Grenier v. Medical Engineering Corp.

• Decision Date: 08 March 2001
• Docket Number: No. 00-30641,00-30641
• Citation: 243 F.3d 200
• Parties: (5th Cir. 2001) MARY LOUISE GRENIER; STEVEN GRENIER, Plaintiffs-Appellants, v. MEDICAL ENGINEERING CORP., ET AL, Defendants, MEDICAL ENGINEERING CORP., Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 200

243 F.3d 200 (5th Cir. 2001)

MARY LOUISE GRENIER; STEVEN GRENIER, Plaintiffs-Appellants, v. MEDICAL ENGINEERING CORP., ET AL, Defendants, MEDICAL ENGINEERING CORP., Defendant-Appellee.

No. 00-30641

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

March 8, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY, MAGILL^* and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

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.

I

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 761.

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 appeals.¹

II

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).

A

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.²

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 claims.

B

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)).

C

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 "[1] the product possessed a characteristic that may cause damage and [2] 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.³ 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,...