Products Liability Law Reporter

The Fifth Circuit Court of Appeals held that the question of whether a patient’s products liability suit against a medical device manufacturer was prescribed was one for the jury to determine.

Andrew Bruno suffered complications after undergoing shoulder surgery in 2016 to implant a prosthetic device with parts manufactured by Biomet, Inc. In 2018, when evidence of infection arose, his treating physician removed the device. In September 2019, Biomet sent a letter to hospitals, advising that certain medical devices, including the kind implanted in Bruno, were subject to a field safety corrective action. The hospital advised Bruno about the letter but said the devices used in his surgery were sterilized and could not cause infection. The following year, Bruno sued Biomet, Inc., seeking damages under the Louisiana Products Liability Act. The district court concluded that the plaintiff’s claims were prescribed and granted summary judgment for the defense.

Reversing, the Fifth Circuit noted that Louisiana provides a one-year prescriptive period for products liability cases. Under the contra non valentum doctrine, the court said, prescription is tolled under certain circumstances, including where a cause of action is not known or reasonably knowable by the plaintiff. The court concluded that whether the doctrine tolled the prescriptive period here is a jury question. The court reasoned that the plaintiff alleged he was not aware the device could cause an infection and was told expressly that it could not. Moreover, the court found that Biomet presented no evidence Bruno could have discovered its device caused an infection. Alternatively, the court said that it is unclear whether Bruno stopped suffering complications after the device was removed, which would have put him on notice of any fault on the part of Biomet before he received information about the company’s letter.

Consequently, the court remanded, concluding that the jury must decide when the prescriptive period had expired and whether contra non valentum applied to the plaintiff’s claims.

Citation: Bruno v. Biomet, Inc., 2023 WL 4674331 (5th Cir. July 21, 2023).

Plaintiff counsel: AAJ member Michael C. Ginart Jr. and Joyce D. Young, both of Chalmette, La.; and Walter Rimmer Woodruff Jr., Metairie, La.