Jesus De Los Santos, Jr., Individually and as Representative of the Estate of Jesus Francisco De Los Santos, and Juan De Los Santos, Individually v. Ford Motor Company and Marco Anthony Soliz, Jr. (Cross-Appellant)

Opinion

ACCEPTED 04-14-00562-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/22/2015 1:48:50 PM KEITH HOTTLE CLERK

NO. 04-14-00562-CV FILED IN IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 7/22/2015 1:48:50 PM KEITH E. HOTTLE * * * * * Clerk JESUS DE LOS SANTOS, JR., Individually and as Representative of the ESTATE OF JESUS FRANCISCO DE LOS SANTOS, and JUAN DE LOS SANTOS, Appellants; and MARCO ANTHONY SOLIS, JR., Cross-Appellant, v. FORD MOTOR COMPANY, Appellee * * * * * On Appeal from the 79th Judicial District Court Jim Wells County, Texas Trial Court Cause No. 11-08-50394-CV * * * * * APPELLANTS’ MOTION FOR REHEARING AND EN BANC MOTION FOR REHEARING * * * * * Respectfully submitted,

Brendan K. McBride Jeffrey G. Wigington State Bar No. 24008900 State Bar No. 00785246 Brendan.mcbride@att.net jwigington@wigrum.com MCBRIDE LAW FIRM Of Counsel to R. Reagan Sahadi GRAVELY & PEARSON, LLP State Bar No. 24042369 425 Soledad, Suite 600 rsahadi@wigrum.com San Antonio, Texas 78205 WIGINGTON RUMLEY DUNN (210) 472-1111 & BLAIR, LLP (210)881-6752 (Facsimile) 123 N. Carrizo St. Corpus Christi, Texas 78401 (361) 881-7500 (361) 884-0487 (Facsimile) TABLE OF CONTENTS Page

TABLE OF CONTENTS ............................................................................................................. 2 TABLE OF AUTHORITIES ........................................................................................................ 3 INTRODUCTION & SUMMARY ................................................................................................ 1 FACTS ....................................................................................................................................... 6 ARGUMENT & AUTHORITIES ................................................................................................. 9 A. Appellants’ Expert Specifically Identified The Manufacturing Defect; Cases Relied On By The Court Involved Failure To Identify A Specific Defect............ 10 B.The Majority’s Opinion Presents A Substantial Departure From The Established Law of Strict Liability. .................................................................................................. 17 CONCLUSION & PRAYER ...................................................................................................... 20 CERTIFICATE OF SERVICE ..................................................................................................... 23 CERTIFICATE OF COMPLIANCE............................................................................................. 23

2 TABLE OF AUTHORITIES Page Cases American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .......................................... 11 Casey v. Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014) ..... 4, 14, 15, 16 Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969) ............................................... 19 De Los Santos v. Ford Motor Co., No. 04-14-005632-CV, 2015 Tex. App. LEXIS 6102 (Tex. App. San Antonio June 17, 2015, no pet. h.) ........................................................ 2 Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992)...................................................................... 10 Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) .................... 10 Flying J Inc. v. Meda, Inc.,373 S.W.3d 680 (Tex. App. – San Antonio 2012, no pet.) 9, 10 Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) ................................................ 11, 14 Ford Motor Co. v. Pool, 688 S.W.2d 879 (Tex. App. – Texarkana 1985) .......................... 11 Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .................................................... 19 iLight Techs., Inc. v. Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. – Houston [1st Dist.] 2013, pet. denied) .................................................................. 4, 15, 16 LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632 (Tex. App. – Dallas 2012, pet. denied) .................................................................................................................................. 9 Olympic Arms, Inc. v. Green, 176 S.W.3d 567 (Tex. App. – Houston [1st Dist.] 2004, no pet.) ............................................................................................................................... 16, 17 State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9 (Tex. App. – San Antonio 2009, pet. denied) ................................................................................................................................ 10 Thiele v. Chick, 631 S.W.2d 526 (Tex. App. – Houston [1st Dist.] 1982, no writ) .......... 19 Triplex Communications Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995) ...................................... 10 Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979).............................................. 19

3 Rules TEX. R. CIV. P. 278 ............................................................................................................... 10

4 INTRODUCTION & SUMMARY

Appellant’s seek rehearing or, in the alternative, rehearing en banc, of the Court’s

opinion in this product liability case based on a manufacturing defect in the axle of

Ford pickup that allowed the axle to fracture, thereby causing a fatal rollover accident.

The trial court granted a directed verdict and refused to submit a manufacturing

defect theory for the jury’s consideration, instructing the jury solely on “design”

defects even though the pleadings and the evidence supported the submission of a

“manufacturing” defect claim. Given the standard of review applicable to a directed

verdict, the majority’s opinion in this case does not give proper and full consideration

to direct and circumstantial evidence that the axle of the Ford pickup in question was

defectively manufactured.

The manufacturing defect claim was supported by all of the following:

(1) Ford’s manufacturing process makes it possible for some of the axles to be manufactured with “embrittled” steel that causes subsurface intragranular fractures in the steel of those specific axles that become embrittled during manufacturing;

(2) The intragranular fractures in the steel can cause these defectively manufactured axles to fail in circumstances in which non-defective axles would not have failed.

(3) There was direct evidence that the specific axle in question had the specific type of subsurface cracking that results from embrittlement during Ford’s manufacturing process;

(4) There was also direct evidence that the catastrophic failure of the axle that resulted in this fatal rollover occurred because of this embrittlement and intragranular fracture of the steel;

1 (5) There was evidence that the axle fractured during a sideways slide when subjected to approximately 32,000 inch pounds of force before the vehicle rolled over, thereby causing the rollover; and,

(6) All of the parties and their experts agreed that the axle was intended to withstand at least 120,000 inch pounds of force without fracturing, and that if it fractured at 32,000 inch pounds during the sideways slide, then the axle was defective.

Justice Martinez was correct in her dissent that that this record contains more

than a scintilla of evidence to support Appellants’ claim that the axle was defectively

manufactured. The majority’s opinion depends on two mistaken conclusion about the

law and facts of this case.

First, the Court concluded that because Ford had no particular specification for

the brittleness of its axles then there could be no evidence the embrittled axle at issue

and the subsurface cracking that caused it to fail were a deviation from the “planned

output.” De Los Santos v. Ford Motor Co., No. 04-14-005632-CV, 2015 Tex. App.

LEXIS 6102, *11 (Tex. App. San Antonio June 17, 2015, no pet. h.)(Tab 1). However,

the law does not require a claimant to prove that the defect in the product that

renders it unreasonably dangerous under the “consumer expectations” test was in

conflict with a particular specification. If that were the law, manufacturers of

dangerous products would have a free pass specifically because they did not have

detailed specifications to ensure their products were reasonably safe for consumers.

This would effectively turn the consumer expectations test and the law of strict

2 liability on its head by rewarding manufacturers for not taking steps to ensure their

products are reasonably safe.

Rather, the law simply requires evidence that would allow reasonable jurors to

infer that the product deviated from Ford’s intended output. There was direct

evidence that this particular axle had subsurface cracks resulting from embrittlement

during the manufacturing process that caused it to catastrophically fail where axles

without this defect would not have failed. There are also circumstances from which

reasonable jurors could conclude Ford did not intend to produce its axles with

subsurface cracking that could cause the axle to fail when subjected to relatively low

forces in a sideways slide on a roadway.

Second, the majority mistakenly concluded that Appellants were relying solely

on the failure to meet a performance standard rather than identifying any particular

manner in which the product deviated from planned output. The majority’s

conclusion is incorrect. There was direct evidence that the axle in question had

subsurface cracking resulting from embrittlement during the manufacturing process.

The particular manufacturing defect at issue in this case was expressly and explicitly identified and

demonstrated to the jury with objective evidence. The evidence that the axle failed to meet the

expected performance standard – fracturing at 32,000 inch pounds when it should

have withstood up to 128,000 inch pounds – was relevant to show that the

manufacturing defect in this particular axle was the cause of its failure, which

otherwise would not have occurred had the axle not been defectively manufactured 3 and to act as additional circumstantial evidence of the product’s malfunction.

However, aside from its failure to perform as expected, there was direct evidence of

how and why the axle failed – direct evidence of a specific manner in which it

deviated from the axles Ford expected to produce.

The cases on which the majority relies are all distinguishable.1 In each of those

cases, the plaintiffs were relying on the failure of the product to perform without

being able to identify the specific manner in which the product deviated from the

intended output. Here – in stark contrast – there was more than a scintilla of

evidence from which reasonable jurors could conclude that this particular axle was

manufactured with subsurface embrittlement fractures in the steel that Ford did not

intend. Indeed, having heard the evidence in this case, the jury itself was expecting to

be instructed on manufacturing defect and sent out a written question to the trial

court asking if they could find a manufacturing defect. (CR2:462; RR13:216-217;

App. Tab 2)

Since this case involves review of a directed verdict, and there was more than a

scintilla of evidence that the death of Jesus De Los Santos was caused by a

manufacturing defect in the pickup’s axle, this case should be remanded for a new

trial. Appellants respectfully request the Court grant rehearing of this case and vacate

1 iLight Techs., Inc. v. Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. – Houston [1st Dist.] 2013, pet. denied); Casey v. Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014). 4 the majority’s opinion or, in the alternative, consider this case en banc, vacate the

Panel’s opinion, and remand this case for a new trial.

5 FACTS

Jesus Francisco De Los Santos died when the 2005 Ford F-150 pickup truck in

which he was a passenger rolled over on the evening of November 10, 2010.

(RR4:157) The pickup was rounding a curve when the driver overcorrected.

(RR4:109) The pickup went into a skid, during which the passenger-side rear axle

broke, causing the left rear wheel to completely detach from the pickup. (RR4:110,

141)

The investigating DPS officer, Mauro Varela, explained there was a large gouge

in the road where the truck began to roll. (RR4:110-113) Significantly, the gouge was

a long line that pointed in the direction of the vehicle roll, leading both Varela and the

State’s accident reconstructionist, Sergeant Jarrett Hardwick, to conclude that the axle

broke before the vehicle began to roll. (RR4:114-115) The broken edge of the axle dug

into the road surface as it made the gouge mark, causing the pickup to catapult into

the roll. (RR4:141, 207-210, 213-214) Hardwick, a Level 6 DPS crash investigator

explained to the jury: “During the vehicle’s movement around the curve as it’s

entering back on the road, I believe that the tire came off when the axle broke causing

it to gouge the roadway.” (RR4:213) Hardwick explained that there was so much

physical evidence at the scene to support this conclusion that reconstructing this

accident was “easy.” (RR4:209-210)

The De Los Santos plaintiffs’ retained accident reconstruction expert, William

Greenlees, concurred with the conclusions reached by the DPS investigation and 6 reconstruction that the axle broke and wheel separated from the vehicle before the

rollover. He explained that the right-rear wheel and tire separated from the vehicle

causing the shock absorber assembly to gouge into the road surface. (RR8:59, 64-65;

9:84)

Joel Salinas, another passenger inside the pickup, also testified that he felt and

heard a thump and “nasty cracking” sound as the pickup began to slide sideways

before rolling. (RR4:165)

Ford’s corporate representative testified that the axle should not ordinarily

break during a “yaw” or sideways slide on a roadway. (RR5:63-64) To determine

whether the axle broke because of a defect, it would be necessary to examine the

“fracture surface,” though he could not come up with any set of facts other than a

lateral impact to the axle that would cause it to break unless it was defective. (RR5:65-

67)

The De Los Santos plaintiffs’ engineering and metallurgy expert, Craig Clauser,

examined the fracture surface of the broken axle under a microscope, and had an

explanation for why the axle failed – it was manufactured in such a way as to

introduce a tiny crack in the metal – an “intragranular fracture,” which weakened the

strength of the axle causing it to fail under relatively ordinary operating conditions.

(RR6:89-94) Clauser explained to the jury how the lines in the broken surface of the

right, rear axle could be traced back under a microscope to identify the origin of the

break. (RR6:69). A careful examination of the origin of the fracture showed the 7 break originated in an intragranular crack in the hardened steel. (RR6:88) The

location of this crack, offset from the point on the axle that would have experienced

the highest stress and running vertically instead of horizontally relative to the direction

of the load on the axle, was the most likely cause of the axle’s fracture. (RR6:89, 110-

111) He could tell from the condition of the crack that this flaw in the metal had

predated the rollover incident in question. (RR6:110) Clauser’s review of peer-

reviewed articles supported his opinion that the particular physical evidence from his

microscopic examination of this axle – particularly the direction of the cracking

relative to the forces applied during the yaw and nature of the separation between the

grains in the steel – showed that it was broken as a result of an intragranular fracture.

(RR6:69-76)

The trial court granted a partial directed verdict, ruling that there was evidence

of a design defect, but finding that Clauser’s criticism was exclusively in the nature of

a design defect claim, and then refusing to allow the jury to be instructed about

manufacturing defect. (RR13:84-86, 91-92) When the De Los Santos plaintiffs

requested a charge that included a standard form PJC question on “manufacturing

defect,” the trial court refused the question and the jury was not instructed that they

could find for the De Los Santos plaintiffs on a manufacturing defect theory.

(RR13:118-119; CR2:348-359; SRR3)

The jury understood this was really a manufacturing defect case, and sent out a

question during deliberations asking: “Should we ignore the possibility of a 8 manufacturing defect? The charge only asks about design defect.” (CR2:462;

RR13:216-217) The jury answered “no” regarding the defective product question, and

since the court’s charge only instructed them regarding design defect, this answer

negated the only theory of liability the plaintiffs were permitted to submit. (CR2:350-

52)

ARGUMENT & AUTHORITIES

This case is before the Court as a result of a direct verdict and the trial court’s

refusal, over Appellants’ objection, to submit a question or instruction that would

allow the jury to consider Appellants’ manufacturing defect theory. Underlying both

problems is the single issue of whether there was factually sufficient evidence to

support the manufacturing defect claim based on the record. Applying the standard

of review for evidentiary sufficiency, there was more than a scintilla of evidence that

the axle contained a manufacturing defect that was the cause of the rollover and

resulting death of Jesus De Los Santos.

The standard of review for a directed verdict is a legal sufficiency or “no

evidence” standard of review. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642

(Tex. App. – Dallas 2012, pet. denied). In reviewing a directed verdict, the Court

must “decide whether there is any evidence of probative value to raise an issue of

material fact on the question presented,” and “review the evidence in the light most

favorable to the person suffering the adverse judgment.” Flying J Inc. v. Meda, Inc.,373

S.W.3d 680, 685 (Tex. App. – San Antonio 2012, no pet.) (quoting Exxon Corp. v. 9 Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011); State Office of Risk Mgmt.

v. Martinez, 300 S.W.3d 9, 12 (Tex. App. – San Antonio 2009, pet. denied). If a fact

issue is raised on a material question, a directed verdict is not proper and the issue

must go to the jury. Flying J at 685.

Moreover, a trial court must submit in its charge to the jury all questions,

instructions, and definitions raised by the pleadings and evidence. See Triplex

Communications Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995); see also TEX. R. CIV. P. 278

(“The court shall submit the questions, instructions and definitions in the form

provided by Rule 277, which are raised by the written pleadings and the evidence.”).

If there is some evidence to support a jury question and the court does not submit the

question, the court commits reversible error. Elbaor v. Smith, 845 S.W.2d 240, 243

(Tex. 1992). In determining whether a trial court should have submitted a question to

the jury, the reviewing court must examine the record for evidence supporting

submission and ignore all evidence to the contrary. Id. Conflicting evidence presents a

fact question for the jury. Id.

A. Appellants’ Expert Specifically Identified The Manufacturing Defect; Cases Relied On By The Court Involved Failure To Identify A Specific Defect.

Contrary to the Court’s opinion, Appellants did not rely on evidence of the

failure to meet a performance standard as proof of a manufacturing defect. Rather,

Appellants offered extensive direct and specific evidence of how this particular axle deviated from

the intended axles. This was principally through Appellants’ metallurgy expert, Craig 10 Clauser, who examined the fractured surface of the broken axle under a microscope,

and specifically explained why the axle failed in relatively low forces.

A plaintiff has a manufacturing defect claim when a finished product deviates,

in terms of its construction or quality, from the specifications or planned output in a

manner that renders it unreasonably dangerous. American Tobacco Co. v. Grinnell, 951

S.W.2d 420, 434 (Tex. 1997)(citing Ford Motor Co. v. Pool, 688 S.W.2d 879, 881 (Tex.

App. – Texarkana 1985), aff'd in part and rev'd in part on other grounds, 715 S.W.2d 629

(Tex. 1986)); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 41 n16 (Tex. 2007).

There was direct evidence of the manner in which the axle in this particular

vehicle contained a deviation from the planned output. Clauser explained the axle

was manufactured in such a way as to introduce a tiny crack in the metal – an

“intragranular fracture” – which weakened the strength of the axle causing it to fail

under relatively ordinary operating conditions. (RR6:89-94) From his investigation of

the fracture surface, he confirmed that the failure of the axle that caused the truck to

roll originated in this intragranular fracture in the steel. (RR6:88)

But that was not all. Clauser also explained how such an intragranular fracture

is an unintended consequence of “embrittlement” of the steel that occasionally occurs

during the manufacturing process. Clauser’s examination of the axle showed a

subsurface crack that he explained are caused by certain variables during the heat

treating process that yield weaker, embrittled axles like the subject axle and produced

this sort of subsurface fracture in the metal. (RR7:79-80) 11 Clauser explained that the nature of the crack showed this was a “result of the

material being embrittled” rather than a “ductile” or bending crack. (RR6:93) He

explained how he knew this was an embrittlement crack and not a ductile crack based

on his examination of the metal under a high-powered microscope. (Id.)

“Embrittlement” occurs because variables in the heat treating process create this

embrittled metal when there is too much phosphorous present:

Q. Okay. So that we have a clear answer to the specific question rather than just a general, why does .007 phosphorus – that’s not very much -- matter, but in the context of going to 1050 steel and the fact that it’s a hardened steel, is the difference between .010 phosphorus and .017 phosphorus, is it significant to the performance of the axle?

A. Yes, sir.

Q. And is it significant in the senses of -- what properties of the steel will it affect by having, as you are critical here, a defect in too much phosphorus in the design?

A. It embrittles it. It makes the steel brittle so that you don’t get -- you don’t get Herrera’s numbers. You get the -- half of that.

Q. And have you seen -- now I’m going to the analysis you did. Have you seen with your own -- and I don’t mean naked eye. It’s under microscopic view -- of how much magnification to see that it’s embrittled?

A. You started seeing it around 200, 300,000 times.

Q. And those are the slides you guys went through earlier with Mr. Wigington that show the difference between embrittled steel and -- the words I grabbed on is embrittled steel is the weaker steel.

A. Correct.

12 (RR7:88-89; 8:24-25) A reasonable jury could conclude that the heat treating process

caused the metal of this particular axle to be produced with unintended subsurface

cracking in the metal.

Clauser further explained that this embrittlement was not the intended output,

but was a deviation from the axles Ford intended to produce:

Q: And you’re saying that because of that composition of a recipe, when it goes through induction hardening, even though you do the induction hardening right, because the recipe is wrong, sometimes you believe you can have these little fractures that occur in subsurface [sic] of the axle, correct?

A: That – that is correct. . . . because the – the lower the phosphorus is, the more tolerant the steel is of deviations, variation in the – the induction hardening and tempering process . . .

Q: And because the recipe is wrong, sometimes, when you induction hardened [sic] or when you temper it, you could have embrittlement issues, and it makes it susceptible to embrittlement fractures?

A: Correct.

Q: It isn’t true, in your opinion, that every single axle will experience this problem?

A: That is correct.

Q: Only some of them?

A: Yes.

(RR8:24-25)

Thus, a manufacturing defect was not presumed by the mere happening of an

accident, nor solely because of the failure of the axle to meet an expected level of

13 performance as the majority mistakenly held. Rather, Clauser carefully examined the

axle and found direct, objective evidence that the root cause of its failure was an

intragranular crack in the metal that was not part of the intended output but that

sometimes can result when the amount of phosphorous in the steel recipe allows the

metal to be embrittled and cause the specific, actual physical defect he found and described in the

subject axle.

In fact, there was no dispute that there was subsurface cracking in the metal of

the axle – with Ford’s own expert, Dr. Juan Herrera, acknowledging that there was an

intragranular fracture in the metal of the axle, which he was unable to explain.

(RR13:30-31) Certainly if an axle with weakened fracture points in the metal were

part of the intended output it would be easy enough to explain that it was there

because Ford expected it to be there.

This is far more than the evidence in the cases cited and relied on by the Court.

In Casey, the court concluded that a violation of a performance standard “without

more” is insufficient to prove a manufacturing defect. The problem in that case was

the plaintiff’s failure to identify “a specific defect” as the cause of damages. Id. 77 F.

3d at 326 & n8. The plaintiff’s evidence in Casey was solely “result-oriented” and

“not manufacturing-oriented,” and thus gave no explanation as to the specific nature

of the alleged manufacturing defect in the product. Id. at 328. Here, by contrast, in

addition to the failure of the product to meet expected performance standards,

Clauser provided a lengthy and detailed “manufacturing-oriented” explanation of how 14 the heat treating process caused this particular axle to be produced in its embrittled

condition – different from and more dangerous than the other Ford axles.

Moreover, in Casey, the court concluded that there was no evidence that the

product performed any differently than any other product produced by Toyota, and

thus the claim could only be a design defect claim. Id. at 328-29 & n8. However, the

evidence here showed that this particular axle was weakened as a result of

embrittlement that occurred during the manufacturing process, making it fracture in

response to forces that regular, non-embrittled axles would have withstood. It was

different from, and more dangerous than, other axles produced by the same design

and manufacturing process.

In iLight, the plaintiff’s expert opined that there was extra solder causing a short

inside a circuit board, but offered no explanation of whether this was more or less

solder than called for in the product’s design specifications. Id. 414 S.W.3d at 848.

Since it remained possible that every board produced had this same dangerous

condition, there was no evidence that the particular board in question deviated from

the planned output or specifications. Id. Here, Clauser clearly explained that the

intragranular fracture that caused this particular axle to fail was a result of tolerances

within the manufacturing process that made it possible for this sort of defect to

sometimes occur. Clauser explained that most of Ford’s axles would not have this

defect.

15 Thus, unlike iLight where there was no evidence to demonstrate that the defect

was not an intended part of the design, here there was more than a scintilla of evidence

that this sort of intragranular fracture was not the intended output, but an occasional

defect that occurred during manufacture. And unlike Casey, the explanation for that

defect and its nature was not based solely on a failure to perform as expected, but was

rather clearly “manufacturing-oriented.” Casey, 77 F.3d at 328.

The evidence of a specific, identifiable manufacturing defect in this case is

considerably more what the plaintiffs produced in Casey or iLight. Clauser identified a

specific, tangible manufacturing defect – the steel of this axle was embrittled during

the manufacturing process (specifically during the heat treating) resulting in a

particular, objective deviation – an intragranular fracture in the steel of this particular

axle was the cause of its failure. Thus, the majority is simply mistaken about the

record. This was not an attempt to rely solely on the failure to meet a performance

standard as circumstantial evidence of a manufacturing defect without identifying the

Remarkably similar evidence has been found sufficient to support a

manufacturing defect finding. For instance, in Olympic Arms, Inc. v. Green, 176 S.W.3d

567, 578 (Tex. App. – Houston [1st Dist.] 2004, no pet.), the theory was that the metal

recipe used by the manufacturer for a rifle barrel made it possible for a certain type of

weakness to form in the barrel during the manufacturing. Finding this was sufficient

evidence to support a jury’s manufacturing defect finding, the court explained: 16 Here, the record contains evidence that Olympic intended some inclusions to be present in the steel because the inclusions served a purpose. John Slater, Olympic’s expert, explained that manufacturers deliberately add sulfur to stainless steel during the formation process to make the steel easier to machine. Without the addition of sulfur, stainless steel can be “extremely difficult” to machine, and the inclusions allow the steel to become “easily machinable.” In asking for judgment notwithstanding the verdict, however, Olympic ignored McClelland's testimony regarding the correlation between the amount of sulfur and the resulting number of inclusions and the evidence suggesting that Olympic’s barrel failed due to the presence of too many inclusions. Moreover, O'Day testified that he had witnessed another Olympic barrel fail shortly after Green's. O’Day sold that barrel around the time that he built Green's rifle. O’Day had that barrel tested, and the results of the analysis revealed that the steel in that barrel was also "full of inclusions," causing the barrel to split.

Id. at 578.

There was evidence that this defect made the subject axle different from and

more dangerous than axles that were not manufactured with subsurface cracking.

Finally, there was evidence that the failure of the axle during this sideways slide at

relatively low forces started with and was caused by the specific manufacturing defect

identified by Clauser. The jury should have been asked to determine whether there

was a manufacturing defect in the axle.

B. The Majority’s Opinion Presents A Substantial Departure From The Established Law of Strict Liability.

One particularly troubling aspect of the majority’s opinion in this case is the

implication that a plaintiff cannot prove a deviation from planned output without

some direct evidence of a standard set by the manufacturer. There are two problems

with the majority’s reasoning in that regard. First, it violates the well-established rule 17 that manufacturing defects (like any fact issue in Texas) can be established by

circumstantial evidence. Second, it turns the protections intended by strict product

liability actions on their head by relieving a manufacturer of liability for unreasonably

dangerous products when the manufacturer sets no standards to assure its products

are reasonably safe.

In this case, the evidence showed that Ford’s “recipe” for the steel in its axles

contained enough phosphorous that it enabled axles to occasionally be produced in an

“embrittled” state prone to the type of intragranular fracture this axle showed. Ford

tried to equivocate between its “hardness” standard and the products brittleness, but

even its own corporate representative conceded these were different risks and that

Ford had no standard for testing the brittleness of the steel in its axles.2 Taking the

lack of any standard for brittleness as its jumping off point, the majority concluded

that there was no evidence the axle deviated from the planned output – despite

evidence that embrittled axles were only an occasional occurrence in the production

process. The majority’s reasoning sets a dangerous precedent and changes the

standards for proof in manufacturing defect cases under Texas law.

“Circumstantial evidence is probative evidence as to whether a product was

defectively manufactured.” Thiele v. Chick, 631 S.W.2d 526, 530 (Tex. App. – Houston

2 This issue was a large focus of the oral argument in this case and was addressed with numerous citations to the record in a post-submission letter brief. In the interests of brevity, the post- submission letter, which includes quotations and references from the record regarding the difference between “hardness” and “brittleness” and the lack of any standard at Ford related to brittleness, is attached in the appendix, Tab 3, to this Motion for Rehearing. 18 [1st Dist.] 1982, no writ); see also Turner v. General Motors Corp., 584 S.W.2d 844, 848

(Tex. 1979); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). In Darryl, the

Texas Supreme Court wrote:

To exclude circumstantial evidence that the product was defective at the time of the sale would frustrate the beneficial purposes of the doctrine. It would be equally difficult, if not impossible, for the plaintiff to rebut by direct evidence all of the conceivable posibilities (sic) which would account for the defective condition other than the existence of the defect at the time of the sale. Such direct evidence should not be required, particularly when dealing with a latent defect.

Id. at 632; see also Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)(“Both

direct and circumstantial evidence may be used to establish any material fact.”).

The lack of a brittleness standard does not and cannot preclude the finding that

the product was still unreasonably dangerous because it was more brittle and prone to

intragranular fracture than Ford intended. A reasonable jury could infer from the

following circumstances that the axle was not as Ford intended:

(1) The manufacturing method used by Ford makes it possible for some (but not all) of its axles to be manufactured in an “embrittled” state leading to the formation of subsurface cracks in the steel of those specific axles that become embrittled during manufacture;

(2) This subsurface cracking in the steel can cause these defectively manufactured axles to fail in circumstances in which non-defective axles would never fail;

(3) There was direct evidence that the axle in this case had the precise sort of subsurface cracking that results from embrittlement during manufacturing;

19 (4) There was direct evidence that the catastrophic failure of the axle occurred at the site of and was caused by this subsurface cracking in the steel;

(5) There was evidence that the axle fractured during a sideways slide when subjected to approximately 32,000 inch pounds of force before the vehicle rolled over, thereby causing the rollover; and,

(6) All of the parties and their experts agreed that the axle was intended to withstand at least 120,000 inch pounds of force without fracturing, and that if it fractured at 32,000 inch pounds during the sideways slide, then the axle was defective.

Thus, there was circumstantial evidence both that the product malfunctioned under

circumstances in which it was not supposed to malfunction and evidence from which

a reasonable jury could deduce the specific defect in the manufacture that caused it to

so fail and that Ford did not intend to produce axles with embrittled steel like the axle

at issue.

The majority clearly erred in not considering these circumstances and in relying

far too heavily on Ford’s lack of any brittleness standard. The approach taken by the

majority in this case presents the very real danger of changing Texas law to give an

advantage to product manufacturers specifically for not developing standards to ensure

reasonably safe products end up in the hands of consumers. That is not Texas law,

and it should not become Texas law.

CONCLUSION & PRAYER

The majority’s opinion is based on conclusions about the evidence that are at

odds with the record. Given the narrow standard of review that prohibits the Court

20 from substituting its view of the evidence for that of a jury, and that prohibits a

directed verdict where there is more than a scintilla of evidence to support the claim,

the majority was mistaken in concluding there was not legally sufficient evidence to

support the submission of a manufacturing defect theory to the jury.

A review of the whole record shows both direct and circumstantial evidence

that the axle deviated from the planned output in a very specific way, and that this

particular defect was the cause of the failure of the axle that would not have otherwise

happened.

The Court should grant rehearing, vacate its opinion and judgment in this

matter and reverse and remand this case for a new trial. In the alternative, should the

Panel not grant rehearing, the Court should rehear this case en banc, vacate the

majority’s opinion and judgment and issue a new opinion and judgment reversing the

directed verdict and judgment and remanding the case for a new trial.

Respectfully submitted,

________________________________ Brendan K. McBride State Bar No. 24008900 brendan.mcbride@att.net THE MCBRIDE LAW FIRM Of Counsel to GRAVELY & PEARSON, L.L.P. 425 Soledad, Suite 620 San Antonio, Texas 78205 (210) 472-1111 Telephone

21 (210) 881-6752 Facsimile

And

Jeffrey G. Wigington State Bar No. 00785246 jwigington@wigrum.com R. Reagan Sahadi State Bar No. 24042369 rsahadi@wigrum.com WIGINGTON RUMLEY DUNN & BLAIR, LLP 123 N. Carrizo St. Corpus Christi, Texas 78401 (361) 881-7500 (361) 884-0487 (Facsimile)

COUNSEL FOR APPELLANTS, JESUS DE LOS SANTOS, JR. INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JESUS FRANCISCO DE LOS SANTOS AND JUAN DE LOS SANTOS

22 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded on this 22nd day of July, 2015 to Appellee’s and Cross-appellant’s counsel of record via email and by electronic service through Texas.gov.

____________________________________ Brendan K. McBride

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief is in compliance with the rules governing the length of briefs prepared by electronic means. The brief was prepared using Microsoft Word 2010. According to the software used to prepare this brief, the total word count, including footnotes, but not including those sections excluded by rule, is 5,312. The text of the body of this brief is in the Garamond font, size 14pt. The footnotes are produced in Garamond 12pt. font.

23 NO. 04-14-00562-CV IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT SAN ANTONIO, TEXAS

* * * * * JESUS DE LOS SANTOS, JR., Individually and as Representative of the ESTATE OF JESUS FRANCISCO DE LOS SANTOS, and JUAN DE LOS SANTOS, Appellants; and MARCO ANTHONY SOLIS, JR., Cross-Appellant, v. FORD MOTOR COMPANY, Appellee * * * * * On Appeal from the 79th Judicial District Court Jim Wells County, Texas Trial Court Cause No. 11-08-50394-CV * * * * * APPENDIX TO APPELLANTS’ MOTION FOR REHEARING AND EN BANC MOTION FOR REHEARING

TAB 1: Court’s Opinion and Dissent by Justice Martinez.

TAB 2: Written Question From Jurors During Deliberations.

TAB 3: Appellants’ Post-Submission Letter Brief Detailing Record Citations Regarding “Hardness” and “Brittleness” Standards.

24 TAB 1 No Shepard’s Signal™ As of: July 22, 2015 11:49 AM EDT

De Los Santos v. Ford Motor Co. Court of Appeals of Texas, Fourth District, San Antonio June 17, 2015, Delivered; June 17, 2015, Filed No. 04-14-00562-CV

Reporter 2015 Tex. App. LEXIS 6102

Jesus DE LOS SANTOS Jr., Individually and as LexisNexis® Headnotes Representative of the Estate of Jesus Francisco De Los Santos, Deceased, Juan De Los Santos, Individually, and Civil Procedure > Trials > Judgment as Matter of Law > Mark Soliz Jr., Appellants v. FORD MOTOR COMPANY, Directed Verdicts Appellee Civil Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence Prior History: [*1] From the 79th Judicial District Court, Jim Wells County, Texas. Trial Court No. 11-08-50394-CV. HN1 A trial court may instruct a verdict in favor of a Honorable Richard C. Terrell, Judge Presiding. defendant if a plaintiff fails to present any evidence that raises a fact issue on the material questions in a suit or if the Disposition: AFFIRMED. evidence conclusively proves a fact that establishes a movant’s right to judgment as a matter of law. When Core Terms determining whether a directed verdict is properly granted, an appellate court applies a legal sufficiency or no evidence standard of review. Under this standard, the appellate court axle, manufacturing defect, manufactured, crack, decides whether there is any evidence of probative value to specifications, directed verdict, truck, deviated, unintended, raise an issue of material fact on a question presented, and planned, output, recipe, design defect, battery, trial court, the appellate court reviews the evidence in a light most steel, rear, no evidence, brittleness, pet, configuration, favorable to a person suffering an adverse judgment. In scintilla, pounds, loads other words, the appellate court must determine whether a nonmovant produces more than a scintilla of probative Case Summary evidence to raise the fact issue. More than the scintilla of evidence exists when the evidence rises to a level that will enable reasonable, fair-minded persons to differ in their Overview conclusions. The directed verdict is not proper when the nonmovant brings forth more than the scintilla of probative HOLDINGS: [1]-Court did not err in granting a directed evidence, as viewed in the light most favorable to the verdict in favor of the automobile manufacturer on the nonmovant, to raise a genuine issue of material fact; in those manufacturing defect claim because the injured motorists cases, an issue must go to a jury. The appellate court can failed to produce any evidence to establish that the axle consider any reason the directed verdict should be granted, deviated from the manufacturer’s specifications or planned even if a reason is not stated in a party’s motion. output or that the manufacturer treated the axle in an unintended manner or manufactured the axle in an Torts > Products Liability > Types of Defects > Manufacturing unintended configuration. Defects Evidence > Types of Evidence > Circumstantial Evidence Outcome Evidence > ... > Testimony > Expert Witnesses > General Overview Judgment affirmed. HN2 A manufacturing defect exists when a product deviates, in its quality or construction, from the specifications or Page 2 of 6 2015 Tex. App. LEXIS 6102, *1

planned output in a manner that makes it unreasonably AGUILAR LAW FIRM, PC, Corpus Christi, TX; Michael dangerous. A plaintiff must prove the product is defective W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, when it leaves the hands of a manufacturer and that the TX; Jaime A. Saenz, Colvin, Chaney, Saenz & Rodriguez, defect is a producing cause of the plaintiff’s injuries. The L.L.P., Brownsville, TX. plaintiff need not identify exactly how the defect comes into being, only that the defect can be traced to the manufacturer. Judges: Opinion by: Marialyn Barnard, Justice. Dissenting Furthermore, neither direct evidence nor expert testimony is Opinion by: Rebeca C. Martinez, Justice. Sitting: Karen required to establish the existence of the manufacturing Angelini, Justice, Marialyn Barnard, Justice, Rebeca C. defect. Often, the manufacturing defect can be proven only Martinez, Justice. by circumstantial evidence, which is evidence that allows one to infer a fact based on the circumstances shown by a Opinion by: Marialyn Barnard proponent of the fact.

Torts > Products Liability > Types of Defects > Manufacturing Opinion Defects MEMORANDUM OPINION HN3 For purposes of a manufacturing defect claim, evidence that a product deviates from a performance standard is not AFFIRMED evidence that the product deviates from its specifications or planned output. This is an appeal from a directed verdict in favor of Ford Motor Company (″Ford″) in a products [*2] liability case.1 Torts > Products Liability > Types of Defects > Manufacturing On appeal, Jesus De Los Santos Jr., Individually and as Defects Representative of the Estate of Jesus Francisco De Los HN4 To prove a manufacturing defect claim, a plaintiff Santos, Juan De Los Santos, and Mark Soliz Jr.2 (collectively must present evidence of a product’s deviation from ″Appellants″) raise a single issue, contending the trial court specifications or planned output. erred in granting a directed verdict in favor of Ford on Appellants’ manufacturing defect claim. We affirm the trial Torts > Products Liability > Types of Defects > Manufacturing court’s judgment. Defects BACKGROUND HN5 In the absence of evidence of a standard, evidence that a product is treated in an unintended manner can establish a One evening, Mark Anthony Soliz Jr. was driving his manufacturing defect claim. family’s 2005 Ford F-150 Super Crew pickup truck down a county road. Three of his friends, Joel Salinas and brothers, Counsel: For APPELLANT: Jeffrey G. Wigington, Jesus Francisco De Los Santos (″J.F. De Los Santos″) and Wigington Rumley Dunn & Blair L.L.P., Corpus Christi, Juan De Los Santos, [*3] were riding with him. Juan De Los TX; Richard Sahadi, Corpus Christi, TX; Baldemar F. Santos was seated in the front passenger seat and J.F. De Gutierrez, Law Offices of Baldemar Gutierrez, P.C., Alice, Los Santos and Mr. Salinas were seated in the left and right TX; Brendan K. McBride, Gravely & Pearson, San Antonio, rear passenger seats, respectively. The group was on its way TX; F. Blake Dietzmann, Law Office of F. Blake Dietzmann, to Mr. Salinas’s house when Mr. Soliz rounded a curve at an San Antonio, TX. ″unsafe speed,″ nearly swerving off the road. In an effort to prevent the truck from veering off the road, Mr. Soliz For APPELLEE: Allyson Ho, Morgan, Lewis & Bockius overcorrected, steering the truck sharply to the left. The LLP, Dallas, TX; Denton Nichols, Morgan, Lewis & Bockius truck skidded, rolled over onto the passenger side, and LLP, Houston, TX; Douglas A. Allison, Law Offices of landed upside down. Mr. Soliz, Mr. Salinas, and Juan De Douglas Allison, Corpus Christi, TX; Guadalupe Aguilar, Los Santos survived the accident without injury; however,

1 The directed verdict was based on a manufacturing defect claim. Issues regarding an alleged design defect were submitted to the jury, which found in favor of Ford. The portion of the judgment relating to the design defect was not appealed. 2 Although Mark Soliz Jr. identifies himself as a ″cross-appellant,″ he is, in reality, an appellant. See TEX. R. APP. P. 3.1 (defining ″appellant″ as ″a party taking an appeal to an appellate court″). In his brief, Mr. Soliz adopts and fully incorporates the arguments of appellants Jesus De Los Santos Jr. and Juan De Los Santos. Page 3 of 6 2015 Tex. App. LEXIS 6102, *3

J.F. De Los Santos, who was not wearing his seatbelt, was the wheels slammed down on the asphalt after the truck ejected through the left rear window and died at the scene. rolled over. Dr. Herrera also testified he sent the axle to an During the accident investigation, it was discovered that the independent lab for testing. The lab performed several tests, right rear wheel assembly had broken and separated from and each test confirmed the axle conformed to Ford’s the truck, causing the right rear wheel to detach from the specifications. Dr. Herrera stated the tests established the truck. amount of phosphorus in the axle, 0.017 percent, was within Ford’s specifications, which required axles [*6] to contain Jesus Francisco De Los Santos Jr. and Juan De Los Santos no more than 0.03 percent of phosphorus, as well as within filed suit against Ford on theories of strict products liability, the Society of Automotive Engineers’ (″SAE″)3 breach of implied warranties, and negligence, alleging the specifications, which required axles to contain no more than truck’s right rear wheel-to-axle assembly was defectively 0.04 percent. Therefore, the axle was not defective, manufactured and designed. In addition [*4] to their claims suggesting the crack was sustained as a result of the roll against Ford, Jesus Francisco De Los Santos Jr. and Juan De over. Los Santos filed suit against Mr. Soliz and Mr. Soliz’s father, alleging negligence. The Solizes then filed suit After the parties rested, Ford moved for a directed verdict against Ford, also alleging Ford was liable for the defective on, among others, the manufacturing defect claim, arguing manufacture and design of the right rear wheel-to-axle Mr. Clauser’s testimony related to the design of the axle assembly. At trial, the core of the dispute centered on when rather than an alleged manufacturing defect. According to and why the right rear wheel assembly broke and separated Ford, Mr. Clauser specifically failed to identify how the axle from the truck. The theory presented by Appellants was that deviated from Ford’s specifications as required to sustain a the axle broke before the truck rolled over because of a manufacturing defect claim. The trial court granted Ford’s crack that developed during the manufacturing process. motion for directed verdict on the manufacturing defect According to Appellants, because of the crack, the axle was claim and submitted to the jury only issues relating to the more vulnerable than it normally would have been when design defect claim. The jury found there was no design under pressure. defect, and the trial court rendered a take-nothing judgment based on the jury’s verdict and the directed verdict. This In support of their manufacturing defect claim, Appellants appeal [*7] followed. offered the testimony of an engineering and metallurgy expert, Craig Clauser. According to Mr. Clauser, the axle ANALYSIS failed, i.e., broke, because of a subsurface crack, which was the result of brittle steel. Mr. Clauser testified he analyzed On appeal, Appellants contend the trial court erred in the broken axle and found a tiny crack in the metal. It was granting the directed verdict in favor of Ford on their his belief the crack weakened the strength of the axle and manufacturing defect claim. According to Appellants, they caused it to fail. He further opined that based on the location produced evidence to support their claim that the axle was [*5] and nature of the crack, the crack predated the rollover defectively manufactured. In response, Ford argues there is and, in fact, caused the rollover. Mr. Clauser also testified he no evidence of a manufacturing defect because: (1) the believed the type of steel Ford used for its axles contained evidence Appellants produced related to an alleged design a high phosphorus level, and during the heat treating defect as opposed to a manufacturing defect; and (2) Mr. process, the axle became ″embrittled″ and thus, more Clauser’s testimony was unreliable, thereby constituting no susceptible to cracking. He further opined that he believed evidence. a design defect existed, but the root problem stemmed from the manufacturing process. Standard of Review

Ford presented its own expert, Dr. Juan Herrera, a mechanical HN1 A trial court may instruct a verdict in favor of a and metallurgical engineer, to testify about the axle’s defendant if the plaintiff fails to present any evidence that fracture. According to Dr. Herrera, the crack in the axle did raises a fact issue on the material questions in the suit or if not predate the accident, nor was the crack a result of the the evidence conclusively proves a fact that establishes the truck’s initial slide. Rather, Dr. Herrera testified the crack in movant’s right to judgment as a matter of law. Prudential the axle was a direct result of the rollover, occurring when Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77

3 According to the evidence at trial, SAE standards are internationally recognized for their role in ensuring safety, quality, and effectiveness of products in the mobility engineering industry. Page 4 of 6 2015 Tex. App. LEXIS 6102, *7

(Tex. 2000); Ibarra v. Nat’l Const. Rentals, Inc., 199 S.W.3d At trial, Appellants relied on the expert testimony of Mr. 32, 37 (Tex. App.—San Antonio 2006, no pet.) When Clauser to prove the existence of a manufacturing defect determining whether a directed verdict was properly granted, with regard to the axle. Mr. Clauser testified he analyzed the we apply a legal sufficiency or no evidence standard of broken axle and found a tiny subsurface crack in the metal. review. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, According to Mr. Clauser, the crack, based on its location 642 (Tex. App.—Dallas 2012, pet. denied); Ibarra, 199 and nature, more than likely caused the rollover. Mr. Clauser S.W.3d at 37. Under this standard, ″’we decide whether testified he did not believe that every axle manufactured by there is any evidence of probative value to raise an issue of Ford contained a crack like the axle in this case, and it was material fact on the question presented, and we review the highly likely the crack was a direct result of Ford’s ″choice evidence in the light most favorable to the person suffering of recipe,″ i.e., using steel with a high phosphorous content. [*8] the adverse judgment.’″ Flying J Inc. v. Meda, Inc., Mr. Clauser explained that because of the high phosphorous 373 S.W.3d 680, 685 (Tex. App.—San Antonio 2012, no pet.) content, the steel became ″embrittled″ during the heat (quoting Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 treating process, and as a result, it was more susceptible to S.W.3d 194, 220 (Tex. 2011)); LG Ins., 378 S.W.3d at 642. In cracks. Mr. Clauser also testified he believed Ford did not other words, we must determine whether the nonmovant intend to manufacture [*10] brittle axles; rather, the axle produced more than a scintilla of probative evidence to raise was an unintended manufacturing defect. Mr. Clauser noted a fact issue. LG Ins., 378 S.W.3d at 642. ″More than a that Ford’s expert, Dr. Herrera, opined that properly scintilla of evidence exists when the evidence rises to a level manufactured axles were capable of sustaining bending that would enable reasonable, fair-minded persons to differ loads of more than 100,000 ″inch pounds″ or more. Mr. in their conclusions.″ King Ranch, Inc. v. Chapman, 118 Clauser opined that in this case, the axle snapped at 40,000 S.W.3d 742, 751 (Tex. 2003). A directed verdict is not proper to 50,000 ″inch pounds,″ breaking at half the load a standard when the nonmovant brings forth more than a scintilla of axle should be able to bear. Accordingly, Mr. Clauser probative evidence, as viewed in the light most favorable to believed the axle deviated from the expected standard — the nonmovant, to raise a genuine issue of material fact; in i.e., it contained a crack caused by embrittled steel — and those cases, the issue must go to the jury. Exxon Corp., 348 failed to remain intact when sideways frictional forces were S.W.3d at 220-21; King Ranch, 118 S.W.3d at 751; Flying J exerted upon it as the truck slid during the accident. Inc., 373 S.W.3d at 685. We can consider any reason the directed verdict should have been granted, even if the reason We hold that after viewing Mr. Clauser’s testimony in a is not stated in the party’s motion. Ibarra, 199 S.W.3d at 37. light most favorable to Appellants, it fails to demonstrate how the axle deviated in its construction or quality from Application Ford’s specifications or planned output. See iLight Technologies Inc. v. Clutch City Sports & Entertainment, HN2 A manufacturing defect exists when a product deviates, L.P., 414 S.W.3d 842, 847 (Tex. App.—Houston [1st Dist.] in its quality or construction, from the specifications or 2013, pet denied) (highlighting that it is necessary to show planned output in a manner that makes it unreasonably manufacturer’s actual specifications or planned output for dangerous. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, product to prove manufacturing defect); Ledesma, 242 41-42 (Tex. 2007); Cooper Tire & Rubber Co. v. Mendez, S.W.3d at 41-42. At no point did Mr. Clauser testify about 204 S.W.3d 797, 800 (Tex. 2006); Goodyear Tire & Rubber what Ford actually required with regard to axle Co. v. Rios, 143 S.W.3d 107, 111 (Tex. App.—San Antonio specifications, if anything, vis-à-vis brittleness. Furthermore, 2004, pet. denied). A plaintiff must prove the product was there is nothing [*11] in the record showing what Ford’s defective when it left the hands of the manufacturer and that specifications or planned output in fact was with respect to the defect was a producing cause of the plaintiff’s injuries. brittleness or how much weight an axle was required to bear. Torrington Co. v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000). Rather, Mr. Clauser’s testimony merely shows how the axle The plaintiff need not identify exactly how the defect came may have deviated from Ford’s performance standards, into being, only that the defect can be traced to the [*9] which were established by Dr. Herrera’s testimony. manufacturer. Goodyear Tire, 143 S.W.3d at 111. Performance standards describe the intended result of a Furthermore, neither direct evidence nor expert testimony is product, but do not indicate anything about the product’s required to establish the existence of a manufacturing technical specifications or design. See Casey v. Toyota defect. Id. Often, a manufacturing defect can be proven only Motor Engineering & Mfg. North America, Inc., 770 F.3d by circumstantial evidence, which is evidence that allows 322, 328 (5th Cir. 2014). Case law is clear that HN3 one to infer a fact based on the circumstances shown by the evidence that a product deviated from a performance proponent of the fact. Id. standard is not evidence that a product deviated from its Page 5 of 6 2015 Tex. App. LEXIS 6102, *11

specifications or planned output. See id.; see also iLight Rubber Co., 204 S.W.3d at 800; Goodyear Tire & Rubber Technologies Inc., 414 S.W.3d at 847. Here, Ford’s expert Co., 143 S.W.3d at 111. testified properly manufactured axles were capable of sustaining bending loads of 100,000 ″inch pounds″ or more, Admittedly, HN5 in the absence of evidence of a standard, and Mr. Clauser testified the axle snapped at 40,000 to evidence that a product was treated in an unintended manner 50,000 ″inch pounds,″ indicating it performed below an can establish a manufacturing defect claim. See iLight expected performance standard — testimony that is irrelevant Technologies Inc., 414 S.W.3d at 848 (looking at whether to establishing a manufacturing defect. appellant presented any evidence that product was manufactured in configuration unintended by appellee). In support of their contention that Mr. Clauser’s testimony However, in this case there is no evidence Ford treated the was sufficient to establish a manufacturing defect, Appellants axle in an unintended manner or manufactured the axle in an rely on Johnson Controls Battery Group, Inc. v. Runnels, unintended configuration, i.e., that it failed to follow the No. 12-01-00183-CV, 2003 Tex. App. LEXIS 10956, 2003 ″recipe.″ See id. In fact, Appellant’s own expert believed WL 21191063 (Tex. App.—Tyler May 21, 2003, no pet.) (op. Ford followed its intended configuration, but he disagreed on reh’g, mem. op.). In Runnels, a car battery exploded with Ford’s recipe, [*14] i.e., he believed the phosphorous [*12] after only twenty months of use and injured Runnels. amounts were too high. When posed with the following 2003 Tex. App. LEXIS 10956, [WL] at *6. Runnels sued statement, ″You’re saying that Ford didn’t follow the recipe. Johnson Controls, alleging a manufacturing defect. 2003 Ford did follow the recipe. You’re just saying you disagree Tex. App. LEXIS 10956, [WL] at *1. Runnels relied on with the recipe,″ Mr. Clauser stated, ″Yes, I disagree with expert testimony from Edward Mrotek, a principal engineer the recipe.″ In short, it is possible Ford did exactly what it in the product design group at Johnson Controls, to prove intended to do with respect to manufacturing the axle, but the existence of a manufacturing defect. Id. After determining Ford utilized a steel that became ″embrittled″ during the Mr. Mrotek’s testimony was reliable, the appellate court heat treating process. Thus, according to Mr. Clauser’s reviewed Mr. Mrotek’s testimony to determine whether it testimony, the defect, if any, in the axle is a design defect (a was sufficient to permit the jury to find a manufacturing bad recipe) rather than a manufacturing defect (failure to defect existed with regard to the subject battery. 2003 Tex. follow the recipe), and as noted above, issues regarding an App. LEXIS 10956, [WL] at *5-*6. The expert testified that alleged design defect were submitted to and rejected by the 95% of Johnson Controls batteries lasted longer than the jury. See id. at 849 (pointing out product’s specifications or subject battery, and the subject battery ″did not meet the planned output may have taken into consideration certain standard.″ 2003 Tex. App. LEXIS 10956, [WL] at *6. Based manufacturing processes and quantified them and in on this evidence, the court held there was sufficient evidence hindsight such processes may be matter of design defect). to permit the jury to find a manufacturing defect existed because the expert’s testimony established some evidence Accordingly, after reviewing the evidence in the light most that Johnson Controls had a standard regarding the expected favorable to Appellants, we hold Appellants failed to life span of its batteries, and the battery in question did not present a scintilla of probative evidence to establish the axle meet that standard. 2003 Tex. App. LEXIS 10956, [WL] at deviated in its construction or quality from Ford’s [*15] *6. specifications or planned output or that Ford treated the axle in an unintended manner or manufactured the axle in an Here, unlike the expert in Johnson Controls, neither Mr. unintended configuration. See Exxon Corp., 348 S.W.3d at Clauser nor Dr. Herrera presented any evidence that Ford 220-21; King Ranch, 118 S.W.3d at 751; Flying J Inc., 373 had a standard regarding brittleness or the weight an axle S.W.3d at 685. Because there was no evidence to establish a was [*13] required to sustain without breaking. Admittedly, manufacturing defect, the trial court did not err in granting Dr. Herrera testified properly manufactured axles were the directed verdict as to the manufacturing defect claim. capable of sustaining bending loads of 100,000 ″inch pounds″ or more; however, there was no testimony this was CONCLUSION a Ford standard. In fact, in their post-submission letter brief, Appellants admit Ford did not have a specification or test Based on our foregoing analysis, we overrule Appellants’ for the brittleness of the steel or its propensity to break when sole appellate issue. We hold the trial court did not err in loaded sideways. The law is clear that HN4 to prove a granting a directed verdict in favor of Ford on Appellants’ manufacturing defect claim, a plaintiff must present evidence manufacturing defect claim because Appellants failed to of a product’s ″deviation from specifications or planned produce any evidence to establish the axle deviated from output.″ See Ledesma, 242 S.W.3d at 41; Cooper Tire & Ford’s specifications or planned output or that Ford treated Page 6 of 6 2015 Tex. App. LEXIS 6102, *15

the axle in an unintended manner or manufactured the axle A directed verdict is proper when no evidence of probative in an unintended configuration. Accordingly, we affirm the force raises a fact issue on a material element of the trial court’s judgment. plaintiff’s claim, or when the evidence conclusively establishes a defense to the plaintiff’s cause of action. Marialyn Barnard, Justice Prudential Ins. Co. of Am. v. Fin. Review Servs. Inc., 29 S.W.3d 74, 77 (Tex. 2000). I believe that in this case Dissent by: Rebeca C. Martinez Appellants did present more than a scintilla of probative evidence [*16] to establish a manufacturing defect. Because the majority holds otherwise, I respectfully dissent. Dissent Rebeca C. Martinez, Justice DISSENTING OPINION TAB 2 462 TAB 3 BRENDAN K. MCBRIDE Email: Brendan.McBride@att.net OF COUNSEL

April 6, 2015

Keith E. Hottle, Clerk Via E-filing at Texas.gov Texas Court of Appeals Fourth District, San Antonio 300 Dolorosa, Suite 3200 San Antonio, Texas 78205

Re: Appellant’s post-submission letter brief in De Los Santos v. Ford; Cause No. 04-14-00562-CV.

Dear Mr. Hottle:

Appellants have requested leave to file this responsive letter brief by separate motion. If leave is granted, please forward this responsive letter brief to the panel members assigned to this appeal for their consideration.

During oral argument on March 26, 2015, the Court asked a number of questions regarding the “hardness” and “strength” specifications for axle steel. Ford’s counsel indicated that there was a “hardness” specification and that the axle met that specification. However, as the trial record indicates, the issue is not “hardness” but “brittleness.” As discussed below, even Ford’s own litigation expert, Dr. Herrera, explained that Ford had no specification or test for the brittleness of steel and propensity to break when loaded by sideways forces. This is the reason Dr. Herrera conducted his testing – to determine what the planned output was for axle resistance in “yaw” accidents like this one.

Clauser explained that the reason for the cracking and hence failure of the axle was that the metal had become “embrittled” during the heat treating process that is part of the axle’s manufacture. (RR6:148; 8:24-25) Discussing the concept of “brittleness,” Dr. Herrera explained that it was contrasted with what he called “plasticity.” (RR13:23-24) Plasticity is the ability of the metal to deform without breaking when force is applied. (RR13:24) Critically, Dr. Herrera conceded that “hardness” testing is not a measure of the axle’s “brittleness” or plasticity. (RR13:25)(Q: “Would you agree with me that hardness testing is not a measure of brittleness?” A: “Agree.”).

As noted extensively in the briefing and during oral argument, there was evidence of an “intergranular fracture” in the metal of the axle caused by the metal being too brittle: Keith E. Hottle April 2, 2015 Page 2

Well, what's -- what's important about this crack is that, first of all, you can see the steps and the jaggedness. It's intergranular. It's the way a brittle crack would be, not a tough ductile crack. So it's the result of the material being embrittled . . . And we did some etching on this. And you can see that these steps match with the grain size of the structure, so it’s an intergranular [sic] structural crack.

(RR6:93-94)

Again, Dr. Herrera explained that this sort of intergranular fracture would be related to the metal being “brittle,” rather than being “weak”:

Q: And I think you said intergranular fracture does not mean it’s weak or brittle?

A: Correct. No, wait a minute. It’s not weak. Brittle, yes. Remember exactly what I said. It’s a mixed mode fracture. Typically, on brittle fractures you have more intergranular type fracture than transgranular or dimples, which the tucked-in fracture. So you’re – you’re trying to equate brittleness to weakness. That’s incorrect.

(RR13:26, emphases added; see also RR12:111 (explaining that “brittle” failure of metal means “it doesn’t stretch before it fails.”)) One of the examples to contrast this that the jury heard were diamonds – they are certainly “strong” and not “weak,” but they are also still “brittle” and subject to fracturing when a sufficient force is applied to them. (RR12:112)

The importance of this testimony to the issues raised by the Court’s questions is crucial, because the record shows that Ford had a testing specification for “hardness” but not for brittleness. (RR12:120)(Dr. Herrera explaining that Ford specifies a standard on the “Rockwell- C hardness” test). The problem with this axle was its brittleness, not its hardness. Clauser’s own testing at Anderson Labs confirmed the steel of the axle met the hardness specification. (RR12:121) And as noted above, Clauser’s opinion that this axle was defectively manufactured was based on his conclusion that it was too brittle, not that it lacked hardness. However, as Clauser explained to the jury, there was an expectation by Ford that the axle would resist 32,000 inch pounds of lateral force without breaking, there was no other Ford specification for what point an axle should fracture during dynamic loading situations. (RR8:37) Ford’s planned output was an axle that would not break when subjected to ordinary friction forces in a lateral slide or yaw. (Id.) Clauser saw no indication that Ford ever tested what specifically that level should be other than Dr. Herrera’s testing for this case. (RR8:35-37) But Clauser, Dr. Herrera, Mr. Pascarella (see infra) and Ford’s corporate representative were all in agreement that if the axle broke in this sideways slide it did not meet Ford’s expectations. And as explained extensively in the briefing to the Court, Clauser had a detailed explanation as to how the Keith E. Hottle April 2, 2015 Page 3

manufacturing process caused this particular axle to be embrittled and contain subsurface intergranular fractures.

Thus, there was no testing or quantified specification for the “brittleness” of the axles when subjected to a lateral, i.e. “side-to-side,” dynamic force. Ford’s corporate representative, Mr. Kalis, stated the closest testing done by Ford was the Axle Shaft Rolling Bending test, which he described as the closest to simulating the forces necessary to fracture the axle at the point where this axle broke. (RR5:41) This was a test where the axle was placed under a load pushing downward onto the axle. (Id.) However, Kalis admitted that this testing specification has no side-to-side component, he was not aware of any testing for lateral loading on the axles and, in fact, he did not know “what the axle load would be that would break the axle in a lateral sense.” (RR4:43; 10:166-67) Though even Kalis agreed that the yaw in this accident imparted a “lateral load to the – to the axle.” (RR5:46)

Thus, there was no specification created by Ford for the degree of “plasticity” (in Dr. Herrera’s terminology) expected in a good axle subjected to a lateral load as happened in this sideways skid – except for the testing that Dr. Herrera did for this case that showed similar axles were supposed to resist nearly four times as much sideways force as was applied to the subject axle in this accident. As noted in Appellants’ briefing, Dr. Herrera’s testing showed the axles should have resisted up to 128,000 inch pounds, but he conceded that the most lateral force this axle would have been subjected to in this sideways slide was 32,000 inch pounds. (RR12:101,107)

Importantly, Dr. Herrera conceded that if the jury agreed the axle broke during the lateral slide rather than after the rollover, the axle would be defective. (RR13:39-40) Likewise, Ford’s metallurgy expert, Mr. Pascarella, also agreed that if the jury were to determine the axle broke during the slide instead of during the roll, that it “did not meet[] Ford’s requirements in terms of expectations.” (RR11:103) And if that were the case, it would be a manufacturing defect. (Id.) Pascarella explained:

Q: And if it doesn’t meet Ford’s expectations, that’s a bad apple in the batch?

A: If that were the case – again, based on what I know about this, I didn’t see any maintenance issues with this particular axle, that’s correct.

Q: Okay. And so it sounds like you're agreeing if it happened as described by Greenlees and the trooper, you agree it's a defective axle? Keith E. Hottle April 2, 2015 Page 4

A: Again, I hesitate on the word "defective," but based on my analysis, I would not expect that to happen, and it would not meet Ford's requirements.

(RR11: 103-104)

There was abundant evidence that the axle broke during the slide before the rollover, including the accident reconstruction by the certified Texas DPS accident reconstructionist and the plaintiffs’ accident reconstructionist, Mr. Greenlees. The jury should have been asked whether there was a manufacturing defect and the instructed verdict was reversible error.

Thank you in advance for your assistance in circulating this letter brief to the members of the Court’s panel.

Sincerely,

Brendan K. McBride McBride Law Firm, of counsel to Gravely & Pearson, L.L.P.

Cc: (via electronic service through Texas.gov)

Allyson Ho Michael Eady