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Stung by an arbitrator’s nonbinding award of $24.8 million to the plaintiffs in a choking suit, a Taiwan candy manufacturer seems ready for a trial. The manufacturer, Sheng Hsiang Jen Foods Co., is defending itself against negligence claims brought by the family of an 11-year-old who they allege was brain-damaged after choking on its product. It rejected the nonbinding arbitration, required in Santa Clara County, Calif. No trial date has been set in the suit, filed in Superior Court by the family of Michelle Enrile. Enrile v. New Choice Food, No. CV784959 (Santa Clara Co.). “The case has serious causation issues,” said the manufacturer’s lawyer, Steven M. Garber, managing partner of Steven M. Garber & Associates in Los Angeles. He called the arbitrator’s award “very irresponsible.” “I feel badly for the family and the little girl, but the bottom line is the product did not cause her injury,” Garber said. “She did not choke on this product.” In an arbitration brief, Garber argued that because the girl suffered severe damage and is in a vegetative state, the family seeks “to extort a settlement” from the candy manufacturer, which “refuses to be coerced into settlement.” Arbitrator Philip Young, of counsel at Hoge, Fenton, Jones & Appel in San Jose, Calif., said he based his award on the evidence presented, noting that the defense presented no evidence on damages. THE KONJAC ISSUE The candy at issue is the Lychee Flavor Mini Gel Snack. Dozens of manufacturers make the popular Asian snack, Garber said. The “gel” is made of konjac, a binding agent made from processing tubers of the Konnyaku root. The sweetened gel surrounds a fruit chunk, typically coconut, he said. The package on the candy, about an inch across and an inch long, says it should be frozen “for a better taste.” But the sweet does not melt in the mouth; it requires chewing. The package also bears a warning: “This product contain [sic] fruit chunks. Must be chewed before swallow [sic]. Not recommended for children under three years old.” The candy’s plug shape, the konjac — which gets very sticky when chilled — and the package’s recommendation to freeze, make the snacks a high choking risk, asserted the plaintiffs’ lawyer, Terry O’Reilly of O’Reilly, Collins & Danko in San Mateo, Calif. “It’s a guarantee. You are going to kill people,” he said. In Japan, gel snacks caused at least eight choking deaths in the mid-’90s, mostly of young children, O’Reilly said, citing reports by the Japanese consumer product safety agency. In a deposition, the candy manufacturer’s chairman said he was aware of the snacks’ choking risk and that his company added the label warning after Japanese manufacturers added it, the plaintiffs’ attorney said. As well as suing the manufacturer, the family sued the product’s importer, the distributor and the retailer, alleging products liability and negligence, among other things. The plaintiffs’ arbitration brief said the importer, distributor and retailer settled their claims for $7 million. Robert T. Lazzarini of Low, Ball & Lynch in San Francisco, attorney for California-based importer/distributor New Choice Food, the lead defendant, said the settlement is confidential. Attorneys for retailer Marina Foods Inc. and distributor LHC Enterprises Inc. could not be reached for comment. The manufacturer’s lawyer said that no one saw the girl eat the candy. But her sister said in a deposition that she saw her take two gel snacks from the family’s freezer, then the girls got into a chase, a claim disputed by the plaintiffs’ lawyer. Even if the girl put the candy in her mouth, “it couldn’t fit in her throat if she tried,” said Garber, noting that it would be like an adult trying to swallow a golf ball. If she ate it, her chewing was insufficient; therefore she caused her own injury, he argued. One or two minutes after getting the snacks from the freezer, the girl began to choke, the plaintiffs’ attorney asserted. Paramedics ultimately dislodged the obstruction by inserting a breathing tube. One paramedic said in a deposition that the girl’s face was covered with very sticky blood. No gel snack was ever found, said Garber. But the plaintiffs’ attorney argued in the arbitration that a square piece of fruit was found in the girl’s airway while she was in the emergency room and that the fruit was consistent with the gel snack.

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