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The Ballinger family has filed a federal lawsuit against the distributor of a samurai sword that left their son, Tristan, with a traumatic brain injury when he was struck in the forehead last November.
“The real driver behind the lawsuit is we don’t want somebody winding up in the same situation as Tristan,” Michael Ballinger, Tristan’s dad said. “We don’t want somebody else to be hurt. We want the product pulled. I would hate to have anybody go through the same thing we’re going through with Tristan. It’s terrible.”
Michael and Nicole Ballinger, Tristan Ballinger’s parents, filed a lawsuit on Mar. 29 in the Northern District of Georgia’s Rome Division against Top Swords LLC of Dallas, Georgia. The retail company, which operates exclusively online, sells swords, helmets, chest guards and shields among other items. The majority of its merchandise is manufactured in China, according to court documents.
In the lawsuit, the Ballinger family is seeking $20 million for the injuries, damages and loss to Tristan Ballinger and $40 million for the punitive damages.
According to the lawsuit, Mindy Ballinger, Michael Ballinger’s sister, was presented with the sword in question at an employee award’s banquet in 2012 in Cincinnati, Ohio. Her supervisor ordered several samurai swords through Top Swords’ website. When they arrived, they were packaged in a cardboard box with foam inserts.
“There were no owner’s manuals, labels, stickers, warnings, package inserts or documents of any kind included within the shipments,” according to court documents.
At that time, the sword called “Anime Reino De Raso Charlotte Cuulhourne Sword” was advertised as a samurai sword or “katana” sword on Top Sword’s website for $19.95.
Mindy Ballinger chose to give the sword to her brother, Michael Ballinger shortly after the award banquet. “The sword went into storage initially but it resurfaced it the home of Michael Ballinger and Nicole Ballinger in the fall of 2016,” according to the lawsuit.
On Nov. 16, Tristan Ballinger was critically injured in his backyard. The lawsuit says Ballinger and two friends each took turns tossing a plastic water bottle in the air while the others attempted to strike the bottle in midair with the sword.
The steel blade of the sword broke off of the handle, traveled as far as twenty feet and struck Tristan Ballinger in the forehead, according to court documents.
Oldham County Emergency Medical Services (EMS) responded to the scene and took Tristan to the level one trauma center at the University of Louisville Hospital where he was diagnosed with a “penetrating traumatic brain injury.” Since then, Ballinger has undergone multiple surgeries, the most recent to place the bone flap, a piece of his skull that was taken out after his accident, back into his head.
Still in a coma, Ballinger was moved from University of Louisville hospital to the Frazier Rehab Institute where he took part in their EMERGE program. It is designed to provide comprehensive care for patients with severe traumatic brain injury who are at low levels of consciousness.
One day before his 16th birthday, Ballinger woke up from his coma after six weeks.
Throughout their investigation, Oldham County Police found “that the blade was not secured by bolts or rivets through the handle and the blade but by an adhesive akin to rubber cement,” among other findings, according to court documents.
On Feb. 8., the EMS employees who responded, John Lukar and Chad Buechele, had the opportunity to bring Ballinger back home, where he has continued to recover. Since the accident, Oldham countians have rallied around the Ballinger family with prayer circles and multiple fundraisers.
In the suit, the family alleges that the sword was “patently defective and unreasonably dangerous because the sword’s design and manufacture provided no effective means of preventing disengagement of the blade from the sword handle.”
The lawsuit also states other charges against the sword company, including negligence, breach of warranties, failure to conform, duty to warn and gross negligence.
“The Defendants had a duty to individuals including Tristan Ballinger, to exercise reasonable and ordinary care in the design, manufacture, testing, inspecting, labeling, packaging, marketing, warning, selling and distribution of their Anime Reino De Raso Charlotte Cuulhourne Sword,” according to court documents.
One of the family’s attorneys, Mat Slechter, says that the family filed suit in Georgia because that is where the company is headquartered.
“We filed for federal court for a couple reasons, we have diversity of jurisdiction and a sufficient amount of controversy to get us into federal court,” Slechter said.
We don’t know if Tristan is ever going to be able to hold a job,” his father said. “We think that number one he needs to be compensated for it and number two we’ve got to financially look out for his best interest.”
Top Swords has 20 days to respond, according to Slechter. If the case goes to a jury trial, as the Ballingers have requested, it would be heard in the Northern District of Georgia’s Rome Division.
An earlier version of this story was published on March 30.