Fisher-Price, Mattel Will Continue to Face Infant Sleeper Suit

Two Utah parents can advance product liability claims against Fisher Price Inc. and Mattel Inc. alleging that deficiencies in their Rock N’ Play Sleeper product caused the death of their infant in 2017, a Delaware court said.

Sarah Ann Bertola and Dallas Bertola have produced sufficient evidence to submit to a jury the question of whether their child suffered conscious pain and suffering, Judge Francis J. Jones Jr., of the Superior Court of the State of Delaware, said in an opinion partially denying the companies’ motion for summary judgment.

The Bertolas sued in 2021, alleging that their child asphyxiated and suffocated while sleeping in an RnP, which the companies sold as an inclined sleeping product intended for day or overnight sleep. The parents say product deficiencies and improper marketing and sale of the RnP as a safe product for an infant to sleep in unattended caused the child’s death.

Jones said genuine issues exist with regard to the couple’s fraud, fraudulent concealment, and negligent misrepresentation claims.

The Bertolas provided sufficient evidence at this stage to prove that the companies had notice of safety issues with the RnP, and had a duty to inform consumers like them of potential deficiencies, the court said.

The parents also adequately alleged that the companies failed to reveal material facts to the public about the RnP’s failure to conform to safe sleep standards in the American Academy of Pediatrics’ Safe Sleep Guidelines, the court said.

Jones also said the couple adequately alleged at this stage that Fisher-Price failed to provide adequate warnings about RnP use, and that a jury should determine if the Bertolas would have opted not to use the product if they received sufficient warnings.

Jones determined, however, that the parents—who were in another room when the child died—can’t raise a negligent infliction of emotional distress claim under Utah law because they weren’t in a “zone of danger.” Under a zone of danger theory, a negligent infliction of emotional distress claims “only allows recovery for third parties put in ‘actual peril’ from the defendant’s breach of duty,” the court said.

In a separate Monday opinion, the court said that the issue of whether the suit is untimely under a two-year statute of limitations should go to the jury. The Bertolas might show that the companies fraudulently concealed the product’s danger, which could require tolling the limitations period, the court said.

Jones also ruled in another Monday opinion that the couple can rely on certain experts’ opinions in this case. Expert testimony concerning conscious pain and suffering, as well as expert testimony asserting that the RnP puts infants in a position that is unsafe for unsupervised sleep is admissible, the court said.

Shelsby & Leoni and Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig LLP represent the Bertolas. Potter Anderson & Corroon LLP and Carton Fields PA represent the companies.

The case is Bertola v. Fisher-Price Inc., Del. Super. Ct., No. N21C-01-115, 4/21/25.