Brief of Grenier v. Medical Engineering Corp., 243 F.3d 200 (Cir5 2001)
|||IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
|||March 8, 2001
|||MARY LOUISE GRENIER;
MEDICAL ENGINEERING CORP., ET AL,
MEDICAL ENGINEERING CORP.,
|||Before Jolly, MAGILL*fn1 and Benavides, Circuit Judges.
|||The opinion of the court was delivered by: E. Grady Jolly, Circuit Judge
|||Appeal from the United States District Court for the Western District
|||This appeal arises from a products liability case involving silicone
gel breast implants. In March 1983, Mary Grenier received breast implants
manufactured by Medical Engineering Corporation ("MEC"). Eleven
years later, Grenier sued MEC after learning that silicone gel had leaked
or "bled" through the implant shell. The district court granted
summary judgment for MEC. Grenier v. Medical Engineering Corp., 99 F.Supp.2d
759 (W.D. La. 2000). The district court concluded that (1) the 1988 Louisiana
Products Liability Act applied to Grenier's claims; (2) Grenier could
not prevail on her defective design and failure to warn claims because
she had presented no evidence of a product defect; and (3) Grenier's redhibition
claim was time-barred. We affirm.
|||Mary Grenier underwent breast augmentation surgery following a double
mastectomy in March 1983. The operating physician inserted silicone gel
breast implants manufactured by MEC.
|||By the early 1990s, Grenier began experiencing health problems that
she associated with her breast implants. In 1994, after diagnostic tests
indicated that the implant in Grenier's left breast might have ruptured,
Grenier's physician surgically removed both implants. Although the surgeon
concluded that the left implant had not ruptured, he also discovered 75
to 100 cc of silicone gel outside the implant shell but within the scar
tissue capsule in Grenier's left breast. The district court and the parties
refer to this phenomenon of "silicone gel pass[ing] through the shell
of the implant without any noticeable structural defect in the implant
shell itself" as "gel bleed." Grenier, 99 F.Supp.2d at
|||Grenier filed a complaint against MEC in the United States District
Court for the Western District of Louisiana in May 1994. Grenier's case
was then transferred to the Multi-District Litigation Court (MDL-926)
in the Northern District of Alabama, where it remained for four and a
half years. For reasons not relevant to this appeal, Grenier's case was
remanded to the district court in Louisiana in January 1999.
|||Grenier's complaint listed fifteen theories of liability, including
defective design, defective manufacture, failure to warn of the potentially
dangerous nature of the product, breach of warranty, negligent misrepresentation,
and redhibition. In April 2000, the district court granted MEC's motion
for summary judgment and dismissed all of Grenier's claims. Grenier now
|||We review a district court's grant of summary judgment de novo, applying
the same substantive test set forth in Federal Rule of Civil Procedure
56(c). See Horton v. City of Houston, 179 F.3d 188, 191 (5th Cir. 1999).
|||The first issue on appeal is whether the 1988 Louisiana Products Liability
Act ("LPLA") applies to Grenier's claims. This question is significant
to the various theories asserted by Grenier because the LPLA establishes
four exclusive theories of product liability: defective design, defective
manufacture, failure to warn, and breach of warranty. See La. Rev. Stat.
Ann. § 9:2800.52 (West 1997)("A claimant may not recover from a manufacturer
for damage caused by a product on the basis of any theory of liability
that is not set forth in the Chapter."). The LPLA applies only to
causes of action that accrued on or after September 1, 1988. Brown v.
R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995). Therefore,
the narrow question before us is when Grenier's cause of action accrued.
|||Under Louisiana law, "A cause of action accrues when a plaintiff
may bring a lawsuit. In a negligence action, for instance, the claimant
must be able to allege fault, causation, and damages." Id. at 526-27.
In this case, the cause of action accrued when Grenier suffered some physical
injury because of her breast implants.*fn3
|||Grenier has presented no medical evidence of when her injuries may have
occurred. (The only evidence remotely relevant to this question is Grenier's
testimony that she began experiencing pain in her back and shoulders sometime
after 1990.) In this respect, Grenier's case is indistinguishable from
Arabie v. R.J. Reynolds Tobacco Co., 698 So.2d 423, 425 (La. App. 5 Cir.
1997), in which a smoker, who was diagnosed with lung cancer in 1992,
presented no evidence as to when the damage to his lungs began. A Louisiana
appeals court held that the LPLA was the plaintiff's exclusive remedy
because he had "failed to introduce a single piece of evidence"
supporting his claim that his lung damage occurred prior to 1988. Id.
Similarly, Grenier has introduced no evidence--and certainly no medical
expert testimony--indicating that she suffered any injury prior to September
1988, when the LPLA took effect.
|||Grenier, relying exclusively on Cole v. Celotex Corp., 599 So.2d 1058
(La. 1992), argues that her cause of action accrued in March 1983, when
she received the breast implants. But Cole is not relevant to the issue
before us. Cole involved a comparative fault statute that applied to "claims
arising from events that occurred" after August 1980. The Louisiana
Supreme Court explained that in long-latency occupational disease cases,
the "events" contemplated by the statute would include "repeated
tortious exposures" to asbestos or other disease-causing agents.
Id. at 1066. Because the plaintiffs in Cole were exposed to asbestos before
August 1980, the comparative fault statute did not apply. But, as the
Louisiana Supreme Court recently observed, the holding in Cole "turned
on [the] unique language" of the comparative fault statute. Walls
v. American Optical Corp., 740 So.2d 1262, 1271-72 (La. 1999). To repeat,
the comparative fault statute did not apply to causes of action that accrued
after the effective date of the statute; instead, the statute applied
to causes of action "arising from events" occurring after the
effective date. This unusual statutory language was highly significant
in Cole, where the plaintiff's exposure to asbestos (the "events"
giving rise to the suit) occurred many years before he suffered damages
from the exposure and before his cause of action accrued. The LPLA, on
the other hand, applies to causes of action that accrued after the statute's
effective date. For this reason, the "exposure rule" of Cole
cannot be read so expansively as to apply to LPLA cases.
|||In sum, although the events giving rise to Grenier's injuries occurred
in 1983, that fact has no bearing on the question of when the injuries
occurred and the cause of action accrued. As there is no evidence suggesting
that the damages occurred before September 1988, the LPLA applies to Grenier's
|||As noted above, the LPLA establishes four exclusive theories of liability:
defective design, defective construction, failure to warn, and breach
of warranty. The district court dismissed all of Grenier's LPLA claims
because she had failed to present any competent evidence of a defect.
|||Grenier tried to prove that the implants were defective by calling the
court's attention to Barrow v. Medical Engineering Corp., 1998 WL 812318
(M.D. Fla. 1998), a lengthy district court opinion in a case involving
a different type of implant and different injuries. Grenier did not argue
that MEC was collaterally estopped from relitigating certain factual issues
related to question of defect. See, e.g., RecoverEdge L.P. v. Pentecost,
44 F.3d 1284, 1290 (5th Cir. 1995). Instead, in her complaint she simply
"adopt[ed]" twenty-seven pages of the Barrow court's findings
of fact. Because this method of presenting evidence is not allowed under
Rule 10(c) or any other Federal Rule of Civil Procedure, the district
court properly refused to consider the Barrow opinion as evidence.
|||Because the Barrow opinion is not evidence, the record is devoid of
proof regarding defective design or construction. This lack of evidence
is fatal to Grenier's LPLA claims because, as this court has noted, "'Louisiana
law does not allow a fact finder to presume an unreasonably dangerous
design solely from the fact that injury occurred.'" Krummel v. Bombardier
Corp., 206 F.3d 548, 551 (5th Cir. 2000)(quoting McCarthy v. Danek Medical,
Inc., 65 F.Supp.2d 410, 412 (E.D. La. 1999)).
|||Grenier's most plausible LPLA claim is that MEC failed to warn her or
her physician about the possibility of "gel bleed."
|||The district court dismissed Grenier's failure to warn claim because
she had presented no evidence of a defect: "Without an adequate showing
of a dangerous defect, this Court cannot impose a duty to warn on [MEC]."
Grenier, 99 F.Supp.2d at 765. The district court's formulation of this
rule may be somewhat misleading. The language of the LPLA provides that
a plaintiff may prevail on her failure to warn claim if " 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." La. Rev. Stat.
Ann. § 9:2800.57 (West 1997). Thus, even if a product is not defectively
designed or constructed, a manufacturer may still have a duty to warn
consumers about any characteristic of the product that unreasonably may
cause damage.*fn4 See, e.g., Hesse v.
Champ Serv. Line, 758 So.2d 245, 249 (La. App. 3 Cir. 2000); Dunne v.
Wal-Mart Stores, Inc., 679 So.2d 1034, 1038 (La. App. 1 Cir. 1996).
|||The exact question under section 9:2800.57, then, is not whether MEC
failed to warn Grenier that its breast implants were defective. To prevail
on her failure to warn claim, Grenier would need to show only that "gel
bleed" is a potentially damage-causing characteristic of MEC's breast
implants and that MEC failed to use reasonable care to provide an adequate
|||However, Grenier presented no evidence about the cause, frequency, severity,
or consequences of "gel bleed" with regard to the implants at
issue in this case. Without a proper understanding of the implants' damage-causing
characteristics, the scope of MEC's duty to warn is unclear. For this
reason, we conclude that Grenier's failure to warn claim was properly
|||Grenier's principal non-LPLA claim is in redhibition. Redhibition is
the avoidance of a sale on account of some defect in the product that
would render an item useless or so inconvenient to use that it would be
presumed that a buyer would not have bought the thing had he known of
the defect. La. Civ. Code Ann. art. 3492 (West 1999).*fn6
|||The district court ruled that Grenier's redhibition claim was time-barred.
In 1995, the Louisiana legislature amended the redhibition statutes to
provide that all redhibition claims "prescribe ten years from the
time of the perfection of the contract regardless of whether the seller
was in good or bad faith. See [Civil Code] Art. 3499." La. Civ. Code
Ann. art. 2534, Revision Comment (b). Relying on this comment, the district
court concluded that Grenier's redhibition claim was not timely because
it was filed in May 1994, eleven years after the contract between Grenier
and MEC had been perfected. Grenier, 99 F.Supp.2d at 763-64.
|||The district court failed to address the question whether this new,
ten-year prescription period applies retroactively to contracts formed
before the effective date of the amendment. In Cole v. Celotex, the Louisiana
Supreme Court articulated the test for determining whether a statute may
be applied retroactively. The first step is to "ascertain whether
in the enactment the legislature expressed its intent regarding retrospective
or prospective application. If the legislature did so, our inquiry is
at an end." Cole, 599 So.2d at 1063.
|||The January 1995 revisions to Article 2534 were part of a 1993 Act ("Act
841") that revised Book III, Title VII of the Civil Code. The note
entitled "Revision of Title VII" reads as follows: "The
provisions of this Act shall have prospective application only and shall
not affect any sales transaction executed before January 1, 1995, which
sales transactions shall be governed by the law in effect prior thereto."
See West's La. Stat. Ann., Civil Code, Vol. 10, p. 2. The only possible
conclusion, then, is that the legislature intended that the revised Article
2534 (including the ten-year prescription period) should apply only to
those contracts perfected after January 1, 1995.
|||Notwithstanding this expression of legislative intent, the district
court assumed that Article 2534 may be applied retroactively. Grenier,
99 F.Supp.2d at 763-64; see also Tiger Bend, LLC v. Temple-Inland, Inc.,
56 F.Supp.2d 686 (M.D. La. 1999). Although the general rule is that prescriptive
periods are treated as procedural laws and apply retroactively, courts
must still address the threshold question of legislative intent. According
to Cole, when the legislature does not intend for a statute to apply retroactively,
the court's "inquiry is at an end."*fn7
The district court thus erred in dismissing Grenier's redhibition claim
|||MEC presents several alternative reasons why summary judgment is proper
on the redhibition claim. As we have often explained, this court may affirm
a summary judgment on any basis raised below and supported by the record.
See, e.g., Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 601 (5th Cir.
2000). In its motion for summary judgment, MEC pointed out that a redhibtion
claim requires a showing of some vice or defect in the thing sold and
that Grenier had failed to submit evidence on the alleged defects in MEC's
breast implants. Because she presented no competent evidence of defect,
Grenier's redhibition claim is without merit.
|||Finally, Grenier asks this court to remand the case to reopen discovery.
For obvious reasons, Grenier would like more time to prepare expert reports,
depose expert witnesses, and prepare dispositive motions. The basis for
her request is that she proceeded pro se from July 1998*fn8
until December 1999, several weeks after MEC had filed its motion for
summary judgment. However, we see no equitable reasons for remanding this
|||This case was filed in May 1994, immediately transferred to the MDL
court, and then remanded to the district court in January 1999. Although
we accept Grenier's contention that she contacted six attorneys between
March and September 1999, none of whom decided to enroll as counsel, we
must also note that the record suggests that Grenier was not averse to
proceeding pro se. Even though she was pro se, Grenier chose to proceed
with the case during the spring of 1999 and requested a status conference
in July, at which time the district court encouraged her to obtain an
attorney unless she wanted to proceed pro se. Grenier never requested
a continuance during these stages in the litigation. In August, the court
issued a scheduling order with deadlines for witness lists, designation
of experts, and dispositive motions. Grenier missed the first of these
deadlines, and there is no indication that she attempted to notify the
court in advance that she would be unable to meet the deadline. Three
weeks after the deadline had passed, Grenier sought a continuance and
filed a motion to upset the scheduling order.*fn9
|||In December 1999, Grenier finally found a second attorney, who has performed
admirably under the circumstances. Over the next few months, the district
court held MEC's motion for summary judgment in abeyance, gave Grenier
extra time to file motions and depose witnesses, and allowed her to amend
her complaint (twice), add three expert witnesses to her witness list,
and file (out of time) an affidavit in opposition to MEC's motion for
summary judgment. Finally, on April 25, the court granted MEC's motion
for summary judgment and dismissed all of Grenier's claims.
|||Based on our review of the record, we believe that Grenier had ample
opportunity to present evidence supporting her claims, but she failed
to do so. Under these circumstances, we find no reason to remand the case
to reopen discovery.
|||For the reasons outlined above, the summary judgment for MEC is
|||*fn1 Circuit Judge of the Eleventh Circuit, sitting by designation.
|||*fn2 While Grenier's appeal was pending,
this court granted the appellees' unopposed motion to dismiss as to appellee
|||*fn3 The district court failed to
differentiate the question of when damages occurred from the question
of when the plaintiff became aware of the damages. See Grenier, 99 F.Supp.2d
at 762. As we understand Louisiana law, the first question determines
when a cause of action accrues; the second determines when a tolled prescription
period begins to run. Thus, in cases involving latent injury, the cause
of action accrues when damages are first suffered, but the prescription
period does not run until such time as a reasonable plaintiff would become
aware of the connection between her injured condition and the defendant's
tortious actions. See Brown, 52 F.3d at 527.
|||*fn4 Of course, manufacturers have
no duty to warn of dangers that are obvious to ordinary users. See Morgan
v. Gaylord Container Corp., 30 F.3d 586, 591 n.7 (5th Cir. 1994).
|||*fn5 Grenier also argues that the
district court misconstrued Louisiana's learned intermediary doctrine.
(In cases involving medical devices, the manufacturer's duty to warn is
owed to the physician, not the patient.) As an alternative ground for
dismissing the failure to warn claim, the district court concluded that
Grenier had presented no evidence 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." Willett v. Baxter Int'l, 929 F.2d 1094, 1098-99 (5th
Cir. 1991). Grenier's lone item of evidence was a four-page affidavit
from a plastic surgeon (who was not Grenier's treating physician) who
stated that he would not have recommended breast implants if MEC had warned
about the possible dangers of "gel bleed." This evidence of
what the affiant personally would have done cannot suffice to prove causation
under the learned intermediary doctrine. As this court has explained,
in order to show causation, "a plaintiff may introduce either objective
evidence of how a reasonable physician would have responded to an adequate
warning, or subjective evidence of how the treating physician would have
responded." Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 812 (5th
Cir. 1992)(applying Mississippi law). In this case, Grenier presented
|||*fn6 The exclusivity provisions of
the LPLA have been held not to be a bar to redhibition actions. "The
LPLA was never intended to eliminate redhibition as a means of recovery
against a manufacturer. . . . The right to sue in redhibition for economic
loss still exists." Monk v. Scott Truck & Tractor, 619 So.2d
890, 893 (La. App. 3 Cir. 1993)(emphasis added).
|||*fn7 Moreover, the Louisiana Supreme
Court has recognized that the retroactive application of prescription
periods may, in some cases, raise due process problems. In Lott v. Haley,
370 So.2d 521, 524 (La. 1979), the Louisiana Supreme Court held that "where
an injury has occurred for which the injured party has a cause of action,
such cause of action is a vested property right which is protected by
the guarantee of due process" in both the federal and the state constitutions.
Thus, a prescription period may not be applied retroactively if it would
"eliminate [a] plaintiff's vested right to sue on his pre-existing
cause of action without providing a reasonable period following its enactment
to assert his claim." Id.; see also Falgout v. Dealers Truck Equipment
Co., 748 So.2d 399, 407-08 (La. 1999). These decisions suggest that even
if the legislature had intended Article 2534 to apply retroactively, the
Louisiana courts would have permitted Grenier's redhibition claim to proceed.
|||*fn8 In a motion presented to the
district court, Grenier stated that she had "fired" her first
attorney in July 1998, while the case was still pending in the MDL court.
Her first attorney did not file a motion to withdraw until March 1999
and was not formally dismissed until June.
|||*fn9 In this October 1999 motion,
Grenier requested that the case be continued until November 2000, by which
time her husband would have finished law school and passed the Louisiana
|||*fn10 The appellants' motion to
certify a question of law to the Louisiana Supreme Court is DENIED.
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