CHARLESTON -- Wal-Mart defense attorneys have removed a Kanawha County Circuit Court personal injury lawsuit to federal court claiming that plaintiffs fraudulently joined an employee as a defendant to keep the case in state court.

Attorneys from McQueen & Murphy in Charleston argued in a joint notice and petition for removal that a complaint filed against Wal-Mart by Emily Triplett of Charleston fraudulently added the name of employee Chris Rockenstein.

In a lawsuit filed April 5, Triplett claims her infant daughter Kendra Marie Triplett sustained severe injuries from falling merchandise at a South Charleston Wal-Mart on April 9, 2004.

Triplett, represented by Marvin W. Masters of the Masters Law Firm in Charleston, claims her daughter has incurred $1,000 in medical expenses to date.

She is seeking punitive and compensatory damages, pre-judgment and post-judgment interest, plus costs.

"The joinder of Mr. Rockenstein was made without any purpose to prosecute the action in good faith against a resident defendant as evidenced by the four corners of the Complaint and for the purpose of fraudulently defeating the right of removal," the removal notice states.

In the petition, defense attorneys argue that Rockenstein's West Virginia residency "should not be considered for removal purposes, since he was 'fraudulently joined' by the plaintiff."

In the body of Triplett's complaint, there are no allegations of negligence directed toward Rockenstein – only defendant Wal-Mart.

"The plaintiff's Complaint fails to state any direct cause of action against Mr. Rockenstein, other than to name him individually as a defendant in the style," the removal notice states.

Triplett alleges Wal-Mart negligently displayed merchandise.

"That defendant Wal-Mart Stores Inc…negligently, carelessly, wrongfully and unlawfully allowed the merchandise located on its shelves to be maintained and/or displayed in a hazardous condition," the complaint states.

The two-count complaint also alleges the merchandise display was a "nuisance."

"That as a direct and proximate result of the defendant's creation and maintenance of the nuisance, the infant plaintiff, Kendra Marie Triplett, was injured," the complaint states.

The lawsuit does not specify Kendra Triplett's injuries. It states, "…her injuries are permanent and lasting in nature."

"She has and will in the future be caused to incur medical and medically-related expenses and will be caused to suffer and have great pain of body and mind, loss of enjoyment of life and other impairments and disabilities," the complaint states.

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