CHARLESTON - A Wayne County man has filed a suit against Pepsi-Cola and Wal-Mart after finding parts of a latex glove in his soft drink.

Warren Fluty filed the suit Oct. 9 in Kanawha Circuit Court, claiming he suffered damages, including being made physically ill after drinking part of a Diet Dr Pepper.

According to the suit, Fluty purchased a six-pack of 24-ounce Diet Dr Pepper from a Kanawha County Wal-Mart. Diet Dr Pepper is produced, bottled, inspected and sold by Pepsi-Cola.

On July 4, 2007, Fluty and his wife, Ethel, were sharing one of the sodas. While drinking, Warren Fluty discovered a foreign substance in the beverage.

"Mr. Fluty spat the substance out of his mouth and into a nearby glass," the suit says. "The substance appeared to the naked eye to be latex, and further appeared to be the tip of a finger off a latex glove."

A second piece of the glove, which appeared to be another tip of a glove, was found in the same beverage, the suit says.

The Flutys, allegedly sickened by the discoveries, went to their family doctor immediately and continuously for blood work, the suit says. So far, no infectious disease has been found.

Warren Fluty claims he contacted Pepsi, via a customer relations agency, and complied with requests to send the product back in packaging provided by Pepsi.

According to the suit, the Flutys requested the product be tested for harmful substances, and have received no information to date, but have been told the substance was some type of mold.

"The Plaintiffs do not believe the substance was mold and are still waiting for any conclusive result of any testing or investigation," the suit says.

The Flutys claim they went to Wal-Mart on July 6, 2007, and asked the store manager to pull the Diet Dr Pepper from the shelves, which the manager agreed to do, but did not follow through with the agreement.

According to the suit, Wal-Mart negligently and carelessly inspected, maintained and sold the beverage, which the Flutys claims was dangerous and unsafe for its intended uses.

Warren and Ethel Fluty claim they have remained physically ill, from both the notion of ingesting a foreign substance and from not knowing the full extent of potential damage caused by this substance.

According to the suit, they have incurred various medical bills and have been unable to enjoy bottled soft drinks since that time.

Warren and Ethel Fluty seek general and special damages.

Attorney James B. Atkins is representing the Flutys. The case has been assigned to Judge Paul Zakaib.

Kanawha Circuit Court case number: 08-C-1984

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