Phillips v. Stryker Corporation
Filing
33
RULING granting 21 Motion for Summary Judgment filed by deft Stryker Corporation and denying 29 Motion to Stay Proceedings and to Statistically Close Case Pending Completion of Medical Review Panel Proceedings filed by pltf. Signed by Magistrate Judge Stephen C. Riedlinger on 4/19/2012. (JDL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHELLE PHILLIPS
CIVIL ACTION
VERSUS
NUMBER 11-62-SCR
STRYKER CORPORATION
RULING ON MOTION FOR SUMMARY JUDGMENT
and
RULING ON MOTION TO STAY
Before the court is a Motion for Summary Judgment filed by the
defendant Stryker Corporation.
motion is opposed.1
Record document number 21.
The
Also before the court is the plaintiff’s
Motion to Stay Proceedings and to Statistically Close Case Pending
Completion of Medical Review Panel Proceedings.
number 29.
This motion is also opposed.2
Plaintiff
defendant
Record document
Michelle
Stryker
Phillips
Corporation
filed
seeking
this
action
damages
against
resulting
from
injuries allegedly caused by defective hip replacement device
manufactured by the defendant.
Plaintiff alleged that on January
11, 2010 she was implanted with the defendant’s hip replacement
device during a left total hip arthroplasty.
Plaintiff alleged
that after the surgery, the surgical site became infected with
1
Record document numbers 23. Defendant
memorandum. Record document number 31.
2
Record document number 32.
filed
a
reply
Mycobacterium Fortuitum, and the device was removed.3
Plaintiff
alleged that as a result of the infection she had to undergo
several surgical procedures and suffered injuries to her bones,
muscles, tendons, ligaments, and soft tissue of her left hip and
femur.
Plaintiff sought recovery under Louisiana law, arguing that
the
defendant’s
device
was
unreasonably
dangerous
in
its
construction or composition, because of an inadequate warning, and
because it failed to conform to an express warranty.
Defendant Stryker sought a summary judgment based on the
plaintiff’s lack of any expert testimony or other supporting
evidence to establish that the device was unreasonably dangerous
under the Louisiana Products Liability Act, LSA-R.S. 9:2800.51 et
seq.
Specifically, the defendant argued that the plaintiff cannot
produce any evidence demonstrating a mistake in the manufacturing
process, a dangerous characteristic of the product at the time it
left the defendant’s control, a failure of the product’s warnings,
or that the plaintiff relied on an express warranty issued by it.
Defendant also asserted that the record is devoid of any evidence
showing that the device was the cause of the plaintiff’s postsurgery infection and injuries.
3
Plaintiff did not allege when she first noticed the
infection, but she alleged she returned to the hospital on or about
March 5, 2010. Record document number 1-2, Petition for Damages,
¶ 5.
2
In her opposition, the plaintiff argued that the courts have
held that summary judgment is inappropriate in products liability
cases.
Plaintiff asserted that summary judgment is particularly
unwarranted in this cases because the discovery process had not
concluded at the time the defendant’s motion was filed.
In the
alternative, the plaintiff argued that because the defendant’s
device was implanted in her prior to the injuries, a genuine issue
of material fact exists as to whether the device was the cause of
her injuries.
Applicable Law
Summary judgment is only proper when the moving party, in a
properly supported motion, demonstrates that there is no genuine
issue of material fact and that the party is entitled to judgment
as a matter of law.
Rule 56(a), Fed.R.Civ.P.; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).
If
the moving party carries its burden under Rule 56(c), the opposing
party must direct the court’s attention to specific evidence in the
record which demonstrates that it can satisfy a reasonable jury
that it is entitled to verdict in its favor.
252, 106 S.Ct. at 2512.
metaphysical
doubt
as
Anderson, 477 U.S. at
This burden is not satisfied by some
to
the
material
facts,
conclusory
allegations, unsubstantiated assertions or only a scintilla of
evidence.
1994).
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
In resolving the motion the court must review all the
3
evidence and the record taken as a whole in the light most
favorable to the party opposing the motion, and draw all reasonable
inferences in that party’s favor.
S.Ct. at 2513.
Anderson, 477 U.S. at 255, 106
The court may not make credibility findings, weigh
the evidence or resolve factual disputes.
Id.; International
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir.
1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
The
substantive
law
dictates
which
facts
are
material.
Littlefield v. Forney Independent School Dist., 268 F.3d 275, 282
(5th Cir. 2001).
In this case the plaintiff alleged a claim under
the Louisiana Products Liability Act (“LPLA”), which requires
establishing
four
elements:
(1)
that
the
defendant
is
a
manufacturer of the product; (2) that the plaintiff’s damage was
proximately caused by a characteristic of the product; (3) that
this characteristic made the product unreasonably dangerous, and
(4) that the plaintiff’s damage arose from a reasonably anticipated
use of the product by the plaintiff or someone else.
9:2800.54(A).
LSA-R.S.
Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d
254, 261 (5th Cir. 2002).
The statute sets forth the four exclusive theories under which
the
plaintiff
can
establish
that
a
product
is
unreasonably
dangerous:
(1) The product is unreasonably dangerous in construction
or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as
4
provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an
adequate warning about the product has not been provided
as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does
not conform to an express warranty of the manufacturer
about the product as provided in R.S. 9:2800.58.
Id.
Analysis
Plaintiff’s initial argument regarding the appropriateness of
summary judgment in negligence and/or products liability cases is
without merit.
The cases cited by the plaintiff in support of her
argument did not involve similar facts or Louisiana law.
contrary,
the
Fifth
Circuit
has
repeatedly
affirmed
To the
summary
judgment on various claims brought under the LPLA.4
Plaintiff’s argument based on the lack of discovery completion
is equally unpersuasive.
Defendant filed its motion after the
plaintiff failed to identify any experts by January 31, 2012
deadline.5
Although fact discovery was still pending at the time
the
was
motion
filed,
the
plaintiff’s
opposition
was
filed
approximately two weeks before the March 30, 2012 deadline, and the
plaintiff has not supplemented her opposition since that time.
4
See: Reed v. Biomet Orthopedics, Inc., 318 Fed.Appx. 305
(5th Cir.. 2009); Broussard v. Procter & Gamble Co., 517 F.3d. 767
(5th Cir. 2008); and Brown v. Caterpillar, Inc., 54 Fed.Appx 794
(5th Cir. 2002).
5
Record document number 11.
5
Plaintiff’s request to extend
Thus, the then-unexpired discovery deadline is of no consequence.
Because the plaintiff has not demonstrated that summary judgment
would be procedurally improper under the present circumstances, the
substantive issues of defendant’s motion will be addressed.
In her opposition, the plaintiff relied solely on the sequence
of events to support her claim, specifically the development of her
the infection after the device was implanted.
While this fact is
undisputed, it cannot support more than a speculative inference of
causation, and then only an inference that the infection was caused
by something related to the surgery.
followed
the
surgery
cannot
The fact that the infection
reasonably
support
finding
that
defendant’s device caused the infection, much less finding that the
defendant’s device was defective and that any defect was present
when the device left the defendant’s control.6
Plaintiff failed to set forth any substantive evidence, expert
or factual, to show that the device was unreasonably dangerous
under
LPLA
standards.
With
respect
to
the
composition
or
construction of the device, the plaintiff did not provide any
factual evidence to show 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
6
The record contains evidence submitted by the defendant to
defeat an inference of causation. See record document number 32,
exhibits A and B.
6
same manufacturer.”7
Because this case involves a medical device,
the plaintiff needed expert evidence to establish that the device
was unreasonably dangerous. Subjects such as the composition,
design, testing and product characteristics of such a medical
device
“require
biochemistry
sophisticated
which
are
knowledge
outside
the
on
average
topics
such
person’s
as
common
understanding.”8
Plaintiff also failed to support her inadequate warning and
express
warranty
claims.9
“To
successfully
maintain
a
failure-to-warn claim under the LPLA, a plaintiff must demonstrate
that the product in question has a potentially damage-causing
characteristic and that the manufacturer failed to use reasonable
care to provide an adequate warning about this characteristic.”10
Plaintiff cannot even identify either a potentially damage-causing
characteristic of the device or a relevant warning, much less
provide corroborating evidence.
Plaintiff cannot solely rely on
conclusory allegations of an inadequate warning to satisfy her
7
Stahl, 283 F.3d at 261.
8
Dykes v. Johnson & Johnson, 2011 WL 2003407, citing,
Sheridan v. Merck & Co., Inc., 2003 WL 22902622, 2 (E.D.La. Dec. 8,
2003).
9
Plaintiff did not
9:2800.56 in her petition.
10
allege
Stahl, 283 F.3d at 264.
7
a
design
defect
under
R.S.
burden under the LPLA.11
Plaintiff’s unsubstantiated claims of the defendant’s failure
to conform to an express warranty is further defeated by her
deposition
testimony
establishing
literature concerning the device.12
that
she
did
not
read
any
Thus, the plaintiff cannot
establish that an express warranty issued by the defendant induced
her to have the device surgically implanted.
Plaintiff has failed to set forth specific facts showing the
existence of a genuine issue of material fact concerning the
existence
of
an
unreasonably
dangerous
characteristic
of
the
defendant’s hip replacement device, an inadequate warning regarding
the device, or breach of an express warranty.
Therefore, summary
judgment for the defendant is appropriate.
After this motion was filed the plaintiff moved for a stay of
further proceedings in the case pending completion of medical
review panel proceedings.
For all of the reasons argued by the
defendant in its opposition memorandum, the plaintiff’s motion to
stay has no merit.
The motion itself is untimely, and the purpose
of the motion is to delay ruling on the defendant’s summary
judgment motion until the plaintiff can join non-diverse defendants
11
“A ‘mere allegation of inadequacy’ is insufficient for a
plaintiff to survive summary judgment on a failure-to-warn claim.”
Stahl, 283 F.3d at 264-5, citing, Anderson v. McNeilab, Inc., 831
F.2d 92, 93 (5th Cir.1987).
12
Record document
deposition, p. 74.
number
8
21-3,
Exhibit
A,
plaintiff’s
which would cause the case to be remanded.
Further delaying
resolution of the plaintiff’s claims against the defendant while
she
proceeds
with
accomplish nothing.
a
medical
malpractice
panel
review
will
The medical malpractice review panel will not
decide whether the defendant’s device is unreasonably dangerous,
and the plaintiff has not shown that the doctors who treated her
are necessary parties in this case.
Conclusion
Accordingly, the Motion for Summary Judgment filed by the
defendant Stryker Corporation is granted and the Motion to Stay
Proceedings and to Statistically Close Case Pending Completion of
Medical Review Panel Proceedings filed by the plaintiff is denied.
Baton Rouge, Louisiana, April 19, 2012.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
9
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