Upcoming Trial Could Open Window Into Product Testing

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By Bruce Kaufman

Feb. 24 — The maker of Aqua Dots claims it suffered more than $100 million in damages from product recalls and injury litigation because two labs negligently performed toxicity testing on the toy beads. 

A Feb. 22 ruling resolved what Judge H. Kenneth Schroeder said was a “ridiculous number” of discovery disputes, and steered the suit toward a possible trial date later this year in the U.S. District Court for the Western District of New York.

Top Selling Arts & Crafts Toy for 2007

Toy maker Spin Master Ltd. said both its product testers—Bureau Veritas Consumer Products Services Inc. and Eurofins Product Safety Labs—certified the beads had been subjected to acute oral injection toxicity tests and weren't toxic.

The proper protocol is to require test animals to ingest the bead material, the suit says. But here, the beads were soaked in corn oil and the animals were doused in the oil, it says.

More than 4 million of the toys were recalled by the Consumer Product Safety Commission in 2007 after children ingested the beads and became comatose. The beads contained 1,4-butanediol, a chemical that metabolizes into gamma-hydroxybutyrate, a “date rape” drug.

Maker Lost 2015 Injury Trial

In 2015, an Arizona jury ordered Spin Master and a distributor to pay $435,000 in damages following Ryan Monje's poisoning, in Monje v. Spin Master Inc., D. Ariz., No. 09-01713, 6/18/15 .

That case is now before the U.S. Court of Appeals for the Ninth Circuit, in Monje v. Spin Master Inc., 9th Cir., No. 15-16567, briefs filed 2/22/16.

In 2011, Spin Master paid a $1.3 million civil penalty for failing to immediately report defect information to the CPSC.

Winston & Strawn in Chicago represents Spin Master.

Hughes Hubbard & Reed in Jersey City, N.J., represents Bureau Veritas Consumer Products Services, Inc., the company Spin Master hired to perform animal toxicity testing.

Holwell Shuster & Goldberg in New York represents Eurofins Product Safety Labs, which was contracted by Bureau Veritas to administer the actual tests.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Nicholas Datlowe at ndatlowe@bna.com