Opinion
CIVIL ACTION No. 02-3778, SECTION: 1/5
February 16, 2004
ORDER AND REASONS
This matter is before the Court on a motion for summary judgment filed on behalf of defendant, Biomet Orthopedics, Inc. ("Biomet"). Plaintiff, John Oiler, opposes the motion. For the following reasons, defendant's motion for summary judgment is GRANTED.
Rec. Doc. No. 27.
FACTS AND PROCEDURAL HISTORY
Biomet is a manufacturer of medical products used for hip replacements. On or about January 29, 2001, plaintiff's wife, Debra Ann Oiler ("Oiler"), underwent hip replacement surgery. The surgery was performed by Dr. Chad W. Millet, M.D. at Memorial Medical Center, located in Orleans Parish. Biomet manufactured and sold hip replacement implant components used during Oiler's surgery,
Rec. Doc. No. 27, Biomet's Mot. for Sum. J., Statement of Uncontested Material Facts ("Uncontested Facts"), at ¶ 1.
Pursuant to Local Rule 56.1, "[e]very motion for summary judgment shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Pursuant to Local Rule 56.2, "[e]ach copy of the papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule." In this case, plaintiff has not included a statement of contested material facts as required by Local Rule 56.2. Ordinarily, plaintiff would be deemed to have admitted the facts set forth in Biomet's statement of Uncontested facts. See e.g., Harris v. Advance Transformer Co., 2000 WL 726889, *2 (E.D.La. 6/6/00); Smith v. Compass Rose Services, Inc., 1998 WL 24426, *l (E.D.La. 1/22/98). However, in plaintiffs opposition, he specifically disputes that the components used in Oiler's surgery were sterilized by Biomet (as opposed to a third party) and that there is no evidence with respect to whether Biomet's products caused Oiler's infection. Therefore, notwithstanding plaintiff's failure to comply with the rule, this Court will not deem those facts admitted.
Uncontested Facts, ¶ 2.
P1. Pet., ¶ IV. The petition contains no allegations of negligence or medical malpractice as to either Memorial Medical Center or Dr. Millet.
Uncontested Facts, ¶ 3.
Plaintiff alleges that on or about February 17, 2001, Oiler was diagnosed with an infection that was caused by the hip replacement surgery. The petition states that on April 12, 2001, Oiler was readmitted to Memorial Medical Center because she was experiencing spontaneous drainage from the hip prostheses accompanied by fever. Plaintiff asserts that it was finally determined that the type of infection Oiler contracted was "mecillin resistant staph aureus (MSRA)". On April 12 and 16, 2001, Oiler underwent surgery to have the hip cleaned and drained. According to plaintiff, Oiler's hip prosthesis was eventually removed on May 8, 2001, due to the persistent infection. After the hip prosthesis was removed, Oiler allegedly experienced several post — operative complications. On June 30, 2001, Oiler suffered kidney and respiratory failure and she ultimately died on July 7, 2001.
P1. Pet., ¶ V. Plaintiff alleges that Oiler's urine culture showed "Vanco resistant enterococus species, specifically s. faeciu." Id.
P1. Pet., ¶ VI.
Id.
P1. Pet, at ¶ VII.
Id.
Id. The alleged post — operative complications include ileus, abdominal pain, and pancreatitus. Id.
On July 3, 2002, plaintiff, John Oiler, filed a petition in the Orleans Parish Civil District Court against Biomet and Howmedica Osteonics Corp. ("Howmedica"), alleging that the defendants were negligent in failing to properly screen, procure, process and distribute materials used in Ms. Oiler's hip replacement device and that such negligence was the cause of Oiler's death. Biomet was served with the petition on December 10, 2002. On December 20, 2002, defendants removed this action to this Court. Plaintiff timely filed a motion to remand on January 9, 2003. On September 17, 2003, this Court denied plaintiffs motion to remand this action and asserted jurisdiction pursuant to 28 U.S.C. § 1332. On September 25, 2003, this Court dismissed plaintiff's claims against Howmedica without prejudice.
P1. Pet., ¶ VII.
Rec. Doc. No. 1, Notice of Removal, ¶ 2.
See Rec. Doc. No. 1.
Rec. Doc. No. 3.
See Rec. Doc. No. 21.
Rec. Doc. No. 22.
Biomet moves the Court for summary judgment contending that plaintiff has not plead a cognizable claim pursuant to the Louisiana Products Liability Act ("LPLA"). Additionally, it argues that even if the Court construes the plaintiff's petition liberally, there is no evidence to establish that Biomet's products were defective or contaminated when they left Biomet's possession and control. Biomet contends that plaintiff cannot establish that its products were capable of causing, or did in fact cause or contribute to, Oiler's post — operative infection.
Plaintiff responds by arguing that genuine issues of material fact exist with respect to whether the products used in Oiler's surgery were sterile at the time they left Biomet's possession and control. Additionally, plaintiff claims that a genuine issue of material fact exists with respect to whether Dr. Millet, during Oiler's hospital stay, made certain statements to plaintiff and his wife pertaining to whether Oiler's infection could have been caused by the hip prosthesis implanted in Oiler. Finally, plaintiff claims that summary judgment is inappropriate because plaintiff has had only a limited opportunity to conduct discovery.
LAW AND ANALYSIS
I. Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non — moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106S.Ct.2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim") (citation omitted). Although this Court will draw every reasonable inference in favor of the nonmoving party, summary judgment is appropriate if the nonmoving party relies on "improbable inferences" and "unsupported speculation" to support a claim. See Int'l Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1266 (5th Cir. 1991) (quotation and citation omitted).
II. Adequate Time for Discovery
Rule 56(f) of the Federal Rules of Civil Procedure states:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavits facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The purpose of Rule 56(f) is to "provide non — movants with a much needed tool to keep open the doors of discovery in order to adequately combat a summary judgment motion." Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1993). To invoke the protections of Rule 56(f), the nonmovant must present an affidavit or other equivalent statement, preferably in writing, that conveys the need for additional discovery. Id. To obtain a continuance pursuant to Rule 56(f), a nonmovant must, (i) request extended discovery prior to the court's ruling on summary judgment; (ii) put the district court on notice that further discovery pertaining to the summary judgment motion is being sought; and (iii) demonstrate to the district court how the requested discovery pertains to the pending motion. Id. The nonmovant who complains that he has not had an adequate opportunity for discovery is "required to state with some precision the materials he hoped to obtain with further discovery, and exactly how he expected those materials would assist him in opposing summary judgment." Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1443 (5th Cir. 1993); see also Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 534-35 (5th Cir. 1999)("[T]o justify a continuance, the Rule 56(f) motion must demonstrate 1) why the movant needs additional discovery and 2) how the additional discovery will likely create a genuine issue of material fact.") (citing Krim, 989 F.2d at 1442). The nonmovant may not "simply rely on vague assertions that additional discovery will produce needed, but unspecified facts." Int'l Shortstop, 939 F.2d at 1267 (quoting SEC v. Spence Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)).
"Where the party opposing the summary judgment informs the court that its diligent efforts to obtain evidence from the moving party have been unsuccessful, 'a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course.'" Id. (quoting Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984) (quoting Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977))). "If, however, the nonmoving party has not diligently pursued discovery of that evidence, the court need not accommodate the nonmoving party's belated request," Id. "[T]he trial court need not aid non — movants who have occasioned their own predicament through sloth." Wichita Falls, 978 F.2d at 919 (citation omitted); see also Beanie v. Madison County School Dist., 254 F.3d 595, 606 (5th Cir. 2001) (affirming district court's denial of a Rule 56(f) continuance where plaintiff had sixteen days to file a motion for additional discovery but failed to pursue that discovery); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1396-97 (5th Cir. 1994) (affirming district court's denial of additional discovery where plaintiffs had conducted very little discovery for over one year before filing their Rule 56(f) motion).
Biomet's motion for summary judgment was filed on November 7, 2003. The motion was set for hearing on December 3, 2003. On November 24, 2003, plaintiff filed an opposition to Biomet's motion for summary judgment wherein plaintiff asserted that he had no opportunity to conduct discovery with respect to issues raised in the motion and, therefore, summary judgment was premature. Plaintiff candidly admitted that while plaintiff's motion to remand was pending before this Court, he had not conducted any discovery with respect to his claims against Biomet. Nevertheless, plaintiff pressed the argument that no discovery could have been undertaken in this action while the motion to remand was pending because, inter alia, he intended to destroy subject matter jurisdiction in the near future by adding non — diverse Louisiana medical providers to this action and, once again, move to remand this action to state court.
See Rec. Doc. No. 27.
Id.
Rec. Doc. No. 36.
Plaintiff's counsel attached an affidavit in which counsel attested that, prior to Biomet's motion for summary judgment, counsel was unaware that Biomet used an independent sterilization company, Steris Isomedix Services ("Steris"), to sterilize the components used in Oiler's hip replacement surgery. Counsel further attested that she had no opportunity prior to Biomet's filing of the summary judgment motion to conduct discovery with respect to Steris' role in the sterilization of the prosthetic components manufactured by Biomet. Although plaintiff did not specifically state what items of discovery were sought from Steris or how the requested discovery would create a genuine issue of material fact for trial, this Court exercised its discretion and continued the hearing on Biomet's motion until January 26, 2004.
Rec. Doc. No. 36, Affidavit of Christy M. Howley ("Aff. Howley"), at ¶ 3.
Rec. Doc. No. 37, minute entry dated November 25, 2003.
On January 15, 2004, a status conference was held at which plaintiffs counsel represented to this Court that the deposition of Rex White, Biomet's Director of Regulatory Compliance, had been conducted during the additional time allotted for discovery. Plaintiff did not inform the Court that he undertook discovery with respect to Steris. After discussion with counsel for both parties, the Court ordered plaintiff to promptly inform the Court in the event he noticed and conducted additional depositions prior to the hearing date. No additional depositions were noticed.
Rec. Doc. No. 39, minute entry dated January 15, 2004.
Pursuant to this Court's order, plaintiff filed an opposition to Biomet's motion for summary judgment on January 20, 2004. In plaintiffs latest submission, he disingenuously argues that summary judgment is inappropriate "due to the limited discovery allowed prior to the Motion hearing." The thrust of plaintiff's latest opposition is that White's deposition raised issues of material fact that require further discovery. With respect to the asserted issues raised by White's deposition, plaintiff does not specifically state what discovery he seeks nor how additional discovery would reveal a factual dispute which would preclude summary judgment. Additionally, in his motion, plaintiff argued that Dr. Millet's testimony might establish that a genuine issue of material fact exists with respect to whether Oiler's infections could have been caused by the prosthesis used in Oiler's hip replacement. However, on February 5, 2004, during a telephone conference, plaintiff's counsel advised the Court that plaintiff did not intend to depose Dr. Millet in connection with the pending motion.
Rec. Doc. No. 40, pl. opposition, at 1-2.
Although plaintiff has not filed a formal request for additional discovery pursuant to Rule 56(f), the Court recognizes that "so long as the nonmoving party indicates to the court by 'some equivalent statement, preferably in writing' of its need for additional discovery, the nonmoving party is deemed to have invoked the rule." Int'l Shortstop, 939 F.2d at 1266-67. Accordingly, the Court construes plaintiff's argument as a request for additional discovery pursuant to Rule 56(f).
See Rec. Doc. No. 41.
The Fifth Circuit has explicitly rejected plaintiff's argument that a lack of diligence in conducting discovery is justified because a motion to remand is pending before a court. In Carriere v. Sears, Roebuck Co., 893 F.2d 98; 102 (5th Cir. 1990), the Fifth Circuit, affirming the district court's denial of a Rule 56(f) continuance, stated:
This case was removed to federal court over four months before the hearing on the motions for summary judgment. The record reveals that the plaintiffs took little or no action toward completing discovery during this time.
The plaintiffs did not explain to the district court why they had not completed discovery in the time already allotted. The only — justification the plaintiffs offered for an additional delay was that the district court had not yet ruled on the motion to remand. The plaintiffs were not, however, entitled to have the trial judge rule on the motions in any particular order. Therefore, the fact that a motion for remand was pending does not excuse failing to pursue discovery diligently. Under these circumstances, the district court did not abuse its discretion in denying the plaintiffs a further continuance.Id.
As of this date, this action has been pending before this Court for over one year. Plaintiff chose to forego all discovery while the motion to remand was pending. Moreover, even after this Court ruled on plaintiffs motion to remand on September 17, 2003, plaintiff decided that because he would rather litigate this claim in state court, the appropriate strategy was to forego conducting discovery in favor of awaiting an opportunity to add non — diverse parties to this action and, hopefully, succeed in a second motion to remand. After it became apparent to plaintiff that Biomet was moving forward with its summary judgment motion, plaintiff first complained that no opportunity existed to undertake discovery, an allegation that is not supported by the record. Accordingly, the Court finds that consideration of Biomet's motion is not premature.
III. Construction or Composition Defect Pursuant to the LPLA
Pursuant to the Louisiana Products Liability Act ("LPLA"), there are four exclusive theories of recovery against a manufacturer for damage arising from their products. LSA-R.S. § 9:2800.52 (West 1997 Supp. 2004): Grenier v. Med. Eng'g Corp., 243 F.2d 200, 203 (5th Cir. 2001). In order to maintain a successful products liability action pursuant to the LPLA, a plaintiff must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product "unreasonably dangerous"; and (4) that the claimant's damage arose from a reasonably anticipated use of the product. Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 260-61 (5th Cir. 2002); see LSA-R.S. § 9:2800.54(A). A product is unreasonably dangerous "if and only if" (1) The product is unreasonably dangerous in construction or composition; (2) the product is unreasonably dangerous in design; (3) the product is unreasonably dangerous because an adequate warning about the product has not been provided; or (4) the product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product. LSA-R.S. § 9:2800.54(B).
Plaintiff claims that Biomet was negligent in failing to properly screen, procure, process, and distribute all materials used in Oiler's hip replacement. However, with respect to a manufacturer's liability for damage cause by its products, negligence is not available as a theory of recovery against a manufacturer, independent from the LPLA. Stahl, 283 F.3d at 261 (citation omitted). Construing plaintiffs complaint liberally, plaintiffs allegations support a claim that the hip replacement components were unreasonably dangerous in their construction or composition.
The "unreasonably dangerous in construction or composition" provision of the LPLA "provides a remedy for damages caused by a product that is defective due to a mistake in the manufacturing process." Stahl, 283 F.3d at 262-63; see LSA-R.S. § 9:2800.55. To establish that a product is "unreasonably dangerous in construction or composition," a plaintiff must establish that, "at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." LSA-R.S. § 9:2800.55.
In support of its summary judgment motion, Biomet submits the affidavit of Rex White, Biomet's Director of Regulatory Compliance, establishing that the components used in Oiler's hip replacement surgery were irradiated prior to leaving Biomet's control. White attests that the records of irradiation establish that the components were in a sterile condition at the time they left Biomet's possession and control. Biomet contends that White's affidavit, the accompanying exhibits and White's deposition testimony establish that the components used in Oiler's hip replacement surgery — were sterile and, therefore, not capable of causing Oiler's infection. Moreover, Biomet asserts that there is no record evidence that Biomet products did in fact cause or contribute to Oiler's infection.
See Rec. Doc. No. 27, Affidavit of Rex White ("Aff. White") Exs. A-Q.
Aff. White, ¶ 23. Biomet manufactured and sold sixteen components which were used in Oiler's hip replacement surgery. See id. The hip replacement components manufactured by Biomet are packaged in multiple — layer, sealed packaging and shipped by Biomet to an independent company for sterilization. See id.; see also Rec. Doc. No. 40, Ex. A., Deposition of Rex White ("Dep. White"), pp. 27-31. Fifteen of those components were irradiated by Steris Isomedix Services. One component, a titanium low profile screw, was manufactured by Biomet in Wales and irradiated by Isotron plc, a sterilization company located in Wales. Id. ¶ 14; Dep. White, p. 89:4-11.
Each component is assigned a product number and manufacturing lot number by Biomet. When the manufacturing lot is shipped to the irradiation facility, that lot is assigned a product code number which is cross — referenced with the manufacturing lot number and product number. After each lot is irradiated using gamma irradiation, the sterilization company certifies the irradiation. In addition to the certification by the sterilization company, irradiation of a product is indicated when an orange dot placed on the exterior of the packaging turns red. Dep. White, p. 26: 22-24; id. p. 45:14-21; see also Aff. White, Exs. B-Q(containing detailed step by step documentation of manufacturing process including placement of radiation indicator dots).
Plaintiff does not dispute that the components used during Oiler's surgery were shipped to irradiation facilities, irradiated by gamma irradiation, or that the sterilization companies certified the irradiation of the hip replacement components. Instead, relying on the deposition of Rex White, plaintiff argues that genuine issues of material fact exist with respect to whether the Biomet components were sterile because White's testimony revealed that, (1) the titanium low profile screw — was manufactured and sterilized in Wales, but White could not testify with respect to the packaging, shipping, or storage of that screw; (2) Biomet had received warning letters from the FDA, but White could not recall whether any of those letters discussed Biomet's procedures with respect to handling of products before they are sealed; and (3) Biomet used independent laboratories to conduct quality assurance testing, but White could not recall whether Biomet had received a test report indicating that a product not sterile when tested. In addition, plaintiff argues that the products may not have been sterile because (1) the "quarantine area" in which the products are warehoused after irradiation is not sterile; (2) employees in the finished goods warehouse do not wear protective suits; and (3) Biomet uses an independent trucking company, UPS, and Federal Express to transport the components rather than maintaining their own private trucking company or shipper. Finally, plaintiff suggests that it is unreasonable for Biomet to assume, based on the sterilization company's certification and the change of color of the irradiation indicator dot on the packaging, that the components sterilized by Steris or Isotron are in fact sterile.
Dep. White, p. 89:4-19.
Id., pp. 97-98.
Id., pp. 136-37.
Id., pp. 29-32.
Id., p. 41:3-8.
Id., p. 27:10-22; id. p. 28:18-21.
Relying on perceived shortcomings in White's deposition, plaintiff argues that Biomet has not conclusively established that the components used in Oiler's surgery were sterile. Plaintiff's argument is unpersuasive. Plaintiff fundamentally misunderstands his burden on summary judgment. When the defendant moves for summary judgment on the ground that the plaintiff will not sustain its burden of proof at trial, "the defendant may affirmatively offer evidence which undermines one or more of the essential elements of the plaintiff's case; or, the defendant may simply demonstrate that the evidence in the record falls short of establishing an essential element of the plaintiffs case." Int'l Shortstop, 939 F.2d at 1264. It is not Biomet's burden on summary judgment to conclusively prove that the components were sterile. Once Biomet has demonstrated the lack of record evidence to support the essential elements of plaintiff's claims, it is plaintiffs burden to present evidence that would allow a reasonable factfinder to find that the components were not sterile, i.e. that the components were "unreasonably dangerous in construction or composition" at the time they left Biomet's control.
Plaintiff has presented no evidence that would permit a reasonable factfinder to conclude that the particular components used in Oiler's surgery were not sterile at the time they left Biomet's control. Plaintiff's has not submitted any evidence that contradicts Biomet's evidence with respect to whether the components used in Oiler's surgery were irradiated. Instead, plaintiff seizes on White's inability to answer certain deposition questions and merely speculates, without any evidentiary support, that the components might not be sterile. White's lack of knowledge with respect to particular questions posed by plaintiff's counsel does not constitute affirmative evidence that the components were not sterile. Similarly, plaintiff's assertion that the components were not sterile because employees who handled the packaged and irradiated components worked in a non — sterile warehouse and did not wear protective suits does not support plaintiff's claim. Plaintiff has not submitted any evidence that the products, once packaged and irradiated, could be contaminated by employees or the environment in which they are stored. There is no evidence that the packaging was compromised or that the irradiation of the particular components used in Oiler's surgery was not effective. Absent such evidence, plaintiff's assertion is merely an unsupported hypothesis. Likewise, absent any evidence establishing that the transport of the components could affect the sterility of the Biomet products, the Court fails to see any relevance of Biomet's choice of shipping company.
With respect to whether Biomet's products caused Oiler's post — operative infection, plaintiff has submitted no evidence whatsoever. A determination of whether Oiler's post — operative complications could have been caused by a contaminated prosthesis, in addition to whether the prosthesis was in fact contaminated, are issues that require expert testimony; such a determination requires specialized medical knowledge not within the average person's common understanding. See Zachary v. Dow Corning Corp., 884 F. Supp. 1061, 1065 (E.D.La. 1995) (holding that issue of whether prosthesis was cracked required expert testimony and granting summary judgment because no such evidence was presented and plaintiff failed to assert any reason why such evidence was not obtainable during discovery); Sheridan v. Merck Co., Inc., 2003 WL 22902622, at *2 (E.D.La. Dec. 8, 2003) (holding that a plaintiff must submit expert testimony to prove that a prescription drug is unreasonably dangerous). Even assuming that Biomet's products were contaminated at the time they left Biomet's control, an assumption not warranted by the evidence presented to this Court, plaintiff has presented no expert testimony that the type of infection Oiler contracted could have been caused by a contaminated prosthesis. Because plaintiff has failed to present any evidence with respect to whether Biomet's products could have caused Oiler's infection, an element essential to plaintiffs case, there is no genuine issue of material fact that precludes summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Biomet Orthopedics, Inc., for summary judgment is GRANTED.