Vollmer v. United Seating & Mobility, LLC

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JAMES E. VOLLMER, Plaintiff, v. UNITED SEATING AND MOBILITY, L.L.C., d/b/a NUMOTION and ATG-COLORADO, INC., d/b/a NUMOTION, Defendants.

No. 5:20-CV-05082-KES

United States District Court, D. South Dakota, Western Division

August 30, 2023

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

Defendants United Seating and Mobility, L.L.C., d/b/a Numotion, and ATG-Colorado, Inc., d/b/a Numotion, (collectively Numotion) move for summary judgment on the three remaining counts in the above-captioned matter. Docket 37; see Docket 1 (showing six initial counts); Docket 36 (dismissing counts 4-6). Plaintiff, James E. Vollmer, opposes the motion arguing that questions of material fact remain for the jury. See Docket 47.

BACKGROUND

I. Factual Background

The central facts of this matter are not largely in dispute. But when a factual dispute appears in the record, this court construes the facts in the light most favorable to Vollmer, the non-moving party. See Lissick v. Andersen Corp., 996 F.3d 876, 882 (8th Cir. 2021).

In 2010, Vollmer sustained a catastrophic spinal cord injury that resulted in full paralysis and loss of sensation to his lower body. Docket 39 ¶ 1; Docket 50 ¶ 1. Following the injury and subsequent rehabilitation therapy, Vollmer purchased a Sunrise Quickie GT (Quickie GT) model wheelchair. Docket 39 ¶ 2; Docket 50 ¶ 2. Vollmer used the Quickie GT for several years until Craig Hospital recommended that he replace it. See Docket 39 ¶ 7; Docket 50 ¶ 7.

On July 20, 2016, Vollmer's physical therapist and a Numotion assistive technology professional (ATP) evaluated Vollmer for a new wheelchair. Docket 39 ¶ 8; Docket 50 ¶ 8. Because Vollmer was satisfied with the Quickie GT, he asked for one similar to it. Docket 39 ¶ 9; Docket 50 ¶ 9. Numotion recommended the Quickie 5R, which had replaced the Quickie GT. Docket 39 ¶ 10; Docket 50 ¶ 10. Numotion also ordered a new 16” x 18” J2 cushion to accompany the Quickie 5R per a prescription from Vollmer's primary care provider. Docket 39 ¶ 12; Docket 50 ¶ 12 (not disputing).

On November 1, 2016, Numotion delivered the Quickie 5R to Vollmer. Docket 39 ¶ 13; Docket 50 ¶ 13. Numotion made some modifications to the Quickie 5R at the time of delivery. Docket 39 ¶ 20; Docket 50 ¶ 20 (disputing efficacy of modifications, not their existence). Craig Hospital later made additional modifications, including an adjustment to the footrest. Docket 39 ¶ 22; Docket 50 ¶ 22. As a result of the footrest modification, the 16” x 18” cushion contacted the back of Vollmer's knee. Docket 39 ¶ 23; Docket 50 ¶ 23 (not disputing alteration caused contact with Vollmer's knee). After the adjustment, Craig Hospital conducted pressure mapping, a technique that provides information about the location of high-pressure areas in patients without sensation, on Vollmer and prescribed a slightly smaller version of the same cushion, a 16” x 16” J2 Deep Contour cushion. Docket 39 ¶¶ 24, 26; Docket 50 ¶¶ 24, 26; Docket 48-12 at 11-12; see also Docket 48-5 at 15-16 (demonstrating use of pressure mapping to detect high-pressure areas); Docket 48-12 at 11-12.

Following a prescription from Craig Hospital, Numotion ordered a 16” x 16” cushion and delivered it on October 24, 2017 to Vollmer. Docket 39 ¶¶ 26, 29; Docket 50 ¶¶ 26, 29. Numotion did not perform pressure mapping or any other assessment of Vollmer and the Quickie 5R when the 16” x 16” cushion was delivered. See Docket 48-2 at 7 (Vollmer testifying in his deposition that after picking up the cushion he “just drove away”). After receiving the new cushion, Vollmer began using the Quickie 5R full time, phasing out use of his older model wheelchair. See id. at 5. Additionally, sometime after receiving the Quickie 5R, Vollmer purchased a girdle belt, and either Vollmer or Vollmer's parents installed the belt onto the Quickie 5R. Docket 39 ¶¶ 40, 42; Docket 50 ¶¶ 40, 42 (disputing only whether Numotion was contacted about belt purchase).

On January 25, 2018, Vollmer reported a right hip wound to his physician and was referred to wound care. Docket 39 ¶ 34; Docket 50 ¶ 34. The same day, a Numotion service technician serviced the Quickie 5R and recorded his findings. Docket 39 ¶ 35; Docket 50 ¶ 35. The technician did not note at that time whether the seat was stretched, a condition referred to as hammocking. See Docket 38-21; Docket 39 ¶ 37; Docket 50 ¶ 37 (not disputing that report omits mention of seat sling); Docket 48-5 at 35 (explaining “a stretched seat sling” is “hammocking”). LifeScape, a competitor to Numotion, inspected the Quickie 5R in October 2018 and found that the seat was hammocked. Docket 39 ¶¶ 47, 50; Docket 50 ¶¶ 47, 50.

As a result of the January 2018 pressure sore, Vollmer reports that he was put on bedrest and suffered complications including surgery. See Docket 1 ¶ 28; Docket 39 ¶ 34 (acknowledging wound).

The parties dispute the cause of the pressure sore, with Vollmer arguing that the injury was caused by Numotion's negligence and Numotion arguing that the injury was due to other factors, such as Vollmer's own actions or the use of other assistive devices. See Docket 39 ¶¶ 46; Docket 50 ¶¶ 46.

II. Procedural Background

In his complaint, Vollmer alleges one count of negligence, one count of negligent training, supervision, and retention, one count of negligent assembly and negligent maintenance, and three counts of product liability. Docket 1 at 6-14. Vollmer later filed a motion to dismiss the three counts of product liability. Docket 35. The court granted the motion on January 26, 2023. Docket 36. Vollmer also filed for leave to amend the complaint. Docket 29. The court denied Vollmer's motion, leaving the three remaining counts from the original complaint pending before the court. See Docket 55.

On January 31, 2023, Numotion filed a motion for summary judgment on the remaining three counts and on Vollmer's request for punitive damages. Docket 37; Docket 40 at 13-25. Contemporaneously, Numotion moved to exclude the testimony of Vollmer's two expert witnesses in this matter. Dockets 41, 43. Vollmer filed his opposition to all motions. Dockets 46, 47. The court previously considered Numotion's motions to exclude and now turns to its motion for summary judgment. See Docket 56.

DISCUSSION

I. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.” Morrow v. United States, 47 F.4th 700, 704 (8th Cir. 2022) (alteration in original) (quoting RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995)). In reviewing the record, the court views the facts in the light most favorable to the non-moving party. Lissick, 996 F.3d at 882. But “[t]he mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the factfinder could reasonably find for the [movant].” Turner v. XTO Energy, Inc., 989 F.3d 625, 627 (8th Cir. 2021) (cleaned up) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

“Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.' ” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citation omitted).

II. Negligence and Negligent Maintenance

“As a federal court sitting in diversity jurisdiction, [the court] appl[ies] the law that the forum state would apply.” Winthrop Res. Corp. v. Stanley Works, 259 F.3d 901, 904 (8th Cir. 2001). Under South Dakota law, “[t]he three necessary elements of actionable negligence are: (1) A duty on the party of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.” Blaha v. Stuard, 640 N.W.2d 85, 90 (S.D. 2002) (citing Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D. 1998)). “In a suit for professional negligence, the plaintiff must prove that the professional deviated from the required standard of care.” Hanson v. Big Stone Therapies, Inc., 916 N.W.2d 151, 158 (S.D. 2018). The parties do not dispute that Vollmer suffered an injury. See Dockets 39 ¶¶ 46-47, 54 (acknowledging pressure sores); Docket 50 ¶¶ 46-47, 54 (agreeing that Vollmer suffered pressure sores). Rather, the parties disagree as to what duty is owed to Vollmer by Numotion and to the cause of Vollmer's injury. Docket 40 at 13, 19; Docket 47 at 10, 25.

A. Duty and Standard of Care

Numotion claims that Vollmer cannot demonstrate the existence of either a duty or a breach of duty on its part and, thus, Counts I and III alleging negligence and negligent maintenance must fail. See Docket 40 at 19-24.

Vollmer contends that Numotion owed a duty to him due to the risk of foreseeable harm in “ordering, delivering, adjusting, and maintaining the wheelchair and the cushion and other components.” Docket 47 at 25. Further, Vollmer argues that Numotion violated that duty when it did not conduct a 19-point inspection, pressure mapping, or other objective testing at every appointment, including the delivery of the 16” x 16” cushion. Id. at 10-11, 13, 17-18.

“ ‘[T]he existence of a duty is a question of law to be determined by the court' and not the jury.” Hamilton v. Sommers, ...