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.