Gregory Tober and Staci Tober v. Graco Children ’ S Products , Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3837
G REGORY T OBER AND S TACI T OBER ,
Plaintiffs-Appellants,
v.
G RACO C HILDREN ’ S P RODUCTS ,
I NCORPORATED ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 1682—Larry J. McKinney, Chief Judge.
____________
A RGUED S EPTEMBER 19, 2005—D ECIDED D ECEMBER 8, 2005
____________
Before R IPPLE , W OOD , and W ILLIAMS , Circuit Judges.
W ILLIAMS , Circuit Judge. Gregory and Staci Tober filed
this action pursuant to Indiana’s Product Liability Act
(“IPLA”), seeking recovery for the heartbreaking death
of their eight-month-old son, Trevor Tober. Following a
week-long trial, a jury rendered a verdict in favor of Graco
Children’s Products, Incorporated (“Graco”), finding that
the Tobers had failed to prove by a preponderance of the
evidence that one of Graco’s products, the Lil’ Napper
Plus Battery Powered Swing (“Lil’ Napper”) model no.
12-476 manufactured in 1995 by Century Products Com-

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2 No. 04-3837
1 Through an asset purchase, Graco assumed liability for Cen-
tury’s products, including the baby swing at issue in this case.
pany (“Century”), 1 was defective. On appeal, the Tobers
contend that the district court erred in the exclusion of
certain evidence at trial, in certain rulings the district court
made as a matter of law prior to trial, and in how the
district court instructed the jury. Notwithstanding the
tragic death from which this case arises, we agree with
the district court’s rulings and, therefore, affirm.
I. BACKGROUND
On the morning of April 2, 2002, Staci Tober dropped off
her eight-month-old son, Trevor, at Timolyn Fitzgerald’s
suburban Indianapolis home. Ms. Fitzgerald owned and
operated an unlicensed, in-home daycare named Precious
Angels Daycare (“Daycare”). On that day, Ms. Fitzgerald
and her mother were caring for ten other children.
Among the variety of children’s products in Ms. Fitzger-
ald’s home was a Lil’ Napper. The Lil’ Napper swing
consisted generally of an A-frame structure with a seat
suspended from two bars. A battery-powered motor sat atop
the A-frame and moved the bars suspending the
seat forward and backward in a swinging motion.
The Lil’ Napper swing came with a harness restraint
system which was comprised of an inch-wide strap that
extended from the rear of the swing through two slots or
channels near the top of the back of the seat. The two
straps fit over each of the child’s shoulders to meet in a “V”
between the child’s legs. At the end of the “V” was a buck-
le that secured the over-the-shoulder straps to the bottom
of the swing’s seat between the child’s legs. The harness
restraint system was also equipped with a “strap slide”
which was positioned on the back side of the swing’s seat to

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No. 04-3837 3
anchor the over-the-shoulder straps firmly to the
back of the seat. The strap slide allowed a caretaker to
adjust the harness straps to fit infants of various sizes. The
last component of this restraint system was a “harness tie.”
The harness tie was threaded through the two over-the-
shoulder harness straps and positioned on top of the in-
fant’s chest.
Century included an instruction manual with the Lil’
Napper swing that specifically addressed the proper use
of the harness restraint system. Century also placed
warning labels on all Lil’ Napper swings, including Ms.
Fitzgerald’s, that stated, among other things, the following:
NEVER LEAVE CHILD UNATTENDED
ALWAYS KEEP CHILD IN VIEW EVEN WHILE
SLEEPING
STAY WITHIN REACH OF YOUR CHILD.
The instruction manual stated that failure to use the
restraint system properly may result in the baby falling
from the swing. There was no mention of any potential
risk of entanglement or strangulation. Ms. Fitzgerald
testified at trial that she bought the Lil’ Napper swing new
in 1995 and that it was fully and properly assembled at the
time of purchase, except for portions of the legs which she
installed herself. Ms. Fitzgerald testified that she did not
read the instruction manual or the warning labels affixed
to the infant swing because she felt she could operate the
swing without reading any of the materials that came with
the swing.
By 1997, Century had received four reports of children
who were either injured or killed after becoming entangled
in the Lil’ Napper’s harness straps. Century investigated
each of these accidents and discovered that each had
occurred because the Lil’ Napper had not been used accord-
ing to the instructions. Specifically, the caregivers in each

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4 No. 04-3837
2 It is disputed how long Fitzgerald was downstairs with Trevor
out of her sight. Fitzgerald told the police who investigated the
accident that she was downstairs for 30 minutes. In her deposition
and testimony at trial she stated that she only left Trevor
unattended for a maximum of seven minutes.
situation had applied the harness straps too loosely while
leaving the infant unattended in the swing. Based on this
potential hazard from misuse, Century voluntarily recalled
the Lil’ Napper swing in 1997. Century notified owners of
the Lil’ Napper that it would retrofit the swings with new
seat pads and provide a combination waist/crotch harness
to substitute for the V-shaped harness. The U.S. Consumer
Product Safety Commission (“CPSC” or “commission”)
approved Century’s voluntary recall program.
On the morning of April 2, Ms. Fitzgerald fed Trevor
breakfast and put him in the Lil’ Napper swing where he
usually took a morning nap. While Trevor was in the swing,
Ms. Fitzgerald turned her attention to the other children at
the daycare. Ms. Fitzgerald kept Trevor in her sight while
she fixed breakfast for the other children, but left Trevor
alone while she went downstairs with her mother to deliver
breakfast to the children. 2 When Ms. Fitzgerald returned
upstairs, she found Trevor hanging from the swing with the
harness straps wrapped around his neck. Fitzgerald
untangled Trevor, called 911, and started CPR. Emergency
personnel arrived and took Trevor to the hospital where he
later died from asphyxia.
On the day of the accident, police crime lab experts
inspected the daycare and the condition of the Lil’ Napper
swing. The officer in charge of the investigation testified
that the harness straps of the swing had been tied together
in a fixed knot behind the back of the seat which made
the harness straps of the swing impossible to tighten and
properly fit Trevor. The officer also testified that the

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No. 04-3837 5
harness restraint of the Lil’ Napper had been re-routed
through the wrong slot in the back of the seat.
After Trevor’s death, the Tobers filed a civil suit in state
court against Ms. Fitzgerald, Daycare, and Graco. The
Tobers eventually settled with Ms. Fitzgerald and her
Daycare, and Graco removed the case to federal court. In
their complaint, the Tobers alleged that Graco negligently
designed the swing, failed to include appropriate warn-
ings with the swing, and failed to correct the defect, warn
of the danger and adequately recall the swing. A jury
thought otherwise and returned a verdict in favor of Graco.
This appeal followed.
II. ANALYSIS
A. Evidentiary Ruling
At trial, the Tobers sought to introduce a four-page letter
dated October 23, 1997, from the CPSC to Century. In the
letter, CPSC informed Century of its preliminary deter-
mination that the Lil’ Napper infant swings:
[P]resent a substantial risk of injury to children . . .
Specifically, if the harness-style restraint straps are
loose or unbuckled, a child in the swing seat may
become entangled in the straps and strangle. The
staff welcomes and will give full consideration to
any comments or additional information from the
firm concerning its preliminary determination. . . .
The district court excluded the letter from trial. On
appeal, the Tobers argue that the letter should have been
admitted under Fed. R. Evid. 801(d)(2)(B) as an adoptive

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6 No. 04-3837
3 Fed. R. Evid. 801(d)(2)(B), in relevant part, states as follows:
“[a] statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement of which the party has
manifested an adoption or belief in its truth.”
admission by a party-opponent. 3
We review a district court’s evidentiary decisions for
abuse of discretion and afford great deference to a district
court’s determinations in this area. United States v. Seals,
419 F.3d 600, 606 (7th Cir. 2005). With respect to state-
ments contained in a letter, the failure to reply to a letter
may be introduced as an admission of the statements
contained in the letter when the receiver of the letter
remains silent in a situation where a response would seem
natural or expected. John W. Strong, McCormick on
Evidence § 262 at 171 (5th ed. 1999). The burden is on the
party seeking to introduce the letter to establish that under
the circumstances the failure to respond is so unnatural
that it supports the inference that the party acquiesced to
the statements contained in the letter. Ricciardi v. Chil-
dren’s Hosp. Med. Ctr., 811 F.2d 18, 24 (1st Cir. 1987).
We find that the district court did not abuse its discretion
when it excluded the letter. First, CPSC’s letter does not
indicate that the commission conclusively determined that
the Lil’ Napper was defective. To the contrary, CPSC made
only a “preliminary determination” that the swing pre-
sented a substantial risk of injury if not used properly.
Second, the letter does not mandate any corrective ac-
tion beyond that already voluntarily underway. The com-
mission “acknowledge[d] and encourage[d] the actions
which Century Products ha[d] already taken to correct the
problem” and “accepted Century’s plan as adequate.”
Finally, the Tobers’ argument that the failure to respond
constitutes an adoptive admission is further undermined by

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No. 04-3837 7
4 Evidence that Century voluntarily recalled the Lil’ Napper
in 1997 was admitted at trial and is not now challenged on appeal.
5 Century’s Quality Assurance Manager David Galambos testified
at trial and during his deposition that the Lil’ Napper’s design
was defective and there was a joint decision to recall the product.
The parties do not dispute the admissibility of Galambos’s
(continued...)
the letter itself, which states that: “A firm’s taking correc-
tive action does not constitute admission by the firm that a
substantial product hazard exists.” The district court did
not abuse its discretion when it found that, particularly in
light of these representations in the letter, failure to
respond was not so unnatural as to support an inference of
acquiescence to the commission’s preliminary findings.
The Tobers also make two bootstrapping arguments for
introducing the letter, which we will address briefly. First,
the Tobers argue that Century’s subsequent nonverbal
conduct—recalling the Lil’ Napper swing—amounted to
an adoptive admission that the swing was defective. 4 As we
have just noted, this argument is squarely contradicted in
the letter where the commission states that corrective
action is not necessarily an admission that a product is
defective. Even assuming, arguendo, that the recall
amounted to an admission, such corrective action is still not
an evidentiary basis for admitting the letter.
The Tobers also point to Century’s Quality Assurance
Manager David Galambos’s testimony that there was a
“joint decision” to recall the Lil’ Napper to support their
argument that Graco, then Century, adopted the CPSC’s
determination. Here again, the Tobers erroneously attempt
to bootstrap the admissibility of the CPSC’s October 23
letter to the undisputed admissibility of Century’s Quality
Assurance Manager’s testimony that there was a joint
decision to recall the swing. 5 As we have just stated, Cen-

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8 No. 04-3837
(...continued)
testimony.
tury’s decision to recall the Lil’ Napper, whether made
singularly or in conjunction with CPSC, does not neces-
sarily constitute an admission that the product was defec-
tive.
Even if we believed it was error for the district court to
exclude the letter, the error was harmless because the letter
would have been cumulative of other evidence presented at
trial. The district court admitted the Tobers’ evidence, such
as testimony from corporate representatives, that Century
knew that the Lil’ Napper presented a strangulation risk,
that Century recalled the Lil’ Napper because of that risk,
and that Century improved the harness restraints as a
result of the risk. As a result, the Tobers were not preju-
diced by the district court’s exclusion of CPSC’s October 23
letter to Century.
B. The District Court’s Grant of Judgment as a Matter
of Law
In their complaint, the Tobers alleged that Graco neg-
ligently failed to (1) correct the defect in the Lil’ Napper
swing, (2) warn of the danger presented by the swing, and
(3) recall the swing adequately. In its motion for sum-
mary judgment, Graco argued that Indiana courts do not
recognize a claim for negligent recall. The district court
agreed and granted summary judgment in favor of Graco.
At the pre-trial conference, the court questioned the Tobers
on the substance of their duty-to-warn claim. Counsel for
the Tobers explained that they intended to introduce
evidence that the recall process was delayed, inadequate,
and flawed. The court concluded that the plaintiffs’

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No. 04-3837 9
6 “Post-sale” warnings refer to warnings required where a
manufacturer does not know or have reason to know of a haz-
ard at the time a product is sold, but discovers the hazard
sometime later. Liriano v. Hobart Corp., 700 N.E.2d 303, 307
(N.Y. 1998). Warnings that were or should have been given when
a product was sold are referred to as “point of sale” warnings.
Patton v. Hutchinson Wil-Rich Mfg. Co., 861 P.2d 1299, 1313
(Kan. 1993).
7 It is unclear from the record whether this post-sale, duty-to-
warn claim was ever presented to the district court or to the jury.
8 It is undisputed that the IPLA, Ind. Code §§ 34-20-1-1 to -9-1
(2002) does not expressly prescribe or define a cause of action
arising from a manufacturer’s post-sale duty to warn.
duty-to-warn claim was simply a re-named negligent recall
claim and granted judgment as a matter of law on this
claim.
On appeal, the Tobers contend that Graco was unreason-
ably dilatory in discharging its post-sale 6 duty to warn
of the strangulation hazard posed by the Lil’ Napper and
when Graco finally did issue a post-sale warning, via a
recall, the warning was flawed. 7 The Tobers argue that
the district court erred in granting summary judgment
in favor of Graco because both the Indiana Supreme Court
in Dague v. Piper Aircraft Corp., 418 N.E.2d 207 (Ind.
1981), and the district court in Reed v. Ford Motor Co., 679
F. Supp. 873 (S.D. Ind. 1988) (interpreting Indiana law),
established a post-sale duty to warn under Indiana law. 8 We
find that the Tobers’ argument overstates the holdings in
Dague and Reed, and that the district court properly
granted summary judgment on the Tobers’ post-sale failure-
to-warn claim.
In Dague, this court certified to the Indiana Supreme
Court the following question: Does the IPLA’s statute of
limitation apply to bar plaintiff’s failure-to-warn claim? 418

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10 No. 04-3837
N.E.2d at 209. The Indiana Supreme Court concluded that
the state legislature did not intend to exclude such a claim
from the IPLA because there is no express language in the
IPLA excluding a duty-to-warn claim. Id. at 212. The court
then reasoned that, to the extent a failure-to-warn claim is
based on a theory of negligence seeking damages for an
alleged product defect, such a claim would be governed by
the IPLA and its statute of limitations because the IPLA
expressly states that it is to govern all product-liability
actions, regardless of whether the theory of liability is
negligence or strict liability in tort. Id. The Indiana Su-
preme Court, however, stopped short of recognizing a cause
of action for post-sale failure to warn. The court never
identified any particular section of the IPLA defining a
post-sale duty to warn, nor did the court articulate the
contours of such a cause of action under Indiana common
law.
Similarly, in Reed, the plaintiff sought recovery against
the defendant under theories of strict liability and negli-
gence. 679 F. Supp. at 878. As an element of both claims,
Reed alleged that Ford improperly failed to warn him of the
inherent dangers associated with the transmission system
installed in his truck. Id. In its motion for summary
judgment, Ford argued that, under Indiana law, its duty to
warn of any product defects existed only at the time of the
sale to the original customer. In analyzing §§ 33-1-1.5-2.5(a)
& (b) of the Indiana Code, which preceded §§ 34-20-41-1 and
34-20-4-2 of the IPLA, the court held that there was
insufficient evidence to grant judgment as a matter of law
because the IPLA did not expressly exclude liability under
a theory of post-sale duty to warn. Similar to the court in
Dague, the district court in Reed also stopped short of
recognizing that such a claim exists under the IPLA. 679 F.
Supp. at 879.
In our review of the IPLA as well as state and federal
case law, we too find that, although the Indiana legisla-

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No. 04-3837 11
9 The IPLA § 34-20-6-5 defines substantial alteration as a defense
available to a manufacturer, not as an affirmative defense as the
Tobers contend. An affirmative defense limits or excuses a
defendant’s liability even if the plaintiff establishes a prima facie
case. In contrast, § 34-20-6-5 defines how a manufacturer can
directly controvert a plaintiff’s prima facie case.
The IPLA recognizes as a defense to the Tobers’ prima facie case
that the proximate cause of Trevor’s death was a modification or
alteration of the Lil’ Napper made after the product’s delivery to
the initial user or consumer. See Ind. Code § 34-20-6-5. In other
words, a manufacturer can controvert a plaintiff’s prima facie
case by arguing that an alteration or modification to the product
that was not present when the product left the manufacturer’s
control proximately caused the plaintiff’s physical harm.
ture did not expressly exclude a manufacturer’s post-
sale duty to warn from the IPLA, the statute does not
expressly prescribe or define any cause of action arising
from a post-sale duty to warn. Therefore, the Tobers’ claim
that Graco breached its post-sale duty to warn fails, and the
district court properly granted judgment as a matter of law.
C. Jury Instruction
The Tobers argue that the district court erred when it
instructed the jury that, to prevail on their product liability
claim, they were required to prove that the Lil’ Napper was
not substantially altered when Trevor used the swing. The
Tobers contend that the IPLA should be interpreted to
require them only to prove that the swing, when purchased,
had not been substantially altered. The Tobers argue that,
otherwise, the jury instruction shifted the burden of a
manufacturer’s “affirmative defense,” substantial alteration,
onto the plaintiffs. 9 We disagree.
We review a district court’s instruction to the jury for an
abuse of discretion, unless the instruction was based on

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12 No. 04-3837
an error of law in which case our review is de novo.
United States v. Smith, 415 F.3d 682, 688 (7th Cir. 2005).
Under the IPLA, to prevail at trial, the Tobers must prove
that: (1) the product was defective and, as a result, unrea-
sonably dangerous; (2) the defect existed when the product
left the defendant’s control; (3) the product was expected to
and did reach the consumer without substantial alteration;
and (4) Trevor’s injuries were proximately caused by the
defect in the product. Ritchie v. Glidden Co., 242 F.3d 713,
720 (7th Cir. 2001) (interpreting the IPLA). Consistent with
the IPLA, the district court instructed the jury as follows:
To prevail on their product liability claim, the
Tobers must prove each of the following elements
by a preponderance of the evidence:
1. that Graco was a manufacturer of the part of
the product alleged to be defective and was in
the business of selling the Lil’ Napper;
2. that Graco sold, leased or otherwise put the Lil’
Napper into the stream of commerce;
3. that at the time the Lil’ Napper left the hands
of Graco, it was in a defective condition unrea-
sonably dangerous to any user or consumer;
4. that the Lil’ Napper was expected to reach and
did reach Trevor Tober without substantial
alteration of the condition in which the product
was sold by Graco;
5. that Trevor Tober was in a class of persons that
Graco should have reasonably foreseen as being
subject to the harm caused by the defective
condition;
6. that Trevor Tober was harmed; and
7. that the defective condition of the Lil’ Napper
was a proximate cause of the harm to Trevor
Tober.

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No. 04-3837 13
10 The Tobers’ argument, on the other hand, would result in
limitless manufacturer liability. For example, under the Tobers’
theory, a car manufacturer would be liable for “defective brakes”
even when an end-user of the car intentionally disabled the brake
system and then was unable to stop the car, causing harm to
himself or others.
Both the IPLA and the district court’s instruction re-
quire the Tobers to prove that the product was defective
when it left the manufacturer and remained in the same
defective condition when the end-user, Trevor in this
case, used the product in a manner the manufacturer
intended. See Ind. Code § 34-20-2-1. A manufacturer,
therefore, is liable only for its own defects in the prod-
ucts, and not for defects caused by the alteration or misuse
of its products. 10 Accordingly, the district court’s jury
instruction was not an abuse of its discretion because
neither the IPLA nor the court’s instruction shifted an
undue burden onto the Tobers.
More significantly, even if the jury instruction regarding
product alteration incorrectly represents Indiana law, any
error is harmless. The verdict form indicates that the
jury decided, pursuant to question #3, that the Tobers
had not proven by a “preponderance of evidence that at
the time the Lil’ Napper left the hands of Graco . . . it was
in a defective condition unreasonably dangerous to any user
or consumer.” The jury, therefore, never reached the
question of the presence or absence of alteration, which was
addressed in question #4 on the verdict form. See O.K. Sand
& Gravel, Inc. v. Marietta Tech., Inc., 36 F.3d 565, 569 (7th
Cir. 1994) (holding that when a verdict form indicates that
the jury never reached the instruction in question, error is
typically harmless).

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14 No. 04-3837
III. CONCLUSION
For the foregoing reasons, the rulings of the district court
are A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-05

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