        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1127
CA 15-00771
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


DAVID SMALLEY AND JUDITH SMALLEY,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

HARLEY-DAVIDSON MOTOR COMPANY GROUP LLC,
AND STAN’S HARLEY-DAVIDSON, INC.,
DEFENDANTS-RESPONDENTS.


LADUCA LAW FIRM, ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

QUARLES & BRADY LLP, MILWAUKEE, WISCONSIN (LARS E. GULBRANDSEN, OF THE
WISCONSIN BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND HARTER SECREST
& EMERY LLP, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.


      Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered July 28, 2014. The order, among other things,
granted defendants’ motion seeking an order confirming that certain
prior evidentiary rulings made by the court constitute the law of the
case.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of defendants’
motion seeking to preclude the expert testimony and evidence of
customer complaints to the extent such evidence is relevant to
defendants’ continuing duty to warn, and as modified the order is
affirmed without costs in accordance with the following memorandum:
In this products liability case, plaintiffs appeal from an order that,
among other things, granted defendants’ motion to preclude plaintiffs
from introducing certain expert testimony of an electrical engineer
and evidence of certain customer complaints at trial. Plaintiffs, who
were injured when their motorcycle allegedly lost electrical power
while they were riding it, sought to introduce the expert testimony to
demonstrate that their motorcycle suffered from the same defect as
motorcycles recalled by Harley-Davidson Motor Company Group LLC
(defendant) in 2004. According to defendant’s recall notice, the
defect could cause the motorcycles to experience a loss of electrical
power while being driven, known as a “quit while riding” event.
Plaintiffs sought to introduce the evidence of customer complaints to
demonstrate that defendant had notice of “quit while riding” events
experienced by owners of motorcycles similar to plaintiffs’ motorcycle
prior to plaintiffs’ accident, and thus that defendant had notice of
the defect from which their motorcycle allegedly suffered.
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                                                         CA 15-00771

     At trial in 2013, Supreme Court granted in part defendants’
motions in limine by precluding evidence of the customer complaints to
the extent that such complaints did not relate to “quit while riding”
events involving the same 1999 motorcycle model that was involved in
plaintiffs’ accident; precluding plaintiffs from presenting evidence
relating to defendant’s 2004 recall through the testimony of their
accident reconstruction expert; and precluding plaintiffs from
presenting certain expert testimony, including the testimony of their
electrical engineer expert, on the ground that it was untimely
disclosed. On appeal from the latter ruling, we held, inter alia,
that the court erred in precluding the testimony of plaintiffs’
electrical engineer expert on untimeliness grounds, and that the court
instead should have adjourned the trial (Smalley v Harley-Davidson
Motor Co., Inc., 115 AD3d 1369, 1370).

     Following a mistrial and our decision regarding the testimony of
plaintiffs’ electrical engineer expert, defendants moved for an order
confirming, as “law of the case,” the court’s prior rulings granting
in part defendants’ motions in limine with respect to the evidence
concerning defendant’s 2004 recall, which plaintiffs sought to
introduce through their electrical engineer expert, and the evidence
of customer complaints. In the alternative, the motion sought an
order granting defendants’ motions in limine with respect to that
evidence. The court granted the motion, precluding plaintiffs from
introducing evidence of the recall through their expert, and
precluding plaintiffs from introducing any customer complaints that do
not relate to “quit while riding events” involving the exact same 1999
model of defendant’s motorcycle that plaintiffs were riding at the
time of their accident.

     Even assuming, arguendo, that defendants are correct that the
court was bound to adhere to its prior rulings by “law of the case,”
we note that “this Court is not bound by the doctrine of law of the
case, and may make its own determinations” whether the evidence at
issue is admissible (Ramanathan v Aharon, 109 AD3d 529, 531; see
generally Martin v City of Cohoes, 37 NY2d 162, 165).

     On the merits, we 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” (Cover v Cohen, 61 NY2d 261, 274-275). “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
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                                                         CA 15-00771

that issue has been made will, of course, depend on the facts of each
case” (id. at 275-276).

     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” (Bolm v Triumph Corp., 71
AD2d 429, 438-439, lv dismissed 50 NY2d 801, 928), and the fact that
the expert has done no testing goes to the weight to be given to his
testimony, not its admissibility (see e.g. Di Carlo v Ford Motor Co.,
77 AD2d 643, 644).

     In addition, to the extent that the evidence of customer
complaints that plaintiffs seek to introduce concerns accidents prior
to April 30, 2004 involving “quit while riding” events that “were, in
their relevant details and circumstances, substantially similar to the
subject accident” (White v Timberjack, 209 AD2d 968, 969), that
evidence is also relevant to defendants’ duty to warn. Thus,
plaintiffs should be allowed the opportunity to demonstrate that the
customer complaints they seek to introduce are admissible because they
involve motorcycles sufficiently similar to theirs and accidents
sufficiently similar to the subject accident, even if the motorcycles
that are the subject of those complaints are not identical in model
and year of manufacture to plaintiffs’ motorcycle. Contrary to
defendants’ contention, those customer complaints are not
impermissible hearsay. They are not being offered for the truth of
the factual assertions therein, but, rather, they are being offered as
evidence that the statements in those complaints were in fact made,
and that defendants had notice of them (see generally Stern v
Waldbaum, Inc., 234 AD2d 534, 535).

     Plaintiffs further contend that we should address the
admissibility of the document untimely disclosed by defendants, and
determine “in the interest of judicial economy” that the document is
inadmissible. Because the court granted plaintiffs’ cross motion to
preclude that document, plaintiffs are not aggrieved, and their
contention concerning the admissibility of the document is not before
us (see generally CPLR 5511). Finally, contrary to plaintiffs’
contention, nothing in the record raises a “reasonable concern about
the court’s appearance of impartiality” (R&R Capital LLC v Merritt, 78
AD3d 533, 534, lv dismissed 17 NY3d 769), and we therefore see no
reason to direct that the matter be reassigned to another Justice.
Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
