Nicholas Malfitano Jun. 2, 2015, 10:51am


PHILADELPHIA – A Richboro couple who filed suit against multiple manufacturers and retailers of sports equipment alleging a faulty resistance band caused a serious eye injury have been given leave by a federal judge to file a second amended complaint, albeit without a call for punitive damages against the defendants on a presumed breach of warranty claim.

Glenn and Patricia Thorpe initiated litigation against Bollinger Sports and Modell’s Sporting Goods in July, then added BRG Sports and Bell Sports as defendants in October, after Glenn suffered serious eye injuries in January 2014 that he claimed were caused by a defective Embark resistance band – one that had already been recalled in September 2011 by its previous manufacturer Bell Sports and was supposed to have been taken off the retail market.

However, the plaintiffs allege when the product line was acquired by Bollinger Sports sometime in 2012, Bell failed to inform it of the product recall and thus the resistance band continued to be offered for retail sale.

The plaintiffs say the confusion led to injuries to 25 people who also purchased the defective resistance bands over a four-year period spanning January 2010 to January 2014.

In the accident, Glenn Thorpe suffered eye contusion, traumatic iritis and pigmentary glaucoma requiring surgical repair.

The Thorpes’ suit contained charges of defective manufacture and/or design sounding in strict liability and negligence, misrepresentation sounding in strict liability, breach of express and implied warranties and loss of consortium against the manufacturers and retailers.

Judge Gerald J. Pappert, of the U.S. District Court for the Eastern District of Pennsylvania issued a decision on the ability of the plaintiffs to file an amended complaint featuring punitive damages on Wednesday.

Though Pappert explained punitive damages could hypothetically be sought if in fact it were proven the resistance bands were “knowingly and/or recklessly” sold by Bollinger Sports after the September 2011 recall, the lack of judicial clarity in the plaintiffs’ breach of warranty claim prevented such a request from being granted at this juncture.

“The Court, however, finds that plaintiffs’ request to seek punitive damages in their breach of warranty claim is futile. It is not clear whether plaintiffs’ breach of warranty claim arises under the UCC or Pennsylvania common law. At this juncture this lack of clarity is harmless because punitive damages are not available under either theory,” Pappert wrote.

Continuing, Pappert found the request for punitive damages to be meritless.

“Because defendant Bollinger has not articulated a legal basis upon which the Court should deny the motion and plaintiffs’ request for punitive damages with regard to their negligence and strict liability claims is not futile, the motion is granted in part,” Pappert said.

“Plaintiffs may file an amended complaint that is substantially similar to the one attached to their motion, but that deletes the request for punitive damages from the wherefore clause following their breach of warranty claim against Bollinger.”

The plaintiffs are seeking in excess of $150,000 in this case, plus attorneys fees, court costs and any other relief the court deems just and proper.

The plaintiffs are represented by Christopher J. Culleton of Swartz Culleton, in Newtown.

The defendants are represented by Gregory Voci of Wolf Rubinate & Hasson in Philadelphia and Charles Scott Toomey and Daniel J. Kain of Littleton Joyce Ughetta Park & Kelly in Radnor.

U.S. Eastern District Court of Pennsylvania case 2:14-cv-04520

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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