Boateng v. BMW of North America, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------X

GODWIN BOATENG,

Plaintiff,

-against-

MEMORANDUM AND ORDER

BAYERISCHE MOTOREN WERKE

AKTIENGESELLSCHAFT, a German 17-cv-00209 (KAM)(SIL)

Corporation,

BMW OF NORTH AMERICA, LLC,

BMW MANUFACTURING CO., LLC,

BMW OF NORTH AMERICA, INC.,

BMW GROUP, INC., and BMW (US) HOLDING

CORPORATION,

Defendants.

-------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Godwin Boateng (“Plaintiff” or “Mr. Boateng”)

suffered a partially severed thumb of his dominant right hand when

the soft-close automatic door (“SCAD”) of his 2013 BMW X5 (“Subject

Vehicle”) closed on his hand. The Subject Vehicle was designed by

Defendant Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”),

assembled by Defendant BMW Manufacturing Co., LLC (“BMW MC”), and

distributed by Defendant BMW of North America, LLC (“BMW NA”) (all

together, “Defendants” or “BMW”). Mr. Boateng brought this

diversity action against BMW asserting a number of claims including

products liability (design, manufacturing, and failure to warn

defects), negligence, breach of express and implied warranties,

negligent misrepresentation, fraudulent concealment, negligent

infliction of emotional distress, in addition to violations of the

federal Magnuson-Moss Warranty Act and New York General Business

Law. (ECF No. 1, Complaint (“Compl.”).) After discovery closed,

BMW moved for summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure, and to preclude testimony by Plaintiff’s

expert, Dr. James Pugh (“Dr. Pugh”). (ECF No. 120, Notice of BMW’s

Motion for Summary Judgment.)

For the reasons set forth below, Defendants’ motion to

preclude Dr. Pugh’s testimony is DENIED. Defendants’ motions for

summary judgment are GRANTED as to Plaintiff’s manufacturing

defect, breach of express warranty, negligent misrepresentation,

fraudulent concealment, the Automobile Information Disclosure Act,

and negligent infliction of emotional distress claims.

Defendants’ motions for summary judgment are DENIED as to

Plaintiff’s design defect and failure to warn claims, as well as

the breach of implied warranty, Magnuson-Moss Warranty Act, and

New York General Business Law claims.

Background

The Court has considered the facts set forth below from

the parties’ declarations and exhibits attached thereto, and the

Rule 56.1 Statements of Facts and opposing 56.1 Statements.1 The

1 (See ECF Nos. 121; BMW’s Memorandum for Summary Judgment (“BMW Mot. for

Summ. J.”); 122, BMW’s 56.1 Statement (“BMW 56.1”); 123-1-123-11, Joseph Park

Declaration in Support of BMW’s 56.1 Statement (“Park Decl.”) and exhibits

Court must and will construe the facts in the light most favorable

to the nonmoving party. See Capobianco v. City of New York, 422

F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, the

parties consider the following facts undisputed or the opposing

party has not proffered evidence in the record to dispute them.

I. Factual Background2

On July 6, 2016, Plaintiff Godwin Boateng suffered an

injury to his right hand. (ECF No. 124, Pl. Resp. 56.1 at ¶¶ 1-

17.) Plaintiff was exiting from the driver’s side door of the

Subject Vehicle, a 2013 BMW X5, on a narrow street when he moved

back to avoid oncoming traffic. (Id.) His back was to the door,

his right hand behind his back, and most of his fingers were

resting on the exterior handle of the door as he positioned the

door away from oncoming traffic. (Id.) Without warning, the door

“just automatically closed” on Mr. Boateng’s right thumb and

amputated about half of it immediately. (Id.)

A. The Subject Vehicle SCAD System

attached thereto; 124, Plaintiff’s Response to BMW’s 56.1 Statement (“Pl.

Resp. 56.1”); 125-1-125-20, Avi Cohen Declaration in Response to BMW’s 56.1

Statement (“Cohen Decl.”) and exhibits attached thereto; 127, Plaintiff’s

Memorandum in Opposition to BMW’s Summary Judgement (“Pl. Mot. in Opp’n.”);

126, BMW’s Reply to Plaintiff’s 56.1 Statement of Additional Facts (“BMW 56.1

Reply”); 120, BMW’s Reply in Support for Summary Judgment (“BMW Reply

Mot.”).)

2 For purposes of summary judgment, statements in a movant’s statement of

undisputed material facts pursuant to Local Civil Rule 56.1(a) are deemed

admitted to the extent that they are: (1) followed by citation to supporting

evidence which may be considered on summary judgment pursuant to Federal Rule

of Civil Procedure 56(c); and (2) not “specifically controverted by a

correspondingly numbered paragraph” and/or evidence in the nonmovant’s

counterstatement under Local Civil Rule 56.1(b). See Local Civil Rule

56.1(c), (d).

The Subject Vehicle was designed by Defendant Bayerische

Motoren Werke Aktiengesellschaft (“BMW AG”), assembled by

Defendant BMW Manufacturing Co., LLC (“BMW MC”), distributed by

Defendant BMW of North America, LLC (“BMW NA”), and sold by non-

defendant Rallye BMW dealership (the “dealership”). (Id. ¶¶ 46-

56.) In other words, BMW AG designed the Subject Vehicle and the

“soft-close automatic door” (SCAD) technology. (ECF No. 124, Pl.’s

Resp. 56.1 at ¶¶ 46-50.) BMW AG contracts the manufacture of SCAD

to a company called Kiekert AG. (Id.) BMW MC installs the SCAD in

the BMW vehicles. (Id. ¶ 57.) BMW NA is responsible for the

distribution of completed vehicles in the United States and “deals

with the SCAD in the way of replacement parts [and] quality

problems.” (Id.)

SCAD references the “soft-close automatic door” feature

included in some BMW vehicles, including the Subject Vehicle’s

model. The SCAD is designed to assist the user of the vehicle, in

providing “comfortable door closing without making noise and to

close the door safely at any time.” (Id. ¶ 6.) Per Federal Motor

Vehicle Safety Standard (“FMVSS”) 206, a door must have a “fully

latched position and a secondary (partially closed) latch

position.” (ECF No. 124, Pl. Resp. 56.1 ¶ 10.) Although the

secondary latch is typically present to minimize the ejection of

occupants through an unintentional door opening, the secondary

latch is also the location where the SCAD engages. (Id. ¶¶ 10,

194.)

The “BMW Technology Guide” states that, upon partial

closure of the door to the secondary latch position and “[w]hen

the door is within approximately 6 [millimeters] (mm) of the lock,

a sensor activates an electric motor that pulls the door firmly

and quietly close[s] and secures it.” (ECF No. 123-8, Exh. H,

James Pugh Expert Report (“Pugh Report”) at 2.) The parties differ

in whether the foregoing statement is true. Defendants assert

that the SCAD engages when a door reaches the “secondary” latch

position. The sensor then “activate[s] an electric motor that

pulls the door firmly and quietly closes and secures it.” (ECF

No. 124, Pl. Resp. 56.1 ¶¶ 12-14.) To fully close the door, the

SCAD’s “cinching mechanism causes the door to travel approximately

6 mm.” (Id. ¶ 14; ECF No. 123-11, Exh. K, Donald Parker Report

(“Parker Report”) ¶ 27.) In response, Plaintiff identifies

inconsistencies between Defendants’ various experts and BMW

representatives’ opinions on the precise distance between the door

and the SCAD at which the SCAD begins to engage. (Id. ¶ 13.) In

particular, Plaintiff points to Klaus Bruecklmeier, a BMW AG

employee in the doors and entry development division, who stated

at his deposition that the stated gap can exceed 8 millimeters.

(Id.; ECF 127-7, Exh.7, “Klaus Bruecklmeier Deposition Transcript

(“Bruecklmeier Dep. Tr.”), at 15, 88-89.)

As discussed further below, the parties also dispute

whether the SCAD disengages and releases the door if “an

obstruction”—like a thumb— “prevents the door from fully closing

within the force capability of the SCAD mechanism.” (ECF No. 124,

Pl. Resp. 56.1 ¶ 20.)

1. Testing & Requirements of the SCAD System

In 2001, BMW AG retained a German firm, Technical Control

Board (“TUV”), which specializes in testing and approving

automotive equipment in order to evaluate the safety of SCAD. (ECF

Nos. 124, Pl.’s Resp. 56.1 ¶¶ 84-91; 122, Def. 56.1 Reply ¶ 84-

91.)3 TUV measured “the gap from the time . . . self-closing

begins” to when the SCAD fully closes the door in order to

determine whether the closing mechanism posed a risk of injury

from “pinching”.4 (ECF No. 122, Def. Reply ¶ 86.) TUV found that

the point of activation for the SCAD system was a distance of 6

millimeters from the fully closed position plus a 1-millimeter

tolerance, meaning that if a user brings the door to a distance of

roughly 6 to 7 millimeters away from full closure, the door

automatically closes by itself. (Id.) TUV provided BMW a one-

page internal memo that was dated February 8, 2001, signed by an

3 The Court refers to Defendants’ Reply 56.1 Statement for facts that are

undisputed between the parties, because the reply addresses the Plaintiff’s

Counter Statement facts that Defendants do not dispute.

4 Although Defendant appears to describe the potential injury from the SCAD

closure as “pinching,” the parties do not dispute Plaintiff suffered a

partial amputation of his thumb.

employee that concluded that “the [SCAD] system was rated as

sufficiently safe with regards to the danger of pinching” and “the

gap in the door provides sufficient safety against the risk of

entrapment when SCAD is activated.” (Id. ¶¶ 83, 88-89.) The TUV’s

internal memo stated that the SCAD was “inspected for possible

risk of jamming.” (Id. ¶ 90; see also ECF 127-7, Exh. 7,

Bruecklmeier Dep. Tr. at 110-112.)

2. Government Inquiries into SCAD

In 2016, a German regulatory agency called the

Kraftfahrt-Bundesamt (“KBA”) that oversees automotive vehicles

began investigating the SCAD system. (Id. ¶¶ 92-93.) KBA was

concerned that BMW “had no pinching protection other than [one]

could open the door again” and that injuries occurred despite “the

lesser gaps” in SCAD systems. (Id. ¶¶ 94-99.) In response to the

KBA’s investigation, BMW AG employee Bruecklmeier confirmed that

“pinching” injuries were possible despite the 6-7 millimeters

activation gap. (ECF 127-7, Exh. 7, Bruecklmeier Dep. Tr. at

162.)5 Bruecklmeier explained that “if the finger is already in

the gap, and the door is already pressed with many thousands of

newtons . . . I can go ahead and push the door into the place where

5 Because Defendants state that Plaintiff “mischaracterize[s] the KBA letter

and the [Bruecklmeier] testimony about it, the Court directly refers to the

deposition transcript of Bruecklmeier. (ECF Nos. 126, Def. 56.1 Reply ¶¶

102-04; see generally 127-7, Exh. 7, Bruecklmeier Dep. Tr.)

the pre-latch gets engaged and SCAD starts . . .” completing the

closure, but “not without a prior pinching.” (Id. at 178.)

In the KBA correspondence, there have been at least 44

reports of injuries “related to SCAD” (ECF No. 127-7, Exh. 7,

Bruecklmeier Dep. Tr. at 146), although the Defendant asserts that

“it remains in dispute that SCAD caused such incidents.” (ECF No.

126, Def. 56.1 Reply ¶¶ 59-61.) Peter Baur, the Manager of Product

Analysis for BMW NA, reported knowing about a dozen SCAD-related

injuries from the Subject Vehicle’s SCAD model. (ECF Nos. 126,

Def. Reply 56.1 ¶ 61; see 125-5, Exh. 5, “Peter Baur Deposition

Transcript (“Baur Dep. Tr.”) at 297.)6 The thumb is the predominant

finger injured in this set of SCAD incidents acknowledged between

the parties. (ECF No. 126, Def. 56.1 Reply ¶ 62.) BMW NA is aware

of 21 injuries potentially related to SCAD. (Id. ¶ 64.) BMW has

not implemented any additional safety measures in response to SCAD-

related injuries. (Id. ¶ 63.)

The KBA also raised concerns about whether the warning

presented in the owner’s manual was sufficient to ensure that users

would safely use the SCAD. (ECF 127-7, Exh. 7, Bruecklmeier Dep.

Tr. at 174.)7 Specifically, KBA “alleged” that BMW owners who did

6 “We searched our files according to the discovery and with limitation of

E70, as this is Soft-Closure, which we understand is identical to the

Boateng. And I testified before, I think it was like a dozen injuries

here[.]” (ECF No. 125-5, Exh. 5, Baur Dep. Tr. at 297.)

7 Q. So am I correct that in the last paragraph of this, KBA is telling --

alleging that the owner's manual is not accessible to people who don't know

about it and, therefore, those people could be injured because they haven't

not know about the owner’s manual, and therefore had not read it,

could be injured by SCAD. (Id.)

3. Vehicle Warning Manual

BMW AG created and assembled the owner’s manual that

came with the Subject Vehicle. (ECF Nos. 126, Def. Reply 56.1 7

139; see aiso 123-7, Exh. G, Owner’s Manual at 3.) The SCAD

warning appears as follows:

Doors

Automatic soft closing

To close the doors, push lighthy. It is closed au-

lornatically

rN Danger of pinchirg

= Wake sure that the clos ng path of the

doors is clear, otherwise, Injuries may result.

The warning language about the SCAD is in the owner’s

manual and displayed next to a warning symbol-an exclamation point

within a yellow triangle within a square. (Id.) The warning

informs the owner about the vehicle’s automatic soft closing

feature, advises owners to close the doors lightly, notifies them

about the “danger of pinching,” and to “[mjake sure that the

closing path of the door is clear; otherwise, injuries may result.”

(Id.) BMW dealers are also given a “safety tip card” that mentions

read the owner's manual; is that what it's basically -- is that what they're

alleging?

A. MR. SEMPREVIVO: Objection.

A. That is what KBA alleges.

Q. Okay, that's all -- that's all I was asking.

A. Now we got it clarified.

“keeping hands clear of doors,” but dealers are not instructed to,

and there is no evidence that dealers did, communicate any of those

additional “safety tip” warnings to customers. (ECF Nos. Def.

Reply 56.1 ¶ 138; see also 125-5, Exh. 5, Baur Dep. Tr. at 66-67.)

B. The Subject Vehicle and Accident

Plaintiff purchased the Subject Vehicle on or about

December 20, 2013. (ECF No. 124, Pl.’s Resp. 56.1 ¶ 28.) After

buying the Subject Vehicle, Plaintiff became aware of the SCAD

feature when he noticed that the car doors "automatically pulled

shut.” (Id. ¶ 31.) The Subject Vehicle came with an owner’s

manual that Plaintiff did not read at any point prior to his

injury. (Id. ¶ 38-40.)

On July 6, 2016, at approximately 3:00 PM, Plaintiff

drove his friend to her house, using the Subject Vehicle. (Id. ¶

44.) Upon arrival, Plaintiff parked on the narrow street adjacent

to his friend’s house and exited the vehicle from the driver’s

side, facing the roadway. (Id. ¶¶ 48-49.) Plaintiff described

his positioning as: “With his back facing the driver side door,

Plaintiff’s right hand was positioned behind his back with most of

his fingers resting on the handle as he positioned the door away

from oncoming traffic.” Plaintiff observed an approaching vehicle

and moved the door backward to avoid the oncoming traffic. (Id.

¶ 55.)

With his back still to the door, Plaintiff stepped

backward, “trying to close the door to make way for the truck” and

“at some point . . . the SCAD took over.” (Id. ¶¶ 57-58; ECF No.

123-6, Exh. F, Godwin Boateng Deposition Transcript (“Boateng Dep.

Tr.”) at 153.) Mr. Boateng does not recall that any other part of

his body contacted the Subject Vehicle’s door during his accident.

(ECF No. 123-6, Exh. F, Boateng Dep. Tr. at 154.) He also never

registered “a moment where [he] felt that the SCAD function was

starting to operate” and did not “struggle[] to get out” from the

door. (Id. at 155-56.) The closing door “immediately amputated”

Plaintiff’s thumb. (Id. 157.)

Plaintiff underwent two surgeries, initially in an

effort to reattach his thumb and then for a right thumb amputation.

(ECF No. 124, Pl.’s Resp. 56.1 ¶ 32.) As a result of the incident,

Plaintiff’s right thumb is shortened by approximately one

centimeter, is slightly whitened, and is hypersensitive. (Id. ¶¶

38-42.) Plaintiff, a software engineer at the time, did not work

for a year following his accident. (Id. ¶¶ 18, 20.) He has

changed the way he types and avoids making presentations that

require gesticulation. (Id. ¶¶ 21-26.) He has trouble holding

things and struggles to dress himself. (ECF No. 123-6, Exh. F,

Boateng Dep. Tr. at 154.) He has not consulted with any therapists

or psychologists since his accident, though he has thought about

it. (Id. at 264.) He is “very, very self-conscious to the

condition of [his] hand” and tries “as hard as possible to avoid

people looking at it, commenting on it or seeing [his hand].” (Id.

at 265).

A. Expert Opinions

1. Dr. James Pugh, Plaintiff’s Expert, Engineer

On February 3, 2020, Dr. James Pugh, a biomechanical and

biomedical engineer who was retained as Plaintiff’s expert, met

with Plaintiff and inspected the Subject Vehicle, issuing an expert

report on February 16, 2020. (ECF Nos. 124, Pl.’s Resp. 56.1 ¶

62; 123-8, Exh. H, Pugh Report.) Dr. Pugh opined that the Subject

Vehicle’s “lack of any safety measures,” considering the existence

of safer “similar SCAD features” in other vehicles, “falls nothing

short of a design defect.” (ECF No. 123-8, Exh. H, Pugh Report at

3.) He stated that if BMW had conducted more testing, “inherent

risks and dangers identified would undoubtedly have been

discovered, and that similar safety measures such as that on

Mercedes-Benz vehicles would have been installed in BMW vehicles,

or sensors designed by BMW itself.” (Id. at 3.)

Dr. Pugh observed a distance of 6 millimeters between

the Subject Vehicle door and the door jamb at the time the SCAD

was activated. (Id. at 6.) Dr. Pugh placed a rubber dog toy known

as a “KONG” into the Subject Vehicle’s door to test the SCAD

mechanism, stating that the “rubber cylinder of varying dimensions

simulating a human finger was used to provide resistance to the

soft-close mechanism”. (Id. at 6-7.) Dr. Pugh explained that the

dimensions of the KONG were “not really dissimilar to [those of]

a thumb.” (ECF No. 123-9, Exh. I, James Pugh Deposition Transcript

(“Pugh Dep. Tr.”), 110.) When the Subject Vehicle door was “gently

closed” on the KONG up to the 6-millimeters activation point, the

SCAD activated and “crushed” the KONG. (ECF No. 123-8, Exh. H,

Pugh Report at 7.) Dr. Pugh performed the same test with a small

sausage, “with similar dimensions and consistency like a human

thumb,” and the SCAD cut the sausage in half. (Id; ECF No. 123-9,

Exh. I, Pugh Dep. Tr. 157.) He did, however, acknowledge that

unlike a thumb, there was no bone in the sausage. (Id.) Next,

Pugh placed the KONG and the sausage in the window of the Subject

Vehicle, which uses a different automatic closing system. (Id.)

The automatic closing mechanism on the window sensed the physical

resistance of the objects and retracted, leaving the items intact.

(Id.) Dr. Pugh opined that the soft-close doors “fail[ed] to

protect items in the path of the door jamb by continuing to close

the doors forcefully in spite of an item such as a finger, a KONG,

a sausage, or a similarly sized item present in the door jamb.”

(Id. at 3.)

Next, Dr. Pugh examined his own 2006 Mercedes-Benz S-

Class S430 Sedan, which incorporates an electronic door closing

system known as “Power Closing Assist” or “PCA.” (Id. at 7.) The

PCA uses a mechanical design similar to SCAD, but the PCA does not

activate at the first latch, and instead requires a further push

to activate the electronic closing mechanism. (ECF Nos. 126, Def.

Reply 56.1 ¶ 149; 123-9, Exh. I, Pugh Dep. Tr. at 215, 234-35.)

The exact distance required to initiate PCA is disputed by the

parties, but Dr. Pugh claims that it is 2.5 millimeters. (Id.)

Dr. Pugh placed the KONG in the door jamb of the Mercedes, but the

PCA did not activate to cinch the door shut. (ECF No. 126, Def.

Reply 56.1 ¶ 151.) Dr. Pugh concluded that the 2006 Mercedes-Benz

soft-close door system was “available for many years prior to the

manufacture of the 2013” SCAD system on the Subject Vehicle. (ECF

No. 123-8, Exh. H, Pugh Report at 7.) He also stated that the

SCAD System could have been “economically and feasibly designed in

a safer way, including a sensor system,” citing his own vehicle as

an example of an automatic door that can “sens[e] an item in the

door” and not “trigger or engage” a closure. (Id. at 8.)

2. Dr. Matthew Greenston, Defendants’ Expert,

Biomechanics and Accident Reconstruction

Dr. Matthew Greenston is the Defendants’ expert in

biomechanics, emergency medicine, and accident reconstruction.

(ECF Nos. 126, Def. Reply. 56.1 ¶ 154; 125-18, Exh. 8, Matthew

Greenston Expert Report (“Greenston Report”) at 1.) Dr. Greenston

measured an exemplar 2013 BMW X5 and concluded the SCAD mechanism

engages at approximately 8 millimeters, after three measurements

produced caliper readings of 8.83 millimeters, 8.22 millimeters,

and 8.91 millimeters, respectively. (Id. ¶ 156-157.) Dr.

Greenston explained that his measurements of 8+ millimeters of the

SCAD gap and those proffered by BMW and other experts (6

millimeters) differed because they were taken “diagonally” while

the other measurements were taken “perpendicularly.” (Id. ¶ 159.)

Dr. Greenston used a surrogate to test the manual closing

force of the Subject Vehicle’s doors when shut from different

positions. (Id. ¶¶ 169-72.) He was able to demonstrate various

scenarios including: i) surrogate leans back; (ii) surrogate bumps

the door with his bottom; (iii) surrogate takes a half-step back;

and (iv) surrogate leans back with his bottom leading, in an

attempt to determine the various ways Mr. Boateng could have

stepped back into the Subject Vehicle during the day of the

accident. (Id.) Dr. Greenston concluded from his scenarios tested

that “the surrogate easily generated enough force to amputate a

digit without the SCAD mechanism being engaged.” (ECF No. 125-

18, Greenston Report at 7.) Consistent with Plaintiff’s expert,

Dr. Greenston also conceded that one “doesn’t need force to engage

the SCAD system” because all a person has to do is “put the door

at the appropriate position, so the SCAD [] senses where the door

is and acts based on that.” (ECF Nos. 126, Def. 56.1 Reply ¶ 172;

125-16, Exh. 16, Matthew Greenston Deposition Transcript

(“Greenston Dep. Tr.”) at 218.)

3. Donald Parker, Defendants’ Expert, Mechanical

Engineer and Automotive Design

Donald Parker is a mechanical engineer and automotive

design expert for BMW NA who produced a report on the mechanics of

the BMW SCAD system and an analysis of Dr. Pugh’s testimony. (See

Id. ¶ 180; see also ECF No. 123-11, Exh. K, Parker Report.) Parker

also reported that it takes only a small amount of force to engage

the latch on a BMW door and activate the SCAD system. (ECF No.

126, Def. Reply 56.1 ¶¶ 209-10.) He stated that he believes the

force required to move the door from an open position to the

secondary latch is roughly ten pounds. (ECF No. 125-14, Exh. 14,

Parker Dep. Tr. at 77-78.) Parker also said that slamming the car

door with more than 50 pounds of force would “override the SCAD

system entirely” and manually close the door. (Id. at 95.) Parker

further explained that a thumb is ordinarily “too big” for a car

door to close to the point where SCAD engages, but admitted that

the thumb could be compressed to the point where SCAD activates.

(Id. at 157-158.) Parker did not measure an 8.9-millimeter gap in

the BMW door when the secondary latch position was engaged, as Dr.

Greenston found—-though Parker asserted that this discrepancy was

not due to variability in the hardware. (Id. at 164.) In Parker’s

opinion, it is possible that Mr. Boateng “applied enough force to

the door to squeeze his finger down” to engage the secondary latch,

which would have engaged the SCAD. (Id. at 252-53.)

Parker examined an exemplar Mercedes to study its PCA

system and determined that it “operate[s] essentially similarly to

that of the BMW,” but had a slightly narrower activation gap of 4-

6 millimeters, compared to BMW’s exposed gap of 5 millimeters to

7 millimeters, “depending on the angle of measurement.” (ECF No.

123-11, Exh. K, Parker Report at 18.) Parker also reported that

“an obstruction must be smaller than approximately 6 millimeters,

or must be compressed to that dimension, in order for the closing-

assist feature to activate. In each case, once activated, the

system will energize to the maximum force capability of the system

in an effort to assure a fully-closed door under any environmental

conditions.” (Id. at 17.) Parker testified that he did not

measure “how much force [] it take[s] to engage the secondary

position where SCAD will just, boom, take over.” (ECF No. 125-

14, Exh. 14, Parker Dep. Tr. at 227.) Parker did not run any tests

to see what the impact of the door closure would be on various

objects.

Parker concluded that BMW’s SCAD system did not present

a safety hazard above that of a manually closed door and that the

PCA system did not provide a safer design alternative. (ECF No.

123-11, Exh. K, Parker Report at 18.) The Parker report also

included the 2006 Mercedes-Benz S-Class Sedan’s manual, which

included the warning text in relevant part: “To prevent possible

personal injury, always keep hands and fingers away from the door

or trunk opening when closing a door or the trunk lid.” (Id. at

15.)

Warning! JN

To prevent possible personal injury, always

keep hands and fingers away from the door

or trunk opening when closing a door or the

trunk lid. Be especially careful when small

children are around.

In case of danger, pull the inside or outside

door handle, or press the trunk lid lock.

To prevent personal injury, never actuate

the closing assist mechanism by tampering

with the door or trunk lid latch.

4. Nathan Dorris, Defendants’ Expert on Warnings and

Communications

Nathan Dorris is an engineer and specialist on warnings

and communication who provided an expert report for BMW. (ECF

Nos. 126, Def. Reply 56.1 □ 245; 125-13, Nathan Dorris Expert

Report (“Dorris Report”}).) Dorris opined that BMW’s SCAD warning,

described above, is “capable of being noticed, understood, and

followed,” and did not see the need for any improvement. (ECF No.

126, Def. Reply 56.1 4 253.) Dorris confirmed that BMW does not

include an “on product” SCAD warning. (Id. 7 260.) He also stated

that the word “pinching” in the warning description was not meant

to match the colloquial, playful sense of the term, and that as

such the word may convey a different message than the warning

intended. (Id. 7 262-64.)

18

Dorris also opined that “more is not always better with

respect to warnings.” (ECF 125-13, Exh. 13, Dorris Report at 3.)

Dorris explained that the National Highway Traffic Safety

Administration (NHTSA) has recognized the need to avoid

“information overload” because an oversaturation of warnings

reduces the effectiveness of precautions. (Id.) Dorris stated

that the obvious danger of closing a door on one’s hand meant that

BMW doors “operate consistently with user expectations regarding

function and potential pinch points.” (Id. at 4.) He also wrote

that “door closing injuries are likely to be associated with a

lapse of attention or execution error, not from a lack of

information or knowledge about closing the vehicle’s door or the

potential risk of injury.” (Id. at 10.)

Dorris stated he was not aware of any on-product labels

that addressed the soft-close feature of automatic doors. (ECF

No. 125-12, Exh. 12, Nathan Dorris Deposition Transcript (“Dorris

Dep. Tr.”) at 68-69.) He specified that even with an automatic

soft-close function, people could intuitively understand the

danger. (Id. at 72.) He stated that he did not think replacing

the words “danger of pinching” with “danger of serious injury”

would lead to a different understanding of risk. (Id. at 83-84.)

As such, Dorris concluded that different or additional warnings

would likely not improve user safety. (See generally ECF No. 125-

13, Exh 13, Dorris Expert Report.)

LEGAL STANDARD

Summary judgment shall be granted to a movant who

demonstrates “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’ for these purposes

when it ‘might affect the outcome of the suit under the governing

law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,

104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party.” Anderson, 477

U.S. at 249. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249‒50 (internal citations omitted).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact and an entitlement to judgment as a matter

of law. Rojas, 660 F.3d at 104. In deciding a summary judgment

motion, the Court must resolve all ambiguities and draw all

reasonable inferences against the moving party. Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A moving party may establish the absence of a factual dispute by

“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B).

Once the moving party has fulfilled its preliminary

burden, the onus shifts to the nonmoving party to present evidence

of the existence of a genuine dispute of material fact. Fed. R.

Civ. P. 56(c)(1)(A); Anderson, 477 U.S. at 252. A genuine dispute

of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Id. at 248; accord Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir.

2013). Courts must “constru[e] the evidence in the light most

favorable to the nonmoving party and draw[ ] all reasonable

inferences in its favor.” Fincher v. Depository Trust & Clearing

Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Allianz Ins. Co.

v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005)).

To defeat a motion for summary judgment, the nonmoving

party must identify probative, admissible evidence in the record

from which a reasonable fact-finder could find in his or her favor.

Anderson, 477 U.S. at 256–57. The non-movant must do more than

simply show that there is some “metaphysical doubt as to the

material facts” and, toward that end, “must come forward with

specific facts showing that there is a genuine issue for trial.”

Matsushita Elec., 475 U.S. at 586. The nonmoving party may not

rely on “mere speculation or conjecture as to the true nature of

the facts to overcome a motion for summary judgment.” Knight v.

U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). Summary judgment

“therefore requires the nonmoving party to go beyond the pleadings

and by [his or] her own affidavits, or by the depositions, answers

to interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” Celotex,

477 U.S. at 324.

Local Civil Rule 56.1 requires that the movant also file

a “short and concise statement . . . of the material facts as to

which the moving party contends there is no genuine issue to be

tried,” and provide supporting evidence. Each proffered fact will

be deemed admitted “unless specifically controverted by a

correspondingly numbered paragraph[.]” Loc. Civ. R. 56.1(a)-(c).

Each statement must be supported by a citation to admissible

evidence. Id. at 56.1(d). The response by the nonmoving party

must be supported by a “citation to evidence which would be

admissible” as required by Federal Rule of Civil Procedure 56(c).

Id. A reviewing court “may not rely solely on the statement of

undisputed facts[,] . . . [i]t must be satisfied that the citation

to evidence in the record supports the assertion.” Vermont Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 244 (2d Cir. 2004) (citing

Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir.

2003)). A district court “must ask not whether the evidence

unmistakably favors one side or the other but whether a fair-

minded jury could return a verdict for the plaintiff on the

evidence presented.” Simpson v. City of New York, 793 F.3d 259,

265 (2d Cir. 2015). It is not appropriate for the Court to make

credibility assessments or resolve conflicting versions of the

events presented; these are essential questions for a jury. See

id.

Discussion

Defendants contend that summary judgment is appropriate

on each of Mr. Boateng’s federal and state law claims alleging

that the Subject Vehicle’s SCAD caused amputation of Plaintiff’s

finger. In particular, Plaintiff has alleged design defect,

failure to warn, and manufacturing defect claims, under theories

of strict products liability and negligence. See Voss v. Black &

Decker Mfg. Co., 59 N.Y.2d 102, 106 (1983).

Under New York law, a plaintiff's claim based upon an

alleged design defect or manufacturing defect sounding in either

negligence or strict liability are functionally equivalent and

will be analyzed concurrently. See Jarvis v. Ford Motor Co., 283

F.3d 33, 62-63 (2d Cir. 2002) (citing Denny v. Ford Motor Co., 662

N.E.2d 730, 735 (1995)) (“In general . . . the strict liability

concept of ‘defective design’ is functionally synonymous with the

earlier negligence concept of unreasonable designing” (internal

citation omitted)); S.F. v. Archer Daniels Midland Co., 594 F.

App’x 11, 12 (2d Cir. 2014) (summary order) (“New York courts

generally consider strict products liability and negligence claims

to be functionally synonymous.”); Castaldi v. Land Rover N. Am.,

Inc., 06-CV-1008, 2007 WL 4165283, at *11 (E.D.N.Y. Nov. 21, 2007)

(“The standard of fault in manufacturing defect cases is simply

strict liability, regardless of whether the claim is characterized

as negligence or strict liability.”). It is also well-settled

that “‘[w]here liability is predicated on a failure to warn, New

York views negligence and strict liability claims as equivalent.’”

Estrada v. Berkel Inc., 789 N.Y.S.2d 172 (App. Div. 2005) (internal

citation omitted); Savage v. Beiersdorf Inc., No. 13-CV-0696, 2013

WL 5532756, at *5 (S.D.N.Y. Sept. 30, 2013) (“[F]ailure to warn

claims are identical under strict liability and negligence

theories of recovery.”). Thus, the negligence and strict liability

claims alleging the design, manufacturing, and failure to warn

defects will be analyzed together.

Plaintiff has also brought claims that assert: breaches

of express and implied warranties; negligent misrepresentation and

fraudulent concealment; violations of New York’s General Business

Law § 349; violations of 15 U.S.C. § 1232; and negligent infliction

of emotional distress. The Court first addresses Defendants’

request to preclude Plaintiff’s expert testimony, before

addressing the merits of the various claims.

I. Defendants’ Motion to Preclude Plaintiff’s Expert, Dr. Pugh

A. Admissibility of Dr. Pugh’s Testimony

As a threshold matter, the Court must address

Defendants’ argument that Dr. Pugh’s opinion should be precluded.

See Cohalan v. Genie Indus., Inc., No. 10-cv-2415 (JMF), 2013 WL

829150, at *2 (S.D.N.Y. Mar. 1, 2013) (“Because on a summary

judgment motion a ‘district court properly considers only evidence

that would be admissible at trial,’ a court may—and sometimes must—

decide questions regarding the admissibility of evidence,

including expert opinion evidence, on a motion for summary

judgment.”) (citations omitted).

The admissibility of expert testimony is governed by

Federal Rule of Evidence 702. If expert testimony is found

inadmissible under Rule 702, then the remaining “summary judgment

determination is made by the district court on a record that does

not contain that evidence.” Humphrey v. Diamant Boart, Inc., 556

F. Supp. 2d 167, 173‒74 (E.D.N.Y. 2008) (citations omitted). “Such

an analysis must be conducted even if precluding the expert

testimony would be outcome determinative.” Id.

Rule 702, in particular, provides:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of

an opinion or otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help the trier

of fact to understand the evidence or to determine a fact in

issue; (b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the

principles and methods to the facts of the case.

Fed. R. Evid. 702. Put differently, the Court must determine: (1)

whether the witness is a qualified expert; (2) whether the opinion

is based on application of reliable data and methodology to the

facts of the case; and (3) whether the expert’s testimony will

assist the trier of fact to understand the evidence or determine

an issue of fact. See Beruashvili v. Hobart Corp., No. 05-cv-1646

(ENV), 2010 WL 11622750, at *4 (E.D.N.Y. July 15, 2010).

Though “[t]he proponent of the expert testimony bears

the burden of establishing by a preponderance of the evidence that

the admissibility requirements of Rule 702 are satisfied,” Zsa Zsa

Jewels, Inc. v. BMW of N. Am., LLC, 419 F. Supp. 3d 490, 511

(E.D.N.Y. 2019) (internal quotation marks and citation omitted),

“the district court is the ultimate ‘gatekeeper.’” United States

v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (citations omitted).

The Court, however, recognizes that the Rule 702 inquiry is

“liberal and flexible,” Zsa Zsa Jewels, 419 F. Supp. 3d at 511,

and that “[l]iberality and flexibility in evaluating

qualifications should be the rule; the proposed expert should not

be required to satisfy an overly narrow test of his own

qualifications.” Lappe v. American Honda Motor Co., Inc., 857 F.

Supp. 222, 227 (N.D.N.Y. 1994), aff’d, 101 F.3d 682 (2d Cir. 1996)

(expert qualified to testify on automobile design even though he

did not design automobiles for a living). As long as the expert

stays within the “reasonable confines of his subject area,” the

expert can fairly be considered to possess the “specialized

knowledge” required by Rule 702. Id. (citation omitted); see

also Santoro ex rel. Santoro v. Donnelly, 340 F. Supp. 2d 464, 482

(S.D.N.Y. 2004) (admitting an expert’s opinion on the inadequacy

of warnings, noting that the expert based his opinion on “his

experience in consumer safety and on several articles on warnings

and labeling.”).

1. Qualifications

As an initial matter, Dr. Pugh is a qualified expert in

the areas of biomechanical and biomedical engineering, and

Defendants do not contend otherwise. Dr. Pugh is a licensed

Professional Biomechanical and Biomedical Engineer in New York.

(ECF No. 123-8, Exh. H, Pugh Report.) He holds a bachelor’s degree

in metallurgy and material sciences and a PhD in biomedical

engineering from the Massachusetts Institute of Technology. (Id.

at 17, Curriculum Vitae.) He served as the Director for the

Division of Bioengineering at the Hospital for Joint Diseases

Orthopedic Institute from 1979 to 1984. (Id.) He was a professor

at the following institutions: State University of New York at

Stony Brook’s School of Engineering and School of Medicine, the

Cooper Union School of Engineering in New York, New York

University’s Department of Occupational Health and Safety, City

College of the City University of New York, and Mount Sinai School

of Medicine of the City University of New York. (Id.) He has

been the Director at Inter-City Testing & Consulting Corporation

since 1985 and served as the President since 2005. (Id.) Dr.

Pugh is also active in professional organizations, including the

Society of Automotive Engineers, American Society of Mechanical

Engineers, the American Society for Testing and Materials, and the

National Association of Professional Accident Reconstruction.

(ECF No. 123-9, Exh. I, Pugh Dep. Tr. at 39.)

Particularly relevant here, Dr. Pugh testified that he

has significant experience in automotive injuries, occupant

protection, and injury analysis. (ECF Nos. 123-8, Exh. H, Pugh

CV; 123-9, Exh. I, Pugh Dep. Tr. at 36-37.) Dr. Pugh has also

provided consulting in the design and manufacturing of vehicle

components. (Id. at 76-77.) Dr. Pugh has testified as an expert

in depositions or at trials over 20 times since 2016. (ECF No.

123-8, Exh. H, Pugh Court Testimony List.) Considering his

significant experience in automotive injuries, occupant

protection, and injury analysis, and because Defendants do not

dispute that Dr. Pugh is a qualified expert, this Court concludes

that Dr. Pugh has the specialized knowledge, skill, experience and

education required by the Federal Rules of Evidence and is

qualified to offer opinions in his subject area.

2. Reliability and Relevance (Daubert)

Defendants contend, however, that Dr. Pugh’s expert

opinion and testimony are unreliable as a matter of law. In

Daubert v. Merrell Dow Pharms., Inc., the Supreme Court articulated

several factors to guide district courts in assessing the

reliability of expert testimony: (1) whether the expert’s theory

or technique has been or can be tested; (2) whether it has been

subjected to peer review and publication; (3) its known or

potential rate of error; and (4) its general acceptance by the

relevant scientific community. 509 U.S. 579, 593‒94 (1993).

The reliability inquiry envisioned by Daubert is “a

flexible one,” id. at 594, and the factors to be considered

“depend[ ] upon the particular circumstances of the particular

case at issue.” Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137,

150 (1999). The four factors are not exhaustive and must be

applied flexibly, as they “may or may not be pertinent in assessing

reliability, depending on the nature of the case, the expert’s

particular expertise, and the subject of his testimony.” Kumho

Tire, 526 U.S. at 150 (internal quotation marks and citation

omitted).

The Second Circuit has emphasized that courts should

focus on “the indicia of reliability identified in Rule 702” and

that this “flexible Daubert inquiry gives the . . . court the

discretion needed to ensure that the courtroom door remains closed

to junk science while admitting reliable expert testimony.”

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265-67 (2d

Cir. 2002). “Expert engineering testimony may rest on scientific

foundations, the examination of which invokes the Daubert factors

directly, but may also rest on the personal knowledge or experience

of the engineer.” Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d

175, 180 (E.D.N.Y. 2001); see Kumho Tire, 526 U.S. at 156 (“[N]o

one denies that an expert might draw a conclusion from a set of

observations based on extensive and specialized experience.”). As

the Second Circuit cautioned in McCullock v. H.B. Fuller Co., trial

judges acting as gatekeepers under Daubert must not assume “the

role of St. Peter at the gates of heaven, performing a searching

inquiry into the depth of an expert witness’s soul” and thereby

usurp “the ageless role of the jury” in evaluating witness

credibility and weight of the evidence. 61 F.3d 1038, 1045 (2d

Cir. 1995).

As to Dr. Pugh’s opinions on the deficiencies in the

Defendants’ SCAD design and warnings, and his proposed alternative

design and warnings8, Defendants contend that they are “not based

on a reliable factual foundation and are junk science which will

mislead the trier of fact.” (ECF No. 121, BMW. Mot. for Summ. J.

at 4.) Specifically, Defendants argue that Dr. Pugh’s testing

procedure was “devoid of measurements or details,” lacking a

reliable factual or methodological foundation, and that he did not

8 Dr. Pugh’s expert report provides a list of areas about which he expects to

“opine and testify,” but he does not state that he is prepared to testify

regarding any manufacturing defect. (ECF No. 123-8, Exh. H, Pugh Report at

4.)

perform a risk/utility balancing analysis as required under New

York law.” (Id. at 6-11.)

The Court finds that Dr. Pugh took measurements,

provided detailed findings, and conducted a sufficient risk-

utility test when he weighed the “intended design purpose” of the

SCAD (closing the door completely and “reducing and/or minimizing

the undesirable sound of the slamming of the doors of the vehicle”)

with the risks (“injuries resulted from the lack of any safety

features and sufficient counter measures such as a sensor.”) (ECF

No. 123-8, Exh. H, Pugh Report at 2-3.) Tellingly, Defendants’

experts also took measurements to support their opinions.

Defendants, however, fail to cite any examples of alternative

measuring or testing procedures that would have been more reliable.

That is, Defendants offer no scientific methods or theories that

support their contention that Dr. Pugh’s opinion based on “junk

science.” See Amorgianos, 303 F.3d at 267.

Rather, the Court concludes that Dr. Pugh’s methodology

is reliable and his opinions are based on sufficient and reliable

facts and data. In addition to reviewing case-related materials

and interviewing the Plaintiff, specifically, Dr. Pugh tested the

Subject Vehicle and precisely measured the distance at which the

soft-close mechanism activated, a gap he reported to be about 6

millimeters. (ECF No. 123-8, Exh. H, Pugh Report at 5.) He placed

the KONG and sausage, both approximately the same general

circumference as a human digit, in the 6 millimeters open gap,

before and after the SCAD pulled closed to simulate and test the

SCAD-activated door closing on Mr. Boateng’s thumb in that gap.

(Id.) Dr. Pugh also used the KONG and sausage to test the closing

mechanism of the BMW’s window, and found that the window’s

automatic operation sensed resistance or obstructions from the

objects and immediately began to retract. (Id.) The sausage only

had a mild dent on its surface from the window’s initial contact

before the window retracted. (Id.) Lastly, Dr. Pugh conducted

the same process with the KONG and sausage on the automatically

closing doors and windows of the Mercedes-Benz’s PCA system. (Id.

at 7). He reported that neither the door nor the window of the

Mercedes activated and closed all the way on the objects, instead

“revers[ing] direction upon gently touching” the test objects.

(Id.)

Defendants are incorrect that Dr. Pugh’s opinion must be

precluded because it lacks the precision to be expected of

scientific testimony. The closing of a car door is grounded in

real-world experiences, and it was no less proper for Dr. Pugh to

rely on his measurements, observations, and “personal knowledge or

experience [as an] engineer.” See Cacciola, 127 F. Supp. 2d 175.

Dr. Pugh was testing the Subject Vehicle and another vehicle with

enhanced closing door systems for the basic physical facts: what

happens when, and at what measurement does the SCAD activate,

whether or not objects are in its path. Defendants do not contend

that the size of a sausage or consistency of the specific dog toy

used by Dr. Pugh are in fact dissimilar to a human finger. And

although Defendants offer a host of instances where Dr. Pugh’s

testimony could have been articulated with greater precision and

methods, his imprecision is not fatal to his ability to offer

expert testimony as a matter of law. Instead, Defendants may

challenge on cross-examination the exactitude of Dr. Pugh’s

testing and his credibility. Furthermore, Defendants are

incorrect that Dr. Pugh’s tests on the Subject Vehicle and on his

own vehicle, are entirely irrelevant to the factual questions

regarding the alleged design defects.

Any judgment about the weight and credibility of Dr.

Pugh’s expert testimony should be decided by the jury itself, and

the Court will not preclude Dr. Pugh from testifying and assisting

the jury with understanding and deciding the contested issues,

based on his experience, knowledge, and observations regarding the

automobile and engineering fields. This Court finds that Dr.

Pugh’s testimony would assist the jury in deciding whether

Plaintiff’s allegations against Defendants have been proven.

Consequently, BMW’s motion to preclude Dr. Pugh from testifying as

an expert at trial is denied.

II. Design Defect (Count III – Strict Products Liability and Count

IV – Negligence)

The Court next considers Defendants’ challenge to Mr.

Boateng’s design defect claims brought under strict liability and

negligence theories. In New York, “to establish a prima facie

case in strict products liability for design defects, the plaintiff

must show that the manufacturer breached its duty to market safe

products when it marketed a product designed so that it was not

reasonably safe and that the defective design was a substantial

factor in causing plaintiff’s injury.” Voss, 450 N.E.2d 204, 208

(N.Y. 1983). The design of a product is “not reasonably safe” if

“a reasonable person would conclude that the utility of the product

did not outweigh the risk inherent in marketing a product designed

in that manner.” Id. “The plaintiff, of course, is under an

obligation to present evidence that the product, as designed, was

not reasonably safe because there was a substantial likelihood of

harm, and it was feasible to design the product in a safer manner.”

Id; see also Rupolo v. Oshkosh Truck Corp., 749 F. Supp. 2d 31, 42

(E.D.N.Y. 2010). “This standard demands an inquiry into such

factors as (1) the product’s utility to the public as a whole, (2)

its utility to the individual user, (3) the likelihood that the

product will cause injury, (4) the availability of a safer design,

(5) the possibility of designing and manufacturing the product so

that it is safer but remains functional and reasonably priced, (6)

the degree of awareness of the product’s potential danger that can

reasonably be attributed to the injured user, and (7) the

manufacturer’s ability to spread the cost of any safety-related

design changes.” Denny, 662 N.E.2d 730, 735 (N.Y. 1995) (citation

omitted).

In arguing for summary judgment, Defendants assert that

Plaintiff cannot provide evidence to create an issue of fact

regarding a feasible alternative design or whether the design

defect was the proximate cause of Mr. Boateng’s accident. The

Court finds that there are genuine issues of material fact on both

elements, precluding the grant of summary judgment for Defendants

on the Plaintiff’s claims of design defect, based on theories of

strict liability and negligence.

A. Proof of Feasible Alternative Design

The Court finds that Mr. Boateng has met the “burden of

presenting evidence that the product . . . feasibly could have

been designed more safely.” Fane v. Zimmer, Inc., 927 F.2d 124,

128 (2d Cir. 1991); see Greenberg v. Larox, Inc., 673 F. App’x 66,

69 (2d Cir. 2016) (summary order). “[I]n order to . . . raise a

genuine issue of fact . . . [a plaintiff] must present some

admissible evidence that there exists a technologically feasible

and commercially practicable alternative design that would have

reduced or prevented the harm sustained by the plaintiff.” Soliman

v. Daimler AG, No. CV 10-408 (SJF)(AKT), 2011 WL 6945707, at *5

(E.D.N.Y. Aug. 8, 2011), report and recommendation adopted, No.

10-CV-408 (SJF)(AKT), 2011 WL 4594313 (E.D.N.Y. Sept. 30, 2011)

(quotation omitted)). There are two means of proving the existence

of a feasible alternative: plaintiff must provide an expert who

(1) “can show, through testing and construction of a prototype,

that such an alternative design is within the realm of practical

engineering feasibility, thereby demonstrating the utility, cost,

safety, sanitation and other characteristics of the proposed

alternative; and/or (2) identify makers of similar equipment who

have already put into use the alternative design that has been

proposed.” Rypkema v. Time Mfg. Co., 263 F. Supp. 2d 687, 692

(S.D.N.Y. 2003).

In this case, based on Dr. Pugh’s findings, the parties’

evidence presents a genuine dispute of material fact as to viable

alternative designs to the BMW soft-close feature. Dr. Pugh’s

expert report and deposition proposes two design alternatives to

BMW’s SCAD: (1) Mercedes-Benz’s PCA (identifying a maker of similar

equipment), and (2) BMW’s own automatic windows that have a safety

sensor that stops and retracts a closing window if it encounters

an obstruction.9 (See generally ECF No. 123-8, Exh. H, Pugh

9 Though Dr. Pugh also listed a vehicle door that does not have a soft-close

automatic door system as an alternative, it appears that Plaintiff has

abandoned this alternative, so the Court will not include it in its analysis.

The Court notes Defendants’ supplemental briefing to this Court that Judge

Brown, in a similar case to this one, found during BMW’s Rule 50(a) motion

for directed verdict that Plaintiff’s design defect claim cannot be

predicated upon an alternative design for the BMW vehicle door without the

soft-close feature. (ECF No. 135, Def. Supp. Letter.); see S.F. v. Archer

Daniels Midland Co., 594 F. App’x 11, 12-13 (2d Cir. 2014); Trisvan v.

Heyman, 305 F. Supp. 3d 381, 405 (E.D.N.Y. 2018) (citing Yates v. Ortho-

McNeil-Janssen Pharm., Inc., 808 F.3d 281, 300 (6th Cir. 2015) (quoting

Report.) Dr. Pugh conducted an experiment where he placed the

same KONG in the door jamb of the Mercedes-Benz doors and the door

“closed gently to the point of actuation of the soft-close system,

and nothing happened,” demonstrating that the PCA did “not actuate”

with something in its way. (Id. at 7.) Dr. Pugh also points to

the automatic window retreats of the Subject Vehicle and the

Mercedes-Benz as evidence that similar equipment can be designed

to prevent closures of doors if objects are in the path of closure.

(Id.) The Court agrees that the existence of mechanisms that stop

and/or retract in the PCA doors and vehicle windows (both reported

to be present in the windows of the Subject Vehicle and the

Mercedes-Benz) presents sufficient evidence for a jury to find a

“technologically feasible and commercially practical alternative

design” for car doors that may close on their own in any fashion.

Soliman at *5.

Although Defendants dispute in conclusory fashion that

the Mercedes-Benz PCA is a “legally viable alternative design” to

the BMW SCAD, they provide no supporting evidence for their

position. The Defendants’ expert, Parker, procured and inspected

the same model of Mercedes-Benz that Dr. Pugh tested. (ECF No.

123-11, Exh. K, Parker Report at 17.) Parker took measurements of

the distance at which the SCAD (BMW) and PCA (Mercedes Benz) would

Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472, 488 (2013))); see

also Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 551 (2008).

engage. (Id.) Parker reported with respect to the Mercedes-Benz

PCA, that “[o]nce engaged, it was found that the Mercedes PCA

system would energize to the maximum force capability of the system

in an effort to fully close the door . . . an obstruction in the

door gap would not change or affect this effort.” (Id.) Parker’s

report, however, does not discuss actual testing. Parker’s report

does not state that Parker used any object to determine if the

Mercedes-Benz PCA would arrest the closing of the door if an

obstruction were encountered. Parker states that the SCAD and PCA

are “essentially similar with respect to operation and

functionality” and that the PCA, like the SCAD, does not have a

functionality that would sense an item in the door and pause

activation as a result. (Id. at 17-18.) Defendants’ expert

concludes that the PCA “does not provide a safer design

alternative,” but provides no evidentiary support (such as

conducting a test similar to the tests conducted by Dr. Pugh’s)

for his conclusion. (Id. at 19.) Further, Parker’s report does

not address the ability of vehicle windows to retreat when

encountering an obstruction.

The Court finds that the jury should resolve any

inconsistencies and disputes between experts for the parties.

Fundamentally, Dr. Pugh’s opinion is that the SCAD should and could

have included some safety sensor or other feature, and Defendants

offer no reason why a safety mechanism would have made their SCAD

less “functional” or useful. (ECF No. 121, BMW Mot. for Summ. J.

at 16.) Indeed, BMW’s own practices are relevant; it appears that

safety sensors on other parts of the car—such as their windows—

are in fact more functional and useful. The Court thus finds that

there are material facts in genuine dispute about whether there

were viable alternative designs presented, and that a reasonable

jury should assess and decide the disputes regarding the viability

of Dr. Pugh’s proffered designs.

B. Proximate Causation

Separate and apart from establishing safer alternative

designs for the SCAD, the Court finds that there are genuine issues

of material fact as to whether the alleged design defects caused

Mr. Boateng’s injury. Mr. Boateng testified at his deposition

that he did not close the Subject Vehicle door on himself, and

that when he positioned the door away from oncoming traffic, “at

some point . . . the SCAD took over” and “automatically” closed

the door, severing his right thumb. (ECF No. 123-6, Exh. F,

Boateng Dep. Tr. at 96, 153.) Mr. Boateng also told Defendants,

“It’s an accident, so my finger got in there and it just

automatically closed over it.” (Id. at 96.)

Without citation to facts, BMW nonetheless argues that

Mr. Boateng caused the amputation of his own thumb. Defendants

contend that Plaintiff moved backward with such a degree of force

that it “cause[d] the amputation just from the force of his body.”

(ECF No. 121, BMW Mot. for Summ. J. at 21.) Defendants assert

that according to Dr. Greenston’s multiple surrogate

demonstrations, with or without SCAD, the door closed all the way

because Mr. Boateng pushed it with sufficient force. (Id; ECF No.

125-18, Greenston Report at 7.)

Dr. Greenston’s expert report and deposition, taken

together, however, acknowledges the existence of a genuine dispute

of fact as to what caused Mr. Boateng’s injury, but he concludes

that Plaintiff caused his own injury. Indeed, Dr. Greenston’s

expert opinion and deposition considered both parties’ alleged

scenarios—that (1) according to Mr. Boateng, when the vehicle door

was moved within a specific distance to the secondary latch, the

“SCAD [] senses where the door is and acts based on that” or (2)

according to Defendants, "[w]ithout the SCAD closure mechanism

engaged, [a man Mr. Boateng’s size] could easily generate enough

force to amputate a fingertip in the door gap.” (ECF Nos. 125-

16, Exh. 16, Greenston Dep. Tr. at 218; 125-18, Greenston Report

at 7.)

Furthermore, Defendants’ second expert, Mr. Parker, also

acknowledges in his report and deposition that a genuine dispute

of fact exists as to what caused Mr. Boateng’s injury. Parker

reports “that the door need only be pushed lightly to close the

door with the SCAD feature” and that “[a]t nominal room

temperatures and with clean and dry door seals/weatherstrips,

approximately 47 pounds of force, applied at the door handle

location, is required to fully close the door from the secondary

latch position.” (ECF No. 123-11, Exh. K, Parker Report at 4,

10.) Parker also said that slamming the car door with more than

50 pounds of impulse would “override the SCAD system entirely” and

manually close the door. (ECF No. 125-14, Exh. 14, Parker Dep.

Tr. at 77-78.) Defendants appear to contend that Mr. Boateng

pushed the door of the Subject Vehicle hard enough to “override”

the SCAD entirely, causing the amputation of his thumb without any

activation of the SCAD.

In light of the numerous causation possibilities

proffered by both of Plaintiff’s and Defendants’ experts, and other

reported SCAD-related accidents, a reasonable jury could easily

conclude that Mr. Boateng’s injury was not self-inflicted by

Plaintiff’s use of force when closing the door. The factual

question of whether and how Mr. Boateng may have moved the door of

the Subject Vehicle from the outer latch to the secondary latch,

thereby activating the SCAD, remains. The Court finds that these

factual questions are best reserved for a jury. Accordingly, the

Court finds that there are genuine issues of material fact

precluding the grant of summary judgment for Defendants on the

design defect claim.

III. Failure to Warn (Count I – Strict Product Liability and Count

IV – Negligence)

The Court next addresses Defendants’ motion for summary

judgment on Plaintiff’s failure to warn claim, which alleges that

BMW failed to provide adequate warnings of the dangers posed by

the BMW SCAD. “A defendant may be liable under a negligence or

strict products liability theory by failing to adequately warn of

a potentially harmful aspect of the product. There is no

difference between the prima facie elements of a failure to warn

claim sounding in negligence and one sounding in strict products

liability.” Mustafa v. Halkin Tool, Ltd., No. 00-CV-4851 (DGT),

2007 WL 959704 (E.D.N.Y. Mar. 29, 2007); see Enright v. Eli Lilly

& Co., 570 N.E.2d 198, 203 (N.Y. 1991) (noting that a failure to

warn claim “couched in terms of strict liability, is

indistinguishable from a negligence claim.”) (citation omitted).

On either theory, to bring a failure to warn claim,

Plaintiff must show “(1) that a manufacturer has a duty to warn;

(2) against dangers resulting from foreseeable uses about which it

knew or should have known; and (3) that failure to do so was the

proximate cause of harm.” Colon ex rel. Molina v. BIC USA, Inc.,

199 F. Supp. 2d 53, 84 (S.D.N.Y. 2001); see also Burke v.

Spartanics, Ltd., 252 F.3d 131, 137-40 (2d Cir. 2001) (same). A

manufacturer can be liable even after the product is sold based on

“dangers in the use of a product which come to his attention after

manufacture or sale, through advancements in the state of the art

with which he is expected to stay abreast, or through being made

aware of later accidents involving dangers in the product of which

warning should be given to users.” Cacciola, 127 F. Supp. 2d 175,

186. “A manufacturer's superior position to garner information

and its corresponding duty to warn is no less with respect to the

ability to learn of modifications made to or misuse of a product.”

Liriano v. Hobart Corp. (“Liriano I”), 700 N.E.2d 303, 309 (N.Y.

1998).

The New York Court of Appeals has described the standard

for evaluating failure to warn claims as “intensely fact-specific,

including but not limited to such issues as feasibility and

difficulty of issuing warnings in the circumstances; obviousness

of the risk from actual use of the product; knowledge of the

particular product user; and proximate cause.” Liriano I, 700

N.E.2d 303, 309 (internal citation omitted). Given this fact-

intensive inquiry, the Second Circuit has emphasized, “[t]he

adequacy of the instruction or warning is generally a question of

fact to be determined at trial and is not ordinarily susceptible

to the drastic remedy of summary judgment.” Urena v. Biro Mfg.

Co., 114 F.3d 359, 366 (2d Cir. 1997) (citations omitted); see

Liriano v. Hobart Corp. (“Liriano II”), 132 F.3d 124, 131 (2d Cir.

1998) (stating that courts have “squarely h[e]ld that it is up to

the jury to decide whether the manufacturer, in fact, has a duty

to warn.”) (citations omitted); Johnson v. Johnson Chem. Co., Inc.,

588 N.Y.S.2d 607, 610 (App. Div. 2d Dep’t 1992) (“Whether a

particular way of misusing a product is reasonably foreseeable,

and whether the warnings which accompany a product are adequate to

deter such potential misuse, are ordinarily questions for the

jury.”) (citations omitted); Cooley v. Carter–Wallace Inc., 478

N.Y.S.2d 375, 376 (App. Div. 4th Dep’t 1984) (“The adequacy of the

warning in a products liability case based on a failure to warn

is, in all but the most unusual circumstances, a question of fact

to be determined at trial.”).

Defendants argue that they are entitled to summary

judgment because Mr. Boateng did not and would not have read BMW’s

warnings, which Defendants assert are sufficient in warning about

the dangers of the SCAD. (ECF No. 121, BMW Mot. for Summ. J. at

21-23.) Defendants also contend that the lack of warning was not

the cause of Mr. Boateng’s accident. (Id.)

A. Knowledge of the User Exception

The Court first respectfully rejects Defendants’

invocation of the knowledge of the user exception. A court may

grant summary judgment to a defendant on a failure to warn claim

as a matter of law where the plaintiff cannot prove that the

absence of warning proximately caused his injury. See Burke v.

Spartanics, Ltd., 252 F.3d 131, 138 (2d Cir. 2001). A defendant

can show the lack of proximate cause by demonstrating the futility

of warnings, through evidence that plaintiff was fully aware of

the hazard through general knowledge, observation, or common

sense. See Liriano I, 700 N.E.2d at 308 (no causation where “the

injured party was fully aware of the hazard through general

knowledge, observation or common sense”); see also Gonzalez v.

Morflo Indus., Inc., 931 F. Supp. 159, 168 (E.D.N.Y. 1996)

(“[W]here a warning would not have increased the particular injured

user’s awareness of the danger, failing to warn cannot be said to

have been the proximate cause of the accident.”).

To fall under the knowledge of the user exception for a

failure to warn claim, Plaintiff “must have known about the

specific hazard that caused the injury and must have appreciated

the severity of the danger. Although in appropriate cases a court

may as a matter of law decide that a manufacturer’s warning would

have been superfluous given an injured party’s actual knowledge of

the specific hazard that caused the injury, where reasonable minds

might disagree as to the extent of [the] plaintiff’s knowledge of

the hazard, the question is one for the jury.” Leibstein v.

LaFarge N. Am. Inc., 689 F. Supp. 2d 373, 388‒89 (E.D.N.Y. Feb.

12, 2010) (internal quotation marks and citations omitted).

Mr. Boateng specifically testified that “with no

warning, the door automatically closed” demonstrating that he was

not aware of any immediate danger related to the vehicle door.

Plaintiff testified knowing not to put a finger or body part in

between a door and a door frame when a door is closing. (ECF 123-

6, Exh. F, Boateng Dep. Tr. at 93-94). But he also testified that,

prior to the accident, he did not “believe that the door could

self-close from a distance of approximately one foot.” (Id. at

87.) A jury could find that relevant danger about which Mr.

Boateng should have been warned was the specific, heightened

danger, if any, posed by the Defendants’ soft-close automatic door.

Defendants argue that Plaintiff was fully aware of the

danger posed by placing his hand in the door of a vehicle. (ECF

No. 121, BMW Mot. for Summ. J. at 30.) (“Plaintiff understood since

childhood, not to put a finger or body part in between a door and

its door frame while it is closing.”) But the Court finds that

reasonable minds could differ as to the extent of Plaintiff’s

knowledge of the danger posed by the SCAD, which, unbeknownst to

Plaintiff, included the risk of activation when the door is within

a certain distance from closure. Furthermore, though the

Defendants argue that Plaintiff should have been aware of the

danger of having his hand in the door “while [the door was]

closing” (id.) Defendants ignore Plaintiff’s testimony that the

door suddenly, automatically, and forcefully closed on his thumb

without any force exerted by Plaintiff. Accordingly, the Court

concludes that there are genuine issues of material fact concerning

Defendants’ warning was adequate, and the extent of Plaintiff’s

knowledge of the danger presented by the SCAD. Consequently, the

Court declines to grant summary judgment on Plaintiff’s failure to

warn claim based on Plaintiff’s purported knowledge of the risk

posed by SCAD.

B. Open and Obvious Risk

The Court also respectfully rejects Defendants’ argument

that they had no duty to warn because the hazard was patently

dangerous or posed an open and obvious risk. See Liriano I, 700

N.E.2d at 308 (“Where a danger is readily apparent as a matter of

common sense, there should be no liability for failing to warn

someone of a risk or hazard which he [or she] appreciated to the

same extent as a warning would have provided. Put differently,

when a warning would have added nothing to the user’s appreciation

of the danger, no duty to warn exists as no benefit would be gained

by requiring a warning.”) (internal quotation marks and citation

omitted) (alteration in original). In contrast, “the open and

obvious defense generally should not apply when there are aspects

of the hazard which are concealed or not reasonably apparent to

the user.” Id.

The open and obvious inquiry goes to the manufacturer’s

duty and depends on, not what the plaintiff understands about the

risk, but whether reasonably foreseeable users of the product would

perceive it to be open and obvious. Burke, 252 F.3d at 137‒38.

Further, “[t]he class of reasonably foreseeable users will, of

course, encompass a spectrum of persons with widely varying

abilities and experience bearing on their perception of the hazards

at hand.” Id. at 138. Plaintiff’s own knowledge, though a

relevant reference point, does not determine the outcome of the

open and obvious inquiry, which is an objective one; thus, whether

a reasonable user of a vehicle door with an automatic soft-close

feature would foresee or consider the potential risk of its use to

be open and obvious is a fact-intensive inquiry that is more

appropriate for the jury.

Defendants’ argument that the SCAD posed an open and

obvious risk appears to be in insurmountable tension with their

arguments that the SCAD is safe. Defendants focus on how Mr.

Boateng “knew not to put his finger between a door and its frame

when the door is closing” but do not address the specific danger

of an automatic soft-close function, which closes in a manner, and

with force and speed that may not be obvious to the reasonable

user. (ECF No. 121, BMW Mot. for. Summ. J. at 23.) Defendants

state, “given the freakish circumstances of Plaintiff’s accident

(i.e., the result of avoiding an oncoming truck with his back to

the door),” no warning label, within the car or outside on the car

door, would have prevented the accident. (Id. at 23.) But this

conclusory description (equating the “freakish circumstances” of

avoiding traffic to the result of the avoiding traffic) ignores

that a jury could find that the unexpected and forceful automatic

door closing may not have been open and obvious to Mr. Boateng or

any reasonable user. The nonobvious nature of the potential danger

presented by the SCAD feature is also demonstrated by the fact

that Plaintiff, who has two degrees in mechanical engineering, did

not expect the door to shut so automatically and forcefully during

his accident in 2016. Plaintiff’s testimony is at least sufficient

for a jury to decide the disputed material fact of whether the

hazard presented by the SCAD was open and obvious.

Finally, the Court declines to grant summary judgment on

Plaintiff’s failure to warn claim in favor of Defendants based on

their contentions that the lack of adequate warnings was not the

proximate cause of Plaintiff’s injury because Mr. Boateng did not

read the manual or see the warning, even if one were placed on the

door. (ECF No. 121, BMW Mot. for Summ. J. at 22-23.) There is no

evidence supporting Defendants’ conclusory argument that an

adequate warning on the door would not have caused (or prevented)

Plaintiff’s injury. Courts have found that “a plaintiff . . . may

be able to prevail under New York law with respect to his failure

to warn claim, even though it is undisputed that he failed to read

the warnings, if he can demonstrate that adequate warnings would

have come to the attention of a third party . . .and they would

have informed him of those warnings.” Humphrey, 556 F. Supp. 2d

at 181; see, e.g., Sorto-Romero v. Delta Intern. Mach. Corp., No.

05-cv-5172(SJF), 2007 WL 2816191, at *12 (E.D.N.Y. Sept. 24, 2007)

(“[I]n light of Plaintiff’s inability to read the warnings,

Plaintiff may be able to prove causation whereby a third party may

have conveyed the warning to him.”) (citing New York cases);

Mustafa, 2007 WL 959704, at *19 (“[Plaintiff] could prove the

requisite ca[usa]l link in light of his inability to read the

warning . . . under a theory of causation whereby [a] third party

may have conveyed the warning to him.”).

Defendants do not seriously dispute that BMW could have

placed a warning regarding the SCAD right on the door. That

warning would be in plain sight. Not only would Plaintiff have

been more likely to notice a warning on the door, other consumers

of the 2013 BMW X5 or passengers of Mr. Boateng’s Subject Vehicle

could have also read the warning and realized that an extra degree

of caution was required when shutting the vehicle door. Those

other viewers of the warning label could have imparted the extra

degree of caution to Mr. Boateng at some point before his accident.

Further, though Defendants’ expert, Dr. Dorris,

testifies “more is not always better,” a reasonable jury could

find that measures, beyond the Defendants’ one warning buried in

the pages of the manual about the SCAD’s dangers of “pinching,”

were feasible and could have prevented the injury. See Derienzo

v. Trek Bicycle Corp., 376 F. Supp. 2d 537, 570 (S.D.N.Y. 2005)

(finding that manuals containing warnings on half their pages could

lead a jury to conclude the warnings were inconspicuous) (citation

omitted); see also Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422,

451 (S.D.N.Y. 1999) (“Whether those warnings should have

specified, for example, the specific danger of paralysis from neck

injury, rather than only the danger of ‘serious injuries,’ is a

question upon which reasonable people could disagree.”) Even if

a warning label meets the appropriate standard, its adequacy may

not be dispositive as a matter of law. See Anderson, 76 F. Supp.

2d 422, 450; Sawyer v. Dreis & Krump Manufacturing Co., 493 N.E.2d

920 (N.Y. 1986) (holding that meeting industry standards is not

conclusive of a negligence claim.)

Defendants argue that Plaintiff would have missed any

warning on the Subject Vehicle because he was outside of the car

and would not have seen a warning inside the car door during his

accident. (ECF No. 121, BMW Mot. for Summ. J. at 23.) But that

is not the relevant question. A reasonable jury could find that

Mr. Boateng, or others who he would have communicated with, would

have read a warning on the door or elsewhere on the vehicle at

some time before the accident, and this could have altered his

behavior, in response to the otherwise unforeseeable danger posed

by the SCAD. A reasonable jury could also find that were the

warning language to reflect the possibility of amputation along

with or instead of “pinching”, Mr. Boateng or others around him

could have altered their interactions with the Subject Vehicle

door’s soft-close automatic function.

Because it is possible that if the jury finds that

warnings regarding the point at which the SCAD activates could

have come to the attention of Plaintiff or others around him, and,

in turn, the warnings would have likely been conveyed to Plaintiff,

a jury could reasonably find the requisite causal link for

Plaintiff to prevail on his failure to warn claim. Thus, this

Court concludes that the question of whether Defendants’ warning

was adequate or not should be left to the jury. For the reasons

stated above, Defendants’ motion for summary judgment on

Plaintiff’s failure to warn claim is denied.

IV. Manufacturing Defect (Count II – Strict Products Liability

and Count IV – Negligence)

The Court next address Defendants’ motion for summary

judgment on Plaintiff’s manufacturing defect claim. To state a

claim for manufacturing defect under either theories of negligence

or strict liability, Mr. Boateng must (1) demonstrate that BMW’s

“specific product unit was defective as a result of some mishap in

the manufacturing process itself, improper workmanship, or because

defective materials were used in construction, and [(2)] that the

defect was the cause of plaintiff’s injury.” Colon ex rel. Molina

v. BIC USA, Inc., 199 F. Supp. 2d 53, 85 (S.D.N.Y. 2001) (quoting

Caprara v. Chrysler Corp., 417 N.E.2d 545 (N.Y. 1981)).

A plaintiff must show the product purchased departed

from the manufacturer’s intended specifications for other units in

the same line of product. Id. at 85. (“[A] manufacturing flaw

exists when the unit in question deviates in quality and other

performance standards from all of the other identical units.”);

Oden v. Boston Scientific Corporation, 330 F. Supp. 3d 877

(E.D.N.Y. 2018) (a plaintiff must show specifically what part of

the manufacturing process or what component of the final product

was defective.) In the absence of direct evidence of a defect, a

plaintiff may demonstrate the existence of a defect using

circumstantial evidence from the injury to infer that the product

did not perform as it was designed to. Lynch v. Trek Bicycle

Corp., No. 01-cv-3651(DAB)(JCF), 2011 WL 1327032, at *4 (S.D.N.Y.

Mar. 30, 2011) (denying summary judgment for the defendant because

circumstantial evidence that a bicycle component snapped during

normal use could support the inference that the component was

manufactured defectively.)

Mr. Boateng offers several theories for his

manufacturing defect claim. Dr. Pugh reported that “after

repeated” tests of the Subject Vehicle’s door, the SCAD “failed to

operate,” but did not identify any defect in the manufacturing

itself. (ECF No. 123-8, Exh. H, Pugh Report at 6.) Along with

not identifying the manufacturing defect, Dr. Pugh’s report does

not identify how a manufacturing defect caused Plaintiff’s injury

or provide an explanation of any defect in the manufacturing

process. In any case, the Court notes that Dr. Pugh’s expert

report provides a list of areas he expects to “opine and testify”

on, but he does not mention that he is prepared to testify on any

manufacturing defect. (Id. at 4.) Nor does Dr. Pugh’s report

expressly address or opine on manufacturing defects. Considering

that Dr. Pugh’s testimony cannot be offered to support Plaintiff’s

manufacturing defect claim, the Court finds that Plaintiff in

effect has no evidence from which a jury could find a manufacturing

defect.

Nonetheless, Plaintiff also argues there may be a

manufacturing defect because (1) Defendants cannot agree with one

another at what precise millimeter during closure the SCAD is

designed to activate, and (2) Defendants refused to provide

materials on their inspection of the Subject Vehicle. (ECF No.

127, Pl. Mot. in Opp’n. at 21-22.) Neither argument creates a

genuine dispute of material fact as to Plaintiff’s manufacturing

defect claim. First, the precise activation distance of SCAD—

though perhaps significant for a design defect claim—is neither in

genuine dispute nor material to the issue of a manufacturing

defect. The “various” measurements (id.) were derived using

different measuring techniques. Defendants’ expert, Dr.

Greenston, who concluded that the SCAD mechanism engages at

approximately 8 millimeters, explained that his measurement

differed from the 6-millimeter gap measured by other experts

because they were taken “diagonally” while the other measurements

were taken "perpendicularly.” (ECF No. 126, Def. Reply 56.1 ¶

159.) Given the breadth of evidence proffered from both parties

stating that that SCAD’s standard activation gap is 6 millimeters

plus a 1-millimeter tolerance, (ECF Nos. ECF 127-7, Exh.7,

Bruecklmeier Dep. Tr. at 87-88; 123-11, Exh. K, Parker Report ¶¶

24-29; 125-16, Exh. 16, Greenston Dep. Tr. at 173:6-174:3; 123-8,

Exh. H, Pugh Report at 3), there is no genuine, material

disagreement about the millimeter distances.

Plaintiff, moreover, offers no reason why a 1-millimeter

difference regarding when the SCAD actually engages might be

material and relevant to a manufacturing defect claim. Plaintiff

does not proffer a theory about the intended manufacture of the

SCAD mechanism and how the differences in the measurement of the

Subject Vehicle’s gap relates to his manufacturing defect claim.

Bertini v. Smith & Nephew, Inc., 8 F. Supp. 3d 246, 257 (E.D.N.Y.

2014) (“A manufacturing defect claim should be dismissed if

plaintiff has not alleged that the particular [product]

administered to her had a defect compared to other samples of that

[product].”). Even if the size of the SCAD activation gap were

disputed, Plaintiff still does not explain how this is material to

his manufacturing defect claim or most importantly, how any

particular manufacturing defect allegedly caused his injury. It

is not enough that a product be defective, the defect must also

cause of the injury in question. Here, Plaintiff does not provide

a causal connection between the unidentified manufacturing defect

and the resultant injury. Plaintiff offers no evidence of a

manufacturing defect from which a jury could draw an inference

connecting the manufacturing defect and the injury in question.

Plaintiff has failed to meet his burden of proffering evidence

that any manufacturing defect was a “substantial factor” in causing

his injuries. See Derienzo, 376 F. Supp. 2d at 560.

The circumstances of the injury alone do not support the

inference that Plaintiff’s SCAD was defectively manufactured

because the parties agree that a fully functional SCAD can amputate

a finger. (See ECF No. 124, Pl. Resp. 56.1 ¶¶ 139, 223.) This

case is unlike Lynch, cited by Plaintiff, where the failure of a

bicycle component during normal use was circumstantial evidence

that the part was defectively manufactured. 2011 WL 1327032, *4.

In Lynch, the injury itself was evidence of a defect because non-

defective bicycle components do not “snap” during normal use.

Nothing about the circumstance of Plaintiff’s injury–a door

closing unexpectedly and forcefully upon the activation of his

vehicle’s SCAD–supports the inference that the manufacture of the

Subject Vehicle’s SCAD departed from the manufacturer’s intended

specifications and design.

Second, Plaintiff asserts that “Boateng complied with

BMW’s request to inspect his vehicle, but BMW chose not to include

its report or findings in their moving papers,” and suggests that

Defendants are hiding pertinent information from this Court. (ECF

No. 127, Pl. Mem. in Opp’n. at 21.) This Court declines to

entertain mere speculation as to why Defendants did not include a

copy of Defendants’ inspection of the Subject Vehicle in its moving

papers as it is unclear what inference Plaintiff suggests the Court

should draw from this omission. Knight, 804 F.2d 9, 12. The

undisputed fact remains that Plaintiff’s expert, Dr. Pugh,

assessed the Subject Vehicle’s SCAD activation gap at 6

millimeters—the same measurement that Defendants admit was

intended by the design. (ECF No. 123-8, Exh. H, Pugh Report at 2,

3.) As such, Plaintiff’s speculation does not support the

inference that Subject Vehicle’s SCAD was defectively manufactured

to make it more dangerous than other units.

Although the Court construes the facts presented in the

light most favorable to Plaintiff, for the purposes of opposing

summary judgment, “the nonmoving party must produce more than a

scintilla of admissible evidence that supports the pleadings.”

Esmont v. City of New York, 371 F. Supp. 2d 202, 210 (E.D.N.Y.

2005); see also First Nat’l Bank of Ariz. v. Cities Serv. Co., 391

U.S. 253, 289–90 (1968); Niagara Mohawk Power Corp. v. Jones Chem.

Inc., 315 F.3d 171, 175 (2d Cir. 2003). Here, Plaintiff points to

the accident itself and inconsistencies in the measurements

between Defendants’ experts without articulating a specific theory

for how the Subject Vehicle’s SCAD departed from the intended

design or why a manufacturing defect, rather than a design defect,

caused the instant injury. Absent additional evidence, such

speculation is insufficient to establish a genuine triable issue

of fact as to whether the SCAD was defectively manufactured.

Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 322–23.

Based on the foregoing reasons, Defendants’ motion for summary

judgment on Plaintiff’s manufacturing defect claim is granted.

V. Breach of Warranty (Count VII – Breach of Implied Warranty,

Count VIII – Express Warranty, Count IX – MMWA, and Count X

– Breach of Implied Warranty of Merchantability)

The Court further addresses Plaintiff’s several breach

of warranty claims: 1) breach of implied warranty of

merchantability (Count VII and Count X); 2) breach of express

warranty (Count VIII); and 3) violation of the Magnuson–Moss

Warranty Act, 15 U.S.C. § 2301 (the “MMWA”)(Count IX). Plaintiff

brings two different causes of action for breach of implied

warranty (Count VII) and breach of implied warranty of

merchantability (Count X). (ECF No. 68, Amended Compl., 36, 41-

42.) The Court will analyze and determine both Count VII and Count

X as one claim for breach of implied warranty of merchantability

pursuant to the New York Uniform Commercial Code (N.Y. U.C.C.).

The N.Y. U.C.C. Law § 2-314 and § 2–315 specifies two types of

implied breach of warranties, one for “merchantability” and

another for “fitness for a particular purpose,” but does not

provide a separate, general implied warranty claim. Courts in the

Second Circuit and this District do not consider breach of implied

warranty and breach of implied warranty for merchantability claims

as two separate claims, and this Court will adhere to the guidance

of those courts. See Abraham v. Volkswagen of Am., Inc., 795 F.2d

238, 247 (2d Cir. 1986)(defining implied warranty as “an implied

warranty arising under State law [] in connection with the sale by

a supplier of a consumer product” pursuant to 15 U.S.C. § 2301(7));

Jackson v. Eddy's LI RV Ctr., Inc., 845 F. Supp. 2d 523, 530

(E.D.N.Y. 2012)(“Implied warranties include the implied warranty

of merchantability and the implied warranty of fitness for a

particular purpose. In New York, any implied warranty of

merchantability is governed by Section 2–314 of the New York

Uniform Commercial Code [].”); Kolle v. Mainship Corp., No. 04-

cv-711, 2006 WL 1085067, at *3 (E.D.N.Y. Apr. 20, 2006)(“New York's

UCC provides for two forms of implied warranties-an implied

warranty of merchantability under UCC § 2-314 and an implied

warranty of fitness for a particular purpose under UCC § 2-315.”)

The Court notes that the cases that Plaintiff cites in their

opposition to the motion for summary judgment on a generalized

implied breach of warranty claim all refer back to the N.Y. U.C.C.

“ordinary purpose” standard. Cavanagh v. Ford Motor Co., 13-cv-

4584, 2014 WL 2048571, at *5 (E.D.N.Y. May 19, 2014)(stating that

“implied warranty is breached where the product in question is not

fit for the ordinary purpose for which it is to be used.”) (quoting

Plemmons v. Steelcase Inc., 04-cv-4023, 2007 WL 950137, at *3

(S.D.N.Y. Mar. 29, 2007) (in turn quoting Denny, 662 N.E.2d at

736) (in turn quoting the N.Y. U.C.C. § 2–314.)); Tears v. Bos.

Sci. Corp., 344 F. Supp. 3d 500, 513 (S.D.N.Y. 2018)(analyzing a

separate breach of implied warranty of merchantability and breach

of implied warranty of fitness claim, but no general breach of

implied warranty); Saratoga Spa & Bath, Inc. v. Beeche Sys. Corp.,

656 N.Y.S.2d 787, 789 (1997)(same).

BMW argues that it is entitled to summary judgment on

Plaintiff’s breach of express and implied warranty claims, because

the Subject Vehicle and its soft close doors do not violate any

express affirmations and they are clearly “fit for the ordinary

purposes for which such goods are used.” Denny, 87 N.Y.2d 248, 258

(1995) (quoting N.Y. U.C.C. § 2-314(2)(c)). Defendants also seek

summary judgment on Plaintiff’s MMWA claim because such a claim

cannot be brought “unless the [defendant] obligated under the

warranty or service contract is afforded a reasonable opportunity

to cure.” 15 U.S.C. § 2310(e).

A. Implied Warranty Claims

The Court denies summary judgment on Plaintiff’s implied

warranty claims. As discussed above, in New York, implied warranty

of merchantability is governed by Section 2-314 of the New York

Uniform Commercial Code. That section provides, in pertinent part,

that “a warranty that the goods shall be merchantable is implied

in a contract for their sale if the seller is a merchant with

respect to goods of that kind.” N.Y.U.C.C. § 2-314(1). Defendants

are merchants of BMW vehicles with the SCAD door closing mechanism.

Further, “[i]n a breach of implied warranty action, the

inquiry is not whether there were safer designs available.” Groome

v. Matsushita Elec. Corp. of Am., No. 92-cv-3073, 2000 WL 341134,

at *6 (E.D.N.Y. Mar. 30, 2000); see Bah v. Nordson Corp., No. 00-

cv-9060, 2005 WL 1813023, at *13 (S.D.N.Y. Aug. 1, 2005)

(“[W]hether or not there were feasible safer alternative designs

. . . is irrelevant to the merits of Plaintiff’s breach of implied

warranty claim.”); Gonzalez by Gonzalez v. Morflo Indus., Inc.,

931 F. Supp. 159, 165 (E.D.N.Y.1996) (“Plaintiff's recovery in a

breach of warranty action depends on a showing that the product

was not minimally safe for its expected purpose, regardless of the

feasibility of making the product safer.”).

To prevail on a claim for breach of implied warranty of

merchantability, a plaintiff must show that the product at issue

is not “fit for the ordinary purposes for which such goods are

used” and it caused injury as a result. Brazier v. Hasbro, Inc.,

No. 99-cv-11258, 2004 WL 515536, *4 (S.D.N.Y. 2004) (citing Denny,

662 N.E.2d at 732). In determining whether the product was

unmerchantable, the focus is on “the expectations for the

performance of the product when used in the customary, usual, and

reasonably foreseeable manners.” Denny, 662 N.E.2d at 736. “A

warranty of fitness for ordinary purposes does not mean that the

product will fulfill a buyer’s every expectation,” but rather

ensures that the product is minimally safe for its expected

purpose. Id. at 736 n.4.

Defendants argue only that the SCAD is fit for its

ordinary purposes, but the Court finds that there are genuine

disputes of material facts as to the “ordinary purpose” of the

soft-close automatic door. As Plaintiff argues, a reasonable jury

could find that the “SCAD is not fit for the ordinary purpose for

which it is to be used because the purpose of a car door is to

ensure a driver’s security and safety while operating a vehicle,”

and not to “put a passenger in danger of having a finger

dismembered on the off-chance that a door closes within the

parameters of SCAD’s motion activation.” (ECF No. 127, Pl. Mot.

in Opp’n. at 25.) A reasonable jury could at least infer from the

record that the SCAD runs afoul of reasonable expectations of

safety. Indeed, from Plaintiff’s evidence, it appears that there

are dozens of accidents related to the SCAD. BMW AG acknowledged

there have been 44 reported BMW SCAD-related injuries. (ECF No.

127-7, Exh. 7, Bruecklmeier Dep. Tr. at 146.) BMW NA was aware of

at least 21 BMW SCAD-related injuries. (ECF No. 125- 5, Exh. 5,

Baur Dep. Tr. at 296-298.) BMW MC contends that to its knowledge,

the only person injured as a result of SCAD it knew about was Mr.

Boateng. (ECF No. 125-4, Exh. 4, Neil Guthrie Deposition

Transcript (“Guthrie Dep. Tr.”) at 39.)

Defendants argue that “the Vehicle clearly provides for

a minimal level of quality and is suited for its ordinary purpose,”

and cites Plaintiff’s continued use of the car itself as proof.

(ECF No. 121, BMW Mot. for Summ. J. at 25.) But a reasonable jury

could readily find that the potential of the SCAD to amputate a

finger, and the dozens of reported accidents involving the SCAD,

are inconsistent with what ordinary consumers would expect of their

car door. See Denny, 87 662 N.E.2d 730, 738 (1995)(concluding

that “ a rational fact finder could have simultaneously concluded

that the [vehicle’s] utility as an off-road vehicle outweighed the

risk of injury resulting from rollover accidents and that the

vehicle was not safe for the ‘ordinary purpose’ of daily driving

for which it was marketed and sold.”) The parties dispute the

SCAD’s “minimal level of quality” and whether the “ordinary

purpose” of the SCAD should include the chance of causing someone

personal injury. Based the foregoing evidence, a reasonable jury

could conclude that the SCAD was not fit for the purpose for which

it was intended, and thus the Defendants’ motion for summary

judgment with respect to Plaintiff’s breach of implied warranty

claim is denied.

B. Express Warranty

The Court concludes that Plaintiff presents no evidence

and thus cannot prove that Defendants breached an express warranty.

In New York, “a cause of action on an express warranty asks only

that a manufacturer make good on the contractual commitment that

it voluntarily undertook by placing that warranty on its product.”

Bates v. Dow Agrosciences, L.L.C., 544, U.S. 431, 444 (2005). A

“seller can create an express warranty by affirmation, promise,

description or sample.” Kraft v. Staten Island Boat Sales, Inc.,

715 F. Supp. 2d 464, 472 (S.D.N.Y. 2010); Mill Printing &

Lithography Corp. v. Solid Waste Management Systems, Inc., 65 A.D.

590, 590-91 (App. Div. 2d Dept. 1978) (“An express warranty is

interpreted like a contract, and a Plaintiff can provide evidence

of the warranty through various means.”) Critically, to prevail

on an express warranty claim, a Plaintiff must demonstrate that

the “affirmation of fact or promise by the seller” was to “induce

the buyer to purchase and that the warranty was relied upon[.]”

Schimmenti v. Ply Gem Indus., 156 A.D.2d 658, 659 (App. Div. 2d

Dept., 1989) (quotation omitted)); see also Promuto v. Waste Mgmt.,

Inc., 44 F. Supp. 2d 628, 642 (S.D.N.Y.1999).

Mr. Boateng does not provide any evidence of the

existence of an express warranty agreement or that any warranty by

Defendants induced him to purchase the Subject Vehicle. Plaintiff

states in his opposition to Defendants’ motion for summary judgment

that the warning label about the SCAD’s potential dangers was

hidden in the 500-page owner’s manual. (ECF No. 127, Pl. Mot. in

Opp’n. at 25). First, the Court finds that the warning was not an

express warranty. A warning in fact does not act as a promise of

safety—it is just the opposite, because it warns that a product

could be unsafe in certain circumstances. Plaintiff also both

claims that he did not know of the dangers in the SCAD design, but

he still “relied on BMW’s special knowledge that the product it

was advertising, marketing and placing in the stream of commerce

was safe and would not result in an amputated thumb or body limb.”

(Id. at 28.) First, even if Plaintiff had knowledge of the

warnings regarding the SCAD in the owner’s manual, his knowledge

is not an “affirmation of fact or promise by the seller.”

Schimmenti, 156 A.D.2d at 659. Second, Mr. Boateng did not know

about the warning, so even if it were more express in its promise

of safety, he could not have relied on it.

As such, a jury could not find for Plaintiff on his claim

for breach of express warranty based on the lack of disclosure of

the full dangers and injuries related to the SCAD by Defendants,

because a breach of express warranty claim in New York requires a

showing that Defendants provided an affirmation of fact or promise.

Donald v. Shinn Fu Co. of America, 2002 WL 32068351, *5 (E.D.N.Y.

Sept. 4, 2002) (granting summary judgment for the defendant on a

breach of express warranty claim where “a review of the record

reveals no express warranties at all.”) In his only mention of

express warranties, Plaintiff simply restates the elements,

asserts that Mr. Boateng “relied on BMW’s special knowledge,” and

that “Mr. Boateng made clear he had no knowledge of SCAD when he

purchased his vehicle.” (ECF No. 127, Pl. Mot. in Opp’n. at 28.)

Plaintiff appears to have abandoned his express warranty claim

because he has not proffered evidence in support of the express

warranty claim in opposing Defendants’ motion for summary

judgment. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d

Cir. 1995)(appellants can be deemed to have abandoned issues they

fail to raise before the district court); see also Bozeman v.

United States, 780 F.2d 198, 199 n. 4 (2d Cir.1985) (“[Plaintiff]

did not raise or brief that issue in this appeal and we therefore

treat that claim as abandoned.”). Given the lack of evidence from

which a jury could find an express warranty and that Defendants

breached it, Defendants’ motion for summary judgment on

Plaintiff’s express warranty claim is granted.

C. Magnuson-Moss Warranty Act (“MMWA”)

For reasons provided in this Court’s analysis of the

breach of implied warranty of merchantability analysis, the Court

denies Defendants’ motion for summary judgment on Plaintiff’s

claim under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §

2301 et seq. The MMWA provides, in relevant part, that “a consumer

who is damaged by the failure of a supplier, warrantor, or service

contractor to comply with any obligation under this chapter, or

under a written warranty, implied warranty, or service contract,

may bring suit for damages and other legal and equitable relief.”

15 U.S.C. § 2310(d)(1). “To state a claim under the MMWA,

plaintiffs must adequately plead a cause of action for breach of

written or implied warranty under state law.” See Garcia v.

Chrysler Grp. LLC, 127 F. Supp. 3d 212, 226 (S.D.N.Y. 2015); see

also Cali v. Chrysler Grp. LLC, No. 10-CV-07606, 2011 WL 383952,

at *4 (S.D.N.Y. Jan. 28, 2011) (“[C]laims under the Magnuson-Moss

Act stand or fall with the express and implied warranty claims

under state law.” (quoting Clemens v. DaimlerChrysler Corp., 534

F.3d 1017, 1022-23 (9th Cir. 2008))), aff’d, 426 F. App’x 38 (2d

Cir. 2011). Because this Court denies Defendants’ motion for

summary judgment on Plaintiff’s breach of implied warranty claim,

it also denies summary judgment on Plaintiff’s MMWA claim, insofar

as it seeks additional relief on the implied warranty claim; and

grants summary judgment on Plaintiff’s MMWA express warranty

claim.

VI. Negligent Misrepresentation (Count V) & Fraudulent

Concealment (Count VI)

For the reasons below, the Court grants summary

judgment on Plaintiffs’ claims of negligent misrepresentation and

fraudulent concealment concerning the safety of the SCAD. In New

York, a claim for negligent misrepresentation requires the

plaintiff to allege: (1) the existence of a special or privity-

like relationship imposing a duty on the defendant to impart

correct information to the plaintiff; (2) that the information was

incorrect; and (3) reasonable reliance on the information.

Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 114 (2d Cir.

2012) (citing Hydro Investors, Inc. v. Trafalgar Power Inc., 227

F.3d 8, 20 (2d Cir. 2000)).

Under the “duty to impart correct information” element,

“New York strictly limits negligent misrepresentation claims to

situations involving ‘actual privity of contract between the

parties or a relationship so close as to approach that of

privity.’” Anschutz Corp., 690 F.3d at 114 (quoting In re Time

Warner Inc. Sec. Litig., 9 F.3d 259, 271 (2d Cir. 1993)).

“[L]iability for negligent misrepresentation has been imposed only

on those persons who possess unique or specialized expertise, or

who are in a special position of confidence and trust with the

injured party such that reliance on the negligent

misrepresentation is justified.” Kimmell v. Schaefer, 675 N.E.2d

450 (N.Y. 1996). In the commercial context, for a negligent

misrepresentation claim, a closer degree of trust between the

parties than that of the ordinary buyer and seller is required to

establish the “existence of . . . a special relationship . . .

[capable of] giv[ing] rise to an exceptional duty regarding

commercial speech and justifiable reliance on such speech.” Id.

at 264.

Similarly, “[a] cause of action for fraudulent

concealment requires proof of the elements of fraud based on a

misrepresentation . . . as well as ‘an allegation that the

defendant had a duty to disclose material information and that it

failed to do so.’” Id. (quoting P.T. Bank Cent. Asia v. ABN AMRO

Bank N.V., 301 A.D.2d 373, 376 (1st Dep’t 2003)). A duty to

disclose in fraudulent concealment claims arises in one of three

circumstances: where the parties are in a fiduciary relationship;

under the “special facts doctrine,” where “one party possesses

superior knowledge, not readily available to the other, and knows

that the other is acting on the basis of mistaken knowledge”; or

where a party has made a partial or ambiguous statement, whose

full meaning will only be made clear after complete disclosure.

Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 123

(2d Cir. 1984); Brass v. Am. Film Technologies, Inc., 987 F.2d

142, 150 (2d Cir. 1993). As discussed below, because Plaintiff

has not proffered evidence demonstrating a special relationship or

fiduciary relationship with Defendants beyond the commercial

transaction involving the purchase of the Subject Vehicle, the

Court declines to address any of the other elements of Mr.

Boateng’s negligent misrepresentation or fraudulent concealment

claims.

In general, a simple commercial relationship, such as

that between a buyer and seller, does not constitute the kind of

“special relationship” or “fiduciary relationship” necessary to

support a negligent misrepresentation or fraudulent concealment

claim. See Dimon, Inc. v. Folium, Inc., 48 F. Supp. 2d 359, 373

(S.D.N.Y. 1999); see also K.M.L. Lab'ys Ltd. v. Hopper, 830 F.

Supp. 159, 168 (E.D.N.Y. 1993)(finding an “arms-length commercial

transaction” did not constitute a fiduciary relationship.) A

commercial relationship may become a special relationship,

however, where “the parties . . . enjoy a relationship of trust

and reliance ‘closer . . . than that of the ordinary buyer and

seller.’” Polycast Tech. Corp. v. Uniroyal, Inc., No. 87 Civ. 3297,

1988 WL 96586, at *10 (S.D.N.Y. Aug. 31, 1988) (citations omitted).

Courts have found a special relationship and duty, for example,

where defendants sought to induce plaintiffs into a business

transaction by making certain statements or providing specific

information with the intent that plaintiffs rely on those

statements or information. See Kimmell, 89 N.Y.2d at 264-65; New

York Islanders Hockey Club, LLP v. Comerica Bank-Texas, 71 F. Supp.

2d 108, 119 (E.D.N.Y. 1999).

Plaintiffs have not presented sufficient evidence to

establish any of the foregoing circumstances of inducement with

the intent to cause Plaintiff’s reliance, and the special or

fiduciary relationship necessary to sustain actions for negligent

misrepresentation and fraudulent concealment. Defendants assert

that the parties were involved in nothing more than a commercial

transaction, that BMW MC and BMW NA do not have retail licenses to

sell or distribute vehicles directly to consumers, and the

dealership sold the Subject Vehicle to Plaintiff who was not a

“known party” to any of the Defendants. (ECF Nos. 121, BMW Mot.

for Summ. J. at 26; 125-4, Exh. 4, Guthrie Dep. Tr. at 386, 390.)

Given that the dealership where Mr. Boateng purchased the Subject

Vehicle is not a named defendant, the Defendants (respectively in

the roles of distributor (BMW NA), manufacturer (BMW MC),

designer/headquarters (BMW AG), and holding company (BMW HC)) and

Mr. Boateng thus sit farther apart than ordinary seller and buyer.

(ECF No. 124, Pl. Resp. 56.1 ¶¶ 2-5.)

Mr. Boateng counters that though he did not interact

with the BMW entities in purchasing his Subject Vehicle, BMW has

an “agency relationship with its subsidiaries and distribution

centers” (ECF No. 124, Pl. Resp. 56.1 ¶¶ 46-52), and as such,

Defendants created an agency relationship with those who sold Mr.

Boateng his car. (ECF No. 127, Pl. Mot. in Opp’n. at 29.) But

whatever the relationship between BMW and its varied entities and

dealerships, the mere relationship between a corporation and a

consumer or customer is insufficient. Abu Dhabi Com. Bank v.

Morgan Stanley & Co. Inc., No. 08 Civ. 7508 SAS, 2013 WL 837536,

at *4 (S.D.N.Y. Mar. 6, 2013) (“Absent testimony from [plaintiff]

that there was direct contact, much less contact sufficient to

establish a ‘privity-like’ relationship, indirect evidence of a

single communication is simply too thin a reed on which to find a

triable issue of fact as to whether [plaintiff] had the requisite

special relationship with Morgan Stanley.”); see Silvercreek

Mgmt., Inc. v. Citigroup, Inc., 346 F. Supp. 3d 473, 501 (S.D.N.Y.

2018) (requiring plaintiff to evince they were “a member of some

very small group of persons for whose [defendants’] guidance []

was made” to establish a special relationship).

Plaintiff’s proffered evidence is not sufficient to

establish a special relationship between Plaintiffs and

Defendants. Consequently, the Court grants summary judgment on

Plaintiff’s negligent misrepresentation and fraudulent concealment

claims.

VII. Deceptive Trade Practice (Count XI – New York’s General

Business Law § 349)

The Court denies summary judgment to Defendants on

Plaintiff’s claims under Section 349 of New York’s General Business

Law (“GBL”). GBL § 349 prohibits “[d]eceptive acts or practices

in the conduct of any business, trade or commerce or in the

furnishing of any service in this state.” GBL § 349(a). Plaintiff

must establish three elements in a GBL § 349 claim: that “a

defendant has engaged in (1) consumer-oriented conduct that is (2)

materially misleading and that (3) [the] plaintiff suffered injury

as a result of the allegedly deceptive act or practice.” Maurizio

v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (per curiam); see

Capitol Records, Inc. v. Wings Digital Corp., 218 F. Supp. 2d 280,

285–86 (S.D.N.Y. 2002); Oden, 330 F. Supp. 3d at 901 (citing Daniel

v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 186 (E.D.N.Y. 2018)).

“[A] claim for deceptive business practices under GBL

§ 349 . . . requires evidence of a causal connection between some

injury to plaintiffs and some misrepresentation made by

defendants.” Oden, 330 F. Supp. 3d at 902 (quoting Small v.

Lorillard Tobacco Co., 252 A.D.2d 1, 15 (1st Dep’t 1998), aff’d,

94 N.Y.2d 43 (1999)). The phrase “deceptive acts or practices”

under the statute does not refer to the mere invention of a scheme

or marketing strategy, but an actual misrepresentation or omission

to a consumer. Goshen v. Mut. Life Ins. Co. of New York, 774

N.E.2d 1190, 1195 (N.Y. 2002); see Gaidon v. Guardian Life Ins.

Co. of Am., 725 N.E.2d 598 (N.Y. 1999). As detailed below, because

an omission of material information qualifies as a “deceptive act[]

or practice[]” with respect to GBL § 349, the Court applies an

analysis similar to the failure to warn claim, as opposed to the

analysis for the more stringent breach of express warranty

standard, which requires an “affirmation of fact or promise by the

seller,” Schimmenti, 156 A.D.2d at 659.

GBL § 349 protects consumers, in other words, “those

who purchase goods and services for personal, family or household

use.” Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 73 (1st

Dep’t 2000). To establish that a practice was “consumer-oriented”

the plaintiff needs to establish “that the acts or practices have

a broader impact on consumers at large.” Oswego Labors’ Local 214

Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744

(N.Y. 1995). “[I]n the case of omissions in particular . . . the

statute surely does not require businesses to ascertain consumers’

individual needs and guarantee that each consumer has all relevant

information specific to its situation.” Id. at 745. Instead, for

claims that a business has omitted material facts, the plaintiff

must demonstrate that “the business alone possesses material

information that is relevant to the consumer and fails to provide

this information.” Id.; Kyszenia v. Ricoh USA, Inc., No. 20-cv-

2215, 2022 WL 326981, at *4 (E.D.N.Y. Feb. 3, 2022)(“[A] plaintiff

claiming an omission constitutes actionable deception must show

either that the business alone possessed the relevant information,

or that a consumer could not reasonably obtain the information.”)

Defendants assert that they are entitled to summary

judgment because there are no transactions between Plaintiff and

any of the Defendants and because there is no evidence that

Defendants have deceived or misled Plaintiff. (ECF No. 121, Def.

Mot. for Summ. J., 28-29.) For the reasons below, the Court

disagrees as a matter of law that Defendants cannot be held

accountable as a party under GBL § 349. The Court also finds that

a reasonable juror could find that Defendants’ omissions about the

dangers of SCAD could have misled Mr. Boateng and consumers to be

injured.

A. Consumer-Oriented Conduct

Even without a direct transaction between the parties,

Plaintiff has established the requisite GBL § 349 element that

Defendants’ conduct and potentially “deceptive act” were

“consumer-oriented.” Oden, 330 F. Supp. 3d at 901. In fact,

Courts find that “[s]ingle shot transactions” or “[p]rivate

contract disputes, unique to the parties” are not governed by GBL

§ 349. Oswego, 647 N.E.2d at 744; see also MaGee v. Paul Revere

Life Ins. Co., 954 F. Supp. 582, 586 (1997) (“[T]he injury must be

to the public generally as distinguished from the plaintiff

alone.”). The aim of GBL § 349 is to prohibit “[d]eceptive acts

or practices in the conduct of any business, trade or commerce or

in the furnishing of any service” in New York. GBL § 349(a). “The

statute provides both for enforcement by the attorney general, id.

§ 349(b), and a private right of action to any person injured by

the deceptive acts or practices committed by a business, id. §

349(h).” Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47,

51 (2d Cir. 1992).

Defendants are in the business of designing,

manufacturing, distributing, and advertising BMW vehicles placed

in the stream of commerce to be sold to consumers. BMW Defendants

“alone”, rather than any single dealership or retailer, have the

“material information that is relevant to” Mr. Boateng and other

consumers interested in the manufacturing and representation of

BMW vehicles’ safety to the public. Oswego, 647 N.E.2d 741, 745

(N.Y. 1995). Weiss, the case that Defendants cite in their motion

for summary judgment found that the manufacturers had no contact

with plaintiffs, noting that they were subcontractors who

transacted for the product with the manufacturers first, “thereby

reducing any potential that a customer in an inferior bargaining

position would be deceived.” Weiss v. Polymer Plastics Corp., 802

N.Y.S.2d 174 (2005). In the instant case, however, dealerships

and retailers helping BMW Defendants sell their cars cannot be

said to protect the consumer from deception, as they pass on the

same information about the vehicles, or lack of information, that

only BMW Defendants are aware. Furthermore, courts in the Second

Circuit have consistently considered lawsuits against

manufacturers and distributors, and not just retailers who

directly transact with consumers to be in alignment with GBL §

349’s purpose of protecting consumers from material

misrepresentations from corporations. See Eidelman v. Sun Prod.

Corp., No. 21-cv-1046, 2022 WL 1929250, at *1 (2d Cir. June 6,

2022)(adjudicating a GBL § 349 claim against a laundry detergent

manufacturer); In re Amla Litig., 320 F. Supp. 3d 578, 592

(S.D.N.Y. 2018)(certifying a class action claiming violation of

GBL § 349 by a hair relaxer kit manufacturer); Haag v. Hyundai

Motor Am., 969 F. Supp. 2d 313, 315 (W.D.N.Y. 2013)(adjudicating

a GBL § 349 claim against Hyundai Motor America); Koenig v. Boulder

Brands, Inc., 995 F. Supp. 2d 274, 287 (S.D.N.Y. 2014)(adjudicating

an GBL § 349 claim against a consumer food products company).

B. Materially Misleading

Plaintiff has also proffered evidence of conduct by

Defendants “likely to mislead a reasonable consumer acting

reasonably under the circumstances.” Chufen Chen v. Dunkin’

Brands, Inc., 954 F.3d 492, 500 (2d Cir. 2020). BMW Defendants

knew that there had been injuries apparently related to the SCAD

and conducted their own inspections into these occurrences. Peter

Baur, the Manager of Product Analysis for BMW NA, reported knowing

about a dozen SCAD-related injuries from the Subject Vehicle’s

SCAD model. (ECF Nos. 126, Def. Reply 56.1 ¶ 61; 125-5, Exh. 5,

Baur Dep. Tr. at 9-10.) BMW NA was aware of 21 injuries potentially

related to SCAD. (ECF No. 126, Def. Reply 56.1 ¶ 64.) BMW had

also undergone at least one external investigation with the KBA.

In the KBA correspondence, there were at least 44 reports of

injuries in connection with BMW doors “claimed” to be equipped

with SCAD, although the Defendants assert that “it remains in

dispute that SCAD caused such incidents.” (ECF Nos. 126, Def.

56.1 Reply ¶¶ 59-61; 127-7, Exh. 7, Bruecklmeier Dep. Tr. at 146.)

The KBA also raised concerns about whether the warning presented

in the owner’s manual was sufficient to ensure safe use of the

SCAD. (ECF 127-7, Exh. 7, Bruecklmeier Dep. Tr. at 174.)

Specifically, KBA “alleged” that BMW owners who did not know about

the owner’s manual, and therefore had not read it, could be injured

by SCAD. (Id.) BMW, having been investigated by KBA in in 2006,

has not implemented any additional safety or warning measures in

response to SCAD-related injuries or updated its warning in the

manual. (Id. ¶ 63.) A reasonable jury could find that the reported

dangers of the SCAD, including the results of the KBA

investigation, could have a “broader impact on consumers at large.”

C. Injury Suffered as a Result

Contrary to Defendants’ arguments about reliance, the

undisputed fact that Mr. Boateng never saw any warnings about the

SCAD does not preclude him from prevailing on this claim. Unlike

the negligent misrepresentation and fraudulent concealment claims,

with respect to GBL § 349, Mr. Boateng need not establish that he

actively relied on the BMW’s representations in deciding to

purchase his Subject Vehicle, or that his decision would have

changed but for BMW’s omissions. Kurtz v. Kimberly-Clark Corp.,

321 F.R.D. 482, 535 (E.D.N.Y. 2017) (“Reliance [ ] is not an

element of plaintiff's claims under the New York General Business

Law.”); Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675–

76 (N.Y. 2012) (“To the extent that the Appellate Division order

imposed a reliance requirement on General Business Law §§ 349 and

350 claims, it was error. Justifiable reliance by the Plaintiff

[on the misrepresentation or omission] is not an element of the

statutory claim.”).

In any case, even if reliance were relevant, Plaintiff

has proffered sufficient evidence to defeat Defendants’ motion for

summary judgment. Mr. Boateng has demonstrated that his personal

injury was caused by the lack of awareness that the SCAD could

result in amputation. Plaintiff testified that, prior to the

accident, he did not “believe that the door could self-close from

a distance of approximately one foot.” (ECF No. 123-6, Exh. F,

Boateng Dep. Tr. at 87). He testified that his accident happened

“with no warning” and a jury could find that had Mr. Boateng known

that the SCAD could amputate or severely injure his finger beyond

a “pinching”, he would have acted differently. Accordingly, this

Court denies summary judgment on Plaintiff’s New York General

Business Law § 349 claim.

VIII. Disclosure of Automobile Information (Count XII –

Violation of 15 U.S.C. § 1232)

This Court concludes that Plaintiff does not have a

viable claim for violations of 15 U.S.C. § 1232(g), based on

Defendants’ failure to include on the new vehicle label “safety

concerns conveyed to them by the [National Highway Traffic Safety

Administration].” (ECF No. 123-1, Exh. A, Am. Compl. ¶¶ 240, 243-

244). Defendants correctly assert that there is no private right

of action for a violation of 15 U.S.C. § 1232(g). Plaintiff

provides no statutory basis, and the Court can find none, for

finding a private right of action under § 1232(g)of the statute,

which outlines the duties, authorities, and enforcement powers of

the Automobile Information Disclosure Act of 1958 (the “Act”). 15

U.S.C. §§ 1231-1233. The Act regulates basic information vehicles

should provide consumers on the new vehicle label, but does not

provide a cause of action for individual drivers. 15 U.S.C. §

1232(g). Without a showing of congressional intent, “a cause of

action does not exist and courts may not create one, no matter how

desirable that might be as a policy matter, or how compatible with

the statute.” See Alexander v. Sandoval, 532 U.S. 275, 286 (2001);

see, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99

S.Ct. 2479, 61 L.Ed.2d 82 (1979) (“Implying a private right of

action on the basis of congressional silence is a hazardous

enterprise, at best.”).

Plaintiff’s cited cases do not expressly state that

there is a private cause of action provided by 15 U.S.C. § 1232(g).

In Peguero v. Toyota Motor Sales, USA, Inc., the Act is mentioned

as a secondary cite to support the proposition that the Defendants

had a duty to disclose, but does not expressly find a private cause

of action. 2021 WL 2910562 (C.D. Cal. Apr. 26, 2021). The other

case Plaintiff cites, In re Subaru Battery Drain Products Liab.

Litig., speaks to whether the Act exhaustively demands the

information an automobile manufacturer must include on its new

vehicle labels. 2021 WL 1207791, at *25 (D. N. J. Mar. 31, 2021).

Without a private cause of action expressly provided by the Act,

whether the Act exhaustively describes the information

manufactures should include on vehicles is irrelevant.

The Court finds that statutes “that focus on the person

regulated rather than the individuals protected create no

implication of an intent to confer rights on a particular class of

persons.” Alexander at 289; see also Bellikoff v. Eaton Vance

Corp., 481 F.3d 110, 116 (2d Cir. 2007) (“[T]he absence of ‘rights-

creating language’ indicates a lack of congressional intent to

create private rights of action.”). The Act clearly imposes a

messaging “duty” on “[e]very manufacturer of new automobiles

distributed in commerce,” but does not confer privately

enforceable rights to consumers such as Mr. Boateng. Defendants’

summary judgment motion is granted on Plaintiff’s claim pursuant

to 15 U.S.C. § 1232.

IX. Emotional Distress (Count XIII – Negligent Infliction of

Emotional Distress)

The Court next addresses Plaintiff’s claim for

negligent infliction of emotional distress (NIED) for the

amputation of his finger. Under New York law, negligent

infliction of emotional distress requires a showing of (1) extreme

and outrageous conduct, (2) a causal connection between the conduct

and the injury, and (3) severe emotional distress. Simpson v.

Uniondale Union Free Sch. Dist., 702 F. Supp. 2d 122, 134 (E.D.N.Y.

2010); Meadows v. Planet Aid, Inc., 676 F. Supp. 2d 83, 97–98

(E.D.N.Y. 2009) (citations and internal quotation marks

omitted);(finding liability for negligent infliction of emotional

distress only where the “defendant engaged in conduct so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.”)

New York law also recognizes a cause of action where

there exists “an especial likelihood of genuine and serious mental

distress, arising from . . . special circumstances, which serves

as a guarantee that the claim is not spurious.” Baker v. Dorfman,

239 F.3d 415, 421 (2d Cir. 2000)(citing Johnson v. State, 334

N.E.2d 590 (N.Y. 1975)). The requisite “genuine and serious”

mental distress can be proven with evidence of the “causation and

substantiality of the harm suffered.” Johnson , 334 N.E.2d 590

(N.Y. 1975)

Under New York law, there are two generally accepted

methods of proving a claim of negligent infliction of emotional

distress: the “bystander” and the “direct duty” theories. See

Baker, 239 F.3d at 415. For a claim of negligent infliction of

emotional distress under a “direct duty theory,” “it is well

settled that the ‘circumstances under which recovery may be had

for purely emotional harm are extremely limited and, thus, a cause

of action seeking such recovery must generally be premised upon a

breach of a duty owed directly to the plaintiff which either

endangered the plaintiff's physical safety or caused the plaintiff

fear for his or her own physical safety.’” Simpson, 702 F. Supp.

2d at 135; Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146,

148 (N.Y. App. Div.1986)).

A negligent infliction of emotional distress claim

cannot be asserted if it is “essentially duplicative of tort or

contract causes of action.” Djangmah v. Falcione, 2013 WL 208914,

*9 (S.D.N.Y. Jan. 18, 2013) (quoting Wolkstein v. Morgenstern, 275

A.D.2d 635, 713 N.Y.S.2d 171 (1st Dep’t 2000)); Moore v. City of

New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y. 2002) (“The New York

Court of Appeals has strongly cautioned against allowing emotional

distress claims to be brought where other tort remedies are

available.”) (citing Fischer v. Maloney, 373 N.E.2d 1215, 1217

(N.Y. 1978)). “The rationale for this rule is grounded in the

underlying purpose of the common law tort of negligent infliction

of emotional distress which ‘has its roots in the acknowledgment

by the courts of the need to provide relief in those circumstances

where traditional theories of recovery do not.’” Virgil v. Darlak,

2013 WL 4015368, at *10 (W.D.N.Y. Aug. 6, 2013) (quoting Lee v.

McCue, 410 F. Supp. 2d 221, 226-27 (S.D.N.Y. 2006), aff’d, 218 F.

App’x 26 (2d Cir. 2007)).

Mr. Boateng has suffered from the loss of his thumb

from the incident at the center of this case. On the record before

the Court, as a matter of law, summary judgment must be granted to

Defendants on Plaintiff’s claim of negligent infliction of

emotional distress. As an initial matter, there is no requisite

“direct duty” for this claim. Although Defendants certainly owe

a general duty to consumers to prevent dangerous design and

manufacturing defects, this duty is not a special one owed

specifically to Mr. Boateng. Druschke v. Banana Republic, Inc.,

359 F. Supp. 2d 308, 315 (S.D.N.Y.2005) (the “direct duty” standard

for an NIED claim “is far more specific than the more generalized

duty to avoid negligently injuring another”); compare Mortise v.

United States, 102 F.3d 693, 696–97 (2d Cir. 1996) (affirming

summary judgment dismissing NIED claim because National Guardsmen

had only a “generalized duty” to prevent unreasonable risks to

citizens passing through a training exercise) with Broadnax v.

Gonzalez, 2 N.Y.3d 148, 155 (N.Y.2004) (special duty of care owed

by obstetrician to expectant mother supported NIED claim where

malpractice resulted in miscarriage).

Furthermore, Mr. Boateng’s NIED claim seeks damages

for the same circumstances and injuries, physical and emotional,

that his tort claims seek. His injury, allegedly caused by BMW

Defendants, may be remedied through traditional theories of

recovery. The alleged conduct of Defendants, potentially having

designed, manufactured, or failed to warn of defects in a product,

also does not rise to the “outrageous” conduct or indecent behavior

that a claim of NIED requires. Defects in innovation, design, and

manufacturing are not considered “utterly intolerable in a

civilized community,” even if society does expect product

companies to hold themselves to the best standards for their

consumers. Meadows, 676 F. Supp. 2d at 97–98.

Granting of summary judgment on Plaintiff’s NIED claim

does not minimize the severe emotional distress that Mr. Boateng

has endured or preclude him from seeking damages on that basis if

he prevails on his other claims. Plaintiffs who have suffered

physical injuries such as Mr. Boateng’s amputation of a major,

visible body part present “an especial likelihood of genuine and

serious mental distress, arising from . . . special circumstances,

which serves as a guarantee that the claim is not spurious.”

Baker, 239 F.3d at 421 (citation omitted.) Nonetheless, as a

matter of law, the Court must grant summary judgment on this claim.

CONCLUSION

Based on the foregoing analysis, Defendants’ motions

to preclude Dr. Pugh’s testimony are DENIED as to his opinion on

the design of the Subject Vehicle’s SCAD, and as to his opinion on

the adequacy of the warnings about the SCAD. Defendants’ motions

for summary judgment are GRANTED as to Plaintiff’s manufacturing

defect, breach of express warranty, negligent misrepresentation,

fraudulent concealment, the Automobile Information Disclosure Act,

and negligent infliction of emotional distress claims.

Defendants’ motions for summary judgment are DENIED as to

Plaintiff’s design defect and failure to warn claims, as well as

the breach of implied warranty, Magnuson-Moss Warranty Act, and

New York General Business Law claims.

The parties are directed to confer and provide a joint

status report within seven business days of this Order to advise

the Court how they plan to proceed with this case. The parties

are also directed to schedule a settlement conference with

Magistrate Judge Locke and report to the Court regarding the

outcome within two business days thereafter.

SO ORDERED.

DATED: September 20, 2022

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge