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Landry v. Nuvasive Inc.

United States District Court, W.D. Louisiana, Lafayette Division

March 14, 2018

Landry et al
Nuvasive Inc. et al



         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. 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 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.

         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 ...

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