Kirby et al v. Smith & Nephew Inc et al
MEMORANDUM OPINION AND ORDER: The grants Plaintiffs' Motion to Remand (Doc. 7 ) and denies as moot Plaintiffs' Supplemental Motion to Remand (Doc. 17 ). Pursuant to 28 U.S.C. § 1447(c), the court remands this action to the 192nd Judicial District Court, Dallas County, Texas, from which it was removed. (Ordered by Judge Sam A Lindsay on 2/17/2017) (sss)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
BONNIE KIRBY and ADRIAN KIRBY,
SMITH & NEPHEW, INC., et al.,
Civil Action No. 3:15-CV-2543-L
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiffs’ Motion to Remand, filed August 28, 2015 (Doc. 7) and
Plaintiffs’ Supplemental Motion to Remand, filed September 28, 2016 (Doc. 17). After carefully
considering the motions, briefing, record, and applicable law, the court grants Plaintiffs’ Motion to
Remand and denies as moot Plaintiffs’ Supplemental Motion to Remand.
This action arises from injuries allegedly suffered by Plaintiff Bonnie Kirby following two
hip replacement surgeries using component parts manufactured by Defendant Smith & Nephew, Inc.
(“Smith & Nephew”), a Delaware corporation with its principal place of business in Tennessee.
Plaintiffs Bonnie Kirby and her husband Adrian Kirby (“Plaintiffs”), who are Texas citizens, filed
Plaintiffs’ Original Petition (“Petition”) on June 24, 2015, in the 14th Judicial District Court, Dallas
County, Texas (later transferred to the 192nd Judicial District), against Smith & Nephew, a medical
device manufacturing company that was engaged in the making and selling of instruments and
devices for use in operating rooms throughout the world. Plaintiffs also sued a Smith & Nephew
sales representative, Brian Childress, a Texas citizen, and Neylu, Inc., alleged to be a “Texas
Memorandum Opinion and Order - Page 1
company” and a “sham corporation” established by Childress to solicit sales on behalf of Smith &
Nephew (collectively, “Childress”).
Regarding citizenship, Defendants assert that “[o]n information and belief, Plaintiffs are
citizens of Texas for purposes of this Court’s diversity jurisdiction[.]” Defs.’ Notice of Removal ¶
22. In Plaintiffs’ Motion to Remand, they concede that “Bonnie Kirby and Adrian Kirby are citizens
of the State of Texas.” Pls.’ Mot. to Remand ¶ 2. With regard to the citizenship of Brian Childress
and Neylu, Inc., Defendants assert that “the Petition alleges that Plaintiffs are . . . residents of
Texas.” Defs.’ Notice of Removal ¶ 25. In their Motion to Remand, Plaintiffs concede that Neylu,
Inc. and Brian Childress “are citizens of the State of Texas.” Pls’ Mot. to Remand ¶ 3. The court
concludes that the citizenship allegations in Defendants’ Notice of Removal, when coupled with
concessions in Plaintiffs’ Motion to Remand, are sufficient to establish that, for purposes of 28
U.S.C. § 1332, Plaintiffs Bonnie and Adrian Kirby are citizens of Texas, and Defendants Neylu, Inc.
and Brian Childress are citizens of Texas.
Plaintiffs also originally sued two other Smith & Nephew salesmen, Chris Baker and James
Thompson, as well as their respective corporate entities, CPB Enterprises and J. Sophus Enterprises,
Inc. On July 6, 2016, the parties filed a Stipulation of Dismissal (Doc. 12), dismissing with
prejudice all claims against these defendants.
In Plaintiffs’ Petition, Plaintiffs allege that Bonnie Kirby was injured and suffered severe
complications after receiving defective metal-on-metal hip implants in both hips, the components
of which were manufactured by Smith & Nephew. Plaintiffs allege that Dr. Richard D. Schubert
surgically implanted into Bonnie Kirby metal-on-metal hip implants during two total hip
arthroplasties on June 1, 2009 (left hip), and December 7, 2009 (right hip). Pls.’ Orig. Pet. ¶ 17.
Memorandum Opinion and Order - Page 2
Plaintiffs allege that the implants used in both surgeries consisted of at least seven separate device
components that Smith & Nephew designed, manufactured, marketed, distributed, promoted,
modified, packaged, and sold. Id. Plaintiffs allege that these seven components came from at least
three different Smith & Nephew hip implant systems (the “device components”). Id.
According to Plaintiffs, on June 1, 2009, when Bonnie Kirby had her left hip replaced, she
received the following Smith & Nephew components: (1) a R3 acetabular shell (ref # 71335552);
(2) a R3 cobalt-chromium acetabular liner (ref #71341152); (3) a modular head sleeve (ref #
7422100); (4) a hemi head (ref #74122540); (5) a Synergy porous plus femoral stem component (ref
# 71309014); and spherical head screws. Id. ¶ 18. On December 7, 2009, when Bonnie Kirby had
her right hip replaced, she received the following Smith & Nephew components: (1) a R3 acetabular
shell (ref # 71335550); (2) a R3 cobalt-chromium acetabular liner (ref #71341150); (3) a modular
sleeve (ref # 7422100); (4) a hemi head (ref #74122538); (5) a Synergy porous plus femoral stem
component (ref # 71309014); and spherical head screws. Id. ¶ 19. Plaintiffs allege that Bonnie
Kirby began experiencing problems and pain in the area of the hip implants and, on September 1,
2011, had to have her right hip surgically revised. Id. ¶ 21. The preoperative and postoperative
diagnoses were “Mechanical failure of right total hip arthroplasty.” Id. Plaintiffs allege that some
of the Smith & Nephew parts implanted into Bonnie Kirby had failed to perform as intended and
were a proximate or producing cause of her injuries and revision surgery. Plaintiffs allege that the
problems associated with both sets of implants continue to be experienced by Bonnie Kirby on both
sides as a result of this defective and unreasonably dangerous combination of Smith & Nephew parts.
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Plaintiffs further allege that to circumvent rigorous medical device regulations and conditions
for approval imposed by the Food and Drug Administration (“FDA”) on Smith & Nephew’s medical
device called the Birmingham Hip Resurfacing (“BHR”) System, which was used during Bonnie
Kirby’s hip implant, Smith & Nephew employed a commission-based sales force, including sales
representative Childress, to engage in conduct that Smith & Nephew could not, including promoting
illegal uses and design changes of Smith & Nephew products, such as modifications to the BHR
system without FDA approval and the unapproved mix of device components used in Bonnie Kirby’s
two surgeries. Id. ¶ 32. Plaintiffs allege that pursuant to a representative sales agreement, Childress
“actively distributed or otherwise placed the implant device components into the stream of
commerce.” Id. ¶ 43. Plaintiffs allege that Childress, pursuant to an agreement with Smith &
Nephew, at times, observed, commented on, and assisted with device implantation surgery.
According to Plaintiffs, Childress:
provided the Plaintiff’s surgeon with information about the availability of the illegal
combination of devices used on Plaintiff, and they also helped Smith & Nephew hide
the true dangers of this combination by failing to report problems and injuries
associated with its use. [Childress was] responsible for independently verifying that
the correct goods got from the operating room and documenting everything on Smith
& Nephew corporate forms, leaving no doubt about the exact combination of parts
used in each surgery. [Childress] thus played a key role in the provision of
information and the provision of this unapproved combination of device components
to Plaintiff’s physician.
Id. ¶ 41. Plaintiffs further allege that Childress was:
Smith & Nephews local distributor and physician contact point[.] This included the
provision of information to Plaintiff’s surgeon, including by not limited to product
information, warnings, surgical techniques, package inserts, demonstrations on
product implantation, and the proper combinations of Smith & Nephew devices for
implantation. [Childress’s] role as Smith & Nephew’s contact with physicians gave
[him] substantial control over the warnings, instructions, and product information
accompanying the implants, and [he] made express representations about the
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implants and their use and their adverse event history that were false, incomplete and
Id. ¶ 44. Additionally, Plaintiffs allege that Smith & Nephew used Childress “to provide, distribute,
and deliver the unapproved combination of parts to Dr. Schubert despite agreements it made with
the FDA when seeking product approval.” Id. ¶ 45. Plaintiffs allege that Childress “broke those
promises by modifying the device design and removing product labels and product information.”
Id. ¶ 46. More specifically, Plaintiffs allege that Childress
changed the design of the Birmingham Hip Resurfacing System by removing the
metal liner and other parts from that approved system and then distributing them for
profit in an unapproved, illegal combination along with other Smith & Nephew
component parts . . . The device design modification was knowingly made for a
commercial purpose, and the modifications proximately caused the mechanical
failure of the product, subjecting [Childress] to strict products liability for altering
or modifying the product under Texas Civil Practice and Remedies Code §
Id. ¶ 62.
Plaintiffs assert four causes of action against Childress: (1) negligence; (2) strict products
liability (marketing defect); (3) strict products liability (design defect); and (4) conspiracy. As to
Smith & Nephew, Plaintiffs bring causes of action for: (1) negligence; (2) strict products liability
(marketing defect and design defect); (3) breach of express warranty; (4) breach of implied warranty
of merchantability; (5) fraudulent concealment; (6) intentional or negligent misrepresentation; and
Defendant Smith & Nephew, with the consent of the other Defendants, removed the action
to this court on July 31, 2015, based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See
Defs.’ Notice of Removal ¶ 16. In the Notice of Removal, Smith & Nephew argue that Childress
was improperly joined, and that, therefore, his Texas citizenship should be disregarded for purposes
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of diversity jurisdiction. See id. ¶ 49. Plaintiffs moved to remand the case on August 28, 2015,
arguing that Childress was properly joined as a Defendant, and thus, there is no complete diversity
of citizenship, requiring remand to state court. The motion has been fully briefed and is ripe for
Applicable Legal Standards
Federal courts are courts of limited jurisdiction and possess only that power authorized by
the United States Constitution or by statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted). Unless Congress expressly provides otherwise, a defendant may
remove a state court civil action to a federal district court if the district court has original jurisdiction
over the action. 28 U.S.C. § 1441(a). A federal court has original jurisdiction over civil actions in
which there is diversity of citizenship between the parties and the amount in controversy exceeds
$75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The statute requires complete
diversity of citizenship; that is, a district court cannot exercise subject matter jurisdiction if any
plaintiff shares the same citizenship as any defendant. See Corfield v. Dallas Glen Hills LP, 355
F.3d 853, 857 (5th Cir. 2003) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)). In
considering citizenship, however, the court considers only the citizenship of real and substantial
parties to the litigation; it does not take into account nominal or formal parties that have no real
interest in the litigation. Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 460-61 (1980). The citizenship
of a party that is improperly joined must be disregarded in determining whether diversity of
citizenship exists. Johnson v. Heublein, 227 F.3d 236, 240 (5th Cir. 2000).
Memorandum Opinion and Order - Page 6
A party seeking to remove an action to federal court on the basis of fraudulent or improper
joinder bears a heavy burden. Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.
2004) (en banc). In Smallwood, the court “adopt[ed] the term ‘improper joinder’ as being more
consistent with the statutory language than the term ‘fraudulent joinder,’ which has been used in the
past. Although there is no substantive difference between the two terms, ‘improper joinder’ is
preferred.” Id. at 571 n.1. Accordingly, the court uses the term “improper joinder” in this opinion.
As the party wishing to invoke federal jurisdiction by alleging improper joinder, Defendants have
the burden to establish that the Texas Defendants were joined by Plaintiffs to defeat federal
jurisdiction. Id. at 575. The court is to resolve “any doubt as to the propriety of removal” in favor
of remand. Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (citation and quotation marks
To establish improper joinder, Defendants must prove: “(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the nondiverse party in state court.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State
Farm Lloyds, 181 F.3d 694, 698 (5th Cir. 1999)). Since Defendants do not assert fraud on the part
of Plaintiffs. the test for improper joinder is “whether the defendant has demonstrated that there is
no possibility of recovery by the plaintiff against an in-state defendant, which stated differently
means that there is no reasonable basis for the district court to predict that the plaintiff might be able
to recover against an in-state defendant.” Smallwood, 385 F.3d at 573 (citing Travis, 326 F.3d at
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In addressing this issue, the district court must determine whether a plaintiff has “any
possibility of recovery against the party whose joinder is questioned.” Travis, 326 F.3d at 648
(quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.
2002)). “If there is arguably a reasonable basis for predicting that state law might impose liability
on the facts involved, then there is no [improper] joinder.” Great Plains Trust, 313 F.3d at 312
(internal quotations and citations omitted). “This possibility, however, must be reasonable, not
merely theoretical.” Id. If there is a reasonable possibility that a plaintiff can recover on any of his
or her claims, there is no improper joinder, and the case must be remanded. Smallwood, 385 F.3d
at 575. In making this determination regarding improper joinder, a court does not “decide whether
the plaintiff will actually or even probably prevail on the merits, but look[s] only for a [reasonable]
possibility that [the plaintiff] may do so.” Dodson v. Spiliada Mar. Corp., 951 F.2d 40, 42 (5th Cir.
1992) (citations omitted). To determine whether a party was improperly joined, the court “must
evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all
contested issues of substantive fact in favor of the plaintiff.” Guillory v. PPG Indus., Inc., 434 F.3d
303, 308 (5th Cir. 2005) (quoting B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).
On the other hand, if there is no reasonable possibility for predicting liability against the nondiverse
defendant, improper joinder exists, and the action remains in federal court.
In deciding the question of improper joinder, the court may either (1) “conduct a Rule
12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether [it]
states a claim under state law against the in-state defendant”; or (2) in limited circumstances, conduct
a summary inquiry “to identify the presence of discrete and undisputed facts that would preclude
plaintiff’s recovery against the in-state defendant.” Smallwood, 385 F.3d at 573-74. “When a
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defendant seeks to remove a case, the question of whether jurisdiction exists is resolved by looking
at the complaint at the time the [notice of] removal is filed.” Brown v. Southwestern Bell Tel. Co.,
901 F.2d 1250, 1254 (5th Cir. 1990). A court may not look to postremoval filings or pleadings to
determine the issue of improper joinder. Griggs v. State Farm Lloyds, 181 F.3d at 700 (citation
omitted). Limiting the determination of questions regarding removal jurisdiction to the claims set
forth in the state pleadings at the time of removal ensures finality and early resolution of the
jurisdictional issue, both of which reduce expense and delay to the parties and court. Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
The Applicable Pleading Standard
In International Energy Ventures Management, L.L.C. v. United Energy Group, Limited, the
Fifth Circuit addressed whether state or federal pleadings standards apply to the issue of improper
joinder, holding that a federal court must apply the federal pleading standard. 818 F.3d 193, 208
(5th Cir. 2016). The federal pleading standard is that used for addressing a motion under Federal
Rule of Civil Procedure 12(b)(6).
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6), a plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v.
American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). While a
Memorandum Opinion and Order - Page 9
complaint need not contain detailed factual allegations, it must set forth “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555 (citation omitted). The “[f]actual allegations of [a complaint] must be enough to
raise a right to relief above the speculative level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. (quotation marks, citations, and footnote omitted).
When the allegations of the pleading do not allow the court to infer more than the mere possibility
of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to
it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise,
“‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to [the plaintiff’s] claims.’” Id.
(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). In
this regard, a document that is part of the record but not referred to in a plaintiff’s complaint and not
attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion.
Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012) (citation omitted). Further, it
is well-established and ‘“clearly proper in deciding a 12(b)(6) motion [that a court may] take judicial
notice of matters of public record.”’ Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)
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(quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15
F.3d 1338, 1343 n.6 (5th Cir. 1994)).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim
when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan
Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint
are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.” Iqbal, 556
U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences favorable to the
plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions.
R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not
evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has
pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355
F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with a Rule 12(b)(6) motion,
its task is to test the sufficiency of the allegations contained in the pleadings to determine whether
they are adequate enough to state a claim upon which relief can be granted. Mann v. Adams Realty
Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th
Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th Cir. 1997) (en banc).
Plaintiffs’ Petition alleges numerous causes of action against Childress, including claims for
violations of chapter 82 of the Texas Civil Practice and Remedies Code (the “Product Liability Act”)
. Because Texas law recognizes that a sales representative can, under certain circumstances,
potentially be liable for strict products liability violations, the sole issue before this court is whether
or not Plaintiffs have stated a viable claim against the Childress. See generally Escalante v. Deere
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& Co., 3 F. Supp. 3d 587, 589 (S.D. Tex. 2014) (citing Texas law under which seller may be liable
under Product Liability Act). If so, Childress was properly joined, and this court must grant
Plaintiffs’ Motion to Remand for lack of diversity jurisdiction. If the court finds a reasonable basis
to predict that Plaintiffs can potentially recover on one of the causes of action asserted against
Childress, the court must remand the entire case. Smith-Manning v. State Farm Lloyds, 2013 WL
5637539, at *2 (N.D. Tex. Oct. 14, 2013) (Lynn, J.) (quoting Gray ex rel. Rudd v. Beverly
Enterprises-Mississippi, Inc., 390 F.3d 400, 412 (5th Cir. 2004)).
The Childress Declaration and Deposition Excerpts
In opposition to Plaintiffs’ Motion to Remand, Smith & Nephew refers the court to
Childress’s declaration and deposition excerpts, filed in connection with Defendants’ Notice of
Removal. See Defs.’ Notice of Removal, Exs. 14 & 16. As already stated, in deciding the question
of improper joinder, the court may either (1) “conduct a Rule 12(b)(6)-type analysis, looking initially
at the allegations of the complaint to determine whether [it] states a claim under state law against
the in-state defendant”; or (2) in limited circumstances, conduct a summary inquiry “to identify the
presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state
defendant.” Smallwood, 385 F.3d at 573-74 (emphasis added). Childress’s declaration and
deposition excerpts contain non-specific denials of involvement in the design, manufacture, and
marketing of the implant devices, and fail to “identify the presence of discrete and undisputed facts”
that would preclude Plaintiffs’ recovery against Childress. Smallwood, 385 F.3d at 573-74.1 In
The court agrees with a recent decision by another court in this judicial district granting a motion
to remand in a nearly identical lawsuit brought against Smith & Nephew and Childress by another recipient
of allegedly defective hip replacement component parts. See Hutchens v. Smith & Nephew, Inc., et al., No.
3:13-CV-4979-B (N.D. Tex. Aug. 22, 2014) (Boyle, J.) (Doc. 7-1). In that case, confronted with a similar
declaration by Brian Childress, in evaluating the motion to remand, the court declined to consider Childress’s
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short, the Childress Declaration and deposition excerpts are inadequate to trigger a summary-type
analysis, and are insufficient to rebut the specific allegations against Childress in Plaintiffs’ Petition.
The court, therefore, concludes that the proper method for deciding the question of whether Childress
was improperly joined is to conduct a Rule 12(b)(6)-type analysis, focusing solely on Plaintiffs’
Whether Plaintiffs State a Viable Claim Against Childress
In ruling on the subject motion, this court only asks whether, applying the federal pleading
standard, there is a reasonable basis to predict that Plaintiffs state a viable claim and might be able
to recover under state law against Childress. See Smallwood, 385 F.3d at 573. For the reasons that
follow, the court concludes that Plaintiffs have stated a plausible claim for relief for violations of the
Texas Product Liability Act against Childress. See Twombly, 550 U.S. at 556.
Under chapter 82 of the Texas Civil Practice and Remedies Code, a “products liability
action” is defined as:
any action against a manufacturer or seller for recovery of damages arising out of
personal injury, death, or property damage allegedly caused by a defective product
whether the action is based in strict tort liability, strict products liability, negligence,
misrepresentation, breach of express or implied warranty, or any other theory or
combination of theories.
Tex. Civ. Prac. & Rem. Code § 82.001. Section 82.003 of the Texas Civil Practice and Remedies
Code “provides blanket protection for nonmanufacturing sellers of products from liability for injuries
declaration, submitted with Defendant Smith & Nephew’s notice of removal, finding that it was “at best, a
series of non-specific denials of involvement in the design, manufacture, and marketing of the implant
devices[.]” Hutchens, No. 3:13-CV-4979-B, slip op. 6 (Doc. 7-1). Quoting the Fifth Circuit’s decision in
Smallwood, the district judge stated that the Childress declaration “wholly fails to ‘identify the presence of
discrete and undisputed facts that would preclude plaintiff’s recovery’ against him.” Id. (quoting Smallwood,
385 F.3d at 573-74). As such, the district judge concluded that “the appropriate method of testing the
sufficiency of Plaintiffs’ pleadings is through a Rule 12(b)(6)-type analysis.” Id. This court agrees and
similarly finds this is not a case in which the court need look beyond the pleadings.
Memorandum Opinion and Order - Page 13
caused by a product unless one of the specified exceptions apply.” Gill v. Michelin N. Am., Inc., 3
F. Supp. 3d 579, 584 (W.D. Tex. 2013) (original emphasis) (citation omitted). In this case, Plaintiffs
allege that Childress is a nonmanufacturing seller and that he is liable under § 82.0003(a)(2) of the
Texas Civil Practice and Remedies Code, one of the exceptions to the “blanket protection” afforded
nonmanufacturing sellers discussed directly above.2
Section 82.003(a)(2) provides that a seller may be liable where the “seller altered or modified
the product and the claimant’s harm resulted from that alteration or modification.” Tex. Civ. Prac.
& Rem. Code § 82.003(a)(2). As summarized above and as set forth in Plaintiffs’ Petition, Plaintiffs
provide detailed factual allegations that Childres changed the design of the BHR system by removing
the metal liner and other parts from the approved system and then distributing them for profit in an
unapproved, illegal combination along with other Smith & Nephew component parts. Pls.’ Orig Pet.
¶ 62. Plaintiffs further make specific allegations that Bonnie Kirby suffered harm as a result of
Based on the allegations in Plaintiffs’ Petition, the court concludes that Plaintiffs have
alleged a plausible claim for recovery against Childress under the Texas Product Liability Act. Since
there is a reasonable basis to predict that Bonnie Kirby could recover against Childress under this
The court rejects Defendants’ argument in their Notice of Removal that Childress is not a “seller”
under Chapter 82 of the Texas Civil Practice and Remedies Code, because he “never took title to or
ownership interest in the components.” See Defs.’ Notice of Removal ¶ 31. A “seller” is “a person who is
engaging in the business of distributing or otherwise placing, for any commercial purpose, in the stream of
commerce for use or consumption a product or any component thereof.” Tex. Civ. Prac. & Rem. Code §
82.001(3). As Plaintiffs correctly note in their Motion to Remand, this definition does not require title to,
or ownership interest in, the products, but only that a defendant “distribute or place” the product in the stream
of commerce, which Plaintiffs have sufficiently alleged. Pls.’ Mot. to Remand 5.
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statute, the court finds that Plaintiffs’ Petition is sufficient under the federal pleading standard to
state a plausible claim against Childress under Texas law. See Iqbal, 556 U.S. 662 at 678.3
Because Childress was not improperly joined, his citizenship destroys diversity jurisdiction
and, therefore, the court must remand this action. See 28 U.S.C. § 1447(c). For the reasons herein
stated, the grants
Plaintiffs’ Motion to Remand (Doc. 7) and denies as moot Plaintiffs’
Supplemental Motion to Remand (Doc. 17). Pursuant to 28 U.S.C. § 1447(c), the court remands
this action to the 192nd Judicial District Court, Dallas County, Texas, from which it was removed.
The clerk of the court is directed to effect the remand in accordance with the usual procedure.
It is so ordered this 17th day of February, 2017.
Sam A. Lindsay
United States District Judge
Defendants argue that the claims against Childress are preempted because Childress could not give
warnings other than those approved by the FDA. Defs.’ Notice of Removal 16. As the court has not had
need to consider the viability of Plaintiffs’ claims that Childress changed the warnings or construed them in
a misleading way, this argument need not be addressed.
Memorandum Opinion and Order - Page 15
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