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Rodriguez v. City of Philadelphia

United States District Court, E.D. Pennsylvania

October 31, 2017

ERIBERTO RODRIGUEZ, et al., Plaintiffs,
CITY OF PHILADELPHIA, et al., Defendants.


          Slomsky, Judge


         Plaintiffs, family members of Joanne Rodriguez and the administrator of her estate, bring this action charging various entities and persons with the death of Joanne and the posthumous birth of her son, Xavier, born with brain damage. (Doc. No. 33.) Paramedics had transported Joanne to Temple University Hospital by ambulance, whose rear door temporarily became stuck in the locked position upon arrival, trapping her and her unborn son inside for a matter of minutes. (Id. ¶¶ 61-72.) Plaintiffs allege negligence, civil rights violations, strict products liability, breach of warranty, and wrongful death, in part on the basis that the apparently defective locking mechanism installed in the ambulance contributed to Joanne's death and Xavier's disability. (See generally id.)

         On July 24, 2014, Plaintiffs Eriberto Rodriguez, Joanne's husband, and Daisy Morales, Xavier's maternal grandmother, commenced this suit in the Philadelphia Court of Common Pleas and included as a Defendant TriMark Corporation (“TriMark”), the supplier of the locking mechanism used in the ambulance that transported Joanne (“Medic Unit 22”).[1] (Id. ¶¶ 14, 21.) That same day, Defendants removed the case to this Court. (Id. ¶ 22.) On August 29, 2014, Plaintiffs filed an Amended Complaint, [2] and on December 8, 2014, Plaintiffs filed a Second Amended Complaint. (Doc. Nos. 10, 33.)

         On December 22, 2014, TriMark filed a Third Party Complaint against distributors HMI Group; HMI USA, Inc.; HMI, LTD.; and HMI Sources, Ltd. (hereinafter collectively “HMI”), with which TriMark contracted for the purchase of actuators[3] for ultimate distribution and installation in emergency transport vehicles, including ambulances and specifically Medic Unit 22. (Doc. No. 35 ¶ 6.)

         On December 21, 2015, TriMark amended its Third Party Complaint, adding as Third Party Defendants Tesor Plus Corporation (“Tesor”) and Pilock Corporation (“Pilock”), which were identified by HMI as manufacturers of the actuator at issue that was supplied to HMI before being used by TriMark. (Doc. No. 75 ¶ 9.) On August 19, 2016, Tesor and Pilock filed a Motion to Dismiss the Amended Third Party Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (Doc. No. 90.) On February 17, 2017, this Court entered an Order affording the opportunity for jurisdictional discovery and denying Tesor and Pilock's Motion to Dismiss without prejudice. (Doc. No. 119.)

         On June 1, 2017, Tesor and Pilock again filed a Motion to Dismiss the Amended Third Party Complaint pursuant to Rule 12(b)(2). (Doc. No. 126.) On June 15, 2017, TriMark filed a Response in Opposition to Tesor and Pilock's Motion.[4] (Doc. Nos. 132-36.) On June 22, 2017, Tesor and Pilock filed a Reply. (Doc. No. 140.) On July 7, 2017, a hearing was held on the Motion. (Doc. No. 142.) The Motion is now ripe for a decision.[5]


         A. Underlying Accident

         On October 1, 2012, paramedics from the Philadelphia Fire Department Emergency Medical Services responded to a 911 call for Joanne prompted by an accidental fall at her parent's home. (Doc. No. 33 ¶¶ 1, 84.) Joanne was 24 years old, around 36 weeks pregnant, and under treatment for deep vein thrombosis. (Id.) After assessing the situation, the paramedics loaded Joanne into Medic Unit 22 and transported her to Temple University Hospital in Philadelphia. (Id.) Upon arrival at the hospital, the rear door of the ambulance, out of which Joanne needed to exit in order to receive aid in the hospital, was temporarily stuck in the locked position. (Id.)

         Joanne was trapped inside the ambulance for three to four minutes before hospital personnel were able to open the door. (Id. ¶¶ 61-72.) She later expired in the hospital due to pulmonary embolism related to her deep vein thrombosis. (Id. ¶ 104.) Xavier was born by emergency cesarean section and sustained brain damage from a deprivation of oxygen. (Id. ¶¶ 1, 77-84.)

         An investigation following the events of October 1, 2012 ultimately determined that Medic Unit 22's door lock system was defective. (Id. ¶¶ 93-99.) Specifically, TriMark found that the “power lock actuator” in the door lock portion of the system had failed. (Id. ¶ 99.) It was revealed that Tesor's actuators were used in all 75 ambulances in Philadelphia's fleet. (Id. ¶ 96.) After inspecting the entire fleet of 75 ambulances, investigators discovered that two additional medic units contained this actuator defect. (Id.) According to documents provided by Horton Emergency Vehicles Co., Philadelphia was not the only Pennsylvania municipality with affected ambulances-fleets owned by Central Bucks, Bensalem and Berwyn were also affected. (Doc. No. 136-6 at 14.) Neither the quantity of Tesor's actuators used in those fleets, nor the time period in which its actuators entered Pennsylvania, has been established in the record.

         B. Manufacturing of Medic Unit 22

         TriMark is a privately owned corporation that maintains a principal place of business in New Hampton, Iowa, and conducts business in several states, including Pennsylvania. (Doc. No. 75 ¶ 1.) It supplies door hardware systems for emergency transportation vehicles like the one used in Medic Unit 22. (Id. ¶ 7.) To assemble these door hardware systems, TriMark contracted with HMI to supply actuators and other parts from foreign manufacturers. (Id. ¶ 8.)

         HMI has a marketing brochure that describes how the company “manages the entire supply chain for you, from development to delivery.” (Doc. No. 135-11 at 3.) Under a section called “Quality Assurance, ” it notes that HMI helps its “Asian vendors . . . better understand your quality requirements” and that its engineers “engage in an ongoing dialogue with you and the manufacturer to arrive at acceptable and achievable quality standards.” (Id.)

         Among the foreign companies that worked with HMI to supply actuators to TriMark were Tesor and Pilock. (Doc. No. 75 ¶ 9.) Both corporations are incorporated in the Republic of China, with principal and business headquarters in Taiwan. (Id. ¶¶ 3-4.) Neither company is incorporated, licensed, or registered to do business in the Commonwealth of Pennsylvania. (Doc. No. 126-3 at 3; Doc. No. 126-6 at 3.) Lobo Chen, General Manager and largest shareholder of both Tesor and Pilock, stated in his deposition that the two companies are separate entities and their boards of directors are distinct, although they share some common members.[6](Doc. No. 135-6 at 28:24 to 29:9.)

         Contrary to Lobo Chen's assertion, Michael Chen, a salesperson for Tesor and Pilock who reports directly to Lobo, explained in an e-mail from 2010 to Dave Magner, an engineer for TriMark, “Tesor and Pilock are the same company” and “have two different name[s] to service different countries.” (Doc. No. 135-7 at 10; see 135-6 at 79:21 to 80:3.) Consistent with that understanding, HMI stated in its Answers and Responses to Interrogatories of Defendant TriMark that “Pilock uses the Chinese names for Pilock and Tesor Plus interchangeably in their communications, and there is only one manufacturing facility producing the Pilock actuators identified with both Chinese names on its signboard.” (Doc. No. 136-14 at 5.) Lobo Chen stated in his deposition that before October 2004, when Pilock stopped making actuators, it was using a certain location as its manufacturing facility; and after November 2004, Tesor made actuators at that location. (Doc. No. 135-6 at 36:4-10.)

         Tesor and Pilock conducted business only with HMI's facility in Taiwan (“HMI Taiwan”), and Lobo Chen testified that until 2016, he was unaware HMI had any facilities in the United States. (Doc. No. 69:2-19.) Lobo Chen asserts that he never knew where HMI ultimately sold Tesor's products. (See Doc. No. 126-6 ¶¶ 14-16.) He stated in his affidavit that Tesor's actuators are sold to “distributors in Taiwan who do not reveal to Tesor Plus the name, location and identity of their re-sale/purchasing customers or the location of those re-sale/purchasing customers.” (Id. ¶ 14.) According to Lobo, Tesor sells its products “ex-factory, ” which by its custom entails shipping its products to locations in Taiwan designated by the customers, who are responsible for handling transportation from there to any location. (Doc. No. 126-4 at 52:11 to 53:20.)

         Two other Tesor employees, Rita Hu and Lin YanKun, testified about their lack of knowledge that Tesor's products were being shipped to the United States as well as their lack of knowledge about TriMark in general. Hu and YanKun are Tesor's former and current domestic sales representative, respectively. (Doc. No. 126-8; Doc. No. 126-9.) Both reside and work in Taiwan, speak and read Taiwanese and Mandarin, and have a minimal understanding of the English language. (Doc. No. 126-8 ¶¶ 1-3; Doc. No. 126-9 ¶¶ 1-3.)

         Hu received a purchase order from HMI Taiwan in 2011, which was written in English and regarded shipment of actuators. (Doc. No. 126-4 at 55:13 to 56:12, 57:9-13, 65:22 to 66:3.) Hu and YanKun testified that Tesor does not prepare HMI Taiwan's purchase orders and that HMI Taiwan makes all shipping arrangements for products bought from Tesor, and pays for and provides the shipment information on Tesor purchases. (Doc. No. 126-8 ¶¶ 5-6, 10; Doc. No. 126-9 ¶¶ 5-6, 10.) Further, neither is familiar with TriMark, and because their understanding of English is minimal, they both understood the term “Tri/Mark” on the purchase order to mean “shipping mark, ” which is the label provided by HMI Taiwan. (Doc. No. 126-8 ¶¶ 7-8; Doc. No. 126-9 ¶¶ 7-8.) They also did not know what the word “Minneapolis” on the purchase order meant; and there was no other indicator on the purchase order that the products were being shipped to somewhere in the United States. (Doc. No. 126-8 ¶ 11; Doc. No. 126-9 ¶ 11.)

         Tesor's actuators were manufactured for use in vehicles. (Id. at 64:22 to 65:15.) More than half of Tesor's products are manufactured for use in vehicles. (Id. at 104:9-17.) Tesor employs salespersons like Michael Chen who target foreign countries, including the United States, although Russia and Australia generate its main business. (Id. at 77:5 to 78:14.)

         Lobo Chen attends a yearly Consumer Electronics Show in Las Vegas, Nevada, and either he or another representative of Tesor and Pilock has attended trade shows in Florida and Louisiana. (Doc. No. 135-6 at 93:12 to 94:15; see Doc. No. 135-13.) Michael Chen accompanied Lobo to the Las Vegas trade show three times: in 2010, 2011 and 2012. (Doc. No. 135-6 at 94:16-23.) At the trade show, Tesor representatives have a booth that interested persons can approach to inquire about the company. (Id. at 94:2-15.) Tesor representatives maintain records of people who approached their booth for information. (Id.)

         Aside from the trade shows, the only person who travels on behalf of Tesor or Pilock to the United States for business trips is Lobo Chen. (Doc. No. 126-4 at 111:21 to 112:2.) He has taken three business-related trips to the United States, one to Detroit, Michigan, and two others to California, to meet potential customers. (Id. at 110:1 to 111:11.) He has been to Pennsylvania once, when a friend drove him through part of Pennsylvania on a social visit over 20 years ago. (Id. at 117:16 to 118:8.)

         Tesor maintains two English-language websites, one at and the other through the Alibaba website, but contends that they are for informational purposes only; and while customers can send inquiries to Tesor through its website, neither website permits direct ordering. (Doc. No. 135-6 at 98:11 to 101:2.) Tesor's online presence also includes an eight minute, twenty-five second YouTube video promoting the company, which was uploaded on December 24, 2012. (Id. at 105:9-19.)

         While TriMark at all times before the accident purchased Tesor's actuators from HMI and not Tesor or Pilock, there is some evidence in the record that might suggest there was a business relationship among TriMark and Tesor and Pilock. In 2001, Lobo Chen was identified in an e-mail between Dave Magner of TriMark and Jerry Lin of HMI as a contact person and the one who “will be handling Tri/Mark's projects from now on.” (Doc. No. 135-7 at 12.) In 2008, Magner contacted Lin to inform him that he would be in Taipei, Taiwan, and wanted to meet to discuss “any new products that might be available from Pilock or others, ” and “to make sure all is going well with Pilock or others.” (Doc. No. 135-9 at 4.) Magner's “main topic of interest” was “electronics or motorize[d] products that would be in a door or vehicle.” (Id.)

         The two arranged a visit to Pilock, during which Magner reviewed the assembly area. (Id. at 2.) Magner pointed out “pin support fracturing” in some actuators, and Pilock and HMI agreed to “prepare a recommended plan of action for [TriMark's] review.” (Id.) Magner had also visited Tesor or Pilock's facilities in 2005 along with Anita Reichling, another TriMark engineer. (Doc. No. 135-8 ¶ 7.) In each of these visits, TriMark met with employees of Tesor or Pilock and discussed projects, including the actuator model at issue in this case. (Id.)

         Magner also communicated directly with Michael Chen in 2010 to inquire about Tesor's actuators after Magner visited Tesor's Global Source website, which it no longer operates. (Doc. No. 135-7 at 13.) The two exchanged e-mails for a period between June 8, 2010 and July 28, 2010. (Id.) During the course of this conversation, Michael Chen made statements characterizing Tesor or Pilock's relationship with TriMark, such as “I guess the last work partnership was [a] really long time ago, ” “we are going into a partnership with [TriMark] and HMI, ” and “you are [a] longtime customer of us or actually HMI since your order is handle[d] by them.” (Id. at 8, 10.) Michael Chen also discussed problems between his employer and HMI, and suggested a company to replace HMI, Creative Works. (Id. at 8.) Magner agreed to “consider it” if Creative Works would submit a quote, but explained that TriMark “had a lot of issues with late delivery from Creative Works in the last couple months, ” while it has “had no delivery issues” with HMI. (Id. at 7.)

         Magner also e-mailed Michael Chen in September 2012 to inform him that Magner and another TriMark employee would like to visit Tesor or Pilock, and Michael Chen responded to state that he remembered Magner but was away on business. (Doc. No. 135-10 at 3-5.) Another Tesor employee then offered to schedule a ...

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