ELECTRONICALLY FILED

COURT OF COMMON PLEAS

Tuesday, May 14, 2019 11:00:55 AM
CASE_D SCR
CASE_ TYPE
2018 CV 02406
CV
CASE NUMBER: 2018 CV 02406 Docket ID: 33410373
MIKE FOLEY
DOCKET_ CODE
FORMSGEN YES
WORDDOC YES

CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

CIVIL DIVISION

DARREN G. HAMBLIN EXECUTOR, CASE NO.: 2018 CV 02406

Montgomery County Common Pleas Court

Plaintiff(s), JUDGE STEVEN K. DANKOF

-vs-

RIDDELL INC. et al,

ORDER GRANTING IN PART AND
Defendant(s). DENYING IN PART MOTION TO
General Division

DISMISS

This matter is before the Court on Defendants Riddell Inc., Riddell Sports Group, Inc., All American

Sports Corp., Easton-Bell Sports, Inc., Easton-Bell Sports, LLC, EB Sports Corp., BRG Sports Holding

Corporation, and BRG Sports, Inc.’s (“Defendants”) Motion to Dismiss Plaintiff’s First Amended Complaint

(“Motion”), filed by Defendants on October 18, 2018; Plaintiff’s Memorandum Opposing the Riddell

Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint, filed November 16, 2018; and

Defendants’ Reply Memorandum in Support of Motion to Dismiss Plaintiff’s First Amended Complaint, filed

December 7, 2018.

I. FACTS

For the purposes of the Motion to Dismiss, the Court accepts as true the following facts as stated in

Plaintiff’s First Amended Complaint:

On May 29, 2016, 22-year-old Cody A. Hamblin (“Decedent”) suffered a seizure while fishing in a

boat, causing him to fall overboard and drown. An autopsy revealed that Decedent suffered from Chronic

Traumatic Encephalopathy (“CTE”), a significant neurological injury that can only be diagnosed postmortem.

Decedent played youth tackle football from 2001 through 2011, starting at age 8 and ending around the age of

18. The complaint alleges Decedent wore Defendants’ helmets while playing football, believing the helmets
would keep Decedent safe from the long-term effects of repeat brain injuries, sub-concussive hits, and

cumulative brain trauma. In sum, as a result of Decedent’s belief in the helmets’ safety, Decedent continued to

play football, and ultimately suffered long-term brain damage that led to his untimely drowning death. On

September 14, 2018, Plaintiff filed his First Amended Complaint (“Complaint”).

Based on the foregoing allegations, Plaintiff asserts claims under the Ohio Products Liability Act

(“OLPA”). Those claims include: (1) strict liability for design defect, (2) strict liability for manufacturing

defect, (3) defects in warning or instructions, and (4) defect by failure to conform to representation.

Additionally, Plaintiff’s Complaint alleges claims for fraud and wrongful death.

II. LAW AND ANALYSIS

A. Civ.R. 12(B)(6)

Civ.R. 12(B)(6) provides that, in lieu of an answer, a defendant may move to dismiss a complaint for

failure to state a claim upon which relief can be granted. “A motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests the sufficiency of the complaint.”1 “‘In construing a

complaint upon a motion to dismiss for failure to state a claim, [the court] must presume that all factual

allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Then,

before [the court] may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of

facts warranting a recovery.’”2

In applying this test, the Second Appellate District has emphasized: “‘as long as there is a set of facts,

consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a

defendant’s motion to dismiss.’”3 Ohio and this Court do not treat a Civ. R. 12(B)(6) motion to dismiss as a

Civ. R. 56 motion for summary judgment light, but it will not permit either “speculation or complaints that are

devoid of factual allegation supporting the legal claims.”4

1
State ex rel. Hanson v. Guernsey County Bd. of Comm'rs, 65 Ohio St. 3d 545, 1992-Ohio-73, 605 N.E.2d 378 (1992).
2
Sacksteder v. Senney, 2d Dist. No. 24993, 2012 Ohio 4452, quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190,
192, 532 N.E.2d 753 (1988); Ohio is a notice-pleading state. Notice-pleading stands in contrast to the heightened federal
standard colloquially known as the Twombly-Iqbal standard.
3
Id., quoting York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).
4
Id. at ¶ 45.
2
 Plaintiff asserts four causes of action arising from the OPLA: Strict Liability for Design Defect, Strict

Liability for Manufacturing Defect, Defects in Warning or Instructions, and Defect by failure to Conform to

Representation. Plaintiff’s final two claims are for fraud and wrongful death.

i. Strict Liability for Design Defect

Plaintiff’s first cause of action arises from R.C. 2307.72(A) and 2307.75, and seeks to hold Defendants

liable for alleged defects in designing their helmets. In pertinent part, R.C. 2307.75 provides “a product is

defective if, at the time it left the control of its manufacturer, the foreseeable risks associated with its design

or formulation . . . exceeded the benefits associated with that design or formulation.” Plaintiffs allege the

Helmet was “defective in design, unreasonably dangerous, and unsafe for their intended purpose because they

did not provide adequate protection against the foreseeable risk of brain and neurological injury.” 5 The alleged

defects included failure to design a helmet capable of absorbing foreseeable impact, lack of a shock attenuating

system, failure to adequately test, failure to warn, and other flaws that may be discovered through litigation.

Because of these flaws:

“¶81: When the helmets left Defendants[‘] control, the foreseeable risks
associated with the design exceed the benefits of that design

¶82: The helmets, and their components were more dangerous than
PLAINTIFF or his DECEDENT, as ordinary consumer, would expect when
used in an intended or reasonably foreseeable manner, and therefore were
defective products pursuant to R.C. 2307.75

¶83: The defective design and unreasonably dangerous conditions were a

proximate and producing cause of the personal injuries, and ultimate death,
suffered by the DECEDENT . . .”

Plaintiff further alleges “An alternative design that would not increase the risk was economically and

technologically feasible,”6 an allegation that, if proven true, represents a stunning breakthrough in safety

engineering.

The Court reiterates that a plaintiff is not required to prove claims at the pleading stage. Taking the

factual allegations as true, and making all reasonable inferences in favor of Plaintiff, the Court finds that the

Complaint states a claim for strict liability for design defect.

5
Complaint, at ¶ 80.
6
Id., at ¶ 85.
3
 ii. Strict Liability for Manufacturing Defect

Plaintiff further alleges Strict Liability for Manufacturing Defect under R.C. 2307.72(A) and 2307.74.

In its entirety, the statute provides:

A product is defective in manufacture or construction if, when it left the

control of its manufacturer, it deviated in a material way from the design
specifications, formula, or performance standards of the manufacturer, or
from otherwise identical units manufactured to the same design
specifications, formula, or performance standards. A product may be
defective in manufacture or construction as described in this section even
though its manufacturer exercised all possible care in its manufacture or
construction.

Courts will dismiss claims under R.C. 2307.74 that do “nothing more than provide a formulaic

recitation of the elements of the claims” and fail “to allege any facts that would have permitted the court to

conclude that a manufacturing or design defect had occurred, or that such a defect was the proximate cause

of the plaintiffs’ alleged injuries.”7 The factual allegations in the Complaint overcome that low threshold,

providing “the shock attenuating system” was not safely configured,8 among other allegations to a similar

effect. Plaintiff alleges that the injuries caused by Defendants’ manufacturing or design defects were a

proximate cause of Decedent’s death.9 Taking the factual allegations as true, and making all reasonable

inferences in favor of Plaintiff, the Court finds that the Complaint states a claim of strict liability in

manufacturing defect.

iii. Defects in Warning or Instructions

The third10 cause of action is defects in warning or instructions. Under R.C. 2307.72(A) and 2307.76,

a product is defective due to inadequate warning or instruction if: (1) at the time of marketing when it left

control of the manufacturer, or (2) at a relevant time after it left the control of its manufacturer, 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 that allegedly
cause harm for which the claimant seeks to recover[.]

(b) The manufacturer failed to provide the warning or instruction [or post-
marketing warning or instruction] that a manufacturer exercising reasonable
care would have provided concerning that risk, in light of the likelihood that

7
Frey v. Novartis Pharms. Corp., 642 F. Supp. 2d 787, 2009 U.S. Dist. LEXIS 64731 (S.D. Ohio 2009).
8
Complaint at ¶ 87.
9
Complaint at ¶ 86 – 91.
10
Mislabeled in Complaint as Fourth Cause of Action.
4
 the product would cause harm of the type for which claimant seeks to recover
compensatory damages and in light of the likely seriousness of that harm.”

Here, Plaintiff alleges that Defendants knew about the risks associated with the product and failed to

warn both at the time of marketing and in post-marketing.11 Again, the Court must presume all factual

allegations of the complaint true and make reasonable inference in favor of the non-moving party. Taking the

factual allegations as true, and making all reasonable inferences in favor of Plaintiff, the Court finds that the

Complaint states a claim for defects in warning or instructions.

iv. Defect by Failure to Conform to Representation

The fourth12 cause of action, defect by failure to conform to representation, arises under R.C.

2307.72(A) and 2307.77. It provides, in its entirety:

“A product is defective if it did not conform, when it left the control of its
manufacturer, to a representation made by that manufacturer. A product may
be defective because it did not conform to a representation even though its
manufacturer did not act fraudulently, recklessly, or negligently in making the
representation.”

This claim encapsulates Plaintiff’s entire case. Plaintiff alleges Defendants “knew that repetitive brain

impacts in football games and practices created a risk of harm to tackle football players,”13 and Defendants

“misrepresented the safety of the equipment it designed, manufactured, tested, sold or distributed to tackle

football participants.”14 According to the Complaint, Defendants’ alleged misrepresentations about their

helmets put Decedent at an increased risk of short term and long term injury. As such, taking the factual

allegations as true, and making all reasonable inferences in favor of Plaintiff, the Court finds that the Complaint

states a claim for defect by failure to conform to representation.

v. Fraud

The fifth15 cause of action is for fraud. The OLPA governs all product liability claims in Ohio. R.C.

2307.71(B) specifically states the provisions of the OLPA “are intended to abrogate all common law product

liability claims or causes of action.” Here, the claim for fraud would masquerade as something other than a

product liability claim. Indeed, the entire substance of the claim meets the definition of a product liability claim

11
Complaint at ¶ 92 – 104.
12
Mislabeled in Complaint as Fifth Cause of Action.
13
Complaint at ¶ 107.
14
Id. at ¶ 109.
15
Mislabeled in Complaint as Sixth Cause of Action.
5
under R.C. 2307.71(A)(13). As such, the Court dismisses the claim for fraud for failure to state a claim upon

which relief can be granted.

vi. Wrongful Death

The sixth16 cause of action is for wrongful death. Wrongful death is a statutory cause of action under

R.C. 2125.01. Wrongful death is also an independent cause of action. As such, “it cannot depend on the

existence of a separate cause of action.”17 Doing otherwise would “convert the wrongful death action from an

independent action to a derivative action.18 So, “when the death of a person is caused by wrongful act, neglect,

or default which would have entitled the party injured to maintain an action and recover damages if death had

not ensued, the person who would have been liable if death had not ensued . . . shall be liable to an action for

damages.”

Were Plaintiff alive, Plaintiff could have maintained an action and possibly recovered damages if

death had not ensued. Taking the factual allegations as true, and making all reasonable inferences in favor of

Plaintiff, the Court finds that the Complaint states a claim for wrongful death.

III. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

1. Defendants’ Motion is GRANTED as to fraud.

2. Defendants’ Motion is DENIED as to all other claims.

SO ORDERED:

JUDGE STEVEN K. DANKOF

16
Mislabeled in Complaint as Seventh Cause of Action.
17
Thompson v. Wing, 70 Ohio St. 3d 176, 183, 1994-Ohio-358, 637 N.E.2d 917 (1994).
18
Id. at 183.
6
This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the filing to the e-
Filing account "Notifications" tab of the following case participants:

MITCHELL J ANDERSON
(937) 226-1770
Attorney for Plaintiff, Darren G. Hamblin, Executor

MICHAEL P KELLY
(213) 977-0211
Attorney for Plaintiff, Darren G. Hamblin, Executor

THOMAS J INTILI
(937) 226-1770
Attorney for Plaintiff, Darren G. Hamblin, Executor

ROBERT W FINNERTY
(213) 977-0211
Attorney for Plaintiff, Darren G. Hamblin, Executor

CAROLYN A TAGGART
(513) 369-4231
Attorney for Defendant, Riddell Inc., Riddell Sports Group Inc., All American Sports Corp, Easton-Bell Sports Inc., Easton-Bell
Sports LLC, Eb Sports Corp., Brg Holdings Corp., and Brg Sports Inc.

ANA E CRAWFORD
(937) 449-6726
Attorney for Defendant, Riddell Inc., Attorney for Defendant, Riddell Inc., Riddell Sports Group Inc., All American Sports Corp,
Easton-Bell Sports Inc., Easton-Bell Sports LLC, Eb Sports Corp., Brg Holdings Corp., and Brg Sports Inc.

Elizabeth Hall, Bailiff (937) 225-4409 Elizabeth.Hall@montcourt.oh.gov

7
 General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422

Case Number: Case Title:

2018 CV 02406 DARREN G. HAMBLIN vs RIDDELL INC.

Type: Order:

So Ordered,

Electronically signed by SDankof on 05/14/2019 11:01:12 AM Page 8 of 8