Nobles v. Sofamor, S.N.C.

• Decision Date: 30 June 1999
• Docket Number: No. CIV. A. H-98-2176.,CIV. A. H-98-2176.
• Citation: 81 F.Supp.2d 735
• Parties: Harold NOBLES, Plaintiff, v. SOFAMOR, S.N.C., Defendant.
• Court: U.S. District Court — Southern District of Texas

81 F.Supp.2d 735

Harold NOBLES, Plaintiff, v. SOFAMOR, S.N.C., Defendant.

No. CIV. A. H-98-2176.

United States District Court, S.D. Texas, Houston Division.

June 30, 1999.

Harold Nobles, Beaumont, TX, pro se.

John K. Spiller, Strasburger & Price, Houston, TX, William A. Worthington, Starsburger & Price, Houston, TX, for Sofamor SNC.

Alex E. Cosculleuela, Adams and Reese, Houston, TX, for Insurance Company of Pennsylvania.

MEMORANDUM AND OPINION

ROSENTHAL, District Judge.

Pending before this court is a motion for summary judgment filed by the defendant, Sofamor, S.N.C. (Docket Entry No. 23). Plaintiff, Harold Nobles, has not responded. Plaintiff, who was previously represented by counsel, has been pro se since December 18, 1998. His counsel moved to withdraw on September 9, 1998. This court stayed Sofamor's discovery until January 29, 1999, and set deadlines that permitted ample time for plaintiff to obtain new counsel and prepare this case. The file reflects that plaintiff has not retained new counsel and has taken no steps to proceed with his suit. This court therefore proceeds to decide the pending dispositive motion.

Based on the pleadings, the motion, the record, and the applicable law, this court GRANTS the motion for summary judgment. The reasons are set out below.

I. Background

Harold Nobles alleges that a medical device used in his 1992 spinal fusion surgery caused him disabling pain. The defendant, Sofamor, is the manufacturer of the Cotrel Dubousset spinal instrumentation device at issue. The so-called CD system is a form of orthopedic bone screw used as an internal split to immobilize the spine following fusion surgery. (Docket Entry No. 23, pp. 1-2). A number of similar product liability lawsuits were filed, leading to a transfer under the multi-district litigation statute. This case has been returned to this court after discovery on, and resolution of, issues common to the cases in the MDL transferee court.

The summary judgment record includes Nobles' deposition testimony; the testimony of Dr. Jeff Kozak, the orthopedic surgeon who performed the fusion surgery and installed the orthopedic screws; and the report of the expert medical witness Nobles designated, Dr. James Woessner. The relevant facts are largely undisputed.

Nobles was 43 years old at the time of surgery. His work had involved moving heavy equipment. He injured his back and was disabled from working before any back surgery. (Docket Entry No. 23, Ex. A, Deposition of Nobles, pp. 24-25). Dr. Kozak diagnosed herniated discs at L4-5 and L5-S1. After medical treatment failed to relieve Nobles' back pain, Dr. Kozak recommended a two-level fusion with spinal instrumentation for internal fixation. Before the surgery, Dr. Kozak and Nobles discussed the procedure. Nobles received a second opinion before Dr. Kozak performed the surgery. (Id., pp. 40-41).

A few months after the surgery, Nobles began feeling pain in his lower buttocks. This was a new pain, in a new place, different from what he had experienced before the surgery. After tests, Dr. Kozak concluded that Nobles' pain complaints did not originate from his spine, but from his sacroiliac joint, which was not involved in the surgery of September 1992. (Docket Entry No. 23, Ex. B, Deposition of Kozak, pp. 59-60). Different treatments, including the placement of a stimulation apparatus, failed to give lasting relief.

Dr. Kozak also evaluated the spinal fusion with a myelogram and CT scan. He concluded that the fusion had successfully removed the discs and established stability in the spine. The screws were in their proper place and showed no deformation or other problem. Dr. Kozak concluded that Nobles' original back pain was resolved and that the new pain was unrelated to the back surgery or to the use of the pedicle screws. (Id, pp. 55-56).

The record evidence supporting Nobles' claims includes the report of his expert witness, Dr. James Woessner. Dr. Woessner reviewed some medical records; he did not examine Nobles. He concluded that "[t]here is a reasonable degree of medical certainty that the instrumentation not only did not correct the pathology that caused the original pain and disability, but also that the whole process of putting the instrumentation into his back has also resulted in much tissue disruption and scarring in his back. Any remaining hardware, the abundant resultant scar tissue and the dorsal column stimulator apparatus are very likely rubbing against nerve endings in many tissues in the area of the original injury and these subsequent surgical procedures, and are therefore, understandably causing nerve impingement, and thus, pain and dysfunction.... This case is an example of failure of non-FDA approved hardware." (Docket Entry No. 23, Ex. C, p. 5).

The date of Dr. Woessner's report is January 25, 1998. On July 27, 1998, the FDA issued a final rule on the pedicle screw spinal systems. See Orthopedic Devices: Classification and Reclassification of Pedicle Screw Spinal Systems, 63 Fed. Reg. 40025 (1998). That report, made a part of the summary judgment record, contains language noting that the devices do not result in a greater increase in adverse outcomes than is associated with other types of spinal fusion procedures. (Docket Entry No. 23, Ex. D).

In this lawsuit, Nobles alleged fraud, negligent misrepresentation, negligence, strict liability, and breach of implied warranties. In this motion, Sofamor moves for summary judgment on the grounds that Nobles has failed to raise a fact issue that would permit a finding of liability on any of the causes of action he alleged.

II. The Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56. Substantive law identifies the facts that are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a material fact is genuine only if the evidence in the summary judgment record suffices for a reasonable fact-finder to return a verdict in favor of the nonmoving party. Id. The inquiry at the summary judgment stage of litigation is whether the evidence disclosed in the summary judgment record presents a sufficient disagreement to require submission to the factfinder or whether it is so one-sided that the moving party must prevail as a matter of law. Id. at 251-52, 106 S.Ct. 2505.

Under FED. R. CIV. P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.1994). The operation of the summary judgment standard depends on which party bears the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. If, as here, the defendant is moving for summary judgment and is not the party with the burden of proof at trial, then the defendant must affirmatively offer evidence that undermines one or more of the essential elements of the plaintiff's case, or must demonstrate that the evidence in the summary judgment record falls short of establishing an essential element of the plaintiff's case. If the defendant does so, then the plaintiff, as the nonmoving party, must point to evidence in the summary judgment record sufficient for a reasonable fact finder to decide in her favor. A scintilla of evidence, conclusory allegations, speculation, and unsubstantiated assertions will not carry this burden. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996)(en banc); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).

If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response. Little, 37 F.3d at 1075. When the moving party has met its Rule 56(c) burden, the nonmovant cannot survive a motion for summary judgment by resting on the mere allegations of its pleadings. McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.1995). The nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). In deciding a summary judgment motion, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548).

III. Analysis

A. The Strict Liability Claim

Texas has adopted the strict products liability standard set forth in section 402A of the Restatement (Second) of Torts, which provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b)...