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Virgil Smith, Individually, and v. Phoenix Seating Systems

September 10, 2012

VIRGIL SMITH, INDIVIDUALLY, AND ADAM SMITH, THROUGH HIS LEGAL GUARDIAN, VIRGIL SMITH, PLAINTIFFS,
v.
PHOENIX SEATING SYSTEMS, LLC, D/B/A FALCON/LEBAC SYSTEMS, AND APRIA HEALTHCARE GROUP, INC., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. INTRODUCTION

Pending before the Court are the defendants' motions for summary judgment pursuant to FEDERAL RULE OF CIVIL PROCEDURE 56 (Docs. 113, 114).

Defendant Phoenix Seating Systems, LLC (Phoenix), requests summary judgment as to plaintiffs' strict liability claims, Counts I and II (Doc. 114), while defendant Apria Healthcare Group, Inc. (Apria), requests summary judgment as to plaintiffs' negligence claims, Counts III and IV (Doc. 113). As plaintiffs have responded to defendants' requested relief (Doc. 122), these motions are ripe for judicial resolution. For the following reasons, the Court DENIES Phoenix's motion (Doc. 114) and GRANTS Apria's motion (Doc. 113).

II. BACKGROUND

The instant litigation arises from mental and physical injuries Adam Smith (Adam) and Virgil Smith (Virgil) incurred beginning on or before August 7, 2007, allegedly resulting from polyurethanes contained in Adam's custom-made wheelchair's armrests (See Doc. 54-1). Defendants' relationship to Adam's Gel Ovations Model 312G armrests (312G) forms the crux of the instant motions. Apria is a seller of medical equipment and devices, including the custom-made wheelchair at issue (See Doc. 113-2, pp. 31-32). Phoenix is a supplier of specialty wheelchairs and wheelchair components (Doc. 114-1, pp. 7-9). Phoenix advertises and distributes products it designs and manufactures, as well as products other entities design and manufacture (Doc. 122-3, p. 3). Specifically, it served as the original conceptual designer and marketer of the 312G (Doc. 113-7, p. 10).

Adam's custom-made wheelchair resulted from a consultation he had with an Apria seating specialist, Dennis Layton (Layton), in early 2007. Layton came to plaintiffs' home to perform an evaluation (Doc. 113-2, pp. 11-12). As a result of the evaluation, plaintiffs selected a variety of wheelchair components for Adam's wheelchair and discussed the 312G (Doc. 113-2, p. 35). Apria assembled the wheelchair and Layton delivered it to plaintiffs on March 30, 2007 (Doc. 114-7). At that time, the 312G armrests were not present (Doc. 113-2, pp. 49-50). On April 23, 2007, Layton met with plaintiffs and ordered the 312Gs for Adam's wheelchair, which plaintiffs received on June 21, 2007 (Doc. 113-2, p. 56; Doc. 114-9). Phoenix sold the 312Gs at issue to Apria (Doc. 54-1, p. 2; Doc. 122-3, p. 4).

Virgil testified at his deposition that the 312Gs arrived in a large box. Inside the box was a large, sealed plastic baggy containing the 312Gs. Virgil called Layton to discuss the 312Gs' installation. Virgil then opened the baggy and stated he was "engulfed" by an "overpowering" odor (Doc. 113-9, p. 41). He then placed the 312Gs in the garage to "air out" for approximately seven days, as he did not feel comfortable immediately placing them on Adam's wheelchair due to the odor. As the odor allegedly did not dissipate, Virgil placed them on the outdoor patio for approximately three to four days (Doc. 113-9, p. 43). At that point, as he felt the odor had sufficiently diminished, Virgil placed them on Adam's chair (Doc. 113-9, p. 44).

Adam had used the 312Gs for approximately seven to ten days when his nurse Lois Frailey (Frailey) noticed fluid-filled blisters forming on Adam's arms on August 7. 2007. Thus, Virgil, Melody Smith (Melody), Virgil's wife and Adam's mother, and Frailey took Adam to the emergency room where he received treatment (Doc. 113-9, p. 53).

Virgil testified that initial testing of the 312Gs indicated a heightened level of Mercury (Doc. 113-9, p. 70). Virgil also states that certain tests conducted at the direction of Dr. Rauckman, a toxicologist, indicated that the 312Gs' cover contained Cyanate (Doc. 113-9, p. 76).

Thus, plaintiffs filed the instant action in this Court on July 28, 2009, on the basis of diversity (Doc. 1). Plaintiffs' amended complaint alleges two counts of strict liability against Phoenix. Specifically, plaintiffs state that at the time the 312G left the possession and control of Phoenix it was, "in a defective and unreasonably dangerous condition" and that:

a. It contained polyurethanes which, when originally manufactured, sustained only partial polymerization of amines and isocynates, and an excess of the catalyst mercury;

b. The armrest was completely devoid of labeling;

c. The armrest contained no warnings of any kind, including a warning of the potential health risks posed by the materials used to manufacture the armrest.

(Doc. 54-1, pp. 3-4).

Plaintiffs' Counts III and IV allege claims of negligence against Apria. Plaintiffs state Apria,

a. Negligently and carelessly failed to inform plaintiff, the purchaser, that the product was improperly designed and/or manufactured in that the product contained polyurethanes which, when manufactured, sustained only partial polymerization of amines and isocynates, and an excess of the catalyst mercury;

b. Negligently and carelessly failed to inform the purchaser that the product was completely devoid of labeling;

c. Negligently and carelessly failed to inform the purchaser that the product contained no warnings of any kind, including no warning of potential health risks posed by the materials used to manufacture the armrest;

d. Negligently and carelessly failed to inform the purchaser that there were potential health risks posed by the materials used to manufacture the armrest.

(Doc. 54-1, p. 6).

Thus, as a result of these allegations, plaintiffs allege they have, "sustained prolonged exposure to a toxic chemical combination, suffering dermal lesions externally, as well as severe kidney, liver, and pulmonary damage." Additionally, plaintiffs allege, "permanent pain, mental anguish, disability and disfigurement," an accrual of large sums of medically-related expenses, permanent prevention from attending to their usual affairs and duties, and seek lost wages and income (See Doc. 54-1).

On June 2, 2010, Phoenix filed a third party complaint for contribution and indemnity against Taiwanese corporation, Velo Enterprise Co., Ltd. (Velo), as the manufacturer of the 312Gs, and Taiwanese corporation, Rattox Corporation (Rattox), as supplier (See Doc. 54). Velo answered the third party complaint on August 18, 2010, admitting, "it was a manufacturer of [the 312G]," and that, "it sold [312Gs] to [Rattox]" (Doc. 64, pp. 3, 4). Rattox admitted that it purchased 312Gs from Velo and sold them to Phoenix (Doc. 64, pp. 5, 6). Thereafter, Phoenix requested an admission from Velo that it, "manufactures [312Gs] using a proprietary gel bend." Velo objected to this ...


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