                                                                                                                                     ACCEPTED
                                                                                                                                04-14-00562-cv
                                                                                                                     FOURTH COURT OF APPEALS
                                                                                                                          SAN ANTONIO, TEXAS
                                                                                                                           4/10/2015 4:51:13 PM
                                                                                                                                  KEITH HOTTLE
Morgan, Lewis & Bockius LLP                                                                                                              CLERK
1717 Main Street
Suite 3200
Dallas, Texas 75201-7347
Tel. 214.466.4000
Fax: 214.466.4001                                                                                                FILED IN
www.morganlewis.com                                                                                       4th COURT OF APPEALS
                                                                                                           SAN ANTONIO, TEXAS
Allyson N. Ho                                                                                             4/10/2015 4:51:13 PM
Partner
214.466.4180                                                                                                KEITH E. HOTTLE
aho@morganlewis.com                                                                                               Clerk

April 10, 2015

VIA ELECTRONIC FILING

Keith E. Hottle, Clerk
Texas Court of Appeals
Fourth District, San Antonio
300 Dolorosa, Suite 3200
San Antonio, Texas 78205

         Re:       No. 04-14-00562-CV
                   Jesus De Los Santos, Jr., et al. v. Ford Motor Company

Dear Mr. Hottle:

       We write to respond to the post-submission letter brief filed by Plaintiffs-Appellants in
the above-referenced appeal. Please forward this response to the panel members assigned to this
appeal for their consideration.

        Plaintiffs’ letter brief only confirms that the trial court properly granted directed verdict
on their manufacturing defect claim. Crucially Plaintiffs-Appellants concede (at 2) that the axle
met Ford’s design specifications for hardness. That concession is dispositive of this case. See
Torres v. Caterpillar, Inc., 928 S.W.2d 233, 239 (Tex. App.—San Antonio 1996, writ denied)
(“A manufacturing defect is one created by a manufacturer’s failure to conform to its own
specifications, i.e., the product would not have been defective if it had conformed to the
manufacturer’s design specifications. A design defect exists where the product conforms to the
specifications but there is a flaw in the specifications themselves.”).

        Plaintiffs complain (at 3) that Ford should have had similar specifications for brittleness.
But that argument only confirms that this is a design defect case—not a manufacturing defect
case. If brittleness specifications existed, the axle could have been measured against those
specifications. If the axle deviated from those specifications in a manner that rendered it
unreasonably dangerous, then that would be manufacturing defect. But that is not what we have
here, by virtue of Plaintiffs own admission that the axle met Ford’s specifications.

         Plaintiffs cannot be heard to argue that a set of specifications should have existed, and
that if they had existed, then the product would have deviated from them. It is the deviation from


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Keith E. Hottle, Clerk
April 10, 2015
Page 2

the manufacturer’s specifications (or planned output) that is the indispensable element of a
manufacturing defect claim, as opposed to a design defect claim. Ford Motor Co. v. Ledesma,
242 S.W.3d 32, 42 (Tex. 2007) (“The requirement of a deviation from the manufacturer’s
specifications or planned output serves the essential purpose of distinguishing a manufacturing
defect from a design defect.”) (emphasis added).

        Indeed, the reason Plaintiffs’ expert Clauser testified that the axle was “brittle” was that,
according to him, the recipe used for the steel in the axle had too much phosphorus, which
“weakens the bonding between the adjacent grains” and thus “makes the steel brittle” such that it
“fails at lower [loads] than it should.” 6 RR 96:1-6, 109:11-13; 7 RR 88:23-89:4, 97:17-21.
That is a textbook design issue, not a manufacturing issue.

       What is more, in the field of metallurgy, “brittle material is not a defective material.” 12
RR 111:12-14. Brittleness is simply a characterization of how metal breaks, not how strong the
metal is. 12 RR 111:14-16. That is likely why Plaintiffs have not identified any “brittleness”
manufacturing specification—either in their letter or at trial—nor explained how “brittleness”
could even be measured. Tensile strength and hardness—which Ford’s specifications address—
is what measure the forces necessary to break an axle. They are strength tests—and Plaintiffs
concede in their letter that the axle passed those tests. Plaintiffs’ “brittleness” argument is just
another variation of their argument that there should have been a specification that did not
exist—and as already demonstrated, that is a design issue, not a manufacturing issue, under
Texas law.

        Finally, Plaintiffs’ letter brief repeatedly assumes that Ford’s specification or planned
output for the axle was a performance standard in a sideways yaw, which it was not. If that
argument were accepted, then all cases where the product did not perform as expected would be
manufacturing defect cases. That is not the law in Texas. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 601 (Tex. 2004) (evidence of a product failure alone is “so slight as to make any
inference a guess [and] is in legal effect no evidence”); Casey v. Toyota Motor Eng’g & Mfg. N.
Am., Inc., 770 F.3d 322, 327-28 (5th Cir. 2014) (discussing the difference between performance
standards and design specifications and observing that “it is inconsistent with the law as the
Texas Supreme Court has stated it” to rely on performance standards to prove a manufacturing
defect). In sum, nothing in Plaintiffs’ letter brief alters the conclusion that the trial court
properly granted directed verdict to Ford as to the manufacturing defect claim, and that judgment
should be affirmed.

                                                      Sincerely,


                                                      Allyson N. Ho

ANH/lks
cc: All Counsel via ECF
