Wiki Sudden Loss Of Range With 2019.16.x Software

[omarsultan]

Tesla is avoiding answering because every possible answer is harmful to them and helps us.

Perhaps I am naive and dumb, but I don't see it that way. I don't think it needs to be a zero sum game as I still believe in the company mission and in Elon. The last thing I want is for Tesla to no longer exist. First of all, I don't want to end up like a Fisker owner and I also don't want the industry as a whole to backslide on sustainable transportation because Elon no longer has his foot on their collections necks.

But, I want my house to burn down even less. When my son is home, he sleeps in a room directly above where I park my car.

If Tesla came back and said, hey we found an issue with the battery pack, and we made some temporary changes for your safety until we figure things out, I'd be perfectly content with that. The template for this is how they handled the car fires from road debris a few years ago--once they explained themselves, I think most owners were mollified.

With their current approach, I am not sure what to think.

 

[Droschke]

As an attorney I can tell you that is NOT an admission by Tesla. First of all, the section you refer to is not directed specifically to the BMS, rather it is directed to the battery. So the first barrier that would heed to be overcome is to convince a court that “battery” includes the BMS. Secondly, the key phrase in what you cite is “If something goes wrong ...”. Tesla has not (to this date) admitted that anything has gone wrong. That still needs to be proven in a court of law. So unfortunately, it is not as clear cut as you (and others) would infer it to be. I wish it were, but it’s not.

The battery pack and the BMS software go together. They are designed to be part of a single energy depository system. They both are designed to work as a single entity (power source + power management of that source), and what we purchased as a combined, but highly important, element of our cars. In other words, in Tesla's implementation, one (the battery) can not operate safely without the other (the BMS).

 

[Chaserr]

It's not a game of any kind. Tesla took illegal action and refuses to undo what they did. They also refuse to explain why they took action.

Nothing that is happening right now was necessary. If this was a safety issue Tesla had the option to follow NHTSA legal procedures, but they did not. if this is a warranty issue Tesla had the option to fix the problem for the "small number" of cars that need warranty repair. They did not.

This blew up because Tesla refuses to communicate, refuses to follow both federal law and their own established procedures, and instead has chosen to handle every decision with the absolute worst possible manor for maximum negative outcomes.

It's inexplicable, but this could go smoothly and quickly disappear. Literally the only thing Tesla needs to do is open a dialog with us. We are reasonable. Instead, Tesla has conscripted the "Big Guns" Morrison & Foerster to fight this. They typically don't go this far - and have been in hot water over class actions in the past so this sin't new - so Tesla is taking this seriously. Whether it's coincidence or not MoFo also happen to be a big time corporate Bankruptcy firm. If they're that afraid of not being able to afford to fix this, Tesla needs to open a dialog even sooner with us. I can "deal" with inconvenience if it's the difference between losing my warranty to bankruptcy and just needing to wait a long time to have it honored. But treating people with malicious contempt will only make us respond in kind. We want a dialog. They want a dirty battle.

 

[Droschke]

Perhaps I am naive and dumb, but I don't see it that way. I don't think it needs to be a zero sum game as I still believe in the company mission and in Elon. The last thing I want is for Tesla to no longer exist. First of all, I don't want to end up like a Fisker owner and I also don't want the industry as a whole to backslide on sustainable transportation because Elon no longer has his foot on their collections necks.

But, I want my house to burn down even less. When my son is home, he sleeps in a room directly above where I park my car.

If Tesla came back and said, hey we found an issue with the battery pack, and we made some temporary changes for your safety until we figure things out, I'd be perfectly content with that. The template for this is how they handled the car fires from road debris a few years ago--once they explained themselves, I think most owners were mollified.

With their current approach, I am not sure what to think.

I do not want them to go bankrupt either for the reasons you have stated. It appears from all angles they have a major issue at hand. The owners are willing to work with them to come up with some compromise that's fair to both parties. So far, Tesla hasn't shown any willingness whatsoever toward any compromise. They deny there is even a problem.

 

[swegman]

It makes no difference whatsoever. The BMS is inside the battery - it's like arguing your drive unit isn't covered by the drive unit warranty because it was damaged by a coolant pump inside the drive unit failing.

Tesla's battery warranty is clear cut - trying to blame their theft on an integral part of the battery just underscores the battery warranty applies to this mode of failure and neither their words nor their warranty can be ignored by the reasonable person test.

If it's a failure it's warranty covered, no question. If it's not a failure reverse the malware today.

Based upon the last few posts of yours, you seem to be operating under the premise that Tesla has admitted there is a problem with the battery (or the BMS) and that replacement is a forgone conclusion. I respectfully disagree with you. Tesla has taken the position that everything is fine, and that the update was made to improve longevity of the battery (a future event of making the battery last longer).

While I personally believe there is an issue with the battery and that is why Tesla has capped some batteries so they extend beyond the warranty period (yes, I have a car with a capped battery), there is a huge difference between believing something is defective and proving it. Tesla has not admitted that anything is wrong with the batteries. In fact, if you complain to Tesla, they tell you that the battery is fine. In my particular case, I’ve had my battery tested (CAC test) three times, and Tesla has taken the position that my battery is 30% BETTER than other 85 kWh batteries of the same age and mileage. When I ask them why the battery cells then now only charge to about 4.1 volts instead of the 4.2 volts that they charged to before the update was forced onto my car (I use ScanMyTesla) they do not say it was done because there is an issue with my battery. Instead, they say the software update was implemented to improve the longevity of the battery. I’ve gotten the same response from service centers in MA, MD and FL.

I know associates that work(ed) at the Washington, DC office of the firm that Tesla has retained. If the CA office is anything like the DC office, they will not stipulate to anything. You could walk into their office with your mother and they will insist on seeing a birth certificate before acknowledging that the two of you are related. They will well-known for the way they represent their clients and will make us work and work to prove every little element.

 

[swegman]

The battery pack and the BMS software go together. They are designed to be part of a single energy depository system. They both are designed to work as a single entity (power source + power management of that source), and what we purchased as a combined, but highly important, element of our cars. In other words, in Tesla's implementation, one (the battery) can not operate safely without the other (the BMS).

The issue the court will have to decide is whether the term “battery” in the sections that were referred to above is strictly interpreted to mean the battery itself or whether the term is expanded to also includes the BMS (which the battery requires to safely operate). It’s fine points like this that makes litigation interesting, and very expensive. And why U.S. Supreme Court cases are often decided 5 to 4. Reasonable people can (and do) disagree.

 

[swegman]

It's not a game of any kind. Tesla took illegal action and refuses to undo what they did. They also refuse to explain why they took action.

Nothing that is happening right now was necessary. If this was a safety issue Tesla had the option to follow NHTSA legal procedures, but they did not. if this is a warranty issue Tesla had the option to fix the problem for the "small number" of cars that need warranty repair. They did not.

This blew up because Tesla refuses to communicate, refuses to follow both federal law and their own established procedures, and instead has chosen to handle every decision with the absolute worst possible manor for maximum negative outcomes.

It's inexplicable, but this could go smoothly and quickly disappear. Literally the only thing Tesla needs to do is open a dialog with us. We are reasonable. Instead, Tesla has conscripted the "Big Guns" Morrison & Foerster to fight this. They typically don't go this far - and have been in hot water over class actions in the past so this sin't new - so Tesla is taking this seriously. Whether it's coincidence or not MoFo also happen to be a big time corporate Bankruptcy firm. If they're that afraid of not being able to afford to fix this, Tesla needs to open a dialog even sooner with us. I can "deal" with inconvenience if it's the difference between losing my warranty to bankruptcy and just needing to wait a long time to have it honored. But treating people with malicious contempt will only make us respond in kind. We want a dialog. They want a dirty battle.

MoFo is much more than a bankruptcy law firm. They are into all areas of the law. My experience with them has been in the field of intellectual property (patents). So I wouldn’t put much weight on the fact that they also do bankruptcies.

 

[qwk]

The issue the court will have to decide is whether the term “battery” in the sections that were referred to above is strictly interpreted to mean the battery itself or whether the term is expanded to also includes the BMS (which the battery requires to safely operate). It’s fine points like this that makes litigation interesting, and very expensive. And why U.S. Supreme Court cases are often decided 5 to 4. Reasonable people can (and do) disagree.

I know you are attorney, but in this case there is really no way for Tesla's law firm to fight what happened. They will literally bury themselves once they start with the first lie.

 

[qwk]

The issue the court will have to decide is whether the term “battery” in the sections that were referred to above is strictly interpreted to mean the battery itself or whether the term is expanded to also includes the BMS (which the battery requires to safely operate). It’s fine points like this that makes litigation interesting, and very expensive. And why U.S. Supreme Court cases are often decided 5 to 4. Reasonable people can (and do) disagree.

I'll repeat it again, Tesla's battery cannot operate without a BMS, period. That isn't even an argument. They really don't have a defense here.

 

[swegman]

I'll repeat it again, Tesla's battery cannot operate without a BMS, period. That isn't even an argument. They really don't have a defense here.

Everyone is entitled to their opinions, abd I’m nit looking to start a disagreement with anyone. Most of us are here because of an issue (whatever that may be) with our cars. I’m just pointing out that (at least in patent litigation) an inordinate amount of time and money is spent in court cases determining the meaning of each and every word in a patent claim. Does “x” mean just one, or one or more; does “y” mean just what is disclosed in the patent or does it include non-disclosed equivalents; does “battery” include only the physical structural elements that form the battery or does it also include the software (BMS) that is associated with the structural elements.

 

[swegman]

I think most everyone here knows that the 18650 cells used by Tesla were supplied by Panasonic. While I did the patent prosecution for Panasonic, I will not discuss that which is (or may be) confidential.

 

[qwk]

Everyone is entitled to their opinions, abd I’m nit looking to start a disagreement with anyone. Most of us are here because of an issue (whatever that may be) with our cars. I’m just pointing out that (at least in patent litigation) an inordinate amount of time and money is spent in court cases determining the meaning of each and every word in a patent claim. Does “x” mean just one, or one or more; does “y” mean just what is disclosed in the patent or does it include non-disclosed equivalents; does “battery” include only the physical structural elements that form the battery or does it also include the software (BMS) that is associated with the structural elements.

I wasn't trying to start an argument, as both of our cars are capped. I'm merely pointing out that while Tesla's law firm could argue about details you mentioned, it's a longshot.

They have been backed into a corner, and I suspect they hope, and pray that this is settled as inexpensive as possible(just like the other times they lost in court, over theft, using over the air updates).

 

[meomyo]

Everyone is entitled to their opinions, abd I’m nit looking to start a disagreement with anyone. Most of us are here because of an issue (whatever that may be) with our cars. I’m just pointing out that (at least in patent litigation) an inordinate amount of time and money is spent in court cases determining the meaning of each and every word in a patent claim. Does “x” mean just one, or one or more; does “y” mean just what is disclosed in the patent or does it include non-disclosed equivalents; does “battery” include only the physical structural elements that form the battery or does it also include the software (BMS) that is associated with the structural elements.

depends what you mean by the word "is"..

 

[swegman]

I wasn't trying to start an argument ...

Nor was I, and I don’t think you were. I do miss the days when two people could disagree about things and at the end of the day go out and socialize together.

I don’t expect this case to be resolved quickly in view of the firm they retained.

 

[omarsultan]

Instead, they say the software update was implemented to improve the longevity of the battery.

Not looking to argue, just curious...how could they defend/justify that? Its one thing if they did this in a way that was transparent to me as an owner, but they did something that will apparently benefit them (lower warranty costs) and negatively impacted me (capped battery).

 

[Ferrycraigs]

Sooooo.. Having a few spare minutes this afternoon and reading this:

Oh that’s good. That’s very good. I have been contemplating writing just such a letter to all the main UK car magazines and newspapers that have regular Motoring Sections. My enthusiasm was waning. It’s now refreshed. Excellent stuff.

 

[Ferrycraigs]

Nor was I, and I don’t think you were. I do miss the days when two people could disagree about things and at the end of the day go out and socialize together.

I don’t expect this case to be resolved quickly in view of the firm they retained.

I am a firm believer in:

Everybody is entitled to an opinion
Everybody is entitled to air that opinion.
There is no obligation on others to agree with that opinion
Just because people don’t agree, it doesn’t mean one is right and the other is wrong. It just means they don’t agree. (Example: is it better to show % or miles against the battery icon).

 

[Droschke]

The issue the court will have to decide is whether the term “battery” in the sections that were referred to above is strictly interpreted to mean the battery itself or whether the term is expanded to also includes the BMS (which the battery requires to safely operate). It’s fine points like this that makes litigation interesting, and very expensive. And why U.S. Supreme Court cases are often decided 5 to 4. Reasonable people can (and do) disagree.

Agree. There are lots of unknowns and undefined areas in the new realm of EV's. Hopefully this suit would help to define some.

I would also like to say, even though you are an impacted owner like me, and there is nothing great about it, it's great to have you here to explain the complexity from the legal point of view

 

[Ferrycraigs]

As an attorney I can tell you that is NOT an admission by Tesla. First of all, the section you refer to is not directed specifically to the BMS, rather it is directed to the battery. So the first barrier that would heed to be overcome is to convince a court that “battery” includes the BMS. Secondly, the key phrase in what you cite is “If something goes wrong ...”. Tesla has not (to this date) admitted that anything has gone wrong. That still needs to be proven in a court of law. So unfortunately, it is not as clear cut as you (and others) would infer it to be. I wish it were, but it’s not.

It’s always good to get expert analysis. Very interesting post, thanks. Developing it a bit further, it has been posted that a couple of people have submitted complaints to NHTSA. As a foreigner I am unfamiliar with how they work. I understand (assume) they can ask whatever question they want and (assume) Tesla are obligated to answer, truthfully., But are the results of their investigations made fully public? eg a very contracted example, but in essence:
N. Is this a safety issue?
T. No
N. OK. Case closed
or is the final bit an in detail explanation why the case is closed, or why they didn’t deem it necessary to conduct a formal investigation.

Basically, do we get to see the answers we are seeking?

 

[Droschke]

I am a firm believer in:

Everybody is entitled to an opinion
Everybody is entitled to air that opinion.
There is no obligation on others to agree with that opinion
Just because people don’t agree, it doesn’t mean one is right and the other is wrong. It just means they don’t agree. (Example: is it better to show % or miles against the battery icon).

Absolutely. People are entitled to have their own opinion, but they are not entitled to have their own facts.

BTW, the "miles" is better for the battery icon