Fisher-Price Moldy Sleeper Lawsuit Denied Class Certification

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Last week, an Alabama federal judge denied class certification for two nationwide classes of consumers in a lawsuit against Fisher-Price over its alleged moldy baby sleeper, stating that the classes were not adequately defined and that some of the claims were not certifiable.

Jason and Rachel Harris filed the lawsuit against Fisher-Price in January 2013 after their son allegedly developed RSV (respiratory syncytial virus), eye infections, ear infections and gastrointestinal issues after he had been sleeping in the Rock N’ Play Sleeper for the first three months of his life. Their son was hospitalized for the issues allegedly due to the mold exposure that developed from biotoxin growing on the sleeper itself.

The couple argued that Fisher-Price had previously acknowledged that the sleepers were prone to mold growth as early in 2010, as mold had been demonstrated to grow on plastic inserts that were part of the sling. They also stated that the 2013 recall of the product was inadequate because the voluntary recall simply consisted of cleaning instructions that could be downloaded for the product.

The couple proposed two nationwide Classes for certification- a Class of consumers who purchased the sleeper and another Class of consumers who received the sleeper as a gift. They also proposed eight subclasses in various states, claiming that Fisher-Price violated federal and state warranty laws as well as state consumer protection laws by selling sleepers that developed toxic mold leading to infant health problems.

In her order to deny Class certification, U.S. District Judge Karon Owen Bowdre said the group lacked common questions or members that were able to be identified, lacked adequate representatives for the Classes and contained claims that could not be certified.

The Harris family acknowledged that many of their claims were ineligible for certification during a hearing that was held in February. The couple had claims of state warranty and federal Mangnuson-Moss Warranty Act violations that could not be certified, thus making the couple’s nationwide groups ineligible for certification. The named Kentucky plaintiffs were also not participating in the proposed class action lawsuit, so that Class was also not certified.

Judge Bowdre granted the couple’s request to keep the seven state subclasses after she declined to certify the Kentucky and nationwide Classes during the hearing a couple months ago, but she found the subclass of consumers that received the Rock N’ Play Sleeper as a gift were ineligible for certification because it included individuals who had not actually been harmed by the product.

In her recent order, Judge Bowdre found that several state groups had no representative with standing for claims brought in the purchaser subclasses in Ohio, Oklahoma and Florida, so those classes were not certified. Judge Bowdre also said that even if all the Classes had representation, the proposed classes lacked ascertainability since it was not possible to identify potentially eligible Class Members.

The husband and wife team previously said that they could obtain records of purchase information from third-party retailers, but did not produce any documentation to show what type of information the retailers recorded or how many consumers could be identified through such a mechanism.

Judge Bowdre concluded by saying that “the court found that the Plaintiffs had not demonstrated that ‘common questions of law or fact common to class members predominate over any questions affecting only individual members,’ as required for class certification…”

The plaintiffs in a similar lawsuit against Fisher-Price alleging that the sleeper easily grew mold also had their motion for Class certification denied in February 2014. The judge presiding over that case said that the plaintiff “fail[ed] to establish that any actual defect was common to the entire class.”

Plaintiffs are represented by Donald W. Stewart of Stewart & Stewart PC.

The Fisher-Price Newborn Rock N’ Play Mold Recall Class Action Lawsuit is Jason Harris, et al. v. Fisher-Price Inc., et al., Case No. 13-cv-00076, in the U.S. District Court for the Northern District of Alabama.