1 Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-20288

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ALFRED BINGHAM,

Plaintiff-Appellant,

versus

MENTOR CORPORATION,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-94-0025)

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January 5, 1996

Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

Per Curiam 1 :

Appellant Alfred Bingham (“Bingham”) appeals the district

court’s judgment that all of his claims against Mento r Corp.

(“Mentor”) were preempted as a matter of law by § 360k of the

Medical Device Amendments of the Food, Drug & Cosmetics 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.2 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 F eldt,

§ 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.]” F eldt, 61

F.3d at 4 36. 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 F eldt refused to hold su ch 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 nexu s inadequate to justify

the displacement of state law regarding

defective design.3

Feldt, 61 F.3d at 438. Consequently, Bingham’s state law claims

against Mentor for defective design of his penile prosthesis are

n ot 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

.