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Lefker v. I-Flow Corp.

United States District Court for the Southern District of Ohio, Western Division

November 16, 2010, Decided; November 17, 2010, Filed

NO. 1:10-CV-00350



This matter is before the Court on Defendant's Motion to Dismiss Third and Fifth Causes of Action (doc. 7), Plaintiffs' opposition thereto (doc. 11) and Defendant's reply in support thereof (doc. 13). The Court heard arguments on the motion on November 10, 2010. For the following reasons, the Court DENIES Defendant's motion (doc. 7).

I. Background

In this diversity action, Plaintiff Thomas Lefker seeks damages for injuries allegedly caused  [*2] by the use of a pump manufactured by Defendant I-Flow that was used to dispense pain medication on his joint after shoulder surgery in 2007 and again in 2008 (doc. 1). He alleges that he developed chondrolysis as a result of the continuous infusion of pain medication on his shoulder joint via the I-Flow pump after the two surgeries, which will require additional surgery, including a complete shoulder joint replacement (Id.). Plaintiffs' complaint includes claims for strict liability, negligence, breach of warranty, loss of consortium and punitive damages (Id.).

With respect to the breach of warranty claim, Defendant contends that it is precluded by Ohio's product liability act. Specifically, Defendant reads the breach of warranty claim as being a claim for the implied breach of warranty of merchantability and fitness for particular use, and Ohio's Product Liability Act, O.R.C. 2307.71 et seq., preempts any UCC-based claims for breach of implied warranty of merchantability or intended use (doc. 7, citing Barrett v. Waco Int'l, 123 Ohio App. 3d, 1 702 N.E.2d 1216, 1997 Ohio App. LEXIS 3680 (8th App. Dist. 1997)("Ohio product liability statutes preempt warranty claims concerning products  [*3] which seek damages for bodily injury"); Luthman v. Minster Supply Co., 2008 Ohio 165, 2008 Ohio App. LEXIS 139 (3rd App. Dist. 2008) ("Product liability claims are subject to the provisions in R.C. 2307.71 to R.C. 2307.79")).

In response, Plaintiffs note that Ohio's Product Liability Act does not preclude breach of express warranty claims but, instead, codified such claims at O.R.C. § 2307.77 (doc. 11, citing, inter alia, White v. DePuy, Inc., 129 Ohio App. 3d 472, 485, 718 N.E.2d 450 (Ohio Ct. App. 1998)("The common law breach of express warranty was codified at R.C. 2307.77.")). Plaintiffs contend that their complaint raises a claim for breach of express warranty under the Product Liability Act and not a claim for breach of implied warranty under the UCC as Defendant asserts. Furthermore, Plaintiffs note that their complaint is virtually identical to all of the other I-Flow cases that have come before the Court, each of which has survived in its entirety, even through summary judgment, up until the cases settled (Id., citing Schott v. I-Flow Corp., 1:08-cv-00323; West v. I-Flow Corp., 1:09-cv-00098; Mitchener v. I-Flow Corp., 1:09-cv-00155; and Muzik v. I-Flow Corp., 1:08-cv-818). If, however, the Court  [*4] finds that Plaintiffs did not sufficiently plead a violation of an express warranty, Plaintiffs argue that the proper remedy is to allow them to amend their complaint, not to dismiss the claim.

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2010 U.S. Dist. LEXIS 121624 *; 2010 WL 4806771



warranty, punitive, pump, notice, pain, chondrolysis

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Torts, Products Liability, Theories of Liability, Breach of Warranty