defining a loss of consortium claim as the “loss of the benefits that one spouse is entitled to receive from the other or that a child is entitled to receive from his or her parent”
How later courts described this case
- defining a loss of consortium claim as the “loss of the benefits that one spouse is entitled to receive from the other or that a child is entitled to receive from his or her parent”
- requiring pro se plaintiffs to satisfy “basic pleading essentials”
- finding claim for negligence in the manner cigarettes were tested, researched, sold, and promoted fell under the OPLA
- concluding that Ohio law governed the action because plaintiff’s alleged injuries occurred in Ohio
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LUCY JORDAN,
Plaintiff,
v. Case No. 2:24-cv-1248
JUDGE EDMUND A. SARGUS, JR.
SAMSUNG ELECTRONICS OF Magistrate Judge Kimberly A. Jolson
AMERICA, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Samsung Electronics of America, Inc.’s
Motion to Dismiss Plaintiff Lucy Jordan’s Complaint. (Mot., ECF No. 7.) Ms. Jordan also filed a
Motion asking the Court to appoint her counsel and moved for summary judgment, or in the
alternative for a directed verdict. (ECF No. 8.) For the reasons below, the Court GRANTS
Samsung’s Motion to Dismiss (ECF No. 7) and DENIES as moot Ms. Jordan’s Motion (ECF No.
8).
BACKGROUND
I. Factual Background
Ms. Jordan, who is proceeding without the assistance of counsel, brings this diversity
action against Samsung for injuries suffered after a Samsung microwave oven purportedly
exploded in her home. (Compl., ECF No. 1.) Ms. Jordan alleges that the microwave exploded
because of “faulty circuit panels” (Id. PageID 9.) After the microwave “spontaneous[ly]
combust[ed],” Ms. Jordan claims she suffered injuries from a “foul odor,” smoke inhalation, and
“soot exposure.” (Id. PageID 2.) She sought medical treatment for injuries to her “eyes and lungs”
and her “stress induced vertigo.” (Id. PageID 3.) Along with her physical injuries, she seeks
damages for emotional distress from the incident. (Id. PageID 2, 11.) She claims that the explosion
caused her to experience stress, anxiety, and to live in a constant state of worry that other
appliances in her home may also explode. (Id. PageID 11.)
Ms. Jordan attached to her Complaint photographs that allegedly show the burn marks to
the wall and her refrigerator from the microwave. (Compl., PageID 7–8, 73–75.) Because of the
odor, Ms. Jordan disposed of the microwave. (Id.)
The Complaint includes the following causes of action: negligence, strict liability, strict
products liability, and loss of consortium. (Id. PageID 9–11.) She seeks damages in the amount of
$3,500,000.00 to “replace [the] microwave and refrigerator, [to] clean up [her home], [for] medical
bills,” “pain and suffering” and “future pain and suffering.” (Id. PageID 5.)
II. Procedural Background
In its Motion to Dismiss, Samsung asserts that Ms. Jordan’s causes of action are governed
by the Ohio Product Liability Act (“OPLA”). (Mot., PageID 93, 96–98.) Samsung argues that Ms.
Jordan’s complaint should be dismissed for failing to properly plead her claims under the OPLA.
(Id.) Samsung further asserts that even if she had properly pleaded her claims, her factual
allegations fail to state a claim upon which relief can be granted and should be dismissed under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Id.) Samsung also argues that Ms. Jordan’s
loss of consortium claim fails as a matter of law because she alleges only injuries to herself not a
third party. (Id. PageID 98.) Ms. Jordan opposed Samsung’s Motion to Dismiss. (ECF No. 9.)
Ms. Jordan also moved the Court to appoint her counsel and award her summary judgment,
or in the alternative, a directed verdict. (ECF No. 8.) Samsung opposed that Motion. (ECF No. 10.)
Both Motions are now ripe for the Court’s review.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). While Rule 8(a)(2) requires a
pleading to contain a “short and plain statement of the claim showing that the pleader is entitled to
relief,” in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(clarifying plausibility standard from Twombly). Further, “[a]lthough for the purposes of a motion
to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound
to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550
U.S. at 555) (internal quotations omitted).
A plaintiff proceeding without counsel must still satisfy the basic pleading requirements
but is entitled to a liberal construction of their pleadings. Mezibov v. Allen, 411 F.3d 712, 716 (6th
Cir. 2005); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (describing the liberal and less
stringent pleading requirements for pro se litigants); Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989) (requiring pro se plaintiffs to satisfy “basic pleading essentials”). The complaint “must
contain either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.” Mezibov, 411 F.3d at 716.
ANALYSIS
Samsung argues that Ms. Jordan’s common law claims are abrogated by the OPLA and
should be dismissed. (Mot., PageID 96–98.) Even if Ms. Jordan properly pleaded her claims under
the OPLA, Samsung asserts that her factual allegations fail to state a claim upon which relief can
be granted. (Id.)
The Court first addresses the applicable law, and then analyzes each of Ms. Jordan’s causes
of action. Ms. Jordan’ loss of consortium claim is dismissed for failing to state a claim for relief.
Her negligence claim is abrogated by the OPLA, and thus dismissed. Finally, the Court construes
Ms. Jordan’s remaining products liability claim as pled under the OPLA, but dismisses her claim
for failing to state a claim for relief under any of the four applicable provisions of the OPLA.
I. Choice of Law
Neither party disputes that Ohio law governs this diversity action.1 See Muncie Power
Prods. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (explaining that when Ohio
is the forum state, federal courts sitting in diversity apply a balancing test which presumes that
“the law of the place where the injury occurs will be applied to a tort action” unless “another state
has a more significant relationship to the action.”); Hogue v. Pfizer, Inc., 893 F. Supp. 2d 914, 916
(N.D. Ohio 2009) (concluding that Ohio law governed the action because plaintiff’s alleged
injuries occurred in Ohio) (citing Miles v. Raymond Corp., 612 F. Supp. 2d 913, 917 (N.D. Ohio
2009) (same)). The injury giving rise to Ms. Jordan’s claims occurred in Westerville, Ohio.
II. Ms. Jordan’s Loss of Consortium Claim
Ms. Jordan’s claim for loss of consortium alleges that because her microwave exploded,
she now lives in a constant state of worry that interferes with her ability to enjoy life. (Compl.,
PageID 11.) Samsung argues that Ms. Jordan failed to properly plead her loss of consortium claim
because her claim is based on injuries to herself. (Mot., PageID 98.)
Under Ohio law, one has a personal right to the consortium, or “companionship, comfort,
love and solace,” of their spouse, parent, or child. Clouston v. Remlinger Oldsmobile Cadillac, 258
N.E.2d 230, 235 (Ohio 1970) (explaining that one spouse has a cause of action for the loss of
1 Diversity jurisdiction is proper here because Ms. Jordan is a citizen of Ohio and Samsung is a
corporation incorporated in Delaware with its principal place of business in New Jersey. See
Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 664 (6th Cir. 2004) (explaining that diversity
jurisdiction under 18 U.S.C. § 1332 requires complete diversity of citizenship such that no plaintiff
is of the same state as any defendant).
consortium when a person intentionally or negligently injures their spouse); see also Thomson v.
OHIC Ins., 780 N.E.2d 1082, 1085 (Ohio Ct. App. 2002) (defining a loss of consortium claim as
the “loss of the benefits that one spouse is entitled to receive from the other or that a child is entitled
to receive from his or her parent”). When an individual’s spouse, parent, or child is injured by a
third party, that person has a cause of action for damages for their loss of consortium. Id. In other
words, loss of consortium claims are derivative claims. The claims belong “not to the person
suffering a physical injury but to another.” Fehrenbach v. O’Malley, 862 N.E.2d 489, 491 (Ohio
2007). Thus, Ms. Jordan must allege that the microwave injured someone other than herself for
her claim to survive. Because she does not, her loss of consortium claim fails as a matter of law.
Accordingly, Ms. Jordan’s loss of consortium claim is DISMISSED.
III. Ms. Jordan’s Common Law Claims
Samsung argues that Ms. Jordan’s remaining claims should be dismissed as preempted by
the OPLA. (Mot., PageID 96–98.) The OPLA “explicitly eliminate[s] ‘all common law product
liability claims or causes of action.’” Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir. 2010) (quoting
Ohio Rev. Code § 2307.71(B)). The OPLA applies to “any recovery of compensatory, punitive, or
exemplary damages based on a product liability claim.” Hendricks v. Pharmacia Corp., No. 2:12-
cv-00613, 2014 U.S. Dist. LEXIS 76125, at *8 (S.D. Ohio June 4, 2014) (Deavers, M.J.) (quoting
Tolliver v. Bristol-Myers Squibb, Co., No. 1:12 CV 00754, 2012 U.S. Dist. LEXIS 105518 (N.D.
Ohio July 30, 2012)). A product liability claim is defined by statute as one 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” allegedly
resulting from a “manufacturing or design defect, inadequate warning, or nonconformance with
manufacturer representations.” Id. (quoting Ohio Rev. Code § 2307.71(A)(13)).
The OPLA is the exclusive remedy for Ms. Jordan’s remaining claims. Ms. Jordan seeks
compensatory damages for her physical pain and suffering, emotional distress, physical damages,
and loss of consortium. (See Compl.) Her injuries occurred after a microwave purportedly
manufactured and distributed by Samsung exploded exposing her to suffer froma “foul odor,”
smoke, and soot. (Id. PageID 3.) The microwave is a “product” under the OPLA. See Ohio Rev.
Code § 2307.71(A)(12)(a) (defining product as “any object . . . that constitutes personal property
and . . . (i) is capable of delivery . . .[,] (ii) is produced, manufactured, or supplied for introduction
into trade or commerce[,] (iii) is intended for sale or lease to persons for commercial or personal
use.”). As explained below, the conduct that forms the basis for her claims is the same conduct that
the OPLA defines as a “products liability claim.”
A. Negligence
Under Count 1 of her Complaint, Ms. Jordan brings a common law claim for negligence.
To support her claim, Ms. Jordan alleges that her microwave exploded “due to faulty circuit
panels” and that Samsung failed to warn her of the microwave’s potential for “dangerous glitches.”
(Compl., PageID 9–10.)
Ms. Jordan’s negligence claim is abrogated by the OPLA because the actionable conduct
that forms the basis for the claim is the same conduct that the OPLA defines as a “products liability
claim.” See Ohio Rev. Code § 2307.71(A)(13). That conduct includes:
(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). Thus, her negligence claim is a common law products liability
claim abrogated by the OPLA. See Tompkin v. Am. Brands, 219 F.3d 566, 575 (6th Cir. 2000)
(finding claim for negligence in the manner cigarettes were tested, researched, sold, and promoted
fell under the OPLA); Bowles v. Novartis Pharms. Corp., No. 3:12-cv-145, 2013 U.S. Dist. LEXIS
134350, at *20 (S.D. Ohio Sep. 19, 2013) (Rice, J.) (granting summary judgment for defendant
after concluding that negligent manufacture and negligent failure to warn were subject to the
OPLA); Hendricks, 2014 U.S. Dist. LEXIS 76125, at *9 (finding common law failure to warn,
defect in design or manufacture, negligence, gross negligence, and negligent misrepresentation
claims abrogated by the OPLA).
B. Strict Liability and Strict Products Liability
Ms. Jordan also raises strict liability and strict products liability claims. (Compl., PageID
10.) Both claims are preempted by the OPLA. See Mitchell v. Proctor & Gamble, No. 2:09-CV-
426, 2010 U.S. Dist. LEXIS 17956, at *9 (S.D. Ohio Mar. 1, 2010) (Marbley, J.) (“The OPLA has
been held to abrogate claims for strict products liability.”); Kennedy v. Depuy Orthopaedics, Inc.,
No. 1:14cv25, 2015 U.S. Dist. LEXIS 28480, at *3 (S.D. Ohio Mar. 9, 2015) (Barrett, J.)
(dismissing strict liability claim as abrogated by OPLA).
Samsung argues that because Ms. Jordan failed to plead her negligence, strict liability, and
strict products liability under the OPLA, the Court should dismiss her claims. (Mot., PageID 97–
98.) Claims “authorized by the OPLA should be pled with reference to the applicable provision of
the OPLA.” Mitchell, 2010 U.S. Dist. LEXIS 17956, at *11 (dismissing product liability claims
without prejudice and granting leave for plaintiffs to amend those claims to be brought with
reference to their applicable OPLA provision); Perry v. Ethicon, Inc., No. 2:20-cv-6592, 2022 U.S.
Dist. LEXIS 56268, at *27 (S.D. Ohio Mar. 29, 2022) (same). But since Ms. Jordan is proceeding
pro se, the Court will construe her Complaint as pleading a claim for products liability under the
OPLA. Hendricks, 2014 U.S. Dist. LEXIS 76125, at *14 (considering pro se plaintiff’s common
law claims as if pled under the OPLA).
The Court addresses whether Ms. Jordan adequately stated a claim for relief under the
OPLA.
IV. Ms. Jordan’s OPLA Product Liability Claim
To survive this Motion to Dismiss, Ms. Jordan’s product liability claim must fall under one
of the four types of claims permitted by the OPLA: (1) manufacturing defect, Ohio Rev. Code §
2307.74; (2) design defect, Ohio Rev. Code § 2307.75; (3) inadequate warning or instructions,
Ohio Rev. Code § 2307.76; and (4) nonconformance with manufacturers’ representations, Ohio
Rev. Code § 2307.77. Tolliver, 2012 U.S. Dist. LEXIS 105518, at *7 (citing Ohio Rev. Code §§
2307.71(B), 2307.74–.77). After analyzing Ms. Jordan’s Complaint, and construing the allegations
in her favor, the Court finds that Ms. Jordan has failed to state a plausible claim for relief under
any of the four applicable provisions.
A. Manufacturing Defect or Design Defect
To plead a manufacturing defect claim under the OPLA, Ms. Jordan must allege that: “(1)
[t]here was, in fact, a defect in the product manufactured and sold by the defendant; (2) such defect
existed at the time the product left the hands of the defendant; and (3) the defect was the direct and
proximate cause of the plaintiffs’ injuries or loss.” Saraney v. TAP Pharm. Prods., No. 1:04 CV
02026, 2007 U.S. Dist. LEXIS 3113, at *20 (N.D. Ohio Jan. 16, 2007) (citation omitted).
Separately, “[t]he OPLA recognizes a design defect claim, “if, at the time [the product] left
the control of its manufacturer, the foreseeable risks associated with its design or formulation . . .
exceeded the benefits associated with that design or formulation.” Tolliver, 2012 U.S. Dist. LEXIS
105518, at *10 (quoting Ohio Rev. Code § 2307.75(A)).
Ms. Jordan alleges that the microwave “spontaneous[ly] combust[ed]” “due to faulty
circuit panels.” (Compl., PageID 2–3, 9.) Samsung argues she has not adequately identified a
manufacturing or design defect and that the pictures of the microwave included in Ms. Jordan’s
Complaint show that Ms. Jordan stored plastic-wrapped items in the microwave, causing it to catch
fire. (Mot., PageID 101; Compl., PageID 73–75.)
Ms. Jordan does not allege that Samsung is the manufacturer of the allegedly faulty
microwave, nor does she put forth any factual allegations to support her claim that the
manufacturing of the microwave was faulty and caused her injuries. She provides no factual
allegations that the alleged design defect existed at the time the product left the hands of the
manufacturer or that it was the proximate cause of her injuries. “The OPLA ‘requires more, even
at the pleading stage,’ than a ‘naked allegation that a product failed.’” Williams v. Bos. Sci. Corp.,
No. 3:23 CV 1409, 2023 U.S. Dist. LEXIS 220371, at *4 (N.D. Ohio Dec. 11, 2023) (quoting O.M.
Through McConnell v. KLS Martin LP, 560 F. Supp. 3d 1084, 1089-90 (N.D. Ohio 2021)).
Even construing the Complaint in the light most favorable to Ms. Jordan, the Court finds
she has not pleaded a plausible manufacturing or design defect claim for relief. The Court need
not accept as true bare legal conclusions that the microwave was faulty. See Hendricks, 2014 U.S.
Dist. LEXIS 76125, at *25 (explaining that plaintiff’s conclusory pleadings failed to state a design
or manufacturing defect claim).
B. Inadequate Warning
A product is defective because of an inadequate warning or instruction, if when it left the
manufacturer’s control, both of the following applied:
(a) The manufacturer knew or, in the exercise of reasonable care, should have
known about a risk that is associated with the product and that allegedly caused
harm for which the claimant seeks to recover compensatory damages; [and]
(b) The manufacturer failed to provide the warning or instruction that a
manufacturer exercising reasonable care would have provided concerning that
risk, in light of the likelihood that the product would cause harm of the type for
which the claimant seeks to recover compensatory damages and in light of the
likely seriousness of that harm.
Ohio Revised Code § 2307.76(A)(1), (A)(2) (applying same standard to post-marketing warning
or instructions). To prevail on a failure to warn claim, Ms. Jordan must prove: “(1) a duty to warn
against reasonably foreseeable risks; (2) breach of this duty; and (3) an injury that is proximately
caused by the breach.” Bowles, 2013 U.S. Dist. LEXIS 134350, at *22 (citations omitted). A
warning is adequate when it “reasonably discloses all inherent risks and if the product is safe when
used as directed.” Rees v. W.M. Barr & Co., No. 2:15-cv-2821, 2017 U.S. Dist. LEXIS 161573, at
*9 (S.D. Ohio Sep. 29, 2017) (Smith, J.). “Ultimately, when an adequate warning is given, the
seller may assume that the warning will be read and followed and the product shall not be
considered defective based on a failure to warn.” Id. (citing Rheinfrank v. Abbott Labs., Inc., 119
F. Supp. 3d 749, 782 (S.D. Ohio 2015) (Dlott, J.)).
Ms. Jordan alleges that the combustion of Samsung microwaves is a “common occurrence”
but Samsung “never bothered to notify” her of this risk. (Compl., PageID 3, 10.) She contends that
Samsung “has a history of faulty equipment and appliances that cause fire[s]” including “their cell
phones.” (Id. PageID 10.) To support her allegations, she argues that other litigants have brought
class action allegations against Samsung seeking damages from the combustion of their Samsung
devices. (Id.; see also PageID 26.) She references news articles discussing class action lawsuits
against Samsung over claims that Samsung refrigerators failed to keep food cold and that Samsung
stoves are susceptible to accidental activation. (Id. PageID 44–46.)
But the allegations above involve different Samsung appliances and different defects.
Allegations that there may have been defects in other Samsung appliances does not support Ms.
Jordan’s claim that her microwave contained inadequate warnings or instructions. Ms. Jordan does
not make allegations regarding the contents or placement of the allegedly inadequate warning label
on her microwave. Without allegations regarding the contents or placement of the warning label,
the Court cannot assess whether the warning adequately disclosed all known risks associated with
the microwave or whether it was placed in reasonably conspicuous place. Nor can the Court
determine whether Ms. Jordan used the microwave as directed. Thus, Ms. Jordan has not pleaded
a plausible claim for relief.
C. Nonconformance with Manufacturer’s Representations
Ms. Jordan’s last potential OPLA claim for nonconformance with the manufacturer’s
representation also must fail. A claim under this section of the OPLA arises if a product “did not
conform when it left the control of its manufacturer, to a representation made by that
manufacturer.” Ohio Rev. Code § 2307.77. A “representation” is defined as “an express
representation of a material fact concerning the character, quality, or safety of a product.” Ohio
Rev. Code § 2307.71(A)(14). To adequately plead such a claim, Ms. Jordan must show that (1) the
manufacturer made a representation about a material fact relating to the character or quality of the
product; (2) the product did not conform to that representation; (3) the plaintiff justifiably relied
on that representation; and (4) the plaintiff’s reliance on the representation was the direct and
proximate cause of the plaintiff’s injuries. Tolliver, 2012 U.S. Dist. LEXIS 105518, at *14; see
also Bowles, 2013 U.S. Dist. LEXIS 134350, at *38 (citing Gawloski v. Miller Brewing Co., N.E.2d
731, 734 (Ohio Ct. App. 1994)).
Here, Ms. Jordan identifies no representations made by Samsung regarding the microwave,
nor how the microwave failed to conform to that representation. Her Complaint contains no factual
allegations to develop a plausible claim for nonconformance with the manufacturer’s
representation. Accordingly, to the extent that she raises a claim under this provision of the OPLA,
her claim fails as a matter of law.
Having reviewed each of the four potential avenues for recovery under the OPLA, the
Court finds that Ms. Jordan has not pled sufficient facts to state a plausible claim for relief under
the OPLA. Accordingly, Samsung’s Motion to Dismiss is GRANTED. (ECF No. 7.)
Since the Court grants Samsung’s Motion and dismisses Ms. Jordan’s claims for failing to
state a claim for relief, her Motion seeking court-appointed counsel, moving for summary
judgment or in the alternative for a directed verdict is DENIED as moot. (ECF No. 8.)
CONCLUSION
For the reasons above, Samsung’s Motion to Dismiss is GRANTED (Mot., ECF No. 7)
and Ms. Jordan’s Complaint is DISMISSED. Ms. Jordan’s Motion for court-appointed counsel
and summary judgment (ECF No. 8) is DENIED as moot.
The Clerk is directed to enter judgment and close this case.
IT IS SO ORDERED.
11/20/2024 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE