Ribeiro et al v. Baby Trend, Inc.

Filing 797

MEMORANDUM AND ORDER - IT IS ORDERED: The parties' motions in limine (Filing Nos. 652, 655, 657, 658, 662, 664, 665, 666, 670, 672, 675, 677, 678, 683, 714, 717, and 727) are granted in part and denied in part as set forth in this order. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

FRANCO RIBEIRO, as individuals and as
next friends and biological parents of
Lucas Ribeiro, an infant; and DEANNA
RIBEIRO, as individuals and as next
friends and biological parents of Lucas
Ribeiro, an infant;

8:12CV204
MEMORANDUM AND ORDER

Plaintiffs,
v.
BABY TREND, INC., a corporation; MARK
SEDLACK, MILLENIUM DEVELOPMENT
CORP., INDIANA MILLS &
MANUFACTURING INC., LERADO
GROUP CO., LTD., LERADO GROUP
(HOLDING) COMPANY, LTD., LERADO
(ZHONG SHAN) INDUSTRIAL CO., LTD.,
LERADO CHINA LIMITED, LERADO H.K.
LIMITED, MAXI MILIAAN B.V., and
DOREL INDUSTRIES, INC.,
Defendants.

This matter is before the court on the parties’ motions in limine. Filing Nos. 652,
655, 657, 658, 662, 664, 665, 666, 670, 672, 675, 677, 678, 683, 714, 717, and 727.
This is a products liability action set for trial on April 24, 2017.
I.

LAW
Although the motion in limine is an important tool available to the trial judge to

ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial
judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to
defer ruling until trial, when the trial judge can better estimate the impact of the evidence
on the jury.

Id.

To the extent that a party challenges the probative value of the

evidence, an attack upon the probative sufficiency of evidence relates not to
admissibility but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
The court has reviewed the parties’ submissions and finds as follows.
II.

Defendant’s Motions
A.

Defendants' Joint Motion in Limine to Exclude NHTSA Recall
Investigation of the Flex-Loc, Filing No. 652.

The defendants argue that the NHTSA investigation of a button spring is
irrelevant to the claims in this matter and does not represent a "substantially similar
incident." The plaintiffs argue the information presented in the investigation and the
response to the NHTSA investigation is relevant and directly relates to this litigation.
They contend the recall investigation involved the same model car seat at issue here
and state that the evidence goes to the issue of the defendant’s knowledge of a danger.
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion.

The court will admit the evidence at issue only on a

showing that it is relevant to the issues in the case, and only to the extent that the
relevance of the evidence outweighs its potential to cause prejudice or confusion under
Fed. R. Evid. 403. The court finds the motion can be adequately resolved at trial as an

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objection with a sidebar, or with a review of the evidence outside the presence of the
jury. Accordingly, the court finds that the motion in limine should be overruled at this
time, without prejudice to its reassertion via timely objection to the admissibility of such
evidence at trial.
B.

Defendants' Joint Motion in Limine to Exclude Testimony from
Plaintiffs' Purported Experts Regarding Legal Conclusions and
Defendants' Legal Duty to Plaintiffs, Filing No. 655

Defendants argue that plaintiffs' experts cannot testify as to the obligations or
duties the Defendants owed to plaintiffs during the process of designing and
manufacturing the car seat and its warnings (or lack thereof), including whether a legal
duty exists. They also argue the experts should not be permitted to testify that the
design of the car seat or the instructions/warnings (or absence thereof) rendered the car
seat "unreasonably dangerous" or "defective." Experts routinely opine as to whether a
product is "unreasonably dangerous," such testimony is generally held to be essential to
a product liability action. See Shaffer v. Amada Am., Inc., 335 F. Supp. 2d 992, 998
(E.D. Mo. 2003) (holding that expert testimony opining that product was "unreasonably
dangerous" was necessary for plaintiff's case). Whether a defendant used reasonable
care is a proper topic for qualified experts. Using expert testimony to show this is
proper. See also Bank v. White, No. 4:06CV01475 JLH, 2009 U.S. Dist. LEXIS 94584,
at *37 (E.D. Ark. Sep. 24, 2009) (holding that expert testimony may be inadmissible to
show defendant had a statutory duty but that it was proper regarding defendant's duty of
ordinary care for plaintiff's negligence claim).
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. Defendants’ concerns may warrant a cautionary or limiting
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instruction, but the court cannot determine the ambit of such an instruction at this time.
The court will admit the evidence at issue only on a showing that it is relevant to the
issues in the case, and only to the extent that the relevance of the evidence outweighs
its potential to cause prejudice or confusion under Fed. R. Evid. 403. The court finds
the motion can be adequately resolved at trial, either in a hearing immediately prior to
commencement of the trial, as an objection with a sidebar, or with a review of the
evidence outside the presence of the jury. Accordingly, the court finds that the motion
in limine should be overruled at this time, without prejudice to its reassertion via timely
objection to the admissibility of such evidence at trial.
C.

Defendants' Joint Motion in Limine to Exclude Evidence of
Alleged Pain and Suffering or Other Loss of Lucas Ribeiro's
Siblings, Filing No. 657.

The defendants seek to exclude testimony of the alleged pain and suffering of
Lucas Ribiero’s siblings, arguing. The plaintiffs contend that the motion is an improper
attempt to resolve a legal issue and further argue that the evidence is relevant to the
determination of the physical pain and mental suffering the plaintiff has experienced and
is reasonably certain to experience in the future.
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. Defendants’ concerns may warrant a cautionary or limiting
instruction, but the court cannot determine the ambit of such an instruction at this time.
The court will admit the evidence at issue only on a showing that it is relevant to the
issues in the case, and only to the extent that the relevance of the evidence outweighs
its potential to cause prejudice or confusion under Fed. R. Evid. 403. The court finds
the motion can be adequately resolved at trial, either in a hearing immediately prior to
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commencement of the trial, as an objection with a sidebar, or with a review of the
evidence outside the presence of the jury. Accordingly, the court finds that the motion
in limine should be overruled at this time, without prejudice to its reassertion via timely
objection to the admissibility of such evidence at trial.
The court finds any testimony that discusses the impact of Lucas's injuries with
regard to his siblings Alex and Evelyn or the family at large is admissible and relevant to
demonstrate the extent of the pain, suffering, and loss experienced by Lucas due to his
injuries. Such testimony does not go to Lucas' siblings' pain and suffering but rather to
the pain and suffering of Lucas.
D.

Defendants' Joint Motion in Limine to Preclude Evidence
Regarding Other Incidents, Filing No. 658.

The defendants seek to preclude evidence of other incidents of infants strangling
in an infant car seat. They argue that the prior incidents are not substantially similar to
the incident at issue and also contend that the other incidents were not publicly known
until after the incident at issue.

The plaintiffs argue that the other incidents were

substantially similar to the incident at issue and were documented in reports published
to the general public from the Consumer Product Safety Commission ("CPSC") and the
Center for Disease Control ("CDC") the car seat was manufactured in February 2006.
Further, the strangulation reports published by the CPSC and CDC were also available
to the public, including defendants, between the time that the Baby Trend car seat was
placed on the market (February 28, 2006) and Lucas' strangulation in the car seat (May
27, 2011).

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In the area of product liability litigation, evidence of similar injuries or incidents
“may be relevant to prove a product's lack of safety or a party's notice of defects.” J.B.
Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 445 (8th Cir.2001). Similar
incident evidence also risks raising “extraneous controversial issues,” confusing the
issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the
offering party has the burden of demonstrating that the past incidents are substantially
similar to the incident at issue. Id. at 445. Cross-examination is the appropriate vehicle
for testing the similarities of other accidents to the accident in question. E.g., Kehm v.
Procter & Gamble Mfg. Co., 724 F.2d 613, 626 (8th Cir. 1983) ("[Defendant] had ample
opportunity, of which it availed itself, to rebut the force of the other complaints by
pointing out dissimilarities between the complainers' symptoms and the symptoms of
TSS. It was up to the jury to decide what weight to give the complaints from other
consumers.")
The court will admit the evidence at issue only with proper foundation. The
plaintiffs must show that the incidents were substantially similar to that at issue. At this
stage, the motion is premature.

Evidence of substantially similar prior incidents

generally appears to be relevant to the issues of notice and knowledge of inadequacy of
warnings, the magnitude of the risk, knowledge of defect and the standard of care. The
defendants’ contentions go more to the weight of the evidence than to admissibility.
The court finds the motion can be adequately resolved at trial via a timely
objection with a sidebar. Accordingly, the court finds that the motion in limine should be
overruled at this time, without prejudice to its reassertion at trial.

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E.

Defendants' Joint Motion in Limine to Preclude Use of the "Day
in the Life" Video, Filing No. 662.

Defendants assert that the video’s prejudicial effect outweighs its probative
value. They further argue it is unnecessarily duplicative of the parents’ testimony and
the medical evidence. The plaintiffs argue that the 26-minute video showing Lucas
Ribeiro at 19 months interacting with his parents and brother, and depicting his bath
time, feeding processes, physical therapy sessions and exercises and showing medical
equipment is relevant to the issue of the plaintiffs’ damages.
"[Rule 403] does not offer protection against evidence that is merely prejudicial in
the sense of being detrimental to a party's case. The rule protects against evidence that
is unfairly prejudicial." United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006)
(quoting United States v. Johnson, 463 F.3d 803 (8th Cir. 2006).
F.

Defendants' Joint Motion in Limine to Preclude Evidence
Regarding Foreign Standards and Regulations, Filing No. 664.

Defendants seek to exclude evidence relating to ECE R44, the European car
seat standard which requires that the entire harness system on a car seat be able to
come apart with the push of a single button. The plaintiffs argue the evidence is directly
related to the claims relating to the defective design of the infant carrier.
The court finds the motion should be denied at this time. The evidence appears
relevant to the plaintiffs’ theory that the design of the subject infant carrier was
defective, in part, because it used a European-style dual tongue, single entry puzzle
buckle with an American-style chest clip in the 5-point harness. The evidence may
provide background and context to the plaintiffs' theories. The evidence may warrant a
cautionary instruction, but the court cannot determine the ambit of such an instruction in
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the context of a pretrial motion. The court finds the motion can be adequately resolved
at trial. Accordingly, the court finds that the motion in limine should be overruled at this
time, without prejudice to its reassertion via timely objection to the admissibility of such
evidence at trial.
G.

Defendants' Joint Motion in Limine to Exclude New Expert
Opinions Not Originally Disclosed in Plaintiffs' Expert
Disclosures, Filing No. 665.

Defendants seek an order admonishing the parties not to refer, prior to jury
selection, to new expert opinions not originally disclosed in the plaintiffs’ expert
disclosures. They argue that plaintiffs’ experts opined on new issues and developed
new theories for the first time in their depositions—based on no new evidence, and
likely simply in response to legal arguments made in Defendants’ dispositive motions—
well after Plaintiffs’ expert disclosure deadline details.

The plaintiffs argue that the

rebuttal opinions should come as no surprise to the defendants.
The court rejects the defendant’s argument that the untimely disclosure warrants
exclusion of the experts’ testimony. The defendants were aware of the identity and
general subject matter of the reports as revealed in their original expert disclosures.
The defendants were afforded an opportunity to depose the experts and can show no
prejudice in any late disclosure. Defendants were in possession of all the information
they needed before their experts were deposed.

The defendants have also

supplemented their expert disclosures. Accordingly the court finds the motion should be
denied.
H.

Defendants' Joint Motion in Limine to Preclude the Use of
"Parlor Tricks" at Trial, Filing No. 666

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In this motion, the defendants seek to prevent plaintiffs from utilizing the Baby
Trend car seat to demonstrate evidence to the jury, alleging that any such
demonstration would be considered a "parlor trick" at trial. Plaintiffs argue that plaintiffs'
experts have performed tests on the infant carrier with the objective to determine
whether the infant carrier contains, among other things, the physical properties of a
defective design, particularly whether the design could allow for a false click. (Filing No.
569-20, Hoffmann Report, pp. 5-10.; Filing No. 569-21, Expert Report of Terry Stentz,
Ph.D., and Kelli Herstein, Ph.D., pp. 15-20.)

As such, plaintiffs' experts should be

allowed to introduce experimental testimony that supports their findings regarding the
infant carrier, including, but not limited to, the fact that the crotch buckle of the infant
carrier produces a false click.
"The admissibility of evidence of experimental tests rests largely in the discretion
of the trial judge," and foundational standards for its admissibility is dependent on the
purpose of the experimental evidence. McKnight by & Through Ludwig v. Johnson
Controls, 36 F.3d 1396, 1401 (8th Cir. 1994) (citing Champeau v. Fruehauf Corp., 814
F.2d 1271, 1278 (8th Cir. 1987)).

In order for a party to introduce experimental

testimony that recreates the incident, that party need only show that such experiment
contains conditions with substantial similarity to the actual conditions of the incident.
The "substantial similarity requirement [is] not a perfect identity requirement."

See

McKnight, 36 F.3d at 1404 (8th Cir. 1994). Furthermore, any dissimilarity between the
incident and the experimental evidence only "affect[s] the weight of the evidence, not its
admissibility." Id. at 1405.

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Again the court is unable to evaluate the evidence in the context of a pretrial
motion. The court finds generally that plaintiffs should be allowed to demonstrate to the
jury the false click made by the crotch buckle on the Baby Trend car seat, as well as its
allegedly excessive rocking ability and other alleged defective design and warning
features. Experimental evidence is allowed if it is used to demonstrate the expert's
scientific inquiry. The plaintiffs will be required to lay a proper foundation that any
experimental testimony introduced to recreate the incident was performed under
conditions with substantial similarity to the actual conditions of the incident.

The

defendants’ arguments go more to weight than admissibility and can be addressed in
cross-examination or via objection at trial.
I.

Defendants' Joint Motion in Limine to Preclude Evidence
Regarding Sale to Dorel and Financial Status, Filing No. 670.

The Lerado defendants move to preclude evidence regarding the sale of some or
all of the Lerado business to Dorel and the financial status of the Lerado defendants.
They argue that such information is not relevant, and even if it is, it should be excluded
under Rule 403. The plaintiffs assert the evidence is relevant because the defendants’
retained experts have worked for or are presently working for or with Dorel. They argue
the fact that Lerado's experts have and are currently working for Dorel is highly relevant
information to show the experts' bias in forming their opinions. Further, they argue the
evidence of the sale and Lerado's financial status is relevant and necessary to show
that Lerado had the resources and expertise to conduct the necessary design and
testing processes for the subject infant carrier. Plaintiffs represent that they do not

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intend to offer financial status or the sale to Dorel to suggest that the defendants are
capable of paying a large verdict.
The court finds that the financial status of Lerado or Dorel is irrelevant. Evidence
of the business relationship between Lerado and Dorel may be relevant. The court is
unable to evaluate the relevance of this challenged evidence in the context of a pretrial
motion. The evidence may be admissible only for a limited purpose or as impeachment
evidence.

Whether the evidence would warrant a cautionary or limiting instruction

cannot be determined at this time. The court will admit the evidence at issue only on a
showing that it is relevant to the issues in the case, and only to the extent that the
relevance of the evidence outweighs its potential to cause prejudice or confusion under
Fed. R. Evid. 403. Accordingly, the court overrules the motion, without prejudice to
reassertion.
J.

Defendants' Joint Motion in Limine to Preclude Evidence
Regarding 2013 (or Later) ASTM Standards and CPSC Studies,
Filing No. 672

The defendants seek to preclude evidence of standards and studies that were
published after the car seat was manufactured in 2006, specifically, a mandatory
warning that became effective in 2013. They argue that the evidence is not relevant to
the defendants’ duties or obligations in 2006.
The plaintiffs argue that there were no mandatory requirements for hand-held
infant carriers in 2006—only a voluntary standard issued under ASTM F2050-03. The
Consumer Product Safety Commission undertook a human factors study regarding the
injuries and deaths associated with hand-held infant carriers, and subsequently issued a
Notice of Proposed Rulemaking for a new mandatory standard in 2008. The study was
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based on publicly-available data dating back to 1999. The plaintiffs argue that the
standards do not establish the defendants’ duty of care but may be relevant to show
defendants knew or should have known that others in the industry had acknowledged
the risk of harm. The plaintiffs also argue that the evidence is relevant to rebut any
contention that it was not feasible for them to include this warning or that they did not
have the information necessary to analyze whether the warning was appropriate.
Industry standards at the time the manufacturer chose the design at issue is one
factor in determining the manufacturer's exercise of reasonable care.

See, e.g.,

Buchanna v. Diel Mach, Inc., 98 F.3d 366, 371 (8th Cir.1996).
Again, the court finds it difficult to assess the relevance in the context of a pretrial
motion. To the extent the plaintiffs can show that the information was available at the
time of manufacture, the evidence may be relevant. Its relevance as impeachment
evidence depends on the evidence to be impeached. The court will defer ruling on the
motion until the time of trial.
K.

Defendants' Joint Motion in Limine to Preclude Incorrect
Police Testimony Regarding Missing Spring or Visual
Concerns about Crotch Buckle, Filing No. 675

In this motion, the defendants seek to preclude Kearney Police Officers, who
investigated Lucas Ribeiro's strangulation, from offering any opinions regarding the
appearance or functioning of the crotch buckle on the car seat. In particular, they seek
to bar testimony that one of the KPD officers said "he was unable to recreate the latch
releasing on its own," while another officer said plaintiffs' counsel was "unable to get
[the buckle] to pull apart from the latch." The defendants argue that "neither officer is

12

qualified to offer expert opinions regarding the crotch buckle" or to testify about their
perceptions of the crotch buckle.
In response, the plaintiffs concede they will stipulate that Kearney Police Officers
David Sesna and Michael Young may not testify regarding whether the crotch buckle
functioned appropriately, including any latching or unlatching tests (and the results
thereof) that they or anyone else did on the buckle. They also stipulate the KPD may
not testify regarding whether the crotch buckle was missing a spring.

They argue,

however, that the officers should not be precluded from otherwise testifying about the
general appearance of the crotch buckle.
The court agrees that the officers may testify as to their observations and the
general appearance of the crotch buckle. The motion will be granted with respect to the
other issues in light of the plaintiffs’ stipulations.
L.

Defendants' Joint Motion in Limine Nos. 1-30, Filing No. 677

Defendants have filed a motion in limine to prevent "all parties" from offering any
evidence or testimony on thirty specific topics. The plaintiffs concede several of the
motions. With respect to those still in controversy, the court finds as follows:
Topic 4:

Barring Comments by Counsel as to Credibility of
Witnesses.

The court agrees with plaintiffs’ position that parties are permitted to argue
credibility in closing argument.

The court will instruct the jury on credibility, in

accordance with pattern jury instructions.
Topic 5:

Barring Lay Medical Testimony and Lay Witness
Testimony as to the Nature and Extent of Lucas
Ribeiro's Injuries.
13

The court finds the motion should be denied. To the extent witnesses provide
medical care to plaintiff Lucas Ribiero, they can testify to facts that touch on his
treatment, diagnosis, and current condition. They may provide lay opinions if it is "(a)
rationally based on the witness's perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid.
701.
Topic 6:

Barring Lay Witness Testimony as to Nature and
Extent of Deanna and Franco Ribeiro's Injuries.

The court finds the motion should be denied. Deanna and Franco Ribeiro may
testify about their own pain and suffering and how they felt after the incident.
Topic 8:

Barring Reference to what a Reasonable Person would Pay to
Avoid Accident.

Defendants request that the court bar plaintiffs from offering any evidence as to
what a reasonable person would pay to avoid an accident in this case.
The court finds the motion should be denied. The defendants offer no law in
support of their contentions. The parties are offered wide latitude in closing argument.
Topic 9:

Barring Reference to Status
Finances.

of Defendants'

The plaintiffs do not object to Topic 9 of defendants' motion in limine to the extent
it is limited to any evidence of the amount of defendants' finances. The court will defer
ruling on the motion with respect to the evidence as relevant to show bias of plaintiffs’
experts or in rebuttal. See above.
Topic 10:

Barring
Status.

Reference

to

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Defendants'

Corporate

The court finds the motion should be denied. The court generally instructs the
jury that a corporation stands the same in the eyes of the law, in conformity with pattern
jury instructions.
Topic 12:

Barring Reference that Jury “Should Send a
Message”

The defendants argue that when, as in this case, punitive damages are not
available, appeals by a plaintiff to the jury that the jury should use the verdict to “send a
message” to the defendants equate to punishment and are improper. The plaintiffs
object, contending that "There is no per se rule against invitations to a jury to 'send a
message.'" United States v. Riley, 621 F.3d 312, 339 (3d Cir. 2010). In response to the
defendants’ motion in limine regarding barring reference to willful, wanton, or intentional
conduct, the plaintiffs represent that they do not intend to use any such evidence to
argue that they entitled to punitive damages.
Depending on the context, the phrase “send a message” can be interpreted as
intended to suggest the award of punitive damages. Abler v. State, No. A-95-814, 1996
WL 654326, at *7 (Neb. Ct. App. Nov. 12, 1996) (stating using the “send a message”
theme to distract the jury from the actual damages sustained and to cajole the jury into
awarding what amounts to punitive damages “would carry with it the requirement that
the jury ignore the instructions, and it would obviously be improper”). The court must
hear the context of any such argument in order to resolve the issue. The plaintiffs are
cautioned, however. The matter can be addressed with an objection at trial. If the court
finds the argument is intended to suggest the award of punitive damages, the objection
will be sustained.

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Topic 13:

Barring Reference to Intentional, Reckless, Willful,
or Wanton Conduct.

The defendants seek to exclude any evidence that their conduct in this case was
intentional, reckless, willful, or wanton. Plaintiffs represent that they do not intend to
use any such evidence to argue that they are entitled to punitive damages. An appeal
to the jury to impose punitive damages appears to be the defendants' primary concern
in raising this issue. In light of the plaintiffs' representation, the court finds the motion is
sustained.
Topic 15:

Barring Lucas Ribeiro from the Courtroom

The defendants move the court to ban Lucas, a plaintiff in this case, from the
courtroom during the trial. The court finds Lucas Ribiero is a plaintiff in this lawsuit and
is entitled to be present during the trial for a short period. His continued presence likely
will create unnecessary distraction during argument or the testimony of witnesses.
Topic 16:

Sequence of Witnesses

The defendants request an order directing that all parties disclose their
witnesses, the sequence in which they will be called, and the anticipated duration of
their testimony.

This motion has been rendered moot by the Order on Pretrial

Conference, Filing No. 731 at 16.
Topic 17:

Barring Reference to Plaintiffs' Good Character

The court finds such evidence is admissible only if a witness's character has
been attacked. Fed. R. Evid. 608(a). The court will deny the motion at this time,
subject to reassertion at trial if the defendants open the door.
Topic 18:

Barring Comments as to the Credibility of
Evidence
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The court finds this motion should be denied.
Topic 19:

Barring Reference to this Motion, Excluded
Evidence, and Discovery Disputes

The plaintiffs concede the motion with respect to motions limine, but contend
evidence of discovery disputes may be relevant. The court is unable to assess this
evidence in the context of a pretrial motion. The court will defer ruling on the topic,
subject to development of evidence at trial. However, the court generally does not allow
evidence concerning discovery disputes.
Topic 20:

Barring Reference to
Location of its Offices.

Defense

Firm

or

the

The court generally inquires whether potential jurors know of, or have done
business with the attorneys or their law firms in voir dire. The law firms’ locations are a
necessary part of this inquiry. The motion will be denied.
Topic 21:

Barring Reference to Destructions of Documents,
Video, or any other Materials

The defendants seek an order barring any reference to destruction of documents.
The plaintiffs state they anticipate offering evidence at trial that one or more of the
defendants intentionally destroyed documents concerning the design and manufacture
of the Baby Trend car seat and knowledge of Lucas Ribeiro's injuries. This evidence
appears to relate to defendant Baby Trend, who has settled with the plaintiffs. Whether
that evidence is still relevant to any other issues in the case cannot be determined at
this time. The court denied the motion without prejudice to reassertion.
Topic 22:

Barring Lay Witness Testimony who did not
Witness the Incident from Offering Opinions as to
the Circumstances of the Occurrence.

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The defendants seek to preclude any lay witnesses from opining as to the
circumstances of Lucas' strangulation. No one witnessed the incident, but witnesses
will be permitted to testify as to their observations before and after the incident. Mrs.
Ribiero may also provide a lay opinion that Lucas strangled on the chest clip based on
her observation that the crotch buckle was undone. That opinion appears to comport
with Fed. R. Evid. 701 as "(a) rationally based on the witness's perception; (b) helpful to
clearly understanding the witness's testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.” The court finds the motion should be denied.
Topic 23:

Barring Voir Dire regarding Damages in "Millions
of Dollars."

The defendants move for an order in limine that would bar asking prospective
jurors if they are willing to award damages in “millions of dollars,” and bar statements to
the effect of attempting to elicit a pledge or promise from prospective jurors to return a
verdict in the “millions of dollars.” They argue that any questioning of the prospective
jurors on the issue of damages should be limited to asking jurors whether they could
fairly and reasonably compensate the Plaintiffs under the evidence even if the
compensation was in a substantial amount of money. The plaintiffs contend Lucas
Ribeiro has sustained approximately $20 million in special damages.
The court finds the plaintiffs should be allowed to pursue the topic regarding the
jurors’ thoughts on awarding large amounts of damages in voir dire, as long as the
statements are supported by evidence. However, the plaintiffs are precluded from

18

eliciting promises from potential jurors. The court finds such general questioning is
appropriate to obtain a fair and impartial jury.
Topic 24:

The motion is denied in part.

Barring all Witnesses
Previously Disclosed

and

Opinions

not

The parties have already disclosed their witnesses and have agreed that "except
upon a showing of good cause, no witness whose name does not appear on a parties'
witness list shall be permitted to testify over objection for any purpose except
impeachment." Filing No. 731, Pretrial Order at 12. Also, if a party opens the door to
an expert offering a “new" opinions at trial, the opposing party will be permitted to rebut
that evidence.
Topic 26:

Barring Reference to Defendants Delaying Trial

The defendants seek to preclude reference to the fact that this case has taken
over 5 years to get to trial. The plaintiffs contend they should be allowed to show that
Lerado delayed the proceedings with jurisdictional discovery.
The court cannot see the relevance of any such evidence at this point. The
motion is sustained.
Topic 27:

Reference to Attorney's Fees, including, but not
limited to, any Reference to the Fact that Plaintiffs
will have to Pay their Attorneys or Litigation
Expenses out of any Recovery had in this Case

The plaintiffs concede this point, but reserve the right to seek fees under the
Magnuson Moss Act, with the understanding that the court will hold a separate hearing
to determine the amount of attorney fees to which the plaintiffs are entitled.

The

plaintiffs' position on the point is noted, but further discussion at this point is premature.

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Topic 28:

Reference to or Admission of Letters, Emails, or
any other Communications between Counsel,
including, but not limited to, any Reference to
Discovery
Disputes
or
Allegations
that
Defendants Failed to Provide Plaintiffs with
Discovery

The plaintiffs concede the motion with respect to letters, emails, or
communications among the parties' counsel, but reserve the right to elicit evidence on
discovery disputes.
The court is unable to assess this evidence in the context of a pretrial motion.
The court will defer ruling on the topic, subject to development of evidence at trial.
Plaintiffs will be required to show the relevance to any such evidence.
Topic 29:

Reference to Defendants' Ethics, Morality, Social
Responsibility, and any Characterization of
Defendants as "Unapologetic"

The plaintiffs contend that the defendants' request to exclude any evidence that
they have been unapologetic or references to morality and ethics, etc., is overly broad.
The court finds it cannot assess the relevance of any such argument in a pretrial
motion. The court will deny the motion at this time, without prejudice to reassertion.
Inflammatory or inappropriate argument will not be permitted.
M.

Defendants' Joint Motion in Limine to Bar Use of the Wayback
Machine as Inadmissible Evidence, Filing No. 678

The defendants filed a motion in limine to preclude any evidence obtained from
the "Wayback Machine." This motion refers to evidence of archived webpages. The
court finds the motion should be denied as premature. The evidence is not hearsay if it
is "offered against an opposing party and was made by the party in an individual or
representative capacity." Fed. R. Evid. 801(d)(2). The evidence will be admitted if the
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plaintiffs lay foundation and properly authenticate the evidence. The court will deny the
motion at this time, without prejudice to reassertion.
N.

Defendants' Joint Motion in Limine Barring References to
Other Lawsuits and Claims, Including References to Robert
Gardner and His Employment-Related Action, Filing No. 683

The defendants seek preclude evidence of other lawsuits and claims involving
the defendants, including patent lawsuits, employment-related lawsuits involving Baby
Trend, and personal injury lawsuits for which Mark Sedlack was the designer of the
product at issue.
This motion appears to relate to claims against the settling parties. The motion
will be denied as moot with respect to evidence that relates to those parties. To the
extent that any such evidence goes to the relationship of the parties at the time of the
manufacture of the infant carrier seat or to their respective roles in the designing of the
car seat, the court will defer ruling on the motion until such time as the evidence is
offered. The court will admit the evidence at issue only with proper foundation and a
showing that it is relevant to the issues in the case, and only to the extent that the
relevance of the evidence outweighs its potential to cause prejudice or confusion under
Fed. R. Evid. 403.
O.

Defendants' Joint Motion in Limine Barring Unrelated or
Alternative Designs, Filing No. 714

In this motion, defendants seek to preclude evidence "of any kind" regarding
comparisons to alternative or unrelated designs. Plaintiffs vehemently object, stating
the defendants’ argument “carries no weight and is completely absurd.”

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The court finds the defendants motion should be denied, without prejudice to
reassertion with respect to specific evidence offered at trial. At the pretrial stage, the
court is unable to assess the relevance, probative value, prejudicial effect, or danger of
confusion or balance those factors with respect to such a broad and vague category of
evidence. Alternative designs are generally relevant to the issue of whether a product is
dangerous or defective. The defendants’ arguments as directed at expert testimony are
addressed in the court’s Daubert rulings. The motion will be denied without prejudice to
reassertion.
P.

Defendants' Joint Motion in Limine Barring Use of the Subject
Child Restraint System and Its Use in the Courtroom Due to
Plaintiffs' Spoliation, Filing No. 717

Defendants move for an order prohibiting the Ribeiros from offering the car seat
that injured Lucas Ribiero into evidence and moves for adverse inference jury
instruction based on the Ribeiros’ supposed spoliation of evidence. They allege “that
the position of the headrest and harness [on the subject car seat] ha[s] been adjusted”
and that supposedly other items of “evidence” (the base and owners’ manual) have
been “thrown away” or “misplaced.”
"A district court is required to make two findings before an adverse inference
instruction is warranted: (1) 'there must be a finding of intentional destruction indicating
a desire to suppress the truth,' and (2) '[t]here must be a finding of prejudice to the
opposing party.'" Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013); see
also Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 879 (8th Cir. 2015). The court
cannot make any determination without hearing the evidence on the subject.

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The court notes, however, that it appears that several of the defendants’
arguments in support of its position are misplaced.

First, the defendants’ retained

experts testified that they were able to do analysis and testing on the subject car seat.
Further, they all admitted that the alleged spoliation of the Baby Trend car seat was
irrelevant to their opinions in this case. The fact that the plaintiffs are no longer in
possession of the Graco car seat used by Lucas Ribiero’s twin is of questionable
relevance since it was not involved in the incident, as is the fact that the plaintiffs no
longer have the base for the Baby Trend car seat since the base is only used when the
car seat is in the vehicle and the incident occurred outside the car. The defendants
cannot show prejudice from the plaintiffs no longer having the owner's manual for the
Baby Trend car seat since they have produced the owner's manual in discovery and the
testimony of Baby Trend’s owner admitted that the manual was the same one that
would have been shipped with the plaintiffs’ Baby Trend car seat.
The motion will be denied at this time. If the defendants reassert the motion,
they must present some evidence of prejudice, which can be addressed at trial with a
review of the evidence outside the presence of the jury.
III.

Plaintiffs’ Motion in Limine (Non-Daubert), Filing No. 727.
The plaintiffs move for an order in limine preventing the defendants from offering

evidence or argument at trial on the following topics.

The court has reviewed the

parties’ positions and finds as follows:
Topic 1:

That Plaintiffs’ future medical expenses will be limited or
in any way reduced through the effects of the Patient
Protection and Affordable Care Act ("ACA")

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Topic 2:

That Plaintiffs have received, been entitled to receive,
will receive, or will become entitled to receive, benefits
of any kind or character from a collateral source,
including but not limited to, such collateral source
benefits as the following: insurance coverage; services
furnished without charge; social security; Medicare;
and/or Medicaid.

Topic 3:

That Plaintiffs are only entitled to recover the
discounted amount for any past or future medical
expenses, as opposed to the private party rate for those
expenses.

Plaintiffs seek to exclude Dr. Baade’s opinions relating to the supposed effects
the Patient Protection and Affordable Care Act ("ACA") will have on the costs
associated with Lucas Ribeiro's future medical treatments and testimony that damages
for future medical bills incurred for Lucas’s treatments should be limited to the
discounted rate insurers pay for such treatment.
The defendants concede the motions and indicate that they have no plans to
offer any such evidence. Accordingly, the court finds the motions should be granted
with respect to collateral source rule topics.
Topic 4:

That the subject car seat is rated “safe” in car crashes
by the National Highway Traffic Safety Administration
(NHTSA).

The plaintiffs raise a relevancy and a Rule 403 objection. Safety in a crash does
not appear to be relevant to injuries that were not caused by a crash. However, to the
extent that the defendants can show a causal link between federal child restraint
systems standards/certification and the incident, some inquiry may be permitted. The
issue can be explored out of the presence of the jury and will be denied at this time
without prejudice to reassertion.

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Topic 5:

Any testimony, evidence, or opinions relating to testing
or purported compliance in relation to NHTSA
standards, including but not limited to FMVSS No. 213.

The plaintiffs raise a relevancy and a Rule 403 objection. For the reasons set
forth above, the motion is denied at this time without prejudice to reassertion.
Topic 6:

Any criticism or negative insinuation regarding the
Ribeiros purchasing the subject car seat used/secondhand.

The plaintiffs raise a relevancy and a Rule 403 objection. The defendants point
out that the evidence may be relevant with respect to spoliation and chain of custody
issues. The court cannot evaluate the relevance of the evidence without knowing the
context in which it is offered. It may be relevant to defenses in the case or to the issue
of foreseeability. The motion is denied at this time without prejudice to reassertion.
Topic 7:

That Baby Trend has not previously issued a product
recall for the subject car seat or for other car seats or
products it sells or has sold in the past.

The plaintiffs raise a relevancy and a Rule 403 objection. The defendants argue
that the evidence is relevant to the defense that the product was not defective. The fact
that a product has not been recalled is not necessarily determinative of whether it has a
defect. The evidence appears to lack much probative value. However, to the extent the
defendants can show relevance, some inquiry may be permitted. The topic can be
addressed outside the presence of the jury at trial. The motion is denied at this time
without prejudice to reassertion.
Topic 8:

Any use of the words, "lottery," "jackpot," or similar
words;

Topic 9:

Any evidence, testimony, statement, or insinuation that
we live in a "sue happy society," "a litigious society," or
any other statements to that effect;
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Topic 10:

Any evidence, testimony, statement, or insinuation that
there are too many lawsuits or too many frivolous
lawsuits filed;

Topic 11:

Any evidence, testimony, or statements concerning the
date the Ribeiros hired their counsel, questions
concerning the circumstances surrounding the hiring of
their counsel, and/or any instructions, suggestions or
recommendations which they received from their
counsel

Topic 12:

Any statement concerning the “trial strategy” or the
“real strategy” of the Ribeiros or their attorneys or other
similar inquiry;

Topic 13:

Any references or statement concerning what type of
law counsel practices, including what type of clients or
specific clients that counsel has represented

Topic 14:

The fact that the Plaintiff has filed a Motion in Limine to
exclude the foregoing matters from evidence at trial

Topic 15:

That Plaintiff Franco Ribeiro was born outside the
United States, is an immigrant, a green card holder, not
a U.S. citizen or any other comments designed to alert
the jury to this topic;

The defendants concede with respect to Topics 8-15. Those motions in limine
are granted.
Topic 16:

Any statements or references to law enforcement
reports authored in connection with the incident

The plaintiffs contend the reports are inadmissible hearsay and are not
admissible under Federal Rule of Evidence Rule 803(8). The defendants argue that the
reports fall under multiple exceptions to the rule against hearsay under Rule 803. That
Rule is the hearsay exception for the factual findings of a legally authorized
investigation.

Fed. R. Evid. 803(8)(A)(iii).

An investigative agency report generally

contains double hearsay, the report itself, and what a witness told the investigator.
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United States v. Taylor, 462 F.3d 1023, 1026 (8th Cir. 2006).

“‘[T]he report is

inadmissible unless each level of hearsay falls within an exception to the hearsay rule.’”
Id. (quoting United States v. Ortiz, 125 F.3d 630, 632 (8th Cir. 1997); see Fed. R. Evid.
805. The public-records hearsay exception “provides that a ‘record or statement of a
public office’ is not hearsay if it sets out, in a civil case, ‘factual findings from a legally
authorized investigation.’” Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd.,
703 F.3d 1104, 1108 (8th Cir. 2013) (quoting Fed. R. Evid. 803(8)(A)(iii)). “To the
extent the investigators reported what witnesses, neighbors, former employees, and
investigators of prior fires had told them, the reports may have been hearsay if offered
for the truth of the matter asserted.” Cedar Hill Hardware & Const. Supply, Inc. v. Ins.
Corp. of Hannover, 563 F.3d 329, 344 (8th Cir. 2009). See, e.g., United States v. Ortiz,
125 F.3d 630, 632 (8th Cir.1997); United States v. Mackey, 117 F.3d 24, 28–29 (1st Cir.
1997) (referring to “the same ‘hearsay within hearsay’ problem that is familiar in many
contexts”, and holding that “hearsay statements by third persons . . . are not admissible
under [Rule 803(8)] this exception merely because they appear within public records”).
Again, the court is unable to evaluate the evidence in the context of a motion in
limine. The admission of such evidence depends on whether it is offered for the truth of
the matter asserted or for some other purpose. Generally, the court does not admit
such reports due to the double hearsay issue and usual legal opinions found in them.
Further, if the officer is called as a witness, the report is further rendered inadmissible
hearsay.

Of course, the officer can testify as the information within the reports.

Accordingly, the court finds that the plaintiffs’ motion in limine is in the nature of an

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objection that can be asserted at trial.

The motion is denied at this time without

prejudice to reassertion.

Topic 17:

Any statement regarding the probable testimony of a
witness who is absent, unavailable or not called to
testify in this cause

Topic 18:

Any statements concerning (a) any attempts made to
have the Defendants appear for trial, (b) any attempts
made to have the Defendants participate in any matter
concerning this lawsuit, (c) any participation the
Defendants have or have not had with regard to any
matter in this lawsuit, and (d) any alleged reasons why
the Defendants have or have not participated in any
matter concerning this lawsuit or have failed to appear
for trial.

The plaintiffs characterize the above topics as hearsay issues. The defendants
state they have no objections, provided that the motions in limine are also enforced
against plaintiffs and further state they have no current plans to offer such evidence.
The motions will be granted.
IT IS ORDERED:
The parties’ motions in limine (Filing Nos. 652, 655, 657, 658, 662, 664, 665,
666, 670, 672, 675, 677, 678, 683, 714, 717, and 727) are granted in part and denied in
part as set forth in this order.
Dated this 17th day of April, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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