Zsa Zsa Jewels, Inc. v. BMW of N. Am., LLC

• Decision Date: 10 October 2019
• Docket Number: 15-CV-6519 (ILG) (RLM)
• Citation: 419 F.Supp.3d 490
• Parties: ZSA ZSA JEWELS, INC., Plaintiff, v. BMW OF NORTH AMERICA, LLC; Bridgestone Americas Tire Operations, LLC; Morris County Auto Sales, Inc. a/k/a BMW of Morristown ; and Open Road of Edison, Inc. a/k/a Open Road BMW, Defendants.
• Court: U.S. District Court — Eastern District of New York

419 F.Supp.3d 490

ZSA ZSA JEWELS, INC., Plaintiff,

v.BMW OF NORTH AMERICA, LLC; Bridgestone Americas Tire Operations, LLC; Morris County Auto Sales, Inc. a/k/a BMW of Morristown ; and Open Road of Edison, Inc. a/k/a Open Road BMW, Defendants.

15-CV-6519 (ILG) (RLM)

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

Signed October 10, 2019

Filed October 11, 2019

David J. Tayar, Pro Hac Vice, Will Shuman, Tayar, Shuman & Associates LLP, New York, NY, John R. Downey, Pro Hac Vice, Nathan Carmine Favreau, Pro Hac Vice, Joseph Bree Burns, Pro Hac Vice, Rome, McGuigan Sabanosh, P.C., Hartford, CT, for Plaintiff.

Philip Semprevivo, Joseph Kim, Biedermann Hoenig Semprevivo, PC, New York, NY, for Defendants.

MEMORANDUM AND ORDER

GLASSER, Senior United States District Judge:

On November 13, 2015, Plaintiff Zsa Zsa Jewels, Inc. ("Plaintiff" or "Zsa Zsa Jewels" ) commenced this products liability action¹ against Defendants BMW of North America, LLC ("BMW" ); Bridgestone Americas Tire Operations, LLC ("Bridgestone" ); Morris County Auto Sales, Inc. a/k/a BMW of Morristown ("BMW of Morristown" ); and Open Road of Edison, Inc. a/k/a Open Road BMW ("Open Road" ). (See Compl., ECF No. 1). Plaintiff amended the complaint on June 14, 2016 (see Am. Compl., ECF No. 32), and later voluntarily dismissed its claims against Bridgestone, BMW of Morristown, and Open Road pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) (see ECF Nos. 82, 85). The only remaining Defendant is BMW, hereinafter referred to as "Defendant" .

Pending before the Court are Defendant's motions: (i) to preclude the testimony of Plaintiff's proposed expert, Peter J. Leiss ("Leiss" ), under Federal Rule of Evidence 702 ; (ii) for summary judgment; and (iii) for sanctions under Federal Rule of Civil Procedure 11. (See ECF No. 86). For the reasons that follow, Defendant's motion to preclude expert testimony is granted; Defendant's motion for summary judgment is granted in part and denied in part; and Defendant's motion for sanctions is denied without prejudice.

STANDARD OF REVIEW

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is material if it might affect the outcome of the case under governing law." Fireman's Fund Ins. Co. v. Great American Ins. Co. of New York , 822 F.3d 620, 631 n. 12 (2016) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Id. (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). "In making this determination, the Court ‘must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ " Id. (quoting Beyer v. County of Nassau , 524 F.3d 160, 163 (2d Cir. 2008) ); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson , 477 U.S. at 255, 106 S.Ct. 2505. " ‘The evidence of the non-movant is to be believed’ to the extent that a jury could reasonably believe it." Grant v. City of New York , 15-CV-3635 (ILG) (ST), 2019 WL 1099945, at *4 (E.D.N.Y. Mar. 8, 2019) (quoting Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). "Conversely, ‘the court ... must disregard all evidence favorable to the moving party that the jury is not required to believe.’ " Id. (quoting Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

BACKGROUND

Plaintiff is a New York corporation that "design[s], produc[es], and sell[s] hand-crafted jewelry." (Am. Compl. ¶¶ 3, 8). In 2011, Plaintiff's sole owner, Meena Catalano ("Catalano" ), leased a 2012 BMW X3 designed and manufactured by Defendant (the "Subject Vehicle" or the "Vehicle" ) from BMW of Morristown in Morristown, New Jersey. (See Def. 56.1 SOF ¶ 1, ECF No. 86-1; Def. Ex. B, ECF No. 86-5; Catalano Dep. at 37:9-10).² On November 6, 2013, the Vehicle caught fire while it was being driven by Plaintiff's employee, Tiffany Sobers ("Sobers" ), resulting in the destruction of inventory that the Vehicle was transporting. (See Def. 56.1 SOF ¶¶ 3-18). The fire originated in the Vehicle's right rear tire and was caused by a lack of adequate air pressure in the tire. (See id. ¶¶ 26, 34). Sobers testified that she did not see any low tire pressure warnings on the dashboard prior to the fire. (See Sobers Dep. at 226:3-15). Plaintiff alleges that the 2012 BMW X3's built-in tire pressure monitoring system ("TPMS" ) is defectively designed and/or manufactured because, under certain conditions, it may fail to warn that the vehicle's tires have inadequate pressure. Plaintiff further alleges that this defect caused the fire because it resulted in Sobers being unaware that the Vehicle's tire did not have adequate pressure—the reasonable implication being that, had Sobers seen the warning, she would have stopped driving before the low tire pressure condition caused the fire.

I. The 2012 BMW X3 Tire Pressure Monitoring System

Before turning to the facts of this case, it is necessary to review some background information concerning tire pressure monitoring systems.

A TPMS is a system required to be installed on most passenger cars pursuant to Federal Motor Vehicle Safety Standard 138 ("FMVSS 138" ) (codified at 49 C.F.R. § 571.138 ), which warns the operator of a vehicle if there is a significant loss of tire pressure by illuminating a warning telltale located in view of the driver. Tire pressure monitoring systems are a necessary component of automotive safety when driving with "run flat" tires, which, as their name suggests, enable the vehicle to continue to be driven for limited distances even if deflated. This is because a driver cannot tell just by looking at a run flat tire whether the tire is low on air pressure. (See Leiss Dep. at 226:3-11).

Under FMVSS 138, a TPMS must activate a warning if the pressure in any tire descends to a level that is equal to or less than either of the following: (1) a fixed minimum which, for passenger vehicles, is either 20 or 23 psi (pounds per square inch), see FMVSS 138 S4.2(a) & Table 1 (the "Minimum Activation Rule" ); or (2) 75% of the manufacturer's recommended cold inflation pressure, see id. S4.2(a) (the "75% Rule" ). It is undisputed that the design of the TPMS installed in the 2012 BMW X3 (the "TPMS Design" ) complies with the Minimum Activation Rule, as it will display a warning if the pressure in any tire descends to 23 psi or below. (See Yeldham Supp. Rep. at 2).³ Plaintiff contends, however, that the TPMS Design does not comply with the 75% Rule because its manual "reset" feature theoretically allows the driver to operate the vehicle without seeing a low pressure warning, even while the pressure existing in the tires is less than 75% of the recommended cold inflation level.

A manual "reset" feature is a feature installed on the 2012 BMW X3 that permits the driver to inform the computerized TPMS that the pressure level currently existing in the tires should be accepted as the new baseline. (See Yeldham Supp. Rep. at 2). If the TPMS is reset while the tires are at a certain pressure level, deviations from that pressure level that are greater than 25% will trigger a new warning, in accordance with the 75% Rule. (See Yeldham Supp. Rep. at 2). For example, if the TPMS is reset while the tires on the vehicle have a pressure level of 35 psi, then, in accordance with the 75% Rule, the system will trigger a low tire pressure warning when the pressure in any one of those tires drops to 26.25 psi, which is 75% of 35 psi. (See id. ). If there is a loss of tire pressure triggering a warning, merely re-inflating the tire will not extinguish the warning; the system must be reset after the tire is re-inflated for the warning to go away. (See Leiss Rep. at 6, Def. Ex. P, ECF No. 86-19 at 9; Leiss Dep. at 136:3-6).⁴

In accordance with the Minimum Activation Rule, the TPMS will continue to display a low pressure warning if the pressure in any tire is less than 23 psi or below, even if the system is manually reset. (See Yeldham Supp. Rep. at 2). However, for pressure levels above 23 psi, it is possible for a driver to manually reset the TPMS before having re-inflated the tires to their proper pressure—even if the tire pressure is less than 75% of the recommended cold inflation pressure level. If one resets the system in this manner, it will inform the system that the underinflated pressure level should be accepted as the new baseline, allowing the operator to resume driving without seeing a warning light. (See Leiss Rep. at 6-11, 14; Yeldham Supp. Rep. at 2). What this means, in plain English, is that, for pressure levels above 23 psi, the reset function can theoretically be used as a kind of ‘off-switch,’ allowing the driver to shut off the warning telltale even when the 75% Rule would require it to be displayed. For this reason, the 2012 BMW X3 Owner's Manual explicitly instructs operators to reset the system only after the tire pressure is restored to its correct level; "otherwise, reliable signaling of a flat tire is not ensured." (Owner's Manual at 88; see Yeldham Supp. Rep. at 2).

Leiss demonstrated how the 2012 BMW X3's reset feature can be used as a kind of TPMS ‘off-switch’ by testing an exemplar 2012 BMW X3. First, Leiss deflated the test vehicle's left rear tire to 25 psi, which triggered a low tire pressure warning. (See Leiss Rep. at 8).⁵ Next, Leiss manually reset the test vehicle's TPMS without re-inflating the left rear tire (see id. at 10), which caused the vehicle to accept 25 psi as the new baseline ...