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Ribeiro v. Baby Trend, Inc.

United States District Court, D. Nebraska

April 17, 2017

FRANCO RIBEIRO, as individuals and as next friends and biological parents of Lucas Ribeiro, an infant; and DEANNA RIBEIRO, as individuals and as next friends and biological parents of Lucas Ribeiro, an infant; Plaintiffs,
v.
BABY TREND, INC., a corporation; MARK SEDLACK, MILLENIUM DEVELOPMENT CORP., INDIANA MILLS & MANUFACTURING INC., LERADO GROUP CO., LTD., LERADO GROUP HOLDING COMPANY, LTD., LERADO ZHONG SHAN INDUSTRIAL CO., LTD., LERADO CHINA LIMITED, LERADO H.K. LIMITED, MAXI MILIAAN B.V., and DOREL INDUSTRIES, INC., Defendants.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court on the parties' motions in limine. Filing Nos. 652, 655, 657, 658, 662, 664, 665, 666, 670, 672, 675, 677, 678, 683, 714, 717, and 727. This is a products liability action set for trial on April 24, 2017.

         I. LAW

         Although the motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings, performing a gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Id.In other instances, it is necessary to defer ruling until trial, when the trial judge can better estimate the impact of the evidence on the jury. Id.To the extent that a party challenges the probative value of the evidence, an attack upon the probative sufficiency of evidence relates not to admissibility but to the weight of the evidence and is a matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).

         The court has reviewed the parties' submissions and finds as follows.

         II. Defendant's Motions

         A. Defendants' Joint Motion in Limine to Exclude NHTSA Recall Investigation of the Flex-Loc, Filing No. 652.

         The defendants argue that the NHTSA investigation of a button spring is irrelevant to the claims in this matter and does not represent a "substantially similar incident." The plaintiffs argue the information presented in the investigation and the response to the NHTSA investigation is relevant and directly relates to this litigation. They contend the recall investigation involved the same model car seat at issue here and state that the evidence goes to the issue of the defendant's knowledge of a danger.

         The court is unable to evaluate the relevance of the challenged evidence in the context of a pretrial motion. The court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed.R.Evid. 403. The court finds the motion can be adequately resolved at trial as an objection with a sidebar, or with a review of the evidence outside the presence of the jury. Accordingly, the court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection to the admissibility of such evidence at trial.

         B. Defendants' Joint Motion in Limine to Exclude Testimony from Plaintiffs' Purported Experts Regarding Legal Conclusions and Defendants' Legal Duty to Plaintiffs, Filing No. 655

         Defendants argue that plaintiffs' experts cannot testify as to the obligations or duties the Defendants owed to plaintiffs during the process of designing and manufacturing the car seat and its warnings (or lack thereof), including whether a legal duty exists. They also argue the experts should not be permitted to testify that the design of the car seat or the instructions/warnings (or absence thereof) rendered the car seat "unreasonably dangerous" or "defective." Experts routinely opine as to whether a product is "unreasonably dangerous, " such testimony is generally held to be essential to a product liability action. See Shaffer v. Amada Am., Inc., 335 F.Supp.2d 992, 998 (E.D. Mo. 2003) (holding that expert testimony opining that product was "unreasonably dangerous" was necessary for plaintiff's case). Whether a defendant used reasonable care is a proper topic for qualified experts. Using expert testimony to show this is proper. See also Bank v. White, No. 4:06CV01475 JLH, 2009 U.S. Dist. LEXIS 94584, at *37 (E.D. Ark. Sep. 24, 2009) (holding that expert testimony may be inadmissible to show defendant had a statutory duty but that it was proper regarding defendant's duty of ordinary care for plaintiff's negligence claim).

         The court is unable to evaluate the relevance of the challenged evidence in the context of a pretrial motion. Defendants' concerns may warrant a cautionary or limiting instruction, but the court cannot determine the ambit of such an instruction at this time.

         The court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed.R.Evid. 403. The court finds the motion can be adequately resolved at trial, either in a hearing immediately prior to commencement of the trial, as an objection with a sidebar, or with a review of the evidence outside the presence of the jury. Accordingly, the court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection to the admissibility of such evidence at trial.

         C. Defendants' Joint Motion in Limine to Exclude Evidence of Alleged Pain and Suffering or Other Loss of Lucas Ribeiro's Siblings, Filing No. 657.

         The defendants seek to exclude testimony of the alleged pain and suffering of Lucas Ribiero's siblings, arguing. The plaintiffs contend that the motion is an improper attempt to resolve a legal issue and further argue that the evidence is relevant to the determination of the physical pain and mental suffering the plaintiff has experienced and is reasonably certain to experience in the future.

         The court is unable to evaluate the relevance of the challenged evidence in the context of a pretrial motion. Defendants' concerns may warrant a cautionary or limiting instruction, but the court cannot determine the ambit of such an instruction at this time. The court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed.R.Evid. 403. The court finds the motion can be adequately resolved at trial, either in a hearing immediately prior to commencement of the trial, as an objection with a sidebar, or with a review of the evidence outside the presence of the jury. Accordingly, the court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection to the admissibility of such evidence at trial.

         The court finds any testimony that discusses the impact of Lucas's injuries with regard to his siblings Alex and Evelyn or the family at large is admissible and relevant to demonstrate the extent of the pain, suffering, and loss experienced by Lucas due to his injuries. Such testimony does not go to Lucas' siblings' pain and suffering but rather to the pain and suffering of Lucas.

         D. Defendants' Joint Motion in Limine to Preclude Evidence Regarding Other Incidents, Filing No. 658.

         The defendants seek to preclude evidence of other incidents of infants strangling in an infant car seat. They argue that the prior incidents are not substantially similar to the incident at issue and also contend that the other incidents were not publicly known until after the incident at issue. The plaintiffs argue that the other incidents were substantially similar to the incident at issue and were documented in reports published to the general public from the Consumer Product Safety Commission ("CPSC") and the Center for Disease Control ("CDC") the car seat was manufactured in February 2006. Further, the strangulation reports published by the CPSC and CDC were also available to the public, including defendants, between the time that the Baby Trend car seat was placed on the market (February 28, 2006) and Lucas' strangulation in the car seat (May 27, 2011).

         In the area of product liability litigation, evidence of similar injuries or incidents “may be relevant to prove a product's lack of safety or a party's notice of defects.” J.B. Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 445 (8th Cir.2001). Similar incident evidence also risks raising “extraneous controversial issues, ” confusing the issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the offering party has the burden of demonstrating that the past incidents are substantially similar to the incident at issue. Id. at 445. Cross-examination is the appropriate vehicle for testing the similarities of other accidents to the accident in question. E.g., Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 626 (8th Cir. 1983) ("[Defendant] had ample opportunity, of which it availed itself, to rebut the force of the other complaints by pointing out dissimilarities between the complainers' symptoms and the symptoms of TSS. It was up to the jury to decide what weight to give the complaints from other consumers.")

         The court will admit the evidence at issue only with proper foundation. The plaintiffs must show that the incidents were substantially similar to that at issue. At this stage, the motion is premature. Evidence of substantially similar prior incidents generally appears to be relevant to the issues of notice and knowledge of inadequacy of warnings, the magnitude of the risk, knowledge of defect and the standard of care. The defendants' contentions go more to the weight of the evidence than to admissibility.

         The court finds the motion can be adequately resolved at trial via a timely objection with a sidebar. Accordingly, the court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion at trial.

         E. Defendants' Joint Motion in Limine to Preclude Use of the "Day in the Life" Video, Filing No. 662.

         Defendants assert that the video's prejudicial effect outweighs its probative value. They further argue it is unnecessarily duplicative of the parents' testimony and the medical evidence. The plaintiffs argue that the 26-minute video showing Lucas Ribeiro at 19 months interacting with his parents and brother, and depicting his bath time, feeding processes, physical therapy sessions and exercises and showing medical equipment is relevant to the issue of the plaintiffs' damages.

         "[Rule 403] does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial." United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006) (quoting United States v. Johnson, 463 F.3d 803 (8th Cir. 2006).

         F. Defendants' Joint Motion in Limine to Preclude Evidence Regarding Foreign Standards and Regulations, Filing No. 664.

         Defendants seek to exclude evidence relating to ECE R44, the European car seat standard which requires that the entire harness system on a car seat be able to come apart with the push of a single button. The plaintiffs argue the evidence is directly related to the claims relating to the defective design of the infant carrier.

         The court finds the motion should be denied at this time. The evidence appears relevant to the plaintiffs' theory that the design of the subject infant carrier was defective, in part, because it used a European-style dual tongue, single entry puzzle buckle with an American-style chest clip in the 5-point harness. The evidence may provide background and context to the plaintiffs' theories. The evidence may warrant a cautionary instruction, but the court cannot determine the ambit of such an instruction in the context of a pretrial motion. The court finds the motion can be adequately resolved at trial. Accordingly, the court finds that the motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection to the admissibility of such evidence at trial.

         G. Defendants' Joint Motion in Limine to Exclude New Expert Opinions Not Originally Disclosed in Plaintiffs' Expert Disclosures, Filing No. 665.

         Defendants seek an order admonishing the parties not to refer, prior to jury selection, to new expert opinions not originally disclosed in the plaintiffs' expert disclosures. They argue that plaintiffs' experts opined on new issues and developed new theories for the first time in their depositions-based on no new evidence, and likely simply in response to legal arguments made in Defendants' dispositive motions- well after Plaintiffs' expert disclosure deadline details. The plaintiffs argue that the rebuttal opinions should come as no surprise to the defendants.

         The court rejects the defendant's argument that the untimely disclosure warrants exclusion of the experts' testimony. The defendants were aware of the identity and general subject matter of the reports as revealed in their original expert disclosures.

         The defendants were afforded an opportunity to depose the experts and can show no prejudice in any late disclosure. Defendants were in possession of all the information they needed before their experts were deposed. The defendants have also supplemented their expert disclosures. Accordingly the court finds the motion should be denied.

         H. Defendants' Joint Motion in Limine to Preclude the Use of "Parlor Tricks" at Trial, Filing No. 666

         In this motion, the defendants seek to prevent plaintiffs from utilizing the Baby Trend car seat to demonstrate evidence to the jury, alleging that any such demonstration would be considered a "parlor trick" at trial. Plaintiffs argue that plaintiffs' experts have performed tests on the infant carrier with the objective to determine whether the infant carrier contains, among other things, the physical properties of a defective design, particularly whether the design could allow for a false click. (Filing No. 569-20, Hoffmann Report, pp. 5-10.; Filing No. 569-21, Expert Report of Terry Stentz, Ph.D., and Kelli Herstein, Ph.D., pp. 15-20.) As such, plaintiffs' experts should be allowed to introduce experimental testimony that supports their findings regarding the infant carrier, including, but not limited to, the fact that the crotch buckle of the infant carrier produces a false click.

         "The admissibility of evidence of experimental tests rests largely in the discretion of the trial judge, " and foundational standards for its admissibility is dependent on the purpose of the experimental evidence. McKnight by & Through Ludwig v. Johnson Controls, 36 F.3d 1396, 1401 (8th Cir. 1994) (citing Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir. 1987)). In order for a party to introduce experimental testimony that recreates the incident, that party need only show that such experiment contains conditions with substantial similarity to the actual conditions of the incident. The "substantial similarity requirement [is] not a perfect identity requirement." See McKnight, 36 F.3d at 1404 (8th Cir. 1994). Furthermore, any dissimilarity between the incident and the experimental evidence only "affect[s] the weight of the evidence, not its admissibility." Id. at 1405.

         Again the court is unable to evaluate the evidence in the context of a pretrial motion. The court finds generally that plaintiffs should be allowed to demonstrate to the jury the false click made by the crotch buckle on the Baby Trend car seat, as well as its allegedly excessive rocking ability and other alleged defective design and warning features. Experimental evidence is allowed if it is used to demonstrate the expert's scientific inquiry. The plaintiffs will be required to lay a proper foundation that any experimental testimony introduced to recreate the incident was performed under conditions with substantial similarity to the actual conditions of the incident. The defendants' arguments go more to weight than admissibility and can be addressed in cross-examination or via objection at trial.

         I. Defendants' Joint Motion in Limine to Preclude Evidence Regarding Sale to Dorel and Financial Status, Filing No. 670.

         The Lerado defendants move to preclude evidence regarding the sale of some or all of the Lerado business to Dorel and the financial status of the Lerado defendants. They argue that such information is not relevant, and even if it is, it should be excluded under Rule 403. The plaintiffs assert the evidence is relevant because the defendants' retained experts have worked for or are presently working for or with Dorel. They argue the fact that Lerado's experts have and are currently working for Dorel is highly relevant information to show the experts' bias in forming their opinions. Further, they argue the evidence of the sale and Lerado's financial status is relevant and necessary to show that Lerado had the resources and expertise to conduct the necessary design and testing processes for the subject infant carrier. Plaintiffs represent that they do not intend to offer financial status or the sale to Dorel to suggest that the defendants are capable of paying a large verdict.

         The court finds that the financial status of Lerado or Dorel is irrelevant. Evidence of the business relationship between Lerado and Dorel may be relevant. The court is unable to evaluate the relevance of this challenged evidence in the context of a pretrial motion. The evidence may be admissible only for a limited purpose or as impeachment evidence. Whether the evidence would warrant a cautionary or limiting instruction cannot be determined at this time. The court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed.R.Evid. 403. Accordingly, the court overrules the motion, without prejudice to reassertion.

         J. Defendants' Joint Motion in Limine to Preclude Evidence Regarding 2013 (or Later) ASTM Standards and CPSC Studies, Filing No. 672

         The defendants seek to preclude evidence of standards and studies that were published after the car seat was manufactured in 2006, specifically, a mandatory warning that became effective in 2013. They argue that the evidence is not relevant to the defendants' duties or obligations in 2006.

         The plaintiffs argue that there were no mandatory requirements for hand-held infant carriers in 2006-only a voluntary standard issued under ASTM F2050-03. The Consumer Product Safety Commission undertook a human factors study regarding the injuries and deaths associated with hand-held infant carriers, and subsequently issued a Notice of Proposed Rulemaking for a new mandatory standard in 2008. The study was based on publicly-available data dating back to 1999. The plaintiffs argue that the standards do not establish the defendants' duty of care but may be relevant to show defendants knew or should have known that others in the industry had acknowledged the risk of harm. The plaintiffs also argue that the evidence is relevant to rebut any contention that it was not feasible for them to include this warning or that they did not have the information necessary to analyze whether the warning was appropriate.

         Industry standards at the time the manufacturer chose the design at issue is one factor in determining the manufacturer's exercise of reasonable care. See, e.g.,Buchanna ...


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