In fentanyl patch wrongful death lawsuit, Texas federal court says statutory consumer protection claims do not survive death of consumer

by Jim Orr

Lana Jo Boudreaux took fentanyl transdermal system patches for pain relief related to blisters resulting from treatment for salivary gland cancer. These patches were manufactured by Corium and distributed by Actavis. On August 4, 2010, after using a patch, Mrs. Boudreaux went to sleep and never woke up. Mrs. Boudreaux suffered hypoxic damage to her brain and died from complications.

The representatives and heirs of her estate filed a lawsuit alleging the cause of her death was a defective fentanyl transdermal patch, and asserted claims of strict product liability, negligence, violations of the implied warranty of merchantability, and violations of the Texas Deceptive Trade Practices Act (the “DTPA”).

The Defendants filed a motion to dismiss the DTPA claims, arguing that the Plaintiffs lacked standing to assert DTPA claims because such claims do not survive the death of the consumer. The federal district noted that the Texas Supreme Court has not provided definitive guidance on this issue, and Texas appellate courts are split.

The DTPA was enacted by the Texas legislature as an amalgam of common law fraud, contracts, and tort claims. The statute does not explicitly provide for the survivability of a consumer’s cause of action. Where a statute fails specifically to address the survivability of a cause of action, the common law provides guidance. The basic rule under the common law is that actions primarily affecting property and property rights survive the death of the aggrieved party whereas actions asserting purely personal rights do not. The court determined that:

The right to recover punitive damages is a personal right and an award of treble damages and attorney’s fees, available under the DTPA, is clearly punitive in nature. Id. Based on that analysis, an action under the DTPA involves personal rights that, under the common law, do not survive the death of the consumer.

Boudreaux v. Corium Intern., Inc., No. 3:12–cv–2644–M (N.D.Tex. May 07, 2013).

The court also found that the same conclusion would be reached by an assignability analysis. Texas courts have explained that where a statute fails to specify whether claims are survivable, ‘the test most commonly used to determine survivability is whether or not the cause of action may be assigned.’” In PPG Indus., Inc. v. JMB/Houston Centers Partners Limited Partnership, the Texas Supreme Court resolved a split in the Texas appellate courts and held that DTPA claims are not assignable. 146 S.W.3d 79, 92 (Tex.2004). In that case, the Texas Supreme Court had reasoned that the DTPA’s goal is to encourage the filing of consumers’ own complaints, an aim which would be defeated if non-consumers were allowed to file such claims. Id. at 84–85. The Court also held that “the personal and punitive aspects of DTPA claims cannot be squared with a rule allowing them to be assigned as if they were mere property.” Id. at 82. The district court concluded:

In light of the Texas Supreme Court’s holding that DTPA claims generally cannot be assigned, in part because these claims are personal and punitive in nature, it follows that such claims do not survive the death of the consumer. This Court is of the opinion that the Texas Supreme Court, if faced with this issue, would find that a consumer’s cause of action under the DTPA does not survive the death of the consumer and cannot be brought by a representative of the consumer’s estate, in a representative capacity or in an individual capacity, based on the consumer status of the decedent.

Thus “any claims that Mrs. Boudreaux might have asserted against defendants under the DTPA were extinguished upon her death.”

Even though the DTPA claims were dismissed, the estate’s other claims alleging the cause of her death was a defective fentanyl transdermal patch—strict product liability, negligence, violations of the implied warranty of merchantability—were not dismissed.

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