Evenflo Playard Mattress Pad Found Defectively Designed in an Infant's Suffocation Death, With the Judgment Later Reversed on Appeal

On the morning of April 21, 2010, the Karows' seven-month-old daughter was dropped off at the small San Mateo County daycare she attended while both of her parents worked. An assistant gave her a bottle and put her down for a nap in an Evenflo playard, placing her on her stomach with her face turned to one side. When the daycare's owner checked on her later, the baby was face down, pale and without a pulse. Paramedics got her to the hospital and staff there regained a pulse, but about 36 hours after she was found she was removed from life support and died.

The San Mateo County coroner's office investigated and concluded the death was sudden infant death syndrome, and the pathologist who performed the autopsy agreed. David and Tiffany Karow sued the daycare owner and her business, and a year later added Evenflo Company, Inc. to the case. The claims against the daycare owner resolved before trial, and the case went to a jury against Evenflo alone on a products liability theory.

The family's case was that the fabric covering the mattress pad at the bottom of the playard was close to impermeable to air. Their lab tested cover material from the playard model in question and from roughly thirty other playards using ASTM test method D737, which measures how much air passes through a textile under controlled conditions. Evenflo's fabric let through less air per minute than the fabric on most of the others. A pediatrician who specializes in sleep-related infant death testified that the baby died of positional asphyxia rather than SIDS, and that the material ballooning around a baby's face was like having a plastic bag over it. A forensic pathologist testified for the family as well.

Trial was held in the Superior Court of San Mateo County in Redwood City. On March 17, 2016, the jury returned a special verdict for the family on design defect under both the consumer expectation test and the risk benefit test, voting 10 to 2, and awarded $8,000,000 in wrongful death damages, $4,000,000 to each parent. The jury hung on a companion negligence claim against Evenflo and the court mistried that count. The family was represented by Joshua S. Markowitz, Joseph W. Carcione Jr. and Joshua J.K. Henderson, then of Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione in San Mateo, the firm that is now Carcione, Henderson & Markowitz, LLP. Evenflo said it stood behind the design of the mattress pad, was confident the pad did not cause the death, and was weighing its options, including an appeal.

Evenflo appealed. On November 20, 2018, the First District Court of Appeal, Division One, affirmed the jury's special verdict findings but reversed the judgment, holding that the trial court committed prejudicial error when it refused to instruct the jury on comparative fault on the theory that Evenflo had waived the defense during an off the record conference in chambers. The court remanded for a new trial limited to whether the daycare owner, her assistant and the daycare were negligent, whether any such negligence caused the family's loss, and the percentages of fault attributable to them and to Evenflo. The opinion was not certified for publication. It was modified on December 13, 2018, and rehearing was denied, with no change in the judgment.

At the time of trial, no federal rule or industry standard required the top layer of an infant playard mattress pad to be breathable, and the family's counsel argued publicly for one after the verdict.