Kimberly Meador v. Apple, Incorporated , 911 F.3d 260 ( 2018 )


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  •      Case: 17-40968   Document: 00514766401     Page: 1   Date Filed: 12/18/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT     United States Court of Appeals
    Fifth Circuit
    FILED
    December 18, 2018
    No. 17-40968                        Lyle W. Cayce
    Clerk
    KIMBERLY MEADOR, agent of Individually, And as Guardian for L.M. a
    minor; AMOS STANDARD, on behalf of Individually, and on behalf of the
    Estate of Shari Standard, deceased; RUSSELL JONES, on behalf of
    Individually, and on behalf of the Estate of Sandra Jones, deceased,
    Plaintiffs - Appellants
    v.
    APPLE, INCORPORATED,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit
    Judges.
    STEPHEN A. HIGGINSON, Circuit Judge:
    This case asks us to decide whether, under Texas law, a driver’s
    neurobiological response to a smartphone notification can be a cause in fact of
    a car crash. Because answering in the affirmative would entail an
    impermissible innovation or extension of state law, we answer in the negative.
    Accordingly, we AFFIRM.
    Case: 17-40968         Document: 00514766401      Page: 2   Date Filed: 12/18/2018
    No. 17-40968
    I
    According to Appellants’ amended complaint, Ashley Kubiak was driving
    her pick-up truck on April 30, 2013 when she received a text message on her
    iPhone 5. Appellants allege that Kubiak looked down to read the text, after
    which she turned her attention back to the road. At that point it was too late
    to avoid colliding with a vehicle carrying two adults and a child. The adults
    died, while the child survived but was rendered paraplegic. Kubiak was
    convicted of two counts of criminally negligent homicide.
    In 2008, Apple had secured a patent covering “[l]ock-out mechanisms for
    driver handheld computing devices.” 1 The patent included the following
    language:
    Texting while driving has become a major concern of parents, law
    enforcement, and the general public. An April 2006 study found
    that 80 percent of auto accidents are caused by distractions such
    as applying makeup, eating, and text messaging on handheld
    computing devices (texting). According to the Liberty Mutual
    Research Institute for Safety and Students Against Destruct[ive]
    Decisions, teens report that texting is their number one distraction
    while driving. Teens understand that texting while driving is
    dangerous, but this is often not enough motivation to end the
    practice.
    New laws are being written to make texting illegal while driving.
    However, law enforcement officials report that their ability to
    catch offenders is limited because the texting device can be used
    out of sight (e.g., on the driver’s lap), thus making texting while
    driving even more dangerous. Texting while driving has become so
    widespread it is doubtful that law enforcement will have any
    significant effect on stopping the practice. 2
    Apple did not implement any version of a “lock-out mechanism” on the iPhone
    5, which Kubiak was using at the time of the accident.
    1   
    U.S. Patent No. 8,706,143
    .
    2   
    Id.
    2
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    Representatives of the victims of Kubiak’s accident sued Apple in federal
    court. They asserted claims under Texas common law for general negligence
    and strict products liability. They alleged that the accident was caused by
    Apple’s failure to implement the patent on the iPhone 5 and by Apple’s failure
    to warn iPhone 5 users about the risks of distracted driving. In particular, the
    plaintiffs alleged that receipt of a text message triggers in the recipient “an
    unconscious and automatic, neurobiological compulsion to engage in texting
    behavior.” They supported this allegation with various studies and reports,
    including a proposed expert report. The plaintiffs’ complaint also extensively
    analyzed the hazards of distracted driving.
    Apple moved to dismiss the complaint for failure to state a claim, 3 and a
    magistrate judge issued a report and recommendation that the motion be
    granted. Following objections, supplemental briefing, and a thorough hearing,
    the district court issued an opinion granting the motion to dismiss, denying the
    plaintiffs’ motion for leave to amend, and dismissing the complaint with
    prejudice. This appeal followed.
    II
    We review the grant of a motion to dismiss under Rule 12(b)(6) de novo,
    “accepting all well-pleaded facts as true and viewing those facts in the light
    most favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 
    540 F.3d 333
    ,
    338 (5th Cir. 2008) (quotation omitted). A complaint survives a motion to
    dismiss only if it “pleads factual content that allows the court to draw the
    reasonable inference that the defendant is liable for the misconduct alleged.”
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009). Denial of a motion to amend is
    3  While the motion was pending, Plaintiffs amended the complaint and the parties
    stipulated that the motion to dismiss would be deemed to apply to the amended complaint.
    3
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    reviewed for abuse of discretion. Stem v. Gomez, 
    813 F.3d 205
    , 209 (5th Cir.
    2016). When an amended complaint would still fail to survive a Rule 12(b)(6)
    motion, it is not an abuse of discretion to deny the motion. 
    Id. at 216
    .
    III
    When our jurisdiction is based on diversity, we apply the substantive law
    of the forum state. James v. Woods, 
    899 F.3d 404
    , 408 (5th Cir. 2018) (citing
    Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938)). When evaluating issues of
    state law, we look to the decisions of the state’s highest court. In re Franchise
    Servs. of N. Am., Inc., 
    891 F.3d 198
    , 209–10 (5th Cir. 2018). If no decision of
    that court resolves the matter, we make an “Erie guess” as to how the court
    would. 
    Id. at 210
    . We may also look to the state’s intermediate appellate courts,
    unless we have reason to think the state’s highest court would decide the issue
    differently. 
    Id.
    If guidance from state cases is lacking, “it is not for us to adopt innovative
    theories of recovery under state law.” Mayo v. Hyatt Corp., 
    898 F.2d 47
    , 49 (5th
    Cir. 1990). “Even in the rare case where a course of Texas decisions permits us
    to extrapolate or predict with assurance where that law would be had it been
    declared, we should perhaps––being out of the mainstream of Texas
    jurisprudential development––be more chary of doing so than should an
    inferior state tribunal.” Rhynes v. Branick Mfg. Corp., 
    629 F.2d 409
    , 410 (5th
    Cir. Unit A 1980).
    Negligence and products liability claims both require proof of causation.
    Under Texas law, “[n]egligence requires a showing of proximate cause, while
    producing cause is the test in strict liability.” Union Pump Co. v. Allbritton,
    
    898 S.W.2d 773
    , 775 (Tex. 1995), abrogated on other grounds by Ford Motor
    Co. v. Ledesma, 
    242 S.W.3d 32
     (Tex. 2007). “Proximate cause consists of both
    cause in fact and foreseeability.” 
    Id.
     “Cause in fact means that the defendant’s
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    No. 17-40968
    act or omission was a substantial factor in bringing about the injury which
    would not otherwise have occurred.” 
    Id.
     “Producing cause” has the same
    meaning as cause in fact, with no showing of foreseeability required. See
    Ledesma, 242 S.W.3d at 46 (defining “producing cause” as “a substantial factor
    in bringing about an injury, and without which the injury would not have
    occurred”); Union Pump, 898 S.W.2d at 775 (“[F]oreseeability is an element of
    proximate cause, but not of producing cause.”).
    Causation for both negligence and products liability therefore turns on
    whether an alleged cause of an injury may be recognized as a “substantial
    factor.” The Texas Supreme Court has found the following passage from the
    Restatement instructive:
    The word “substantial” is used to denote the fact that the
    defendant’s conduct has such an effect in producing the harm as to
    lead reasonable men to regard it as a cause, using that word in the
    popular sense, in which there always lurks the idea of
    responsibility, rather than in the so-called “philosophic sense,”
    which includes every one of the great number of events without
    which any happening would not have occurred. Each of these
    events is a cause in the so-called “philosophic sense,” yet the effect
    of many of them is so insignificant that no ordinary mind would
    think of them as causes.
    Restatement (Second) of Torts § 431, cmt. a (1965) (quoted in Lear Siegler, Inc.
    v. Perez, 
    819 S.W.2d 470
    , 471–72 (Tex. 1991)). With its references to reasonable
    persons, popular meanings, and ordinary minds, Texas law makes clear that
    the identification of substantial factors is meant to be “a practical test, [a] test
    of common experience.” Union Pump, 898 S.W.2d at 775 (quotations omitted).
    Ultimately, the Texas Supreme Court has said, this inquiry “mandates
    weighing of policy considerations.” City of Gladewater v. Pike, 
    727 S.W.2d 514
    ,
    518 (Tex. 1987).
    Appellants focus their briefing on issues of concurrent and superseding
    causation, arguing that Appellee’s device and Kubiak’s negligence were
    5
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    concurrent causes of the accident. But such issues arise when more than one
    legally recognized cause is present. See Stanfield v. Neubaum, 
    494 S.W.3d 90
    ,
    97–98 (Tex. 2016). We must first determine whether Texas law would
    recognize a smartphone’s effect on its user as a cause at all.
    No Texas case has addressed whether a smartphone manufacturer
    should be liable for a user’s torts because the neurobiological response induced
    by the phone is a substantial factor in her tortious acts. To our knowledge,
    informed by submissions to us, no court in the country has yet held that, and
    numerous courts have declined to do so. 4 As such, no authority indicates to us
    that Texas courts, contemplating reasonable persons and ordinary minds,
    would recognize a person’s induced responses to her phone as a substantial
    factor in her tortious acts and therefore hold the phone’s manufacturer
    responsible.
    The Texas cases on which Appellants rely make clear that acceptance of
    their causation theory would work a substantial innovation in Texas law.
    These cases present garden-variety theories of causation that ordinary minds
    would readily accept, so they have little to say about the present case. One is
    Dover Corp. v. Perez, which concerned a heater pumping carbon monoxide into
    an apartment due to its negligent manufacture and installation. 
    587 S.W.2d 761
    , 763–64 (Tex. Civ. App.––Corpus Christi 1979). No useful analogy exists
    between a smartphone’s effect on users and a heater generating carbon
    monoxide. Others are Dew v. Crown Derrick Erectors, Inc., 
    208 S.W.3d 448
    ,
    449–50 (Tex. 2006), about a worker who fell through an opening in an oil
    4 See Durkee v. C.H. Robinson Worldwide, Inc., 
    765 F. Supp. 2d 742
    , 749 (W.D.N.C.
    2011), aff’d sub nom., Durkee v. Geologic Sols., Inc., 502 F. App’x 326 (4th Cir. 2013); Coal.
    Against Distracted Driving v. Apple Inc., 
    2018 WL 2016665
    , at *1 (Cal. Ct. App. May 1, 2018)
    (unpub.), rev. denied (Aug. 15, 2018); Estate of Doyle v. Sprint/Nextel Corp., 
    248 P.3d 947
    ,
    951–952 (Okla. Civ. App. 2010); Williams v. Cingular Wireless, 
    809 N.E.2d 473
    , 478–79 (Ind.
    Ct. App. 2004).
    6
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    No. 17-40968
    derrick platform left unprotected, and Rio Grande Regional Hospital, Inc. v.
    Villareal, 
    329 S.W.3d 594
    , 603–04 (Tex. App.––Corpus Christi 2010), about a
    nurse who left a psychiatric patient unattended with razor blades. No
    worthwhile analogies suggest themselves here either. Appellants also cite a
    case about Ford’s decision not to install a seatbelt for the middle seat in the
    Ford Bronco’s rear row. Ford Motor Co. v. Cammack, 
    999 S.W.2d 1
    , 8–9 (Tex.
    App.––Houston [14th Dist.] 1998). An analogy may perhaps be drawn between
    a distracting phone and a car seat without a seatbelt, but it does not get us
    very far. A user of the former can make it safe for driving by silencing or
    switching it off; no such simple fix exists for the latter. 5
    To our minds, the closest analogy offered by Texas law is so-called dram
    shop liability: the liability of commercial purveyors of alcohol for the
    subsequent torts or injuries of the intoxicated customers they served. See Tex.
    Alco. Bev. Code §§ 2.01–03; Smith v. Sewell, 
    858 S.W.2d 350
     (Tex. 1993). Under
    that law, a person remains liable for her own negligent acts, but the
    incapacitating qualities of the product, which contribute to the person’s
    negligence, can subject the seller to liability as well.
    5 At oral argument, the parties discussed Flock v. Scripto-Tokai Corp., 
    319 F.3d 231
    (5th Cir. 2003), about the defective child-safety features of a lighter. A prior decision of ours
    offers only so much insight into Texas courts’ likely treatment of a novel issue. In any event,
    the case is distinguishable. Lighters are meant to produce fire, so we have no trouble
    recognizing them as a cause when blazes occur. The causal potential of smartphones via
    neurobiological pathways is not so clearly recognized. Moreover, Flock was about a small
    child’s use of a device, while the present case is about an adult’s. Appellants also brought
    three cases to our attention through a Rule 28(j) letter shortly before oral argument. None
    changes our picture of Texas law either. Critical Path Resources, Inc. v. Cuevas, 
    2018 WL 1532343
     (Tex. App.––Houston [14th Dist.] Mar. 29, 2018), concerned a flare line at an oil
    refinery filled with flammable substances that a defendant neglected to clear before repair
    work was done. Garcia v. Pruski, 
    2018 WL 4096392
     (Tex. App.––San Antonio Aug. 29, 2018),
    addressed the negligence of a person whose bull, left unattended, had strayed onto a public
    highway. Choctaw Nation of Oklahoma v. Sewell, 
    2018 WL 2410550
     (Tex. App.––Dallas May
    29, 2018), concerned a passenger distracting a bus driver, leading to an accident. None of the
    causes alleged in these cases strains the sensibilities of a reasonable person, nor does any
    resemble the cause advanced by Appellants here.
    7
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    The recognition of dram shop liability in Texas came about in a
    noteworthy way. The common law did not make an alcohol seller liable for
    harms caused by intoxicated patrons, but, noting developments in other states,
    the Texas Supreme Court saw it as its duty “to recognize the evolution” in the
    law. El Chico Corp. v. Poole, 
    732 S.W.2d 306
    , 310 (Tex. 1987). It held that “an
    alcoholic beverage licensee owes a duty to the general public not to serve
    alcoholic beverages to a person when the licensee knows or should know the
    patron is intoxicated.” 
    Id. at 314
    . Concurrently, the Texas Legislature passed
    the Dram Shop Act, which created a cause of action with different contours.
    See F.F.P. Operating Partners, L.P. v. Duenez, 
    237 S.W.3d 680
    , 683–84 (Tex.
    2007) (explaining the history). In the years that followed, a productive
    exchange between judicial and legislative branches unfolded, gradually
    resolving various further questions, large and small. See H.B. 2868, 79th Leg.
    Sess. (Tex. 2005); Reeder v. Daniel, 
    61 S.W.3d 359
     (Tex. 2001); Smith v. Merritt,
    
    940 S.W.2d 602
     (Tex. 1997); Graff v. Beard, 
    858 S.W.2d 918
    , (Tex. 1993); Smith
    v. Sewell, 
    858 S.W.2d 350
     (Tex. 1993). The result was a comprehensive
    regulatory scheme reflecting the two branches’ extensive deliberations and
    considered judgments.
    That is the form of state law development contemplated by Erie, under
    which “the voice adopted by the State as its own (whether it be of its
    Legislature or of its Supreme Court) should utter the last word” on state law.
    
    304 U.S. at 79
     (quotation omitted). To the extent there is a meritorious analogy
    between smartphone manufacturers and dram shops, it is for the state to
    explore, not us. 6
    6  It is worth observing that the two paths for law development that led to dram shop
    liability––state common-law courts and legislatures––may not be equally open in the present
    case. Those urging new forms of liability under state law may of course go to their
    legislatures. But where defendants operate nationwide in highly consolidated industries, like
    Apple in the smartphone industry, the rules governing federal courts in diversity cases may
    8
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    With the state not yet speaking directly to this issue, we note that the
    debilitating effects of alcohol have been recognized much longer than the
    effects of smartphones, and the proper regulation of the former has been
    debated much longer than the latter. Moreover, the law development that has
    occurred places the onus of distracted driving on the driver alone. See Tex.
    Transp. Code § 545.4251; H.B. 62, 85th Leg. Sess. (Tex. 2017) (making it a
    criminal offense to read, write, or send a text message while driving).
    We therefore cannot say that Texas law would regard a smartphone’s
    effect on a user as a substantial factor in the user’s tortious acts. To say
    otherwise would be an innovation of state law that Erie does not permit us to
    make. Because we decline to consider “neurobiological compulsion” a
    substantial factor under Texas law, we conclude that the iPhone 5 could not be
    a cause in fact of the injuries in this case. Consequently, it is unnecessary to
    consider the issues of concurrent and superseding causation on which
    Appellants have focused their arguments.
    IV
    The district court was correct to dismiss Appellants’ claims and to deny
    Appellants’ motion for leave to amend. The judgment of the district court is
    AFFIRMED.
    substantially close state courts to novel claims. Sued anywhere outside of their home states,
    the defendants can remove to federal courts. Those courts will then decide the cases under
    Erie precedents that require resort to state case law and likely prohibit acceptance of
    innovative theories. Provided the defendants diligently exercise their right to remove, cases
    may never progress through state courts outside of the defendants’ home states. Even if cases
    do progress in the defendants’ home states, decisions of those states’ courts will have little
    significance for federal courts in the rest of the country. The result may be a legal system less
    generative than normal. Certification of questions to the state’s highest court is perhaps a
    way out of this bind. Appellants did not request that here, and their theory of causation is
    too great an extension beyond existing Texas law for us to consider sua sponte certification.
    9