PITTSBURGH – An Alabama paper supply company is seeking to dismiss litigation which alleged the plaintiff suffered third-degree chemical burns when a drain cleaner product being sent through the mail leaked through its thin packaging and made contact with her body.
Stephanie V. Rimel of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Oct. 26, 2023 versus Alabama Janitorial & Paper Supply, LLC (doing business as “Aljan Paper Supply”) of Warrior, Ala., Amazing Products, Inc. of Louisville, Ky., First and Foremost Trading, LLC of Clearwater, Fla. and Walmart, Inc., of Bentonville, Ark.
The suit explained that prior to Sept. 9, 2023, a resident of Victoria, Va. made an online purchase of a 32 oz. bottle of Liquid Fire, a drain cleaner product, from defendant Walmart for $27.95, which included free shipping.
It was shipped by defendant Aljan Paper Supply, the suit said, who placed a 32 oz. bottle of the Liquid Fire product into a white plastic bag and then brought it to the United States Postal Service.
According to a Material Safety Data Sheet warning for Liquid Fire, “Contact with liquid, mist or vapor can cause immediate irritation or corrosive burns to all human tissue. Severity of burn is generally determined by the duration of exposure.”
“On Sept. 9, 2023 at approximately 11:15 p.m., plaintiff was working at her job as a mail handler for the United States Postal Service at its Warrendale Distribution Center located at 51 Pennwood Place, Suite 100, Warrendale, PA 15086-7831, which is in Allegheny County, Pennsylvania. On the date and time aforementioned, plaintiff was carefully and lawfully performing her job, which included separating parcels that needed special handling in order for the parcels to be photographed and have their bar code scanned and read,” the suit stated.
“At or around the date and time aforementioned, plaintiff gathered up several parcels that needed special handling, one of which was the bottle of product hereinbefore referenced that was ordered from Walmart for intended delivery on or before Sept. 25, 2023, to the purchaser in Victoria, Va. The bottle of product that plaintiff gathered for special handling was packaged in a thin white plastic bag.”
The suit continued that the “plaintiff was not able to read the warning label attached to the bottle of Liquid Fire because the bottle and label were within an opaque white plastic shipping bag, and the white plastic shipping bag did not have any warning that the parcel that plaintiff was handling contained hazardous material.”
“As plaintiff was going about her job duties as aforesaid, she felt an excruciating burn under her arm on the left side of her body. Plaintiff subsequently discovered that the burning she experienced was caused by Liquid Fire, which leaked from its bottle, through its white plastic packaging, and spilled onto the left side and other parts of her body causing the severe injuries and damages that are hereinafter set forth. Plaintiff was transported by ambulance to Western Pennsylvania Hospital, where she came under the care of the doctors and nurses in the burn unit of the hospital. The full extent of plaintiff’s injuries is not fully known at this time. However, they included full thickness, third-degree burns on her left forearm and upper and lower abdomen, as well as burns to her left breast, left leg and left foot. On Sept. 13, 2023, plaintiff returned and was admitted to Western Pennsylvania Hospital for emergent treatment which included, among other things, skin harvesting surgery, followed by skin grafting surgery to the burns on plaintiff’s left forearm and cadaver skin grafting surgery to the burns on plaintiff’s left side,” the suit said.
“On Sept. 18, 2023, plaintiff returned to West Penn Hospital per instructions to have her dressings changed. In the course of having her dressings changed, plaintiff suffered syncope due to the pain. On Sept. 19, 2023, plaintiff was returned to the operating room of West Penn Hospital for a debriding procedure where it was determined that the burns were more extensive, longer, and deeper than what the doctors originally believed and that the cadaver grafts had failed. Due to these findings, on Sept. 19, 2023, plaintiff was returned to the operating room for new skin grafting surgery. The conduct of the defendants as set forth in the following counts was outrageous, malicious, wanton, willful, and oppressive or shows reckless indifference to the interests of others such that punitive damages, as well as any compensatory damages, are required in order to punish the defendants for their conduct and to deter the defendants and others from committing similar acts.”
Walmart filed a notice of removal in the case on Nov. 28, 2023, finding that diversity of citizenship between the parties and the amount of damages at issue in the case likely exceeding $75,000, necessitated removal of the action to the U.S. District Court for the Western District of Pennsylvania.
“Defendant Walmart, Inc. (correctly titled Walmart Inc.) is a corporation formed in the state of Delaware, with a principal place of business in Bentonville, Ark. Accordingly, it is not a citizen of nor does it have a principal place of business in the Commonwealth of Pennsylvania. Defendant Alabama Janitorial & Paper Supply LLC (doing business as “Aljan Paper Supply”) is alleged to be a limited liability company formed in the state of Alabama, with a principal place of business in Alabama. Defendant Amazing Products Inc. is alleged to be a corporation formed in the state of Kentucky, with a principal place of business in Kentucky. 10. Defendant First and Foremost Trading, LLC is alleged to be a limited liability company formed in the state of Florida, with a principal place of business in Florida. Accordingly, none of the defendants in this matter are a citizen of, nor do they have a principal place of business in, the Commonwealth of Pennsylvania,” the removal notice stated.
“The complaint seeks an award in excess of the arbitration limits of Allegheny County ($50,000), but no specific sum is demanded in the complaint. Among other injuries, it is understood that plaintiff claims damages for great pain and suffering, inconvenience, embarrassment, mental anguish, loss of enjoyment of life, medical costs, emotional harm, and for alleged serious injuries including, but not limited to, chemical burns and scarring, which are alleged to possibly be of a permanent nature. Accordingly, based on these alleged injuries and damages, defendant believes that this matter exceeds the threshold amount of $75,000 necessary for diversity jurisdiction.”
Walmart followed up with a motion to dismiss the counts against it in their entirety on Dec. 1, for failure to state claims upon which relief could be granted and by not showing their connection to the plaintiff’s injuries.
“The facts averred in plaintiff’s complaint demonstrate that Walmart’s only alleged involvement with the sale, shipment and delivery of the product was that an unidentified third-party purchased the product from either Aljan, or FFT, as a third-party seller on Walmart.com. In Pennsylvania, claims for products liability are governed by Section 402A of the Restatement (Second) of Torts. A person injured while the product was being delivered in the mail is not an ultimate user or consumer of the product, and thus is ineligible to bring a claim for strict product liability. Here, because plaintiff avers that she was a postal worker injured during the shipping process, she is not within the category of users or consumers of the product eligible to bring a claim sounding in strict product liability, and Count I of plaintiff’s complaint should be dismissed with prejudice,” the dismissal motion stated.
“A related argument for why plaintiff’s strict liability claims must be dismissed is that she was also not an intended user of this product. Pennsylvania courts applying Section 402(A) require proof of each of the following elements: (1) A product; (2) A sale of that product; (3) A user or consumer; (4) A defective condition, unreasonably dangerous; and (5) Causation – that the product caused physical harm to the ultimate user or consumer, or to his property. Thus, according to its terms and Pennsylvania law, Section 402A applies only to users or consumers of a given product. Here, the mere fact that plaintiff was injured by a leaking container does not make her an intended user or consumer of the product. Thus, Count I of plaintiff’s complaint should be dismissed with prejudice.”
The dismissal motion further contended that Walmart did not sell the product in question nor was it in Walmart’s possession, and that the plaintiff did not plead their remaining claims with evidence tying Walmart to their injuries, and that punitive damages are not applicable.
Additionally, the plaintiff motioned for a default judgment against defendant First and Foremost Trading, LLC – a request the Court granted on Dec. 7.
In a Dec. 14, 2023 brief, the plaintiff maintained that sufficient claims were pled against Walmart and their motion to dismiss should be denied.
“In support of its motion to dismiss Count I of the complaint, Walmart unfairly and inaccurately claims in its brief that, ‘The facts averred in plaintiff’s complaint demonstrate that Walmart’s only alleged involvement with the sale, shipment and delivery of the product was that an unidentified third-party purchased the product from either ALJAN, or FFT, as a third-party seller on Walmart.com.’ Walmart’s assertion is simply not true. The complaint alleges that the purchaser made an on-line purchase of a product called Liquid Fire from Walmart, Inc. The complaint affirmatively states that Walmart was the seller, distributor and/or retailer of Liquid Fire,” per the plaintiff’s brief.
“The averment in the Complaint regarding ALJAN and FFT is that ‘Walmart hired, retained and/or contracted with defendants First and Foremost Trading (FFT) and Alabama Janitorial and Paper Supply, LLC (ALJAN) to sell, ship, and/or deliver Liquid Fire to Walmart customers who ordered the Product from Walmart’s on-line advertising.’ To the extent that Walmart intends to defend this case with a claim that ‘Walmart’s only alleged involvement with the sale, shipment and delivery of the product was that an unidentified third-party purchased the product from either ALJAN, or FFT, as a third-party seller on Walmart.com’, that allegation is appropriate in an answer to the complaint or by asserting the claim as an affirmative defense. It is not appropriate to re-frame or mischaracterize the averments in the complaint, as Walmart has done here, to support a motion to dismiss.”
UPDATE
Alabama Janitorial & Paper Supply, LLC also filed a motion to dismiss the case on March 27.
“Although plaintiff is seeking to hold ALJAN strictly liable under Pennsylvania law, plaintiff is not the ‘ultimate user’ or ‘consumer’ of the product. It is well settled that Pennsylvania product liability law is governed by Section 402A of the Restatement (Second) of Torts as adopted by the Supreme Court of Pennsylvania in Webb v. Zern. Under Section 402A of the Second Restatement: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold,” the dismissal motion read, in part.
“The language is clear in 402A that only the ultimate user or consumer may bring a claim for strict products liability in Pennsylvania. The plaintiff, according to their own allegations in their complaint, was not the ultimate user or consumer. Plaintiff was only involved in the handling of the product during the shipping process which does not qualify her as the ultimate user or consumer. In this case, the plaintiff was only involved with the handling of the product during the process of shipping the product to the purchaser. Plaintiff admits in her complaint that she was acting within the course and scope of her employment when she was allegedly injured. Like in D’Antonio v. FMC Techs., Inc., plaintiff is not within the class of persons covered under 402A. Count I of plaintiff’s complaint should therefore be dismissed as it pertains to ALJAN.”
The motion also argued that the complaint’s counts for an inherently dangerous substance, violation of HCS governmental regulations, violation of U.S. Postal Service governmental statutes and fraud, should also be dismissed.
“Neither Pennsylvania law nor federal law recognizes an independent claim for an inherently dangerous product. This ‘claim’ is part of a strict products liability claim, which we have already shown is not applicable in this matter as the plaintiff is not the ultimate user or consumer. Plaintiff admits in their response to WMT’s motion to dismiss that Count III is just another negligence count. As plaintiff readily admits that this is a duplicative count, the Court should dismiss Count III of plaintiff’s complaint. Plaintiff brings a claim for ‘Violation of HCS Governmental Regulation.’ In Count IV of their complaint, plaintiff alleges that ALJAN violated OSHA Regulation 1910.1200(g). Although OSHA violations may be used as evidence of negligence, the violations themselves cannot serve as an independent claim upon which a private action can be brought. Count IV of plaintiff’s complaint should therefore be dismissed,” the dismissal motion continued.
“Plaintiff asserts a claim for ‘Violation of Postal Service Governmental Statute’ in Count IV of her complaint. Specifically, plaintiff alleges that ALJAN violated 18 U.S.C. Section 1716 and USPS Interim Final Rule 39 CFR Part 111. Plaintiff cannot assert a private cause of action for a violation of either of these statutes or regulations. Plaintiff has not asserted any authority to suggest otherwise. 18 U.S.C. Section 1716 is a criminal statute and unless the statute expressly states otherwise, a private right of action does not exist to enforce the provisions of the criminal statute. Likewise, there exists no private cause of action for an alleged violation of the Postal Reorganization Act. As a result, Count V of the complaint should be dismissed. Plaintiff alleges ALJAN ‘knowingly and willfully made a material factual misrepresentation that the package did not contain hazardous material to an employee of the USPS in order to have the package placed in the USPS mail.’ Plaintiff has not identified what individuals made these claims and to whom these claims were made. Furthermore, plaintiff has already stated that the return address on the package was identified as FFT and not ALJAN. As plaintiff has not pled sufficient facts upon which to support the claims in Count VI of her complaint, Count VI should be dismissed.”
The dismissal motion also sought to strike the claim for punitive damages against ALJAN.
For counts of negligence, strict liability, inherently dangerous substance, violation of HCS governmental regulations, violation of U.S. Postal Service governmental statutes and fraud, the plaintiff is seeking damages in excess of the jurisdiction of the Board of Arbitrators of this Court and in excess of $50,000, and punitive damages in an amount sufficient to punish and deter defendants from similar conduct in the future.
The plaintiff is represented by Michael J. D’Amico and Anthony J. D’Amico of D’Amico Law Offices, in Pittsburgh.
The defendants are represented by John P. Shea of Kent & McBride in Philadelphia, plus Russell J. Ober Jr. and Justin D. Beck of Meyer Unkovic & Scott, and Rebecca Sember Izsak and G. Richard Murphy of Thomas Thomas & Hafer, all in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-02020
Allegheny County Court of Common Pleas case GD-23-012468
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com