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special to the national law journal terry o’reilly: The plaintiff’s counsel, above, plans more suits. At right is the late Michelle Enrile. The makers of a jelly candy hit with a $16.6 million verdict by a California jury convinced that the treat caused the choking death of a child say they will appeal, claiming they were barred from presenting crucial evidence. The suit, brought by the family of Michelle Enrile, alleged that the candy, manufactured by Sheng Hsiang Jen Foods Co. Ltd., a Taiwanese company, is shaped and sized in a way that it can become lodged in the throat, and that the konjac gel with which it is made makes the candy extraordinarily difficult to remove. Enrile v. Sheng Hsiang Jen Foods Co., No. CV784959 (Santa Clara Co., Calif., Super Ct.). Michelle Enrile was 12 in April 1999 when, the suit alleges, the cork-shaped candy became lodged in her throat and could not be removed by emergency responders. The girl was in a coma until her death in July 2001. The defendants, facing similar suits in California and other states, will appeal “vigorously,” said Berj Boyajian of the Law Offices of Boyajian & Associates in Los Angeles. Boyajian was retained on April 8, the day prior to an important hearing. Sheng Hsiang Jen Foods dropped its previous counsel, Boyajian said, and for several weeks the company had no attorney. It failed to respond to interrogatories during that time and was barred from presenting evidence, he said, that demonstrated his client did not manufacture the candy the child choked on. “No single person testified they saw the little girl put the mint gel in her mouth, but even if she did, it was not our mint gel,” Boyajian said. Answering 14 questions, the jurors found for the plaintiff on all except the question of malice, which spared the defendants from facing punitive damages. Plaintiff’s counsel Terry O’Reilly of San Mateo, Calif.’s O’Reilly, Collins & Danko said he anticipated a spirited appeal from the candy manufacturer because his firm is pursuing similar cases around the nation. He anticipates that the chances for winning punitive damages will be much greater in future cases. “Down the line, they will have a real problem explaining why they didn’t fix the product’s problem after this accident,” he said. O’Reilly said the most effective expert testimony was from the paramedics, police officers and firefighters who arrived at the scene and were unable to remove the candy from the girl’s throat. The witnesses estimated they had responded to more than 600 choking accidents. In no other incident had they been unable to remove the object. The distributor, importer and retailer in the chain of distribution of the candy settled claims for $8 million, but Sheng Hsiang rejected a nonbinding recommendation from an arbitrator to settle for $24.8 million. The U.S. Food and Drug Administration in October 2002 recalled all flavors of Mini Fruit Jellies sold under the brand name “JoeLee,” describing the items as “unfit for food due to the characteristics that result in a serious choking hazard.” The Canadian Food Inspection Agency, which also recalled the candy in October 2002, reported fatalities from choking on the candies in Canada, Australia and various Asian countries. O’Reilly said it is noteworthy that choking cases have involved adults, who presumably are far more able to remove an object from their throat than a youngster. According to O’Reilly, a case of a child in Japan choking on one of the gel candies made by Sheng Hsiang Jen Foods was documented in 1995. The company changed the product at the request of the Japanese government. It has sold more than 3 billion of the gels worldwide, O’Reilly said. Page’s e-mail address is

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