United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
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
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.
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. 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
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.
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.
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 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.
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
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 ...