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White v. DePuy8/17/1998
are insufficient to raise a question of material fact as to whether the polyethylene cup liner was a defect that proximately caused Gloria White's injuries. Although the recall announcement by DePuy may be evidence of a defect, it does not support a finding that a particular defect proximately caused White's injury. See State Farm Fire & Cas. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 67, 523 N.E.2d 489, 493-495 Moreover, since someone threw the prosthesis hip away and since Fox acknowledges that he is not an expert in analyzing the failure of hip prostheses, Fox's testimony is insufficient to support a finding that the polyethylene cup liner of the hip was a defect that proximately caused White's injury. Therefore, since the Whites failed to present expert testimony or other evidence that demonstrates a genuine issue of material fact as to whether a particular defect proximately caused Gloria White's injury, the trial court properly granted summary judgment in favor of DePuy. See id at 8, 523 N.E.2d at 495-496.
The Supreme Court of Ohio has held that the common-law cause of action for negligent design "survives the enactment of the Ohio Products Liability Act" even though the act does not specifically mention negligent design. Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d 795, paragraph one of the syllabus. Based upon this holding, the majority opinion in the present case finds that "the common-law cause of action of implied warranty in tort continues to exist even after the enactment of the Ohio Products Liability Act in 1988." However, I believe, as outlined in Justice Cook's persuasive dissent in Carrel, that the Whites' claims for personal injuries allegedly caused by a defective product are exclusively governed by Ohio's products liability act. See Nadel v. Burger King (1997), 119 Ohio App.3d 578, 585, 695 N.E.2d 1185, 1189-1190; Barrett v. Waco Internatl., Inc. (1997), 123 Ohio App.3d 1, 702 N.E.2d 1216. Therefore, I concur in judgment only with the portion of the majority's opinion that affirms the trial court's decision denying the Whites' motion for summary judgment.
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