NO. 04-14-00562-CV

IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT 

SAN ANTONIO, TEXAS 

* * * * * 

JESUS DE LOS SANTOS, JR., Individually and as Representative of the 

ESTATE OF JESUS FRANCISCO DE LOS SANTOS, and JUAN DE LOS 

SANTOS, Appellants; and MARCO ANTHONY SOLIS, JR., Cross-Appellant, 

v. 

FORD MOTOR COMPANY, 

 Appellee 

* * * * * 

On Appeal from the 79th Judicial District Court 

Jim Wells County, Texas 

Trial Court Cause No. 11-08-50394-CV

* * * * * 

APPELLANTS’ MOTION FOR REHEARING AND EN BANC MOTION 

FOR REHEARING

* * * * * 

Respectfully submitted, 

Brendan K. McBride

State Bar No. 24008900

Brendan.mcbride@att.net

MCBRIDE LAW FIRM Of Counsel to

 GRAVELY & PEARSON, LLP

425 Soledad, Suite 600

San Antonio, Texas 78205

(210) 472-1111

(210)881-6752 (Facsimile)

Jeffrey G. Wigington

State Bar No. 00785246

jwigington@wigrum.com

R. Reagan Sahadi

State Bar No. 24042369

rsahadi@wigrum.com

WIGINGTON RUMLEY DUNN 

 & BLAIR, LLP

123 N. Carrizo St. 

Corpus Christi, Texas 78401

(361) 881-7500

(361) 884-0487 (Facsimile)

ACCEPTED

04-14-00562-cv

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/22/2015 1:48:50 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 7/22/2015 1:48:50 PM KEITH E. HOTTLE Clerk
2

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................................................................................. 2

TABLE OF AUTHORITIES ........................................................................................................ 3

INTRODUCTION & SUMMARY ................................................................................................ 1

FACTS ....................................................................................................................................... 6

ARGUMENT & AUTHORITIES................................................................................................. 9

A. Appellants’ Expert Specifically Identified The Manufacturing Defect; Cases 

Relied On By The Court Involved Failure To Identify A Specific Defect............ 10

B.The Majority’s Opinion Presents A Substantial Departure From The Established 

Law of Strict Liability. .................................................................................................. 17

CONCLUSION & PRAYER...................................................................................................... 20

CERTIFICATE OF SERVICE..................................................................................................... 23

CERTIFICATE OF COMPLIANCE............................................................................................. 23
3

TABLE OF AUTHORITIES

Page

Cases

American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .......................................... 11

Casey v. Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014) ..... 4, 14, 15, 16

Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969)............................................... 19

De Los Santos v. Ford Motor Co., No. 04-14-005632-CV, 2015 Tex. App. LEXIS 6102 

(Tex. App. San Antonio June 17, 2015, no pet. h.)........................................................ 2

Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992)...................................................................... 10

Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) .................... 10

Flying J Inc. v. Meda, Inc.,373 S.W.3d 680 (Tex. App. – San Antonio 2012, no pet.) 9, 10

Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)................................................11, 14

Ford Motor Co. v. Pool, 688 S.W.2d 879 (Tex. App. – Texarkana 1985) .......................... 11

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .................................................... 19

iLight Techs., Inc. v. Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. –

Houston [1st Dist.] 2013, pet. denied)..................................................................4, 15, 16

LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632 (Tex. App. – Dallas 2012, pet. 

denied).................................................................................................................................. 9

Olympic Arms, Inc. v. Green, 176 S.W.3d 567 (Tex. App. – Houston [1st Dist.] 2004, no 

pet.)...............................................................................................................................16, 17

State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9 (Tex. App. – San Antonio 2009, pet. 

denied)................................................................................................................................ 10

Thiele v. Chick, 631 S.W.2d 526 (Tex. App. – Houston [1st Dist.] 1982, no writ).......... 19

Triplex Communications Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995)...................................... 10

Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979).............................................. 19
4

Rules

TEX. R. CIV. P. 278 ............................................................................................................... 10
1

INTRODUCTION & SUMMARY

Appellant’s seek rehearing or, in the alternative, rehearing en banc, of the Court’s 

opinion in this product liability case based on a manufacturing defect in the axle of 

Ford pickup that allowed the axle to fracture, thereby causing a fatal rollover accident. 

The trial court granted a directed verdict and refused to submit a manufacturing 

defect theory for the jury’s consideration, instructing the jury solely on “design” 

defects even though the pleadings and the evidence supported the submission of a 

“manufacturing” defect claim. Given the standard of review applicable to a directed 

verdict, the majority’s opinion in this case does not give proper and full consideration 

to direct and circumstantial evidence that the axle of the Ford pickup in question was 

defectively manufactured. 

The manufacturing defect claim was supported by all of the following: 

(1) Ford’s manufacturing process makes it possible for some of the axles to 

be manufactured with “embrittled” steel that causes subsurface 

intragranular fractures in the steel of those specific axles that become 

embrittled during manufacturing;

(2) The intragranular fractures in the steel can cause these defectively 

manufactured axles to fail in circumstances in which non-defective axles 

would not have failed.

(3) There was direct evidence that the specific axle in question had the 

specific type of subsurface cracking that results from embrittlement 

during Ford’s manufacturing process;

(4) There was also direct evidence that the catastrophic failure of the axle 

that resulted in this fatal rollover occurred because of this embrittlement 

and intragranular fracture of the steel;
2

(5) There was evidence that the axle fractured during a sideways slide when 

subjected to approximately 32,000 inch pounds of force before the vehicle 

rolled over, thereby causing the rollover; and,

(6) All of the parties and their experts agreed that the axle was intended to 

withstand at least 120,000 inch pounds of force without fracturing, and 

that if it fractured at 32,000 inch pounds during the sideways slide, then 

the axle was defective. 

Justice Martinez was correct in her dissent that that this record contains more 

than a scintilla of evidence to support Appellants’ claim that the axle was defectively 

manufactured. The majority’s opinion depends on two mistaken conclusion about the 

law and facts of this case. 

First, the Court concluded that because Ford had no particular specification for 

the brittleness of its axles then there could be no evidence the embrittled axle at issue 

and the subsurface cracking that caused it to fail were a deviation from the “planned 

output.” De Los Santos v. Ford Motor Co., No. 04-14-005632-CV, 2015 Tex. App. 

LEXIS 6102, *11 (Tex. App. San Antonio June 17, 2015, no pet. h.)(Tab 1). However, 

the law does not require a claimant to prove that the defect in the product that 

renders it unreasonably dangerous under the “consumer expectations” test was in 

conflict with a particular specification. If that were the law, manufacturers of 

dangerous products would have a free pass specifically because they did not have 

detailed specifications to ensure their products were reasonably safe for consumers. 

This would effectively turn the consumer expectations test and the law of strict 
3

liability on its head by rewarding manufacturers for not taking steps to ensure their 

products are reasonably safe.

Rather, the law simply requires evidence that would allow reasonable jurors to 

infer that the product deviated from Ford’s intended output. There was direct

evidence that this particular axle had subsurface cracks resulting from embrittlement 

during the manufacturing process that caused it to catastrophically fail where axles 

without this defect would not have failed. There are also circumstances from which 

reasonable jurors could conclude Ford did not intend to produce its axles with 

subsurface cracking that could cause the axle to fail when subjected to relatively low 

forces in a sideways slide on a roadway.

Second, the majority mistakenly concluded that Appellants were relying solely 

on the failure to meet a performance standard rather than identifying any particular 

manner in which the product deviated from planned output. The majority’s

conclusion is incorrect. There was direct evidence that the axle in question had 

subsurface cracking resulting from embrittlement during the manufacturing process. 

The particular manufacturing defect at issue in this case was expressly and explicitly identified and 

demonstrated to the jury with objective evidence. The evidence that the axle failed to meet the 

expected performance standard – fracturing at 32,000 inch pounds when it should 

have withstood up to 128,000 inch pounds – was relevant to show that the 

manufacturing defect in this particular axle was the cause of its failure, which 

otherwise would not have occurred had the axle not been defectively manufactured
4

and to act as additional circumstantial evidence of the product’s malfunction. 

However, aside from its failure to perform as expected, there was direct evidence of 

how and why the axle failed – direct evidence of a specific manner in which it 

deviated from the axles Ford expected to produce.

The cases on which the majority relies are all distinguishable.1 In each of those 

cases, the plaintiffs were relying on the failure of the product to perform without 

being able to identify the specific manner in which the product deviated from the 

intended output. Here – in stark contrast – there was more than a scintilla of 

evidence from which reasonable jurors could conclude that this particular axle was 

manufactured with subsurface embrittlement fractures in the steel that Ford did not 

intend. Indeed, having heard the evidence in this case, the jury itself was expecting to 

be instructed on manufacturing defect and sent out a written question to the trial 

court asking if they could find a manufacturing defect. (CR2:462; RR13:216-217; 

App. Tab 2)

Since this case involves review of a directed verdict, and there was more than a 

scintilla of evidence that the death of Jesus De Los Santos was caused by a 

manufacturing defect in the pickup’s axle, this case should be remanded for a new 

trial. Appellants respectfully request the Court grant rehearing of this case and vacate 

 

1

iLight Techs., Inc. v. Clutch City Sports & Entm’t, L.P., 414 S.W.3d 842 (Tex. App. – Houston [1st

Dist.] 2013, pet. denied); Casey v. Toyota Motor Eng’g & Mfg of N. Am., 77 F.3d 322 (5th Cir. 2014).
5

the majority’s opinion or, in the alternative, consider this case en banc, vacate the 

Panel’s opinion, and remand this case for a new trial. 
6

FACTS

Jesus Francisco De Los Santos died when the 2005 Ford F-150 pickup truck in 

which he was a passenger rolled over on the evening of November 10, 2010. 

(RR4:157) The pickup was rounding a curve when the driver overcorrected. 

(RR4:109) The pickup went into a skid, during which the passenger-side rear axle 

broke, causing the left rear wheel to completely detach from the pickup. (RR4:110, 

141) 

The investigating DPS officer, Mauro Varela, explained there was a large gouge 

in the road where the truck began to roll. (RR4:110-113) Significantly, the gouge was 

a long line that pointed in the direction of the vehicle roll, leading both Varela and the 

State’s accident reconstructionist, Sergeant Jarrett Hardwick, to conclude that the axle 

broke before the vehicle began to roll. (RR4:114-115) The broken edge of the axle dug 

into the road surface as it made the gouge mark, causing the pickup to catapult into 

the roll. (RR4:141, 207-210, 213-214) Hardwick, a Level 6 DPS crash investigator 

explained to the jury: “During the vehicle’s movement around the curve as it’s 

entering back on the road, I believe that the tire came off when the axle broke causing 

it to gouge the roadway.” (RR4:213) Hardwick explained that there was so much 

physical evidence at the scene to support this conclusion that reconstructing this 

accident was “easy.” (RR4:209-210) 

The De Los Santos plaintiffs’ retained accident reconstruction expert, William 

Greenlees, concurred with the conclusions reached by the DPS investigation and 
7

reconstruction that the axle broke and wheel separated from the vehicle before the 

rollover. He explained that the right-rear wheel and tire separated from the vehicle 

causing the shock absorber assembly to gouge into the road surface. (RR8:59, 64-65; 

9:84) 

Joel Salinas, another passenger inside the pickup, also testified that he felt and 

heard a thump and “nasty cracking” sound as the pickup began to slide sideways 

before rolling. (RR4:165) 

Ford’s corporate representative testified that the axle should not ordinarily 

break during a “yaw” or sideways slide on a roadway. (RR5:63-64) To determine 

whether the axle broke because of a defect, it would be necessary to examine the 

“fracture surface,” though he could not come up with any set of facts other than a 

lateral impact to the axle that would cause it to break unless it was defective. (RR5:65-

67)

The De Los Santos plaintiffs’ engineering and metallurgy expert, Craig Clauser,

examined the fracture surface of the broken axle under a microscope, and had an 

explanation for why the axle failed – it was manufactured in such a way as to 

introduce a tiny crack in the metal – an “intragranular fracture,” which weakened the 

strength of the axle causing it to fail under relatively ordinary operating conditions. 

(RR6:89-94) Clauser explained to the jury how the lines in the broken surface of the 

right, rear axle could be traced back under a microscope to identify the origin of the 

break. (RR6:69). A careful examination of the origin of the fracture showed the 
8

break originated in an intragranular crack in the hardened steel. (RR6:88) The 

location of this crack, offset from the point on the axle that would have experienced 

the highest stress and running vertically instead of horizontally relative to the direction 

of the load on the axle, was the most likely cause of the axle’s fracture. (RR6:89, 110-

111) He could tell from the condition of the crack that this flaw in the metal had 

predated the rollover incident in question. (RR6:110) Clauser’s review of peerreviewed articles supported his opinion that the particular physical evidence from his 

microscopic examination of this axle – particularly the direction of the cracking 

relative to the forces applied during the yaw and nature of the separation between the 

grains in the steel – showed that it was broken as a result of an intragranular fracture. 

(RR6:69-76)

The trial court granted a partial directed verdict, ruling that there was evidence 

of a design defect, but finding that Clauser’s criticism was exclusively in the nature of 

a design defect claim, and then refusing to allow the jury to be instructed about 

manufacturing defect. (RR13:84-86, 91-92) When the De Los Santos plaintiffs 

requested a charge that included a standard form PJC question on “manufacturing 

defect,” the trial court refused the question and the jury was not instructed that they 

could find for the De Los Santos plaintiffs on a manufacturing defect theory. 

(RR13:118-119; CR2:348-359; SRR3) 

The jury understood this was really a manufacturing defect case, and sent out a 

question during deliberations asking: “Should we ignore the possibility of a 
9

manufacturing defect? The charge only asks about design defect.” (CR2:462; 

RR13:216-217) The jury answered “no” regarding the defective product question, and 

since the court’s charge only instructed them regarding design defect, this answer 

negated the only theory of liability the plaintiffs were permitted to submit. (CR2:350-

52)

ARGUMENT & AUTHORITIES

This case is before the Court as a result of a direct verdict and the trial court’s 

refusal, over Appellants’ objection, to submit a question or instruction that would 

allow the jury to consider Appellants’ manufacturing defect theory. Underlying both 

problems is the single issue of whether there was factually sufficient evidence to 

support the manufacturing defect claim based on the record. Applying the standard 

of review for evidentiary sufficiency, there was more than a scintilla of evidence that 

the axle contained a manufacturing defect that was the cause of the rollover and 

resulting death of Jesus De Los Santos.

The standard of review for a directed verdict is a legal sufficiency or “no 

evidence” standard of review. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642 

(Tex. App. – Dallas 2012, pet. denied). In reviewing a directed verdict, the Court 

must “decide whether there is any evidence of probative value to raise an issue of 

material fact on the question presented,” and “review the evidence in the light most 

favorable to the person suffering the adverse judgment.” Flying J Inc. v. Meda, Inc.,373 

S.W.3d 680, 685 (Tex. App. – San Antonio 2012, no pet.) (quoting Exxon Corp. v. 
10

Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011); State Office of Risk Mgmt. 

v. Martinez, 300 S.W.3d 9, 12 (Tex. App. – San Antonio 2009, pet. denied). If a fact 

issue is raised on a material question, a directed verdict is not proper and the issue 

must go to the jury. Flying J at 685.

Moreover, a trial court must submit in its charge to the jury all questions, 

instructions, and definitions raised by the pleadings and evidence. See Triplex 

Communications Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995); see also TEX. R. CIV. P. 278

(“The court shall submit the questions, instructions and definitions in the form 

provided by Rule 277, which are raised by the written pleadings and the evidence.”). 

If there is some evidence to support a jury question and the court does not submit the 

question, the court commits reversible error. Elbaor v. Smith, 845 S.W.2d 240, 243 

(Tex. 1992). In determining whether a trial court should have submitted a question to 

the jury, the reviewing court must examine the record for evidence supporting 

submission and ignore all evidence to the contrary. Id. Conflicting evidence presents a 

fact question for the jury. Id.

A. Appellants’ Expert Specifically Identified The Manufacturing 

Defect; Cases Relied On By The Court Involved Failure To 

Identify A Specific Defect.

Contrary to the Court’s opinion, Appellants did not rely on evidence of the 

failure to meet a performance standard as proof of a manufacturing defect. Rather, 

Appellants offered extensive direct and specific evidence of how this particular axle deviated from 

the intended axles. This was principally through Appellants’ metallurgy expert, Craig 
11

Clauser, who examined the fractured surface of the broken axle under a microscope, 

and specifically explained why the axle failed in relatively low forces. 

A plaintiff has a manufacturing defect claim when a finished product deviates, 

in terms of its construction or quality, from the specifications or planned output in a 

manner that renders it unreasonably dangerous. American Tobacco Co. v. Grinnell, 951 

S.W.2d 420, 434 (Tex. 1997)(citing Ford Motor Co. v. Pool, 688 S.W.2d 879, 881 (Tex. 

App. – Texarkana 1985), aff'd in part and rev'd in part on other grounds, 715 S.W.2d 629 

(Tex. 1986)); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 41 n16 (Tex. 2007).

There was direct evidence of the manner in which the axle in this particular

vehicle contained a deviation from the planned output. Clauser explained the axle

was manufactured in such a way as to introduce a tiny crack in the metal – an 

“intragranular fracture” – which weakened the strength of the axle causing it to fail 

under relatively ordinary operating conditions. (RR6:89-94) From his investigation of 

the fracture surface, he confirmed that the failure of the axle that caused the truck to 

roll originated in this intragranular fracture in the steel. (RR6:88) 

But that was not all. Clauser also explained how such an intragranular fracture 

is an unintended consequence of “embrittlement” of the steel that occasionally occurs 

during the manufacturing process. Clauser’s examination of the axle showed a 

subsurface crack that he explained are caused by certain variables during the heat 

treating process that yield weaker, embrittled axles like the subject axle and produced 

this sort of subsurface fracture in the metal. (RR7:79-80) 
12

Clauser explained that the nature of the crack showed this was a “result of the 

material being embrittled” rather than a “ductile” or bending crack. (RR6:93) He 

explained how he knew this was an embrittlement crack and not a ductile crack based 

on his examination of the metal under a high-powered microscope. (Id.) 

“Embrittlement” occurs because variables in the heat treating process create this 

embrittled metal when there is too much phosphorous present:

Q. Okay. So that we have a clear answer to the specific question rather 

than just a general, why does .007 phosphorus – that’s not very much --

matter, but in the context of going to 1050 steel and the fact that it’s a 

hardened steel, is the difference between .010 phosphorus and .017 

phosphorus, is it significant to the performance of the axle?

A. Yes, sir.

Q. And is it significant in the senses of -- what properties of the steel will 

it affect by having, as you are critical here, a defect in too much 

phosphorus in the design?

A. It embrittles it. It makes the steel brittle so that you don’t get -- you 

don’t get Herrera’s numbers. You get the -- half of that.

Q. And have you seen -- now I’m going to the analysis you did. Have 

you seen with your own -- and I don’t mean naked eye. It’s under 

microscopic view -- of how much magnification to see that it’s 

embrittled?

A. You started seeing it around 200, 300,000 times.

Q. And those are the slides you guys went through earlier with Mr. 

Wigington that show the difference between embrittled steel and -- the 

words I grabbed on is embrittled steel is the weaker steel.

A. Correct.
13

(RR7:88-89; 8:24-25) A reasonable jury could conclude that the heat treating process 

caused the metal of this particular axle to be produced with unintended subsurface 

cracking in the metal. 

Clauser further explained that this embrittlement was not the intended output, 

but was a deviation from the axles Ford intended to produce:

Q: And you’re saying that because of that composition of a recipe, when 

it goes through induction hardening, even though you do the induction 

hardening right, because the recipe is wrong, sometimes you believe you 

can have these little fractures that occur in subsurface [sic] of the axle, 

correct?

A: That – that is correct. . . . because the – the lower the phosphorus is, 

the more tolerant the steel is of deviations, variation in the – the 

induction hardening and tempering process . . . 

Q: And because the recipe is wrong, sometimes, when you induction 

hardened [sic] or when you temper it, you could have embrittlement 

issues, and it makes it susceptible to embrittlement fractures?

A: Correct.

Q: It isn’t true, in your opinion, that every single axle will experience 

this problem?

A: That is correct.

Q: Only some of them?

A: Yes.

(RR8:24-25)

Thus, a manufacturing defect was not presumed by the mere happening of an 

accident, nor solely because of the failure of the axle to meet an expected level of 
14

performance as the majority mistakenly held. Rather, Clauser carefully examined the 

axle and found direct, objective evidence that the root cause of its failure was an 

intragranular crack in the metal that was not part of the intended output but that 

sometimes can result when the amount of phosphorous in the steel recipe allows the 

metal to be embrittled and cause the specific, actual physical defect he found and described in the 

subject axle. 

In fact, there was no dispute that there was subsurface cracking in the metal of 

the axle – with Ford’s own expert, Dr. Juan Herrera, acknowledging that there was an 

intragranular fracture in the metal of the axle, which he was unable to explain. 

(RR13:30-31) Certainly if an axle with weakened fracture points in the metal were 

part of the intended output it would be easy enough to explain that it was there 

because Ford expected it to be there. 

This is far more than the evidence in the cases cited and relied on by the Court. 

In Casey, the court concluded that a violation of a performance standard “without 

more” is insufficient to prove a manufacturing defect. The problem in that case was 

the plaintiff’s failure to identify “a specific defect” as the cause of damages. Id. 77 F. 

3d at 326 & n8. The plaintiff’s evidence in Casey was solely “result-oriented” and 

“not manufacturing-oriented,” and thus gave no explanation as to the specific nature 

of the alleged manufacturing defect in the product. Id. at 328. Here, by contrast, in 

addition to the failure of the product to meet expected performance standards, 

Clauser provided a lengthy and detailed “manufacturing-oriented” explanation of how 
15

the heat treating process caused this particular axle to be produced in its embrittled 

condition – different from and more dangerous than the other Ford axles.

Moreover, in Casey, the court concluded that there was no evidence that the 

product performed any differently than any other product produced by Toyota, and 

thus the claim could only be a design defect claim. Id. at 328-29 & n8. However, the 

evidence here showed that this particular axle was weakened as a result of 

embrittlement that occurred during the manufacturing process, making it fracture in 

response to forces that regular, non-embrittled axles would have withstood. It was 

different from, and more dangerous than, other axles produced by the same design 

and manufacturing process.

In iLight, the plaintiff’s expert opined that there was extra solder causing a short 

inside a circuit board, but offered no explanation of whether this was more or less 

solder than called for in the product’s design specifications. Id. 414 S.W.3d at 848. 

Since it remained possible that every board produced had this same dangerous 

condition, there was no evidence that the particular board in question deviated from 

the planned output or specifications. Id. Here, Clauser clearly explained that the 

intragranular fracture that caused this particular axle to fail was a result of tolerances 

within the manufacturing process that made it possible for this sort of defect to 

sometimes occur. Clauser explained that most of Ford’s axles would not have this 

defect. 
16

Thus, unlike iLight where there was no evidence to demonstrate that the defect 

was not an intended part of the design, here there was more than a scintilla of evidence 

that this sort of intragranular fracture was not the intended output, but an occasional 

defect that occurred during manufacture. And unlike Casey, the explanation for that 

defect and its nature was not based solely on a failure to perform as expected, but was 

rather clearly “manufacturing-oriented.” Casey, 77 F.3d at 328.

The evidence of a specific, identifiable manufacturing defect in this case is 

considerably more what the plaintiffs produced in Casey or iLight. Clauser identified a 

specific, tangible manufacturing defect – the steel of this axle was embrittled during 

the manufacturing process (specifically during the heat treating) resulting in a 

particular, objective deviation – an intragranular fracture in the steel of this particular 

axle was the cause of its failure. Thus, the majority is simply mistaken about the 

record. This was not an attempt to rely solely on the failure to meet a performance 

standard as circumstantial evidence of a manufacturing defect without identifying the 

defect.

Remarkably similar evidence has been found sufficient to support a 

manufacturing defect finding. For instance, in Olympic Arms, Inc. v. Green, 176 S.W.3d 

567, 578 (Tex. App. – Houston [1

st Dist.] 2004, no pet.), the theory was that the metal 

recipe used by the manufacturer for a rifle barrel made it possible for a certain type of 

weakness to form in the barrel during the manufacturing. Finding this was sufficient 

evidence to support a jury’s manufacturing defect finding, the court explained:
17

Here, the record contains evidence that Olympic intended some 

inclusions to be present in the steel because the inclusions served a 

purpose. John Slater, Olympic’s expert, explained that manufacturers 

deliberately add sulfur to stainless steel during the formation process to 

make the steel easier to machine. Without the addition of sulfur, stainless 

steel can be “extremely difficult” to machine, and the inclusions allow 

the steel to become “easily machinable.” In asking for judgment 

notwithstanding the verdict, however, Olympic ignored McClelland's 

testimony regarding the correlation between the amount of sulfur and 

the resulting number of inclusions and the evidence suggesting that 

Olympic’s barrel failed due to the presence of too many inclusions. 

Moreover, O'Day testified that he had witnessed another Olympic barrel 

fail shortly after Green's. O’Day sold that barrel around the time that he 

built Green's rifle. O’Day had that barrel tested, and the results of the 

analysis revealed that the steel in that barrel was also "full of inclusions," 

causing the barrel to split.

Id. at 578. 

There was evidence that this defect made the subject axle different from and 

more dangerous than axles that were not manufactured with subsurface cracking. 

Finally, there was evidence that the failure of the axle during this sideways slide at 

relatively low forces started with and was caused by the specific manufacturing defect 

identified by Clauser. The jury should have been asked to determine whether there 

was a manufacturing defect in the axle.

B. The Majority’s Opinion Presents A Substantial Departure 

From The Established Law of Strict Liability. 

One particularly troubling aspect of the majority’s opinion in this case is the 

implication that a plaintiff cannot prove a deviation from planned output without 

some direct evidence of a standard set by the manufacturer. There are two problems 

with the majority’s reasoning in that regard. First, it violates the well-established rule 
18

that manufacturing defects (like any fact issue in Texas) can be established by 

circumstantial evidence. Second, it turns the protections intended by strict product 

liability actions on their head by relieving a manufacturer of liability for unreasonably 

dangerous products when the manufacturer sets no standards to assure its products 

are reasonably safe.

In this case, the evidence showed that Ford’s “recipe” for the steel in its axles 

contained enough phosphorous that it enabled axles to occasionally be produced in an 

“embrittled” state prone to the type of intragranular fracture this axle showed. Ford 

tried to equivocate between its “hardness” standard and the products brittleness, but 

even its own corporate representative conceded these were different risks and that 

Ford had no standard for testing the brittleness of the steel in its axles.2 Taking the 

lack of any standard for brittleness as its jumping off point, the majority concluded 

that there was no evidence the axle deviated from the planned output – despite 

evidence that embrittled axles were only an occasional occurrence in the production 

process. The majority’s reasoning sets a dangerous precedent and changes the 

standards for proof in manufacturing defect cases under Texas law.

“Circumstantial evidence is probative evidence as to whether a product was 

defectively manufactured.” Thiele v. Chick, 631 S.W.2d 526, 530 (Tex. App. – Houston

 

2 This issue was a large focus of the oral argument in this case and was addressed with numerous 

citations to the record in a post-submission letter brief. In the interests of brevity, the postsubmission letter, which includes quotations and references from the record regarding the difference 

between “hardness” and “brittleness” and the lack of any standard at Ford related to brittleness, is 

attached in the appendix, Tab 3, to this Motion for Rehearing.
19

[1

st Dist.] 1982, no writ); see also Turner v. General Motors Corp., 584 S.W.2d 844, 848 

(Tex. 1979); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). In Darryl, the 

Texas Supreme Court wrote:

To exclude circumstantial evidence that the product was defective at the 

time of the sale would frustrate the beneficial purposes of the doctrine. 

It would be equally difficult, if not impossible, for the plaintiff to rebut 

by direct evidence all of the conceivable posibilities (sic) which would 

account for the defective condition other than the existence of the 

defect at the time of the sale. Such direct evidence should not be 

required, particularly when dealing with a latent defect. 

Id. at 632; see also Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)(“Both 

direct and circumstantial evidence may be used to establish any material fact.”).

The lack of a brittleness standard does not and cannot preclude the finding that 

the product was still unreasonably dangerous because it was more brittle and prone to 

intragranular fracture than Ford intended. A reasonable jury could infer from the 

following circumstances that the axle was not as Ford intended:

(1) The manufacturing method used by Ford makes it possible for some 

(but not all) of its axles to be manufactured in an “embrittled” state 

leading to the formation of subsurface cracks in the steel of those 

specific axles that become embrittled during manufacture;

(2) This subsurface cracking in the steel can cause these defectively 

manufactured axles to fail in circumstances in which non-defective axles 

would never fail;

(3) There was direct evidence that the axle in this case had the precise sort 

of subsurface cracking that results from embrittlement during 

manufacturing;
20

(4) There was direct evidence that the catastrophic failure of the axle 

occurred at the site of and was caused by this subsurface cracking in the 

steel;

(5) There was evidence that the axle fractured during a sideways slide when 

subjected to approximately 32,000 inch pounds of force before the vehicle 

rolled over, thereby causing the rollover; and,

(6) All of the parties and their experts agreed that the axle was intended to 

withstand at least 120,000 inch pounds of force without fracturing, and 

that if it fractured at 32,000 inch pounds during the sideways slide, then 

the axle was defective. 

Thus, there was circumstantial evidence both that the product malfunctioned under 

circumstances in which it was not supposed to malfunction and evidence from which 

a reasonable jury could deduce the specific defect in the manufacture that caused it to 

so fail and that Ford did not intend to produce axles with embrittled steel like the axle 

at issue. 

The majority clearly erred in not considering these circumstances and in relying 

far too heavily on Ford’s lack of any brittleness standard. The approach taken by the 

majority in this case presents the very real danger of changing Texas law to give an 

advantage to product manufacturers specifically for not developing standards to ensure 

reasonably safe products end up in the hands of consumers. That is not Texas law, 

and it should not become Texas law.

CONCLUSION & PRAYER

The majority’s opinion is based on conclusions about the evidence that are at 

odds with the record. Given the narrow standard of review that prohibits the Court 
21

from substituting its view of the evidence for that of a jury, and that prohibits a 

directed verdict where there is more than a scintilla of evidence to support the claim, 

the majority was mistaken in concluding there was not legally sufficient evidence to 

support the submission of a manufacturing defect theory to the jury. 

A review of the whole record shows both direct and circumstantial evidence 

that the axle deviated from the planned output in a very specific way, and that this 

particular defect was the cause of the failure of the axle that would not have otherwise 

happened. 

The Court should grant rehearing, vacate its opinion and judgment in this 

matter and reverse and remand this case for a new trial. In the alternative, should the 

Panel not grant rehearing, the Court should rehear this case en banc, vacate the 

majority’s opinion and judgment and issue a new opinion and judgment reversing the 

directed verdict and judgment and remanding the case for a new trial.

Respectfully submitted,

________________________________

Brendan K. McBride

State Bar No. 24008900

brendan.mcbride@att.net

THE MCBRIDE LAW FIRM

 Of Counsel to 

GRAVELY & PEARSON, L.L.P.

425 Soledad, Suite 620

San Antonio, Texas 78205

(210) 472-1111 Telephone
22

(210) 881-6752 Facsimile

And

Jeffrey G. Wigington

State Bar No. 00785246

jwigington@wigrum.com

R. Reagan Sahadi

State Bar No. 24042369

rsahadi@wigrum.com

WIGINGTON RUMLEY DUNN 

 & BLAIR, LLP

123 N. Carrizo St. 

Corpus Christi, Texas 78401

(361) 881-7500

(361) 884-0487 (Facsimile)

COUNSEL FOR APPELLANTS, 

JESUS DE LOS SANTOS, JR. 

INDIVIDUALLY AND AS 

REPRESENTATIVE OF THE ESTATE 

OF JESUS FRANCISCO DE LOS SANTOS 

AND JUAN DE LOS SANTOS
23

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been 

forwarded on this 22nd day of July, 2015 to Appellee’s and Cross-appellant’s counsel of 

record via email and by electronic service through Texas.gov.

____________________________________

Brendan K. McBride

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief is in compliance with the rules governing the length 

of briefs prepared by electronic means. The brief was prepared using Microsoft Word 

2010. According to the software used to prepare this brief, the total word count, 

including footnotes, but not including those sections excluded by rule, is 5,312. The text 

of the body of this brief is in the Garamond font, size 14pt. The footnotes are 

produced in Garamond 12pt. font.

____________________________________

Brendan K. McBride
24

NO. 04-14-00562-CV

IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT

SAN ANTONIO, TEXAS

* * * * *

JESUS DE LOS SANTOS, JR., Individually and as Representative of the 

ESTATE OF JESUS FRANCISCO DE LOS SANTOS, and JUAN DE LOS 

SANTOS, Appellants; and MARCO ANTHONY SOLIS, JR., Cross-Appellant,

v.

FORD MOTOR COMPANY,

Appellee

* * * * *

On Appeal from the 79th Judicial District Court

Jim Wells County, Texas

Trial Court Cause No. 11-08-50394-CV

* * * * *

APPENDIX TO APPELLANTS’ MOTION FOR REHEARING AND EN 

BANC MOTION FOR REHEARING

TAB 1: Court’s Opinion and Dissent by Justice Martinez.

TAB 2: Written Question From Jurors During Deliberations.

TAB 3: Appellants’ Post-Submission Letter Brief Detailing Record Citations 

Regarding “Hardness” and “Brittleness” Standards.
TAB 1
No Shepard’s SignalTM

As of: July 22, 2015 11:49 AM EDT

De Los Santos v. Ford Motor Co.

Court of Appeals of Texas, Fourth District, San Antonio

June 17, 2015, Delivered; June 17, 2015, Filed

No. 04-14-00562-CV

Reporter

2015 Tex. App. LEXIS 6102

Jesus DE LOS SANTOS Jr., Individually and as

Representative of the Estate of Jesus Francisco De Los

Santos, Deceased, Juan De Los Santos, Individually, and

Mark Soliz Jr., Appellants v. FORD MOTOR COMPANY,

Appellee

Prior History: [*1] From the 79th Judicial District Court,

Jim Wells County, Texas. Trial Court No. 11-08-50394-CV.

Honorable Richard C. Terrell, Judge Presiding.

Disposition: AFFIRMED.

Core Terms

axle, manufacturing defect, manufactured, crack,

specifications, directed verdict, truck, deviated, unintended,

planned, output, recipe, design defect, battery, trial court,

steel, rear, no evidence, brittleness, pet, configuration,

scintilla, pounds, loads

Case Summary

Overview

HOLDINGS: [1]-Court did not err in granting a directed

verdict in favor of the automobile manufacturer on the

manufacturing defect claim because the injured motorists

failed to produce any evidence to establish that the axle

deviated from the manufacturer’s specifications or planned

output or that the manufacturer treated the axle in an

unintended manner or manufactured the axle in an

unintended configuration.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Civil Procedure > Trials > Judgment as Matter of Law >

Directed Verdicts

Civil Procedure > ... > Standards of Review > Substantial

Evidence > Sufficiency of Evidence

HN1 A trial court may instruct a verdict in favor of a

defendant if a plaintiff fails to present any evidence that

raises a fact issue on the material questions in a suit or if the

evidence conclusively proves a fact that establishes a

movant’s right to judgment as a matter of law. When

determining whether a directed verdict is properly granted,

an appellate court applies a legal sufficiency or no evidence

standard of review. Under this standard, the appellate court

decides whether there is any evidence of probative value to

raise an issue of material fact on a question presented, and

the appellate court reviews the evidence in a light most

favorable to a person suffering an adverse judgment. In

other words, the appellate court must determine whether a

nonmovant produces more than a scintilla of probative

evidence to raise the fact issue. More than the scintilla of

evidence exists when the evidence rises to a level that will

enable reasonable, fair-minded persons to differ in their

conclusions. The directed verdict is not proper when the

nonmovant brings forth more than the scintilla of probative

evidence, as viewed in the light most favorable to the

nonmovant, to raise a genuine issue of material fact; in those

cases, an issue must go to a jury. The appellate court can

consider any reason the directed verdict should be granted,

even if a reason is not stated in a party’s motion.

Torts > Products Liability > Types of Defects > Manufacturing

Defects

Evidence > Types of Evidence > Circumstantial Evidence

Evidence > ... > Testimony > Expert Witnesses > General

Overview

HN2 A manufacturing defect exists when a product deviates,

in its quality or construction, from the specifications or
planned output in a manner that makes it unreasonably

dangerous. A plaintiff must prove the product is defective

when it leaves the hands of a manufacturer and that the

defect is a producing cause of the plaintiff’s injuries. The

plaintiff need not identify exactly how the defect comes into

being, only that the defect can be traced to the manufacturer.

Furthermore, neither direct evidence nor expert testimony is

required to establish the existence of the manufacturing

defect. Often, the manufacturing defect can be proven only

by circumstantial evidence, which is evidence that allows

one to infer a fact based on the circumstances shown by a

proponent of the fact.

Torts > Products Liability > Types of Defects > Manufacturing

Defects

HN3 For purposes of a manufacturing defect claim, evidence

that a product deviates from a performance standard is not

evidence that the product deviates from its specifications or

planned output.

Torts > Products Liability > Types of Defects > Manufacturing

Defects

HN4 To prove a manufacturing defect claim, a plaintiff

must present evidence of a product’s deviation from

specifications or planned output.

Torts > Products Liability > Types of Defects > Manufacturing

Defects

HN5 In the absence of evidence of a standard, evidence that

a product is treated in an unintended manner can establish a

manufacturing defect claim.

Counsel: For APPELLANT: Jeffrey G. Wigington,

Wigington Rumley Dunn & Blair L.L.P., Corpus Christi,

TX; Richard Sahadi, Corpus Christi, TX; Baldemar F.

Gutierrez, Law Offices of Baldemar Gutierrez, P.C., Alice,

TX; Brendan K. McBride, Gravely & Pearson, San Antonio,

TX; F. Blake Dietzmann, Law Office of F. Blake Dietzmann,

San Antonio, TX.

For APPELLEE: Allyson Ho, Morgan, Lewis & Bockius

LLP, Dallas, TX; Denton Nichols, Morgan, Lewis & Bockius

LLP, Houston, TX; Douglas A. Allison, Law Offices of

Douglas Allison, Corpus Christi, TX; Guadalupe Aguilar,

AGUILAR LAW FIRM, PC, Corpus Christi, TX; Michael

W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin,

TX; Jaime A. Saenz, Colvin, Chaney, Saenz & Rodriguez,

L.L.P., Brownsville, TX.

Judges: Opinion by: Marialyn Barnard, Justice. Dissenting

Opinion by: Rebeca C. Martinez, Justice. Sitting: Karen

Angelini, Justice, Marialyn Barnard, Justice, Rebeca C.

Martinez, Justice.

Opinion by: Marialyn Barnard

Opinion

MEMORANDUM OPINION

AFFIRMED

This is an appeal from a directed verdict in favor of Ford

Motor Company (′′Ford′′) in a products [*2] liability case.1

On appeal, Jesus De Los Santos Jr., Individually and as

Representative of the Estate of Jesus Francisco De Los

Santos, Juan De Los Santos, and Mark Soliz Jr.2

(collectively

′′Appellants′′) raise a single issue, contending the trial court

erred in granting a directed verdict in favor of Ford on

Appellants’ manufacturing defect claim. We affirm the trial

court’s judgment.

BACKGROUND

One evening, Mark Anthony Soliz Jr. was driving his

family’s 2005 Ford F-150 Super Crew pickup truck down a

county road. Three of his friends, Joel Salinas and brothers,

Jesus Francisco De Los Santos (′′J.F. De Los Santos′′) and

Juan De Los Santos, [*3] were riding with him. Juan De Los

Santos was seated in the front passenger seat and J.F. De

Los Santos and Mr. Salinas were seated in the left and right

rear passenger seats, respectively. The group was on its way

to Mr. Salinas’s house when Mr. Soliz rounded a curve at an

′′unsafe speed,′′ nearly swerving off the road. In an effort to

prevent the truck from veering off the road, Mr. Soliz

overcorrected, steering the truck sharply to the left. The

truck skidded, rolled over onto the passenger side, and

landed upside down. Mr. Soliz, Mr. Salinas, and Juan De

Los Santos survived the accident without injury; however,

1

The directed verdict was based on a manufacturing defect claim. Issues regarding an alleged design defect were submitted to the jury,

which found in favor of Ford. The portion of the judgment relating to the design defect was not appealed.

2 Although Mark Soliz Jr. identifies himself as a ′′cross-appellant,′′ he is, in reality, an appellant. See TEX. R. APP. P. 3.1 (defining

′′appellant′′ as ′′a party taking an appeal to an appellate court′′). In his brief, Mr. Soliz adopts and fully incorporates the arguments of

appellants Jesus De Los Santos Jr. and Juan De Los Santos.

Page 2 of 6

2015 Tex. App. LEXIS 6102, *1
J.F. De Los Santos, who was not wearing his seatbelt, was

ejected through the left rear window and died at the scene.

During the accident investigation, it was discovered that the

right rear wheel assembly had broken and separated from

the truck, causing the right rear wheel to detach from the

truck.

Jesus Francisco De Los Santos Jr. and Juan De Los Santos

filed suit against Ford on theories of strict products liability,

breach of implied warranties, and negligence, alleging the

truck’s right rear wheel-to-axle assembly was defectively

manufactured and designed. In addition [*4] to their claims

against Ford, Jesus Francisco De Los Santos Jr. and Juan De

Los Santos filed suit against Mr. Soliz and Mr. Soliz’s

father, alleging negligence. The Solizes then filed suit

against Ford, also alleging Ford was liable for the defective

manufacture and design of the right rear wheel-to-axle

assembly. At trial, the core of the dispute centered on when

and why the right rear wheel assembly broke and separated

from the truck. The theory presented by Appellants was that

the axle broke before the truck rolled over because of a

crack that developed during the manufacturing process.

According to Appellants, because of the crack, the axle was

more vulnerable than it normally would have been when

under pressure.

In support of their manufacturing defect claim, Appellants

offered the testimony of an engineering and metallurgy

expert, Craig Clauser. According to Mr. Clauser, the axle

failed, i.e., broke, because of a subsurface crack, which was

the result of brittle steel. Mr. Clauser testified he analyzed

the broken axle and found a tiny crack in the metal. It was

his belief the crack weakened the strength of the axle and

caused it to fail. He further opined that based on the location

[*5] and nature of the crack, the crack predated the rollover

and, in fact, caused the rollover. Mr. Clauser also testified he

believed the type of steel Ford used for its axles contained

a high phosphorus level, and during the heat treating

process, the axle became ′′embrittled′′ and thus, more

susceptible to cracking. He further opined that he believed

a design defect existed, but the root problem stemmed from

the manufacturing process.

Ford presented its own expert, Dr. Juan Herrera, a mechanical

and metallurgical engineer, to testify about the axle’s

fracture. According to Dr. Herrera, the crack in the axle did

not predate the accident, nor was the crack a result of the

truck’s initial slide. Rather, Dr. Herrera testified the crack in

the axle was a direct result of the rollover, occurring when

the wheels slammed down on the asphalt after the truck

rolled over. Dr. Herrera also testified he sent the axle to an

independent lab for testing. The lab performed several tests,

and each test confirmed the axle conformed to Ford’s

specifications. Dr. Herrera stated the tests established the

amount of phosphorus in the axle, 0.017 percent, was within

Ford’s specifications, which required axles [*6] to contain

no more than 0.03 percent of phosphorus, as well as within

the Society of Automotive Engineers’ (′′SAE′′)

3

specifications, which required axles to contain no more than

0.04 percent. Therefore, the axle was not defective,

suggesting the crack was sustained as a result of the roll

over.

After the parties rested, Ford moved for a directed verdict

on, among others, the manufacturing defect claim, arguing

Mr. Clauser’s testimony related to the design of the axle

rather than an alleged manufacturing defect. According to

Ford, Mr. Clauser specifically failed to identify how the axle

deviated from Ford’s specifications as required to sustain a

manufacturing defect claim. The trial court granted Ford’s

motion for directed verdict on the manufacturing defect

claim and submitted to the jury only issues relating to the

design defect claim. The jury found there was no design

defect, and the trial court rendered a take-nothing judgment

based on the jury’s verdict and the directed verdict. This

appeal [*7] followed.

ANALYSIS

On appeal, Appellants contend the trial court erred in

granting the directed verdict in favor of Ford on their

manufacturing defect claim. According to Appellants, they

produced evidence to support their claim that the axle was

defectively manufactured. In response, Ford argues there is

no evidence of a manufacturing defect because: (1) the

evidence Appellants produced related to an alleged design

defect as opposed to a manufacturing defect; and (2) Mr.

Clauser’s testimony was unreliable, thereby constituting no

evidence.

Standard of Review

HN1 A trial court may instruct a verdict in favor of a

defendant if the plaintiff fails to present any evidence that

raises a fact issue on the material questions in the suit or if

the evidence conclusively proves a fact that establishes the

movant’s right to judgment as a matter of law. Prudential

Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77

3 According to the evidence at trial, SAE standards are internationally recognized for their role in ensuring safety, quality, and

effectiveness of products in the mobility engineering industry.

Page 3 of 6

2015 Tex. App. LEXIS 6102, *3
(Tex. 2000); Ibarra v. Nat’l Const. Rentals, Inc., 199 S.W.3d

32, 37 (Tex. App.—San Antonio 2006, no pet.) When

determining whether a directed verdict was properly granted,

we apply a legal sufficiency or no evidence standard of

review. LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632,

642 (Tex. App.—Dallas 2012, pet. denied); Ibarra, 199

S.W.3d at 37. Under this standard, ′′’we decide whether

there is any evidence of probative value to raise an issue of

material fact on the question presented, and we review the

evidence in the light most favorable to the person suffering

[*8] the adverse judgment.’′′ Flying J Inc. v. Meda, Inc.,

373 S.W.3d 680, 685 (Tex. App.—San Antonio 2012, no pet.)

(quoting Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348

S.W.3d 194, 220 (Tex. 2011)); LG Ins., 378 S.W.3d at 642. In

other words, we must determine whether the nonmovant

produced more than a scintilla of probative evidence to raise

a fact issue. LG Ins., 378 S.W.3d at 642. ′′More than a

scintilla of evidence exists when the evidence rises to a level

that would enable reasonable, fair-minded persons to differ

in their conclusions.′′ King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003). A directed verdict is not proper

when the nonmovant brings forth more than a scintilla of

probative evidence, as viewed in the light most favorable to

the nonmovant, to raise a genuine issue of material fact; in

those cases, the issue must go to the jury. Exxon Corp., 348

S.W.3d at 220-21; King Ranch, 118 S.W.3d at 751; Flying J

Inc., 373 S.W.3d at 685. We can consider any reason the

directed verdict should have been granted, even if the reason

is not stated in the party’s motion. Ibarra, 199 S.W.3d at 37.

Application

HN2 A manufacturing defect exists when a product deviates,

in its quality or construction, from the specifications or

planned output in a manner that makes it unreasonably

dangerous. Ford Motor Co. v. Ledesma, 242 S.W.3d 32,

41-42 (Tex. 2007); Cooper Tire & Rubber Co. v. Mendez,

204 S.W.3d 797, 800 (Tex. 2006); Goodyear Tire & Rubber

Co. v. Rios, 143 S.W.3d 107, 111 (Tex. App.—San Antonio

2004, pet. denied). A plaintiff must prove 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.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000).

The plaintiff need not identify exactly how the defect came

into being, only that the defect can be traced to the [*9]

manufacturer. Goodyear Tire, 143 S.W.3d at 111.

Furthermore, neither direct evidence nor expert testimony is

required to establish the existence of a manufacturing

defect. Id. Often, a manufacturing defect can be proven only

by circumstantial evidence, which is evidence that allows

one to infer a fact based on the circumstances shown by the

proponent of the fact. Id.

At trial, Appellants relied on the expert testimony of Mr.

Clauser to prove the existence of a manufacturing defect

with regard to the axle. Mr. Clauser testified he analyzed the

broken axle and found a tiny subsurface crack in the metal.

According to Mr. Clauser, the crack, based on its location

and nature, more than likely caused the rollover. Mr. Clauser

testified he did not believe that every axle manufactured by

Ford contained a crack like the axle in this case, and it was

highly likely the crack was a direct result of Ford’s ′′choice

of recipe,′′ i.e., using steel with a high phosphorous content.

Mr. Clauser explained that because of the high phosphorous

content, the steel became ′′embrittled′′ during the heat

treating process, and as a result, it was more susceptible to

cracks. Mr. Clauser also testified he believed Ford did not

intend to manufacture [*10] brittle axles; rather, the axle

was an unintended manufacturing defect. Mr. Clauser noted

that Ford’s expert, Dr. Herrera, opined that properly

manufactured axles were capable of sustaining bending

loads of more than 100,000 ′′inch pounds′′ or more. Mr.

Clauser opined that in this case, the axle snapped at 40,000

to 50,000 ′′inch pounds,′′ breaking at half the load a standard

axle should be able to bear. Accordingly, Mr. Clauser

believed the axle deviated from the expected standard —

i.e., it contained a crack caused by embrittled steel — and

failed to remain intact when sideways frictional forces were

exerted upon it as the truck slid during the accident.

We hold that after viewing Mr. Clauser’s testimony in a

light most favorable to Appellants, it fails to demonstrate

how the axle deviated in its construction or quality from

Ford’s specifications or planned output. See iLight

Technologies Inc. v. Clutch City Sports & Entertainment,

L.P., 414 S.W.3d 842, 847 (Tex. App.—Houston [1st Dist.]

2013, pet denied) (highlighting that it is necessary to show

manufacturer’s actual specifications or planned output for

product to prove manufacturing defect); Ledesma, 242

S.W.3d at 41-42. At no point did Mr. Clauser testify about

what Ford actually required with regard to axle

specifications, if anything, vis-à-vis brittleness. Furthermore,

there is nothing [*11] in the record showing what Ford’s

specifications or planned output in fact was with respect to

brittleness or how much weight an axle was required to bear.

Rather, Mr. Clauser’s testimony merely shows how the axle

may have deviated from Ford’s performance standards,

which were established by Dr. Herrera’s testimony.

Performance standards describe the intended result of a

product, but do not indicate anything about the product’s

technical specifications or design. See Casey v. Toyota

Motor Engineering & Mfg. North America, Inc., 770 F.3d

322, 328 (5th Cir. 2014). Case law is clear that HN3

evidence that a product deviated from a performance

standard is not evidence that a product deviated from its

Page 4 of 6

2015 Tex. App. LEXIS 6102, *7
specifications or planned output. See id.; see also iLight

Technologies Inc., 414 S.W.3d at 847. Here, Ford’s expert

testified properly manufactured axles were capable of

sustaining bending loads of 100,000 ′′inch pounds′′ or more,

and Mr. Clauser testified the axle snapped at 40,000 to

50,000 ′′inch pounds,′′ indicating it performed below an

expected performance standard — testimony that is irrelevant

to establishing a manufacturing defect.

In support of their contention that Mr. Clauser’s testimony

was sufficient to establish a manufacturing defect, Appellants

rely on Johnson Controls Battery Group, Inc. v. Runnels,

No. 12-01-00183-CV, 2003 Tex. App. LEXIS 10956, 2003

WL 21191063 (Tex. App.—Tyler May 21, 2003, no pet.) (op.

on reh’g, mem. op.). In Runnels, a car battery exploded

[*12] after only twenty months of use and injured Runnels.

2003 Tex. App. LEXIS 10956, [WL] at *6. Runnels sued

Johnson Controls, alleging a manufacturing defect. 2003

Tex. App. LEXIS 10956, [WL] at *1. Runnels relied on

expert testimony from Edward Mrotek, a principal engineer

in the product design group at Johnson Controls, to prove

the existence of a manufacturing defect. Id. After determining

Mr. Mrotek’s testimony was reliable, the appellate court

reviewed Mr. Mrotek’s testimony to determine whether it

was sufficient to permit the jury to find a manufacturing

defect existed with regard to the subject battery. 2003 Tex.

App. LEXIS 10956, [WL] at *5-*6. The expert testified that

95% of Johnson Controls batteries lasted longer than the

subject battery, and the subject battery ′′did not meet the

standard.′′ 2003 Tex. App. LEXIS 10956, [WL] at *6. Based

on this evidence, the court held there was sufficient evidence

to permit the jury to find a manufacturing defect existed

because the expert’s testimony established some evidence

that Johnson Controls had a standard regarding the expected

life span of its batteries, and the battery in question did not

meet that standard. 2003 Tex. App. LEXIS 10956, [WL] at

*6.

Here, unlike the expert in Johnson Controls, neither Mr.

Clauser nor Dr. Herrera presented any evidence that Ford

had a standard regarding brittleness or the weight an axle

was [*13] required to sustain without breaking. Admittedly,

Dr. Herrera testified properly manufactured axles were

capable of sustaining bending loads of 100,000 ′′inch

pounds′′ or more; however, there was no testimony this was

a Ford standard. In fact, in their post-submission letter brief,

Appellants admit Ford did not have a specification or test

for the brittleness of the steel or its propensity to break when

loaded sideways. The law is clear that HN4 to prove a

manufacturing defect claim, a plaintiff must present evidence

of a product’s ′′deviation from specifications or planned

output.′′ See Ledesma, 242 S.W.3d at 41; Cooper Tire &

Rubber Co., 204 S.W.3d at 800; Goodyear Tire & Rubber

Co., 143 S.W.3d at 111.

Admittedly, HN5 in the absence of evidence of a standard,

evidence that a product was treated in an unintended manner

can establish a manufacturing defect claim. See iLight

Technologies Inc., 414 S.W.3d at 848 (looking at whether

appellant presented any evidence that product was

manufactured in configuration unintended by appellee).

However, in this case there is no evidence Ford treated the

axle in an unintended manner or manufactured the axle in an

unintended configuration, i.e., that it failed to follow the

′′recipe.′′ See id. In fact, Appellant’s own expert believed

Ford followed its intended configuration, but he disagreed

with Ford’s recipe, [*14] i.e., he believed the phosphorous

amounts were too high. When posed with the following

statement, ′′You’re saying that Ford didn’t follow the recipe.

Ford did follow the recipe. You’re just saying you disagree

with the recipe,′′ Mr. Clauser stated, ′′Yes, I disagree with

the recipe.′′ In short, it is possible Ford did exactly what it

intended to do with respect to manufacturing the axle, but

Ford utilized a steel that became ′′embrittled′′ during the

heat treating process. Thus, according to Mr. Clauser’s

testimony, the defect, if any, in the axle is a design defect (a

bad recipe) rather than a manufacturing defect (failure to

follow the recipe), and as noted above, issues regarding an

alleged design defect were submitted to and rejected by the

jury. See id. at 849 (pointing out product’s specifications or

planned output may have taken into consideration certain

manufacturing processes and quantified them and in

hindsight such processes may be matter of design defect).

Accordingly, after reviewing the evidence in the light most

favorable to Appellants, we hold Appellants failed to

present a scintilla of probative evidence to establish the axle

deviated in its construction or quality from Ford’s [*15]

specifications or planned output or that Ford treated the axle

in an unintended manner or manufactured the axle in an

unintended configuration. See Exxon Corp., 348 S.W.3d at

220-21; King Ranch, 118 S.W.3d at 751; Flying J Inc., 373

S.W.3d at 685. Because there was no evidence to establish a

manufacturing defect, the trial court did not err in granting

the directed verdict as to the manufacturing defect claim.

CONCLUSION

Based on our foregoing analysis, we overrule Appellants’

sole appellate issue. We hold the trial court did not err in

granting a directed verdict in favor of Ford on Appellants’

manufacturing defect claim because Appellants failed to

produce any evidence to establish the axle deviated from

Ford’s specifications or planned output or that Ford treated

Page 5 of 6

2015 Tex. App. LEXIS 6102, *11
the axle in an unintended manner or manufactured the axle

in an unintended configuration. Accordingly, we affirm the

trial court’s judgment.

Marialyn Barnard, Justice

Dissent by: Rebeca C. Martinez

Dissent

DISSENTING OPINION

A directed verdict is proper when no evidence of probative

force raises a fact issue on a material element of the

plaintiff’s claim, or when the evidence conclusively

establishes a defense to the plaintiff’s cause of action.

Prudential Ins. Co. of Am. v. Fin. Review Servs. Inc., 29

S.W.3d 74, 77 (Tex. 2000). I believe that in this case

Appellants did present more than a scintilla of probative

evidence [*16] to establish a manufacturing defect. Because

the majority holds otherwise, I respectfully dissent.

Rebeca C. Martinez, Justice

Page 6 of 6

2015 Tex. App. LEXIS 6102, *15
TAB 2
462
TAB 3
BRENDAN K. MCBRIDE

Email: Brendan.McBride@att.net

OF COUNSEL

April 6, 2015

Keith E. Hottle, Clerk Via E-filing at Texas.gov

Texas Court of Appeals 

Fourth District, San Antonio

300 Dolorosa, Suite 3200

San Antonio, Texas 78205

Re: Appellant’s post-submission letter brief in De Los Santos v. Ford; 

Cause No. 04-14-00562-CV.

Dear Mr. Hottle:

Appellants have requested leave to file this responsive letter brief by separate motion. If 

leave is granted, please forward this responsive letter brief to the panel members assigned to this 

appeal for their consideration.

During oral argument on March 26, 2015, the Court asked a number of questions 

regarding the “hardness” and “strength” specifications for axle steel. Ford’s counsel indicated 

that there was a “hardness” specification and that the axle met that specification. However, as 

the trial record indicates, the issue is not “hardness” but “brittleness.” As discussed below, even 

Ford’s own litigation expert, Dr. Herrera, explained that Ford had no specification or test for the 

brittleness of steel and propensity to break when loaded by sideways forces. This is the reason Dr. Herrera 

conducted his testing – to determine what the planned output was for axle resistance in “yaw” 

accidents like this one. 

Clauser explained that the reason for the cracking and hence failure of the axle was that 

the metal had become “embrittled” during the heat treating process that is part of the axle’s 

manufacture. (RR6:148; 8:24-25) Discussing the concept of “brittleness,” Dr. Herrera explained 

that it was contrasted with what he called “plasticity.” (RR13:23-24) Plasticity is the ability of 

the metal to deform without breaking when force is applied. (RR13:24) Critically, Dr. Herrera 

conceded that “hardness” testing is not a measure of the axle’s “brittleness” or plasticity. 

(RR13:25)(Q: “Would you agree with me that hardness testing is not a measure of brittleness?” 

A: “Agree.”).

As noted extensively in the briefing and during oral argument, there was evidence of an 

“intergranular fracture” in the metal of the axle caused by the metal being too brittle:
Keith E. Hottle

April 2, 2015

Page 2

Well, what's -- what's important about this crack is that, first of all, you can see the 

steps and the jaggedness. It's intergranular. It's the way a brittle crack would be, not 

a tough ductile crack. So it's the result of the material being embrittled . . . And we

did some etching on this. And you can see that these steps match with the grain 

size of the structure, so it’s an intergranular [sic] structural crack.

(RR6:93-94)

Again, Dr. Herrera explained that this sort of intergranular fracture would be 

related to the metal being “brittle,” rather than being “weak”:

Q: And I think you said intergranular fracture does not mean it’s weak or brittle?

A: Correct. No, wait a minute. It’s not weak. Brittle, yes. Remember exactly what I 

said. It’s a mixed mode fracture. Typically, on brittle fractures you have more 

intergranular type fracture than transgranular or dimples, which the tucked-in 

fracture. So you’re – you’re trying to equate brittleness to weakness. That’s incorrect.

(RR13:26, emphases added; see also RR12:111 (explaining that “brittle” failure of metal means 

“it doesn’t stretch before it fails.”)) One of the examples to contrast this that the jury heard 

were diamonds – they are certainly “strong” and not “weak,” but they are also still “brittle” and 

subject to fracturing when a sufficient force is applied to them. (RR12:112)

The importance of this testimony to the issues raised by the Court’s questions is crucial, 

because the record shows that Ford had a testing specification for “hardness” but not for 

brittleness. (RR12:120)(Dr. Herrera explaining that Ford specifies a standard on the “RockwellC hardness” test). The problem with this axle was its brittleness, not its hardness. Clauser’s own 

testing at Anderson Labs confirmed the steel of the axle met the hardness specification. 

(RR12:121) And as noted above, Clauser’s opinion that this axle was defectively manufactured 

was based on his conclusion that it was too brittle, not that it lacked hardness. However, as 

Clauser explained to the jury, there was an expectation by Ford that the axle would resist 32,000 

inch pounds of lateral force without breaking, there was no other Ford specification for what 

point an axle should fracture during dynamic loading situations. (RR8:37) Ford’s planned 

output was an axle that would not break when subjected to ordinary friction forces in a lateral 

slide or yaw. (Id.) Clauser saw no indication that Ford ever tested what specifically that level 

should be other than Dr. Herrera’s testing for this case. (RR8:35-37) But Clauser, Dr. Herrera, 

Mr. Pascarella (see infra) and Ford’s corporate representative were all in agreement that if the 

axle broke in this sideways slide it did not meet Ford’s expectations. And as explained 

extensively in the briefing to the Court, Clauser had a detailed explanation as to how the 
Keith E. Hottle

April 2, 2015

Page 3

manufacturing process caused this particular axle to be embrittled and contain subsurface 

intergranular fractures.

Thus, there was no testing or quantified specification for the “brittleness” of the axles 

when subjected to a lateral, i.e. “side-to-side,” dynamic force. Ford’s corporate representative, 

Mr. Kalis, stated the closest testing done by Ford was the Axle Shaft Rolling Bending test, which 

he described as the closest to simulating the forces necessary to fracture the axle at the point 

where this axle broke. (RR5:41) This was a test where the axle was placed under a load pushing 

downward onto the axle. (Id.) However, Kalis admitted that this testing specification has no 

side-to-side component, he was not aware of any testing for lateral loading on the axles and, in 

fact, he did not know “what the axle load would be that would break the axle in a lateral sense.” 

(RR4:43; 10:166-67) Though even Kalis agreed that the yaw in this accident imparted a “lateral 

load to the – to the axle.” (RR5:46)

Thus, there was no specification created by Ford for the degree of “plasticity” (in Dr. 

Herrera’s terminology) expected in a good axle subjected to a lateral load as happened in this 

sideways skid – except for the testing that Dr. Herrera did for this case that showed similar axles 

were supposed to resist nearly four times as much sideways force as was applied to the subject 

axle in this accident. As noted in Appellants’ briefing, Dr. Herrera’s testing showed the axles 

should have resisted up to 128,000 inch pounds, but he conceded that the most lateral force this 

axle would have been subjected to in this sideways slide was 32,000 inch pounds. 

(RR12:101,107)

Importantly, Dr. Herrera conceded that if the jury agreed the axle broke during the lateral 

slide rather than after the rollover, the axle would be defective. (RR13:39-40) Likewise, Ford’s 

metallurgy expert, Mr. Pascarella, also agreed that if the jury were to determine the axle broke 

during the slide instead of during the roll, that it “did not meet[] Ford’s requirements in terms of 

expectations.” (RR11:103) And if that were the case, it would be a manufacturing defect. (Id.) 

Pascarella explained:

Q: And if it doesn’t meet Ford’s expectations, that’s a bad apple in the batch? 

A: If that were the case – again, based on what I know about this, I didn’t see any 

maintenance issues with this particular axle, that’s correct.

Q: Okay. And so it sounds like you're agreeing if it happened as described by 

Greenlees and the trooper, you agree it's a defective axle?
Keith E. Hottle

April 2, 2015

Page 4

A: Again, I hesitate on the word "defective," but based on my analysis, I would not 

expect that to happen, and it would not meet Ford's requirements.

(RR11: 103-104)

There was abundant evidence that the axle broke during the slide before the rollover, 

including the accident reconstruction by the certified Texas DPS accident reconstructionist and 

the plaintiffs’ accident reconstructionist, Mr. Greenlees. The jury should have been asked 

whether there was a manufacturing defect and the instructed verdict was reversible error.

Thank you in advance for your assistance in circulating this letter brief to the members of 

the Court’s panel.

Sincerely,

Brendan K. McBride

McBride Law Firm, of counsel to

Gravely & Pearson, L.L.P.

Cc: 

(via electronic service through Texas.gov)

Allyson Ho

Michael Eady