false omission claim fails for insufficiently alleged facts about crib bumper risks

Corral v. Carter’s Inc., 2014 WL 197782, No. 1:13–cv–0262 (E.D. Cal. Jan. 16, 2014)

Plaintiff sued Carter’s for basically the usual California claims in connection with Carter’s crib bumpers—“a strip of thin padding that is intended to affix to the inside perimeter of an infant’s crib by means of ties or other attachments to the slats that surround the crib. Crib bumpers are sold either individually or as bedding sets.”  The bumpers allegedly pose a significant risk of death or injury to infants, but Carter’s allegedly concealed this and left the false impression that they promote infant safety.

Carter’s does say on the label: “To prevent entanglement or strangulation, position ties to the outside of crib and be sure they are secure. Remove bumper when child can sit up unaided or can pull to a standing position.”  Also, it includes an information sheet that counsels parents to remove “pillows, sheepskins, pillow-like stuffed toys and products not intended as infant bedding from the crib when infants are sleeping,’ [but] it does not recommend removing the crib bumper when the baby is sleeping.” Instead, the sheet counsels avoiding “pillow-type” bumpers, the use of bumpers with ties that exceed nine inches, and bumpers that can’t be fastened securely. This allegedly conceals the serious risks posed even by properly installed bumpers.  (FWIW, the allegations of risk are consistent with everything I read as an expecting parent ninish years ago.)

The complaint alleged that crib bumpers became popular with old-style cribs that used widely set slats, which allowed a baby’s head to become trapped between them. Current cribs correct this flaw, though the complaint didn’t indicate how many old cribs remain.  A number of professional and infant health advocacy groups have advised against the use of crib bumpers, as has the FDA.  The complaint didn’t allege a clear causal connection between sudden infant death syndrome and crib bumpers, but did cite statements suggesting that rebreathing stale air may be contributory to SIDS in some cases and a 2007 study that attributed 27 accidental deaths of children between 1985 and 2005 to bumper pads.

The complaint didn’t allege any affirmative misrepresentation. “Nondisclosure or concealment of a material fact that a defendant was obliged to disclose can be actionable in four situations: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) with the defendant makes a partial representation but also suppresses some material fact.”  

The court first held that Rule 9(b) required Corral to identify with particularity the “fact” that Carter’s was obliged to disclose.  “[A] claim of fraud by omission cannot, as a practical matter, require the same degree of adherence to the ‘who what when and where’ standard imposed by Rule 9(b) on claims of affirmative misrepresentation. However, for a claim of fraud by omission to provide adequate notice to the defendant, there must be a fairly precise statement of what was required to have been disclosed that was not.” Here, Corral claimed that Carter’s was required to “disclose the significant risk that their crib bumpers may cause death, entrapment, and/or suffocation,” even if used as instructed.

The court wasn’t sure that was a “fact” within the meaning of the CLRA.  To establish that this was a risk, Corral needed to allege “at least some evidence that the use of Defendant’s product, as directed, increases the frequency with which the harm will occur.”  The evidence that bumpers caused accidental deaths didn’t specify the type/whether they were the same design as Carter’s, or the contribution, if any, of faulty installation.  The recommendation of safety groups wasn’t itself proof of the alleged substantial increase in risk, but appeared to result from a global assessment that included “the nonzero risk of injury, the lack of any verifiable benefit from the use of crib bumpers and the possibility the product will be installed or used improperly leading to injury.” While Corral’s allegations might establish a number of “facts,” the alleged omission (that Carter’s bumpers are inherently dangerous) wasn’t one of them.  Corral needed a more direct line to infant harm.
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