WEST VIRGINIA RECORD

CHARLESTON – The Hershey Company and Walmart deny responsibility for a rusty nail found inside a Mounds bar given to a 2-year-old.

Both companies are named as defendants in a lawsuit Samuel Oyler filed on behalf of his minor son, Matthew Oyler, in Kanawha Circuit Court on Oct. 27.

In his complaint, Samuel Oyler claims he and his wife, Linda Oyler, purchased a Mounds Dark Chocolate candy bar from Walmart. The bar was manufactured by the Hershey Company.

"That on or about October 22, 2008 the plaintiff Matthew Oyler consumed a Hershey's Mounds snack candy when as a result of the defective nature of the product a foreign object, i.e. a rusty needle lodged in the snack candy became lodged in Matthew Oyler's mouth causing without limitations injuries to the plaintiff including a cut to his lip and infections," the suit states.

The Hershey Company negligently manufactured and assembled the Mounds bar in a defective condition and in such a way that it contained a rusty needle, according to the complaint. In addition, the company failed to warn its customers of the risks that may be associated with eating the candy, the complaint says.

The Oylers blame Walmart for selling the Mounds candy bar in a defective condition and for failing to warn of risks associated with consuming the bar.

Both Walmart and The Hershey Company deny the Oylers' allegations against them.

"The action described in the Complaint was a result of a cause or causes over which this Defendant had no control," Walmart's answer states. "Plaintiff's negligence and/or the negligence of some person or persons, firm or firms, other than this Defendant was primary in the happening of the incident described in Plaintiff's Complaint. The injuries, if any, resulting from the occurrence upon which this Complaint is based are the result of a pure accident and none of the parties were negligent; therefore, none of the parties can recover from this Defendant."

In his four-count complaint, Samuel Oyler seeks compensatory and general damages, plus costs, attorneys' fees and other relief the court deems just.

But Walmart and The Hershey Company say Samuel Oyler should receive no damages and contend the case against them should be dismissed.

"Defendant, The Hershey Company, asserts that the Mounds candy bar in question was reasonably safe for its intended use at the time of its manufacture and release from the custody and control of this Defendant thereby relieving The Hershey Company of any potential liability in this matter," The Hershey Company responded in its answer. "This Defendant asserts that all conduct and activities of The Hershey Company, as it relates to the matters alleged in the Plaintiff's Complaint, conformed to statutes, government regulation, and industry standards based upon the state of knowledge which existed at the time of the incident at issue in this matter."

Walmart removed the case to U.S. District Court for the Southern District of West Virginia because it says Samuel Oyler is seeking more than $75,000 and because the Oylers and the defendants are residents of different states. The Hershey Company consented to the removal.

J. Michael Ranson and Cynthia M. Ranson of Ranson Law Offices in Charleston will be representing Samuel Oyler.

Tanya Hunt Handley and John L. MacCorkle of MacCorkle, Lavender and Sweeney in Charleston will be representing Walmart.

Rita Massie Biser of Moore and Biser in South Charleston will be representing The Hershey Company.

U.S. District Court case number: 2:09-1283