Thompson et al v. Sunbeam Products, Inc. et al
Filing
50
ORDER GRANTING 37 Motion for Summary Judgment; DENYING 39 Motion in Limine as moot. Judgment is hereby entered in favor of defts. and against plaintiffs on all plaintiffs' claims. Signed by Judge James L Graham on 09/28/11. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Barbara K. Thompson,
et al.,
Plaintiffs,
v.
Case No. 2:10-cv-98
Sunbeam Products, Inc.,
et al.,
Defendants.
OPINION AND ORDER
This is a product liability action filed by plaintiffs Barbara
K. Thompson and her husband, Marlin D. Thompson, against defendants
Sunbeam Products, Inc. (“Sunbeam”), Jarden Consumer Solutions, a
d/b/a
name
under
which
Sunbeam
does
business,
Simatelex
Manufacturing Co. (“Simatelex”), and Wal-Mart Stores, Inc. (“WalMart”).
The complaint was filed on October 7, 2009, in the Common
Pleas Court of Gallia County, Ohio, and was removed to this court
on February 3, 2010, based on diversity of citizenship.
It is
alleged in the complaint that Barbara Thompson was injured while
using a hand mixer which was manufactured by Simatelex, a company
located in Hong Kong, China, marketed in the United States by
Sunbeam, and purchased by Mrs. Thompson at Wal-Mart.
The first five causes of action track the provisions of the
Ohio Product Liability Act (“OPLA”), Ohio Rev. Code §§ 2307.712307.80.
The first through fourth causes of action assert claims
against Sunbeam and Simatelex for defective manufacture and/or
construction (Ohio Rev. Code §2307.74); defective design and/or
formulation (Ohio Rev. Code §2307.75); inadequate warnings (Ohio
Rev.
Code
§2307.76);
and
nonconformance
with
manufacture’s
representations (Ohio Rev. Code §2307.77).
The fifth cause of
action asserts a claim against Wal-Mart for supplier’s liability
(Ohio Rev. Code §2307.78).
The complaint also includes causes of
action based on the common law of product liability asserted
against Sunbeam and Simatelex, including: the sixth cause of action
for breach of the implied warranties of merchantability and fitness
for use; the seventh cause of action for breach of the express
warranties that the product was free from defects in workmanship
and materials; the eighth cause of action asserting a claim of
common law product liability; and the ninth cause of action for
strict product liability.
The thirteenth cause of action asserts
a claim for breach of implied or express contract against Wal-Mart,
alleging that Wal-Mart represented that the hand mixer was not
unreasonably dangerous or defective.
The fourteenth cause of
action asserts a claim of common law negligence against all
defendants.
The tenth cause of action asserts a claim against all
defendants for deceptive acts and unconscionable practices in
violation of the Ohio Consumer Sales Practices Act (“CSPA”), Ohio
Rev. Code §§1345.02 and 1345.03.
asserts
a
claim
for
punitive
The eleventh cause of action
damages
against
Sunbeam
and
Simatelex,1 and the twelfth cause of action asserts a claim on
behalf
of
Mr.
Thompson
against
all
defendant
for
loss
of
consortium.
1
Although the claim for punitive damages is denominated as a “cause of
action” in the complaint, it is not in fact a cause of action. See Hitchings
v. Weese, 77 Ohio St.3d 390, 391, 674 N.E.2d 688 (1997)(in Ohio, no civil
cause of action may be maintained simply for punitive damages). Rather,
punitive damages are awarded as an incident of the cause of action in which
they are sought, and are simply a remedy for other claims. Moskovitz v. Mt.
Sinai Med. Ctr., 69 Ohio St.3d 638, 650, 635 N.E.2d 331 (1994). Thus, if
plaintiffs’ substantive claims do not survive, the remedy of punitive damages
is unavailable as well.
2
I. Background
Barbara Thompson purchased a Sunbeam Mixmaster at Wal-Mart on
October 10, 2007.
Thompson Dep. p. 11.
She was familiar with
electric hand mixers and had owned a Black & Decker mixer for about
twenty years before purchasing the Sunbeam mixer.
pp. 11-12.
She removed the mixer from the box to test it to make
sure it worked.
instruction
Thompson Dep.
Thompson Dep. p. 17.
booklet,
which
included
the
The box included an
language
“IMPORTANT
SAFEGUARDS” in enlarged capital letters at the top of the page, and
the language “READ ALL INSTRUCTIONS BEFORE USE” in slightly smaller
capital letters.
Under the “important safeguards” section was a
bullet point stating “Unplug from outlet while not in use, before
putting on or taking off parts and before cleaning.”
Another
bullet point in that section stated, “Avoid contact with moving
parts.
Keep hands, hair, clothing, as well as spatulas and other
utensils away from beaters during operation to reduce the risk of
injury to persons and/or damage to the hand mixer.”
The next page
of the instruction booklet included a section in enlarged capital
letters on “INSTALLING ATTACHMENTS.”
Under this heading, the
manual stated,
Make sure the speed control is in the “OFF” position and
unplugged from an electrical outlet. Insert attachments
one at a time by placing stem end into the opening on the
bottom of the mixer. Turn attachment slightly and push
in until it clicks into position. (See Figure A) Plug
into the appropriate outlet. Turn mixer on and adjust
speed setting using the control on the top of the unit.
The manual also contained a section in enlarged capital letters
entitled “EJECTING BEATERS.”
This section stated, “Make sure the
speed control is in the ‘OFF’ position and unplugged from an
electrical outlet” prior to ejecting beaters.”
3
The bottom of the
white mixer body also contained the following language, albeit
barely
legible,
in
white
lettering:
inserting or removing parts.”
“Caution:
Unplug
before
Lawrence Dubois Dep. pp. 11-12, 49;
Richard Prins Dep. p. 51.
Mrs.
Thompson
stated
that
she
“browsed
through”
the
instruction booklet, looking it over but “not word for word.”
Thompson Dep. p. 16.
When asked if she read the “important
safeguards” section, she stated she “looked it over, but I didn’t
go word for word; skimmed or whatever.”
did not review the entire manual.
Thompson Dep. p. 16.
Thompson Dep. p. 18.
She
She
inserted the beaters and pushed them until they clicked.
Thompson
Dep.
came
p.
19.
When
she
plugged
in
the
mixer,
it
on
automatically. Thompson Dep. p. 19. She thought she had looked at
the switch before plugging in the mixer, but it was possible that
she didn’t.
Thompson Dep. p. 18.
She stated she did not know if
the switch was in the “on” position, or, if it was, how it got in
that position. Thompson Dep. p. 19.
She also had no evidence that
the control mechanism or switch malfunctioned in any way. Thompson
Dep. p. 20.
Mrs. Thompson stated that one of the beaters started
to come down.
She stated she had no knowledge as to whether the
locking mechanism for the beaters was malfunctioning.
Dep. p. 25.
(indicating).
know.
Thompson
She stated that she “went like that to push it up
I didn’t think.
I just – it was just a reflex, you
I just automatic [sic] went up there, wasn’t thinking.”
At
that point, her finger got caught in the beaters and was almost
completely severed.
Thompson Dep. p. 17.
Mrs. Thompson testified that at the time, she was holding the
mixer’s handle with her right hand in the air.
One of the beaters
was not fully seated and she moved to put it back in with her left
4
hand while the power was on and the other beater was still turning.
Thompson Dep. pp. 21-22.
“It was just a reflex.
thinking.”
When asked why she did that, she stated,
I don’t know.
Thompson Dep. p. 22.
I just – just did it without
She was asked whether the
language in the manual that said “avoid contact with moving parts”
would suggest to her that one should not put his or her hand on a
moving part, she responded, “But I wasn’t thinking.” Thompson Dep.
p. 25.
Mrs.
Thompson
acknowledged
that
the
instruction
booklet
included a direction to make sure the speed control is in the “off”
position and unplugged from and electrical outlet.
pp. 26-27.
Thompson Dep.
She did not know if she checked to make sure that the
speed control was in the “off” position before inserting the
beaters, and she did not recall whether she turned the beater
slightly, as instructed. Thompson Dep. p. 27. She did not look at
the warning language that was imprinted on the body of the mixer.
Thompson Dep. p. 27-28.
Mrs. Thompson’s ring finger was pulled into the two beaters.
Thompson Dep. p. 28.
She tried unsuccessfully to turn the mixer
off and finally placed it on the counter and unplugged it.
Thompson Dep. p. 28.
Her finger was lodged in between the beaters
and was still attached on one edge.
Thompson Dep. p. 29. She also
sustained cuts on the underside of her third and fifth fingers.
Thompson Dep. p. 30. She called to her husband for assistance, and
she was taken to the hospital. Thompson Dep. p. 30-31. Her finger
was later amputated in the knuckle area.
Richard J. Prins, a senior director product safety engineer
employed by Sunbeam, testified concerning the hand mixer.
been employed by Sunbeam since 1980.
5
Prins Dep. p. 8.
He has
The mixer
purchased by Mrs. Thompson has a UL listing mark on it that
indicated that the product was UL approved.
Prins Dep. p. 11.
Prins was previously employed by Underwriters Laboratories (“UL”),
a business which generates safety standards for products and tests
products for compliance with those standards.
Prins Dep. p. 10.
Products bearing the UL mark must submit the product to UL for
testing, and the product must be manufactured in accordance with
the submitted product specifications.
Prins Dep. p. 11.
UL also
conducts four unannounced inspections of the manufacturing facility
to make sure that the product is still in compliance, and completes
additional testing of samples of the product once a year.
Prins
Dep. p. 11.
The mixer purchased by Mrs. Thompson was the Sunbeam Mixmaster
model 2524, which was manufactured and designed by Simatelex, a
Chinese corporation.
is
submitted
to
Prins Dep. pp. 12-13.
Sunbeam
and
approved
by
After a mixer design
Sunbeam’s
marketing
department, the design is submitted to the engineering department
to start a product specification.
Prins Dep. pp. 14, 22.
The
design goes through a qualification process, which includes a
third-party testing by UL.
to its standards.
a pre-pilot
Prins Dep. p. 23.
UL tests the design
The design goes through an engineering build in
manufacturing and production area, and must meet
certain quality criteria established by the engineering department.
Prins Dep. pp. 23-24.
The mixer is also subjected to life testing
(long continuous operation) and heavy load testing. Prins Dep. pp.
63-64.
When the mixer is in production at Simatelex, Sunbeam’s
quality organization in Hong Kong goes to the plant, verifies that
the manufacturer performed required tests, and randomly picks
samples to make sure that the mixers are properly packaged and
6
operate properly.
Prins Dep. pp. 24-26.
The mixers usually have
their switches in the “off” position when packaged, but the user
could inadvertently hit the switch while using the handle to remove
the mixer from the package.
Prins Dep. p. 54.
Prins had received
no reports from quality assurance that the user manual was not
found in the sample boxes.
Prins Dep. p. 36.
Sunbeam’s engineering, marketing and legal departments were
involved in authoring the instruction manual for the mixer.
The
“important safeguards” section of the manual, in black text, was
written to comply with the UL 982 standard for electric household
food preparing equipment.
Prins Dep. p. 37; Dubois Dep. p. 13.
A
manufacturer is permitted to add language to the UL minimum
required language, but the additional language must be approved by
UL.
Prins Dep. pp. 37, 41. The warnings included with the Sunbeam
Mixmaster met industry standards.
Prins Dep. p. 75.
Prins had seen no reports on the mixer from the Consumer
Product Safety Commission, which investigates reports of injury.
Prins Dep. p. 48.
He was unaware of any other cases of injuries
from the use of this particular hand mixer, and was aware of one
other report of a finger injury from the use of another mixer with
a broken part.2
Prins Dep. pp. 48-49, 58-61.
Prins stated that he
did not believe that there was an increased risk of wearing jewelry
or rings while operating the mixer because the warnings instructed
the user to avoid contact with moving parts and to keep hands,
hair, clothing and utensils away from the beaters.
Prins Dep. p.
2
This court’s computer research through the federal and state
directories likewise disclosed only one reported product liability case
involving a kitchen mixer. See Burke v. Hamilton Beach Div., Scovill Mfg.
Co., 424 A.2d 145 (Me. 1981). In that case, a safety mechanism on a twentyyear-old mixer failed and allowed the beaters to turn while the plaintiff was
inserting them.
7
51-52.
Prins was unaware of any safety standards for kitchen
equipment which advised against wearing jewelry during operation,
although he had seen it in the industrial or manufacturing context
where jewelry could accidently catch on operator buttons, thereby
inadvertently actuating the manufacturing machine.
55-56.
Prins Dep. pp.
Prins had seen no technical bulletins or recall notices
regarding the mixer.
Prins Dep. pp. 64-65.
He testified that
placing a guard around the outside of the beaters to protect
against injury would also prevent food mixing.
Prins Dep. p. 65-
66. He was unaware of any mechanical device which would reduce the
risk of injury without compromising the utility of the mixer.
Prins Dep. p. 75.
Lawrence Dubois, an engineer and manager of the materials and
product testing department at CTL Engineering for thirty years, was
retained by Sunbeam to examine the hand mixer involved in this
case.
In his report dated November 29, 2010, Doc. 37-6, DuBois
stated that the mixer operated properly and functioned as designed.
The on/off switch operated normally, no damage to the mixer was
noted, the motor and beaters operated as expected, the eject button
operated properly, and the engagement of the beaters was secure
when they were properly installed, as evidenced by a clicking
sound.
He found no evidence of any malfunctions or manufacturing
or design defects in the mixer.
He could not say whether there was
a pinch point on the mixer, since he did not evaluate the mixer to
determine if there was a pinch point.
DuBois Dep. pp. 36-37.
A
pinch point occurs where at least one movable component in the
machinery comes into close proximity or direct contact with another
component of the machinery.
Dubois Dep. p. 25.
DuBois saw no
evidence on the beaters that they had come into contact with a hard
8
object such as a ring.
Since the photograph of the rings did not
show any damage to the ring, DuBois had trouble “understanding how
the beaters would catch a ring and pull the ring finger into the
beaters[.]”
DuBois Dep. p. 47.
He was also unaware of any
injuries to the ring side of the hand which would be consistent
with the ring pulling the hand into the beaters and causing injury
to the area around the ring.
DuBois Dep. p. 48.
DuBois also reviewed the user’s manual, noting the instruction
to avoid contact with moving parts, to keep hands, hair, clothing
and utensils away from the beaters during operation and to unplug
the mixer before putting on or taking off parts. He concluded from
Mrs.
Thompson’s
deposition
testimony
that
she
violated
these
warnings when she attempted to push a loose beater back into the
mixer with her hand while it was operating, and that she failed to
properly insert the beaters.
DuBois stated that additional warnings concerning wearing
jewelry would not have prevented Mrs. Thompson’s injury, because
she testified that placing her hand against the moving beaters was
reactionary. Dubois stated in his report, “Warnings do not protect
against such reactions.”
DuBois also noted that it would be
unrealistic to construct the mixer so as not to expose moving
parts, because “exposed moving parts are an inherent necessity in
the operation of a hand mixer for its intended use and are
permitted by UL 982.”
prohibition
against
He stated that he was only aware of a
wearing
jewelry
around
machinery
in
one
instance involving a piece of manufacturing equipment. DuBois Dep.
pp. 26-27.
Plaintiffs
retained
Lewis
Barbe,
a
safety
engineer
with
Occupational Safety and Health Services, as an expert witness.
9
In
his report, Doc. 39-2, Barbe concluded that the instructions
provided with the mixer were inadequate in that they did not
specifically warn against wearing jewelry around the moving parts.
Barbe also concluded in his report that the mixer was defective
because Sunbeam failed to construct a mixer without exposed moving
parts.
However, he stated in his deposition that he was not
criticizing the mixer for having exposed moving parts, and that he
was not offering an opinion concerning whether the mixer had a
manufacturing or design defect.
Barbe Dep. pp. 34, 63.
Barbe
concluded that the defects in the warnings were the proximate cause
of Mrs. Thompson’s injuries.
Mr. Barbe testified at his deposition that he did not examine
the actual mixer at issue in this case and did not test the mixer.
Barbe Dep. pp. 28-31.
He did not know which beater fell out, and
did not know in which direction the beaters rotated. Barbe Dep. p.
33.
Mr. Barbe was unaware of any other cases where a person was
injured wearing jewelry while operating a Sunbeam mixer.
Dep. p. 39.
Barbe
He opined that the statements in the instruction
manual were not warnings because they did not include some signal
such as the word “danger,” lettering in a different color, or an
exclamation point.
Barbe Dep. pp. 42-45, 66.
II. Motion for Summary Judgment
A. Summary Judgment Standards
Defendants
have
moved
for
summary
judgment
on
all
of
plaintiffs’ claims. “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
10
Fed. R. Civ. P. 56(a).
The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a
matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986).
A party asserting that a fact cannot be or is
genuinely
disputed
must
support
the
assertion
by
citing
to
particular parts of materials in the record, by showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or by demonstrating that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P.
56(c)(1)(A) and (B). In considering a motion for summary judgment,
this court must draw all reasonable inferences and view all
evidence in favor of the nonmoving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Am.
Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688
(6th Cir. 2011).
The moving party has the burden of proving the absence of a
genuine dispute and its entitlement to summary judgment as a matter
of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden of showing the lack of a genuine dispute
can be discharged by showing that the nonmoving party has failed to
establish an essential element of his case, for which it bears the
ultimate burden of proof at trial.
Id.
Once the moving party
meets its initial burden, the nonmovant must set forth specific
facts showing that there is a genuine dispute for trial.
322 n. 3.
Id. at
“A dispute is ‘genuine’ only if based on evidence upon
which a reasonable jury could return a verdict in favor of the nonmoving party.”
(6th Cir. 2008).
Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298
A fact is “material” only when it might affect
11
the outcome of the suit under the governing law. Id; Anderson, 477
U.S. at 248.
The nonmovant must “do more than simply show that there is
some metaphysical doubt as to the material facts[.]”
475 U.S. at 586.
Matsuchita,
A mere scintilla of evidence is not enough.
Anderson, 477 U.S. at 252; Ciminillo v. Streicher, 434 F.3d 461,
464
(6th
Cir.
2006).
Further,
the
nonmoving
party
has
an
affirmative duty to direct the court's attention to those specific
portions of the record upon which it seeks to rely to create a
genuine
issue
of
material
fact.
See
Fed.
R.
Civ.
P.
56(c)(3)(noting that the court “need consider only the cited
materials”).
Because jurisdiction is based on diversity, the substantive
law of the forum state applies.
Anton v. National Union Fire Ins.
Co. of Pittsburgh, Pa., 634 F.3d 364, 367 (6th Cir. 2011).
The
parties do not dispute that the law of Ohio governs plaintiffs’
claims. This court must apply the state law in accordance with the
decisions of the highest state court.
Ventura v. The Cincinnati
Enquirer, 396 F.3d 784, 792 (6th Cir. 2005).
If the Ohio Supreme
Court has not directly addressed an issue, this court “must
ascertain from all available data, including the decisional law of
the state’s lower courts, what the state’s highest court would
decide if faced with the issue.”
Ziegler v. IBP Hog Market, Inc.,
249 F.3d 509, 517 (6th Cir. 2001).
In their memorandum contra defendants’ motion for summary
judgment,
plaintiffs
focus
their
arguments
primarily
adequacy of the warnings provided with the mixer.
on
the
They do not
address many of the arguments made by defendants and thus may be
deemed to have conceded those claims.
12
Nonetheless, the court will
address all of plaintiffs’ claims in deciding the motion.
The
court will also assume, for purposes of deciding the motion for
summary judgment, that Lewis Barbe is qualified as an expert.
B. Defective Manufacture and Construction
Under Ohio Rev. Code §2307.73(A), a manufacturer is subject to
liability based on a product liability claim only if the plaintiff
establishes by a preponderance of the evidence that a product
designed, formulated, produced, constructed, created or assembled
by the manufacturer was defective in manufacture or construction
(§2307.57), was defective in design or formulation (§2307.75), was
defective due to inadequate warning or instruction (§2307.76), or
was defective because it did not conform to a representation made
by the manufacturer (§2307.77) and that the defective aspect of the
product was the proximate cause of harm to the plaintiff.
A
“manufacturer” is “a person engaged in a business to design,
formulate, produce, create, make, construct, assemble, or rebuild
a
product
or
a
component
of
a
product.”
Ohio
Rev.
Code
§2307.71(9).
In the first cause of action, plaintiffs allege that Mrs.
Thompson
was
injured
due
to
the
defective
manufacture
construction of the mixer by Sunbeam and Simatelex.
or
“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.”
§2307.74.
DuBois’ report and deposition indicate that the mixer
worked properly, and that he found no sign of damage, defective
manufacture or defective construction.
13
No evidence of defective
manufacture or construction was presented in this case, and Sunbeam
and Simatelex are entitled to summary judgment on this claim.
See
Becton v. Starbucks Corp., 491 F.Supp.2d 737, 748-49 (S.D.Ohio
2007)(granting summary judgment on manufacturing defect claim where
plaintiff failed to present evidence showing that his injuries were
caused by a manufacturing defect and not by other possibilities,
such as his own negligence).
C. Defective Design or Formulation
In the second cause of action, plaintiffs allege that Sunbeam
and
Simatelex
are
liable
due
to
defects
in
the
design
or
formulation of the mixer.
A product is defective in design or
formulation
time
“if,
at
the
it
left
the
control
of
its
manufacturer, the foreseeable risks associated with its design or
formulation ... exceeded the benefits associated with that design
or formulation[.]”
Ohio Rev. Code §2307.75(A).
Factors to be considered in determining foreseeable risks
include:
(1)
the
nature
and
magnitude
of
the
risks
of
harm
associated with the design or formulation in light of the intended
and reasonably foreseeable uses 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 the design or formulation would cause harm in light of the
intended and reasonably foreseeable uses of the product; (4) the
extent
to
which
the
design
or
formulation
conformed
to
any
applicable public or private product standard; and (5) the extent
to which the design or formulation is more dangerous than a
reasonably prudent consumer would expect when used in an intended
or reasonably foreseeable manner.
Ohio Rev. Code §2307.75(B).
Factors to consider in determining the benefits associated
14
with the design or formulation include: (1) the intended or actual
utility
of
the
product,
including
any
performance
or
safety
advantages associated with the design or formulation; (2) the
technical and economic feasibility of using an alternative design
or formulation; and (3) the nature and magnitude of any foreseeable
risks associated with an alternative design or formulation.
Rev. Code §2307.75(C).
Ohio
The OPLA further provides:
(E) A product is not defective in design or formulation
if the harm for which the claimant seeks to recover
compensatory damages was caused by an inherent
characteristic of the product which is a generic aspect
of the product that cannot be eliminated without
substantial compromising the product’s usefulness or
desirability and which is recognized by the ordinary
person with the ordinary knowledge common to the
community.
(F) A product is not defective in design or formulation
if, at the time the product left the control of its
manufacturer, a practical and technically feasible
alternative design or formulation was not available that
would have prevented the harm for which the claimant
seeks to recover compensator damages without substantial
impairing the usefulness or intended purpose of the
product.
Ohio Rev. Code §2307.75(E) and (F); Kerg v. Atlantic Tool and Die
Co., 176 Ohio App.3d 437, 449-450, 892 N.E.2d 481 (2008). The mere
fact that a product may or did cause injury does not mean that the
product is defective based on its design.
Bouher v. Aramark
Services, Inc., 181 Ohio App.3d 599, 603, 910 N.E.2d 40 (2009).
In his report, DuBois states that he found no evidence of
design defects in the mixer.
There is obviously a risk of harm
involved in placing body parts in close proximity to rapidly
turning beaters.
However, the risk posed by placing body parts,
clothing or other objects near the beaters would be obvious to the
user of the mixer, particularly experienced users such as Mrs.
15
Thompson, based on general knowledge and the instructions which
accompanied the mixer, which specifically warned users to “[a]void
contact with moving parts.
Keep hands, hair, clothing, as well as
spatulas and other utensils away from beaters during operation to
reduce the risk of injury to persons and/or damage to the hand
mixer.”
If this cautionary instruction is heeded, the mixer is
safe to use for its intended function, witness the fact that
neither party has cited any product liability cases involving
household kitchen mixers.
and
the
approved.
instruction
There is also evidence that the mixer
booklet
accompanying
the
mixer
were
UL
Compliance with such industry safety standards “is a
compelling factor.”
Vermett v. Fred Christen & Sons Co., 138 Ohio
App.3d 586, 609, 741 N.E.2d 954 (2000).
There is no evidence of any feasible alternative design which
would have shielded the beaters.
DuBois stated in his report that
“exposed moving parts are an inherent necessity in the operation of
a hand mixer for its intended use and are permitted by UL 982.”
Prins testified that placing a guard around the outside of the
beaters to protect against injury would also prevent food mixing,
and that he was unaware of any mechanical device which would reduce
the risk of injury without compromising the utility of the mixer.
Prins Dep. pp. 65-66, 75.
See Jacobs v. E.I. Du Pont de Nemours &
Co., 67 F.3d 1219, 1242 (6th Cir. 1995)(upholding summary judgment
on defective design claim where plaintiffs offered no evidence that
there was an alternative design that would have avoided plaintiffs’
injuries without undermining the efficacy of the products).
The evidence establishes that the harm caused to Mrs. Thompson
was due to an inherent characteristic of the mixer which is a
generic aspect of the product that cannot be eliminated without
16
substantially compromising the product’s usefulness.
The risk of
getting her ring finger close to the beaters would have been
recognized by an ordinary person with ordinary knowledge common to
the community as presenting the risk of getting one’s finger caught
in the beaters.
There was no evidence that a practical and
technically feasible alternative design was available that would
have prevented the injury to Mrs. Thompson without substantially
impairing the usefulness or intended purpose of the product.
Plaintiffs have failed to produce expert or other evidence
sufficient to demonstrate that the mixer’s design was defective in
any way within the meaning of §2307.75.
See Becton, 491 F.Supp.2d
at 749 (granting summary judgment on defective design claim);
Gumnitsky v. Delta International Machinery Corp., 411 F.Supp.2d
756, 762 (N.D.Ohio 2005)(summary judgment granted on defective
design claim where plaintiff presented no expert analysis or other
evidence
demonstrating
defective).
that
some
aspect
of
the
design
was
No genuine dispute has been shown to exist in regard
to the claim of defective design or formulation, and Sunbeam and
Simatelex are entitled to summary judgment on this claim.
D. Defects Due to Inadequate Warning or Instruction
In the third cause of action, plaintiffs assert claims against
Sunbeam and Simatelex alleging that the mixer was defective due to
inadequate warning or instruction.
A product is defective due to
inadequate warning or instruction if, when it left the control of
the manufacturer, (1) 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,
and
(2)
the
manufacturer failed to provide the warning or instruction that a
17
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.
Ohio Rev. Code §2307.76(A)(1)(a) and (b).
The
statute further provides that a product “is not defective due to
lack of warning or instruction or inadequate warning or instruction
as a result of the failure of its manufacturer to warn or instruct
about an open and obvious risk or a risk that is a matter of common
knowledge.
Ohio Rev. Code §2307.76(B).
A warning is adequate if it reasonably discloses all inherent
risks and if the product is safe when used as directed.
Boyd v.
Lincoln Electric Co., 179 Ohio App.3d 559, 569, 902 N.E.2d 1023
(2008).
Where the injury would not have occurred if the warnings
had been followed, the content of the warning was adequate.
Phan
v. Presrite Corp., 100 Ohio App.3d 195, 200, 653 N.E.2d 708 (1994).
However, warnings may be found inadequate not only based on their
content, but also on their form, manner of expression, or lack of
exigency.
Boyd, 179 Ohio App.3d at 569.
The instruction booklet in this case included the language
“IMPORTANT SAFEGUARDS” in enlarged capital letters at the top of
the page, and the language “READ ALL INSTRUCTIONS BEFORE USE” in
slightly smaller capital letters. Under the “IMPORTANT SAFEGUARDS”
section was a bullet point stating “Unplug from outlet while not in
use, before putting on or taking off parts and before cleaning.”
Another bullet point in that section stated, “Avoid contact with
moving parts.
Keep hands, hair, clothing, as well as spatulas and
other utensils away from beaters during operation to reduce the
risk of injury to persons and/or damage to the hand mixer.”
18
The
next page of the instruction booklet included a section in enlarged
capital letters on “INSTALLING ATTACHMENTS.”
Under this heading,
the manual stated,
Make sure the speed control is in the “OFF” position and
unplugged from an electrical outlet. Insert attachments
one at a time by placing stem end into the opening on the
bottom of the mixer. Turn attachment slightly and push
in until it clicks into position. (See Figure A) Plug
into the appropriate outlet. Turn mixer on and adjust
speed setting using the control on the top of the unit.
The manual also contained a section in enlarged capital letters
entitled “EJECTING BEATERS.”
This section stated, “Make sure the
speed control is in the ‘OFF’ position and unplugged from an
electrical outlet” prior to ejecting beaters.”
The bottom of the
white mixer body also contained the following language, albeit
barely
legible,
in
white
lettering:
“Caution:
Unplug
before
inserting or removing parts.”
This language clearly informs users to keep body parts and
other objects clear of the moving beaters, and to unplug the mixer
before inserting the beaters.
Plaintiffs’ expert, Lewis Barbe,
took issue with the fact that this language was not preceded by a
signal word such as “danger” in another color.
statements are more than mere instructions.
However, these
The words “IMPORTANT
SAFEGUARDS” appear conspicuously at the top of the page in large
print.
A “safeguard” guards against something that is not safe.
This word is the literal equivalent of “danger.”
In addition, the
user is instructed to keep body parts and clothing away from the
beaters
during
operation
“to
reduce
the
risk
of
injury
to
persons[.]”
Barbe also objected to the warnings on the ground that they
did not specifically advise the user to remove jewelry such as
19
rings prior to operating the mixer.
The court notes that although
plaintiffs allege that the injury was the result of Mrs. Thompson’s
ring being caught in the beaters, Mrs. Thompson never testified
that the moving beater hit her ring.
The record includes what
purports to be an unauthenticated emergency room report, in which
it is stated that Mrs. Thompson caught her ring finger in “some
sort of blender mechanism” and that “it looks like it caught her
rings and created an almost total amputation of the left 4th
finger, that is malrotated.”
The Sixth Circuit has held that “‘it
is well settled that only admissible evidence may be considered by
the trial court in ruling on a motion for summary judgment.’”
Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994)(quoting
Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.
1988)).
Unauthenticated exhibits are not proper evidence for
opposing or supporting a summary judgment motion.
Steele v.
Jennings, No. 2:04-cv-189, 2005 WL 2124152 at *3 (S.D. Ohio Aug.
31, 2005).
The report also includes hearsay evidence may not be
considered on a motion for summary judgment.
Jacklyn v. Schering-
Plough Healthcare Products Sales Corp., 176 F.3d 921, 927 (6th Cir.
1999).
The record does not include any expert medical testimony
concerning
the
exact
Thompson’s finger.
nature
or
cause
of
the
injury
to
Mrs.
Because there is no competent evidence in the
record that the ring contributed to her injury, Barbe’s testimony
regarding the necessity of warning against wearing a ring is
irrelevant.
Even assuming that the ring did contribute to or exacerbate
plaintiff’s injury, the that fact that the warnings did not
specifically advise users to remove their rings did not render the
warnings
inadequate.
The
warnings
20
did
specifically
mention
“clothing,” and a ring is worn on the body, as are articles of
clothing.
Defendants were not required to include in the warnings
an exhaustive list of the specific types of clothing, jewelry, or
other articles which might come into contact with the beaters. The
language instructed users to keep their hands away from the moving
parts.
Plaintiffs’ expert, Lewis Barbe, did not explain why the
warning about keeping one’s hands away from the beater was not
adequate to prevent injury from wearing a ring.
Even Barbe agreed
that if the user followed the instruction to keep his or her hands
away from the beaters during operation, the user’s hand would not
be caught in the beaters and the user would not be injured.
Dep. pp. 46-47.
Barbe
He also agreed that the beaters would never take
a person’s finger off because of the person was wearing a ring if
the user’s hand never comes into contact with the moving part.
Barbe Dep. p. 67.
See Phan, 100 Ohio App.3d at 200 (content of
warning was adequate where all experts agreed that accident would
not have occurred if warning label had been followed).
Thus,
Barbe’s opinion in regard to the need for a specific warning about
wearing rings is insufficient to create a genuine dispute.
Defendants
have
presented
evidence
that
the
“important
safeguards” section of the manual, in black text, was written to
comply with the UL 982 standard for electric household food
preparing equipment.
Prins Dep. p. 37; Dubois Dep. p. 13.
A
manufacturer is permitted to add language to the UL minimum
required language, but the additional language must be approved by
UL.
Prins Dep. pp. 37, 41. The warnings included with the Sunbeam
Mixmaster met industry standards. Prins Dep. p. 75. No reasonable
trier of fact would find that the warnings in the manual were
inadequate in their manner of presentation or by reason of the
21
failure to specifically warn against wearing jewelry, nor could a
jury find that the wearing of a ring played any role in causing
plaintiff’s injury.
Plaintiffs must also show that the lack of proper warnings was
the proximate case of the injury to Mrs. Thompson.
In Ohio, there
is a presumption that an adequate warning, if given, will be read
and heeded.
Freas v. Prater Construction Corp., Inc., 60 Ohio
St.3d 6, 9, 573 N.E.2d 27 (1991); Boyd, 179 Ohio App.3d at 571.
Here, Mrs. Thompson testified that she “browsed through” the
instruction booklet, looking it over but “not word for word.”
Thompson Dep. p. 16.
When asked if she read the “important
safeguards” section, she stated she “looked it over, but I didn’t
go word for word; skimmed or whatever.”
did not review the entire manual.
Thompson Dep. p. 16.
Thompson Dep. p. 18.
She
See Phan,
100 Ohio App.3d at 201 (plaintiff failed to establish that alleged
inadequacy of the warning was the proximate cause of plaintiff’s
injuries where plaintiff did not read the warning).
Assuming that Mrs. Thompson read the relevant portions of the
manual, those statements contained adequate warnings about keeping
hands and clothing away from the beaters during operation of the
mixer.
Mrs. Thompson should then have been aware of the danger of
getting her hand, on which the ring was located, close enough to
the moving beaters for the ring to get caught.
See Freas, 60 Ohio
St.3d at 10 (finding that the lack of additional warnings did not
cause worker’s death where the worker had read the manual and knew
the dangers of standing under the boom of the crane).
Here,
defendants argue that Mrs. Thompson’s injury was caused by her own
inattention.
Mrs.
Thompson
grabbed
the
ejected
beater
attempted to re-insert it while the mixer was still running.
22
and
When
asked why she did that, she stated, “It was just a reflex. I don’t
know.
22.
I just – just did it without thinking.”
She stated, “I didn’t think.
Thompson Dep. p.
I just – it was just a reflex,
you know. I just automatic [sic] went up there, wasn’t thinking.”
Thompson Dep. p. 17.
She even testified that she had previously
adjusted
an
beaters
on
electric
mixer
before
while
it
was
operating, stating, “My older mixer would sometimes drop down, and
I would push it up, too, just without thinking.”
28.
Thompson Dep. p.
DuBois noted in his report that
it is illogical that warning against wearing rings ...
while operating the mixer in addition to the existing
warnings would have prevented her injury. She testified
that placing her hand against the moving beaters was
reactionary.
Warnings do not protect against such
reactions.
No trier of fact could reasonably find that any warnings more
specific than those given in the manual, specifically, to keep
hands and clothing away from the beaters while the mixer was
operating,
would
have
forestalled
Mrs.
Thompson’s
ingrained
reflexive reaction.
Defendants also argue that the mixer was not defective due to
the alleged lack of adequate warnings because the alleged failure
to warn concerned “an open and obvious risk or a risk that is a
matter of common knowledge.”
§2307.76(B); Hanlon v. Lane, 98 Ohio
App.3d 148, 152-54, 648 N.E.2d 26 (1994)(dangers of improperly
vented gas furnace and carbon monoxide poisoning were open and
obvious); Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 163,
644 N.E.2d 731 (1994)(dangers of excessive or prolonged use of
alcoholic beverages was a matter of common knowledge in the
community
and
generally
know
and
recognized
by
the
ordinary
consumer); Pfaff v. Benjamin Air Rifle Co., No. 71998 (8th Dist.),
23
1997 WL 764761 (Ohio App. Dec. 11, 1997)(being shot in the eye by
a paint gun was an obvious risk). In considering whether a product
presents an open and obvious risk, it is necessary to determine
whether the particular hazard giving rise to the subject injury was
obvious or commonly known.
Lykins v. Fun Spot Trampolines, 172
Ohio App.3d 226, 232, 874 N.E.2d 811 (2007).
“It is not the
severity of the specific injury that constitutes the open and
obvious
risk;
the
open
and
obvious
risk
is
the
‘danger
or
potentiality for danger’ that a product possesses, regardless of
the innumerable degrees of severity of injury which might occur.”
Bouher, 181 Ohio App.3d at 604 (quoting Nadel v. Burger King Corp.,
119 Ohio App.3d 578, 592, 695 N.E.2d 1185 (1997)(Hildebrandt, J.,
concurring in part and dissenting in part)).
In this case, the hazard was created by Mrs. Thompson bringing
her hand into close proximity with the moving beaters, which caused
her ring finger to be pulled into the two beaters.
p. 28.
Thompson Dep.
The risk of injury from placing one’s hands near rapidly
turning beaters is an open and obvious risk or a risk that is a
matter of common knowledge.
No genuine dispute has been shown to exist in regard to
plaintiffs’ claim of inadequate warnings, and Sunbeam and Simatelex
are entitled to summary judgment on this claim.
E. Nonconformance with Manufacturers’ Representations
In their fourth cause of action against Sunbeam and Simatelex,
plaintiffs
allege
that
the
mixer
was
defective
nonconformance with manufacturers’ representations.
due
to
“A product is
defective if it did not conform, when it left the control of its
manufacturer, to a representation made by that manufacturer.”
§2307.77.
This
statute,
by
its
24
terms,
applies
to
express
warranties.
Plaintiffs argue that the failure to include adequate
warnings for the safe operation of the mixer breached the warranty
of fitness of this product.
Aside from the fact that plaintiffs
have failed to show that the mixer was defective due to the lack of
proper warnings, the common law claim of breach of the implied
warranties of merchantability and fitness for a particular purpose
against manufacturer and supplier were expressly abrogated by an
amendment to the OPLA, effective April 7, 2005. See Ohio Rev. Code
§2307.71(B)(stating that §§2307.71 to 2307.80 “are intended to
abrogate all common law product liability claims or causes of
action.”); Miles v. Raymond Corp., 612 F.Supp.2d 913, 917-924
(N.D.Ohio 2009)(common law product liability claims of breach of
implied warranties were abrogated by the OPLA.); Luthman v. Minster
Supply co., No. 2-06-43 (3rd Dist.), 2008 WL 169999 at *7 (Ohio
App. Jan. 22, 2008)(OPLA has preempted the implied warranties of
merchantability and fitness for a particular purpose)(citing Nadel,
119 Ohio App.3d at 585).
There is no evidence that Sunbeam or Simatelex breached any
express warranty to plaintiffs.
No evidence of any express
warranties which may have been made in connection with the sale of
the mixer is included in the record.
Sunbeam and Simatelex are
entitled to summary judgment on this claim.
F. Liability of Wal-Mart as a Supplier
Plaintiffs allege in their fifth cause of action that Wal-Mart
is liable as a supplier of the hand mixer.
Wal-Mart’s potential
liability is governed by Ohio Rev. Code §2307.78.
That section
provides that a supplier is liable only if:
(1) The supplier in question was negligent and that[]
negligence was the proximate cause of harm for which the
claimant seeks to recover compensatory damages;
25
(2) The product in question did not conform, when it left
the control of the supplier in question, to a
representation made by that supplier, and that
representation and the failure to conform to it were a
proximate cause of harm for which the claimant seeks to
recover compensatory damages. A supplier is subject to
liability for such a representation and the failure to
conform to it even though the supplier did not act
fraudulently, recklessly, or negligently in making the
representation.
§2307.78(A)(1) and (2); Doane v. Givaudan Flavors Corp., 184 Ohio
App.3d 26, 34, 919 N.E.2d 290 (2009).
To prove negligence, plaintiffs must show that Wal-Mart owed
them a duty, that Wal-Mart breached that duty, and that the breach
proximately caused injury to the plaintiffs.
Menifee v. Ohio
Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707
(1984).
There is no evidence of any negligent act on the part of
Wal-Mart so as to support liability under §2307.78(A)(1). There is
no evidence that Wal-Mart did anything other than sell the hand
mixer to Mrs. Thompson. Defendants have submitted the affidavit of
Cindy Hay, Wal-Mart’s Senior Manager for Home Strategy. Doc. 37-4.
Hay states in her affidavit that Wal-Mart was strictly the retailer
of the mixer.
Hay Aff. ¶ 5.
Wal-Mart was not the manufacturer of
the mixer, did not design the mixer, did not alter or modify the
mixer,
made
no
representations
regarding
the
mixer’s
use
or
performance, did not prepare or offer any warnings separate and
apart from those issued by the manufacturer, and made no express or
implied warranties about the mixer.
Hay Aff. ¶¶4, 6-10.
Wal-Mart
had no knowledge or notice of any defects relative to the mixer
prior to the filing of this action.
Under
the
derivatively
OPLA,
liable
Wal-Mart,
for
any
as
Hay Aff. ¶ 11.
a
negligent
26
supplier,
acts
of
can
the
be
held
defendant
manufacturers, such as a defect in manufacture or design or the
sufficiency
of
the
instructions
or
warnings,
only
if
the
manufacturers are not subject to judicial process in the state or
are insolvent, or if Wal-Mart owns or is owned by a manufacturer,
created or furnished the design or formulation for the product to
the manufacturer, altered, modified or failed to maintain the
product, marketed the product under its own label, or failed to
timely respond to a written request from the plaintiff to disclose
the name and address of the manufacturer of the product.
Rev. Code §2307.78(B).
See Ohio
There is no evidence that any of these
circumstances were present in the instant case.
There
is
also
no
evidence
that
Wal-Mart
or
any
of
its
employees made any representations to Mrs. Thompson when she
purchased the hand mixer which would establish liability under
§2307.78(A)(2). Mrs. Thompson testified at her deposition that she
did not speak to any Wal-Mart employee about the mixer when she
purchased it, and that no one at Wal-Mart made any representations
to her concerning how the product would function.
Thompson Dep.
pp. 41-42.
Wal-Mart is entitled to summary judgment on the fifth cause of
action.
G. Claims under the CSPA
In the tenth cause of action, plaintiffs have alleged claims
against
the
defendants
under
the
CSPA.
The
CSPA
prohibits
suppliers from committing either unfair or deceptive consumer sales
practices
(as
listed
in
§1345.02)
or
practices (as described in §1345.03).
unconscionable
acts
or
“In general, the CSPA
defines ‘unfair or deceptive consumer sales practices’ as those
that mislead consumers about the nature of the product they are
27
receiving, while ‘unconscionable acts or practices’ relate to a
supplier manipulating a consumer’s understanding of the nature of
the transaction at issue.”
Johnson v. Microsoft Corp., 106 Ohio
St.3d 278, 287, 834 N.E.2d 791 (2005).
The CSPA applies to
consumer transactions, including the sale of an item of goods to an
individual for purposes that are primarily personal, family, or
household.
See Ohio Rev. Code §1345.01(A).
Plaintiffs do not
address defendants’ arguments concerning the CSPA claims in their
memorandum contra defendants’ motion for summary judgment on these
claims. There is no evidence in the record that defendants engaged
in any unfair or deceptive act or practice, as described in Section
1345.02(A), or any unconscionable act or practice as described in
Section 1345.03(A).
Defendants are entitled to summary judgment on
plaintiffs’ claims under the CSPA.
H. Common Law Product Liability Claims
Defendants argue that the common law product liability claims
asserted in causes of action six through nine, thirteen and
fourteen, are product liability claims within the meaning of Ohio
Rev. Code §2307.71(13) and are preempted by the OPLA. The OPLA was
amended effective April 7, 2005, to state that §§2307.71 to 2307.80
“are intended to abrogate all common law product liability claims
or causes of action.”
Ohio Rev. Code §2307.71(B).
In uncodified
commentary contained in 2004 S.B. 80, the General Assembly stated
in regard to §2307.71(B) that
it was “intended to supersede the
holding of the Ohio Supreme Court in Carrel v. Allied Prods. Corp.
(1997), 78 Ohio St.3d 284, that the common-law product liability
cause of action of negligent design survives the enactment of the
Ohio Product Liability Act, sections 2307.71 to 2307.80 of the
Revised Code, and to abrogate all common law product liability
28
causes of action.”
Courts which have addressed the issue have concluded that the
OPLA preempts common law product liability claims.
See Hale v.
Enerco Group, Inc., No. 1:10-CV-867-DAP, 2011 WL 49545 at *7 (N.D.
Ohio 2011); Mitchell v. Proctor & Gamble, No. 2:09-cv-426, 2010 WL
728222 at **2-4 (S.D.Ohio March 1, 2010) Moeller v. Auglaize Erie
Machine Co., No. 2-08-10 (3rd Dist.), 2009 WL 161784 at *6 (Ohio
App. Jan. 26, 2009); Miles, 612 F.Supp.2d at 917-924; Stratford v.
SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965 at *7
(S.D. Ohio June 17, 2008) Routzahn v. Garrison, No. 21190 (2nd
Dist.), 2006 WL 1984498 at *10 (Ohio App. July 14, 2006).
Plaintiffs’
sixth
cause
of
action,
breach
of
implied
warranties, and plaintiffs’ seventh cause of action, breach of
express warranties, fall within the definition of a “product
liability claim,” which expressly includes “[a]ny failure of [the]
product to conform to any relevant representation or warranty.”
§2307.71(13)(c). These warranty claims are preempted by the OPLA.
Miles, 612 F.Supp.2d at 922-924.
Plaintiffs’ claim for common law product liability, their
eighth cause of action, also alleges acts which are addressed under
the OPLA.
Defective manufacture and construction are included
under §2307.74.
Defects in design and formulation are included
under §2307.75.
Defects due to inadequate warning or instruction
are contained in §2307.76.
Defects due to nonconformance with a
manufacturer’s representations are addressed in §2307.77.
The
eighth cause of action is therefore preempted, as is plaintiffs’
ninth cause of action for strict product liability.
In their thirteenth cause of action, plaintiffs allege a claim
for breach of express or implied contract against Wal-Mart.
29
Plaintiffs allege that Wal-Mart represented that the hand mixer was
not unreasonably dangerous, inherently dangerous or defective. The
fact that this claim is pleaded as a breach of contract claim is
not controlling, as under Ohio law, it is the substance of the
claim, not the manner in which it is pleaded, that determines how
it is treated.
See Lawyers Coop. Publ’g Co. v. Meuthing, 65 Ohio
St.3d 273, 277-78, 603 N.E.2d 969 (1992).
The claim asserted in
the thirteenth cause of action is encompassed within the OPLA,
which states that a supplier is liable if the plaintiff establishes
that the product “did not conform, when it left the control of the
supplier in question, to a representation made by the supplier, and
that representation and the failure to conform to it were a
proximate cause of harm for which the claimant seeks to recover
compensatory damages.”
Ohio Rev. Code §2307.78(A)(2).
Therefore,
the thirteenth cause of action is preempted by the OPLA.
Finally, plaintiffs’ fourteenth cause of action asserts a
claim of negligence, stating that the defendants had a duty to
provide a product to consumers that was not unreasonably or
inherently dangerous or defective, and that defendants breached
this duty. This cause of action falls within the scope of the OPLA
and is preempted.
Even if plaintiffs’ common law causes of action are addressed
on the merits, defendants are entitled to summary judgment on those
claims for the reasons stated above in addressing those same claims
under the OPLA.
plaintiffs’
Defendants are entitled to summary judgment on
causes
of
action
six
through
nine,
thirteen
and
fourteen.
I. Loss of Consortium
A loss of consortium claim is a derivative claim that can be
30
maintained only if the primary cause of action is proven.
Vinicky
v. Pristas, 163 Ohio App.3d 508, 513, 839 N.E.2d 88 (2005)(citing
Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93, 585 N.E.2d 384
(1992)).
Since this court has determined that defendants are
entitled to summary judgment on all of Mrs. Thompson’s substantive
claims, defendants are also entitled to summary judgment on the
twelfth cause of action, Mr. Thompson’s loss of consortium claim.
III. Motion to Exclude Expert Testimony
In light of the court’s ruling on the motion for summary
judgment, this court need not address defendants’ motion in limine
and it is denied as moot.
IV. Conclusion
In accordance with the foregoing, defendants’ motion in limine
(Doc. 39) is denied as moot.
Defendants’ motion for summary
judgment (Doc. No. 37) is granted.
The clerk is instructed to
enter
the
final
judgment
in
favor
of
defendants
on
plaintiffs’ claims.
Date: September 28, 2011
s/James L. Graham
James L. Graham
United States District Judge
31
all
of
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