                                 IN THE
                         TENTH COURT OF APPEALS

                              No. 10-08-00046-CV

BOBBIE AND MICHAEL LYON,
                                                       Appellants
v.

ATICO INTERNATIONAL USA, INC.,
                                                       Appellee



                         From the 170th District Court
                           McLennan County, Texas
                          Trial Court No. 2006-1859-4


                         MEMORANDUM OPINION


      Bobbie and Michael Lyon sued Atico International, USA, Inc. for products

liability based on a fall Bobbie sustained when sitting on a portable picnic table

manufactured by Atico.    The trial court granted Atico’s no-evidence motion for

summary judgment. On appeal, the Lyons argue that the trial court erred by: (1)

granting Atico’s motion; and (2) sustaining Atico’s objections to their summary

judgment evidence and excluding the evidence. We affirm.
                                         ANALYSIS

        In issue one, the Lyons challenge the granting of Atico’s no-evidence motion for

summary judgment. In issues two, three, and four, they challenge the exclusion of three

paragraphs of Michael’s affidavit. In issue five, they challenge the exclusion of excerpts

from Bobbie’s deposition testimony.

                                     Evidentiary Issues

        We consider the Lyons’s evidentiary issues first to determine which evidence we

may consider when addressing the merits. See Choctaw Props., L.L.C. v. Aledo Indep. Sch.

Dist., 127 S.W.3d 235, 240 (Tex. App.—Waco 2003, no pet.). In doing so, we apply an

abuse-of-discretion standard. See Rosas v. Hatz, 147 S.W.3d 560, 563 (Tex. App.—Waco

2004, no pet.).

        The trial court excluded three paragraphs of Michael’s affidavit:

        It was obvious that the structure of the corner of the picnic table that
        collapsed was not sufficiently strong to support my wife when she sat on
        it. I am aware of no other explanation that would explain the collapse. I
        had observed the picnic table earlier that day and it did not appear
        damaged or modified in any way.

        My weight in May, 2004 was probably in the neighborhood of 240 pounds.
        I believe a significant percentage of the adults, particularly males, that live
        in McLennan County, Texas exceed 160 pounds. While the percentage is
        probably lower, I believe a significant number of adult women in this area
        also exceed 160 pounds. In my opinion, in May, 2004 Bobbie Lyon
        probably weighed 160 pounds and maybe a little more.

        It is my observation and common knowledge that all other seats in this
        area, including those made of plastic and aluminum are designed and
        manufactured to support people whose weight exceeds 160 pounds. Prior
        to May, 2004 it would never have occurred to me that a seat designed and
        manufactured for adult use would have a maximum chair weight load of
        only 160 pounds.


Lyon v. Atico Int’l USA, Inc.                                                             Page 2
The trial court excluded Bobbie’s deposition testimony as to “what caused the alleged

accident or how the alleged accident could have been avoided.”

        We first note that Bobbie merely testified to the purchase of the table, the facts

surrounding the accident, and her alleged injuries. Her testimony does not address the

cause of the accident or how it could have been avoided. Thus, we overrule issue five.

        As for Michael, his testimony regarding the table’s structural integrity at the time

of the accident was properly excluded because he did not observe the accident. See TEX.

R. EVID. 701 (Lay witness testimony must be rationally based on the perception of the

witness); see also Bd. of Trs. of the Fire & Police Retiree Health Fund v. Towers, Perrin, Forster

& Crosby, Inc., 191 S.W.3d 185, 193 (Tex. App.—San Antonio 2005, pet. denied) (“The

perception underlying the lay witness’s testimony may be what was seen, heard,

smelled, tasted, touched or felt;” Rule 701 “presumes the witness observed or

experienced the underlying facts”). His testimony regarding the weight of other men

and women in the county and the structural stability of other seats in the county is also

incompetent summary judgment evidence. See Towers, 191 S.W.3d at 193; see also Texas

Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (“[S]ubjective beliefs are no

more than conclusions and are not competent summary judgment evidence.”);

Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth 2006,

no pet.) (“A conclusory statement is one that does not provide the underlying facts to

support the conclusion.”).




Lyon v. Atico Int’l USA, Inc.                                                              Page 3
        The remainder of the excluded portions of Michael’s affidavit is rationally based

on Michael’s observations and experiences. See Towers, 191 S.W.3d at 193; see also

Montez v. Bailey County Elec. Coop., 397 S.W.2d 108, 111 (Tex. Civ. App.—Amarillo 1965,

writ ref’d n.r.e.) (“Estimates of age, size, weight, distance, etc. made by qualified

witnesses are generally held to be admissible”).         Because these portions were

improperly struck, we sustain issues two, three, and four in part.

                                  No-Evidence Motion

        We review a no-evidence summary judgment under the same standard of review

as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006).

“We review the evidence presented by the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” Id. at 582. A no-evidence summary

judgment will be defeated if the non-movant produces some evidence “raising an issue

of material fact” on the elements challenged by the movant. Id.

        A manufacturing defect exists when a product deviates, in its construction or

quality, from the specifications or planned output in a manner that renders it

unreasonably dangerous. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). In

addition to showing a “deviation from specifications or planned output,” the plaintiff

must show that the product was defective when it left the manufacturer and that the

defect was a producing cause of the plaintiff’s injuries. Ford Motor Co. v. Ledesma, 242

S.W.3d 32, 41-42 (Tex. 2007). Producing cause must be (1) a substantial cause of the


Lyon v. Atico Int’l USA, Inc.                                                      Page 4
event in issue and (2) a but-for cause, namely one without which the event would not

have occurred. Id. at 46.

        The Lyons argue that they have raised fact issues as to causation. We disagree.

“Requiring proof of a deviation from manufacturer specifications or planned output []

comports with our recognition that expert testimony is generally encouraged if not required

to establish a products liability claim.” Ledesma, 242 S.W.3d at 42 (emphasis added).

Expert testimony is required unless “general experience and common understanding

would enable the layperson to determine from the evidence, with reasonable

probability, the causal relationship between the event and the condition.” Tamez, 206

S.W.3d at 583; Driskill v. Ford Motor Co., 269 S.W.3d 199, 204 (Tex. App.—Texarkana

2008, no pet.). Whether expert testimony is required is a question of law. Tamez, 206

S.W.3d at 583.

        The Lyons have neither shown a “deviation from specifications or planned

output” nor ruled out other possible causes, such as a design defect.1 See Ledesma, 242

S.W.3d at 41-42; see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex.

2006) (Fact that tire failed was insufficient to establish a manufacturing defect, as such a

failure could have been caused by a design defect). Moreover, Bobbie’s testimony that

she has suffered injuries as a result of the accident is merely her subjective belief,

especially in light of her testimony suggesting that her pain could be affected by the

natural aging process and arthritis. See Carrozza, 876 S.W.2d at 314; see also Praytor v.



1      The Lyons alleged a design defect, but Atico’s no-evidence motion also challenged this claim.
The Lyons do not appeal on this basis.


Lyon v. Atico Int’l USA, Inc.                                                                Page 5
Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(Expert testimony was warranted where record showed that injuries could have

resulted from more than one cause). The evidence merely creates a suspicion that a

manufacturing defect caused the table to collapse, thereby causing Bobbie’s alleged

injuries. See Driskill, 269 S.W.3d at 205. Under these facts, causation is not within a

layperson’s general experience and common understanding; thus, expert testimony was

required to establish a manufacturing defect. The Lyons offered no expert testimony.

        Accordingly, we cannot say that the Lyons have raised a fact issue as to whether

the table was defective or any defect was a producing cause of the alleged injury. See

Ridgway, 135 S.W.3d at 600; see also Ledesma, 242 S.W.3d at 41-42. Issue one is overruled.

        The trial court’s judgment is affirmed.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 24, 2009
[CV06]




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