By contrast, courts applying Section 82.003(a)(5) in plaintiffs' favor tend to do so only when the seller made a specific representation about a product's capabilities or quality. See, e.g., JSC Nizhnedneprovsky Tube Rolling Plant v. United Res., LP, No. 13-15-00151-CV, 2016 WL 8921926, at *9 (Tex. App.—Corpus Christi Dec. 21, 2016, no pet.) (applying Section 82.003(a)(5) where a seller represented that a pipe was of a specific grade); Helm v. Moog Inc., No. 4:11-CV-109-Y, 2011 WL 3176439, at *4 (N.D. Tex. July 27, 2011) (applying Section 82.003(a)(5) where a seller represented that a pain pump was safe for use delivering medication to a patient's shoulder). This Court therefore interprets Section 82.003(a)(5) to exclude generic positive statements about a product, such as statements that the product is "good" or "safe."
Some judges in this district have applied the federal pleading standard in their analysis but have done so without discussing or referencing the difference between Texas and federal pleading requirements. See Helm v. Moog Inc., No. 4:11-cv-109-Y, 2011 WL 3176439, at *2 (N.D. Tex. July 27, 2011); Mugweni v. Wachovia Corp., No. 3:08-cv-1889-G-BF, 2011 WL 2441255, at *2 (N.D. Tex. Apr. 19, 2011), rec. adopted, 2011 WL 2441838 (N.D. Tex. June 17, 2011); Marten v. Winover, No. 3:11-cv-1164-K, 2011 WL 4485966, at *2 (N.D. Tex. Sept. 27, 2011). On the other hand, unpublished decisions by the Fifth Circuit, along with some decisions by judges in this district, have applied the Texas "fair notice" pleading standard in the improper joinder analysis.
Some judges in this district have applied the federal pleading standard in their analysis but have done so without discussing or referencing the difference between Texas and federal pleading requirements. See Helm v. Moog Inc., No. 4:11-cv-109-Y, 2011 WL 3176439, at *2 (N.D. Tex. July 27, 2011); Mugweni v. Wachovia Corp., No. 3:08-cv-1889-G-BF, 2011 WL 2441255, at *2 (N.D. Tex. Apr. 19, 2011), rec. adopted, 2011 WL 2441838 (N.D. Tex. June 17, 2011); Marten v. Winover, No. 3:11-cv-1164-K, 2011 WL 4485966, at *2 (N.D. Tex. Sept. 27, 2011). On the other hand, the Fifth Circuit, in an unpublished decision, along with some decisions by judges in this district, have applied the Texas "fair notice" pleading standard in the improper joinder analysis.
Cf. Helm v. Moog Inc., Action No. 4:11–CV–109–Y, 2011 WL 3176439, at *4 (N.D.Tex. July 27, 2011) (holding that defendants' alleged representation that the product was safe to use in the shoulder joint to deliver continuous pain medication stated a factual basis for an actionable claim under 82.003(a)(5)); Pham v. Toyota Motor Corp., Civil Action No. 3:06–CV–576, 2007 WL 43902, at *2 (S.D.Tex. Jan. 4, 2007) (stating that the allegation that a salesperson “advocated use of the 4–Runner in ways likely to cause it to roll over” stated a factual basis for an actionable claim under 82.003(a)(5)). Accordingly, Plaintiffs do not have a probable right of recovery against Trinity Auto Sales, the proposed new defendant, under Section 82.003(a)(5).
Rather, it was Plaintiff. The Court does not find that Plaintiff's claim is necessarily foreclosed by this fact—and finds a similar theory used in Helm v. Moog, 4:11-CV-109-Y, 2011 WL 3176439 (N.D. Tex. July 27, 2011). Plaintiff sought damages after an unsuccessful surgery.
The Fifth Circuit has not directly addressed the issue in a published opinion, and this District is divided, with some of its judges applying the federal pleading standard in this analysis. Helm v. Moog Inc., No. 4:11-cv-109-Y, 2011 WL 3176439, at *2 (N.D. Tex. July 27, 2011) (Means, J.) (using the federal pleading standard in the improper joinder analysis); Mugweni v. Wachovia Corp., No. 3:08-cv-1889-G-BF, 2011 WL 2441255, at *2 (N.D. Tex. April 19, 2011) (Stickney, Mag. J.) (same), accepted by 2011 WL 2441838 (N.D. Tex. June 17, 2011) (Fish, J.); Sahinkaya v. Travelers Indem. Co., No. 3:10-cv-0717-B, 2010 WL 3119423, at *3 nn.3-4 (N.D. Tex. Aug. 5, 2010) (Boyle, J.) (same). On the other hand, the Fifth Circuit, in an unpublished decision, along with some judges in this District, have applied the Texas "fair notice" pleading standard in the improper joinder analysis.