Opinion issued August 6, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                           ————————————
                            NO. 01-12-01093-CV
                          ———————————
                        GARY SEIFRIED, Appellant
                                     V.
                THE HYGENIC CORPORATION, Appellee


                  On Appeal from the 334th District Court
                          Harris County, Texas
                    Trial Court Case No. 2011-23295A


                                OPINION

      During a physical therapy session, a Thera-band resistance band snapped

and injured Gary Seifried. Seifried sued The Hygenic Corporation, which

manufactured the band, claiming that a marketing defect caused his injury. The

trial court granted summary judgment in favor of Hygenic. On appeal, Seifried
contends that the trial court erred in doing so, because (1) he produced evidence

that Hygenic failed to warn him about potential hazards of using the band; (2) a

better method of distributing an adequate warning to the ultimate user existed—

printing the warning on the band itself; and (3) Hygenic failed to timely raise its

learned intermediary or bulk-supplier defenses. Hygenic responds that, as a matter

of law, it had no duty to warn Seifried, because it is a bulk manufacturer that

distributed its products to a learned intermediary, to which Hygenic provided an

adequate warning. We conclude that Hygenic established that it provided notice of

the hazard to a learned intermediary and thus had no duty to warn Seifried. We

therefore affirm.

                                  Background

      Seifried was undergoing treatment for multiple sclerosis at Memorial

Hermann Katy Rehabilitation Hospital (the “Hospital”) and was confined to a

wheelchair. His doctor prescribed physical therapy to improve his strength, which

Seifried undertook while he was a patient at the Hospital. Brenda Cossey, a

physical therapist at the Hospital, along with her supervisor, developed a physical

therapy regimen tailored to Sefried’s particular needs. As part of this physical

therapy program, Seifried used a Thera-band elastic resistance band to increase his

upper-body strength. Cossey tied the band to a bar directly in front of Seifried at

his waist level, demonstrated the exercise, and directed Seifried to pull the band


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toward him in a curling motion. When Seifried stretched the band, pulling it

toward his head and shoulders, it snapped. The band recoiled and hit him in the

eye. Seifried suffered a severe eye injury. The Hospital disposed of the broken

resistance band shortly thereafter; it was never inspected by the parties post-

accident.

      Hygenic manufactured the Thera-band resistance band and distributed it to

the Hospital in a large, bulk roll. The therapists at the Hospital or their supervisors

would cut off lengths of the roll to suit a particular patient, like Seifried, and the

exercise in which he was engaged.

      Each roll is packaged with a product warning insert. This insert contained

several warnings, including a warning against pulling the Thera-band toward the

user’s head. Specifically, the insert warned: “Do not use the resistance bands in

any manner that may cause them to snap towards the head and cause injury to

eyes.” It further provided that the resistance bands should be used “only upon the

recommendation, and under the direction of, a trained, licensed healthcare

professional.” Cossey had read the warning insert, including the specific warnings

against drawing the band toward a person’s head or face, prior to Seifried’s injury.

A product manual was also available at the Hospital. The manual included further

warnings regarding the particular curl exercise in which Seifried was engaged

when he was injured: “User must wear suitable eye protection such as safety


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goggles during this exercise to protect against possibility of eye injury as a result

of the band or tube snapping toward the face if grip is lost or if the band or tube

breaks.” Cossey also had read these warnings.

      Cossey is trained and certified as an occupational therapist. She had training

specifically in the use of the Thera-band Seifried used. She testified that resistance

bands were readily available at the Hospital, and that she had used them on many

occasions. Cossey inspected the resistance band and demonstrated the exercise to

Seifried before he began to use it. She supervised Seifried as he performed the

exercise.

      Seifried asserted a cause of action against Hygenic for negligent failure to

warn. Hygenic moved for summary judgment, maintaining that it owed no duty to

Seifried because Hygenic distributed the bands to an intermediary to whom it had

provided an adequate warning about the potential injury to a user’s eye if the user

drew the resistance band toward the face, as occurred here.

                                     Discussion

Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant

must establish that no genuine issue of material fact exists and the movant is thus


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entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When reviewing a

summary judgment, we take as true all evidence favorable to the nonmovant and

indulge every reasonable inference in the nonmovant’s favor. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

      Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the

specific grounds relied upon for summary judgment. Id. A genuine issue of

material fact exists if the non-movant produces more than a scintilla of probative

evidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). A defendant moving for traditional summary

judgment must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an affirmative

defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

       When, as here, “a trial court’s order granting summary judgment does not

specify the grounds relied upon, [we] affirm the summary judgment if any of the

summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). If the appellant fails to negate every

possible ground upon which the judgment may have been granted, an appellate


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court must uphold the summary judgment. See Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68

S.W.3d 894, 898 (Tex.App.—Houston [1st Dist.] 2002, no pet.).

Learned Intermediary and Bulk-Supplier Doctrines

      A prerequisite to tort liability is the existence of a legally cognizable duty.

Firestone Steel Prods. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996). Whether a

legal duty exists is a question of law. Id.; Munoz v. Gulf Oil Co., 732 S.W.2d 62,

65 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.); see, e.g., Alm v.

Aluminum Co. of Am., 717 S.W.2d 588, 595 (Tex. 1986) (holding that existence of

duty to warn is question of law).

      A manufacturer generally has a duty to inform users of potential harm

associated with the use of its product. Alm, 717 S.W.2d at 591. In a negligent

failure to warn case, a manufacturer has a duty to warn if a reasonably prudent

person in the manufacturer’s position would warn of hazards associated with the

use of its product. Id.; Munoz, 732 S.W.2d at 65.

      A manufacturer or supplier may, in certain situations, depend on an

intermediary to communicate a warning to the ultimate user of a product. Alm, 717

S.W.2d at 591; Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 914 (Tex.

App.—Houston [1st Dist.] 1988, writ denied). The presence of an intermediary,

however, does not excuse the manufacturer from warning those whom it should


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reasonably expect to be endangered by the use of its product. Alm, 717 S.W.2d at

591; Firestone, 745 S.W.2d at 914. Rather, the manufacturer must have a

reasonable assurance that its warning will reach those endangered by the use of its

product. Alm, 717 S.W.2d at 591; Firestone, 745 S.W.2d at 914.

      For example, when a drug manufacturer properly warns a prescribing doctor

of the dangers of its product, the manufacturer is excused from warning each

patient who receives the drug. Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 157–

58 (Tex. 2012); Alm, 717 S.W.2d at 591. The prescribing doctor stands as a learned

intermediary between the manufacturer and the consumer—the doctor is entrusted

with passing relevant warnings regarding the use of the drug. Centocor, Inc., 372

S.W.3d at 156. The drug manufacturer can reasonably rely on the doctor to pass

along the warning, because doctors are trained and experienced in treating and

caring for patients, familiar with the properties of the drugs, and supervise and

monitor the administration of the drug. Id. In such a situation, it is reasonable for a

manufacturer to rely on an intermediary to pass on its warnings. Id.

      The same concept applies if a bulk supplier sells a product to another

manufacturer or distributor who, in turn, packages and sells the product to the

public. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 185–86 (Tex.

2004); Alm, 717 S.W.2d at 592; Munoz, 732 S.W.2d at 66. If the bulk supplier may

reasonably rely on the intermediary to pass along the warning, it need warn only its


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intermediate distributor and not each individual consumer. Humble Sand & Gravel,

Inc., 146 S.W.3d at 185–86; Glenn v. Kinco Crane, Inc., 836 S.W.2d 646, 649

(Tex. App.—Houston [1st Dist.] 1992, no writ). In determining whether a bulk

supplier may reasonably rely on an intermediary to pass on the warning, courts

may consider whether the intermediary is (1) adequately trained, (2) familiar with

the properties of the product and its safe use, and (3) capable of passing on its

knowledge to consumers. Alm, 717 S.W.2d at 592.

      Here, aspects of both situations exist. Like doctors in the prescription drug

situation, physical therapists are experienced in treating and caring for patients, are

trained in and familiar with the use of resistance bands used for physical therapy,

and supervise and monitor the patients as they use the bands. See Centocor, Inc.,

372 S.W.3d at 156–59. The therapists directly interact with the patient and provide

direction and a personalized exercise regimen tailored to the particular needs of the

patient. Therefore, like a doctor prescribing drugs, a physical therapist designing

and supervising a physical therapy regimen can pass on applicable warnings to the

patient, based on the patient’s physical condition and particular needs. See id.

      Hygenic is also like the bulk-supplier that provides its product to a

distributor, which then packages the product for sale to the public. See Humble

Sand & Gravel, Inc., 146 S.W.3d at 185–86; Alm, 717 S.W.2d at 592; Munoz, 732

S.W.2d at 66. Hygenic supplied bulk rolls of Thera-band resistance bands to the


                                          8
Hospital. At the Hospital, the physical therapists processed the roll by cutting off a

portion at a length suitable for Seifried’s body size and particular exercise regimen.

The Hospital, through Cossey, then provided this length of resistance band to

Seifried, the ultimate user, to use with Cossey’s instruction and under her

supervision. See Humble Sand & Gravel, Inc., 146 S.W.3d at 186; Alm, 717

S.W.2d at 592.

      It was reasonable for Hygenic to rely on the Hospital and its physical

therapists to pass on to its patients any warnings applicable to a particular exercise.

Alm, 717 S.W.2d at 592. The physical therapist here, Cossey, was a trained,

certified, health care professional, with training specific to the use of a resistance

band. See id. She had used Thera-band resistance bands on multiple occasions, and

she had read both the warnings on the insert and the product manual’s instructions

regarding how to safely use the band. She was familiar with the properties of the

band and its safe use. See id. With her supervisor, Cossey established Seifried’s

physical therapy plan and the exercises Seifried was to conduct with the resistance

band. Cossey instructed Seifried on the use of the resistance band and

demonstrated exercises to Seifried. Cossey was therefore capable of warning

Seifried of the risks associated with the use of the resistance band while directly

supervising its use. See id.




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      Seifried argues that a warning on the resistance band itself was feasible and

could have directly warned the ultimate user. Feasibility, however, is not the

rationale for the learned intermediary doctrine. Centocor, 372 S.W.3d at 157;

Humble Sand & Gravel, Inc., 146 S.W.3d at 191. Instead, the doctrine is based on

the notion that some intermediaries can better convey a warning to increase its

efficacy, depending on an analysis under the factors reviewed above. Humble Sand

& Gravel, Inc., 146 S.W.3d at 190–91; Centocor, 372 S.W.3d at 157. The Hospital

and Cossey directly supervised and monitored Seifried as he engaged in a

personalized physical therapy regimen developed by the Hospital and its

employees. Cossey had experience and training with the resistance bands. The

Hospital was in a better position to warn Seifried about potential harm resulting

from the use of the resistance band in the particular exercises assigned as part of

Seifried’s physical therapy plan.

      Accordingly, we conclude that Hygenic’s duty to warn extended to the

intermediary, the Hospital, and not the ultimate user of the resistance band,

Seifried. We therefore analyze whether the warning to the Hospital was adequate.

See Alm, 717 S.W.2d at 591 (holding that even if duty to warn owed only to

intermediary, warning to intermediary must be adequate).




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Adequacy of the Warning

      Generally, whether a warning is adequate is a question of fact. Alm, 717

S.W.2d at 592. However, if a warning specifically mentions the circumstances

complained of, then the warning is adequate as a matter of law. Rolen v. Burroughs

Wellcome Co., 856 S.W.2d 607, 609 (Tex. App.—Waco 1993, writ denied)

(affirming summary judgment in favor of manufacturer where package insert

warned of precise side effect that plaintiff suffered); see Ackermann v. Wyeth

Pharms., 525 F.3d 203, 208 (5th Cir. 2008); Wyeth-Ayerst Labs. Co. v. Medrano,

28 S.W.3d 87, 95 n.6 (Tex. App.—Texarkana 2000, no pet.).

      A warning insert, cautioning against misuse of the resistance band,

accompanied each Thera-band roll distributed to the Hospital, and a manual

containing additional warnings was available to the Hospital employees. Hygenic

warned against drawing the band toward the user’s head or using the band in any

manner that could cause it to snap toward the user’s head, potentially causing an

injury to the user’s eyes. The product manual states that users should wear eye

protection. Cossey had reviewed both the manual and the warning insert before she

supervised Seifried’s therapy. Seifried pulled the band toward his head and

shoulder area in a curling motion. The band broke and struck him in the face,

causing the injury to his eye. This is precisely the circumstance that Hygenic

warned against—drawing the band toward the user’s head, without eye protection.


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Because Hygenic notified Cossey and the Hospital of the potential injury to the

user if he used the band precisely in the manner described, the warning was

adequate as a matter of law. See Rolen, 856 S.W.2d at 609.

Failure to Plead Affirmative Defenses

      After moving for summary judgment, but before the trial court heard the

motion, Hygenic amended its pleadings to include the learned intermediary

doctrine. Seifried objects that the trial court erred in considering the motion,

because Hygenic did not plead the learned intermediary doctrine as an affirmative

defense before moving for summary judgment on that ground. The learned

intermediary doctrine, however, is not an affirmative defense. Centocor, 372

S.W.3d at 165–66. Rather, it is a consideration to evaluate to whom a defendant

owes the duty to warn. Id. Hygenic timely asserted the doctrine in its motion for

summary judgment and contended that it owed no duty to Seifried; it was not

required to also plead the doctrine separately as an affirmative defense. See id.

                                    Conclusion

      Hygenic adequately warned the Hospital of the risk that a Thera-band band

could snap and cause an eye injury. Because the Hospital qualifies as an

intermediary on whom Hygenic reasonably could have relied to pass the warning

to Seifried, we conclude that Hygenic had no duty to warn Seifried personally;




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thus, the trial court properly granted Hygenic’s motion for summary judgment. We

therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Higley, and Bland.




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