Bingham v. Mentor Corporation ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-20288
_______________________
ALFRED BINGHAM,
Plaintiff-Appellant,
versus
MENTOR CORPORATION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-0025)
_________________________________________________________________
January 5, 1996
Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
Per Curiam1:
Appellant Alfred Bingham (“Bingham”) appeals the district
court’s judgment that all of his claims against Mentor Corp.
(“Mentor”) were preempted as a matter of law by § 360k of the
Medical Device Amendments of the Food, Drug & Cosmetics Act and the
court’s grant of summary judgment to Mentor on that ground.
Because this court has already decided the precise issues raised on
this appeal in Feldt v. Mentor Corp., 61 F.3d 431 (5th Cir. 1995),
we affirm the grant of summary judgment in part, reverse in part,
and remand.
1
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
DISCUSSION
Although Bingham raised several claims against Mentor in
the district court for injuries he allegedly suffered when his
Mentor Mark II inflatable penile prosthesis failed, he asserts on
appeal only claims for design defects, a failure to warn, and for
violations of the Texas Deceptive Trade Practices Act (“DTPA”).
The district court properly granted summary judgment to
Mentor against Bingham’s claims for a failure to warn and for
violations of the DTPA. As this court recently explained in Feldt,
§ 360(k) preempts claims that “are grounded on allegations of
inadequate warnings or labeling. The district court did not err in
finding [such a] failure-to-warn claim [preempted.]” Feldt, 61
F.3d at 436. Likewise, because Bingham’s only DTPA claim
“relate[s] to general marketing or advertising of the device, [it
is] preempted by the FDA’s explicit regulations on labels and
warnings.” Feldt, 61 F.3d at 438.
Although it properly granted summary judgment on
Bingham’s claims for failure to warn and for violations of the
DTPA, the district court erred when it did so for Bingham’s design
defect claim. This court in Feldt refused to hold such claims
preempted because
[a]t the very least, then, the nexus between
the state and federal requirements is much
weaker with respect to design defects than it
is with respect to manufacturing and labeling,
and we find this nexus inadequate to justify
the displacement of state law regarding
defective design.
2
Feldt, 61 F.3d at 438. Consequently, Bingham’s state law claims
against Mentor for defective design of his penile prosthesis are
not preempted by § 360(k) and survive a summary judgment on that
basis. As defense counsel are aware, one panel of this court
cannot overrule a prior, panel decision.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment is AFFIRMED in part, REVERSED in part, and
REMANDED.
3