Parker v. E.I. DuPont de Nemours & Co., Inc.

• Decision Date: 06 July 1995
• Docket Number: No. 15,570,15,570
• Citation: 909 P.2d 1,121 N.M. 120,1995 NMCA 86
• Parties: , Prod.Liab.Rep. (CCH) P 14,456 Denise I. PARKER (f/k/a Denise I. Gillette) and Michael D. Parker, Plaintiffs-Appellants, v. E.I. DU PONT DE NEMOURS & CO., INC., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1

909 P.2d 1

121 N.M. 120, Prod.Liab.Rep. (CCH) P 14,456

Denise I. PARKER (f/k/a Denise I. Gillette) and Michael D.

Parker, Plaintiffs-Appellants, v. E.I. DU PONT DE NEMOURS & CO., INC., Defendant-Appellee.

No. 15,570.

Court of Appeals of New Mexico.

July 6, 1995.

Carolyn N. Merchant, Turpen & Merchant, Remo E. Gay, Jr., Henkel, Sloan & Gay, P.C., Albuquerque, for Plaintiffs-Appellants.

Barry Fish, Edward M. Mansfield, Bret A. Maidman, Lewis and Roca LLP, Phoenix, Arizona, Kenneth L. Harrigan, Kathryn D. Lucero, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for Defendant-Appellee.

OPINION

DONNELLY, Judge.

Plaintiffs, Denise I. Parker and Michael D. Parker, husband and wife, appeal from an order of the district court granting summary judgment and dismissing their personal injury claims against Defendant, E.I. Du Pont de Nemours & Co. (Du Pont). The district court found that no genuine issue of material fact existed precluding summary judgment, and the court determined as a matter of law that Du Pont owed no duty to Plaintiffs under strict liability, negligence, or other tort or statutory remedies. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Denise Parker underwent bilateral surgery in October 1983 for the implantation of artificial temporomandibular joints (TMJ). The TMJ implants inserted by oral surgeons in Denise Parker's jaw were designed, manufactured, and distributed by Vitek, Inc. (Vitek), utilizing Proplast, a patented and trademarked substance made by Vitek. Vitek is not a party to the present action.

Following the marketing and use of Vitek's TMJ implants, Denise Parker and certain other patients who had received such implants began to experience problems. Plaintiffs alleged in the instant case that Vitek's artificial joints which had been surgically implanted in Denise Parker deteriorated, and, as a result, she suffered severe complications, necessitating that the TMJ implants be removed and replaced by rib grafts. Plaintiffs also alleged that as a result of the defective TMJ implants Denise Parker suffered a granulomatous reaction, giant cell reaction, bone erosion and migration of Teflon particles into her lymph system. After a number of suits were filed against Vitek, it filed for bankruptcy. At all times material hereto, Vitek was an independent corporation that was neither owned nor controlled by Du Pont.

Proplast, the material used in the manufacture of the Vitek TMJ implants, was made by combining polytetrafluoroethylene (PTFE) with carbon or aluminum oxide. The mixture was then subjected to a process that included filtrating, compressing, rolling, drying, and heating the material to temperatures above 600 degrees Fahrenheit under high pressure. Finally, the material was leached and redried. During the application of heat and pressure, the PTFE became a gel and coalesced with other ingredients. In manufacturing its TMJ implants, Vitek also utilized a pure form of fluorinated ethylene propylene (FEP) which was laminated to one part of the prosthesis. Du Pont manufactured and sold PTFE and FEP in bulk to Vitek and others; the PTFE was supplied either in resin, powder, or fiber form. Du Pont sells PTFE and FEP under the trademark "Teflon."

After Vitek filed for bankruptcy, Plaintiffs filed suit against Du Pont. Their amended complaint alleged that Du Pont negligently assisted Vitek in obtaining an exemption from the Food and Drug Administration (FDA) to market the TMJ implants; that the TMJ implants marketed by Vitek were misbranded; that Du Pont had a duty to warn or to ensure that Vitek warned oral surgeons, hospitals, and Plaintiffs concerning the risks of having an implant made from PTFE or FEP inserted in patients' jaws; that Du Pont was liable to Plaintiffs for negligence under the theory of products liability; that Du Pont was negligent per se; that Du Pont was guilty of misrepresentation or fraud; that Du Pont violated New Mexico's Unfair Trade Practices Act; that Du Pont was strictly liable to Plaintiffs for conducting an ultrahazardous activity; and that Du Pont was jointly and severally liable to Plaintiffs, together with Vitek.

The TMJ implants manufactured by Vitek were designed by Dr. Charles Homsy, Vitek's president. Homsy is a chemical engineer who invented and patented Proplast, the main substance utilized in Vitek's implants. Vitek and the TMJ implants manufactured by it were subject to regulation and control by the FDA. Vitek was required to obtain the FDA's consent before selling medical devices for a particular use, to warn customers, and to obtain FDA authorization for any warnings that were required. Prior to marketing the TMJ implants, Vitek submitted an application to the FDA for approval of the sale of such devices. In March 1983 Prior to trial Du Pont moved for summary judgment. In support of its motion, Du Pont argued that it did not owe Plaintiffs a duty under any of the theories alleged in the first amended complaint. Du Pont asserted that it was only a bulk supplier of the Teflon utilized in the manufacture of Proplast, that the manufacture and sale of the TMJ implants made by Vitek were regulated and approved by the FDA, and that Du Pont as a supplier of bulk raw materials had no duty to warn Plaintiffs or other consumers of products containing Teflon of any potential problems with the medical application of the finished product. Du Pont also contended that although it did in fact provide Vitek with specific disclaimers and warnings concerning the use of Teflon for medical purposes, it had no duty to warn Plaintiffs in the instant case because, among other things, Vitek substantially modified and changed the substance of the raw materials after the substances left Du Pont's control, and that Vitek was a sophisticated user who possessed knowledge of the risks associated with such product. Finally, Du Pont asserted that the duty to warn users of the TMJ implants of any problems rested with Vitek.

[121 N.M. 124] the FDA granted Vitek an exemption from further testing and authorized the sale of Vitek's TMJ implants. Based on information provided by Vitek to the FDA, the FDA recommended that Proplast be classified as a general and plastic surgery device and noted that the safety and effectiveness of the material had been established through clinical trials.

Following a hearing on Du Pont's motion for summary judgment the district court granted the motion.

STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." SCRA 1986, 1-056(C) (Repl.1992). A fact is material for the purpose of determining whether a motion for summary judgment is meritorious if it will affect the outcome of the case. Graven v. Vail Assocs., Inc., 888 P.2d 310, 312 (Colo.Ct.App.1994), cert. granted (Jan. 30, 1995).

It is a familiar precept that a party moving for summary judgment must make a prima facie showing that there are no genuine issues of material fact. Marquez v. Gomez, 116 N.M. 626, 630, 866 P.2d 354, 358 (Ct.App.1991), cert. quashed, 116 N.M. 801, 867 P.2d 1183 (1993). A prima facie showing contemplates that the movant will show an absence of a genuine issue of fact, or that the movant is entitled to summary judgment as a matter of law. Goodman v. Brock, 83 N.M. 789, 792, 498 P.2d 676, 679 (1972). The movant need not demonstrate beyond all possibility that no genuine factual issue exists. Koenig v. Perez, 104 N.M. 664, 666, 726 P.2d 341, 343 (1986). Once a prima facie showing is made, the burden then shifts to the nonmoving party to prove the existence of one or more genuine factual issues. Id. On appeal, the reviewing court scrutinizes the entire record in the light most favorable to the nonmovant and takes note of any evidence therein which puts a material fact in issue. DeLisle v. Avallone, 117 N.M. 602, 607, 874 P.2d 1266, 1271 (Ct.App.), cert. denied, 117 N.M. 773, 877 P.2d 579 (1994).

EXISTENCE OF DUTY

Claim of Strict Liability

We first examine Plaintiffs' claim that Du Pont, as the manufacturer and supplier of PTFE and FEP, was strictly liable to them as a supplier of a dangerous product and that Du Pont breached a duty owed to them to warn about the potential danger incident to the use of Vitek's TMJ implants. New Mexico follows Restatement (Second) of Torts Section 402A (1965), ¹ and applies the rule of In support of its contention that the PTFE and FEP supplied by Du Pont was unreasonably dangerous, Plaintiffs rely, in part, upon SCRA 1986, 13-1402 and -1423 (Repl.1991). SCRA 13-1402 states:

[121 N.M. 125] strict liability upon a manufacturer or seller of unreasonably dangerous products where the dangerous condition of the product is shown to exist when it left the manufacturer's or seller's control. SCRA 1986, 13-1406 to -1408; 13-1423 (Repl.1991); Stang v. Hertz Corp., 83 N.M. 730, 735, 497 P.2d 732, 737 (1972); First Nat'l Bank v. Nor-Am Agric. Prods., Inc., 88 N.M. 74, 85, 537 P.2d 682, 693 (Ct.App.), cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975); see also Trujillo v. Berry, 106 N.M. 86, 88, 738 P.2d 1331, 1333 (Ct.App.), cert. denied, 106 N.M. 24, 738 P.2d 518 (1987); Tenney v. Seven-Up Co., 92 N.M. 158, 159, 584 P.2d 205, 206 (Ct.App.), cert. denied, 92 N.M. 180, 585 P.2d 324 (1978).

The supplier of a product has a duty to use ordinary care to avoid a foreseeable risk of injury caused by a condition of the product or manner in which it is used. This duty is owed [to persons who can reasonably be expected to use the product] [and] [to persons who can reasonably be expected to be in the vicinity during the use of the product.]

[The supplier's duty to use ordinary care continues after the product has left [his] [her] [its] possession. A supplier who later learns, or in the exercise of...