Roberts, et al v. Johnson & Johnson, Inc. et al

Filing 18

ORDER AND REASONS: IT IS ORDERED that the Defendants' 11 Motion for Summary Judgment is GRANTED as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/22/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RANDY A. ROBERTS, SR., ET AL.

CIVIL ACTION

VERSUS

NO. 16-3991

JOHNSON & JOHNSON, INC., ET AL.

SECTION “B”(2)

ORDER AND REASONS

Before the court are “Defendants’ Motion for Summary
Judgment” (Rec. Doc. 11), “Plaintiffs’ Response in Opposition to
Defendants’ Motion for Summary Judgment” (Rec. Doc. 12), and
“Reply Memorandum in Support of Defendants’ Motion for Summary
Judgment” (Rec. Doc. 15). For the reasons set forth below, IT IS
ORDERED that the Defendants’ Motion for Summary Judgment is
GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
Plaintiff, Randy A. Roberts, Sr. alleges that he was

injured as a result of being implanted with the Defendants’,
Johnson and Johnson, Inc. and Ethicon, Inc., Prolene® Mesh
System during a surgery related to a hernia (Rec. Doc. 1). The
Plaintiff claims that after he underwent a surgical procedure on
January 11, 2006, involving the use of the Prolene® Mesh System,
he began to experience tissue infections and had to undergo
multiple revision surgeries, causing him permanent and
irreparable harm (Rec. Doc. 1). The Plaintiff alleges that the
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Defendants’ device is defective and brings product liability
claims against them.
II.

FACTUAL AND LEGAL FINDINGS
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.
(1986).

a

A genuine issue exists if the evidence

reasonable

jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The

moving

party

bears

the

initial

responsibility

of

informing the district court of the basis for its motion. Celotex,
477 U.S. at 323. The movant must point to “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence of a genuine issue of material fact.” Id. (citing Fed.
R. Civ. P. 56). If and when the movant carries this burden, the
nonmovant must then go beyond the pleadings and use affidavits,
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depositions,

interrogatory

responses,

evidence to establish a genuine issue.

admissions,

or

other

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[W]here the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (citations
omitted). Accordingly, conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment.

Travelers Ins. Co. v.

Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Under Louisiana Law in order for a Plaintiff to bring a
successful products liability claim he must demonstrate that the
Defendant manufactured the product at issue. Jefferson v. Lead
Indus.

Ass'n,

930

F.

Supp.

241,

245

(E.D.

La.

1996).

The

Defendants’ have proffered evidence that the Plaintiff’s doctor
did not use their device in his surgery. The implant section of
operation notes recorded the day of the surgery lists the Bard®
Mesh Monofilament Knitted Polypropylene System as the device that
was implanted into the Plaintiff (Rec. Doc. 11-4). There is no
evidence

that

the

Defendants

manufacture
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this

product.

The

Prolene® Mesh System that is manufactured by the Defendants’ was
not listed in the operation notes. Furthermore, the operation notes
describes the Bard® Mesh device as a two dimensional object (Rec.
Doc. 11-4). Conversely, Defendants’ product, Prolene® Mesh System,
is a three dimensional device and described in detail on the
Defendants’ website (Rec. Docs. 1 and 11).
The Plaintiff’s argue that the operation notes from the
Plaintiff’s revision surgeries create a genuine issue of material
fact and that the physicians reference the Defendants’ Prolene®
Mesh System. However, this is mere conjecture. In the referenced
exhibit the physician wrote “the patient likely had a PHS system
used to repair this hernia” (Rec. Doc. 12-2). The physician who
was removing the infected device does not definitively conflict
with the original operation notes. He merely makes an educated
guess as to what he is removing from the Plaintiff’s body. This is
not enough to overcome the summary judgment standard. The Supreme
Court has clarified, “when opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Given
the operation notes from the day the device was implanted, there
is no genuine issue of material disputed fact that the Defendants

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are not liable for any injuries that the Plaintiff suffered because
they are not the manufacturers of the device at issue1.

New Orleans, Louisiana, this 22nd day of March, 2017.

__________________________________
SENIOR UNITED STATES DISTRICT JUDGE

Discovery closes on April 25, 2017. The parties have had ample
time to conduct relevant discovery. This Court will not delay
ruling on summary judgment given the undisputed facts as
proffered by the Defendants.
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