PITTSBURGH – Sam’s Club has been dismissed from litigation filed over burn injuries a Western Pennsylvania woman says she suffered when a plastic container allegedly failed and the meatballs fell onto her left foot.
Marie Walker of Coraopolis first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 17 versus Fit & Fresh, Inc. of Providence, R.I. and Sam’s East, Inc., of West Mifflin.
“Marie Walker purchased a JAXX FitPak meal prep backpack, which included multiple plastic containers, manufactured by Fit & Fresh, Inc., from Sam’s Club located at 2252 Century Drive, West Mifflin, Pennsylvania, 15122. The JAXX FitPak meal prep backpack included numerous plastic food storage containers and a drink shaker,” the suit said.
“Walker had taken out one of the plastic containers from the JAXX FitPak meal prep backpack and was using the plastic container for the first time. She placed leftover meatballs into the plastic container and put them in the refrigerator. This plastic container was advertised, marketed and manufactured to be microwave safe.”
The next day, on or about May 23, 2019, Walker removed the plastic container manufactured by Fit & Fresh, Inc. from the refrigerator and placed the plastic container with meatballs into her microwave.
Walker placed the plastic container into the microwave and heated the meatballs for approximately 1 minute and 30 seconds, then opened the microwave door and removed the plastic container from the microwave.
As Walker removed the plastic container from the microwave, she felt a burning sensation on her bare foot, looked down and realized that the bottom of the plastic container had melted fully through to create a hole in the plastic container and that the contents of the plastic container had fallen onto her left foot.
The suit said that the plastic container, which was advertised, marketed and manufactured to be microwave safe, had a hole in the bottom of the container with burn marks on the plastic where the meatballs were located inside the plastic container.
“Later that day, Walker presented to UPMC Magee Women’s Hospital because her left foot was hurting, and she had a blister. Walker was given medication for her burn and was sent home from the hospital. Walker’s left foot burn was diagnosed as 3rd degree, the most serious burn. In the days after, her pain started to get worse and on May 25, 2019, Walker went to the UPMC Mercy Emergency Room, where she was found to have deep partial full thickness burn with cellulitis,” per the suit.
“On May 28, 2019, Walker returned to UPMC Mercy for failed outpatient cellulitis treatment, was admitted for IV antibiotic treatment and her left foot burn was debrided. Walker remained at UPMC Mercy for three days and was discharged home on May 31, 2019. Walker continued to treat in the months following the incident and has been left with a permanent scar on her left foot, nerve damage and nerve pain.”
Fit & Fresh filed an answer to the complaint, denying its allegations and providing 23 affirmative defenses on Aug. 6.
“Plaintiff fails to state a claim upon which relief may be granted. Fit & Fresh violated no duty owing to the plaintiff. No product which was designed, manufactured, sold and/or distributed by Fit & Fresh was defective and/or contained any dangerous condition. Any and all damages or injuries alleged to have been suffered by plaintiff may have been caused by the comparative and/or contributory negligence of plaintiff. The claims asserted may be barred or otherwise diminished by the comparative and/or contributory negligence of plaintiff pursuant to the applicable comparative negligence statutes, including the Fair Share Act,” the answer’s defenses stated, in part.
“Any and all injuries and/or damages alleged to have been suffered by plaintiff were caused solely by the negligence of independent third parties and/or entities over whom answering defendant exercised no control and is in no way liable. Alternatively, any amount which plaintiff might be entitled to recover against Fit & Fresh, Inc. must be reduced by the amount of damages attributable to the intervening acts and/or omissions of such persons. Plaintiff’s alleged injuries may have been caused by an unforeseeable intervening and/or superseding cause. This action may be barred by the applicable statute of limitations.”
Sam’s East, Inc. filed an answer to the complaint on Oct. 7, denying its assertions and demanding strict proof of same at trial, along with providing 25 separate affirmative defenses.
“Plaintiff’s complaint fails to state a cause of action against Sam’s Club upon which relief may be granted. The subject product allegedly sold by Sam’s Club was not defective nor unreasonably dangerous to consumers. Sam’s Club pleads the affirmative defenses of assumption of the risk, comparative negligence and contributory negligence as may be applicable to the facts and claims made in this matter. Sam’s Club denies that its conduct and/or any product placed in the stream of commerce by Sam’s Club was in any fashion a proximate cause of plaintiff’s alleged injuries or damages,” the answer’s defenses stated, in part.
“The actions and/or inactions of plaintiff was the sole cause or, in the alternative, the intervening and/or superseding cause of the incident and all alleged injuries and/or damages in the her complaint. Plaintiff’s claims are limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. Section 7102 et seq., and plaintiff’s own negligence is a bar to and/or may diminish any claim against Sam’s Club to the extent of said negligence and/or culpable conduct.”
Sam’s Club additionally denied the product was in any way defective and cited the tenets of the Fair Share Act, seeking to limit “any liability of Sam’s Club, if any, to a proportion of the total dollar amount awarded as damages in ratio of the amount of Sam’s Club’s liability, to the amount of liability attributed to all defendants or other persons to whom liability is apportioned, including both named and unnamed parties.”
UPDATE
In a Feb. 7 mutual stipulation from counsel for both the plaintiff and Sam’s Club, it was agreed that claims against the retailer would be dismissed without prejudice.
“Plaintiff Marie Walker hereby agrees to discontinue and dismiss, without prejudice, all claims asserted against defendant, Sam’s East, Inc. (doing business as “Sam’s Club #6679”) pursuant to Federal Rule of Civil Procedure 41(a),” the stipulation stated.
For multiple counts of strict liability, negligence, breach of implied warranties, breach of express warranties, the plaintiff is seeking damages in excess of the jurisdictional limit for arbitration, together with costs, delay damages, pre-judgment and post-judgment interest, and any other damages which may be permitted by law, plus a trial by jury.
The plaintiff is represented by Mark D. Troyan of Robert Peirce & Associates, in Philadelphia.
The defendants are represented by Elizabeth Farina Collura of William J. Ferren & Associates, plus Trisha A. Gill and Kyle Alan Peterson of Litchfield Cavo, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00650
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com