August 11, 2015, PLLR E-Newsletter | The American Association For Justice

August 11, 2015, PLLR E-Newsletter

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Plaintiffs prevail in suit over toy coated with toxic chemical

The plaintiffs alleged that the toy was defective and unreasonably dangerous and that the defendants failed to test it and warn of the danger. The jury awarded $435,000. Monje v. Spin Master, Inc.
 

Mark and Beth Monje purchased an Aqua Dots craft set for their son. The toy consists of small, brightly colored beads that fuse together when wet, allowing children to make designs. The beads resemble candy when dry.

While playing with the set, the Monjes’ 18-month-old son, Ryan, ingested about 50 beads. He began vomiting, and his parents took him to a local medical center. His vomiting continued, and nurses found Aqua Dots beads in the vomit. Ryan’s condition deteriorated, and he began suffering seizures and went into respiratory arrest. He was intubated, but fell into a coma and was airlifted to a children’s hospital. Although he regained consciousness, he allegedly suffered permanent damage to his brain and nervous system. His past medical expenses totaled about $58,000.

The toy was recalled in November 2007, after reports of children becoming poisoned. It was discovered that the beads were coated with 1,4 butanediol, a harmful toxin used in cleaners and plastics. If ingested, the chemical is metabolized into gamma-hydroxybutyric acid (GHB), also known as the “date-rape drug” because of its depressive effects on the central nervous system. More than a dozen children were injured after ingesting Aqua Dots, leading to the recall of more than 4 million sets in the United States.

The Monjes sued the toy’s Toronto-based distributor, Spin Master, Inc., and its U.S. subsidiary, as well as Moose Enterprises Pty, Ltd., the Australian company Spin Master hired to develop the toy. The plaintiffs alleged that the toy was defective and unreasonably dangerous in that it was coated with 1,4 butanediol.

Evidence reportedly showed that Moose Enterprises had contracted with a Chinese firm, JSSY, Ltd., to manufacture the beads. Although the beads were supposed to be coated with 1,5 pentanediol—a relatively nontoxic chemical compound found in glue—the Chinese manufacturer substituted 1,4 butanediol because it was less expensive. The plaintiffs contended that exposure to the chemical caused Ryan to suffer permanent brain damage. They also argued that the defendants failed to test the beads to ensure that they were safe and failed to warn of the danger they posed.

The defendants reportedly acknowledged that the toy was contaminated but denied responsibility, arguing that they had not manufactured the beads. The defendants argued that JSSY never disclosed the substitution of the dangerous chemical and that JSSY and several companies that allegedly tested the toy led them to believe that it was safe. The defendants also argued that Ryan’s father was at fault for failing to properly supervise him. Finally, the defendants denied that exposure to the chemical had caused Ryan to suffer a permanent brain injury and argued that he had made a full recovery.

The jury awarded $435,000, allocating fault at 33 percent to Moose Enterprises, 25 percent each to JSSY and another manufacturing entity, 15 percent to Spin Master, and 2 percent to Mark Monje. The jury also found that JSSY was acting as Moose’s agent. Thus, Moose will also be responsible for JSSY’s share, or a total of 58 percent of the fault. The plaintiffs will reportedly appeal a ruling preventing punitive damages.

Citation: Monje v. Spin Master, Inc., No. 2:09-cv-01713 (D. Ariz. June 16, 2015).

Plaintiff counsel: Melanie G. McBride and Keith A. Gernant, both of Scottsdale, Ariz.; and Scott I. Palumbo, Phoenix.

Plaintiff expert: Richard Parent, toxicology, Damariscotta, Me.

Comment: There was no jurisdiction over Chinese manufacturer JSSY. The case is reportedly the first involving Aqua Dots to go to a jury. In 2012, about 10 consolidated cases settled pretrial for an undisclosed amount.