84 F. Supp. 3d 630
S.D. Ohio2015Background
- On March 16, 2010 a 2007 BMW 328xi (all-wheel-drive E90 with an under‑vehicle stiffener plate) caught fire in Jean Patrick’s garage; insurers (Great Northern & Pacific Indemnity) paid $1.36M and sued BMW AG (manufacturer) and BMW of North America (distributor) in subrogation.
- All experts agreed the fire originated in the engine compartment from ignition of accumulated organic debris (leaves/pine needles) trapped between the stiffener plate and exhaust components; parties dispute how debris accumulated (natural ingress vs. rodent nesting) and whether the plate’s design was defective.
- Plaintiffs’ experts: Kevin Keaton (SEA) concluded hot surface ignition possible given exhaust temperatures; Richard Clarke (consulting automotive/failure‑mode expert) opined the stiffener plate’s design permitted debris accumulation and proposed a perforated (self‑cleaning) alternative.
- Defendants’ experts: Dr. Robert Gates and others contend rodent (fox squirrel) activity explains the debris; BMW also relies on aerodynamic testing and large production numbers (E90 platform) to argue the risk was not foreseeable.
- Procedural posture: Defendants moved to exclude Clarke and for summary judgment on Counts II (OPLA against BMW NA), III (OPLA against BMW AG), and IV (breach of implied warranty); court denied motions to exclude Clarke and to strike two affidavits and denied summary judgment on Counts II–IV.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Richard Clarke’s expert testimony | Clarke is a qualified failure‑mode/fire causation expert and may offer opinions on causation, defect and an alternative design based on his experience and inspections | Clarke lacks design/ aerodynamic specialization and testing; opinions are unreliable and should be excluded under Rule 702/Daubert | Clarke is admissible: his 32 years of automotive/failure‑mode experience and methodology are sufficiently reliable and relevant; challenges go to weight, not admissibility (Motion to exclude denied) |
| Motions to strike post‑deposition affidavits (Slaba, Keefer) | Affidavits contradict prior deposition testimony and contain untimely expert opinions; should be stricken | Affidavits clarify or expand deposition answers; plaintiffs had opportunity to question at deposition | Court denied motions to strike: Slaba’s affidavit did not directly contradict deposition (it clarified ambiguous testimony); Keefer’s affidavit merely expanded opinions plaintiffs could have probed at deposition |
| Whether OPLA abrogates the common‑law implied warranty claim (Count IV) | Plaintiffs may plead implied warranty for purely economic loss in the alternative to OPLA; economic‑loss claims survive where OPLA compensatory recovery fails | Defendants: OPLA abrogates common‑law product claims seeking damages arising from design/defect; implied warranty should be dismissed | Court followed Huffman: plaintiffs may plead OPLA and common‑law implied warranty alternatively; summary judgment on Count IV denied |
| Existence of a design defect under OPLA (Count III) — foreseeable risk and risk/benefit | Clarke, Keaton and other evidence create triable issues that debris accumulation was a foreseeable risk and a perforated stiffener was a feasible safer alternative | BMW argues no foreseeable risk (rare or unique rodent event), extensive aerodynamic testing, and substantial benefits (structural, aerodynamic, emissions); alternative design untested | Genuine issues of material fact exist on foreseeable risk, consumer expectations, conformity to standards, benefits, and feasibility of alternative design; summary judgment denied on design defect claim |
| Supplier (BMW NA) derivative liability under OPLA (Count II) | Plaintiffs seek derivative liability if BMW AG is liable; point to ownership link | Defendants initially lacked disclosure, argued (at briefing) no basis for derivative liability | After Rule 7.1 disclosure showed BMW NA is an indirect wholly owned subsidiary of BMW AG, derivative‑liability prong satisfied; because factual disputes remain re: manufacturer liability, summary judgment denied on Count II |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping role for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert reliability inquiry applies to technical and other specialized experts)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (standards for admissibility under Rule 702)
- Sigler v. American Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) (expert qualification and limitations where expert scope exceeded experience)
- Rose v. Truck Centers, Inc., [citation="388 F. App'x 528"] (6th Cir. 2010) (expert qualifications assessed by relevance to specific questions)
- Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000) (failure to test an alternative design goes to weight, not admissibility)
- Krumpelbeck v. Breg, Inc., [citation="491 F. App'x 713"] (6th Cir. 2012) (consumer‑expectation evidence remains a relevant § 2307.75(B) consideration post‑OPLA amendment)