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

Mismatch your socks – you’re bold.  Mismatch your shoes – you’re frazzled.  Mismatch plates on a dining table – your creating ambience.  Mismatch your pizza with pineapple – well don’t knock it until you’ve tried it.  Treat the law like it’s your socks – we’ve got a problem.

That’s what we think the court did in In Re Proton-Pump Inhibitor Products Liab. Litig., 2022 WL 2819158 (D.N.J. Jul. 19, 2022) when it chose to recognize that Ohio abrogated all common law products liability claims but also chose to allow plaintiff to assert the common law heeding presumption that was not adopted by the Ohio legislature in their enactment of the Ohio Products Liability Act (OPLA). 

There was no dispute in the case at issue that plaintiff was an Ohio resident who received his prescription for Nexium in Ohio and that therefore Ohio law applied.  Ohio courts adopted the heeding presumption in Seley v. G.D. Searle & Co., 423 N.E.2d 831, 834 (Ohio 1981) based on comment j to Restatement (Second) of Torts §402A (1965).  A comment that the American Law Institute has since decided was “unfortunate” and shouldn’t be followed. See Restatement (Third) of Torts, Products Liability §2, reporters notes to comment l (1997).  So, the heeding presumption is an outdated aspect of the Ohio common law.  Which may be why the Ohio legislature did not include it when it enacted OPLA in 1998.    

OPLA was not warmly received by the Ohio judiciary.  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”).  So, the Ohio legislature amended OPLA in 2005 to add §2307.71(B), which states that OPLA is “intended to abrogate all common law product liability claims or causes of action.”   

Based on that very clear pronouncement, the PPI MDL court granted summary judgement on plaintiff’s claims for negligent misrepresentation, fraud/fraudulent misrepresentation, and fraudulent concealment.  In re PPI, at *8-10.  Each of the claims was based on allegations that defendants made or omitted statements regarding the drug’s safety and efficacy which the court correctly concluded amount to failure to warn claims and were therefore subsumed by OPLA.  Id.

But when it came time to address that failure warn to claim under OPLA, the court veered from strict adherence to the statute.  Apparently, the legislature’s otherwise comprehensive abrogation of pre-statute common-law does not extend to the equally common-law heeding presumption that pre-statute, common-law decisions had created   Put another way, the court’s ruling is that OPLA abrogated the common law claim of strict liability failure to warn but did not abrogate the heeding presumption associated with that common law claim despite the fact the OPLA undeniably does not include or adopt the heeding presumption.  We should note that this analysis is not in the opinion.  The court took for granted the heeding presumption applied and if that was challenged, the court did not address it.

Rather than finding the heeding presumption abrogated, the court went on to interpret it in an extreme way — if any of a plaintiff’s multiple physicians dies before being deposed then the heeding presumption effectively becomes irrebuttable because the dead doctor is automatically “presumed” to follow whatever warning the plaintiff claims should have been given. Id. at *4-5.  We think, as defendants argued, that the lack of prescriber testimony should not strengthen plaintiff’s case but weaken it.  Without prescriber testimony, plaintiff “could not demonstrate that her physician would have acted differently had he been given a different warning.”  Id. at *5 (quoting Heide Heide v. Ethicon, 2020 U.S. Dist. LEXIS 48402, *11 (N.D. Ohio Mar. 20, 2020) (granting summary judgment for defendant where plaintiff failed to depose her prescriber).  Since plaintiff clearly bears the burden of causation under OPLA, this is the proper result in a post-OPLA world where pre-OPLA common law claims no longer exist. 

Since plaintiff’s initial prescriber was deceased, plaintiff got the benefit of the automatic presumption in this case.  But the court went on to scrutinize the testimony of his other two prescribers and found both were insufficient to rebut the heeding presumption.  We disagree with the court as to the prescriber who testified that he still considers the drug “safe and effective” and “nothing that he heard as the deposition [meaning what plaintiff considers should have been warned about] caused him to question [his] decision to prescribe Nexium to the plaintiff.”  Id. at *6.  If that does not rebut the presumption, we are not sure what does.   However, to get summary judgment the defendant has to demonstrate that “each and every” prescriber would not have changed his prescribing decision – so one out of three was not enough to win the day.