Fischer v. BMW ( 2021 )

Appellate Case: 20-1399 Document: 010110609077 Date Filed: 11/23/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 23, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
RONNIE FISCHER, individually,
Plaintiff - Appellant,
No. 20-1399
v. (D.C. No. 1:18-CV-00120-PAB-MEH)
(D. Colorado)
BMW OF NORTH AMERICA, LLC, a
Delaware company,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Plaintiff-appellant Ronnie Fischer1 was injured while changing the front tire of a
vehicle manufactured by Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”), a
parent corporation of defendant-appellee BMW of North America, L.L.C. (“BMW”).
Mr. Fischer sued BMW, alleging products liability, negligence, and breach of warranty
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Mr. Fischer represented himself before the district court and continues to do so
on appeal. He is a licensed attorney, however, so his pleadings are not entitled to a liberal
construction. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (“While we are
generally obliged to construe pro se pleadings liberally, we decline to do so here because
Smith is a licensed attorney.” (citations omitted)).
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claims. Mr. Fischer designated Dr. Aaron Lalley, a licensed professional mechanical
engineer, as his liability expert. BMW moved to exclude several of Dr. Lalley’s opinions.
After granting the motion to exclude, the district court granted BMW’s motion for
summary judgment on all of Mr. Fischer’s claims. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In January 2016, Mr. Fischer attempted to change a flat tire on a 2003 BMW
sedan in Denver, Colorado. Mr. Fischer had reviewed the portions of the vehicle’s
owner’s manual that provided instructions for changing the vehicle’s tires. Based on the
manual, he understood he was to place the vehicle in park and apply the parking brake.
Then, he was to place the jack that came with the vehicle into the integrated jacking
point. Mr. Fischer believes he followed these instructions as he used the jack to raise the
front-right portion of the vehicle. Mr. Fischer then removed the flat tire and placed the
spare tire on the wheel hub. While he was tightening the lug bolt on the spare tire, the
vehicle fell off the jack. The vehicle suddenly dropped down and pinned his middle
finger between the asphalt and the lug wrench, crushing and severing a portion of his
finger.
Mr. Fischer sued BMW, alleging products liability, negligence, and breach of
warranty claims. After Mr. Fischer designated Dr. Lalley as his liability expert, BMW
moved under Federal Rule of Evidence 702 to exclude several of Dr. Lalley’s opinions.
Three of these disputed opinions are at issue in this appeal. First, Dr. Lalley stated the
BMW jack had a design defect that rendered it unstable compared to other jacks (the
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“Instability Opinion”). Second, Dr. Lalley believed the design defect caused the jack to
fail and the vehicle to fall, injuring Mr. Fischer (the “Causation Opinion”). Third,
Dr. Lalley surmised BMW’s jack designers compromised safety in the interest of cost
reduction or space requirements (the “Intent Opinion”).
The United States District Court for the District of Colorado granted BMW’s
motion to exclude these opinions. BMW then moved for summary judgment, arguing
Mr. Fischer could not succeed on any of his claims given the inadmissibility of
Dr. Lalley’s expert testimony. In resolving BMW’s motion, the district court explained
that “[e]ach of [Mr. Fischer’s] claims—strict liability, negligence, and breach of
warranties—requires [him] to prove a design defect.” App. Vol. 4 at 68. “Because
[Mr. Fischer’s] sole liability expert’s opinions concerning a design defect have been
excluded,” and because Mr. Fischer “fail[ed] to identify any other evidence which might
support a finding of a design defect,” the district court held Mr. Fischer lacked evidence
on an essential element of his claims and could not survive BMW’s summary judgment
motion. Id. at 69. The district court then granted BMW’s motion. Mr. Fischer appealed.
II. DISCUSSION
On appeal, Mr. Fischer argues the district court (1) failed to perform its
gatekeeping function, as required under Federal Rule of Evidence 702; (2) abused its
discretion in excluding three of Dr. Lalley’s disputed opinions; and (3) erred in granting
BMW summary judgment because the district court’s summary judgment decision was
premised on its improper exclusion of Dr. Lalley’s opinions. We turn to these issues now.
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A. Gatekeeping Analysis
An expert witness must be qualified by “knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702(a). Further, the expert’s testimony must be helpful to the
trier of fact, “based on sufficient facts,” and the result of “reliable principles and
methods.” Id. 702(b). Accordingly, district courts have a “gatekeeper obligation” to
ensure all expert testimony admitted is both relevant and reliable. Schulenberg v. BNSF
Ry. Co., 911 F.3d 1276, 1282 (10th Cir. 2018); Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 593–95 (1993).
We review de novo “whether the district court actually performed its gatekeeper
role in the first instance.” Schulenberg, 911 F.3d at 1282 (quotation marks omitted). To
do so, we look to “whether the district court carefully and meticulously review[ed] the
proffered scientific evidence or simply made an off-the-cuff decision to admit the expert
testimony.” Goebel v. Denver & Rio Grande W. Ry. Co., 215 F.3d 1083, 1088 (10th Cir.
2000) (alteration in original) (quotation marks omitted). Thus, to perform its gatekeeping
role, the district court must make specific findings on the record so that this court can
determine if it carefully reviewed the objected-to expert testimony under the correct
standards. Adamscheck v. Am. Fam. Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016).
The district court satisfied its obligations here. In its seventeen-page decision, the
district court: thoroughly evaluated Dr. Lalley’s report; set forth the relevant standards
under Rule 702 and Daubert that governed its analysis; applied these standards to
evaluate Dr. Lalley’s methodology and qualifications with respect to the opinions BMW
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sought to exclude; and provided clear and abundant support for its decision to exclude
these opinions.
Mr. Fischer disagrees, arguing the district court did not perform its gatekeeping
function because it failed to “fully consider the record.” Aplt. Br. at 9. He takes specific
issue with the court excluding the Instability Opinion after finding it was not based on
sufficient facts. We first describe the methodology underlying Dr. Lalley’s Instability
Opinion before affirming the district court’s decision to exclude it.
In his expert report, Dr. Lalley opined that the “primary flaw” in BMW’s jack
design is that “[t]he force and displacement required” for the jack to tip over “is
approximately half of typical designs.” App. Vol. 1 at 30. The report includes a chart
showing a “[c]omparison of calculated tipping force” between the BMW jack and the
jacks associated with Pontiac and Ford vehicles. Id. at 34. According to this chart, the
lateral force required to tip over the BMW jack is 121.1 pounds, whereas the force
required to tip over the Pontiac and Ford jacks is 292.3 pounds and 209.6 pounds,
respectively.
Dr. Lalley derives these figures from a formula he claims measures the force
required to tip a jack. He states: “resistance to tipping is a torque calculated by
multiplying the weight of the vehicle that is supported by the jack and the effective lever
arm upon which the force is acting. The effective lever arm is one half of the jack base
width plus one half of the platform width.” Id. at 32. He also states “[t]he torque upon the
jack that is causing the jack to tip can be calculated similarly. The effective lever arm
causing the jack to tip is the total height of the jack. . . . The critical point for tipping is
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the point at which the torque causing rotation equals the torque resisting rotation.” Id.Dr. Lalley estimated the weight on the respective jack to be 1,000 pounds. The district
court excluded the Instability Opinion after noting that Dr. Lalley “does not explain . . .
figures [used in his formula] – e.g., the ‘[e]stimated weight on jack’ of 1,000 pounds.”
App. Vol. 4 at 51 (alteration in original) (quoting App. Vol. 1 at 34).
Mr. Fischer claims the factual basis for Dr. Lalley’s use of 1,000 pounds was
contained elsewhere in the record and was understood by the parties “to be representative
of one-fourth of the weight of the car.”2 Aplt. Br. at 10. But even if true, a district court
satisfies its gatekeeping function when it “carefully and meticulously review[s] the
proffered scientific evidence [rather than] simply ma[king] an off-the-cuff decision to
admit the expert testimony.” Goebel, 215 F.3d at 1088 (emphasis added). That is, a
district court must carefully examine the expert opinion being proffered to determine
whether it is admissible under Rule 702. A district court is not obligated to scour the
entire record to try to make sense of the expert opinion.
Here, the district court correctly observed that Dr. Lalley’s report used a formula
involving 1,000 pounds as the estimated weight on the jack, and that the report failed to
explain from where Dr. Lalley drew that number. See App. Vol. 1 at 34 (using 1,000
pounds as the estimated weight on the jack); see generally id. at 30–41 (entire expert
2
In support, Mr. Fischer cites (1) his response before the district court in
opposition to BMW’s motion to exclude, which acknowledges Dr. Lalley used 4,000
pounds for the vehicle’s weight; and (2) BMW’s rebuttal expert’s report, which states
“Dr. Lalley uses an estimated weight on the jack of 1,000 lbs., or one-fourth of an
estimated 4,000 lbs. vehicle weight.” App. Vol. 1 at 146.
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report, in which 1,000-pound figure is never explained). Nowhere does Dr. Lalley’s
expert report mention that he uses 4,000 pounds as the estimated weight of the entire
vehicle, and his rebuttal report also fails to provide clarity on this point. Nor does the
parties’ apparent understanding of this figure salvage Mr. Fischer’s argument. The
district court’s gatekeeping function requires it to assure itself that Dr. Lalley’s report was
admissible under Rule 702, and the court was unable to do so based on the reports before
it. We are therefore satisfied the district court fulfilled its gatekeeping responsibility.
B. Exclusion Analysis
If “the district court fulfilled its gatekeeping responsibility, [w]e then review the
trial court’s actual application of the standard in deciding whether to admit or exclude an
expert’s testimony for abuse of discretion.” Schulenberg, 911 F.3d at 1282 (alteration in
original) (quotation marks omitted). “We must afford substantial deference to the district
court’s application of Daubert.” Etherton v. Owners Ins. Co., 829 F.3d 1209, 1216 (10th
Cir. 2016) (emphasis in original) (internal quotation marks omitted). “The trial court’s
broad discretion applies both in deciding how to assess an expert’s reliability, including
what procedures to utilize in making that assessment, as well as in making the ultimate
determination of reliability.” Id. “We reverse only if the district court’s conclusion is
arbitrary, capricious, whimsical or manifestly unreasonable or when we are convinced
that the district court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” United States v. Avitia-Guillen, 680 F.3d 1253,
1256 (10th Cir. 2012) (internal quotation marks omitted). Mr. Fischer argues the district
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court abused its discretion by excluding the Instability, Causation, and Intent Opinions.
We turn to these now.
Instability Opinion
The district court excluded the Instability Opinion because (1) Dr. Lalley failed to
explain the figures he used in applying his tipping-force formula—specifically, the
estimated weight variable, discussed supra; and (2) Dr. Lalley did “not establish that his
formula constitutes a reliable methodology for determining the tipping point.” App. Vol.
4 at 51. We affirm the first point for the same reason Mr. Fischer’s gatekeeping argument
fails; Dr. Lalley’s report did not explain the source of his estimated weight variable. The
district court was therefore unable to conclude for itself that the Instability Opinion was
factually supported, meaning its decision to exclude the opinion was not arbitrary or
manifestly unreasonable. See Avitia-Guillen, 680 F.3d at 1256.
We also affirm the district court’s second point. The district court must evaluate
proffered expert opinions for reliability, which “calls for a ‘preliminary assessment of
whether [1] the reasoning or methodology underlying the testimony is scientifically valid
and . . . [2] that reasoning or methodology properly can be applied to the facts in issue.’”
Etherton, 829 F.3d at 1217 (quoting Daubert, 509 U.S. at 592–93). The Supreme Court in
Daubert set forth a checklist for trial courts to consider when assessing the reliability of
scientific expert testimony. The five factors are: (1) whether the expert’s technique or
theory can be or has been tested; (2) whether the technique or theory has been subject to
peer review and publication; (3) the known or potential rate of error of the technique or
theory when applied; (4) the existence and maintenance of standards and controls; and
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(5) whether the technique or theory has been generally accepted in the scientific
community. Daubert, 509 U.S. at 593–95. These factors are non-exclusive, and the
district court may therefore properly consider other relevant information. See id. at 593(“Many factors will bear on the inquiry, and we do not presume to set out a definitive
checklist or test.”).
Here, Dr. Lalley’s methodology lacks indicia of reliability. Dr. Lalley provides no
evidence that his tipping-force formula is scientifically valid. Indeed, the district court
observed that Dr. Lalley “cite[d] no independent information that his formula is
appropriate for measuring the stability of car jacks, is standard or accepted by experts in
the automotive industry, or has any reliable, scientific basis as applied to jacks of this
type”. App. Vol. 4 at 51. Dr. Lalley also cites nothing to show that his formula was
peer-reviewed or published, has a low error rate, or satisfies any of the relevant factors
set forth in Daubert.3 Further, Dr. Lalley did not test to confirm his predicted results or
otherwise demonstrate the reliability of his calculations. Although the district court
acknowledged that Mr. Fischer “is correct that ‘testing is not always required to satisfy
the reliability threshold of Rule 702,’” it found “that testing of a theory or calculation is
3
Mr. Fischer’s attempt to reframe Dr. Lalley’s report as supported by the Daubert
factors is unavailing. For example, Mr. Fischer notes that “Dr. Lalley explains in his
report that ‘elements of the design process is [sic] very similar for most mechanical
engineering projects’” and that “there are agencies that develop standards to maximize
this uniformity.” Aplt. Br. at 16 (quoting App. Vol. 1 at 43). He further explains that one
of these agencies is the International Organization for Standards (“ISO”)—an agency
under which BMW is certified and with which Dr. Lalley is familiar. Id. (citing App. Vol.
1 at 43). As the district court explained, however, “Dr. Lalley does not indicate what
these standards are or how they apply to this case.” Appl. Vol. 4 at 51–52 n.3.
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particularly important when the expert has provided no supporting evidence
demonstrating the basis or reliability of his calculations.” App. Vol. 4 at 53 (quoting Heer
v. Costco Wholesale Corp., 589 F. App’x 854, 862 (10th Cir. 2014) (unpublished)).
Where Dr. Lalley offered his formula without any support for its reliability or acceptance
in the scientific community, the district court did not exceed its discretion in finding that
the lack of testing weighed against its admissibility.
As the district court noted, Mr. Fischer argues the Instability Opinion was reliable
because it was based on “general engineering concepts” and “me[t] the standard for
acceptable methodology by written calculations in support of his opinion.” App. Vol. IV
at 51–52 (quoting App. Vol. 2 at 79–80). Specifically, he claims that Dr. Lalley
“discusses in his report . . . the concept of torque, the interplay of force and weight
causing rotation, and how it causes the tipping point to be reached.” Aplt. Br. at 13; see
also id. at 13–15 (discussing specific portions of Dr. Lalley’s report that discuss these
concepts). He notes that “torque is [a] well[-]known scientific principle,” that “[t]here is
no dispute that a tip over point for the vehicle jack exists,” and that Dr. Lalley’s report
defines the tipping point for the jack as “‘the point at which the torque causing rotation
equals the torque resisting rotation.’” Id. at 15–16 (quoting App. Vol. 1 at 32).
Simply noting a tipping point can be calculated with reasonable certainty,
however, does not mean Dr. Lalley’s specific formula and calculations for doing so are
reliable. Again, Dr. Lalley provides no evidence connecting his formula to the scientific
concepts he highlights. The district court, therefore, could not say how these general
engineering concepts support the figures Dr. Lalley used to calculate the torque-causing
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rotation or the torque-resisting rotation in this case. See General Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is
simply too great an analytical gap between the data and the opinion proffered”). The
district court thus did not abuse its discretion by rejecting Dr. Lalley’s and Mr. Fischer’s
untethered invocations of “physics” and “mathematical principles” as sufficient to
establish the reliability of the Instability Opinion under Rule 702.4
Causation Opinion
The district court also excluded Dr. Lalley’s Causation Opinion—i.e., his opinion
that the design defect caused the jack to fail and the vehicle to fall. The parties agree that
if the district court did not abuse its discretion in excluding Dr. Lalley’s Instability
Opinion, then it did not abuse its discretion in excluding the Causation Opinion. See Oral
Arg. at 3:01–3:25 (counsel for Mr. Fischer conceding this point). That is, Mr. Fischer’s
challenge to the district court’s exclusion of Dr. Lalley’s Causation Opinion is predicated
on the success of his challenge to the district court’s exclusion of the Instability Opinion.
See Aplt. Br. at 19 (arguing only that a “finding that the [d]istrict [c]ourt abused its
4
Mr. Fischer’s citations to out-of-circuit cases that purportedly contravene the
district court’s holding here are immaterial. These cases do not bind this court, and
moreover, the mere fact that one district court admitted an expert under analogous
circumstances does not render the district court’s decision to exclude Dr. Lalley’s opinion
here an abuse of discretion. “We must afford substantial deference to the district court’s
application of Daubert.” Etherton v. Owners Ins. Co., 829 F.3d 1209, 1216 (10th Cir.
2016) (emphasis and internal quotation marks omitted). And “[w]hen applying Rule 702,
different courts relying on essentially the same science may reach different results, but
we could still affirm both decisions due to our deferential standard of review.” Id. at 1217(internal quotation marks omitted).
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discretion with respect to excluding Dr. Lalley’s [Instability Opinion] . . . would also
mean that the [d]istrict [c]ourt abused its discretion” with respect to his Causation
Opinion) (emphasis added). Because we affirm the district court’s exclusion of the
Instability Opinion, we also affirm its exclusion of the Causation Opinion.
Intent Opinion
The district court also excluded Dr. Lalley’s Intent Opinion—i.e., his opinion that
BMW’s jack designers “compromised safety in the interest of cost reduction or space
requirements.” App. Vol. 4 at 56 (quoting App. Vol. 1 at 30). It reached this result after
finding Dr. Lalley was not qualified to testify on BMW’s intent. See id. at 57 (observing
“courts generally exclude expert testimony that directly attempts to state a corporate
defendant’s state of mind” because “expert opinions on the intent, motives, or states of
mind of corporations have no basis in any relevant body of knowledge of expertise”
(alterations and quotations marks omitted)).
On appeal, Mr. Fischer does not argue the district court abused its discretion by
excluding Dr. Lalley’s opinions concerning BMW’s intent.5 See Aplt. Br. at 20 (stating
Mr. Fischer “does not appeal” the district court’s exclusion of “Dr. Lalley’s opinions
about intent”). He instead argues the district court’s exclusion of the Intent Opinion was
broad enough to encompass Dr. Lalley’s thoughts on general product design, which he
claims “are proper[ly] based on Dr. Lalley’s qualifications.” Id. For example, Mr. Fischer
5
Accordingly, we do not reach this issue. See Singleton v. Wulff, 428 U.S. 106,
120 (1976) (“It is the general rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”).
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asserts Dr. Lalley is qualified to offer the following opinion from his rebuttal report:
“[o]ptimization of cost, weight and space are common engineering practice. Often
optimization represents a compromise between factors. Weight and cost are very
commonly simultaneously optimized in a compromise.” Id. (quoting App. Vol. 1 at 46).
But the record does not suggest the district court excluded that opinion—or any
other opinions about general product design. The district court’s ruling was narrow. After
finding Mr. Fischer “has not met his burden of demonstrating that Dr. Lalley is qualified
to testify as to the intent of the jack designers,” the district court stated, “Dr. Lalley is not
qualified to opine on defendant’s intent.” App. Vol. 4 at 57 (emphasis added). As a result,
the district court specifically held that “this opinion will be excluded.” Id. (emphasis
added). The singular opinion the district court excluded was Dr. Lalley’s view about why
BMW designed the jack as it did, not whether the design represented an engineering
tradeoff between weight, cost, or other factors.
Nothing in the district court’s ruling suggests it also excluded Dr. Lalley’s
opinions that did not involve BMW’s intent, motivation, or state of mind. This conclusion
is further buttressed by BMW’s actual motion to exclude, which never asked the court to
prohibit Dr. Lalley’s thoughts on general product design. See App. Vol. 1 at 15–16 & n.3,
23–24 (requesting only that the district court exclude Dr. Lalley’s “Opinion re Intent
Underlying Design”). Accordingly, we need not affirm or reverse the district court on this
issue because Mr. Fischer disputes a ruling the district court never made.
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C. Summary Judgment Analysis
Summary judgment is warranted when the movant is entitled to “judgment as a
matter of law” in the absence of a “genuine dispute as to any material fact.” Fed. R. Civ.
P. 56(a). We review the district court’s entry of summary judgment de novo, “applying
the same standard for summary judgment that applied in district court.” Sandoval v.
Unum Life Ins. Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020). We view the evidence
and draw all reasonable inferences in favor of the non-movant—Mr. Fischer. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Mr. Fischer argues that, because the district court’s grant of summary judgment
was predicated on its decision to exclude several of Dr. Lalley’s opinions, reversing its
decision as to any of those opinions warrants reversing summary judgment. Mr. Fischer
does not suggest, however, that if the district court’s exclusion decision was proper, there
is any basis to disturb the district court’s summary judgment decision. Because we affirm
the exclusion of each of the three disputed opinions, we affirm the district court’s
summary judgment decision.
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III. CONCLUSION
For these reasons, we AFFIRM the district court’s order.6
Entered for the Court
Carolyn B. McHugh
Circuit Judge
6
This court has also been asked to grant a motion for leave to file an amicus brief
by the Lawyers for Civil Justice (“LCJ”). In deciding whether to grant an amicus’s
motion to submit a brief, courts consider, among other factors, “whether the proposed
amicus is a disinterested entity.” United States v. Bd. of Cnty. Comm’rs of the Cnty. of
Otero, 184 F. Supp. 3d 1097, 1115 (D.N.M. 2015) (quoting Ass'n of Am. Sch. Paper
Suppliers v. United States, 683 F. Supp. 2d 1326, 1328 (Ct. Int’l Trade 2010)), aff’d 843
F.3d 1208 (10th Cir. 2016). Here, LCJ states its interest is that it is a national coalition of
corporations, defense trial lawyer organizations, and law firms whose “primary purpose
is to advocate for fairness and balance in the administration of civil justice, . . .
[including] through the filing of amicus curiae in briefs in cases involving the
interpretation and application of rules to issues in civil litigation.” LCJ Mot. at 2. The
amicus brief’s author—Lee Mickus—served as BMW’s counsel earlier in this litigation,
though he has since withdrawn. See Entry of Appearance and Cert. of Interested Parties
(Nov. 10, 2020), at 2 (noting Mr. Mickus “appeared for [BMW] at various times during
the underlying District Court litigation proceeding” but has since “withdrawn as counsel
of record”). Mr. Mickus should have disclosed his prior involvement in this litigation,
and we reject the motion given that prior involvement.
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