In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3837

GREGORY TOBER AND STACI TOBER,

Plaintiffs-Appellants,

v.

GRACO CHILDREN’S PRODUCTS,

INCORPORATED,

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.

____________

ARGUED SEPTEMBER 19, 2005—DECIDED DECEMBER 8, 2005

____________

Before RIPPLE, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, 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-
2 No. 04-3837

1 Through an asset purchase, Graco assumed liability for Century’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. Fitzgerald’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 buckle 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
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-theshoulder harness straps and positioned on top of the infant’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 according to the instructions. Specifically, the caregivers in each
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
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 warnings 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 determination 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
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 statements 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. Children’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 presented a substantial risk of injury if not used properly.

Second, the letter does not mandate any corrective action beyond that already voluntarily underway. The commission “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
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 corrective 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-
8 No. 04-3837

(...continued)

testimony.

tury’s decision to recall the Lil’ Napper, whether made

singularly or in conjunction with CPSC, does not necessarily constitute an admission that the product was defective.

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 prejudiced 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 negligently 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 summary 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’
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 hazard 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-towarn 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 unreasonably dilatory in discharging its post-sale6

 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 failureto-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
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 Supreme 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 negligence. 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-
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 postsale 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
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, unreasonably 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 unreasonably 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.
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 require 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 products, 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).
14 No. 04-3837

III. CONCLUSION

For the foregoing reasons, the rulings of the district court

are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-8-05