
    Alfred BINGHAM, Plaintiff-Appellant, v. MENTOR CORPORATION, Defendant-Appellee.
    No. 95-20288.
    United States Court of Appeals, Fifth Circuit.
    Jan. 5, 1996.
    
      Jeffrey P. Hintermeister, Houston, TX, for plaintiff-appellant.
    Michael 0. Connelly, Earnest William Wotring, Mayor, Day, Caldwell & Keeton, Houston, TX, for defendant-appellee.
    Before JONES, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
   PER CURIAM:

Appellant Alfred Bingham (“Bingham”) appeals the district court’s judgment that all of his claims against Mentor Corp. (“Mentor”) were preempted as a matter of law by § 360k of the Medical Device Amendments of the Food, Drug & Cosmetic Act and the court’s grant of summary judgment to Mentor on that ground. Because this court has already decided the precise issues raised on this appeal in Feldt v. Mentor Corp., 61 F.3d 431 (5th Cir.1995), we affirm the grant of summary judgment in part, reverse in part, and remand.

DISCUSSION

Although Bingham raised several claims against Mentor in the district court for injuries he allegedly suffered when his Mentor Mark II inflatable penile prosthesis failed, he asserts on appeal only claims for design defects, a failure to warn, and for violations of the Texas Deceptive Trade Practices Act (“DTPA”).

The district court properly granted summary judgment to Mentor against Bingham’s claims for a failure to warn and for violations of the DTPA. As this court recently explained in Feldt, § 360(k) preempts claims that “are grounded on allegations of inadequate warnings or labeling. The district court did not err in finding [such a] failure-to-warn claim [preempted.]” Feldt, 61 F.3d at 436. Likewise, because Bingham’s only DTPA claim “relate[s] to general marketing or advertising of the device, [it is] preempted by the FDA’s explicit regulations on labels and warnings.” Feldt, 61 F.3d at 438.

Although it properly granted summary judgment on Bingham’s claims for failure to warn and for violations of the DTPA, the district court erred when it did so for Bingham’s design defect claim. This court in Feldt refused to hold such claims preempted because

[a]t the very least, then, the nexus between the state and federal requirements is much weaker with respect to design defects than it is with respect to manufacturing and labeling, and we find this nexus inadequate to justify the displacement of state law regarding defective design.

Feldt, 61 F.3d at 438. Consequently, Bing-ham’s state law claims against Mentor for defective design of his penile prosthesis are not preempted by § 360(k) and survive a summary judgment on that basis. As defense counsel are aware, one panel of this court cannot overrule a prior, panel decision.

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment is AFFIRMED in part, REVERSED in part, and REMANDED.  