Zuzel v. Cardinal Health, Inc.

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: Schiller, District Judge.
• Citation: Zuzel v. Cardinal Health, Inc., 565 F.Supp.3d 623 (E.D. Pa. 2021)
• Decision Date: 05 October 2021
• Docket Number: CIVIL ACTION No. 19-268
• Parties: Bella ZUZEL, Plaintiff, v. CARDINAL HEALTH, INC., and RGH Enterprises, Inc., Defendants. Cardinal Health, Inc., and RGH Enterprises, Inc., Third-Party Plaintiffs, v. Aikin Holding Corp., Third-Party Defendant.

565 F.Supp.3d 623

Bella ZUZEL, Plaintiff,

v.CARDINAL HEALTH, INC., and RGH Enterprises, Inc., Defendants.

Cardinal Health, Inc., and RGH Enterprises, Inc., Third-Party Plaintiffs,

v.Aikin Holding Corp., Third-Party Defendant.

CIVIL ACTION No. 19-268

United States District Court, E.D. Pennsylvania.

Filed October 5, 2021

Andrew M. Ominsky, Ominsky & Ominsky PC, Philadelphia, PA, for Plaintiff.

Andrew D. Kaplan, Hilary E. Johnson, Sherrie Armstrong Davis, Crowell & Moring, LLP, Washington, DC, Stephanie E. DiVittore, Barley Snyder LLP, Harrisburg, PA, for Defendants/Third-Party Plaintiffs.

Jennifer A. Kallet, Lindsey E. Lunney, Tracey McDevitt Hagan, Reilly, Janiczek, McDevitt, Henrich & Cholden PC, Philadelphia, PA, Matthew McBride, McBride Law P.C., Chicago, IL, for Third-Party Defendant.

MEMORANDUM

Schiller, District Judge.

Bella Zuzel was injured when her Cardinal Health rollator collapsed underneath her after the wheels became caught in the gap between the platform and the train on the Broad Street Line. She has sued Cardinal Health, Inc. ("Cardinal Health" or "Cardinal") and its indirect subsidiary, RGH Enterprises, Inc. ("RGH") for strict product liability, premised on a design defect and failure to warn, and breach of warranty. Cardinal Health filed a motion for summary judgment on the merits of these claims, and on the grounds that it is not the responsible party because RGH distributed the rollator. Cardinal Health also filed a motion in limine to exclude certain opinions of Plaintiff's expert Jonathon Z. Schuch pursuant to Federal Rules of Evidence 702 - 704 and 403. RGH joined Cardinal Health's pending motions after it was added as a Defendant. For the reasons set forth below, Cardinal Health and RGH's motion for summary judgment is granted in part and denied in part. Their motion in limine is denied without prejudice to renew after Defendants depose Plaintiff's expert.

I. FACTUAL BACKGROUND

Zuzel has disabilities that limit her ability to walk without the use of a wheeled mobility device known as a rollator. Zuzel purchased a Cardinal Health-branded rollator with a curved back and seat from a seller on eBay in October 2015. (See Defs.’ Ex. C, Deposition of Bella Zuzel [Defs.’ Zuzel Tr.] 122:7-13; see also Defs.’ Exs. B, E.) Zuzel's rollator was the Cardinal Health rollator model number ZCHMT25BG. (See Defs.’ Exs. B, E-H.) Zuzel selected the rollator based on price. (Defs.’ Zuzel Tr. 129:2-14.) She did not speak to anyone about what rollator to purchase, and she did not tell anyone at Cardinal Health or RGH that she intended to use the rollator on public transportation. (Id. 129:15-17, 182:4-14.) Zuzel did not see any marketing materials for the rollator other than the eBay listing. (Id. 132:9-133:14.) The rollator arrived with a diagram showing how to assemble it but no other instructions for use were included with the product when Zuzel received it. (Id. 146:9-147:5.)

A. The Broad Street Line Incident

On November 25, 2016, Zuzel was injured while exiting a Broad Street Line car using her Cardinal Health-branded rollator. When she exited the train at the Cecil B. Moore Subway Station, the front wheels of her rollator became lodged in the gap between the subway car and the platform. (Pl.’s Ex. A [Pl.’s Zuzel Tr.] 60:8-61:5.) When Zuzel tried to dislodge the rollator, it "collapsed" underneath her. (Id. 59:3-9, 60:8-16, 64:14-22; Defs.’ Zuzel Tr. 150:5-21.) Zuzel then fell, fracturing her right knee. (Pl.’s Zuzel Tr. 59:3-12.)

Prior to this incident, Zuzel frequently took the Broad Street Line. (Defs.’ Zuzel Tr. 114:9-11.) She was familiar with the Cecil B. Moore Subway Station because it was a station that she typically and ordinarily used. (Id. 98:4-19.) According to Zuzel, when she boarded or exited a subway car with her rollator, she would sometimes lift the rollator up to cross the gap, depending on whether the car was lined up with the platform. (Id. 55:15-22.) When exiting the train, Zuzel typically would not wheel her rollator into the gap if the platform was higher than the level of the train was because the rollator might get stuck. (Id. 153:10-17; see id. 170:8-171:10.) When she exited the Broad Street Line subway car on the day of the incident, Zuzel rolled her rollator into the gap between the platform and the train because the platform was not higher than the car. (Id. 171:11-172:1.)

B. Procedural History

In November 2018, Zuzel sued Cardinal Health, Southeastern Pennsylvania Transportation Authority, Inc. ("SEPTA"), and Medline Industries, Inc. in the Philadelphia Court of Common Pleas. SEPTA removed the case to this Court. Plaintiff recently voluntarily dismissed her claims against SEPTA with prejudice. In addition to the incident described above, the complaint included allegations about two other incidents not involving Cardinal Health. The Court severed and remanded Zuzel's claims against Medline and dismissed the claims against Cardinal Health without prejudice.

Plaintiff filed an amended complaint in May 2019, which asserted claims against Cardinal Health for: (1) strict product liability for failure to warn; (2) strict product liability for defective design and manufacture; and (3) breach of both express and implied warranties. The Court dismissed Zuzel's manufacturing defect and breach of express warranty claims against Cardinal Health for failure to state a claim. In August 2019, Cardinal Health answered the amended complaint; it denied it was the distributor of the rollator and stated "its subsidiary or affiliate distributed and sold the rollator." (Document No. 28 ¶ 3.) In October 2019, following a Rule 16 conference, the Court issued a Scheduling Order, which was revised in April 2020 to close discovery at the end of September 2020. In October 2020, after discovery closed, Cardinal Health filed a consent motion for leave to file a Third-Party Complaint against the alleged manufacturer of Zuzel's rollator, Aikin Holding Corp. The Third-Party Complaint names RGH as a Plaintiff and describes RGH as "an indirect subsidiary of Cardinal Health, Inc." (Document No. 44 ¶ 2.)

Pursuant to the Court's revised Scheduling Order, Cardinal Health filed a motion for summary judgment on Plaintiff's claims. After filing its motion for summary judgment, Cardinal Health separately filed a motion in limine to exclude many of Plaintiff's expert opinions. While those motions were pending, the Court granted Plaintiff leave to amend her complaint to add RGH as a Defendant. RGH retained the same counsel as Cardinal Health and joined all of Cardinal Health's pending motions by consent stipulation with Plaintiff.

C. The Agreement to Manufacture and Distribute Plaintiff's Rollator

The Third-Party Complaint alleges that "RGH contracted with Aikin to distribute the rollator" that Plaintiff was using when she fell. (Document No. 44 ¶ 4.) The Third-Party Complaint refers "collectively" to Cardinal Health, Inc. and RGH as "Cardinal Health." (Id. at 1.) It further alleges that "Cardinal Health, Inc. entered into a Private Label Agreement (‘the Agreement’) with Aikin through its indirect subsidiary, RGH. Under the terms of the Agreement, Cardinal Health agreed to distribute Aikin products under the Cardinal Health label." (Id. ¶ 10 (footnote omitted).) The Private Label Agreement—which is attached to the motion for leave to file the Third-Party Complaint as Exhibit B—includes a "Supplier Quality Agreement" that references "Cardinal Health" throughout, but "Cardinal Health" is not a defined term in the Agreement. (Document No. 42-1 at Ex. B at 22-27; accord Pl.’s Ex. D.)

D. Plaintiff's Proposed Expert Testimony

Plaintiff presents the opinions of proposed expert witness Jonathon Z. Schuch, M.Eng., P.E. (Pl.’s Ex. B [Schuch Rep.].) Schuch is a registered professional engineer in Virginia and holds a Master of Engineering degree in Biomedical Engineering. (Id. at 27.) He currently serves as the Director of Occupational Health and Wellness for the University of Virginia Health System. (Id. at 33.) Schuch has been an educator in rehabilitation engineering and assistive technology throughout his career, including serving as the Co-Director of the University of Virginia's Rehabilitation Technology Training Program. (Id. at 26.) He has published peer-reviewed articles concerning seating and wheeled mobility and has served as an Assistant Professor of Medical Education in Physical Medicine and Rehabilitation, focusing on assistive technologies and their usage. (Id. at 27, 35.) He has worked with numerous patients who use rollators. (Id. at 26.)

Schuch's Report offered expert opinions supporting Plaintiff's claims against Cardinal Health and SEPTA. (Id. at 1-2.) Among other things, he reviewed deposition transcripts, interrogatory responses, documents produced in this case, and "[p]hotographs of the Cardinal Health Rollator." (Id. at 3.) He also reviewed "scientific literature related to the use of rollators, [and] the applicable [International] ISO standard pertaining to rollators." (Id. at 14.) Schuch offers the following opinions pertaining to Plaintiff's claims against Cardinal Health and RGH:

1. Ms. Zuzel was using the incident Cardinal Health rollator for its intended purpose. Specifically, Ms. Zuzel was using the rollator to assist her in ambulation.

2. Ambulation in one's community while using a rollator, which may include accessing public transportation services, is a foreseeable, if not intended, use of a rollator.

3. Per International (ISO) Standard 11199-2:2005, rollators are not supposed to unintentionally fold or collapse when in the use or working position. Rather, the folding mechanism must stay securely locked to prevent unintentional folding of the rollator.

4. Per ISO Standard 11199-2:2005, rollators used in outdoor environments must have front wheels with a diameter that is greater than 7 inches (180 mm).

5. Per long-standing and well-accepted practices, instructions for the use of a medical device and warnings

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