PHILADELPHIA – The makers of an infant sleeping device who allegedly failed to correct an inherent flaw in the product that resulted in the death of a nearly-four-month-old infant have been granted the opportunity to depose one of the plaintiffs while he is incarcerated on unrelated criminal charges.
David Bogdan, Esq. (Administrator of the Estate of C.B. Jr., deceased), Christopher Baylor Sr. and Miaya Long, all of Philadelphia, initially filed suit in the Philadelphia County Court of Common Pleas on Aug. 25 versus Dorel Industries, Inc., Dorel China America, Inc. and Dorel Juvenile Group, Inc. (all doing business as “Monbebe”) of Foxboro, Mass., Dorel Juvenile USA (doing business as “Monbebe”) and Monbebe of Columbus, Ind., Wal-Mart, Inc. (c/o CT Corporation System) of Wilmington, Del,., Wal-Mart Supercenter Stores, Inc. of Philadelphia, John/Jane Does 1-10 and ABC Corporations 1-10.
“C.B. Jr. was born on May 6, 2021. C.B. Jr. (hereinafter referred to as plaintiffs’ decedent) died on Aug. 28, 2021. Plaintiffs’ decedent was the first child of Miaya Long and Christopher Baylor Sr., a couple who lives in the West Philadelphia section of Philadelphia County,” the suit said.
“On or about Aug. 28, 2021, Miaya Long and Christopher Baylor Sr. were at home when plaintiffs’ decedent had fallen asleep in his father’s arms. At approximately 9 a.m., Mom (Miaya Long) walked into the room, saw plaintiffs’ decedent in his dad’s arms and removed plaintiffs’ decedent from dad and placed him in the product (known as the “Monbebe Flex Deluxe Playard”) and went back to sleep. At around 11 a.m., Mom walked into the room to check on plaintiffs’ decedent who was found face down in the product, and was not breathing. Mom and Dad had rushed plaintiffs’ decedent to Lankenau Hospital.”
The suit added that Baylor Sr. and Long had rushed the child to Lankenau Hospital and the plaintiffs’ decedent was unresponsive, pulseless and pronounced dead at 12:03 p.m. on Aug. 28, 2021.
“The plaintiffs’ decedent died because of the negligence, carelessness, wanton and reckless conduct of the defendants and the sale and distribution of their defective and dangerous product which was not safe for its intended and foreseeable use as an infant sleeping product. As a further result of the aforesaid, plaintiffs’ decedent was obliged to receive and undergo medical attention and care, including rehabilitation, hospitalization, surgical procedures, which caused his parents and Estate to incur various and diverse medical expenses. As a further direct and proximate result of the negligence, carelessness, wanton, and reckless conduct of the defendants, plaintiffs’ decedent suffered great physical pain and suffering, trauma, mental anguish, embarrassment and humiliation,” the suit stated.
“As a further direct and proximate result of the negligence, carelessness, wanton, and reckless conduct of the defendant, plaintiffs’ decedent’s daily activities, occupation and usual life’s pleasures were forever extinguished. As a further direct and proximate result of the negligence, carelessness, wanton, and reckless conduct of the defendants, plaintiff's’ decedent’s earnings, earning capacity and employment opportunities were terminated. As a further direct and proximate result of the negligence, gross negligence, recklessness and/or carelessness of the defendants, Christopher Baylor Sr. incurred liability for emergency medical services, funeral, and household expenses.”
Plaintiffs Baylor Sr. and Long were registered for baby gifts through a gift registry with the Wal-Mart defendant(s) and were gifted the product in question.
Citing diversity of citizenship and the damages in question, Walmart removed the case to the U.S. District Court for the Eastern District of Pennsylvania on Sept. 18.
Walmart answered the action and denied the charges, before providing numerous affirmative defenses on its own behalf.
“To the extent discovery reveals evidence of product misuse, plaintiffs’ claims may be barred in whole or in part. To the extent discovery reveals evidence of assumption of risk, plaintiffs’ claims may be barred in whole or in part. To the extent discovery reveals evidence of highly reckless conduct, plaintiffs’ claims may be barred in whole or in part. To the extent discovery reveals evidence that plaintiffs altered the product or its accessory components prior to use of the product, plaintiffs’ claims may be barred in whole or in part. To the extent discovery reveals evidence of contributory and/or comparative negligence, plaintiffs’ claims and/or recoverable damages may be limited by the same. Walmart did not design or manufacture the product in issue,” the defenses stated, in part.
“Walmart is not liable on the grounds that the subject product and its accessory components were state of the art and manufactured and assembled in accordance with all applicable codes, laws, rules and ordinances. Walmart’s liability may be limited to the terms of an express warranty. Walmart breached no express or implied warranties. Walmart made no representations, either impliedly or expressly, upon which plaintiffs relied. Walmart had no actual or constructive notice of any condition or defect alleged by plaintiffs. Walmart did not breach any duty of care to plaintiffs.”
Walmart added that indispensable third-parties to whom liability could and should be assigned had not been added to the case.
Other answers to the litigation filed the same day by Dorel China America, Inc. and Dorel Juvenile Group, Inc. put forward similar affirmative defenses.
UPDATE
On Jan. 18, counsel for Dorel Juvenile Group, Inc. and Dorel China America, Inc. filed an unopposed motion to take Baylor Sr.’s deposition per Federal Rule of Civil Procedure 30(a)(2)(B), while he serves a sentence on unrelated criminal charges.
“Upon information and belief, plaintiff, Christopher Baylor Sr. was present in the home when the infant was placed in the playard prior to his death. In addition, plaintiffs have brought damage claims on behalf of Christopher Baylor Sr., as the father of the deceased infant. Accordingly, Christopher Baylor Sr. is a material fact witness in this case both with respect to plaintiffs’ claims of liability and damages. Christopher Baylor Sr. is currently incarcerated in Curran-Fromhold Correctional Facility on criminal charges unrelated to this matter. Rule 30 (a)(2)(B) provides in pertinent part [that a deposition by oral examination may be taken if the deponent is confined in prison],” the motion stated.
“As Christopher Baylor Sr. is a party in this case and a material witness as to both liability and damages, defendants will be prejudiced without being able to take his deposition. Counsel for plaintiffs has advised that plaintiffs do not oppose this motion seeking leave to take the deposition of Christopher Baylor Sr. while he is incarcerated. Counsel representing Christopher Baylor Sr. in the pending criminal matter, Michael I. McDermott, Esq., North American Building, 121 S. Broad St., Floor 18, Philadelphia, PA 19107, also has been advised of defendants’ counsel’s intention to take the deposition of Mr. Baylor Sr., have invited him to attend, and are proving him a copy of this motion seeking leave to take his deposition. The current discovery deadline in this matter is March 15, 2024. Accordingly, defendants request that the Court enter an order pursuant to Federal Rule of Civil Procedure 30(a)(2)(B) granting leave for the parties to take the deposition of Christopher Baylor Sr. at the Curran-Fromhold Correctional Facility (or any other correctional facility to which he is assigned at the time of the deposition) on a date mutually agreeable to counsel and in accordance with the applicable rules and regulations of the correctional facility.”
Four days later, U.S. District Court for the Eastern District of Pennsylvania Judge Gene E.K. Pratter granted the motion, since the plaintiffs did not oppose it and also finding that since Baylor Sr. was allegedly present in the home at the time when the decedent passed away, his deposition is “likely to yield relevant information and is proportional to the needs of this case.”
For counts of negligence, strict liability, breach of warranty, survival and wrongful death, the plaintiffs are seeking damages, jointly and/or severally, in excess of $50,000, in compensatory damages, punitive damages, delay damages, costs and such other, further relief the Court shall deem appropriate.
The plaintiffs are represented by Kevin P. O’Brien, Prince P. Holloway and Kristin H. Buddle of Stampone Law, in Cheltenham.
The defendants are represented by Malerie Ma Roddy and Rachel A. Remke of ArentFox Schiff in Chicago, Ill., plus Frank S. Nofer and Madison C. Bierley of Brehm Nofer & McCarter, in Conshohocken.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03622
Philadelphia County Court of Common Pleas case 230802817
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com