Vincent v. Sofamor Danek NE ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31415
Summary Calendar
JOSEPH I. VINCENT,
Plaintiff-Appellant,
VERSUS
SOFAMOR DANEK NEVADA, INC.,
successor-in-interest to Timesh, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(98-CV-621-B)
October 24, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM*
Plaintiff-Appellant Joseph I. Vincent (“Appellant”) appeals
the district court’s grant of summary judgment for Defendant-
Appellee Sofamor Danek Nevada, Inc. (“Appellee”), on Appellant’s
products liability claims brought under the Louisiana Products
Liability Act, 3B LA. REV. STAT. ANN. §§ 9:2800.51 - 2800.59 (West
*
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this opinion should not be published and is not precedent except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.
No. 99-31415
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1997). Because we find that there are no genuine issues of
material fact relating to Appellant’s claims, we AFFIRM.
BACKGROUND
This action arises out of the implantation and the subsequent
denting of Timesh®, a titanium mesh cranial plating system. Dr.
Frank Culicchia implanted Timesh into Appellant’s skull via a
cranioplasty, a skull surgery procedure by which skull defects
caused by trauma, tumor, or infection are repaired, to cover a
portion of Appellant’s skull that was surgically removed because of
a tumor. Five months after the cranioplasty, Appellant allegedly
struck the right side of his head on the corner of a fuse box,
causing a dent in the surgically-implanted Timesh®. Appellant did
not suffer any injury to his skull or brain as a result of the
dent. Because he was fearful that a larger blow to the same spot
would cause significant damage, he opted to have the Timesh®
removed.
Appellant’s claims against Appellee alleged that the Timesh®
violated the LPLA §§ 9:2800.56 and 2800.57 as unreasonably
dangerous in design and because of inadequate warning. After oral
argument, the district court granted summary judgment for Appellee
on these claims because there was no evidence of an alternative
design and because there was adequate warning concerning the
flexibility and malleability of the Timesh.
DISCUSSION
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Summary judgment is proper if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine dispute as to any
material fact and that the moving party is entitled to judgment as
a matter of law." FED. R. CIV. P. 56(c). “A summary judgment
ruling is reviewed de novo, applying the same criteria employed by
the district court.” Theriot v. Danek Med., Inc., 168 F.3d 253,
255 (5th Cir. 1999).
Under the LPLA, there are four theories under which a
plaintiff may demonstrate that a product is defective. Before the
district court, Appellant alleged only two of them: (1) that the
product was defective in design, and (2) that the product was
unreasonably dangerous due to inadequate warning. However,
Appellant has abandoned the first claim on appeal, thus our review
is limited to Appellant’s inadequate warning claim. Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir.) ("An appellant abandons all
issues not raised and argued in its initial brief on appeal."
(emphasis omitted)), cert. denied, 513 U.S. 868 (1994).
Under the LPLA,
[a] product is unreasonably dangerous because an adequate
warning about the product has not been provided if, at
the time the product left its manufacturer’s control, the
product possessed a characteristic that may cause damage
and the manufacturer failed to use reasonable care to
provide an adequate warning of such characteristic and
its danger to users and handlers of the product.
3B LA. REV. STAT. ANN. 9:2800.57A. However, the LPLA also provides
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that a manufacturer is not required to provide an adequate warning
about its product when “[t]he user or handler of the product
already knows or reasonably should be expected to know of the
characteristic of the product that may cause damage and the danger
of such characteristic.” Id. 9:2800.57B(2). Further, under
Louisiana’s “learned intermediary doctrine” concerning medical
devices, a plaintiff alleging an inadequate warning claim must show
that the defendant failed to warn the physician--the learned
intermediary--of the risk associated with the use of the particular
medical device not otherwise known to the physician and that such
failure to warn was both a cause-in-fact and a proximate cause of
the plaintiff’s injury. Willett v. Baxter Int’l, Inc., 929 F.2d
1094, 1098-99 (5th Cir. 1991).
Under this doctrine, summary judgment was proper because
adequate warning was not necessary under § 2800.57B(2). Dr.
Culicchia testified that the Timesh® was flexible, malleable, and
susceptible to denting when subject to sufficient force.
Appellee’s product literature plainly states that the Timesh®,
which is a thin metal mesh plate made of “malleable” titanium, “can
easily be bent into any conceivable shape without cracking.” 2 R.
at 327. Dr. Culicchia testified that he knew these characteristics
of Timesh and that it could easily be bent or shaped. Appellant’s
argument that it was not obvious that an “insignificant” blow to
the Timesh® would cause a dent is without any merit. Simply
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stated, it is patently obvious, even to a reasonable person, that
a thin, metal mesh plate could dent with “insignificant” force,
including force from striking the corner of a metal fuse box. Dr.
Culicchia knew or should have known that such force could cause a
dent in the Timesh plate, and therefore Appellee did not have to
provide any warning to Dr. Culicchia about such possibility. See
§ 2800.57B(2). For these reasons, the judgment of the district
court is
AFFIRMED.