United States District Court, W.D. Pennsylvania
TRAVIS MICJAN and STEPHANIE MICJAN, Co-administrators of the Estate of DYLAN MICJAN, a deceased minor and in their own right, Plaintiffs,
WAL-MART STORES, INC., GARAN, INC., and GARAN SERVICES CORP., Defendants.
MEMORANDUM AND ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Presently before the Court is a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants Garan, Inc. and Garan Services Corp., seeking to dismiss five of the eleven claims asserted against them (Counts X, XI, XII, XV and XVIII) on the grounds that they are not cognizable under Virginia law. For the reasons that follow, the motion will be granted with respect to Counts X, XI, XII and XVIII and denied with respect to Count XV.
Plaintiffs, Travis Micjan and Stefanie Micjan,  co-administrators of the estate of Dylan Micjan, a deceased minor and in their own right, bring this action alleging various state common law and statutory tort claims against Defendants, Garan, Inc., and its subsidiary, Garan Services Corp. (together, the Garan Defendants) and Wal-Mart Stores, Inc. (Wal-Mart), arising out of the tragic death of their 3-month old son, Dylan Micjan, on March 25, 2012. Dylan died of asphyxia, which Plaintiffs contend resulted from Dylan rolling face first into a defective and dangerous crib bumper pad designed, manufactured, marketed, distributed and sold by Defendants.
Dylan was born on December 14, 2011 and resided with his parents in Virginia. (Compl. ¶ 3.) On November 15, 2011, Plaintiffs purchased a "Garanimals" crib bumper pad set, which had been manufactured, marketed and distributed by the Garan Defendants, at a Wal-Mart location in the Commonwealth of Virginia. (Compl. ¶¶ 12, 33.) The intended use of crib bumper pads is to wrap around the bottom perimeter of a crib, purportedly to prevent babies from becoming trapped between the slats of a crib and for cushioning the sides of the crib. (Compl. ¶ 14.)
Plaintiffs allege that the crib bumper pad did not contain any warnings against suffocation, even though Defendants knew or should have known that crib bumper pads have been found to cause more injuries and deaths in infants than they prevent, based on available data from the United States Consumer Product Safety Commission (CPSC) and an October 18, 2011 report on the website of the American Academy of Pediatrics that bumper pads should not be used in cribs. (Compl. ¶¶ 15-16, 18, 34.) Plaintiffs also note that the American Academy of Pediatrics warned against the use of crib bumper pads in its official journal "Pediatrics, " based on two peer-reviewed articles, one published in the Journal of Pediatrics and the other published previously in "Pediatrics." (Compl. ¶¶ 19-20.) Health Canada, the CPSC, First Candle/National SIDS Alliance and the National Institute of Child Health & Human Development have also condemned crib bumper pad use, and the state of Maryland banned the sale of such items effective June 21, 2013. (Compl. ¶¶ 21-22.)
Plaintiffs installed the crib bumper pad set in Dylan's crib as directed by the instructions, which was the intended use of the product as manufactured. They provided Dylan with a firm crib mattress, covered by a fitted sheet as recommended and provided by Defendants. The only warnings on the product were to position the ties outside the crib, remove the bumper when the child can sit up unaided and use a securely fitting crib sheet. (Compl. ¶¶ 35-37.) On the evening of March 24, 2012, Plaintiffs put Dylan to bed in his crib, at their home in Virginia which had the subject crib bumper pad set and a firm mattress with a tight-fitting crib sheet that was also included in the set. Dylan was behaving normally when he was put to bed and was considered by his parents to be a good sleeper with a steady sleep cycle. The door to the room was always left open. Between 4:00 and 5:00 a.m. on the morning of March 25, Stefanie Micjan fed Dylan, who was still behaving normally. (Compl. ¶¶ 39-41.)
At or about 11:30 a.m. on March 25, 2012, Travis Micjan checked on Dylan and found him to be unresponsive in his crib with his face pressed up against the subject crib bumper pad. Dylan was pronounced dead at the scene. Wendy M. Gunther, M.D., Medical Examiner for the Commonwealth of Virginia, performed an autopsy and determined that the cause of death was asphyxia due to Dylan's face rolling into the crib bumper pad. (Compl. ¶¶ 42-43.)
Plaintiff filed this action in the Court of Common Pleas of Allegheny County on May 30, 2014. The first nine claims are alleged on behalf of Dylan against Wal-Mart and then mirrored by claims ten through eighteen asserted against the Garan Defendants, as follows: strict liability for failure to warn (Counts I, X), strict liability for defective design (Counts II, XI), strict liability for a manufacturing defect (Counts III, XII), negligence (Counts IV, XIII), breach of express warranty (Counts V, XIV), breach of implied warranty (Counts VI, XV), fraud by concealment (Counts VII, XVI), negligent misrepresentation (Counts VIII, XVII), and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 to 201-9.3 (UTPCPL) (Counts IX, XVIII). Count XIX alleges that all Defendants violated the Virginia Consumer Protection Act, VA Code Ann. §§ 59.1-196 to 59.1-207. The final two counts assert wrongful death claims in Plaintiffs' own right against Wal-Mart (Count XX) and the Garan Defendants (Count XXI).
On June 30, 2014, Wal-Mart, with the consent of the Garan Defendants, removed the action to this Court on the basis of diversity jurisdiction in that: Plaintiffs are Pennsylvania citizens; Garan, Inc. is a Virginia corporation with its principal place of business in New York, New York; Garan Services Corp. is a Delaware corporation with its principal place of business in New York, New York; Wal-Mart is a Delaware corporation with its principal place of business in Bentonville, Arkansas; and the amount in controversy, although not specifically alleged, very likely exceeds the sum of $75, 000.00, exclusive of interest and costs, because it arises out of the death of an infant. 28 U.S.C. § 1332. (Notice of Removal ¶¶ 3-5, 9-13, 15 & Exs. F, G.)
On July 21, 2014, the Garan Defendants filed a partial motion to dismiss (ECF No. 8). Plaintiffs filed a brief in opposition on August 11, 2014 (ECF No. 16) and the Garan Defendants filed a reply brief on August 21, 2014 (ECF No. 20).
Standard of Review
The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only fair notice' but also the grounds' on which the claim rests." Phillips v. County of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;" "labels and conclusions;" and "naked assertion[s]' devoid of further factual enhancement.'" Iqbal , 556 U.S. at 678 (citations omitted). Mere "possibilities" of misconduct are insufficient. Id. at 679. The Court of Appeals recently summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id . This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.
Malleus v. George , 641 F.3d 560, 563 (3d Cir. 2011).
The Garan Defendants argue that: 1) applying Pennsylvania choice of law principals, the laws of Virginia should be applied to this case; 2) Virginia law does not recognize strict liability claims and thus Counts X, XI and XII should be dismissed; 3) Plaintiffs allege that the Garan Defendants were merchants within the meaning of Article 2 of the Pennsylvania Uniform Commercial Code (U.C.C.), but since Virginia law applies, such designation is irrelevant and thus the breach of implied warranty claim in Count XV ...