Madison County Circuit Judge Dennis Ruth on Wednesday granted Plaintiff Ronald Ball's withdrawal of a motion for default judgment against defendant Pepsico, Inc. and Pepsi Cola General Bottlers in a personal injury suit.
Pepsico, Inc., in its answer to the plaintiff's second amended complaint, admitted the plaintiff made a telephone call Nov. 10, 2008, and a representative spoke to the plaintiff who allegedly found a dead mouse in a can of Mountain Dew.
The company denied the remainder of the complaint.
The answer to the plaintiff's second amended complaint was filed April 3.
Ball's attorney, Samantha Unsell, on March 30 requested the court to withdraw the plaintiff's previously filed motion for default judgment.
She filed the motion for default judgment on March 23, saying Pepsico failed to timely answer the plaintiff's second amended complaint.
Unsell wrote a letter to Nester dated March 22, explaining she would file a motion for default judgment if he didn't respond to her second amended complaint.
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 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.