United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30405

____________

Andrew Bruno, 

Plaintiff—Appellant,

versus

Biomet, Incorporated; Unidentified Parties; Zimmer, 

Incorporated, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:20-CV-2706

______________________________

Before Higginbotham, Smith, and Engelhardt, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

In this diversity case, Andrew Bruno sued Biomet Inc. and Zimmer, 

Inc. (collectively, “Biomet”) under the Louisiana Products Liability Act 

(“LPLA”). The district court found Bruno’s claims were prescribed and 

granted summary judgment in favor of Biomet. Finding that the ultimate 

question of prescription is best left for the jury to determine, we VACATE

the district court’s summary judgment order and REMAND for further 

proceedings consistent with this opinion, including any additional discovery

the district court may order.

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2023

Lyle W. Cayce

Clerk

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I.

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.”

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Bruno brought this products liability suit against Biomet on 

September 25, 2020, seeking damages under the LPLA.1 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.2 Finding Bruno’s claims were prescribed, the 

district court granted summary judgment.3 Bruno timely appealed.

II.

We review grants of summary judgment de novo.

4 “Summary 

judgment is appropriate where ‘there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.’”5 We view 

the evidence in the light most favorable to the non-movant and make all 

reasonable inferences in their favor.6

_____________________

1 Bruno filed in Louisiana state court. Biomet removed the case to the Eastern 

District of Louisiana under diversity jurisdiction.

2 Biomet also argued that many of Bruno’s claims were barred by the LPLA, as the 

LPLA “provides the exclusive theories of liability for manufacturers for damage caused by 

their products,” Marable v. Empire Truck Sales of La., LLC, 2016-0876, p. 14 (La. App. 4 

Cir. 6/23/17), 221 So. 3d 880, 893, writ denied, 2017-1469 (La. 11/13/17), 230 So. 3d 210.

The district court found that Bruno’s negligence and tort-related claims were barred by the 

LPLA. Bruno does not appeal this finding.

3 The district court did not address whether Bruno provided sufficient evidence to 

support his claims.

4 In re Taxotere (Docetaxel) Prod. Liab. Litig., 995 F.3d 384, 388 (5th Cir. 2021)

(citation omitted).

5 Id. (quoting FED. R. CIV. P. 56(a)).

6 Id. (citation omitted).

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III.

A.

“Louisiana law provides a one-year liberative prescription period for 

products-liability cases.”7 Typically, “prescription commences to run from 

the day injury or damage is sustained.”8 But “[u]nder 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.’”9 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.”10

Under the discovery rule, “[c]onstructive knowledge . . . requires 

more than a mere apprehension something might be wrong.”11 However, 

“when a plaintiff suspects something is wrong, he must ‘seek out those 

whom he believes may be responsible for the specific injury.’”12 “The duty 

to act requires an investigation of the injury.”13 The discovery rule “applies 

_____________________

7 Id. (citing LA. CIV. CODE art. 3492 and Stewart Interior Contractors, L.L.C. v. 

MetalPro Indus., L.L.C., 130 So. 3d 485, 489 (La. Ct. App. 2014)).

8 Id. (quoting LA. CIV.CODE art. 3492).

9 Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888, 893 (5th Cir. 2010) (quoting 

Griffin v. Kinberger, 507 So. 2d 821, 823 (La. 1987)).

10 Taxotere, 995 F.3d at 390–91 (quoting Morgan v. Entergy New Orleans, Inc., 2016-

1250, p. 5, 13 (La. App. 4 Cir. 12/6/17); 234 So. 3d 113, 116, 120). 

11 Aker Mar., 604 F.3d at 894 (quoting Strata v. Patin, 545 So. 2d 1180, 1189 (La. 

App. 4 Cir. 1989)).

12 Id. (quoting Jordan v. Emp. Transfer Corp., 509 So. 2d 420, 423 (La. 1987)).

13 Taxotere, 995 F.3d at 392 (citing Jordan, 509 So. 2d at 423–24 and Rozas v. Dep’t 

of Health & Hum. Res., State of La., 522 So. 2d 1195, 1197 (La. Ct. App. 1988)).

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only when such ignorance is not willful and does not result from 

negligence.”14 In other words, “[w]hen 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.’”15

In this inquiry, “reasonableness is assessed ‘in light of [the plaintiffs’] 

education [and] intelligence.’”16 “Summary judgment is inappropriate 

where reasonable minds could differ as to the applicability 

of contra non valentem.”17

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.

18 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.

_____________________

14 Id. at 391 (quoting Cartwright v. Chrysler Corp., 232 So. 2d 285, 287 (La. 1970)).

15 Aker Mar., 604 F.3d at 894 (quoting Jordan, 509 So. 2d at 424) (second and third 

alteration in original).

16 Taxotere, 995 F.3d at 393 (quoting Campo v. Correa, 2001-2707, p. 12 (La. 

06/21/02); 828 So. 2d 502, 511) (alterations in original).

17 Id. at 389 (citing M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov’t, 2015-860, 

p. 19 (La. App. 4 Cir. 12/2/15); 182 So. 3d 312, 324).

18 See Id. at 388.

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B.

Three opinions guide our hand, In re Taxotere, Hoerner v. Wesley–

Jensen, Inc.,19 and Jenkins v. Bristol-Myers Squibb Co.

20 We address each in 

turn.

In Taxotere, a group of women permanently lost their hair after 

undergoing chemotherapy treatment for breast cancer.21 Under Louisiana 

law, “contra non valentem tolled the prescription period until the point when 

[the women] through the exercise of reasonable diligence should have 

‘considered [the chemotherapy drug] as a potential root cause of’” one’s hair 

loss.22 “A reasonable inquiry into the cause of one’s persistent hair loss 

would likely include consult[ing] with doctors,” or “search[ing] for the cause 

herself.”23 One plaintiff “asked her dermatologist to give her something to 

make her hair regrow, but she did not inquire into the cause of the hair loss 

or its persistence.”24 By failing to consult with doctors or explore options 

about the cause of their persistent hair loss, the women “did not act 

reasonably in light of their injuries.”25 We noted that with a quick internet 

_____________________

19 95–0553, p. 2 (La. App. 4 Cir. 11/20/96); 684 So. 2d 508, writ denied, 96–30347 

(La. 2/7/97); 688 So. 2d 501.

20 689 F. App’x 793, 795–97 (5th Cir. 2017) (unpublished) (per curiam).

21 Id. at 387.

22 Id. at 392–93 (quoting Oil Ins. Ltd. v. Dow Chem. Co., 2007-0418, p. 9 (La. App. 

1 Cir. 11/2/07); 977 So. 2d 18, 23, writ denied, 2007-2319 (La. 2/22/08); 976 So. 2d 1284).

23 Id. at 393. While the Supreme Court of Louisiana guides that reasonableness is 

assessed “in light of [the plaintiffs’] education [and] intelligence,” id. at 393 (quoting 

Campo, 88 So. 2d at 511), we concluded that “[t]o the extent what was discovered was 

difficult to understand, the patient’s consulting her oncologist, dermatologist, or other 

treating physician as to the meaning of the information would be part of diligence.” Id.

24 Id.

25 Id. at 395.

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search the women could have discovered the drug was a possible explanation 

for their hair loss.26 Because the women were “charged with knowledge of all 

that a reasonable inquiry would have revealed,” we held that they failed to 

“raise[] a genuine dispute of material fact that a reasonable inquiry would 

have left them without knowledge” and affirmed summary judgment.27

In Hoerner, a plaintiff developed an eye infection from her contact 

lenses, ultimately resulting in the need for a corneal transplant.28 The 

plaintiff argued the prescriptive period began to run when she read an article 

on the increased likelihood of infection in users of extended-wear contact 

lenses, not from the date of her corneal transplant, because she was unaware 

at the time of her surgery that her contact lenses were the cause of her 

infection.29 Instead, the plaintiff “believed that she was the unfortunate 

recipient of an ubiquitous germ like one who contracts measles or a cold.”30

A Louisiana appellate court agreed, finding that the plaintiff was not put on 

notice of any fault of the contact lens manufacturer until she read the article.

31

In contrast, in Jenkins, we affirmed a summary judgment finding that 

a plaintiff had constructive notice that his medication was causing his 

twitching when his doctor told him to stop taking a medication because he 

suspected it may be causing the plaintiff’s twitch.32 Jenkins “knew that his 

_____________________

26 Id. at 394.

27 Id. at 394–95 (citing Cartwright, 232 So. 2d at 287).

28 684 So. 2d at 509.

29 Id. at 510.

30 Id.

31 Id. at 514.

32 Jenkins, 689 F. App’x at 795–97. “Jenkins knew that his twitching may have been 

related to Abilify [more than one year prior to the filing of the suit] in April 2013.” Id. at 

796. We found that testimony persuasive in that case.

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[medical issues] may have been related” to a prescription medicine when, 

after experiencing tremors, his doctor expressed concerns about the 

medication.33 We found, based on the undisputed facts before the Court, that 

Jenkins, for more than a year, was aware of cognizable injuries potentially 

connected to the medicine he was taking.

34

C.

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.35

Unlike the women in Taxotere, Bruno did consult his doctor, who 

thought his infection could have come from a suture reaction.36 And unlike 

the defendants in Taxotere, Biomet presented no evidence that Bruno could 

have discovered its device caused the infection. Although Biomet did disclose 

when it discovered the problem with its devices cleaning protocols, it did not 

notify hospitals until September 2019.

And like the eye patient in Hoerner, Bruno alleges he was not aware 

the device could cause the infection—indeed, he was told expressly it could 

not. Just as the court in Hoerner held that the patient was not put on notice of 

any fault of the contact lens manufacturer until she read an article linking the 

_____________________

33 Id. at 796–97.

34 Id. at 797.

35 Biomet argues that like the women in Taxotere, Bruno had constructive notice of 

possible causes of the infection and “failed to act reasonably in light of his injuries.”

36 See Taxotere, 995 F.3d at 393–95.

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two, Bruno argues he was not put on notice of any fault of Biomet’s until he 

received notice of its letter. 

Biomet argues that like the plaintiff in Jenkins, Dr. Doulens’ actions 

placed Bruno on constructive notice that Biomet could be at fault for his 

injuries. In Jenkins, we affirmed summary judgment against a plaintiff when 

his doctor told him to stop taking a medication because he suspected it may 

have caused the plaintiff’s twitch.37 Unlike the doctor in Jenkins however, 

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.38 As the 

_____________________

37 Jenkins, 689 F. App’x at 795.

38 See Campo, 828 So. 2d at 510–11 (“Constructive knowledge is whatever notice is 

enough to excite attention and put the injured party on guard and call for inquiry.”). We 

reject the implicit assertion that, as a matter of law, an individual is not allowed to rely on 

the advice and counsel of a treating physician on complex matters of medicine. But to that 

end, the parties fail to cite evidence that would tend to support whether Bruno’s postremoval symptoms or complications were like those he had pre-removal, if his treatments 

pre- and post-removal were the same, or if the frequency of his doctor’s visits changed preand post-removal.

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record stands, when the prescriptive period expired, and whether contra non 

valentum applies, is a question best left for the jury.

IV.

Alternatively, Biomet argues it is entitled to summary judgment 

because Bruno failed to produce sufficient evidence for his LPLA claims.39

The district court did not address this ground for summary judgment. To be 

sure, “we may affirm summary judgment on any basis supported by the 

record even if not reached by the district court.”40 That said, as a “general 

rule,” we do “not consider an issue not passed upon below.”41 We follow 

suit here; as the district court did not address whether Bruno produced 

sufficient evidence to survive summary judgment on one or more of his LPLA 

claims, we decline to address it in the first instance and leave the merits of 

Bruno’s claims to the district court. 

* * * *

For the foregoing reasons, we VACATE the district court’s 

summary judgment order and REMAND to the district court for further 

_____________________

39 Under the LPLA, a manufacturer is “liable to a claimant for the damage 

proximately caused by a characteristic of the product that renders the product unreasonably 

dangerous when such damage arose from a reasonably anticipated use of the product by the 

claimant or another person.” Marable, 221 So. 3d at 893 (citing La. R.S. 9:2800.54(A)). “A 

product may be deemed ‘unreasonably dangerous’ in one of four ways: construction or 

composition, design, inadequate warning[,] or nonconformity with an express warranty.” 

Id. (citing LA. RS 9:2800.54(B) and Young v. Logue, 94-0585, p. 30 (La. App. 4 Cir. 

5/16/95), 660 So. 2d 32, 53). Bruno alleges Biomet’s device is unreasonably dangerous for 

all four reasons, and Biomet argues Bruno failed to produce sufficient evidence that its 

device meets any of those conditions.

40 Taxotere, 995 F.3d at 388.

41 Pena v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (quoting 

Humphries v. Elliott Co., 760 F.3d 414, 418 (5th Cir. 2014)).

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proceedings consistent with this opinion, including any additional discovery

the district court may order. 

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