Phillips v. Ethicon

A surgical stapler, a leak at the staple line, a death nine months later, and a case that ended on a letter that was never sent.

The rule

Texas adopted the Uniform Commercial Code’s notice rule for warranties: once goods have been accepted, “the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy” (Tex. Bus. & Com. Code § 2.607(c)(1)). The Fifth Circuit reads that to mean what it says. In its words, “[t]he notification requirement must be satisfied before litigation,” and “[t]he burden of alleging and proving proper notice is on the buyer” (quoting McKay v. Novartis Pharmaceuticals Corp., 751 F.3d 694, 705 and 706 (5th Cir. 2014)). A district court’s refusal to let a plaintiff amend is reviewed for abuse of discretion, and whether a dismissal is with or without prejudice is likewise the district court’s call.

The facts

In September 2021 a man had colon surgery at a Texas hospital, and the surgeon used an Ethicon stapler and staples to join the bowel. A week later he was back in the hospital with the contents of the bowel leaking into his abdomen through a two-centimeter defect in the staple line. He developed sepsis and multisystem organ dysfunction, and he died in June 2022. His widow and children sued in federal court in the Western District of Texas, first naming Johnson & Johnson, Ethicon, Inc. and Ethicon Endo-Surgery for a design defect and for breach of two implied warranties, then amending to sue Ethicon Endo-Surgery alone on the two warranty claims, merchantability and fitness for a particular purpose. The design-defect claim was dropped. The district court dismissed the case with prejudice. The family then filed a second suit in state court, against Ethicon Endo-Surgery again, two Johnson & Johnson entities and the hospital; the defendants removed it to federal court, which dismissed it with prejudice on res judicata and collateral estoppel.

The holding

Affirmed, twice. The family admitted it had never sent presuit notice to the defendant it named, and the panel held that the admission alone defeated the warranty claims. On amendment, the plaintiffs “only requested permission to amend their complaint in a single sentence at the end of their opposition” to the motion to dismiss, and they “did not provide any indication of valid grounds for amendment”; on appeal they conceded that no amendment could cure the missing notice. The with-prejudice dismissal stood. Because the family did not brief the preclusion rulings in the second case, it forfeited any challenge to them, and the second suit stayed dismissed. The opinion’s last paragraph opens with a sentence courts rarely write: “Our sympathies are with Plaintiffs, who have suffered a horrible loss.”

Why it matters

A product-death case in Texas usually carries two theories side by side. The strict-liability claim, the one that asks whether there was a safer alternative design under Section 82.005, needs no letter. The warranty claims do, to the seller being sued, which in practice means every seller who might be, before the petition is filed, and the plaintiff has to plead that it was sent. In Phillips the family had dropped the design-defect claim in its amended complaint, which left only the warranty claims, and those needed the letter. The court held the line even where the loss was as plain as this one. The opinion also says something about how to ask for a second chance. The panel faulted a request that gave the court no valid reason and no facts that would cure the defect, and cited its older rule that a curative request tacked onto the end of a response is not enough; the way to ask is a motion of its own that spells out the cure, with the proposed pleading attached, which the Western District’s local rules require in any event. And it says that a federal dismissal with prejudice does not stay in federal court: it ended the second suit too, the one the family filed in state court and the defendants removed, and the family never contested the preclusion ruling on its merits. For the questions a defective device raises about the device itself, Crashworthiness covers how that proof is kept, and Limitations covers the other clocks that run from the day of the injury.

Phillips v. Ethicon Endo-Surgery, Inc., Nos. 25-50116 and 25-50308 (5th Cir. Oct. 2, 2026) (Higginson, J., joined by Smith and Wiener, JJ.), applying Tex. Bus. & Com. Code § 2.607(c)(1) and McKay v. Novartis Pharmaceuticals Corp., 751 F.3d 694, 705 to 706 (5th Cir. 2014). Read from the opinion. Analyzed here for the lawyering, not the politics. This is general information, not legal advice.