                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT

                        _______________________

                              No. 95-20288
                        _______________________


                            ALFRED BINGHAM,

                                                    Plaintiff-Appellant,

                                 versus

                          MENTOR CORPORATION,

                                                    Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (CA-H-94-0025)
_________________________________________________________________

                            January 5, 1996

Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

Per Curiam1:

          Appellant Alfred Bingham (“Bingham”) appeals the district

court’s judgment that all of his claims against Mentor Corp.

(“Mentor”) were preempted as a matter of law by § 360k of the

Medical Device Amendments of the Food, Drug & Cosmetics Act and the

court’s grant   of    summary   judgment   to   Mentor   on   that   ground.

Because this court has already decided the precise issues raised on

this appeal in Feldt v. Mentor Corp., 61 F.3d 431 (5th Cir. 1995),

we affirm the grant of summary judgment in part, reverse in part,

and remand.

     1
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
                                DISCUSSION

            Although Bingham raised several claims against Mentor in

the district court for injuries he allegedly suffered when his

Mentor Mark II inflatable penile prosthesis failed, he asserts on

appeal only claims for design defects, a failure to warn, and for

violations of the Texas Deceptive Trade Practices Act (“DTPA”).

            The district court properly granted summary judgment to

Mentor against Bingham’s claims for a failure to warn and for

violations of the DTPA. As this court recently explained in Feldt,

§ 360(k) preempts claims that “are grounded on allegations of

inadequate warnings or labeling. The district court did not err in

finding [such a] failure-to-warn claim [preempted.]”              Feldt, 61

F.3d   at   436.    Likewise,    because     Bingham’s   only    DTPA   claim

“relate[s] to general marketing or advertising of the device, [it

is] preempted by the FDA’s explicit regulations on labels and

warnings.”    Feldt, 61 F.3d at 438.

            Although   it   properly     granted   summary      judgment   on

Bingham’s claims for failure to warn and for violations of the

DTPA, the district court erred when it did so for Bingham’s design

defect claim.      This court in Feldt refused to hold such claims

preempted because

            [a]t the very least, then, the nexus between
            the state and federal requirements is much
            weaker with respect to design defects than it
            is with respect to manufacturing and labeling,
            and we find this nexus inadequate to justify
            the displacement of state law regarding
            defective design.




                                     2
Feldt, 61 F.3d at 438.     Consequently, Bingham’s state law claims

against Mentor for defective design of his penile prosthesis are

not preempted by § 360(k) and survive a summary judgment on that

basis.   As defense counsel are aware, one panel of this court

cannot overrule a prior, panel decision.

                              CONCLUSION

            For the foregoing reasons, the district court’s grant of

summary judgment    is   AFFIRMED   in   part,   REVERSED   in   part,   and

REMANDED.




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