text:
A device for use with a negative pressure bandage for supply negative pressure. The device includes a pump module and a controller module. The pump module contains a power source and a pump. The pump module is removably contained in the controller module. The pump module and controller module can be connected with a connector that provides both a physical and pneumatic connection. The controller module may include one of more visual indicators for allowing the status of the device to be observed at a distance.
This application claims priority to U.S. Provisional Application No. 61/489,299 filed on May 24, 2011, the entirety of which is incorporated herein.
The invention relates to a device having a controller module and pump module for providing negative pressure to a wound site.
Negative pressure wound therapy is one method that is used to treat certain wounds or sores on people. In general, a bandage is placed over a wound site, and connected to a pump. The pump provides suction, creating a negative pressure under the bandage at the wound site. Exudates and other materials are removed from the wound site, and the wound healing progresses.
Some negative pressure wound therapy systems utilize large pumps because they require a canister, or other structure for storing exudates and other liquids removed from the wound site. Such systems can inhibit or interfere with a patient's movement during treatment and are generally large and cumbersome. Moreover, a patient can feel uncomfortable moving around with such a large pump and/or device being associated with his/her body.
On the other hand, there are certain negative pressure wound therapy systems that do not require such canisters as the exudates and other materials are stored within the disposable bandage. One such system/bandage is made available by Kalypto Medical, LLC. of Mendota Heights, Minn.
Since the device/system does not require a canister, a handheld pump (or other generally smaller pump) may be used in association with these types of bandages. For example, U.S. Pat. Pub. No. 2009/0299306 (assigned to the present applicant and the entirety of which is incorporated herein by reference) discloses a small pump that is used in association with such a bandage (that collects and stores liquids/exudates within the bandage). The pump disclosed therein utilities a controller module and a small pump in a pump module.
However, while such a device is beneficial and has significant advantages over the prior art systems and devices, it would be beneficial to minimize the components of the pump module, as it is believed that the pump is the structure most likely to fail in the device and require replacing and/or become contaminated requiring disposal of same.
Furthermore, it would be beneficial to minimize the time associated with switching out the pump module should a failure occur.
Finally, it would also be beneficial to minimize the amount of time needed for a clinician or practitioner to check on the status of the device.
The present invention is directed to resolving these and other matters.
In one embodiment of the invention, the invention is directed towards a device for use with a negative pressure wound therapy bandage, the device having a controller module which includes a housing, a circuit board having a CPU and support electronics, a check valve, and, a pressure sensor. The device also includes a pump module including a pump and a power source. The pump module is preferably removably contained in the housing.
As used herein, “module” refers to a selection of components contained within, for example, a housing and configured to be connected with one or more other modules to create a fully functioning device. Moreover, as described herein, when the pump module is described as containing the pump (preferably, for example in a second housing), it is meant that the entire pump is contained within the pump module (or housing). This is in contrast to those prior art systems wherein a pump head is separated from the pump driving element, and each are contained within separate modules (or housings).
A device according to this and other embodiments of the invention is believed to provide numerous benefits.
First, such a device minimizes the amount of materials and components within the pump module. As previously stated, it is believed that the pump is the most likely structure to fail and/or become contaminated. Thus, such a device will allow for a new pump module to be inserted into the device when necessary, without having to dispose of the entire device.
Further, the disclosed pump module minimizes the amount of waste, particularly e-waste, by removing most of the electronics and other components from the pump module and disposing them in the controller module which can be reused while the pump module can be disposed.
Moreover, such a device provides substantial financial benefits as a company (e.g, a hospital, care center, nursing home, medical supplier, etc.) can maintain a large supply of pump modules compared with a small supply of controller modules. The pump modules can be disposed of easily, while the controller module is reused with a different patient, or for a different negative pressure wound therapy treatment. Thus, each failure and/or contamination of a pump does not require disposal of the entire device, and the loss of the investment associated with same.
Furthermore, in devices where the pump is separated into a pump head and pump driving elements, a satisfactory seal is required between the two pieces of the pump. A device such as described herein, does not require this additional type of seal to be formed in the pump each time the modules are connected. This eliminates the chances of this seal failing, becoming comprised, or otherwise requiring a user to confirm that a full seal has been made each time the pump head is replaced.
In another embodiment of the invention, the invention is directed to a device for use with a negative pressure wound therapy bandage, the device having a controller module, a pump module, and, a connector for connecting the controller module to the pump module, wherein the connector provides a physical connection and a pneumatic connection. It is preferred that the connector is a push button/quick release connector that is easily accessible in the controller module (i.e., partially exposed).
In this embodiment, the controller module and pump module may have the same configurations as discussed above. Alternatively, they may have different configurations.
A device according to this and other embodiments of the invention is also believed to provide numerous other benefits.
Such a device would minimize the amount of time and effort needed to change out the pump module from the controller module. Rather than taking apart the controller module, or removing screws, one need simply depress the connector (in the case of a push button/quick release type connector) to remove the pump module.
The quicker and easier removal of the pump module minimizes the amount of time needed to switch the pump module, and, thus, minimizes the amount of time that changing the module can interfere with the negative pressure wound therapy treatment.
In still another embodiment of the invention, the invention is directed to a device for use with a negative pressure wound therapy bandage, the device having a controller module including a housing and a visual indicator and a pump module. The visual indicator provides an indication of a status of the device at a distance greater than 5 feet, preferably 10-15 feet.
In this embodiment of the invention, the controller module and the pump module may include the configurations discussed above. Further, this embodiment may also include the connection discussed above.
A device according to this and other embodiments of the invention is also believed to provide numerous benefits.
Specifically, allowing for the visual indicator to indicate status to a person at least five feet away would save time and energy for an observer, such as a nurse in a nursing home or hospital, where the observer must check multiple devices in multiple rooms. Such a device will allow the observer to simply look in to each patient's room to determine the status of the device therein. Over many rooms with many patients, the time savings can add up to a substantial savings for the observer. Further, while an audible alarm could perform the same task, it is not desired to use such an indicator in an environment where noises can be distracting and interfere with patients and/or other people (for example, where patients are sleeping, have roommates, or where the noise would other wise disrupt and become a distraction).
One or more embodiments of the device may be disposed in a carrying case including a strap. The carrying case may be disposable to promote cleanliness. Moreover, the strap will allow the case, and thus the device, to be mounted, for example, on a bed, a wheelchair, or an IV stand. It is contemplated that the strap is adjustable so that the case may also be mounted on a patient's body (for example the belt) to allow the patient freedom to move around, and minimize the visual appearance of the device (which can create uncomfortable feelings for the patient).
A further embodiment of the present invention is directed towards a kit containing a device according to the present invention and a negative pressure wound therapy bandage. The kit may also include tubing to connect the device to the bandage. The bandage may, but is not necessarily required to, collect and store exudates within the bandage.
It is to be understood that the aspects and objects of the present invention described above may be combinable and that other advantages and aspects of the present invention will become apparent upon reading the following description of the drawings and detailed description of the invention.
FIG. 1 is a front schematic view of a device according to one or more embodiments of the present invention.
FIG. 2 is a back schematic view of a device according to one or more embodiments of the present invention.
FIG. 3 is a perspective exploded view of a device according to one or more embodiments of the present invention.
FIG. 4 a is a case for use with a device according to the present invention with a strap in a first configuration.
FIG. 4 b is a case for use with a device according to the present invention with a strap in a second configuration.
FIG. 4 c is a case for use with a device according to the present invention.
FIG. 5 is a kit according to the present invention.
While this invention is susceptible of embodiment in many different forms, there is shown in the drawings and will herein be described in detail one or more embodiments with the understanding that the present disclosure is to be considered as an exemplification of the principles of the invention and is not intended to limit the invention to the embodiments illustrated.
Reference throughout this description to features, advantages, objects or similar language does not imply that all of the features and advantages that may be realized with the present invention should be or are in any single embodiment of the invention. Rather, language referring to the features and advantages is understood to mean that a specific feature, advantage, or characteristic described in connection with an embodiment is included in at least one embodiment of the present invention. Thus, discussion of the features and advantages, and similar language, throughout this specification may, but do not necessarily, refer to the same embodiment.
As shown in the attached drawings, the present invention is directed towards a device 10 having a controller module 12 and a pump module 14.
The pump module 14 is preferably removably contained within the controller module 12 and more specifically within a housing 16 of the controller module 12, and most preferably slidably received in the housing 16.
In certain embodiments of the present invention, the device 10 includes a connector 18 which provides both a physical connection and a pneumatic connection. The physical connection functions to hold the pump module 14 in place. The pneumatic connection functions to allow for the communication of negative pressure from the device 10 to a negative pressure wound therapy bandage 100.
The connector 18 may include an interference fit, a snap fit, a friction fit, and any other connecting mechanism and structure so long as the connector 18 provide the necessary physical and pneumatic connection, while at the same time allowing for a relatively quick disconnection.
It is preferred that the connector 18 is partially exposed in the housing 16 so that it may be easily accessible. In a most preferred embodiment, the connector 18 is a quick release connector—wherein the connector 18 includes a button 20 disposed inside of the housing 16 of the controller module 12 that may be only partially exposed through an aperture 22 in the housing 16 of the controller module 12.
The controller module 12 may also include a circuit board 24 with a CPU and other support electronics, a check valve 26 and a pressure sensor 28—preferably all contained within the housing 16. The check valve 26 aides in maintaining pressure at the wound site. The pressure sensor 28 determines the negative pressure begin communicated to the wound site.
The controller module 12 may also include buttons 30 for allowing interaction and control of the device 10. For example the device 10 may be provided with three buttons 26: one for power; one to select and adjust settings; and, one to lock the device 10.
Further, in some embodiments of the present invention, the controller module 12 may also include one or more visual indicators 32, such as LEDs, through holes LEDs with a lens, other lighted icons/backlit LEDS, or other lights to indicate the status of the device 10. Preferably the visual indicator(s) 28 provide the status at a distance greater than 5 feet, preferably between 10-15 feet. This would allow the device 10 to provide indications to a clinician or other practitioner, for example, without requiring same to walk up to the device 10. The indicated status may include “off,” “on,” “pump mode on,” “leak detection,” “low battery detection,” “unknown error detection,” or any other status that may be considered relevant to provide relative to the use of the device 10 in providing negative pressure wound therapy.
Finally, the controller module 12 may also preferably contain tubes 34, pipes and joints 36 for communicating negative pressure from the device 10 to the appropriate structures (check valve 26, pressure sensor 28) of the controller module 12 and ultimately to a negative pressure wound therapy bandage 100.
Turning to the pump module 14, the pump module 14 may contain the pump 38 and a power source 40. The pump 38 provides the negative pressure used in the negative pressure wound therapy treatment. It is preferred that the device 10 is portable and does not require power from an outlet, and thus, the power source 40 may be batteries, for example, 3 AA batteries.
These structures of the pump module 14, as well as others, may be contained in a housing 42 of the pump module 14. The housing 42 is preferably received by the housing 16 of the controller module 12. Moreover, as mentioned, the pump module 14/housing 42 may be retained in the housing 16 of the controller module 12 with a connector 18.
One or more springs 44 may be positioned within the controller module 12 to aid in the removal of the pump module 14. As shown, the springs 44 may be configured such that they provide a force to move the pump module 14 out of the housing 16 of the controller module 12 such that if the connector 18 is disengaged, the pump module 14 is pushed out of the housing 16 of the controller module 12.
Further, both the pump module 14 and the controller module 12 may have complementary configured electrical connectors 46 for transmitting power from the power source 40 to the controller module 12, as well as to allow for communication between the pump 38 and CPU/electronics 24 in the controller module 12. For example, a 12 pin PCB connector may be utilized.
In this manner, negative pressure is created by the pump 38 and communicated through the connector 18 to the controller module 12. In the controller module 12, the negative pressure is communicated through a check valve 26 and a pressure sensor 28, via the pipes and joints 36. Finally, the negative pressure is communicated out of the controller module 12 (and device 10), for example, through a port 48, to a negative pressure wound therapy bandage 100.
It is contemplated that the device 10 is placed in case 200. See, FIGS. 4 a-4 c. Since the device 10 is intended to be used with multiple patients, albeit at different times, it is preferred that the case 200 be disposed of between patients. The case 200 may include a strap 202 to mount the device 10. The strap 202 may be adjustable to allow for the case and device to be mounted on a variety of different things, such as a belt, a bed, a wheelchair, an IV pole, etc. For example, during the day, the device 10 can be worn by a patient on a belt. Later in the evening, it can be mounted on a bed. If it is mounted on a bed, it is preferred that the device 10 include the visual indicator(s) 32 so that a practitioner or clinician need only see the device 10 from a distance to know its status.
Finally, it is further contemplated that the device 10 is provided in a kit 300 containing a negative pressure wound therapy bandage 100. Preferably the kit 300 includes tubing 102 to connect the device 10 (preferably through port 48) to, for example, a second port 104 on the bandage 100.
While various embodiments of the present invention have been described as used in association with a negative pressure wound therapy bandage that collects and stores exudates within the bandage, it will be appreciated by one of ordinary skill in the art that the embodiments of the present invention, if desired, can be used with an external collection device and a bandage that does not collect and store exudates in the bandage by utilizing a collection device (canister, flask, etc.) and additional tubing with connectors.
As discussed above, a device according to one or more embodiments of the present invention is believed to provide a number of advantageous and benefits in the field of providing negative pressure wound therapy.
It is to be understood that additional embodiments of the present invention described herein may be contemplated by one of ordinary skill in the art and that the scope of the present invention is not limited to the embodiments disclosed. While specific embodiments of the present invention have been illustrated and described, numerous modifications come to mind without significantly departing from the spirit of the invention, and the scope of protection is only limited by the scope of the accompanying claims.
wherein negative pressure from the pump is communicated through at least the check valve to the negative pressure wound therapy bandage.
3. The device of claim 1 wherein the pump module includes a housing and the pump and power source are contained within the housing of the pump module.
4. The device of claim 3 wherein the housing of the controller module slidably receives the housing of the pump module.
a connector for connecting the controller module to the pump module, wherein the connector provides a physical connection and a pneumatic connection.
6. The device of claim 5 wherein the connector includes a button release.
7. The device of claim 6 wherein the housing of the controller module includes an aperture and the button release is accessible through the aperture.
8. The device of claim 1 wherein the pump creates a negative pressure that is communicated to the controller module and out of the controller module though a port in the housing of the controller module.
9. The device of claim 1 wherein the controller module further includes at least one visual indicator that provides an indication of a status of the device at a distance greater than 5 feet.
10. The device of claim 9 further comprising a case removably receiving the device and having an adjustable strap capable of being mounted on a plurality of different items.
11. The device of claim 1 further comprising at least one spring in the housing of the controller module that provides a force on the pump module away from the controller module.
12. The device of claim 5 further comprising at least one spring in the housing of the controller module wherein when the connector is disengaged the at least one spring provides a force on the pump module to move the mump module away from the controller module.
14. The kit of claim 2 wherein the negative pressure wound therapy bandage collects and stores exudates within the bandage.
15. The kit of claim 2 further comprising tubing to connect the device to the negative pressure wound therapy bandage.
16. The device of claim 1 further comprising tubing to connect the device to the negative pressure wound therapy bandage.
17. The kit of claim 13 wherein the connector includes a button release.
18. The kit of claim 17 wherein the housing of the controller module includes an aperture and the button release is accessible through the aperture.
Achterberg, V., Ph.D., Hydroactive dressings and serum proteins: an in vitro study, Journal of Wound Care, February, vol. 5, No. 2, 1996 (pp. 79-82).
Argenta, Louis C., et al., "Vacuum-Assisted Closure: A New Method for Wound Control and Treatment; Clinical Experience", Ann Plas Surg 1997;38:563-577 (Dec. 10, 1996).
Biblehimer, Helen L., "Dealing With a Wound that Drains 1.5 Liters a Day," RN, Aug. 1986, pp. 21-23, USA.
Bier, A., Hyperemia as a Therapeutic Agent, Ed. Dr. Gustavus M. Blech, A. Robertson & Co., Chicago 1905, pp. 74-85.
Brubacher, "To Heal a Draining Wound", RN Mar. 1982, 7 pages.
Bucalo et al. "Inhibition of Cell Proliferation by Chronic Wound Fluid." Wound Repair and Regeneration, Miami, 1993, pp. 181-186.
Canadian Office Action for Canadian Application No. 2739605 dated Aug. 22, 2011 in 2 pages.
Chinese Office Action dated Aug. 29, 2008 for Patent Application No. 200480032101.1.
Chintamani, et al., "Half versus full vacuum suction drainage after modified radical mastectomy for breast cancer-a prospective randomized clinical trial", Research Article (Jan. 27, 2005), 1-5.
Chintamani, et al., "Half versus full vacuum suction drainage after modified radical mastectomy for breast cancer—a prospective randomized clinical trial", Research Article (Jan. 27, 2005), 1-5.
Costunchenok, BM, Effect of Vacuum on Surgical Purulent Wounds, Vestnik Chirurgia, 1986, 6 pages.
Davydov et al. "Pathogenic Mechanisms of the Effect of Vacuum Therapy on the Course of the Wound Process" pp. 43-46 (Dec. 1990).
Davydov, Yu A., et al., "Concepts for Clinical Biological Management of the Wound Process in the Treatment of Purulent Wounds Using Vacuum Therapy", The Kremlin Papers: Perspectives in Wound Care, Russian Journal: Vestnik Khirurgii, BlueSky Publishing, La Costa, California (2004), 15-17.
Davydov, Yu A., et al., "The Bacteriological and Cytological Assessment of Vacuum Therapy of Purulent Wounds", The Kremlin Papers: Perspectives in Wound Care, Russian Journal: Vestnik Khirurgii, BlueSky Publishing, La Costa, California (2004), 11-14.
Davydov, Yu A., et al., "Vacuum Therapy in the Treatment of Purulent Lactation Mastitis", The Kremlin Papers: Perspectives in Wound Care, Russian Journal: Vestnik Khirurgii, BlueSky Publishing, La Costa, California (2004), 5-7.
De Lange, M.Y., et al., "Vacuum-Assisted Closure: Indications and Clinical Experience", Eur J Plast Surg (2000) 2;178-182 (Feb. 9, 2000).
Dilmaghani et al., "A Method for Closed Irrigation and Suction Therapy in Deep Wound Infections," Journal of Bone and Joint Surgery, 1969, vol. 51-A, No. 2, pp. 323-342.
EPO, Office Action for EP App. No. 04 791 592.1 dated Jun. 12, 2008.
EPO, Second European Office Action for EP App. No. 04 791 592.1 dated Feb. 10, 2011.
Fleischmann, Vacuum sealing: indication, technique, and results, European Journal of Orthopaedic Surgery & Traumatology (1995), pp. 37-40.
Fleischmann, W. Wund Forum Spezial. IHW '94. "Vakuumversiegelung zur Behandlung von Problemwuden" (with English translation: Vacuum Sealing for Treatment of Problematical Wounds).
Garcia-Rinaldi, R., et al., Improving the Efficiency of Wound Drainage Catheters, Amer. Journ. of Surg., Sep. 1975, pp. 130, 372-373.
Hartz, R.S., et al., Healing of the Perineal Wound, Arch. Surg., Apr. 1980, 115, 471-474.
International Preliminary Report for International Application No. PCT/GB/2004/004549, dated Dec. 20, 2005.
International Search Report for International Application No. PCT/GB/2004/004549, dated Feb. 21, 2005.
Japanese Office Action dated Aug. 25, 2009 for Patent Application No. 2006-537411.
Japanese Office Action dated Dec. 15, 2009 for Patent Application No. 2006-537411.
Japanese Office Action dated Jan. 17, 2012 for Patent Application No. 2010-59188.
Japanese Office Action dated Jun. 22, 2010 for Patent Application No. 2006-537411.
Jeter, K.F., et al, "Managing Draining Wounds and Fistulae: New and Established Methods", Chronic Wound Care, pp. 240-246.
Johnson, F.E., An Improved Technique for Skin Graft Placement using a Suction Drain, Surgery, Gynecology and Obstetrics, Dec. 1984, 3 pages.
KCI Inc., If Its Not VAC Therapy, It's Not Negative Pressure Wound Therapy, Jan. 2005.
Khirugii, Vestnik, "A Collection of Published Studies Complementing the Research and Innovation of Wound Care", The Kremlin Papers, Perspectives in Wound Care, Russian Medical Journal, Vestnik Khirugii, Blue Sky Publishing (2004), 2-17.
Landes, R.R. and I. Melnick, An Improved Suction Device for Draining Wounds, Arch. Surg., May 1972, 104, p. 707.
Linden, Willem van der, et al, "Randomized Trial of Drainage After Cholecystectomy: Suction Versus Static Drainage Through a Main Wound Versus a Stab Incision", American Journal of Surgery, Feb. 1981, vol. 141, pp. 289-294.
Mcfarlane, R.M., The Use of Continuous Suction under Skin Flaps, Br. Journ. Plast. Surg., pp. 77-86.
Mclaughlan, J, et al, "Sterile Microenvironment for Postoperative Wound Care", The Lancet, Sep. 2, 1978, pp. 503-504.
Meyer, W. and V. Schmeiden, Bier's Hyperemic Treatment, Published 1908 W. B. Saunders Company, pp. 44-65.
Nakayama, Y, et al, "A New Method for the Dressing of Free Skin Grafts", Plastic and Reconstructive Surgery, Dec. 1990 pp. 1216-1219, UK.
NURSING75, Wound Suction: Better Drainage with Fewer Problems, Nursing, vol. 5, No. 10, Oct. 1975, pp. 52-55.
Office Action (Final) for U.S. Appl. No. 10/575,875, published as 2007/129,707, dated Jun. 17, 2009 in 19 pages.
Ramirez, O.M., et al., Optimal Wound Healing under Op-Site Dressing, Ideas and Innovations, 73(3), pp. 474-475.
Ranson, J. H. C., et al, "Safer Intraperitoneal Sump Drainage", Surgery, Gynecology & Obstetrics, Nov. 1973, vol. 137, pp. 841-842.
Search Report Dated Jan. 20, 2012 for PCT Appl. No. PCT/US2011/053707.
Solovev, V. A., et al., "The Method of Treatment of Immature External Fistulas in the Upper Gastrointestinal Tract-Guidelines" USSR Ministry of Health, S. M. Kirov Gorky State Medical Institute, 1987 (with English translation).
Solovev, V. A., et al., "The Method of Treatment of Immature External Fistulas in the Upper Gastrointestinal Tract—Guidelines" USSR Ministry of Health, S. M. Kirov Gorky State Medical Institute, 1987 (with English translation).
Solovev, V.A. "Treatment and Prevention of Suture Failures after Gastric Resection" (Dissertation Abstract) (S.M. Kirov Gorky State Medical Institute, Gorky USSR 1988).
Stewart, Joanne, Ph.D., World Wide Wounds—Next generation of products for wound management—2002 (13 pages).
Svedman, P., "Irrigation Treatment in Split-Thickness Skin Grafting of Intractable Leg Ulcers," Scand J. Plast. Reconst. Surg., 19:211-213, 1985.
Svedman, P., "Irrigation Treatment of Leg Ulcers," The Lancet, Sep. 1983, 532-34.
Svedman, P., A Dressing Allowing Continuous Treatment of a Biosurface, IRCS Med. Science: Biomed. Tech.; Clinic. Med.; Surg. and Transplantation, 1979, 7, p. 221.
Svedman, P., et al., "A Dressing System Providing Fluid Supply and Suction Drainage Used for Continuous or Intermittent irrigation," Annals of Plastic Surgery, vol. 17, No. 2, Aug. 1986, pp. 125-133.
Swift, et al, "Quorum Sensing in Aeromonas hydrophila and Aeromonas salmoncida: Identification of LuxRl Homologs AhyRl and AsaRl and Their Cognate N-Acylhomoserine Lactone Signal Molecules," J. Bacteriol., 179(17):5271-5281 (1997).
U.S. Appl. No. 10/599,720, filed Oct. 6, 2006, Blott et al.
U.S. Appl. No. 12/192,000, filed Aug. 14, 2008, Hartwell et al.
U.S. Appl. No. 13/287,897, filed Nov. 2, 2011, Adie et al.
U.S. Appl. No. 13/287,959, filed Nov. 2, 2011, Adie et al.
U.S. Appl. No. 60/559,727, filed Apr. 5, 2004, Richard Scott Weston.
U.S. Appl. No. 60/573,655, filed May 21, 2004, Richard Scott Weston.
Usupov, Y. N., et al., "Active Wound Drainage", The Kremlin Papers: Perspectives in Wound Care, Russian Journal: Vestnik Khirurgii, BlueSky Publishing, La Costa, California (2004), 8-10.
Venturi, Mark L., "Mechanisms and Clinical Applications of the Vacuum-Assisted Closure (VAC) Device", Am J Clin Dermatol (2005) 693, 185-194; Review Article (2005), 185-194.
Vijanto, J. and J. Raekallio, Local Hyperalimentation of Open Wounds, Br. J. surg., 1976, 63, 427-430.
Wackenfors, A., et al., Effects of Vacuum-Assisted Closure Therapy on Inguinal Wound Edge Microvascular Blood Flow, Wound Rep. Reg, 2004, 12, 600-606.
Webb, New Techniques in Wound Management: Vacuum-Assisted Wound Closure, Journal of the American Academy of Orthopaedic Surgeons, v. 10, No. 5, pp. 303-311, Sep. 2002.
Webster's Revised Unabridged Dictionary, published 1913 by C. & G. Merriam Co., definition of Flapper Valve, downloaded from Free Online Dictionary.
Wooding-Scott, Margaret, et al., "No Wound is Too Big for Resourceful Nurses," RN Dec. 1988, pp. 22-25 USA.
Wu, W.S., et al. Vacuum therapy as an intermediate phase in would closure: a clinical experience, Eur J Plast Surg (2000) 23: pp. 174-177.

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Application No. 61
Application No. 2739605
Application No. 200480032101
Application No. 2006
Application No. 2006
Application No. 2010
Application No. 2006
V.
V.
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Authors; Authors and affiliations. S. Burnside; S. Winkel; K. Brooks; V. Shklover; M . Gra¨tzel; A. Hinsch; R. Kinderman; C. Bradbury; A. Hagfeldt; H. Pettersson.
Guo Y, Brusniak L, Czech M, et al. Hybrid wing body ... Horne WC, Burnside NJ, Soderman PT, et al. Aeroacoustic ... Dickey ED, Princen NH, Bonet JT, et al. Wind tunnel ... In: Mueller, TJ (ed). Aeroacoustic .... Florence V Hutcheson and more.
Feb 28, 2013 ... Microsatellite analyses results indicated that the genotypes of all cloning piglets were identical ..... Zhou Q, Renard JP, Le Friec G, Brochard V, Beaujean N, et al. ... Zakhartchenko V, Mueller S, Alberio R, Schernthaner W, Stojkovic M, et al. ... Kasinathan P, Knott JG, Moreira PN, Burnside AS, Jerry DJ, et al.
State ex Rel. Townsend v. Mueller …The petition then alleges the filing by MacBride November 27, 1931, ... Sutton v. Anderson, 326 Mo. 304; Marsala et al. v. Marsala, 288 Mo. 501; Ewart v. Peniston ..... l.c. 504, 232 S.W. 1048; Burnside v .
v. BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Defendants . ... Plaintiff seeks a declaration of this Court that Article V of Sections A and B of the By-Laws of the Board of Curators of the University of Missouri, .... Mueller, Mo. ..... Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070; Burnside v.

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JUDY R. LARSON vs. RICHARD A. LARSON.
Present: ARMSTRONG, FINE, & LAURENCE, JJ.
A Probate Court judge had jurisdiction, pursuant to a separation agreement incorporated into, but explicitly surviving, the parties' divorce judgment, to enter civil contempt judgments against the husband for refusing to make financial support payments on behalf of an adult child who had attained the age of twenty-one, notwithstanding the husband's contention that, despite the agreement's bestowing jurisdiction on the Probate Court over disputes as to its meaning and application, the wife was precluded from relying on the agreement by the doctrines of claim preclusion [426-427], issue preclusion , and judicial estoppel [427-428] because she had waived her rights to child support pursuant to the agreement by allowing certain earlier litigation to proceed solely on the basis of the age provisions of G. L. c. 208, Section 28 [424-428].
COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on June 20, 1979.
Proceedings for contempt, commenced on May 29, 1990, and August 29, 1990, respectively, were heard by Edward M. Ginsburg, J., and motions for a new trial and for relief from judgment were also heard by him.
Edwin C. Hamada (Theresa Kelly Banash with him) for Richard A. Larson.
Stephen C. Maloney for Judy R. Larson.
(the agreement) incorporated into, but explicitly surviving, the parties' divorce judgment. [Note 1] Richard presents several arguments against the judgments and the judge's refusal to set them aside on his motions. All of them condense to a single proposition: that the Probate Court lacked jurisdiction to enter the judgments. Richard's position, however, is based upon a misreading of a prior opinion of this court and a misapplication of principles of res judicata and related doctrines. We, accordingly, affirm the judgments.
interpretation, application or performance of any provision of this [a]greement . . . shall be submitted to the Middlesex Probate and Family Court if the parties are unable to resolve the question by mutual agreement."
When the youngest child, Elizabeth, turned eighteen on April 1, 1987, Richard unilaterally decreased the amount of his monthly payments to Judy to one-twelfth of thirty percent of his annual gross earned income, which had by then been much diminished as a result of his voluntary reduction of the level of his medical practice. On August 24, 1987, Judy filed a complaint for contempt alleging that Richard's reduction in payments as of April 1, 1987, and each month thereafter violated the divorce judgment.
that Judy failed to satisfy one of the two statutory standards authorizing the court to order support for a child between the ages of eighteen and twenty-one, namely, whether Elizabeth was "principally dependent" upon her for maintenance. See Larson I, supra at 339-341.
The judge disagreed with Richard and found for Judy on the "sole question" whether Elizabeth was "principally dependent" upon her. Id. at 340. [Note 5] On the first appeal, in addition to criticizing the judge's application of G. L. c. 208, Section 28, Richard advanced a contention not made below: "that the judge erred in determining that Elizabeth was not `emancipated according to law' as provided in the separation agreement . . . [because] under Massachusetts law a child becomes emancipated upon attaining the age of eighteen years." Larson I, supra at 340.
This court, however, rejected Richard's belated new argument in Larson I. We observed that the case had been tried below solely on the theory of the applicability of G. L. c. 208, Section 28, reminded Richard of the settled principle that the theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review, and stated unambiguously that "[w]e, therefore, do not consider the question whether Elizabeth was emancipated as matter of law upon attaining the age of eighteen." Larson I, supra at 341. We affirmed the contempt judgment on the issue of principal dependency under G. L. c. 208, Section 28, and authorized Judy to file a petition for appellate costs and fees.
Richard, who had by that time left Massachusetts to reside in Maine, was personally served on June 13, 1990, with copies of the complaint and the summons, which ordered him to appear at the Probate Court at 9:00 A.M. on August 1, 1990. At some point in early June, 1990, Richard's then attorney also received copies of these documents from Judy's attorney.
Meanwhile, Judy, acting pursuant to the authorization of Larson I, supra at 343-344, had filed a petition with this court for counsel fees and costs in connection with the first appeal on May 24, 1990. Though given a reasonable time to respond to the petition, Richard failed to do so, and neither he nor his counsel appeared at the scheduled June 26, 1990, hearing on the petition. On June 26, 1990, Richard was ordered by this court to pay Judy $9,193.57 as counsel fees and costs on or before July 26, 1990. The order further provided that "[a]ny proceedings necessary to enforce payment are to be brought in the Probate Court." On July 27, 1990, Judy, having heard nothing from either Richard or his counsel, amended her complaint for contempt by adding claims for his failure to pay the fees and costs awarded by this court, as well as for his continued failure to make $2,600 payments for June and July, 1990.
On August 22, 1990, the judge held a hearing on Richard's motions. Richard appeared personally and by new counsel. His new attorney elaborated the lack of jurisdiction argument by propounding the theory that Judy was estopped by the prior proceedings to assert the applicability of the separation agreement, or to deny G. L. c. 208, Section 28, as the sole basis for the Probate Court's jurisdiction. Since that statute conferred power to make support orders only as to children between the ages of eighteen and twenty-one and since the parties' youngest child was concededly over twenty-one, counsel argued that Richard was entitled to relief or a new trial on the ground of "mistake of law . . . [namely] the entry of a judgment without jurisdiction. It is our position that under Section 28, this court cannot make an order for a [nondisabled] child over the age of twenty-one . . . ."
counsel regarding the events surrounding that counsel's late July request for a stipulated continuance. With all this in hand, the judge denied Richard's motions (later recalling that he simply did not believe Richard's explanation for his nonappearance). Richard took a timely appeal from the denials and from the August 1, 1990, contempt judgment on August 24, 1990.
Judy then filed a second complaint for contempt, on August 29, 1990, alleging that Richard had failed to pay $15,290.22 of the $27,083.79 due under the August 1, 1990, contempt judgment. This time Richard answered, repeating his contention that the court's August orders were void as matter of law for want of jurisdiction, and also filed a motion to stay all proceedings until the determination of his pending appeal. At a September 26, 1990, hearing on Judy's second complaint and Richard's stay motion, Richard's counsel reiterated his previous position that Judy "is estopped from denying it's anything but a [G. L. c. 208] Section 28 case, and that the case turned on the relatively narrow issue of whether you [the judge] exceeded your authority in ordering support for a child over the age of twenty-one."
The judge denied Richard's stay motion, adjudged him in contempt, and ordered him to pay Judy $18,590.22, an amount Richard conceded he was able to pay. [Note 9] Richard appealed from this judgment of contempt and obtained from a single justice of this court a stay of proceedings on both outstanding judgments pending resolution of his appeals.
a Probate Court judge has no authority under G. L. c. 208, Section 28, to make support orders for a child over twenty-one. He then insists that the court's only jurisdiction in this case was provided by that statute, leaving it without any basis to order support for a child such as Elizabeth.
Without citing or discussing Kotler v. Spaulding, 24 Mass. App. Ct. 515 , 517-520 (1987), Richard implicitly acknowledges that, where a divorce judgment provides by its terms for child support past the age of twenty-one, the Probate Court retains the power to enforce the provision through contempt orders. He contends, however, that the parties' agreement here is no longer a source of jurisdiction, despite its express bestowal of jurisdiction on the Probate Court over disputes as to its meaning and application. Judy is barred from resort to the agreement, he maintains, by the doctrines of claim preclusion, issue preclusion, and judicial estoppel. He asserts that Larson I operates as res judicata, precluding Judy from relying on the agreement, because she has waived her rights to child support pursuant to the agreement. The alleged waiver consisted of allowing the earlier litigation to proceed solely on the basis of G. L. c. 208, Section 28.
Richard's argument [Note 11] is without merit. The contention that Judy waived reliance on the agreement ignores the determinative fact that this appeal does not deal with the same claims, issues, or arguments as did Larson I. That decision announced, as emphatically as could be done, that it did not address the agreement, let alone consider the meaning or application of the term "emancipated according to law." Larson I, supra at 341.
a. Claim preclusion. This doctrine, traditionally known as merger or bar, prohibits the maintenance of any action based on the same claim that was the subject of and was decided in an earlier action between the parties or their privies. Heacock v. Heacock, 402 Mass. 21 , 23 (1988). Bagley v. Moxley, 407 Mass. 633 , 636-637 (1990). It has no application to the instant matter because the contempt judgments appealed from constituted new claims based on different facts from those at issue in Larson I.
for preclusion purposes, as with any contract calling for continuous separate performances over a period of time or for payment of money in separate installments. See Dunbar v. Dunbar, 180 Mass. 170 , 173 (1901), aff'd, 190 U.S. 340 (1903); Phelps v. Shawprint, Inc., 328 Mass. 352 , 356-358 (1952); 18 Wright, Miller & Cooper, Federal Practice & Procedure Section 4409, at 77-78 n.11 (1981); 4 Corbin, Contracts Sections 948, 949, & 956 (1951). Accordingly, the doctrine of claim preclusion cannot provide a basis for Richard's jurisdictional argument.
b. Issue preclusion. This modern term for collateral estoppel prevents relitigation of an issue of fact or law determined in an earlier action when the same issue arises in a later proceeding, even though based on a different claim, between the parties or their privies. Heacock, supra at 23 n.2. The central requirements are that the issue sought to be foreclosed was actually litigated and was essential to the decision in the prior action. See Cousineau v. Laramee, 388 Mass. 859 , 863 n.4 (1983); Moat v. Ducharme, 28 Mass. App. Ct. 749 , 753 (1990).
Neither of these prerequisites obtains here. Larson I dealt exclusively with the propriety and sufficiency of the judge's finding that Elizabeth was "principally dependent" upon Judy under G. L. c. 208, Section 28. No issue relating to the agreement was litigated or essential to the rulings in that prior action; indeed, they were expressly disavowed by both courts as a basis for their decisions. The prior action concerned Richard's support obligation to a child between eighteen and twenty-one; the present claim involves his obligation to a child over twenty-one. Issue preclusion has no application here.
c. Judicial estoppel. This term appears to describe the doctrine that a party who has maintained one position in a legal proceeding may not, in a subsequent proceeding between the same parties, assume a contrary or inconsistent position, at least when the prior position has been acted or relied upon by an adverse party. While this basic principle seems to be recognized in Massachusetts, see Brown v.
Quinn, 406 Mass. 641 , 646 (1990), application of the doctrine would be inappropriate here because Judy has not taken contrary positions in the two lawsuits. It is perfectly consistent for her to have argued, in the prior case, that Elizabeth was principally dependent upon her for support, as defined by G. L. c. 208, Section 28, and to argue, in the present action, that Richard remains bound to pay child support pursuant to the agreement. Cf. Turner v. McCune, 4 Mass. App. Ct. 864 , 865 (1976) (emancipation is not automatic upon reaching the age of majority). Compare Brown v. Quinn, supra at 646 (argument that an appeal was premature estopped because it contradicted party's earlier position that judgment appealed from was final). Until Elizabeth turned twenty-one, Judy in fact had no occasion or necessity to resort to the agreement, since G. L. c. 208, Section 28, provided a sufficient alternative basis to enforce Richard's support obligations.
In summary, Richard's res judicata arguments are inapposite. The Probate Court had ample sources of authority, including the agreement, to act on Judy's complaint, and its judgments were therefore not void for want of jurisdiction.
5. Costs and fees on appeal. Both parties have requested an award of counsel fees and costs in connection with this appeal. Richard's appeal having failed, he is not entitled to them. Yorke Mgmt. v. Castro, 406 Mass. 17 , 20 (1989). Richard has conceded his ability to pay any judgments issued and is in a financial position to defray the costs of this appeal superior to that of Judy, who has prevailed. Judy was awarded fees and costs not only for the first appeal but also for the two 1990 contempt proceedings in the Probate Court, which awards Richard does not here contest. Therefore, as in the prior appeal, Judy may submit to this court a motion for counsel fees within thirty days after issuance of our rescript, in accordance with the procedural requirements of Yorke Mgmt. v. Castro, supra at 20. See Larson I, supra at 343-344.
[Note 1] Richard filed two separate notices of appeal: one on August 24, 1990, from the August 1, 1990, contempt judgment and the August 22, 1990, denials of his motions for new trial and relief from that judgment; and the other taken on September 28, 1990, from a judgment of contempt entered September 26, 1990. The Probate Court combined the two appeals in its assembly of the record, and both appeals were entered as one case on the docket of this court.
[Note 2] By January, 1987, the monthly payments had been adjusted upward, by a formula in the agreement, to $2,600, where they appear to have remained as of the date of this appeal.
[Note 3] General Laws c. 231, Section 85P, as inserted by St. 1975, c. 315, Section 1, declares that any person eighteen years old "shall for all purposes . . . be deemed of full legal capacity . . . . " General Laws c. 4, Section 7, cl. fifty-first, defines "age of majority" as eighteen years of age. Neither party has cited to these statutes. No statute appears to define "emancipation." It is clear that there is no fixed age when emancipation occurs; it does not automatically occur on reaching the age of majority. Turner v. McCune, 4 Mass. App. Ct. 864 , 865 (1976).
[Note 4] General Laws c. 208, Section 28, as amended through St. 1976, c. 279, Section 1, provides, in pertinent part, that "[t]he court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance."
[Note 5] The judge found Richard in contempt on September 30, 1988, and ordered him to pay Judy $33,524.29, consisting of $24,674.00 in arrears, $3,284.55 in interest, and $5,565.74 in costs and attorneys' fees.
[Note 6] Richard had additionally failed to make a payment for the month of October, 1988, which Judy also sought in her May 29, 1990, complaint.
[Note 7] This amount represented $24,793.57 in arrears, $268.57 in interest, and $2,021.65 in attorneys' fees.
[Note 8] Judy's attorney had been willing to assent to a continuance of the August 1 hearing on the condition that Richard pay the undisputed amounts he owed Judy (the $2,600 for October, 1988, support and the $9,193.57 in fees and costs for Larson I) on or before August 1, 1990. No agreement ensued because Richard failed to make those payments as requested, although he did pay them at the August 22, 1990, hearing on his motions.
[Note 9] The components of this sum were the $15,290.22 from the August 1, 1990, judgment, plus a $2,600 payment for September, 1990, and $700 for attorneys' fees. Judy's counsel had sought $2,944.10 in attorneys' fees and costs.
[Note 10] Richard does not argue here what would objectively appear to be the only substantial point to be litigated in this case, namely, whether he should be relieved of his support obligation because Elizabeth has become "emancipated according to law"; nor does he assign as error anything done by the judge that rejected such an argument or prevented him from making such an argument below. Instead, he asserts that, "[b]ecause the original contempt [in Larson I] was pre-tried, tried and decided on appeal as a Section 28 proceeding, traditional views of emancipation and the factors employed to determine whether it has occurred were not then and are not now applicable to the facts of the case." Both Judy's May 24, 1990, contempt complaint and July 27, 1990, amended contempt complaint alleged the continued applicability of Richard's obligation to make monthly support payments "until the youngest child is emancipated according to law." Although Richard was not deemed to have admitted these averments by his failure to deny them in a responsive pleading (there is no rule in the domestic relations rules corresponding to Mass.R.Civ.P. 8(d), 365 Mass. 750 (1974); see Kindregan & Inker, Family Law & Practice Section 184, at 267 ), and although Richard's September 24, 1990, answer did deny the same allegation contained in Judy's August 29, 1990, contempt complaint and averred further that "the claim for child support is barred by the child's emancipation and her having obtained the age of 21," he did not, as noted above, subsequently press or argue this point, but rather appears to have expressly abandoned it.
[Note 11] Richard did not affirmatively set forth estoppel or res judicata as defenses in his answer to Judy's August, 1990, contempt complaint, as required by Mass.R.Dom.Rel.P. 8(c) (1975); nor did he raise them in arguing against the judgment on her May, 1990, contempt complaint or her July, 1990, amended contempt complaint, which he never answered, contrary to Mass.R.Dom.Rel.P. 7(a) & 8(b) (1975). The judge nonetheless allowed Richard to present his jurisdictional argument during the hearings below, without objection from Judy, so the failure to plead was not fatal. Compare Brash v. Brash, 407 Mass. 101 , 104 n.4 (1990); Davidson v. Davidson, 19 Mass. App. Ct. 364 , 368 n.3 (1985). In any event, since the issues may recur as to future monthly payment obligations, we would choose to discuss them in the interest of judicial economy.
[Note 12] Since each monthly payment obligation under the agreement gives rise to a separate claim, see the discussion in part 3a, supra at 11-12, Richard remains free to raise any arguments he may have against enforcement of that agreement in a future proceeding, including whether Elizabeth has become "emancipated according to law." This court is unable to make such a determination on the present record, because the issue was not briefed or argued either before the Probate Court or on appeal.

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text: SLATHAR v. SATHER TRUCKING CORPORATION, 78 F.3d 415 (8th Cir. 1996) DONALD A. SLATHAR, APPELLANT/CROSS-APPELLEE, v. SATHER TRUCKING CORPORATION, AN IOWA CORPORATION; SATHER'S, INC., A DELAWARE CORPORATION, APPELLEE/CROSS-APPELLANT. Nos. 95-1864, 95-2003. United States Court of Appeals, Eighth Circuit. Submitted December 13, 1995. Decided March 15, 1996. Page 417 Appeal from the United States District Court for the District of Minnesota. Counsel who presented argument on behalf of the appellant was Michael Albert Pinotti of St. Paul, Minnesota. John E. Thomas appeared on the brief. Counsel who presented argument on behalf of the appellee was William G. Trumpeter of Chattanooga, Tennessee. Karen M. Smith appeared on the brief. Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges. JOHN R. GIBSON, Circuit Judge.  Donald Slathar appeals the judgment entered following an adverse jury verdict in his Age Discrimination in Employment Act claim, 29 U.S.C. Ãƒâ€šÃ‚Â§ 621-634 (1994), alleging he was wrongfully terminated because of his age. Slathar argues that the district court[fn1] erred by (1) instructing the jury on business judgment, (2) not allowing a former Sather's human resource manager to testify, and (3) refusing to strike part of the company's closing argument. We affirm.  Slathar was born in January 1935. He began working for Powell's Candies, Inc., a candy manufacturer, in 1976. Slathar's duties included supervising maintenance in the facility, keeping the equipment running, designing equipment, and plant engineering.  In November 1991, Sather's purchased the Powell's facility. Shortly thereafter, the company began restructuring the Powell's organization to more closely reflect Sather's Page 418 organizational structure. Powell's maintenance department had always designed and built equipment in-house. In contrast, Sather's policy was to purchase equipment on the open market.  In January 1992, Sather's informed Slathar that he was being terminated in March. The company claimed Slathar's position as a design engineer was no longer needed, and his position was being eliminated. Slathar believed he was being fired because of his age, and replaced as maintenance supervisor by Ricky Vos, a Sather's employee in his thirties, who was transferred to the former Powell's facility to serve as Maintenance General Foreman.  Slathar sued Sather's. Following the pre-trial conference the district court dismissed Sather Trucking as a defendant and dismissed Slathar's tortious interference claim. The jury returned a special verdict on Slathar's Age Discrimination in Employment Act claim, finding that Slathar's age was not a determining factor in the company's decision to discharge Slathar. Based on the verdict, the district court made a finding of fact in Slathar's Minnesota age discrimination claim that the company did not discriminate against Slathar on the basis of age. The court entered judgment against Slathar and he appeals. I.  Slathar argues that the district court erred by instructing the jury on business judgment. He contends this instruction increased his burden of proof and materially misstated the law. He also argues that it was error to refuse to instruct the jury that if it found he was discharged because of his pay, they could consider that his pay was tied to his experience and age.  The district court instructed the jury that they must find for Slathar if age was a determining factor in his termination, and age is a determining factor only if the company would not have terminated Slathar but for his age. The court went on to instruct that an employer has the right to make business decisions, absent intentional age discrimination, "even if the factor motivating the decision to terminate is typically correlated with age; such as pension status, salary or seniority." The court submitted special interrogatories to the jury, and the jury specifically found that age was not a determining factor in Slathar's discharge.  "We review the district court's formulation of jury instructions for abuse of discretion. We must determine whether the jury instructions, taken as a whole, fairly and adequately submitted the issues in the case to the jury." Transport Ins. Co. v. Chrysler Corp., 71 F.3d 720, 723 (8th Cir. 1995) (citations and internal quotations omitted). "[T]he form and language of jury instructions are committed to the sound discretion of the district court so long as the jury is correctly instructed on the substantive issues in the case." Walker v. AT & T Technologies, 995 F.2d 846, 849 (8th Cir. 1993) (quoting Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir.), cert. denied, 506 U.S. 1014 (1992)).  "The ADEA is not intended to be used as a means of reviewing the propriety of a business decision." Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir.), (quoting Jorgensen v. Modern Woodmen of Am., 761 F.2d 502, 505 (8th Cir. 1985)), cert. denied, 115 S.Ct. 355 (1994). In Walker, 995 F.2d at 849, we held that, on the record there before us, the employer was entitled to have the jury instructed "that an employer may exercise business judgment in making personnel decisions." An employer has the right to make business decisions, so long as they are made in a nondiscriminatory manner. See Walker, 995 F.2d at 849-50.  Even if Slathar was terminated because of his high salary, age discrimination cannot necessarily be inferred. See Bialas v. Greyhound Lines, 59 F.3d 759, 763 (8th Cir. 1995). Slathar's "status as an experienced and thus higher paid employee [ ] does not in itself permit an inference of age discrimination." Serben v. Inter-City Mfg. Co., 36 F.3d 765, 766 (8th Cir. 1994) (per curiam), cert. denied, 115 S.Ct. 1402 (1995). Age discrimination may exist when an employer terminates an Page 419 employee based on a factor such as experience or salary when the employer presupposes a correlation with age and uses that factor as a proxy for age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 612-13 (1993). However, a decision to terminate an employee solely because of salary or length of service is not age discrimination. Id. at 611. Age and these other factors are analytically distinct. Id.  Relying on St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), Slathar argues that the court's instruction confused the substantive issues that the jury was supposed to decide, somehow injecting procedural issues into the jury's decision and effectively increasing his burden of proof. St. Mary's Honor Center, 113 S.Ct. at 2746, was a Title VII case tried to the court. The Court's discussion of McDonnell Douglas burden shifting offers no support for Slathar's argument. Reading the instructions as a whole, it is evident that the jury's consideration was directed to whether age was the determining factor in the decision to discharge Slathar, and Slathar had the burden of proving that he was discharged because of his age. While the instruction dealt with business judgment, pension status, salary, and seniority, the instruction plainly stated the ultimate issue for the jury's determination. See Walker, 995 F.2d at 849; Hazen Paper Co., 507 U.S. at 611-613. The district court did not abuse its discretion by giving the proffered instruction.  Furthermore, the district court did not abuse its discretion by refusing to instruct the jury that if it found that Slathar was discharged because of his pay, it could consider that his pay is tied to his experience and age. In proposing this instruction, Slathar misconstrues the Court's statement in Hazen Paper Co., 507 U.S. at 612-13, which noted that age discrimination may exist when an employer uses another factor as a proxy for age. The Age Discrimination in Employment Act requires that an employer not discriminate based on age. It does not require an employer to ignore an employee's other characteristics. The ultimate test is whether the company discriminated against Slathar because of his age, and the district court properly instructed the jury on this question. II.  Slathar next argues that the district court should have admitted the testimony of Anita Darnell, a former human resources manager at Sather's, regarding a phone conversation she had with Douglas Pendgraft, the Sather's Corporate Director of Personnel. Darnell said that she did not participate in the decision to terminate Slathar. Upon learning that Slathar had been terminated, Darnell telephoned Pendgraft and informed him that she believed terminating Slathar was a risky decision because Slathar was in a protected group based on his age and perhaps his disability. Pendgraft responded "that Sather's would take care of it." The district court refused to allow Darnell's testimony on this subject, finding it was irrelevant under Federal Rule of Evidence 401 because Darnell had not participated in the employment decision, the conversation took place after the decision to terminate Slathar had been made, and it amounted to nothing more than her opinion regarding the company's potential exposure. Further, the court found that the value of the proposed testimony was far outweighed by its prejudicial impact. See Fed.R.Evid. 403.  "Admission of evidence is a matter for the district court's discretion and we will defer to the district court's ruling absent an abuse of discretion." Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir. 1990). Stray remarks and statements by nondecisionmakers are not direct evidence of discriminatory motive. See Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). Darnell's testimony that she told a senior manager that Slathar was in a protected class is not evidence of discrimination. See Bashara v. Black Hills Corp., 26 F.3d 820, 823-24 (8th Cir. 1994) (holding that human resources manager's expression of concern over possible age discrimination claim was the "equivalent of a stray remark" and did "not constitute evidence of discriminatory animus"). Page 420  Darnell was not involved in the decision to terminate Slathar, and she did not offer her opinion of the decision until after it had been made. Pendgraft's response is much too ambiguous to be considered any sort of admission by company management, and it is not evidence of discriminatory intent.  The impact of Darnell's testimony would have been quite prejudicial. "Although it had no direct bearing on the issue to be decided . . . this testimony embellished the circumstantial evidence directed to that issue by adding `smoking gun' type evidence," the opinion of a company manager. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988). Such prejudice substantially outweighs any probative value the proposed testimony might have. The district court did not abuse its discretion by excluding Darnell's testimony. III.  Slathar contends that the district court erred by not striking a portion of the company's closing argument. Addressing the issue of damages and referring to the testimony of Slathar's expert Varns, the company argued: [L]adies and gentlemen, you'll recall Mr. Varns stated Mr. Slathar drew nine to eleven weeks of unemployment compensation. He worked 46 out of the 52 weeks that year, and yet he's drawing unemployment compensation, making $21.00 an hour, 32 to 40 hours a week. Take a look at the exhibit when you get back there. Ladies and gentlemen, that's a fraud against the State.  The district court overruled Slathar's objection to this argument. Slathar now argues that we should grant a new trial because this argument was based on evidence not contained in the record.  "[C]losing arguments are made under the direct control of the trial court. We will not disturb the court's ruling unless an abuse of discretion occurred. To constitute reversible error, statements made in closing argument must be plainly unwarranted and clearly injurious." Pearce v. Cornerstone Clinic for Women, 938 F.2d 855, 859 (8th Cir. 1991) (citations omitted).  The company's argument addresses both damages and Slathar's credibility as a witness. Both parties argue the substantive issue of whether Slathar violated Minnesota law and actually committed fraud on the state. Whether Slathar committed fraud on the state is certainly not a question for us to decide here, and it was not an issue for the jury in this age discrimination case. Counsel's conclusion that Slathar committed a fraud against the state, in our view, exceeds the bounds of zealous advocacy.  However, the district court instructed the jury several times that statements of counsel were not evidence in the case. Further, in denying Slathar's motion for a new trial, the court stated that the comment of defense counsel "was clearly not outcome determinative." We cannot conclude that this one sentence in the midst of the entire trial is so egregious as to warrant reversal. See Moses v. Union Pac. R.R., 64 F.3d 413, 417 (8th Cir. 1995) (holding that "[a]lthough we strongly disapprove of defense counsel's closing argument, we decline to reverse because plaintiff has failed to make a showing of prejudice").  We affirm the decision of the district court. Because we affirm, we need not reach the issues raised in the company's cross appeal. [fn1] The Honorable Donald D. Alsop, Senior Judge, United States District Court for the District of Minnesota.

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myLoc will confirm receipt of the order to the Customer by email (confirmation of receipt). As a rule, the confirmation of receipt does not yet represent a binding acceptance of the contractual offer by myLoc. Rather, the acceptance of the offer takes place either by means of a separate notification by myLoc (contractual confirmation) or by means of myLoc recognisably commencing the provision of services to the Customer. In addition, the sending of an invoice or other payment request by myLoc shall represent an acceptance of the offer. The sending of an invoice or payment request can take place at the same time as the confirmation of receipt. In such a case, the confirmation of receipt is also the contractual confirmation.
As a rule, a customer who is a consumer (see § 3) has a statutory right of revocation. A customer who is not a consumer is not entitled to this right of revocation. myLoc shall inform the Customer separately of the right of revocation. However such a notification of a right of revocation does not represent a contractual right of revocation in relation to a customer who is not a consumer.
All price statements by myLoc in relation to private customers (see § 3), in particular those on the myLoc website, shall be considered to be end prices inclusive of the statutory value added tax, should this be payable. By contrast, price statements by myLoc which are obviously intended for commercial customers (see § 3) are net in case of doubt, i.e. excluding value added tax; therefore value added tax will be added to the stated prices, should this be payable (gross). Additional costs, i.e. those which are not stated in the order overview or the order/contract form, shall not as a rule be incurred in connection with the order.
In case of doubt, the payment of one-off fees shall be made at the time of conclusion of the contract. The payment of recurring fees is due monthly in advance. Invoicing shall take place via email to the address stated by the Customer. A fee of EUR 3.50 per invoice shall be payable if invoices are sent by post, which myLoc only carries out upon request by the Customer. Invoicing is not necessary for the Customer to enter default. This does not apply in relation to the value added tax to be charged in the invoice if the Customer is entitled to deduct input tax. If the Customer enters payment default, myLoc shall be entitled, in accordance with the statutory regulations, to withhold the further provision of services. In particular, this means that myLoc can shut down the Customer’s Internet pages, cease to make the data stored on the servers available and no longer renew domains. Further rights of myLoc shall remain unaffected.
Objections which concern use-dependent fees in the invoices (for example for traffic) must be raised by the Customer within an exclusion period of six weeks following the receipt of the respective invoice. Otherwise, the invoicing of the said fees shall be deemed to have been approved by the Customer. This shall not apply, if myLoc acts fraudulently during the invoicing process or has not informed the Customer of the exclusion period once again in the invoice.
Unless otherwise agreed, the payment shall be made cash free via SEPA transfer to the business account of myLoc. If the payment is made by direct debit or credit card, the Customer must ensure there are sufficient funds in the relevant account. If it is not possible to collect a direct debit or to charge the credit card (return of payment), the Customer is obliged to pay fixed compensation of EUR 10. This shall not apply if the Customer is not responsible for the return of payment. Otherwise, the Customer is free to provide proof that no loss was incurred by myLoc or that the loss is significantly lower than the fixed amount. Conversely, myLoc is entitled to provide proof of a higher loss.
The term of the contract shall correspond to the period of time which is stated in the service description and/or the period of time which the Customer selected at the time of its order (minimum term). In the case of contracts in relation to a domain, the minimum term is generally one year. If the contract is not terminated or is not terminated in line with the notice period, it shall be extended each time by the minimum term, however for no more than one year (automatic contract extension). Unless otherwise agreed, the notice period for contracts with a minimum term of up to one year shall be 4 weeks and for contracts with a minimum term of one year or more, the notice period shall be 3 months.
As a rule, termination is required in text form (e.g. letter, fax, email). However, if the Customer is a commercial customer (see § 3), termination is required in written form (i.e. as text form but including a signature), whereby transfer of the signed declaration by telecommunication shall suffice.
The right to terminate this contract prematurely for cause shall remain unaffected. In particular, cause exists for myLoc if the Customer is in default for an amount of one monthly payment for more than 4 weeks or in default for a lesser sum for more than 6 weeks. Cause for premature termination also exists for myLoc if the Customer significantly or repeatedly breaches other obligations under the contract, in particular following a warning by myLoc.
The Customer is aware that the expenses and costs for the provision of storage space, servers or parts thereof will be included in the fee and minimum term. The Customer is also aware that the expenses and costs of myLoc in the case of domains are almost exclusively incurred due to their registration and extension. If a contract whose minimum term has not yet been reached is terminated prematurely for cause by myLoc, the Customer must pay 50% of the fee which would have been payable until the time the minimum term was reached. If this involves the fee for a domain, the full amount up to the actual end of the term is due, regardless of whether the minimum term of the contract has already been reached. This shall not apply if the Customer is not responsible for the cause for which myLoc terminates the contract prematurely. Otherwise, the Customer is free to provide proof that no loss has been incurred by myLoc or that the loss is significantly lower than the calculated amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
At the end of the contract, myLoc will block the Customer’s login data and suspend the contractual services. This means that web pages, emails and other data which the Customer has saved on the myLoc servers will be deleted. The Customer’s Internet domains will no longer be extended. This means that they will expire and will be deleted or returned to the competent registration body. The Customer is aware that the respective domain may be permanently lost if a third party registers this following the deletion or return.
However, prior to the end of the contract, the Customer has the option of transferring its domains to another provider (transfer). If a domain is transferred to another provider, the Customer shall apply to myLoc for this in good time in text form, i.e. at the latest two weeks prior to the end of the contract. The Customer is aware that the co-operation of the Customer and/or the other provider is necessary for the transfer of a domain, depending on the requirements of the respective registration body. If this co-operation does not take place or does not take place in good time, with the result that the domain remains with myLoc beyond the end of the term, the domain will be charged to the Customer for a further year. This shall not apply if the Customer is not responsible for the lack of timely co-operation. Otherwise, the Customer is free to provide proof than no loss has been incurred by myLoc or that the loss is significantly lower than the calculated amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
Login data (such as user name and password) which the Customer receives from myLoc shall be kept confidential by the Customer and shall be protected against third party access. The Customer shall be responsible for all actions carried out under the said login data. This shall not apply if the respective action was carried out by an unauthorised third party without the Customer being responsible for such, in particular where the Customer has complied with its confidentiality and protection obligation in a proper manner.
Prior to saving all data which it stores on the myLoc servers, the Customer shall make a back-up copy. Data which is altered on the myLoc servers or which is initially created there shall also be backed up by the Customer at regular intervals. The backups themselves may not be stored on the myLoc servers.
In the case of a co-location contract where the Customer sets up its own hardware in the myLoc IT centre, the Customer shall issue myLoc with a contractual right of lien in relation to the hardware which has been set up. The purpose of the lien is to secure the claims of myLoc against the Customer under the contract. The Customer is aware that the hardware which has been set up is not insured by myLoc. To this extent, the Customer is responsible for taking out any insurance. In all cases, the Customer shall take out liability insurance which covers personal injury, property damage and financial losses caused by the Customer or its hardware in the myLoc IT centre with a sum insured of at least EUR 1 million (one million euros). On myLoc’s request, the Customer shall provide proof of the existence of the said insurance. The Customer is solely responsible for the maintenance of its hardware.
Except in the case of co-location, myLoc is entitled to carry out changes to the server configuration, if these become necessary from a technological or legal point of view or are otherwise required due to technological progress. However, such an alteration shall not limit the contractual scope of service. myLoc shall inform the Customer in good time of pending alterations, if these have noticeable effects on the Customer. The Customer is obliged to carry out alterations on its part which become necessary, provided that this is reasonable.
The Customer is only able to have physical access to the servers in the myLoc computer centre in the case of co-location. Access is limited to the Customer’s hardware, whereby the Customer shall agree on a date and time with myLoc in advance. At the time of agreeing on the date and time, the persons who are to have access to the hardware for the Customer must be named. The persons must be able to verify their identity by means of official photo ID.
In the case of co-location and server hosting, the Customer is solely responsible for the installation and configuration of the operating system, the server services and other software. In the case of managed hosting, the Customer will be provided with a system which has been pre-configured by myLoc. However, the Customer is also solely responsible for the installation and configuration of additional services and other software.
myLoc shall provide the Customer with licences for Microsoft software, in particular for Windows Server, by means of a framework agreement with Microsoft for multiple licences (volume licence contract), if the Customer uses myLoc hosting services and the provision of such software for use on the server has been agreed upon. The Customer hereby assures myLoc that it will comply with the licence conditions for the use of the software. In particular, this includes the Customer only purchasing licences for the use of Microsoft software on the server via the myLoc volume licence contract. The Customer shall not use any unlicensed software or software which has not been properly licensed on the server. If the Customer breaches the licence conditions, it must reimburse myLoc in respect of the losses incurred as a result. myLoc is entitled to monitor compliance by the Customer with the Microsoft licence terms. For this purpose, the Customer shall provide myLoc with access to an administrative server which myLoc will use exclusively for the said monitoring. To this extent, myLoc is entitled in particular to permanently and automatically monitor the licence information concerning Microsoft software on the server by means of corresponding client software. If the Customer refuses to provide access or if the Customer disrupts the monitoring by the client software, this shall represent cause for premature termination by myLoc.
The Customer is aware that myLoc will not monitor the use of the server by the Customer, in particular the contents published by the Customer. myLoc will also not check prior to the registration of a domain ordered by the Customer as to whether the said domain affects third party rights. To this extent, the Customer shall reimburse myLoc for all third party claims which arise due to unlawful use of the server or use of the server which is in breach of contract by the Customer or of a domain ordered by the Customer. The Customer shall reimburse myLoc to the necessary extent in relation to the costs incurred in connection with the defence of the rights.
The Customer shall not publish any unlawful content or otherwise use the server in an illegal manner. The publication of content which is racist, glorifies violence or contains adult content shall also be deemed to be unlawful. In the case of an obvious or proven legal breach, myLoc is entitled to prohibit the use of the unlawful server by the Customer (blocking) or to disable the unlawful domain and return it to the registration body, if necessary. If the legal breach is not obvious or proven, myLoc shall ask the Customer to make an immediate statement. If this statement is not made or if the Customer is not able to rebut the alleged legal breach, myLoc is entitled to the same rights as in the case of an obvious or proven legal breach.
The sending of promotional emails without the express consent of the respective recipient (spam) is prohibited. The automated or mass sending of promotional messages in Internet forums or chatrooms is also deemed to be prohibited spam. For each case of a culpable breach of the prohibition of spam, the Customer must pay a contractual penalty to myLoc, the amount of which will be determined at the reasonable discretion of myLoc, whereby the setting of the contractual penalty can be verified by a court. myLoc is also entitled to carry out a blocking.
If the server used by the Customer noticeably impair the functionality, security or availability of myLoc’s infrastructure or significantly endanger it, myLoc shall also be able to carry out a blocking for the duration of the impairment or endangerment.
Where possible, myLoc shall warn the Customer in advance of a blocking; otherwise it shall inform the Customer of the blocking in a timely manner. No warning is necessary if the Customer has intentionally caused the reason for the blocking. If the Customer provides a remedy, myLoc will not carry out the blocking or will lift it. In relation to the expenses in connection with a blocking, myLoc will charge the Customer a fixed fee of EUR 49.00. This shall not apply if the Customer is not responsible for the reason for the blocking. Otherwise, the Customer is free to provide proof than no loss has been incurred by myLoc or that the loss is significantly lower than the fixed amount. Conversely, myLoc is entitled to provide proof of a higher loss. Further rights of myLoc shall remain unaffected.
myLoc hereby guarantees to the Customer an average annual availability of 99.0%. The router which connects the myLoc computer centre to the Internet shall be decisive in relation to availability (time of handover). Both disruptions to the Internet and such downtime for which myLoc is not responsible (for example force majeure) are excluded from the guarantee concerning availability. In addition, myLoc is entitled to use 1% of the availability each month for maintenance work, without this being deemed to represent a reduction of availability. Such maintenance work shall be notified to the Customer in advance where possible and carried out at night between 10 p.m. and 6 a.m.
The Customer is aware that myLoc will only forward the data concerning the registration of a domain to the competent registration body following a request by the Customer. The forwarding shall take place by means of an automated process, whereby the question as to whether the domain is finally assigned to the Customer or not is outside myLoc’s sphere of influence. To this extent, myLoc cannot provide any guarantee concerning the allocation of an ordered domain. The same shall apply to the existence of a domain, unless myLoc is responsible for this.
Otherwise, the statutory provisions shall apply. The limitation of liability in accordance with § 11 shall also apply to the obligation to pay damages due to defects.
myLoc shall incur unlimited liability in the case of intent and gross negligence, for injury to life, body and health, in accordance with the regulations of the German Product Liability Act (Produkthaftungsgesetz ? ProdHG), in accordance with Section 44a of the German Telecommunications Act (Telekommunikationsgesetz ? TKG), as well as to the extent of any assurances made or any guarantees assumed by myLoc.
In the case of a breach of an essential contractual obligation due to simple negligence, myLoc’s liability shall be limited to losses which are foreseeable and typical in accordance with the type of transaction in question. Essential contractual obligations are those which enable the proper fulfilment of the contract and on whose compliance the Customer may regularly rely.
Otherwise myLoc’s liability to pay compensation shall be excluded, regardless of legal reason. There is no strict liability to pay damages for initial defects. This shall also apply to the personal liability of myLoc’s legal representatives, employees and vicarious agents.
myLoc complies with the statutory regulations concerning data protection. myLoc only processes the Customer’s personal data in order to perform the contract. This concerns such personal data which the Customer provides to myLoc during the order, via the customer centre or otherwise within the performance of the contract (in particular: name, address and email address). Alongside processing, myLoc is entitled to pass on the Customer’s personal data to third parties if this is necessary in order to perform the contract (for example to the bank for payment processing).
The Customer can ask myLoc at any time to disclose, correct, delete, restrict processing of its personal data and to make it portable to another provider. However deletion cannot take place if the Customer’s personal data is still required in order to perform the contract or if statutory retention obligations prevent this. However where possible, the data will be blocked prior to deletion. Following the full performance of the contract and provided that statutory retention obligations no longer prevent this, myLoc will also delete the Customer’s personal data.
Further use of the Customer’s personal data will only be made if the Customer has provided its express consent to such use. Reference is also hereby made to the data protection declaration in relation to the processing of personal data when using the myLoc website. This can be accessed via the website.
Even if individual clauses are legally invalid, the contract shall otherwise remain binding in relation to its other provisions. Where available, the statutory regulations shall take the place of the invalid clauses. However, if this would present undue hardship for one of the contracting parties, the contract as a whole shall become invalid.
If the Customer is a businessman, legal person under public law or a public law special fund, Düsseldorf is hereby agreed as the exclusive place of jurisdiction for all claims which arise under or on the basis of the contract. The same shall apply in relation to persons who do not have a general place of jurisdiction in Germany, who relocate their place of residence or usual whereabouts to a country outside of Germany following the conclusion of the contract or whose place of residence or usual whereabouts are not known at the time proceedings are brought.
The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention governing the International Sale of Goods. If the Customer is a natural person and if the Customer concludes the contract for purposes which cannot primarily be attributed to his or her commercial, business, craft or professional activities, the mandatory consumer protection provisions of the country in which the Customer is usually resident shall, nevertheless, remain applicable.
The Customer can only offset against myLoc such claims to which it is entitled under the same contractual relationship or which are not disputed by myLoc or which have been recognised by a court. The Customer can only assert a right of retention if the counterclaims are from the same contractual relationship.
myLoc is entitled to have the contractual services provided by third parties.
The EU Commission provides an online dispute resolution platform (OS platform), which can be reached via the following link: http://ec.europa.eu/consumers/odr/ The email address of myLoc is: info@myloc.de However, myLoc is not obliged and not prepared to participate in dispute settlement proceedings before a consumer arbitration board.