PITTSBURGH – Walmart is looking to dismiss the supplier of its grocery bags from the lawsuit brought by a Butler woman and her husband, where the wife-plaintiff needed surgery to repair her finger after it was torn by such a bag.
Karen and Phillip Vavro first 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.
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.
Novolex Holdings, LLC, Hilex Poly Co., LLC and Duro Hilex Poly, LLC filed an answer to Vavro’s complaint on June 2 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’s counsel filed a motion to dismiss Spectrum Bags, Inc. from the action on Oct. 21.
“Walmart has yet to file any complaint to join against either additional defendant in this case, and has not be asked to do so. Recently, Spectrum Bags, Inc. acting through its insurance carrier, and notified Walmart that it will accept Walmart’s tender request, indemnify Walmart for plaintiff’s claims, which are expressly denied, and take over Walmart’s defense in this matter,” the motion read, in part.
“Further, Spectrum Bags, Inc. requested that undersigned counsel withdraw their appearance and their counsel enter an appearance on behalf of Walmart. In order to eliminate even the appearance of any conflict between Walmart and Spectrum Bags, Inc., Walmart moves to dismiss the writ of summons against Spectrum Bags, Inc. and remove them as an additional defendant in this matter.”
Walmart explained that given Spectrum Bags, Inc. acceptance of indemnity and defense on behalf of Walmart, their dismissal from the case will not prejudice any of the other parties in this matter – and that plaintiffs’ counsel, and all other counsel of record for defendants, have informed the undersigned that they consent to this motion.
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