COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00210-CV
LOURDES MARIA VARGAS DE DAMIAN, APPELLANTS
INDIVIDUALLY, AS NEXT FRIEND TO AND APPELLEES
NICOLE DENISSE DAMIAN VARGAS, AND
AS REPRESENTATIVE OF THE ESTATE
OF DEMETRIO DAMIAN CHEN, DECEASED;
GUILLERMO JOSE GASPERI, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF GLORIA GASPERI, DECEASED;
CARLA GASPERI, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
GLORIA GASPERI, DECEASED; ANGELA
CECILIA LASSEN DE GASPERI, AS LEGAL
AND PERSONAL REPRESENTATIVE OF
THE ESTATE OF GLORIA GASPERI;
RICARDO ADOLFO GARAY BARRIOS;
LORENZO ROMAGOSA ACRICH; AND
IDA ROMAGOSA DE ARANJO
V.
BELL HELICOPTER TEXTRON, INC. APPELLEE
AND APPELLANT
------------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
I. Introduction
Appellants1 filed this lawsuit against Appellee Bell Helicopter Textron, Inc.2
on January 25, 2002, alleging, among other things, strict products liability and
negligence, relating to the crash of a Bell 407 helicopter. The case proceeded to
a jury trial in August 2007, and the jury returned its verdict on September 17,
2007. The jury found that there was a design defect in the helicopter; that the
negligence of Bell and one of the helicopter pilots, Captain Damian, caused
Appellants= injuries; that Bell and Captain Damian were each fifty-percent
responsible for causing the accident and resulting injuries; and that Appellants=
damages totaled $294,300. The jury also found that Bell did not act with malice.
The trial court signed the final judgment on February 28, 2008.
All parties appeal from the judgment. Appellants contend in six issues that
the trial court erred by not permitting equitably-adopted children to assert
wrongful death claims, that there is insufficient evidence of comparative
1
Appellants-Cross Appellees are Lourdes Maria Vargas de Damian,
individually, as next friend to Nicole Denisse Damian Vargas, and as
representative of the estate of Demetrio Damian Chen, deceased; Guillermo Jose
Gasperi, individually and as representative of the estate of Gloria Gasperi,
deceased; Carla Gasperi, individually and as representative of the estate of
Gloria Gasperi, deceased; Angela Cecilia Lassen de Gasperi, as legal and
personal representative of the estate of Gloria Gasperi; Ricardo Adolfo Garay
Barrios; Lorenzo Romagosa Acrich; and Ida Romagosa de Aranjo. We refer to
Appellants-Cross Appellees collectively as Appellants.
negligence, that the damage awards are against the great weight and
preponderance of the evidence, and that the trial court should have conducted a
hearing and ordered a new trial for alleged juror misconduct. In its cross-appeal,
Bell contends in six issues that all of Appellants= claims are barred by the
Panamanian statute of limitations, that the trial court should have dismissed the
survival claims by Gloria Gasperi=s estate, that the design-defect and negligence
claims submitted to the jury are preempted by federal law, and that there is no
evidence of design-defects. We affirm in part and reverse and render in part.
II. Factual Background
Appellant Lorenzo Romagosa testified that he is the manager of the
purchasing and export department of Café Duran, a coffee company his family
owns in Panama City, Panama. On January 27, 2000, Lorenzo, his father, and
two of his aunts, Ida Rebecca and Gloria Gasperi, flew on a Bell 407 helicopter
from Panama City to conduct business at one of Café Duran=s farms in Sona,
Panama. Captains Damian and Garay piloted the helicopter. After the family
conducted its business at the company farm, Lorenzo=s father stayed in Sona,
and Captains Damian and Garay, Lorenzo, Ida, and Gloria boarded the helicopter
for the return flight to Panama City. Visibility was good in the area, and they
experienced no problems for most of the flight.
2
We refer to Appellee-Cross Appellant as Bell.
3
Approximately fifty minutes into the flight, and only ten minutes from
Panama City, Lorenzo heard Captain Garay say, Abirds ahead.@ Approximately
thirty to sixty seconds later, Lorenzo heard Captain Garay say Awatch out@ in a
high tone of voice. Lorenzo testified the helicopter then made an abrupt
maneuver, and he felt the helicopter nose pull up drastically, heard a loud noise,
noticed a lot of wind going through the cabin, and saw a bird pass by him and hit
Gloria in the right shoulder. The helicopter had struck a bird, which penetrated
the windshield and entered into the cabin. Lorenzo testified he was thinking at
that point that the helicopter would crash; both of his aunts were screaming, and
there were a lot of feathers and wind in the cabin.
Lorenzo testified that Captain Garay called out Captain Damian=s name
and then asked him for help. The bird had hit Captain Damian in the head, and
he had slumped over the helicopter controls; the bird did not hit Captain Garay.
Lorenzo unbuckled his seat belt, moved behind Captain Damian=s seat, and tried
to pull Captain Damian back from the controls so that Captain Garay could fly the
helicopter. Lorenzo testified the helicopter was Agoing fast, down@ and Captain
Garay was trying to control the helicopter. Lorenzo testified that just after he
pulled Captain Damian back from the controls, he sat in the seat behind Captain
Damian Asplit seconds@ before the helicopter crashed into the mountainous
terrain. He said that the helicopter hit the slope and rolled or descended down
4
the hill before stopping. All of the helicopter=s occupants were injured in the
crash, and Captain Damian=s and Gloria=s injuries were fatal.
Bobby Ross testified as Appellants= aircraft accident reconstruction and
helicopter pilot expert. He testified that the crashed helicopter was a Bell 407
and that the helicopter was manufactured in 1997 and delivered in 1998. Based
on his review of the testimony and physical evidence from the accident, Ross
prepared an animation reflecting his reconstruction of the flight and the crash,
and he described the animation in detail to the jury. Ross testified that the
helicopter was flying at 120 knots forward air speed and at 1,500 feet above sea
level just before colliding with the bird, a black vulture. Ross testified that
Captains Damian and Garay were not negligent, that they did all they could to
save the helicopter and its passengers, and that they did not proximately cause
the accident.
Ross testified that the helicopter hit the terrain tail-first; that the bottom of
the helicopter then hit, pushing the landing gear nineteen inches into the body;
that the helicopter slid down the hill; that the doors came off; but that Gloria was
still restrained inside the helicopter at the time. Ross averred that the helicopter
remained upright for two-thirds of its slide down the hill; that the marks on the
wreckage suggest that it slid on its right side where Captain Damian and Gloria
5
were seated; but that the right-side door had separated from the helicopter,
allowing Gloria to be partially ejected during the crash sequence.
On cross-examination, Ross acknowledged that the Bell 407 has excellent
visibility and maneuverability and that the as-cast acrylic windshield on the Bell
407 gets Ahigh marks@ for optical clarity. Ross testified that a clear windshield is
important, that windshields are very expensive to replace, and that the down time
while waiting for a windshield replacement is unwanted. Ross said that the Bell
407 is a Part 27 helicopter, and he agreed that virtually all Part 27 aircraft have
as-cast acrylic windshields like the Bell 407 and that there are no bird-impact
resistance requirements under the Federal Aviation Act (FAA) or the Federal
Aviation Regulations for Part 27 aircraft. Ross also testified that Part 29
helicopters are larger, that federal regulations require Part 29 helicopters to have
2.2-pound resistant windshields, that the black vulture that hit the Bell 407
weighed significantly more than 3.5 pounds, and that the bird was significantly
larger than even Part 29 helicopters are designed to resist.
Billy Hinds, Appellants= windshield expert, is an aircraft structural design
engineer with more than thirty years= experience designing aircraft
transparencies. He has designed bird-impact resistant windshields for aircraft
such as the F-111 fighter jet, the F-17 stealth fighter jet, and the B-1 bomber. He
testified at trial that the as-cast acrylic windshield in the Bell 407 was
6
unreasonably dangerous and defectively designed because it was not bird-impact
resistant and that the defective design was a proximate and producing cause of
the crash. Hinds testified that a 0.14 inch stretched acrylic windshield and a 0.1
inch polycarbonate windshield are safer alternative materials than the as-cast
acrylic windshield on the Bell 407 and that both were technologically and
economically feasible at the time the Bell 407 was manufactured in 1997. He
also testified that the technology existed in 1997 to properly Amate@ stretched
acrylic or polycarbonate windshields to the structure of the helicopter and resist
an impact with a bird.
William Muzzy, Appellants= seatbelt expert, testified about the restraint
system Gloria was wearing at the time of the crash and how it improperly allowed
her to be partially ejected from the helicopter during the crash sequence. Using
the animation of the crash sequence, Muzzy demonstrated each of the times that
Gloria=s restraint would have locked and then unlocked. Muzzy testified that
even though Gloria still had her seatbelt on, she was partially ejected from the
helicopter during the crash sequence because the locking and unlocking in the
restraint system allowed the seatbelt to continually extend to the point where it
did not restrain her in her seat or even inside the helicopter. He testified that the
restraint system worked as it was designed but that it should have been designed
so that it would not lock and unlock. Muzzy testified that the restraint system in
7
the Bell 407 was unreasonably dangerous and that the use of the restraint
system in the Bell 407 was negligence. Muzzy also testified that the MA-16 was
a safer alternative design than the restraint system in the Bell 407 because the
MA-16 has an omni-directional sensing retractor that would not have allowed
Gloria=s seatbelt to unlock during the crash sequence. Muzzy testified that Athe
lack of an omni-directional vehicle sensing retractor . . . in the aircraft was the
proximate cause of [Gloria] being ejected and [her] subsequent death.@
III. Federal Preemption
In its first issue, Bell contends that the FAA and related federal regulations,
through field preemption, impliedly preempt all common-law claims relating to
helicopter design and airworthiness. Alternatively, Bell contends that federal
regulations have impliedly preempted the field of helicopter windshield design
and bird-strike resistance through conflict preemption.
A. Preemption Law
Federal preemption of state law is grounded in the Supremacy Clause of
the United States Constitution, which provides that Athe Laws of the United States
. . . shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.@ U.S. Const. art. VI, cl. 2; Delta Air Lines, Inc. v. Black, 116
S.W.3d 745, 748 (Tex. 2003); see MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d
8
475, 481 (Tex. 2010). Under the Supremacy Clause, if a state law conflicts with
federal law, the state law is preempted and will have no effect. Maryland v.
Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 2128B29 (1981); Black, 116
S.W.3d at 748. We presume federal law does not bar the state=s exercise of its
historic police powers unless Congress clearly expresses the intent to preempt
such state action. N.Y. State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 655, 115 S. Ct. 1671, 1676 (1995).
The purpose of Congress is the ultimate touchstone in every preemption
case. Retail Clerks Int’l Ass’n v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219,
223 (1963); Black, 116 S.W.3d at 748. We discern congressional intent primarily
from the statute=s language and structure. Medtronic, Inc. v. Lohr, 518 U.S. 470,
486, 116 S. Ct. 2240, 2250B51 (1996); Black, 116 S.W.3d at 748. Also relevant
is the purpose of the statute as a whole, which is revealed through Athe reviewing
court=s reasoned understanding of the way in which Congress intended the
statute and its surrounding regulatory scheme to affect business, consumers, and
the law.@ Medtronic, Inc., 518 U.S. at 486, 116 S. Ct. at 2251; Black, 116
S.W.3d at 748B49.
APreemption can take one of several forms.@ Black, 116 S.W.3d at 748.
Express preemption occurs when a federal law may expressly preempts a state
law. Id.; Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.
9
2001). A federal law may also impliedly preempt a state law A(i) when the
scheme of federal regulation is sufficiently comprehensive to support a
reasonable inference that Congress left no room for supplementary state
regulation or (ii) if the state law actually conflicts with federal regulations.@ Black,
116 S.W.3d at 748; see Hinton, 329 S.W.3d at 482. A state law presents an
actual conflict when a party cannot comply with both state and federal
regulations, or when the state law would obstruct Congress=s purposes and
objectives. See Hinton, 329 S.W.3d at 482; Black, 116 S.W.3d at 748. Bell
does not contend that Appellants= claims are expressly preempted. Thus, we
confine our inquiry to the two types of implied preemption: field preemption and
conflict preemption. See Black, 116 S.W.3d at 748; Great Dane Trailers, 52
S.W.3d at 743.
B. Analysis
1. Field Preemption
Bell first contends that federal law, through field preemption, impliedly
preempts all common-law claims relating to helicopter design and airworthiness.
Appellants counter that although Aclaims regarding prices, airspace management,
pilot qualifications, and failure to warn@ are preempted, courts throughout the
country have determined that the FAA and related federal regulations do not
10
preempt claims against manufacturers for defective product designs. Neither
party cites binding precedent that governs our analysis.3
a. Texas Civil Practice and Remedies Code Section 82.008
Citing civil practice and remedies code section 82.008, Bell argues that
ATexas=s public policy position on the preemptive effect of federal safety
regulations is clear@ because section 82.008 Acreates a >rebuttable presumption=
of non-liability for defective design if the product in question >complied with
mandatory safety standards or regulations adopted and promulgated by the
federal government.=@ See Tex. Civ. Prac. & Rem. Code Ann. ' 82.008(a) (West
2009). We disagree for several reasons.
First, the ultimate touchstone in every preemption case is the intent of
Congress, not Texas public policy. Schermerhorn, 375 U.S. at 103, 84 S. Ct. at
222B23; Black, 116 S.W.3d at 748. Second, Appellants filed this lawsuit in 2002
before the effective date of section 82.008. See Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, ' 5.02, 2003 Tex. Gen. Laws 847, 861; see also Gen. Motors Corp.
3
The parties do reference Geier v. American Honda Motor Co., 529 U.S.
861, 120 S. Ct. 1913 (2000) and City of Burbank v. Lockheed Air Terminal, Inc.,
411 U.S. 624, 93 S. Ct. 1854 (1973), but neither case addresses the issue
presented here. In Geier, the Supreme Court held that a common law tort action
for negligent failure to equip an automobile with an airbag was preempted
because it conflicted with the applicable federal law. 529 U.S. at 881B82, 120 S.
Ct. at 1925B26. In City of Burbank, the Supreme Court held that the field of
aviation noise control is preempted but did not address the field of aviation safety.
411 U.S. at 638B40, 93 S. Ct. at 1862B63.
11
v. Burry, 203 S.W.3d 514, 549 (Tex. App.CFort Worth 2006, pet. denied) (noting
that section 82.008 applies only to suits filed on or after July 1, 2003). Third, the
rebuttable presumption in section 82.008 arises only after the manufacturer
Aestablishes that the product=s . . . design complied with mandatory safety
standards or regulations . . . that were applicable to the product at the time of
manufacture and that governed the product risk that allegedly caused harm.@
Tex. Civ. Prac. & Rem. Code Ann. ' 82.008(a). But Bell does not point to any
federal statute or regulation setting forth mandatory safety standards applicable
to bird strikes for Part 27 aircraft like the Bell 407 helicopter involved in this case.
Thus, even if section 82.008 applied, Bell has not established that its design of
the Bell 407 complied with applicable mandatory safety standards or regulations.
Therefore, we are not persuaded that section 82.008, a statute enacted after this
lawsuit was filed, suggests or requires a finding that federal law preempts
Appellants= design defect and negligence claims relating to the Bell 407
Helicopter.
b. FAA Certification Process
Bell also argues that the FAA certification process is evidence of field
preemption. Under the FAA and applicable regulations, a manufacturer must
receive a Atype certificate@ before manufacturing a new aircraft, indicating the
FAA=s approval of an aircraft=s basic design and ensuring that the design
12
complies with all applicable FAA regulations. See 49 U.S.C. ' 44704(a) (2006);
14 C.F.R. ' 21.21 (2005). The manufacturer must then obtain a Aproduction
certificate@ indicating the FAA=s approval of the manufacturing process that will be
used to construct the approved design. See 49 U.S.C. ' 44704(c); 14 C.F.R. ''
21.139, .143 (2005). Finally, the owner of the aircraft must obtain an
Aairworthiness certificate@ to prove the aircraft is in a safe operating condition and
conforms to the type certificate before the aircraft can be put into service. See
49 U.S.C. ' 44704(d); 14 C.F.R. ' 21.183.
Bell argues that the Atype certificate@ procedural regulations Aillustrate that
the Federal Aviation Administration is intricately involved with the design of any
new aircraft and any modifications to the design.@ However, the court in Monroe
v. Cessna Aircraft Co. addressed and rejected this very argument. See 417 F.
Supp. 2d 824, 833 (E.D. Tex. 2006). In doing so, the court stated,
The FAA=s three-phase certification process for aircraft does not
create a pervasive regulatory scheme demonstrating an intent by
Congress to preempt either the field of aviation safety or state
defective design claims. . . . [T]he regulations requiring the
certification process do not themselves set out safety and design
standards. . . . The regulations that do control the design and safety
of an aircraft are broad and provide a non[-]exhaustive list of
minimum requirements leaving discretion to the manufacturer. For
example, the regulations governing a flight manual=s contents leave
room for Aother information that is necessary for safe operation
because of design, operating, or handling characteristics.@ . . . [And]
the regulation that lists the required contents of an aircraft flight
manual has a non-exhaustive list. . . . The certification process looks
to these safety and design regulations set out by the FAA but does
13
not in and of itself constitute a pervasive regulatory scheme
evidencing an intent by Congress to preempt the field of aviation
safety.
Id. at 833 (internal citations omitted). Significantly, Monroe involved a claim for
Afailing to design and manufacture the aircraft to reduce potential structural
damage resulting from a bird strike.@ Id. at 826B27. We agree with the Monroe
court=s analysis and hold that the certification process Adoes not in and of itself
constitute a pervasive regulatory scheme evidencing an intent by Congress to
preempt the field of aviation safety.@ Id. at 833.
c. Implied Preemption in the Fifth Circuit
Bell cites Witty v. Delta Air Lines, Inc. and argues that Aimplied preemption
is alive and well in the [Fifth] Circuit.@ See 366 F.3d 380, 383B85 (5th Cir. 2004).
Witty sued Delta in a Louisiana federal district court alleging that he developed
deep vein thrombosis while on a flight from Louisiana to Connecticut. Id. at 381.
Witty alleged that Delta negligently failed to warn passengers about the risks of
deep vein thrombosis in pressurized cabins and negligently failed to provide
adequate leg room to prevent deep vein thrombosis. Id. at 382. Delta argued
that Witty=s claims were preempted, and the Fifth Circuit agreed and held that
Afederal regulatory requirements for passenger safety warnings and instructions
are exclusive and preempt all state standards and requirements.@ Id. at 382,
385. However, the Witty court narrowly limited the application of its opinion,
14
stating Awe note our intent to decide this case narrowly by addressing the precise
issues before us.@ Id. at 385. Thus, while implied field preemption may be
Aalive and well@ in the Fifth Circuit as Bell suggests, the Witty opinion itself does
not address whether Appellants= design defect claim relating to the helicopter=s
windshield is preempted.
d. Other Jurisdictions
Citing Abdullah v. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999),
Bell argues that we should hold Athat the FAA impliedly preempts any
common-law claims related to helicopter design and airworthiness.@ In Abdullah,
the Third Circuit addressed whether federal law preempted the plaintiffs‘
common-law claims for failing to take reasonable precautions to avoid known
turbulent conditions and failing to give warnings so that the plaintiffs could protect
themselves from the injuries they sustained due to severe turbulence during
flight. Id. at 365. The court found that Arelevant federal regulations establish
complete and thorough safety standards for interstate and international air
transportation that are not subject to supplementation by, or variation among,
jurisdictions.@ Id. at 367. Thus, the Abdullah court held that Afederal law
establishes the applicable standards of care in the field of air safety, generally,
thus preempting the entire field from state and territorial regulation.@ Id.
15
However, cases from the Sixth, Ninth, and Eleventh Circuits conflict with
Abdullah. In each of those cases, the respective courts held that the FAA did not
preempt defective product claims similar to those asserted by Appellants in this
case. See Martin v. Midwest Express Holdings, Inc., 555 F.3d 806, 808B12 (9th
Cir. 2009) (distinguishing Abdullah and holding plaintiff=s claims for defective
design of aircraft stairs not preempted by FAA); Greene v. B.F. Goodrich Avionics
Sys., Inc., 409 F.3d 784, 788B89, 791, 794B95 (6th Cir. 2005) (citing Abdullah to
find FAA preempted failure to warn claim but applying state law to claim of
defectively manufactured navigational instrument and concluding plaintiff did not
offer sufficient evidence of a manufacturing defect); Pub. Health Trust of Dade
Cnty., Fla. v. Lake Aircraft, Inc., 992 F.2d 291, 292, 295 (11th Cir. 1993) (holding
FAA did not preempt passenger=s defective seat design claim). In addition, a
federal district court in Texas held that the FAA did not preempt state-law
defective design claims relating to bird-strike safety standards. See Monroe, 417
F. Supp. 2d at 836.
Although these cases are not binding precedent, we find the reasoning
from the Sixth, Ninth, and Eleventh Circuits and the federal district court
persuasive. Although the FAA regulates many aspects of aviation, A[n]either the
[FAA] itself, nor its legislative history evidence an intent by Congress to preempt
the entire field of aviation safety. Instead, the [FAA] and its legislative history
16
demonstrate an acknowledgment by Congress that state law tort claims are
viable under the [FAA].@ Id. at 830; see Martin, 555 F.3d at 809B12; Lake
Aircraft, Inc., 992 F.2d at 295. We decline to hold that the FAA impliedly
preempts the field of common-law claims related to helicopter design and
airworthiness, and we overrule this part of Bell=s first issue.
2. Conflict Preemption
Bell also contends that federal regulations have impliedly preempted claims
regarding helicopter windshield design and bird-strike resistance through conflict
preemption. Specifically, Bell argues that because there is a federal regulation
requiring Party 29 Atransport category@ helicopters to be Acapable of safe flight
and landing after impact by a 2.2 pound bird at certain velocities@ and Athere is no
comparable requirement for >normal= category helicopters like the [Part 27] Bell
407 at issue in this case,@ the fact that the Federal Aviation Administration
Aimposed a bird-strike standard on one type of helicopter and not another speaks
volumes.@ According to Bell, Ashort of direct conflict with an actual regulation,
there is no better evidence of >conflict= preemption.@ Appellants respond that the
Afailure to adopt a bird-strike requirement applicable to the [Part 27] Bell 407
cannot create a basis for conflict preemption.@
Bell cites cases from the United States Supreme Court, the Fifth Circuit,
and the Texas Supreme Court for two propositions: (1) that a common-law
17
standard that is more stringent than a federal regulation is preempted if there is
evidence that the federal agency considered and rejected the more stringent
standard and (2) that an agency=s A>delicate balance= of cost or efficiency versus
safety should be respected.@ See Geier, 529 U.S. at 879B81, 120 S. Ct. at
1924B25; Carden v. Gen. Motors Corp., 509 F.3d 227, 231B32 (5th Cir. 2007);
BIC Pen Corp. v. Carter, 251 S.W.3d 500, 506B07 (Tex. 2008). However, Bell
does not point to any evidence that the Federal Aviation Administration
considered minimum standards for bird-strike resistance on Part 27 aircraft like
the Bell 407 at issue in this case. Instead, Bell points only to evidence that the
Federal Aviation Administration considered bird-strike safety proposals relating to
Part 29 Atransport@ aircraft. Without evidence that the Federal Aviation
Administration considered and rejected minimum bird-strike standards in Part 27
aircraft like the Bell 407, Bell has not met its Adifficult burden of overcoming the
presumption against preemption.@ Great Dane Trailers, 52 S.W.3d at 743 (citing
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S. Ct. 615, 625 (1984)).
To borrow the Monroe court=s language discussing field preemption, AIf anything,
the specific lack of bird strike regulations related to the [aircraft at issue]
demonstrates the absence of a pervasive regulatory scheme and leaves room for
state law claims on the issue.@ 417 F. Supp. 2d at 834.
18
Because there are no federal statutes or regulations governing the
minimum standards for bird-strike resistance in Part 27 helicopters like the Bell
407, we cannot conclude that Texas=s common-law design defect cause of action
makes it impossible for Bell to comply with both state and federal requirements or
that the cause of action is an obstacle to the purposes and objectives of
Congress. See Sprietsma v. Mercury Marine, 537 U.S. 51, 65B68, 123 S. Ct.
518, 527B29 (2002) (holding there was no conflict preemption even where the
Coast Guard had decided not to adopt a regulation requiring propeller guards on
motor boats). We hold that Appellants= common-law design defect claims
relating to the Part 27 Bell 407 helicopter do not conflict with federal regulations
concerning helicopter windshield design and bird-strike resistance. We overrule
the remainder of Bell=s first issue.
IV. Panamanian Statute of Limitations
Bell contends in its sixth issue that because the accident occurred on
January 27, 2000, and Appellants did not file this lawsuit until January 25, 2002,
all of Appellants= claims are barred by the one-year Panamanian statute of
limitations for negligence actions. Because Bell=s sixth issue requires an
interpretation of the Panamanian statute of limitations, we apply a de novo
standard of review. See Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468,
471 (Tex. App.CFort Worth 2007, no pet.).
19
Under civil practice and remedies code section 71.031, foreign plaintiffs
must commence their suits both within the time provided by Texas law and Awithin
the time provided by the laws of the foreign state . . . in which the wrongful act,
neglect, or default took place.@ Tex. Civ. Prac. & Rem. Code Ann.
' 71.031(a)(2), (3) (West 2005); see Owens Corning v. Carter, 997 S.W.2d 560,
571 (Tex. 1999). AThus, a foreign plaintiff whose cause of action for personal
injury or wrongful death arose in a foreign state with a shorter limitations period
than Texas=s must file within the limitations period prescribed by that state=s law.@
Owens Corning, 997 S.W.2d at 571B72.
The parties do not dispute that article 1706 of the Panamanian Civil Code
sets forth the Panamanian statute of limitations governing negligence actions, nor
do they seriously dispute the language of article 1706. 4 According to Bell=s
ANotice Regarding Panama Law,@ article 1706 states:
The civil action seeking damages for slander or libel or civil liability
derived from fault or negligence under article 1644 of the Civil Code,
prescribes [that suit be filed within] a period of one year running from
the time the claimant learned of the loss.
If a criminal or administrative action for the facts described in the
above paragraph is timely filed, the prescription of the civil action
starts to run from the sentencing of the criminal or administrative
action, as the case may be.5
4
Bell and Appellants each filed a translated copy of article 1706. Although
the translations differ slightly, the differences are not material to our analysis.
5
Appellants= translation of article 1706 states:
20
Bell contends that because Appellants did not file suit within one year of the
accident, Appellants= claims are barred by the statute of limitations. However,
Appellants presented evidence of a criminal investigation that began on January
27, 2000, the day of the accident, and that ended in May 2002, several months
after Appellants filed this lawsuit. Thus, under the plain language of article 1706,
Appellants filed this lawsuit within the statute of limitations as set forth in the
Panamanian Civil Code. We overrule Bell=s sixth issue.
V. Wrongful Death and Survival Claims
A. Equitably Adopted Children
In their sixth issue, Appellants contend that the trial court erred by granting
a partial summary judgment that Carla and Guillermo Gasperi, Gloria
Gasperi=s alleged equitably-adopted children, lacked standing to bring a
The civil action to claim indemnification for calumny or slander or to
demand civil liability for the obligations derived from guilt or
negligence referred to in Article 1644 of the Civil Code, prescribes
within the term of one (1) year, counted from the date it came to the
knowledge of the offended party.
If a criminal or administrative action is started opportunely for
the facts foreseen in the above paragraph, the prescription of the
civil action shall be counted from the execution of the criminal
judgment or the administrative regulation, as the case may be.
21
wrongful death claim. Appellants do not contend that Gloria legally
adopted Carla or Guillermo.6
AAn action to recover damages [under the wrongful death statute] is for the
exclusive benefit of the surviving spouse, children, and parents of the deceased.@
Tex. Civ. Prac. & Rem. Code Ann. ' 71.004(a) (West 2005). In Goss v. Franz,
the Amarillo court of appeals held that an alleged equitably-adopted child was not
entitled to bring a wrongful death action. See 287 S.W.2d 289, 290 (Tex. Civ.
App.CAmarillo 1956, writ ref=d). And in Robinson v. Chiarello, this court held that
the appellants, who were Aneither the natural parents nor legal adoptive parents@
of the deceased, were barred as a matter of law from recovery under the wrongful
death statute. 806 S.W.2d 304, 310B11 (Tex. App.CFort Worth 1991, writ
denied).
Appellants argue that the Texas Supreme Court Ahas not yet ruled on
whether an equitably adopted child has standing to bring a claim under@ the
6
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, disregarding
evidence contrary to the nonmovant unless reasonable jurors could not, indulging
every reasonable inference and resolving any doubts in the nonmovant=s favor.
Id.; 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who
conclusively negates at least one essential element of a cause of action is
entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Tex. R. Civ.
P. 166a(b), (c).
22
Wrongful Death Act, and they ask us to revisit our holding in Robinson. See id.
at 310B11. We disagree with Appellants= contention that the supreme court has
not yet addressed this issue, and we decline to accept Appellants= invitation to
revisit precedent.
Goss, decided by the Amarillo Court of Appeals in 1956, is a Awrit refused@
case. See 287 S.W.2d at 290. AWrit refused@ cases decided after 1927 have
A>equal precedential value with the Texas Supreme Court=s own opinions.=@
Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 754 n.52 (Tex. 2006) (quoting
The Greenbook: Texas Rules of Form (Tex. Law Review Ass‘n, 10th ed. 2005));
see also Yancy v. United Surgical Partners Int=l, Inc., 236 S.W.3d 778, 786 n.6
(Tex. 2007) (recognizing Awrit refused@ case Ahas the weight of our own
precedent@). Thus, by refusing the writ in Goss, the supreme court essentially
addressed the very issue Appellants present in this appeal. Therefore, Goss=s
holding that an equitably-adopted child may not bring a wrongful death claim is
binding precedent that we as an intermediate appellate court are obligated to
follow. See Lubbock Cnty., Tex. v. Trammel=s Lubbock Bail Bonds, 80 S.W.3d
580, 585 (Tex. 2002) (AIt is not the function of a court of appeals to abrogate or
modify established precedent.@). Because binding precedent holds contrary to
Appellants= contention that Carla and Guillermo should have been permitted to
23
bring wrongful death claims as Gloria=s equitably-adopted children, we overrule
Appellants= sixth issue.
B. Survival Claims on Behalf of Gloria=s Estate
In its third issue, Bell contends that the representatives of Gloria=s estate
lacked capacity to bring a survival claim on behalf of the estate and that the
survival claim is barred by the statute of limitations. Appellants respond that Bell
failed to preserve its capacity challenge by not objecting to the jury charge and
that the survival claim is not time-barred because Carla=s post-limitations
appointment as administratrix of Gloria=s estate related back to Appellants=
pre-limitations original petition.
1. Applicable Facts
Appellants filed this lawsuit on January 25, 2002, and Carla alleged in the
original petition that she was a legal representative of Gloria=s estate.7 Bell filed
a motion for summary judgment in April 2006, contending that the survival claim
brought on behalf of Gloria=s estate should be dismissed because Carla did not
7
Guillermo also alleged in the original petition that he was a legal
representative of Gloria=s estate, but neither Bell nor Appellants address
Guillermo=s capacity to represent Gloria=s estate. Thus, we do not address
whether Guillermo was a legal representative of Gloria=s estate or the timeliness
of any claim Guillermo asserted on behalf of Gloria=s estate.
24
have standing to assert it. The trial court initially took the issue under
advisement but granted the motion for summary judgment after Bell filed a motion
Are-urging@ summary judgment on the survival claim. On August 8, 2007,
Appellants filed a motion for reconsideration, and Carla filed an application in
Tarrant County Probate Court to be appointed as the administrator of Gloria=s
estate. And on August 10, 2007, Appellants filed an amended petition that
alleged Carla was a representative of Gloria=s estate and that added Angela
Lassen as a plaintiff as legal and personal representative of Gloria=s estate. On
August 19, 2007, the trial court granted Appellants= motion to reconsider the
dismissal of the survival claim. On September 24, 2007, a week after the jury=s
verdict but before the trial court signed the judgment in this case, the Tarrant
County Probate Court appointed Carla as administratrix of Gloria=s estate.
2. Challenge to Capacity Not Preserved
Citing Bossier Chrysler Dodge II, Inc. v. Rauschenberg, Appellants argue
that Bell did not preserve its challenge to the capacity of an estate representative
because Bell did not object on capacity grounds to the jury charge questions
concerning Gloria=s estate. 8 See 201 S.W.3d 787, 798B99 (Tex. App.CWaco
8
The jury charge asked the jury to determine whether the negligence, if
any, of Bell, Captain Damian, Captain Garay, or Gloria caused Gloria=s injuries
and the sum of money that Awould have fairly and reasonably compensated
Gloria Gasperi@ for pain and mental anguish. The jury charge does not contain a
question, definition, or instruction concerning the capacity of any person to
25
2006, pet. granted), rev=d in part on other grounds, 238 S.W.3d 376 (Tex. 2007).
Bell does not dispute that it failed to object to the charge on capacity grounds but
contends that capacity was a question of law that it preserved through its motion
for judgment notwithstanding the verdict (JNOV). 9 Thus, we must determine
whether Bell=s challenge to capacity should have been raised through an
objection to the jury charge or if it could be timely asserted for the first time in a
post-verdict motion such as a motion for JNOV.
To preserve a no evidence or matter of law point for appeal, a party must
raise the complaint through a motion for directed verdict, a motion for JNOV, an
objection to the submission of the question to the jury, a motion to disregard the
jury=s answer to a vital fact question, or a motion for new trial. See United Parcel
Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.CHouston [14th Dist.]
2000, pet. denied) (citing Cecil v. Smith, 804 S.W.2d 509, 510B11 (Tex.1991)).
But many legal rulings require timely objections before submission to the jury to
preserve error for appeal. See id. at 916B17 (listing examples). And unlike
standing, a challenge to a party=s capacity can be waived if not properly
challenged in the trial court. See, e.g., Austin Nursing Ctr., Inc. v. Lovato, 171
represent Gloria=s estate.
9
Bell did object to the damages question assuming capacity but stated only
that the survival claim Ais barred by the Statute of Limitations, based on the late
filing by Angela Lassen as the representative of the estate of Gloria Gasperi.@
Bell did not object to Carla or Angela=s capacity to represent Gloria=s estate.
26
S.W.3d 845, 849 (Tex. 2005) (A[A] challenge to a party=s capacity must be raised
by a verified pleading in the trial court.@).
In Osterberg v. Peca, the supreme court stated that Aif the trial court has >to
resolve a legal issue before the jury could properly perform its fact-finding role,
. . . a party must lodge an objection in time for the trial court to make an
appropriate ruling without having to order a new trial.=@ 12 S.W.3d 31, 55 (Tex.
2000) (quoting Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999),
and holding parties failed to preserve argument that they substantially complied
with election code section 254.124 because they did not object to the jury
charge). Relying in part on Osterberg, the court in Bossier Chrysler Dodge
explained a defendant=s obligations to preserve error when challenging the
plaintiff=s capacity:
[I]f a verified denial is filed, the issue of the plaintiff=s capacity to sue
is controverted, and the plaintiff bears the burden of proving at trial
that he is entitled to recover in the capacity in which he has filed suit.
As the party with the burden of proof then, it is incumbent upon the
plaintiff to obtain a jury finding on this particular issue.
If, however, the trial court submits a question assuming the
capacity originally pleaded . . . and the defendant does not object to
the question, then the defendant is bound by that charge on appeal.
Conversely, if the defendant does object, then the defendant will
either obtain the sought-after jury finding or have an adverse ruling
which can be reviewed on appeal.
201 S.W.3d at 798 (citing Osterberg, 12 S.W.3d at 55 and O=Connor v. Miller,
127 S.W.3d 249, 254 (Tex. App.CWaco 2003, pet. denied)). The Bossier
27
Chrysler Dodge court held that although the defendant properly controverted the
plaintiff=s capacity through a verified denial, the defendant did not preserve its
capacity argument because it did not object to the jury charge. Id. at 798–99.
And even though the defendant challenged the plaintiff=s capacity in a motion for
new trial, the court held that the challenge to the plaintiff=s capacity through the
motion for new trial Awas not made in a timely fashion.@ Id. at 798.
Here, the jury charge included questions that assumed the capacity of the
representative of Gloria=s estate, and Bell did not object to the absence of any
questions, definitions, or instructions on the issue of capacity. 10 Had Bell
objected to the charge on capacity grounds, the trial court might have chosen to
submit a question, definition, or instruction to the jury concerning capacity, thus
permitting the jury to perform its fact-finding role on the controverted issue of
capacity. See Osterberg, 12 S.W.3d at 55; Clark v. Trailways, Inc., 774 S.W.2d
644, 647 (Tex. 1989) (ABy failing to object . . . parties . . . effectively deny a trial
court the opportunity to review and correct a prior finding.@). By not objecting,
Bell deprived the trial court of an opportunity to correct the alleged error relating
to capacity. Thus, we hold that Bell failed to preserve for appellate review its
10
In fact, although Bell submitted proposed questions, definitions, and
instructions to the trial court, Bell=s proposed questions, definitions, and
instructions did not include any proposed questions, definitions, or instructions
concerning the capacity of a representative of Gloria=s estate.
28
challenge to the capacity of the representatives of Gloria=s estate. We overrule
this part of Bell=s third issue.
3. Survival Claim Not Barred by Statute of Limitations
In the remainder of its third issue, Bell contends that the survival claim
asserted on behalf of Gloria=s estate is barred by the statute of limitations.
Specifically, Bell contends that Carla=s appointment as estate representative did
not relate back to the original petition and that Angela did not join the lawsuit until
seven years after the accident, meaning all claims on behalf of Gloria=s estate are
time-barred. Appellants respond that the claims on behalf of Gloria=s estate are
timely because Carla=s post-limitations appointment as administratrix of Gloria=s
estate related back to the pre-limitations original petition.
In Lovato, the supreme court held that when a plaintiff=s timely-filed original
petition alleges her representative status to bring a survival claim and she
acquires capacity to maintain the survival claim after the expiration of the statute
of limitations, the Apost-limitations capacity cures her pre-limitations lack thereof.@
171 S.W.3d at 852B53. The court stated that A[g]enerally, cases involving
post-limitations representative capacity involve an amended pleading alleging
that capacity for the first time,@ but said that Lovato=s Acase is somewhat unusual,
however, because Lovato has alleged representative status on behalf of the
estate in every petition filed with the trial court.@ Id. at 852 (emphasis in original).
29
The court noted that Lovato=s original assertion of representative status, Athough
apparently untrue, asserted that Lovato was bringing suit in her capacity as the
estate=s representative.@ Id. Deferring to the trial court on the issue of the
reasonable inquiry made before filing the original petition, the court stated that
A[t]he estate commenced the suit before limitations expired@ and that ALovato
cured the defect in her capacity before the case was dismissed.@ Id. at 853.
Therefore, the post-limitations acquisition of capacity cured the pre-limitations
lack of capacity, and the statute of limitations did not bar the survival claim. Id.
Bell argues that Lovato is distinguishable because Lovato was actually an
heir of the estate at the time of filing the original petition. We disagree. The
supreme court specifically noted that Lovato=s status as an heir of her mother=s
estate was in dispute. Id. at 848, 851. And the same day the supreme court
decided Lovato, it held in Lorentz v. Dunn that the survival claim was not
time-barred because the plaintiff, who was not an heir and did not have capacity
to represent the estate at the time of filing the original petition, cured her
pre-limitations lack of capacity through her post-limitations appointment as
administrator of the estate. 11 171 S.W.3d 854, 856 (Tex. 2005) (relying on
Lovato, 171 S.W.3d at 850). Thus, we do not agree that Carla=s alleged lack of
11
Lorentz conceded in the court of appeals that she was not an heir of the
estate. See Lorentz v. Dunn, 112 S.W.3d 176, 179 (Tex. App.CFort Worth 2003,
pet. granted), rev=d, 171 S.W.3d 845 (Tex. 2005) (AAppellant further concedes
30
status as an heir of Gloria=s estate distinguishes Lovato from the present case.
See Lorentz, 171 S.W.3d at 856; Lovato, 171 S.W.3d at 850.
We also disagree with Bell=s assertion that Lovato is distinguishable
because Carla Adid not show due diligence in waiting five years to attempt to gain
capacity@ while Lovato Aapplied to become administrator just two months after
filing the survival claim and within the statute of limitations, so the court held that
her change of status was applied for and completed within a reasonable time.@
[Emphasis added.] There is no holding in Lovato that Lovato=s appointment as
administrator was Acompleted within a reasonable time.@ Instead, the supreme
court stated, AIf, as we have held, a plaintiff=s amended pleading alleging
representative capacity satisfies the relation-back requirements, an original
petition that alleges the correct capacity should suffice for limitations purposes,
provided that capacity, if challenged, is established within a reasonable time.@
Lovato, 171 S.W.3d at 853. And the footnote to that sentence states, AThe
burden is on the defendant to challenge capacity via verified plea, and the trial
court should abate the case and give the plaintiff a reasonable time to cure any
defect.@ Id. at 853 n.7 (emphasis added). Thus, the supreme court=s reference
to Aa reasonable time@ relates to the proper procedure following a timely plea in
abatement and does not state that a plaintiff=s ability to cure its pre-limitations
that she did not qualify as an heir to the estate.@).
31
lack of capacity is contingent upon seeking capacity within a reasonable time of
filing the original petition. 12 See id. at 853 & n.7. Indeed, Lovato was not
appointed administrator until eighteen months after the expiration of the statute of
limitations. Id. at 847, 852. Bell=s attempt to distinguish Lovato is unpersuasive.
Bell also relies on Covington v. Sisters of Charity of the Incarnate Word.
See 179 S.W.3d 583 (Tex. App.CAmarillo 2005, pet. denied). There, the
decedent=s daughter, Patricia Covington, was appointed administrator of the
estate. Id. at 584. Later, and within the statute of limitations, the decedent=s
sister, Elizabeth Roberts, filed a medical malpractice claim. Id. After the
defendants challenged Roberts=s standing and capacity to act on behalf of her
12
In this regard, we note that although Bell had the obligation to secure a
jury finding on its limitations defense, Bell did not submit a proposed jury question
inquiring whether a representative of Gloria=s estate sought appointment as
administrator within a reasonable time. See Woods v. William M. Mercer, Inc.,
769 S.W.2d 515, 517 (Tex. 1988) (AThe statute of limitations is an affirmative
defense[, and t]he defendant thus bears the initial burden to plead, prove, and
secure findings to sustain its plea of limitations.@) (citing Tex. R. Civ. P. 94 and
Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 99 (Tex. Civ.
App.CAmarillo 1971, writ ref=d n.r.e.). Thus, to the extent Bell contends that the
survival claim is barred by the statute of limitations because an estate
representative was not appointed administrator within a reasonable time, we
overrule that portion of Bell=s third issue because Bell did not preserve the
argument for appellate review. See Tex. R. Civ. P. 278 (AFailure to submit a
question shall not be deemed a ground for reversal of the judgment, unless its
submission, in substantially correct wording, has been requested in writing and
tendered by the party complaining of the judgment.@); Tex. R. App. P. 33.1(a).
Because the issue has not been preserved, we express no opinion as to whether
an estate representative must acquire capacity to represent the estate within a
reasonable time.
32
sister=s estate, Roberts filed an amended petition that added Covington as a
plaintiff, alleging that Covington was the administrator of the estate. Id. at 585.
Affirming the trial court=s summary judgment in favor of the defendants, the
Covington court distinguished Lovato because Roberts was not an heir or
personal representative of the estate and never pleaded or contended that she
was an heir or personal representative of the estate. Id. at 587. The court
further noted that the relation-back statute Adoes not directly address the filing of
a subsequent pleading that adds a new plaintiff@ and that A[o]rdinarily, an
amended pleading adding a new party does not relate back to the original
pleading.@ Id. at 588; see Tex. Civ. Prac. & Rem. Code Ann. ' 16.068 (West
2005). The court held that because Covington was the administrator of the
estate, Roberts did not have the capacity to bring a survival claim on behalf of the
estate, and the post-limitations petition that added Covington as a party for the
first time did not relate back to Roberts=s pre-limitations petition. Covington, 179
S.W.3d at 587B88.
Unlike Covington, Carla filed this lawsuit within the limitations period,
alleged that she was a representative of Gloria=s estate, and subsequently
acquired capacity to prosecute survival claims on behalf of Gloria=s estate. 13
13
As discussed above, Bell failed to preserve the issue of whether Carla in
fact had capacity to represent Gloria=s estate by failing to object to the jury charge
question assuming capacity.
33
Thus, Carla=s post-limitations acquisition of capacity cured her alleged
pre-limitations lack of capacity, and the survival claim on behalf of Gloria=s estate
is not barred by the statute of limitations. See Lorentz, 171 S.W.3d at 856;
Lovato, 171 S.W.3d at 852B53.14 And because Carla=s post-limitations capacity
cured her alleged pre-limitations lack of capacity, we need not decide whether
Angela=s intervention as a plaintiff in August 2007 related back to Carla=s original
petition or whether Carla had pre-limitations capacity to bring the survival claim
as Gloria=s alleged equitably-adopted daughter. See Tex. R. App. P. 47.1
(requiring appellate court to address Aevery issue raised and necessary to final
disposition of the appeal@). We overrule the remainder of Bell=s third issue.
VI. Design Defects
Bell contends in its second, fourth, and fifth issues that, because
Appellants= expert witnesses lacked necessary qualifications and their testimony
was unreliable, conclusory, or speculative, there is no evidence to support the
14
Bell also cites this court=s opinion in McAdams v. Capitol Products Corp.,
810 S.W.2d 290 (Tex. App.––Fort Worth 1991, writ denied) (op. on reh=g) for the
proposition that the survival claims are time-barred because Carla=s acquisition of
capacity did not relate back to her pre-limitations lack of capacity. McAdams
was decided before Lorentz and Lovato and reached a contrary result. See id. at
293. And in Lorentz, the supreme court reversed this court=s opinion that relied
on McAdams as authority. See Lorentz, 171 S.W.3d at 854–56; Lorentz, 112
S.W.3d at 179. Because we are unable to distinguish McAdams from Lorentz
and Lovato, we believe McAdams was implicitly overruled by Lorentz and Lovato.
Compare Lorentz, 171 S.W.3d at 854–56, and Lovato, 171 S.W.3d at 846–47,
852–53 with McAdams, 810 S.W.2d at 291, 293.
34
jury=s design defect findings.15 Specifically, Bell argues that there is no evidence
that the helicopter windshield or door mounts were defectively designed, that
there is no evidence that safer alternative designs were feasible for the
windshield or door mounts, and that there is Ano evidence that [Appellants=]
proposed alternative restraint system was available for use on civilian helicopters
and no evidence that it would have prevented Gloria Gasperi=s injuries.@
A. Applicable Law
To recover on their products liability claim alleging a design defect,
Appellants were required to prove by a preponderance of the evidence that A(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.@ Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 311 (Tex. 2009); see Hernandez v. Tokai Corp., 2 S.W.3d 251,
255–56 (Tex. 1999); Burry, 203 S.W.3d at 529; see also Tex. Civ. Prac. & Rem.
Code Ann. ' 82.005(a) (West 2011). A Asafer alternative design@ is:
a product design other than the one actually used that in reasonable
probability:
15
The trial court submitted a single, broad-form design defect question to
the jury without differentiating between design defects in the helicopter=s
windshield, door mounts, or restraint system.
35
(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).
B. Expert Testimony and Standard of Review
If an expert=s testimony would assist the factfinder in understanding the
evidence or determining a fact issue, that expert may testify on scientific,
technical, or other specialized subjects. Tex. R. Evid. 702; Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 578 (Tex. 2006). Under Rule 702, the proponent of the
expert=s testimony has the burden to establish that the expert is qualified to
render an opinion on the subject matter. Tex. R. Evid. 702; E.I. duPont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Whether a
witness is qualified is a matter of judicial discretion, and the trial court=s
determination on that issue will not be disturbed on appeal absent a clear abuse
of that discretion. Robinson, 923 S.W.2d at 558; see Broders v. Heise, 924
S.W.2d 148, 151 (Tex. 1996). A trial court does not abuse its discretion merely
because a reviewing court in the same circumstances would have ruled
differently. Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). The
36
trial court abuses its discretion if its decision was arbitrary or unreasonable
without reference to guiding rules and principles. Downer, 701 S.W.2d at
241B42.
A[E]ach material part of an expert=s theory must be reliable.@ Whirlpool
Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009). When expert testimony is
involved, courts are to Arigorously examine@ both the validity of the facts and
assumptions on which the testimony is based and Athe manner in which the
principles and methodologies are applied by the expert to reach the conclusions.@
Id. (citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002)). In
doing so, we consider the expert=s experience and the factors set forth by the
supreme court in Robinson. Id. at 638 (citing Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998)); see Robinson, 923 S.W.2d at
557. 16 A[I]n very few cases will the evidence be such that the trial court=s
reliability determination can properly be based only on the experience of a
qualified expert to the exclusion of factors such as those set out in Robinson.@
16
The Robinson factors are (1) the extent to which the theory has been or
can be tested, (2) the extent to which the technique relies upon the subjective
interpretation of the expert, (3) whether the theory has been subjected to peer
review or publication, (4) the technique=s potential rate of error, (5) whether the
underlying theory or technique has been generally accepted as valid by the
relevant scientific community, and (6) the non-judicial uses which have been
made of the theory or technique. 923 S.W.2d at 557.
37
Whirlpool, 298 S.W.3d at 638 (citing Mack Trucks, 206 S.W.3d at 579 and
Gammill, 972 S.W.2d at 726).
Although a trial court=s ruling on the reliability of an expert=s opinion
testimony is generally reviewed for an abuse of discretion, a party may assert on
appeal, as Bell does in this case, that the unreliability of an expert=s opinion
makes it legally insufficient to support the verdict. Id. A[I]n a no-evidence
review[,] we independently consider whether the evidence at trial would enable
reasonable and fair-minded jurors to reach the verdict.@ Id. (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). This review Aencompasses the
entire record, including contrary evidence tending to show the expert opinion is
incompetent or unreliable.@ Id.; see also Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797, 804 (Tex. 2006) (A[W]e may consider the testimony of the[]
opposing experts because >an appellate court conducting a no-evidence review
cannot consider only an expert=s bare opinion, but must also consider contrary
evidence showing it has no scientific basis.=@) (quoting City of Keller, 168 S.W.3d
at 813).
C. Helicopter Windshield
Bell argues in part of its second issue that there is no evidence of a safer
alternative design for the helicopter windshield because the opinion testimony by
Appellants= expert, Billy Hinds, was insufficient as a matter of law. Specifically,
38
Bell argues that Hinds lacked the necessary qualifications to testify about safer
alternative designs because he has no experience designing helicopter structures
and only limited experience with windshields on much larger helicopters, that his
testimony is not based on sound engineering principles, and that his testimony is
conclusory and speculative.
1. Preservation of Error
Appellants argue that Bell waived its challenge to the reliability of Hinds=s
testimony. ATo preserve a complaint that an expert=s testimony is unreliable, a
party must object to the testimony before trial or when it is offered.@
Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); see
Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Bell filed a
pretrial motion to strike Hinds=s testimony that the trial court denied. In the
pretrial motion, Bell invoked the Robinson factors and the Gammill analytical gap
standard and argued that Hinds=s testimony Ais inherently unreliable and mere
speculation.@ Bell=s pretrial motion to strike Hinds=s testimony preserved its
challenge to the reliability of Hinds=s testimony. See Kraft, 77 S.W.3d at 807;
Ellis, 971 S.W.2d at 409; see also City of Sugar Land v. Home & Hearth
Sugarland, L.P., 215 S.W.3d 503, 511 n.4 (Tex. App.CEastland 2007, pet.
denied) (holding pretrial motion to exclude preserved appellate complaint
concerning reliability of expert testimony). Further, Bell objected at trial to
39
Hinds=s qualifications to testify about the structure of the Bell 407. Finally, to the
extent Bell contends that Hinds=s testimony is speculative or conclusory on its
face, no trial objection was required. See Coastal Transp. Co., v. Crown Cent.
Petrol. Corp., 136 S.W.3d 227, 233 (Tex. 2004). We therefore hold that Bell
preserved its challenges to Hinds=s qualifications and the reliability of his
testimony.
2. Hinds=s Testimony
Hinds is an expert in bird-impact transparency design for aircraft. He has
extensive experience designing transparencies for airplanes, but he has no
experience with light helicopters and limited experience with helicopters
generally. Specifically, Hinds has not been trained and has not performed work
on the structural design of helicopters, has never designed how the structural
frame of a helicopter (or any other aircraft) would accept a windshield or frame,
has only designed transparencies for two large helicopters (the S-92 and the
RAH-66), and has not done any work with light helicopters similar to the Bell 407.
a. Materials
Hinds testified that the as-cast acrylic used for the windshield in the Bell
407 was unreasonably dangerous and defectively designed because it was not
bird-impact resistant. He also testified that stretched acrylic and polycarbonate
are safer materials and that the technology existed in 1997 to properly mate (or
40
attach) a 0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield to the
structure of the helicopter in order to resist an impact with a bird.
b. AMating@ the Windshield to the Helicopter
Hinds testified that the mounting structure of the Bell 407 would need to be
modified in order to mate a stretched acrylic or polycarbonate windshield to the
helicopter and make it bird resistant. Concerning the modifications necessary for
a 0.14 inch stretched acrylic windshield, Hinds testified that A[s]tretched acrylic
has basically the same structure characteristics as the as-cast acrylic, and there
probably wouldn=t have had to be much change to the structure at all because of
that.@ For a polycarbonate windshield, Hinds averred that because of the
deflection in the polycarbonate windshield following a bird-strike, the portion of
the helicopter frame that overlaps the windshield would have to be extended
approximately 1.5 inches to keep the windshield retained in the structure. But
Hinds acknowledged that he did not know if the helicopter structure would
support a polycarbonate windshield in the event of a bird strike. He testified that
the 1.5 inch change to the mating structure is an Aapproximation,@ that it is his
Ainitial suggestion,@ that he Awasn=t designing a window for Bell Helicopter,@ and
that Awithout actually bird testing it and seeing how the edges perform in the
actual bird testing, you don=t really know for sure if the design is right.@
3. Legal Sufficiency of Hinds=s Opinion Testimony
41
Crucial to Hinds=s safer alternative design opinions is his suggestion that
either the 0.14 inch stretched acrylic or the 0.1 inch polycarbonate windshield
could be successfully mated to the Bell 407Cand retained to the helicopter in the
event of a bird strikeCby adding approximately 1.5 inches to the bonding area
around the window frame. Two of Appellants= other experts, Anthony Bosik and
John Raffo, agreed that an alternative design is not safer if it detaches from the
helicopter following an impact, and Hinds agreed that it does not matter what
material is used for the windshield if it does not prevent a bird from incapacitating
the pilot. In other words, neither the stretched acrylic nor the polycarbonate
design is safer than the as-cast acrylic design if they dislodge from the helicopter
on impact with a bird. See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(1)
(providing that alternative design must have Aprevented or significantly reduced
the risk@ of the injury). Hinds agreed that in the event of a bird strike, there must
be sufficient retention in the area where the windshield is bonded to the frame so
that the bonding area is not overloaded by the deflection of the windshield caused
by the impact. But Hinds never explained why his proposed addition of
approximately 1.5 inches to the mating structure would be sufficient to retain a
0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield on the helicopter
in the event of a bird strike.
42
Concerning the frame alterations necessary to accommodate a 0.14 inch
stretched acrylic windshield, Hinds testified that Athere probably wouldn=t have
had to be much change to the structure,@ but he never explained the basis of his
opinion. Other than saying that A[s]tretched acrylic has basically the same
structure characteristics as the as-cast acrylic,@ Hinds did not say what, if any,
structural changes are necessary, and if no changes are needed, he did not
explain why none are needed. For a 0.1 inch polycarbonate windshield, Hinds
testified that the overlap for the bonding area would need to be extended by
approximately 1.5 inches because of the deflection rate of the polycarbonate, but
he again failed to explain the basis of his opinion. For example, Hinds did not
conduct or cite to any publications, engineering studies, or other analyses of the
rigidity or deflection rates of a 0.14 inch stretched acrylic or 0.1 inch
polycarbonate windshield as compared to the rigidity or deflection rates of the
as-cast acrylic in the Bell 407 that support his opinion.
AExpert opinions must be supported by facts in evidence, not conjecture.@
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (citing Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499B500 (Tex. 1995)). An expert=s
simple ipse dixit is insufficient to establish a matter; rather, the expert must
explain the basis of his statements to link his conclusions to the facts. See City
of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v.
43
Arce, 997 S.W.2d 229, 235 (Tex. 1999)); Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999). A[I]f no basis for the opinion is offered, or the basis offered provides
no support, the opinion is merely a conclusory statement and cannot be
considered probative evidence.@ Pollock, 284 S.W.3d at 818; cf. Burry, 203
S.W.3d at 534B35 (holding that expert sufficiently explained how the proposed
alternative safer design would function).
Assuming Hinds was qualified as an expert to testify regarding an
alternative safer helicopter windshield design absent any training or experience in
helicopter design, his testimony concerning the necessary changes to mate a
0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield to the Bell 407
and resist a bird impact is conclusory, speculative, and no evidence that a 0.14
inch stretched acrylic or 0.1 inch polycarbonate windshield is a safer alternative
design than the as-cast acrylic windshield on the Bell 407.17 See Tex. Civ. Prac.
& Rem. Code Ann. ' 82.005(b); Pollock, 284 S.W.3d at 818; Earle, 998 S.W.2d at
890.
The conclusory and speculative nature of Hinds=s testimony is illustrated by
the testimony of other experts in the case and other parts of Hinds=s testimony.
See Whirlpool, 298 S.W.3d at 640B42 (considering evidence rebutting expert=s
17
Hinds acknowledged that he had only twelve weeks of training in
structural design of aircraft and no training or experience in helicopter structural
design.
44
opinion as evidence that Ahighlights the extent to which [the expert=s] theory was
subject to testing and examining for reliability@); Cooper Tire, 204 S.W.3d at
803B04 (considering testimony of opposing experts when reviewing scientific
basis for expert=s testimony); Kraft, 77 S.W.3d at 806B07 (considering expert=s
testimony during voir dire in analyzing reliability of the expert=s opinion). All
engineering experts who testified, even Hinds, agreed that designing the entire
helicopter structure to withstand the load of an impact is a critical factor in
designing a bird-resistant windshield.
Hinds acknowledged that whether his proposed 0.1 inch monolithic,
polycarbonate windshield would work would require looking at how the whole
frame fits with the supporting structure. Appellants= expert Bosik testified that
designing the entire helicopter structure to withstand the load of an impact is a
critical issue and that proving whether or not a bird will penetrate the material is
only one of several steps in proving the existence of a safer alternative design.
Appellants= expert Raffo, manager of a windshield manufacturer for all types of
aircraft (including helicopters for Bell in the past), agreed that a safer alternative
design of a windshield would require a complete structural design that would
consider the structure of the helicopter because the force that is not taken up in
the deflection of the windshield on impact will transfer to the structure of the
helicopter.
45
In addition, Bell expert Warren Wandel, an accident investigator formerly
with the National Transportation Safety Board, testified that of all civilian
helicopters in the world, ninety-five percent are Part 27 helicopters (or the foreign
equivalent) similar to the Bell 407; that Part 27 helicopters are popular and fit a
certain niche because of their size, speed, weight, operating costs, and number
of passengers; and that they are used extensively by law enforcement, pipeline
and power line patrol, offshore support of the petroleum industry, and television
and radio stations. 18 Bell structural engineer Steven Webster testified that
neither the materials nor the structure of light helicopters like the Bell 407 are
designed for bird-impact resistance, polycarbonate is not synonymous with
bird-impact resistance, and many efforts to use it over the years have been
unsuccessful. Webster further testified that the helicopter structure would have
to be changed to withstand an impact of the magnitude that occurred here.
Finally, Bell structural engineer Alan Allman explained that a 3.5 pound bird
striking a helicopter at 120 knots generates 2230 foot-pounds of force and
reiterated that a polycarbonate windshield is not the same as a bird-resistant
windshield. He explained that the windshield is only one part of the system and
agreed that even assuming the windshield material would resist the impact, the
Amajor engineering portion@ in designing a bird-resistant helicopter is building the
18
Other evidence estimated there are 1,000 Bell 407‘s in use in the United
46
entire structure of the helicopter around the bird-resistant transparency so that it
will Awithstand the load@ created by the impact. Designing the helicopter to resist
the 2230 foot-pounds of force would require additional weight to be added to the
structure in the front and the rear, that the additional weight will require a larger
engine with more horse-power, and that Aby the time you build that entire
structure[,] you now have a [Bell] 430 helicopter.@19
Nevertheless, Hinds did not evaluate the impact of his proposal for an
alternate design on the rest of the Bell 407‘s structural design. Although Hinds
agreed that a windshield design must consider how the windshield and its frame
fit with the helicopter=s supporting structure, he admitted that he did not do so in
this case. Indeed, he admitted that he does not have any experience with
helicopter design, and he testified that he only looked at available technology for
the makeup of the windshield and admitted that he could not answer structural
States.
19
The Bell 430 is a medium-weight helicopter with a maximum gross-weight
of 8,400 pounds compared to the maximum gross-weight of 5,500 pounds for the
Bell 407. The Bell 430 is bird resistant, and Allman testified that Bell did not
design the Bell 407 to be bird resistant because doing so A[t]urns [it] into a 430,@
that Bell is Ataking a light helicopter and making it smoother and faster, better for
the performance,@ and that Bell is Anot designing another bird-strike 430.@ See
Brockert v. Wyeth Pharm., Inc., 287 S.W.3d 760, 770 (Tex. App.––Houston [14th
Dist.] 2009, no pet.) (AThe Texas Supreme Court has held that a plaintiff cannot
prove design defect by claiming that [a] defendant should have sold an entirely
different product.@) (citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384B85
(Tex. 1995)).
47
questions about the Bell 407. Hinds also agreed during his voir dire examination
outside the presence of the jury that a bird impact will transfer loads from the
windshield to the structure of the helicopter, but he admitted that he did not
calculate the loads transferred to the frame and did not know what the loads
would do to the frame. Hinds=s failure to analyze the structure of the Bell 407 or
to even calculate the load transferred to the structure following a bird strike is a
significant gap in his analysis, see generally Gammill, 972 S.W.2d at 727, and it
illuminates the conclusory and speculative nature of his testimony that a
stretched acrylic or polycarbonate windshield could be retained to the Bell 407
after a bird strike by adding approximately 1.5 inches to the bonding area.
Other deficiencies in Hinds=s testimony further illustrate the conclusory and
speculative nature of his opinions. Hinds testified on voir dire that the structures
of helicopters and airplanes are very similar, stating that the fundamental design
principles for any aircraft are basically the same; that they must Atake landing and
takeoff loads@; that they must Atake air pressure loads@; that you must Acalculate
the strength of the materials, the joint interfaces[,] and how they react@; that Ayou
have to worry about how these loads are going to take pressure@; and that these
are Abasic engineering principles.@ In Volkswagon of America, Inc. v. Ramirez,
the challenged expert testified his accident reconstruction opinions involved
application of Abasic scientific and engineering principles, but all abiding by the
48
laws of physics,@ but the expert had not read publications or seen studies that
corroborated his opinion, did not conduct or cite any tests to support his theory,
and did not explain how the tests he did conduct supported his conclusions. 159
S.W.3d 897, 905B06 (Tex. 2004). Holding that the expert=s opinion was
unreliable and thus no evidence, the supreme court stated that the expert=s
Areliance on the >laws of physics,= without more, is an insufficient explanation.@
Id. at 906. Here, although Hinds testified that his opinions are based on basic
engineering principles, he never explained how those principles or any tests or
publications supported his opinion that a stretched acrylic or polycarbonate
windshield could be successfully mated to the Bell 407 and make it bird resistant
by adding approximately 1.5 inches to the bonding area.
Hinds=s opinions also differ from those he employs in non-litigation
contexts. Hinds testified that his proposed stretched acrylic or polycarbonate
windshield designs would be bonded to the helicopter, but he admitted that all of
the transparencies his company makes are bolted to the aircraft and that he has
no experience designing transparencies for light helicopters. Thus, Hinds does
not have non-judicial experience with his proposed design or anything similar.
See Robinson, 923 S.W.2d at 557 n.2 (AThat an expert testifies based on
research he has conducted independent of the litigation provides important,
objective proof that the research comports with the dictates of good science.@)
49
(quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)
(op. on remand)). Indeed, all of Hinds=s opinions were developed for the
litigation in this case. Hinds testified that he believes every helicopter is
unreasonably dangerous if it cannot sustain a four-pound bird strike at full
cruising speed but acknowledged that he did not hold that opinion before this
litigation. 20 Moreover, despite his litigation opinions, Hinds testified that his
company delivered a 2.2 pound bird-resistant windshield for the Sikorsky S-92
while this litigation was pending and after he was hired as an expert. Thus, his
opinions have no non-judicial application and differ from those he practices in
non-judicial settings. See id. at 557.
As to relevant testing of his theory, Hinds testified that he has not tested a
0.1 inch monolithic polycarbonate windshield in any aircraft,21 that he does not
know if anyone else has, and that he is not aware of any helicopters in existence
that use a monolithic polycarbonate transparency. An expert is not always
required to do testing to support his opinions, Abut lack of relevant testing to the
20
Hinds further opined that he thinks the entire industry knew that birds
were a serious problem and that the manufacturers of helicopters as well as the
government were negligent in ignoring the danger of bird strikes, but he has
published no papers on the subject nor encouraged the FAA or the industry to
accept his opinions.
21
Hinds testified that he has tested eighth-inch polycarbonate windshields,
but he admitted they are twenty-five percent thicker, are not monolithic, and are
actually much thicker than an eighth-inch considering the other layers.
50
extent it was possible, either by the expert or others, is one factor that points
toward a determination that an expert opinion is unreliable.@ Whirlpool, 298
S.W.3d at 642. Hinds testified that although his theory has not been tested, he
knows that his design will work because he has the necessary knowledge and
experience and because many of the other transparencies he has designed had
not been designed before. But see Ramirez, 159 S.W.3d at 904B06 (holding that
expert=s theory rested on his Asubjective interpretation of the facts@ when he did
not connect his theory to any physical evidence in the case or to any tests or
calculations prepared to substantiate his theory).
Citing General Motors Corp. v. Sanchez, Appellants argue that they
presented legally sufficient evidence of a safer alternative design because Athere
is no requirement that a plaintiff actually design or build or test the alternative.@
See 997 S.W.2d 584, 592 (Tex. 1999).22 But Sanchez is distinguishable. The
Sanchez Court=s statement about testing related to a plaintiff=s burden to show
the existence of a safer alternative design and did not concern the Robinson
factors or their application to the reliability of the expert=s opinion testimony. Id.
at 591B92. Indeed, G.M. failed in that case to preserve its challenge to the
reliability of the expert=s testimony. Id. at 591.
22
The Sanchez court stated, A[T]he plaintiffs did not have to build and test
an automobile transmission to prove a safer alternative design. A design need
only prove >capable of being developed.=@ Id. at 592.
51
Unlike in Sanchez, Bell preserved its challenge to the reliability of Hinds=s
testimony. Further, unlike the expert in Sanchez, Hinds did not disclose any
testing, calculations, engineering analysis, or publications that supported his
opinion that adding approximately 1.5 inches to the bonding area would retain a
0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield to the Bell 407
after a bird strike. 23 The absence of Hinds=s underlying analysis and the
availability of testing Ahighlights the extent to which [Hinds=s] theory was subject
to testing and examining for reliability.@ Whirlpool, 298 S.W.3d at 642.
In summary, Hinds=s testimony does not link his conclusions to the facts of
the case or the analysis, if any, that he performed to determine that either a 0.14
inch stretched acrylic or 0.1 inch polycarbonate windshield could be successfully
mated to the Bell 407 by adding 1.5 inches to the mounting structure. His theory
relies heavily upon his own subjective interpretation, has not been generally
accepted within the relevant aircraft community, does not have any non-judicial
23
Relying on Sanchez and other similar opinions, the dissent asserts that
our holding that Hinds=s testimony is conclusory and speculative is Apremised on
the erroneous premise that Hinds was required to build and to test a prototype
windshield.@ Dissent at 3 n.1. To the contrary, we merely hold that Hinds, as an
expert witness, was required to explain his conclusions and link them to the facts
of the case or the analysis he conducted to support his opinion. We reference
the many other deficiencies in Hinds=s testimony only to illuminate the conclusory
and speculative nature of his testimony that a 0.1 inch polycarbonate or 0.14 inch
stretched acrylic windshield could be successfully mated to a Bell 407Cand make
it resistant to a 3.5 to four pound bird traveling at 120 knotsCby adding 1.5 inches
to the mating structure around the windshield.
52
uses, could have been tested but was not, and differs from what he employs
outside of litigation. See id. at 640B43 (holding expert=s testimony conclusory,
speculative, and not entitled to probative weight after applying Robinson factors);
Coastal Transp. Co., 136 S.W.3d at 231B33 (holding expert=s testimony was too
conclusory to support a judgment). We hold that Hinds=s testimony that either a
stretched acrylic or polycarbonate windshield could be mated to the Bell 407 by
adding 1.5 inches to the helicopter frame is conclusory, speculative, and not
entitled to probative weight. See Whirlpool, 298 S.W.3d at 643. Therefore,
Hinds=s testimony is no evidence of a safer alternative design.
4. Other Evidence of Safer Alternative Design
Having determined that Hinds=s testimony concerning a safer alternative
design is not entitled to probative weight, we must determine whether Appellants
offered other legally sufficient evidence of a safer alternative design.
Appellants argue that they presented sufficient evidence that a monolithic
polycarbonate windshield was feasible at the time of manufacture in 1997
because they offered evidence that Athe Aerospatiale AS-350, which like the Bell
407 is a Part 27 helicopter with a similar windshield design to the Bell 407, was
offered with a monolithic, single-layer polycarbonate windshield in 1977.@ First,
there is no evidence in the record that the monolithic polycarbonate windshield on
the AS-350 was resistant to a 3.5 pound bird strike or would remain attached to
53
the helicopter following a 3.5 pound bird strike. See Tex. Civ. Prac. & Rem.
Code Ann. ' 82.005(b)(1) (providing that alternative design must have Aprevented
or significantly reduced the risk@ of the injury); see also Smith v. Louisville Ladder
Co., 237 F.3d 515, 519B20 (5th Cir. 2001) (applying Texas law and holding safer
alternative design not proven when expert could not say that alternative design
would have prevented the plaintiff=s fall). Moreover, Aerospatiale abandoned the
polycarbonate windshields in the AS-350 because of the polycarbonate=s reaction
to cleaning agents, and current models of the AS-350 have as-cast acrylic
windshields similar to those in the Bell 407. See Tex. Civ. Prac. & Rem. Code
Ann. ' 82.005(b)(2) (providing that safer alternative design must be
technologically feasible). Further, Appellants presented no evidence of the costs
of incorporating the AS-350 design into the Bell 407. See Honda of Am. Mfg.,
Inc. v. Norman, 104 S.W.3d 600, 607 (Tex. App.CHouston [1st Dist.] 2003, pet.
denied). 24 Without evidence concerning the cost of incorporating the AS-350
design into the Bell 407, there is no evidence of the economic feasibility of the
24
The Norman court stated,
While the use of an alternative design by another manufacturer may
establish technological feasibility, . . . as a matter of law, it does not
establish economic feasibility. . . . Evidence of use in the
marketplace alone is not sufficient to establish economic feasibility
under Texas law. To establish economic feasibility, the plaintiff
must introduce proof of the cost of incorporating this technology.
54
AS-350 design. See id.; Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 478 (Tex.
App.CHouston [1st Dist.] 2000, pet. denied); Jaimes v. Fiesta Mart, Inc., 21
S.W.3d 301, 306 (Tex. App.CHouston [1st Dist.] 1999, pet. denied). Thus, the
existence of the AS-350 is no evidence of a safer alternative design for the Bell
407 as it relates to the facts of this case.
Appellants also argue that they presented evidence of feasibility because
Bell currently has a prototype Bell 407 with polycarbonate windshields. But the
prototype Bell 407 was developed after the accident helicopter was manufactured
in 1997, and it has not been tested for bird resistance. Indeed, there was
testimony at trial that, even at the time of trial in September 2007, no helicopter
manufacturers were building Part 27 helicopters like the Bell 407 with
polycarbonate windshields and that no helicopter manufacturers were building
Part 27 helicopters with any kind of bird-resistant or bird-proof windshields.
Without evidence that the prototype helicopter is actually bird resistant, the
existence of a prototype with polycarbonate windshields, first developed after the
accident helicopter was manufactured in 1997, is no evidence of a technologically
feasible safer alternative design at the time of manufacture that would reduce the
Id. (internal citations omitted).
55
risk of injury.25 See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(1); see also
Smith, 237 F.3d at 519B20.
Finally, Appellants point to evidence that Bell produced the bird-resistant
Bell 222 in the 1980‘s because the United Kingdom required all helicopters at the
time to be bird-resistant. However, the Bell 222 was a Part 29 helicopter and
was only resistant to a 2.2 pound bird strike. The Bell 407 is a Part 27
helicopter, and the bird involved in this accident weighed substantially more than
2.2 pounds. Thus, the existence of the Bell 222 is no evidence of a safer
alternative design for the Bell 407.26 See Tex. Civ. Prac. & Rem. Code Ann.
25
Similarly, and as the dissent points out, Bell built two helicopters about
the size of the Bell 407 for the militaryCwith either polycarbonate or stretched
acrylic windshieldsCin 1997 or 1998. See Dissent, at 8–9 n.3. However, there
is no evidence of whether the military helicopters were capable of resisting a 3.5
to four pound bird like the one involved in this case or whether they were resistant
to only a 2.2 pound bird (like all of the other bird-resistant helicopters discussed
at trial). Further, there is no evidence of the thickness of the military helicopter
windshields or of their design (such as monolithic or multi-layer) to determine
whether they are at all comparable to the alternative designs proposed by the
Appellants in this case.
26
The dissent points to the Bell 222, the Bell 609, and the Bell UH-1 as
evidence of a safer alternative design, but none of these helicopters is remotely
comparable to the Bell 407. See Dissent, at 8–9 n.3. The Bell 222 is a 10,000
to 13,000-pound Part 29 helicopter, with a windshield that is Ashaped entirely
different than the 407,‖ that is installed with bolts rather than adhesive, and that
was only resistant to a 2.2 pound bird rather than a bird in excess of 3.5 pounds.
Allan Allman testified that comparing the Bell 430 (the current version of the Bell
222) to the Bell 407 is like Acomparing a grape to an orange.@
The Bell 609 is a tilt-rotor aircraftCboth an airplane and a
helicopterCsimilar to the V-22 Osprey. Its windshield is multi-ply and 0.75 inches
56
' 82.005(b)(2); Smith, 237 F.3d at 519B20; see also Brockert, 287 S.W.3d at 770
(citing Shears, 911 S.W.2d at 384B85).
Absent competent expert testimony as to whether it was feasible in 1997 to
mount a 0.1 inch polycarbonate or 0.14 inch stretched acrylic windshield to a Bell
407 so that the windshield would both resist a 3.5 pound bird and also not
become dislodged from the helicopter, Appellants presented no evidence of a
safer alternative design for the windshield on the Bell 407 that would have
sustained an impact with a 3.5 pound bird and prevented or significantly reduced
the risk of injury to Appellants. We therefore sustain this part of Bell=s second
issue.27
D. Helicopter Door Mounts
thick, including at least one outer ply of 0.1 inch glass and two layers of 0.25 inch
polycarbonate, and it is more than seven times the thickness of the 0.1 inch
polycarbonate design proposed by the Appellants. Similarly, the UH-1 is three
times larger than the 407, its structure is Amade totally different@ than the 407,
and its polycarbonate windshield is 0.25 inches, two and one-half times the
thickness of the polycarbonate design proposed by the Appellants.
Allman testified that these large helicopters are Ain a different category@
and that looking at them as alternative designs Awould be something like taking
the front end off your 250 Ford truck and put[ting] it on a Honda Civic.@ As
discussed above, the Appellants cannot successfully prove the existence of a
safer alternative design by offering evidence that Bell should have built an entirely
different product. See Brockert, 287 S.W.3d at 770 (citing Shears, 911 S.W.2d
at 384B85).
27
We need not address, and express no opinion concerning, the remainder
of Bell=s second issue. See Tex. R. App. P. 47.1.
57
Bell contends in its fifth issue that there is no evidence that the door
mounts on the helicopter were defectively designed or that a safer alternative
design existed because the only evidence Appellants presented was Atextbook
speculation or conjecture.@
Ross, Appellants= accident reconstruction expert, testified that he examined
the wreckage of a Bell 206 and that the Bell 407 is a derivative of the Bell 206.
Ross testified that the wrecked Bell 206 he examined was in about the same
condition as the wrecked Bell 407 in this case, that the sides of the Bell 206 were
made of aluminum, that the sides of the Bell 407 were made of a carbon-fiber
material, that the doors of the Bell 206 did not come off in its crash, but that the
doors of the Bell 407 came off in the instant crash. However, Ross never
testified that the Bell 407 was defectively designed because its sides were made
of carbon-fiber material. Further, although Ross implicitly suggested that the
aluminum construction of the Bell 206 was a safer design, he did not explain why
the aluminum is a safer design, provide any details concerning the crash of the
Bell 206 to explain why the doors remained on that helicopter, or give any reason
the doors of the Bell 407 would have remained on the helicopter had its sides
been constructed of aluminum. Therefore, Ross=s testimony is conclusory and
no evidence that the door mounts on the Bell 407 were defectively designed or
that there was an available safer alternative design. See Coastal Transp. Co.,
58
136 S.W.3d at 231B33 (holding expert=s testimony was too conclusory to support
a judgment).
Appellants incorrectly contend that Bell waived its complaint concerning the
sufficiency of Ross=s testimony. A[W]hen a reliability challenge requires the court
to evaluate the underlying methodology, technique, or foundational data used by
the expert, an objection must be timely made so that the trial court has the
opportunity to conduct this analysis.@ Id. at 233. AHowever, when the challenge
is restricted to the face of the record, for example, when expert testimony is
speculative or conclusory on its face, then a party may challenge the legal
sufficiency of the evidence even in the absence of any objection to its
admissibility.@ Id. Here, Bell=s challenge does not concern Ross=s methodology,
technique, or foundational data. Instead, Bell argues that Ross=s testimony is
conclusory and speculative on its face. No objection was required to preserve
the no evidence issue for appellate review. See id. We sustain Bell=s fifth
issue.
E. Helicopter Restraint System
Bell argues in its fourth issue that the trial court erred by submitting the
design defect claim concerning the helicopter restraint system to the jury because
there is no evidence that Appellants= proposed alternative restraint system was
59
available for use on civil helicopters or that the proposed alternative restraint
system would have prevented or significantly reduced Gloria=s injuries.
1. Commercial Availability
Bell contends that Appellants did not meet their burden of proving that the
MA-16, Appellants= proposed safer alternative design, and its underlying
technology were available for use at the time the Bell 407 was manufactured in
1997 because Appellants= seatbelt expert, William Muzzy, Aundertook no analysis
of whether the design could have passed the rigorous FAA testing and
certification procedure[] so that it could have actually been installed on the
aircraft.@ Bell also argues that Appellants Amade no showing that the MA-16 or
its underlying technology would be approved for use by the State Department@
under the International Trafficking in Arms Regulations (ITAR). However, Bell
cites no authority to support its contentions, and we find none.
Contrary to Bell=s assertion, section 82.005(b) does not require proof that
the proposed safer alternative design would have gained regulatory approval.
See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b). Instead, section 82.005(b)
requires proof that the safer alternative design Awas 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.@ Id. To adopt Bell=s contention that a claimant must prove that the
60
proposed alternative design would have been approved by the relevant regulatory
agencies would be tantamount to adding an additional element to a claimant=s
design defect cause of action, and we decline to do so. See Petco Animal
Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.CAustin 2004, no pet.)
(AAs an intermediate appellate court, we are not free to mold Texas law as we
see fit but must instead follow the precedents of the Texas Supreme Court unless
and until the high court overrules them or the Texas Legislature supersedes them
by statute.@). We therefore overrule this portion of Bell=s fourth issue.
2. Prevent or Significantly Reduce Risk of Injury
Bell also argues that there is no evidence that the MA-16 was a safer
alternative design because Muzzy never explained how the MA-16 would have
prevented or significantly reduced the risk of Gloria=s injuries.
Muzzy testified that the MA-16 was a safer alternative design to the
restraint system in the Bell 407 because the MA-16 has an omni-directional
sensing retractor and the Bell 407=s movements after impact were
omni-directional. Muzzy explained that the MA-16 is a Adual-sensing
omnidirectional retractor@ that incorporates both vehicle sensing and web sensing
technology and that the Bell 407 restraint system had only web sensing
technology. He testified that web sensing locks the seatbelt when the seatbelt is
pulled forward rapidly but that the seatbelt will unlock when the tension on the
61
seatbelt is released. In contrast, vehicle sensing locks the seatbelt when the
helicopter is accelerated in any direction. Muzzy testified that the MA-16 would
have prevented Gloria from moving outside the helicopter because it has
omni-directional dual sensing.
Using the animation of the crash sequence, Muzzy demonstrated each of
the times that Gloria=s restraint would have locked and then unlocked. Muzzy
testified that even though Gloria had her seatbelt on, she was partially ejected
from the helicopter during the crash sequence because the locking and unlocking
in the restraint system allowed the seatbelt to continually extend to the point
where it did not restrain her in her seat or even inside the helicopter. He testified
that the restraint system worked as it was designed but that it should have been
designed so that it would not lock and unlock.
Again using the animation of the crash sequence, Muzzy testified that the
helicopter=s movements during the crash sequence were omni-directional
because A[y]ou have a force down, you have forces laterally and you have
deceleration forces forward. So you have them in all three directions.@ He
averred that Athe lack of an omni-directional vehicle sensing retractor . . . in the
aircraft was the proximate cause of [Gloria] being ejected and [her] subsequent
death.@ Muzzy=s testimony is not conclusory and presented more than a scintilla
of evidence that the proposed safer alternative design would have prevented or
62
significantly reduced the risk of Gloria=s death. See Burry, 203 S.W.3d at
535B36 (holding that expert Asufficiently explained the basis for his testimony@ and
that there was more than a scintilla of evidence of a safer alternative design).
We therefore overrule the remainder of Bell=s fourth issue.
VII. Comparative Responsibility
Appellants contend in their fifth issue that the evidence is legally and
factually insufficient to support the jury=s finding that Captain Damian=s
comparative negligence caused fifty percent of the Appellants= injuries.
A. Standards of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362B63 (1960).
Anything more than a scintilla of evidence is legally sufficient to support the
63
finding. Cont=l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence
offered to prove a vital fact is so weak as to do no more than create a mere
surmise or suspicion of its existence, the evidence is no more than a scintilla and,
in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983). More than a scintilla of evidence exists if the evidence furnishes
some reasonable basis for differing conclusions by reasonable minds about the
existence of a vital fact. Rocor Int=l, Inc. v. Nat=l Union Fire Ins. Co., 77 S.W.3d
253, 262 (Tex. 2002). In determining whether there is legally sufficient evidence
to support the finding under review, we must consider evidence favorable to the
finding if a reasonable factfinder could and disregard evidence contrary to the
finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.
v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller, 168 S.W.3d at 807, 827.
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
evidence supporting the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set aside and a new trial
ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh=g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King=s Estate, 150
64
Tex. 662, 244 S.W.2d 660, 661 (1951). Factual sufficiency issues depend on
who has the burden of proof at trial. See Gooch v. Am. Sling Co., 902 S.W.2d
181, 184 (Tex. App.CFort Worth 1995, no writ). When the party with the burden
of proof appeals from a failure to find, the party must show that the failure to find
is against the great weight and preponderance of the evidence. Cropper v.
Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see Herbert v. Herbert,
754 S.W.2d 141, 144 (Tex. 1988).
B. Analysis
Ross, Appellants= helicopter pilot expert, testified that the helicopter was
flying at 120 knots forward air speed and at 1,500 feet above sea level when
Captain Damian made a five-degree course correction to avoid the flock of birds
sighted in the distance. Ross said that he had no criticisms of the five-degree
course correction because the pilots acknowledged the birds and made a move
to avoid the pack of birds. Ross explained that the five-degree course correction
would have moved the helicopter away from the birds at a distance of
three-and-one-half rotor lengths and that he believed this was sufficient because
the helicopter moved past the flock of birds. 28 Based on Captain Garay=s
28
The jury heard conflicting testimony about the single bird separated from
the flock of birds. For example, Captain Garay acknowledged that he never
mentioned the flock of birds in his written statement to Panamanian authorities,
and Lorenzo testified that he heard the pilots refer to the flock of birds but
admitted that he did not mention the flock of birds during his deposition testimony.
65
testimony, Ross stated that he believed the helicopter moved past the flock of
birds because the bird did not come from the main pack, that it approached the
helicopter from above, and that it approached quickly, giving the pilots only
fractions of a second to try to avoid it. Ross averred that Captains Damian and
Garay were not negligent, that they did all they could to save the helicopter and
its passengers, and that they did not proximately cause the accident.
Ross admitted on cross-examination, however, that Captain Garay=s
written statement to Panamanian investigators twenty days after the accident
mentioned only a single bird and did not mention a flock of birds.29 Ross also
acknowledged that a pilot wants to do all he can to avoid a mid-air collision with a
bird, especially a bird the size of the one that struck the helicopter. He testified
that seeing birds ahead would alert him to think of a potential mid-air collision and
that he would act to avoid a collision. Ross agreed that the pilots could have
turned the helicopter sharply or hovered after seeing the birds thirty to sixty
seconds away at 120 knots. He also agreed that Captain Damian could have
turned the helicopter thirty or forty-five degrees and significantly increased the
helicopter=s distance from the birds, that two ninety-degree turns would have
added less than one minute to the overall flight time, and that there was no
29
Ross also agreed that a hypothetical animation based on Captain Garay=s
written statement would look nothing like the animation that Ross prepared to
explain his opinions to the jury.
66
reason Captain Damian could not have made two ninety-degree turns. Ross
also acknowledged that a vulture can fly up to 900 feet in thirty seconds and that
a five-degree course correction would not alter the helicopter=s course 900 feet.
In addition, Ross agreed that a pilot does not know what a bird will do, so the pilot
should err on the side of caution in attempting to avoid a collision. Moreover, in
response to a hypothetical question, Ross testified that he would place some fault
on the pilots if they saw a hang-glider thirty to sixty seconds away but failed to
avoid the hang-glider after making only a five-degree course correction. Finally,
Ross agreed that a more aggressive evasive action by the pilots in this case
would have avoided the mid-air collision.
The jury also heard testimony from Warren Wandel, Bell=s pilot expert,
concerning comparative negligence by Captain Damian. Wandel testified that
ninety percent of bird strikes occur below 2000 feet, that eighty-three percent of
bird strikes occur below 1500 feet, that flying closer to the ground increases the
chances of a bird strike, and that an important avoidance technique is to fly the
aircraft Aat the highest altitude you can.@ Wandel also listed other considerations
for avoiding bird strikes, including charting flight plans to avoid known bird
concentration areas and reducing speed when operating in areas of bird activity.
He also testified that, even assuming there was a single bird flying away from the
flock of birds, Captain Damian should have made a more drastic course
67
correction after seeing the flock of birds and that doing so would have avoided
the accident. We conclude that the evidence is legally and factually sufficient to
support the jury=s finding that Captain Damian was negligent. See Cent. Ready
Mix Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807, 827;
Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823; King=s Estate, 244 S.W.2d
at 661.
Concerning the jury=s apportionment of fifty percent responsibility to
Captain Damian, the Ajury is given wide latitude in performing its sworn duty to
serve as factfinder in allocating responsibility for an accident pursuant to section
33.003 of the civil practice and remedies code.@ Rosell v. Cent. W. Motor
Stages, Inc., 89 S.W.3d 643, 659 (Tex. App.––Dallas 2002, pet. denied). In
Rosell, despite conflicting evidence, the court affirmed the factual sufficiency of
the evidence supporting the jury=s apportionment of seventy percent responsibility
to the claimant for causing his own injuries when he stopped to help an injured
motorist on the side of the road, moved into the lane of an approaching bus, was
warned of the bus, but did not take evasive action. Id. Similarly, in Hagins v.
E-Z Mart Stores, Inc., a case involving a fatal fall by a construction worker, the
court affirmed the jury=s apportionment of sixty percent responsibility to the
decedent because the evidence demonstrated that it was unsafe to use a
platform while positioned at an angle, that the decedent decided not to attempt to
68
place the platform flush against the wall, and that the decedent knew the hazards
of working above the ground without a safety harness. See 128 S.W.3d 383,
392 (Tex. App.––Texarkana 2004, no pet.). Given the conflicting evidence
presented to the jury, including but not limited to the testimony that the accident
would not have occurred had Captain Damian taken more aggressive evasive
action, we conclude that the evidence is legally and factually sufficient to support
the jury=s apportionment of fifty percent responsibility to Captain Damian. A[I]t is
not the place of this Court to substitute its judgment for that of the jury, even if a
different percentage of allocation could be supported by the evidence.@ Id.
(citing Rosell, 89 S.W.3d at 659B60).
Based on the foregoing, and after reviewing all of the evidence in the light
favorable to the jury=s findings, crediting favorable evidence if a reasonable
factfinder could, and disregarding contrary evidence unless a reasonable
factfinder could not, we hold that there is legally sufficient evidence to support the
jury=s findings that Captain Damian was comparatively negligent and that his
negligence caused fifty percent of Appellants= injuries. See Cent. Ready Mix
Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807, 827.
Likewise, after considering and weighing all of the evidence pertinent to the jury=s
findings, we cannot say that the evidence supporting the jury=s findings is so
weak or contrary to the overwhelming weight of all the evidence that it should be
69
set aside and a new trial ordered. See Pool, 715 S.W.2d at 635; Garza, 395
S.W.2d at 823; King=s Estate, 244 S.W.2d at 661. We therefore overrule
Appellants= fifth issue.
VIII. Mental Anguish Damages
Appellants contend in their fourth issue that the trial court erred by failing to
order a new trial because the damages awarded by the jury are Aso against the
great weight and preponderance of the evidence as to be manifestly unjust.@
Because of our disposition of Bell=s second, fourth, and fifth issues, we address
only the jury=s award of $50,000 in mental anguish damages to Gloria=s estate.
See Tex. R. App. P. 47.1.
Appellate briefs must contain appropriate citations to the record. See Tex.
R. App. P. 38.1(i). And bare assertions of error without proper citation to the
record waive error. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of
error due to inadequate briefing); Devine v. Dallas Cnty., 130 S.W.3d 512,
513–14 (Tex. App.––Dallas 2004, no pet.) (holding that when a party fails to
adequately brief a complaint, he waives the issue on appeal). Although
Appellants devote eight pages of their brief to their contention that the jury=s
damage awards are against the great weight and preponderance of the evidence,
Appellants= brief does not cite any portion of the record to support their assertion
70
that the $50,000 in mental anguish damages awarded to Gloria=s estate are so
against the great weight and preponderance of the evidence to be manifestly
unjust. And although Appellants included the damages awarded to Gloria=s
estate in the recitation of their fourth issue, the remainder of Appellants= briefing
concerning damages never again mentions the $50,000 awarded to Gloria=s
estate for mental anguish. Because Appellants= assertion that the damages
awarded to Gloria=s estate are against the great weight and preponderance of the
evidence is not supported by record references or citation to legal authority, they
have failed to preserve this issue for appellate review. See Tex. R. App. P.
38.1(i); Fredonia State Bank, 881 S.W.2d at 284; Devine, 130 S.W.3d at 513–14.
We overrule Appellants= fourth issue.
IX. Alleged Jury Misconduct
Appellants contend in their first two issues that the trial court erred by
failing to accept juror affidavits for filing, failing to conduct an open hearing
concerning allegations that the jury traded-off answers on the jury charge, and
failing to grant a new trial due to alleged jury misconduct. Appellants argue in
their third issue that if Texas law prohibits inquiry into the alleged jury misconduct
in this case, then the prohibition violates the open-courts provision of the Texas
constitution and the Fifth and Fourteenth Amendments to the United States
Constitution. Bell responds that we should overrule Appellants= first three issues
71
because rule of civil procedure 327(b) and rule of evidence 606(b) prohibit juror
testimony concerning any matter or statement occurring during deliberations
other than matters related to outside influence. See Tex. R. Civ. P. 327(b); Tex.
R. Evid. 606(b).
A. Traded Answers
Rule of civil procedure 327(b) states:
A juror may not testify as to any matter or statement occurring during
the course of the jury=s deliberations or to the effect of anything upon
his or any other juror=s mind or emotions as influencing him to assent
to or dissent from the verdict concerning his mental processes in
connection therewith, except that a juror may testify whether any
outside influence was improperly brought to bear upon any juror.
Nor may his affidavit or evidence of any statement by him concerning
a matter about which he would be precluded from testifying be
received for these purposes.
Tex. R. Civ. P. 327(b). Rule of evidence 606(b) sets forth a virtually identical
prohibition against jury testimony concerning any matter other than outside
influence. Tex. R. Evid. 606(b).
Appellants argue that the trial court should have accepted the juror
affidavits and conducted an open hearing to receive juror testimony because the
jury=s alleged Atrading-off@ of answers was an overt act of the jurors and did not
involve any juror=s mental processes. Appellants also contend that an overt act
is governed by rule 327(a), which permits evidence of jury misconduct, rather
than rule 327(b), which prohibits juror testimony concerning deliberations.
72
Compare Tex. R. Civ. P. 327(a), with Tex. R. Civ. P. 327(b). In Golden Eagle
Archery, Inc. v. Jackson, the supreme court stated:
Most Texas courts considering the question have held that the rules
prevent a juror from testifying that the jury discussed improper
matters during deliberation. We agree. The rules contemplate that
an Aoutside influence@ originates from sources other than the jurors
themselves. Accordingly, here the accounts that some jurors
speculated whether alcohol was involved in the accident and that
Jackson may have received a settlement, or that the jurors traded
answers on two issues, are all juror statements about matters
occurring during their deliberations. They are not evidence of
outside influences.
24 S.W.3d 362, 370 (Tex. 2000) (internal citations omitted) (emphasis added).
Applying Golden Eagle Archery to this case, juror testimony that they
traded answers is not evidence of an outside influence. See id. Thus, civil
procedure rule 327(b) and rule of evidence 606(b) prohibited the trial court from
receiving juror affidavits or other juror testimony concerning alleged traded
answers. See Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b); Golden Eagle
Archery, 24 S.W.3d at 370; see also Ford Motor Co. v. Castillo, 279 S.W.3d 656,
666 (Tex. 2009) (A[D]iscovery involving jurors should ordinarily be limited to facts
and evidence relevant to (1) whether any outside influence was improperly
brought to bear upon any juror, and (2) rebuttal of a claim that a juror was not
qualified to serve.@).
Appellants cite several cases for the proposition that Athe trading of
answers and the cluster answering are of such severity and obvious harm that a
73
new trial must be granted.@ 30 However, each case cited by Appellants was
decided before the effective dates of the current rule of procedure 327(b) and rule
of evidence 606(b). See Robinson Elec. Supply Co. v. Cadillac Cable Corp., 706
S.W.2d 130, 131B32 (Tex. App.––Houston [14th Dist.] 1986, writ ref=d n.r.e.),
overruled on other grounds by, Golden Eagle Archery, 24 S.W.3d at 369 & n.3
(noting effective date of rules and stating, AUnder former Rule 327(b), effective
until April 1, 1984, a juror was permitted to testify as to matters and statements,
or >overt acts=, which occurred during deliberations.@). Therefore, we are bound
by the language of rules 327(b) and 606(b) that prohibits juror testimony
concerning any matter other than outside influence and the supreme court=s
holding in Golden Eagle Archery that alleged trading answers by the jury is not an
outside influence. See Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b); Golden
Eagle Archery, 24 S.W.3d at 370. And we decline to adopt a rule, as suggested
by Appellants, that inquiry into jury deliberations is permissible if there is prima
facie evidence of jury misconduct during deliberations other than an outside
influence. We overrule Appellants= first and second issues.
B. Constitutional Arguments
30
See generally Strange v. Treasure City, 608 S.W.2d 604 (Tex. 1980);
Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (Tex. 1932);
Landreth v. Reed, 570 S.W.2d 486 (Tex. Civ. App.––Texarkana 1978, no writ);
Crawford v. Consol. Underwriters, 323 S.W.2d 657 (Tex. Civ. App.––Beaumont
1959, writ ref=d n.r.e.).
74
Appellants contend in their third issue that the prohibition against juror
testimony concerning the Atrading-off@ of answers violates their rights to due
process and equal protection under the United States Constitution and to due
process, a jury trial, and open courts under the Texas constitution. See U. S.
Const. amends. V, XIV, ' 1; Tex. Const. art. I, '' 13, 15, 19.
In Golden Eagle Archery, the appellant argued that rule 327(b) Aconflicts
with the guarantees of the right to a fair and impartial jury trial@ in article I,
sections 10 and 15 of the Texas constitution. 24 S.W.3d at 374. Rejecting the
argument, the court discussed with approval two cases from the Corpus Christi
court of appeals that collectively held that rules 327(b) and 606(b) do not violate
due process under the Fourteenth Amendment or the Texas constitution, the right
to a fair and impartial jury under the Texas constitution, or the open courts
provision of the Texas constitution. Id.; see Soliz v. Saenz, 779 S.W.2d 929,
934–35 (Tex. App.––Corpus Christi 1989, writ denied); King v. Bauer, 767
S.W.2d 197, 199 (Tex. App.––Corpus Christi 1989, writ denied). We follow
Golden Eagle, Soliz, and King and hold that rules 327(b) and 606(b) do not
violate Appellants= rights under the United States Constitution or the Texas
constitution.31 We overrule Appellants= third issue.
31
To the extent Appellants contend rules 327(b) and 606(b) violate the
equal protection clause of the Fourteenth Amendment, we overrule that portion of
Appellants= third point as inadequately briefed. See Tex. R. App. P. 38.1(i)
75
X. Conclusion
Because we have overruled each of Appellants= six issues, sustainedpart of
Bell=s second issue and all of its fifth issue, and overruled the remainder of Bell=s
issues, we affirm the portion of the trial court=s judgment relating to the claims on
behalf of Gloria Gasperi=s estate. We reverse the remainder of the trial court=s
judgment, and we render judgment that Appellants Lourdes Maria Vargas de
Damian, individually, as next friend to Nicole Denisse Damian Vargas, and as
representative of the estate of Demetrio Damian Chen, deceased; Ricardo Adolfo
Garay Barrios; Lorenzo Romagosa Acrich; and Ida Romagosa de Aranjo take
nothing.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
WALKER, J. filed a concurring and dissenting opinion.
DELIVERED: August 31, 2011
(requiring brief to contain a clear and concise argument for the contentions made
with appropriate citations to authorities).
76
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00210-CV
LOURDES MARIA VARGAS DE APPELLANTS
DAMIAN, INDIVIDUALLY, AS NEXT AND APPELLEES
FRIEND TO NICOLE DENISSE
DAMIAN VARGAS, AND AS
REPRESENTATIVE OF THE
ESTATE OF DEMETRIO DAMIAN
CHEN, DECEASED; GUILLERMO
JOSE GASPERI, INDIVIDUALLY
AND AS REPRESENTATIVE OF
THE ESTATE OF GLORIA
GASPERI, DECEASED; CARLA
GASPERI, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF GLORIA GASPERI,
DECEASED; ANGELA CECILIA
LASSEN DE GASPERI, AS LEGAL
AND PERSONAL
REPRESENTATIVE OF THE
ESTATE OF GLORIA GASPERI;
RICARDO ADOLFO GARAY
BARRIOS; LORENZO ROMAGOSA
ACRICH; AND IDA ROMAGOSA DE
ARANJO
V.
BELL HELICOPTER TEXTRON, APPELLEE
INC. AND APPELLANT
1
----------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
----------
CONCURRING AND DISSENTING OPINION
----------
I. INTRODUCTION
In its second issue, Appellee Bell Helicopter Textron, Inc. argues that the
trial court erred by submitting question 6, the design defect question, to the jury.
Specifically, Bell claims, and the Majority Opinion holds, that Bill Hinds‘s
testimony is the only evidence in the record that a safer alternative windshield
design was feasible in 1997 when the Bell 407 helicopter at issue was
manufactured. I cannot agree that Hinds‘s testimony is the only evidence
supporting the feasibility of the safer alternative design element of the windshield
design defect claim asserted against Bell by Appellants. Even excluding Hinds‘s
testimony, the remainder of the testimony and the evidence in the fifty-nine
volumes of the reporter‘s record contains more than a scintilla of evidence that a
safer alternative design—either a 0.14-inch stretched acrylic windshield or a
0.10-inch monolithic polycarbonate windshield—was technologically and
economically feasible in 1997, that the safer alternative design would have
significantly reduced the risk that the black vulture would have penetrated the
2
helicopter‘s windshield intact and killed Captain Damian, and that use of the safer
alternative design windshield would not have substantially impaired the Bell 407‘s
utility. 1 Accordingly, I dissent. I concur with the remainder of the Majority‘s
Opinion.
1I also disagree with the Majority Opinion‘s holdings that Hinds was not
qualified to testify concerning a safer alternative windshield design and that his
opinions were speculative and conclusory or not based on sound engineering
principles. All of these holdings by the majority are premised on the erroneous
premise that Hinds was required to build and to test a prototype windshield. But
no requirement exists, however, that an expert in a design defect case have
actually designed and built the available safer alternative design in order to be
qualified to testify to a safer alternative design. See Gen. Motors Corp. v.
Sanchez, 997 S.W.2d 584, 592 (Tex. 1999) (holding expert qualified to testify to
safer alternative design, upholding jury finding of design defect, recognizing that
expert was qualified to testify concerning safer alternative design, and stating that
―the plaintiffs did not have to build and test an automobile transmission to prove a
safer alternative design‖); Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 527 (Tex.
App.—Fort Worth 2006, pet. denied, pet. abated) (rejecting contentions that
expert in design defect case was not qualified because he ―‗last worked in the
automotive industry over twenty years ago and has no experience with side
airbags‘‖ and ―‗never ran a crash test with side impact airbags, never designed a
side impact airbag, never designed a vehicle with side impact airbags, and never
wrote any papers about side impact airbags‘‖); see also MCI Sales & Serv., Inc.
v. Hinton, 272 S.W.3d 17, 30–31 (Tex. App.—Waco 2008) (same, also holding
―the Plaintiffs did not have to build and test a prototype to prove a safer
alternative design‖), aff’d, 329 S.W.3d 475 (Tex. 2010), cert. denied, 131 S. Ct.
2903 (2011). Indeed, the Majority Opinion holds that Hinds‘s testimony
constitutes no evidence specifically because it was not based on testing of a
0.14-inch stretched acrylic windshield or a 0.10-inch monolithic polycarbonate
windshield in a Bell 407. But I do not address these issues because, even
excluding Hinds‘s testimony, more than a scintilla of evidence exists concerning
the safer alternative windshield design element of question 6 so that the trial court
3
II. EVEN DISREGARDING HINDS’S TESTIMONY, LEGALLY SUFFICIENT EVIDENCE
EXISTS TO SUPPORT SUBMISSION OF QUESTION 6 TO THE JURY
A. Standard of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
B. The Court’s Charge
Question number 6 submitted the following question to the jury:
did not err by submitting the question to the jury.
4
QUESTION NO. 6:
Was there a design defect in the helicopter at the time it left
the possession of Bell Helicopter Textron, Inc. that was a producing
cause of the injuries in question?
A ―design defect‖ is a condition of the product that renders it
unreasonably dangerous as designed, taking into consideration the
utility of the product and the risk involved in its use. For a design
defect to exist there must have been a safer alternative design.
―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 occurrence in question without substantially impairing the
product‘s utility and
2. was economically and technologically feasible at the time
the product left the control of Bell Helicopter Textron, Inc. by the
application of existing or reasonably achievable scientific knowledge.
Answer ―Yes‖ or ―No.‖
Answer: [the jury answered, ―yes‖]
C. Other Testimony and Evidence in the Record
The crash at issue occurred when a 3.5- to 4-pound black vulture hit the
0.10-inch as-cast acrylic windshield of a Bell 407 helicopter being flown by
Captain Damian. All experts agreed that the maximum speed that the Bell 407
could have been traveling at the time of the bird strike was 120 knots. The bird
penetrated the helicopter‘s windshield, making a hole in it, and entered the
cockpit intact. Several pictures of the bird and the helicopter‘s windshield were
offered into evidence; they showed the bird intact and a hole straight through the
helicopter‘s as-cast acrylic windshield. The bird struck Captain Damian in the
5
head and either killed him or caused him to lose consciousness so that he
slumped over the helicopter‘s controls.
In its second issue, Bell claims that Hinds‘s testimony is the only evidence
in the record that a safer alternative windshield design was technologically and
economically feasible in 1997 when the Bell 407 was manufactured. Bell claims
that neither of Hinds‘s proposed safer alternative designs––a 0.14-inch stretched
acrylic windshield or a 0.10-inch monolithic polycarbonate windshield––were
technologically feasible (1) because the stretched acrylic windshield was too
heavy to be used in a light, Part 27 helicopter like the Bell 407; (2) because
insertion of a 0.10-inch monolithic polycarbonate windshield into a Bell 407 would
require ―hundreds and hundreds‖ of pounds of structure to be added to support
the polycarbonate windshield; and (3) because a 0.10-inch monolithic
polycarbonate windshield would not stay in the windshield frame in the event of a
bird strike but instead would push through the frame into the cockpit.
As set forth below, even excluding Hinds‘s testimony, more than a scintilla
of evidence exists proving each of the vital facts necessary to support the safer
alternative design element of the windshield design defect claim submitted to the
jury in question 6.
1. Technological Feasibility
The jury‘s finding that a safer alternative windshield design—a 0.14-inch
stretched acrylic bird-impact resistant windshield or a 0.10-inch monolithic
6
polycarbonate bird-impact resistant windshield—existed in 1997 when the Bell
407 at issue was manufactured is supported by the evidence set forth below.
Most importantly, prior to 1997, Bell itself manufactured bird-impact resistant
windshields for some of its helicopters. 2 Bell‘s manufacture of bird-impact
2 Tom Gailey—Bell‘s expert on the structure of the Bell 407, a Bell
employee who had worked for Bell for twenty-three years at the time of
trial—testified that in the early 1980s, Bell manufactured and sold Bell 222
helicopters with bird-impact resistant windshields in the United Kingdom because,
at that time, the UK required bird-impact resistant windshields. Gailey testified
that he was not sure if the Bell 222 bird-impact resistant windshield was
polycarbonate; ―it may have been.‖ Since 1975, European regulations have
required bird-impact resistant windshields on helicopters weighing 6,000 pounds
or more; the Bell 407 weighs 5,500 pounds.
Steven Webster, Bell‘s director of advanced technologies and processes,
testified that Bell began manufacturing the Bell 222 with the heated bird-proof
window assemblies in 1976 for sale in Europe but did not put that windshield in
the Bell 222s being sold in the U.S.
Gailey testified that Bell had also manufactured a bird-impact resistant
windshield for the Bell 609; it was a ―two-ply polycarbonate with an adhesive –
it[‘]s called PVB adhesive—between the two plies of polycarbonate. And then
there‘s a ply of tenth-inch glass on the outside, and it also has a layer of adhesive
between it and the outer layer of polycarbonate.‖ The polycarbonate layers of
the Bell 609 are each approximately one-fourth-inch thick, that is, 0.25 inches
thick. The entire bird-impact resistant windshield for the Bell 609 is 0.75 inches
thick and weighs approximately thirty pounds per side of the front windshield.
Webster testified that in the 1970s, Bell also manufactured a UH-1
helicopter with a 0.25-inch monolithic polycarbonate windshield.
Steven Scott Cline, a project engineer who had worked for Bell for
twenty-eight years at the time of trial, testified that in 1997 and 1998, Bell was
manufacturing bird-impact resistant windshields for military helicopters. The
windshields were made of stretched acrylic with a hard coating applied.
7
resistant windshields prior to 1997 is some evidence that it was technologically
feasible for Bell to manufacture a bird-resistant windshield in 1997 for the Bell
407 by the application of existing or reasonably achievable scientific knowledge
that Bell itself possessed.
Although Bell asserted at trial that polycarbonate windshields were not
technologically feasible because they suffered from clarity and durability issues,
Bell developed a coating via a study it concluded in 1994 that eliminated all of the
clarity and durability issues Bell had encountered with polycarbonate
windshields.3 And coating a windshield does not add appreciably to the thickness
3Webster testified extensively about the results of an ―Abrasion Resistant
Canopies‖ study (ARC study) that Bell had conducted and concluded in 1994.
The study worked with coatings for windshields and documented Bell‘s discovery
of a coating for polycarbonate that addressed the UV protection issues, the rain
shedding issues, the chemical resistance issues, and the scratching issues
sometimes encountered with the use of polycarbonate windshields. Webster
testified:
Q. Okay. In your ARC study in ‘94, which was three years before
this Bell 407 was manufactured, you determined that you had
coatings that would enhance UV protection, rain shedding, chemical
resistance and protection against scratching, didn‘t you?
A. Yes.
Q. And that included the coated polycarbonate, correct?
A. Yes.
Q. Okay. So in ‘94, you had a coating that you could put on,
including polycarbonate, that was satisfactory to you in dealing with
these problems, didn‘t you?
8
of the windshield; ―[t]he coating is very thin one mil. It‘s within tolerance of the
structural ply, so the coating -- if you coat a polycarbonate ply, it does not
increase the thickness appreciably.‖
Although Bell asserted at trial that neither of the proposed safer alternative
windshields—a 0.14-inch stretched acrylic bird-impact resistant windshield nor a
0.10-inch monolithic polycarbonate bird-impact resistant windshield—were
technologically feasible because they weighed too much, testimony and evidence
A. It addressed all those problems, yeah, trying to make it better.
Q. Three years -- three years before -- because those are your only
criticisms of polycarbonate. So y‘all had that solved in ‘94, three
years before this helicopter that two of these people‘s family
members died in was manufactured, correct?
....
A. This technology was available for many years.
Q. My point is, you had a satisfactory coating that solved the
criticisms you had for polycarbonate three years before this aircraft
was manufactured that these people crashed in, correct?
A. It addressed those issues, yes.
Q. Okay. So now all that‘s left is, would the polycarbonate have
stopped the bird or not, correct?
A. I‘m – I‘m not – I‘m not going – I can‘t answer those questions for
you –
9
was adduced that neither of the safer alternative design windshields are much
heavier than the 0.10-inch as-cast acrylic windshield that was in the Bell 407.4
John Raffo, Appellants‘ coatings expert, identified several different coatings
for polycarbonate that were available prior to 1997 and would have worked well
on a 0.10-inch polycarbonate windshield for the Bell 407.
4According to Bell‘s expert Dr. Gary Thompson, the bird-impact resistant
windshield that Bell placed in the Bell 222 in 1976 weighed twenty-six pounds,
only eighteen pounds heavier than the existing as-cast acrylic windshield in the
Bell 407.
Concerning the weight of polycarbonate, one of Appellants‘ experts
Anthony Bosik, an aeronautical engineer and principal in Bosik Consultants
Limited, the company that operates the National Research Council bird cannon,
testified:
Q. Briefly, let‘s talk about the different weights between the
materials, the substance. This is still – we‘re still in the 1976 report
[the 1976 report prepared for the U.S. Army was admitted into
evidence as Plaintiffs‘ Exhibit 104]. What would be your response
to the criticism that polycarbonate is much weightier and would be
much heavier?
A. It is not, it is just slightly heavier.
Q. Okay?
A. As one can see, 12.7 versus 13.8.
Q. And this was known back in at least since 1976, and has
everyone really kind of known that all along?
A. Yes.
The 1976 report prepared for the U.S. Army contains the following abstract:
Bird impact results graphically demonstrated that the polycarbonate
prototype provided the superior resistance, i.e., resistance to bird
strikes at speeds up to 120 knots while the standard acrylic
10
Although Bell asserted at trial that installation of the safer alternative design
of a 0.10-inch monolithic polycarbonate bird-impact resistant windshield was not
technologically feasible because it would require the addition of ―hundreds and
hundreds‖ of pounds of structure to the Bell 407 to support the windshield, after
the accident at issue here, Bell in fact did install a 0.10-inch monolithic
polycarbonate bird-impact resistant windshield in a Bell 407. Absolutely no
structural changes were made to the Bell 407 prior to installing the 0.10-inch
monolithic polycarbonate windshield,5 and certainly not the addition of ―hundreds
windshield was incapable of defeating a bird strike at the UH-1 [a
Bell helicopter] cruising speed of 90 knots.
In general, the superior mechanical properties and the flight
worthiness of the coated polycarbonate configuration have been
demonstrated.
5Webster testified that once Bell started working on it in 1999, they formed
the Bell 407 polycarbonate bird-impact resistant windshield in about two months.
Allan Allman, a staff engineer who had worked for Bell for a total of thirty-eight
years at the time of trial, testified that in 1999, Bell had installed a 0.10-inch
monolithic polycarbonate windshield in a Bell 407 and admitted that there were
no structural changes to the Bell 407 prior to installation of the polycarbonate
windshield.
Gailey also testified that since the accident at issue in this case, Bell had
manufactured a Bell 407 with a polycarbonate windshield and that it had not
required any changes to the structure of the helicopter.
Webster testified:
Q. Well, we‘ve heard in this case about, well, if you want to put a
polycarbonate in a light helicopter you‘ve got all these structural
issues. Tell me what structural changes were made in the 407 that
11
and hundreds of pounds of structure.‖6
the military is flying around with right now with a polycarbonate
windshield in it?
A. Mr. Fisher, I can‘t answer that.
Q. You can‘t?
A. No, sir.
Q. But do you – assume with me that that‘s one of the issues in this
case, that‘s been made in this case, is you can‘t put polycarbonate in
these things because it might come out of the structure. It might – if
it stops the bird, the whole windshield is going to come out, you‘re
going to have to change the whole structure.
A. Not necessarily.
....
Q. But my point is this: And that is, you can‘t tell the jury that any
structural changes had to be made to the 407 to put the
polycarbonate windshield in it, can you?
A. There were no structural changes made to the OH-58D or the
407 in trying to put a polycarbonate windshield in it.
6Concerning the structural changes allegedly necessary to the Bell 407 to
support a bird-impact resistant windshield, Allman testified:
If you want to be able to take this load [a bird-impact resistant
windshield in a Bell 407] you‘ve got to get it back to the middle.
You‘ve got to take all the energy – they call it sheering out. So what
you do is you add a bunch of weight, which I have never calculated –
and as I said in my deposition hundreds and hundreds of pounds. I
don‘t know the exact weight and – it‘s a lot. Anyway, you take
whatever that weight is, and you put it here. And then you have to
get that so it will support that bird windshield so it will be bird proof.
Webster intimated that the structure of the Bell 407 would have to be
―beefed up‖ if the existing 0.10-inch as-cast acrylic windshield were replaced with
12
2. Economic Feasibility
Several witnesses testified that both a monolithic polycarbonate
windshield and a stretched acrylic windshield were economically feasible in
prior to 1997.7
3. Either of the Safer Alternative Design Windshields Would Have
Significantly Reduced the Risk of the Occurrence in Question
Had the Bell 407 been equipped with either of the safer alternative design
bird-impact resistant windshields––either a 0.10-inch monolithic polycarbonate
windshield or a 0.14-inch stretched acrylic windshield, instead of the 0.10-inch
as-cast acrylic windshield it did possess––in reasonable probability, the vulture
would either have not come through the windshield or would have been liquefied
or broken into pieces so that Captain Damian was not killed.8 Polycarbonate is
a 0.10-inch monolithic polycarbonate windshield, but he could not say what
structure needed to be ―beefed up.‖
7Raffo testified that a polycarbonate windshield could have been made as
early as the 1970s; a monolithic polycarbonate replacement windshield for the
Bell 407 could have been manufactured by Sierracin for approximately $2,000 to
$3,000. Raffo testified that the cost of as-cast acrylic [the material used in the
Bell 407 helicopter‘s windshield] and polycarbonate are ―roughly similar in costs.‖
Bosik testified that ―polycarbonate and as-cast acrylic are both the same costs.‖
Webster testified that although Bell did ―nothing‖ to develop a polycarbonate
windshield in the Bell 407 from 1976–1994, ―cost was not a factor‖ in Bell‘s
decision, ―[e]specially on something as inexpensive as a polycarbonate product.‖
8Dr. Warren Wandel, Bell‘s accident reconstruction expert, agreed that it
was undisputed and that Bell‘s experts agreed that had a 0.10-inch polycarbonate
windshield been in the Bell 407 at issue, the windshield would not have broken
when impacted by the vulture.
13
more bird-impact resistant than as-cast acrylic because it is more flexible and
absorbs more energy. 9 Stretched acrylic is more bird-impact resistant than
as-cast acrylic because heating and stretching the acrylic causes the
cross-linking molecules to line up and results in a more impact-resistant
material. 10 A 0.10-inch stretched acrylic windshield would have significantly
reduced the risk of the occurrence in question, and a 0.14-inch stretched acrylic
windshield would have prevented the vulture from penetrating the windshield
intact.11
9Bosik testified that ―polycarbonate is able to absorb a lot more impact,
because it is more flexible. It deforms more during the impact and is therefore
able to absorb more of the energy than, let‘s say, the acrylic.‖ Bosik opined that
polycarbonate transparencies are substantially more resistant to bird impact than
as-cast acrylic transparencies; ―for a bolted edge situation the polycarbonate
gives you about three times the impact resistance of as-cast acrylic,‖ and for a
clamped edge situation, the impact resistance of a polycarbonate frame is even
significantly higher.
Raffo testified that ―[p]olycarbonate is the most impact-resistant plastic
polymer that is used in aircraft transparencies. It‘s efficient because it has a
good impact resistance at a thin thickness, which means that the weight is
reduced.‖ Polycarbonate windshields were used in the F-16 starting in the
mid-1970s.
10Raffo testified that ―[f]rom an impact point of view, as-cast acrylic is the
least resistant material. Stretched acrylic would be the next strongest material,
and polycarbonate would be the ultimate.‖
11 Bosik testified that in 1978, he published a study on bird impacts on
monolithic aircraft windshields where he tested the velocity necessary for a bird to
penetrate as-cast acrylic, stretched acrylic, and polycarbonate windshields. His
study was introduced into evidence as Plaintiffs‘ Exhibit 98. Based on the tests
he conducted, in the late 1970s Bosik participated in the development of a
mathematical equation to predict penetration velocity of these materials based on
the thickness of the material and the weight of the bird being fired at it. Bosik
14
read from a 1976 report that the U.S. Army had produced concerning tests it had
done on the Bell UH-1 helicopter and that it had provided to Bell in 1976. The
report concluded that ―[b]ird impact results graphically demonstrated that the
polycarbonate prototype provided the superior resistance.‖ Based on the Army‘s
tests in 1976 and Bosik‘s mathematical equation, a 0.10-inch polycarbonate
windshield would have defeated a 120-knot strike by a four-pound bird.
Concerning whether a stretched acrylic windshield design or a
polycarbonate windshield design would have in reasonable probability prevented
the approximately four-pound vulture from penetrating the windshield of the Bell
407, traveling at a maximum speed of 120 knots in such a way that it struck and
killed Captain Damian or knocked him unconscious, Bosik testified:
Q. And what did you conclude with respect to the penetration
velocity of either stretched acrylic or polycarbonate in this particular
accident?
A. Basically the stretched acrylic in the same thickness probably
could have survived [a] 100 knot test. But stretched acrylic is a
feasible material as well as far as the windshield goes. The
thickness would have to be increased a little bit from what it is, to an
estimated .14 inches.
Q. So for stretched acrylic they‘d only have to go from .1 to .14?
A. For polycarbonate a .1 inch thick, which is the same thickness,
would increase the penetration velocity from about 60 or 70 to about
200 knots.
Q. So for the polycarbonate material, as far as the thickness that
we see here with respect to the windshield, it – it could have been
the same size?
A. Yes.
Q. And that was feasible at the time this helicopter was
manufactured?
A. Yes.
15
Although Bell asserted at trial that a 0.10-inch monolithic polycarbonate
windshield would not have prevented the occurrence in question because,
according to Bell, the windshield would have pushed through its frame into the
cockpit of the helicopter, Bell based this assertion on non-bird-strike testing that
the jury could have found flawed and disbelieved.12 The non-bird-strike testing
12Allman, one of Bell‘s staff engineers, was asked what would happen if a
polycarbonate windshield was placed in a Bell 407, a bird hit it, and the
polycarbonate did absorb the energy and prevent the bird from penetrating the
windshield. He answered:
A. If you put a large enough polycarbonate window and mount it on
the Bell structure so that the bird‘s energy will be absorbed, that
energy that it absorbs is past the point that the structure can handle
and it will buckle, then the windshield will break loose, because the
structure is given away underneath the load of the windshield.
Q. So windshield structure buckles and windshield breaks loose; is
that fair?
A. Yes, sir.
Q. Okay. Now, tell the jury every test that you‘ve run, every
equation you‘ve done, every bird Bell‘s fired, you or Bell has fired at
a tenth of an inch polycarbonate windshield in a 407 structure.
A. Mr. Webster answered that, and my answer will be the same. Is
we have not done any bird-strike tests.
....
Q. So wouldn‘t you agree, sir, that – that you or Bell have
performed no tests, done no studies, done no experiments to support
the opinions that you‘re giving today that the windshield will come
out?
16
that Bell did perform in preparation for this litigation involved dropping fifty pounds
of lead from a crane onto a square piece of 0.10-inch monolithic polycarbonate
mounted in a wooden frame. 13 And even Bell‘s non-bird-strike testing
A. We have done no tests on the 407 to support that opinion.
13 Bosik testified regarding Bell‘s testing in preparation for this litigation.
He explained that to form its opinion that a 0.10-inch polycarbonate windshield
would not stay in the windshield frame following a bird strike, Bell mated a
polycarbonate square to a square frame made of wood, hoisted a fifty-pound lead
weight up by a crane, and dropped it on the framed polycarbonate. The piece of
polycarbonate stayed intact but was pushed down through the wooden frame
holding it. Bosik explained that the load Bell used to do this test was improper
because the lead ―in no way simulates a bird. . . . Because the consistency of it
is not correct. . . . For a first approximation of a bird, you would assume a liquid,
as opposed to a solid. So a bird is more like an orange than an apple.‖ Bosik
said that Bell did not perform the testing to ASTM‘s standards for bird impact
testing ―because they should be using a bird or a simulated bird and that should
be conducted at the right speed. In addition to that, it should be a representative
of structure and it should be conducted at the right attitude; that is, the same flight
path as the aircraft would be.‖ Additionally, Bell‘s testing utilized a wooden
frame, rather than the steel-type frames used in the Bell 407 and also no
evidence exists that the mating with the wooden box utilized an extra 1.5 inch
interface as required by Hinds‘s design. Consequently, Bosik concluded, ―I don‘t
think this test has any validity whatsoever.‖
Dr. Gary Thompson testified for Bell that the bird in this case hit the Bell
407 with 2230 foot pounds of energy. He said that amount of energy is what Bell
was trying to replicate in its testing by dropping fifty pounds of lead on a square of
polycarbonate. Dr. Thompson testified:
Q. You‘re from east Texas. Did you ever hit lovebugs on your
windshield?
A. Yes, I have.
Q. When you hit them on your windshield, which way does the bug
shoot up? Which way did the starburst of the bug happen?
17
constituted some evidence that a 0.10-inch monolithic polycarbonate windshield
would not have shattered upon impact with the 3.5- to 4-pound vulture––since it
did not shatter upon impact with fifty pounds of lead traveling at the same or
greater velocity as the vulture and in a more dangerous, downward angle of
attack than the vulture.
4. Use of a Safer Alternative Design Windshield
Would Not Impair the Bell 407’s Utility
In 1999, after only two months of work, Bell produced and installed a
0.10-inch monolithic polycarbonate windshield in a Bell 407 for a company called
A. Typically goes up with the air flow.
Q. It doesn‘t stay intact, obviously, right?
A. Most bugs will not, no.
Q. Because bugs are partially liquid, right?
A. Yes.
Q. Like a bird?
A. Yes.
Q. How much liquid is in that 3.5 pound vulture?
A. I am not a vulture expert, I couldn‘t tell you that.
Q. Probably a lot more than in this, say, lead sack that they have
duct taped up, right there?
A. I would have to agree with that, yes.
18
Air Logistics. Although Bell asserted at trial that to accomplish this feat would
require the addition of hundreds and hundreds of pounds of structure to the Bell
407, altering the utility of the Bell 407 by changing it from a lightweight Part 27
helicopter into a heavier, less maneuverable Part 29 helicopter, the evidence
conclusively established that, in fact, Bell made no structural changes to the Bell
407 in order to install the 0.10-inch monolithic polycarbonate bird-impact resistant
windshield. 14 Additionally, Bell did not inform Air Logistics of any of the
concerns Bell expressed at trial—that the 0.10-inch monolithic polycarbonate
bird-impact resistant windshield in the Bell 407 would push through into the Bell
407‘s cockpit in the event of a bird strike.15
14Recall that Allman, Gailey, and Webster, all testified that in 1999, Bell
had installed a 0.10-inch monolithic polycarbonate windshield in a Bell 407; no
structural changes to the Bell 407 were required prior to the installation of the
windshield.
15Allman admitted that although Bell had, subsequent to this crash, put a
polycarbonate windshield on a Bell 407 that was forwarded to Air Logistics, Bell
had not warned Air Logistics of Bell‘s opinion that a bird strike would cause the
window structure to collapse and the windshield to enter the cockpit. He was
then asked:
Q. So back in ‘99, you know, or you told this jury that it[‘]s common
sense to know that if a bird hits a polycarbonate it‘s going to knock it
out of the structure and it‘s going to be potentially dangerous or fatal
to the pilot. You sent it down to Air Logistics, had them fly around in
it, you didn‘t tell them about it, and you didn‘t even change the
structure on the 407 for that first windshield, did you?
....
19
D. Application of the No-Evidence Standard of Review
In short, even excluding Hinds‘s testimony, more than a scintilla of
evidence exists supporting every fact that the jury was required to find in question
6 to support the safer alternative design element of the windshield design defect
claim. Considering all of the above evidence favorable to the jury‘s safer
alternative design finding because a reasonable factfinder could, and
disregarding the sometimes contrary and conflicting evidence propounded by
Bell‘s long-time employees and experts because a reasonable factfinder could,
more than a scintilla of evidence exists supporting the jury‘s finding that a safer
alternative windshield design existed for the Bell 407 in 1997. See Cent. Ready
Mix Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807.
The above evidence—that prior to 1997, Bell did manufacture numerous
bird-impact resistant windshields; that in 1994, Bell developed a coating that
solved its problems with polycarbonate windshields; that in 1976, Bell was able to
design and manufacture a bird-impact resistant windshield for the Bell 222 to
meet European bird-strike standards; that Bell successfully made a 0.10-inch
polycarbonate bird-impact resistant windshield for the Bell 407 in 1999 within two
months after it began its attempts; and that Bell ultimately did not make any
structural changes to the Bell 407 in order to install a 0.10-inch polycarbonate
A. When we sent it down to Air Logistics, we did not and are not sure now
that it endangers anyone.
20
bird-impact resistant windshield in a Bell 407—constitutes more than a scintilla of
evidence that it was technologically feasible in 1997 for Bell to manufacture a
0.10-inch monolithic polycarbonate bird-impact resistant windshield for the Bell
407 by the application of existing or reasonably achievable scientific knowledge.
See Uniroyal Goodrich Tire Co., 977 S.W.2d at 337 (holding testimony that
competitors were already using the safer alternative design and the fact that the
company switched to the safer alternative design one year after the accident was
evidence of its feasibility); Temple EasTex, Inc. v. Old Orchard Creek Partners,
Ltd., 848 S.W.2d 724, 746–48 (Tex. App.—Dallas 1992, writ denied) (holding that
evidence of actual use of a safer design by the defendant or others at the time of
manufacture is admissible on the issue of defective design and is strong evidence
of feasibility). More than a scintilla of evidence also exists that a polycarbonate
windshield could have been made economically as early as the 1970s; Bell‘s own
expert testified that cost was not an issue with a material as inexpensive as
polycarbonate. Because all of the experts agreed, and even Bell‘s testing
confirmed, that a 0.10-inch monolithic polycarbonate windshield or a 0.14-inch
stretched acrylic windshield would have caused the 3.5- to 4-pound black vulture
either to bounce or glance off of the windshield, to merely crack the windshield, or
to penetrate the windshield in a liquefied form or in pieces, all of which would
have prevented the occurrence in question, more than a scintilla of evidence
exists that either of the safer alternative design bird-impact resistant windshields
21
would have significantly reduced the risk of the occurrence in question. See
Bryant v. Giacomini, S.p.A., 391 F. Supp. 2d 495, 501 (N.D. Tex. 2005)
(recognizing that defendant‘s expert‘s admission that alternative design reduced
risk was sufficient to allow jury to reasonably conclude that existence of safer
alternative design was economically and technologically feasible). Bell‘s
subsequent success in manufacturing and installing a polycarbonate windshield
in the Bell 407 without adding any structural weight to the helicopter is more than
a scintilla of evidence that a 0.10-inch monolithic polycarbonate bird-impact
resistant windshield would not, and in fact did not, jeopardize or diminish the
utility of the Bell 407. See Allen v. W.A. Virnau & Sons, Inc., 28 S.W.3d 226,
232–33 (Tex. App.—Beaumont 2000, pet. denied) (holding that ―the documentary
evidence submitted by appellants shows the same model tractor with the ROPS
[Rollover Protective Structure] and the seat belt as standard equipment is some
evidence, certainly more than a scintilla, that the combination system did not
jeopardize or diminish the utility of the tractor‖). Because, even excluding
Hinds‘s testimony the evidence is legally sufficient to support submission to the
jury of the safer alternative design element of the windshield design defect claim,
I would overrule Bell‘s second issue.
III. CONCLUSION
I would hold that the evidence is legally sufficient to support submission to
the jury of the safer alternative design element of the windshield design defect
22
claim in question 6. Because the Majority Opinion holds otherwise, I respectfully
dissent.
I concur with the Majority Opinion‘s disposition of Bell‘s other issues and of
Appellants‘ issues.
SUE WALKER
JUSTICE
DELIVERED: August 31, 2011
23