United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY MAG. JUDGE
A. DOUGHTY UNITED STATES DISTRICT JUDGE
before the Court is a Motion for Summary Judgment filed by
Defendants Johnson & Johnson and Ethicon, Inc.
(“Defendants”) [Doc. No. 17]. Plaintiff Shawanna
Shepard (“Plaintiff”) has filed an opposition
[Doc. No. 25]. Defendants have filed a reply to the
opposition [Doc. No. 28]. The matter is fully briefed and the
Court is prepared to rule.
FACTS AND PROCEDURAL BACKGROUND
contends that she suffered injuries when a defective and
unreasonably dangerous PROCEED Ventral Patch (the
“surgical mesh”) was implanted during a hernia
repair surgery on December 9, 2015, at University Health
December 11, 2017, Plaintiff filed suit against Defendants,
alleging that they are liable for her injuries as the
developers, manufacturers, and distributors of the defective
surgical mesh. On December 14, 2018, Defendants filed this
Motion for Summary Judgment in which they contend
Plaintiff39;s claim is time-barred under Louisiana law.
LAW AND ANALYSIS
judgment “shall [be] grant[ed] . . . if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
moving party can meet the initial burden, the burden then
shifts to the nonmoving party to establish the existence of a
genuine issue of material fact for trial. Norman v.
Apache Corp., 3d 1017');">19 F.3d 1017, 1023 (5th Cir. 1994). The
nonmoving party must show more than “some metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). In evaluating the evidence tendered by the
parties, the Court must accept the evidence of the nonmovant
as credible and draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255.
alleges that she sustained damages because Defendants39;
defective surgical mesh was implanted during her hernia
repair surgery on December 9, 2015, causing her pain, a
hernia recurrence, and requiring additional surgery.
Defendants contend that Plaintiff39;s medical records
establish that these injuries manifested no later than
October 4, 2016, yet Plaintiff waited until December 11,
2017, to file this lawsuit. Thus, Defendants contend that
Plaintiff39;s lawsuit is time-barred by Louisiana Civil
Code article 3492, which states: “Delictual actions are
subject to a liberative prescription of one year. This
prescription commences to run from the day injury or damage
support of their argument, Defendants offer Plaintiff39;s
medical records and deposition testimony. Her October 4, 2016
medical record states that she noted “pain” and
reported being “worried because she had an umbilical
hernia repair that she thinks is coming back because when she
sits up she has a bulge around her umbilical area that is
mildly tender.” [Doc. No. 17-3, p. 2');">p. 2]. During that same
visit, her treating physician noted a “recurrence of
umbilical hernia” with a plan of care, including a
“referral to surgery clinic.” [Id., p.
her deposition, she confirmed that by October 20, 2016, she
believed she sustained injuries because her December 9, 2015