IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-30207
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DOLORES ELLIOTT,
Plaintiff-Appellant,
versus
ACROMED CORPORATION; ET AL,
Defendants,
SYNTHES; SYNTHES, INC.;
SYNTHES NORTH AMERICA, INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2863-F)
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February 12, 1999
Before JOLLY, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
In this products liability case implicating the design defect
facet of the Louisiana Products Liability law (“LPLA”) and its
requirement that the claimant prove, inter alia, the existence of
a superior alternative design, Plaintiff-Appellant Dolores Elliott
asks us to reverse the district court’s grant of summary judgment
dismissing her case. Elliott’s claims of reversible error by the
district court in its denial of her motion for a continuance of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
discovery and its grant of summary judgment to Defendants-Appellees
(“Synthes”), rely on two incidents of delayed compliance by Synthes
with discovery requirements, one of which was sanctioned. The
incident that drew a sanction is the delayed delivery by Synthes of
some 25,000 documents in the multi-district litigation proceedings
styled “In re: Orthopedic Bone Screw Products Liability
Litigation,” MDL No. 1014, to which Elliott’s case had been
transferred and from which it was subsequently remanded to the
Eastern District of Louisiana. The second tardy delivery of
documents relied on by Elliott is the post-summary judgment
production by Synthes, pursuant to orders of the court in MDL 1014,
of the 1991 version of a Synthes manual recommending the “Notched
Plate” system for spinal fixation, thereby differing from the 1979
version of the same manual, which recommended the “Dynamic
Compression Plate” system actually used in Elliott’s operation in
1987. In essence, Elliott contends that if she had been granted a
continuance and thus obtained additional time in which to produce
evidence of an available superior alternative design, she could
have done so by examining the myriad documents delivered both
before and after summary judgment.
Having completed our review of the record on appeal and our
consideration of the applicable law and the arguments of the
parties as advanced in their respective appellate briefs and orally
to this court, we are satisfied that the district court did not
abuse its discretion in denying Elliott’s continuance motion; and
we are equally satisfied by our de novo review that the court’s
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grant of summary judgment in favor of Synthes was proper. Counsel
for Elliott concedes that a subsequent perusal of the 25,000
documents disclosed nothing that would help to satisfy Elliott’s
Louisiana burden of producing an alternate design; therefore the
denial of a continuance was not only a proper exercise of
discretion, but was non-prejudicial as well.
As for Elliott’s claim grounded in Synthes’ post-judgment
delivery of the evidence regarding the two manuals, she has failed
to demonstrate how — even if this material were in the record of
her case, which it is not — she could meet her alternate design
burden. Elliott’s products liability claim of design defect
features the placement of a screw into a pedicle, a procedure
common to both the earlier Dynamic Compression Plate design and the
later Notched Plate design. The design of the screw itself,
though, appears to have remained unchanged, and it is the design of
the failed screw on which Elliott’s products liability claim is
based.
The rulings of the district court and its grant of summary
judgment in favor of Synthes are therefore, in all respects,
AFFIRMED.
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