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HCA Health Services of Texas10/13/2005
ility is "limited 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 "does 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 "product 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.ยง82.001(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.
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