Kennedy v. Baxter Healthcare Corp., 02-3321.

• Decision Date: 21 May 2003
• Docket Number: No. 02-3321.,No. 02-3516.,02-3321.,02-3516.
• Citation: 348 F.3d 1073
• Parties: Mary Beth KENNEDY, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION; Defendant-Appellee, Baxter International, Inc.; Baxter Healthcare SA; Allegiance Healthcare Corporation; Allegiance Corporation, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

348 F.3d 1073

Mary Beth KENNEDY, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION; Defendant-Appellee Baxter International, Inc.; Baxter Healthcare SA; Allegiance Healthcare Corporation; Allegiance Corporation, Defendants.

No. 02-3321.

No. 02-3516.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2003.

Filed: May 21, 2003.

Thomas C. Atmore, Edward W. Gale, Leonard & O'Brien, St. Paul, MN, Leslie J. Bryan, Ralph I. Knowles, Jr., Doffermyre & Shields, Atlanta, GA, for Plaintiff-Appellant.

Kim M. Schmid, David S. Miller, Bowman & Brooke, Minneapolis, MN, John A. Rothstein, Quarles & Brady, Milwaukee, WI, Michael J. Philippi, Kathleen Holper Champagne, John P. Buckley, Ungaretti & Harris, Chicago, IL, Diane P. Sullivan, Princeton Pike Corporate Center, Princeton, NJ, for Defendant-Appellee.

Before LOKEN, Chief Judge, FAGG and MURPHY, Circuit Judges.

PER CURIAM.

It is hereby ordered at the direction of the court that the unpublished per curiam opinion filed on May 21, 2003, be published.

(5228-010199)

Mary Beth Kennedy, who worked as a registered nurse from 1986 until 1997, brought this diversity action against Baxter International Corp., a manufacturer of latex gloves, alleging the gloves caused her to develop a life-threatening allergy to the gloves' proteins. Kennedy asserted claims of design defect and failure to warn. A jury returned a verdict in favor of Baxter. On appeal, Kennedy contends the district court^* abused its discretion when it made two evidentiary rulings. Specifically, Kennedy asserts the district court should not have admitted testimony and a document about Food and Drug Administration (FDA) employee statements to glove manufacturers that the FDA did not want allergy warnings on rubber gloves. The district court did not abuse its discretion in admitting this evidence, however, because the informal FDA pronouncements were probative of whether Baxter acted reasonably in designing, labeling, and selling its rubber gloves. Kennedy also contends the district court should have admitted a medical opinion by her expert on the issue of product defect. The district court did not abuse its discretion in excluding the evidence before trial because the expert, who is not a physician or a toxicologist, was unqualified to give an opinion about what makes a rubber glove safe or unsafe for allergy purposes or what level of proteins or allergens are necessary to achieve a safe level for allergy purposes.

Because the...