Posted: August 30th, 2016 | By: Michael Green
Professor Michael Green was featured in the following Philadelphia Inquirer article, “Ikea balks at releasing records tied to deadly dresser recall,” published by Tricia Nadolny on August 29, 2016. The article was also published on Yahoo! Finance Canada.
Two months after a massive dresser recall prompted by the deaths of six toddlers, Ikea is balking at a Philadelphia judge’s order to turn over internal documents it gave to federal safety regulators.
On Monday, the mother’s lawyers asked Judge John Younge to fine Ikea $1,000 a day until it complies with his order.
Experts in product liability called the company’s resistance unusual.
“All of this makes me more and more suspicious there is a smoking gun in there,” said Michael Green, a Wake Forest University law school professor who has represented companies facing product liability suits.
In announcing the June recall of 29 million dressers, Ikea and regulators cited six deaths tied to the dressers since 1989.
Three of the fatal accidents, including the one that killed Curren Collas of West Chester, involved pieces from the company’s popular, low-cost Malm line. Ikea also identified more than 150 products sold over two decades at risk of tipping and, for most, has offered full refunds.
The recall, among the most comprehensive in U.S. history, came after two years of talks between the U.S. Consumer Product Safety Commission and Ikea.
Ikea first attempted to address the threat with a July 2015 repair program that included sending replacement wall anchoring kits to consumers. Another death seven months later prompted new negotiations that led to the June recall.
Collas’ attorneys are now seeking documents from those negotiations.
“It is hard to think of anything more relevant [to our case] than Ikea’s discussions with the CPSC about whether or not this product should be recalled,” said Philadelphia lawyer Alan Feldman, representing the family.
Younge’s July 20 order gave Ikea 30 days to turn over the documents. On Aug. 11 he denied an emergency motion by Ikea to suspend the issue pending the outcome of an appeal the company filed to Superior Court.
The more than 75 documents Ikea has declined to give up span nearly two years and include photos and videos of internal Ikea dresser testing, and scores of emails and letters between the parties’ attorneys, according to a log filed with the court.
There are also items that might shed light on how widespread a threat Ikea dressers have posed, including an email referring to “global” Malm tip-over incidents. Before being pulled from Ikea shelves in June, the Malm line was sold worldwide.
Robert Devine, a Philadelphia lawyer representing Ikea in the case, did not return a request for comment Monday. The company, whose U.S. headquarters are in Conshohocken, said it does not comment on pending litigation.
In court filings, Devine has argued that the documents should remain confidential because Ikea provided them in the course of a voluntary recall negotiation with safety regulators. He argued that if companies knew documents from such negotiations would be handed over in civil litigation, it could “have a chilling effect” on their willingness to be open.
Legal and product safety experts said that in risking sanctions, Ikea appears to be putting up an extraordinary protest.
“It sure looks bad for Ikea,” said Benjamin Zipursky, a professor at Fordham Law School and an expert in product liability law. “The more they do this, the more appellate judges are going to want to know what’s in those documents.”
Pamela Gilbert, a lawyer and a former executive director of the Consumer Product Safety Commission, said she found Ikea’s stance in the case “very troubling,” especially given the company’s earlier attempts to avoid a recall.
“This is another bizarre example of Ikea trying to hide something from the public and not being forthcoming about one of the most important things you would think they would care about – which is the safety of their products,” she said.
The wrongful-death suit filed by Curren’s mother, Jackie, argues that for years Ikea continued to sell dressers it knew were at a substantial risk of tipping onto and injuring children.
The same lawyers represent two other families of children killed in Malm tip-overs.
Ikea contends the dressers are safe when attached to the wall, as the instructions direct. They also have argued that Curren’s parents were negligent in choosing to not anchor their son’s dresser to the wall.
The attorneys for the Collas family have asked that the $1,000-per-day fine, if imposed by the judge, be donated to Kids in Danger, a Chicago nonprofit consumer advocacy group that had pushed Ikea and federal regulators to take the dressers off the market.
“They do good work,” said lawyer Dan Mann, who is also representing the Collas family. “Maybe if people had listened to what they were saying earlier, lives would have been saved.”