Pennsylvania Record

Monday, December 9, 2019

Judge keeps alive case of man allegedly injured by blade fragment in hot dog purchased at Walmart

Federal Court

By Karen Kidd | Dec 3, 2019

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SCRANTON – The case of a man injured in 2015 when he bit into a hot dog that allegedly contained a blade fragment will move forward following a federal judge's decision issued earlier this month.

In his 18-page memorandum and opinion issued Nov. 6, U.S. District Court Judge Robert D. Mariani, on the bench in Pennsylvania's Middle District, denied a motion to dismiss filed by defendants Smithfield Foods, Gwaltney of Smithfield, Smithfield Packing Co. and Walmart Stores.

Mariani also denied a motion to strike exhibits in a previous motion for summary judgment filed by the plaintiff in the case, Kenneth Watkins.

All the motions were filed in August.

Watkins claims he was injured in April 2015 when he bit into a hot dog manufactured by Gwaltney and Smithfield and then purchased at Walmart, and "immediately broke a few teeth and lacerated his tongue due to a sharp metal blade contained inside the hot dog," the memorandum said.

The complaint originally was filed in Lackawanna County Court of Common Pleas and defendants later removed the case to the Middle District court on the basis of citizenship diversity.

Watkins alleged negligence, strict liability and breach of warranty.

During his subsequent deposition, Watkins testified that he did not see anything unusual about the hot dogs when he purchased, cooked, placed them into buns and served them to himself and his family. The blade fragment measured .85 inches by .4 inches, according to the memorandum.

The defendants argued, among other things, that they were entitled to dismissal of the case because Watkins hadn't proved that the package of hot dogs had been defective "at the time it left their care, custody and control," the memorandum said.

The defendants also pointed to Watkins' decision to take no discovery, offer no expert testimony and offer his own testimony in deposition, according to the memorandum.

Watkins also "has not rebutted evidence that the metal in question could not have come from the hot dog manufacturing facility," the memorandum said. "He has failed to rebut evidence that the metal in question did not come from the Walmart facility and he has failed to rebut evidence that the metal in question is that of a standard kitchen knife."

The defendants consider evidence they have offered "as irrefutable" but Mariani said in his memorandum that he took "a different view."

Affidavits provided by two defense witnesses and an expert opinion was "insufficient" to prove that there was no connection between the defendants and the blade in the hot dog, the memorandum said.

"With their arguments in support of summary judgment, defendants implicitly question the veracity of plaintiff's version of events, but it is not for the court to make credibility determinations, it is for the jury," the memorandum said. "Considered in the proper legal context, plaintiff's deposition testimony is sufficient to preclude a determination at this stage of the proceedings that he will be unable, as a matter of law, to put forward evidence at trial that would allow the court to submit the question of negligence under the doctrine of the jury."

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