DAYTONA BEACH, Fla. -- Robert McCabe crouched in the yard, holding his son in his arms, using a butter knife to try to pry from the child's throat the 'Water Wiggle' toy that was swiftly drowning him.
Jonathan, 4, died in his father's arms -- his lungs, chest and head full of water.
'I tried to get it out. I couldn't get out,' McCabe told a circuit court jury Monday, the first day of testimony in the $5 million lawsuit he and his wife filed against Wham-O Manufacturing Co., makers of Water Wiggle and other toys. Testimony continues today.
The McCabes' attorneys, Melvin Belli and John Spencer Robinson, argued that the toy was defective and never should have been placed on the market.
'The package itself shows little children playing gleefully and happily with (the toy),' said Belli, a noted products liability lawyer. 'When the cap comes off the wiggle is lethal.'
McCabe told the jury he discovered Jonathan had swallowed the toy when his son Joey, 7, ran into the house screaming that 'Chrissy had this thing in his mouth.'
McCabe said he couldn't remember if he shut off the water or told Joey to do it, but when the Water Wiggle wouldn't come loose he ran inside and got a butter knife to pry it out.
Jonathan's death was the second blamed on the Water Wiggle, a toy that bounces around when hooked up to a spigot. In 1975, Marcus Maloney, 3, of Baton Rouge, La., died in a similar accident.
His family settled with Wham-O, but Robinson said the McCabe family wouldn't settle for $50 million.
'They want to expose this company,' Robinson said.
Wham-O's lawyer, Craig Cameron, said the toy complied with federal safety standards and carried adequate warnings as to its use.
A Wham-O spokesman said about 85,000 of the toys were returned when a recall notice was issued following the McCabe boy's death. About 3 million of the backyard water toys have been sold since 1961.
