PHILADELPHIA – A Montgomery County woman’s lawsuit alleging that a highly active ingredient in Coppertone sunscreen causes severe burns, rather than helping to protect its users from burns as advertised, may be dismissed within two weeks if proper service of the suit is not made within that time.
Jessica Hutt of Palm first filed suit in the Philadelphia County Court of Common Pleas on March 9 versus Walmart Stores, Inc. of Bentonville, Ark., Beiersdorf, Inc., of Wilton, Conn., Bayer Corporation of Whippany, N.J. and Merck & Co, Inc., of Kenilworth, N.J.
(The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on May 12.)
“Defendants distributed, sold, advertised and warranted the Coppertone. The Coppertone and its active ingredients were designed, manufactured, marketed, warranted, advertised and packaged by defendants. Upon information and belief, the design, development, testing, marketing, packing, and drafting of warnings for the were completed and/or overseen in by defendants Beiersdorf, Inc.’s, Bayer Corporation’s, and Merck & Co., Inc.’s agents, ostensible agents, servants and/or employees,” the suit stated.
“Plaintiff used the Coppertone purchased for its intended purpose of sunscreen protection in a manner reasonably foreseeable by defendants. The Coppertone suffers from defects that posed an unreasonable risk of injury during normal use. Defendants knew or should have known of the defect and of the serious safety risk it posed to consumer and the public but chose to conceal knowledge of the defect from consumers, including plaintiff, who purchased the Coppertone.”
According to the lawsuit, the defendants knew or should have known that when it sold the Coppertone to the public that it suffered from a high active ingredient defect that can cause severe burn – and that the active ingredient defect might result in significant personal injury to consumers and the public, including plaintiff.
“Defendants have a duty to disclose the defect and to not conceal the defect from the public, including plaintiff. Defendants’ failure to disclose, or active concealment of, the defect placed plaintiff at risk of personal injury. Defendants falsely represented through written warranties, advertisement and/or other marking that the Coppertone is free from defects, is of merchantable quality, and will perform dependably. As a result of these warranties, plaintiff purchased and used the Coppertone in a foreseeable manner though it was unsafe to do so,” per the suit.
“On or about July 7, 2019, plaintiff used Coppertone to protect her skin, and having read and understood the instructions and having relied on defendants’ representations that the product was safe, functional, and ready for use, plaintiff rubbed the Coppertone on her skin thereby causing severe burns to her body.”
UPDATE
On Aug. 23, U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg ordered the case be dismissed within two weeks, if proper service of the complaint was not made to all its defendants.
“A review of the Court’s records does not show that service has been perfected on the defendants in the above-captioned matter. In order to eliminate a delay in bringing this case to trial, service must be made within 14 days of the date of this order in accordance with Rule 4(m) of the Federal Rules of Civil Procedure,” Goldberg said.
“Proof of service must be filed with the Clerk’s Office within five days of service. If service is not made within the time set forth above, the Court will dismiss the complaint against the defendants in this case without prejudice for lack of prosecution.”
For counts of strict liability, negligence, breach of implied warranty of merchantability, breach of express warranty and violation of the Unfair Trade Practices and Consumer Protection Law, the plaintiff is seeking damages in excess of $50,000, plus costs.
The plaintiff is represented by Gary L. Bailey Jr. of Bailey & Associates, in Philadelphia.
The defendants are represented by Arnd N. Von Waldow of Reed Smith, in Pittsburgh.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02176
Philadelphia County Court of Common Pleas case 201101415
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com