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Infant Sling Death Lawsuit Ends in $8 Mil. Settlement

By P.J. D'Annunzio, Legal Intelligencer WriterSeptember 5, 2013

 

The mother of a child who died in a shoulder-sling infant carrier has agreed to settle her lawsuit with the manufacturer of the carrier for $8 million.

Anthoinette Medley, the mother of Nelsir Scott, and Infantino LLC, a maker of products for infants and babies, agreed to settle last week, according to the mother’s attorney. The suit had been filed in the Philadelphia Court of Common Pleas.

The SlingRider, an infant carrier manufactured by Infantino, is also responsible for the deaths of three other babies, according to the plaintiffs pretrial memorandum.

Alan M. Feldman, managing partner of Philadelphia-based Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, represented Medley.

In Medley v. Infantino, Medley alleged that the flawed design of the SlingRider caused the suffocation death of Medley’s infant son, Nelsir, according to the plaintiffs pretrial statement.

On February 20, 2009, Medley carried her twin sons, then-seven-and-a-half-week-old Tamir and Nelsir, in two separate SlingRiders (purchased at K-Mart and Wal-Mart stores, respectively) to a Women, Infants and Children appointment, traveling by bus to the appointment and then by trolley to the Gallery in Center City afterward, according to the statement.

After running into a friend at the Gallery, Medley noticed several drops of blood on Nelsir’s bib and “immediately went into a restroom to check on him,” plaintiffs court papers said.

When she realized she could not awaken Nelsir, Medley ran out of the restroom screaming for help, and entered a McDonald’s where she proceeded to perform CPR until the arrival of emergency medical technicians, according to the plaintiffs pretrial statement.

After being transported to Thomas Jefferson Hospital, Nelsir was pronounced dead, and Medley was interviewed by a Philadelphia Police Department detective and a social worker, according to the plaintiffs court papers.

Nelsir’s body and the SlingRider were transported to the Philadelphia Medical Examiner’s Office, where an autopsy was performed, prompting Assistant Medical Examiner Gary Collins to file a MECAP (Medical Examiners and Coroners Alert Project) report arising from his suspicion that the SlingRider may have been related to Nelsir’s death, according to the statement.

The official cause of death was concluded to be “undetermined,” according to the statement.

The plaintiff alleged that “the unsafe design of the Infantino SlingRider created a potentially lethal impairment of an infant’s ability to breathe,” and that in 2010, Infantino, after recalling the product, admitted that the SlingRider presented a “risk of suffocation” when used with infants younger than four months.

The plaintiff also alleged that Infantino had performed no testing on the SlingRider prior to marketing and selling the product to determine whether the product was safe for use with infants, and that Infantino falsely claimed compliance with industry standards in order to promote SlingRider sales.

“This claim was intended to suggest to consumers that the SlingRider was safe and thoroughly tested, and that it met applicable safety standards in the United States and Europe. In fact, Infantino knew this claim was false,” the plaintiffs pretrial statement said. “It had actual knowledge that the [American Society for Testing and Materials] standard expressly excluded sling-type carriers like the SlingRider from the standard and further knew that the European standard did not apply to slings.”

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When complaints posted by consumers on various retailers’ websites arose, according to the plaintiffs papers, Infantino chose to ignore the “literally hundreds of negative reviews” detailing the product’s capacity to position an infant in a C-shape, a chin-to-chest position that limited an infant’s ability to breathe.

According to the statement, in 2006, M’Liss Stezler, a trained pediatric nurse and instructor in “babywearing” for mothers and caregivers, conducted independent research using a pulse oximeter to demonstrate how the SlingRider’s design impaired oxygen saturation levels of infants deep within the pouch, and repeatedly emailed the results and warnings to Infantino.

Her warnings were met with “generic responses” and “deliberate indifference,” the plaintiff alleged.

The plaintiff further alleged that in filing for a patent for the newer “Air Sling” infant carrier model in 2008, Infantino admitted safety problems with “prior art,” and that Michael Parness, Infantino’s director of product development, admitted in 2006 that there was “some validity” to the complaints of caregivers.

According to the plaintiffs pretrial statement, Infantino did not issue a recall of the SlingRider until a fourth SlingRider-related death was reported – exactly a year after Nelsir died – on February 20, 2010.

“It is not disputed that Nelsir Scott was a healthy and thriving seven-week-old child when he suffocated to death in the SlingRider,” the plaintiffs pretrial statement said. “Infantino may also contend that Anthoinette Medley ‘misused’ the product because she was wearing one SlingRider on each shoulder to carry each of the twins. It is, however, undisputed that Infantino never warned against this practice, and its instruction on the subject of use with twins are silent.”

In Infantino’s pretrial statement, it noted that Medley “violated most, if not all, of the SlingRider’s product instructions on the day in question.”

Infantino also argued that Medley had testified that she had been carrying the twins in two separate SlingRiders, but emergency medical personnel who were on the scene testified that Medley had been carrying both twins in a single SlingRider.

According to Infantino’s statement, the SlingRider was designed to be worn by one person with only one sling, claiming that the product instructions warned to that effect.

Infantino also claimed that the cause of death was ruled to be “undetermined,” and that there was no identification of asphyxia, suffocation or other cause of death at the autopsy.

According to Infantino’s counsel, Walter Swayze III of Segal McCambridge Singer & Mahoney, all other defendants except Infantino were dismissed from the suit.

Initially the suit was against Infantino, Wal-Mart Stores East Inc., Wal-Mart Store No. 2141, Steve Myers, Sears Holdings Corp. doing business as K-Mart Corp., K-Mart Corp. of Pennsylvania LP and Jeffrey Weiss.

The settlement consisted of an $8 million lump sum, with allocations to be made between survival and wrongful death claims, Feldman said.

“Infantino denied liability from the inception of this case and while it was prepared to take the case to trial, nonetheless agreed to settle the case given its unique facts, the court in which it was pending, and the fact that payment on its behalf was covered by Infantino’s insurance,” Swayze said.