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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


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


  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.


  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 ...

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