The argument that the execs must be the one to choose the foam to be liable is a bit silly. While in some white collar crimes, you will find individual actions by execs, such as in banking and tobacco, that's rarely the case.

Here there's evidence of a coverup- of deaths reported and Phillips choosing to not disclose or recall until forced to.

An argument could be made that until that point, there's no action by the executive that is wrong- though again, it's a medical device so it should be held up to high standards. Once the company had reason to believe that their device could be dangerous, it had a duty to act. Executives were surely notified when there was a liability concern, and the decision not to act on them is the trigger event.

Was it the CEO? Maybe not? Phillips is a huge corporation, but I'd venture a guess that even in a company that size, there's a bit of "pass the buck" and higher up executives knew something of the situation, and if someone knew of deaths, they had a responsibility to look into it.