Petrese Tucker, U.S. District Judge for the Eastern District of Pennsylvania.

A man with multiple sclerosis who was burned by a cushion he used to help with mobility can move forward with his lawsuit alleging that the seller is liable for burns he suffered, a federal judge has ruled.

U.S. District Judge Petrese Tucker of the Eastern District of Pennsylvania denied defendant Edizone LLC's motion for summary judgment dismissal of Jeffrey Tihansky's claims.

Tihansky claims he suffers from decreased sensation because of his condition, Tucker said in her opinion. He purchased a Wondergel portable cushion, which he used on his motor scooter. He subsequently stored the scooter in his van.

“The scooter, and Wondergel cushion stayed in the van. Plaintiff later returned to his van and transferred back onto the scooter. It is unclear how long the cushion was in the van, and how long plaintiff sat on the cushion,” Tucker said. “However, 'as a result of the prolonged exposure to the [Wondergel cushion], [p]laintiff suffered serious and permanent injuries.' Due to his medical conditions, plaintiff did not feel the temperature of the Wondergel cushion as he was utilizing his scooter; consequently, plaintiff suffered second degree burns on his buttocks.”

Tihansky filed his products liability lawsuit against Edizone in December 2017, alleging strict liability, breach of the implied warranties of merchantability and fitness for a particular purpose, and negligence, Tucker said.

The defendant argued that it did not develop, manufacture or sell the Wondergel, and therefore it cannot be liable. Edizone also claimed spoliation of the evidence.

Edizone argued that another company, Purple LLC, developed and designed the Wondergel. According to Tucker, Edizone assigned Purple “'substantially all of its intellectual property … and Purple licensed back to [defendant] such intellectual property for use outside the consumer comfort and cushioning field of use reserved by Purple.'”

However, the plaintiff countered that Purple's licensing of the Wondergel cushion doesn't mean Edizone wasn't also selling or marketing the cushion.

“Considering the evidence on the record, the court agrees with plaintiff. Defendant has not presented any evidence which would lead the court to believe that it did not market, sell and license the Wondergel cushion,” Tucker said. “Defendant's role in the marketing and selling of the Wondergel cushion is a genuine issue for trial. Summary judgment on plaintiff's strict liability claim is denied.”

James Radmore of the Law Offices of James Radmore in Philadelphia represented Tihansky and did not respond to a request for comment.

Seth Schwartz of Marshall Dennehey Warner Coleman & Goggin represents Edizone and did not respond to a request for comment.