United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                   IN THE UNITED STATES COURT OF APPEALS                       April 12, 2007
                            FOR THE FIFTH CIRCUIT
                                                                          Charles R. Fulbruge III
                                                                                  Clerk

                                     No. 06-20800
                                   Summary Calendar



STEPHEN M. RYAN, Individually and as for others similarly situated,

                                  Plaintiff - Appellant,

v.

BROOKDALE INTERNATIONAL SYSTEMS INC.; E.I. DUPONT DE NEMOURS & CO.,
                                  Defendants - Appellees.




                                    --------------------
                      Appeal from the United States District Court
                      for the Southern District of Texas, Houston
                               USDC No. 4:06-CV-1819
                                    --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Stephen Ryan filed suit individually and on behalf of a

nationwide class of individuals similarly situated alleging breach of express warranty,
breach of implied warranty, and fraud against Defendants-Appellees Brookdale

International Systems, Inc. and E.I. du Pont de Nemours and Company (collectively

referred to as “Appellees”). These claims arise from the purchase of Emergency

Escape Smoke Hoods, manufactured by Appellees, and marketed as a personal air

filtration system to be used in fire and smoke emergencies. The product was supposed


      *
         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not be published and is not precedent except under the limited circumstances set forth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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to provide fifteen minutes of protection from soot, smoke and carbon monoxide. Each

device could only be used once and there was a shelf life of five or eight years

depending on the model.

       Ryan purchased three smoke hoods for a total of $199.50 plus $7.50 in

shipping. One year later, in cooperation with the U.S. Consumer Product Safety

Commission, Appellees voluntarily issued a “Suspend Use” advisory and recalled these

devises after discovering that some of the smoke hoods could fail to work properly by

exposing the user to carbon monoxide which could compromise their ability to escape

the fire threat. Pursuant to the recall, Appellees offered purchasers a prorated refund
based on the remaining shelf life of each smoke hood. Ryan claims he is entitled to a

full refund plus shipping since he never received a benefit from the product and

because the product sold by the Appellees was “useless.”

       The district court found that Ryan lacked standing to bring his claims and

dismissed the case. The court cited Rivera v. Wyeth-Ayerst Labs., 

(5th

Cir. 2002), to support its finding that Ryan had suffered no injury in fact. Ryan timely

appeals.

       Standing is a question of law that we review de novo. 

.

“To establish an injury in fact, plaintiffs must demonstrate ‘an invasion of a legally
protected interest which is. . . concrete and particularized.’” 

v.

Defenders of Wildlife, 

, 560 (1992)). Ryan never used his smoke hoods,

so there is no allegation of injuries arising from any defects in the product; in fact it is

unknown if his smoke hoods were in fact defective and would not have functioned

properly. Instead, Ryan’s only allegation of injury is the money he spent to purchase

and ship the product.

       In Rivera, the plaintiffs had purchased and used a pain relieving drug that was

later recalled due to adverse side effects. 

. The plaintiffs

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alleged the manufacturers failed to warn of the dangers of the drug and that the drug

was defective. 

that because the plaintiffs had not suffered from any of the

side effects, they had suffered no injury and had no standing for their product liability

claims. See 

       Like Ryan, the plaintiffs in Rivera were not injured by the product. The court in

Rivera noted that the plaintiffs’ best argument for an injury in fact was that they were

denied “the benefit of the bargain” due to them “under general, contract law type

principles.” 

The problem was that the plaintiffs did not allege a breach of

contract, opting instead for the no-injury product liability claims. 

explained,

       The confusion arises from the plaintiffs’ attempt to recast their product
       liability claim in the language of contract law. The wrongs they allege –
       failure to warn and sale of a defective product – are products liability
       claims. Yet, the damages they assert – benefit of the bargain, out of
       pocket expenditures – are contract law damages. The plaintiffs
       apparently believe that if they keep oscillating between tort and contract
       law claims, they can obscure the fact that they have asserted no concrete
       injury. Such artful pleading, however, is not enough to create an injury in
       fact.

(citation omitted).

       Like the plaintiffs in Rivera, Ryan’s best argument for an injury in fact is that he

received no benefit of the bargain from his smoke hoods and that he lost money in
purchasing them. Ryan, however, faces the same problem as the plaintiffs in Rivera

because he has based his suit on a no-injury product liability claim instead of a breach

of contract claim. Therefore we agree with the district court that Ryan has not showed

an injury in fact as to his claims for breach of express and implied warranties, and thus

has no standing regarding these claims.

        In Ryan’s complaint, he also alleges fraud. If there is sufficient evidence to

support this claim, he would have standing as a consumer and purchaser of this

product. Because the court dismissed the entire case for lack of standing, it did not

                                             3
reach the merits of the defendants’ motion to dismiss regarding the fraud claim.

Therefore we partially affirm the court’s dismissal of the case as it applies to the breach

of express and implied warranties. However we remand Ryan’s claim for fraud for

further consideration.



AFFIRMED IN PART, REMANDED IN PART.




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