PHILADELPHIA – A federal judge has denied the attempts of Generac Power Systems and Lowe’s Home Improvement to strike and dismiss portions of a lawsuit from a man whose right index finger was amputated in an incident with a home generator.
Brenden Hires of Langhorne first filed suit in the Philadelphia County Court of Common Pleas on April 27, versus Generac Power Systems, Inc. of Waukesha, Wis., Lowe’s Home Centers, LLC of Mooresville, N.C. and John Does 1-5.
The case was then removed to the U.S. District Court for the Eastern District of Pennsylvania on May 21, due to diversity of citizenship between the parties.
According to Hires, he purchased the Generac power generator Model XT8000E at the defendant store in Middletown Township last November.
“On or about Nov. 21, 2019, plaintiff was at his home in Langhorne. The portable generator at issue was on the back of plaintiff’s truck. Plaintiff and plaintiff’s assistant attempted to move the portable generator at issue from the back of the truck when the portable generator began to drop,” the suit stated.
“As the generator began to drop, due to the negligence and wrongdoing of defendants, and the defective condition of the aforementioned portable generator, suddenly and without warning, the handle caught on the vehicle and swung up and plaintiff experienced amputation and traumatic crush injury to the index finger of his right hand and further causing him to suffer severe and grievous injuries.”
The plaintiff claimed the defendants violated the standards created in Tincher v. Omega Flex and the Second Restatement of Torts, by manufacturing, distributing and selling a defective product which caused the injuries as suffered by Hires.
On July 16, the defendants filed a motion to strike and dismiss portions of the plaintiff’s complaint, and in the alternative, motion for a more definite statement.
“In Paragraph 12 of plaintiff’s complaint, plaintiff alleges that an allegedly defective safety pin on the subject generator ‘was not safeguarded to prevent the handle from swinging up and creating a pinch hazard during transportation as required by code, statute and good safety engineering practice,” the motion read, in part.
“To the extent that this Court finds that such paragraphs should not be dismissed, a more definite statement by plaintiff is necessary to clarify what specific code, statute, or good engineering practices Generac failed to abide by.”
In an opposing response to the dismissal motion filed July 30, Hires said his complaint contained “sufficient factual matter” needed to meet the prerequisite of a plausible claim.
“Plaintiff’s complaint does, in fact, include sufficient factual matter so as to state valid plausible claimed upon which relief may be granted. Defendant has been put on notice that plaintiff was injured when attempting to move the subject generator from the back of his truck to the ground. When the generator began to fall, plaintiff attempted to grab the generator and his finger was caught in a pinch point in the negligently designed handle, thereby suffering a crush injury to his index finger,” the response motion stated.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge John R. Padova denied the defendants’ motion to strike Paragraph 12 of the complaint.
“Defendants argue that this paragraph should be dismissed or stricken pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, that we should order plaintiff, pursuant to Rule 12(f), to provide a more definite statement to clarify the code, statute or good engineering practice that was allegedly violated,” Padova said.
“Rule 12(b)(6) provides for the dismissal of claims, not dismissal of specific paragraphs of a complaint, and defendants cite no legal authority for their premise that the Rule can be used to strike a single paragraph of factual allegations. Moreover, there is authority to support a contrary conclusion, i.e., that Rule 12(b)(6) cannot be used in this manner. As such, a motion made pursuant to Rule 12(b)(6) is an improper mechanism to seek to strike allegations. We therefore deny defendants’ motion insofar as it seeks to dismiss or strike Paragraph 12 pursuant to Rule 12(b)(6).”
Padova continued that Rule 12(e), by comparison, permits a party to “move for a more definite statement of a pleading” when the pleading is “so vague or ambiguous that the party cannot reasonably prepare a response.”
Padova added such motions are “generally disfavored, and are used to provide remedies for unintelligible pleadings rather than as correction for lack of detail.”
“Here, Paragraph 12 is not unintelligible, and defendants merely seek to correct a lack of detail. Moreover, we are not convinced that the paragraph is so vague that defendants cannot frame a responsive pleading. Accordingly, in addition to denying defendants’ motion insofar as it seeks to dismiss or strike Paragraph 12, we deny it insofar as it seeks a more definite statement as to Paragraph 12,” Padova concluded.
Though, the parties agreed through mutual stipulation to strike Paragraph 16(i), and Padova approved that concession.
For multiple counts of strict liability, negligence and breach of warranty against each individual defendant, the plaintiff is seeking damages in excess of $50,000, and also from each individual defendant, in addition to a trial by jury.
The plaintiff is represented by Brandon A. Swartz, Bryan Michael Ferris and Matthew J. McElvenny of Swartz Culleton, in Newtown.
The defendants are represented by Christopher G. Mavros and Theodore M. Schaer of Zarwin Baum DeVito Kaplan Schaer & Toddy, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02399
Philadelphia County Court of Common Pleas case 200401341
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com