HCA HEALTH SERVICES OF TEXAS, INC. D/B/A RIO GRANDE REGIONAL HOSPITAL v. DANEK MEDICAL, INC.--Appeal from 332nd District Court of Hidalgo County

   NUMBER 13-03-556-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

HCA HEALTH SERVICES OF TEXAS, INC. D/B/A

RIO GRANDE REGIONAL HOSPITAL, Appellant,

v.

DANEK MEDICAL, INC., Appellee.

 On appeal from the 332nd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, HCA Health Services of Texas, Inc., d\b\a HCA Rio Grande Regional Hospital, and appellee, Danek Medical, Inc., filed cross motions for summary judgment on the issue of whether appellant is entitled to indemnification. The trial court granted appellee=s motion and denied that of appellant. Appellant now contests the trial court=s disposition of those motions. We affirm the judgment of the trial court.

I. Facts and Procedural History

The case below began in 1993, when Noe Mendoza underwent spinal fusion surgery at HCA Rio Grande Regional Hospital. The surgeon, Jorge Tijmes, M.D., implanted an internal fixation device to stabilize Mendoza=s spine during the healing process. In 1994, Mendoza and his wife sued the hospital, Dr. Tijmes, and the Acromed Corporation under former Texas Revised Civil Statute article 4590i, which governed health care liability claims at the time. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (as amended) (Aformer Tex. Rev. Civ. Stat. art. 4590i@), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. Code '' 74.001 et seq. (Vernon 2005)). The Mendozas alleged the defendants were negligent in using or allowing the use of Steffe screws in an unapproved manner, resulting in injury. The Mendozas included Acromed in the suit because they erroneously believed that Acromed manufactured the screws used by Dr. Tijmes and that Acromed Aknew or should have known that said Steffe screws should not have been used and were not approved for use in the manner used on [Mendoza].@

After the original petition was filed, the parties determined the screws used on Mendoza were pedicle screws manufactured by Danek Medical and not by Acromed. The Mendozas dropped their suit against Acromed and filed an amended petition on November 19, 1997, accusing the hospital and Dr. Tijmes of negligence for using the Danek plate and screw system in an unapproved manner. The Mendozas filed a separate suit against Danek in federal court, the pleadings of which are not found in this record.

The hospital and Dr. Tijmes then filed a third-party petition against Danek, alleging that Danek may be liable for all or part of the plaintiffs= cause of action because Mendoza had alleged his injuries were caused in part by Danek=s acts, omissions, and defective product. The Mendozas=petition against the hospital and Dr. Tijmes claimed negligence under article 4590i. See former Tex. Rev. Civ. Stat. art. 4590i. The petition did not allege product liability. The hospital and Dr. Tijmes, however, argued that the Mendozas had initially sued Acromed, the company they thought had manufactured the screws, and had thereby judicially admitted that the alleged injuries and damages were caused at least in part by the manufacturer. In their third-party petition, the hospital and Dr. Tijmes alleged that if they were to suffer a judgment resulting from the Mendozas= claims, they were entitled to contribution from Danek.

On February 10, 1998, the Mendozas filed their second amended original petition, again naming only the hospital and Dr. Tijmes as defendants, again bringing the claim under article 4590i, and again alleging only improper use of the screws.

The Mendozas settled their federal claim with Danek and requested the court dismiss their claims against Danek, Dr. Tijmes, and the hospital. The court signed that order on November 2, 2001.

On January 2, 2003, the hospital filed a motion for summary judgment on its third-party petition arguing it was entitled to indemnity from Danek as a matter of law under section 82.002(a) of the Texas Civil Practice and Remedies Code . See Tex. Civ. Prac. & Rem. Code Ann. ' 82.002(a) (Vernon 1997). The hospital argued that (1) it met the definition of a seller, (2) the underlying lawsuit constituted a products liability action, and (3) Danek was required under section 82.002(a) to indemnify the hospital against losses incurred by the Mendozas= suit. Danek denied these claims and cross-filed its own motion for summary judgment, claiming the hospital was not entitled to any indemnity from Danek. On July 22, 2003, the court granted Danek=s motion and denied the hospital=s motion.

II. Standard of Review

In situations where both parties move for summary judgment and the trial court grants one while denying the other, we review both sides= summary judgment evidence and determine all the questions presented, rendering the judgment that the trial could should have rendered. Comm=rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).

As a defendant, Danek "was entitled to summary judgment only if it conclusively negated at least one element of [plaintiff's] cause of action or conclusively established all of the elements of an affirmative defense." Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).

Both motions for summary judgment on this case turn on whether the hospital is entitled to indemnity under section 82.002(a). We must reverse the summary judgment in Danek=s favor if Danek did not conclusively negate either one of the hospital=s claims that (1) it is a seller under section 82.002(a), or (2) the underlying lawsuit was a products liability action as contemplated by section 82.002(a). See id.

III. Section 82.002(a)

Because we find it dispositive, we first address whether the underlying lawsuit was a product liability action. AA manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.@ Tex. Civ. Prac. & Rem. Code Ann. ' 82.002(a). A products liability action is Aany action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.@ Id. ' 82.001(2) (Vernon 1997).

Based on the definition above, an essential element for any claim based on section 82.002(a) is an allegedly defective product. Id. ' 82.002(a). Nowhere in the Mendozas= pleadings in this suit did they allege that the pedicle screws were a defective product, nor claim that Danek breached a duty by failing to warn the physician of the dangers of misuse. Mendoza=s original petition claimed only that the manufacturer Aknew or should have known that said Steffe screws should not have been used and were not approved for use in the manner used on [plaintiff],@ and its amended petition did not name the manufacturer as a party. In other words, the Mendozas= only allegation in the underlying suit was that the screws were improperly used, leading to injury. Manufacturers face liability only for products which are defective when used in the intended manner or when used in a reasonably foreseeable way. See Houston Lighting & Power v. Reynolds, 765 S.W.2d 784, 786 (Tex. 1998); see also id. at 787 (liability is Alimited to uses that are objectively reasonable to expect . . . it does not encompass uses . . . which represent wholly unexpected product misuse.@) (citations omitted).

Although not discussed in the briefs of the parties, this Court is well aware of the large volume of litigation starting in the late 1990s arising from claims of defective pedicle screws manufactured by Danek and others. See, e.g., Buckman Co. v. Plaintiff's Legal Comm., 531 U.S. 341, 343-44 (2001); Balderston v. Medtronic Sofamor Danek, 285 F.3d 238, 239 (3rd Cir. 2002); In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 359 (3d Cir. 2001); Theriot v. Danek Med., Inc., 168 F.3d 253, 255 (5th Cir. 1999). However, we find nothing in the Mendozas= original petition, or amended original petitions, that ever alleged the pedicle screws were themselves defective. Instead, they allege only misuse. The hospital claims that a plain language argument defeats Danek=s assertions. It observes that the Mendozas= negligence suit against the hospital Adoes not change the fact that the Mendoza Plaintiffs asserted an action against the Hospital for damages allegedly caused by a defective product.@ Again, the hospital cites no petition alleging defective products in the underlying suit. The only citation to the record given by the hospital that even uses the words Aproduct liability@ is in a letter between representative attorneys in regard to the Mendozas= federal suit, which is not the suit underlying this claim and did not include the hospital as a party.

Because the Mendozas= suit against the hospital was not allegedly caused by a defective product, but rather by a product grossly misused, we conclude that the underlying claim in this proceeding was not a product liability claim as defined in section 82.001(2). SeeTex. Civ. Prac. & Rem. Code Ann. ' 82.001(2)

Because Danek demonstrated there was no merit to the hospital=s claim that the underlying suit was a product liability suit, the trial court properly granted Danek=s motion for summary judgment on that issue and denied the hospital=s cross motion.

IV. Conclusion

We affirm the order of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 13th day of October, 2005.