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BRAZIER v. HASBRO INC.

United States District Court, S.D. New York


March 9, 2004.

KEVIN BRAZIER, individually and as personal representative of the Estate of ROBERT J. BRAZIER, deceased, known as "Robbie," Plaintiffs, -against- HASBRO, INC. and TOYS "R" US, INC., Defendants

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District Page 2

OPINION & ORDER

Plaintiff Kevin Brazier ("Brazier"), acting individually and as personal representative of the estate of his son Robert J. Brazier ("Robert"), sues defendants Hasbro, Inc. ("Hasbro"), and Toys "R" Us, Inc. ("Toys "R" Us"), to recover for Robert's death, which resulted from choking on a Pokemon Power Bouncer — a toy ball — that was imported and distributed by Hasbro and sold by Toys "R" Us. Brazier asserts claims against both defendants for strict products liability, breach of warranty, negligence, and punitive damages.*fn1 Defendants move for summary judgment on all claims, and Brazier moves for an order pursuant to Rule 11 of the Federal Rules of Civil Procedure imposing sanctions against defendants for filing this summary judgment motion. For the reasons set forth below, decision will be deferred on that part of Brazier's negligence claim which asserts that the Pokemon Power Bouncer was defectively designed because of its size so as to give the parties the chance to submit additional papers relating to the admissibility of Brazier's experts' testimony. Defendants' summary judgment motion is granted as to other claims, and Brazier's Rule 11 motion is denied. Page 3

  I.

  The following facts are either undisputed or presented in the light most favorable to Brazier. On January 11 and January 29, 1999, Adrienne Brazier purchased a total of four Pokemon Power Bouncers from Toys "R" Us*fn2 for her three sons, Daniel, Robert, and Michael. (Deposition of Adrienne Brazier ("A. Brazier Dep.") at 38-39, 44, 46) A Pokemon Power Bouncer is a toy ball with a 1.72" diameter; it is made of translucent rubber and has a figure of a Pokemon character suspended inside. (Deposition of Defendant Hasbro, Inc., by Malcolm Denniss at 26; Defendants' Motion Exhibit ("Def. Ex.") B) When Adrienne Brazier purchased the Pokemon Power Bouncers, the following warning appeared on the bottom left corner of the product's packaging: "WARNING: CHOKING HAZARD — Toy contains, small ball. Not for children under 3 years." (Def. Ex. C) The bottom right corner of the packaging contained the statement, "AGES 4 AND UP." (Id.) Adrienne Brazier read all of these statements before purchasing the balls. (A. Brazier Dep. at 61-62)

  Between January 11 and January 30, 1999, Daniel, Robert, and Michael played with the Pokemon Power Bouncers once or twice a day by bouncing, rolling, and catching them. (Id. at Page 4 53-54) Robert Brazier, who was born on March 31, 1991, suffered from a form of autism known as Pervasive Developmental Disorder, and as of January 30, 1999, he spoke only a few words. (Id. at 6r7, 55-56; Affidavit of Kevin Brazier ¶ 6) Robert's toys included assorted balls of different sizes, including some that were smaller than the Pokemon Power Bouncer. (A. Brazier Dep. at 65-68) Adrienne Brazier said she never saw Robert put any of these balls in his mouth, but she was told in spring 1998 by Robert's occupational therapist that Robert required close supervision during tabletop activities at school because he had a tendency to put non-food items in his mouth. (Id. at 77, 89-91, 94-96; Def. Ex. G)

  In the early afternoon of Saturday, January 30, 1999, Adrienne Brazier was at home with Daniel, Robert, and Michael. (A. Brazier Dep. at 109-10) Daniel and Michael were talking on the stairs when they saw Robert enter from the living room, making hacking noises and pointing to his throat. (Deposition of Daniel Brazier at 8) When Robert opened his mouth, Daniel could see a Pokemon Power Bouncer inside. (Id. at 8) Daniel, who was one day shy of his tenth birthday, performed the Heimlich maneuver on Robert with no success. (Id. at 23; A. Brazier Dep. at 6) Adrienne Brazier heard Daniel screaming that Robert was choking, and she found the boys in the dining room. (A. Brazier Dep. at 119-21) As Daniel went to call 911, Adrienne continued Page 5 to perform the Heimlich maneuver on Robert. (Id. at 124-26) After Adrienne went outside and yelled for help, neighbors arrived and joined in the efforts to save Robert, and the Fire Department arrived as well. (Id. at 129-31, 136) Robert was rushed by ambulance to the hospital, where he arrived with the ball still lodged in his airway. (Id. at 144-46) He died shortly thereafter from asphyxiation. (Id. at 146)

  Kevin Brazier filed the present action on November 12, 1999.*fn3 Because the Braziers reside in New York and neither defendant is a New York domiciliary, jurisdiction in this case is based on diversity of citizenship.

  II.

  Brazier's negligence and breach of warranty claims are based in, part on the contention that the warnings on the packaging of the Pokemon Power Bouncer were inadequate. Specifically, Brazier alleges that defendants' warnings were Page 6 defective because they: (1) stated that the Pokemon Power Bouncer was intended for "ages' 4 and up", which implied that the toy was safe for children over the age of 3; (2) stated that the Pokemon Power Bouncer presented a choking hazard for "children under 3 years," which implied that children aged 3 and up were in no danger of choking; and (3) failed to warn purchasers and users of the risks presented by the Pokemon Power Bouncer. (See Complaint ("Compl.") ¶ 14a, 14e, 14f, 20; Amended Complaint ("Am. Compl.") ¶¶ 22a, 22e, 22f, 28) However, because defendants' warnings comply with the federal labeling requirements for toys containing small balls, Brazier's negligence and breach of warranty claims are preempted to the extent that they are based on a theory that these warnings are inadequate.

  In 1994, Congress enacted the Child Safety Protection Act, Pub.L. No. 103-267, 108 Stat. 722, ("CSPA") which' established requirements for products intended for children. Section 101(a) of the CSPA amended the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. § 1261-1278 (2000), by adding a new section, codified at 15 U.S.C. § 1278, which listed requirements for labeling certain toys and games. The CSPA also included the following preemption provision:

  [A] State or political subdivision of a State may not establish or enforce a requirement relating to cautionary labeling of small parts hazards or choking hazards in any toy, game, marble, small ball, or balloon intended or suitable for use by children unless such Page 7 requirement is identical to a requirement established by amendments made by this section to the Federal Hazardous Substances Act or by regulations promulgated by the Commission.

 CSPA § 101(e), reprinted at 15 U.S.C. § 1278 Note "Preemption". The language of this provision tracks the language of the preemption provision in the FHSA, which applies more generally to hazardous substances that are subject to cautionary labeling requirements pursuant to that statute.*fn4 See 15 U.S.C. § 1261 Note "Effect upon Federal and State Law" at (b)(1)(A).

  Although no court in this Circuit has yet interpreted the CSPA's preemption provision, the Second Circuit analyzed the FHSA's preemption provision in Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d Cir. 2001). There, the Court concluded that "the FHSA preempts any state cause of action that seeks to impose a Page 8 labeling requirement different from the requirements found in the FHSA and the regulations promulgated thereunder." Id. at 109.

  Accordingly, Milanese's claims for breach of express warranty, strict product liability, and negligence were preempted to the extent that they sought "to impose additional or more elaborate labeling requirements" than those required under the FHSA. Id.

  The toy labeling requirements of the CSPA have been added to the FHSA, and the CSPA's own preemption provision uses the same language as the general preemption provision of the FHSA. Accordingly, I conclude that Congress intended the CSPA's toy labeling requirements have the same preemptive effect as the FHSA's other requirements. Therefore, any state cause of action that seeks to impose different or additional toy labeling requirements related to choking hazards is preempted by the CSPA. Cf. West v. Mattel. Inc., 246 F. Supp.2d 640, 644 (S.D.' Tex. 2003) (holding that the CSPA preempts any common law claim predicated upon a theory that a CSPA-compliant warning label is inadequate).

  In this case, Brazier does not allege that the warnings on the Pokemon Power Bouncer failed to comply with CSPA requirements. Under the CSPA, any ball with a diameter of 1.75 inches or less that is intended for children aged 3 and up must contain the following cautionary statement: Page 9

  [symbol]*fn5 WARNING:

CHOKING HAZARD — This toy is a small ball.
Not for children under 3 yrs.
15 U.S.C. § 1278(b)(2)(B). Essentially the same warning is required for any toy or game containing such a ball, except that the statement "This toy is a small ball" is replaced with "Toy contains a small ball." 15 U.S.C. § 1278(b)(2)(D). Brazier does not dispute that the packaging of the Pokemon Power Bouncer included the warning required for a toy or game that contains a ball with a diameter of 1.75 inches or less,*fn6 and he does not allege that the warnings otherwise failed to comply with the CSPA. Instead, Brazier argues that these warnings were defective because they did not adequately inform Adrienne Brazier of the dangers presented by the Pokemon Power Bouncer. Because Brazier's negligence and breach of warranty claims effectively seek to impose additional labeling requirements on defendants above and beyond what is required by the CSPA, these claims are preempted to the extent that they allege such warning defects.

  Brazier's negligence and breach of warranty claims also Page 10 allege that the Pokemon Power Bouncer is defectively designed; such allegations are not preempted by the CSPA, and accordingly I must determine whether defendants are entitled to summary judgment on this aspect of Brazier's claims. See Lopez v. Hernandez, 253 A.D.2d 414, 415, 676 N.Y.S.2d 613, 614-15 (2d Dep't 1998) (explaining that causes of action not premised on a failure to warn or inadequate labeling survive preemption by the FHSA). For Brazier's breach of warranty claim, the complaints suggest that this claim is based on theories of breach of implied warranty of merchantability and breach of express warranty. (See Compl. ¶¶ 19-20; Am. Compl. ¶¶ 27-28) Because the only express warranty that Brazier alleges is the CSPA-compliant labeling on the product's packaging, (See Compl. ¶ 20; Am. Compl. ¶ 28), the breach of warranty claim is preempted to the extent it is based on a breach of express warranty argument. See Milanese. 244 F.3d at 109 (upholding preemption of claim for breach of express warranty to the extent that plaintiff sought to impose labeling requirements that differed from FHSA requirements). However, Brazier's breach of warranty claim is not preempted to the extent that it is based on the argument that defendants breached the implied warranty of merchantability by marketing a toy that was not fit for ordinary use. Page 11

  III.

  To recover on a breach of implied warranty of merchantability claim for a defectively designed product, a plaintiff must show that the product at issue does not satisfy the merchantability requirements of New York's version of the Uniform Commercial Code (", UCC"). See Penny v. Ford Motor Co., 87 N.Y.2d 248, 258-59, 639 N.Y.S.2d 250, 256 (1995). A product must be "fit for the ordinary purposes for which such goods are used" to be considered merchantable under the UCC. N.Y. U.C.C. § 2-314(2)(c) (McKinney 2003). Accordingly, an allegedly defective product gives rise to a breach of implied warranty claim when it is not fit for its ordinary purposes and causes injury as a result. See Denny, 87 N.Y.2d at 258-59, 639 N.Y.S.2d at 256. In determining whether a product is unmerchantable in this respect, "the . . . inquiry focuses on the expectations for the performance of the product when used in the customary, usual, and reasonably foreseeable manners." 87 N.Y.2d at 258-59, 639 N.Y;S'.2d at 256. "A warranty of fitness for ordinary purposes does not mean that the product will fulfill a buyer's every expectation." 87 N.Y.2d at 259 n.4, 639 N.Y.S.2d at 256 n.4 (internal quotation marks and alterations omitted). Rather, recovery for breach of implied warranty of merchantability is appropriate "upon a showing that the product was not minimally safe for its expected purpose . . ." 87 N.Y.2d at 259, 639 Page 12 N.Y.S.2d at 256.

  As a toy ball, the ordinary and expected purposes of the Pokemon Power Bouncer include being thrown, caught, bounced, and rolled. Brazier does not argue that the product is unfit for these purposes, and he does not claim that Robert was using the Pokemon Power Bouncer for its ordinary purposes when he put it in his mouth. Instead, Brazier suggests that Robert's placement of the ball in his mouth was an unintended but foreseeable misuse of the product. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Rule 56 Motion ("Pl. Memo.")' at 4-5) Brazier its correct to concede this point; no reasonable jury could conclude that a toy ball is performing an ordinary purpose when a child inserts it into his mouth. Because the implied warranty of merchantability for the Pokemon Power Bouncer does not include a warranty that the product is fit for safe insertion into a child's mouth, Brazier cannot maintain a cause of action for breach of implied warranty based on the contention that the ball was not minimally safe for this purpose. Because Brazier does not allege that the Pokemon Power Bouncer is unfit for the ordinary purposes of a toy ball, defendants are entitled to summary judgment dismissing Brazier's breach of warranty claim. See White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000) (explaining that summary judgment should be granted if no reasonable trier of fact could find in favor of the nonmoving Page 13 party).

  IV.

  To prevail on a strict products liability action for design defect under New York law, a plaintiff must demonstrate that: (1) the product is defective because it is not reasonably safe as marketed; (2) the product was being used for a normal purpose at the time of the injuring occurrence; (3) the defect was a substantial factor in causing the plaintiff's injuries; (4) the plaintiff would not, by the exercise of reasonable care, have both discovered the defect and apprehended its danger; and (5) the plaintiff would not otherwise have avoided the injury by the exercise of reasonable care. Urena v. Biro Mfg. Co., 114 F.3d 359, 363 (2d Cir. 1997) (citing Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991) (citing Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 95 (4th Dep't 1979), aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614 (1980)). See also Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 401 (1983).

  Brazier argues that defendants can be held strictly liable for harm caused by a foreseeable misuse of the Pokemon Power Bouncer as well as for harm caused by use for a normal purpose. (See Pi. Memo, at 4-5) Although the cases that Brazier Page 14 cites for this proposition all predate the Second Circuit's 1997 decision in Urena, some courts in this circuit have stated more recently that an action in strict products liability may lie for injuries that result from an unintended but reasonably foreseeable use of a product. See Beneway v. Superwinch, Inc., 216 F. Supp.2d 24, 29 (N.D.N.Y. 2002) (citing Lugo by Lopez v. LJN Toys. Ltd., 75 N.Y.2d 850, 852, 552 N.Y.S.2d 914, 915 (1990)); Anderson v. Hedstrom Corp., 76 F. Supp.2d 422, 455-56 (S.D.N.Y. 1999) (citing Voss, 59 N.Y.2d at 110 n.*, 463 N.Y.S.2d at 403 n.*). The New York Pattern Jury Instructions (2004) also state that strict liability may attach "when the product is used for its intended or reasonably foreseeable purpose." Id. at 2:141 (citing for this proposition, in the Comment, New York cases from 1992, 1990, and 1976). However, both these recent cases and the New York Pattern Jury Instructions are based on case law that predates the Second Circuit's decision in Urena. I have found no case decided after Urena by the New York Court of Appeals or the Second Circuit that explicitly discusses and rejects the requirement that a plaintiff must have been using a product for a normal purpose in order to prevail on a strict products liability claim. Accordingly, I must follow the Second Circuit's interpretation of New York law and conclude that Brazier can prevail on his strict products liability claim only upon a showing that the Pokemon Power Bouncer was being used for Page 15 a "normal purpose" when Robert asphyxiated. See Sita v. Danek Medical. Inc., 43 F. Supp.2d 245, 252 (E.D.N.Y. 1999) (stating that plaintiff can prevail on strict products liability claim only by showing that the product was being used for a normal purpose at the time of the injury); Hamm v. Willamette Indus., Inc., 99 Civ. 5166 (RCC), 2002 WL 342433, at *3 n.5 (S.D.N.Y. Mar. 5, 2002) (same); Faryniarz v. Nike, Inc., 00 Civ. 2623 (NRB), 2002 WL 530997, at *2 (S.D.N.Y. Apr. 8, 2002) (same); McEneaney v. Haywood, 687 N.Y.S.2d 547, 550 (Sup.Ct. App. Term 1999) (same).

  As discussed in Part III, supra, a toy ball is used for a normal purpose when it is thrown, caught, rolled, or bounced. Brazier does not argue, and no reasonable jury could find, that Robert Brazier was using the Pokemon Power Bouncer for a normal purpose when he put it in his mouth. Because the Pokemon Power Bouncer was not being used for a normal purpose or in a normal manner when Robert asphyxiated, Brazier cannot maintain a cause of action for strict products liability, and defendants' summary judgment motion is granted as to this claim.

  V.

  As discussed in Part II, supra, Brazier's negligence claim is preempted insofar as it is based on alleged defects in Page 16 defendants' warnings, but it is not preempted to the extent that * Brazier argues that defendants should be liable in negligence for distributing and selling a defectively designed product. Brazier alleges that the design of the Pokemon Power Bouncer was defective for two reasons: first, because a ball with a 1.72" diameter posed a serious choking hazard to children over the age of 3, particularly because the hazard was disguised by defectively designed packaging that made the ball appear larger than its actual size (Compl. ¶ 14d, 14e, 14i; Am. Compl. ¶ 22d 22e, 22i); second the appearance of the Pokemon Power Bouncer, which featured a character suspended in a translucent sphere, was defective because it tempted children to place the ball in their ` mouths in an attempt to open the ball and "free" the character inside (Compl. ¶ 14g; Am. Compl. ¶ 22g). According to Brazier, this risk was enhanced by the toy's connection to the Pokemon line of products, which apparently features characters emerging from spheres. (Compl. ¶ 14h; Am. Compl. ¶ 22h; Pl. Memo, at 7; Affidavit of Bert L. Reiner ("Reiner Aff.") ¶ 7)

  Defendants argue that they are entitled to summary judgment on the negligent design claim because Brazier has not offered evidence to show that the Pokemon Power Bouncer's alleged design defects caused Robert Brazier's injuries. In the alternative, defendants contend that they breached no duty by distributing and selling the Pokemon Power Bouncer because the Page 17 toy was not defectively designed for its intended and reasonably foreseeable uses. As will be discussed in more detail below, Brazier cannot show that the ball's appearance played any role in Robert Brazier's death, and his inability to prove causation entitles defendants to summary judgment on that aspect of the negligent design claim. As for Brazier's claim that the Pokemon Power Bouncer's size was a design defect, I will reserve judgment, on this aspect of defendants' summary judgment motion until the parties have submitted more briefs and affidavits on the question of expert opinion admissibility.

  A.

  To prove a claim of negligent design, "it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury." Clarke v. Helene Curtis. Inc., 293 A.D.2d 701, 701, 742 N.Y.S.2d 325, 326 (2d Dep't 2002) (quoting Tardella v. RJR Nabisco. Inc., 178 A.D.2d 737, 737, 576 N.Y.S.2d 965, 966 (2d Dep't 1991)); Fritz v. White Consol. Indus. Inc., 306 A.D.2d 896, 898, 762 N.Y.S.2d 711, 714 (4th Dep't 2003) (same). Defendants wisely do not argue that the size of the Pokemon Power Bouncer was not a substantial factor in causing Robert Brazier to asphyxiate; based on the evidence, a reasonable jury could conclude easily that the 1.72" diameter of the ball — small enough to enter Robert's mouth and Page 18 large enough to obstruct his airway — played an important role in his death. However, Brazier has not produced any evidence to suggest that the product's packaging contributed to the accident in any way,*fn7 and therefore defendants are entitled to summary-judgment to the extent that Brazier argues that the packaging of the Pokemon Power Bouncer was defectively designed. As will be discussed in more detail below, defendants are entitled to summary judgment also on Brazier's claim that the appearance of the Pokemon Power Bouncer was a design defect because no reasonable jury could find, by a preponderance of the evidence, that this alleged defect was substantial factor in causing Robert's death.

  Brazier alleges that the Pokemon Power Bouncer's appearance inspired Robert to put the ball in his mouth in a misguided attempt to access the Pokemon character suspended within. (Compl. ¶ 8; Am. Compl. ¶ 16) Although no one witnessed Robert placing the ball in his mouth, Brazier attempts to prove his theory by proffering the opinions of two people, Adrienne Page 19

  Brazier and engineering expert Bert L. Reiner.*fn8 Neither opinion is admissible under the Federal Rules of Evidence. First, Adrienne Brazier, a lay witness, theorizes that Robert put the ball in his mouth in an attempt to release the Pokemon character encased in the ball. (A. Brazier Dep. at 156-57) A lay witness may testify only about opinions or inferences that are, "rationally based on the perception of the witness." Fed.R.Evid. 701 Because Adrienne Brazier concedes that she has no actual knowledge or information about how the ball came to be placed in Robert's mouth (A. Brazier Dep. at 155-56), her opinion about Robert's motivation is inadmissible under Rule 701 of the Federal Rules of Evidence.

  Second, Reiner, one of plaintiff's three expert witness, opined that "it is reasonable to conclude that Robert's action of placing the Pokemon Power Bouncer of 1.72 inches in his Page 20 mouth was a result of his intent to `free' or `hatch' the figure from inside the ball." (Reiner Aff. ¶ 8) In order for this opinion to be admissible expert testimony under Rule 702 of the Federal Rules of Evidence, Reiner must be "qualified as an expert by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. Although Reiner has 35 years of experience in engineering and quality assurance in toy design, his curriculum vitae reveals no expertise in child psychology or behavior that renders him specially qualified to discern Robert Brazier's personal motivation. See Zaremba v. Gen. Motors Corp., No. 03-7565, 2004 WL 259254, at *4 (2d Cir. Feb. 13, 2004) (suggesting that purported expert's meager qualifications in area of alleged expertise rendered further Daubert analysis almost superfluous). Even if Reiner were qualified to provide expert testimony about Robert's intent, his opinion would have to be unreliable and speculative because it lacks a factual basis. See Fed.R.Evid. 702 (explaining that expert testimony "must be based upon sufficient facts or data"). In preparing his opinion, the only documents Reiner reviewed that pertained to Robert's asphyxiation, rather than to the design and manufacture of the Pokemon Power Bouncer, were the depositions in this case (Reiner Aff. ¶ 4), which reveal that no one witnessed Robert putting the ball in his mouth. Although Reiner contends that his opinion is supported by deposition testimony showing that other children, Page 21 using various means, pried open Pokemon Power Bouncers to get the character inside (Reiner Aff. ¶ 8), the actions of other children cannot illuminate what was in Robert Brazier's mind when he put the ball in his mouth. Because Reiner is not qualified to provide an opinion about Robert's state of mind, and because his opinion is based on conjecture and speculation rather than facts, Reiner's testimony about Robert's intent is inadmissible under Rule 702 of the Federal Rules of Evidence.

  Apart from these two inadmissible opinions, the only evidence in the record that supports Brazier's theory of causation is Adrienne Brazier's testimony, taken at her deposition, that Robert had a tendency to open things with his mouth, such as potato chip bags and round, clear containers from vending machines. (A. Brazier Dep. at 158-59) She further testified that, apart from this behavior, Robert had stopped putting non-food items in his mouth when he was 4 or 5 years old. (Id. at 164-5) However, Adrienne Brazier also admitted that an occupational therapist reported in spring 1998, when Robert was 7 years old, that Robert required close supervision during tabletop activities at school because he had a tendency to put non-food items in his mouth, such as Play-Doh, shaving cream, and uncooked beans and rice. (Id. at 89-91, 93-96; Def. Ex. G)

  In order to prevail on a negligence claim based on a defect in the ball's appearance, Brazier would need to show that Page 22 it is more likely or more reasonable to conclude that Robert put the Pokemon Power Bouncer in his mouth because of its appearance than for some other reason. See Gayle v. City of New York, 92 N, Y.2d 936, 937, 680 N.Y.S.2d 900, 901 (1998) (explaining that plaintiff must show that it is more likely or more reasonable that injury was caused by defendant's negligence than by some other agency). Although Brazier need not positively exclude every other possible cause for Robert's actions, "the proof must render those other causes sufficiently `remote' or `technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence." Id. Because the record in this case reveals that Robert had a history of putting non-food items in his mouth even when he was not trying to open them, a jury would be forced to speculate about what motivated Robert to put the Pokemon Power Bouncer in his mouth on January 30, 1999. Because Brazier supports his theory of causation only with "speculation, guess, and surmise, which may not be substituted for competent evidence," defendants are entitled to summary judgment on Brazier's negligence claim insofar as it is based on alleged defects in the appearance of the Pokemon Power Bouncer. Grob v. Kings Realty Assocs., LLC, _A.D.2d _, 771 N.Y.S.2d 384, 385 (2d Dep't 2004) (internal brackets and quotation marks omitted). See also Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) Page 23 ("Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.").

  B.

  The only basis for a negligence claim that remains is Brazier's contention that the Pokemon Power Bouncer was defectively designed because of its size. Under New York law, the manufacturer of a product has "a duty to use reasonable care in designing its product so that it will be safe when `used in the manner for which the product was intended, as well as [any] unintended yet reasonably foreseeable use.'" Liriano v. Hobart Corp., 132 F.3d 124/126 (2d Cir. 1998) (quoting Micallef v. Miehle Co., 39 N.Y.2d 376, 385-86, 384 N.Y.S.2d 115, 121 (1976)). Although Hasbro and Toys "R" Us did not manufacture the Pokemon Power Bouncer, defendants do not argue that distributors and sellers are subject to a lesser duty of care when distributing and selling a product. Accordingly, defendants may have breached a duty if the Pokemon Power Bouncer was unsafe for an intended or reasonably foreseeable use, but defendants have breached no duty if the Pokemon Power Bouncer was unsafe only for uses that are unforeseeable. See Pinero v. Rite Aid of New York, Inc., 294 A.D.2d 251, 252, 743 N.Y.S.2d 21, 22 (1st Dep't 2002), aff'd, 99 N.Y.2d 541, 753 N.Y.S.2d 805 (explaining that, in a negligence claim, duty arises only when the risk of harm is reasonably Page 24 foreseeable); Danielenko v. Kinney Rent A Car. Inc., 57 N.Y.2d 1198, 204, 455 N.Y.S.2d 555, 557 (1982) ("Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants' conduct."). Because Brazier argues only that the Pokemon Power Bouncer was unsafe for insertion into a child's mouth, and not that it was unsafe for other possible uses, I must determine whether this particular "use" of the product was reasonably foreseeable. If not, defendants breached no duty by distributing and selling the Pokemon Power Bouncer and thus cannot be held liable in negligence.

  Defendants argue that they breached no duty because they could not reasonably foresee that a child who was almost 8 years old would put the ball in his mouth. (Memorandum of Law of Defendants in Support of Motion for Summary Judgment ("Def. Memo.") at 17-18) Brazier disagrees and, relying in part on the opinions of his experts, claims that it was foreseeable that a child between the ages of 4 and 10 might place the ball in his or her mouth and choke. (Pl. Memo, at 4-5) Neither party suggests that the foreseeability calculus would be different for a 4-year-old child and a child who was nearly 8 years old. Under New York law, "foreseeability includes the probability of the occurrence of a general type of risk involving the loss, rather than the probability of the occurrence of the precise chain of events Page 25 preceding the loss." Parsons v. Honeywell, 929 F.2d 901, 905-06 (2d Cir. 1991) (quoting Tucci v. Bossert, 53 A.D.2d 291, 293, 385 N.Y.S.2d 328, 331 (2d Dep't 1976)). Although the precise chain of events in this case involved a 7-year-old boy, the general type of risk here is that a child for whom the Pokemon Power Bouncer was intended — a child aged 4 or older — would put the ball in his or her mouth and choke. Accordingly, the question I must answer is whether a reasonable jury could find it reasonably foreseeable that a child over the age of 3 would put the Pokemon Power Bouncer in his mouth and asphyxiate.

  In support of his claim that defendants should have reasonably foreseen that a child over the age of 3 might place a Pokemon Power Bouncer in his mouth and choke, Brazier proffers affidavits from his three expert witnesses. First, physician Dr. Frank L. — Rimell quotes a portion of an article he wrote, published in 1995 in the Journal of the American Medical Association, which states, "Although two thirds of children who choke to death on man-made objects are younger than 3 years, these objects pose a significant risk of asphyxiation to older children as well." (Affidavit of Frank L. Rimell ¶ 9) With respect to the Pokemon Power Bouncer, Dr. Rimell opines that "the diameter of this ball of 1.72 inches presents a choking hazard in and of itself, given the anatomical sizes and dimensions of the pharynx of a young child." (Id. ¶ 10) Second, toy safety Page 26 consultant Paul Doppelt claims, "[C]hildren of any age will put `things in their mouths," and states, "It is my professional opinion that the 1.72 inch (43.7 mm) diameter spherically shaped Pokemon Power Bouncer Ball presented a clear risk of a choking mishap for children of the intended and specified age of 4 years and above." (Affidavit of Paul Doppelt ¶¶ 8, 10) Finally, mechanical engineer and quality assurance consultant Bert L. Reiner states, "It is my opinion that a `reasonably foreseeable abuse' would include a child placing this ball in his or her mouth, whether for sensory purposes or to remove the figurine, and that increasing the diameter of the ball would have greatly reduced or eliminated the present choking hazard." (Reiner Aff. ¶ 11)

  Defendants argue that this opinion testimony from Brazier's experts is not sufficiently reliable and thus inadmissible under Rule 702 of the Federal Rules of Evidence. According to defendants, these opinions do not satisfy the requirements of Rule 702 because they are not based upon sufficient data and because they are not the product of reliable principles and methods. (Memorandum of Defendants in Reply ("Def. Reply Memo.") at 20-24) Defendants also criticize these opinions because they are unpublished, expressed solely for the purpose of litigation, and allegedly contradict earlier opinions from the same experts. (Id. at 24-28) Because defendants raised Page 27 all of these arguments for the first time in their reply, Brazier has not yet had an opportunity to respond with his own arguments and supplementary affidavits. Accordingly, Brazier has until April 28, 2004, to submit a response to defendants' attacks on his experts. This response should include a memorandum of law addressing defendants' arguments and supplementary affidavits from all three experts that provide more information about the data and methodology the experts employed to arrive at the conclusions listed in the previous paragraph. If defendants then wish to submit a reply, they may do so by May 19, 2004. Upon receipt of these papers, I will determine the admissibility of Brazier's experts' testimony and, in turn, will rule on defendants' motion for summary judgment on the negligence claim insofar as it is based on an alleged design defect in the size of the Pokemon Power Bouncer.

  VI.

  Punitive damages are available in ordinary New York tort actions only if the plaintiff can show "the existence of circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton." Carvel Corp. v. Noonan, 350 F.3d 6, 24 (2d Cir. 2003) (quoting Page 28 Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466, 479, 605 N.Y.S.2d 218, 226 (1993)) (internal quotation marks omitted). In this case, Brazier alleges that defendants acted with conscious indifference to Robert Brazier by marketing the Pokemon Power Bouncer even though they knew that the product posed a risk of potentially catastrophic harm to children over 4. (Compl. ¶¶ 37-40; Am. Compl. ¶¶ 48-51) However, Brazier has produced no evidence to support this allegation, and nothing in the record suggests that defendants had any knowledge about any potential danger from the Pokemon Power Bouncer. Because Brazier has failed to support his allegations with any evidence that could allow a reasonable jury to award punitive damages in this case, defendants are entitled to summary judgment dismissing this claim. Page 29

  * * *

  For the reasons stated above, defendants' summary judgment motion is granted for all claims, except for the portion of Brazier's negligence claim that is based on alleged design defects in the size of the Pokemon Power Bouncer. Because I must determine the admissibility of Brazier's experts' testimony before deciding whether summary judgment is appropriate on that remaining negligence claim, the parties are directed to submit additional briefs and affidavits in accordance with the instructions, in Part V(B) of this opinion. Based on the foregoing discussion, Brazier's Rule 11 motion, which requests sanctions against defendants for filing a baseless summary judgment motion, is denied.

  SO ORDERED.


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