OPINION AND ORDER
Plaintiff in this diversity action asserts several product liability claims under Ohio law, arguing her ingestion of a prescription drug, metoclopramide, caused her to develop a neurological system disorder known as tardive dyskinesia. The Defendants that manufacture the brand-name version of metoclopramide (“Brand Defendants”), move for summary judgment on the ground that Plaintiff never ingested brand-name metoclopramide; rather, she ingested only the generic version of metoclopramide. ECF Nos. 70 and 72. For the following reasons, the Court grants the Brand Defendants’ summary judgment motions.
I. BACKGROUND
A. The Parties
Plaintiff Donna Hogue is an individual resident and citizen of Ohio. The Brand Defendants Schwartz Pharma, n/k/a UCB, Inc. (“Schwartz”), Pfizer, Inc. (“Pfizer”), and Wyeth LLC (“Wyeth”) manufactured Reglan®, the brand-name version of metoclopramide. The parties stipulate Ms. Hogue never ingested Reglan®; rather, she ingested only the generic version of metoclopramide, which the Brand Defendants did not manufacture.
In late 2000, Ms. Hogue’s physician prescribed Reglan® to treat Ms. Hogue’s abdominal pain and digestive problems. Ms. Hogue then began to take generic metoclopramide and continued to do so until about August 2009. By March 2009, Ms. Hogue was exhibiting abnormal movements which she avers were caused by her ingestion of metoclopramide. She specifically asserts her ingestion of metoclopramide caused her to develop tardive dyskinesia, a neurological movement disorder.
Metoclopramide is intended for short term treatment of gastroesophageal reflux and recurrent diabetic gastric stasis. Short term means twelve weeks or less. Patients taking metoclopramide for longer periods face an increased risk they will develop tardive dyskinesia. The thrust of Ms. Hogue’s claims is that despite mounting evidence, the Brand Defendants failed to warn doctors and patients of the degree of risk associated with long term ingestion of metoclopramide.
Ms. Hogue filed this action on September 9, 2010, asserting the following claims under Ohio law: (1) negligence; (2) strict liability; (3) breach of warranties; (4) misrepresentation and fraud; (5) negligence per se; and (6) gross negligence.
The standard governing summary judgment is set forth in Federal Rule of Civil Procedure 56(a), which provides: “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.” Fed.R.Civ.P. 56(a).
The Court may grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc.,
Thus, 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.’ ” Hamad v. Woodcrest Condo. Ass’n,
III. DISCUSSION
The Brand Defendants advance essentially two grounds for summary judgment. First, the Brand Defendants argue they are entitled to summary judgment because the Ohio Product Liability Act (“OPLA” or “Act”) requires a plaintiff to prove the defendant manufactured the product that caused her injuries. Hence, the Brand Manufacturers contend that because they did not manufacture the generic metoclopramide Ms. Hogue ingested, Ms. Hogue’s claims against them fail as a matter of law. Second, the Brand Manufacturers maintain that even if the OPLA does not govern this matter, the result is the same under Ohio common law.
Ms. Hogue argues that the Brand Defendants are subject to liability for the dissemination of false information regardless of whether they manufactured the actual pills she ingested. In addition, Ms. Hogue maintains the law upon which the Brand Defendants rely is no longer controlling in light of PLIVA v. Mensing, — U.S.-,
At the outset, the Court notes the parties in this diversity action agree that Ohio law governs this matter. Choice of law principles confirm their agreement given Ms. Hogue’s alleged injuries occurred in Ohio. See Miles v. Raymond Corp.,
a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following:
(a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product;
(b) Any warning or instruction, or lack of warning or instruction, associated with that product;
(c) Any failure of that product to conform to any relevant representation or warranty.
Ohio Rev.Code § 2307.71(A)(13). In addition, under the OPLA, a manufacturer may be held liable only if it “designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm for which the claimant seeks to recover compensatory damages.” Ohio Rev.Code § 2307.73(A)(13) (emphasis added). The Act further provides:
Proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product in the product liability claim. A manufacturer may not be held liable in a product liability action based on market share, enterprise, or industrywide liability.
Ohio Rev.Code § 2307.73(C) (emphasis added).
Ms. Hogue does not cite, let alone discuss, the OPLA or the limits it places on her product liability claims. Nonetheless, she ostensibly argues those limits do not apply because Brand Defendants disseminated false and misleading information which gives rise to claims under common law theories of fraud and negligent misrepresentation. Thus, she suggests “it is the information that is at issue, not the actual pill consumed.” Pl.’s Resp. PAGEID # 859, ECF No. 76.
The Brand Defendants note that the “information” to which Ms. Hogue refers is about the product that allegedly caused her injuries, metoclopramide, and her claim therefore falls within the purview of the OPLA. They also emphasize that in her complaint, Ms. Hogue repeatedly asserts that her ingestion of metoclopramide caused her injuries.
The OPLA abrogates “all common law product liability claims or causes of action.” Ohio Rev.Code § 2307.71(B) (emphasis added). It broadly defines product liability claims as including those where the alleged injuries arise from the “formulation” of the product or “[a]ny warning or instruction, or lack of warning or instruction, associated with that product.” Ohio Rev.Code § 2307.71(A)(13)(b) (emphasis added). Ms. Hogue’s claims fall within those categories. The substance of her claims is that despite their knowledge of growing evidence, the Brand Defendants failed to warn doctors and patients of the degree of risk associated with long term ingestion of metoclopramide. See Miles,
Nonetheless, courts have reached differing conclusions as to whether the OPLA abrogates claims sounding in fraud and misrepresentation, often with little analysis. Compare Krumpelbeck v. Breg, Inc.,
In a well reasoned opinion, Judge Graham concluded the OPLA does not necessarily preclude all claims of fraud and misrepresentation. Stratford v. Smith-Kline Beecham Corp., No. 2:07-cv-639,
Glassner illustrates the difference between active deception and failure to warn. Glassner was a wrongful death action against tobacco companies. The plaintiff asserted the defendants “sought to ‘mislead, confuse, and conceal from the public the true dangers associated with smoking cigarettes,’ ” and “engaged in an ongoing conspiracy to actively misrepresent, omit and conceal the truth about nicotine in order to sustain the addictions of existing cigarette smokers and to hook thousands of new smokers every day, including Plaintiffs decedent” Glassner,
With regard to his allegations of common law fraud, Glassner does not bother to delineate the bases for his claims, again making it difficult to determine whether preemption applies. Glassner alleges that Defendants “conducted an aggressive marketing and advertising campaign intended to induce foreseeable users to purchase its tobacco product. Such advertising occurred in print media, on television, radio, on billboards and by other means.” Glassner also alleges that Defendants misled the public about the hazards of smoking through channels other than advertising and promotion, such as newspaper and magazine articles, press releases, and congressional testimony. Thus, we find that Glassner’s claims of fraud based upon fraudulent misrepresentation and concealment are preempted to the extent that they are predicated on a duty to issue additional or clearer warnings through advertising and promotion. However, we find that Glassner’s fraud claims premised on a general “duty not to deceive” rather than a “duty based on smoking and health” are not preempted by the Act.
The Plaintiffs’ allegations of fraudulent omission are essentially allegations that GSK failed to properly warn physicians and consumers of the risk associated with taking Paxil during pregnancy. Although the allegations of fraud involving omissions on the part of GSK are sufficiently pled under Rule 9(b), they are preempted by the Ohio Rev.Code § 2307.77 governing the failure to warn.
Here, Ms. Hogue’s fraud claims are based on a theory of omission and concealment. See Pl.’s Compl. PAGEID #24-25, ECF No. 2. In this regard her fraud claims are substantially the same as those the court found abrogated in Stratford. The substance of Ms. Hogue’s fraud claim is unmistakably failure to warn. Following the reasoning of Stratford, the Court concludes the OPLA abrogates Ms. Hogue’s claims for misrepresentation and fraud.
Ms. Hogue’s remaining two arguments merit little discussion. First, the Mensing decision has no bearing whatsoever on the issue whether the Brand Defendants may be held liable under Ohio Product liability law for injuries arising from the ingestion of generic metoclopramide they did not manufacture. Second, the OPLA precludes Ms. Hogue’s argument that the Brand Manufacturers are subject to liability as inventors or primary manufacturers of metoclopramide as neither theory is an exception to the rule that a plaintiff must prove her injuries were caused by the actual product the defendant manufactured.
In sum, the OPLA abrogates all of Ms. Hogue’s common law claims. Under the OPLA, the Brand Defendants cannot be held liable because it is undisputed they did not manufacture the metoclopramide which Ms. Hogue ingested.
IV. DISPOSITION
Based on the above, the Court GRANTS the Brand Defendants’ motions for summary judgment. ECF Nos. 70 and 72.
IT IS SO ORDERED.
Notes
. Specifically, the OPLA makes no exception for a manufacturer that formulated the type of product in question, and expressly precludes liability based on market share:
Proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product in the product liability claim. A manufacturer may not be held liable in a product liability action based on market share, enterprise, or industrywide liability.
Ohio Rev.Code § 2307.73(C).
. This conclusion is further supported by the decision of the Sixth Circuit Court of Appeals in Smith v. Wyeth, Inc.,