Case: 22-30405 Document: 00516828778 Page: 1 Date Filed: 07/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 21, 2023
No. 22-30405 Lyle W. Cayce
____________ Clerk
Andrew Bruno,
Plaintiff—Appellant,
versus
Biomet, Incorporated; Unidentified Parties; Zimmer,
Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2706
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
In this diversity case, Andrew Bruno sued Biomet Inc. and Zimmer,
Inc. (collectively, “Biomet”) under the Louisiana Products Liability Act
(“LPLA”). The district court found Bruno’s claims were prescribed and
granted summary judgment in favor of Biomet. Finding that the ultimate
question of prescription is best left for the jury to determine, we VACATE
the district court’s summary judgment order and REMAND for further
proceedings consistent with this opinion, including any additional discovery
the district court may order.
Case: 22-30405 Document: 00516828778 Page: 2 Date Filed: 07/21/2023
No. 22-30405
I.
In December 2016, Andrew Bruno had shoulder surgery to implant a
prosthetic device with parts manufactured by Biomet. Two-weeks postoperation, Bruno followed-up with his surgeon, Dr. Doulens, and reported
some clear drainage at the bottom of his incision. Although the doctor did not
think an infection caused the drainage, he prescribed antibiotics. Over the
next 14 months, Bruno repeatedly returned to the hospital with post-op
complications. Bruno’s doctor believed the complications were caused by a
superficial skin-related infection, possibly a suture reaction. Then, in January
2017, when a sampling of the drainage tested positive for Enterobacter cloacae
bacteria, Dr. Doulens recommended an incision and drainage procedure. In
May 2017, the doctor performed the procedure, finding the device was
normal with no evidence of infection. With the continuing problems, Dr.
Doulens and Bruno discussed options. Bruno elected to remove the device.
By this point, there was an “obvious . . . deep infection” affecting the joint
and the device. Once a prosthesis is infected, according to expert reports in
the record, it is difficult to clear and doctors recommend removing it. On
November 1, 2018, Dr. Doulens performed the removal surgery.
On September 25, 2019, Biomet sent a letter to hospitals advising that
certain medical devices, including the kind implanted in Bruno, were part of
a Field Safety Corrective Action because “these devices were subject to
cleaning processes that could result in elevated levels of bacterial endotoxin
and residual debris remaining on the devices.” Bruno’s hospital notified
Bruno about Biomet’s letter that same month but advised him that “[t]he
devices used during [his] procedure were sterilized and therefore cannot
cause infection.”
2
Case: 22-30405 Document: 00516828778 Page: 3 Date Filed: 07/21/2023
No. 22-30405
Bruno brought this products liability suit against Biomet on
September 25, 2020, seeking damages under the LPLA. 1 Biomet moved for
summary judgment, arguing that Bruno’s claims were prescribed and,
alternatively, that Bruno failed to provide sufficient evidence that the device
was unreasonably dangerous. 2 Finding Bruno’s claims were prescribed, the
district court granted summary judgment. 3 Bruno timely appealed.
II.
We review grants of summary judgment de novo. 4 “Summary
judgment is appropriate where ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” 5 We view
the evidence in the light most favorable to the non-movant and make all
reasonable inferences in their favor. 6
_____________________
1
Bruno filed in Louisiana state court. Biomet removed the case to the Eastern
District of Louisiana under diversity jurisdiction.
2
Biomet also argued that many of Bruno’s claims were barred by the LPLA, as the
LPLA “provides the exclusive theories of liability for manufacturers for damage caused by
their products,” Marable v. Empire Truck Sales of La., LLC, 2016-0876, p. 14 (La. App. 4
Cir. 6/23/17), 221 So. 3d 880, 893, writ denied, 2017-1469 (La. 11/13/17),
230 So. 3d 210.
The district court found that Bruno’s negligence and tort-related claims were barred by the
LPLA. Bruno does not appeal this finding.
3
The district court did not address whether Bruno provided sufficient evidence to
support his claims.
4
In re Taxotere (Docetaxel) Prod. Liab. Litig., 995 F.3d 384, 388 (5th Cir. 2021)
(citation omitted).
5
Id. (quoting FED. R. CIV. P. 56(a)).
6
Id. (citation omitted).
3
Case: 22-30405 Document: 00516828778 Page: 4 Date Filed: 07/21/2023
No. 22-30405
III.
A.
“Louisiana law provides a one-year liberative prescription period for
products-liability cases.” 7 Typically, “prescription commences to run from
the day injury or damage is sustained.” 8 But “[u]nder the doctrine of contra
non valentem, the prescriptive period begins to run ‘on the date the injured
party discovers or should have discovered the facts upon which his cause of
action is based.’” 9 The doctrine tolls prescription under any of four
“exceptional circumstances,” one of which is “where the cause of action is
not known or reasonably knowable by the plaintiff,” termed the “discovery
rule.” 10
Under the discovery rule, “[c]onstructive knowledge . . . requires
more than a mere apprehension something might be wrong.” 11 However,
“when a plaintiff suspects something is wrong, he must ‘seek out those
whom he believes may be responsible for the specific injury.’” 12 “The duty
to act requires an investigation of the injury.” 13 The discovery rule “applies
_____________________
7
Id. (citing LA. CIV. CODE art. 3492 and Stewart Interior Contractors, L.L.C. v.
MetalPro Indus., L.L.C.,
130 So. 3d 485, 489 (La. Ct. App. 2014)).
8
Id. (quoting LA. CIV. CODE art. 3492).
9
Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888, 893 (5th Cir. 2010) (quoting
Griffin v. Kinberger,
507 So. 2d 821, 823 (La. 1987)).
10
Taxotere, 995 F.3d at 390–91 (quoting Morgan v. Entergy New Orleans, Inc., 2016-
1250, p. 5, 13 (La. App. 4 Cir. 12/6/17); 234 So. 3d 113, 116, 120).
11
Aker Mar., 604 F.3d at 894 (quoting Strata v. Patin,
545 So. 2d 1180, 1189 (La.
App. 4 Cir. 1989)).
12
Id. (quoting Jordan v. Emp. Transfer Corp.,
509 So. 2d 420, 423 (La. 1987)).
13
Taxotere, 995 F.3d at 392 (citing Jordan, 509 So. 2d at 423–24 and Rozas v. Dep’t
of Health & Hum. Res., State of La., 522 So. 2d 1195, 1197 (La. Ct. App. 1988)).
4
Case: 22-30405 Document: 00516828778 Page: 5 Date Filed: 07/21/2023
No. 22-30405
only when such ignorance is not willful and does not result from
negligence.” 14 In other words, “[w]hen a plaintiff acts reasonably to discover
the cause of a problem, ‘the prescriptive period [does] not begin to run until
[he has] a reasonable basis to pursue a claim against a specific defendant.’” 15
In this inquiry, “reasonableness is assessed ‘in light of [the plaintiffs’]
education [and] intelligence.’” 16 “Summary judgment is inappropriate
where reasonable minds could differ as to the applicability
of contra non valentem.” 17
As Bruno filed his complaint on September 25, 2020, his claims are
timely if the prescription period began on or were tolled until September 25,
2019. 18 Our analysis proceeds in two parts. We first ask whether Bruno’s
claims were facially prescribed. As that is uncontested, we ask whether contra
non valentem tolled the prescription period until the suit was filed. That
question, as we will explain, is best left to a jury.
_____________________
14
Id. at 391 (quoting Cartwright v. Chrysler Corp.,
232 So. 2d 285, 287 (La. 1970)).
15
Aker Mar., 604 F.3d at 894 (quoting Jordan,
509 So. 2d at 424) (second and third
alteration in original).
16
Taxotere, 995 F.3d at 393 (quoting Campo v. Correa, 2001-2707, p. 12 (La.
06/21/02); 828 So. 2d 502, 511) (alterations in original).
17
Id. at 389 (citing M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov’t, 2015-860,
p. 19 (La. App. 4 Cir. 12/2/15);
182 So. 3d 312, 324).
18
See Id. at 388.
5
Case: 22-30405 Document: 00516828778 Page: 6 Date Filed: 07/21/2023
No. 22-30405
B.
Three opinions guide our hand, In re Taxotere, Hoerner v. Wesley–
Jensen, Inc., 19 and Jenkins v. Bristol-Myers Squibb Co. 20 We address each in
turn.
In Taxotere, a group of women permanently lost their hair after
undergoing chemotherapy treatment for breast cancer. 21 Under Louisiana
law, “contra non valentem tolled the prescription period until the point when
[the women] through the exercise of reasonable diligence should have
‘considered [the chemotherapy drug] as a potential root cause of’” one’s hair
loss. 22 “A reasonable inquiry into the cause of one’s persistent hair loss
would likely include consult[ing] with doctors,” or “search[ing] for the cause
herself.” 23 One plaintiff “asked her dermatologist to give her something to
make her hair regrow, but she did not inquire into the cause of the hair loss
or its persistence.” 24 By failing to consult with doctors or explore options
about the cause of their persistent hair loss, the women “did not act
reasonably in light of their injuries.” 25 We noted that with a quick internet
_____________________
19
95–0553, p. 2 (La. App. 4 Cir. 11/20/96); 684 So. 2d 508, writ denied, 96–30347
(La. 2/7/97);
688 So. 2d 501.
20
689 F. App’x 793, 795–97 (5th Cir. 2017) (unpublished) (per curiam).
21
Id. at 387.
22
Id. at 392–93 (quoting Oil Ins. Ltd. v. Dow Chem. Co., 2007-0418, p. 9 (La. App.
1 Cir. 11/2/07); 977 So. 2d 18, 23, writ denied, 2007-2319 (La. 2/22/08);
976 So. 2d 1284).
23
Id. at 393. While the Supreme Court of Louisiana guides that reasonableness is
assessed “in light of [the plaintiffs’] education [and] intelligence,” id. at 393 (quoting
Campo, 88 So. 2d at 511), we concluded that “[t]o the extent what was discovered was
difficult to understand, the patient’s consulting her oncologist, dermatologist, or other
treating physician as to the meaning of the information would be part of diligence.” Id.
24
Id.
25
Id. at 395.
6
Case: 22-30405 Document: 00516828778 Page: 7 Date Filed: 07/21/2023
No. 22-30405
search the women could have discovered the drug was a possible explanation
for their hair loss. 26 Because the women were “charged with knowledge of all
that a reasonable inquiry would have revealed,” we held that they failed to
“raise[] a genuine dispute of material fact that a reasonable inquiry would
have left them without knowledge” and affirmed summary judgment. 27
In Hoerner, a plaintiff developed an eye infection from her contact
lenses, ultimately resulting in the need for a corneal transplant. 28 The
plaintiff argued the prescriptive period began to run when she read an article
on the increased likelihood of infection in users of extended-wear contact
lenses, not from the date of her corneal transplant, because she was unaware
at the time of her surgery that her contact lenses were the cause of her
infection. 29 Instead, the plaintiff “believed that she was the unfortunate
recipient of an ubiquitous germ like one who contracts measles or a cold.” 30
A Louisiana appellate court agreed, finding that the plaintiff was not put on
notice of any fault of the contact lens manufacturer until she read the article. 31
In contrast, in Jenkins, we affirmed a summary judgment finding that
a plaintiff had constructive notice that his medication was causing his
twitching when his doctor told him to stop taking a medication because he
suspected it may be causing the plaintiff’s twitch. 32 Jenkins “knew that his
_____________________
26
Id. at 394.
27
Id. at 394–95 (citing Cartwright, 232 So. 2d at 287).
28
684 So. 2d at 509.
29
Id. at 510.
30
Id.
31
Id. at 514.
32
Jenkins, 689 F. App’x at 795–97. “Jenkins knew that his twitching may have been
related to Abilify [more than one year prior to the filing of the suit] in April 2013.” Id. at
796. We found that testimony persuasive in that case.
7
Case: 22-30405 Document: 00516828778 Page: 8 Date Filed: 07/21/2023
No. 22-30405
[medical issues] may have been related” to a prescription medicine when,
after experiencing tremors, his doctor expressed concerns about the
medication. 33 We found, based on the undisputed facts before the Court, that
Jenkins, for more than a year, was aware of cognizable injuries potentially
connected to the medicine he was taking. 34
C.
Bruno argues the prescription period began in September 2019 when
his hospital notified him of Biomet’s poor cleaning process. Biomet counters
that the period began at latest when Bruno had the device surgically
removed. 35
Unlike the women in Taxotere, Bruno did consult his doctor, who
thought his infection could have come from a suture reaction. 36 And unlike
the defendants in Taxotere, Biomet presented no evidence that Bruno could
have discovered its device caused the infection. Although Biomet did disclose
when it discovered the problem with its devices cleaning protocols, it did not
notify hospitals until September 2019.
And like the eye patient in Hoerner, Bruno alleges he was not aware
the device could cause the infection—indeed, he was told expressly it could
not. Just as the court in Hoerner held that the patient was not put on notice of
any fault of the contact lens manufacturer until she read an article linking the
_____________________
33
Id. at 796–97.
34
Id. at 797.
35
Biomet argues that like the women in Taxotere, Bruno had constructive notice of
possible causes of the infection and “failed to act reasonably in light of his injuries.”
36
See Taxotere, 995 F.3d at 393–95.
8
Case: 22-30405 Document: 00516828778 Page: 9 Date Filed: 07/21/2023
No. 22-30405
two, Bruno argues he was not put on notice of any fault of Biomet’s until he
received notice of its letter.
Biomet argues that like the plaintiff in Jenkins, Dr. Doulens’ actions
placed Bruno on constructive notice that Biomet could be at fault for his
injuries. In Jenkins, we affirmed summary judgment against a plaintiff when
his doctor told him to stop taking a medication because he suspected it may
have caused the plaintiff’s twitch. 37 Unlike the doctor in Jenkins however,
Bruno’s doctor never told Bruno he suspected the device was causing
Bruno’s injuries. Instead, Dr. Doulens recommended removing the device
once it was obviously infected because such infections are challenging to
clear, a common medical response.
On the one hand, a jury could reasonably determine that contra non
valentem tolled the prescription period until September 2019—given Bruno’s
consultations with his doctor, a medical professional. But on the other hand,
a jury could just as reasonably determine that contra non valentem tolled
prescription until some point in time before September 2019. It is unclear
whether Bruno stopped suffering complications from infections after the
removal, such that his recovery after the device’s removal would have put
him on notice of any fault of Biomet’s before the letter was received. 38 As the
_____________________
37
Jenkins, 689 F. App’x at 795.
38
See Campo, 828 So. 2d at 510–11 (“Constructive knowledge is whatever notice is
enough to excite attention and put the injured party on guard and call for inquiry.”). We
reject the implicit assertion that, as a matter of law, an individual is not allowed to rely on
the advice and counsel of a treating physician on complex matters of medicine. But to that
end, the parties fail to cite evidence that would tend to support whether Bruno’s post-removal symptoms or complications were like those he had pre-removal, if his treatments
pre- and post-removal were the same, or if the frequency of his doctor’s visits changed pre- and post-removal.
9
Case: 22-30405 Document: 00516828778 Page: 10 Date Filed: 07/21/2023
No. 22-30405
record stands, when the prescriptive period expired, and whether contra non
valentum applies, is a question best left for the jury.
IV.
Alternatively, Biomet argues it is entitled to summary judgment
because Bruno failed to produce sufficient evidence for his LPLA claims. 39
The district court did not address this ground for summary judgment. To be
sure, “we may affirm summary judgment on any basis supported by the
record even if not reached by the district court.” 40 That said, as a “general
rule,” we do “not consider an issue not passed upon below.” 41 We follow
suit here; as the district court did not address whether Bruno produced
sufficient evidence to survive summary judgment on one or more of his LPLA
claims, we decline to address it in the first instance and leave the merits of
Bruno’s claims to the district court.
…
For the foregoing reasons, we VACATE the district court’s
summary judgment order and REMAND to the district court for further
_____________________
39
Under the LPLA, a manufacturer is “liable to a claimant for the damage
proximately caused by a characteristic of the product that renders the product unreasonably
dangerous when such damage arose from a reasonably anticipated use of the product by the
claimant or another person.” Marable, 221 So. 3d at 893 (citing La. R.S. 9:2800.54(A)). “A
product may be deemed ‘unreasonably dangerous’ in one of four ways: construction or
composition, design, inadequate warning[,] or nonconformity with an express warranty.”
Id. (citing LA. RS 9:2800.54(B) and Young v. Logue, 94-0585, p. 30 (La. App. 4 Cir.
5/16/95),
660 So. 2d 32, 53). Bruno alleges Biomet’s device is unreasonably dangerous for
all four reasons, and Biomet argues Bruno failed to produce sufficient evidence that its
device meets any of those conditions.
40
Taxotere, 995 F.3d at 388.
41
Pena v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (quoting
Humphries v. Elliott Co.,
760 F.3d 414, 418 (5th Cir. 2014)).
10
Case: 22-30405 Document: 00516828778 Page: 11 Date Filed: 07/21/2023
No. 22-30405
proceedings consistent with this opinion, including any additional discovery
the district court may order.
11
