Callahan et al v. Toys "R" US-Delaware, Inc. et al

Filing 101

MEMORANDUM AND ORDER granting in part Defendants' 81 Motion in Limine. Signed by Magistrate Judge J. Mark Coulson on 1/19/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CALLAHAN, et al.,
Plaintiffs

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v.

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Toys “R” US-DELAWARE, Inc.,

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Defendants.

Civil Case No. 15-02815-JMC

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MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTIONS IN LIMINE
Plaintiffs, Virginia Callahan and T.G., brought this action against Defendants, Toys “R”
US-Delaware, Inc. (“Toys ‘R’ US”) and Pacific Cycle, Inc. (“Pacific”), alleging various counts
of strict liability, negligence, and breach of warranty, stemming from an accident involving T.G.
and a bicycle that was manufactured, assembled, and sold by Defendants. Plaintiffs’ defect
theory is based on a manufacturing defect in the minor Plaintiff’s bicycle’s rear brake, causing it
to malfunction. Plaintiffs assert that the defect may have either been present at the time of
original manufacture by Pacific Cycle or at the time of final assembly by Toys ‘R’ US, or both.
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) and
Local Rule 301.4. (ECF Nos. 70, 72.) Now pending before the Court is Defendants’ combined
Motion in Limine. (ECF No. 81.) The motion has been fully briefed (ECF Nos. 81, 90, 92), and
oral argument on the motion was held on January 17, prior to selecting a jury. For the reasons
that follow, and those stated on the record, Defendant’s Motion in Limine is GRANTED in part,
denied in part, and deferred in part.
“A ruling on a motion in limine is no more than a preliminary or advisory opinion that
falls entirely within the discretion of the district court.” Adams v. NVR Homes, Inc., 141 F.

Supp. 2d 554, 558 (D. Md. 2001) (internal citations omitted). “The primary purpose of an in
limine ruling is to streamline the case for trial and to provide guidance to counsel regarding
evidentiary issues.” Id
Defendants’ motion seeks to exclude evidence that falls into several categories, some of
which are conceded by Plaintiffs and are now moot. 1 Those remaining categories of evidence are
discussed in the order in which the parties have organized them in their briefs.
Non-similar accidents, issues, or lawsuits
Defendants ask this Court to prohibit Plaintiffs from offering evidence of other accidents
involving products made and sold by Defendants. Specifically, Defendants seek to exclude seven
complaints/reports of brake failures on Defendants’ bicycles that Plaintiffs obtained during
discovery. While Plaintiffs believe that such evidence is relevant to “Defendants' failure to
properly assemble bicycles,” Defendants contend that these cases and reports are too dissimilar
to be probative of that issue, and are as a result unfairly prejudicial.
“Where a party seeks to introduce evidence of other accidents, [he or she] ‘must present a
factual foundation for the court to determine that the other accidents were substantially similar to
the accident at issue.’” Mirchandani v. Home Depot U.S.A., Inc., 470 F. Supp. 2d 579, 583 (D.
Md. 2007) (citing Buckman v. Bombardier Corp., 893 F.Supp. 547, 552 (E.D.N.C.1995))
(emphasis added). “Where a party offers evidence of prior accidents solely to prove notice,
however, ‘the incidents need only be sufficiently similar to make the defendant aware of the

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Defendants seek the exclusion of: evidence relating to Defendants’ assets and attorneys,
evidence of past discovery disputes, and evidence of recalls of other products made or sold by
Defendants. Plaintiffs, however, have noted that they will not introduce evidence as to any of
these. Additionally, Plaintiffs indicated at oral argument that they did not seek admission of 202
Federal cases filed against Pacific Cycle.
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dangerous situation.’” Mirchandani, 470 F. Supp. 2d at 583 (citing Benedi v. McNeil–P.P.C.,
Inc., 66 F.3d 1378, 1386 (4th Cir.1995)) (internal brackets omitted).
As it relates to the seven specific reports or incidents that were disclosed during
discovery, Plaintiffs have not met their burden of showing how these reports are substantially
similar to the alleged incident at issue in this case. In admitting evidence of prior accidents, it is
not enough that those accidents had a similar (albeit unverified) complaint of defect. Rather the
proponent of admitting the evidence must show how these similar defects were the cause of their
respective accidents to the exclusion of other possible factors and causes, such as rider error,
misuse, or improper alterations. Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C.
1995) (“An offer of evidence of other incidents, to support a claim that the present accident was
caused by a defect that also caused the other incidents, requires that the plaintiff establish the
following factors: (1) the products are similar; (2) the alleged defect is similar; (3) causation
related to the defect in the other incidents; and (4) exclusion of all reasonable secondary
explanations for the cause of the other incidents”). These seven reports involve different models
of bicycle than the one involved in the present case, and each describes a different brake
malfunction than the one alleged here. Moreover, these reports provide no discussion as to the
cause of the accidents in those cases, nor do these seven reports implicate Toys “R” US as the
assembler or distributor.
Even if, as Plaintiffs request, this evidence would be admitted for purposes of showing
notice—and are thus viewed under the more liberal standard of sufficient similarity—Plaintiffs
have still not done enough to show how these prior instances were relevant. As noted above,
none of these seven instances allege the same braking malfunction or even that the braking

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system was the proximate cause of the accidents in those cases. As a result, these seven
incidents/reports are inadmissible.
Finally, these complaints are unverified and, according to Defendants at oral argument,
are logged simply for customer service/satisfaction purposes. Such unchallenged and
uninvestigated allegations of defect are not sufficient reliable for admission, particularly when
balanced against the potential to mislead and confuse the jury, and unfairly prejudice
Defendants.
References to Chinese manufacturing and cost/pricing
Next, Defendants state that Plaintiffs should be precluded from making any comments or
implications that the bicycle was of an inferior quality because it was manufactured in China.
“Such commentary on Chinese manufacturing and inferior quality,” Defendants warn, “is
irrelevant to the issue of whether the product was defective” and it potentially raises issues of
ethnic bias. Defendants qualify their request, though, adding that they themselves should be
permitted to “offer evidence that the bicycle in question was sold at a reasonable price,” and that
the price of the bike in question resulted in a certain design and simpler braking system than seen
on other, presumably higher priced, models. Plaintiffs, in turn, respond that they will not argue
that the product was of inferior quality because it was manufactured to China or that sourcing
products in China damages the American economy. But, Plaintiffs note, Defendants should also
be precluded from commenting about the relatively low price of the bicycle in question.
To the extent that either party wishes to introduce evidence that bicycle was of inferior
quality by virtue of its foreign production, such evidence will not be permitted. However, if the
location of manufacture is relevant to Defendant Pacific Cycle’s ability to comply with the
standard of care applicable to bicycle manufacturers, it will be permitted. For example, if

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Plaintiffs have evidence that companies manufacturing remotely have certain duties required by
the standard of care, such evidence will not be precluded Additionally, evidence regarding the
price of the bicycle relevant to its design and manufacturing is permitted if such evidence is
probative of the issue of the complexity of the braking system and the accompanying assembly
instructions. But arguments that a plaintiff buying a product at a particular price point is entitled
to a lesser standard of care or invites a higher likelihood of a manufacturing or assembly issue
are not supported by the law and therefore will not be permitted.
Limiting the scope of expert opinion of Kristopher Macalinao
Defendants seek to limit the testimony of Plaintiffs’ expert witness, Kristopher
Macalinao. Defendants contend that Mr. Macalinao, a bicycle mechanic and store owner, should
not be permitted to testify about the cause of the accident in this case, given that he has no
experience or expertise in the field of accident reconstruction. In their response, Plaintiffs appear
to concede that Mr. Macalinao will not testify as to what specifically caused the accident in this
case. Rather, Mr. Macalinao, who has inspected the bicycle at issue, intends to testify as to the
alleged defect of the braking mechanism in the bicycle, and how such a defect could lead to an
accident like the one experienced by T.G.
The Court will allow Mr. Macalinao to testify on matters related to his expertise,
including, as outlined by Plaintiffs, the alleged defect in the braking mechanism of the bicycle
and whether such a defect could lead to an accident. However, Defendants’ concerns are noted,
and Mr. Macalinao may not testify that any defect in the braking mechanism was, in fact, the
cause of the accident in this case, as he did not see the accident occur nor does he have the
requisite expertise in accident reconstruction to render an expert opinion on that issue from the
other available evidence. The Court notes, however, that it does not view this as fatal to

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Plaintiffs’ case if Plaintiffs can put forth other evidence which, when taken in combination with
Mr. Macalinao’s opinion, establishes that the alleged defect likely caused the accident in this
case.
References to Ready to Ride Program
The next issue concerns evidence of or reference to the “Ready to Ride Program,” which
is a program through which customers of Toys “R” US can purchase pre-assembled bikes from
the store. It appears that Plaintiffs intend to offer evidence of this program in support of their
express warranty theory. However, it was established through discovery that where a customer
purchases an unassembled bike and has that bicycle assembled by store employees—as Plaintiffs
did in this case—such a customer would have not utilized the “Ready to Ride” program. As a
result, Defendants believe, as does this Court, that any mention of this program would be
irrelevant and could mislead the jury into thinking that an express warranty accompanied the
purchase of this bicycle by virtue of a program that Plaintiffs never utilized. Accordingly,
Plaintiffs are not permitted to introduce evidence relating to this program.
There is another “ready to ride” warranty issue, unrelated to the “Ready to Ride” program
referred to above. In their response to the motion in limine, Plaintiffs cite a portion of the Toys
“R” US “standard operating procedures” for assembling bicycles, which states, in relevant part,
that “[a] designated team member must ensure that all assembled bikes are ready to ride.” 2 This
statement, Plaintiffs contend, is relevant to whether or not there was an express warranty from
Toys “R” US, such that the bicycle was ready for use once Plaintiffs left the store with it. At this
juncture, Plaintiffs are not precluded from introducing evidence containing this phrase, as long as

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Plaintiffs do not provide a citation of where this instruction can be found in the
“standard operating procedures.”
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it does not relate to the “Ready to Ride” program discussed above. As to whether such a phrase
establishes a warranty, the Court need not decide that issue yet.
Additional testing on the bicycle
Plaintiffs’ expert, Mr. Macalinao, apparently with the assistance of Plaintiffs’ counsel,
performed the Consumer Product Safety Commission’s (CPSC) ten pound test—which had been
described by Defendants’ expert described during his deposition—on the bicycle in question.
Defendants take issue with any expert opinion that Mr. Macalinao may offer regarding that
replication of CPSC testing because such testing was not timely disclosed to Defense counsel, in
violation of Federal Rule of Civil Procedure 26. The Court agrees.
Following the deposition of Defendants’ expert, Plaintiffs provided an amended
interrogatory response in which they indicated that “Plaintiffs” performed the CPSC ten-pound
test, as described by the defense expert. Defense counsel followed up by asking for a
supplemental disclosure if, in fact, Mr. Macalinao had performed such testing. In response,
Plaintiffs indicated that they were unaware of any additional reports from Mr. Macalinao and
that they themselves had done the testing. Not only does such a failure to disclose violate
Federal Rule of Civil Procedure 26 (a)(2)(A-B), (e), 3 but it prevented Defendants a meaningful
opportunity to conduct discovery regarding such testing, and as a result, they were denied the
chance to determine whether Plaintiffs’ expert was trained in performing the CPSC test, whether
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Ace Am. Ins. Co. v. McDonald's Corp., No. CIV.A. GLR-11-3150, 2012 WL 2523883,
at *2 (D. Md. June 28, 2012) (“Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to
disclose the identity of any witness they may use at trial to present evidence under Federal Rule
of Evidence 702, 703, or 705. Rule 26(a)(2)(B) further requires litigants to produce written
reports for any witness who is retained or specially employed to provide expert testimony in the
case”); see also EEOC v. Freeman, 961 F. Supp. 2d 783, 797 (D. Md. 2013), aff'd in part sub
nom. E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015) (“Rule 26(e) requires that an expert
report be supplemented when a party learns that in some material respect the disclosure or
response is incomplete or incorrect”) (internal citations omitted).
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he had conducted that test previously, whether the scale that they used during the testing was
calibrated, whether the set-up of the test was appropriate, or whether any notes, results or other
documentation was prepared in concert with that testing.
Furthermore, based on the pleadings and oral argument, it appears that Defense counsel
was told that there were no additional reports from Mr. Macalinao and that he would not be
offering additional opinions. As such the Court, pursuant to Federal Rule of Civil Procure 37,
will not allow Plaintiff’s expert to offer any opinions about the CPSC testing. S. States Rack And
Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir. 2003) (“Rule 37(c)(1)
provides that a party that without substantial justification fails to disclose information required
by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule
26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial ... any
witness or information not so disclosed”) (internal citations omitted).
In-court testing of the brake
Defendants also ask this Court to exclude in-court testing of the bicycle by counsel,
experts, parties and members of the jury.
As an initial matter, the Court has some doubt as to whether there will be sufficient
evidence to conclude that the bicycle today—five years after the accident and after assembly and
reassembly of the brake in question—is in the same condition as it was on the date of the
accident. Additionally, it cannot be disputed that the minor Plaintiff herself is not in the same
condition as she was four years ago at age 11, riding the bicycle for the first time (other than a
quick spin around her driveway a year before) on a trail and on an incline. If that cannot be
established, then such in-court testing to prove the function of the brake today does not meet the
basic evidentiary hurdle of relevancy under Federal. Rule of Evidence 401. Barnes v. Gen.

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Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977) (“In order for an experiment of this type to be
admissible in evidence, it is not required that all the conditions shall be precisely reproduced, but
they must be so nearly the same in substantial particulars as to afford a fair comparison in respect
to the particular issue to which the test is directed”) (citing Illinois Central Gulf Railroad
Company v. Ishee, Miss., 317 So.2d 923, 926 (Miss.1975)). It also has the potential to be
overvalued and therefore mislead the jury.
This accident occurred over four years ago, when T.G. was 11 years old. Since that time,
the bicycle has apparently been stored in Plaintiffs’ garage, with no indication as to whether it
has been ridden or regularly maintained. Accordingly, any in-court testing may run into the
problem of whether the bicycle and braking mechanism were in sufficiently similar condition
and that the Plaintiff herself is sufficiently similar to how she was at age 11. It remains to be
seen whether such a foundation can be established. Even if these can be established, however,
the Court has other concerns outlined below.
As it relates to any testing conducted by Plaintiffs’ counsel and Mr. Macalinao that was
performed but not disclosed, for the reasons noted above, this testing will not be allowed in court
as the Court has already disallowed testimony about such testing done prior to the trial.
With regards to inviting members of the jury to squeeze the brake lever of the bicycle and
determine for themselves whether or not the force required to do so equated to ten pounds or
less, the Court finds that such testing would be outside the layperson’s experience and would
potentially be confusing and misleading, and therefore unfairly prejudicial to the jury in violation
of Federal Rule of Evidence 403. Simply because many, if not all, members of the jury may have
had some experiences with riding a bicycle at some point in their lives, it does not mean that they
are qualified to perform a test about the force required to squeeze a brake lever and be able to

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competently compare that force to a government regulation or industry standard. Jurors’ past
bicycle-related experiences and grip strength will likely vary, and counsel will not have the
opportunity to question these jurors on pertinent matters related to that experience. Moreover,
members of the jury may be inclined to value their own evaluation of the brake lever over the
opinion of the testifying expert who has conducted the test many times before. Barnes, 547 F.2d
at 277 (“The problem presented by the use of experiments is the danger of misleading the
members of the jury who may attach exaggerated significance to the test”). Accordingly, the
Court will not allow juror testing of the bicycle.
With regard to Plaintiffs themselves doing in-court testing, Ms. Callahan never tested the
brake lever prior to the accident, and T.G., the only witness who had tested the lever, has since
indicated that she cannot remember what pulling the lever felt like. T.G. DEPOSITION, 52, ECF.
No. 92-1. Obviously, neither is a qualified expert and it would be impermissible to allow either
to testify that the state of the rear brake demonstrates a product defect. But even a lay opinion
offered under Federal Rule of Evidence 701 as to the pressure required to depress the brake
today compares to how it was four years ago (assuming substantial similarity can otherwise be
established) has the requirement that such testimony be rationally based on a witness’s own
perception and the Court is not convinced that any witness’s memory separated by a period of
four years, without more, would provide a sufficient foundation for such testimony or be helpful
to the jury.
Statements by Plaintiffs’ treating physician
Lastly, Defendants anticipate that Plaintiffs will offer statements, made by T.G.’s treating
physicians and dentists to Ms. Callahan, about any pain and sensations that T.G. was

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experiencing. Such statements, Defendants contend, should be prohibited as inadmissible
hearsay.
“Federal Rule of Evidence 803 enumerates twenty-three distinct hearsay exceptions,
under which statements are admitted regardless of whether the declarant is available as a
witness.” Doali-Miller v. SuperValu, Inc., 855 F. Supp. 2d 510, 513 (D. Md. 2012). Therefore,
even though Plaintiff is available, and indeed likely, to testify at trial, any statements she made
about her pain “will be admissible if they fall within one of the exceptions provided in Rule
803.” Id.
Pursuant to “Rule 803(4), a statement that is made for—and is reasonably pertinent to—
medical diagnosis or treatment and that describes medical history; past or present symptoms or
sensations; their inception; or their general cause is not excluded by the rule against hearsay.” Id.
(internal citations omitted). This exception to the hearsay rule is “premised on the notion that a
declarant seeking treatment has a selfish motive to be truthful because the effectiveness of
medical treatment depends upon the accuracy of the information provided.” Id. (internal citations
omitted). “A statement's admissibility under Rule 803(4) is evaluated under a two-part test: (1)
the declarant's motive in making the statement must be consistent with the purposes of
promoting treatment; and, (2) the content of the statement must be such as is reasonably relied on
by a physician in treatment or diagnosis.” Id. at 514 (internal citations omitted).
In light of these principles, and without any additional context as to the statements that
will be attempted to be elicited at trial, the Court cannot categorically say whether or not such
statements will run afoul of the hearsay rule or whether they will be admissible as an exception
under Rule 803(4). Statements that T.G. made about her symptoms and pain could very well be
admissible, as they would presumably fit within the “present symptoms or sensations” portion of

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Rule 803(4). Nonetheless, the Court cautions that the admissibility of such statements will likely
hinge on when they were made, under what circumstances, and to whom were such statements
told. Additionally, the Court notes that testimony from someone other than a treating physician,
dentist, or T.G. herself, about a statement made by T.G. regarding her symptoms and/or pain,
will be evaluated as potentially being hearsay within hearsay. Jacobsen v. Towers Perrin Forster
& Crosby, Inc., No. RDB–05–2983, 2008 WL 782477, at *7 (D.Md. Mar. 20, 2008) (“Hearsay
within hearsay ... refers to a hearsay statement that includes within it a further hearsay statement.
Such statements are subject to the same evidentiary rules as one-level hearsay statements.”).
For the reasons set forth herein, Defendant’s Motion in Limine (ECF No. 81) is
GRANTED IN PART, DENIED IN PART, AND DEFERRED IN PART.
The issue of alleged product misuse
Though not raised by either of the parties directly, the Court wants to give the parties
guidance on the issue of alleged product misuse, to include an alleged failure to follow
instructions.
In Maryland, misuse of the product, including a failure to use the product in the manner
instructed, has several potential uses in a products liability case. Most commonly, this defense
arises in the context of an alleged design defect. Ellsworth v. Sherne Lingerie, Inc., 495 A.2d
348 (Md. 1985) (failure to use fabric meeting certain flammability standards in design of
nightgown); Simpson v. Standard Container Co., 527 A.2d 1337 (Md. App. 1987) (failure of
design to include childproof cap); Lightolier, A Div. of Genlyte Thomas Grp., LLC v. Hoon, 876
A.2d 100 (Md. 2005) (failure to incorporate appropriate thermal cut-off in design of lighting
fixture). In such cases, a finding that the product was used in a manner that was not reasonably
foreseeable or that it was used on contravention of written instructions or warnings can negate a

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finding of defect. The theory in such cases is that the product design is not defective if the
product had been used in a reasonable foreseeable way or in accordance with clear instructions.
See Ellsworth, supra, at 355.
Misuse or failure to follow instructions may also be relevant on the issue of causation.
For example, in the context of an alleged manufacturing defect (such as the instant case), a
plaintiff’s case fails if, notwithstanding the existence of a defect, the alleged injury was not
caused by that defect but instead by a misuse of the product or a failure to follow instructions or
warnings. Id. at 355-356. As the Maryland Court of Appeals noted by way of example in
Ellsworth:
For example, a high speed electric drill may be defective because a manufacturing
defect causes it to short circuit and produce a shock during normal usage. A
plaintiff who attaches a brush to that drill and in attempting to clean his teeth
suffers injury to his mouth from the high speed of the brush will lose because his
misuse is the sole cause of his misfortune, and the defect in the drill is not in any
way related to the harm.
Id.
Misuse or failure to follow instructions may also be relevant in products liability cases that
include a negligence count when such misuse or failure to follow amounts to contributory
negligence. 4
In the present case, based on the proposed instructions submitted, the Court assumes
misuse/failure to follow is a defense theory. That theory has several potential applications, but
the Court has concerns about potential limitations in a misuse defense as applied to a
manufacturing defect case. For example, the Court understands that the defense may want to

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In an appropriate case, misuse and failure to follow might also be relevant to the issue
of assumption of risk, an affirmative defense in both negligence and strict liability cases. See
Ellsworth, supra, at 356.
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contend that Plaintiffs’ failure to follow the instruction—“Ensure front brakes and rear brakes
are working properly”—constitutes a misuse of the product and therefore negates a finding that
the brake is defective notwithstanding that the product allegedly contained such a defect. The
Court has questions as to whether this would be an appropriate application of “misuse” because a
bike containing a manufacturing defect in the brake would not otherwise be made nondefective
by following this general instruction. Stated another way, the product would not necessarily be
safe for use if the instruction was followed because it would still contain a manufacturing defect.
See Simpson, supra (citing Section 402A of the Restatement (Second) of Torts).
Assuming that the instruction itself it not so general as to render it ineffective on its face, 5
although following the instruction may in some cases lead to a discovery of the manufacturing
defect so as to potential avoid injury, and may, in some circumstances, be relevant on the issues
of causation and contributory negligence, such an instruction does not render the product nondefective if followed and so would seem to fall outside the reasoning of Ellsworth, Lightolier,
and Simpson on the issue of the existence of a defect. By contrast, the Defense may also contend
that the bike was too big for T.G. in contravention of the sizing instructions provided in the
owner’s manual and it was this mis-sizing (rather than any issue with the brake) that caused the
injuries in the case, or that T.G. failed to otherwise adequately familiarize herself with the
operation of the bicycle including how to operate the brakes. These applications of misuse to
negate the element of causation would be potentially appropriate in this case if supported by
sufficient evidence. Again, this also might be relevant on the issue of contributory negligence.

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See Lightolier, supra, at 111 where the Court of Appeals explained that warnings on
products that are vague or otherwise difficult to understand shall not generally have the effect of
barring a product liability claim when those warnings are unheeded (citing Klein v. Sears,
Roebuck and Co., 608 A.2d 1276, 1282-83 (Md. App. 1992)).
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To be clear, the Court will still entertain argument on the misuse instruction later in the
case and, of course, trial developments might have an impact on the Court’s preliminary
conclusions above. But the Court does have the concerns expressed above that may impact
whether the instruction if given and, if given, how it is worded.

Dated: January 19, 2017

/s/
J. Mark Coulson
United States Magistrate Judge

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