ALLENTOWN – A federal judge has rejected a company’s attempt to intervene in a lawsuit filed by a man tasked with cleaning a chocolate batching tank at its facility and who claimed he became trapped in the machinery for more than six hours.
Luis Torres Crespo and Tsutsumi Cuebas Torres of Lancaster first filed suit in the Lancaster County Court of Common Pleas on Jan. 13, 2023 versus Mars Wrigley Confectionery US, LLC, of Elizabethtown.
“On or about June 9, 2022, defendant Mars did employ certain employees, workmen, servants, agents who were on duty at defendant’s facility at all times relevant herein. On or about June 9, 2022, plaintiff’s employer I.K. Stoltzfus Service Corporation was retained by the defendant Mars to clean certain micron tanks at the defendant’s facility, specifically the Dove chocolate batching 20 micron tank. On or about the aforesaid date, plaintiff Luis Torres Crespo was an employee of I.K. Stoltzfus Service Corporation, and was instructed by employees, agents, servants, or workmen of defendant Mars to enter the Dove chocolate batching 20 micron tank to clean same,” the suit said.
“On or about June 9, 2022, while cleaning the Dove chocolate batching 20 micron tank, the composite that was remaining in said tank, at the time that the cleaning was commenced, hardened, trapping the plaintiff in said composite, and in said tank itself. Despite the plaintiff’s cries for help to extricate him from the composite which had hardened, the agents, servants, workmen and/or employees of the defendant Mars refused to extricate the plaintiff from the hardened substance by simply cutting a hole in the micron tank itself, leaving plaintiff trapped in the hardened substance for over six hours, until finally the local authorities were notified and arrived on the scene, at which time the local authorities cut a hole in the micron tank and extricated the plaintiff from the hardened substance. By the time the plaintiff was extricated from the hardened substance, the plaintiff was in and out of consciousness. As a result of the incident described above, the plaintiff sustained serious permanent personal injuries.”
The suit added that the “solidifying of the substance located in the tank in question was not caused whatsoever due to any act or failure to act on the part of the plaintiff.”
“As a direct and proximate result of the defendant’s actions, plaintiff suffered grave and traumatic injuries, including injuries to his left knee, left kidney, entire left leg from below the knee, head, the full extent of which is not yet known, and including, but not limited to: Rhabdomyolysis, acute kidney injury, right ankle sprain, right knee sprain, left knee sprain, right leg laceration, anxiety, post-traumatic stress disorder, depression, sleep disturbance, disruptions in functioning including increased feelings of dysphoria, avoidance behaviors at work, increased emotional distress, mode lability and panic, flashbacks, social withdrawal, nightmares, severe aches, pains and mental anguish, injury to his nerves and nervous systems, whereby he has in the past, and will continue in the future to suffer severe pain,” the suit stated.
On Feb. 27, 2023, the defendant removed the case to the U.S. District Court for the Eastern District of Pennsylvania in Allentown, citing the diversity of citizenship between the parties and the amount of damages at issue, and then followed up with a motion to dismiss the case on March 3, 2023.
“In the instant matter, plaintiffs have failed to set forth any factual allegations of actual conduct by moving defendant capable of supporting a punitive damages award. Specifically, while plaintiffs’ complaint includes a multitude of allegations in support of his claim that his damages were caused ‘solely by the negligence, recklessness and carelessness’ of moving defendant, these allegations all sound in negligence and are primarily based on a failure to act. Plaintiffs rely solely on these allegations throughout their complaint in an effort to support their claim for punitive damages. It is of utmost importance to note that none of the allegations set forth in plaintiffs’ complaint give rise to willful and wanton misconduct as is required by the well-established jurisprudence of the Commonwealth of Pennsylvania,” per the dismissal motion.
“Moreover, the allegations simply do not explain how moving defendant’s conduct was tantamount to an evil motive or reckless indifference to the right of others. It is evident that plaintiffs’ complaint falls woefully short of pleading evidence to meet the strict standard for punitive damages under Pennsylvania law. Accordingly, consistent with the significant body of case law regarding punitive damages, this Honorable Court should strike all allegations of recklessness as well as claims for punitive damages contained in plaintiffs’ complaint.”
A March 10, 2023 response to the dismissal motion saw the plaintiffs reject the defense’s conclusion that the claims were not properly pled.
U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher denied the attempt to dismiss the plaintiffs’ allegations of recklessness and claims for punitive damages, in a memorandum opinion handed down on May 17, 2023.
“Pursuant to the foregoing test articulated by the Supreme Court of Pennsylvania in Hutchinson v. Luddy, a defendant’s failure to act may give rise to an award of punitive damages where that failure to act is in conscious disregard’ of a risk of harm to the plaintiff of which the defendant was subjectively aware. Here, plaintiffs allege defendant and its employees had a subjective appreciation of the risk of harm to which plaintiff Torres Crespo was exposed: Defendant failed to ‘warn plaintiff that there had been prior entrapments in the tank in question’ previously, or that defendant failed to conduct periodic inspections of the tank or lock out all of the tank’s energy sources,” Gallagher said.
“Moreover, the complaint alleges defendant became aware Torres Crespo was ‘trapped in the hardened substance.’ Plaintiffs further allege that defendant failed to act, in conscious disregard of the risk of harm to plaintiff: ‘Despite the plaintiff’s cries for help…defendant Mars refused to extricate the plaintiff from the hardened substance by simply cutting a hole in the micron tank itself.’ Rather than “immediately extricating the plaintiff from the tank,” the complaint avers defendant left Torres Crespo ‘trapped in defendant’s tank for six hours before notifying local authorities.’ Plaintiffs allege Torres Crespo was ‘in and out of consciousness’ by the time he was extricated. Therefore, plaintiff pleads enough, at the motion to dismiss stage, to warrant discovery on plaintiffs’ allegations of recklessness and claims for punitive damages.”
UPDATE
On March 13, Allied Eastern Indemnity Co. motioned to intervene in the case and argued, “as a valid holder of a workers compensation lien, it has an interest in the underlying litigation brought by the employee-plaintiff and his consortium-deprived spouse, such that it must be permitted to join this action as a party.”
But after considering the relevant intervention factors outlined in Federal Rule of Civil Procedure 24(a), which are: 1) A timely application for leave to intervene; 2) A sufficient interest in the underlying litigation; 3) A threat that the interest will be impaired or affected by the disposition of the underlying action; and 4) That the existing parties to the action do not adequately represent the prospective intervenor’s interests – the Court pronounced that the movant met none of the criteria and denied the motion.
“Taking these factors in order, the Court first finds the motion to intervene is untimely. Timeliness is determined in the Court’s discretion based on all of the circumstances. It is undisputed here that movant identified its claimed interest no later than November 2023. Yet, it only filed its motion on March 13, 2024, approximately 13 months after the filing of the complaint, nine months into the discovery process, and just days before the scheduled close of discovery as set in the Court’s second amended scheduling order. Indeed, without the Court moving up the deadline to respond, the response to this motion to intervene would have fallen beyond the scheduled close of discovery. Moreover, allowing movant to intervene at this late stage would likely require repeating discovery steps already concluded during the months the parties have been working pursuant to the scheduling orders. Likewise, discovery would have to be expanded to incorporate movant’s declared interest in the damages, while necessarily introducing into the mix the prejudicial topic of potential outside sources for payment of damages. Of additional note is plaintiffs’ response, which does not address timeliness at length but argues the motion to intervene is premature. Plaintiffs are half-right. As will be discussed, movant is both too late and too early,” Gallagher said.
“As to the second factor, movant claims to have a sufficient interest to intervene in this action because of the subrogation lien for workers’ compensation benefits it paid to the employee-plaintiff. The Court agrees that movant has a rooting interest in the outcome of this case. That is, like plaintiffs, movant would like to see substantial damages awarded in this case so it can get paid. Here, this interest does not suffice. Movant’s interest in satisfaction of its lien from the proceeds of this case does not ripen until defendant’s liability for negligence is established. ‘Where, as here, the action is for damages in tort, a lienholder does not have an interest relating to the subject of the action. [Movant] has no interest in the merits of the action but only in the damages awarded to the plaintiff.’ The underlying suit simply concerns whether the defendant breached a duty of care to the employee-plaintiff and, relatedly, whether that breach denied consortium to the spouse-plaintiff. It does not concern whether the employee-plaintiff owes anything. That separate interest shall be considered shortly but – spoiler alert – it too fails to support movant’s motion to intervene at this time. As to the spouse-plaintiff, it is an even easier call. As movant acknowledges in its motion, it has no privity of interest with her consortium claim. The third factor also eludes movant because all hope is not lost if it is unable to intervene at this point. The stated concern is that the parties will enter a settlement agreement where a disproportionate dollar amount is allocated towards the loss of consortium claim and, as the argument goes, this would prevent movant from recovering its lien. However, this is not accurate. Movant may still recover its lien, even in the event of an inequitable settlement or judgment, by bringing a separate action against the parties, which puts the third factor out of movant’s reach.”
Finally, as to the fourth factor, Gallagher said that the movant “fails to satisfy the final factor, which requires it to establish that the parties do not adequately represent its interests in this case.”
“Movant here emphasizes its concern for potential abuse by the parties in fashioning an ‘inequitable settlement allocation’ which favors spouse-plaintiff’s consortium claim, which is not subject to movant’s lien, over employee-plaintiff’s tort claims, which is. Said otherwise, movant is concerned the parties will collude to fashion a settlement that defrauds movant and its right to claim from employee-plaintiff because plaintiffs, collectively, ‘are incentivized to care about the total amount of money they, as a marital unit, walk away from this case with.’ In support, movant claims counsel for plaintiffs advised movant in email correspondence, ‘he would not protect [movant’s] lien from an inequitable allocation toward the loss of consortium claim,” Gallagher stated.
“However, not found among movant’s attachments to this motion is any documentation of this claim. On the other side, the Court has plaintiffs’ response where counsel represents that ‘it will protect [movant’s] worker’s compensation lien and right of recovery.’ Counsel also reiterates plaintiffs’ claim that this motion to intervene is premature, stating ‘no party has prevented [movant] from later participating in settlement negotiations if there are any.’ Indeed, ‘as a general rule, the compensation carrier participates in settlement negotiations in the underlying tort suit without attempting to formally intervene.”
For multiple counts of negligence, recklessness, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress and loss of consortium, the plaintiffs are seeking compensatory and punitive damages in excess of $50,000.
The plaintiffs are represented by Craig A. Falcone of Sacchetta & Falcone, in Media.
The defendant is represented by Christina Capobianco of Goldberg Segalla, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-00744
Lancaster County Court of Common Pleas case CI-23-00300
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com