Corporate Counsel Daily, Fisher-Price, Mattel face claims of failure to warn of risks related to infant swings, (Oct 23, 2024)

By Susan L. Smith, J.D., M.A.

A putative class action alleges that the companies knowingly marketed and sold swings that created a suffocation risk for infants.

A woman has brought a class action complaint against the manufacturers of a baby swing, contending that the companies failed to warn consumers that the swing created an unsafe suffocation risk for infants placed in the product. The woman has asked a federal district court in New York to enter an order mandating that Mattel, Inc. and Fisher-Price, Inc. change the design of the Snuga Swing and cure the omission of the suffocation risks on the products’ marketing and labeling. The woman, who purchased the baby swing for her newborn daughter, stated that her daughter fell out of the swing twice. She contends that she would not have purchased the baby swing had she known that the swing presented serous suffocation risks to her daughter. She presents eight causes of action and seeks damages and, in the alternative, restitution (Bigelow v. Mattel, Inc., No. 1:24-cv-00992 (W.D.N.Y. Oct. 17, 2024)).

Background. Mattel and Fisher-Price market and sell Snuga Swings, including several models that are designed to cradle infants and provide both front-to-back and side-to-side motion. More than 2.1 million Snuga Swings were sold in the U.S. online and in brick-and-mortar stores through retailers for an average price of $160. No warnings of the risk of suffocation were included on the packaging or on labels on the products themselves. According to the complaint, the manufacturers were made aware of the risks, having been notified by the Consumer Product Safety Commission (CPSC) in 2014 of a report submitted to CPSC by a woman who stated that her three-month-old son had turned the head support and pillow with his head and his face pressed into the fold. A second report of a similar incident was submitted to CPSC in 2019. The Snuga Swings were recalled by CPSC in 2024. The recall notice included a CPSC statement noting that there have been five reported deaths involving infants of one to three months of age when the swings were used for sleep. The recall provides only $25.00 in potential relief to consumers only if the consumers remove and destroy the headrest and body support insert.

Class action. The woman brought the asserted claims on behalf of: (1) a proposed nationwide class that includes all persons who, within the applicable statute of limitations period, purchased one or more of Fisher-Price’s Snuga Swing products; and (2) a proposed Michigan subclass that includes all persons who, while in the state of Michigan and within the applicable statute of limitations period, purchased one or more of Fisher-Price’s Snuga Swing products. The questions of law and fact common to the proposed class include whether Mattel and Fisher-Price: (1) made false or misleading statements of fact or material omissions in its labeling and marketing of the swings; (2) violated the consumer protection statutes of multiple states, including Michigan; and (3) committed a breach of implied warranties.

Causes of action. Causes of action in the complaint include the following:

Violation of New York Gen. Bus. Law §349. Section 349 prohibits deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in New York. The woman alleges that the conduct of Mattel and Fisher-Price constitutes unlawful deceptive acts and practices in violation of §349 because of their misleading, inaccurate, and deceptive advertising and marketing of the Snuga Swing to consumers through material safety omissions, specifically by failing to inform consumers that the Snuga Swing presents a serious suffocation risk.

Violation of New York Gen. Bus. Law §350. Section 350 provides, in part, that false advertising in the conduct of any business, trade, or commerce or in the furnishing of any service in this state is declared unlawful. The woman contends that Mattel and Fisher-Price’s omissions of the suffocation risks of the Snuga Swings are materially misleading representations because they misrepresent that the swing did not pose a risk to infant users.

Breach of contract. The woman asserts that she and the class members entered into contracts with the companies when they purchased the swings. Under the contracts, the woman and class members would pay for the products and Mattel and Fisher-Price were to provide products that conformed to the description advertised on the website and were free from defects. However, the woman alleges that Mattel and Fisher-Price failed to provide swings that conformed to the description advertised on the website and breached the contract by providing swings that were defective and materially omitted safety risks.

Violation of the Michigan Consumer Protection Act. The Michigan Consumer Protection Act prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct or trade of commerce. The woman alleges that Mattel and Fisher-Price’s sale of the swings constituted trade of commerce. Further, Mattel and Fisher-Price acted deceptively when they marketed and sold the swings without informing consumers of the risks inherent with their use. As a result of the deceptive practices, consumers and members of the Michigan subclass suffered economic harm because they would not have paid the price they paid for the swings had they known of the associated suffocation risks, the complaint maintains.

Breach of implied warranty of merchantability. The Uniform Commercial Code (UCC) Sec. 2-314 states that a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. The woman alleges that a valid contract existed between her and the classes and Mattel and Fisher-Price. Mattel and Fisher-Price are merchants with respect to their swings for children, and the products constitute goods under the UCC. Mattel and Fisher-Price, as the manufacturers, marketers, and sellers of the swings, impliedly warranted to the woman and the class that the products were of merchantable quality and were safe for their ordinary use. The swings, however, were never in merchantable condition and were not fit for children to use while sleeping because they presented suffocation risks, the complaint states. The woman asserts that Mattel and Fisher-Price breached the implied warranty of merchantability when they sold the swings, causing the woman and the class harm.

Breach of implied warranty of fitness. UCC Sec. 2-315 states that when a seller has reason to know any particular purpose for which the goods are required and the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose. Mattel and Fisher-Price allegedly knew or should have known the consumers purchased the swing to soothe their children as they marketed themselves as knowledgeable and effective developers, manufacturers, and sellers of products for children. Further, they knew or should have known that the woman and class members would justifiably rely on their particular skill and knowledge of infant products when choosing to purchase the swings. The swings, however, were not suitable for their intended purpose because they were not safe to use. Thus, Mattel and Fisher-Price breached their implied warranty of fitness concerning the swings and knew of the breach through consumer complaints and reports of infant deaths, the complaint maintains.

Negligent misrepresentation/omission. The woman and class members also contend that Mattel and Fisher-Price omitted crucial information in the labeling and marketing of the swings, failing to disclose the suffocation risk associated with the products. The woman and class members read and reasonably relied on the information provided. Mattel and Fisher-Price’s misrepresentations were a substantial factor and proximate cause in causing damages and losses to the woman and class members, the woman said. Class-wide reliance can be inferred because the misrepresentations were material, she added.

Fraudulent misrepresentation/omission. When Mattel and Fisher-Price made the misrepresentations, they knew they were false and acted recklessly in making the misrepresentations, the complaint asserts. Mattel and Fisher-Price, who had superior knowledge of the swings, intended that the woman and class members rely on the representations, and the woman and class members read and reasonably relied on them. The woman alleges that Mattel and Fisher-Price’s misrepresentations were a substantial factor and proximate cause in causing damages and losses to her and the class members.

Relief. The relief the woman seeks for herself and the proposed class include: (1) an order certifying the asserted claims, or issues raised, as a class action; (2) judgment in favor of the woman and the proposed class; (3) damages, treble damages, and punitive damages where applicable; (4) restitution; (5) rescission; (6) disgorgement, and other just equitable relief; (7) pre- and post-judgment interest; (8) an injunction prohibiting Mattel and Fisher-Price’s deceptive conduct, as allowed by law; (9) reasonable attorney fees and costs, as allowed by law; and (10) any additional relief that the court deems reasonable and just. The woman also demands the right to a jury trial on all claims triable.

The case is No. 1:24-cv-00992.

Attorneys: George A. Donnelly (Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP) for Destini Bigelow.

Companies: Mattel, Inc.; Fisher-Price, Inc.

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