PHILADELPHIA – Wrongful death litigation brought by the parents of an infant who died from suffocation, allegedly after being placed in the Boppy Original Newborn Lounger device, will either be remanded to state court or remain in federal court, depending on the forthcoming decision of a presiding federal judge.
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 added 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 stated.
“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.”
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.
All parties involved agreed to the removal of punitive damages from the case through mutual stipulation on Nov. 17.
“It is hereby stipulated and agreed, by and among counsel for plaintiffs and counsel for defendants Artsana U.S.A., Inc. d/b/a Chicco and The Boppy Company, LLC, as identified below, that all claims for punitive damages contained within plaintiffs’ complaint as to Artsana U.S.A., Inc. d/b/a Chicco and The Boppy Company, LLC are hereby stricken and dismissed. This dismissal is without prejudice to plaintiffs’ right to move for leave to amend the complaint to reassert these claims for punitive damages after the completion of discovery,” the stipulation read.
“To the extent the statute of limitations applies to a claim for punitive damages, which plaintiffs deny, the parties agree that the statute of limitations is tolled as to punitive damages relating back to the date plaintiffs filed their complaint, which was Oct. 7, 2022. It is further agreed to and stipulated by the parties that entering into and signing this stipulation is not deemed or construed, in any manner, to be a waiver of jurisdiction by The Boppy Company, LLC.”
UPDATE
The plaintiffs motioned to remand the case to state court on Nov. 23, arguing that the initial removal of the case was improper.
“First, not all defendants consented to joinder. Second, Boppy and Walmart have failed to meet their heavy burden of proving that plaintiffs’ claims against Artsana U.S.A. are ‘wholly insubstantial and frivolous.’ The case should be remanded to the Philadelphia County Court of Common Pleas where additional cases against Boppy, Artsana U.S.A., Artsana S.p.A. and other retailers who have sold their defective product currently are pending. Finally, plaintiffs are entitled to fees and costs,” the remand motion stated, in part.
“For fraudulent joiner to apply, Boppy and Walmart must prove plaintiffs’ claims against Artsana U.S.A. are ‘wholly insubstantial and frivolous’ and that plaintiffs lack any good faith intention of prosecuting them. The Third Circuit has found this standard to be met on only three occasions in the Court’s history. To overcome this high bar, Boppy and Walmart cite to unreported cases where the court pierced the pleadings and evaluated evidence outside their four corners in assessing a claim of fraudulent joinder. But under all the relevant authorities, self-serving affidavits like the one on which Boppy and Walmart rely have been flatly rejected as a basis for finding fraudulent joinder because they inherently give rise to a dispute of fact.”
The defendants separately filed responses to the remand motion on Dec. 14, seeking it be denied and countering that the defendants were in fact joined fraudulently.
“Plaintiffs seek remand based upon the ‘forum defendant rule,’ but the only potential ‘forum defendant’ identified by plaintiffs is Chicco, as all other parties maintain citizenship outside of the Commonwealth of Pennsylvania. Though Chicco is a citizen of Pennsylvania, as will be discussed further below, it had no involvement in the manufacture, design, marketing, sale, or distribution of the product. Moreover, plaintiffs have not proffered any specific factual allegations in either the pleadings or in their motion to remand that identify what Chicco did with respect to the product,” per Walmart’s response.
“In fact, plaintiffs knew at the time the suit was filed that Chicco was not involved in the manufacture, design, marketing, sale or distribution of the product. Since the time the suit was filed, Boppy has judicially admitted that it manufactured, designed, marketed, sold, and distributed the product, not Chicco. Uncontested affidavits have also been submitted by both Chicco and Walmart that establish Chicco’s lack of involvement in the case.”
Walmart argued that in this case, Chicco is a “straw man” party, joined solely to defeat diversity and that the plaintiffs “plead no specific factual allegations to substantiate what they allege Chicco did with respect to the product, and plaintiffs’ motion for remand provides no additional insight into their specific claims against Chicco.”
“Chicco had no role in the design, marketing, sale, or manufacture of the product. Chicco is a complete stranger to the facts underlying this lawsuit. Plaintiffs have sued the wrong party and spun from whole cloth baseless allegations pertaining to Chicco’s relationship with the product in an effort to create a sham ‘forum defendant,” the response continued.
“In this matter, diversity is complete, and this Court has original jurisdiction. The plaintiffs are citizens of the State of Maryland. None of the properly named and joined defendants are citizens of the State of Maryland. Further, the amount in controversy is in excess of $75,000, therefore, the requirements for original diversity jurisdiction under 28 U.S.C. Section 1332 are satisfied.”
A hearing on the remand motion was held on Jan. 18 before U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston, whose decision is forthcoming.
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 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 Michael A. Trunk and Charles L. Becker of Kline & Specter, in Philadelphia.
The defendants are represented by Patrick J. McDonnell and Sean Ruckenstein of McDonnell & Associates in King of Prussia, plus John J. Snyder, Mary Ann Capriotti, Thomas A. Kuzmick and William J. Carr of Rawle & Henderson, in Philadelphia.
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