REVISED 3/19/99

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30044

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WAYNE THERIOT, individually and on behalf

of his two minor children, Micah Theriot and

Raine Theriot; LYNN THERIOT; DONOVAN THERIOT,

Plaintiffs-Appellants,

MICAH THERIOT; RAINE THERIOT,

Movants-Appellants,

versus

DANEK MEDICAL, INC., ET AL.,

Defendants,

DANEK MEDICAL, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Eastern District of Louisiana

________________________________________________________________ March 10, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

PER CURIAM:

Wayne Theriot appeals a district court summary judgment ruling

in favor Danek Medical, Inc. (“Danek”). He argues that the

district court erred when it concluded that he failed to provide

evidence that the pedicle screw sold by Danek was defective in

design and when it concluded that Danek had adequately warned the2

treating physician of potential side effects. As we find no error

on the part of the district court, we affirm.

I

Danek sells multiple c omponent systems that are used as

internal fixation devices for the treatment of degenerative,

traumatic, and other disorder s of the spine. Orthopedic and

neurological surgeons who specialize in spinal procedur e s use

c omponents of Danek’s systems as an adjunct to spinal fusion

surgery to immobilize the vertebrae.

As part of a series of treatments for his back problems,

Theriot underwent surgery in which his orthopedic surgeon, Dr.

Charles R. Billings, used Danek plates and pedicle screws to help

achieve fusion. The parties contest the success of the operation.

Theriot claims he is now in constant pain and needs another

operation to remove the Danek components. Danek claims that the

products accomplished a solid fusion and that none of the plates

and screws has broken, loosened, or failed.

Theriot sued Danek, claiming that the pedicle screws sold by

Danek were defective. On October 3, 1994, the suit was transferred

to the Eastern District of Penn sylvania for multidistrict

litigation, In re: Orthopedic Bone Screw Prod ucts Liability

Litigation , MDL 1014. The suit was then remanded back to the

Eastern District of Louisiana with advice from the MDL court that

“discovery has been completed with rega rd to substantially all3

issues.” I n re: Orthopedic Bone Screw Products Liability

Litigation

, MDL 1014 at 10 (E.D. Pa. Aug. 29, 1997) (Pretrial Order

No. 1056).

The district court granted summary judgment for Danek on the

o nly remaining claim--that Danek had violated the Louisiana

Products Liability Act (“LPLA”), LSA R.S. 9:2800 .52 et seq.

Theriot then filed a motion to reconsider, which was denied, and

appealed to this court. While the case was on appeal, Theriot

claims to have discovered new evidence withheld by Danek that, if

known, would have led the district court to deny Danek’s motion for

summary judgment. Theriot filed motions in this court requesting

us to grant a stay and to order the district court to reconsider

its summary judgment motion. Both motions were denied. In

addition, Theriot filed a motion in the district court pursuant to

rule 60(b)(2) seeking r elief from the district court’s final

judgment. That motion also was denied.

II

Summa ry judgment is proper if “the pleadings, depositions,

answers to interrogatories and admissions on file, together with

affidavits, if any, show that there is no genuine dispute as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Fed.R.Civ.P. 56(c). A summary judgment ruling

is reviewed de novo

, applying the same criteria employed by the4

district court. Conkling v. Turner , 18 F.3d 1285, 1295 (5th Cir.

1994).

Und er the LPLA, there are four theories under which a

plaintiff may demonstrate that a product is defective. On appeal,

Theriot only alleges two of them: (1) that the product was

defective in design and (2) that the product was unreasonably

dangerous due to inadequate warning.

A

Under the LPLA, in order to p rove that a product has a

defective design, the plaintiff must show that an alternative

design existed capable of preventin g the claimant’s damage. La.

Rev. Stat. § 9:2800.56. Because Theriot did not present evidence

of an alternative design to the pedicle screw sold by D anek, the

district court held that a rational trier of fact could not

conclude that the product was defective.

Theriot advances four arg uments to challenge this holding:

(1) that the surgical treatments that do not use pedicle screws

should be considered alternative designs under the LPLA; (2) that

there was evidence of other alternative designs; (3) that, in this

case, e vidence of an alternative design is unnecessary; and (4)

that new evidence withheld by Danek would have dem onstrated the

existence of an alternative design.

Theriot claims that the product at issue here is a product

whose purpose is to provide biomechanical stability. Theriot5

therefore argues that other products that do not use pedicle screws

should be considered as alternative designs, such as external neck

braces or internal systems that use hooks or wires. Underlying

this argument is the assumption that all pedicle screws are

defective and there can be no system using pedicle screws that

would be an acceptable product. The problem with this argument is

that it really takes issue with the choice of treatment made by

Theriot’s physician, not with a specific fault of the pedicle screw

sold by Danek.

Theriot next argues that there existed alternative designs to

the pedicle screws used by Danek. Theriot does not explain,

however, how he presented evidence of an alternative design to the

district court. It may well be that an alternative pedicle screw

design exists that Theriot could have relied on in making his

claim. In order to reverse the summary judgment ruling, however,

Theriot must show that he presented such a design to the attention

of the district court.

Theriot also claims that he should not have to present

evidence at the summary judgment phase that he has an alternative

design. Instead, if he can show the grievous extent to which the

product causes harm, he should be able to proceed to a jury trial.

This argument asks the court to disregard the requirements of the

LPLA and the district court properly refused to do so.6

Finally, Theriot argues that because Danek withheld

information about alternative designs, Th eriot should be able to

rely on his newly discovered evidence in responding to the motion

for summary judgment. It is not necessary for us to determine

whether the district court was correct in its ruling on the

appellant’s 60(b)(2) motion since the appellant has failed to

demonstrate that the withheld information would have provided the

appellant with evidence sufficient to satisfy his burden of

establishing the existence of an alternate design under the LPLA.

After a review of the rec ord, a study of the briefs, and

consideration of the oral argument presented in this case, we

conclude that the district court did not err in holding that

Theriot failed to demonstrate an alternative design under the LPLA.

We find this failure fatal to Theriot’s claim that the Danek’s

product was unreasonably dangerous due to a design defect.

B

Theriot’s sec ond claim is that Danek failed to provide

adequate warnings. Because this case involves a medical product,

the learned intermediary doctrine applies. See, e.g.

, Willett v.

Baxter Intern., Inc.

, 929 F.2d 1094, 1098-99 (5th Cir. 1991).

Under the learned intermediary doctrine, Danek had an obligation to

inform Dr. Billings of the risks of pedicle screw s. Despite the

fact that Dr. Billings has testified that he was fully apprised of

the potential risks of the product, Theriot argues that Danek did7

not fulfill this obligation. Theriot argues that because Danek did

not adequately test the product, Danek co uld not properly inform

Dr. Billings of the risks and, since Dr. Billings cannot have been

properly informed, his belief that he was is irrelevant.

In essence, Theriot is arguing that he should be permitted to

proceed to trial if Danek cannot de monstrate that it adequately

tested its product. There is no basis in the LPLA or case law for

such a rule and we therefore conclude that the district court did

not err in granting summary judgment.

III

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.