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, has been remanded to state court.
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, 2022 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, 2022, on the grounds of diversity of citizenship between the parties and the amount of damages being sought.
Subsequently, on Nov. 4, 2022, 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.
All parties involved agreed to the removal of punitive damages from the case through mutual stipulation on Nov. 17, 2022.
The plaintiffs motioned to remand the case to state court on Nov. 23, 2022, 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, 2022, 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, after which the case was transferred to the court of U.S. District Court for the Eastern District of Pennsylvania Judge Kai N. Scott on Feb. 23.
UPDATE
In a memorandum opinion issued Aug. 14, Scott ordered that the case would indeed be remanded to the Philadelphia County Court of Common Pleas.
“Plaintiffs Zaleiph Wooten and Tawana Patina Reid filed a products liability lawsuit in the Philadelphia County Court of Common Pleas, alleging that a defective Boppy Original Newborn Lounger caused the death by asphyxiation of their newborn son, Z.W. Jr. Defendant Walmart, Inc. removed the action to federal court and defendant The Boppy Company joined Walmart in the removal. Mr. Wooten and Ms. Reid moved to remand the action back to state court. The parties agree that one of the defendants Artsana U.S.A., Inc. (doing business as “Chicco”) is a Pennsylvania citizen,” Scott said.
“The parties acknowledge that the forum defendant rule, codified at 28 U.S.C. Section 1441(b)(2), normally prevents the removal of a matter filed in Pennsylvania state court on the basis of diversity jurisdiction, if one of the defendants is a citizen of Pennsylvania. But the defendants contest that Artsana U.S.A.’s citizenship can be ignored because Artsana U.S.A. is fraudulently joined and a nominal party to this action. I find that Artsana U.S.A. is neither fraudulently joined nor a nominal party, so I shall remand this action. However, I will deny the plaintiffs’ request for attorneys’ fees and costs, because the defendants had an objectively reasonable basis for seeking removal.”
Scott added that the parties agreed that complete diversity existed between the parties: The plaintiffs are citizens of Maryland, Walmart is a Delaware corporation with its principal place of business located in Arkansas, Boppy is a limited liability company whose members are citizens of Colorado, Artsana S.p.A. is a citizen of Italy; and Artsana U.S.A. is a New Jersey corporation with its principal place of business located in Pennsylvania.
However, the plaintiffs argued that the forum defendant rule prevented this action from being removable. According to the forum defendant rule, a civil action cannot be removed to federal court on the basis of diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”
Walmart and Boppy conceded that Artsana U.S.A. is a Pennsylvania citizen, and this action was filed in Pennsylvania state court. Instead, they argued that Artsana U.S.A.’s citizenship should be ignored because it is (1) fraudulently joined and (2) a nominal party. But Scott was unpersuaded by that argument.
“Here, the plaintiffs have produced evidence that (1) Artsana U.S.A. and Boppy are subsidiaries of the same parent company, Artsana S.p.A., and (2) Artsana U.S.A.'s ‘Chicco.’ logo is clearly stamped right below Boppy’s logo on the packaging of Boppy Original Newborn Loungers. Defense counsel attempted at oral argument to minimize the presence of the ‘Chicco’ logo on the packaging of Boppy Original Newborn Loungers as a mere ‘co-branding effort’ by the subsidiaries’ parent company. This argument is unpersuasive, and defense counsel made no effort to supplement this argument with case law or support it with evidence,” Scott said.
“But even if the defendants had persuasively crafted the argument and supported it with evidence of the limitations of the co-branding agreement, that would at most illustrate a dispute of material fact as to Artsana U.S.A.’s possible liability for defective Boppy Original Newborn Loungers. It may turn out that the apparent manufacturer doctrine does not apply to Artsana U.S.A. in this case, but it cannot be said that the plaintiffs have no reasonable basis to support their products liability claims against Artsana U.S.A. – there is at least a possibility that a state court would find that the co-branding establishes Artsana U.S.A.’s liability.”
Furthermore, Boppy argued that Artsana U.S.A.’s citizenship can be disregarded because it was merely a nominal party in this action. But, Scott found that “Boppy’s nominal party argument forwards no additional grounds as to why Artsana U.S.A. could be classified as a nominal party; this argument appears to be coextensive with its fraudulent joinder argument and [saw] no reason to find that Artsana is a nominal party in this litigation.”
Finally, Scott reasoned they could not conclude “as a matter of law that Walmart and Boppy lacked an objectively reasonable basis for seeking removal and opposing the plaintiffs’ motion to remand.”
“The defendants have cited several cases in which District Courts have pierced the pleadings and credited affidavits and other documents purporting to show that defendants were not involved in litigation or were not liable. As a practical matter, it was appropriate for the defendants to rely upon cases decided in the Eastern District of Pennsylvania to support removal: Since District Court decisions regarding motions to remand are rarely immediately appealable, the Third Circuit has not had many occasions to reach this issue. Those District Court cases were not ultimately persuasive here, but it was not unreasonable for the defendants to rely on them,” Scott said.
“Furthermore, nothing indicates that the defendants sought removal to simply prolong litigation or impose burdensome litigation costs upon the plaintiffs: It is evident that defense counsel (and plaintiffs’ counsel) devoted considerable effort and care to this phase of litigation. Notably, both Boppy and Walmart then filed motions to dismiss or, in the alternative, to transfer venue. Thus, it seems that the defendants’ motivation for removal is to move the litigation to forums that they deem more desirable, rather than for any obviously dilatory purpose. For these reasons, the plaintiffs’ request for attorneys' fees and costs under 28 U.S.C. Section 1447(c) is denied.”
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 were represented by Michael A. Trunk and Charles L. Becker of Kline & Specter, in Philadelphia.
The defendants were represented by Patrick J. McDonnell and Sean Ruckenstein of McDonnell & Associates in King of Prussia, plus John J. Snyder, Mary Ann Capriotti 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