                                                                                    ACCEPTED
                                                                               04-14-00562-cv
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                          1/29/2015 1:27:44 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
                                                      01/29/2015 1:27:44 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
                                * * * * *
     REPLY BRIEF OF APPELLANTS, JESUS DE LOS SANTOS, JR.
  INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
  JESUS FRANCISCO DE LOS SANTOS AND JUAN DE LOS SANTOS

   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)

    ATTORNEYS 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

                  ORAL ARGUMENT REQUESTED


                                    i
                                             TABLE OF CONTENTS
                                                                                                                                 Page
TABLE OF CONTENTS .................................................................................................... ii

TABLE OF AUTHORITIES ............................................................................................. iii

ARGUMENT SUMMARY .................................................................................................. 1

ARGUMENT AND AUTHORITIES ............................................................................... 3

  I.     THE EVIDENCE SUPPORTED THAT THE EMBRITTLEMENT FRACTURE IN
         THE AXLE WAS A DEVIATION FROM THE PLANNED OUTPUT THAT
         CAUSED THE AXLE TO FAIL. .................................................................................. 3
            A.      Ford’s Own Expert Herrera: If the Axle Broke During the Slide, It
                    Was Defective Because It Did Not Perform As Intended. ................... 4
            B. The Fact That A “Recipe” Makes a Manufacturing Defect
               Possible Does Not Transform a Manufacturing Defect Into A
               Claim Solely For Design Defect. ....................................................................... 6
            C. Clauser Testified The Heat Treating Process Caused This Axle to
               Be Embrittled. ............................................................................................................ 8
  II. THE TRIAL COURT DID NOT MAKE ANY DAUBERT/ROBINSON RULING;
      CLAUSER’S OPINIONS ABOUT MANUFACTURING DEFECT WERE BASED ON
      A RELIABLE FOUNDATION.................................................................................... 13
CONCLUSION ................................................................................................................... 18

CERTIFICATE OF SERVICE .......................................................................................... 21

CERTIFICATE OF COMPLIANCE................................................................................ 21




                                                                    ii
                                      TABLE OF AUTHORITIES
                                                                                                               Page
Cases
American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) ............................................ 4
BIC Pen Corp. v. Carter, 346 S.W.3d 533 (Tex. 2011) .......................................................... 4
Casey v. Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014) ...................... 11
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................................. 2
Cooper Tire & Rubber Co. v. Mendez,204 S.W.3d 797 (Tex. 2006) ................................. 4, 11
Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) .................................................... 4, 9
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .................................................. 4, 9
Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998) ....................................... 14
iLight Techs., Inc. v. Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. –
  Houston [1st Dist.] 2013, pet. denied) .............................................................................. 9
Kindred v. ConChem, Inc., 650 S.W.2d 61 (Tex. 1983) ........................................................... 8
Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747 (Tex. App. – San Antonio 2002, no pet.) 14
Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009) ................................. 1
Torres v. Caterpillar, Inc., 928 S.W.2d 233 (Tex. App. – San Antonio 1996, writ denied) 8
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) ........................................................ 4




                                                           iii
                             ARGUMENT SUMMARY

      The issue in this appeal concerns the relationship between defects in design and

manufacture in a product liability action. Appellants were prohibited from asking the

jury whether the product in question was defective in its manufacture. The rear axle

of the subject pickup was shown to have a subsurface crack in the metal that caused it

to fail when subjected to much less force during a sideways slide than it was intended

to withstand. There was evidence that this particular axle had the subsurface cracking

and that – while the design process and metal “recipe” made it possible for this sort

of manufacturing defect to occur during manufacturing – the defective condition

itself was in the nature of a manufacturing defect because it was a deviation from the

intended output.

      Put another way, when every product in a given line is unreasonably dangerous

because of the process or recipe, there is a design defect. However, when only certain

units of the product leave the process in an unreasonably dangerous condition – the

claim is for manufacturing defect. The evidence in this case clearly supported that this

was a deviation from the planned output. The jury should have been asked to

determine whether there was a manufacturing defect.

      At this stage, this appeal is a review of the record to determine whether there

was a scintilla of evidence to support a manufacturing defect claim.          Tanner v.

Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). If there was, then the

Court must reverse and remand for a new trial. Ford tries to focus the Court on its
                                           1
own preferred facts to the exclusion of the controverting evidence as though this were

a jury trial – it is not. “The final test for legal sufficiency must always be whether the

evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

      Thus, the Court’s review of the record is constrained to evidentiary sufficiency

and Ford bore a heavy burden to establish that there was less than a scintilla of

evidence. Its failure to do so in the trial court denied Appellants a fair opportunity to

present their claims to the jury. To the extent Ford tries to draw the Court’s focus to

contrary evidence, those are matters that should be addressed to a jury.

      Ford tries to skirt this issue by suggesting the directed verdict was granted

because of Ford’s Daubert/Robinson challenge to Appellants’ expert, Clauser.

However, the record shows otherwise.            The trial court did not even rule on a

Daubert/Robinson challenge and clearly granted a directed verdict on the legally

mistaken notion that if the design of a product makes manufacturing defects more

likely, the claim solely presents a design defect theory. It is Ford – and not the

Appellants – who bear the burden of establishing the trial court abused its discretion

in allowing Clauser to testify. Clauser supported his manufacturing defect opinions

with specific and reliable facts and scientific analysis, backed up by peer-reviewed

publications and corroborated by the work and opinions of other experts whose

opinions Ford does not challenge.



                                            2
       On this record, this was an error that was even obvious to the jury, which sent

out a question specifically inquiring why it was not asked to find a manufacturing

defect after deliberations began. The trial court erred in granting a directed verdict.

This Court should reverse and remand for a new trial.

                       ARGUMENT AND AUTHORITIES

I.     THE EVIDENCE SUPPORTED THAT THE EMBRITTLEMENT
       FRACTURE IN THE AXLE WAS A DEVIATION FROM THE PLANNED
       OUTPUT THAT CAUSED THE AXLE TO FAIL.

       Ford continues to try to conflate a deviation from the planned output from a

production process with a design defect, arguing – quite illogically – that any

manufacturing defect that is made more likely by the design or process is solely a

design defect. If that were true, there would be no manufacturing defects, because

every deviation from the planned output is made possible by the design of the

product and the intended manufacturing process.

       Contrary to Ford’s attempts to conflate the two, Texas law recognizes a clear

distinction between design defects and manufacturing defects – and this Court need

only ask one question to determine this appeal: Does the evidence show that every

product produced by this process was unreasonably dangerous or does it show that

only occasionally would this process produce unreasonably dangerous products? If

the latter, the evidence supports a manufacturing defect claim and it was error to grant

a directed verdict.



                                           3
        At the outset, Ford insists on mischaracterizing the definition of a

“manufacturing defect” under Texas law, insisting that the only way to prove a

manufacturing defect is to point to something in the design drawings or specifications

the product did not meet. That simply is not consistent with how Texas law defines a

“manufacturing defect.”

        The following is the actual, legal definition:

        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.

This definition has been repeated numerous times by the Texas Supreme Court.1 It

applies when an unreasonably dangerous condition is a deviation from either the

specifications or the planned output. Here, there is more than a scintilla of evidence

that Ford axles were intended to not be embrittled with subsurface cracks so that they

could withstand more than 120,000 inch pounds of force in a sideways slide without

breaking.

        A. Ford’s Own Expert Herrera: If the Axle Broke During the Slide,
           It Was Defective Because It Did Not Perform As Intended.

        Indeed, the deviation from the expected ductile strength was established in part

by Ford’s own expert, Dr. Herrera, who ran a set of tests on non-defective axles

1
  Emphasis added. BIC Pen Corp. v. Carter, 346 S.W.3d 533, 540 (Tex. 2011); Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 41 n16 (Tex. 2007); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800
(Tex. 2006); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997); see also Torrington Co. v.
Stutzman, 46 S.W.3d 829, 844 (Tex. 2000) (“A product has a manufacturing defect if its construction
or quality deviates from the specifications or planned output in a way that is unreasonably
dangerous.”); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)(same).
                                                    4
showing they resist up to 120,000-128,000 inch pounds of force before failing.

(RR12:107) There was no dispute between the experts that if this axle broke during

the sideways slide, it would have broken at forces that were around one-fourth of

what it should have survived – 32,000 inch pounds. (RR13:39) Critically, even Ford’s

own expert agreed that if the axle broke during the sideways slide subjected only to

the 32,000 inch pounds of force, then it was probably defective. Dr. Herrera testified:

      Q: If the bending moment for a non-defective axle is 120,000 pounds,
      roughly?
      A: Correct.
      Q: And if a bending moment of 32,000 pounds, which is what you
      calculated would be going on in this scenario?
      A: Yes, sir.
      Q: I think you would agree that if there were a bending moment of
      32,000 pounds and it did break the axle, that axle would have failed,
      probably?
      A: Prematurely, probably. I agree . . .
      Q: -- Whatever the reason, it’s not supposed to fail at the moment that
      at least the trooper and Greenlee [sic] have said it failed?
      A: Agreed.
      Q: And if it failed because of things that were done during its
      manufacturing or design process, that would be a design or
      manufacturing defect?
      A: If – if that was the cause, yes.

(RR13:39-40)

      There was clearly enough evidence for the jury to conclude that the axle broke

during the sideways slide at only 32,000 inch pounds when it was intended to resist

around 120,000 inch pounds. Both the plaintiffs’ accident reconstructionist, William

Greenlees, and the Texas DPS’s expert accident reconstructionist, Sergeant Hardwick,



                                           5
concluded the axle broke during the slide and caused the pickup to roll. (RR4:209-213;

8:59, 64-65; 9:84)

      Ford does not challenge the reliability of any of the accident reconstruction

opinions. Rather, Ford’s arguments boil down to two things: (1) despite Clauser’s

opinion that this particular axle broke because of subsurface cracking that was not the

intended output of the manufacturing process and that not all the axles manufactured

by Ford’s process would be defective, Ford insists that the evidence solely supports a

design defect claim; and, (2) the trial court abused its discretion in letting Clauser

testify even though Clauser’s qualifications were unchallenged and he supported his

manufacturing defect with specific facts, logic and scientific examination and

evaluation of the broken axle.

      B. The Fact That A “Recipe” Makes a Manufacturing Defect
         Possible Does Not Transform a Manufacturing Defect Into A
         Claim Solely For Design Defect.

      Ford’s argument depends considerably on a gross mischaracterization of

Clauser’s opinion testimony. Clauser was very clearly of the opinion that the axle

failed due to a subsurface crack in the metal that weakened it. (RR6:69-111) He

based this conclusion on a microscopic examination of the broken axle, by which

Clauser was able to find the subsurface crack from which the failure of the axle

originated. (RR6:98-100) Clauser repeatedly explained that this was a deviation in




                                          6
this particular unit and that not all axles made through this process would be

defective, for example:

      And my contention isn’t that all Ford axles are embrittled. It doesn’t
      happen – I don’t believe it happens on every axle. So if I went and got
      another axle that was not embrittled, I would expect to get a much
      higher bending load to break it than I get on – than you would have
      gotten on these had you tested it before they were already broken.
      (RR6:148)

To be clear, Clauser did opine that a change to the steel recipe would reduce or

eliminate the risk of defective units being produced by that recipe, but that does not

mean that the condition of this unit was not a manufacturing defect. As the above

testimony makes clear, Clauser’s opinion was the intent of the process was not to

make embrittled axles that could not withstand expected levels of force. This is

repeated in Ford’s own brief:

      Still, according to Clauser, “the problem is the recipe. If you correct
      the recipe, you eliminate the manufacturing defects, because then the
      process . . . makes [a] good axle all the time.”

Appellee’s Brief at 17. The italics were added by Ford to distract the Court from the

rest of the sentence – and especially the part where Ford has to acknowledge Clauser

believed these were manufacturing defects occurring in particular units.

      Thus, when Ford argues on page 21 that the “only alleged defect Clauser

identified with the axle was the steel recipe,” Ford is attempting to mislead the Court.

The only design defect Clauser identified was the steel recipe. He clearly identified a

manufacturing defect in this particular axle – a subsurface crack in the metal resulting

                                           7
from the embrittlement of the steel during the heat treating process that, in turn,

caused the axle to weaken and fail at substantially less force than it was intended to

resist.

          Ford’s reliance on Kindred v. ConChem, Inc., 650 S.W.2d 61 (Tex. 1983), for the

proposition that strict liability cases involving chemical composition are solely design

defect cases is misplaced. To begin with, there was no manufacturing defect even

alleged in Kindred – it was solely a claim for design and marketing defects. Id. at 61.

More importantly, a review of the facts does not reveal anything suggesting that the

defective paint deviated from its intended output. Rather, the claim was predicated

on it being unsuitable as designed for use in the plaintiff’s facility and defectively

marketed. Id. There is nothing in that opinion to suggest that the claim was based on

a claim that the particular paint sold to the plaintiff was any different from all the rest

of the defendant’s paint.

          C. Clauser Testified The Heat Treating Process Caused This Axle
             to Be Embrittled.

          Ford’s argument depends next on a subtle attempt to distort Texas law. Ford

starts its argument about manufacturing defects by going back to an opinion from this

Court in 1996 to find a favorable phrasing of the definition of “manufacturing defect”

that it can work with for its argument. Appellee’s Brief at 18.2 Specifically, Ford

attempts to create the impression that a manufacturing defect solely revolves around


2
    Citing Torres v. Caterpillar, Inc., 928 S.W.2d 233, 239 (Tex. App. – San Antonio 1996, writ denied).
                                                      8
the manufacturer’s “design specifications” – which Ford argues creates a very narrow

constraint on how a party must demonstrate a manufacturing defect.

       To accomplish this feat Ford glosses over that ever since Grinnell, the Supreme

Court of Texas has consistently applied a different definition of manufacturing defect

that includes either “specifications or planned output.” See n1, supra. The omission

by Ford is especially glaring given that at least two of the supreme court’s opinions

applying the broader definition of manufacturing defect involved Ford as a party.3

       Thus, the plaintiff can demonstrate a deviation from either the specifications or

the planned output. There was more than a scintilla of evidence that the subject axle

deviated from the planned output. As described above and detailed more thoroughly

in Appellant’s principal brief, the subject axle was “embrittled” during the

manufacturing process resulting in a subsurface crack in this particular axle that

weakened the ability of the axle to withstand expected levels of force.

       Clauser did give and support the opinion that the defect occurred during the

manufacturing process. Thus, this case is distinguishable from iLight Techs., Inc. v.

Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. – Houston [1st Dist.]

2013, pet. denied). In iLight, the plaintiff opined that there was extra solder causing a

short inside the product, but offered no explanation of whether this was more or less

solder than called for in the product’s design specifications. Id. at 848.


3
 Ford Motor Co. v. Ledesma, 242 S.W.3d at n16 (Tex. 2007) and Ford Motor Co. v. Ridgway, 135 S.W.3d
at 600 (Tex. 2004).
                                                 9
      By contrast, 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. (RR7:79-80) This is why Clauser opined

that a change to the steel recipe would eliminate these manufacturing defects –

because the variables that cause this embrittlement that weakens the axles would not

yield defective units if the phosphorus were changed. Though Clauser could not

specify which specific combination of these variables caused the embrittlement of this

particular axle – he clearly did testify that some combination of these variable is the

reason that an axle would be embrittled and weakened as was the subject axle.

      Specifically, Clauser testified 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.)   Clauser explained that this “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?
                                           10
      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.

(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 a subsurface crack in the

metal, thereby creating an axle that was weaker than intended.

      Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex. 2006) and Casey v.

Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014), are also

distinguishable. In Mendez, there was little more than a passing reference on one and a

half pages of testimony to a manufacturing defect by the plaintiff’s expert, and no

attempt to explain how the physical evidence from the tire was consistent with a

defect created during the manufacture. The Mendez court concluded:

      These parting words relating to the cause of the tread separation were
      unreliable proof of a manufacturing defect. Milner did little more than
      throw out terms like “polishing” and “fracture surface” when stating, in
      conclusory fashion, that the belt separation must have originated at the
      plant.

Id. at 805. Here, by contrast, there are nearly forty pages of explanatory testimony,

with photographs taken through a high-powered microscope, showing the jury how

the steel of this particular axle was manufactured with a crack in the steel, how
                                          11
Clauser knows from the condition of the metal how the subsurface crack in the steel

was created during the manufacturing process, and how such embrittlement happens

during the heat treating process. (RR6:68-111) The jury was not left to guess why

this axle was too weak to withstand expected levels of force. Unlike Mendez, the

expert provided a clear, detailed and reliable explanation of how this axle left Ford’s

control in a condition more dangerous than other Ford axles.

      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. 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

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
                                           12
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.

         The evidence in this case is light years beyond what the plaintiffs produced in

Mendez and Casey.      A specific defect was identified – the steel of this axle was

embrittled during the manufacturing process (specifically during the heat treating).

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.

   II.      THE TRIAL COURT DID NOT MAKE ANY DAUBERT/ROBINSON
            RULING; CLAUSER’S OPINIONS ABOUT MANUFACTURING
            DEFECT WERE BASED ON A RELIABLE FOUNDATION

         The trial court did not grant a directed verdict because it found Clauser’s

opinion testimony unreliable.       And Ford has never contested Clauser’s expert

qualifications. There is no ruling sustaining a Daubert/Robinson objection to Clauser’s

testimony.      The trial court allowed Clauser to testify about all of his opinions.

Rather, it is clear from the record that the trial court granted directed verdict on the

manufacturing defect because the trial court was convinced that the claim was solely

for design defect since there was an allegation about the recipe for the steel:
                                            13
      [Ford’s counsel]: I – I do believe that the complaint here is about the
      recipe. If we didn’t have the right ingredients, had he put in a different
      ingredient, we would –
      The Court: Okay. I – I tell you what. My recollection of the testimony is
      ( -- I am – I’m going to agree with you, Ford.

(RR13:91-92)

      Thus, the reliability of Clauser’s opinions and admissibility under

Daubert/Robinson were never ruled on by the trial court. There is certainly nothing in

the record to indicate that Ford’s reliability objections were sustained or that Clauser’s

testimony was stricken from the record. Even if this issue were ripe for the Court’s

consideration, Ford would have to prove that the trial court abused its discretion in

allowing Clauser to testify about his manufacturing defect opinions. Gammill v. Jack

Williams Chevrolet, 972 S.W.2d 713, 718-719 (Tex. 1998)( acceptance of expert

testimony reviewed for abuse of discretion); Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d

747, 750 (Tex. App. – San Antonio 2002, no pet.)(“We review evidentiary rulings,

including rulings on expert testimony, for an abuse of discretion.”).

      Ford cannot meet that burden because Clauser supported his opinions with

reliable facts and a reliable methodology. First, as detailed extensively in Appellants’

brief, there was a lengthy explanation in the record of how Clauser examined the

fractured metal surface of the subject axle under powerful microscopes and found

tangible, physical evidence that the fracture of the axle occurred as a result of an

“intergranular” fracture – and that this fracture, in turn, resulted from a subsurface



                                           14
crack created during the heat treating process when the axle was manufactured.

(RR6:69-94)

      Moreover, three different accident reconstructionists testified before the jury

that the axle broke before the pickup rolled over – including two non-retained experts

who reconstructed the accident for the State of Texas. (RR4:110-114, 141, 207-210,

213-214) Neither side’s experts disagreed that the forces applied to the axle during

this sideways slide were around 32,000 inch pounds – as little as a quarter of the force

it should have taken to break an ordinary axle. (RR13:39-40)

      Ford’s defensive theory, which it tries to recast as a Daubert/Robinson challenge,

is that its own retained accident investigator disagrees with Greenlees and Sergeant

Hardwick that the axle broke prior to the truck rolling over. In other words, Ford’s

theory of the case, which it presented through its own controverting experts, was that

the axle broke after and as a result of the truck rolling over. Critically though, Ford’s

engineering expert tacitly conceded that if the axle broke at 32,000 inch pounds of

force and there were signs of a defect that caused it to fail, then it was defective.

(RR13:39-40)

      In short, the fact issue about which the expert’s actually disagreed was whether

the axle fracture was the cause or the victim of the rollover. That was a matter

entrusted to the jury. And even in this appeal Ford does not challenge the expert

opinions from Greenlees or Sergeant Hardwick supporting that the axle failed when

subjected to around ¼ of the amount of force it was intended to withstand.
                                           15
      Ford focuses on the idea that Clauser was unable to say which specific

combination of variables during the heat treating process were present that caused

this subsurface fracture to occur. But that is a red herring. Clauser’s physical

examination found the actual crack in the metal and he explained how it got there.

      In fact, Dr. Herrera saw the crack as well, agreeing that it was “not caused by a

bending load,” but that he otherwise had no explanation for the crack. (RR13:30-31)

This is a critical concession, because Ford’s entire theory of the case was that the axle

broke from a bending load after the truck began to roll over. If the fracture site

shows an intergranular fracture, rather than a microvoid coalescence consistent with a

bending load, then Clauser is correct – this was a manufacturing defect that existed

before the truck rolled.

      As for Clauser’s explanation for the crack in the metal at the origin of the

fracture, he was quite specific and detailed in supporting his conclusion. It was an

intergranular crack formed around the individual grain boundaries in the crystal of the

metal. (RR6:72, 75-77) This sort of crack results from the metal being embrittled

during the manufacturing process, not from dynamic bending loads, as Ford’s theory

of the case would require. (RR6:72-73) Rather, if Ford were correct, the origin of the

fracture would show “microvoid coalescence” where several holes or voids in the

metal pull together into a fracture. (RR6:77)

      Not only did Dr. Herrera agree that there was a subsurface crack in the axle

that he could not explain, but in discussing the “hardness” testing of the axle, Dr.
                                           16
Herrera also agreed that phosphorous content changes the brittleness of the steel

(what Herrera called the “plasticity” of the steel – the ability to bend without breaking

under the force of an impact).            (RR13:24-25)    The concept of plasticity or

embrittlement is distinct from “hardness.”        (Id.)   Thus, when asked about the

“hardness” testing that Ford discusses at length (the “Rockwell-C Hardness Test”) in

its brief to this Court, Dr. Herrera conceded that a test for the “hardness” of the steel

does not measure brittleness of the metal, which is the non-conformity at issue in this

case. (RR13:26) Dr. Herrera also agreed that an intergranular fracture was a sign of

“brittle” metal. (RR13:36) While this does not correlate to “weakness” or “hardness”

it does correlate to the embrittlement that Clauser testified was the deviation from the

planned output in this particular axle.

      Clauser supported this opinion with a peer-reviewed article. He relied on a

publication the American Society for Metals called “Fractography and the Atlas of

Fractographs” (RR6:78-80)       Based on the appearance of the fracture site and

comparing it to the information from the American Society of Metals, Clauser was

able to demonstrate for the jury that the axle broke because of an intergranular

fracture and not a microvoid coalescence – as Ford’s theory of the case would require.

(RR6:79-84).

      Finally, Clauser linked this embrittlement specifically to the activity of

phosphorous during the heat treating process. (RR6:77, 99, 106-107) During the heat

treating process, phosphorous causes edges to form around the grains in the steel that
                                             17
make the steel more brittle. (RR6:99) Thus, Clauser supported his opinion that this

axle was embrittled during the manufacturing process, resulting in a subsurface crack

at the origin of what a microscopic examination showed to be an intergranular

fracture. (RR6:69-94) The mere fact that changing the recipe to reduce the amount

of phosphorous would make this problem less likely (or even eliminate it) does not

change that the embrittlement of the steel is an unintended and occasional

consequence of heat treating metal that contains phosphorous. It is a manufacturing

defect – a deviation from the “planned output.” It is more brittle and less able to

withstand impact than it was supposed to be.

      Clauser backed up his manufacturing defect opinion up with direct,

microscopic, physical evidence, and checked it against peer-reviewed sources. It was

corroborated by testimony from three accident reconstructionists who agreed that the

axle fractured at a fraction of the force it should have resisted. Since the jury could

have agreed with those accident reconstructionists that the fracturing of the axle was

the cause and not a victim of the roll over, then the jury should have been asked a

question about manufacturing defect based on the evidence in this record.

                                  CONCLUSION

      The trial court abused its discretion by granting directed verdict on the De Los

Santos plaintiffs’ manufacturing defect claim and refusing to allow the jury to consider

the manufacturing defect theory that was supported by the evidence. The trial court

did not abuse its discretion by allowing Clauser to testify about a manufacturing
                                          18
defect opinion where he supported his opinions with a reliable scientific foundation.

The judgment in this case should be reversed, and this case should be remanded 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
                                       (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

                                         19
REPRESENTATIVE OF THE ESTATE
OF JESUS FRANCISCO DE LOS SANTOS
AND JUAN DE LOS SANTOS




 20
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has been
forwarded on this 29th day of January, 2015 to Appellee’s and Cross-appellant’s counsel
of record via 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 4,956. The text
of the body of this brief is in the Garamond font, size 14pt. The footnotes are
produced in Garamond 12pt. font.




                                          ____________________________________
                                          Brendan K. McBride




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