     Case: 13-11119   Document: 00512808055     Page: 1   Date Filed: 10/20/2014




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

                                                                         FILED
                                                                     October 20, 2014
                                 No. 13-11119
                                                                      Lyle W. Cayce
                                                                           Clerk
SCOTT E. CASEY, Individually, as Administrator of the Estate of Dawna
Marie Casey, Deceased and as Next of Friend of R.W.C. and A.L.C., his minor
children; ROBERT JAMES GILLIS,

                                           Plaintiffs – Appellants
v.

TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH
AMERICA, INCORPORATED; TOYOTA MOTOR MANUFACTURING,
INDIANA, INCORPORATED; TOYOTA MOTOR CORPORATION; CTS
CORPORATION; TOYOTETSU AMERICA, INCORPORATED,

                                           Defendants – Appellees


                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, GRAVES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Plaintiffs-Appellants Scott E. Casey and Robert James Gillis (collectively
“Casey”) filed this products liability suit against Defendants-Appellees
(collectively “Toyota”) stemming from a tragic single-car automobile accident
in which Scott Casey’s wife Dawna suffered fatal injuries. Among other claims,
Casey brought manufacturing and design defect claims based on the failure of
the vehicle’s side curtain airbag to prevent Mrs. Casey’s death. The district
court granted judgment as a matter of law in favor of Toyota on Casey’s
manufacturing and design defect claims.       Because Casey did not provide
    Case: 13-11119      Document: 00512808055        Page: 2    Date Filed: 10/20/2014



                                    No. 13-11119
sufficient evidence that the side curtain shield airbag suffered from a
manufacturing defect or that there was a safer alternative design, we AFFIRM.
                         FACTS AND PROCEEDINGS
      On April 29, 2010, Dawna Casey was driving her 2010 Toyota
Highlander on North Tarrant Parkway in Tarrant County, Texas, with her two
children in the back seat. Mrs. Casey was driving at a high rate of speed that
was not a result of any unintended acceleration caused by the vehicle. The
vehicle left the roadway, continued on the center median, then re-entered the
roadway before striking a concrete culvert. The vehicle flew in the air for 130
feet, reaching a height of ten feet, and rolled two-and three-quarters times
before coming to rest on the driver’s side. Mrs. Casey was partially ejected
through the side window and her head was trapped beneath the car. Mrs.
Casey was declared dead at the scene of the accident. The children did not
suffer significant physical injuries from the accident.
      Scott Casey, along with Mrs. Casey’s father, Robert Gillis, sued five
Toyota entities, the car dealership, and three component manufacturers, on
behalf of Dawna Casey and their children. 1 Casey alleged multiple theories of
liability arising from defects in the braking, restraint, and airbag systems.
Before trial, the district court granted summary judgment dismissing one of
the component manufacturer defendants, 2 and Casey voluntarily dismissed




      1  These entities were Toyota Motor Engineering and Manufacturing North America,
Inc.; Toyota Motor Manufacturing, Indiana, Inc.; Toyota Motor Corporation; Toyota Motor
Sales, U.S.A., Inc.; Toyota Motor North America, Inc.; CTS Corporation; Toyotetsu America
Inc.; Denso International America, Inc.; Freeman Financial Investment Company, Ltd. d/b/a
Freeman Toyota.
       2 CTS Corporation.

                                           2
     Case: 13-11119       Document: 00512808055         Page: 3    Date Filed: 10/20/2014



                                      No. 13-11119
two Toyota entities, an additional component manufacturer, and the
dealership. 3 The remaining defendants proceeded to trial.
       At trial, Casey introduced deposition testimony from Motoki Shibata, a
Toyota engineer, that the side curtain shield airbags were designed to remain
inflated for approximately six seconds, and that the time for deflation
depended on the type of force applied to the airbag. During the accident, the
side curtain airbag remained inflated for only approximately two seconds.
Plaintiffs’ expert, Dr. David Renfroe, testified that he was unaware of any
testing of the side curtain air bag under real-world conditions. Casey also
introduced a patent application for an abrasion and/or puncture resistant
airbag, about which Renfroe also testified.
       After Casey presented evidence at trial and rested, the parties stipulated
to a judgment as a matter of law in favor of Toyota on five claims. 4 The district
court also granted judgment as a matter of law in favor of Toyota on Casey’s
manufacturing and design defect claims relating to the failure of the side
curtain shield airbags to prevent Dawna Casey’s death. The parties stipulated
to dismissal of Casey’s remaining claims without prejudice, 5 permitting a final
judgment and allowing this appeal of the district court’s grant of judgment as
a matter of law as to Casey’s manufacturing and design defect claims.




       3  Toyota Motor North America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Denso
International America, Inc.; and Freeman Financial Investment Company, Ltd.
       4 These claims, which were dismissed with prejudice, were for misrepresentation,

marketing defect, defects in the roof structure, defects in the handling and stability of the
vehicle, and defects in the window glazing.
       5 These claims were for manufacturing and design defects as to the seatbelt system

and braking system, as well as for gross negligence.
                                             3
    Case: 13-11119     Document: 00512808055      Page: 4   Date Filed: 10/20/2014



                                  No. 13-11119
                          STANDARD OF REVIEW
      This Court reviews the district court’s grant of judgment as a matter of
law de novo, applying the same legal standard as the district court. Coffel v.
Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002). Judgment as a matter of law
is proper “[i]f a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. (50)(a)(1).
“In entertaining a Rule 50 motion for judgment as a matter of law the court
must review all of the evidence in the record, draw all reasonable inferences in
favor of the nonmoving party, and may not make credibility determinations or
weigh the evidence.” Ellis v. Weasler Eng’g Inc., 258 F.3d 326, 337 (5th Cir.),
amended on other grounds, 274 F.3d 881 (5th Cir. 2001). The court must
review the record as a whole, but “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Id.
                                 DISCUSSION
      I.    Manufacturing Defect
      Texas products liability law controls this diversity case. Under Texas
law, “[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.” Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797, 800 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004)). Casey bears the burden of proving “that the
product was defective when it left the hands of the manufacturer and that the
defect was a producing cause of the plaintiff’s injuries.” Id.




                                        4
    Case: 13-11119     Document: 00512808055      Page: 5   Date Filed: 10/20/2014



                                  No. 13-11119
            a. Product’s deviation from the specifications or planned
               output.
      To prove a manufacturing defect under Texas law, “a specific defect must
be identified by competent evidence and other possible causes must be ruled
out.”). Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 42 (Tex. 2007) (internal
quotation marks and citation omitted)).         “Texas law does not generally
recognize a product failure or malfunction, standing alone, as sufficient proof
of a product defect.” Id. at 42. Rather, “the deviation from design that caused
the injury must be identified. Otherwise, the jury is invited to find liability
based on speculation as to the cause of the incident in issue.” Id. Casey does
not present any evidence of the cause or nature of the defect beyond the fact
that the airbag did not remain inflated during the rollover. Casey presents
evidence that the side airbag is intended to remain inflated for approximately
six seconds; that the airbag tore during the rollover; and that the airbag only
remained inflated for approximately two seconds or less. Casey’s evidence may
support a finding of product failure, but it is not sufficient evidence of a defect
in the manufacturing process. More is required.
      First, Casey has failed to specifically identify a product defect. In that
regard, this case is similar to Mendez, in which the Texas Supreme Court
rejected a manufacturing defect claim involving a tire manufactured by Cooper
Tire that lost its tread. 204 S.W.3d at 799. The car rolled several times and
four passengers died at the scene. Id. After excluding expert testimony on the
manufacturing defect issue, the Court held that “the mere fact that the tire
failed in these circumstances is insufficient to establish a manufacturing defect
of some sort” because this fact “would amount to evidence of a manufacturing
defect so slight as to make any inference a guess [and] is in legal effect no
evidence.” Id. at 807 (alteration in original) (internal quotation marks and
                                        5
    Case: 13-11119    Document: 00512808055      Page: 6   Date Filed: 10/20/2014



                                 No. 13-11119
citation omitted). Here too, the mere fact that the side air bag failed to remain
inflated for six seconds is insufficient evidence of a manufacturing defect.
Casey presented no evidence as to the reason why the air bag did not remain
inflated and it is not appropriate for the jury to speculate as to the cause. As
the Texas Supreme Court held in Ford Motor Co. v. Ridgway, upholding
summary judgment for the manufacturer on a manufacturing defect claim:
      The Ridgways produced no direct evidence of the fire’s cause, and
      their circumstantial evidence that a manufacturing defect existed
      in the Ford F-150 when it left the manufacturer does not exceed a
      scintilla. Ridgway’s affidavit establishes only that a fire occurred,
      and Greenlees could say no more than that he “suspects” the
      electrical system caused the fire.

135 S.W.3d at 601. Here, Casey similarly established only that the air bag did
not remain inflated for six seconds. In contrast to Ridgway, he does not even
speculate as to the cause. The jury may not permissibly speculate that a defect
existed on the basis of product failure alone.
      Conceding that he presented no direct evidence of a deviation in
construction or quality of the airbag, Casey next entreats us to find that the
failure of the airbag to meet Toyota’s performance standards is akin to a failure
to meet specifications. We decline to read the law in this manner because it is
inconsistent with the law as the Texas Supreme Court has stated it and as the
Texas Supreme Court and intermediate appellate courts have interpreted it.
Casey provides no support for its reading of the law, which would exempt
plaintiffs from submitting evidence of the nature of the alleged defect and of
the deviation from other products.
      Casey cites two cases as support for his argument that Texas courts and
this court have both accepted and required analysis of performance standards
to establish a manufacturing defect. Neither case supports such a reading of

                                       6
       Case: 13-11119    Document: 00512808055       Page: 7   Date Filed: 10/20/2014



                                      No. 13-11119
Texas law. First, iLight Technologies, Inc. v. Clutch City Sports &
Entertainment, L.P. makes no mention that, in Texas, deviation from
performance standards is proof of a manufacturing defect: “The Supreme Court
of Texas has made clear that a showing that the product deviated in its
construction or quality from specifications or planned output is essential to
maintaining a strict liability manufacturing defect claim.” 414 S.W.3d 842,
847 (Tex. Ct. App. 2013) (emphasis added). Far from providing support for
Casey’s interpretation, iLight distinguishes Texas from other jurisdictions that
may consider performance standards. Id. at 847 n.2. And in Leverette v.
Louisville Ladder Co., this court interpreted the test for products liability
under Mississippi law and found that the district court did not abuse its
discretion by excluding expert testimony for failing to address whether the
allegedly defective product met performance and dimensional requirements.
183 F.3d 339, 341 (5th Cir. 1999).             Besides the fact that it interpreted
Mississippi, not Texas law, Leverette did not hold that evidence of failure to
meet performance standards was proof of a manufacturing defect.
        Our decision not to interpret Texas’s law on manufacturing defects to
include violations of performance standards, without more, is bolstered by a
comparison of the text of manufacturing defect statutes or rules in other states.
Unlike Texas’s rule, as stated, for example, in Mendez, 204 S.W.3d at 800, the
text    of   other   jurisdictions’   relevant   statutes   explicitly   contemplates
consideration of deviation from performance standards. See, e.g., La. Rev. Stat.
Ann. § 9:2800.55 (“A product is unreasonably dangerous in construction or
composition if . . . the product deviated in a material way from the
manufacturer’s specifications or performance standards for the product or from
otherwise identical products manufactured by the same manufacturer.”
(emphasis added)); Ohio Rev. Code Ann. § 2307.74 (“A product is defective in
                                           7
     Case: 13-11119       Document: 00512808055         Page: 8     Date Filed: 10/20/2014



                                       No. 13-11119
manufacture or construction if, when it left the control of its manufacturer, it
deviated in a material way from the design specifications, formula, or
performance standards of the manufacturer, or from otherwise identical units
manufactured to the same design specifications, formula, or performance
standards.” (emphasis added)).
       As discussed, Texas does not permit proof of a manufacturing defect by
showing a deviation from performance standards alone.                    See Mendez, 204
S.W.3d at 800. Since Casey’s evidence goes to performance standards and not
specifications, it fails as evidence of a manufacturing defect. 6 Each piece of
evidence submitted by Casey on this point is result-oriented, not
manufacturing-oriented, and provides no detail on how the airbag is
constructed. Casey presented the deposition testimony of Motoki Shibata,
Toyota’s 30(b)(6) witness, in which he stated that “[t]he curtain shield air bag
equipped with rollover sensors are designed to maintain the bag pressure for
approximately 6 seconds.”          Casey also introduced Plaintiffs’ Exhibit 2179,
which describes a “Toyota Engineering Standard,” requiring that the
“[o]ccupant’s head shall not be thrown out the vehicle.” (emphasis added).
These standards describe the intended result of the air bag but nothing about




       6 Renfroe testified that Toyota’s objective that the air bag remain inflated for six
seconds is a “design specification.” Similarly, Toyota expert Karen Balavich testified that
the six-second standard was a “design specification.” But just calling a performance standard
a “specification” does not make it so. Specifications for the purposes of a manufacturing
defect contain design details and are not simply statements about the result or expected
performance. See BIC Pen Corp. v. Carter, 346 S.W.3d 569, 579 (Tex. Ct. App. 2008)
(analyzing, for manufacturing defect purposes, evidence “detailing the precise specifications”
for the product, including “a list of measurements representing the forces that must be
exerted upon the [product] in order to activate it”), rev’d on other grounds, 346 S.W.3d 533
(Tex. 2011); Ledesma, 242 S.W.3d at 38 (analyzing specifications that detailed the torque and
heights of u-bolts).
                                              8
     Case: 13-11119        Document: 00512808055           Page: 9     Date Filed: 10/20/2014



                                        No. 13-11119
its technical specifications or design. Thus, they are not specifications for the
purposes of showing a manufacturing defect.
       Casey’s manufacturing defect claim also fails because he has not
demonstrated that the airbag in this case performed differently from other
airbags in the same product line. Because of this weakness, Casey’s evidence
is better suited to a design defect claim. Texas law recognizes two distinct
theories of recovery in products liability cases.
       Manufacturing defect cases involve products which are flawed, i.e.,
       which do not conform to the manufacturer's own specifications,
       and are not identical to their mass-produced siblings. The flaw
       theory is based upon a fundamental consumer expectancy: that a
       mass-produced product will not differ from its siblings in a manner
       that makes it more dangerous than the others. Defective design
       cases, however, are not based on consumer expectancy, but on the
       manufacturer’s design of a product which makes it unreasonably
       dangerous, even though not flawed in its manufacture.
Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 268 (5th Cir. 2001) (quoting
Ford Motor Co. v. Pool, 688 S.W.2d 879, 881 (Tex. Ct. App. 1985), aff’d in part
and rev’d in part on other grounds, 715 S.W.2d 629 (Tex. 1986)). 7




       7 See also William C. Powers, Jr., The Persistence of Fault in Products Liability, 61
Tex. L. Rev. 777, 782 (1983) (“Defects generally are classified in three categories: flaws or
manufacturing defects, design defects, and warning or informational defects. Manufacturing
defects or flaws are variations that occur when a product deviates from the manufacturer’s
specifications and therefore is unintentionally different from other products in the line. A
design defect is a feature that conforms to the specifications of a product (and therefore is
similar to other products in its line) but imposes an inappropriate risk of injury.” (footnotes
omitted)); Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 346 n.1 (5th Cir. 1983) (“‘Defective’
is a term of art that encompasses several actionable defects. A product can be defective
because it is flawed. Flawed products are not in their intended condition because of an error
in the manufacturing process. Although the condition of a product complies with the
manufacturer’s intention, it can still be ‘defective’ if the design is not sufficiently safe or if
the product does not have adequate instructions or warnings.”).

                                                9
    Case: 13-11119       Document: 00512808055          Page: 10     Date Filed: 10/20/2014



                                       No. 13-11119
       Unlike a design defect claim, a touchstone of a manufacturing defect
claim is proof that the allegedly defective product differs from other products
in the same product line. See id. Thus, in order to prove a manufacturing
defect in this case, Casey must show that the airbag in this case differs from
the airbags that Toyota produced in the same time period and installed in other
Highlander vehicles.         Casey, however, provides no evidence that other
Highlander airbags would have remained inflated for six seconds under similar
accident conditions. See Ledesma, 242 S.W.3d at 41-42 (requiring that the
product deviate from specifications or planned output). He has thus not shown
that a reasonable jury could find a manufacturing defect. 8
       Finally, Casey suggests that the agreed-upon jury instructions in this
case 9 permit deviation from Texas’s definition of manufacturing defect by
allowing Casey to show a manufacturing defect without proving the specific
nature of the defect. To begin, the jury instruction is unclear and we are not


       8 Casey also misses the mark when he argues that a single manufacturing defect could
well impact hundreds or thousands of airbags, or even an entire line. While we agree that
Casey need not prove that the airbag at issue differed from every other airbag that Toyota
produced, he is still required to identify the specific defect that caused the airbag (or a
number of airbags) to differ from its mass-produced siblings. See Mitchell v. Lone Star
Ammunition, Inc., 913 F.2d 242, 247 n.10 (5th Cir. 1990) (hypothesizing that a defect that
occurs throughout an entire line of products can be a manufacturing defect). Casey presents
no such proof but asks the court to “assume” there might be such a defect. Casey also says
that Toyota sought to bar him from introducing evidence of similar incidents, which Casey
asserts was a tacit admission of the unique nature of the problems with the Casey vehicle,
and thus evidence of a manufacturing defect. Even assuming that Casey’s accident was the
only one in which the side airbag failed, Casey is still required to identify the defect in the
manufacture of the airbag at issue. He has not identified a defect or shown that other airbags
produced in the same line would not have performed similarly.
       9 The jury instructions read, in relevant part: “A manufacturing defect with respect to

the product means that the failure of one or more of the components of the product or the
product itself to comply with the manufacturer’s specifications or an act or omission in the
process of manufacturing, fabricating or assembling the components on the product itself
which renders the product unreasonably dangerous to an extent beyond which would be
contemplated by the ordinary user of the product, with the ordinary knowledge common to
the community as to the product’s characteristics.”
                                             10
    Case: 13-11119     Document: 00512808055       Page: 11   Date Filed: 10/20/2014



                                   No. 13-11119
convinced that the jury instruction actually instructs the jury that Casey need
not prove the nature of the defect. But even if Casey’s interpretation of the
instruction is correct, it is legally erroneous. A jury instruction must track the
law. See Ledesma, 242 S.W.3d at 41. Casey must prove what the Texas
Supreme Court requires for a manufacturing defect: that the product deviated,
in its construction or quality, from its specifications or planned output. See
Mendez, 204 S.W.3d at 800. Moreover, Casey’s suggestion at oral argument
that Texas law differs in a material way from the rule found in the
Restatement is not borne out by the cases. The general rule, as found in the
Restatement is that “a manufacturing defect is a departure from a product
unit’s design specifications.” Restatement (Third) of Torts: Products Liability
§ 2(a), comment c (1998). In fact, the Texas Supreme Court has expressly
incorporated the Restatement’s rule on manufacturing defects. See Ledesma,
242 S.W.3d at 42-43 (finding reversible error in a jury instruction that was
inconsistent with the Restatement definition that requires that the “product
departs from its intended design”) (quoting Restatement (Third) of Torts:
Products Liability § 2(a) (1998)); cf Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 426 (Tex. 1997) (“In Texas, section 402A of the Restatement (Second) of
Torts governs claims for strict liability in tort.”).
             b. Unreasonably Dangerous
      In sum, because we find that Casey failed to submit evidence of the
airbag’s deviation from Toyota’s specifications or planned output, his
manufacturing defect claim fails and we need not reach the question of
whether the inclusion of the airbag rendered the vehicle unreasonably
dangerous.




                                         11
    Case: 13-11119    Document: 00512808055      Page: 12    Date Filed: 10/20/2014



                                  No. 13-11119
      II.   Design Defect
      To prevail on his design defect claim, Casey must prove that “(1) the
product was defectively designed so as to render it unreasonably dangerous;
(2) a safer alternative design existed; and (3) the defect was a producing cause
of the injury for which the plaintiff seeks recovery.” Goodner v. Hyundai Motor
Co., 650 F.3d 1034, 1040 (5th Cir. 2011); see also Tex. Civ. Prac. & Rem. Code
Ann. § 82.005(a). Here, Casey’s design defect claim fails because he failed to
present evidence from which a jury could find that a safer alternative design
existed. Hernandez v. Tokai Corp., 2 S.W.3d 251, 258 (Tex. 1999) (holding that
a safer alternative design is a necessary, but not sufficient, element of liability
under both Texas law and the common law). A “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 Ann. § 82.005(b).          “A design is not a safer
alternative if, under other circumstances, [it would] impose an equal or greater
risk of harm than the design at issue.” Hodges v. Mack Trucks, Inc., 474 F.3d
188, 196 (5th Cir. 2006) (internal quotation marks and citation omitted).
“Similarly, the plaintiff must show the safety benefits from [the] proposed
design are foreseeably greater than the resulting costs, including any
diminished usefulness or diminished safety.”         Id. (alteration in original)
(internal quotation marks and citation omitted).


                                        12
    Case: 13-11119       Document: 00512808055         Page: 13     Date Filed: 10/20/2014



                                      No. 13-11119
       As evidence of a safer alternative design, Casey introduced a patent
application, titled “Abrasion and/or Puncture Resistant Fabrics, Airbag
Cushions, and Methods,” which was described at trial by Renfroe. 10 The patent
application proposed using a different material for side curtain airbags
(elastomer), instead of the material used in the airbag here (nylon). Renfroe
relied on this patent application as support for his testimony that a safer
alternative design existed. A single patent or patent application may form the
basis of an expert’s conclusion that there exists a safer alternative design, but
only if the patent or patent application, together with the expert’s analysis of
it, proves all of the elements of a safer alternative design. See Hodges, 474
F.3d at 196-97. We thus inquire whether the patent application and Renfroe’s
testimony together constitute evidence from which a reasonable jury could
conclude that the elements of safer alternative design were met.
               a. Prevent or Reduce the Risk of Injury
       It is Casey’s burden to demonstrate that the alternative design “would
have prevented or significantly reduced the risk of the claimant’s personal
injury, property damage, or death.”               Tex. Civ. Prac. & Rem. Code Ann.
§ 82.005(b)(1). Renfroe testified that, had Toyota used the alternative airbag
described in PX 1198, Mrs. Casey “would have been . . . retained within the
vehicle.” 11   This statement, however, is not sufficient evidence that the


       10  Casey also relies on three other patents and patent applications. Because Renfroe
testified that Plaintiffs’ Exhibit 1198 would assist most in discussing feasible alternate
materials, and was the only patent application discussed by Renfroe, we limit our analysis to
that exhibit.
        11 We note that Renfroe never testified that, with the alternatively-designed airbag,

Mrs. Casey would have survived the accident, just that she would have been “retained within
the vehicle.” If coupled with evidence that the alternative design would have restrained Mrs.
Casey within the vehicle, this opinion testimony combined with testimony from the medical
examiner, Dr. William Rohr, that Mrs. Casey’s fatal injuries were sustained when she was
partially ejected from the vehicle, would together be sufficient to show that the alternative
                                             13
    Case: 13-11119       Document: 00512808055          Page: 14     Date Filed: 10/20/2014



                                       No. 13-11119
alternative design would have prevented or reduced the risk of injury because
Renfroe did no testing to suggest that the presence of the alternative airbag
would have changed the result in this case. Additionally, the testing described
in the patent application was too far afield to constitute evidence that the
alternative design would have reduced the risk of injury in this particular
accident.
       Texas law expects that an alternative design be tested before a jury can
reasonably conclude that the alternative would prevent or reduce the risk of
injury.     In Hodges, for example, an expert examined how the proposed
alternative compared to the product used in the accident. 474 F.3d at 196-97.
The expert examined how possible alternative designs performed compared to
the latch at issue and reasoned that “the Eberhard latch is 25% thicker at the
stress point and provides 12,000 pounds of additional holding strength
compared to the Mack latch, all factors that, in his opinion, would have
prevented it from breaking in the accident.”               Id; see also Damian v. Bell
Helicopter Textron, Inc., 352 S.W.3d 124, 151-52 (Tex. Ct. App. 2011) (finding
that expert testimony was “no evidence of a safer alternative design” when the
design “could have been tested but was not”); Gen. Motors Corp. v. Harper, 61
S.W.3d 118, 126 (Tex. Ct. App. 2001) (finding that patents “constituted no
evidence of . . . a safer alternative design” because, among other things,
“nothing in the patents compared the safety of the patented inventions with
the restraint system used in Harper’s pickup”).




design “would have prevented or significantly reduced the risk of the claimant’s personal
injury, property damage, or death.” See Tex. Civ. Prac. & Rem. Code Ann. § 82.005(b)(1). To
provide evidence of this element, Renfroe need not testify directly that the alternative design
would have caused Mrs. Casey to survive the accident.

                                              14
   Case: 13-11119     Document: 00512808055     Page: 15   Date Filed: 10/20/2014



                                 No. 13-11119
      Here, by contrast, Renfroe did not compare the Highlander airbag’s
abrasion resistance to that of the proposed alternative airbag.       Moreover,
Renfroe admittedly did no testing to support his conclusion that the alternative
design would have changed the outcome for Mrs. Casey in this accident.
Renfroe does not explain why he believed that an airbag equipped with the
stronger fabric would have withstood the forces in Mrs. Casey’s accident
beyond simply asserting “that the air bag would have stayed inflated in this
accident.” Instead, Casey, and Renfroe, rely on the patent application itself to
provide the comparison between the Highlander’s airbag and the proposed
alternative design. To be sure, an expert is not required to duplicate or repeat
a detailed testing procedure described in a patent application that, standing
alone, is evidence that the alternative design would have reduced the risk of
injury in the applicable accident situation. But here, Renfroe’s reliance on the
patent application’s tests was not evidence of the alternative design’s superior
safety because the testing did not involve similar forces and factors as involved
in Mrs. Casey’s rollover accident.
      The patent application describes three tests: two involving sliding or
scrubbing a test bag against a gravel or concrete surface, and one in which a
25-pound weight was dropped on a test bag that lay on a surface covered with
vehicle window glass.     In his testimony, Renfroe referred to the patent
application, specifically the third test, and opined that “[a] 25 pound weight
being dropped from 5 and-a-half feet impacting a bag would be quite similar to
what occurred in this particular case.” But Renfroe provides no support for his
assumption that the testing conditions reflected in the patent application were
equal to the forces at play in this accident. He did not calculate the actual
forces imparted to the airbag in this accident. Crucially, none of the patent
application’s tests involved an airbag installed in any vehicle, a simulated or
                                       15
   Case: 13-11119     Document: 00512808055       Page: 16   Date Filed: 10/20/2014



                                   No. 13-11119
actual rollover, or the forces involved in Mrs. Casey’s accident. In Harper,
plaintiff’s expert relied on a test conducted by others as evidence that a
material described in a patent was a safer alternative design for a seatbelt
webbing that would protect a vehicle’s occupants from neck injuries sustained
from impact with a steering wheel in a frontal crash. 61 S.W.3d at 127.
Because the test did not involve steering wheels or steering columns, the court
held that the testing constituted “no evidence” that the alternative design
would have protected the driver from the risk. Id. Similarly, here, we cannot
credit as evidence of a safer alternative design Renfroe’s reliance on general
tests of the proposed airbag material that were divorced from the conditions of
this accident. See also Ford Motor Co. v. Wiles, 353 S.W.3d 198, 202-03 (Tex.
Ct. App. 2011) (finding that plaintiff presented “no probative evidence to show
there was ‘a safer alternative design’” where no applicable tests involving the
purported safer alternative design were conducted and the expert did not
testify that the forces involved in testing were similar to the forces exerted in
the accident situation). In addition, there is no evidence in the record that the
baseline material to which the patent applicants compared their invention was
the same as the airbag used in the airbag installed in Mrs. Casey’s vehicle.
While both used nylon, there is no evidence that the weave, coating, or other
construction of the Toyota airbag was the same as the baseline used in the
patent’s tests.   In sum, because the patent application did not test the
alternative material under similar accident conditions, Casey has failed to
show that using that material would have prevented or reduced the risk of
injury in Mrs. Casey’s accident.
            b. Risk-Utility
      Even assuming that the proposed alternative would have prevented or
significantly reduced the risk of Mrs. Casey’s death, Renfroe did not conduct a
                                       16
    Case: 13-11119    Document: 00512808055      Page: 17    Date Filed: 10/20/2014



                                  No. 13-11119
risk-utility analysis. To prove safer alternative design, a “plaintiff must show
the safety benefits from [the] proposed design are foreseeably greater than the
resulting costs, including any diminished usefulness or diminished safety.”
Hodges, 474 F.3d at 196 (alteration in original) (internal quotation marks and
citation omitted). In Hodges, this court recognized the necessity of a risk-
utility analysis beyond the mere admission of a patent into evidence:
      Syson also conducted the requisite risk-utility analysis. He
      testified: a driver faces a significant risk if a door opens during an
      accident; engineers do not, and cannot, design for one particular
      accident; and the Eberhard latch would not impair the door’s
      usefulness. In other words, part of a latch’s utility is its ability to
      keep a door shut during a vehicle crash and using the Eberhard
      latch would not diminish the door’s utility. Therefore, there was
      sufficient evidence for a jury to find Syson’s testimony satisfied the
      requisite risk-utility test.

Id. at 197 (first emphasis added).
      Renfroe did not evaluate whether the new airbag would inject any new
risks into the vehicle or diminish its usefulness or safety in any way. In fact,
Renfroe admitted that he had not personally done a risk-utility analysis to
determine whether this airbag would even work or fit in the 2010 Toyota
Highlander. This court has, in similar circumstances, reversed a design defect
verdict when an expert did not conduct a risk-utility analysis of a proposed
alternative design. See Smith v. Louisville Ladder Co., 237 F.3d 515, 519 (5th
Cir. 2001) (reversing a finding of design defect because plaintiff’s expert
“conceded that he made no risk-benefit analysis” and thus did “not establish
that his proposed design would not have substantially impaired the [product’s]
utility”). Renfroe instead relies on the patent itself for a risk-utility analysis.
The patent application contains, and Renfroe cites to, additional benefits
related to storing the airbag and preventing “blocking” of the airbag portions,

                                        17
    Case: 13-11119    Document: 00512808055      Page: 18    Date Filed: 10/20/2014



                                  No. 13-11119
but these benefits are just one side of a risk-utility analysis. The patent
application does not speak to whether the inclusion of the proposed alternative
design in the 2010 Highlander would have diminished usefulness or safety,
and there was no evidence that any risks were outweighed by the utility of the
alternative design. Accordingly, neither Renfroe nor the patent application
conducted a risk-utility analysis.
            c. Technological Feasibility
      Casey also must show that the alternative design was technologically
feasible. Casey need not actually build a prototype, but he must prove that the
alternative design is “capable of being developed.”         Gen. Motors Corp. v.
Sanchez, 997 S.W.2d 584, 592 (Tex. 1999). For this element, Casey relies on
the patent and on Renfroe’s testimony. Use of the design by Toyota or another
manufacturer would be evidence of technological feasibility, but Renfroe
testified that the alternative design had never been tested in a vehicle, and
that he could not tell the jury whether the proposed fabric had ever been
installed in a vehicle. See Goodner, 650 F.3d at 1043 (“Under Texas law, the
use of an alternative design by another manufacturer may establish
technological feasibility.”). Renfroe did testify that, based on the out-of-vehicle
testing described in the patent application, the proposed alternative “would be
an alternative that existed at the time that could have been used in this
Highlander to prevent punctures.” This conclusory statement, however, is not
evidence of technological feasibility.
      Moreover, the patent application does not provide evidence that the
alternative design could have been implemented in the 2010 Toyota
Highlander, has been implemented in any vehicle, or could possibly be
implemented.      The patent application recognizes that “attempts at
constructing side curtain airbags and in particular side curtain airbags with
                                         18
   Case: 13-11119     Document: 00512808055      Page: 19    Date Filed: 10/20/2014



                                 No. 13-11119
rollover protection has [sic] been problematic.”            Although the patent
application purports to provide an airbag that is thinner and easier to pack,
there is no statement in the application demonstrating that this design could
have been implemented in the 2010 Toyota Highlander. Accordingly, Casey’s
evidence on this point is solely Renfroe’s assertion that this airbag could have
been used in this Highlander. When considered along with Renfroe’s testimony
that the design was never tested or installed in a vehicle, and the patent
application’s failure to assert that it could have been used in the 2010 Toyota
Highlander, Renfroe’s unsupported assertion would not be enough for a
reasonable jury to conclude that this alternative design was technologically
feasible. See Merck & Co. v. Garza, 277 S.W.3d 430, 440 (Tex. Ct. App. 2008),
rev’d on other grounds, 347 S.W.3d 256 (Tex. 2011) (holding that, where
plaintiffs’ only proof of technological feasibility is a patent application,
“something else must be found in the record to corroborate” the probability that
the alternative was technologically feasible).
            d. Economic Feasibility
      Finally, Casey also failed to demonstrate that the alternative airbag
would have been economically feasible. “To establish economic feasibility, the
plaintiff must introduce proof of the ‘cost of incorporating this technology.’”
Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 607 (Tex. Ct. App. 2003)
(citation omitted). For this element, Casey again relies on Renfroe’s testimony
and on the patent application. Renfroe’s testimony does not establish the
alternative design’s cost effectiveness. First, Renfroe relied exclusively on the
patent application, testifying that the material described in the patent
application was “[c]ost effective.   That was the objective of their patent,
obviously, is to try and sell this material.” Renfroe’s opinion, however, is not
evidence of economic feasibility because he provides no support for his opinion
                                       19
   Case: 13-11119     Document: 00512808055      Page: 20   Date Filed: 10/20/2014



                                  No. 13-11119
that the new material was cost effective. See Dewayne Rogers Logging, Inc. v.
Propac Indus., Ltd., 299 S.W.3d 374, 384 (Tex. Ct. App. 2009) (finding that an
affidavit stating that a safer alternative design was economically feasible
without “any facts supporting these conclusions” was insufficient evidence of
that element).   While the objective of most patent applicants surely is to
commercialize and profit from their inventions, this objective does not
guarantee success. Next, Renfroe testified that the “air bag material that is
talked about in this patent . . . is commercially available.” But the commercial
availability of a component of the finished product is not, in itself, evidence of
the economic feasibility of the safer alternative design. In Goodner, along with
proof that the new design was installed in some cars, an expert “testified that
alternative designs were economically feasible, which he defined as a cost that
would not render the vehicle so expensive that it’s impractical to purchase it.”
650 F.3d at 1044 (internal quotation marks omitted). Here, by contrast, there
is no testimony or evidence suggesting that a car equipped with the alternative
design could still be sold at a reasonable cost. Renfroe’s statements about cost
effectiveness thus were insufficient because no reasonable juror could find that
the alternative design could be economically feasible without any evidence of
the cost of incorporating this design. See Jaimes v. Fiesta Mart, Inc., 21 S.W.3d
301, 306 (Tex. Ct. App. 1999) (“Fiesta contends that because Jaimes’s expert
did not address the economic feasibility of using another substance or making
the balloons unpalatable, his affidavit was inadequate as summary judgment
evidence. We agree.”).
      Nor does the patent application contain non-hypothetical evidence of the
cost of incorporating the alternative technology. To prove economic feasibility
where the product is not yet in use, courts generally require a party to present
evidence of either an estimate or range of the cost of the alternative design.
                                       20
    Case: 13-11119       Document: 00512808055          Page: 21     Date Filed: 10/20/2014



                                       No. 13-11119
See Brochtrup v. Mercury Marine, 426 F. App’x 335, 339 (5th Cir. 2011)
(concluding that testimony from builder of alternative design that building cost
was $400 was sufficient evidence of economic feasibility to avoid judgment as
a matter of law); A.O. Smith Corp. v. Settlement Inv. Mgmt., No. 2-04-270-CV,
2006 WL 176815, at *3-4 (Tex. Ct. App. Jan. 26, 2006) (concluding that detailed
testimony about how proposed alternative design would add between $5 and
$200 per unit was “some evidence” of economic feasibility).                     The patent
application, however, does not provide any cost-analysis beyond asserting a
goal to make the air bag cheaper. 12 Moreover, Casey submitted no evidence
that the parties making the cost effectiveness statements—here, the patent
applicant and Renfroe—have any experience designing and marketing air
bags. See A.O. Smith Corp, 2006 WL 176815, at *4 (concluding that testimony
of economic feasibility was not mere speculation when cost estimates were
combined with the expert’s “background in designing and marketing” products
in the relevant field). 13 In short, Casey has not provided evidence of economic
feasibility of his proposed safer alternative design.
       Because Casey fails to present evidence from which a reasonable jury
could find that there was a safer alternative design, the district court did not
err in granting judgment as a matter of law as to Casey’s design defect claim.


       12  The patent application contains several statements suggesting that the design will
cost less than existing air bags. See, e.g., PX1198 ¶ 0034 (“Compared to a similar structure
laminated with a layer of heavy fabric, the inventive structure . . . costs less.”); id. ¶ 0089
(“Thus, the inventive fabric permits an improved, cost-effective, method of making a
‘pillowed’ inflatable fabric.”); id. ¶ 0095 (“Furthermore, it goes without saying that the less
film coating composition required, the less expensive the final product.”). But these
statements do not purport to estimate the cost of the design or the “cost of incorporating this
technology” into a Highlander. See Norman, 104 S.W.3d at 607 (citation omitted).
        13 Casey asserts that Renfroe “personally holds the rights to five active patents in

relation to various automotive inventions including steering mechanisms” but does not claim
that Renfroe has any experience that would render him an expert on the cost-effectiveness of
a new airbag design.
                                              21
   Case: 13-11119   Document: 00512808055     Page: 22   Date Filed: 10/20/2014



                               No. 13-11119
We therefore need not determine whether the Highlander’s side curtain airbag
was unreasonably dangerous or whether the airbag was a producing cause of
Mrs. Casey’s injury. See Goodner, 650 F.3d at 1040.
                              CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
judgment as a matter of law to Toyota on Casey’s manufacturing and design
defect claims.




                                    22
