Some Nissan drivers were feeling shaken in more ways than one.
Owners of Pathfinders and Infinitis asked for repairs after they discovered that stepping on the gas led their transmissions to shake and jerk violently, preventing them from accelerating, they claimed. But Nissan North America couldn't fix the problem, or in some cases even confirm that it existed, according to a federal lawsuit.
After two and a half years of litigation, a Miami federal judge gave final approval to a nationwide class action settlement providing extended warranties to owners of the affected cars. The agreement, which also includes a cash component for class members who already sold their cars, is worth at least $37 million, according to court documents.
As part of the settlement, Nissan certified that it identified the software issue causing the shaking and that a transmission repair was available.
"It was essential that Nissan had a fix; otherwise, the extension of the warranty would mean nothing," said Miami attorney Ronald Weil of Weil Quaranta, who served as class counsel.
The alleged defect was found in a continuously variable transmission in 2013-14 Nissan Pathfinders and Infiniti JX35 and QX60s, according to the lawsuit. The shaking tended to happen when drivers were trying to speed up to merge into traffic, "creating a serious safety risk for the driver, the affected vehicles' occupants, other drivers and pedestrians," the complaint alleged.
Nissan was unable to replicate the problem in road testing, the company argued. But the plaintiffs alleged the company knew about the defect before any of the affected cars went on sale and that it was "secretly reprogramming" transmission control software without alerting anyone to the problem.
Settlement discussions in February 2016 with mediator Rodney Max ended in an impasse, and the lawsuit proceeded to the class certification stage. Nissan argued the plaintiffs could not bring their claims as a class because their situations differed too much: Some people brought in their cars for repairs several times, for instance, while others might have tried only once.
The plaintiffs presented 1,000 pages of evidence in favor of class certification, including testimony from Steven Gaskin, a marketing science expert who has developed a technique to calculate the potential economic damages of car owners who never saw the defect show up in their vehicles.
Plaintiffs counsel knew if Nissan was successful, the cost of litigating each plaintiff's claims individually would likely outweigh any beneficial result, Weil said.