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EXPERT EVIDENCE OF A RECALL AND EVIDENCE OF CUSTOMER COMPLAINTS ABOUT DEFENDANTS’ MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN.

The Fourth Department, eliminating restrictions on the evidence imposed by Supreme Court, determined evidence from plaintiffs’ electrical expert and evidence of customer complaints were relevant to defendants’ duty to warn. Plaintiffs alleged an electrical defect in their motorcycle (manufactured by defendants) caused the accident. Plaintiffs sought to introduce evidence of a recall made prior to the accident and evidence of customer complaints:

… [W]e conclude that the court erred in granting that part of defendants’ motion seeking to preclude the testimony of plaintiffs’ electrical engineer expert and the customer complaints to the extent that such evidence is relevant to defendants’ continuing duty to warn. We therefore modify the order accordingly. “A manufacturer or retailer may . . . incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale . . . through being made aware of later accidents involving dangers in the product of which warning should be given to users . . . Although a product [may] be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn” … . “What notice . . . will trigger [this] postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported . . . [Whether] a prima facie case on that issue has been made will, of course, depend on the facts of each case” … .

Defendant’s recall was first issued in March 2004, prior to plaintiffs’ accident on April 30, 2004. A determination that plaintiffs’ motorcycle should have been included in the recall would be relevant to defendants’ duty to warn plaintiffs of the defect that, plaintiffs allege, caused a “quit while riding” event in their motorcycle and thereby caused or contributed to their accident. Plaintiffs’ expert, an electrical engineer, expects to testify in part that plaintiffs’ motorcycle does not differ in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’ motorcycle did not have the same stator as the motorcycles affected by the recall. In our view, the expert’s qualifications as an electrical engineer qualify him to opine whether the motorcycles “were the same in all significant respects” … , and the fact that the expert has done no testing goes to the weight to be given to his testimony, not its admissibility … . Smalley v Harley-Davidson Motor Co. Group LLC, 2015 NY Slip Op 09712, 4th Dept 12-31-15

NEGLIGENCE (PRODUCTS LIABILITY, EVIDENDE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/PRODUCTS LIABILITY (EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/DUTY TO WARN (PRODUCTS LIABILITY, EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)

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