Kehr ex rel. Kehr v. Yamaha Motor Corp., U.S.A.

• Decision Date: 05 December 2008
• Docket Number: No. 08 cv 7379 (CM).,08 cv 7379 (CM).
• Citation: 596 F.Supp.2d 821
• Parties: Bruce KEHR on behalf of Charles KEHR, a minor, and Grover and Shirley Taber, Plaintiffs, v. YAMAHA MOTOR CORPORATION, U.S.A., Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Co., Ltd., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 821

596 F.Supp.2d 821

Bruce KEHR on behalf of Charles KEHR, a minor, and Grover and Shirley Taber, Plaintiffs, v. YAMAHA MOTOR CORPORATION, U.S.A., Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Co., Ltd., Defendants.

No. 08 cv 7379 (CM).

United States District Court, S.D. New York.

December 5, 2008.

Paulina Do Amaral, Lieff Cabraser Heimann & Bernstein LLP, New York, NY, for Plaintiffs.

James Patrick Donovan, Wilson Elser, Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendants.

MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS, TRANSFER OR SEVER THE CLAIMS OF PLAINTIFFS GROVER AND SHIRLEY TABER; DENYING DEFENDANTS' MOTION TO DISMISS OR STRIKE CERTAIN PORTIONS OF PLAINTIFFS' COMPLAINT; AND GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SIXTH CAUSE OF ACTION FOR VIOLATION OF THE CONSUMER PRODUCT SAFETY ACT.

McMAHON, District Judge.

Bruce Kehr, on behalf of his son Charles Kehr, a minor, and husband and wife, Grover and Shirley Taber ("Plaintiffs") filed this lawsuit on August 20, 2008 against Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Co., LTD. ("Yamaha") seeking damages for strict product liability, negligence, breach of implied warranty, fraudulent concealment, violation of the Consumer Product Safety Act, violation of N.Y. Gen. Bus. L. § 349, and loss of consortium. Plaintiffs also make a claim for punitive damages.

Before this Court is Yamaha's motion to dismiss, transfer, or sever the claims of the Taber plaintiffs; Yamaha's motion to dismiss or strike portions of the complaint; and Yamaha's motion to dismiss plaintiffs' Sixth Cause of Action.

Plaintiffs' have made a Joint Motion for Transfer and Coordination under 28 U.S.C. § 1407 with plaintiffs in other actions to the Judicial Panel on Multidistrict Litigation on November 11, 2008.

Yamaha's motion to dismiss, transfer or sever the claims of the Taber plaintiffs is denied.

Yamaha's motion to dismiss or strike certain portions of the complaint is denied.

Yamaha's motion to dismiss plaintiffs' Sixth Cause of Action is granted.

I. Background

This case involves the Yamaha Rhino, a side-by-side, all terrain utility vehicle (the "Rhino"). In two separate incidents, plaintiffs allege that design defects in the Rhino caused it to tip over while being operated, injuring plaintiffs.

On June 21, 2007, 16 year-old Charles Kehr was riding in the passenger seat of a 2007 Rhino in Dutchess County, New York. (Compl. ¶ 14.) The vehicle rolled over while making a turn, causing the Rhino's rollbar to crush and sever Charles Kehr's right fingers. Charles Kehr's leg was also injured in the accident. Since the accident, Charles Kehr has undergone five surgeries to repair and reattach his fingers. (Id.) At all times referenced herein, Charles Kehr, and his father and legal guardian, Bruce Kehr, were residents of the State of New York and the County of Dutchess. (Id. ¶ 13.)

On August 20, 2005, 59 year-old Grover Taber was driving a 2005 Rhino in Oswego County, New York, when the vehicle tipped over, and caused injuries to Grover Taber's left foot, leg and shoulder. (Compl. ¶ 16.) Since the accident Grover Taber has undergone several surgeries and other medical treatment for these injuries. (Id.) Shirley Taber, Grover Taber's wife, also alleges that her husband's injuries have had a serious and detrimental impact on their relationship. At all times referenced herein, Grover and Shirley Taber were residents of the State of New York and the County of Oswego. (Id. ¶ 15.)

Yamaha began selling the Rhino within the United States in or around 2003. (Id. ¶ 21.) Plaintiffs allege that, due to inherent defects in the Rhino's design, including having a narrow track width, high platform, high center of gravity and wheels too small to maintain vehicle stability, the Rhino is excessively prone to tip over while being operated, even at low speeds. (Id. ¶ 22.) According to plaintiffs, when the Rhino does tip over, its unpadded, heavy steal roll cage, outlining both occupant compartments, can itself become very dangerous to vehicle occupants, causing severe crushing injuries and even death. (Id. ¶ 25.) Plaintiffs maintain that the Rhino's design and construction is in spite of the availability of safer design alternatives and vehicle testing methods that can reduce operator and occupant morbidity and mortality. (Id. ¶ 26.) Further, plaintiffs claim that the Rhino was never designed for use on all terrain, despite Yamaha's advertisement's encouraging consumers to drive the Rhino on and off road. (Id. ¶ 27.)

Plaintiffs allege that Yamaha knew, or should have known "as a leading manufacturer in the industry," of the Rhino's design defects during the time it marketed and sold Rhinos in the United States. (Id. ¶ 30.) It is plaintiffs' contention that had Yamaha "properly tested, considered and analyzed the safety hazards associated with the Rhino, it would have had specific knowledge of the Rhino's defects long before it put the Rhino into the stream of commerce." (Id. ¶ 33.)

Further, plaintiffs claim that since 2003, when the Rhino was first introduced to the market, Yamaha has been on notice of the Rhino's design defects because it received reports and consumer complaints about the Rhino's propensity to tip over, even when being driven at low speeds. (Id. ¶¶ 28, 38.) As these accumulating complaints were indicative of the Rhino's defects and a substantial product hazard, the plaintiffs allege that Yamaha was obligated, but failed, to report these complaints to the Consumer Product Safety Commission under the Consumer Product Safety Act. (Id. ¶ 40.) Instead of reporting the high incidence of Rhino tip-over accidents, Yamaha "continued to conceal material information about the Rhino's defects from the consuming public, including the plaintiffs." (Id. ¶ 44.)

Plaintiffs contend that, despite being on notice of the serious and dangerous defects in the Rhino's design, Yamaha did not take adequate steps to cure the hazard and protect consumer safety in the United States.¹ In September 2006, Yamaha sent a letter to some of the registered owners of Rhinos, discussing the vehicle's propensity to tip over. According to plaintiffs, however, this letter did not reach all Rhino owners, including the plaintiffs in this lawsuit. (Id. ¶ 46.) In July 2007, Yamaha updated the Rhino 2007 Owners' Manual. (Id. ¶ 47.) On August 27, 2007, Yamaha sent another letter to some of the registered Rhino, which mentioned a "special offer" for Rhino owners that included installation of doors and handholds on all 2004 to 2007 Rhinos. Yamaha allegedly recommended the installation of these new features to enhance occupant safety in the event of a vehicle roll over. (Id. ¶ 50.) Plaintiffs claim many Rhino users never received this letter and many of those who did who attempted to obtain the door or handhold installation were told by Yamaha that supplies were backordered. (Id. ¶ 49.) The plaintiffs in this lawsuit did not receive the August 27, 2007 letter or the information contained therein until after they were injured by their accidents in the Rhino. (Id. ¶ 51.)

Finally, plaintiffs claim that "Since 2003, Yamaha has misled the government, the public, and consumers about the safety of the Yamaha Rhino" and that "Had the users of the Yamaha Rhino, including plaintiffs, known the full extent of the risks and dangers associated with the use of the Yamaha Rhino, including that they were not safe to operate even at low speeds and in flat areas, said users would never have used the Yamaha Rhino and received the injuries that they did." (Id. ¶ 53, 55.)

DISCUSSION

I. Yamaha's Motion to Dismiss the Claims of the Taber Plaintiffs for Improper Venue is Denied.

Yamaha argues that because the claims of the Taber plaintiffs arise out of an incident that took place in Oswego County, New York, a location within the jurisdiction of the United States District Court for the Northern District of New York, this Court should dismiss the Taber claims as improperly venued under 28 U.S.C. § 1406. (Def.'s Br. at 3.) However, under 28 U.S.C. § 1391(a)(1) an action may be properly brought in any judicial district "where any defendant resides." 28 U.S.C. § 1391(a)(1) (West 2008). Under Section 1391(c) "For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c) (West 2008). Yamaha cannot, and indeed does not, dispute that it is a subject to personal jurisdiction in this district, as it is a corporation that transacts business in this district. Thus, venue is not improper under 28 U.S.C. § 1391. Yamaha's motion to dismiss the claims of the Taber plaintiffs on venue grounds is denied.

II. Yamaha's Motion to Transfer the Claims of the Taber Plaintiffs to the United States District Court, Northern District of New York is Denied.

In the alternative, Yamaha argues that the Taber claims should be severed and transferred to the Northern District under 28 U.S.C. § 1404(a). Yamaha submits that many of the witnesses and physical evidence in the Taber case will be found in Oswego County, where the accident occurred, and therefore considerations of convenience weigh in favor of transferring the Taber claims to the Northern District of New York. (Def.'s Br. at 4.)

Although some of the witnesses and physical evidence in the Taber case may be found in Oswego County, there is also a considerable overlap between the witnesses and documentary proof in the Kehr and Taber cases, e.g. Yamaha's documents and witnesses will likely be identical. Further, while considerations of witness convenience and the location of physical evidence are relevant to whether a case may be transferred under Section 1404(a), they are not dispositive. See Wyndham Assocs. v. Bintliff, 398 F.2d...