PHILADELPHIA – The case of a South Dakota woman who sued home shopping magnate QVC after her 2 year-old consumed the company’s magnetic trivets and then required surgery will not be headed to a South Dakota federal court.
Emily Trias first filed suit on Feb. 11 in the Philadelphia County Court of Common Pleas against defendant QVC Inc. of Pennsylvania, the manufacturer of the magnetic trivets. Trivets are magnets that cling to the bottom of a cooking pan, allowing a hot pan to be placed on a table without burning it.
The complaint alleged that Trias’ child, who was 2 years old in 2018, ate part of four magnetic trivets that the woman had purchased with a cookware set. Trivets are small, rubbery and toy-like, with a floral pattern design that’s attractive to children
Trias alleged as a result of her child ingesting part of the trivet, the child had to undergo multiple surgeries to remove the object, which had lodged in the intestine.
“There was no warning the magnetic trivets should be kept out of the reach of children and not used or handled by children,” the complaint stated.
The defendant removed the case to Philadelphia federal court the next day, Feb. 12.
However, counsel for Trias filed a motion to remand the case to the Philadelphia County Court of Common Pleas on March 12, alleging that QVC did not follow proper procedure in removing the action to federal court.
“Defendant QVC, Inc. failed to complete all of the required procedural steps to effectively remove this action to federal court. Specifically, defendant failed to give written notice to plaintiff or her counsel in accordance with 28 U.S.C. Section 1446(d) and before service of the complaint on defendant,” the motion read, in part.
“Defendant’s removal was not completed and not effective before defendant was ‘properly joined and served’. Accordingly, this court lacks subject matter jurisdiction and must remand to the Philadelphia County Court of Common Pleas, pursuant to 28 U.S.C. Section 1447(c).”
The motion went on to say QVC was served with process before satisfying the requirements to effect removal of the action and accordingly, the forum defendant rule precludes removal of the action and the action should be remanded to state court.
On April 2, U.S. District Court Judge Chad F. Kenney denied the motion and ruled the case would remain in the U.S. District Court for the Eastern District of Pennsylvania.
Two weeks later, QVC filed a motion to transfer venue in the case on April 16, seeking to have the case moved to South Dakota – while Trias similarly moved to oppose that transfer on April 30.
On May 28 and for the second time in the action, Kenney ruled on where the case would be heard. After balancing the public and private factors of consideration, denied the case being transferred to federal court in South Dakota.
“Ultimately, the events in this case took place in both South Dakota, where the alleged incident and medical care occurred, and in Pennsylvania, where defendant QVC made decisions regarding the sale of the Subject Product. Unlike some products liability cases, the physical location of the alleged accident in this case is not significant to plaintiff’s claims of strict liability, negligence, and fraudulent concealment,” Kenney stated.
“Furthermore, both parties have identified ‘key’ third party witnesses, some who could not compelled to testify at trial in this district and others who could not be compelled to testify in the District of South Dakota. Additionally, both states have a local interest in deciding product liability cases at home. Therefore, after balancing all private and public Jumara factors, the Court finds that defendant has not overcome its burden to show that, ‘on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer’ to the District of South Dakota.”
For counts of strict product liability, fraudulent concealment and negligence, Trias is seeking an amount in excess of $50,000 in damages.
The plaintiff is represented by Thomas R. Kline and Patrick Joseph Fitzgerald of Kline & Specter in Philadelphia, David Ryan Shoop and Thomas Steven Alch of Shoop PLC in Beverly Hills, Calif., plus Adam K. Shea, Brian J. Panish, Nicholas W. Yoka, Patrick Gunning and Ryan A. Casey of Panish Shea & Boyle, in Los Angeles.
The defendant is represented by Clem C. Trischler and Jason M. Reefer of Pietragallo Gordon Alfano Bosick & Raspanti, in Pittsburgh.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-00813
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com