* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 98-30207

______________________________________

DOLORES ELLIOTT, 

Plaintiff-Appellant, 

versus

ACROMED CORPORATION; ET AL,

Defendants,

SYNTHES; SYNTHES, INC.;

SYNTHES NORTH AMERICA, INC.,

Defendants-Appellees.

_____________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-CV-2863-F)

_____________________________________________

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
2

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
3

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.