Today’s case, Clayton v. Zimmer United States, Inc., 2025 U.S. Dist. LEXIS 213345 (S.D. Ohio Oct. 29, 2025), marks two weeks in a row where we discuss good (for the defense) court decisions coming out of Ohio.  Meanwhile, in our non-blogging-but-actually-paying part of our job, we’re on something like our fifth week in a row fighting against plaintiffs in several cases who are doing everything possible to stay out of federal courts.  Why do some plaintiff lawyers shun the wisdom, life-tenure, non-elected, well-resourced majesty of federal courts?  We don’t mean to be unkind, but we take this fear of the federal to say nothing good about those lawyers or their cases.

In Clayton, the plaintiff was an Ohio citizen who claimed that an implanted knee device fractured and caused her serious injuries. She filed suit in Ohio state court under the Ohio Products Liability Act (the OPLA) against the manufacturing companies (not Ohio citizens) and a local supplier called Mid-Ohio which was – you guessed it – an Ohio citizen.  The defendants removed the case to federal court, invoking diversity jurisdiction. Obviously, at first blush it looked like Mid-Ohio’s presence defeated diversity. But the defendants argued that the federal court should retain jurisdiction over the case because Mid-Ohio was fraudulently joined. The plaintiff’s response was that Mid-Ohio was legitimately in the case because it was derivatively liable as a supplier of the device implanted into her knee.

The federal court began its analysis by reminding us that fraudulent joinder is a pretty tough test for defendants to meet.  There must be “no colorable cause of action” against the non-diverse party. It helps the removing party that it “can present evidence beyond the pleadings to make this showing,” but it hurts the removing party that the standard for fraudulent joinder is “akin to that of a Rule 12(b)(6) motion to dismiss,” with perhaps even more deference to the plaintiff. 

As we have seen more than once, Ohio’s substantive product liability law, the OPLA, is remarkably sane. Under that law, the plaintiff’s claim against the local supplier could not survive, even under the loose fraudulent joinder standard. Ohio’s product liability statute limits “derivative” liability to when “the supplier in question is owned, or when it supplied that product, was owned, in whole or in part, by the manufacturer of that product[.]” Ohio Rev. Code § 2307.78(B)(4). No such ownership interest existed here, so the fraudulent joinder standard was met and, given this quirk of Ohio law, removal to federal court was successful.  

The plaintiff tried to support her claim against the local supplier by alleging that her surgeon spoke to a “local Zimmer representative” about the device and that Mid-Ohio is listed on the Zimmer website. But Mid-Ohio submitted undisputed evidence that it “does not own, is not owned by, nor has it ever been owned by Zimmer US, Inc., Zimmer Biomet Holdings, Inc., or Zimmer, Inc.” Accordingly, the federal court found that the plaintiff failed to assert a colorable claim against Mid-Ohio and that Mid-Ohio was fraudulently joined in this action.

In our eyes, the OPLA is just as undefeated as the Ohio State Buckeye football team.