Talked to my BIL last night.
He confirmed the issue as being that he doesn't get the temperature up with his short commute to his shop.
They have replaced the cat. converter, particulate filter, and all the exhaust sensors twice under warranty. The second time they didn't do something right and he ended up with the diesel smell in the vehicle. but that was corrected too. I have read about that on some of the forums.
He told me he loves the vehicle and the motor itself is great. When he used to tow his boat down to MD, or took longer trips, no issues.
He filed the lemon law claim against it, but does not want a buy back.
He is negotiating with them to just extend his warranty to 150,000 miles and he will be happy.
So, we shall see what the end result is.