United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA, UNITED STATES MAGISTRATE JUDGE.
pending is the motion for summary judgment (Rec. Doc. 17),
which was filed on behalf of the defendant, B. Braun Medical,
Inc. The motion is opposed. (Rec. Doc. 21). The motion was
referred to the undersigned Magistrate Judge for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of the court.
Considering the evidence, the law, and the arguments of the
parties, and for the reasons fully explained below, it is
recommended that the motion be denied as premature.
complaint, the plaintiff alleged that, on August 22, 2015,
she was a patient at Lafayette General Medical Center and
underwent an epidural anesthesia procedure in preparation for
the birth of a child. She alleged that Dr. Michel E. Heard,
Jr. was the anesthesiologist who performed the procedure and
that Dr. Heard administered anesthetic medication through a
Perifix FX Springwound Epidural Catheter, which was allegedly
manufactured, marketed, and distributed by the defendant, B.
Braun Medical Inc. The plaintiff further alleged that, during
the epidural procedure, Dr. Heard attempted to withdraw the
epidural catheter from 5 cm to 4 cm through the Touhy needle,
at which time the tip of the catheter sheered, leaving a
fragment of the catheter within the epidural space at the
L4-5 level of the plaintiff's spine. The plaintiff will
allegedly require surgery to remove the catheter fragment
from her spine.
plaintiff filed suit against Braun in state court, and the
action was removed to this forum on the basis that the
parties are diverse in citizenship and the amount in
controversy exceeds the statutory threshold. The
plaintiff's claim against Braun is based on her
contention that the catheter was unreasonably dangerous under
the Louisiana Products Liability Act (“the
LPLA”), La. R.S. 9:2800.51, et seq.
Contentions of the Parties
support of its motion, Braun contended that the way Dr. Heard
used the catheter - by attempting to withdraw it through the
needle - was a misuse of the product, which directly
contradicted the unambiguous warning that accompanied the
catheter when it was sold to the hospital. Braun contended
that Dr. Heard's use of the catheter consequently was not
a reasonably anticipated use of the product and precluded the
plaintiff's recovery under the LPLA, since recovery is
permissible only when damages arise from a reasonably
anticipated use of the product. Braun also contended that it
had no duty to directly warn the plaintiff of the way the
catheter was to be used or to instruct the plaintiff's
physician regarding the proper use of the catheter, since Dr.
Heard was a learned intermediary and a sophisticated user of
the product. Braun further contended that, since Lafayette
General also was a sophisticated user of the product, the
hospital rather than Braun had a duty to instruct or warn Dr.
Heard with regard to the proper use of the product.
response to Braun's motion, the plaintiff contended that
summary judgment should not be entered in favor of Braun
because Dr. Heard is not a party to the litigation;
consequently, he cannot respond to the motion for summary
judgment or explain the actual procedure used during the
plaintiff's labor. At the time the plaintiff's
opposition brief was filed, a medical review panel proceeding
regarding Dr. Heard's role in causing the plaintiff's
claimed injuries had not yet been completed; therefore, he
could not yet be sued by the plaintiff.
The Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when there is no genuine dispute as
to any material fact, and the moving party is entitled to
judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the
lawsuit under the applicable governing law. A genuine issue
of material fact exists if a reasonable jury could render a
verdict for the nonmoving party.
party seeking summary judgment has the initial responsibility
of informing the court of the basis for its motion and
identifying those parts of the record that demonstrate the
absence of genuine issues of material fact. If the moving
party carries its initial burden, the burden shifts to the
nonmoving party to demonstrate the existence of a genuine
issue of a material fact. All facts and inferences are construed
in the light most favorable to the nonmoving
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by pointing out that there is insufficient
proof concerning an essential element of the nonmoving
party's claim. The motion should be granted if the
nonmoving party cannot produce evidence to support an
essential element of its claim.
Reasonably Anticipated Use
plaintiff's claims arise under the LPLA. The LPLA
provides the exclusive theories of liability under Louisiana
law against manufacturers for the damage caused by their
products. To assert a products liability action
under the LPLA, a plaintiff must establish four threshold
elements: (1) that the defendant is a manufacturer of the
product; (2) that the claimant's damage was proximately
caused by a characteristic of the product; (3) that this
characteristic made the product “unreasonably
dangerous;” and (4) that the claimant's damage
arose from a reasonably anticipated use of the product by the
claimant or someone else. A product may be unreasonably
dangerous in one of four ways: (1) construction or
composition, (2) design, (3) inadequate warning, and (4)
failure to conform to an express warranty. Here, the
plaintiffs alleged ...