Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—S.D. Tex.: Lack of jurisdiction argument fails, innocent seller rule applies, (May 26, 2026)

By Susan L. Smith, JD, MA

A couple failed to provide sufficient evidence that the court lacked jurisdiction over a tampon manufacturer located in Israel to sustain their strict liability claims against non-manufacturing sellers under the exception to the Texas innocent seller rule.

A federal district court in Texas granted summary judgment to sellers of tampons after determining that a married couple who brought strict product liability claims for defective design against the sellers failed to prove that the exception to the Texas innocent seller rule applied in their case. The wife purchased Equate brand tampons designed and manufactured by Albaad Massuot Yitzhak, Ltd. (Albaad Massuot) at a Walmart store. After using several tampons without issue, she had an issue removing a tampon and, subsequently, was hospitalized and diagnosed with Staphylococcal Toxic Shock System. The couple filed their lawsuit in Texas state court, bringing several strict liability claims as well as a separate claim for loss of consortium brought by the husband against the sellers, Walmart and Albaad USA, Inc., and the manufacturer Albaad Massuot. Walmart removed the case to the district court on the basis of diversity jurisdiction. Walmart and Albaad USA moved for summary judgment, asserting that they were protected under Texas’ innocent seller rule. The court determined that the couple failed to provide evidence to create a genuine dispute of material fact that Albaad Massuot was not subject to the court’s jurisdiction, and they did not meet their burden to prove that the exception to the innocent seller rule applied to this case. Thus, the court granted summary judgment to Walmart and Albaad USA and dismissed the claims against Albaad Massuot without prejudice for failure to serve (Simien v. Walmart, Inc., No. 4:25-CV-00352 (S.D. Tex. May 15, 2026)).

Background. The wife experienced a problem removing a tampon when she was pulling the tampon out with the string. The string snapped and came off the tampon. Without the string, she used her fingers to pull the tampon out. Soon afterward she developed a fever, sore throat, and body aches. Although she tested negative for common viruses at a local emergency department, her condition worsened and she was sent to the hospital by the nurses at her primary care physician’s office where she was placed in an intensive care unit and diagnosed with Staphylococcal Toxic Shock Syndrome likely caused by her recent tampon use.

Court’s analysis. The court noted that Section 82.003 of the Texas Civil Practice and Remedies Code provides the general rule that a seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves at least one of seven enumerated exceptions. One of those exceptions is that a non-manufacturing seller may be held liable if the manufacturer of the product is not subject to the jurisdiction of the court. Thus, claimants can attempt to prove that the manufacturer’s contact with the state is insufficient for a court to exercise personal jurisdiction over it. Section 82.003(c) establishes a conclusive presumption that the manufacturer is not subject to jurisdiction if, and only if, after service through the secretary of state, the manufacturer fails to answer or otherwise make an appearance.

The court pointed out that the couple never served Albaad Massuot with the lawsuit contending that Walmart and Albaad USA were liable as downstream sellers because this court lacked jurisdiction over Albaad Massuot, which is located in Israel. The court explained that a nonresident manufacturer, like Albaad Massuot, is subject to the jurisdiction of a Texas court if it can be properly served and has established minimum contacts with Texas. The court stated that the couple must prove that Albaad Massuot lacked sufficient contacts with the court to exercise jurisdiction over it.

The couple requested that the court take judicial notice of statements regarding the filings in an unrelated case in a different jurisdiction in which Albaad Massuot filed a motion for lack of personal jurisdiction in the United States Bankruptcy Court for the District of Arizona. The court stated that it could not take judicial notice of adjudicative facts subject to reasonable dispute and did not accept the representations related to Albaad Massuot’s contacts with the U.S. as admissible summary judgment evidence. Moreover, the Bankruptcy Court held that there was a sufficient initial showing that the court could exercise specific personal jurisdiction over Albaad Massuot. Specifically, the court did not accept acts allegedly presented before a separate court in an unrelated case as admissible summary judgment evidence, especially since the Arizona court found, based on the facts at the motion to dismiss stage, that jurisdiction did exist. The court concluded that the couple had no competent summary judgment evidence to create a genuine dispute of material fact that Albaad Massuot was not subject to this court's jurisdiction, and they did not meet their burden to prove that the exception to the innocent seller rule applied to this case.

The case is No. 4:25-CV-00352.

Judge: Hanen, A.

Attorneys: Leroy Brenardo Scott (Scott Law PLLC) for Shelley Simien and Jonathon Simien. Bryce Eric Buchmann (Bush Ramirez, PLLC) for Walmart, Inc. Brendan Patrick Doherty (Laborde Siegel, LLC) for Albaad USA, Inc. and Albaad Massuot Yitzhak, Ltd.

Companies: Walmart, Inc.; Albaad USA, Inc.; Albaad Massuot Yitzhak, Ltd.

Cases: CaseDecisions GeneralNews PLDeviceNews TexasNews