United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED July 21, 2023 No. 22-30405 Lyle W. Cayce ____________ Clerk

Andrew Bruno,

Plaintiff—Appellant,

versus

Biomet, Incorporated; Unidentified Parties; Zimmer, Incorporated,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:20-CV-2706 ______________________________

Before Higginbotham, Smith, and Engelhardt, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: In this diversity case, Andrew Bruno sued Biomet Inc. and Zimmer, Inc. (collectively, “Biomet”) under the Louisiana Products Liability Act (“LPLA”). The district court found Bruno’s claims were prescribed and granted summary judgment in favor of Biomet. Finding that the ultimate question of prescription is best left for the jury to determine, we VACATE the district court’s summary judgment order and REMAND for further proceedings consistent with this opinion, including any additional discovery the district court may order. Case: 22-30405 Document: 00516828778 Page: 2 Date Filed: 07/21/2023

No. 22-30405

I. In December 2016, Andrew Bruno had shoulder surgery to implant a prosthetic device with parts manufactured by Biomet. Two-weeks post- operation, Bruno followed-up with his surgeon, Dr. Doulens, and reported some clear drainage at the bottom of his incision. Although the doctor did not think an infection caused the drainage, he prescribed antibiotics. Over the next 14 months, Bruno repeatedly returned to the hospital with post-op complications. Bruno’s doctor believed the complications were caused by a superficial skin-related infection, possibly a suture reaction. Then, in January 2017, when a sampling of the drainage tested positive for Enterobacter cloacae bacteria, Dr. Doulens recommended an incision and drainage procedure. In May 2017, the doctor performed the procedure, finding the device was normal with no evidence of infection. With the continuing problems, Dr. Doulens and Bruno discussed options. Bruno elected to remove the device. By this point, there was an “obvious . . . deep infection” affecting the joint and the device. Once a prosthesis is infected, according to expert reports in the record, it is difficult to clear and doctors recommend removing it. On November 1, 2018, Dr. Doulens performed the removal surgery. 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 “these devices were subject to cleaning processes that could result in elevated levels of bacterial endotoxin and residual debris remaining on the devices.” Bruno’s hospital notified Bruno about Biomet’s letter that same month but advised him that “[t]he devices used during [his] procedure were sterilized and therefore cannot cause infection.”

2 Case: 22-30405 Document: 00516828778 Page: 3 Date Filed: 0