I concur in the majority's affirmance of summary judgment dismissing plaintiffs' claims against Richard K. Potts. I dissent, however, from the reversal of the trial court's granting of summary judgment dismissing plaintiffs' claims against McDonald's Corporation and Keystone Food Corporation.
In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard a trial court is required to apply in the first instance: whether there were any genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. Parenti v. GoodyearTire Rubber Co. (1990), 66 Ohio App.3d 826, 829,586 N.E.2d 1121, 1122-1123. The first step in determining whether there were any genuine issues of material fact is an examination of the applicable substantive law:
"As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v.Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505,2510, 91 L.Ed.2d 202, 211.
I agree with the conclusion of the majority that McDonald's and Keystone are "manufacturers" as that term is used in R.C.2307.71(I) and that plaintiffs' claims against them must be analyzed pursuant to Ohio's statutory products liability law.
Plaintiffs averred in their complaint that McDonald's and Keystone "knew or should have known about the potential risk and injury that the consumption of a McLean hamburger might cause to someone who is allergic to seafood, including seaweed." They further averred that McDonald's and Keystone "failed to *Page 305 provide a warning/instruction that a manufacturer exercising reasonable care would have provided concerning the above risk." Finally, they averred that they were damaged as a result of the failure of McDonald's and Keystone to warn of the alleged "potential risk and injury."
As noted by the majority, R.C. 2307.76 sets forth the applicable standards for determining whether a product is defective due to a failure to warn. Pursuant to R.C. 2307.76, a product may be defective either because of a failure to provide an adequate warning at the time of marketing or because of a failure to provide a post-marketing warning. Although there could be a distinction between the analysis of a failure to provide a warning at the time of marketing and a failure to provide a post-marketing warning in some cases, there is no such distinction in this case. Ms. Brown's alleged injury occurred within moments after she purchased the McLean hamburger at issue. Accordingly, this case is properly analyzed solely as a claimed failure to provide a warning at the time of marketing.
R.C. 2307.76(A) provides that, in order for a product to be defective because of a failure to warn at the time of marketing, two things must be found to apply:
"(1) [A product] is defective due to inadequate warning or instruction at the time of marketing if, when 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 and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
"(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."
Pursuant to R.C. 2307.73, a manufacturer is liable for compensatory damages proximately caused by a failure to warn that constitutes a "defect" as defined in R.C. 2307.76. Accordingly, in order to recover against McDonald's and Keystone in this case on their failure-to-warn theory, plaintiffs would have had to prove, by a preponderance of the evidence, that Ms. Brown suffered an allergic reaction to the McLean hamburger and that McDonald's and Keystone knew, or in the exercise of reasonable care should have known, at the time the McLean hamburger left their hands, that it posed a risk of an allergic reaction to people eating it and that, in light of the likelihood of that harm and its seriousness, they failed to provide a warning that manufacturers in their position exercising reasonable care would have provided. *Page 306
McDonald's and Keystone, as the moving parties, had the initial burden of informing the court the basis upon which they claimed to be entitled to summary judgment. Celotex Corp. v.Catrett (1986), 477 U.S. 317, 323, 106 S.Ct. 2548, 2553,91 L.Ed.2d 265, 274. Plaintiffs, however, would have had the burden of proof at trial on their product liability claim. That fact affects what defendants were required to present to the trial court to carry their initial burden. They were not required to present evidence that disproved plaintiffs' claims against them. Rather, they could discharge their initial burden by "`showing' — that is, pointing out to the [trial] court — that there [was] an absence of evidence to support the nonmoving party's case."Id. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275.
To carry their initial burdens, McDonald's and Keystone were not required to point out an absence of evidence to support each element of plaintiffs' case against them. The absence of any essential element of plaintiffs' claim would entitle McDonald's and Keystone to judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323,106 S.Ct. at 2552, 91 L.Ed.2d at 273.
Both McDonald's and Keystone, in their respective briefs in support of their motions for summary judgment, asserted, among other things, that the McLean hamburger purchased by Brown was not defective. This "showing" was sufficient to require plaintiffs, in order to avoid entry of summary judgment dismissing their claims against McDonald's and Keystone, to demonstrate, by depositions, answers to interrogatories, written admissions, affidavits, transcripts, or stipulations, that there was a genuine issue for trial on the question of whether the hamburger was defective. Civ.R. 56.
Plaintiffs attempted to carry their burden of establishing a genuine issue regarding whether the hamburger was defective by submitting an affidavit of Dr. Howard Schwartz, a physician licensed to practice medicine in Ohio in the specialty of allergies. The parts of Schwartz's affidavit relevant to the issue of whether the hamburger was defective were paragraphs five through seven:
"5. That [Ms. Brown's] reaction to the McLean McDonald's Hamburger may not be unusual susceptibility and should have been considered in the manufacturing and marketing of the Hamburger;
"6. That Susan Brown and other similarly situated consumers should have been made aware of the ingredients of the McLean McDonald's Hamburgers and the potential for reactions to those ingredients;
"7. That Susan Brown and similarly situated consumers should not be subjected to products such as McLean McDonald's Hamburgers which have ingredients with the potential to cause anaphylactic reactions." *Page 307
Civ.R. 56(E) provides, in part, that affidavits supporting or opposing summary judgment "shall set forth such facts as would be admissible in evidence." Schwartz's affidavit was insufficient to establish a genuine issue of material fact regarding whether the hamburger at issue was defective because it did not set forth facts in paragraphs five through seven that "would be admissible in evidence."
As noted previously, pursuant to R.C. 2307.76, in order to show that the McLean hamburger was defective, plaintiffs would have had to prove that McDonald's and Keystone knew, or in the exercise of reasonable care should have known, at the time the McLean hamburger left their hands, that it posed a risk of an allergic reaction to people eating it and that, in light of the likelihood of that harm and its seriousness, they failed to provide a warning that manufacturers in their position exercising reasonable care would have provided. By his conclusory assertions in paragraphs five through seven of his affidavit, Schwartz, in effect, stated that, in his opinion, McDonald's and Keystone knew, or in the exercise of reasonable care should have known, at the time the McLean hamburger left their hands, that it posed a risk of an allergic reaction to people eating it and that, in light of the likelihood of that harm and its seriousness, they failed to provide a warning that manufacturers in their position exercising reasonable care would have provided.
Pursuant to Evid.R. 704, an expert is not foreclosed from offering an opinion at trial "solely because it embraces an ultimate issue to be decided by the trier of fact." Pursuant to Evid.R. 703, however, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may [only] be those perceived by him or admitted in evidence * * *." Further, pursuant to Evid.R. 705, an expert may only state his opinions "and give his reasons therefor after disclosure of the underlying facts or data." An expert may not testify that he believes that a product was defective without first revealing the facts or data that he perceived or that are in evidence upon which he has based that opinion. Schwartz could only reach a conclusion that the hamburger was defective within the meaning of R.C. 2307.76 by reviewing data concerning how many people are allergic to carrageenan and the likely seriousness of their reaction to it. His opinion, as set forth in his affidavit, that it was defective was not admissible in evidence because he failed to reveal what he perceived, or what evidence he reviewed that was in the record, concerning the number of people who have an allergic reaction to carrageenan and the likely seriousness of their reaction. Inasmuch as he failed to establish the necessary foundation for admission of his opinion, his affidavit did not set forth "facts as would be admissible in evidence" and, therefore, was not sufficient to carry plaintiffs' burden of establishing a *Page 308 genuine issue for trial. I would affirm the trial court's grant of summary judgment in favor of McDonald's and Keystone. *Page 309