Sabo v. Fiskars Brands, Inc.

Filing 105

ORDER ADOPTING REPORT AND RECOMMENDATION; denying 66 Defendant's Motion for Summary Judgment; denying 68 Defendant's Motion to Strike; administratively denying 71 Defendant's Motion in Limine; denying 79 Defendant's Motion to Strike; denying 81 Defendant's Motion to Strike; incorporating and adopting 100 Report and Recommendations. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ZELJKO SABO,
Case No. 2:12-CV-00503-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
FISKARS BRANDS, INC., dba
GERBER LEGENDARY BLADES, and
DOES 1 through 50, inclusive,
Defendants.

INTRODUCTION
On July 31, 2014, Chief United States Magistrate Candy W. Dale issued a Report
and Recommendation (the “Report”) in this matter. The Report sets forth the underlying
factual and procedural history of the case and recommends that the Defendant’s Motion
for Summary Judgment and related Motions to Strike be denied. (Dkt. 100.) Any party
may challenge a Magistrate Judge’s proposed recommendation by filing written
objections to the Report within fourteen days after being served with a copy of the same.
28 U.S.C. § 636(b)(1) and District of Idaho Local Rule 72.1(b). The Defendant in this

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

case has filed objections to the Report. (Dkt. 102.) The matter is now ripe for the Court’s
consideration. See Local Civil Rule 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” see
also Fed. R. Civ. P. 72(b). Where the parties object to a report and recommendation, this
Court “shall make a de novo determination of those portions of the report which objection
is made.” Id. Where, however, no objections are filed the district court need not conduct a
de novo review. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003),
the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)).
In this case, objections were filed so the Court has conducted a de novo review of
the Report as to those portions to which Defendant has objected and has also reviewed the
Report for clear error on the face of the record. Having done so, the Court finds as
follows.
DISCUSSION
This is a products liability case involving a Gerber RZ700 flashlight.1 The
Plaintiff, Zeljko Sabo, alleges on September 12, 2009 he had the flashlight in his left front
pants pocket when the flashlight “spontaneously combusted” sending tiny glass shards in
the air and a white or silver colored and chemical-smelling fumes and smoke around his
face. (Dkt. 49 at ¶ 13.) Mr. Sabo alleges he suffered a burn to his left thigh and an injury
to his left eye.
Two days later, on September 14, 2009, Mr. Sabo went to the emergency room
complaining of pain in his left eye and left thigh. Over time, beginning in September of
2009 through approximately May of 2012, Mr. Sabo was seen by several doctors for the
irritation/discomfort in his left eye. Mr. Sabo eventually filed this action against

1

The facts of this case are stated in greater detail in the Report which this Court adopts and
incorporates here.
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Defendant, Fiskars Brands, Inc. (“Fiskars”), who designed, manufactured, and/or
distributed the Gerber RX700 flashlight and Gerber CR123A lithium batteries. (Dkt. 1,
49.) The claims raised are for 1) strict products liability – manufacturing/design defect, 2)
strict products liability – inadequate warning/failure to warn, 3) negligence –
design/manufacture, and 4) negligence – inadequate warning/failure to warn. (Dkt. 49.)
Fiskars then filed the instant Motion for Summary Judgment and related Motions
to Strike which are addressed in the Report. (Dkt. 66, 68, 71, 79, 81, 100.) Fiskars’
objections to the Report argue it 1) incorrectly concluded that questions of fact exist as to
whether the product was defective and as to causation and 2) failed to adequately consider
the Motions to Strike. (Dkt. 102.) The Court finds as follows.
1.

Motion for Summary Judgment
A.

Proof of Product Malfunction or Defect

In its objections, Fiskars argues the Report improperly concluded that questions of
fact exist as to whether the flashlight malfunctioned or was defective. Fiskars challenges
that Mr. Sabo’s expert testimony, that of Dr. Samuel Levy, is speculative and lacks
sufficient foundation as to the nature or cause of any defect in the flashlight. (Dkt. 102 at
3.) In addition, Fiskars argues the Report improperly relied upon Mr. Sabo’s own lay
testimony of the incident as proof of the malfunction. (Dkt. 102 at 4.)
Fiskars does not object to the law stated in the Report that requires the plaintiff in a
product liability case to show that the product in question was defective. (Dkt. 102 at 24.) Instead, Fiskars’ objection goes to the substance of the Report’s conclusion itself.
ORDER ADOPTING REPORT AND RECOMMENDATION - 4

Fiskars disagrees with the Report’s determinations regarding the sufficiency of the expert
testimony and Mr. Sabo’s lay testimony on the question of whether the product was
defective – i.e. that the flashlight exploded and there is no other reasonable explanation
for the explosion other than a manufacturing defect.2 This Court has reviewed de novo the
materials provided by both sides in their filings on the summary judgment motion and
finds as follows.
As to Dr. Levy’s opinions, the Court finds Fiskars’ challenges go to the weight and
credibility of his testimony. (Dkt. 66 at 4-5) (Dkt. 78 at 8-10) (Dkt. 79 at 10-12.) While
Fiskars maintains that Dr. Levy’s testimony lacks sufficient foundation and is speculative,
the Court agrees with the Report’s conclusion that the evidence presented at this stage of
the case is sufficient to give rise to a genuine issue of material fact as to the question of
whether the flashlight malfunctioned as a result of a manufacturing defect. Fiskars’
arguments concerning Dr. Levy’s testimony raise a Daubert challenge questioning the
admissibility of his expert testimony.
The admissibility of the expert’s testimony is admissible so long as it is “based on

2

Fiskars disputes the Report’s statement that it has conceded that the cause of the battery venting
was due to a short circuit caused by a loose screw bridging the positive terminal of the battery to the
negative body of the flashlight, and that improper insertion of the holding screw caused the incident.
(Dkt. 102 at 3.) In its initial briefing on the Motion, Fiskars made “temporary concessions” regarding the
malfunction solely for purposes of the summary judgment motion essentially acknowledging that on
September 12, 2009 something happened to cause the batteries in the flashlight to become heated and one
battery vented some of the contents of its interior components into the interior of the flashlight body.
(Dkt. 66-1 at 2.) In that briefing, Fiskars maintained its argument that there is insufficient foundation for
Dr. Levy’s opinion as to what caused the battery venting event. (Dkt. 66-1 at 3.) Although it may have
misstated Fiskars’ concession, the Report properly addressed Fiskars’ argument concerning Dr. Levy.
(Dkt. 100 at 15-18.)
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scientific techniques and advanced a material aspect of the government's case.” See
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); United States
v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). To the extent a party questions the validity
of an expert’s testimony or opinion, this is a question of weight and credibility that
properly went to the jury. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th
Cir. 1998) (noting that faults in an expert's use of a specific methodology go to the
weight, not admissibility of the testimony).
Federal Rule of Evidence 702 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.
The Ninth Circuit has recognized that Daubert requires the district court to
determine whether the expert's testimony reflects “scientific knowledge derived by the
scientific method” and whether his or her work product amounts to “good science.”
Sherwood, 98 F.3d at 408 (citing Daubert). The district court must then determine
whether “the proposed expert testimony is ‘relevant to the task at hand,’” meaning that it
logically advances a material aspect of the proponent’s case. Id. The following factors
may be relevant to the above inquiry: 1) whether the theory or technique the expert
employs is generally accepted in the scientific community; 2) whether it has been
subjected to peer review and publication; 3) whether it can be and has been tested; and 4)
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whether the known or potential rate of error is acceptable. Id. (citing Daubert, 509 U.S. at
591-93). These factors are non-exhaustive and recognize that not every factor will be
applicable in every case. Id.
Expert testimony is admissible pursuant to the Federal Rules of Evidence,
primarily Rule 702. Domingo ex rel. Domingo v. T.K., M.D., 276 F.3d 1083 (9th Cir.
2002) (citing Daubert, 509 U.S. at 589). Under Daubert, the district court acts as a
“gatekeeper,” excluding “junk science” that does not meet the standards of reliability
required under Rule 702. Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997).
The trial court accomplishes this goal through a preliminary determination that the
proffered evidence is both relevant and reliable. Daubert, 509 U.S. at 589-95.
While evidentiary hearings might help the district court to conduct an adequate
Daubert analysis, courts are not required to hold such hearings prior to trial in order to
discharge their Daubert gatekeeping function. See United States v. Alatorre, 222 F.3d
1098, 1100-02 (9th Cir. 2000) (“The trial court must have the same kind of latitude in
deciding how to test an expert's reliability, and to decide whether and when special
briefing or other proceedings are needed to investigate reliability, as it enjoys when it
decides whether or not that expert's relevant testimony is reliable....”) (quoting Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999)). What is required is that the Court allow
counsel “to explore the relevance and reliability of the proposed testimony” prior to its
admission. Id.
In this case, the Court has reviewed the materials in the record concerning Dr.
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Levy’s testimony and finds, for purposes of this motion the Report appropriately
considered Dr. Levy’s testimony and opinions.3 Having conducted a de novo review of
the same, the Court is in agreement with the Report’s conclusion that Dr. Levy’s report
gives rise to genuine issues of material fact as to the existence of a product defect. (Dkt.
100 at 16.)
In addition to Dr. Levy’s testimony, the Report also relied upon Mr. Sabo’s lay
testimony as circumstantial evidence demonstrating that a malfunction occurred. (Dkt.
100 at 16-15.) Fiskars objects arguing this lay testimony is insufficient and that neither
Mr. Sabo’s lay testimony nor any expert testimony has been offered that goes to show a
manufacturing defect caused the flashlight to malfunction and/or that would give rise to
an inference of a malfunction because there are no other likely causes for the malfunction.
(Dkt. 102 at 4.)
To prevail on his claim, Mr. Sabo must prove that the flashlight was defective and
must also negate other causes for the defects. Hansen-Rice, Inc.v. Celotex Corp., 414
F.Supp.2d 970, 974 (D. Idaho 2006) (citing Murray v. Farmers Insurance Co., 796 P.2d
101, 106 (Idaho 1990)). “A defect may be shown by circumstantial evidence ‘without the
benefit of expert testimony.’” Id. (quoting Murray). “However, expert testimony may be
required when the facts are beyond the experience of most jurors.” Id. (citing Jensen v.
Am. Suzuki Motor Corp., 35 P.3d 776, 780-81 (Idaho 2001)).

3

The Court will, however, reserve its ruling on the admissibility of such testimony at trial.

ORDER ADOPTING REPORT AND RECOMMENDATION - 8

Here, the Court is in agreement with the Report’s analysis and conclusion that Mr.
Sabo’s lay testimony is circumstantial evidence giving rise to the inference that the
product malfunctioned sufficient to present a genuine issue of material fact in this case.
Additionally, the Court finds no error in the Report’s statement that flashlights do not
normally spontaneously combust while in the off position in one’s pocket. (Dkt. 100 at
15, 17.) That statement goes to the Report’s discussion regarding circumstantial evidence
of a malfunction wherein the Report accurately articulated Mr. Sabo’s burden to show the
flashlight malfunctioned and there is no other reasonable explanation for the malfunction
other than a manufacturing defect. (Dkt. 100 at 15.)
For the foregoing reasons, the Court denies Fiskars’ objections to the Report
concerning the conclusion that there is a genuine issue of material fact as to the question
of whether there was a product defect.
B.

Causation

Fiskars objects to the Report’s conclusion that a question of fact exists on the issue
of causation. Fiskars does not challenge the law cited in the Report but instead argues the
Report improperly relied upon lay witness testimony, being that of Mr. Sabo and his wife
Camille Lang, in finding a genuine issue of material fact exists as to whether the claimed
eye injury, trigeminal neuralgia, was caused by the product defect/malfunction. (Dkt. 102
at 4-7.) Because the injury is complex and not the type of injury about which a layperson
can reasonably testify, Fiskars maintains that expert testimony is necessary to show
causation. (Dkt. 102 at 5-6.) To that end, Fiskars raised a Daubert challenge to the expert
ORDER ADOPTING REPORT AND RECOMMENDATION - 9

testimony offered in support of causation, arguing that testimony is merely speculative
and without adequate foundation. (Dkt. 102 at 5-6.) Here too, this Court has reviewed de
novo the materials provided by both sides in their filings on the summary judgment
motion as to this question and finds as follows.
The Court disagrees with Fiskars’ objection that the Report’s determination as to
the causation question was based on lay testimony. (Dkt. 102 at 5.) The Report
considered the lay testimony of Mr. Sabo and his wife to the extent they offered
descriptions of what they witnessed of the flashlight malfunctioning event and Mr. Sabo’s
subsequent symptoms involving eye pain to his left eye following the incident. (Dkt. 100
at 19-22.) The Report then described the various treating physicians that Mr. Sabo saw for
his eye pain as well as the proffered experts. While noting the shortcomings in the
objective medical evidence as raised by Fiskars, the Report’s conclusion regarding the
causation element ultimately rested on Mr. Sabo’s subjective complaints and the objective
medical evidence. (Dkt. 100 at 20-21.) The Court finds the Report’s consideration of the
lay testimony and that of the treating physicians to have been appropriate for purposes of
providing subjective evidence and testimony of the facts surrounding the flashlight
malfunction and Mr. Sabo’s subsequent complaints of eye pain.
The crux of this objection appears to go more towards the sufficiency of the
experts’ testimony as to the causation element. In particular, Fiskars’ objection challenges
the testimony of Dr. Arthur Kowell as lacking in foundation and speculative. Fiskars also
raises a direct Daubert challenge. (Dkt. 102 at 5-6.) In the materials filed in relation to the
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Motion, Fiskars also challenged the testimony of Dr. David Aizuss, and Dr. Neil
Spingarn. (Dkt. 66, 68, 79.) This Court has reviewed these materials challenging the
sufficiency of these experts in light of Fiskars’ arguments. Having done so, the Court
again finds that at least at this stage of the proceeding Fiskars’ challenge as to the validity
of these experts’ testimony and opinions is a question going to their weight and
credibility. Kennedy, 161 F.3d at 1230-31. Thus, the Court finds the Report properly
considered the same and this Court is in agreement with the Report that a genuine issue of
material fact has been shown as to the causation element sufficient to overcome summary
judgment. That being said, the Court makes no ruling at this time as to the admissibility
of these experts’ opinions and/or testimony at trial.
C.

Damages

Fiskars argues Mr. Sabo’s lay testimony alone is insufficient to create a material
issue of fact regarding his entitlement to future lost wages on the basis of total disability.
(Dkt. 102 at 7.)4 In particular, Fiskars argues because Mr. Sabo’s alleged injury is
complex and not one within the ordinary expertise and experience of a layperson, Mr.
Sabo’s own testimony is insufficient to support his claim for lost future wages. Fiskars
further asserts that Mr. Karl J. Schulze’s opinion regarding economic injuries to include
lost future wages in the form of total disability is unsupported. (Dkt. 102 at 8.)

4

Fiskars correctly notes that it agrees with the Report’s conclusion that Mr. Sabo may be able to
present evidence at trial regarding medical and other costs related to his claimed injury; pointing out that
its summary judgment argument is limited to seeking dismissal of the lost future wages claims. (Dkt. 102
at 8.)
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There is no objection to the legal standard as stated in the Report and this Court
agrees and adopts the Report’s recitation of the law in Idaho for damages for lost earnings
and future wages. (Dkt. 100 at 22.) Thus, to prove damages for lost future wages/earnings
Mr. Sabo must show those damages with reasonable certainty the extent to which his
future earning power was impaired. Such a showing cannot be based upon speculative
evidence or conjecture.
In support of his claim, Mr. Sabo has offered Mr. Schulze’s report claiming
economic damages for his lost wages for the period of time following the incident in
September of 2009 until Mr. Sabo retired at the predicted age of 70 years old in 2026.
(Dkt. 74, Ex. P.) As far as Mr. Schulze’s report is concerned, the Court finds any
challenge to the figures stated therein go to the weight and credibility of the analysis.
Fiskars’ objection here goes more to the lack of evidence showing Mr. Sabo is
permanently disabled and unable to not only work as a welder but from doing any income
producing work. (Dkt. 102 at 8.) The Report concluded that Mr. Sabo could offer lay
testimony to support his claim that he can no longer work as a welder and that, coupled
with Mr. Schulze’s report calculating future damages, was sufficient to overcome
summary judgment. (DKt. 100 at 2-24.) This Court agrees.
Mr. Sabo can testify as to his current condition as well as his work as a welder. See
Fed. R. Evid. 701 and Bailey v. Sanford, 86 P.3d 458, 465 (Idaho 2004). For purposes of
this Motion, the fact that Mr. Sabo’s eye condition, trigeminal neuralgia, may be more
complex than other types of injuries does not eliminate the relevance of his testimony
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both as to the severity of the condition as well as his own personal knowledge of the
demands of his occupation.5
Additionally, other potential witnesses may have testimony helpful to the jury
regarding the condition of trigeminal neuralgia and its physical impact on Mr. Sabo, such
as retained expert neurologist Dr. Kowell, as well as Mr. Sabo’s treating physicians who
could testify as to Mr. Sabo’s particular injury. Fiskars argued on summary judgment that
Dr. Kowell’s testimony should be disregarded as it lacks foundation. (Dkt. 66-1 at 15.) As
previously determined, at this stage the Court finds Dr. Kowell’s testimony to be
sufficient to be considered on this Motion. Whether his testimony is ultimately allowed at
trial is not determined at this time.
In sum, the Court finds the testimony of the treating physicians and Dr. Kowell
regarding Mr. Sabo’s eye condition together with Mr. Sabo’s own lay testimony and Mr.
Schulze’s report are sufficient, at this stage, to give rise to a genuine issue of material fact
regarding Mr. Sabo’s claim for lost future wages.
2.

Evidentiary Objections
A.

Motions to Strike

Fiskars objects to the Report’s failure to consider a majority of the evidentiary
objections it presented on summary judgment because it concluded that expert testimony
was not necessary to create a genuine issue of material fact as to the existence of a

5

In so ruling, the Court makes no determination as to whether any such particular testimony is
admissible at trial.
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product defect, causation for the neurological condition, and damages for lost future
wages. (Dkt. 102 at 9.)
The Report considered Fiskars’ Motions to Strike and resolved the same on the
basis that it did not rely upon the objected to materials in reaching its conclusion on
summary judgment. (Dkt. 100 at 25-26.) The Court agrees with the Report’s
consideration of the Motions to Strike given the objected to materials were not relied
upon. To the extent this objection goes to the substance of the evidence at issue in the
Motions to Strike, the Court has addressed those matters above.
B.

Judicial Notice

Fiskars further argues the Report erred in granting Mr. Sabo’s request to take
judicial notice of Administrative Law Judge Donna Shipps’ decision (“ALJ decision”).
Fiskars claims the Report incorrectly concluded that it could take judicial notice of the
ALJ decision under Federal Rule of Evidence 201(a) and (b) for purposes of summary
judgment and, further, that the ALJ decision should not be admissible at trial as evidence
supporting Mr. Sabo’s claim for total disability.
On January 17, 2013, ALJ Shipps issued an Order and Decision concerning Mr.
Sabo’s application for social security benefits. (Dkt. 74-11, Ex. M.) That decision found
that Mr. Sabo had been “disabled” since December 1, 2009 as that term is defined in the
Social Security Act. The Report states that it did not rely upon the ALJ’s decision but
goes on to conclude that the court may take judicial notice of an administrative law
judge’s decision pursuant to Rule 201. (Dkt. 100 at 26-27.) On that basis, the Report
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overruled Fiskars’ objection and granted Mr. Sabo’s request.
Rule 201 governs judicial notice of an adjudicative fact and provides that a “court
may judicially notice a fact that is not subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be accurately
and readily determined from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b).
Fiskars argues the facts relied upon in ALJ Shipps’ opinion are in dispute in this
litigation as well as the conclusion as to the ultimate liability issue – whether Mr. Sabo
suffered a permanent and totally disabling injury resulting from a defect/malfunction of
the flashlight. (Dkt. 102 at 10.) Thus, Fiskars maintains that Mr. Sabo cannot use the ALJ
decision, instead of an expert, to prove causation or damages of lost future wages.
It is true that under Rule 201 the Court can take judicial notice of an adjudicative
fact that is not subject to reasonable dispute if it is generally known or can be accurately
and readily determined. Thus, the Court can take judicial notice of the undisputed fact
that the ALJ decision exists but not the truth of the facts recited therein as those matters
are in dispute in this case. See Transmission Agency of N. Calif. v. Sierra Pac. Power Co.,
295 F.3d 918, 924 n. 3 (9th Cir. 2002); Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th
Cir. 2001), overruled on other grounds by 307 F.3d 1119, 1125-26 (9th Cir. 2002). With
that clarification, the Court finds the Report is not in error in its conclusion concerning
judicial notice of the ALJ decision for purposes of this Motion. Again, the ALJ decision
was not relied upon in ruling on the Motion for Summary Judgment. The Court makes no
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ruling at this time as to whether the ALJ decision would be admissible at trial.6
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 100) shall be INCORPORATED by reference and ADOPTED
in its entirety as stated herein and the Court ORDERS as follows:
1)

Defendant’s Motions for Summary Judgment (Dkt. 66) is DENIED as
stated herein.

2)

Defendant’s Motions to Strike (Dkts. 68, 79, 81) are DENIED.

3)

Defendant’s Motion in Limine (Dkt. 71) is ADMINISTRATIVELY
DENIED. Defendant is granted leave to renew the same, if necessary, upon
the resetting of any trial date in this matter.

DATED: September 2, 2014

Honorable Edward J. Lodge
U. S. District Judge

6

The admissibility of this document, as well as other evidence, at trial has been raised in a
Motion in Limine. (Dkt. 71.) For administrative purposes only and in light of the upcoming settlement
conference, the Court will deny the Motion in Limine at this time but will grant Fiskars leave to renew the
Motion based upon the briefing already submitted in the event the settlement conference is unsuccessful
and a new trial date is set.
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