_____________ No. 96-1443SD

_____________ David Enos, general guardian * and parent of Jason Enos, a * minor, * * Appellant, * * v. * * Key Pharmaceuticals, Inc., a * Appeal from the United States New Jersey corporation; * District Court for the District Schering-Plough Corporation, a * of South Dakota. New Jersey corporation; * Schering Corporation, a New * Jersey corporation; Pfizer, * Inc., doing business as Roerig * Division, a Delaware * corporation, * * Appellees. *

_____________ Submitted: November 18, 1996 Filed: February 10, 1997

_____________ Before FAGG, LAY, and HANSEN, Circuit Judges.

_____________ FAGG, Circuit Judge.

When he was three years old, Jason Enos was taking an asthm a medication called the ophylline. Jason suffered seizures and severe brain damage. In 1983, his mother Cheryl sued Jason's doctors for malpractice. Jason's attorneys asked Dr. Miles Weinberger, a theophylline authority, fo r his opinion on the ca use of Jason's seizures. Dr. Weinberger found fault with Jason's doctors, but said the seizures probably were not caused b y theophylline. The parties settled. In exchange for $900,000, both Cheryl and Jason's father David Enos signed a broadly worded release. In 1995, David

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Enos b rought this action on Jason's behalf against Key Pharmaceuticals , Inc., and Pfizer, Inc., producers of theophylline under the respectiv e brand names Theo-Dur and Sustaire. David's claims include product s liability, fraud, and misrepresentation. Key an d Pfizer moved for summary judgment, asserting in defense the release David signed. The distric t court granted the motion, David appeals, and we affirm.

We re view de novo the district court's grant of summary judgment , applying the same standards as did the district court. See PMX Indus. , Inc. v. LEP Profit In t'l , 31 F.3d 701, 703 (8th Cir. 1994). South Dakota law controls this diversity case, and we review the district court' s interpretation of tha t law de novo. See Salve Regina College v. Russell , 499 U.S. 225, 231 (1991).
The district court concluded the release Jason's parents execut ed was general and hence bars David's present claims. We agree. In South Dakota as elsewhere, a release is a contract. See John son v. Rapid City Softball Ass'n , 514 N.W.2d 693 , 697 (S.D. 1994). In construing a contract, courts must give effect to the intent of the parties, which is found in th e contract's language. See American State Bank v. Adkins , 458 N.W.2d 807, 809 ( S.D. 1990). The instrument Cheryl and David signed released bot h Jason's doctors and all other persons, firms, corporations, or entities wh o are or might be liable, . . . from any and all actions , causes of action, claims, demands, dama ges . . . of every kin d, character and description, including, but no t limit ed to, such allegedly on account of, or in any wa y growin g out of, . . . personal injuries and propert y da mage . . . resulting, or to result, from the allege d negligence and malpractice of Defendant s . . . or others. David mistakenly construes the quoted language as releasing only claim s resulting from neglig ence and malpractice, not the products liability and other claims David now asserts. The plain terms of the release contradict David's interpretation. The contract releases all entities from all claim s of every kind, "including,

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but no t limited to" claims resulting from negligence and malpractice

. David sig ned a general release. See Flynn v. Lockhart , 526 N.W.2d 743 , 744-46 (S.D. 1995); C leland v. United States , 874 F.2d 517, 519 (8th Cir. 1989).
Anticipating our conclusion, David c ontends that even if the release was general, South Da kota public policy forbids our enforcing it in Key's and Pfizer's favor. David cites South Dakota Codified Laws § 53-9- 3 (Michie 1990), which provides: Al l contracts which have for their object, directly o r indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another . . . are against the policy of the law. The district court concluded § 53-9-3 applies only to the parties to a contract, not to nonparties like Key or Pfizer. In dicta, the Suprem e Court of South Dakota has gone a little further than that, suggesting § 53

- 9-3 would apply against a nonparty who was a fiduciary of a party to a release. See Rosebud Sioux Tribe v. Strain , 432 N.W.2d 259, 263 & n. 2 (S.D. 1988). But neither Key nor Pfizer was Jas on's or David's fiduciary. Indeed, contrary to David's view, the public pol icy of South Dakota favors assertion of release by nonparties to the release contract. See Flynn , 52 6 N.W.2d at 745-46.
Finally, David argues Key and Pfizer should be equitably estoppe d from relying on the release because Dr. Weinberger concealed material fact s from Jason's attorney s. See Century 21 Associated Realty v. Hoffman , 503 N.W.2d 861, 866 (S.D. 1993) (listing elements of equitable estoppel). For equitable estoppel to apply against Key and Pfizer, Jason must have been deceive d by Key and Pfizer. See id. Thus, Dr. Weinberger's conduct i s irrelevant unless in his dealings with Jason's a ttorneys, the doctor acted
as Key's and Pfizer's agent. Although David contends Dr. Weinberger had
a financial interest in Key, David has not asserted facts that, taken as true, would establish the doctor was Key's agent

. See Southard v. Hansen , 376 N.W.2d 56, 58 (S.D. 1985)

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(reciting elements of agency relationship).
We sympathize with Jason, but the law in this case is clear. J ason's parents agreed to rel ease all claims. We thus affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.