No refunds for poison toy yields lawsuit
Posted on Friday, November 16, 2007
A Little Rock couple who bought a now-recalled Aqua Dots toy for their three young children are suing the American distributor of the toy who is refusing to refund their money and offering a “replacement” instead.
“Consumers do not want, nor should they be forced to accept, another toy from the same company that has been irresponsibly marketing and selling poison to their children,” charges the lawsuit, filed Thursday in federal court in Little Rock.
The lawsuit seeks class-action status, in the hopes of representing as many as 4. 2 million consumers across the country who bought the Chinese-made toy that was recalled on Nov. 7 for safety reasons and now can’t get their money back.
The craft toy, which allows children to create various multidimensional designs using small, colored beads, has been sold nationwide since April, retailing for between $ 17 and $ 30, according to the Web site of the U. S. Consumer Products Safety Commission.
A Jacksonville toddler is among children around the globe who have ingested the beads and then passed out or become ill after the beads’ coating metabolized into a chemical compound known as the “date rape drug.”
The boy, 20-month-old Jack Esses, slipped out of consciousness, waking only to throw up, after swallowing the beads on Oct. 30, said his mother, Shelby Esses. He was nearly unconscious when taken to Arkansas Children’s Hospital, but woke up after six hours and was quickly “back to his normal self,” his mother said.
The hospital conducted tests and consulted a toxicologist, who speculated that GHB, the so-called date rape drug, was the only drug to produce those effects.
After the boy’s mother got a list of the chemicals used to make the beads, the toxicologist recognized one that turns into GHB, or gamma hydroxy butyrate.
The compound can induce unconsciousness, drowsiness, coma and even death.
The toys, which have been distributed in 40 countries, were supposed to be made using a nontoxic compound found in glue, but instead were made with a compound widely used in cleaners and plastics that is significantly less expensive than the nontoxic compound.
The lawsuit filed Thursday by attorneys Alex G. Streett and his son, James A. Streett, both of Russellville, doesn’t seek damages for injuries. James Streett said Thursday evening that he didn’t know if lawsuits about the safety of the product have been filed elsewhere.
His clients, Donald C. Erbach Jr. and his wife, Stephanie Streett, both of Little Rock, are the parents of three children, ages 5, 4 and 1. The children, whom James Streett declined to identify by sex, weren’t harmed by the toy purchased from Wal-Mart in the summer, but could have been harmed by the “dangerous defects,” the lawsuit says.
James Streett also declined to say whether the attorneys are related to Stephanie Streett.
The lawsuit names as a defendant Spin Master LTD and Spin Master, Inc., which is based in Ontario, Canada, and has a showroom in Bentonville.
A reporter’s telephone call placed Thursday evening to the Bentonville business was not returned.
“Plaintiffs and class members purchased these toys believing, based upon Defendants’ representations, that the product was safe for their children,” the lawsuit states.
The lawsuit alleges that Spin Master engaged in deceptive conduct in violation of state consumer protection statutes, that it breached an implied warranty of merchantability and that it has been “unjustly enriched” to the detriment, and at the expense, of consumers.
It seeks compensatory and punitive damages, as well as reimbursement for attorneys fees.
The lawsuit has been assigned to Chief U. S. District Judge Leon Holmes.
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