GELLEY v. ASTRA PHARMACEUTICAL PRODUCTS, INC.

No. 79-1170.

610 F.2d 558 (1979)

Carol A. GELLEY, Trustee for the Heirs of Richard Lawrence Gelley, Deceased, Appellant, v. ASTRA PHARMACEUTICAL PRODUCTS INCORPORATED, a New York Corporation; The United States of America; Hanson Dental Supplies, Inc., a North Dakota Corporation; Jerry K. Brunsoman, D.D.S., individually and as an employee or independent contractor for MacKay & Fuller, D.D.S. Professional Association; MacKay & Fuller, D.D.S. Professional Association, a Minnesota Corporation, its Employees and Agents, Appellees.

United States Court of Appeals, Eighth Circuit.

Decided December 18, 1979.


Attorney(s) appearing for the Case

Richard C. Smith, Minneapolis, Minn., for appellant.

James T. Martin, Gislason & Martin, P. A., Edina, Minn., argued, for appellees, Astra Pharmaceutical Products, Inc., and Hanson Dental Supplies, Inc. James T. Martin, Richard D. Allen, Richard D. Allen, Ltd., Minneapolis, Minn., on brief.

James P. Klapps, Asst. Director, Torts Branch, Civil Div., U. S. Dept. of Justice, Washington, D. C., argued, remaining appellees; Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C.; Andrew D. Danielson, U. S. Atty., Minneapolis, Minn., Joanne S. Sisk, Associate Chief Counsel for Enforcement, Dept. of Health, Education and Welfare, Food & Drug Administration, Rockville, Md., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and REGAN, Senior District Judge.


BRIGHT, Circuit Judge.

Carol A. Gelley, trustee for the heirs of Richard Lawrence Gelley, appeals the order of the district court1 dismissing this wrongful death action for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Fed.R. Civ.P. 12(b)(1) and 12(b)(6), respectively. Gelley argues that because the complaint states an actionable claim for negligence against a private person under...

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