one one one one casey versus toyota and a rollover event ensued during that rollover event the secure restraint activated including her cycling shield airbag the rollover ensued the car rolled multiple times the trial and through pretrial and the court district court issued a rule fifty judgment as a matter of law at the close of plants evidence on certain claims of those issues are presented here for review first because she won the district court should be reversed for its decision that there is legally insufficient evidence to proceed forward on a manufacturing defect and issue to the district court should be reversed for its decision that there was legally insufficient evidence to proceed all inferences are to be rendered in our favor this is it in nova review or the court reviews the whole record i think it's important as we proceed forward to understand that there are two separate sets of rulings by the district court first at the time of the rule fifty motion and the district court made oral rulings as to why it was ruling in the manner that it did then after the parties stipulated to the dismissal so that appeal could be perfected four days later the district court issued a written order outlining wh ruled the way it did in some instances very differently than what it pronounced from the bench so both both of the district court's rulings i think should be discussed here as the court could rule on either basis that the district court ruled versus the manufacturing defect the parties actually all agree on what the law is here and in fact we delivered some bench exhibits to the court behind tab number seven you will see the parties actually agree on what the charge to the jury should be asked in manufacturing defect and what the party said was as to manufacturing the jury should be charged as follows that a manufacturing defect is the failure of one or more of the components of the product or the product itself to number one comply with the manufacture or number two and actor omission in the process of manufacturing fabricating or assembling the components or the product itself such that it renders the product unreasonably dangerous to an extent not contemplated by an ordinary user in it original ruling from the bench the district court ruling was that there was insufficient evidence of a manufacturing defect because toyota and toyota had adhered to the federal federal motor vehicle safety standards that ruling was directly in conflict with the united states supreme court's decision in geier which says that those are minimum standards and they are not conclusive it was a conflict with the supreme court's decision in mercury marine the broke off case in which they said that state common law would govern in the absence of us as of a federal standard the parties do not dispute that there is no federal motor vehicle safety standard on site curtain shield airbags hence state law control the district court also said that this was simply an added extra safety feature which was also contrary to the texas civil practice and remedies code those were the reasons expressed by the district court at the rule fifty motion on the record whatever that is worthy of a manufacturing defect in fact i'm assume we correct your point is that the court was wrong because there was evidence of the main effect correct in fact the district court's order both from the bench and in its oral rulings totally ignored the evidence set forth by the planes made no mention of it and we'll start with own thirty six deposition witness and a non retained expert mister mr i stated not once but twice that the design standard of toyota for the  using as per se evidence of a manufacturing defect that's not a manufacturing defect manufacturing defect as i understand it and requires the plaintiff to put on evidence about how this in this case the airbag is supposed to be manufactured what the what the shop drawings are about how this is supposed to be done and show how this thing was not done that way but as i understand it i mean the argument you're making goes to design defect but it doesn't go to manufacturing defect respectfully judge king i disagree with that if you look at the recharge we were supposed to in the required show under texas law only that the product failed to adhere to the specifications and mr stated what the specification was toyota made the decision that that specification should be a performance ok political question another how was this what's your theory as to how this airbag was different than any other airbag what was your theory the theory is that it didn't perform as it was so what what's the theory of what made it what aspect of the manufacturing defect existed to make this one different than other one daughter it could have been materials it could have been process we're not required under texas law to prove that with any level is that specificity we're not required to there's no texas case that requires that there's not one single texas case that says you have to show the specific method and manner in which it failed to comply all i'm asking you what's your theory as to how it differed as a result of the manufacturing from any other or that the standard says what it's supposed to do the standard says that it's supposed to stay inflated in an automobile accident for six seconds and it did not do so no matter what happens during the x in the best evidence of that just a concern is when asked mr was asked what's the standard for deflation ok so you've told us it has to stay inflated for six seconds what's the standard for what happens after six seconds how does it come to be plated and he specifically said just a second we don't have a standard for that it's too dynamic can tell you the forces are different he made a qualification at deflation he made no such qualification as to design specification and he had the opportunity to do so not once but twice their retained expert from exponent specifically stated quote the design specification requires inflation for a minimum of six seconds who are you switching to the design no this is again more evidence as the manufacturing she specifically stated that the standard the design specification requires inflation for six seconds she also stated that there is no dispute that it probably stayed inflated for approximately two seconds less than two seconds the same  acknowledge you're telling us that the texas law and i'm not i should be but i'm not an expert in texas law varies then from the restatement restatement  does not provide the way you're describing so you're saying the texas law and manufacturing defect is different from the restatement correct grinnell law does not ridgeway all of these cases set forth the exact instruction that we set forth behind tab seven at the record fifteen forty nine failure of a specification or an actor omission in the process of manufacturing fabricating or assembling one or the other either way and we clearly required that an occupant head shall not go outside of the vehicle in its design specifications that the site for and shown airbag should remain inflated and that the head shall not go outside of the vehicle it is under spewed in this case that it did so i just want to be clear because my question was about what evidence was there of manufacturing defect and so are you saying that the sole piece of evidence in connection with your contention that it was a manufacturing defect that switching to the design defect claim your honor originally as the court reviewed this you could see there were lots of it was a very difficult pretrial originally we were not going to be able to go forward with the design defect claim as a side curtain childer vaga then in my judgment the court made the right ruling and said we're going to let the jury decide this and then the court going to rule fifty motion the evidence that we brought forward on the design defect claim would be in two parts the first part would be the testimony of david renfro david renfro is a qualified crashworthiness expert there's no issue with that here  trial testimony this was a time trial you can read from the record dr renfroe was asked if he had reviewed multiple patents and he said he did record thirty eight forty nine we've been approached him and asked him which of the four patents that we have put into the pro proposed exhibits he said would be the best evidence for a jury to look at alternative materials he looked at those and selected eleven ninety eight in his testimony followed by the way plaintiff's exhibit eleven ninety eight was offered into evidence and there was one limited relevance objection that it was not relevant to the opinions that dr renfroe was going to offer that was overruled plaintiff's exhibit eleven ninety eight and all that it stands for goes into evidence in full there is no motion to strike it there's no additional objections urged it's in for all purposes and when you look at it and when you look at what it says it shows a proposed alternative design that was tested that was analyzed that was technologically feasible and it was cost effective they did renfrew compere the proposed design to two areas does a doctor renfro compared it his testimony is compared it to the existing safety system that he knew was in the vehicle and analyzed it this is not a situation where this is anything more than a change your answer is yes he can right here the proposed design to the toy design wrecked his testimony when when you when you look at the totality of all the work that he did he undertook a variety of things he looked at the safety system he infected the vehicle specifically he went through and analyze and he put it is says the forces that were involved in this accident as against the proposed design what he specifically said as to as to that issue was that this that this material that would be utilized would be six times stronger you know what did he apply the forces involved in this accident to the proposed design this testimony was unequivocally on the record if this design had been put into the vehicle it was his opinion to regional degree probability she would have remained inside of the vehicle her head would not have gone underneath and it would not have  testimony that she would have survived this accident if this design have been implemented ok so your answer is yes he considered the forces at play in this accident come to that conclusion i'm concerned being fair you just seconds and he didn't use those exact words ok that's why that's when you're trying to explain it i think it was it was stated by him in a different it was stated by him in a different way other than that specifically but yes he analyzed his testimony was he had analyzed those things and as applied to this vehicle if she had been in there she would have survived and the size for example normally it blocks it twenty four millimeters versus twenty five that's in the patent itself which is substantive evidence let's not forget it's not just what dr renfroe says when that exhibit goes to the jury they can rely on all aspects of no problems with its implementation and that's the question that you have to look at when you examine eleven ninety eight which is is it capable of being implemented that's the standard the standard isn't did he take it in go put it into a vehicle that is not required under texas law and the circuits law the question is was it subject to implementation and when you read the patent you see that they analyzed all of those issues and determined yes this is a perfectly capable cost effective technologically feasible design that could be put into ok place in court i'm scott stahl i'm representing the toyota defendants i want to focus on the two fastest and easiest ways for this court to a farm first on the manufacturing claim because there's no evidence that a manufacturing defect existed there is no evidence of this vehicle physically deviated from how it was intended and supposed to be built secondly on the design claim there is no evidence that a safer alternative design exists eleven ninety eight is not a design for an airbag it's for a fabric to incorporate into an airbag possibly it's a concept there is no comparison to show that that fabric is different from or safer than the toyota fabric in fact renfro admitted he did no analysis of the risk utility balancing what theory you have borne it just said the opposite so what's the best records i don't that  compare the proposed design to toyota's design that didn't happen eleven ninety eight describes the baseline material that they tested and the proposed material they tested the baseline material is described as some type of not a lot but there is no evidence in the record as to how that baseline material compared to toyota's material the only evidence is toyota used nylon sixty six but there's no evidence of the weave was what the weight of the fabric was how many layers they used what kind of coatings they're used what kind of laminate they used none of that is in the record about the toyota fabric so the test th performed in eleven ninety eight is completely irrelevant because it doesn't show how the toyota fabric compares to the proposed on your first question your honor he said at four thousand one that he never tested the fabric that he never put it in a vehicle and did his own analysis he repeated it to four thousand one to two that he didn't know testing at four thousand and two he said he didn't calculate the forces that were imposed on the airbag in the in the accident he repeated that at four thousand two to zero three and at four thousand four  he said no he had not done a risk utility analysis and that he had not done an independent analysis of the application so as to the manufacturing defect claim product liability law texas recognizes an important distinction between a design claim a faction is on a design claim is about the choices made in the design process it's a complaint that you should have done something different in your choices a manufacturing claim is a claim that the design is safe but something went awry during the things ical assembly of the product so it's all about something to physically went wrong you have to show a physical deviation from the plans in this best way i sees how he's arguing the case apparently i asked the question because under the under the restatement the restatement is what you've just said and i said well that is the texas law different because he's talking about there is some kind of a specifications variance that this didn't comply with the specifications and i i don't understand under texas law is there a permissible manufacturing defect case though it is not your honor i don't believe texas law differs from the restatement and you can look at some of the cases we cited in the brief the pen case from the supreme court ferguson which is from this court where the court said a manufacturing defect is when the product is not in the intended condition because of an error in the manufacturing process that's what this court said same thing in green versus r j reynolds this court said mean manufacturing cases the product does not conform to the manufacturer's best let him see what he apparently is saying and he can correct me on rebuttal if i am wrong what he's saying is well this thing didn't didn't come out so to speak of the manufacturing process complying with the design specs so there must have been a problem in the manufacturing process but he seems to say just the fact that it didn't comply with the manufacturing with the specs that toyota hand for its widget here means that it there must have been a manufacturing defect but he seems to say just the fact that it didn't comply with its own specs equals manufacturing defect and what they're relying is on is what they allege is a performance standard there is no texas law that says you can use a and designed the true import of what they're claiming here is that toyota didn't make the right choices in the design in order to create a bag that would stay inflated for six seconds earlier all conditions under any possible accident that could ever occur that's a design  im so they offered no evidence that there's a physical deviation from how the product was supposed to be built from the manufacturer's plans and specifications for example they don't argue that there is a imp a flawed seam in the airbag wasn't done properly or it wasn't sealed properly and that allowed air to escape too soon so the state of the record is the airbag was built exactly how toyota intended it and as a result they do not have a manufacturing claim now the natural consequence of that is they are left soley with a design claim which is really the truth import of their cl and because they're so left with the design claim that claim has to be tested against the elements of the design klein not against the elements of the manufacturing claim one final point on manufacturing defect that touches on a question from judge king is essentially what the plaintiffs are saying here is there must be a manufacturing defect in there somewhere since the airbag a bright  says you have to identify the defect you cannot just throw out there some undifferentiated quote condition that you say made the product on reasonably dangerous so  you cannot draw the inference of an accident merely from the fact that and i'm sorry of a product defect merely from the fact that an accident occurred you have to have more than an accident and an injury in order to establish a defect and that's essentially what they're arguing here is just because the airbag a bright id that must mean there is something wrong in there we can't tell you what it is but it's something wrong and as a result we can imply a defect from that and texas law does not allow that implication so again that just leaves us with the design claim the plaintiffs say that eleven ninety eight p x eleven ninety eight shows the safer alternative that is a patent application in which the authors hypothesized that they have somehow invented a fabric that is more abrasion resistant than the baseline fabric they tested what they didn't do is they didn't test the toyota airbag material because there's nothing to demonstrate in the record what the toyota airbag material is in total and so eleven ninety eight is not a differences from quote standard whatever that is occurred in that six year interval so we have no basis in the record to say that toyota airbag is the same as the baseline that they tested in eleven ninety eight is better worse or the same as toyota with respect to abrasion resistance as a result there's no evidence a safer alternative even exists now a related point confirms this renfro admitted he did calculation of how much force was imposed on the airbag in the accident he said he had no quarrel with other experts who said the force was twenty two times the force of the drop test that was conducted by the authors of love in ninety eight so as a result of him having no testing he's got no way to say that an airbag using the fabric and eleven ninety eight would have performed better than the toyota fabric there's no way even if you could even if you could incorporate that fabric into a workable airbag there's no evidence it would have performed better renfro had no way to know that because he did no testing he did no calculations the record is inconclusive this to what the speed of the vehicle was at the time of the exit or is it right now when  hit that culvert and launched it was at approximately sixty two miles an hour ok so that is the word yes you had a separate argument on the design defect relating to if it's an extra safety measure yes are you pursuing that argument and if so what's your best authority that you could never have something and recently dangerous if it were an extreme measure well i think i think the i can't point you to a case when you ask for authority but i think i can explain that argument in three easy steps roger the first step is that the object of products liability law is to impose liability when a product is on reasonably dangerous to do that you have to determine what is the risk at issue in the case in this case it's the risk of a driver being ejected through the the side window so you have to focus on is that risk on recently dangerous that's step one step two what is the baseline level of that risk is it an unreasonably dangerous risk and to do that you have to look at the level of the risk and you have to look at a comparison to against the gravity and this is the verity of the potential injury and there is no evidence in this record to demonstrate that that baseline risk which is there it's inherent in a vehicle but there's no evidence that baseline risk exceeds the threshold to make it an reasonable when you compare to make one reasonable to make the product on reasonable the vehicle yet what you're talking about the vehicle under recently dangerous because the gravity and potential likelihood of injury exceeds the utility of the product and so if i understood to take this as a question that i may not have but i thought he asked about your contention that it may not be your contentions but you could never render a product on reasonably dangerous by adding a feature that's not some kind of required feature on the vehicle and otherwise you can't take a shield airbag it does not increase that baseline risk because that airbag is designed to reduce that risk it could never increase that risk and as a result the airbag without aside the vehicle without that airbag is not on recently dangerous it can't be unreasonable dangerous with the air now it would be das regards the risk of being ejected exactly it would be different if it was a different kind of risk if it was something for example that they could have a feature for environmental reasons that allowed that the car the engine stops running of the vehicle list it is it mobile for a few seconds you would read letters of that and then the engine starts up again when you touch the accelerator but then you're on the freeway and this feature that kills the engine kills it in the middle of seventy miles an hour on the freeway and so it's a feature that's airbag if it was an inflation induced injury the introduction of an airbag into the vehicle creates that risk it could be common reason in danger but we don't need to go this direction and there isn't authority it's an interesting argument it would resolve this case but you know you aren't saying that we need to reach it that's correct that's correct you can reach rick you can reach the affirm and it's a manufacturing defect because there's no evidence that defect existed and on design defect because there is no evidence of a safer alternative that's correct and you would not have to reach this argument about on reasonable danger so on with the safer alternative i think i was at the point of mentioning that renfro had no way to know that these forces that were imposed in this accident he didn't calculate to me to determine that he had no way to say that the proposed air bag and eliminate would have withstood those forces basically you know you have to under texas law do it risk utility analysis with the product have prevented or substantially reduce the risk of injury without substantially impairing the product utility and renfro didn't go through that analysis and neither did the authors of the eleven ninety eight the authors of eleven ninety eight simply created a preliminary concept which this court has recognized in multiple cases i think smith vs louisville latter is one of them the guy case the watkins case that a preliminary concept is not a safer alternative that doesn't rise to the level  there was no testing calculations or independent evaluation of any kind to show that this would have been a safer alternative and they never showed that even this alternative could actually engineer it into a nearby i test they didn't do the analysis to determine could it actually work when made full size and put into an air bag will it inflate properly at the right time in the right sequence with the minutes i want to mention what i think are the four most important takeaways one is there is no evidence of a physical deviation from how the product was supposed to be built compared to the plans and specifications this is required by texas law to prove a manufacturing klein performance standard cannot establish that that's number one number two there is no comparison to show that the proposed fabric in eleven ninety eight is safer than the toyota airbag fabric the test in eleven ninety eight was against some standard that has not been shown to be the same as the toyota fabric number three there is no analysis of the forces in this accident to show that the proposed fabric would have made a difference that it would have somehow performed better and not been overwhelmed by the tremendous force of this two and three quarter rollover  unfortunately eleven ninety eight is not a design for an airbag there is no showing that that fabric to actually be engineered into a workable airbag they said they did things such as consider how it would be packed and blocking blocking is will it stick together or is it get some more questions you asked was whether or not dr renfroe had compared and you one of the best records site about if you compared what's in the vehicle versus what's proposed record thirty  believe it's thirty if you want to have the reporters record here i believe it's thirty eight fifty one to thirty eight fifty two talking about the patent question ok and we know that there is material called an i want sixty six in this car this is different type of material is that fair that's correct he specifically said no i want sixty six is in the highly under and the patent is it is introducing different new material and then he goes on to discuss it on the manufacturing defect claim the contentions been made over and over but again by twitter that we have not shown any physical deviation although if you read the brief there's of course no case cite to that requirement because it doesn't exist but if it did under texas law and there's no cases requiring that we've done it anyway the court should also be mindful this issue about will you have to show that it's a one off deviation what you're saying basically is so the product failed under the circumstances here so there must have been a manufacturing defect this is not i am not taking the position we are not that this is luck desmond ridgway are the cases it's a bad result alone will not suffice that's the texas gloss that's the case law to your point judge king this is not bad result alone this is taking the undisputed design specification outlined by toyota thirty six step deponent and its experts coupling it with the physical evidence you're saying of i understand it the bank is supposed to stay inflated for six seconds correct it didn't just me therefore there was a manufacturing defect corrected it failed it here that's but i don't think you can show a manufacturing defect in that fashion i think you have to show something about the process by which the thing was manufactured and something went wrong i mean what's your best texas case for saying the product failed to two would you  say be consistent with what it was supposed to do therefore there was a manufacturing defect all of the cases outlined the law that we put forward in the churchyard from grinnell all the way through the desmond ridgeway that you have two ways to prove it showing the failure  specification or showing that there was a a an error or omission during manufacturing fabricating or simply either one will suffice that's how the jury was struck that was to be charged that's what the parties agreed to try the lawsuit on that basis if you look at the jury charge we do differ from the restatement by the way the jury charge was there a pretrial conference where everyone agreed as to the jury charge or was that it's his fix all of the required charge which has been agreed to by both parties will will show that this is a viable theory of your case yes ma'am and in the cases you're citing for that we'll say texas is different than the restatement or is that your inference from that that's that's that's what i believe to be accurate if you look at the desmond if you look at grinnell they said for what the texas standard is in fact if you look at the footnote judge king and judge taken on fifteen forty nine you'll see that we cited to the pattern jury charge angela does not because look does my head come out after the pattern jury charge so we specifically crafted this question that was to go to the jury by agreement in accordance with the most recent texas process so this is the texas pattern jury charge which is wh do you correct along with the law doesn't the case because it it changed it would put someone recently dangerous language into that definition and i guess on the summit as evidence in the record about what happened to the vehicle from the time of purchase to the time of the accident there was no alteration no intervening event that could have affected the way the site airbag function all of that's in the way it could correct that there were very limited miles this thing it only got a matter of months just like i'll concede that it was approximately sixty two miles an hour there was no dispute about alteration of the product or anything like that i'd like to conclude just very briefly if i could what you've heard here today are two very different versions of what the evidence is very different and that's why this court district court had it right which is just like the riley court just like this court has said over and over in two rivers raytheon all of those cases the way to solve this is by vigorous cross examination presenting your version of the case and instructing the jury it's not for judges to weigh the credibility and weight to be given the evidence that is a matter for the trier of fact who was not the district court in this case respectfully he had it right and then he erred by granting judgment as a matter of long we would request the court reverse on both issues thank you very much the court will take this matter under advisement granted a ruling in due course