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BRAZIER v. HASBRO

United States District Court, S.D. New York


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 a particular type of toy poses a foreseeable risk of choking to children over 3 based on fact that such children face some risk of choking in general. However, because Dr. Rimell has provided no such information, this court cannot conclude that the JAMA article's recommendation about children between the ages of 3 and 6 provides a reliable basis for the opinion at issue here.

  The JAMA article also recommended increasing the minimal diameter of perfectly spherical objects that were intended for children from 1.25 inches (3.17 centimeters) to 1.75 inches (4.44 centimeters). (Id.) This recommendation appears to be based on the discovery that no child of any age had choked on a spherical object that had a diameter larger than 1.75 inches. (Id.) However, despite Dr. Rimell's reiteration of this point in his unsworn letter (see Dankner Letter, Ex. A, at 2), this court does not see how the JAMA article's recommendation about increasing the minimum diameter of spherical objects provides any basis for the particular conclusion that it is foreseeable that a children over the age of 3 will choke on a ball of a particular size. Because Dr. Rimell does not explain how this recommendation would support such a conclusion, this recommendation does not by itself provide a basis for the opinion at issue.

  For the reasons discussed above, Dr. Rimell has not explained how or why the study described in the JAMA article supports the conclusion that the Pokemon Power Bouncer posed a foreseeable risk to children over the age of 3, and he has provided no other factual or methodological basis for this opinion. This opinion therefore is not sufficiently reliable under the requirements of Rule 702 and must be excluded at trial.

  B. Paul Doppelt

  In his affidavit, Doppelt states that the opinions contained therein are "based upon [his] personal knowledge, experience and reliance on published literature, standards and statistics," and he notes also that he reviewed materials relating to this case, including deposition transcripts and exhibits. (Affidavit of Paul Doppelt ("Doppelt Aff.") ¶¶ 2-3) Neither Doppelt's affidavit nor his subsequent unsworn letter provides substantial detail about the data or methodology on which his opinions are based, but his preliminary expert report, attached as an exhibit to his affidavit, cites two documents in support of his conclusion that the Pokemon Power Bouncer "presents a risk of a choking mishap for children of the specified age of 4 years and up," in part because "children of any age will put things in their mouths." (See id., Ex. B, at 2) However, neither document contains any facts or data to support this opinion, must less sufficient facts or data to make this opinion reliable enough to be admissible under Rule 702.

  The first document to which Doppelt refers is "The Handbook of Child Measurements and Capabilities," issued by the Consumer Safety Unit of the Department of Trade and Industry. This document describes the average maximum distance between the upper and lower teeth for children of different ages — approximately 1.85 to 2.04 inches for children between the ages of 4 and 6. (Doppelt Aff. Ex. B, Encl. 2, at 3) This information does not support the conclusion that it would be foreseeable for a child over the age of 3 to choke on a toy ball; instead, it shows only that it would be physically possible for such a child to insert a 1.72-inch ball into his mouth. The simple fact that a child of that age could do such a thing, however, does not support the conclusion that a child actually would. Because The Handbook provides no information to support the latter conclusion, it does not provide a sufficient factual basis for Doppelt's opinion.

  The second document, which is the only support Doppelt cites for his claim that "children of any age will put things in their mouths," is a paper by Dr. Sharee Pepper entitled "A Physiological Review of Toys Causing Choking in Children" that was prepared in 1989 for the CPCS. (Doppelt Aff., Ex. B, Encl. 3) In the paper's Executive Summary, Dr. Pepper explains that her report analyzes "[c]hoking incidents from 1984 to the present in which a child under three years old choked on a toy appropriate for children under three." (Id. at 2) As might be expected from this description, the excerpts of the paper which Doppelt appends to his expert report do not mention children over the age of 3 at all, let alone provide information to support the conclusion that such children face a foreseeable risk of choking on toy balls. (See id.)

  Apart from these two documents, Doppelt cites no data or methodology to support his conclusion that it was reasonably foreseeable that a child over the age of 3 would choke on a Pokemon Power Bouncer. Several articles that are attached to Doppelt's expert report discuss choking incidents in children of various ages and describe the choking dangers that various objects pose, but none of these articles provides specific information about the foreseeability of a child over the age of 3 choking on a toy ball.*fn2 (See Doppelt Aff., Ex. B, Encls. 4, 9, 10) As the above description indicates, none of the documents on which Doppelt relies provides sufficient factual support for his opinion that the Pokemon Power Bouncer posed a foreseeable risk of choking to children over 3, and Doppelt has not identified any principles or methods that led him to such a conclusion. Accordingly, Doppelt's opinion that it was reasonably foreseeable for a child over the age of 3 to choke on a Pokemon Power Bouncer is not sufficiently reliable and must be excluded under Rule 702.

  C. Bert L. Reiner

  Like Brazier's other experts, Reiner explains in his affidavit that the opinions contained therein are "based upon [his] personal knowledge, experience and reliance on published literature, standards and statistics," as well as on his review of documents related to this case. (Affidavit of Bert L. Reiner ("Reiner Aff.") ¶¶ 2, 4) As Reiner explains in his affidavit, he believes "that a `reasonably foreseeable abuse' [of the Pokemon Power Bouncer] would include a child placing this ball in his or her mouth. . . ." (Id. ¶ 11) Assuming arguendo, on the basis of this statement, that Reiner is prepared to testify that it is reasonably foreseeable that a child over the age of 3 would place a Pokemon Power Bouncer in his mouth, such testimony will be admissible only if it is based on sufficient facts and reliable methods. See Fed.R.Evid. 702. Reiner has identified no such facts or methods in his affidavit, expert report, or unsworn letter to the court.

  Neither Reiner's affidavit nor his expert report identifies facts or methods which support the conclusion that a child over the age of 3 faces a reasonably foreseeable risk of choking on a Pokemon Power Bouncer. In an attempt to buttress this opinion, Reiner cites two new documents in his unsworn letter to the court, but neither document supports the relevant opinion. First, Reiner, without explanation, attaches to his unsworn letter Document #5076 from the CPSC, which warns caregivers "that young or handicapped children can choke on . . . small balls and that they should not be available to them." (Dankner Letter, Ex. C, at 3) Assuming arguendo that this warning predated Robert Brazier's death, it still provides no basis for concluding that defendants reasonably should have foreseen that the Pokemon Power Bouncer posed a choking danger to children over the age of 3. Indeed, the document simply advises caregivers to keep small balls away from children who are young or handicapped and reiterates the requirement that small toy balls be labeled with the following cautionary statement, which appeared on the packaging of the Pokemon Power Bouncer: "WARNING: Choking Hazard — This Toy is a small ball. Not for children under 3 yrs." (Id.) Because Document #5076 implies that any danger posed by small balls is averted by the presence of such a warning, it does not support the conclusion that defendants should have foreseen that the Pokemon Power Bouncer, which came packaged with such a warning, would nonetheless pose a danger to children over 3.

  The second document that Reiner cites in his unsworn letter is a CPSC report on observations of mouthing behavior by children.*fn3 (Id. at 2) The study described in this report evaluated mouthing behavior in children under the age of 3 (Supplemental Affidavit of Shelley Waters Deppa, Ex. B, at 1), and it contains no information about any mouthing behavior in children over the age of 3. Accordingly, because it does not present any data showing that it is foreseeable for a child over the age of 3 to insert a ball in his mouth, this report does not provide a factual basis for such an opinion. Reiner identifies no other data or methodology to support his conclusion that it is reasonably foreseeable that a child over 3 would choke on a toy ball, and so this opinion must be excluded because it does not satisfy the reliability requirements of Rule 702 of the Federal Rules of Evidence.

  * * *

  As explained above, none of Brazier's experts may, testify that the Pokemon Power Bouncer posed a foreseeable risk of choking to children over the age of 3 because none of the experts has identified data which focuses specifically on whether a child over the age of 3 is likely to choke on a ball of any particular size. Because this expert testimony is thus inadmissible under Rule 702 of the Federal Rules of Evidence and Brazier has identified no other evidence which tends to show that it was reasonably foreseeable for a child over 3 to choke on a Pokemon Power Bouncer, defendants' motion for summary judgment is granted as to Brazier's remaining negligence claim. Accordingly, this action is dismissed, and I need not address defendants' argument that the proximate cause of Robert Brazier's death was his developmental delay, not the size of the Pokemon Power Bouncer.

  SO ORDERED.


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