Rheinfrank et al v. Abbott Laboratories Inc. et al

Filing 357

ORDER granting in part and denying in part 348 Motion for Judgment as a Matter of Law. Signed by Judge Susan J. Dlott. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Rheinfrank, et al.,
Case No. 1:13-cv-144
Plaintiffs,
Judge Susan J. Dlott
v.
Abbott

Inc., et al.,

Order Granting in Part and Denying in
Part Defendants' Rule 50(a) Motion for
Judgment as a Matter of Law

Defendants

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liability case under Ohio law arising from Plaintiff Pamela Rheinfrank's

Currently pending

the Court is Defendants' Rule 50( a) Motion for Judgment as a Matter
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T AND DENIED IN PART.

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ST

of Civil Procedure 50(a) provides for judgment as a matter oflaw (which

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directed verdict). This Rule states:

.,..u·.,p• as Matter of Law.

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a party has been fully heard on an issue during a jury trial and the court
that a reasonable jury would not have a legally sufficient evidentiary basis to
for the party on that issue, the court may:
the issue against the party; and

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"Depakote" refers to
s group of prescription drugs with the basic active ingredient valproic acid. Depakote
is also sometimes rPti>rrPrl to by the chemical names "valproic acid," "valproate," or "divalproex sodium."
Depakote is an
drug ("AED") that has been marketed by Abbott in the United States in some form
since 1978.

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(B) grant a motion for judgment as a matter of law against the party on a claim or
~efense that, under the controlling law, can be maintained or defeated only
fith a favorable finding on that issue.

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Fed. R. Civ. P. 50(~)(l)(A}-(B).
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The Supr~e Court has stated that in making this determination, "the court must draw all

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reasonable inferen¢es in favor of the nonmoving party, and it may not make credibility

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determinations or teigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

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133, 151 (2000). t e Supreme Court has instructed further, "the court should give credence to
the evidence favo+g the nonmovant as well as that 'evidence supporting the moving party that
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is uncontradicted ahd unimpeached, at least to the extent that the evidence comes from

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disinterested witnerses. "' !d. (citation omitted).
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II.

ANAL YSI~
Defendants move for judgment as a matter oflaw on breach of express warranty and

OPLA nonconfo,ance with representations, implied warranty, negligent design defect, strict
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liability and neglig~nt failure to warn, and punitive damages.
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A. Breach of Express Warranty and OPLA Nonconformance with Representations
The parties jdiverge over the issue of whether Plaintiffs may pursue a breach of express

warranty claim an1 a statutory claim for noncomformance with representations. Defendants
contend the former! has been codified and, as a result, no common law claim exists. Plaintiffs

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argue they may pufue both a breach of express warranty claim in common law and a statutory
failure to conform to representations claim under the OPLA.
Plaintiffs rely

In support of this argument,

prim~rily upon two cases, Lonzrick v. Republic Steel Corp., 6 Ohio St. 2d 227, 236

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(Ohio 1966) and wfzite v. DePuy, Inc., 129 Ohio App. 3d 472, 485 (Ohio App. 1998). Plaintiffs
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assert these cases ertablish that a common law breach of express warranty claim parallels but

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remains distinct fr4m an OPLA nonconformance with representations claim. The Court is not

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persuaded that thesie cases demonstrate that a separate breach of express warranty claim exists at

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common law. Rat1er, the claim has been subsumed by the statutory claim codified at Ohio Rev.
Code§ 2307.77. qervelli v. Thompson/Center Arms, 183 F. Supp. 2d 1032, 1045 (S.D. Ohio
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2002) ("In Ohio, tlie common law claim for breach of express warranty has been codified and is

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found at R.C. § 23~77.77[.]"). As such, Defendants' Motion on Plaintiffs' breach of express
warranty claim wilt be GRANTED.

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With respeqt to Plaintiffs' nonconformance with representations statutory claim,
Defendants' Motioh will be DENIED, as the Court finds that a reasonable jury would have a

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legally sufficient e"fidentiary basis to find for Plaintiffs on this claim.

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B. Implie4 Warranty Claims
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Defendantslmove for judgment as a matter of law on Plaintiffs' implied warranty claims,
which have been

p~ as implied warranty of merchantability and implied warranty of fitness for
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a particular purpos~. Defendants argue there is no implied warranty for fitness for a particular

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purpose claim separate and apart from an implied warranty and/or implied warranty of

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merchantability cl~m. The Court does not find persuasive the law submitted by the Plaintiffs to
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the Court in

suppo~ oftheir position that these two claims exist separately in common law.

The

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cases cited by Plair)tiffs to support the proposition that an implied warranty for fitness for a

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particular purpose flaim exists separately from an implied warranty for merchantability claim
mention the claim ~ passing but provide no guidance as to its viability. See Shorter v.
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App. 3d 608, 616 (Ohio App. 2008) (noting that implied warranty of
Neapolitan, 179
fitness for a
analysis);

purpose generally arises out of tort for purposes of a statute oflimitations
v. Carborundum Co., 1983 WL 4345, at *3 (Ohio App. 1983) (mentioning

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.-v•J--~ .• ..,..,

of fitness for a

was pursuing several claims, including a breach of implied warranty

use). Accordingly, the Court does not find that an implied warranty of

fitness for a

purpose exists separate from an implied warranty for merchantability

claim.
Turning to

claim, Ohio courts have found that there is virtually no distinction

between an Ohio "11<4'"'""~ claim for design defect and the common law claim for breach of
re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d

implied warranty.
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13) (applying Ohio law) (stating the tortious breach of warranty claim is

838, 853 (6th Cir.

as strict liability or breach of implied warranty). For the reasons expounded

also known in

its ruling on Plaintiffs' strict liability design defect claim therefore extend
to Plaintiffs'

"warranty of merchantability claim. See Rheinfrank v. Abbott Labs., Inc.,

u· ............

F. Supp. 3d---, 2015 WL No. 5836973, at *5-6 (S.D. Ohio Oct. 2, 2015)
reconsideration of summary judgment). Accordingly, the Court will

(order on motion

GRANT ..............................,' Motion with respect to Plaintiffs' implied warranty claims.
,'l"-""' Design, Strict Liability Failure to Warn, Negligent Failure to Warn,

,._ 119,...119

to warn, negligent

to warn, and punitive damages claims, the Court finds that a reasonable

jury would have a

sufficient evidentiary basis to find for Plaintiffs on those issues.

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III.

IN PART.

Judge Susan J. Dlott
United States District Co

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