Smith v. American Medical Systems, Inc. (897 F.2d 794, 1990)

FRANK J. POLOZOLA, District Judge:

In our original opinion, we certified the following question to the Texas Supreme Court:

Under Texas law, is a seller of a product entitled to indemnification from the manufacturer for attorney’s fees incurred by seller during the litigation where the manufacturer settles the case with the plaintiff before a judicial determination of the liability of the parties is made?

In response to our certification, the Texas Supreme Court has ruled as follows:

In this cause, there has been no judicial finding that American Medical Systems was negligent or that the prosthesis was unreasonably dangerous. In other words, there has been no judicial determination — or admission — that American Medical Systems was, or could have been legally liable to Smith in any way. Unless and until there is such a determination, Humana Hospital’s claim for indemnity is premature.

For the reasons stated previously, our answer to the certified question is “no”.

Therefore, the opinion of the district court is AFFIRMED.

. Smith v. American Medical Systems, Inc., 876 F.2d 434 (5th Cir.1989).

. Humana Hospital Corp. v. American Medical Systems, Inc., 785 S.W.2d 144 (Texas 1990).

. Id. at 145.