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September 29, 2011

Jury rejects area woman’s $20M injury suit against Toys R Us

Clarks Summit woman claimed falling candy dispenser in NYC caused severe injuries.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
Terrie Morgan-Besecker on Facebook   |   @TLTerrieMorgan on Twitter

WILKES-BARRE – A federal jury on Tuesday ruled against an area woman who was seeking more than $20 million from Toys R Us for injuries she allegedly suffered when an oversized candy dispenser fell and struck her in the head.

The jury, which heard from several dozen medical and other experts over a six-week trial, deliberated for about two hours before finding the national toy store chain was not negligent in connection with the Oct. 26, 2008, incident involving Dr. Mary Elizabeth Jordan Flickinger of Clarks Summit.

Flickinger alleged she suffered debilitating injuries, including several herniated discs, when a large M&M candy dispenser at the chain’s flagship store in New York City dislodged as she attempted to dispense candy. The dispenser struck her in the head and snapped her neck back, according to the lawsuit filed in 2010.

The dispenser, part of the store’s “M&M Colorworks” display, is a rectangular tube attached vertically to a free-standing cylinder. It stood several feet above the ground, according to a photo included in court records.

The suit, filed by attorney Joseph Quinn of Hourigan, Kluger and Quinn in Kingston, alleged the store was negligent for failing to ensure the dispenser was properly secured.

The unfavorable verdict is a rare loss for Quinn, whose firm has won numerous multimillion-dollar verdicts over the years. Quinn did not return several messages seeking comment Wednesday.

Attorney Anthony Trozzolillo of Scranton, who represented Toys R Us, said Wednesday he was “relieved” by the verdict. Flickinger, an optometrist, was seeking between $18 million and $20 million in damages for past and future loss of earnings, plus an additional several million dollars for future medical expenses, he said.

Toys R Us had maintained the store was not negligent as it frequently inspected the display and there was no evidence to indicate when the bin became dislodged, Trozzolillo said.

The chain also questioned whether Flickinger’s injuries were caused by the falling dispenser, or were the result of injuries she suffered in a 2007 skiing accident – information Toys R Us said was withheld by Flickinger’s attorneys until three months before the trial.

In a pre-trial brief, Trozzolillo said Flickinger advised store employees that she was not injured immediately after the incident occurred. It wasn’t until nine months later that she claimed to have awakened with neck pain she alleges was caused by being struck by the dispenser.

Trozzolillo said the jury did not render a decision regarding the cause of the injuries, because it determined at the outset that the store was not negligent, which made the cause of the injuries a moot point.

“The jury found no negligence, so they never got to the medical aspect of the case,” he said.

Trozzolillo said he believes the key issue for jurors regarding the negligence claim rested on whether the store had notice of the alleged defective condition of the dispenser.

“It was inspected several times a day. If the display became unsecured, there was no way of knowing when it became unsecured. It could have happened a minute or two before this happened,” he said.

Even if the jury had found negligence, Trozzolillo said he’s confident the store would have prevailed on causation issue based on evidence that showed Flickinger continued to live an active lifestyle after the incident.

“She went on three vacations. She went skiing. You have to kind of scratch your head and say if she was really hurt, what is all this activity about?” Trozzolillo said.

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