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17-P-1204 Appeals Court

THOMAS R. GLIOTTONE, JR. vs. FORD MOTOR COMPANY & others.1

No. 17-P-1204.

Norfolk. September 13, 2018. - July 31, 2019.

Present: Rubin, Sacks, & Shin, JJ.

Motor Vehicle, Defect, Warranty. Evidence, Expert opinion. 

Practice, Civil, Summary judgment. Words, "Lemon law."

Civil action commenced in the Superior Court Department on 

July 25, 2014. 

A motion for summary judgment was heard by Angel Kelley 

Brown, J.; a motion for summary judgment was heard by Rosalind 

H. Miller, J., and the entry of judgment was ordered by her.

Christopher M. Lefebvre (Clovis C. Gregor, of Rhode Island, 

also present) for the plaintiff.

Michelle I. Schaffer for Ford Motor Company & another.

Ronald P. Langlois for Tasca Automotive Group, Inc.

RUBIN, J. This case requires us to decide whether a 

plaintiff suing under the Massachusetts Lemon Law, G. L. c. 90, 

§ 7N 1/2, must introduce expert testimony to prove that the 

 

1 Tasca Automotive Group, Inc., and Rodman Ford Sales, Inc.
2

subject vehicle did not comply with the applicable express or

implied warranties. A judge of the Superior Court answered this 

question in the affirmative and on this basis granted summary 

judgment in favor of defendant Ford Motor Company (Ford).2 We 

disagree and therefore, for the reasons set out infra, vacate 

the judgment entered in favor of all the defendants.

Background. We summarize the facts, many of which are 

disputed, in the light most favorable to the nonmoving party, 

here the plaintiff, Thomas R. Gliottone, Jr., in accordance with

the traditional standard for summary judgment. See Augat, Inc. 

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Under that 

standard, summary judgment is appropriate only when "viewing the 

evidence in the light most favorable to the nonmoving party, all 

material facts have been established and the moving party is 

entitled to a judgment as a matter of law." Id. Our review of 

the summary judgment is de novo. See Miller v. Cotter, 448 

Mass. 671, 676 (2007).

On July 23, 2010, Gliottone bought a 2010 Ford F-150 pickup 

truck from defendant Rodman Ford Sales, Inc. (Rodman), an 

authorized dealer of Ford vehicles located in Foxborough, 

Massachusetts. The vehicle, manufactured by Ford, came with a 

 

2 The claims against the other defendants also were 

dismissed as a result of the failure to introduce expert 

testimony.
3

limited warranty that covered manufacturing defects. Shortly 

after the purchase, the truck began exhibiting mechanical 

problems: the truck would not start, it would stall, it 

experienced loss of power, and the on-board diagnostic panel 

would show that it was in "wrench" mode. Gliottone contacted 

Ford's roadside assistance, which instructed him to bring the 

vehicle to defendant Tasca Automotive Group, Inc. (Tasca), a 

different authorized Ford dealer located in Cranston, Rhode 

Island. He did so on or about August 14, 2010, and Tasca

representatives told him that installing a supercharger would 

solve the mechanical problems and would not adversely affect his 

warranty. Gliottone agreed to pay for the supercharger, which 

cost $8,038.68 for parts and labor. The invoice for this 

service shows that the truck had been driven 1,461 miles and was 

ready for pickup on September 24, 2010. Ford disputes that the 

supercharger was an authorized repair, but we are reviewing a 

motion for summary judgment and there is sufficient evidence to 

support a finding that it was: the invoice states that the 

supercharger was installed for "engine repair." Ford also 

continued to pay for warranty services for problems it blames on 

the supercharger even though it would have had no obligation to 

do so under the warranty if the malfunctions were caused by a 

"modification[]." 
4

According to Gliottone, the vehicle's wrench mode 

reactivated and the same mechanical problems with failing to 

start, power loss, and stalling resurfaced in October of 2010. 

These issues would also occur when the vehicle's "hill descent" 

and "tow haul" modes were activated. He took the vehicle back 

to Tasca on October 20, 2010, and the vehicle remained out of 

service for ten days.3

The truck's problems did not end here. It was towed to 

Tasca on May 16, 2011, apparently through Ford's roadside 

assistance hotline, because it would crank but not start.4 By 

May 19, Tasca had replaced the truck's throttle position sensor 

and the truck was ready to be picked up. 

Gliottone then returned to Tasca on June 1, 2011, because, 

again, the truck would crank but not start. Tasca kept the 

truck until June 24 and replaced the fuel pump. 

Gliottone again returned to Tasca on August 3, 2011, this 

time because, when he drove the truck, the hill descent light 

would illuminate and the truck would lose power. It would also 

 

3 The invoice for this servicing only shows an oil change. 

The invoice also shows that the truck had a mileage of 1,212, 

fewer than its mileage more than two months earlier.

4 The relevant invoice indicates that the vehicle was towed 

to Tasca, and Gliottone averred that, between September of 2010 

and December of 2011, the truck was towed through Ford's 

roadside assistance "at least three or four times." No other 

invoice indicates that the truck was towed to that location.
5

idle "rough." After also discovering problems with the 

accelerator pedal, Tasca eventually replaced a power control 

module. The truck was out of service until September 30, 2011. 

Another invoice shows that the truck was serviced between 

November 21, 2011, and December 12, 2011, because the wrench 

light illuminated and there would be a power loss, precisely the 

issue that first had plagued the truck. A Tasca mechanic 

contacted Ford's technical assistance hotline, and was 

instructed to replace the throttle body, which he did. 

Tasca filed claims against Gliottone's warranty with Ford 

with respect to the throttle position sensor, the fuel pump, the 

power control module, and the throttle body, but not the 

supercharger, for which Gliottone paid out-of-pocket.

Tasca removed the supercharger in October of 2011.5 

Although a Tasca invoice shows that one of its mechanics then

drove it for 465 miles without issue, Gliottone avers that the 

initial problems with the vehicle persisted beyond December of 

2011, a proposition we must accept on summary judgment review. 

 

5 It is unclear from the record when Gliottone took his 

vehicle in for this final repair and when it was released. One 

invoice shows that the relevant repair order was opened on 

September 29, 2011, after the vehicle had been towed to Tasca, 

and the truck was ready on January 31, 2012. This is hard to 

reconcile with an invoice showing that the truck was out of 

service between August 3, 2011, and September 30, 2011, as well 

as an invoice showing a different repair order being open 

between November 21, 2011, and December 12, 2011. 
6

Gliottone then demanded that Ford accept return of the vehicle 

and give him a refund; Ford declined, and this suit followed. 

Analysis. The Lemon Law provides: "If a motor vehicle 

does not conform to any applicable express or implied warranty, 

and the consumer reports the nonconformity to the manufacturer 

of the vehicle, its agent or its authorized dealer during the 

term of protection, the manufacturer, its agent or its 

authorized dealer shall effect such repairs as are necessary to 

conform the vehicle to such warranty." G. L. c. 90, 

§ 7N 1/2 (2). The statute defines "[n]onconformity" to include 

"any specific or generic defect or malfunction, or any 

concurrent combination of such defects or malfunctions that 

substantially impairs the use, market value or safety of a motor 

vehicle." G. L. c. 90, § 7N 1/2 (1). The "[t]erm of 

protection" is defined, as relevant here, as "one year or 

fifteen thousand miles of use from the date of original delivery 

of a new motor vehicle, whichever comes first." G. L. c. 90, 

§ 7N 1/2 (1). 

Under the statute, "If the manufacturer, its agent or 

authorized dealer does not conform the motor vehicle to any such 

applicable express or implied warranty by curing any 

nonconformity after a reasonable number of attempts, the 

manufacturer shall accept return of the vehicle from the 
7

consumer." G. L. c. 90, § 7N 1/2 (3). A reasonable number of 

attempts occurs either when:

"(a) the same nonconformity has been subject to repair 

three or more times by the manufacturer or its agents or 

authorized dealers within the term of protection, but such 

nonconformity continues to exist or such nonconformity has 

recurred within the term of protection, or (b) the vehicle 

is out of service by reason of repair of any nonconformity 

for a cumulative total of fifteen or more business days 

during the term of protection." 

G. L. c. 90, § 7N 1/2 (4). In addition, even after a 

"reasonable number of attempts," the manufacturer gets one 

additional "opportunity to cure," lasting no longer than seven 

business days, and beginning when "the manufacturer first knows 

or should have known that the limits specified in clause (a) or 

(b) have been met or exceeded." G. L. c. 90, § 7N 1/2 (4).

A. Expert testimony. The facts alleged describe several 

covered nonconformities reported within the term of protection,

specifically, not starting, stalling, and losing power.6 The 

defendants do not argue that the reasonable number of attempts 

requirement or the opportunity to cure requirement was not met.7 

 

6 The term of protection ended on or about July 23, 2011, as 

invoices from Tasca show that the vehicle had not reached 15,000 

miles one year after purchase. 

7 In an argument directed toward one of the other counts of 

the complaint, Ford asserts that Tasca is not "simply by virtue 

of its dealership status" the "manufacturer's agent for the 

purpose of receiving the notice contemplated by" the statute,

General Motors Corp. v. Blackburn, 403 Mass. 320, 324 (1988). 

Blackburn held only that a dealer is "not necessarily" the 
8

Their arguments with respect to the Lemon Law claim all turn on 

the need for expert testimony.

The defendants argue first, as the judge concluded, that 

expert testimony was required to demonstrate these 

nonconformities. "The purpose of expert testimony is to assist 

the trier of fact in understanding evidence or determining facts 

in areas where scientific, technical, or other specialized 

knowledge would be helpful." Commonwealth v. Pytou Heang, 458 

Mass. 827, 844 (2011). Thus, expert testimony is necessary only 

on subjects that the trier of fact would not "be expected to 

understand in many circumstances without guidance from an 

expert." Providence & Worcester R.R. v. Chevron U.S.A. Inc., 

416 Mass. 319, 323 (1993). It is not necessary in cases in 

which lay knowledge enables the jury to find the relevant facts. 

See Smith v. Ariens Co., 375 Mass. 620, 625 (1978).

Whether a cause of action can be proven without expert 

testimony depends on the elements of the cause of action. As 

relevant here, in order to show the Lemon Law applicable, 

Gliottone was required to show a nonconformity, i.e., a 

 

manufacturer's agent for the purpose of receiving that notice. 

Id. Here, to the extent it is relevant, there was sufficient 

evidence of such an agency relationship created by either actual 

or apparent authority to survive summary judgment. This 

evidence includes the description of dealerships, as well as 

Ford's relationship to them, contained in the warranty document 

as well as Ford's roadside assistance directing Gliottone to 

take his vehicle to Tasca.
9

"specific or generic defect or malfunction, or any concurrent 

combination of such defects or malfunctions that substantially 

impairs the use, market value or safety of a motor vehicle." 

G. L. c. 90, § 7N 1/2 (1).

Contrary to Ford's argument, because it does not matter 

what is causing the vehicle to malfunction, or even if it can be 

determined what is causing it, expert testimony is not always 

required to demonstrate that a vehicle has a nonconformity. In 

many circumstances, including these, a rational juror, without 

an expert, can understand the facts necessary to decide whether 

a plaintiff has demonstrated an actionable defect or 

malfunction. On this issue we agree with the Supreme Court of 

Indiana, which said in construing that State's Lemon Law:

"[I]t hardly takes an expert to observe that the brakes 

will not adequately stop the automobile he is driving. It 

was not for the [plaintiffs] to prove why the brakes were 

not working. It was sufficient for them to establish to 

the satisfaction of the trier of fact that they in fact did 

not function properly. . . . There is nothing in the 

'Lemon Law' statute which requires the purchaser of the 

automobile to present expert testimony as to the failure of 

the automobile to perform properly." 

General Motors Corp. v. Zirkel, 613 N.E.2d 30, 31 (Ind. 1993).

This is a paradigm case. At most, three weeks after 

Gliottone purchased the vehicle, which had at most 1,461 miles 

on it when first repaired, the vehicle was unable to start, 

stalled, and lost power. The relevant invoice showed that the 

supercharger was installed for "engine repair." A rational 
10

juror, given this information, clearly could conclude that the 

vehicle was defective or had a malfunction when sold. See id. 

at 30-31 (plaintiff did not need expert to prove manufacturing 

defect in brakes first repaired thirty-two days after purchase

and repaired another nineteen times in next five months). 

Contrast Kourouvacilis v. General Motors Corp., 410 Mass. 706, 

717 (1991) (plaintiff needed expert to prove that six year old 

vehicle had defect when purchased, and that this defect caused 

fire); Walsh v. Atamian Motors, Inc., 10 Mass. App. Ct. 828, 

828-829 (1980) (simply pointing to automotive problems 

insufficient to prove manufacturing defect because vehicle was 

four years old and had been driven for 63,000 miles).

Nor are the defendants correct that Gliottone needed an 

expert to negate the statutory affirmative defenses that the 

nonconformity was the result of an "attempt to repair the 

vehicle by a person other than the manufacturer, its agent or 

authorized dealer," or of "any attempt substantially to modify 

the vehicle which was not authorized by the manufacturer." 

G. L. c. 90, § 7N 1/2 (3). While Ford does claim that the 

supercharger caused many of the issues that induced Gliottone to 

return to Tasca and that it was an unauthorized repair, these 

are disputed facts. A reasonable juror could conclude, without 

expert testimony, that problems that persisted unabated before 

the supercharger was installed, while it was in the truck, and 
11

after it was removed were not caused by the supercharger. A 

reasonable juror could also infer from the relevant Tasca 

invoice, Tasca's representations to Gliottone, Ford's actions in 

sending Gliottone to Tasca to repair the vehicle before and 

after the supercharger was installed, and Ford's continued 

payment for warranty services after the installation of the 

supercharger despite having no obligation to do so under the 

warranty if the malfunctions were caused by a "modification,"

that the installation of the supercharger was an authorized 

repair rather than an unauthorized one or a modification. Tasca 

appears to argue that Gliottone required expert testimony to 

demonstrate that the alleged nonconformity "substantially 

impaire[d] the use, market value or safety" of the truck. G. L. 

c. 90, § 7N 1/2 (1). A jury does not need an expert, however,

to explain that not starting, stalling, and losing power 

substantially impair the use, market value, or safety of a

vehicle. 

The other reported case cited by the judge and Ford,

Goffredo v. Mercedez-Benz Truck Co., 402 Mass. 97 (1988), to the 

extent it is relevant at all, supports our conclusions. That 

case held only that the plaintiff could not prove that a door 

latch that blew open during an accident in which the truck 

hydroplaned, veered to the right, jumped the curb, hit a parked 

car, went perpendicular to the direction of traffic, crossed the
12

street, hit the opposite curb, and came to a stop was 

defectively designed without expert testimony "as to the amount 

of force necessary to cause the door to open." Id. at 104. The 

court made clear that "this was not a case in which the jury 

could have found, of [their] own knowledge, that the defendant 

had improperly designed the latch mechanism." Id. The court

did not hold that expert testimony is required to prove the 

existence of a malfunction or a defect that is obvious to a lay 

juror, like the ones alleged here.8 

Ford's other reported cases are irrelevant. Providence &

Worcester R.R., 416 Mass. at 323, held that expert testimony was 

required to show a causal relation between an oil spill in 1972 

and soil contamination found sixteen years later. And Esturban

v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912 

(2007), involved a design defect that required an expert to 

"detail[] not only what standards and codes apply, but also how 

the . . . design did not meet those standards or codes." This 

case is not about whether Ford's design of the truck was 

 

8 The same is true of the unreported cases cited by the 

defendants. See Morse vs. Ford Motor Co., U.S. Dist. Ct., No. 

08-11930, slip op. at 1 (D. Mass. Jul. 13, 2010) (plaintiff 

required expert testimony to prove tie rod assembly and airbag 

system in vehicle were defective, which were "highly technical 

and specialized questions"); Laspesa vs. Arrow Int'l, Inc., U.S. 

Dist. Ct., No. 07-CV-12370, slip op. at 4-5 (D. Mass. Dec. 23, 

2009) (expert testimony required in only "complex" breach of 

warranty and design defect cases, which that case was).
13

"unreasonably dangerous," id. at 911, but about whether it sold 

Gliottone a lemon.9

Ford also argues without citation to binding authority that 

Gliottone cannot prevail on summary judgment because the only 

support in the record for the truck's alleged stalling, 

inability to start, loss of power, and other problems are from 

his own affidavit. This is inconsistent with Mass. R. Civ. P. 

56 (e), 365 Mass. 824 (1974) ("When a motion for summary 

judgment is made and supported as provided in this rule, an 

adverse party may not rest upon the mere allegations or denials 

of his pleading, but his response, by affidavits or as otherwise 

provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial" [emphasis added]).

B. Other claims. Gliottone also brought claims of breach 

of contract and express warranty, breach of the implied 

warranties of marketability and fitness, breach of the covenant 

of good faith and fair dealing, unjust enrichment, revocation of 

acceptance, and violation of G. L. c. 93A against Ford, Tasca, 

and Rodman, on all of which the judge also granted summary 

 

9 And regardless, our courts have regularly held that expert 

testimony in design defect cases is not necessary when a lay 

juror is capable of understanding, without expert testimony, 

whether or not the design deviated from the applicable standard 

of care. See, e.g., Smith, 375 Mass. at 625; doCanto v. Ametek, 

Inc., 367 Mass. 776, 782 (1975).
14

judgment on the basis that because Gliottone presented no expert 

evidence, he could not, as a matter of law, prove that the truck 

did not conform to the applicable warranties.10 In light of our 

holding that expert testimony is not essential to prove that, we 

must vacate the judgment on those counts as well in order to 

allow the judge in the first instance to address any of the 

other arguments made before us that were made below in support 

of the motion for summary judgment. 

Conclusion. The judgment is vacated. Because there are 

disputed facts on the Lemon Law claim against Ford, summary 

judgment was inappropriate; that claim must be determined at a 

trial on the merits. As to the remaining counts, the judge 

should address them in the first instance under the summary 

judgment standard, reconsidering any preserved arguments that 

she did not reach in her initial summary judgment order.

So ordered.

 

10 The fraud and the c. 93A claims were not asserted against 

Rodman. Gliottone's breach of warranty claims, as well as the 

revocation of acceptance claim, were brought under the 

applicable provisions of both the Massachusetts Uniform 

Commercial Code and the Federal Magnuson-Moss Warranty Act, 15 

U.S.C. §§ 2301-2312.