410 S.W.3d 427
Tex. App.2013Background
- Plaintiff Gary Seifried, a physical-therapy patient with multiple sclerosis, was injured when a Thera-band resistance band snapped and struck his eye during a supervised exercise at Memorial Hermann Katy Rehabilitation Hospital.
- Hygenic manufactured Thera-band bands and supplied them to the hospital as bulk rolls; hospital therapists cut lengths for individual patients.
- Each bulk roll included a warning insert cautioning against pulling the band toward the head and recommending use only under direction of trained healthcare professionals; a product manual advising eye protection was also available.
- The treating therapist, Brenda Cossey, was trained in Thera-band use, had read the insert and manual, demonstrated the exercise, supervised Seifried, and had helped design his therapy regimen.
- Seifried sued Hygenic for negligent failure to warn; the trial court granted Hygenic summary judgment. Hygenic argued it warned the intermediary (the hospital/therapist) and thus owed no duty to warn the ultimate user.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Duty to warn: whether Hygenic owed a direct duty to Seifried | Seifried: Hygenic failed to warn the ultimate user and could have placed a warning on the band itself | Hygenic: It was a bulk supplier who warned the intermediary (hospital/therapist) and reasonably relied on that intermediary to warn patients | Court: No duty to the ultimate user because Hygenic reasonably warned the learned intermediary | |
| Applicability of learned intermediary / bulk-supplier doctrine | Seifried: Doctrine should not apply; feasibility of warning on band shows Hygenic could warn users directly | Hygenic: Therapists are trained intermediaries analogous to prescribing doctors; bulk-supplier facts support reliance on intermediary | Court: Physical therapists/hospital satisfied intermediary factors; doctrine applies | |
| Adequacy of the warning provided to intermediary | Seifried: Warning on insert/manual may not have been adequate for the precise misuse | Seifried also argued a band label was feasible | Hygenic: Insert/manual specifically warned against pulling band toward the head and advised eye protection | Court: Warning specifically described the exact risk (snapping toward head/eye injury); adequate as a matter of law |
| Procedural: failure to plead learned intermediary as an affirmative defense | Seifried: Hygenic raised the doctrine only in amended pleadings after filing MSJ, so defense was untimely | Hygenic: Learned-intermediary is not an affirmative defense but informs duty analysis; it was timely raised in the MSJ | Court: Doctrine is not an affirmative defense; Hygenic timely asserted it in the motion for summary judgment |
Key Cases Cited
- Alm v. Aluminum Co. of Am., 717 S.W.2d 588 (Tex. 1986) (manufacturer's duty to warn and reliance on intermediaries)
- Firestone Steel Prods. v. Barajas, 927 S.W.2d 608 (Tex. 1996) (existence of duty is a question of law)
- Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012) (learned-intermediary doctrine and manufacturers' duty to warn through prescribing physicians)
- Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004) (bulk-supplier reliance on intermediary to pass warnings)
- Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607 (Tex. App.—Waco 1993) (warning that specifically describes the complained-of circumstance is adequate as a matter of law)
- Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (summary-judgment standards for defendants asserting affirmative defenses)