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