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this opinion should not be published and is not precedent except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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 99-30966

Summary Calendar

_________________

CALVIN HORNBECK,

Plaintiff-Appellant,

versus

DANEK MEDICAL, INC.; ET AL.,

Defendants,

DANEK MEDICAL, INC.; SOFAMOR-DANEK

GROUP, INC.; SOFAMOR, INC.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(96-CV-2559)

_________________________________________________________________

July 5, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Concerning the summary judgment awarded Danek Medical, Inc.,

and the other defendants, at issue are whether the pedicle screw

device sold by Danek was defective in design; and whether Danek had

adequately warned the treating physician. 

Calvin Hornbeck had spinal fusion surgery in October 1992.

His physician used Danek’s product to help successfully achieve

fusion. After surgery, Hornbeck continued to have severe pain and

numbness in his back and legs. In September 1993, his doctor
- 2 -

removed Danek’s product from the left side of Hornbeck’s spine.

Two years later, another doctor removed it from the right side.

Hornbeck contends that Danek’s product is defective under the

Louisiana Product Liability Act (LPLA), LA. REV. STAT. ANN. §§

9:2800.51-.59 (West 2000). “Under the LPLA, there are four

theories under which a plaintiff may demonstrate that a product is

defective.” Theriot v. Danek Medical, Inc., 168 F.3d 253, 255 (5th

Cir. 1999). Hornbeck claims two: (1) the product is defective in

design; and (2) the product was unreasonably dangerous, due to

inadequate warning.

For a defective design claim, pursuant to LA. REV. STAT. ANN. §

9:2800.56 (West 2000), Hornbeck must demonstrate that an

alternative design exists. Instead, he claims alternative methods

of treatment should have been used.

For the failure to provide adequate warning claim, and

“[b]ecause this case involves a medical product, the learned

intermediary doctrine applies”. Id. at 256. Under this doctrine,

Danek must inform Hornbeck’s doctor, the learned intermediary, of

the risks of the product.

Hornbeck’s failure to warn claim is based on the following

assertions: the product’s labeling was inadequate, because it only

applied when the product was not used for a pedicle screw implant;

the product was inadequately tested; the doctor was not informed

that the product was not FDA approved; and the product was overpromoted.
- 3 -

Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law”. FED. R. CIV. P. 56(c). We

review a grant of summary judgment de novo, applying the same

criteria as the district court. E.g., Conkling v. Turner, 18 F.3d

1285, 1295 (5th Cir. 1994).

The district court held the design defect claim failed,

because (1) Hornbeck had not identified alternative designs, and

(2) alternative methods of treatment are not alternative designs.

See Theriot, 168 F.3d at 255-56. It held the failure to warn claim

failed, because Hornbeck’s doctor was clearly aware of the “risks

and possible implications involving” the pedicle screw instrument.

Essentially for the reasons stated by the district court, the

summary judgment was proper. See Theriot, 168 F.3d at 255-56;

Hornbeck v. Danek Medical, Inc., No. 96-CV-2559 (W.D. La. 5 Aug.

1999).

AFFIRMED