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Bond v. E.I. Du Pont De Nemours and Co.6/3/1993
In these consolidated actions to recover for personal injuries, plaintiffs, Krista Bond, Susan K. Baumgartner, Holly D. Nemitz, Kathleen A. Rutland, Paul Sidey, Verna Weatherly, and Ginger Walker Wray, appeal the judgment of dismissal entered under C.R.C.P. 12(b) and C.R.C.P. 56 in favor of defendant E.I. Du Pont De Nemours and Company (DuPont) and defendants Lutheran Medical Center, Mercy Medical Center, Swedish Medical Center, and University of Colorado Health Sciences Center (collectively Hospitals). Plaintiffs contend the trial court erred in ruling that, as a matter of law, the Hospitals were not strictly liable under § 13-21-402(2), C.R.S. (1987 Repl. Vol. 6A) and that DuPont owed no duty to plaintiffs in either theories of strict liability or negligence. We affirm.
Vitek, Inc., (Vitek) designed, manufactured, and sold to hospitals as a prescription-only device a prosthesis known as Proplast Teflon Interpositional Implant (Implant) to correct temporomandibular joint (TMJ) disorders. Each plaintiff had an Implant surgically placed in the jaw by an oral surgeon at one of the Hospitals.
The Implant is composed of layers of various synthetic substances. The top layer is Proplast, a product designed and manufactured by Vitek by combining polytetrafluoroethylene, commonly known as Teflon, with either carbon or aluminum oxide. The bottom layer is pure Teflon. DuPont manufactures and sells Teflon in resin, powder, and fiber form.
Plaintiffs allege that the Implant failed with each plaintiff because the product could not withstand the pressures or the friction in the TMJ. As a result, it disintegrated in the joint, and the separation of particles of Teflon from the Implant caused plaintiffs to suffer tissue damage.
Plaintiffs initially sued only Vitek. However, that action was automatically stayed when Vitek filed for Chapter 7 bankruptcy protection. See 11 U.S.C. § 362 (1988). Plaintiffs then filed lawsuits against the Hospitals and DuPont. Vitek is not a party in this appeal.
I. The Hospitals
Plaintiffs' complaints against the Hospitals are based solely on a strict liability theory. They assert that although the Hospitals are not the actual manufacturers of the Implant, they are strictly liable under § 13-21-402, C.R.S. (1987 Repl. Vol. 6A).
Section 13-21-402(1), C.R.S. (1987 Repl. Vol. 6A) limits the strict liability of a seller in a product liability action to a seller who is also the manufacturer of the product or a part of the product claimed to be defective. Section 13-21-402(2), C.R.S. (1987 Repl. Vol. 6A) provides an exception to this rule:
If jurisdiction cannot be obtained over a particular manufacturer of a product or a part of a product alleged to be defective, then that manufacturer's principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product.
Plaintiffs argue that, because their actions against Vitek as manufacturer of the Implant were automatically stayed, the courts in which those actions were filed no longer have jurisdiction over Vitek. Therefore, they conclude, the Hospitals are statutory manufacturers under § 13-21-402(2) because they were sellers of the Implant. We disagree.
Neither party has addressed, and we do not decide, the impact on jurisdiction of a discharge or other Conclusion of a bankruptcy proceeding. The only issue presented is whether the automatic stay resulting from Vitek merely filing the petition in bankru
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