PITTSBURGH – Walmart says that due to a lack of response to its requests for discovery material, it has been prejudiced from defending itself in a lawsuit brought against it by a Butler woman, who needed surgery to repair her finger after it was torn by a grocery bag.
Karen and Phillip Vavro initially filed a complaint in the Allegheny County Court of Common Pleas on Dec. 31 against Walmart Inc., Novolex Holdings LL., Hilex Poly Co. and others, alleging negligence and other charges.
Karen Vavro alleged she was shopping at the Walmart Supercenter in Butler on Jan. 3, 2018. While carrying a plastic bag containing a gallon of milk between her fingers, she alleges the plastic bag handles suddenly tore into her fingers.
Vavro asserted that she sustained a finger fracture that required surgery and then needed additional surgery to correct a mallet finger deformity.
The plaintiffs alleged Hilex failed to test and/or inspect the bags and that Walmart failed to train employees not to overfill a grocery bag.
However, on Feb. 28, counsel for Walmart responded to the Vavros’ litigation and among a series of arguments, countered that she failed to state a cause of action upon which relief could be granted, that the plaintiffs’ claims are limited by the Comparative Negligence Act, that Karen Vavro contributed to her own injuries and damages and that because the plaintiffs failed to preserve the grocery bag at issue, that spoliation of evidence automatically barred all claims against Walmart.
Further, Walmart filed a cross-claim for common law contribution and indemnity against its co-defendants, alleging that if it is to be later determined that Walmart is found liable to any of the parties in the instant case, that it is entitled to contribution and/or indemnification from the other defendants.
On June 2, Novolex Holdings, LLC, Hilex Poly Co., LLC and Duro Hilex Poly, LLC filed an answer to Vavro’s complaint along with new matter and Walmart’s cross-claim, leveling its own charges against the retail giant.
“Answering defendants did not manufacturer grocery bags that were sold in a defective condition. Strict proof thereof is demanded that plaintiff was injured by a bag manufactured by the answering defendants. Further, Duro Hilex Poly, LLC does not manufacture plastic bags therefore it could not have ever manufactured the subject bag,” according to the defendants’ recent filing.
“Plaintiffs’ claims are barred due to intentional or negligent spoliation of evidence. The direct and proximate cause of the damages suffered by plaintiff was not any act or failure to act by answering defendants. The direct and proximate cause of any damages suffered by the plaintiff were caused, in whole or in part, by the negligence or want of due care of persons, parties and/or organizations other than the answering defendants. Answering defendants did not create any alleged dangerous condition or defect in the subject product,” the answer stated, in part.
On June 16, counsel for Walmart filed a motion to compel discovery in the case.
“By email to plaintiffs’ counsel on April 30, 2020 and again on May 27, 2020, plaintiffs were advised that their discovery responses were overdue. Plaintiffs have failed to respond to Walmart’s discovery requests. Plaintiffs’ failure to respond to Walmart’s discovery has prejudiced Walmart’s defense of this case,” the motion read.
Subsequently, Allegheny County Court of Common Pleas Judge Philip A. Agnelzi granted the motion to compel and gave the plaintiffs 30 days to respond to Walmart’s first requests for production of documents in response to its set of interrogatories. If not, the judge said the plaintiffs will be subject to sanctions.
For counts of negligence, strict products liability, breach of warranty and loss of consortium, the plaintiffs seek judgment in excess of local arbitration limits, interest, court costs and all other just relief.
The plaintiffs are represented by G. Christopher Apessos of Friday & Cox, in Pittsburgh.
The defendants are represented by Theodore M. Schaer and Gregory Michael Mallon of Zarwin Baum DeVito Kaplan Schaer Toddy in Philadelphia, plus Rebecca Sember Izsak, G. Richard Murphy of Thomas Thomas & Hafer and Paul R. Robinson of Meyer Darragh Buckler Bebenek & Eck, all in Pittsburgh.
Allegheny County Court of Common Pleas case GD-19-018398
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com