Reeves v. Acromed Corp ( 1997 )


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  •                       United States Court of Appeals,
    
                                     Fifth Circuit.
    
                                     No. 96-30307.
    
        Dorothy Marie REEVES, Plaintiff-Appellee-Cross-Appellant,
    
                            Randy J. Ungar, Intervenor,
    
                                           v.
    
      ACROMED CORP. et al., Defendants-Appellants-Cross-Appellees.
    
                                     Jan. 20, 1997.
    
    Appeal from the United States District Court for the Eastern
    District of Louisiana.
    
    Before KING, JOLLY and DENNIS, Circuit Judges.
    
         DENNIS, Circuit Judge:
    
         This is the second appeal arising from a products liability
    
    action   filed   by    the    plaintiff-appellee,   Dorothy   Marie   Reeves
    
    ("Reeves"), alleging that a metal bone implant manufactured and
    
    marketed    by    the        defendant-appellant,   AcroMed    Corporation
    
    ("AcroMed") aggravated and compounded her back injuries.              In the
    
    first appeal this court vacated the district court's judgment in
    
    favor of Reeves based on a jury verdict awarding her damages of
    
    $475,000 against AcroMed and remanded the case for retrial. Reeves
    
    v. AcroMed Corporation, 
    44 F.3d 300
     (5th Cir.1995), cert. denied,
    
    --- U.S. ----, 
    115 S. Ct. 2251
    , 
    132 L. Ed. 2d 258
     (1995)("Reeves I").
    
    After retrial, the district court rendered judgment in favor of
    
    Reeves against AcroMed and Dr. Arthur Steffee ("Steffee"), chairman
    
    of AcroMed and inventor of the metal bone implant, implementing a
    
                                           1
    jury award to Reeves of $318,000 in damages.              We affirm the
    
    judgment against AcroMed but reverse it insofar as it affects
    
    Steffee.     Reeves' unreasonably dangerous per se claim is not
    
    preempted by the Medical Device Amendments of 1976 to the Food,
    
    Drug, and Cosmetic Act. 21 U.S.C. § 360k(a).       Under the law of this
    
    case established in Reeves I we will not reexamine whether Reeves'
    
    unreasonably dangerous per se claim should have been presented to
    
    the jury.   Steffee was not a manufacturer of the metal bone implant
    
    because he personally did not place the product on the market or
    
    introduce it into the stream of commerce.
    
                                    BACKGROUND
    
         In    December   1985,   the   plaintiff-appellee,   Dorothy   Marie
    
    Reeves, seriously injured her back.          She was diagnosed as having
    
    spinal stenosis.      To alleviate this condition, her neurosurgeon
    
    attempted a complicated procedure that entailed fusing grafts of
    
    bone from Reeves' hip into her spine at four different levels of
    
    her vertebrae.     As part of this surgery, metal bone plates and
    
    screws manufactured by the appellant, AcroMed, were implanted into
    
    Reeves' back to secure the fusion.         Reeves' condition initially
    
    improved after surgery.       However, six months after the surgery,
    
    Reeves began to suffer from back pain that had not existed prior to
    
    the surgery.     Reeves continued to suffer from this pain and in
    
    December 1991, filed suit against AcroMed alleging that AcroMed's
    
    products implanted in her back were defective.          Reeves based her
    
    
    
                                         2
    cause of action on several theories of recovery including, failure
    
    to   warn,    defective    design,    defective   manufacturing,   and   the
    
    "unreasonably dangerous per se" category of products liability.
    
    Reeves I, at 308;     See Halphen v. Johns-Manville Sales Corp., 
    484 So. 2d 110
    , 113-115 (La.1986). The jury returned a verdict in favor
    
    of Reeves, but did not specify upon which legal theory the verdict
    
    was based.
    
          In Reeves I, this court held that the failure to warn theory
    
    was preempted by the Medical Device Amendments to the Food, Drug,
    
    and Cosmetic Act, 21 U.S.C. §§ 301 et seq., and that Reeves failed
    
    to produce sufficient evidence to recover on her defective design
    
    and manufacturing theories.          Accordingly, we vacated the judgment
    
    of the district court and remanded for retrial of Reeves' action
    
    predicated solely on the unreasonably dangerous per se theory.
    
    However, in Reeves I we found that Reeves presented sufficient
    
    evidence to have her unreasonably dangerous per se claim submitted
    
    to the jury, including the questions of whether the medical device
    
    was an unreasonably dangerous per se product and, if so, whether
    
    this product condition caused the exacerbation of Reeves' back
    
    injury.      Id. at 308.
    
          After trial on remand, the jury awarded Reeves $318,000
    
    finding that AcroMed's medical device was unreasonably dangerous
    
    per se and this product condition caused the aggravation and
    
    compounding of Reeves' back injuries.              On remand Reeves also
    
    
                                            3
    brought a cause of action based on the unreasonably dangerous per
    
    se theory of recovery against Dr. Arthur Steffee, the inventor of
    
    the metal bone plates and screws implanted in Reeves' back and the
    
    chairman of the board of AcroMed.1               Before the commencement of
    
    Reeves' jury    trial,     the    parties      stipulated     that   if    the    jury
    
    returned a verdict in favor of Reeves, the judge would rule on
    
    Steffee's liability.       After the jury rendered a verdict in Reeves'
    
    favor, the trial judge determined that Dr. Steffee was personally
    
    liable.     We conclude that Reeves' unreasonably dangerous per se
    
    claim is not preempted, the law of the case doctrine mandates that
    
    we not reconsider the sufficiency of the evidence and causation
    
    issues with respect to Reeves' unreasonably dangerous per se claim
    
    against AcroMed, and the jury acted reasonably in awarding Reeves
    
    $318,000.    However, we conclude that the district court erred in
    
    part by holding Steffee liable.
    
                                STANDARD OF REVIEW
    
            We employ a three-tiered standard of review in this case.                   A
    
    court's    findings   of   fact    are       reviewed   for    clear      error   and
    
    conclusions of law are reviewed de novo.            Peaches Entertainment v.
    
    Entertainment Repertoire, 
    62 F.3d 690
    , 693 (5th Cir.1995).                         In
    
    reviewing a jury's findings of fact, we apply the standard set out
    
    
    
        1
         In Reeves I, Reeves also brought a claim against Dr. Steffee,
    but the parties apparently agreed not to submit the claim against
    Dr. Steffee to the jury because AcroMed's insurance would cover any
    judgment. However, Dr. Steffee was never dismissed as a party.
    
                                             4
    in Boeing Co. v. Shipman 
    411 F.2d 365
     (5th Cir.1969):            "[A] jury
    
    verdict will not be overturned unless the facts and inferences
    
    point so strongly and overwhelmingly in favor of one party that the
    
    court believes that reasonable [jurors] could not arrive at a
    
    contrary verdict."
    
                                   DISCUSSION
    
    I. Reeves' Claim Against AcroMed
    
         AcroMed first asserts that Reeves' state law unreasonably
    
    dangerous   per   se   claim   is   preempted   by   the   Medical   Device
    
    Amendments of 1976 (MDA or Act) to the Food, Drug, and Cosmetic
    
    Act. 90 Stat. 539.      21 U.S.C. § 301, et. seq.          In light of the
    
    Supreme Court's decision in Medtronic, Inc. v. Lohr, 
    518 U.S.
    ----,
    
    
    116 S. Ct. 2240
    , 
    135 L. Ed. 2d 700
     (1996), this argument is not
    
    persuasive.
    
          Congress enacted the MDA to give the FDA authority to
    
    regulate medical devices.       Lohr, 
    518 U.S.
    at ----, 116 S.Ct. at
    
    2246. In Lohr, the Supreme Court explained the critical provisions
    
    of the MDA as background for its preemption analysis.
    
         Medical devices are divided into three classes.             Class III
    
    devices present potential unreasonable risks and are subject to the
    
    most intensive regulation.      Id. The metal bone plates and screws
    
    implanted in Reeves' back are Class III devices.            In order for a
    
    new Class III device to be marketed, the manufacturer of the device
    
    must provide the FDA with a reasonable assurance that the device is
    
    
                                         5
    both safe and effective.          Id. (citing 21 U.S.C. § 360e(d)(2)).
    
    This process, known as the "premarket approval" (PMA) process, is
    
    quite rigorous in that the FDA spends an average of 1200 hours on
    
    each submission.    Id. at ---- - ----, 116 S.Ct. at 2246-47.
    
          There are two exceptions to the PMA requirement.                First, the
    
    statute grandfathers in all pre-1976 devices and allows those
    
    devices to remain on the market until the FDA initiates and
    
    completes a PMA. Id. at ----, 116 S.Ct. at 2247 (citing 21 U.S.C.
    
    §   360e(b)(1)(A)).        Second,        to    prevent    manufacturers        of
    
    grandfathered   devices    from    monopolizing      the   market     while    new
    
    devices clear the PMA hurdle, and to ensure rapid introduction of
    
    improvements, the Act also permits devices that are "substantially
    
    equivalent" to preexisting devices to be marketed without the
    
    rigorous PMA review.      Id. (citing 21 U.S.C. § 360e(b)(1)(B)).
    
         However, all "substantially equivalent" devices are subject to
    
    the requirements of 21 U.S.C. § 360(k).             That section imposes a
    
    limited form of review on every manufacturer intending to market a
    
    new device by requiring it to submit a "premarket notification" to
    
    the FDA. This process is also known as the "§ 510(k) notification
    
    or process," after the number of the section in the original act.
    
    We will use it hereinafter to avoid confusion between 21 U.S.C. §
    
    360(k)(§   510(k)   notification      or       process)    and   21   U.S.C.     §
    
    360k(a)(preemption provision).        If the FDA concludes on the basis
    
    of the § 510(k) notification that the device is "substantially
    
    
                                          6
    equivalent" to a pre-existing device, it can be marketed until the
    
    FDA initiates the PMA process for the underlying pre-1976 device to
    
    which the     new   device   is   "substantially   equivalent."     Id.    In
    
    contrast to the rigorous PMA process, the § 510(k) process averages
    
    only 20 hours instead of 1200.        Id.
    
          The preemption provision of the MDA, 21 U.S.C. § 360k(a),
    
    reads as follows:
    
          § 360k. State and local requirements respecting devices
    
          (a) General rule
    
               Except as provided in subsection (b) of this section, no
          State may establish or continue in effect with respect to a
          device intended for human use any requirement—
    
                 (1) which is different from, or in addition to, any
                      requirement applicable under this chapter to the
                      device, and
    
                 (2) which relates to the safety or effectiveness of the
                      device or to any other matter included in a
                      requirement applicable to the device under this
                      chapter.
    
          In Medtronic, Inc. v. Lohr, 
    518 U.S.
    ----, 
    116 S. Ct. 2240
    , 
    135 L. Ed. 2d 700
     (1996), petitioner Medtronic Inc.'s pacemaker was a
    
    Class III device found substantially equivalent under the § 510(k)
    
    process.     Cross-petitioners Lohrs filed a state court suit in
    
    Florida alleging strict liability and negligence claims because of
    
    the failure of her Medtronic pacemaker. Medtronic removed the case
    
    to federal district court.        That court dismissed the complaint as
    
    having been pre-empted by 21 U.S.C. § 360k(a) because it was based
    
    on   state   law    claims   which,   if    successful,   would   impose   a
    
                                          7
    requirement different from or in addition to any requirement
    
    applicable to the device under the MDA relating to the safety or
    
    effectiveness of the device. The Eleventh Circuit Court of Appeals
    
    reversed in part and affirmed in part, concluding that the Lohrs'
    
    negligent    design   claims   were   not    pre-empted,    but   that   their
    
    negligent manufacturing and failure to warn claims were. Lohr, 
    518 U.S.
    at ----, 116 S.Ct. at 2249.            The Supreme Court reversed in
    
    part, affirmed in part, and remanded, concluding that the MDA does
    
    not pre-empt the Lohrs' common law claims.           Id. at ----, 116 S.Ct.
    
    at 2259.
    
          Although the Supreme Court determined that it need not go
    
    beyond   §   360k(a)'s   pre-emptive      language   to   determine    whether
    
    Congress intended the MDA to pre-empt at least some state law,
    
    citing Cipollone v. Liggett Group, Inc., 
    505 U.S. 504
    , 517, 
    112 S. Ct. 2608
    , 2618, 
    120 L. Ed. 2d 407
     (1992), the Court concluded that
    
    the   domain   expressly    pre-empted       by   that    language    must   be
    
    identified. The Court further noted that its interpretation of the
    
    text is informed by the assumptions that the States' historic
    
    police powers cannot be superseded by a Federal Act unless that is
    
    Congress' clear and manifest purpose, citing Rice v. Santa Fe
    
    Elevator Corp., 
    331 U.S. 218
    , 230, 
    67 S. Ct. 1146
    , 1152, 
    91 L. Ed. 1447
     (1947), and that any understanding of a pre-emption statute's
    
    scope rests primarily on "a fair understanding of congressional
    
    purpose," quoting Cipollone, 505 U.S. at 530, 112 S.Ct. at 2624.
    
    
                                          8
         The Court determined that the Lohrs' design claims were not
    
    pre-empted      because      the     FDA's      "substantially       equivalent"
    
    determination as well as its continuing authority to exclude a
    
    device from the market do not amount to a specific, federally
    
    enforceable design requirement that cannot be affected by the type
    
    of state law pressures imposed by those claims.                    Because the §
    
    510(k) process is focused on equivalence, not safety, the Court
    
    observed, substantial equivalence determinations provide little
    
    protection   to    the    public.     Neither     the   statutory    scheme   nor
    
    legislative history suggests that the § 510(k) process was intended
    
    to do anything other than maintain the status quo, which included
    
    the possibility that a device's manufacturer would have to defend
    
    itself against state law negligent design claims.                Lohr, 
    518 U.S.
    at ---- - ----, 116 S.Ct. at 2254-55.
    
         The Supreme Court also held that the Lohrs' manufacturing and
    
    labeling claims are not pre-empted because § 360k(a) does not
    
    pre-empt   state    rules    that    merely     duplicate    the    FDA's   rules
    
    regulating manufacturing practices and labeling.               That the state
    
    requirements may be narrower than the federal rules does not make
    
    them "different" under § 360k(a).             Id. at ----, 116 S.Ct. at 2258.
    
    Nor does the presence of a damages remedy amount to an additional
    
    or different "requirement";          it merely provides another reason for
    
    manufacturers     to     comply    with   identical     existing    federal   law
    
    "requirements." Id. The Court found that this view is supported by
    
    
                                              9
    the regulations         of    the   FDA,    to   which    Congress    has    delegated
    
    authority to implement the MDA. Id.
    
            In the present case, we conclude, for the same reasons, that
    
    Reeves' unreasonably dangerous per se claim is not preempted by §
    
    360k(a).   As the Supreme Court noted, quoting the court below with
    
    approval, " "[t]he 510(k) process is focused on equivalence, not
    
    safety.'     Lohr v. Medtronic, Inc., 
    56 F.3d 1335
    , 1348 (11th
    
    Cir.1995).    As a result, "substantial equivalence' determinations
    
    provide little protection to the public."                 Lohr, 
    518 U.S.
    at ----,
    
    116 S.Ct. at 2254.           " "These determinations simply compare a post-
    
    1976 device to a pre-1976 device to ascertain whether the later
    
    device is no more dangerous and no less effective than the earlier
    
    device.      If   the     earlier     device     poses     a   severe    risk   or   is
    
    ineffective,      then       the    later    device      may   also     be   risky   or
    
    ineffective.' "         Id. (quoting Adler, 43 Food Drug Cosm. L. J., at
    
    516).   The design of Medtronic's pacemaker, the Court remarked, as
    
    with the design of pre-1976 and other "substantially equivalent"
    
    devices, has never been formally reviewed under the MDA for safety
    
    or efficacy.      Id.
    
         In concluding its review with respect to the Lohrs' defective
    
    design claims, the Court stated:
    
              Thus, even though the FDA may well examine § 510(k)
         applications for Class III devices (as it examines the entire
         medical device industry) with a concern for the safety and
         effectiveness of the device ..., it did not "require"
         Medtronics' pacemaker to take any particular form for any
         particular reason; the agency simply allowed the pacemaker,
    
                                                10
           as a device substantially equivalent to one that existed
           before 1976, to be marketed without running the gauntlet of
           the PMA process....    There is no suggestion in either the
           statutory scheme or the legislative history that the § 510(k)
           exemption process was intended to do anything other than
           maintain the status quo with respect to the marketing of
           existing medical devices and their substantial equivalents.
           That status quo included the possibility that the manufacturer
           of the device would have to defend itself against state-law
           claims of negligent design....       [T]he Court of Appeals
           properly concluded that the "substantial equivalence"
           provision did not pre-empt the Lohrs' design claims.
    
    Id. at ---- - ----, 116 S.Ct. at 2254-55.
    
           Applying these principles to the present case, we conclude
    
    that the "substantial equivalence" provision did not pre-empt
    
    Reeves' unreasonably dangerous per se claim.                  When Reeves' claim
    
    arose, Louisiana and many other jurisdictions recognized that a
    
    product may be unreasonably dangerous because of its design for
    
    reasons very similar to those underlying the unreasonably dangerous
    
    per se claim.          This widely recognized defective design theory
    
    accrued      when   "[a]     reasonable    person    would   conclude      that    the
    
    danger-in-fact, whether foreseeable or not, outweighs the utility
    
    of the product."        Halphen v. Johns-Manville Sales Corp., 484 So.2d
    
    at 114.      See also Elmore v. Owens-Illinois, Inc., 
    673 S.W.2d 434
    
    (Mo.1984);          Turner    v.   General      Motors   Corp.,    
    584 S.W.2d 844
    
    (Tex.1979); Carter v. Johns-Manville Sales Corp., 
    557 F. Supp. 1317
    
    (E.D.Tex.1983); Prosser and Keeton on Torts, p. 699 (5th Ed.1984);
    
    Keeton, Torts, Annual Survey of Texas Law, 1981, 35 Sw.L.J. 1, 9
    
    (1981);      Keeton, The Meaning of Defective in Products Liability
    
    Law,    45    Mo.L.Rev.       579,   592     (1980).       "This     is    the     same
    
                                               11
    danger-utility test applied in determining whether a product is
    
    unreasonably dangerous per se."        Id. The design of AcroMed's metal
    
    bone    implant,   as   with   the    design    of    pre-1976    and     other
    
    "substantially     equivalent"   devices,      has   never   been    formally
    
    reviewed under the MDA for safety or efficacy.             Thus the FDA did
    
    not "require" AcroMed's medical device to take any particular form
    
    for any particular reason;           the metal bone implant was simply
    
    allowed by the agency, as a device substantially equivalent to one
    
    that existed before 1976, to be marketed without running the
    
    gauntlet of the PMA process.     As the Supreme Court took notice with
    
    regard to Lohr's pacemaker, there is no suggestion that the §
    
    510(k) process was intended to do anything other than maintain the
    
    marketing status quo, and that status quo included the possibility
    
    that AcroMed, the manufacturer of the metal bone implant, would
    
    have to defend itself against state-law claims of unreasonably
    
    dangerous products liability claims, including strict liability
    
    defective design and unreasonably dangerous per se claims. Accord:
    
    Moore    v.   Kimberly-Clark     Corporation,        
    867 F.2d 243
        (5th
    
    Cir.1989)(Louisiana strict liability claims based on defective
    
    design, construction and composition of tampon were not preempted
    
    by § 360k(a) of MDA).
    
           This court's decision in Feldt v. Mentor Corp., 
    61 F.3d 431
    
    (5th Cir.1995) fully anticipated the reasoning and holding of Lohr
    
    that we now apply.      In Feldt, we decided that the MDA does not
    
    
                                          12
    preempt Texas design defect and implied warranty claims against the
    
    manufacturer of a pump-activated inflatable penile prosthesis.
    
    This court noted that there was no regulation relating specifically
    
    to design quality of the prosthesis approved for marketing based on
    
    substantial    equivalence        to   prior   devices.        Id.   at   436-438.
    
    Moreover, we noted that "[t]he FDA ... may approve an unreasonably
    
    dangerous device so long as the device has the same technological
    
    characteristics or, if the device has different technological
    
    characteristics, is as safe and effective as the predicate device.
    
    21 U.S.C. § 360c(i).        To say that a new device is as safe as its
    
    predicate thus indicates nothing, absolutely, about how safe either
    
    product is;    a new device may be as safe as a predicate device that
    
    itself is unreasonably dangerous."             Id. at 438, n. 12.
    
         Considering      the     background           behind     the    "substantial
    
    equivalence" exemption, the fact that the purpose of Congress is
    
    the ultimate touchstone in every pre-emption case, Lohr, 
    518 U.S.
    at   ----,    116   S.Ct.    at    2256,     and    the     presumption   against
    
    pre-emption, id., we conclude that the "substantial equivalence"
    
    provision did not pre-empt Reeves' unreasonably dangerous per se
    
    claim.
    
             Alternatively, AcroMed asserts that the judgment of the
    
    district court should be reversed because there was not sufficient
    
    evidence from which a reasonable juror could find that the medical
    
    device was unreasonably dangerous per se and that this condition of
    
    
                                            13
    the product caused the aggravation of Reeves' injuries.                    In Reeves
    
    I    this    court    concluded,    however,        that   Reeves'   evidence   was
    
    sufficient to support submitting her unreasonably dangerous per se
    
    claim to the jury, including the questions of whether the product
    
    was    unreasonably      dangerous    per      se   and    whether   that   product
    
    condition caused the exacerbation of Reeves' back injuries.                      On
    
    this appeal these issues are controlled by the law of the case
    
    doctrine.
    
           Under the law of the case doctrine, we follow the prior
           decisions in a case as the law of that case. Thus, we will
           not reexamine issues of law addressed by a prior panel opinion
           in a subsequent appeal of the same case unless:      "(i) the
           evidence on a subsequent trial was substantially different,
           (ii) controlling authority has since made a contrary decision
           of the law applicable to such issues, or (iii) the decision
           was clearly erroneous and would work a manifest injustice."
    
    Alberti      v.      Klevenhagen,    
    46 F.3d 1347
    ,    1351    n.    1   (5th
    
    Cir.1995)(quoting North Mississippi Communications v. Jones, 
    951 F.2d 652
    , 656 (5th Cir.1992), cert. denied, 
    506 U.S. 863
    , 
    113 S. Ct. 184
    , 
    121 L. Ed. 2d 129
     (1993)). Because none of the above enumerated
    
    exceptions apply to this case, we are governed herein by the
    
    decisions of legal questions by Reeves I. Therefore, under the law
    
    of    this   case     there   was   sufficient       evidence   to   support    the
    
    submission of all elements of Reeves' unreasonably dangerous per se
    
    claim to the jury.
    
           We find nothing improper or unreasonable regarding the jury's
    
    verdict with respect to the quantum of damages.                  In light of the
    
    deference that we are required to give, we cannot overrule the
    
                                              14
    jury's verdict in this case.     The record indicates that the jury's
    
    award of compensatory damages to Reeves was within reasonable
    
    bounds.
    
    II. Reeves' Claim Against Dr. Steffee
    
            Finally, we address whether the district court erred in
    
    holding Steffee liable as the manufacturer or supplier of an
    
    unreasonably dangerous product.     Under product liability theories
    
    of recovery, the plaintiff must establish that the defendant was
    
    the manufacturer or supplier of the defective product.2         See e.g.
    
    Halphen   v.    Johns-Manville   Sales   Corp.,   
    484 So. 2d 110
    ,   113
    
    (La.1986).     A manufacturer or supplier is one who places a product
    
    on the market or introduces it into the stream of commerce.            See
    
    CNG Producing Co. v. Columbia Gulf Transmission, 
    709 F.2d 959
    
    (1983);      Heirs of Fruge v. Blood Services, 
    506 F.2d 841
     (5th
    
    Cir.1975);      Carney v. Marathon Oil Company, 
    632 F. Supp. 1037
    
    (W.D.La.1986);     Restatement (Second) of Torts, § 402A comment f
    
    (1965).   Cf. La.R.S. 9:2800.53(1) and (3).       The facts that Steffee
    
    
        2
         The Louisiana Supreme Court has recognized that professional
    vendors may also be subject to liability under product liability
    theories. See e.g., Shortess v. Touro Infirmary, 
    520 So. 2d 389
    ,
    391 (La.1988); Rowell v. Carter Mobile Homes, Inc. 
    500 So. 2d 748
    ,
    752 (1987); Chappuis v. Sears Roebuck & Co., 
    358 So. 2d 926
    , 930
    (La.1978). In order to qualify as a professional vendor, one must
    do more than occasionally place a product in the stream of
    commerce; one must be in the business of selling the product. See
    Rowell, supra (where a bank which only occasionally sold mobile
    homes which it was forced to acquire in foreclosures was held not
    to be a professional vendor); See also Restatement (Second) of
    Torts, § 402A(1)(a) (1965).
    
                                       15
    invented the metal bone plates and screws and served as chairman of
    
    the board of AcroMed do not suffice to make him a manufacturer,
    
    supplier, or professional vendor.           Steffee invented the bone
    
    implant, but he, in his capacity of an individual person, did not
    
    place the medical device on the market, introduce it into the
    
    stream of commerce, or act as a professional vendor of the product.
    
                                   CONCLUSION
    
         For the foregoing reasons, the judgment of the district court
    
    in favor of Reeves is affirmed insofar as it was rendered against
    
    AcroMed   but   it   is   reversed   insofar   as   it   affects   Steffee.
    
    Accordingly, the judgment of the district court is AFFIRMED IN PART
    
    AND REVERSED IN PART.
    
    
    
    
                                         16
    

Document Info

DocketNumber: 96-30307

Filed Date: 1/20/1997

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (21)

Peaches Entertainment Corp. v. Entertainment Repertoire ... , 62 F.3d 690 ( 1995 )

Rice v. Santa Fe Elevator Corp. , 331 U.S. 218 ( 1947 )

Cipollone v. Liggett Group, Inc. , 505 U.S. 504 ( 1992 )

Medtronic, Inc. v. Lohr , 518 U.S. 470 ( 1996 )

The Boeing Company v. Daniel C. Shipman , 411 F.2d 365 ( 1969 )

Heirs of Ude C. Fruge v. Blood Services and Aetna Casualty &... , 506 F.2d 841 ( 1975 )

cng-producing-co-and-forest-oil-corp-individually-and-on-behalf-of , 709 F.2d 959 ( 1983 )

Joyce A. Moore v. Kimberly-Clark Corporation , 867 F.2d 243 ( 1989 )

North Mississippi Communications, Inc., and Pamela McPhail ... , 951 F.2d 652 ( 1992 )

prod.liab.rep. (Cch) P 14,158 Dorothy Marie Reeves v. ... , 44 F.3d 300 ( 1995 )

lawrence-r-alberti-v-johnny-klevenhagen-the-sheriff-of-harris-county , 46 F.3d 1347 ( 1995 )

prod.liab.rep. (Cch) P 14,260 Lora Lohr, Michael Lohr, Her ... , 56 F.3d 1335 ( 1995 )

prod.liab.rep. (Cch) P 14,318 Sam Feldt v. Mentor ... , 61 F.3d 431 ( 1995 )

Rowell v. Carter Mobile Homes, Inc. , 500 So. 2d 748 ( 1987 )

Chappuis v. Sears Roebuck & Co. , 358 So. 2d 926 ( 1978 )

Halphen v. Johns-Manville Sales Corp. , 484 So. 2d 110 ( 1986 )

Turner v. General Motors Corp. , 584 S.W.2d 844 ( 1979 )

Shortess v. Touro Infirmary , 520 So. 2d 389 ( 1988 )

Carter v. Johns-Manville Sales Corp. , 557 F. Supp. 1317 ( 1983 )

Carney v. Marathon Oil Co. , 632 F. Supp. 1037 ( 1986 )

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