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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50563
KEN FITZGERALD, doing business as
Performance Orthapaedics,
Plaintiff-Appellant,
versus
ADVANCED SPINE FIXATIONS SYSTEMS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
June 11, 1998
Before POLITZ,Chief Judge, SMITH and DUHÉ, Circuit Judges.
PER CURIAM:
This case involves an important question of state law which the Texas courts
have not as yet resolved. We therefore have determined that our proper course, in
this diversity jurisdiction case in which we are to apply the law of the State of
Texas, is to certify the central question in this matter to the Supreme Court of
Texas.
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CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS,
PURSUANT TO THE TEXAS CONSTITUTION ART. 5 § 3-C AND TEX. R.
APP. P. 114
TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES
THEREOF:
1.
STYLE OF THE CASE
The style of the case in which this certificate is made is Kenneth C.
Fitzgerald d/b/a/ Performance Orthopedics, Plaintiff-Appellant v. Advanced Spine
Fixation System, Inc., Defendant Appellee, Case No. 97-50563, in the United
States Court of Appeals for the Fifth Circuit, on appeal from the United States
District Court for the Western District of Texas. This case involves a determinative
question of state law and jurisdiction of the case in federal court is based solely on
diversity of citizenship. After oral argument by the parties, the Fifth Circuit has
decided to certify this question to the Honorable Justices of the Texas Supreme
Court.
2.
STATEMENT OF THE CASE
The facts of this case are undisputed. Defendant, Advanced Spine Fixation
System manufactured spinal fixation devices that the plaintiff, Performance
Orthopedics, sold in the El Paso, Texas area. Advanced Spine and Performance
Orthopedics, as well as other manufacturers and sellers, were named as defendants
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in a multi-district litigation1 in the United States District Court for the Eastern
District of Pennsylvania. The complaints, known as the "omni" complaints,
included not only claims of strict products liability, negligence, breach of express
warranty, illegal marketing and promotional activities, intentional and negligent
infliction of emotional distress, and failure to warn, but also claims of conspiracy,
concert of action, aiding and abetting, enterprise liability, and fraud on the
marketplace.
All claims brought against Performance Orthopedics were eventually
dismissed in the multi-district litigation after discovering that Performance
Orthopedics did not sell any of the spinal fixation devices implanted in any plaintiff
who filed suit. Performance Orthopedics subsequently brought this action against
Advanced Spine for indemnification, pursuant to the Products Liability Act of
1993,2 seeking attorney's fees as well as the expenses and costs required to defend
1In Re: Orthopaedic Bone Screw Products Liability Litigation, MDL
Docket No. 1014.
2Manufacturer's Duty to Indemnify
(a) A manufacturer shall indemnify and hold harmless a seller against loss
arising out of a products liability action, except for any loss caused by
the seller's negligence, intentional misconduct, or other act or
omission, such as negligently modifying or altering the product, for
which the seller is independently liable.
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itself in the litigation.
The district court granted Advanced Spine's motion for summary judgment,
concluding that: 1) the industry wide conspiracy theories did constitute a "products
liability action" under the Texas Products Liability Act; 2) the underlying
plaintiff's allegation that Performance Orthopedics engaged in "negligence,
intentional misconduct, or [any] other act or omission..." does not preclude
* * * * *
(e) The duty to indemnify under this section:
(1)
applies without regard to the manner in which the action is
concluded; and
(2)
is in addition to any duty to indemnify established by law,
contract or otherwise.
TEX. CIV. PRAC. & REM. CODE ANN. § 82.002
Definitions
* * * * *
(2)"Products liability action" means any action against a manufacturer or
seller for recovery of damages arising out of personal injury, death, or
property damage allegedly caused by a defective product whether the action
is based in strict tort liability, strict products liability, negligence,
misrepresentation, breach of express or implied warranty, or any other theory
or combination of theories.
* * * * *
(3) "Seller" means a person who is engaged in the business of distributing or
otherwise placing, for any commercial purpose, in the stream of commerce
for use or consumption of a product or any component part thereof.
TEX. CIV. PRAC. & REM. CODE ANN. § 82.001.
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Performance Orthopedics' recovery under the exception to indemnification based
on losses "caused by the seller[]...for which the seller is independently liable"; and
3) the Texas Legislature did not intend to provide indemnity to retailers who did
not sell the "injuring product" to the plaintiffs in the underlying suit. Performance
Orthopedics now appeals the trial court's decision.
3.
QUESTION CERTIFIED
Whether the Texas Products Liability Act of 1993, Tex. Civ. Pract. & Rem. Code
Ann. § 82.002, requires a manufacturer of an injuring product to indemnify a
retailer that was forced to defend itself in products liability litigation even though
the retailer, who sold products of the same or similar type involved in the suit, did
not sell the particular product claimed to have harmed the underlying plaintiff.
4.
CONCLUSION
We disclaim any intention or desire that the Supreme Court of Texas confine
its reply to the precise form or scope of the question certified. The answer provided
by the Supreme Court of Texas will determine the issue on appeal in this case. The
record in this case, together with the copies of the parties' briefs, is transmitted
herewith.
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