REVISED - August 5, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50563
KEN FITZGERALD, doing business
as Performance Orthopaedics,
Plaintiff-Appellant,
versus
ADVANCED SPINE FIXATION SYSTEMS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
July 21, 1999
Before POLITZ, SMITH, and DUHÉ, Circuit Judges.
POLITZ, Circuit Judge:
The undisputed facts of this case are relatively straightforward. Ken
Fitzgerald, doing business as Performance Orthopedics, was dismissed from a
products liability suit because, although Fitzgerald sold some of the allegedly
defective spinal fixation devices, he did not sell the devices which were implanted
in the plaintiffs. Fitzgerald subsequently sought indemnification from the
manufacturer of the allegedly defective products, Advanced Spine Fixation
Systems, for the attorneys’ fees and costs incurred defending the action. The
district court denied Fitzgerald’s motion for summary judgment and granted
Advanced Spine’s adverse motion, finding that the Texas Products Liability Act of
1
1993, Tex. Civ. Pract. & Rem. Code Ann. § 82.002, did not provide for
manufacturer indemnity to retailers that did not sell the “injuring product” to the
plaintiffs.
On appeal we noted that this was an unresolved issue of state law and
certified the following question to the Supreme Court of Texas:
Whether the Texas Products Liability Act of 1993, Tex. Civ.
Pract. & Rem. Code Ann. § 82.002, requires a manufacturer of an
injuring product to indemnify a retailer that was forced to defend itself
in products liability litigation even though the retailer, who sold
products of the same or similar type involved in the suit, did not sell
the particular product claimed to have harmed the underlying
plaintiff.1
The Supreme Court of Texas accepted certification and, in a majority opinion,
answered the question in the affirmative.2 Accordingly, in this diversity
jurisdiction action, being informed by the Supreme Court of Texas that the Texas
Products Liability Act of 1993 allows Fitzgerald to seek indemnity from Advanced
Spine for attorneys’ fees and costs, we VACATE the judgment of the district court
and REMAND for further proceedings consistent herewith.
1
Fitzgerald v. Advanced Spine Fixations Sys., Inc., 143 F.3d 935, 936 (5th Cir.
1998).
2
Fitzgerald v. Advanced Spine Fixation Sys., Inc., No. 98-0560, 1999 WL
450861, at * 1 (Tex. July 1, 1999).
2