Boateng v. BMW of North America, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GODWIN BOATENG,

MEMORANDUM AND ORDER

Plaintiff,

17-CV-209(KAM)(SIL)

-against-

BAYERISCHE MOTOREN WERKE

AKTIENGESELLSCHAFT a German

Corporation, BMW OF NORTH AMERICA, LLC,

BMW MANUFACTURING COMPANY, LLC, BMW OF

NORTH AMERICA, INC., BMW GROUP, INC.,

BMW (US) HOLDING CORP.,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Before the Court are the parties’ respective pre-trial

motions in limine. (See ECF No. 147, Defendants’ Omnibus Mot. in

Lim. to Exclude Evidence; ECF No. 150, Plaintiff’s Mot. in Lim.

No. 1; ECF No. 153 Plaintiff’s Mot. in Lim. No. 2.)

For the reasons set forth below, the Court rules as follows:

•

Defendants’ motion to exclude evidence of “other dissimilar

incidents” is GRANTED in part and DENIED in part. (See infra

Discussion Section I.A.2.)

•

Defendants’ motion to exclude photographs of Plaintiff’s

injury is DENIED. (See infra Discussion Section I.B.2.)

•

Defendants’ motion to exclude evidence not produced in

discovery is DENIED. (See infra Discussion Section I.C.2.)

•

The Court DENIES as moot Defendants’ motion to exclude news

media coverage in light of Plaintiff’s withdrawal of the

exhibits. (See infra Discussion Section I.D.)

•

Defendants’ motion to exclude evidence of recalls unrelated

to BMW’s soft close door is GRANTED. (See infra Discussion

Section I.E.)

•

Defendant’s motion to exclude Plaintiff’s demonstrative

videos of the Subject Vehicle is GRANTED in part and DENIED

in part. (See infra Discussion Section I.F.)

•

Plaintiff’s first motion in limine to exclude evidence

suggesting external forces caused Plaintiff’s injury is

DENIED. (See infra Discussion Section II.A.2.)

•

Plaintiff’s second motion in limine to exclude evidence of

Defendants’ compliance with FMVSS No. 206 is GRANTED. (See

infra Discussion Section II.B.)

BACKGROUND

The court assumes familiarity with the underlying facts, but

will briefly describe the facts that are relevant to these motions.

The court refers to its Summary Judgment Decision for additional

factual background. Boateng v. Bayerische Motoren Werke

Aktiengesellschaft, No. 17-CV-209 (KAM) (SIL), 2022 WL 4357555, at

*2-7 (E.D.N.Y. Sept. 20, 2022).

On July 6, 2016, Plaintiff Godwin Boateng (“Plaintiff” or

“Mr. Boateng”) suffered an injury to his right hand. Id. at *2.

Plaintiff was exiting from the driver's side door of his 2013 BMW

X5 (“Subject Vehicle”), on a narrow street when he moved back to

avoid oncoming traffic. Id. Mr. Boateng’s 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.

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. In other

words, BMW AG designed the Subject Vehicle and the “soft-close

automatic door” (SCAD) technology. Id. BMW MC installs the SCAD

in various models and years of BMW vehicles. Id. 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. Per Federal Motor Vehicle

Safety Standard (“FMVSS”) No. 206, a door must have a “fully

latched position and a secondary (partially closed) latch

position.” Id. 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.

LEGAL STANDARD

I. Motions in Limine

“The purpose of a motion in limine is to allow the trial court

to rule in advance of trial on the admissibility and relevance of

certain forecasted evidence.” Hopkins v. Nat'l R.R. Passenger

Corp., No. 08-CV-2965 (NGG) (RML), 2016 WL 8711718, at *2 (E.D.N.Y.

Apr. 29, 2016); see also Luce v. United States, 469 U.S. 38, 40

n.2 (1984) (defining such motions as “any motion, whether made

before or during trial, to exclude anticipated prejudicial

evidence before the evidence is actually offered”). “Evidence

should be excluded on a motion in limine only when the evidence is

clearly inadmissible on all potential grounds.” United States v.

Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). “[C]ourts

considering a motion in limine may reserve decision until trial,

so that the motion is placed in the appropriate factual context.”

Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011)

(citation omitted). Further, a district court’s ruling on a motion

in limine is preliminary and “subject to change when the case

unfolds.” Luce, 469 U.S. at 41.

II. Motions in Limine

Federal Rule of Evidence 402 provides that “[r]elevant

evidence is admissible unless any of the following provides

otherwise: the United States Constitution; a federal statute;

these rules; or other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.” Fed. R. Evid. 402. Thus,

“unless an exception applies, all ‘[r]elevant evidence is

admissible.’” United States v. White, 692 F.3d 235, 246 (2d Cir.

2012) (quoting Fed. R. Evid. 402). Rule 401 provides that

“[e]vidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” Fed.

R. Evid. 401. The Second Circuit has characterized this relevance

standard as “very low.” See White, 692 F.3d at 246 (quoting United

States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir. 2008)). Indeed,

“[t]o be relevant, evidence need not be sufficient by itself to

prove a fact in issue, much less to prove it beyond a reasonable

doubt.” United States v. Abu-Jihaad, 630 F.3d 102, 132 (2d Cir.

2010).

Under Federal Rule of Evidence 403, “[t]he court may exclude

relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed.

R. Evid. 403. “[W]hat counts as the Rule 403 ‘probative value’ of

an item of evidence, as distinct from its Rule 401 ‘relevance,’

may be calculated by comparing evidentiary alternatives.” Old

Chief v. United States, 519 U.S. 172, 184 (1997). In short, Rule

403 requires “the district court [to] make a conscientious

assessment of whether unfair prejudice substantially outweighs

probative value” with regard to each piece of proffered evidence.

Al-Moayad, 545 F.3d at 160 (quoting United States v. Salameh, 152

F.3d 88, 110 (2d Cir. 1998) (per curium)).

DISCUSSION

I. Defendants’ Motion

Defendants have filed a single omnibus motion in limine

seeking to exclude: (i) evidence of other incidents that Defendants

contend are “dissimilar”; (ii) photographs of Plaintiff’s right

thumb shortly after the accident that Defendants contend are unduly

prejudicial; (iii) documents not produced by Plaintiff during

discovery; (iv) media coverage of Plaintiff’s injury; (v) evidence

of recalls that Defendants contend are “unrelated and irrelevant”

to Plaintiff’s accident; and (vi) videos recorded by Plaintiff and

his counsel showing the door closure of the Subject Vehicle. The

Court will consider each category of requested exclusions in turn.

A. Evidence of Other Incidents

Defendants seek to exclude evidence of other similar

incidents (“OSI” evidence) proffered by Plaintiff, arguing that

Plaintiff “cannot meet his burden to establish that any of [the

incidents] are substantially similar to his alleged incident.”

(ECF No. 147-68, Defendants’ Memorandum of Law in Support of their

Omnibus Motion (“Def’t Mem.”), at 2.) Plaintiff argues in response

that (i) all of the incidents involved BMW vehicles; (ii) each

vehicle had SCAD-equipped doors; (iii) all of the incidents involve

a finger injury where the SCAD feature allegedly engaged; and (iv)

in each case there were no warnings or safety features. (ECF No.

148, Plaintiff’s Response in Opposition (“Pl. Opp.”), at 6-7.)

Plaintiff also stipulates that Exhibit 38 was dissimilar, as it

did not involve a SCAD-equipped door. (Id. at 6.) Defendants

argue in further support that Plaintiff has failed to make the

requisite showing of substantial similarity, and that it is not

clear he could do so with admissible evidence, in any event. (ECF

No. 149, Defendants’ Reply in Further Support (“Def’t Reply”), at

2-3.) The Court respectfully rejects Defendants’ narrow

interpretation of what constitutes a similar incident and finds

that, even if much of Plaintiff’s proffered evidence constitutes

inadmissible hearsay, the Plaintiff’s exhibits are comprised of

documents produced by BMW from its corporate files which may be

admissible to show notice, and in some cases causation.

1. Legal Principles

“It is well established that in a product liability case such

as this, OSI evidence may be admitted to prove negligence, a design

defect, notice of a defect, or causation.” In re: Gen. Motors LLC

Ignition Switch Litig., No. 14-MD-2543 (JMF), 2016 WL 796846, at

*2 (S.D.N.Y. Feb. 25, 2016) (citation omitted). “[B]efore such

evidence may be admitted for any purpose, [however,] the proponent

must establish the prior accidents' relevance by showing that they

occurred under the same or substantially similar circumstances as

the accident at issue.” Id. (citation omitted). “Whether a prior

accident occurred under ‘substantially similar’ conditions

necessarily ‘depends upon the underlying theory of the case, and

is defined by the particular defect at issue.’” Lidle v. Cirrus

Design Corp., 505 F. App'x 72, 74 (2d Cir. 2012) (summary order)

(quoting Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363, 367

(W.D.N.Y. 1999)).

Importantly, the degree of similarity required varies

depending upon the purpose for which the OSI evidence is being

offered. Where OSI evidence is offered to prove causation, courts

consider multiple factors including whether “(1) the products are

similar; (2) the alleged defect is similar; (3) causation related

to the defect in the other incidents; and (4) exclusion of all

reasonable secondary explanations for the cause of the other

incidents.” In re: Gen. Motors LLC Ignition Switch Litig., 2016

WL 796846, at *2 (citations omitted). “By contrast, the

substantial similarity standard is relaxed where OSI evidence is

offered to show notice; that is, the similarity in the

circumstances of the accidents can be considerably less than that

which is demanded when the same evidence is used for one of the

other valid purposes.” Id. (internal quotation marks and citation

omitted). As “this is a fact-specific inquiry that depends largely

on the theory of the underlying defect in a particular case,” a

“district court is owed considerable deference in its

determination of substantial similarity.” Bitler v. A.O. Smith

Corp., 391 F.3d 1114, 1126 (10th Cir. 2004), order clarified on

reh'g, 400 F.3d 1227 (10th Cir. 2005). If substantial similarity

is established, “[a]ny differences in the accidents . . . go to

the weight of the evidence.” Four Corners Helicopters, Inc. v.

Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992) (internal

quotation marks and citation omitted).

2. Application

Defendants seek to exclude a number of exhibits on the basis

that Plaintiff has failed to meet his burden to show that they are

substantially similar. Although Defendants offer an exhibit-by-

exhibit argument, the Court will discuss their objections broadly

and will discuss individual exhibits only as needed.

Defendants are correct that OSI evidence is admissible “only

upon a showing by its proponent that the other accidents occurred

under substantially similar circumstances and conditions.” (Def’t

Mem. at 3); see, e.g., Lidle, 505 F. App'x at 74 (noting the

proponent must establish the relevance by showing the accident

occurred “under the same or substantially similar circumstances”).

However, Defendants overplay their hand by incorrectly arguing

that Plaintiff “must provide expert testimony to establish that

the other incidents he seeks to have admitted involved similar

circumstances and were caused by a design defect related to the

soft close feature.” (Def’t Mem. at 4.) Defendants cite In re

Mirena IUD Prod. Liab. Litig., 202 F. Supp. 3d 304, 312 (S.D.N.Y.

2016), as support for this contention, but they misread the

opinion. In re Mirena stands for the prospect that “[e]xpert

testimony is required in cases involving complex causation issues,

including medical device cases, because without it the jury is

left to speculate on medical issues with which the average person

is unfamiliar.” Id. at 311. The Court finds no support for the

contention that expert testimony is a prerequisite to the admission

of the evidence in question in the instant case, which involves a

situation comprehensible to a layperson. See, e.g., id. at 312

(“That one's bone might break if crushed in a car crash is within

the ordinary experience of a lay person.”)

As noted above, Plaintiff argues that the incidents he wishes

to introduce occurred under “the same or substantially the same

circumstances” because “(i) all of the injuries in question involve

a BMW vehicle, as opposed to any other manufacturer; (ii) every

BMW vehicle involved had soft close automatic doors, and none of

the vehicles involve a non-SCAD equipped door; (iii) all of the

incidents involve a finger injury where a BMW customer’s finger

became trapped and crushed when the SCAD feature engaged; and (iv)

there were no warnings and safety features available.” (Pl. Opp.

at 6-7.) Plaintiff further argues that he may avail himself of

the relaxed “notice” standard for OSI evidence, although he

concedes that he is introducing the evidence to show both causation

and notice to the Defendants. (Id. at 7.) Because Plaintiff does

not differentiate between incidents offered for “notice” or

“causation” purposes, the Court will apply the heightened

“causation” standard to all as an initial matter.

As discussed previously, when using the “causation” standard

for OSI evidence, in weighing admissibility, courts may consider

whether “(1) the products are similar; (2) the alleged defect is

similar; (3) causation related to the defect in the other

incidents; and (4) exclusion of all reasonable secondary

explanations for the cause of the other incidents.” In re: Gen.

Motors LLC Ignition Switch Litig., 2016 WL 796846, at *2 (citation

omitted). As an initial matter, the Court finds that, to the

extent the other incidents involve (i) BMW vehicles (ii) with doors

utilizing the same SCAD mechanism as the Subject Vehicle (iii)

closing on and injuring an individual’s finger or thumb, the

evidence is likely to be admissible as OSI evidence. Nonetheless,

the evidence must be otherwise admissible – this presents a

significant hindrance to much of the evidence offered by Plaintiff,

which presents “glaring hearsay problems.” In re: Gen. Motors LLC

Ignition Switch Litig., 2016 WL 796846, at *4 (discussing evidence

consisting of forms relaying, among other things, customer

descriptions of incidents). Specifically, to the extent Plaintiff

seeks to introduce complaints maintained by BMW that were provided

during discovery and were drafted by customers or notes from

customer interviews BMW conducted after claims of injury, such

evidence is hearsay, and admissible only through certain

exceptions. See Fed. R. Evid. 802.

Plaintiff quotes extensively in his opposition from the

summaries of customer complaints, which he notes that he intends

to offer both for “causation” and “notice” purposes. (Pl. Opp.

at 7, 15-17.) Accordingly, the Court understands that Plaintiff

is intending to use the content of the emails to prove the truth

of the matter asserted – that the customers had injuries which

were caused by SCAD-equipped doors. This is inadmissible hearsay,

and Plaintiff offers no exception that might apply. There is no

evidence that the customers in question are unavailable to testify

as to their injuries, nor do any other hearsay exceptions apply.

Fed. R. Evid. 803, 804. This Court finds no compelling reason to

admit this statement under the residual hearsay exception, given

that Plaintiff failed to provide any evidence to “corroborat[e]

the statement.” Fed. R. Evid. 807. Furthermore, to the extent

Plaintiff seeks to offer the statements only for purposes of

showing that BMW was on notice as to a potential design defect,

the Court will admit records from Defendants’ files showing the

number of customer emails and the date ranges of the emails

relating to customers’ allegations that BMW’s SCAD system resulted

in injuries to the customers’ thumbs or fingers.

Accordingly, the Court finds that Exhibits I-381, I-41, I-42,

I-43, I-44, I-45, I-46, I-47, I-50, I-51, I-52, I-81 (a duplicate

of I-42), I-108, I-109, I-110, I-111, I-112, I-113, I-114, I-115,

and I-116, which consist primarily of internal emails or documents

summarizing or quoting customer complaints, are hearsay, but may

be presented in summary form as described above to show notice to

Defendants.

1 Plaintiff has also stipulated that Exhibit 38 “does not involve a soft close

automatic door” and as such, is not admissible as OSI evidence. (Pl. Opp. at

6.)

Exhibit I-39, which Plaintiff seeks to introduce to offer

BMW’s statement that “[t]he decision to close the door is fully

that of a human being . . . [i]f there is a hand or finger in the

way, the door should not be closed,” is excluded given the lack of

detail about the incident. Similarly, Exhibits I-40, I-48, I-49,

I-60, I-61, I-62, and I-64 (a duplicate of I-60) do not offer

sufficient detail about the incident in question to allow the Court

to determine whether they involved an incident similar to

Plaintiff’s. To the extent Plaintiff can offer additional evidence

to show that these exhibits do, in fact, involve customer injuries

allegedly caused by SCAD-equipped doors in BMW vehicles, these

exhibits may be presented in summary form to show notice as with

the other customer complaints discussed in the previous paragraph.

Exhibit I-54, which consists of “Internal Field Reports”

showing testing of vehicles which allegedly caused finger injuries

due to SCAD-equipped doors malfunctioning, may be admitted, with

some exceptions. First, any reports which do not specify a finger

injury (such as the first report, ECF page 2, only alleging “soft

close failure”) may not be admitted unless Plaintiff can offer

further support to show the reports are related to a similar

incident. Second, the “Nature of Complaint” field, which is

otherwise hearsay, may be admitted only to show notice.

The Court will next address Exhibits I-99 through I-107, which

consist of correspondence between Defendants and German

governmental authorities.2 Exhibit I-99, which is a certified

translation of a letter from the German Federal Motor Transport

Authority3 to Defendant BMW Group regarding finger injuries caused

by SCAD-equipped doors, and Exhibit I-101, BMW’s reply letter,

will not be excluded. As discussed previously, the thumb injuries

were alleged to be caused by SCAD-equipped BMW vehicle doors –

this is sufficiently similar to be allowed to show causation and

notice under OSI rules. Defendants argue that there is not

sufficient detail to show similarity in the letters, but the Court

finds that the language of the letters, referring to “[i]njuries

caused by door[s] with automatic closing function” is sufficient

to establish similarity. (Exhibit I-99 at 5.) Because the letters

are relevant and admissible to show causation, they are also

admissible for purposes of showing notice to Defendants. The Court

notes that the statements that BMW attributes to the customers

based on phone calls and other discussions of the incidents om

Exhibit I-101 may be introduced only for the purpose of showing

notice, as they are otherwise hearsay.

For principally the same reasons as Exhibits I-99 and I-101,

the Court will not exclude I-102, which is an email chain between

BMW and German authorities reporting incidents involved injuries

2 The Court notes that Defendants indicated in their reply brief that they would

be “amenable to withdrawing their objections to [Plaintiff’s Exhibits] 99-107

contingent upon the exclusion of the remainder of the ‘other incident’ exhibits

listed herein.” (Def’t Reply at 5.)

3 In the original German, the agency is called the Kraftfahrt-Bundesamt (“KBA”).

to fingers involving BMW vehicles with SCAD-equipped doors.

Likewise, Exhibits I-103 and I-104, which are further

correspondence between German authorities and BMW following I-99

and I-102, shall not be excluded, for principally the same reasons

as those two exhibits. Exhibits I-103 and I-104 principally deal

with questions from German authorities regarding the activation of

the SCAD functionality, and whether it could activate at gaps

larger than previously described by BMW. BMW’s reply is quite

probative, as it offers both context for the differing measurements

of where the SCAD functionality activates (diagonal dimension vs

door protrusion dimension) and a statement by BMW that “[d]epending

on how a finger is located in the door gap, it cannot be ruled out

that the SCA would be mistakenly activated depending on the

individual’s anatomy and a correspondingly severe crushing.” (Ex.

I-104 at 7.) Exhibits I-105, I-106, and I-1074 each contain

separate correspondence from BMW on the same measurement question

with references to injuries to fingers in SCAD-equipped doors, and

will not be excluded for the same reason.

In conclusion, though the Court does not adopt Defendants’

narrow test for what constitutes OSI evidence in the instant case,

it concurs with their argument that much of the OSI evidence

proffered by Plaintiff constitutes inadmissible hearsay if offered

4 The Court notes that this exhibit is incorrectly marked as “Exhibit III-21”

in Defendants’ moving papers.

to prove causation or provides insufficient information as to the

nature of the incident as to determine similarity. Thus, the Court

finds that exhibits I-38, I-39, I-40, I-41, I-42, I-43, I-44, I-

45, I-46, I-47, I-48, I-49, I-50, I-51, I-52, I-60, I-61, I-62, I-

64 (a duplicate of I-60), I-81 (a duplicate of I-42), I-108, I-

109, I-110, I-111, I-112, I-113, I-114, I-115, and I-116 are

inadmissible, except as provided in summary form to show notice.

Exhibits I-54 and I-99 through I-107 may generally be admitted

with some exceptions, as described further above.

B. Photographs of Plaintiff’s Right Thumb

Defendants seek to exclude six photographs of Plaintiff’s

right thumb taken immediately after the incident, Exhibits II-1

through II-6, arguing that they are “inflammatory and unduly

prejudicial while failing to be probative of any relevant matter

in controversy.” (Def’t Mem. at 15.) Plaintiff argues in

response that “[t]he proposed photographs were taken at the time

of the injury and are entirely relevant to the central issue in

the case.” (Pl. Opp. at 21.) Defendants argue in further support

that admission of the photos “would allow a visceral and emotional

response to graphic photographs to substitute for actual

scientific analysis and associated expert opinion testimony”

regarding the source of Plaintiff’s injury. (Def’t Reply at 5-

6.) The Court agrees with Plaintiff and finds that the photographs

may properly be admitted into evidence.

1. Legal Principles

“Still photographs, motion pictures, and videotapes, now

electronically stored digital information, once properly

authenticated, are admissible in evidence if helpful to the trier

of fact's understanding of a fact of consequence in the

litigation.” Michael H. Graham, 2 Handbook of Fed. Evid. § 401:7

(9th ed. 2023). “The decision whether to admit graphic or gruesome

pictorial representations of [a] plaintiff's injuries lies within

the discretion of the [district] Court.” Colon ex rel. Molina v.

BIC USA, Inc., 199 F. Supp. 2d 53, 98 (S.D.N.Y. 2001) (citing

Martin v. Maint. Co., 588 F.2d 355, 357 (2d Cir. 1978); Whelan v.

Penn Cent. Co., 503 F.2d 886, 891 (2d Cir. 1974)). Relevant

photographic evidence may, however, be excluded pursuant to Rule

403 if its prejudicial effect outweighs its probative value. See

Handbook of Fed. Evid. § 401.7.

“[T]he Second Circuit has made clear that the graphic or

disturbing nature of a photograph alone is not enough to render it

inadmissible.” United States v. Salim, 189 F. Supp. 2d 93, 98

(S.D.N.Y. 2002) (citing United States v. Velazquez, 246 F.3d 204,

210-11 (2d Cir. 2001)). Evidence that may upset or disturb a jury

may be admitted “if the probative value of that evidence is not

substantially outweighed by the evidence's negative qualities.”

Est. of Mauricio Jaquez v. Flores, No. 10-CV-2881 (KBF), 2016 WL

1084145, at *6 (S.D.N.Y. Mar. 17, 2016).

2. Application

There is no question that Plaintiff will be permitted to

introduce at least some of the graphic photographs in question.

The photos are unquestionably unsettling – they depict Plaintiff’s

injury, and, as noted by Defendants, “look[] straight into the

bleeding pulp of the wound.” (Def’t Mem at 16.) Some photos show

“blood dripping down from the wound and pooling into the lines of

Mr. Boateng’s palm.” (Id.) However, the photos have an important

role to play in the determination of how Plaintiff suffered his

injury. Specifically, the jury should be allowed to view the

photos to aid in their determination of whether Plaintiff’s injury

was caused by the automatic door closing feature, or by the force

of Plaintiff’s body pressing against the door, as suggested by

Defendants, and, if Defendants are found liable, the photos are

relevant to damages.

The Court finds the photos to be relevant to the issue of the

cause of Plaintiff’s injuries, and that it is, accordingly,

important for the factfinder to have access to the photos to

determine whether the injury is more consistent with Plaintiff’s

or Defendants’ theory of injury. Though the photos may be

disturbing, in the absence of an alternative method to assist the

jury in determining the source and extent of Plaintiff’s injury,

the Court finds they may be admitted. See Est. of Mauricio Jaquez

v. Flores, 2016 WL 1084145, at *7 (admitting photograph depicting

an external bullet wound as probative of material issues relating

to the shot and wound at issue). Exhibits II-1 through II-6 are

therefore admissible.

C. Evidence Not Produced in Discovery

Defendants seek to exclude four additional photographs of

Plaintiff’s thumb taken just over a month after the injury, as

well as recent photographs comparing Plaintiff’s injured thumb

with his other, non-injured thumb, on the basis that they were not

produced in discovery. (Def’t Mem. at 17.) Defendants also seek

to exclude for the same reason Plaintiff’s 2015, 2018, 2019, 2020,

2021, and 2022 tax returns, and a 2012 contract showing Plaintiff’s

hourly rate of pay. (Id. at 17-18.) Plaintiff argues that the

evidence is relevant, and that the prejudice of exclusion would

outweigh the prejudice of nondisclosure during discovery. (Pl.

Opp. at 25-27.) Defendants argue in further support that their

position is supported by the Federal Rules of Civil Procedure and

the Court’s discovery scheduling orders. (Def’t Reply at 6-7.)

The Court finds that Plaintiff’s failure to provide the tax returns

and photos during discovery was substantially justified or

harmless, and that Defendants have failed to demonstrate that

exclusion is a proper remedy to Plaintiff’s failure to produce the

exhibits in question.

1. Legal Principles

Rule 37(c)(1) describes the available remedies when a party

fails to provide information pursuant to Rule 26(a) or (e):

If a party fails to provide information . . . as required

by Rule 26(a) or (e), the party is not allowed to use

that information . . . to supply evidence . . . at a

trial, unless the failure was substantially justified or

is harmless. In addition to or instead of this sanction,

the court, on motion and after giving an opportunity to

be heard: . . . may impose other appropriate sanctions,

including any of the orders listed in Rule

37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(1)(C). Rule 26(a) governs, amongst other

required disclosures, the parties’ mandatory initial disclosures,

including documents bearing on computation of damages and

documents that may be used to support claims. Fed. R. Civ. P.

26(a). Rule 26(e) provides, in relevant part:

A party who has made a disclosure under Rule 26(a) -- or

who has responded to an interrogatory, request for

production, or request for admission -- must supplement

or correct its disclosure or response: . . . in a timely

manner if the party learns that in some material respect

the disclosure or response is incomplete or incorrect,

and if the additional or corrective information has not

otherwise been made known to the other parties during

the discovery process or in writing[.]

Fed. R. Civ. P. 26(e)(1). “The moving party bears the burden of

showing that its adversary failed timely to disclose information

required by Rule 26.” In re Sept. 11th Liab. Ins. Coverage Cases,

243 F.R.D. 114, 125 (S.D.N.Y. 2007). “To meet this burden, the

moving party must establish ‘(1) that the party having control

over the evidence had an obligation to timely produce it; (2) that

the party that failed to timely produce the evidence had a culpable

state of mind; and (3) that the missing evidence is relevant to

the party's claim or defense such that a reasonable trier of fact

could find that it would support that claim or defense.’” Id.

(quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306

F.3d 99, 107 (2d Cir. 2002)).

“The imposition of sanctions under Rule 37(c)(1) is a matter

within the trial court's discretion.” Johnson Elec. N. Am. Inc.

v. Mabuchi Motor Am. Corp., 77 F. Supp. 2d 446, 458 (S.D.N.Y. 1999)

(citation omitted). “[R]efusing to admit evidence that was not

disclosed in discovery is a drastic remedy and will apply only in

situations where the failure to disclose represents a flagrant bad

faith and callous disregard of the rules.” Id. (citation omitted).

“Despite the mandatory language of Rule 37(c)(1), the Second

Circuit has held that preclusion is a discretionary remedy, even

if ‘the trial court finds that there is no substantial

justification and the failure to disclose is not harmless.’” Nosal

v. Granite Park LLC, 269 F.R.D. 284, 289 (S.D.N.Y. 2010) (quoting

Design Strategy, Inc. v. Davis, 469 F.3d 584, 297 (2d Cir. 2006)).

2. Application

Defendants have failed to carry their burden of establishing

that preclusion is warranted under Rule 37(c). As an initial

matter, the Court finds that Defendants are correct that the

exhibits in question should have been produced. Defendants

requested “all photographs . . . depicting the alleged occurrence

[or] showing the alleged damages sustained by Plaintiff.” (Def’t

Ex. III-A at 8.) The photographs of Plaintiff’s thumb would

clearly fit into the document request as it is written, and the

Court does not find the language of the request confusing or

otherwise written in a way that would excuse Plaintiff’s

compliance. As to the tax records, Defendants requested “all

documents supporting any claimed expenses, consequential or

incidental damages or losses.” (Id. at 9.) Although the tax

returns were not explicitly requested by Defendants, the Court

finds the Defendants requested and Plaintiff provided

authorizations for Plaintiff’s tax returns for five years prior to

the incident up to any including the present time. Plaintiff

states that he provided authorizations for his tax returns on

multiple occasions. (Pl. Opp. at 26-27.) That being said,

Plaintiff’s failure to produce the actual tax returns during

discovery does not end the Court’s inquiry.

In determining whether to order the “drastic remedy” of

refusing to admit evidence is appropriate, the Court looks to

whether Plaintiff’s failure to disclose “represents a flagrant bad

faith and callous disregard of the rules.” Johnson Elec. N. Am.

Inc., 77 F. Supp. 2d at 458. The Court does not find any such bad

faith or callous disregard of the rules to be present. As to the

tax returns, Plaintiff felt that he provided the appropriate IRS

authorization for Defendant to acquire them, and there was no need

to produce the tax returns separately. (See Pl. Opp. at 26-27.)

Regarding the photographs, Plaintiff asserts that the photos are

relevant to showing the condition of Plaintiff’s thumb months and

one year after the incident, but offers no excuse for the failure

to produce them beyond stating that they were “produced immediately

after they were found.” (Pl. Opp. at 25.) The Court does not

wish to excuse Plaintiff’s failure to meet his discovery

obligations, but it is far from clear that the failures were made

with the requisite “culpable state of mind.” In re Sept. 11th

Liab. Ins. Coverage Cases, 243 F.R.D. at 125. As a result, the

Court does not find preclusion to be an appropriate remedy for

Plaintiff’s failure to produce the documents during discovery.

D. News Media Exhibits

Defendants seek to exclude two media exhibits regarding

Plaintiff’s injuries – a New York Post article entitled “My $70K

BMW cut off my thumb” and an ABC News video entitled “Long Island

man sues BMW after car's self-closing door severs thumb”. (Def’t

Mem. at 18.) Defendants argue that the media evidence constitutes

inadmissible hearsay, would be cumulative and redundant to

Plaintiff’s own testimony, and would be overly prejudicial. (Id.

at 19.) Plaintiff agreed in his opposition to withdraw both

exhibits. (Pl. Opp. at 28.) Defendants request an order

precluding the media evidence in their reply. (Def’t Reply at 7.)

The Court does not find it necessary to enter an order

excluding the evidence, given Plaintiff’s voluntary decision to

withdraw the exhibits.

E. Evidence of Other Recalls

Defendants seek to exclude two exhibits on the basis that

they “concern a recall of a different vehicle model for an

unrelated issue.” (Def’t Mem. at 19.) Plaintiff argues in

response that the evidence of the recalls is relevant in

considering the design defect claims. (Pl. Opp. at 29-32.)

Defendants argue in further support that Plaintiff’s position is

overly broad as it would mean that “any recall relating to the

soft close mechanism should be considered by the jury in deciding

whether the design of that feature is defective.” (Def’t Reply at

7.) The Court agrees with Defendants and finds that the exhibits

in question are not relevant, and as such, are not admissible.

“[E]vidence is ‘relevant’ if it has ‘any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.’” United States v. Abu-Jihaad, 630 F.3d

102, 132 (2d Cir. 2010) (quoting Fed. R. Evid. 401). Here, the

Court finds that Plaintiff has failed to show that the evidence

surrounding the door recalls is relevant to the instant case.

Specifically, the evidence of recalls that Plaintiff seeks to

introduce relates to instances where “a door failed to remain

closed” because the “door release cam permanently opens the release

lever [and the] door does not latch.” (Ex. V-55 at 2, 4.)

Plaintiff has not alleged that such a defect was present on his

vehicle, or that such a defect contributed to his injury.

Defendants correctly point out that “[t]here is no claim in this

litigation that Mr. Boateng was injured due to his driver’s door

opening.” (Def’t Mem. at 22.) As such, the Court does not find

the evidence to be relevant or admissible.

To the extent Plaintiff seeks to introduce the evidence in

support of a broader contention that BMW’s vehicles contained

defects, thus making it more likely that his own SCAD-equipped

door was defective and caused his injury, the Court finds such

evidence would be more prejudicial than probative. Any use of

evidence in this manner would “confuse the jury as to the true

issue” in the case, as pointed out by Defendants. (Def’t Mem. at

22.) Finally, the Court reserves ruling on any attorney-client

privilege asserted by Defendants regarding the recalls because the

evidence will be precluded because it is irrelevant.

F. Plaintiff’s Demonstrative Videos

Defendants seek to exclude four demonstrative videos of the

Subject Vehicle created by Plaintiff. (Def’t Mem. at 22-23.)

Defendants argue that the videos constitute non-expert lay witness

testimony which is cumulative of Plaintiff’s expert evidence and

includes audio commentary which is hearsay. (Id. at 23-24.)

Plaintiff argues that the evidence is a permissible way to “show

the jury exactly how the accident happened, rather than Mr. Boateng

doing so in court holding an imaginary BMW X5 vehicle door.” (Pl.

Opp. at 33.) The Court finds that, to the extent Plaintiff’s

videos attempt to show “testing” of the SCAD-equipped door, they

are precluded as lay-expert testimony, but that the videos of

Plaintiff showing how he held the door, showing how the SCAD

engaged, and showing the scratch on the door may be admitted.

Pursuant to Fed. R. Evid. 702, “[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

the proponent demonstrates to the court that it is more likely

than not that: (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’s opinion

reflects a reliable application of the principles and methods to

the facts of the case.” Here, it is clear that Exhibits VI-124

and VI-125 go beyond the bounds of acceptable lay witness testimony

and veer into terrain reserved for expert witnesses. This is

precisely because Plaintiff plans to introduce expert testimony

from Dr. Pugh showing his own testing of the Subject Vehicle. In

this case, Plaintiff cannot have it both ways – he cannot offer

both expert and non-expert testing of the same type on the same

door. For this reason, the Court finds that Exhibits VI-124 and

VI-125 are inadmissible.

The Court does not find that Exhibits VI-126 and VI-127

constitute improper lay-expert testimony, however. These videos

show Plaintiff “exiting the [S]ubject [V]ehicle and holding the

driver’s side door in the same manner as he did when he was injured

on July 6, 2016” along with the “noticeable scratch mark indented”

in the Subject Vehicle after the incident. (Pl. Opp. at 33.) As

previously discussed, photographs and videotapes are “admissible

in evidence if helpful to the trier of fact's understanding of a

fact of consequence in the litigation.” Michael H. Graham, 2

Handbook of Fed. Evid. § 401:7 (9th ed. 2023). The two videos in

question concern facts relevant to the central issue in the case

– how Plaintiff was positioned in relation to the door when it

closed, and the force with which the door closed on his thumb- and

as such, constitute proper evidence that provides relevant

information. The Court adopts Plaintiff’s suggestion that the

audio be redacted from the exhibits prior to trial, so as to avoid

any potential hearsay problems, however Plaintiff may authenticate

the videos to explain the context. Accordingly, Exhibits VI-126

and VI-127 may be introduced with the audio removed, and Exhibits

VI-124 and VI-125 are deemed inadmissible.

II. Plaintiff’s Motions

Plaintiff has filed two separate motions in limine seeking to

exclude: (i) any suggestions at trial that Mr. Boateng’s injuries

were caused by his closing the door on his own thumb alone rather

than through the activation of the SCAD functionality; and (ii)

evidence that BMW is in compliance with Federal Motor Vehicle

Safety Standard (“FMVSS”) No. 206, regarding a door’s primary door

latch system. The Court will consider each category of exclusions

in turn.

A. Evidence of External Forces

Plaintiff seeks to “exclude any inferences at trial by the

Defendants that Godwin Boateng’s injuries were caused as the result

of closing the door on his own thumb rather than through the

activation of Soft-Close Automatic Doors (‘SCAD’).” (ECF No. 150,

Plaintiff’s Memorandum of Law in Support of Motion in Limine #1

(“Pl Mem. No. 1”), at 5.) Defendants opposition asserts that the

motion seeks “seeks to eliminate one of Defendants’ primary

defenses and their experts’ theory of how the accident probably

occurred.” (ECF No. 151, Defendants’ Response in Opposition

(“Def’t Opp.”), at 2.) Plaintiff argues in further support that

Defendants’ theory “would be confusing and wholly irrelevant” to

the jury. (ECF No. 152, Plaintiff’s Reply in Further Support of

Motion in Limine No. 1 (“Pl. Reply No. 1”), at 3.) The Court finds

Plaintiff’s request is overly broad and would unnecessarily

intrude on the factfinder’s role in the instant case to weigh and

analyze the parties’ competing theories of causation of

Plaintiff’s injury. As such, Plaintiff’s motion is denied.

1. Legal Principles

“Evidence is relevant if ‘it has any tendency to make a fact

more or less probable than it would be without the evidence’ and

if ‘the fact is of consequence in determining the action.’” United

States v. Monsalvatge, 850 F.3d 483, 494 (2d Cir. 2017) (quoting

Fed. R. Evid. 401). “Evidence need not be conclusive in order to

be relevant.” Id. (quoting United States v. Schultz, 333 F.3d

393, 416 (2d Cir. 2003)). “A district court ‘may exclude relevant

evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.’” Id. (quoting Fed. R.

Evid. 403). In reviewing a district court’s Rule 403 rulings, the

Second Circuit “generally maximize[s] the evidence's probative

value and minimize[s] its prejudicial value.” Id. (internal

quotation marks and citation omitted).

Separately, under Fed. R. Evid. 702, expert testimony is

admissible where: “(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.” Id. “To determine whether a proposed expert's

testimony passes muster under Rule 702, this Court must inquire

into: (1) the qualifications of the proposed expert; (2) whether

each proposed opinion is based on reliable data and reliable

methodology; and (3) whether the proposed testimony would be

helpful to the trier of fact.” S.E.C. v. Tourre, 950 F. Supp. 2d

666, 674 (S.D.N.Y. 2013) (citing Nimely v. City of New York, 414

F.3d 381, 396–97 (2d Cir. 2005)).

Under Fed. R. Evid. 703, “[a]n expert may base an opinion on

facts or data in the case that the expert has been made aware of

or personally observed.” Id. The Second Circuit has held that

“expert witnesses can testify to opinions based on hearsay or other

inadmissible evidence if experts in the field reasonably rely on

such evidence in forming their opinions.” United States v.

Dukagjini, 326 F.3d 45, 57 (2d Cir. 2003) (internal quotation marks

and citation omitted); see also Fed. R. Evid. 703 (“If experts in

the particular field would reasonably rely on those kinds of facts

or data in forming an opinion on the subject, they need not be

admissible for the opinion to be admitted.”).

2. Application

Plaintiff argues that evidence of injuries from non-SCAD

equipped doors is irrelevant, misleading, and “will cause a great

deal of confusion for the jury at trial.” (Pl. Mem. No. 1 at 5.)

Furthermore, Plaintiff argues that certain reports upon which

Defendants’ experts may rely “lack[] a sufficient scientific

basis” and should be precluded. (Id.) The Court is not persuaded

by Plaintiff’s arguments, which appear to attempt to foreclose

Defendants from offering an alternative theory for the injury.

As a starting point, the Court finds that evidence offered by

Defendants which would suggest Plaintiff’s injury was caused by

the force with which his own body closed the door, as opposed to

the SCAD mechanism, is relevant to the instant case. Such evidence

would be relevant to whether a product defect caused Plaintiff’s

injury, a central issue in the case. Thus, just as this Court

found it appropriate to allow evidence of other similar incidents

involving SCAD-equipped doors, it would be inappropriate at this

juncture to foreclose Defendants from offering evidence suggesting

Plaintiff’s incident would be possible on a non-SCAD-equipped

door. The Court is not persuaded that such evidence would confuse

a jury, which could understand the competing theories of the

accident being advanced by the two sides. Ultimately, the Court

agrees with Defendants that even if “Plaintiff's case may be harmed

by reference to the evidence at issue . . . such harm is not the

‘unfair’ prejudice that Federal Rule of Evidence 403 is intended

to protect against.” Spencer v. Int'l Shoppes, Inc., No. 06-CV-

2637 (AKT), 2013 WL 685453, at *3 (E.D.N.Y. Feb. 25, 2013).

Therefore, the Court declines to provide the broad exclusion sought

by Plaintiff.

The Court is also not persuaded by Plaintiff’s arguments that

certain portions of Defendants’ expert witness testimony should be

excluded. Plaintiff argues that NHTSA data regarding reports of

car door injuries should be excluded from expert testimony as it

provides “insufficient and unreliable evidence of causation.”

(Pl. Mem. No. 1 at 8.) However, the case law cited by Plaintiff

primarily deals with causation in a medical or epidemiological

context (specifically medical “case reports”), far removed from

the present situation. Should Defendants’ expert opine that SCAD-

equipped doors have contributed to a gradual decrease in door-

related injuries over time, Plaintiff is free to offer an

alternative theory, or question the reliability of the data, as he

did during prior depositions. (Id. at 6.) Ultimately, just as

Plaintiff will be allowed to advance his own theory of how the

injury was caused, including through video demonstrations and

expert testimony, Defendants will be allowed to offer their own

theory along with admissible evidence in support.5

5 The Court notes that this issue was discussed in the earlier ruling declining

to grant summary judgment for Defendants on the design defect claim, and the

Court concluded that “[t]he 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.” Boateng v. Bayerische Motoren Werke

Aktiengesellschaft, No. 17-CV-209 (KAM) (SIL), 2022 WL 4357555, at *15 (E.D.N.Y.

Sept. 20, 2022).

B. Evidence of Compliance with FMVSS No. 206

Plaintiff seeks in his second motion in limine to exclude

“documents associated with Federal Motor Vehicle Safety Standard

No. 206 (‘FMVSS No. 206’)” on the grounds that they are irrelevant,

as “[t]he purpose of Standard 206 is to minimize the likelihood of

occupants being thrown from a vehicle as a result of an impact.”

(ECF No. 153, Plaintiff’s Memorandum of Law in Support of Motion

in Limine #2 (“Pl Mem. No. 2”), at 4-5.) Defendants argue in

response that “[i]n a design case, such standards are typically

admissible to show compliance of the design to the industry and to

the state of the art, both of which are factors that juries may

consider.” (Def’t Opp. at 7.) Plaintiff argues in further support

that “SCAD is never discussed in FMVSS No. 206” and that although

the standard applies to the Subject Vehicle, that is “equally true

for the other 153 FMVSS standards.” (ECF No. 155, Plaintiff’s

Reply in Further Support of Motion in Limine No. 2 (“Pl. Reply No.

2”), at 3.) The Court agrees with Plaintiff that evidence of

compliance with FMVSS No. 206 does not appear to be relevant in

determining any fact material to a claim or defense in this action,

and as such, is not admissible. However, the Court may modify

this ruling if Defendants’ compliance with Federal Motor Vehicle

Safety Standards is put into issue by Plaintiff.

FMVSS No. 206, codified at 49 C.F.R. § 571.206, “specifies

requirements for vehicle door locks and door retention components,

including latches, hinges, and other supporting means, to minimize

the likelihood of occupants being ejected from a vehicle as a

result of impact.” Id. As noted by Plaintiff, no references to

“automatic” door closing systems are included in the standard.

Instead, the standard is primarily concerned with the load and

force that a door’s primary and auxiliary door latch systems can

sustain prior to separating. Id. As explained in the “Scope and

Purpose” section of the standard noted above, this is to minimize

the chance of vehicle occupants being “ejected from a vehicle as

a result of impact.” The Court finds no special relevance to BMW’s

asserted compliance with this standard for the instant action,

which concerns an injury resulting from the closure of a SCAD-

equipped door. For the same reason that the Court declined to

allow Plaintiff to introduce evidence of unrelated recalls, the

Court similarly declines to allow Defendants to introduce evidence

of compliance with unrelated standards.

The Court does not find applicable the case law Defendants

cites suggesting that “compliance with regulatory requirements

under 49 CFR § 571 [is] relevant.” See, e.g., Contini v. Hyundai

Motor Co., 840 F. Supp. 22, 23 (S.D.N.Y. 1993). In Contini, a

seat belt failed to restrain an occupant of the front seat,

directly implicating the standard for seat belt assemblies which

“were required to be designed to be capable of restraining a

passenger.” Id. at 24. Similarly, Murphy v. Nissan Motor Corp.

in U.S.A., 650 F. Supp. 922 (E.D.N.Y. 1987), dealt with a failure

of a seatbelt system while a passenger’s seat was fully reclined,

directly implicating “safety standard relating to passenger

restraints.” Id. at 924. The Court finds the cases to be

distinguishable from the instant case, in which no standard appears

to be directly related to the SCAD defect alleged by Plaintiff.

This ruling may be revisited if Plaintiff places into issue

Defendants’ compliance with the specific statutory or regulatory

requirements at issue in Plaintiff’s motion. See, e.g., United

States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) (discussing the

doctrine of “curative admissibility”). The Court understands

Plaintiff’s position to be that “no federal standard [is]

applicable to an automatic closing door,” and bases this ruling on

that position, in part. Thus, although evidence of compliance

with FMVSS No. 206 is deemed irrelevant and inadmissible, the

Court’s ruling may subsequently change based on the arguments

advanced by Plaintiff at trial.

CONCLUSION

For the reasons stated above, the Court finds that:

•

Defendants’ motion to exclude evidence of “other dissimilar

incidents” is GRANTED in part and DENIED in part. (See supra

Discussion Section I.A.2.) Exhibits I-38, I-39, I-40, I-41,

I-42, I-43, I-44, I-45, I-46, I-47, I-48, I-49, I-50, I-51,

I-52, I-60, I-61, I-62, I-64 (a duplicate of I-60), I-81 (a

duplicate of I-42), I-108, I-109, I-110, I-111, I-112, I-113,

I-114, I-115, and I-116 are inadmissible, except in summary

form, as discussed supra. Exhibits I-54 and I-99 through I-

107 may be admitted subject to the limitations described

further supra.

•

Defendants’ motion to exclude photographs of Plaintiff’s

injury is DENIED. (See supra Discussion Section I.B.2.)

Exhibits II-1 through II-6 are admissible.

•

Defendants’ motion to exclude evidence not produced in

discovery is DENIED. (See supra Discussion Section I.C.2.)

Exhibits III-7 through III-11 and III-21 through III-29 are

admissible.

•

The Court DENIES as moot Defendants’ motion to exclude news

media coverage in light of Plaintiff’s withdrawal of the

exhibits. (See supra Discussion Section I.D.)

•

Defendants’ motion to exclude evidence of unrelated recalls

is GRANTED. (See supra Discussion Section I.E.) Exhibits V-

55 and V-66 are deemed inadmissible.

•

Defendant’s motion to exclude Plaintiff’s demonstrative

videos of the Subject Vehicle is GRANTED in part and DENIED

in part. (See supra Discussion Section I.F.) Exhibits VI-

124 and VI-125 are deemed inadmissible. Exhibits VI-126 and

VI-127 may be admitted in modified form with the audio

removed, however, Plaintiff may lay a foundation for the

exhibits.

e Plaintiff’s first motion in limine to exclude evidence

suggesting external forces caused Plaintiff’s injury is

DENIED. (See supra Discussion Section II.A.2.)

e Plaintiff’s second motion in limine to exclude evidence of

Defendants’ compliance with FMVSS No. 206 is GRANTED. (See

supra Discussion Section II.B.)

SO ORDERED

Dated: April 8, 2024

Brooklyn, New York

oye et bee

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

38