Hall v. Horn Medical, L.L.C. et al

Filing 54

ORDER & GRANTING granting 47 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 5/16/2012. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID HALL

CIVIL ACTION

VERSUS

NO: 11-1032

HORN MEDICAL, L.L.C., ET AL.

SECTION: R(1)

ORDER AND REASONS
Defendants Horn Medical, L.L.C., IGP Medical, L.L.C. and
Jeffrey Wenzel move for summary judgment.1

Plaintiff David Hall

and plaintiff-in-intervention LUBA Casualty Insurance Company
oppose the motion.2

For the following reasons, the Court GRANTS

the motion.

I.

BACKGROUND
This personal injury case arises from a spinal surgery

defendant Dr. Louis Provenza performed on David Hall on February
16, 2009.

Hall had approached Dr. Provenza on November 11, 2008,

exhibiting herniated discs at levels L3-L4 and L4-L5 of his
lumbar spine.3

Given Hall’s age, Dr. Provenza recommended

1

R. Doc. 47.

2

R. Doc. 49; R. Doc. 50.

3

R. Doc. 49-5 at 4.

inserting intradiscal cage devices in the affected discs without
performing a bone graft, also known as a fusion.4
The cage device Dr. Provenza contemplated using was the
Eclipse Sphere, which he obtained from Jeffrey Wenzel, the sole
owner of IGP Medical.

Wenzel worked as an independent contractor

for Horn Medical, a medical device supply company.5

Horn Medical

received the Eclipse Sphere from Verticor, its manufacturer, and
then supplied the Eclipse Sphere to the physician.6

The Eclipse

Sphere came in a box that contained instructions for use required
by the Food and Drug Administration.7

The instructions

specified, inter alia, that the “Spinal Spheres are intended to
be used with bone graft.”8
When Dr. Provenza performed the surgery, he inserted the
Eclipse Sphere without doing a bone graft or fusion.9

Dr.

Provenza asserts that the sales representative told him that he
could use the Eclipse Sphere without a bone graft.10

Hall

asserts that after the surgery, the spheres displaced and caused

4

Id. at 3.

5

R. Doc. 49-4 at 1-3.

6

Id. at 3-4.

7

R. Doc. 49-2; R. Doc. 49-3 at 5.

8

R. Doc. 49-2 at 1.

9

R. Doc. 49-5 at 9.

10

R. Doc. 49-5 at 6.
2

a number of neurological deficits.11

Hall submits that the

insertion of the discs without using a bone graft caused his
injuries.12

After he went through two surgeries to repair the

injury he suffered from the initial surgery, Hall sued Horn
Medical, IGP Medical, Wenzel, and Dr. Provenza.

Hall alleges a

medical malpractice claim against Dr. Provenza and negligence
claims against Horn Medical, IGP Medical, and Wenzel for failing
to advise Dr. Provenza that the Eclipse Sphere should be used
with a bone graft.13

Louisiana United Business Association

Casualty Insurance Company (“LUBA”) filed a complaint in
intervention.14

LUBA asserts that it insures Hall’s employer

under the Louisiana Worker’s Compensation Act, La. Rev. Stat. §
23:1032, et seq., and that it is entitled to recover medical
benefits it paid to Hall on behalf of Hall’s employer.15
On June 20, 2011, Horn Medical, IGP Medical, and Wenzel
filed a motion to dismiss for failure to state a claim on the
grounds that Hall could not assert medical malpractice claims
against parties who are not health care providers.16

11

R. Doc. 1 at 3-4.

12

R. Doc. 49-8.

13

R. Doc. 1.

14

R. Doc. 19.

15

Id. at 3.

16

R. Doc. 8.
3

The Court

denied the motion at oral argument, finding that Hall alleged
negligence claims, not medical malpractice claims, against
defendants Horn Medical, IGP Medical, and Wenzel.17
Horn Medical, IGP Medical, and Wenzel now move the Court to
grant summary judgment on the claims against them.

They argue

that (1) Horn Medical must be dismissed because Wenzel was an
independent contractor and Horn Medical cannot be vicariously
liable for his acts, and (2) that Hall presents no evidence or
expert testimony that Horn Medical, IGP Medical, or Wenzel
breached the standard of care.18

In response, Hall contends that

genuine issues of material fact exist.19

LUBA also opposes the

motion and contends that there are genuine issues of material
fact.20

II.

STANDARD
Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and

17

R. Doc. 20.

18

Defendants’ motion also argues that Dr. Provenza does
not have evidence or expert testimony that Horn Medical, IGP
Medical, or Wenzel breached the standard of care. Because Dr.
Provenza does not assert claims against Horn, IGP and Wenzel, the
Court does not address this aspect of defendants’ argument.
19

R. Doc. 49.

20

R. Doc. 50.
4

that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).

When assessing whether a dispute as to any

material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”

Delta & Pine Land Co. v. Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).

All

reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216

(5th Cir. 1985) (quoting C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”

Int’l

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991).

The nonmoving party can then defeat the motion by

either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may

5

not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim.

See Celotex, 477 U.S. at 325.

The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.

See id. at 324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.

Id. at

325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discover and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).

III. DISCUSSION
A.

Horn Medical
Defendants contend that Horn Medical must be dismissed

because there is no evidence that Horn ever discussed the Eclipse
Sphere with Dr. Provenza.

Defendants also argue that Horn cannot
6

be held liable for acts of Wenzel because he was an independent
contractor.
merit.

The Court finds that defendants’ arguments have

First, the record contains no evidence that Horn ever

interacted with Dr. Provena.

Second, under Louisiana law, a

principal generally is not liable for any negligent acts
committed by its independent contractor in the course of
performing its contractual duties.

See Ainsworth v. Shell

Offshore, Inc., 829 F.2d 548, 549 (5th Cir. 1987); see also
Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th Cir. 1994).

Both

Wenzel and Michael C. Horn, the sole owner of Horn Medical,
contend that Wenzel works as an independent contractor for Horn
Medical.21

Hall admits that Horn Medical and Wenzel/IGP Medical

have an independent contractor relationship.22

Because Horn

Medical cannot be liable for acts committed by its independent
contractors, and because Horn did not make any representations,
the Court dismisses the claim against Horn Medical.

B.

Wenzel and IGP Medical
Defendants contend that there is no evidence that Wenzel or

IGP breached the standard of care.23

The gravamen of Hall’s

claim against Wenzel and IGP is negligent misrepresentation.

To

21

R. Doc. 47-6 at 2; R. Doc. 47-5 at 3.

22

R. Doc. 49 at 3; R. Doc. 49-1 at ¶11 (admitting fact).

23

R. Doc. 47-3 at 4-5.
7

prevail on a claim of negligent misrepresentation that results in
physical harm, a plaintiff must demonstrate (1) a negligent
misrepresentation or giving of false information to another, (2)
foreseeable action taken by the other in reasonable reliance on
such information, (3) which results in physical harm to the other
or to a third person who reasonably could be expected to be put
in peril by the action taken.

Guidry v. U.S. Tobacco Co., Inc.,

188 F.3d 619, 627 (5th Cir. 1999).

This tort “by its own terms

requires an affirmative misstatement, not just a non-disclosure.”
McLauchlan v. New York Life Ins. Co., 488 F.3d 624, 630 (5th Cir.
2007).

It does not create “a duty that would require everyone to

warn everyone else of various physical dangers, regardless of the
relationship.”

Id.

Hall contends that there is a genuine issue of material fact
regarding what Wenzel told Dr. Provenza about the Eclipse Sphere.
Wenzel testified that he had no discussions with Dr. Provenza
about how the Eclipse Spheres were to be used in Hall’s
surgery.24

Although he was present during Hall’s surgery, Wenzel

testified that he did not speak to Dr. Provenza about whether the
Eclipse Spheres were to be accompanied by a bone graft or
fusion.25

Dr. Provenza testified, however, that Wenzel told him

24

R. Doc. 49-3 at 7,10.

25

Id. at 12.
8

that he could use the Eclipse Sphere without a bone graft.26
Although Dr. Provenza testified that he would have used the
Eclipse Sphere on Hall’s surgery even if he had known that the
spheres were intended to be used only with bone graft, he
testified that he would have done so based on the representations
Wenzel made to him.27

Dr. Provenza further stated that if the

sales representative had told him that the spheres should be used
with a bone graft, he would have used the spheres without the
bone graft and informed Hall that it was an “off label” use.28
But Dr. Provenza emphasized that he “would not use it without
bone graft unless the rep said that it could be used without bone
graft as an off label [use].”29
Even if Wenzel told Dr. Provenza that he could use the
spheres without a bone graft, the Court finds that any reliance
by Dr. Provenza on that statement to be unreasonable as a matter
of law.

These representations were not about the physical

properties of the spheres, or how to operate a mechanical device.
Further, Hall does not claim that the device was defective or
malfunctioned, or that the manufacturer failed to provide
adequate warnings.

Rather, Wenzel’s purported statements

26

R. Doc. 49-5 at 6.

27

R. Doc. 49-5 at 9.

28

Id.

29

R. Doc. 49-5 at 10.
9

addressed what type of spinal procedure Dr. Provenza should
perform on Hall.

As a seasoned neurosurgeon, it is patently

unreasonable for Dr. Provenza to rely on a sales representative’s
opinion about the type of procedure that should be employed in
operating on a patient’s spine.

Cf. Uribe v. Sofamor, S.N.C.,

No. 8:95CV464, 1999 WL 1129703, at *6 (D. Neb. Aug. 16,
1999)(“Off-label use of a medical device is a matter of medical
judgment.”).

Moreover, the instructions in the Eclipse Sphere

package clearly stated that the spheres were intended to be used
with a bone graft.30

Wenzel testified that the instructions come

with the device, and that he leaves the warnings in the box that
is shipped.31

Because Dr. Provenza’s reliance was unreasonable

as a matter of law, the negligent misrepresentation claim against
him must fail.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the motion.

New Orleans, Louisiana, this 16th day of May, 2012.
___
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

30

R. Doc. 49-2 at 1.

31

R. Doc. 49-3 at 5.
10