Allyson N. Ho

Partner 214.466.4180 aho@morganlewis.com Morgan, Lewis & Bockius LLP 1717 Main Street Suite 3200 Dallas, Texas 75201-7347 Tel. 214.466.4000 Fax: 214.466.4001 www.morganlewis.com

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*In association with Mohammed Buhashem Advocates & Legal Consultants April 10, 2015

VIA ELECTRONIC FILING

Keith E. Hottle, Clerk Texas Court of Appeals Fourth District, San Antonio 300 Dolorosa, Suite 3200 San Antonio, Texas 78205

Re: No. 04-14-00562-CV Jesus De Los Santos, Jr., et al. v. Ford Motor Company

Dear Mr. Hottle:

We write to respond to the post-submission letter brief filed by Plaintiffs-Appellants in the above-referenced appeal. Please forward this response to the panel members assigned to this appeal for their consideration.

Plaintiffs’ letter brief only confirms that the trial court properly granted directed verdict on their manufacturing defect claim. Crucially Plaintiffs-Appellants concede (at 2) that the axle met Ford’s design specifications for hardness. That concession is dispositive of this case. See Torres v. Caterpillar, Inc. , 928 S.W.2d 233, 239 (Tex. App.—San Antonio 1996, writ denied) (“A manufacturing defect is one created by a manufacturer’s failure to conform to its own specifications, i.e., the product would not have been defective if it had conformed to the manufacturer’s design specifications. A design defect exists where the product conforms to the specifications but there is a flaw in the specifications themselves.”).

Plaintiffs complain (at 3) that Ford should have had similar specifications for brittleness. But that argument only confirms that this is a design defect case—not a manufacturing defect case. If brittleness specifications existed, the axle could have been measured against those specifications. If the axle deviated from those specifications in a manner that rendered it unreasonably dangerous, then that would be manufacturing defect. But that is not what we have here, by virtue of Plaintiffs own admission that the axle met Ford’s specifications.

Plaintiffs cannot be heard to argue that a set of specifications should have existed, and that if they had existed, then the product would have deviated from them. It is the deviation from ACCEPTED 04-14-00562-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/10/2015 4:51:13 PM KEITH HOTTLE CLERKKeith E. Hottle, Clerk

April 10, 2015 Page 2

the manufacturer’s specifications (or planned output) that is the indispensable element of a manufacturing defect claim, as opposed to a design defect claim. Ford Motor Co. v. Ledesma

, 242 S.W.3d 32, 42 (Tex. 2007) (“The requirement of a deviation from the manufacturer’s specifications or planned output serves the essential purpose of distinguishing a manufacturing defect from a design defect.”) (emphasis added).

Indeed, the reason Plaintiffs’ expert Clauser testified that the axle was “brittle” was that, according to him, the recipe used for the steel in the axle had too much phosphorus, which “weakens the bonding between the adjacent grains” and thus “makes the steel brittle” such that it “fails at lower [loads] than it should.” 6 RR 96:1-6, 109:11-13; 7 RR 88:23-89:4, 97:17-21. That is a textbook design issue, not a manufacturing issue.

What is more, in the field of metallurgy, “brittle material is not a defective material.” 12 RR 111:12-14. Brittleness is simply a characterization of how metal breaks, not how strong the metal is. 12 RR 111:14-16. That is likely why Plaintiffs have not identified any “brittleness” manufacturing specification—either in their letter or at trial—nor explained how “brittleness” could even be measured. Tensile strength and hardness—which Ford’s specifications address— is what measure the forces necessary to break an axle. They are strength tests—and Plaintiffs concede in their letter that the axle passed those tests. Plaintiffs’ “brittleness” argument is just another variation of their argument that there should have been a specification that did not exist—and as already demonstrated, that is a design issue, not a manufacturing issue, under Texas law.

Finally, Plaintiffs’ letter brief repeatedly assumes that Ford’s specification or planned output for the axle was a performance standard in a sideways yaw, which it was not. If that argument were accepted, then all cases where the product did not perform as expected would be manufacturing defect cases. That is not the law in Texas. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (evidence of a product failure alone is “so slight as to make any inference a guess [and] is in legal effect no evidence”); Casey v. Toyota Motor Eng’g & Mfg. N. Am., Inc. , 770 F.3d 322, 327-28 (5th Cir. 2014) (discussing the difference between performance standards and design specifications and observing that “it is inconsistent with the law as the Texas Supreme Court has stated it” to rely on performance standards to prove a manufacturing defect). In sum, nothing in Plaintiffs’ letter brief alters the conclusion that the trial court properly granted directed verdict to Ford as to the manufacturing defect claim, and that judgment should be affirmed.

Sincerely,

Allyson N. Ho

ANH/lks cc: All Counsel via ECF