“[T]rial judges are entitled to broad discretion in determining both whether an 11 expert’s non-scientific testimony is reliable and how to measure reliability.”
How later courts described this case
- “[T]rial judges are entitled to broad discretion in determining both whether an 11 expert’s non-scientific testimony is reliable and how to measure reliability.”
- rulings on motions in limine are subject to change when trial unfolds
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 S.S., a minor, by and through his Guardian ) Case No.: 3:21-cv-01367-BEN-MMP
ad Litem Eunjin Stern; EUNJIN STERN, )
12 an individual; WILLIAM STERN, an ) ORDER:
13 individual,, )
) (1) DENYING-IN-PART
Plaintiffs,
14 ) DEFENDANT’S PRETRIAL BRIEF;
15 v. ) and
)
16 PELOTON INTERACTIVE, INC., a ) (2) DENYING PLAINTIFFS’
Delaware corporation; DOES 1 through
17 50, inclusive, ) PRETRIAL BRIEF
)
18 Defendant. ) [ECF Nos. 92, 93]
19 )
20
21
I. INTRODUCTION
22
Plaintiff S.S., a minor, by and through his Guardian ad Litem Eunjin Stern (“S.S.”);
23
Eunjin Stern, an individual (“Mrs. Stern”); and William Stern, an individual (“Mr. Stern”)
24
(collectively, “Plaintiffs”) bring this action against Defendant Peloton Interactive, Inc., a
25
Delaware corporation (“Peloton”) for injuries allegedly sustained in connection with
26
Defendant’s Tread+ treadmill (the “Tread+”). Before the Court are the parties’ respective
27
Briefs outlining various pretrial objections. See ECF Nos. 92, 93. The briefing was
28
1 submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and
2 Rule 78(b) of the Federal Rules of Civil Procedure. ECF No. 102. After considering the
3 papers submitted, supporting documentation, and applicable law, the Court: (1) DENIES-
4 IN-PART Peloton’s Pretrial Brief; and (2) DENIES Plaintiffs’ Pretrial Brief.
5 II. BACKGROUND
6 A. Statement of Facts
7 According to the Complaint, around March 2020, while Mr. Stern was exercising on
8 the Tread+, his three-year-old son, S.S., approached the rear of the machine without Mr.
9 Stern’s knowledge. ECF No. 1-2 (“Compl.”) at 3, ¶ 1; 5, ¶ 10. S.S. was pulled under the
10 450-pound Tread+, with Mr. Stern’s added body weight of 150 pounds. Id. As soon as
11 Mr. Stern realized his child was stuck underneath the Tread+, he dismounted and attempted
12 to remove him, but S.S. was repeatedly sucked back under the Tread+. Id. at 3, ¶ 1. Mrs.
13 Stern came to help. Id. Both parents attempted to pull S.S. from underneath the Tread+
14 by his hands, shoulders, and torso, but they were unable to successfully remove him. Id.
15 at 3, ¶ 2. Mr. Stern attempted to lift the Tread+ but this failed as well. Id. Mr. Stern was
16 able to remove S.S. when Mrs. Stern triggered the Tread+’s ripcord, which caused the
17 Tread+ to come to a halt. Id. at 3–4, ¶ 2. Plaintiffs allege that S.S. sustained injuries along
18 his arms and shoulders, including but not limited to contusions along his torso, stomach,
19 and ribs, as well as a laceration and permanent scarring to his stomach. Id. This is referred
20 to as “the Incident” by the parties.
21 Around May 2021, Peloton issued a recall of its Tread+ Treadmills after the United
22 States Consumer Product Safety Commission (the “CPSC”) cautioned parents against the
23 use of the machines due to the risk of injury and death. Id. at 4, ¶ 3. The CPSC learned of
24 numerous other incidents of children being sucked beneath the treadmills. Id. Plaintiffs
25 allege that Peloton “publicly confessed to the issues affecting its machines,” concluding
26 that it “should have engaged more productively with [the] [CPSC] from the outset.” Id.
27 Peloton added that it “made a mistake in [its] initial response to the” CPSC’s request that
28 the Tread+ be recalled. Id.
1 Plaintiffs further allege how Peloton “became the subject of an investigation by the
2 CPSC.” Id. at 8, ¶ 25. “On April 17, 2021, after investigating the death of at least one
3 child and dozens of injuries like those sustained by [S.S.], the CPSC issued a warning to
4 consumers, which [Peloton] initially refused to support.” Id. “Specifically, the CPSC
5 advised consumers to ‘[s]top using the Peloton Tread+ if there are small children or pets at
6 home,” and the “CPSC issued the warning because there is no safe way to use the Treadmill
7 in a home where children are present.” Id. Plaintiffs allege that initially, Peloton “rejected
8 the CPSC’s recommendation to stop using the Treadmill,” calling the CPSC statement
9 “inaccurate and misleading.” Id. at 8, ¶ 26. Finally, Plaintiffs allege that Peloton made
10 this “representation despite numerous documented injuries to minors, with the intent to
11 encourage the ongoing use and purchase of the Treadmill despite its knowledge that the
12 Treadmill could injure children.” Id. at 8–9, ¶ 26.
13 B. Procedural History
14 On May 7, 2021, Plaintiffs filed suit against Peloton in state court, alleging six causes
15 of action for: (1) negligence; (2) negligent infliction of emotional distress by S.S. as a direct
16 victim; (3) negligent infliction of emotional distress by Mr. and Mrs. Stern as bystanders;
17 (4) intentional misrepresentation; (5) negligent misrepresentation; and (6) intentional
18 concealment. See Compl. Defendant removed the case to this Court.
19 In August 2021, Peloton filed a Motion to Compel Arbitration, see ECF No. 11,
20 which this Court granted-in-part, compelling Mr. Stern and Peloton to arbitration to
21 determine the question of arbitrability—Mrs. Stern and S.S., however, are not bound by
22 the arbitration agreement. See generally ECF No. 15. The parties engaged in discovery
23 and on January 18, 2023, Peloton filed a Motion to Exclude Expert Testimony, see ECF
24 No. 65, which this Court denied, see ECF No. 87.
25 After receiving the parties’ proposed pretrial order and various objections to witness
26 testimony and evidentiary exhibits, the Court ordered that the parties brief their objections.
27 The parties filed Briefs concerning their respective objections, which are now before the
28 Court. For all practical purposes, the Briefs seek to exclude certain evidence at trial. As
1 such, the Court applies the motion in limine standard in analyzing the various requests.
2 III. LEGAL STANDARD
3 Rulings on motions in limine fall entirely within this Court’s discretion. United
4 States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States, 469
5 U.S. 38, 41–42 (1984)). “Evidence is excluded on a motion in limine only if the evidence
6 is clearly inadmissible for any purpose.” Mathis v. Milgard Manufacturing, Inc., No. 16-
7 cv-2914-BEN-JLB, 2019 WL 482490, at *1 (S.D. Cal. Feb. 7, 2019) (Fresenius Med. Care
8 Holdings, Inc., v. Baxter Int’l, Inc., 2006 WL 1646113, at *3 (N.D. Cal. June 12, 2006)).
9 “If evidence is not clearly inadmissible, evidentiary rulings should be deferred until trial to
10 allow questions of foundation, relevancy, and prejudice to be resolved in context.” See
11 Mathis, 2019 WL 482490, at *1 (citing Bensimon, 172 F.3d at 1127). “Denial of a motion
12 in limine does not mean that the evidence contemplated by the motion will be admitted at
13 trial. Instead, denial means that the court cannot, or should not, determine whether the
14 evidence in question should be excluded before trial.” Mathis, 2019 WL 482490, at *1
15 (citation omitted); see also McSherry v. City of Long Beach, 423 F.3d 1015, 1022 (9th Cir.
16 2005) (rulings on motions in limine are subject to change when trial unfolds).
17 IV. DISCUSSION
18 Peloton’s Pretrial Brief seeks to exclude at trial, Plaintiffs’: (1) negligence per se
19 theory; (2) testimony for of CPSC witnesses; (3) CPSC exhibits; and (4) S.S.’s direct victim
20 claim of negligent infliction of emotional distress. ECF No. 93. Plaintiffs’ Pretrial Brief
21 seeks to exclude at trial the opinions of Peloton’s expert Dr. Christopher Thompson. ECF
22 No. 92. The Court rules on each request in turn.
23 A. Plaintiffs’ Negligence Per Se Theory
24 Peloton contends that Plaintiffs’ Memorandum of Facts and Law “set forth a new
25 theory of negligence based upon negligence per se.” ECF No. 93 at 3. Specifically, Peloton
26 explains that Plaintiffs make new allegations that Peloton violated provisions of the
27 Consumer Product Safety Act (“CPSA”) in support of their negligence claim, identifying
28 “10 witnesses from the” CPSC “and numerous documents authored by members of the
1 [CPSC] or submitted to the [CPSC].” Id. Peloton argues that Plaintiffs’ pretrial disclosures
2 alleged violations of various CPSA sections but Plaintiffs failed to provide fair notice of
3 these negligence per se allegations. Id. at 4. First, Peloton contends that the Complaint
4 makes no reference to the CPSA. Id. Second, Peloton argues Plaintiffs failed to “mention
5 the CSPA in [] response to written discovery regarding their negligence contentions.” Id.
6 And third, Peloton argues the negligence per se theory was presented “months after the
7 close of all discovery in their Memorandum of Facts and Law in March 2023.” Id. Peloton
8 concludes that “Courts have precluded plaintiffs from proceeding on claims of negligence
9 per se when the plaintiff has failed to provide sufficient notice to support this theory, failed
10 to amend the complaint to allege sufficient facts, and failed to provide any references in
11 response to discovery, as is the case here.” Id.
12 Plaintiffs argue that “negligence per se is an evidentiary device utilized in negligence
13 actions, rather than a cause of action.” ECF No. 97 at 4. Plaintiffs explain that the
14 evidentiary presumption of the negligence per se doctrine “affects the standard of care in a
15 cause of action for negligence.” Id. (quoting Turner v. Seterus, Inc., 27 Cal. App. 5th 516,
16 534 (2018)). Plaintiffs essentially argue that the CPSA statutory provisions may be
17 adopted as the standard of care for their negligence claim but that negligence per se is not
18 itself a cause of action. ECF No. 97 at 4.
19 Plaintiffs are correct that negligence per se serves as an evidentiary doctrine, and not
20 its own cause of action. See Harris v. Burlington N. Santa Fe R.R., No. ED CV-09197-
21 ABC-JCX, 2013 WL 12122668, at *2–3 (C.D. Cal. July 12, 2013) (citing Spencer v. DHI
22 Mortg. Co., Ltd., 624 F.Supp.2d 1153, 1161–62 (E.D. Cal. 2009)). But “that negligence
23 per se is not a cause of action does not relieve Plaintiff[s] of [] [their] burden to allege facts
24 to support this theory.” Harris, 2013 WL 12122668, at *3. As such, Plaintiffs must
25 sufficiently plead the “elements” of their negligence per se theory, even when the theory
26 falls within a general negligence claim. See In re Solara Med. Supplies, LLC Customer
27 Data Sec. Breach Litig., 613 F. Supp. 3d 1284, 1296 (S.D. Cal. 2020) (explaining that “[i]n
28 order to invoke negligence per se under California law, Plaintiffs must allege four essential
1 elements . . . .”). Those elements are codified in Rule 669(a) of the California Evidence
2 Code as set forth below, explaining that a person’s failure to exercise due dare is presumed
3 where:
4
(1) He violated a statute, ordinance, or regulation of a public entity;
5
(2) The violation proximately caused death or injury to person or property;
6
7 (3) The death or injury resulted from an occurrence of the nature which the
statute, ordinance, or regulation was designed to prevent; and
8
9 (4) The person suffering the death or the injury to his person or property was
one of the class of persons for whose protection the statute, ordinance, or
10
regulation was adopted.
11
12
See also Spencer, 642 F. Supp. 2d at 1162 (quoting the same).
13
Here, Plaintiffs’ Complaint fails to allege that Peloton violated a statute, ordinance,
14
or regulation of a public entity. See Harris, 2013 WL 12122668, at *3 (“Plaintiff did not
15
provide fair notice of the grounds for her claim for negligence, including identifying any
16
statutory violations.”) (internal quotation marks omitted). Although Plaintiffs made certain
17
allegations discussing the CPSC—e.g., that Peloton erred in responding to the CPSC’s
18
initial recall request—there is no mention of Peloton violating a particular statute, let alone
19
any statute. See Compl. at 4, ¶ 3; 8, ¶ 25. And Plaintiffs have not sought leave to amend
20
their Complaint. Even in Plaintiffs’ Opposition to Peloton’s Pretrial Brief at issue here,
21
the Court finds no request to amend the Complaint. Accordingly, the Court GRANTS
22
Peloton’s request and EXCLUDES evidence specific to Plaintiffs’ negligence per se
23
theory.1 Cf. In re Solara Med. Supplies, 613 F. Supp. 3d at 1296 (dismissing a negligence
24
25
1 The Court notes that evidence related to Plaintiffs’ negligence per se theory and
26 general negligence theory may overlap significantly. Plaintiffs may of course, use
27 admissible, overlapping evidence to support their general negligence theory, but the Court
will not employ a statutory standard of care based on Plaintiffs’ untimely negligence per
28
1 per se cause of action for failure to plead facts supporting the application of the negligence
2 per se doctrine). Because the Court finds Plaintiffs did not plead allegations adequate to
3 support a theory of negligence per se, the parties’ remaining arguments are not addressed.
4 B. Whether CPSC Witnesses May Testify at Trial
5 Plaintiffs identified ten CPSC witnesses to testify at trial, and Peloton makes various
6 arguments that they should be excluded. First, Peloton argues that “none of these witnesses
7 have any personal knowledge regarding the Incident as the Incident was never reported or
8 discussed beyond the Stern family.” ECF No. 93 at 6. Peloton explains this renders any
9 testimony from these witnesses irrelevant on liability and damages and should be excluded
10 pursuant to Federal Rule of Evidence 401. Id. The Court finds Peloton’s relevance
11 argument unpersuasive.
12 Relevance is broad. Pursuant to Federal Rule of Evidence 401, “[e]vidence is
13 relevant if: (a) it has any tendency to make a fact more or less probable than it would be
14 without the evidence; and (b) the fact is of consequence in determining the action.”
15 Although the CPSC witnesses did not personally observe the Incident, as members of the
16 Commission’s investigation against Peloton, they may have personal knowledge respecting
17 the Tread+ machine and the occurrence of similar events. In fact, Plaintiffs’ intentional
18 misrepresentation claim alleges that Peloton made false representations to the CPSC
19 respecting the Tread+’s safety with respect to small children. Peloton allegedly takes the
20 position that the Incident did not actually happen, or at least did not happen to the extent
21 Plaintiffs’ claim. Testimony of other similar incidents from CPSC witnesses could tend to
22 make the fact of whether the Incident happened (and to what extent) more or less probable,
23 which is clearly a fact of consequence in this action. Given the allegations in Plaintiffs’
24 Complaint, and Peloton’s counterarguments, the Court does not find CPSC witness
25 testimony irrelevant.
26 Second, Peloton argues that Plaintiffs’ disclosure of the ten CPSC witnesses is
27 untimely. ECF No. 93 at 5. Peloton claims that none of the ten witnesses were “identified
28 prior to the close of all discovery, and must be precluded from testifying.” Id. Plaintiffs
1 counter that the “witnesses were not in existence or otherwise made public until after the
2 discovery cutoff in this action and [Peloton] had knowledge of the private allegations,
3 investigations and witnesses since May 5, 2021, which the documents released in 2023 by
4 the CPSC demonstrate.” ECF No. 97 at 3. The Court tends to agree with Plaintiffs on this
5 point. The Complaint contains allegations involving the CPSC and its investigation into
6 Peloton’s Tread+. Furthermore, Plaintiffs do attach some discovery related to the CPSC
7 recall at issue. ECF No. 97-1 at 15, 17, 18. In its Reply, Peloton reiterates the arguments
8 addressed below, but does not provide additional argument regarding notice of the
9 witnesses. ECF No. 99 at 3. Given the limited information provided, the Court will not
10 preclude the witnesses for lack of notice at this time.
11 Finally, Peloton argues that under 16 C.F.R. § 1016.4(a), “[n]o Commission
12 employee shall testify in his or her official capacity in any private litigation, without
13 express authorization from the Commissioner’s General Counsel . . . .” ECF No. 93 at 6.
14 Peloton argues that it “has received no information that [CPSC] authorization has been
15 requested of and granted by the Commission’s General Counsel.” Id. Finally, Peloton
16 argues “there is no information provided with respect to where these witnesses from the
17 Commission reside.” Id. “To the extent that these witnesses reside in or near Bethesda,
18 Maryland, where the Commission is headquartered, the distance is beyond the power of a
19 subpoena issued in this District and these witnesses cannot be compelled to testify.” Id.
20 (citing Fed. R. Civ. P. 26).
21 Peloton is correct that Federal Regulations require Plaintiffs to obtain authorization
22 from the CPSC’s General Counsel for any CPSC employee to testify in this private
23 litigation. See 16 C.F.R. § 1016.4(a) (“No Commission employee shall testify in his or her
24 official capacity in any private litigation, without express authorization from the
25 Commission’s General Counsel. The Commission may, in its discretion, review a decision
26 by the General Counsel to authorize such employee testimony. The General Counsel shall
27 in such instances, where time permits, advise the Commission, on a no objection basis, of
28 the authorization of such employee testimony.”). Plaintiffs provide no response respecting
1 Peloton’s § 1016.4 argument. As such, unless Plaintiffs have obtained the requisite
2 permission, any testimony from CPSC witnesses will be excluded at trial pursuant to 16
3 C.F.R. § 1016.4(a).
4 With respect to subpoenas, 16 C.F.R. § 1016.4(b) states:
5
If any Commission employee is served with a subpoena seeking testimony in
6
private litigation, he or she must immediately notify the Office of the General
7 Counsel. The Office of the General Counsel, in conjunction with the
Department of Justice, will (1) take steps to quash the subpoena or (2) direct
8
the employee to appear in response to the subpoena but refuse to testify on the
9 ground that it is prohibited by this section.
10
11 Based on subsection (b), it appears the Office of General Counsel and the Department of
12 Justice will handle subpoenas as they come in. As for the location of the witnesses,
13 Plaintiffs do not respond to Peloton’s argument and the Court will not speculate as to
14 whether those witnesses are beyond the reach of subpoenas—there is currently no motion
15 to quash any subpoena before this Court. Lastly, as noted above, per subsection (a),
16 Plaintiffs need authorization from CPSC’s General Counsel for any CPSC employee to
17 testify in private litigation. To the extent the requisite authorization has not been obtained
18 (the Court does not make a finding as to authorization at this time), the Court GRANTS
19 Peloton’s request to exclude Plaintiffs’ CPSC witnesses from testifying.
20 C. Whether CPSC Exhibits May Be Introduced at Trial
21 Peloton argues the majority of Plaintiffs’ Exhibits identified in the Joint Pre-Trial
22 Order “post-date the Incident, were never produced during discovery, post-date the fact
23 and expert discovery cut-off, and/or may be considered subsequent remedial measures and
24 therefore must be precluded pursuant to Fed. R. Evid. 401 and/or 407.” ECF No. 93 at 6.
25 Peloton contends that “Plaintiffs’ Exhibits Nos. 27, 28, 29, 31, 26, 30, 25, and 24 also post-
26 date the close of discovery in this action and were never produced.” Id. “Exhibits 23A,
27 23AA, 40, 41, and 24 [supposedly] relate to Peloton’s voluntary recall and if the Court
28 determines that they are relevant to Plaintiffs’ claims, they would nevertheless be precluded
1 from evidence via Fed. R. Evid. 407.” Id. at 6–7. Peloton argues that “[d]ocuments created
2 after the Incident are irrelevant to liability and damages,” and that “[n]one of the documents
3 are specific to the Incident, or involve an investigation of the Incident as Plaintiffs never
4 reported the Incident to anyone, including Peloton.” Id. at 7.
5 Peloton explains that it would be prejudicial to allow Plaintiffs to introduce evidence
6 identified after the close of discovery, and that many of the post-discovery documents are
7 hearsay and cannot establish Peloton’s liability for an Incident that occurred three years
8 prior. Id. Finally, Peloton argues that Plaintiffs “identified and produced Exhibit 36, which
9 is ostensibly a copy of the Commission’s response to a FOIA request, however only a
10 placeholder exists with no actual documents produced. Peloton cannot determine at this
11 late date what the documents are intended to be.” Id. Peloton argues “[t]hey have never
12 been produced and should be precluded.” Id. Essentially, Peloton is arguing that the
13 Exhibits are precluded by Federal Rules of Evidence Rule 401 (for lack of relevance), Rule
14 802 (inadmissible hearsay), and Rule 407 (subsequent remedial measures).2
15 Plaintiffs again counter that the documents “were not in existence or otherwise made
16 public until after the discovery cutoff in this action and [Peloton] had knowledge of the
17 private allegations, investigations and witnesses since May 5, 2021, which the documents
18 released in 2023 by the CPSC demonstrate.” ECF No. 97 at 3. Plaintiffs further argue that
19 “CPSC findings and reports are admissible pursuant to Federal Rule of Evidence 803(8),”
20 citing other cases that have admitted CPSC documents under the public records (and
21 business records) exception to hearsay. ECF No. 97 at 5. Plaintiffs also contend Peloton
22 “has maintained that the subject incident at issue in this action could not have happened,
23 did not happen, that S.S.’ injuries as disclosed could not have happened and that [Peloton]
24 could not have and did [not] need to have taken precautionary measures to prevent the
25
26 2 The Court notes Peloton’s notice argument and again finds it unpersuasive.
27 Plaintiffs’ Complaint refers to the CPSC investigation, which Peloton was directly
involved in. Although Plaintiffs should have served supplemental discovery, it seems that
28
1 incident.” Id. at 5–6. Plaintiffs argue that “[a]s such, the exceptions to Rule 407 allow
2 Plaintiffs to proffer evidence of similar incidents, investigations into these incidents and
3 the ease of which these incidents could have been prevented.” Id. at 6.
4 As an initial matter, the Court notes that in its Order setting the briefing schedule, it
5 asked the parties to attach “all testimony and exhibits at issue.” ECF No. 88. The Exhibits
6 were provided to the Court by Peloton. It seems that even if the Exhibits were not produced
7 by Plaintiffs, Peloton would had access to them, given that Peloton was the focus of the
8 CPSC proceedings and internal investigation at issue—though there appears to be at least
9 one Exhibit that Peloton is lacking entirely.3
10 1. Relevance
11 As stated above, Federal Rule of Evidence 401 provides that “[e]vidence is relevant
12 if: (a) it has any tendency to make a fact more or less probable than it would be without the
13 evidence; and (b) the fact is of consequence in determining the action.” Based on the
14 information before the Court, it finds the Exhibits concerning the CPCS investigation of
15 the Tread+ are relevant for the same reasons it finds the CPSC witness testimony relevant.
16 See supra Part IV.B. The Exhibits primarily center on the Tread+ and, as alleged here, the
17 investigation focused on pets and small children being pulled under. As such, the Court
18 will not exclude the Exhibits for lack of relevance. Cf. Gopher Media, LLC v. Spain, No.
19 3:19-cv-02280-CAB-KSC, 2020 WL 12688143, at *7 (S.D. Cal. Aug. 24, 2020) (citing
20 Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993)) (“As noted, relevance
21 is broad and not limited to the allegations in plaintiff’s Complaint.”).
22 2. Hearsay
23 Pursuant to Federal Rule of Evidence 802, hearsay is not admissible unless otherwise
24 stated in: (1) a federal statute; (2) the Federal Rules of Evidence; or (3) other rules
25
26
27
28
1 prescribed by the Supreme Court. Plaintiffs cite the business records4 and public records5
2 exceptions to the rule against hearsay.
3 The Ninth Circuit has yet to address whether CPSC documents can be used in private
4 litigation and little precedent on the subject exists. However, Plaintiffs rely on four cases,
5 where CPSC documents have been allowed, three of which Peloton attempts to distinguish.
6 First, in United States v. Midwest Fireworks Manufacturing Co., 248 F.3d 563 (6th Cir.
7 2001), the CPSC exhibits involved fireworks, including sample collection and lab reports,
8 a compliance assessment worksheet, and a letter of advice from the CPSC to the
9 defendants. The Sixth Circuit affirmed the district judge admitting the documents under
10 the public records exception to hearsay. Id. at 566–67. The Court explained that
11 “[a]dmitting the records under the 803(8) exception is a practical necessity that must be
12 afforded to government officers ‘who have made in the course of their duties thousands of
13 similar written hearsay statements concerning events coming within their jurisdictions.’”
14 Id. (citation omitted). Peloton argues that here, the Sterns never reported the Incident to
15 anyone outside of their immediate family, and that no evidence exists that the CPSC had
16 specific information regarding the Incident. ECF No. 99 at 4. The Court is not persuaded.
17
18 4 Federal Rule of Evidence 803(6) allows “[a] record of an act, event, condition,
opinion, or diagnosis if: (A) the record was made at or near the time by—or from
19
information transmitted by—someone with knowledge; (B) the record was kept in the
20 course of a regularly conducted activity of a business, organization, occupation, or calling,
whether or not for profit; (C) making the record was a regular practice of that activity; (D)
21
all these conditions are shown by the testimony of the custodian or another qualified
22 witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
23 permitting certification; and (E) the opponent does not show that the source of information
or the method or circumstances of preparation indicate a lack of trustworthiness.”
24 5 Federal Rule of Evidence 803(8) allows records or statements of a public office, if
25 they set out: (1) the office’s activities; (2) a matter observed while under a legal duty to
report, but not including, in a criminal case, a matter observed by law-enforcement
26 personnel; or (3) in a civil case or against the government in a criminal case, factual
27 findings from a legally authorized investigation. In addition, the opponent of the evidence
“does not show that the source of information or other circumstances indicate a lack of
28
1 The Court already found that evidence of similar incidents is at the very least, relevant to
2 the case. Although the exact situation involving Plaintiffs may not be analyzed in the
3 Exhibits at issue, it seems that similar situations of children being sucked under the Tread+
4 will be. Peloton does not argue the specifics of the hearsay rule or exceptions and as such,
5 the Court does not delve into them.
6 Second, in Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir. 1998),
7 the Court found no error by the district court when it allowed “reference to CPSC published
8 statistics on minibike-related injuries.” Id. at 511. The defendants in Morales argued that
9 “because none of the statistics were representative of accidents that occurred with the
10 motorcycle in question in children nine to twelve years of age, and because the evidence
11 was based upon unreliable data, it should have been excluded.” Id. Peloton argues that
12 here, “Plaintiffs are not attempting to introduce statistics and there is no expert that is
13 relying on the documents to form an opinion.” ECF No. 99 at 4. Peloton continues that
14 “[u]pon examination, the documents Plaintiffs are attempting to introduce have no
15 relevance to the case at hand.” Id. The Court disagrees. First, Peloton makes no arguments
16 specific to the Exhibits themselves for purposes of any analysis by this Court. Second,
17 Peloton’s argument regarding Plaintiffs’ expert is set forth in Peloton’s Reply Brief,
18 meaning Plaintiffs have not had the opportunity to challenge it. Third, nothing in the
19 Morales decision indicates that an expert’s reliance is required to admit such a document.
20 The Court does not know whether an expert intends to rely on the Exhibits, or how
21 Plaintiffs plan to introduce them at trial. As such, the Court is unpersuaded by Peloton’s
22 application of Morales.
23 Finally, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1970), at issue was an
24 investigative report in an action for deaths resulting from an airline crash. The parties
25 disputed whether the crash was a result of pilot error or equipment malfunction, making
26 the report relevant to causation. Peloton again argues that “[n]one of the documents
27 Plaintiffs seek to introduce here are specific to the March 19, 2020 incident that gives rise
28 to the instant action,” and that no investigation occurred into to S.S.’s injuries. ECF No.
1 99 at 4. Peloton’s argument is unconvincing. First, the Supreme Court in Beech Aircraft
2 engaged in a much larger discussion of admitting fact/opinion evidence for purposes of
3 Rule 803(8)(C), holding “that portions of investigatory reports otherwise admissible under
4 Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion.”
5 Id. at 162–70. Peloton does not argue how the Exhibits at issue here fall outside of the
6 barriers of Rule 803(8)(C) set forth in Beech Aircraft, other than to say the Exhibits do not
7 specifically analyze the Incident at issue. As explained above, because the CPSC
8 investigation allegedly focused on small children being sucked under the Tread+—the
9 precise scenario that Plaintiffs allege—the Court will not exclude all CPSC Exhibits
10 outright. Again, there are no arguments applying the hearsay rules to the Exhibits at issue,
11 limiting this Court’s analysis. Accordingly, the Court will not exclude the CPSC Exhibits
12 based on hearsay at this time.
13 3. Subsequent Remedial Measures
14 “Under [Federal] Rule [of Evidence] 407, a plaintiff may not introduce evidence of
15 measures taken ‘that would have made an earlier injury or harm less likely to occur’ (i.e.,
16 ‘remedial actions’) to prove negligence, culpable conduct, a defect in a product or its
17 design, or a need for a warning or instruction.” Maiorano v. Home Depot U.S.A., Inc., No.
18 3:16-cv-02862-BEN-MDD, 2018 WL 2128609, at *2 (S.D. Cal. May 9, 2018) (quoting
19 Fed. R. Evid. 407). “However, ‘the court may admit this evidence for another purpose,
20 such as impeachment or—if disputed—proving ownership, control, or the feasibility of
21 precautionary measures.’” Id.
22 Contrary to Peloton’s contention, the mere fact the documents post-date the accident
23 does not mean they constitute subsequent remedial measures. Here, many of the Exhibits
24 pertain to the CPSC investigation and not remedial measures, which are not subject be to
25 exclusion under Rule 407. See Est. of Nunez by & through Nunez v. Cnty. of San Diego,
26 No. 3:16-cv-01412-BEN-MDD, 2019 WL 2238655, at *3 (S.D. Cal. May 23, 2019) (“By
27 its terms, [FRE 407] is limited to measures that would have made the harm less likely to
28 occur; it does not extend to post-incident investigations into what did occur.”) (citation
1 omitted). And Peloton’s conclusory argument provides little information for the Court to
2 analyze. However, Peloton is correct that certain Exhibits state how Peloton was taking
3 measures to change the design of the Tread+ and improve safety. For example, Exhibits
4 23A and 23AA note that Peloton continued “to work on hardware modifications.” Ex. C
5 to Declaration of Jade N. Tran, ECF No. 93-1 (“Tran Decl.”). Exhibit 23 B further noted
6 that Peloton would “be making additional improvements in the coming weeks and months
7 to ensure the safety of their users . . . .” Id. Most specific was the statement in Exhibit 24,
8 stating how “Peloton is working on a rear guard that would address the hazard at the back
9 of the treadmill but no repair has been approved to date.” Id.
10 Even so, Peloton also fails to respond to Plaintiffs’ argument that exceptions to Rule
11 407 apply (i.e., that the incident did not happen, could not have happened, and that Peloton
12 was not required to take precautionary measures). Although Plaintiffs fail to specify and
13 analyze those exceptions, it appears Plaintiffs are arguing that feasibility is in question.
14 Furthermore, Peloton similarly fails to point to the specific information to be excluded, nor
15 does it address whether it intends to make counterarguments that invoke feasibility. Given
16 the limited argument, the Court cannot say the Exhibits are inadmissible for any purpose.
17 Accordingly, the Court will not exclude the Exhibits at this time but will revisit the issue
18 the during the pretrial conference and/or in the context of trial.
19 D. Objection to S.S.’s Direct Victim Claim for Negligent Infliction of
20 Emotional Distress
21 Peloton argues that Plaintiff S.S. cannot recover as a direct victim for his negligent
22 infliction of emotional distress claim. ECF No. 93 at 7–8. Peloton contends that the
23 California Supreme Court has allowed plaintiffs to recover damages as direct victims in
24 only three types of factual scenarios: (1) the negligent mishandling of corpses; (2) the
25 negligent misdiagnosis of a disease that could potentially harm another; and (3) the
26 negligent breach of a duty arising out of a preexisting relationship. Id. at 7–8. Peloton
27 argues that none of the above scenarios apply in this case, and that “S.S. would be entitled
28 to pursue emotional distress as part of his general negligence claim as he sustained
1 injuries.” Id. at 8.
2 In response, Plaintiffs state that “it is unclear why Plaintiffs’ negligent infliction of
3 emotional distress cause of action is being addressed by [Peloton] in briefing concerning
4 evidence and evidentiary objections.” ECF No. 97 at 6. The Court agrees. Unlike
5 Plaintiffs’ negligence per se allegations discussed above, Plaintiffs’ negligent infliction of
6 emotional distress claim (by S.S. as a direct victim) is clearly alleged in the Complaint.
7 Peloton could have filed a motion to dismiss or motion for summary judgment seeking
8 dismissal of the claim as a matter of law. No such motions were filed. Accordingly, the
9 Court will not address the issue here.
10 E. Plaintiffs’ Pretrial Objection that Dr. Thompson’s Opinions Are
11 Duplicative, Lack Foundation, and Are Not Based on Personal
12 Knowledge
13 Plaintiffs note that Peloton “designated two medical experts, Dr. Christopher
14 Thompson, M.D. and Dr. Matthew F. Carroll, M.D.,” and that both are psychiatrists. ECF
15 No. 92-1 at 3. Plaintiffs claim that Peloton “initially designated Dr. Thompson, but was
16 unable to coordinate Independent Medical Examinations due to Dr. Thompson’s
17 unavailability and scheduling constraints.” Id. Plaintiffs argue that Dr. Thompson’s
18 testimony would be “superfluous, redundant, duplicative” and would “increase the length
19 of trial . . . unnecessarily.” Id. Plaintiffs make this objection pursuant to Federal Rule of
20 Evidence 403.
21 In addition to being cumulative, Plaintiffs argue that Dr. Thompson lacks “the
22 requisite personal knowledge necessary to provide any opinions,” and that “his reports
23 similarly lack foundation.” Id. at 5. Plaintiffs contend that Dr. Thompson took no
24 “examinations in the context of this action,” and that “his testimony is not based on
25 sufficient facts or data,” contrary to Federal Rule of Evidence 702(b). Plaintiffs argue that
26 “[m]uch like a witness who lacks personal knowledge under Federal Rule of Evidence 602,
27 Dr. Thompson’s testimony and reports should be excluded.” Id. at 5. Plaintiffs attach each
28 expert’s report to their Brief but fail to cite to the reports or explain how the testimony is
1 duplicative. Nevertheless, the Court reviewed the opinions of Peloton’s respective experts.
2 Although some overlap between Dr. Thompson’s and Dr. Carroll’s reports exists,
3 their opinions focus on different aspects of the case. For example, both reports focus on
4 Mrs. Stern’s mental health as it relates to the alleged Incident. However, Dr. Carroll’s
5 inquiry appears to center on whether Mrs. Stern suffers from PTSD. Dr. Carroll also
6 provides opinions as to the necessary causes of Mrs. Stern’s evaluation, as well as the
7 treatment employed. Conversely, Dr. Thompson’s report focuses on Dr. Matthews’
8 evaluation of Mrs. Stern—including how that evaluation was limited—as well as how Dr.
9 Matthews’ treatments were excessive. Dr. Thompson further reviewed Ms. Roughan’s cost
10 analysis of Mrs. Stern’s future mental health care, concluding the costs were overestimated.
11 The Court notes some overlap respecting the appropriate treatment for Mrs. Stern but as a
12 whole, determines the reports are quite different with respect to the ultimate opinions and
13 evaluation of information. Finding the reports independently formed and distinct, the
14 Court need not exclude Dr. Thompon’s report simply because certain opinions overlap with
15 those of Dr. Carroll. See Stone Brewing Co., LLC v. MillerCoors LLC, No. 3:18-cv-00331-
16 BEN-LL, 2020 WL 907060, at *13 (S.D. Cal. Feb. 25, 2020) (“The Court finds that even
17 if there are minor points of overlap between Poret and Stec’s survey’s, each was
18 independently formed and is distinct from the other. Moreover, each offers a relevant and
19 reliable counter analysis of Stewart’s likelihood of confusion survey analysis, which is a
20 critical issue in this case. Thus, the motion is DENIED on this point.”). Plaintiffs may
21 object at trial should the testimony become overly duplicative.
22 As to foundation and personal knowledge, Dr. Thompson’s report states that he did
23 not conduct an in-person interview of Mrs. Stern and therefore, his “opinions are based on
24 review of the available records (including the reports of other evaluators/experts), [his]
25 education, training, and experience, and [his] knowledge of the existing scientific
26 literature.” ECF No. 92-2 at 147. Rule 702 of the Federal Rules of Evidence set forth the
27 following requirements to establish admissibility of expert opinion evidence: (1) the
28 witness must be sufficiently “qualified as an expert by knowledge, skill, experience,
1 training, or education;” (2) the scientific, technical, or other specialized knowledge must
2 assist the trier of fact” either “to understand the evidence” or “to determine a fact in issue;”
3 (3) the testimony must be “based on sufficient facts and data;” (4) the testimony must be
4 “the product of reliable principles and methods;” and (5) the expert must reliably apply the
5 principles and methods to the facts of the case. “District courts have broad discretion under
6 Rule 702 . . . . concerning the admissibility of expert testimony.” Shore v. Mohave Cnty.,
7 State of Ariz., 644 F.2d 1320, 1322 (9th Cir. 1981) (citations omitted).
8 When evaluating expert testimony, the trial court is “a gatekeeper, not a fact finder.”
9 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quoting United States v. Sandoval-
10 Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)). “Shaky but admissible evidence is to be
11 attacked by cross examination, contrary evidence, and attention to the burden of proof, not
12 exclusion.” Primiano, 598 F.3d at 564 (citation omitted). The district judge is “supposed
13 to screen the jury from unreliable nonsense opinions, but not exclude opinions merely
14 because they are impeachable.” Alaska Rent–A–Car, Inc. v. Avis Budget Grp., Inc., 738
15 F.3d 960, 969 (9th Cir. 2013). Simply put, “[t]he district court is not tasked with deciding
16 whether the expert is right or wrong, just whether his testimony has substance such that it
17 would be helpful to a jury.” Id. at 969–70. “When an expert meets the threshold
18 established by Rule 702 as explained by the Supreme Court in Daubert, the expert may
19 testify and the jury decides how much weight to give that testimony.” Primiano, 598 F.3d
20 at 565. “Trial courts have ‘broad discretion’ in this analysis,” see Mathis, 2019 WL
21 482490, at *1 (quoting United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000), and
22 the tests for admissibility in general, and reliability, are flexible. Primiano, 598 F.3d at
23 564.
24 Although Dr. Thompson did not perform a scientific test, his opinions appear to be
25 based on his experience and knowledge in the industry and his understanding of psychiatric
26 medicine and the scientific literature. Whether Dr. Thompson’s testimony/opinions are
27 correct is not for the Court to decide. See Stone Brewing, 2020 WL 907060, at *2 (quoting
28 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995))
1 (“[T]he test under Daubert is not the correctness of [experts’] conclusions but the
2 soundness of [their] methodology.”). Plaintiffs do not state the test for expert testimony,
3 let alone make any arguments respecting the requirements. Plaintiffs likewise do not attack
4 Dr. Thompson’s methodology other than to argue that Dr. Thompson did not interview
5 Mrs. Stern. But Dr. Thompson’s opinions assess evaluations performed by others.
6 Given the limited argument provided by Plaintiffs, the Court exercises its broad
7 discretion under Rule 702 and declines to exclude Dr. Thompson’s testimony. See Leeds
8 LP v. United States, No. 08-cv-00100-BTM-BLM, 2010 WL 3911429, at *2 (S.D. Cal.
9 Oct. 5, 2010) (citing Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th
10 Cir. 2004) (“[T]rial judges are entitled to broad discretion in determining both whether an
11 expert’s non-scientific testimony is reliable and how to measure reliability.”)). The Court
12 does note, however, that its finding provides no opinion as to the strength or credibility that
13 should be afforded to Dr. Thompson’s opinions. Those questions are for the jury, and the
14 Court may, of course, respond to any objections made during trial. Furthermore, as always,
15 Peloton must lay the proper foundation for Dr. Thompson’s testimony. Disputes
16 surrounding foundation and personally knowledge will be resolved in context, at trial. See
17 Mathis, 2019 WL 482490, at *1. Accordingly, Plaintiffs’ Pretrial Brief requesting
18 exclusion of Dr. Thompson’s testimony and report is DENIED.
19 V. CONCLUSION
20 For the reasons set forth above, the Court ORDERS as follows:
21 1. The Court GRANTS Peloton’s request to exclude Plaintiffs’ negligence per
22 se theory for failure to adequately plead that theory in their Complaint.
23 2. To the extent Plaintiffs have not obtained the requisite authorization for CPSC
24 witnesses to testify, the Court GRANTS Peloton’s request to exclude these witnesses
25 pursuant to 16 C.F.R. § 1016.4(a).
26 3. The Court DENIES Peloton’s request to outright exclude the CPSC Exhibits
27 at issue. However, those Exhibits discussing subsequent remedial measures will be
28 excluded if no exception is invoked. As to Exhibit 36, Plaintiffs must produce this
1 || document no later than November 3, 2023, and the Court will consider its admissibility at
2 || the pretrial conference.
3 4. The Court DENIES Peloton’s request to dismiss S.S.’s direct victim negligent
4 || infliction of emotional distress claim.
5 5. The Court DENIES Plaintiffs’ request to exclude Dr. Thompson’s expert
6 || report and testimony.
7 IT IS SO ORDERED. | .
8|| DATED: October 27, 2023
9 | ROGER T. BENITE
10 United States District Judge
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