     Case: 19-20072      Document: 00515185708         Page: 1    Date Filed: 11/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                     November 4, 2019
                                      No. 19-20072
                                                                       Lyle W. Cayce
                                                                            Clerk
MACK PETERSON; DON PETERSON; LONNY PETERSON,

               Plaintiffs - Appellants

v.

SILVERADO SENIOR LIVING, INCORPORATED,

               Defendant – Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-51


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       Mack, Don, and Lonny Peterson (“the Petersons”) appeal the district
court’s judgment granting Silverado Senior Living’s (“Silverado”) Rule 12(b)(6)
motion to dismiss for failure to state a claim. For the following reasons, we
affirm.
                     I. Factual & Procedural Background
       Ruby Peterson was a patient in her nineties at Silverado’s assisted living
facility in Sugarland, Texas, until she died in January 2015. The Petersons are



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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some of Ruby’s adult children who filed suit against Silverado in January 2017,
approximately two years after Ruby’s death. They alleged breach of contract
and negligence claims on behalf of Ruby’s estate as well as a wrongful death
claim that Silverado caused Ruby’s demise and death. Silverado moved for
summary judgment asserting that the Petersons lacked standing to bring
claims on behalf of Ruby’s estate. Silverado also claimed that judgments in
previous actions collaterally estopped the Petersons from bringing the
wrongful death claim.
       The district court granted summary judgment in favor of Silverado on
the Petersons’ survival claims concluding that they lacked standing to bring
claims on behalf of Ruby’s estate. The district court denied summary judgment
on the wrongful death claim explaining that it found “Plaintiffs’ pleadings
completely void of any factual assertions supporting their wrongful death
claim” and thus it could not effectively evaluate “whether the wrongful death
claim [was] based on the same nucleus of operative facts as Plaintiffs’ previous
suits against Defendant.” The district court then gave the Petersons two
additional opportunities to amend their pleadings to state a plausible wrongful
death claim. In their second amended complaint, 1 the Petersons alleged that
Silverado forced Ruby to take Seroquel, that Seroquel is a medication known
to cause pneumonia, that pneumonia can cause death in elderly patients, and
that Ruby contracted pneumonia and died a month after Silverado forced her
to take the Seroquel.
      After the second amended pleading was filed, Silverado again moved to
dismiss the suit under Rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). On January
3, 2019, the district court granted the motion, dismissing the Petersons’ claims



      The Petersons incorrectly titled their second amended complaint as “Plaintiffs’ First
      1

Amended Complaint.”
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                                       No. 19-20072
with prejudice. 2 The district court first noted that, without seeking leave, the
Petersons asserted two new claims on behalf of Ruby’s estate. It observed that,
even if the claims were properly before it, the Petersons still lacked standing
to sue on behalf of Ruby’s estate, so the claims were dismissed. The district
court then dismissed the remaining claim based on the Petersons’ failure to
state a claim under Texas’s wrongful death statute. Specifically, the district
court determined that the claim failed to identify how Silverado’s actions
contributed to Ruby’s death. On January 28, 2019, the Petersons noticed their
appeal from “the final order entered in this action by the trial court on 4
January 2019.”
                                II. Standard of Review
      We review the district court’s grant of a motion to dismiss de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff. See Hines v. Alldredge, 783 F.3d 197, 200–01
(5th Cir. 2015). To survive a motion to dismiss, a plaintiff must “allege facts
sufficient to ‘state a claim for relief that is plausible on its face.’” Littell v. Hous.
Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. “The dismissal will
be upheld only if ‘it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.’” Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (quoting Lowrey v.
Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).




      2   Its final order was entered January 4th.
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                                       III. Discussion
       As a preliminary matter, the Petersons dedicate some of their argument
on appeal to the district court’s dismissal of their claims brought on behalf of
Ruby’s estate. But their initial survival claims are not properly before this
court because they were disposed of in the prior summary judgment rendered
in favor of Silverado, and the Petersons did not appeal that judgment.
Likewise, the two new survival claims they attempted to bring on behalf of
Ruby’s estate in their second amended complaint were never properly before
the district court because they failed to seek leave to file those claims. 3 See Fed.
R. Civ. P. 15(a)(2).
       Consequently, the primary issue on appeal here is whether the district
court erred in granting Silverado’s motion to dismiss the Petersons’ wrongful
death claim. Under Texas’s wrongful death statute, “[a] person is liable for
damages arising from an injury that causes an individual’s death if the injury
was caused by the person’s . . . wrongful act, neglect, carelessness,
unskillfulness, or default.” TEX. CIV. PRAC. & REM. CODE § 71.002(b). The


       3 Nevertheless, even if the survival claims were before us, we would affirm the district
court’s dismissal of them. Texas law establishes that “generally, personal representatives of
the decedent’s estate are the only people entitled to sue to recover estate property.” Shepherd
v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998). A decedent’s heirs who are not executors may have
standing to sue on behalf of the estate “if they allege and prove that there is no administration
pending and none necessary.” Id. at 31–32. The record reveals, however, that two other
people—David Troy Peterson and Carol Ann Manley—were appointed as the personal
representatives of Ruby’s estate. On appeal, the Petersons claim that they have standing to
bring these claims because they requested to join the executors of Ruby’s estate as
indispensable parties under Rule 19. See Fed. R. Civ. P. 19. The district court denied that
request though, explaining that the Petersons’ attempt “to get around their inability to bring”
the claims that belong to the executors of Ruby’s estate “is unsupported by case law and
inappropriate.” Moreover, the Petersons have failed to point to a case in this circuit that
allows a party to create for himself the right to bring a claim by joining the party who is the
sole owner of that right. Cf. Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]he plaintiff
generally must assert his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.”). The district court did not err in determining
that the Petersons lacked standing to bring claims on behalf of Ruby’s estate.

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statute “authorizes claims only for actions that actually cause death.” Kramer
v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 404 (Tex. 1993) (emphasis in
original). Texas law defines causation by common law. See Park Place Hosp. v.
Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). “The ultimate standard of
proof on the causation issue ‘is whether, by a preponderance of the evidence,
the negligent act or omission is shown to be a substantial factor in bringing
about the harm and without which the harm would not have occurred.’” Id.
(quoting Kramer, 858 S.W.2d at 400). This means that “recovery is barred
when the defendants’ negligence deprived the patient of only a fifty percent or
less chance of survival.” Id.
      Here, the district court concluded that the Petersons’ second amended
complaint “contains limited factual details surrounding [Ruby’s] death,” and
that the Petersons “fail[ed] to identify how Silverado’s actions contributed to
[Ruby’s] death.” We agree. In their second amended complaint, the Petersons
detail the following allegations: (1) Silverado “forced [Ruby] to take Seroquel
against her will so they could subdue and control her”; (2) “Seroquel is a
dangerous drug which when administered to patients with even minor
dementia might cause a patient to become infected with pneumonia, which in
the elderly . . . could very possibly lead to death”; (3) “In December of 2014
[Ruby] became infected with pneumonia”; and (4) approximately one month
later, Ruby died. The complaint continues that “[a]s a direct and proximate
result of Silverado’s misconduct as aforesaid [i.e., forcing Ruby to take
Seroquel], Silverado unlawfully wrongfully killed [Ruby].”
      Even accepting the alleged facts as true, the Peterson’s second amended
complaint is insufficient to support a plausible inference that Silverado’s
actions were more likely than not the cause of Ruby’s death. See Park Place
Hosp., 909 S.W.2d at 511; see also Plummer v. Univ. of Hous., 860 F.3d 767,
780 (5th Cir. 2017) (noting that proof “by a preponderance of the evidence” is a
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                                  No. 19-20072
“more likely than not” standard). The connection between Silverado’s
administration of Seroquel to Ruby and her later death is tenuous at best. As
the district court noted, the Petersons allege that Seroquel “might” cause a
patient to contract pneumonia and that pneumonia “could very possibly” lead
to death. But these allegations are not enough to achieve causation under
Texas’s wrongful death statute. In essence, we are being asked first to agree
that, of all possible causes, Seroquel caused Ruby’s pneumonia. And second,
we must agree that, of all possible causes of death in an elderly nursing home
patient, it was more likely than not that pneumonia—caused solely from
ingesting Seroquel—actually caused Ruby’s death. See Kramer, 858 S.W.2d at
404 (stating that the statute “authorizes claims only for actions that actually
cause death” (emphasis in original)). There are simply too many suppositions
required here to achieve causation under the preponderance of the evidence
standard. See Park Place Hosp., 909 S.W.2d at 511.
      For these reasons, we hold that the district court did not err in
dismissing the Petersons’ wrongful death claim.
                                IV. Conclusion
      In light of the foregoing, we affirm the district court’s order in full.




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