Pepsico says plaintiff's motion for default judgment is 'inappropriate, inequitable and prejudicial'

Christina Stueve Apr. 2, 2012, 7:01am



Pepsico through its attorney Michael Nester on Thursday asked that Madison County Circuit Judge Dennis Ruth deny plaintiff Ronald Ball's motion for default judgment.

Samantha Unsell, Ball's attorney, filed the motion for default judgment on March 22, saying Pepsi Cola General Bottlers did not answer the plaintiff's second amended complaint filed last November.

Unsell wrote a letter to Nester dated March 22, explaining that she would file a motion for default judgment if he didn't respond to her second amended complaint.

"As you recall, I gave you an unlimited extension to allow you time to review the file," Unsell wrote. "However, it has been almost two months. I would like to move forward."

In response, the company's attorneys stated they were hired to represent Pepsi on Jan. 18, and they received a "voluminous" file from prior defense counsel, which "has taken a significant amount of time to review and analyze."

Nester wrote that the filing of a motion for default judgment and the court's consideration of it is "inappropriate, inequitable and prejudicial to defendants Pepsico, Inc. and Pepsi Cola General Bottlers, Inc."

The company is asking the judge to deny the plaintiff's motion for default judgment, and allow it to file a responsive pleading on or before April 16.

Nester of Donovan Rose Nester in Belleville replaced the law firm of Cassiday Schade as counsel for Pepsico Inc. on Jan. 18.

Ball allegedly bought a can of Mountain Dew from a vending machine at his workplace at Marathon Oil in Wood River on Nov. 10, 2008. He claims he opened the can, took a drink and immediately became so violently ill that he threw up.

The contents of the can of Mountain Dew were immediately poured into a Styrofoam cup, where a dead mouse was found, according to the lawsuit.

In its defense, Pepsico has said that the mouse body would have transformed into a jelly-like substance had it been in the soda for as long as Ball alleges it was.

He is seeking damages in excess of $75,000.

The case is Madison Case number 09-L-440.

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