# McKesson Med.-Surgical Inc. v. Cleveland Supreme Court of Texas, No. 26-0005 **McKesson Med.-Surgical Inc. v. Cleveland, No. 26-0005 (Tex. June 26, 2026). Holding: Where a statute may be given more than one plausible reading and this Court has not decided the question, there is "a substantial ground for difference of opinion" under section 51.014(d)(1), and an actual conflict among courts of appeals is not required.** Practice areas: civil procedure, products liability ## Key issues - A trial court's own acknowledgment that a statute has more than one plausible reading which this Court hasn't yet resolved is, by itself, enough to show "a substantial ground for difference of opinion" supporting a permissive interlocutory appeal. - A court of appeals shouldn't withhold permissive appeal just because only one existing court of appeals decision has addressed the question and no square conflict yet exists. ## Factual History Jenifer Cleveland died shortly after an infusion of TPN electrolytes at Luxe MedSpa, and her family sued the spa and others, including McKesson Medical-Surgical Inc., a distributor that sold the electrolytes to the spa (Opinion, PDF p. 2). The plaintiffs allege that McKesson negligently permitted the spa's owner, who had no medical license, to buy TPN electrolytes through its online portal for shipment to the spa, where they have no known therapeutic use, and that the owner infused them far faster than the recommended rate (Opinion, PDF p. 2; Response to Petition (Respondent), PDF pp. 17-18). McKesson says it did not manufacture the product, that the order appeared to come from the spa's licensed medical director and that it only sold and delivered the product (Petition for Review (Petitioner), PDF p. 14). ## Procedural History McKesson moved to dismiss under Civil Practice and Remedies Code section 82.003(a), which shields a non-manufacturing seller from liability for harm caused by a product unless the claimant proves one of seven exceptions, and the trial court denied the motion on the view that the statute does not apply to sellers in cases that are not products liability actions, noting scant authority, while granting permission for an interlocutory appeal (Opinion, PDF pp. 2-3). The Fifth Court of Appeals denied permission in a November 18, 2025 opinion, concluding there was no substantial ground for difference of opinion because one other court of appeals had decided the question without conflicting with this Court's precedents (Opinion, PDF p. 3). The Supreme Court granted review and, without merits briefing or oral argument, reversed in a June 26, 2026 per curiam opinion (Opinion, PDF pp. 1, 6). ## Issues Presented - McKesson (Petition for Review (Petitioner), PDF p. 13): whether the court of appeals erred in concluding there is no substantial ground for difference of opinion on whether section 82.003(a) applies only in products liability actions, and, if there is one, whether an immediate appeal would materially advance the ultimate termination of the litigation. - The plaintiffs (Response to Petition (Respondent), PDF p. 14): whether the court of appeals applied the correct standard in finding no substantial ground for difference of opinion given the statute's consistent limitation to products liability actions, and whether an immediate appeal would not materially advance termination because McKesson is not an innocent seller and claims against multiple defendants remain. ## Standard(s) of Review A permissive appeal requires a controlling question of law on which there is a substantial ground for difference of opinion and an immediate appeal that may materially advance the ultimate termination of the litigation, and the Court reviewed whether the court of appeals correctly applied that two-part standard (Response to Petition (Respondent), PDF p. 19; Opinion, PDF pp. 1, 5). ## Legal Arguments **Whether there is a substantial ground for difference of opinion.** **McKesson (Petitioner):** The question is novel, difficult and little decided, since this Court has never addressed it and only *Lopez v. Huron* has, and *Lopez* is doubtful because it admittedly departed from section 82.003(a)'s plain language by adding "products liability action," which conflicts with this Court's plain-language precedents (Petition for Review (Petitioner), PDF pp. 17-25). In reply, McKesson says *Lopez*, the only case on point, expressly diverges from the statute's text and that the federal courts that followed it were bound to do so under *Erie* (Reply to Response (Petitioner), PDF pp. 2-3, 8-12). **The plaintiffs (Respondents):** The court of appeals correctly held that the question is settled and the disagreement is between the parties and not the courts, because Texas courts have applied section 82.003(a) only within the products liability framework for over twenty years and McKesson identifies no conflicting decision, and the plaintiffs' claims rest on independent negligence in McKesson's online ordering system, not a product defect (Response to Petition (Respondent), PDF pp. 2-3, 15, 19-20). **Whether an immediate appeal would materially advance the litigation.** **McKesson (Petitioner):** If McKesson prevails on the appeal, no claims against it survive, the trial court found that an appeal would resolve a dispositive question without delaying the case or discovery, and McKesson sought no stay (Petition for Review (Petitioner), PDF pp. 25-26). **The plaintiffs (Respondents):** An immediate appeal would not materially advance termination because McKesson is not an innocent seller and claims against multiple defendants remain (Response to Petition (Respondent), PDF pp. 14-16). ## Stated Reasons the Court Should Take the Case McKesson argued that the court of appeals' refusal of permissive appeal misapplied the statutory standard on a recurring and dispositive question of statutory construction that this Court has not resolved (Petition for Review (Petitioner), PDF pp. 16-17). ## Practice Area Tags civil-procedure, products-liability ## Procedural Posture/Vehicle Petition for review of a court of appeals' denial of permission to take a permissive interlocutory appeal; granted and decided without merits briefing or oral argument under Tex. R. App. P. 55.1 and 59.1, in a per curiam opinion issued June 26, 2026 (Opinion, PDF pp. 1, 6). ## Amicus Involvement None noted ## Holding Where a statute may be given more than one plausible reading and this Court has not decided the question, there is "a substantial ground for difference of opinion" under section 51.014(d)(1), and an actual conflict among courts of appeals is not required (Opinion, PDF pp. 1-4). Because a ruling for McKesson on section 82.003(a)'s scope would dispose of all pleaded claims against it, section 51.014(d)(2) is also satisfied (Opinion, PDF pp. 5-6). ## Standard of Review The Court reviewed whether the court of appeals correctly applied the two-part standard in section 51.014(d) and did not decide the underlying scope of section 82.003(a) (Opinion, PDF pp. 1, 4-6). ## Court's Reasoning The court of appeals wrongly treated the absence of a conflicting decision as pointing against the appeal: a conflict strongly suggests a substantial ground for disagreement but is not necessary when the case presents a potentially dispositive statutory question this Court has not resolved, and a paucity of authority weighs in favor of permitting the appeal when the statute has competing reasonable readings (Opinion, PDF p. 3). The trial court acknowledged more than one plausible reading, *Lopez* itself acknowledged that its conclusion may depart from the text, and the passing statement in *Amazon.com v. McMillan* that section 82.003 protects sellers from liability for "product defects" arose in a case that involved alleged defects and did not address the question (Opinion, PDF pp. 3-5). On the second element, the trial court found an appeal would resolve a dispositive question without delay, and the plaintiffs' arguments about overlapping discovery and the statute's exceptions fail because they pleaded no exception, so the statute, if it applies, disposes of every pleaded claim against McKesson (Opinion, PDF pp. 5-6). ## Disposition Court of appeals' judgment reversed, with direction that it accept the permissive appeal under Civil Practice and Remedies Code section 51.014(h) (Opinion, PDF pp. 2, 6). ## Vote Breakdown, Authorship, and Any Concurrence/Dissent Per curiam opinion (Opinion, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/26-0005. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.