United States District Court, E.D. Louisiana
RANDY A. ROBERTS, SR., ET AL.
JOHNSON & JOHNSON, INC., ET AL.
ORDER AND REASONS
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
FACTS AND PROCEDURAL HISTORY
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 Defendants' device is defective and brings
product liability claims against them.
FACTUAL AND LEGAL FINDINGS
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). A
genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmovant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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).
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, depositions, interrogatory responses, admissions,
or other evidence to establish a genuine issue.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
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).
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 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).
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 are not liable for
any injuries that the Plaintiff suffered because they are not
the manufacturers of the device at issue.
 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 ...