Jordan v. Maxfield & Oberton Holdings, LLC

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         This Order resolves four of the pending motions in limine.

         I. Katherine Cahill

         Maxfield & Oberton first seeks to exclude the testimony of Katherine Cahill. The plaintiffs designated Cahill as one of their experts in September 2017. M&O now argues that her testimony is irrelevant to a disputed fact and must be excluded under Rules 401 and 702.

         To the extent M&O's argument is timely, see Local Rule 26(a)(3), it is unpersuasive. M&O may now agree that “Buckyballs pose a risk of harm to young children and must be kept away from them”-though the parties have not entered into any stipulations on this or any other point-but M&O has not conceded that Buckyballs will injure children no matter how they are labeled. The jury can hear Cahill's testimony on this subject. The motion is denied.

         II. Post-Sale CPSC Proceedings

         Next, M&O argues that the jury should not be permitted to hear evidence about any proceedings before the Consumer Product Safety Commission which occurred after the product in this case was sold to the plaintiffs. The plaintiffs respond that: (a) one of their medical experts uses a post-sale study to support his opinions (the “NASPGHAN Report”), and (b) M&O's post-sale marketing efforts support the plaintiffs' punitive damages claim.

         The plaintiffs are required to prove that Buckyballs were defective “at the time the product left the control of the manufacturer.” Miss. Code Ann. § 11-1-63(a); see also Dykes v. Husqvarna Outdoor Prod., N.A., Inc., 869 F.Supp.2d 749, 758 (S.D.Miss. 2012). M&O's post-sale marketing efforts do not shed any light on whether Buckyballs were defective, and therefore will be excluded from trial. If the plaintiffs receive a verdict, the Court will hear argument on whether they may introduce M&O's post-sale marketing efforts during the punitive damages phase (if one is warranted).

         The admissibility of the NASPGHAN Report is more complicated. In the Report, an association of pediatric gastroenterologists wrote the CPSC to support that agency's proposed magnet safety standards. The Report contains facts supporting the plaintiffs' case that Buckyballs were defective at the time they left M&O's control. The study also contains descriptions of how Buckyballs move through the body when ingested, i.e., the consequences of the Buckyballs' design. These kinds of facts are relevant and admissible. At the same time, the Court does not want to spend this trial arguing about the CPSC's regulatory process, settlement, or subsequent litigation. References to those matters must be redacted from the Report. The parties are directed to submit an agreed-upon redacted version of the Report with their final exhibit lists. In the unlikely event the parties cannot agree on what should be redacted, then each shall submit its separate version of proposed redactions at the designated time.

         The Court expects the parties to stick to the MPLA and avoid any risk of retrying this case at great expense and inconvenience. The motion is granted in part and denied in part.

         III. Other Incidents and Injuries

         M&O then seeks to exclude evidence of other magnet ingestion incidents or injuries. It contends that “admissible other incidents should be limited to those involving infants and toddlers who were injured when they found and ingested Buckyballs unintentionally left within their reach, and only where probative value of this evidence is not outweighed by its prejudice.”

         The legal standard is well-established:

Evidence of similar accidents occurring under substantially similar circumstances and involving substantially similar components may be probative of defective design. This evidence might be relevant to the defendant's notice, magnitude of the danger involved, the defendant's ability to correct a known defect, the lack of safety ...