JOHNSTOWN – A man who sued the TJ Maxx department store company after needing abdominal surgery to remove an accidentally ingested grill brush bristle, from a brush he bought at the store, has settled his injury claims.
Harry Mellott and Kris Mellott of Hopewell first filed suit in the Bedford County Court of Common Pleas on May 20, 2020, versus Lifetime Brands, Inc. of Garden City, N.Y. and The TJX Companies, Inc. (doing business as “TJ Maxx) of Framingham, Mass.
(The complaint was removed to the U.S. District Court for the Western District of Pennsylvania on July 6, 2020.)
“In or around the beginning of July 2018, plaintiffs purchased a BBQ Soft Grip 2-Sided Grill Brush with Cleaning Fins designed, manufactured, advertised, sold and/or distributed by defendant Lifetime Brands, Inc. and sold and/or supplied by defendant the TJX Companies, Inc. at a TJ Maxx store in Pennsylvania. In or around the first week of July 2018, plaintiffs cleaned their gas grill with the grill brush previously described,” the suit stated.
“On or about July 4, 2018, Harry Mellott began experiencing abdominal pain. On or about July 5, 2018, Harry presented to the emergency department of UPMC Bedford with complaints of abdominal pain. Radiology tests documented a metallic foreign body, which appeared to be an ingested grill bristle. Harry was transferred to UPMC Altoona for medical care, including surgery to remove the grill bristle.”
On July 8, 2020, counsel for Lifetime Brands, Inc. filed an answer to the complaint which denied the plaintiffs’ allegations and asserted 15 separate affirmative defenses. Among others, these included the plaintiffs failing to state a claim, being contributorily negligent to the injuries Harry suffered, the assumption of risk doctrine and being barred through both the Second and Third Restatement of Torts.
The TJX Companies filed an answer to the lawsuit on July 23, 2020, denying the plaintiff’s charges as conclusions of law and demanding strict proof of same at trial, while asserting 21 separate affirmative defenses. Among them are the following:
• Plaintiffs have failed to state a cause of action upon which relief can be granted;
• Plaintiffs have failed to sue the correct party that does business in the Commonwealth of Pennsylvania. While The TJX Companies does business as “TJ Maxx”, it does not do business as TJ Maxx in the Commonwealth of Pennsylvania;
• To the extent that it may be established through discovery, plaintiffs’ complaint is barred by the applicable statute of limitations;
• This answering defendant herein asserts that plaintiffs have failed to state a cause of action for breach of either expressed or implied warranty because no such warranty formed the basis of any bargain.
UPDATE
After two additional years of litigation, the case arrived at a conditional settlement on July 18. Terms of the settlement were not disclosed, and the presiding judge issued an order to that effect.
“The Court having been advised by U.S. Magistrate Judge Patricia L. Dodge that a settlement has been reached, and the only remaining matter is the submission of a stipulation of settlement and dismissal, accordingly, with no further action being required by the Court at this time, the following order is entered,” U.S. District Court for the Western District of Pennsylvania Judge Stephanie L. Haines said.
“It is ordered that the Clerk shall remove this case from the docket for administrative purposes. Nothing contained in this order shall be construed as a final dismissal or disposition of this case and, should further proceedings in it become necessary, the case shall be reinstated to the docket upon written request of either party. Jurisdiction is retained over the completion and enforcement of settlement.”
The plaintiffs are represented by Benjamin T. Wilt and Daniel S. Schiffman of Schiffman Firm, in Pittsburgh.
The defendants are represented by Clem C. Trischler and Melissa B. Catello of Pietragallo Bosick & Gordon, Warren L. Siegfried and Richard S. Canciello of Wayman Irvin & McAuley, both also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 3:20-cv-00126
Bedford County Court of Common Pleas case 440-2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com