Plaintiff Ronald Ball is asking to withdraw a motion for default judgment against defendant Pepsico, Inc. and Pepsi Cola General Bottlers in a Madison County personal injury suit.
His attorney, Samantha Unsell, "prays the court to grant the motion and enter an order withdrawing the plaintiff's previously filed motion for default judgment."
Ball claims he found a dead mouse in a can of Mountain Dew.
Pepsico, through its attorney Michael Nester, on Thursday asked Circuit Judge Dennis Ruth to deny Ball's motion for default judgment.
Unsell filed the motion for default judgment on March 23, saying Pepsi Cola General Bottlers did not answer the plaintiff's second amended complaint filed in 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."
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.