USA v. Robert John Jackaway

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-4318
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Richard Symens; Joyce Symens, *
husband and wife, *
*
Appellants, *
*
v. *
*
Smithkline Beecham Corporation, a *
Pennsylvania Corporation, *
* Appeals from the United States
Appellee, * District Court for the
* District of South Dakota.
------------------- *
* [UNPUBLISHED]
Ivan Sjovall, doing business as Sjovall *
Feedyard, *
*
Appellant, *
*
v. *
*
Smithkline Beecham Corporation, *
a Pennsylvania Corporation, *
*
Appellee. *
___________
No. 00-1472
___________
Norman Schick; Carol Schick, *

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1Plaintiffs’ separate appeals have been consolidated for disposition.
2The HONORABLE CHARLES B. KORMANN, United States District Judge
for the District of South Dakota.
-2-
*
Appellants, *
*
v. *
*
Smithkline Beecham Corporation, *
a Pennsylvania Corporation, *
*
Appellee. *
___________
Submitted: March 15, 2001
Filed: March 19, 2001
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
In 1994 plaintiffs1 each filed complaints against Smithkline Beecham
Corporation (SBC), alleging that their cattle became sick after being vaccinated with
three bovine vaccines manufactured by SBC. Plaintiffs asserted state law claims for
strict liability, breaches of the implied warranties of merchantability and fitness, false
advertising and promotion, failure to warn, and fraud on the licensing agency. In an
interlocutory appeal from the district court’s2 denial of SBC’s motion for summary
judgment, we reversed and remanded, holding that the Virus-Serum-Toxin Act
(VSTA), 21 U.S.C. §§ 151-159, as construed by the Animal and Plant Health
Inspection Service (APHIS), preempted plaintiffs’ claims to the extent they relied upon
liability-creating premises different from or in addition to those created by VSTA. See

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3The HONORABLE RICHARD H. BATTEY, United States District Judge for
the District of South Dakota.
-3-
Symens v. SmithKline Beecham Corp., 152 F.3d 1050, 1054-56 (8th Cir. 1998). We
remanded the case to the district court to determine, by a comparison of plaintiffs’
substantive state law claims and federal requirements, whether the claims fell within
VSTA’s preemptive scope. On remand, the district court3 granted SBC’s renewed
motion for summary judgment, finding that all but one of plaintiffs’ claims were
preempted because they imposed additional or different requirements than those
imposed by federal regulations. The court found that the remaining claim, while not
preempted, failed for lack of evidence creating any genuine issue of material fact.
Upon a careful review of the record and the parties’ submissions, we conclude
that the district court faithfully carried out our mandate in Symens to analyze the
claims, and that summary judgment was properly granted. Plaintiffs have provided no
persuasive reason why the grant of summary judgment should be reversed. See Fed.
R. Civ. P. 56(e).
Accordingly, we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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