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Shepard v. Johnson & Johnson

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

February 15, 2019

SHAWANNA SHEPARD
v.
JOHNSON & JOHNSON, ET AL.

          MARK L. HORNSBY MAG. JUDGE

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. FACTS AND PROCEDURAL BACKGROUND

         Plaintiff 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 Shreveport.

         On 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 Plaintiff's claim is time-barred under Louisiana law.

         II. LAW AND ANALYSIS

         A. Summary Judgment

         Summary 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.

         If the 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.

         B. Prescription

         Plaintiff alleges that she sustained damages because Defendants' 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 Plaintiff'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 Plaintiff'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 is sustained.”

         In support of their argument, Defendants offer Plaintiff'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. 4].

         During her deposition, she confirmed that by October 20, 2016, she believed she sustained injuries because her December 9, 2015 ...


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