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Barber v. Spinal Elements

United States District Court, E.D. Louisiana

August 5, 2019


         SECTION “R” (3)



         Before the Court is defendant Spinal Elements' unopposed motion for summary judgment.[1] Because plaintiff cannot prove essential elements of his claims, the Court grants the motion.

         I. BACKGROUND

         This is a product liability case. Plaintiff Shane Barber underwent Anterior Lumbar Interbody Fusion on his lumbosacral joint on May 19, 2015.[2] The procedure involved placing a Zeus #14 Cage, a product manufactured by defendant, in the plaintiff's lower back.[3] The surgeon who performed the surgery secured the cage with, among other things, an orthopedic screw.[4] The screw was manufactured by third party Synthes.[5]After the surgery, plaintiff continued to feel pain in his back.[6] He sought treatment for this pain on multiple occasions.[7] His doctor determined that the screw manufactured by Synthes had broken and that this fracture was causing plaintiff's pain.[8]

         On June 11, 2018, plaintiff filed a petition for damages in Louisiana state court.[9] On July 23, 2018, defendant removed the action to this Court on the basis of diversity jurisdiction.[10] On July 1, 2019, defendant filed the instant motion for summary judgment asserting that plaintiff had failed to meet his burden on any of his claims.[11] Plaintiff did not respond to the motion for summary judgment. In addition, plaintiff's deadline to make expert disclosures was June 14, 2019.[12] Plaintiff has failed to make any such disclosures.[13]


         Summary judgment is warranted when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the 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 merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).


         Plaintiff alleges that defendant is liable to him under the Louisiana Products Liability Act (LPLA). The LPLA provides that a manufacturer “shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La. R.S. 9:2800.54(A). A product is unreasonably dangerous for the purposes of the statute “if and only if” it is unreasonably dangerous (1) in construction or composition, (2) in design, (3) because of inadequate warning, or (4) because of nonconformity to an express warranty. Id. at 9:2800.54(B)(1-4). Thus, the LPLA limits plaintiffs to four theories of recovery: construction or composition defect, design defect, inadequate warning, and breach of express warranty. Plaintiff's complaint includes allegations directed toward each of these theories.[14]

         To establish a claim for defective construction or composition, a plaintiff must establish that, “at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.” La. R.S. 9:2800.55. A claimant must show “not only what a manufacturer's specifications or performance standards are for a particular product, but how the product in question materially deviated from those standards so as to render it unreasonably dangerous.” Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 311 (5th Cir. 2017) (internal quotation marks omitted). A claimant must also show that the alleged defect was the cause-in-fact of his injury, as well as the “most probable cause.” See Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994).

         The record does not include any information regarding defendant's manufacturing specifications. There is no evidence that the cage manufactured by the defendant was defective, or that it caused any harm to the plaintiff. To the contrary, plaintiff's medical records indicate that the cage “appears in good position” despite the broken screw.[15] Plaintiff's treating physician informed plaintiff that “as a family medicine physician” he was “not qualified . . . to speculate on why the screw may have broken.”[16]Plaintiff has not come forward with any other expert opinion identifying defendant's product as the cause of the broken screw. Indeed, defendant has offered an opinion by Dr. John Logan, the orthopedic surgeon who performed plaintiff's surgery to insert the cage and screw, stating that the cage “is not the cause of orthopedic screw fracture.”[17] There is thus no evidence establishing a defect in construction or causation.

         To prove an inadequate warning claim under the LPLA, plaintiff must demonstrate “(1) that the defendant failed to warn the physician of a risk associated with the use of the product, not otherwise known to the physician, and (2) that the failure to warn the physician was both a cause in fact and the proximate cause of plaintiff's injury.” Willet v. Baxtern Int'l, Inc., 929 F.2d 1094, 1098 (5th Cir. 1991). The plaintiff must show that “a proper warning would have changed the decision of the treating physician, i.e., that but for the inadequate warning, the treating physician would not have used or prescribed the product.” Id. at 1099; see also Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 265 (5th Cir. 2002) (noting ...

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