A twenty-two month-old child suffered terrible injuries after ingesting magnets manufactured by Maxfield & Oberton. After an eight-day trial, the jury returned a defense verdict. The District Court denied plaintiffs’ motion for new trial, and the U.S. Fifth Circuit affirmed.

In 2009, M&O manufactured and distributed small neodymium “Buckyball” magnets that can be manipulated into various shapes. They were labeled as appropriate for children ages 13 and up. In 2010, the Consumer Product Safety Commission recalled the magnets and worked with the company to clarify the label to make it clear that the magnets were not intended for children of any age, and could cause serious injury or death if swallowed or inhaled. In March 2011, the plaintiffs purchased a set of Buckyball magnets with the new label.

The plaintiffs pursued a defective design claim under the Mississippi Product Liability Act, and sought to introduce various pieces of post-sale evidence, including July 2012 correspondence between the CPSC and M&O’s attorney discussing the risk of swallowing Buckyball magnets and its investigation into M&O, as well as the CPSC’s July 2012 Administrative Complaint against M&O, the CPSC Hazardous Magnet Rule Briefing Package (a proposal related to the mandatory safety standard the CPSC adopted in 2014), and the CPSC’s Amended Responses to Requests for Admissions in its administrative action against M&O.  The District Court largely granted the defendant’s pre-trial motion in limine, allowing the plaintiffs to introduce a post-sale study that one of their medical experts relied on, but otherwise instructing the parties to “stick to the MPLA.” Notwithstanding the in limine ruling, the plaintiffs did use some post-sale evidence to cross-examine witnesses.

On appeal, the plaintiffs argued that the exclusionary rulings prevented them from fully presenting their case and cross-examining M&O’s witnesses. “A central issue at trial was whether Buckyball magnets were children’s toys or adult products, and the Jordans argue that they were unable to fully present their case on this issue. M&O’s witnesses testified that the CPSC determined that Buckyball magnets were adult products. M&O designated Nancy Nord, a former CPSC commissioner, as an expert witness in the areas of the Consumer Product Safety Act, the CPSC, and the CPSC’s procedures. Nord testified that the CPSC did not believe that Buckyball magnets were children’s toys in 2010 because the CSPC did not regulate them under the more-stringent children’s toy standard. According to Nord, if the CPSC did consider Buckyball magnets children’s toys when it issued its 2010 recall, Buckyballs would have been subjected to heightened safety, tracking, and warning requirements. She testified that the less onerous labeling change required by the CPSC in 2010 reflected the CPSC’s position that Buckyball magnets were adult products rather than children’s toys. The Jordans argue that they should have been able to counter Nord’s testimony by introducing post-sale evidence of the CPSC’s 2012 regulatory and administrative actions against M&O. Their evidence showed that in 2012, the CPSC began regulating Buckyball magnets as children’s toys (and therefore subjecting the product to the heightened safety, tracking, and warning requirements.) The Jordans’ brief states that they withdrew the July 2012 correspondence between the CPSC and M&O’s attorney after the court granted M&O’s motion in limine and that this prevented them from fully presenting their case.

“Though the Jordans argue that the district court’s ruling deprived them of vital evidence, the MPLA requires claimants to prove defect based on what the manufacturer knew at the time the product was sold. The MPLA makes it clear that M&O’s conduct should only be evaluated through March 2011 for the purposes of the Jordans’ lawsuit. Evidence of the CPSC’s 2012 regulation of M&O may have cast M&O in a different light at trial, but this fact does not compel the admission of evidence that was properly excluded. Thus, the Jordans have not demonstrated that the district court’s exclusion of post-sale evidence was prejudicial error.”


Jordan v. Maxfield & Oberton Holdings, No.19-60364, 2020 WL 5939296 (5th Cir. Oct. 7, 2020).