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17-P-1204                                           Appeals Court

  THOMAS R. GLIOTTONE, JR.    vs.   FORD MOTOR COMPANY & others.1


                           No. 17-P-1204.

         Norfolk.     September 13, 2018. - July 31, 2019.

                Present:   Rubin, Sacks, & Shin, JJ.


Motor Vehicle, Defect, Warranty. Evidence, Expert opinion.
     Practice, Civil, Summary judgment. Words, "Lemon law."



     Civil action commenced in the Superior Court Department on
July 25, 2014.

     A motion for summary judgment was heard by Angel Kelley
Brown, J.; a motion for summary judgment was heard by Rosalind
H. Miller, J., and the entry of judgment was ordered by her.


     Christopher M. Lefebvre (Clovis C. Gregor, of Rhode Island,
also present) for the plaintiff.
     Michelle I. Schaffer for Ford Motor Company & another.
     Ronald P. Langlois for Tasca Automotive Group, Inc.


    RUBIN, J.    This case requires us to decide whether a

plaintiff suing under the Massachusetts Lemon Law, G. L. c. 90,

§ 7N 1/2, must introduce expert testimony to prove that the


    1   Tasca Automotive Group, Inc., and Rodman Ford Sales, Inc.
                                                                      2


subject vehicle did not comply with the applicable express or

implied warranties.   A judge of the Superior Court answered this

question in the affirmative and on this basis granted summary

judgment in favor of defendant Ford Motor Company (Ford).2     We

disagree and therefore, for the reasons set out infra, vacate

the judgment entered in favor of all the defendants.

     Background.   We summarize the facts, many of which are

disputed, in the light most favorable to the nonmoving party,

here the plaintiff, Thomas R. Gliottone, Jr., in accordance with

the traditional standard for summary judgment.      See Augat, Inc.

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).     Under that

standard, summary judgment is appropriate only when "viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."   Id.    Our review of

the summary judgment is de novo.   See Miller v. Cotter, 448

Mass. 671, 676 (2007).

     On July 23, 2010, Gliottone bought a 2010 Ford F-150 pickup

truck from defendant Rodman Ford Sales, Inc. (Rodman), an

authorized dealer of Ford vehicles located in Foxborough,

Massachusetts.   The vehicle, manufactured by Ford, came with a




     2 The claims against the other defendants also were
dismissed as a result of the failure to introduce expert
testimony.
                                                                    3


limited warranty that covered manufacturing defects.   Shortly

after the purchase, the truck began exhibiting mechanical

problems:   the truck would not start, it would stall, it

experienced loss of power, and the on-board diagnostic panel

would show that it was in "wrench" mode.   Gliottone contacted

Ford's roadside assistance, which instructed him to bring the

vehicle to defendant Tasca Automotive Group, Inc. (Tasca), a

different authorized Ford dealer located in Cranston, Rhode

Island.   He did so on or about August 14, 2010, and Tasca

representatives told him that installing a supercharger would

solve the mechanical problems and would not adversely affect his

warranty.   Gliottone agreed to pay for the supercharger, which

cost $8,038.68 for parts and labor.   The invoice for this

service shows that the truck had been driven 1,461 miles and was

ready for pickup on September 24, 2010.    Ford disputes that the

supercharger was an authorized repair, but we are reviewing a

motion for summary judgment and there is sufficient evidence to

support a finding that it was:   the invoice states that the

supercharger was installed for "engine repair."   Ford also

continued to pay for warranty services for problems it blames on

the supercharger even though it would have had no obligation to

do so under the warranty if the malfunctions were caused by a

"modification[]."
                                                                    4


     According to Gliottone, the vehicle's wrench mode

reactivated and the same mechanical problems with failing to

start, power loss, and stalling resurfaced in October of 2010.

These issues would also occur when the vehicle's "hill descent"

and "tow haul" modes were activated.   He took the vehicle back

to Tasca on October 20, 2010, and the vehicle remained out of

service for ten days.3

     The truck's problems did not end here.   It was towed to

Tasca on May 16, 2011, apparently through Ford's roadside

assistance hotline, because it would crank but not start.4     By

May 19, Tasca had replaced the truck's throttle position sensor

and the truck was ready to be picked up.

     Gliottone then returned to Tasca on June 1, 2011, because,

again, the truck would crank but not start.   Tasca kept the

truck until June 24 and replaced the fuel pump.

     Gliottone again returned to Tasca on August 3, 2011, this

time because, when he drove the truck, the hill descent light

would illuminate and the truck would lose power.   It would also




     3 The invoice for this servicing only shows an oil change.
The invoice also shows that the truck had a mileage of 1,212,
fewer than its mileage more than two months earlier.

     4 The relevant invoice indicates that the vehicle was towed
to Tasca, and Gliottone averred that, between September of 2010
and December of 2011, the truck was towed through Ford's
roadside assistance "at least three or four times." No other
invoice indicates that the truck was towed to that location.
                                                                   5


idle "rough."   After also discovering problems with the

accelerator pedal, Tasca eventually replaced a power control

module.   The truck was out of service until September 30, 2011.

    Another invoice shows that the truck was serviced between

November 21, 2011, and December 12, 2011, because the wrench

light illuminated and there would be a power loss, precisely the

issue that first had plagued the truck.   A Tasca mechanic

contacted Ford's technical assistance hotline, and was

instructed to replace the throttle body, which he did.

    Tasca filed claims against Gliottone's warranty with Ford

with respect to the throttle position sensor, the fuel pump, the

power control module, and the throttle body, but not the

supercharger, for which Gliottone paid out-of-pocket.

    Tasca removed the supercharger in October of 2011.5

Although a Tasca invoice shows that one of its mechanics then

drove it for 465 miles without issue, Gliottone avers that the

initial problems with the vehicle persisted beyond December of

2011, a proposition we must accept on summary judgment review.




    5  It is unclear from the record when Gliottone took his
vehicle in for this final repair and when it was released. One
invoice shows that the relevant repair order was opened on
September 29, 2011, after the vehicle had been towed to Tasca,
and the truck was ready on January 31, 2012. This is hard to
reconcile with an invoice showing that the truck was out of
service between August 3, 2011, and September 30, 2011, as well
as an invoice showing a different repair order being open
between November 21, 2011, and December 12, 2011.
                                                                   6


Gliottone then demanded that Ford accept return of the vehicle

and give him a refund; Ford declined, and this suit followed.

    Analysis.   The Lemon Law provides:    "If a motor vehicle

does not conform to any applicable express or implied warranty,

and the consumer reports the nonconformity to the manufacturer

of the vehicle, its agent or its authorized dealer during the

term of protection, the manufacturer, its agent or its

authorized dealer shall effect such repairs as are necessary to

conform the vehicle to such warranty."     G. L. c. 90,

§ 7N 1/2 (2).   The statute defines "[n]onconformity" to include

"any specific or generic defect or malfunction, or any

concurrent combination of such defects or malfunctions that

substantially impairs the use, market value or safety of a motor

vehicle."   G. L. c. 90, § 7N 1/2 (1).    The "[t]erm of

protection" is defined, as relevant here, as "one year or

fifteen thousand miles of use from the date of original delivery

of a new motor vehicle, whichever comes first."     G. L. c. 90,

§ 7N 1/2 (1).

    Under the statute, "If the manufacturer, its agent or

authorized dealer does not conform the motor vehicle to any such

applicable express or implied warranty by curing any

nonconformity after a reasonable number of attempts, the

manufacturer shall accept return of the vehicle from the
                                                                    7


consumer."   G. L. c. 90, § 7N 1/2 (3).   A reasonable number of

attempts occurs either when:

     "(a) the same nonconformity has been subject to repair
     three or more times by the manufacturer or its agents or
     authorized dealers within the term of protection, but such
     nonconformity continues to exist or such nonconformity has
     recurred within the term of protection, or (b) the vehicle
     is out of service by reason of repair of any nonconformity
     for a cumulative total of fifteen or more business days
     during the term of protection."

G. L. c. 90, § 7N 1/2 (4).     In addition, even after a

"reasonable number of attempts," the manufacturer gets one

additional "opportunity to cure," lasting no longer than seven

business days, and beginning when "the manufacturer first knows

or should have known that the limits specified in clause (a) or

(b) have been met or exceeded."    G. L. c. 90, § 7N 1/2 (4).

     A.   Expert testimony.    The facts alleged describe several

covered nonconformities reported within the term of protection,

specifically, not starting, stalling, and losing power.6    The

defendants do not argue that the reasonable number of attempts

requirement or the opportunity to cure requirement was not met.7


     6 The term of protection ended on or about July 23, 2011, as
invoices from Tasca show that the vehicle had not reached 15,000
miles one year after purchase.

     7 In an argument directed toward one of the other counts of
the complaint, Ford asserts that Tasca is not "simply by virtue
of its dealership status" the "manufacturer's agent for the
purpose of receiving the notice contemplated by" the statute,
General Motors Corp. v. Blackburn, 403 Mass. 320, 324 (1988).
Blackburn held only that a dealer is "not necessarily" the
                                                                    8


Their arguments with respect to the Lemon Law claim all turn on

the need for expert testimony.

    The defendants argue first, as the judge concluded, that

expert testimony was required to demonstrate these

nonconformities.   "The purpose of expert testimony is to assist

the trier of fact in understanding evidence or determining facts

in areas where scientific, technical, or other specialized

knowledge would be helpful."     Commonwealth v. Pytou Heang, 458

Mass. 827, 844 (2011).   Thus, expert testimony is necessary only

on subjects that the trier of fact would not "be expected to

understand in many circumstances without guidance from an

expert."   Providence & Worcester R.R. v. Chevron U.S.A. Inc.,

416 Mass. 319, 323 (1993).   It is not necessary in cases in

which lay knowledge enables the jury to find the relevant facts.

See Smith v. Ariens Co., 375 Mass. 620, 625 (1978).

    Whether a cause of action can be proven without expert

testimony depends on the elements of the cause of action.      As

relevant here, in order to show the Lemon Law applicable,

Gliottone was required to show a nonconformity, i.e., a



manufacturer's agent for the purpose of receiving that notice.
Id. Here, to the extent it is relevant, there was sufficient
evidence of such an agency relationship created by either actual
or apparent authority to survive summary judgment. This
evidence includes the description of dealerships, as well as
Ford's relationship to them, contained in the warranty document
as well as Ford's roadside assistance directing Gliottone to
take his vehicle to Tasca.
                                                                     9


"specific or generic defect or malfunction, or any concurrent

combination of such defects or malfunctions that substantially

impairs the use, market value or safety of a motor vehicle."

G. L. c. 90, § 7N 1/2 (1).

    Contrary to Ford's argument, because it does not matter

what is causing the vehicle to malfunction, or even if it can be

determined what is causing it, expert testimony is not always

required to demonstrate that a vehicle has a nonconformity.     In

many circumstances, including these, a rational juror, without

an expert, can understand the facts necessary to decide whether

a plaintiff has demonstrated an actionable defect or

malfunction.   On this issue we agree with the Supreme Court of

Indiana, which said in construing that State's Lemon Law:

    "[I]t hardly takes an expert to observe that the brakes
    will not adequately stop the automobile he is driving. It
    was not for the [plaintiffs] to prove why the brakes were
    not working. It was sufficient for them to establish to
    the satisfaction of the trier of fact that they in fact did
    not function properly. . . . There is nothing in the
    'Lemon Law' statute which requires the purchaser of the
    automobile to present expert testimony as to the failure of
    the automobile to perform properly."

General Motors Corp. v. Zirkel, 613 N.E.2d 30, 31 (Ind. 1993).

    This is a paradigm case.   At most, three weeks after

Gliottone purchased the vehicle, which had at most 1,461 miles

on it when first repaired, the vehicle was unable to start,

stalled, and lost power.   The relevant invoice showed that the

supercharger was installed for "engine repair."   A rational
                                                                   10


juror, given this information, clearly could conclude that the

vehicle was defective or had a malfunction when sold.    See id.

at 30-31 (plaintiff did not need expert to prove manufacturing

defect in brakes first repaired thirty-two days after purchase

and repaired another nineteen times in next five months).

Contrast Kourouvacilis v. General Motors Corp., 410 Mass. 706,

717 (1991) (plaintiff needed expert to prove that six year old

vehicle had defect when purchased, and that this defect caused

fire); Walsh v. Atamian Motors, Inc., 10 Mass. App. Ct. 828,

828-829 (1980) (simply pointing to automotive problems

insufficient to prove manufacturing defect because vehicle was

four years old and had been driven for 63,000 miles).

    Nor are the defendants correct that Gliottone needed an

expert to negate the statutory affirmative defenses that the

nonconformity was the result of an "attempt to repair the

vehicle by a person other than the manufacturer, its agent or

authorized dealer," or of "any attempt substantially to modify

the vehicle which was not authorized by the manufacturer."

G. L. c. 90, § 7N 1/2 (3).   While Ford does claim that the

supercharger caused many of the issues that induced Gliottone to

return to Tasca and that it was an unauthorized repair, these

are disputed facts.   A reasonable juror could conclude, without

expert testimony, that problems that persisted unabated before

the supercharger was installed, while it was in the truck, and
                                                                   11


after it was removed were not caused by the supercharger.     A

reasonable juror could also infer from the relevant Tasca

invoice, Tasca's representations to Gliottone, Ford's actions in

sending Gliottone to Tasca to repair the vehicle before and

after the supercharger was installed, and Ford's continued

payment for warranty services after the installation of the

supercharger despite having no obligation to do so under the

warranty if the malfunctions were caused by a "modification,"

that the installation of the supercharger was an authorized

repair rather than an unauthorized one or a modification.     Tasca

appears to argue that Gliottone required expert testimony to

demonstrate that the alleged nonconformity "substantially

impaire[d] the use, market value or safety" of the truck.     G. L.

c. 90, § 7N 1/2 (1).   A jury does not need an expert, however,

to explain that not starting, stalling, and losing power

substantially impair the use, market value, or safety of a

vehicle.

    The other reported case cited by the judge and Ford,

Goffredo v. Mercedez-Benz Truck Co., 402 Mass. 97 (1988), to the

extent it is relevant at all, supports our conclusions.     That

case held only that the plaintiff could not prove that a door

latch that blew open during an accident in which the truck

hydroplaned, veered to the right, jumped the curb, hit a parked

car, went perpendicular to the direction of traffic, crossed the
                                                                    12


street, hit the opposite curb, and came to a stop was

defectively designed without expert testimony "as to the amount

of force necessary to cause the door to open."     Id. at 104.     The

court made clear that "this was not a case in which the jury

could have found, of [their] own knowledge, that the defendant

had improperly designed the latch mechanism."    Id.   The court

did not hold that expert testimony is required to prove the

existence of a malfunction or a defect that is obvious to a lay

juror, like the ones alleged here.8

     Ford's other reported cases are irrelevant.    Providence &

Worcester R.R., 416 Mass. at 323, held that expert testimony was

required to show a causal relation between an oil spill in 1972

and soil contamination found sixteen years later.      And Esturban

v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912

(2007), involved a design defect that required an expert to

"detail[] not only what standards and codes apply, but also how

the . . . design did not meet those standards or codes."     This

case is not about whether Ford's design of the truck was


     8 The same is true of the unreported cases cited by the
defendants. See Morse vs. Ford Motor Co., U.S. Dist. Ct., No.
08-11930, slip op. at 1 (D. Mass. Jul. 13, 2010) (plaintiff
required expert testimony to prove tie rod assembly and airbag
system in vehicle were defective, which were "highly technical
and specialized questions"); Laspesa vs. Arrow Int'l, Inc., U.S.
Dist. Ct., No. 07-CV-12370, slip op. at 4-5 (D. Mass. Dec. 23,
2009) (expert testimony required in only "complex" breach of
warranty and design defect cases, which that case was).
                                                                    13


"unreasonably dangerous," id. at 911, but about whether it sold

Gliottone a lemon.9

     Ford also argues without citation to binding authority that

Gliottone cannot prevail on summary judgment because the only

support in the record for the truck's alleged stalling,

inability to start, loss of power, and other problems are from

his own affidavit.    This is inconsistent with Mass. R. Civ. P.

56 (e), 365 Mass. 824 (1974) ("When a motion for summary

judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials

of his pleading, but his response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial" [emphasis added]).

     B.   Other claims.   Gliottone also brought claims of breach

of contract and express warranty, breach of the implied

warranties of marketability and fitness, breach of the covenant

of good faith and fair dealing, unjust enrichment, revocation of

acceptance, and violation of G. L. c. 93A against Ford, Tasca,

and Rodman, on all of which the judge also granted summary




     9 And regardless, our courts have regularly held that expert
testimony in design defect cases is not necessary when a lay
juror is capable of understanding, without expert testimony,
whether or not the design deviated from the applicable standard
of care. See, e.g., Smith, 375 Mass. at 625; doCanto v. Ametek,
Inc., 367 Mass. 776, 782 (1975).
                                                                  14


judgment on the basis that because Gliottone presented no expert

evidence, he could not, as a matter of law, prove that the truck

did not conform to the applicable warranties.10   In light of our

holding that expert testimony is not essential to prove that, we

must vacate the judgment on those counts as well in order to

allow the judge in the first instance to address any of the

other arguments made before us that were made below in support

of the motion for summary judgment.

     Conclusion.   The judgment is vacated.   Because there are

disputed facts on the Lemon Law claim against Ford, summary

judgment was inappropriate; that claim must be determined at a

trial on the merits.   As to the remaining counts, the judge

should address them in the first instance under the summary

judgment standard, reconsidering any preserved arguments that

she did not reach in her initial summary judgment order.

                                    So ordered.




     10The fraud and the c. 93A claims were not asserted against
Rodman. Gliottone's breach of warranty claims, as well as the
revocation of acceptance claim, were brought under the
applicable provisions of both the Massachusetts Uniform
Commercial Code and the Federal Magnuson-Moss Warranty Act, 15
U.S.C. §§ 2301-2312.
