Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CA-96-95-2)
Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Hall wrote the opinion, in which Judge Murnaghan and Senior Judge Butzner joined.
John M. Martin appeals a summary judgment entered for defendant American Medical Systems in Martin's personal injury suit. In light of a recent controlling decision of the Supreme Court, we vacate the judgment and remand.
Martin suffers from erectile dysfunction. He consulted a urologist about his problem, and the urologist recommended that he use an inflatable penile prosthesis. He gave Martin some literature and a videotape about defendant American Medical Systems' prostheses. After reviewing these materials, Martin chose to use defendant's "Dynaflex" product.
On June 2, 1993, the Dynaflex was surgically implanted. Soon thereafter, Martin developed a severe infection. On June 25, his urologist prescribed intravenous antibiotics, but to no avail. Martin then underwent a second surgery to remove the Dynaflex.
The infection raged on, however. He was again treated with intravenous antibiotics in August. From November 29, 1993, through May 13, 1994, he was hospitalized five times for surgery, including debridement of dead tissue, skin grafts, removal of a cyst and an abscess, and subtotal phallic reconstruction. His penis is now disfigured and shortened.
Martin filed this personal injury suit in state court in Chesapeake, Virginia. He alleged several tort and warranty theories against American Medical Systems, the gravamen of all of which was that the defendant failed to ensure that the Dynaflex would be sterile and hence safe for implantation in the human body. The defendant removed the case to district court based on diversity of citizenship.
After limited discovery, American Medical Systems moved for summary judgment. It argued that Martin's claims were preempted by the Medical Device Amendments of 1976, 21 U.S.C.Section(s) 360. The district court held that all claims were preempted except breach of express warranty. On that claim, it held that Martin could not show that he relied on the express "Limited Warranty" American Medical made to his urologist. *fn1 To the extent that Virginia law precluded manufacturers from limiting warranties to those in privity of contract, the district court held that it, too, would be preempted. Summary judgment was entered for the defendant.