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Ribeiro v. Baby Trend, Inc.

United States District Court, D. Nebraska

April 17, 2017

FRANCO RIBEIRO and DEANNA RIBEIRO, as individuals and as next friends and biological parents of LUCAS RIBEIRO, an infant, Plaintiffs,
v.
BABY TREND, INC., et al. Defendants.

          Michael F. Coyle, Jordan W. Adam, Emily J. Wischnowski, FRASER STRYKER PC LLO, ATTORNEYS FOR PLAINTIFFS

          Jeff W. Wright Jessica A. Uhlenkamp ATTORNEYS FOR LERADO GROUP CO., LTD., LERADO GROUP (HOLDING) COMPANY, LTD., LERADO (ZHONG SHAN) INDUSTRIAL CO., LTD., LERADO CHINA LIMITED, LERADO HK LIMITED, DOREL INDUSTRIES, INC., MAXI MILIAAN B.V.

          Matthew R. King Randall R. Riggs Frost, Brown & Todd, LLC and Ronald F. Krause David A. Blagg Cassem, Tierney, Adams, Gotch, & Douglas ATTORNEYS FOR DEFENDANT INDIANA MILLS & MANUFACTURING, INC.

          AMENDED ORDER ON PRETRIAL CONFERENCE

          F.A. GOSSETT U.S. MAGISTRATE JUDGE

         A final amended pretrial conference was held on the 17th of April, 2017. Appearing for the parties as counsel were:

         For Plaintiffs: Michael Coyle, Jordan Adam, and Emily Wischnowski, Fraser Stryker PC LLO.

         For Defendants Indiana Mills & Manufacturing, Inc. ("IMMI"): Randall R. Riggs and Matthew R. King, Frost Brown Todd, LLC; Ronald F. Krause, Cassem Tierney Adams Gotch & Douglas.

         For Defendants Lerado Group Co., Ltd., Lerado Group (Holding) Co., Ltd., Lerado (Zhong Shan) Industrial Co., Ldt., Lerado China Ltd., Lerado HK Ltd. (collectively, "Lerado Defendants"); Dorel Industries, Inc.; and Maxi Miliaan B.V.: Jeff Wright and Jessica Uhlenkamp, Heidman Law Firm, LLP.

         (A) Exhibits. Each of the parties' amended exhibit lists is attached and is incorporated by reference herein. The exhibits are objected to as specified on each Exhibit List, except for objections under Fed.R.Evid. 402 and 403, which are reserved until trial, per NECivR 16.1(a)(1)(A). Any party may offer any exhibit listed on any exhibit list, even if that exhibit is not included on that party's exhibit list. The mere listing of an exhibit on a party's exhibit list does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met first.

         The parties have agreed they will exchange with each other their objections to the exhibits on any other party's exhibit list by April 17, 2017, at 10:30 a.m. The parties stipulate that the non-subpoenaed records that Defendants (as well as Baby Trend, Inc., Millenium Development Corp., and Mark Sedlack) have produced from their records in this lawsuit are authentic and are business records within the meaning of Fed.R.Evid. 803(6).

         (B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:

         1. Plaintiffs Franco Ribeiro and Deanna Ribeiro are husband and wife and the biological parents of Lucas Ribeiro, an infant born on October 1, 2010, (collectively "Ribeiro Family"), and are residents of the State of Nebraska. Franco and Deanna Ribeiro have brought this action on behalf of themselves and on behalf of Lucas Ribeiro as his next friends.

         2. Defendant Indiana Mills & Manufacturing, Inc. ("IMMI") is an Indiana corporation that conducts business throughout the United States.

         3. Defendants Lerado Group Co., Ltd., Lerado Group (Holding) Company, Ltd., Lerado (Zhong Shan) Industrial Co., Ltd., Lerado China Limited, and Lerado H.K. Limited (collectively, "Lerado"), are Chinese corporations.

         4. Baby Trend, Inc. ("Baby Trend") is a California corporation who conducts business throughout the United States. Baby Trend marketed, sold and distributed its Baby Trend FLEX-LOC Infant Car Seat Model No. 6325 ("Car Seat") through retail stores in the State of Nebraska.

         5. Mark Sedlack is an individual residing in the State of Ohio, and Millenium Development Corp. is an Ohio corporation.

         6. The Car Seat at issue in this lawsuit was manufactured on February 28, 2006, at a Lerado facility in China.

         7. Lucas Ribeiro was born a healthy male twin on October 1, 2010. He and his twin brother, Alex, lived in Kearney, Nebraska with their parents, Franco and Deanna Ribeiro.

         8. Lucas Ribeiro was injured in the Car Seat on May 27, 2011, in Kearney, Nebraska.

         (C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

         PLAINTIFFS' STATEMENT OF ISSUES

         The following are the issues that Plaintiffs contend are remaining to be determined and/or are unresolved (Defendants object to Plaintiffs' characterization of these alleged issues, the claims that Plaintiffs make in the alleged issues, and contest the accuracy of the elements of the causes of action set forth in Plaintiffs' statement of issues):

         1. Plaintiffs' First Cause of Action: Negligence - Failure to Use Reasonable Care

a. Whether Defendants designed, manufactured, supplied, sold, and/or distributed the Car Seat and/or components parts for the Car Seat.
b. Whether Plaintiffs were those who used the Car Seat for a purpose for which the designer, manufacturer, and/or supplier should expect it to be used or those whom the designer, manufacturer, and/or supplier should expect to be endangered by its intended use.
c. Whether Defendants failed to use reasonable care:
i. To see that the Car Seat was safe for the use for which it was made; or
ii. By knowing or having reason to know that the Car Seat was dangerous when put to the use for which it was made and that those for whose use the Car Seat was made would not realize the danger, and failing to provide an adequate warning of that danger;
d. Whether Defendants' failure to use reasonable care was a proximate cause of some damage to Plaintiffs; and
e. The nature and extent of Plaintiffs' damages.

         2. Plaintiffs' First Cause of Action: Negligence - Failure to Warn

a. Whether Defendants designed, manufactured, supplied, sold, and/or distributed the Car Seat and/or components parts for the Car Seat;
b. Whether Plaintiffs were those who used the Car Seat for a purpose for which the designer, manufacturer, and/or supplier should expect it to be used or those whom the designer, manufacturer, and/or supplier should expect to be endangered by its intended use;
c. Whether Defendants knew or had reason to know that the Car Seat was likely to be dangerous when put to the use for which it was designed, manufactured, supplied, sold, and/or distributed;
d. Whether Defendants knew or had reason to know that those for whose use the Car Seat was designed, manufactured, supplied, sold, and/or distributed would not realize the danger;
e. Whether Defendants failed to provide reasonably foreseeable users of the Car Seat with adequate warning of that danger;
f. Whether this failure to warn reasonably foreseeable users of the Car Seat of the danger was a proximate cause of some damage to Plaintiffs; and
g. The nature and extent of that damage.

         3. Plaintiffs' Second Cause of Action: Strict Liability - Design and/or Manufacturing Defect

a. Whether Defendants placed the Car Seat on the market;
b. Whether, at the time the Car Seat left Defendants' possession, it was defective in one or more of the ways claimed by Plaintiffs;
c. Whether the Car Seat's defects made it unreasonably dangerous for its intended use, or for any use the defendants could have reasonably foreseen;
d. Whether the Car Seats defects were a proximate cause of some damages to Plaintiffs; and
e. The nature and extent of Plaintiffs' damages.

         4. Plaintiffs' Third Cause of Action: Strict Liability - Failure to Warn

a. Whether Defendants placed the Car Seat on the market;
b. Whether, at the time the Car Seat left Defendants' possession, it failed to warn or protect against a danger or hazard in the use, misuse, or intended use of it, or the failure to provide proper instructions for the use of it;
c. Whether the Car Seat's inadequate warnings made it unreasonably dangerous for its intended use, or for any use the defendants could have reasonably foreseen;
d. Whether the Car Seats inadequate warnings were a proximate cause of some damages to Plaintiffs; and
e. The nature and extent of Plaintiffs' damages.

         5. Plaintiffs' Fourth Cause of Action: Breach of Express Warranty

a. Whether Defendants sold the Car Seat;
b. Whether Defendants expressly warranted that the Car Seat was safe and reasonably fit for its intended purpose to hold and carry infants;
c. Whether Plaintiffs are persons who could have been expected to use, consume, or be ...

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