Photo of Stephen McConnell

Did you know that both LeBron James and Steph Curry were born in Ohio? So were Neil Armstrong, Halle Berry, Simone Biles, Thomas Edison, Dean Martin, Jack Nicklaus, and Steven Spielberg. (We once ran into – we mean literally – Dean Martin as he was launching himself out of a Beverly Hills restaurant. He was old and was wearing super-thick glasses, but we recognized him. We doubt he recognized us.) The two best Union generals, Grant and Sherman, hailed from Ohio. And, of course, William Howard Taft, the man with one of the most sparkling resumes in American history (President, SCOTUS Chief Justice, Secy. Of War, Solicitor General, Governor of Cuba and the Philippines, Yale Law professor, first Commander-in-Chief to throw out first pitch at a baseball game) was a native Buckeye. While sitting as a Sixth Circuit judge, Taft authored the U.S. v. Addyston Pipe & Steel Co. case, which Robert Bork pegged as the font of all antitrust wisdom. Taft can also get some legislative credit, as he helped write the Judiciary Act of 1925, which reduced the SCOTUS caseload and was referred to as the Judges Act. You could easily triple the number of names listed above and still not run out of accomplished Ohioans. (Good grief, we left off Toni Morrison and a Wright brother!) The point is, a lot of greatness has come out of Ohio. Including – ta da! hello, tacky segue – a recent and delicious judicial opinion tossing a shingles vaccine complaint.

In Gentile v. Merck & Co., 2022 U.S. Dist. LEXIS 66206 (S.D. Ohio April 11, 2022), the plaintiff filed a class action alleging that the advertising of the Zostavax shingles vaccine falsely inflated its effectiveness. The complaint included causes of action for violations of the Ohio Consumer Sales Practices Act (OCSPA) and Ohio Deceptive Trade Practices Act (ODTPA), as well as for constructive fraud, negligent misrepresentation, and breach of contract. The defendant moved to dismiss the complaint. Like a story by Ohio writer Ambrose Bierce, the Gentile court’s decision was short and sharp.

First, the OCSPA claim was a goner because it was not brought, as required per statute, by a consumer. A “consumer” is defined as a person who “engages in a consumer transaction with a supplier.” There was no allegation that the plaintiffs in Gentile directly purchased the vaccine from the manufacturer. Nor is there likely any possible basis for such an allegation. As Dino sang, “Ain’t That a Kick in the Head?”

Second, arrivederci to the ODTPA claim because the plaintiffs lacked standing. The Ohio Supreme Court has not yet spoken to this issue, and S.D. Ohio decisions have landed on both sides, but most courts, including the Sixth Circuit in an unreported decision, have ruled that the ODTPA is like the federal Lanham Act insofar as only commercial entities (think of competitors) can sue thereunder. The Gentile court went with the majority rule, the plaintiff was not a business entity, and the ODTPA claim was, therefore, dismissed.

Third, an essential element of a constructive fraud claim is a special or confidential relationship between the plaintiffs and defendant. The plaintiff in Gentile could not plausibly plead such a special/confidential relationship. The plaintiff alleged that the vaccine advertisements were widespread on tv, in pharmacies, and on the internet. But the defendant “cannot be said to to have created a special or fiduciary relationship with with every individual who saw one or more of their advertisements.” Moreover, “[a]verage consumers impose confidence in their physicians when deciding whether to receive a vaccine, not advertisements in newspapers and on television.” It’s as if the court said (translation from “Volare”) “let’s leave the confusion and all disillusion behind” … and get rid of this silly constructive fraud claim.

Fourth, under Ohio law, the tort of negligent misrepresentation applies only in those limited circumstances in which the defendant was in the business of supplying information and the plaintiff sought guidance from the defendant with respect to a business transaction. That is, negligent misrepresentation under Ohio law is related to professional malpractice. Drug and device manufacturers are not at all like accountant statements/opinions that are expressly issued for third-party reliance. The plaintiff in Gentile did not and could not plead that the defendant was in the business of supplying information and that she sought such information for purposes of a business transaction. We are not quite ready to burst into a rendition of “That’s Amore,” but it is easy for a defense hack to feel amorous about Ohio law on negligent misrepresentation.

Finally, the breach of contract action failed for the reason that any first year (heck, first week) law student could recite: the plaintiff had not pleaded the existence of a valid contract. Rather, the plaintiff acknowledged that it was the physicians who bought the vaccines from the suppliers.

Our favorite Dean Martin song is “Everybody Loves Somebody.” Maybe love is too strong a word, but right now we are at least infatuated with the Gentile opinion.