Courkamp v. Fisher-Price Inc.
Decision Date | 23 September 2022 |
Docket Number | CV-19-02689-PHX-GMS |
Parties | Kathleen Courkamp, Plaintiff, v. Fisher-Price Incorporated, et al., Defendants. |
Court | U.S. District Court — District of Arizona |
Pending before the Court are Mattel, Inc. and Fisher-Price Inc.'s (“Defendants”) Motion to Strike the June 7, 2021 Supplemental Expert Report and July 16, 2021, Rebuttal Expert Report of Alison Vredenburgh, PhD, CPE (Doc. 154); Motion to Exclude Plaintiff's Expert, Michael Goodstein, M.D. (Doc 191); Motion to Exclude the Opinions of William Singhose, Ph.D. (Doc. 192); Motion to Exclude Plaintiff's Expert, Alison Vredenburgh, Ph.D. (Doc. 193); Motion to Exclude the Opinions of Erik Christensen, M.D. (Doc. 194); and Motion for Summary Judgment (Doc. 195). Also pending before the Court is Kathleen Courkamp's (“Plaintiff') Motion to Supplement Record in Support of Opposition to Motion for Summary Judgment (Doc. 235). For the reasons below, Plaintiff's Motion to Supplement is denied. All other Motions are granted in part and denied in part.
Defendant Fisher-Price, a wholly owned subsidiary of Defendant Mattel, Inc., developed and sold the Rock ‘n Play Sleeper (“RNPS”) from 2009-2019. The RNPS is an inclined sleeper “designed for day use or overnight sleep for infants that places them at approximately a 30-degree angle from the horizontal.” (Doc. 196 at 2.) The RNPS warning label states that belt restraints should always be used, and the product should not be used when the infant is old enough “to push up on hands and knees” or sit unassisted. (Doc. 196 at 2.) At the time it was first released, the RNPS complied with ASTM International's (“ASTM”) safety standard, a voluntary standard set by the industry. (Doc. 196 at 6); (Doc. 244 at 29.)
When the RNPS was launched, the American Academy of Pediatrics (“AAP”), recommended that infants sleep on their backs. (Doc. 244 at 2-3.) Later AAP guidance, amended in 2011, included a further recommendation that infants sleep face-up on a flat surface. (Doc. 196 at 6.) After the RNPS was launched, regulators began to express concerns regarding the safety of inclined sleepers. In 2010, the Consumer Product Safety Commission (“CPSC”) sought to implement a regulation that would have limited infant sleeping products to angles of twenty degrees. Defendants opposed the regulation and submitted a letter to CPSC requesting that the standard be revised to accommodate inclined sleepers, which were subsequently excluded from the regulation. Similarly, the Queensland Government's Office of Fair Trading, Health Canada, and the UK Royal College of Midwives expressed safety concerns over the RNPS because it did not comply with prevailing guidelines for safe sleep. Despite these concerns, the RNPS had “proven successful,” and Defendants continued to market the RNPS in the United States as an overnight sleeper. (Doc. 244-1 at 143.) Two years later, Dr. Roy Benaroch, a board-certified pediatrician, wrote to Defendant Fisher-Price to raise his concerns regarding the RNPS's failure to comply with AAP guidelines. By February 2014, Defendants had received at least forty-seven “out of position” reports from consumers, including reports that infants had “[sunk] down,” rolled “to the side,” and “rolled over” in the RNPS. (Doc. 244-5 at 68.)
In June 2014, Plaintiff and her eight-month-old daughter (“Z.O.”) were staying with Z.O.'s father's, Andrew Olson (“Mr. Olson”), at his apartment. Mr. Olson placed Z.O. into an RNPS for the night. The parties dispute whether Mr. Olson used the RNPS's built-in restraint system. When Plaintiff and Mr. Olson awoke the next morning, they found Z.O. unresponsive in the RNPS. The parties dispute whether Z.O. was found supine (face-up), prone (face-down), or semi-prone (on her side). Regardless, Plaintiff and Mr. Olson called 911. The operator told Mr. Olson to begin administering CPR until paramedics arrived. Mr. Olson moved Z.O. from the RNPS to a flat surface and began performing CPR. The Tempe Fire Department soon responded, and Z.O. was pronounced dead. The autopsy determined that Z.O.'s cause of death was “unknown.” (Doc. 196-33 at 3.)
After Z.O. passed away, concerns continued to mount over the safety of the RNPS. Defendant Fisher-Price itself began receiving complaints from consumers that the RNPS was not safe for overnight sleep. Due to these concerns, the CPSC sponsored a study by Dr. Erin Mannen, biomechanics researcher and Assistant Professor of Orthopaedic Surgery at the University of Arkansas for Medical Sciences, who found that inclined sleepers posed a suffocation hazard. In April 2019, after an article in Consumer Reports publicized the CPSC's concerns with the RNPS, Defendant Fisher-Price voluntarily recalled the product. During its ten-year run, Defendants earned over $200 million from sales of the RNPS.
Plaintiff filed this lawsuit for wrongful death in April 2019, seeking damages against Defendants on behalf of herself and other statutory beneficiaries. She alleges that defects in the design of the RNPS and Defendants' failure to warn caused Z.O.'s death. Plaintiff also alleges a claim for breach of express warranty. Defendants now move for summary judgment, which the Court considers below.
Plaintiff has filed a Motion to Supplement (Doc. 235) the summary judgment record, which the Court will consider first. The Court will then decide Defendants' four Motions to Exclude before reaching the merits of their Motion for Summary Judgment.
Plaintiff asks to supplement the summary judgment record with documents in support of the Committee on Oversight and Reform's report on infant deaths in inclined sleepers. (Doc. 235 at 2.) She also asks that the Court “permit further supplementation if and when Defendants disclose the listed information Plaintiff still seeks.” (Doc. 235 at 6.) Whether to grant a motion to supplement is within a district court's discretion. Resilient Floor Covering Pension Tr. Fund Bd. of Trs. v. Michael's Floor Covering, Inc., 801 F.3d 1079, 1088 (9th Cir. 2015). “In deciding whether to grant a motion to supplement the record, district courts consider whether the evidence the party is seeking to admit is relevant and also consider whether the motion is made in good faith and whether allowing supplementation would unfairly prejudice the non-moving party.” Uddv. City of Phx., No. CV-18-01616-PHX-DWL, 2020 WL 1904638, at *2 (D. Ariz. Apr. 17, 2020). The motion to supplement may also be denied if the moving party did not act diligently in discovering the new information. See Stucky v. Dep't of Educ., 337 Fed.Appx. 611, 613 (9th Cir. 2009); Nakanelua v. United Pub. Workers, AFSCME, Local 646, AFL-CIO, No. 20-00442 JAO-KJM, 2022 WL 174098, at *2 (D. Haw. Jan. 19, 2022) (collecting cases).
Plaintiff does not contest that she has had some of the documents at issue since 2019. (Doc. 235 at 2); (Doc. 235-1 at 4-5.) And discovery for the documents that Plaintiff complains she doesn't have closed on October 1, 2021; yet she did not raise this issue until January 19, 2022. (Doc. 166 at 3); (Doc. 179); (Doc. 235-1 at 6.) Importantly, Defendants filed their Motion for Summary Judgment on November 19, 2021, and Plaintiff filed her Response on January 7, 2022. (Docs. 195, 205.) Nothing in the record suggests that Plaintiff attempted to meet and confer with Defendants regarding the missing documents at any point before January 19. And at no point did Plaintiff contact the Court to schedule a discovery dispute regarding this issue. The Court will not now decide a written discovery motion-that itself violates the Case Management Order, (Doc. 34 at 3-4)-so long after the deadline, and after the summary judgment motion has been fully briefed. Plaintiff has not shown diligence, and her Motion (Doc. 235) is DENIED.[1]
Defendants have filed one Motion to Strike and four Motions to Exclude, all of which concern Plaintiff's retained experts. (Docs. 154, 191, 192, 193, 194.) First, Defendants ask the Court to strike Dr. Alison Vredenburgh's rebuttal and supplemental reports. (Doc. 154.) Specifically, Defendants argue that Dr. Vredenburgh's opinions are outside the scope of these reports. (Doc. 154.) Additionally, Defendants ask the Court to exclude the testimony of Drs. Vredenburgh, Goodstein, Singhose, and Christensen. The Court will examine the Motion to Strike and then turn to the Motions to Exclude.
First, the Court considers the admissibility of Dr. Vredenburgh's rebuttal report. Expert testimony constitutes rebuttal testimony if it “is intended solely to contradict or rebut evidence on the same subject matter identified by another party.” Fed.R.Civ.P. 26(a)(2)(D) (ii). By definition, rebuttal reports exist to counter the opinions outlined in an opponent's expert disclosures. Guadiana v. State Farm Fire & Cas. Co., No. CIV.07-326TUC FRZ GE, 2010 WL 582220, at *2 (D. Ariz. Jan. 27, 2010). Rebuttal reports cannot be used to introduce new theories or to correct oversights in the plaintiffs' case in chief. Facciola v. Greenberg Traurig LLP, No. CV-10-1025-PHX-FJM, 2012 WL 1242382, at *1 (D. Ariz. Apr. 11, 2012). “Offering a different, purportedly better methodology is a proper way to rebut the methodology of another expert.” Fed.R.Civ.P. 26(a)(2)(D)(ii).
In her rebuttal report, Dr. Vredenburgh responds to what she believes is a flawed premise in two defense experts' reports. Both reports, in so many words, argue that no evidence existed to put Defendants “on notice” of a design flaw that would have allowed them to...
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