GLASSER, Senior United States District Judge:
On November 13, 2015, Plaintiff Zsa Zsa Jewels, Inc. ("
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is material if it might affect the out-come of the case under governing law." Fireman's Fund Ins. Co. v. Great American Ins. Co. of New York, 822 F.3d 620, 631 n. 12 (2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A dispute is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). "In making this determination, the Court `must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Id. (quoting Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "`The evidence of the non-movant is to be believed' to the extent that a jury could reasonably believe it." Grant v. City of New York, 15-CV-3635 (ILG) (ST), 2019 WL 1099945, at *4 (E.D.N.Y. Mar. 8, 2019) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). "Conversely, `the court ... must disregard all evidence favorable to the moving party that the jury is not required to believe.'" Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
Plaintiff is a New York corporation that "design[s], produc[es], and sell[s] hand-crafted jewelry." (Am. Compl. ¶¶ 3, 8). In 2011, Plaintiff's sole owner, Meena Catalano ("
Before turning to the facts of this case, it is necessary to review some background information concerning tire pressure monitoring systems.
A TPMS is a system required to be installed on most passenger cars pursuant to Federal Motor Vehicle Safety Standard 138 ("
Under FMVSS 138, a TPMS must activate a warning if the pressure in any tire descends to a level that is equal to or less than either of the following: (1) a fixed minimum which, for passenger vehicles, is either 20 or 23 psi (pounds per square inch), see FMVSS 138 S4.2(a) & Table 1 (the "
A manual "reset" feature is a feature installed on the 2012 BMW X3 that permits the driver to inform the computerized TPMS that the pressure level currently existing in the tires should be accepted as the new baseline. (See Yeldham Supp. Rep. at 2). If the TPMS is reset while the tires are at a certain pressure level, deviations from that pressure level that are greater than 25% will trigger a new warning, in accordance with the 75% Rule. (See Yeldham Supp. Rep. at 2). For example, if the TPMS is reset while the tires on the vehicle have a pressure level of 35 psi, then, in
In accordance with the Minimum Activation Rule, the TPMS will continue to display a low pressure warning if the pressure in any tire is less than 23 psi or below, even if the system is manually reset. (See Yeldham Supp. Rep. at 2). However, for pressure levels above 23 psi, it is possible for a driver to manually reset the TPMS before having re-inflated the tires to their proper pressure—even if the tire pressure is less than 75% of the recommended cold inflation pressure level. If one resets the system in this manner, it will inform the system that the underinflated pressure level should be accepted as the new baseline, allowing the operator to resume driving without seeing a warning light. (See Leiss Rep. at 6-11, 14; Yeldham Supp. Rep. at 2). What this means, in plain English, is that, for pressure levels above 23 psi, the reset function can theoretically be used as a kind of `off-switch,' allowing the driver to shut off the warning telltale even when the 75% Rule would require it to be displayed. For this reason, the 2012 BMW X3 Owner's Manual explicitly instructs operators to reset the system only after the tire pressure is restored to its correct level; "otherwise, reliable signaling of a flat tire is not ensured." (Owner's Manual at 88; see Yeldham Supp. Rep. at 2).
Leiss demonstrated how the 2012 BMW X3's reset feature can be used as a kind of TPMS `off-switch' by testing an exemplar 2012 BMW X3. First, Leiss deflated the test vehicle's left rear tire to 25 psi, which triggered a low tire pressure warning. (See Leiss Rep. at 8).
On November 6, 2013, Sobers was driving the Subject Vehicle from Plaintiff's office in New York City to a jewelry trade show in Marlborough, Massachusetts. (See Def. 56.1 SOF ¶ 3). The Vehicle was loaded with jewelry that Plaintiff intended to sell at the trade show. (See id. ¶ 4). While en route in the vicinity of Southbury, Connecticut, Sobers experienced difficulty steering the Vehicle and pulled over to the shoulder of the road. (See id. ¶¶ 12-13). While Sobers was attempting to dial for help, a passing truck driver pulled over and told her to get out of the car, as it was on fire. (See id. ¶¶ 15-16). Sobers looked in the right mirror and saw smoke and flames. (See Sobers Dep. at 177:8-10). Fortunately, she was able to exit the Vehicle safely. (See Def. 56.1 SOF ¶ 17). However, by the time Connecticut State Troopers arrived at the scene, the Vehicle was "fully engulfed in flames," and the jewelry inside the Vehicle had been damaged. (Investigation Report at 1-3, Def. Ex. G, ECF No. 86-10 at 2-3; see Yeldham Rep. at 2-6, Def. Ex. O, ECF N. 86-18 at 5-9 (photographs showing significant damage to the Vehicle and jewelry)).
After the fire, the Vehicle was inspected at the facilities of S. Dennis Lyons, a fire origin and causation expert whose qualifications are not disputed. (See Def. 56.1 SOF ¶ 19). Lyons found that the cause of the fire was a loss of pressure in the Vehicle's right rear tire, which caused the tire to "shred apart and [catch] fire due to the high degree of friction." (Lyons Rep. at 4, Def. Ex. M, ECF No. 86-16 at 7; see Def. 56.1 SOF ¶¶ 26, 34; Yeldham Rep. at 12, Def. Ex. O, ECF No. 86-18 at 15). Sobers testified that, prior to the accident, she did not observe a low tire pressure warning on the dashboard. (See Sobers Dep. at 226:3-15). It is not known why the tire became deflated or what the actual air pressure was in the tire at the time of the accident. However, Defendant's expert concluded that "the tire must have been deflated for an extended period of time." (Yeldham Rep. at 12). In February 2014, after Plaintiff's counsel failed to pay for storage fees, the Vehicle was sold and crushed, making it impossible to conduct any more inspections. (See Def. 56.1 SOF ¶ 24).
As previously noted, the parties agree that it is possible for a driver to reset the TPMS at a low tire pressure, thereby permitting a driver to operate the vehicle with low pressure tires without seeing a warning. (See Leiss Rep. at 14; Yeldham Supp. Rep. at 2). They disagree, however, about whether this feature was the actual cause of the fire and whether it constitutes a design defect in the first place. This disagreement largely plays out through the differing opinions of Plaintiff's expert, Leiss, and Defendant's expert, Mark Yeldham (
Leiss' theory of the accident is evidently that, at some point before the fire, the Subject Vehicle's TPMS was reset at a low tire pressure, making it possible for Sobers to drive the Vehicle with a deflated tire without seeing a warning. Specifically, Leiss testified that the TPMS "may have" been improperly reset when the Vehicle was serviced at an Open Road BMW on October 1, 2012, approximately 13 months before the fire. (Leiss Dep. at 173:25-4). The record shows that the Vehicle was taken in to the Open Road on that date after the dashboard emitted a low tire pressure warning. (See Catalano Dep. at 111:10-113:5). The tire was re-inflated at
Defendant proposes only a single, alternative explanation for the cause of the fire: that the low tire pressure warning did go on, as it was supposed to, but that Sobers simply ignored it. (See Def. Mem. at 15-17, ECF No. 86-2, at 20-22; Def. Reply at 6-7, ECF No. 93, at 9-10). In his report, Yeldham states that:
(Yeldham Rep. at 11). Yeldham notes further that "we have no reason to believe that the Tire Pressure Monitoring system was not functioning properly" at the time of the incident. (Id.). In essence, Defendant seeks to sow doubt as to the credibility and veracity of Sobers' testimony. Defendant refers to various pieces of circumstantial evidence which, it contends, is indicative that Sobers disregarded the warning: (i) "Sobers was operating the Vehicle at a speed of 66-99 mph in the 30-45 minutes prior to the fire" (Def. Reply at 6 (citing Def. 56.1 ¶ 14)); (ii) "Sobers was on the phone for 29 minutes with [Catalano] while driving, right up to the time of the incident" (id. (citing Def. 56.1 ¶¶ 10, 11, 17)); and (iii) Sobers' statements to Lyons and Connecticut State Trooper Joshua A. Sawyer were purportedly "inconsisten[t]" as to whether she saw a low coolant light (id. (citing Lyons Dep. at 90:15-93:20, 184:13-185:6; Victim/Witness Statement, Def. Ex. G, at 6)). Critically, Defendant does not explain how the warning light could have failed to turn on even in the absence of a defect; it simply argues that the warning light did turn on and that Sobers' testimony to the contrary is incorrect.
Leiss opines that, because the TPMS can be reset without inflating a tire to its proper pressure, enabling the driver to operate the vehicle with deflated tires without seeing a low tire pressure warning, the TPMS Design is "defective." (Leiss Rep. at 14). He claims that this design contravenes FMVSS 138 (see id. at 12), but that, even if it were deemed to comply with FMVSS 138, it nevertheless falls short of the "industry standard" (Leiss Dep. at 220:3-20). According to Leiss, Defendant could have employed an alternative design, which would have "identifie[d] an inadequately inflated tire under all conditions." (Leiss Rep. at 12). Specifically, Leiss claims that Defendant could have designed a TPMS without a manual reset feature; he notes that "the vast majority of models that I know of and am familiar with ... do not have a manual reset feature" (Leiss Dep. at 241:13-16),
In response, Defendant argues that the ability to manually reset the 2012 BMW X3 TPMS is a feature, not a flaw. Yeldham states that the manual reset feature "is incorporated into the TPMS of the 2012 BMW X3, because this vehicle is offered in several wheel/tire combinations, which do not all have the same recommended cold inflation pressures." (See id.; see also Owner's Manual at 222, Pl. Ex. 4, ECF No. 90-4 (displaying different recommended cold inflation pressures for different wheel/tire combinations in the 2012 BMW X3)).
As an alternative ground for denial of summary judgment, Plaintiff contends that, under New York law, even if it cannot "prove a specific defect"—that is, even if Leiss' proffered opinions are excluded or otherwise insufficient to show that the fire was caused by a defect in the Vehicle's manual reset feature—it may nevertheless prevail by simply "prov[ing] that the product did not perform as intended and exclud[ing] all other causes for the product's failure that are not attributable to defendants." (Pl. Opp. at 24, ECF No. 90, at 24) (quoting Church Insurance Company v. Comstock-Castle Stove Company, No. 15-CV-49 (BKS) (DEP), 2017 WL 1408042, at *5 (N.D.N.Y. Feb. 14, 2017) and citing Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 760 N.Y.S.2d 79, 790 N.E.2d 252 (N.Y. 2003)). Plaintiff argues that the circumstantial evidence in this case—specifically, Sobers' testimony, which, if credited, would establish that the low tire pressure warning did not illuminate as it was supposed to (see Sobers Dep. at 226:3-15) —is sufficient to support an inference that the TPMS was defective and that the defect caused the injury in question. (See Pl. Opp. at 24-26).
Under New York law, "[o]ne engaged
With respect to the first element, three theories of product defect are recognized: defective design, defective manufacturing, and failure-to-warn. See In re New York City Asbestos Litigation, 27 N.Y.3d 765, 787, 37 N.Y.S.3d 723, 59 N.E.3d 458 (N.Y. 2016); Restatement § 2. Here, Plaintiff's claim, as narrowed by the prior proceedings and by Plaintiff's memorandum in opposition to summary judgment, is that the Vehicle's TPMS was defectively designed and/or defectively manufactured. (See Am. Compl. ¶¶ 59-77; Pl. Opp. at 7).
87 N.Y.2d 248, 257 n. 3, 639 N.Y.S.2d 250, 662 N.E.2d 730 (N.Y. 1995).
We examine the legal standards governing each mode of proof in greater detail below.
To prevail on a products liability claim based on a specific design defect, the plaintiff must demonstrate that "(1) the product, as designed, posed a substantial likelihood of harm; (2) that it was feasible for the manufacturer to design the product in a safer manner; and (3) that the defective design was a substantial factor in causing plaintiff's injury." Hilaire v. DeWalt Indus. Tool Co., 54 F.Supp.3d 223, 252 (E.D.N.Y. 2014) (adopting report and recommendation) (quoting Cuntan v. Hitachi KOKI USA, Ltd., No. 06-CV-3898 (RRM) (CLP), 2009 WL 3334364, at *5 (E.D.N.Y. Oct. 2009)); accord Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 83 (S.D.N.Y. 2001). The first two elements are usually analyzed together and merge into a single inquiry: whether the product, as designed, was "reasonably safe." Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 (N.Y. 1983). New York's approach to design defect cases is consistent with that of the Restatement, which provides that a product is defectively designed if:
Restatement § 2(b). The test, in other words, "is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risk of harm posed by the product and, if so, whether the omission of the alternative design by the seller or a predecessor in the distributive chain rendered the product not reasonably safe." Id. § 2 cmt d.
To determine whether a product is reasonably safe, the trier of fact is required to weigh the costs and benefits of the product design; a product is "not reasonably safe" if "a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner." Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d 398, 450 N.E.2d 204; see also Robinson v. Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.E.2d 440 (N.Y. 1980) ("[A] defectively designed product is one... whose utility does not outweigh the danger inherent in its introduction into the stream of commerce"). This analysis "is rooted in a recognition that there are risks and benefits associated with many products and that there are instances in which a product's inherent dangers cannot be
To prove that a product design creates a "substantial likelihood of harm," a plaintiff is often required to rely on expert testimony. See Guarascio v. Drake Associates, Inc., 582 F.Supp.2d 459, 463 (S.D.N.Y. 2008) ("New York courts uniformly rule that competent, non-conclusory expert testimony is needed in cases involving more complex design issues"). The expert may establish that a product was unreasonably dangerous by showing, for example, that it violated applicable industry standards or accepted practices, or by providing statistics showing the frequency of injuries arising out of the use of the product. See June v. Lift-A-Loft Equipment, No. 88-CV-1205 (NPM), 1992 WL 168181, at *5 (N.D.N.Y. July 13, 1992); Spiconardi v. Macy's East, Inc., 83 A.D.3d 472, 473, 923 N.Y.S.2d 28 (N.Y. App. Div. 1st Dept. 2011); D'Auguste v. Shanty Hollow Corp., 26 A.D.3d 403, 404, 809 N.Y.S.2d 555 (N.Y. App. Div. 2d Dept. 2006). In the absence of such "foundational facts," an expert's "bare, conclusory statement" that a product is defective has no probative force. Fallon v. Clifford B. Hannay & Son, Inc., 153 A.D.2d 95, 101-102, 550 N.Y.S.2d 135 (N.Y. App. Div. 3d Dept. 1989); see also D'Auguste, 26 A.D.3d at 404, 809 N.Y.S.2d 555. The requirement under New York law that an expert's opinion be grounded in `foundational facts' is closely related to the requirement under Federal Rule of Evidence 702 that the opinion be based on "sufficient facts and data" and "reliable principles and methods." Fed. R. Evid. 702.
In addition to showing that a product design creates a substantial likelihood of harm, the plaintiff must prove that there existed a feasible alternative design. Failure to proffer an alternative design is fatal to a design defect claim. See Greenberg v. Larox, Incorporated, 673 Fed. Appx. 66, 69-70 (2d Cir. 2016) (summary order) ("Summary judgment on the design defect claim, however, was nonetheless warranted because Greenberg failed to submit evidence that Larox could have designed a safer version of its product"); Aaron D. Twerski & James A. Henderson, Jr., Manufacturers' Liability for Defective Product Designs: The Triumph of Risk-Utility, 74 Brook. L. Rev. 1061, 1093 & n. 139 (2009) ("[T]he case law in New York is replete with decisions by courts that defendants are entitled to summary judgment because plaintiffs failed to introduce credible evidence of a reasonable alternative design") (collecting cases). Because the availability of a reasonable alternative design depends on factors such as "production costs," "product longevity, maintenance, repair, and [a]esthetics," Restatement § 2 cmt f, it must generally be imparted through the testimony of an expert. See Cuntan, 2009 WL 3334364, at *6 ("Under New York
A plaintiff may establish that a product design is defective by showing that it violates applicable product safety laws. In this regard, under New York law, it matters whether the violation is statutory or regulatory in nature. A product's noncompliance with an applicable product safety statute renders the product defective per se where "it can be shown that [the] plaintiff belongs to the class of legislatively intended beneficiaries and that a right of action would be clearly in furtherance of the legislative purpose." Sita v. Danek Medical, Inc., 43 F.Supp.2d 245, 262 (E.D.N.Y. 1999) (quoting CPC International Inc. v. McKesson Corp., 70 N.Y.2d 268, 276, 519 N.Y.S.2d 804, 514 N.E.2d 116 (N.Y. 1987)). By contrast, regulatory violations are evidence of a defect, but do not constitute a defect per se. See Cappellini v. McCabe Powers Body Co., 713 F.2d 1, 4-5 (2d Cir. 1983) ("Under New York law ..., which applies to this diversity action, a regulatory violation does `not establish negligence per se, but merely constitutes some evidence of negligence, which the jury could take into consideration with all other evidence bearing on that subject'") (citing Schumer v. Caplin, 241 N.Y. 346, 351, 150 N.E. 139 (N.Y. 1925) and Conte v. Large Scale Development Corporation, 10 N.Y.2d 20, 29, 217 N.Y.S.2d 25, 176 N.E.2d 53 (N.Y. 1961)). See also Montalvo v. Rheem Textile Systems, Inc., No. 86-CV-9501 (SWK), 1991 WL 52777, at *3 (S.D.N.Y. Apr. 4, 1991).
Even where a plaintiff has established that a product was defective by virtue of its noncompliance with applicable statutes or regulations, they must still prove that this defect was the cause of their injury. See, generally, Martin v. Herzog, 228 N.Y. 164, 170, 126 N.E. 814 (N.Y. 1920) ("Proof of negligence in the air, so to speak, will not do") (citation and quotation marks omitted).
A plaintiff who cannot prove a specific design or manufacturing defect through expert testimony or other direct evidence may nonetheless prevail on the basis of circumstantial evidence alone. See Ramos v. Howard Industries, Inc., 10 N.Y.3d 218,
Speller, 100 N.Y.2d at 42, 760 N.Y.S.2d 79, 790 N.E.2d 252 (quoting Restatement § 3); see also id. at 41, 760 N.Y.S.2d 79, 790 N.E.2d 252 ("In this regard, New York law is consistent with the Restatement[.]"). In contrast to the mode of proof identified in Discussion I.1, supra, a plaintiff attempting to demonstrate a product defect circumstantially "need not explain specifically what constituent part of the product failed." Restatement § 3 cmt c.
This rule traces its historical antecedents to the law of negligence and the doctrine of res ipsa loquitur, which permits a trier of fact to infer that the harm suffered by a plaintiff was caused by the negligence of the defendant when the event is of a kind that ordinarily does not occur in the absence of negligence and other responsible causes are eliminated by the evidence. See id. § 3 cmt a & Reporter's Note (citing Restatement (Second) of Torts § 328D (1965)). This doctrine recognizes that, generally, in the absence of a defect, chairs do not suddenly collapse,
Under this circumstantial approach, the plaintiff must first establish that the injury "was of a kind that ordinarily occurs as a result of a product defect," Speller, 100 N.Y.2d at 42, 760 N.Y.S.2d 79, 790 N.E.2d 252; Restatement § 3(a), which may be inferred where "the product did not perform as intended," Riegel, 451 F.3d at 125; Jarvis, 283 F.3d at 44; Speller, 100 N.Y.2d at 41, 760 N.Y.S.2d 79, 790 N.E.2d 252; Halloran v. Virginia
Plaintiff's claim that the TPMS Design is defective relies in large part on the proposed opinions of Leiss. Defendant moves to preclude Leiss' opinions under Federal Rule of Evidence 702.
"The Federal Rules of Evidence assign to [the district court] `the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" U.S. v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). To that end, Federal Rule of Evidence 702 provides that:
Fed. R. Evid. 702.
The proponent of the expert testimony bears the burden of "establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." Williams, 506 F.3d at 160. The standards governing admissibility under Rule 702 have been described as "liberal and flexible," Hilaire, 54 F.Supp.3d at 234; Houlihan v. Marriott Intern., Inc., No. 00-CV-7439 (RCC), 2003 WL 22271206, at *3 (S.D.N.Y. Sept. 30, 2003), embracing a general "presumption of admissibility," Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), pursuant to which rejection of expert testimony is "the exception rather than the rule," Melini v.
Leiss holds a Bachelor of Science in mechanical engineering from Lawrence Technological University. (See Leiss Rep. at 18). As of the date of his report, he has nine years of experience in the "design, development, and manufacturing of production vehicles," which "covers most facets of bringing a newly designed automobile from an idea to mass manufacture and sale." (Id. at 2). His curriculum vitae indicates that he was employed as an engineer for General Motors in 1999 and for Chrysler from 1999 to 2007, and has performed litigation-related investigations involving vehicle defects since 2007. (See id. at 16-18). He is a licensed engineer in Connecticut and New York, a certified vehicle fire investigator, and a certified fire and explosion investigator. (See Leiss Dep. at 214:5-15).
While working at Chrysler, Leiss was "involved in the design" of the tire pressure monitoring systems of the Dodge Durango and Chrysler Aspen. (Id. at 50:11-13; Leiss Rep. at 12). His work on these systems mainly involved testing prototype vehicles, "catalog[ing] any issues"—such as whether the TPMS systems were accurately displaying warnings for low tire pressure events—and "mak[ing] sure that they were properly addressed." (Leiss Dep. at 54:12-57:5). Leiss was not involved in testing the systems for "compliance with any regulations or requirements," such as FMVSS 138. (Id. at 56:9-12; see id. at 96:7-11). Instead, his experience touched on such matters as "what [the tire pressure monitoring systems] need[ed] to look and feel like." (Id. at 96:18-19). As of the date of his deposition, Leiss had no training on FMVSS 138 and had not worked on any cases "pertaining to tire pressure monitoring systems" prior to this case. (Id. at 96:2-6, 96:23-25). He has never previously been accepted by a court as an expert on tire pressure monitoring systems or FMVSS 138 compliance, nor has he previously been excluded by a court on those topics. (See id. at 86:14-22).
Although Leiss testified that he had experience designing and testing TPMS systems generally, it does not appear that he has specific experience with TPMS systems, such as BMW's, that have a manual reset feature. The two TPMS systems that he worked on while at Chrysler both lacked a manual reset feature. (See Leiss Rep. at 12; Leiss Dep. at 187:18-190:2). He also testified that "the vast majority of the models that I know of and am familiar with ... do not have a manual reset feature." (Leiss Dep. at 241:13-16). In addition, it is uncertain whether Leiss even understands the underlying mechanics of the 2012 BMW X3's reset feature. To be sure, some of his deposition answers indicate that he has a basic understanding of the purpose and function of the reset feature. For example, he testified that "by resetting after you have now reinflated the tire, ... you are now telling the system that all of the tires are within their prescribed... inflation pressures and so any
In light of Leiss' professional experience, the Court finds that he is competent to testify about tire pressure monitoring systems generally, but that he is not qualified to testify about TPMS systems with manual reset features in particular. Specifically, the Court has seen nothing which would qualify Leiss to testify about how manual reset features work `under the hood'—their internal mechanics, how they interact with other components of an automobile, whether they are necessary or desirable in certain automobile models, the possible ways in which they can be designed, and the trade-offs (in cost, functionality, utility, etc.) inherent in such design choices. Nor has Plaintiff shown that Leiss' experience designing and testing tire pressure monitoring systems without manual reset features would fill these gaps. It is true that "[a]n expert need not be precluded `from testifying merely because he or she does not possess experience tailored to the precise product or process that is the subject matter of the dispute.'" Hilaire, 54 F.Supp.3d at 236 (quoting Yaccarino v. Motor Coach Indus., Inc., No. 03-CV-4527 (RLM) (CPS), 2006 WL 5230033, at *9 (E.D.N.Y. Sept. 29, 2006)); see also id. ("[W]here an expert possesses qualifications in a `general field closely related to the subject matter in question, the court will not exclude the testimony solely on the ground that the witness lacks experience in the specialized areas that are directly pertinent.'") (quoting Deutsch v. Novartis Pharm. Corp., 768 F.Supp.2d 420, 425 (E.D.N.Y. 2011)). But in this case, Leiss conceded that the internal workings of the 2012 BMW X3's reset feature were a "black box" to him. (Leiss Dep. at 139:9-13). He has, to put it simply, disclaimed expertise on that particular subject.
Additionally, Leiss is not qualified to opine on questions concerning tire safety— including the air pressure at which it is likely that a tire could come apart or spark a fire. Indeed, Leiss conceded that questions concerning the pressure at which a tire would become "flat" or "extremely deflated" fall outside of the scope of his expertise (id. at 152:8-9, 153:5-6) and that he had to consult a separate expert to determine whether driving at certain tire pressures can cause damage to a vehicle (see id. at 153:11-154:14).
To the extent that Leiss has "crossed the foundational threshold of establishing his personal background qualifications as an expert," he must provide further foundation "as to the validity and reliability of his theories" in order for his conclusions to be admissible under Rule 702. Hilaire, 54 F.Supp.3d at 242 (citations and internal quotation marks omitted).
It should be emphasized once again that Defendant does not dispute Leiss' factual determinations regarding the operation of the 2012 BMW X3's TPMS— that it can be reset while a tire is deflated and will fail to detect the low pressure condition after being reset in such a manner. (See Leiss Rep. at 14; see also Yeldham Supp. Rep. at 2 (stating that this finding comes as "no surprise")). Rather, Defendant's real dispute is with Leiss' subjective opinion that this feature "renders the system defective" (id. at 14) because a different system was "feasible" to be installed (id. at 13). Defendant also disputes Leiss' inference that this feature of the 2012 BMW X3's TPMS was an actual "cause" of the fire. (Id. at 14).
Neither Leiss' opinions regarding defectiveness, nor his conclusions as to causation, derive from any scientific principles or methodology—that is, the "formulating and testing a hypothesis, conducting experiments, devising and employing controls, generating data, [and] reasoning from the data to derive conclusions." Colon, 199 F.Supp.2d at 76. In Daubert, the Supreme Court set forth a list of non-exhaustive factors to be considered that bear on the reliability of scientific theories and techniques:
Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593-594, 113 S.Ct. 2786); see Almeciga v. Center for Investigative Reporting, Inc., 185 F.Supp.3d 401, 415 (S.D.N.Y. 2016) (noting that the four Daubert factors apply to "expert opinions purporting to offer scientific conclusions in particular"). None of the Daubert factors weigh in Leiss' favor here. His opinions concerning defectiveness, alternative design, and causation are not supported by theories which are capable of being tested, which are subject to peer review or standards controlling their operation, which have a known or potential rate of error, or which have gained general acceptance in the scientific community. Indeed, the only `experiment' Leiss conducted was a simple test of an exemplar vehicle, which established nothing more than that which Defendant has already conceded: that it is possible to reset the TPMS at a low pressure level and thereby extinguish the warning telltale while driving at that level.
Of course, the mere fact that Leiss' key conclusions are not `scientific' does not make them invalid. They may derive from some "technical" or "other specialized knowledge." Fed. R. Evid. 702. Even so, the Court is not persuaded that these conclusions are supported by adequate facts, data, or methods to render them admissible.
Leiss proffers two alternative designs which, he claims, "were technologically and economically feasible to be installed on the 2012 BMW X3" and will identify an inadequately inflated tire under all conditions. (Leiss Rep. at 13). One such proposal—a manual reset feature that will "alert the operator to a low tire inflation pressure, even if [the TPMS is] reset" (id.)—can be rejected out of hand, as Leiss has not demonstrated that this technology was available prior to the 2012 model year. Although Leiss insists that there were TPMS systems "on the market" prior to 2012 that employed such technology, the only concrete example he gives is the 2016 BMW X3, a subsequent model year. (Id. at 12-13). Additionally, Leiss makes no attempt to explain how such technology would work.
Leiss' only other proposed alternative design is a TPMS that eliminates the manual reset feature altogether. He states that the 2007 Dodge Durango and Chrysler Aspen, the two vehicles whose TPMS systems he personally worked on, both incorporated a TPMS without a manual reset feature. (See id. at 12). But there is nothing, either in Leiss' report or in his deposition, that makes it clear how Leiss arrived at the conclusion that such a system would have been "feasible" to install on the 2012 BMW X3. As noted above, the underlying mechanics of the manual reset feature fall outside of the scope of Leiss' expertise, as do attendant questions of how the reset feature interacts with the vehicle's other components or whether it is necessary for this particular vehicle design. See Discussion II.2.A, supra. Leiss does not appear to have considered (or, if he has considered it, his report and testimony do not reflect) whether or not there are significant engineering differences between the 2012 BMW X3 and other vehicles that might require installation of a reset feature in the former model. Nor has Leiss disclosed any underlying facts, data, testing, or prototypes which demonstrate that the elimination of the 2012 BMW X3's reset feature would have been "within the realm of practical engineering feasibility." Erazo, 2019 WL 1044365, at *2; Rypkema, 263 F.Supp.2d at 692.
For Leiss' conclusion that Defendant's design choices were "defective" to be admissible, Leiss would have been required to consider the magnitude and severity of any safety risks and the concomitant utility or benefits of the design vis-à-vis the available alternatives, all in accordance with what it means for a specific product design to be "defective" under New York law. See Discussion I.1, supra. No such analysis is revealed here. Although it can be inferred that there are some risks involved when driving with a tire whose inflation level is 75% or less than the recommended cold inflation level, Leiss does not attempt to measure or quantify this risk. Nor could he, as such questions fall squarely outside of the zone of his expertise. See Discussion II.2.A, supra. Notably, the alleged defect in the TPMS Design could only become manifest at pressure levels above 23 psi (see Yeldham Supp. Rep. at 2), and it is unclear whether the risk of tire failure at these levels is a particularly substantial one.
In short, Leiss' opinion concerning the purported `defectiveness' of the manual reset feature is conclusory, unsupported by adequate foundational facts, and lacking in the sort of risk-utility analysis that New York law requires. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Joiner, 522 U.S. at 146, 118 S.Ct. 512. For these reasons, his opinion regarding defectiveness is precluded.
Leiss' opinion regarding causation fares no better. His report is completely silent as to how it is that he concluded that "[t]he defective TPMS in the 2012 BMW X3 [was] a cause of the fire in [the Subject Vehicle]." (Leiss Rep. at 14).
Finally, Leiss' opinion that the design of the 2012 BMW X3's TPMS violates FMVSS 138 (see Leiss Rep. at 12) hinges on a disputed point of law concerning the meaning of that regulation. See Discussion III.1.A, infra. Such legal questions are for the Court, not an expert, to resolve.
Having precluded Leiss' testimony on the issues of defectiveness, alternative design, and causation, we proceed to analyze whether summary judgment should be granted.
As previously noted, a plaintiff alleging a design defect claim may prevail by pointing to a specific flaw in the product's design and providing evidence that the flaw (1) constitutes a design defect, i.e. that it is not "reasonably safe," and (2) was a "substantial factor" in causing the injury in question. Voss, 59 N.Y.2d at 107, 463 N.Y.S.2d 398, 450 N.E.2d 204; Discussion I.1, supra. Here, the only specific defect that Plaintiff proposes is the Vehicle's manual reset feature, i.e., its ability to be reset at a low tire pressure, thereby extinguishing the low tire pressure warning. Alternatively, a plaintiff may prevail on a design and/or manufacturing defect claim, without identifying a specific defect, by producing circumstantial evidence that the harm "was of a kind that ordinarily occurs as a result of product defect" and excluding any alternative explanations of the injury proffered by the defendant. Speller, 100 N.Y.2d at 42, 760 N.Y.S.2d 79, 790 N.E.2d 252; Restatement § 3; see Discussion I.2, supra. We consider, as to each method of proof, whether Plaintiff has raised a triable issue of fact warranting denial of summary judgment.
We consider first whether Plaintiff has raised a genuine issue of material fact as to whether the design of the manual reset feature is defective, i.e. not "reasonably safe." Voss, 59 N.Y.2d at 107, 463 N.Y.S.2d 398, 450 N.E.2d 204; Discussion I.1, supra. Plaintiff produced two forms of evidence on this point: first, Leiss' opinion that the design is defective; and, second, the design's alleged noncompliance with FMVSS 138, which in and of itself may constitute evidence that the design is defective, see Discussion I.1.B, supra. Because the Court has excluded Leiss' testimony on the issue of defectiveness, see Discussion II.2.B, supra, our inquiry is limited to the issue of whether the design violates FMVSS 138.
Plaintiff's argument that the manual reset feature violates FMVSS 138 derives from the following provision of the regulation:
FMVSS 138 S4.2. Subsection S4.2(a), as previously noted, sets forth the 75% Rule, which requires the warning telltale to activate if the pressure in any tire drops to 75% of the manufacturer's recommended cold inflation pressure. See FMVSS 138 S4.2(a). Thus, under subsection S4.2(b), the warning must continue to illuminate unless either the tire pressure is re-inflated above 75% of the recommended cold inflation pressure or the TPMS is "manually reset in accordance with the vehicle manufacturer's instructions." But, in the case of the 2012 BMW X3, the Owner's Manual explicitly instructs operators not to reset their TPMS until the tire has been re-inflated to its correct pressure level. (See Owner's Manual at 88). Therefore, according to Plaintiff, because any attempt to reset the 2012 BMW X3's TPMS while the vehicle's tires have inadequate pressure is not "in accordance with the vehicle manufacturer's instructions," TPMS violates FMVSS 138 S4.2(b) by allowing the warning to be shut off when an operator resets the TPMS at a pressure level that falls beneath 75% of the recommended cold inflation level. (See Pl. Opp. at 16).
Plaintiff's argument makes sense based on a plain, grammatical reading of the regulatory text, insofar as it seeks to give meaning to the phrase "... in accordance with the vehicle manufacturer's instructions." But a contrary interpretation is also plausible, because if the regulation were construed to require manufacturer to install TPMS systems that are incapable under any circumstances of being extinguished while the tire's inflation levels are less than 75% of the recommended cold inflation level, then the clause beginning with "... or until manually reset" would be rendered superfluous. In short, while the text of the regulation makes it clear that the agency contemplated and permitted manual reset features generally, it does not reveal whether the agency specifically intended to approve of manual reset features, like that of the 2012 BMW X3, which are capable of being reset at tire pressures less than those prescribed under the 75% Rule. Because the text of the regulation is ambiguous, we may resort to its regulatory history to clarify its intended meaning. See Abbott Laboratories v. U.S., 84 Fed. Cl. 96, 103 (Fed. Cl. 2008), aff'd, 573 F.3d 1327 (Fed. Cir. 2009).
FMVSS 138 was promulgated by the National Highway Traffic Safety Administration (
During the notice and comment period prior to the April 8, 2005 final rule, commenters specifically raised concerns, mirrored by Plaintiff in this lawsuit, "regarding the possibility of a TPMS reset button extinguishing the telltale before the underlying problem (i.e., low tire pressure or system malfunction) has been corrected." 70 Fed. Reg. at 18,142. One commenter noted that drivers might "use TPMS reset buttons to extinguish the low pressure warning lamp without correcting the tire
These statements make it clear that NHTSA did not intend for the final rule to prohibit the type of TPMS design employed in the 2012 BMW X3. Instead, the NHTSA believed that the appropriate solution was for manufacturers to include language in the owner's manual instructing drivers not to reset the system until all tires have been re-inflated to their proper level. Defendant included precisely such language in the 2012 BMW X3 Owner's Manual (see Owner's Manual at 88), and Plaintiff does not challenge the adequacy of these warnings. Therefore, the 2012 BMW X3's manual reset feature does not violate FMVSS 138.
Accordingly, Plaintiff has failed to raise a genuine issue of material fact as to whether the manual reset feature is defective.
Separate and apart from its failure to provide evidence showing that the manual reset feature was defective, Plaintiff failed to raise a genuine issue of fact as to causation. As the Court noted in its discussion precluding Leiss' testimony on the issue of causation, the record does not support a non-speculative inference that the failure of the low tire pressure warning to illuminate at the time of the fire was caused by the Subject Vehicle being improperly reset at the Open Road in October 2012. See Discussion II.2.B, supra.
For the foregoing reasons, summary judgment is granted with respect to Plaintiff's claim that its injury was caused by a design defect inherent in the Vehicle's manual reset feature.
Although the Court has precluded Leiss' testimony concerning the alleged defect in the Vehicle's manual reset feature and granted summary judgment with respect to this aspect of Plaintiff's claims, it nevertheless finds that Plaintiff is entitled to proceed to trial on the basis of circumstantial evidence of a manufacturing and/or design defect. See Speller, 100 N.Y.2d at 41-42, 760 N.Y.S.2d 79, 790 N.E.2d 252; Restatement § 3; Discussion I.2, supra.
To prevail on the basis of circumstantial evidence, Plaintiff must first establish that the incident that caused its harm "was of a kind that ordinarily occurs as a result of product defect." Speller, 100 N.Y.2d at 42, 760 N.Y.S.2d 79, 790 N.E.2d 252 (quoting Restatement § 3(a)). It has done so here. Sobers' testimony, if credited, establishes that the Vehicle's TPMS failed to emit a low tire pressure warning at any point prior to the fire, which, all parties agree, was caused by a lack of adequate air pressure. Thus, a reasonable trier of fact could determine that the TPMS "did not perform as intended" and infer that such a malfunction would not ordinarily occur in the absence of a defect. Jarvis, 283 F.3d at 44 ("[A] plaintiff in a products liability action is not required to prove a specific defect when a defect may be inferred from proof that the product did not perform as intended by the manufacturer").
Next, because Plaintiff has established that the incident was of a kind that ordinarily occurs as a result of a product defect, "[D]efendant bears [the] burden of offering some `evidence in admissible form establishing that the plaintiff's injuries were not caused by a ... defect in the product.'" Sanchez, 2000 WL 968776, at *3 (quoting Graham, 271 A.D.2d at 854, 706 N.Y.S.2d 242); see Discussion I.2, supra. Defendant focuses exclusively on refuting Sobers' account of the event, presenting Yeldham's statement that Sobers "may have become inattentive" to the warning light (Yeldham Rep. at 12) and combing through the record for circumstantial indicators that Sobers may not have been telling the truth (see Def. Reply at 6).
Defendant also argues that "Plaintiff... misunderstands its burden in opposition to summary judgment. BMW NA does not have the burden of proving that Ms. Sobers' misuse of the Vehicle caused the fire. Rather, in the absence of direct evidence of a specific design or manufacturing defect, Plaintiff has the burden of ruling out Ms. Sobers' misuse as a cause of the fire." (Def. Reply at 6) (emphasis in the original). But with all due respect to Defendant, it is they who misunderstand the burden of proof. As previously stated, and as numerous courts have held, once a plaintiff establishes that the incident occurred under circumstances ordinarily caused by a defective product, the burden falls on the defendant to proffer an alternative explanation. See Florentino, 2008 WL 11417177, at *8; Giordano, 2007 WL 4233002, at *5; LaBarge, 2006 WL 2795612, at *7; Sanchez, 2000 WL 968776, at *3; Graham, 706 271 A.D.2d at 854, 706 N.Y.S.2d 242. The only alternative explanations that the plaintiff is required to rule out are those that the defendant has proposed. See Riegel, 451 F.3d at 125 ("Thus, to overcome Medtronic's arguments and survive summary judgment, the Riegels had to come forward with competent evidence excluding Medtronic's proffered alternative causes as the actual origin of the catheter's rupture") (emphasis added).
Here, as noted above, Defendant has proposed only one alternative theory of this accident: that Sobers ignored or was inattentive to the warning light. Plaintiff has "rul[ed] out" this explanation by presenting Sobers' testimony that the light did not turn on, testimony which a jury could reasonably credit. Of course, the mere fact that a jury could credit this testimony does not mean that it must. At trial, Defendant will be free to persuade the jury that her account should not be believed. For summary judgment purposes, however, Plaintiff has satisfied its burden of raising "a triable question of fact by offering competent evidence which, if credited by the jury, is sufficient to rebut defendant's alternative cause evidence." Cuntan, 2009 WL 3334364, at *9 (emphasis added) (alterations omitted) (quoting Ramos, 10 N.Y.3d at 223, 855 N.Y.S.2d 412, 885 N.E.2d 176).
Finally, Defendant argues, for the first time in its reply brief, that Plaintiff's failure to pay for the storage of the Vehicle and its ensuing loss and destruction presents a "spoliation issue." (Def. Reply at 5 n. 3). Arguments raised for the first time in a reply brief will generally not be considered. See Fisher v. Kanas, 487 F.Supp.2d 270,
For the foregoing reasons, summary judgment is denied as to Plaintiff's design/manufacturing defect claim asserted on the basis of circumstantial evidence.
Defendant moves for sanctions under Federal Rule of Civil Procedure 11 on various grounds. However, that Rule provides that "[t]he motion must be served under Rule 5" and "must not be filed or presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service[.]" Fed. R. Civ. P. 11(c)(2). "The safe-harbor provision is a strict procedural requirement." Star Mark Management, Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 175 (2d Cir. 2012). The Second Circuit has made it clear that, in order to comply with Rule 11(c)(2), a letter notifying the non-movant of a forthcoming motion for sanctions must be accompanied, at a minimum, by "a copy of [the movant's] notice of motion for sanctions." Id. at 176. "An informal warning in the form of a letter without service of a separate Rule 11 motion" does not qualify as service of the motion itself, and is therefore "not sufficient to trigger the 21-day safe harbor period." Id. at 175; see also Gal v. Viacom International, Inc., 403 F.Supp.2d 294, 309 (S.D.N.Y. 2005) ("[T]he plain language of the rule states explicitly that service of the motion itself is required to begin the safe harbor clock—the rule says nothing about the use of letters") (emphasis added).
Here, Defendant provided Plaintiff notice of its motion for sanctions in the form of a letter dated February 22, 2018, but the record does not reflect that the letter was accompanied by a copy of the notice of motion itself, or by any other document. (See Def. Ex. X, ECF No. 86-27). Thus, notice of the motion was not served in accordance with Rule 11(c)(2).
For the foregoing reasons, (i) Leiss' testimony is
SO ORDERED.
