PITTSBURGH – A Pittsburgh woman who alleged that her special needs daughter was disfigured on the back of her head by an elastic headband she had purchased for use at a local Dollar Tree store recently settled her claims for $210,000.
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, 2022 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 explained 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 Feb. 17, 2022, 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, 2022, 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.”
After an unsuccessful session of mediation, defendant Greenbrier International, Inc. filed a motion for summary judgment on Sept. 8, 2022. However, U.S. Magistrate Judge Lisa Pupo Lenihan denied the motion without prejudice on Sept. 13, 2022.
In an amended answer filed on Oct. 5, 2022, Greenbrier International renewed its denial of liability and redirected that same liability towards Antoinette Chambers.
“If the allegations of plaintiff's complaint are proven to be true, which allegations are expressly denied, Antoinette Chambers (who was at all relevant times the mother and guardian, natural and court-ordered, of incapacitated plaintiff Chelsea Chambers) is alone liable to Chelsea Chambers for Chelsea Chambers’ alleged injuries and damages, because of Antoinette Chambers’ carelessness and negligence ways including, but not limited to: (a) Failing to properly supervise and monitor Chelsea Chambers; (b) Allowing Chelsea Chambers to be left unattended; and (c) Failing to keep the subject headband out of Chelsea Chambers’ reach,” the answer said.
“As a direct and proximate result of the carelessness and negligence of Antoinette Chambers, Chelsea Chambers sustained the injuries and damages alleged in the complaint. Based on the allegations set forth above, GBI avers that Antoinette Chambers alone is liable for the alleged injuries of her disabled daughter, Chelsea Chambers.”
In an Oct. 11, 2022 response, Antoinette Chambers countered Greenbrier International’s pointing of liability at her.
“Third-party defendant denies that she is the natural mother of plaintiff and further denies that she owed any duty of care to plaintiff relating to proper use and safety of the headband. To the contrary, defendant was obligated to make the product safe for consumers,” the response stated.
UPDATE
Nearly one year later, on Sept. 13, plaintiff counsel filed a motion for settlement on behalf of an incapacitated person.
“Prior to trial, plaintiff’s counsel and defendant Dollar Tree engaged in lengthy and detailed settlement discussions, including several mediations. The final offer on behalf of defendant Dollar Tree was $210,000. Plaintiff’s counsel believes this offer of settlement is fair and equitable considering the facts and circumstances of the case and has recommended that Ms. Chambers accept it on Chelsea’s behalf,” the motion stated, in part.
“Plaintiff signed a power of attorney agreeing to pay Rosen & Perry, P.C., a one-third contingent fee along with reimbursement of all costs advanced to pursue litigation. Plaintiff’s counsel has agreed to reduce the attorneys’ fee to twelve percent (12%) or $25,000, in order to benefit plaintiff. During the course of the litigation, plaintiff’s counsel advanced litigation and trial expenses in the amount of $12,621.29. These expenses were reasonable and necessary to effectuate advancement of the claim.”
The motion added that the Department of Human Services has asserted a lien in this matter in the amount of $9,955.92, and that if the Court deemed the proposed settlement acceptable, plaintiff’s counsel would request a reduction of the Department’s lien and would ultimately pay the lien in full.
“Pursuant to the foregoing, it is proposed that attorneys’ fees in the amount of $25,000 be paid to Rosen & Perry, P.C. On behalf of Chelsea, Ms. Chambers agrees and believes that these fees are reasonable and equitable. It is also proposed that plaintiff’s attorneys be reimbursed costs of $12,621.29. An itemization of these costs has been provided to Ms. Chambers, who has reviewed the itemization and who agree that these costs were reasonable and necessary for the proper handling of this case. Plaintiff proposes that the settlement funds be used to purchase a residence that Chelsea will co-own with Ms. Chambers. In the future, Ms. Chambers agrees to be responsible for all management, upkeep, maintenance, taxes, and insurance for the property,” the motion continued.
“Ms. Chambers, as legal guardian of plaintiff, Chelsea Chambers, hereby declares that the averments of this petition have been completely read and are fully understood by her and, subject to this Court’s approval, are accepted by her on behalf of Chelsea Chambers, for the purpose of making a compromise agreement and settlement of any and all claims arising from this incident.”
Two days later, on Sept. 15, Lenihan granted the motion.
“Upon consideration of the foregoing plaintiff’s petition for leave to settle a claim on behalf of an incapacitated person, it is hereby ordered, adjudged and decreed that the petition is granted. Plaintiff may settle this case for $210,000. The attorney’s fee of $25,000 payable to Rosen & Perry, P.C. is found to be reasonable in light of the circumstances of this case. Additionally, Rosen & Perry, P.C. shall be reimbursed litigation expenses in the amount of $12,621.29,” Lenihan ordered.
“Plaintiff may satisfy the lien asserted by the Pennsylvania Department of Human Services in the amount of $9,955.52 (or reduced amount) out of the settlement funds. The net proceeds of the settlement shall be used to purchase a residence that Chelsea Chambers will co-own with Antoinette Chambers. In the future, Antoinette Chambers shall be responsible for all management, upkeep, maintenance, taxes and insurance for the property.”
The plaintiff was represented by Jon R. Perry of Rosen Louik & Perry, in Pittsburgh.
The defendant was represented by John Kazmierczak and Terry A. Schrock of Maron Marvel Bradley Anderson & Tardy, 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