Justice Harriet O'Neill's Dissenting Opinion
in Ownes & Minor, Inc. v. Ansell Healthcare Products, Inc.,
No. 06-0322 (Tex. Mar 28, 2008) (Majority Opinion by Justice Green)
---> Concurring Opinion by Justice Brister
(product liability, indemnification for litigation costs) (certified question from Fifth Circuit Court of Appeals.)
OWENS & MINOR, INC. AND OWENS & MINOR MEDICAL, INC. v. ANSELL HEALTHCARE PRODUCTS, INC. AND
BECTON, DICKINSON AND COMPANY
motion to consolidate denied
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Green delivered the opinion of the Court [pdf file], in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, and Justice Brister joined.
Justice Brister delivered a concurring opinion [pdf file].
Justice O'Neill delivered a dissenting opinion [pdf file], in which Justice Medina, Justice Johnson, and Justice
DISSENTING OPINION BY JUSTICE O'NEILL
Argued October 19, 2006
Justice O’Neill, joined by Justice Medina, Justice Johnson, and Justice Willett, dissenting.
A manufacturer of a product alleged in a pleading to be defective is required to indemnify and hold harmless
an innocent seller against loss arising out of a products liability action, regardless of how the action is concluded.
Tex. Civ. Prac. & Rem. Code § 82.002. We have said that the manufacturer’s indemnity duty is invoked not by
proof but by the plaintiff’s pleadings, Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 252 (Tex.
2006); see Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999), and that it
encompasses all allegations against the seller that relate to a plaintiff’s injury, Meritor Auto., Inc. v. Ruan Leasing
Co., 44 S.W.3d 86, 89 (Tex. 2001). Section 82.002’s clear purpose is to expand the common law indemnity rights
of innocent sellers like the one here, who merely passed along sealed packages from the factory. Yet the Court
restricts the statutory indemnity obligation to defense costs the seller can link to a particular manufacturer’s
product. That is an impossible burden in this case, as the underlying action was nonsuited without a determination
of whose product, if any, actually caused injury. As a result, the innocent seller’s inability to attribute costs to a
particular manufacturer leaves it without recompense, defeating the very protection the statute was meant to
confer. The statutory text and our interpretive caselaw demonstrate that the Legislature intended a far broader
protection for innocent product suppliers than that which the Court affords today. In my view, the statute obligated
the manufacturers here to indemnify or defend the innocent seller against all claims the plaintiff alleged, for which
they could then seek contribution from the remaining manufacturers. Because the Court holds otherwise, I
Kathy Burden, a dental hygienist, filed a products liability action alleging that she developed a latex allergy
from defective latex gloves. The respondents here were among the more than thirty defendants named in Burden’
s suit. Owens & Minor, Inc. and Owens & Minor Medical, Inc. (collectively “Owens & Minor”) were sued as
distributors of latex gloves, and Ansell Healthcare Products, Inc. and Becton Dickinson & Co. were sued as
manufacturers. Owens & Minor sent letters to several of the defendant manufacturers, including Ansell and
Becton, requesting that they indemnify Owens & Minor for all litigation expenses as required under Texas Civil
Practice and Remedies Code section 82.002. When Ansell responded by offering to defend claims related only to
its own products, Owens & Minor refused the offer. Becton did not respond to Owens & Minor’s letter, relying on
its position in earlier latex-glove litigation that in future proceedings it would only agree to defend Owens & Minor
for claims related to its own products. Owens & Minor thus retained its own counsel to defend the products liability
The case was removed to federal court and consolidated as part of multidistrict latex-glove litigation in
Pennsylvania. Owens & Minor brought cross-claims for indemnity against several of the manufacturers, including
Ansell and Becton. The plaintiff, unable to show that Owens & Minor sold any of the injury-causing latex gloves,
nonsuited her claims against Owens & Minor. She subsequently dismissed her case against all the remaining
defendants for the same or similar reasons. Thus, the products liability suit ended without a finding that any party
was negligent or that any particular product caused the plaintiff’s injuries. Owens & Minor settled its indemnity suit
against all solvent manufacturers except Ansell and Becton. The federal district court granted summary judgment
in Ansell’s and Becton’s favor, reasoning that they had satisfied section 82.002 by offering to defend their own
products. Burden v. Johnson & Johnson Med., Inc., 332 F. Supp. 2d 1023, 1029 (S.D. Tex. 2004). Owens
appealed to the Fifth Circuit, which certified the question to us.
II. Common Law Indemnity and Section 82.002
Under Texas law, sellers of defective products may be held strictly liable for resulting injuries. Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334–35 (Tex. 1998) (citing McKisson v. Sales Affiliates, Inc., 416
S.W.2d 787, 788–89 (Tex. 1967)). Sellers are therefore often named as defendants in products liability suits
regardless of any allegation of wrongdoing. As a result, undisputedly innocent sellers frequently must dedicate
tremendous resources to defending allegedly defective products they did not manufacture or alter but merely
passed on to consumers. See Jeffrey Nolan Diamant, Comment, Texas Senate Bill 4: Product Liability Legislation
Analyzed, 31 Hous. L. Rev. 921, 930 (1994).
Under the common law, sellers were only entitled to indemnification from the manufacturer for damages if the
manufacturer was found to be liable. See Humana Hosp. Corp. v. Am. Med. Sys., Inc., 785 S.W.2d 144, 145 (Tex.
1990). Indemnification for other litigation expenses was unavailable altogether. See Aviation Office of Am., Inc. v.
Alexander & Alexander of Tex., Inc., 751 S.W.2d 179, 180 (Tex. 1988). Thus, when neither the seller nor the
manufacturer was found liable, the seller bore the heavy cost of its defense of the product. In addition to the
requirement that the manufacturer be found liable, a seller’s liability must only have been vicarious, B & B Auto
Supply, Sand Pit & Trucking Co. v. Cent. Freight Lines, Inc., 603 S.W.2d 814, 817 (Tex. 1980), that is, the seller
must not have been independently liable based on its own conduct, Duncan v. Cessna Aircraft Co., 665 S.W.2d
414, 432 (Tex. 1984), and the seller must have been in the chain of distribution, id.
In 1993, the Legislature sought to remedy the unfairness to innocent product sellers by enacting section
82.002 of the Texas Civil Practice and Remedies Code. This statute completely changed the common law
manufacturer-seller indemnification scheme by shifting the burden of the seller’s litigation costs onto the
manufacturer. See Tex. Civ. Prac. & Rem. Code § 82.002. Now, when neither the seller nor the manufacturer is
found liable, the manufacturer must “indemnify and hold harmless” the seller for all of its litigation expenses,
including attorney’s fees. Id. § 82.002(a), (b). As under the common law, the statute explicitly provides that the
seller loses its right to indemnification if it is found independently liable. Id. § 82.002(a). However, unlike the
common law, the statute requires that the manufacturer indemnify the seller for all litigation expenses “without
regard to the manner in which the action is concluded.” Id. § 82.002(e)(1). We recognized in Fitzgerald that
section 82.002 is intended to protect both sellers and product manufacturers, “[f]irst, [by] ensur[ing] that the
relatively small seller need not fear litigation involving problems that are really not in its control,” and “[s]econd,
[by] establish[ing] uniform rules of liability so that manufacturers could make informed business decisions and
plaintiffs could understand their rights.” Fitzgerald, 996 S.W.2d at 868–69. In easing the requirements for
indemnification, the Legislature “gave preference to sellers with no independent liability.” Id. at 869.
III. Interpreting Section 82.002
In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. &
Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). We first look to the statute’s language. Tex Gov’t Code §
311.011(a); Allen, 15 S.W.3d at 527. Indeed, we consider it “a fair assumption that the Legislature tries to say
what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Fitzgerald, 996
S.W.2d at 866. If the statute’s language is unambiguous, its plain meaning will prevail. McIntyre v. Ramirez, 109 S.
W.3d 741, 745 (Tex. 2003). Section 82.002, in its entirety, provides:
(a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action,
except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as
negligently modifying or altering the product, for which the seller is independently liable.
(b) For purposes of this section, “loss” includes court costs and other reasonable expenses, reasonable attorney
fees, and any reasonable damages.
(c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable for purposes of this
(d) For purposes of this section, a wholesale distributor or retail seller who completely or partially assembles a
product in accordance with the manufacturer’s instructions shall be considered a seller.
(e) The duty to indemnify under this section:
(1) applies without regard to the manner in which the action is concluded; and
(2) is in addition to any duty to indemnify established by law, contract, or otherwise.
(f) A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a
product claimed in a petition or complaint to be defective, unless the manufacturer has been served as a party or
otherwise has actual notice of the action.
(g) A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable
attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification
under this section.
Tex. Civ. Prac. & Rem. Code § 82.002.
Section 82.001 defines the term “products liability action” as “any action against a manufacturer or seller for
recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective
product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation,
breach of express or implied warranty, or any other theory or combination of theories.” Id. § 82.001(2). The term
“seller” is defined as “a person who is engaged in the business of distributing or otherwise placing, for any
commercial purpose, in the stream of commerce for use or consumption a product or any component part
thereof.” Id. § 82.001(3). The statute broadly defines a “manufacturer” as “a person who is a designer, formulator,
constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any
component part thereof and who places the product or any component part thereof in the stream of commerce.”
Id. § 82.001(4).
The statute’s import is straightforward and unmistakable: unless the seller is found to be negligent, the
manufacturer must “indemnify and hold harmless” the seller for any reasonable expenses resulting from products
liability litigation “without regard to the manner in which the action is concluded.” Id. § 82.002(a), (e)(1). The
extent of the indemnity — sellers are to be indemnified regardless of the outcome of the underlying lawsuit —
indicates how broadly the Legislature intended it to apply. Id. § 82.002(e), (g). The Court’s conclusion that a
manufacturer must only indemnify a seller for that portion of its defense costs related to the manufacturer’s
particular product contravenes the statute’s language and creates an exception to the indemnity obligation that
does not exist in the text.
The Court’s holding also undermines the law’s fundamental purpose, leaving many innocent sellers exposed
to damages and expenses incurred in defending a product without recourse. See id. § 82.002(a). Under the Court’
s construct, a seller might enjoy complete indemnity if every manufacturer named in the suit agreed to defend or
indemnify for the defense of its own product. But many products liability actions, like the one here, involve multiple
manufacturers, and the litigation is often resolved without a determination of whose product reached the plaintiff
or caused the injury. After today, the innocent seller in such a situation who is unable to attribute its costs to a
particular manufacturer must shoulder the burden of the cost of defending the manufacturer’s products, contrary
to the statute’s purpose.
The Court posits that if the Legislature had intended manufacturers to bear the burden of determining how
the seller’s litigation costs should be distributed among the manufacturers, the Legislature would have provided
that manufacturers, as well as sellers, be indemnified for litigation expenses incurred in seeking contribution. ___
S.W.3d at ___, n.4. However, indemnification, which is the right provided to the seller in section 82.002, and
contribution, which may be available to the manufacturers, are two distinct concepts with varying purposes;
indemnity operates to completely shift the burden of loss from one, usually innocent, party to another, while
contribution involves apportionment of a burden among a class of liable parties. See 6 Texas Torts & Remedies,
Contribution & Indemnity § 102.01 (MB) (2007). Here, the Legislature intended that the innocent seller be held
completely harmless for any loss and therefore provided the seller with indemnity and compensation for expenses
securing that indemnity. Tex. Civ. Prac. & Rem. Code § 82.002(a), (g). In contrast, the Legislature deliberately
burdened the manufacturers with the expense of litigation and made no distinction between different
manufacturers’ levels of liability. Under the statutory scheme, the manufacturers are collectively, not individually,
responsible for the seller’s losses. Contribution, the only avenue available to the manufacturers against each
other, is fundamentally about sharing the burden, not shifting the burden. Thus, it is logical that the Legislature
chose to award litigation expenses in the case of indemnity, but not for contribution.
The Court bases its conclusion that a manufacturer’s indemnity obligation extends only to its own products on
section 82.001(4), which defines a “manufacturer” as “a person who is a [maker] of any product or any
component part thereof and who places the product or any component part thereof in the stream of commerce.”
Id. § 82.001(4) (emphasis added). Under the Court’s construct, if the plaintiff in the underlying claim, or the seller
in the indemnity action, is unable to show that a particular manufacturer’s product reached the plaintiff and could
have caused the alleged injury, that manufacturer has no indemnity obligation under the statute. The Court’s
construction, however, requires that we read the same phrase in the same section differently than we have with
respect to sellers. Subsection 82.001(3) defines a “seller” as “a person who is engaged in the business of
distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption
a product or any component part thereof.” Id. § 82.001(3) (emphasis added). In Fitzgerald, we held that a seller
who did not place the particular product alleged to have injured the plaintiff in the stream of commerce was
nonetheless a “seller” for purposes of section 82.002 and was thus entitled to indemnification from the
manufacturer. 996 S.W.2d at 867. We reasoned that nothing in the statutory text required proof that the seller
was in the distribution chain of the particular product that caused an injury. Id. Given that the statute uses the
same phrase — “plac[es] [the] product” “in the stream of commerce” — to define both manufacturers and sellers,
Fitzgerald would appear to preclude a chain-of-distribution requirement for holding manufacturers to their
statutory indemnity obligation. Tex. Civ. Prac. & Rem. Code § 82.001(3), (4).
Further, our holding in Fitzgerald undermines the Court’s reliance on common law principles instead of the
statutory language to require a nexus between the manufacturer and the product. In Fitzgerald, we considered
whether the Legislature intended section 82.002 to supplant all common law indemnification requirements,
including the chain-of-distribution requirement, or only the requirement that the manufacturer be found liable. In
holding that a seller need not be in the distribution chain for indemnity to apply, we recognized the dramatic
changes the statute effected and the diminished import of the common law in this context:
Even if the common law were clear on this issue, the manufacturer’s claim that the Legislature intended to adopt
the common law is not supported by the statute’s legislative history and is contradicted by the statute itself. The
Legislature must have been aware it was creating a new duty, not codifying existing law, because the statute says
that the duty to indemnify under this section “is in addition to any duty to indemnify established by law, contract, or
otherwise.” Thus, the state of the common law sheds little light on what the Legislature intended when it . . .
required manufacturers to indemnify sellers in section 82.002(a).
Fitzgerald, 996 S.W.2d at 868 (emphasis added). Nevertheless, the Court invokes the common law to conclude
that the statute requires a nexus between the manufacturer and the product the seller is forced to defend,
reasoning that since common law indemnity is intended to hold harmless a party exposed to liability due to the
wrongdoing of another, the statute too requires indemnity only if a manufacturer “was or would have been liable”
in the underlying products liability action. ___ S.W.3d. at ___. In reaching this conclusion, the Court disregards
our interpretation of the statutory scheme in Fitzgerald and the text of the statute itself, which entitles the seller to
indemnity “without regard” to the outcome of the suit. Tex. Civ. Prac. & Rem. Code § 82.002(e)(1). I agree with the
federal district court that “[t]he law requires that manufacturers pay regardless of how an action is concluded; that
includes actions that are resolved before discovery can show a chain of distribution,” and that “[m]aking Owens
prove that the manufacturers were in the chain of distribution would force the parties to litigate issues that are
unnecessary under the statute.” Burden, 332 F. Supp. 2d at 1028; see also Ansell Healthcare Prods., Inc. v.
Owens & Minor, Inc., 189 S.W.3d 889, 895 (Tex. App.—Texarkana 2006, pet. filed).
The Court erroneously concludes that this case is indistinguishable from General Motors Corp. v. Hudiburg
Chevrolet, Inc., in which we held that the manufacturer of a component part not alleged to be defective in the
plaintiff’s pleadings did not owe a duty to indemnify the distributor of the finished product. 199 S.W.3d at 257. In
so holding, we relied on section 82.002(f)’s requirement that a seller give notice to a manufacturer of “a product
claimed in a petition or complaint to be defective.” Tex. Civ. Prac. & Rem. Code § 82.002(f). Based on the statute’
s language, we held that the key factor in deciding a manufacturer’s duty to indemnify the seller was whether the
plaintiff’s pleadings claimed that the manufacturer’s product was defective. Hudiburg, 199 S.W.3d at 257. Seelin
Medical, Inc. v. Invacare Corp. demonstrates how one court of appeals has followed Hudiburg. 203 S.W.3d 867
(Tex. App.—Eastland 2006, pet. denied). In Seelin, the plaintiff’s original petition contained allegations that a
component part of a product that was manufactured by Invacare was defective. The plaintiff later amended his
petition to exclude claims regarding Invacare’s product. Id. at 868. Following Hudiburg, the court of appeals held
that Invacare must indemnify the seller for defense costs incurred for the period of time during which the live
petition contained allegations against Invacare’s product, but not for expenses incurred after the petition was
amended. Id. at 871–72. While a manufacturer need not be a named defendant to trigger the indemnity
obligation, a manufacturer is not obligated to indemnify a seller “for defending unproved claims that were never
made” or, as in Seelin, were no longer present. Hudiburg, 199 S.W.3d at 257. I agree with the Seelin court that
the statute limits the scope of a manufacturer’s indemnity liability to expenses incurred by the seller during the
period of time the manufacturer’s product is implicated by the plaintiff’s live pleadings; any additional liability would
violate the principal we established in Hudiburg. Id.
Here, the Court asserts “[t]here is no substantive difference between the position of the component-part
manufacturer in Hudiburg and the position of Ansell and Becton in this case.” ___ S.W.3d at ___. To the contrary,
unlike the component-part manufacturer in Hudiburg, Ansell and Becton were named as defendants in the
underlying suit and their products were specifically alleged to be defective. This case fits squarely within the
scope of liability we described in Hudiburg and that was applied in Seelin: “the claimant’s pleadings fairly allege[d]
a defect in” Ansell’s and Becton’s products. Hudiburg, 199 S.W.3d at 257. In other words, Ansell and Becton are
responsible for costs incurred by Owens & Minor only to the extent that their products are implicated by the
plaintiff’s pleadings; if Burden had dropped her claims against their products, Ansell and Becton would not be
liable for any costs incurred by Owens & Minor after that point because, like the manufacturer in Seelin, there
would no longer be a live claim against them.
Finally, our holding in Meritor Automotive, Inc. v. Ruan Leasing Co. supports the conclusion that a
manufacturer must indemnify the seller for its defense of all allegations made against the seller, even if those
allegations are not linked to a manufacturer’s particular product. 44 S.W.3d at 89. In Meritor, we were asked
whether a manufacturer must indemnify a seller for the seller’s defense of an unsuccessful negligence claim
against the seller. Id. at 87. Again relying on the statute’s plain language, we held that a manufacturer must
indemnify a seller for all claims in the products liability suit, including those alleging independent wrongdoing on
the seller’s part. Id. at 90. We reasoned that, since section 82.002(a) states that a “manufacturer shall indemnify
and hold harmless [a seller] against loss arising out of a products liability action,” and section 82.001(2) defines
“products liability action” as “any action against a manufacturer or seller for recovery of damages arising out of
personal injury, death, or property damage allegedly caused by a defective product,” the manufacturer’s duty to
indemnify extended to “all direct allegations against the seller that relate to plaintiff’s injury as part of the ‘products
liability action,’ and that we exclude only those losses proven to have been ‘caused by’ the seller.” Id. at 90
Our decision in Meritor illustrates the breadth of the indemnity the Legislature afforded sellers under section
82.002. In holding that manufacturers must indemnify sellers who successfully defend claims based on the seller’s
own negligence, we recognized that the indemnity obligation manufacturers bear extends even to claims unrelated
to any wrongdoing by the manufacturer. The plain language of the statute and our prior cases compel the
conclusion that section 82.002 requires a manufacturer to indemnify a seller for its entire defense unless the
seller is found to be independently liable.
The Court asserts various policy considerations to support its interpretation of the statute. Construing the
statute to require manufacturers to indemnify or defend all claims against a seller in a products liability action, the
Court posits, would lead to absurd results, as it would place one manufacturer in the untenable position of having
to defend another manufacturer’s products. This might be impossible, the Court says, because the defense must
be intimately familiar with the particular product in order to defend it, and a manufacturer might be forced to turn
over proprietary information to a competitor in the course of the defense.
First, the statute does not require that the manufacturer defend claims against the seller. The statute only
uses the words “indemnify and hold harmless.” Tex. Civ. Prac. & Rem. Code § 82.002(a). While we have
recognized that defending the seller fulfills the indemnity obligation, a manufacturer that considers the defense of
another manufacturer’s product problematic yet necessary to the seller’s defense could presumably implead the
culpable manufacturer. If joinder is not an option, the manufacturer could choose to defend only its own product
and indemnify the seller for the rest, for which it would be entitled to seek contribution. Better yet, the
manufacturers could all agree to cooperate in the seller’s defense, which the statutory scheme as I interpret it
would seem to encourage. The federal district court’s analysis on this point is persuasive:
Consider this hypothetical: A consumer sues seven drug stores knowing he bought from four or fewer and not
knowing which of the defendants supplied him. He took a prescription drug manufactured by two companies, and
the claim is product defect. In this case, the statute works to oblige the makers to defend and to pay the sellers’
modest costs, with the modesty of the costs depending on cooperation among the parties and judicial
management. The gross costs will be much less if the makers step in the action promptly since no liability could
independently attach to the sellers.
Burden, 332 F. Supp. 2d at 1028.
Further, the concerns the Court voices about a manufacturer having to defend another manufacturer’s
product are surely magnified for a seller who is forced to defend multiple manufacturers’ products in a products
liability action. As the court of appeals in Ansell Healthcare recognized:
The distributor is likewise in a poor position to attempt to defend the product manufactured by another. . . . The
Legislature has elected to favor the innocent distributor over the manufacturers of allegedly defective products.
The Texas Supreme Court has analyzed the statute in a light favorable to the innocent seller. Here, such an
application results in requiring each manufacturer of an allegedly defective product sold by an innocent distributor
to assume a full defense of the distributor or indemnify it from losses incurred.
189 S.W.3d at 895.
The Court bases an additional policy point upon a 1968 Utah case about right-of-way, positing that when
there are two innocent parties one party should not be entitled to pass on its litigation expenses to the other. ___
S.W.3d. at ___ (citing Bettilyon Constr. Co. v. State Rd. Comm’n, 437 P.2d 449, 449–50 (Utah 1968)). However,
by enacting section 82.002, the Legislature made the policy decision in products liability suits to require even
innocent manufacturers to indemnify innocent sellers for their litigation costs. The role of this Court “is not to
second-guess the policy choices that inform our statutes . . . ; rather, our task is to interpret these statutes in a
manner that effectuates the Legislature’s intent.” McIntyre, 109 S.W.3d at 748. Here, the statute’s text indicates
the Legislature’s intent to “hold harmless a seller” “without regard to the manner in which the action is concluded.”
Tex. Civ. Prac. & Rem. Code § 82.002(a), (e)(1). Requiring the seller to establish that a manufacturer was in the
chain of distribution imposes a requirement that does not exist in the statute and contravenes the Legislature’s
I would hold that section 82.002 obligated Ansell and Becton to indemnify Owens & Minor against all claims
that Burden alleged, not just those related to their own products. Because the Court holds otherwise, I respectfully
OPINION DELIVERED: March 28, 2008