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

                                                 FILED
                                                                             April 1, 2009

                                     No. 08-30893                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HERMAN REED

                                                   Plaintiff - Appellant
v.

BIOMET ORTHOPEDICS INC

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:06-CV-544


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Herman Reed (“Reed”) appeals the district court’s
grant of summary judgment in favor of Defendant-Appellee Biomet Orthopedics
Inc. (“Biomet”). For the following reasons, we affirm.
                           FACTS AND PROCEEDINGS
       In June 2004, Reed fractured his hip in an automobile accident. The
orthopedic surgeon at the hospital where he was treated implanted a Vari-Angle


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30893

Hip Screw (“VHS”) device allegedly manufactured by Biomet to repair his hip.
Approximately eight months after the surgery, an x-ray showed that the VHS
device had fractured; as a result, Reed underwent a second hip operation.
       Reed filed suit against Biomet under the Louisiana Products Liability Act
(“LPLA”), claiming that the VHS device implanted in his hip was “unreasonably
dangerous in construction or composition” and/or “did not conform to an express
warranty” made by Biomet. Biomet filed a motion for summary judgment. The
district court granted the motion, holding that Reed had provided no evidence
of a defect in the VHS device’s “construction or composition” or of any “express
warranty” made by Biomet. Reed appeals.1
                             STANDARD OF REVIEW
       “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Broussard v. Procter & Gamble Co., 517 F.3d
767, 769 (5th Cir. 2008). Summary judgment is appropriate “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). “We review all evidence in
the light most favorable to the nonmoving party.” Broussard, 517 F.3d at 769.
                                     DISCUSSION
       To maintain a claim that a product is “unreasonably dangerous” in its
“construction or composition” under the LPLA, a plaintiff must show that, “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



       1
         Reed does not challenge the district court’s grant of summary judgment on his claim
that the device failed to conform to Biomet’s express warranty; he has thus waived that issue
on appeal. See Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 462 n.4
(5th Cir. 2003). Therefore, we review only the district court’s grant of summary judgment on
Reed’s “construction or composition” claim.


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for the product or from otherwise identical products manufactured by the same
manufacturer.” L A. R EV. S TAT. A NN. § 9:2800.55; see also Stahl v. Novartis
Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002).           The “construction or
composition” provision of the LPLA thus “provides a remedy for damages caused
by a product that is defective due to a mistake in the manufacturing process.”
Id. at 263.
      In support of its motion for summary judgment, Biomet submitted
affidavits and reports of two expert witnesses who examined the VHS device
explanted from Reed and concluded that there was no manufacturing defect.
Biomet also submitted portions of the deposition of Reed’s orthopedic surgeon.
She testified that the VHS device most likely broke due to Reed’s failure to
comply with her instructions to limit the weight placed on his hip and on the
implant. Therefore, Biomet met its initial evidentiary burden on summary
judgment; the burden then “shift[ed]” to Reed “to produce evidence or designate
specific facts showing the existence of a genuine issue for trial.” Fordoche, Inc.
v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (quotation omitted).
      Reed’s opposition to summary judgment only challenged Biomet’s
contention that he did not follow his doctor’s instructions. On appeal, Reed still
maintains that summary judgment was improperly granted because there are
“disputed issues of fact” as to whether or not Reed’s physician instructed him on
the proper use of the VHS device and whether or not Reed followed those
instructions. However, in the absence of any evidence of a defect in the VHS
device itself, these are not issues of “material fact” because they would not
“affect the outcome of the suit.” Id. Regardless of the instructions given to Reed
and his compliance with those instructions, Reed has not presented any evidence
of a “construction or composition” defect in the VHS device, that would suggest
a material deviation from Biomet’s production standards or identical products.
See Stahl, 283 F.3d at 263.

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      Accordingly, Reed has failed to set forth specific facts showing the
existence of a genuine issue of material fact, and the district court properly
granted summary judgment. Id.
                              CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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