Products Liability Law Reporter

A federal district court held that a plaintiff had not fraudulently removed a supplier defendant from a suit arising out of the discharge of a holstered service weapon.

Ohio Highway Patrol trooper Josef Brobst brought an Ohio state lawsuit against Safariland LLC; Maui Acquisition Corp.; Cadre Holdings, Inc.; and Vance Outdoors, Inc., alleging liability for injuries he sustained when his Safariland-holstered weapon discharged into his leg during the course of his employment. The plaintiff alleged claims under the Ohio Products Liability Act (OPLA) and claims for failure to warn, breach of warranty, and contractual warranty.

All the defendants except Vance Outdoors—which the plaintiff claimed was a distributor for Safariland—removed the case to federal court based on diversity jurisdiction. In their notice of removal, the defendants asserted that for purposes of jurisdiction, the plaintiff was an Ohio citizen; Safariland, Maui, and Cadre were citizens of Delaware; and Vance, an Ohio corporation, was fraudulently joined to defeat diversity jurisdiction. The plaintiff moved to remand based on lack of diversity jurisdiction.

Granting the motion, the district court noted that the determinative question is whether the plaintiff’s complaint presents a colorable basis for recovery against Vance. In Ohio, the court said, a supplier may be liable under the OPLA where it was negligent and its negligence proximately caused injury, or the product did not conform to a representation the supplier made when the product left its control and the representation proximately caused the alleged injury. Under the OPLA, the court added, a representation is an express representation of material fact regarding the character, quality, or safety of a product. A supplier under the OPLA is an entity that sells, distributes, leases, prepares, blends, packages, labels, or otherwise participates in placing a product in the stream of commerce. Citing case law, the court agreed with the defendants that a supplier cannot be held liable under the OPLA when it makes no independent representations regarding a product or does not act in a negligent manner.

Applying these principles here, the court found that the plaintiff’s complaint alleges that Vance directly bid for, negotiated, and sold the holster at issue, and that Vance’s answer admitted it was a distributor or supplier to Safariland in Ohio and that it had bid for and distributed guns and holsters, setting prices and negotiating the terms of its contract. Thus, the court concluded that it was at least arguable under Ohio law that Vance fell within the definition of supplier and had the requisite control over the product.

The court also found that the contract between Vance and the state of Ohio colorably constituted an independent misrepresentation. The contract provided that Vance’s deliverables were merchantable and fit for a particular purpose, the court found, adding that the contract also stated the deliverables would perform substantially in accordance with user manuals and technical materials. Citing case law, the court rejected the defense argument that the OPLA requires physical control over the product at any particular point in the supply chain.

Consequently, the court held that the plaintiff had presented a colorable claim against Vance under the OPLA and that the defendants had not established undisputed facts negating the plaintiff’s state law claim of failure to warn and showing fraudulent joinder.

Citation: Brobst v. Safariland LLC, 2023 WL 7299982 (N.D. Ohio Nov. 6, 2023).

Plaintiff counsel: Dennis Fitzgerald and Drew Mihalik, both of Findlay, Ohio; and David Cohen and AAJ member Maxwell Thelen, both of Marietta, Ga.

Comment: In Oglesbee v. Glock, Inc., 2023 WL 7498213 (N.D. Okla. Nov. 13, 2023), Patrick Oglesbee was using a Glock 19 Model Gen 49mm semiautomatic pistol when the pistol fell, struck the ground, and fired, shooting Oglesbee in the leg. He and his wife sued Glock, Inc., alleging manufacturer liability, failure to warn, breach of the implied warranty of fitness for a particular purpose, and negligence. After the court granted summary judgment for the defense on all but the breach of warranty claim, it granted Glock leave to file a second summary judgment motion on the remaining claim. The defense filed the motion, and the court granted it, noting that with the adoption of strict products liability under Oklahoma law, breach of implied warranty is no longer an appropriate remedy for recovery in products liability actions except as provided in the Uniform Commercial Code (UCC). Here, the court concluded, the plaintiffs alleged nothing from which the court could reasonably infer that the breach of implied warranty claim was brought pursuant to the UCC. That statute requires a plaintiff to show that a seller had reason to know of the particular purpose for which goods are to be used and that the buyer relied on the seller’s skill and judgment in selecting a suitable good. Despite his contentions, there is no evidence that Oglesbee purchased the pistol for recreational purposes or that he relied on Glock’s skill or judgment in purchasing it, the court found.

See also Barrett Firearms Mfg., Inc. v. Flores, 673 S.W.3d 353 (Tex. Ct. App. 2023). There, Xavier Flores and four of his family members went to the Bullet Hole Shooting Range in San Antonio. At the range, Flores rented an M99 .50 caliber rifle manufactured by Barrett Firearms Manufacturing, Inc., and Barrett Firearms USA, Inc. (Barrett), and purchased 10 rounds of .50 caliber ammunition manufactured by Federal Cartridge Co. After being instructed by a Bullet Hole employee on how to load the ammunition and fire the rifle, Flores and his family took turns firing. When Flores loaded the ninth round of ammunition, the rifle allegedly exploded in his hand, causing severe injuries. Flores sued Bullet Hole, Barrett, and Federal Cartridge, alleging negligence, gross negligence, products liability, and breach of express and implied warranties of merchantability under Texas law. He did not serve an expert report on any of the defendants within 90 days of filing his original petition. Barrett and Federal moved to dismiss, arguing that Tex. Civ. Prac. & Rem. Code §128.053(a) required Flores to serve an expert report on each of them because they were parties in a suit against a sport shooting range. The plaintiff responded that Barrett and Federal were not entitled to dismissal because the statute applied only to claims against a shooting range, and Barrett and Federal were separate manufacturing entities. The trial court denied the motions. The court found that Chapter 128 required expert testimony that a sport shooting range, the owner or operator of a range, or the owner of the property on which the range is operated deviated from the applicable standard of care. Nevertheless, the court found, as firearm and ammunition manufacturers, Barrett and Federal were not affected defendants whose conduct would have been implicated in the report concerning the standard of care applicable to a sport shooting range. The court also held that it could not see how expert testimony on the applicable standard of care regarding Bullet Hole’s maintenance and storage of Barrett and Federal’s products would implicate these defendants as manufacturers, based on the facts the plaintiff pleaded and the theories of liability he asserted. Thus, the court concluded, the trial court’s denial of the defense motions was proper.