Axline v. 3M Company

Background

Nancy Axline alleged that she underwent left total hip replacement surgery in Ohio on April 21, 2009. She alleged that a Bair Hugger used during the surgery caused a joint infection around the artificial joint, requiring multiple additional procedures in Ohio.

Axline’s complaint asserted fourteen counts: negligence; strict liability for failure to warn and defective design or manufacture; breach of express warranty; breach of implied warranty of merchantability under Ohio law; four Minnesota consumer-protection claims; an Ohio consumer-protection claim; negligent misrepresentation; fraudulent misrepresentation; fraudulent concealment; loss of consortium; and unjust enrichment.

The defendants moved under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings on all claims. A Rule 12(c) motion is evaluated under the same standard as a motion to dismiss for failure to state a claim. Axline opposed the motion, argued that Minnesota choice-of-law rules and substantive law should apply, and alternatively requested permission to amend her complaint.

Choice of Law

The court applied the procedures established for cases directly filed in the District of Minnesota as part of the Bair Hugger multidistrict litigation. Those procedures directed the court to use the choice-of-law rules of the place where the case would have been filed if direct filing had not been available when the complaint identified the plaintiff’s residence, the surgery’s date and location, and the appropriate venue.

Axline’s complaint identified Ohio as her residence, stated that the surgery occurred in New Albany, Ohio, and stated that she would have filed the case in the United States District Court for the Northern District of Ohio. The court therefore applied Ohio choice-of-law rules. Applying those rules, the court held that Ohio substantive law governed because the injury occurred in Ohio and the parties had not shown that another state had a more significant relationship to the dispute.

Claims and Disposition

The court concluded that Ohio’s Product Liability Act abrogated common-law product-liability claims. It therefore dismissed Counts 1, 2, 3, 10, 11, and 12: negligence; strict liability; breach of express warranty; negligent misrepresentation; fraudulent misrepresentation; and fraudulent concealment.

The court also dismissed Count 9, Axline’s claim under the Ohio Consumer Sales Practices Act, because the claim was based primarily on alleged product liability and Axline did not argue that the Product Liability Act permitted it. The court dismissed Count 14, unjust enrichment, for the same general reason: the claim sought recovery based on alleged physical injuries and emotional distress from the product.

The court declined to dismiss Counts 5 through 8, which asserted claims under four Minnesota consumer-protection statutes. The defendants relied partly on a ruling in another case, but the court explained that the earlier ruling involved evidence considered on summary judgment, and that evidence outside the pleadings could not be considered on this Rule 12(c) motion. The defendants also cited no authority supporting dismissal of the Minnesota claims based on Ohio public policy or on the fact that the injury occurred outside Minnesota.

Axline had voluntarily dismissed Count 4, breach of implied warranty of merchantability, and Count 13, loss of consortium. The order listed both counts among those dismissed.

The court denied Axline’s request for leave to amend because the request did not comply with Local Rule 15.1. She did not provide a proposed amended complaint or a red-lined version showing the proposed changes.

Order

The court granted the defendants’ motion for judgment on the pleadings in part. It dismissed Counts 1, 2, 3, 4, 9, 10, 11, 12, 13, and 14, and denied Axline’s request for leave to amend. The order did not state that any dismissal was with or without prejudice.