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McManus v. Smith & Nephew, Inc.

United States District Court, S.D. Ohio, Western Division, Dayton

January 9, 2020

Isaac McManus, Plaintiff,
v.
Smith & Nephew, Inc., et al., Defendants.

          ENTRY AND ORDER GRANTING MOTION TO DISMISS, ECF 8, AND TERMINATING CASE.

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Smith & Nephew, Inc.'s Motion to Dismiss. ECF 8. Defendant's motion asks the Court to dismiss the complaint in its entirety. Because Plaintiff's common law and equitable claims are preempted by the Ohio Product Liability Act, (“OPLA”), Ohio Rev. Code § 2307.71, et seq., and because the statute of limitations has run on Plaintiff's OPLA claims, Defendant's motion to dismiss will be granted.

         I. Background

         On December 18, 2013 Plaintiff Isaac McManus underwent surgery for a total left knee arthroplasty at the Jewish Hospital, Mercy Health Partners in Cincinnati, Ohio. Complaint at ¶16. Complaint at ¶15. Dr. Frank R. Noyes, M.D implanted Defendant's knee replacement product, the Journey system. See Complaint at ¶ ¶16, 17. On August 16, 2016, allegedly due a failure of the device, Dr. Thomas Cook performed a revision surgery at Good Samaritan Hospital in Dayton Ohio. Complaint at ¶ 21.

         On February 1, 2019, Plaintiff filed a complaint against Defendant in the Montgomery County Court of Common Pleas asserting claims of Negligence (Count I), liability for defective design pursuant to the Ohio Product Liability Act, Ohio Rev. Code. §§ 2307.71-80 (Count II), Defective Manufacture under the Ohio Product Liability Act (Count III), Failure to Warn under the Ohio Product Liability Act (Count IV), Breach of Express Warranty (Count V), Breach of Implied Warranty (Count VI), Fraudulent Misrepresentation (Count VII), Fraudulent Concealment (Count VIII), Negligent Misrepresentation (Count IX), Unjust Enrichment (Count X), and a claim for punitive damages (Count XI).

         Defendant has moved the Court pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint. ECF 8.

         II. Legal Standard

         When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Shirk v. Fifth Third Bancorp, No. 05-cv-049, 2008 U.S. 3 Dist. LEXIS 108089, at *15 (S.D. Ohio Sep. 26, 2008). A complaint need only give "fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Id.

         Rule 8 of the Federal Rules of Civil Procedure provides in part that "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). When considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a claim, a court must determine whether the complaint "contain[s] sufficient factual matter, when accepted as true, 'state[s] a claim to relief that is plausible on its face.'" Reilly v. Meffe, 6 F.Supp.3d 760, 768 (S.D. Ohio 2014); (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly, 550 U.S. at 555-56.

         A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Reilly v. Meffe, 6 F.Supp.3d 760, 769 (S.D. Ohio 2014). When the complaint does contain well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Although "[s]pecific facts are not necessary," Erickson, 551 U.S. at 93, and even though Rule 8 "does not impose a probability requirement at the pleading stage," Twombly, 550 U.S. at 556, the factual allegations must be enough to raise the claimed right to relief above the speculative level and to create a reasonable expectation that discovery will reveal evidence to support the claim. Iqbal, 556 U.S. at 4 678-79; Twombly, 550 U.S. at 555-56. This inquiry as to plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Meffe, 6 F.Supp.3d at 768-69.

         III. Analysis

         Defendant asserts Plaintiff's claims for Negligence, Breach of Express Warranty, Breach of Implied Warranty, Fraudulent Misrepresentation, Fraudulent Concealment, Negligent Misrepresentation, and Unjust Enrichment, are product liability claims which have been abrogated by the Ohio Product Liability Act (“OPLA”), codified in the Ohio Revised Code at § 2307.71 et seq. The current version of the OPLA was enacted on April 7, 2005 and was “intended to abrogate all common law product liability claims or causes of action.” Ohio Rev. Code § 2307.71(B). As defined within the OPLA:

“Product liability claim” means a claim that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; (c) Any failure of that product to conform to any relevant representation or warranty.

         Ohio Rev. Code § 2307.71(A)(13). In broadly defining “product liability claim, ” the Ohio General Assembly mandated that all claims arising from the design, manufacturing, marketing, warning, warranty or representation of a product are to be treated as “product liability claims” exclusively defined, remedied, and governed by the OPLA. See Beckemeyer v. Gelco Corp., No. 1:17CV695, 2019 WL 952733, at *2 (S.D. Ohio Feb. 27, 2019) citing Krumpelbeck v. Breg, Inc., 491 Fed. App'x 713, 715 (6th Cir. 2012) (“The OPLA expressly abolished all common law product liability claims.”). As a result, the Court is guided by the essential nature of the ...


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