DuPont and L.A. Law
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 93-4414 and 93-4626
BARBARA M. KLEM and CALVIN R. KLEM,=20
Plaintiffs-Appellants,=20
versus
E.I. DUPONT DE NEMOURS CO.,=20
Defendant-Appellee.=20
* * * * * * * * * * * * * * *
MARCIA Y. COPELAND, ET AL.,=20
Plaintiffs-Appellants,=20
versus
E.I. DUPONT DE NEMOURS & CO., ET AL.,=20
Defendants,=20
E.I. DUPONT DE NEMOURS & CO.,=20
Defendant-Appellee.=20
Appeals from the United States District Court
for the Western District of Louisiana
(April 18, 1994)
Before HIGGINBOTHAM, and DUH=C9, Circuit Judges, and LITTLE,(1) District =
Judge.=20 HIGGINBOTHAM, Circuit Judge:=20
E.I. DuPont De Nemours & Co. produces a substance called Teflon. Another =
company, Vitek, purchased and altered DuPont's Teflon to create a new, =
patented material, Proplast, which Vitek used to make medical implants. =
DuPont warned Vitek of failed experiments in the past using Teflon in =
implants and required Vitek to take full responsibility for the results =
of its efforts. Vitek accepted this responsibility. DuPont had no =
financial interest in Vitek.=20
Plaintiffs sued DuPont, complaining that they received Vitek implants =
and suffered injuries from failures of Proplast. These suits were filed =
in the state court of Louisiana. DuPont removed them to the Western =
District of Louisiana. Federal jurisdiction rests on diversity of =
citizenship and Louisiana law controls. The district court granted =
summary judgment for DuPont. Plaintiffs appeal. Applying Louisiana law =
as it developed prior to the Louisiana Products Liability Act, we hold =
that DuPont did not manufacture an unreasonably dangerous product and =
that DuPont fulfilled any duty it may have had to warn of its dangers. =
DuPont is not liable for any injuries plaintiffs suffered from Vitek's =
implants.=20
I.
DuPont produces various plastic materials under the trademark name =
Teflon, among them polytetrafluoroethylene.(2) Teflon is used in =
hundreds of products, including nonstick frying pans and support pads on =
which buildings and bridges sit. Teflon also serves as an ingredient, =
sometimes the primary ingredient, in various medical implant devices.=20
The success of such implant devices has been mixed. Reports have long =
indicated that Teflon may not be a suitable component for medical =
implants. Sir John Charnley, an English surgeon who employed Teflon to =
replace worn cartilage in the hip joints of dogs, found that the =
substance abraded or disintegrated causing serious harm. He published =
his conclusions in December 1963. Dr. John Leidholt, an orthopedic =
surgeon in Denver, Colorado, undertook similar experiments with similar =
results. A representative of DuPont corresponded with Dr. Leidholt about =
the doctor's findings as early as 1966.=20
An employee of DuPont, Dr. Charles Homsy, wished to develop implant =
technology using Teflon as an ingredient. Dr. Homsy asked, but DuPont =
declined to participate. Dr. Homsy left DuPont in 1966 to teach at =
Baylor College of Medicine and Methodist Hospital in conjunction with =
its Prosthesis Research Laboratory.=20
The following year Dr. Homsy sought to purchase Teflon from DuPont, but =
DuPont responded that it did not prepare Teflon for medical purposes. =
DuPont also insisted that Dr. Homsy exercise independent judgment =
regarding any medical uses he might make of Teflon insisting that Homsy =
assume full responsibility for the consequences of such uses. Dr. Homsy =
responded by explaining his familiarity with the relevant body of =
scientific knowledge about the use of Teflon in implants and signed a =
letter accepting DuPont's policy. Only then did DuPont sell Teflon to =
Methodist Hospital and Dr. Homsy.=20
By the following year, 1968, Dr. Homsy had developed Proplast, a =
material employing Teflon but altering its physical composition. Dr. =
Homsy designed his process for making Proplast attempting to avoid =
problems of past implants made of Teflon. He obtained a patent on =
Proplast and in 1969 founded Vitek for its manufacture. Vitek undertook =
extensive testing to evaluate Proplast as a material for making medical =
implant devices. These efforts and the work of another scientist(3) =
indicated that Proplast, and substances derived from Teflon in general, =
might prove useful in replacing the meniscus in the temporomandibular =
joint (TMJ), a joint in the jaw in front of the ear. Proplast TMJ =
implants made by Vitek became available in 1974.=20
After passage of the 1976 Medical Device Amendments to the Food, Drug, =
and Cosmetic Act of 1938, DuPont contacted Vitek in 1977 iterating that =
Vitek must render independent judgment as to the suitability of Teflon =
as an ingredient in medical devices. DuPont required assent to this =
policy and compliance with FDA statutes and regulations as a condition =
of its sales of Teflon to Vitek. Vitek and Dr. Homsy assented and =
obtained FDA classification of Proplast. Vitek then obtained FDA =
permission to sell its TMJ implant devices.=20
In the late 1970s, oral surgeons began using Proplast in TMJ =
replacements. Responding to this trend, Vitek began to market a =
pre-formed TMJ implant in 1983. Persons receiving TMJ implants made of =
Vitek's Proplast that contained DuPont's Teflon are now suing alleging =
that Proplast abraded in use, causing serious injury.=20
II. Strict Liability
We must apply Louisiana law governing products liability as set out in =
Halphen v. Johns-Manville Sales Corp.(4) The Louisiana legislature =
overruled an aspect of Halphen in the Louisiana Products Liability =
Act.(5) The Act did not take effect, however, until September 1, 1988, =
and the Louisiana Supreme Court has held that the Act does not apply =
retroactively.(6) The events relevant to this dispute occurred before =
1988. We look to the case law that developed before the Act became =
effective.=20
A manufacturer is liable to a consumer under Louisiana law if (1) a =
condition of its product caused a harm to the consumer; (2) the =
condition made the product unreasonably dangerous to normal use; and (3) =
the condition existed at the time the product left the manufacturer's =
control.(7) There are several categories of unreasonably dangerous =
products. A product is unreasonably dangerous: (1) if the danger =
involved in its use outweighs its utility, it is said to be per se =
unreasonably dangerous; (2) in construction or composition, if it =
contains an unintended abnormality or condition that renders it more =
dangerous than it was designed to be; (3) for lack of warning, if the =
manufacturer failed adequately to warn of the dangers that attend its =
use; or (4) by design, if safer alternative products were available or =
the product could have been designed in a less dangerous manner.(8) =
Plaintiffs must place Teflon within one of these categories.=20
A. Unreasonably Dangerous Per se
A product is unreasonably dangerous per se if it does more harm than =
good in society. Plaintiffs argue that, in making this evaluation, we =
should strike the balance of the harms and benefits only through their =
eyes. We have read Louisiana law as rejecting this approach.(9) =
Louisiana law requires the weighing of costs and benefits to all =
consumers of a product, not just to the plaintiffs.=20
Plaintiffs argue in the alternative that although their suit is against =
DuPont, we should gauge the net utility of TMJ implants, not of the =
ingredient of the implants that DuPont produced. The ambit of inquiry =
into whether a product is dangerous per se includes all and not a =
subclass of users.(10) Louisiana law not only refuses to disaggregate =
different users of a product, it also declines to disaggregate different =
uses of an ingredient in a product.(11) We are constrained by Louisiana =
law not to limit analysis to costs and benefits of Proplast in TMJ =
implants. We ask instead whether Teflon does more harm than good in =
society.=20
Plaintiffs understandably do not contend that harm suffered by users of =
TMJ implants renders Teflon on the whole a harmful substance. Given the =
many productive uses of Teflon, the conclusion that it is not =
unreasonably dangerous per se is inevitable.(12)=20
B. Unreasonably Dangerous
In Construction or Composition
A product is unreasonably dangerous in construction or composition if it =
contains an unintended abnormality or condition that renders it more =
dangerous than it was designed to be. Plaintiffs do not here allege that =
DuPont manufactured and sold Teflon for Vitek's implants that varied =
from the substance DuPont intended to produce.=20
C. Failure to Warn=20
Louisiana law requires a manufacturer not only to keep abreast of =
scientific developments but also to perform its own tests to determine =
that its products are safe.(13) The Louisiana Supreme Court in Halphen =
cited our opinion in Borel v. Fibreboard Paper Products Corp.(14) In =
Borel we held:=20
The manufacturer's status as an expert means that at a minimum he must =
keep abreast of scientific knowledge, discoveries, and advances and is =
presumed to know what is imparted thereby. But even more importantly, a =
manufacturer has a duty to test and inspect his product. The extent of =
research and experiment must be commensurate with the dangers involved. =
A product must not be made available to the public without disclosure of =
those dangers that the application of reasonable foresight would reveal. =
Nor may a manufacturer rely unquestioningly on others to sound the hue =
and cry concerning danger in its product. Rather, each manufacturer must =
bear the burden of showing that its own conduct was proportionate to the =
scope of its duty.(15)=20
As lofty as this language is, the Louisiana courts have never held that =
the manufacturer of a component part of a finished product has a duty to =
the ultimate consumer to test the suitability of the component for its =
use in the finished product.=20
We reach now the most difficult question in this case: Where does the =
responsibility lie to assess and warn a consumer of the appropriateness =
of use of a component or ingredient in a product? DuPont made an effort =
to act responsibly. DuPont informed Vitek, as DuPont does other =
potential customers, that DuPont does not produce a medical grade Teflon =
and has not adequately tested the substance for use in medical devices. =
DuPont required Vitek to assume responsibility for testing Proplast, the =
product Vitek developed from Teflon. Vitek also sought and received both =
a patent and FDA approval for Proplast.=20
Further, DuPont was not involved in the development of Proplast. Vitek =
and DuPont were independent companies. DuPont made no gains from the =
sale of Vitek's products other than the price of the Teflon DuPont sold =
Vitek. This amount was a tiny percentage of the value of each implant =
and an even tinier percentage of DuPont's total sales of Teflon. DuPont =
exercised no control over the design, composition, testing, or =
manufacture of Proplast or the TMJ implants. Our review of Louisiana law =
suggests that DuPont fulfilled any obligation it had to warn of the =
dangers of Teflon.=20
A Louisiana court in Reeves v. Great Atlantic & Pacific Tea Co.(16) =
held: "The mere supplier of a component part of a finished product is =
not liable for damages in tort, absent a showing that the injury was =
caused by a defect contained in the component part, rather than a defect =
contained in the finished product."(17) Expanding on this notion, a =
Louisiana court in Champion v. Panel Era Mfg. Co.(18) addressed the =
problem of liability that arises when a product proves to be harmful in =
its application as a component of another product. In Champion, =
insulation material used in chicken houses caused the houses to erode =
prematurely. A jury found the manufacturer of the chicken houses liable =
for the damage that resulted but, in a third party action, refused to =
find the manufacturers of components in the insulation material liable =
to the manufacturer of the chicken houses.(19) In affirming the jury =
verdict on appeal, the court noted that a finished product manufacturer =
has the obligation to ascertain whether a component is appropriate for =
its intended use.(20)=20
A Louisiana court in Longo v. DuPont recently adopted a similar approach =
in assessing the relationship between DuPont, Vitek, and recipients of =
Vitek's implants. The court reasoned:=20
Teflon was a component part of Proplast and therefore DuPont owed no =
duty to warn [implant recipients]. Vitek became the manufacturer. While =
DuPont may have sold Teflon to Vitek knowing the possibility existed =
that products manufactured with Teflon as a component part would be used =
in medical and surgical applications, it had no control over the design, =
composition, testing, or manufacture of Vitek products.(21)=20
The court concluded that DuPont had no duty to warn the recipients of =
Vitek's implants.(22)=20
DuPont informed Vitek of danger in using Teflon in implants. But Vitek =
went its own way with its own expertise and its own testing. Vitek =
altered Teflon, creating a distinct potential product, Proplast, in an =
effort to cure the problems scientists confronted in the past when using =
Teflon in implants. As we earlier noted, Vitek also secured FDA approval =
for the use of Proplast. Under these circumstances and in light of =
Longo, we conclude that DuPont fulfilled any obligation it had to warn =
of the dangers of using Teflon in medical implants.=20
D. Unreasonably Dangerous by Design
A product is unreasonably dangerous by design if it could have been =
safer had it been designed differently or if a different product could =
have served the same purpose and posed less danger.(23) DuPont did not, =
however, design Teflon for use in medical implants. To the contrary, =
DuPont made clear to Dr. Homsy that such use could be dangerous. =
Further, DuPont insisted that if Dr. Homsy persisted in using Teflon in =
implant devices, he had to do so with his own research and at his own =
risk. Dr. Homsy chose to adapt Teflon for use in implants because he =
believed the substance held particular promise. If DuPont had designed =
Teflon otherwise, it would not have been Teflon. Similarly, if a =
different product would have served more safely in its stead, Dr. Homsy =
erred by choosing Teflon for use in TMJ implants. The design of Teflon =
was not, in this context, defective. Any fault lay with Homsy's =
selection. Teflon therefore is not unreasonably dangerous in design.(24) =
III. Negligence, Negligence Per Se, Redhibition,
False Representation, and Other Causes of Action
Plaintiffs contend, in the alternative, that DuPont had a duty to warn, =
or not to mislead by implication, and that the breach of that duty =
sounded in negligence, redhibition, and other areas of the law. These =
arguments essentially duplicate plaintiffs' failure to warn claim under =
Halphen, and the result is the same. The label placed on DuPont's =
activities does not change DuPont's responsibilities or its fulfillment =
of them.(25) Nor does the fact that DuPont let it be known that its =
product, Teflon, was an ingredient in Vitek's medical implants.(26) We =
conclude that DuPont met any duty it may have had when it informed Vitek =
that it did not make a medical grade Teflon and that it had not tested =
the substance adequately for medical use. As a matter of Louisiana law, =
at least as it existed prior to the Louisiana Products Liability Act, =
DuPont had no further obligation to warn.=20
AFFIRMED.=20
1. District Judge of the Western District of Louisiana, sitting by =
designation.=20
2. Plaintiffs appeal from a grant of summary judgment, so we summarize =
the facts in the light most favorable to them. See Anderson v. Liberty =
Lobby, Inc., 477 U.S. 242, 255 (1986).=20
3. British researcher Dr. H. P. Cook reached this conclusion in 1972.=20
4. 484 So.2d 110 (La. 1986).=20
5. Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La. 1991).=20
6. Id.=20
7. Antley v. Yamaha Motor Corp., 539 So.2d 696, 699-700 (La. App. 3d =
Cir. 1989) (citing Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 =
(La. 1986)).=20
8. Halphen, 484 So.2d at 114-15. These categories overlap. A product, =
for example, that is unreasonably dangerous per se--that is, its danger =
outweighs its utility--also qualifies as unreasonably dangerous by =
design. Id. The four approaches listed, although they are at times =
referred to by different labels under Louisiana law, exhaust the various =
definitions of unreasonable dangerousness under Halphen.=20
9. See Valenti v. Surgiteck-Flash Medical Eng'g Corp., 875 F.2d 466, 467 =
(5th Cir. 1989) (rejecting analysis of whether dangers to plaintiff =
posed by product outweighed utility to plaintiff).=20
10. See Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 707 (La. App. 1 =
Cir.), writ denied, 605 So.2d 1100 (La. 1992) (refusing to limit =
analysis of utility of aspirin to children users).=20
11. See Longo v. E.I. DuPont De Nemours & Co., No. 93-CA-0756, 1994 La. =
App. LEXIS 300 at *10 (La. App. 4th Cir. Feb. 18, 1994) (applying law =
prior to Louisiana Products Liability Act).=20
12. See id. This method of analysis supports the same result if one =
addresses the harms and benefits of a particular form of Teflon, =
polytetrafluoroethylene.=20
13. Halphen, 484 So.2d at 115.=20
14. 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).=20
15. Id. at 1090 (footnotes and citations omitted).=20
16. 370 So.2d 202, 209 (La. App. 3d Cir.), writ denied, 371 So.2d 835 =
(La. 1979).=20
17. Reeves, 370 So.2d at 209.=20
18. 410 So.2d 1230 (La. App. 3d Cir.), writ denied, 414 So.2d 389 (La. =
1982).=20
19. Id. at 1234, 1241.=20
20. Id. at 1241-42.=20
21. Longo, 1994 La. App. LEXIS 300 at *13.=20
22. Id.=20
23. Halphen, 484 So.2d at 115.=20
24. See Longo, 1994 La. App. LEXIS 300 at *11-12.=20
25. The court in Longo, for example, limited DuPont's duty to warn in =
strict liability by looking to the obligation of the manufacturer of a =
component in redhibition. See Longo, 1994 La. App. Lexis 300 at *12-13 =
(relying on Austin's of Monroe, Inc. v. Brown, 474 So.2d 1383 (La. App. =
2d Cir. 1985) ("The manufacturer of a non-defective, even though =
substantial, component of a thing assembled and created by another =
should not be liable to the buyer of that thing for redhibitory vices in =
the assembled and created thing. In this sense, the assembler or creator =
of the thing from component parts effectively becomes the manufacturer =
of the thing.")).=20
26. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978), on which =
plaintiffs rely, does not hold the contrary. Chappuis addressed the =
liability of the manufacturer of a defective product and of a subsequent =
party that sold the product under its own name. Id. at 930. DuPont did =
not sell Vitek's product at all, much less under its own name.=20
BARBARA M. KLEM and CALVIN R. KLEM,=20
Plaintiffs-Appellants,
E.I. DUPONT DE NEMOURS CO., Defendant-Appellee.
MARCIA Y. COPELAND, ET AL.,=20
Plaintiffs-Appellants,
E.I. DUPONT DE NEMOURS & CO., ET AL.,=20
Defendants, E.I. DUPONT DE NEMOURS & CO.,=20
Defendant-Appellee.
Before HIGGINBOTHAM, and DUHÉ, Circuit Judges, and LITTLE, HIGGINBOTHAM, Circuit Judge:=20
E.I. DuPont De Nemours & Co. produces a substance called Teflon. =
Another=20
company, Vitek, purchased and altered DuPont's Teflon to create a new, =
patented=20
material, Proplast, which Vitek used to make medical implants. DuPont =
warned=20
Vitek of failed experiments in the past using Teflon in implants and =
required=20
Vitek to take full responsibility for the results of its efforts. Vitek =
accepted=20
this responsibility. DuPont had no financial interest in Vitek.=20
Plaintiffs sued DuPont, complaining that they received Vitek implants =
and=20
suffered injuries from failures of Proplast. These suits were filed in =
the state=20
court of Louisiana. DuPont removed them to the Western District of =
Louisiana.=20
Federal jurisdiction rests on diversity of citizenship and Louisiana law =
controls. The district court granted summary judgment for DuPont. =
Plaintiffs=20
appeal. Applying Louisiana law as it developed prior to the Louisiana =
Products=20
Liability Act, we hold that DuPont did not manufacture an unreasonably =
dangerous=20
product and that DuPont fulfilled any duty it may have had to warn of =
its=20
dangers. DuPont is not liable for any injuries plaintiffs suffered from =
Vitek's=20
implants.=20
DuPont produces various plastic materials under the trademark name =
Teflon,=20
among them polytetrafluoroethylene.(2) =
Teflon is=20
used in hundreds of products, including nonstick frying pans and support =
pads on=20
which buildings and bridges sit. Teflon also serves as an ingredient, =
sometimes=20
the primary ingredient, in various medical implant devices.=20
The success of such implant devices has been mixed. Reports have long =
indicated that Teflon may not be a suitable component for medical =
implants. Sir=20
John Charnley, an English surgeon who employed Teflon to replace worn =
cartilage=20
in the hip joints of dogs, found that the substance abraded or =
disintegrated=20
causing serious harm. He published his conclusions in December 1963. Dr. =
John=20
Leidholt, an orthopedic surgeon in Denver, Colorado, undertook similar=20
experiments with similar results. A representative of DuPont =
corresponded with=20
Dr. Leidholt about the doctor's findings as early as 1966.=20
An employee of DuPont, Dr. Charles Homsy, wished to develop implant=20
technology using Teflon as an ingredient. Dr. Homsy asked, but DuPont =
declined=20
to participate. Dr. Homsy left DuPont in 1966 to teach at Baylor College =
of=20
Medicine and Methodist Hospital in conjunction with its Prosthesis =
Research=20
Laboratory.=20
The following year Dr. Homsy sought to purchase Teflon from DuPont, =
but=20
DuPont responded that it did not prepare Teflon for medical purposes. =
DuPont=20
also insisted that Dr. Homsy exercise independent judgment regarding any =
medical=20
uses he might make of Teflon insisting that Homsy assume full =
responsibility for=20
the consequences of such uses. Dr. Homsy responded by explaining his =
familiarity=20
with the relevant body of scientific knowledge about the use of Teflon =
in=20
implants and signed a letter accepting DuPont's policy. Only then did =
DuPont=20
sell Teflon to Methodist Hospital and Dr. Homsy.=20
By the following year, 1968, Dr. Homsy had developed Proplast, a =
material=20
employing Teflon but altering its physical composition. Dr. Homsy =
designed his=20
process for making Proplast attempting to avoid problems of past =
implants made=20
of Teflon. He obtained a patent on Proplast and in 1969 founded Vitek =
for its=20
manufacture. Vitek undertook extensive testing to evaluate Proplast as a =
material for making medical implant devices. These efforts and the work =
of=20
another scientist(3) indicated that =
Proplast, and=20
substances derived from Teflon in general, might prove useful in =
replacing the=20
meniscus in the temporomandibular joint (TMJ), a joint in the jaw in =
front of=20
the ear. Proplast TMJ implants made by Vitek became available in 1974.=20
After passage of the 1976 Medical Device Amendments to the Food, =
Drug, and=20
Cosmetic Act of 1938, DuPont contacted Vitek in 1977 iterating that =
Vitek must=20
render independent judgment as to the suitability of Teflon as an =
ingredient in=20
medical devices. DuPont required assent to this policy and compliance =
with FDA=20
statutes and regulations as a condition of its sales of Teflon to Vitek. =
Vitek=20
and Dr. Homsy assented and obtained FDA classification of Proplast. =
Vitek then=20
obtained FDA permission to sell its TMJ implant devices.=20
In the late 1970s, oral surgeons began using Proplast in TMJ =
replacements.=20
Responding to this trend, Vitek began to market a pre-formed TMJ implant =
in=20
1983. Persons receiving TMJ implants made of Vitek's Proplast that =
contained=20
DuPont's Teflon are now suing alleging that Proplast abraded in use, =
causing=20
serious injury.=20
We must apply Louisiana law governing products liability as set out =
in=20
Halphen v. Johns-Manville Sales Corp.(4)=20
The Louisiana legislature overruled an aspect of Halphen in the =
Louisiana=20
Products Liability Act.(5) The Act did =
not take=20
effect, however, until September 1, 1988, and the Louisiana Supreme =
Court has=20
held that the Act does not apply retroactively. A manufacturer is liable to a consumer under Louisiana law if (1) a =
condition=20
of its product caused a harm to the consumer; (2) the condition made the =
product=20
unreasonably dangerous to normal use; and (3) the condition existed at =
the time=20
the product left the manufacturer's control.(7)=20
There are several categories of unreasonably dangerous products. A =
product is=20
unreasonably dangerous: (1) if the danger involved in its use outweighs =
its=20
utility, it is said to be per se unreasonably dangerous; (2) in =
construction or=20
composition, if it contains an unintended abnormality or condition that =
renders=20
it more dangerous than it was designed to be; (3) for lack of warning, =
if the=20
manufacturer failed adequately to warn of the dangers that attend its =
use; or=20
(4) by design, if safer alternative products were available or the =
product could=20
have been designed in a less dangerous manner.(8)=20
Plaintiffs must place Teflon within one of these categories.=20
A product is unreasonably dangerous per se if it does more harm than =
good in=20
society. Plaintiffs argue that, in making this evaluation, we should =
strike the=20
balance of the harms and benefits only through their eyes. We have read=20
Louisiana law as rejecting this approach.(9)=20
Louisiana law requires the weighing of costs and benefits to all =
consumers of a=20
product, not just to the plaintiffs.=20
Plaintiffs argue in the alternative that although their suit is =
against=20
DuPont, we should gauge the net utility of TMJ implants, not of =
the=20
ingredient of the implants that DuPont produced. The ambit of =
inquiry=20
into whether a product is dangerous per se includes all and not a =
subclass of=20
users.(10) Louisiana law not only =
refuses to=20
disaggregate different users of a product, it also declines to=20
disaggregate different uses of an ingredient in a product. Plaintiffs understandably do not contend that harm suffered by users =
of TMJ=20
implants renders Teflon on the whole a harmful substance. Given the many =
productive uses of Teflon, the conclusion that it is not unreasonably =
dangerous=20
per se is inevitable.(12)=20
A product is unreasonably dangerous in construction or composition if =
it=20
contains an unintended abnormality or condition that renders it more =
dangerous=20
than it was designed to be. Plaintiffs do not here allege that DuPont=20
manufactured and sold Teflon for Vitek's implants that varied from the =
substance=20
DuPont intended to produce.
Louisiana law requires a manufacturer not only to keep abreast of =
scientific=20
developments but also to perform its own tests to determine that its =
products=20
are safe.(13) The Louisiana Supreme =
Court in=20
Halphen cited our opinion in Borel v. Fibreboard Paper =
Products=20
Corp.(14) In Borel we held: =
The manufacturer's status as an expert means that at a minimum he =
must keep=20
abreast of scientific knowledge, discoveries, and advances and is =
presumed to=20
know what is imparted thereby. But even more importantly, a manufacturer =
has a=20
duty to test and inspect his product. The extent of research and =
experiment must=20
be commensurate with the dangers involved. A product must not be made =
available=20
to the public without disclosure of those dangers that the application =
of=20
reasonable foresight would reveal. Nor may a manufacturer rely =
unquestioningly=20
on others to sound the hue and cry concerning danger in its product. =
Rather,=20
each manufacturer must bear the burden of showing that its own conduct =
was=20
proportionate to the scope of its duty.(15)=20
As lofty as this language is, the Louisiana courts have never held =
that the=20
manufacturer of a component part of a finished product has a duty to the =
ultimate consumer to test the suitability of the component for its use =
in the=20
finished product.=20
We reach now the most difficult question in this case: Where does the =
responsibility lie to assess and warn a consumer of the appropriateness =
of use=20
of a component or ingredient in a product? DuPont made an effort to act=20
responsibly. DuPont informed Vitek, as DuPont does other potential =
customers,=20
that DuPont does not produce a medical grade Teflon and has not =
adequately=20
tested the substance for use in medical devices. DuPont required Vitek =
to assume=20
responsibility for testing Proplast, the product Vitek developed from =
Teflon.=20
Vitek also sought and received both a patent and FDA approval for =
Proplast.=20
Further, DuPont was not involved in the development of Proplast. =
Vitek and=20
DuPont were independent companies. DuPont made no gains from the sale of =
Vitek's=20
products other than the price of the Teflon DuPont sold Vitek. This =
amount was a=20
tiny percentage of the value of each implant and an even tinier =
percentage of=20
DuPont's total sales of Teflon. DuPont exercised no control over the =
design,=20
composition, testing, or manufacture of Proplast or the TMJ implants. =
Our review=20
of Louisiana law suggests that DuPont fulfilled any obligation it had to =
warn of=20
the dangers of Teflon.=20
A Louisiana court in Reeves v. Great Atlantic & Pacific Tea =
Co. A Louisiana court in Longo v. DuPont recently adopted a =
similar=20
approach in assessing the relationship between DuPont, Vitek, and =
recipients of=20
Vitek's implants. The court reasoned:=20
Teflon was a component part of Proplast and therefore DuPont owed no =
duty to=20
warn [implant recipients]. Vitek became the manufacturer. While DuPont =
may have=20
sold Teflon to Vitek knowing the possibility existed that products =
manufactured=20
with Teflon as a component part would be used in medical and surgical=20
applications, it had no control over the design, composition, testing, =
or=20
manufacture of Vitek products.(21)=20
The court concluded that DuPont had no duty to warn the recipients of =
Vitek's=20
implants.(22)=20
DuPont informed Vitek of danger in using Teflon in implants. But =
Vitek went=20
its own way with its own expertise and its own testing. Vitek altered =
Teflon,=20
creating a distinct potential product, Proplast, in an effort to cure =
the=20
problems scientists confronted in the past when using Teflon in =
implants. As we=20
earlier noted, Vitek also secured FDA approval for the use of Proplast. =
Under=20
these circumstances and in light of Longo, we conclude that =
DuPont=20
fulfilled any obligation it had to warn of the dangers of using Teflon =
in=20
medical implants.=20
A product is unreasonably dangerous by design if it could have been =
safer had=20been designed differently or if a different product could have served =
the=20
same purpose and posed less danger.(23) DuPont=20
did not, however, design Teflon for use in medical implants. To the =
contrary,=20
DuPont made clear to Dr. Homsy that such use could be dangerous. =
Further, DuPont=20
insisted that if Dr. Homsy persisted in using Teflon in implant devices, =
he had=20
to do so with his own research and at his own risk. Dr. Homsy chose to =
adapt=20
Teflon for use in implants because he believed the substance held =
particular=20
promise. If DuPont had designed Teflon otherwise, it would not have been =
Teflon.=20
Similarly, if a different product would have served more safely in its =
stead,=20
Dr. Homsy erred by choosing Teflon for use in TMJ implants. The design =
of Teflon=20
was not, in this context, defective. Any fault lay with Homsy's =
selection.=20
Teflon therefore is not unreasonably dangerous in design.
Plaintiffs contend, in the alternative, that DuPont had a duty to =
warn, or=20
not to mislead by implication, and that the breach of that duty sounded =
in=20
negligence, redhibition, and other areas of the law. These arguments =
essentially=20
duplicate plaintiffs' failure to warn claim under Halphen, and =
the result=20
is the same. The label placed on DuPont's activities does not change =
DuPont's=20
responsibilities or its fulfillment of them.(25)=20
Nor does the fact that DuPont let it be known that its product, Teflon, =
was an=20
ingredient in Vitek's medical implants.(26) We=20
conclude that DuPont met any duty it may have had when it informed Vitek =
that it=20
did not make a medical grade Teflon and that it had not tested the =
substance=20
adequately for medical use. As a matter of Louisiana law, at least as it =
existed=20
prior to the Louisiana Products Liability Act, DuPont had no further =
obligation=20
to warn.=20
AFFIRMED.=20
1. District Judge of the Western District of =
Louisiana,=20
sitting by designation.=20
2. Plaintiffs appeal from a grant of summary =
judgment, so we=20
summarize the facts in the light most favorable to them. See =
Anderson=20
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).=20
3. British researcher Dr. H. P. Cook reached this =
conclusion=20
in 1972.=20
4. 484 So.2d 110 (La. 1986).=20
5. Gilboy v. American Tobacco Co., 582 =
So.2d 1263,=20
1264 (La. 1991).=20
6. Id.=20
7. Antley v. Yamaha Motor Corp., 539 So.2d =
696,=20
699-700 (La. App. 3d Cir. 1989) (citing Halphen v. Johns-Manville =
Sales=20
Corp., 484 So.2d 110 (La. 1986)).=20
8. Halphen, 484 So.2d at 114-15. These =
categories=20
overlap. A product, for example, that is unreasonably dangerous per =
se--that is,=20
its danger outweighs its utility--also qualifies as unreasonably =
dangerous by=20
design. Id. The four approaches listed, although they are at =
times=20
referred to by different labels under Louisiana law, exhaust the various =
definitions of unreasonable dangerousness under Halphen.=20
9. See Valenti v. Surgiteck-Flash =
Medical Eng'g=20
Corp., 875 F.2d 466, 467 (5th Cir. 1989) (rejecting analysis of =
whether=20
dangers to plaintiff posed by product outweighed utility to plaintiff).=20
10. See Sharkey v. Sterling Drug, =
Inc., 600=20
So.2d 701, 707 (La. App. 1 Cir.), writ denied, 605 So.2d 1100 =
(La. 1992)=20
(refusing to limit analysis of utility of aspirin to children users).=20
11. See Longo v. E.I. DuPont De Nemours =
&=20
Co., No. 93-CA-0756, 1994 La. App. LEXIS 300 at *10 (La. App. 4th =
Cir. Feb.=20
18, 1994) (applying law prior to Louisiana Products Liability Act).=20
12. See id. This method of analysis =
supports=20
the same result if one addresses the harms and benefits of a particular =
form of=20
Teflon, polytetrafluoroethylene.=20
13. Halphen, 484 So.2d at 115.=20
14. 493 F.2d 1076 (5th Cir. 1973), cert. =
denied, 419=20
U.S. 869 (1974).=20
15. Id. at 1090 (footnotes and citations =
omitted).=20
16. 370 So.2d 202, 209 (La. App. 3d Cir.), =
writ=20
denied, 371 So.2d 835 (La. 1979).=20
17. Reeves, 370 So.2d at 209.=20
18. 410 So.2d 1230 (La. App. 3d Cir.), writ =
denied,=20
414 So.2d 389 (La. 1982).=20
19. Id. at 1234, 1241.=20
20. Id. at 1241-42.=20
21. Longo, 1994 La. App. LEXIS 300 at *13. =
22. Id.=20
23. Halphen, 484 So.2d at 115.=20
24. See Longo, 1994 La. App. LEXIS =
300 at=20
*11-12.=20
25. The court in Longo, for example, =
limited=20
DuPont's duty to warn in strict liability by looking to the obligation =
of the=20
manufacturer of a component in redhibition. See Longo, =
1994 La.=20
App. Lexis 300 at *12-13 (relying on Austin's of Monroe, Inc. v. =
Brown,=20
474 So.2d 1383 (La. App. 2d Cir. 1985) ("The manufacturer of a=20
non-defective, even though substantial, component of a thing assembled =
and=20
created by another should not be liable to the buyer of that thing for=20
redhibitory vices in the assembled and created thing. In this sense, the =
assembler or creator of the thing from component parts effectively =
becomes the=20
manufacturer of the thing.")).=20
26. Chappuis v. Sears Roebuck & Co., =
358 So.2d=20
926 (La. 1978), on which plaintiffs rely, does not hold the contrary.=20
Chappuis addressed the liability of the manufacturer of a =
defective=20
product and of a subsequent party that sold the product under its own =
name.=20
Id. at 930. DuPont did not sell Vitek's product at all, much less =
under=20
its own name.
Copyrighted By Angels United On TMJ!
ANGELS UNITED IS UN-COVERING THE TRUTH ON TMJ!
TMJD_SAFE_HAVEN_4_LIFE_ISSUES ยท TMJ SUPPORT GROUP
This TMJD Support Group is intended to be a Safe Haven and provide a place where people with TMJ pain can come and offer and receive support from people who know what they are going through. This is not a medical group and we do not have medical degrees or medical backgrounds. However, with the variety of members in here, there is bound to be someone who has been there and done that and can answer your questions.
This group is in memory of Debbie Ward whom suffered from TMJD & died of unknown causes.
There are many types of members with TMJD. Some have been treated medically, some treated with various splint therapies and physical therapies as well as some with surgical treatments ranging from Arthroscopy to full jaw joint replacements. Everyone with any degree of TMJD or has a family member that deals with it is welcome to join and offer and receive support that we all so badly need to get through each day with the pain we have to live with.
It is YOUR place to cry, scream or vent on the pain you are dealing with and how it is affecting your life and the lives of your loved ones. The group is MODERATED to avoid the unsolicited advertisements and spam. We are all in pain and do not need to have to deal with that too.
TMJ SURGERY FAMILY!.
A Great Place to Share Information! This site is for sharing and is not a substitute for the advise of your physician/oral surgeon. Please consult with your health care professional.
Can not be placed on any other web site or any support groups without:
the written permission of ANGELS UNITED ON TMJ!
"COPYRIGHT Feb. 2001" By Angels United On TMJ!
ANGELS UNITED ON TMJ!
WE ARE ANGELS UNITED TOGETHER TO MAKE THIS NET WORK!!
