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DEX-COOL® Class Action lawsuit against General Motors is a definite
"go" in the state of Missouri. Similar cases have been rejected in Michigan and California. The California case, however, was refiled; it’s proceeding as two separate suits. We should learn of their acceptance or rejection
for certification by the Court in early to mid 2007.
Here’s an official announcement about the Missouri case against GM as provided by the attorneys for the plaintiffs: “The GM class actions allege that Dex-Cool used in certain 1996-2000 model year 4.3 liter vehicle coolant systems results in sludge, and, that the
intake manifold gaskets (IMG) used in certain models and model year GM vehicles are incompatible with Dex-Cool.
A Missouri trial court certified the case as a class action to proceed on behalf of the people who purchased or leased certain specific vehicles in Missouri. Trial in Missouri is set for November 2007. Federal and state class certification motions are pending in other states as well.
Consumers and technicians are encouraged to fill out a complaint form at
www.girardgibbs.com/dexcool.html
Questions can also be directed to Dylan Hughes at 415.981.4800.” Above: Compare this original,
deformed, cracked, leaking IMG with a new-design replacement immediately
below.
Below: While the one above has none, the newer model has two metal torque
limiters (small metal buttons) on either side of the bolt hole. It
is still essentially plastic, however. (The two quarters show
thickness.) Later in the article you'll learn of a steel and rubber
gasket that's available.
As of January 9, 2006, Gutzler, et al., vs. General Motors became an official, certified case charging GM with breaching the
Magnuson-Moss Warranty Act (MMWA) and violating the Missouri Merchandising Practices Act
(MMPA). All parties involved knew it was an active case as early as August 22, 2005, but the court chose to
have the plaintiffs prepare a potential Order as it did not have the resources or time. The plaintiffs’ attorneys accomplished that by the following September 7. Remember, nothing has been decided except that there will be a case. GM “fought” that decision for quite a while; a normal
defensive process in getting cases to court.
The certified lawsuit breaks down the Class Members into two sub-classes:
1. All Class Members who purchased or leased a GM vehicle in Missouri with a 3.1, 3.4 or 3.8 liter engine that was factory-equipped with DEX-COOL, and,
2. All Class Members who purchased or leased a GM vehicle in Missouri with a 4.3 liter engine that was factory-equipped with DEX-COOL.
The sub-classes are named “Gasket Sub-Class” and “Sludge Sub-Class” respectively.
What’s important to Cool Profit$ readers is the information that has so far been generated by the
“discovery” process. Besides
plaintiff's expert witnesses' declarations, internal GM reports, particularly from their own Quality Control groups, have made their way into the somewhat public domain.
Below is how we interpret the various and revealing court papers.
Does A 5-Year, 150,000 Mile Service Life Constitute A Warranty?
An early claim by the Missouri plaintiff is that GM’s own Owner’s Manual statement, that DEX-Cool is rated for a 5-year 150K miles (100K for 1996 vehicles), represents a written warranty. While GM tried to get that summarily rejected, the court recognized it as a major issue that will affect much of the rest of the case. So by the outcome of the case, it looks like, at least in Missouri, we will all know whether such a statement constitutes a guarantee of future performance or merely a suggested service interval.
Should car owners be expected to open hot radcaps?
Another subject of interest that we should all be watching for in this case is just how much and what type of maintenance vehicle owners can be “expected” to perform. GM
denies obligation for fouled cooling systems and broken components by saying that consumers are supposed to check their cooling system level every time they take on fuel.
(GM says the major problems were caused by extended operation at low coolant levels.) The judge decided he would let the jury make that decision based on proof as presented by GM. In fact, the judge also rejected GM’s argument that the plaintiffs did not have “standing.” Standing means
“the owners must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.” Imagine if they would have asked some of your customers about that question; they would have been out before lunch, and without ever losing a night’s sleep. Above: GM requires (expects, wants) car owners to open
this cap to check the radiator's coolant level every time they make a (short) fuel
stop.
The prime complaint against GM is that DEX factory-filled cooling systems in vehicles with 3.1, 3.4, 3.8 and 4.3 liter engines are defective because DEX fails to perform as represented. More specifically, they single out the IMG of the 3.1, 3.4 and 3.8 systems as being incompatible with DEX. Over time (but not enough) the gasket fails. The 4.3 liter system suffers from sludge buildup, which is supported by GM’s own documents. GM even tracks the failures under the category of “DEX-COOL-Sludge.” Above: Radiator tube-blocking and
transmission cooler plate-coating sludge from a 4.3L GM V6 system.
Further, plaintiffs claim that these failures occur within the New Vehicle Warranty, a general plan that covers defective parts for three years or 36,000 miles. However, since many times GM replaced the nylon IMG with another nylon IMG, they did not abide by the warranty. Words like deception, fraud, false pretense, etc., were used.
Coolant Corrosion Task Force?
Another term that could be troubling to a jury is the “Coolant Corrosion Task Force” that GM formed and charged with investigating the original complaints. The resultant was several Technical Service Bulletins advising dealers of sludge and gasket problems. Plaintiffs specifically mentioned both sludge in the 4.3’s and IMG deterioration in a 3.4 liter engine. In this case, GM did not pay for any of the plaintiffs’ vehicles’ repairs. You might say that
these lawsuits exist because GM says it does not warrant DEX and that it is not defective.
Obviously, it's now up to the jury to decide.
Details of certifying a Class Action
The court (judge) determined these factors to have properly justified this case as a Class Action:
1.) the numbers of people affected was adequate,
2.) potential class members were indeed remotely located throughout the state,
3.) there were definitely enough questions of law, and
4.) the plaintiffs and their chosen attorneys were capable of representing the entire class. The plaintiffs have
“ripe and justiciable” (examinable) claims under MMWA and the MMPA.
The judge carefully restated the questions of the case in a form that showed he had no doubt of its certification validity. He actually used
“highly desirable” to describe the resolution that could arrive from this class. In describing GM’s requirement to have vehicle owners check the coolant level at every gas stop to enforce their warranty, he described it as
“a mixed question of fact and law that is common to the Class as a whole.” He added further that GM will have to prove that the so often, regular checking of coolant is reasonably enforceable, and that ultimately, the proof will come from GM. The plaintiffs will be responsible for proving that both the warranty and listed defects actually exist. If a jury were to find for the plaintiffs, the court states that they have
“the power to declare rights, status and other legal relations, whether or not
further relief is or could be claimed.” In addition, for what is sought by the plaintiffs, there is no need to wait, the damage is done.
The court rejected GM’s contention that the two plaintiffs with the 4.3 engines were
“not typical” because their DEX-COOL charge was replaced by green (traditional chemistry) coolant. The fact that the service was done by a GM dealership repairing the
DEX-filled system may have had something to do with that decision. As far at the plaintiff with the 3.4 liter engine whose IMG failed, the court turned down GM’s atypical assertion that there were no 3.1 or
3.4 liter members when it noted that GM itself made no
meaningful distinction between the engines and problems.
Plaintiff’s’ goals
One of the plaintiff’s’ goals is to prove on behalf of all those class members in Missouri that GM’s Owners Manual is a written warranty. If accomplished, it supposedly gives affected Missouri consumers right to present their vehicle to GM for a warranty repair. Those who already paid for the said repairs can cost-effectively seek damages individually through small claims court. Additionally, GM may be required to notify all Missouri class members should they lose the case. The court reiterated that if a “written warranty” or “unlawful practice” does exist, along with any defects of DEX
(essentially, if GM loses), that such an action predominates over any individual issues.
GM: several formulations of DEX
GM argued that besides all the obvious differences between vehicles, engines, etc., that different formulations of DEX, different weather conditions, different uses for the vehicles negate any possible
“Class.” And, that variations might have been made in the manufacturing or assembly processes at the factories.
Evidence:
DEX degrades the nylon IMG
The court said that all of the above had no bearing on whether it had represented a written warranty or unlawful practice. They appreciated more that the plaintiffs presented evidence that DEX degrades the nylon
IMG within the class, no matter of its size or shape. Plus, GM was shown to have issued a TSB to its dealers calling for a replacement gasket made from different material. GM never disputed that DEX degrades the
nylon 6/6 IMG. Below: If you're willing to pay a little more, here's Federal
Mogul's Fel-Pro PermaDryPlus® aluminized steel carrier gasket with
fluoroelastomer coating, torque limiters at the bolt holes, edge-molded
seals with triple-bead design. It comes as a set and includes the
valve cover gaskets.
Below:
Victor Reinz (formerly Dana's Victor) also has a line of enhanced
gaskets to handle specific V6 and V8 DEX-charged problems. It carrier is
hydrolysis-resistant plastic with HNBR sealing beads and coolant ports
(no nylon). It also includes steel load limiters and RTV diversion ports
(which the RTV from migrating to the sealing bead).
Below: We're not sure who makes the one below, or if it's still
available. With an apparent coated steel carrier and steel torque
limiters, it too looks like an upgrade from
GM's original model. If you know who makes it, and it's part number,
please let us know.
As far as the sludge case for the 4.3 liter S/T vehicles, the court found that from GM’s internal documents it knew about the condition for
“several years.” GM contended that the problems were the result of vehicles being operated too long with low coolant levels. But back to reading its internal documents, GM clearly implied that the originally installed
radiator cap and coolant overflow bottles, if they didn’t cause the corrosion, at least contributed
significantly to the sludging. Not overlooked by the court was the fact that if the cap failed and a level of coolant was isolated within the bottle, that level would
falsely tell the vehicle owner that the radiator was full.
Another plus for certification of the class was that it was financially infeasible that individuals could realistically take on GM in this manner. The expense of the expert
witnesses needed to prove the defect was specifically mentioned. If the outcome is in their favor, class members then handle their own recovery. That’s actually the way MMWA was supposed to work.
Here’s something else that may turn out to be quite important to all parties concerned with this class. In response to GM’s request that the Missouri court follow the state courts of California and Michigan, and deny class certification, this court said:
1.) decisions of other state courts don’t necessarily affect us, and
2.) the cases in the other states did not focus on the same issues.
Evidently, the attorneys of the original California case split it into two separate parts. The trial judge rejected the structure but did not rule on certification issue. (There are two separate cases now pending before a California court.) The Michigan case was deemed not helpful to Missouri because the attorneys chose to seek certification under a Michigan consumer law only, and not under MMWA.
California Gasket and Sludge Cases
Like Missouri, the California litigation was originally filed years ago (April 29, 2003). As mentioned above, the attorneys in California decided to break up the gasket and sludge issues into two stand-alone cases. It is now back in as a renewed motion before the court. Remember, neither California case has been certified; what’s pending here is whether either proceeds to trial.
(But, Missouri IS going to trial.)
The Gasket Class is easy to define. It essentially includes all Californians who bought or leased GM vehicles that fall under GM’s TSB 03-06-01-010B. The claim is for a breach of warranty because of the inherent defects that caused vehicles not to live up to their warranties. Besides concealing information about DEX’s gasket-deteriorating tendency, GM’s class members also have supposedly overpaid for their vehicles because they don’t live up to the “warranty.” In addition, they either have paid or will pay for some expensive repairs that were not theirs pay.
One has to wonder if GM should have fought so hard at a previous class certification hearing. By doing so they
apparently succeeded in shaking up the plaintiffs, and maybe a little too much. At that time, feeling pressured to perform, the plaintiffs promised to present a renewed motion that would include more and stronger evidence. To an outsider, it appears they accomplished their goal. There are detailed,
and if true, damaging declarations from qualified experts.
Expert witness: DEX-IMG incompatibility well-known
One of the documents is from a 50-year veteran of the gasket and seal industries. A member of the SAE, ACS (American Chemical Society) and ASTM, the latter of which he served on the D15 coolant committee, he states that he was aware of GM’s 3.1 liter, etc, IMG failures well before learning of the lawsuit. He goes on to say that the gasket’s poor design and incompatibility with DEX was
well-known in his industry. What brought up the discussions was GM’s adopting DEX in 1996, which of course led to widespread testing by him and peers. Those companies included heavy duty manufacturers
Caterpillar, Cummins and International. He authored two technical papers, derived from thousands of hours of testing, focusing on the effects that DEX’s corrosion inhibitors have on rubber and plastic gaskets and seals, including GM’s IMGs in question. He concludes that the two are incompatible because DEX OAT inhibitors degrade both silicone and nylon, of which these gaskets are made.
For more specifics, the IMG is described as Nylon 6,6 carrier, 33% glass filled, injection molded, single silicone sealing bead. This man felt the IMG was not a good design to begin with, and then the inhibitors start attacking the weakened carrier. Evidently, because the silicone sealing bead is not molded over onto the carrier, the carrier is in
direct contact with the DEX. Tie that in with no compression limiters,
needed to maintain gasket integrity (see photo above), to begin with and that, according to the expert, is why the gasket is prone to fail.
Expert witness: HOATs do not degrade gaskets
Interesting, this expert witness went beyond the DEX problem to clarify that different from DEX
OATs, HOATs, Hybrid Organic Acid Chemistry coolants, do not degrade silicone and nylon gaskets. The explanation is quite simple; the added silicate inhibitors of the HOAT protect the silicone polymer from the type of degradation it suffers with pure OAT (DEX). (I think I need a Chemistry refresher.)
Expert witness: IMGs should not fail
As another expert witness, the plaintiffs brought in a long time, highly experienced Certified Master
Technician who has completed 2000 hours of formal diagnosis and repair training. Along with providing diagrams of the engine components in question, he testified that IMGs normally do not fail on their own; they shouldn’t need replacing unless you’re repairing or replacing an adjacent component. Their failure rate should be zero and he’s never seen just an IMG fail. For this engine, to replace them is a 4-6 hour job and will cost $700-1000.
This may be the end of Part 3 of a 3-part story, but it certainly isn't
the end of lawsuits. Please bookmark this page because from right here,
you'll be able to link to the next stage in the litigation
process. $$$
i have a 1999 yukon with about 12k miles on it. i have had to replace the ing,a head and now the engine is the a suit for me? i did not see anything
in the class action about yukons do you know of any?
Reply to mike wissler
CPMJohn – Petaluma, CA
April 27, 2008 - 10:20
Subject: Yukon?
Hi Mike,
Sorry, I'm not sure whether the Yukon fits with Envoys, Jimmys or S-15s. However, the 1995-2000 models with the 4.3 V6 engine are covered by this settlement. You can check it out in Group 3 on this page: www.dexcoolsettlement.com
I'd like to know myself.
Mike Jones – Seattle, WA
April 23, 2008 - 10:35
Subject:
I was a GM parts man from 1990-1999, having worked specifically for a Buick, Pontiac GMC dealership in the mid-late 90's. I worked the 'back counter' where I supplied parts to all the dealership mechanics and I definitely recall replacing many many IMGs on the V6 motors. I don't have the part numbers and exact numbers at my fingertips at the moment but even back then thought it strange for all of these low mileage engines to be 'milkshaking' the engine ("milkshaking" refers to the foamy tan color the engine oil becomes after having coolant introduced to it) Also keep in mind the detrimental effects this has on all oil lubricated parts within the crankcase once the oil has been literally watered down with engine coolant. Good to all of you that have had problems, it sucks to have to pay for repairs that never should have been needed.
Sara Chaney – Raytown MO
April 10, 2008 - 14:57
Subject: 2001 Chevy Blazer included?
I'm in Missouri and my 2001 CHevy blazer was manufactured in Oct 2000 - has a 4.3 litre V6 - would this lawsuit include mine? I know it says model year, but I've had my intake manifold replaced, had 3 antifreeze flushes, and a heater core flush b/c of this issue. My transmissions is now acting up and my gas mileage has done way down since I had the issues a couple of months ago. If this doesn't include my vehicle, why not and who can I contact to find out? I'm even more ticked b/c when I asked the dealer if this was a common problem w/my truck, they told me no. I could have sold it at that time but changed my mind - now I think I'll have a harder time selling it or trading it in. I am really ticked @ GM for lieing to me.
Thanks.
Sara
Melissa – Ohio
April 09, 2008 - 15:50
Subject: Intake valve repair 2002 Chevy Blazer
I just spoke to the people at Dex Cool Settlement and they tell me my Blazer does not qualify for the settlement. I told them that is not fair because I had the same problem as the other vehicles. They told me to send in a objection letter. Course then they said does not mean it will change anything. So unfair!
Reply to Melissa
CPMJohn – Petaluma, CA
April 09, 2008 - 16:14
Subject: Blazer refund ended with 2000
You have a legitimate question?
I will try to find out why your vehicle doesn't qualify.
Jim
April 07, 2008 - 10:59
Subject: Dex coolant fix?
Does anyone have an answer for the problem? If so PLEASE send it to me . Thanks
Reply to Jim
CPMJohn – Petaluma, CA
April 07, 2008 - 12:02
Subject: Flush the system and replace IMG and other affected components
Hi Jim,
By reading all of the DEX articles I think you'll learn of several "fixes." Essentially, contaminated cooling systems have to be completely flushed. Any parts that are bad, especially intake manifold gaskets, must be replaced.
You should also read the comments that accompany each of the articles. They answer many other questions that have arisn. Cooling systems are surely fixable.
Have you read about the GM-DEX Class Action Lawsuit settlement? www.gohtsn.com www.gohtsn.com www.gohtsn.com
kathy – Easton, MO
March 31, 2008 - 19:04
Subject: head gasket
We, had not one but two 1999 chevy lumina's with this problem:(
And, yes we live in Missouri.
Reply to kathy
CPMJohn – Petaluma, CA
March 31, 2008 - 21:32
Subject: Head or Intake Manifold Gasket?
Hi Kathy,
Be sure you mean the Intake Manifold Gasket. The head gasket alone is not included.
The MO details should be out soon.
Duane Lawson – St louis, MO
March 28, 2008 - 19:16
Subject: 2000 Siverado v6 4.3 why not listed as one of vehicles in settlement
I received letter a while back about the class action suit for dex cool. Which says
If you purchased or lease a gm vehicle with a 4.3 liter engine you may be part of a sub class. Now I see in California agreement There is no mention of Silverado I assume is the engine they are talking about. Now I'm in Missouri is there a difference in settlements as far as models go???? I've had intake manifold leak and water pump replaced within the guidelines. I registered with the lawfirm but no one ever said it would exclude Silverado. I sure other people got the same letter about the class action suit from The Garden City Group what's the Deal???
Thanks
Reply to Duane Lawson
kathy – Northern Illinois
March 29, 2008 - 08:20
Subject: I'm in the same boat with an S10
S10 pickups aren't listed either - I'm in the same boat - same repairs (except not in Missouri).
Reply to Duane Lawson
CPMJohn – Petaluma, CA
March 29, 2008 - 10:24
Subject: Response to Duane
Here's the included Class C vehicles: 1995-2000 Chevrolet Blazers and S-10s equipped with a 4.3-liter V6 engine. They don't separate out Silvarados. Do you have a Blazer or S-10?
This agreement includes all states except Missouri because the State of MO had already authorized its own Class Action Suit. I've been told that the settlement for MO will be the exact same as for the other 49 states. Stay tuned for the MO results. You'll probably have similar forms to fill out.
Reply to Duane Lawson
CPMJohn – Petaluma, CA
March 29, 2008 - 10:27
Subject: to Kathy
Check out the Class C vehicle list. It includes Chevy S-10s and GMC S-15s: www.girardgibbs.com
Scroll down to the Class Cs.
CPMJohn
Reply to Duane Lawson
Duane Lawson – St louis, MO
March 29, 2008 - 11:06
Subject: 2000 silverado with the same 4.3 v6 engine as s-10's
Sorry don't understand response
They don't separate out Silvarados. Do you have a Blazer or S-10? in my subject line I have a 2000 sivlerado 1500 4.3 v6 in the class action letter it just says if you bought or leased a gm vehicle with a 4.3 engine. Am I missing something and 2000 silverado with 4.3 included are excluded. the silverado model wasn't listed in the California decision. My initial letter about the class action- (which I assumed I got based on my engine ) didn't specify certain models.
What am I missing here Did the the lawyers sacrifice Silverado's to get a settlement?
And why wouldn't Silverados be included??? I called and emailed both law firms. the San francisco one said they would call back in 1 business ( I haven't received back 4 working days) the Missouri one I email I's say twice and haven't got a response yet? what gives??
Thanks
Duane
CPMJohn
– Petaluma, CA
