PHILADELPHIA – Frito-Lay says it is not responsible for injuries suffered by a Chester County man who alleged that while at work last year, he both cracked his tooth and swallowed a foreign object he found in his package of potato chips.
Grant Folkert of West Grove initially filed suit in the Philadelphia County Court of Common Pleas on Sept. 29 versus Frito-Lay, Inc., of Plano, Texas.
The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Nov. 3, due to the amount of damages in question and diversity of citizenship between the parties.
“On Aug. 12, 2019, the plaintiff, Grant Folkert, was working at his summer job at Giant Foods, where the incident in question occurred. During a break, Folkert purchased from the store a small bag of Frito-Lay potato chips to eat. After purchasing the small bag of Frito-Lay potato chips, Folkert returned to the break room where he began to eat the potato chips,” the suit said.
“While eating the Frito-Lay potato chips, Folkert bit into a hard, foreign object which had been in the bag. As a result of biting into the hard, foreign object in question, Folkert fractured his tooth, experienced immediate pain and in his panic, swallowed the hard, foreign object. The hard, foreign object had apparently been in the bag of potato chips since the time of its packaging by the defendant, Frito-Lay, Inc.”
Folkert believes he is entitled to full and complete compensation for his injuries.
UPDATE
Frito-Lay filed an answer to the complaint on Nov. 23, denying Folkert’s claims and putting forward a number of affirmative defenses.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff’s claims may be barred and/or limited by the doctrines of contributory and/or comparative negligence,” the answer read, in part.
“Plaintiff’s claims may be barred and/or limited to the extent it is determined that any damages or losses allegedly suffered by plaintiffs were not caused by this defendant but were caused by individuals and or entities for whom this defendant exercises no control and whose conduct this defendant cannot be held liable.”
Frito-Lay also argued that Folkert’s claims may be barred or limited, in the event it is revealed in discovery that he failed to mitigate his damages.
“Plaintiff’s claims may be barred and/or limited if plaintiff’s alleged losses or damages were caused by the intervening or superseding acts of negligence of persons over whom this defendant exercises no control and for who this defendant is not responsible. Plaintiffs’ claims may be barred or limited by a setoff or reimbursements secured by plaintiffs through settlement with or benefits through insurance,” the answer continued.
“To the extent justified by the facts developed in discovery or at any time during trial, the defendant pleads all federal and state medical and healthcare legislation and/or coverage as a setoff to plaintiffs’ claims. Plaintiff has failed to secure evidence of its claim and may be subject to sanctions due to spoliation of evidence, including dismissal.”
On Dec. 2, Folkert filed a motion to remand the case to state court, citing the requested damage amount does not meet the $75,000 threshold needed for federal court action.
“The complaint of the plaintiff, Grant Folkert, does not seek damages in excess of $75,000. Thus, the amount in controversy in the present matter does not exceed $75,000. The plaintiff hereby stipulates and agrees that recovery of damages of less than $75,000 is sought in the present matter. Jurisdiction in this Court, therefore, does not exist pursuant to 28 U.S.C. Section 1441 et seq.,” counsel for Folkert stated in its motion.
For counts of negligence, breach of warranty and strict liability, the plaintiff is seeking damages in excess of $50,000, plus a trial by jury.
The plaintiff is represented by Suzanne Tighe of Haggerty Goldberg Schleifer & Kupersmith, in Philadelphia.
The defendant is represented by Randy C. Greene of Dugan Brinkmann Maginnis & Pace, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05482
Philadelphia County Court of Common Pleas case 200901775
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com