Mistakes Pro Se (and sometimes lawyers) Make in Lemon Law Trials

businessman signing a contract

1. Not recognizing challenges 

New Jersey keeps statistics about lemon law trials and manufacturers win 70% of those trials.  So if you believe you simple need to show 3 repairs or 20 days out of service, you are unfortunately misplaced.

2. Requirement that the Problem Continues   

First, the law typically requires that the problem still exists.  So a lot of consumers lose when they say, I don’t care if they say its fixed and I agree its not malfunctioning now, but who’s to say it won’t malfunction in the future.  The point is I paid 45,000 for this car, I feel unsafe, and I want a reliable vehicle that I can trust.  Sounds good but that is not the legal standard.

Frustrating Phone Conversation
You mean if the problem is fixed, I can’t bring a claim under the lemon law? 

3. Material Impairment

You have to prove that a problem materially impairs use, value, or safety, saying the vehicle is unsafe may not be enough.

4. Doing it Yourself 

One thing we do is review the challenges beforehand, so the consumer is not surprised.  There are provisions for payment if you prevail, and doing it yourself can be a fatal and unnecessary mistake.

5. Lack of Expert Testimony and the Vehicle Characteristic Defense

Some problems are evident but sometimes, a manufacturer will suggest a condition is simply a product of the car’s design.  If a 4 cylinder vehicle is sluggish, that’s because the vehicle is designed for good gas economy.  Expert testimony can frequently dispel the claim of product design and help establish a problem.  We had a case involving an conditioner that periodically malfunctions, with the manufacturer submitting that the problem did not impair use, value, or safety.  However, the expert explained that the underlying problem impacted the engine, and the judge agreed the issue was substantial placing it under the lemon law.

6. Choosing the Wrong Forum

There are relatively strict requirements for lemon law cases in the Office of Administrative Law, but a variety of claims can be brought in court.  An attorney can help review where the case should be filed.

7. Getting a Lawyer Too Late 

A sadly  over-confident client loses a lemon law trial and then consults a lawyer.  Appeals may be time-consuming and clearly it is better to review options before trial.


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Arguments Manufacturers Use in Lemon Law Cases

  1. Different Problems 

    Although Plaintiff raised three different complaints that generally related to her “radio system” during the Lemon Law rights period, none of those concerns constitute a “serious safety defect.” Id Additionally, because each radio-related complaint was different (referring variously to the tape player, the speakers and a software fault), they do not constitute “the same nonconformity subject to repair three or more times.  Turrell v Mercedes, Manufacturer’s Trial Brief

  2. Problem Not Identified in Prior Correspondence 

    Here, Plaintiff sent correspondence to MBUSA describing her alleged hesitation defect, but the correspondence did not describe any transmission, radio or brake system defects. (Ex. H, attaching Letters)

  3. Problem Did Not Substantially Impair Use, Value, or Safety

    “It is generally understood by courts and commentators across the nation that a trivial complaint or merely aggravating defect does not constitute a “substantial impairment.” See, e.g.. General Motors Acceptance Corp. v. Hollanshead, 663 N.E.2d 663 (Ohio Ct. App. 1995) (finding no substantial impairment where “none of the problems defendant had with her vehicle affected its engine, drivetrain, or mechanical functioning in any way.”); Johns v. American Isuzu Motors, Inc., 622 So. 2d 1208 (La. Ct. App. 1993) (a “rattle” that could not be duplicated by technicians working on the car did not constitute a substantial impairment); State v. Martinez, 604 N.W.2d 304 (Wis. App. Ct. 1999) (holding that jury instructions defining “substantially” as “seriously” and stating that “the condition or defect must be more than an annoyance or minor inconvenience” were proper); Mercedes-Benz Credit Corp. v. Lotito, 746 A.2d 480 (N.J. Super. Ct. App. Div. 2000) (finding no substantial impairment where buyer complained of rotten egg smell that was merely a minor inconvenience, and a normal condition of that particular make of car); Jolovitz v. Alfa Romeo Distributors of North America, 760 A.2d 625,628 (Me. 2000) (holding that “substantial” means “being of considerable amount or intensity;” no substantial impairment where an annoying squeak and an occasional odor of gasoline were the only uncorrectable defects).”  Turrell.

  4. Mileage rebuts claim of substantial limitation of use

    One of the well-established standards considered by courts in determining whether the alleged defects objectively impaired the use, value or safety of the vehicle is the extent of the consumer’s use of the vehicle

    Here, Plaintiff has driven the allegedly defective vehicle for significantly longer, and logged significantly more miles, than either of the plaintiffs in Mayhew and Freedman.   Plaintiff has driven the subject vehicle for six years and seven months, and has logged at least 100,000 miles (if not more). Plaintiff admits that she drives the vehicle every day for both business and personal errands, and even drives it on numerous annual vacations throughout the southeast. Plaintiff cannot establish the objective element of the “substantial impairment” test an therefore cannot succeed on her Lemon Law claims.

    businessman signing a contract

    We can help rebut these defenses in your lemon law case.  Call (973) 598-1980 for a Free Consultation

Chevy Silverado and GMC Steering Defect

NHTSA logo

General Motors has recalled almost 700,000 2014 Chevy Silverado 1500s and 2014 GMC Sierra 1500s  for a steering defect following a National Highway Traffic Safety Administration investigation (NHTSA # 17V414000).  The steering defect can cause a potentially dangerous problem driving and turning.

These trucks’ power steering assist (“EPS”) can cut out, especially during low speed turns, and then return suddenly.  This may result in a loss of control of the vehicle.  Additional symptoms of the problem may include other electrical systems cutting out and warning light indicators going off.

According to GM the underlying problem is a defect in the EPS module software, which needs to be reprogrammed.

If you are having steering problems with your 2014 Chevy Silverado or GMC Sierra, call the Law Office of Howard Gutman for a free consultation on your claim.

Toyota Camry Piston Problems

A report from Carcomplaints.com discussed problems with Toyota Camry engine piston.

Recall: 2018 Toyota Camry Cars May Need New Engines

product recallMarch 28, 2018 — Toyota is recalling 1,700 model year 2018 Camry cars to possibly replace the entire engines because of problems with the pistons.

The supplier of the pistons was performing a routine that required repositioning of the machining tool. Toyota says the tool was not returned to the correct position, resulting in pistons being produced with a diameter larger than specification.

The automaker says the cars may have pistons too large for the engines that can cause the engines to make noise and run lousy. In addition, the new cars could emit smoke from the exhaust while drivers watch illuminated warning lights and messages.

The problem can be so bad the 2.5L, 4 cylinder A25A-FKS engines can stop running while the cars are moving.

The automaker will start mailing recall notices in May 2018. Toyota dealers will inspect the production date codes of the pistons and replace the engines if needed.

False or Worthless Warranty Claim

Woman with broken car

A lawsuit claims that a New Jersey-based auto dealer that specializes in high-end used cars sold customers warranties that did not exist and pocketed the thousands of dollars customers paid for them.

The suit alleges that the firm and its employees pushed and sold the warranties to unsuspecting car buyers for years. Some customers claim they only learned the warranties were no good when they tried to use them after their vehicles developed problems.

Complaints about worthless or deceptive warranties are common.

Several laws can be violated,

1) New Jersey Consumer Fraud Act prohibiting deception, unconscionable practices, and fraud,

2. New Jersey Used Car Lemon Law,

3. Federal Magnuson Moss Act.

Call (973) 598-1980 for a Free Consultation on Your Warranty Claim

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GM Air Conditioning Problem

Owners of certain makes and models of General Motors vehicles have been reporting air conditioners blowing warm air, not enough air, or failing altogether.  Not only have their air conditioners failed, but they have had to wait months for the dealer to obtain replacement parts to correct the defect, because GM is swamped with A/C fixes.

AC button 2

Two proposed class action lawsuits cover the following vehicles:

  • 2015-2017 Cadillac Escalade
  • 2014-2016 Chevrolet Silverado
  • 2015-2017 Chevrolet Suburban
  • 2015-2017 Chevrolet Tahoe
  • 2014-2016 GMC Sierra
  • 2015-2017 GMC Yukon

If you own one of the above vehicles and are experiencing problems with your air conditioning, contact us at 973-598-1980 for a free consultation on your potential claim.


Chevrolet Silverado Manufacturer Service Bulletins

Owners of the Chevrolet Silverado have experienced multiple problems.  GM has issued various service bulletins, as compiled by carcomplaints.com, but the reports continue.  Owners may be entitled to new vehicle, compensation, or other relief.

Broken Air Conditioning


TSB #SB-16-NA-109
NHTSA ID #10078430
Date Announced:
APRIL 01 2016
Chevrolet Silverado Service Bulletins
How to Fix

NHTSA ID #10083321
Date Announced:
AUGUST 16 2016
Additional Info:
How to Fix

TSB #SB-09-03-09-001D
NHTSA ID #10078480
Date Announced:
APRIL 12 2016
Additional Info:
How to Fix

TSB #SB-09-03-09-001D
NHTSA ID #10078480
Date Announced:
APRIL 12 2016
Additional Info:
How to Fix

TSB #PIT-5507
NHTSA ID #10078875
Date Announced:
MAY 10 2016
Additional Info:
How to Fix

TSB #PI1394A
NHTSA ID #10082869
Date Announced:
AUGUST 29 2016
Additional Info:
How to Fix

Call (973) 598-1980 for a Free Consultation on Your Claim

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So this is supposed to fix the car finally?

Ford Escape, Fiesta Coolant Leak

Ford announced that a coolant leak recall is set to begin for owners of Ford Escapes, Fiesta STs, Fusions and Transit Connects, with 2014 Escape SUVs first on the list.  The recall was first announced in March 2017 that covers about 230,000 model year 2014 Ford Escape, 2014-2015 Ford Fiesta ST, 2013-2014 Ford Fusion and 2013-2015 Ford Transit Connect vehicles.  The vehicles can overheat and catch on fire because a lack of coolant causes the cylinder heads to overheat and the heads to crack. This can cause pressurized oil leaks that can result in engine compartment fires.  All the vehicles are equipped with 1.6-liter EcoBoost engines, but when all the vehicles will be repaired is up in the air. Ford says parts are now available to complete the recall on Escape SUVs only.

The coolant leak may leak to air-conditioning problems, engine issues, and other concerns.  Owners experiencing problems may be entitled to compensation.

Call (973) 598-1980 for a Free Consultation on Your Claim


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Chrysler Water Leak, Repurchase of Vehicle Order in case handled by Law Office of Howard Gutman

State of New Jersey,  Office of Administrative Law


Howard A. Gutman, Esq. for petitioner

Beth Wallach, Esq., for respondent (Hardin, Kundla, McKeon, Poletta & Polifroni, attorneys)


Statement of the case and procedural history

Robert A. Giglio filed an application for the Lemon Law dispute resolution with the New Jersey Division of Consumer Affairs on or about November 25, 2002, seeking relief from the respondent under the provisions of the New Jersey Lemon Law, N.J.S.A. 56:12-29 to-49. Their application was accepted on December 3, 2002 and subsequently transferred to the Office of Administrative Law as a contested matter pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. This matter was scheduled to be heard at the Newark location on April 4, 2003 and the hearing took place on that date. After the hearing took place on April 4, 2003, the record was closed.

Robert A. Giglio was the first to present testimony with regard to this matter. Mr. Giglio, the petitioner, testified that he purchased the vehicle in question, a 2001 Dodge Dakota, on August 25, 2001 and took delivery of the vehicle on that date. The total sales price of the vehicle was $27,208.05 and the vehicle was financed at the time of the purchase (see Exhibit P-1).

Petitioner testified that amongst the difficulties he has reported and attempted to have serviced at the dealership are the following: (1) vehicle surges forward when stopped due to erratic idle problem; (2) front passenger floor consistently fills with water due to leak problem; (3) the bed of the truck is misaligned; (4) there are paint defects on the body of the vehicle in question.

From the petitioner’s testimony, it appears the largest problem is that of the consistent water leakage. Petitioner testified that on numerous occasions he has brought the vehicle in for repairs for the water problem which takes place consistently on the passenger side of the vehicle. Petitioner testified that large puddles have formed on the right front passenger side of the vehicle which creates an inundated carpet and results in a smell due to the carpet soaking up this water.

Petitioner then proceeded to go through various work orders outlining and confirming the fact that he brought his vehicle in for repair. The first work order has to do with rough idling of the vehicle and indicates that the vehicle was serviced at the time (see Exhibit P-2). The next work order  indicates that on November 12, 2001 the vehicle was brought in when it had 2,569 miles. This work order indicates that there are allegedly transmission problems, erratic stalling problems and, most significantly, front area water leak problem. This invoice indicates that the car was serviced and returned to petitioner.

Petitioner next testified that on January 8, 2002 he once again brought the vehicle in for repair when it had a total of 4,516 miles on it (see Exhibit P-4). This repair order indicates the vehicle was brought in for, among other things, water leaking on the front passenger floors.  Among the other problems complained of was once again wet carpeting on the passenger side of the vehicle, an alleged water leak and paint issues.
Petitioner then testified with regard to another service that took place on February 8, 2002. The vehicle at this point in time had 5,218 miles (see Exhibit P-6). Once again, petitioner was complaining of smells from the carpeting on the passenger part of the car due to alleged water and other difficulties with the vehicle. The invoice seems to reflect that the vehicle was serviced and then returned.

Petitioner then testified to his last chance letter he sent to the manufacturer with regard to the variety of alleged defects (see Exhibit P-8). Petitioner testified with regard to continuing problems with the vehicle. Petitioner presented Exhibit P-9 which demonstrated the vehicle was brought back to the dealership on November 4, 2002 for the continual problem when it had 15,551 miles. On the second page of this invoice it indicates that the vehicle has been there three times and once again it appears the vehicle was serviced and returned to petitioner. Petitioner also testified to and brought into evidence Exhibit P-10 which shows that new carpeting was ordered for the vehicle in question as a result of what apparently was supposed to have been repaired, namely, the water leak in the front passenger portion of the vehicle itself.
Petitioner then emphasized that the water problem has never been fixed and to this date has not been fixed. n cross-examination, petitioner was examined with regard to the surging of the vehicle and the water problem and still maintained that all these problems were occurring to this date.

The next person to testify on behalf of petitioner was James Cookingham who was presented to the Court as an expert in automotive vehicle repair. No objections to this individual testifying as an expert was raised by respondent and he was admitted as an expert in automotive vehicle repair.

Mr. Cookingham testified that he examined the vehicle in question on or about January 3, 2003 and identified and presented to the Court his report with the results he found after examining the vehicle (see Exhibit P-12).   Mr. Cookingham testified that he found the body and paint damage to be minimal and that he was not able to repeat nor could he confirm the alleged erratic idling of the vehicle or surging of the vehicle. Mr. Cookingham did testify, however, that he found and confirmed a significant amount of water in the right front passenger portion of the vehicle, that he believed there was a leak, that he believed the leak was not coming through the vehicle but rather was being caused by some kind of condensation or clogging problem with regard to the air conditioning system and that he believed this was the source of the problem in question.
Mr. Cookingham also testified that you could have a large amount of water caused by this condensation and that temperature was not necessarily a factor with regard to the workings of the air conditioner as it did operate during the winter when defrosters were in operation.


Respondent then put on its case. David Flisler testified on behalf of respondent. Mr. Flisler is District Manager with Daimler Chrysler and by stipulation it was agreed that he was considered to be an expert with regard to repair and servicing of this type of motor vehicle.

Mr. Flisler testified that he examined the vehicle on the date of the hearing and that he was unable to observe or cause to occur any engine surges or rough idling problems. Mr. Flisler did testify that he observed a large amount of water in the front passenger compartment, but that he found the water to be clean, that it was not stagnant, that it did not have an odor, and he did not believe that it occurred naturally. Mr. Flisler testified that in his opinion he believed that water had been externally placed there on this date and there was no way any leakage or even condensation from air conditioning system of the vehicle could have caused that large amount of water to be present. He stated that when he stepped on the carpeting in question the water that was squeezed out was clear and not discolored.

On cross-examination, Mr. Flisler reiterated his belief that a naturally occurring leak did not cause the problem in question but he could not explain all the various repair orders and treatment for the water problem that occurred at the various dealerships involved as they did not appear to spot anything other some kind of accidental occurrence of the water that was purported to be in the vehicle itself.

I found the petitioner’s witnesses’ testimony to be very credible. I fully believe Mr. Giglio’s testimony to be truthful, I found his expert’s testimony to be truthful and candid, and I found Ms. Giglio’s testimony with regard to the problems she had when she rode in the vehicle to be truthful as well. I found that all three of petitioner’s witnesses were entitled to tremendous credibility and I could not find any reason for disbelieving their testimony.

While I believed respondent’s witness’ testimony to be truthful, respondent’s witness was unable to back up his allegation that the water was put there by an outside source other than his opinion. He could not explain the previous treatments for the alleged water leaks which were presented on invoices by various, not only one, dealerships and, therefore, I was able to give very little weight to respondent’s expert’s testimony that he felt the water was placed there by an outside force. I did give tremendous credibility and weight to this expert’s testimony with regard to lack of any apparent problems with regard to the surging and minor impact of the paint defects.


The New Jersey “Lemon Law” N.J.S.A. 56:12-29, et seq. provides relief for a consumer who purchases or leases a vehicle with a non-conformity which the dealer or manufacturer is unable to correct within the time frame set forth by the statute. A “non-conformity” is defined by N.J.S.A. 56:12-30 as a defect or condition which substantially impairs the use, value or safety of a motor vehicle.

The Lemon Law further obligates the manufacturer/dealer to make all required repairs once a consumer reports a non-conformity in the motor vehicle to said manufacturer/dealer during the first 18,000 miles of operation or during the period of two years subsequent to date of original delivery of the vehicle. N.J.S.A. 56:12-32 goes on to state that if said manufacturer/dealer is unable to repair or correct the non-conformity pertaining to said motor vehicle within a reasonable time frame, then the consumer is entitled to a refund as set forth in the statute.
The burden of establishing by a preponderance of the credible evidence that the alleged non-conformity in the vehicle is a defect or condition that substantially impairs the use, value or safety of the vehicle rests with the petitioner. See N.J.S.A. 56:12-30. It is clear that petitioner must prove same in order to succeed in a claim under the Lemon Law. See Anastasio v. Mitsubishi Motor Sales of America, Inc., OAL Docket CMA 2100-90 (April 23, 1990).

The mere statement by a petitioner that he was not happy with having to have brought this vehicle back seven times for problems with said vehicle is not necessarily sufficient to satisfy the Lemon Law. There must be additional objective factual findings and evaluations to bolster this particular feeling or opinion of the consumer that the vehicle falls within the Lemon Law statute and these claims must be factually demonstrated by the petitioner in a successful fashion. See Coppeto v. Acura Division of American Honda Motor Company, Inc., CMA 11149-98, Initial Decision (March 2, 1999), adopted by the Director (March 20, 1999).
Mr. Giglio’s testimony with regard to the water soaked nature of the front passenger compartment and the smell that he experienced there, together with his wife’s testimony confirming the smell and the testimony presented by their expert, Mr. Cookingham, and supporting documentation consisting of all the various repair invoices that they received from the dealer when the vehicle was brought back for this problem.   I found Mr. Giglio’s and his wife’s testimony, together with the expert’s testimony, Mr. Cookingham, to be credible and I was convinced by a preponderance of the evidence presented by petitioner, his wife and his expert witness that the problem complained of in regard to the consistent water leakage in said vehicle still exists and to date has not been corrected. I found and gave very little credence to respondent’s expert’s explanation that it appears the water was externally placed in the vehicle, because other than that being respondent’s expert’s opinion, no corroborated proof was demonstrated, nothing was presented that would override consistent credible evidence presented by petitioner, his wife and their expert. Most convincing was the petitioner’s expert’s testimony coupled with all the various invoices which consistently show clearly a water problem in the front passenger portion of this vehicle, with the replacement of what appeared to have been soggy carpet and as was testified to clearly no resolution of the problem in question. As a result, I FIND that petitioner’s testimony, by a preponderance of the credible evidence, fully demonstrated the problem with regard to the water leakage and odors and mold that it creates at the front passenger portion of the vehicle still exist to this date, and that same has not been corrected in accordance with the parameters of the Lemon Law.
The testimony indicated that the vehicle was purchased, inclusive of finance charges, taxes and license fees, for a total of $27,208.05. Petitioner expended $50 in filing his Lemon Law Complaint. The mileage on the vehicle at the attempt of the first repair pertaining to the water problem was 4,150 miles. I am satisfied that these numbers relect the actual and correct figures regarding the vehicle in question.

Subsequent to the hearing, this Court received certificate of services from petitioner’s counsel, Howard A. Gutman, Esq. I have reviewed the certification of services which contains not only the time expended by the petitioner’s counsel but fees charged by the expert who made an appearance at the hearing as well, together with costs, and find the hourly amount charged together with the time expended on the file to be within normal parameters for a case of this type.

Therefore, in addition to the above-referenced figures, I FIND the petitioner’s counsel’s fees and expert’s costs totaling $2,821 conform with normal parameters for a case of this type and I FIND said counsel fees and expert’s costs on the detailed invoice dated April 9, 2003 to be acceptable.

Findings and Order

Based upon the above referenced factors and the testimony described above, I FIND that petitioner has demonstrated by a preponderance of the credible evidence that the vehicle in question has serious defects with regard to water leakage that consistently takes place in the front passenger compartment of the vehicle and that this affects the use, value or safety of the motor vehicle itself. I.   I FIND that petitioner has given respondent every opportunity required under the Lemon Law to repair the defects complained of, that a last chance letter was forwarded to respondent in accordance with the Lemon Law and

I further FIND that the expectation of petitioner with regard to the use, operation and safety of the vehicle has not been met and has been seriously affected by the fact that respondent has failed to repair the defects complained of in an appropriate and timely fashion and indeed has failed to repair these defects at all. Further, as a result of the problems complained of by petitioner, I FIND that the value of the vehicle is more than likely to be severely affected and diminished as a result of anyone seeking to purchase said vehicle. I therefore CONCLUDE the vehicle in question is a lemon as defined by the Lemon Law statute and pursuant to N.J.S.A. 56:12-32A, the manufacturer shall be directed to give to the petitioner all remedies as set forth in said statute in terms of costs, expenses, fees, sales taxes, license and registration fees, and reasonable attorney’s fees and expert witness fees, minus an appropriate allowance for vehicle use as set forth in the statute.

The following monies are due as reimbursement to petitioner and so ORDERED that petitioner be reimbursed accordingly. The total purchase price of the vehicle involved is $27,208.05. Subtracted from this figure should be a total of $1,129.13, representing the total mileage of 4,150 miles at the time the water problem was first reported and brought into a servicing dealership divided by 100,000.  Therefore, it is further ORDERED that respondent provide petitioner with a separate check in the amount of $2,821 to cover the cost of petitioner’s attorney’s fees, expert’s fees and costs. Adding this total to the $26,128.92, petitioner is entitled to total reimbursement of $28,949.92. This total should be paid either to petitioner or the appropriate portion paid to the entity that has financed the vehicle.
It is hereby ORDERED that respondent pay the petitioner the sum as calculated above and in the manner as set forth above.

(portions of the decision not relevant to the final outcome have been abridged).




Owners of  the 2016-18 Chrysler Pacific have experience engine and stalling problems on their vehicle.  Owners may be entitled to compensation or new vehicles because of these problems.  One source explains,

“Chrysler Pacifica stalling problems have caused a recall that will allegedly fix problems that typically occur while the minivans are making turns, driving slow steady speeds, while idling or when starting.

The recall includes nearly 154,000 model year 2017 Chrysler Pacifica non-hybrid minivans in the U.S., nearly 7,500 in Canada, more than 970 in Mexico and about 245 outside North America.

Pacifica drivers who complained about stalled engines were allegedly able to restart their minivans immediately afterward.

Fiat Chrysler (FCA US) says “under a rare set of conditions” the engine control module (ECM) can misread the operating status of the engine, causing the engine to stall.

Chrysler knows of one crash allegedly connected to the stalling problem, but is unaware of any injuries.

FCA says the fix involves dealers installing updated engine control software, but the automaker didn’t say when this will occur.

Owners of the recalled minivans may contact FCA customer service at 800-853-1403.

The 2017 Chrysler Pacifica recall follows a petition to investigate stalling problems in the minivans filed by the Center for Auto Safety (CAS) and Pacifica owner Adam J. Cohen. The November 2017 petition asked the National Highway Traffic Safety Administration (NHTSA) to open an official investigation into complaints made about the minivans.

In addition to wanting NHTSA to investigate the problem, CAS said FCA should recall the non-hybrid minivans and provide loaner vehicles until the Pacificas are correctly repaired.”  http://www.carcomplaints.com

Call (973) 598-1980 for a Free Consultation on your Claim

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