     Case: 16-60043      Document: 00513639850         Page: 1    Date Filed: 08/16/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-60043                                FILED
                                                                            August 16, 2016
                                                                             Lyle W. Cayce
ROCKY ESTES,
                                                                                  Clerk

                                                 Plaintiff-Appellant

v.

LANX, INCORPORATED; JOHN DOES 1-10,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:14-CV-52


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Rocky Estes had a Lanx-created device, the Telluride system, implanted
to fuse his spinal vertebrae. After several months, the screws in the system
fractured and broke. As a result, the device had to be removed and replaced.
About a year later, Estes sued Lanx in federal court asserting claims under
Mississippi tort law. The district court granted summary judgment to Lanx on
all claims. Estes appeals that ruling with respect to two of the claims—



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 16-60043      Document: 00513639850        Page: 2     Date Filed: 08/16/2016


                                     No. 16-60043

manufacturing defect and fraudulent concealment. He also appeals the denial
of a motion to compel.
       Estes claims his injury happened because of a manufacturing defect in
the screws. But neither the hospital nor Lanx retained the broken screws
when they were removed in the surgery that replaced the first implant. This
prevents Estes from making the required showing that the malfunctioning
item deviated from the manufacturing specifications.               See Cooper Tire &
Rubber Co. v. Tuckier, 826 So. 2d 679, 693 (Miss. 2002). Recognizing that the
missing screws prevent the comparison that is usually necessary in these
cases, Estes argues that the district court should have drawn an adverse
inference against Lanx on this issue because one of its product distributors was
present in the operating room from which the screw went missing.
       We conclude that the trial court did not abuse its discretion in refusing
to draw an adverse inference based on spoliation of evidence. Guzman v. Jones,
804 F.3d 707, 713 (5th Cir. 2015). When evidence is spoliated, we will draw an
“adverse inference against the destroyer of evidence only upon a showing of
‘bad faith’ or ‘bad conduct.’” Condrey v. SunTrust Bank of Ga., 431 F.3d 191,
203 (5th Cir. 2005) (quoting King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir.
2003)).   Having reviewed the briefs and record, and considered the oral
argument of the parties, we find no basis for disturbing the district court’s
finding of no bad faith. 1
      Estes next appeals the district court’s ruling that his claim for fraudulent
concealment was preempted by federal regulatory law under Buckman Co. v.
Plaintiffs’ Legal Committee, 531 U.S. 341 (2001). In Buckman, a spinal fixation
system manufacturer allegedly made fraudulent representations to the Food



      1 The district court also correctly noted that Estes failed to introduce any evidence
showing the actual manufacturing specifications.


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                                 No. 16-60043

and Drug Administration (FDA) in trying to get approval of screws for use in
its systems. Id. at 343. After two unsuccessful attempts to obtain approval
were denied because the FDA found the application for the system was not
“substantially equivalent” to preexisting systems, the manufacturer split the
device into component parts and filed separate applications for each part,
which succeeded.      Id. at 346.     The plaintiffs claimed that “but for”
misrepresentations made to the FDA during this process, they would not have
sustained injuries from the implantation of these devices because the FDA
would not have approved them. Id. at 343. The Court held that the plaintiffs’
state law claims were preempted because they were essentially seeking to
punish the manufacturer for defrauding the federal agency, a task that is
properly left to the agency itself and federal law. Id. at 347–48.
      In applying Buckman to Estes’s case, the district court observed that his
claim for fraudulent concealment was premised on the allegation that by
submitting component-based applications (rather than a single application) for
510(k) approval for the Telluride system, Lanx violated the Federal Food,
Drug, and Cosmetic Act (“FDCA”). Estes tries to distinguish Buckman on a
couple of grounds. He first argues that he is asserting a state tort claim, not a
federal claim under the FDCA. But that was true in Buckman, which rejected
the plaintiffs’ attempts to characterize their claims as ordinary common-law
causes of action, reasoning that the plaintiffs’ “fraud claims exist solely by
virtue of the FDCA disclosure requirements.” Id. at 353. Estes next argues
that his claim does not allege misrepresentations to the FDA, but
misrepresentations and omissions to doctors and patients that led them to
believe the entire system was approved when only its components were. This
distinction does not change that his claim is based on the allegation that the
system lacked, to use his words, “the requisite FDA approval.” As such, the



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                                 No. 16-60043

claim “exist[s] solely by virtue of the FDCA disclosure requirements.” Lofton
v. McNeil Consumer & Specialty Pharm., 672 F.3d 372, 379 (5th Cir. 2012). A
verdict in Estes’s favor on this claim would undermine the FDA’s “control over
its ability, based on scientific expertise, to prescribe—and intelligently limit—
the scope of disclosures necessary for its work.” Id. at 380. For these reasons,
we agree with the district court that the fraudulent concealment claim is
impliedly preempted under Buckman.
      Lastly, Estes challenges the denial of his motion to compel production of
all FDA pre-approval submissions for not only the Telluride pedicle-screw
based system that was implanted in him, but also another Lanx system known
as the Aspen system. He also sought all consumer complaints for any Lanx
device from 2007–2013. To the extent this discovery would even matter with
the dismissal of the fraudulent concealment claim that we have just affirmed,
we conclude that the trial court did not abuse its discretion in denying the
discovery request. Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 631
(5th Cir. 2014).
      The judgment is AFFIRMED.




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