Every now and then we come across something new and interesting that, frankly, we hadn’t thought of ourselves.  That’s how we felt when we read the recent opinion in Boudreaux v. Corium International, Inc., C.A. No. :12-cv-2644-M, slip op. (N.D. Tex. May 7, 2013).   We mentioned the same sort of thing a few years ago in connection with a case from Tennessee that was won on the “useful life” language of that states’ statute of repose. We stated that the case “shows the need to pay close attention to, and do meticulous research into, local state law.”

Boudreaux is another example – and once again, some sharp-eyed associate out there deserves a gold star (and a bonus).

Boudreaux involves a fentanyl patch, which is used for pain relief. There have been a number of prior cases – some egregious – where plaintiffs have alleged that such patches malfunctioned and led to fatal overdoses.   Boudreaux is another such case.

And therein lies the rub.

Among the claims that the decedent’s representatives made was a consumer fraud claim under the Texas statute (known as the “DTPA”). We’re not sure why that claim was made, since we’re under the impression that the DTPA, after being misused by plaintiffs in product liability litigation (and elsewhere), for quite a while, was amended a few years back to ban recoveries based on personal injury.   But be that as it may, the DTPA claim was brought in Boudreaux.

The defendant argued, and the court in Boudreaux agreed, that the DTPA claim failed because – get this – claims under this statute do not survive the death of the consumer.
Consumer fraud claims?  Abatement on death?   We haven’t heard that one before.

But apparently it’s a topic that has some currency in the Lone Star State.   According to Boudreaux, “[t]he Texas Supreme Court has not provided definitive guidance on this issue, and Texas appellate courts are split” 3-2 in favor of abatement.  Slip op. at 3 (collecting cases).   Boudreaux went with the majority on this issue and dismissed the DTPA claim. Here’s the reasoning:

• The DTPA “does not explicitly provide for the survivability of a consumer’s cause of action.”  Slip op. at 4.

• Where a statute is silent, under the common law “actions primarily affecting property and property rights survived the death of the aggrieved party whereas actions asserting purely personal rights did not.”   Id.

• Because they are “punitive” a claim for exemplary damages is considered a “personal right” and does not survive death.   Id.

• The DTPA, since it provides for treble damages, is also punitive in nature.   Id.

• Claims which the law does not allow to be assigned to third parties are also personal in nature.   Id. at 4-5.

• Under Texas law, DTPA claims may not be assigned.   Id. at 5.

• Therefore, DTPA claims are personal in nature and thus abate upon the death of the aggrieved consumer.   Id. at 5.

Bingo. Because the person who used the fentanyl patch in Boudreaux had died, therefore the claim had abated and could not be brought:

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.

Boudreaux, slip op. at 5.   Motion to dismiss granted.

Here’s the larger point.  None of us on the blog are Texas lawyers, and we thus we would not have known even to look for this article on our own.  Listen to your local counsel – that’s what you hired them for.   Also, when you’re unfamiliar with a state’s law, let a bright associate do some poking around.   That’s what you hired them for.

Here’s the even larger point.  We also don’t know whether other states follow the same logic as the Texas courts do with the DTPA.   Perhaps other states’ consumer fraud statutes speak explicitly to survivability (although we suspect that’s rare).   Perhaps other states’ statutes don’t include a “punitive” treble damages provision (although we think most do). Perhaps other states allow assignment of consumer fraud statutory causes of action (we have no gut reaction to that).   What we’re trying to say is that Boudreaux suggests that in any case where the product user is deceased, if there’s a consumer fraud claim pleaded, it would be a good idea to see if abatement is a viable defense.  If it is, then it’s a home run on that claim.
One more thing to look at – one more defense to plead in appropriate cases.