Cawley v. Eastman Outdoors, Inc. et al

Filing 42

Opinion and Order signed by Judge James S. Gwin on 10/17/14. The Court grants defendant's motion for summary judgment as to plaintiff's claims for breach of warranty, strict liability, negligence, and gross negligence in Counts Two through Five of his complaint. The Court grants in part and denies in part defendant's motion as to plaintiff's claim for product liability in Count One of his complaint. Plaintiff may proceed on his claim of manufacturing defect, but not on his claims of design defect, inadequate warning, or failure to conform to representations. The Court denies defendant's motion to dismiss plaintiff's claim for punitive damages. Finally, the Court denies defendant's motion to impose a statutory damages cap. (Related Doc. 23 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
TREVOR CAWLEY,
:
:
Plaintiff,
:
:
vs.
:
:
EASTMAN OUTDOORS, INC.,
:
ET AL.,
:
:
Defendants.
:
:
-------------------------------------------------------

CASE NO. 1:14-CV-00310

OPINION & ORDER
[Resolving Doc. 23]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On October 8, 2012, Plaintiff Trevor Cawley was injured by an allegedly defective arrow
distributed by Defendant Eastman Outdoors, Inc. Defendant moves for summary judgment.1/ In
support of the motion, Defendant primarily argues that Plaintiff has not shown that the arrow had
any defect that was the proximate cause of Plaintiff’s injury. Defendant further argues that Plaintiff
has no facts to support his claim for punitive damages, and that in any case damages should be
subject to a statutory cap. Plaintiff opposes.2/
For the following reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s motion.
I. Background
A. Plaintiff’s Injury and Recovery

1/

Doc. 23.
Doc. 29.

2/

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On October 8, 2012, Plaintiff Trevor Cawley was injured while practicing archery with a
friend in North Ridgeville, Ohio.3/ Plaintiff was shooting Wolverine 6070 carbon fiber arrows that
he had bought in 2010 and fired on a weekly basis for approximately two years.4/ The arrows had
been manufactured by Shin Kwang Corporation, a South Korean company. Defendant Eastman
Outdoors, Inc. distributed the arrows in the United States.5/ One of the arrows shattered upon release
and pierced Plaintiff’s left hand and thumb.6/
Plaintiff Cawley immediately sought medical attention at a nearby emergency room.7/ Dr.
Stephen Evans, a hand and microsurgery specialist, removed the arrow from Plaintiff’s hand, along
with several large carbon fibers that had splintered from the shaft.8/ A few days later, Dr. Evans
performed a follow-up surgery to remove additional “hundreds of pieces of these splintered carbon
fiber arrow fragments” and to repair damage to Plaintiff’s ligaments and tendons.9/
According to Dr. Evans, Plaintiff has since “healed quite well, given the significant nature
and location of his injury.”10/ Plaintiff has been able to return to work as a petty officer in the United
States Coast Guard, which includes manual work such as tying rope lines.11/ Nevertheless, Plaintiff
has lasting injuries to his hand, including a scar, decreased range of motion, diminished grip strength,
and ongoing pain.12/ In addition, Dr. Evans was unable to remove all of the minuscule carbon fiber

3/

Doc. 23-1 at 6–7.
Id.
5/
Id. at 2.
6/
Id. at 6–7.
7/
Doc. 23-7; Doc. 29-11.
8/
Doc. 23-7; Doc. 29-11.
9/
Doc. 29-11.
10/
Id.
11/
Doc. 23-3; Doc. 29-1.
12/
Doc. 23-3; Doc. 29-1; Doc. 29-11.
4/

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fragments from Plaintiff’s hand, and the remaining fragments sometimes extrude through the skin
of Plaintiff’s hand as they migrate to the surface.13/ Plaintiff also faces the possibility of future
ailments such as arthritis.14/
B. Plaintiff’s Claims
On December 27, 2013, Plaintiff sued Defendant in Ohio state court for product liability,
breach of warranty, strict liability, negligence, and gross negligence.15/ On February 13, 2014,
Defendant removed the case to this Court based on diversity jurisdiction.16/
Plaintiff claims the arrow shattered because of a manufacturing or design defect. Plaintiff
bought about a dozen Wolverine 6070 arrows from Wal-Mart in 2010.17/ All of his arrows came
from the same Shin Kwang batch 040708. As an avid archer, he shot them approximately once a
week for the two years leading up to his injury. Plaintiff’s expert examined both the arrow that
injured Plaintiff and another arrow that Plaintiff had been using that day that did not shatter.18/ The
expert says that he observed no external markings on either arrow that suggested Plaintiff’s use had
caused the arrow to shatter.
Instead, the expert says that his microscopic analysis of cross-sections of the arrows show
defects in the carbon fiber attributable to the manufacturing process that compromised the structural
integrity of the arrows. In addition to this defect, Plaintiff says Defendant was grossly negligent for
failing to inspect the arrows itself and instead solely relying on Shin Kwang’s quality controls.

13/

Doc. 23-3; Doc. 29-1; Doc. 29-11.
Doc. 29-11.
15/
Doc. 1-1.
16/
Doc. 1.
17/
See Doc. 29-1; Doc. 23-3.
18/
See generally Doc. 29-6; Doc. 29-7.
14/

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Defendant disputes Plaintiff’s allegations. According to Defendant, there was nothing
inherently wrong with the arrows, and it was instead Plaintiff’s longtime use of the arrows and
failure to follow proper safety protocols that led to his injury. Each arrow had a warning printed on
it advising the user to visit www.safearrow.com, a website that gives instructions and warnings for
safe use. Those instructions advise the user to inspect the arrow for any scratches, gouges, dents,
cracks, or other similar damage that could compromise the integrity of the arrow, and to not fire it
if any are detected.
Defendant’s expert analysis suggests that Plaintiff’s frequent firing of the arrows over two
years damaged them.19/ Defendant says the injury was Plaintiff’s fault because he continued to fire
the arrows despite obvious external damage such as dents and scratches. Furthermore, Defendant
says that both it and Shin Kwang had adequate quality control measures in place to prevent against
defective arrows being distributed.
Plaintiff admits he saw the instruction to visit the website that was printed on the arrow and
says he inspected his arrows before each use.20/ In fact, although Plaintiff initially purchased about
a dozen arrows in 2010, by 2012 he had discarded all but four arrows due to damage. He says he
performed the suggested inspection on the day of his injury before firing the arrows, and saw no
damage that would have made them unsafe to shoot. Nevertheless, Plaintiff claims the warning was
inadequate because it did not adequately describe the dangers of using the arrows, including the
potential for “explosive failure.”
II. Legal Standard

19/

See generally Doc. 33-1; Doc. 33-2.
See Doc. 29-1; Doc. 23-3.

20/

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Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.”21/ The moving
party must demonstrate that there is an absence of a genuine dispute as to a material fact entitling
it to judgment.22/ Once the moving party has done so, the non-moving party must set forth specific
facts in the record—not its allegations or denials in pleadings—showing a triable issue.23/ The
existence of some doubt as to the material facts is insufficient to defeat a motion for summary
judgment.24/ But the Court will view the facts and all reasonable inferences from those facts in favor
of the non-moving party.25/
III. Analysis
There are four issues raised in this motion for summary judgment that will be addressed in
succession. The Court first decides whether Plaintiff’s common law claims are abrogated by the
Ohio Products Liability Act. The Court finds that Plaintiff may not proceed on these claims. The
second issue is whether Plaintiff has demonstrated a genuine issue of material fact that will allow
his product liability claim to proceed to trial. The Court finds that Plaintiff may proceed only on his
manufacturing defect claim. The third issue is whether the jury may decide whether Plaintiff can
recover punitive damages. The Court finds that it is premature to preclude the award of punitive
damages at this phase. The fourth issue is whether the Court should impose a cap on damages

21/

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008).
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
23/
See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
24/
Matsushita, 575 U.S. at 586.
25/
Thomas v. Cohen, 453 F.3d 657, 660 (6th Cir. 2006) (quoting Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563
(6th Cir. 1997)).
22/

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Plaintiff may recover. The Court finds that whether Plaintiff’s injury is a “permanent and substantial
physical deformity” that is exempted from the statutory damages cap is a question for the jury.
A. Claims Abrogated by OPLA
Before proceeding to the merits of Plaintiff’s product liability claim, the Court addresses
Plaintiff’s claims that must be dismissed because they are preempted by the Ohio Products Liability
Act (OPLA).26/ The OPLA is “intended to abrogate all common law product liability claims or
causes of action.”27/ All of Plaintiff’s claims in this case sound in product liability as defined in the
OPLA, as they seek to recover damages from a manufacturer or supplier for physical injury based
on defective design, manufacture, warning, or failure to conform to warranty.28/ Thus, any common
law claims must be dismissed.
Defendant says that Count Four of Plaintiff’s complaint claiming common law negligence
fails because it is abrogated by the OPLA and therefore unavailable in this product liability action.29/
Plaintiff agrees.30/ The Court therefore GRANTS Defendant’s motion for summary judgment as to
this claim.31/
The OPLA also abrogates Plaintiff’s claims for breach of warranty, strict liability, and gross
negligence contained in Counts Two, Three, and Five of his complaint. The parties dispute whether
Defendant has moved for summary judgment on these claims.32/ Although Defendant’s motion is

26/

Ohio Rev. Code §§ 2307.71–2307.80.
Ohio Rev. Code § 2307.71(B).
28/
See Ohio Rev. Code § 2307.71(A)(13).
29/
Doc. 23-1 at 14 (citing Ohio Rev. Code §§ 2307.71(A)(13), 2307.71(B)).
30/
Doc. 29 at 12.
31/
See, e.g., Evans v. Hanger Prostehetics & Orthotics, Inc., 735 F. Supp. 2d 785, 795–96 (N.D. Ohio 2010)
(dismissing common law negligence claims as preempted by the OPLA).
32/
Compare Doc. 29 at 12, with Doc. 33 at 3–5.
27/

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unclear on this issue, Defendant did move for summary judgment on Plaintiff’s statutory product
liability claims.33/ The common law claims for breach of warranty, strict liability, and gross
negligence are directed at the same underlying conduct and are subject to the same factual defenses.
Because they overlap with the product liability claim, the Court would have to address them anyway
in order to resolve this motion.
Because the OPLA bars Plaintiff’s claims for common law breach of warranty (both express
and implied),34/ strict liability,35/ and gross negligence,36/ the Court GRANTS summary judgment for
Defendant as to these claims.
B. Product Liability Claim
Defendant is the supplier of the allegedly defective arrow, not its manufacturer.37/ Defendant
purchases its arrows from Shin Kwang, a South Korean company, and then distributes them under
Defendant’s trade name of “Carbon Express.”38/ Defendant may thus be liable for compensatory
damages “as if it were the manufacturer of th[e] product” because it has “marketed th[e] product
under its own label or trade name.”39/
In his complaint, Plaintiff offers four distinct theories of Defendant’s liability under the
OPLA. The Court addresses each in turn.
1. Manufacturing Defect
33/

Doc. 23-1 at 11–16.
See, e.g., Miles v. Raymond Corp., 612 F. Supp. 2d 913, 923–24 (N.D. Ohio 2009).
35/
See, e.g., Wimbush v. Wyeth, 619 F.3d 632, 637 (6th Cir. 2010) (“Strict liability for manufacturers and
suppliers is codified by the Ohio Products Liability Act . . . .”).
36/
See, e.g., Jones v. Staübli Motor Sports Div. of Staübli Am. Corp., 897 F. Supp. 2d 599, 616 (S.D. Ohio
2012). Despite not being able to bring a claim for gross negligence, Plaintiff may nevertheless be able to obtain punitive
damages under the OPLA. See infra Section III.C.
37/
Doc. 19 at 2.
38/
Doc. 29 at 2.
39/
Ohio Rev. Code § 2307.78(B)(7).
34/

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Under Ohio law, “[a] product is defective in manufacture or construction if, when it left the
control of its manufacturer, it deviated in a material way from the design specifications, formula, or
performance standards of the manufacturer, or from otherwise identical units manufactured to the
same design specifications, formula, or performance standards.”40/
Plaintiff’s expert, Dr. Scott Beckwith, examined both the arrow that shattered and injured
Plaintiff,41/ and another arrow from the same batch that Plaintiff had used for about the same amount
of time42/. He observed that the arrows contained a large amount of “void” content—essentially
bubbles in the carbon fiber that “impair[] the [arrow’s] strength for its intended use.”43/ Based on
his observations, he concluded that the arrow that injured Plaintiff shattered because there “was a
defect in the [arrow’s] manufacturing and/or a defect in the manufacturing process . . . .”44/
Defendant’s experts, Dr. Michelle Vogler and George Saunders, disagree with this
assessment. They say there was nothing inherently wrong with the arrow. Instead, they point to
observable damage on the arrows that they attribute to Plaintiff’s repeated use, and argue that it was
this damage that caused the arrow to shatter.45/
Accepting all inferences in Plaintiff’s favor, there is a general issue of material fact as to
whether there was a manufacturing defect in the arrow that injured Plaintiff. Dr. Beckwith’s expert
report would allow the jury to decide that the void content of the arrow constitutes a manufacturing

40/

Ohio Rev. Code § 2307.74.
Doc. 29-7.
42/
Doc. 29-6.
43/
Doc. 29-4 at 2.
44/
Id.
45/
See generally Doc. 33-1; Doc. 33-2.
41/

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defect and this defect caused the arrow to shatter.46/ Defendants will certainly be able to counter with
their experts’ reports and suggest another theory. But in this battle of experts, it is the jury’s job to
decide between the conflicting opinions over what caused Plaintiff’s injury.
Because there is a genuine issue of material fact as to whether the arrow that injured Plaintiff
had a manufacturing defect, Defendant’s motion for summary judgment as to this claim is DENIED.
2. Design Defect
Under Ohio law, “a product is defective in design . . . if, at the time it left the control of its
manufacturer, the foreseeable risks associated with its design . . . exceeded the benefits associated
with that design . . . .”47/ The statute gives several factors that can be used to balance the foreseeable
risks against the benefits. The foreseeable risks may be determined by factors including:
(1) The nature and magnitude of the risks of harm associated with that design or
formulation in light of the intended and reasonably foreseeable uses, modifications,
or alterations of the product;
(2) The likely awareness of product users, whether based on warnings, general
knowledge, or otherwise, of those risks of harm;
(3) The likelihood that design or formulation would cause harm in light of the
intended and reasonably foreseeable uses, modifications, or alterations of the
product;
(4) The extent to which that design or formulation conformed to any applicable
public or private product standard that was in effect when the product left the control

46/

See, e.g., Shaw v. Toyotomi Am., Inc., 654 N.E.2d 1337, 1340 (Ohio Ct. App. 1995).
Ohio Rev. Code. § 2307.75(A).

47/

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of its manufacturer;
(5) The extent to which that design or formulation is more dangerous than a
reasonably prudent consumer would expect when used in an intended or reasonably
foreseeable manner.48/
The benefits, meanwhile, may be determined by factors including:
(1) The intended or actual utility of the product, including any performance or safety
advantages associated with that design or formulation;
(2) The technical and economic feasibility, when the product left the control of its
manufacturer, of using an alternative design or formulation;
(3) The nature and magnitude of any foreseeable risks associated with an alternative
design or formulation.49/
Plaintiff’s expert, Dr. Beckwith, observed flaws in the carbon fiber of the arrows and
concluded that there “was a defect in the [arrow]’s manufacturing and/or a defect in the
manufacturing process . . . .”50/ He opines that the defects he observed are a result of a manufacturing
process that “does not reflect good quality control” and that Plaintiff’s injury was the result of a
“product-manufacturing defect.”51/
But Dr. Beckwith offers no opinion or evidence as to whether the risks associated with the
arrow as designed outweigh its benefits. And Plaintiff offers no evidence from any other source that
would allow a jury to find that the foreseeable risks of the arrow’s design outweigh its benefits.

48/

Ohio Rev. Code § 2307.75(B).
Ohio Rev. Code § 2307.75(C).
50/
Doc. 29-4 at 2.
51/
Doc. 29-6 at 17.
49/

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Thus, it is not evident that there is anything defective about the arrow’s design.
Because Plaintiff has failed to present evidence to create a genuine issue of material fact on
his claim for design defect, Defendant’s motion for summary judgment is GRANTED.
3. Inadequate Warning
Under Ohio law,
(1) [A product] is defective due to inadequate warning or instruction at the time of
marketing if, when it left the control of its manufacturer, both of the following
applied:
(a) The manufacturer knew or, in the exercise of reasonable care, should have
known about a risk that is associated with the product and that allegedly
caused harm for which the claimant seeks to recover compensatory damages;
(b) The manufacturer failed to provide the warning or instruction that a
manufacturer exercising reasonable care would have provided concerning that
risk, in light of the likelihood that the product would cause harm of the type
for which the claimant seeks to recover compensatory damages and in light
of the likely seriousness of that harm.52/
“Courts have restated the above statutory language as requiring three elements ‘each of which must
be satisfied: (1) a duty to warn against reasonably foreseeable risks; (2) breach of this duty; and (3)
an injury that is proximately caused by the breach.’”53/ “A product is not defective due to lack of
warning or instruction or inadequate warning or instruction . . . about an open and obvious risk or

52/

Ohio Rev. Code § 2307.76(A).
Monroe v. Novartis Pharm. Corp., No. 1:12-CV-00746, 2014 WL 3378345, at *8 (S.D. Ohio July 10, 2014)
(quoting Graham v. Am. Cyanamid Co., 350 F.3d 496, 514 (6th Cir. 2003)).
53/

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a risk that is a matter of common knowledge.”54/
Although there is not an extensive written warning on the arrow itself, the instruction printed
on the arrow to visit the www.safearrow.com website may satisfy Defendant’s duty to warn.
Warnings contained in an instruction manual can satisfy the duty to warn.55/ The Court sees no
material difference between the warnings that could have been contained in a written manual and
the instruction, printed on the arrow, directing the user to the website.
As for the website itself, Plaintiff claims that the warning was inadequate because the video
at www.safearrow.com does not specify that a carbon fiber arrow can explosively fail even if it
passes the recommended inspections.56/ Plaintiff admits, however, that he saw the instructions on
the arrow, visited the website, watched the video, and followed the instructions to check his arrow
for damage prior to shooting.57/
Plaintiff has provided no evidence that the allegedly inadequate warning was the proximate
cause of his injury. He has not alleged that he would have changed the way he used the arrows had
the warning he requests been given.58/ Furthermore, “[t]here is no duty to warn of a danger of which
the user is aware.”59/ The www.safearrow.com website specifically says that “[f]iring a damaged
arrow can result in misfiring, fracturing, or splintering in a manner that could result in serious injury
or death to the user or anyone in close proximity.” Although it does not specifically say that this type
of failure could occur absent damage to the arrow, Plaintiff had notice that the type of injury he

54/

Ohio Rev. Code § 2307.76(B).
E.g., Freas v. Prater Constr. Corp., 573 N.E.2d 27, 30–31 (Ohio 1991).
56/
Doc. 29 at 12–13.
57/
Doc. 23-3 at 14, Doc. 29-1.
58/
See Freas, 573 N.E.2d at 31.
59/
Roberts v. Performance Site Mgmt., Inc., No. 03AP-784, 2004 WL 1196140, at *6 (Ohio Ct. App. June 1,
55/

2004).

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suffered could happen.
Because Plaintiff has not shown a genuine issue of material fact, Defendant’s motion for
summary judgment as to this claim is GRANTED.
4. Failure to Conform to Representations
Under Ohio law, a product is defective if it “did not conform, when it left the control of the
supplier . . . to a representation made by that supplier, and that representation and the failure to
conform to it were a proximate cause of harm . . . even though the supplier did not act fraudulently,
recklessly, or negligently in making the representation.”60/ A “representation” is an “express
representation of a material fact concerning the character, quality, or safety of a product.”61/ A
general warranty is not an express representation.62/
Here, Plaintiff offers no evidence of any representation made by Defendant. At best,
Plaintiff’s claim for breach of warranty alleges that Defendant expressly and impliedly warranted
that the arrows were “safe for ordinary and foreseeable use.”63/ This type of general warranty is not
a representation under the statutory definition. Thus, even if taken as true, this allegation would not
create a genuine issue of material fact on his claim for failure to conform to representation.
Defendant’s motion for summary judgment as to this claim is therefore GRANTED.
C. Punitive Damages
In his product liability claim, Plaintiff seeks both compensatory and punitive damages for his

60/

Ohio Rev. Code § 2307.78(A)(2); see also Ohio Rev. Code § 2307.77 (same rule for manufacturer).
Ohio Rev. Code § 2307.71(A)(14).
62/
See Saraney v. TAP Pharm. Prods., Inc., No. 1:04-CV-02026, 2007 WL 148845, at *8 (N.D. Ohio Jan. 16,
61/

2007).
63/

Doc. 18 at 6.

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injury.64/ Under the OPLA, punitive damages may only be awarded if Plaintiff “establishes, by clear
and convincing evidence, that harm for which [he] is entitled to recover compensatory damages . . .
was the result of misconduct of the [Defendant] that manifested a flagrant disregard of the safety of
persons who might be harmed by the product in question.”65/
Plaintiff’s theory in support of punitive damages is that Defendant did not have adequate
procedures in place to inspect imported arrows for manufacturing defects before distributing them
for sale, or at least had not implemented such procedures when batch 040708 was imported.66/
Defendant disputes the factual basis for Plaintiff’s argument. Defendant says its employees visited
Shin Kwang to observe their quality control procedures, found them to be adequate, and have
substantially relied on them to guard against defective arrows being shipped.67/ Defendant further
asserts that it conducted additional inspections of some of the arrows that it imported.68/ Finally,
Defendant suggests that there was no reason for it to believe the arrows were being defectively
manufactured, as it has only been subject to three claims of defective arrows in the past ten years.69/
Whether punitive damages should be awarded is a question for the jury, though if the jury
awards punitive damages, the amount would be determined by the Court.70/ There is a genuine issue
of material fact as to Defendant’s liability for the alleged manufacturing defect that the jury must

64/

Plaintiff also asked for punitive damages under his claim for gross negligence. Doc. 18 at 8. This claim,
however, is barred by the OPLA and therefore dismissed. See supra Section III.A.
65/
Ohio Rev. Code § 2307.80(A).
66/
See Doc. 29 at 13–14.
67/
Doc. 33-4 at 2–3.
68/
Id.
69/
Doc. 23-1 at 16 n.4.
70/
Ohio Rev. Code § 2307.80(B).

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resolve before punitive damages could be awarded.71/ Furthermore, taking all inferences in favor of
Plaintiff, it is possible that Defendant was aware of potential problems with its arrows given the past
claims against it and yet did not implement adequate inspection procedures until 2009. Because
these issues exist, Defendant’s motion for summary judgment as to punitive damages is DENIED.
D. Statutory Damages Cap
Finally, Defendant requests that the Court cap the potential damages that Plaintiff can
recover.72/ Ohio law provides a damage cap for non-economic damages in tort actions to recover
damages for personal injury.73/ This cap does not apply, though, if Plaintiff has suffered a
“[p]ermanent and substantial physical deformity.”74/ “[S]carring may be so severe as to qualify as
a serious disfigurement.”75/
Plaintiff argues that a jury could find that the scar on his left hand and thumb, as well as other
external and internal deformities left as the result of the injury and subsequent surgeries, qualify him
for the exception.76/ Although Plaintiff and Defendant disagree about the severity of Plaintiff’s scar,
that is a question for the jury.77/ The Court would only reduce the award to the statutory damages cap
if the jury finds that Plaintiff’s scar does not qualify for the exception.78/ The Court therefore
DENIES Defendant’s motion to impose a damages cap at this stage.

71/

See Piskura v. TASER Int’l, Inc., No. 1:10-CV-248, 2013 WL 1329704, at *9–10 (S.D. Ohio Mar. 29, 2013);
Hertzfeld v. Hayward Pool Prods., Inc., No. L-07-1168, 2007 WL 4563446, at *10 (Ohio Ct. App. Dec. 31, 2007)
(“[T]he question of whether the issue of punitive damages reaches a jury is not properly disposed of where a genuine
issue of material fact exists at the summary judgment stage.”).
72/
Doc. 23-1 at 17–18.
73/
See Ohio Rev. Code § 2315.18(B).
74/
Ohio Rev. Code § 2315.18(B)(3)(a).
75/
Bransteter v. Moore, No. 3:09-CV-2, 2009 WL 152317, at *2 (N.D. Ohio Jan. 21, 2009).
76/
Doc. 29 at 14–16.
77/
See, e.g., Bransteter, 2009 WL 152317 at *2.
78/
Ohle v. DJO Inc., No. 1:09-CV-02794, 2012 WL 4505846, at *2 (N.D. Ohio Sept. 28, 2012).

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V. Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s motion for summary judgment
as to Plaintiff’s claims for breach of warranty, strict liability, negligence, and gross negligence in
Counts Two through Five of his complaint. The Court GRANTS IN PART and DENIES IN
PART Defendant’s motion as to Plaintiff’s claim for product liability in Count One of his complaint.
Plaintiff may proceed on his claim of manufacturing defect, but not on his claims of design defect,
inadequate warning, or failure to conform to representations. The Court DENIES Defendant’s
motion to dismiss Plaintiff’s claim for punitive damages. Finally, the Court DENIES Defendant’s
motion to impose a statutory damages cap.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: October 17, 2014

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