UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


AMERICAN CYANAMID COMPANY,            
                Plaintiff-Appellee,
                v.                             No. 99-2224
ST. LOUIS UNIVERSITY,
               Defendant-Appellant.
                                      
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
             J. Frederick Motz, Chief District Judge.
                        (CA-99-1316-JFM)

                     Argued: November 2, 2000

                      Decided: March 1, 2001

  Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.



Reversed and remanded by unpublished opinion. Judge Traxler wrote
the majority opinion, in which Judge Luttig joined. Judge Niemeyer
wrote a dissenting opinion.


                           COUNSEL

ARGUED: Marc Simon Moller, KREINDLER & KREINDLER,
New York, New York, for Appellant. Roger William Yoerges, WIL-
MER, CUTLER & PICKERING, Washington, D.C., for Appellee.
ON BRIEF: Henry Gluckstern, Special Counsel, KREINDLER &
KREINDLER, New York, New York; Rex Carr, CARR, KOREIN,
TILLERY, KUNIN, MONTROY & GLASS, East St. Louis, Illinois;
2       AMERICAN CYANAMID COMPANY v. ST. LOUIS UNIVERSITY
Stanley P. Kops, Philadelphia, Pennsylvania; Mark R. Dunn, HER-
ZOG, CREBS & MCGHEE, L.L.P., St. Louis, Missouri, for Appel-
lant. David P. Donovan, Lara A. Englund, WILMER, CUTLER &
PICKERING, Washington, D.C., for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

TRAXLER, Circuit Judge:

   St. Louis University ("SLU") appeals from the grant of summary
judgment in favor of American Cyanamid Company in American
Cyanamid’s declaratory judgment action. We reverse and remand for
further proceedings.

                                  I.

   This case is a companion case of sorts to St. Louis University v.
United States, No. 99-2227, which involves an appeal from the grant-
ing of summary judgment against SLU in a contribution action. A
more detailed explanation of the background facts is set forth in our
opinion filed today in No. 99-2227.

  Shortly after receiving Orimune, an oral polio vaccine containing
an attenuated live polio virus, Danny Callahan became paralyzed.
Callahan sued SLU and others in Missouri state court, alleging that
SLU’s negligence in treating an abscess suppressed his immune sys-
tem and caused him to contract polio. The jury returned a $16 million
verdict against SLU, and that verdict was affirmed on appeal. See
Callahan v. Cardinal Glennon Hosp., 

 (1993) (en
banc).

  Thereafter, SLU filed contribution actions in state and federal court
against American Cyanamid Company, the parent company of the
        AMERICAN CYANAMID COMPANY v. ST. LOUIS UNIVERSITY              3
vaccine manufacturer. These actions were dismissed for various pro-
cedural reasons. SLU also commenced in federal district court in
Maryland a contribution action against the United States government,
contending that the government’s negligence in approving the vaccine
was the cause of the Danny Callahan’s injuries. The district court in
that case granted summary judgment in favor of the government. See
St. Louis Univ. v. United States, No. JFM-95-3639 (D. Md. filed April
29, 1999) ("SLU I"). That summary judgment order is before this
court in No. 99-2227.

   After the district court granted summary judgment against SLU in
SLU I, American Cyanamid filed this declaratory judgment action in
the same federal district court seeking a declaration that the summary
judgment order in SLU I prevented SLU from seeking contribution
against American Cyanamid. The district court agreed with American
Cyanamid, gave collateral estoppel effect to its order in SLU I, and
granted summary judgment in favor of American Cyanamid.

                                   II.

   In SLU I, the central issue was whether the district court properly
gave collateral estoppel effect to the Callahan state court judgment,
an issue governed by Missouri law. This case likewise presents a col-
lateral estoppel question, albeit a different one: did the district court
properly give collateral estoppel effect to its order in SLU I. This is
a question controlled by federal law and reviewed de novo. See Tuttle
v. Arlington County School Bd., 

, 703 (4th Cir. 1999)
(per curiam) ("We review the grant or denial of collateral estoppel de
novo."); Keith v. Aldridge, 

, 739 (4th Cir. 1990)
("[F]ederal law controls [the] assessment of the preclusive effect of
[an] earlier federal judgment.").

  Collateral estoppel applies if the proponent establishes that:

    (1) the issue sought to be precluded is identical to one previ-
    ously litigated; (2) the issue [was] actually determined in the
    prior proceeding; (3) determination of the issue [was] a criti-
    cal and necessary part of the decision in the prior proceed-
    ing; (4) the prior judgment [is] be final and valid; and (5)
    the party against whom estoppel is asserted . . . had a full
4       AMERICAN CYANAMID COMPANY v. ST. LOUIS UNIVERSITY
    and fair opportunity to litigate the issue in the previous
    forum.

Sedlack v. Braswell Servs. Group, Inc., 

, 224 (4th Cir.
1998). Because we have reversed the district court’s summary judg-
ment order in SLU I and remanded for further proceedings, there is
no longer a final judgment in SLU I that can be given collateral estop-
pel effect. See Coyne & Delany Co. v. Selman, 

, 1473
(4th Cir. 1996) (reversing dismissal of plaintiff’s first case ("Selman
I"), which required reversal of trial court’s dismissal on res judicata
grounds of plaintiff’s second case ("Selman II"): "Because of our
decision today, further proceedings will be necessary in Selman I on
remand. Accordingly, there is not a final judgment on the merits in
Selman I, and res judicata does not bar Selman II."); Ornellas v. Oak-
ley, 

, 1356 (9th Cir. 1980) ("The district court, relying
on the summary judgment disposition of Ornellas’ LMRDA claims,
granted the defendants’ motion to dismiss Ornellas[’] Title VII claim
on the ground of res judicata. Because we have reversed the district
court’s summary judgment of the LMRDA claims, we must also
reverse the dismissal on the Title VII claims. A reversed or dismissed
judgment cannot serve as the basis for a disposition on the ground of
res judicata or collateral estoppel."); see also South Carolina Nat’l
Bank v. Atlantic State Bankcard Ass’n, Inc., 

, 1430 (4th
Cir. 1990); International Tel. & Tel. Corp. v. General Tel. & Elecs.
Corp., 

, 1163 (4th Cir. 1975) (per curiam).

   Because the district court’s grant of summary judgment in this case
was premised on the collateral estoppel effect of the court’s SLU I
summary judgment order, our reversal today of the decision in SLU
I compels a reversal of the decision in this case. Accordingly, the
decision of the district court is hereby reversed and the case is
remanded for further proceedings.

                                      REVERSED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

  Because I would conclude that St. Louis University failed to pres-
ent sufficient evidence of causation, I respectfully dissent.