# Boateng v. BMW of North America, LLC

> District Court, E.D. New York · September 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10308513

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
substantia

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308513. Public record. Not legal advice.