cars manifested defects and owners whose cars did not. The
district court found that Daffin was not typical of plaintiffs asserting an implied warranty. The
district court concluded that Daffin had “satisfied the typicality prerequisite for at least one of her
claims.” Lastly, under Rule 23(a)’s adequacy prong, the district court found that Daffin had interests
common to the class and was represented by able counsel who will vigorously prosecute.
        The district court also found that, under Federal Rule of Civil Procedure 23(b)(3), common
issues predominate. The district court refused to certify the class under Rule 23(b)(2) because the
class seeks monetary relief rather than injunctive relief. Instead, the district court certified the class
under Rule 23(b)(3) because the common issues of whether the throttle body is defective, how much
the defect reduces the value of the car, and whether Ford is in breach predominate. The district court
also reasoned that the proposed class was superior to other methods of adjudication.
No. 05-3545           Daffin v. Ford Motor Company                                              Page 3


       The district, and subsequently this court, permitted interlocutory appeal pursuant to Federal
Rule of Civil Procedure 23(f).
II. Discussion
        The district court’s determination to certify a class was not an abuse of discretion. See
McAuley v. Int’l Bus. Mach. Corp., 165 F.3d 1038, 1046 (6th Cir. 1999) (recognizing abuse of
discretion as the scope of review).
        Ford argues that this is a case of “certify now, worry later.” Ford argues that the district
court did not perform the rigorous analysis necessary to determine whether the plaintiffs could prove
the elements of a breach-of-express-warranty claim on a class-wide basis. Ford argues that by
certifying an express warranty class, the district court’s order implicitly held that it is possible for
Ohio plaintiffs to recover under breach of a “repair or replace” warranty for a defect that never
manifested itself. In sum, Ford argues that, because the class as a whole cannot recover, the district
court abused its discretion by certifying a statewide express warranty class.
        Daffin argues that the district court properly applied Ohio law and that Ford wants this court
to “rule on the merits” of the class. Daffin points out that whether the class members will ultimately
be successful in their claims is not a proper basis for reviewing a certification of a class action.
Daffin argues that the elements of Rule 23 are met and that the district court accurately and
sufficiently analyzed those elements.
       Daffin has the better of the argument at this stage of the litigation. The district court did not
abuse its discretion when certifying a class of all Ohio owners and lessees of a 1999 or 2000
Villager. The district court properly determined that the elements of Federal Rule of Civil Procedure
23(a) and Rule 23(b)(3) are met.
        The numerosity element is satisfied. See Fed. R. Civ. P. 23(a)(1). The proposed class
includes thousands of individuals. In In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th Cir. 1996), we
recognized that while there is no strict numerical test, “substantial” numbers usually satisfy the
numerosity requirement. Ford argues that, due to state law, Daffin is only typical of those owners
who experienced a manifested defect and did not obtain a satisfactory cure from Ford. Thus, Ford
argues, the number of owners for which Daffin is typical does not number in the thousands. Because
we determine below that Daffin is typical of the thousands of 1999 or 2000 Villager owners who
assert express warranty claims, the class satisfies the numerosity element.
        The commonality element is satisfied. See Fed. R. Civ. P. 23(a)(2). Common questions of
law and fact are present. First, the question of whether the throttle body is defective is common to
all 1999 or 2000 Villager owners because they all have the same throttle body and warranty. See
In re Teletronics, 168 F.R.D. 203, 213 (S.D. Ohio 1996) (holding that there was commonality where
the plaintiffs used two “virtually identical” pacemaker models and the issue was whether the
defendant’s conduct caused metal-fatigue failure); cf. In re Am. Med. Sys., 75 F.3d at 1081 (holding
that there was no commonality where class members received ten different penile implants).
Second, the legal question of whether the warranty contract is properly read to contain a promise
to repair the type of common ‘defect’ in all the 1999 or 2000 throttle body assemblies (regardless
of whether or not manifested during the warranty period) is also common to the class.
         The typicality element is also satisfied. See Fed. R. Civ. P. 23(a)(3). Daffin’s claim is
typical of the class because the class members’ theory is that Ford breached its express warranty by
providing vehicles with defectively designed throttle body assemblies, causing Daffin and other
class members to receive vehicles worth less than vehicles that conform to the promises allegedly
contained in the warranty agreement. Daffin is typical because her car has the same defective
throttle body assembly as the other class members. See Ilhardt v. A.O. Smith Corp., 168 F.R.D. 613,
No. 05-3545           Daffin v. Ford Motor Company                                              Page 4


618 (S.D. Ohio 1996) (typicality satisfied where all plaintiffs bought structures with bottom unloader
door and where issue was whether the bottom unloader design was defective). The mere fact that
Daffin’s throttle body assembly stuck, while other class members’ throttles have not stuck, does not
render Daffin atypical. See Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n.31 (6th Cir. 1979).
Daffin and the other class members’ claims arise from the same practice (delivery of non-
conforming vehicle), the same defect (the allegedly defective throttle body assembly), and are based
on the same legal theory (breach of express warranty). Typicality is satisfied despite the different
factual circumstances regarding the manifestation of the accelerator sticking and Ford’s attempts to
remedy manifested sticking.
        Ford argues that an owner who has not experienced accelerator sticking and has not sought
repair for the problem cannot “prove” an express warranty claim under the “repair or replace”
warranty. The court may ultimately accept or reject this reading of the contract, but a court should
not “conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be
maintained as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). Thus,
whether the class members can win on the merits of the issue common to the class is not a factor in
determining whether Daffin’s claim is typical.
        Whether the district court applying Ohio law could find that Ford’s warranty permits an
owner to recover damages for loss resulting from the alleged defect in the throttle body assembly
is a merits issue. Ford, referring to Alkire v. Irving, 330 F.3d 802, 819-21 (6th Cir. 2003), suggests
that performing the “rigorous analysis” required to certify a class necessarily includes determining
whether class members could “prove” an Ohio breach of warranty claim if they did not experience
accelerator sticking. But Daffin has the same Villager with the same throttle body assembly as all
the other class members. The question that forms the basis for Ford’s argument is one of contract
interpretation: whether Ford’s express warranty promises to cover the alleged defect in the throttle
body assembly even if no sticking occurs during the warranty period. This is an issue that can be
decided on the merits so as to bind both Ford and the class. Daffin’s claim is typical despite the fact
that Daffin has experienced sticking and other class members have not, as long as Daffin has a
viable claim regardless of defect manifestation.
         Daffin also meets the requirement that she will adequately protect the interests of the class.
See Fed. R. Civ. P. 23(a)(4). Ford argues to the contrary because Daffin has experienced accelerator
sticking, while a majority of other class members have not. Ford thus suggests that Daffin does not
have the same injury as the other class members and will not adequately represent the interests of
the other class members. This argument again disregards the fact that Daffin has the same throttle
body assembly as the other class members and asserts the same claim for diminution in value of the
Villager due to delivery of a non-conforming vehicle. See generally Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 625-27 (1997) (describing the adequacy requirement). In part, the adequacy
of representation inquiry serves to uncover conflicts of interest between the named parties and the
class they seek to represent. Id. No such conflict is apparent as long as the claims litigated by the
class are based on the presence of a defect regardless of manifestation during the warranty period.
See generally Senter, 532 F.2d at 525; see also In re Am. Med. Sys., 75 F.3d at 1083. Thus, the
district court did not abuse its discretion in finding that the class meets the elements of Federal Rule
of Civil Procedure 23(a).
         Lastly, the district court did not abuse its discretion when certifying the class under Rule
23(b)(3) because common issues predominate and class treatment is the superior method of
adjudication. The issues that predominate include: (1) whether the throttle body assembly is
defective, (2) whether the defect reduces the value of the car, and (3) whether Ford’s express “repair
or replace” warranty covers the latent defect at issue in this case. As the district court pointed out,
this is not a case like Amchem, 521 U.S. at 624, in which different class members were exposed to
different products such that the uncommon issue of causation predominated over the lesser shared
No. 05-3545                 Daffin v. Ford Motor Company                                                               Page 5


issues. This is a case in which, assuming the throttle body is the same in every car, class members
all have the same express warranty claim. See Chandler v. Southwest Jeep-Eagle, 162 F.R.D. 302,
310 (N.D. Ill. 1995) (predominance requirement satisfied where all consumers received the same
service contract and the principal question was whether the service contract violated consumer
protection laws). The class members’ claims do not differ based on whether there has been actual
accelerator sticking because they all allege that Ford delivered a good that did not conform to Ford’s
written warranty.
        Finally, class litigation is the superior method of adjudication. See Fed. R. Civ. P. 23(b)(3).
The threshold issue of whether Ford’s warranty promise can reasonably be read to cover the alleged
defect at issue in this case, regardless of manifestation during the warranty period, is better litigated
in the class context. Permitting individual owners and lessees of 1999 or 2000 Villagers to litigate
their cases is a vastly inferior method of adjudication when compared to determining threshold
issues of contract interpretation that apply equally to the whole class. Additionally, the difference
in value between conforming and non-conforming goods is better litigated in a class-wide context.
         If at a subsequent point in the litigation the district court determines that the express warranty
is limited to defects that manifest themselves within the warranty period, the district court may
consider at that point whether to modify or decertify the class. See Fed. R. Civ. P. 23(c)(1)(C); see
Rules Advisory Comm. notes to 2003 amends. to Fed. R. Civ. P. 23(c)(1); see also Gen. Tel. Co. of
the Southwest v. Falcon, 457 U.S. 147, 160 (1982) (trial judge is free to modify certification order
in light of subsequent developments in the litigation).
         Our affirmance is limited to the judge’s order insofar as the order certifies a class to litigate
the express warranty provision. The briefs on this appeal reveal that the1 parties may differ as to
whether the district court’s order permits the class to litigate other claims. We recommend that the
district court consider clarification of the order in this regard.
III. Conclusion
         The district court’s order certifying the class is AFFIRMED.




         1
           This likely results from the fact that the district court did not make it clear for which claim(s) Daffin is typical.
The district court reasoned that Daffin is typical of those plaintiffs asserting an express warranty claim, is not typical
of those plaintiffs asserting an implied warranty claim, and may be typical of those plaintiffs asserting a claim under the
Ohio Consumer Protection Act. The district court then stated, “Daffin has satisfied the typicality prerequisite for at least
one of her claims.” Our analysis is based on Daffin’s being typical of those plaintiffs asserting an express warranty
claim.
