                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 22, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30182



TINSIE CROWDER; CONNER CROWDER; CHRISTIAN CROWDER,

                                            Plaintiffs-Appellants,

                              versus

AMERICAN EAGLE AIRLINES INC ETC; ET AL,

                                                         Defendants,

AMERICAN EAGLE AIRLINES, Successor-in-interest to formerly known
as Wings West Airlines, Inc, Inc; AMERICAN AIRLINES, Inc,

                                             Defendants-Appellees.



          Appeal from the United States District Court
              for the Western District of Louisiana
                         (No. 03-CV-1157)


Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants Tinsie Crowder, Conner Crowder, and

Christian Crowder (collectively the “Crowder Family”) filed suit in

federal district court against Defendants-Appellees, American Eagle

Airlines, Inc. (“American Eagle”) and its parent corporation,

American Airlines, Inc. (“American”), for the wrongful death of


     *
        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that this opinion should not be published and is not precedent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.
their husband and father, William Crowder.                    The district court

referred the case to a magistrate judge who recommended dismissal

for failure to state a claim.                 After correcting several of the

magistrate judge’s factual findings, the district court adopted the

recommendation and dismissed the case.                We affirm.

                             I.    FACTS AND PROCEEDINGS

A.     BACKGROUND FACTS

       The Crowder Family’s action arises from a pre-employment

physical examination that Crowder underwent in November 1995.                        He

had applied for a position as a pilot with American Eagle and was

offered    a     position     with    Wings    West   Airlines,      Inc.    (then   a

subsidiary of American Eagle), conditioned in part on his passing

a     physical     examination        administered     by    American’s      medical

department.       In the course of this examination, Crowder underwent

tests that revealed above-normal blood pressure and cholesterol

levels. These results were allegedly not disclosed to Crowder. He

was hired as a pilot, and suffered a severe heart attack in 1996

which permanently damaged his heart muscle.

       Following his heart attack, Crowder allegedly became aware for

the first        time   of   the    medical    information    that    American    had

obtained through the pre-employment physical examination. He filed

two    successive       lawsuits     in   Texas   state     court    based   on   the

nondisclosure of that information.                The first suit (“Crowder I”)

was filed against American for actual and constructive fraud and


                                           2
violations    of    the      Texas     Deceptive      Trade   Practices-Consumer

Protection Act. In it, Crowder claimed that American had failed to

disclose   the     results    of     his   medical    tests   and   intentionally

concealed and withheld critical medical information concerning his

coronary risk factors.         American filed a summary judgment motion

for dismissal, which was granted. On appeal, the state court ruled

that Crowder’s suit was essentially for medical malpractice or

negligence, and that it could not succeed because no physician-

patient relationship existed.1 Crowder’s rehearing petition to the

Texas Supreme Court was denied.

     Crowder’s filed his second state court suit (“Crowder II”)

against    American    Eagle,        alleging   the    concealment    of   medical

examination results that would have revealed his elevated blood

pressure and cholesterol readings.              In his second suit, Crowder

claimed actual and constructive fraud, breach of express and

implied contract, promissory estoppel, breach of fiduciary duty,

organized unlawful conduct, and conversion.                    The trial court

granted American Eagle’s no-evidence summary judgment motion.                  The

Texas appellate court affirmed, concluding that Crowder had failed

to produce evidence to show that American Eagle knew of his cardiac

risk factors or that the company had a nondisclosure policy.2                  The

     1
       Crowder v. Am. Airlines, Inc., No. 05-99-00661-CV, 2000 WL
471520, at *2 (Tex. App. — Dallas April 25, 2000, pet. denied).
     2
       Crowder v. Am. Eagle Airlines Inc., No. 05-02-00069-CV,
2003 WL 559402, at *2-3 (Tex. App. — Dallas Feb. 28, 2003, pet.
denied).

                                           3
court rejected his breach of contract and promissory estoppel

claims.3       Crowder’s rehearing petition to the Texas Supreme Court

was denied.

B.   THE INSTANT LITIGATION

     In June 2003, following Crowder’s death, the Crowder Family

filed the present suit against American and American Eagle in the

federal district court for the Western District of Louisiana.      The

complaint, twice amended, alleges gross negligence, breach of

express and implied contract, promissory estoppel and breach of

fiduciary duty.        American Eagle and American filed a 12(b)(6)

motion to dismiss for failure to state a claim, arguing that the

Full Faith and Credit Clause of the United States Constitution

required the district court to dismiss the present case in light of

the two Texas state court judgments adverse to Crowder.          These

defendants argued in the alternative that, under Louisiana law, the

wrongful death beneficiaries of a decedent can have no greater

rights against a defendant than had the decedent himself. The case

was referred to a magistrate judge who conducted a conflict of law

analysis and concluded that Texas law should be applied, noting,

however, that the result would be the same under Louisiana law.

The magistrate judge determined that the Texas Wrongful Death Act

bars the Crowder Family’s claims and recommended granting the

defendants’ 12(b)(6) dismissal motion.


     3
         Id.

                                     4
     The district court first ruled that the magistrate judge had

made errors in his findings of fact; specifically, that he had

improperly relied on the Crowder Family’s first amended complaint

instead of their second amended complaint, which had been submitted

following the filing of the defendants’ 12(b)(6) motion.                           In their

second amended complaint, the Crowder Family had abandoned their

fraud claims and had added a claim of gross negligence.                                The

district court nevertheless concluded that its corrected findings

of fact did not undermine the substance of the magistrate judge’s

recommendation and dismissed the Crowder Family’s action.4                             The

Crowder Family timely filed a notice of appeal.

                                     II.   ANALYSIS

A.   STANDARD   OF   REVIEW

     We     review     de     novo   the   district        court’s    dismissal       of   a

complaint for failure to state a claim on which relief may be

granted.5       A    motion     to   dismiss       under    Federal    Rule    of    Civil

Procedure     12(b)(6)        “is    viewed       with   disfavor     and     is    rarely

granted.”6      The district court may not dismiss a case under rule

12(b)(6) “unless it appears beyond doubt that the plaintiff can

     4
       The district judge incorrectly identified the magistrate
judge’s basis for dismissing the appeal as res judicata. The
magistrate judge had concluded that the Crowder Family’s claims
were barred by the provisions of the Texas Wrongful Death Act.
     5
       See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164
(5th Cir. 1999).
     6
       Id. (quoting Kaiser Aluminum & Chem. Sales v. Avondale
Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982).

                                              5
prove no set of facts in support of his claim which would entitle

him to relief.”7

B.   APPLICATION OF THE TEXAS    AND   LOUISIANA WRONGFUL DEATH STATUTES   TO THE
     CROWDER FAMILY’S CLAIMS

     The district court applied Texas law in dismissing the Crowder

Family’s claims.       As we conclude that the Crowder Family’s claims

fail under the applicable laws of both Texas and Louisiana, a

choice of law determination is unnecessary to our decision today.

     1.      The Texas Wrongful Death Statute.

     The Texas Civil Practice and Remedies Code provides a cause of

action     for    “damages   arising    from   an   injury   that   causes    an

individual’s death if the injury was caused by the person’s or his

agent’s     or     servant’s   wrongful     act,    neglect,    carelessness,

unskillfulness, or default.”8          Texas law allows recovery “only if

the individual injured would have been entitled to bring an action

for the injury if the individual had lived or had been born

alive.”9     Texas courts have held the survivors’ wrongful death

cause of action to be derivative of the decedent’s cause of action,

so that any defense available against a decedent is available

against his survivors in a wrongful death suit.10

     7
       Id.       (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).
     8
          Tex. Civ. Prac. & Rem. Code Ann. § 71.002(b).
     9
          Tex. Civ. Prac. & Rem. Code Ann. § 71.003(a).
     10
       See Suber v. Ohio Med. Prod., Inc., 811 S.W.2d 646, 649
(Tex. App. — Houston 1991, writ denied) (“Due to the derivative

                                        6
       For example, prior to her death, the decedent in Suber v. Ohio

Medical Product, Inc., had instituted a tort action against six

defendants in Texas state court based on allegations of medical

malpractice.11    At trial, four of the six defendants had moved for

an   instructed    verdict,   which    was   granted,     but    the    decedent

recovered a judgment for damages against the remaining defendants.

All judgments were affirmed on appeal and became final.                        The

decedent’s death occurred subsequent to the finality of that

litigation.     Her heirs instituted another action —— this one for

wrongful death —— grounded in the same facts alleged in the

decedent’s malpractice action.             The survivors named the same

defendants whom the decedent had previously sued.               The defendants

filed motions for summary judgment which were granted by the trial

court.      On appeal, the Texas court of appeals affirmed, holding

that    the   survivors   stood   in   the   decedent’s    legal       shoes   and

therefore could not institute another action against the same

defendants on the same facts:


nature of the wrongful death action, Texas cases have held that
any defense to a decedent’s cause of action for his own injuries
is applicable in a subsequent action for wrongful death.”)(citing
Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex. 1977) (interspousal
tort immunity) and Thompson v. Fort Worth and R.G. Ry. Co., 97
Tex. 590, 80 S.W. 990, 991 (1904) (settlement and release)); see
also Slaughter v. Southern Talc Co., 949 F.2d 167, 173 (5th Cir.
1991) (citing Suber for the proposition that “[p]laintiffs in a
wrongful death action are in the procedural shoes of the
decedent, and defenses to the decedent’s personal injury action
are defenses to the wrongful death plaintiffs’ claim”).
       11
       811 S.W.2d 646 (Tex. App. — Houston 1991, writ denied)
(en banc).

                                       7
            [Decedent] Christy Suber pursued her action for personal
            injuries to judgment.    Thus, res judicata would have
            barred a second suit by Christy Suber for her injuries,
            since there would have been an identity of parties,
            issues and subject matter. . . . Because Christy Suber
            could not have brought another action if she had
            survived, [§ 71.003(a)] precludes appellants from
            maintaining a wrongful death action.12

     We reached a similar result in Delesma v. City of Dallas.13

Prior to his death, the decedent in Delesma had filed suit in a

Texas state court after he was shot at the Texas State Fair.       The

case was tried before a jury, which found in favor of the named

defendants and against the decedent.       The decedent did not appeal

the judgment, and it became final.         After decedent’s death, his

children filed a wrongful death action on the same facts and

against the same defendants who had been named by the decedent in

the first lawsuit. We affirmed the grant of the defendants’ motion

for summary judgment, holding that the Texas wrongful death statute

did not give the decedent’s wrongful death survivors any better

rights against these same defendants than the decedent himself had

at the time of his death.      Interpreting the predecessor to the

current Texas wrongful statute, we ruled that a successful defense

against a decedent’s cause of action vanquishes his survivors’

wrongful death claims grounded in the same transaction:

            The doctrine of res judicata provides such a defense in
            this case.    In Texas, res judicata means that “the
            judgment in the first suit precludes a second action by

     12
          Id. at 649-50 (internal citations omitted).
     13
          770 F.2d 1334 (5th Cir. 1985).

                                  8
            the parties and their privies not only on matters
            actually litigated, but also on causes of action or
            defenses which arise out of the same subject matter and
            which might have been litigated in the first suit.” . .
            . Since Delesma could have sued appellees under section
            1983 in his own court action, the judgment against him
            constituted res judicata. Article 4672 [predecessor to
            § 71.003(a)] and article 5525 make appellees’ defense
            against Delesma equally good against the claims of [the
            survivors].14


     Relying primarily on Suber and Delesma, American and American

Eagle insist that the doctrine of res judicata would bar Crowder

from asserting claims grounded in his physical examination, and

that this bar defeats the Crowder Family’s claims under the Texas

wrongful death statute.      We agree.

     Texas employs the transactional approach to res judicata.15

“The scope of res judicata is not limited to matters actually

litigated; the judgment in the first suit precludes a second action

by the parties and their privies not only on matters actually

litigated, but also on causes of action or defenses which arise out

of the same subject matter and which might have been litigated in

the first suit.”16       Any cause of action arising out of the same

transaction is barred.      In determining whether the transaction is

the same, courts consider and weigh “whether the facts are related

     14
          Id. at 1339.
     15
       See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631
(Tex. 1992).
     16
        Id. at 630 (emphasis in original) (quoting Texas Water
Rights Comm. v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.
1979)).

                                    9
in   time,    space,   origin,   or   motivation,   whether   they   form   a

convenient trial unit, and whether their treatment as a trial unit

conforms to the parties’ expectations or business understanding or

usage.”17

      Had Crowder brought the claims currently being asserted by the

Crowder Family as his wrongful death beneficiaries, the doctrine of

res judicata would have served as a successful bar to these claims;

therefore, under the Texas Wrongful Death Statute, the Crowder

Family’s claims are barred.           Questions of breach of express and

implied contract, promissory estoppel, and breach of fiduciary duty

were fully litigated in Crowder’s Texas lawsuits.         It is true that

Crowder never expressly pleaded a claim of gross negligence in his

suits against American or American Eagle, but that claim arises out

of the same subject matter, and is a claim that should have been

brought by Crowder in his state court suits.           Texas law bars the

Crowder Family’s action here.

      2.     The Louisiana Wrongful Death Statute.

      The Louisiana Civil Code creates a wrongful death cause of

action for specified family members of a decedent.18          Unlike Texas,

Louisiana courts have held that the rights of wrongful death




      17
           Id. at 631 (quoting Restatement (Second) of Judgments §
24(2)).
      18
           See La. Civ. Code Ann. art. 2315.2.

                                       10
beneficiaries        are      not    derivative     of    the   decedent’s     rights.19

Rather,      Civil     Code    Article    2315.2     “clearly       and   unambiguously

expresses       that     the        wrongful    death     action     compensates        the

beneficiaries for their own injuries suffered as a result of the

victim’s death.”20

       In Sellers v. Seligman, however, a Louisiana court of appeals

held    that    Article        231521    “does      not   provide     a    right   to     a

beneficiary’s survival action when the decedent fully litigated and

lost an action arising from the same alleged tort.”22                       The decedent

in Sellers had instituted an action against four manufacturers to

recover damages         for     injuries       suffered    as   a   result    of   having

contracted silicosis while working as a sandblaster/painter.                              A

jury returned a verdict in favor of the manufacturers.                        Following

the decedent’s death, his surviving sons instituted a wrongful

death action against the same four manufacturers.                         The action was

dismissed by the trial court which ruled that the claim had been

litigated previously.               The Louisiana court of appeals affirmed,

holding that, because “there was no offense” as a result of the




       19
       See Walls v. Am. Optical Corp., 740 So.2d 1262, 1274 (La.
1999) (“We do not consider the wrongful death action to be a
derivative cause of action.”).
       20
            Id. at 1269-70.
       21
            The statute litigated was the predecessor to Article
2315.2.
       22
            496 So.2d 1154, 1156 (La. App. 4th Cir. 1986).

                                               11
defendants’ being exonerated in the prior action, “there is no

wrongful death action available to the survivors.”23

     The Crowder Family argues that the more recent Louisiana

Supreme Court case of Walls v. American Optical Corp. abrogates the

reasoning of Sellers, so that their claims are not barred by the

final judgments in Crowder I and Crowder II.          There is language in

Walls that, when taken out of context, supports this view.                 The

Walls     court   stated   that   “the    wrongful   death   action   is    an

independent and distinct action that arises even in the absence of

a viable personal injury action by the direct tort victim and

compensates the beneficiaries for their own individual injury

arising out of the victim’s death.”24           Walls posed the question

whether wrongful death plaintiffs had a vested cause of action

prior to the enactment of a statute that, following its passage,

provided immunity to those defendants. The Louisiana Supreme Court

held that the wrongful death action did not vest prior to the

decedent’s death, and therefore the statute providing immunity to

the defendants was applicable to the plaintiffs’ claims.25             When

read in context, though, the better interpretation of Walls and a

subsequent Louisiana court of appeals case is that procedural bars

to a decedent’s claim do not extinguish a wrongful death action



     23
          Id.
     24
          Walls, 740 So.2d at 1274.
     25
          Id. at 1270

                                     12
because   they   arise   at   different   times   and   address   different

injuries;26 but that Walls cannot be read to establish the same rule

for the substantive issue of liability.

     The question of liability is the same in both a decedent’s

direct cause of action and his survivors’ independent wrongful

death cause of action brought against the same defendants and based

on the same facts.   The Walls court acknowledged this in cataloging

the differences between a survival action, which is derivative of

a decedent’s cause of action under Louisiana law, and a wrongful

death action which is independent:

           Although both actions arise from a common tort, survival
           and wrongful death actions are separate and distinct.
           Each right arises at a different time and addresses
           itself to the recovery of damages for totally different
           injuries and losses . . . .27

Thus, issues of liability that are decided against a decedent are

final as to issues of liability in a subsequent wrongful death

action —— a conclusion supported by Sellers and adopted by the

Restatement (Second) of Judgments § 46.28         A logical corollary is

     26
       See Rajnowski v. St. Patrick Hosp. of Lake Charles, 768
So.2d 88 (La. App. 3d Cir. 2000) (wrongful death action not
barred by prior case holding prescription barred decedent’s claim
because the wrongful death cause of action did not arise until
decedent’s death).
     27
       Walls, 740 So.2d at 1274 (quoting Taylor v. Giddens, 618
So.2d 834, 840 (La. 1993) (emphasis added).
     28
       See also   12 William E. Crawford, Louisiana Civil Law
Treatise § 5.21   (2000). But see K.D.D. Smith v. Cutter
Biological, 770   So.2d 392, 411 n. 11 (La. App. 4th Cir. 2000)
(speculating in   dicta that “[t]he Walls language is also
literally broad   enough that res judicata would not apply where a

                                    13
that when questions of fact were necessarily litigated on the

merits in the decedent’s case, his wrongful death survivors are

barred    from   re-litigating     those   same    factual    questions   in   a

subsequent wrongful death action.

     The Texas court of appeals, in Crowder I and Crowder II,

expressly rejected liability on the parts of American and American

Eagle, basing     these   merits    holdings      on   the   same   theories   of

liability asserted here by the Crowder Family.               The one exception

is the Crowder Family’s claim for gross negligence.                    Although

Crowder did not expressly plead any negligence claim against

American in Crowder I, the Texas appellate court held the suit to

be essentially a claim for negligence and ruled that there was

none.29   And, even though the state court in Crowder II did not


judgment against the decedent was rendered prior to death”).
     Louisiana is a part of the minority of jurisdictions,
identified in the Restatement (Second) of Judgments § 46, in
which a wrongful death action is construed as creating a cause of
action in favor of the beneficiaries that to some degree is
independent of the decedent’s claim. What this means in most of
the minority jurisdictions is that wrongful death beneficiaries
can recover supplemental damages to those that a decedent
recovered. Although not discussed by the Restatement, it also
appears to mean that a wrongful death action could be viable
despite the existence of some procedural bar that exists to a
decedent’s cause of action —— a result that would follow after
Walls. With the exception of one Ohio Court of Appeals decision
identified in the Reporter’s Note to the Restatement, the
independence of the wrongful death cause of action has not been
interpreted by courts to extend so far as to allow beneficiaries
to sue when a determination of no liability was made in the
decedent’s case against the same defendants.
     29
       See Crowder, 2000 WL 471520, at *2. “While there is a
difference between negligence and gross negligence, it is only a
difference of degree and not kind.” Resolution Trust Corp. v.

                                      14
expressly     consider    a   claim    of   gross     negligence,    it    too    made

findings of fact that would defeat liability in a claim of gross

negligence under either Texas or Louisiana law.                     In as much as

depecage,30    which     is    recognized      by     Louisiana     choice-of-law

jurisprudence,     could      result   in    application     of     the    Louisiana

wrongful death statute, followed by application of Texas law to the

Crowder     Family’s     substantive        claims,    we   analyze       the    gross

negligence standards of both Texas and Louisiana.

     In Texas, gross negligence includes two elements:                      (1) When

viewed objectively from the standpoint of the actor, his act or

omission must involve an extreme degree of risk, considering the

probability and magnitude of the potential harm to others, and (2)

the actor must have actual, subjective awareness of the risk

involved, yet proceed in conscious indifference to the rights,



Acton, 49 F.3d 1086, 1091 (5th Cir. 1995). In distinguishing
between negligence and gross negligence, we have stated that
“[g]ross negligence is substantially and appreciably higher in
magnitude than ordinary negligence.” Orthopedic & Sports Injury
Clinic v. Wang Lab., Inc., 922 F.2d 220, 224 n.3 (5th Cir.
1991)). Therefore, the finding by the court in Crowder I that
there was no negligence necessarily precludes any finding of
gross negligence.
     30
       Louisiana’s choice of law principles recognize the
concept of “depecage.” Under this doctrine, courts must employ
an issue-by-issue analysis which may result in laws of different
states being applied to different issues in the same dispute. See
La. Civ. Code Ann. art. 3515, cmt. (d). For example, even though
the question of which state’s wrongful death statute applies
could be viewed as pertaining to issues of loss distribution and
result in the application of one state’s law, the subsequent
question of liability could be viewed as pertaining to conduct
and safety and result in the application of another state’s law.

                                        15
safety, or welfare of others.31       The first element, “extreme risk,”

does not include remote possibilities of injury or even high

probabilities of minor harm; rather, a real likelihood of serious

injury to the plaintiff is required.32           The second element, “actual

awareness,”      requires   the   actor    to   know   about   the   peril,   but

demonstrate by his acts or omissions that he did not care.33

       “Under Louisiana law, gross negligence is willful, wanton and

reckless conduct that falls between intent to do wrong and ordinary

negligence.”34      Louisiana courts have defined gross negligence as

“the ‘want of even slight care and diligence’ and the ‘want of that

diligence which even careless men are accustomed to exercise.’”35

Gross negligence involves “the ‘entire absence of care’ and the

‘utter disregard of the dictates of prudence, amounting to complete

neglect of the rights of others.’”36 One Louisiana court has stated


       31
       See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921
(Tex. 1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23
(Tex. 1994).
       32
       See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778,
785 (Tex. 2001); Ellender, 968 S.W.2d at 921.
       33
            See Harrison, 70 S.W.3d 778, 785; Ellender, 968 S.W.2d at
921.
       34
       Houston Exploration Co. v. Halliburton Energy Serv.,
Inc., 269 F.3d 528, 531 (5th Cir. 2001) (citing Orthopedic &
Sports Injury Clinic, 922 F.2d at 224 n.3).
       35
       Ambrose v. New Orleans Police Dept. Ambulance Serv., 639
So.2d 216, 219 (La. 1994) (quoting State v. Vinzant, 7 So.2d 917,
922 (La. 1942)).
       36
       Id. at 219-20 (quoting Hendry Corp. v. Aircraft Rescue
Vessels, 113 F.Supp. 198, 201 (E.D. La. 1953)).

                                      16
that one is grossly negligent when he “has intentionally done an

act of unreasonable character in reckless disregard of the risk

known to him, or so obvious that he must be taken to have been

aware of it, and so great as to make it highly probable that harm

would follow.”37    “Mere inadvertence or honest mistake does not

amount to gross negligence.”38

     In Crowder II, the Texas court made the following findings of

fact:

            (a) [W]e have found no evidence that [American Eagle]
            had any knowledge of Crowder’s elevated blood pressure
            and cholesterol readings, utilized a secret nondisclosure
            policy, or even knew Crowder had not received his medical
            clearance at the time he was hired

            (b) The stamped form revealed nothing about Crowder’s
            physical examination results except that the MMIN was
            still needed.   It did not mention Crowder’s elevated
            blood pressure or cholesterol readings or indicate that
            additional blood pressure readings were required. There
            is simply no summary judgment evidence that either Wings
            West or AMR Eagle had knowledge of the elevated readings
            or intended to deceive Crowder regarding the results of
            his medical examination.

            (c) [T]here is no evidence that AMR Eagle or Wings West
            had a policy of nondisclosure with respect to the medical
            examination results.39

Given these factual findings, Crowder did not have a viable gross

negligence claim under either Texas or Louisiana law: Neither does

the Crowder Family.    These findings foreclose any conclusion that

     37
       Cates v. Beauregard Elec. Co-op., Inc., 316 So.2d 907,
916 (La. App. 3d Cir. 1975), aff’d, 328 So.2d 367 (La. 1976).
     38
          Houston Exploration Co., 269 F.3d at 532.
     39
          Crowder, 2003 WL 559402, at *2-3.

                                  17
American Eagle showed conscious disregard for Crowder’s peril, or

that it     demonstrated      an   utter   disregard   for   the   dictates   of

prudence, amounting to complete neglect of Crowder’s rights.

     The Crowder Family nevertheless asserts that their gross

negligence claim should be allowed to proceed because Crowder was

barred     by   the   Texas   Workers’     Compensation   Act   (“TWCA”)   from

bringing a gross negligence claim during his lifetime.                The TWCA

provides the exclusive remedy for an injured worker or his family

to recover damages from his employer for work-related injuries or

death.40    Although never addressed directly by the Texas Supreme

Court, several Texas courts of appeal have held that the TWCA and

the Texas Constitution allow a surviving spouse or child to bring

an independent claim for exemplary damages against an employer for

gross negligence that resulted in an employee’s death.41

     Assuming the interpretation of the TWCA by the Texas courts of

appeal is correct, § 408.001(b) can best be understood as providing

the surviving spouse and children with a cause of action when a

similar claim by the decedent would be or was blocked by the TWCA.42

     40
          Tex. Lab. Code. Ann. § 408.001(a).
     41
       See Tex. Const. art. XVI, § 26; Tex. Lab. Code. Ann. §
408.001(b); Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748,
756-58 (Tex. App. — San Antonio 2002, no writ); Perez v. Todd
Shipyards Corp., 999 S.W.2d 31, 33 (Tex. App. — Houston 1999,
pet. denied).
     42
       See Zacharie, 94 S.W.3d at 758 (even though statute of
limitations was a bar to any claims the decedent could have
brought, there was no bar to the children’s claims under §
408.001(b)); Frias v. Atlantic Richfield Co., 999 S.W.2d 97, 104

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But if, in a decedent’s case, questions of fact and questions of

liability were necessarily litigated on the merits, the surviving

spouse and children should be blocked from re-litigating those same

questions against the same defendants.   Even if we assume arguendo

that Crowder was covered by the TWCA, the determinations of no

liability and the findings of fact in Crowder I and Crowder II

foreclose the Crowder Family’s gross negligence claims.



                         III.   CONCLUSION

     For the foregoing reasons, the district court’s judgment

dismissing the Crowder Family’s action is, in all respects,

AFFIRMED.




(Tex. App. — Houston 1999, pet. denied) (Decedent’s election to
be protected under TWCA did not bar surviving spouse or children
from pursuing remedy under 408.001(b)); Smith v. Atlantic
Richfield Co., 927 S.W.2d 85, 88 (Tex. App. — Houston 1996, writ
denied) (same).

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