PHILADELPHIA – Bayer and Merck have been dismissed from litigation which alleged that they, along with Walmart and Beiersdorf, were collectively liable for severe burns a Montgomery County woman allegedly 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 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.”
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 defendants collectively filed a motion to dismiss on Oct. 20, denying the plaintiff’s allegations and contending the case should be dismissed for improper service. The defendants added that they were not properly served when the complaint was first filed in March 2021, and thus, had no notice that litigation had been filed against them.
UPDATE
Per the terms of a stipulation reached on Jan. 9, Bayer and Merck were dismissed from the case without prejudice, meaning it is possible that they could be re-added as defendants at a later time.
“It is hereby stipulated and agreed by and between the parties hereto, as evidenced by the signatures of their attorneys set forth herein below, that: 1) Defendants Bayer Corporation and Merck & Co. are hereby dismissed as party defendants in the within action without prejudice; and 2) In the event that discovery proves that Bayer Corporation and/or Merck & Co. are liable, plaintiff is not barred by the applicable statute of limitations,” the stipulation said.
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 and Thomas J. Galligan 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