Martinez v. Johnson and Johnson et al

Filing 53

ORDER and REASONS granting 33 Motion for Summary Judgment, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 12/30/2015. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JIMMY L. MARTINEZ

CIVIL ACTION

VERSUS

NO. 14-607

JOHNSON & JOHNSON; ETHICON, INC.;
ETHICON PRODUCTS; AND ABC
CORPORATION

SECTION "N" (5)

ORDER AND REASONS
Presently before the Court is Defendants' "Motion for Summary Judgment" (Rec.
Doc. 33). On the showing made,
IT IS ORDERED that Defendants' motion is GRANTED.
I. Background
Plaintiff Jimmy Martinez's ("Martinez") lawsuit arises from alleged injuries that he suffered
after having a PROCEED® Ventral Patch ("PVP") surgically implanted to repair a ventral hernia
on March 19, 2013.1 Post surgery, Martinez experienced discomfort that included pain, poor appetite
and a lack of bowel movements. This discomfort caused him to return to the implanting surgeon,
Dr. Kappelman, who upon examination discovered liquid leaking from Martinez's surgical incision.
Dr. Kappelman ordered his patient admitted on March 26, 2013, to Ochsner West Bank, where
Martinez was treated for renal failure and septic shock. The following day, Dr. Kappelman and
another surgeon removed the PVP, after reopening the wound and finding a one-centimeter hole in
Martinez's colon. Martinez continued to be treated thereafter for necrotizing fasciitis, management

1

A PVP is a flexible laminate mesh device intended for the repair of hernias and other
fascial deficiencies.

of fistula, and small bowel resection.
While simultaneously pursuing medical malpractice claims against Dr. Kappelman and
Ochsner in Louisiana state court, Martinez filed the instant suit alleging that the PVP was defective,
"eroded into the Plaintiff's cecum," and resulted in a perforated bowel. The defendants, Johnson &
Johnson and Ethicon, Inc. (collectively "Ethicon"), have filed the instant motion for summary
judgment, arguing that Martinez has failed to establish a prima facie case of product defect under
the Louisiana Products Liability Act ("LPLA"), La. Rev. Stat. § 9:2800.51 et seq.
II. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be
granted "if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "Materiality" is determined by
the substantive law's identification of which facts are critical and which facts are irrelevant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Id.
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 summary judgment burden by merely pointing out that the
evidence in the record contains insufficient proof concerning an essential element of the nonmoving
party's claim. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 2554, 91 L. Ed. 2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178
(5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the nonmoving
party must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue
for trial.'" Celotex, 477 U.S. at 324, 106 S. Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986); Auguster
2

v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
When evaluating a motion for summary judgment, the Court views the evidence in the light
most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and
draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C.,
277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the nonmoving party,
"but only when there is an actual controversy, that is, when both parties have submitted evidence
of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations
omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts." See id. (emphasis in original) (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed.2d 695 (1990)).
Although the Court is to consider the full record in ruling on a motion for summary
judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to
summary judgment. See Fed. R. Civ. P. 56(c)(3) ("court need consider only the cited materials");
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) ("When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to the motion for
summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving
party should "identify specific evidence in the record, and articulate" precisely how that evidence
supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871,
115 S. Ct. 195 (1994).
III. Application of the Legal Standard
A. Liability Under The Louisiana Products Liability Act
Martinez claims negligence of the defendants in their production, development, design,
manufacture, distribution, and marketing of the PVP, in violation of the laws of Louisiana. The
LPLA serves as the exclusive theory of liability under Louisiana law for recovering from
3

manufacturers for injuries caused by their products. La. Rev. Stat. Ann. § 9:2800.52 (West 2015);
Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997) ("Louisiana law eschews
all theories of recovery in this [products liability] case except those explicitly set forth in the
LPLA.").2 The LPLA permits plaintiffs to recover for damages proximately caused by products that
are unreasonably dangerous within the meaning of the Act. La. Rev. Stat. Ann. § 9:2800.54 (A)
(West 2015). The burden of demonstrating that a particular product was unreasonably dangerous is
borne by the plaintiff in a products liability action. Id. at § 9:2800.54(D). To satisfy this burden, the
plaintiff must prove that the product was unreasonably dangerous due to: (1) defective construction
or composition; (2) defective design; (3) inadequate warning; or (4) breach of express warranty. Id.
at § 9:2800.54 (B). In the case sub judice, the plaintiff, Martinez, fails on all four theories to
demonstrate or to provide evidence creating a genuine issue of material fact.
1. Defective Construction or Composition
First, Martinez argues that the lack of a smooth surface made the PVP defective in its
construction or composition. "The 'unreasonably dangerous in construction or composition'
provision of the LPLA provides a remedy for damages caused by a product that is defective due to
a mistake in the manufacturing process." Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir.
2002) (citing La. Rev. Stat. Ann. § 9:2800.55 (West 2015)). Proving defective construction or
composition requires a plaintiff to "demonstrate that at the time the product left its manufacturer's
control, 'the product deviated in a material way from the manufacturer's specifications or
performance standards for the product or from otherwise identical products manufactured by the
same manufacturer.'" Id.

2

To the extent that Martinez has asserted in his complaint vague, non-LPLA claims of
negligence, Ethicon argues that the exclusivity of the Act bars such claims. Martinez offers no
rebuttal. The Court, therefore, finds dismissal of these undeveloped claims to be appropriate upon
the showing made.
4

In support of his defective construction or composition theory, Martinez relies on the
testimony of the implanting surgeon, Dr. Kappelman. A close look at the deposition transcript of Dr.
Kappelman, however, reveals that his testimony is not an endorsement of Martinez's claim. While
Dr. Kappelman did state that the PVP was "not totally flexible" and "d[id] have a rough surface to
a certain degree," he did not testify that its construction or composition deviated from manufacturer's
specifications or performance standards, or from other PVP's manufactured by the defendants.
Furthermore, although Dr. Kappelman attributed the hole in Martinez's cecum to contact with the
PVP, he explained that the intestine is constantly moving back and forth in a motion known as
"peristalsis." He further testified that PVP itself had not moved from the location where it had been
stitched and that Martinez did not suffer a hernia recurrence. Finally, when pressed on the issue, Dr.
Kappelman refused to call the product defective, stating only "I can't say" and "I really do not
know."
Dr. Kappelman's inconclusive testimony is insufficient to create a genuine issue concerning the
integrity of the product.
2. Defective Design
Second, citing little evidentiary support, Martinez argues that the PVP was unreasonably
dangerous due to a defective design. However, "Louisiana law does not allow a fact finder to
presume an unreasonably dangerous design solely from the fact that injury occured." Grenier v.
Medical Engineering Corp., 243 F.3d 200, 205 (5th Cir. 2000) (quoting Krummel v. Bombardier
Corp., 206 F.3d 548, 551 (5th Cir. 2000). A plaintiff must show that "[t]here existed an alternative
design for the product that was capable of preventing the claimant's damage." La. Rev. Stat. Ann.
§ 9:2800.56 (West 2015); see Reeves v. AcroMed Corp., 44 F.3d 300, 308 (5th Cir. 1995) ("To

5

prevail on this [defective design] theory, Louisiana law requires a plaintiff to establish the existence
of an alternative safer design for the product."). In this case, Martinez offers no evidence of an
alternative safer design, which is fatal to his design defect claim under the LPLA.
3. Inadequate Warning
Third, Martinez asserts at the outset of his opposition that the PVP was unreasonably
dangerous due to a lack of adequate warning, but he fails to elaborate on this theory or cite evidence
in support. The Court is not obligated to search the record for evidence, Malacara v. Garber, 353
F.3d 393, 405 (5th Cir. 2003), and it need consider only that which is cited. Fed. R. Civ. P. 56(c)(3).
Therefore, Martinez's claim of inadequate warning is dismissed for want of evidentiary support.
4. Breach of Express Warranty
Finally, Martinez argues that statements found in Ethicon's Instructions for Use ("IFU") of
the PVP constituted an express warranty. For a breach of express warranty claim to survive
summary judgement,
[A] plaintiff is required to demonstrate, or provide evidence to create a genuine issue
of material fact regarding the following: (1) the manufacturer made an express
warranty regarding the product, (2) the plaintiff was induced to use the product
because of that warranty, (3) the product failed to conform to that express warranty,
and (4) the plaintiff's damage was proximately caused because the express warranty
was untrue.
Caboni v. General Motors Corp., 278 F.3d 448, 452 (5th Cir. 2002). Assuming arguendo that the
statements in the IFU qualify as express warranties to which the PVP failed to conform, Martinez
has not alleged that either he or the surgeon, Dr. Kappelman, relied on the statements in deciding
to use the product. As a result of this omission alone, Martinez's breach of warranty is dismissed.
IV. Conclusion
For the reasons stated herein,
6

IT IS ORDERED that Ethicon's motion for summary judgment (Rec. Doc. 33) is hereby
GRANTED.
New Orleans, Louisiana, this 30th day of December, 2015.

________________________________
KURT D. ENGELHARDT
United States District Judge

7