Background Facts
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.”
Bruno brought a products liability suit against Biomet on September 25, 2020, seeking damages under the Louisiana Products Liability Act. 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. Finding Bruno’s claims were prescribed, the district court granted summary judgment. Bruno timely appealed.
Prescription
Louisiana law provides a one-year liberative prescription period for products-liability cases. Typically, prescription commences to run from the day injury or damage is sustained. But under 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. 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.”
Discovery Rule
Under the discovery rule, constructive knowledge requires more than a mere apprehension something might be wrong. However, when a plaintiff suspects something is wrong, he must seek out those whom he believes may be responsible for the specific injury. The duty to act requires an investigation of the injury. The discovery rule applies only when such ignorance is not willful and does not result from negligence. In other words, when 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. In this inquiry, reasonableness is assessed in light of the plaintiffs’ education and intelligence. Summary judgment is inappropriate where reasonable minds could differ as to the applicability of contra non valentem.
Federal Appellate Court Opinion
The United States Court of Appeals for the Fifth Circuit (“Federal Appellate Court”) stated in its opinion filed on July 21, 2023, “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. 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.”
“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 … Bruno alleges he was not aware the device could cause the infection—indeed, he was told expressly it could not … 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. As the record stands, when the prescriptive period expired, and whether contra non valentum applies, is a question best left for the jury.”
Source Bruno v. Biomet, Incorporated, No. 22-30405.
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