Locals' lawsuit against Volkswagen will join others in federal court


MANCHESTER — A class-action lawsuit filed by two local drivers of "clean diesel" Volkswagens alleging the automaker deceived consumers by rigging cars to meet pollution standards will join hundreds of similar suits in federal court.

The case, which lists Manchester residents Gavin Cornell and Mildred Kaylor as plaintiffs, is one of four similar suits filed in Vermont this fall against Volkswagen of America.

Over 400 suits from around the country have been transferred to the U.S. District Court for the Northern District of California in San Francisco, according to Attorney Patrick Bernal, of Manchester law firm Witten Woolmington Campbell & Bernal.

"The consolidation acknowledges the fact that there have been between 450 and 500 civil actions filed," Bernal, who represents Cornell and Kaylor, said Monday. "They'll have a lot of overlapping issues."

The consolidation was ordered Dec. 8 by the U.S. Judicial Panel on Multidistrict Litigation for pre-trial proceedings only, he noted.

"In the event of non-settlement, it's entirely possible a trial would go forward in Vermont and elsewhere," Bernal said.

The Manchester law firm filed suit against Volkswagen on behalf of Cornell and Kaylor, both drivers of Volkswagens with diesel engines, in Bennington County Superior Court, Civil Division on Sept. 24. The case was removed to U.S. District Court in Rutland on Oct. 16 and, under the judicial panel's order, transferred to the Northern District of California Court on Dec. 21.

The suit alleges the German automaker violated the Vermont Consumer Fraud Act and breached a contract with consumers by installing software that made its diesel-powered cars meet pollution standards, and seeks punitive damages for the plaintiffs.

Three additional lawsuits were filed by Vermont residents and transferred to federal court: From Windham County, plaintiffs Murray S. Krugman and Barbara S. Jentis, both represented by Phillips Dunn, Shriver & Carroll of Brattleboro; from Chittenden County, Robert Turnau of Charlotte, represented by Downs Rachlin Martin of Burlington; and from Windsor County, Michael Maston, of Ludlow, represented by Norman C. Williams of Gravel & Shea, Burlington.

Volkswagen has been under fire since it was discovered this fall that its cars powered by four and six cylinder diesel engines had software that could detect when they were being tested, changing the performance and allowing better results.

The "defeat device," according to the Environmental Protection Agency, let the vehicles emit 10 to 40 times the allowable level of nitrogen oxide, an exhaust gas from diesel engines. An estimated 600,000 diesel engine vehicles sold in the U.S. were affected. Volkswagen Group — the parent company that manufactures and sells vehicles under the Bentley, Bugatti, Lamborghini, Audi, Porsche and other marques — has admitted the device was in 11 million of its vehicles sold around the world.

According to the EPA, offending vehicles sold in the U.S. include 2.0 and 3.0 diesel engine powered vehicles of the following make, model and years: The Volkswagen Beetle, Golf, Jetta, Passat and Toureg, 2009 to 2016; the Porsche Cayenne, 2013 to 2016; and Audi A6 Quattro, A7 Quattro, A8, Q5 and Q7, 2009 to 2016.

On Monday, the U.S. Department of Justice filed a suit against Volkswagen AG alleging it installed the defeat devices. The civil complaint, filed on behalf of the EPA, alleges the automaker violated the Clean Air Act by making and selling vehicles that were designed differently from what Volkswagen had stated in applications for certification to the EPA and another regulator, the California Air Resources Board.

"With today's filing, we take an important step to protect public health by seeking to hold Volkswagen accountable for any unlawful air pollution, setting us on a path to resolution," Assistant Administrator Cynthia Giles for EPA's Office of Enforcement and Compliance Assurance said in a statement Monday. "So far, recall discussions with the company have not produced an acceptable way forward. These discussions will continue in parallel with the federal court action."

According to court documents, Cornell began leasing a 2012 VW Toureg with a 3.0 liter diesel engine in May 2012, and Kaylor purchased a new 2012 VW Jetta with a 2.0 liter diesel engine in October 2010.

Both plaintiffs assert they purchased Volkswagens, in part, because of the "clean diesel" advertising which promised pleasing performance, good fuel economy and emissions far cleaner than previous diesel technology. Both plaintiffs say they have suffered an ascertainable loss from out-of-pocket loss and diminished value of their vehicles.

The complaint also states the automaker won't be able to make the vehicles' meet emission standards "without substantially degrading their performance characteristics, including their horsepower and their efficiency."

In its seven-page decision issued Dec. 8, the U.S. Judicial Panel on Multidistrict Litigation noted there are 30 actions pending in the Northern District of California, including the first-filed case in the nation, and plaintiffs have filed a total of 101 cases in the state of California — nearly a fifth of all cases filed nationwide. Judge Charles R. Breyer will serve as the transferee judge, according to the MDL order. The judge is the brother of U.S. Supreme Court Justice Stephen Breyer.

"While any number of transferee districts could ably handle this litigation, we are persuaded that, in these circumstances, the Northern District of California is the appropriate transferee district for this litigation," Sarah S. Vance, chief judge of the U.S. District Court for the Eastern District of Louisiana and chair of the panel, wrote in the decision.

Contact Edward Damon at 413-770-6979


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