PITTSBURGH – Subsequent to the securing of a sealed settlement for an Altoona couple, who claimed a device created to assist babies in sleeping instead caused the death of their three-month-old son from Sudden Infant Death Syndrome due to the product’s inherent defects, a federal judge sanctioned a member of plaintiff counsel for nearly $20,000 due to what the judge termed his disruptive conduct.
Tanya McCartney and Mark Montgomery III (individually and as Administrators of the Estate of Kaidon A. Montgomery) of Altoona first filed suit in the U.S. District Court for the Western District of Pennsylvania on Sept. 17, 2021 versus Kids2, Inc. (formerly known as “Kids II, Inc.) and Kids2, Inc. (doing business as and also known as “Ingenuity”) of Atlanta, Ga.
On Dec. 30, 2019, McCartney gave birth to her child, Kaidon A. Montgomery. At all times, plaintiffs owned and possessed a product known as the “Ingenuity Automatic Bouncer” inclined sleeper device.
The suit alleged that the product, and the class of products known as infant-inclined sleepers or bouncers, are “defective, dangerous and unsafe for infants as they were designed to place an infant in an unsafe position which interferes with an infant’s ability to breathe.”
The suit said that the product places children, such as plaintiff’s decedent, in a position where the child’s chin falls towards their chest and creates an asphyxiation/suffocation hazard, by the fact that the product’s incline, angle, and design prevents the child from rolling back onto the child’s back in the event that the child rolls onto its stomach in the product.
“The plaintiff’s decedent, Kaidon Montgomery, was the child of plaintiffs, Tanya McCartney and Mark Montgomery III. On April 3, 2020, plaintiffs were residing at their residence located at 104 Howard Avenue, Altoona, Pennsylvania, 16601, along with their son Kaidon,” the suit said.
“The morning of April 3, 2020, plaintiffs woke up to feed their child, Kaidon. During this time, Kaidon was smiling and laughing. After feeding him, plaintiffs placed Kaidon in the product.”
On the morning of April 3, 2020, Kaidon was placed in the product and was then discovered unresponsive by plaintiffs. At this time, Kaidon was limp, and his head was turned to one side in the product. Upon discovering her son Kaidon non-responsive, Tanya McCartney contacted 911 and the 911 operator/dispatcher instructed her to start CPR, which she did.
McCartney attempted CPR on her son Kaidon until EMS responded to the plaintiffs’ apartment. Upon arrival, EMS was unable to find a pulse and Kaidon was declared deceased.
“Defendants recklessly and consciously disregarded the safety, health and lives of babies in their decisions with respect to the design and distribution of the product despite knowing and appreciating the risk of harm, including death to babies and infants, that resulted from their decisions and disregard as pled throughout this complaint. The plaintiff’s decedent died as a result of the negligence, carelessness, wanton and reckless conduct of the defendants and the sale and distribution of the defective and dangerous product which was not safe for its intended and foreseeable use,” the suit stated.
“As a direct and proximate result and cause of the defective and unreasonably dangerous product, and the defendants’ negligence, carelessness, recklessness, breach of warranties, and willful and wanton conduct, plaintiff’s decedent asphyxiated and died.”
The defendants answered the complaint on Oct. 21, 2021, denying the plaintiffs’ allegations in their entirety and providing 48 separate affirmative defenses on their own behalf.
“The complaint fails, in whole or in part, to state a claim upon which relief may be granted. Plaintiffs’ claims are barred, in whole or in part, by failure to join necessary and indispensable parties. Kids2 performed each and every duty, if any, owed to plaintiffs. Kids2 was not negligent. At the time and place in plaintiffs’ complaint, plaintiffs were negligent by failing to use the degree of care which would have been used under the same or similar circumstances by an ordinary, reasonable and prudent person, and plaintiffs’ negligence was the sole proximate cause of the alleged damages complained of in the complaint,” per the defenses, in part.
“Plaintiffs’ own negligence or fault caused or contributed to plaintiffs’ alleged damages. Plaintiffs’ recovery against Kids2, if any, must be reduced in proportion to plaintiffs’ culpable conduct. Any award of compensatory or punitive damages in this action would violate the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. An award of punitive damages would violate Kids2’s rights to due process, and plaintiffs’ claims for punitive damages, thus, are barred by the Constitutions of the United States and Commonwealth of Pennsylvania. Plaintiffs’ request for actual or compensatory damages violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution because the unquantifiable damages sought constitute an excessive and arbitrary punishment that furthers no legitimate purpose and, thus, is an arbitrary deprivation of property.”
The defendants added that the plaintiffs cannot establish liability against them “because the product was reasonably fit, suitable, and safe for its intended purpose, and was not ‘unreasonably dangerous.”
On Jan. 31, the plaintiffs filed dual motions for sanctions and to strike improper rebuttal expert testimony, from Mr. James L. Glancey, Ms. Erin M. Mannen, Dr. Wayne K. Ross, Dr. Dennis Rosen, and Ms. Marietta S. Robinson.
“Kids2 seeks sanctions for the obstreperous and improper conduct of plaintiffs’ counsel, Tom Bosworth, during the depositions of plaintiffs’ experts. Throughout the depositions of Mannen, Ross, Rosen and Glancey, Bosworth interposed an astounding number of improper objections – over 150 by Kids2’s count – including more than two dozen instances in which he instructed the experts not to answer questions without any recognized legal basis for doing so. Bosworth’s objections were frequently lengthy and clearly intended to influence the witness’s testimony or shut down reasonable lines of inquiry,” according to the motion for sanctions.
“They were also expressed in discourteous, uncivil terms and far too often infused with personal insults directed at Kids2’s counsel. In violation of the Federal Rules and any reasonable standard of decorum, Bosworth’s behavior impeded the fair examination of plaintiffs’ experts and prejudiced Kids2’s preparation for trial. Given Bosworth’s repeated and significant infractions, Kids2 is entitled to sanctions, and it proposes a series of tailored sanctions below, including costs and fees for bringing this motion, costs and fees for attending expert depositions, limits on the experts’ opinions, and/or stipulations as to certain issues about which Bosworth obstructed fair examination of his witnesses.”
Kids2 argued that plaintiff counsel Bosworth’s “improper conduct in defending his clients’ expert depositions…was the peak of a crescendo of unprofessional behavior.”
The simultaneous motion to strike argues that despite the plaintiffs’ “incomplete initial expert reports – where their experts failed to review documents and offer opinions plaintiffs now wish they had – the plaintiffs are trying to salvage their case through improper conduct.”
“Plaintiffs have stonewalled expert discovery and engaged in misconduct ranging from not producing expert files (which Kids2 still does not have for several experts) to obstructing depositions (the subject of Kids2’s motion for sanctions). Now, however, plaintiffs are attempting to rewrite their case by serving expert ‘rebuttal’ reports that contain entirely new opinions and introduce new documents. Plaintiffs’ rebuttal disclosures are nothing more than an attempt to supplement and fix their case-in-chief – long past their deadline to do so – by offering novel testimony and advancing new theories under the guise of rebuttal. This is improper,” the second motion stated.
“Rebuttal testimony is only permitted to directly contradict or rebut evidence put forth by the opposing party’s expert. Courts have repeatedly held it is impermissible to use rebuttal testimony to advance new arguments or evidence, or to correct oversights from initial expert reports. But that is exactly what plaintiffs have tried to do here: Shuffling in new theories and documents to fill holes in their experts’ initial reports and depositions. Therefore, this Court should strike the portions…of plaintiffs’ rebuttal evidence that constitutes improper rebuttal testimony.”
Kids2 argued that “because plaintiffs’ initial expert reports were deficient, and their ability to timely supplement them had passed, plaintiffs opted to disclose new case-in-chief opinions in new reports that are brazenly masquerading as rebuttal.”
“These so-called rebuttal reports include: Brand-new opinions about the Ingenuity SmartBounce Automatic Bouncer; novel theories on defect and causation; opinions on documents that experts failed to review or opine on for their initial reports; and documents that plaintiffs simply want to use in their prima facie case that have nothing to do with the expert’s opinions. None of that is rebuttal testimony,” per the motion to strike.
“All of it constitutes opinions that should have been disclosed, if at all, in plaintiffs’ initial expert reports or timely supplemental reports. Plaintiffs’ discovery abuse culminating in the disclosure of improper rebuttal reports threatens acute prejudice to Kids2 and cannot be overlooked, and this Court should strike plaintiffs’ improper expert ‘rebuttal’ opinions.”
The plaintiffs filed an opposing response to this motion on Feb. 15, but a final decision on the motion had not been rendered.
On May 12, the plaintiffs filed a redacted and unopposed petition to approve allocation of the settlement for the wrongful death and survival action. Terms of the proposed settlement were not revealed, as they are under seal.
However, it is known that attorney’s fees and costs will be provided to plaintiff counsel at Kline & Specter, funds to be held in escrow pending resolution of any lien identified by the Pennsylvania Department of Human Services DHS, wrongful death damages, survival damages and funds held in escrow, not expended for the specified purpose of lien resolution, will be divided and distributed to the survival claim and to the wrongful death claim.
U.S. District Court for the Western District of Pennsylvania Judge Stephanie L. Haines approved the allocation on May 17.
UPDATE
Haines further sanctioned plaintiff counsel Thomas E. Bosworth in the amount of $19,713.50 to be paid to defense counsel within 30 days, in a Sept. 27 memorandum order.
Haines levied the penalty upon Bosworth, for what she termed to be disruptive and unprofessional conduct towards his legal adversaries and derailing depositions in the course of discovery.
This included Bosworth lodging more than 150 objections during the deposition testimony and unjustifiably advising expert witnesses not to answer questions on dozens of occasions.
“The Court is particularly troubled by the numerous, vicious personal attacks that attorney Bosworth made against attorneys Bullard and Bassin. Attorney Bosworth alternated between being rude, demeaning and obnoxious, at times using a higher pitched, mocking tone to belittle the female defense counsel,” Haines said.
“All defense counsel were witness to, and at various times the target of, attorney Bosworth’s inexcusable personal diatribes and obnoxious behavior during the depositions. The record shows attorney Bullard, Bassin and Shahidi repeatedly attempted to defuse attorney Bosworth’s offensive behavior to no avail. The Court finds a sanction of the entire time defendant’s attorneys had to attend the depositions and be subjected to attorney Bosworth’s unprofessional and harassing conduct is appropriate.”
Haines used defense counsel’s billings and respective fee rates to determine the financial sanction in question.
The plaintiffs were represented by Terrance DeAngelo, Shanin Specter, Thomas E. Bosworth and Michael A. Trunk of Kline & Specter, in Philadelphia. Bosworth is no longer a member of that firm.
The defendants were represented by Alana K. Bassin, Jenna Durr and Jennifer K. Bullard of Nelson Mullins Riley & Scarborough in Minneapolis, Minn., plus William J. Conroy and Yasha Khatib Shahidi of Campbell Conroy & O’Neil, in Berwyn.
U.S. District Court for the Western District of Pennsylvania case 3:21-cv-00166
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com