Jacobs v. E.I. du Pont de Nemours & Co.

• Decision Date: 19 October 1995
• Docket Number: 93-5978 and 93-6561,Nos. 93-4144,s. 93-4144
• Citation: 67 F.3d 1219
• Parties: , 27 UCC Rep.Serv.2d 1198, Prod.Liab.Rep. (CCH) P 14,378 Doris JACOBS and Phillip Jacobs (93-4144); Patricia A. Adelmann, et al. (93-5978/6561), Plaintiffs-Appellants, v. E.I. DU PONT DE NEMOURS & COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1219

67 F.3d 1219

64 USLW 2264, 27 UCC Rep.Serv.2d 1198,

Prod.Liab.Rep. (CCH) P 14,378

Doris JACOBS and Phillip Jacobs (93-4144); Patricia A.

Adelmann, et al. (93-5978/6561), Plaintiffs-Appellants, v. E.I. DU PONT DE NEMOURS & COMPANY, Defendant-Appellee.

Nos. 93-4144, 93-5978 and 93-6561.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 29, 1994.

Decided Oct. 19, 1995.

Ronald S. Goldser (briefed), Barry G. Reed (argued), Zimmerman & Reed, Minneapolis, MN, David Looney, Blakemore, Meeker, Varian, Looney & Bowler, Akron, OH, for Plaintiffs-Appellants in No. 93-4144.

Laura Kingsley Hong, Robin G. Weaver, Squire, Sanders & Dempsey, Cleveland, OH, Nina M. Gussack, Pepper, Hamilton & Scheetz, Philadelphia, PA, Edward M. Mansfield (argued and briefed), Stephen M. Bressler, Lewis & Roca, Phoenix, AZ, for Defendant-Appellee in No. 93-4144.

David Randolph Smith (argued and briefed), Nashville, TN, for Plaintiffs-Appellants in Nos. 93-5978 and 93-6561.

Edward M. Mansfield (argued), Stephen M. Bressler (briefed), Lewis & Roca, Phoenix, AZ, Mark J. Patterson, Waddey & Patterson, Nashville, TN, for Defendant-Appellee in Nos. 93-5978 and 93-6561.

Before: RYAN and BOGGS, Circuit Judges; and ROSEN, District Judge. ^*

ROSEN, District Judge.

This opinion consolidates the appeals of two actions filed against a common defendant--E.I. du Pont de Nemours & Co. ("Du Pont")--involving similar product liability claims. The claims arose from Du Pont's sale of materials used in an artificial cartilage replacement for the temporomandibular joint ("TMJ"), also known as the jaw joint, called the TMJ Interpositional Implant ("IPI"). The IPI was manufactured and distributed by Vitek, Inc., a now-bankrupt prosthesis manufacturer.

I. PROCEDURAL BACKGROUND

A. JACOBS v. DU PONT

On February 10, 1993, Appellants Doris A. Jacobs and Phillip Jacobs commenced a product liability action against Du Pont, seeking recovery for injuries suffered by Ms. Jacobs allegedly as a result of Teflon ¹ contained in her IPI. The Jacobs alleged defective design and manufacture claims, as well as claims that Du Pont failed to warn end-users about the dangers posed by the use of Teflon in medical implants.

On November 14, 1993, the district court granted Du Pont's motion for summary judgment and dismissed Appellants' complaint.

B. ADELMANN v. DU PONT

On July 17, 1991, Appellants Patricia A. Adelmann and her husband, Randall B. Adelmann, filed a similar four-count complaint against Du Pont. They alleged the following: (1) that Du Pont was strictly liable for (a) the defective design of Teflon as used in the IPI, and/or (b) the failure to warn end-users of the dangers posed by Teflon as used in the IPI; (2) that Du Pont was negligent in failing to test Teflon as used in the IPI and in failing to warn end-users of the dangers posed by Teflon as used in the IPI; (3) that Du Pont was in breach of an implied warranty of merchantability by selling products that were unfit for ordinary purposes; and (4) that Du Pont was liable for fraud in allowing Vitek to use Du Pont's name to market the IPI and in concealing the dangers posed by Teflon as used in the IPI. See Adelmann Jt.App. 15-20. Twenty-five other cases, making the same allegations and brought by the same counsel, were joined to the Adelmann case and are also on appeal.

On February 28, 1992, Du Pont filed a motion for summary judgment before the Hon. Thomas A. Wiseman, Jr., arguing that it had no duty to warn end-users of any known dangers concerning the use of Teflon products in the IPI. ² Appellants responded on June 22, 1992, by moving to compel discovery of, inter alia, "[a]ll legal memoranda (filed with any court), pleadings and court papers, including orders, opinions, or memoranda of the court in connection with any [and] all summary judgment motions filed by DuPont in any TMJ case." See Adelmann Jt.App. 144. On July 9, 1992, Judge Wiseman denied this motion on the grounds that the "[i]nterrogatories and requests are overbroad and [not] reasonably calculated to lead to admissible evidence." See Adelmann Jt.App. 180.

On July 13, 1992, Appellants filed a brief, a statement of facts, and 166 exhibits, all in opposition to Du Pont's summary judgment motion. See Adelmann Jt.App. 594-1197. ³ Judge Wiseman conducted a hearing on Du Pont's motion on September 28, 1992. Shortly after the hearing, Appellants filed a motion to amend their complaint to allege a claim for breach of an implied warranty of fitness for a particular purpose. Before Judge Wiseman could issue an opinion on the pending motions, however, he recused himself on October 1, 1992.

The case was reassigned to the Hon. Robert L. Echols, who heard oral argument on Du Pont's motion for summary judgment on December 7, 1992. At this hearing, Du Pont argued--according to Appellants for the first time--that even if Du Pont had a duty to warn, this duty was discharged under the bulk supplier/sophisticated intermediary doctrine. See Adelmann Jt.App. 529-32 (transcript of 12/7/92 hearing, pp. 15-18). Appellants objected to the procedural propriety of this argument by noting that "[it was] not in their motion that they met the duty." See Adelmann Jt.App. 541 (id., p. 27). However, Appellants also suggested to the court at oral argument that "the record is replete with documents showing that [Du Pont] did not [meet its duty to warn]." See Adelmann Jt.App. 543 (id., p. 29).

Following the hearing, Appellants submitted to the district court a copy of the transcript of Judge Wiseman's hearing, as well as three supplemental briefs in opposition to Du Pont's summary judgment motion. In two of the three memorandum (dated March 19 and April 23, 1993), Appellants focused solely on the question of the bulk supplier/sophisticated intermediary doctrine. See Adelmann Jt.App. 412-21, 1128-38. In particular, the April 23, 1993 brief contained the following argument: "Plaintiffs strenuously state that on this summary judgment record the Court has ample evidence to conclude that it was not reasonable for DuPont to rely upon Vitek." See Adelmann Jt.App. 417 (emphasis added).

On June 22, 1993, the district court entered summary judgment in favor of Du Pont. Appellants moved for relief from the judgment in accordance with Fed.R.Civ.P. 59 on July 22, 1993. The district court denied this motion on November 3, 1993.

For the following reasons, we affirm the district court decisions in both Jacobs and Adelmann granting summary judgment in favor of Appellee Du Pont. ⁴

II. FACTUAL BACKGROUND

A. THE TEMPOROMANDIBULAR JOINT INTERPOSITIONAL IMPLANT.

The operative facts are virtually identical and largely undisputed in both Jacobs and Adelmann. As stated above, Appellants claims arose from Du Pont's sale of materials used in the TMJ Interpositional Implant known as the IPI. The IPI was manufactured and distributed by Vitek, Inc., a now-bankrupt Houston prosthesis manufacturer formed in 1969. Dr. Charles Homsy, ⁵ a former Du Pont employee, was the founder, president, and chief shareholder of Vitek.

Dr. John Kent, an oral surgeon and consultant to Vitek, invented the IPI. See Jacobs Jt.App. 151-52 (Homsy 2/5/92 deposition, pp. 102-103). The device was designed to replace damaged cartilage, known as the meniscus, which is located in the TMJ of the human jaw. The implant is made from two components: (1) Proplast ⁶ and (2) fluorinated ethylene propylene film ("FEP").

Proplast, which Dr. Homsy invented in 1968 while working for Methodist Hospital in Houston, is a composite consisting mainly of polytetrafluoroethylene ("PTFE"), ⁷ a form of Du Pont's plastic product line known as Teflon. To manufacture Proplast, Vitek used an elaborate process to combine the PTFE with salt and either carbon fibers or aluminum oxide fibers. ⁸ Proplast is a soft, spongy substance, which is porous. ⁹ The purpose of Proplast in the IPI is to anchor the implant to the upper bone, which forms the TMJ (the glenoid fossa), which is also the lower portion of the skull. ¹⁰

In order to protect the Proplast in the IPI from pressure caused by the condyle, or jaw bone, which is the other half of the TMJ, Vitek added Du Pont-manufactured FEP film to the IPI. ¹¹ The FEP film was laminated to the surface of the Proplast, to act as a buffer to protect the Proplast from wear inside the TMJ. See Jacobs Jt.App. 163-64 (Homsy 6/6/92 deposition, pp. 201-02). The parties dispute whether the FEP was altered from Du Pont's original form when it became part of the IPI. ¹²

In 1982, Dr. Kent reported to Vitek that, after several years of experimentation, he had successfully used FEP-laminated Proplast in the human TMJ. He further recommended that Vitek introduce a preformed TMJ implant utilizing the same materials. See Jacobs Jt.App. 151-52 (Homsy 2/5/92 deposition, pp. 102-03). Vitek conducted further tests to see if the FEP lamination could withstand the loads in the TMJ, and the results were positive. Id. at 152-56 (Homsy 2/5/92 deposition, pp. 103-07). Vitek began selling the IPI after it received authorization from the U.S. Food and Drug Administration ("FDA") to market the product in early 1983. ¹³

Both PTFE and FEP were part of the IPIs implanted in Ms. Jacobs in 1985 and Ms. Adelmann in 1987. ¹⁴ It is undisputed that the FEP laminate failed to keep the PTFE-containing Proplast from breaking down within and through the FEP film. As the implants broke up, released Proplast and FEP particles caused extensive injuries.

In Ms. Jacob's case, the Proplast and FEP particles generated foreign-body giant cell reactions, which in turn created tumorous masses which ate away at the bones in her jaw. Ms. Jacobs has apparently suffered continuous pain in her jaw when eating or sleeping since the implants were inserted. This pain has continued despite the removal of the implants in May, 1992. Ms. Jacobs also has difficulty opening and closing her jaw, and she suffers from a facial paralysis called ptosis....