White v. DePuy8/17/1998
because " here are striking similarities in the problems reported to Defendant DePuy, Inc. and the description by Dr. Fox of the problems occurring in the cup liner inserted in Plaintiff, Gloria White."
Summary judgment is appropriate when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds construing the evidence in favor of the nonmoving party could reach but one conclusion and that conclusion is adverse to the nonmoving party. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883-884; Civ.R. 56(C). The burden of showing that no genuine issue of material fact exists falls on the party moving for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264, 274-275; Shaffer v. Fite (1993), 90 Ohio App.3d 373, 375, 629 N.E.2d 483, 484-485. To avoid summary judgment, the nonmoving party must "set forth specific facts which demonstrate that there is a genuine issue of material fact for trial." Civ.R. 56(E); Albritton v. Neighborhood Centers Assn. (1984), 12 Ohio St.3d 210, 211, 12 OBR 295, 295-296, 466 N.E.2d 867, 868-869; Schlack v. CSX Transp. (Feb. 5, 1996), Warren App. No. CA95-09-092, unreported, at 4, 1996 WL 42333. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-140.
Our standard of review for summary judgment is the same as that of the trial court. We review cases de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157-1158, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411s413-414. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. We also follow the standards set forth in Civ.R. 56(C). See Wilhelm v. Heritage Mgt. Co. (Jan. 26, 1988), Butler App. No. CA97-07-144, unreported, at 3, 1998 WL 24342, quoting Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E 2d 24, 26 ("`The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * The motion must be overruled if reasonable minds could find for the party opposing the motion.'").
The Whites' claims against DePuy sound in products liability and, therefore, are covered by Ohio's Products Liability Act, which is codified at R.C. 2307.71 to 2307.80 and applies to " ny recovery of compensatory damages based on a product liability claim." R.C. 2307.72(A). A "product liability claim" is defined to include (1) civil claims to recover compensatory damages from a manufacturer for physical injury to a person that "allegedly arose from * * * he design, formulation, production, construction, creation, assembly, rebuilding, testing or marketing of that product," and (2) claims that a product is defective because it fails to "conform to any relevant representation." R.C. 2307.71(M). Such claims must allege other than economic damages. LaPuma v. Collinwood Concrete (1996), 75 Ohio St.3d 64, 661 N.E.2d 714, syllabus; R.C. 2307.71(M). We now address the claims brought by the Whites against DePuy.
1. Breach of Implied Warranty
Under this claim, the Whites allege that DePuy has breached its implied warranty that the liner is "free of all defects and safe for its intended use." "Implied warranty in tort" is a common-law cause of action that imposes liability upon a manufacturer or a seller for breach of an implied representation that a product is "of good and merchantable quality, fit and safe for its ordinary intended use * * *." See 76 Ohio Jurisprudence (1987) 470, Products
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