Opinion
EP-20-CV-49-KC
2020-05-14
Luz PEREZ and Dario Perez, Plaintiffs, v. AMERICAN MEDICAL SYSTEMS INC., Defendant.
Karolina S. Kulesza, Driggs Bills & Day, Salt Lake City, UT, Jason Murphy, Pro Hac Vice, Driggs, Bills & Day PLLC, Seattle, WA, for Plaintiffs. Christina M. Vitale, Reed Smith LLP, Houston, TX, Barbara R. Binis, Reed Smith, Stephen J. McConnell, Cira Centre, Philadelphia, PA, for Defendant.
Karolina S. Kulesza, Driggs Bills & Day, Salt Lake City, UT, Jason Murphy, Pro Hac Vice, Driggs, Bills & Day PLLC, Seattle, WA, for Plaintiffs.
Christina M. Vitale, Reed Smith LLP, Houston, TX, Barbara R. Binis, Reed Smith, Stephen J. McConnell, Cira Centre, Philadelphia, PA, for Defendant.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE On this day, the Court considered Defendant's Motion for Summary Judgment, ECF No. 51. For the following reasons, the Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
This products liability action originated in the United States District Court for the Southern District of West Virginia, where it was filed on March 24, 2016, in connection with In re American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation (MDL No. 2325). See Short Form Compl., ECF No. 1. Plaintiffs are Luz Perez, who was allegedly injured by Defendant's product, and her spouse, Dario Perez. Id. at 1. Plaintiffs' case is one of approximately 18,824 cases that have been filed against Defendant, a Delaware corporation, arising out of its allegedly wrongful design, manufacture, marketing, and sale of a line of pelvic mesh products. See Master Long Form Compl. & Jury Demand ("Long Form Compl."), ECF No. 44-5; February 6, 2020, Transfer Order (Joseph R. Goodwin, J.), ECF No. 42.
This individual case was transferred to this Court on February 20, 2020. See Electronic Transfer, ECF No. 45. All discovery was completed prior to transfer. See Transfer Order. On March 9, 2020, Defendant filed the instant Motion. Plaintiffs filed a Response, ECF No. 56, to which Defendant filed a Reply, ECF No. 59. Defendant included Proposed Undisputed Facts (the "PUF"), as an appendix to its Motion. See Mot. 22. Because Plaintiffs did not file a Response to the PUF in accordance with the Court's Standing Order Regarding Motions for Summary Judgment, the Court ordered them to do so. April 15, 2020, Order, ECF No. 60. Plaintiffs subsequently filed their Response to Proposed Undisputed Facts, ECF No. 61.
On that day, Defendant also filed a Motion to Exclude the Case-Specific Opinions and Testimony of Ralph Zipper, M.D., Pursuant to Daubert and Federal Rules of Evidence 702 and 703 (the "Motion to Exclude"), ECF No. 50. The Court does not address the Motion to Exclude in this Order.
The following facts are derived from Defendant's PUF, Plaintiffs' Response to the PUF, and the portions of the record referenced by the parties in the Motion, the Response, and the Reply. The facts are undisputed unless otherwise noted.
On February 11, 2010, in El Paso, Texas, Dr. Linda Lacy implanted Ms. Perez with an Elevate mesh device (the "Mesh"), a product which was designed, manufactured, and sold by Defendant. PUF ¶ 2; Reply Ex. A (containing notes taken by Dr. Lacy following the procedure), ECF No. 59-1. Prior to performing the procedure, Dr. Lacy informed Ms. Perez of some of the risks associated with the Mesh. Reply Ex. E ("Dep. of Linda Lacy") 20:8–13, ECF No. 59-5. Dr. Lacy testified that she was independently aware of these risks and did not rely on the Instructions for Use that Defendant created and provided to Dr. Lacy together with the Mesh. Reply 2 (citing Dep. of Linda Lacy 16:15–25, 18:5–7, 19:3–8.).
Ms. Perez claims that the Mesh has caused her to suffer dyspareunia, abdominal pain, pain with urinating, erosion, urinary tract infections, and incontinence. See Reply Ex. C ("Fact Sheet") 6–7, ECF No. 59-3. Defendant's Instructions for Use, provided to Dr. Lacy together with the Mesh, warn of each of these risks. Reply 2 (citing Reply Ex. D ("Instructions for Use"), ECF No. 59-4). Moreover, Dr. Lacy was independently aware of each of these risks prior to implanting the Mesh in Ms. Perez. Id. (citing Dep. of Linda Lacy 20:8–24, 21:11–18).
The parties agree that Ms. Perez began to experience pain and other complications immediately after the initial procedure. PUF ¶ 3. Indeed, in the Plaintiff's Fact Sheet that Ms. Perez completed during discovery, she wrote that "[the Mesh] has caused me pain and complications from the start." PUF ¶ 3; Mot. Ex. 2 ("Fact Sheet"), at 11, ECF No. 51-1. However, the parties dispute when Ms. Perez first realized that her pain and complications were attributable to defects in the Mesh. Resp. to PUF 2. Defendant argues that the evidence demonstrates Ms. Perez was aware that the Mesh was the cause of her problems by February 8, 2011, at the latest, when she agreed to allow Dr. Lacy to perform a corrective procedure to remove part of the Mesh. See Mot. 3 (citing Dep. of Luz Perez 96:8–23). Plaintiffs argue that the evidence demonstrates Ms. Perez did not attribute her injuries to the Mesh until she saw advertisements about transvaginal mesh litigation, some unspecified number of years later. See Resp. 5 (citing Dep. of Luz Perez 7:22–8:19, ECF No. 56-7).
Selected excerpts from the May 23, 2019 Deposition of Luz Perez were identified by Defendant as Exhibit Three to its Motion for Summary Judgment. See Mot. Ex. 3, ECF No. 51-1. Plaintiffs rely on other portions not excerpted by Defendant and append the entire deposition transcript as Exhibit G to their Response. See Resp. Ex. G, ECF No. 56-7. The Court provides all citations using the page and line numbers produced by the deposition transcription service.
II. DISCUSSION
A. Standard
A court must enter summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Weaver v. CCA Indus., Inc. , 529 F.3d 335, 339 (5th Cir. 2008). "A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Ellison v. Software Spectrum, Inc. , 85 F.3d 187, 189 (5th Cir. 1996).
"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Wallace v. Tex. Tech. Univ. , 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[,]" or show "that the materials cited [by the movant] do not establish the absence ... of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c).
The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than "conclusory allegations," "unsubstantiated assertions," or "a ‘scintilla’ of evidence." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc. , 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505.
B. Analysis
Defendant moves for summary judgment dismissal of all of Plaintiffs' claims. See Mot. 13. When they filed this lawsuit, Plaintiffs selected all available "counts" provided on the Short Form Complaint that was created in order to streamline pleadings in the MDL. See Short Form Compl. 4–5. These "counts" include negligence, strict liability design defect, strict liability manufacturing defect, strict liability failure to warn, strict liability defective product, breach of express warranty, breach of implied warranty, fraudulent concealment, constructive fraud, negligent misrepresentation, negligent infliction of emotional distress, violation of consumer protection laws, gross negligence, unjust enrichment, loss of consortium, and punitive damages. Id.
At summary judgment, however, Plaintiffs aver that they are no longer pursuing their claims for fraudulent concealment, breach of express warranty, negligent infliction of emotional distress, constructive fraud, strict liability manufacturing defect, and unjust enrichment. See Resp. 6–9. Accordingly, Defendant's Motion for Summary Judgment is granted as to these claims. See id.
As to the remaining claims, Defendant principally argues that all must be dismissed by operation of their respective statutes of limitations. Mot. 2–8. Defendant also argues that it is entitled to summary judgment on Plaintiffs' "violation of consumer protection laws" claim because the Texas Deceptive Trade Practices-Consumer Protection Act (the "DTPA"), Tex. Bus. & Com. Code Ann. § 17.41 et seq., does not permit recovery for bodily injury. Mot. 8–9. Lastly, Defendant argues that Plaintiffs' claims for strict liability failure to warn, breach of implied warranty, negligent misrepresentation, and violation of the DTPA must be dismissed under the independent intermediary doctrine. Reply 6–12.
1. Statute of limitations
A plaintiff must timely commence suit as provided by the applicable statute of limitations. Childs v. Haussecker , 974 S.W.2d 31, 36 (Tex. 1998). Plaintiffs' claims have statutes of limitations of between two and four years from the date of accrual. Claims under the DTPA, as well as tort and strict liability claims for personal injury, have a statute of limitations of two years. See Tex. Soil Recycling, Inc. v. Intercargo Ins. Co. , 273 F.3d 644, 649 (5th Cir. 2001) (citing Tex. Bus. & Com. Code § 17.565 (West 2020) ); Coody v. A.H. Robins Co. , 696 S.W.2d 154, 155 (Tex. App. 1985) (citing Tex. Civ. Prac. & Rem. Code § 16.003(a) (West 2020)). Claims for breach of implied warranty have a four-year statute of limitations. Coody , 696 S.W.2d at 155 (citing Tex. Bus. & Com. Code § 2.725(a) (West 2020)). "In general, a cause of action accrues and the limitations period begins when a wrongful act causes a legal injury." Tex. Soil Recycling , 273 F.3d at 649 ; Childs , 974 S.W.2d at 36.
It is undisputed that Ms. Perez was injured by Defendant's allegedly defective product when it was implanted on February 11, 2010. And, Plaintiffs did not file suit until March 24, 2016, over six years later. Therefore, absent some mechanism for tolling the statute of limitations, Plaintiffs' claims would be stale and subject to dismissal. See Childs , 974 S.W.2d at 36. Plaintiffs argue that "the discovery rule" provides just such a tolling mechanism. See Resp. 2–6.
a. The discovery rule
"[T]he Fifth Circuit applying Texas law has repeatedly held that the discovery rule defers the accrual of injuries resulting from implanted devices." See Brandau v. Howmedica Osteonics Corp. , 439 F. App'x 317, 322 (5th Cir. 2011) ; Porterfield v. Ethicon, Inc. , 183 F.3d 464, 467 (5th Cir. 1999). The discovery rule "tolls the statute of limitations until the plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the nature of the injury." Porterfield , 183 F.3d at 467 (citing Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 403 (5th Cir. 1998) ). In the products liability context, this means that the statute of limitations is tolled until the plaintiff discovers or should have discovered a causal connection between her injury and the allegedly defective product. Id. ; see also In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig. (Mentor Corp. I ), 4:08-MD-2004, 2016 WL 3049491, at *2 (M.D. Ga. May 27, 2016) (collecting Texas and Fifth Circuit products liability discovery rule cases). "The term discovered is quite broad, and it occurs whenever the plaintiff has knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights." In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig. (DePuy Orthopaedics) , 888 F.3d 753, 777 (5th Cir. 2018) (alterations and quotation marks omitted).
"Inquiries involving the discovery rule usually entail questions for the trier of fact." Childs , 974 S.W.2d at 44. And, "[a]ppellate courts will reverse the factfinder's judgment on the accrual date only where the connection between the treatment decision and the pain is obvious—for example, when the plaintiff or his physician expressly connects the symptom to the allegedly defective product." DePuy Orthopaedics , 888 F.3d at 777 (affirming jury's assessment of accrual date). That a plaintiff began to suffer pain at the site of an implanted device on a certain date does not, by itself, establish notice of the connection between injury and a product defect on that date. See id. ; Brandau , 439 F. App'x at 321 (reversing district court because the plaintiff's products liability claim against an implanted-device manufacturer "did not automatically accrue when she began to experience pain"); Pavich v. Zimmer, Inc. , No. 97-20901, 1998 WL 612290, at *2 (5th Cir. Aug. 27, 1998) (holding that, even though the plaintiff began to experience pain earlier, he was not on notice until his doctor informed him that the pain was caused by breaks in an implanted device).
Defendant argues that Plaintiffs' claims accrued by February 8, 2011, at the latest, when Dr. Lacy performed a Mesh revision procedure on Ms. Perez. By this date, Defendant argues, it is beyond dispute that Ms. Perez knew that her symptoms were caused by the Mesh. In support of this argument, Defendant relies on two pieces of evidence. First is Ms. Perez's written answer to a question on the Fact Sheet that was used to streamline discovery in the MDL, which asked: "[e]xplain why you consented to have the pelvic mesh product(s), or any portion of it, removed?" Fact Sheet 6. Ms. Perez responded: "it has caused me pain and complications from the start." Id.
The second piece of evidence Defendant points to is Ms. Perez's deposition, in which Defendant's attorney asked Ms. Perez to confirm her response to the Fact Sheet question: "So you agreed to allow Dr. Lacy to remove part of the mesh on February 8th of 2011 because it had caused you – it was causing you pain and complications. Correct?" Dep. of Luz Perez 96:19–22. Ms. Perez responded, "Yes, uh-huh." Id. at 96:23.
In their Response, Plaintiffs identify a separate portion of the same deposition, in which Ms. Perez expressly disavowed attributing her problems to the Mesh early on:
Q. Okay. And you know that, prior to the mesh implant, you didn't have any of these problems. Right?
A. Correct.
Q. And immediately after the mesh implant, you started having these problems.
A. I started having a lot of problems, yes.
Q. When you started having those problems, was there any doubt in your mind that it was due to the mesh?
A. I don't understand what you mean by "doubt."
Q. Well, when you started having these problems, what was your first thought?
A. I don't know. I just knew it wasn't normal. I just knew it wasn't there before.
Q. And so, in your mind, the problems were being caused by the mesh.
A. Not in my mind. I believe that when I would see all those ads on TV, as I mentioned before, and when I saw the – on the internet all the symptoms I would have, that's when I realized.
Dep. of Luz Perez 102:18–103:15.
With this testimony, Ms. Perez either clarified or retracted her previous responses, clearly stating that she did not believe her health problems to be caused by the Mesh early on. She also proffered an alternative explanation for when she was put on notice of the connection: when she saw advertisements about mesh litigation, likely some time in 2014 or 2015, less than two years before Plaintiffs filed this action. See Resp. 5 (citing Dep. of Luz Perez 7:22–8:4, 8:9–19).
Defendant argues that the evidence here is similar to the plaintiff's statements in Porterfield , a case in which the Fifth Circuit affirmed summary judgment dismissal on statute of limitations grounds. See 183 F.3d at 466. However, in Porterfield , the plaintiff affirmatively stated that she "knew the problems were related to the mesh" within weeks of having the surgery. Id. at 467. She began to conduct her own research to corroborate the suspected connection between the mesh and her injuries, and then sent a letter to her doctor five months later, in which she explicitly connected her problems to the mesh. Id. The Fifth Circuit held that the evidence established beyond any genuine dispute that, at the latest, the plaintiff was aware that the mesh had caused her injury by the date that she sent the letter. Id.
Here, by contrast, Defendant does not present any evidence of statements made by Ms. Perez in 2010 or 2011 evincing her recognition of the connection between the Mesh and her injuries. See id. Ms. Perez's discovery responses identified by Defendant may be probative of that connection, but unlike the evidence in Porterfield , they do not conclusively establish that Ms. Perez knew her problems were caused by the Mesh in 2011. And, even if that evidence, in isolation, could be seen as conclusive, it is called into dispute by Ms. Perez's later testimony, in which she clearly stated that she did not realize that the Mesh caused her injuries until she saw advertisements years later. The evidence in the record does not conclusively establish that Ms. Perez expressly connected her injury to the Mesh at the time of the corrective procedure in 2011. See DePuy Orthopaedics , 888 F.3d at 777.
Moreover, at least one Texas appellate court has held, in an implanted-device products liability action, that a plaintiff's inconsistent testimony about when "she ‘knew’ her problems were related to her implants" is enough for the discovery rule question to go to a jury. See Belmonte v. Baxter Healthcare Corp. , No. 05-00-01579, 2002 WL 560996, at *2–3 (Tex. App. 2002) (citing Velsicol Chem. Corp. v. Winograd , 956 S.W.2d 529, 530 (Tex. 1997) ) (noting that the defendant bears the burden of negating the discovery rule under Texas law). Here, in the least, Ms. Perez's two statements create a genuine dispute of material fact as to when she knew that her pain and complications were caused by the Mesh. See id.
Relying on non-binding authority from outside the Fifth Circuit, Defendant characterizes Ms. Perez's testimony as internally inconsistent, and argues that it is insufficient to create a genuine dispute of material fact. See Reply 3 (citing, inter alia, UA Local 343 v. Nor-Cal Plumbing, Inc. , 48 F.3d 1465, 1473 (9th Cir. 1994) ). In the cases referenced by Defendant, the parties opposing summary judgment, or their witnesses, directly and unambiguously contradicted their own prior statements. See Horn v. United Parcel Servs., Inc. , 433 F. App'x 788, 796 (11th Cir. 2011) ; UA Local 343 , 48 F.3d at 1473. Here, however, Ms. Perez's testimony is not necessarily inconsistent. Defense counsel's earlier question—"So you agreed to allow Dr. Lacy to remove part of the mesh on February 8th of 2011 because it had caused you – it was causing you pain and complications. Correct?"—did not directly ask Ms. Perez whether she knew in February 2011 that the Mesh was causing her pain and complications. Certainly, it asked whether Ms. Perez was experiencing pain and complications, whether she consented to undergo a corrective procedure because she was experiencing pain and complications, and whether she knew later on, at the time of the deposition, that the Mesh had been the cause of those complications all along. However, when asked directly whether she initially attributed her health problems to the Mesh itself, she clearly stated that she did not realize the Mesh was the cause of the complications until she saw advertisements about mesh litigation years later. A reasonable fact finder could read Ms. Perez's latter statement as a clarification of the first, rather than read the two statements in conflict.
In the absence of any conclusive, unrebutted evidence of when Ms. Perez knew that her injuries were caused by the Mesh, this case is in line with the many district court decisions holding, under Texas law, that a plaintiff can be implanted with a device, experience pain and complications, undergo corrective surgeries, and reasonably still not attribute her symptoms to the implanted device until much later. See, e.g., Rosman v. Zimmer Dental, Inc. , No. H-17-693, 2018 WL 2335358, at *1–2 (S.D. Tex. Mar. 1, 2018) (holding that claim did not necessarily accrue after two corrective procedures at site of dental implant, but only when x-rays later revealed the implant itself was fractured); In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig. (Mentor Corp. II) , No. 4:08-MD-2004, 2016 WL 4732931, at *3 (M.D. Ga. Sept. 8, 2016) (holding that claim did not accrue until after the plaintiff's fourth corrective procedure, when she testified that she "knew something was wrong" with the product); Holcomb v. Bos. Sci. Corp. , No. 2:12-cv-06302, 2016 WL 2343892, at *3 (S.D. W. Va. May 3, 2016) ("A reasonable juror could find that Ms. Holcomb believed the implantation surgery itself—and not the mesh specifically—caused her injuries .... [even after the mesh] was partially removed."); Jenkins v. Bos. Sci. Corp. , No. 2:13-cv-09968, 2016 WL 1448867, at *3 (S.D. W. Va. Apr. 12, 2016) ("[The plaintiff] could reasonably have concluded that her problems were due to her own individual healing process and that a ‘trimming’ of the mesh was all that was required."); Hovey v. Cook Inc. , 97 F. Supp. 3d 836, 843–44 (S.D. W. Va. 2015) (holding that jury could find the plaintiff did not discover causal connection until seeing an advertisement long after undergoing corrective surgery).
The Court finds this weight of authority persuasive. A factfinder could determine that Ms. Perez reasonably attributed her pain and complications to her own healing process at first, and only realized that the Mesh was the cause of her problems after seeing advertisements for mesh litigation years later. See Hovey , 97 F. Supp. 3d at 843–44. Because there is a genuine dispute of fact as to when Ms. Perez knew or reasonably should have known that the Mesh was the cause of her pain and complications, Defendant's request for summary judgment on statute of limitations grounds is denied.
2. DTPA
Defendant next argues that it is entitled to judgment as a matter of law on Plaintiffs' DTPA claim because Section 17.49(e) of the DTPA bars personal injury claims. Mot. 8–9. Plaintiffs propose a different interpretation of Section 17.49(e), which would prohibit them from recovering most non-economic damages resulting from bodily injury but permit them to recover economic damages—including medical expenses and lost wages—as well as damages for mental anguish. Resp. 6–7.
It does not appear that the Texas Supreme Court or the Fifth Circuit have ever considered Section 17.49(e), let alone whether that Section permits plaintiffs with DTPA claims involving personal injury to recover damages for medical expenses, lost wages, and mental anguish. When a state's highest court has not considered an issue of state substantive law, the federal court must make an "Erie guess" and "determine as best it can, what the highest court of the state would decide." Gaia Techs. Inc. v. Recycled Prods. Corp. , 175 F.3d 365, 375 n.11 (5th Cir. 1999) (quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co. , 953 F.2d 985, 988 (5th Cir. 1992) ).
"In making an Erie guess, [federal courts] defer to intermediate state appellate court decisions, unless convinced by other persuasive data that the highest court of the state would decide otherwise." Mem'l Hermann Healthcare Sys. Inc. v. Eurocopter Deutschland , 524 F.3d 676, 678 (5th Cir. 2008) (quoting Herrmann Holdings Ltd. v. Lucent Tech. Inc. , 302 F.3d 552, 558 (5th Cir. 2002) ). The court looks not only to the intermediate state appellate decisions, but also to "the general rule on the issue, decisions from other jurisdictions, and general policy concerns." Silo Rest. Inc. v. Allied Prop. & Cas. Ins. Co. , 420 F. Supp. 3d 562, 569 (W.D. Tex. 2019) (quoting Martinez v. Walgreen Co. , 935 F.3d 396, 398 (5th Cir. 2019) ).
Under Texas law, "[w]hen a statute's language is clear and unambiguous, it is inappropriate to resort to rules of construction or extrinsic aids to construe the language," "unless a contrary intention is apparent from the context" or a plain-language interpretation would lead to absurd results. City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) (citing Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser , 140 S.W.3d 351, 356 (Tex. 2004) ; St. Luke's Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997) ; Taylor v. Firemen's and Policemen's Civil Serv. Comm'n of Lubbock , 616 S.W.2d 187, 189 (Tex. 1981) ; Ex parte Roloff , 510 S.W.2d 913, 915 (Tex. 1974) ).
a. The plain text
The text of Section 17.49(e) of the DTPA provides, in pertinent part: "Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish." Tex. Bus. & Com. Code § 17.49(e) (West 2020). Subsections (b) and (h) read as follows:
(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) the amount of economic damages found by the trier of fact. If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer may also recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of economic damages; or if the trier of fact finds the conduct was committed intentionally, the consumer may recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of damages for mental anguish and economic damages.
....
(h) Notwithstanding any other provision of this subchapter, if a claimant is granted the right to bring a cause of action under this subchapter by another law, the claimant is not limited to recovery of economic damages only, but may recover any actual damages incurred by the claimant, without regard to whether the conduct of the defendant was committed intentionally.
Id. § 17.50(b), (h).
The Subsection (h) exception to Section 17.49(e) permits plaintiffs with personal injury-like claims to recover any damages for bodily injury that are authorized by a separate "tie-in statute," giving them the right to sue under the DTPA. See, e.g., Roberts v. Zev Techs., Inc. , No. 1:15-CV-309, 2015 WL 7454688, at *6–7 (W.D. Tex. Nov. 23, 2015) ; Hartford Lloyd's Ins. Co. v. Apothecure, Inc. , No. 3:08-CV-0288-P, 2010 WL 3184323, at *5 (N.D. Tex. Jan. 20, 2010). The parties agree that Subsection (h) does not apply here—Plaintiffs' DTPA claim is predicated on an alleged breach of implied warranty, not on a cause of action authorized by another statute. See Resp. 6–7. Accordingly, the Court only analyzes Subsection (h) to the extent that it sheds light on the meaning of Section 17.49(e) and Subsection (b).
Subsection (b) provides the general rule for recovery of damages when plaintiffs sue directly under the DTPA, rather than under a Subsection (h) tie-in statute. It provides only for the recovery of economic damages, and, upon a showing of knowing or intentional misconduct, damages for mental anguish. Tex. Bus. & Com. Code § 17.50(b). Elsewhere in the DTPA, "economic damages" are defined to include "compensatory damages for pecuniary loss, including costs of repair and replacement," and expressly exclude "exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society." Id. § 17.45(11).
While Defendant argues that Section 17.49(e) excludes a particular category of claims—personal injury claims—from the DTPA altogether, Plaintiffs argue that it merely underscores that non-economic, personal injury-like damages are unrecoverable under the DTPA. Because the text of Section 17.49(e) refers back to the statute's general damages provision, subsection (b), to create an exception, the plain language supports Plaintiffs' argument. Had the legislature intended to categorically bar personal injury-like claims altogether, it is implausible that they would have included an exception, let alone an exception that referenced the DTPA's general damages provision.
Moreover, a plain reading of the statute's definition of economic damages also supports the conclusion that Section 17.49(e) was only intended to reinforce a prohibition on recovery of non-economic bodily injury damages, such as pain and suffering and loss of consortium. See id. § 17.45(11). Had the drafters wanted to exclude claims for lost wages, medical expenses, or other economic damages arising from a physical injury, they could have carved them out of the definition of economic damages, together with "damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society," many if not all of which are damages for "bodily injury." See id. They did not. Accordingly, the plain text supports the conclusion that claims involving bodily injury are not excluded from the ambit of the DTPA to the extent that they seek to recover only damages that are otherwise permissible under the statute.
And, that plain language is conclusive "unless a contrary intention is apparent from the context" or it would lead to absurd results. See City of Rockwall , 246 S.W.3d at 625–26. The surrounding statutory context further reinforces the conclusion that Section 17.49(e) merely reiterates that the DTPA's ordinary prohibition on non-economic damages applies in the context of bodily injury. See id. Section 17.49 creates a number of exemptions from the scope of the DTPA. See Tex. Bus. & Com. Code § 17.49. For instance, Section 17.49(i) excludes claims against licensed brokers and salespeople, unless they commit one of three specified acts which are otherwise actionable under the DTPA. See id. § 17.49(i). Similarly, Section 17.49(c) excludes claims arising from the provision of certain professional services, unless they involve one of several specifically enumerated DTPA violations. See id. § 17.49(c). Subsections (c) and (i) thus qualify their exemptions in order to preserve claims for certain kinds of DTPA violations—that is, certain bad acts. See id. § 17.49(c), (i). Subsection (e), on the other hand, is the only provision in Section 17.49 to qualify the scope of its exclusion with a reference to the DTPA damages provisions, rather than one or more of its proscriptive provisions. See id. § 17.49. This confirms the notion that Subsection (e) is concerned with reinforcing a bar on recovery of certain damages, not prohibiting certain categories of claims altogether.
In sum, Section 17.49(e) only serves to highlight, in the context of personal injury-like claims, the sort of damages that are generally recoverable under the DTPA. The legislature apparently added this additional provision in order to underscore that non-economic damages for bodily injury—like pain and suffering or disfigurement, which are quite common in personal injury claims—were beyond the scope of the statute. The inclusion of two separate provisions of law in order to accomplish the same objective is not novel. See Greater Hous. P'ship v. Paxton , 468 S.W.3d 51, 66 (Tex. 2015) (quoting In re Estate of Nash , 220 S.W.3d 914, 917–18 (Tex. 2007) ) ("[T]here are times when redundancies are precisely what the Legislature intended."); In re City of Georgetown , 53 S.W.3d 328, 336 (Tex. 2001) ("The only reasonable explanations for the redundancies ... is that the Legislature repeated itself out of an abundance of caution, for emphasis, or both."); Springfield Fire & Marine Ins. Co. v. Wade , 95 Tex. 598, 68 S.W. 977, 978 (1902) ("The habit of using apparently redundant expressions in statutes and contracts and deeds for the purpose of excluding any possibility of misconstruction is very frequent."). Accordingly, dismissal of an otherwise cognizable DTPA claim is not warranted just because it involves a personal injury.
Likewise, the United States Supreme Court has also acknowledged that despite the rule disfavoring surplusage, Congress sometimes uses redundant language intentionally. See Ali v. Fed. Bureau of Prisons , 552 U.S. 214, 226, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (holding that by using redundant language "Congress may have simply intended to remove any doubt that officers of customs or excise were included in ‘law enforcement officer[s]’ "); Fort Stewart Sch. v. Fed. Labor Relations Auth. , 495 U.S. 641, 646, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990) ("It might reasonably be argued, of course, that these two exceptions are indeed technically unnecessary, and were inserted out of an abundance of caution—a drafting imprecision venerable enough to have left its mark on legal Latin (ex abundanti cautela ).").
b. The legislative history
Defendant urges the Court to consider the legislative history of the DTPA, arguing that it supports the existence of an outright ban on personal injury-like cases. Reply 13–14. As discussed above, the Court finds the plain text of Section 17.49(e) unambiguous, and therefore conclusive. See City of Rockwall , 246 S.W.3d at 626. But, given that the legislative history only reinforces the Court's reading that Section 17.49(e) operates to reaffirm the sort of damages otherwise recoverable under the DTPA, a brief discussion of the legislative history is warranted.
Section 17.49(e) was added to the DTPA, together with a number of other amendments, in 1995. See Senate Comm. on Econ. Dev., Bill Analysis, H.B. 668, 74th Leg., Reg. Sess. (Tex. 1995) (the "H.B. 668 Bill Analysis"). Prior to these amendments, Subsection (b) provided for the recovery of "actual damages." See id. Texas courts had construed "actual damages" to permit the recovery—and trebling—of non-economic damages resulting from bodily injury, such as pain and suffering and disfigurement. See Hartford Lloyd's , 2010 WL 3184323, at *8 & n.12 (collecting cases). References to "actual damages" in Subsection (b) and elsewhere were changed to "economic damages" with the 1995 amendments. Id. at 3. The definition of "economic damages" at Section 17.45(11) was also added. Id. at 2.
Thus, at the same time that the legislature added Section 17.49(e) to prohibit the recovery of damages for bodily injury except as provided, inter alia , by Subsection (b), they rewrote Subsection (b) to prohibit the recovery of non-economic damages for bodily injury. With the same legislative act, they also added a definition of economic damages that explicitly excluded damages for pain and suffering, physical impairment, loss of consortium, and the like, but did not exclude damages for lost wages or medical bills. That these amendments were passed concurrently bolsters the Court's textual analysis: Section 17.49(e) serves to underscore, not override, the damages that are otherwise recoverable under the DTPA. Had the legislature wished to ban personal injury claims outright, the inclusion of an exception as provided by the newly amended damages provision defies explanation. Instead, it seems the legislature added Section 17.49(e) to emphasize the shift in scope from actual to economic damages. See Georgetown , 53 S.W.3d at 336.
The commentary provided in the official H.B. 668 Bill Analysis also supports the conclusion that the legislature intended, with the 1995 amendments, to modify the sort of damages recoverable under the DTPA, not to categorically exclude personal injury-like claims. The "Background" section of the Bill Analysis provides, in full: "The Deceptive Trade Practice and Consumer Protection Act (DTPA) was adopted to dissuade big businesses from taking advantage of consumers by offering the consumer triple-damages. Currently, the DTPA has become an avenue for numerous lawsuits, making the application of the DTPA inconsistent with the original intent." H.B. 668 Bill Analysis 2. And, the "Purpose" section reads, in full: "As proposed, C.S.H.B. 668 reforms the procedure and conditions for awarding damages for deceptive trade practices." Id. In other words, the legislature was concerned that the treble damages provision was being abused in excess of its intended deterrent effect and sought to make changes that would limit the circumstances in which damages could be awarded and trebled. See Hartford Lloyd's , 2010 WL 3184323, at *8 (stating that the problem the legislature intended to address with the 1995 amendments was consumers "using the DTPA as a means for recovering treble damages for bodily injury or death.").
Because it shows that the legislature was concerned with limiting the availability of treble damages, the H.B. 668 Bill Analysis supports the Court's holding that Section 17.49(e) and Subsection (b) operate only to bar the recovery of non-economic damages for bodily injury, not to exclude those claims altogether.
c. The opinions of other lower courts
In making an "Erie guess," it is appropriate to look to the decisions of lower state courts for guidance. Gaia Techs. , 175 F.3d at 375 n.11 (citing Shanks v. AlliedSignal , 169 F.3d 988, 993 n.7 (5th Cir. 1999) ). The well-reasoned opinions of other federal district courts may also provide persuasive authority. See, e.g., Buzek v. Pepsi Bottling Grp., Inc. , 501 F. Supp. 2d 876, 885 (S.D. Tex. 2007). In this case, the approaches of lower courts—both state and federal—have been divergent. These antithetical opinions are only persuasive to the extent that they are well-reasoned and reflect the faithful application of Texas's framework for statutory interpretation. See Kueber v. City of San Antonio , 197 F. Supp. 3d 917, 927 (W.D. Tex. 2016) (citing Wright v. Ford Motor Co. , 508 F.3d 263, 269 (5th Cir. 2007) ).
Commentators and scholars, too, have been divided on the question of whether economic damages for lost wages and medical expenses resulting from personal injury are recoverable under the Subsection (b) exception. Compare Joseph R. Ecke, Medical Professionals and the DTPA , 14 J. Consumer & Com. L. 134, 137 (2011) ("It seems obvious froma plain reading of the statute and the legislative intent expressed by its authors that no assessment of damages for bodily injury or death can be supported in a DTPA action, except to the extent that they may be properly characterized as economic or mental anguish damages."), and Richard M. Alderman, The Texas Deceptive Trade Practices Act 2005 Still Alive and Well , 8 J. Tex. Consumer L. 74, 77 (2005) ("[A] consumer may recover any economic damages arising out of an incident involving a personal injury, such as hospital bills or lost income."), with Teel Bivins, John T. Montford, Todd A. Hunter, Rob Junell, Robert L. Duncan, & Brian D. Shannon, The 1995 Revisions to the DTPA: Altering the Landscape 27 Tex. Tech. L. Rev. 1441, 1449 n.37 (1996) ("By eliminating, in general, the ability to recover for personal injuries under the DTPA, it was not the bill drafters' intent to allow traditional components of a personal injury claim [like lost wages and medical expenses] to be reclassified as economic losses.").
At least two other courts have drawn the same conclusion as this Court from a plain-language interpretation of Section 17.49(e) and Subsection (b). See Lea v. Wyeth LLC , No. 1:03-CV-1339, 2011 WL 13192701, at *18–19 (E.D. Tex. Oct. 28, 2011) ; Akin v. Bally Total Fitness Corp. , No. 10-05-00280-CV, 2007 WL 475406, at *3–4 (Tex. App. Feb. 14, 2007). These courts agree that plaintiffs with an otherwise cognizable DTPA claim may recover economic damages for medical expenses or lost wages resulting from a bodily injury, as well as damages for mental anguish, if they would otherwise be entitled to those damages under Subsection (b). Lea , 2011 WL 13192701, at *19 ; Akin , 2007 WL 475406, at *3–4.
The Court finds the Lea and Akin decisions persuasive. In Lea , the plaintiff brought a bevy of claims arising from hormone replacement therapy that allegedly caused her to develop cancer. Lea , 2011 WL 13192701, at *1. The Lea defendants argued that the plaintiff's DTPA claim must be dismissed because the case involved bodily injuries. Id. at *18. The Lea court began its analysis of the Subsection (b) exception by noting that the text of Subsection (b) provides generally for the recovery of economic damages for DTPA violations. Id. at *18. Therefore, the Lea court turned to the definition of economic damages provided elsewhere in the DTPA and concluded that "[t]his definition appears to include reimbursement for medical expenses." Id. at *19.
The Lea court's conclusion that the plaintiff could recover for medical expenses was bolstered by the Texas Supreme Court's recognition of medical expenses as a form of economic damages in other contexts. Id. (quoting Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 763 (Tex. 2003)) ("Traditionally, economic damages are those that compensate an injured party for lost wages, lost earning capacity, and medical expenses."). The Akin court similarly concluded that the plain language of Section 17.49(e) and Subsection (b) permitted the plaintiff, whose father drowned in a swimming pool at a gym, to recover from the gym for lost wages and mental anguish under the DTPA. 2007 WL 475406, at *1, *3–4. While their analyses are somewhat brief, the Akin and Lea opinions are properly focused on the text of the DTPA, in accordance with Texas's statutory interpretation framework. See City of Rockwall , 246 S.W.3d at 626. And, the Court agrees with their plain language interpretation.
One other court has also denied summary judgment on a DTPA claim that sought to recover economic damages and damages for mental anguish resulting from the plaintiff's husband's death while driving a defective vehicle. Smith v. Chrysler Grp., LLC , No. 1:15-CV-218, 2016 WL 7741732, at *1, *4–6 (E.D. Tex. Dec. 1, 2016). While the outcome in Smith accords with the Court's reasoning here, the Smith court engages in an extremely limited analysis of the text and does not endeavor to define the scope of economic damages in the context of claims involving bodily injury. See id. at *4–6. It is therefore of very limited persuasive value.
Several other courts have drawn different conclusions. Some courts have held that personal injury claims are categorically excluded from the scope of the DTPA. See Thalia Huynh v. Wal-Mart Stores Tex., LLC , No. 18-4257, 2019 WL 2931573, at *5 (S.D. Tex. June 17, 2019) ("Plaintiffs' personal injury-like claims cannot be brought under the DTPA."); Drake v. Penske Truck Leasing Co., LP , No. 4:12cv264, 2013 WL 1313697, at *8 (E.D. Tex. Feb. 21, 2013) ("The Texas DTPA specifically exempts from its scope ‘a cause of action for bodily injury or death or for the infliction of mental anguish.’ "); Last v. Quail Valley Country Club, L.P. , No. 01-08-00759-cv, 2010 WL 1253782, at *7 (Tex. App. Mar. 25, 2010) ("The Legislature has expressed its intent that the DTPA does not provide a cause of action for personal injury claims."). These cases contain scant analysis and entirely ignore the plain exception-creating language in the text of Section 17.49(e), referring to Subsections (b) and (h). Because they provide no explanation for their departure from Texas's statutory interpretation framework, the Court does not find these decisions to be persuasive. See City of Rockwall , 246 S.W.3d at 626.
Two other cases provide only limited, nebulous discussions of Section 17.49(e) and the Subsection (b) exception, and the Court does not find them helpful. See Torres v. 2903 Hillcrest Drive, LLC , No. 16-CV-175-DAE, 2016 WL 11588632, at *7–8 (W.D. Tex. July 5, 2016) ; Acker v. Schering-Plough Corp. , No. 1:09CV824, 2010 WL 11531177, at *7–8 (E.D. Tex. Sept. 30, 2010).
At least one court in this district has given the issue detailed consideration and arrived at a different interpretation than this Court. In Roberts v. Zev Techs., Inc. , the court held that Subsection (b) provides only an exception to Section 17.49(e)'s ban on mental anguish claims, and that it does not provide any exception to the ban on personal injury claims. 2015 WL 7454688, at *5–7. Under this interpretation, DTPA plaintiffs cannot recover any damages whatsoever—neither lost wages, medical expenses, nor mental anguish—resulting from a bodily injury, unless they are granted the right to sue by a separate statute under Subsection (h). Id.
The Court finds the Roberts decision and its narrow interpretation unpersuasive for multiple reasons. First, the Roberts court referenced DiGangi v. 24 Hour Fitness USA, Inc. , No. 05-04-01119-CV, 2005 WL 1367945, at *2–3 (Tex. App. June 10, 2005), describing that case as "holding that [a] plaintiff who sustained injuries while using exercise equipment was not entitled to economic damages under the DTPA." Roberts , 2015 WL 7454688, at *6 (citing DiGangi , 2005 WL 1367945, at *2 ).
In DiGangi , the plaintiff sued a gym after the cable on an exercise machine snapped and a bar hit him in the head and mouth, causing bodily injury. 2005 WL 1367945, at *1. Like Plaintiffs' DTPA claim here, the DiGangi plaintiff's DTPA claim was based upon an alleged breach of an implied warranty. See id. at *3. The DiGangi court quoted Section 17.49(e)'s qualified exclusion of claims for bodily injury from the ambit of the DTPA and then explained that under Subsection (b), a consumer can recover economic damages and sometimes also damages for mental anguish. Id. at *2–3.
The court then proceeded to analyze the merits of the plaintiff's implied warranty claim under the DTPA. See id. at *3. "Unlike the implied warranties imposed on certain sales transactions under the Uniform Commercial Code, an implied service warranty arises under the common law when public policy mandates." Id. (citing Melody Home Mfg. Co. v. Barnes , 741 S.W.2d 349, 353 (Tex. 1987) ). Because he did not show that public policy demanded the imposition of an implied warranty in that case, the plaintiff's DTPA claim failed on the merits. Id. By analyzing the merits, the DiGangi court strongly implied that if the plaintiff had a viable implied warranty claim, he would be able to recover economic and possibly mental anguish damages under the DTPA, regardless of the personal injury-like nature of his claim. See id. at *2–3. Thus, DiGangi's reasoning does not support the Roberts court's holding that Subsection (b) provides no exception to a general prohibition on personal injury claims under the DTPA. See Roberts , 2015 WL 7454688, at *6.
Second, the Roberts court's reasoning fails on its own terms. The opinion states that applying Subsection (b)'s general rule for DTPA damages to personal injury claimants would "render Section 17.49(e)'s bar on relief for personal injury meaningless." See id. ("Plaintiff applies this general rule to personal injury claimants and in doing so treats a personal injury claimant no differently than any other DTPA claimant."). Stated differently, because Section 17.49(e) purports to exclude claims for bodily injury—albeit with exceptions—the Roberts court decided that it must do something more than merely reiterate the sort of damages that are generally recoverable under the DTPA. This reasoning is initially appealing: "the canons of interpretation are suspicious of surplusage." United States v. Guillen-Cruz , 853 F.3d 768, 774 (5th Cir. 2017) (quoting Luster v. Collins , 170 F.3d 512, 512 (5th Cir. 1999) ).
Thus, the Roberts court endeavored to find an interpretation that would give some meaning to Section 17.49(e)'s reference to Subsection (b) as an exception, while also giving some independent meaning to Section 17.49(e)'s exclusion of claims for bodily injury from the scope of the DTPA. 2015 WL 7454688, at *6. It did so by finding that Subsection (b)—which specifically provides for the recovery of mental anguish damages for knowing or intentional DTPA violations—only provides an exception to Section 17.49(e)'s exclusion of claims for mental anguish, and not its exclusion of claims for bodily injury:
Notably, Section 17.49(e) bars not only personal injury claims but also claims for the infliction of mental anguish. In this light, the interaction between the two clauses becomes more clear. Section 17.49(e) states that as a general rule the DTPA does not allow claims for the infliction of mental anguish, except for the extent specifically provided for by Section 17.50(b). Section 17.50(b), in turn, creates an exception for when a plaintiff is able to show a violation was committed knowingly or intentionally. Nothing in Section 17.50(b) overrides Section 17.49(e)'s unambiguous declaration that the DTPA does not create a cause of action for personal injury claims.
Id.
But the problem with this logic is that Section 17.49(e) is still rendered "meaningless"—or redundant—under the Roberts court's preferred interpretation. That is, because Subsection (b) already provides that mental anguish damages are only recoverable on a showing of knowing or intentional conduct, there is no need to include Section 17.49(e) to say that mental anguish damages are not recoverable, except as provided by Subsection (b). Subsection (b) does that work itself. Under either interpretation—the one adopted or the one disavowed by the Roberts court—the interplay of Section 17.49(e) and Subsection (b) undoubtedly results in some redundancy. The Roberts court does not provide a convincing explanation for permitting a redundant or "meaningless" interpretation of the interaction between Section 17.49(e) and Subsection (b) with respect to the exclusion of claims for mental anguish, but not the exclusion of claims for bodily injury. The Roberts court's reason for limiting the Subsection (b) exception to only non-injury mental anguish claims is logically inconsistent and thus unpersuasive.
Moreover, the Roberts court's resort to canons of construction that caution against an interpretation that renders portions of a statute "meaningless" or redundant is unsupported by the plain text of Section 17.49(e). Under Texas law, "[o]nly when [the] words [of a statute] are ambiguous do we ‘resort to rules of construction or extrinsic aids.’ " Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009) (quoting In re Estate of Nash , 220 S.W.3d 914, 917 (Tex. 2007) ). As discussed previously, the plain text of Section 17.49(e) does not refer only to the portion of Subsection (b) that discusses mental anguish damages; it refers generally to "Subsection (b)." Tex. Bus. & Com. Code § 17.49(e). And, the plain text applies the Subsection (b) exception to both the exclusion of claims for bodily injury or death and the exclusion of claims for the infliction of mental anguish. Id. ("Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish."). Resorting to canons of construction to rewrite Section 17.49(e) and apply the Subsection (b) exception to only the exclusion of claims for mental anguish is not in line with the Texas Supreme Court's guidance on statutory interpretation. See City of Rockwall , 246 S.W.3d at 629 (quoting Jones v. Del Andersen & Assocs. , 539 S.W.2d 348, 350 (Tex. 1976) ) ("[The] standard for construing statutes is not to measure them for logic.... [or] ‘read into the statute words which are not there’ "). Indeed, the legislature may have been redundant on purpose. See Georgetown , 53 S.W.3d at 336. As discussed above, the Texas Supreme Court has recognized that the state legislature sometimes "repeat[s] itself out of an abundance of caution, for emphasis, or both." Id.
In sum, Section 17.49(e) highlights the circumstances in which damages arising from bodily injury and mental anguish are recoverable under the DTPA. Under Subsection (h), damages for bodily injury or mental anguish may be recovered to the full extent authorized by the relevant tie-in statute. And, under Subsection (b), only economic damages, such as medical expenses, the cost of repair and replacement, and lost wages are ordinarily recoverable. Upon a showing of knowing or intentional misconduct, damages for mental anguish may also be claimed. However, the lion's share of damages in a typical personal injury action—pain and suffering, loss of consortium, disfigurement, etc.—are not recoverable. See Lea , 2011 WL 13192701, at *19 ; Akin , 2007 WL 475406, at *3–4.
3. The independent intermediary doctrine
Next, Defendant argues that application of the independent intermediary doctrine entitles it to summary judgment on Plaintiffs' claims for strict liability failure to warn, implied warranty, negligent misrepresentation, and violation of the DTPA. Reply 6–12. Plaintiffs have not moved to file a sur-reply or otherwise responded to these arguments, which were raised for the first time in the Reply. Even so, the Court exercises its discretion to consider them. See United States v. Davis , 602 F.3d 643, 648 n.7 (5th Cir. 2010).
a. Failure to warn
"Generally, a manufacturer is required to provide an adequate warning to the end users of its product if it knows or should know of any potential harm that may result from the use of its product." Centocor, Inc. v. Hamilton , 372 S.W.3d 140, 153–54 (Tex. 2012). However, in certain cases, including cases involving surgically implanted medical devices, the "learned intermediary" doctrine requires that the warning be provided to the doctor who implants the device, rather than the end user—the patient. Porterfield , 183 F.3d at 467–68 (citing Bean v. Baxter Healthcare Corp. , 965 S.W.2d 656, 663 (Tex. App. 1998) ). "The product manufacturer relies on the physician to pass on its warnings." Id. at 468.
"In order to recover for a failure to warn under the learned intermediary doctrine, a plaintiff must show: (1) the warning was defective; and (2) the failure to warn was a producing cause of the plaintiff's condition or injury." Id. (citing Stewart v. Janssen Pharmaceutica, Inc. , 780 S.W.2d 910, 911 (Tex. App. 1989) ). The producing cause issue is ordinarily a question for the finder of fact. DePuy Orthopaedics , 888 F.3d at 774. However, "[w]hen the prescribing physician is aware of the product's risks and decides to use it anyway, any inadequacy [in] the product's warning, as a matter of law, is not the producing cause of the patient's injuries." Id. (quoting Centocor , 372 S.W.3d at 170 ); accord Ebel v. Eli Lilly & Co. , 321 F. App'x 350, 356 (5th Cir. 2009).
Moreover, "[e]ven if the physician is not aware of a risk, ‘the plaintiff must show that a proper warning would have changed the decision of the treating physician, i.e., that but for the inadequate warning, the treating physician would have not used or prescribed the product.’ " Ackermann v. Wyeth Pharm. , 526 F.3d 203, 208 (5th Cir. 2008) (quoting Dyer v. Danek Med., Inc. , 115 F. Supp. 2d 732, 741 (N.D. Tex. 2000) ); accord Ebel , 321 F. App'x at 356.
Here, Defendant argues that the record demonstrates beyond any genuine dispute that Dr. Lacy was aware of the risks associated with the Mesh. Defendant also argues that, in any event, Dr. Lacy did not rely on Defendant's warnings in order to assess the Mesh and decide whether to recommend it for Ms. Perez. In her deposition, Dr. Lacy stated that she was aware of the risk of every complication that Ms. Perez complains of in this lawsuit prior to implanting Ms. Perez with the Mesh. Dep. of Linda Lacy 16:15–25, 18:5–7, 19:3–8. She further states that she did not rely on the Instructions for Use—which contain the allegedly defective warnings—in order to inform herself of the risks or decide whether to recommend the Mesh for Ms. Perez. Id. at 20:14–24, 21:11–18. Plaintiffs offer no evidence to the contrary.
This evidence demonstrates that Dr. Lacy was "aware of the product's risks and decide[d] to use it anyway." See Centocor , 372 S.W.3d at 170. Furthermore, because Dr. Lacy did not rely upon the Instructions for Use in order to inform herself of the risks associated with the Mesh, Plaintiffs cannot show that "a proper warning would have changed [Dr. Lacy's] decision" to recommend it. See Ackermann , 526 F.3d at 208. Both of these reasons independently establish that Defendant's failure to warn was not a producing cause of Ms. Perez's injury. See Centocor , 372 S.W.3d at 170 ; Ackermann , 526 F.3d at 208. Therefore, Defendant's motion for summary judgment is granted with respect to Plaintiffs' failure to warn claim. See Porterfield , 183 F.3d at 468.
b. Implied warranty, DTPA, and negligent misrepresentation
Defendant next argues that the independent intermediary doctrine bars not only Plaintiffs' failure to warn claim, but also their claims for breach of implied warranty, negligent misrepresentation, and violation of the DTPA. Reply 11–12.
Texas law applies the independent intermediary doctrine not only to strict liability failure to warn claims, but also to any claim predicated on the alleged inadequacy of a product's warning. See Centocor , 372 S.W.3d at 169. As long as they are based in allegations of a defective warning, claims for breach of implied warranty, negligent misrepresentation, and violations of the DTPA are subject to the independent intermediary doctrine. See In re Norplant Contraceptive Prods. Litig. (Norplant ), 165 F.3d 374, 377–78 (5th Cir. 1999) (DTPA); Hurley v. Lederle Labs. Div. of American Cyanamid Co. , 863 F.2d 1173, 1175, 1180 (5th Cir. 1988) (implied warranty); Centocor , 372 S.W.3d at 169 & n.30 (negligent misrepresentation); Rolen v. Burroughs Wellcome Co. , 856 S.W.2d 607, 608–10 (Tex. App. 1993) (implied warranty).
Plaintiffs' negligent misrepresentation, implied warranty, and DTPA claims are all grounded in allegations that Defendant provided inadequate warnings about the risks involved with using the Mesh. See Long Form Compl. ¶¶ 87–93 (alleging breach of implied warranty of merchantability because the Mesh was dangerous and therefore not suited for its "intended use as warranted"), ¶ 123 ("Defendant[ ] negligently misrepresented the [Mesh's] high risk of unreasonable, dangerous, adverse side effects."), ¶ 143 (alleging, in connection with DTPA claim, that Defendant knowingly and falsely represented that the Mesh was "fit to be used for the purpose for which [it was] intended, when in fact [it was] defective and dangerous"). Therefore, the independent intermediary doctrine applies to these claims. See Norplant , 165 F.3d at 377–78 ; Hurley , 863 F.2d at 1175, 1180 ; Centocor , 372 S.W.3d at 169 & n.30. And the doctrine applies in the same manner in which it applies to Plaintiffs' failure to warn claim. That is, because Dr. Lacy did not rely on the warnings provided by Defendant in order to inform herself of the risks associated with the Mesh, and because she was aware of all relevant risks and decided to prescribe the Mesh anyway, Plaintiffs cannot demonstrate causation as a matter of law. See Centocor , 372 S.W.3d at 170 ; Ackermann , 526 F.3d at 208. Therefore, Defendant is entitled to summary judgment on Plaintiffs' negligent misrepresentation, DTPA, and implied warranty claims as well.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF No. 51, is GRANTED in part and DENIED in part. The Motion is granted as to Plaintiffs' claims for strict liability failure to warn, violation of the DTPA, breach of implied warranty, and negligent misrepresentation. The Motion is also granted as to the claims that Plaintiffs are no longer pursuing—fraudulent concealment, breach of express warranty, negligent infliction of emotional distress, constructive fraud, strict liability manufacturing defect, and unjust enrichment. The Motion is denied as to all other claims identified in Plaintiffs' Short Form Complaint; namely, the claims for strict liability design defect, strict liability defective product, negligence, gross negligence, punitive damages, and loss of consortium.