1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GREAT NORTHERN INSURANCE : 

COMPANY, et al., : 

 : 

 Plaintiffs, : Case No. 2:11-CV-1153 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

BMW OF NORTH AMERICA LLC, : Magistrate Judge Kemp 

et al., : 

 Defendants. : 

OPINION & ORDER 

This matter is before the Court on Defendants’, BMW of North America LLC (“BMW 

NA”) and Bayerische Motoren Werke AG (“BMW AG”) (collectively “Defendants”), Motion 

for Summary Judgment as to Plaintiffs’, Great Northern Insurance Company and Pacific 

Indemnity Insurance (collectively “Plaintiffs”), claims for: (1) breach of implied warranty 

against both Defendants (Count IV); (2) product liability under the Ohio Product Liability Act 

(“OPLA”) against manufacturer, BMW AG (Count III); and, (3) product liability under OPLA 

against supplier, BMW NA (Count II).1

 (Doc. 78). Defendants incorporate their Motion in 

Limine to Exclude the Testimony of Richard A. Clarke into this Motion. (Doc. 77). Finally, 

Plaintiffs incorporate their Motion to Strike Affidavits of Thomas Slaba and Richard Keefer 

submitted by Defendants in support of their Motion for Summary Judgment. (Doc. 83). 

 

 

1

 Plaintiffs’ First Claim in their Complaint is a negligence claim against only Defendant 

Brentlinger Enterprises, and not a claim against Defendants bringing this Motion for Summary 

Judgment. 

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I. BACKGROUND 

A. FACTUAL BACKGROUND 

1. Vehicle use and fire 

On May 30, 2007, Jean Patrick leased a new BMW 328xi (the “vehicle”). BMW AG 

designed and manufactured the vehicle. BMW NA played no role in the design or manufacture 

of the vehicle, but merely distributed the vehicle. 

Ms. Patrick drove the vehicle for three years without any problems. She maintained the 

vehicle in accordance with BMW standards, generally kept the vehicle in the garage, never 

stored the vehicle in a place where substantial debris could accumulate, and drove the vehicle 

regularly. On March 16, 2010, Ms. Patrick parked the vehicle in the garage attached to her home, 

which is in a wooded area, and noticed smoke emanating from the vehicle’s hood. A few minutes 

later, a fire that started in the vehicle spread to the Patrick’s residence and belongings. As a result 

of the fire, the Patricks lost their car, their home was uninhabitable, and they incurred extra 

expenses associated with moving and living in an alternative rental property while repairs were 

being made to their home. Plaintiffs reimbursed the Patricks under their automobile and 

homeowners’ insurance policy for the damage and costs arising from the vehicle fire 

($1,329,999.90 for the residence damage and associated costs of repair and lodging, and 

$30,791.39 for the BMW). Plaintiffs then filed this subrogation lawsuit against Defendants. 

All of the experts and the local investigating fire officials in this case have concluded that 

the fire originated within the BMW. Further, all experts agree that the fire was caused by an 

accumulation of leaves and other organic material in an area of approximately one to two inches 

between the stiffener plate and the heated components of the exhaust system. The stiffener plate 

is a solid piece of aluminum connected to the underside of the vehicle attached with six bolts and 

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located in the center of the front axle. Its purpose is to provide stability and strength on the allwheel drive BMW E90 vehicles, and protect the underside of the engine from damage. The 

stiffener plate is installed only on the four-wheel drive BMW E90 vehicles, but is not present on 

the two-wheel drive E90 vehicles. What parties’ experts contest is how the debris accumulated in 

the location in the engine compartment where it ignited, and whether there is any design defect 

in the vehicle. 

2. Plaintiffs’ theory 

On March 17, 2010, Plaintiffs retained Kevin Keaton of S-E-A Ltd. (“SEA”) to 

investigate the origins and causes of the fire. The SEA expert concluded that the fire originated 

in the engine compartment of the vehicle; that it was a result of the accumulation of combustible 

material (foliage) on an area of a heat shield or cross member positioned under the exhaust 

piping on the right side of the engine compartment; that the temperature measurements on an 

exemplar 2007 BMW 328xi exhaust system resulted in temperatures of about 600°F, which is 

greater than the minimum ignition temperature of 554°F mentioned in the National Institute of 

Standards and Technology; the competent ignition scenario was a hot surface ignition of the 

foliage by the vehicle’s exhaust components; the vehicle was operated daily and positioned 

within the garage when not in use; the foliage was examined and found to contain no rodent 

activity; and all other competent ignition sources were eliminated as being causal to the fire. 

(Doc. 81-1). 

Keaton’s report states that upon examining an exemplar vehicle, he concluded that “the 

heat shield positioned in this area was found to have flat areas...which would allow for debris to 

accumulate from openings in the area of the adjacent wheel well....” Id. at 26. At his deposition, 

Keaton states that “debris entered the vehicle through the openings in the vehicle—through the 

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bottom openings of the vehicle and possibly through the wheel well openings in the vehicle.” 

(Keaton Deposition, Doc. 76 at 80-81). 

Plaintiffs also offer expert testimony of Richard Clarke, a consulting engineer who 

provides technical expertise on engineering investigations of failed automobile components. In 

his September 26, 2013 report, Clarke offered the following opinions based on his review of both 

the vehicle and an exemplar vehicle of the same make and model, the file information, 

photographs of the vehicles at the loss site, and the analysis of the fire patterns: 

 The fire was due to the ingress of leafs and pine needles being trapped in the area of the 

catalytic converters and the exhaust down pipes. 

 This entrapment of combustible materials was due to the placement and design of the 

Lower Stiffening Plate. 

 Material of this nature which is dry becomes very combustible when in close proximity to 

the catalytic converter and exhaust down pipes which is at normal operating temperature 

after the car has been driven for ten to fifteen minutes. Once combustion has started, 

combustible material in the immediate area would then be consumed. 

 The lower stiffening plate is defective as it allows entrapment of combustible materials to 

build up in close proximity to the catalytic converter and exhaust down pipes. This defect 

was the cause of the fire. 

 A safer alternative designed Lower Stiffening Frame with openings for egress and ingress 

and with edges that would avoid the accumulation of any combustibles and would have 

prevented such an entrapment of the combustible materials, such as the prototype Clarke 

designed and manufactured. 

 The benefits of his alternative design outweigh fire risks inherent in the design, especially 

since a reasonable alternative design is feasible. 

(Report of Richard Clarke, Doc.77-7). 

In terms of his theory of how debris entered the area where the fire began, Clarke 

testified in his deposition that debris could have entered via a direct and unobstructed air path 

through the NACA duct, which is located less than a foot from the stiffener plate and exhaust 

system. According to Clarke, the purpose of the NACA duct is to introduce outside air to cool 

the engine and exhaust system. Mr. Clarke also testified that debris that naturally accumulates on 

the hood could directly drop down along side of the engine and onto the stiffener plate. (Doc. 81-

3). Mr. Clarke further opined that his review of other comparable vehicles, including the newer 

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F30 all-wheel drive BMW, showed that the design of body protection systems similar to the 

vehicle’s stiffener plate had holes in them, and therefore were much more conducive to 

permitting any debris that was drawn onto the stiffener plate to “self-clean.” 

3. Defendants’ Theory 

Defendants state that it was impossible for debris to collect on the stiffener plate in the 

manner Clarke opines because the hood of the vehicle is completely sealed. Instead, Defendants 

argue that debris collected on the stiffener plate area due to a fox squirrel nesting in the vehicle 

around the time the fire occurred. This theory originates from the final inspection of the vehicle 

on November 1, 2013. During the inspection, SEA personnel lifted the vehicle with a forklift to 

allow under-vehicle inspection. The forklift fractured an under-vehicle body cover that had not 

been removed previously. When the cover fractured, the remains of a rodent fell out, which 

consisted of some hair and bones. 

Dr. Robert Gates, Defendants’ expert, examined the material collected at a joint May 5, 

2010 inspection and compared it with the rodent remains discovered at the November 1, 2013 

inspection. Dr. Gates discovered a bi-colored, mammal hair in the debris collected at the May 5, 

2010 inspection. He concluded that the hair and bones collected at the November 1, 2013 

inspection appeared to be the partial remains of a fox squirrel and that the hair was bi-colored, 

like the hair found in the materials from the May 5, 2010 inspection. He concluded that SEA’s 

conclusion that rodent activity was not a factor in the case of debris accumulation was incorrect, 

and that the materials ignited by the exhaust components of the vehicle were likely deposited 

adjacent to the exhaust system by the fox squirrel whose remains were found on November 1, 

2013. (Report of Dr. Robert Gates, Doc. 81-4). 

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4. Plaintiff’s Rebuttal 

In rebuttal of Defendants’ rodent theory, Plaintiffs offer the report of Dr. Michael Steele, 

an expert on the ecology and behavior of tree squirrels, to maintain their position that the 

evidence examined by SEA and the BMW experts in 2010 did not show any nesting created by 

rodents. (Report of Michael Steele, Doc. 81-5). Steele’s report concludes that it is more likely 

than not that the fox squirrel whose remains were found on November 1, 2013 inhabited the 

vehicle after it was stored, outside, at the SEA facility. The report states specifically that: it was 

unlikely for a squirrel to build a nest in close proximity to a heated exhaust system capable of 

generating temperatures in the 600°F to 700°F range; the confined area above the stiffener plate 

where the fire began is inadequate space for a nesting fox squirrel; the debris found above the 

stiffener plate contained material that is not typical of the nest of a fox squirrel; it is highly 

unlikely that a fox squirrel would enter a garage and colonize a vehicle that is in regular use 

(squirrels nest at much higher points, and in more stable structures); it is unlikely that a fox 

squirrel would remain in a vehicle after the fire began; it is more likely that a fox squirrel would 

inhabit a vehicle stored outside that is not operational; and, it is more likely than not that the 

presence of maggots found in the partial remains are indicative of a squirrel which had not been 

dead since March, 2010. 

5. Richard Clarke’s Qualifications 

Clarke has a four-year Automotive Engineering Degree from Yarmouth Technical 

College in London, England. He is not a licensed engineer. Clark states that he is failure mode 

and maintenance expert in the automotive field. (Clarke Deposition, Doc. 70 at 8). As a failure 

more analyst he investigates fire origin and causation, assesses foreseeability of component 

failure, and recommends potential fixes for identified problems. Id. 

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Clarke does not hold himself out as a design engineer. Id. at 8-9, 73. He has never 

designed under engine covers like the under engine cover that is on the BMW 328xi. Id. He 

states in his deposition and his affidavit, however, that he has been involved in the design of 

support plates and other frame materials for General Motors and the Lotus Racing team. (Id. at 

10, Doc. 81-6 at ¶ 8). 

In terms of his work history, from 1978-1982, Clark worked as an apprentice motor 

vehicle technician for BMW. From 1982-1985, he worked as a vehicle technician for Mercedes 

Benz and Lotus. Id. at 16-20. From 1985-1987 Clarke worked as a development engineer for 

Lotus, where he worked on a team developing hydraulic active suspension components for 

various manufacturers. Id. at 21-28. Specifically, he helped design support brackets used to 

install the suspension system on vehicles. Id. at 10, 26-7. 

From 1987-1996 Clarke worked as a National Field Service Engineer for Lotus in the 

United States. Id. at 29. There, he conducted tested vehicles to determine whether they met 

vehicle standards, proposed design changes, but did not actually design components. Id. at 29-49. 

From 1996 to the present Clarke has been engaged as a Consulting Engineer providing technical 

expertise on engineering investigations of failed and accident-related components. He has been 

involved in over 100 vehicle fire investigations. Clarke worked extensively with the National 

Highway Traffic Safety Administration in order to identify a defect in a Ford Motor Company 

component that caused fires; he played a pivotal role in proposing two alternative designs, one of 

which was used by Ford. 

He has not received any formal education with regard to vehicle aerodynamics. Id. at 49. 

Clarke states that in the course of his career he has learned about aerodynamic issues with 

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respect to airflow and vehicles, particularly when working for the Formula 1 Race Team. (Id. at 

47-9, Doc. 81-6 at ¶11). 

B. Procedural Background 

 Plaintiffs filed their Complaint on December 28, 2011. On May 30, 2014 Defendants 

filed their Motion in Limine to Exclude the Testimony of Richard Clarke, (Doc. 77), and their 

Motion for Summary Judgment on all claims against the BMW Defendants. (Doc. 78). On July 

3, 2014, Plaintiffs filed their motion to Strike Affidavits of Thomas Slaba and Richard Keefer 

attached to Defendants’ Motion for Summary Judgment. (Doc. 83). All three motions have been 

fully briefed and, therefore, are ripe for review. 

III. ANALYSIS 

A. Motion to Exclude Testimony of Richard Clarke 

This Court first addresses Defendants’ motion to exclude the expert testimony of Richard 

Clarke. (Doc. 77). Rule 702 provides: 

If scientific, technical, or other specialized knowledge will assist 

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

issue, a witness qualified as an expert by knowledge, skill, 

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

of an opinion or otherwise, if (1) the testimony is based on 

sufficient facts or data, (2) the testimony is the product of reliable 

principles and methods, and (3) the witness has applied the 

principles and methods reliably to the facts of the case. 

Defendants argue that Clarke is not a design engineer, and thus is not qualified to: (1) opine on 

whether there is a design defect in the vehicle; or (2) offer an alleged safer alternative design. 

Defendants further offer that Clarke’s conclusions are not reliable as they do not meet the 

Daubert reliability factors, and are not relevant because they ignore evidence in the record. 

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1. Legal Standard 

 

Under Rule 702, an expert’s opinion is admissible, by the discretion of the trial court, if: 

(1) the expert is qualified as such by knowledge, skill, experience, training, or education; (2) the 

testimony is relevant, meaning it will assist the trier of fact to understand the evidence or to 

determine a fact in issue; and (3) the testimony is reliable, meaning it is based on sufficient facts 

or data, is the product of reliable principles and methods, and the witness has applied the 

principles and methods reliably to the facts of the case. In re Scrap Metal Antitrust Litig., 527 

F.3d 517, 528-29 (6th Cir. 2008). 

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that while the 

evaluation of expert testimony is generally left to juries, district courts must serve in a 

“gatekeeping” capacity, “ensuring that an expert’s testimony both rests on a reliable foundation 

and is relevant to the task at hand.” 509 U.S. 579, 597-98 (1993). Daubert set forth a nonexclusive check-list for assessing the reliability of scientific expert testimony: (1) whether the 

theory or methodology has been or can be tested; (2) whether it has been subjected to peer 

review; (3) whether it has a known or potential rate of error; and (4) whether it has been 

generally accepted in the scientific community. Id. at 593-94. 

In Kumho Tire Co. v. Carmichael, the Supreme Court clarified that the reliability inquiry 

Daubert outlined covers not just scientific testimony, but also expert testimony based on—in the 

language of Rule 702—“technical” and “other specialized knowledge.” 526 U.S. 137 (1999). In 

Kumho the Supreme Court also recognized, however, that the Daubert factors “may or may not 

be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular 

expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150; see Gross v. Comm’r,

272 F.3d 333, 339 (6th Cir. 2001) (explaining that the Daubert factors “are not dispositive in 

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every case” and should be applied only “where they are reasonable measures of reliability of 

expert testimony”). 

This Circuit has held that an expert must utilize in the courtroom the “same level of 

intellectual rigor that characterizes the practice of an expert in the relevant field.” Best v. Lowe’s 

Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009) (internal quotation marks omitted). 

Determining the admissibility of expert testimony pursuant to Rule 702, however, entails a 

flexible inquiry. Daubert, 509 U.S. at 594. The burden on a party proffering expert testimony is 

to “show by a preponderance of proof that the expert whose testimony is being offered is 

qualified and will testify to scientific knowledge that will assist the trier of fact in understanding 

and disposing of relevant issues.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 

2008) (citing Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.2000)) (internal quotation marks 

omitted). 

Where the reliability of the evidence is in dispute, it is more appropriate for a judge to 

admit the evidence than to keep it from the fact-finder because “[v]igorous cross-examination, 

presentation of contrary evidence, and careful instruction on the burden of proof are the 

traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 

U.S. at 596. 

2. Clarke’s Qualifications 

Initially, a witness must establish his or her expertise by reference to “knowledge, skill, 

experience, training, or education” in order to qualify as an expert under Rule 702. Although the 

“qualification” element of the Rule 702 analysis “is typically treated liberally, a witness is not an 

expert simply because he claims to be.” Rose v. Truck Centers, Inc., 388 F. App'x 528, 533 (6th 

Cir. 2010). “The issue with regard to expert testimony is not the qualifications of a witness in the 

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abstract, but whether those qualifications provide a foundation for a witness to answer a specific 

question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994). 

Defendants argue that in a design defect claim, Plaintiffs must offer evidence, through 

expert testimony, that the foreseeable risks of the vehicle’s design exceeded the benefits 

associated with the design. Further, Defendants argue that the burden is on the Plaintiffs to show 

that “a practical and technically feasible alternative design ... would have prevented the harm for 

which the claimant seeks to recover....” Ohio Rev.Code § 2307.75(F). In light of these standards 

for establishing a design defect claim, Defendants contend that Clarke’s education and 

experience do not qualify him to engage in a critical analysis of the risks and benefits associated 

with the vehicle’s design, nor to provide testimony on a practical and technically feasible 

alternative design of the stiffener plate. 

Defendants concede that Clarke is qualified as an expert in Failure Mode Analysis with 

respect to vehicle fires, and thus qualified to opine on the cause and origin of fire in the vehicle. 

They argue, however, that the origin of fire is not at issue in this case. Instead, they contend that 

Clarke’s qualification as a fire analyst is irrelevant to the pending issues in this case including: 

(1) the cause of the accumulation of debris; (2) whether the foreseeable risk of the design of the 

stiffener plate exceeded the benefits associated with its design; and (3) whether Clarke’s 

alternative design of the stiffening plate was practical, technically feasible and would have 

prevented the fire. Defendants assert that Clarke’s experience and education are irrelevant to 

these design-specific questions because he is not a licensed engineer and neither his experience 

nor education includes scientific principles of vehicle design or expertise in vehicle 

aerodynamics. 

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Plaintiffs respond that Mr. Clarke’s opinion is not that the presence of openings in the 

BMW is the defect. Rather, the defect in the vehicle is that debris was naturally permitted to 

accumulate in the engine compartment in close proximity to heated surfaces due to the design of 

the stiffener plate, which lacks any holes to permit self-cleaning, and which has six protruding 

bolts that trap debris. He opines that this is what caused the fire, and that a change in the stiffener 

plate would have prevented the fire. Plaintiffs contend that Clarke is qualified to offer these 

opinions because he has a four-year degree in Automotive Engineering and has been involved in 

the automotive industry since 1982. He has investigated hundreds of vehicle fires in his career, in 

which he has evaluated whether conditions in the vehicle constituted a faulty or defective 

condition that caused a fire or injury and whether that condition could be remedied feasibly in 

order to prevent an accident. Mr. Clarke proposes alternative designs in his current consulting 

position, and proposed alternative designs in his previous position as a National Field Service 

Engineer for Lotus, for General Motors, and for the Lotus Formula 1 racing team. Further, 

Plaintiffs argue that the stiffener plate is not a complex car component that requires 

particularized design knowledge, and that his alternative design is already in use in newer 

models of the vehicle. 

As a basis to exclude Clarke’s testimony, Defendants liken Clarke to a mechanic with no 

greater knowledge of mechanical engineering principles than the average juror, and rely on 

Sigler v. Am. Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) and Rose v. Truck Centers, Inc., 

611 F. Supp. 2d 745 (N.D. Ohio 2009) aff'd, 388 F. App'x 528 (6th Cir. 2010). Defendants argue 

that in both cases, courts excluded mechanics from testifying about vehicle defects and 

causation, because they found such conclusions exceeded the scope of the mechanic’s expertise. 

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Defendants ignore, however, that the Appellate Court in Rose overturned the district 

court’s determination that the mechanic did not qualify as an expert because he lacked the formal 

education, training, and experience to offer an opinion regarding whether the steering gear was 

defective. Rose v. Truck Centers, Inc., 388 F. App'x 528, 534 (6th Cir. 2010). Instead, the 

Appellate Court held that the mechanic was “qualified as an expert since his testimony would 

certainly assist the trier of fact in understanding the evidence.” Id. Specifically, the Appellate 

Court found that the record showed the mechanic’s experiences gave him specialized knowledge 

in the areas of truck mechanics and steering gears and that he understood the process of 

torqueing the steering gear bolts and how a misstep could have caused an accident. Id. In 

addition, the Appellate Court in Rose noted that in Sigler, the Court had similarly found the 

mechanic to be an “expert with regard to analyzing an automobile after an accident,” and only 

excluded him as an expert because they “concluded that he lacked the expertise to render opinion 

about an airbag defect without physically examining the vehicle, which he had failed to do.” Id. 

The Appellate Court in Rose held, accordingly, that the case before them was distinguishable 

from Sigler because Plaintiff’s expert had examined the faulty vehicle. Id. The Appellate Court 

went on to hold, however, that while the mechanic in the case before them was qualified as an 

expert to opine on the steering gear’s malfunction, his opinion was unreliable because his 

methods were unreliable—the evidence that he relied upon had been altered and thus could not 

reasonably support his expert opinions. Id.

Defendants offer an alternative argument, that even if Clarke is deemed to have sufficient 

education or experience in some respects, Rule 702 requires experts to have specialized 

knowledge, which Clarke lacks in the area of engine compartment covers, and aerodynamics and 

airflow issues. In Newell Rubbermaid, Inc. v. Raymond Corp., the Court held that while a 

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witness was a highly educated licensed engineer with board certification in forensic engineering, 

and a member of six professional societies, he lacked any specialized knowledge in forklifts, the 

product at issue in the case, and could not be identified as an expert in the field of forklifts. No. 

5:08-CV-2632, 2010 WL 2643417, at *3 (N.D. Ohio July 1, 2010) aff'd, 676 F.3d 521 (6th Cir. 

2012). The Court noted as persuasive in its decision to exclude the witness that the witness had 

never designed any component of a forklift, nor consulted with a forklift manufacturer with 

respect to the design of a forklift. Id. at 4. In Early v. Toyota Motor Corp., 277 F. App'x 581, 

584-87 (6th Cir. 2008), the Court excluded a witness who had a degree in mechanical 

engineering, but no license, and also who had no specific experience in automotive design or 

manufacturing, or experience in the design or installation of a dust seal, the car component at 

issue in that case. Clarke similarly has no engineering license, though he has experience in the 

automotive industry, and in assessing defects and recommending designs. He does not, however, 

hold himself out to be a design expert. 

In response, Plaintiffs present cases to support the argument that the details of Clarke’s 

academic qualifications bear on the weight of Clarke’s testimony, not its admissibility. Further, 

they argue that his experience in the automotive industry and vehicle fires permit him to testify 

on the design issues in this case as they relate to fire cause and prevention, even if he does not 

have specialized knowledge of under-engine covers. See Benton v. Ford Motor Co., 492 F. Supp. 

2d 874, 876-78 (S.D. Ohio 2007) (holding “where the opposing side has the opportunity to crossexamine an expert regarding his qualifications and where the jury is properly instructed to 

determine for itself the weight and credibility to be given to the expert's testimony, an argument 

opposing admissibility of the testimony on the grounds that it is outside the witness's area of 

expertise must fail.”); see also Williams v. Gen. Motors Corp., No. 1:03-CV-02060, 2007 WL 

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3232292, at *1-2 (N.D. Ohio Oct. 30, 2007); Floyd v. Pride Mobility Products Corp., No. 1:05-

CV-00389, 2007 WL 4404049, at *2-5 (S.D. Ohio Dec. 12, 2007). 

In Benton, a vehicle rollover case, the Court found it immaterial that the expert had no 

formal education or background in the automotive industry. Id. The Court held that his 

experience in accident reconstruction, which entailed an understanding in vehicle design and 

dynamics applied to the more than 50 roll-over accidents he has analyzed and the use of the 

stability index ratio, qualified him as an expert as to the design issues in this case. Id. In Williams 

v. Gen. Motors Corp., No. 1:03-CV-02060, 2007 WL 3232292, at *1-2 (N.D. Ohio Oct. 30, 

2007), the Court rejected arguments that an expert was not qualified to testify on fuel system 

design because he was not a licensed engineer, and had no specific expertise in fuel system 

design for medium-duty trucks, the area of his proposed testimony. The Williams Court found 

that the proposed expert was experienced in various areas of the automotive industry and 

mechanics, and had post-graduate study in Industrial Design and Technology and a 

specialization in Automotive Technology. Further, he had been accepted by various courts as an 

expert, including one where he testified on the same vehicle component that was at issue in the 

case. Finally, in Floyd v. Pride Mobility Products Corp., No. 1:05-CV-00389, 2007 WL 

4404049, at *2-5 (S.D. Ohio Dec. 12, 2007), the Court relied on Benton to hold that an expert 

could opine on alternative designs of scooters—even though he was not involved in the scooter 

industry and had no design background—because the expert relied on experience and sufficient 

data related to accident scene. 

Like in Rose, this Court agrees that “Rule 702 should be broadly interpreted on the basis 

of whether the use of expert testimony will assist the trier of fact.” 388 F. App'x at 534 (citing 

Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 919 (6th Cir.1984)). Clarke is a thirty-two year 

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veteran of the automotive industry, qualified to offer opinions about causation, prevention and 

design as it relates to fire cause and prevention. As such this Court finds Clarke’s opinions will 

assist the trier of fact. The scope of his expertise in vehicle design and engineering may cut 

against the weight of his testimony regarding the vehicle defect and an alternative design, but not 

its admissibility. 

Unlike the expert in Newell, who had no background in the forklift industry, Clarke has a 

range of experiences in vehicle mechanics and design, including some experiential background 

in aerodynamics, and extensive experience in assessing car defects as it relates to fire defects, 

and prevention. Further, like in Benton, while Clarke does not have a design degree, his 

experience in investigating hundreds of vehicle fires, and in analyzing car defects and 

recommending alternatives in his current position as a consulting engineer and in his previous 

position as National Field Service Engineer for Lotus, qualify him to conclude the origin of a fire 

and how the vehicle could have been modified to prevent such a fire. Even if his qualifications 

arguably fall short of his ability to testify on the feasibility and risks versus benefits of his 

stiffener plate design, there is no need for him to theorize because he offers testimony that his 

alternative design is already in use by BMW’s newer models of the vehicle. See Simo v. 

Mitsubishi Motors N. Am., Inc., 245 F. App'x 295, 299-300 (4th Cir. 2007) (finding that there 

was no need to determine whether expert witness qualified to testify regarding an alternative car 

design to remedy risk of rollover because the expert testified that a feasible alternative design 

was already on the market). Lastly, the Court follows the rationale in William and Floyd, that 

under the facts of this case, Clarke need not have specialized knowledge of the exact component 

at issue, the stiffener plate, in order to make conclusions that assist the trier of fact. Clarke’s 

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experience in the automotive industry and his observations of the vehicle and exemplar vehicles 

provide a sufficient foundation for him to opine on the vehicle defect and an alternative design. 

3. Reliability of Clarke’s Conclusions 

Next, this Court must analyze whether the evidence offered by Clarke rests on reliable 

reasoning and methodology. Although the test of reliability is “flexible,” and there is no 

“definitive checklist or test,” Daubert did set forth factors to consult when evaluating the 

reliability of expert testimony, including: testing, peer review, publication, error rates, the 

existence and maintenance of standards controlling the technique’s operation, and general 

acceptance in the relevant scientific community. Kumho, 526 U.S. at 150 (citing Daubert, 509 

U.S. at 593-94). The Daubert factors “are not dispositive in every case” and should be applied 

only “where they are reasonable measures of the reliability of expert testimony.” In re Scrap 

Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (citing Gross v. Comm’r, 272 F.3d 333, 

339 (6th Cir.2001)). 

Defendants argue that Clarke’s analysis of the vehicle fire, which was limited to 

inspecting the vehicle in question, and inspecting an exemplar 2009 BMW 328xi, is not 

sufficient to support his conclusions regarding the alleged vehicle defect and his proposed 

alternative design. He did not test his theory that the vehicle’s aerodynamics or airflow permit 

debris to enter through openings in the hood, through NACA ducts, or through any other way 

during normal use of the vehicle. Further, Clarke is not specific about which openings allegedly 

allowed in the debris. (Doc. 70 at 95-96). In addition, Clarke did not identify any other fires in 

similar vehicles attributable to the alleged defect, nor did he conduct testing or analysis to 

determine whether all 2007 BMW 328xi’s are similarly defective. 

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As to the feasibility of Clarke’s alternative design of the stiffener place, Defendants argue 

that Clarke has not tested his design’s strength, structural integrity, aerodynamic properties, or its 

airflow properties. Defendants contend that Clarke’s design, which he labeled “primitive,” 

ignores the benefits associated with the stiffener plate as designed, including: controlling noise 

emissions, reducing drag, and making the car more fuel efficient. Defendants contend that the 

scientific community would not accept a non-engineer offering an aerodynamic design change to 

a vehicle without applying engineering principles. Also, Defendants argue that Clarke developed 

this design and his theory about the stiffener plate for the purposes of litigation. Finally, Clarke’s 

theory about the risk of debris fires due to the construction of stiffener plates, as well as his 

alternative design, have not been subject to peer review or validation, or the subject of any other 

publication to Defendants’ knowledge. 

Plaintiffs respond that the design issues in this case are simple, considering the stiffener 

plate is a solid piece of aluminum connected to the underside of the vehicle. Relying on Nemir v. 

Mitsubishi Motor Sales of Am., Inc., 6 F. App'x 266 (6th Cir. 2001), Plaintiffs argue that Clarke’s 

opinions are derived from inferences based on a scientific method and that those inferences are 

derived from the facts of the case. Id. (holding that Daubert requires “only that the expert 

testimony be derived from inferences based on a scientific method and that those inferences be 

derived from the facts of the case at hand ... not that they know the answers to all the questions a 

case presents-even to the most fundamental questions.”). Plaintiffs contend that Clarke utilized 

the scientific method when he concluded that the design defect was the position and construction 

of the stiffener plate. First, Clarke considered that all post-fire examination of the vehicle found 

that organic debris wedged in the area of the stiffener plate and next to the exhaust system was 

the cause of the fire. Next, testing performed by Plaintiffs’ expert, Keaton, confirmed that the 

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temperatures generated in the exhaust system were sufficient to ignite that material. After that, 

Clarke inspected the vehicle and determined that the debris got trapped in the area between the 

stiffener plate and exhaust component because the stiffener plate had no openings and had 

protruding bolts where debris likely got stuck. Finally, he considered the design of the vehicle 

and examined two exemplars that had holes in the stiffener plate. 

Relying on Nemir, Plaintiffs contend that although two competing theories exist as to 

how the debris got lodged on the stiffener plate, the determination of which theory is more 

credible is a question for the jury. Id. at 275 (holding that when possibilities besides those 

offered by experts exist with regards to causation, the “fact that several possible causes might 

remain ‘uneliminated’... only goes to the accuracy of the conclusion, not the soundness of the 

methodology”). Further, Plaintiffs state that Clarke offered the opinion that the risk of fire 

inherent in the design of the stiffener plate outweighed any benefits that the stiffener plate offers, 

considering the serious consequences of a vehicle fire. In addition, Plaintiffs offer ample cases 

showing this Circuit has held consistently that an expert’s failure to perform his own independent 

tests or studies of his alternative design or theories goes to the weight of his testimony, not to its 

admissibility. 

This Court finds that Clarke’s methodology in assessing the defect and proposing an 

alternative design was sufficiently reliable considering the facts of the case. As the Court stated 

in Kumho: 

Experts of all kinds tie observations to conclusions through the use of what Judge 

Learned Hand called “general truths derived from ... specialized experience.” Hand, 

Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 

40, 54 (1901). And whether the specific expert testimony focuses upon specialized 

observations, the specialized translation of those observations into theory, a specialized 

theory itself, or the application of such a theory in a particular case, the expert's 

testimony often will rest “upon an experience confessedly foreign in kind to [the jury's] 

own.” Ibid. The trial judge's effort to assure that the specialized testimony is reliable 

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and relevant can help the jury evaluate that foreign experience, whether the testimony 

reflects scientific, technical, or other specialized knowledge. 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-49 (1999). 

Here, Clarke, a specialist in fire causation in vehicles, with thirty-two years of 

experience in the technical side of the automotive industry, translated specialized 

observations into a theory about the fire’s origin and ways to prevent like fires. His theory 

regarding a modified stiffener plate is very basic, and other such stiffener plates exist on the 

market, including in the subject vehicle’s newer model. Further, Clarke’s contention that the 

benefits inherent in the stiffener plate as designed—including better gas mileage, 

aerodynamics and internal heating—do not outweigh the deadly risk of fire, is also 

sufficiently straightforward. Accordingly, the risk/benefit analysis in this case is a question 

more appropriate for the jury, and not for summary judgment. As such, the Court finds that 

Clarke’s failure to test the aerodynamics of his alternative design goes to weigh, not to 

admissibility of his testimony. See Clay v. Ford Motor Company, 215 F.3d 663, 668 (6th 

Cir.2000) (failure to test goes to weight not admissibility); accord Williams 2007 WL 

3232292, at *2 (N.D. Ohio Oct. 30, 2007) (holding that an expert witness presented reliable 

testimony, even though he did not perform any testing and his theory was not generally 

accepted, because conclusions were “supported by rational explanations and his methods 

d[id] not strike the court as novel or extreme”). 

6. Relevance of Clarke’s Conclusions 

Defendants argue that Clarke’s conclusions are not relevant because his conclusions are 

based on unsupported assumptions, and his theories do not fit the facts of this case. Specifically, 

Defendants argue that Clarke ignores evidence that Defendants placed in the record—including 

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evidence of extensive airflow and aerodynamic testing and evaluation done on the E90 

platform—showing that debris cannot infiltrate the engine compartment. Defendants claim that 

Clarke also ignored that he could not identify another vehicle with a similar design where 

openings around the hood allowed infiltration and accumulation of debris in the engine, thus 

causing a fire. Further, Defendants assert that Clarke ignores that the two exemplar vehicles that 

both parties inspected had substantially more miles than the subject vehicle and were not found 

to contain debris in the under-engine compartment covers. Lastly, Defendants argue that Clarke 

did not inspect the under-engine compartment attached to the exemplar 2009 BMW 328xi he 

inspected a week before the deposition to see if debris had collected there. Thus, Defendants 

argue, the facts available in the case do not support Clarke’s conclusions and are not relevant 

because they will not assist jurors, but merely confuse them. 

In Daubert, the Supreme Court emphasized that in addition to examining the reliability of 

the expert’s testimony, the trial court must ensure that the proposed expert testimony is “relevant 

to the task at hand.” Daubert, 509 U.S. at 580. The relevance requirement in the Rule 702 

inquiry “relates to the ‘fit’ of the testimony, that is, ‘whether the reasoning or methodology 

properly can be applied to the facts in issue [,]’ Daubert, 509 U.S. at 593, so as to assist the trier 

of fact.” Newell Rubbermaid, Inc., 2010 WL 2643417, at *9-10. Further, the trial court must 

determine whether the expert’s training and qualifications relate to the subject matter of his 

proposed testimony. Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997). 

The relevancy prong goes to whether the proposed testimony is probative of a material 

issue in the case. ’ Daubert, 509 U.S. at 580, 593. The Court has already determined that 

Clarke’s background in the automotive industry and failure mode analysis qualifies him to offer 

testimony on the cause of the fire, the defect that contributed to the fire, and an alternative 

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design. Whether Defendants will proffer evidence undermining such conclusions is a matter for 

the jury, but does not go to the relevancy of Clarke’s opinions. Additionally, this Court has 

already determined that Clarke’s methodology in determining the vehicle’s defect and proposing 

an alternative design, albeit limited, was sufficient considering the facts in the case. Thus, while 

Defendants are free to undermine the reliability of such methodology on cross-examination, 

Clarke’s proposed testimony regarding the cause of the fire, the defect, and the alternative design 

is relevant to material issues in dispute in this case. 

 As this Court has found Richard Clarke’s testimony satisfies Rule 702, Defendants’ 

Motion to Exclude the Testimony of Richard A. Clarke, (Doc. 77), is hereby DENIED. 

B. Plaintiff’s Motion to Strike the Affidavits of Thomas Slaba and Richard Keefer 

 Next, this Court will address Plaintiffs’ Motion to Strike the Affidavits of Thomas Slaba 

and Richard Keefer, attached to their Response to Defendants’ Motion for Summary Judgment. 

(Doc. 83). 

1. Slaba’s Affidavit

 Thomas Slaba provided deposition testimony in this case in response to Plaintiffs’ 

Federal Rule of Civil Procedure 30(b)(6) notice served upon BMW AG. The deposition notice 

requested that Mr. Slaba testify with respect to any evaluation, analysis, testing or inspections 

performed by BMW AG or any other contracted individuals, to determine the potential for fires 

in the vehicle as a result of the accumulation of unintended debris in the areas of the catalytic 

converters or the exhaust down pipes. When asked in his deposition whether BMW performed 

any testing to determine whether combustible debris such as foliage, leaves and other organic 

matters could accumulate next to the stiffener plate, Slaba responded: 

There was no specific testing done with regard to the accumulation of debris, but 

the vehicles were subject to regular testing where they are also inspected for dirt 

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and debris...when we do normal testing of the vehicle, it did not show that things 

like that would happen. 

(Slaba Deposition, Doc. 74 at 54-56). Then, in his affidavit attached to the Defendants’ Motion 

for Summary Judgment, Slaba states: 

The design, research and development of the E90 platform included extensive 

airflow and aerodynamics design, research and development. No evidence of 

‘debris’ infiltrating the engine compartment via ‘openings in the hood,’ or in any 

other fashion, was ever discovered. 

(Doc. 78-2 at ¶¶ 26-7). 

Plaintiffs argue that the Court should disregard the affidavit testimony regarding 

aerodynamic testing of the vehicle because such testimony contradicts Slaba’s prior deposition 

testimony. Further, Plaintiffs rely on Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 681 (6th Cir. 

2011), and a similar line of cases, to argue that this Circuit has repeatedly rejected affidavits 

submitted by witnesses in the context of summary judgment when such information offered in 

the affidavits was available at the time of the deposition but not disclosed. Plaintiffs contend that 

Clarke’s affidavit opinion regarding the aerodynamic testing of the vehicle was available at the 

time of his deposition but not disclosed, and, thus, should be stricken. 

Defendants respond that Slaba’s affidavit merely reiterates his deposition testimony and 

expounds upon it to provide the Court with the details and facts supporting his conclusions, 

which Plaintiffs failed to address during the deposition. 

 Both parties rely on Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899 (6th Cir. 2006) 

for the standard this Court should apply when determining the admissibility of a post-deposition 

affidavit at summary judgment. Aerel held that the first step in such an inquiry is to “determine 

whether the affidavit directly contradicts the nonmoving party's prior sworn testimony. . . . A 

directly contradictory affidavit should be stricken unless the party opposing summary judgment 

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provides a persuasive justification for the contradiction.” Id. at 908. If, however, the district court 

finds no contradiction, then it should not “strike or disregard that affidavit unless the court 

determines that the affidavit ‘constitutes an attempt to create a sham fact issue.’” Id. To 

determine whether the affidavit is an attempt to create a sham fact issue, the court can look to a 

nonexhaustive list of factors, including, “whether the affiant was cross-examined during his 

earlier testimony, whether the affiant had access to the pertinent evidence at the time of his 

earlier testimony or whether the affidavit was based on newly discovered evidence, and whether 

the earlier testimony reflects confusion [that] the affidavit attempts to explain.” Id.at 909. 

 This Court holds that Slaba’s affidavit does not contradict his deposition testimony 

regarding aerodynamic testing of the vehicle, but rather restates what was already contradictory 

and/or unclear testimony in his deposition. On the one hand, Slaba’s deposition testimony can be 

interpreted to mean that no aerodynamic testing was done specifically regarding the stiffener 

plate; on the other hand, the deposition testimony can be interpreted to mean that Slaba’s opinion 

of the BMW aerodynamic testing is that the results excluded the possibility of such a build-up of 

debris near the stiffener plate. His affidavit is similarly contradictory and/or unclear: it states that 

BMW conducted unspecified aerodynamic testing on the vehicle, which did not reveal evidence 

of debris infiltrating the engine compartment via openings in the hood or otherwise. Such 

testimony does not confirm or deny that specific aerodynamic testing was done concerning 

collection of debris on the stiffener plate, only that in the unspecified testing performed, no such 

evidence was discovered. As the affidavit merely restates what was already contradictory or 

unclear deposition testimony, this Court need not address whether such testimony is an attempt 

to raise a sham fact. Instead, the affidavit testimony adds no new facts to the case. Accordingly, 

this Court hereby DENIES Plaintiffs’ Motion to Exclude the Slaba’s Affidavit. 

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2. Affidavit of Richard Keefer 

 In their witness disclosures, Defendants produced the report of Richard Keefer, a 

licensed engineer, who inspected the vehicle and evaluated Mr. Clarke’s claims that the 

vehicle was defectively designed. Plaintiffs argue that Keefer’s affidavit attached to 

Defendants’ Motion for Summary Judgment contains untimely disclosed expert opinion, 

and should be stricken. 

 Plaintiffs argue that in Keefer’s November 18, 2013 expert report, he notes: 

“examination of the accident and exemplar vehicle and their underbody covers indicates 

area of small openings that would permit access to the underbody of the vehicle as well 

as airflow.” (Doc. 83-5). In Keefer’s Deposition, Plaintiffs asked him whether his report 

included any opinion as to how combustible materials made its way to the ignition 

surface of the exhaust, or whether Clarke’s opinions of how material got onto the hot 

surface were correct. Keefer responded that he did not offer either of those opinions in his 

report. (Doc. 83-6). Then, when asked if he thought debris could enter via the hood, he 

stated that he thought it could not. Keefer did not offer a specific opinion about how 

debris could enter the engine compartment, nor was he asked to offer such an opinion. In 

his affidavit, however, he details with specificity why debris could not have entered 

through the hood. 

 Plaintiffs argue that they are entitled to rely on expert disclosures by an adverse 

party in developing deposition questioning. Plaintiffs contend that Defendants knew of 

Clarke’s opinion concerning openings in the hood three weeks prior to the deposition, 

and that Keefer should have produced a supplemental expert report setting forth his 

detailed opinions about why debris could not have entered via the hood. 

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Defendants respond that Keefer made clear he did not think debris could enter via 

the hood during his deposition, and that his affidavit merely expounded upon those 

opinions because Plaintiffs failed to ask any follow-up questions regarding Keefer’s 

opinion. 

This Court finds that Plaintiffs were free to ask detailed questions regarding Keefer’s 

opinion and failed to do so. Plaintiffs were on notice from Keefer’s report that Keefer believed 

debris had entered via openings in the under-body cover, and not openings in the hood. Further, 

Plaintiffs were aware that Keefer did not think debris could enter via the hood due to his 

responses in the deposition itself. As such, this Court DENIES Plaintiffs’ Motion to Exclude 

Keefer’s Affidavit. 

C. Summary Judgment 

 The Court will now address Defendants’ Motion for Summary Judgment on Plaintiffs’ 

following claims: (1) breach of implied warranty against both BMW Defendants (Count IV); (2) 

product liability under OPLA against the manufacturer, BMW AG (Count III); and (3) product 

liability under the Ohio Product Liability Act (“OPLA”) against the supplier, BMW NA (Count 

II). (Doc. 78). 

1. Standard for Summary Judgment

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it 

“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United 

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States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 

 The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting 

Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the 

light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs., 

Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court reviewing a summary judgment motion need 

not search the record in an effort to establish the lack of genuinely disputed material facts, 

however. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir.1992). Rather, 

the burden is on the nonmoving party to present affirmative evidence to defeat a properly 

supported motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), and to 

designate specific facts that are in dispute. Anderson, 477 U.S. at 250; Guarino, 980 F.2d at 

404–05. 

To survive the motion the nonmoving party must present “significant probative evidence” 

to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. 

Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The mere existence of a scintilla of 

evidence in support of the opposing party's position will be insufficient to survive the motion; 

there must be evidence on which the jury could reasonably find for the opposing party. See 

Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also

Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (finding that the suggestion of a 

mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment) 

(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). 

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2. Count IV: Implied Warranty Claim

 First, Defendants assert that OPLA abrogates Plaintiffs’ breach of implied warranty 

claim, entitling Defendants to summary judgment as a matter of law on Count IV. OPLA states 

that its sections “are intended to abrogate all common law product liability claims or causes of 

action.” O.R.C. § 2307.71(B). OPLA defines a “product liability claim” as: 

a claim or cause of action that is asserted in a civil action pursuant to sections 

2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory 

damages from a manufacturer or supplier for death, physical injury to person, 

emotional distress, or physical damage to property other than the product in 

question, that allegedly arose from any of the following: 

(a) The design, formulation, production, construction, creation, assembly, 

rebuilding, testing or marketing of that product; 

(b) Any warning or instruction, or lack of warning or instruction, associated with 

that product; 

(c) Any failure of that product to conform to any relevant representation or 

warranty. 

§ 2307.71(A)(13). Defendants argue that since OPLA abrogates all common law product defects 

claims, which by OPLA’s definition includes any failure of a product to conform to any relevant 

representation or warranty, OPLA accordingly preempts Plaintiffs’ common law breach of 

implied warranty claim. 

 Plaintiffs respond that they bring the breach of warranty claim solely to recover for 

economic damages—i.e., the vehicle itself and incidentals related to the Patrick’s lodging while 

their home was being repaired—and not for compensatory damages related to damage to the 

Patricks’ home. By its language, Plaintiffs argue, OPLA does not abrogate such a claim, since 

OPLA defines a product liability claim as one that seeks to recover compensatory damages, not 

economic damages, for physical injury to person, emotional distress, or physical damage to 

property other than the product in question. Further, Plaintiffs argue that O.R.C. § 2307.72(C) 

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supports their reading of O.R.C. § 2307.71(A)(13). O.R.C. § 2307.72(C) is an OPLA provision 

covering damages, and it states: 

Any recovery of compensatory damages for economic loss based on a claim 

that is asserted in a civil action, other than a product liability claim, is not 

subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur 

under the common law of this state . . . 

O.R.C. § 2307.72(C) (emphasis added). 

 To be clear, although OPLA does not classify a claim for economic damages as a 

“product liability claim,” that does not mean that OPLA precludes recovery of economic 

damages entirely. Instead, OPLA makes any recovery of economic damages contingent on an 

award of compensatory damages: 

(A) If a claimant is entitled to recover compensatory damages for harm from a 

manufacturer in accordance with section 2307.73 of the Revised Code or from a 

supplier in accordance with division (B) of section 2307.78 of the Revised Code, 

the claimant may recover from the manufacturer or supplier in question, in that 

action, compensatory damages for any economic loss that proximately resulted 

from the defective aspect of the product in question. 

O.R.C. § 2307.79(A). In other words, under OPLA, recovery on the Patricks’ vehicle is 

derivative of Plaintiffs’ success in showing that a design defect in the vehicle damaged the 

Patricks’ home. 

 Courts in this Circuit have held that to the extent a Plaintiff brings common law claims 

for breach of implied warranty in tort and negligence for defective design and failure to warn, 

seeking purely economic damages, and does not bring any claims under OPLA for compensatory 

damages, OPLA does not abrogate those common law claims. In re Whirlpool Corp. FrontLoading Washer Products Liab. Litig., No. 1:08-WP-65000, 2014 WL 4674670, at *11 (N.D. 

Ohio Sept. 19, 2014) (citing Hoffer v. Cooper Wiring Devices, 2007 WL 1725317 (N.D.Ohio 

June 13, 2007) (Boyko, J.)). 

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 The case sub judice is distinguishable from Whirlpool, however, because Plaintiffs bring 

both an OPLA claim for compensatory damages, and also a common law negligence claim for 

economic damages, under the same set of facts. Accordingly, Plaintiffs urge this Court to follow 

Huffman v. Electrolux N. Am., Inc., which held that a Plaintiff may bring, simultaneously, a 

common-law products liability claim for purely economic damages and an OPLA claim for 

compensatory damages, even if both claims are based on the same set of underlying facts, so 

long as the claims are pled in the alternative. 961 F. Supp. 2d 875, 881 (N.D. Ohio 2013) on 

reconsideration sub nom. Huffman v. Electrolux Home Products, Inc., No. 3:12CV2681, 2013 

WL 5591939 (N.D. Ohio Sept. 30, 2013). 

 In Huffman, Plaintiff sued Defendant under both OPLA and common law implied 

warranty claims for a washing machine that smelled of mold. Plaintiff sought compensatory 

damages under her OPLA claim, and only economic loss damages under her common-law 

claims. Id. at 878. The Huffman Court acknowledged that it is uncontested that the “General 

Assembly amended the OPLA to make clear that it had intended for the Act to supersede 

common-law negligence claims,” including implied warranty claims. Huffman, at 879 (citing

Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir.2010)). The Huffman Court noted, further, that “it 

is well-established that under the OPLA, claimants cannot recover only economic damages.” 

Huffman at 881(citing State Farm Mut. Auto. Ins. Co. v. Kia Motors Am., Inc., 160 Ohio App.3d 

727, 734, 828 N.E.2d 701 (2005). Lastly, the Court recognized precedent in the case Mitchell v. 

Proctor & Gamble, which held that: 

a plaintiff cannot bring a common-law negligence claim for economic damages 

where the actionable conduct that forms the basis of the negligence claim ... is the 

same conduct that ... giv[es] rise to [the] products liability claim. The [Mitchell] 

court further stated a plaintiff cannot separate out his claims from the purview of 

the OPLA simply by claiming only economic losses.

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Huffman at 880 (internal quotations and citations omitted).

 The Huffman Court declined to follow Mitchell, however, because doing so meant that a 

plaintiff would have to choose between recovering only for economic loss under a common law 

negligence theory, or bringing an OPLA claim, with the risk that failure to establish a 

compensatory damages claim under OPLA would bar the plaintiff’s contingent right to economic 

damages:

Given the [OPLA’s] prohibition on recovering solely economic loss damages, the 

court's decision in Mitchell—that a plaintiff asserting an OPLA claim cannot 

bring common-law claims arising out of the same alleged defect—turns a 

plaintiff's recovery of economic loss damages into a gamble. The court's decision 

requires plaintiffs to choose between a relatively certain recovery of economic 

loss damages and the possible recovery of compensatory damages plus economic 

loss damages. 

Id. at 881. 

 The Huffman Court determined, accordingly, that “Ohio law does not support 

circumscribing a plaintiff’s right to the remedy of economic loss damages. Under Ohio law, the 

right to a remedy, and more specifically, a consumer's right to recover solely economic loss 

damages is well-established.” Huffman at 881-82 (citing OHIO CONST. Art. I § 16 (“[a]ll courts 

shall be open and every person for an injury done him in his land, goods, person, or reputation, 

shall have remedy by due course of law.”); In re Whirlpool, supra, 684 F.Supp.2d at 949–950 

(citing Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 45, 537 N.E.2d 

624 (1989), LaPuma, supra, at 716; and Midwest Ford, Inc. v. C.T. Taylor Co., 118 Ohio App.3d 

798, 694 N.E.2d 114, 116–17 (1997))). 

 Thus, the Huffman Court held that although a Plaintiff cannot recover on both an OPLA 

claim and a common claim under the same set of facts, the Plaintiff has a procedural right to 

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assert common-law and OPLA claims simultaneously under Federal Rules of Civil Procedure 

8(d)(2), (3), which explicitly allow parties to assert inconsistent alternative theories.2

 

 This Court agrees with and follows the rationale in Huffman. Accordingly, this Court 

holds that Plaintiffs are permitted to argue in the alternative, and bring their OPLA claims for 

compensatory damages, and their common implied warranty claim for purely economic 

damages, under the same set of facts. Defendants’ motion for summary judgment as to Count IV 

is hereby DENIED. 

3. Count III: Products Liability Claim against BMW AG, Existence of a Defect 

 As a manufacturer, BMW AG is subject to liability under OPLA if Plaintiffs establish, by 

a preponderance of evidence, that the vehicle in question: 

was defective in manufacture or construction as described in section 2307.74 of 

the Revised Code, was defective in design or formulation as described in section 

2307.75 of the Revised Code, was defective due to inadequate warning or 

instruction as described in section 2307.76 of the Revised Code, or was defective 

because it did not conform to a representation made by its manufacturer as 

described in section 2307.77 of the Revised Code. 

Ohio Rev. Code § 2307.73(A). To survive summary judgment in an action brought under OPLA, 

Plaintiffs must prove: “(1) the existence of a defect in the product at issue, (2) that the defect 

existed at the time the product left the hands of the manufacturer, and (3) the defect was the 

direct and proximate cause of the plaintiff's injury.” Jones v. Staubli Motor Sports Div. of Staubli 

Am. Corp., 897 F. Supp. 2d 599, 612 (S.D. Ohio 2012). 

 Plaintiffs allege that BMW AG is liable under OPLA for: (1) a design defect in the 

vehicle which allegedly caused the fire; (2) a manufacturing defect in the vehicle that allegedly 

 

Rule 8(d)(2) states, “A party may set out 2 or more statements of a claim or defense alternatively 

or hypothetically, either in a single count or defense or in separate ones. If a party makes 

alternative statements, the pleading is sufficient if any one of them is sufficient.” 

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caused the fire; and (3) failure to warn of the purported fire risk. Defendants contend that 

Plaintiffs cannot establish any of the elements of the relevant standards for any of the product 

liability claims that Plaintiffs bring under OPLA. In addition, Defendants contend that the record 

shows that Plaintiffs have only pursued the design defect theory in the case, so they only address 

this product liability theory in their Motion for Summary Judgment. 

 The Court agrees that Plaintiffs do no develop the manufacturing defect theory or the 

failure to warn theory anywhere in the record. In addition, in their reply brief, Plaintiffs do not 

address Defendants’ contention that Plaintiffs have failed to pursue a manufacturing defect 

theory or failure to warn theory. (Doc. 81). As such, the Court will address only Plaintiffs’ 

design defect theory, and assume Plaintiffs have discarded other theories to establish product 

liability. 

a. Design Defect 

 Under Ohio Law, a product is defective in design “if, at the time it left the control of its 

manufacturer, the foreseeable risks associated with its design or formulation ... exceeded the 

benefits associated with that design or formulation.” O.R.C. § 2307.75(A). According to 

Subsection B of § 2370.75, “[t]he foreseeable risks associated with the design or formulation of a 

product shall be determined by considering factors including, but not limited to, the following: 

(1) The nature and magnitude of the risks of harm associated with that design or 

formulation in light of the intended and reasonably foreseeable uses, 

modifications, or alterations of the product; 

(2) The likely awareness of product users, whether based on warnings, general 

knowledge, or otherwise, of those risks of harm; 

(3) The likelihood that that design or formulation would cause harm in light of the 

intended and reasonably foreseeable uses, modifications, or alterations of the 

product; 

(4) The extent to which that design or formulation conformed to any applicable 

public or private product standard that was in effect when the product left the 

control of its manufacturer; 

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(5) The extent to which that design or formulation is more dangerous than a 

reasonably prudent consumer would expect when used in an intended or 

reasonably foreseeable manner. 

O.R.C. § 2307.75(B). “Foreseeable risk” means: 

a risk of harm that satisfies both of the following: 

(a) It is associated with an intended or reasonably foreseeable use, modification, 

or alteration of a product in question. 

(b) It is a risk that the manufacturer in question should recognize while exercising 

both of the following: 

(i) The attention, perception, memory, knowledge, and intelligence that a 

reasonable manufacturer should possess; 

(ii) Any superior attention, perception, memory, knowledge, or intelligence that 

the manufacturer in question possesses. 

O.R.C. § 2307.71(A)(6). Section 2307.75(C) has a non-exclusive list of factors that must be 

considered in determining the benefits of a design: 

(1) The intended or actual utility of the product, including any performance or 

safety advantages associated with that design or formulation; 

(2) The technical and economic feasibility, when the product left the control of its 

manufacturer, of using an alternative design or formulation; 

(3) The nature and magnitude of any foreseeable risks associated with an 

alternative design or formulation. 

O.R.C. § 2307.75(D). 

 “If the plaintiff fails to demonstrate a material issue of fact whether the foreseeable risks 

of a design outweigh the benefits of a design, the defendant will be entitled to summary 

judgment on a defective design claim.” Butts v. OMG, Inc., No. 1:11-CV-918, 2014 WL 

4628496, at *9 (S.D. Ohio Sept. 11, 2014) (citing Monroe v. Novartis Pharm. Corp., Case No. 

1:12–cv–00746 (WOB–KLL), 2014 WL 3378345, at *7 (S.D.Ohio July 10, 2014)). 

 BMW AG argues that summary judgment is appropriate on Plaintiffs’ defective design 

claim because: (1) Plaintiffs cannot maintain their claim without expert testimony; (2) the 

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purported scenario speculated by Clarke that led to the vehicle fire does not satisfy the definition 

of foreseeable risk; (3) the foreseeable risk in the vehicles design that Clarke alleges exists does 

not exceed the benefits of the vehicle’s design; and (4) Plaintiffs do not present a technically 

feasible alternative design. 

i. Expert Testimony 

 Defendants’ argue that Plaintiffs cannot prove the necessary elements of a design defect 

claim under OPLA because the testimony of Richard A. Clarke, Plaintiffs’ proposed expert 

witness, should be excluded under Fed. Evid. R. 702. Without an expert to establish the elements 

of the claim, Defendants argue, the design defect claim fails as a matter of law. This Court has 

already denied Defendants Motion in Limine to Exclude the Testimony of Richard Clarke. (Doc. 

77). As such, Defendants’ argument fails. 

ii. Foreseeable Risk Analysis 

 Defendants argue that the record does not establish that a foreseeable risk of fire existed 

in the vehicle as designed. As an initial point of clarification, Plaintiffs stated in their briefs, and 

reiterated at oral argument, that Mr. Clarke’s opinion is not that the presence of openings in the 

BMW is the defect. Rather, the defect in the vehicle is that debris was naturally permitted to 

accumulate in the engine compartment in close proximity to heated surfaces due to the design of 

the stiffener plate, which lacks any holes to permit self-cleaning, and which has six protruding 

bolts that trap debris. While Mr. Clarke opines that debris entered via openings in the hood and 

through the NACA ducts, Plaintiffs submit that this opinion is material only to contest the 

Defendants’ theory that debris entered due to a nesting rodent, and could not have entered due to 

the normal aerodynamics of the vehicle. 

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 Defendants respond, however, that before reaching the question of whether a foreseeable 

risk of fire exists in the stiffener plate as designed, it is Plaintiffs’ burden to show, first, that 

BMW AG should have recognized the risk that debris can enter the engine department and settle 

on the stiffener plate, through openings around hood or otherwise, during normal vehicle use. 

Plaintiffs have not met this burden, Defendants argue, as they have not presented any proof that 

debris can infiltrate the vehicle via openings in the hood or NACA duct, but their expert, Clarke, 

only opines that it is possible. In addition, Defendants will present two primary pieces of 

evidence showing a debris fire on the stiffener plate was not foreseeable. First, between 2004 and 

2012, BMW sold 1.8 million vehicles on the E90 platform, and the record does not show any 

other fires in similar vehicles attributable to the alleged defect. Second, BMW performed 

extensive aerodynamic testing on the vehicle, none of which revealed the possibility of debris 

entering the engine compartment during the normal course of vehicle operation. 

 In addition, Defendants argue that not a single factor used to determine foreseeable risk 

under § 2307.75(B) applies to the case sub judice. In terms of the first factor, Defendants will 

present evidence that it performed extensive testing at the design stage showing that debris of the 

kind that started the fire could not infiltrate the engine compartment via openings in the hood or 

accumulate in the vehicle’s engine compartment. (Doc. 78-3, Keefer Deposition). While Clarke 

opines that debris can enter via openings in the hood and the NACA ducts based on his 

inspection of the vehicle and two exemplars, he never tests this theory. As to the second and fifth 

factors, Defendants argue that they had no duty to warn of an unknown or unknowable risk, and 

that the vehicle is no more or less dangerous than a reasonable consumer would expect, because 

there is no design defect. As to factor three, Defendants assert that there is no likelihood that the 

vehicle design would cause the type of harm at issue because it is impossible for debris to 

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infiltrate the vehicle in the manner Plaintiffs propose, and Clarke has not presented any evidence 

that it is possible. 

 Plaintiffs counter that the collective testimony of all three of its experts establishes the 

prima facie case that the BMW was defective at the time the BMW left possession of the 

Defendants. In addition, Plaintiffs will cite to Defendants’ expert Richard Slaba’s deposition 

testimony to raise a genuine issue of material fact as to Defendants’ contention that no other allwheel drive E90 platform vehicle has caught fire due to a similar defect. In Slaba’s deposition he 

states that only 220,000 of the purported 1.8 million E-90 vehicles sold between 2004-2012 were 

all-wheel drive vehicles equipped with the stiffener plate. Further, Mr. Slaba has held his 

position in the BMW Product Analysis Department only since 2011, and during that time period 

he has become aware of 20-30 fires in BMW E-90 vehicles. Plaintiffs argue that many of those 

fires are unexplained, and could have been caused by the stiffener plate defect; thus, Slaba’s 

assertion that no such fire has ever occurred lacks proper foundation and is speculative. Further, 

they will cite to Keaton, Defendants’ expert, who stated in his deposition that deductive 

reasoning indicated to him that debris drawn into the vehicle through any openings will be forced 

down to the bottom portion of the vehicle, where the stiffener plate is located. (Doc. 81-7 at 74-

84). 

 The Court will begin the foreseeable risk analysis by addressing Plaintiffs’ contention 

that Defendants’ focus on the foreseeable risk is misplaced, and ignores that Plaintiffs can 

successfully pursue a design defect claim under the consumer expectation test alone. Before the 

2005 amendments, Ohio law provided Plaintiffs “with two theories upon which to recover: (1) 

the consumer expectation standard; and (2) the risk-benefit standard.” Acton v. Excel Indus., Inc., 

No. 2:08-CV-315, 2009 WL 1794559, at *4 (S.D. Ohio June 23, 2009). In 2005, however, an 

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amendment to OPLA removed the consumer expectation test as an independent theory of 

liability and made, “the extent to which the design or formulation is more dangerous than a 

reasonably prudent consumer would expect when used in an intended or reasonably foreseeable 

manner,” one of five factors to use when determining whether a foreseeable risk exists. See

O.R.C. § 2307.71 (B)(5); See Ruff v. Wal-Mart Stores E., LP, No. 2:07CV292, 2009 WL 

3150319, at *4 (S.D. Ohio Sept. 30, 2009) (Senate Bill 80, effective April 7, 2005, modified 

OPLA by removing the “consumer expectation” standard from R.C. § 2307(A)(2) to appear 

instead as a new subsection of § 2307.75(B)(5)). The question for this Court is whether proving 

the consumer expectation test, as it existed prior to the 2005 amendments, is sufficient alone to 

prove foreseeable risk under the current version of OPLA. 

 Plaintiffs do not present any cases that state definitively that under OPLA amendments, a 

Plaintiff can still pursue either a foreseeable risk analysis or a consumer expectation analysis in 

order to satisfy their burden of proving foreseeable risk under OPLA, § 2307.75 (B). Plaintiffs do 

cite, however, to Krumpelbeck v. Breg, Inc., 491 F. App'x 713 (6th Cir. 2012), a case which 

shows that the consumer expectation test remains a necessary consideration for imposing liability 

in design defect cases after the 2005 OPLA Amendment. 

 In that case, the district court had concluded that plaintiff’s design defect claim failed 

because there was no evidence that the defendant had a reason to know of the purported risk 

associated with product. Id. The appellate court found that the district court had erred in its 

foreseeable risk analysis under OPLA because it had completely ignored the consumer 

expectation test—the “primary basis” on which plaintiff argued the product was defectively 

designed. Id. The appellate court explained that the consumer expectation test focuses “not on 

the risks known to the manufacturer but the consumer's understanding and appreciation of the 

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dangers associated with use of the product;” thus, focusing on the foreseeability of the risk from 

the manufacturer’s perspective alone was insufficient under §2307.75(B). Id. The appellate court 

then held that: 

[b]ecause the district court did not discuss the statutory factors listed in § 

2307.75(B), including the consumer-expectation test, we find that it misapplied 

the law in determining the ‘foreseeable risks’ for the purposes of Krumpelbeck's 

claim for defective design. 

Id. 

 Defendants argue that Krumpelbeck’s holding weighs in their favor because it shows that 

the consumer protection test is only one of five factors in the foreseeability test. This Court 

agrees that Krumpelbeck shows that under the newer version of OPLA, the consumer expectation 

test is no longer a completely independent test in the same way it was under the prior version of 

OPLA. Instead, the Krumpelbeck court makes clear that the consumer expectation test is one of 

five nonexclusive considerations that the court should discuss when determining foreseeable risk. 

That being said, the appellate court in Krumpelbeck acknowledged that the consumer expectation 

test was plaintiff’s “primary basis” for arguing that foreseeable risk existed, and still went on to 

hold that the district court erred in its foreseeable risk analysis by failing to consider the 

consumer expectation test. This suggests that a genuine issue of material fact concerning the 

consumer expectation test is enough for the determination of foreseeable risk to go to the jury. 

 Further, § 2307.75(B) makes clear that “[t]he foreseeable risks associated with the design 

or formulation of a product shall be determined by considering factors including, but not limited 

to” the five factors listed in the statute. Thus, while OPLA directs Courts to consider the five 

factors, it contains no directive in how to weigh these factors. Accordingly, the holding in 

Krumpelbeck and the language of OPLA are both consistent with this Court’s holding that each 

factor under § 2307.75(B) must be considered, and that as long as a genuine issue of material 

fact exists as to any nonexclusive factor, the Court should find that whether a foreseeable risk 

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exists is a question for the jury. While a jury should properly be instructed to consider all 

nonexclusive factors when determining the existence of foreseeable risk, the ultimate weighing 

of those factors in determining foreseeable risk is a task for the jury, not the Court. 

 This Court’s holding is consistent with the Ohio rule that “the question of what an 

ordinary consumer expects in terms of the risks posed by the product is generally one for the trier 

of fact.” Donegal Mut. Ins. v. White Consol. Indus., Inc., 2006-Ohio-1586, ¶ 16. It is further 

consistent with the broader rule that summary judgment will rarely be granted in design-defect 

claims because questions of “[f]oreseeable uses of a product, foreseeable risks associated with a 

product, benefits associated with a product, and consumer expectations regarding a product's 

uses and risks are ordinarily all factual questions.” McWilliams v. S.E. Inc., No. 5:07CV3700, 

2009 WL 3625173, at *3 (N.D. Ohio Oct. 29, 2009) (citing Welch Sand & Gravel, Inc. v. O & K 

Trojan, Inc., 107 Ohio App.3d 218, 225, 668 N.E.2d 529 (1995)). 

 Because questions of foreseeable risk and benefits associated with a product are generally 

reserved for the jury, this Court declines to follow the rationale in Butts v. OMG, Inc., No. 1:11-

CV-918, 2014 WL 4628496, at *8-12 (S.D. Ohio Sept. 11, 2014), a case in which the Court, not 

the jury, weighed the five § 2307.75(B) foreseeable risk factors, and did not consider 

Krumpelbeck. In Butts, Plaintiffs argued that a caulking gun used to adhere insulation board to 

roofing substrates was defective as designed because it did not have proper safety mechanisms to 

protect users from getting their fingers caught in it should a blowback effect occur. Defendants 

argued that Plaintiff had not adduced sufficient facts showing risks of the product design 

outweighed its benefits, because, like the Plaintiffs in Krumpelbeck, they only addressed the 

consumer expectation factor of 2307.75(B), and had foregone any analysis of the other factors 

set out in §§ 2307.75(B) and (C). 

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 The Butts court agreed that the consumer expectation test favored the Plaintiff, noting 

that a reasonably prudent consumer could not expect to suffer a crushing hand injury during the 

normal use of the product. Id. at *10. Although the consumer expectation factor favored the 

Plaintiff, however, the Butts court found that the “remaining factors in Subsections B and C 

either favor[d] Defendants, [were] neutral, or [had] no applicability.” Id. In other words, 

according to the Court in Butts, reliance on the consumer expectation test alone did not meet the 

§ 2307.75(B) standard for establishing a genuine issue of material fact as to foreseeable risk 

under the facts of that case. After analyzing why each of the remaining factors weighed in favor 

of the Plaintiffs, the Butts Court ultimately granted summary judgment to Defendant because 

“the balance of the § 2307.75(B) factors indicate[d] that there was not a foreseeable risk of a 

blowback event with the design of the SpotShot Applicator and OlyBond 500 at the time of 

Plaintiff's accident.” Id. 

 This Court disagrees with Butt’s that the Court’s proper role is to weigh the nonexclusive 

foreseeable risk factors under § 2307.75(B) on summary judgment. Although the consumer 

expectation test is no longer an independent test, neither Krumpelbeck nor the language of § 

2307.75(B) indicates that the Court’s role is to weigh the foreseeable risk factors. As stated 

above, unless no genuine issue of material fact exists as to any factor under § 2307.75(B)—

which would be rare considering the fact-intensive nature of the factors and a design defect 

claim—summary judgment on the basis of failure to prove foreseeable risk will generally be 

inappropriate. 

 In light of this Court’s interpretation of Krumpelbeck and § 2307.75(B), this Court will 

address each nonexclusive factor to determine whether genuine issues of material fact exist. As 

to (B)(1), and (B)(3)—“the nature and magnitude of the risks of harm associated with that 

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design,” and the “likelihood that that design or formulation would cause harm” in light of the 

intended and reasonably foreseeable uses of the product—this Court finds that there are genuine 

issues of material fact precluding summary judgment. While Defendants will present evidence 

suggesting that no similar debris fires on the stiffener plate have ever occurred in 1.8 million E90 

platform BMWs, Plaintiffs will present evidence undermining the foundation and credibility of 

such evidence including: Slaba’s testimony that only 220,000 of the purported 1.8 million E90 

vehicles sold between 2004-2012 were all-wheel drive vehicles equipped with the stiffener plate, 

and that since Slaba began at BMW in 2011, he has become aware of 20-30 fires in BMW E90 

vehicles, many of which are unexplained. In addition, genuine issues of material fact exist as to 

the likelihood that debris can enter the engine compartment during the normal use of the vehicle, 

thus leading to a fire on the stiffener plate. While Defendants will present evidence the debris 

accumulation on the stiffener only could have been caused by a rodent, Plaintiffs will present 

expert testimony that debris can enter the engine compartment and rest on the stiffener plate 

during normal use of the vehicle. The weight and credibility of such evidence is not for this 

Court to determine. As such, the likelihood that the stiffener plate would cause a fire, and the 

magnitude of the risk of fire, both present genuine issues of material fact. 

 Factor (B)(2)—the likely awareness of product users, whether based on warnings, general 

knowledge, or otherwise, of those risks of harm—is not applicable in this case. The record shows 

that the Patricks used and operated their vehicle normally, and no adjustment in their use of the 

vehicle would have prevented the vehicle fire in this case either under Plaintiffs’ or Defendants’ 

theory of causation. As such, no change in awareness or warning related to the risk of fire would 

have modified the Patrick’s behavior in this case, short of warning them not to use the vehicle at 

all. 

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 Factor (B)(4)—the extent to which the design of the stiffener plate conformed to any 

applicable public or private product standard that was in effect when the vehicle left the control 

of BMW AB—also presents a genuine issue of material fact. Defendants argue that Plaintiffs 

present no evidence showing that the holes in the stiffener plates of the two-wheel drive BMW 

were intended to be used for self-cleaning. Plaintiffs respond that other stiffener plates on the 

market when the vehicle was designed, including those on the two-wheel drive E90 BMWs, used 

the allegedly safer, “self-cleaning” design, and that this design would have avoided the fire. This 

Court acknowledges that outside of showing other vehicles with the “self-cleaning” stiffener 

plate, Plaintiffs do not present any other evidence regarding vehicle standards as they relate to 

debris collection in the engine compartment and stiffener plate design. It is not for the Court to 

weigh the persuasive value of Plaintiffs’ evidence, however, but only to find that it is a material 

fact for the jury. 

 Finally, as to (B)(5)—the extent to which the design or formulation of the stiffener plate 

is more dangerous than a reasonably prudent consumer would expect when used in an intended 

or reasonably foreseeable manner—also presents a genuine issue of material fact. Plaintiffs argue 

that a prudent consumer would not expect her properly maintained car to catch on fire during 

normal use due to the normal accumulation of debris in the engine compartment. Defendants 

contend that this factor is not significant because the situation which allegedly led to the fire—a 

rodent nesting in the engine compartment—is not a foreseeable occurrence, and thus beyond the 

control of the manufacturer. While the jury may ultimately find that other foreseeable risk factors 

weigh against relying on the consumer expectation test to establish foreseeable risk, this 

balancing is left to the trier of fact. 

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 In sum, genuine issues of material fact exist as to the foreseeable risks associated with the 

design or formulation of the stiffener plate. 

iii. Risk/Benefit Analysis 

Next, Defendants argue that even if Plaintiffs can show a “foreseeable risk” existed in the 

vehicle, no reasonable juror could find that the foreseeable risks associated with the vehicle’s 

design exceeded the benefits associated with that design. A non-exclusive list of factors to 

consider when determining the benefits of the stiffener plate as designed includes: “the product’s 

utility, including performance or safety advantages; the technical and economic feasibility of 

using an alternative design; and the nature and magnitude of any foreseeable risks associated 

with an alternative design.” Clay v. Ford Motor Co., 215 F.3d 663, 670 (6th Cir. 2000) (citing 

Ohio Rev.Code Ann. § 2307.75(C)). 

 Slaba’s Deposition puts forth the benefits of the stiffener plate as designed, including that 

it: (1) strengthens the vehicle’s front axle; (2) reduces drag by guiding airflow underneath the 

vehicle, playing a significant role in the vehicle’s aerodynamic characteristics and reducing fuel 

consumption; (3) reduces vehicle emissions by allowing catalytic converters to reach operating 

temperatures more quickly; (4) allows the car to retain heat during breaks in operation so it can 

heat the passenger compartment more quickly; (5) shields the engine from fluid, spray, and 

grime; and (6) reduces noise emissions. Defendants argue that Plaintiffs’ alternative design—

placing holes in the stiffener plate—would reduce these benefits, although it is unclear from the 

record by how much. In sum, Defendants argue that no reasonable juror could find such a 

miniscule risk of fire—one out of 1.8 million vehicles, or even 220,000 vehicles on Plaintiffs’ 

count—outweighs these substantial benefits in fuel economy and aerodynamics. 

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 When assessing all three factors under § 2307.75(C), genuine issues of material fact exist 

regarding the benefits of the stiffener plate as designed. As to the first factor, Defendants argue 

that the stiffener plate as designed clearly has performance advantages, but they do not present 

any evidence of safety advantages. Plaintiffs respond, and Clarke states in his expert report, that 

the risk of fire presented by a stiffener plate without holes clearly outweighs any performance 

gains derived from it. As such, although Plaintiffs do not present any opinion or evidence as to 

how his alternative design will affect some performance advantages, it is for the jury to balance 

the design versus safety advantages of the alternative design. 

 As to factors two and three, Plaintiffs presented an alternative design, which is a stiffener 

plate with holes to allow self-cleaning. Plaintiffs contend that this alternative design would have 

remedied the engine fire, regardless of how debris entered the area of the stiffener plate in the 

first place. Although Clarke admits in his deposition that his alternative stiffener plate is 

“primitive,” and would require an engineer’s touch to reach full implementation, Clarke 

manufactured it as a conceptual example. Clarke also presents evidence, which is not 

controverted, that the newer version of the subject vehicle, the F-30 platform, has stiffener plates 

with holes. The shortcoming of Clarke’s alternative design is that he presents no testing or 

evidence that his design would have remedied a similar fire, or that the newer version of the 

stiffener plate with holes, currently in use by BMW, was intended to promote self-cleaning or 

actually does. Neither does Clarke present research concerning stiffener plate design. 

 This Court agrees with Plaintiffs, however, that weighing the foreseeable risks of the 

stiffener plate against the benefits of the stiffener plate as designed is a factual issue for the jury, 

precluding summary judgment. Clay at 671 (holding that as reasonable minds could differ about 

a risk versus benefits analysis in a vehicle’s design, the issue should go to the jury). As such, 

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whether the benefits of the stiffener plate as designed outweighs any foreseeable risks presents a 

genuine issue of material fact. 

iv. Alternative Design Analysis 

Pre-2005 Amendments to OPLA, the law was clear that it was the plaintiff’s burden to 

prove that a practical and technically feasible alternative design existed that would have 

prevented the harm for which the claimant seeks to recover without substantially impairing the 

usefulness or intended purpose of the product. Gist v. GMC, 2005 U.S. App. LEXIS 6443 (6th 

Cir. Apr. 12, 2005). Post-2005 Amendments, OPLA states that a product is “not defective in 

design” if there was no “practical and technically feasible alternative design ... that would have 

prevented the harm for which the claimant seeks to recover ... without substantially impairing 

the usefulness or intended purpose of the product.” Ohio Rev.Code § 2307.75(F) (emphasis 

added). “Although this subsection does not state that it is a plaintiff's burden to prove an 

alternative design, the Sixth Circuit has so held.” Monroe v. Novartis Pharm. Corp., No. 1:12-

CV-00746 WOB, 2014 WL 3378345, at *7 (S.D. Ohio July 10, 2014) (relying on McGrath v. 

Gen. Motors Corp., 26 Fed.Appx. 506, 510 (6th Cir.2002) (“[Plaintiff]'s argument that he is not 

required to provide such evidence is therefore without merit.”); Jacobs v. E.I. du Pont de 

Nemours & Co., 67 F.3d 1219, 1242 (6th Cir.1995).” Defendants argue that while Plaintiffs have 

offered an alternative design—specifically a stiffener plate with holes that Clarke produced—

Plaintiffs have not offered a practical and technically feasible alternative design because: (1) 

Clarke performed no testing on his design to show it was feasible; and (2) Clarke’s design 

diminishes some benefits of the stiffener plate and ignores others. 

 As noted above, newer models of the subject vehicle have stiffener plates with holes. 

Defendants argue that the newer vehicle is a total redesign, however, and, as such, Plaintiffs 

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cannot show how a stiffener plate with holes would affect the feasibility of the E90 BMW. On 

the other hand, even if the Court were to accept that the alternative version of the stiffener plate 

will diminish all of the benefits of the current stiffener plate, those benefits have little to do with 

the central purpose of a vehicle: to transport people safely from place to place. Plaintiffs argue 

that the stiffener plate with holes prevents a serious safety hazard, and a reasonable juror could 

agree that the stiffener plate with holes does not substantially impair the usefulness or intended 

purpose of the vehicle. This is so even without evidence of testing showing exactly how the 

alternative design diminishes the performance benefits of the stiffener plate. As Plaintiffs have 

presented an alternative design, it is a question for the jury whether such a design is practical, 

technically feasible, and substantially impairs the usefulness or intended purpose of the vehicle. 

In sum, genuine issues of material fact exist regarding whether the vehicle was defective 

in design due to the position and design of the stiffener plate. Thus, Defendants’ Motion for 

Summary Judgment as to Count III is hereby DENIED. 

4. Count II: Product Liability Claim against BMW NA 

Under OPLA, a “supplier” can be held liable for a design defect either directly under 

O.R.C. section 2307.78(A), or indirectly, under O.R.C. section 2307.78(B). Where, as here, 

Plaintiffs claim that the supplier, BMW NA, is indirectly liable, Plaintiffs must show that: (1) the 

manufacturer, BMW AG, is liable under O.R.C. Sections 2307.71-77, and; (2) one of the eight 

conditions of derivative liability under O.R.C. § 2307.78(B) applies to BMW NA. This Court 

already determined in Section (III)(C)(3) supra that genuine issues of material fact preclude 

summary judgment on Plaintiffs’ product liability claims against the manufacturer, BMW AG. 

Thus, under the first prong of the derivative liability analysis, summary judgment is not proper 

on Plaintiff’s product liability claim against the supplier, BMW NA. 

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 As to the second prong of the derivative liability analysis, Plaintiffs concede that the 

only potentially applicable provision for derivative liability that applies to BMW NA is that “the 

supplier in question is owned or, when it supplied that product, was owned, in whole or in part, 

by the manufacturer of that product.” O.R.C. § 2307.78(B)(4). In their briefs, Defendants argued 

that Defendant BMW NA should be dismissed because Plaintiffs cannot make a showing that 

(B)(4) applies to BMW NA. At the time of their motion, only two witnesses with knowledge 

concerning the corporate structure of BMW AG or BMW NA have testified, Mark Yeldham and 

Thomas Slaba, and neither testified that BMW NA has ever owned BMW AG or vice versa. 

Plaintiffs had otherwise not adduced evidence creating a genuine issue of material fact 

concerning BMW AG’s ownership of BMW NA. 

During oral argument on this Motion, however, the Court confirmed that Defendants had 

failed to file a corporate disclosure statement at the time of filing their first response to Plaintiffs’ 

Complaint, as required by Fed. R. Civ. P. 7.1. Accordingly, Defendants filed their Rule 7.1 

Defendant BMW NA’s Corporate Disclosure Statement immediately after oral argument. (Doc. 

98). In the document, BMW states that it “is an indirect, wholly owned subsidiary of 

Bayerishche Motoren Werke AG. No single publicly held corporation owns 10% or more of 

BMW NA’s outstanding shares.” Accordingly, O.R.C. § 2307.78(B)(4) applies to BMW AG 

because the supplier, BMW NA, is owned in whole by the manufacturer of the vehicle, BMW 

AG. Thus, BMW NA meets the second prong of derivative liability analysis by showing that one 

factor under § 2307.78(B)(4) applies. 

Thus, as a genuine issue of material fact exists as to the first prong of the derivative 

liability analysis, and Plaintiffs have shown that the second prong of the analysis is satisfied, 

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Defendants’ Motion for Summary Judgment as to Count II, product liability against BMW NA, 

is hereby DENIED. 

IV. CONCLUSION 

In Conclusion, Defendants’ Motion for Summary Judgment as to Counts II, III, and IV in 

the Plaintiffs’ Complaint is hereby DENIED in full. 

IT IS SO ORDERED. 

 /s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: February 4, 2015 

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