Wisconsin firm involved in toy gun recall

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A Wisconsin law firm played a major role in the May 17 nationwide voluntary recall of 1.8 million toy guns with tiny darts.

The "Auto Fire Target Set," distributed by Gordy Toys and sold at Family Dollar Stores, caused the 2006 choking death of Desman Young, 10, of Milwaukee, while he was at school. The dart and gun had been purchased by a friend's family at a store in Tennessee a week earlier.

The Consumer Product Safety Commission began investigating within a week of Young's death, said attorney Jay A. Urban, who represented the boy's mother, Rosalind Young, in a wrongful-death lawsuit. However, no recall took place at that time and the agency apparently closed its file.

Urban, of Urban & Taylor sc in Milwaukee, took her case and began his own investigation more than a year later. In working with experts, he discovered the mechanism of the injury was the size and shape of the dart.

Late last year, after another child in Illinois had died under similar circumstances, Urban contacted the Colorado attorney working on that case, Carrie Frank, and then re-contacted the agency to determine why it hadn't recalled the toy. At that time, he didn't realize that the CPSC had investigated years ago.

By then, Urban had already settled the lawsuit on terms favorable to Young.

An aspect of the case that made it challenging was that the actual dart that killed the boy had been destroyed by the medical examiner. Thus Urban had to search for exemplars of the toy in area dollar stores – the actual product was no longer on the shelves. He was able to obtain the actual gun and some other darts from the school's counsel, since the death had happened at the school.

He discovered that the toy had been made in China. Its distributor, Gordy Toys, had once been one of the largest toy dealers in America and was a long-time company. But it became harder to track down as the lawsuit progressed. All its phone numbers had been disconnected over the course of a few months — at the corporate office in New Jersey, the CEO's office in Texas, the distribution center in Missouri and its parent company in Las Vegas. Urban used Google Earth to view the addresses he'd been given. The CEO's office was a post office box in a strip mall, while the Missouri location proved to be a vacant lot.

While Gordy Toys' role in the recall is uncertain, his client's settlement has been paid, Urban said. Family Dollar, however, has been cooperative with the recall.

The bigger issue the recall raises, according to Urban, is the choking danger many toys on the market still present. Choking on small parts in toys has been a leading cause of toy-related deaths and injuries for 20 years.

"Almost 200 children have died in the past two decades. Since 1979, the CPSC has banned small parts in toys for children under three, and in 1994, legislation required additional warnings for ages three to six," he said.

In Urban's estimation, that's not enough to protect America's children. Australia, for example, has banned toys like the recalled dart set since 2002.

"A child's windpipe is about same size as their pinky finger. Thus small parts getting stuck can occur with older children," said Urban. "A small-parts ban needs to be effective for any age that a part could get stuck and cause harm. Like Australia, small darts like the one that killed Desman need to be banned for all ages."

With regard to the voluntary nature of the recall, Urban said that, to the best of his knowledge, all past product recalls have been voluntary. The CPSC has the authority to impose fines and can sue seeking mandatory recalls, but the latter remedy hasn't been pursued.

He views a recall as "a solution of last resort, because once products are in consumer's homes it is difficult to get them out. The better solution is to require that products are safe before they get on store shelves."

Jane Pribek can be reached at [email protected].