Opinion issued August 29, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00574-CV

———————————

ILIGHT TECHNOLOGIES, INC., Appellant

V.

CLUTCH CITY SPORTS & ENTERTAINMENT, L.P., Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Case No. 2009-76645

O P I N I ON
2

Clutch City Sports & Entertainment Inc. (“Clutch City”) sued iLight 

Technologies, Inc. (“iLight”) for strict liability manufacturing defect and for 

negligence. A jury found iLight liable under these theories and determined that 

Clutch City had incurred damages in excess of $2.5 million. iLight appeals the 

trial court’s judgment rendered on the jury’s verdict. Raising three issues, iLight 

contends that the evidence is legally insufficient to support the judgment, 

challenging the two liability findings and the damages award.

We reverse and render.

Background Summary

The Toyota Center, a sports and entertainment facility in downtown 

Houston, opened in 2003. It is the home of the Houston Rockets and a venue for 

other sporting and entertainment events. Clutch City operates, maintains, and 

manages the Toyota Center. Clutch City entered into a “naming rights agreement” 

with Gulf States Toyota to have the venue named “Toyota Center.” Toyota agreed 

to pay approximately $5 million a year for the naming rights. As part of that

contract, Clutch City agreed to display a lighted “Toyota” logo on the roof of the 

facility. A sign was installed on the Toyota Center roof, outlining Toyota’s logo. 

The sign was illuminated by red Plexineon light emitting diode (“LED”) strips 

manufactured by iLight. 
3

In February 2007, a fire occurred on the Toyota Center roof involving the 

Plexineon sign. iLight replaced the affected sections of the LED sign without 

charge to Clutch City. The cause of the 2007 fire was not investigated. 

In February 2009, the Plexineon sign caught fire. The fire caused damage to 

the Toyota Center’s roof, which cost $1,217.18 to repair. Clutch City replaced the 

damaged sections of the LED sign with extra parts of the sign that it had in storage. 

Clutch City lit the sign at night for another week after the repair but then noticed 

that other sections of the LED lights appeared melted. For safety reasons, Clutch 

City decided not to illuminate the sign.

Clutch City requested that iLight replace the damaged Plexineon sign at 

iLight’s expense. iLight declined to replace the sign without charge. It asserted 

that Clutch City’s use of a bleach-and-water solution and a high-pressure washer to 

clean the roof had caused the deterioration and corrosion of the lights, which led to 

their failure. iLight offered to replace the damaged portions of the LED sign at a 

reduced cost. Clutch City refused the offer. The parties were unable to reach an 

agreement with regard to replacement of the damaged sign. Clutch City replaced 

the damaged portions of the roof-top sign in August 2011, replacing between 500 

and 800 feet of the sign. The replacement cost was $168,434.61. 

The illuminated roof-top sign is an important part of Toyota’s naming rights 

agreement with Clutch City because it is a high-profile advertising medium. 
4

However, even after the 2009 fire, Toyota continued to pay Clutch City the 

approximate $5 million as required by the naming rights agreement. Clutch City 

negotiated an arms-length agreement with Toyota to offset the loss of advertising 

that resulted from turning off the lights on the sign. Clutch City provided Toyota 

with certain “make goods” in the form of alternate advertising media in the Toyota 

Center. From February 2009 to August 2011, Clutch City claimed that it provided 

alternative advertising to Toyota worth approximately $4.675 million. 

Clutch City filed suit against iLight in November 2009. Over the course of 

the litigation, Clutch City refined its claims against iLight. In its fourth amended 

petition, Clutch City alleged that the fire was caused by an electrical short in the 

LED strip, which had resulted from iLight’s defective manufacturing process. 

Clutch City also alleged that iLight had been aware of defects in the LED lights but 

had failed to warn Clutch City of the defects. Clutch City asserted claims against 

iLight for strict products liability and for negligence. 

As damages, Clutch City requested the cost to repair the Toyota Center’s 

roof and the cost to replace the damaged portion of the sign. In addition, Clutch 

City sought damages for the “loss of use” of the roof and the sign following the 

2009 fire. Clutch City asserted that the loss-of-use damages were measured by the 

value of the “make goods” or alternate advertising provided to Toyota. In other 
5

words, Clutch City asserted that it was entitled to $4.675 million for loss-of-use 

damages. 

Clutch City tried the case to a jury on three theories of liability: strict 

liability manufacturing defect, strict liability marketing defect, and negligence. In 

support of its manufacturing defect claim, Clutch City offered the testimony of two 

experts. The report of one of those experts was also admitted into evidence. In 

addition, Clutch City relied on evidence from a federal lawsuit filed by iLight 

against the manufacturer of the LED light strip contained in iLight’s Plexineon 

light product. 

Of the three liability theories submitted, the jury found iLight liable for strict 

liability manufacturing defect and for negligence, but it did not find iLight liable 

for strict liability marketing defect. The jury awarded the following damages:

(1) $1,217.81 for the cost of repairs to the roof; (2) $168,434.61 for the cost of the 

LED sign replacement; and (3) $2,337,575.00 for loss of use of the roof and LED 

sign. The trial court rendered judgment on the jury’s verdict. 

iLight had objected to the jury charge on the basis that there was legally 

insufficient evidence to submit any of the liability claims to the jury. iLight also 

filed post-judgment motions in which it challenged the legal sufficiency of the 

evidence to support the jury’s liability findings on strict liability manufacturing 
6

defect and negligence. It further challenged the legal sufficiency of the evidence to 

support the loss-of-use damages awarded to Clutch City. This appealed followed. 

Legal Sufficiency

iLight presents three issues on appeal. In its first two issues, it contends that 

the evidence was legally insufficient to support the liability findings. iLight’s third 

issue challenges the sufficiency of the evidence to support the jury’s award of lossof-use damages. 

A. Standard of Review

Because it is attacking the legal sufficiency of the evidence supporting 

adverse findings on issues for which it did not have the burden of proof, iLight 

must show that no evidence supports the jury’s adverse findings. Exxon Corp. v. 

Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011) (citing Croucher 

v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). Evidence is legally sufficient if it 

“would enable reasonable and fair-minded people to reach the verdict under 

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

this determination, we credit favorable evidence if a reasonable fact-finder could 

and disregard contrary evidence unless a reasonable fact-finder could not. Id. So 

long as the evidence falls within the zone of reasonable disagreement, we may not 

substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is 

the sole judge of the credibility of the witnesses and the weight to give their 
7

testimony. Id. at 819. Although we consider the evidence in the light most 

favorable to the challenged findings, indulging every reasonable inference that 

supports them, we may not disregard evidence that allows only one inference. Id.

at 822.

This court may sustain a legal sufficiency (or no evidence) issue only if the 

record reveals one of the following: (1) the complete absence of evidence of a vital 

fact; (2) the court is barred by rules of law or evidence from giving weight to the 

only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital 

fact is no more than a scintilla; or (4) the evidence established conclusively the 

opposite of the vital fact. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. 

& Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (citing Merrell Dow 

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence is no more 

than a scintilla if it is so weak as to do no more than create a mere surmise or 

suspicion that the fact exists. Id. (citing Kroger Tex. Ltd. P’ship v. Suberu, 216 

S.W.3d 788, 793 (Tex. 2006)). 

B. Manufacturing Defect

In its first issue, iLight challenges the legal sufficiency of the evidence to 

support the jury’s affirmative finding to the following question: “Was there a 

manufacturing defect in the Plexineon product at the time it left the possession of 

iLight that was a producing cause of the occurrence in question?” 
8

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. BIC Pen Corp. v. Carter, 346 S.W.3d 533, 540 (Tex. 

2011); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006);

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A plaintiff must 

prove 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. Ridgway, 135 

S.W.3d at 600. 

The jury in this case was properly instructed with the following definition of 

a “manufacturing defect:” 

A “manufacturing defect” means that the product deviated in its 

construction or quality from its specifications or planned output in a 

manner that renders it unreasonably dangerous. An “unreasonably 

dangerous” product is one that is dangerous to an extent beyond that 

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.

iLight contends that Clutch City failed to offer more than a scintilla of 

evidence to show that the Plexineon light product “deviated in its construction or 

quality from its specifications or planned output.” 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. See Ford Motor Co. v. Ledesma, 242 S.W.3d 
9

32, 41 (Tex. 2007); see also Dewayne Rogers Logging, Inc. v. Propac Indus., 299 

S.W.3d 374, 383 (Tex. App—Tyler. 2009, pet. denied) (affirming summary 

judgment when plaintiff offered no evidence showing that machine deviated from 

specifications or planned output when it left manufacturer’s possession).

1 This 

requirement is in addition to showing that the product was defective when it left 

the manufacturer and that the defect was a producing cause of the plaintiff’s 

injuries. See Ledesma, 242 S.W.3d at 42. The supreme court explained that “[t]he 

requirement of a deviation from the manufacturer’s specifications or planned 

 1 Courts in other jurisdictions have held that a plaintiff has failed to show a 

manufacturing defect when no showing is made that the product deviated from the 

manufacturer’s design specifications or its intended performance standards. See, 

e.g., Linden v. CNH America, L.L.C., 673 F.3d 829, 834 (8th Cir. 2012) (affirming 

trial court’s determination that plaintiff had failed to introduce sufficient evidence 

of manufacturing defect and discussing distinction between manufacturing and 

design defects); In re Coordinated Latex Glove Litig., 121 Cal. Rptr.2d 301, 315–

16 (Cal. Ct. App. 2002) (holding no manufacturing defect claim shown when 

plaintiff failed to present evidence latex gloves did not meet design 

specifications); Welch v. Technotrim Inc., 778 So.2d 728, 733 (La. Ct. App. 2001)

(upholding summary judgment because plaintiff could not produce evidence of 

deviation from specifications or performance standards); Leverette v. Louisville 

Ladder Co., 183 F.3d 339, 341 (5th Cir. 1999) (holding expert’s testimony 

alleging defect in ladder was insufficient to prove manufacturing defect under 

Mississippi law because there was no evidence that flaw deviated from 

manufacturer’s design); Atkins v. Gen. Motors Corp., 725 N.E.2d 727, 731 (Ohio 

Ct. App. 1999) (concluding trial court properly granted summary judgment on

manufacturing defect claim because plaintiffs did not show or claim that product 

deviated in any material way from manufacturer’s design specifications, formula, 

or performance standards).
10

output serves the essential purpose of distinguishing a manufacturing defect from a 

design defect.”2

 Id.

At trial, Clutch City’s primary theory of a manufacturing defect was that 

faulty soldering within the LED light strip caused a short circuit that in turn led to 

overheating and the fire. Subsidiary to this theory, Clutch City also presented 

expert testimony that unknown contaminants within the internal portion of the 

LED light strips and corroded components also constituted manufacturing defects, 

which possibly caused the fire. 

To determine what caused the lights to fail, Clutch City sent a section of the 

LED lights that had thermal damage to Insight Analytical Labs (“IAL”) for testing. 

At trial, Gary Shade, who works for IAL, testified by deposition. He stated that he 

analyzed and tested a six-foot long section of the lights, which showed evidence of 

thermal damage. He testified that x-ray imaging of the light section revealed that 

 2 Other jurisdictions and the Restatement of Torts also recognize manufacturing 

defect and design defect as distinct theories of liability. See Linden, 673 F.3d at

834. For example, the Eleventh Circuit Court of Appeals has explained the 

distinction as follows: 

This distinction between “aberrational” defects and defects 

occurring throughout an entire line of products is frequently 

used in tort law to separate defects of manufacture from those 

of design. . . . Stated another way, the distinction is between 

an unintended configuration [a manufacturing defect], and an 

intended configuration that may produce unintended and 

unwanted results [a design defect]. 

Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1317 (11th Cir. 1989).
11

an anomalous “solder bridge” had developed between the “common” or ground 

power strip and the supply power strip, causing a short circuit. 

According to Shade, his investigation revealed that excessive solder was 

used to attach the supply wire to the supply strip. The excess solder had migrated,

acting as a conductor between the supply strip and the ground strip. This created a 

short circuit, allowing an excessive flow of current. This led to overheating in 

close proximity to the plastic on the lights. Shade opined that this caused thermal 

damage to the lights and also led to the fire. 

Shade testified that, although the “excess” solder would have been present at 

the time it left iLight’s possession, the solder bridge connecting the supply and 

ground strips would not have initially been present. He stated that there was likely 

a gap between the solder holding the supply wire in place and the ground strip

when the strip was originally manufactured. Shade explained that, over time, such 

things as temperature changes, humidity, and corrosion likely caused the excess 

solder to make contact with the ground strip, creating a bridge, shorting the two 

strips together. 

Clutch City points to Shade’s testimony as evidence supporting the jury’s 

manufacturing-defect finding. However, it is a matter of logic that to demonstrate

how a product deviated from its specifications or planned output would first 

require a showing of what the manufacturer’s specifications or planned output are 
12

for that product. Shade did not testify regarding what the product specifications 

required, if anything, with respect to the soldering of the supply wire, including the 

amount or positioning of the solder. When asked whether he had reviewed the 

plans or specifications for the Plexineon light product, Shade responded that he did

not have access to them. 

Even presuming that iLight had no express design specifications for the 

soldering, no evidence showed whether the supply wire had been soldered in a 

manner or in a configuration unintended by iLight. Shade gave no testimony 

indicating why he characterized the solder attaching the supply wire as “excess” 

solder. Shade did not explain whether he believed that the product specifications 

called for what he termed “excess” solder or whether the solder used was in excess 

to what iLight had intended or planned when the product was manufactured. 

When asked whether “a mistake was made” when the supply wire was 

soldered, Shade replied, “That would be the conclusion, yes.” However, “[e]xpert

opinions must be supported by facts in evidence, not conjecture.” Marathon Corp. 

v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (citing Burroughs Wellcome Co. v. 

Crye, 907 S.W.2d 497, 499–500 (Tex. 1995)). An expert’s simple ipse dixit is 

insufficient to establish a matter; rather, the expert must explain the basis of his 

statements to link his conclusions to the facts. See City of San Antonio v. Pollock, 

284 S.W.3d 809, 818 (Tex. 2009). “[I]f no basis for the opinion is offered, or the 
13

basis offered provides no support, the opinion is merely a conclusory statement and 

cannot be considered probative evidence.” Id. Here, Shade did not explain the

basis for his conclusion that “a mistake” was made with respect to the soldering. 

To the contrary, if the manner of soldering did not depart from iLight’s intended 

process or configuration, then there was no manufacturing defect. 

In short, iLight’s product specifications or planned output may have 

addressed or taken into consideration the soldering process and quantified the

amount, or indicated the placement, of solder to be used in a solder joint; however, 

no evidence was presented on this point. For this reason, it is possible that iLight 

complied with its own product specifications and planned output with respect to 

the soldering process. In other words, it may be that iLight did exactly what it 

intended to do with respect to manufacturing and soldering the Plexineon product 

but did not solder the supply wire in accordance with industry standards or what 

hindsight has determined to be a faulty design. If so, the faulty soldering may be a 

matter of design defect rather than manufacturing defect. See Cooper Tire & 

Rubber Co., 204 S.W.3d at 808 (noting, in discussion of causation issue, that 

plaintiff’s expert had not eliminated possibility of design defect). In any event,

Shade’s testimony presented no evidence that, when it left iLight’s possession, the 

Plexineon sign deviated in its construction or quality from iLight’s specifications 

or planned output or that the product in any way departed from exactly how iLight 
14

had intended to manufacture it. See Pollock, 284 S.W.3d at 818; see also Coastal 

Transp. Co. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227, 233 (Tex. 2004)

(holding that legal-sufficiency challenge may be made to expert testimony that is 

speculative or conclusory on its face, even in the absence of valid objection to its 

admissibility).

Clutch City also presented the expert testimony of Kurt Humphrey, an 

experienced engineer, to support its manufacturing claim. In addition to his 

testimony at trial, Clutch City introduced Humphrey’s expert report into evidence. 

As had Shade, Humphrey also examined sections of the Plexineon sign exhibiting

thermal damage. He testified that x-ray imaging showed “solder bridging” 

between power and ground strips. Humphrey wrote in his report that “the ‘solder 

bridge’ identified in the IAL report is a plausible explanation for the localized 

overheating.” Humphrey characterized the solder bridging as a “manufacturing 

defect.” However, Humphrey neither testified about, nor discussed in his report,

iLight’s specifications for the product or how iLight had intended the soldering to 

be done on its product. In short, with respect to the allegation of faulty soldering, 

Humphrey’s expert opinion presented no evidence that the Plexineon product

deviated in its construction or quality from how iLight intended or planned to 

manufacture the Plexineon product. See Pollock, 284 S.W.3d at 818. 
15

Clutch City also points to its evidence from the federal lawsuit filed by 

iLight against Marktech—the company that supplied the LED light strips to iLight 

for its Plexineon product—as showing that the product deviated in its construction 

or quality from its specifications or planned output. In that suit, iLight has alleged 

that Marktech supplied it with defective LED strips. At trial, iLight’s CEO, Sean 

Callahan, testified that the defect alleged in that case arises from complaints by 

iLight’s customers that the LED strips supplied by Marktech cease to illuminate or 

light up. The suit is not premised on allegations that the LED strips are 

overheating and causing fires. 

iLight’s federal complaint does indicate, in general terms, that Marktech did 

not follow iLight’s product specifications in manufacturing the LED strips. In the 

complaint, iLight alleges that Marktech failed to follow specifications by switching 

component parts. Clutch City also points to an affidavit in the federal suit, signed 

by Sean Callahan, in which he states that another company, Cree, which supplies 

LEDs to Marktech, had claimed that Marktech had failed to control “temperatures 

and the duration” during wave soldering. None of the evidence from the federal 

lawsuit, however, addresses soldering specifications or planned output by which 

the jury could have measured any deviation. Nor does that suit contain allegations 

by iLight that Marktech used excess solder material or that anomalous solder 

bridging caused the product failures claimed in that litigation. The evidence from 
16

that suit is of little probative value in determining whether the Plexineon product

deviated in its construction or quality from its specifications or planned output with 

respect to the allegations in this suit. 

We hold that iLight did not present legally sufficient evidence to show that 

the Plexineon sign deviated in its construction or quality from its specifications or 

planned output with respect to the claim that faulty soldering constituted a 

manufacturing defect. However, as mentioned, Clutch City also offered evidence 

at trial identifying other conditions in the Plexineon product that it asserted 

constituted manufacturing defects. 

Clutch City’s process engineering expert, Kurt Humphrey, testified that, in 

addition to the “soldering bridge,” he detected other anomalous conditions in 

sections of the Plexineon product that he analyzed. He identified these conditions 

in his expert report. Specifically, Humphrey identified the following conditions 

that he referred to as “manufacturing defects”: (1) unknown internal contaminants

found within the plastic encasement of the LED light strip and (2) corrosion and

discoloration of solder joints, resulting from an unknown chemical reaction, 

causing degradation of the joints. He testified that these conditions would have 

occurred during, and been present since, the manufacturing process. Humphrey’s 

testimony regarding these conditions provided some evidence to show a deviation 

in quality from the planned output. Contaminants and corroded solder joints are 
17

not elements that a manufacturer, such as iLight, would intend or plan to 

incorporate into its product during the manufacturing process. See Am. Tobacco 

Co. v. Grinnell, 951 S.W.2d 420, 434 (Tex. 1997) (holding that pesticide found in 

cigarettes is a deviation from the planned output type of defect because no cigarette 

manufacturer would intend to include pesticides in its cigarettes). Nonetheless, to 

prove its strict liability manufacturing defect claim, Clutch City was still required 

to show that such manufacturing defects were a producing cause of the fire. See 

Ridgway, 135 S.W.3d at 600. 

iLight contends that Clutch City offered legally insufficient evidence to 

establish producing cause. Because we have determined that legally insufficient 

evidence was offered to show that the faulty or excess solder was a deviation from 

specifications or planned output—and thus could not serve to establish a 

manufacturing defect—we do not analyze whether such alleged defect was a 

producing cause of Clutch City’s injuries. Instead, we limit the analysis to 

determining whether evidence was presented to show that the other manufacturing 

defects specifically identified by Humphrey—such as, unknown internal 

contaminants and degraded solder joints—were producing causes of the fire. 

C. Producing Cause

The jury charge asked whether there was a manufacturing defect in the 

Plexineon product at the time it left iLight’s possession that was a producing cause 
18

of the fire. “Producing cause” was correctly defined as a “cause that was a 

substantial factor in bringing about the occurrence, and without which the 

occurrence would not have occurred.” The charge also informed the jury that there 

may be more than one producing cause. A producing cause must be a cause-infact; that is, it must be a substantial factor in bringing about the injury, and a cause 

without which the injury would not have happened. See BIC Pen, 346 S.W.3d at 

541; Ledesma, 242 S.W.3d at 46.

Expert testimony is generally required in manufacturing defect cases to 

prove that the specific defect caused the accident. BIC Pen, 346 S.W.3d at 542;

see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (“Proof other 

than expert testimony will constitute some evidence of causation only when a 

layperson’s general experience and common understanding would enable the 

layperson to determine from the evidence, with reasonable probability, the causal 

relationship between the event and the condition.”). 

Clutch City’s usage of the bleach-and-water solution and a high pressure 

washer was iLight’s primary defense at trial. It argued that the use of this cleaning 

method accounted for the degradation and corrosion observed in the Plexineon 

product. In his report and at trial, Humphrey opined that the degradation and 

corrosion observed in the internal components of the product may have led to a 

short circuit, to overheating, and to the fire. However, based on tests that he 
19

conducted, Humphrey ruled out the bleach-and-water solution used to clean the 

Toyota Center roof as a cause for the degradation and discoloration that he saw in 

the internal components of the Plexineon light product. In his report, Humphrey’s 

wrote, “[T]he specific locations and variation in severity among the examined sites 

showing discoloration, staining, degradation of the solder joints, and evidence of 

overheating appear to be inconsistent with chemical attack from an external source 

as a root cause of the anomalies.” 

Humphrey’s report continues, 

[A]lternative mechanisms and other contributing factors, including but 

not limited to, contamination during manufacturing, e.g. preencapsulation contamination, soldering anomalies, material failures, 

and component failures, must be considered as more likely causes for 

the discoloration, degradation, and evidence of localized overheating 

observed among the iLight lighting samples examined. Although the 

root cause of the localized heating in this particular case remains 

undetermined, manufacturing defects, e.g. soldering anomalies (as 

indicated in IAL’s failure analysis report) and contaminants; 

component failures, e.g. discrete component failures including LEDs, 

resistors, voltage regulators, constant current drivers, etc., product 

design flaws or inadequate tolerances, and/or material integrity 

failures are among the most common and suspected culprits.

The results of this preliminary investigation of selected iLight 

Plexineon® LED lighting samples from the Toyota Center and review 

of provided technical documentation point to: 1) LED strip fabrication 

defects and/or contaminants, 2) intrinsic material or component 

failure, and/or 3) fundamental design flaws or sensitivities associated 

with 1) or 2) as the most likely causes of the lighting failures. 

Preliminary assessment of the installation, maintenance, and cleaning 

methods and procedures used at the Toyota Center with respect to the 

iLight Plexineon® LED lighting system appear to be consistent with 

iLight requirements and general engineering practice. Although the 
20

root cause of the Toyota Center LED lighting fires remains unknown 

at this time, the preponderance of evidence points to the potential 

causes enumerated above, not installation or maintenance conditions.

The results of this preliminary investigation are insufficient to draw 

firm conclusions regarding the root cause(s) of the iLight Plexineon® 

LED lighting localized heating and related fires. It is recommended 

that: 1) further product investigations, including x-section and EDS 

(or other chemical analysis) be performed at selected sites on iLight 

Plexineon® LED lighting samples to gather more data to inform root 

cause failure analysis, 2) detailed technical information be provided 

by iLight and its suppliers describing key process steps and 

capabilities, PCB layout dimensions and tolerances, components, 

equipment, and materials used in the fabrication of the iLight 

Plexineon® LED lighting system in question, and 3) request input 

from iLight regarding Plexineon® LED lighting design parameters, 

product test and reliability data, and product safeguards with respect 

to over-power, over-current, and over-temperature conditions.

In sum, rather than establishing what specific condition caused the fire, 

Humphrey’s report ruled out what did not cause the fire; that is, it eliminated

Clutch City’s cleaning and maintenance, including its use of bleach on the lights, 

as a cause for the product failure and the fire. The report enumerated possible 

causes of the fire, including not only what Humphrey termed “manufacturing 

defects,” but also “product design flaws” and “fundamental design flaws.” 

At trial, Humphrey somewhat narrowed his opinion. He testified that he 

believed the probable cause of the fire was a short circuit associated with 

conditions he called “manufacturing defects.” However, as he did in his report, he 

stated that his analysis was preliminary in nature because he did not have sufficient

detailed information and had not conducted an adequate in-depth analysis to 
21

determine the “root cause” or a specific cause of the fire. Humphrey opined that 

the fire could have been caused by any one of the “manufacturing defects” that he 

identified, including a soldering anomaly as found by Shade and IAL. 

In its brief, Clutch City points out that it was required only to show that a 

manufacturing defect was a substantial factor in bringing about the fire and was not 

required to show that a manufacturing defect was the singular cause of the fire. 

See Ledesma, 242 S.W.3d at 45–46. Nonetheless, Clutch City was required to 

show that the fire would not have occurred in the absence of a manufacturing 

defect. See id. at 46. We agree with iLight that Clutch City did not make this 

showing. 

Although he testified that he believed a “manufacturing defect” caused the 

fire, Humphrey did not address in his testimony which manufacturing defect was 

the most likely cause. To the contrary, Humphrey made clear that further study 

and analysis was required to determine which of the identified manufacturing 

defects caused the fire. Among the defects he recognized was the soldering

anomaly as identified by Shade. As discussed supra, legally insufficient evidence 

was presented at trial to establish the soldering anomaly as a “manufacturing 

defect,” as defined by the jury charge and the law. Humphrey did not assign any 

more likelihood to the soldering anomaly being the manufacturing defect that 

caused the fire than he did to the other manufacturing defects that he identified. 
22

Similarly, Clutch City offered no proof to address whether a design defect may, or 

may not, have been a cause for the fire. In contrast, Humphrey’s report expressly 

identified “fundamental design flaws” as a possible cause. His report did not 

assign any more likelihood to a manufacturing defect being the cause of the fire 

than a design defect. 

The evidence presented by Clutch City did not contain proof that 

manufacturing defects, such as unknown contaminants or corroded parts, were 

more likely causes of the fire than a soldering anomaly. Nor did Clutch City 

eliminate design defect as a possible cause of the fire. See Cooper Tire, 204 

S.W.3d at 807 (“[E]ven if plaintiffs had eliminated every conceivable reason for 

the tire failure other than a product defect existing when the tire left Cooper Tire’s 

plant, they did not eliminate the possibility of a design defect.”) Accordingly, 

there was less than a scintilla of evidence from which the jury could have 

determined that the source of the fire was one of the alleged defects that it could 

have found to be a manufacturing defect. See Tamez, 206 S.W.3d at 583.

We hold that the evidence was legally insufficient to show that a 

manufacturing defect was a producing cause of the fire. We sustain iLight’s first 

issue.
23

D. Negligence 

iLight challenges the legal sufficiency of the evidence to support the jury’s 

affirmative finding that iLight’s negligence proximately caused the fire. The 

charge defined negligence as “the failure to use ordinary care, that is, failing to do 

that which a person of ordinary prudence would have done under the same or 

similar circumstances or doing that which a person of ordinary prudence would not 

have done under the same or similar circumstances.” 

To support the jury’s negligence finding, Clutch City points to the testimony 

of iLight’s CEO, Sean Callahn, in which he stated that iLight’s quality assurance 

and quality control procedures did not detect the product defect that was involved 

in iLight’s federal lawsuit against Marktech, the manufacturer of the LED light 

strips. Clutch City also premises its negligence claim on iLight’s knowledge that 

the Plexineon product contained defective LED lights sold to it by Marktech. 

Clutch City intimates that iLight knew of the defects when it replaced the 

Plexineon sign on the Toyota Center roof following the 2007 fire. On appeal, 

Clutch City asserts that “iLight discovered that its LED sign parts [sold to it by 

Martech] were defective as early as late 2007, but there was no change in quality 

control procedures, manufacturing, or any warnings to Clutch City prior to the 

2009 fire.”
24

Clutch City offered into evidence filings from iLight’s federal lawsuit 

against Marktech indicating that iLight had submitted LED light strips to 

independent laboratories for testing in late 2007 and that the testing had shown the 

strips were defective. In an affidavit from the federal litigation, CEO Sean 

Callahan testified that iLight had been told by Cree—the company who supplied 

the LEDs to Marktech—that Marktech was using too much heat when soldering 

the LED lights. At trial, Callahan explained that Cree claimed that the heat used 

by Marktech to solder the LEDs was too high, thereby damaging the LED lights 

supplied by Cree to Marktech. However, there was no evidence that the soldering 

issue reported to iLight by Cree was an issue of excess solder or solder bridging, 

which is the primary defect alleged in this suit. 

At trial, Callahan testified that the defect at issue in the federal litigation 

with Marktech involved a failure of the LED lights to continue to illuminate. 

Callahan testified that it was determined that power was not reaching the LEDs to 

illuminate them. In other words, the lights were going out, and iLight’s customers 

experiencing this problem were dissatisfied. Callahan testified that to determine 

whether the LEDs had the illumination defect at issue in the Marktech suit required 

destructive testing of the product. Callahan stated that he was not aware that the 

illumination defect at issue in the federal suit resulted in any overheating problems 
25

or in any fires. Callahan indicated that iLight had not informed Clutch City of the 

Marktech issue because it did not affect Clutch City. 

As part of its negligence claim, Clutch City was required to show that 

iLight’s alleged negligence proximately caused the fire. See W. Invs., Inc. v. 

Urena, 162 S.W.3d 547, 550 (Tex. 2005). Here, the jury was instructed, 

“Proximate cause” means a cause that was a substantial factor in 

bringing about an event, and without which cause such event would 

not have occurred. In order to be a proximate cause, the act or 

omission complained of must be such that a person using ordinary 

care would have foreseen that the event, or some similar event, might 

reasonably result therefrom. 

Corresponding to producing cause in the strict products liability cause of 

action, proximate cause in the negligence cause of action required proof that 

iLight’s acts or omissions were a substantial factor in bringing about the fire and 

without which the fire would not have occurred. See Metro Allied Ins. Agency, 

Inc. v. Lin, 304 S.W.3d 830, 835 (Tex. 2009).

Here, even presuming iLight had a duty (1) to warn Clutch City about the 

illumination defect, (2) to change its quality control procedures to detect the 

illumination defect, and (3) to change its manufacturing process to prevent the 

illumination defect, there is no evidence that but for these failures the fire would 

not have occurred. See Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 

(Tex. 2002) (applying but for causation requirement to negligence case). No 

evidence was introduced showing that the failure-to-illuminate problem at issue in 
26

the federal suit was caused by, or was related to, the defects alleged to have caused 

the fire in this suit. In short, less than a scintilla of evidence was offered to show a 

correlation between the failure-to-illuminate defect and the fire. Thus, we hold 

that the evidence was legally insufficient to establish the element of proximate 

causation and to support the jury’s negligence finding. 

We sustain iLight’s second issue.3

 

Conclusion

We hold that the evidence was legally insufficient to support the jury’s 

affirmative liability findings for strict liability manufacturing defect and for 

negligence. These are the only two liability findings supporting the judgment. 

Accordingly, we reverse the judgment of the trial court and render judgment that 

Clutch City take nothing by its claims against iLight.

Laura Carter Higley

Justice 

Panel consists of Justices Higley, Brown, and Halbach.

4

 3 Because of the resolution of issues one and two, we do not reach the third issue,

which challenges the legal sufficiency of the evidence to support the loss-of-use 

damages.

4 The Honorable Joseph “Tad” Halbach, Judge of the 333rd District Court of Harris 

County, participating by assignment.