Hornbeck v. Danek Medical Inc ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-30966
Summary Calendar
_________________
CALVIN HORNBECK,
Plaintiff-Appellant,
versus
DANEK MEDICAL, INC.; ET AL.,
Defendants,
DANEK MEDICAL, INC.; SOFAMOR-DANEK
GROUP, INC.; SOFAMOR, INC.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-2559)
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July 5, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Concerning the summary judgment awarded Danek Medical, Inc.,
and the other defendants, at issue are whether the pedicle screw
device sold by Danek was defective in design; and whether Danek had
adequately warned the treating physician.
Calvin Hornbeck had spinal fusion surgery in October 1992.
His physician used Danek’s product to help successfully achieve
fusion. After surgery, Hornbeck continued to have severe pain and
numbness in his back and legs. In September 1993, his doctor
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
removed Danek’s product from the left side of Hornbeck’s spine.
Two years later, another doctor removed it from the right side.
Hornbeck contends that Danek’s product is defective under the
Louisiana Product Liability Act (LPLA), LA. REV. STAT. ANN. §§
9:2800.51-.59 (West 2000). “Under the LPLA, there are four
theories under which a plaintiff may demonstrate that a product is
defective.” Theriot v. Danek Medical, Inc., 168 F.3d 253, 255 (5th
Cir. 1999). Hornbeck claims two: (1) the product is defective in
design; and (2) the product was unreasonably dangerous, due to
inadequate warning.
For a defective design claim, pursuant to LA. REV. STAT. ANN. §
9:2800.56 (West 2000), Hornbeck must demonstrate that an
alternative design exists. Instead, he claims alternative methods
of treatment should have been used.
For the failure to provide adequate warning claim, and
“[b]ecause this case involves a medical product, the learned
intermediary doctrine applies”. Id. at 256. Under this doctrine,
Danek must inform Hornbeck’s doctor, the learned intermediary, of
the risks of the product.
Hornbeck’s failure to warn claim is based on the following
assertions: the product’s labeling was inadequate, because it only
applied when the product was not used for a pedicle screw implant;
the product was inadequately tested; the doctor was not informed
that the product was not FDA approved; and the product was over-
promoted.
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Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law”. FED. R. CIV. P. 56(c). We
review a grant of summary judgment de novo, applying the same
criteria as the district court. E.g., Conkling v. Turner, 18 F.3d
1285, 1295 (5th Cir. 1994).
The district court held the design defect claim failed,
because (1) Hornbeck had not identified alternative designs, and
(2) alternative methods of treatment are not alternative designs.
See Theriot, 168 F.3d at 255-56. It held the failure to warn claim
failed, because Hornbeck’s doctor was clearly aware of the “risks
and possible implications involving” the pedicle screw instrument.
Essentially for the reasons stated by the district court, the
summary judgment was proper. See Theriot, 168 F.3d at 255-56;
Hornbeck v. Danek Medical, Inc., No. 96-CV-2559 (W.D. La. 5 Aug.
1999).
AFFIRMED
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