               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 02-30137
                          Summary Calendar



PATRICIA GILL, ET AL.,
                                                        Plaintiffs,


NEGRA VICTORIAN LANDRY, BRETT HARDY,
                                             Plaintiffs-Appellants,

versus

ETHICON INC., ET AL.,
                                                       Defendants,

ETHICON INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON HOSPITAL
SERVICES CORPORATION, JOHNSON & JOHNSON HEALTHCARE SYSTEMS INC.,
OWENS & MINOR INC., OWENS & MINOR MEDICAL INC.,
                                            Defendants-Appellees.

         __________________________________________________
            Appeal from the United States District Court
                for the Western District of Louisiana
                           (No. 00-CV-2042)
          ________________________________________________
                             July 24, 2002

Before JOLLY, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiffs-appellants Nedra Victorian Landry1 and Brett Hardy

appeal from the district court’s judgment summarily dismissing

their complaint.   For the reasons that follow, we affirm.

     *
        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that this opinion should not be published and is not precedent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.
     1
        Although the caption of the case identifies Ms. Landry’s
first name as “Negra,” her correct first name is Nedra.
                      I.    FACTS AND PROCEEDINGS

      On July 28, 2000, the plaintiffs-appellants brought this suit

in state court against the manufacturers and distributors of Vicryl

sutures (collectively, “Ethicon”), asserting liability under the

Louisiana Products Liability Act (“LPLA”). Essentially, Landry and

Hardy allege that contaminated Vicryl sutures that were subject to

a September 1994 recall were used for wound closure in their

November 1994 surgeries at Lake Charles Memorial Hospital (the

“Hospital”) and caused post-operative infections.

      Ethicon   removed    the    case   to   federal    court   on   diversity

grounds.     By order entered April 20, 2001, the district court set

a trial date of March 25, 2002, and established a late December

2001 deadline for the completion of discovery and the filing of

dispositive motions.

      Arguing that the plaintiffs-appellants could not prove that

their injuries were caused by a defective condition as required by

the LPLA, Ethicon filed a motion for summary judgment on November

13, 2001. Thereafter, the clerk of court notified the parties that

the motion would be decided “on or before the next regular motion

day which is December 12, 2001.”               Landry and Hardy filed an

opposition to the motion on December 7, nine days after it was due.

In   their   opposition,   they    relied     on   the   affidavits   of   Roger

Burgess, their counsel of record who attached to his affidavit

deposition testimony and documents produced in a similar case then

pending in a Texas district court, and Frederick Hetzel, an expert

                                         2
witness whose involvement in the case had not been previously

disclosed to Ethicon.     Ethicon moved to strike both affidavits on

December 14.    Landry and Hardy did not file an opposition to the

motion to strike.

     The district court granted Ethicon’s motion to strike on

January 4, 2002.      Then, on January 7, the court granted summary

judgment to Ethicon, concluding that the “plaintiffs cannot prove

that their injuries were caused by an unreasonably dangerous

product.”      Landry and Hardy timely appealed, challenging the

district    court’s   evidentiary    ruling    as   well   as   its   summary

dismissal.

                              II.   DISCUSSION

                         A.    Motion to Strike

     Landry and Hardy argue that the district court erroneously

granted Ethicon’s motion to strike.           They assert that the court

should not have considered the motion because it was untimely, as

it was filed two days after the hearing date on the summary

judgment motion.      Furthermore, they contend that neither of the

stricken affidavits was deficient as a matter of law.

     We decline to consider these arguments because Landry and

Hardy failed to contest the motion to strike in the district

court.2    By failing to raise an objection in the district court,

     2
        We note that the plaintiff-appellants’ timeliness
argument is completely disingenuous. Landry and Hardy filed
their opposition to Ethicon’s summary judgment motion nine days
after the due date and just five days before the hearing date.

                                      3
they waived or forfeited any right to object to the timeliness or

the merits of Ethicon’s motion to strike.                 See Hollis v. American

Airlines, Inc., 138 F.3d 1028, 1030 (5th Cir. 1998).                  Therefore, we

turn to the merits of the district court’s summary judgment ruling.

                    B.     Motion for Summary Judgment

      Landry and Hardy argue that the district court improperly

granted summary judgment to Ethicon, contesting the ruling both on

the merits and on grounds of prematurity.                  We review a grant of

summary judgment      de    novo,   applying       the    same   standard     as   the

district court.     Morris v. Covan World Wide Moving, Inc., 144 F.3d

377, 380 (5th Cir. 1998).         Summary judgment is proper if there is

no genuine issue as to any material fact.                Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).                      A genuine

issue   of   fact   exists   only      “if   the   evidence      is   such    that   a

reasonable jury could return a verdict for the non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      Under the LPLA, a manufacturer is subject to liability only

where the damage suffered by the plaintiff was “proximately caused

by   a characteristic       of   the   product     that    renders     the   product

unreasonably dangerous.”         La. Rev. Stat. § 9:2800.54(A).              As such,

as part of their prima facie case, Landry and Hardy must prove that

their injuries were proximately caused by a product shown to be

unreasonably dangerous.          The district court found that Landry and


Pursuant to their argument, the district court should have
disregarded their opposition in addition to the motion to strike.

                                         4
Hardy failed to demonstrate a triable issue of fact on this

essential element of their LPLA claim and accordingly granted

summary judgment to Ethicon.        It reasoned that because Landry and

Hardy “cannot prove that the sutures they received were some of

those subject to the Ethicon recall, nor can they prove the sutures

were actually contaminated, . . . plaintiffs cannot prove that

their injuries were caused by an unreasonably dangerous product.”

After reviewing the evidence properly before the district court, we

agree.

       The undisputed evidence in the record indicates that the

Hospital returned all of the recalled sutures to Ethicon no later

than   October    18,   1994,   several   weeks   before    the   plaintiffs-

appellants’      surgeries.      Landry   and     Hardy    have   offered   no

contradictory evidence that would suggest that the sutures they

received may have been part of the recalled lot.              Nor have they

come forward with any evidence that would indicate that the sutures

they     received    were     otherwise    contaminated      or    defective.

Accordingly, we conclude that summary judgment was appropriate on

this record.



       We also reject the plaintiffs-appellants’ contention that

summary judgment was premature.           Ethicon’s motion for summary

judgment was filed just over a month before the December deadline

for discovery and the filing of dispositive motions, which had been

set in anticipation of the approaching March 2002 trial date.

                                      5
Ethicon states, and Landry and Hardy do not contest, that in the

approximately eighteen months that this case was pending in the

district court, Landry and Hardy never propounded interrogatories,

requests for production of documents, or requests for admission,

nor did they ever notice a deposition.         In these circumstances, we

cannot accept the plaintiff-appellants’ contention that they were

not afforded a sufficient opportunity to undertake discovery;

rather, we are convinced that the plaintiff-appellants’ failure to

adequately     respond   to   the    summary   judgment   motion   was   the

consequence of their dilatory conduct.

                              III.   CONCLUSION

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




                                       6
