                   UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                   No. 97-50563




KEN FITZGERALD, doing business as
Performance Orthapaedics,
                                                                    Plaintiff-Appellant,

                                      versus

ADVANCED SPINE FIXATIONS SYSTEMS, INC.,
                                                                   Defendant-Appellee.



                    Appeal from the United States District Court
                        for the Western District of Texas
                                  June 11, 1998
Before POLITZ,Chief Judge, SMITH and DUHÉ, Circuit Judges.

PER CURIAM:

      This case involves an important question of state law which the Texas courts

have not as yet resolved. We therefore have determined that our proper course, in

this diversity jurisdiction case in which we are to apply the law of the State of

Texas, is to certify the central question in this matter to the Supreme Court of

Texas.

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     CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS,
PURSUANT TO THE TEXAS CONSTITUTION ART. 5 § 3-C AND TEX. R.
APP. P. 114

TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES
THEREOF:

1.    STYLE OF THE CASE

      The style of the case in which this certificate is made is Kenneth C.

Fitzgerald d/b/a/ Performance Orthopedics, Plaintiff-Appellant v. Advanced Spine

Fixation System, Inc., Defendant Appellee, Case No. 97-50563, in the United

States Court of Appeals for the Fifth Circuit, on appeal from the United States

District Court for the Western District of Texas. This case involves a determinative

question of state law and jurisdiction of the case in federal court is based solely on

diversity of citizenship. After oral argument by the parties, the Fifth Circuit has

decided to certify this question to the Honorable Justices of the Texas Supreme

Court.

2.    STATEMENT OF THE CASE

      The facts of this case are undisputed. Defendant, Advanced Spine Fixation

System manufactured spinal fixation devices that the plaintiff, Performance

Orthopedics, sold in the El Paso, Texas area. Advanced Spine and Performance

Orthopedics, as well as other manufacturers and sellers, were named as defendants

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in a multi-district litigation1 in the United States District Court for the Eastern

District of Pennsylvania. The complaints, known as the “omni” complaints,

included not only claims of strict products liability, negligence, breach of express

warranty, illegal marketing and promotional activities, intentional and negligent

infliction of emotional distress, and failure to warn, but also claims of conspiracy,

concert of action, aiding and abetting, enterprise liability, and fraud on the

marketplace.

      All claims brought against Performance Orthopedics were eventually

dismissed in the multi-district litigation after discovering that Performance

Orthopedics did not sell any of the spinal fixation devices implanted in any plaintiff

who filed suit. Performance Orthopedics subsequently brought this action against

Advanced Spine for indemnification, pursuant to the Products Liability Act of

1993,2 seeking attorney’s fees as well as the expenses and costs required to defend

      1
      In Re: Orthopaedic Bone Screw Products Liability Litigation, MDL
Docket No. 1014.
      2
       Manufacturer’s Duty to Indemnify

          (a) A 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.


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itself in the litigation.

       The district court granted Advanced Spine’s motion for summary judgment,

concluding that: 1) the industry wide conspiracy theories did constitute a “products

liability action” under the Texas Products Liability Act; 2) the underlying

plaintiff’s allegation that Performance Orthopedics engaged in “negligence,

intentional misconduct, or [any] other act or omission...” does not preclude



                                        *****

       (e) The duty to indemnify under this section:

                     (1)    applies without regard to the manner in which the action is
                            concluded; and

                     (2) is in addition to any duty to indemnify established by law,
                         contract or otherwise.
              TEX. CIV. PRAC. & REM. CODE ANN. § 82.002

       Definitions
                                            *****
       (2)“Products liability action” means any 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.
                                            *****
       (3) “Seller” means a person who is engaged in the business of distributing or
       otherwise placing, for any commercial purpose, in the stream of commerce
       for use or consumption of a product or any component part thereof.
       TEX. CIV. PRAC. & REM. CODE ANN. § 82.001.
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Performance Orthopedics’ recovery under the exception to indemnification based

on losses “caused by the seller[]...for which the seller is independently liable”; and

3) the Texas Legislature did not intend to provide indemnity to retailers who did

not sell the “injuring product” to the plaintiffs in the underlying suit. Performance

Orthopedics now appeals the trial court’s decision.

3.    QUESTION CERTIFIED

Whether the Texas Products Liability Act of 1993, Tex. Civ. Pract. & Rem. Code

Ann. § 82.002, requires a manufacturer of an injuring product to indemnify a

retailer that was forced to defend itself in products liability litigation even though

the retailer, who sold products of the same or similar type involved in the suit, did

not sell the particular product claimed to have harmed the underlying plaintiff.

4.    CONCLUSION

      We disclaim any intention or desire that the Supreme Court of Texas confine

its reply to the precise form or scope of the question certified. The answer provided

by the Supreme Court of Texas will determine the issue on appeal in this case. The

record in this case, together with the copies of the parties’ briefs, is transmitted

herewith.




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