SEICH v. BOPPY COMPANY LLC (2024)

ORDER

Travis Seich (“Seich”), the parent of infant N.S., brings this products liability action against The Boppy Company, LLC (“Boppy”), for the wrongful death of N.S. Specifically, Plaintiff alleges N.S. died as a result of positional asphyxiation (suffocation) when a day care worker allowed N.S. to sleep in a Boppy Newborn Lounger (the “NB Lounger”).¹ Seich's claims against Boppy include defective design and failure to warn. At issue before the Court is Seich's renewed motion to compel, seeking the production of information relating to a different product, the Boppy Nursing Pillow (the “Nursing Pillow”), and warning information for both the NB Lounger and the Nursing Pillow going back to 2003. Doc. 86. Upon consideration of the motion and response, Doc. 97, the renewed motion is GRANTED IN PART.

I. BACKGROUND

On December 11, 2023, Seich propounded his Third Requests for Production of Documents on Boppy, which included numerous requests for information relating to the NB Lounger and the Nursing Pillow. Boppy objected to producing documents related to the Nursing Pillow on several grounds, including relevance and breadth, and on January 4, 2023, Seich filed a motion to compel, Doc. 41. In the motion to compel Seich argued he was entitled to information relating to the Nursing Pillow because it was a substantially similar product to the NB Lounger. Seich also sought to compel Boppy to produce warning labels for the NB Lounger and the Nursing Pillow dating back to 2003. Boppy argued, however, that the NB Lounger's design changed after 2017, and only the warning labels provided on the style of the NB Lounger at issue are relevant. Boppy, thus, agreed to produce only warning labels for the NB Lounger from 2015 to 2017.

The Court denied the motion as to both matters. Doc. 44. First, with regard to information regarding the Nursing Pillow, the Court found a lack of evidence in the record to show that the products were substantially similar. Second, with regard to warnings on the NB Lounger, the Court determined the parties had not appropriately met and conferred regarding Seich's basis for seeking warnings prior to 2015.² On both of these issues, however, the Court stated that Seich could re-file his motion if he uncovered evidence in discovery showing the products are substantially similar and after a meet and confer. Seich now renews his motion seeking information related to the Nursing Pillow and warning labels dating back to 2003.

II. INFORMATION RELATING TO THE NURSING PILLOW

The Nursing Pillow was manufactured by Boppy in 1989 and is designed with a “U” (or horseshoe) shape, which goes around a seated caregiver's waist for support during nursing or feeding. The NB Lounger was manufactured by Boppy in 2004 and provides a space for a caregiver to lay a child during supervised wake time. The NB Lounger was recalled by the Consumer Product Safety Commission (“CPSC”) in 2021.³ In its response to Seich's renewed motion to compel, Boppy maintains that Seich is not entitled to information regarding the Nursing Pillow because the NB Lounger and the Nursing Pillow are not substantially similar, as they were designed and intended to be used for different purposes.

Seich disagrees and argues the products are substantially similar because they contained the same warnings, were misused in the same way i.e., as a place for a baby to lounge or sleep, and had the same hazard – the possibility of positional asphyxiation.⁴ Seich also argues, in the alternative, that even if the products are not substantially similar, information regarding the Nursing Pillow is nonetheless relevant to show that (1) Boppy failed to do any separate testing for positional asphyxiation on the NB Lounger and instead, simply relied on the testing for the Nursing Pillow and (2) such reliance was misplaced.

As this Court previously stated, the threshold question for any discovery dispute is relevance. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (“Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.”). Rule 26(b) of the Federal Rules of Civil Procedure defines the scope of discovery as including “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In products cases, information relating to a product other than the one at issue may be relevant if the two products are substantially similar. See Hofer, 981 F.2d at 380-81. That, however, is not the only reason information about a different product may be relevant.

Here, the Court agrees with Seich that regardless of whether the Nursing Pillow and NB Lounger are substantially similar, hazard assessment testing and warnings for the Nursing Pillow, particularly as they relate to the hazards complained of by Seich, are relevant.

First, the information is relevant to whether Boppy, in fact, conducted any hazard assessment testing for the NB Lounger. At the time the NB Lounger was manufactured, it was part of Boppy's standard operating procedure to conduct a preliminary hazard assessment (“PHA”) of a new product. Doc. 86-4 at 1. The purpose of the PHA was to identify potential hazards and either guard against or warn against the hazards. Id. It was also part of Boppy's standard procedure to maintain a permanent record of the PHA. Id. at 4. Boppy, however, has been unable to produce and does not have a PHA for the NB Lounger. Although Boppy conducted subsequent hazard assessments on the NB Lounger, which have been produced, none related to positional asphyxiation. Despite the lack of any documentary evidence to show a PHA or any hazard assessment testing for positional asphyxiation was done on the NB Lounger, and the lack of any testimony regarding the particulars of such an assessment, a former Boppy employee and Boppy's current CEO, testified a PHA would have or must have been done on the NB Lounger either because it was part of Boppy's general protocol to perform one or because there was a warning label included with the NB Lounger for positional asphyxiation. See 102-1 at 14-16 (Depo. S. Littlehorn, filed under seal).

Seich argues, however, that the reason Boppy does not have a PHA or any hazard assessment testing for positional asphyxiation for the NB Lounger is because Boppy did not conduct one and simply copied the warning from the Nursing Pillow. Seich, therefore, argues hazard assessment testing, including the PHA, and warnings for the Nursing Pillow are relevant to rebut Boppy's contention that it must have conducted hazard testing on positional asphyxiation. The Court agrees. While Boppy's position may be that it would have conducted hazard testing in the general course, regardless of whether any testing was produced, that does not foreclose Seich from arguing and attempting to prove that an alternative explanation exists.

Also, the Court disagrees with Boppy's argument that to allow Seich to go down this path of discovery would be the equivalent of a fishing expedition. Seich is not simply operating on a hunch; Seich is trying to obtain information to explain why Boppy has produced no hazard testing for positional asphyxiation and Boppy's corporate representatives were unable to testify about the particulars of any such testing. Indeed, Boppy employee H. Gibbons testified both products were used in ways not intended – namely, to allow a baby to lounge or sleep and, thus, some of the work on one product assisted with addressing issues on the other. Doc. 102 at 84 (Depo. of H. Gibbons, filed under sealed). While, as Boppy argues, the fact that both products had the same hazard or could result in the same injury to an infant may not, standing alone, make the products substantially similar; that fact lends credence to Seich's argument that Boppy relied on the testing conducted for the Nursing Pillow when it generated the warning labels for the NB Lounger. Indeed, the fact that Boppy has hazard assessments or a PHA for the Nursing Pillow (a product which predates the NB Lounger by at least 5 years) would certainly raise questions as to the credibility of Boppy's position that it performed similar assessments for the NB Lounger, but simply misplaced or failed to retain documents related to that testing.

Second, documents related to hazard assessments on the Nursing Pillow are relevant to determining whether any reliance Boppy may have had on those assessments in either designing the NB Lounger or determining what warnings might be necessary for the NB Lounger was reasonable. For example, if as Boppy contends, the Nursing Pillow and the NB Lounger are not substantially similar, then it may not have been reasonable for Boppy to have used the same warning label without conducting a separate hazard assessment for the NB Lounger.

As this Court stated in the prior order, Doc. 44, “[t]he Courts have long held that relevance for discovery purposes is much broader than relevance for trial purposes,” and as such “[d]iscovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought has no possible bearing on the subject matter of the action.” Dunkin’ Donuts, Inc. v. Mary's Donuts, Inc., 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001). The Court cannot say that information related to the danger of positional asphyxiation for the Nursing Pillow has no possible bearing on the design defect and failure to warn claims in this case.

Boppy argues, in the alternative, that even if certain information relating to the Nursing Pillow is relevant, the requests at issue are overly broad. On that point, the Court agrees. The requests at issue seek a broad range of documents relating to the Nursing Pillow, and clearly go beyond information related to hazard testing for positional asphyxia and warnings for same. Thus, the Court will grant Seich's renewed motion to compel, but will limit the scope of Requests 8, 10, 12, 14, 25, 28, 30, 32, and 34 to the Nursing Pillow and to the documents requested which are related to the following hazards: (1) a lounging baby may fall asleep; (2) possible suffocation; (3) possible positional asphyxia; or (4) the baby will roll over to a prone position and not be able to self-correct. Boppy shall produce the requested information for the period from the product's inception to 2017.⁵

The Court, however, finds Requests 18, 21, 23, and 36 to be overly broad and irrelevant as they relate, generally, to the design and manufacturing aspects of the Nursing Pillow. Thus, the renewed motion to compel is denied as to those Requests.

III. WARNING LABELS

Seich also seeks an order from the Court compelling Boppy to produce all warning labels relating to the NB Lounger and the Nursing Pillow since 2003.⁶ Boppy argues such information as to the Nursing Pillow is not relevant for the reasons discussed above, and that it has already produced warning labels for 2015 through 2017, which were the labels on the style of the NB Lounger at issue in this case. According to Boppy, the design of the NB Lounger changed in 2017, and thus any earlier warnings are not relevant. Boppy, however, does not state how the design changed.

The Court finds that Boppy should be required to produce warning labels and hazard assessments for the Nursing Pillow and the NB Lounger going back to 2003.⁷ If there are no such documents, then Boppy shall affirmatively represent same. The Court finds this information to be relevant because Seich should be able to discover when Boppy first realized positional asphyxiation was a potential hazard for the NB Lounger and to compare those warning labels with the ones for the Nursing Pillow for the same time period. Furthermore, changes in the warning label over time (or the lack thereof) could bear on the effectiveness or reasonableness of the warning on the subject NB Lounger, as well as the reasonableness of the design or any design changes.

Accordingly, it is ORDERED:

1. Plaintiff's motion to compel, Doc. 86, GRANTED IN PART to the extent set forth herein.

2. Defendant shall provide responsive documents within twenty-one (21) days of this Order.

DONE AND ORDERED this 7th day of February 2024.

FOOTNOTES

1.   There is a dispute regarding whether N.S. was on the NB Lounger at the time of her death. Although the Medical Examiner Report indicates N.S. was placed to sleep in a supine position on the NB Lounger and found unresponsive several hours later, Doc. 86-3 at 3, Stephanie Williams, the home day-care operator responsible for N.S., testified in a deposition that she laid N.S. down on a flat mat to sleep, and not on the NB Lounger, at the time of her death. Doc. 97-1.

2.   Although the Third Requests seek warning labels without any temporal scope, at the hearing on the motion, Seich's counsel agreed to limit the warnings to a period dating back to 2010. As discussed in section III, infra, however, Seich now seeks those warnings going back to 2003, one year before the NB Lounger was initially manufactured.

3.   https://www.cpsc.gov/Recalls/2021/The-Boppy-Company-Recalls-Over-3-Million-Original-Newborn-NB_Loungers-Boppy-Preferred-Newborn-NB_Loungers-and-Pottery-Barn-Kids-Boppy-Newborn-NB_Loungers-After-8-Infant-Deaths-Suffocation-Risk

4.   To show the products are substantially similar, Seich relies on (1) a report from the CPSC regarding its testing and analysis of nursing pillows, nursing pillows with characteristics of a lounger, and newborn loungers, Doc. 86-9, which shows that the nursing pillows with characteristics of a lounger and newborn loungers share some similar properties which make them more likely to cause positional asphyxiation; (2) testimony from a medical examiner, Dr. Oleske, in which she states that she has handled many cases where infant deaths from positional asphyxiation were caused by “U-shaped nursing pillows, infant nursing pillows, nursing pillows,” Doc. 86-10 at 48:2-8; and (3) the fact that the warning labels are similar for the two products as well as the labels’ reference to both products as “pillows.”

5.   Although Boppy argued at the hearing that it would be burdensome for the Company to look for documents going back to 1989, Boppy has provided no evidence to support this argument. It is not clear what documents Boppy has, how they are stored, or how difficult they would be to locate and produce. Regardless, given the relevance and importance of the PHA, should one have been performed, and the lack of clarity regarding when Boppy identified positional asphyxia as a hazard, the Court finds imposing any other time frame would defeat the purpose of the requests.

6.   See Second RFPD Nos. 33 and 34, seeking “all documentation related to the development of the warning labels and instructions” for the NB Lounger and the Nursing Pillow, respectively.

7.   Boppy points out that Seich had initially agreed to a period dating back to 2010, and has provided no basis for now seeking to go back to 2003. Seich made that concession, however, prior to taking depositions of Boppy employees regarding a PHA and learning of Boppy's position that a PHA or other hazard assessment for positional asphyxiation must have been done or there would be no warning for positional asphyxiation.

HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE