     Case: 15-30743      Document: 00513585739         Page: 1    Date Filed: 07/11/2016




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

                                                                                    FILED
                                                                                  July 11, 2016
                                      No. 15-30743
                                                                                 Lyle W. Cayce
                                                                                      Clerk
CAROL PETERSON, Individually; RICHARD PETERSON, Individually,

               Plaintiffs - Appellants

v.

C. R. BARD, INCORPORATED, a New Jersey Corporation; BARD
PERIPHERAL VASCULAR, INCORPORATED, a subsidiary and/or division
of defendant C.R. Bard, Incorporated, an Arizona Corporation,

               Defendants - Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-528


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
       The issue in this appeal is when prescription commenced. Carol
Peterson (“Peterson”) had an inferior vena cava filter (“IVC filter” or “filter”)
manufactured by the defendants (collectively “Bard”) surgically implanted in
her bloodstream in 2008. The filter prevents blood clots in the legs from being
transferred through the bloodstream to the brain/heart. On July 26, 2012 she



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30743
was admitted to the hospital after experiencing consistent sharp pain in her
right back and flank for several days, along with intermittent pain that began
in 2008. Testing revealed struts in the filter were poking through the wall of
her blood vessel. This was reflected in her hospital discharge paperwork,
which also indicates that she agreed to a conservative treatment option for the
problem. She was discharged on July 31, 2012. She claims, however, that she
was not aware of the problem with the filter until a follow-up appointment with
her doctor on August 14, 2012. She brought suit on August 13, 2013, alleging
numerous claims under the Louisiana Products Liability Act (“LPLA”). Her
husband brought a loss of consortium claim. All claims are governed by a one
year period of prescription. See LA. CIV. CODE art. 3492.
        The district court granted summary judgment in favor of Bard because
Peterson knew or should have known about the problem with the filter by
July 31, 2012 at the latest. Four of her doctors testified that they either
remember discussing the filter problem with her while she was hospitalized or
that it would be within their standard operating procedure to do so. Her
treatment and discharge paperwork indicated the filter problem and that she
had agreed to a course of treatment for it. Testimony from her husband
indicated that he remembered talking with one of the doctors about the filter
problem while she was hospitalized. The only contrary evidence is Peterson’s
own testimony that she does not remember being told about the problem until
her follow up visit on August 14, 2012. She argued in the district court (and
on appeal) that her testimony creates a genuine issue of material fact for the
jury.
        “This court reviews a district court's grant of summary judgment de
novo, applying the same standards as the district court.” Wright v. Excel
Paralubes, 807 F.3d 730, 732 (5th Cir. 2015).         Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
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                                      No. 15-30743
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). “This court considers evidence in the record in the light most
favorable to the non-moving party and draws all reasonable inferences in favor
of that party.” Uptown Grill, LLC v. Shwartz, 817 F.3d 251, 256 (5th Cir.
2016).     However, “[w]hen the moving party has carried its burden . . . its
opponent must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 106 S. Ct. 1348, 1356 (1986). “If the evidence
is merely colorable . . . summary judgment may be granted.”                  Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511 (1986) (internal
citations omitted). Indeed, “[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’” Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting First
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S. Ct. 1575, 1592
(1968)).
       Peterson’s principal argument is that she did not learn of the problem
with her IVC filter until she visited her doctor on August 14, 2012 (i.e., not
during her hospitalization). The district court rejected this contention, and we
agree. On the basis of this record including the discharge prescription for
“conservative treatment”—an alternative to surgical removal of the IVC
filter—it strains the limits of reason to accept Peterson’s claim that she was
not told about the failure of her IVC filter during the hospitalization. Her
testimony may be “colorable,” but that is not enough to defeat summary
judgment. Anderson, 477 U.S. at 249–50. 1 Peterson, as the non-movant, has



       1 Louisiana law is not to the contrary. See Am. Zurich Ins. Co. v. Caterpillar, Inc.,
2012-270 p. 2-4 (La. App. 3 Cir. 10/3/2012); 99 So.3d 739, 741-42 (no need to speculate on
when party obtained constructive knowledge of facts sufficient to commence running of
prescriptive period when evidence in record established when party had actual knowledge).
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                                       No. 15-30743
not carried her burden to offer evidence that creates a genuine issue of material
fact. 2 She has no evidence to dispute the doctors’ testimony that they told her
about the IVC filter problem; her lack of memory by itself is insufficient. See
Hemphill v. State Farm Mut. Auto Ins. Co., 805 F.3d 535, 541 (5th Cir. 2015)
(“Lack of memory by itself is insufficient to create a genuine issue of material
fact.”). The testimony of Peterson’s husband is irrelevant to our conclusion
       Peterson contends that the doctrine of contra non valentum, which tolls
the running of the prescriptive period until the plaintiff knew or reasonably
should have known her injuries were caused by a defendant’s wrongful act,
applies here. See Harvey v. Dixie Graphics, Inc., 593 So. 2d 351, 354 (La. 1992).
To the extent she contends that she did not know and could not have
reasonably known about her injuries until August 14, 2012 (or later), we have
rejected that argument. She also urges the “specific defendant” doctrine, a
subspecies of the “discovery rule,” should toll prescription until she discovered
which company actually manufactured her IVC. This argument is misguided.
The district court correctly held that the discovery rule only applies when there
are multiple possible defendants or causes of an injury. See Chevron USA, Inc.
v. Aker Maritime, Inc., 604 F.3d 888, 894 (5th Cir. 2010) (Specific defendant
rule applied because “no one knew the cause [of broken bolts]. It could have
been       continued   overtorquing,      faulty    manufacture,        or   improper      bolt
substitution. Each problem pointed to a different defendant.”); see also Jordan
v. Emp. Transfer Corp., 509 So.2d 420, 423-24 (La. 1987). Here, the injuries
are only alleged to have a single cause: the IVC filter.                  Although several




       2 C.f. In re Brewer, 2005-0666 p. 4 (La. App. 1 Cir. 5/5/06); 934 So.2d 823, 826
(“Ordinarily, the burden of proof is on the party pleading prescription, however, if on the face
of the petition it appears prescription has run, the burden shifts to the plaintiff to prove a
suspension or interruption of the prescriptive period.”).

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                               No. 15-30743
companies manufacture such filters, Peterson could have easily discovered
that hers was manufactured by Bard. See id. at 423.     AFFIRMED.




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