Aqua Dots 'date-rape-drug' trial begins in Phoenix

Eight years after their toddler swallowed beads from a popular toy, Mark and Beth Monje got their chance in federal court to argue that the companies that designed, distributed and sold the product were responsible for their boy getting sick.

Trial began in U.S. District Court in Arizona on Tuesday to determine who is responsible for why the popular Aqua Dots toy beads were coated in a substance that became harmful for kids.

The Monjes have sued Toys R Us, Inc., the U.S. company that sold them Aqua Dots, Canadian firm Spin Master LLC and its U.S. subsidiary, which distributed it, and Australian firm Moose Enterprise Pty. Ltd., which designed it.

The family is seeking unspecified damages, including punitive damages.

Both sides agree that a harmful chemical got on the toy and it sickened Ryan Monje, who was 16 months old when he swallowed some beads on July 16, 2007. The beads were manufactured in China by JSSY Ltd and all parties involved in the lawsuit admit they contained a chemical that turns into GHB, also known as the "date-rape drug," when metabolized.

In the courtroom Tuesday and in court documents earlier, Toys R Us, Spin Master and Moose all said the Chinese firm bore most of the blame for switching one chemical for a cheaper one without telling them.

What is in dispute is the extent to which the firms knew about the switch, took reasonable precautions to protect consumers like the Monjes, and the extent of damages to which the Gilbert family is entitled.

The Monjes' attorney, Melanie McBride, told the jury of five men and three women that Moose did nothing to find out which compounds would make kids sick and in what quantities, nor reformulate the manufacturing ingredients.

Richard Mear, representing Toys R Us and Spin Master, said his clients had to stand up for themselves because they "did nothing wrong."

"Just as the Monjes relied on this toy being safe, Spin Master relied on it being safe," he said.

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Mear laid out his case that before the family bought the toy in June 2007, none of the distributors had any reason to expect a problem. Mear noted that Aqua Dots had been on shelves in Australia under another name for seven months without incident and had been named toy of the year.

The problem, both parties agreed, originated in the Chinese factory. There, JSSY, which is not named in the lawsuit, substituted the chemical 1,5 pentandiol with 1,4 butanediol, they stipulated in court.

The substitute, McBride argued in court, was cheaper and worked better. But 1,4 butanediol, once eaten, metabolizes into GBH, a drug popularly known as the "date rape drug," which in sufficient quantities can be toxic.

"No one was testing for 1,4 because nobody knew it had been slipped in by JSSY," Fox said.

He told jurors experts in global supply chain, Chinese manufacturing and product quality control will testify that Moose had no reasonable way of knowing about the deception and acted responsibly.

Two U.S. children were reported as falling into a comatose state after eating Aqua Dots, in 2007, the U.S. Product Safety Commission reported when it issued a recall notice in November that year. By then, an estimated 4.2 million units had been sold in the United States.

Since the scare, Moose has added an agent that makes the beads taste bitter, jurors were told. It continues to be sold in numerous countries, including the U.S., under different names: Beados, Aqua Beads or Water Beads.

The case is scheduled to go to the jury late next week. Jurors will have to weigh competing appeals.

Fox acknowledged it.

"You committed to treating my client as fairly Mr. and Mrs. Monje. That's hard. I get it. Corporation versus a little boy? Doesn't seem right," Fox said. "But sympathy won't play a role in how you decide the case."