Great Northern Insurance Company et al v. Brentlinger Enterprises et al

Filing 100

ORDER denying 78 Motion for Summary Judgment, denying 77 motion in limine, denying 83 motion to strike. Signed by Judge Algenon L. Marbley on 2/4/2015. (cw) Modified on 2/4/2015 (cw).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GREAT NORTHERN INSURANCE
COMPANY, et al.,
Plaintiffs,
v.
BMW OF NORTH AMERICA LLC,
et al.,
Defendants.

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Case No. 2:11-CV-1153
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on Defendants’, BMW of North America LLC (“BMW
NA”) and Bayerische Motoren Werke AG (“BMW AG”) (collectively “Defendants”), Motion
for Summary Judgment as to Plaintiffs’, Great Northern Insurance Company and Pacific
Indemnity Insurance (collectively “Plaintiffs”), claims for: (1) breach of implied warranty
against both Defendants (Count IV); (2) product liability under the Ohio Product Liability Act
(“OPLA”) against manufacturer, BMW AG (Count III); and, (3) product liability under OPLA
against supplier, BMW NA (Count II).1 (Doc. 78). Defendants incorporate their Motion in
Limine to Exclude the Testimony of Richard A. Clarke into this Motion. (Doc. 77). Finally,
Plaintiffs incorporate their Motion to Strike Affidavits of Thomas Slaba and Richard Keefer
submitted by Defendants in support of their Motion for Summary Judgment. (Doc. 83).

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Plaintiffs’ First Claim in their Complaint is a negligence claim against only Defendant
Brentlinger Enterprises, and not a claim against Defendants bringing this Motion for Summary
Judgment.
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I. BACKGROUND
A. FACTUAL BACKGROUND
1. Vehicle use and fire
On May 30, 2007, Jean Patrick leased a new BMW 328xi (the “vehicle”). BMW AG
designed and manufactured the vehicle. BMW NA played no role in the design or manufacture
of the vehicle, but merely distributed the vehicle.
Ms. Patrick drove the vehicle for three years without any problems. She maintained the
vehicle in accordance with BMW standards, generally kept the vehicle in the garage, never
stored the vehicle in a place where substantial debris could accumulate, and drove the vehicle
regularly. On March 16, 2010, Ms. Patrick parked the vehicle in the garage attached to her home,
which is in a wooded area, and noticed smoke emanating from the vehicle’s hood. A few minutes
later, a fire that started in the vehicle spread to the Patrick’s residence and belongings. As a result
of the fire, the Patricks lost their car, their home was uninhabitable, and they incurred extra
expenses associated with moving and living in an alternative rental property while repairs were
being made to their home. Plaintiffs reimbursed the Patricks under their automobile and
homeowners’ insurance policy for the damage and costs arising from the vehicle fire
($1,329,999.90 for the residence damage and associated costs of repair and lodging, and
$30,791.39 for the BMW). Plaintiffs then filed this subrogation lawsuit against Defendants.
All of the experts and the local investigating fire officials in this case have concluded that
the fire originated within the BMW. Further, all experts agree that the fire was caused by an
accumulation of leaves and other organic material in an area of approximately one to two inches
between the stiffener plate and the heated components of the exhaust system. The stiffener plate
is a solid piece of aluminum connected to the underside of the vehicle attached with six bolts and

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located in the center of the front axle. Its purpose is to provide stability and strength on the allwheel drive BMW E90 vehicles, and protect the underside of the engine from damage. The
stiffener plate is installed only on the four-wheel drive BMW E90 vehicles, but is not present on
the two-wheel drive E90 vehicles. What parties’ experts contest is how the debris accumulated in
the location in the engine compartment where it ignited, and whether there is any design defect
in the vehicle.
2. Plaintiffs’ theory
On March 17, 2010, Plaintiffs retained Kevin Keaton of S-E-A Ltd. (“SEA”) to
investigate the origins and causes of the fire. The SEA expert concluded that the fire originated
in the engine compartment of the vehicle; that it was a result of the accumulation of combustible
material (foliage) on an area of a heat shield or cross member positioned under the exhaust
piping on the right side of the engine compartment; that the temperature measurements on an
exemplar 2007 BMW 328xi exhaust system resulted in temperatures of about 600°F, which is
greater than the minimum ignition temperature of 554°F mentioned in the National Institute of
Standards and Technology; the competent ignition scenario was a hot surface ignition of the
foliage by the vehicle’s exhaust components; the vehicle was operated daily and positioned
within the garage when not in use; the foliage was examined and found to contain no rodent
activity; and all other competent ignition sources were eliminated as being causal to the fire.
(Doc. 81-1).
Keaton’s report states that upon examining an exemplar vehicle, he concluded that “the
heat shield positioned in this area was found to have flat areas…which would allow for debris to
accumulate from openings in the area of the adjacent wheel well….” Id. at 26. At his deposition,
Keaton states that “debris entered the vehicle through the openings in the vehicle—through the

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bottom openings of the vehicle and possibly through the wheel well openings in the vehicle.”
(Keaton Deposition, Doc. 76 at 80-81).
Plaintiffs also offer expert testimony of Richard Clarke, a consulting engineer who
provides technical expertise on engineering investigations of failed automobile components. In
his September 26, 2013 report, Clarke offered the following opinions based on his review of both
the vehicle and an exemplar vehicle of the same make and model, the file information,
photographs of the vehicles at the loss site, and the analysis of the fire patterns:

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



The fire was due to the ingress of leafs and pine needles being trapped in the area of the
catalytic converters and the exhaust down pipes.
This entrapment of combustible materials was due to the placement and design of the
Lower Stiffening Plate.
Material of this nature which is dry becomes very combustible when in close proximity to
the catalytic converter and exhaust down pipes which is at normal operating temperature
after the car has been driven for ten to fifteen minutes. Once combustion has started,
combustible material in the immediate area would then be consumed.
The lower stiffening plate is defective as it allows entrapment of combustible materials to
build up in close proximity to the catalytic converter and exhaust down pipes. This defect
was the cause of the fire.
A safer alternative designed Lower Stiffening Frame with openings for egress and ingress
and with edges that would avoid the accumulation of any combustibles and would have
prevented such an entrapment of the combustible materials, such as the prototype Clarke
designed and manufactured.
The benefits of his alternative design outweigh fire risks inherent in the design, especially
since a reasonable alternative design is feasible.

(Report of Richard Clarke, Doc.77-7).
In terms of his theory of how debris entered the area where the fire began, Clarke
testified in his deposition that debris could have entered via a direct and unobstructed air path
through the NACA duct, which is located less than a foot from the stiffener plate and exhaust
system. According to Clarke, the purpose of the NACA duct is to introduce outside air to cool
the engine and exhaust system. Mr. Clarke also testified that debris that naturally accumulates on
the hood could directly drop down along side of the engine and onto the stiffener plate. (Doc. 813). Mr. Clarke further opined that his review of other comparable vehicles, including the newer
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F30 all-wheel drive BMW, showed that the design of body protection systems similar to the
vehicle’s stiffener plate had holes in them, and therefore were much more conducive to
permitting any debris that was drawn onto the stiffener plate to “self-clean.”
3. Defendants’ Theory
Defendants state that it was impossible for debris to collect on the stiffener plate in the
manner Clarke opines because the hood of the vehicle is completely sealed. Instead, Defendants
argue that debris collected on the stiffener plate area due to a fox squirrel nesting in the vehicle
around the time the fire occurred. This theory originates from the final inspection of the vehicle
on November 1, 2013. During the inspection, SEA personnel lifted the vehicle with a forklift to
allow under-vehicle inspection. The forklift fractured an under-vehicle body cover that had not
been removed previously. When the cover fractured, the remains of a rodent fell out, which
consisted of some hair and bones.
Dr. Robert Gates, Defendants’ expert, examined the material collected at a joint May 5,
2010 inspection and compared it with the rodent remains discovered at the November 1, 2013
inspection. Dr. Gates discovered a bi-colored, mammal hair in the debris collected at the May 5,
2010 inspection. He concluded that the hair and bones collected at the November 1, 2013
inspection appeared to be the partial remains of a fox squirrel and that the hair was bi-colored,
like the hair found in the materials from the May 5, 2010 inspection. He concluded that SEA’s
conclusion that rodent activity was not a factor in the case of debris accumulation was incorrect,
and that the materials ignited by the exhaust components of the vehicle were likely deposited
adjacent to the exhaust system by the fox squirrel whose remains were found on November 1,
2013. (Report of Dr. Robert Gates, Doc. 81-4).

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4. Plaintiff’s Rebuttal
In rebuttal of Defendants’ rodent theory, Plaintiffs offer the report of Dr. Michael Steele,
an expert on the ecology and behavior of tree squirrels, to maintain their position that the
evidence examined by SEA and the BMW experts in 2010 did not show any nesting created by
rodents. (Report of Michael Steele, Doc. 81-5). Steele’s report concludes that it is more likely
than not that the fox squirrel whose remains were found on November 1, 2013 inhabited the
vehicle after it was stored, outside, at the SEA facility. The report states specifically that: it was
unlikely for a squirrel to build a nest in close proximity to a heated exhaust system capable of
generating temperatures in the 600°F to 700°F range; the confined area above the stiffener plate
where the fire began is inadequate space for a nesting fox squirrel; the debris found above the
stiffener plate contained material that is not typical of the nest of a fox squirrel; it is highly
unlikely that a fox squirrel would enter a garage and colonize a vehicle that is in regular use
(squirrels nest at much higher points, and in more stable structures); it is unlikely that a fox
squirrel would remain in a vehicle after the fire began; it is more likely that a fox squirrel would
inhabit a vehicle stored outside that is not operational; and, it is more likely than not that the
presence of maggots found in the partial remains are indicative of a squirrel which had not been
dead since March, 2010.
5. Richard Clarke’s Qualifications
Clarke has a four-year Automotive Engineering Degree from Yarmouth Technical
College in London, England. He is not a licensed engineer. Clark states that he is failure mode
and maintenance expert in the automotive field. (Clarke Deposition, Doc. 70 at 8). As a failure
more analyst he investigates fire origin and causation, assesses foreseeability of component
failure, and recommends potential fixes for identified problems. Id.

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Clarke does not hold himself out as a design engineer. Id. at 8-9, 73. He has never
designed under engine covers like the under engine cover that is on the BMW 328xi. Id. He
states in his deposition and his affidavit, however, that he has been involved in the design of
support plates and other frame materials for General Motors and the Lotus Racing team. (Id. at
10, Doc. 81-6 at ¶ 8).
In terms of his work history, from 1978-1982, Clark worked as an apprentice motor
vehicle technician for BMW. From 1982-1985, he worked as a vehicle technician for Mercedes
Benz and Lotus. Id. at 16-20. From 1985-1987 Clarke worked as a development engineer for
Lotus, where he worked on a team developing hydraulic active suspension components for
various manufacturers. Id. at 21-28. Specifically, he helped design support brackets used to
install the suspension system on vehicles. Id. at 10, 26-7.
From 1987-1996 Clarke worked as a National Field Service Engineer for Lotus in the
United States. Id. at 29. There, he conducted tested vehicles to determine whether they met
vehicle standards, proposed design changes, but did not actually design components. Id. at 29-49.
From 1996 to the present Clarke has been engaged as a Consulting Engineer providing technical
expertise on engineering investigations of failed and accident-related components. He has been
involved in over 100 vehicle fire investigations. Clarke worked extensively with the National
Highway Traffic Safety Administration in order to identify a defect in a Ford Motor Company
component that caused fires; he played a pivotal role in proposing two alternative designs, one of
which was used by Ford.
He has not received any formal education with regard to vehicle aerodynamics. Id. at 49.
Clarke states that in the course of his career he has learned about aerodynamic issues with

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respect to airflow and vehicles, particularly when working for the Formula 1 Race Team. (Id. at
47-9, Doc. 81-6 at ¶11).
B. Procedural Background
Plaintiffs filed their Complaint on December 28, 2011. On May 30, 2014 Defendants
filed their Motion in Limine to Exclude the Testimony of Richard Clarke, (Doc. 77), and their
Motion for Summary Judgment on all claims against the BMW Defendants. (Doc. 78). On July
3, 2014, Plaintiffs filed their motion to Strike Affidavits of Thomas Slaba and Richard Keefer
attached to Defendants’ Motion for Summary Judgment. (Doc. 83). All three motions have been
fully briefed and, therefore, are ripe for review.
III. ANALYSIS
A. Motion to Exclude Testimony of Richard Clarke
This Court first addresses Defendants’ motion to exclude the expert testimony of Richard
Clarke. (Doc. 77). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based on
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Defendants argue that Clarke is not a design engineer, and thus is not qualified to: (1) opine on
whether there is a design defect in the vehicle; or (2) offer an alleged safer alternative design.
Defendants further offer that Clarke’s conclusions are not reliable as they do not meet the
Daubert reliability factors, and are not relevant because they ignore evidence in the record.

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1. Legal Standard
Under Rule 702, an expert’s opinion is admissible, by the discretion of the trial court, if:
(1) the expert is qualified as such by knowledge, skill, experience, training, or education; (2) the
testimony is relevant, meaning it will assist the trier of fact to understand the evidence or to
determine a fact in issue; and (3) the testimony is reliable, meaning it is based on sufficient facts
or data, is the product of reliable principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case. In re Scrap Metal Antitrust Litig., 527
F.3d 517, 528-29 (6th Cir. 2008).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that while the
evaluation of expert testimony is generally left to juries, district courts must serve in a
“gatekeeping” capacity, “ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” 509 U.S. 579, 597-98 (1993). Daubert set forth a nonexclusive check-list for assessing the reliability of scientific expert testimony: (1) whether the
theory or methodology has been or can be tested; (2) whether it has been subjected to peer
review; (3) whether it has a known or potential rate of error; and (4) whether it has been
generally accepted in the scientific community. Id. at 593-94.
In Kumho Tire Co. v. Carmichael, the Supreme Court clarified that the reliability inquiry
Daubert outlined covers not just scientific testimony, but also expert testimony based on—in the
language of Rule 702—“technical” and “other specialized knowledge.” 526 U.S. 137 (1999). In
Kumho the Supreme Court also recognized, however, that the Daubert factors “may or may not
be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150; see Gross v. Comm’r,
272 F.3d 333, 339 (6th Cir. 2001) (explaining that the Daubert factors “are not dispositive in

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every case” and should be applied only “where they are reasonable measures of reliability of
expert testimony”).
This Circuit has held that an expert must utilize in the courtroom the “same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Best v. Lowe’s
Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009) (internal quotation marks omitted).
Determining the admissibility of expert testimony pursuant to Rule 702, however, entails a
flexible inquiry. Daubert, 509 U.S. at 594. The burden on a party proffering expert testimony is
to “show by a preponderance of proof that the expert whose testimony is being offered is
qualified and will testify to scientific knowledge that will assist the trier of fact in understanding
and disposing of relevant issues.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir.
2008) (citing Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.2000)) (internal quotation marks
omitted).
Where the reliability of the evidence is in dispute, it is more appropriate for a judge to
admit the evidence than to keep it from the fact-finder because “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509
U.S. at 596.
2. Clarke’s Qualifications
Initially, a witness must establish his or her expertise by reference to “knowledge, skill,
experience, training, or education” in order to qualify as an expert under Rule 702. Although the
“qualification” element of the Rule 702 analysis “is typically treated liberally, a witness is not an
expert simply because he claims to be.” Rose v. Truck Centers, Inc., 388 F. App'x 528, 533 (6th
Cir. 2010). “The issue with regard to expert testimony is not the qualifications of a witness in the

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abstract, but whether those qualifications provide a foundation for a witness to answer a specific
question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994).
Defendants argue that in a design defect claim, Plaintiffs must offer evidence, through
expert testimony, that the foreseeable risks of the vehicle’s design exceeded the benefits
associated with the design. Further, Defendants argue that the burden is on the Plaintiffs to show
that “a practical and technically feasible alternative design ... would have prevented the harm for
which the claimant seeks to recover....” Ohio Rev.Code § 2307.75(F). In light of these standards
for establishing a design defect claim, Defendants contend that Clarke’s education and
experience do not qualify him to engage in a critical analysis of the risks and benefits associated
with the vehicle’s design, nor to provide testimony on a practical and technically feasible
alternative design of the stiffener plate.
Defendants concede that Clarke is qualified as an expert in Failure Mode Analysis with
respect to vehicle fires, and thus qualified to opine on the cause and origin of fire in the vehicle.
They argue, however, that the origin of fire is not at issue in this case. Instead, they contend that
Clarke’s qualification as a fire analyst is irrelevant to the pending issues in this case including:
(1) the cause of the accumulation of debris; (2) whether the foreseeable risk of the design of the
stiffener plate exceeded the benefits associated with its design; and (3) whether Clarke’s
alternative design of the stiffening plate was practical, technically feasible and would have
prevented the fire. Defendants assert that Clarke’s experience and education are irrelevant to
these design-specific questions because he is not a licensed engineer and neither his experience
nor education includes scientific principles of vehicle design or expertise in vehicle
aerodynamics.

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Plaintiffs respond that Mr. Clarke’s opinion is not that the presence of openings in the
BMW is the defect. Rather, the defect in the vehicle is that debris was naturally permitted to
accumulate in the engine compartment in close proximity to heated surfaces due to the design of
the stiffener plate, which lacks any holes to permit self-cleaning, and which has six protruding
bolts that trap debris. He opines that this is what caused the fire, and that a change in the stiffener
plate would have prevented the fire. Plaintiffs contend that Clarke is qualified to offer these
opinions because he has a four-year degree in Automotive Engineering and has been involved in
the automotive industry since 1982. He has investigated hundreds of vehicle fires in his career, in
which he has evaluated whether conditions in the vehicle constituted a faulty or defective
condition that caused a fire or injury and whether that condition could be remedied feasibly in
order to prevent an accident. Mr. Clarke proposes alternative designs in his current consulting
position, and proposed alternative designs in his previous position as a National Field Service
Engineer for Lotus, for General Motors, and for the Lotus Formula 1 racing team. Further,
Plaintiffs argue that the stiffener plate is not a complex car component that requires
particularized design knowledge, and that his alternative design is already in use in newer
models of the vehicle.
As a basis to exclude Clarke’s testimony, Defendants liken Clarke to a mechanic with no
greater knowledge of mechanical engineering principles than the average juror, and rely on
Sigler v. Am. Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) and Rose v. Truck Centers, Inc.,
611 F. Supp. 2d 745 (N.D. Ohio 2009) aff'd, 388 F. App'x 528 (6th Cir. 2010). Defendants argue
that in both cases, courts excluded mechanics from testifying about vehicle defects and
causation, because they found such conclusions exceeded the scope of the mechanic’s expertise.

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Defendants ignore, however, that the Appellate Court in Rose overturned the district
court’s determination that the mechanic did not qualify as an expert because he lacked the formal
education, training, and experience to offer an opinion regarding whether the steering gear was
defective. Rose v. Truck Centers, Inc., 388 F. App'x 528, 534 (6th Cir. 2010). Instead, the
Appellate Court held that the mechanic was “qualified as an expert since his testimony would
certainly assist the trier of fact in understanding the evidence.” Id. Specifically, the Appellate
Court found that the record showed the mechanic’s experiences gave him specialized knowledge
in the areas of truck mechanics and steering gears and that he understood the process of
torqueing the steering gear bolts and how a misstep could have caused an accident. Id. In
addition, the Appellate Court in Rose noted that in Sigler, the Court had similarly found the
mechanic to be an “expert with regard to analyzing an automobile after an accident,” and only
excluded him as an expert because they “concluded that he lacked the expertise to render opinion
about an airbag defect without physically examining the vehicle, which he had failed to do.” Id.
The Appellate Court in Rose held, accordingly, that the case before them was distinguishable
from Sigler because Plaintiff’s expert had examined the faulty vehicle. Id. The Appellate Court
went on to hold, however, that while the mechanic in the case before them was qualified as an
expert to opine on the steering gear’s malfunction, his opinion was unreliable because his
methods were unreliable—the evidence that he relied upon had been altered and thus could not
reasonably support his expert opinions. Id.
Defendants offer an alternative argument, that even if Clarke is deemed to have sufficient
education or experience in some respects, Rule 702 requires experts to have specialized
knowledge, which Clarke lacks in the area of engine compartment covers, and aerodynamics and
airflow issues. In Newell Rubbermaid, Inc. v. Raymond Corp., the Court held that while a

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witness was a highly educated licensed engineer with board certification in forensic engineering,
and a member of six professional societies, he lacked any specialized knowledge in forklifts, the
product at issue in the case, and could not be identified as an expert in the field of forklifts. No.
5:08-CV-2632, 2010 WL 2643417, at *3 (N.D. Ohio July 1, 2010) aff'd, 676 F.3d 521 (6th Cir.
2012). The Court noted as persuasive in its decision to exclude the witness that the witness had
never designed any component of a forklift, nor consulted with a forklift manufacturer with
respect to the design of a forklift. Id. at 4. In Early v. Toyota Motor Corp., 277 F. App'x 581,
584-87 (6th Cir. 2008), the Court excluded a witness who had a degree in mechanical
engineering, but no license, and also who had no specific experience in automotive design or
manufacturing, or experience in the design or installation of a dust seal, the car component at
issue in that case. Clarke similarly has no engineering license, though he has experience in the
automotive industry, and in assessing defects and recommending designs. He does not, however,
hold himself out to be a design expert.
In response, Plaintiffs present cases to support the argument that the details of Clarke’s
academic qualifications bear on the weight of Clarke’s testimony, not its admissibility. Further,
they argue that his experience in the automotive industry and vehicle fires permit him to testify
on the design issues in this case as they relate to fire cause and prevention, even if he does not
have specialized knowledge of under-engine covers. See Benton v. Ford Motor Co., 492 F. Supp.
2d 874, 876-78 (S.D. Ohio 2007) (holding “where the opposing side has the opportunity to crossexamine an expert regarding his qualifications and where the jury is properly instructed to
determine for itself the weight and credibility to be given to the expert's testimony, an argument
opposing admissibility of the testimony on the grounds that it is outside the witness's area of
expertise must fail.”); see also Williams v. Gen. Motors Corp., No. 1:03-CV-02060, 2007 WL

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3232292, at *1-2 (N.D. Ohio Oct. 30, 2007); Floyd v. Pride Mobility Products Corp., No. 1:05CV-00389, 2007 WL 4404049, at *2-5 (S.D. Ohio Dec. 12, 2007).
In Benton, a vehicle rollover case, the Court found it immaterial that the expert had no
formal education or background in the automotive industry. Id. The Court held that his
experience in accident reconstruction, which entailed an understanding in vehicle design and
dynamics applied to the more than 50 roll-over accidents he has analyzed and the use of the
stability index ratio, qualified him as an expert as to the design issues in this case. Id. In Williams
v. Gen. Motors Corp., No. 1:03-CV-02060, 2007 WL 3232292, at *1-2 (N.D. Ohio Oct. 30,
2007), the Court rejected arguments that an expert was not qualified to testify on fuel system
design because he was not a licensed engineer, and had no specific expertise in fuel system
design for medium-duty trucks, the area of his proposed testimony. The Williams Court found
that the proposed expert was experienced in various areas of the automotive industry and
mechanics, and had post-graduate study in Industrial Design and Technology and a
specialization in Automotive Technology. Further, he had been accepted by various courts as an
expert, including one where he testified on the same vehicle component that was at issue in the
case. Finally, in Floyd v. Pride Mobility Products Corp., No. 1:05-CV-00389, 2007 WL
4404049, at *2-5 (S.D. Ohio Dec. 12, 2007), the Court relied on Benton to hold that an expert
could opine on alternative designs of scooters—even though he was not involved in the scooter
industry and had no design background—because the expert relied on experience and sufficient
data related to accident scene.
Like in Rose, this Court agrees that “Rule 702 should be broadly interpreted on the basis
of whether the use of expert testimony will assist the trier of fact.” 388 F. App'x at 534 (citing
Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 919 (6th Cir.1984)). Clarke is a thirty-two year

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veteran of the automotive industry, qualified to offer opinions about causation, prevention and
design as it relates to fire cause and prevention. As such this Court finds Clarke’s opinions will
assist the trier of fact. The scope of his expertise in vehicle design and engineering may cut
against the weight of his testimony regarding the vehicle defect and an alternative design, but not
its admissibility.
Unlike the expert in Newell, who had no background in the forklift industry, Clarke has a
range of experiences in vehicle mechanics and design, including some experiential background
in aerodynamics, and extensive experience in assessing car defects as it relates to fire defects,
and prevention. Further, like in Benton, while Clarke does not have a design degree, his
experience in investigating hundreds of vehicle fires, and in analyzing car defects and
recommending alternatives in his current position as a consulting engineer and in his previous
position as National Field Service Engineer for Lotus, qualify him to conclude the origin of a fire
and how the vehicle could have been modified to prevent such a fire. Even if his qualifications
arguably fall short of his ability to testify on the feasibility and risks versus benefits of his
stiffener plate design, there is no need for him to theorize because he offers testimony that his
alternative design is already in use by BMW’s newer models of the vehicle. See Simo v.
Mitsubishi Motors N. Am., Inc., 245 F. App'x 295, 299-300 (4th Cir. 2007) (finding that there
was no need to determine whether expert witness qualified to testify regarding an alternative car
design to remedy risk of rollover because the expert testified that a feasible alternative design
was already on the market). Lastly, the Court follows the rationale in William and Floyd, that
under the facts of this case, Clarke need not have specialized knowledge of the exact component
at issue, the stiffener plate, in order to make conclusions that assist the trier of fact. Clarke’s

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experience in the automotive industry and his observations of the vehicle and exemplar vehicles
provide a sufficient foundation for him to opine on the vehicle defect and an alternative design.
3. Reliability of Clarke’s Conclusions
Next, this Court must analyze whether the evidence offered by Clarke rests on reliable
reasoning and methodology. Although the test of reliability is “flexible,” and there is no
“definitive checklist or test,” Daubert did set forth factors to consult when evaluating the
reliability of expert testimony, including: testing, peer review, publication, error rates, the
existence and maintenance of standards controlling the technique’s operation, and general
acceptance in the relevant scientific community. Kumho, 526 U.S. at 150 (citing Daubert, 509
U.S. at 593-94). The Daubert factors “are not dispositive in every case” and should be applied
only “where they are reasonable measures of the reliability of expert testimony.” In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (citing Gross v. Comm’r, 272 F.3d 333,
339 (6th Cir.2001)).
Defendants argue that Clarke’s analysis of the vehicle fire, which was limited to
inspecting the vehicle in question, and inspecting an exemplar 2009 BMW 328xi, is not
sufficient to support his conclusions regarding the alleged vehicle defect and his proposed
alternative design. He did not test his theory that the vehicle’s aerodynamics or airflow permit
debris to enter through openings in the hood, through NACA ducts, or through any other way
during normal use of the vehicle. Further, Clarke is not specific about which openings allegedly
allowed in the debris. (Doc. 70 at 95-96). In addition, Clarke did not identify any other fires in
similar vehicles attributable to the alleged defect, nor did he conduct testing or analysis to
determine whether all 2007 BMW 328xi’s are similarly defective.

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As to the feasibility of Clarke’s alternative design of the stiffener place, Defendants argue
that Clarke has not tested his design’s strength, structural integrity, aerodynamic properties, or its
airflow properties. Defendants contend that Clarke’s design, which he labeled “primitive,”
ignores the benefits associated with the stiffener plate as designed, including: controlling noise
emissions, reducing drag, and making the car more fuel efficient. Defendants contend that the
scientific community would not accept a non-engineer offering an aerodynamic design change to
a vehicle without applying engineering principles. Also, Defendants argue that Clarke developed
this design and his theory about the stiffener plate for the purposes of litigation. Finally, Clarke’s
theory about the risk of debris fires due to the construction of stiffener plates, as well as his
alternative design, have not been subject to peer review or validation, or the subject of any other
publication to Defendants’ knowledge.
Plaintiffs respond that the design issues in this case are simple, considering the stiffener
plate is a solid piece of aluminum connected to the underside of the vehicle. Relying on Nemir v.
Mitsubishi Motor Sales of Am., Inc., 6 F. App'x 266 (6th Cir. 2001), Plaintiffs argue that Clarke’s
opinions are derived from inferences based on a scientific method and that those inferences are
derived from the facts of the case. Id. (holding that Daubert requires “only that the expert
testimony be derived from inferences based on a scientific method and that those inferences be
derived from the facts of the case at hand ... not that they know the answers to all the questions a
case presents-even to the most fundamental questions.”). Plaintiffs contend that Clarke utilized
the scientific method when he concluded that the design defect was the position and construction
of the stiffener plate. First, Clarke considered that all post-fire examination of the vehicle found
that organic debris wedged in the area of the stiffener plate and next to the exhaust system was
the cause of the fire. Next, testing performed by Plaintiffs’ expert, Keaton, confirmed that the

18

temperatures generated in the exhaust system were sufficient to ignite that material. After that,
Clarke inspected the vehicle and determined that the debris got trapped in the area between the
stiffener plate and exhaust component because the stiffener plate had no openings and had
protruding bolts where debris likely got stuck. Finally, he considered the design of the vehicle
and examined two exemplars that had holes in the stiffener plate.
Relying on Nemir, Plaintiffs contend that although two competing theories exist as to
how the debris got lodged on the stiffener plate, the determination of which theory is more
credible is a question for the jury. Id. at 275 (holding that when possibilities besides those
offered by experts exist with regards to causation, the “fact that several possible causes might
remain ‘uneliminated’... only goes to the accuracy of the conclusion, not the soundness of the
methodology”). Further, Plaintiffs state that Clarke offered the opinion that the risk of fire
inherent in the design of the stiffener plate outweighed any benefits that the stiffener plate offers,
considering the serious consequences of a vehicle fire. In addition, Plaintiffs offer ample cases
showing this Circuit has held consistently that an expert’s failure to perform his own independent
tests or studies of his alternative design or theories goes to the weight of his testimony, not to its
admissibility.
This Court finds that Clarke’s methodology in assessing the defect and proposing an
alternative design was sufficiently reliable considering the facts of the case. As the Court stated
in Kumho:
Experts of all kinds tie observations to conclusions through the use of what Judge
Learned Hand called “general truths derived from ... specialized experience.” Hand,
Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev.
40, 54 (1901). And whether the specific expert testimony focuses upon specialized
observations, the specialized translation of those observations into theory, a specialized
theory itself, or the application of such a theory in a particular case, the expert's
testimony often will rest “upon an experience confessedly foreign in kind to [the jury's]
own.” Ibid. The trial judge's effort to assure that the specialized testimony is reliable
19

and relevant can help the jury evaluate that foreign experience, whether the testimony
reflects scientific, technical, or other specialized knowledge.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-49 (1999).

Here, Clarke, a specialist in fire causation in vehicles, with thirty-two years of
experience in the technical side of the automotive industry, translated specialized
observations into a theory about the fire’s origin and ways to prevent like fires. His theory
regarding a modified stiffener plate is very basic, and other such stiffener plates exist on the
market, including in the subject vehicle’s newer model. Further, Clarke’s contention that the
benefits inherent in the stiffener plate as designed—including better gas mileage,
aerodynamics and internal heating—do not outweigh the deadly risk of fire, is also
sufficiently straightforward. Accordingly, the risk/benefit analysis in this case is a question
more appropriate for the jury, and not for summary judgment. As such, the Court finds that
Clarke’s failure to test the aerodynamics of his alternative design goes to weigh, not to
admissibility of his testimony. See Clay v. Ford Motor Company, 215 F.3d 663, 668 (6th
Cir.2000) (failure to test goes to weight not admissibility); accord Williams 2007 WL
3232292, at *2 (N.D. Ohio Oct. 30, 2007) (holding that an expert witness presented reliable
testimony, even though he did not perform any testing and his theory was not generally
accepted, because conclusions were “supported by rational explanations and his methods
d[id] not strike the court as novel or extreme”).
6. Relevance of Clarke’s Conclusions
Defendants argue that Clarke’s conclusions are not relevant because his conclusions are
based on unsupported assumptions, and his theories do not fit the facts of this case. Specifically,
Defendants argue that Clarke ignores evidence that Defendants placed in the record—including
20

evidence of extensive airflow and aerodynamic testing and evaluation done on the E90
platform—showing that debris cannot infiltrate the engine compartment. Defendants claim that
Clarke also ignored that he could not identify another vehicle with a similar design where
openings around the hood allowed infiltration and accumulation of debris in the engine, thus
causing a fire. Further, Defendants assert that Clarke ignores that the two exemplar vehicles that
both parties inspected had substantially more miles than the subject vehicle and were not found
to contain debris in the under-engine compartment covers. Lastly, Defendants argue that Clarke
did not inspect the under-engine compartment attached to the exemplar 2009 BMW 328xi he
inspected a week before the deposition to see if debris had collected there. Thus, Defendants
argue, the facts available in the case do not support Clarke’s conclusions and are not relevant
because they will not assist jurors, but merely confuse them.
In Daubert, the Supreme Court emphasized that in addition to examining the reliability of
the expert’s testimony, the trial court must ensure that the proposed expert testimony is “relevant
to the task at hand.” Daubert, 509 U.S. at 580. The relevance requirement in the Rule 702
inquiry “relates to the ‘fit’ of the testimony, that is, ‘whether the reasoning or methodology
properly can be applied to the facts in issue [,]’ Daubert, 509 U.S. at 593, so as to assist the trier
of fact.” Newell Rubbermaid, Inc., 2010 WL 2643417, at *9-10. Further, the trial court must
determine whether the expert’s training and qualifications relate to the subject matter of his
proposed testimony. Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997).
The relevancy prong goes to whether the proposed testimony is probative of a material
issue in the case. ’ Daubert, 509 U.S. at 580, 593. The Court has already determined that
Clarke’s background in the automotive industry and failure mode analysis qualifies him to offer
testimony on the cause of the fire, the defect that contributed to the fire, and an alternative

21

design. Whether Defendants will proffer evidence undermining such conclusions is a matter for
the jury, but does not go to the relevancy of Clarke’s opinions. Additionally, this Court has
already determined that Clarke’s methodology in determining the vehicle’s defect and proposing
an alternative design, albeit limited, was sufficient considering the facts in the case. Thus, while
Defendants are free to undermine the reliability of such methodology on cross-examination,
Clarke’s proposed testimony regarding the cause of the fire, the defect, and the alternative design
is relevant to material issues in dispute in this case.
As this Court has found Richard Clarke’s testimony satisfies Rule 702, Defendants’
Motion to Exclude the Testimony of Richard A. Clarke, (Doc. 77), is hereby DENIED.
B. Plaintiff’s Motion to Strike the Affidavits of Thomas Slaba and Richard Keefer
Next, this Court will address Plaintiffs’ Motion to Strike the Affidavits of Thomas Slaba
and Richard Keefer, attached to their Response to Defendants’ Motion for Summary Judgment.
(Doc. 83).
1. Slaba’s Affidavit
Thomas Slaba provided deposition testimony in this case in response to Plaintiffs’
Federal Rule of Civil Procedure 30(b)(6) notice served upon BMW AG. The deposition notice
requested that Mr. Slaba testify with respect to any evaluation, analysis, testing or inspections
performed by BMW AG or any other contracted individuals, to determine the potential for fires
in the vehicle as a result of the accumulation of unintended debris in the areas of the catalytic
converters or the exhaust down pipes. When asked in his deposition whether BMW performed
any testing to determine whether combustible debris such as foliage, leaves and other organic
matters could accumulate next to the stiffener plate, Slaba responded:
There was no specific testing done with regard to the accumulation of debris, but
the vehicles were subject to regular testing where they are also inspected for dirt
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and debris…when we do normal testing of the vehicle, it did not show that things
like that would happen.
(Slaba Deposition, Doc. 74 at 54-56). Then, in his affidavit attached to the Defendants’ Motion
for Summary Judgment, Slaba states:
The design, research and development of the E90 platform included extensive
airflow and aerodynamics design, research and development. No evidence of
‘debris’ infiltrating the engine compartment via ‘openings in the hood,’ or in any
other fashion, was ever discovered.
(Doc. 78-2 at ¶¶ 26-7).
Plaintiffs argue that the Court should disregard the affidavit testimony regarding
aerodynamic testing of the vehicle because such testimony contradicts Slaba’s prior deposition
testimony. Further, Plaintiffs rely on Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 681 (6th Cir.
2011), and a similar line of cases, to argue that this Circuit has repeatedly rejected affidavits
submitted by witnesses in the context of summary judgment when such information offered in
the affidavits was available at the time of the deposition but not disclosed. Plaintiffs contend that
Clarke’s affidavit opinion regarding the aerodynamic testing of the vehicle was available at the
time of his deposition but not disclosed, and, thus, should be stricken.
Defendants respond that Slaba’s affidavit merely reiterates his deposition testimony and
expounds upon it to provide the Court with the details and facts supporting his conclusions,
which Plaintiffs failed to address during the deposition.
Both parties rely on Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899 (6th Cir. 2006)
for the standard this Court should apply when determining the admissibility of a post-deposition
affidavit at summary judgment. Aerel held that the first step in such an inquiry is to “determine
whether the affidavit directly contradicts the nonmoving party's prior sworn testimony. . . . A
directly contradictory affidavit should be stricken unless the party opposing summary judgment

23

provides a persuasive justification for the contradiction.” Id. at 908. If, however, the district court
finds no contradiction, then it should not “strike or disregard that affidavit unless the court
determines that the affidavit ‘constitutes an attempt to create a sham fact issue.’” Id. To
determine whether the affidavit is an attempt to create a sham fact issue, the court can look to a
nonexhaustive list of factors, including, “whether the affiant was cross-examined during his
earlier testimony, whether the affiant had access to the pertinent evidence at the time of his
earlier testimony or whether the affidavit was based on newly discovered evidence, and whether
the earlier testimony reflects confusion [that] the affidavit attempts to explain.” Id.at 909.
This Court holds that Slaba’s affidavit does not contradict his deposition testimony
regarding aerodynamic testing of the vehicle, but rather restates what was already contradictory
and/or unclear testimony in his deposition. On the one hand, Slaba’s deposition testimony can be
interpreted to mean that no aerodynamic testing was done specifically regarding the stiffener
plate; on the other hand, the deposition testimony can be interpreted to mean that Slaba’s opinion
of the BMW aerodynamic testing is that the results excluded the possibility of such a build-up of
debris near the stiffener plate. His affidavit is similarly contradictory and/or unclear: it states that
BMW conducted unspecified aerodynamic testing on the vehicle, which did not reveal evidence
of debris infiltrating the engine compartment via openings in the hood or otherwise. Such
testimony does not confirm or deny that specific aerodynamic testing was done concerning
collection of debris on the stiffener plate, only that in the unspecified testing performed, no such
evidence was discovered. As the affidavit merely restates what was already contradictory or
unclear deposition testimony, this Court need not address whether such testimony is an attempt
to raise a sham fact. Instead, the affidavit testimony adds no new facts to the case. Accordingly,
this Court hereby DENIES Plaintiffs’ Motion to Exclude the Slaba’s Affidavit.

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2. Affidavit of Richard Keefer
In their witness disclosures, Defendants produced the report of Richard Keefer, a
licensed engineer, who inspected the vehicle and evaluated Mr. Clarke’s claims that the
vehicle was defectively designed. Plaintiffs argue that Keefer’s affidavit attached to
Defendants’ Motion for Summary Judgment contains untimely disclosed expert opinion,
and should be stricken.
Plaintiffs argue that in Keefer’s November 18, 2013 expert report, he notes:
“examination of the accident and exemplar vehicle and their underbody covers indicates
area of small openings that would permit access to the underbody of the vehicle as well
as airflow.” (Doc. 83-5). In Keefer’s Deposition, Plaintiffs asked him whether his report
included any opinion as to how combustible materials made its way to the ignition
surface of the exhaust, or whether Clarke’s opinions of how material got onto the hot
surface were correct. Keefer responded that he did not offer either of those opinions in his
report. (Doc. 83-6). Then, when asked if he thought debris could enter via the hood, he
stated that he thought it could not. Keefer did not offer a specific opinion about how
debris could enter the engine compartment, nor was he asked to offer such an opinion. In
his affidavit, however, he details with specificity why debris could not have entered
through the hood.
Plaintiffs argue that they are entitled to rely on expert disclosures by an adverse
party in developing deposition questioning. Plaintiffs contend that Defendants knew of
Clarke’s opinion concerning openings in the hood three weeks prior to the deposition,
and that Keefer should have produced a supplemental expert report setting forth his
detailed opinions about why debris could not have entered via the hood.

25

Defendants respond that Keefer made clear he did not think debris could enter via
the hood during his deposition, and that his affidavit merely expounded upon those
opinions because Plaintiffs failed to ask any follow-up questions regarding Keefer’s
opinion.
This Court finds that Plaintiffs were free to ask detailed questions regarding Keefer’s
opinion and failed to do so. Plaintiffs were on notice from Keefer’s report that Keefer believed
debris had entered via openings in the under-body cover, and not openings in the hood. Further,
Plaintiffs were aware that Keefer did not think debris could enter via the hood due to his
responses in the deposition itself. As such, this Court DENIES Plaintiffs’ Motion to Exclude
Keefer’s Affidavit.
C. Summary Judgment
The Court will now address Defendants’ Motion for Summary Judgment on Plaintiffs’
following claims: (1) breach of implied warranty against both BMW Defendants (Count IV); (2)
product liability under OPLA against the manufacturer, BMW AG (Count III); and (3) product
liability under the Ohio Product Liability Act (“OPLA”) against the supplier, BMW NA (Count
II). (Doc. 78).
1. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it
“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United

26

States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court reviewing a summary judgment motion need
not search the record in an effort to establish the lack of genuinely disputed material facts,
however. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir.1992). Rather,
the burden is on the nonmoving party to present affirmative evidence to defeat a properly
supported motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), and to
designate specific facts that are in dispute. Anderson, 477 U.S. at 250; Guarino, 980 F.2d at
404–05.
To survive the motion the nonmoving party must present “significant probative evidence”
to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The mere existence of a scintilla of
evidence in support of the opposing party's position will be insufficient to survive the motion;
there must be evidence on which the jury could reasonably find for the opposing party. See
Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also
Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (finding that the suggestion of a
mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).

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2. Count IV: Implied Warranty Claim
First, Defendants assert that OPLA abrogates Plaintiffs’ breach of implied warranty
claim, entitling Defendants to summary judgment as a matter of law on Count IV. OPLA states
that its sections “are intended to abrogate all common law product liability claims or causes of
action.” O.R.C. § 2307.71(B). OPLA defines a “product liability claim” as:
a claim or cause of action that is asserted in a civil action pursuant to sections
2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory
damages from a manufacturer or supplier for death, physical injury to person,
emotional distress, or physical damage to property other than the product in
question, that allegedly arose from any of the following:
(a) The design, formulation, production, construction, creation, assembly,
rebuilding, testing or marketing of that product;
(b) Any warning or instruction, or lack of warning or instruction, associated with
that product;
(c) Any failure of that product to conform to any relevant representation or
warranty.
§ 2307.71(A)(13). Defendants argue that since OPLA abrogates all common law product defects
claims, which by OPLA’s definition includes any failure of a product to conform to any relevant
representation or warranty, OPLA accordingly preempts Plaintiffs’ common law breach of
implied warranty claim.
Plaintiffs respond that they bring the breach of warranty claim solely to recover for
economic damages—i.e., the vehicle itself and incidentals related to the Patrick’s lodging while
their home was being repaired—and not for compensatory damages related to damage to the
Patricks’ home. By its language, Plaintiffs argue, OPLA does not abrogate such a claim, since
OPLA defines a product liability claim as one that seeks to recover compensatory damages, not
economic damages, for physical injury to person, emotional distress, or physical damage to
property other than the product in question. Further, Plaintiffs argue that O.R.C. § 2307.72(C)

28

supports their reading of O.R.C. § 2307.71(A)(13). O.R.C. § 2307.72(C) is an OPLA provision
covering damages, and it states:
Any recovery of compensatory damages for economic loss based on a claim
that is asserted in a civil action, other than a product liability claim, is not
subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur
under the common law of this state . . .
O.R.C. § 2307.72(C) (emphasis added).
To be clear, although OPLA does not classify a claim for economic damages as a
“product liability claim,” that does not mean that OPLA precludes recovery of economic
damages entirely. Instead, OPLA makes any recovery of economic damages contingent on an
award of compensatory damages:
(A) If a claimant is entitled to recover compensatory damages for harm from a
manufacturer in accordance with section 2307.73 of the Revised Code or from a
supplier in accordance with division (B) of section 2307.78 of the Revised Code,
the claimant may recover from the manufacturer or supplier in question, in that
action, compensatory damages for any economic loss that proximately resulted
from the defective aspect of the product in question.
O.R.C. § 2307.79(A). In other words, under OPLA, recovery on the Patricks’ vehicle is
derivative of Plaintiffs’ success in showing that a design defect in the vehicle damaged the
Patricks’ home.
Courts in this Circuit have held that to the extent a Plaintiff brings common law claims
for breach of implied warranty in tort and negligence for defective design and failure to warn,
seeking purely economic damages, and does not bring any claims under OPLA for compensatory
damages, OPLA does not abrogate those common law claims. In re Whirlpool Corp. FrontLoading Washer Products Liab. Litig., No. 1:08-WP-65000, 2014 WL 4674670, at *11 (N.D.
Ohio Sept. 19, 2014) (citing Hoffer v. Cooper Wiring Devices, 2007 WL 1725317 (N.D.Ohio
June 13, 2007) (Boyko, J.)).

29

The case sub judice is distinguishable from Whirlpool, however, because Plaintiffs bring
both an OPLA claim for compensatory damages, and also a common law negligence claim for
economic damages, under the same set of facts. Accordingly, Plaintiffs urge this Court to follow
Huffman v. Electrolux N. Am., Inc., which held that a Plaintiff may bring, simultaneously, a
common-law products liability claim for purely economic damages and an OPLA claim for
compensatory damages, even if both claims are based on the same set of underlying facts, so
long as the claims are pled in the alternative. 961 F. Supp. 2d 875, 881 (N.D. Ohio 2013) on
reconsideration sub nom. Huffman v. Electrolux Home Products, Inc., No. 3:12CV2681, 2013
WL 5591939 (N.D. Ohio Sept. 30, 2013).
In Huffman, Plaintiff sued Defendant under both OPLA and common law implied
warranty claims for a washing machine that smelled of mold. Plaintiff sought compensatory
damages under her OPLA claim, and only economic loss damages under her common-law
claims. Id. at 878. The Huffman Court acknowledged that it is uncontested that the “General
Assembly amended the OPLA to make clear that it had intended for the Act to supersede
common-law negligence claims,” including implied warranty claims. Huffman, at 879 (citing
Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir.2010)). The Huffman Court noted, further, that “it
is well-established that under the OPLA, claimants cannot recover only economic damages.”
Huffman at 881(citing State Farm Mut. Auto. Ins. Co. v. Kia Motors Am., Inc., 160 Ohio App.3d
727, 734, 828 N.E.2d 701 (2005). Lastly, the Court recognized precedent in the case Mitchell v.
Proctor & Gamble, which held that:
a plaintiff cannot bring a common-law negligence claim for economic damages
where the actionable conduct that forms the basis of the negligence claim ... is the
same conduct that ... giv[es] rise to [the] products liability claim. The [Mitchell]
court further stated a plaintiff cannot separate out his claims from the purview of
the OPLA simply by claiming only economic losses.

30

Huffman at 880 (internal quotations and citations omitted).
The Huffman Court declined to follow Mitchell, however, because doing so meant that a
plaintiff would have to choose between recovering only for economic loss under a common law
negligence theory, or bringing an OPLA claim, with the risk that failure to establish a
compensatory damages claim under OPLA would bar the plaintiff’s contingent right to economic
damages:
Given the [OPLA’s] prohibition on recovering solely economic loss damages, the
court's decision in Mitchell—that a plaintiff asserting an OPLA claim cannot
bring common-law claims arising out of the same alleged defect—turns a
plaintiff's recovery of economic loss damages into a gamble. The court's decision
requires plaintiffs to choose between a relatively certain recovery of economic
loss damages and the possible recovery of compensatory damages plus economic
loss damages.
Id. at 881.
The Huffman Court determined, accordingly, that “Ohio law does not support
circumscribing a plaintiff’s right to the remedy of economic loss damages. Under Ohio law, the
right to a remedy, and more specifically, a consumer's right to recover solely economic loss
damages is well-established.” Huffman at 881-82 (citing OHIO CONST. Art. I § 16 (“[a]ll courts
shall be open and every person for an injury done him in his land, goods, person, or reputation,
shall have remedy by due course of law.”); In re Whirlpool, supra, 684 F.Supp.2d at 949–950
(citing Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 45, 537 N.E.2d
624 (1989), LaPuma, supra, at 716; and Midwest Ford, Inc. v. C.T. Taylor Co., 118 Ohio App.3d
798, 694 N.E.2d 114, 116–17 (1997))).
Thus, the Huffman Court held that although a Plaintiff cannot recover on both an OPLA
claim and a common claim under the same set of facts, the Plaintiff has a procedural right to

31

assert common-law and OPLA claims simultaneously under Federal Rules of Civil Procedure
8(d)(2), (3), which explicitly allow parties to assert inconsistent alternative theories.2
This Court agrees with and follows the rationale in Huffman. Accordingly, this Court
holds that Plaintiffs are permitted to argue in the alternative, and bring their OPLA claims for
compensatory damages, and their common implied warranty claim for purely economic
damages, under the same set of facts. Defendants’ motion for summary judgment as to Count IV
is hereby DENIED.
3. Count III: Products Liability Claim against BMW AG, Existence of a Defect
As a manufacturer, BMW AG is subject to liability under OPLA if Plaintiffs establish, by
a preponderance of evidence, that the vehicle in question:
was defective in manufacture or construction as described in section 2307.74 of
the Revised Code, was defective in design or formulation as described in section
2307.75 of the Revised Code, was defective due to inadequate warning or
instruction as described in section 2307.76 of the Revised Code, or was defective
because it did not conform to a representation made by its manufacturer as
described in section 2307.77 of the Revised Code.
Ohio Rev. Code § 2307.73(A). To survive summary judgment in an action brought under OPLA,
Plaintiffs must prove: “(1) the existence of a defect in the product at issue, (2) that the defect
existed at the time the product left the hands of the manufacturer, and (3) the defect was the
direct and proximate cause of the plaintiff's injury.” Jones v. Staubli Motor Sports Div. of Staubli
Am. Corp., 897 F. Supp. 2d 599, 612 (S.D. Ohio 2012).
Plaintiffs allege that BMW AG is liable under OPLA for: (1) a design defect in the
vehicle which allegedly caused the fire; (2) a manufacturing defect in the vehicle that allegedly
Rule 8(d)(2) states, “A party may set out 2 or more statements of a claim or defense alternatively
or hypothetically, either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is sufficient.”

32

caused the fire; and (3) failure to warn of the purported fire risk. Defendants contend that
Plaintiffs cannot establish any of the elements of the relevant standards for any of the product
liability claims that Plaintiffs bring under OPLA. In addition, Defendants contend that the record
shows that Plaintiffs have only pursued the design defect theory in the case, so they only address
this product liability theory in their Motion for Summary Judgment.
The Court agrees that Plaintiffs do no develop the manufacturing defect theory or the
failure to warn theory anywhere in the record. In addition, in their reply brief, Plaintiffs do not
address Defendants’ contention that Plaintiffs have failed to pursue a manufacturing defect
theory or failure to warn theory. (Doc. 81). As such, the Court will address only Plaintiffs’
design defect theory, and assume Plaintiffs have discarded other theories to establish product
liability.
a. Design Defect
Under Ohio Law, a product is defective in design “if, at the time it left the control of its
manufacturer, the foreseeable risks associated with its design or formulation ... exceeded the
benefits associated with that design or formulation.” O.R.C. § 2307.75(A). According to
Subsection B of § 2370.75, “[t]he foreseeable risks associated with the design or formulation of a
product shall be determined by considering factors including, but not limited to, the following:
(1) The nature and magnitude of the risks of harm associated with that design or
formulation in light of the intended and reasonably foreseeable uses,
modifications, or alterations of the product;
(2) The likely awareness of product users, whether based on warnings, general
knowledge, or otherwise, of those risks of harm;
(3) The likelihood that that design or formulation would cause harm in light of the
intended and reasonably foreseeable uses, modifications, or alterations of the
product;
(4) The extent to which that design or formulation conformed to any applicable
public or private product standard that was in effect when the product left the
control of its manufacturer;
33

(5) The extent to which that design or formulation is more dangerous than a
reasonably prudent consumer would expect when used in an intended or
reasonably foreseeable manner.
O.R.C. § 2307.75(B). “Foreseeable risk” means:
a risk of harm that satisfies both of the following:
(a) It is associated with an intended or reasonably foreseeable use, modification,
or alteration of a product in question.
(b) It is a risk that the manufacturer in question should recognize while exercising
both of the following:
(i) The attention, perception, memory, knowledge, and intelligence that a
reasonable manufacturer should possess;
(ii) Any superior attention, perception, memory, knowledge, or intelligence that
the manufacturer in question possesses.
O.R.C. § 2307.71(A)(6). Section 2307.75(C) has a non-exclusive list of factors that must be
considered in determining the benefits of a design:
(1) The intended or actual utility of the product, including any performance or
safety advantages associated with that design or formulation;
(2) The technical and economic feasibility, when the product left the control of its
manufacturer, of using an alternative design or formulation;
(3) The nature and magnitude of any foreseeable risks associated with an
alternative design or formulation.
O.R.C. § 2307.75(D).
“If the plaintiff fails to demonstrate a material issue of fact whether the foreseeable risks
of a design outweigh the benefits of a design, the defendant will be entitled to summary
judgment on a defective design claim.” Butts v. OMG, Inc., No. 1:11-CV-918, 2014 WL
4628496, at *9 (S.D. Ohio Sept. 11, 2014) (citing Monroe v. Novartis Pharm. Corp., Case No.
1:12–cv–00746 (WOB–KLL), 2014 WL 3378345, at *7 (S.D.Ohio July 10, 2014)).
BMW AG argues that summary judgment is appropriate on Plaintiffs’ defective design
claim because: (1) Plaintiffs cannot maintain their claim without expert testimony; (2) the

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purported scenario speculated by Clarke that led to the vehicle fire does not satisfy the definition
of foreseeable risk; (3) the foreseeable risk in the vehicles design that Clarke alleges exists does
not exceed the benefits of the vehicle’s design; and (4) Plaintiffs do not present a technically
feasible alternative design.
i. Expert Testimony
Defendants’ argue that Plaintiffs cannot prove the necessary elements of a design defect
claim under OPLA because the testimony of Richard A. Clarke, Plaintiffs’ proposed expert
witness, should be excluded under Fed. Evid. R. 702. Without an expert to establish the elements
of the claim, Defendants argue, the design defect claim fails as a matter of law. This Court has
already denied Defendants Motion in Limine to Exclude the Testimony of Richard Clarke. (Doc.
77). As such, Defendants’ argument fails.
ii. Foreseeable Risk Analysis
Defendants argue that the record does not establish that a foreseeable risk of fire existed
in the vehicle as designed. As an initial point of clarification, Plaintiffs stated in their briefs, and
reiterated at oral argument, that Mr. Clarke’s opinion is not that the presence of openings in the
BMW is the defect. Rather, the defect in the vehicle is that debris was naturally permitted to
accumulate in the engine compartment in close proximity to heated surfaces due to the design of
the stiffener plate, which lacks any holes to permit self-cleaning, and which has six protruding
bolts that trap debris. While Mr. Clarke opines that debris entered via openings in the hood and
through the NACA ducts, Plaintiffs submit that this opinion is material only to contest the
Defendants’ theory that debris entered due to a nesting rodent, and could not have entered due to
the normal aerodynamics of the vehicle.

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Defendants respond, however, that before reaching the question of whether a foreseeable
risk of fire exists in the stiffener plate as designed, it is Plaintiffs’ burden to show, first, that
BMW AG should have recognized the risk that debris can enter the engine department and settle
on the stiffener plate, through openings around hood or otherwise, during normal vehicle use.
Plaintiffs have not met this burden, Defendants argue, as they have not presented any proof that
debris can infiltrate the vehicle via openings in the hood or NACA duct, but their expert, Clarke,
only opines that it is possible. In addition, Defendants will present two primary pieces of
evidence showing a debris fire on the stiffener plate was not foreseeable. First, between 2004 and
2012, BMW sold 1.8 million vehicles on the E90 platform, and the record does not show any
other fires in similar vehicles attributable to the alleged defect. Second, BMW performed
extensive aerodynamic testing on the vehicle, none of which revealed the possibility of debris
entering the engine compartment during the normal course of vehicle operation.
In addition, Defendants argue that not a single factor used to determine foreseeable risk
under § 2307.75(B) applies to the case sub judice. In terms of the first factor, Defendants will
present evidence that it performed extensive testing at the design stage showing that debris of the
kind that started the fire could not infiltrate the engine compartment via openings in the hood or
accumulate in the vehicle’s engine compartment. (Doc. 78-3, Keefer Deposition). While Clarke
opines that debris can enter via openings in the hood and the NACA ducts based on his
inspection of the vehicle and two exemplars, he never tests this theory. As to the second and fifth
factors, Defendants argue that they had no duty to warn of an unknown or unknowable risk, and
that the vehicle is no more or less dangerous than a reasonable consumer would expect, because
there is no design defect. As to factor three, Defendants assert that there is no likelihood that the
vehicle design would cause the type of harm at issue because it is impossible for debris to

36

infiltrate the vehicle in the manner Plaintiffs propose, and Clarke has not presented any evidence
that it is possible.
Plaintiffs counter that the collective testimony of all three of its experts establishes the
prima facie case that the BMW was defective at the time the BMW left possession of the
Defendants. In addition, Plaintiffs will cite to Defendants’ expert Richard Slaba’s deposition
testimony to raise a genuine issue of material fact as to Defendants’ contention that no other allwheel drive E90 platform vehicle has caught fire due to a similar defect. In Slaba’s deposition he
states that only 220,000 of the purported 1.8 million E-90 vehicles sold between 2004-2012 were
all-wheel drive vehicles equipped with the stiffener plate. Further, Mr. Slaba has held his
position in the BMW Product Analysis Department only since 2011, and during that time period
he has become aware of 20-30 fires in BMW E-90 vehicles. Plaintiffs argue that many of those
fires are unexplained, and could have been caused by the stiffener plate defect; thus, Slaba’s
assertion that no such fire has ever occurred lacks proper foundation and is speculative. Further,
they will cite to Keaton, Defendants’ expert, who stated in his deposition that deductive
reasoning indicated to him that debris drawn into the vehicle through any openings will be forced
down to the bottom portion of the vehicle, where the stiffener plate is located. (Doc. 81-7 at 7484).
The Court will begin the foreseeable risk analysis by addressing Plaintiffs’ contention
that Defendants’ focus on the foreseeable risk is misplaced, and ignores that Plaintiffs can
successfully pursue a design defect claim under the consumer expectation test alone. Before the
2005 amendments, Ohio law provided Plaintiffs “with two theories upon which to recover: (1)
the consumer expectation standard; and (2) the risk-benefit standard.” Acton v. Excel Indus., Inc.,
No. 2:08-CV-315, 2009 WL 1794559, at *4 (S.D. Ohio June 23, 2009). In 2005, however, an

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amendment to OPLA removed the consumer expectation test as an independent theory of
liability and made, “the extent to which the design or formulation is more dangerous than a
reasonably prudent consumer would expect when used in an intended or reasonably foreseeable
manner,” one of five factors to use when determining whether a foreseeable risk exists. See
O.R.C. § 2307.71 (B)(5); See Ruff v. Wal-Mart Stores E., LP, No. 2:07CV292, 2009 WL
3150319, at *4 (S.D. Ohio Sept. 30, 2009) (Senate Bill 80, effective April 7, 2005, modified
OPLA by removing the “consumer expectation” standard from R.C. § 2307(A)(2) to appear
instead as a new subsection of § 2307.75(B)(5)). The question for this Court is whether proving
the consumer expectation test, as it existed prior to the 2005 amendments, is sufficient alone to
prove foreseeable risk under the current version of OPLA.
Plaintiffs do not present any cases that state definitively that under OPLA amendments, a
Plaintiff can still pursue either a foreseeable risk analysis or a consumer expectation analysis in
order to satisfy their burden of proving foreseeable risk under OPLA, § 2307.75 (B). Plaintiffs do
cite, however, to Krumpelbeck v. Breg, Inc., 491 F. App'x 713 (6th Cir. 2012), a case which
shows that the consumer expectation test remains a necessary consideration for imposing liability
in design defect cases after the 2005 OPLA Amendment.
In that case, the district court had concluded that plaintiff’s design defect claim failed
because there was no evidence that the defendant had a reason to know of the purported risk
associated with product. Id. The appellate court found that the district court had erred in its
foreseeable risk analysis under OPLA because it had completely ignored the consumer
expectation test—the “primary basis” on which plaintiff argued the product was defectively
designed. Id. The appellate court explained that the consumer expectation test focuses “not on
the risks known to the manufacturer but the consumer's understanding and appreciation of the

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dangers associated with use of the product;” thus, focusing on the foreseeability of the risk from
the manufacturer’s perspective alone was insufficient under §2307.75(B). Id. The appellate court
then held that:
[b]ecause the district court did not discuss the statutory factors listed in §
2307.75(B), including the consumer-expectation test, we find that it misapplied
the law in determining the ‘foreseeable risks’ for the purposes of Krumpelbeck's
claim for defective design.
Id.
Defendants argue that Krumpelbeck’s holding weighs in their favor because it shows that
the consumer protection test is only one of five factors in the foreseeability test. This Court
agrees that Krumpelbeck shows that under the newer version of OPLA, the consumer expectation
test is no longer a completely independent test in the same way it was under the prior version of
OPLA. Instead, the Krumpelbeck court makes clear that the consumer expectation test is one of
five nonexclusive considerations that the court should discuss when determining foreseeable risk.
That being said, the appellate court in Krumpelbeck acknowledged that the consumer expectation
test was plaintiff’s “primary basis” for arguing that foreseeable risk existed, and still went on to
hold that the district court erred in its foreseeable risk analysis by failing to consider the
consumer expectation test. This suggests that a genuine issue of material fact concerning the
consumer expectation test is enough for the determination of foreseeable risk to go to the jury.
Further, § 2307.75(B) makes clear that “[t]he foreseeable risks associated with the design
or formulation of a product shall be determined by considering factors including, but not limited
to” the five factors listed in the statute. Thus, while OPLA directs Courts to consider the five
factors, it contains no directive in how to weigh these factors. Accordingly, the holding in
Krumpelbeck and the language of OPLA are both consistent with this Court’s holding that each
factor under § 2307.75(B) must be considered, and that as long as a genuine issue of material
fact exists as to any nonexclusive factor, the Court should find that whether a foreseeable risk
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exists is a question for the jury. While a jury should properly be instructed to consider all
nonexclusive factors when determining the existence of foreseeable risk, the ultimate weighing
of those factors in determining foreseeable risk is a task for the jury, not the Court.
This Court’s holding is consistent with the Ohio rule that “the question of what an
ordinary consumer expects in terms of the risks posed by the product is generally one for the trier
of fact.” Donegal Mut. Ins. v. White Consol. Indus., Inc., 2006-Ohio-1586, ¶ 16. It is further
consistent with the broader rule that summary judgment will rarely be granted in design-defect
claims because questions of “[f]oreseeable uses of a product, foreseeable risks associated with a
product, benefits associated with a product, and consumer expectations regarding a product's
uses and risks are ordinarily all factual questions.” McWilliams v. S.E. Inc., No. 5:07CV3700,
2009 WL 3625173, at *3 (N.D. Ohio Oct. 29, 2009) (citing Welch Sand & Gravel, Inc. v. O & K
Trojan, Inc., 107 Ohio App.3d 218, 225, 668 N.E.2d 529 (1995)).
Because questions of foreseeable risk and benefits associated with a product are generally
reserved for the jury, this Court declines to follow the rationale in Butts v. OMG, Inc., No. 1:11CV-918, 2014 WL 4628496, at *8-12 (S.D. Ohio Sept. 11, 2014), a case in which the Court, not
the jury, weighed the five § 2307.75(B) foreseeable risk factors, and did not consider
Krumpelbeck. In Butts, Plaintiffs argued that a caulking gun used to adhere insulation board to
roofing substrates was defective as designed because it did not have proper safety mechanisms to
protect users from getting their fingers caught in it should a blowback effect occur. Defendants
argued that Plaintiff had not adduced sufficient facts showing risks of the product design
outweighed its benefits, because, like the Plaintiffs in Krumpelbeck, they only addressed the
consumer expectation factor of 2307.75(B), and had foregone any analysis of the other factors
set out in §§ 2307.75(B) and (C).

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The Butts court agreed that the consumer expectation test favored the Plaintiff, noting
that a reasonably prudent consumer could not expect to suffer a crushing hand injury during the
normal use of the product. Id. at *10. Although the consumer expectation factor favored the
Plaintiff, however, the Butts court found that the “remaining factors in Subsections B and C
either favor[d] Defendants, [were] neutral, or [had] no applicability.” Id. In other words,
according to the Court in Butts, reliance on the consumer expectation test alone did not meet the
§ 2307.75(B) standard for establishing a genuine issue of material fact as to foreseeable risk
under the facts of that case. After analyzing why each of the remaining factors weighed in favor
of the Plaintiffs, the Butts Court ultimately granted summary judgment to Defendant because
“the balance of the § 2307.75(B) factors indicate[d] that there was not a foreseeable risk of a
blowback event with the design of the SpotShot Applicator and OlyBond 500 at the time of
Plaintiff's accident.” Id.
This Court disagrees with Butt’s that the Court’s proper role is to weigh the nonexclusive
foreseeable risk factors under § 2307.75(B) on summary judgment. Although the consumer
expectation test is no longer an independent test, neither Krumpelbeck nor the language of §
2307.75(B) indicates that the Court’s role is to weigh the foreseeable risk factors. As stated
above, unless no genuine issue of material fact exists as to any factor under § 2307.75(B)—
which would be rare considering the fact-intensive nature of the factors and a design defect
claim—summary judgment on the basis of failure to prove foreseeable risk will generally be
inappropriate.
In light of this Court’s interpretation of Krumpelbeck and § 2307.75(B), this Court will
address each nonexclusive factor to determine whether genuine issues of material fact exist. As
to (B)(1), and (B)(3)—“the nature and magnitude of the risks of harm associated with that

41

design,” and the “likelihood that that design or formulation would cause harm” in light of the
intended and reasonably foreseeable uses of the product—this Court finds that there are genuine
issues of material fact precluding summary judgment. While Defendants will present evidence
suggesting that no similar debris fires on the stiffener plate have ever occurred in 1.8 million E90
platform BMWs, Plaintiffs will present evidence undermining the foundation and credibility of
such evidence including: Slaba’s testimony that only 220,000 of the purported 1.8 million E90
vehicles sold between 2004-2012 were all-wheel drive vehicles equipped with the stiffener plate,
and that since Slaba began at BMW in 2011, he has become aware of 20-30 fires in BMW E90
vehicles, many of which are unexplained. In addition, genuine issues of material fact exist as to
the likelihood that debris can enter the engine compartment during the normal use of the vehicle,
thus leading to a fire on the stiffener plate. While Defendants will present evidence the debris
accumulation on the stiffener only could have been caused by a rodent, Plaintiffs will present
expert testimony that debris can enter the engine compartment and rest on the stiffener plate
during normal use of the vehicle. The weight and credibility of such evidence is not for this
Court to determine. As such, the likelihood that the stiffener plate would cause a fire, and the
magnitude of the risk of fire, both present genuine issues of material fact.
Factor (B)(2)—the likely awareness of product users, whether based on warnings, general
knowledge, or otherwise, of those risks of harm—is not applicable in this case. The record shows
that the Patricks used and operated their vehicle normally, and no adjustment in their use of the
vehicle would have prevented the vehicle fire in this case either under Plaintiffs’ or Defendants’
theory of causation. As such, no change in awareness or warning related to the risk of fire would
have modified the Patrick’s behavior in this case, short of warning them not to use the vehicle at
all.

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Factor (B)(4)—the extent to which the design of the stiffener plate conformed to any
applicable public or private product standard that was in effect when the vehicle left the control
of BMW AB—also presents a genuine issue of material fact. Defendants argue that Plaintiffs
present no evidence showing that the holes in the stiffener plates of the two-wheel drive BMW
were intended to be used for self-cleaning. Plaintiffs respond that other stiffener plates on the
market when the vehicle was designed, including those on the two-wheel drive E90 BMWs, used
the allegedly safer, “self-cleaning” design, and that this design would have avoided the fire. This
Court acknowledges that outside of showing other vehicles with the “self-cleaning” stiffener
plate, Plaintiffs do not present any other evidence regarding vehicle standards as they relate to
debris collection in the engine compartment and stiffener plate design. It is not for the Court to
weigh the persuasive value of Plaintiffs’ evidence, however, but only to find that it is a material
fact for the jury.
Finally, as to (B)(5)—the extent to which the design or formulation of the stiffener plate
is more dangerous than a reasonably prudent consumer would expect when used in an intended
or reasonably foreseeable manner—also presents a genuine issue of material fact. Plaintiffs argue
that a prudent consumer would not expect her properly maintained car to catch on fire during
normal use due to the normal accumulation of debris in the engine compartment. Defendants
contend that this factor is not significant because the situation which allegedly led to the fire—a
rodent nesting in the engine compartment—is not a foreseeable occurrence, and thus beyond the
control of the manufacturer. While the jury may ultimately find that other foreseeable risk factors
weigh against relying on the consumer expectation test to establish foreseeable risk, this
balancing is left to the trier of fact.

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In sum, genuine issues of material fact exist as to the foreseeable risks associated with the
design or formulation of the stiffener plate.
iii. Risk/Benefit Analysis
Next, Defendants argue that even if Plaintiffs can show a “foreseeable risk” existed in the
vehicle, no reasonable juror could find that the foreseeable risks associated with the vehicle’s
design exceeded the benefits associated with that design. A non-exclusive list of factors to
consider when determining the benefits of the stiffener plate as designed includes: “the product’s
utility, including performance or safety advantages; the technical and economic feasibility of
using an alternative design; and the nature and magnitude of any foreseeable risks associated
with an alternative design.” Clay v. Ford Motor Co., 215 F.3d 663, 670 (6th Cir. 2000) (citing
Ohio Rev.Code Ann. § 2307.75(C)).
Slaba’s Deposition puts forth the benefits of the stiffener plate as designed, including that
it: (1) strengthens the vehicle’s front axle; (2) reduces drag by guiding airflow underneath the
vehicle, playing a significant role in the vehicle’s aerodynamic characteristics and reducing fuel
consumption; (3) reduces vehicle emissions by allowing catalytic converters to reach operating
temperatures more quickly; (4) allows the car to retain heat during breaks in operation so it can
heat the passenger compartment more quickly; (5) shields the engine from fluid, spray, and
grime; and (6) reduces noise emissions. Defendants argue that Plaintiffs’ alternative design—
placing holes in the stiffener plate—would reduce these benefits, although it is unclear from the
record by how much. In sum, Defendants argue that no reasonable juror could find such a
miniscule risk of fire—one out of 1.8 million vehicles, or even 220,000 vehicles on Plaintiffs’
count—outweighs these substantial benefits in fuel economy and aerodynamics.

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When assessing all three factors under § 2307.75(C), genuine issues of material fact exist
regarding the benefits of the stiffener plate as designed. As to the first factor, Defendants argue
that the stiffener plate as designed clearly has performance advantages, but they do not present
any evidence of safety advantages. Plaintiffs respond, and Clarke states in his expert report, that
the risk of fire presented by a stiffener plate without holes clearly outweighs any performance
gains derived from it. As such, although Plaintiffs do not present any opinion or evidence as to
how his alternative design will affect some performance advantages, it is for the jury to balance
the design versus safety advantages of the alternative design.
As to factors two and three, Plaintiffs presented an alternative design, which is a stiffener
plate with holes to allow self-cleaning. Plaintiffs contend that this alternative design would have
remedied the engine fire, regardless of how debris entered the area of the stiffener plate in the
first place. Although Clarke admits in his deposition that his alternative stiffener plate is
“primitive,” and would require an engineer’s touch to reach full implementation, Clarke
manufactured it as a conceptual example. Clarke also presents evidence, which is not
controverted, that the newer version of the subject vehicle, the F-30 platform, has stiffener plates
with holes. The shortcoming of Clarke’s alternative design is that he presents no testing or
evidence that his design would have remedied a similar fire, or that the newer version of the
stiffener plate with holes, currently in use by BMW, was intended to promote self-cleaning or
actually does. Neither does Clarke present research concerning stiffener plate design.
This Court agrees with Plaintiffs, however, that weighing the foreseeable risks of the
stiffener plate against the benefits of the stiffener plate as designed is a factual issue for the jury,
precluding summary judgment. Clay at 671 (holding that as reasonable minds could differ about
a risk versus benefits analysis in a vehicle’s design, the issue should go to the jury). As such,

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whether the benefits of the stiffener plate as designed outweighs any foreseeable risks presents a
genuine issue of material fact.
iv. Alternative Design Analysis
Pre-2005 Amendments to OPLA, the law was clear that it was the plaintiff’s burden to
prove that a practical and technically feasible alternative design existed that would have
prevented the harm for which the claimant seeks to recover without substantially impairing the
usefulness or intended purpose of the product. Gist v. GMC, 2005 U.S. App. LEXIS 6443 (6th
Cir. Apr. 12, 2005). Post-2005 Amendments, OPLA states that a product is “not defective in
design” if there was no “practical and technically feasible alternative design ... that would have
prevented the harm for which the claimant seeks to recover … without substantially impairing
the usefulness or intended purpose of the product.” Ohio Rev.Code § 2307.75(F) (emphasis
added). “Although this subsection does not state that it is a plaintiff's burden to prove an
alternative design, the Sixth Circuit has so held.” Monroe v. Novartis Pharm. Corp., No. 1:12CV-00746 WOB, 2014 WL 3378345, at *7 (S.D. Ohio July 10, 2014) (relying on McGrath v.
Gen. Motors Corp., 26 Fed.Appx. 506, 510 (6th Cir.2002) (“[Plaintiff]'s argument that he is not
required to provide such evidence is therefore without merit.”); Jacobs v. E.I. du Pont de
Nemours & Co., 67 F.3d 1219, 1242 (6th Cir.1995).” Defendants argue that while Plaintiffs have
offered an alternative design—specifically a stiffener plate with holes that Clarke produced—
Plaintiffs have not offered a practical and technically feasible alternative design because: (1)
Clarke performed no testing on his design to show it was feasible; and (2) Clarke’s design
diminishes some benefits of the stiffener plate and ignores others.
As noted above, newer models of the subject vehicle have stiffener plates with holes.
Defendants argue that the newer vehicle is a total redesign, however, and, as such, Plaintiffs

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cannot show how a stiffener plate with holes would affect the feasibility of the E90 BMW. On
the other hand, even if the Court were to accept that the alternative version of the stiffener plate
will diminish all of the benefits of the current stiffener plate, those benefits have little to do with
the central purpose of a vehicle: to transport people safely from place to place. Plaintiffs argue
that the stiffener plate with holes prevents a serious safety hazard, and a reasonable juror could
agree that the stiffener plate with holes does not substantially impair the usefulness or intended
purpose of the vehicle. This is so even without evidence of testing showing exactly how the
alternative design diminishes the performance benefits of the stiffener plate. As Plaintiffs have
presented an alternative design, it is a question for the jury whether such a design is practical,
technically feasible, and substantially impairs the usefulness or intended purpose of the vehicle.
In sum, genuine issues of material fact exist regarding whether the vehicle was defective
in design due to the position and design of the stiffener plate. Thus, Defendants’ Motion for
Summary Judgment as to Count III is hereby DENIED.
4. Count II: Product Liability Claim against BMW NA
Under OPLA, a “supplier” can be held liable for a design defect either directly under
O.R.C. section 2307.78(A), or indirectly, under O.R.C. section 2307.78(B). Where, as here,
Plaintiffs claim that the supplier, BMW NA, is indirectly liable, Plaintiffs must show that: (1) the
manufacturer, BMW AG, is liable under O.R.C. Sections 2307.71-77, and; (2) one of the eight
conditions of derivative liability under O.R.C. § 2307.78(B) applies to BMW NA. This Court
already determined in Section (III)(C)(3) supra that genuine issues of material fact preclude
summary judgment on Plaintiffs’ product liability claims against the manufacturer, BMW AG.
Thus, under the first prong of the derivative liability analysis, summary judgment is not proper
on Plaintiff’s product liability claim against the supplier, BMW NA.

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As to the second prong of the derivative liability analysis, Plaintiffs concede that the
only potentially applicable provision for derivative liability that applies to BMW NA is that “the
supplier in question is owned or, when it supplied that product, was owned, in whole or in part,
by the manufacturer of that product.” O.R.C. § 2307.78(B)(4). In their briefs, Defendants argued
that Defendant BMW NA should be dismissed because Plaintiffs cannot make a showing that
(B)(4) applies to BMW NA. At the time of their motion, only two witnesses with knowledge
concerning the corporate structure of BMW AG or BMW NA have testified, Mark Yeldham and
Thomas Slaba, and neither testified that BMW NA has ever owned BMW AG or vice versa.
Plaintiffs had otherwise not adduced evidence creating a genuine issue of material fact
concerning BMW AG’s ownership of BMW NA.
During oral argument on this Motion, however, the Court confirmed that Defendants had
failed to file a corporate disclosure statement at the time of filing their first response to Plaintiffs’
Complaint, as required by Fed. R. Civ. P. 7.1. Accordingly, Defendants filed their Rule 7.1
Defendant BMW NA’s Corporate Disclosure Statement immediately after oral argument. (Doc.
98). In the document, BMW states that it “is an indirect, wholly owned subsidiary of
Bayerishche Motoren Werke AG. No single publicly held corporation owns 10% or more of
BMW NA’s outstanding shares.” Accordingly, O.R.C. § 2307.78(B)(4) applies to BMW AG
because the supplier, BMW NA, is owned in whole by the manufacturer of the vehicle, BMW
AG. Thus, BMW NA meets the second prong of derivative liability analysis by showing that one
factor under § 2307.78(B)(4) applies.
Thus, as a genuine issue of material fact exists as to the first prong of the derivative
liability analysis, and Plaintiffs have shown that the second prong of the analysis is satisfied,

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Defendants’ Motion for Summary Judgment as to Count II, product liability against BMW NA,
is hereby DENIED.
IV. CONCLUSION
In Conclusion, Defendants’ Motion for Summary Judgment as to Counts II, III, and IV in
the Plaintiffs’ Complaint is hereby DENIED in full.

IT IS SO ORDERED.

/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: February 4, 2015

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