PITTSBURGH – A federal judge has denied Dollar Tree’s attempt to secure a summary judgment dismissal of the allegations of a Pittsburgh woman, who claimed that her special needs daughter was disfigured on the back of her head by an elastic headband she had purchased at one of its stores.
Chelsea Chambers (an incapacitated person, by and through Antoinette Chambers, her natural and court appointed guardian) of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Jan. 19 versus Greenbrier International, Inc. (doing business as “Dollar Tree Merchandising”), of Chesapeake, Va.
According to the litigation, Chelsea was a “19-year-old non-verbal female with a past medical history positive for a chromosomal abnormality and an autism spectrum disorder who suffered from significant developmental delays, including but not limited to mental retardation.”
“In or about June of 2020, Ms. Chambers purchased from defendant Dollar Tree a packet of elastic headbands for Chelsea to place around her head for the purpose of keeping her hair in place. The headbands in question came in one packet of approximately seven elastic fabric bands and labeled ‘Basio Solutions Narrow Elastic Headwraps’. The packaging in which the headbands were contained did not include instructions, warnings and/or sizing information,” the suit said.
“Subsequent to Ms. Chambers purchase of the packet of headbands from defendant Dollar Tree, Chelsea and Ms. Chambers went on a family vacation to North Carolina. While on vacation, Chelsea placed one of the headbands around her head to keep her hair in place. A few days after returning to Pennsylvania, on or about June 26, 2020, Ms. Chambers noticed that Chelsea appeared agitated and uncomfortable and was holding her head.”
Upon examining her scalp, the suit explains Ms. Chambers saw what appeared to be “a white creamy substance on her scalp and noticed a strong, unidentified smell emanating from Chelsea’s head, [and] Ms. Chambers also felt what appeared to be an indentation in this area and the presence of a hard object embedded in her scalp.”
As instructed, on June 26, 2020, Ms. Chambers took Chelsea to the emergency department at UPMC Children's Hospital of Pittsburgh. Following an examination by emergency department physicians, Chelsea was found to have a hair tie embedded in her scalp, which was “extended around her temple areas bilaterally, as well as the presence of a purulent and foul smell emanating from the area, and as a consequence of these findings, Chelsea was immediately started on antibiotics and admitted to CHP.”
CHP plastic surgery physicians noted “significant edema and occipital pressure ulceration of the scalp proximal to the embedded headband, as well as the presence of a malodorous odor and purulence.”
The embedded headband was removed and the area cleaned thoroughly.
“Due to the depth of the infection observed on Chelsea’s scalp, a CT head scan with contrast was ordered to assess for osteomyelitis. The results of the CT scan revealed the presence of a large scalp collection possibly representing a subgaleal abscess. As a consequence of this finding, Chelsea was started on IV and topical antibiotics to treat the infected area,” the suit stated.
“Following a three-day admission at CHP, Chelsea was discharged home on a continued regimen of oral and topical antibiotics. Detailed instructions and training were given to Ms. Chambers regarding Chelsea’s medication administration and how to wash and clean Chelsea’s wound and perform proper dressing changes.”
The formation of a scar at the site where the headband was embedded was also noted.
“To date, Chelsea continues to suffer from pain in and around the area where the headband was embedded. Pustules will often form over the scar which require specific treatment from Ms. Chambers. The wide scar created by the headband did not fully close and because portions of the scar remain open, Chelsea will be required to undergo scar revision surgery. The sole and proximate cause of the aforementioned occurrence and the injuries and damages suffered by plaintiff Chelsea Chambers was the negligence, recklessness and carelessness of defendant,” the suit said.
Dollar Tree filed a notice to remove the case to federal court on the grounds of diversity of citizenship between the parties and the amount in controversy exceeding the jurisdictional minimum.
“Defendant is a citizen of Delaware and Virginia at all relevant times. Therefore, plaintiff and defendant are completely diverse in citizenship. Plaintiff seeks compensation from defendant for these alleged injuries in excess of $50,000. Given the allegations of severe pain and suffering, medical treatment, medical expenses and the requirement for continuing care, the amount in controversy in this matter exceeds $75,000. Compulsory arbitration in Allegheny County has a $50,000 limit. Allegheny County Rules of Civil Procedure, Local Rule 1301. Thus, while plaintiff does not designate a specific amount of damages, the nature of the allegations and damages requested in the complaint demonstrate that plaintiff’s claims as plead exceed the jurisdictional minimum ,” the removal notice stated.
On Feb. 24, the defendant answered the complaint and denied it sold such unsafe headbands, in addition to providing of a series of affirmative defenses arguing similar points.
“Defendant did not breach any duty owed to plaintiff. Plaintiff may have failed to join necessary and indispensable parties to this action. Recovery may be barred by the doctrines of estoppel and/or res judicata. Process and/or service of process was insufficient. The complaint fails, in whole or in part, to state a claim upon which relief may be granted. Plaintiff assumed any risk of injury by using the headbands in an unreasonable manner, or in a way not consistent with the ordinary use or purpose,” per the defenses, in part.
“Any actions or omissions by defendant, which are specifically denied, were not the proximate or factual cause of plaintiff’s alleged injuries and damages. Upon information and belief, plaintiff failed to mitigate her damages, the effect of which is to bar or reduce the recoverable damages. Some of, or all of the damages, requested in the complaint are not recoverable in this action. Plaintiff’s damages, if any, were caused and brought about by an intervening and superseding cause and were not caused by defendant. Plaintiff’s alleged injuries, if any, were caused by improper use of the headbands.”
UPDATE
After an unsuccessful session of mediation, defendant Greenbrier International, Inc. filed a motion for summary judgment on Sept. 8.
“In the course of litigation, GBI propounded discovery requests (interrogatories and requests for production of documents) to plaintiff. In response to GBI’s discovery requests, plaintiff attested that plaintiff’s guardian purchased the headband from the Dollar Tree store located in Penn Hills Shopping Center on June 3, 2020 at 4:43 p.m. as part of a purchase of multiple items that totaled $26.12 and used her SECU debit card to do so. Plaintiff also provided a copy of the headband’s ‘original cardboard packaging in plaintiff’s guardian’s possession’ which shows a product SKU of 192453. Plaintiff’s counsel also produced a redacted excerpt from Antoinette Chambers’ bank records which shows the date, time, amount and method of the alleged purchase,” the motion stated.
“As part of its regular and usual course of business, Dollar Tree Stores, Inc. keeps detailed records of transactions made at Dollar Tree Stores. Relevant to the plaintiff’s allegations, Dollar Tree Management’s Director of Business Services reviewed all purchases made at the Dollar Tree store identified by plaintiff for the dates of June 2, 2020, June 3, 2020 and June 4, 2020 and verified that there were no transactions made from that store with a total price of $26.12 and which included the product with the SKU identified by the plaintiff.”
According to the defendant Greenbrier International, the plaintiff’s claims should be subject to summary judgment dismissal because “they are all based upon the fundamental premise that plaintiff’s guardian purchased the headbands from the Dollar Tree store” and “because this fundamental premise is demonstrably incorrect, all of plaintiff’s claims are meritless and summary judgment is appropriate.”
However, U.S. Magistrate Judge Lisa Pupo Lenihan denied the motion without prejudice on Sept. 13.
For counts of negligence, strict liability for defective product and breach of warranty, the plaintiffs are seeking damages in excess of the arbitration limits of the Court and a trial by jury.
The plaintiff is represented by Jon R. Perry of Rosen Louik & Perry, in Pittsburgh.
The defendant is represented by Danielle T. Bruno McDermott of Schnader Harrison Segal & Lewis, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00311
Allegheny County Court of Common Pleas case GD-22-000705
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com