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Shepard v. Johnson & Johnson

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

October 29, 2019

SHAWANNA SHEPARD
v.
JOHNSON & JOHNSON, ET AL.

          MARK L. HORNSBY MAG. JUDGE.

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE.

         This is a products liability action brought by Plaintiff Shawanna Shepard (“Shepard”) against Defendants Johnson & Johnson and Ethicon, Inc. (“Ethicon”). Pending before the Court is Ethicon's Motion for Summary Judgment [Doc. No. 45]. Shepard did not oppose the motion.

         For the following reasons, the Motion is GRANTED, and Shepard's claims are DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         On December 9, 2015, Shepard underwent surgery by Dr. Kathryn Richardson to repair an umbilical hernia. During surgery, Ethicon's PROCEED® Ventral Patch (“PVP”) was implanted. Shepard contends that each of the Defendants is a “manufacturer” of PVP within the meaning of the Louisiana Products Liability Act (“LPLA”), La. Rev. Stat.' 9:2800.51, et seq.

         Dr. Richardson was aware that there is a chance of recurrence of the hernia, but testified that there is a lesser chance using mesh rather than performing a primary repair. [Doc. No. 45-3, Exh. A, Deposition of Dr. Kathryn Richardson, p. 30]. Shepard was advised by Dr. Richardson and also on the consent form that recurrence was a risk of hernia repair. Id. at pp. 34-35, 40, 79.

         After surgery and at the post-operative visits, Dr. Richardson did not find any infection at the site of the PVP, nor did she find any indications of erosion or extrusion of the PVP. Id. at p. 61.

         After suffering pain, in October 2016, Shepard sought medical treatment and was referred to the surgical clinic. [Doc. No. 25-4]. She had a CT scan [Doc. Nos. 25-5 & 25-6] and was then referred to Dr. Forrest Dean Griffen. A second hernia repair was performed under Dr. Griffen's supervision as attending physician. [Doc. No. 25-9]. Dr. Griffen testified that the hernia recurrence “could have occurred whether mesh [PVP] was used or not, ” and he could not “say for sure” what caused the recurrence. [Doc. No. 45-4, Exh. B, Deposition of Dr. Forrest Dean Griffen, p. 46].

         On December 11, 2017, Shepard filed suit against Ethicon in this Court.

         The case has proceeded in the ensuing two years.

         Under the applicable scheduling order, Shepard had until September 9, 2019, to identify her experts to Defendants and until September 13, 2019, to provide Defendants with her expert reports. She sought and obtained an extension of these deadlines to September 23 and 27, 2019, respectively [Doc. No. 42].

         Shepard did not produce reports from any expert by the deadline of September 27, 2019.

         On October 3, 2019, Ethicon filed the instant Motion for Summary Judgment [Doc. No. 45]. Under the Court's Notice of Motion Setting [Doc. No. 46], Shepard's opposition ...


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