Farsian v. Pfizer, Inc.

                      United States Court of Appeals,

                               Eleventh Circuit.

                                 No. 94-6117.

               Garshasb Hamid FARSIAN, Plaintiff-Respondent,

                                      v.

          PFIZER, INC., Shiley, Inc., Defendants-Petitioners.

                                Oct. 16, 1996.

Appeal from the United States District Court for the Northern
District of Alabama (No. CV 92-G-2646-S); J. Foy Guin, Jr., Judge.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and JOHNSON*,
Senior Circuit Judge.

      PER CURIAM:

      We permitted an interlocutory appeal in this case pursuant to

28 U.S.C. § 1292(b) to review the propriety of the district court's

denial    of    the   defendants'   motion    for   summary   judgment.     We

concluded that the appeal involved a question of Alabama law that

was   determinative      and   unanswered    by   controlling   precedent   in

Alabama. Farsian v. Pfizer, Inc., 52 F.3d 932 (11th Cir.1995).              We

certified the following question to the Supreme Court of Alabama:

           DOES A HEART VALVE IMPLANTEE HAVE A VALID CAUSE OF ACTION
      FOR FRAUD UNDER ALABAMA LAW IF HE ASSERTS THAT THE VALVE'S
      MANUFACTURER FRAUDULENTLY INDUCED HIM TO HAVE THE VALVE
      IMPLANTED WHEN THE DAMAGES THAT HE ASSERTS DO NOT INCLUDE AN
      INJURY-PRODUCING MALFUNCTION OF THE PRODUCT BECAUSE THE VALVE
      HAS BEEN AND IS WORKING PROPERLY?

Id. at 934.       The Supreme Court of Alabama has now answered the

question in the negative. Pfizer, Inc. v. Farsian, No. 1941153, --

- So.2d ---- (Ala. Aug. 30, 1996).           The judgment of the district


      *
      Judge Johnson was a member of the panel that heard oral
argument in this case, but did not participate in this decision.
This decision is rendered by quorum. 28 U.S.C. § 46(d).
court is therefore REVERSED and this action is DISMISSED for

failure to state a claim.

     REVERSED and RENDERED.