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    Mass Torts: #22 Litigation Spotlight: #22

    A Closer Look at the Rock ‘n Play Sleeper Litigation: A Conversation with Attorney Regina Calcaterra


    On June 7, 2021, Representative Carolyn B. Maloney, Chairwoman of the House Committee on Oversight and Reform, announced the disturbing results of a two-year investigation into 97 infant deaths associated with the Fisher-Price Rock ‘n Play Sleeper. In the reports, Representative Maloney cited corporate greed and weak federal oversight as some of the many factors that lead to the tragic deaths. The report comes on the heels of another shocking House Committee report, published in February 2021, that revealed that several trusted baby food brands contained toxic heavy metals.

    These House Committee reports have shed much-needed light on a problem that faces parents all over the country—can you trust that a product that is marketed as “safe” to not harm your child?

    Parents’ first priority is to keep their children free from harm, and many consumers reasonably trust that popular brands like Fisher-Price also hold the safety of their children paramount. Many times, that trust is broken by products like the Rock ‘n Play Sleeper. We spoke to attorney Regina Calcaterra, founding partner of Calcaterra Pollack LLP, about the Rock ‘n Play Sleeper litigation and what she and her firm are doing to hold companies accountable for their actions.

    CF: Tell us about the product at the center of this litigation: the Rock ‘n Play Sleeper. What is it and what makes it so dangerous?

    RC: The product itself is an inclined sleeper that raises a baby’s head and torso upwards at approximately 30 degrees. The product was designed by Fisher-Price and appeared on the U.S. market in 2009. However, to understand this litigation fully, you need to understand that for decades, pediatricians and safe sleep advocates, including the American Academy of Pediatrics, have been petitioning for public recognition that the only safe way to put a baby to sleep is to put them on a flat mattress, with a tight sheet and nothing else around them. By Fisher-Price putting an item with a 30-degree incline on the market and calling it a “sleeper,” they were going directly against the recommended medical advice, thereby, exposing infants to the possibility of death by asphyxiation or suffocation. When you put an infant at a 30-degree incline and their head falls forward, they don’t have the strength to pull their heads back up which causes them to asphyxiate.

    Additionally, in anticipation of the Rock ‘n Play Sleeper’s production Fisher-Price conducted no research to determine if the 30-degree incline of the product was safe for infant sleep. The head Engineer for Product Integrity on the Fisher-Price development team for the Rock ‘n Play Sleeper, Michael Steinwachs, has actually admitted that the 30-degree incline was simply chosen because it was less than the 45-degree incline applicable to many car seats. So, while Fisher-Price did a test to see if the product would tip over with the baby in it, they did not test whether the incline would cause asphyxiation or suffocation.

    CF: How was the product marketed?

    RC: The product was actively marketed as a “sleeper” that a parent could place the baby in and then go to sleep themselves, leaving the baby unattended. In fact, the box for the product actually showed a mother lying in bed ready for sleep alongside her infant, asleep in the Rock ‘n Play Sleeper, which implies that the infant can be left unattended in the inclined sleeper while the parent or caregiver sleeps.

    However, before the product was even launched on the market, Australia and Canada expressed issues with its safety. Specifically, Australia refused to sell the product on the basis that it violated Australian safe sleeping guidelines. Canada insisted that the product description be changed from a “sleeper” to a “soother” if Fisher-Price wanted to sell it on the Canadian market. Fisher-Price did surveys prior to selling the Rock ‘n Play in Canada to see if the product would appeal to customers as a soother, and they found that consumers were far more interested in the product if it was marketed as a sleeper rather than a soother.

    CF: Once it was on the market, was the Rock ‘n Play popular? Did the problems with it materialize immediately?

    RC: Yes, the product was very successful. I believe that between the product’s launch on the American market in 2009 up to its recall in 2019, around 4.9 million Rock ‘n Play Sleepers were sold. Additionally, almost immediately after the Rock ‘n Play was introduced to the market, through to the time it was recalled, there were consumer complaints about the safety of the product, particularly instances of infant deaths during its use, to the Consumer Products Safety Commission (“CPSC”).

    Mattel, Fisher-Price’s parent company, received the same information as the CPSC so it was very much aware of the dangers that were now being associated with the product. However, due to an antiquated rule that only applies to the CPSC, entitled Section 6(b), the public was never notified of the CPSC’s findings. Specifically, Section 6(b) says that if the CPSC discovers that a product causes injuries or death, the CPSC cannot disclose that information to the public without first getting permission from the manufacturer. Of course, in this case, the manufacturers of the Rock ‘n Play Sleeper, Mattel and Fisher-Price, did not want to disclose to the public that their product was dangerous.

    CF: That’s astonishing that so many entities were aware of the dangers associated with this product and yet did nothing to inform consumers that they were putting their children at serious risk. How did you first become aware of the dangers of this product?

    RC: I first became aware of the dangers associated with the Rock ‘n Play Sleeper in January 2018, when a pediatric healthcare provider approached me and explained how dangerous the product was and stressed to me how the Rock ‘n Play really should not be sold as a sleeper. We then discussed starting a consumer class action lawsuit based on false advertising against Fisher-Price and Mattel.

    Around April 2019, shortly after we had served Mattel with a draft complaint emphasizing our research, Consumer Reports released a story detailing how the Rock ‘n Play Sleeper had been linked to at least 32 infant deaths due to asphyxia between 2011 and 2018. As I mentioned earlier, Section 6(b) prohibits the CPSC from releasing information about a product causing injuries without prior permission from the manufacturer. When Rachel Peachman, the investigative journalist for Consumer Reports requested additional detail from the CPSC under the Freedom of Information Act, the CPSC inadvertently sent over unredacted reports on the Rock ‘n Play Sleeper deaths and injuries. Consumer Reports was then able to call attention to not just the dangers of inclined sleepers in general, but to the Rock ‘n Play Sleeper specifically.

    On April 5, 2019, after Fisher-Price and the CPSC found out that Consumer Reports was going to publish the story naming the Rock ‘n Play specifically and listing the number of infant deaths associated with it, both Fisher-Price and the CPSC issued a public statement acknowledging that 10 babies had died in the Rock ‘n Play Sleeper. The admission was tempered by Fisher-Price stating that the babies were dying from rolling over, that infants three months and older should not be placed in the Rock ‘n Play, that infants died because they were not strapped in, and most disturbingly, implying that the parents were at fault. Of course, the public statement made by Fisher-Price and Mattel was littered with untruths, one being that babies under three months old were dying in the Rock ‘n Play Sleeper regardless of whether they were strapped in or rolled over.

    CF: Did the Consumer Reports article lead to the recall of the Rock ‘n Play Sleeper?

    RC: Yes, just days after the Consumer Reports article was released which detailed the true dangers associated with the Rock ‘n Play, and further revealed that 30 infant deaths (not 10 as had been suggested by Fisher-Price and the CPSC) were associated with the Rock ‘n Play Sleeper, Fisher-Price and the CPSC finally issued a recall recommending that parents stop using the Rock ‘n Play Sleeper immediately.

    The CPSC also issued a temporary rule banning all inclined sleepers, in addition to hiring a scientist at the University of Arkansas to conduct a year-long study with a group of pediatric specialists to investigate the safety of incline sleepers. They set out to determine whether infant deaths could occur in incline sleepers from asphyxiation, when their heads tilt forward, or suffocation when their heads tilt to the side. The study showed that asphyxia and suffocation is a serious risk with inclined sleepers.

    Finally, in June 2021 the CPSC issued a final ban on inclined sleepers.

    CF: Were there further consequences from the Consumer Reports investigation?

    RC: Definitely. The Consumer Reports article really made a huge impact—suddenly people became aware of the danger their babies were exposed to by a trusted name like Fisher-Price. Around this time, I went on CNN to discuss the class action, and afterward, I was contacted by several families who had lost their babies and never knew what happened. Our clients had put their babies to sleep in the Rock ‘n Play Sleeper and the infants had asphyxiated.

    CF: What is the status of the litigation now?

    RC: With the recent publication of the House Oversight Committee’s extensive investigation of the Rock ‘n Play Sleepers, I believe that this litigation is in a very strong position and has been lent an additional layer of viability. Now, it’s no longer just the attorneys and the parents saying that this product is dangerous, it’s the CPSC and the U.S. House Oversight Committee. Our firm is representing seven families who have lost infants in Rock ‘n Play Sleepers.

    Our cases are being litigated in LA County, California where Mattel is incorporated. The causation of our cases is the incline. You cannot design a product with a 30-degree incline and advertise it as a sleeper for infants. Advertising a product as a sleeper naturally brings connotations of safety and parents reasonably rely on the product to be safe. We are presently assessing the damages associated with the suits now. But I want to stress that no amount of money will make our families whole after the tragic losses they have endured. Our clients needlessly lost their infants and they will never truly have closure from that, but I think that seeing Fisher-Price and Mattel be made accountable will help to bring some level of closure.

    In addition to representing families who lost their infants in the Rock ‘n Play Sleeper, Calcaterra Pollack LLP continues to advocate for child safety by also representing numerous families who fed their infants trusted baby food brands containing toxic heavy metals, as revealed in the February 2021 U.S. House Committee report.

    To read more about the founding members of Calcaterra Pollack, a women-owned law firm, the firm’s advocacy for its clients, and commitment to workplace wellness, click here.

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