Summary
explaining that negligent misrepresentation claims based on allegedly defective products are abrogated by the OPLA
Summary of this case from Cont'l Cas. Co. v. Vertiv Servs.Opinion
Case No.: 2:12-cv-613
10-02-2014
BENJAMIN HENDRICKS, Plaintiff, v. PHARMACIA CORPORATION, et al., Defendants.
Magistrate Judge Deavers
ORDER
On June 4, 2014, the United States Magistrate Judge issued a Report and Recommendation recommending that Defendants' Motions to Dismiss be GRANTED. (Docs. 24 and 26). The parties were advised of their right to object to the Report and Recommendation. This matter is now before the Court on Plaintiff Hendricks' Objections to the Report and Recommendation as to the Pfizer Defendants (Doc. 51) and the Mylan Defendants (Doc. 52). The Defendants have responded and the Objections are now ripe for review. The Court will consider the matter de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiffs' Objections present the same issues presented to and considered by the Magistrate Judge in the Report and Recommendation. Specifically, with respect to the Pfizer Defendants, the Magistrate Judge correctly concluded that Plaintiff cannot state a claim against Pfizer under the Ohio Product Liability Act because he did not take a product made, sold, or distributed by the Pfizer Defendants. (Report and Recommendation at 10). Further, the Sixth Circuit recently addressed this issue in In re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 2014 U.S. App. LEXIS 12111 (6th Cir. June 27, 2014), holding that under Ohio law, a plaintiff cannot hold a brand-name drug manufacturer liable for harm allegedly caused by its competitor's generic product. Finally, Plaintiff's reliance on Wyeth v. Levine, 555 U.S. 555 (2009), is misplaced because it provides no support for the "innovator liability" issue presented in this case.
With respect to the Mylan Defendants, the Magistrate Judge correctly concluded that as a generic drug manufacturer, Mylan had a duty of "sameness." Accordingly, Mylan cannot be held liable for failing to change their warning label to include a risk of Stevens-Johnson Syndrome, when it was the same as the brand-name label.
For the reasons stated in the Report and Recommendation, this Court finds that Plaintiff's Objections with respect to each group of Defendants are without merit and are hereby OVERRULED.
The Report and Recommendation, Document 47, is ADOPTED and AFFIRMED. Defendants' Motions to Dismiss are hereby GRANTED and final judgment shall be entered in favor of Defendants.
The Clerk shall remove Documents 24, 26, and 47 from the Court's pending motions list. The Clerk shall terminate this case.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT