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Andrew Goesel and Christine Goesel, Individually and As Next Friend To Cole Goesel, A Minor v. Boley International (H.K.) Ltd.; Broadway Toys ) Industries Ltd.; Foshan

October 26, 2012

ANDREW GOESEL AND CHRISTINE GOESEL, INDIVIDUALLY AND AS NEXT FRIEND TO COLE GOESEL, A MINOR, PLAINTIFFS,
v.
BOLEY INTERNATIONAL (H.K.) LTD.; BROADWAY TOYS ) INDUSTRIES LTD.; FOSHAN
SHUNDE DISTRICT NA WEI PLASTIC & HARDWARE CO., LTD.; AND TARGET CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

This memorandum opinion and order is the second of two opinions dealing with the parties' motions in limine in this action ( "Opinion I," issued two days ago, addressed plaintiffs' 13 motions). To provide a brief background so that this opinion addressing defendants' 11 motions (respectively cited "D. No. --") can be self-contained, the opening paragraph of Opinion I is repeated here:

This action seeks to recover damages sustained by then five year old Cole Goesel ("Cole") when a plastic toy sword that he was playing with -- part of a toy product known as the "Boley Cosmic Robot" -- shattered and a piece of that sword pierced Cole's eye. After discovery was closed, this Court approved and entered the jointly submitted final pretrial order ("FPTO") on June 21, 2012, and the litigants adhered to the schedule provided there for the submission of motions in limine by tendering a host of such motions -- 13 by plaintiffs (cited simply "P. No. --") and 11 by defendants.

That said, this Court turns to defendants' motions.

D. No. 1 seeks to keep out of the case the opinions of economist David Gibson ("Gibson") "because they are unlikely and/or speculative." It should be said at the outset that this Court need not repeat the teaching as to opinion witnesses set out in the seminal opinions in Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) -- as Opinion I and its attached Appendix reflect, this Court (then a member and later the Chairman of the Judicial Conference's Advisory Committee on the Rules of Evidence) was the principal co-author for that Committee of both Fed. R. Evid. ("Evid. R.") 702 and its accompanying Advisory Committee Note. By definition, then, this Court is intimately familiar with the standards established by that Rule and that Note and with what they require. Although defense counsel has rehearsed the operative principles again and again, both in the responses to plaintiffs' motions in limine and in support of defendants' own, nothing is gained in analytical terms by such repetition.

To turn directly to defendants' criticism of Gibson's opinions, their counsel urges that Gibson produced two dramatically different reports in the space of three months. But like too many of defendants' positions, that one is really bogus. As economist Gibson explained in his February 21, 2012 forwarding letter that accompanied his second set of much higher figures:

The updated loss of earning capacity sustained by Cole Goesel is in a range of $1,010,276 to $1,378,950, stated in terms of present value. Enclosed is our report on your client. The updated figures are based on data from the 2008-2010 American Community Survey that were tabulated since our original report. This data offers more reliable information in regards to employment statistics for persons with visual limitations. This report is meant to replace our original report dated November 17, 2011.

Accordingly D. No. 1 is denied. Defense counsel will of course have the opportunity to cross examine Gibson and to seek to impeach his testimony by calling his first opinion into play.

D. No. 2 attempts another knock-out blow, this time by seeking to preclude the testimony of Duane Priddy, Ph.D. ("Priddy") as unreliable. But Opinion I, in the course of granting P. No. 1, provided a preview of coming attractions in that regard. Unlike defendants' opinion witness Bert Reiner, who purported to opine -- without any predicate or foundation for doing so, other than his own unsupported say-so -- on the type of plastic of which the sword that injured Cole and the sample swords tested by Dr. Priddy were manufactured, impeccably credentialed organic chemist Dr. Priddy provided ample support for his opinion both in his report and in his deposition.

Hence D. No. 2 is also denied. This Court should not be misunderstood, of course, as somehow vouching for the conclusion reached by Dr. Priddy -- that is a matter for the trier of fact to resolve. Once again cross examination will be available to defense counsel to attempt to persuade the jury to disbelieve Dr. Priddy.

D. No. 3 continues the defense's onslaught on plaintiffs' opinion witnesses, this time challenging ophthalmologist Andrew Dahl on the premise that his opinions "are too speculative." That could be a legitimate objection in areas in which the standards for a credentialed witness' opinion are "to a reasonable degree of certainty" or an even more stringent test as to a specific matter. But here the very nature of Dr. Dahl's testimony is to identify potential future risks to Cole's eyesight -- matters that by their nature cannot be quantified in terms of probability (especially where, as here, the subject of the opinions is just a ten-year-old).

Dr. Dahl properly does not claim to have a crystal ball*fn1 as to the complications that Cole may encounter because of his already-sustained injury. Because Dr. Dahl is entirely forthright in the nature of his assessment, there is no danger that the trier of fact will overweigh it. Once more defense counsel has cross examination available as a proper line of attack -- but defendants are not entitled to exclude the witness entirely, so that D. No. 3 is denied as well.*fn2

D. No. 4 shifts gears, moving from the subject of opinion witnesses to a contention that a plaintiff should be barred from referring to defendants' financial and corporate status. In that respect defendants urge that any such references should not be a means of "inflam[ing] any prejudice which the jury might have against corporations" or "to arouse sympathy and passion and to encourage larger verdicts" by reason "of the presumed wealth of such parties."

Those concerns are legitimate, but plaintiffs' response rightfully suggests that the better course is to avoid a generic ruling now in favor of dealing with specific questions in the context of trial. Accordingly D. No. 4 is denied in its unbounded form, with the subject to be addressed as it may arise during the course of trial. For that purpose plaintiffs' counsel will be required to identify, from time ...


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