United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER GRANTING MOTION TO DISMISS, ECF 8,
AND TERMINATING CASE.
M. ROSE UNITED STATES DISTRICT JUDGE
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.
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.
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).
has moved the Court pursuant to Fed.R.Civ.P. 12(b)(6) to
dismiss the complaint. ECF 8.
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.
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.
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.
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
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