UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-31415 Summary Calendar

JOSEPH I. VINCENT,

Plaintiff-Appellant,

VERSUS

SOFAMOR DANEK NEVADA, INC., successor-in-interest to Timesh, Inc.,

Defendant-Appellee.

Appeal from the United States District Court For the Eastern District of Louisiana (98-CV-621-B) October 24, 2000 Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM*

Plaintiff-Appellant Joseph I. Vincent (“Appellant”) appeals

the district court’s grant of summary judgment for Defendant-

Appellee Sofamor Danek Nevada, Inc. (“Appellee”), on Appellant’s

products liability claims brought under the Louisiana Products

Liability Act, 3B LA. REV. STAT. ANN. §§ 9:2800.51 - 2800.59 (West

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-31415 -2-

1997). Because we find that there are no genuine issues of

material fact relating to Appellant’s claims, we AFFIRM.

BACKGROUND

This action arises out of the implantation and the subsequent

denting of Timesh®, a titanium mesh cranial plating system. Dr.

Frank Culicchia implanted Timesh into Appellant’s skull via a

cranioplasty, a skull surgery procedure by which skull defects

caused by trauma, tumor, or infection are repaired, to cover a

portion of Appellant’s skull that was surgically removed because of

a tumor. Five months after the cranioplasty, Appellant allegedly

struck the right side of his head on the corner of a fuse box,

causing a dent in the surgically-implanted Timesh®. Appellant did

not suffer any injury to his skull or brain as a result of the

dent. Because he was fearful that a larger blow to the same spot

would cause significant damage, he opted to have the Timesh®

removed.

Appellant’s claims against Appellee alleged that the Timesh®

violated the LPLA §§ 9:2800.56 and 2800.57 as unreasonably

dangerous in design and because of inadequate warning. After oral

argument, the district court granted summary judgment for Appellee

on these claims because there was no evidence of an alternative

design and because there was adequate warning concerning the

flexibility and malleability of the Timesh.

DISCUSSION No. 99-31415 -3-

Summary 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

the district court.” Theriot v. Danek Med., Inc.,

,

255 (5th Cir. 1999).

Under the LPLA, there are four theories under which a

plaintiff may demonstrate that a product is defective. Before the

district court, Appellant alleged only two of them: (1) that the

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

unreasonably dangerous due to inadequate warning. However,

Appellant has abandoned the first claim on appeal, thus our review

is limited to Appellant’s inadequate warning claim. Cinel v.

Connick,

(5th Cir.) ("An appellant abandons all

issues not raised and argued in its initial brief on appeal."

(emphasis omitted)), cert. denied,

(1994).

Under the LPLA,

[a] product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

3B LA. REV. STAT. ANN. 9:2800.57A. However, the LPLA also provides No. 99-31415 -4-

that a manufacturer is not required to provide an adequate warning

about its product when “[t]he user or handler of the product

already knows or reasonably should be expected to know of the

characteristic of the product that may cause damage and the danger

of such characteristic.” Id. 9:2800.57B(2). Further, under

Louisiana’s “learned intermediary doctrine” concerning medical

devices, a plaintiff alleging an inadequate warning claim must show

that the defendant failed to warn the physician--the learned

intermediary--of the risk associated with the use of the particular

medical device not otherwise known to the physician and that such

failure to warn was both a cause-in-fact and a proximate cause of

the plaintiff’s injury. Willett v. Baxter Int’l, Inc.,

(5th Cir. 1991).

Under this doctrine, summary judgment was proper because

adequate warning was not necessary under § 2800.57B(2). Dr.

Culicchia testified that the Timesh® was flexible, malleable, and

susceptible to denting when subject to sufficient force.

Appellee’s product literature plainly states that the Timesh®,

which is a thin metal mesh plate made of “malleable” titanium, “can

easily be bent into any conceivable shape without cracking.” 2 R.

at 327. Dr. Culicchia testified that he knew these characteristics

of Timesh and that it could easily be bent or shaped. Appellant’s

argument that it was not obvious that an “insignificant” blow to

the Timesh® would cause a dent is without any merit. Simply No. 99-31415 -5-

stated, it is patently obvious, even to a reasonable person, that

a thin, metal mesh plate could dent with “insignificant” force,

including force from striking the corner of a metal fuse box. Dr.

Culicchia knew or should have known that such force could cause a

dent in the Timesh plate, and therefore Appellee did not have to

provide any warning to Dr. Culicchia about such possibility. See

§ 2800.57B(2). For these reasons, the judgment of the district

court is

AFFIRMED.