IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11119

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 

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2014

Lyle W. Cayce

Clerk

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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.

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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.

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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.

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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 

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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 

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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 

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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).

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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.”). 

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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 

case9 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.”

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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.

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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).

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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 

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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.

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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 

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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 

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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 riskutility 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, 

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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 

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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 

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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. 

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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.

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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.

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