IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30641
_____________________
MARY LOUISE GRENIER;
STEVEN GRENIER,
Plaintiffs-Appellants,
versus
MEDICAL ENGINEERING CORP., ET AL,
Defendants,
MEDICAL ENGINEERING CORP.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
_________________________________________________________________
March 8, 2001
Before JOLLY, MAGILL* and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from a products liability case involving
silicone gel breast implants. In March 1983, Mary Grenier received
breast implants manufactured by Medical Engineering Corporation
(“MEC”). Eleven years later, Grenier sued MEC after learning that
silicone gel had leaked or “bled” through the implant shell. The
*
Circuit Judge of the Eleventh Circuit, sitting by
designation.
district court granted summary judgment for MEC. Grenier v.
Medical Engineering Corp., 99 F.Supp.2d 759 (W.D. La. 2000). The
district court concluded that (1) the 1988 Louisiana Products
Liability Act applied to Grenier’s claims; (2) Grenier could not
prevail on her defective design and failure to warn claims because
she had presented no evidence of a product defect; and (3)
Grenier’s redhibition claim was time-barred. We affirm.
I
Mary Grenier underwent breast augmentation surgery following
a double mastectomy in March 1983. The operating physician
inserted silicone gel breast implants manufactured by MEC.
By the early 1990s, Grenier began experiencing health problems
that she associated with her breast implants. In 1994, after
diagnostic tests indicated that the implant in Grenier’s left
breast might have ruptured, Grenier’s physician surgically removed
both implants. Although the surgeon concluded that the left
implant had not ruptured, he also discovered 75 to 100 cc of
silicone gel outside the implant shell but within the scar tissue
capsule in Grenier’s left breast. The district court and the
parties refer to this phenomenon of “silicone gel pass[ing] through
the shell of the implant without any noticeable structural defect
in the implant shell itself” as “gel bleed.” Grenier, 99 F.Supp.2d
at 761.
Grenier filed a complaint against MEC in the United States
District Court for the Western District of Louisiana in May 1994.
2
Grenier’s case was then transferred to the Multi-District
Litigation Court (MDL-926) in the Northern District of Alabama,
where it remained for four and a half years. For reasons not
relevant to this appeal, Grenier’s case was remanded to the
district court in Louisiana in January 1999.
Grenier’s complaint listed fifteen theories of liability,
including defective design, defective manufacture, failure to warn
of the potentially dangerous nature of the product, breach of
warranty, negligent misrepresentation, and redhibition. In April
2000, the district court granted MEC’s motion for summary judgment
and dismissed all of Grenier’s claims. Grenier now appeals.1
II
We review a district court’s grant of summary judgment de
novo, applying the same substantive test set forth in Federal Rule
of Civil Procedure 56(c). See Horton v. City of Houston, 179 F.3d
188, 191 (5th Cir. 1999).
A
The first issue on appeal is whether the 1988 Louisiana
Products Liability Act (“LPLA”) applies to Grenier’s claims. This
question is significant to the various theories asserted by Grenier
because the LPLA establishes four exclusive theories of product
liability: defective design, defective manufacture, failure to
1
While Grenier’s appeal was pending, this court granted the
appellees’ unopposed motion to dismiss as to appellee Surgitek,
Inc.
3
warn, and breach of warranty. See LA. REV. STAT. ANN. § 9:2800.52
(West 1997)(“A claimant may not recover from a manufacturer for
damage caused by a product on the basis of any theory of liability
that is not set forth in the Chapter.”). The LPLA applies only to
causes of action that accrued on or after September 1, 1988. Brown
v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995).
Therefore, the narrow question before us is when Grenier’s cause of
action accrued.
Under Louisiana law, “A cause of action accrues when a
plaintiff may bring a lawsuit. In a negligence action, for
instance, the claimant must be able to allege fault, causation, and
damages.” Id. at 526-27. In this case, the cause of action
accrued when Grenier suffered some physical injury because of her
breast implants.2
Grenier has presented no medical evidence of when her injuries
may have occurred. (The only evidence remotely relevant to this
question is Grenier’s testimony that she began experiencing pain in
her back and shoulders sometime after 1990.) In this respect,
2
The district court failed to differentiate the question of
when damages occurred from the question of when the plaintiff
became aware of the damages. See Grenier, 99 F.Supp.2d at 762. As
we understand Louisiana law, the first question determines when a
cause of action accrues; the second determines when a tolled
prescription period begins to run. Thus, in cases involving latent
injury, the cause of action accrues when damages are first
suffered, but the prescription period does not run until such time
as a reasonable plaintiff would become aware of the connection
between her injured condition and the defendant’s tortious actions.
See Brown, 52 F.3d at 527.
4
Grenier’s case is indistinguishable from Arabie v. R.J. Reynolds
Tobacco Co., 698 So.2d 423, 425 (La. App. 5 Cir. 1997), in which a
smoker, who was diagnosed with lung cancer in 1992, presented no
evidence as to when the damage to his lungs began. A Louisiana
appeals court held that the LPLA was the plaintiff’s exclusive
remedy because he had “failed to introduce a single piece of
evidence” supporting his claim that his lung damage occurred prior
to 1988. Id. Similarly, Grenier has introduced no evidence--and
certainly no medical expert testimony--indicating that she suffered
any injury prior to September 1988, when the LPLA took effect.
Grenier, relying exclusively on Cole v. Celotex Corp., 599
So.2d 1058 (La. 1992), argues that her cause of action accrued in
March 1983, when she received the breast implants. But Cole is not
relevant to the issue before us. Cole involved a comparative fault
statute that applied to “claims arising from events that occurred”
after August 1980. The Louisiana Supreme Court explained that in
long-latency occupational disease cases, the “events” contemplated
by the statute would include “repeated tortious exposures” to
asbestos or other disease-causing agents. Id. at 1066. Because
the plaintiffs in Cole were exposed to asbestos before August 1980,
the comparative fault statute did not apply. But, as the Louisiana
Supreme Court recently observed, the holding in Cole “turned on
[the] unique language” of the comparative fault statute. Walls v.
American Optical Corp., 740 So.2d 1262, 1271-72 (La. 1999). To
5
repeat, the comparative fault statute did not apply to causes of
action that accrued after the effective date of the statute;
instead, the statute applied to causes of action “arising from
events” occurring after the effective date. This unusual statutory
language was highly significant in Cole, where the plaintiff’s
exposure to asbestos (the “events” giving rise to the suit)
occurred many years before he suffered damages from the exposure
and before his cause of action accrued. The LPLA, on the other
hand, applies to causes of action that accrued after the statute’s
effective date. For this reason, the “exposure rule” of Cole
cannot be read so expansively as to apply to LPLA cases.
In sum, although the events giving rise to Grenier’s injuries
occurred in 1983, that fact has no bearing on the question of when
the injuries occurred and the cause of action accrued. As there is
no evidence suggesting that the damages occurred before September
1988, the LPLA applies to Grenier’s claims.
B
As noted above, the LPLA establishes four exclusive theories
of liability: defective design, defective construction, failure to
warn, and breach of warranty. The district court dismissed all of
Grenier’s LPLA claims because she had failed to present any
competent evidence of a defect.
Grenier tried to prove that the implants were defective by
calling the court’s attention to Barrow v. Medical Engineering
6
Corp., 1998 WL 812318 (M.D. Fla. 1998), a lengthy district court
opinion in a case involving a different type of implant and
different injuries. Grenier did not argue that MEC was
collaterally estopped from relitigating certain factual issues
related to question of defect. See, e.g., RecoverEdge L.P. v.
Pentecost, 44 F.3d 1284, 1290 (5th Cir. 1995). Instead, in her
complaint she simply “adopt[ed]” twenty-seven pages of the
Barrow court’s findings of fact. Because this method of presenting
evidence is not allowed under Rule 10(c) or any other Federal Rule
of Civil Procedure, the district court properly refused to consider
the Barrow opinion as evidence.
Because the Barrow opinion is not evidence, the record is
devoid of proof regarding defective design or construction. This
lack of evidence is fatal to Grenier’s LPLA claims because, as this
court has noted, “‘Louisiana law does not allow a fact finder to
presume an unreasonably dangerous design solely from the fact that
injury occurred.’” Krummel v. Bombardier Corp., 206 F.3d 548, 551
(5th Cir. 2000)(quoting McCarthy v. Danek Medical, Inc., 65
F.Supp.2d 410, 412 (E.D. La. 1999)).
C
Grenier’s most plausible LPLA claim is that MEC failed to warn
her or her physician about the possibility of “gel bleed.”
The district court dismissed Grenier’s failure to warn claim
because she had presented no evidence of a defect: “Without an
adequate showing of a dangerous defect, this Court cannot impose a
7
duty to warn on [MEC].” Grenier, 99 F.Supp.2d at 765. The
district court’s formulation of this rule may be somewhat
misleading. The language of the LPLA provides that a plaintiff may
prevail on her failure to warn claim if “[1] the product possessed
a characteristic that may cause damage and [2] the manufacturer
failed to use reasonable care to provide an adequate warning of
such characteristic and its danger to users and handlers of the
product.” LA. REV. STAT. ANN. § 9:2800.57 (West 1997). Thus, even
if a product is not defectively designed or constructed, a
manufacturer may still have a duty to warn consumers about any
characteristic of the product that unreasonably may cause damage.3
See, e.g., Hesse v. Champ Serv. Line, 758 So.2d 245, 249 (La. App.
3 Cir. 2000); Dunne v. Wal-Mart Stores, Inc., 679 So.2d 1034, 1038
(La. App. 1 Cir. 1996).
The exact question under section 9:2800.57, then, is not
whether MEC failed to warn Grenier that its breast implants were
defective. To prevail on her failure to warn claim, Grenier would
need to show only that “gel bleed” is a potentially damage-causing
characteristic of MEC’s breast implants and that MEC failed to use
reasonable care to provide an adequate warning.
However, Grenier presented no evidence about the cause,
frequency, severity, or consequences of “gel bleed” with regard to
3
Of course, manufacturers have no duty to warn of dangers that
are obvious to ordinary users. See Morgan v. Gaylord Container
Corp., 30 F.3d 586, 591 n.7 (5th Cir. 1994).
8
the implants at issue in this case. Without a proper understanding
of the implants’ damage-causing characteristics, the scope of MEC’s
duty to warn is unclear. For this reason, we conclude that
Grenier’s failure to warn claim was properly dismissed.4
D
Grenier’s principal non-LPLA claim is in redhibition.
Redhibition is the avoidance of a sale on account of some defect in
the product that would render an item useless or so inconvenient to
use that it would be presumed that a buyer would not have bought
the thing had he known of the defect. LA. CIV. CODE ANN. art. 3492
(West 1999).5
4
Grenier also argues that the district court misconstrued
Louisiana’s learned intermediary doctrine. (In cases involving
medical devices, the manufacturer’s duty to warn is owed to the
physician, not the patient.)
As an alternative ground for dismissing the failure to warn
claim, the district court concluded that Grenier had presented no
evidence that “a proper warning would have changed the decision of
the treating physician, i.e., that but for the inadequate warning,
the treating physician would not have used or prescribed the
product.” Willett v. Baxter Int’l, 929 F.2d 1094, 1098-99 (5th
Cir. 1991). Grenier’s lone item of evidence was a four-page
affidavit from a plastic surgeon (who was not Grenier’s treating
physician) who stated that he would not have recommended breast
implants if MEC had warned about the possible dangers of “gel
bleed.” This evidence of what the affiant personally would have
done cannot suffice to prove causation under the learned
intermediary doctrine. As this court has explained, in order to
show causation, “a plaintiff may introduce either objective
evidence of how a reasonable physician would have responded to an
adequate warning, or subjective evidence of how the treating
physician would have responded.” Thomas v. Hoffman-LaRoche, Inc.,
949 F.2d 806, 812 (5th Cir. 1992)(applying Mississippi law). In
this case, Grenier presented neither.
5
The exclusivity provisions of the LPLA have been held not to
be a bar to redhibition actions. “The LPLA was never intended to
9
The district court ruled that Grenier’s redhibition claim was
time-barred. In 1995, the Louisiana legislature amended the
redhibition statutes to provide that all redhibition claims
“prescribe ten years from the time of the perfection of the
contract regardless of whether the seller was in good or bad faith.
See [Civil Code] Art. 3499.” LA. CIV. CODE ANN. art. 2534, Revision
Comment (b). Relying on this comment, the district court concluded
that Grenier’s redhibition claim was not timely because it was
filed in May 1994, eleven years after the contract between Grenier
and MEC had been perfected. Grenier, 99 F.Supp.2d at 763-64.
The district court failed to address the question whether this
new, ten-year prescription period applies retroactively to
contracts formed before the effective date of the amendment. In
Cole v. Celotex, the Louisiana Supreme Court articulated the test
for determining whether a statute may be applied retroactively.
The first step is to “ascertain whether in the enactment the
legislature expressed its intent regarding retrospective or
prospective application. If the legislature did so, our inquiry is
at an end.” Cole, 599 So.2d at 1063.
The January 1995 revisions to Article 2534 were part of a 1993
Act (“Act 841”) that revised Book III, Title VII of the Civil Code.
The note entitled “Revision of Title VII” reads as follows: “The
eliminate redhibition as a means of recovery against a
manufacturer. . . . The right to sue in redhibition for economic
loss still exists.” Monk v. Scott Truck & Tractor, 619 So.2d 890,
893 (La. App. 3 Cir. 1993)(emphasis added).
10
provisions of this Act shall have prospective application only and
shall not affect any sales transaction executed before January 1,
1995, which sales transactions shall be governed by the law in
effect prior thereto.” SEE WEST’S LA. STAT. ANN., CIVIL CODE, Vol. 10,
p. 2. The only possible conclusion, then, is that the legislature
intended that the revised Article 2534 (including the ten-year
prescription period) should apply only to those contracts perfected
after January 1, 1995.
Notwithstanding this expression of legislative intent, the
district court assumed that Article 2534 may be applied
retroactively. Grenier, 99 F.Supp.2d at 763-64; see also Tiger
Bend, LLC v. Temple-Inland, Inc., 56 F.Supp.2d 686 (M.D. La. 1999).
Although the general rule is that prescriptive periods are treated
as procedural laws and apply retroactively, courts must still
address the threshold question of legislative intent. According to
Cole, when the legislature does not intend for a statute to apply
retroactively, the court’s “inquiry is at an end.”6 The district
6
Moreover, the Louisiana Supreme Court has recognized that the
retroactive application of prescription periods may, in some cases,
raise due process problems. In Lott v. Haley, 370 So.2d 521, 524
(La. 1979), the Louisiana Supreme Court held that “where an injury
has occurred for which the injured party has a cause of action,
such cause of action is a vested property right which is protected
by the guarantee of due process” in both the federal and the state
constitutions. Thus, a prescription period may not be applied
retroactively if it would “eliminate [a] plaintiff’s vested right
to sue on his pre-existing cause of action without providing a
reasonable period following its enactment to assert his claim.”
Id.; see also Falgout v. Dealers Truck Equipment Co., 748 So.2d
399, 407-08 (La. 1999). These decisions suggest that even if the
legislature had intended Article 2534 to apply retroactively, the
11
court thus erred in dismissing Grenier’s redhibition claim as time-
barred.
MEC presents several alternative reasons why summary judgment
is proper on the redhibition claim. As we have often explained,
this court may affirm a summary judgment on any basis raised below
and supported by the record. See, e.g., Lady v. Neal Glaser
Marine, Inc., 228 F.3d 598, 601 (5th Cir. 2000). In its motion for
summary judgment, MEC pointed out that a redhibtion claim requires
a showing of some vice or defect in the thing sold and that Grenier
had failed to submit evidence on the alleged defects in MEC’s
breast implants. Because she presented no competent evidence of
defect, Grenier’s redhibition claim is without merit.
E
Finally, Grenier asks this court to remand the case to reopen
discovery. For obvious reasons, Grenier would like more time to
prepare expert reports, depose expert witnesses, and prepare
dispositive motions. The basis for her request is that she
proceeded pro se from July 19987 until December 1999, several weeks
after MEC had filed its motion for summary judgment. However, we
see no equitable reasons for remanding this case.
Louisiana courts would have permitted Grenier’s redhibition claim
to proceed.
7
In a motion presented to the district court, Grenier stated
that she had “fired” her first attorney in July 1998, while the
case was still pending in the MDL court. Her first attorney did
not file a motion to withdraw until March 1999 and was not formally
dismissed until June.
12
This case was filed in May 1994, immediately transferred to
the MDL court, and then remanded to the district court in January
1999. Although we accept Grenier’s contention that she contacted
six attorneys between March and September 1999, none of whom
decided to enroll as counsel, we must also note that the record
suggests that Grenier was not averse to proceeding pro se. Even
though she was pro se, Grenier chose to proceed with the case
during the spring of 1999 and requested a status conference in
July, at which time the district court encouraged her to obtain an
attorney unless she wanted to proceed pro se. Grenier never
requested a continuance during these stages in the litigation. In
August, the court issued a scheduling order with deadlines for
witness lists, designation of experts, and dispositive motions.
Grenier missed the first of these deadlines, and there is no
indication that she attempted to notify the court in advance that
she would be unable to meet the deadline. Three weeks after the
deadline had passed, Grenier sought a continuance and filed a
motion to upset the scheduling order.8
In December 1999, Grenier finally found a second attorney, who
has performed admirably under the circumstances. Over the next few
months, the district court held MEC’s motion for summary judgment
in abeyance, gave Grenier extra time to file motions and depose
8
In this October 1999 motion, Grenier requested that the case
be continued until November 2000, by which time her husband would
have finished law school and passed the Louisiana bar exam.
13
witnesses, and allowed her to amend her complaint (twice), add
three expert witnesses to her witness list, and file (out of time)
an affidavit in opposition to MEC’s motion for summary judgment.
Finally, on April 25, the court granted MEC’s motion for summary
judgment and dismissed all of Grenier’s claims.
Based on our review of the record, we believe that Grenier had
ample opportunity to present evidence supporting her claims, but
she failed to do so. Under these circumstances, we find no reason
to remand the case to reopen discovery.
III
For the reasons outlined above, the summary judgment for MEC
is
A F F I R M E D9
9
The appellants’ motion to certify a question of law to the
Louisiana Supreme Court is DENIED.
14