IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-30137 Summary Calendar
PATRICIA GILL, ET AL., Plaintiffs,
NEGRA VICTORIAN LANDRY, BRETT HARDY, Plaintiffs-Appellants,
versus
ETHICON INC., ET AL., Defendants,
ETHICON INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON HOSPITAL SERVICES CORPORATION, JOHNSON & JOHNSON HEALTHCARE SYSTEMS INC., OWENS & MINOR INC., OWENS & MINOR MEDICAL INC., Defendants-Appellees.
__________________________________________________ Appeal from the United States District Court for the Western District of Louisiana (No. 00-CV-2042) ________________________________________________ July 24, 2002
Before JOLLY, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Nedra Victorian Landry1 and Brett Hardy
appeal from the district court’s judgment summarily dismissing
their complaint. For the reasons that follow, we affirm.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Although the caption of the case identifies Ms. Landry’s first name as “Negra,” her correct first name is Nedra. I. FACTS AND PROCEEDINGS
On July 28, 2000, the plaintiffs-appellants brought this suit
in state court against the manufacturers and distributors of Vicryl
sutures (collectively, “Ethicon”), asserting liability under the
Louisiana Products Liability Act (“LPLA”). Essentially, Landry and
Hardy allege that contaminated Vicryl sutures that were subject to
a September 1994 recall were used for wound closure in their
November 1994 surgeries at Lake Charles Memorial Hospital (the
“Hospital”) and caused post-operative infections.
Ethicon removed the case to federal court on diversity
grounds. By order entered April 20, 2001, the district court set
a trial date of March 25, 2002, and established a late December
2001 deadline for the completion of discovery and the filing of
dispositive motions.
Arguing that the plaintiffs-appellants could not prove that
their injuries were caused by a defective condition as required by
the LPLA, Ethicon filed a motion for summary judgment on November
13, 2001. Thereafter, the clerk of court notified the parties that
the motion would be decided “on or before the next regular motion
day which is December 12, 2001.” Landry and Hardy filed an
opposition to the motion on December 7, nine days after it was due.
In their opposition, they relied on the affidavits of Roger
Burgess, their counsel of record who attached to his affidavit
deposition testimony and documents produced in a similar case then
pending in a Texas district court, and Frederick Hetzel, an expert
2 witness whose involvement in the case had not been previously
disclosed to Ethicon. Ethicon moved to strike both affidavits on
December 14. Landry and Hardy did not file an opposition to the
motion to strike.
The district court granted Ethicon’s motion to strike on
January 4, 2002. Then, on January 7, the court granted summary
judgment to Ethicon, concluding that the “plaintiffs cannot prove
that their injuries were caused by an unreasonably dangerous
product.” Landry and Hardy timely appealed, challenging the
district court’s evidentiary ruling as well as its summary
dismissal.
II. DISCUSSION
A. Motion to Strike
Landry and Hardy argue that the district court erroneously
granted Ethicon’s motion to strike. They assert that the court
should not have considered the motion because it was untimely, as
it was filed two days after the hearing date on the summary
judgment motion. Furthermore, they contend that neither of the
stricken affidavits was deficient as a matter of law.
We decline to consider these arguments because Landry and
Hardy failed to contest the motion to strike in the district
court.2 By failing to raise an objection in the district court,
2 We note that the plaintiff-appellants’ timeliness argument is completely disingenuous. Landry and Hardy filed their opposition to Ethicon’s summary judgment motion nine days after the due date and just five days before the hearing date.
3 they waived or forfeited any right to object to the timeliness or
the merits of Ethicon’s motion to strike. See Hollis v. American
Airlines, Inc., 138 F.3d 1028, 1030 (5th Cir. 1998). Therefore, we
turn to the merits of the district court’s summary judgment ruling.
B. Motion for Summary Judgment
Landry and Hardy argue that the district court improperly
granted summary judgment to Ethicon, contesting the ruling both on
the merits and on grounds of prematurity. We review a grant of
summary judgment de novo, applying the same standard as the
district court. Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). Summary judgment is proper if there is
no genuine issue as to any material fact. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under the LPLA, a manufacturer is subject to liability only
where the damage suffered by the plaintiff was “proximately caused
by a characteristic of the product that renders the product
unreasonably dangerous.” La. Rev. Stat. § 9:2800.54(A). As such,
as part of their prima facie case, Landry and Hardy must prove that
their injuries were proximately caused by a product shown to be
unreasonably dangerous. The district court found that Landry and
Pursuant to their argument, the district court should have disregarded their opposition in addition to the motion to strike.
4 Hardy failed to demonstrate a triable issue of fact on this
essential element of their LPLA claim and accordingly granted
summary judgment to Ethicon. It reasoned that because Landry and
Hardy “cannot prove that the sutures they received were some of
those subject to the Ethicon recall, nor can they prove the sutures
were actually contaminated, . . . plaintiffs cannot prove that
their injuries were caused by an unreasonably dangerous product.”
After reviewing the evidence properly before the district court, we
agree.
The undisputed evidence in the record indicates that the
Hospital returned all of the recalled sutures to Ethicon no later
than October 18, 1994, several weeks before the plaintiffs-
appellants’ surgeries. Landry and Hardy have offered no
contradictory evidence that would suggest that the sutures they
received may have been part of the recalled lot. Nor have they
come forward with any evidence that would indicate that the sutures
they received were otherwise contaminated or defective.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-30137 Summary Calendar
PATRICIA GILL, ET AL., Plaintiffs,
NEGRA VICTORIAN LANDRY, BRETT HARDY, Plaintiffs-Appellants,
versus
ETHICON INC., ET AL., Defendants,
ETHICON INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON HOSPITAL SERVICES CORPORATION, JOHNSON & JOHNSON HEALTHCARE SYSTEMS INC., OWENS & MINOR INC., OWENS & MINOR MEDICAL INC., Defendants-Appellees.
__________________________________________________ Appeal from the United States District Court for the Western District of Louisiana (No. 00-CV-2042) ________________________________________________ July 24, 2002
Before JOLLY, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Nedra Victorian Landry1 and Brett Hardy
appeal from the district court’s judgment summarily dismissing
their complaint. For the reasons that follow, we affirm.
* 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. 1 Although the caption of the case identifies Ms. Landry’s first name as “Negra,” her correct first name is Nedra. I. FACTS AND PROCEEDINGS
On July 28, 2000, the plaintiffs-appellants brought this suit
in state court against the manufacturers and distributors of Vicryl
sutures (collectively, “Ethicon”), asserting liability under the
Louisiana Products Liability Act (“LPLA”). Essentially, Landry and
Hardy allege that contaminated Vicryl sutures that were subject to
a September 1994 recall were used for wound closure in their
November 1994 surgeries at Lake Charles Memorial Hospital (the
“Hospital”) and caused post-operative infections.
Ethicon removed the case to federal court on diversity
grounds. By order entered April 20, 2001, the district court set
a trial date of March 25, 2002, and established a late December
2001 deadline for the completion of discovery and the filing of
dispositive motions.
Arguing that the plaintiffs-appellants could not prove that
their injuries were caused by a defective condition as required by
the LPLA, Ethicon filed a motion for summary judgment on November
13, 2001. Thereafter, the clerk of court notified the parties that
the motion would be decided “on or before the next regular motion
day which is December 12, 2001.” Landry and Hardy filed an
opposition to the motion on December 7, nine days after it was due.
In their opposition, they relied on the affidavits of Roger
Burgess, their counsel of record who attached to his affidavit
deposition testimony and documents produced in a similar case then
pending in a Texas district court, and Frederick Hetzel, an expert
2 witness whose involvement in the case had not been previously
disclosed to Ethicon. Ethicon moved to strike both affidavits on
December 14. Landry and Hardy did not file an opposition to the
motion to strike.
The district court granted Ethicon’s motion to strike on
January 4, 2002. Then, on January 7, the court granted summary
judgment to Ethicon, concluding that the “plaintiffs cannot prove
that their injuries were caused by an unreasonably dangerous
product.” Landry and Hardy timely appealed, challenging the
district court’s evidentiary ruling as well as its summary
dismissal.
II. DISCUSSION
A. Motion to Strike
Landry and Hardy argue that the district court erroneously
granted Ethicon’s motion to strike. They assert that the court
should not have considered the motion because it was untimely, as
it was filed two days after the hearing date on the summary
judgment motion. Furthermore, they contend that neither of the
stricken affidavits was deficient as a matter of law.
We decline to consider these arguments because Landry and
Hardy failed to contest the motion to strike in the district
court.2 By failing to raise an objection in the district court,
2 We note that the plaintiff-appellants’ timeliness argument is completely disingenuous. Landry and Hardy filed their opposition to Ethicon’s summary judgment motion nine days after the due date and just five days before the hearing date.
3 they waived or forfeited any right to object to the timeliness or
the merits of Ethicon’s motion to strike. See Hollis v. American
Airlines, Inc., 138 F.3d 1028, 1030 (5th Cir. 1998). Therefore, we
turn to the merits of the district court’s summary judgment ruling.
B. Motion for Summary Judgment
Landry and Hardy argue that the district court improperly
granted summary judgment to Ethicon, contesting the ruling both on
the merits and on grounds of prematurity. We review a grant of
summary judgment de novo, applying the same standard as the
district court. Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). Summary judgment is proper if there is
no genuine issue as to any material fact. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under the LPLA, a manufacturer is subject to liability only
where the damage suffered by the plaintiff was “proximately caused
by a characteristic of the product that renders the product
unreasonably dangerous.” La. Rev. Stat. § 9:2800.54(A). As such,
as part of their prima facie case, Landry and Hardy must prove that
their injuries were proximately caused by a product shown to be
unreasonably dangerous. The district court found that Landry and
Pursuant to their argument, the district court should have disregarded their opposition in addition to the motion to strike.
4 Hardy failed to demonstrate a triable issue of fact on this
essential element of their LPLA claim and accordingly granted
summary judgment to Ethicon. It reasoned that because Landry and
Hardy “cannot prove that the sutures they received were some of
those subject to the Ethicon recall, nor can they prove the sutures
were actually contaminated, . . . plaintiffs cannot prove that
their injuries were caused by an unreasonably dangerous product.”
After reviewing the evidence properly before the district court, we
agree.
The undisputed evidence in the record indicates that the
Hospital returned all of the recalled sutures to Ethicon no later
than October 18, 1994, several weeks before the plaintiffs-
appellants’ surgeries. Landry and Hardy have offered no
contradictory evidence that would suggest that the sutures they
received may have been part of the recalled lot. Nor have they
come forward with any evidence that would indicate that the sutures
they received were otherwise contaminated or defective.
Accordingly, we conclude that summary judgment was appropriate on
this record.
We also reject the plaintiffs-appellants’ contention that
summary judgment was premature. Ethicon’s motion for summary
judgment was filed just over a month before the December deadline
for discovery and the filing of dispositive motions, which had been
set in anticipation of the approaching March 2002 trial date.
5 Ethicon states, and Landry and Hardy do not contest, that in the
approximately eighteen months that this case was pending in the
district court, Landry and Hardy never propounded interrogatories,
requests for production of documents, or requests for admission,
nor did they ever notice a deposition. In these circumstances, we
cannot accept the plaintiff-appellants’ contention that they were
not afforded a sufficient opportunity to undertake discovery;
rather, we are convinced that the plaintiff-appellants’ failure to
adequately respond to the summary judgment motion was the
consequence of their dilatory conduct.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.