Well, that's the fundamental problem and one that will need challenging in court I suspect.
After 400+ posts, I think this is what it boils down to. Issues:
1) Was battery defective on delivery?
2) Was repair in 2011 defective/made the situation worse to a level where a remedy is required?
3) What is the degradation linked to, and does it rise to a level (read: meet the burden of proof) for some sort of product liability suit/manufacturer's defect/etc where a remedy would be available?
I think we can all agree that if an expert witness can show #1 or #2 are absolutely true with objective evidence, there should be some type of remedy (replacement, fix, etc). It's #3 we keep running in circles about, and it ties in with the questions #1 and #2.
In #3 Mr. Sharpe is going to have some significant legal hurdles to jump if he can't prove #1/#2, as there are *possible* multiple factors that could be effecting the range drop. Mr. Sharpe would need to show that Tesla's product/actions were a substantial factor in causing the problem. I'm assuming here he is not going after strict liability case, although I don't know all the facts. Likewise for an implied warranty claim (as I don't see an argument for an express warranty) - he'd have to prove certain standards which may be difficult considering Tesla's released data on degradation. Once you get through all that, Mr. Sharpe needs to argue the damages are foreseeable for recovery.
There are a LOT of facts here, but also some missing. Unfortunately without a lawsuit and a subpoena of more data (or full release of all data from Tesla/Mr. Sharpe), I doubt we are ever going to get the whole picture. Many of you are very smart and know a lot about these batteries, but I highly doubt your credentials would stand up in court as an expert. It's pointless to keep arguing about things where we don't have all the info, nor all the knowledge. Hell, Mr. Sharpe doesn't even have all the info yet - I'm not sure why he keeps asking people for their opinion on whether the battery was defective other than to just keep stirring the pot.
Please, just stop everyone. Mr. Sharpe is making this worse by starting a PR campaign without all the data/experts, and we are all making it worse by arguing with him and giving all the blogs/news sites potential inaccurate and non-expert opinions on the issues as they call us heated fanboys. No one looks good here arguing back and forth. If we want to move on with this, we just need to accept it is going to take some time.
Mr. Sharpe, I'm sure you are spending quite a chunk of money on your lawyer(s) and expert(s) to get this figured out. I ask that you wait until you have all the data and an opinion from an actual expert before continuing to argue with everyone. To be honest I'm not quite sure why you started a PR campaign without all that info and at least 1 expert opinion (ie written report on how/why this is related to #1/#2, or #3 under some warranty). I understand you are having some issues getting additional data, which you may or may not have a right to obtain without a subpoena. Either way, I think that data should have been obtained (by subpoena, if needed) prior to running to the press shouting foul play.
If you are all the Tesla supporters you claim to be, I think you will agree this needs to stop.
As a final note, if Mr. Sharpe or anyone here actually has a written, credential-supported expert opinion on #1/#2/#3 - please post it immediately. Thanks
/endrant