Barber v. Spinal Elements, No. 2:2018cv06914 - Document 22 (E.D. La. 2019)

Court Description: ORDER AND REASONS: Defendant's 17 motion for summary judgment is GRANTED, as set forth in document. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 08/05/2019. (am)
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Barber v. Spinal Elements Doc. 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SHANE BARBER CIVIL ACTION VERSUS NO. 18-6914 SPINAL ELEMENTS SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant Spinal Elem ents’ unopposed m otion for sum m ary judgm ent. 1 Because plaintiff cannot prove essential elem ents of his claim s, the Court grants the m otion. I. BACKGROU N D This is a product liability case. Plaintiff Shane Barber underwent Anterior Lum bar Interbody Fusion on his lum bosacral joint on May 19, 20 15. 2 The procedure involved placing a Zeus # 14 Cage, a product m anufactured by defendant, in the plaintiff’s lower back. 3 The surgeon who perform ed the surgery secured the cage with, am ong other things, an 1 R. Doc. 17. R. Doc. 17-3 at 1 ¶ 1. Plaintiff has not filed a response to defendant’s statement of uncontested facts. The Court therefore deems the facts provided in the defendant’s statem ent adm itted. See E.D. La. L.R. 56.2. 3 Id. at 1 ¶ 2. 2 orthopedic screw. 4 The screw was m anufactured by third party Synthes. 5 After the surgery, plaintiff continued to feel pain in his back. 6 He sought treatm ent for this pain on m ultiple occasions. 7 His doctor determ ined that the screw m anufactured by Synthes had broken and that this fracture was causing plaintiff’s pain. 8 On J une 11, 20 18, plaintiff filed a petition for dam ages in Louisiana state court. 9 On J uly 23, 20 18, defendant rem oved the action to this Court on the basis of diversity jurisdiction. 10 On J uly 1, 20 19, defendant filed the instant m otion for sum m ary judgment asserting that plaintiff had failed to m eet his burden on any of his claims. 11 Plaintiff did not respond to the m otion for sum m ary judgment. In addition, plaintiff’s deadline to m ake expert disclosures was J une 14, 20 19. 12 Plaintiff has failed to m ake any such disclosures. 13 4 5 6 7 8 9 10 11 12 13 Id. Id. Id. at 2 ¶ 4; Ex. G at 10 7. Id. ¶¶ 5-6; Ex. F at 116. Id. ¶¶ 5, 7; Ex. F at 44. R. Doc. 1-1. R. Doc. 1. R. Doc. 17. R. Doc. 10 at 2. R. Doc. 17-2 at 9. 2 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went 3 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 4 III. D ISCU SSION Plaintiff alleges that defendant is liable to him under the Louisiana Products Liability Act (LPLA). The LPLA provides that a m anufacturer “shall be liable to a claimant for dam age proxim ately caused by a characteristic of the product that renders the product unreasonably dangerous when such dam age arose from a reasonably anticipated use of the product by the claim ant or another person or entity.” La. R.S. 9:280 0 .54(A). A product is unreasonably dangerous for the purposes of the statute “if and only if” it is unreasonably dangerous (1) in construction or com position, (2) in design, (3) because of inadequate warning, or (4) because of nonconform ity to an express warranty. Id. at 9:280 0 .54(B)(1-4). Thus, the LPLA lim its plaintiffs to four theories of recovery: construction or com position defect, design defect, inadequate warning, and breach of express warranty. Plaintiff’s com plaint includes allegations directed toward each of these theories. 14 To establish a claim for defective construction or com position, a plaintiff m ust establish that, “at the tim e the product left its m anufacturer’s control, the product deviated in a m aterial way from the m anufacturer’s specifications or perform ance standards for the product or from otherwise identical products m anufactured by the sam e manufacturer.” 14 R. Doc. 1-1 at 3-4 ¶ 14. 5 La. R.S. 9:280 0 .55. A claim ant m ust show “not only what a m anufacturer’s specifications or perform ance standards are for a particular product, but how the product in question m aterially deviated from those standards so as to render it unreasonably dangerous.” Ly les v. Medtronic Sofam or Danek, USA, Inc., 871 F.3d 30 5, 311 (5th Cir. 20 17) (internal quotation m arks om itted). A claim ant m ust also show that the alleged defect was the causein-fact of his injury, as well as the “m ost probable cause.” See W heat v. Pfizer, Inc., 31 F.3d 340 , 342 (5th Cir. 1994). The record does not include any inform ation regarding defendant’s m anufacturing specifications. There is no evidence that the cage m anufactured by the defendant was defective, or that it caused any harm to the plaintiff. To the contrary, plaintiff’s m edical records indicate that the cage “appears in good position” despite the broken screw. 15 Plaintiff’s treating physician inform ed plaintiff that “as a fam ily medicine physician” he was “not qualified . . . to speculate on why the screw m ay have broken.”16 Plaintiff has not com e forward with any other expert opinion identifying defendant’s product as the cause of the broken screw. Indeed, defendant has offered an opinion by Dr. J ohn Logan, the orthopedic surgeon who 15 16 Ex. H at 62. Ex. F at 116. 6 perform ed plaintiff’s surgery to insert the cage and screw, stating that the cage “is not the cause of orthopedic screw fracture.”17 There is thus no evidence establishing a defect in construction or causation. To prove an inadequate warning claim under the LPLA, plaintiff m ust dem onstrate “(1) that the defendant failed to warn the physician of a risk associated with the use of the product, not otherwise known to the physician, and (2) that the failure to warn the physician was both a cause in fact and the proxim ate cause of plaintiff’s injury.” W illet v. Baxtern Int’l, Inc., 929 F.2d 10 94, 10 98 (5th Cir. 1991). The plaintiff m ust show that “a proper warning would have changed the decision of the treating physician, i.e., that but for the inadequate warning, the treating physician would not have used or prescribed the product.” Id. at 10 99; see also Stahl v. N ovartis Pharm . Corp., 283 F.3d 254, 265 (5th Cir. 20 0 2) (noting that Louisiana follows the “learned interm ediary doctrine,” in which a m anufacturer need only warn the patient’s physician, not the patient him self, of the device’s potential harm ). The record contains no reference to a risk known by defendant that it failed to com m unicate to plaintiff’s treating physician. There is no indication that the arrangement of hardware used in the plaintiff’s case previously led 17 R. Doc. 17-7 at 1 ¶ 6. 7 to screw breakages of this kind, such that defendant should have known about this risk before surgery. Indeed, defendant has m ade the uncontroverted assertion that, of the 1,430 devices im planted since 20 12, there have been no reports of the device’s causing a fractured screw. 18 In short, there is no evidence that the cage caused the screw to break. To establish the elem ents of a design defect claim , a plaintiff m ust show that (1) There existed an alternative design for the product that was capable of preventing the claim ant’s dam age; and (2) The likelihood that the product’s design would cause the claim ant’s dam age and the gravity of that dam age outweighed the burden on the m anufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. La. R.S. 9:280 0 .56. Plaintiff has not subm itted evidence of possible alternative designs for the cage that would have lowered the risk of screw breakage. As such, plaintiff cannot show that the cage suffered from a design defect. Finally, to establish a breach of express warranty claim , a plaintiff m ust show that (1) there was an express warranty m ade by the m anufacturer about the product; (2) the express warranty induced the plaintiff to use the 18 R. Doc. 17-3 at 5 ¶ 15. 8 product; and (3) the plaintiff’s dam age was proxim ately caused because the express warranty was untrue. La. R.S. 9:280 0 .58; see also Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 20 0 2). The LPLA defines “express warranty” as “a representation, statement of alleged fact or prom ise about a product . . . that represents, affirm s or prom ises that the product . . . possesses specified characteristics or qualities or will m eet a specified level of perform ance.” La. R.S. 9:280 0 .53(6). The statute adds that “general opinion[s]” or “general praise” of a product do not qualify as express warranties. Id. Plaintiff has provided no evidence of express warranties m ade by the defendant. Absent this evidence, he cannot prevail on an express warranty claim . Because plaintiff has not responded to defendant’s m otion, the only evidence in the record on any of plaintiff’s claim s are his own interrogatory responses and deposition testim ony, which are cited by defendant. Plaintiff m ade conclusory assertions in his discovery responses that, “Dr. Deaver has opined and stated that . . . the spinal instrum entation was defective and/ or faulty and should not have failed had it been designed properly and/ or had adequate instructions been provided to the end user and/ or healthcare 9 providers.”19 At his deposition, plaintiff also testified that his treating physicians told him “that the system . . . m ade by Amendia is just a failure.”20 These statem ents do not create a m aterial issue of fact for two reasons. First, plaintiff’s statem ents are wholly conclusory. He does not identify any characteristic of the defendant’s product that was unreasonably dangerous or m echanism by which it caused his injury, which a plaintiff is required to do for any type of claim under the LPLA. Stew art v. Capital Safety USA, 867 F.3d 517, 520 (5th Cir. 20 17) (“To prevail under any theory under the LPLA, [plaintiff] m ust establish . . . [plaintiff’s injury] was proxim ately caused by a characteristic of the [product; and] this characteristic made the [product] ‘unreasonably dangerous. . . ’” (internal quotation m arks om itted)); see also Little, 37 F.3d at 10 75 (stating that conclusory allegations and unsubstantiated assertions do not create a m aterial issue of disputed fact). Second, while expert testim ony is not required in every LPLA case, “courts consistently require expert testim ony in products liability cases,” when the product or feature in question is com plex, and a laym an may not readily grasp the im plications of these features. Id. at 520 -21. A com plex m edical case such as this one requires expert testim ony. It is highly doubtful 19 20 Ex. N at 7. Ex. B. at 73. 10 that the average consum er has ever heard of the Zeus # 14 Cage, has any idea how it is constructed, or has a point of reference for what would constitute a deviation from its typical level of perform ance without expert testim ony. See Arant v. W al-Mart Stores, Inc., No. 13-220 9, 20 15 WL 1419335, at *5 (W.D. La. Mar. 26, 20 15), aff’d, 628 F. App’x 237 (5th Cir. 20 15) (holding that expert testim ony was required when the question before the jury was “not an assessment that a lay person can m ake from a m ere inspection of the product itself”). Plaintiff is not a qualified expert under Federal Rule of Evidence 70 2 because he adm its that he “do[esn]’t know anything about this m edical stuff” and that “[t]his is beyond [his] knowledge.”21 See Fed. R. Evid. 70 2 (stating that expert witnesses m ust be qualified by “knowledge, skill, experience, training, or education” and m ust have “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determ ine a fact in issue”). To the extent that plaintiff intends to relay the statements that his treating physicians made to him based on their expertise, this approach also fails. Even if this testim ony fell within a hearsay exception, it would not be adm issible because plaintiff has not presented evidence qualifying his treating physicians as experts on the issues 21 Id. at 55. 11 in this case. Plaintiff’s deadline to disclose expert witnesses has passed, and plaintiff has failed to tim ely m ake any disclosures. In addition, there is no evidence that his treating physicians have specialized knowledge of defendant’s products. As already explained, Dr. Deaver, one of plaintiff’s treating physicians, noted in plaintiff’s m edical records that “as a fam ily m edicine physician” he was “not qualified . . . to speculate on why the screw m ay have broken.”22 Even absent these obstacles, the Court cannot conclude that the opinions, as plaintiff relays them , are based on sufficient facts or data, that they are the product of reliable principles or methods, or that the witnesses have reliably applied the principles and m ethods to the facts of this case. Fed. R. Evid. 70 2. Plaintiff’s recounting of his physician’s statem ents therefore cannot be used to m eet the requirem ent that he present expert testim ony to prove his claim s. For these reasons, plaintiff’s evidence fails to create a disputed issue of m aterial fact. Plaintiff has not m ade a sufficient showing on any of his claims under the LPLA. 22 Ex. F at 116. 12 IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgment is GRANTED. Plaintiff’s claim s are DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ _5th _ _ _ day of August, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 13