PITTSBURGH – A Butler woman and her husband have been ordered to comply with a plastic bag distributor and manufacturer’s discovery requests, in a lawsuit where the wife-plaintiff needed surgery to repair her finger after it was torn by a Walmart 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.
The non-Walmart defendants also appended new matter to their answer.
“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. Answering defendants did not create any alleged dangerous condition or defect in the subject product,” the answer stated, in part.
In addition, the subject defendants also leveled cross-claims against Walmart, saying if the plaintiff’s account was factual, any injuries she suffered and losses she sustained were the responsibility of the Walmart defendants only.
UPDATE
Walmart filed a motion to compel discovery directed to the plaintiffs on June 10.
“On March 17, 2020, plaintiffs were served with Walmart’s interrogatories and requests for production. By email to plaintiffs’ counsel on April 30 and again on May 17, plaintiffs were advised that their discovery requests 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,” according to the store’s motion to compel.
That same day, Allegheny County Court of Common Pleas Judge Philip A. Ignelzi approved the motion and ordered the plaintiffs to respond to Walmart’s first set of interrogatories and request for production of documents within 30 days, or be liable to face sanctions from the Court.
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