PHILADELPHIA – Walmart denies complicity in alleged liability shared between it and three other companies for severe burns a Montgomery County woman said she suffered after using Coppertone sunscreen.
Jessica Hutt of Palm 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 states.
“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
Outside of admitting it sells Coppertone products, Walmart argued that it was not liable for any injuries the plaintiff suffered, in an answer to the complaint filed on Sept. 9 which further provided 15 affirmative defenses.
“The complaint fails to state a cause of action and/or claim against Walmart upon which relief can be granted. Defendants were not negligent and breached no express or implied warranties. Plaintiff’s claims are barred by the doctrines of waiver, unclean hands and estoppel. Plaintiff’s claims are barred by the doctrine of laches or the applicable statute of limitations. Walmart denies that it designed, manufactured, distributed and/or sold the product allegedly made the basis of this litigation,” the defenses stated, in part.
“The claims asserted against Walmart in the premises of this litigation are barred and/or preempted by the applicable standards, codes, rules and/or regulations promulgated by the applicable federal and/or state entities, bodies and/or agencies governing and/or controlling the design, production, inspection, testing, sale and/or labeling of such products. Plaintiff has failed to meet and/or satisfy any and/or all conditions precedent to asserting a claim and/or recovering for any breach of warranty. Plaintiff’s negligent conduct was a proximate cause, or the proximate cause of plaintiff’s alleged harm and/or damages.”
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 and Roderick L. Foxworth Jr. of The Foxworth Law Firm, 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