This post is from the non-Reed Smith side of the blog.

Or maybe we should say the court cooked up a particularly nasty version of Cincinnati Chili.

The mesh case of the week, Perry v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 56268 (S.D. Ohio March 29, 2022), is the worst sort of judge-made law. It is not merely a judge making things up that the legislature never intended; in fact, the court’s opinion actively undermines legislation. Ohio expressly abolished all common-law product liability actions when it enacted the Ohio Products Liability Act (OPLA), as the court acknowledged:  “All common law products liability claims are explicitly abrogated by the OPLA.”  Id. at *7.  The OPLA was part of a trend of bringing statutory order, clarity, and efficiency to an otherwise messy, redundant, incoherent product liability landscape. In particular, the Ohio legislature enacted the OPLA after Ohio courts persisted in finding ways around more limited legislative efforts to stave off some of the silliness of the common-law.

It’s like a tug of war between legislators and judges. Who gets the last word?

In Perry, a federal court once again sticks a thumb in the legislative eye, holding that, in addition to asserting OPLA statutory claims, any plaintiff in a product liability case can also assert a common law claim for “economic loss” – which the decision defines broadly as “that the value she paid for the device was more than the value of the product she received.” Id. at *11.  Any plaintiff alleging personal injury from a defective device could make this claim. Nobody pays for a product expecting it to fail or be defective. Thus, the Perry ruling effectively overturns the Ohio legislature’s express abrogation of common-law claims in OPLA cases. For the remarkable proposition that a personal injury claim of product defect also smuggles in a separate claim for economic loss that evades the OPLA, the only citation is to a pre-OPLA case about economic loss. With no Erie analysis at all, the Perry decision vastly expands state law in a way that is not only novel but flies in the face of state statutory law.

There follows the usual TwIqbal analysis of the common-law claims, but that hardly matters in comparison to the “economic loss” ruling.

The Perry complaint was an extraordinary mish-mosh. If only for reasons of aesthetics, it should have been dismissed with instructions to do better. The complaint asserted numerous claims under the OPLA, and also claims for breach of implied warranty, fraudulent concealment, constructive fraud, common law fraud, negligent pharmacovigilance, and unjust enrichment. Other courts reviewing a similar potpourri of mesh claims (we wrote about one last week), had little difficulty separating the wheat from the chaff, and there was a whole lot more chaff than wheat. Most of these claims are duplicative make-weight. But the court labored mightily and brought forth a gnat. The court dismissed the UCC implied warranty claim for lack of privity, id. at *12-16, and the non-existent claim for negligent pharmacovigilance. Id. at *23.  So we’ve got that, which is nice. The court also dismissed plaintiff’s fraud claims for want of particularity, though the plaintiff was given leave to amend.  Id. at *19-22.

The court also dismissed the strict liability manufacturing defect claim, which is clearly the right outcome because the complaint did not hint as to how the mesh device deviated from specifications or standards. Id. at *31-33.

The entire Perry complaint is about personal injuries allegedly caused by an allegedly defective product. If that claim isn’t squarely within the metes and bounds of the OPLA then we are left wondering what is.