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Mother's suit alleges bed killed her son

Manufacturer settled with another Del. family in Sept.

Jan 28, 2006 | The News Journal

A second Delaware family has filed suit charging that a bed designed to protect special-needs children while they slept killed one.

The lawsuit filed in federal court this week by Anna Murray of Middletown against Vail Products Inc. of Ohio mirrors a lawsuit filed last year by the Flick family of Bear. The Murray suit is at least the fifth federal wrongful-death suit that has been brought against the now-defunct company.

According to Murray's lawsuit, she purchased an enclosed Vail bed in October 2002 for her 8-year-old son, David Malone, who could not walk or talk, and kicked his legs while he slept. Someone at the special-needs school Malone attended recommended a Vail bed to the family.

On the morning of May 8, 2003, Malone was found dead.

"He had fallen between the mattress and the railing, suffocated and died," according to the suit.

The facts of the case are nearly the same as in the Flick case, and closely match three other federal lawsuits filed across the country.

The Flicks bought a Vail bed for their daughter Victoria in 2000, to protect against her falling out of bed. Victoria Flick, like David Malone, suffered from cerebral palsy.

"He had fallen between the mattress and the railing, suffocated and died," according to the suit.

The facts of the case are nearly the same as in the Flick case, and closely match three other federal lawsuits filed across the country.

The Flicks bought a Vail bed for their daughter Victoria in 2000, to protect against her falling out of bed. Victoria Flick, like David Malone, suffered from cerebral palsy.

The Flicks purchased the bed after seeing an advertisement in Exceptional Parent magazine. Murray's suit also mentions the ad.

The Flick family found Victoria, 7, dead on the morning of Aug. 1, 2004. Like Malone, she had gotten trapped between the mattress, side netting and the railing and suffocated.

Shortly after the Flick family filed suit in February 2005, federal officials raided the Vail company's headquarters and seized documents and display beds. The Food and Drug Administration then issued a warning declaring the beds a "significant health risk" and urged all families who had purchased one to stop using it.

The FDA also accused Vail of failing to follow federal regulations and in June 2005, the company announced it was closing its doors.

Company officials could not be located for comment. Phone numbers for Vail are no longer functioning. The attorney who represented Vail in the Flick lawsuit said he has not been hired to represent the company in the Murray lawsuit.

Both the Flicks and Murray said they never received a warning letter about problems with the bed the FDA ordered Vail to mail in April 2003.

The company settled with the Flick family in September for an undisclosed sum.

Vail also settled with at least two other families. Leslie P. Smith of Virginia settled for an undisclosed sum in 2001, following a lawsuit she filed over the death of her son Joshua Ramsey, who was 6 or 7 at the time of his death, according to Smith's attorney. Ramsey was a special-needs child who was found suffocated in his Vail bed.

The Pennington family in Texas settled with the company for $1.25 million in September 2004, following the death of 6-year-old Tracy Pennington, who had cerebral palsy, in his Vail bed in April 2003.

There is one other federal lawsuit pending against Vail. The Georgia suit was filed by Robyn Long in 2005 over the death of her special-needs son, Derek Long, 14, in his Vail bed in January 2003.

Attorneys involved in Vail litigation said there are at least two other wrongful-death suits against Vail filed in state courts in Tennessee and North Carolina.

According to Murray's lawsuit, though her son had died two years earlier, Murray received a warning letter in May 2005 from Vail. "Upon receipt of this letter, plaintiff Anna Murray realized for the first time that her son's death may have been related to the unsafe nature of his enclosed bed," according to the suit.


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