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From Products Liability Law Daily, April 25, 2019

Class-action complaint filed against Fisher-Price and Mattel following sleeper recall

By Leah S. Poniatowski, J.D.

Manufacturers face negligence, gross negligence, and other claims in the wake of infant deaths and injuries related to use of Rock ‘n Play Sleeper.

A mother filed a class-action lawsuit against Fisher-Price, Inc. and its parent company, Mattel, Inc., arising from her use of the Rock ‘n Play Sleeper, an inclined infant sleeper. According to the complaint, the manufacturers are liable for negligence and gross negligence with respect to the defective and dangerous product. The mother also asserts other claims, including breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, and unjust enrichment (Mulvey v. Fisher-Price, Inc., filed April 19, 2019).

Fisher-Price began selling the Rock ‘n Play Sleeper in 2009. The sleeper features a collapsible frame and rigid plastic shell in a hammock, a soft pad covering, and restraints. The sleeper elevates the head 30-degrees from the baby’s torso. The "Premium" and "Deluxe" models provide additional padding around the head. The sleeper was marketed and sold in the United States, featuring pictures of a mother in bed next to a baby in the product and the words "sleep" or "sleeper" several times on the package. The Fisher-Price website (https://fisher-price.mattel.com) also included language suggesting that the product could be used for napping and overnight sleep. The only warning was on a label attached to the soft padding inside the box, and according to the complaint, the warning itself was misleading with regard to the safety of the padding provided.

Standards, complaints, and recall. Before the sleeper entered the market, the American Association of Pediatrics (AAP) had issued a policy statement in 2005 that infants should be placed on their backs on a firm sleep surface free from soft materials and objects in order to reduce the risk of Sudden Infant Death Syndrome (SIDS), and that infants should not spend excessive time in car seats or other rigid devices in order to prevent plagiocephaly (flat head). The National Institutes of Health concurred with the AAP’s policy the following year. The AAP updated its policy in 2011 to emphasize that the supine position did not increase the risk of choking or aspiration in infants, and updated its policy again in 2016, adding provisions that manufacturers should reflect the safe sleep guidelines in marketing materials.

From 2009 through 2019, there had been 32 infant deaths and over 700 injuries reported from use of inclined sleepers like the Rock ’n Play Sleeper, according to a November 2018 Wall Street Journal report, the complaint states. The complaint also asserts that throughout the decade, Fisher-Price has received complaints from consumers, consumer groups, and pediatricians. Further, the product as advertised in the United States was not allowed in Australia or Canada, and the company decided not to sell the product at all in Australia. In addition to the Wall Street Journal article, the Consumer Product Safety Commission (CPSC) had received complaints from consumers and received a letter from an Illinois Congresswoman about CPSC’s role in protecting consumers from the sleeper. Subsequently, CPSC issued a suffocation warning hazard on April 5 [see Products Liability Law Daily’s April 5, 2019 analysis]. For its part, Fisher-Price finally issued a recall of all 4.7 million units on April 15, 2019 [see Products Liability Daily’s April 15, 2019 analysis].

Negligence. The mother received a Rock ’n Play Sleeper as a gift to use as a "sleeper" for overnight or prolonged sleep for her infant. Her complaint asserts that she was induced to use the Rock ’n Play Sleeper by Fisher-Price and Mattel marketing declaring that the sleeper was a suitable environment for infants to sleep in for prolonged periods or overnight. Her complaint also alleges that Fisher-Price and Mattel are negligent because they failed to exercise reasonable care in the design, manufacture, and marketing of the sleeper for infant use, and they failed to respond to the product’s defects in a timely manner. The mother alleges, too, that the manufacturers owe her and the class a duty to disclose the defects and dangers of using the product, and that these duties were breached. The damages allegedly suffered by the mother and other class members were the foreseeable result of the manufacturer’s wrongdoing, according to the complaint.

Gross negligence. Similarly, the mother contends that the manufacturer owed her and the class the duties of care as stated above, and that the manufacturers "grossly failed to exercise due care and acted in reckless disregard of their duties," injuring all members of the class.

Remaining claims. The mother further asserts that the manufacturers violated New York law by deceptively marketing the sleepers as a safe and reliable "sleeping environment for prolonged periods or overnight," which they were not. She alleges that even when "used in its expected manner [the sleeper was] likely to be a source of potential death and injury to babies." Thus, the manufacturers breached the implied warranty of merchantability and violated the Magnuson-Moss Warranty Act, the complaint alleges. Moreover, the mother asserts that the manufacturers were unjustly enriched as a result of their conduct and should not be allowed to retain the benefits they received from the class.

Relief sought. The mother seeks certification of a nationwide and a New York class, award of damages to the class, punitive damages, restitution and disgorgement of revenues to class members, and declaratory relief. Further, the mother seeks modification of the recall to sufficiently compensate all class members, an order for the manufacturers to undertake a corrective advertising campaign, attorney fees and costs, and any additional relief deemed just and proper by the court.

The case is No. 1:19-cv-00518-GWC.

Attorneys: Terrence M. Connors (Connors LLP) for Cassandra Mulvey.

Companies: Fisher-Price, Inc.; Mattel, Inc.

MainStory: TopStory ComplaintNewsStory DesignManufacturingNews WarningsNews BabyProductsNews NewYorkNews

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