Boateng v. BMW of North America, LLC et al
Filing
157
MEMORANDUM & ORDER: For the reasons set forth in the attached Memorandum and Order (M&O), the Court rules as follows on the parties' pending motions in limine:Defendants' motion to exclude evidence of "other dissimilar incidents&quo t; is GRANTED in part and DENIED in part. (See M&O Discussion Section I.A.2.)Defendants' motion to exclude photographs of Plaintiff's injury is DENIED. (See M&O Discussion Section I.B.2.)Defendants' motion to exclude evidence n ot produced in discovery is DENIED. (See M&O Discussion Section I.C.2.)The Court DENIES as moot Defendants' motion to exclude news media coverage in light of Plaintiff's withdrawal of the exhibits. (See M&O Discussion Section I.D.)D efendants' motion to exclude evidence of recalls unrelated to BMW's soft close door is GRANTED. (See M&O Discussion Section I.E.)Defendant's motion to exclude Plaintiff's demonstrative videos of the Subject Vehicle is GRANTED in part and DENIED in part. (See M&O Discussion Section I.F.)Plaintiff's first motion in limine to exclude evidence suggesting external forces caused Plaintiff's injury is DENIED. (See M&O Discussion Section II.A.2.)Plaintiff's second motion in limine to exclude evidence of Defendants' compliance with FMVSS No. 206 is GRANTED. (See M&O Discussion Section II.B.)The parties are directed to meet and confer and incorporate the Court's rulings into their revised Joint Pretrial Order, which must be filed no later than April 12, 2024, pursuant to this Court's February 1, 2024, Scheduling Order. Ordered by Judge Kiyo A. Matsumoto on 4/8/2024. (SP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
GODWIN BOATENG,
MEMORANDUM AND ORDER
Plaintiff,
17-CV-209(KAM)(SIL)
-againstBAYERISCHE MOTOREN WERKE
AKTIENGESELLSCHAFT a German
Corporation, BMW OF NORTH AMERICA, LLC,
BMW MANUFACTURING COMPANY, LLC, BMW OF
NORTH AMERICA, INC., BMW GROUP, INC.,
BMW (US) HOLDING CORP.,
Defendant.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Before
the
Court
motions in limine.
are
the
parties’
respective
pre-trial
(See ECF No. 147, Defendants’ Omnibus Mot. in
Lim. to Exclude Evidence; ECF No. 150, Plaintiff’s Mot. in Lim.
No. 1; ECF No. 153 Plaintiff’s Mot. in Lim. No. 2.)
For the reasons set forth below, the Court rules as follows:
•
Defendants’ motion to exclude evidence of “other dissimilar
incidents” is GRANTED in part and DENIED in part.
(See infra
Discussion Section I.A.2.)
•
Defendants’
motion
injury is DENIED.
to
exclude
photographs
of
Plaintiff’s
(See infra Discussion Section I.B.2.)
1
•
Defendants’
motion
to
discovery is DENIED.
•
exclude
evidence
not
produced
in
(See infra Discussion Section I.C.2.)
The Court DENIES as moot Defendants’ motion to exclude news
media coverage in light of Plaintiff’s withdrawal of the
exhibits.
•
(See infra Discussion Section I.D.)
Defendants’ motion to exclude evidence of recalls unrelated
to BMW’s soft close door is GRANTED.
(See infra Discussion
Section I.E.)
•
Defendant’s
motion
to
exclude
Plaintiff’s
demonstrative
videos of the Subject Vehicle is GRANTED in part and DENIED
in part.
•
(See infra Discussion Section I.F.)
Plaintiff’s
suggesting
DENIED.
•
first
motion
external
in
forces
limine
caused
to
exclude
Plaintiff’s
evidence
injury
is
(See infra Discussion Section II.A.2.)
Plaintiff’s second motion in limine to exclude evidence of
Defendants’ compliance with FMVSS No. 206 is GRANTED.
(See
infra Discussion Section II.B.)
BACKGROUND
The court assumes familiarity with the underlying facts, but
will briefly describe the facts that are relevant to these motions.
The court refers to its Summary Judgment Decision for additional
factual
background.
Boateng
v.
2
Bayerische
Motoren
Werke
Aktiengesellschaft, No. 17-CV-209 (KAM) (SIL), 2022 WL 4357555, at
*2-7 (E.D.N.Y. Sept. 20, 2022).
On July 6, 2016, Plaintiff Godwin Boateng (“Plaintiff” or
“Mr. Boateng”) suffered an injury to his right hand.
Id. at *2.
Plaintiff was exiting from the driver's side door of his 2013 BMW
X5 (“Subject Vehicle”), on a narrow street when he moved back to
avoid oncoming traffic.
Id.
Mr. Boateng’s back was to the door,
his right hand behind his back, and most of his fingers were
resting on the exterior handle of the door as he positioned the
door away from oncoming traffic.
Id.
Without warning, the door
“just automatically closed” on Mr. Boateng's right thumb and
amputated about half of it immediately.
Id.
The Subject Vehicle was designed by Defendant Bayerische
Motoren
Werke
Aktiengesellschaft
(“BMW
AG”),
assembled
by
Defendant BMW Manufacturing Co., LLC (“BMW MC”), distributed by
Defendant BMW of North America, LLC (“BMW NA”), and sold by nondefendant Rallye BMW dealership (the “dealership”).
Id.
In other
words, BMW AG designed the Subject Vehicle and the “soft-close
automatic door” (SCAD) technology. Id.
BMW MC installs the SCAD
in various models and years of BMW vehicles. Id.
BMW NA is
responsible for the distribution of completed vehicles in the
United States and “deals with the SCAD in the way of replacement
parts [and] quality problems.”
Id.
3
SCAD
references
the
“soft-close
automatic
door”
feature
included in some BMW vehicles, including the Subject Vehicle's
model. The SCAD is designed to assist the user of the vehicle, in
providing “comfortable door closing without making noise and to
close the door safely at any time.”
Id.
Per Federal Motor Vehicle
Safety Standard (“FMVSS”) No. 206, a door must have a “fully
latched
position
position.”
Id.
and
a
secondary
(partially
closed)
latch
Although the secondary latch is typically present
to minimize the ejection of occupants through an unintentional
door opening, the secondary latch is also the location where the
SCAD engages. Id.
LEGAL STANDARD
I.
Motions in Limine
“The purpose of a motion in limine is to allow the trial court
to rule in advance of trial on the admissibility and relevance of
certain forecasted evidence.”
Hopkins v. Nat'l R.R. Passenger
Corp., No. 08-CV-2965 (NGG) (RML), 2016 WL 8711718, at *2 (E.D.N.Y.
Apr. 29, 2016); see also Luce v. United States, 469 U.S. 38, 40
n.2 (1984) (defining such motions as “any motion, whether made
before
or
during
trial,
to
exclude
anticipated
evidence before the evidence is actually offered”).
prejudicial
“Evidence
should be excluded on a motion in limine only when the evidence is
clearly inadmissible on all potential grounds.”
United States v.
Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001).
4
“[C]ourts
considering a motion in limine may reserve decision until trial,
so that the motion is placed in the appropriate factual context.”
Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011)
(citation omitted). Further, a district court’s ruling on a motion
in limine is preliminary and “subject to change when the case
unfolds.”
II.
Luce, 469 U.S. at 41.
Motions in Limine
Federal
evidence
is
Rule
of
Evidence
402
unless
any
admissible
provides
of
the
that
“[r]elevant
following
provides
otherwise: the United States Constitution; a federal statute;
these rules; or other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.”
“unless
an
exception
admissible.’”
2012)
applies,
all
Fed. R. Evid. 402.
‘[r]elevant
Thus,
evidence
is
United States v. White, 692 F.3d 235, 246 (2d Cir.
(quoting
Fed.
R.
Evid.
402).
Rule
401
provides
that
“[e]vidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”
R. Evid. 401.
Fed.
The Second Circuit has characterized this relevance
standard as “very low.”
See White, 692 F.3d at 246 (quoting United
States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir. 2008)).
Indeed,
“[t]o be relevant, evidence need not be sufficient by itself to
prove a fact in issue, much less to prove it beyond a reasonable
5
doubt.”
United States v. Abu-Jihaad, 630 F.3d 102, 132 (2d Cir.
2010).
Under Federal Rule of Evidence 403, “[t]he court may exclude
relevant
evidence
if
its
probative
value
is
substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
R. Evid. 403.
Fed.
“[W]hat counts as the Rule 403 ‘probative value’ of
an item of evidence, as distinct from its Rule 401 ‘relevance,’
may be calculated by comparing evidentiary alternatives.”
Chief v. United States, 519 U.S. 172, 184 (1997).
403
requires
“the
district
court
[to]
make
Old
In short, Rule
a
conscientious
assessment of whether unfair prejudice substantially outweighs
probative value” with regard to each piece of proffered evidence.
Al-Moayad, 545 F.3d at 160 (quoting United States v. Salameh, 152
F.3d 88, 110 (2d Cir. 1998) (per curium)).
DISCUSSION
I.
Defendants’ Motion
Defendants have filed a single omnibus motion in limine
seeking to exclude: (i) evidence of other incidents that Defendants
contend are “dissimilar”; (ii) photographs of Plaintiff’s right
thumb shortly after the accident that Defendants contend are unduly
prejudicial; (iii) documents not produced by Plaintiff during
discovery; (iv) media coverage of Plaintiff’s injury; (v) evidence
6
of recalls that Defendants contend are “unrelated and irrelevant”
to Plaintiff’s accident; and (vi) videos recorded by Plaintiff and
his counsel showing the door closure of the Subject Vehicle.
The
Court will consider each category of requested exclusions in turn.
A.
Evidence of Other Incidents
Defendants
seek
to
exclude
evidence
of
other
similar
incidents (“OSI” evidence) proffered by Plaintiff, arguing that
Plaintiff “cannot meet his burden to establish that any of [the
incidents] are substantially similar to his alleged incident.”
(ECF No. 147-68, Defendants’ Memorandum of Law in Support of their
Omnibus Motion (“Def’t Mem.”), at 2.) Plaintiff argues in response
that (i) all of the incidents involved BMW vehicles; (ii) each
vehicle had SCAD-equipped doors; (iii) all of the incidents involve
a finger injury where the SCAD feature allegedly engaged; and (iv)
in each case there were no warnings or safety features.
(ECF No.
148, Plaintiff’s Response in Opposition (“Pl. Opp.”), at 6-7.)
Plaintiff also stipulates that Exhibit 38 was dissimilar, as it
did not involve a SCAD-equipped door.
(Id. at 6.)
Defendants
argue in further support that Plaintiff has failed to make the
requisite showing of substantial similarity, and that it is not
clear he could do so with admissible evidence, in any event.
(ECF
No. 149, Defendants’ Reply in Further Support (“Def’t Reply”), at
2-3.)
The
Court
respectfully
rejects
Defendants’
narrow
interpretation of what constitutes a similar incident and finds
7
that, even if much of Plaintiff’s proffered evidence constitutes
inadmissible hearsay, the Plaintiff’s exhibits are comprised of
documents produced by BMW from its corporate files which may be
admissible to show notice, and in some cases causation.
1.
Legal Principles
“It is well established that in a product liability case such
as this, OSI evidence may be admitted to prove negligence, a design
defect, notice of a defect, or causation.”
In re: Gen. Motors LLC
Ignition Switch Litig., No. 14-MD-2543 (JMF), 2016 WL 796846, at
*2 (S.D.N.Y. Feb. 25, 2016) (citation omitted).
“[B]efore such
evidence may be admitted for any purpose, [however,] the proponent
must establish the prior accidents' relevance by showing that they
occurred under the same or substantially similar circumstances as
the accident at issue.”
accident
occurred
Id. (citation omitted).
under
‘substantially
“Whether a prior
similar’
conditions
necessarily ‘depends upon the underlying theory of the case, and
is defined by the particular defect at issue.’”
Lidle v. Cirrus
Design Corp., 505 F. App'x 72, 74 (2d Cir. 2012) (summary order)
(quoting Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363, 367
(W.D.N.Y. 1999)).
Importantly,
the
degree
of
similarity
required
varies
depending upon the purpose for which the OSI evidence is being
offered.
Where OSI evidence is offered to prove causation, courts
consider multiple factors including whether “(1) the products are
8
similar; (2) the alleged defect is similar; (3) causation related
to the defect in the other incidents; and (4) exclusion of all
reasonable secondary explanations for the cause of the other
incidents.”
In re: Gen. Motors LLC Ignition Switch Litig., 2016
WL
at
796846,
*2
(citations
omitted).
“By
contrast,
the
substantial similarity standard is relaxed where OSI evidence is
offered
to
show
notice;
that
is,
the
similarity
in
the
circumstances of the accidents can be considerably less than that
which is demanded when the same evidence is used for one of the
other valid purposes.”
Id. (internal quotation marks and citation
omitted). As “this is a fact-specific inquiry that depends largely
on the theory of the underlying defect in a particular case,” a
“district
court
is
owed
considerable
determination of substantial similarity.”
deference
in
its
Bitler v. A.O. Smith
Corp., 391 F.3d 1114, 1126 (10th Cir. 2004), order clarified on
reh'g, 400 F.3d 1227 (10th Cir. 2005).
If substantial similarity
is established, “[a]ny differences in the accidents . . . go to
the weight of the evidence.”
Four Corners Helicopters, Inc. v.
Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992) (internal
quotation marks and citation omitted).
2.
Application
Defendants seek to exclude a number of exhibits on the basis
that Plaintiff has failed to meet his burden to show that they are
substantially similar.
Although Defendants offer an exhibit-by9
exhibit argument, the Court will discuss their objections broadly
and will discuss individual exhibits only as needed.
Defendants are correct that OSI evidence is admissible “only
upon a showing by its proponent that the other accidents occurred
under substantially similar circumstances and conditions.”
(Def’t
Mem. at 3); see, e.g., Lidle, 505 F. App'x at 74 (noting the
proponent must establish the relevance by showing the accident
occurred “under the same or substantially similar circumstances”).
However, Defendants overplay their hand by incorrectly arguing
that Plaintiff “must provide expert testimony to establish that
the other incidents he seeks to have admitted involved similar
circumstances and were caused by a design defect related to the
soft close feature.”
(Def’t Mem. at 4.)
Defendants cite In re
Mirena IUD Prod. Liab. Litig., 202 F. Supp. 3d 304, 312 (S.D.N.Y.
2016), as
opinion.
support
for
this
contention,
but
they
misread
the
In re Mirena stands for the prospect that “[e]xpert
testimony is required in cases involving complex causation issues,
including medical device cases, because without it the jury is
left to speculate on medical issues with which the average person
is unfamiliar.”
Id. at 311.
The Court finds no support for the
contention that expert testimony is a prerequisite to the admission
of the evidence in question in the instant case, which involves a
situation comprehensible to a layperson.
10
See, e.g., id. at 312
(“That one's bone might break if crushed in a car crash is within
the ordinary experience of a lay person.”)
As noted above, Plaintiff argues that the incidents he wishes
to introduce occurred under “the same or substantially the same
circumstances” because “(i) all of the injuries in question involve
a BMW vehicle, as opposed to any other manufacturer; (ii) every
BMW vehicle involved had soft close automatic doors, and none of
the vehicles involve a non-SCAD equipped door; (iii) all of the
incidents involve a finger injury where a BMW customer’s finger
became trapped and crushed when the SCAD feature engaged; and (iv)
there were no warnings and safety features available.”
at 6-7.)
the
(Pl. Opp.
Plaintiff further argues that he may avail himself of
relaxed
“notice”
standard
for
OSI
evidence,
although
he
concedes that he is introducing the evidence to show both causation
and notice to the Defendants.
not
differentiate
“causation”
between
purposes,
the
(Id. at 7.)
incidents
Court
Because Plaintiff does
offered
will
for
apply
“notice”
the
or
heightened
“causation” standard to all as an initial matter.
As discussed previously, when using the “causation” standard
for OSI evidence, in weighing admissibility, courts may consider
whether “(1) the products are similar; (2) the alleged defect is
similar;
(3)
incidents;
causation
and
(4)
related
exclusion
to
the
defect
in
of
all
reasonable
explanations for the cause of the other incidents.”
11
the
other
secondary
In re: Gen.
Motors LLC Ignition Switch Litig., 2016 WL 796846, at *2 (citation
omitted).
As an initial matter, the Court finds that, to the
extent the other incidents involve (i) BMW vehicles (ii) with doors
utilizing the same SCAD mechanism as the Subject Vehicle (iii)
closing on and injuring an individual’s finger or thumb, the
evidence is likely to be admissible as OSI evidence.
the
evidence
must
be
otherwise
admissible
–
this
Nonetheless,
presents
a
significant hindrance to much of the evidence offered by Plaintiff,
which presents “glaring hearsay problems.”
In re: Gen. Motors LLC
Ignition Switch Litig., 2016 WL 796846, at *4 (discussing evidence
consisting
of
forms
relaying,
descriptions of incidents).
among
other
things,
customer
Specifically, to the extent Plaintiff
seeks to introduce complaints maintained by BMW that were provided
during discovery and were drafted by customers or notes from
customer interviews BMW conducted after claims of injury, such
evidence
is
exceptions.
hearsay,
and
admissible
only
through
certain
See Fed. R. Evid. 802.
Plaintiff
quotes
extensively
in
his
opposition
from
the
summaries of customer complaints, which he notes that he intends
to offer both for “causation” and “notice” purposes.
at 7, 15-17.)
(Pl. Opp.
Accordingly, the Court understands that Plaintiff
is intending to use the content of the emails to prove the truth
of the matter asserted – that the customers had injuries which
were caused by SCAD-equipped doors.
12
This is inadmissible hearsay,
and Plaintiff offers no exception that might apply.
There is no
evidence that the customers in question are unavailable to testify
as to their injuries, nor do any other hearsay exceptions apply.
Fed. R. Evid. 803, 804.
This Court finds no compelling reason to
admit this statement under the residual hearsay exception, given
that Plaintiff failed to provide any evidence to “corroborat[e]
the statement.”
Fed. R. Evid. 807.
Furthermore, to the extent
Plaintiff seeks to offer the statements only for purposes of
showing that BMW was on notice as to a potential design defect,
the Court will admit records from Defendants’ files showing the
number of customer emails and the date ranges of the emails
relating to customers’ allegations that BMW’s SCAD system resulted
in injuries to the customers’ thumbs or fingers.
Accordingly, the Court finds that Exhibits I-38 1, I-41, I-42,
I-43, I-44, I-45, I-46, I-47, I-50, I-51, I-52, I-81 (a duplicate
of I-42), I-108, I-109, I-110, I-111, I-112, I-113, I-114, I-115,
and I-116, which consist primarily of internal emails or documents
summarizing or quoting customer complaints, are hearsay, but may
be presented in summary form as described above to show notice to
Defendants.
Plaintiff has also stipulated that Exhibit 38 “does not involve a soft close
automatic door” and as such, is not admissible as OSI evidence. (Pl. Opp. at
6.)
1
13
Exhibit I-39, which Plaintiff seeks to introduce to offer
BMW’s statement that “[t]he decision to close the door is fully
that of a human being . . . [i]f there is a hand or finger in the
way, the door should not be closed,” is excluded given the lack of
detail about the incident.
Similarly, Exhibits I-40, I-48, I-49,
I-60, I-61, I-62, and I-64 (a duplicate of I-60) do not offer
sufficient detail about the incident in question to allow the Court
to
determine
whether
they
involved
an
incident
similar
to
Plaintiff’s. To the extent Plaintiff can offer additional evidence
to show that these exhibits do, in fact, involve customer injuries
allegedly caused by SCAD-equipped doors in BMW vehicles, these
exhibits may be presented in summary form to show notice as with
the other customer complaints discussed in the previous paragraph.
Exhibit I-54, which consists of “Internal Field Reports”
showing testing of vehicles which allegedly caused finger injuries
due to SCAD-equipped doors malfunctioning, may be admitted, with
some exceptions.
First, any reports which do not specify a finger
injury (such as the first report, ECF page 2, only alleging “soft
close failure”) may not be admitted unless Plaintiff can offer
further support to show the reports are related to a similar
incident.
Second, the “Nature of Complaint” field, which is
otherwise hearsay, may be admitted only to show notice.
The Court will next address Exhibits I-99 through I-107, which
consist
of
correspondence
between
14
Defendants
and
German
governmental authorities. 2
Exhibit I-99, which is a certified
translation of a letter from the German Federal Motor Transport
Authority 3 to Defendant BMW Group regarding finger injuries caused
by SCAD-equipped doors, and Exhibit I-101, BMW’s reply letter,
will not be excluded.
As discussed previously, the thumb injuries
were alleged to be caused by SCAD-equipped BMW vehicle doors –
this is sufficiently similar to be allowed to show causation and
notice under OSI rules.
Defendants argue that there is not
sufficient detail to show similarity in the letters, but the Court
finds that the language of the letters, referring to “[i]njuries
caused by door[s] with automatic closing function” is sufficient
to establish similarity. (Exhibit I-99 at 5.) Because the letters
are relevant and admissible to show causation, they are also
admissible for purposes of showing notice to Defendants. The Court
notes that the statements that BMW attributes to the customers
based on phone calls and other discussions of the incidents om
Exhibit I-101 may be introduced only for the purpose of showing
notice, as they are otherwise hearsay.
For principally the same reasons as Exhibits I-99 and I-101,
the Court will not exclude I-102, which is an email chain between
BMW and German authorities reporting incidents involved injuries
2 The Court notes that Defendants indicated in their reply brief that they would
be “amenable to withdrawing their objections to [Plaintiff’s Exhibits] 99-107
contingent upon the exclusion of the remainder of the ‘other incident’ exhibits
listed herein.” (Def’t Reply at 5.)
3 In the original German, the agency is called the Kraftfahrt-Bundesamt (“KBA”).
15
to
fingers
Likewise,
involving
Exhibits
BMW
I-103
vehicles
and
with
I-104,
SCAD-equipped
which
are
doors.
further
correspondence between German authorities and BMW following I-99
and I-102, shall not be excluded, for principally the same reasons
as those two exhibits.
Exhibits I-103 and I-104 principally deal
with questions from German authorities regarding the activation of
the SCAD functionality, and whether it could activate at gaps
larger than previously described by BMW.
BMW’s reply is quite
probative, as it offers both context for the differing measurements
of where the SCAD functionality activates (diagonal dimension vs
door protrusion dimension) and a statement by BMW that “[d]epending
on how a finger is located in the door gap, it cannot be ruled out
that
the
SCA
would
be
mistakenly
activated
depending
on
individual’s anatomy and a correspondingly severe crushing.”
I-104 at 7.)
the
(Ex.
Exhibits I-105, I-106, and I-107 4 each contain
separate correspondence from BMW on the same measurement question
with references to injuries to fingers in SCAD-equipped doors, and
will not be excluded for the same reason.
In conclusion, though the Court does not adopt Defendants’
narrow test for what constitutes OSI evidence in the instant case,
it concurs with their argument that much of the OSI evidence
proffered by Plaintiff constitutes inadmissible hearsay if offered
The Court notes that this exhibit is incorrectly marked as “Exhibit III-21”
in Defendants’ moving papers.
4
16
to prove causation or provides insufficient information as to the
nature of the incident as to determine similarity. Thus, the Court
finds that exhibits I-38, I-39, I-40, I-41, I-42, I-43, I-44, I45, I-46, I-47, I-48, I-49, I-50, I-51, I-52, I-60, I-61, I-62, I64 (a duplicate of I-60), I-81 (a duplicate of I-42), I-108, I109, I-110, I-111, I-112, I-113, I-114, I-115, and I-116 are
inadmissible, except as provided in summary form to show notice.
Exhibits I-54 and I-99 through I-107 may generally be admitted
with some exceptions, as described further above.
B.
Photographs of Plaintiff’s Right Thumb
Defendants seek to exclude six photographs of Plaintiff’s
right thumb taken immediately after the incident, Exhibits II-1
through II-6, arguing that they are “inflammatory and unduly
prejudicial while failing to be probative of any relevant matter
in controversy.”
(Def’t Mem. at 15.)
Plaintiff argues in
response that “[t]he proposed photographs were taken at the time
of the injury and are entirely relevant to the central issue in
the case.”
(Pl. Opp. at 21.)
Defendants argue in further support
that admission of the photos “would allow a visceral and emotional
response
scientific
to
graphic
analysis
photographs
and
associated
to
substitute
expert
regarding the source of Plaintiff’s injury.
opinion
for
actual
testimony”
(Def’t Reply at 5-
6.) The Court agrees with Plaintiff and finds that the photographs
may properly be admitted into evidence.
17
1.
Legal Principles
“Still photographs, motion pictures, and videotapes, now
electronically
stored
digital
information,
once
properly
authenticated, are admissible in evidence if helpful to the trier
of
fact's
understanding
litigation.”
of
a
fact
of
consequence
in
the
Michael H. Graham, 2 Handbook of Fed. Evid. § 401:7
(9th ed. 2023). “The decision whether to admit graphic or gruesome
pictorial representations of [a] plaintiff's injuries lies within
the discretion of the [district] Court.”
Colon ex rel. Molina v.
BIC USA, Inc., 199 F. Supp. 2d 53, 98 (S.D.N.Y. 2001) (citing
Martin v. Maint. Co., 588 F.2d 355, 357 (2d Cir. 1978); Whelan v.
Penn Cent. Co., 503 F.2d 886, 891 (2d Cir. 1974)).
Relevant
photographic evidence may, however, be excluded pursuant to Rule
403 if its prejudicial effect outweighs its probative value. See
Handbook of Fed. Evid. § 401.7.
“[T]he Second Circuit has made clear that the graphic or
disturbing nature of a photograph alone is not enough to render it
inadmissible.”
United States v. Salim, 189 F. Supp. 2d 93, 98
(S.D.N.Y. 2002) (citing United States v. Velazquez, 246 F.3d 204,
210-11 (2d Cir. 2001)).
Evidence that may upset or disturb a jury
may be admitted “if the probative value of that evidence is not
substantially outweighed by the evidence's negative qualities.”
Est. of Mauricio Jaquez v. Flores, No. 10-CV-2881 (KBF), 2016 WL
1084145, at *6 (S.D.N.Y. Mar. 17, 2016).
18
2.
Application
There is no question that Plaintiff will be permitted to
introduce at least some of the graphic photographs in question.
The photos are unquestionably unsettling – they depict Plaintiff’s
injury, and, as noted by Defendants, “look[] straight into the
bleeding pulp of the wound.”
(Def’t Mem at 16.)
Some photos show
“blood dripping down from the wound and pooling into the lines of
Mr. Boateng’s palm.”
(Id.)
However, the photos have an important
role to play in the determination of how Plaintiff suffered his
injury.
Specifically, the jury should be allowed to view the
photos to aid in their determination of whether Plaintiff’s injury
was caused by the automatic door closing feature, or by the force
of Plaintiff’s body pressing against the door, as suggested by
Defendants, and, if Defendants are found liable, the photos are
relevant to damages.
The Court finds the photos to be relevant to the issue of the
cause
of
Plaintiff’s
injuries,
and
that
it
is,
accordingly,
important for the factfinder to have access to the photos to
determine whether the injury is more consistent with Plaintiff’s
or
Defendants’
theory
of
injury.
Though
the
photos
may
be
disturbing, in the absence of an alternative method to assist the
jury in determining the source and extent of Plaintiff’s injury,
the Court finds they may be admitted.
See Est. of Mauricio Jaquez
v. Flores, 2016 WL 1084145, at *7 (admitting photograph depicting
19
an external bullet wound as probative of material issues relating
to the shot and wound at issue).
Exhibits II-1 through II-6 are
therefore admissible.
C.
Evidence Not Produced in Discovery
Defendants seek to exclude four additional photographs of
Plaintiff’s thumb taken just over a month after the injury, as
well as recent photographs comparing Plaintiff’s injured thumb
with his other, non-injured thumb, on the basis that they were not
produced in discovery.
(Def’t Mem. at 17.)
Defendants also seek
to exclude for the same reason Plaintiff’s 2015, 2018, 2019, 2020,
2021, and 2022 tax returns, and a 2012 contract showing Plaintiff’s
hourly rate of pay.
(Id. at 17-18.)
Plaintiff argues that the
evidence is relevant, and that the prejudice of exclusion would
outweigh the prejudice of nondisclosure during discovery.
Opp. at 25-27.)
(Pl.
Defendants argue in further support that their
position is supported by the Federal Rules of Civil Procedure and
the Court’s discovery scheduling orders.
(Def’t Reply at 6-7.)
The Court finds that Plaintiff’s failure to provide the tax returns
and
photos
during
discovery
was
substantially
justified
or
harmless, and that Defendants have failed to demonstrate that
exclusion is a proper remedy to Plaintiff’s failure to produce the
exhibits in question.
20
1.
Legal Principles
Rule 37(c)(1) describes the available remedies when a party
fails to provide information pursuant to Rule 26(a) or (e):
If a party fails to provide information . . . as required
by Rule 26(a) or (e), the party is not allowed to use
that information . . . to supply evidence . . . at a
trial, unless the failure was substantially justified or
is harmless. In addition to or instead of this sanction,
the court, on motion and after giving an opportunity to
be heard: . . . may impose other appropriate sanctions,
including
any
of
the
orders
listed
in
Rule
37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1)(C).
Rule 26(a) governs, amongst other
required disclosures, the parties’ mandatory initial disclosures,
including
documents
bearing
on
computation
documents that may be used to support claims.
26(a).
of
damages
and
Fed. R. Civ. P.
Rule 26(e) provides, in relevant part:
A party who has made a disclosure under Rule 26(a) -- or
who has responded to an interrogatory, request for
production, or request for admission -- must supplement
or correct its disclosure or response: . . . in a timely
manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not
otherwise been made known to the other parties during
the discovery process or in writing[.]
Fed. R. Civ. P. 26(e)(1).
“The moving party bears the burden of
showing that its adversary failed timely to disclose information
required by Rule 26.”
In re Sept. 11th Liab. Ins. Coverage Cases,
243 F.R.D. 114, 125 (S.D.N.Y. 2007).
“To meet this burden, the
moving party must establish ‘(1) that the party having control
over the evidence had an obligation to timely produce it; (2) that
21
the party that failed to timely produce the evidence had a culpable
state of mind; and (3) that the missing evidence is relevant to
the party's claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.’”
Id.
(quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306
F.3d 99, 107 (2d Cir. 2002)).
“The imposition of sanctions under Rule 37(c)(1) is a matter
within the trial court's discretion.”
Johnson Elec. N. Am. Inc.
v. Mabuchi Motor Am. Corp., 77 F. Supp. 2d 446, 458 (S.D.N.Y. 1999)
(citation omitted).
“[R]efusing to admit evidence that was not
disclosed in discovery is a drastic remedy and will apply only in
situations where the failure to disclose represents a flagrant bad
faith and callous disregard of the rules.” Id. (citation omitted).
“Despite the mandatory language of Rule 37(c)(1), the Second
Circuit has held that preclusion is a discretionary remedy, even
if
‘the
trial
court
finds
that
there
is
no
substantial
justification and the failure to disclose is not harmless.’” Nosal
v. Granite Park LLC, 269 F.R.D. 284, 289 (S.D.N.Y. 2010) (quoting
Design Strategy, Inc. v. Davis, 469 F.3d 584, 297 (2d Cir. 2006)).
2.
Application
Defendants have failed to carry their burden of establishing
that preclusion is warranted under Rule 37(c).
As an initial
matter, the Court finds that Defendants are correct that the
exhibits
in
question
should
have
22
been
produced.
Defendants
requested “all photographs . . . depicting the alleged occurrence
[or] showing the alleged damages sustained by Plaintiff.”
Ex. III-A at 8.)
(Def’t
The photographs of Plaintiff’s thumb would
clearly fit into the document request as it is written, and the
Court does not find the language of the request confusing or
otherwise
compliance.
documents
written
in
a
way
that
would
excuse
Plaintiff’s
As to the tax records, Defendants requested “all
supporting
any
claimed
incidental damages or losses.”
expenses,
(Id. at 9.)
consequential
or
Although the tax
returns were not explicitly requested by Defendants, the Court
finds
the
Defendants
requested
and
Plaintiff
provided
authorizations for Plaintiff’s tax returns for five years prior to
the incident up to any including the present time.
Plaintiff
states that he provided authorizations for his tax returns on
multiple occasions.
(Pl. Opp. at 26-27.)
That being said,
Plaintiff’s failure to produce the actual tax returns during
discovery does not end the Court’s inquiry.
In determining whether to order the “drastic remedy” of
refusing to admit evidence is appropriate, the Court looks to
whether Plaintiff’s failure to disclose “represents a flagrant bad
faith and callous disregard of the rules.”
Inc., 77 F. Supp. 2d at 458.
Johnson Elec. N. Am.
The Court does not find any such bad
faith or callous disregard of the rules to be present.
As to the
tax returns, Plaintiff felt that he provided the appropriate IRS
23
authorization for Defendant to acquire them, and there was no need
to produce the tax returns separately.
(See Pl. Opp. at 26-27.)
Regarding the photographs, Plaintiff asserts that the photos are
relevant to showing the condition of Plaintiff’s thumb months and
one year after the incident, but offers no excuse for the failure
to produce them beyond stating that they were “produced immediately
after they were found.”
wish
to
excuse
(Pl. Opp. at 25.)
Plaintiff’s
failure
to
The Court does not
meet
his
discovery
obligations, but it is far from clear that the failures were made
with the requisite “culpable state of mind.”
In re Sept. 11th
Liab. Ins. Coverage Cases, 243 F.R.D. at 125.
As a result, the
Court does not find preclusion to be an appropriate remedy for
Plaintiff’s failure to produce the documents during discovery.
D.
News Media Exhibits
Defendants
seek
to
exclude
two
media
exhibits
regarding
Plaintiff’s injuries – a New York Post article entitled “My $70K
BMW cut off my thumb” and an ABC News video entitled “Long Island
man sues BMW after car's self-closing door severs thumb”.
(Def’t
Mem. at 18.)
Defendants argue that the media evidence constitutes
inadmissible
hearsay,
would
be
cumulative
and
redundant
Plaintiff’s own testimony, and would be overly prejudicial.
at 19.)
exhibits.
to
(Id.
Plaintiff agreed in his opposition to withdraw both
(Pl.
Opp.
at
28.)
Defendants
precluding the media evidence in their reply.
24
request
an
order
(Def’t Reply at 7.)
The Court does not find it necessary to enter an order
excluding the evidence, given Plaintiff’s voluntary decision to
withdraw the exhibits.
E.
Evidence of Other Recalls
Defendants seek to exclude two exhibits on the basis that
they
“concern
a
recall
of
a
different
unrelated issue.”
(Def’t Mem. at 19.)
response
evidence
that
considering
the
the
design
defect
of
the
claims.
vehicle
model
for
an
Plaintiff argues in
recalls
(Pl.
is
relevant
Opp.
at
in
29-32.)
Defendants argue in further support that Plaintiff’s position is
overly broad as it would mean that “any recall relating to the
soft close mechanism should be considered by the jury in deciding
whether the design of that feature is defective.”
7.)
(Def’t Reply at
The Court agrees with Defendants and finds that the exhibits
in question are not relevant, and as such, are not admissible.
“[E]vidence is ‘relevant’ if it has ‘any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.’”
United States v. Abu-Jihaad, 630 F.3d
102, 132 (2d Cir. 2010) (quoting Fed. R. Evid. 401).
Here, the
Court finds that Plaintiff has failed to show that the evidence
surrounding the door recalls is relevant to the instant case.
Specifically, the evidence of recalls that Plaintiff seeks to
introduce relates to instances where “a door failed to remain
25
closed” because the “door release cam permanently opens the release
lever [and the] door does not latch.”
(Ex. V-55 at 2, 4.)
Plaintiff has not alleged that such a defect was present on his
vehicle,
or
that
such
a
defect
contributed
to
his
injury.
Defendants correctly point out that “[t]here is no claim in this
litigation that Mr. Boateng was injured due to his driver’s door
opening.”
(Def’t Mem. at 22.)
As such, the Court does not find
the evidence to be relevant or admissible.
To the extent Plaintiff seeks to introduce the evidence in
support of a broader contention that BMW’s vehicles contained
defects, thus making it more likely that his own SCAD-equipped
door was defective and caused his injury, the Court finds such
evidence would be more prejudicial than probative.
Any use of
evidence in this manner would “confuse the jury as to the true
issue” in the case, as pointed out by Defendants.
22.)
(Def’t Mem. at
Finally, the Court reserves ruling on any attorney-client
privilege asserted by Defendants regarding the recalls because the
evidence will be precluded because it is irrelevant.
F.
Plaintiff’s Demonstrative Videos
Defendants seek to exclude four demonstrative videos of the
Subject Vehicle created by Plaintiff.
(Def’t Mem. at 22-23.)
Defendants argue that the videos constitute non-expert lay witness
testimony which is cumulative of Plaintiff’s expert evidence and
includes audio commentary which is hearsay.
26
(Id. at 23-24.)
Plaintiff argues that the evidence is a permissible way to “show
the jury exactly how the accident happened, rather than Mr. Boateng
doing so in court holding an imaginary BMW X5 vehicle door.”
Opp. at 33.)
(Pl.
The Court finds that, to the extent Plaintiff’s
videos attempt to show “testing” of the SCAD-equipped door, they
are precluded as lay-expert testimony, but that the videos of
Plaintiff showing how he held the door, showing how the SCAD
engaged, and showing the scratch on the door may be admitted.
Pursuant to Fed. R. Evid. 702, “[a] witness who is qualified
as
an
expert
by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or otherwise if
the proponent demonstrates to the court that it is more likely
than not that: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert’s opinion
reflects a reliable application of the principles and methods to
the facts of the case.”
Here, it is clear that Exhibits VI-124
and VI-125 go beyond the bounds of acceptable lay witness testimony
and veer into terrain reserved for expert witnesses.
This is
precisely because Plaintiff plans to introduce expert testimony
from Dr. Pugh showing his own testing of the Subject Vehicle.
In
this case, Plaintiff cannot have it both ways – he cannot offer
27
both expert and non-expert testing of the same type on the same
door.
For this reason, the Court finds that Exhibits VI-124 and
VI-125 are inadmissible.
The Court does not find that Exhibits VI-126 and VI-127
constitute improper lay-expert testimony, however.
These videos
show Plaintiff “exiting the [S]ubject [V]ehicle and holding the
driver’s side door in the same manner as he did when he was injured
on July 6, 2016” along with the “noticeable scratch mark indented”
in the Subject Vehicle after the incident.
(Pl. Opp. at 33.)
As
previously discussed, photographs and videotapes are “admissible
in evidence if helpful to the trier of fact's understanding of a
fact of consequence in the litigation.”
Michael H. Graham, 2
Handbook of Fed. Evid. § 401:7 (9th ed. 2023).
The two videos in
question concern facts relevant to the central issue in the case
– how Plaintiff was positioned in relation to the door when it
closed, and the force with which the door closed on his thumb- and
as
such,
constitute
information.
proper
evidence
that
provides
relevant
The Court adopts Plaintiff’s suggestion that the
audio be redacted from the exhibits prior to trial, so as to avoid
any potential hearsay problems, however Plaintiff may authenticate
the videos to explain the context.
Accordingly, Exhibits VI-126
and VI-127 may be introduced with the audio removed, and Exhibits
VI-124 and VI-125 are deemed inadmissible.
28
II.
Plaintiff’s Motions
Plaintiff has filed two separate motions in limine seeking to
exclude: (i) any suggestions at trial that Mr. Boateng’s injuries
were caused by his closing the door on his own thumb alone rather
than through the activation of the SCAD functionality; and (ii)
evidence that BMW is in compliance with Federal Motor Vehicle
Safety Standard (“FMVSS”) No. 206, regarding a door’s primary door
latch system.
The Court will consider each category of exclusions
in turn.
A.
Evidence of External Forces
Plaintiff seeks to “exclude any inferences at trial by the
Defendants that Godwin Boateng’s injuries were caused as the result
of closing the door on his own thumb rather than through the
activation of Soft-Close Automatic Doors (‘SCAD’).”
(ECF No. 150,
Plaintiff’s Memorandum of Law in Support of Motion in Limine #1
(“Pl Mem. No. 1”), at 5.)
motion
seeks
“seeks
to
Defendants opposition asserts that the
eliminate
one
of
Defendants’
primary
defenses and their experts’ theory of how the accident probably
occurred.”
(ECF No. 151, Defendants’ Response in Opposition
(“Def’t Opp.”), at 2.)
Plaintiff argues in further support that
Defendants’ theory “would be confusing and wholly irrelevant” to
the jury.
(ECF No. 152, Plaintiff’s Reply in Further Support of
Motion in Limine No. 1 (“Pl. Reply No. 1”), at 3.)
Plaintiff’s
request
is
overly broad
29
and
would
The Court finds
unnecessarily
intrude on the factfinder’s role in the instant case to weigh and
analyze
the
parties’
Plaintiff’s injury.
1.
competing
theories
of
causation
of
As such, Plaintiff’s motion is denied.
Legal Principles
“Evidence is relevant if ‘it has any tendency to make a fact
more or less probable than it would be without the evidence’ and
if ‘the fact is of consequence in determining the action.’” United
States v. Monsalvatge, 850 F.3d 483, 494 (2d Cir. 2017) (quoting
Fed. R. Evid. 401).
be relevant.”
“Evidence need not be conclusive in order to
Id. (quoting United States v. Schultz, 333 F.3d
393, 416 (2d Cir. 2003)).
“A district court ‘may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.’”
Evid. 403).
Id. (quoting Fed. R.
In reviewing a district court’s Rule 403 rulings, the
Second Circuit “generally maximize[s] the evidence's probative
value and minimize[s] its prejudicial value.”
Id. (internal
quotation marks and citation omitted).
Separately, under Fed. R. Evid. 702, expert testimony is
admissible where: “(a) the expert's scientific, technical, or
other
specialized
knowledge
will
help
the
trier
of
fact
to
understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony
30
is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts
of the case.”
Id.
“To determine whether a proposed expert's
testimony passes muster under Rule 702, this Court must inquire
into: (1) the qualifications of the proposed expert; (2) whether
each proposed opinion is based on reliable data and reliable
methodology; and (3) whether the proposed testimony would be
helpful to the trier of fact.”
S.E.C. v. Tourre, 950 F. Supp. 2d
666, 674 (S.D.N.Y. 2013) (citing Nimely v. City of New York, 414
F.3d 381, 396–97 (2d Cir. 2005)).
Under Fed. R. Evid. 703, “[a]n expert may base an opinion on
facts or data in the case that the expert has been made aware of
or personally observed.”
Id.
The Second Circuit has held that
“expert witnesses can testify to opinions based on hearsay or other
inadmissible evidence if experts in the field reasonably rely on
such
evidence
in
forming
their
opinions.”
United
States
v.
Dukagjini, 326 F.3d 45, 57 (2d Cir. 2003) (internal quotation marks
and citation omitted); see also Fed. R. Evid. 703 (“If experts in
the particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.”).
2.
Application
Plaintiff argues that evidence of injuries from non-SCAD
equipped doors is irrelevant, misleading, and “will cause a great
31
deal of confusion for the jury at trial.”
(Pl. Mem. No. 1 at 5.)
Furthermore, Plaintiff argues that certain reports upon which
Defendants’
experts
may
rely
basis” and should be precluded.
“lack[]
(Id.)
a
sufficient
scientific
The Court is not persuaded
by Plaintiff’s arguments, which appear to attempt to foreclose
Defendants from offering an alternative theory for the injury.
As a starting point, the Court finds that evidence offered by
Defendants which would suggest Plaintiff’s injury was caused by
the force with which his own body closed the door, as opposed to
the SCAD mechanism, is relevant to the instant case. Such evidence
would be relevant to whether a product defect caused Plaintiff’s
injury, a central issue in the case.
Thus, just as this Court
found it appropriate to allow evidence of other similar incidents
involving SCAD-equipped doors, it would be inappropriate at this
juncture to foreclose Defendants from offering evidence suggesting
Plaintiff’s incident would be possible on a non-SCAD-equipped
door.
The Court is not persuaded that such evidence would confuse
a jury, which could understand the competing theories of the
accident being advanced by the two sides.
Ultimately, the Court
agrees with Defendants that even if “Plaintiff's case may be harmed
by reference to the evidence at issue . . . such harm is not the
‘unfair’ prejudice that Federal Rule of Evidence 403 is intended
to protect against.”
Spencer v. Int'l Shoppes, Inc., No. 06-CV-
2637 (AKT), 2013 WL 685453, at *3 (E.D.N.Y. Feb. 25, 2013).
32
Therefore, the Court declines to provide the broad exclusion sought
by Plaintiff.
The Court is also not persuaded by Plaintiff’s arguments that
certain portions of Defendants’ expert witness testimony should be
excluded.
Plaintiff argues that NHTSA data regarding reports of
car door injuries should be excluded from expert testimony as it
provides
“insufficient
(Pl. Mem. No. 1 at 8.)
and
unreliable
evidence
of
causation.”
However, the case law cited by Plaintiff
primarily deals with causation in a medical or epidemiological
context (specifically medical “case reports”), far removed from
the present situation.
Should Defendants’ expert opine that SCAD-
equipped doors have contributed to a gradual decrease in doorrelated
injuries
over
time,
Plaintiff
is
free
to
offer
an
alternative theory, or question the reliability of the data, as he
did during prior depositions.
(Id. at 6.)
Ultimately, just as
Plaintiff will be allowed to advance his own theory of how the
injury was caused, including through video demonstrations and
expert testimony, Defendants will be allowed to offer their own
theory along with admissible evidence in support. 5
The Court notes that this issue was discussed in the earlier ruling declining
to grant summary judgment for Defendants on the design defect claim, and the
Court concluded that “[t]he factual question of whether and how Mr. Boateng may
have moved the door of the Subject Vehicle from the outer latch to the secondary
latch, thereby activating the SCAD, remains. The Court finds that these factual
questions are best reserved for a jury.” Boateng v. Bayerische Motoren Werke
Aktiengesellschaft, No. 17-CV-209 (KAM) (SIL), 2022 WL 4357555, at *15 (E.D.N.Y.
Sept. 20, 2022).
5
33
B.
Evidence of Compliance with FMVSS No. 206
Plaintiff seeks in his second motion in limine to exclude
“documents associated with Federal Motor Vehicle Safety Standard
No. 206 (‘FMVSS No. 206’)” on the grounds that they are irrelevant,
as “[t]he purpose of Standard 206 is to minimize the likelihood of
occupants being thrown from a vehicle as a result of an impact.”
(ECF No. 153, Plaintiff’s Memorandum of Law in Support of Motion
in Limine #2 (“Pl Mem. No. 2”), at 4-5.)
Defendants argue in
response that “[i]n a design case, such standards are typically
admissible to show compliance of the design to the industry and to
the state of the art, both of which are factors that juries may
consider.” (Def’t Opp. at 7.) Plaintiff argues in further support
that “SCAD is never discussed in FMVSS No. 206” and that although
the standard applies to the Subject Vehicle, that is “equally true
for the other 153 FMVSS standards.”
(ECF No. 155, Plaintiff’s
Reply in Further Support of Motion in Limine No. 2 (“Pl. Reply No.
2”), at 3.)
The Court agrees with Plaintiff that evidence of
compliance with FMVSS No. 206 does not appear to be relevant in
determining any fact material to a claim or defense in this action,
and as such, is not admissible.
However, the Court may modify
this ruling if Defendants’ compliance with Federal Motor Vehicle
Safety Standards is put into issue by Plaintiff.
FMVSS No. 206, codified at 49 C.F.R. § 571.206, “specifies
requirements for vehicle door locks and door retention components,
34
including latches, hinges, and other supporting means, to minimize
the likelihood of occupants being ejected from a vehicle as a
result of impact.”
Id.
As noted by Plaintiff, no references to
“automatic” door closing systems are included in the standard.
Instead, the standard is primarily concerned with the load and
force that a door’s primary and auxiliary door latch systems can
sustain prior to separating.
Id.
As explained in the “Scope and
Purpose” section of the standard noted above, this is to minimize
the chance of vehicle occupants being “ejected from a vehicle as
a result of impact.”
The Court finds no special relevance to BMW’s
asserted compliance with this standard for the instant action,
which concerns an injury resulting from the closure of a SCADequipped door.
For the same reason that the Court declined to
allow Plaintiff to introduce evidence of unrelated recalls, the
Court similarly declines to allow Defendants to introduce evidence
of compliance with unrelated standards.
The Court does not find applicable the case law Defendants
cites suggesting that “compliance with regulatory requirements
under 49 CFR § 571 [is] relevant.”
See, e.g., Contini v. Hyundai
Motor Co., 840 F. Supp. 22, 23 (S.D.N.Y. 1993).
In Contini, a
seat belt failed to restrain an occupant of the front seat,
directly implicating the standard for seat belt assemblies which
“were required to be designed to be capable of restraining a
passenger.”
Id. at 24.
Similarly, Murphy v. Nissan Motor Corp.
35
in U.S.A., 650 F. Supp. 922 (E.D.N.Y. 1987), dealt with a failure
of a seatbelt system while a passenger’s seat was fully reclined,
directly
implicating
restraints.”
“safety
Id. at 924.
standard
relating
to
passenger
The Court finds the cases to be
distinguishable from the instant case, in which no standard appears
to be directly related to the SCAD defect alleged by Plaintiff.
This ruling may be revisited if Plaintiff places into issue
Defendants’ compliance with the specific statutory or regulatory
requirements at issue in Plaintiff’s motion.
See, e.g., United
States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) (discussing the
doctrine of “curative admissibility”).
Plaintiff’s
position
to
be
that
“no
The Court understands
federal
standard
[is]
applicable to an automatic closing door,” and bases this ruling on
that position, in part.
Thus, although evidence of compliance
with FMVSS No. 206 is deemed irrelevant and inadmissible, the
Court’s ruling may subsequently change based on the arguments
advanced by Plaintiff at trial.
CONCLUSION
For the reasons stated above, the Court finds that:
•
Defendants’ motion to exclude evidence of “other dissimilar
incidents” is GRANTED in part and DENIED in part.
Discussion Section I.A.2.)
(See supra
Exhibits I-38, I-39, I-40, I-41,
I-42, I-43, I-44, I-45, I-46, I-47, I-48, I-49, I-50, I-51,
I-52, I-60, I-61, I-62, I-64 (a duplicate of I-60), I-81 (a
36
duplicate of I-42), I-108, I-109, I-110, I-111, I-112, I-113,
I-114, I-115, and I-116 are inadmissible, except in summary
form, as discussed supra.
Exhibits I-54 and I-99 through I-
107 may be admitted subject to the limitations described
further supra.
•
Defendants’
motion
injury is DENIED.
to
exclude
photographs
of
Plaintiff’s
(See supra Discussion Section I.B.2.)
Exhibits II-1 through II-6 are admissible.
•
Defendants’
motion
discovery is DENIED.
to
exclude
evidence
not
produced
in
(See supra Discussion Section I.C.2.)
Exhibits III-7 through III-11 and III-21 through III-29 are
admissible.
•
The Court DENIES as moot Defendants’ motion to exclude news
media coverage in light of Plaintiff’s withdrawal of the
exhibits.
•
(See supra Discussion Section I.D.)
Defendants’ motion to exclude evidence of unrelated recalls
is GRANTED.
(See supra Discussion Section I.E.)
Exhibits V-
55 and V-66 are deemed inadmissible.
•
Defendant’s
motion
to
exclude
Plaintiff’s
demonstrative
videos of the Subject Vehicle is GRANTED in part and DENIED
in part.
(See supra Discussion Section I.F.)
124 and VI-125 are deemed inadmissible.
VI-127
may
be
admitted
in
37
modified
Exhibits VI-
Exhibits VI-126 and
form
with
the
audio
removed, however, Plaintiff may lay a foundation for the
exhibits.
•
Plaintiff’s
first
suggesting
external
DENIED.
•
motion
in
forces
limine
caused
to
exclude
Plaintiff’s
evidence
injury
is
(See supra Discussion Section II.A.2.)
Plaintiff’s second motion in limine to exclude evidence of
Defendants’ compliance with FMVSS No. 206 is GRANTED.
(See
supra Discussion Section II.B.)
SO ORDERED
Dated:
April 8, 2024
Brooklyn, New York
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
38
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