California Verdicts

Plaintiff(s):

David Karow (Male), 

Tiffany Karow (Female), 

Estate of Abigail Milagros Karow

Plaintiff Attorney(s):

Joshua S. Markowitz;
Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione;
San Mateo,
CA,
for
David Karow, Tiffany Karow, Estate of Abigail Milagros Karow ■ Joseph W. Carcione, Jr.;
Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione;
San Mateo,
CA,
for
David Karow, Tiffany Karow, Estate of Abigail Milagros Karow ■ Joshua J.K. Henderson;
Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione;
San Mateo,
CA,
for
David Karow, Tiffany Karow, Estate of Abigail Milagros Karow

Plaintiff Expert(s):

Judy Melinek; M.D.; Forensic Pathology; San Francisco,
CA called by:
Joshua S. Markowitz, Joseph W. Carcione, Jr., Joshua J.K. Henderson ■ Lara McKenzie; Ph.D.; Epidemiology; Columbus,
OH called by:
Joshua S. Markowitz, Joseph W. Carcione, Jr., Joshua J.K. Henderson ■ Paul Tres; E.T.S.; Materials Engineering; Bloomfield Hills,
MI called by:
Joshua S. Markowitz, Joseph W. Carcione, Jr., Joshua J.K. Henderson ■ Gordon Damant; Consumer Products; Sacramento,
CA called by:
Joshua S. Markowitz, Joseph W. Carcione, Jr., Joshua J.K. Henderson ■ Rachel Moon; M.D.; Pediatrics; Bethesda,
MD called by:
Joshua S. Markowitz, Joseph W. Carcione, Jr., Joshua J.K. Henderson

Defendant(s):

Evenflo Co. Inc., 

Little House CDC, 

Carmen Mendoza-Madrigal

Defense Attorney(s):

Peter M. Hart;
LeClairRyan;
San Francisco,
CA,
for
Evenflo Co. Inc. ■ None reported;

San Francisco,
CA,
for
Little House CDC, Carmen Mendoza-Madrigal ■ Bernard Gehlhar;
LeClairRyan;
San Francisco,
CA,
for
Evenflo Co. Inc. ■ Joanne Madden;
LeClairRyan;
San Francisco,
CA,
for
Evenflo Co. Inc.

Defendant Expert(s):

Jerry Drobinski;
Engineering;
Tucson,
AZ called by:
Peter M. Hart, Bernard Gehlhar, Joanne Madden ■ Nanci Yuan;
Pediatric Pulmonology;
Palo Alto,
CA called by:
Peter M. Hart, Bernard Gehlhar, Joanne Madden ■ Donald Olson;
Pediatric Neurology;
Medford,
OR called by:
Peter M. Hart, Bernard Gehlhar, Joanne Madden

On April 21, 2010, plaintiffs’ dececent Abigail Karow, 7 months old, was placed on an Evenflo BabyGo Madison Playard mattress pad by Lilian Castro, an employee of daycare provider Little House CDC. Abigail was placed face-down for a nap on the mattress pad. Subsequently, she was found unresponsive. After 36 hours on a respirator, Abigail was pronounced dead. Her death was originally attributed to sudden infant death syndrome, or SIDS, but Abigail allegedly did not have any of the risk factors for SIDS. Abigail’s parents, David and Tiffany Karow, sued the mattress-pad maker, Evenflo Co. Inc.; the daycare center, Little House CDC; and its owner, Carmen Mendoza-Madrigal. Little House CDC and Mendoza-Madrigal settled out of the case prior to trial. Thus, the matter only continued against Evenflo. The Karows alleged that the mattress pad had a design defect in its lack of breathability and that this defect prevented Abigail from breathing when face down. They contended that lab tests showed the mattress pad had almost the same level of permeability as that of a plastic bag. The Karows’ SIDS expert, Rachel Moon, testified that SIDS has been historically over-diagnosed, so suffocation can mistakenly diagnosed as SIDS. The Karows’ expert forensic pathologist stated that a misdiagnosis as SIDS can result from improper investigation of the death scene of the baby since investigators often don’t examine a baby’s sleeping surface to see if it is a surface designed for infant sleeping, such as a playard. She also said that investigators, like most consumers, assume that if it is sold for a baby to sleep on, it must be safe for a baby to sleep on. Evenflo contended that the product was not defective and that Abigail did in fact die from SIDS. Evenflo’s counsel contended that permeability was never an issue with the product and that this is the first lawsuit regarding alleging suffocation despite there being millions of similar products on the market. Counsel also contended that although the Karows alleged that Abigail was placed face down, Mendoza-Madrigal testified at trial that her employee had placed Abigail on her side. She also told the coroner’s investigator and the responding police officer that Abigail had been placed on her side. In addition, defense counsel disputed the testing performed by the plaintiffs’ expert forensic pathologist, who admitted that his testing did not replicate human respiration. Thus, defense counsel argued that Abigail’s cause of death was SIDS, which was also the cause of death found by the coroner. Counsel contended that the only other possible cause of death, besides SIDS, was positional asphyxiation, which would also not show any other symptoms.

Abigail died from asphyxia. She was survived by her parents, a 9-year-old brother, and a 3-year-old sister. The Karows sought recovery for the alleged wrongful death of their daughter. Evenflo’s counsel disputed Abigail’s cause of death, noting that the coroner attributed Abigail’s death to SIDS.

The jury was hung on the negligence claim, and it was mistried by the court. However, the jury found in favor of the Karows on their claim of design defect under the consumer-expectation test and the risk-benefit test. The jury awarded the Karows $8 million for Abigail’s wrongful death.

David Karow: $4,000,000 Wrongful Death: wrongful death damages; Tiffany Karow: $4,000,000 Wrongful Death: wrongful death damages

Judge:

Steven L. Dylina

Demand:

$1,500,000

Offer:

$25,000

Trial Length:

3
 weeks

Trial Deliberations:

4
 days

Jury Vote:

10-2 as to product defect claim

Jury Composition:

6 male/ 6 female

This report is based on information that was provided by plaintiffs’ and defense counsel.