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Dorothy Dolfi, Administrator of the Estate of Gaston B. Dolfi v. Zoll Medical Corporation T/D/B/A Zoll and Zoll Medical and Zoll

April 7, 2011


The opinion of the court was delivered by: Ambrose, District Judge


In January of 2008, Gaston Dolfi collapsed outside his residence. A neighbor called "911" and commenced CPR while awaiting the arrival of the Canonsburg Ambulance Service. The EMS was unable to utilize various pieces of its medical equipment and called for backup. Ultimately Gaston Dolfi was transferred to the Emergency Department of Canonsburg General Hospital where efforts to resuscitate him failed.

Plaintiff Dorothy Dolfi ("Dolfi"), the wife and Administrator of Gaston Dolfi's Estate, initiated two separate lawsuits based upon the events surrounding Gaston Dolfi's death. In a suit currently pending in the Court of Common Pleas of Washington County, Pennsylvania (Docket No. 2010-131) against Canonsburg General Hospital, Canonsburg General Hospital Ambulance Service, Canonsburg Ambulance Service, Johnathan C. Landis. M.D., Megan Wood, Desmond O'Donohoe, Eric Zaney, Terry Wiltrout and William Blair, Dolfi asserts various claims for wrongful death, vicarious liability and survival actions. Essentially, Dolfi contends that the "Auto Pulse Units" and defibrillator units the EMS crew had, failed to function properly and that such failure caused Gaston Dolfi's death. Dolfi charges the Defendants with, among other things, failing to insure that the pre-hospital care was both appropriate and timely in nature; with failing to insure that the equipment on the ambulance was properly inspected and maintained; with failing to insure that key lifesaving equipment such as defibrillators and Auto Pulse Units had readily available backup units on any ambulances dispatched; with failing to properly supervise and train personnel assigned to the ambulances dispatched; and with failing to insure that the dispatched crews knew the appropriate action to take when a cardiac arrest was suspected or had occurred and an equipment failure occurred.

Dolfi also initiated the current suit against Defendant Zoll Medical Corporation ("Zoll") -- the manufacturer of the Auto Pulse Unit and the defibrillator. Though Dolfi commenced this suit in the Court of Common Pleas of Washington County as well, Zoll removed it to this Court. Dolfi asserts claims of strict liability against Zoll based in part upon the theory that Zoll failed to manufacture the Auto Pulse Unit and the defibrillator in an appropriate fashion; that Zoll failed to properly inspect the devices and that Zoll failed to include appropriate warnings and / or instructions in the event the units malfunctioned. Dolfi also asserts claims of negligence, wrongful death and survival actions based largely upon the same allegations.

Zoll has filed a Joinder Complaint against Additional Defendants Canonsburg General Hospital, Canonsburg General Hospital Ambulance Service and Canonsburg Ambulance Service (the "Hospital Defendants"). See EFC Docket No. [14]. Zoll contends that, after reviewing the Complaint Dolfi filed against the Hospital Defendants in the Court of Common Pleas of Washington County, Pennsylvania, it concluded that the Hospital Defendants may be responsible for the injuries and losses that Dolfi also attributes to Zoll. Accordingly, Zoll asserts claims of negligence, gross negligence / willful misconduct, indemnity and contribution against the Hospital Defendants.

The Hospital Defendants have filed a Motion to Dismiss this Joinder Complaint. See ECF Docket No. [17]. The Motion is premised upon Zoll's failure to file a Certificate of Merit; the fact that the cause of action asserted in Count I does not meet the pleading requirement of 35 Pa. CSA § 8101, and the fact that Zoll inappropriately requested attorney's fees.

After careful consideration, and for the reasons set forth below, I find the Motion to be meritorious. Count I is dismissed without prejudice to file a Certificate of Merit. Count II is dismissed with prejudice and the request for attorney's fees is stricken.

Standard of Review *fn1

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, I must construe all allegations of the Complaint in the light most favorable to the plaintiff. I must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Worldcom , Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). However, as the Supreme Court made clear in Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007):

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). (internal citations, footnotes and quotation marks omitted). See also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 1008) (a plaintiff's factual allegations must be enough to raise a right to relief above the speculative level).

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court held, ". a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks omitted).

In Iqbal, the Court specifically highlighted the two principals which formed the basis of the Twombly decision. First, for the purposes of a motion to dismiss, courts must accept as true all factual allegations set forth in the complaint, but courts are not bound to accept as true any legal conclusions couched as factual allegations. See also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). Second, a complaint will only survive a motion to dismiss if it states a plausible claim for relief, which requires a court to engage in a context-specific task, drawing on the court's judicial experience and common sense. Id. at 1950. Where well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but has not shown -- the complainant is entitled to relief. Id., citing, F.R.Civ. P. 8(a)(2).


I. Counts I and II - ...

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