As a southern Illinois products liability lawyer, I know that while suing after an injury is often the only available remedy, it’s much better when there’s no injury in the first place. And given human nature, strict regulation is one of the best ways to help consumers avoid injury. Inadequate regulation was at the heart of Bertanowski v. Spin Master, Inc., a Seventh U.S. Circuit Court of Appeals decision centered on defective toys. The toys in question were Aqua Dots, small beads that stick together when sprayed with water. Unfortunately, a Chinese subcontractor substituted a poisonous glue for the glue the manufacturer specified, using GHB, a drug the media has called a “date rape drug” because it causes unconsciousness and amnesia. At least two children ate the beads and fell into comas. About 600,000 out of more than a million defective kits were returned for a non-defective kit, another toy or a refund. Three million more were never sold.
This case centers around claims by a group of plaintiffs who bought Aqua Dots and suffered no injury, but sued to challenge the adequacy of the recall itself. Sarah Bertanowski and others sued Spin Master, Moose Enterprises, Target, Toys R Us and Wal-Mart, alleging violations of the federal Consumer Products Safety Act, breach of express and implied warranties and violations of state consumer protection laws. The cases were consolidated in the Northern District of Illinois. The trial court there denied class certification, saying a class-action case is inferior to a simpler remedy for this class: asking for refunds, which Spin Master had already given out to many customers. The Seventh Circuit authorized an interlocutory appeal.
On appeal, the Seventh quickly dismissed an argument from Spin Master that the plaintiffs had no standing to sue. Though they suffered no physical injury, the financial injury they suffered was adequate to create standing, the court said. It then turned to the merits of class certification. Though it agreed that certifying a class in this case seemed pointless, it chided the trial court for disregarding Rule 23(b)(3), the federal rule for certifying a class, by lumping a recall in with “adjudication.” Instead, the Seventh said, the court should have relied on 23(a)(4), which says a class may be certified only if the class representatives can fairly and adequately protect the interests of the class. Because a class-action lawsuit is much more expensive than participating in the recall, the Seventh found that the class representatives were not adequately representing the class’s interests. It also pointed out that the plaintiffs’ claims for punitive damages could be difficult, given the patchwork of diverse state laws on the subject. And proposed subclasses within each state would still require expensive and difficult notices to each potential class member, the court wrote. Thus, it affirmed the district court’s refusal to certify a class.
As a Missouri defective products attorney, I’m disappointed that these plaintiffs won’t be able to pursue their underlying claim about the adequacy of the recall. The Aqua Dots kits retailed for about $20, so it’s true that the financial payments they could have claimed would be small relative to the expense of the litigation. But protecting the priceless lives and health of their children is probably the class’s true motivation for suing. If the recall was inadequate, as they apparently felt, that’s an issue that has a place in the courts. As a product defects lawyer in St. Louis, I frequently handle cases of dangerous products or failure to warn in which vulnerable people suffer serious and very preventable injuries. If federal regulators don’t do an adequate job preventing injuries like this, a lawsuit is the only redress victims may have.
If you or someone you love suffered a serious injury from a consumer product you believe is defective, you should call Carey, Danis & Lowe right away. For a free, confidential case evaluation, send us an email or call 1-877-678-3400 today.
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