JAMES T. TRIMBLE, JR., United States District Judge.
Presently before the court is a Motion for Summary Judgment [doc. 58] filed by Ethicon, et al., and directed toward the claims of the plaintiffs, Brett Hardy and Nedra Victorian Landry. This motion was filed October 17, 2001, and no opposition was filed by the plaintiff. A Notice of No Opposition was filed by the defendants on December 4, 2001 [doc. 63]. The plaintiffs then received permission from the court to file a late reply and the opposition to the summary judgment was received by the court December 7, 2001 [doc. 68]. This response included two affidavits by Rogers G. Burgess and by Frederick W. Hetzel. On December 14, Ethicon filed a Motion to Strike the Affidavits [doc. 71], which was granted by the court.
The claims of Patricia Gill were dismissed by this court in a prior ruling.
Facts
The plaintiffs brought this products liability action alleging that they suffered post-operative "infections" due to their surgeons' use in 1999 of a Vicryl suture manufactured by Ethicon. The plaintiffs also named as defendants Johnson Johnson, Ethicon's parent company, Johnson Johnson Hospital Services Corporation, Johnson Johnson Health Care Systems, Inc., Owens and Minor, Inc., and Owens Minor Medical, Inc., suture distributors.
The plaintiffs allege that the subject sutures were among the sutures subject to Ethicon's 1994 voluntary recall of Vicryl sutures due to potential contamination with microorganisms.
The plaintiffs sought to dispute these facts by submitting affidavits, but as those affidavits have been stricken by the court, the arguments presented therein cannot be considered by the court at this time. In fact, the defendants allege that the plaintiffs have not conducted any discovery in this specific case, but attempt to cite the court to information obtained in the Beaumont, Texas district court.
The defendants seek summary judgment on two grounds. First, the defendants argue that the plaintiffs lack proof of a product defect and second, the plaintiffs lack proof of proximate cause.
Law and Analysis
Rule 56(c) provides that "[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c) The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, and answers to interrogatories, admissions on file and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
The facts of this case show that in 1994, Ethicon began sterilizing Vicryl sutures through the SP-1 sterilization unit located in San Angelo, Texas. Ethicon determined that it could not provide appropriate statistical assurances of sterility as to certain lots sterilized through the SP-1 from March through May, 1994. Ethicon instituted a voluntary recall in September, 1994, of the lots of sutures sterilized through the SP-1 during this time frame. Memorial Hospital, Lake Charles, Louisiana, complied with the recall notices and returned the recalled sutures no later than October 18, 1994. The paperwork accompanying the returned sutures indicate that these were all of the suspect lot numbers in stock at Memorial Hospital at that time.
On November 10, 1994, Brett Hardy underwent right knee arthromy surgery at Lake Charles Memorial Hospital and Vicryl sutures were used during the surgery, which the plaintiffs alleged caused infection and injury.
On November 25, 1994, Nedra Victorian Landry underwent a caesarean section at Lake Charles Memorial Hospital and Vicryl sutures were used during the surgery, which the plaintiffs alleged caused infection and injury.
The defendants argue that the medical records contain no proof that the plaintiffs received recalled sutures and therefore they will never be able to establish this because Memorial's Purchasing Department did not track suture lot numbers. Additionally, Owens Minor Medical, Inc., the distributor of medical supplies to Lake Charles Memorial Hospital never maintained records of suture lot numbers that it supplied to the hospital.
The Louisiana Products Liability Act (LPLA), La.Rev.Stat. § 9:2800.51 et seq., provides that the manufacturer of a product is 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. Id. § 9:2800.54. Under the LPLA, a product is unreasonably dangerous if, inter alia, the product is unreasonably dangerous in design as provided in § 9:2800.56 or the product is unreasonably dangerous because an adequate warning about the product has not been given as provided in § 9:2800.57. LPLA § 9:2800.54(B)(2), (3). The term "reasonably anticipated use" means a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances. Id. § 9:2800.53(7).
The claimant has the burden of proving the elements of reasonably anticipated use, unreasonable dangerousness in design or lack of adequate warning, and proximate causation. Id., § 2800.54(D). Thus, the plaintiffs bear the burden of producing evidence and persuading the jury to find by a preponderance of the evidence the facts that their injuries arose from a reasonably anticipated use of the product, and that their damage was proximately caused by a characteristic of the product that rendered it unreasonably dangerous in design or by the lack of an adequate warning.
The plaintiffs cannot meet this burden because they cannot prove that the sutures they received were some of those subject to the Ethicon recall, nor can they prove that the sutures were actually contaminated. The plaintiffs cannot prove that their injuries were caused by an unreasonably dangerous product. Therefore, they cannot prevail under the LPLA.
Accordingly, summary judgment will be granted and the plaintiff's claims against all the defendants will be dismissed.
As noted by the defendants, under Louisiana law, distributors can only be liable for a defective product if they knew or should have known that the product was defective and failed to declare it. Because the court is granting summary judgment on the plaintiff's inability to prove product defect and proximate cause, the court need not address the issue of the distributors' knowledge.
JUDGMENT
In accordance with the corresponding Memorandum Ruling, for the reasons set forth therein,
IT IS ORDERED, ADJUDGED, and DECREED that the Motion for Summary Judgment [doc. 58] filed by Ethicon, et al., and directed toward the claims of the plaintiffs, Brett Hardy and Nedra Victorian Landry IS GRANTED.
IT IS ORDERED, ADJUDGED, and DECREED that all the claims of Brett Hardy and Nedra Victorian Landry ARE DISMISSED WITH PREJUDICE at the plaintiffs' cost.