I was hoping that this entry would be the end of the story of the Ordeal of the Camshaft. We had our day in court but we don’t have the end of the story yet. It’s a cliffhanger!
Monday, July 24
This is Victor’s case, I’m just a witness. I’ve been called up for jury duty a few times, but never had to serve. So outside of traffic court I’ve had no dealings with the justice system.
We arrived in Judge Ecton’s courtroom at about 8:00am. A docket is posted on the wall just outside the doors. We were second on the list. After we seated ourselves in the gallery, the court clerk came by and did a little roll call.
Shortly after that the judge entered the courtroom. “Everybody rise!” He took his seat at the bench and gave a little introductory speech. This is not an episode of Judge Judy, or whatever court show you watch on TV. We follow some rules of evidence. There are no surprises here. If you want to introduce an exhibit into evidence, your opponent has to know about it and will have an opportunity to object.
Each side can make a one minute opening statement. Each side may call as many as three witnesses, and each witness is given ten minutes. Then there’s an opportunity for the other side to cross-examine. Then the first side can ask any additional questions that may arise from the cross-examination. The judge controls the stopwatch.
Those are the basic rules, but before we could get to any of that, each case was sent to mediation. This mediation took place in another room, with just the principal parties. As a witness I was not a party in the mediation. The judge instructed that there would be a minimum of fifteen minutes of mediation. If mediation failed to produce an outcome, both parties would return to the courtroom ready to follow the process above.
While Victor and the defendant were in mediation, and after a short pause, the first case was handled. In this case the defendant didn’t show so the plaintiff won automatically. The plaintiff was awarded his claim of $1500.
Then the first case came back from mediation. This was between a Mr. Benson and a Mrs. Benson. Mediation produced a result, and Mrs. Benson would pay Mr. Benson $1300. Because everything was handled outside the room, we in the gallery were left in the dark as to exactly what this was all about. The imagination runs wild: are they man and wife? Brother and sister?
I didn’t check the time, but it was more than half an hour before the mediator for our case returned to the courtroom, Victor and the Ehrlich Toyota people in tow. Mediation failed to provide an agreement, so we would come to trial. But one key point was not disputed: Ehrlich did not contest that the parts they supplied were defective.
So now the fun begins. I admit that I’m not a court reporter, not a stenographer, don’t take shorthand, and didn’t even have a pen and paper to take notes with. I was able to key a few short notes into my phone, but that was the extent of it, and I can’t type worth a damn on my phone. So it’s very likely that my record here contains some minor errors or omissions. I do feel that I’ve recorded the major points fairly and completely.
The woman in charge on their side was the one Victor had been dealing with over the several months this has gone on. I don’t know her position in the company, and managed not to record her name (surprise, surprise) but she’s not one of the owners. She was supported by one of their technical people and at the last minute was joined by one of the Ehrlich family. Between mediation and the start of the trail, Victor wondered aloud why he was dealing with her and not one of the owners. He went out into the hall for a couple of minutes to try to talk to him but returned unsatisfied.
We began with the short opening statements, Victor going first. Nothing particularly interesting was said by either party, with the exception of Victor being mildly chided by the judge. Victor had interrupted the judge. This is a no-no. When it happened I didn’t even notice it, probably because I have a tendency to do the same thing. Almost immediately after that, the judge cautioned Victor for making “inflammatory” remarks. These remarks had to do with our feeling that Ehrlich’s warranty policy was just a policy and didn’t carry the weight of law. It doesn’t absolve them of responsibility for the damage the defective part caused. After this mild dressing down, there were no more cautions from the judge, although I think Victor may have gotten close when he made the same point later in the proceedings.
Victor was the first witness. As he’s also the plaintiff, it obviously wasn’t the usual question-and-answer process one sees on TV. Most of our exhibits were documents, but we did have the damaged head and sprocket. He set the head right on the witness stand, although he never had to point out the damage that was caused by the bad cam. He spent a few minutes going over the events that led us here. He did a pretty good job, even though he seemed to me to be a bit nervous. He was then cross-examined by the defendant.
One of the key parts of Victor’s testimony relates to why Victor is the one with the claim instead of me. Essentially, I assigned the portion of the bill relating to rebuilding the head to Victor. He felt it was wrong to stick me with this bill and that he would make the claim rather than force me to do it. I think the Ehrlich people thought explaining this thought process was a weakness, and they brought it up later in a derogatory way later on.
Victor called me as the second witness. “Raise your right hand. Do you promise to tell the truth, the whole truth, and nothing but the truth?” I do. No bibles were involved, and no swearing to god. “State your name, and spell your last name.” I took my seat at the witness stand.
Victor started with High Mountain Classic’s reputation. What was said about their work? After this experience, did my opinion of their reputation change? A few other questions of that nature. Then Victor had me read a few paragraphs from my blog, a printout of which had been entered into evidence as one of the exhibits. The judge said it wasn’t necessary for me to read any of it, as he’d be able to read it himself, but Victor had me read a key passage anyway.
Next up was cross-examination. Why did I go to High Mountain Classics rather than a Toyota dealer? What was the nature of the work I had them perform? Did I consider using parts other than from Toyota? Is my car a daily driver? Do I take it to the race track, do I race the car? I said that I never considered taking the car to a Toyota dealer. I’ve not known any Lotus owners to do this. I explained my thought process, that I considered going to Ferrari of Denver or to my usual shop (Peak Eurosport) but chose Victor after discussing the issue with him after a club meeting.
When it came to the specific work, the judge interjected some questions. I explained that there were issues with the hardening failing on the cams and that it was recommended that they are periodically inspected for abnormal wear. HMC performed the inspection and found wear was starting and recommended replacement of the parts. I made clear to the judge that the wear problem was totally unrelated to the defect in the parts where the burrs were sent through the motor, damaging the head.
I was a bit surprised by some of these questions. Why was it important to know if I considered other sources for the parts? I told how I came to the decision to use Toyota parts: I looked into the Stage 2 MonkeyWrench racing cam, but dismissed this because it would involve a lot of additional work. I felt that the known, good, Toyota part was the best way to go, and that Toyota reliability was a large factor in purchasing the car in the first place.
I also didn’t understand why they wanted to know if I raced the car. I said that I don’t have a daily commute, that I put an average of eight thousand miles a year on the car and that track days account for a small fraction of the miles. I told the judge that an HPDE day is not competition. In any case, it seems irrelevant to me. This is about the defective part wrecking my engine. I don’t know why they felt it was an important issue.
Van was the technician at HMC that did the work on my car. He was the third witness. Before the trial started we sat together in the back of the gallery and chatted. When I asked him how he got into auto restoration he quickly gave me his entire CV. It starts with him earning a BS in Auto Restoration. I didn’t know such a degree was available. He told me there’s just the one school that offers it. After graduation he’s worked in a number of jobs that sounded quite interesting, including a stint at Tesla.
So, of course, the first thing the defendant did was attack his credibility. Are you a certified Toyota mechanic? Have you ever worked on this particular engine before? Why didn’t you notice that the part was defective before installing it? Why didn’t you do the rebuild of the head? Van is, of course, an ASE certified mechanic. He routinely works on engines he’s never seen before. He says he followed Toyota’s procedure for replacing the part, and that procedure didn’t include anything about checking for burrs in the camshaft internals. Ryan was brought in because HMC was falling behind on the other projects.
Next there was a line of questioning about labor rates. HMC doesn’t use the flat rates. They bill for actual hours, not book hours. I suppose that was to call into question the amount of the bill. But this is misdirection as well, because the hours worked on the rebuild were not Van’s, they were Ryan’s, the certified Lotus mechanic.
Again, I’m somewhat puzzled by many of these questions. There is no dispute that the parts they supplied were defective. They seem to be trying to say that it wasn’t the defective parts that caused the problems, but an inexperienced or incompetent mechanic. (Van, is, of course, neither.)
Ehrlich’s only witness was the woman Victor has been dealing with through this whole process. She emphasized that all the receipts have a disclaimer on them, saying that their warranty does not include implied merchantability and does not cover any labor. During my testimony, the part of my blog that Victor had me read included the bit about all the cams in their stock were also bad. The judge asked if this was true. She said she didn’t know.
In Ehrlich’s closing remark, they proudly stated that had all this happened in their shop, they’d never think of sticking the customer with the bill. This, clearly, was in response to Victor presenting the bill to me with the full amount, which then had the rebuild backed out. I paraphrase, but they essentially said, “We would never leave the customer holding the bag.” And, yet, that’s exactly what they’re trying to do here. HMC is the customer. HMC bought defective parts that caused me extensive property damage, and they’re adamant that they’re not responsible. The didn’t seem to see the irony.
One of the final questions that came up was why Victor is going after Ehrlich rather than Toyota USA or Toyota Japan. Here’s the one place where I thought Victor’s response was weak, but I couldn’t help him out. He said that he was afraid it would cost too much to pursue a giant Japanese corporation, didn’t want to go out of state or out of the country. Ehrlich said that Toyota USA has people here in Denver, so none of Victor’s fears are valid. My answer would have been that we hadn’t had any dealings with Toyota USA or Toyota Japan: we’ve been dealing all along with Ehrlich.
This question, in fact, is the only part of this whole suit that bothers me. Before we started down this path, my research indicated that if we were to go after the wrong party, we could win the case but still never get compensated. If there’s something in the law that we don’t know about (and we don’t know much), we could very well be going after the wrong party.
I don’t know anything about the law, but here’s how I reason this part out. I dealt with Victor, not Ehrlich. Victor dealt with Ehrlich, not Toyota USA. Ehrlich’s transaction was with Toyota USA, who presumably had a transaction with Toyota Japan, who may have had a third (sixth?) party like Denso actually manufacture the part. It’s a chain of command and you can’t go out of sequence. If Victor had stuck me with the bill, it should be obvious that I’d have to make a claim against him and no one else. In fact, it’s generally the case that the chain above Victor is invisible to me. I have no idea, for example, where Peak Eurosport gets their parts.
So Victor has a loss caused by a bad part. And just as the chain of transactions above Victor are invisible to me, the chain above Ehrlich is invisible to him. He can guess, just as I’ve guessed, what that chain looks like. But he can’t really know. The only party he can go after, then, is Ehrlich.
Victor’s only remedy against Ehrlich is this small claims proceeding. Ehrlich, on the other hand, certainly is in a different situation. Had they done the right thing and paid a warranty claim to Victor for the work, they can surely make the claim from where they got the bad part. And we’ve seen that this relationship exists and works. The engineer that came to HMC to inspect my car was from Toyota USA. It was this engineer that authorized the replacement of the defective cams. This is the undisputed fact: Toyota USA admits the part was bad.
It’s a no-brainer that Ehrlich would pay Victor and make a claim to Toyota, because Toyota admits the fault. So why doesn’t Ehrlich do the right thing? Why make Victor take them to court? I can only assume that the claims resolution mechanism in whatever agreements and contracts exist between Ehrlich and Toyota USA do not allow for payment of damages unless one of their guys does the work. You’d think there’d be some sort of arbitration mechanism. Doesn’t anybody in this chain have any general liability insurance that covers this sort of circumstance? I’d hate to think that the only remedy is going to court. Yet, here we are.
It was approaching noon when we headed out the door. It had taken quite a bit longer than I had anticipated. The judge did not come to a verdict. Not knowing how it all worked, I was a bit surprised. I expected an answer. As the man said, this isn’t Judge Judy. It only makes sense that he should have some time to go through the exhibits and review the testimony before making up his mind.
Leaving the courtroom I was unsure of how things would turn out. But after writing it all out here, I feel pretty good. Ehrlich is the only party we can logically go after. Toyota accepted from the start that the parts they supplied were bad. That’s the key piece. Ehrlich’s only defense was misdirection. I made a mistake in not taking it to a Toyota dealer. I abuse the car by racing it. Van can’t possibly fix a Toyota engine. HMC wasn’t qualified to do the work and had to call in the Lotus mechanic. Victor is going after the wrong people. None of this is true, and none of this changes the fact that all the parts they supplied were defective.
I think chances are good that Victor will win. So the question now is, how long before we get an answer? I will, of course, share the results of the case when I learn the verdict.
When Victor called me last week to discuss the case, he mentioned that he saw the video of my exhaust barfing out its insides. I told him half the shops I’d talked to about repairing it had never heard of repacking the exhaust and that said they could send it to Canada for repair. Victor said they do this sort of work all the time on the Bugattis. It only makes sense: where do you go to replace the muffler for a Bugatti 39? Victor had me bring my exhaust with me so I could give it to him to fix. Rather than repacking with fiberglass they’ll use steel wool. It will sound a bit different, but it should last longer.
When I handed it over, I shook it a bit and we could hear the innards rattling around. They both knew immediately what had happened. Through the center of the can there’s a perforated steel pipe. This pipe has rusted away and could no longer hold the packing. (Rust? It took me half a beat. Water is one of the main outputs of combustion.) They’ll cut the end off, replace the perforated pipe, pack with steel wool, weld it back together and I’ll be on my way. I told them there’s no need to hurry as I’m fine running the stock exhaust for a while.