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