PITTSBURGH – Plaintiff counsel has authorized the dismissal of two counts of negligent infliction of emotional distress from a Blairsville couple’s lawsuit, one which claimed a Flying Fairy toy was defectively designed and when launched, collided with one of the plaintiff’s eyes and caused extensive ocular injuries.
Robyn Shaw and Robert Shaw III (w/h and as parents and natural guardians of A.S. and T.S., minors) of Blairsville first filed suit in the U.S. District Court for the Western District of Pennsylvania on Oct. 20, 2021 versus Magic Time International, LTD. of Kowloon Bay, Hong Kong, China and Wal-Mart Stores, Inc. (c/o CT Corporation System) of Los Angeles, Calif.
“In the fall of 2019, Dora Alsippi, mother of plaintiff Robyn Shaw, purchased a ‘Flying Fairy’ toy from a Wal-Mart store located at in Latrobe, Pennsylvania. The subject toy’s component parts include a plastic flower base or ‘launcher,’ a plastic launch cord, and a plastic fairy,” the suit said.
“A toy user may launch the plastic fairy into the air by placing the fairy’s post into the coupler located on the launcher, then pulling the launch cord. As the user pulls the launch cord, the fairy begins to turn and its wings expand until it releases into the air. The fairy may launch as high as nine feet into the air before it descends.”
The Shaws added that recall notices and safety notifications were issued for other, similar toys in 1997, 1998, and 2000, which included a foreseeable risk of eye injury.
“On Oct. 24, 2019, Mrs. Shaw and her two minor children opened the subject toy and began to play with it outside in their neighbor’s yard. Upon opening the subject toy’s box, there were no obvious defects observed in the box or the toy’s component parts. Prior to Oct. 24, 2019, Mrs. Shaw had never opened the subject toy’s box or attempted to use it,” per the suit.
“After reading the subject toy’s directions, opening the box, and removing it for use, Mrs. Shaw successfully launched the fairy into the air two times in an open area by standing back, holding the subject toy’s launcher upright, at arm’s length, and away from her face, turning the fairy’s head forward, and pulling the launch cord in a smooth continuous motion per the toy’s instructions. Mrs. Shaw did not aim the fairy at her eyes or face, any other individual, animal and/or object.”
At that time, when Mrs. Shaw attempted to launch the fairy into the air for the third time in the same manner, instead of flying upward, the toy flew directly into Mrs. Shaw’s right eye. Upon impact, Mrs. Shaw experienced extreme pain and could not open her eye, before being brought to the emergency room at Indiana Regional Medical Center, the suit said.
“Examination of Mrs. Shaw’s right eye revealed excessive tearing, an irregular pupil, an injected sclera, and a subconjunctival hemorrhage on the right side of the eye. Mrs. Shaw was diagnosed with traumatic iritis of the ribs with a concern for possible Seidel sign and was referred to the University of Pittsburgh Medical Center for further treatment. On Oct. 24, 2019, Mrs. Shaw presented to UPMC Emergency Department, where she underwent additional work up for traumatic iritis and was referred to a trauma ophthalmologist,” the suit said.
“On Oct. 29, 2019, Mrs. Shaw presented to Evan Waxman, M.D., Ph.D. for further care. Upon presentation to Dr. Waxman, Mrs. Shaw complained of ‘little improvement in vision,’ ‘pain and headaches’ and ‘seeing stars’ when she stood up. Upon examination, Mrs. Shaw’s visual acuity was recorded as 20/800 in her right eye. Dr. Waxman diagnosed Mrs. Shaw with traumatic iritis and a traumatic corneal abrasion of the right eye and prescribed medication and an eye patch. Since being diagnosed with traumatic iritis and a traumatic corneal abrasion of the right eye, Mrs. Shaw has continued to experience, pain, headaches, floaters, a dilated pupil of the right eye, decreased visual acuity of the right eye, and a cataract of the right eye.”
The suit warned that the defendants failed to design the toy safely.
On Jan. 20, 2022, Walmart filed an answer in the case, which stated that it was “without knowledge or information sufficient to form a belief as to the factual averments contained in [the plaintiff’s complaint]” and thus, denied them in their entirety.
Furthermore, it provided a slew of affirmative defenses against the allegations.
“Wal-Mart Stores, Inc. did not design or manufacture the subject product referenced in plaintiffs’ complaint. Plaintiffs may have failed to join necessary and indispensable parties to this action. Plaintiffs’ claims may be limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act and Walmart avers that the plaintiffs’ own negligence may be a bar to and/or in diminution of any claim against Walmart to the extent of said negligence or culpable conduct,” the defenses stated, in part.
“Walmart sets forth any and all applicable statutes of limitations as a bar to any claim against it. Plaintiff AS and TS cannot recover punitive damages for the alleged intentional infliction of emotional distress. Plaintiff-husband cannot recover punitive damages for the alleged loss of consortium. Walmart denies that its conduct was in any fashion a proximate cause of the injuries and/or damages asserted by the plaintiffs as set forth in the complaint. Plaintiffs’ alleged injuries and damages, as alleged in the complaint, were caused, in whole or in part, by the superseding intervention of causes outside of the control of Walmart.”
Walmart additionally argued that any injuries are the responsibility of entities not named in the complaint and that the plaintiffs may have failed to mitigate their injuries and/or damages.
In a Jan. 28, 2022 reply to the affirmative defenses contained in Walmart’s answer and new matter, the plaintiffs denied them in their entirety.
“These paragraph contains conclusions of law to which no response is required. To the extent the averments are factual, they are specifically denied,” per the reply brief.
On Dec. 19, 2022, U.S. District Court for the Western District of Pennsylvania Judge Marilyn J. Horan ordered that Magic Time International, LTD. may be dismissed from the case, if just cause cannot be shown to explain why the company hasn’t been served during the 14 month-long pendency of the case.
“On or before Dec. 30, 2022, plaintiffs shall file a status report relative to the service of defendant Magic Time International, LTD. In said report, plaintiffs shall show cause as to the reason(s) for the delay and cite to any relevant authority which would justify such a delay. Upon receipt and review of said report, the Court reserves the right to dismiss defendant, Magic Time International, LTD.,” Horan said.
UPDATE
After an amended complaint was filed on Jan. 9, 2023 and subsequent answers were filed by Walmart and Magic Time International, LTD., plaintiff counsel filed notice with the Court on Feb. 19 that two counts of negligent infliction of emotional distress upon the minor-plaintiffs, which had been listed in the amended complaint, were officially dismissed.
“Plaintiffs, Robyn Shaw and Robert Shaw III, hereby give notice that pursuant to Federal Rule of Civil Procedure 41(a)(1)(i), the following claims for relief in plaintiffs’ complaint are dismissed: Count X – Negligent Infliction of Emotional Distress (minor-plaintiff AS) and Count XI – Negligent Infliction of Emotional Distress (minor-plaintiff TS),” the dismissal notice stated.
For counts of strict liability (design defect), strict liability (manufacturing defect), strict liability (failure to warn), negligence, misrepresentation, breach of express warranty, breach of implied warranty, malfunction and loss of consortium, the plaintiffs are seeking, jointly and severally, for compensatory and punitive damages, in excess of $75,000, exclusive of interest and costs.
The plaintiffs are represented by Kila B. Baldwin, Miriam Benton Barish and Jillian Sage Casarella of Anapol Weiss, in Philadelphia.
The defendants are represented by Christopher G. Mavros of Zarwin Baum DeVito Kaplan Schaer & Toddy in Philadelphia, plus Eric Christopher Wells and Travis Holmes of Gordon Rees Scully Mansukhani, in New York, N.Y.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-01436
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com