Tainted food and toxic toys

The following information was discussed by Attorney Whitney Hughes on the November, 20th 2007 edition of Legal Briefs on KDKA's Pittsburgh Today Live Show.

The stories are all over the news lately ­ foreign objects found in our food and toxic substances found in our children’s toys. We often get questions about what if anything can be done and where consumers stand legally.

Common Questions:

My son has several of the toys that have been recalled because of the lead they contain. I’m worried that he may become ill from the lead, and I would like to sue the manufacturer. What steps do I need to take?

Lead has been virtually banned from the US since the 1980s. Under current regulations, children’s products with more than 0.6 percent lead accessible to the user are subject to recall.

Lead exposure is especially dangerous for children under 6 because they are still growing, and their brains are developing. Small children often put toys in their mouths, and sometimes inadvertently eat paint chips. If lead is ingested, it can cause behavioral problems, learning disabilities, seizures, and even death. The recalled Fisher Price/ Mattel toys contained lead.

From a legal standpoint, individual lawsuits against the manufacturer can be difficult. The symptoms of lead poisoning often mimic other illnesses. They include irritability, loss of appetite, weight loss, sluggishness, abdominal pain, vomiting, constipation and pallor from anemia. There are often no signs that a child has been exposed to lead, and a blood test is the only way to determine if someone is suffering from lead poisoning. Mild cases of lead poisoning are treated by ending the lead exposure and having the patient submit to follow-up blood tests. Given that many times the amount of exposure to the lead is minimal and the injuries or illnesses are temporary, the amount of money that could be recovered is relatively small.

Class action lawsuits against Mattel, Inc. have been filed in Pennsylvania. Class action lawsuits seek to establish a medical monitoring fund to ensure that any Pennsylvania children exposed to toxic lead paint by Mattel's recently recalled toys can be appropriately tested and monitored.

Anyone who believes his/her child may have <http: mattel-three-tests.html?ref="article"> ingested lead should take the child to the doctor for medical testing.</http:>

Many parents may not even be sure if they are eligible to join a class action lawsuit against Mattel, especially if their children have not shown any symptoms of lead poisoning. However, symptoms and signs of lead poisoning can show up a long time after the initial poisoning occurred.

A lawyer can help you to determine whether or not you are eligible for a class action lawsuit. Simply playing with a toy that has lead-based paint will not elevate a child's blood lead levels. However, putting the toy in his or her mouth can cause problems, as can playing with toys on which the lead paint is flaking.

I purchased a bag of salad at the grocery store and found a dead cockroach in it. How much am I entitled to recover?

Unfortunately, in most circumstances your claim is worthless. You may think that you have been “emotionally damaged” by this bug in your salad but did you actually suffer monetary damages? No. You did not ingest the cockroach nor did you get sick from ingesting the cockroach. But what about emotional distress? In most cases, it is not worth the small claims filing fee. Your best course of action is to call the manufacturer and tell them what happened. They may send you vouchers for free food and maybe even a few coupons. This will compensate you for your losses (having to throw out the salad). This is really all you are entitled to.

My doctor prescribed a medication which has given me horrible side effects. I’ve been hearing news stories that these side effects are common and that the drug may be recalled. Am I able to sue either the doctor or the drug manufacturer?

Remember that the warnings associated with your prescription are there to protect the drug companies from liability and inform users of the risks they are subjecting themselves to. Most side effects are so rare that only a handful of users (out of millions) experience them. Drug companies must list all potential side effects, no matter how rare, to avoid lawsuits based on their failure to warn users.

In order to be able to sue a doctor for the drugs he/she has prescribed you will have to show that the drug was a blatantly inappropriate treatment for your condition, or should not have been prescribed based on your current medical condition. Keep in mind that just because a drug does not work for you or has side effects, does not mean that you are always entitled to a legal remedy.

It sounds like in most cases I’m not able to sue. Why?

An important concept to keep in mind is proof of loss.

In order to have a successful legal claim, you must be able to prove that you have had a loss/injury, and that it is DIRECTLY linked to the product in question. That means that you must be able to show that the illness/injury came from your exposure to the tainted food, lead paint, or prescription drug. Usually this also means being able to show that the problem was not caused by something else.

In addition, you must also have an injury that is significant enough to give rise to a claim, and where the amount you stand to recover is worth spending the costs of litigation.

This is where many consumers are both confused and misinformed. Many people think that they are automatically entitled to a financial reward as soon as they have a problem. That’s not necessarily the case. Keep in mind that while you may have been injured, it may not be significant enough of an injury to justify hiring an attorney.

If you have been seriously injured and it IS due to a defective product or prescription drug, it is imperative that you speak with an attorney to make sure that you are able to file a lawsuit in a timely fashion. This may also mean speaking with an attorney who practices in the area of class action lawsuits to find out how you would be included with the affected class.

As always, if you have had any problems or wish to speak with an attorney regarding tainted food and toxic toys, please contact the Allegheny County Bar Association’s Lawyer Referral Service at (412) 261-5555.