Photo of Bexis

Litigated a prescription drug product liability case in Ohio lately? Say in, oh … the last quarter century or so?
If you have, then you’ve run into our old friend the heeding presumption. In the very first prescription drug product liability case that the Ohio Supreme Court ever encountered, it adopted a “presumption” that a plaintiff in a strict liability case would have read and heeded an “adequate” warning, had one been given:

In satisfying the first branch of the proximate cause burden stated above, the plaintiff is aided by a rebuttable presumption that the failure to adequately warn was a proximate cause of the plaintiff’s ingestion of the drug.

Seley v. G.D. Searle & Co., 423 N.E.2d 831, 834 (Ohio 1981) (syllabus, para. 4). That was a long time ago – back when that court still wrote syllabuses (syllabi?) for its opinions. Heck, it was back when Dinsmore & Shohl did plaintiffs’ work (check out who represented the plaintiff in Seley; we’re assuming Westlaw is accurate on this).
Relying on a couple of cases out of Indiana and Oklahoma (two hotbeds of jurisprudential innovation), Seley held that Restatement (Second) of Torts §402A, comment j (1965) – stating that a manufacturer could presume that an existing adequate warning would be read and heeded – could be stood on its head to presume, as well, that a non-existent adequate warning would hypothetically have been read and heeded had it been given:

Comment j to Section 402 A (Restatement of Torts 2d) establishes a presumption that an adequate warning, if given, will be read and heeded. In such a situation, the presumption established works to the benefit of the manufacturer. However, where no warning is given, or where an inadequate warning is given, a rebuttable presumption arises, beneficial to the plaintiff, that the failure to adequately warn was a proximate cause of the plaintiff’s ingestion of the drug. This presumption, absent the production of rebutting evidence by the defendant, is sufficient to satisfy the first branch of the plaintiff’s proximate cause burden.

Seley, 423 N.E.2d at 838 (citations omitted).  Since almost every prescription drug product liability case is an inadequate warning claim, that means the ostensible burden of proof (or at least production) gets shifted in every case.
A lot has happened since then. The ALI took a second look at comment j and decided that the language Seley relied upon was “unfortunate” and shouldn’t be followed. See Restatement (Third) of Torts, Products Liability §2, reporters notes to comment l (1997). Other courts recognized that the simplistic rulings in these early cases ignored reality (most plaintiffs don’t read available warnings – that’s why they’re plaintiffs), as well as the nature of warnings where an unavoidably unsafe product was involved. That’s been discussed on this blog before, here.
But in Ohio, Seley is still the law….
Or is it?
That’s today’s bright (or maybe crazy, you decide) idea.
While the Ohio courts have pretty much stood still since Seley, the Ohio legislature has not.
It’s passed something called the Ohio Product Liability Act (“OPLA”).
And it’s had to pass OPLA more than once because for quite a few years the Ohio Supreme Court was hostile to legislative tort reform. See Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999) (declaring large chunks of earlier version of OPLA unconstitutional); Carrel v. Allied Products Corp., 677 N.E.2d 795, 796 (Ohio 1997) (declaring that, “all common-law products liability causes of action survive [OPLA] unless specifically covered by the Act”).
The Ohio legislature didn’t like these judicial end runs around OPLA, and they tried again and again until they got things right. In particular, the legislature didn’t like Carrel, which added all sorts of loopholes to the prior version of OPLA by holding: (1) “the General Assembly will not be presumed to have intended to abrogate a common-law rule unless the language used in the statute clearly shows that intent”; and (2) “there is no explicit statement [in OPLA] that this definition [of “product liability action”] was meant to abolish common-law actions.” 677 N.E.2d at 798-99.
Since Carrel, the Ohio legislature has assiduously gone about providing the “explicit” legislative intent that the court had found lacking.
In a 2004 amendment to OPLA (effective in 2005), the legislature added Ohio R.C. §2307.71(B), which states that OPLA is “intended to abrogate all common law product liability claims or causes of action.” An uncodified part of the same law was even more explicit:

The General Assembly declares its intent that the amendment made by this act to section 2307.71 of the Revised Code is intended to supersede the holding of the Ohio Supreme Court in Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, that the common law product liability cause of action of negligent design survives the enactment of the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised Code, and to abrogate all common law product liability causes of action.

2004 Stat. 80, §3(D) (uncodified).
In 2006 the Ohio legislature amended OPLA again, and it sharpened its explicit legislate intent even further:

The General Assembly declares its intent that the amendments made by this act to sections 2307.71 and 2307.73 of the Revised Code are not intended to be substantive but are intended to clarify the General Assembly’s original intent in enacting the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised Code, as initially expressed in Section 3 of Am. Sub. S.B. 80 of the 125th General Assembly, to abrogate all common law product liability causes of action including common law public nuisance causes of action, regardless of how the claim is described, styled, captioned, characterized, or designated. . . .

2006 S 117, § 3 (effective date August 1, 2007) (uncodified).
FYI: all this uncodified stuff is in the annotated version of OPLA, between the codified text and the annotations.
Thus, under OPLA as it currently stands, the duty to warn is now a purely statutory claim. See Ohio R.C. §2307.76. All common law claims (“regardless of how”. . .etc.) concerning warnings have been quite explicitly abrogated.
There’s no heeding presumption written into OPLA – and “[i]t must be presumed that the General Assembly, in [enacting] statutes, was mindful of the common law.” In re Petition for Annexation of 368.08 Acres, More or Less, 706 N.E.2d 1, 8 (Ohio App. 1997).
Moreover, the Seley heeding presumption is clearly “common law” – based on two out-of-state cases and a now-repudiated section of the Restatement of Torts.
So we think that it’s a reasonable reading of OPLA, especially in light of the vehement and repeated expressions of legislative intent to displace the common law, to argue that with the enactment of OPLA, the Seley heeding presumption no longer exists.  It’s been “abrogated” along with the rest of the common law in this field of law.
Has any defendant ever taken this position? We don’t know of it being done, and there’s certainly no case on Westlaw addressing this argument pro or con.
There’s gotta be a first time.