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–
