PHILADELPHIA – A plaintiff allegedly injured on the sidewalk outside a Bucks County Costco store has reached a mutual confidentiality agreement with the bulk retailer concerning sensitive matter to be revealed during the case, including a pertinent report of the subject and subsequent depositions.
Richard Mather of Richboro first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 4 versus Costco Wholesale Corp. (c/o CT Corporation) of Harrisburg, John Does 1-10, Jane Does 1-10 and XYZ Corporations 1-10
Mather was shopping at his local Costco Wholesale store in Warminster on Aug. 30, 2019, per the litigation.
“On Aug. 30, 2019, plaintiff was returning his shopping cart from the parking lot area to the designated return location at the entrance of the Costco building, when his foot came into contact with a depression of the sidewalk, known as the ‘truncated dome’ and was caused to lose his balance, tripping, stumbling and falling, sustaining serious and permanent injuries,” the suit said.
The plaintiff maintained that the defendants knew or should have known that the sidewalk was deficient and a dangerous condition.
“Plaintiff sustained severe and multiple injuries…including, but not limited to: Complex Region Pain Syndrome of the left lower extremity, requiring a series of nerve blocks and insertion of spinal cord pain stimulator, left foot and ankle pain with impact fracture, left knee pain, internal injuries of an unknown nature, severe aches, pains, mental anxiety and anguish, severe shock to his entire nervous system, exacerbation of all known and unknown pre-existing medical conditions, if any, and other injuries that will represent a permanent and substantial impairment of plaintiff’s bodily functioning, that substantially impairs plaintiff’s ability to perform his daily life activities, and the full extent of which is not yet known,” according to the lawsuit.
Counsel for Costco filed a motion to dismiss the case on Feb. 8, for failure to state a claim upon which relief could be granted – in specific reference to the plaintiff’s claims of recklessness.
“With no factual support, the complaint alleges that the defendant’s conduct was ‘reckless.’ The complaint also contains allegations of unspecified negligence. Finally, complaint also contains allegations of the violation of unspecified statutes, codes and laws. For these reasons, Costco seeks an order dismissing (1) All allegations of ‘reckless’ conduct; (2) Unspecified negligence language in paragraphs 16, 16(k), and 16(m); and (3) Allegations of the violation of unspecified statutes for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),” the dismissal motion read.
“There are simply no facts or indications of behavior pled in the complaint that would warrant allegations of reckless conduct. Merely pleading the legal words alone is not sufficient to support allegations of reckless conduct. There is nothing in the complaint that asserts that defendant knew or should have known that there was a ‘depression of the sidewalk.’ These alleged facts averred do not rise to the level of reckless conduct. For these reasons, plaintiff has failed to state a claim of reckless conduct and all allegations of recklessness should be dismissed with prejudice.”
UPDATE
Costco filed the stipulated agreement of confidentiality on Aug. 16, which was then signed by U.S. District Court for the Eastern District of Pennsylvania Gerald J. Pappert the same day.
“This confidentiality agreement and protective order shall govern all confidential information revealed in the above-referenced lawsuit, whether the confidential information is contained in documents produced, including, but not limited to the confidential warehouse incident report prepared by an employee of defendant, Costco Wholesale Corporation, answers to interrogatories, deposition testimony and/or any other oral or written responses to discovery conducted in this matter, whether it is revealed by defendants, their representatives, agents, employees, or any other party or third-party,” the agreement said.
“A party shall indicate that information is confidential information hereunder by producing a copy bearing a stamp, label or title signifying that it is ‘confidential.’ In the case of testimony or any other oral information, it shall be sufficient for a party to state that the confidential information is confidential pursuant to this agreement and protective order at the time such testimony or oral information is given or conveyed. Alternatively, a party may designate testimony as confidential hereunder by marking the transcript containing confidential information with the word ‘confidential’ within 30 days of receipt of the transcript of said testimony.”
At the end of litigation, upon request by counsel for the defendants, each person subject to this confidentiality agreement and protective order will return all confidential information to counsel for the defendants within 30 days after the final disposition of this matter.
“Documents that contain notations of counsel, experts, investigators or consultants may be destroyed rather than returned, but it shall be the responsibility of counsel to ensure the documents are destroyed. In the event that counsel for defendant does not request the return of the documents, counsel for plaintiff shall destroy them within 60 days of entry of final judgment in the case,” the agreement read.
For a count of negligence, the plaintiff is seeking damages in excess of $75,000, plus interest and costs of suit.
The plaintiff is represented by Charles S. Cooper of Cooper Schall & Levy, in Philadelphia.
The defendants are represented by Warren F. Sperling and Alexander D. Torres of Bennett Bricklin & Saltzburg, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00016
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com