Lawyer triumphs over Mattel: Indianapolis lawsuit plays part in worldwide recall of 4.4 million of Polly Pocket toys.

Michael W. Hoskins
January 1, 2007
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Indianapolis partner Gordon Tabor with the Tabor Low Group (right) describes the now-recalled Mattel toys that resulted in injury because of the one-eighth-inch diameter magnets in parts of the products (left).The toy giant recalled the product worldwide.

   When attorney Gordon Tabor first took on a product liability case arising in Indianapolis, he instantly knew that it was larger than one little girl.

   He consulted with his two younger brothers, Roy and Jeff – also attorneys at the Tabor Law Firm – and decided to press the case that turned out leading to a multimillion-dollar settlement against toy-making giant Mattel and a worldwide recall of 4.4 million toys.

   "This was a product that needed to be off the market, and we needed to take on Mattel to make that happen," said Tabor, 62, whose been practicing since 1970. "Not only for this little girl but all the other kids with these products."

   His client – Paige Kostrzewski, 7 at the time in July 2005 – had swallowed two tiny magnets from Polly Pocket dolls she ;d gotten days earlier. The 3-inch-tall plastic dolls have magnets inside designed to attach to separate plastic pieces of clothing, such as dresses or pants. Children can attach them by hand or put the pieces into a dollhouse-type part to put on the clothing. Each piece clicks into place, as is referenced in the product name Polly Pocket Quik-Clik Boutique.

   The doll-set products sold between May 2003 and September 2006 and were originally marketed toward children ages 3 to 6, Tabor said.

   In 7-year-old Kostrzewski ;s case, her injuries happened as she put pieces into her mouth to carry them from place to place and inadvertently ingested the 1/8-inch diameter magnets. Within days, she started displaying flu-like symptoms and complaining of abdominal pain, Tabor said. A CAT scan later revealed two items – the magnets – lodged in her small bowel, breaking down tissue and causing peritonitis.

   The toys were bought on a Monday, Tabor said, and a surgery at Riley Hospital for Children happened that following Sunday. Her mother contacted Tabor within the next week.

   Later, Tabor learned that the adhesive used to secure the magnets easily dissolved when children put the pieces in their mouths, he said. In Kostrzewski ;s case, that led to four months of treatment and at least $31,787 in medical expenses.

   The case was filed in California near Mattel ;s headquarters in El Segundo – in part because of Indiana ;s complex product liability statute, Tabor said. A lawsuit here would have been required to target everyone in the "chain of commerce," he said. That includes the product manufacturer in China, the distributor in London, Mattel itself, and the location that sold the product involved in the dispute.

   Instead, Tabor contacted the Consumer Product Safety Commission and in November 2005 filed the paperwork in California because it ;s a more "direct and favorable venue." Mattel counsel came to Indianapolis for depositions in February, and since then they ;ve been negotiating a settle- ment, Tabor said.

   Details have not been finalized by press time for Indiana Lawyer and Tabor declined to discuss a specific settlement amount.

   However, he said part of the settlement included Mattel ;s Nov. 21 worldwide voluntary recall of 4.4 million Polly Pocket products, which entailed eight different types of play sets. About 2.4 million are located in the U.S. that the CPSC has jurisdiction over, he said.

   The CPSC is also investigating other products with magnets that could cause similar injuries, Tabor said. A Washington, D.C.-based advocacy organization, the U.S. Public Interest Research Group, has also warned consumers about magnets as part of its annual "Trouble in Toyland" report.

   "Each case certainly plays a large role and got our attention," said Patty Davis, a spokeswoman for the CPSC. "We ;re glad there are legal remedies out there to bring some of this forward."

   Since Tabor ;s action began on behalf of Kostrzewski, three other children ages 2 to 8 have also reported to have been injured in similar situations, Davis said, and media reports say that a Wyoming family has filed a suit against Mattel for similar injuries to a 6-year-old boy who was playing with his sister ;s play set. The CPSC has 170 reports of magnets coming out of the toys made by Mattel – also the maker of Barbie, Fisher Price, and Tyco-brand toys.

   "We think Mattel recognized early on they couldn ;t defend what happened," Tabor said of Kostrzewski ;s case. "I can ;t speak much what ;s happening with others, but this Indianapolis case started the ball rolling."

   Indiana Lawyer could not reach Mattel attorneys or media representatives for comment.

   Tabor said the recall couldn ;t have happened at a better time: pre-Christmas and during the busiest shopping season of the year. He thinks about his own granddaughter, whom he learned had two Polly Pocket products herself when this case first started.

   "Lawsuits can have a very therapeutic impact in society, and the law serves as a very important role in promoting consumer safety. This case shows that," Tabor said. "Through this, hopefully we can assist in preventing tragedies to children." •

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