EAST ST. LOUIS – Lawyers in a mass action over fiberglass in mattresses asked U.S. District Judge David Dugan to cancel a crucial hearing, stating they were engaged in good faith discussions to resolve their issues.
On Aug. 2, at their request, Dugan canceled an Aug. 5 hearing on motions to dismiss the action and strike its class allegations.
Christopher Cueto, Lloyd M. Cueto, and James Radcliffe, all of Belleville, represent 203 plaintiffs from 40 states suing Chinese mattress maker Zinus.
They sued Zinus for Amanda Chandler and Robert Durham of St. Clair County in March 2020, after local television reported that fibers injured their sons.
They named retailers Wal-Mart, Target, Amazon, Ebay, and Wayfair as defendants too, but dropped those claims by amending the complaint in June 2020.
The amendment added three plaintiffs, all from Illinois.
Zinus counsel Natalie Kussart of Sandberg Phoenix in St. Louis moved to dismiss the complaint last August.
She moved to strike class allegations, which would nip a class action in the bud.
At a hearing in January, Zinus counsel Robert Katerberg of Washington said that reviews on Amazon apparently inspired the suit.
He said the fact that someone could scour Amazon for negative reviews out of hundreds of thousands didn’t warrant a federal fraud class action.
“Anyone who has bought anything on Amazon knows that before you buy the product, when you’re browsing, you get to see what all the other customers have posted about the product,” Katerberg said.
“It doesn’t get any more open and notorious than that.”
He said Zinus mattresses comply with federal fire safety standards.
He said plaintiffs pleaded no theory that would give them a right to recover.
He said they needed to plead that they read or saw a communication that contained a misrepresentation or an omission.
He said it was never a secret that fiberglass was used in the mattresses.
He said a tag on the product said, “Do not remove cover,” right next to a tag that said 62 percent glass fibers.
He said plaintiffs didn’t cite a single case where personal injury or property damage claims were certified for class treatment.
Christopher Cueto said, “Mrs. Chandler after six months or so does what people and consumers do. She removed the cover to wash it.
“If you put a zipper on it, you’re inviting people to take it off.”
He said other plaintiffs didn’t remove the cover.
“You can plead alternative theories,” Cueto said. “You can even plead contradictory theories. We don’t think there’s any contradiction.”
Dugan told Cueto he had to definitively state what the defect was and Cueto said, “It’s a design defect in the sense that they put a zipper on it.”
On rebuttal, Katerberg said the Consumer Product Safety Commission encouraged manufacturers to use fiberglass in mattresses for its flame resistant properties.
Dugan dismissed four of eight counts in March, and granted leave to amend.
He ruled that Zinus could refile its motion to strike class allegations after plaintiffs amended the complaint.
Cueto, Cueto, and Radcliffe amended it in April, to add 198 plaintiffs from 40 states suing under consumer laws of 33 states.
Zinus counsel Zachary Merkle of Sandberg Phoenix moved to dismiss it in May.
Merkle wrote that plaintiffs made only modest revisions to claims Dugan dismissed in March, but they focused on enlisting scores of plaintiffs.
He claimed Dugan lacked jurisdiction over 182 plaintiffs from other states.
In a motion to strike allegations, he wrote that expansion of the plaintiff roster apparently stemmed from an organized campaign of plaintiffs’ counsel.
He claimed counsel “reached out to the small fraction of Zinus mattress reviewers who posted about a negative experience with glass fibers, from among 100,000 plus total reviews, most overwhelmingly positive.”
He claimed plaintiffs wrecked their own case for class treatment.
“Plaintiffs cannot show that it is extremely difficult or inconvenient to join all members of the nationwide personal injury and property damage classes because they have in fact joined over 200 individuals,” Merkle wrote.
“There is no better indication of what is practicable than what plaintiffs have actually accomplished.”
He found no reason to suspect that the recruiting effort hadn’t already picked up and signed up class members.
Radcliffe responded to the motion to strike in June, stating hundreds of individuals across the U.S. contacted him to share the same tragic story.
“They purchased a modestly priced mattress and glass fibers released from it which caused them to suffer personal injuries and property damage,” Radcliffe wrote.
He invited Dugan to take judicial notice of his website which asks, “Has your health been harmed by your Zinus mattress?”
“Hence, it is a reasonable inference that the complaints received were from buyers who alleged personal injury or property damage,” he wrote.
In response to the motion to dismiss, he wrote, “Plaintiffs trusted Zinus because they could not have discovered the truth through reasonable inquiry.
His responses showed Environmental Litigation Group of Birmingham, Alabama as plaintiff counsel, though the firm doesn’t appear on the docket.
On July 20, Dugan set a hearing on the motions to dismiss and strike for Aug. 5.
The parties moved to continue it on July 30, stating their discussions might obviate the need for the court to rule on the motions.
Dugan granted it and asked for a joint status report by Sept. 17.