Grenier v. Medical Engineering Corp.

• Decision Date: 25 April 2000
• Docket Number: No. CIV.A.94-0990.,CIV.A.94-0990.
• Citation: 99 F.Supp.2d 759
• Parties: Mary Louise GRENIER, Steven Grenier, Plaintiffs, v. MEDICAL ENGINEERING CORPORATION, Surgitek Incorporated, Defendants.
• Court: U.S. District Court — Western District of Louisiana

99 F.Supp.2d 759

Mary Louise GRENIER, Steven Grenier, Plaintiffs, v. MEDICAL ENGINEERING CORPORATION, Surgitek Incorporated, Defendants.

No. CIV.A.94-0990.

United States District Court, W.D. Louisiana, Shreveport Division.

April 25, 2000.

Robert I. Thompson, III, Shreveport, Richard L. Root, Barnes & Root, New Orleans, LA, for Mary Louise Grenier, Steven Grenier, plaintiffs.

Charles W. Salley, Penny N. Nowell, Lunn Irion et al., Shreveport, Timothy Allan Pratt, Matthew D. Keenan, Jane J. Kemper Bartley, Shook Hardy & Bacon Kansas City, MO, for Medical Engineering Corp., defendants.

MEMORANDUM RULING

WALTER, District Judge.

Before the Court are the following motions filed by Defendants: (1) Motion for Partial Summary Judgment (Doc. # 25); (2) Motion for Summary Judgment on All Counts (Doc. # 33); and (3) Motion for Summary Judgment on Multiple Counts (Doc. # 40). For the following reasons, this Court finds Defendants' motions must be GRANTED.

I. FACTUAL BACKGROUND

Plaintiff Mary Grenier received silicone breast implants on March 28, 1983, following a double mastectomy. She eventually developed adverse medical conditions she attributed to her implants. Mary and Steven Grenier (Plaintiffs) filed the instant suit on May 31, 1994. On June 15, 1994, Mary Grenier underwent an explantation surgery which revealed 75-100cc of silicone gel outside the implant shell but within the scar capsule of her left breast. The treating physician examined the left implant after its removal and noted it had not ruptured. This phenomenon where silicone gel passes through the shell of the implant without any noticeable structural defect in the implant shell itself is typically referred to as "gel bleed."

II. PROCEDURAL BACKGROUND

As Defendants were embroiled in a blizzard of lawsuits around the country, a Multi-District Litigation Court (MDL Court) was established in the Northern District of Alabama, where this case was transferred after its filing. A modified version of the standard MDL complaint was originally filed with this Court. Plaintiffs' original complaint alleged causes of action under Louisiana law, such as: (1) redhibitory defect under LA. CIV. CODE ANN. art. 2520; (2) deceptive and unfair trade practices under the Louisiana Unfair Trade Practices Act set forth in LA. REV. STAT. ANN. § 51:1409; and numerous standard MDL "counts." See Plaintiffs' Original Complaint, at ¶ 10-11.

On January 24, 2000, Plaintiffs filed an amended complaint streamlining the original complaint. Plaintiffs voluntarily dismissed counts XXV-XXVIII of the original complaint. See Plaintiffs' Amended Complaint, at 3. In addition, Plaintiffs released any and all claims relating to systemic illness caused by the breast implants. See id. Plaintiffs further released any and all claims of "[d]eceptive and Unfair Trade Under the Louisiana Unfair Trade Practice and Consumer Protection Law..." Id. Plaintiffs Amended Complaint is based on the following local complications: (1) gel bleed; (2) migration of the silicone from the implant site to other portions of the body; (3) capsular contracture; (4) rupture of the implant; (5) scarring and numbness from explantation; and (6) resulting physical and emotional pain and suffering. Plaintiffs' Second Amended Complaint, at ¶ VIII.

As discussed infra, this Court holds the Louisiana Products Liability Act (LPLA) controls this matter and all remaining claims must be examined in that context.

III. CLAIMS PRESENTED

Application of the LPLA

As Mary Grenier received her implants in 1983 and had them removed in 1994, a time frame that straddles the enactment of the LPLA in 1988, this Court must resolve the threshold issue of whether the LPLA controls this matter. See LA. REV. STAT. ANN. § 2800.51. The LPLA establishes the "exclusive theories of liability for manufacturers for damage caused by their products. 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." See id. at § 2800.52. The LPLA is not applied retroactively. Lewis v. Intermedics Intraocular, Inc., 56 F.3d 703 (5th Cir.1995).

Plaintiffs contend the pre-LPLA law of Halphen applies.¹ Despite raising an argument which necessarily must be time and fact specific in terms of when the cause of action arose, Plaintiffs make no assertion of, much less state specific facts relating to, when Mary Grenier ultimately associated her medical conditions with her implants. See Knippers v. Lambard, 620 So.2d 1368, 1372 (La.App. 2d Cir.1993)(Plaintiff must be aware of both an alleged cause, and a correlation of the cause to the injury, for the cause of action to accrue). Confronted with this unsubstantiated claim, this Court sought some temporal reference in the record as to when problems allegedly stemming from her breast implants began. On page eight of her deposition she stated "[a]round 1990 when I first started having pain in my shoulders, I never associated this with my implants." This quote makes it clear that she had not, as of 1990, established a correlation between her implants and her asserted medical problems. Therefore, her cause of action did not arise until sometime after 1990, well after the enactment of the LPLA. See Knippers, 620 So.2d at 1372.

There is an alternative and equally persuasive reason why this Court must apply the LPLA. As this Court interprets claims in favor of preservation rather than dismissal, Plaintiffs' argument that Halphen controls would beg the ultimate legal conclusion that their claims would have prescribed. Under Louisiana law, a cause of action arises when a plaintiff has the right to sue. Zachary v. Dow Corning Corp., 884 F.Supp. 1061, 1064 (M.D.La. 1995). The primary elements for asserting a cause of action in Louisiana are: (1) defining a wrongful act by the defendant; and (2) declaring damages resulting from this act. In re Asbestos Plaintiffs v. Bordelon, Inc., 96,0525 (La.App. 4 Cir. 10/21/98) 726 So.2d 926, 939; See Knippers, 620 So.2d at 1372. As such, to be entitled to the application of Halphen, Plaintiffs' cause of action would have to have existed before the LPLA was enacted in 1988. As they did not file suit until 1994, their cause of action would have clearly prescribed. See LA. CIV. CODE ANN. art. 3492 (West 1994)(delictual actions subject to a one year prescriptive period).

This Court will also address the assertion that the latent disease (asbestosis) rationale contained in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) should control the accrual date analysis in this case. In Celotex, the Louisiana Supreme Court recognized a distinction between slow onset and/or latent injury torts and traditional torts involving both an easily identifiable event and resulting injury. See id. at 1065. Although Plaintiffs' assertion is logical, they have submitted no evidence to establish the slow onset of Mary Grenier's symptoms or any latent injury sufficient to invoke the Celotex standard.

Also, Plaintiffs have abandoned all systemic illness claims, leaving only those based in local complications. See Plaintiffs' Amended Complaint, at 3. This undercuts the rationale correlating asbestosis to problems stemming from silicone exposure. A primary concern of the Louisiana Supreme Court with the peculiar nature of asbestosis was the difficulty in determining when injuries were actually sustained. See Celotex, 599 So.2d at 1065. Such a rationale could be appropriate in breast implant claims involving the slow onset of systemic problems not immediately attributable to silicone implants, however, the correlation fails when applied to local complication claims. Mary Grenier's damages as set forth in section II of this Memorandum Ruling, do not exhibit the same latency of asbestosis. With the exception of the gel bleed/migration complaint, all other damages are the clear result of easily definable events and not subject to the Celotex standard. The gel bleed/migration complaint is also not subject to the Celotex standard as there is no evidence of slow onset or whether any silicone migrated outside the scar capsule of her left breast.

Given these independent factors, this Court finds the LPLA applies to the case sub judice.

Claims Not Cognizable Under the LPLA

The LPLA sets forth a specific and circumscribed framework for products liability cases in Louisiana. The LPLA provides the only avenue by which Plaintiffs may assert liability on behalf of a manufacturer. See LA. REV. STAT. ANN. § 2800.52 (West 1994); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995). The only way liability may attach to a manufacturer is by a showing of damage proximately caused by an unreasonably dangerous characteristic of the product when used in a reasonably anticipated manner. See LA. REV. STAT. ANN. § 2800.54; Jefferson v. Lead Indus. Assoc., Inc., 930 F.Supp. 241, 245 (E.D.La. 1996). A plaintiff can only prove a product is "unreasonably dangerous" if it is so: (1) in construction or composition; (2) in design; (3) because of inadequate warning; or (4) because of nonconformity to an express warranty. See LA. REV. STAT. ANN. § 2800.54. Given the exclusivity of the LPLA, all causes of action inconsistent with it must be dismissed. While Plaintiffs' amended complaint forfeits claims XXV-XXVIII, claims I-XXIV² of the original complaint must be examined to determine if they are cognizable under the LPLA.

Counts I (Strict Liability); II (Negligence); Count V(Breach of Warranty of Fitness for a Particular Purpose); IX (as it relates to breach of implied warranty); IX (Misrepresentation/Fraud); X (Fraud by Concealment); XII (False Advertising); XIII (Negligent Infliction of Emotional Distress); XV (Common Plan to Prevent Public Awareness of Breast Implant Hazards); and XIX (Fear of Future Product Failure) are all well outside the scope of the LPLA and must be dismissed. See LA. REV. STAT. ANN. § 2800.52 (West 1994); Jefferson, ...