Affirm in part, Reverse and Remand in part; Opinion Filed January 29, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00794-CV
SAMUEL MEDINA, OBDULIA MEDINA, NATALYE MEDINA, AND NAVIL GIBSON, Appellants V. MICHELIN NORTH AMERICA, INC., Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-07255
MEMORANDUM OPINION Before Justices Francis, Evans, and Boatright Opinion by Justice Evans In this products liability case, Samuel Medina, Obdulia Medina, Natalye Medina, and
Navil Gibson challenge the trial court’s adverse summary judgment on their strict liability,
negligence, post-sale duty to warn, and gross negligence/punitive damages claims against
Michelin North America, Inc. In six issues, appellants, whom we collectively refer to as the
Medinas, generally complain the court erred in granting summary judgment to Michelin because
its no-evidence motion for summary judgment on certain claims was insufficient as a matter of
law, the trial court granted summary judgment on grounds not raised in Michelin’s motion, and
there was sufficient evidence to create a genuine issue of material fact on each of their claims.
For the reasons that follow, we affirm in part and reverse and remand in part. BACKGROUND The case arises from a one-vehicle accident that the Medinas allege was caused by the
failure of an eleven-year-old tire. According to the Medinas, in 2012, Adrian Rico was driving a
2000 Ford Expedition when the left rear tire suddenly burst, causing the vehicle to roll-over and
seriously injure the Medinas who were passengers in the vehicle. Rico had purchased the used
vehicle shortly before the accident from Jose Bustillo doing business as Mundo Cars. Mundo
Cars acquired the vehicle as salvage and repaired it before selling it to Rico. The subject tire was
a Michelin LTX M/S manufactured by Michelin in 2001.1 However, there was still
approximately three times the federal minimum tread remaining on the tire at the time of the
accident. The Medinas sued Michelin alleging, among things, the tire was negligently or
defectively designed and/or manufactured resulting in the tire’s failure and subsequent accident.
They also asserted claims for negligent/defective marketing, post-sale duty to warn, and gross
negligence/punitive damages.
To support their claims, the Medinas retained Troy W. Cottles, a forensic tire failure
analyst and tire design and manufacturing consultant, who testified that the tire’s design and
manufacture was faulty. In addition to other claims, Michelin moved for summary judgment on
the Medinas’ claims for design defect, manufacturing defect, marketing defect, negligence, gross
negligence/punitive damages, and post–sale duty to warn.2 In a separate motion, Michelin
moved to exclude Cottles’s expert testimony. In its motion to exclude, Michelin challenged
Cottles’s qualifications and the reliability of his opinions. The Medinas filed responses to the
summary judgment motions, which included, among other things, Cottles’s report and
deposition. The trial court granted summary judgment to Michelin on all of the Medinas’ claims.
1 The three other tires on the vehicle were all different brands and sizes. 2 Michelin actually filed two motions for summary judgment, each addressing different causes of action against it.
–2– The court denied, however, Michelin’s motion to exclude Cottles’s expert testimony. The trial
court then severed the claims against Michelin from the claims against Jose Bustillo d/b/s Mundo
Cars making the summary judgment in Michelin’s favor final for purposes of appeal. The
Medinas filed this appeal.3
ANALYSIS
A. Standard of Review
Michelin moved for summary judgment asserting both no-evidence and traditional
grounds. A party may move for no-evidence summary judgment on the ground that no evidence
exists for identified essential elements of a claim on which the adverse party bears the burden of
proof at trial. See TEX. R. CIV. P. 166a(i). The motion must identify the elements as to which
there is no evidence and should be granted if the nonmovant fails to produce evidence creating a
genuine issue of material fact on the challenged elements. See id. To prevail on a traditional
motion for summary judgment, however, the moving party must establish that no genuine issue
of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c). We review an order granting summary judgment de novo, taking all evidence favorable
to the nonmovant as true while indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). Where, as here, the trial court does not specify the grounds on which it granted the
summary judgment, we must affirm if any of the grounds asserted in the motion are meritorious.
See id. at 216.
3 The trial court granted summary judgment on additional causes of action that the Medinas asserted against Michelin. The Medinas’ appeal, however, is limited to those claims stated above.
–3– B. Design Defect, Manufacturing Defect, and Negligence Claims
In their second issue, the Medinas assert the trial court erred in granting summary
judgment to Michelin on their design defect, manufacturing defect, and negligence claims
because the sole summary judgment ground Michelin presented with respect to these claims was
a no-evidence ground that presupposed and was dependent upon the trial court’s granting of
Michelin’s motion to exclude the testimony of Cottles, their expert witness. The Medinas
contend that because the trial court denied Michelin’s motion to exclude, the trial court’s
granting of the no-evidence summary judgment on these claims exceeded the scope of the
ground upon which Michelin moved for summary judgment. Michelin, on the other hand, argues
that summary judgment was proper on these claims irrespective of whether Cottles’s testimony
was excluded because his testimony, even if considered, was tantamount to no evidence. We
agree with the Medinas for the reasons that follow.
Our review of Michelin’s motion for summary judgment reveals multiple places where it
specifically indicated its no-evidence grounds with respect to the Medinas’ claims for
negligence, design defect, and manufacturing defect were based on the anticipated exclusion of
Cottles’s testimony rather than the content of his opinions. Specifically, the “Summary of
Argument” section of Michelin’s motion stated “Michelin will file a motion to exclude the expert
testimony of plaintiff’s product defect expert, Troy Cottles, and requests that any ruling on this
[summary judgment] motion be made after the motion to exclude has been determined. If the
Court excludes Mr. Cottles’ testimony, summary judgment is appropriate because plaintiffs will
have no evidence to support their strict liability and negligence claims against [Michelin].”
More particularly, under another section entitled “Design Defect Claims - No Evidence,”
Michelin specifically stated as follows:
Plaintiffs have designated Troy Cottles as their tire defect expert. Mr. Cottles has provided an expert report and his deposition is scheduled for March 4, 2016. –4– [Michelin] plans to move to exclude Mr. Cottles’ testimony. If Mr.
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Affirm in part, Reverse and Remand in part; Opinion Filed January 29, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00794-CV
SAMUEL MEDINA, OBDULIA MEDINA, NATALYE MEDINA, AND NAVIL GIBSON, Appellants V. MICHELIN NORTH AMERICA, INC., Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-07255
MEMORANDUM OPINION Before Justices Francis, Evans, and Boatright Opinion by Justice Evans In this products liability case, Samuel Medina, Obdulia Medina, Natalye Medina, and
Navil Gibson challenge the trial court’s adverse summary judgment on their strict liability,
negligence, post-sale duty to warn, and gross negligence/punitive damages claims against
Michelin North America, Inc. In six issues, appellants, whom we collectively refer to as the
Medinas, generally complain the court erred in granting summary judgment to Michelin because
its no-evidence motion for summary judgment on certain claims was insufficient as a matter of
law, the trial court granted summary judgment on grounds not raised in Michelin’s motion, and
there was sufficient evidence to create a genuine issue of material fact on each of their claims.
For the reasons that follow, we affirm in part and reverse and remand in part. BACKGROUND The case arises from a one-vehicle accident that the Medinas allege was caused by the
failure of an eleven-year-old tire. According to the Medinas, in 2012, Adrian Rico was driving a
2000 Ford Expedition when the left rear tire suddenly burst, causing the vehicle to roll-over and
seriously injure the Medinas who were passengers in the vehicle. Rico had purchased the used
vehicle shortly before the accident from Jose Bustillo doing business as Mundo Cars. Mundo
Cars acquired the vehicle as salvage and repaired it before selling it to Rico. The subject tire was
a Michelin LTX M/S manufactured by Michelin in 2001.1 However, there was still
approximately three times the federal minimum tread remaining on the tire at the time of the
accident. The Medinas sued Michelin alleging, among things, the tire was negligently or
defectively designed and/or manufactured resulting in the tire’s failure and subsequent accident.
They also asserted claims for negligent/defective marketing, post-sale duty to warn, and gross
negligence/punitive damages.
To support their claims, the Medinas retained Troy W. Cottles, a forensic tire failure
analyst and tire design and manufacturing consultant, who testified that the tire’s design and
manufacture was faulty. In addition to other claims, Michelin moved for summary judgment on
the Medinas’ claims for design defect, manufacturing defect, marketing defect, negligence, gross
negligence/punitive damages, and post–sale duty to warn.2 In a separate motion, Michelin
moved to exclude Cottles’s expert testimony. In its motion to exclude, Michelin challenged
Cottles’s qualifications and the reliability of his opinions. The Medinas filed responses to the
summary judgment motions, which included, among other things, Cottles’s report and
deposition. The trial court granted summary judgment to Michelin on all of the Medinas’ claims.
1 The three other tires on the vehicle were all different brands and sizes. 2 Michelin actually filed two motions for summary judgment, each addressing different causes of action against it.
–2– The court denied, however, Michelin’s motion to exclude Cottles’s expert testimony. The trial
court then severed the claims against Michelin from the claims against Jose Bustillo d/b/s Mundo
Cars making the summary judgment in Michelin’s favor final for purposes of appeal. The
Medinas filed this appeal.3
ANALYSIS
A. Standard of Review
Michelin moved for summary judgment asserting both no-evidence and traditional
grounds. A party may move for no-evidence summary judgment on the ground that no evidence
exists for identified essential elements of a claim on which the adverse party bears the burden of
proof at trial. See TEX. R. CIV. P. 166a(i). The motion must identify the elements as to which
there is no evidence and should be granted if the nonmovant fails to produce evidence creating a
genuine issue of material fact on the challenged elements. See id. To prevail on a traditional
motion for summary judgment, however, the moving party must establish that no genuine issue
of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c). We review an order granting summary judgment de novo, taking all evidence favorable
to the nonmovant as true while indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). Where, as here, the trial court does not specify the grounds on which it granted the
summary judgment, we must affirm if any of the grounds asserted in the motion are meritorious.
See id. at 216.
3 The trial court granted summary judgment on additional causes of action that the Medinas asserted against Michelin. The Medinas’ appeal, however, is limited to those claims stated above.
–3– B. Design Defect, Manufacturing Defect, and Negligence Claims
In their second issue, the Medinas assert the trial court erred in granting summary
judgment to Michelin on their design defect, manufacturing defect, and negligence claims
because the sole summary judgment ground Michelin presented with respect to these claims was
a no-evidence ground that presupposed and was dependent upon the trial court’s granting of
Michelin’s motion to exclude the testimony of Cottles, their expert witness. The Medinas
contend that because the trial court denied Michelin’s motion to exclude, the trial court’s
granting of the no-evidence summary judgment on these claims exceeded the scope of the
ground upon which Michelin moved for summary judgment. Michelin, on the other hand, argues
that summary judgment was proper on these claims irrespective of whether Cottles’s testimony
was excluded because his testimony, even if considered, was tantamount to no evidence. We
agree with the Medinas for the reasons that follow.
Our review of Michelin’s motion for summary judgment reveals multiple places where it
specifically indicated its no-evidence grounds with respect to the Medinas’ claims for
negligence, design defect, and manufacturing defect were based on the anticipated exclusion of
Cottles’s testimony rather than the content of his opinions. Specifically, the “Summary of
Argument” section of Michelin’s motion stated “Michelin will file a motion to exclude the expert
testimony of plaintiff’s product defect expert, Troy Cottles, and requests that any ruling on this
[summary judgment] motion be made after the motion to exclude has been determined. If the
Court excludes Mr. Cottles’ testimony, summary judgment is appropriate because plaintiffs will
have no evidence to support their strict liability and negligence claims against [Michelin].”
More particularly, under another section entitled “Design Defect Claims - No Evidence,”
Michelin specifically stated as follows:
Plaintiffs have designated Troy Cottles as their tire defect expert. Mr. Cottles has provided an expert report and his deposition is scheduled for March 4, 2016. –4– [Michelin] plans to move to exclude Mr. Cottles’ testimony. If Mr. Cottles’ testimony is excluded, plaintiffs will be without evidence to support any element of their design defect claim. [Michelin] requests that the Court consider this motion for summary judgment after its motion to exclude Mr. Cottles’ testimony has been considered and ruled upon. If Mr. Cottles’ testimony is excluded, or his opinions limited based on his lack of qualification, [Michelin] is entitled to summary judgment on plaintiff’s design defect claim.
(emphasis added). Michelin’s no-evidence summary judgment on the Medina’s manufacturing
defect and negligence claims contained the same or similar paragraph, each requesting the
motion be heard after its motion to exclude and asserting its entitlement to summary judgment
“[i]f Mr. Cottles’ testimony is excluded or his opinions limited based on his lack of
qualification.” Importantly, Michelin’s motion did not generally assert the Medinas had no
evidence of certain elements of these claims, nor did they contend Cottles’s opinions or
testimony constituted no evidence to support particular elements of these claims. To the
contrary, Michelin’s no-evidence grounds were expressly contingent upon the trial court’s
granting of its separate motion to exclude or limit Cottles’s testimony. In other words,
Michelin’s no-evidence motion on these claims was based on the absence or lack of expert
testimony rather than whether Cottles’s opinions constituted more than a scintilla of probative
evidence on certain elements of these causes of action.
It is axiomatic that a trial court cannot grant a summary judgment on grounds not
presented in the motion. Timpte Indus., Inc., v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A
motion for summary judgment must “stand or fall on the grounds expressly presented in the
motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1983). In a no-
evidence motion for summary judgment, the movant must specifically state the element or
elements for which there is no evidence. See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen,
525 S.W.3d 671, 695–96 (Tex. 2017). The very purpose of this requirement is to provide the
–5– nonmovant with sufficient information for opposing the motion and to define the issues to be
addressed in the summary judgment. See Timpte, 286 S.W.3d at 311.
Michelin’s only basis for no-evidence summary judgment motion on these claims was the
lack or absence of expert testimony should the trial court grant its motion to exclude Cottles’s
testimony. The no-evidence motion itself specifically requested the trial court not consider the
no-evidence summary judgment motion on these claims until it considered and ruled on its
motion to exclude. In granting summary judgment on these claims after denying Michelin’s
motion to exclude, however, the trial court necessarily concluded Cottles’ testimony constituted
no evidence. Because Michelin did not move for summary judgment on this ground, the trial
court erred in granting summary judgment on the Medinas’ defective design, defective
manufacturing, and negligence claims once it denied Michelin’s motion to exclude this
testimony. We therefore resolve the Medina’s second issue in their favor and reverse the
summary judgment as to their defective design, defective manufacturing, and negligence claims.
Our resolution of this issue makes it unnecessary to address their first and third issues that also
challenge the summary judgment on these claims.
C. Marketing Defect Claim
In their fourth issue, the Medinas contend the trial court erred in granting summary
judgment on their marketing defect claim. Michelin moved for summary judgment on this claim
on two grounds. First, Michelin asserted that because the Medinas failed to designate a warnings
expert, there was “no evidence to support any element of” their marketing defect claim. This
ground cannot support summary judgment because lack of an expert report is not an essential
element of a marketing defect claim and Michelin’s challenge that Medinas had no evidence of
“any element of” their marketing defect claim did not specifically identify the essential elements
it was challenging based on the alleged lack of a warnings expert. See Hansen, 525 S.W.3d at
–6– 695–96 (“Thus, a no-evidence motion that lists each element of the plaintiff's claim and then
asserts that the plaintiff has no evidence to support ‘one or more’ or ‘any of’ those elements is
insufficient to support summary judgment because this language does not clearly identify which
elements, whether some or all, are challenged.”).4
Second, Michelin asserted there was conclusive evidence negating the causation element
of the Medinas’ marketing defect claim. Specifically, Michelin asserted any proposed warnings
would not and could not have been read because there is evidence that (1) the Ricos, owners of
the accident vehicle, did not read English and driver Adrian Rico admitted that he did not read
any writing on the sidewall of the accident vehicle’s tires, and (2) Samuel and Obdulia Medina
understood only a little English and could not and did not read any warnings regarding the tire.
The Medinas argue their responsive evidence was sufficient to create a fact issue on whether the
failure to warn of the danger posed by the tire had a causative nexus to the Medinas’ injuries.
We agree. The Medinas’ evidence included an affidavit from Bustillo, the principal of the
company that sold the vehicle to Rios, stating he believed the vehicles he sold, including their
tires, were safe, and was unaware of any safety problem relating to any Michelin tire or the tires
on the accident vehicle. It also included affidavits from Navil Gibson and Natalye Medina
stating they both speak and read English fluently and would have read, heeded, and informed
their parents of any warnings given.
To prevail on a marketing defect claim, the plaintiff must establish, among other things,
the alleged failure to warn and/or instruct must constitute a causative nexus in the product user’s
injury. See Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.—San
4 In their first issue which we have not reached, Medinas argue Michelin’s no-evidence motion was legally insufficient as to their design defect and manufacturing defect claims because Michelin’s conditional challenges to “any element of” Medinas’ claims failed to specify which element or elements of these claims were challenged. See Hansen, 525 S.W.3d at 695–96.
–7– Antonio 2004 (pet. denied). To prove causation when no warning is provided, the Medinas are
aided by a rebuttable presumption that proper warnings would have been heeded. Stewart v.
Transit Mix Concrete & Materials Co., 988 S.W.2d 252, 257 (Tex. App.—Texarkana 1998, pet.
denied). However, no presumption will arise that the Medinas would have heeded a better
warning if they failed to read the warning given, which, if followed, would have prevented the
injuries. Id.
Here, the Medinas contended that the tire should have had a warning indicating the tire
was unsafe after it was ten years old. They argued if such a warning was on the tire, Bustillo
would have heeded the warning and not placed the tire on the vehicle prior to selling it to Rico.
Evidence that the Ricos and Samuel and Obdulia did not and could not read the existing
warnings on the tire does not conclusively negate causation here because Michelin has not
established that had they heeded those warnings, their injuries would have been prevented. See
id. Viewing the evidence in the light most favorable to the plaintiffs, Michelin did not
conclusively establish its entitlement to a traditional summary judgment on the Medinas’
marketing defect claim. Having concluded summary judgment was improper on all of the
grounds Michelin asserted with respect to the Medinas’ marketing defect claim, we resolve the
Medinas’ fourth issue in their favor.
D. Punitive Damages
In their fifth issue, the Medinas challenge the no-evidence summary judgment on their
punitive damages claim. They asserted a claim for punitive damages based on gross negligence.
See TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a)(3) (West 2015). “[G]ross negligence is the
breach of duty involving an extreme degree of risk, considering the probability and magnitude of
the potential harm to others (an objective element) when the actor has actual awareness of the
risk involved but nevertheless proceeds in conscious indifference to the rights, safety, or welfare
–8– of others (subjective element).” Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex.
1999). In its motion for summary judgment, Michelin asserted the Medinas had no evidence of
either the objective element or subjective element to support their gross negligence claim. The
Medinas contend that a confidential Michelin report demonstrating it knew of risks associated
with tire aging as well as evidence that Michelin chose to design the tire without an alternative
design was clear and convincing evidence that created fact issues on both elements of gross
negligence. We do not agree.
To defeat summary judgment on their punitive damages claims, the Medinas were
required to put forth more than a scintilla of evidence that (1) the tire in question posed an
extreme degree of risk and (2) that Michelin had actual subjective awareness of the extreme
degree of risk that the tire posed but nevertheless proceeded with conscious indifference to the
consequences of its acts. See id. The extreme degree of risk prong is not satisfied by a remote
possibility of injury or even a high probability of minor harm, but rather the likelihood of serious
injury to the plaintiff. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994). The Medinas
do not point to any evidence to support their contention that Michelin had knowledge that its
alleged conduct in choosing a certain design over another or failing to inform consumers of risks
of using tires past a certain age resulted in an extreme degree of risk and consciously chose to
disregard that extreme risk. Instead their argument under this issue focuses on evidence that
Michelin “intentionally” chose a design that did not include an alternative design of a nylon cap
ply (that Medinas’ expert contended was safer) and that Michelin knew the risks presented by
tire aging. Because the Medina’s summary judgment evidence did not raise a genuine issue of
material fact on each element of its gross negligence claim, the trial court did not err in granting
Michelin’s no evidence motion for summary judgment on punitive damages. We resolve the
Medinas’ fifth issue against them.
–9– E. Post-Sale Duty to Warn
In their sixth and final issue, the Medinas assert the trial court erred in granting a
traditional summary judgment on what Michelin characterizes as their “Post-Sale Duty to Warn”
claim. In their first amended petition, the Medinas claimed that Michelin “carelessly and
recklessly fail[ed] to recall the said tire, modify the design and fail[ed] to provide a post-
manufacture, post-sale and post-inspection warning to the foreseeable public, end-users,
consumers, operators, motorists, occupants and passengers such as Plaintiffs.” In its summary
judgment motion, Michelin argued that Texas does not recognize a post-sale duty to warn nor is
there a duty to remedy dangerous defects in a product that are not discovered until after its
manufacture and sale. It further argued that any post-sale duty claims were preempted by federal
law.
Texas has not recognized a general duty to warn of product defects not discovered until
after manufacture and sale. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 836 (Tex. 2000)
(“we are not called on to recognize any post-sale duty to warn”). The Medinas contend their
claims do not involve a post-sale duty to warn but rather that Michelin had a “continuing duty”
to warn after the tire’s sale and manufacture because there was evidence from Michelin’s tire
designer and Medinas’ tire expert that Michelin had knowledge about tire aging at the time it
sold the tire in question. The Medinas cite no authority, and we have found none, to support their
contention that Michelin’s pre-sale knowledge of a defect will support a post-sale duty to warn
cause of action distinct from its other failure to warn claims that we have addressed above.
Accordingly, the trial court did not err in granting summary judgment on the Medinas’ post-sale
duty to warn claims. We resolve the sixth issue against the Medinas.
–10– CONCLUSION
Based on the summary judgment record before us, we reverse the trial court’s summary
judgment with respect to the Medinas’ defective design, defective manufacturing, defective
marketing and negligence claims and remand those claims to the trial court for further
proceedings. We affirm the trial court’s judgment in all other respects.
/David Evans/ DAVID EVANS JUSTICE
160794F.P05
–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SAMUEL MEDINA, OBDULIA MEDINA, On Appeal from the 134th Judicial District NATALYE MEDINA, AND NAVIL Court, Dallas County, Texas GIBSON, Appellants Trial Court Cause No. DC-14-07255 Opinion delivered by Justice Evans, Justices No. 05-16-00794-CV V. Francis and Boatright participating.
MICHELIN NORTH AMERICA, INC., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE the trial court's summary judgment on appellants' design defect, manufacturing defect, marketing defect, and negligence claims and REMAND the cause to the trial court for further proceedings on those claims. In all other respects, the trial court's judgment is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 29th day of January, 2018.
–12–