Revisiting The Unreasonably Dangerous Undergarment

Generally, when a matter originating from South Carolina reaches a level of national discussion, we don’t find the news coverage to be entirely favorable. Much of that criticism is undeserved. We must confess, though, that our fair state is not immune to litigious ridiculousness. Indeed, suits brought by unreasonable Plaintiffs still percolate through our court system.

Today, dear readers, we revisit the case of the dangerously defective bra.

Take for example, the very recent Bennett v. Hanesbrands, Inc., No. 2-11-0613, 2011 WL 1459213 (D.S.C. Apr. 15, 2011). At the time of our initial post, the complaint was made in state court. However, the defendants removed the case, as defendants often do, and the plaintiff’s attorney filed a motion to remand, arguing that the purported permanent discoloration of his client’s skin was worth less than $75,000. Presumably, the Plaintiff sought to avoid federal court due to the mandatory scheduling order, expert deadlines, and other work that must go into the litigation of a case in federal court. Judge Norton, after analyzing the complaint, decided that the facts alleged in the complaint could in fact support diversity jurisdiction, because the Plaintiff capped the value of only one cause of action, rather than on all her causes of action alleged. Accordingly, he denied the Plaintiff’s motion for remand, and the case stay with the feds.

Judge Norton did not recite the facts set forth in the state court complaint, a copy of which is available on PACER as well as here [PDF]. However, our faithful readers will recognize that we previously blogged about this suit, prior to its removal, in which Ms. Bennett pleaded that “the defendants knew or should have known that the bra was an inherently dangerous product.”

Obviously, the counsel for the plaintiff knew or should have known that if a defendant spots a chance to remove a lawsuit, it likely will. Hanesbrand and Wal-mart did so in March, and it seems that recoverable damages on the face of the complaint were in excess of $75,000.

Judge Norton ended his opinion with an invitation to the plaintiff: “should plaintiff wish to voluntarily dismiss her case without prejudice, the court would be pleased to entertain such a motion.” We’ll see what happens. Perhaps the defendants will be happy to litigate in federal court and force the plaintiff to expend some resources on discovery and expert reports. I’m certain that permanent skin discoloration would support some significant expert work. Now that this is a federal case, it will be easier to track, but the lesson to be learned here, is, to make sure to plead that in no event are recoverable damages in the entire matter more than $75,000, lest you find yourself in federal court.