A federal jury has awarded US$435,000 in damages to the parents of an Arizona toddler who suffered critical injuries in July 2007 after swallowing Aqua Dots, the toy beads coated in a chemical that is metabolised as gamma-hydroxy butyrate, commonly known as GHB.
According to evidence tendered to the court, following ingestion of the product Ryan Monje, aged 16 months, suffered seizures, respiratory failure, unconsciousness and lapsed into a coma, resulting in permanent injuries and brain damage.
In the first verdict rendered over the discontinued Aquadots toy, the federal jury found Toronto-based Spin Master, as distributor of the product in the US, and Melbourne-based Moose Enterprise as creator and manufacturer, financially responsible for the child’s poisoning.
The family had been seeking unspecified damages, including punitive damages. US district court judge John Tuchi ruled Wednesday afternoon that the jury would not be allowed to award punitive damages, so the $435,000 the jury awarded Thursday was for pain and suffering, and included $58,000 for Ryan's medical bills.
Both sides agreed that a harmful chemical was present on the toy, and the beads were manufactured in China by a different company named JSSY Ltd, based in Hong Kong. All parties involved in the lawsuit admit they contained a chemical that turns into GHB, and Moose Enterprise and Spin Master’s attorneys maintain JSSY Ltd switched coatings used on the beads without the companies’ knowledge, and it was this unauthorised change that caused the toddler’s GHB reaction.
What was in dispute was the extent to which the firms knew about the switch; whether they took reasonable precautions to protect consumers such as the Monjes; and the extent of damages to which the Gilbert family is entitled. The jury was instructed to assign percentages of fault for Ryan's injuries to all defendant corporations, as well as JSSY Ltd and Ryan's father Mark, who had been watching the child when he ingested the toy. The percentages of fault would determine what percentage of the total damages would be paid by each party.
According to the jury’s findings, Moose is 33 per cent responsible, and also liable for JSSY's 25 per cent because the jury determined JSSY was acting on behalf of Moose's instructions to produce the Aqua Dots. JSSY was found to be 25 per cent liable; Spin Master was 15 per cent and Mark received two per cent liability. The jury did not find fault with Toys R Us, where the Aqua Dots was purchased.
Dana Fox, who represented Moose, had no comment on the verdict. He said during trial his client accepts partial blame for the incident but that there was no evidence Moose knew about the chemical substitution before Ryan Manje ingested it.
Counsel representing Toys R Us and Spin Master, Richard Mear, argued that his clients not only were unaware of the chemical change, but they also were led to believe the toy was safe based on successful testing, and therefore fault must then lie in the testing agencies.
“Neither Spin Master nor Toys 'R' Us designed or manufactured this toy and there is no evidence Spin Master or Toys R Us knew anything that would lead them to believe their warning label was inappropriate,” Mear said.
About a dozen Aqua Dots suits were consolidated before a Chicago federal judge in 2008 for pre-trial purposes. Those cases settled in 2012 for an undisclosed amount, according to court filings. The companies may still face other lawsuits over the game, which was recalled from sale in 2007 in the wake of a string of poisoning reports.
Counsel for the plaintiffs stated that although the jury found in their favour, the Monje family intends to appeal the judge’s decision to bar them from seeking punitive damages against the toy companies, saying the award won’t cover Ryan Monje’s ongoing medical costs.
In 2011, Spin Master recalled 4.2 million units of the toy and agreed to pay a US$1.3 million fine for failing to alert regulators about reports children were hospitalized after swallowing Aqua Dots beads.
In 2007, Aqua Dots – sold under the name Bindeez in Australia – was named Toy of the Year by the ATA and made Wal-Mart Stores list of the 12 best-selling toys.