Toups v. Synthes, Inc.

Filing 36

ORDER & REASONS granting 28 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 11/04/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RONNIE TOUPS

CIVIL ACTION

v.

NO. 14-2544

SYNTHES, INC.

SECTION "F"
ORDER AND REASONS

Before
judgment.

the

Court

is

Synthes,

Inc.'s

motion

for

summary

For the reasons that follow, the motion is GRANTED.
Background

This product liability litigation arises out of injuries
suffered by the plaintiff as a result of two allegedly defective
medical devices implanted by two different surgeons.
On May 24, 2013, Ronnie Toups wrecked his motorcycle to avoid
getting hit by a car that failed to stop at a stop sign.
result, he broke his collar bone and his wrist.

As a

To treat this

clavicle injury (a right distal mid-shaft clavicle fracture with
displacement), Dr. Kevin Watson, an orthopedic surgeon, recommended
an open reduction and internal fixation surgery, in which he would
implant a metallic internal fixation device, which would help align
the fractured bones while normal healing occurs. The next day, Mr.
Toups underwent the recommended surgery during which Dr. Watson
implanted an eight-hole Synthes LCP clavicle plate with seven
Synthes locking and cortex screws.

1

The Synthes generic package

insert is included in the package for each LCP plate. According to
the product insert provided to the surgeon, clavicle plates are to
be used for fixation of fractures, malunions, and nonunions; the
generic product insert also contains a number of warnings directed
to the attention of the operating surgeon, including that "[t]hese
devices

can

break

when

subjected

to

the

associated with delayed union or nonunion."1

increased

loading

Dr. Watson had used

the Synthes-manufactured LCP plate before, had experienced positive
clinical results with the plate, and was of the opinion that the
plate was a safe and effective device.
One month after surgery, x-rays of Mr. Toups' right clavicle
showed "minimal callus formation or none," and x-rays six weeks
after surgery showed "some early callus" with no hardware failure.
X-rays ten weeks after surgery showed "some healing" that Dr.
Watson described as "slow."

Mr. Toups was allowed to return to

work. More than four months after surgery, on October 3, 2012, Mr.
Toups was working offshore closing the lid on a toolbox, or pulling
a strap on a toolbox, when he felt a pop in his shoulder followed
by immediate and severe pain. X-rays taken by Dr. Watson five days
later showed the stainless steel plate was broken in the area of
the bone fracture line.

Dr. Watson diagnosed failed hardware with

1

In layman's terms, "nonunion" simply pertains to a
fractured bone that fails to heal properly.
2

nonunion.2

Because

Mr.

Toups

had

lost

his

health

insurance

coverage, Dr. Watson referred Mr. Toups to Dr. Paul Gladden at LSU,
where Mr. Toups was seen by a resident under Gladden's supervision
the next day.
nonunion."

The diagnosis was "fracture of clavicle with

A few weeks later on October 29, 2012, Dr. Gladden

removed the broken plate and screws and performed tests to rule out
infection.

Dr. Gladden diagnosed "right clavicle nonunion with

broken hardware"; the surgery confirmed that there was no bone
healing: "[t]here did not appear to be any union at the fracture
site, whatsoever. It was very unstable."
After cultures came back negative for infection, Mr. Toups was
scheduled for a revision open reduction and internal fixation
surgery.

Mr. Toups was warned of the potential risk of failure or

breakage of internal fixation.

On November 28, 2012, Dr. Gladden

performed open reduction with internal fixation surgery, at which
time he implanted a Synthes LCP plate identical to the first plate
along with eight screws. Like Dr. Watson, Dr. Gladden had used the
LCP plate before with good clinical results, and he believed the
plate was a safe and effective medical device.

Dr. Gladden agreed

that the Synthes generic package insert accurately described the
risks associated with all internal fixation devices, including the
LCP plate, agreed that one such risk was fatigue failure secondary

2

Dr. Watson found "it unusual for this plate to fail
early in the course, even in the face of a delayed union, without
having some type of traumatic injury to it."
3

to nonunion or delayed union, agreed the implant race was a
scientifically established principle, and agreed he was aware of it
without any warning from Synthes.3

Dr. Gladden confirmed that the

breakage of the first plate was consistent with nonunion, which is
the most common cause of plate breakage, and that plate breakage
does not necessarily mean that there is a design, material, or
manufacturing defect in the plate.
In a follow-up visit seven weeks after surgery, x-rays showed
minimal callus formation.

After a physical exam, upon Mr. Toups'

request, on January 15, 2013, he was given a return to work slip.
Mr. Toups was instructed to return to LSU in six weeks, but he did
not return.

Instead, Mr. Toups went to Dr. Thomas Lyons on March

14, 2013 for additional evaluation and treatment.

X-rays taken by

Dr. Lyons showed that Mr. Toups' clavicle bone appeared to be "well
healed with consolidation of graft present although the bone is
thin in the midportion of the clavicle shaft and mild lucency
remains."
2012.

Mr. Toups had not returned to work since October 3,

Dr. Lyons allowed Mr. Toups to return to work as an

operator.
Almost one year after the surgery in which the second Synthes
plate was implanted, on November 6, 2013, Toups was at work using
a drill that "got locked up and jerked his arm", when he felt a pop

3

But it is not Dr. Gladden's practice to give patients
such as Mr. Toups copies of the inserts packaged with Synthes
clavicle plates.
4

in his shoulder, resulting in a steady onset of pain. X-rays
revealed that the second LCP plate was broken.
On November 19, 2013, Toups saw a third orthopedic surgeon,
Dr. Scott Habetz, who diagnosed "right clavicle, nonunion."

Dr.

Habetz warned Toups of the risks of nonunion and hardware failure,
and potential hardware removal. Dr. Habetz agreed that the Synthes
generic package insert accurately described the risks associated
with all internal fixation devices, including the LCP plate, agreed
that one such risk was fatigue failure secondary to nonunion or
delayed union, agreed that nonunion is the most common cause of
plate breakage, and agreed that plate breakage does not necessarily
mean that there is a design, material, or manufacturing defect in
the

plate.

reduction

On

December

fixation

2,

surgery,

2013,
which

Dr.

Habetz

confirmed

diagnosis of "right clavicle, nonunion."

performed

the

open

preoperative

Dr. Habetz removed the

Synthes hardware and implanted an Acumed-manufactured ten-hole
clavicle plate with nine screws, along with iliac crest bone graft
and Infuse artificial bone graft. X-rays taken more than ten weeks
after surgery showed no bone healing, and a bone stimulator was
ordered.
Mr. Toups last saw Dr. Habetz on August 13, 2014, when x-rays
showed that the fracture appeared to be healed.

Mr. Toups has not

experienced any problems with the Acumed clavicle plate installed
by Dr. Habetz.

On November 6, 2014, Mr. Toups sued Synthes, Inc.,

5

alleging various negligence claims as well as claims under the
Louisiana Products Liability Act; he seeks to recover damages as a
result of the allegedly defective Synthes-manufactured and designed
clavicle plates.

Synthes now seeks summary relief on the ground

that Mr. Toups cannot meet his burden to prove any claim, including
any cause of action alleged under the four exclusive theories of
liability

permitted

by

the

Louisiana

Products

Liability

Act,

La.R.S. 9:2800.51, et seq.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

6

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat

summary

judgment

"[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).

7

II.
A.
Synthes first submits that any claim based on the May 29, 2012
surgery is prescribed on its face and, as such, the plaintiff bears
the burden to establish why his claim against Synthes is not
prescribed.
argument.

The plaintiff has failed even to respond to Synthes'
Any

claim

based

on

the

first

plate

is

therefore

prescribed.
A

claim

for

damages

arising

from

a

defective

product

prescribes one year from when plaintiff sustains injuries. La. C.C
art. 3492.

"[A] plaintiff will be deemed to know that which he

could have learned by reasonable diligence."

Edmundson v. Amoco

Prod. Co., 924 F.2d 79, 83 (5th Cir. 1991)(citation omitted).
relevant

question

is

when

the

plaintiff

possessed

The

enough

information through the exercise of due diligence, knowable to the
plaintiff, to investigate his claim.

Misitch v. Cordes Mfg. Co.,

607 So.2d 955, 956 (La. App. 4 Cir. 1992).

Synthes submits that

Mr. Toups' cause of action was reasonably knowable at the latest by
October 29, 2012, when the first plate was removed.

The plaintiff

filed this lawsuit on November 11, 2014, more than two years after:
he felt a snap in his shoulder; returned to Dr. Watson on October
8, 2012; was told that the plate had broken; was allegedly told
that the plate was defective; he underwent surgery to remove the
broken plate on October 29, 2012; and he requested that he be given

8

the plate for legal reasons.

Any claim based on the first surgery

is prescribed on its face.

Because the plaintiff advances no

argument as to why any cause of action based on the allegedly
defective first plate is not prescribed, summary relief in favor of
Synthes is appropriate.

See Wimberly v. Gatch, 635 So.2d 206, 211

(La. 1994)(when the face of the complaint reveals that prescription
has run, the plaintiff bears the burden of showing why his claim
has not prescribed); see also Brown v. Our Lady of the Lake
Regional Medical Center, 803 So.2d 1135, 1137 (La. App. 1 Cir.
12/28/01)("Ordinarily, the burden of proof is on the party pleading
prescription; however, if on the face of the petition it appears as
if prescription has run, the burden shifts to the plaintiff to
prove a suspension or interruption of the prescriptive period.").
The plaintiff may only pursue his product liability claims arising
from the clavicle plate that failed on November 6, 2013.
B.
Synthes next submits that Mr. Toups' non-LPLA claims are
barred and must therefore be dismissed.

The Court agrees.

The Louisiana Products Liability Act (LPLA) provides the
exclusive remedy for products liability claims, or harm caused by
a manufacturer’s product. La. R.S. § 9:2800.52; Demahy v. Schwarz
Pharm, Inc., 702 F.3d 177, 182 (5th Cir. 2012); Jefferson v. Lead
Indus. Ass’n, Inc., 106 F. 3d 1245, 1250-51 (5th Cir. 1997). Thus,
it is clear that "[a] plaintiff may not recover from a manufacturer

9

for damage caused by a product on the basis of any theory of
liability not set forth in the LPLA." La. R.S. § 9:2800.52.
Moreover, even if an action under the LPLA is predicated on
principles of strict liability, negligence, or warranty, these
theories are not available as independent theories of recovery
against the manufacturer.

Stahl v. Novartis Pharma. Corp., 283

F.3d 254, 261 (5th Cir. 2002).
Synthes contends that all of plaintiffs' claims other than
those under the LPLA must be dismissed.
respond to Synthes' exclusivity argument.

The plaintiff fails to
The statute is clear

that the plaintiff's exclusive remedy lies with the LPLA.

Insofar

as the plaintiff alleges claims outside the scope of the LPLA,
those non-LPLA claims must be dismissed.
C.
Synthes submits that the plaintiff has no competent evidence
to support his claims under the LPLA under any of the four
available statutory theories of liability and, therefore, summary
relief is appropriate.
Under the LPLA, a plaintiff must prove that (1) the defendant
is the manufacturer of the product; (2) his injury or damage was
proximately caused by a characteristic of the product; (3) this
characteristic made the product “unreasonably dangerous”; and (4)
the plaintiff’s damage arose from a reasonably anticipated use of
the product.

Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261

10

(5th

Cir.

2002).

A

plaintiff

may

prove

that

a

product

"unreasonably dangerous" only by establishing that it is so:
in

construction

or

composition;

(2)

in

design;

(3)

due

is
(1)
to

inadequate warning; or (4) due to nonconformity to an express
warranty. Id.; La. R.S. § 9:2800.54(B)(1-4). Synthes submits that
Mr. Toups can prove none of these four theories.
1.

No evidence of defect in composition or manufacture.

First, Synthes submits that the plaintiff has no evidence to
support

his

allegations

that

the

plates

"were

unreasonably

dangerous in composition and/or design because they materially
deviated" from "specifications and/or performance standards."

The

Court agrees.
To be unreasonably dangerous in construction or composition,
a

product

must

have

"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"

when

it

left

its

manufacturer's

control.

La.R.S. § 9:2800.55; Jenkins v. International Paper Co., 945 So.2d
144, 150 (La. App. 2 Cir. 11/15/06)("A claimant must demonstrate
not only the manufacturer's specifications or performance standards
for the particular product, but also how the product materially
deviated from those standards so as to render it 'unreasonably
dangerous.'").
There is no evidence in the summary judgment record that

11

suggests that the clavicle plate was defective due to a mistake in
the manufacturing process.

Each of the plaintiff's physicians

agree that a material or manufacturing defect cannot be inferred
from breakage of a plate; that the most logical explanation of
plate breakage is nonunion.

Nevertheless, the plaintiff submits

that an issue of material fact exists as to whether or not the
plate

met

Synthes'

quality

control,

certification,

and

recertification requirements at the time the clavicle plate left
Synthes' control.

He relies on his expert metalurgical engineer,

Thomas Shelton, Ph.D., who concluded that the Synthes clavicle
plate removed from the plaintiff's shoulder on December 2, 2013
"failed by a fatigue fracture mechanism. The physical evidence
indicated

that

the

loads

applied

to

the

plate

were

low

significantly below the yield strength of the material."

and
The

plaintiff submits that Dr. Shelton was not able to compare the
composition

of

the

clavicle

plate

with

Synthes'

internal

specifications. However, the plaintiff only selectively cites
portions of his expert's deposition.
the plaintiff's position.

The complete record betrays

In fact, Dr. Shelton admitted that he

reviewed the raw material and manufacturing records, as well as the
design drawing for the LCP plate.
in

his

report

that

he

was

Although Dr. Shelton indicated

not

provided

with

the

design

specifications for the plate, he admitted in his deposition that he
was provided with the design drawing and that the dimensions of the

12

plate met the design drawing specifications.
Q.

And then under section 6 you talk about dimensions
and you say that dimensional specifications were
not included.
What was it you were looking for
that you didn't see included?

A.

Actually I found it later the – your schematics and
drawings.

Q.

Were you able to after you prepared your report
compare the plate to these drawings and determine
whether or not the dimensions were met, the
specifications and the drawings?

A.

Again, I did not do a detailed analysis, but I did
check the area in which the fracture occurred and
they appeared to meet the specifications.

Contrary to the plaintiff's characterization, Dr. Shelton testified
that the plate passed Synthes' quality control inspection, as well
as certification and recertification.

Dr. Shelton offers no

opinion that the plates deviated in a material way from the
specifications or performance standards for the plates, or deviated
from other Synthes plates; he agreed that the plate appeared to
meet the applicable standards, that the dimensions met Synthes'
specifications, that the plate passed Synthes' quality control
inspection,

and

recertification.
testing

is

needed

that
That
to

the

plate

Dr.

Shelton

determine

if

passed

certification

testified
there

is

that
a

and

additional

material

or

manufacturing defect fails to defeat Synthes' supported motion. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 proper if the party
opposing the motion fails to establish an essential element of his
case.).

A statement by the plaintiff's expert that a defect
13

"cannot

be

judgment.

ruled

out"

is

insufficient

to

withstand

summary

Such an opinion does not alter the fact that there is

nothing in the summary judgment record to support a claim that the
plate

was

unreasonably

dangerous

due

to

a

defect

in

the

manufacturing process. Given the absence of evidence of a material
or manufacturing defect, summary judgment in Synthes' favor is
appropriate.
2.

No evidence of design defect.

Synthes submits that there is no evidence to support any claim
that the plate was unreasonably dangerous due to a design defect.
Although the plaintiff alleges in his complaint that the plates
were unreasonably dangerous in design, he advances no response to
Synthes' argument that the plaintiff has presented no proof to
establish an alternative design.
The LPLA defines when a product is unreasonably dangerous in
design:
A product is unreasonably dangerous in design if, at the
time the product left its manufacturer's control:
(1) There existed an alternative design for the product
that was capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause
the claimant's damage and the gravity of that damage
outweighed the burden on the manufacturerer of adopting
such alternative design and the adverse effect, if any,
of such alternative design on the utility of the product.
An adequate warning about a product shall be considered
in evaluating the likelihood of damage when the
manufacturer has used reasonable care to provide the
adequate warning to users and handlers of the product.

14

La.R.S. § 9:2800.56; McCarthy v. Danek Medical, Inc., 65 F. Supp.
2d 410, 412 (E.D. La. 1999)("Without expert or technical evidence
to support the contention that the design was defective or to
establish an alternative design, plaintiff has failed to create an
issue of fact to be left to a jury.").

Here, the plaintiff has

presented no evidence that there existed an alternative design for
the clavicle plate.

The surgeons who implanted and explanted the

plates testified that the plates were safe and effective products,
and that plate failure does not mean that the design is defective.
Dr. Habetz in particular testified that the plate broke because of
nonunion and that all hardware will break if the bone does not
heal.

Because there is no evidence to support a claim that the LCP

plate design was defective, or to establish an alternate design,
summary judgment is appropriate.
3.

No evidence of inadequate warning.

Synthes submits that the plaintiff's inadequate warning claim
must fail for three reasons.

First, the generic package insert

warned of the possible adverse effects associated with the use of
the LCP plate system, including the potential for fatigue breakage,
additional surgery, and continued pain and discomfort. The generic
package insert warned of the specific risk involved here: "These
devices

can

break

when

subjected

to

the

associated with delayed union or nonunion."
cannot

show

causation

between

15

the

increased

loading

Second, the plaintiff

failure

to

warn

and

the

plaintiff's injury; there can be no causation when the failure to
warn involves a risk that does not occur or is already known in the
medical community.

Third, a manufacturer has a duty to warn only

the prescribing physician, not the patient, of the risks of a
prescription drug or device.

The plaintiff suggests that Synthes

did not warn the plaintiff directly and failed to warn the surgeons
about LCP plate load cycles.
The plaintiff offers no evidence in support of an inadequate
warning claim.

The plaintiff does not dispute that the record

shows that the Synthes generic package insert warned of the
possible adverse effects, including that the device can break "when
subjected to the increased loading associated with delayed or
nonunion."

The

plaintiff's

surgeons

agreed

that

the

insert

accurately describes the risks associated with orthopedic fixation
devices such as the LCP plate.

Moreover, Synthes is not liable

under the LPLA for failure to warn when "the user or handler of the
product

already

knows

or

reasonably

should

know

of

the

characteristics of the product that may cause damage and the danger
of such characteristics." La.R.S. § 9:2800.57(B)(2).

To prevail

under a failure to warn theory, the plaintiff must show that (1)
Synthes failed to warn the doctors of a risk associated with the
device "not otherwise known to the physician;" and (2) this failure
to warn was both a cause in fact and proximate cause of the
plaintiff's injury.

Willett v. Baxter Intern., Inc., 929 F.2d

16

1094, 1098-99 (5th Cir. 1991). Here, the plaintiff offers no proof
of either element.

The record shows that the plaintiff's surgeons4

were aware of all material risks associated with the LCP plate,
including fatigue failure secondary to nonunion. Summary judgment
dismissing the failure to warn claim is appropriate.
4.

No evidence of an express warranty.

Finally, Synthes seeks to dismiss the plaintiff's claim that
it breached an express warranty "to the general public and the
medical community" that the LCP plates were "suitable and safe for
use." The plaintiff fails to mention any express warranty claim in
its opposition papers.
Under the LPLA, a plaintiff may claim that a product is
unreasonably dangerous if the product "does not conform to an
express warranty made at any time by the manufacturer" and the
warranty "has induced the claimant or another person or entity to
use the product and the claimant's damage was proximately caused
because the express warranty was untrue."

La.R.S. § 9:2800.57(A).

If there is nothing in the record to indicate the existence of an
express warranty, summary judgment dismissing a claim based upon
the failure to conform to an express warranty is appropriate. Clay

4

Under Louisiana's learned intermediary rule, a
manufacturer warns only the prescribing physician, not the patient,
of the risks of a prescription drug or device.
It is the
plaintiff's burden to show that the warning was inadequate because
it did not inform his surgeon of a material risk not already known
to the surgeon. McCarthy, 65 F. Supp. 2d at 413.
17

v. Int'l Harvester Co., 674 So.2d 398, 412 (La. App. 3 Cir.
5/8/96).

There is no evidence in the record as to any express

warranty made by Synthes. Accordingly, summary judgment dismissing
the plaintiff's claim that the plate failed to conform to an
express warranty is warranted.
D.
Finally, the Court addresses two remaining arguments that the
plaintiff advances in an effort to withstand summary judgment.
1.
The

Circumstantial Evidence
plaintiff

submits

that

the

circumstantial

evidence

presented in this case presents a genuine issue of material fact
that should be presented to the jury.

That is, the plaintiff

submits that the record shows that Mr. Toups had two Synthes 8 hole
clavicle plates fixated to his collar bone by two different
orthpedic surgeons at two different hospitals.

And both failed.

These facts alone may persuade a reasonable jury that the Synthes
plates were unreasonably dangerous due to manufacturing defects.
The Court disagrees.
The plaintiff cites no authority for his res ipsa loquitur
argument under the circumstances presented here.

In fact, the

authority is to the contrary: the mere fact that a product fails is
not evidence of a defect, and a plaintiff cannot rely on such
circumstantial evidence when direct evidence was available.

See

Lawson v. Mitsubishi Motor Sales of America, Inc., 938 So.2d 35, 43

18

(La. 2006)(acknowledging that res ipsa loquitur doctrine may be
used in product liability cases, but finding it inapplicable to the
facts of the case presented).

Here, all three of the plaintiff's

surgeons testified that plate breakage does not mean that the plate
has a manufacturing defect.

In fact, the summary judgment record

suggests that one of the most probable explanations for plate
breakage is nonunion -- notably, the diagnosis given by the
plaintiff's surgeons -- not a plate defect.

Accordingly, the

plaintiff has failed to persuade that the doctrine of res ipsa
loquitur precludes summary judgment.
2.

Discovery

Finally, the plaintiff alternatively urges the Court to deny
the defendant's motion pursuant to Rule 56(d) because discovery is
incomplete.

The plaintiff suggests that Synthes has not yet

submitted its expert reports, which plaintiff submits leaves him
unable

to

present

Synthes' motion.

facts

sufficient

to

justify

opposition

to

Notwithstanding that Rule 56(d) motions are

"broadly favored and should be liberally be granted", Raby v.
Livingston, 600 F.3d 552, 561 (5th Cir. 2010), the plaintiff's
request is denied.
The rule provides:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:

19

(1)
(2)
(3)

defer considering the motion or deny it;
allow
time
to
obtain
affidavits
declarations or to take discovery; or
issue any other appropriate order.

FED. R. CIV. P. 56(d).

or

Thus, the Rule 56(d) movant "must set forth

a plausible basis for believing that specified facts, susceptible
of collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the
outcome of the pending summary judgment motion." McKay v. Novartis
Pharmaceutical Corp., 751 F.3d 694, 700 (5th Cir. 2014)(citing
Raby, 600 F.3d at 561)); Int'l Shortstop, Inc. v. Rally's, Inc.,
939 F.2d 1257, 1267 (5th Cir. 1991)("The nonmoving party must show
how the additional discovery will defeat the summary judgment
motion, that is, will create a genuine dispute as to a material
fact, and may not simply rely on vague assertions that additional
discovery will produce needed, but unspecified facts.")(internal
quotation and citation omitted).
The plaintiff has failed to comply with Rule 56(d). First, he
submits no affidavit or declaration in support of his request for
additional discovery to overcome Synthes' summary judgment motion.
Second, he fails to specify what facts might exist, let alone
articulate a plausible basis for believing how any adduced facts
would influence the outcome of Synthes' summary judgment motion.
All that plaintiff suggests is that he is awaiting the defendant's
expert reports.

But he fails to explain how any potential defense

expert would assist the plaintiff in his obligation to put forth
20

evidence supporting the essential elements of his LPLA claims.5
Without any indication by the plaintiff how a defense expert could
assist him in adducing proof for his case, the plaintiff fails to
persuade the Court that it must deny, or defer ruling on, the
defendant's summary judgment motion.
***
Accordingly, for the foregoing reasons, the defendant's motion
for summary judgment is GRANTED. The plaintiff's claims are hereby
dismissed.

New Orleans, Louisiana, November 4, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

5

The defendant submits that the plaintiff has not been
diligent in pursuing discovery, noting that the plaintiff made no
effort to take any discovery until 35 days before the discovery
cutoff. This further supports denial of the plaintiff's request
for additional time to conduct discovery before ruling on the
summary judgment motion.
McKay, 751 F.3d at 700 ("If the
requesting party 'has not diligently pursued discovery . . . []he
is not entitled to relief' under rule 56(d).")
21