Lyles v. Medtronic Sofamor Danek, United States, Inc.

• Decision Date: 11 September 2017
• Docket Number: No. 16-30517 Consolidated w/16-31044.,16-30517 Consolidated w/16-31044.
• Citation: 871 F.3d 305
• Parties: Bryant LYLES, Plaintiff-Appellant, v. MEDTRONIC SOFAMOR DANEK, USA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

871 F.3d 305

Bryant LYLES, Plaintiff-Appellant,

v.MEDTRONIC SOFAMOR DANEK, USA, INC., Defendant-Appellee.

No. 16-30517 Consolidated w/16-31044.

United States Court of Appeals, Fifth Circuit.

September 11, 2017

James A. Rountree, Michael Renneisen, Rountree Law Offices, Monroe, LA, for Plaintiff-Appellant.

Murray S. Levin, Esq., Pepper Hamilton, L.L.P., Philadelphia, PA, Thomas Moore Hayes, III, Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, LA, for Defendant-Appellee.

Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge.^*

KEITH STARRETT, District Judge:

Appellant Bryant Lyles was admitted to LSU Health Sciences Center Shreveport ("LSUHSC") on May 9, 2013, and underwent anterior corpectomy and discectomy

surgery on May 10, 2013. A Verte-Stack implant, a vertebral body replacement device, was placed in Lyles's cervical spine, along with Progenix, a putty-like bone graft material that was mixed with bone dust. An Atlantis Translations Anterior Cervical Plate System ("Atlantis Plate") was also implanted to stabilize the Verte-Stack and the vertebral bodies and to promote fusion. Some time after the surgery, the Atlantis Plate either broke or became displaced. The Verte-Stack, Progenix, and Atlantis Plate were all manufactured by the Appellee Medtronic Sofamor Danek, USA, Inc. ("MSD"). Lyles brought suit against MSD in Louisiana state court under the Louisiana Products Liability Act ("LPLA") for both the Atlantis Plate and an Infuse Bone Graft Device ("Infuse").¹

The district court granted summary judgment on claims dealing with the Atlantis Plate on March 23, 2016. On May 26, 2016, Lyles moved for relief from judgment under Federal Rule of Civil Procedure 60 based on newly discovered evidence on the Verte-Stack, which the district court denied. Lyles appeals both of these rulings. Finding that summary judgment was warranted, we AFFIRM the district court's ruling on the Atlantis Plate. We also AFFIRM the district court's denial of Lyles's motion under Rule 60, finding that it did not abuse its discretion.

I.

MSD is a subsidiary of Medtronic, Inc., and is the manufacturer of the Atlantis Plate, Infuse, Verte-Stack, and Progenix. The Atlantis Plate consists of two separate metal components held together by a track and runner system to form one plate. Infuse is a bone graft

device consisting of a collagen sponge material and bioengineered bone protein. The Verte-Stack is a vertebral body replacement device, and Progenix is a putty-like bone graft

material. All four products are stored at LSUHSC prior to use in any surgery and retrieved by a hospital employee or an MSD sales representative prior to surgery.

Lyles was admitted to LSUHCS on May 9, 2013, complaining of bilateral arm and hand weakness. Physicians noted he had an ataxic gait.² An MRI showed severe spinal stenosis³

behind the C5 vertebral body, as well as the C4-C5 and C5-C6 disc spaces. He was diagnosed with cervical cord compression with myelopathy,⁴ and it was decided that he could benefit from a C5 corpectomy.⁵

Dr. Anthony Sin performed an anterior corpectomy and discectomy⁶

surgery on Lyles on May 10, 2013. He replaced Lyles's C5 vertebral body with a Verte-Stack implant and inserted Progenix mixed with Lyles's bone dust into the implant. To hold the Verte-Stack in place and promote union between it and the C4 and C6 vertebral bodies, he also inserted the Atlantis Plate, which was attached to the C4 and C6 vertebrae. Dr. Shihao Zhang assisted Dr. Sin during this surgery.

According to Dr. Lynn Stringer, Lyles's expert, and Dr. Hallet Mathews, x-ray images taken after surgery indicate that the Atlantis Plate broke a short time after surgery, leaving the two metal components separated.⁷ The radiologist did not detect any problems with the Atlantis Plate at the time these images were taken. Lyles was discharged from LSUHSC on May 14, 2013.

On May 20, 2013, Lyles returned to LSUHSC, stating that his condition had not improved and reporting that he had fallen twice since discharge. Concerned that the Atlantis Plate had broken, Dr. Sin ordered more x-rays and found slight displacement of the Plate, but concluded from further tests that it had not broken or become unstable. Dr. Stringer and Dr. Mathews both agree that these images are substantially similar to those taken the night of the surgery and show that the Atlantis Plate had broken.

Lyles's symptoms did not improve over time as his C4 and C6 vertebrae failed to fuse. He continued to suffer pain in his neck and arms, lack of feeling and strength in his hands, and issues with his ability to walk.

On February 6, 2014, Dr. Sin performed a second surgery on Lyles, which included a posterior decompressive cervical laminectomy

at the C4-C6 vertebrae and the insertion of rods and screws for arthrodesis of the C3-C6 vertebrae.

Both the Verte-Stack and the Atlantis Plate remain in place on Lyles's spine. On December 12, 2014, Dr. Sin examined Lyles and found that the anterior and posterior cervical spines have maintained alignment. Dr. Sin maintains that the Atlantis Plate never failed.

II.

Lyles originally brought suit in Louisiana state court on February 10, 2015. The case was removed to the Western District of Louisiana on March 26, 2015. In his Third Amended Complaint, Lyles brought defective design and defective construction claims under the LPLA against MSD for the Atlantis Plate and Infuse, as well as claims under the Louisiana Unfair Trade Practices and Consumer Protection Law and a claim of intentional fraud for Infuse. The Infuse claims were dismissed by the district court on January 20, 2016, as prescribed and, alternatively, barred by the exclusivity provision of the LPLA. Lyles does not appeal this dismissal.

MSD moved for summary judgment on the remaining defective design and defective construction claims for the Atlantis Plate on January 25, 2016, arguing that Lyles could not show an alternative design that would have prevented his damage for his defective design claim and that he had failed to show that the Atlantis Plate deviated from MSD's specifications or performance standards so as to make it unreasonably dangerous. Lyles conceded he could not show an alternative design, but argued for the first time that the res ipsa loquitur doctrine applied to create a presumption that the Atlantis Plate contained a defect in construction. The district court found that Lyles did not meet his burden to establish that res ipsa loquitur applied and granted summary judgment on March 23, 2016. Lyles appealed.

On May 26, 2016, while his appeal was pending, Lyles filed a motion under Federal Rule of Civil Procedure 60(b)(2) and (3), claiming that he had newly discovered evidence concerning the Verte-Stack and Progenix used in his surgery and that MSD had concealed this evidence from him during discovery. He asked that the district court grant him relief from judgment and to reopen his case. The district court allowed additional sur-replies from both parties and held a hearing on this motion on August 24, 2016. After taking the parties' arguments and evidence into consideration, the district court ultimately denied Lyles relief on August 31, 2016. Lyles appealed.

The two appeals were consolidated by Court Order on November 11, 2016.

III.

We first review the district court's grant of summary judgment. This Court reviews a grant of summary judgment de novo and applies the same standard as the district court. Amerisure Ins. Co. v. Navigators Ins. Co. , 611 F.3d 299, 304 (5th Cir. 2010) (citation omitted). "Although on summary judgment the record is reviewed de novo , this court ... will not consider evidence or arguments that were not presented to the district court for its consideration in ruling on the motion." Am. Family Life Assur. Co. of Columbus v. Biles , 714 F.3d 887, 896 (5th Cir. 2013) (per curiam) (quoting Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915 (5th Cir. 1992) ) (alteration in original). The Court is "not limited to the district court's reasons for its grant of summary judgment and may affirm the district court's summary judgment on any ground raised below and supported by the record." Rogers v. Bromac Title Servs., L.L.C. , 755 F.3d 347, 350 (5th Cir. 2014) (citation omitted).

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist. , 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id.

In non-jury cases, we have recognized "that it makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts." In re Placid Oil Co. , 932 F.2d 394, 398 (5th Cir. 1991) (citing Nunez v. Superior Oil Co. , 572 F.2d 1119, 1124 (5th Cir. 1978) ). Therefore, "at the summary judgment stage a judge in a bench trial has the limited discretion to decide that the same evidence, presented to him or her as trier of fact in a plenary trial, could not possibly lead to a different result." Id. Under a de novo review of a summary judgment, this Court "still app[ies] the manifest-error standard of review to the district court's evidentiary rulings." Love v. Nat'l Med. Enters. , 230 F.3d 765, 775 (5th Cir. 2000) (citation omitted). A "manifest error" is an error "that is plain and indisputable, and that amounts to a complete disregard of the controlling law." Guy v. Crown Equip. Corp. , 394 F.3d...