Happy San Jacinto Day. On April 21, 1836, Texans won the battle of San Jacinto, the last battle of the Texas revolution, in which Texas secured its independence from Mexico. In the past 185 years, Texans have never ceased showing an independent streak.

That is true for Texas product liability law. It is uncommonly sensible. Put another way, drug and device defendants often get a fair shake under Texas law. There is a reason why all those Texas plaintiff lawyers spend so much time in Philadelphia. It’s not because they love Cheesesteaks or the Eagles.

Moncibaiz v. Pfizer Inc., 2021 U.S. Dist. LEXIS 62213 (S.D. Dist. March 31, 2021), is an example. The plaintiff alleged that a hormone drug gave her breast cancer. The label warned of that precise risk, but the plaintiff said the warning was not as complete as it should have been. She filed her complaint, which was premised on failure to warn theories, in state court.

The defendant removed to federal court, and moved to dismiss because a Texas statute sets up a rebuttable presumption that FDA approved labels furnish adequate warnings. (Just last week we blogged about a Delaware court’s application of this Texas statutory presumption of adequacy). The plaintiff then amended her complaint to allege claims for design defect, negligence, and breach of the implied warranty of merchantability.

The defendant again moved to dismiss, arguing that the recharacterization of the claims did not change the fact they were really about a failure to warn, and they were still precluded by the Texas presumption. The plaintiff did not even try to fit within any of the five possible rebuttals specifically outlined by the statute. Thus, the entire issue was whether the plaintiff’s amended complaint hinged on some sort of warning defect.

It did. The Moncibaiz court held that the claims formally pleaded as design defect, negligence, and breach of warranty were “really just dressed up failure to warn claims”.

The design defect claim mimicked the proper structure of such a claim, but the actual defect alleged was the failure to inform the physician of risks and safer alternatives. The court treats us to a sane explication of learned intermediary and comment k, concluding that “the presumption against liability applies to the design defect analysis under comment k, which recognizes that some products (like prescription drugs) simply can’t be produced to eliminate all risk of serious harm… And under comment k, Defendants’ only duty in this regard is to manufacture [the drug] under the approved process and to supply it with the approved directions and warnings”. Adios, design defect claim.

The negligence claim also ran into these same doctrinal problems. The plaintiff did not allege that the product was improperly prepared. And so their only avenue to prove unreasonable danger is to prove inadequate warnings”. Again, the learned intermediary rule applies. So does the Texas presumption of adequate warning. The negligence claim has no chance – kind of like the Dallas Cowboys.

The easiest claim for the Moncibaiz court to dismiss was the implied warranty of merchantability. The plaintiff could not support the warranty claim of the drug was not unreasonably dangerous, and she could not prove the drug was unreasonably dangerous “without arguing that it’s warnings are inadequate”. Therefore, [i]t follows that the reach of warranty claim is in substance a failure to warn claim.” It is all hat and no cattle. The presumption of warning adequacy and the learned intermediary again ride in to rescue the defendant. Like the design defect and negligence claims, the warranty claim was chewed up, spit out, and stepped on. Don’t mess with Texas courts.

Thank you, Texas. You are a unique, beautiful state. And we’d say that even if the bluebonnets weren’t currently blooming.