Yazdani v. BMW of N. Am., LLC

• Decision Date: 26 May 2016
• Docket Number: CIVIL ACTION No. 15-01427
• Citation: 188 F.Supp.3d 486
• Parties: Parvez & Razia Yazdani, Plaintiffs, v. BMW of North America, LLC, and BMW Motorrad USA, a Division of BMW of North America, LLC Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

188 F.Supp.3d 486

Parvez & Razia Yazdani, Plaintiffs,

v.BMW of North America, LLC, and BMW Motorrad USA, a Division of BMW of North America, LLC Defendants.

CIVIL ACTION No. 15-01427

United States District Court, E.D. Pennsylvania.

Signed May 26, 2016

Patrick A. Hughes, Raymond E. Mack, De Luca Levine, LLC, Blue Bell, PA, for Plaintiff.

Keith D. Heinold, Michael Salvati, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendant.

ORDER

TIMOTHY R. RICE, United States Magistrate Judge

AND NOW, on May 25, 2016, upon consideration of the parties' motions in limine and responses, it is ORDERED:

1. Defendant BMW of North America, LLC and BMW Motorrad USA's (collectively, "BMW") Motion in Limine to Preclude Certain Testimony of Plaintiffs' Expert Michael Zazula (doc. 23) is GRANTED. Based on his experience in mechanical engineering, fire investigations, and motorcycle and vehicle maintenance, Zazula can opine about the cause of the fire and the functioning of Plaintiff Parvez Yazdani's R1150 model motorcycle (the "motorcycle"). See Response (doc. 40), Ex. C, M. Zazula Curriculum Vitae; Motion, Ex. B, 3/29/2016 M. Zazula Dep. 7-12, 26; see also Motion at 5 (agreeing Zazula can opine about cause of fire and motorcycle functioning). However, because Zazula does not have specialized knowledge concerning the design of motorcycles, he cannot offer opinions about alternative designs for the motorcycle.¹ See Motion, Ex. A, M. Zazula Report at 5 (opining about how BMW could and should have designed the motorcycle), Ex. B, 3/29/2016 M. Zazula Dep. at 40-41 (he is not an expert in the design of motorcycles); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.1994) ("witness proffered to testify to specialized knowledge must be an expert"); Kerrigan v. Maxon Industries. Inc., 223 F.Supp.2d 626, 635 (E.D.Pa.2002) (although witness may qualify as expert based on variety of experiences and training, witness must have experience and training on subject matter of particular opinion to be offered).²

Zazula also shall be precluded from testifying about "internet reports of BMW air-cooled motorcycles that have caught fire while idling during traffic stops," M. Zazula Report at 5, unless he establishes that experts in his fields would reasonably rely on such reports. See M. Zazula Dep. at 91-92 (internet reports consist of BMW blogs); Motion, Ex. D, List of websites; see alsoFed. R. Evid. 703 (expert may rely on inadmissible data if experts in particular field would reasonably rely on such data); Loussier v. Universal Music Grp., Inc., No. 02–2447(KMW), 2005 WL 5644421, at *5 (S.D.N.Y. July 14, 2005) (expert could not rely on anonymous Internet postings because plaintiff failed to show experts in the relevant field reasonably relied on such postings).

2. BMW's Motion in Limine to Preclude Evidence of the Recall of R1100RSL Model Motorcycles (doc. 24) is GRANTED in part and DENIED in part. The Yazdanis cannot present evidence of the 1997 recall as evidence of a defect in Yazdani's R1150 model motorcycle because the incidents related to the recall are not substantially similar to the incident here. SeeB a rker v. Deere and Co., 60 F.3d 158, 162 (3d Cir.1995) (plaintiff can introduce evidence of other accidents as direct proof of a design defect only if he demonstrates those incidents were "substantially similar"). The 2007 recall involved a different model motorcycle, the R1100 motorcycle, with a different alleged design defect. The R1100 motorcycle had a full front fairing, or a shell placed over the motorcycle frame, that could catch fire if the exhaust system's temperature rose considerably while the motorcycle was at a standstill. See Motion, Ex. C, 9/29/1997 Letter re: Recall Campaign at 1-2; Ex. B, Report of K. Breen at 8. Alternatively, Yazdani's motorcycle did not have a fairing, but rather an oil sight glass that allegedly could leak oil if the exhaust system overheated with the motorcycle in a standstill position. See Motion, Ex. A, Michael Zazula Report at 3-4. Evidence of this recall cannot be admitted to prove Yazdani's motorcycle was defective; any probative vale of this evidence is substantially outweighed by the risk of confusing the jury about the defective condition at issue here. SeeFed. R. Evid. 403 ; Jordan v. General Motors Corp., 624 F.Supp. 72, 77 (E.D.La.1985) (recall campaign involving different model year and distinctly different design defect irrelevant).

The Yazdanis, however, can present limited evidence related to the recall to show BMW had notice that the warnings in its rider manuals were potentially inadequate. Like the rider's manual provided with Yazdani's motorcycle, the rider's manual provided with the R1100 motorcycles warned "the rider not to leave the engine running unnecessarily when the motorcycle is stationary and to ride off immediately after starting." 9/29/1997 Letter re: Recall Campaign at 2; compare Motion for Summary Judgment (doc. 15), Ex. C, Rider's Manual at Yazdani000950 ("Do not allow the engine to idle unnecessarily or for prolonged periods. –Risk of overheating or fire. Ride away immediately after starting the engine."). Nevertheless, BMW learned, after conducting an investigation of incidents involving the R1100 motorcycles, that some riders were running their motorcycles unattended at a standstill despite the warnings in the manual. See 9/29/1997 Letter re: Recall Campaign at 2. In response, BMW voluntarily mailed additional warnings, including a label that could be affixed to the motorcycle and an insert to the rider's manual, to R1100 motorcycle owners. See id. at 3. Given the similar warnings in the manuals provided with the R1100 and R1150 model motorcycles, the Yazdanis may reference the 1997 letter to establish that: (1) the R1100 motorcycle had a warning in its rider's manual like the warning in the Rider's Manual with Yazdani's motorcycle; (2) BMW knew riders of this motorcycle had left the motorcycle running at a standstill despite warnings about the risk of fire in the rider's manual; and (3) BMW responded by sending a label that could be affixed to the motorcycle and an insert. See In re Tylenol (Acetaminophen) Mktg., Sales Practices & Products Liab. Litis., No. 12–7263, 181 F.Supp.3d 278, 315, 2016 WL 1569719, at *26 (E.D.Pa. Apr. 19, 2016) (notice may be shown by evidence of prior incidents under similar circumstances) (citing Gumbs v. Int'l Harvester. Inc., 718 F.2d 88, 97 (3d Cir.1983) ); Benedi v. McNeil – P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir.1995) ("When prior incidents are admitted to prove notice, the required similarity of the prior incidents to the case at hand is more relaxed than when prior incidents are admitted to prove negligence.").

To avoid any unfair prejudice and confusion, the Yazdanis shall be precluded from using the term "recall" and all references to that term shall be redacted from the 1997 letter. If BMW requests, I also shall provide an instruction limiting the jury's consideration of this evidence to the issue of notice. SeeFed. R. Evid. 105.

3. BMW's Motion in Limine to Preclude Certain Propositions Relating to Reliance on the Rider's Manual (doc. 25) is GRANTED for the reasons discussed in my May 12, 2016 Memorandum Opinion (doc. 54). Mr. Vigilante cannot testify that because second-hand users may never obtain the manual and users may not read all or parts of the manual, it was unreasonable for BMW to rely on its Rider's Manual. Such evidence has minimal relevance to this case, which involves a rider who possessed and read the Rider's Manual, and any relevance is substantially outweighed by the danger of confusing the jury on issues not in dispute. SeeFed. R. Evid. 403.

4. BMW's Motion in Limine to Preclude Certain Testimony of Plaintiffs' Expert William Vigilante, Jr. (doc. 26) is GRANTED. Because Vigilante does not have "specialized expertise" in motorcycle or vehicle design and has set forth alternative designs solely based on Zazula's opinions, which are inadmissible as discussed above, he is precluded from presenting any opinions about alternative designs for the motorcycle. See Motion, Ex. C, W. Vigilante, Curriculum Vitae, Ex. B, W. Vigilante Dep. at 26-27, 88; Response (doc. 42) at 6 (Vigilante "does not plan to offer any independent opinion on the proposed alternative design proffered by Michael Zazula"); see also supra¶ 1; In re Paoli, 35 F.3d at 741 ; Kerrigan, 223 F.Supp.2d at 635.

5. BMW's Motion in Limine to Preclude Plaintiffs' Use of the Consumer Expectations Test (doc. 27) is GRANTED. The consumer expectations test is inappropriate because the fire hazard posed by the motorcycle's alleged defective design is beyond the everyday understanding of the ordinary consumer.³ SeeTincher v. Omega Flex, Inc., 628 Pa. 296, 104 A.3d 328, 388 (2014) (consumer expectations test should not be applied to a product of relatively complex design whose danger is "outside the ordinary consumer's contemplation"); Soule v. Gen. Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298, 308 (1994) ("consumer expectations test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design ") (italics in original); see also Motion, Ex. B, W. Vigilante Report at 13 ("Most people would not be expected to appreciate or anticipate the chain events and characteristics of the BMW R1150 R motorcycle that creates the fire potential without adequate warning.").

6. BMW's Motion in Limine to Preclude Evidence of Other Incidents (doc. 28) is DENIED in part and GRANTED in part. The Yazdanis are precluded from presenting evidence of reported incidents involving different model motorcycles, as well as any unknown "R" series model motorcycles, because they have failed to establish these motorcycles are substantially similar to Yazdani's R1150 model...