Courkamp v. Fisher-Price Incorporated

Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 1 of 35 1 WO — 2 — — 3 — — 4 — 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA — 7 — 8 Kathleen Courkamp, No. CV-19-02689-PHX-GMS 9 Plaintiff, ORDER 10 v. 11 Fisher-Price Incorporated, et al., 12 Defendants. — 13 — — 14 — 15 Pending before the Court are Mattel, Inc. and Fisher-Price Inc.’s (“Defendants”) 16 Motion to Strike the June 7, 2021, Supplemental Expert Report and July 16, 2021, Rebuttal 17 Expert Report of Alison Vredenburgh, PhD, CPE (Doc. 154); Motion to Exclude Plaintiff’s 18 Expert, Michael Goodstein, M.D. (Doc. 191); Motion to Exclude the Opinions of William 19 Singhose, Ph.D. (Doc. 192); Motion to Exclude Plaintiff’s Expert, Alison Vredenburgh, 20 Ph.D. (Doc. 193); Motion to Exclude the Opinions of Erik Christensen, M.D. (Doc. 194); 21 and Motion for Summary Judgment (Doc. 195). Also pending before the Court is Kathleen 22 Courkamp’s (“Plaintiff”) Motion to Supplement Record in Support of Opposition to 23 Motion for Summary Judgment (Doc. 235). For the reasons below, Plaintiff’s Motion to 24 Supplement is denied. All other Motions are granted in part and denied in part. 25 BACKGROUND 26 Defendant Fisher-Price, a wholly owned subsidiary of Defendant Mattel, Inc., 27 developed and sold the Rock ‘n Play Sleeper (“RNPS”) from 2009–2019. The RNPS is an 28 inclined sleeper “designed for day use or overnight sleep for infants that places them at Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 2 of 35 1 approximately a 30-degree angle from the horizontal.” (Doc. 196 at 2.) The RNPS warning 2 label states that belt restraints should always be used, and the product should not be used 3 when the infant is old enough “to push up on hands and knees” or sit unassisted. (Doc. 196 4 at 2.) At the time it was first released, the RNPS complied with ASTM International’s 5 (“ASTM”) safety standard, a voluntary standard set by the industry. (Doc. 196 at 6); 6 (Doc. 244 at 29.) 7 When the RNPS was launched, the American Academy of Pediatrics (“AAP”), 8 recommended that infants sleep on their backs. (Doc. 244 at 2–3.) Later AAP guidance, 9 amended in 2011, included a further recommendation that infants sleep face-up on a flat 10 surface. (Doc. 196 at 6.) After the RNPS was launched, regulators began to express 11 concerns regarding the safety of inclined sleepers. In 2010, the Consumer Product Safety 12 Commission (“CPSC”) sought to implement a regulation that would have limited infant 13 sleeping products to angles of twenty degrees. Defendants opposed the regulation and 14 submitted a letter to CPSC requesting that the standard be revised to accommodate inclined 15 sleepers, which were subsequently excluded from the regulation. Similarly, the 16 Queensland Government’s Office of Fair Trading, Health Canada, and the UK Royal 17 College of Midwives expressed safety concerns over the RNPS because it did not comply 18 with prevailing guidelines for safe sleep. Despite these concerns, the RNPS had “proven 19 successful,” and Defendants continued to market the RNPS in the United States as an 20 overnight sleeper. (Doc. 244-1 at 143.) Two years later, Dr. Roy Benaroch, a board21 certified pediatrician, wrote to Defendant Fisher-Price to raise his concerns regarding the 22 RNPS’s failure to comply with AAP guidelines. By February 2014, Defendants had 23 received at least forty-seven “out of position” reports from consumers, including reports 24 that infants had “[sunk] down,” rolled “to the side,” and “rolled over” in the RNPS. 25 (Doc. 244-5 at 68.) 26 In June 2014, Plaintiff and her eight-month-old daughter (“Z.O.”) were staying with 27 Z.O.’s father’s, Andrew Olson (“Mr. Olson”), at his apartment. Mr. Olson placed Z.O. into 28 an RNPS for the night. The parties dispute whether Mr. Olson used the RNPS’s built-in -2Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 3 of 35 1 restraint system. When Plaintiff and Mr. Olson awoke the next morning, they found Z.O. 2 unresponsive in the RNPS. The parties dispute whether Z.O. was found supine (face-up), 3 prone (face-down), or semi-prone (on her side). Regardless, Plaintiff and Mr. Olson called 4 911. The operator told Mr. Olson to begin administering CPR until paramedics arrived. 5 Mr. Olson moved Z.O. from the RNPS to a flat surface and began performing CPR. The 6 Tempe Fire Department soon responded, and Z.O. was pronounced dead. The autopsy 7 determined that Z.O.’s cause of death was “unknown.” (Doc. 196-33 at 3.) 8 After Z.O. passed away, concerns continued to mount over the safety of the RNPS. 9 Defendant Fisher-Price itself began receiving complaints from consumers that the RNPS 10 was not safe for overnight sleep. Due to these concerns, the CPSC sponsored a study by 11 Dr. Erin Mannen, biomechanics researcher and Assistant Professor of Orthopaedic Surgery 12 at the University of Arkansas for Medical Sciences, who found that inclined sleepers posed 13 a suffocation hazard. In April 2019, after an article in Consumer Reports publicized the 14 CPSC’s concerns with the RNPS, Defendant Fisher-Price voluntarily recalled the product. 15 During its ten-year run, Defendants earned over $200 million from sales of the RNPS. 16 Plaintiff filed this lawsuit for wrongful death in April 2019, seeking damages against 17 Defendants on behalf of herself and other statutory beneficiaries. She alleges that defects 18 in the design of the RNPS and Defendants’ failure to warn caused Z.O.’s death. Plaintiff 19 also alleges a claim for breach of express warranty. Defendants now move for summary 20 judgment, which the Court considers below. 21 DISCUSSION 22 Plaintiff has filed a Motion to Supplement (Doc. 235) the summary judgment 23 record, which the Court will consider first. The Court will then decide Defendants’ four 24 Motions to Exclude before reaching the merits of their Motion for Summary Judgment. 25 I. Motion to Supplement 26 Plaintiff asks to supplement the summary judgment record with documents in 27 support of the Committee on Oversight and Reform’s report on infant deaths in inclined 28 sleepers. (Doc. 235 at 2.) She also asks that the Court “permit further supplementation if -3Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 4 of 35 1 and when Defendants disclose the listed information Plaintiff still seeks.” (Doc. 235 at 6.) 2 Whether to grant a motion to supplement is within a district court’s discretion. Resilient 3 Floor Covering Pension Tr. Fund Bd. of Trs. v. Michael’s Floor Covering, Inc., 801 F.3d 4 1079, 1088 (9th Cir. 2015). “In deciding whether to grant a motion to supplement the 5 record, district courts consider whether the evidence the party is seeking to admit is relevant 6 and also consider whether the motion is made in good faith and whether allowing 7 supplementation would unfairly prejudice the non-moving party.” Udd v. City of Phx., No. 8 CV-18-01616-PHX-DWL, 2020 WL 1904638 , at *2 (D. Ariz. Apr. 17, 2020). The motion 9 to supplement may also be denied if the moving party did not act diligently in discovering 10 the new information. See Stucky v. Dep’t of Educ., 337 F. App’x 611 , 613 (9th Cir. 2009); 11 Nakanelua v. United Pub. Workers, AFSCME, Local 646, AFL-CIO, No. 20-00442 JAO12 KJM, 2022 WL 174098 , at *2 (D. Haw. Jan. 19, 2022) (collecting cases). 13 Plaintiff does not contest that she has had some of the documents at issue since 14 2019. (Doc. 235 at 2); (Doc. 235-1 at 4–5.) And discovery for the documents that Plaintiff 15 complains she doesn’t have closed on October 1, 2021; yet she did not raise this issue until 16 January 19, 2022. (Doc. 166 at 3); (Doc. 179); (Doc. 235-1 at 6.) Importantly, Defendants 17 filed their Motion for Summary Judgment on November 19, 2021, and Plaintiff filed her 18 Response on January 7, 2022. (Docs. 195, 205.) Nothing in the record suggests that 19 Plaintiff attempted to meet and confer with Defendants regarding the missing documents 20 at any point before January 19. And at no point did Plaintiff contact the Court to schedule 21 a discovery dispute regarding this issue. The Court will not now decide a written discovery 22 motion—that itself violates the Case Management Order, (Doc. 34 at 3–4)—so long after 23 the deadline, and after the summary judgment motion has been fully briefed. Plaintiff has 24 not shown diligence, and her Motion (Doc. 235) is DENIED.1 25 II. Motions to Strike and Exclude 26 Defendants have filed one Motion to Strike and four Motions to Exclude, all of 27 1 Plaintiff offers no explanation for why her issues with the missing or allegedly mislabeled documents were not brought up before discovery closed, before Defendants filed their Motion, or 28 before Plaintiff filed her Response. Nor will the Court grant the Motion after giving Plaintiff a prior opportunity to supplement the record. (Doc. 223.) -4Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 5 of 35 1 which concern Plaintiff’s retained experts. (Docs. 154, 191, 192, 193, 194.) First, 2 Defendants ask the Court to strike Dr. Alison Vredenburgh’s rebuttal and supplemental 3 reports. (Doc. 154.) Specifically, Defendants argue that Dr. Vredenburgh’s opinions are 4 outside the scope of these reports. (Doc. 154.) Additionally, Defendants ask the Court to 5 exclude the testimony of Drs. Vredenburgh, Goodstein, Singhose, and Christensen. The 6 Court will examine the Motion to Strike and then turn to the Motions to Exclude. 7 A. Motion to Strike the Expert Report of Alison Vredenburgh 8 1. Rebuttal Report 9 First, the Court considers the admissibility of Dr. Vredenburgh’s rebuttal report. 10 Expert testimony constitutes rebuttal testimony if it “is intended solely to contradict or 11 rebut evidence on the same subject matter identified by another party.” Fed.R.Civ.P. 12 26(a)(2)(D) (ii). By definition, rebuttal reports exist to counter the opinions outlined in an 13 opponent's expert disclosures. Guadiana v. State Farm Fire & Cas. Co., No. CIV.0714 326TUC FRZ GE, 2010 WL 582220 , at *2 (D. Ariz. Jan. 27, 2010). Rebuttal reports 15 cannot be used to introduce new theories or to correct oversights in the plaintiffs' case in 16 chief. Facciola v. Greenberg Traurig LLP, No. CV-10-1025-PHX-FJM, 2012 WL 17 1242382, at *1 (D. Ariz. Apr. 11, 2012). “Offering a different, purportedly better 18 methodology is a proper way to rebut the methodology of another expert.” Fed. R. Civ. P. 19 26(a)(2)(D)(ii). 20 (a) Notice and Evidence of a Hazardous Condition 21 In her rebuttal report, Dr. Vredenburgh responds to what she believes is a flawed 22 premise in two defense experts’ reports. Both reports, in so many words, argue that no 23 evidence existed to put Defendants “on notice” of a design flaw that would have allowed 24 them to prevent Z.O.’s death. (Doc. 154-1 at 48); (Doc. 154-2 at 23–24, 44.) In response, 25 Dr. Vredenburgh opines that although the incidents before Z.O.’s death are relevant to 26 notice, defense experts proceed from an improper premise because incidents after Z.O.’s 27 death are still relevant to the idea that a hazardous condition existed at the time of Z.O.’s 28 death. (Doc. 154-3 at 2–4.) -5Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 6 of 35 1 The basis for Dr. Vredenburgh’s opinions regarding this distinction is in her original 2 report. In the original report, Dr. Vredenburgh states that “Fisher Price was informed of 3 the hazard through incident reports, case histories, communications with international 4 distributors, as well as communication with Dr. Benaroch, a pediatrician, who contacted 5 Fisher Price on several occasions. . . . [Fisher-Price] was aware of at least 66 [sic] incidents 6 with the sleeper prior to [Z.O.’s] death.” (Doc. 154-1 at 5, 8.) This statement is clearly 7 relevant to notice. (Doc. 154-1 at 5 (“Fisher Price was informed of the hazard”).) As for 8 evidence of a hazardous condition, Dr. Vredenburgh states that “there continued to be 9 incidents subsequent to [Z.O.’s] death, even after additional warnings were added per [the 10 relevant regulation], indicating an unsafe design that should not have been ‘remedied’ 11 through warnings.” (Doc. 154-1 at 8 (emphasis added) (footnote omitted).) This statement 12 shows that though the subsequent issues were not relevant to Defendants’ notice before 13 Z.O.’s death, they do tend to show that the RNPS’s design might have been defective. 14 Ultimately, Dr. Vredenburgh’s report rebuts the methodology the experts used to 15 determine whether Defendants were on notice of a design flaw by suggesting that they 16 should have considered incidents that occurred after Z.O.’s death. Given that this 17 testimony is relevant and within the proper scope of a rebuttal report, Defendants’ Motion 18 is DENIED. 19 (b) FMEA and Testing 20 Next, Defendants argue that Dr. Vredenburgh’s opinions regarding Failure Modes 21 and Effects Analysis should be excluded because it is outside the scope of a rebuttal report. 22 (Doc. 154 at 11.) Dr. Vredenburgh eventually disclaimed these opinions as beyond her 23 expertise. See infra Part II.B.4. Therefore, the Court will not consider them when deciding 24 the Motion for Summary Judgment, nor will they be admissible at trial. 25 (c) Inappropriate Post-Deposition Interviews 26 Dr. Vredenburgh conducted two interviews of Plaintiff and Mr. Olson after their 27 depositions that, according to Defendants, contradict their deposition testimony. (Doc. 154 28 at 12.) Dr. Vredenburgh relies on these interviews in her rebuttal report to dispute -6Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 7 of 35 1 Defendants’ claims that the warnings were sufficient. (Doc. 154-3 at 19.) Plaintiff has not 2 offered a plausible explanation for why these interviews were included in Dr. 3 Vredenburgh’s rebuttal report. Thus, it seems they were included to correct oversights in 4 Plaintiff’s case in chief, which is not within the proper scope of rebuttal evidence. 5 Accordingly, the Court does not consider these interviews or Dr. Vredenburgh’s opinions 6 on this point in deciding the Motion for Summary Judgment, nor will it permit Plaintiffs’ 7 statements to her thereafter to be admitted at trial. Defendants’ request is DENIED without 8 prejudice. 9 2. Supplemental Report 10 Defendants similarly object to Dr. Vredenburgh’s supplemental report because it 11 allegedly contains new opinions outside the scope of her original report. (Doc. 154 at 10.) 12 As explained in the Case Management Order (Doc. 34), “absent extraordinary 13 circumstances, parties will not be permitted to supplement expert reports after [the expert 14 disclosure deadline].” (Doc. 34 at 3.) There are no extraordinary circumstances in this 15 instance. Plaintiff received the documents used in the supplemental report before Dr. 16 Vredenburgh’s initial report in April 2021, i.e., months before the expert disclosure 17 deadline. (Doc. 158 at 13); (Doc. 159 at 6.) Additionally, Plaintiff argues that the 18 supplemental report was necessary because of Defendants’ “data dump” of voluminous 19 discovery, however, Dr. Vredenburgh’s supplemental report offers new conclusions by 20 relying on largely the same information that she references in her initial report. 2 Thus, 21 even if the Court accepted that voluminous discovery constituted an extraordinary 22 circumstance, these facts suggest that the supplemental report does not come within the 23 Court’s narrow, emergency exception for supplementing expert reports after the disclosure 24 deadline. Defendants’ Motion is GRANTED. 25 B. Motion to Exclude Dr. Vredenburgh 26 Defendants argue that Dr. Vredenburgh’s testimony should be excluded because her — 27 — — 2 — For example, she introduces a “new” ASTM warning in her supplemental report. However, the 28 sole difference between the two warnings is the addition of “Stop using when baby reaches 5 months” in the supplemental report. (Doc. 154-2 at 68.) -7Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 8 of 35 1 opinions about the content and location of the RNPS warning were unreliable and 2 irrelevant. More specifically, they suggest that: Dr. Vredenburgh did not use scientifically 3 reliable methods to test her opinions, her testimony is irrelevant and will not help the jury, 4 and her proposed alternative warnings are not expert opinion but rather a recitation of the 5 ASTM warning. (Doc. 193.) Defendants also argue that Dr. Vredenburgh is unqualified 6 to offer opinions on the RNPS’s alleged design defects and Defendants’ knowledge of such 7 defects. (Doc. 193.) 8 1. Legal Standard 9 Pursuant to Federal Rule of Evidence 702, 10 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 11 opinion or otherwise if: 12 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the 13 evidence or to determine a fact in issue; 14 (b) the testimony is based on sufficient facts or data; 15 (c) the testimony is the product of reliable principles and methods; and — 16 — (d) the expert has reliably applied the principles and methods 17 to the facts of the case. 18 The Court acts as a gatekeeper to ensure the proffered testimony is both relevant 19 and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993). The Court 20 is afforded broad discretion when acting in its gatekeeper role. United States v. Hankey, — 21 — 203 F.3d 1160, 1168 (9th Cir. 2000); see also Kumho Tire Co. v. Carmichael, 526 U.S. 22 137, 150–53 (1999). However, “Rule 702 should be applied with a ‘liberal thrust’ favoring 23 admission.” Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) 24 (quoting Daubert, 509 U.S. at 588 ). “Shaky but admissible evidence is to be attacked by 25 cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” 26 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). 27 Expert opinion testimony is reliable “if the knowledge underlying it has a reliable 28 basis in the knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at -8Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 9 of 35 1 565. When making this determination, the Court should consider (1) whether the theory 2 can be and has been tested, (2) whether the theory has been peer reviewed and published, 3 (3) what the theory’s known or potential error rate is, and (4) whether the theory enjoys 4 general acceptance in the applicable scientific community. Murray v. S. Route Mar. SA, — 5 — 870 F.3d 915, 922 (9th Cir. 2017). However, these factors are not exhaustive, nor are they 6 “equally applicable (or applicable at all) in every case.” Daubert v. Merrell Dow Pharm., 7 Inc., 43 F.3d 1311 , 1317 (9th Cir. 1995). “Applicability ‘depend[s] on the nature of the 8 issue, the expert’s particular expertise, and the subject of his testimony.’” Murray, 870 9 F.3d at 922 (quoting Kumho Tire Co., 526 U.S. at 150). 10 2. Reliability 11 Defendants claim that Dr. Vredenburgh’s testimony should be excluded because she 12 did not conduct a scientifically reliable method to test her opinions. However, Dr. 13 Vredenburgh testified that she did not conduct any independent testing of the RNPS 14 because it was “unsafe,” and she preferred not to “giv[e] parents a device that I know has 15 been recalled.” (Doc. 193-2 at 21.) Although Dr. Vredenburgh’s failure to test weighs 16 against admissibility, it is not dispositive. Rodriguez v. JLG Indus., Inc., No. CV 11-04586 17 MMM (SHx), 2012 WL 12883784 , at *10 (C.D. Cal. Aug. 3, 2012). In lieu of independent 18 testing, Dr. Vredenburgh applied “well-recognized” human factors principles to the facts 19 of the case and her review of the record was extensive. (Doc. 193-1 at 4–5.); (Doc. 193-1 20 at 29–45.) Her report cites multiple scholarly sources and applies the “hazard control 21 hierarchy,” which is well-established in the human-factors field and has been admitted in 22 other courts. Rodriguez, 2012 WL 12883784 , at *10–11; Lister v. Hyatt Corp., No. C1823 0961JLR, 2019 WL 6701407 , at *12–13 (W.D. Wa. Dec. 9, 2019); Nay v. BNSF Ry. Co., 24 No. C19-5425-BHS-MLP, 2021 WL 5321979 , at *3, 10–13 (W.D. Wa. Nov. 16, 2021); 25 (Doc. 193-1 at 52–59.) Thus, applying the liberal admissibility standard in Rule 702, her 26 methodology is sufficient. The Court DENIES Defendants’ Motion on this ground.3 27 3 In every Motion to Exclude, Defendants ask the Court to preemptively prohibit Plaintiff’s experts from expressing certain opinions that have been disclaimed or are outside their area of expertise. 28 (Doc. 191 at 19); (Doc. 192 at 15–16); (Doc. 193 at 18); (Doc. 194 at 16.) These requests are not relevant to the Motion for Summary Judgment, in which the Court is bound by the record as -9Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 10 of 35 1 3. Relevancy 2 Next, Defendants contend that Dr. Vredenburgh’s opinions on the content and 3 location of the RNPS’s warnings are irrelevant because Plaintiff and Mr. Olson testified 4 that they read and understood the warnings. (Doc. 193 at 10–14.) Dr. Vredenburgh’s 5 opinion on these two issues is relevant to only one claim for which Defendants have moved 6 for summary judgment: failure to warn. (Doc. 195 at 33.) To prevail on this claim, the 7 plaintiff must prove that her injuries were caused by the failure to warn. Sw. Pet. Prods., 8 Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1060 (D. Ariz. 2003); Ariz. Rev. Stat. 9 § 12-683. Whether the warnings on the RNPS contained sufficient content to warn against 10 the risk of suffocation—as opposed to a fall hazard—is highly relevant to causation. It is 11 not disputed that both Plaintiff and Mr. Olson read and understood the warning as written. 12 (Doc. 193 at 10–12); (Doc. 238 at 10). Even so, their understanding would be meaningless 13 if the jury found that the warning itself was insufficient to warn against a substantial risk 14 of suffocation. Dr. Vredenburgh’s testimony will thus help the jury decide whether 15 Plaintiff and Mr. Olson’s having read the warnings is sufficient to break the causal chain. 16 But the same is not true for Dr. Vredenburgh’s testimony regarding the deficient 17 placement of the warnings. If Plaintiff and Mr. Olson did, as they have testified, read and 18 understand the warnings, Dr. Vredenburgh’s opinion regarding the warning location has 19 no bearing on this case. (Doc. 193 at 10); (Doc. 238 at 10.) Plaintiff read the warning 20 regardless of its placement, and, thus, Z.O.’s injuries could not have been caused by the 21 allegedly deficient placement. At oral argument, Plaintiff acknowledged as much. 22 Defendants’ Motion is GRANTED as to the location of the warnings, but it is DENIED as 23 to content. 24 4. Alternative Warning 25 Defendants argue that Dr. Vredenburgh’s proposed alternative warnings should be 26 excluded because she did not conduct independent research. (Doc. 193 at 15.) The Court 27 presented. At trial, no witness will be permitted to testify as to matters he or she has disclaimed or which are outside their area of expertise except to the extent that Rule 702 allows an expert to 28 consider some hearsay evidence. - 10 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 11 of 35 1 has already determined that Dr. Vredenburgh’s supplement, where she first presents her 2 alternative warnings, should be stricken. As such, Defendants’ Motion is GRANTED, and 3 Dr. Vredenburgh’s opinion on the alternative warnings is excluded. 4 5. Qualification 5 Finally, Defendants contend that Dr. Vredenburgh should be excluded because she 6 is not qualified. (Doc. 193 at 15–17.) Neither Dr. Vredenburgh nor Plaintiff seem to 7 contest that Dr. Vredenburgh’s opinions regarding the adequacy of Defendants’ testing are 8 outside her area of expertise. (Doc. 193-2 at 38–39); (Doc. 238 at 14.) For that reason, 9 those opinions are not admissible, nor will the Court consider such opinions when deciding 10 the Motion for Summary Judgment. 11 However, to the extent that Defendants argue that Dr. Vredenburgh cannot rely on 12 Dr. Singhose’s conclusions at all, this argument is contrary to law. “[E]xpert opinions may 13 find a basis in part on ‘what a different expert believes on the basis of expert knowledge 14 not possessed by the first expert.’” In re Toyota Motor Corp. Unintended Acceleration 15 Mktg., Sales Pracs., & Prods. Liab. Litig., 978 F. Supp. 2d 1053, 1066 (C.D. Cal. 2013) 16 (citation omitted) (quoting Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 , 613-14 17 (7th Cir. 2002)); In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-0264118 PHX-DGC, 2017 WL 6554163 , at *2 (D. Ariz. Dec. 22, 2017). Although Dr. Vredenburgh 19 relies on Dr. Singhose’s finding that the RNPS was defective, such a finding was required 20 for her to opine on whether Defendants’ warnings were sufficient to apprise consumers of 21 the potential risks of that defect. As such, Dr. Vredenburgh does not “parrot” Dr. 22 Singhose’s opinions but instead builds on them, which is permissible under Federal Rule 23 of Evidence 703. In re Bard, 2017 WL 6554163 , at *2 (collecting cases); In re Toyota, — 24 — 978 F. Supp. 2d at 1073, 1078, 1082 (finding that if the underlying expert’s opinion is 25 admissible, and the testifying expert is not merely a conduit for that opinion, the testifying 26 expert may rely on the underlying expert’s opinion). Defendants’ Motion is DENIED. 27 Finally, the Court does not consider Dr. Vredenburgh qualified to opine on whether 28 Defendants knew or should have known of the RNPS’ risk of suffocation. (Doc. 193 at - 11 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 12 of 35 1 17.) District courts regularly exclude expert opinion on corporate knowledge, intent, or 2 state of mind because such testimony invades the province of the jury. Gomez v. Am. Med. 3 Sys., Inc., No. CV-20-00393-PHX-ROS, 2021 WL 1163087 , at *4–5 (D. Ariz. Mar. 26, 4 2021); Siring v. Or. State of Higher Educ. ex rel. E. Or. Univ., 927 F. Supp. 2d 1069 , 1077 5 (D. Or. 2013) (collecting cases); Johnson v. Wyeth, No. CV 10–02690–PHX–FJM, 2012 6 WL 1204081 , at *3 (D. Ariz. Apr. 11, 2012); In re Bard, 2018 WL 495187 , at *3; Glaukos 7 Corp. v. Ivantis, Inc., No. SACV 18-620 JVS (JDEx), 2020 WL 10501851 , at *12–13 (C.D. 8 Cal. July 23, 2020). Accordingly, the Court did not consider Dr. Vredenburgh’s opinion 9 on this issue when deciding the Motion for Summary Judgment and will not permit Dr. 10 Vredenburgh to testify to such opinions at trial. 11 C. Motion to Exclude Dr. Michael Goodstein 12 Defendants ask the Court to exclude Dr. Michael Goodstein’s testimony regarding 13 infant sleep safety recommendations, his opinions regarding rebreathing, and his opinion 14 that Z.O. did not have an increased risk of sudden infant death syndrome (“SIDS”). 15 (Doc. 191.) 16 1. General Infant Sleep Safety Recommendations 17 Dr. Goodstein’s opinions on the AAP safe sleep recommendations properly “fit” the 18 facts of this case. To prevail on her design defect claim, Plaintiff must prove the existence 19 of a defective condition. “A defective condition is a condition not contemplated by the 20 ultimate consumer which will be unreasonably dangerous to him.” Hohlenkamp v. Rheem 21 Mfg. Co., 134 Ariz. 208, 211 , 655 P.2d 32, 35 (Ct. App. 1982). “The term ‘unreasonably 22 dangerous’ means ‘dangerous to an extent beyond that which would be contemplated by 23 the ordinary consumer who purchases it . . . .’” Id. Dr. Goodstein’s testimony might aid 24 the jury in deciding whether the RNPS contained such an unreasonably dangerous 25 condition by deviating from AAP safe sleep recommendations. Defendants’ Motion is 26 DENIED on this ground. 27 2. SIDS and Rebreathing 28 Dr. Goodstein opines that Z.O. was not at an increased risk of SIDS based on her - 12 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 13 of 35 1 medical history. (Doc. 191-1 at 20.) Defendants argue that Dr. Goodstein’s methodology 2 is flawed because he did not consider certain extrinsic risk factors for SIDS. (Doc. 191 at 3 6.) The Court will permit Dr. Goodstein to opine as to the internal or medical history risk 4 factors of Z.O. only, but not as to extrinsic factors. Dr. Goodstein may, of course, be cross5 examined on the narrow focus of his opinion. 6 Defendants also argue that Dr. Goodstein’s opinions on “rebreathing” should be 7 excluded because they were first presented at his deposition and not in his initial report. 8 (Doc. 191 at 17–18.) But Dr. Goodstein did not first opine on rebreathing at his deposition. 9 Dr. Goodstein clearly addressed rebreathing in his initial report: “[T]he prone position can 10 increase the risk of rebreathing expired gases which can lead to increased carbon dioxide 11 levels and low oxygen levels in the blood.” (Doc. 191-1 at 7 (emphasis added) (footnotes 12 omitted).) Dr. Goodstein will be permitted to opine on rebreathing to the extent he does so 13 in his initial report. 14 D. Motion to Exclude Dr. William Singhose 15 Defendants ask the Court to exclude Dr. Singhose because his opinions regarding 16 infants’ ability to roll in the RNPS and breathe through the RNPS fabric lack pre- and post17 market testing, and his proposed safer alternative design are not based on a reliable 18 methodology. (Doc. 192.) 19 1. Rolling from Supine to Prone 20 Dr. Singhose did not independently test his theory that it is easier for infants to roll 21 from a supine to prone position on an inclined sleeping surface than it is for them to do so 22 on a flat surface. As explained above, however, the lack of independent testing alone does 23 not merit exclusion. See supra Part II.B.1. Dr. Singhose applied his knowledge of the 24 “well-studied” development and biomechanical processes of infant rolling to the RNPS to 25 determine whether its design made it easier for infants to roll. (Doc. 192-1 at 16.) 26 Defendants take no issue with his sources but point to Dr. Singhose’s lack of testing. But 27 Dr. Singhose explicitly explained why he did not perform this type of testing: Such testing 28 would have taken several weeks and, therefore, was impossible to conduct during the - 13 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 14 of 35 1 COVID-19 pandemic. (Doc. 192-4 at 45–46, 59.) In lieu of this long-term testing, Dr. 2 Singhose opted to take measurements of the various angles of the RNPS and studied how 3 differently sized infants moved while restrained or unrestrained. (Docs. 192-1, 192-2.) 4 Based on that analysis, Dr. Singhose determined that the combination of the steep angle of 5 the footrest and the inclined surface allowed infants to extend their knees to push up and 6 out of the restraint, if one was used, and if unrestrained, the incline would “make[] it easier 7 for an infant to roll over, as compared to a level sleeping surface.” (Doc. 192-2 at 16.) As 8 such, Dr. Singhose’s lack of testing is not dispositive because other evidence supports Dr. 9 Singhose’s conclusions. Defendants’ Motion is DENIED on this ground. 10 2. Breathability Analysis 11 Defendants argue that Dr. Singhose’s breathability testing was unreliable because 12 he merely breathed into the fabric to determine if he could breathe through it. (Doc. 192 13 at 10.) Defendants’ own employees do not believe a test exists for “rebreathing” or 14 “breathability” and thus did not perform such tests when designing the RNPS. (Doc. 237-7 15 at 3); (Doc. 237-8 at 3.) But even if Dr. Singhose’s breathability test standing alone would 16 not be “reliable,” Dr. Singhose did not rely solely on this test in generating his opinions: 17 Dr. Singhose used a combination of his own tests, the testimony of Defendant Fisher18 Price’s employees, the Mannen study’s test results, and the RNPS measurements to 19 determine whether an infant in the “prone” position could adequately breathe through the 20 RNPS fabric. (Doc. 192-2 at 9–13.) Dr. Singhose opined that, based on the distance 21 between them, the “mesh” fabric on the sides of the RNPS would not have significantly 22 improved breathability for a child in the prone position, i.e., one whose face was pressed 23 into the back of the RNPS, not the side. (Doc. 192-2 at 11.) Moreover, portions of the 24 Mannen study also corroborate the idea that infants were more than twice as likely to 25 experience “oxygen saturation concerns” in an inclined sleep product than they were in a 26 crib. (Doc. 192-2 at 11–13.) These findings were further supported by Fisher-Price’s 27 employees, one of which stated that “[T]he basic pad that the – that the child is resting on 28 in the plaintiff’s product does not have breathable materials on it.” (Doc. 192-2 at 9.) Thus, - 14 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 15 of 35 1 Dr. Singhose’s opinions are adequately supported by reliable evidence, and Defendants’ 2 Motion is DENIED.4 3 3. Opinions Regarding Defendants’ Lack of Testing 4 Dr. Singhose offers several opinions assessing the adequacy of Defendant Fisher5 Price’s testing, both pre- and post-release of the RNPS to the market. (Doc. 192-2 at 6 17-25.) District courts agree that although an expert may opine regarding a manufacturer’s 7 deficient testing of a product, such opinions must be rooted in objective standards in the 8 industry—as opposed to an expert’s subjective opinion. 5 Johnson, 2012 WL 1204081, at 9 *1–2 (quoting Daubert, 509 U.S. at 590 ) (“Because plaintiff cannot point to any objective 10 standard relied on by [the experts] that required defendants to perform additional testing, 11 plaintiff has not shown that the failure to test opinions are anything more than ‘subjective 12 belief or unsupported speculation.’”); Kaufman v. Pfizer Pharms., Inc., No. 1:02-CV13 22692, 2011 WL 7659333 , at *6–8 (S.D. Fla. Aug. 4, 2011) (excluding expert’s opinion 14 on defendant’s failure to test because they could identify no governmental or other 15 objective standard by which to measure whether defendant conducted adequate testing); In 16 re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12–MD–02327, 2014 WL 17 186872, at *18–19 (S.D. W. Va. Jan. 15, 2014) (excluding expert because she “[did] not 18 explain the bases for her opinion that [defendant’s] testing was inadequate” other than 19 merely opining that certain hazards should have been tested for); In re Prempro Prods. 20 Liab. Litig., No. 4:03CV01507–WRW, 2010 WL 5663003 , at *2 (E.D. Ark. Sept. 16, 2010) — 21 — — 4 — To the extent that Defendants contend that Dr. Singhose’s opinion does not “fit” the facts of this 22 case, their Motion is also denied. The position in which Z.O. was found is a contested issue of fact. Dr. Singhose doubted Mr. Olson’s ability to accurately recreate the positioning so shortly 23 after Z.O.’s death because of the recent trauma and because the RNPS and mannequin used were not representative of the actual circumstances of Z.O.’s death. (Doc. 192-4 at 70–71.) Defendants, 24 of course, may challenge Dr. Singhose’s version of the facts at trial, but the Court will not exclude Dr. Singhose’s testimony based on disputes about the position of the child’s head when she was 25 discovered. 26 5 Of course, an expert may rely on her own experience when determining whether a manufacturer failed to test a product, but she must cite to her relevant experience in the industry that, when 27 applied, show that the product was not adequately tested. Johnson, 2012 WL 1204081 , at *1; Kaufman, 2011 WL 7659333 , at *7 (“[The expert] must explain how her experiences led to the 28 conclusions she reached, why her experiences are sufficient bases for her opinions, and how her experiences are reliably applied to the facts of the case.”) - 15 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 16 of 35 1 (“Without some established industry standard, [an expert] would only be able to 2 subjectively testify about what companies could do by the way of testing rather than what 3 Defendants were required to do.”) The objective standard requirement goes not to 4 relevancy—whether the expert’s testimony will aid the jury—but to reliability. Johnson, — 5 — 2012 WL 1204081 , at *2 (excluded for unreliability); Kaufman, 2011 WL 7659333 , at *9 6 (same); In re Ethicon, Inc., 2014 WL 186872 , at *18 (same). But see Sardis v. Overhead 7 Door Corp., 10 F.4th 268 , 289 (4th Cir. 2021) (deciding this issue under Daubert’s 8 relevancy test); In re Prempro, 2010 WL 5663003 , at *3 (deciding the issue under expert 9 qualification rather than reliability). Subjective opinion testimony, untethered to specific 10 industry experience or other objective standards, is not reliable and, thus, inadmissible. 11 Johnson, 2012 WL 1204081, at *1; Icon-IP Pty Ltd. v. Specialized Bicycle Components, 12 Inc., 87 F. Supp. 3d 928, 939 (N.D. Cal. 2015); Daubert, 509 U.S. at 590 . 13 Although most district court authority—including in this very district—weighs 14 against the admission of expert testimony on failure to test, this is not always the case. See 15 Baldonado v. Wyeth, No. 04 C 4312, 2012 WL 3234240 , at *3–7 (N.D. Ill. Aug. 6, 2012); 16 Eghnayem v. Boston Sci. Co., 57 F. Supp. 3d 658, 695 (S.D. W. Va. Oct. 27, 2014). In 17 these cases, however, the experts cited any relevant—even if not wholly applicable— 18 regulations, as well as their own experience or other peer-reviewed research, to support 19 their opinions on the defendant’s failure to perform adequate testing. Here, Dr. Singhose 20 fails to connect his opinions regarding Defendant Fisher-Price’s failure to test to any 21 objective standard or his own relevant experience. This section of his report merely states 22 his findings regarding the risks posed by the RNPS’s design, his opinion that Defendant 23 Fisher-Price should have tested for those risks, and how Defendant Fisher-Price could have 24 tested for those risks. (Doc. 192-2 at 17–25.) But, like in Ethicon, Dr. Singhose is not 25 basing his opinions on any objective measurement other than the general reality that risks 26 exist.6 This is insufficient. Instead, Dr. Singhose was required to cite some objective 27 6 At some points in his report, Dr. Singhose uses Defendants’ own knowledge of RNPS’s defects to argue that Defendants should have done additional testing. (Doc. 192-2 at 32, 34–35, 37.) 28 However, this analysis alone is insufficient, and to the extent Dr. Singhose opines about Defendants’ corporate knowledge or state of mind, his opinion is likewise inadmissible. Johnson, - 16 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 17 of 35 1 evidence—any applicable industry regulations or peer-reviewed studies or his own relevant 2 experiences—to support that Defendant Fisher-Price should have tested for these specific 3 hazards. He did not do so. As such, Defendants’ Motion is GRANTED as to Dr. 4 Singhose’s opinions regarding Defendant Fisher-Price’s failure to test.7 5 4. Safer Alternative Design 6 Defendants next argue that Dr. Singhose’s opinions regarding a safer alternative 7 design are unreliable.8 Dr. Singhose’s proposed alternative design is “a bassinet with a 8 level[] or nearly level sleeping surface.” (Doc. 192-2 at 39.) Although Dr. Singhose did 9 not test his alternative design, this is not dispositive, especially when, as here, the 10 alternative design is an already-existing product that has been widely marketed, including 11 by Defendants themselves. Ramirez v. ITW Food Equip. Grp., 686 F. App’x 435, 440 (9th 12 Cir. 2017) (“[T]he reliability of an expert’s theory turns on whether it ‘can be tested,’ not 13 whether he has tested it himself.”) (citation omitted). Regardless, Dr. Singhose’s 14 alternative is capable of being (and has been) tested, even if he did not perform any testing. 15 Moreover, to the extent that Defendants take issue with Dr. Singhose’s lack of specificity, 16 the Court fails to see how an unclear articulation of an expert’s conclusion—as opposed to 17 his methodology—shows that the methodology is unreliable. Even if that consideration is 18 relevant, however, it does not weigh against Plaintiff here. Dr. Singhose’s report 19 extensively argues that the RNPS’s inclined sleeping surface of thirty degrees is a 20 dangerous design defect. Dr. Singhose did not opine as to how much of an angle is 21 generally too steep for sleepers but limited his testimony to the RNPS. Given this context, — 22 — 2012 WL 1204081 , at *3; Miranda v. U.S. Sec. Asscs., Inc., No. 18-CV-00734-LHK, 2019 WL 2929966 , at *1 (N.D. Cal. July 8, 2019) (collecting cases); Lanard Toys Ltd. v. Anker Play Prods., 23 LLC, No. CV 19-4350-RSWL-AFMx, 2020 WL 6873647 , at *7 (C.D. Cal. Nov. 12, 2020) (same). 24 7 To the extent that Dr. Singhose’s opinions pertain to the deficiencies in the testing that Defendant Fisher-Price actually did perform—as opposed to what Fisher-Price didn’t perform—his opinions 25 are admissible so long as they are relevant, properly disclosed, supported, and reliable. Defendants do not seem to contest the reliability of these opinions, so the Court will not consider them here. 26 (Doc. 192 at 11–14.) 27 8 Defendants attempt to make a relevancy argument in their Reply, which the Court will not consider. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not 28 consider arguments raised for the first time in a reply brief.”). - 17 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 18 of 35 1 Dr. Singhose’s proposed alternative design, though not a model of clarity, is sufficiently 2 clear to be admissible under Daubert. 3 E. Motion to Exclude Erik Christensen 4 Defendants argue that Plaintiff’s causation expert, Dr. Erik Christensen, should be 5 excluded because he failed to explain the posterior lividity found on Z.O. in the hours after 6 her death and assumes that a stain on the RNPS is a blood stain without having it tested. 7 Defendants thus urge that he failed to engage in appropriate differential diagnosis analysis 8 by failing to consider SIDS as an alternative cause of death. (Doc. 194.) “Differential 9 diagnosis is a common scientific technique, and federal courts, generally speaking, have 10 recognized that a properly conducted differential diagnosis is admissible under Daubert.” 11 Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1057 (9th Cir. 2003). “The first step in 12 the diagnostic process is to compile a comprehensive list of hypotheses that might explain 13 the set of salient clinical findings under consideration.” Id. (citing Jerome P. Kassirer & 14 Richard I. Kopelman, Learning Clinical Reasoning 112 (1991)). Testimony that rules in a 15 potential cause that is not capable of causing the patient’s symptoms or mortality, or 16 testimony that neglects to consider a hypothesis that might explain the clinical findings, 17 may be unreliable and, thus, inadmissible under Daubert. Id. at 1057–58. The second step 18 requires “a process of elimination” that “eliminat[es] hypotheses on the basis of a 19 continuing examination of the evidence” to determine the most likely cause of the findings 20 in that particular case. Id. at 1058 . “A district court is justified in excluding evidence if an 21 expert ‘utterly fails . . . to offer an explanation for why [a] proffered alternative cause’ was 22 ruled out.” Id. (quoting Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir. 23 2001)). “The expert must provide reasons for rejecting alternative hypotheses ‘using 24 scientific methods and procedures[,]’ and the elimination of those hypotheses must be 25 founded on more than ‘subjective beliefs or unsupported speculation.’” Id. (quoting Claar 26 v. Burlington N. R.R. Co., 29 F.3d 499, 502 (9th Cir. 1994)). 27 Here, Dr. Christensen properly considered and excluded SIDS as a cause of Z.O.’s 28 death. Dr. Christensen noted that a SIDS diagnosis “applie[s] when no other cause of an - 18 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 19 of 35 1 infant death is identified following autopsy and investigation.” (Doc. 194-1 at 5.) Clearly, 2 however, Dr. Christensen did identify another cause: asphyxia. (Doc. 194-1 at 5.) 3 According to Dr. Christensen, then, such a finding necessarily precludes a SIDS diagnosis. 4 Indeed, Dr. Christensen specifically cites to Dr. Michael Ferenc’s9 deposition on this point, 5 in which Dr. Ferenc also states that “SIDS is a diagnosis of exclusion.” (Doc. 194-1 at 5); 6 (Doc. 194-20 at 18.) Therefore, Defendants’ contention that Dr. Christensen did not 7 consider SIDS is erroneous. Moreover, in addition to SIDS, Dr. Christensen considered 8 and excluded congenital molecular abnormalities and hyperthermia as potential causes. 9 (Doc. 194-1 at 6.) In doing so, Dr. Christensen carefully considered whether these potential 10 causes could explain the circumstances of the death, including the position in which Z.O. 11 was found. (Doc. 194-1 at 6.) Dr. Christensen concluded that, based on his analysis of the 12 documents and testimony, and his decades of experience, neither alternative cause 13 explained the circumstances as well as asphyxia. (Doc. 194-1 at 5–6.) 14 Nor does Dr. Christensen’s failure to consider the lividity of Z.O.’s body merit his 15 exclusion. Dr. Christensen consistently distinguishes between “lividity” as defined and 16 interpreted in textbooks and the lividity he has personally seen and investigated in his 17 career. (Doc. 194-15 at 37, 46, 55.). As explained by the Ninth Circuit, “there is nothing 18 wrong with a doctor relying on extensive clinical experience when making a differential 19 diagnosis.” Messick, 747 F.3d at 1198 . Thus, Dr. Christensen’s reliance on his experience 20 may be sufficient alone to defeat Defendants’ Motion. But Dr. Christensen is not solely 21 relying on his own experience. Dr. Christensen also agreed with Dr. Ferenc that because 22 so much time had passed between when Z.O. passed away and when her autopsy was 23 performed, lividity was far less relevant. (Doc. 194-15 at 37); (Doc. 194-20 at 41.) As 24 noted by Dr. Ferenc, lividity only becomes “fixed”—unchanging—after “hours and hours 25 . . . and a lot of cooling.” (Doc. 194-20 at 43.) Because the time of Z.O.’s death is 26 unknown, it is far more difficult, according to Dr. Christensen and Dr. Ferenc, to determine 27 when lividity became “fixed.” This matters because it is undisputed that Z.O.’s body was 28 9 Dr. Ferenc performed Z.O.’s autopsy. (Doc. 194-20 at 5.) - 19 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 20 of 35 1 moved shortly after she was discovered. (Doc. 196 at 10); (Doc. 206 at 33.) Moreover, if 2 the jury believes Plaintiff’s version of events, not only was Z.O. moved after she was found 3 deceased, she was moved from a prone position to a supine position. Thus, depending on 4 the progress of the lividity at that time, Z.O.’s body being moved “[c]ould certainly [have] 5 allow[ed] for redistribution of lividity, and disruption of early rigor mortis.” (Doc. 194-16 6 at 6.) In short, Dr. Christensen’s choice to rely on his own experiences regarding lividity, 7 Dr. Ferenc’s opinions, and the fact that Z.O.’s body was moved, does not justify the 8 exclusion of his testimony. 9 Finally, Dr. Christensen did not “cherry-pick” facts to support his conclusion. 10 “Cherry picking” occurs when an expert makes a conclusion first, and then considers only 11 the evidence that supports that preconceived conclusion. Claar, 29 F.3d at 502–03; In re 12 Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prods. Liab. Litig., 892 F.3d 624 , 13 634 (4th Cir. 2018). Many of the facts surrounding Z.O.’s death are disputed. They are 14 also contradictory. Dr. Christensen had to choose which facts to use in his diagnosis, and 15 he did so. (Doc. 194-15 at 49.) Only two people observed Z.O.’s position before she was 16 moved: Mr. Olson and Plaintiff. Both told the Tempe Fire Department responders (who 17 arrived before the police) that Z.O. was “prone” when they found her. (Doc. 194-14 at 3.) 18 And, as Dr. Christensen points out, that fact is also supported by the stain found under 19 Z.O.’s head and the lack of any evidence of liquid having run at an angle down Z.O.’s face. 20 (Doc. 194-15 at 49.) In a case like this in which the evidence is disputed and contradictory, 21 the Court will not exclude Dr. Christensen’s testimony and leave for the jury to decide how 22 the facts they believe are true impact the weight of Dr. Christensen’s opinions. IceMOS 23 Tech. Corp. v. Omron Corp., No. CV-17-02575-PHX-JAT, 2019 WL 6075361 , at *4 (D. 24 Ariz. Nov. 15, 2019) (“[D]isagreement over which facts an expert decided to rely on is not 25 an appropriate ground for exclusion of expert testimony.”); Andersen v. City of Chicago, — 26 — 454 F. Supp. 3d 808 , 814–15 (N.D. Ill. 2020) (collecting cases); Nucor Corp. v. Requenez, 27 --- F.Supp.3d ----, 2022 WL 36095 , at *4 (S.D. Tex. Jan. 4, 2022). Defendants’ Motion is — 28 — - 20 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 21 of 35 1 DENIED.10 2 III. Motion for Summary Judgment 3 The purpose of summary judgment is “to isolate and dispose of factually 4 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317 , 323–24 (1986). Summary 5 judgment is appropriate if the evidence, viewed in the light most favorable to the 6 nonmoving party, shows “that there is no genuine dispute as to any material fact and the 7 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes 8 over facts that might affect the outcome of the suit will preclude the entry of summary 9 judgment, and the disputed evidence must be “such that a reasonable jury could return a 10 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 11 (1986). 12 “[A] party seeking summary judgment always bears the initial responsibility of 13 informing the district court of the basis for its motion, and identifying those portions of 14 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 15 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 16 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 17 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 18 56(c)(1). A district court has no independent duty “to scour the record in search of a 19 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Here, 20 Defendants ask for summary judgment on Plaintiff’s products liability claim, negligence 21 claim, breach of express warranty claim, and request for punitive damages. (Doc. 195.) 22 A. Statute of Limitations 23 Defendants argue that Plaintiff’s products liability, express warranty, and 24 negligence claims are barred by the statute of limitations. (Doc. 195 at 23.) In Arizona, a 25 “product liability action” must be “commenced and prosecuted within the period prescribed 26 10 Dr. Christensen will not be permitted to opine on the AAP standards because he is not qualified. Under Federal Rule of Evidence 702, a witness may be qualified as an expert by “knowledge, skill, 27 experience, training, or education.” Dr. Christensen expressly disclaimed that he was an expert on the “American Association of Pediatrics and its guidelines.” (Doc. 194-15 at 13.) As such, the 28 Court will not consider Dr. Christensen’s testimony on this point, nor will it permit him to testify to it at trial. - 21 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 22 of 35 1 in § 12-542.” Ariz. Rev. Stat. § 12-551 . Section 12-542 provides that actions for injuries 2 or death to another must be “commenced and prosecuted within two years.” § 12-542. 3 Notwithstanding the statutory language, however, Arizona courts follow the discovery 4 rule: “[A] cause of action does not accrue until the plaintiff knows or with reasonable 5 diligence should know the facts underlying the cause.” Doe v. Roe, 191 Ariz. 313, 322 , — 6 — 955 P.2d 951, 960 (1998). “[D]eterminations of the time when discovery occurs and a 7 cause of action accrues ‘are usually and necessarily questions of fact for the jury.’” Kopacz 8 v. Banner Health, 245 Ariz. 97 , 100, 425 P.3d 586, 589 (Ct. App. 2018) (quoting Walk v. 9 Ring, 202 Ariz. 310, 316 , 44 P.3d 990, 996 (2002)). Although an injured person need not 10 know all the facts underlying their cause of action for the statute of limitations to begin to 11 run, “[w]hen the ‘fact of injury is known but the possibility of negligence is difficult to 12 discern,’ the cause of action may not accrue on the date the plaintiff learns of her injury.” — 13 — Id. (quoting Walk, 202 Ariz. at 314–15, 44 P.3d at 994–95). Thus, in addition to injury, 14 “[t]he plaintiff must at least possess a minimum requisite of knowledge sufficient to 15 identify that a wrong occurred.” Walk, 202 Ariz. at 316 , 44 P.3d at 996 (emphasis omitted). 16 Here, the medical examiner concluded that Z.O.’s cause of death was “unknown” 17 but with “no suspicious or unusual circumstances surrounding the death scene.” (Doc. 18 196-33 at 3, 21.) Plaintiff testified that she didn’t contemplate investigating Z.O.’s death 19 because she “wouldn’t know what to even investigate.” (Doc. 196-30 at 48.) It wasn’t 20 until April 2019, when a friend informed her of the recall, that Plaintiff decided to seek 21 legal advice. (Doc. 196-30 at 23.) Plaintiff has provided evidence that in the interim, 22 Defendants continued to market the RNPS as a “sleeper” despite knowledge that the RNPS 23 was connected with multiple infant deaths. See infra Part III.E; (Doc. 244-1 at 151–159.) 24 The governmental report on this issue, prepared for the House of Representatives by the 25 Committee on Oversight and Reform, concludes that “Fisher-Price was permitted to . . . 26 override attempts by CPSC to release important safety information about their product to 27 the public.” (Doc. 244-1 at 127.) It also states that “the public remained in the dark about 28 safety issues involving the product” while CPSC continued to investigate the matter. (Doc. - 22 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 23 of 35 1 244-1 at 149.) Thus, even though there was evidence that the RNPS was dangerous before 2 the recall in April 2019, there is a genuine issue of material fact as to when Plaintiff “should 3 have known” of the “wrong” committed. Anson v. Am. Motors Corp., 155 Ariz. 420, 425 , 4 427, 747 P.2d 581, 586, 588 (Ct. App. 1987) (holding that when plaintiffs “discovered” 5 their claims was an issue of fact because the defendant had allegedly concealed dangers 6 related to defects and continued to represent its product as safe even though “reports and 7 tests” revealed otherwise). Defendants’ Motion is DENIED on this ground. 8 B. Causation 9 Defendants’ sole argument that summary judgment should be granted as to 10 causation rests on the exclusion of Dr. Christensen. (Doc. 195 at 29–31.) As explained 11 above, Dr. Christensen’s testimony is admissible. See supra Part II.E. Moreover, in 12 addition to Dr. Christensen’s opinion that Z.O. asphyxiated, Dr. Singhose also opined that 13 the RNPS posed risks of rollover and suffocation, and Plaintiff and Mr. Olson maintain 14 that they found Z.O. face-down in the RNPS.11 These facts are sufficient for a reasonable 15 jury to conclude that Z.O.’s death was caused by her rolling over in the RNPS and, being 16 unable to correct, suffocating. Defendants’ Motion is DENIED on this ground. 17 C. Strict Products Liability and Negligence 18 Defendants next assert that Plaintiff has failed to establish a genuine issue of 19 material fact as to her strict products liability and negligence claims. (Doc. 195 at 31.) “To 20 establish a prima facie case of strict liability, the burden is upon the plaintiff to show the 21 following: the product is defective and unreasonably dangerous; the defective condition 22 existed at the time it left defendant’s control; and the defective condition is the proximate 23 cause of plaintiff’s injuries or property loss.”12 Rocky Mountain Fire & Cas. Co. v. 24 11 The evidence clearly conflicts as to whether Z.O. was found supine, prone, or semi-prone, but such conflicting evidence merely creates a genuine issue of material fact as to causation. (Doc. 25 196-25 at 6, 9, 11 (various police reports stating Z.O. was found “on her back,” “face down,” and “laying on her side”)); (Doc. 196-6 at 3 (Tempe Fire Department report noting Z.O. was found 26 “prone”)). 27 12 Defendants make no separate arguments for Plaintiff’s negligence claim. (Doc. 195 at 31.) Although negligence and strict products liability claims are distinct, see Dart v. Wiebe Mfg., Inc., — 28 — 147 Ariz. 242, 246 , 709 P.2d 876, 880 (1985), the Court does not find that they require separate analyses. As such, because Defendants’ Motion is denied as to strict products liability, it is also - 23 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 24 of 35 1 Biddulph Oldsmobile, 131 Ariz. 289, 292 , 640 P.2d 851, 854 (1982). “A defective 2 condition is a condition not contemplated by the ultimate consumer which will be 3 unreasonably dangerous to him.” Hohlenkamp, 134 Ariz. at 211 , 655 P.2d at 35 . “The 4 term ‘unreasonably dangerous’ means ‘dangerous to an extent beyond that which would 5 be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge 6 common to the community as to its characteristics.’” Id. (quoting Brady v. Melody Homes 7 Mfr., 121 Ariz. 253 , 589 P.2d 896 (Ct. App. 1979)). Plaintiff alleges that the RNPS was 8 defective due to manufacturing defects, design defects, and a lack of adequate warnings. 9 (Doc. 17 at 3–4.) Defendants move for summary judgment on each theory. 10 1. Manufacturing Defect 11 “A defectively manufactured product is one that is flawed as a result of something 12 that went wrong during the manufacturing process.” Gomulka v. Yavapai Mach. & Auto 13 Parts, Inc., 155 Ariz. 239 , 241–42, 745 P.2d 986 , 988–89 (Ct. App. 1987). As explained 14 by the Restatement, “[a] product . . . contains a manufacturing defect when the product 15 departs from its intended design even though all possible care was exercised in the 16 preparation and marketing of the product.” Restatement (Third) of Torts: Prod. Liab. § 2(a) 17 (Am. L. Inst. 1998). Plaintiff has not presented any evidence that Z.O.’s RNPS was mis18 manufactured. Instead, Plaintiff argues that the RNPS’s design was unreasonably 19 dangerous. (Doc. 205 at 23–24.) Defendants’ Motion is therefore GRANTED as to this 20 theory. 21 2. Design Defect 22 “A product is defective in design if the plaintiff demonstrates that the product failed 23 to perform as safely as an ordinary consumer would expect when used in an intended or 24 reasonably foreseeable manner.” Moorer v. Clayton Mfg. Corp., 128 Ariz. 565 , 567–68, — 25 — 627 P.2d 716 , 718–19 (Ct. App. 1981). Again, Defendants’ sole argument for summary 26 judgment on this theory is that Dr. Singhose’s testimony is inadmissible. (Doc. 195 at 32– 27 33.) Having found otherwise, a reasonable jury could find that the RNPS was defective 28 denied as to negligence. - 24 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 25 of 35 1 and unreasonably dangerous based on Dr. Singhose’s testimony. Defendants’ Motion is 2 DENIED. 3 3. Failure to Warn 4 “[A] claim of strict products liability may be based on ‘informational defects 5 encompassing instructions and warnings’ that render a product defective and unreasonably 6 dangerous.” Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 23 (2016) (quoting Gosewisch 7 v. Am. Honda Motor Co., 153 Ariz. 400, 403 (1987)). To establish proximate cause in a 8 failure-to-warn claim, the plaintiff “must submit evidence that the medical outcome would 9 have been different had the manufacturer provided different warnings . . . .” McBroom v. 10 Ethicon, Inc., No. CV-20-02127-PHX-DGC, 2021 WL 824411 , at *3 (D. Ariz. Mar. 4, 11 2021). “Ordinarily, what constitutes the proximate cause of any injury is a question of fact. 12 However, the jury is not entitled to make a decision absent a proper evidentiary 13 foundation.” D'Agnese v. Novartis Pharms. Corp., 952 F. Supp. 2d 880, 890 (D. Ariz. 14 2013). 15 Arizona adheres to a “heeding presumption” regarding proximate causation in strict 16 liability failure-to-warn claims. Golonka v. Gen. Motors Corp., 65 P.3d 956, 969 (Ariz. 17 Ct. App. 2003). The presumption “allow[s] the fact-finder to presume that the person 18 injured by product use would have heeded an adequate warning, if given.” Id. at 967 . Thus, 19 the burden of production (but not persuasion) shifts to the manufacturer to rebut the 20 presumption. Id. at 971 . A manufacturer rebuts this presumption by introducing evidence 21 that would permit reasonable minds to conclude that the injured party would not have 22 heeded an adequate warning. Id. Introducing such evidence destroys the presumption and 23 places the burden back on the plaintiff to produce evidence of proximate causation. Id. at 24 971–72. If the plaintiff cannot demonstrate that they would have heeded an adequate 25 warning, then their claim must fail because there is no conceivable casual connection 26 between the allegedly deficient warning and plaintiff's injury. See D'Agnese, 952 F. Supp. 27 2d at 891 (quoting Motus v. Pfizer Inc. (Roerig Div.), 358 F.3d 659, 661 (9th Cir. 2004)) 28 (“a product defect claim based on insufficient warnings cannot survive summary judgment - 25 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 26 of 35 1 if stronger warnings would not have altered the conduct . . . .”). 2 The Court begins with the presumption that Plaintiffs would have heeded an 3 adequate warning. Indeed, Plaintiff and Mr. Olson testified that they read and understood 4 the warnings on the RNPS. And Mr. Olson, who put Z.O. into the RNPS the night before 5 her death, testified that he took care to follow all warnings, which instructed parents to 6 discontinue use after the infant reached five months old, when “the infant beg[an] to push 7 up on hands and knees,” pull up, sit unassisted, or “has reached 25 lbs. (11.3 kg).” (Doc. 8 193-4 at 44, 52); (Doc. 196-5 at 2.) However, at the time of her death, Z.O. was eight 9 months old and could sit up unassisted (Doc. 196-30 at 28); (Doc. 196-31 at 38). Thus, 10 because Mr. Olson testifies that he understood the warnings, he also understood that he 11 was not complying with them. This is sufficient to permit reasonable minds to conclude 12 that Z.O.’s parents would not have heeded an adequate warning. Thus, the burden shifts 13 back to the Plaintiffs to establish proximate cause. 14 To support her claim, Plaintiff notes that the warning that said the sleeper should 15 not be used if a child could sit unassisted was a warning that pertained to a “Fall Hazard.” 16 It did not come under the general warnings, such as the warning to “ALWAYS use the 17 restraint system” or the warnings concerning the suffocation hazard. Thus, Plaintiff asserts 18 summary judgment on this claim is not appropriate because while Mr. Olson was 19 apparently prepared to run the risk of his child falling by using the sleeper, he would not 20 have been willing to incur the suffocation risk. Plaintiff also introduces Dr. Vredenburgh’s 21 testimony that the warning label listed the developmental milestones under a “fall hazard” 22 warning instead of a “suffocation” warning, which she opines was inadequate to warn 23 against a suffocation risk. Thus, Plaintiff asserts that had Mr. Olson been warned of the 24 suffocation and rollover risk, he would not have used the sleeper. 25 Of course, what risks Mr. Olson was willing to incur (or not incur) as to the health 26 of his child is an issue of fact for the jury. There is a further issue of fact as to whether Mr. 27 Olson appropriately used the restraint system. Yet, when reading the facts in Plaintiff’s 28 most favorable light, the Court finds that a reasonable jury might conclude that even though - 26 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 27 of 35 1 he consciously ignored the Fall Hazard, he would have complied with warnings that 2 sufficiently alerted him to a more serious kind of harm: suffocation. Accordingly, 3 Defendants’ Motion is DENIED. 4 D. Breach of Express Warranty 5 An action for breach of express warranty can arise under the U.C.C. or from 6 agreements between contracting parties. De Shazer v. Nat'l RV Holdings, Inc., 391 F. Supp. 7 2d 791, 794 (D. Ariz. 2005). In the amended complaint, Plaintiff says that her express 8 warranty claim arises from Defendant Fisher-Price’s warranties that “the Rock ‘n Play was 9 safe for infant sleeping.” (Doc. 17 at 5.) Defendant Fisher-Price says Plaintiff’s express 10 warranty claim must fail because “no affirmation of fact or promise can form the ‘basis of 11 the bargain’ in this case.” (Doc. 239 at 3.)13 12 However, the “basis of the bargain” requirement only applies to express warranty 13 claims brought under the U.C.C. Flory v. Silvercrest Indus., Inc., 129 Ariz. 574 , 581 14 (1981). Common-law express warranty claims have no such requirement, even when a 15 product is not obtained in a commercial transaction, e.g., when it is given as a gift. Flory, — 16 — 633 P.2d at 389 . See Rocky Mountain Fire & Cas. Co. v. Biddulph Oldsmobile, 131 Ariz. 17 289, 294 , 640 P.2d 851, 856 (1982) (quoting Seekings v. Jimmy GMC of Tucson, Inc., 131 18 Ariz. —-, 638 P.2d 210 (1981)) (noting that “privity between the manufacturer and the 19 consumer is not required” in a common-law breach of warranty claim); Eck v. Helene 20 Curtis Indus., Inc., 9 Ariz. App. 426, 429 (1969) (noting that express warranty claims can 21 arise through mere advertisements). Further, it does not matter whether Plaintiff or her 22 husband actually saw Fisher-Price’s warranties. To prevail on a common-law claim for 23 breach of express warranty, Plaintiff must only show that: (1) a warranty existed, (2) the 24 warrantor failed to perform pursuant to the express warranty, and (3) the plaintiff suffered 25 damages as a result. A.R.S. § 47-2313; see also Bates v. Dow Agrosciences LLC, 544 U.S. 26 431, 444 (2005) (“[A] cause of action on an express warranty asks only that a manufacturer — 27 — — 13 — Defendant Fisher-Price also raises a statute-of-limitations argument, but the Court does not 28 address it for the reasons discussed in Part III.A. - 27 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 28 of 35 1 make good on the contractual commitment that it voluntarily undertook by placing that 2 warranty on its product”) (emphasis added). 3 Here, the Plaintiff has sufficiently shown that a warranty existed. (Doc. 17 at 5–6.) 4 Additionally, Plaintiff offers a significant amount of expert testimony suggesting that 5 Defendants failed to perform pursuant to these warranties and that this failure caused her 6 to suffer damages. (Doc. 17 at 5–6.) A reasonable jury might find this evidence is 7 sufficient to establish Plaintiff’s claim.14 Accordingly, the Court DENIES Defendant’s 8 motion for summary judgment on Plaintiff’s breach of express warranty claims. 9 E. Punitive Damages 10 “Punitive damages are appropriately awarded in tort cases to punish the wrongdoer 11 and deter others from emulating the misconduct.” Hudgins v. Sw. Airlines, Co., 221 Ariz. 12 472, 486 (Ct. App. 2009). “Such damages, however, are awarded only in the most 13 egregious cases.” Id. “Thus, a jury may award punitive damages only if clear and 14 convincing evidence exists that the tortfeasor possessed an ‘evil mind’ while engaging in 15 aggravated and outrageous conduct” that proximately caused the plaintiff’s injuries. 16 Hudgins, 221 Ariz. at 486. Defendants rarely admit to this intent, so “[a]n ‘evil mind’ may 17 be shown by evidence that the defendant intended to injure the plaintiff or ‘consciously 18 pursued a course of conduct knowing that it created a substantial risk of significant harm 19 to others.’” Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 180 , 883 P.2d 407, 417 (Ct. App. 20 1993) (quoting Rawlings v. Apodeca, 151 Ariz. 149, 162 (1986)). In determining whether — 21 — — 14 — Still, a common law express warranty claim in such a setting seems to be indistinct from 22 Plaintiff’s products liability claim. Strict liability runs from a manufacturer to a plaintiff by implication of law––not through any agreement between the parties. See Bailey v. Montgomery 23 Ward & Co., 6 Ariz. App. 213, 217 (1967); Eck, 9 Ariz. App. at 428, 453 . Indeed, the elements for strict liability in Arizona are effectively identical to the elements of breach of express warranty. 24 See Rocky Mountain, 131 Ariz. at 292 (“To establish a prima facie case of strict liability, the burden is upon the plaintiff to show the following: the product is defective and unreasonably dangerous; 25 the defective condition existed at the time it left defendant's control; and the defective condition is the proximate cause of plaintiff's injuries or property loss”). With respect to Plaintiff’s claims 26 arising from Fisher-Price’s advertisements, “the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.” Nalbandian v. Byron Jackson Pumps, Inc., 97 27 Ariz. 280, 288 (1965) (Lockwood, J., concurring) (quoting Greenman v. Yuba Power Prod., Inc., 59 Cal. 2d 57, 63 (1963). Nevertheless, because the Arizona Supreme Court seems to recognize 28 the possibility of such a claim existing in a similar context, this claim survives the motion for summary judgment. - 28 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 29 of 35 1 a defendant acted with an evil mind, courts may consider: (1) the nature of the defendant’s 2 conduct, including the reprehensibility of the conduct; (2) the severity of the harm likely 3 to result; (3) the harm that has occurred; (4) [t]he duration of the misconduct; (5) the degree 4 of defendant’s awareness of the harm or risk of harm; and (6) any concealment of it. 5 Thompson v. Better-Bilt Aluminum Prod. Co., 171 Ariz. 550, 556 (1992) (quoting Hawkins 6 v. Allstate Ins. Co., 152 Ariz. 490, 497 (1987)). If a reasonable jury could find that a 7 defendant acted with an evil mind, a court may not grant a motion for summary judgment 8 on the issue of punitive damages. Quintero v. Rogers, 221 Ariz. 536, 541 (Ct. App. 2009). 9 Plaintiff offers four premises to show that Defendant Fisher-Price acted with an evil 10 mind: 11 (1) Defendant failed to adequately test the RNPS with regard to the well-known and foreseeable hazards like efficacy of 12 restraint belts and positional asphyxiation; (2) Defendant was alerted early on that infants were able to get — 13 — out of position in the RNPS and sustained serious injuries; 14 (3) Defendant failed to undertake any investigation or redesign of the RNPS as a result of its knowledge of the significant — 15 — harm the RNPS posed; and 16 (4) Defendant continued to market the RNPS as safe for overnight sleep. — 17 — 18 (Doc. 205 at 31–32) (formatted for clarity). 19 Plaintiff notes that “Ms. Courkamp’s claim for punitive damages is based on the 20 same four premises” as the plaintiff in Hess v. Bumbo., No. CV 13-944 TUC DCB, 2014 21 WL 12527216 , at *8 (D. Ariz. Sept. 11, 2014); (Doc. 205 at 31.) Indeed, in that case, the 22 parents of a child who was injured in a defective car seat advanced four essentially identical 23 premises to show that the car seat manufacturer acted with an evil mind. Id. On that basis, 24 the court denied the defendant manufacturer’s motion for summary judgment on punitive 25 damages. Id. at *10. However, Hess is not dispositive because the opinion does not suggest 26 that the car seat manufacturer offered direct evidence to rebut the plaintiff’s four premises. 27 Id. Here, Defendant Fisher-Price has directly contested Plaintiff’s first two premises. 28 Thus, the Court will consider those arguments and Defendant’s alternative suggestion that - 29 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 30 of 35 1 punitive damages should be unavailable because the company complied with industry 2 standards and relevant regulations. 3 1. Premise One: Failure to Adequately Test Restraint Belt and 4 Positional Asphyxiation 5 In response to Plaintiff’s first premise, Defendant Fisher-Price argues that the 6 RNPS’s breathability was considered by a team of experts, the product was extensively 7 tested, and included a built-in restraint system. (Doc. 196-42 at 10–11.) These facts are 8 amply supported by both parties’ Statement of Facts. (Doc. 196-1 at 21); (Doc. 196-18 at 9 237); (196-41 at 12.); (Doc. 206 at 20). And, in considering those facts in a light most 10 favorable to Plaintiff, the Court finds that a reasonable jury could not conclude that Fisher11 Price acted with an evil mind because of allegedly inadequate testing. 12 Defendant Fisher-Price thoroughly tested the RNPS according to then-prevailing 13 industry standards and on their employee’s own children. They carefully considered the 14 RNPS’s breathability and restraint system with a team of qualified internal and external 15 experts and Fisher-Price’s Safety Committee reviewed those findings. Nothing in the 16 record suggests that the duration of this testing was rushed or otherwise imprudent, 17 although Plaintiff does argue that the initial testing was sub-optimal because no medical 18 doctors were involved in the testing process. (Doc. 244-1 at 126, 135, 282.) However, a 19 defendant does not act with an evil mind (or even negligence) simply because they did not 20 employ the best possible means of avoiding harm. Thus, even accepting that Fisher-Price’s 21 testing might have been improved by physician involvement, the nature of its conduct can 22 only be described as responsible given the potential harm that would arise from inadequate 23 testing, i.e., that infants might suffer serious injuries (or even death) while strapped in the 24 company’s new product. Thus, no reasonable jury could conclude that Plaintiff’s first 25 premise supports an award for punitive damages. 26 2. Premise Two: Defendant’s Knowledge of Other Incidents 27 Defendant argues, as a threshold matter, that Plaintiff’s second premise fails because 28 only incidents from before Z.O.’s death can be considered in the punitive damage’s inquiry. - 30 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 31 of 35 1 (Doc. 239 at 13.) Preceding from this assumption, Defendant Fisher-Price then notes that 2 the company carefully monitored every pre-2014 incident involving the RNPS and this 3 internal investigation and reporting “did not identify any causal relation between the 4 product and the very small number of reported incidents, particularly relative to the large 5 number of products sold . . . and given the tragic prevalence of SIDS.” (Doc. 239 at 13.) 6 In their Reply, Defendant cites no authority to support their assertion that only post7 2014 incidents can support a claim for punitive damages and, thus, cannot affect whether 8 Fisher-Price acted with an evil mind. The reason Defendant cites no authority is simple: 9 none exists. When assessing the availability of punitive damages, Arizona courts routinely 10 consider defendants’ conduct both before and after injury causing incidents. “Under 11 Arizona law, post-accident conduct is admissible on the issue of punitive damages if the 12 conduct has a reasonable relationship to the state of mind of the tortfeasor at the time of 13 the accident.” Forquer v. Pinal County, 526 P.3d 1064 , 1068 (Ariz. 1974); see also 14 Readenour v. Marion Power Shovel, a Div. of Dresser Indus., Inc., 149 Ariz. 442, 448 , 719 15 P.2d 1058 , 1064 (1986) (noting that evidence of defendants sending warnings to owners of 16 defective shovels after an incident that resulted in injury “would have been admissible for 17 many purposes,” including plaintiff’s punitive damages argument); Coulbourn v. Air & 18 Liquid Sys. Corp., No. CV-13-08141-PCT-SRB, 2016 WL 5921255 , at *3 (D. Ariz. Jan. 19 6, 2016) (holding that relevant evidence of post-incident conduct can be used to determine 20 whether defendant acted “with conscious disregard of a substantial risk of harm”); Hess v. 21 Bumbo Int'l Tr., No. CV 13-944 TUC DCB, 2014 WL 12527216 , at *9 (D. Ariz. Sept. 11, 22 2014) (considering facts surrounding a 2012 car-seat recall in punitive damages analysis 23 when the plaintiff “was injured after the 2007 recall and before the 2012 recall.”). 24 Next, Plaintiff has presented evidence that Fisher-Price received forty-seven 25 incident reports involving the RNPS before Z.O.’s death in 2014, including reports that 26 infants had “[sunk] down,” rolled “to the side,” and “rolled over” in the product. (Doc. 27 244-5 at 68.) And according to admissible portions of Dr. Singhose’s testimony, in the 28 years after Z.O.’s death, the company received hundreds of consumer reports involving - 31 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 32 of 35 1 incidents with the RNPS. (Doc. 196-41 at 78.) Additionally, Plaintiff presents evidence 2 that Defendant Fisher-Price received reports that the RNPS was possibly unsafe from at 3 least four regulatory bodies before its 2019 Recall. (Doc. 244-5 at 2–3, 25, 64–65.) For 4 example, three years before Z.O.’s death, the Queensland Government’s Office of Fair 5 Trading sent a letter to Fisher-Price that specifically referenced the risk of death by 6 suffocation.15 (Doc. 244-5 at 3.) In the face of this evidence, Defendants reiterate that 7 their monitoring did not suggest a causal connection between infant deaths and the RNPS. 8 (Doc. 239 at 13.) 9 In sum, the evidence suggests that Fisher-Price received multiple reports about 10 incidents in the product before the death of Plaintiff’s child. It analyzed these reports and 11 ultimately acted upon the conclusions it drew; specifically, by continuing to market the 12 RNPS until its 2019 Recall. (Doc. 195 at 15.) And while the 2019 recall was voluntary, 13 Defendants introduce evidence that Fisher-Price only pulled the RNPS off the market after 14 considerable pressure from outside groups. For example, Defendant’s Exhibit B notes that 15 “inclined sleepers came under additional scrutiny in 2019 after a series of deaths were 16 reported to the CPSC and additional deaths were uncovered in a Consumer Reports article.” 17 (Doc. 195-2 at 12.) Exhibit B then states that after this reporting, the AAP issued a press 18 release in April 2019, “calling for an immediate recall of the products, specifically 19 mentioning the Fisher-Price Rock ‘n’ Play Sleeper, which was tied to 32 sleep-related 20 deaths.” (Doc. 195-2 at 12.) Fisher-Price recalled the product shortly thereafter. 21 Considering this evidence in the light most favorable to the Plaintiff, the Court finds 22 that there are sufficient facts upon which a reasonable jury could find that Defendant 23 Fisher-Price “consciously pursued a course of conduct knowing that it created a substantial 24 risk of significant harm to others.” Rawlings, 151 Ariz. at 162 . As Defendant Fisher-Price 25 notes, the company carefully monitored incident reports from the product’s inception. And 26 nothing suggests that the company did not have access to the information underpinning the 27 15 Defendants object to this evidence for the purpose of proving a design defect. (Doc. 239 at 9– 10.) The Court considers it only as to Defendants’ state of mind and, thus, declines to rule on 28 Defendants’ objections at this time. - 32 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 33 of 35 1 Consumer Reports article and the concerns that prompted the CPSC and AAP to demand 2 the 2019 Recall. These two facts, when construed in a light most favorable to the Plaintiff, 3 are sufficient to support her punitive damages claim. 4 Upon considering the RNPS incident reports, industry watch dogs, physicians, and 5 regulatory bodies saw a dangerous product that posed serious harm to infants. So, they 6 called for a unified course of conduct: recall the RNPS. Upon considering the same (if not 7 more comprehensive) information, Fisher-Price chose a different course of conduct and 8 continued to profit from a product that it knew was harming children like Z.O. The reports 9 animating both courses of conduct were the same, however, a reasonable jury might 10 conclude that the entities’ motivations were markedly different; namely, that the RNPS 11 “generated at least $200 million in revenue” for Fisher-Price. See Demetrulias v. Wal12 Mart Stores Inc., 917 F. Supp. 2d 993, 1011 (D. Ariz. 2013) (noting that the evil-mind 13 inquiry in Arizona “focuses on the motives of the defendant and how those motives 14 accentuate the risk of harm.”); (Doc. 205 at 12.) 15 3. Defendant’s Other Arguments 16 Nevertheless, Defendant Fisher-Price attempts to defeat Plaintiff’s claim for 17 punitive damages by arguing that their compliance with federal regulations or industry 18 standards should be considered when assessing the availability of punitive damages. 19 Indeed, some courts have considered “compliance with both federal regulations and 20 industry practices is some evidence of due care.” Richards v. Michelin Tire Corp., 21 F.3d 21 1048, 1059 (11th Cir. 1994). See also Mims v. Wright Med. Tech., Inc., 2012 WL 1681810 , 22 at *5 (N.D. Ga. 2012) (noting that punitive damages are “typically not appropriate where 23 the manufacturer has complied with regulatory standards.”). In Arizona, courts have 24 considered manufacturers’ compliance with industry and regulatory standards when 25 weighing the availability of punitive damages, but these considerations are not dispositive. 26 See, e.g., Leavey v. UNUM/Provident Corp., No. CV-02-2281-PHX-SMM, 2005 WL 27 8165150, at *14 (D. Ariz. Mar. 31, 2005); Hale v. Norcold Inc., No. CV-18-03597-PHX28 MTL, 2020 WL 1911214 , at *3 (D. Ariz. Apr. 20, 2020); Hess v. Bumbo., No. CV 13-944 - 33 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 34 of 35 1 TUC DCB, 2014 WL 12527216 , at *8 (D. Ariz. Sept. 11, 2014). However, even if they 2 were, it would not be entirely helpful to Fisher-Price. 3 First, there have never been federal regulations concerning incline sleepers. In fact, 4 Plaintiff has presented evidence that Defendant’s publicly fought a regulation proposed by 5 CPSC that would have limited infant sleeping products to twenty degrees “maximum 6 rock/swing angle” and five degrees “for the mattress rest angle.” Safety Standard for 7 Bassinets and Cradles, 75 Fed. Reg. 22303 , 22306 (Apr. 28, 2010); (Doc. 244-1 at 247– 8 54.) Additionally, although Fisher-Price introduced evidence that it has adhered to 9 voluntary industry standards like the ASTM standard, Plaintiff has shown that, in 2011 the 10 company knew the RNPS did not comply with the prevailing AAP recommendation that 11 infants sleep supine on a flat surface. (Doc. 196-17 at 5); (Doc. 244-1 at 106, 113); (Doc. 12 244-5 at 71 (describing an email Fisher-Price received from Dr. Roy Benaroch, a 13 pediatrician, about the RNPS’s failure to comply with AAP standards, including his 14 observation that the product was “unsafe” and “inconsistent with the safe sleeping 15 guidelines.”).) At best, the evidence suggests that Defendant Fisher-Price was merely 16 semi-compliant with industry standards. Accordingly, the Court DENIES Defendant’s 17 Motion for Summary Judgment on Plaintiff’s punitive damages claims. 18 CONCLUSION 19 Plaintiff’s request to supplement the summary judgment record is denied because 20 she has not shown diligence. Moreover, after consideration of Defendants’ four Motions 21 to Exclude, the Court finds that Dr. Vredenburgh’s and Dr. Singhose’s opinions on 22 Defendants’ failure to test; Dr. Vredenburgh’s opinion on the location of the RNPS’s 23 warnings; and Dr. Christensen’s opinions on the AAP standards are improper under 24 Daubert. The remaining Motions to Exclude are denied. Plaintiff has failed to establish a 25 genuine issue of material fact as to privity, and as such her claim for breach of express 26 warranty is dismissed. Likewise, Plaintiff’s claim for manufacturing defect is dismissed. 27 Defendants’ Motion for Summary Judgment is denied in all other respects. 28 IT IS HEREBY ORDERED that Defendants’ Motion to Strike the June 7, 2021, - 34 - Case 2:19-cv-02689-GMS Document 260 Filed 09/23/22 Page 35 of 35 1 Supplemental Expert Report and July 16, 2021, Rebuttal Report of Alison Vredenburgh, 2 PhD, CPE (Doc. 154) is GRANTED in part and DENIED in part. It is granted as to Dr. 3 Vredenburgh’s opinions regarding Defendants’ failure to test the RNPS and as to Dr. 4 Vredenburgh’s supplement, but it is denied on all other grounds. 5 IT IS FURTHER ORDERED that Defendants’ Motion to Exclude Plaintiff’s 6 Expert, Michael Goodstein, M.D. (Doc. 191) is DENIED without prejudice. 7 IT IS FURTHER ORDERED that Defendants’ Motion to Exclude the Opinions 8 of William Singhose, Ph.D. (Doc. 192) is GRANTED in part and DENIED in part. Dr. 9 Singhose’s opinions regarding Defendants’ failure to test the RNPS are excluded. The 10 Motion is denied without prejudice as to all other matters. 11 IT IS FURTHER ORDERED that Defendants’ Motion to Exclude Plaintiff’s 12 Expert Alison Vredenburgh, Ph.D. (Doc. 193) is GRANTED in part and DENIED in part. 13 It is granted as to Dr. Vredenburgh’s opinions regarding Defendants’ failure to test the 14 RNPS and the deficient location of the warnings, but it is denied on all other grounds. 15 IT IS FURTHER ORDERED that Defendants’ Motion to Exclude the Opinions 16 of Erik Christensen, M.D. (Doc. 194) is GRANTED in part and DENIED in part. Dr. 17 Christensen may not opine on the AAP standards but may opine as to the other opinions 18 contained in his initial report. 19 IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment 20 (Doc. 195) is GRANTED in part and DENIED in part. Defendants’ Motion is granted as 21 to Plaintiff’s claims for manufacturing defect. It is denied on all other grounds. 22 IT IS FURTHER ORDERED that Plaintiff’s Motion to Supplement Record in 23 Support of Opposition to Motion for Summary Judgment (Doc. 235) is DENIED. 24 Dated this 23rd day of September, 2022. — 25 — — 26 — — 27 — — 28 — - 35 -