Micjan v. Wal-Mart Stores, Inc.

• Decision Date: 13 December 2016
• Docket Number: Civil Action No. 14-855
• Parties: TRAVIS MICJAN and STEPHANIE MICJAN, Co-administrators of the Estate of DYLAN MICJAN, a deceased minor and in their own right, Plaintiffs, v. WAL-MART STORES, INC., GARAN, INC., and GARAN SERVICES CORP., Defendants, v. TRIBORO QUILT MANUFACTURING CORP., Third-Party Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

TRAVIS MICJAN and STEPHANIE MICJAN, Co-administrators of the Estate

of DYLAN MICJAN, a deceased minor and in their own right, Plaintiffs, v. WAL-MART STORES, INC., GARAN, INC., and GARAN SERVICES CORP., Defendants, v. TRIBORO QUILT MANUFACTURING CORP., Third-Party Defendant.

Civil Action No. 14-855

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 13, 2016

Magistrate Judge Mitchell

MEMORANDUM OPINION AND ORDER

Presently before the Court is a motion for summary judgment, originally filed by Defendant Wal-Mart Stores, Inc. (Wal-Mart) and later joined in by Defendants, Garan, Inc., and its subsidiary, Garan Services Corp. (together, Garan) (ECF No. 128) and Third-Party Defendant Triboro Quilt Manufacturing Corp. (Triboro) (ECF No. 127). For the reasons that follow, the motion will be granted with respect to Counts V, VII, VIII, XVII and XIX, granted in part and denied in part with respect to Counts VI and XV, and denied with respect to Counts IV, XIII, XX, XXI, Plaintiffs' request for damages based on their deceased child's earning potential and Plaintiffs' request for punitive damages.

Plaintiffs, Travis Micjan and Stefanie Micjan,¹ co-administrators of the estate of Dylan Micjan, a deceased minor and in their own right, bring this action alleging various Virginia state common law and statutory tort claims against Wal-Mart and Garan, arising out of the tragicdeath of their 3-month old son, Dylan Micjan, on March 25, 2012. Dylan died of probable asphyxia, which Plaintiffs contend occurred when his face became wedged in a defective and dangerous crib bumper pad that was manufactured by Triboro, licensed by Garan and sold by Wal-Mart. Defendants impleaded Triboro as a Third-Party Defendant to this action, although Wal-Mart subsequently dismissed its Third-Party Complaint.

In the pending motion, Wal-Mart contends that Plaintiffs cannot maintain their remaining survival actions (for negligence, breach of express warranties, breach of implied warranties, fraud by concealment, negligent misrepresentation, and violations of the Virginia Consumer Protection Act) because Virginia law permits them to pursue only wrongful death claims; that they cannot recover on the wrongful death claim because of their own contributory negligence; that they cannot maintain any claims alleging fraud because Wal-Mart made no representations and they did not rely on any; that Wal-Mart made no express warranties; that Plaintiffs did not rely on any implied warranties; that the estimates of Dylan's earning potential are based on pure speculation; and that Plaintiffs point to no evidence to support a request for punitive damages. Plaintiffs respond that they have presented sufficient evidence to recover on their claims, that the estimates of Dylan's earning potential were calculated with reasonable certainty and that Wal-Mart's actions are sufficient to support a request for punitive damages.

Facts

Plaintiffs allege in their Complaint that Dylan "died of asphyxia after rolling [his] face into a crib bumper pad manufactured, distributed and sold by defendants." (Compl. ¶¶ 11, 43.)²Plaintiffs indicate that Stefanie Micjan purchased the crib bumper pad at Wal-Mart's store located in Franklin, Virginia in November 2011. (Compl. ¶ 33; Pls.' Resp. Wal-Mart Interrog. No. 3;³ S. Micjan Dep. 36:20-23, 37:1-2.⁴) The crib bumper pad was manufactured by Triboro, under the "Garanimals" trademark license given by Garan, and sold by Wal-Mart at a store located in Franklin, Virginia. Plaintiffs were residents of the Commonwealth of Virginia at the time of Dylan's death and he died in their home in Virginia. (Compl. ¶ 39.)

Plaintiffs state they did not purchase the crib bumper pad based on any advertisement from Wal-Mart or any other party. (Pls.' Resp. Wal-Mart Interrog. No. 4; S. Micjan Dep 40:21-41:8; T. Micjan Dep. 64:17-65:4.⁵) Plaintiffs state that Travis Micjan installed the crib bumper pad in Dylan's crib. (T. Micjan Dep. 68:2-4.) Wal-Mart states that any labels, warnings, brochures, manuals, and instructions would have been provided by Triboro, the manufacturer. (Bussell Dep. 132:3-133:7.)⁶

Dylan was three and a half months old at the time of his death on March 25, 2012 at his home in Suffolk, Virginia. (ECF No. 126 Ex. G.) Travis Micjan testified that he put Dylan to bed at around 3:00 a.m. to 4:00 a.m., and that prior to that time, he was lying with Dylan in the living room. (T. Micjan Dep. 128-29, 134-35.) He testified that he placed Dylan in the crib on his back, swaddled with an orange blanket under his armpits so his arms were outside the blanket, with an orange pillow mostly behind his back. (Id. at 129-32.)

Stefanie Micjan testified that she went into Dylan's room at approximately 5:00 a.m. after hearing him cry. (S. Micjan Dep. 76.) The baby monitor in Dylan's bedroom broke weeksprior to March 25, 2012 and was never fixed or replaced. (S. Micjan Dep. 112; T. Micjan Dep. 138-39.) She testified that she proceeded to change Dylan's diaper, swaddle him in a blanket and place him back in the crib in a supine position in the way her husband had done earlier. (S. Micjan Dep. 76, 79, 82, 85, 88.)

Travis and Stefanie Micjan testified that they woke up at 12:30 p.m. and noon, respectively, on March 25, 2012. (T. Micjan Dep.142; S. Micjan Dep. 90-91.)⁷ She testified that neither she nor her husband checked on Dylan from 5:00 a.m. until after 1:00 p.m. when Travis Micjan went into Dylan's room. (S. Micjan Dep. 137.) Travis Micjan testified that when he went into Dylan's room that he found Dylan unresponsive, lying on his side, with his face pressed up against the crib bumper pad. (T. Micjan Dep. 145, 159.)

The Suffolk County Police Department's Incident/Investigation Report indicates that Travis Micjan discovered Dylan not breathing when he went to check on him at 1:10 p.m. (ECF No. 126 Ex. D.) He testified that he picked up Dylan and carried him to the living room while at the same time attempting to resuscitate him and call 911. (T. Micjan Dep. 148-50.) The Suffolk Fire and Rescue Pre-Hospital Patient Care Report indicates that they were notified of this incident at 1:12 p.m. (ECF No. 126 Ex. N.) Dylan was pronounced dead at 1:26 p.m. (Id.)

Dylan's death was investigated by the Suffolk County Police Department and the autopsy was performed by Dr. Wendy Gunther, Assistant Chief Medical Examiner of the Virginia Department of Health. Following completion of the autopsy, Dr. Gunther reported that the cause of death was "probable asphyxia," with a pathological diagnosis of "sudden infant death, likely due to accidental suffocation in bumper pad." (ECF No. 126 Ex. E.) Dr. Gunther testified at her deposition that pathological diagnoses are noted on autopsy reports, but not on death certificates,and that the autopsy report consists of a "mixture of observations, history, and opinions." (Gunther Dep. 27.)⁸

Dr. Gunther testified that her pathological diagnosis of death, "likely due to suffocation in bumper pad," was based upon notes from the scene investigation. However, Dr. Gunther testified that she could not state within a reasonable degree of medical certainty that the bumper pads caused Dylan's suffocation. Specifically, Dr. Gunther testified:

I do not have the scientific evidential reason to state that the bumper pads made the linear mark [linear blanching on Dylan's face]. All I have is a scene investigation which states that there were bumper pads in the crib and a mattress and that the child's face was up against the bumper pads. The edge of something marked the face. I think it is more reasonable than not that the bumper pads at the edge were what marked the child's face, as the bumper pads have an edge, and I cannot see how the mattress edge could mark the child's face without the bars of the crib marking the child's head; however, I have no way of proving that this occurred. Reasonable degree of medical certainty is a phrase best kept for areas where research allows you to make that determination. I will not answer within that term.

(Gunther Dep. 65.) She further testified that there was no evidence of abuse of neglect, no alternative explanation for death found at autopsy or ancillary studies, and no drugs or alcohol were found in the child's blood. (Gunther Dep. 106.)

Werner U. Spitz, M.D., Plaintiffs' forensic pathology expert, testified that "death by asphyxia invariably associated with the utmost conscious pain and suffering. No different than death by fire." (Spitz Dep. 264-65.)⁹ According to Dr. Spitz, it would have taken Dylan three to five minutes to suffocate to death. (Id. at 260-61.)

In addition to the crib bumper pad, Dylan's crib, at the time of his death, contained the following: a mattress covered with a fitted sheet, a crocheted blanket, a fleece blanket, a stuffed toy animal, and a pillow. (ECF No. 126 Ex. H.) Dr. Gunther testified at her deposition that suchitems encompass "soft bedding" that can create an unsafe sleep situation. (Gunther Dep. 89-91.) She noted that "the biggest" concern for an unsafe sleep situation was the bumper pads. Of the other items, only the fitted sheet and fleece blanket were preserved as evidence. The crib and crib mattress were donated by Plaintiffs (S. Micjan Dep. 124); the stuffed toy animal was destroyed by Plaintiffs' family dog (S. Micjan Dep. 151); and the crocheted blanket and the pillow were lost during several family moves (S. Micjan Dep. 150-51; Pls.' Supp. Answers Garan Req. for Production of Documents.¹⁰) Dr. Gunter testified that: "I would much rather those were not in the crib because they can represent unsafe sleep situation. But they were found near his feet, then they're not relevant." (Gunther Dep. 90:22-25.)

A search performed by Suffolk County Police during their investigation revealed several empty liquor bottles and evidence of marijuana and drug paraphernalia in the Plaintiffs' home. (ECF No. 126 Ex. G at 2.) Stefanie Micjan testified that the marijuana...