PHILADELPHIA – A federal judge has remanded to state court the case of a Doylestown couple who alleged that Costco is liable for severe bodily injuries suffered by the wife-plaintiff while shopping in the company’s store in North Wales.
Galina Dvoirin and Jury Kheifetz of Doylestown first filed suit in the Montgomery County Court of Common Pleas on Feb. 10 versus Costco Wholesale Corporation of North Wales.
“On Sept. 16, 2020, plaintiff Galina Dvoirin was lawfully present in the premises when she slipped, stumbled and fell because she had stepped onto an accumulation of a slippery gel-like substance on the floor of the premises, in the vicinity of the check-out area. The fall caused Dvoirin to suffer serious injuries,” the suit said.
“The gel-like substance on the floor of the premises was a defective condition which rendered the premises unsafe, and which posed a great risk to business invitees. The defective condition was a danger, menace, nuisance, trap and/or hazard to persons lawfully in the vicinity of the said defective condition.”
The suit says Costco was solely responsible and at fault for the plaintiff’s injuries, which included a right knee meniscus tear, right knee contusion, right knee strain and sprain, left knee contusion, strain and sprain superimposed on previously asymptomatic degenerative disease, lumbar strain and sprain, left wrist injury, anxiety and severe shock to the nerves and nervous system.
“Defendant Costco exclusively owned, operated, maintained, possessed, controlled and/or managed the premises when plaintiff Dvoirin was injured. The defective condition of the premises was created by defendant Costco, or it had existed for a considerable time prior to plaintiff Dvoirin’s fall, such that defendant Costco had either actual and/or constructive notice of the defective condition. Defendant Costco had a duty to correct, remedy, repair, warn about and/or eliminate the said defective condition,” the suit stated.
The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on March 10, on the grounds of diversity of citizenship between the parties and the amount in damages exceeding $75,000.
“This suit is of a civil nature and involves a controversy between citizens of different states. Plaintiffs are citizens of the Commonwealth of Pennsylvania. Defendant, Costco Wholesale Corporation, is a corporation organized under the laws of the State of Washington with their principal place of business at 999 Lake Drive, Issaquah, WA 98027. The complaint asserts claims against the defendant, Costco Wholesale Corporation, for personal injuries allegedly sustained in an incident that occurred on Sept. 16, 2020, at the Costco Warehouse located at 740 Upper State Road, North Wales, PA 19454.,” according to the defendant’s removal notice.
“Defendant, Costco Wholesale Corporation, seeks to remove this matter to the U.S. District Court for the Eastern District of Pennsylvania. Defendant, Costco Wholesale Corporation, asserts that the amount in controversy in this matter exceeds $75,000. As the moving party, defendant, Costco Wholesale Corporation, bears the burden of proving that jurisdiction is proper in federal court. Plaintiffs have declined to stipulate to limit their damages to $75,000 in order to avoid the jurisdiction of this Court, as confirmed in an email exchange with Mark Richter, Esq. on March 10.”
On April 13, counsel for all parties concerned filed a mutual stipulation to limit damages in the case.
“Plaintiffs Galina Dvoirin and Jury Kheifetz and defendant Costco Wholesale Corporation, through their attorneys and in exchange for good and valuable consideration, do hereby stipulate and agree that the amount of damages sought and recoverable by plaintiffs in this action does not exceed the sum of $75,000 and that any award, judgment or verdict in this matter in excess of $75,000 shall be molded to reduce the award, judgment and/or verdict to $75,000 (or if appropriate, to a lesser amount),” the stipulation read.
UPDATE
As a result, U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston approved the stipulation, also on April 13.
“Upon consideration of the parties’ stipulation to limit damages and letter asking the Court to remand the case, it is ordered that the stipulation is approved and this case is remanded to the Montgomery County Court of Common Pleas. The Clerk of Court shall mark this matter closed,” Marston said.
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of $50,000, plus costs.
The plaintiffs are represented by Jeffrey R. Lessin of Jeffrey R. Lessin & Associates, in Philadelphia.
The defendant is represented by Warren F. Sperling of Bennett Bricklin & Saltzburg, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-00920
Montgomery County Court of Common Pleas case 2022-01938
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com