The opinion of the court was delivered by: Judge Gregory L. Frost
Presently before the Court for consideration is a motion for summary judgment filed by Defendants Meridian Medical Technologies, Incorporated and King Pharmaceuticals, Incorporated ("Defendants"). (Doc. # 49). Defendants move for summary judgment on Plaintiff Mohamed Hisam Najib's ("Plaintiff") remaining claims. Id. Plaintiff filed a memorandum in opposition to the Defendants' motion (Doc. # 50) and the Court did not permit a reply. (Doc. # 48). For the reasons that follow, the Court DENIES the motion. (Doc. # 49).
Plaintiff is an Ohio resident. He has asthma and his doctor prescribed epinephrine for Plaintiff to use when he suffered asthma attacks. Specifically, Plaintiff's doctor prescribed the EpiPen, which is a self-contained auto-injectable unit containing one dose of epinephrine.
Defendant Meridian's principle place of business is in Maryland. Meridian manufactures the EpiPen. Defendant King purchased Meridian in 2003. As such, Meridian is a wholly owned subsidiary of Defendant King, and King is Meridian's successor in interest. King's principle place of business is in Tennessee.*fn1
On April 26, 1997, Plaintiff suffered an asthma attack.*fn2 He removed the EpiPen from its packaging and Campbell unsuccessfully attempted to remove the gray cap. (Campbell Dep. 19, 23, 24).Campbell had previously read the directions for how to use the EpiPen and had seen Plaintiff use the EpiPen on himself. Id. at 13, 19, 23, 24. Campbell then gave the EpiPen to Plaintiff and he was ultimately able to get the cap off. Id. at 24. However, when the cap came off, the EpiPen "just kind of like exploded. The gray cap came off, but just like everything fell apart at that point." Id. at 24. According to Campbell, the "needle went like stabbing into the floor, the title [sic] floor. I remember--I can remember just kind of sticking up from the floor, bent. I know the tubing just kind of went flying across the room." Id. at 25. The vial containing the epinephrine was connected to the bent needle. Id. at 26-27. Thus, Plaintiff was left holding nothing. Id. at 28.
Plaintiff unsuccessfully attempted to inject the epinephrine by stabbing himself with the bent needle. Id. at 30. Plaintiff then passed out. Id. Campbell called 911 and began giving Plaintiff mouth-to-mouth resuscitation for about seven (7) minutes before the paramedics arrived. Id. at 30-36. The paramedics transported him to a local hospital by ambulance. Id. at 39-40. When Campbell returned home after the incident, she was unable to find all of the EpiPen's components and she assumed that the paramedics had disposed of them. (Campbell Dep. 55). Campbell testified in her deposition that she did, and does, not know what happened to the components of the EpiPen. Id.
Plaintiff filed suit in state court in 1999, alleging that as a direct and proximate result of the EpiPen's failure, he suffered debilitating injuries as well as emotional distress and incurred substantial medical bills. (Doc. # 1; Doc. # 29 at 1). Plaintiff dismissed that case and subsequently re-filed his action in state court within the one-year filing deadline. (Doc. # 29 at 1). Defendants then removed the action to this Court. (Doc. # 1).
Plaintiff's current Complaint is essentially the same as his first, and he asserts the following common law or state law claims: (1) negligent design, manufacture, failure to warn, failure to provide clear instructions; (2) defect in manufacture or construction under Ohio Revised Code § 2307.74; (3) conformance to representation under Ohio Revised Code § 2307.77; (4) supplier liability under O.R.C. § 2307.78; and (5) breach of the implied warranty of merchantability. Id.
Defendants moved for full summary judgment, and the Court granted that motion on April 25, 2005. (Doc. # 41). Plaintiff appealed that decision, and the Sixth Circuit affirmed this Court's ruling in part and reversed it in part. (Doc. # 45). In particular, the Sixth Circuit affirmed the Court's dismissal of Plaintiff's supplier liability and negligence claims but reversed the Court's decision on Plaintiff's remaining claims. (Doc. # # 45, 46). The Sixth Circuit remanded those remaining claims to this Court for further consideration. Id.
Defendants now move the Court for summary judgment on Plaintiff's claims for products liability, failure to conform to representation under Ohio Revised Code § 2307.77, and breach of the implied warranty of merchantability. (Doc. # 49). Because the parties have completed briefing the matter, the Court now turns to an examination of that motion.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie ...