     Case: 11-20325   Document: 00511941735   Page: 1   Date Filed: 08/01/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                 FILED
                                                                August 1, 2012

                                 No. 11-20325                   Lyle W. Cayce
                                                                     Clerk

ROGERS SMITH, Individually and as Heirs of the Estates of Rogers Smith
III, Deceased, and Rekesha Hopkins, Deceased; WINONA SMITH,
Individually and as Heirs of the Estates of Rogers Smith III, Deceased, and
Rekesha Hopkins, Deceased; GEORGIA RANDLE, as Next Friend of K.R. a
Minor, Individually and as Heirs of the Estate of Kaven Randle, Deceased;
KARRY BROWN, as Next Friend of K.R. a Minor, Individually and as Heirs
of the Estate of Kaven Randle, Deceased; MARGARET RANDLE, as Next
Friend of K.R. a Minor, Individually and as Heirs of the Estate of Kaven
Randle, Deceased; JEREMY VEAZIE, as Next Friend of K.R. a Minor,
Individually and as Heirs of the Estate of Kaven Randle, Deceased; TERRIE
GREEN, as Next Friend of K.R. a Minor, Individually and as Heirs of the
Estate of Kaven Randle, Deceased; SCHRHONDA RANDLE, Individually
and as Heirs of the Estate of Kaven Randle, Deceased,

                                          Plaintiffs - Appellants
PHIL JACKSON, JR.

                                          Intervenor Plaintiff - Appellant

v.

ROBIN AMERICA, INC., doing business as Subaru-Robin; FUJI HEAVY
INDUSTRIES USA, INC.; FUJI HEAVY INDUSTRIES LTD.,

                                          Defendants - Appellees



                 Appeal from the United States District Court
                      for the Southern District of Texas
                          U.S.D.C. No. 4:08-cv-03565
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                                       No. 11-20325

Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This products liability action arises from the deaths of Rogers Smith III,
Rekesha Hopkins, and Kaven Randle (“decedents”) from carbon monoxide
poisoning. In the aftermath of Hurricane Ike, sometime between September
13th and September 18th of 2008, decedents operated a Black Max 6560 portable
generator manufactured by Powermate Corporation inside a closed garage
attached to a one-story home in Houston. At some point during this period,
carbon monoxide emissions from the generator killed decedents.                      Several
survivors of decedents appeal the district court’s grant of summary judgment to
the defendant corporation that manufactured the generator’s engine under the
component parts doctrine, adopted by the Texas Supreme Court. With limited
exceptions, that doctrine shields suppliers of component parts — as opposed to
manufacturers of finished consumer products — from liability in products
liability actions.     Because we conclude that the district court correctly
determined that, under the component parts doctrine, the engine manufacturer
had no duty to the decedents, we AFFIRM the grant of summary judgment.
                                    BACKGROUND
       Plaintiffs-Appellants in this action (“plaintiffs”) are various survivors of
the decedents. Defendants-Appellees (collectively “Fuji” or “defendants”) are
Fuji Heavy Industries, the Japanese manufacturing company that built the
generator engine and several subsidiaries including Robin America, Inc., which
distributes Fuji’s small engines in the United States. Plaintiffs brought state
law claims for negligence, negligent misrepresentation, wrongful death, products




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                       No. 11-20325

defects, and survivorship damages against Fuji, Powermate,1 and others. There
is no dispute that Fuji manufactured the generator engine and supplied it to
Powermate. The complaint alleged, inter alia, that Fuji breached duties owed
to decedents by failing to adequately warn foreseeable users of the inherent risks
associated with using the generator; failing to use ordinary care in providing
adequate warning labels; and designing and marketing a defective generator
that was unreasonably dangerous for its intended use.
      After discovery, Fuji moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56(a). The district court determined that Fuji was not
the manufacturer of the generator but merely of the engine as a component part.
The district court further concluded that Fuji had no duty to decedents under the
component parts doctrine set forth in the Restatement (Third) of Torts: Products
Liability § 5 (hereafter Restatement (Third)), and adopted by the Texas Supreme
Court, whereby a component manufacturer only has a duty to warn if (1) the
component itself is defective or (2) if the component manufacturer actively
participated in integrating the component into the final product. Accordingly,
the district court granted Fuji’s motion for summary judgment. Plaintiffs timely
appealed.
                               STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the trial court. Urbano v. Continental Airlines,
Inc., 138 F.3d 204, 205 (5th Cir. 1998). Summary judgment is proper if the
evidence shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001). The court views
all evidence in the light most favorable to the non-moving party and draws all


      1
          Powermate was dismissed from the suit after settling with plaintiffs.

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reasonable inferences in that party’s favor. Crawford v. Formosa Plastics Corp.,
234 F.3d 899, 902 (5th Cir. 2000). The initial burden falls on the movant to
identify areas essential to the nonmovant’s claim in which there is an “absence
of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d
347, 349 (5th Cir. 2005). Once the movant meets its burden, the nonmovant
must direct the court’s attention to evidence in the record sufficient to establish
that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). The nonmoving party must produce evidence upon
which a jury could reasonably base a verdict in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); DirectTV Inc. v. Robson, 420 F.3d 532, 536
(5th Cir. 2005). To do so, the nonmovant must “go beyond the pleadings and by
. . . affidavits[,] . . . depositions, answers to interrogatories and admissions on
file, designate specific facts that show there is a genuine issue for trial.” Webb
v. Cardiothoracic Surgery Assoc. of N. Tex., P.A., 139 F.3d 532, 536 (5th Cir.
1998), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,
126 S. Ct. 2405, 2414 (2006). Unsubstantiated and subjective beliefs and
conclusory allegations and opinions of fact are not competent summary judgment
evidence. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
1998). This court may affirm the district court’s grant of summary judgment on
any grounds supported by the record. Griffin v. United Parcel Serv., Inc., 661
F.3d 216, 221 (5th Cir. 2011).
      Texas law controls this diversity action, and in applying Texas law, this
court “must do that which [it] think[s] the Texas Supreme Court would deem
best.” Calbillo v. Cavendar Oldsmobile, Inc., 288 F.3d 721, 729 (5th Cir. 2002)
(brackets and internal quotation mark omitted). In applying Texas law in this
area, this court has noted that “[t]he Texas Supreme Court has long looked to
the Restatement of Torts as an influential guide in products liability law, and has
recently heavily relied on the refinements in such law reflected in Restatement

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Third, Torts: Products Liability.” Cimino v. Raymark Indus., Inc., 151 F.3d 297,
334 (5th Cir. 1998); see also Bostrom Seating, Inc. v. Crane Carrier Co., 140
S.W.3d 681, 683-85 (Tex. 2004) (applying Restatement (Third) § 5, as anticipated
in Cimino, 151 F.3d at 334).
                                 DISCUSSION
      Under Texas law, “[i]n order to recover for an injury on the theory of
products liability, the plaintiff bears the burden of proving that (1) the defendant
placed a product into the stream of commerce; (2) the product was in a defective
or unreasonably dangerous condition; and (3) there was a causal connection
between that condition and the plaintiff's injuries or damages.”            Ranger
Conveying & Supply Co. v. Davis, 254 S.W.3d 471, 479 (Tex. App. 2007) (citing
Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d 784, 785 (Tex. 1988);
Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978)). “A product
may be unreasonably dangerous . . . because of a failure to provide adequate
warnings or instructions,” known as a “marketing defect.” Id. at 480 (citing Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997); Caterpillar, Inc. v.
Shears, 911 S.W.2d 379, 382 (Tex. 1995); Turner v. Gen. Motors Corp., 584
S.W.2d 844, 847 (Tex. 1979)). “A marketing defect is proven when the evidence
shows that a defendant fails to warn of a product’s potential dangers, when
warnings are required, and that the lack of adequate warnings or instructions
renders an otherwise adequate product unreasonably dangerous.” Id. (citing,
inter alia, Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 377 (Tex. 1984)). “The
elements of a marketing defect cause of action are (1) a risk of harm must exist
that is inherent in the product or that may arise from the intended or reasonably
anticipated use of the product, (2) the supplier of the product knows or
reasonably should foresee the risk of harm at the time the product is marketed,
(3) the product has a marketing defect, (4) the lack of instructions or warnings
renders the product unreasonably dangerous to the ultimate user or consumer

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of the product, and (5) the failure to warn or instruct causes the user’s injury.”
Id. (citing Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 578 (Tex. App. 2004)).
      The Texas Supreme Court has explained that “a defendant’s failure to
warn of a product’s potential dangers when warnings are required is a type of
marketing defect. . . . Generally, a manufacturer has a duty to warn if it knows
or should know of the potential harm to a user because of the nature of its
product.” Grinnell, 951 S.W.2d at 426 (citations omitted). “In Texas, . . .
whether a duty exists is a question of law for the court to decide from the facts
surrounding the occurrence in question.” Ford v. Cimarron, Ins. Co., 230 F.3d
828, 830 (5th Cir. 2000). Accordingly, in order to ascertain whether a Texas tort
plaintiff can survive a summary judgment motion in which the defendant argues
it owed no legal duty to the plaintiff, the court “must ascertain whether [the
plaintiff] proffered evidence raising a material fact issue as to whether” such a
duty existed. See Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 543 (5th
Cir. 2005).
      Here, plaintiffs argue that the district court erred in concluding that
defendants had no duty to provide warnings as a matter of law. Plaintiffs argue
that Fuji had a duty to warn decedents of the dangers of carbon monoxide
poisoning associated with operating a portable generator in an attached garage
because Fuji either (1) manufactured the generator, rather than merely
supplying the engine as a component part; (2) had a duty as a component part
supplier because the engine was defective and Fuji actively participated in
integrating the engine into the final generator; or (3) assumed a duty to warn by
placing inadequate warnings on the engine.
I. Whether Fuji Manufactured the Generator
      Plaintiffs argue that the component parts doctrine does not apply because
Fuji owed decedents a duty as the manufacturer of the generator itself.
Plaintiffs argue that Fuji should be considered the manufacturer of the

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generator because the engine essentially is the generator; Fuji’s brand name
“Subaru” is prominently displayed on the generator, creating a presumption that
Subaru is the manufacturer under the “branded car doctrine”; and Fuji actively
worked with Powermate to such a high degree in the design and integration
process of the engine, that Fuji should be considered to be the manufacturer.
These arguments lack merit.
      First, plaintiffs argue that the engine was a final, completed product
designed for use as a generator.       However, plaintiffs fail to point to any
probative evidence that Fuji manufactured the generator. Rather, all the record
evidence indicates that Powermate manufactured the generator, incorporating
the Fuji engine as a component part. The affidavits and depositions by current
and former Powermate and Fuji executives all indicated as much. For instance,
former Powermate Vice President Tom Graber averred that “Powermate
included component engines from a number of different manufacturers,
including from [Fuji], Honda, and others[,] . . . [and] integrated the component
engines, along with all other component parts from other component
manufacturers, into the generator to assemble a final product for sale to the
public.” Plaintiffs fail to point to any contrary evidence creating a genuine issue
of fact as to whether Fuji, rather than Powermate, manufactured the final
generator product. See Cimino v. Raymark Industries, Inc., 151 F.3d 297, 332
(5th Cir. 1998) (“Some components, such as raw materials, valves, or switches,
have no functional capabilities unless integrated into other products. Other
components, such as a truck chassis or a multi-functional machine, function on
their own but still may be utilized in a variety of ways by assemblers of other
products.” (emphasis added) (quoting Restatement (Third) § 5 cmt. a, which the
court correctly predicted the Texas Supreme Court would adopt)); Ranger, 254
S.W.3d at 481-85 (rejecting plaintiff’s argument that conveyor manufactured by
defendant was not a component of “larger bale-handling system” because

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defendant’s “conveyors stood alone and . . . their only purpose was to act as
conveyors,” and instead concluding that defendant “had no duty to warn of the
dangers of the larger system . . . because the conveyor was a component of the
larger bale-handling system” (internal quotation mark omitted)); Restatement
(Third) § 5 cmt. d (“Product components include products that can be put to
different uses depending on how they are integrated into other products. For
example, . . . an engine for industrial machines may be adapted to a variety of
different industrial uses.”).
      Second, plaintiffs argue that, under the “branded car doctrine,” Fuji is
presumed to be the manufacturer of the generator because the Fuji brand name
“Subaru” is prominently displayed on the generator. “Under the branded car
doctrine, evidence that the name of a corporation or individual is printed on the
side of the vehicle raises a presumption that the party is the owner of the
vehicle.”   Better Beverages, Inc. v. Meschwitz, 643 S.W.2d 502, 504 (Tex. App.
1982). Texas courts have “extend[ed] the branded car doctrine to apply to cases
involving identification of the manufacturer” of a product. Id. However, this
presumption “is not conclusive, . . . and can be rebutted by evidence to the
contrary.” Id. (citing Maintenance & Equipment Contractors v. John Deere Co.,
554 S.W.2d 28 (Tex. Civ. App. 1977); accord Mobley v. Moulas, 468 S.W.2d 116,
119 (Tex. Civ. App. 1971) (“[T]he [branded car] doctrine merely creates a
rebuttable presumption . . . which ceases to have effect, application or function
upon the introduction of direct and positive evidence establishing the contrary.”).
Here, the record evidence is sufficient to rebut a presumption arising under the
branded car doctrine. See Better Beverages, 643 S.W.2d at 504 (determining that
defendant soda company rebutted presumption arising from presence of its
trademark on bottle by evidence showing separate company manufactured soda
purchased by plaintiff); Mobley, 468 S.W.2d at 119 (determining presumption



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rebutted by evidence establishing that bus was owned and operated by company
other than defendant although defendant’s name was on bus).
      Finally, plaintiffs argue that Fuji’s level of involvement in working with
Powermate rises to such a degree that Fuji should be considered the
manufacturer of the generator. However, plaintiffs’ contentions regarding the
extent of Fuji’s collaboration with Powermate are properly analyzed under the
“substantial participation” exception to the component parts doctrine, see
Restatement (Third) § 5(b), which we will address below.
II. Application of the Component Parts Doctrine
      In Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex. 2004),
the Texas Supreme Court adopted the component parts doctrine, whereby “if the
component-part manufacturer does not participate in the integration of the
component into the finished product, it is not liable for defects in the final
product if the component itself is not defective.” Id. at 683 (citing, inter alia,
Restatement (Third) § 5). Section 5 provides:
            One engaged in the business of selling or otherwise
      distributing product components who sells or distributes a
      component is subject to liability for harm to persons or property
      caused by a product into which the component is integrated if:
           (a) the component is defective in itself, as defined in this
      Chapter, and the defect causes the harm; or
            (b)(1) the seller or distributor of the component substantially
      participates in the integration of the component into the design of
      the product; and
            (b)(2) the integration of the component causes the product to
      be defective, as defined in this Chapter; and
             (b)(3) the defect in the product causes the harm.
Restatement (Third) § 5. Plaintiffs argue that the component parts doctrine does
not shield Fuji from liability on the alternative grounds that Fuji “substantially
participate[d] in the integration of the [engine] into the design of the [generator]”


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and that the “component [engine] was defective in itself.” See id. We address
these arguments in turn and determine that the summary judgment record does
not create a genuine issue of material fact as to either contention.
      First, plaintiffs argue that the evidence creates a genuine issue of material
fact as to whether Fuji actively participated in the integration of its engine into
the generator. Plaintiffs argue that Fuji actively participated in integration by
designing the engine specifically for the generator and sending its engineers to
Powermate’s facilities to work hand-in-hand in the design and integration
process. We also consider here those portions of the record plaintiffs reference
in their argument that Fuji’s allegedly close relationship with Powermate means
Fuji manufactured the generator.
      The summary judgment evidence does not give rise to a genuine issue of
fact as to whether Fuji substantially participated in the integration of the engine
into the design of the generator, within the meaning of Restatement (Third)
§ 5(b)(1), which the Texas Supreme Court would look to in addressing the
matter. See Cimino, 151 F.3d at 334; Bostrom Seating, 140 S.W.3d at 683. The
pertinent evidence is as follows.       Graber averred: “Powermate included
component engines from a number of different engine manufacturers, including
from [Fuji], Honda, and others. . . . [Fuji] . . . w[as] not involved with Powermate
in a joint venture with respect to the sale of Powermate generators. Powermate
integrated the component engines, along with all other component parts from
other component manufacturers, into the generator to assemble a final product
for sale to the public. Generally, [Fuji] would provide mechanical and technical
assistance to ensure that [Fuji]’s component engines operated as designed when
mounted. However, where given, this assistance was minimal[] . . . .” Brad
Murphy, Robin America’s Vice President of Sales and Marketing, testified that
a Fuji engineer visited Powermate’s “facilities” in order to answer “technical
questions” such as questions about “the power that the engine produces and . . .

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how it will interact with . . . [Powermate’s] product.” Finally, Hitoshi Taguchi,
a Fuji Corporate Representative, testified that the engine here was designed
“according to [Powermate’s] specifications[] . . . in which the fuel tank does not
come with the engine,” whereas Fuji’s general purpose engines generally come
with their own fuel tank.
      This evidence does not create a genuine issue of fact as to whether Fuji
substantially participated in integrating its engine into the generator design.
Several illustrations from the commentary to § 5 are instructive in determining
whether the level of participation indicated by the evidence here is sufficient to
subject Fuji to liability under § 5(b):
      Substantial participation in the integration of the component into the
      design of another product.        When the component seller is
      substantially involved in the integration of the component into the
      design of the integrated product, the component seller is subject to
      liability when the integration results in a defective product and the
      defect causes harm to the plaintiff. Substantial participation can
      take various forms. The manufacturer or assembler of the
      integrated product may invite the component seller to design a
      component that will perform specifically as part of the integrated
      product or to assist in modifying the design of the integrated
      product to accept the seller’s component. Or the component seller
      may play a substantial role in deciding which component best serves
      the requirements of the integrated product. When the component
      seller substantially participates in the design of the integrated
      product, it is fair and reasonable to hold the component seller
      responsible for harm caused by the defective, integrated product. A
      component seller who simply designs a component to its buyer’s
      specifications, and does not substantially participate in the
      integration of the component into the design of the product, is not
      liable within the meaning of Subsection (b). Moreover, providing
      mechanical or technical services or advice concerning a component
      part does not, by itself, constitute substantial participation that
      would subject the component supplier to liability.




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Restatement (Third) § 5 cmt. e; see also Toshiba Int’l, 152 S.W.3d at 778
(applying this comment). None of these illustrations are analogous to the
circumstances evidenced here.
      Rather, all the evidence indicates that the engine at issue was a general
multi-purpose small engine of a kind that Fuji sold to various manufacturers,
similar to other engines that Powermate purchased from Fuji, Honda, and other
engine manufacturers for use in Powermate generators. The evidence indicates
that Fuji provided the engine to Powermate without its own fuel tank, pursuant
to Powermate’s specifications, but that this was the only sense in which the
engine was designed or built to Powermate’s specifications. The Restatement
explains that “[a] component seller who simply designs a component to its
buyer’s specifications, . . . is not liable within the meaning of [§ 5](b).” Id.
Whatever the extent of any technical advice Fuji engineers may have made
available to Powermate — which the record indicates was minimal — “providing
mechanical or technical services or advice concerning a component part does not,
by itself, constitute substantial participation that would subject the component
supplier to liability.” Id.
      Moreover, plaintiffs’ argument fails even assuming that Fuji substantially
participated in integrating the engine within the meaning of § 5(b)(1). In order
to show that a component part maker is subject to liability under § 5(b), a
plaintiff must show not only that the component part maker “substantially
participate[d] in the integration of the component into the design of the product,”
but also, inter alia, that “the integration of the component cause[d] the product
to be defective.” Restatement (Third) § 5(b)(1)-(3); see also id. § 5 cmt. f (“The
mere fact that the component seller substantially participates in the integration
of the component into the design of a product does not subject the seller to
liability unless the integration causes the product to be defective . . . . The
component seller is not liable for harm caused by defects in the integrated

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product that are unrelated to the component.”). Here, plaintiffs do not even
argue that the integration of the engine into the design of the generator had any
effect on the nature of the warnings that Powermate placed on the generator,
and point to no evidence going to this point, and our review of the record
indicates that no genuine issue of fact exists with respect to this requirement.
Rather, Graber’s uncontroverted affidavit stated that “Powermate did not fail to
place applicable warnings on its generators or . . . modify or change its own
warnings based on” its use of Fuji engines. Thus, plaintiffs fail to demonstrate
the existence of a genuine fact issue as to a necessary factual predicate to their
“substantial participation” argument. See Malacara v. Garber, 353 F.3d 393,
404 (5th Cir. 2003) (“To survive summary judgment, the nonmovant must
submit or identify evidence in the record to show the existence of a genuine issue
of material fact as to each element of the cause of action.”).
      Plaintiffs argue in the alternative that Fuji had a duty under the
“defective component” exception to the component parts doctrine.                            See
Restatement (Third) § 5(a). They contend that the engine had a design defect
that rendered it unreasonably dangerous for its intended use because it was not
equipped with an automatic cut-off switch to shut down the engine when carbon
monoxide levels were building to an unsafe level or a carbon monoxide detection
system.
      Under Texas law, “[w]hen a claimant alleges a design defect, the burden
is on the claimant to prove by a preponderance of the evidence that (1) there was
a safer alternative design and (2) the defect was a producing cause of the
personal injury, property damage, or death for which the claimant seeks
recovery.” Hunter v. Ford Motor Co., Inc., 305 S.W.3d 202, 209 (Tex. App. 2009)
(citing Tex. Civ. Prac. & Rem. Code § 82.005(a)(1), (b)).2

      2
        Section § 82.005 provides in relevant part:
      (a) In a products liability action in which a claimant alleges a design defect, the

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                                       No. 11-20325

       Plaintiffs have failed to point to any summary judgment evidence creating
a genuine issue of fact as to this question. The only portions of the record
discussing such devices do nothing to evidence that such devices “w[ere]
economically and technologically feasible at the time the [engine] left [Fuji’s]
control,” see Tex. Civ. Prac. & Rem. Code § 82.005(b)(1), nor that a generator
engine without such a device is defective. Plaintiffs point to an October 26, 2006
U.S. Consumer Products Safety Commission (“CPSC”) staff report as evidencing
the safety benefits of such devices and the viability of building them into
portable generators. The only page of that report addressing the devices
plaintiffs contend were required indicates that “[i]nterlocking or [a]uto [s]hutoff
[d]evices” are “[s]ensors [that] shutoff [sic] generator[s] if CO buildup is
detected.” The report states that “CPSC staff demonstrated proof-of concept3 for
two approaches”: (1) “[d]etect CO in vicinity of operating generator” with a “CO
sensor mounted on generator”; and (2) “[d]etect CO where occupants are located”
with a “CO sensor in home with wireless connection to generator.” However, the
report also alludes to remaining problems with the feasibility of such devices,
referring to a need to “[a]ddress technical and human factors issues” with such


       burden is on the claimant to prove by a preponderance of the evidence that:
               (1) there was a safer alternative design; and
               (2) the defect was a producing cause of the personal injury, property
       damage, or death for which the claimant seeks recovery.
       (b) In this section, “safer alternative design” means a product design other than
       the one actually used that in reasonable probability:
               (1) would have prevented or significantly reduced the risk of the
               claimant’s personal injury, property damage, or death without
               substantially impairing the product’s utility; and
               (2) was economically and technologically feasible at the time the product
               left the control of the manufacturer or seller by the application of
               existing or reasonably achievable scientific knowledge.
       Tex. Civ. Prac. & Rem. Code § 82.005(a), (b).
       3
         “Proof of concept” refers to “evidence (usually deriving from an experiment or pilot
project) demonstrating that a design concept, business idea, etc., is feasible[] [or] a piece of
such evidence.” Oxford Eng. Dict. (Online), “proof of concept.”

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devices, including issues involving “[s]ensor reliability and durability,”
“[l]ocating in-home sensors in proper locations,” and the risk of creating a “[f]alse
sense of security.”      Viewing this document in the light most favorable to
plaintiffs, there is simply no indication that the CPSC staff’s standard for “proof
of concept” aligns with the feasibility requirements of Texas products liability
law. See Tex. Civ. Prac. & Rem. Code § 82.005. Moreover, the 2006 report
postdates the 2005 manufacture of the engine at issue,4 and the report refers to
auto shutoff devices “mounted on [a] generator,” indicating that the device at
issue would, logically, be an additional component of a complete generator,
rather than a sub-component of the generator’s component engine. Thus, the
report does not raise a genuine issue of fact as to whether a component engine
made in 2005 was defective without an automatic shutoff device.
       Accordingly, plaintiffs have not shown the existence of a material fact as
to whether Fuji is subject to liability under the defective component exception
to the component parts doctrine. See, e.g., Caterpillar, Inc. v. Shears, 911 S.W.2d
379, 384 (Tex. 1995) (“Because [plaintiff] offered no evidence of a safer design for
a loader that could perform the same tasks as the Caterpillar model 920, we hold
that this product is not defectively designed as a matter of law.”).
       Because the record does not contain evidence creating a genuine issue of
fact regarding either of plaintiffs’ arguments that the component parts doctrine
does not apply, the district court was correct to grant Fuji’s motion for summary
judgment on that basis.
                                     CONCLUSION
       The summary judgment evidence, viewed in the light most favorable to
plaintiffs, shows that there is no genuine issue as to any material fact and that



       4
         See Tex. Civ. Prac. & Rem. Code § 82.005(b)(2) (requiring an inquiry into feasibility
of an alternative design “at the time the product left the control of the manufacturer”).

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  Case: 11-20325   Document: 00511941735   Page: 16   Date Filed: 08/01/2012



                               No. 11-20325

the movants are entitled to a judgment as a matter of law. Accordingly, the
district court’s summary judgment in favor of the defendants is AFFIRMED.




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