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BRAZIER v. HASBRO

June 30, 2004.

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



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

OPINION AND ORDER

On March 9, 2004, this court issued an Opinion and Order, familiarity with which is assumed, granting summary judgment to defendants Toys "R" Us, Inc., ("Toys "R" Us") and Hasbro, Inc., ("Hasbro") as to almost all of plaintiff Kevin Brazier's claims. Decision was deferred on Brazier's remaining negligence claim because Brazier had not yet had an opportunity to respond to defendants' arguments on the admissibility of his experts' opinions. In order to survive summary judgment on the negligence claim, Brazier must present evidence that would enable a reasonable jury to find it reasonably foreseeable that a child over the age of 3 would choke on a Pokemon Power Bouncer — a toy ball with a 1.72-inch diameter. The only evidence that Brazier has offered in support of such a proposition are the opinions of his experts, and as will be discussed below, these opinions must be excluded under Rule 702 of the Federal Rules of Evidence because they are not based on sufficient facts or reliable principles and methods. Accordingly, because Brazier has produced no admissible evidence to support the conclusion that the Pokemon Power Bouncer posed a foreseeable risk to children over three, defendants' motion for summary judgment is granted as to Brazier's remaining negligence claim. I.

  The facts of this case are set forth in detail in this court's previous opinion, Brazier v. Hasbro, Inc., No. 99 Civ. 11258 (MBM), 2004 WL 515536 (S.D.N.Y. Mar. 16, 2004), and are summarized briefly below.

  On January 30, 1999, Kevin Brazier's 7-year-old son Robert choked to death on a Pokemon Power Bouncer that was distributed by Hasbro, sold by Toys "R" Us, and labeled for use by children "ages 4 and up." Id. at *1-*2. On November 12, 1999, Kevin Brazier, acting individually and as personal representative of Robert's estate, filed this action, alleging claims against defendants based on negligence, breach of warranty, strict products liability, negligent infliction of emotional distress, unfair and deceptive trade practice, and punitive damages. Id. at *1. Brazier later stipulated to the dismissal of his claims for negligent infliction of emotional distress and unfair and deceptive trade practices, and this court granted defendants' motion for summary judgment as to all other claims except for the portion of Brazier's negligence claim that was based on alleged design defects in the size of the Pokemon Power Bouncer. Id.

  With respect to Brazier's remaining claim, the court explained that "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." Id. at *8. Accordingly, defendants would be entitled to summary judgment as to this claim unless a reasonable jury could find it reasonably foreseeable that a child over the age of 3 would put a Pokemon Power Bouncer in his mouth and asphyxiate. Id. at *8-*9. To support his claim that defendants should have reasonably foreseen that a child over the age of 3 might choke on a Pokemon Power Bouncer, Brazier proffered affidavits from three expert witnesses: physician Dr. Frank L. Rimell, toy safety consultant Paul Doppelt, and mechanical engineer and quality assurance consultant Bert L. Reiner. Id. In their reply papers, defendants argued that the opinion testimony of these experts was not sufficiently reliable and thus inadmissible under Rule 702 of the Federal Rules of Evidence. Id. at *10. Because Brazier had not yet had the opportunity to respond to defendants' attacks on his experts, the court directed him to submit a response to defendants' attacks on his experts. Id. The court then explained, "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." Id. Despite the court's explicit instructions, Brazier has submitted neither a memorandum of law nor affidavits from any of his experts. Instead, Brazier has provided this court only with unsworn letters from each expert. (See Letter from Jay W. Dankner to Court of 5/6/04 ("Dankner Letter")) The submission of unsworn letters is an "inappropriate response" to a summary judgment motion, and factual assertions made in such letters are "properly disregarded by the court." United States v. All Right, Title and Interest in Real Property and Appurtenances, 77 F.3d 648, 657-68 (2d Cir. 1996). If the information in these letters were helpful to Brazier's position, this court might allow him to resubmit them in admissible form, but no such accommodation is necessary here because, as will be explained in Part II, the information in these letters does not establish that Brazier's experts' testimony is sufficiently reliable to be admissible under Rule 702. The shortcoming of all of these presentations, even if sworn, is that none of them contains data focusing specifically on whether a child over the age of 3 is likely to choke on a ball of any particular size, let alone data that in any way speaks to the size of the ball at issue here.

  II.

  Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

 Id. District courts have "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand" Amorgianos v. Nat'l' R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). When deciding whether expert testimony rests on a reliable foundation, a court should consider the three indicia of reliability identified in Rule 702. Id. An expert's testimony should be admitted only if that expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 265-66 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). If a court concludes that the data, methodology, or studies on which an expert's opinion is based are simply inadequate to support the expert's conclusions, that opinion must be excluded under Rule 702. Id. at 266.

  In its earlier opinion, this court identified five statements by Brazier's experts — two by Dr. Rimell, two by Doppelt, and one by Reiner — which could be read to suggest that it is reasonably foreseeable that a child over the age of 3 would put a Pokemon Power Bouncer in his mouth and asphyxiate. Brazier, 2004 WL 515536, at *9. Because Brazier can survive summary judgment only by showing that a reasonable jury could find it reasonably foreseeable that a child over the age of 3 would choke on a Pokemon Power Bouncer, I assume arguendo, on the basis of these experts' statements, that each expert is willing to testify that such an accident could reasonably have been foreseen. Because these experts' opinions must satisfy the reliability requirements of Rule 702, they are admissible only if they (1) are based on sufficient facts or data, (2) are the product of reliable principles and methods, and (3) result from the reliable application of those principles and methods to the facts of the case. Fed.R.Evid. 702. None of the opinions at issue here satisfies these requirements.

  A. Dr. Frank L. Rimell

  In his affidavit, submitted in response to defendants' motion for summary judgment, Dr. Rimell explained that the conclusions in that affidavit were "based upon [his] personal knowledge, experience and reliance on published literature, standards and statistics." (Affidavit of Frank L. Rimell, M.D. ("Rimell Aff.") ¶ 2) Apart from repeated references to an article*fn1 he published in the Journal of the American Medical Association ("JAMA"), Dr. Rimell does not further explain the basis for his conclusions in the affidavit or in his attached expert report. (See id. ¶¶ 6-7, 9; id. at Ex. B) In his unsworn letter to the court, Dr. Rimell again identifies the JAMA article as a basis for his opinions and cites certain data described in the article, but he provides no further information about the data or methodology that led him to his conclusions. (Dankner Letter, Ex. A) Accordingly, this court concludes that the study Dr. Rimell conducted for the JAMA article and the article itself are the only data underlying his conclusion that it was reasonably foreseeable that a child over the age of three would choke on a Pokemon Power Bouncer.

  The JAMA article describes findings and conclusions that Dr. Rimell and his colleagues made after analyzing two sets of data: (1) medical records from the Children's Hospital of Pittsburgh for children who underwent surgery to remove foreign bodies in their aerodigestive tracts, and (2) U.S. Consumer Product Safety Commission ("CPSC") accounts of 449 deaths of children 14 years old or younger between January 1972 and January 1992 that resulted from asphyxiation on man-made items. (Rimell Aff., Ex. C, at 1-2) The article's analysis of the first set of data provides no evidence to support Dr. Rimell's opinion because none of the children treated at the Children's Hospital were listed as choking on balls. (See id. at 2) By contrast, 58 of the 449 deaths reported in the CPSC accounts were caused by children choking on balls (see id.), and so the JAMA article's findings about this set of data deserve a closer look.

  According to the JAMA article, 71% of children who choked on spherical objects were under the age of 3. (Id. at 3) Although this statistic reveals that 29% of the children who choked on spherical objects must have been aged 3 and up, neither the article nor Dr. Rimell explains how many of those children were 3 years old and how many of them were aged 4 and up, which is the age group that is relevant here. Furthermore, the article's description of the study does not reveal whether any of the children aged 3 and older choked on balls, rather than on other spherical objects. Dr. Rimell was given the opportunity to elaborate on the basis for his opinion by providing more details about his own study, but his unsworn letter provides no new information about the statistics presented in the JAMA article, such as how many of the children who choked on spherical objects were over the age of 3 and how many of those spherical objects were balls. If Dr. Rimell had produced data from this study showing that some children over the age of 3 had choked on balls, such facts might provide slender support for the conclusion that it is reasonably foreseeable that a child over the age of 3 would place a Pokemon Power Bouncer in his mouth and choke. However, despite this court's invitation, Dr. Rimell has produced no such data, and he does not otherwise explain how the data from his study support such a conclusion.

  In an attempt to provide a reliable basis for his opinion, Dr. Rimell relies in part on the two regulatory recommendations he and his coauthors made in the JAMA article. (See Dankner Letter, Ex. A, at 2) The authors first suggested that "[e]xtending standards [for toy safety] to include toys intended for use by older children, perhaps those 6 years of age or younger, would decrease the number of children choking on toy products." (Rimell Aff., Ex. C, at 4) This court does not doubt that the JAMA article had a reliable basis for making this recommendation; according to Dr. Rimell's unsworn letter, the article was peer-reviewed before publication, and the "JAMA is the most widely read medical journal in the world." (Dankner Letter, Ex. A, at 1) However, this recommendation is a general one, and according to the article itself, is based on the finding that "one third of choking deaths occurred in children older than 3 years." (Rimell Aff., Ex. C, at 4) As discussed above, Dr. Rimell has produced no data showing that any of the children in the study who were older than 3 choked on toy balls, and in the absence of such evidence, this court does not see how a recommendation based on the over-all risk of child asphyxiation supports the inference that toy balls in particular posed a foreseeable risk to children over 3. Dr. Rimell might have illuminated this issue for the court by showing that there is some methodological justification for concluding that ...


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