Brown v. Fisher-Price, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMEENA BROWN and EVAN )
BRAGGS, Individually and as Co- )
Administrators of the Estate of A.B., )
deceased, )
Plaintiffs, )
)
v. ) C.A. No. N20C-01-067 PAW
)
FISHER-PRICE, INC. and )
MATTEL, INC. )
)
Defendants. )

Submitted: November 8, 2024
Decided: December 20, 2024

MEMORANDUM OPINION AND ORDER

Upon Consideration of Defendants’ Motion for Summary Judgment;

DENIED.

Robert J. Leoni, Esquire, Shelsby & Leoni, PA, Attorney for Plaintiffs.

Jennifer C. Wasson, Esq., Carla M. Jones, Esq., and Ryan Kingshill, Esq., of Potter
Anderson & Corroon LLP, Attorneys for Defendants.

WINSTON, J.
I. INTRODUCTION

Plaintiffs Ameena Brown and Evan Braggs, (“Plaintiffs”) filed a products

liability action against Defendants Fisher-Price, Inc., and Mattel, Inc. (“Defendants”)

following the death of their infant son, A.B. This decision addresses Defendants’

summary judgment motion for lack of evidence demonstrating causation or in the

alternative, partial summary judgment as to: (i) increased risk causation; (ii)

rebreathing as a cause of death; (iii) strict liability; (iv) strict liability failure to warn;

(v) negligent failure to warn; (vi) negligence due to selection of materials; (vii) duty

to test; and (viii) conscious pain and suffering.

For the reasons set forth below, summary judgment and partial summary

judgment is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. THE ROCK N’ PLAY SLEEPER

The Rock n’ Play Sleeper (“RnP”), sold and marketed by Defendants, is an

inclined sleep product designed for day use or overnight sleep where infants are

placed in a supine position at an angle.1 The RnP was sold between 2009 and 2019.2

The RnP included a free-standing metal rocking frame, a rigid plastic backing, a

1
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. A at 2.
2
Ans. Br. at 1.
2
removable seat pad with a fabric cover, and a three-point belt restraint system.3 The

restraint system secured a strap between the infant’s legs and across the torso.4 The

RnP came unassembled in a box with an instruction manual when sold at retail. 5

The instruction manual and the RnP included the following warning:

“WARNING”

Failure to follow these warnings and the instructions could result in
serious injury or death.
• ALWAYS use the restraint system.
• ALWAYS use the pad provided, which includes the restraint. NEVER
add a mattress, pillow, comforter, or padding.
• SUFFOCATION HAZARD – Infants can suffocate:
- in gaps between an extra pad and the side of the product.
- on soft bedding.
• FALL HAZARD – To prevent falls, DO NOT use this product when
the infant begins to push up on hands and knees, can pull up or sit
unassisted or has reached 25 lbs (11 kg), whichever comes first.
• Strings can cause strangulation! NEVER place items with a string
around a child’s neck such as hood strings or pacifier cords. NEVER
suspend strings over produce or attach strings to toys.
• NEVER place product near a window where cords from blinds or
drapes can strangle a child.
• To reduce the risk of Sudden Infant Death Syndrome (SIDS),
pediatricians recommend healthy infants be placed on their backs to
sleep, unless otherwise advised by your physician.
• Always provide the supervision necessary for the continued safety of
your child.
• When used for playing, never leave child unattended.6

3
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. A at 2.
4
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. A at 2.
5
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. B at 2.
6
Op. Br. at 4; Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. A at 3 and C; Ans.
Br., Ex. HH.
3
At her deposition, Brown confirmed that the RnP she used included a warning

label that looked similar to the one Defendants displayed. 7 In April 2019,

Defendants issued a voluntary recall of the RnP and stated that “[i]nfant fatalities

have occurred in the [RnP].”8

B. A.B.’S DEATH

A.B. was born premature on February 12, 2017, at about twenty-five weeks.9

A.B. was hospitalized for five months and sent home with oxygen to assist his

breathing and a feeding tube to assist his swallowing.10 A.B. was discharged home

on July 6, 2017.11 Brown and A.B. lived in a one-bedroom apartment.12 Brown

slept in the bedroom, and A.B. slept in the living room.13 By October of 2017, A.B.

no longer required supplemental oxygen. 14 The infant still used a feeding tube

located in his left nostril full-time until his passing.15

7
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 71:17-72:3.
8
Ans. Br., Ex. A.
9
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 17:13-14, 51:13-17 and Ex.
F at 150:15-18; Ans. Br. Ex. Y at 2.
10
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 53:5-25., 56:1-57:1-9, and
59:1-16.
11
Ans. Br., Ex. Y at 3.
12
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 89:13-15.
13
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 89:7-18.
14
Ans. Br., Ex. Y at 4.
15
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 60:24-61:19, 106:21-24.
4
Brown received a second-hand RnP as a gift for A.B.16 Brown would place

A.B. in the RnP for naptime and overnight sleep. 17 At her deposition, Brown

testified that she saw the RnP warning label on the device and read it aloud to Braggs,

who also saw and read the label.18 Brown also admitted that she did not always use

the restraint system.19 Brown placed A.B. in the RnP daily.20

On January 15, 2018, Brown fed A.B.; dressed him in a diaper, three “onesies,”

and two pairs of socks; swaddled him; and placed him supine in the RnP.21 Brown

did not use the RnP restraint system on A.B. 22 The following morning at

approximately 6:00 a.m., Brown checked on A.B. 23 According to Brown’s

testimony, she noticed A.B. rolled over to his left side with his face pressed against

16
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 67:1-68:15 and Ex. G at
75:1-8; Ans. Br. Ex. Y at 5.
17
Ans. Br., Ex. Y at 5.
18
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 68:23-69:1-16; Ex. H at
80:1-16.
19
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 84:3-9.
20
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 74:10-25.
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. F at 103:1-13 and104:22-24;
21

Ans. Br. at Ex. Y at 6.
22
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 96:4-9.
23
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 105:1; Ans. Br., Ex. Y at 6.
5
the side of the RnP.24 Brown touched A.B. and his body felt stiff.25 Brown then

called her mother, Christine Singleton, a licensed nurse, who arrived at her

apartment within a few minutes.26 Singleton then inspected A.B. and called 911.27

A.B. was later pronounced deceased.28 The medical examiner determined the cause

of death to be Sudden Infant Death Syndrome (“SIDS”).29 According to the medical

examiner, Albert Chu, M.D., SIDS is “the death of an infant that remains

unexplained after a complete investigation.”30

C. THE INSTANT ACTION

Plaintiffs filed a wrongful death and survival action alleging negligence,

breach of implied warranty of merchantability, breach of implied warranty of fitness

24
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 106:2-12; Ans. Br., Ex. Y
at 6.
25
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 105:19-21; Ans. Br., Ex. Z
at 105:19-21.
26
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. G at 29:1-23; Ans. Br. Ex. Y at
7.
27
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. E at 109:3-12; Ans. Br., Ex. Y
at 7.
28
Ans. Br., Ex. Y at 7.
29
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. F at 50-51; Ans. Br., Ex. AA at
53:8-24.
30
Aff. of J. Wasson in Supp. of Defs.’ Op. Br., Ex. F at 53:8-24; Ans. Br., Ex. AA
at 53:8-24.
6
for a particular purpose, breach of express warranty, fraud, fraudulent concealment,

strict liability, and negligent infliction of emotional distress (the “Complaint”).31

On February 1, 2024, Defendants moved for summary judgment for lack of

causation evidence, and partial summary judgment as to certain specific claims and

particular theories of liability.32 Defendants contemporaneously filed seven Daubert

motions. 33 On March 1, 2024, Plaintiffs filed their Opposition to Defendants’

Motion for Summary Judgment and their Oppositions to Defendants’ Daubert

motions.34 On April 4, 2024, Defendants filed their Reply Brief in Support of their

Motion for Summary Judgment and Daubert motions.35

On June 25, 2024, this Court heard oral argument and granted summary

judgment as to breach of express and implied warranty claims (Counts II, III, and

IV), fraud and fraudulent concealment claims (Counts V and VI), and negligent

31
Compl.
32
Op. Br.
33
Mot. to Exclude Expert Rep. of Erin Mannen, Ph.d; Mot. to Exclude Expert Rep.
of Darlene Vasbinder-Calhoun, D.O.; Mot. to Exclude Expert Rep. of Wayne K.
Ross, M.D.; Mot. to Exclude Expert Rep. of Benjamin Hoffman, M.D.; Mot. to
Exclude Expert Rep. of Dennis Rosen, M.D.; Mot. to Exclude Expert Testimony
Regarding Rebreathing; and Mot. to Exclude Expert Testimony of Conscious Pain
and Suffering.
34
Ans. Br. in Opp. to Def.’s Mot. for Summ. J.
35
Reply Br. in Support of Def.s’ Mot. for Summ. J.
7
infliction of emotional distress (Count VIII).36 At argument, the Court requested

supplemental briefing on (1) the impact of Tincher v. Omega Flex37 on Defendants’

argument as to Plaintiffs’ strict liability claim, and (2) the applicability of the

doctrine of increased risk causation.38 Plaintiffs filed their Supplemental Brief in

Opposition to Defendants’ Motion for Summary Judgment on August 7, 2024. 39

Defendants filed their responsive supplemental brief on September 6, 2024.40

The remaining summary judgment claims are negligence and strict liability.

The remaining issues for the Court to consider under these claims are causation,

increased risk causation, rebreathing, strict liability, strict liability duty to warn,

negligent duty to warn, selection of materials used in the RnP, duty to test, and

conscious pain and suffering.

36
Plaintiffs are no longer pursuing Counts II, III, IV, V, and VI. See D.I. 193. See
also Tr., Oral Argument C.A. No. N20C-01-067 PAW, at 160:6-11. The transcript
states negligent infliction of emotional distress is Count VII, but it is Count VIII.
See Compl. ¶ 129.
37
104 A.3d 328 (Pa. 2014).
38
Order on Suppl. Submissions Relating to Defs.’ Mot. for Summ. J.
39
Pls.’ Suppl. Br.
40
Defs.’ Suppl. Br. Plaintiffs filed a letter to the Court on November 7, 2024,
regarding the pending motion to exclude the testimony of Erin Mannen. D.I. 287.
Defendants filed a letter in response on November 8, 2024. D.I. 290.
8
III. STANDARD OF REVIEW

Summary judgment is appropriate “when the record shows that there is no

genuine issue of material fact, and the moving party is entitled to judgment as a

matter of law.” 41 The moving party bears the burden of demonstrating the

undisputed facts entitle it to judgment as a matter of law.42 When the moving party

sustains the initial burden of showing the nonexistence of any material issues of fact,

the burden shifts to the non-moving party to substantiate its adverse claim by

showing that there are material issues of fact in dispute. 43 If the facts permit

reasonable persons to draw from them but one inference, the question is ripe for

summary judgment.44

IV. ANALYSIS

A. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON ALL
CLAIMS FOR LACK OF EVIDENCE DEMONSTRATING CAUSATION.

Defendants seek summary judgment on Plaintiffs’ claims of strict liability and

partial summary judgment on negligence for lack of causation for reasons set forth

41
Super. Ct. Civ. R. 56(c)).
42
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
43
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (citing Moore, 405 A.2d 679,
680).
44
Brzoska, 668 A.2d at 1364 (citing Wootten v. Kiger, 226 A.2d 238 (Del. Super.
1967)).
9
in their contemporaneously filed Daubert motions. 45 Plaintiffs rely on their

submissions in opposition to Defendants’ Daubert motions, contending their experts

offer opinions admissible under Daubert.46 As set forth in the Court’s Memorandum

Opinions and Orders addressing Defendants’ respective Daubert motions, Plaintiffs

submit admissible causation expert testimony. Therefore, summary judgment is

DENIED as to lack of causation evidence.

1. INCREASED RISK CAUSATION

Next, Defendants move for partial summary judgment on Plaintiffs’ experts’

increased risk causation theories.47 Defendants argue some of Plaintiffs’ experts rely

on an increased risk of harm as a means to establish causation which “has no

application at all to this products liability case.”48 At oral argument and in their

supplemental submission, Plaintiffs asserted their experts relied on both increased

risk and direct causation and that increased risk is a mechanism used in Pennsylvania

45
Reply Br. at 3.
46
Ans. Br. at 17.
47
Reply Br. at 4.
48
Op. Br. at 12-13; Tr., Oral Argument C.A. No. N20C-01-067 PAW, at 13:19-
14:10. Defendants argue increased risk causation has only been adopted by
Pennsylvania in the context of Restatement (Second) of Torts § 323 to negligence
claims in which services are rendered. Op. Br. at 12-13. Defendants cite to In re
Lipitor (Atorvastatin Calcium Mktg., Sales Practices & Prods. Liab. Litig., 227
F.Supp. 3d 452, 469 (D.S.C. 2017)) and Lempke v. Gen. Elec. Co., 2012 WL 94547,
at *4 (W.D. Pa. 2012) where both courts “declined to apply Section 323 to products
liability case as Pennsylvania courts have not done so.” Op. Br. at 13.
10
law that “furnishes a basis for the fact-finder to go further and conclude that [it] was

[] a substantial factor.”49 Plaintiffs acknowledged that increased risk standing alone

does not equal causation under Pennsylvania law as the jury must later decide

whether the increased risk was a substantial factor in achieving causation. 50 After

extensive argument, Defendants noted that they “understood [Plaintiffs’] counsel to

be acknowledging that they were not trying to substitute increased risk for proof of

causation.”51

The function of the judge in passing on a motion for summary judgment is not

to weigh evidence and to accept that which seems to have the greater weight. 52

Rather, [her] function is to determine whether there is any evidence supporting a

favorable conclusion to the nonmoving party.53 Here, Defendants’ argument rested

on anticipating that Plaintiffs will use increased risk to prove causation; however,

49
Tr., Oral Argument C.A. No. N20C-01-067 PAW, at 102:4-10 and 102:16-22; see
Pls.’ Suppl. Br. at 10.
50
Pls’ Suppl. Br. at 12; Tr., Oral Argument, C.A. No. N20C-01-067 PAW at 102:23-
104:4. Plaintiffs further clarify that “[t]his increased risk argument is really an
argument to the point of what will the jury instructions look like and what will the
arguments look like to the jury, but it is absolutely a proper basis by which causation
can be proved.” Id. at 107:13-19.
51
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 147:7-15.
52
Cont'l Oil Co. v. Pauley Petroleum, Inc., 251 A.2d 824, 826 (Del. 1969) (citing
Watson v. Shellhorn & Hill, Inc., 221 A.2d 506 (Del. 1966)).
53
Id.
11
Defendants later recognized that Plaintiffs were not attempting to substitute

increased risk for their burden to show factual causation.

At the summary judgment stage, this Court will not weigh the implication of

increased risk as used in Plaintiffs’ expert reports, and Defendants’ initial argument

is no longer in dispute. Accordingly, Defendants’ argument is now MOOT, and

they are not entitled to summary judgment on the issue of increased risk causation.

2. REBREATHING CLAIMS

Defendants move for summary judgment on Plaintiffs’ claims that rebreathing

carbon dioxide caused A.B.’s death.54 Defendants’ argument relies on those set forth

in its contemporaneously filed Daubert motion seeking to exclude Plaintiffs’

rebreathing testimony. 55 For the reasons set forth in the Court’s Memorandum

Opinion and Order addressing rebreathing, Defendants’ Motion for Summary

Judgment as to rebreathing is DENIED.

54
Reply Br. at 21.
55
Reply Br. at 21; see Defs.’ Mot. To Exclude Pls.’ Expert Test. Regarding
Rebreathing.
12
B. DEFENDANTS ARE NOT ENTITLED TO PARTIAL SUMMARY JUDGMENT
FOR STRICT LIABILITY.

1. INTENDED USE

Defendants assert Plaintiffs’ strict liability claim must fail because Defendants

can only be held liable for injuries resulting from the RnP’s intended use. 56

Defendants posit Brown’s failure to utilize the RnP’s restraint system constituted an

unintended use of the RnP, thus barring recovery.57 Plaintiffs counter their failure

to utilize the restraints qualifies as misuse, but still falls within the scope of the RnP’s

intended use.58

“[A] product is not defective so long as it is safe for its intended user.”59 “[A]

plaintiff’s misuse of a product cannot be grounds for granting summary judgment in

favor of the manufacturer under a design defect theory unless it is established that

56
Op. Br. at 13.
57
Op. Br. at 14-15.
58
Ans. Br. at 20-21. Plaintiffs also contend that Tincher v. Omega Flex, Inc. (Pa.
2014) reformulated Pennsylvania’s law regarding strict liability “within the
framework of design defect” and thus “put to bed the notion that a product’s intended
use” could have dispositive weight in a summary judgment context. Pls.’ Suppl. Br.
at 7. In Tincher, the Court considered the product’s intended use as only one of
several factors in their analysis of design defect and further held “…the test we
articulate today is not intended as a rigid formula to be offered to the jury in all
situations. The alternate theories of proof contour the notion of ‘defective condition’
in principled terms intended as comprehensive guidelines that are sufficiently
malleable to account for product diversity and a variety of legal claims, products,
and applications of theory.” See Tincher, 628 Pa. at 429. Accordingly, the Court
considers intended use as a factor in its analysis.
59
Phillips v. Cricket Lighters, 841 A.2d 1000, 1005 (Pa. 2003).
13
the misuse solely caused the accident while the design defect did not contribute to

it.”60 During this inquiry, the Court must determine the intended use of the RnP, and

whether Plaintiffs’ use of the RnP falls within that scope.61 Foreseeability of use

that falls outside the scope of the product’s intended use does not factor into the

Court’s analysis.62

Here, the intended use of the RnP encompasses “day use or overnight sleep in

which infants are placed supine (on their backs) at less than a 30-degree angle from

horizontal.”63 Defendants argue the intended use also includes use of the restraint

system.64 However, Defendants are conflating the doctrine of unintended use with

the concept of misuse. 65 The RnP’s intended use, in part, includes use as an

overnight sleeper. Plaintiffs utilized the RnP as an overnight sleeper. Plaintiffs’

failure to utilize the restraint system falls within misuse, a potential defense for

Defendants, but does not fall outside the scope of the RnP’s intended use.

60
Smith v. Yamaha Motor Corp., U.S.A., 5 A.3d 314, 321 (2010) (citing Clark v. Bil-
Jax, Inc., 763 A.2d 920 (Pa. Super. 2000)).
61
See id.
62
Cricket Lighters, 841 A.2d at 1007; see also Clevenger v. CNH Am., LLC, 2008
WL 2383076, at *4 (M.D. Pa. 2008), aff'd, 340 F. App'x 821 (3d Cir. 2009).
63
Op. Br. at 3.
64
Op. Br. at 4-5.
65
Yamaha Motor Corp., 5 A.3d at 321.
14
Unless it is established that Brown’s failure to utilize the restraint system

solely caused the accident and the design defect did not contribute to it, Brown’s

failure to utilize the restraint system cannot be grounds for summary judgment.

Plaintiff’s expert reports establish that the cause of A.B.’s death was related to the

RnP’s design. Thus, Plaintiffs presented the necessary evidence to overcome

summary judgment on this issue. Accordingly, summary judgment as to intended

use is DENIED.

2. STRICT LIABILITY DUTY TO WARN66

Defendants contend they are entitled to summary judgment as to Plaintiffs’

strict liability duty to warn claims because a clear warning was provided that, if

followed, would have prevented A.B. from allegedly moving and becoming

asphyxiated.67 Plaintiffs argue summary judgment should be denied because the

RnP warnings were inadequate and not “framed for a parent in the context of

positional asphyxiation [].”68

66
The parties conflate negligent duty (failure) to warn with strict liability duty
(failure) to warn. However, “Pennsylvania courts consistently analyze the
negligence/failure to warn and strict liability/failure to warn causes of action
separately, treating conduct-related counts apart from product-related counts.
Harford Mut. Ins. Co. v. Moorhead, 578 A.2d 492, 501 (Pa. Super. 1990).
67
Reply Br. at 17.
68
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 82:6-8. At oral argument,
Plaintiffs contend warnings must be adequate in content, intensity, and
dissemination and that a general warning is not adequate where the specific danger
requires a more complete and explicit warning. Id. at 79:16-22. There are two issues
15
Under a strict liability duty to warn claim, a plaintiff must establish “the

product was sold in a defective condition ‘unreasonably dangerous’ to the user, and

that the defect caused plaintiff's injury.”69

To determine whether a product is defective, the plaintiff must show that a

warning of a particular danger was either inadequate or altogether lacking, and that

this deficiency in warning made the product unreasonably dangerous.70 Under this

inquiry, the Court must determine “whether the seller accompanied his product with

sufficient instructions and warnings so as to make his product safe.”71 Lastly, the

“determination of whether a warning is adequate and whether a product is ‘defective’

here that give the Court pause with this analysis. First, at oral argument, Plaintiffs
cite to Maya v. Johnson and Johnson, 97 A.3d 1203 (Pa. Super. 2014) as the source
of authority. However, it appears the caselaw excludes such analysis. Moreover,
the language Plaintiffs adopt discussing the adequacy prong appears to be more
aligned with either negligent failure to warn or the Restatement (Third) of Torts, cmt.
i, which Pennsylvania courts have declined to adopt. See Tincher v. Omega Flex,
Inc., 104 A.3d 328, 399 (Pa. 2014) (“[] the Third Restatement does not offer an
articulation of the law sufficient to persuade us to simply abandon the second
restatement formulation of the strict products liability cause of action and ‘move’ to
the Third Restatement.”).
69
Phillips v. A-Best Prod. Co., 542 Pa. 124, 131, 665 A.2d 1167, 1171 (1995).
70
Id.
71
Lynn ex rel. Lynn v. Yamaha Golf-Car Co., 894 F. Supp. 2d 606, 641 (W.D. Pa.
2012) (quoting Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d, 893,
902) (abrogated by Reott v. Asia Trend Inc., 618 Pa. 228, 55 A.3d 1088 (2012) on
the issue of highly reckless conduct as an affirmative defense to strict products
liability claims). See Reott, supra.
16
due to inadequate warnings are questions of law.”72 However, “where fact questions

exist [] the question of adequacy is one for the jury.”73

Defendants mainly rely on Davis v. Berwyn Corp.74 and Roudabush v. Rondo,

Inc.,75 in which the Pennsylvania courts explained that it is unreasonable to require

a manufacturer to warn against dangers that may arise if the stated warnings are not

heeded since the law presumes that warnings will be obeyed. 76 Like in Davis,

Defendants contend the warnings on the RnP “make plain that the product should

never be used without the safety device” 77 “and that the warning addressed the

danger and was sufficient to caution the operator.”78

Despite these warnings, the RnP failed to describe additional dangers inherent

in the product—particularly, the possibility of babies rolling in the device and

positional asphyxiation. Reviewing Dr. Ian Noy’s expert report, he opines to a

reasonable degree of scientific probability that “[t]he deficiencies in the warning

72
Cohen v. Johnson & Johnson, 634 F. Supp. 3d 216, 230 (W.D. Pa. 2022) (quoting
Davis v. Berwyn Corp., 547 Pa. 260 at 267, 690 A.2d 186 (1997)).
73
Id. (citing Rowland v. Novartis Pharms. Corp., 34 F. Supp. 3d 556, 572 (W.D. Pa.
2014)).
74
690 A.2d 186 (Pa. 1997).
75
2017 WL 3912370 (W.D. Pa. 2017).
76
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 37:14-38:2 and 41:5-8.
77
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 38:21-39:2.
78
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 39:7-12.
17
system rendered the [RnP] defective and unreasonably dangerous”79 as they did not

appropriately warn of the risk of positional asphyxiation and “the use of restraints

may have had little or no benefit in preventing positional asphyxiation in children

who had not ended up out of position.”80

Comparing these circumstances to Roudabush, summary judgment was

granted in the manufacturer’s favor because that the court found the plaintiff made

unsupported, conclusory allegations regarding the adequacy of the manufacturer’s

warnings.81 Here, Noy’s report supports Plaintiffs’ challenges to the RnP’s warnings

beyond conclusory allegations deeming them inadequate and unreasonably

dangerous. Since questions of fact exist, the question of adequacy becomes one for

the jury.82 Accordingly, partial summary judgment is DENIED for strict liability

duty to warn.

79
Ans. Br., Ex. G at 49 (“Dr. Noy’s Expert Report”).
80
See Dr. Noy’s Expert Report at 35, 48; Tr., Oral Argument, C.A. No. N20C-01-
067 PAW, at 79:1-5.
81
Roudabush, 2017 WL 3912370 at *7.
82
Cohen v. Johnson & Johnson, 634 F. Supp. 3d at 230 (citing Rowland v. Novartis
Pharms. Corp., 34 F. Supp. 3d 556, 572 (W.D. Pa. 2014)).
18
C. DEFENDANTS ARE NOT ENTITLED TO PARTIAL SUMMARY JUDGMENT
FOR SPECIFIC CLAIMS OF NEGLIGENCE.

1. NEGLIGENT DUTY TO WARN

As previously mentioned, the parties conflate negligent duty to warn and strict

liability duty to warn. However, negligence and strict liability are distinct legal

theories.83 The distinction that lies in negligent duty to warn is that a plaintiff must

prove the defendant breached its duty to warn, and that the breach caused plaintiff’s

injuries.84 In order to establish a negligent failure to warn claim, a plaintiff must

show the absence or inadequacy of the warnings was the factual or proximate cause

of the injury.85 Lastly, “a plaintiff must further establish proximate causation by

showing that had the defendant issued a proper warning [ ], [she] would have altered

[her] behavior and the injury would have been avoided.”86

As mentioned above, the jury must determine whether Defendants’ warnings

on the RnP were adequate.87 As to causation, only when the absence of an issue of

any material fact relating to the question of negligence or proximate cause is shown

may summary judgment be granted on motion of a defendant.88 Here, triable issues

83
Cricket Lighters, 841 A.2d at 1008 (Pa. 2003).
84
Maya v. Johnson & Johnson, 97 A.3d 1203, 1213-14 (Pa. Super. 2014).
85
Wright v. Ryobi Techs., Inc, 175 F. Supp. 3d 439, 455 (E.D. Pa. 2016).
86
Maya, 97 A.3d at 1213-14.
87
See Dr. Noy’s Expert Report.
88
Ebersole v. Lowengrub, 180 A.2d 467, 469 (Del. 1962).
19
of fact remain as to whether Brown would have altered her behavior the night before

A.B.’s death. Accordingly, partial summary judgment as to negligent duty to warn

is DENIED.

2. SELECTION OF MATERIALS
Defendants seek summary judgment on Plaintiffs’ expert references that the

materials selected for use in the RnP made the product defective, dangerous, or

caused A.B.’s death.89 Specifically, Defendants argue that Plaintiffs have no expert

who opines that the improper selection of any specific material used in the RnP such

as padding, plastic, or anything else caused A.B.’s death. 90 Plaintiffs counter

Defendants’ argument, contending genuine issues of material fact exist as to: (1)

whether the RnP was unreasonably dangerous and defective because of the material

used and (2) whether Defendants were negligent in selecting that material.91 At oral

argument, Plaintiffs clarified that its reference to Defendants’ selection of materials

is subsumed under its negligence claim as part of its “global duty to act reasonably

across the entire continuum of the [D]efendants[’] activities.”92

At this juncture, triable issues of fact still exist as to whether Defendants’

activities breached its duty to Plaintiffs and caused A.B.’s death. Although the

89
Reply Br. at 21-22.
90
Op. Br. at 34; Reply Br. at 22.
91
Ans. Br. at 41.
92
Tr., Oral Argument, C.A. No. N20C-01-067 PAW, at 94:6-10.
20
experts did not explicitly attribute the RnP’s materials to A.B.’s death, an inference

can be made as to causation. Plaintiffs point to expert reports from Mannen, Ross,

Calhoun, Hoffman, Noy, and Rosen where references to the RnP’s materials were

made in connection with suffocation and positional asphyxiation.93

Like the other reports,94 Noy’s expert report discussed the “consequential risk

of asphyxiation inherent in the RnP” and the fact that “A.B. was found on side with

face against padding of RnP.”95 With the expert report of Noy and the other reports,

Plaintiffs demonstrated a reasonable inference can be made that the materials

selected for use in the RnP could have made the product defective, dangerous, or

caused A.B.’s death.

Since all inferences are made in favor of the nonmoving party and an issue of

material fact remains, partial summary judgment as to any reference regarding the

selection of the RnP’s materials is DENIED.

93
Ans. Br. at 39-41.
94
Dr. Calhoun’s Expert Report at 18; Dr. Hoffman’s Expert Report at 19; Dr.
Mannen’s Expert Report at 32; Dr. Rosen’s Expert Report at 26; Dr. Ross’ Expert
Report at 6.
95
Ans. Br. at 40; Dr. Noy’s Expert Report at 48.
21
D. THE DUTY TO TEST IS SUBSUMED BY PLAINTIFFS’ OTHER CLAIMS,
RENDERING THE EVIDENCE ADMISSIBLE.

Under Pennsylvania law, a breach of a duty to test does not create an

independent claim.96 The manufacturer’s duty to test “is a subpart of the other three

duties because a breach of the duty to test cannot by itself cause any injury.”97 To

present evidence of a failure of the duty to test, Plaintiffs must show evidence

supporting a claim for defective design, manufacture, or warning.98

Defendants argue evidence of failure to conform with the duty to test should

be inadmissible “to the extent Plaintiffs’ claims assert a duty to test.” 99 Plaintiffs

posit their allegations surrounding Defendants’ failure to test the product fall within

their claims for negligence and strict liability.100 In their Reply Brief in Support of

the Motion, Defendants additionally argue that evidence of failure to test cannot be

admitted in general, even as part of negligence or strict liability claims. 101

Specifically, Defendants claim that Plaintiffs’ “argument avoids the issue, which is

96
Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 541 (Pa. Super. 2003), aff'd,
584 Pa. 120, 881 A.2d 1262 (2005).
97
Lance v. Wyeth, 4 A.3d 160, 169 (Pa. Aug. 2, 2010), aff'd in part, rev'd in part on
other grounds, 624 Pa. 231, 85 A.3d 434 (2014) (quoting Kociemba v. G.D. Searle
& Co., 707 F.Supp. 1517, 1527 (D. Min. 1989)).
98
Id.
99
Op. Br. at 32.
100
Ans. Br. at 34.
101
Reply Br. at 20-21.
22
that negligent failure to test and strict liability failure to test are not viable claims

under Pennsylvania law.”102

While the Court cannot permit a claim based solely on the failure to test as an

independent cause of action, the Court may consider evidence of failure to test

subsumed within claims for design defect, manufacturing defect, and/or any

potential failure to warn.103 Here, Plaintiffs brought a claim for defective design,

manufacture, or warning, which includes their contentions regarding Defendants’

alleged failure to test, 104 and a claim for negligence, which also asserts that

Defendants failed to adequately test the product. 105 Plaintiffs do not assert an

independent claim for the alleged failure to test. 106 Instead, Plaintiffs argue

Defendants’ breach of its duty to test: (1) led the manufacturer to produce a product

that is defective in design, manufacture, or warning; and (2) acts as evidence of

Defendants’ negligence.

102
Reply Br. at 21.
103
See Lance v. Wyeth, 4 A.3d at 169 (holding that no injury results from a breach
of a manufacturer’s duty to test within the context of products liability “unless the
manufacturer’s breach of its duty to test leads the manufacturer to produce a product
that is defective in design, manufacture, or warning…”) (emphasis added).
104
Ans. Br. at 34-38.
105
Ans. Br. at 15-19.
106
Ans. Br. at 33-34.
23
Plaintiffs can introduce evidence of an alleged failure to adequately test under

their claims for negligence and design defect. Although failure to test is not an

independent cause of action, evidence of lack of adequate testing is admissible under

claims for strict liability (to show that the risk of injury was known or knowable had

adequate testing been performed)107 and negligence (to show that the Defendants did

not act reasonably).108

As explained above, the Court denies partial summary judgment on the

Plaintiffs’ claims for negligent failure to warn and strict liability failure to warn.

Thus, Defendants’ alleged failure to perform adequate safety testing is relevant and

admissible under the Plaintiffs’ claims of negligence and strict liability. Therefore,

partial summary judgment as to the duty to test is DENIED.

107
See Lance v. Wyeth, 4 A.3d at 169.
108
“Under Pennsylvania law, in order for an injured party to establish a cause of
action against a manufacturer based upon the latter’s breach of a duty, ‘the plaintiff
must prove, not only that the product was defective and that the defect caused
his[/her] injury, but in addition, [the plaintiff must prove] that in manufacturing or
supplying the product the defendant failed to exercise due care.’” Oddi v. Ford
Motor Co., 234 F.3d 136, 144 (3rd Cir. 2000) (citing Dambacher v. Mallis, 485 A.2d
408, 424 (Pa. Super. 1984)). Thus, to establish negligence arising from a duty to
test, a plaintiff must also demonstrate a defect in the product design, that the defect
in question caused the injury, and that defendant failed to exercise reasonable care.
Id. Here, the proffered testimony from the Plaintiffs’ experts sufficiently establishes
the existence of a defect in design and causation. Thus, evidence of failure to test
will be admissible as part of Plaintiff’s claim for negligence as evidence of
Defendants’ alleged failure to exercise due care in manufacturing or supplying the
product. See id.
24
E. DEFENDANTS ARE NOT ENTITLED TO PARTIAL SUMMARY JUDGMENT
FOR CONSCIOUS PAIN AND SUFFERING.

Defendants contend Plaintiffs cannot proceed on their claim for conscious

pain and suffering because the expert testimony Plaintiffs rely upon should be

excluded.109 Defendants have contemporaneously filed a Daubert motion seeking

to exclude Ross’s and Calhoun’s testimony as to conscious pain and suffering.110

For reasons set forth in the Court’s Memorandum Opinion and Order addressing

conscious pain and suffering, Defendants’ Motion for partial summary judgment on

the Plaintiffs’ claims of conscious pain and suffering is DENIED.

V. CONCLUSION

For reasons mentioned, Defendants’ motion for summary judgment and

partial summary judgment is DENIED.

IT IS SO ORDERED.

/s/ Patricia A. Winston
Patricia A. Winston, Judge

109
Op. Br. at 35.
Defs.’ Mot. to Exclude Testimony Regarding Conscious Pain and Suffering, D.I.
110

166.
25