Landry et al v. NuVasive Inc et al

Filing 86

MEMORANDUM RULING re 69 MOTION for Summary Judgment filed by NuVasive Inc. Signed by Magistrate Judge Carol B Whitehurst on 3/14/2018. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Landry et al
versus

Civil Action No. 6: 16-cv-00192
Magistrate Judge Carol B. Whitehurst

Nuvasive Inc et al

By Consent of the Parties
MEMORANDUM RULING

Pending before the Court is a Motion for Summary Judgment filed by
Defendant, NuVasive, Inc. (“NuVasive”) [Rec. Doc. 69], Plaintiffs, Thomas D.
Landry and Cheryl Landry’s (collectively “Plaintiffs”), Memorandum In Opposition
[Rec. Doc. 75] and NuVasive’s Reply thereto [Rec. Doc. 83]. For the reasons that
follow the Court will GRANT IN PART NuVasive’s Motion for Summary Judgment
as to the prescription issue and dismiss Plaintiffs’ action with prejudice.
I. Factual Background
In a May 27, 2014 surgery, Dr. Jason Cormier utilized a “spinal fixation
system” (the “System”) to fuse Thomas D.Landry’s (“Landry”) L2-S1 vertebra. R.
47 at ¶5. In November of 2014, Landry began hearing noises coming from his back
that he described as “sounding like a rocking chair; squeak, squeak, squeak, squeak.
And it wasn’t just me that could hear it, anybody around me could hear it.” R. 69-3,
Landry’s Depo., pp. 3-4. Additionally, his“back began to hurt more and more”during
this time. R. 69-4, Response to Interrog No. 2.
On December 10, 2014, Landry consulted his primary care physician, Dr.

Paul Stringfellow. Id. Dr. Stringfellow heard the squeaking sound Landry’s back
made when he was walking, sitting down, and rocking back and forth. R. 69-3,
pp. 4-5. Dr. Stringfellow suspected that the squeaking sound –which he was able
to hear without a stethoscope–came from the hardware in Landry’s back. R. 69-5,
Depo. of Stringfellow, pp. 2-3. Dr. Stringfellow called Dr. Cormier’s office in
Plaintiff’s presence to describe the squeaking sounds emanating from Landry’s back
and recommend that Dr. Cormier listen to Plaintiff’s back because Dr. Stringfellow
suspected the sound might involve his prior back surgery. Id. at p. 4;R. 69-3, p. 5.
Following

Dr.

Stringfellow’s

recommendation, Plaintiff was examined on

December 24, 2014, by Dr. Cormier’s nurse practitioner, Lauren Choate, examined
Landry who noted that the pain in his lower back has been increasing daily. Choate
scheduled Landry’s appointment with Dr. Cormier on January 12, 2015. Plaintiff’s
deposition testimony about his medical examination stated in part:
In January 2015, I went to Dr. Cormier’s office and his staff was
shocked by the sound emanating from my back. Based off of the
noise and the increased pain, Dr. Cormier determined surgery was
needed. Dr. Cormier suspected hardware failure, and this was the
reason for the second surgery.

R. 69-4, Response no. 12. On January 12, 2015, Plaintiff gave written consent for
Dr. Cormier to surgically remove and replace the System. R. 69-3, p. 8-10. Dr.

2

Cormier’s assessment plan stated, “[w]e plan for reexploration of L2 through S1
followed by removal of hardware followed by replacement of instrumentation from
L2 to S1 to stabilize this.” R. 75-5 (emphasis added). As noted on the consent form,
Plaintiff understood that Dr. Cormier recommended this surgery because he
suspected there was a problem with the System. Id. at pp.7, 14. Later that day,
Plaintiff posted on his Facebook account:
So, I have missed my main goal for the year. I will be having another
surgery at the end of this month. This time to replace two rods in
my back. My back has been squeaking for a while, as if it were a
rocking chair and has been getting worse. One more time under the
knife.
Id. at p. 15.
On January 28, 2015, Dr. Cormier performed the surgery on Landry and
removed the System. R. 1-1, ¶ IV. Plaintiffs sued NuVasive and Dr. Cormier on
February 10, 2016, alleging in part that there was a manufacturing defect in the
NuVasive System and that Dr. Cormier committed medical malpractice. R. 1-1.
II. Procedural Background
Nuvasive filed the instant motion for summary judgment on December 28, 2017
moving the Court to dismiss this action because (1) Plaintiffs’ LPLA claim is
prescribed and (2) Plaintiffs cannot prove that the System was defective under the
LPLA. Nuvasive contends in its motion that Plaintiffs have not disclosed any expert
3

witnesses or other witnesses who are competent to testify in support of their
LPLA manufacturing defect claim. Nor have Plaintiffs conducted any discovery in
this case. On April 12, 2017, the Court entered a Scheduling Order that required
Plaintiffs to disclose expert witnesses and provide their Rule 26 reports by November
16, 2017. R. 60. Pursuant to the Scheduling Order the discovery deadline was October
10, 2017 and the dispositive motion deadline was February 22, 2018. Id.
Plaintiffs filed a memorandum in opposition to Nuvasive’s motion for summary
judgment contending that Landry “was not aware of the facts giving rise to suspicion
that a tort may have occurred against him until his January 28, 2015 surgery confirmed
the screws were loose and the hardware appeared defective.” R. 75. Plaintiffs cite
Landry’s December 11, 2014 appointment in which Lauren Choate, Dr. Cormier’s
nurse practitioner, diagnosed the noises from Landry’s back as “crepitus” and referred
him to physical therapy. They further contend that at the January 12, 2015
appointment with Dr. Cormier in which Landry consented to surgery to remove and
replace the System, Dr. Cormier stated that “imaging did not demonstrate any
loosening of the hardware” and that the surgery was to “explore and ensure that the
hardware did not fail.” R. 75-6. Dr. Cormier further stated that because Landry “had
significant pain that was also suspicious for hardware failure” the surgery was
performed. Id.
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At the time of filing their opposition to the motion, Plaintiffs filed a motion to
continue the trial of this matter, R. 73, and a motion to continue the hearing on the
instant motion pursuant to Rule 56(d) in order to “conduct additional discovery related
to the relevant elements of the manufacturing defect claim.” R. 74. In these motions
Plaintiffs contend that while they “have sufficient information to address the
prescriptive issue,” they need additional time to “prove essential elements of he LPLA
manufacturing defect claim.” R. 74, pp. 1-2. Plaintiffs represent the need to conduct
the following discovery: (1) Interrogatories, requests for production of documents and
depositions related to sales representatives; (2) Interrogatories, requests for production
of documents and depositions related to prior claims and lawsuits about the hardware
at issue; (3) Interrogatories, requests for production of documents and depositions
related to product design, design standards and procedures; (4) depositions of
Nuvasive corporate representatives regarding product history and performance
standards; (5) depositions of Nuvasive product engineers or scientists related to
product design, manufacturer’s specifications or performance standards; (6) deposition
of Dr. Cormier; (7) inspection of the hardware; (8) deposition of expert witness Troy
D. Drewry, Medical Device Expert Witness for Product Development and Engineering
to discuss issues related to the hardware and hardware malfunction. Counsel for
Plaintiffs states he was only retained in May 2017 and was prevented from complying
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with the Scheduling Order deadlines established on April 12, 2017 because he
“worked on a MDL Vaginal Mesh Case and . . . a wrongful death mediation” in Texas
and had a number of personal issues—essentially, that he was too busy with other
matters.
The Court conducted a telephone conference with counsel for the parties on
February 20, 2018. The Court stated that, based on the instant motion for summary
judgment pending since December 28, 2017, before an “unassigned district judge,” the
Court will consider only the motion’s prescription issue as quickly as possible.
Because of the Court’s own motion and trial docket, however, it must defer ruling on
the remainder of the motion. The Court indicated that in the event Plaintiffs’ case
survived prescription, the Court would then consider the motion to continue the trial
and how to equitably resolve Plaintiffs’ failure to comply with the Court’s Scheduling
Order.1
III. Law and Analysis
A. Legal Standard
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

1

After the Court’s order, on March _, 2018, the parties elected to consent to trial by this
Court. As previously represented to the parties, the Court will first consider the prescription issue
and if necessary will address Plaintiff’s failure to comply with the Court’s order.
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the party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (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. Anderson, 477 U.S. at 252. This burden is not
satisfied by some metaphysical doubt as to the material facts, conclusory allegations,
unsubstantiated assertions or only a scintilla of evidence. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir.1994). In resolving the motion the court must review all
the 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.
Anderson, 477 U.S. at 255.The court may not make credibility findings, weigh the
evidence, or resolve factual disputes. Id.; Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000). Hearsay evidence as well as uncertified, unsworn
documents are not appropriate for consideration in ruling on a summary judgment
motion. Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th
Cir.1987).
B. Prescription
The substantive law identifies which facts are material. Love v. National
Medical Enterprises, 230 F.3d 765, 770 (5th Cir.2000). The law applicable to the
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plaintiff's claims is the LPLA and the applicable one year prescriptive period in La.
Civ.Code art. 3492.
Claims brought under the LPLA are governed by the one year prescriptive
period for delictual actions in Article 3492 which provides in pertinent part: “Delictual
actions are subject to a liberative prescription of one year. This prescription
commences to run from the day injury or damage is sustained.” Although prescription
begins to run from the day injury or damage is sustained, damage is considered to have
been sustained only when it has manifested itself with sufficient certainty to support
accrual of a cause of action. Cameron Parish School Board v. ACandS, Inc., 687 So.2d
84, 88 (La.1997); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th
Cir.1995); Jones v. Honeywell Int. Inc., 295 F.Supp.2d 652 (M.D.La.2003). In cases
where injury or damage is not immediately apparent, “prescription will begin to run
when the damage is sustained. However, contra non valentem will suspend the running
of the prescriptive period until the claimant knows or should reasonably know that he
has suffered damages.” Brown, 52 F.3d at 527; Grenier v. Medical Engineering Corp.,
243 F.3d 200, 204 n. 2 (5th Cir.2001) (“the cause of action accrues when damages are
first suffered, but the prescription period does not run until such time as a reasonable
plaintiff would become aware of the connection between her injured condition and the
defendant’s tortious actions”) (citing Brown, 52 F.3d at 527); Boyd v. B.B.C. Brown
8

Boveri, Inc., 656 So.2d 683, 686 (1995).
In its motion, NuVasive asserts that “at the very latest” prescription began to run
on January 12, 2015 when Landry gave written consent for Dr. Cormier to surgically
remove and replace the System. Citing Landry’s deposition testimony, NuVasive
contends that also on that date Dr. Cormier recommended the surgery because he
suspected there was a problem with the System. In his deposition Landry confirmed
Dr. Cormier’s notes from his January 12, 2015 examination explaining Plaintiff’s need
for the surgery—“I think it is certain – certainly related to [his] instrumentation. We
plan for re-exploration of L2 to S1 followed by removal of hardware, followed by
replacement of instrumentation from L2 to S1 to stabilize this...” R. 69-3, p. 7.
The contra non valentem principle, provides that prescription begins to run
when a plaintiff has “actual or constructive knowledge of facts indicating to a
reasonable person that he or she is the victim of a tort and the date on which the
tortious act actually produces damages.” Bailey v. Khoury, 891 So. 2d 1268,
1284 (La. 2005)); Guidry, 418 F. Supp. 2d at 841-42 (Plaintiff’s cause of action
under the LPLA accrued and prescription began to run in November 2001, when her
alleged injury and damage from gastrointestinal problems first manifested and
when she “became aware of the connection between her condition and the
defendant’s product . . . . Plaintiff’s continued symptoms through March 2002 and
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subsequent diagnosis of steatohepatitis do not support a competing inference or
contrary conclusion.”); McNeely v. Danek Medical, Inc., 1999 WL 1117108, at *1
(W.D.La.,1999). As the Fifth Circuit explained, “the prescriptive period commences
when there is enough notice to call for an inquiry about a claim, not when an inquiry
reveals the facts or evidence that specifically outline the claim.” Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 300 (5th Cir. 1999). In other words, “[i]t is not the rule
in Louisiana . . . that the prescriptive period does not begin until conclusive,
dispositive proof of a causal connection between the suspected injury and the
putative tortfeasor is established.” Carter v. Matrixx Initiatives, Inc., 391 F.App'x 343,
345-46 (5th Cir. 2010). Indeed, in cases involving the effects of medical
products, “it is the plaintiff/patient’s knowledge of the connection between their
alleged injuries and damages and the medical product that is key to the accrual of the
cause of action.” Peterson v. C.R. Bard, Inc., 2015 WL 4459912, at *2
(M.D.La.,2015).
Nuvasive contends that the McNeely decision is directly on point. In McNeely,
the plaintiff’s surgeon informed him in May of 1992, and again in August of 1992,
that his symptoms could be related to the screw system implanted during a spinal
fusion. In March of 1993, plaintiff felt a snap in his lumbar area and subsequent
x-rays showed that one of the implants had broken. The plaintiff filed his suit
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on December 27, 1993.

In finding the LPLA claim prescribed, the court stated:

It is uncontroverted that Mr. McNeely had the requisite information
as early as May 1992, when Dr. Albright informed him that his
post-surgical difficulties could be related to the PAS. Mr. McNeely
was again informed of the potential problems with the PAS in August
1992. In both instances, Dr. Albright discussed potential problems with
the PAS and went so far as to recommend removal of the PAS.”
McNeely, at * 2. Thus, despite filing his lawsuit within one year of the date the
x-ray showed that the implant was broken, the court held that the plaintiff’s LPLA
claim was prescribed because his physician informed him more than one year
before he filed suit that his symptoms could be related to the implant.
Plaintiffs argue that McNeely is distinguishable from this action because he was
told by his surgeon that the PAS system “could be causing his symptoms” and he
recommended surgery to remove the hardware which McNeely declined. The Court
agrees that the facts of McNeely are similar to Landry’s situation. Here, as in
McNeely, the undisputed facts provide that Landry was aware of squeaking and
increasing paid in his back since November, 2014. He consulted with and was
examined by his treating physician, Dr. Stringfellow, in early December, 2014. After
examining him, Dr. Cormier informed Landry more than one year before Plaintiffs
filed suit that he believed the unusual squeaking sounds and increased pain in
Landry’s back were related to the System and recommended surgery to remove and

11

replace the System. On January 12, 2015, Landry consented in writing to Dr.
Cormier’s surgery recommendation to remove and replace the System. Also on that
date, Landry posted on his Facebook account that he was having surgery to “replace
two rods in my back. My back has been squeaking for a while, as if it were a rocking
chair and has been getting worse.”
Pursuant to the Fifth Circuit jurisprudence cited in the foregoing, the fact that
the January 28, 2015 surgery allegedly confirmed Dr. Cormier’s January 12, 2015,
belief that there was a problem with the System is of no import. The prescriptive
period commenced when Landry had enough notice to call for an inquiry about his
claim—when he signed the Consent to remove and replace the System on January 12,
2015—not when the January 28, 2015 surgery confirmed the facts or evidence of his
claim. See Luckett, 171 F.3d at 300; Carter, 391 F.App'x at 345-46.
IV. Conclusion
Based on the foregoing analysis, the Court will GRANT Motion for Summary
Judgment filed by Defendant, NuVasive, Inc. (“NuVasive”) [Rec. Doc. 69] and
DISMISS WITH PREJUDICE Plaintiffs, Thomas D. Landry and Cheryl Landry’s ,
claims under the Louisiana Products Liability Act as prescribed.
THUS DONE AND SIGNED, March 14, 2018, at Lafayette, Louisiana.