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Trokamed GMBH v. Vieira

Court of Appeals of Texas, First District

May 31, 2018

TROKAMED GMBH, Appellant
v.
RICHARD VIEIRA AND CHRISTY VIEIRA, INDIVIDUALLY, AND RICHARD VIEIRA, AS REPRESENTATIVE OF THE ESTATE OF JANICE C. VIEIRA, Appellees

          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2016-60164

          Panel consists of Justices Bland, Lloyd, and Caughey.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         In this interlocutory appeal, Trokamed GmbH ("Trokamed") appeals the trial court's order denying its special appearance in the lawsuit brought by Richard Vieira and Christy Vieira, individually, and Richard Vieira, as representative of the estate of Janice C. Vieira ("the Vieiras"). Trokamed contends that the trial court erred in denying its special appearance because it is not subject to personal jurisdiction in Texas. Because the evidence does not support the trial court's exercise of jurisdiction over the nonresident, we reverse.

         Background

         On September 7, 2016, the Vieiras, who are Texas residents, filed suit against Lassiter Medical Systems, Inc. ("Lassiter"), a Texas corporation, Market-Tiers, Inc. d/b/a Blue Endo ("Blue Endo"), a Kansas corporation, and Trokamed, a German corporation, asserting causes of action for negligence and gross negligence, strict products liability, breach of express and implied warranty, and fraudulent misrepresentation and omission. Following the appointment of a special process server, Trokamed was served with the Vieiras' complaint in Germany on December 17, 2017, in accordance with the Hague Convention.

         The Vieiras allege that, on July 19, 2012, Dr. Charles A. Safely performed a total laparoscopic hysterectomy and bilateral salpingo-oophorectomy on Janice Vieira, using a laparoscopic power morcellator ("LPM") to morcellate uterine tissue for extraction. The Vieiras allege that Trokamed designed and manufactured the LPM used in Janice Vieira's surgery, Blue Endo marketed and distributed the device in Texas and throughout the United States, and Lassiter distributed the device in Texas. The Vieiras further allege that Janice Vieira developed metastasis of endometrial adenocarcinoma throughout her body as a result of the use of the LPM, which resulted in her death.

         Trokamed filed a special appearance contesting personal jurisdiction.[1] To its pleading, Trokamed attached the declaration of Karlheinz Trӧndle, General Manager of Trokamed, in which he averred, in pertinent part:

• Trokamed is organized under the laws of the Federal Republic of Germany and is headquartered in Geisingen, Germany. Trokamed's products, including the LPM at issue, are designed, manufactured, and distributed in Geisingen, Germany, and not in the State of Texas. Blue Endo is the exclusive distributor of the LPM in the United States. The LPM is shipped to Blue Endo EXW (ex works) from Trokamed's premises in Germany;[2]
• Trokamed employees involved in the design, manufacture, and distribution of the LPM live in Germany, none of the employees are residents of Texas or regularly visit Texas for business purposes, and English is not their native language;
• Trokamed has never employed any directors, officers, employees, agents, or representatives involved in the sale or marketing of Trokamed's products and/or services in Texas. No director, officer, employee, or agent of Trokamed has ever been assigned to duty in Texas. Neither Trokamed nor any of its directors, officers, employees, or agents have conducted, transacted, or participated in the purchase, sale, distribution, or resale of any goods or services in Texas. Trokamed has never been a member, investor, or partner in any entity that is a resident of Texas or does business in Texas;
• Trokamed has never (i) maintained offices, bank accounts, telephone listings or other assets in Texas; (ii) owned any real or personal property in Texas; paid any taxes in Texas; (iii) had a parent or subsidiary that maintains an office or does business in Texas; or (iv) monitored or controlled the manner in which its products are distributed by third-party distributors;
• Trokamed has never (i) solicited business in Texas; (ii) advertised in Texas; (iii) distributed any literature or materials about its products in Texas; (iv) been licensed to sell any products and/or services of any kind in Texas; (v) sought a qualification to do business in Texas; (vi) entered into any contracts, service agreements, purchase orders, or other agreements for the purpose of directly selling, promoting, advertising, or providing products or services in Texas; (vii) established any channels for providing regular advice to purchasers or users of its products in Texas; (viii) run a website for exclusive use by residents of Texas; or (ix) offered a Texas valid warranty with any product.
• Trokamed has never before been sued in Texas, it does not maintain a registered agent for service of process in Texas, and it has never previously agreed to personal jurisdiction of any court in the United States.

         The Vieiras filed a response to Trokamed's special appearance in which they argued that the facts supported jurisdiction over Trokamed, namely, that Trokamed (1) sought and obtained FDA approval for the LPM; (2) provided an express warranty to Texas customers as set forth in the Instructions for Use ("IFU") accompanying the LPM; and (3) controlled the content and delivery of the warnings in the IFUs. Additionally, the Vieiras asserted that Blue Endo's contacts in Texas were attributable to Trokamed because Blue Endo was Trokamed's agent for purposes of disseminating the IFUs. Blue Endo and Lassiter joined the Vieiras' response. Trokamed filed a reply to the Vieiras' response disputing their allegations.

         On June 12, 2017, following a hearing, the trial court denied Trokamed's special appearance. This interlocutory appeal followed.

         Discussion

         In its sole issue, Trokamed contends that the trial court erred in denying its special appearance because there is no evidence that Trokamed purposefully availed itself of conducting business in Texas sufficient to confer personal jurisdiction.

         A. ...


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