The family of a toddler who suffocated on a promotional Pokemon toy from Burger King filed a wrongful death lawsuit in Los Angeles on Thursday against the fast-food chain, the toy maker and a safety-testing company.
The suit, brought by the child's mother, Jill Ann Alto, seeks unspecified damages for Kira Alexis Murphy's death Dec. 11. Two weeks later and after the near-death of another child in Kansas, Burger King recalled more than 25 million Pokeballs.
"We want to hold Burger King responsible for the tragic, unnecessary death of this 13-month-old girl," Alto's attorney, Geoffrey Wells, said.
The Pokeballs were given out in November and December last year. The 3-inch plastic toys consisted of a spherical container that pulled apart to reveal one of 57 Pokemon "pocket monsters."
Alto was in the shower when Kira, in her playpen, placed half the container on her face. When she inhaled, the container formed a seal over her nose and mouth and she suffocated.
Alto, a single mother from the Northern California town of Sonora, said she had been in the shower for about 20 minutes. She planned to feed and dress Kira after her shower.
"Instead, I came out and found her with the ball over her mouth and nose," a tearful Alto said. "I had to pull it off."
Kira's 4- and 5-year-old sisters, for whom Alto had gotten the Pokeballs, witnessed the death.
Burger King officials initially refused to recall or stop distributing the Pokeballs after Kira's death, said Russ Rader, spokesman for the U.S. Consumer Product Safety Commission.
After a close call on Dec. 23 in Leavenworth, Kan., in which an 18-month-old girl's lips turned blue before her father pulled the toy off her face, Burger King agreed to the recall, Rader said. It was the largest recall of any children's product since 19 million swimming pool dive sticks were recalled last summer, he said.
Another child, 4-month-old Zachary Jones, of Indianapolis, was suffocated by a Pokeball on Jan. 25, according to coroner's officials.
Burger King spokesman Charles Nicolas said company attorneys had not reviewed the lawsuit as of Thursday afternoon and could not comment on specifics of the case.
The lawsuit is the latest turn in a promotional campaign that started to go downhill when many Burger Kings across the country ran out of the toys, angering parents.
No one was available for comment from Delaware-based Specialized Technology Resources Inc., the testing company hired by Burger King to do safety studies.
But a spokeswoman for the maker of Pokeballs, Equity Marketing Inc. of Beverly Hills, said the toys were put through rigorous testing beyond federal requirements.
Equity has produced more than a billion items, and this is the first time a death has occurred in connection with one, said the spokeswoman, Ria Carlson. "I think as tragic as this is, it was truly an accident," she said.
But attorney Wells said that simply placing holes in the ball would have prevented any child from suffocating.