PHILADELPHIA – Walmart is seeking to dismiss litigation filed by the Baltimore-based parents of an infant who died from suffocation, allegedly after being placed in the Boppy Original Newborn Lounger device.
Zaleiph Wooten and Tawana Patina Reid (individually and as co- administrators of the Estate of Z.W. Jr., a deceased minor) initially filed suit in the Philadelphia County Court of Common Pleas on Oct. 7 versus The Boppy Company, LLC of Golden, Colo., Walmart, Inc. of Bentonville, Ark., Artsana U.S.A., Inc. (doing business as “Chicco”) of Lancaster, Artsana S.P.A. (doing business as “Artsana Group”) of Grandate, Italy, ABC Companies I-X and John Does I-X.
“Plaintiffs obtained the Boppy Original Newborn Lounger as a gift through their Walmart, Inc. baby gift registry. The Boppy Loungers, including the Boppy Original Newborn Lounger, are padded pillow “loungers” for infants. The Boppy Loungers, including the Boppy Original Newborn Lounger, are designed, marketed, sold and manufactured by the defendants,” the suit said.
“Due to the defective and unreasonably dangerous design of the Boppy Loungers, including the Boppy Original Newborn Lounger, children placed in the loungers are at an increased risk of asphyxiation, hypoxia, anoxia, suffocation, airway obstruction and death due to the positions, angles, and padding of the defectively designed Boppy Loungers, including the Boppy Original Newborn Lounger.”
The suit adds the defendants “knew or should have known that placing infants in the Boppy Original Newborn Lounger could cause infants to suffer catastrophic injuries and death” – especially since on Sept. 23, 2021, the Boppy Loungers, including the Boppy Original Newborn Lounger, were recalled, because “infants could suffocate if they rolled, moved, or were placed on the lounger in a position that obstructs breathing, or rolled off the lounger onto an external surface, such as an adult pillow or soft bedding that obstructs breathing.”
“On [an unknown date], plaintiffs placed their infant son Z.W. Jr., in the Boppy Original Newborn Lounger. Shortly thereafter, plaintiffs’ son was discovered unresponsive in the Boppy Original Newborn Lounger. After being found unresponsive in the Boppy Original Newborn Lounger, Z.W. Jr. was rushed to the hospital where he was pronounced dead,” the suit states.
“Due to the unreasonably dangerous and defective design of the Boppy Original Newborn Lounger, as described throughout this complaint, plaintiffs’ son, Z.W. Jr., was caused to asphyxiate and suffocate to death in the Boppy Original Newborn Lounger on [an unknown date]. Defendants’ manual and website acknowledge the risk of severe injury or death to infants placed to lay in the Boppy Original Newborn Lounger through asphyxiation and they proceeded to market and sell the Boppy Original Newborn Lounger anyway, and continued to do so after learning of infant injuries and deaths.”
UPDATE
The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on Oct. 28, on the grounds of diversity of citizenship between the parties and the amount of damages being sought.
Subsequently, on Nov. 4, Walmart filed a motion to dismiss the case on the grounds of improper jurisdiction, wanting the case to either be dismissed or transferred to what it believes is a proper venue. Walmart feels that Pennsylvania has no connection to the events at issue in the case.
“Walmart respectfully requests that this court outright dismiss plaintiffs’ Pennsylvania action pursuant to Rule 12(b)(2) due to the lack of personal jurisdiction, general or specific, over Walmart and the remaining defendants. Plaintiffs have already elected an alternative forum in Delaware where general jurisdiction against Walmart exists, so a dismissal will not work prejudice to the claims. Should this Court be unwilling to dismiss the action, Walmart respectfully requests that this Court transfer the matter to the U.S. District Court of Maryland, Northern Division, where plaintiffs reside and are citizens, or the U.S. District Court for the District of Delaware, where there is general jurisdiction against Walmart,” the dismissal motion stated, in part.
For counts of negligence, fraudulent concealment, strict liability (defective design and manufacture), strict liability (failure to warn), negligent misrepresentation, common law fraud, negligent infliction of emotional distress, breach of express warranty, breach of implied warranty, violation of the Unfair Trade Practices and Consumer Protection Law, gross negligence, survival and wrongful death, the plaintiffs are seeking all compensatory and punitive damages recoverable under Pennsylvania law, in excess of the local arbitration rules and exclusive of delay damages, pre-judgment interest, post-judgment interest and costs.
The plaintiffs are represented by Shanin Specter, Michael A. Trunk and Aaron L. Dunbar of Kline & Specter, in Philadelphia.
Defendant Walmart, Inc. is represented by Patrick J. McDonnell and Sean Ruckenstein of McDonnell & Associates, in King of Prussia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-04341
Philadelphia County Court of Common Pleas case 221000594
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com