Bertola v. Fisher-Price

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SARAH ANN BERTOLA and )
DALLAS BERTOLA, )
Co-Personal Representatives of the ) C.A. No. N21C-01-115 FJJ
Estate of A.M.B., Deceased )
and in their own right )
Plaintiffs, )
)
v. )
)
FISHER-PRICE, INC., and )
MATTEL, INC., )
Defendants. )

Submitted: April 11, 2024
Decided: April 21, 2025

OPINION AND ORDER

On Defendants’ Motion for Summary Judgment
DENIED IN PART AND GRANTED IN PART.

Robert J. Leoni, Esquire, Shelsby & Leoni, Newark, Delaware and Alan M.
Feldman, Daniel J. Mann, and Edward S. Goldis, Esquires, (Pro Hac Vice) Feldman
Shepherd Wohlgelernter Tanner Weinstock & Dodig, LLP, Philadelphia,
Pennsylvania, Attorneys for Plaintiffs.

Jennifer C. Wasson, Esquire, and Ryan D. Kingshill, Esquire, Potter Anderson &
Corroon, LLP, Wilmington, Delaware, and Amy Furness, Esquire, (Pro Hac Vice)
Carlton Fields, P.A., Miami, Florida and Robert Shannon, Esquire, (Pro Hac Vice
Carlton Fields, P.A., Atlanta, Georgia, Attorneys for Defendants.

Jones, J.
INTRODUCTION

Plaintiffs, Sarah Ann Bertola and Dallas Bertola on behalf of themselves and

as representatives of A.M.B’s estate (“Plaintiffs”), bring product liability claims

against Defendants, Fisher-Price and Mattel, Inc (“Defendants”), for the death of

their infant child, A.M.B. Plaintiffs allege A.M.B. asphyxiated and suffocated while

sleeping in Defendants’ Rock ‘N Play Sleeper (hereinafter “RnP”). Plaintiffs claim

product deficiencies and improper marketing and sale of the RnP as a safe product

for an infant to sleep in unattended caused A.M.B’s death. Defendants bring the

instant Motion for Summary Judgment asking inter alia to find Plaintiffs’ claims

lack causation.

FACTS AND PROCEDURAL HISTORY

A. The Rock ‘N Play Sleeper (“RnP”)

The RnP was sold as “an inclined sleeping product” intended for day or

overnight sleep “in which infants are placed supine (on their backs) at less than a 30-

degree angle from the horizontal.”1 The product consists of a “free-standing metal

rocking frame, an attached rigid plastic backing, a removable seat pad with fabric

cover, and a three-point belt restraint system.”2 The restraint system “secured a strap

between the infant’s legs and across the torso.”3

1
Docket Item (“D.I.”) 164, Exhibit (“Ex.”) B, Aff. of Jennifer Mussell, 1/30/24.
2
Id.
3
Id.

2
When sold at retail, the RnP came in a box, unassembled, and included an

instruction manual with product safety warnings.4 Warnings on a label attached to

the RnP state under “FALL HAZARD” to “Always use restraint system,” and under

SUFFOCATION HAZARD to “Only use the pad provided by Fisher-Price” and

“Never place extra padding under or beside infant.”5

B. The Incident

Sarah Bertola, A.M.B.’s mother, received her RnP as a baby shower gift from

her sisters.6 In the evening of January 4, 2017, Ms. Bertola put A.M.B. to sleep in

the RnP on her back and swaddled in a blanket.7 The restraint system was not being

used due to A.M.B.’s swaddle hindering it.8 The RnP was located in A.M.B.’s

nursery.9 Ms. Bertola then went to her bedroom to watch TV with her husband,

A.M.B.’s father, Dallas Bertola.10 Around 2:00 in the morning, Ms. Bertola checked

on A.M.B, who appeared to be fine, and placed a blanket around her waist. 11 At

10:10 in the morning on January 5, 2017, Ms. Bertola woke up concerned she had

not heard A.M.B.12 When she went to check on A.M.B., she found her “slumped

down in the RnP with her head tilted downwards to the right and her chin on her

4
D.I. 164, Ex. C, Aff. of Johanna D. Roblee, 2/19/24.
5
Id., Ex. D.
6
D.I. 164 p. 8.
7
D.I. 194 p. 12.
8
D.I. 164 p. 9.
9
Id.
10
Id.
11
D.I. 194 p. 12-13.
12
Id. at 13.

3
shoulder.”13 The blanket Ms. Bertola had placed on A.M.B. in the middle of the

night was now “covering A.M.B.’s face up to the pacifier that was in her mouth.”14

Ms. Bertola yelled out to her husband in their bedroom and attempted CPR.15

Emergency authorities were called to the scene but could not revive A.M.B.16 The

infant’s death was ruled by the autopsy report as a “Sudden Unexplained Infant

Death” with a cause that “Could Not Be Determined.”17

C. Procedural History

Defendant filed the instant Motion for Summary on February 1, 2024.18 Full

briefing has concluded with Plaintiffs filing their Answering Brief in Opposition on

March 11, 202419 and Defendants filing their Reply Brief on April 11, 2024.20 The

larger than usual period of time between briefing and this opinion is due to

continuances in this case and issues in this litigation generally.

CHOICE OF LAW

The accident initiating this case occurred in Utah. The parties agree that Utah

substantive law applies to this case,21 and this Court will so apply it. The general

13
Id., Ex. BB, Sarah Bertola Dep. at 256-57.
14
Id., Ex. BB at 191-92.
15
Id.
16
Id.
17
D.I. 164 p. 1, Ex. A at 1.
18
D.I. 164.
19
D.I. 194.
20
D.I. 213.
21
See D.I. 145, Stipulation and Order on Choice of Law.

4
rule is to apply procedural law of the forum.22 In the instant case, the forum is

Delaware; therefore, Delaware procedural law is applicable.

STANDARD OF REVIEW

Superior Court Civil Rule 56(c) states a party seeking summary judgment

must show “there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”23 A genuine issue of material fact

is one that “may reasonably be resolved in favor of either party.”24 The court views

the evidence provided “in a light most favorable to the non-moving party.”25 The

initial burden is on the moving party to show there are no genuine issues of material

fact.26 The burden then shifts to the non-moving party to show there is at least one

material issue of fact in dispute.27 The court must consider “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

affidavits, if any,” in determining whether there is a genuine issue as to any material

fact, and the court must “accept all undisputed factual assertions and accept the

nonmoving party’s version of any disputed facts.”28 However, any factual inferences

made in favor of the non-moving party must be reasonable.29

22
Chaplake Holdings, Ltd. v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001).
23
Del. Super. Ct. Civ. R. 56(c).
24
Saunders v. Lightwave Logic, Inc., 2024 WL 4512227, at *6 (Del. Super. Oct. 17, 2024).
25
Gibson v. Metro. Grp. Prop. And Cas. Ins. Co., 2017 WL 5606714, at *2 (Del. Super. Nov. 15, 2017).
26
Id.
27
Id.
28
Coker v. Tenney-Andrews, 2016 WL 6659500, at *2 (Del. Super. Nov. 10, 2016).
29
Smith v. Haldeman, 2012 WL 3611895, at *1 (Del. Super. Aug. 21, 2012).

5
ANALYSIS

I. There is a Genuine Dispute of Material Fact as to Whether the Design of
the Rock ‘N Play Sleeper Was the Proximate Cause of A.M.B.’s Death.

The Utah Product Liability Act (“UPLA”) governs “any action for damages

for personal injury, death, or property damage allegedly caused by a defect in a

product.”30 A product liability claim embraces “all actions seeking money damages

for injury to people or property resulting from defective products.”31 The damage

pled by the party bringing the product liability claim must have been caused by the

purportedly defective product.32

Directing the Court to the arguments discussed in their Daubert motions,33

Defendants argue Plaintiffs’ expert testimony concerning the RnP’s design is

speculative and conjectural. Defendants ask the Court to grant summary judgment

on this basis because without reliable expert testimony on causation, the Plaintiffs

cannot establish a claim. 34 Plaintiffs contend their experts’ opinions are based on

ample scientific support and point the Court to the arguments made in their responses

to Defendants’ Daubert motions.35

30
Utah Code § 78B-6-703(1).
31
Utah Local Gov’t Tr. v. Wheeler Mach. Co., 199 P.3d 949, 951 (Utah 2008).
32
Id. at 952.
33
See Defendants’ Motion to Exclude Plaintiffs’ Expert, D.I. 146 (Darlene Calhoun); 148 (Wayne Ross); 152
(Dennis Rosen); 167 (Benjamin Hoffman); 168 (Erin Mannen).
34
D.I. 164 p. 14.
35
See Plaintiff’s Response in Opposition to Defendant’s Motion to Exclude Plaintiffs’ Expert D.I. 189 (Darlene
Calhoun),190 (Dennis Rosen), 191 (Wayne Ross), 193 (Erin Mannen), 195 (Benjamin Hoffman).

6
In a decision issued contemporaneously with this issue, this Court has denied

Defendants’ Motions to Exclude the Testimony of various Plaintiffs’ experts who

establish causation.36

Based on these decisions, the Court finds Plaintiffs provided sufficient,

reliable expert testimony to provide a legitimate factual question of causation to a

jury. Therefore, Defendant’s Motion for Summary Judgment as to causation is

DENIED.

II. Plaintiffs Cannot Raise a Negligent Infliction of Emotional Distress
(“NIED”) Claim Because They Were Not in the Zone of Danger and Utah’s
Limited, Special Duty Rule is Inapplicable.

Under a zone of danger theory, the tort of negligent infliction of emotional

distress (“NIED”) only allows recovery for third parties put in “actual peril” from

the defendant’s breach of duty.37 The zone of danger rule allows a “plaintiff who

was within the zone of danger to recover for emotional distress caused by fear for

personal safety even though the plaintiff suffered no physical harm as a result of the

defendant’s breach of duty.”38 In Hansen v. Sea Ray Boats, the Utah courts

“unequivocally adopted the zone of danger rule” and “rejected any approach that

36
See Opinion and Order on Defendants’ Evidentiary Motions.
37
Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 239-40 (Utah 1992).
38
Id. at 240.

7
allows plaintiffs who are not within the zone of danger to recover for emotional

distress caused by witnessing another’s injury.”39

Applying the zone of danger rule, Defendants argue Plaintiffs have no

negligent infliction of emotional distress claim because it is undisputed that Plaintiffs

were asleep in another room when A.M.B. passed nor did Plaintiffs state they

personally felt in danger.40 Plaintiffs direct the Court to the Utah Supreme Court

decision in Mower v. Baird to argue that Plaintiffs may recover under negligent

infliction of emotional distress without being in the zone of danger.41

In Mower, the Utah Supreme Court laid out a two-part analysis to determine

whether a class of defendants owe a limited emotional distress duty to a class of

plaintiffs.42 The analysis first asks “does the defendant owe a traditional duty of

reasonable care to the plaintiffs?”43 To answer this question, the Court refers to the

traditional duty factors discussed in B.R. ex rel. Jeffs v. West.44 These factors include:

(1) whether the defendant’s allegedly tortious conduct consists of an
affirmative act or merely an omission; (2) the legal relationship of the
parties; (3) the foreseeability or likelihood of injury; (4) public policy

39
Boucher By and Through Boucher v. Dixie Med. Ctr., a Div. of IHC Hosps., Inc., 850 P.2d 1179, 1182 (Utah 1992)
(citing Hansen, 830 P.2d at 241).
40
D.I. 164 p.17.
41
D.I. 194 p. 16-20.
42
422 P.3d 837, 857 (Utah 2018). The Court bases, but does not fully adopt, this newfound, limited exception on
the Restatement (Third) of Torts “recogniz[ing] limited situations where defendants will also owe the plaintiff a
limited duty to act with reasonable care when placing one at risk of serious emotional harm” in scenarios where the
party attempting to recover was not within the zone of danger. Id. at 850, 857 (quoting Restatement (Third) of Torts:
Liability for Physical & Emotional Harm § 47 cmt. g (Am. Law Inst. 2012)).
43
Mower, 422 P.3d at 856.
44
Id. (citing B.R. ex rel. Jeffs v. West, 275 P.3d 228 (Utah 2012)).

8
as to which party can best bear the loss occasioned by the injury; and
(5) other general policy considerations.45

The first factor considers whether the alleged conduct was a misfeasance or a

nonfeasance. “Acts of misfeasance, or active misconduct working positive injury to

others, typically carry a duty of care.”46 “[N]onfeasance – passive intuition, a failure

to take positive steps to benefit others, or to protect them from harm not create by

any wrongful act of the defendant – only gives rise to a duty when a special legal

relationship exists.”47 Therefore, a plaintiff is not required to show a special legal

relationship when a plaintiff alleges a defendant partook in misfeasance; however, if

a plaintiff alleges a defendant conducted nonfeasance, then existence of a special

legal relationship is required.

Plaintiffs allege Defendants acted in misfeasance as well as nonfeasance by

creating, marketing, and selling a “dangerous infant product” and failing to warn

about potential hazards with the product.48 Plaintiffs argue Defendants’ deprivation

of “normal opportunities for self-protection” by marketing a safe product formed a

special legal relationship between the parties.49 However, Plaintiffs do not need to

establish the relationship between the parties because Plaintiffs allege affirmative

acts of misfeasance by Defendants.

45
Mower, 422 P.3d at 843 (citing Jeffs, 275 P.3d 228).
46
Mower, 422 P.3d at 843.
47
Id.
48
D.I. 194 p. 18.
49
Id.

9
The foreseeability analysis “focuses on the general relationship between the

alleged tortfeasor and the victim and the general foreseeability of the harm rather

than the specifics of the alleged tortious conduct such as the specific mechanism of

the harm.”50 The question this factor calls for is “whether a category of cases

includes individual cases in which the likelihood of some type of harm is sufficiently

high that a reasonable person could anticipate a general risk of injury to others.”51

Plaintiffs urge the foreseeability in this case was known by the Defendants

because Defendants knew of and ignored the AAP Safe Sleep Guidelines as well as

other fatalities linked to the RnP.52 Even without knowledge of potential RnP safety

deficiencies, the manufacturer of infant products can reasonably anticipate harm to

an infant using their product creates a foreseeable risk to the parents.53

The fourth factor centers on “whether the defendant is best situated to take

reasonable precautions to avoid injury.”54 Weighing Defendants’ role as designer

and manufacturer of the product versus Plaintiffs’ use of the product as a consumer,

Defendants have the superior role in ensuring the product is safe.

50
Mower, 422 P.3d at 844 (quoting Jeffs, 275 P.3d at 235).
51
Mower, 422 P.3d at 844 (quoting Jeffs, 275 P.3d at 235-36).
52
D.I. 194 p. 19.
53
See Mower, 422 P.3d at 844-45 (finding the injury to nonpatient, parents of a child harmed by a rejected therapy
technique is foreseeable).
54
Mower, 422 P.3d at 845 (quoting Jeffs, 275 P.3d at 237).

10
Considering these factors, the Court finds that, under the Jeffs factors,

Defendants owed a traditional duty to Plaintiffs. However, the analysis does not end

there.

The second inquiry requires the Court to consider whether “the relationship,

activity, or undertaking [is] of the type that warrants a special, limited duty to refrain

from causing severe emotional distress?”55 This step requires a three-prong analysis

asking:

(1) does the relationship, activity, or undertaking “necessarily implicate
the plaintiffs’ emotional well-being?”; (2) is there “an especially likely
risk” “that the defendant’s negligence in the course of performing
obligations pursuant to such relationship[, activity,] or undertaking will
result in [severe] emotional distress?”; and (3) do general public policy
considerations warrant rejecting a limited emotional distress duty
where prongs one and two would otherwise find one to exist?56

To pass muster with the first prong, the relationship must be one “fraught with the

risk of emotional harm” to the plaintiff.57 “This prong can be met only in those very

limited ‘situations where the emotional well-being of others is at the core of, or is

necessarily implicated by, the [relationship, activity, or] undertaking.”58 This

analysis is meant to be on a “case-by-case basis” and requires meeting a “high

threshold . . . met in very few instances.”59

55
Id. at 856.
56
Id. at 856-57 (quoting Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810 (D.C. 2011)).
57
Mower, 422 P.3d at 857.
58
Id. (quoting Hedgepeth, 22 A.3d at 814).
59
A.W. v. Marelli, 543 P.3d 786, 792 (Utah Ct. App. 2024).

11
In A.W. v. Marelli, the Utah Court of Appeals found an NIED claim could not

extend to a mother’s continued, unwanted communications with her estranged

daughter.60 The Court acknowledged that these communications were a result of the

daughter’s suffered sexual abuse by her stepfather but concluded that the core issue

of the claim was the mother’s attempted reconciliation with her daughter. 61 In

making this decision, the Court recognized the Restatement (Third) of Torts’ list of

NIED claim example including “mishandling of a corpse, an erroneous

announcement of a death or illness, a physician negligently diagnosing a patient with

a serious disease, a hospital losing a newborn infant, an employer mistreating an

employee, and a spouse mentally abusing the other spouse.”62 Considering the

Restatement and Mower’s limited application, the Court declined to expand NIED

to cover the daughter’s claim.63

In view of this case law, the Court does not find that Mower’s limited use

applicable to the instant case. Plaintiffs’ claim fails the first prong of the second part

of the analysis. The Plaintiffs’ emotional well-being is not at the core of their claim

in the way it is in the narrow cases in the Restatement and Mower.

60
Id. at 793.
61
Id.
62
Id. (quoting Restatement (Third) of Torts § 47 cmt. f).
63
A.W., 543 P.3d at 793.

12
Because parties do not dispute Plaintiffs were not within the zone of danger,

the Court GRANTS Defendant’s partial summary judgment for Plaintiff’s NIED

claim.

III. Plaintiffs Cannot Recover Pain and Suffering, Emotional Distress, and
Mental Anguish Damages Under a Survival or Wrongful Death Action.

Because the Court denied Plaintiffs’ NIED claim, Plaintiffs cannot recover in

their personal capacities for pain and suffering, emotional distress, or mental anguish

under that claim. However, Plaintiffs also bring wrongful death and survival actions

in their representative capacities.64

A survival statute “provides for the continuance of an injured person’s cause

of action in order to preserve any interests which have accrued in the recovery of

damages to his estate should he die prior to the resolution of the suit.”65 Under Utah

law, heirs are limited in what they can recover under the survival statute. “Heirs

may recover on behalf of the decedent certain special damages but may not recover

for the pain and suffering of the decedent and similar components of recovery falling

within the category of general damages.”66 These special damages are limited to

those “sustained by the decedent during his lifetime that did not require the

testimony of the decedent to ascertain.”67 Further, the survival statute does not allow

64
D.I. 1 ¶¶ 156-65.
65
Meeks v. Peng, 545 P.3d 226, 337 (Utah 2024) (quoting Est. of Berkemeir ex rel. Nielsen v. Hartford Ins. Co. of the
Midwest, 67 P.3d 1012, aff’d 106 P.3d 700 (Utah 2003)).
66
Bybee v. Abdulla, 189 P.3d 40, 48-49 (Utah 2008).
67
Id. at 48.

13
heirs to recover damages stemming from injuries they faced because of the

decedent’s death.68

Plaintiffs cite to Pinney v. Carrera69 to support their argument that they can

recover general damages under the survivor statute.70 Noted in Meeks v. Peng, the

survivor action in Pinney was brought by a surviving tort victim, and the Court

evaluates the comparison of “life without negligence to life with negligence.”71 The

instant case, as was the case in Meeks, considers “life versus death to assess general

damages in a survival action.”72

“[T]he general rule is that the estate can only recover for damages incurred

between the time of the negligence and the time of death.”73 Therefore, Plaintiffs

may recover under a survival action for general damages, including pain and

suffering, prior to A.M.B.’s death but cannot recover based on Plaintiffs’ personal

pain and suffering, mental anguish, or emotional distress.

“Wrongful death claims acknowledge that the survivors ‘suffer a direct loss

to themselves’ when their loved ones die from a wrongful act. Accordingly, the

damages recovered in wrongful death actions are meant to compensate the harm

68
Id. at 49.
69
469 P.3d 970 (Utah 2020).
70
D.I. 194 p. 21.
71
Meeks, 545 P.3d at 239. See Pinney, 469 P.3d at 980-81 (asking jury to examine general damages under factors
including “the extent to which [the plaintiff] has been prevented from pursuing [his or her] ordinary affairs,” “the
extent to which [the plaintiff] has been limited in [the] enjoyment of life,” and “whether the consequences of these
injuries are likely to continue, and for how long.”)
72
Id.
73
Id. (citing Restatement (Second) of Torts § 926 cmt. a (Am. L. Inst. 1979)).

14
done to the survivors because of the death.”74 “Damages in a wrongful death suit

include ‘[loss of] financial support furnished; loss of affection, counsel, and advice;

loss of deceased’s care and solicitude for the welfare of the family; and loss of the

comfort and pleasure the family of [the] deceased would have received.”75

In the Answering Brief, Plaintiffs agree with Defendants’ application of

Oxedine v. Overturf and Feldman v. Salt Lake City Corporation.76 These two cases

acknowledge the types of non-economic losses recovered under a wrongful death

action, including loss of society, love, companionship, protection, and affection.77

While Plaintiffs use these cases to support the notion that they can bring pain and

suffering, mental anguish, and emotional distress damages under a wrongful death

action, these cases actually do not align with that argument. The losses attributed to

a wrongful death action are not the same as the pain and suffering, mental anguish,

and emotional distress losses Plaintiffs raise. Therefore, Plaintiffs cannot bring these

losses under a wrongful death act.

For the above reasons, Defendants’ Motion is GRANTED as to wrongful

death damages and DENIED as to survival action general damages A.M.B. suffered

in the time between the alleged negligence and A.M.B.’s passing.

74
Meeks, 545 P.3d at 237 (quoting Meads v. Dibble, 350 P.2d 853, 855 (Utah 1960))
75
Meeks, 545 P.3d at 237 (quoting Est. of Faucheaux v. City of Provo, 449 P.3d 112, 116 (Utah 2019)).
76
D.I. 194 p. 21.
77
See Feldman v. Salt Lake City Corp., 484 P.3d 1134, 1139 (Utah 2021); Oxedine v. Overturf, 973 P.2d 417, 422
(Utah 1999).

15
IV. The Parties Do Not Raise An Issue Over Specific Materials Used in the
RnP.

Defendants opine Plaintiffs’ references in their Complaint to the “makeup,”

“bedding,” and “padding” of the RnP causing any danger or defect in the product is

not supported by expert testimony. Defendants ask the Court to grant summary

judgment on this basis.78 Plaintiffs’ Response assures the Court they are not arguing

a specific material used in the RnP caused A.M.B.’s death, but rather the overall

design of the RnP caused the fatality.79 Plaintiffs state:

[t]o the extend that Defendants’ argument relates solely to the specific
materials selected as opposed to the overall design of the RNPS, then
Defendants’ motion for partial summary judgment can be granted as to
“the materials” used in the RNPS, as there are no claims that the
specific materials used by Defendants was the cause of A.M.B.’s
death.80

Since the parties do not dispute as to the selection of the specific materials of the

RnP not causing A.M.B.’s death, Defendant’s Motion as to this issue is MOOT.

V. There are Genuine Issues as to Plaintiffs’ Fraud, Fraudulent Concealment,
and Negligent Misrepresentation Claims.

A. Utah’s Clear and Convincing Burden of Proof Applies.

Burden of proof is a procedural issue which the forum will apply its law to

unless the “primary purpose of the relevant rule of the state of the otherwise

applicable law is to affect decision of the issue rather than to regulate conduct of the

78
D.I. 164 p. 20-21.
79
D.I. 194 p. 22.
80
Id.

16
trial.”81 In Meyers v. Intel Corporation and Monsanto Company v. Aetna Casualty

and Surety Company, the Delaware courts applied the foreign state’s burden of proof

because the heightened allocation was meant to impact the outcome of trial.82

Utah evidentiary law requires fraud be proven by clear and convincing

evidence; whereas, in Delaware, the burden is a lower preponderance of the evidence

standard.83 To determine which burden of proof to apply, the Court must inquire into

whether Utah’s clear and convincing burden is “inseparably interwoven with

substantive rights” under Utah law.84 “When a rule singles out a narrow issue and

gives the issue special treatment, the rule may be designed to affect the trial’s

outcome.”85

Utah’s typical civil burden of proof is preponderance of the evidence.86 As

was the case in Monsanto Co.87, Utah case law found it necessary to apply a higher

standard to prove fraud such that the burden alone could influence trial’s outcome.

This is an example of Utah case law deviating from the general burden rule to single

out the narrow issue of creating a more exacting standard to prove fraud to ultimately

81
Monsanto Co. v. Aetna Cas. and Sur. Co., 1993 WL 563244, at *3 (Del. Super. Dec. 21, 1993).
82
Meyers, 2015 WL 227824, at *4 (Del Super. Jan. 15, 2015) (applying Colorado’s heightened burden of proof to
support an award for exemplary damages); Monsanto Co., 1993 WL 563244, at *3 (adopting Missouri’s heightened
burden of proof for lost insurance policies).
83
NetApp, Inc. v. Cinelli, 2023 WL 4925910, at *12 (“Each element of fraud must be proven by a preponderance of
the evidence.”); Taylor v. Gasor, Inc., 607 P.2d 293, 294-95 (Utah 1980) (“[F]raud is a wrong of such nature that it
must be shown by clear and convincing proof and will not lie in mere suspicion or innuendo.”) (quoting Lundstrom
v. Radio Corp. of Am., 405 P.2d 339, 341 (Utah 1965)).
84
Monsanto, Co., 1993 WL 563244, at *3.
85
Id.
86
Hansen v. Hansen, 958 P.2d 931, 934-35 (Utah Ct. App. 1998).
87
Monsanto Co., 1993 WL 563224, at *3.

17
impacting a trial’s outcome. Therefore, this Court will apply Utah’s clear and

convincing burden of proof to the fraud claims in this case.

B. Fraudulent and Negligent Misrepresentation.

Under Utah law, a claim of fraud requires the following:

(1) that a representation was made (2) concerning a presently existing
material fact (3) which was false and (4) which the representor either
(a) knew to be false or (b) made recklessly, knowing that there was
insufficient knowledge upon which to base such a representation, (5)
for the purpose of inducing the other party to act upon it and (6) that the
other party, acting reasonably and in ignorance of its falsity, (7) did in
fact rely upon it (8) and was thereby induced to act (9) to that party’s
injury and damage.

“Misrepresentation may be made either by affirmative statement or by material

omissions, where there exists a duty to speak.”88 The duty to speak does not exist

where both parties have reasonable knowledge of the underlying facts.89 In that case,

the plaintiff must take “reasonable steps to inform himself, and to protect his own

interests.”90 Silence on a material fact may be actionable fraud so long as the silence

“relate[s] to a material matter known to the party and which it is his legal duty to

communicate to the other contracting party, whether the duty arises from a

relationship of trust, from confidence, inequality of condition and knowledge, or

other attendant circumstances.”91

88
Sugarhouse Fin. Co. v. Anderson, 610 P.2d 1369, 1373 (Utah 1980).
89
Id.
90
Id.
91
Elder v. Clawson, 384 P.2d 802, 382-83 (Utah 1963).

18
Negligent misrepresentation requires a similar showing to fraudulent

misrepresentation:

a party injured by reasonable reliance upon a second party’s careless or
negligent misrepresentation of a material fact may recover damages
resulting from that injury when the second party had a pecuniary
interest in the transaction, was in a superior position to know the
material facts, and should have reasonably foreseen that the injured
party was likely to rely upon the fact.92

However, negligent misrepresentation does not require the same intentional mental

state as fraudulent misrepresentation.93

Plaintiffs utilize Utah District Court case Johnson v. Blendtec, Inc.94 to

substantiate that Defendants’ “false or incomplete representations in marketing,

advertising, and labeling” adequately provide the basis for their fraud claim.95 In

their Reply brief, Defendants contend Johnson is not instructive because it is at the

pleading stage, and the plaintiff in Johnson is able to point to a specific false

representation.96 Further, Defendants argue Plaintiffs fail to prove reliance on

Defendants’ alleged misrepresentations.97

The holding in Johnson comes at the pleading stage and relates to whether the

plaintiff pled her fraud claim with particularity.98 However, the plaintiff points the

92
Price-Orem Inc. Co. v. Rollins, Brown and Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986).
93
Id. at n.2.
94
500 F.Supp.3d 1271 (D. Utah 2020).
95
D.I. 194 p. 25.
96
D.I. 213 p. 11.
97
D.I. 164 p. 23.
98
500 F.Supp.3d at 1289.

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Court to the exact advertisement she relied on which misrepresented the purchased

blender’s horsepower.99 Johnson instructs the Court that advertising may be relied

upon in a misrepresentation claim. Plaintiffs allege they relied on Defendants’

representation in their “marketing materials, advertising, websites, and packaging”

of the RnP that the product “was safe for infants to lie and sleep in” and “safe for

unsupervised use and sleep.”100

The majority of Plaintiffs’ allegations say they relied on material omissions

from Defendants’ advertisements, marketing, and labels. At this stage, Plaintiffs

provide sufficient evidence to prove Defendants were on notice of issues with the

RnP and had a duty to inform general consumers, including Plaintiffs, of potential

safety deficiencies. In addition, Plaintiffs were not aware, nor in a position to be

aware of, any potential issues with the RnP; therefore, Plaintiffs were not expected

to inform themselves or protect their own interests.

Considering this Motion in a light most favorable to the non-moving party and

that there is a genuine dispute of material fact as to whether Defendants made a

material omission upon which Plaintiffs relied, Defendants’ Motion for Summary

Judgment as to fraudulent and negligent misrepresentations is DENIED.

99
Id.
100
D.I. 1 ¶ 120, 123.

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C. Fraudulent Concealment.

To establish fraudulent concealment under Utah law, “a plaintiff must prove:

(1) that the nondisclosed information is material, (2) that the nondisclosed

information is known to the party failing to disclose, and (3) that there is a legal duty

to communicate.”101

Defendants raise two issues with Plaintiffs’ claim. First, Defendants assert

Plaintiffs failed to allege a “pure nondisclosure” and, instead, only insinuates

Defendants’ made partial disclosures upon which a pure concealment claim cannot

be made.102 Plaintiffs respond with numerous allegations they pled concerning

Defendants’ silence on material facts.103 These allegations include: “[t]he Rock ‘n

Play failed to conform to the AAP’s safe sleep standards and recommendations,”

“the Rock ‘n Play was not safe for infants to sleep in all night long,” “[t]he Rock ‘n

Play’s design, including its incline and angle, could cause an infant to suffocate,

asphyxiate, and/or die,” and “[t]he Rock n’ Play had been linked to hundreds of

infants’ injuries and deaths . . .”104 The Court finds that Plaintiffs have alleged and

provided sufficient evidence to create an issue for the jury as to Defendants’

concealment of material facts concerning the RnP’s safety.

101
Yazd v. Woodside Homes Corp., 143 P.3d 283, 286 (Utah 2006) (quoting Mitchell v. Christensen, 31 P.3d 572, 574
(Utah 2001)).
102
D.I. 164 p. 24-25.
103
D.I. 194 p. 27.
104
D.I. 194, Ex. DD (citing D.I. 1 ¶121(a)-(k)).

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Second, Defendants argue Plaintiffs fraudulent concealment is duplicative of

their failure to warn claim and that these claims cannot be brought together under

the same products liability suit.105 Defendants cite to numerous Federal District

Court cases to support this proposition. While each case does disallow the plaintiffs

to bring both a claim of fraudulent concealment and failure to warn in their products

liability case, the basis for this finding is due to factors absent from the instant

case.106

While a review of Utah case law shows fraudulent concealment claims are not

generally brought in products liability cases, this does not mean a plaintiff cannot do

so. The elements of each claim and Plaintiffs’ arguments under each claim are

different. Plaintiffs’ fraudulent concealment claim is based on Defendants’ alleged

concealment of material facts, while Plaintiffs’ failure to warn claim is based on

inadequate warnings on the RnP and its manual.

Based on the above reasons, the Court DENIES Defendants’ motion for

summary judgment as to Plaintiffs’ fraudulent concealment claim.

VI. There Is No Dispute As to Plaintiffs’ Allegations Incorporated in Their
Negligence Claim.

105
D.I. 164 p. 25.
106
See Waterhouse v. R.J. Reynolds Tobacco Co., 270 F.Supp.2d 678, 684-85 (D. Md. 2003) (disallowing plaintiffs
to bring both claims because the fraudulent concealment claim was preempted by the Labeling Act); Hamner v. BMY
Combat Sys., 869 F.Supp. 888, 892 (D. Kan. 1994) (prohibiting bringing both claims because Kansas did not
recognize fraudulent concealment in products liability cases); Spangler v. Sears, Roebuck and Co., 759 F.Supp. 1337
(preventing both claims from going forward because the fraudulent concealment claim was based solely on the
failure to warn claim).

22
Defendants contend Plaintiffs’ “discrete” negligence theories including (1)

failure to test, (2) failure to timely recall, (3) failure to seek appropriate and adequate

guidance, advice, and input, and (4) continuing to market are not independently

cognizable negligence claims under Utah law. Plaintiffs reply that these allegations

are “not independent caused of action at all; they are simply allegations subsumed

in Plaintiffs’ negligence count,” to describe Defendants’ conduct.

The Court finds it undisputed that Plaintiffs are not attempting to bring

separate legal claims via the above-mentioned allegations. Therefore, Defendants’

Motion as to this issue is MOOT.

VII. There is a Genuine Issue of Material Fact As to the Adequacy of RnP
Product Safety Warnings.

“[A] manufacturer may be held strictly liable for any physical harm caused by

its failure to provide adequate warnings regarding the use of its product.”107 When

a manufacturer “knows or should know of a risk associated with its product” and

fails to adequately warn of that risk, the product becomes “unreasonably

dangerous.”108 “In any failure to warn claim, a plaintiff must show that the failure

to give an adequate warning in fact caused the injury; i.e., that had warnings been

107
House v. Armour of Am., Inc. (House II), 929 P.2d 340, 343 (Utah 1996) (quoting House v. Armour of Am., Inc.
(House I), 886 P.2d 542, 547 (Utah Ct. App. 1994) (citing Restatement (Second) Of Torts §402A, cmt. J (1965)).
108
Id.

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provided, the injured party would have altered his use of the product or taken added

precautions to avoid the injury.”109

An adequate warning “must completely disclose all [of] the risks involved, as

well as the extent of those risks.”110 An adequate warning is one “(1) [] designed to

reasonably catch the user’s attention; (2) [] understandable to foreseeable users; (3)

fairly indicate[s] the danger from the [product’s] foreseeable use; and (4) []

sufficiently conspicuous to match the magnitude of danger.”111

Defendants maintain the RnP came with adequate warnings.112 Defendants

argue Plaintiffs’ blatant ignorance of the warnings do not amount to a legal basis for

failure to warn.113

Plaintiffs respond with Defendant’s lack of warning pertaining to the

foreseeable use of the RnP which was for unattended, overnight sleep.114 An infant

is swaddled when sleeping, therefore, the three-point restraint system could not be

used when an infant was asleep in the product.115 Plaintiffs argue, especially because

the product was marketed for sleep, this is a foreseeable use and the warnings should

anticipate it.116

109
House II, 929 P2d at 346 (citing Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 836-37 (Utah 1984)).
110
House I, 886 P.2d at 551, aff’d House II, 929 P2d 340.
111
Model Utah Jury Instructions (MUJI 2d CV 1019), Negligence, Definition of “adequate warning.”
112
D.I. 164 p. 26-28.
113
Id. at 28.
114
D.I. 194 p. 30-35.
115
Id. at 31.
116
Id. at 32-33.

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Defendants cite to Groesbeck v. Bumbo International Trust, a Tenth Circuit

case holding that the plaintiffs’ ignorance of the product warnings was not a solid

legal foundation for a failure to warn claim.117 The warning in this case was to

“never use on any elevated surfaces.”118 It specifically stated this caution is meant

to “prevent falls.”119 The manufacturer added these warnings after reports of infants

falling out of the product.120 Despite the added warning, the plaintiffs placed their

infant child in the product on an elevated surface when the incident occurred.121

Groesbeck is not instructive because the manufacturer in Groesbeck adapted

their warning to reflect a consumer use brought to their attention. The warning

relayed the specific hazards the caution prevents – falling. Despite knowing the

specific danger, the parents ignored the warning completely. In the instant case,

issues of adequacy still present themselves to the Court. These issues include

whether the RnP warnings present Plaintiffs with specific dangers the product may

cause and whether nonuse of the restraint system and use of a blanket in the product

are foreseeable uses the warning should have anticipated.

117
718 F.App’x 604, 619 (10th Cir. 2017).
118
Id. at 608.
119
Id.
120
Id. at 607.
121
Id. at 609.

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Both parties utilize expert witnesses to argue adequacy of the warnings.122

The Court believes the experts should have the opportunity to testify, and parties to

cross-examine, before a jury and allow them to decide expert credibility.

The Court finds that there is a genuine issue of material fact as to whether

Fisher-Price provided adequate warnings for use of the RnP and, if so, whether

Plaintiffs would have opted to not use the product had the warnings been sufficient.

These issues must be submitted to a jury. Therefore, the Court DENIES the

Defendant’s motion for summary judgment as to failure to warn.

VIII. The Issue of Conscious Pain and Suffering Should Be Submitted to a Jury.

As discussed in the Court’s Order to Defendants’ Daubert Motions and Motions

in Limine concerning A.M.B.’s conscious pain and suffering and the relating expert

testimony, the Court finds that Plaintiffs produce sufficient evidence and reliable

expert testimony to submit the question of whether A.M.B. suffered conscious pain

and suffering to a jury. Therefore, the Court DENIES Defendants’ Motion as to pain

and suffering damages.

122
See D.I. 164 p. 28, D.I. 194 p. 31-32.

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CONCLUSION

Based on the above reasons, Defendants’ Motion to Dismiss is DENIED IN

PART AND GRANTED IN PART.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
cc: File&ServeXpress

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