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ARTICLE ID 29608

$________ - PRODUCTS LIABILITY - WRONGFUL DEATH - PLAINTIFFS' CLAIM PRODUCT DEFECT TO DOORWAY BABY EXERCISER DUE TO UNSAFE LOOP STRAP MECHANISM - FAILURE TO WARN THAT EXERCISER SHOULD BE TAKEN DOWN FROM DOORWAY WHEN NOT IN USE - PLAINTIFFS' TWO-YEAR-OLD DECEDENT STRANGLES AS RESULT OF LOOP STRAP MECHANISM CLOSING AROUND NECK DURING DECEDENT'S ATTEMPT TO CLIMB INTO EXERCISER.

Hillsborough County, Florida

This products liability action was brought by the plaintiff parents of the two-year-old female decedent for wrongful death resulting from strangulation when the loop strap mechanism on the defendant’s baby exerciser closed around the decedent’s neck. The exerciser consisted of a seat with leg openings and adjustable straps. The exerciser was designed to hook onto the overhead jam of a doorway. The plaintiff mother had purchased the defendant’s "Johnny Jump Up" baby exerciser for $________ at a garage sale for the plaintiffs’ infant son. The plaintiffs contended that the decedent, having observed her baby brother in the exerciser, had attempted to get into the exerciser by climbing onto a stationary living room chair and pulling the exerciser towards her. The plaintiffs asserted as the decedent attempted to climb into the exerciser, the loop on one of the straps wrapped around her head, causing strangulation. The plaintiffs maintained that although there was a label on the exerciser not to leave a baby unattended, there was no warning concerning the appropriate measures to take while the exerciser was not in use.

The plaintiffs contended that on the day of the incident, the plaintiff father was in the home with the infant son and the decedent while the plaintiff mother and an older child had gone to the store at about noon. The plaintiff father, a laborer on the night shift, had returned home in the morning and after brunch with the family, had taken a nap. The plaintiffs contended that the incident occurred sometime between 3:00 and 4:00 pm. The decedent was found by the plaintiff mother upon the mother’s return home. The plaintiff initially called on direct the defendant’s fact witnesses. The defendant’s corporate representative asserted that the product was never tested or evaluated as to the possibility of strangulation occurring due to the loop straps. This witness further maintained that testing was still not conducted although ten years prior to the incident the distributor had sent a letter documenting concern that the loop strap mechanisms posed a danger of strangulation. This witness also stated that he himself owned the exerciser for his own grandchildren and that he would take it down when not in use. Under direct by plaintiff, this witness also stated that the exerciser requires ________% supervision by an adult.

The plaintiff also called on its direct the defendant’s product designer who asserted that children might try to use the exerciser as a swing. The plaintiff also called the president of the defendant company who asserted that he would take down the exerciser when not in use by his own grandchildren.

The plaintiffs’ expert mechanical engineer testified that the defendant’s product was defective by design. This expert asserted that the loop strap mechanism created a built in noose and that this dangerous condition could have been eliminated by providing a single strap that would not have interfered with the function of the exerciser or the ability to adjust the height. This expert further asserted that the defendant should have provided a warning on the exerciser that it should be taken down when not in use since a child could get his or her head caught in the loop strap. The plaintiff called to testify the pathologist who had performed the autopsy on the decedent. This pathologist testified that the decedent died within a matter of seconds and that it was a silent death, precluding an opportunity for rescue.

The defendant argued that the product was not defective and that the incident was an unfortunate accident. The defendant called back to the stand its corporate representative who asserted that three to four million of its exercisers had been sold in the marketplace and that this accident was the first death. The defendant further asserted that the loop strap was not defective as it had not caused any other deaths. The defendant argued that it was not a hazard to leave the exerciser in a doorway while not in use. The defendant further asserted that the plaintiffs were negligent in not properly supervising the decedent while the plaintiff mother was away from the house and the plaintiff father was napping.

The plaintiffs testified as to the loss they experienced following the decedent’s death. The plaintiffs presented letters that had been written to the decedent prior to her birth to demonstrate the closeness of the family. The plaintiff mother further testified as to the type of child the decedent had been and as to the how she was going to miss experiencing the different phases of her daughter’s life. There were no damages experts. The defendant did not present arguments concerning damages. The jury awarded a verdict of $________ to each parent plus $________ for funeral expenses for a total verdict of $________. Defendant’s post-trial motions are pending.

Plaintiff’s expert mechanical engineer: Charles Benedict of Tallahassee. Plaintiff’s pathologist (performed autopsy): Dr.

Alexander Melamud of the Medical Examiner’s Office of Lakeland, Fla. Bowden vs. Spalding and Evenflo Companies, Inc., a foreign corporation. Case no. 89-________; Judge John M. Gilbert, 12-22-90.

Co-counsel for plaintiffs: Henry E. Valenzuela and C. Steven Yerrid of Tampa, Fla.; Attorneys for defendant: Ronald Fraley and David Banker of Tampa.

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