When times are tough, attempted humor can fall flat. Opinions often add little. Fancy prose and witty turns of phrase count for little. Facts, for those whose preconceived notions allow them to be received as such, matter. The language of statutes—potentially powerful drivers of needed stability or change—should be easy to understand even without reference to additional documents on legislative intent (let alone any resort to purported executive intent). With that preface, we will keep simple and play it straight.

We have been writing about cases involving the Ohio Product Liability Act (“OPLA”) for a long time.  See, e.g.,  here , here, here, and here.  We have been litigating cases involving the OPLA even longer.  One of the main issues that used to come up was how the OPLA preempted common law. There was a period when the date that a case was filed affected what was and was not abrogated by the OPLA, which was certainly intended to provide a statutory framework for products liability claims under Ohio law, replete with limits on punitive damages and other protective provisions that a state with resident companies that manufactured products wanted. The common law, on the other hand, had been made by judges over the course of decades and tended to provide enough leeway for expansive applications of negligence and fraud in particular cases. In 2005, the OPLA was revised to make its abrogative effect clear, overruling a 1997 Ohio Supreme Court case. Old news, but it still keeps coming up.

Similarly, there are still new pelvic mesh cases being filed and, for a while now, most of the ones with diversity have not had to work their way through an MDL to get before a local federal court. Sylvester v. Ethicon, Inc., No. 1:19CV2658, 2020 U.S. Dist. LEXIS 47467 (N.D. Ohio. Mar. 19, 2020), is one such case. (From the information in the court’s opinion, it also looks to be old in the sense of time-barred, with a 2012 explant and a 2019 filing date.) It started out with a “standard” eighteen count (with fifteen claims plus loss of consortium, punitive damages, and an anti-SOL count) complaint asserting a variety of statutory and common law claims. For some reason, however, when it came time to oppose the motion for summary judgment on almost all of the counts, plaintiff decided to drop all but one of her claims under the OPLA and urge that her common law claims for negligence, fraud, and express warranty were viable. Because abrogation turns on the pleadings rather than the evidence adduced in discovery, this tactic turned the summary judgment analysis into a straight legal one.

The OPLA defines a “Product liability claim” as one that

that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following:

(a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product;

(b) Any warning or instruction, or lack of warning or instruction, associated with that product;

(c) Any failure of that product to conform to any relevant representation or warranty.

Id.at **5-6 (quoting Ohio Rev. Code Ann. § 2307.71(A)(13)). Reviewing the multiple allegations that flowed into the four negligence-based counts and three fraud-based counts, it was apparent that they each hinged on several of these categories of conduct. The court patiently went through the allegations for these seven counts and dismissed each of them. Id. at **10-15.

Express warranty was a bit trickier because of the redundancy of plaintiff’s pleading. Plaintiff’s claims that “the pelvic mesh was not fit for use by consumers nor was it of merchantable quality” were covered by the plain language of subjection (c) above and, therefore, her common law claim for express warranty was abrogated. Id. at **12-13. However, the pleading was read as broad enough to allege a warranty claim under the Uniform Commercial Code, which is not abrogated (but does not allow personal injury damages). Id. at *13.

The last contested claim, unjust enrichment, was easier. Plaintiff alleged that she “did not receive the safe and effective medical devise [sic] for which [she] paid,” which “implicates the pelvic mesh’s failure to conform to a relevant representation and/or its marketing” under subjection (c). Id. at *5. Abrogation of this claim left plaintiff with one (unchallenged) claim under O.R.C. § 2307.75, which does not really provide a pure strict liability design defect remedy as set out in some of the posts linked above.