We disagree with appellants' contention that Homsy or Vitek was not a learned intermediary and did not possess the technical knowledge regarding the properties of DuPont's PTFE. Appellants contend that because Homsy was not a biologist, pathologist, and toxicologist, he did not have the technical knowledge or training necessary to be a learned intermediary. This argument ignores the summary judgment evidence regarding the years of testing that Vitek undertook in developing Proplast products and the clinical studies that were done in university hospitals to study its application. It ignores that Vitek employed at least one consultant, Kent, who was an oral surgeon and thus medically trained. It ignores FDA approval of Vitek's products using Proplast. Moreover, it ignores Homsy's qualifications and credentials. DuPont's reliance on Homsy or Vitek was reasonable because they were familiar with the propensities of the product and capable of (and required by law to) pass on warnings. Glenn, 836 S.W.2d at 649.

*14 Appellants point to evidence that DuPont knew in the 1960s of problems with the medical use of Teflon. They assert that, armed with this knowledge, DuPont knew that the TMJ implant would fail. We will address appellants' arguments below.

The HS-10 process

To attribute knowledge to DuPont, appellants cite evidence that the HS-10 process developed by DuPont to create a filled Teflon composite and Vitek's process for making Proplast are similar. There is evidence that the two processes are very similar and that DuPont was aware Homsy was using a similar process to make his Proplast. However, even if the two processes are similar, Vitek decided how to employ the process. It decided what materials to combine with PTFE to make Proplast. It controlled the testing of and studies on Proplast. It developed the use of Proplast in, and the design of, the TMJ implant. DuPont did not participate in Vitek's decision to use its raw material in Proplast and did not design the implant that contained its raw material.

Appellants argue that based on DuPont's test results with the HS-10 process, anyone could have foreseen that Homsy's TMJ implants would fail. The evidence shows that DuPont attempted to use the HS-10 process to make hospital bed sheets, a sports jacket, and a heating tray from a composite or filled PTFE, but the process was not commercially feasible. DuPont did not employ the HS- 10 process to make a composite PTFE for use in medical devices. This evidence does not raise a fact issue that DuPont should have foreseen that another composite PTFE, used in a different design and for another purpose, would fail.

The evidence shows that DuPont did not exercise control or take part in the design or assembly of the final product, i.e., the TMJ implant. Vitek did not discuss the TMJ implant with DuPont. The evidence shows that in 1977 Homsy sent DuPont advertising on earlier applications of Proplast. The advertising was for Proplast sheets and blocks used in surgery and for a TMJ prosthesis made of a metal condyle coated with Proplast for external bone fixation. The advertising did not involve the use of Proplast in the joint or the implant at issue.

Dr. Lontz's testimony

Appellants rely on the testimony of Dr. Lontz, who worked for DuPont from 1947 to 1972, to support their contention that DuPont owed a duty to warn ultimate users. Lontz testified about an article he wrote in 1968. In the article, Lontz wrote that a device that includes Teflon and is subject to loading applications will wear. He testified that he was telling the reader that Teflon, when used in a prosthesis, is subject to wear. Lontz agreed this information would be important to Homsy and agreed that DuPont, if responsible, would want those using Teflon to be aware of it. Appellants argue DuPont had a duty to warn Homsy but never told him of this article written by its employee.

We disagree that this testimony established DuPont's duty to warn. First, Lontz testified that he wrote the article on his own and that DuPont had nothing to do with it. Second, DuPont warned Homsy in its 1967 letter. It told him that (1) Teflon is not made for medical use; (2) it tested the product to protect ordinary users, but did not perform detailed long-term studies that should be made before the product is used in medicine and surgery; and (3) it advised him of medical studies reporting problems with Teflon, specifically that particles abrade and might cause tissue reaction. Homsy wrote back that he knew of the medical reports cited in DuPont's letter and more.

*15 Appellants admit, and Lontz testified, that Lontz did not test the medical application of Teflon; his testing was strictly for industrial purposes. Lontz never discussed with DuPont the idea of using porous Teflon in human implants. He learned the mechanical properties of Teflon during his work at DuPont. He testified that, through his testing, he concluded that Teflon in loaded joints had potential wear problems. We note that Lontz's conclusion was the same as the conclusions reached in other medical reports of which both DuPont and Homsy were aware. Lontz testified that his article contained information regarding every aspect of the failure mode of the TMJ implant. He also testified, however, that the information in his 1968 article could not predict the precise failure mode that the TMJ implant experienced, and that proper design of any prosthesis made with Teflon was what was important. He reiterated that he did not write this article in the course and scope of his employment with DuPont. Lontz testified that, if he had known Homsy was using Teflon in a TMJ implant, he would not conclude, based on his knowledge, that it was a bad idea.

Silence and disassociation

Appellants argue that DuPont's policy of "silence and disassociation" is evidence that it owed or breached a duty. The "silence and disassociation" policy was stated in a 1971 DuPont memorandum discussing a possible television commercial on the use of Teflon in vocal chord repair. The memorandum's author states:

The desire for more technical information from DuPont was raised by Dr. Homsy. He said he understood, but did not agree with, DuPont's concern over the liability implications of use of DuPont products as implant devices or drugs when they were not so intended by DuPont. This point is mentioned here only to note that the medical profession apparently would welcome a TV commercial along the lines now being considered, particularly if it signaled, or caused, a reversal of the Company's long-standing policy of silence and disassociation in these matters. Dr. Homsy has done research in the use of "Teflon" sheeting in facial reconstruction--restoration of cheek and jawbones, eye socket etc., which in turn led to "Teflon" being specified as the preferred product for this use in many hospitals....

DuPont's policy to not endorse other companies' finished products that used Teflon is not evidence of a duty to warn. DuPont told Homsy of the wear properties of Teflon and of medical reports regarding the use of Teflon in the human body. DuPont stated that it did not perform the long-term studies for medical application of its products. Its reliance on Homsy was reasonable because he was familiar with the propensities of the product and was capable of (and required by law to) pass on warnings. Glenn, 836 S.W.2d at 649.

The potential joint venture

DuPont had exploratory discussions with Vitek and other companies about the possibility of a joint venture in the orthopedic field. Its discussions with Vitek, however, involved a femoral prosthesis, not the TMJ implant.

*16 Appellants cite a 1986 DuPont memorandum that assessed a potential relationship with Vitek involving a femoral prosthesis. The author states that the development department recommends against a joint venture with Vitek at the time principally because such a relationship would not increase DuPont's market strength and because DuPont should explore opportunities with major orthopedic suppliers. The author further comments on Homsy's and Vitek's technology. He states that Homsy's technology is not unique. He states that Homsy's coating a prosthesis with a porous PTFE composite (Proplast) to secure fixation by tissue ingrowth is not unique to Vitek. The author further states that the Proplast structure has not performed well in trials and may be too soft and crushable, which could result in abrasion of particulate material. The author noted that the prosthesis was very technique sensitive; if fitted just right, it works well, otherwise, there are a high percentage of failures. Lastly, the author comments that Homsy's "short cut to evaluation of prosthesis in humans by selling 'custom' prosthesis per surgeons 'specifications' may be appropriate for a small firm like Vitek but might result in too great a liability" for DuPont.

Again, DuPont's investigation of a potential joint venture with Vitek involved a femoral prosthesis, not the TMJ implant. Its evaluation of Vitek's femoral prosthesis in 1986 did not create a duty to warn appellants about Vitek's TMJ implant. [FN6]

FN6. Appellants also cite a technical brief on vascular and orthopedic implants prepared by DuPont, apparently in 1984. At one point, the report lists the pros and cons of six different materials used for tendon and ligament repair; one of the materials is Proplast. One "con" listed is that the Proplast product has abrasion resistance problems. Again, abrasion problems were known to DuPont and Vitek.

"Medical grade" Teflon

Appellants also contend DuPont knew Vitek advertised that it used "medical grade" Teflon in its products, and at the same time, DuPont maintained it did not make a medical grade Teflon. Appellants contend DuPont did nothing to stop Vitek's misrepresentations about using a "medical grade" of Teflon and argue DuPont knew Homsy and Vitek were unscrupulous.

A 1985 DuPont report noted that neither DuPont's disclaimer that it did not specifically make a medical grade Teflon nor the lack of a designated medical grade material has inhibited the use of DuPont's fluoropolymers in medical applications. The report provides that device manufacturers, which are required to comply with FDA regulations, do not require a medical grade polymer of any kind; consequently, DuPont did not need to develop such a grade of polymer, as one already existed "de facto."

Lontz testified that DuPont did not make a Teflon specifically designated as "medical grade." He testified, however, that Teflon wa, Dr sufficient quality to be used in medical applications. He testified Teflon could have been used in a medical application based upon purity and lack of contamination. Lontz testified that there is nothing about DuPont PTFE and FEP that makes them unsuitable for the use in the human body, and his opinion is not affected by the fact that DuPont does not make a Teflon designated as "medical grade." We disagree that, because DuPont was aware that Vitek represented it used a "medical grade" Teflon in its products, it was aware Vitek was an unscrupulous intermediary. The evidence shows a "medical grade," i.e., a grade of PTFE suitable for use in medical devices, existed de facto, even if DuPont did not market it as such.

*17 DuPont's PTFE and FEP have many industrial uses. Appellants argue, in effect, that DuPont needs to acquire, through experts and long-term testing, as much knowledge as every finished-product manufacturer has about products to which DuPont merely supplies a raw material. DuPont would be required to determine the possible risks associated with each potential use of its raw material. We disagree that DuPont owed such a duty in this case. Whether as a manufacturer of a nondefective component part or as a raw material supplier, DuPont did not owe a duty to warn appellants.

We affirm the summary judgment on appellants' negligent failure to warn claim. Because we affirm the summary judgment on the failure to warn claim for the reasons above, we need not address DuPont's alternative theory, that it did not owe a duty because the TMJ implant was an FDA regulated device.

Tortious concert of action

Appellants alleged that DuPont knew that Vitek's conduct in designing, manufacturing, and marketing the TMJ implants was a breach of Vitek's duty to use ordinary care and that DuPont gave substantial assistance to Vitek to violate that duty. They claim DuPont gave assistance by providing the component parts of the implants; by allowing Vitek to use its technology; by allowing it to use its registered trademark in marketing the implants; and by allowing Vitek to market DuPont's products as medical grade. They claim this assistance proximately caused their injuries. Appellants argue that public policy supports imposing liability on a knowing collaborator and that the summary judgment shows that DuPont was a knowing collaborator.

Under concert of action, those who are in pursuit of a common plan or design to commit a tortious act and actively participate in it or lend aid, cooperation, or encouragement to the wrongdoer are equally liable. Gaulding v. Celotex Corp., 772 S.W.2d 66, 69 (Tex.1989). In Gaulding, the court refused to apply the concert of action theory and declined to approve this theory of liability. Id.; Juhl v. Airington, 936 S.W.2d 640, 39 Tex. Sup.Ct. J. 830, 832 (June 28, 1996) (citing Gaulding, 772 S.W.2d at 71). In Juhl, the supreme court stated that "whether such a theory of liability is recognized in Texas is an open question." Id.

The Restatement (Second) of Torts § 876 (1977) defines the concert of action theory by imposing liability on a person for the conduct of another which causes harm if the defendant:

(a) does a tortious act in concert with the other or pursuant to a common design with the other; or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself; or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

*18 In Juhl, the supreme court compared subsection (a) of section 876 with the cause of action for civil conspiracy. 936 S.W.2d 640, 39 Tex. Sup.Ct. J. at 832. Section 876(a) requires at least a tacit agreement to participate in some tortious act, done in furtherance of a common goal or plan, and which causes injury. Id. This has common elements with common law civil conspiracy, which is a long recognized tort in this state. Id. at 832-33. The court noted that a civil conspiracy requires a specific intent to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Id. at 833. The court concluded that, because negligence is not an intentional wrong, one cannot agree or conspire to be negligent. Id.

In analyzing subsection (b) of section 876, the supreme court noted that it imposes liability not for an agreement, but for substantially assisting and encouraging a wrongdoer in a tortious act. 936 S.W.2d 640, 39 Tex. Sup.Ct. J. at 833. The court held that even if it were to adopt subsection (b), the plaintiff in that case could not recover under its terms because the summary judgment evidence conclusively disproved that the defendants breached any recognized or theoretical duty to the plaintiff. Id. at 833-34.

We have already held that DuPont did not breach any duty to appellants or commit the tortious acts asserted by them. Moreover, the summary judgment shows that DuPont and Vitek did not have a common plan or design to commit a tortious act. DuPont did not substantially assist or collaborate with Vitek in designing, manufacturing, or marketing the TMJ implant. DuPont sold raw materials that became part of the implant; it was not in concert with Vitek. Therefore, even if we were to adopt the concert of action theory of liability, appellants could not recover under its terms.

We affirm the summary judgment on this ground.

We overrule point of error one.

Baylor's summary judgment

In point of error two, appellants contend the trial nd lt erred by granting summary judgment for Baylor because the motion did not address all causes of action against Baylor and because fact issues exist regarding Baylor's negligence in hiring and supervising Homsy and in failing to warn them of the dangers of the TMJ implant.

Procedural argument

Appellants contend the summary judgment must be reversed and the cause against Baylor remanded because Baylor did not raise as grounds for summary judgment appellant's joint enterprise and gross negligence causes of action.

Appellants contend that, in their amended petition, they alleged both a joint venture and joint enterprise theory of liability against Baylor, but Baylor addressed only the joint venture ground in its motion for summary judgment. [FN7] Baylor counters that the two theories are the same; therefore summary judgment for one is summary judgment for both. [FN8] We agree. See LTV Energy Prod. v. Chaparral Inspection, 827 S.W.2d 593, 594-95 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

FN7. Baylor's motion addressed joint venture, while appellants' response to summary judgment only addressed joint enterprise.

FN8. Baylor expressly raised the joint venture theory in its motion for summary judgment. On appeal, appellants did not raise error regarding the trial court's grant of summary judgment on the joint venture theory; therefore, appellants have waived any complaint on appeal about that theory.

*19 Appellants also contend that Baylor did not address its "cause of action for gross negligence" in the motion for summary judgment. However, in their petition appellants did not allege "gross negligence" as a separcaticause of action. As a matter of law, a party's conduct cannot be "grossly negligent" without being negligent. Trevino v. Lightning Laydon, Inc. 782 S.W.2d 946, 949-50 (Tex.App.--Austin 1990, writ denied). Baylor moved for summary judgment on the negligence claim, and as discussed below, the trial court correctly granted summary judgment in Baylor's favor on the negligence claim. As required by McConnell, 858 S.W.2d at 338, Baylor expressly presented "lack of negligence" as a ground for summary judgment. By proving the lack of negligence as a matter of law, Baylor proved that appellants were not entitled to recover actual or exemplary damages for any alleged acts of negligence.

Negligent hiring

Appellants contend Baylor was negligent in hiring Homsy because it knew or should have known he was unqualified to oversee the design of medical devices. Appellants contend Homsy was unqualified because he was not a medical doctor; did not hold advance degrees in immunology, histology, or allergies; was not an oral surgeon; and never had a biology or toxicology course.

The basis of responsibility under the doctrine of negligent hiring is the master's own negligence in hiring an incompetent employee whom the master knows or by the exercise of reasonable care should have known was incompetent and thereby creating an unreasonable risk of harm to others. Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.App.--Tyler 1979, writ ref'd n.r.e.). Thus, Baylor is negligent in hiring Homsy if Baylor knew or should have known Homsy was incompetent or unfit for his employment and Baylor, therefore, created an unreasonable risk of harm to others. See id. at 178.

Liability for negligent hiring and supervising is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred. Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.--Corpus Christi 1987, writ denied). However, there is no question that there must be some connection between the plaintiff's injury and the fact of employment. Id. The negligence in hiring the employee must be the proximate cause of the injuries to the plaintiff. Portlock v. Perry, 852 S.W.2d 578, 583 (Tex.App.--Dallas 1993, writ denied); Dieter, 739 S.W.2d at 408.

Methodist Hospital hired Homsy as director of its prosthesis research laboratory (PRL) in 1966. He was hired by Methodist to establish the research laboratory to use his background in polymer technology to develop prosthetic implants. Homsy was director of the PRL until 1991.

Appellants contend Baylor was negligent in hiring Homsy when it knew or should have known that he was utterly unqualified to design medical devices because he did not have a medical background. They contend he should never have been leading a program that developed materials to implant into the human body. However, Baylor did not hire Homsy to design, manufacture, or market any medical devices, nor did Baylor hire Homsy to lead any program that developed implants. There is no fact issue that Homsy was negligent in performing or unqualified for the duties for which he was hired by Baylor, that is, to teach, to help train residents, and to assist in research, or that Baylor was negligent in hiring him for these duties.

Moreover, there is no evidence that any negligence in hiring Homsy was the proximate cause of appellants' injuries. See Portlock, 852 S.W.2d at 583. The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). These elements cannot be established by mere conjecture, guess, or speculation. Id. The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Id. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. Id. In other words, even if the injury would not have happened but for the defendant's conduct, the connection between the defendant and the plaintiff's injuries simply may be too attenuated to be legal cause. Id.

There is no evidence that conor's hiring of Homsy as a part-time faculty member had anything to do with appellants' injuries. Specifically, Baylor was not involved in developing Proplast or obtaining its patent. Baylor was not involved in any way with the design, development, selling, advertising, or marketing of the TMJ implants. Baylor did not receive any royalties or monetary benefit from the product. Baylor's Institutional Review Boards did not authorize Homsy to do any research on or studies of the TMJ implant. Homsy did not in his capacity as an employee and part-time faculty member of Baylor develop the TMJ implant.

*21 Baylor also asserted that, as a matter of law, it was not foreseeable that Baylor's hiring of Homsy would result in appellants' injuries. Foreseeability, the other aspect of proximate cause, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe, 907 S.W.2d at 478. The question of foreseeability asks whether the injury might reasonably have been contemplated as a result of the defendant's conduct. Id. We agree there is no evidence that it was reasonably foreseeable to Baylor, or contemplated by Baylor, that hiring Homsy as a part-time faculty member in 1967 would lead to appellants' injuries.

We affirm the summary judgment on appellants' negligent hiring cause of action.

Negligent supervision

Appellants contend that Baylor had a duty to supervise the scientific aspects of Homsy's work for Methodist, but completely failed to furnish adequate supervision. They contend that Baylor should have recognized the grave risks associated with Teflon implants. Again, liability for negligently supervising an employee is not dependent upon a finding that the employee was acting in the course and scope of his employment; however, there must by some causal connection between the plaintiff's injury and the fact of employment. Dieter, 739 S.W.2d at 408.

Appellants cite evidence regarding the relationship between Baylor and Methodist under an affiliation agreement, the role of Baylor's institutional review board, and a memorial fund that provided funds to Homsy in the PRL, to support their argument that a fact issue exists as to whether Baylor was negligent in supervising Homsy. The evidence is detailed below.

A contract existed between Methodist Hospital and Homsy in which products developed at Methodist's PRL would be assigned by Methodist for further development and for sale to a private corporation to be formed by Homsy. That corporation was Vitek, which Homsy formed in 1969. Under the contract, royalties from any product sales would be paid by the corporation to Methodist to reimburse it for 100 percent of the costs it incurred in the PRL, plus 40 percent for the time value of the money. Homsy founded Vitek to design, develop, test, market, manufacture, distribute, advertise, promote, and sell Proplast and other products invented by him. Homsy was the president, chairman of the board, and principal shareholder of Vitek.

Methodist and Baylor are separate legal entities. Methodist is one of the teaching hospitals affiliated with Baylor. Methodist operates a hospital. Methodist relies on Baylor for its expertise in education and research. An affiliation agreement between the two requires members of the active medical staff at Methodist to hold a faculty appointment at Baylor. Baylor was not involved in the contract between Methodist and Homsy. Again, Baylor and Vitek are separate legal entities, and Baylor never received royalties from Vitek on the sale of any Proplast product.

*22 The evidence shows that Methodist Hospital established the PRL independently, and without any involvement from Baylor. There is nothing in the affiliation agreement that requires the hospital to consult with the medical school about setting up a hospital department. The PRL did not have an organizational reporting relationship either to the chairman of orthopedics at Baylor or the chief of orthopedics at Methodist. The PRL was within their influence and medical specialty, but there was no reporting link between the PRL and the person who held those positions.

Dr. Joe King was on the staff of Baylor as chairman of its orthopedic department and on the staff of Methodist as chief of orthopedic service when Homsy was hired. In 1973, Dr. Hugh Tullos succeeded King as the head of the orthopedic department at Baylor and chief of service at Methodist. These appointments are essentially dual appointments under the affiliation agreement between Methodist and Baylor.

Dr. Tullos testified that Homsy received a salary from the orthopedic surgery department for teaching, for helping to train residents, and for lecturing. Tullos testified Homsy had an obligation to help residents and faculty in research in orthopedic surgery. He had the authority, as chief of orthopedics, to fire Homsy from Baylor. Homsy did his work for Baylor at the PRL at Methodist.

Dr. Tullos testified that he did not know whether anyone, other than Homsy, had anything to do with the quality of the work Homsy did in the PRL for Methodist. He was not in a position to review Homsy's chemical engineering work in the PRL. Tullos testified he was an orthopedist and did not have the expertise in chemical engineering to see whether Homsy's chemical engineer research projects were reasonable and pertinent. Homsy was the director of the PRL and had the expertise in polymer chemistry. Tullos was not competent to determine whether the Proplast and its components were manufactured correctly or whether they were free from impurities. However, Tullos was capable of reviewing, and did review, the clinical course of the experiments Homsy and he did at Baylor. Tullos testified that Homsy was also under his supervision and specific direction, as head of orthopedics at Baylor, with respect to his teaching at Baylor.

Dr. Bobby Alford, dean of medicine for Baylor, testified that Homsy was hired by Baylor to teach medical students and residents on a part-time basis. He also testified that the salary paid by Baylor to Homsy was solely compensation for his part-time teaching duties, not to manufacture and sell medical products. Some of Alford's testimony, however, conflicts with Tullos's testimony. Alford testified it was King's and then Tullos's responsibility to supervise Homsy's scientific activities in the PRL in their capacities as Baylor employees and as chief of service at Methodist. Part of the reason Baylor wanted its employees, King and Tullos, to review Homsy's work in the PRL was to provide oversight for the scientific integrity of the research and the development of safe products. As Homsy's supervisors, King, and then Tullos, could assess and evaluate the outcome of Homsy's work.

*23 The purpose of an IRB is to review proposed protocols. The IRB attempts to determine whether the risks to the subjects involved are minimized; the potential risk to the subjects justify the potential benefit of the proposed research protocol; patients are equitably chosen to participate in the study; and the patients in the research study had adequate information to make an informed decision whether to consent to the protocol. The review is an essential link for the proper evaluation and conduct of experiments. The experimental protocol is what is approved by the IRB.

Other than disapproving all or part of a proposed study, the IRB does not and cannot control the direction, results, or use of the research. The IRB would not stop a product development or testing. The IRB does not approve products for sale. It does not inquire about applications of drugs or devices not presented to the IRB or police the activities of researchers as to matters not brought for approval to the IRB. Homsy presented several research protocols involving the use of Proplast in the hip, bladder, and knee. These research protocols were all approved by Baylor's IRB. Baylor's IRB never reviewed any research protocol involving the use of Proplast in an implant device for the TMJ.

Proplast was invented by Homsy in the PRL. Proplast is still approved by the FDA as a general surgical and dental implant device. It is still used for multiple bioimplant purposes in the United States and around the world. The process of laminating Proplast to FEP for use on a hip implant was also developed at the Methodist PRL. However, no Proplast TMJ implant research work was done in the PRL, and the development of Proplast FEP laminated sheeting for the TMJ implant occurred at Vitek.

Proplaaineas tested for many uses and applications in the human body at Baylor. These tests included the use of different Proplast implants in animals, such as baboons, rabbits, chickens, and dogs. However, no testing or development of the TMJ implant occurred at Baylor or, again, at the PRL. It is true that Baylor-affiliated physicians participated in human clinical research involving various prostheses containing Proplast. However, none of the research performed by them was for prostheses involving the TMJ; the research was for the hip, hand, knee, bladder, and middle ear.

Homsy and Baylor-affiliated physicians worked together on research regarding a Proplast total hip replacement implant. In the early 1980s, Tullos stopped using the Proplast hip implant because of problems that developed involving the design and fit of the implant and the strength of the coating. He also observed osteolysis, or bone loss, in Proplast total hip replacement implants. Tullos, with others, wrote an article reporting on the success and failure rate of the hip implant, which was made of the femoral stem with a Proplast coating and another component. The article reported that 36 percent of the implants failed, which was unsatisfactory. Homsy disagreed with the authors' conclusion regarding the implant.

*24 Tullos testified that Baylor continued to send audit forms to the FDA regarding the hip implant, which was the supervisory agency under which it was performing. Tullos did not go back to the Baylor IRB after he ceased using the hip implant because there was no reason to do so. Tullos testified that the fact a product does not work in one area of surgery does not determine whether it will work or not in another area.

Homsy established a fund in memory of Dr. Joe King, and he determined how the money in the fund would be spent. The fund was set up by him to support research done by him and pay his expenses in the PRL. The money in the fund was from Vitek, Homsy's company, among other contributors. The fund was set up at Baylor. The fund was set up under orthopedics, and therefore came under orthopedics's budget and budget scrutiny. The money in the fund was not spent by the department of orthopedic surgery. Baylor provided funding for some students or other individuals to work in Methodist's PRL, through these restricted funds. Dr. Tullos testified that he administered the fund for Baylor and that money from the fund went to Homsy's projects at the PRL. Other doctors established such funds for their research.

From 1979 through 1984, John Davidson, a surgical technician employed by Baylor in the orthopedics department, worked in connection with the PRL. His sole function with the PRL was to attend every hip implant surgery involving a hip implant with a stem coating of Proplast. The hip implants were being researched during that time, and his purpose was quality control, to ensure that each hip implant was inserted in the same manner so that the results could be validly compared as a controlled study. He was not involved with the activities of the PRL in any other way. He was unaware of and never saw any TMJ implant investigated by any Baylor-affiliated doctor or department. Baylor orthopedists do not operate on joints above the neck, and Baylor had no department of dentistry. Although his salary was paid through the fund, he was never paid by Baylor, the fund, or anyone else to work on, investigate, research, or participate in any aspect of any TMJ implant. As part of his employment, he had an option to purchase Vitek common stock.

This evidence does not raise a fact issue that Baylor was negligent in supervising Homsy for work he performed at the PRL or at Baylor. Moreover, Baylor's supervision of Homsy at Baylor or even in the PRL did not proximately cause appellants' injuries. See Doe, 907 S.W.2d at 477.

The evidence above shows the TMJ implant was not researched, designed, developed, or tested at Baylor. No money from the Dr. Joe King fund was used for researching, developing, designing, or testing the TMJ implant. Homsy was assisted with the TMJ implants by Dr. Kent. Dr. Kent, who was not affiliated with Baylor and who held a faculty appointment with the University of Texas Dental Branch, was Vitek's exclusive consultant on the use of implants in oral surgery. [FN9] No Baylor affiliated physician worked on or considered the TMJ implant. The Baylor IRB did not review any protocols for the TMJ implant. In fact, Baylor does not have a dentistry department or an oral and maxillofacial surgery department.

FN9. Homsy also held a faculty appointment with the University of Texas Dental Branch.

*25 Moreover, Methodist, not Baylor, was vested by written contract with the rights to Proplast. All the patents for Proplast were applied for by Homsy and prepared by lawyers hired by Methodist. Baylor has never held any proprietary interest in any patent for Proplast or any patent for any TMJ prosthesis containing Proplast or otherwise. Baylor never sought FDA approval for Proplast. Baylor has never asserted any right to Proplast and is not entitled to a royalty or other payment from the sale of Proplast products. Baylor has not put any Proplast in the stream of commerce.

While Baylor may have supervised Homsy's teaching and research activities at Baylor, it had no control or right of control to supervise or otherwise interfere with the activities of Vitek. Homsy's part-time faculty position at Baylor did not prohibit him from forming Vitek, nor did Baylor have the right to claim an interest in the company. Baylor did not have the right to control the design and manufacturing of a product independently developed by and sold at Vitek, a separate legal entity.

Appellants argue that Baylor failed to supervise or adequately supervise Homsy's activities in the PRL. However, even if Baylor was charged with supervising Homsy in the PRL, none of his activities in the PRL included the development of the TMJ implant of which appellants' complain, and there is no evidence that Baylor inadequately supervised Homsy in developing or working with Proplast on the projects actually taking place in the PRL or at Baylor.

We affirm the summary judgment on appellants' negligent supervision cause of action.

Negligent failure to warn

Appellants contend there is a fact issue regarding Baylor's negligence in failing to warn of the dangers of the TMJ implant. In its motion for summary judgment, Baylor asserted that it had no duty to warn. We agree.

Again, the issue in a negligent failure to warn case is simply whether a reasonably prudent person in Baylor's position would warn of hazards associated with the use of its product. Alm, 717 S.W.2d at 591. We hold that the TMJ implae toas not Baylor's product; therefore, it had no duty to warn of its dangers.

Baylor was not involved in the design, development, selling, advertising, or marketing of the TMJ implant or Proplast as a product in general. Baylor was not involved in obtaining FDA approval for any of those products. Baylor did not participate in obtaining a patent on those products. While Baylor's IRB reviewed protocols for some Proplast implants (for example implants in the hip, bladder, and knee), Baylor's IRB did not review Homsy's or Vitek's protocol regarding any research, study, marketing, or implantation of the TMJ implant.

Vitek and Baylor are separate legal entities. Baylor had no control over Vitek or the design or marketing of the TMJ implant. Baylor was not a party to the contract between Homsy and Methodist Hospital. No contract existed under which Vitek paid any money to Baylor. Baylor never received a royalty from the sale of any of the TMJ implant. Baylor had no financial interest in the marketing and sale of the TMJ implant. Homsy was not working for Baylor when he, through Vitek, developed, designed, marketed, and sold the implant.

*26 We conclude that Baylor did not have a duty to warn of the dangers of the TMJ implant. We uphold the summary judgment on this ground.

We overrule point of error two.

LSU

Appellants contend the trial court erred by granting LSU's special appearance and plea to the jurisdiction and by denying their motion for continuance.

Plea to the jurisdiction

In point of error five, appellants contend the trial court erred in sustaining LSU's plea to the jurisdiction because Louisiana's Constitution unconditionally waives sovereign immunity in personal injury cases. [FN10]

FN10. Both sides agree that the issue of sovereign immunity applies to LSU as an agency of the State of Louisiana. LA. CONST. art. VIII, § 7; La.Rev.Stat.Ann. §§ 17:3215, 17:3217, 17:3220-21, 17:3351(A)(1) (West 1982 and Supp.1996); La.Rev.Stat.Ann. §§ 36:4(A)(14), 36:651, 36:801-01.01 (West 1985 and Supp.1995).

Comity is the principle under which the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign, not as a rule of law, but rather out of deference or respect. Lee v. Miller County, Arkansas, 800 F.2d 1372, 1375 (5th Cir.1986); New Process Steel Corp. v. Steel Corp. of Texas, 638 S.W.2d 522, 524 (Tex.App.--Houston [1st Dist.] 1982, no writ). It is a doctrine grounded in cooperation and mutuality. K.D.F. v. Rex, 878 S.W.2d 589, 593 (Tex.1994). Texas will extend comity by recognizing the laws and judicial decisions of another state, unless the foreign state declines to extend comity to Texas or sister states under the same or similar circumstances. Id. at 593-94. Texas will also extend comity to the law of a cooperative jurisdiction so long as that law does not violate Texas public policy. Id. at 594. In the absence of a clear indication to the contrary, we will treat Louisiana as a cooperative jurisdiction. See id. at 595.

This Court recently extended comity to Louisiana. Hawsey v. Louisiana Dep't of Social Serv., No. 01-94-00882-CV, slip op. at 7 (Tex.App.--Houston [1st Dist.], August 15, 1996, writ requested) (op. on reh'g). We found that, although no Louisiana case shows Louisiana's exercise of jurisdiction over Texas, Louisiana has extended comity to other states. Id., slip op. at 6 (citing Succession of Fisher, 235 La. 263, 103 So.2d 276, 281 (La.1958); Fisher v. Bullington, 223 La. 368, 65 So.2d 880, 882 (La.1953)). Similar to Texas, Louisiana has held that comity requires it to recognize the laws of the other states unless those laws would violate the positive law or public policy of the State of Louisiana. Fisher, 103 So.2d at 281. In Hawsey, we determined that Louisiana was a cooperative jurisdiction for purposes of applying comity. Slip op. at 6.

We must now determine, as in Hawsey, whether the extention of comity to Louisiana in this case violates the public policies of Texas. Rex, 878 S.W.2d at 594; Hawsey, slip op. at 6-7.

*27 Article 12, section 10(A), of the Louisiana Constitution waives sovereign immunity from suit and liability for injury to person or property. La. Const. art. XII, § 10(A). However, section 10(C) provides that the legislature shall provide a procedure for suits against the state, its agencies, or political subdivisions. La. Const. art. XII, § 10(C). Section 10(C) allocates to the Louisiana legislature the power to establish procedures for suits authorized under section 10(A). Chamberlain v. State, 624 So.2d 874, 882-83 (La.1993).

In Chamberlain, the court held unconstitutional a state statute that imposed a $500,000 ceiling on general damages recoverable in personal injury suits against the state because the statute contravened the proscription against sovereign immunity in article twelve, section 10. 624 So.2d at 875. The court stated, "while the legislature can enact procedural requirements for enforcing the right to sue granted under Section 10(A)-- indeed Section 10(C) mandates that the legislature do so--the legislature cannot enact substantive requirements that would curtail, abridge, impair or burden the exercise of such constitutionally conferred right." Id. at 882. The court noted that statutes authorizing nonjury trials in cases involving governmental entities and authorizing different procedural rules in public and private suits does not violate the waiver of sovereign immunity. Id. at 883.

As authorized by article 12, section 10(C), Louisiana's venue statute provides that all suits filed against the state or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arose. La.Rev.Stat.Ann. § 13:5104 (West 1991). Moreover, the venue statute provides that a suit against the state or a state agency or political subdivision shall not be instituted in any court other than a Louisiana state court. La.Rev.Stat.Ann. § 13:5106(A) (West Supp.1996). Section 10(C) authorizes the Louisiana legislature to enact procedures for suits against the state; section 13:5106(A) is one such procedure.

In Rex, the Texas Supreme Court held a Kansas mandatory venue statute, which conditionally waived sovereign immunity for a state agency but required suits to be filed in a particular Kansas county, did not violate any Texas public policy because Texas has similar statutes serving the same purpose. Id. Likewise, Louisiana's mandatory statute, requiring suits against it to be brought in Louisiana state court, does not violate any Texas public policy. Hawsey, slip op. at 7.

Because Louisiana is a cooperative sister state and because applying its law does not violate the public policy of Texas, comity should be extended. Hawsey, slip op. at 7. The trial court properly sustained LSU's plea to the jurisdiction.

*28 We overrule point of error five.

We affirm the trial court's decision to sustain the plea to the jurisdiction; therefore, we need not address its decision to grant LSU's special appearance discussed in points of error three and four.

Conclusion

We affirm the summary judgments granted in favor of DuPont and Baylor. We affirm the plea to the jurisdiction sustained in favor of LSU.

HEDGES and FARRIS, JJ., also sitting. [FN11]

FN11. Justice David L. Farris, former justice, Second Court of Appeals, at fort Worth, Texas, sitting by assignment.

END OF DOCUMENT