Case Notes

A letter containing a preliminary warning regarding a product may be excluded from evidence where the letter does not contain a conclusive determination regarding the product's safety; the plaintiff must establish that the product was defective when it left the manufacturer and remained in the same defective condition at the time the death of their child occurred. Tober v. Graco Children's Products, Incorporated, No. 04-3837, U.S. Court of Appeals for the Seventh Circuit, Dec. 8, 2005.

On April 2, 2002, Trevor Tober, age 8 months, died from asphyxiation after being placed by a daycare worker in a swing manufactured by Graco. Police investigators concluded that Trevor died from asphyxiation because the harness straps of the swing were improperly tied, which made it impossible to fit Trevor properly. The Tobers commenced an action against Graco under the Indiana Product Liability Act. The Tobers sought to introduce a four-page letter stating that the swing in which Trevor died presented a substantial risk of injury to children if the harness straps were too loose or unbuckled. The district court excluded the letter from trial, granted summary judgment to Graco, and the Tobers appealed. The appellate court affirmed. It held that the district court did not abuse its discretion when it excluded the letter. It concluded that the letter was not a conclusive determination but a preliminary determination regarding potential hazards of the swing. It held that the Tobers were unable to establish that the swing was defective when it left the manufacturer and remained in the same defective condition when Trevor was placed in it. The court further held that Graco's subsequent voluntary recall of the swing was inadmissible and that any 'post-sale warnings' by Graco did not create a cause of action.