Schmidt v. Int'l Playthings LLC

• Decision Date: 29 April 2021
• Docket Number: No. CIV 19-0933 JB/SCY,CIV 19-0933 JB/SCY
• Citation: 536 F.Supp.3d 856
• Parties: D. Maria SCHMIDT, as Personal Representative for the Estate of Dakotah Dedios, Deceased, and Richaline Dedios, Plaintiffs, v. INTERNATIONAL PLAYTHINGS LLC ; Epoch Company, Ltd.; Epoch Everlasting Play, LLC ; Walmart, Inc. and Marie Short, Defendants.
• Court: U.S. District Court — District of New Mexico

536 F.Supp.3d 856

D. Maria SCHMIDT, as Personal Representative for the Estate of Dakotah Dedios, Deceased, and Richaline Dedios, Plaintiffs,

v.INTERNATIONAL PLAYTHINGS LLC ; Epoch Company, Ltd.; Epoch Everlasting Play, LLC ; Walmart, Inc. and Marie Short, Defendants.

No. CIV 19-0933 JB/SCY

United States District Court, D. New Mexico.

Filed April 29, 2021

Justin Ross Kaufman, Rosalind Bienvenu, Durham, Pittard & Spalding, L.L.P., Santa Fe, New Mexico --and-- John F. Walker, Martin Walker, P.C., Tyler, Texas, Attorneys for the Plaintiffs

Gregory L. Biehler, Erin L. Chavez, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Albuquerque, New Mexico, Attorneys for the Defendant Epoch Everlasting Play, L.L.C.

Jeremy K. Harrison, Kevin D. Pierce, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, Attorneys for the Defendants Walmart Inc. and Marie Short

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Epoch Everlasting Play, LLC's Motion to Strike and Limit Testimony of Plaintiffs’ Experts Dennis Brickman, PE and Joseph Mohorovic, CPSM, filed November 19, 2020 (Doc. 100)("Motion to Limit"); and (ii) Defendant Epoch Everlasting Play, LLC's Motion For Partial Summary Judgment on Count III of Plaintiffs’ First Amended Complaint -- Negligence Per Se, filed December 1, 2020 (Doc. 105)("MSJ"). The Court held a hearing on April 1, 2021. See Clerk's Minutes at 1, filed April 1, 2021 (Doc. 155). The primary issues are: (i) whether flocked toys are categorically intended for use by children under three years of age under 16 C.F.R. § 1501.2 ; (ii) whether Defendant Epoch Everlasting Play, LLC ("Epoch Everlasting") is negligent per se, because the Calico Critters Yellow Labrador Twins toy, on which deceased Dakotah Dedios aspirated and choked to death, was a toy with small parts intended for use by children under three years of age in violation of 16 C.F.R. § 1500.18(a)(9) ; (iii) whether the Court should limit the testimony of the Plaintiffs’ experts Dennis Brickman, Professional Engineer ("P.E.") and Joseph Mohorovic, Certified Product Safety Manager ("C.P.S.M."), and Epoch Everlasting's experts Mary Toro and Dr. Carol Pollack-Nelson, who seek to testify on their interpretations of the federal regulatory scheme banning hazardous toys, because experts may not testify to their interpretations of federal regulations; and (iv) whether the Court should preclude the experts from opining whether the Calico Critters Yellow Labrador Twins toy was intended for use by children younger than three years of age under 16 C.F.R. §§ 1500.18(a)(9) and 1501.2. The Court concludes that: (i) § 1501.2 is ambiguous, because the regulation's plain language can be interpreted reasonably in two ways; the Court considers, therefore, the legislative history, and concludes that flocked toys are categorically intended for use by children under three years of age; (ii) Epoch Everlasting is negligent per se, because it is undisputed that the Calico Critters Yellow Labrador Twins toy has small parts that present a choking hazard and, as a flocked toy, was intended for use by children under three years of age in violation of 16 C.F.R. § 1500.18(a)(9) ; (iii) the experts may not testify on their interpretations of the federal regulatory scheme banning hazardous toys, because it is for the Court and not for the jury to decide what the law is; (iv) the experts may not opine whether the Calico Critters Yellow Labrador Twins toy was intended for use by children younger than three years of age, because flocked toys are intended definitively for use by children under three years of age under § 1501.2 ; and (v) the experts may testify about the factual issues related to other counts. Accordingly, the Court: (i) grants in part and denies in part the Motion to Limit; the experts may testify about the factual issues going to other counts, for instance negligence, but not the legal interpretation that go to negligence per se, and (ii) denies the MSJ.

FACTUAL BACKGROUND

The Court sets forth two factual sections to decide the Motion to Limit and the MSJ. The first factual section sets forth the factual background upon which the Court relies for purposes of the Motion to Limit, and the Court takes its facts from the Complaint for Wrongful Death, Loss of Consortium, Personal Injury, and Punitive Damages, filed October 3, 2019 (Doc. 1-3)("Complaint"); the Investigative Report, filed January 15, 2021 (Doc. 121-1)("Mohorovic Report"); the Investigative Report, filed January 15, 2021 (Doc. 121-2)("Brickman Report"); Report, filed January 15, 2021 (Doc. 121-8)("Toro Report"); and the Age Determination: Calico Critters -- Yellow Labrador Twins September 25, 2020, at 8, 51, filed January 15, 2021 (Doc. 121-9)("Pollack-Nelson Report"). The Court makes the best findings of fact it can at this stage of the proceedings for the Motion to Limit, but they are not binding on the Court or the parties or at trial on the merits. The second factual section contains the facts upon which the Court relies for the purposes of the MSJ, which sets forth the undisputed material facts. See Fed. R. Civ. P. 56.

1. Facts for the Motion to Limit.

1. The Defendants, International Playthings LLC; Epoch Co., Epoch Everlasting, Walmart, and Short, "develop, manufacture, market and sell a line of toys under the name" Calico Critters Yellow Labrador Twins. Complaint ¶¶ 13-15, at 5-6.

2. The Calico Critters Yellow Labrador Twins toy consists of two "miniature animal figures," and two accessories: a miniature bottle and a pacifier. Complaint ¶¶ 13, 15, 5-6.

[Editor's Note: The preceding image contains the reference for footnote¹ ].

3. "Both the baby bottle and the pacifier are intended to be placed in the mouth of the Critter and both represent play versions of real-life objects that a child would place in their mouth." Complaint ¶ 17, at 7.

4. The dimensions of the Calico Critters Yellow Labrador Twins toy are: (i) Labrador Twin Shiloh is one-and-a-half inch tall; (ii) Labrador Twin Marley is one-and-three-quarters inch tall; (iii) the pacifier accessory is thirty-eight-hundredths of an inch tall; and (iv) the bottle accessory is three-quarters of an inch tall. See Complaint ¶ 17, at 6.

5. The toy "invites the end used child to put the pacifier into their mouth" and presents a choking hazard. Complaint ¶ 22, at 9.

6. The Calico Critters Yellow Labrador Twins toy are labeled for children three years old and up, "even though their website specifically states that they can be used by children 2 years of age." Complaint ¶ 18, at 8.

7. On the manufacturer's website,

[u]nder FAQ, they state:

Q. I want to buy my child Calico Critters. How old should she be to play with them?

A. Calico Critters have small parts so should only be given to children under 2 with adult supervision. Three year old is the best age to introduce Calico to your child, but maybe don't buy the sets with very small accessories. The great thing about Calico Critters is that little children from 3 like them! Whether playing with the critters and furniture or collecting, they are sure to be a hit.

Above, the manufacturer identifies the small parts, but states a 2-year-old can play with them. They even acknowledge that 3-year-olds should not play with sets with very small accessories. But the box of Labrador Twins with small, even tiny, accessories is labeled suitable for 3-year olds.

Complaint ¶ 18, at 8.

8. On May 5, 2018, R. Dedios and her daughter, D. Dedios, who was two years and nine months old at the time, were at a Walmart store in Bernalillo, New Mexico. See Complaint ¶ 23, at 10.

9. D. Dedios "was drawn to the ‘Yellow Labrador Twins’ and was able to access and remove the Yellow Labrador Twins from the shelf." Complaint ¶ 23, at 10.

10. R. Dedios bought the Calico Critters Yellow Labrador Twins toy. See Complaint ¶ 23, at 10.

11. Five days later, on May 10, 2018, D. Dedios "aspirated the loose pacifier toy that came with the Labrador Twins." Complaint ¶ 24, at 10.

12. D. Dedios "was taken to the hospital and subsequently was pronounced dead." Complaint ¶ 24, at 10.

13. D. Dedios died "from choking on the loose pacifier toy on May 10, 2018." Complaint ¶ 24, at 10 (citing an autopsy report).

2. The Undisputed MSJ Facts.

Epoch Everlasting is a subsidiary of Epoch Co., Ltd. ("Epoch Co."). See Plaintiffs’ Response in Opposition to Defendant Epoch Everlasting Play, LLC's Partial Motion for Summary Judgment on Negligence Per Se Claim § II(B) ¶ 1,² at 8, filed January 15, 2021 (Doc. 123)("MSJ Response")(asserting this fact); Defendant Epoch Everlasting Play, LLC's Reply in Support of Motion for Partial Summary Judgment on Count III of Plaintiff's Complaint -- Negligence Per Se at 2-5, filed February 4, 2021 (Doc. 131)("MSJ Reply").³ Epoch Everlasting is the United States of America based distributor of Epoch Co.’s toys, including the Calico Critters line of products and the Yellow Labrador Twins toy. See MSJ Response § II(B) ¶ 1, at 7 (asserting this fact).⁴ Epoch Co. is the original creator of the Calico Critters line of toys. See MSJ Response § II(B) ¶ 19, at 11 (asserting this fact).⁵ Established in 1958, Epoch Co. is the third largest toy manufacturing company in Japan as of 2019. See MSJ Response § II(B) ¶ 19, at 11 (asserting this fact).⁶ Epoch Co. introduced the Calico Critters line of miniature flocked⁷ animal figures in 1985. See MSJ Response § II(B) ¶ 19, at 11 (asserting this fact).⁸ In November, 2008, Defendant International Playthings, Inc. was sold to an affiliate of Epoch Co. See MSJ Response § II(B) ¶ 19, at 11 (asserting this fact).⁹ International Playthings rebranded itself as Epoch Everlasting around February, 2017. See MSJ Response § II(B) ¶ 19, at 11 (asserting this fact).¹⁰ Plaintiff Richaline Dedios is Dakotah Dedios’ mother. See MSJ ¶ 3, at 3; MSJ Response § II(A) ¶ 3, at 4 (admitting this fact).

a. The Calico Critters Yellow Labrador Twins Toy.

A Calico...