Product Liabi l i t y Toy Recalls Another Medical Monitoring “Lead”

By Victoria Davis Lockard Balloon? and Colin K. Kelly

Children’s products What do Barbie™, Elmo™, SpongeBob SquarePants™, recalls may revive Curious George™, Dora the Explorer™, and Thomas the what has been a Tank Engine™ have in common? In the past six months, national lull in medical millions of children’s toys bearing one or more of these popular characters have been the subject of How can a class action organize so swiftly monitoring claims. massive recalls by the Consumer Product after a recall that involves only potential Safety Commission (CPSC) due to “- (rather than actual) lead exposure injuries? ous” or “excessive” levels of lead contami- The answer is simple: medical monitoring. nated paint. Although toy recalls are fairly Putative class action representatives are not common, the frequency and magnitude of seeking actual damages for recent lead paint-related toy recalls has gar- injuries; rather they are seeking to estab- nered international mass-media attention. lish a compensation program that would If you think it is too soon to discuss the cover the costs associated with monitoring possible litigation fallout from the recent re- the risk of future health problems in young calls—think again. A class action “tri-fecta” children as a result of lead exposure from is brewing that involves innocent children, a recalled toys. See, e.g., id. at 8. dangerous , and deep-pocketed man- Whether you defend marketers, manu- ufacturing companies. Class action attor- facturers, or retailers of toy products, or if neys are circling the wagons and at the time you do general toxic defense work, this of this publication more than 10 major pu- article will help you navigate the current tative class actions have already been filed. toy recall madness with an emphasis on See, e.g., Class Action Complaint of Ann L. how the recalls may attempt to revive what Mayhew, as mother of Hannah Elizabeth has appeared to be a national lull in medi- Mayhew v. Mattel, Inc., Fisher-Price, Inc., cal monitoring class actions. and Target Corporation, Case No. 2:07-CV- 05126-DSF-AJW, U.S.D.C. (C.D. Cal. filed A Lead Paint “Primer” August 7, 2007) (the “Mayhew Complaint”). Paint manufacturers used lead carbonate

n Victoria Davis Lockard is a partner with Alston & Bird LLP in Atlanta where she concentrates her prac- tice in the areas of , toxic and other complex litigation. Ms. Lockard is an active member of DRI’s Product Liability and Drug and Medical Device Committees, and she is on the Steering Committee for the Young Lawyers Committee. Colin K. Kelly is an associate with Alston & Bird LLP where he focuses his practice in the areas of products liability, toxic torts, and complex commercial litigation. Mr. Kelly is a member of DRI’s Product Liability Committee, Drug and Medical Device Committee, and Young Lawyers Committee.

80 n For The Defense n December 2007 © 2007 DRI. All rights reserved. pigments in a variety of internal and external Profile for Lead (August 2007), at 21. Yet, standard that required corrective action paint applications during the first half of the it has only been in the past several decades for any jewelry that contained more than twentieth century. Unlike other industries that there has been an established asso- 175 μg of lead (using one testing method) plagued by conspiracy claims for purport- ciation between low dose lead exposure and 600 ppm lead (using another testing edly withholding health information from (defined as less than 20 μg/dL of lead in the method). See CPSC, Feb. 3. 2005 Interim the public (i.e., ), lead paint man- blood) and a variety of adverse health prob- Enforcement Policy for Children’s Metal Jew- ufacturers participated in public awareness lems in humans—especially in children. elry Containing Lead, at 2. For unknown campaigns in the 1920s and 1930s to alert Id. Like , asbestos, and other pur- reasons, there was little media attention or doctors and consumers about the potential ported “,” traces of lead likely can be major litigation activity about lead-based health of exposure to lead. See Scott found in all of us. The dose, as they say, is paint in children’s toys for several years fol- A. Smith, Turning Lead into Asbestos and To- what makes the poison. lowing the 2004 recalls. bacco: Litigation Alchemy Gone Wrong, 71 Even in relatively small doses, lead can In the winter of 2006 and spring of Def. Couns. J. 119, 121 (2004). In the mid- affect the central nervous, hematological 2007, some highly publicized quality con- 1950s, most paint manufacturers voluntarily and cardiovascular systems of adults. Lead trol issues surfaced with imported prod- phased out the use of lead pigments in favor poisoning in children manifests itself very ucts manufactured in China. Almost every of titanium dioxide and other substitutes. differently than in adults. An overabun- month, new media reports surfaced about From the 1950s through the 1970s, state dance of lead in a child’s bloodstream has quality control concerns related to imported and federal agencies began to take a closer been associated with a host of neurobehav- Chinese goods, including contaminated pet look at the wider health risks posed by lead ioral problems. For example, prospective food, defective automobile tires, tainted and, in 1977, the federal government banned studies suggest that an IQ decline of one to agricultural products, and finally, exces- lead-based paint in residential and con- five points is associated with an increase sive levels of lead in surface paint used on sumer products altogether. See 16 C.F.R. pts. in PbB of 10 μg/dL in children. Some rela- children’s toys. The CPSC was active (crit- 1303.1–1303.5. Despite a comprehensive lead tively recent studies have tracked neurobe- ics say not active enough) in working with paint ban, it has been estimated that lead- havioral deficits in children with PbBs less companies to recall millions of consumer contaminated paint still adorns the walls, than 10 μg/dL (an apparent lack of thresh- goods tainted with lead paint. frames, and interior/exterior surfaces of an old down to the lowest PbBs). Lead poison- Under the Consumer Product Safety Act estimated 38 million housing units in the ing in children also can manifest itself with (“CPSA”), 15 U.S.C. §§2057–58 and 16 C.F.R. United States. See David Jacobs et al., The non-specific symptoms such as malaise, 1303.1 et seq., the CPSC can ban the sale, im- Prevalence of Lead-Based Paint Hazards in forgetfulness, irritability, lethargy, head- portation or distribution of a variety of con- U.S. Housing, Environ. Health. Persp. 110:10 ache, fatigue, dizziness, weakness, and sumer products if they contain hazardous (October 2002) at A599. The presence of lead paresthesia. As you would expect, each of levels of lead. See 15 U.S.C. §2052(a)(1) (def- paint on buildings and surfaces built prior to these general complaints can be attributed inition of “consumer product”). For more 1978 has been the subject of numerous law- to a hundred other health reasons, none of than 30 years, the CPSC (subject to some suits. See summary at http://www.leadlawsuits. which relate to lead exposure. The fact that exceptions) has banned paint containing com/. In fact, much of the toxic tort litigation lead exposure in children produces highly greater than .06 percent lead by weight, toys involving lead to date has historically cen- non-specific symptoms may become a very and other articles intended for use by chil- tered around suits against paint manufac- important fact in the feasibility of medi- dren that contain lead paint, and furniture turers and premises owners—rather than cal monitoring claims aimed to prevent or with lead-containing paint. 16 C.F.R. pts product manufacturers who used lead paint. “cure” lead exposure injuries associated 1303.4(a)–(c). Additionally, under the Fed- See, e.g., Lewis v. Am. Cyanamid Co., No. 1- with contaminated toys. eral Hazardous Substances Act (FHSA), the 05-0974, 2006 WL 701981 (Ill. App. Ct. Feb. CPSC regulates certain broader “hazardous 1, 2006) (upholding summary judgment on Toy Recall Timeline substances” including products that contain all tort claims except conspiracy—against Concern with lead paint on the surface of toxic quantities of lead. See 15 U.S.C. §1261 manufacturers and distributors of lead paint children’s toys is not a just a recent phe- et seq.; see also 16 C.F.R. part 1500 et seq. in medical monitoring class action). nomenon. On July 8, 2004, the CPSC, with Although there are several definitions and the cooperation of four large importing exceptions, a product or substance is essen- Lead in the Blood companies, recalled 150 million pieces of tially “toxic” under the FHSA if it can pro- The adverse health effects of excessive novelty jewelry from vending machines all duce personal injury or illness in humans amounts of lead in the human bloodstream over the United States due to the discovery (including children) when inhaled, swal- (blood lead concentration levels are referred that these products contained excessive lowed, or absorbed through the skin. See to as “PbBs”) have been widely studied in amounts of lead. At the time, this was one 15 U.S.C. §1261(g); 16 C.F.R. 1500.3(b)(5). both adult and child populations for nearly of the largest child toy recalls in American Hence, virtually any consumer product ac- 100 years. The Centers for Disease Control history. The CPSC sprang into action with cessible to children that contains hazard- and Prevention (CDC) reports that the gen- a strong policy aimed at reducing potential ous amounts of lead could be subject to the eral toxic effects of lead have been known lead exposure through contaminated jew- FHSA. 15 U.S.C. §1261(q)(1)(A) (defining a for “centuries.” See ATDSR Toxicological elry. The CPSC instituted a rigorous testing hazardous substance as “any toy, or other

For The Defense n December 2007 n 81 Product Liabi l i t y article intended for use by children, which Company recalls 79,000 “Pirates of the a recalled Dora the Explorer™ toy filed a is a hazardous substance, or which bears Caribbean” squeeze lights due to exces- class action in the Southern District of New or contains a hazardous substance in such sive lead in surface paint. Dollar Gen- York against many of the same Mayhew manner as to be susceptible of access by a eral stores recall 192,000 key chains due defendants seeking a variety of remedies child….”). Even a household product that to lead concerns. including recoupment of “medical testing is not intended for children but otherwise • October 9, 2007—Kahoot Products, Inc. costs” for lead poisoning. See Class Action creates “a risk of injury” due to lead contents recalls 1.6 million cub scout badges due Complaint of Farrah Shoukry v. Fisher-Price would require precautionary labeling under to excessive levels of lead paint. Inc. and Mattel, Inc., No. 1:07-CV-01782- FHSA. 15 U.S.C. §1261(p). The key under the • October 25, 2007—Dollar Tree Stores, DLC, U.S.D.C. (S.D.N.Y. filed Aug. 10, 2007) FHSA is not whether the product contains Inc. recalls 198,000 children’s metal jew- (the “Shoukry Complaint”). These putative any lead, but whether it contains it in large elry products due to high lead levels. class actions have several common ques- enough quantities to cause illness. 15 U.S.C. WeGlow International recalls 110,000 tions of law or fact including (1) Whether §1261(g); 16 C.F.R. 1500 et seq.; compare 16 lead contaminated jewelry items this the defendants negligently and/or fraud- C.F.R. part 1303.1 et seq. same day. ulently manufactured, distributed, mar- Starting in June 2007, widespread lead • November 8, 2007—Marvel Toys recalls keted, tested and/or sold the recalled toys; paint concerns with Chinese manufactured 175,000 Curious George™ plush dolls (2) Whether there is an increased risk of toys began surfacing. Below is a quick time- due to excessive lead on the plastic face serious health problems in young chil- line of the major (i.e., those involving 50,000 surface of the toys. Over 405,000 other dren as a result of the lead contamination products or more) lead paint toy recalls that children’s toys are recalled this same in the recalled toys; and (3) Whether an have taken place so far this year: day due to lead concerns by Dollar Gen- increased risk of serious health problems • June 13, 2007—RC2 Corp., (maker of eral, Schylling Associates, Inc., Northern in young children makes periodic medi- Thomas the Tank Engine™ trains and Tool & Equipment Co., and International cal examinations or testing an appropri- accessories) recalls 1.5 million wood Sources, Ltd. ate remedy. Mayhew Complaint at 8, 14–15; trains and products due to high levels of • November 21, 2007—Pure Allure recalls Shoukry Complaint at 8–9, 17. Despite the lead in surface paint manufactured in 200,000 metal jewelry items sold at lofty goals, the real purpose of these law- China. Michaels Stores (for children and suits is to establish a court-administered • August 2, 2007—Mattel, Inc. recalls 1.5 adults) due to excessive lead. Family trust fund to pay for medical monitoring million (970,000 of which were imported Dollar Stores also recalls 205,000 jewelry costs for all purchasers of the recalled toys into the United States) Fisher-Price toys items due to excessive lead. This same due to the alleged increased risk for lead- that contained hazardous levels of lead day hundreds of thousands of children’s related injuries. paint. items were recalled by various smaller These initial lawsuits are just the begin- • August 14, 2007—Mattel, Inc. recalls a companies such as Raymond Geddes ning of what is becoming a wave of pat- quarter-million “Sarge” toy cars (from & Co., the Boppy Company, Buy-Rite tern litigation. In addition to Mayhew, four the Walt Disney Movie, Cars) due to lead Designs, Inc. and Cherrydale Fundrais- additional federal class actions involving paint concerns. ing due to lead concerns. lead contaminated toys are pending in • August 22, 2007—Schylling Associates, Toy importers and manufacturers con- the Central District of California, at least Inc. recalls 66,000 spinning tops and tin tinue to test for lead in their products, four additional class actions are pending pails with Thomas and Curious George™ so it is likely that more toy recalls will be in California and New York state courts, characters due to excessive lead in sur- announced before the year ends. According and at least one class action is pending face paint. Martin Designs, Inc. recalls to the CPSC, more than 40 different types of in the District of Columbia. Creation of 250,000 SpongeBob SquarePants™ toy products have been recalled due to lead an MDL for these cases (after removal of address books and journals due to sim- paint concerns in 2007. the state court actions) is imminent. The ilar lead paint concerns. Attorney General of California has filed • September 4, 2007—Mattel, Inc. recalls Toying with Current Lead its own separate lawsuit against 20 com- 675,000 Barbie™ accessory toys due to Paint Class Actions panies involved in recent recalls for viola- excessive lead levels. Fisher-Price recalls No less than five days after Mattel’s initial tions of state consumer protection laws and 90,000 locomotive toys due to lead paint highly publicized recall of 83 different cate- Congress is getting involved in the investi- concerns. gories of children’s toys (nearly one million gation of lead-related toy safety issues. See • September 26, 2007—RC2 Corp. recalls toys in all), an Alabama mother (on behalf http://www.californiahealthline.org/ and http:// 200,000 additional Thomas the Tank of her child and other plaintiffs similarly appropriations.senate.gov/hearings.cfm for more Engine™ toys manufactured before situated) filed a class action complaint information. April 2007 due to lead paint concerns. against Mattel, Fisher-Price, and Target The number of children who potentially Target recalls 350,000 child gardening Corporation in the United States District could have been exposed to lead from sur- tools and chairs due to violations of fed- Court for the Central District of Califor- face paint (without any present symptoms eral lead paint standards. nia. See Mayhew Complaint, at 2. Three or injury), given the long list of recalled toys, • October 4, 2007—Eveready Battery days later, a Miami woman who purchased is frankly staggering. Despite the number

82 n For The Defense n December 2007 of pattern cases already filed, there is still tain to be incurred as a proximate result that have permitted medical monitoring plenty of room for the filing of other federal of exposure to toxic substance) with Wood have viewed it as a remedy for an already and/or state class actions involving one of v. Wyeth-Ayerst Labs., 82 S.W.3d 849 (Ky. established common law tort rather than the many hundreds of thousands of recalled 2002) (rejecting court-supervised medi- an independent tort claim. See, e.g., Potter, toys manufactured by other defendants not cal monitoring fund for class of Fen-Phen 863 P.2d at 823–24 (costs of medical mon- related to Mattel. Because it is unlikely that a plaintiffs because a tort requires a pres- itoring are a compensable item of damages child would have any present manifestation ent physical injury before a cause of action when “liability is established under tradi- of lead-poisoning injuries from playing with can accrue). tional tort theories of recovery” and where or chewing on contaminated toys, the criti- In general, most courts have been rela- the need for medical monitoring is a “rea- cal and determinative issue in most of these tively cautious about expanding common cases will be whether a sympathetic court law torts to allow medical monitoring rem- somewhere will allow recovery for medical edies for purely latent injuries. See Hinton monitoring costs associated with merely a v. Monsanto Co., 813 So. 2d 827 (Ala. 2001) The key under the FHSA fear of future injury. Understanding how (balancing disadvantages of medical mon- courts are likely to view medical monitor- itoring, the Alabama Supreme Court held is not whether the product ing claims in this context will be the key to that a putative class of PCP-exposed plain- defending future liability claims. tiffs could not recover for medical monitor- contains any lead, but ing costs absent a present physical injury); Background on Medical Badillo v. Am. Brands, Inc., 16 P.3d 435 whether it contains it in Monitoring Class Actions (Nev. 2001) (holding that Nevada does not Many environmental and toxic tort events recognize medical monitoring as a cause large enough quantities very often involve negligible exposure of action for exposure to a toxic substance risks to humans. In these instances, the such as cigarette smoke because it would to cause illness. only manifestation of injury, if any, will lead to a flood of litigation from individ- be latent. Traditional tort claims and civil uals exposed to toxic substances on any damage calculations are geared towards given day). The number of state and fed- sonably certain consequence of a plaintiff’s compensation of present or actual injury, eral courts that have permitted medical toxic exposure and that the recommended not latent injury. Medical monitoring is an monitoring relief absent physical injury monitoring is reasonable”). extension (or a distortion according to crit- is relatively small and includes: Arizona, ics) of traditional tort law in that it provides California, Colorado, Connecticut, District Medical Monitoring Abuse monetary relief where there is only a risk of of Columbia, Florida, Illinois, Montana, The very palpable concern for defendants future injury. New Jersey, Ohio, Pennsylvania, Tennes- (and defense counsel) has always been that Medical monitoring lawsuits, especially see, Utah and West Virginia. See Burns v. widespread acceptance of medical mon- in the form of class actions, have been a Jaquays Mining Corp., 752 P.2d 28 (Ariz. itoring damages would expose product source of controversy among practitioners, Ct. App. 1987); Potter v. Firestone Tire & manufacturers to virtually unlimited lia- judges, and academics alike, because they Rubber Co., 863 P.2d 795 (Cal. 1993); Cook bility, even where the purported plaintiffs represent such a stark departure from tra- v. Rockwell Int’l Corp., 755 F. Supp. 1468 have never and maybe will never demon- ditional tort system rules aimed at compen- (D. Colo. 1991); Martin v. Shell Oil Co., 180 strate any symptoms of injury whatsoever. sating actual physical injuries rather than F. Supp. 2d 313 (D. Conn. 2002); District of This substantial departure from traditional anticipated or future injuries. Compare In Columbia Friends for All Children, Inc. v. tort recovery theory is rich with opportu- re Paoli R.R. Yard PCB Litigation, 916 F.2d Lockheed Aircraft Corp., 746 F.2d 816 (D.C. nities for plaintiffs to game the tort sys- 829 (3d Cir. 1990) (allowing the plaintiffs Cir. 1984); Petito v. A.H. Robins Co., 750 So. tem with false claims in an effort to get a to recover the cost of medical monitoring 2d 103 (Fla. Dist. Ct. App. 1999); Lewis v. windfall recovery, none of which is used for to deter discharge of toxic chemicals and to Lead Indus. Ass’n, 793 N.E.2d 869 (Ill. App. actual monitoring or treatment of disease. encourage the plaintiffs to detect and treat Ct. 2003); Montana Lamping v. Am. Home We all know the crippling effect that unim- symptoms quickly) with Zinser v. Accu- Prods., Inc., No. DV-97-85786 (Mont. 4th paired plaintiffs have had on defendants in fix Research Institute, Inc., 253 F.3d 1180 Dist. Ct. Feb. 2, 2000); Ayers v. Twp. of Jack- the asbestos and silica litigation arena. (9th Cir. 2001) (upholding denial of class son, 525 A.2d 287 (N.J. 1987); Patton v. Gen. Perhaps the most disturbing criticism of certification of a medical monitoring class Signal Corp., 984 F. Supp. 666 (W.D.N.Y. medical monitoring awards is that absent action involving allegedly defective heart 1997); Day v. NLO, 851 F. Supp. 869 (S.D. heavy court administration, plaintiffs can pacemakers); and compare Bower v. West- Ohio 1994); Redland Soccer Club, Inc. v. easily use the monitoring funds for any- inghouse Elec. Corp., 522 S.E.2d 424 (W. Dep’t of the Army, 696 A.2d 137 (Pa. 1997); thing but legitimate medical treatment. Va. 1999) (plaintiffs, who did not allege Craft v. Vanderbilt Univ., 174 F.R.D. 396, For example, in the landmark New Jer- a present physical injury, were allowed to 403 (M.D. Tenn. 1996); Hansen v. Moun- sey Supreme Court case Ayers v. Township recover for medical monitoring damages tain Fuel Supply, 858 P.2d 970 (Utah 1993); of Jackson, 525 A.2d 287 (N.J. 1987) (the if they were necessary and reasonably cer- Bower, 522 S.E.2d at 424. Many of the courts first state appellate decision favoring med-

For The Defense n December 2007 n 83 Product Liabi l i t y ical monitoring claims for toxic tort expo- lead-paint class action despite acceptance ing lower court’s decision to dismiss med- sure), the American Law Institute reported of medical monitoring damages gener- ical monitoring class action claims in lead that the plaintiffs did not end up using ally in Illinois). Conversely, cases against paint class action). No reported cases have their medical monitoring funds for their city housing authorities (for failure to specifically addressed the medical moni- intended purpose ($8.2 million lump sum abate lead-paint in urban dwellings) have toring dilemma facing toy manufacturers divided between 339 plaintiffs). See 2 A.L.I managed to survive class action scrutiny. in the wake of recent recalls. As with pre- Reporter’s Study: Enterprise Responsibil- For example, in Elliot v. Chicago Housing vious attempts at class certification involv- ity for Personal Injury, 379 (1991). Another Authority, No. 98-C-6307, 2000 WL 263730, ing medical monitoring remedies, current informal survey of three Ayers plaintiffs at *15 (N.D. Ill. Feb. 28, 2000), a federal dis- litigants will face continued skepticism noted that one of the recovering parties trict court certified a class action of inner- from courts that are geared toward com- used his recovery to purchase a new house city Chicago Section 8 housing residents pensating present physical injuries and the and several other plaintiffs when inter- (including children) who may have been standard class action hurdles under Fed- viewed did not know that the money was exposed to lead paint in apartment build- eral Civil Procedure Rule 23 (numerosity, meant for medical monitoring costs. See ings. In a thinly veiled attempt to find relief typicality, and impracticability require- George W.C. McCarter, Medical Sue-Veil- for a highly sympathetic class of litigants, ments). In short, despite the potentially lance: A History and Critique of the Medical the Elliot court even upheld the viability large liability concerns raised in recent toy Monitoring Remedy in Toxic Tort Litigation, of a court-supervised medical monitor- recalls, and despite the sympathetic liti- 45 Rutgers L. Rev. 227, 257 n.158 (1993). ing program to test for symptoms of lead- gants (young children and their parents), related disease. Id. at *14. In certifying a there is nothing vastly different about lead Will Lead Paint Class Actions Reverse class of completely non-impaired people, exposure that would substantially alter the a Failing Medical Monitoring Trend? the court quickly pushed aside the pleth- current failing medical monitoring trend. In short, the answer is probably not. Many ora of case law refusing to certify toxic tort observers who have studied medical mon- cases as class actions (due to the individu- Conclusion itoring case trends have concluded that the ality of disease and a failure to satisfy pre- Lead is a perfect example of a fairly ubiq- concept has not gained much momentum dominance requirements of Rule 23(b)(3)) uitous “toxin” linked to a host of potential outside of a limited number of jurisdic- and opined that medical monitoring is and nonspecific physical ailments and inju- tions. This mirrors an overall decline in more of an injunctive remedy rather than a ries. While class action plaintiffs may be class action certifications since 2005. More monetary remedy. See id. at *5–*6, *14. able to find some courts who are sympa- specifically, several nationwide attempts Since Elliot, some courts have moved thetic to medical monitoring class action to certify class actions against lead paint away from treating medical monitoring proposals, it is likely that the majority of manufacturers have been dismissed on requests as injunctive rather than mone- courts will be steadfast in requiring actual Rule 12 or summary judgment motions. tary relief. See, e.g., Sabater v. Lead Indus. injury before allowing cases stemming See, e.g., Lewis v. Lead Indus. Ass’n, 793 Ass’n, No. 00-CIV-8026 (LMM), 2001 WL from lead-paint exposure in toys to push N.E.2d 869 at 873–74 (upholding denial of 1111505, *2 (S.D.N.Y. Sept. 21, 2001) (not- ahead.

84 n For The Defense n December 2007