— A Nissan automatic emergency braking lawsuit once certified as a class action has now been decertified for customers in 10 states.
The class action lawsuit includes these Nissan vehicles equipped with Advanced Radar Sensor (ARS) 410.
- 2017–2020 Nissan Rogue
- 2017–2021 Nissan Rogue Sport
- 2019–2021 Nissan Altima
- 2020–2021 Nissan Kicks
In 2017, some Nissan drivers reported “phantom activations” of the automatic emergency braking (AEB) systems at low overpasses, railroad crossings and parking garages. Engineers believed the radar hardware could misread the road ahead when drivers approached an incline or turned on a curve.
On a curve, the radar might treat a car in the adjacent lane as an obstacle in the road. Driving uphill in a multi-tiered parking garage might mean the radar reading a low-hanging overpass as an incoming wall.
There were hardware limitations, so Nissan released software update “S1” in 2018, and in 2019 Nissan released software update “S2” to refine target recognition.
By August 2022, around 63% of ARS 410 radar-equipped Rogue, Rogue Sport, Altima, and Kicks owners had upgraded to the S2 software.
Class action lawsuits were filed alleging the automatic emergency braking systems activated suddenly while driving. A district court judge certified a class action lawsuit, but for only these 10 states: California, Connecticut, Florida, Illinois, Massachusetts, Missouri, New York, Ohio, Pennsylvania and Texas.
According to the plaintiffs, a single Nissan radar problem affects all the vehicles, and Nissan admits the problem can cause safety hazards.
But Nissan argues the lawsuit involves dozens of separate and distinct versions of products.
An expert for Nissan testified brake-related warranty claim rates varied widely with which Nissan model was involved and which software update was involved.
"Owners of newer models were significantly less likely to seek repairs for their vehicles, which indicated that different claimants experienced different defects based on different combinations of vehicle models and software versions. Because some of the plaintiffs purchased their vehicles before the release of later model versions and updates, Nissan’s knowledge of these defects would vary depending on when each claimant purchased the vehicle."
Nissan appealed to the Sixth Circuit which decertified the class action for the 10 states.
The appeals court says there is conflicting evidence about a "common" defect with the automatic emergency braking systems across the span of all owners.
"Even if we assume for the sake of argument that one 'defect' links all of these claims, software updates to the system radar and control units remedied those alleged flaws in some cars. The district court must grapple with those updates to answer whether the existence of a defect can be established in one stroke."
The appeals court notes how some Nissan drivers may not have experienced the braking problem at all and not all customers attempted to repair the vehicles.
And the court questioned just how "common" the defect is for all models and customers when Nissan released different software updates for different problems. In addition, some owners said those updates seemed to fix the automatic emergency braking systems.
"We cannot determine whether common evidence establishes Nissan’s knowledge as to the defects if the software updates remedied those defects for some cars. Nor can we determine whether, for each state class, a common question of liability exists for all claims. The plaintiffs’ argument reduces to the bare assertion that common evidence establishes each cause of action. But without a common defect, that cannot be the case." — Sixth Circuit
The case has been sent back to the district court "for further proceedings consistent with this opinion."
The Nissan owners who filed the AEB class action lawsuit include:
Robert Garneau; Nancy Housell; Jeffrey Olkowski; Vaughn Kerkorian; David Turner; Courtney Johnson; Scott Reeves; Lisa Hendrickson; Rhonda Perry; Jane Reeves; Morela Jova; Kimberly Wright; Todd Burrows; Hosea Bartlett; Aurelia Fowler; John Hartwell; Keith Huddleston; Lakeita Kemp; Michelle Bereda; Angelene Hoeffken; and Scott Neri.
The Nissan AEB lawsuit is: In re: Nissan North America Inc Litigation filed in the the U.S. District Court for the Middle District of Tennessee (Nashville).
