— A BMW clogged sunroof drain lawsuit that was almost down the legal drain has new life as the judge ruled BMW must respond to discovery requests sought by the plaintiff.
Plaintiff George Catalano filed the BMW lawsuit in June 2015 alleging the automaker concealed safety defects in 2000-2008 BMW X5 Series, 2004-2010 X3 Series and 2004-2010 5 Series cars.
Catalano claims the BMW vehicles are defective because electronic components are located in trunk and cargo areas that make them prone to damage and failure due to water exposure. Additional problems are caused by sunroof drainage tubes that are prone to clogging and rupturing which causes water to invade areas of the trunk.
The plaintiff says he was driving his 2007 BMW 530xi when he received a warning of complete electrical failure before the BMW shut down on a busy highway. He found two inches of water in the trunk where the spare tire is located where water had entered the area from clogged sunroof drain tubes.
Catalano says the damage should have been covered under the pre-owned warranty but BMW denied coverage, leaving the plaintiff with a $2,000 repair bill to fix the electronics.
Catalano says owners would not have purchased the vehicles if BMW would have admitted what the drain tubes could do to the electronics and that those electronics were installed in an area of the cars susceptible to water intrusion.
The lawsuit looked to be failing when in March 2016, Judge Katherine B. Forrest dismissed all but one claim made by the plaintiff and said the other claims were dismissed based on a failure to show evidence for the claims, and based on the statute of limitations.
The judge said there was nothing in the lawsuit to prove defects were caused by problems with BMW's manufacturing process. Without that proof, any claim of a manufacturing defect wasn't sufficient to show failures of express warranty claims.
However, the judge said she would allow the plaintiff to amend the complaint concerning the claim against BMW of fraudulent concealment saying the claim would be a "relatively close call.”
The judge was correct because the lawsuit was amended and Forrest said the claim of fraudulent concealment will stand. The judge also said it's appropriate to require BMW to provide discovery through the Federal Rules of Civil Procedure.
However, the judge said Catalano's fifty-five document requests are excessive and overbroad, especially since the documents are located in Germany. The judge will not grant discovery as broad as if Catalano were seeking documents and information located in the United States from a domestic party.
On the other hand, the judge ruled BMW must understand the court will not hesitate to impose discovery obligations on it to the extent necessary and appropriate in this case.
The judge said BMW's motion to dismiss is denied and the plaintiff's motion to compel BMW to respond to discovery requests is granted in part.
Although BMW wanted the case dismissed, it will proceed based on claims of deceptive business practices and fraudulent concealment.
The BMW clogged sunroof drain lawsuit was filed in the U.S. District Court for the Southern District of New York - George Catalano v. BMW of North America LLC.
The plaintiff is represented by the Law Offices of Joseph R. Santoli, Law Office of Robert L. Starr, Kershaw, Cutter & Ratinoff LLP, Wexler Wallace LLP, and the Law Offices of Stephen M. Harris, P.C.
