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July 31, 1985

JOHN F. "JACK" WALSH, et al., Plaintiffs

The opinion of the court was delivered by: GREEN

This matter is before the Court on plaintiffs' Motion to Expand the Certified Classes to Include All Purchasers of the Subject 1976 and 1977 Model Year Vehicles Prior to August 21, 1977, Regardless of Whether They Experienced Park-to-Reverse Incidents Before or After November 2, 1977; defendant's Motion to Narrow Certified Classes with Respect to Statute of Limitations Issues; oppositions thereto; and the entire record herein. For the reasons set forth below, the Court grants plaintiffs' motion and denies defendant's motion.

 Plaintiffs' Motion to Expand Certified Classes

 Plaintiffs seek reconsideration of the Court's prior ruling on the statute of limitations question raised in Ford Motor Company's ("Ford") motion to dismiss the second amended complaint. In the March 14, 1984 memorandum opinion the Court determined that the claim of fraudulent concealment in this case would not toll the limitation period of four years. The Court reasoned that although the first two elements of fraudulent concealment, that of alleged deliberative concealment on the part of the defendant and plaintiffs' failure to discover the basis of the lawsuit, were satisfied, the remaining element, that of due diligence, was not. Walsh v. Ford Motor Co., 588 F. Supp. 1513, 1521-23 (1984). The Court, therefore, concluded that all persons who purchased their vehicles prior to August 21, 1977 *fn1" and have alleged incidents or complained to Ford or its dealers on or after October 1977, *fn2" are barred by the statute of limitations to assert warranty claims. Id. at 1523.

 Plaintiffs aver, and the Court agrees, that this conclusion on how the question of due diligence should be applied cannot be the law. Surely a person who purchased a Ford vehicle prior to August 21, 1977, and who did not experience an incident until long after the announcement of the National Highway Traffic and Safety Administration ("NHTSA") investigation, could hardly be accused of a lack of due diligence. As plaintiffs note, the nonincident owners who could not have known prior to October 1977 that they may have a claim, were under no duty prior to that date to investigate the possibility of pursuing a claim against Ford. Plaintiffs' Reply Memorandum at 4. Under the doctrine of fraudulent concealment "time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit." E.g., Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220, 228 (D.C. Cir. 1977). The limitation period must, therefore, be suspended until October 1977, the date alleged in the complaint in which plaintiffs could, through the exercise of due diligence, have discovered the basis of the lawsuit. Because plaintiffs filed this action on August 21, 1981, less than four years from the date plaintiffs were effectively put on notice of a potential claim against Ford, the limitations period does not bar any plaintiffs from pursuing this action.

 Defendant's Motion to Narrow Certified Classes

 Ford avers that the Court must limit the certified classes by requiring that each plaintiff specifically claim that they were misrepresented in some way by Ford's action. Ford bases this argument on "what is actually stated in the Amended Complaint." Reply Memorandum of Ford Motor Company in Support of the Motion to Narrow Certified Classes with Respect to Statute of Limitations Issue at 2. In examining the Second Amended Complaint it is plain that the plaintiffs do not base their claim of fraudulent concealment solely on the individual acts of certain plaintiffs. The complaint states:

Ford actively concealed the defects and extraordinarily high frequency of park to reverse incidents in its FMX, C-3, C-4, and C-6 transmissions by systematically denying the existence of any tendency of such transmissions to jump from park to reverse and by asserting contrarywise that such transmissions always slipped into reverse only because of the vehicle operator's negligence. Purchasers and owners and passengers who incurred personal injuries in connection with vehicles sold prior to August 21, 1977 were thereby discouraged from investigating and seeking a remedy for such defective transmissions and could not through the exercise of due diligence have discovered Ford's potential liability. . . . Notwithstanding . . . internal knowledge of a major problem, every time a consumer who had experienced a park to reverse problem complained to Ford, Ford responded that it was the consumer's fault, always concealing the large volume of such complaints it had received.

 Plaintiffs' Second Amended Complaint para. 33.

 In the March 14, 1984 memorandum opinion the Court noted:

In their complaint, plaintiffs not only allege that Ford actively concealed the existence of a transmission defect, but also told those who inquired about the problem that the alleged incidents were caused by driver error and negligence.

 Walsh v. Ford Motor Company, 588 F. Supp. at 1522. It therefore concluded that

plaintiffs have adequately pleaded that Ford did actively and affirmatively misrepresent to certain plaintiffs that the transmission failure occurred, not because of possible design flaws, but because of driver error, despite knowledge of numerous complaints alleging exactly the same problem. Therefore, the Court finds that plaintiffs have adequately pleaded the first element necessary for proving fraudulent concealment, i.e., wrongful concealment by Ford.

 Id. at 1522-23. Based on the above, the Court again concludes that plaintiffs have alleged wrongful concealment, not simply for certain individual plaintiffs, but for the entire class.

 Also in defendant's motion Ford notes that for purposes of establishing the date on which plaintiffs could have reasonably known that Ford's explanations may not have been true, the date is October 1977 and not November 2, 1977. It argues that if the Court should look beyond the complaint for determining when the limitations period shall begin to run, a date much earlier in time should be used. In opposition, plaintiffs aver that a date sometime ...

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