Federal Court Holds State Product Liability Act Trumps other Causes of Action, Including the State's Consumer Fraud Act
We defense lawyers have grown so accustomed to plaintiffs trying to repackage a products liability claim as one for consumer fraud that we sometimes forget to check a state's products liability statute for potential defenses when the complaint fails to mention it and instead cites the state's consumer fraud act. But by failing to look at the product liability statute, we may be passing up an important defense, as was demonstrated in Mitchell v. Proctor & Gamble, 2010 WL 728222 (S.D. Ohio Mar. 1, 2010).
The plaintiff in Mitchell brought a putative class action against the maker of an over-the-counter heartburn medicine, Prilosec OTC. The plaintiff, who said he was the only one who became ill after a buffet-style dinner party, claimed that taking Prilosec OTC predisposed consumers to contracting food-borne illnesses. His class was defined as all consumers of Prilosec OTC from 2004 to the present. He asserted causes of action for strict liability failure to warn, negligent failure to warn, violations of Ohio's Consumer Sales Practices Act, breach of express warranty, and breach of implied warranty.
The court first analyzed the defendants' argument that the entire action was preempted by Ohio's Products Liability Act. The OPLA defined a "products liability claim" as a civil claim seeking recovery for compensatory damages from a manufacturer for death, personal injury, emotional distress, or property damage arising from the product's design, any warning or instruction, or the product's failure to conform to a warranty. Id. at *2-*3. The OPLA had eliminated all common-law product liability causes of action.
The plaintiff sought recovery for "treatments for food-borne illnesses," "the purchase price of the product," and the difference between the market value of the product and its actual value. But the court held that "[plaintiff] cannot separate out his claims from the purview of the OPLA simply by claiming only economic losses. His claims . . . are products liability claims. And the injury he is alleged to have suffered relates directly to that product." Id. at *4.
The court also noted that there was a long line of authority holding that where a plaintiff used the consumer fraud statute (the OCSPA) to assert claims that were primarily rooted in products liability claims, the OPLA preempted those claims, too. Id. Accordingly, the court dismissed all of plaintiff's claims without prejudice for him to plead a proper claim under the OPLA, which he had not previously cited. Thus, an unpled product liability statute proved to be the Defendant's best weapon to defeat a host of consumer fraud claims.
In dicta, the court also commented on the inadequacy of the factual pleadings under the Rule 8 standard of Twombly/Iqbal. Plaintiff alleged that he attended a dinner, that he had been taking Prilosec, and that he was the only one who became sick. That, the court held was not enough:
Nowhere in [plaintiff's] factual allegations does he connect his assertion that Prilosec OTC increase the risk of foodborne illness with the circumstances surrounding his illness. Thus, his Amended Complaint is full of "naked assertions" that are lacking "further factual enhancement." This Court cannot make inference upon inferences to provide the factual enhancement to [plaintiff's] claims.
Id. at *5 (citations omitted).
Ultimately, the court held that plaintiff should have another chance to plead an OPLA claim with sufficient factual particularity. But it was clear from Mitchell that both the common law and OCSPA claims were preempted -- proving once again that it pays to check statutes that are not cited in the complaint when making decisions about motions to dismiss and affirmative defenses.
