Tainted Toys from the People's Republic of China: Keeping Products Liability Litigation Inside U.S. Borders

The year 2007 will long be remembered as the year of the Chinese toy recall, as millions of toys from the People's Republic of China were pulled from the shelves of U.S. retailers when it was discovered the imports were contaminated with lead paint or other powerful toxins. For product liability attorneys, the difficulties began immediately when they learned of virtually insurmountable barriers to reaching Chinese defendants through the courts in China. Not only is it nearly impossible to identify the proper Chinese entity, but navigating through a legal system that is hostile to the litigation methods so integral to the U.S. legal process is even more daunting. Prominent attorney Andrew Carboy addresses these hurdles and recommends pursuing Chinese toy recall litigation in the U.S. courts by focusing on the domestic importers, wholesalers, and retailers of the tainted toys. He also discusses the emerging tort remedy of medical monitoring for those plaintiffs exposed to lead hazards.
Carboy writes:   "Expanded tort remedies in the area of medical monitoring may present new opportunities for attorneys representing children who play with toxic imports. In recent years, courts have certified medical monitoring classes for those exposed to lead hazards. A West Virginia court certifying such a class, in claims against the operators of a smelting operation, noted lead’s status 'as a probable human carcinogen' and a cause of 'permanent neurological effects,' particularly in children.  Monitoring those potentially exposed to lead is appropriate, among other reasons, because the 'latency…for diseases from heavy metal exposure can be decades.'"
"Due to the multiple, and virtually insurmountable, problems of suing Chinese toy manufacturers in the U.S. courts," Carboy continues, "American attorneys contemplating products liability actions involving lead-tainted (or otherwise defective) Chinese-manufactured toys, should focus on bringing actions in the U.S. Courts against the American importers, wholesalers, and retailers of the Chinese-manufactured toys. Armed with evolving damage remedies and a well-established body of tort liability theories, attorneys representing children in such actions may not only realize compensation for their clients, but may also deter the influx of cheap and dangerous toys into the United States."