United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 04-20777
______________________
KATHY N. BURDEN, ET AL.,
Plaintiffs
versus
JOHNSON & JOHNSON MEDICAL, ET AL.,
Defendants
ANSELL HEALTHCARE PRODUCTS INC, formerly known as Ansell Inc,
formerly known as Ansell Perry Inc.; BECTON DICKINSON & CO;
Defendants - Cross-Defendants - Appellees
versus
OWENS & MINOR MEDICAL INC; OWENS & MINOR INC
Defendants - Cross-Claimants - Appellants
___________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
___________________________________________________
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case involves an important question of state law which
the Texas courts have not as yet resolved. We therefore have
determined that our proper course, in this diversity jurisdiction
case in which we are to apply the law of the State of Texas, is to
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certify the central question in this matter to the Supreme Court of
Texas.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO THE TEXAS
CONSTITUTION ART. 5 § 3-C AND TEX. R. APP. P. 58. TO THE SUPREME
COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:
I. STYLE OF THE CASE
The style of the case in which this certificate is made is
Kathy N. Burden, et al., Plaintiffs v. Johnson & Johnson Medical,
Inc., et al., Defendants, Ansell Healthcare Products, Inc.;
Becton Dickson & Co., Defendants-Cross-Defendants-Appellees,
Owens & Minor Medical Inc.; Owens & Minor, Inc., Defendants-
Cross-Claimants-Appellants, Case No. 04-20777, in the United
States Court of Appeals for the Fifth Circuit, on appeal from the
United States District Court for the Western District of Texas.
Federal jurisdiction is based on diversity of citizenship.
II. STATEMENT OF THE CASE
On January 21, 2000, Kathy Burden, a dental hygienist, and
members of her family filed a products liability action in Texas
state court, naming as defendants the present appellants,
appellees, and over thirty other entities. The Plaintiffs alleged
that Burden was injured by latex gloves manufactured and sold by
the named defendants. Appellants Owens & Minor, Inc. and Owens &
Minor Medical, Inc. (collectively, “Owens & Minor”) were sued as a
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distributor. Appellees Ansell Healthcare Products Inc. (“Ansell”)
and Becton, Dickinson and Company (“BD”) were sued as manufacturers
of the allegedly defective gloves. On March 6, 2000, Owens & Minor
sent letters to several of the defendant manufacturers requesting
that those manufacturers indemnify Owens & Minor pursuant to Texas
Civil Practice and Remedies §82.002, which requires a manufacturer
to “indemnify and hold harmless a seller against loss arising out
of a products liability action” excepting losses proven to have
been caused by the seller. For reasons that are disputed by the
parties, Owens & Minor was ultimately defended by its own outside
counsel.
The case was removed to the United States District Court for
the Southern District of Texas on May 3, 2000. It was subsequently
transferred to the United States District Court for the Eastern
District of Pennsylvania as part of the multidistrict litigation,
In re: Latex Glove Products Liability Litigation. At some point
during the proceedings, Owens & Minor filed cross-claims for
indemnity against several manufacturers in the case. Eventually,
the Plaintiffs voluntarily dismissed their claims against Owens &
Minor because they were unable to show that Owens & Minor had sold
any of the latex gloves that allegedly injured Burden. All other
defendants were dismissed for the same or similar reasons. There
was never a finding that any party was negligent or caused the
Plaintiffs’ alleged injuries. However, when the instant case was
remanded to the Southern District of Texas once the multidistrict
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litigation proceedings were complete, Owens & Minor pursued the
cross-claims for indemnity that it had brought against four of the
manufacturers, seeking to recover the costs it had incurred in
Burden. Owens & Minor subsequently settled with two of the
manufacturers, leaving claims for indemnity against only Ansell and
BD.
In response to Owens & Minor’s cross-claim, BD and Ansell both
moved for summary judgment on the adequacy of their offers to
indemnify Owens & Minor. BD argued that it properly had offered to
defend and indemnify Owens & Minor for claims arising out of the
sale of BD latex gloves. Likewise, Ansell maintained that it
appropriately had offered to defend and indemnify Owens & Minor for
claims related to Owens & Minor’s alleged sale of Ansell latex
gloves. Owens & Minor claimed that the offers made by Ansell and
BD were for a “partial limited defense” with conditions, rather
than the sort of full defense and indemnity allegedly required by
§82.002. The District Court rejected many of the arguments
presented by the manufacturers, yet ultimately granted BD’s and
Ansell’s motions for summary judgment, holding that both
manufacturers had offered to defend and indemnify Owens & Minor to
the satisfaction of their duties to Owens & Minor under §82.002.
In so doing, the District Court terminated the entire case.
Owens & Minor brings this appeal, arguing that the District
Court erroneously granted summary judgement in favor of Ansell and
BD. According to Owens & Minor, the District Court improperly
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concluded that a limited defense was all that was required under
§82.002, and that by defending themselves, the manufacturers had
adequately defended Owens & Minor. Owens & Minor requests that a
question on this issue be certified to the Texas Supreme Court.
Owens & Minor also argues that the District Court erred in
construing in favor of Ansell and BD allegedly disputed facts
regarding the letters exchanged between the parties. Ansell and BD
respond that Owens & Minor has misinterpreted the District Court’s
ruling. According to Ansell and BD, the District Court correctly
held that Ansell and BD fulfilled their indemnification obligation
because §82.002 only requires a manufacturer to indemnify a
distributor for claims related to the sale of that manufacturer’s
product. Further, Ansell and BD claim that the District Court did
not impermissibly grant summary judgment based upon disputed facts,
but rather correctly drew conclusions of law based upon the
undisputed facts presented in the letters. The parties have
stipulated that Owens & Minor is an innocent seller and that BD and
Ansell are manufacturers of the latex gloves at issue in this
appeal.
The Texas Supreme Court’s leading case interpreting §82.002 is
Fitzgerald v. Advanced Spine Fixation Systems, Inc, 996 S.W.2d 864
(Tex. 1999). In that case, the Texas Supreme Court answered the
following question certified to it by this Court: whether §82.002
requires a manufacturer to indemnify a distributor who was sued but
who did not actually sell the particular product alleged to have
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injured the plaintiff. In answering that question in the
affirmative, the Texas Supreme Court analyzed a manufacturer’s duty
under §82.002. The Court explained that §82.002 “is part of a
scheme to protect manufacturers as well as sellers of products.”
Id. at 868. The statute accomplishes this goal by “ensuring that
the relatively small seller need not fear litigation involving
problems that are really not in its control,” and by
“establish[ing] uniform rules of liability so that manufacturers
[can] make informed business decisions and plaintiffs [can]
understand their rights.” Id. at 868-69. The Court concluded that,
though §82.002's purpose is to benefit both manufacturers and
sellers, the legislature “gave preference to sellers with no
independent liability.” Id. at 869.
While the Texas Supreme Court in Fitzgerald gave considerable
guidance concerning how a court should approach questions regarding
§82.002 by looking to the consequences of certain interpretations
of §82.002 and ensuring that those interpretations are consistent
with the plain language of the statute and the legislative intent,
the issue presented in the instant case is beyond Fitzgerald. In
the case before us, neither the plain language of the statute nor
the legislative intent indicate the scope of the indemnification
and defense required by §82.002 in a situation in which it is
undisputed that the seller sold products made by the several
manufacturers sued, yet the seller has sought indemnification
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from less than all of those manufacturers. We note that the Texas
Court of Appeals has answered this question in Ansell Healthcare
Products, Inc. v. Owens & Minor, Inc., — S.W.3d —, 2006 WL 824236
(Tex.App.-Texarkana March 31, 2006), concluding that the
manufacturers’ limited offers to defend only their own products did
not fulfill their statutory indemnity duties under §82.002. While
Ansell Healthcare Products, is a well-written, sound opinion, we
cannot rely upon it because it is an unpublished, non-precedential
ruling. Furthermore, we believe that the central issue in this
case is better answered by the Texas Supreme Court. An answer to
this central issue is necessary for this Court to proceed in
resolving the remaining issues in this case regarding whether the
district court improperly resolved disputed factual issues in favor
of the moving parties.
III. QUESTION CERTIFIED
When a distributor sued in a products liability action
seeks indemnification from less than all of the manufacturers
implicated in the case, does a manufacturer fulfill its
obligation under Texas Civil Practice and Remedies §82.002 by
offering indemnification and defense for only the portion of the
distributor’s defense concerning the sale or alleged sale of that
specific manufacturer’s product, or must the manufacturer
indemnify and defend the distributor against all claims and then
seek contribution from the remaining manufacturers. We disclaim
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any intention or desire that the Supreme Court of Texas confine
its reply to the precise form or scope of the question certified.
The answer provided by the Supreme Court of Texas will determine
the issue on appeal in this case. The record in this case,
together with the copies of the parties’ briefs, is transmitted
herewith.
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