ALLENTOWN – A Nebraska corporation has been dismissed from injury litigation brought by a York County man who alleged he was severely injured on the job when his arm was crushed inside the moving parts of a sampler machine.
Drew Kessler of Spring Grove first filed suit in the Lancaster County Court of Common Pleas on March 16 versus InterSystems, Inc. and InterSystems International, LLC of Omaha, Neb., plus ABC Corporations 1-10.
“At all times relevant hereto, plaintiff Drew Kessler was an employee of Purdue Agribusiness and worked its facility located at 1897 River Road, Marietta, PA 17547. The subject sampler’s nameplate indicated it was Model No. EBC2410001CFH and Serial No. 07171033768,” the suit said.
“On or about July 29, 2020, plaintiff Kessler, while working in the normal course and scope of his employment at Purdue Agribusiness, was attempting to clear a jam in the subject sampler machine when the subject sampler machine’s moving parts suddenly and unexpectedly oscillated, crushing plaintiff’s arm in the sampler machine. Defendants InterSystems and/or defendants ABC Corporations 1-10 designed, manufactured, built, sold, installed and/or otherwise supplied the subject sampler machine to be used at the Purdue Agribusiness facility located at 1897 River Road, Marietta, PA 17547.”
The suit said that the purpose of the machine, which contains moving parts, is to collect representative samples of granular materials from the end of a conveyor belt at the Purdue Agribusiness facility.
“The subject sampler machine was defective because it permitted users to access hazardous moving parts while the machine was in operation, because it failed to take appropriate measures to prevent users’ body parts from coming into contact with the dangerous, unguarded, rotating, oscillating and/or traversing components, because it failed to incorporate necessary safety features, including an interlock feature, to cut off power to the machine when the hood was open and because the foreseeable risk of harm posed by the product design could have been reduced and/or eliminated by a feasible and reasonable alternative design,” the suit stated.
“As a direct and proximate result of defendants’ tortious misconduct and the defective nature of the subject sampler machine, plaintiff Kessler suffered the injuries set forth below, as well as compensable damages, many of which are permanent in nature, including but not limited to: Crush injury to his left arm, left hand and forearm, which caused an open displaced comminuted fracture of his left radius, left ulna and an open fracture of middle of left radius and left ulna, ultimately requiring surgery; crush injuries to his forearm; laceration to the ulnar aspect of the forearm; deformity of left forearm; loss of earnings and earning capacity, past and future; great pain, suffering, scarring and disfigurement, and loss of enjoyment of life’s pleasures, past and future; hospital and medical expenses, past and future; and mental and emotional agitation and suffering.”
After the case was removed to the U.S. District Court for the Eastern District of Pennsylvania on April 28, defendant InterSystems International, LLC filed an answer to the complaint denying its assertions, along with affirmative defenses on May 6.
“Any allegations contained in the complaint not specifically admitted herein are expressly denied generally. Service of process as to answering defendant may have been insufficient and/or improper. Plaintiff’s complaint fails to state a claim or a cause of action upon which relief may be granted. Plaintiff’s claims are barred by the applicable statute of limitations, by the doctrines of waiver, laches and/or estoppel, by the doctrines of res judicata or collateral estoppel and by other applicable state and/or federal statute and/or law,” the defendant’s answer stated, in part.
“Plaintiff was the sole and proximate cause of his injuries. Plaintiff’s alleged claims are barred by the doctrines of contributory negligence and/or comparative negligence, by the Fair Share Act, by the doctrine of assumption of the risk and by the release, settlement and/or judgment of any claims or lawsuits arising out of this accident. Plaintiff failed to mitigate his alleged damages, and, therefore, plaintiff is barred from recovery, either in whole or in part. Answering defendant did not owe a duty of care to plaintiff. Answering defendant did not breach any duty of care owed, if any, to plaintiff.”
After the Court issued notice to the plaintiff on June 28 that the docket did not indicate defendant InterSystems, Inc. was properly served as of that date, the Court added that the company could be dismissed as a defendant if proof of service was not shown within the following 30 days.
U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. followed up with an order of his own on the subject, dated July 29.
“Upon consideration of the complaint filed on April 28, 2022, this Court’s notice of June 28, 2022, which informed plaintiff that no proof of service had been filed as to InterSystems, Inc., and indicated to plaintiff that failure to make service within 30 days could result in dismissal of the action as to InterSystems, Inc., and of the fact that, to date, plaintiff has failed to timely effectuate service on said defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, it is ordered that: 1) Plaintiff shall show cause on or before Aug. 5, 2022, why the complaint should not be dismissed as to InterSystems, Inc. for failure to serve the summons and a copy of the complaint within 90 days of filing of the complaint,” Leeson said.
UPDATE
Leeson followed up in an Aug. 10 memorandum opinion that InterSystems, Inc. would indeed be dismissed from the case, for the aforementioned service-related reasons.
Leeson cited the following factors from Poulis v. State Farm Fire & Cas. Co., a 1984 case from the U.S. Court of Appeals for the Third Circuit, in explaining why InterSystems, Inc. would be removed from the litigation: 1) The extent of the party’s personal responsibility; (2) The prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) A history of dilatoriness; (4) Whether the conduct of the party or the attorney was willful or in bad faith; (5) The effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) The meritoriousness of the claim or defense.
“The first Poulis factor weighs neutrally because there is no indication of whether counsel or Kessler himself is responsible for the failure to effect proper service on Intersystems, Inc. under rule 4(m) or otherwise comply with the Court’s Order. The second factor weighs in favor of dismissal because the failure of Kessler to serve Intersystems, Inc. wholly frustrates and delays the resolution of this case. As to the third factor, Kessler has engaged in repeated delay with respect to his obligation to serve Intersystems, Inc. under Rule 4(m), in addition to a failure to meet his obligations to comply with this Court’s orders. Since the removal of this action, Kessler has delayed service of Intersystems, Inc. and has similarly failed to comply with this Court’s order aimed at progressing the litigation as to that defendant,” Leeson stated.
“Regarding the fourth factor, because this Court has no explanation for Kessler’s dilatoriness, it is unable to determine whether the conduct is in bad faith. This factor is therefore neutral. The fifth factor, the availability of alternative sanctions, weighs in favor of dismissal. Other sanctions, including monetary sanctions, are not an appropriate alternative to dismissal under these circumstances. Despite a notice from this Court and an order of this Court, Kessler has indicated no intent to pursue his claims against defendant Intersystems, Inc. Accordingly, monetary sanctions would be ineffective. The final factor, the merit of the claims at issue, weighs neutrally. In the absence of service, Intersystems, Inc. has not entered an appearance or otherwise defended itself against the claims alleged in Kessler’s complaint. Accordingly, there is no way of fairly adjudicating the merit value of these claims at this time. Therefore, this factor is weighed neutrally.”
For counts of negligence, strict liability and breach of warranty, the plaintiff is seeking damages in excess of the arbitration limits of the Court for all damages available under the facts and Pennsylvania law, as well as interest and costs.
The plaintiff is represented by Bradley R. Smith of Galfand Berger, in Philadelphia.
The defendants are represented by Jacob C. Lehman and Jacqueline Campbell of German Gallagher & Murtaugh, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:22-cv-01648
Lancaster County Court of Common Pleas case CI-22-01487
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com