Here’s An Idea, We Sue Mattel

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Yes, now some of the local toy manufacturers hurt by bad press are looking at suing Mattel in U.S. federal court. Good luck with that, I’m sure the jurors will love you.

Paul Midler comments on the absurdity of the claim that the manufacturers are only 15% at fault and that Mattel should provide compensation since it was responsible for 85% of the fault.

Toy suppliers were only 15% at fault, you see. The balance of the blame is Mattel’s – and, therefore, Mattel owes something. Has no one thought to point out the difference between “on purpose” and “accident”. Design flaws are unintentional by nature. The use of lead-based paint, though, was a decision made by someone looking to widen profit margins on the China side.

Midler’s analysis is reasonable of course, but it also contains a fatal flaw: he is assuming that an average tort lawyer gives a crap whether something was done on purpose or by accident. We lawyers are heartless bastards who don’t think in those normative terms, so don’t expect to get a discussion of those issues.

If they go forward with a negligence case, the accidental nature of all this won’t be dealt with. Look at your average tort case: "I never intended to slice your leg off with that chainsaw. I was juggling three of them, and one must have slipped." No malicious intent there, although that particular defendant would have a lot of trouble staying out of jail.

The question is whether the design flaws should have been caught by Mattel. If the answer is yes, they could be in trouble. I am leaving out a lot of requirements here (e.g. causation, damages) that you have to prove in a tort case, but the point is, intent will not be the central part of all this.

By the way, and I don’t know the facts of the case, you never know what fun stuff will come out in a jury trial about the internal decisions of Mattel or the Chinese companies. We already know why the latter used lead paint – cheaper, I guess. What about those design flaws? Cost concerns? Did they know that? When did they know it? Any discoverable memos floating around out there? You see where I’m going with this.

I’m halfway hoping that they file a case. It will be incredibly entertaining and will provide nice blog fodder. Moreover, it would give me the chance to write nasty disparaging things about tort lawyers. As a corporate and IP attorney, it is my duty to do so.