Yalter

MEMORANDUM ***

Mehmet and Bertha Yalter appeal two aspects of the district court’s grant of summary judgment in favor of the defendant. The panel has jurisdiction pursuant to 28 U.S.C. § 1291 . The defendant has moved to strike portions of the Yalters’ reply brief. For the reasons given below, we deny the defendant’s motion to strike as moot, and we affirm the district court’s decision.

With respect to the strict liability claim, nothing suggests that Endocare delegated its duty to instruct 1 to Aymed or Mr. Ay. Endocare satisfied its duty to warn or instruct its users by providing clear, written instructions along with the stent. 2 Therefore, we affirm on the first issue.

With respect to the negligence claim, because Aymed did not render the service of instructing doctors on use of the stent device “for a specified recompense ... under [Endocare’s] control,” 3 the district court correctly concluded that Aymed was not an independent contractor of Endocare with respect to this task. Aymed was compensated by Endocare for the service of selling stent devices to doctors, not for the service of instructing doctors on their proper use. Accordingly, Aymed was not acting as Endocare’s…