Perona v. Volkswagen of America, Inc.
24 N.E.3d 806
Ill. App. Ct.2015Background
- Plaintiffs (Perona, Izenstark, Mawler) filed a long-running class action (original complaint 1987) alleging Audi 5000 (1984–86 automatic) unintended acceleration caused by design/manufacturing defects and concealment under Illinois Consumer Fraud Act.
- Sixth amended complaint (2003) alleged four specific defects: lever/cable linkage, brake/gas pedal placement, cruise control system, and shift‑lock system; class limited to Illinois purchasers.
- In May 2005 plaintiffs expressly withdrew the lever/cable and cruise control defect claims in interrogatory answers; Audi and the court relied on that withdrawal in later discovery rulings.
- Plaintiffs later sought discovery and expert testimony (theory: EMI causing unintended throttle opening via cruise control ECU); court barred renewed cruise‑control discovery as abandoned and granted a protective order.
- Frye/Donaldson hearing: plaintiffs’ experts (Sero, Berg) offered EMI/propensity opinions; defendants’ expert (Donner) testified Audi 5000 had a mechanical throttle (immune to EMI) and cruise control ECUs were metal‑housed. Court struck plaintiffs’ expert affidavits and granted summary judgment for Audi; plaintiffs’ cross‑motion for summary judgment denied.
- Plaintiffs’ motion for leave to file a seventh amended complaint (new negligence/fraud theories, nationwide class, theory based on propensity) was denied as untimely and prejudicial; privileged internal Audi documents were ordered returned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court abused discretion by barring renewal of cruise‑control discovery after plaintiffs’ 2005 withdrawal | Withdrawal was unclear; court should allow investigation of EMI‑related issues; protective order unfair | Plaintiffs expressly withdrew cruise‑control claim in 2005 and sat on new discovery for years; reopening is untimely and prejudicial | No abuse of discretion; withdrawal deemed abandonment and protective order proper |
| Whether leave to file seventh amended complaint should be granted | Amendment deletes surplus defect allegations, pleads concealment of propensity and adds negligence/fraud; Audi wouldn’t be surprised | Proposed amendment is untimely after 25 years and discovery closure; would prejudice Audi and require reopened discovery | Denial affirmed: amendment untimely, prejudicial, and not justified by new facts |
| Whether plaintiffs were entitled to summary judgment on Consumer Fraud Act without proving a specific defect (propensity theory) | Need only show class vehicles had a propensity to unintended accelerate; specific defect not required | Plaintiffs changed theory from pleadings; summary judgment must follow pleaded theories; Audi raised disputed facts | Plaintiffs not entitled to summary judgment; cannot shift to unpled propensity theory; genuine disputes exist |
| Whether Audi entitled to summary judgment after experts’ opinions excluded and on merits | Plaintiffs’ experts insufficient; some defect claims abandoned; Audi’s evidence shows mechanical throttle and pedal‑error explanations | Plaintiffs argue expert exclusion and credibility disputes should not resolve summary judgment | Affirmed: plaintiffs lacked admissible evidence of pleaded defects; Audi entitled to summary judgment; expert opinions excluded or inadequate |
Key Cases Cited
- Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59 (1997) (appellate court previously revived Consumer Fraud Act claim but limited it to vehicles bought before Audi press releases)
- Connick v. Suzuki Motor Co., 174 Ill. 2d 482 (1996) (Consumer Fraud Act pleading particularity and elements)
- Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403 (2002) (elements of Consumer Fraud Act)
- Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63 (2002) (Frye/Donaldson standard governs scientific expert admissibility)
- Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905 (1994) (issues in controversy fixed by the pleadings; court looks to pleadings on summary judgment)