Smith et al v. Smith & Nephew, Inc.
Filing
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ORDER granting 5 Motion to Dismiss for Failure to State a Claim; plaintiffs; claims of breach of express warranty; negligence and violation of OCSPA and ODTPA are dismissed; plaintiff is granted leave to amend complaint 14 days from the entry of this Order. Signed by Judge Michael R. Barrett on 3/10/14. (ba1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Lori Smith, et al.,
Plaintiffs,
Case No. 1:13cv289
v.
Judge Michael R. Barrett
Smith & Nephew, Inc.,
Defendant.
OPINION & ORDER
This matter is before the Court upon Defendant Smith & Nephew’s Motion to
Dismiss. (Doc. 5.) Plaintiffs Lori and Todd Smith filed a Response in Opposition (Doc.
13) and Defendant filed a Reply (Doc. 15).
I.
BACKGROUND
Plaintiffs are husband and wife. (Doc. 1, ¶ 2.) Plaintiffs’ claims are based on the
Smith & Nephew “R3 Acetabular System with a metal liner components” (“MoM Hip
System”). The MoM Hip System was used to replace both of Plaintiff Lori Smith’s hips.
(Doc. 1, Complaint ¶ 31.) Plaintiffs claim the MoM Hip System is defective.
Plaintiffs bring claims for (1) product defect in manufacture and design under
Ohio Rev. Code §2307.74; (2) product defect in design or formulation under Ohio Rev.
Code § 2307.75; (3) product defect due to inadequate warning and/or instructions under
Ohio Rev. Code §2307.76; (4) product defect in the failure to conform to representations
under Ohio Rev. Code §2307.77; (5) breach of express warranty; (6) breach of implied
warranty; (7) negligence; (8) loss of consortium; and (ix) violations of the Ohio
Consumer Sales Practices Act and the Ohio Deceptive Trade Practices Act.
In their Motion to Dismiss, Defendant seeks to dismiss the following claims:
breach of express warranty (Fifth Cause of Action), breach of implied warranty (Sixth
Cause of Action), negligence (Seventh Cause of Action) and violations of the Ohio
Consumer Sales Practices Act (“OCSPA) and Ohio Deceptive Trade Practices Act
(“ODTPA”) (Ninth Cause of Action).
Defendant’s Motion does not address the
remainder of the claims.
Plaintiffs agree that their claims for breach of express warranty and negligence
are abrogated by the Ohio Product Liability Act (“OPLA”) and do not object to their
dismissal. Therefore, Plaintiffs’ claims for breach of express warranty and negligence
are DISMISSED.
However, Plaintiffs argue that their claims for breach of implied
warranty and for violations of the OCSPA and ODTPA should not be dismissed.
II.
ANALYSIS
A. Motion to Dismiss Standard
“In assessing a motion to dismiss under Rule 12(b)(6), this court construes the
complaint in the light most favorable to the plaintiff, accepts the plaintiff's factual
allegations as true, and determines whether the complaint ‘contain[s] sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’” Heinrich
v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (alteration in original). To properly state a
claim, a complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). "[T]o survive a motion to
dismiss, a complaint must contain (1) 'enough facts to state a claim to relief that is
plausible,' (2) more than 'a formulaic recitation of a cause of action's elements,' and (3)
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allegations that suggest a 'right to relief above a speculative level.'" Tackett v. M&G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). “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.” Iqbal, 556 U.S. at 678.
B. Ohio Products Liability Act
While Plaintiffs agree that their claims for breach of express warranty and
negligence are abrogated by the OPLA, they argue that their claim for breach of implied
warranty is grounded in the Uniform Commercial Code (“UCC”) and is therefore not
abrogated by the OPLA. Accord CCB Ohio LLC v. Chemque, Inc., 649 F.Supp.2d 757
(S.D.Ohio 2009) (“Plaintiffs' warranty claims can find a basis grounded in the Uniform
Commercial Code and therefore are not claims abrogated by the OPLA”).
However, Plaintiffs explain that their Complaint does not specifically cite to Ohio
Revised Code §1302.27, which is a part of Ohio’s codification of the UCC and provides
that “a warranty that the goods shall be merchantable is implied in a contract for their
sale if the seller is a merchant with respect to goods of that kind.” Plaintiffs seek leave
to amend their Complaint to include specific references to the statute. Defendant does
not object to Plaintiffs’ request for leave to amend their Complaint for this purpose.
Accordingly, Plaintiffs will be permitted to amend their Complaint to clarify that their
claim is one for implied warranty of merchantability under Ohio Revised Code §1302.27
and not a common-law claim for implied warranty.
C. Ohio Deceptive Trade Practices Act
Defendants argue that Plaintiffs have no standing to bring a claim under the Ohio
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Deceptive Trade Practices Act. Plaintiffs cite to a number of decisions issued by Ohio
courts which permitted claims brought by consumers to proceed under the ODTPA.
However, this Court is persuaded by recent decisions of this Court which have held that
consumers lack standing to bring a ODTPA claim. In re Porsche Cars N. Am., 880
F.Supp.2d 801, 874 (S.D.Ohio 2012); Gascho v. Global Fitness Holdings, LLC, 863 F.
Supp. 2d 677, 699 (S.D. Ohio 2012) (noting that at least one Ohio appellate court has
found that consumers lack standing under the ODTPA and judges in the Northern
District of Ohio have consistently found that consumers lack standing under the
ODTPA); see also Allen v. Andersen Windows, Inc., 913 F. Supp. 2d 490, 513 (S.D.
Ohio 2012) (“see[ing] no reason to depart from its holding in In re Porsche” and
dismissing consumer’s ODTPA claim). Therefore, as individual consumers, Plaintiffs
lack standing to bring a claim under the ODTPA and this claim is DISMISSED.
D. Ohio Consumer Sales Practices Act
Defendant argues that the MoM Hip System is a medical device and not a
consumer good under Ohio law.
As a consequence, there was no “consumer
transaction” under the OCSPA.
The OCSPA provides: “No supplier shall commit an unfair or deceptive act or
practice in connection with a consumer transaction. Such an unfair or deceptive act or
practice by a supplier violates this section whether it occurs before, during, or after the
transaction.”
Ohio Rev. Code § 1345.02(A).
The OCSPA defines “consumer
transaction” as “a sale, lease, assignment, award by chance, or other transfer of an
item of goods, a service, a franchise, or an intangible, to an individual for purposes that
are primarily personal, family, or household, or solicitation to supply any of these
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things.” Ohio Rev. Code § 1345.01(A).
Two federal district courts have concluded that medical devices are not
“consumer goods” under the OCSPA. Reeves v. PharmaJet, Inc., 846 F. Supp. 2d 791,
798, n.2 (N.D. Ohio 2012) (explaining in a footnote that the defendant’s “prescription
medical device is not a good for personal, family or household use and thus is not a
consumer good as defined by the OCSPA.”); Williams v. Boston Scientific Corp.,
3:12CV1080, 2013 WL 1284185, *6 (N.D. Ohio Mar. 27, 2013) (citing Reeves and
explaining that the medical device was not a “consumer good” because the hospital, not
the plaintiff was the consumer under the OCSPA). While these courts have presented
little in the way of analysis, their conclusion appears to be correct.
The MoM Hip
System was purchased by the hospital, not Plaintiffs, and therefore it was not a part of a
consumer transaction within the definition of OCSPA.
Accordingly, Plaintiffs’ claim
under the OCSPA is DISMISSED.
III.
CONCLUSION
Based on the foregoing, Defendant Smith & Nephew’s Motion to Dismiss (Doc. 5)
is GRANTED:
1. Plaintiffs’ claims for breach of express warranty (Fifth Cause of Action);
negligence (Seventh Cause of Action); and violations of the Ohio Consumer
Sales Practices Act (“OCSPA”) and Ohio Deceptive Trade Practices Act
(“ODTPA”) (Ninth Cause of Action) are DISMISSED;
2. Plaintiffs are granted leave to amend the Complaint to omit the dismissed
claims and clarify that their claim for breach of implied warranty (Sixth Cause
of Action) is one for implied warranty of merchantability under Ohio Revised
Code §1302.27;
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3. Plaintiffs shall file their Amended Complaint within fourteen (14) days of
entry of this Order.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT
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