Co. Doe v. Tenenbaum, Civil Action No. 8:11–cv–02958–AW

• Decision Date: 31 July 2012
• Docket Number: Civil Action No. 8:11–cv–02958–AW
• Citation: 127 F.Supp.3d 426
• Parties: Company Doe, Plaintiff, v. Inez Tenenbaum et al., Defendants.
• Court: U.S. District Court — District of Maryland

127 F.Supp.3d 426

Company Doe, Plaintiff,

v.Inez Tenenbaum et al., Defendants.

Civil Action No. 8:11–cv–02958–AW

United States District Court, D. Maryland, Southern Division.

Signed July 31, 2012

Filed October 9, 2012

Neil R. White, Office of the United States Attorney, Greenbelt, MD, Roger Joseph Gural, United States Department of Justice, Washington, DC, for Plaintiff.

REVISED MEMORANDUM OPINION

Alexander Williams, Jr., United States District Judge

Plaintiff Company Doe initiates this action against the following Defendants: (1) Inez Tenenbaum, in her official capacity as Chairwoman of the Consumer Product Safety Commission; and (2) the Consumer Product Safety Commission. Plaintiff asserts four related claims under the Administrative Procedure Act ("APA"). Concerning its APA claims, Plaintiff contends that the Commission's decision to publish a report implicating Plaintiff's product in the death of an infant who used it is arbitrary and capricious, an abuse of discretion, in excess of its statutory authority, and otherwise not in accordance with the law. See 5 U.S.C. § 706(2). Plaintiff also asserts a Fifth Amendment claim predicated on purported due process and takings violations. In addition to an exhaustive review of the record, the Court held a motions hearing on February 1, 2012. The Parties have fully briefed the outstanding motions and the Court deems any further hearings unnecessary. For the reasons articulated herein, the Court issues the ensuing rulings: (1) the Court GRANTS IN PART Plaintiff's Motion to Seal; (2) DENIES AS MOOT Plaintiff's Motion for Preliminary Injunction; (3) GRANTS , nunc pro tunc, Plaintiff's Motion for Oral Argument; (4) DENIES the Consumer Groups' Motion to Unseal Filings; (5) DENIES the Commission's Motion for Summary Judgment; and (6) GRANTS Plaintiff's Cross–Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff The ERGO Baby Carrier, Inc. ("Plaintiff") is a Hawaii corporation whose principal place of business is also Hawaii. Plaintiff manufactures a consumer product known as the ERGObaby Performance Carrier. Plaintiff describes the ERGObaby Performance Carrier as "an industry leading soft-sided infant carrier." Pl.'s Mem. Supp. Mot. Prelim. Inj. 2, Doc. No. 91. The Court herein refers to the ERGObaby Performance Carrier in general terms (e.g., "carrier" or "baby carrier").

Defendant Inez Tenenbaum is Chairwoman of the Consumer Product Safety Commission. Defendant Consumer Product Safety Commission is an independent federal regulatory agency responsible for enforcing the Consumer Product Safety Act, 15 U.S.C.A §§ 2051 et seq. (West 2009). As Plaintiff has sued Defendant Tenenbaum in her official capacity, the Court refers to Tenenbaum and the Consumer Product Safety Commission collectively as "the Commission."

In August 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 ("CPSIA"), Pub.L. No. 110–314, 122 Stat. 3016 (2008) (codified in scattered sections of 15 U.S.C.A.). According to its preamble, in passing the CPSIA, Congress sought to "establish consumer product safety standards and other safety requirements for children's products and to reauthorize and modernize the Consumer Product Safety Commission." CPSIA, 122 Stat. at 3016. Section 212 of the CPSIA establishes a consumer product safety database. 15 U.S.C.A. § 2055a (West 2009). Specifically, § 212 requires the Commission to "establish and maintain a database on the safety of consumer products, that is–(A) publicly available; (B) searchable; and (C) accessible through the Internet website of the Commission." Id. § 2055a(a)(1). In relevant part, the database must include "[r]eports of harm relating to the use of consumer products ... that are received from ... local ... government agencies." Id. § 2055a(b)(1) (emphasis added). The Commission launched the database on March 11, 2011. See SaferProducts.gov, CPSC.gov, http://www.saferproducts.gov (last visited June 17, 2012).

The Parties' dispute traces to the Commission's planned publication of a report about the death of a baby who used Plaintiff's carrier. On September 9, 2011, an unidentified local government agency submitted an incident report to the Commission. AR000009–11. The report reads as follows:

1 month old baby in Arnold Maryland was placed in an Ergo Baby Performance Carrier—Mom had taken baby out strawberry picking. Mom noted that baby not breathing. 911 called and CPR started.

Baby died. Case went to the Maryland Medical Examiners [sic] Office were [sic] it was determined baby did not die from any physical/medical causes. Case is being called underdetermined [sic]—sudden infant death from the infant carrier.

AR000009.

On October 3, 2011, Plaintiff argued in a letter that the report was "materially inaccurate" within the meaning of the CPSIA and demanded that the Commission refrain from publishing it. AR000030–33. Plaintiff so argued pursuant to CPSIA provisions empowering manufacturers to contest the publication of reports on the ground that they contain materially inaccurate information. See 15 U.S.C.A. § 2055(c) (West 2009). Plaintiff maintained that the report contained confusing and contradictory statements. For instance, the report states that the baby "did not die from any physical/medical causes" and that the cause of death was "underdetermined [sic]" even as it states that the cause of death was "sudden infant death from the infant carrier." See AR000009.

In the following days, Plaintiff submitted medical evidence to the Commission to buttress its contention that the report was materially inaccurate. Plaintiff insisted that the autopsy report to which the incident report referred did not indicate that the carrier caused the child's death. The autopsy report lists the "Pathologic Diagnos[i]s" as "Sudden Unexplained Death in Infancy." AR 000067. The autopsy report's "Opinion" section, which appears immediately below the pathologic diagnosis, states the following:

This 1–month–old, Other infant male ... died of SUDDEN UNEXPLAINED DEATH IN INFANCY. Investigation and complete autopsy ... showed no significant disease processes or injury. Investigation showed that the infant was found unresponsive after an extended period in hot weather in a front facing "ERGO" baby carrier with the coverlet over his head. Investigation did not indicate positional asphyxia

but rebreathing in a hot environmental condition could have contributed to death. An asphyxial component to death cannot be ruled out therefore the manner of death is COULD NOT BE DETERMINED.

Id.

Additionally, Dr. Michael Baden reviewed the autopsy and incident reports and presented his findings in a report to the Commission. AR000069–72. Plaintiffs characterize Dr. Baden as "former chief medical examiner of the City of New York and one of the country's foremost forensic pathologists." Pl.'s Mem. Supp. Mot. Prelim. Inj. 9, Doc. No. 9–1. In Dr. Baden's opinion, "[i]t is a misstatement and misinterpretation of the medical examiner's findings to write that the 'Case is being called underdetermined [sic]—sudden infant death from the infant carrier.' " AR000070. Dr. Baden also responded to the statement in the autopsy report that the "[i]nvestigation did not indicate positional asphyxia

but rebreathing in a hot environment could have contributed to death." Dr. Baden opined that this statement "is entirely speculative without any supporting environmental or autopsy evidence." AR000071.

On October 5, 2011, Dr. Jonathan Midgett reviewed the report of harm to determine whether it described a risk of harm related to the child's use of the carrier. AR000046. Dr. Midgett is an engineering psychologist for the Commission. Dr. Midgett concluded that the report described a risk of harm associated with the child's use of the baby carrier. See id. Regarding the risk of harm the report purports to describe, Dr. Midgett reasoned:

My opinion is that picking strawberries with a baby in a carrier could be dangerous because you need to bend over a lot and this could put pressure on the infant in a repeated and sometimes continuous manner, coupled with the fact that the strawberry field might have been hot and sunny and the mother's body could have been heating up, too. The factor of heat and compression could have been enough to harm the child. But I don't know how strenuously the mother was working. She might have just been standing around in the shade or the day might have been cool. The child could have just expired from some other unknown cause.

Id. Further attempting to associate the risk of harm to the baby's use of the carrier, Dr. Midgett continued:

I would say there is a risk of harm from using this product (and any infant carrier) when picking strawberries, but I don't think that necessarily means that the product in this case was the cause of the harm done to the victim in this case. It may have been the cause and it may not have been. In general, a risk of harm exists for this kind of use with this product. Therefore, it is eligible for inclusion in our data gathering.... The fact that the cause of the injury could be misuse is not a part of an evaluation of whether there is a risk of harm associated with the use of a product.

Id. In a declaration prepared after the commencement of the litigation, J. DeWane Ray, Assistant Executive Director of the Office of Hazard Identification and Reduction at the Commission, states that he agrees with Dr. Midgett's assessment. AR0000195.

On October 12, 2011, the Commission notified Plaintiff that the information in the incident report that Plaintiff identified as materially inaccurate met the definition of materially inaccurate information in 16 C.F.R. § 1101.26 (2011). AR000078. In a bid to rid the report of the material inaccuracy, the Commission thus redacted it:

1 month old baby in Arnold Maryland was placed in an Ergo Baby Performance Carrier—Mom had taken baby out strawberry picking. Mom noted that baby not breathing. 911 called and CPR started.

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