898 F.2d 146 (4th Cir. 1990), 89-2143, Lee v. Baxter Health Care Corp.

Docket Nº:89-2143.
Citation:898 F.2d 146
Party Name:Linda LEE, Plaintiff-Appellant, v. BAXTER HEALTH CARE CORPORATION, Defendant-Appellee,and Surgitek, Inc.; Mentor Corporation; American Hospital Supply, Defendants.
Case Date:February 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 146

898 F.2d 146 (4th Cir. 1990)

Linda LEE, Plaintiff-Appellant,

v.

BAXTER HEALTH CARE CORPORATION, Defendant-Appellee,and

Surgitek, Inc.; Mentor Corporation; American Hospital Supply, Defendants.

No. 89-2143.

United States Court of Appeals, Fourth Circuit

February 27, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: Jan. 12, 1990.

Appeal from the United States District Court for the District of Maryland at Baltimore. Norman P. Ramsey, District Court Judge. (CA-88-1411-R)

Thomas Patrick Ryan, McCarthy, Wilson & Ethridge, Rockville, Maryland, for appellant.

Linda S. Woolf, Goodell, Devries, Leech & Gray, Baltimore, Maryland, for appellee.

D.Md., 721 F.Supp. 89.

AFFIRMED.

Before ERVIN, Chief Judge, and MURNAGHAN and WILKINSON, Circuit Judges.

PER CURIAM:

Linda Lee ("Lee") brought this action against Baxter Healthcare Corporation ("Baxter"), seeking recovery for personal injuries sustained by her as a result of a ruptured breast prosthesis purportedly manufactured by Baxter. The plea for relief was based on theories of strict liability, negligence and breach of warranty. The district court granted Baxter's motion for summary judgment, finding that: (1) there was no genuine issue of material fact; (2) Lee failed to identify Baxter as the manufacturer of the ruptured prosthesis; (3) the product warning at issue in this case was legally adequate; (4) no evidence of a product defect was offered; and (5) the statute of limitations had expired on the warranty claim. Lee now appeals that decision, focusing this court's attention primarily on the adequacy of the product warning. In response, Baxter claims that this appeal is frivolous because Lee, in her opening brief, did not expressly challenge any of the other independent grounds supporting the district court's grant of summary judgment in Baxter's favor. For this reason, Baxter seeks costs or double costs, attorney's fees and other sanctions. Because Lee has failed to establish two critical elements of her case--that Baxter was the manufacturer of the breast implant and that the disputed product warning was insufficient as a matter of law--the decision of the district court is hereby affirmed. We decline, however, to grant Baxter's request for costs and fees.

I.

The facts of this case are not disputed by the parties. In late 1975 Lee consulted Dr. Bahman Teimourian ("Dr. Teimourian") regarding breast augmentation. On March 3, 1976, after two consultations, Lee underwent breast implant surgery at Suburban Hospital in Montgomery, Maryland. For more than nine years, Lee experienced no difficulties and expressed no complaints with her silicone-filled implants. Then, in November of 1985, Lee detected small nodules in her left breast. Despite the advice of friends and physicians, Lee refused to submit to a biopsy or mammography until August of 1986. At that time, a mammogram revealed that Lee's left prosthesis had ruptured. On September 26, 1986, Lee was examined by Dr. Teimourian, who recommended that both implants be removed and replaced. Consequently, Lee underwent breast explant surgery on October 14, 1986. The surgery confirmed that the left implant had ruptured, and also showed that silicone had leaked out of the prosthesis and invaded the surrounding tissue. In addition, Dr. Teimourian discovered that the right implant had also ruptured and was slowly leaking...

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