Simien et al v. Walmart, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHELLEY SIMIEN AND JONATHON
SIMIEN,
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Plaintiffs,
VS.
W ALMART , INC., et al. ,
Defendants.
§ 	CIVIL ACTION NO. 4:25-CV-00352
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ORDER
Pending before this Court is Defendant Albaad USA, Inc. ' s ("Albaad USA") Motion for
Summary Judgment (Doc. No. 32), Defendant WALMART, INC.'s ("Walmart") Motion for
Summary Judgment (Doc. No. 33), and Albaad USA's Motion to Strike Plaintiffs' Expert
Testimony (Doc. No. 40). The Court is also in receipt of all responses and replies. (Doc. Nos. 38 ,
39 , 41--43). After careful review of the filings , summary judgment evidence, and the relevant legal
standards, this Court hereby GRANTS Albaad USA' s Motion for Summary Judgment (Doc. No.
32) and GRANTS Walmart's Motion for Summary Judgment (Doc. No. 33) under the "innocent
seller" rule in Chapter 82 of the Texas Civil Practice and Remedies Code.
I. 	Factual Background
This is a products liability case. On December 24 , 2022, Plaintiff Shelley Simien ("Mrs.
Simien") purchased Equate-brand tampons from a Walmart store. (Doc. No. 33-1 at 4). The Parties
agree that this brand of tampons was sold and distributed by Albaad USA and Walmart and was
manufactured and designed by Defendant Albaad Massuot Yitzhak, Ltd. ("Albaad Massuot") in
Israel. See, e.g. (Doc. No. 1-2 at 15). After using several of the tampons during her menstrual cycle
United States District Court
Southern District of Texas
ENTERED
May 15, 2026
Nathan Ochsner, Clerk
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without issue, Mrs. Simien claims that she experienced a problem with removing a tampon on the
third day of her cycle. (Doc. No. 33-1 at 4-7). Mrs. Simien stated that as she was pulling the
tampon out, "the string snapped" and "just came off the tampon." (Id. at 7, 10) . Without the string
to remove the tampon, Mrs. Simien stated that she had to use her "fingers to pull it out and it ...
had opened up and ... unraveled." (Id. at 7). After she felt that she had removed the entire tampon,
she put in another one and continued with her day. (Id.).
Soon thereafter, Mrs. Simien developed a fever, sore throat, and body aches. (Doc. No. 32-
2 at 3). She visited the local emergency department, but she tested negative for common viruses
and was soon discharged. (Id.). The next day, Mrs. Simien's condition worsened, and she
developed a full body rash. (Doc. No. 38 -1 at 19- 26). She decided to go to the prescription-refill
appointment that she had previously scheduled with her primary care physician. (Id.). When she
arrived at that office, Mrs. Simien stated that the nurses could not find a pulse and called an
ambulance. (Id.). Mrs. Simien was immediately placed into an intensive care unit, and she was
diagnosed with Staphylococcal Toxic Shock Syndrome likely caused by her recent tampon use.
(Id.) ("Clinical history is suggestive of staphylococcal toxic shock syndrome since patient recently
started using tampons and was previously healthy."). There is limited evidence in the record about
her condition when she was discharged from the hospital, but Mrs. Simien apparently recovered
from the infection.
On December 26, 2024, Mrs. Simien and her husband (collectively, "the Simiens") filed
this lawsuit in Harris County, Texas state court. (Doc. No. 1-2). Walmart timely removed the case
to this Court on the basis of diversity jurisdiction. (Doc. No. 1). The Simiens brought strict products
liability claims against Walmart, Albaad USA, and Albaad Massuot based upon claims of defective
design, inadequate safety testing, manufacturing defect, failure to warn, breach of implied
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warranty, and that it was an umeasonably dangerous product. (Id.) . Mr. Simien also brought a
separate loss of consortium claim against the Defendants. (Id.). While the Simiens never served
Albaad Massuot with this lawsuit, the Simiens contend that Walmart and Albaad USA are liable
as downstream sellers because th is Court lacks jurisdiction over Albaad Massuot, which is located
in Israel. 	(Doc. No. 	1-2 at 	15) ("Plaintiff will be unable to 	secure jurisdiction over the
manufacturer, Albaad Massuot Yitzhak Ltd., due to its foreign location. Defendants Walmart Inc.
and Albaad USA, Inc. are based in the United States and were involved in the distribution and sale
of the Equate tampons .... "). Walmart and Albaad USA have filed Motions for Summary
Judgment, (Doc. Nos. 32, 33), arguing that the case should be dismissed because Walmart and
Albaad USA are protected as "innocent sellers" under Chapter 82 of the Texas Civil Practice and
Remedies Code. The Court addresses the Motions below.
II. 	Legal Standard
Summary judgment is warranted " if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." FED . R. C1v. P.
56(a). "The movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253 , 261 (5th Cir. 2007) (citing Ce lotex Corp. v. Catrett, 477 U. S. 317, 322- 25 (1986)).
Once a movant submits a properly support ed motion, the burden shifts to the non-movant to show
that the court should not grant the motion. Ce lotex, 477 U.S . at 321 - 25. The non-movant then must
provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Ele c. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). It is the responsibility of the parties to
specifically point the Court to the pertinent evidence, and its location, in the record that the party
thinks are relevant. Malacara v. Garber, 353 F.3d 393 , 405 (5th Cir. 2003).
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A dispute about a material fact is genuine if "t he evidence is such that a reasonable jury
could return a verdict for the nonmoving party." A nderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The court must draw all reasonable inferences in the light most favorable to the
nonmoving party in deciding a summary judgment motion. Id. at 255 . The key question on
summary judgment is whether there is evidence raising an issue of material fact upon which a
hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248.
III. 	Analysis
Walmart and Albaad U SA contend that they are entitled to summary judgment because of
the "innocent seller" rule under Chapter 82 of the Texas Civil Practice and Remedies Code. 1
Though the First Amended Complaint is not the "model of clarity," Harvey v. Montiel, No. 25 -
40127, 2026 WL 483286, at * 1 (5th Cir. Feb. 20 , 2026), the Court finds that the Simiens brought
several "strict product liability" claims against the Defendants based on the "defective design,"
"inadequate safety testing," "manufacturing defect," "marketing defect/failure to warn," "breach
of implied warranty," "unreasonably dangerous product," "stream of commerce," and a "loss of
consortium" claim that is derivative of the products liability claims. (Doc. No. 1-2). Each of these
claims are listed under the "strict product liability" heading. (Id.). To the extent that each of these
claims are pled as separate causes of action, the Court interprets these claims as strict product
liability claims, and accordingly, these claims are governed by state tort law. Gilmore v. Shanghai
Xiaoxu Int'! Trade Co., Ltd., No. 4:24-CV-00275 , 2025 WL 2844765 , at *2 (E.D. Tex. Oct. 7,
2025). The Parties agree that Chapter 82 of the Texas Civil Practice and Remedies Code governs
these product liability claims. (Doc. Nos. 32 at 14 , 33 at 4, 38 at 12).
1 Walmart and Albaad USA raised other arguments in the Motions for Summary Judgment, but
the Court need not reach those issues.
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Section 82.003 of the Texas Civil Practice and Remedies Code provides the well-
established general rule that " [a] seller that did not manufacture a product is not liable for harm
caused to the claimant by that product unless the claimant proves" at least one of seven enumerated
exceptions. One of those exceptions is that a non-manufacturing seller may be held liable if "the
manufacturer of the product is . . . not subject to the jurisdiction of the court." Tex. Civ. Prac. &
Rem. Code§ 82.003(a)(7)(B). Section 82.003(c) provides the procedural mechanism to apply this
exception:
If after service on a nomesident manufacturer through the secretary of state in the
manner prescribed by Subchapter C, Chapter 17 , the manufacturer fails to answer
or otherwise make an appearance in the time required by law, it is conclusively
presumed for the purposes of Subsection (a)(7)(B) that the manufacturer is not
subject to the jurisdiction of the court unless the seller is able to secure personal
jurisdiction over the manufacturer in the action.
"Instead of using that procedural mechanism, claimants can take on the more burdensome task of
'proving the negative; ' that is , they can attempt to prove that the manufacturer' s contact with the
state is insufficient for a court to exercise personal jurisdiction over it. " Canter v. Big Lots Store s,
Inc., No. 3:13 -CV-856, 2014 WL 12531157, at *2 (N.D. Tex. Feb. 21 , 2014).
The Simiens allege that the above-quoted exception to the "innocent seller" rule applies
squarely to this case because the manufacturer, Albaad Massuot, is not subject to the jurisdiction
of this Court. Given that the Simiens admit that Walmart and Albaad USA were only downstream,
non-manufacturing sellers of the tampons, (Doc. No. 1-2 at 15), the Simiens rely on the jurisdiction
exception in§ 82 .003(a)(7)(B) to overcome the "innocent seller" rule. The burden is solely on the
Simiens to demonstrate that the Court lacks jurisdiction over Albaad Massuot. Dhaliwal v.
Vanguard Pharm. Mach. , Inc. , No. 4:08- CV -2452, 2009 WL 5195976, at *2 (S .D. Tex. Dec. 22 ,
2009) ("The burden rests with the claimant, and not the defendant, to prove the manufacturer is
not subject to the jurisdiction of the court." ).
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As outlined above, the Simiens could either establish the "conclusive presumption" that
Albaad Massuot is not subject to the jurisdiction of this Court under § 82.003(c) or "prove the
negative" that this Court cannot exercise personal jurisdiction over Albaad Massuot. Section
82 .003(c) establishes a conclusive presumption that the manufacturer is not subject to jurisdiction
if, and only if, "after service .. . through the secretary of state," "the manufacturer fails to answer
or otherwise make an appearance." There is no evidence that the Simiens attempted to effectuate
service on Albaad Massuot through the Texas Secretary of State or by any other means, such as
the Hague Convention, and therefore, this section is inapplicable to this case. 2
Without any showing that the Simiens attempted to serve Albaad Massuot, the Simiens are
only left with "proving the negative" that Albaad Massuot lacks sufficient contacts with this
jurisdiction for this Court to exercise jurisdiction over it. Canter, 2014 WL 12531157, at *2
(explaining that when§ 82.003(c) is inapplicable, the claimant bears the burden of "proving the
negative"). A nonresident manufacturer, like Albaad Massuot, is subject to the jurisdiction of a
Texas court if it can be properly served and has established minimum contacts with Texas such
that the "exercise of jurisdiction comports with traditional notions of fair play and substantial
justice." Moreno v. Allison Med., Inc., No. 3:20-CV-300, 2022 WL 3702061 , at *3 (S.D. Tex. Aug.
9, 2022, adopted by, 2022 WL 3703858 (S.D. Tex. Aug. 26 , 2022) (quoting BMC Software
Belgium, NV v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). The Simiens contend that "there is
at least a genuine issue of fact as to whether ... Albaad Massuot is subject to the jurisdiction of
this Court" because Albaad Massuot is located in Israel. (Doc. No. 38 at 13) .
2 In fact, the Simiens admit that there was no attempt to invoke the statutory presumption under §
82.003(c). (Doc. No. 38 at 15) ("Because Plaintiffs cannot invoke the statutory presumption tied
to that service provision, Plaintiffs must instead rely 	on evidence addressing jurisdiction
direct! y. ").
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To support their position, the Simiens provided filings in an umelated case in a different
jurisdiction. In 2023, Albaad Massuot filed a Motion to Dismiss for lack of personal jurisdiction
in the United States Bankruptcy Court for the District of Arizona. GP MI, Co. v. Albaad USA , Inc.,
No. 2:22-BK-150 (Bankr. D. Ariz. Apr. 7, 2023) (Doc. No . 17). The Motion to Dismiss contained
a sworn declaration by the Chairman of the Board of Directors of Albaad Massuot, Michael Lazer.
Id. (Doc. No. 17 -2). Lazer stated that Albaad Massuot "has never maintained any offices in the
United States," "manufactures sanitary products in Europe," and "does not distribute[] products to
retailers in the United States." Id. Lazer stated that Albaad Massuot owns Albaad USA, but that
Albaad USA "services its own contracts for production and distribution of products in the United
States." Id. The Simiens request this Court to take judicial notice of these statements as evidence
that Albaad Massuot lacks sufficient contacts with this Court.
While the Court takes judicial notice that this Motion to Dismiss and the declaration were
filed in a different court and in a totally unrelated case, the Court cannot take judicial notice of the
facts outlined in the sworn declaration as being true for the purpose of summary judgment
evidence. See FED. R. Evm. 201(b) ("The court may judicially notice a fact that is not subject to
reasonable dispute."); Payne v. City of Houston , 2025 WL 999085, at *2 ("[T]he district court may
take judicial notice of public records, though it may not take judicial notice of 'adjudicative facts'
subject to reasonable dispute."). Therefore, the Court does not accept the representations related
to Albaad Massuot's contacts (or lack thereof) with the United States as admissible summary
judgment evidence in this case. Even assuming, arguendo, that the Court could judicially notice
these facts, the United States Bankruptcy Court for the District of Arizona denied the Motion to
Dismiss and held that there was a sufficient initial showing that the court could, in fact, exercise
specific personal jurisdiction over Albaad Massuot "due to the continuous blurring of Albaad
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[Massuot] and Albaad USA into a singular entity" and the distribution of products in Arizona.
GPMI, Co. v. Albaad USA, Inc., No. 2:22-BK-150 (Banla. D. Ariz. Apr. 7, 2023) (Doc. No. 56 at
6). Not only did the Simiens make no attempt to serve Albaad Massuot, but they also made no
attempt to demonstrate to this Court why the very contacts that were offered in the Arizona court
would not lead this Court to the same conclusion reached in Arizona-that Albaad Massuot is
subject to jurisdiction.
The Simiens only provided this Court with the filings in the unrelated Arizona bankruptcy
proceeding to attempt to demonstrate that this Court does not have jurisdiction over Albaad
Massuot. Given that the Court does not accept "facts" allegedly presented before a separate court
in an unrelated case as admissible summary judgment evidence (especially since the Arizona court
found, based on the "facts" at the motion to dismiss stage, that jurisdiction did exist), the Simiens
are left without any competent judgment evidence to create a genuine dispute of material fact that
Albaad Massuot is not subject to this Court's jurisdiction. Without any evidence, the Simiens did
not meet their burden to prove that the exception to the "innocent seller" rule in§ 82.003(a)(B)(7)
applies to this case. Compare Moreno, 2022 WL 3702061, at *4 (granting summary judgment for
the sellers because claimants did not provide any evidence that the court could not exercise
jurisdiction over the manufacturer), with Dhaliwal, 2009 WL 5195976, at *3 (explaining that the
claimants provided documents to show that the manufacturer was not registered to do business in
the state, did not specifically market products in the state, and that none of the labels or packaging
was related to the manufacturer), and Canter, 2014 WL 1251157, at *3 (explaining that the
claimants provided records that the manufacturer was not registered with the state, does not
maintain a registered agent for services in the state, and does not have an office, employees, or
property in the state).
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Walmart and Albaad USA are unquestionably non-manufacturing sellers for the purposes
of the "innocent seller" rule in § 82 .003(a). There is no genuine dispute of material fact that the
"innocent seller" rule applies in this case, and as such, Walmart and Albaad USA are shielded
from liability in this lawsuit. The Motions to Dismiss (Doc. Nos. 32 , 33) are GRANTED.
IV. 	Conclusion
For the foregoing reasons, the Court hereby GRANTS Walmart's Motion for Summary
Judgment (Doc. No. 32) and GRANTS Albaad USA's Motion for Summary Judgment (Doc. No.
33). 	The claims against Walmart and Albaad USA are hereby 	dismissed with prejudice.
Additionally, the claims against Albaad Massuot are dismissed without prejudice for the failure to
serve. This case has been pending for over 500 days, and the Simiens have not even attempted to
effectuate service on Albaad Massuot. All other pending motions are denied as moot.
It is so ordered.
+--Signed on this the -1!:_ day of May 2026.
Andrew S. Hanen
United States District Judge
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