     Case: 17-30601      Document: 00514380306         Page: 1    Date Filed: 03/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals

                                      No. 17-30601
                                                                             Fifth Circuit

                                                                           FILED
                                                                       March 9, 2018

RANDY A. ROBERTS, SR.; NATASHA ROBERTS,                               Lyle W. Cayce
                                                                           Clerk
              Plaintiffs - Appellants

v.

JOHNSON & JOHNSON, INCORPORATED; ETHICON, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-3991


Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Randy A. Roberts, Sr., along with his wife Natasha, sued Johnson &
Johnson, Inc. and its subsidiary Ethicon, Inc. (collectively, J&J) for injuries
allegedly caused by a defective medical device. The district court granted
summary judgment in favor of J&J. We vacate the order and remand.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 17-30601

                                            I.
       In his complaint, Roberts alleged that on January 11, 2006, a surgeon
implanted a Prolene Hernia System (PHS), a medical device manufactured by
J&J, in Roberts’ body to repair a hernia. Roberts further alleged that the PHS
later became infected, causing him debilitating pain, and that he was required
to undergo three surgeries in 2015 to explant (remove) the PHS. Roberts
brought product liability claims under Louisiana law.
       J&J moved for summary judgment. In support, it relied on a single page
of medical records: an Intraoperative Log from Roberts’ January 11
implantation surgery. Under the heading “Implants,” the log has what appears
to be a pre-printed sticker identifying a “Bard Mesh Monofilament Knitted
Polypropylene.” J&J asked the court to draw a reasonable inference: Roberts
was mistaken, he never had J&J’s product implanted at all, and he should
direct his complaints to Bard.
      Roberts pushed back with medical records of his own. He attached
operative notes from his three 2015 explantation surgeries to his opposition.
The operative report from Roberts’ May 9, 2015, surgery states “the patient
likely had a PHS system used to repair this hernia.” After Roberts’ September
9, 2015, procedure, his surgeon expressed more confidence: “The underlay
mesh of the patient’s prior[-]placed PHS system was identified and the type of
hernia system was confirmed.” 1 In total, the records from Roberts’ 2015
surgeries referenced a PHS seven times.
      The district court granted J&J’s motion. Focusing on the May 9 report’s
use of the word “likely,” the district court concluded that the explantation notes



      1      In its Motion for Summary Judgment, J&J describes the “underlay patch” as
one of the PHS’ three components. The record is unclear as to whether the Bard product also
has an underlay, but J&J suggests in its briefing that it does not.

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                                     No. 17-30601

did not “definitively conflict with the original operation notes” and merely
reflected the surgeon’s “educated guess as to what he is removing from the
Plaintiff’s body.” Based on this reasoning, the district court concluded that
Roberts had not created a genuine dispute as to whether J&J’s product had
been implanted in his body. Roberts appeals this order. 2
                                            II.
       We review a district court’s grant of summary judgment de novo.
Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 388 (5th Cir. 2017).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact
exists if a reasonable jury could enter a verdict for the non-moving party.”
Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). In deciding if the non-
movant has raised a genuine issue, we view all facts and evidence in the light
most favorable to him and draw all reasonable inferences in his favor. Hanks
v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017).
       Roberts’ evidence—that his explanting surgeon removed a “confirmed”
PHS—is evidence that a PHS was implanted in his body. Viewed in the light
most favorable to him, the 2015 records permit the reasonable inference that
a PHS was implanted during his 2006 hernia-repair surgery. J&J’s evidence—
the 2006 records—point in the other direction. J&J asks us to credit the 2006
records over the 2015 records. But at this stage we cannot draw inferences in
J&J’s favor. Rather, “the evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,



      2        Roberts also appeals denial of his later motion under Rules 59(e) and 60(b).
Because we vacate the district court’s grant of summary judgment, we need not address its
ruling on this motion.

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Inc., 477 U.S. 242, 255 (1986). Roberts has therefore identified a genuine
dispute of material fact.
      To resist this conclusion, J&J points to Scott v. Harris, 550 U.S. 372
(2007). In that case, Harris brought excessive force claims against a county
deputy arising from a car chase. Id. at 374. Harris’ version of events—that,
though fleeing police, he was driving in a cautious and controlled manner—
was “blatantly contradicted” by video evidence of “a Hollywood-style car chase
of the most frightening sort.” Id. at 380. Harris never contended that what the
video depicted “differ[ed] from what actually happened.” Id. at 378.         The
Supreme Court concluded that, in light of the video evidence, no reasonable
jury could believe Harris’ story and that the Court therefore need not adopt
Harris’ unsupported version of the facts. Id. at 380–81.
      This case is not Scott. As the Seventh Circuit has recognized, “[c]omputer
records are not perfect; they reflect only the input of fallible human beings.”
Covalt v. Carey Canada, Inc., 950 F.2d 481, 484 (7th Cir. 1991). The same is
true of medical records. See, e.g., Grogan v. Kumar, 873 F.3d 273, 279 (5th Cir.
2017) (“[B]ecause a reasonable jury could credit either the medical records or
Grogan’s conflicting account, we hold that this factual dispute is genuine.”).
Scott instructs that where the non-movant’s “version of events is so utterly
discredited by the record that no reasonable jury could have believed him,” he
has not created a genuine issue of fact. 550 U.S. at 380. The sticker in Roberts’
2006 medical file does not approach this demanding standard.
                                       III.
      The district court’s grant of summary judgment is VACATED. The case
is remanded for further proceedings.




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