In December 2016, plaintiff had shoulder surgery to implant a prosthetic device with parts manufactured by Biomet. With on-going post-operative infections, the prosthesis was removed in November of 2018.  On September 25, 2019, Biomet sent a letter to hospitals advising that certain medical devices, including the kind implanted in Bruno, were part of a Field Safety Corrective Action because they were subject to cleaning processes that could result in elevated levels of bacterial endotoxin and residual debris. Plaintiff’s hospital notified him about Biomet’s letter, but advised him that the devices used during his procedure were sterilized and therefore cannot cause infection. Bruno brought a products liability suit on September 25, 2020, which was dismissed by the district court on summary judgment. But the U.S. Fifth Circuit reversed.

After comparing and contrasting the facts and circumstances with those that were present in In re Taxotere, Hoerner v. Wesley-Jensen, and Jenkins v. Bristol-Myers Squibb, the Court of Appeal concluded that: “On the one hand, a jury could reasonably determine that contra non valentem tolled the prescription period until September 2019 – given Bruno’s consultations with his doctor, a medical professional. But on the other hand, a jury could just as reasonably determine that contra non valentem tolled prescription until some point in time before September 2019. It is unclear whether Bruno stopped suffering complications from infections after the removal, such that his recovery after the device’s removal would have put him on notice of any fault of Biomet’s before the letter was received. As the record stands, when the prescriptive period expired, and whether contra non valentum applies, is a question best left for the jury.”

 

Bruno v. Biomet, Inc., No.22-30405, 2023 U.S.App.LEXIS 18638 (5^th Cir. July 21, 2023).