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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BRUCE C. BAPTIST CIVIL ACTION 

VERSUS NO. 17-12718 

C.R. BARD, INC., ET AL. SECTION "B"(5) 

ORDER AND REASONS 

Defendants filed a Motion to Dismiss Plaintiff’s Complaint 

for failure to state a claim. Rec. Doc. 7. Plaintiff timely filed 

an opposition. Rec. Doc. 18. For the reasons discussed below, 

IT IS ORDERED that the motion to dismiss (Rec. Doc. 7) is 

DENIED with respect to Plaintiff’s inadequate warning and 

redhibition claims and GRANTED with respect to all other claims. 

Plaintiff shall have twenty-one (21) days to amend his complaint 

to address the deficiencies identified in this Order and Reasons. 

If Plaintiff does not correct those deficiencies within twentyone (21) days, the deficient claims will be DISMISSED WITH 

PREJUDICE. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

On November 11, 2015, Plaintiff Bruce Baptist underwent 

surgery to repair an inguinal hernia. See Rec. Doc. 15 ¶ 6. 

Plaintiff’s surgeon inserted PerFix Mesh, a product allegedly 

manufactured by Defendants C. R. Bard, Inc. and Davol Inc., into 

Plaintiff’s body during the first surgery. See id. ¶¶ 6, 8. On 

October 16, 2017, Plaintiff suffered “inflammation, pain and 

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recurrence requiring additional surgery[,]” allegedly because of 

the mesh used during his surgery. See id. ¶ 7. On November 17, 

2017, Plaintiff brought suit under the Louisiana Products 

Liability Act (LPLA), in addition to other state law causes of 

action, for the injuries he allegedly suffered from Defendants’ 

mesh. See Rec. Doc. 1. Plaintiff later amended his complaint to 

incorporate additional factual allegations, but did not add new 

claims or parties. See Rec. Doc. 15. 

In his Amended Complaint, Plaintiff alleges that the mesh 

used in his surgery is made of polypropylene. See id. ¶¶ 9, 11. 

Defendants allegedly manufacture the mesh by assembling multiple 

sheets of mesh on top of each other into a single, multi-layer, 

piece of mesh. See id. The holes in the mesh are allegedly one 

millimeter across. See id. ¶ 30. 

Plaintiff further alleges that the mesh used in his surgery 

suffered from various infirmities—some due to the design of the 

mesh and others due to Defendants’ failure to properly manufacture 

the mesh. Plaintiff alleges that these infirmities were defects 

under the LPLA. First, Plaintiff claims that the mesh did not 

conform to Defendants’ specifications because it was made of 

“substandard, adulterated, and non-medical grade polypropylene.” 

Id. ¶ 24. Second, Plaintiff alleges that Defendants’ mesh was more 

dangerous than necessary because the holes were too small and mesh 

included too many layers. See id. ¶¶ 30, 31. These characteristics 

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allegedly allowed bacteria to grown in the mesh after surgery and 

made the mesh more irritating to surrounding tissue. See id. Third, 

Plaintiff alleges that the “Instructions for Use” of the mesh did 

not adequately warn of risks posed by the mesh, particularly that 

the risk of adverse side effects was greater than with other types 

of mesh. See id. ¶¶ 37-41. Fourth, Plaintiff alleges that 

Defendants breached an express warranty that the mesh “was a safe 

and effective treatment for hernias, reasonably fit for intended 

purposes, and of merchantable quality.” Id. ¶ 46. In addition to 

his claims under the LPLA, Plaintiff also brought claims for 

redhibition, negligence, and breach of implied warranties. See id.

¶¶ 50-68. 

After Plaintiff filed his initial Complaint, but before 

Plaintiff filed his Amended Complaint, Defendants filed the 

instant motion to dismiss, arguing that Plaintiff’s factual 

allegations are insufficient to state a claim for relief. See Rec. 

Doc. 15. Plaintiff timely filed an Opposition. See Rec. Doc. 18. 

LAW AND ANALYSIS 

To survive a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a plaintiff’s complaint “must contain ‘enough 

facts to state a claim to relief that is plausible on its face.’” 

Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 

deciding whether a plaintiff has met his burden, a court “accept[s] 

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all well-pleaded factual allegations as true and interpret[s] the 

complaint in the light most favorable to the plaintiff, but 

‘[t]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements’ cannot establish facial 

plausibility.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 

512, 520 (5th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009)) (some internal citations and quotation marks omitted). 

Plaintiff alleges four claims under the Louisiana Products 

Liability Act (LPLA) and four other state law claims.1 To prevail 

under the LPLA, a plaintiff must show that (1) the defendant 

manufactured the product, (2) the plaintiff’s damage was 

“proximately caused by a characteristic of the product,” (3) the 

characteristic made the product “unreasonably dangerous,” and (4) 

the plaintiff’s damage resulted from a reasonably anticipated use 

of the product. See La. Rev. Stat. § 9:2800.54(A). A product can 

be unreasonably dangerous (1) “in construction or composition,”2

 

1 Plaintiff argues that Defendants’ motion to dismiss is moot because Plaintiff 

filed an amended complaint after Defendants filed their motion to dismiss. See

Rec. Doc. 18 at 5-6. A defendant who has filed an initial motion to dismiss 

does not need to file another motion to dismiss when a plaintiff amends a 

complaint. See 6 Wright & Miller, Federal Practice and Procedure § 1476 (2005). 

“If some of the defects raised in the original motion remain in the new pleading, 

the court simply may consider the motion as being addressed to the amended 

pleading.” Id. Here, the amended complaint does not raise new claims or involve 

new parties. Compare Rec. Doc. 1 with Rec. Doc. 15. Therefore, because of the 

substantial similarities between the pleadings, the Court will address the 

motion to dismiss to the amended complaint. Cf. Jefferson Cmty. Health Care 

Ctrs., Inc. v. Jefferson Par. Gov’t, No. 16-12910, 2016 WL 4429953, at *2 (E.D 

La. Aug. 22, 2016). 

2 See La. Rev. Stat. § 9:2800.55. 

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(2) “in design,”3 (3) because there is an inadequate warning,4 or 

(4) because it failed to “conform to an express warranty.”5 See 

id. § 9:2800.54(B). A plaintiff bears the burden of proving all 

elements of an LPLA claim. Id. Plaintiff has brought an LPLA claim 

under each theory of unreasonable dangerousness. 

Plaintiff’s Amended Complaint satisfies the two preliminary 

requirements of the LPLA, that the defendants be manufacturers and 

the plaintiff be injured by a reasonably anticipated use of the 

product. A manufacturer includes an “entity who is in the business 

of [producing, making, fabricating, constructing, [or] designing] 

a product for placement into trade or commerce.” Id.

§ 9:2800.53(1). The definition also encompasses an “entity who 

labels a product as his own or who otherwise holds himself out to 

be the manufacturer of the product.” Id. § 9:2800.53(1)(a). 

Plaintiff alleges that the mesh used in his surgery was branded as 

a Bard product. See Rec. Doc. 15 ¶ 2(A). Plaintiff also alleges 

that “Defendants researched, designed, developed, tested, 

manufactured, labeled, [and] packaged” the mesh. See id. ¶ 8. 

Therefore, Plaintiff has stated facts that, if true, establish 

that Defendants are manufacturers under the LPLA. 

Plaintiff has also adequately pled that he was injured by a 

reasonably anticipated use of Defendants’ product. Plaintiff 

 

3 See La. Rev. Stat. § 9:2800.56. 4 See La. Rev. Stat. § 9:2800.57. 5 See La. Rev. Stat. § 9:2800.58. 

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alleges that he was injured when Defendants’ mesh was used during 

Plaintiff’s hernia surgery. See id. ¶ 6. Plaintiff also alleges 

that Defendants intended the mesh to be used in hernia repair 

surgery. See id. ¶ 8. Therefore, Plaintiff has alleged that any 

injuries he suffered from the mesh were the result of a reasonably 

anticipated use. 

Plaintiff’s first LPLA claim is for a “construction or 

composition” defect. See Rec. Doc. 15 ¶¶ 20-25 (citing La. Rev. 

Stat. § 9:2800.55). “A product is unreasonably dangerous in 

construction or composition if, at the time the product left its 

manufacturer’s control, the product deviated in a material way 

from the manufacturer’s specifications or performance standards 

for the product or from otherwise identical products manufactured 

by the same manufacturer.” La. Rev. Stat. § 9:2800.55. A plaintiff 

“must show not only what a manufacturer’s specifications or 

performance standards are for a particular product, but how the 

product in question materially deviated from those standards so as 

to render it unreasonably dangerous.” Lyles v. Medtronic Sofamor 

Danek, USA, Inc., 871 F.3d 305, 311 (5th Cir. 2013). A deviation 

is material when it “increases the propensity for injury . . . .” 

Roman v. W. Mfg., Inc., 691 F.3d 686, 698 (5th Cir. 2012). A 

plaintiff must also show how the alleged deviation caused the 

plaintiff’s injury. See Rayford v. Karl Storz Endoscopy Am., Inc., 

No. 15-2835, 2016 WL 4398513, at *4-5 (W.D. La. June 22, 2016). 

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Plaintiff fails to state a claim for a “construction or 

composition” defect. Plaintiff alleges that Defendants’ mesh used 

“substandard, adulterated, and non-medical grade polypropylene,” 

which “did not conform to Defendants’ specifications or 

performance standards.” See Rec. Doc. 15 ¶ 24. Even assuming that 

this statement sets out Defendants’ specifications or performance 

standards, which is a stretch given the lack of factual detail, 

Plaintiff’s allegations do not show that the deviation was material 

or that the deviation was the cause of Plaintiff’s injury. 

Plaintiff repeatedly states that all “[p]olypropylene is toxic 

when inserted into the human body.” Id. ¶ 11; see also id. ¶¶ 12-

13. Plaintiff does not offer any facts to suggest that the 

“substandard, adulterated, and non-medical grade polypropylene” 

allegedly used in Defendants’ mesh was more dangerous than the 

allegedly toxic polypropylene that Defendants intended to use in 

the mesh. Nor does Plaintiff offer any facts to suggest that the 

use of allegedly “substandard, adulterated, and non-medical grade 

polypropylene” caused different or more severe injuries than would 

have occurred if the mesh were properly constructed. Plaintiff’s 

allegations therefore do not support a claim for a “construction 

or composition” defect. See Rayford, 2016 WL 4398513, at *4-5; cf. 

Rollins v. St. Jude Med., 583 F. Supp. 2d 790, 800-01 (W.D. La. 

2008). 

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Plaintiff’s second LPLA claim is for a “design defect.” See

Rec. Doc. 15 ¶¶ 26-32 (citing La. Rev. Stat. § 9:2800.56). To state 

a claim for a design defect, a plaintiff must plead that “there 

existed an alternative design for the product that was capable of 

preventing the [plaintiff’s] damage” and that the benefits of 

adopting the alternative design outweighed the costs, both in terms 

of any increased burden on the manufacturer and any decreased 

utility of the product. See La. Rev. Stat. § 9:2800.56. Plaintiff 

alleges that Defendants’ mesh was defective because (1) its pores 

are too small and (2) it is comprised of more than one layer of 

material. See Rec. Doc. 15 ¶¶ 14, 30. Plaintiff further alleges 

that these design flaws cause pain and inflammation, especially as 

the mesh contracts after surgery. See id. Finally, Plaintiff 

alleges that a “safer and more effective alternative design[]” 

would have been “a flat, uncoated, single layer, porous mesh.” Id.

¶ 31. 

However Plaintiff does not allege that the improvements 

represented by this alternative design “outweighed the burden on 

the manufacturer of adopting such alternative design.” La. Rev. 

Stat. § 9:2800.56. Absent an allegation that implementing the 

alternative design would not have been overly burdensome, 

Plaintiff has failed to state a claim for a design defect. See 

Lewis v. Baxter Int’l Inc., NO. 16-16391, 2017 WL 661324, at *4 

(E.D. La. Feb. 17, 2017). “The Court is mindful that much of the 

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evidence in [medical device] products liability cases may be in 

the defendant's possession, and thus, without the benefit of 

discovery, stating more specific allegations may be nearly 

impossible at this stage, but” Plaintiff must still plead every 

element to state an LPLA design defect claim. Id. Here Plaintiff 

does not even mention the burden that Defendants would face in 

implementing the alleged alternative design. 

Plaintiff’s third LPLA claim is for inadequate warning. See

Rec. Doc. 15 ¶¶ 33-42 (citing La. Rev. Stat. § 9:2800.57). “To 

recover for a failure to warn . . . , a plaintiff must show: (1) 

that the defendant failed to warn the [plaintiff’s] physician of 

a risk associated with the use of the product, not otherwise known 

to the physician, and (2) that the failure to warn the physician 

was both a cause in fact and the proximate cause of the plaintiff's 

injury.” Hargrove v. Boston Sci. Corp., No. 13-3539, 2014 WL 

4794763, at *11 (E.D. La. Sept. 24, 2014). Here, Plaintiff alleges 

that the PerFix Mesh Instructions for Use contained various 

warnings about the risks of the product, but that the warnings did 

not fully disclose the “duration, frequency, or severity” of the 

risks. See, e.g., Rec. Doc. 15 ¶¶ 38, 40. Plaintiff also alleges 

that the allegedly inadequate warning related to “pain” and 

“recurrence[,]” which are two of the injuries that Plaintiff 

allegedly suffered. See id. ¶¶ 7, 37, 38. Finally, Plaintiff 

alleges that his physician would not have used Defendants’ product 

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in Plaintiff’s surgery if an adequate warning had been provided. 

See id. ¶ 41. Therefore, Plaintiff has stated a claim under the 

LPLA that Defendants’ product was unreasonably dangerous because 

of an inadequate warning. See Donald v. AstraZeneca Pharm., LP, 

No. 16-17753, 2017 WL 1079186, at *3 (E.D. La. Mar. 22, 2017) 

(reasoning that allegation that defendant failed to “properly 

warn[] of the risks of kidney injuries” was sufficient to state a 

claim); Lewis v. Baxter Int’l Inc., No. 16-16391, 2017 WL 661324, 

at *4-5 (E.D. La. Feb. 17, 2017) (explaining that plaintiff “is 

not required to detail what an adequate warning would be” to state 

a claim). 

Plaintiff’s fourth LPLA claim is for breach of an “express 

warranty.” See Rec. Doc. 15 ¶¶ 43-49 (citing La. Rev. Stat. 

§ 9:2800.58). “A product is unreasonably dangerous when it does 

not conform to an express warranty . . . if the express warranty 

has induced the [plaintiff] or another person or entity to use the 

product and the [plaintiff]'s damage was proximately caused 

because the express warranty was untrue.” La. Rev. Stat. 

§ 9:2800.58. An express warranty is a “representation, statement 

of alleged fact or promise about a product or its nature, material 

or workmanship that represents, affirms or promises that the 

product or its nature, material or workmanship possesses specified 

characteristics or qualities or will meet a specified level of 

performance.” Id. § 9:2800.53(6). An express warranty is not a 

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“general opinion about or general praise of a product.” Id.

Moreover, representations that a product is “safe” or “effective 

and safe for its intended use” do not create an express warranty 

because such statements are nothing beyond a general opinion or 

praise. See Doe v. AstraZeneca Pharm. LP, No. 15-438, 2015 WL 

4661814, at *4 (E.D. La. Aug. 5, 2015); Corley v. Stryker Corp., 

No. 13-02571, 2014 WL 3375596, at *5 (W.D. La. May 27, 2014). 

Plaintiff fails to state a claim for breach of an “express 

warranty” because Plaintiff (1) does not plead an express warranty 

with any level of particularity and (2) does not plead that an 

express warranty induced his use of the product. Without explaining 

who made the following statements or in what context the following 

statements were made, Plaintiff alleges that Defendants warranted 

the following: “that PerFix Mesh was a safe and effective treatment 

for hernias, reasonably fit for intended purposes, and or 

merchantable quality[;]” “that the risks, side effects, and 

complications associated with PerFix Mesh were minimal and 

comparable to other hernia mesh products[;]” and “that PerFix Mesh 

was adequately researched and tested.” Rec. Doc. 15 ¶ 46. These 

are the types of generic expressions of opinion and praise that 

fail to state a claim under the LPLA. See La. Rev. Stat. 

§ 9:2800.53(6) (“general opinion about or general praise of a 

product” is not an express warranty); Doe, 2015 WL 4661814, at *4 

(explaining that similar statements did not state a claim under 

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the LPLA); Corley, 2014 WL 3375596, at *5 (same). Moreover, 

Plaintiff never alleges that these statements induced his use of 

the product, which is also grounds to dismiss the claim. See Parra 

v. Coloplast Corp., No. 16-14696, 2017 WL 24794, at *4-5 (E.D. La. 

Jan. 3, 2017) (reasoning that failure to allege inducement 

supported dismissal of express warranty claim); Corley, 2014 WL 

3375596, at *5 (same). Plaintiff only alleges that Defendants 

“intended” the public to rely on their express warranties; that is 

not an adequate allegation because the statute requires actual 

inducement. See La. Rev. Stat. § 9:2800.58. 

Because Plaintiff has adequately alleged that Defendants’ 

product was defective because of an inadequate warning, 

Plaintiff’s redhibition claim may also be viable. Under Louisiana 

law, a plaintiff has a cause of action for redhibition when a 

product has defects that “render [] the thing useless, or its use 

so inconvenient that it must be presumed that a buyer would not 

have bought the thing had he known of the defect.” La. Civ. Code 

art. 2520. Such a defect gives the buyer “the right to obtain 

rescission of the sale.” Id. 

A plaintiff may make a claim under the LPLA and in 

redhibition; however, redhibition is available only to the extent 

the plaintiff seeks to recover the value of the product or other 

economic loss. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 251 

(5th Cir. 2002). As discussed above, Plaintiff has adequately 

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alleged that Defendants’ mesh had some defect that rendered it 

useless and that he would not have used Defendants’ mesh had he 

known of such defect. See Rec. Doc. 15 ¶ 55. However, Plaintiff’s 

damages as to this claim are limited to the cost of the product 

and other economic damages that Plaintiff suffered. See Guillory 

v. Pellerin, No. 07-1683, 2009 WL 1010816, at *2 (W.D. La. Apr. 

14, 2009) (citing Aucoin v. S. Quality Homes, LLC, 2007-1014, pp. 

8-9 (La. 2/26/08); 984 So.2d 685, 692); Barrette v. Dow 

Agrosciences, LLC, No. 02-1677, 2002 WL 31365598, at *3-4 (E.D. 

La. Oct. 18, 2002). 

Plaintiff’s three remaining claims for negligence, breach of 

warranty of fitness for ordinary use, and breach of implied 

warranty of merchantability and fitness are precluded by the LPLA. 

The LPLA sets forth the “exclusive theories of liability for 

manufacturers for damage caused by their product.” La. Rev. Stat. 

§ 9:2800.52. “A [plaintiff] may not recover from a manufacturer 

for damage caused by a product on the basis of any theory of 

liability that is not set forth in th[e] [LPLA].” Id. Therefore, 

Plaintiff’s remaining non-LPLA claims must be dismissed. See 

Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1248, 1250-

51 (5th Cir. 1997) (affirming dismissal of claims for “negligence, 

fraud by misrepresentation, market share liability, breach of 

implied warranty of fitness and civil conspiracy” because of the 

LPLA’s exclusivity provision); see also, e.g., Stroderd v. Yamaha 

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Motor Corp., U.S.A., No. 04-3040, 2005 WL 2037419, at *2-3 (E.D. 

La. Aug. 4, 2005) (dismissing a plaintiff’s “negligent repair and 

breach of contract claims” because of the LPLA’s exclusivity 

provision). 

Plaintiffs argue that these three remaining claims are 

alternate theories of liability if Defendants are ultimately not 

“manufacturers” for purposes of the LPLA. See Rec. Doc. 18 at 8-9 

(citing Fed. R. Civ. P. 8(d)). But the statements that “Defendants 

were negligent[,]” “PerFix Mesh is not reasonably fit for ordinary 

use[,]” and “PerFix Mesh is not of merchantable quality or safe 

and fit for intended uses” lack the basic factual allegations 

necessary to state viable claims. See Rec. Doc. 15 ¶¶ 60, 64, 68. 

Instead, they are the types of legal conclusions that are 

insufficient to survive a motion to dismiss. See Patrick v. WalMart, Inc., 681 F.3d 614, 622 (5th Cir. 2012). 

Moreover, even if the claims did not lack factual support, 

Plaintiff in no way explains how these theories of liability differ 

from the LPLA claims. Plaintiff has not pled facts to suggest that 

Defendants incurred liability by taking actions in any capacity 

other than as a manufacturer. Cf. C-Innovation, LLC v. Norddeutsche 

Seekabelewerke GMBH, No. 10-4441, 2013 WL 990026, at *4-7 (E.D. 

La. Mar. 13, 2013) (allowing breach of contract claim to proceed 

because plaintiff did not allege personal injury, meaning that the 

LPLA’s exclusivity provision did not apply); Mcauslin v. Grinnell 

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Corp., No. 97-775, 2000 WL 1655242, at *6 (E.D. La. Nov. 3, 2000) 

(explaining that the LPLA does not preclude claims for “contractual 

obligations”); Lavergne v. Am.’s Pizza Co., 2002-889, pp.3-4 (La. 

App. 3 Cir. 2/5/03); 838 So. 2d 845, 847-48 (allowing some nonLPLA claims to proceed when defendant “w[ore] two hats; one as the 

supposed manufacturer of the sauce, and another as an employer of 

a potentially negligent employer). 

Plaintiff’s claims for negligence, breach of warranty of 

fitness for ordinary use, and breach of implied warranty of 

merchantability and fitness all target Defendants’ actions as the 

companies that designed, manufactured, and distributed the 

allegedly harmful mesh. See Rec. Doc. 15 ¶¶ 57-68. All three claims 

seek relief because the mesh allegedly “damaged Plaintiff.” See 

id. ¶¶ 60, 64, 68. Plaintiff has not pled facts indicating that 

these claims are distinct from the LPLA claims and the claims are 

therefore precluded by the LPLA. 

Finally, Plaintiff states in his Amended Complaint that he 

seeks attorney’s fees. See Rec. Doc. 15 at 16. The remedies under 

the LPLA and redhibition diverge in that the LPLA does not allow 

recovery of attorney’s fees, but redhibition does. See La. Rev. 

Stat. § 9:2800.53(5) (LPLA); La. Civ. Code art. 2545 

(redhibition). However, for a claim in redhibition, attorney’s 

fees may be awarded only “for the pure economic loss and not for 

the damages recovered pursuant to the LPLA.” See De Atley v. 

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Victoria’s Secret Catalogue, LLC, 2004-0661, p.4 (La. App. 4 Cir. 

5/14/04); 876 So. 2d 112, 115. 

New Orleans, Louisiana, this 17th day of April, 2018. 

 

___________________________________ 

SENIOR UNITED STATES DISTRICT JUDGE 

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