Grenier v. Medical Engineering Corp.

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