Kimberly Witt, Fe Santistevan, Jimmie Santistevan, Sarah Santistevan, Gwynneth Hennis, Garreth Germono, Germaine Germono, Alexandra Witt, Christina Corey, Ellen Potthast, and Benita De Guzman v. Michelin North America, Inc. and BF Goodrich, in Its Assumed or Common Name

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00390-CV
___________________________
KIMBERLY WITT, DECEASED, FE SANTISTEVAN, DECEASED, JIMMIE
SANTISTEVAN, SARAH SANTISTEVAN, GWYNNETH HENNIS, GARRETH
GERMONO, GERMAINE GERMONO, ALEXANDRA WITT, CHRISTINA
COREY, ELLEN POTTHAST, AND BENITA DE GUZMAN, Appellants
V.
MICHELIN NORTH AMERICA, INC. AND BF GOODRICH, IN ITS ASSUMED
OR COMMON NAME, Appellees
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CV14-1833
Before Gabriel, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Kimberly Witt and Fe Santistevan were tragically killed in a traffic accident in
2014. As relevant here, their estates and family members—the Appellants—filed a
products liability action against appellee Michelin North America, Inc. In five issues,
Appellants challenge the take-nothing judgment in favor of Michelin. We resolve a
majority of these issues in Michelin’s favor. However, we agree with Appellants that
the trial court abused its discretion by sealing a certain set of records. We therefore
affirm in part and reverse and render in part.
I. BACKGROUND
On June 25, 2014, Jennifer Cristantielli was driving on a highway outside of
Granbury, Texas, when the tread on her Michelin tire separated.1 The tread separation
caused her truck to swerve across the grassy median into oncoming traffic, striking the
vehicle in which Witt and Santistevan were traveling. Santistevan died at the scene, and
Witt died at the hospital.
1
Portions of the record were filed under seal pursuant to the trial court’s sealing
order. See Tex. R. Civ. P. 76a. Because of the sealing order, some of our references to
the record are “deliberately vague.” See TMX Fin. Holdings, Inc. v. Wellshire Fin. Servs.,
LLC, 515 S.W.3d 1, 4 n.1 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d); Kartsotis
v. Bloch, 503 S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. denied) (op. on reh’g).
Nonetheless, we have a responsibility to resolve disputes through public opinions that
explain our decisions based on the record. See Tex. R. App. P. 47.3. “To the extent we
include any sensitive information in this memorandum opinion, we do so only to the
degree necessary to strike a fair balance between the parties’ interest in keeping portions
of the record confidential and our responsibilities to the public as an appellate court.”
TMX, 515 S.W.3d at 4 n.1.
2
Appellants filed suit against Cristantielli and the company she was working for,
Morgans of Briar Oaks, LLC. Appellants also sued Michelin, alleging that the failed tire
on Cristantielli’s truck was defective from design, manufacturing, and marketing
standpoints. Appellants further alleged that Michelin was grossly negligent in designing
and manufacturing the failed tire.
Appellants sought to bring five defect theories before the jury through the expert
testimony of Troy Cottles. At Michelin’s urging, the trial court excluded two of
Cottles’s defect theories as unreliable. Appellants went to trial on the three remaining
defect theories.
For its part, Michelin contended that the tire was not defective. Instead, Michelin
argued that the tread separation was caused by poor maintenance and improper use by
the truck’s owner, Morgans of Briar Oaks.
The parties conducted a hard-fought, two-week trial in which they thoroughly
covered Michelin’s production process, the supposed defects, and the accident itself.
After the close of Appellants’ case, the trial court granted a directed verdict on
Appellants’ gross-negligence claim. The jury found that the tire was not defective, but
that Morgans of Briar Oaks was negligent in maintaining the tire, and that this
negligence was 100% to blame for causing the decedents’ deaths. As damages, the jury
awarded funeral expenses of $9,569.94 for Witt and $1,922 for Santistevan. Appellants
appealed.
3
II. EXCLUSION OF EXPERT TESTIMONY
In their first issue, Appellants challenge the order preventing their expert, Troy
Cottles, from testifying as to two alleged defects in the tires: belt irregularities and liner
pattern marks. The trial court agreed with Michelin’s argument that Cottles had not
demonstrated a reliable foundation for these theories. Appellants assert that the
content of Cottles’s eighty-page affidavit should have been more than sufficient to
establish the reliability of his proposed testimony.
“Qualified experts may offer opinion testimony if that testimony is both relevant
and based on a reliable foundation.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d
338, 348 (Tex. 2015). “To be relevant, the proposed testimony must be sufficiently tied
to the facts of the case that it will aid the jury in resolving a factual dispute.” E.I. du
Pont de Nemours & Co., v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (internal quotation
marks omitted). Expert testimony is reliable if it meets the Robinson factors, see id. at
557, or if the trial court can otherwise assess its reliability, see Helena Chem. Co. v. Wilkins,
47 S.W.3d 486, 499 (Tex. 2001). The six non-exclusive 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 and/or
publication;
(4) the technique’s potential rate of error;
4
(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.
Robinson, 923 S.W.2d at 557.
Expert testimony is unreliable if there is too great an analytical gap between the
data on which the expert relies and the opinion offered. Gharda, 464 S.W.3d at 349.
“Whether an analytical gap exists is largely determined by comparing the facts the expert
relied on, the facts in the record, and the expert’s ultimate opinion.” Id. The trial court
has broad discretion to determine admissibility, and we will reverse only if there is an
abuse of that discretion. Helena Chem., 47 S.W.3d at 499. To gauge reliability, we
evaluate “the methods, analysis, and principles relied upon in reaching the opinion.” Id.
(emphasis added) (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725
(Tex. 1998)).
To begin, Michelin does not dispute Cottles’s qualifications, which were
considerable. Nor does Michelin dispute Cottles’s general method of evaluating the
case, in which he inspected the physical condition of the failed tire using a microscope
and x-rays, compared its qualities to benchmarks for damage and abnormalities, and
worked backward from the tire’s characteristics to reach an opinion as to what had gone
wrong. Michelin’s expert employed much the same method.
Rather, on appeal, Michelin only disputes the reliability of the analysis and
principles that Cottles advanced in support of his defect theories. According to
5
Michelin, Cottles’s affidavit offered little support for his theories that the tire suffered
from “belt irregularities” and “liner pattern marks” that materially contributed to its
failure. Michelin attacked the sources that Cottles drew upon in support of these
theories, and Michelin offered excerpts from Cottles’s depositions that also tended to
undercut his proposed testimony. The trial court ruled in favor of Michelin. To assess
whether the trial court abused its discretion, we examine the record, especially Cottles’s
affidavit.
In his affidavit, Cottles opined that he observed multiple forms of belt
irregularities in the failed tire, including abnormally spaced belt cables, off-centered
placement of the belt, and “dog-eared splices.”2 According to Cottles, these
irregularities contributed to heat generation and stress within the failed tire, particularly
at the edges of the belts where the tread separation occurred. Cottles attested that these
irregularities were manufacturing defects resulting from a poorly controlled production
process. In Cottles’s view, the poor placement and splicing of the belts were significant
contributing factors in causing the tire’s tread to separate.
To bolster this hypothesis, Cottles cited multiple sources stating that
“manufacturing variances,” in general, may contribute to tire failure. Because of their
While Cottles explained a great deal about the tire production process, he did
2
not explain exactly what a dog-eared splice was. Based on the whole of his affidavit, it
appears that a dog-eared splice may be some sort of misplacement that results when
various components of the tire are inexactly joined together during the initial stages of
the production process.
6
generality, the trial court might have fairly believed that these sources supported
Cottles’s theory only in a loose sense.
Cottles cited just one source, an article by Jill Bartel, that directly supported his
theories concerning the specific irregularities he found in the failed tire. However,
Cottles agreed at his deposition that he did not know if Bartel was an engineer, what
her qualifications were, or whether her article was peer-reviewed. Cottles further
conceded that he was not aware of any testing or peer-reviewed literature that might
support his belt-irregularity theory. 3 By contrast, he agreed that there were some testing
and published, peer-reviewed papers that went against his premise.
In the absence of any peer-reviewed support, Cottles testified that he ultimately
rested his opinion on his “training and experience in the industry.” But “in 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.” Whirlpool Corp. v. Camacho, 298
S.W.3d 631, 638 (Tex. 2009).
Moreover, while Cottles argued that manufacturing variance may contribute to
tire failure, he agreed that all of the irregularities he found in the tire were within
Michelin’s specifications. To qualify as a manufacturing defect, the product must
deviate from its specifications or planned output in a manner that renders the product
unreasonably dangerous. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 41 (Tex. 2007). To
Michelin also produced a deposition from another case in which Cottles
3
admitted that he had not tested his belt-irregularity theory.
7
some degree, then, Cottles’s own testimony created an analytical gap between the
undisputed realities of the case and his opinion that these irregularities constituted a
defect. See Gharda, 464 S.W.3d at 349; Toups v. Synthes, Inc., Civ. A. 14-2544, 2015 WL
6738541, at *5–6 (E.D. La. Nov. 4, 2015) (holding that plaintiff’s expert’s agreement
that product seemingly met its specifications helped support summary judgment against
plaintiff’s manufacturing-defect claim); see also Zea v. Ford Motor Co., Civ. A. H-14-3290,
2017 WL 979067, at *1 (S.D. Tex. Mar. 10, 2017).
Based on similar considerations, the Tenth Circuit held that a trial court properly
disallowed an expert opinion on the very belt irregularities that Cottles singled out as
defects in this case. Ho v. Michelin N. Am., Inc., 520 Fed. App’x 658, 665 (10th Cir.
2013). There, the expert did not know if the belt irregularities “fell within Michelin’s
specifications.” Id. at 661. The court further noted that the expert had “conceded that
the peer-reviewed literature suggests that [off-center placement] and dog ears do not
cause belt separations, and he was unable to cite any peer-reviewed literature supporting
his contrary theory.” Id. To overcome these failings, the appellant emphasized her
expert’s experience as a basis for admitting his belt-irregularity opinions. Id. at 664–65.
The Tenth Circuit was unpersuaded: “Experience is not necessarily a password to
admissibility . . . .” Id. at 665.
In line with Ho, we will uphold the exclusion of Cottles’s belt-irregularity
opinions. This is not one of those rare cases where the expert’s experience, in itself,
paves a path to the admission of his theory. See Ledesma, 242 S.W.3d at 41. Rather,
8
because Cottles’s belt-irregularity theory appeared to go against the majority of the
established literature and testing, and because Cottles seemingly agreed that there was
no manufacturing defect insofar as the tire irregularities remained within specifications,
we conclude that the trial court did not abuse its discretion by excluding this testimony.4
Next, we consider Cottles’s theory concerning liner pattern marks. In his
affidavit, Cottles thoroughly explained the process by which tires are designed and
constructed. He explained that certain aspects of Michelin’s production process (which
we do not discuss due to the sealing order) cause substantial delay, during which the
raw rubber of the tire’s components can dry out, lose its tackiness, and permanently
take on the pattern of the liner in which it is shipped to the plant. According to Cottles,
this decline in the condition of the materials can impede the bonding that is supposed
to occur when the raw materials of the tire are heated and “cured” together. Cottles
cited sources explaining that any liner marks should be obliterated in a properly cured
tire. Thus, he attested that when he observes liner marks on a tire, he takes it as strong
evidence that the tire did not properly bond in the first place due to the condition of
the materials. Cottles testified that the failed tire in this case displayed liner pattern
marks, and he offered a photograph of the tire’s inner rubber layer, which had a coarse
grid pattern on it.
4
Appellants offer orders from nearly twenty cases in which Cottles advanced
similar theories and the trial court denied a motion to exclude Cottles’s testimony. We
do not hold that these cases were wrongly decided. We only hold that the trial court
did not abuse its discretion by ruling as it did in this case.
9
To substantiate his theory that liner marks indicate poor bonding, Cottles offered
quotations from four publications and three depositions. Some of the sources that
Cottles cited in support of his liner-mark theory seemed to offer persuasive, direct
support for his opinions, making the admissibility of this theory a close question.
Still, in its discretion, the trial court could have rationally questioned the
provenance of some of these sources or, as to one source, the relevance of its quoted
content. One quotation was drawn from a 1993 article in an obscure and now-defunct
trade magazine. The Texas Supreme Court has questioned the validity of another one
of Cottles’s sources, a book by Richard “Rex” Grogan, under the test of peer review.
See Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006). Another
quotation, which was taken from The Handbook of Rubber Bonding, gave only indirect
support for Cottles’s conclusion. As for the depositions, the quotations do not state
whether the deponents were engineers, experts, or tire designers whose opinions might
have valid bearing on the reliability of Cottles’s testimony.5 By contrast, Cottles agreed
at his deposition that there were multiple published, peer-reviewed studies that directly
went against his liner-mark theory.
In Cooper Tire, the court upheld the exclusion of an opinion on liner marks based
on doubts about the sources that the expert used to support his theory. See id. at 802,
5
We do not imply that an expert’s sources must indicate these things in order for
the source to have any use in the Robinson context. We merely note that the trial court
would have been within its rights to question the sources based on the lack of these
qualifications.
10
805. Similarly, in Kehler v. Bridgestone Americas Tire Operations, LLC, the court excluded a
liner-mark opinion based on deficiencies in the expert’s supporting materials. No. 15-
CV-127-J, 2016 WL 8316771, at *6 (D. Wyo. Dec. 1, 2016); see also Beauregard v. Cont’l
Tire N. Am., Inc., 695 F. Supp. 2d 1344, 1351–53 (M.D. Fla. 2010), aff’d, 435 Fed. App’x
877 (11th Cir. 2011). In the same way, the trial court here might have rationally doubted
Cottles’s theory based on the provenance of his sources, especially in light of the
literature that cut against his liner-mark theory and the Texas Supreme Court’s
disapproval of a liner-mark theory in Cooper Tire. Thus, in terms of the Robinson factors,
the trial court could have fairly questioned the theory’s reliability (1) as a generally
accepted principle (2) that was validated by peer review.
Moreover, Appellants offered nothing to satisfy the other Robinson factors. There
was no evidence that Cottles had attempted to quantify the degree to which liner
markings correlate with tire failure, leaving his opinion at least slightly subjective. See
Cooper Tire, 204 S.W.3d at 802 (faulting a tire-defect opinion for this reason). Moreover,
Cottles agreed at his deposition that he was not aware of any testing concerning liner
marks or his theory’s rate of error.
Again, the sources and thorough explanation that Cottles produced in support
of his theory make this question a close one. But “[c]lose calls must go to the trial
court” where the admissibility of expert opinion is concerned. Larson v. Downing, 197
S.W.3d 303, 304 (Tex. 2006) (per curiam). We hold that the trial court did not abuse
11
its “broad discretion” in excluding this testimony. See Helena Chem., 47 S.W.3d at 499.
We overrule Appellants’ first issue.
III. DIRECTED VERDICT ON GROSS NEGLIGENCE
In their second issue, Appellants contest the directed verdict on their gross
negligence claim. Appellants assert that their evidence raised a fact issue on both prongs
of gross negligence, such that a directed verdict was inappropriate.
A directed verdict is only proper in limited circumstances: (1) when the evidence
is insufficient to raise a material fact issue, or (2) when the evidence conclusively
establishes the right of the movant to judgment or negates the right of the opponent.
JPMorgan Chase Bank, N.A. v. Prof’l Pharmacy II, 508 S.W.3d 391, 414–15 (Tex. App.—
Fort Worth 2014, no pet.). In reviewing the grant of a directed verdict, an appellate
court follows the standards for assessing the legal sufficiency of the evidence. Lennon
II Family L.P. v. Gideo, No. 02-18-00250-CV, 2019 WL 4124399, at *10 (Tex. App.—
Fort Worth Aug. 29, 2019, pet. denied) (mem. op.). We review the evidence in the light
most favorable to the person suffering the adverse judgment. See City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if reasonable jurors
could and disregard contrary evidence unless reasonable jurors could not. Id. at 827.
An appellate court must determine whether there is any evidence of probative force to
raise a fact issue on the question presented. Lennon II Family, 2019 WL 4124399, at *10;
see, e.g., Henry S. Miller Commercial Co. v. Newsom, Terry & Newsom, L.L.P., No. 05-14-
12
01188-CV, 2016 WL 4821684, at *5 (Tex. App.—Dallas Sept. 14, 2016, pet. denied)
(mem. op.) (analyzing the propriety of directed verdict on a gross negligence claim).
“Gross negligence has both an objective and a subjective component.” Medina
v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019). First, viewed objectively from the actor’s
standpoint, the act or omission complained of must involve an extreme degree of risk,
considering the probability and magnitude of the potential harm to others. Id. Second,
the actor must have actual, subjective awareness of the risk involved, but nevertheless
proceed in conscious indifference to the rights, safety, or welfare of others. Id. Under
the objective element, an extreme risk is “not a remote possibility of injury or even a
high probability of minor harm, but rather the likelihood of serious injury to the
plaintiff. Id. (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). To
establish the subjective component, the plaintiff must show that the defendant knew
about the peril, but his acts or omissions demonstrate that he did not care. Id. at 248.
The risk should be examined prospectively from the perspective of the actor, not in
hindsight. Id. The defendant need not have anticipated the precise manner of harm or
to whom the injury would befall to have had awareness of the extreme risk. Id.
The question presented is whether Appellants created a fact issue as to both
prongs of gross negligence. We conclude that they did not.
To begin, we agree that Appellants produced some evidence that the failed tire
was defective in three ways. The first alleged manufacturing defect was that the tire’s
inner layers contained pockets of trapped air. The second alleged manufacturing defect
13
was that the tire’s inner layers were inadequately bonded together during the molding
and curing process, possibly due to the age of the tire’s raw materials prior to curing.
Appellants argued that the air pockets and inadequate bonding left the tire’s inner layers
free to rub together and exposed to the air, which in turn caused the tire’s inner
structure to degrade and oxidize. All of these problems, Appellants said, left the tire
more vulnerable to the outward inertial load of the tire’s rotation and, thus, more
susceptible to tread separation.
According to Appellants, the problems posed by these manufacturing defects
were compounded by a third defect: the lack of a nylon cap ply, a layer of material that
would have enveloped the steel belts and better helped combat the forces that
contributed to tread separation. Appellants complained that instead of a nylon ply, the
tire incorporated a third steel belt that only increased the tire’s inertial problems.
Appellants presented expert evidence in support of all three of these defect
theories. For instance, as to their trapped air theory, Appellants’ expert testified that he
observed a concave patch of smooth rubber on the inner layers of the tire that indicated
a pocket of trapped air. Appellants also offered evidence of shortcomings in Michelin’s
manufacturing process that might have led to air pockets. According to Appellants’
evidence, a leaky roof at the plant where the tire was manufactured might have let water
drip onto the raw materials of the tire, and when the tire was superheated during the
molding and curing process, even a single droplet of water would have expanded
dramatically, creating a steam blister of trapped air. To that end, Appellants offered
14
evidence that there was rain in the area during the week when the tire was manufactured.
There was also evidence that workers at the plant perspired as they handled the tires
during the building process, which Appellants theorized might have led to the same
sort of steam blisters. Appellants also pointed to the chemicals that were sometimes
used on the raw rubber as a potential source of blisters. Appellants presented a similar
quantum of proof in support of their inadequate-bonding and nylon-cap theories.
However, Appellants offered no evidence that Michelin was subjectively aware
that these alleged manufacturing and design defects posed an extreme degree of risk
but that Michelin nonetheless proceeded in manufacturing the tire with conscious
indifference to the risk. Put simply, there was no evidence demonstrating Michelin’s
awareness that air pockets, inadequate bonding, and the lack of a nylon cap gave rise to
a serious hazard.
Indeed, there was plenty of evidence to the contrary. Michelin’s witnesses
consistently denied that they knew of any defects in the company’s manufacturing and
design process that could be hazardous to customers, and they testified that to the best
of their knowledge, the company proceeded with the utmost caution throughout the
process. For example, as to Appellants’ air-pocket theory, Michelin offered evidence
that whenever the roof leaked, the company hung plastic tarps to make sure that no
water dripped on the tires, and that if any water fell onto the raw materials that could
pose a danger to customers, Michelin would scrap the tire. As to perspiration, Michelin
representatives testified that the plant in question is climate controlled to seventy-two
15
degrees and that they had never seen employees dripping sweat onto the tires. Even
supposing that air or fluid might have initially been present within the tire, Michelin’s
witnesses testified that the company used rollers on the tires during the manufacturing
process to ensure that any air or fluid was pressed out of the inner layers. Two Michelin
witnesses testified that in their decades at Michelin, they had never seen trapped air
between a tire’s belts or at the belt’s edges, and another witness testified that while he
had seen trapped air at least once before, it was a “very, very, very, very” rare
occurrence. And Appellants produced no countervailing evidence to show Michelin’s
actual awareness that this alleged air-pocket defect or the other supposed defects posed
an extreme risk of harm.
Because there was no evidence that Michelin was aware of an extreme risk (and
plenty of evidence to the contrary), we hold that the trial court did not err in granting a
directed verdict on gross negligence. We overrule Appellants’ second issue.
IV. IMPROPER JURY ARGUMENT
The subject of Appellants’ third issue is one of many caustic remarks by
Michelin’s trial counsel. During closing argument, Michelin’s counsel was attempting
to rebut an argument by the other side when he called Appellants’ argument “dishonest
as the day is long.” Appellants did not object to this remark. Instead, they made it the
subject of a motion for new trial. Appellants contend that the denial of their motion
for new trial was reversible error because this jury argument was both improper and
incurable.
16
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam). A trial court abuses
its discretion when it acts in an unreasonable or arbitrary manner or, stated differently,
when it acts without any reference to guiding rules or principles. In re Thetford, 574
S.W.3d 362, 374 (Tex. 2019) (orig. proceeding).
Appellate complaints of improper jury argument must ordinarily be preserved by
timely objection and request for an instruction to disregard, along with a ruling on the
objection. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Typically, a retraction
of the argument or an instruction from the court can cure any probable harm, but in
rare instances the probable harm cannot be cured. Living Ctrs. of Tex., Inc. v. Peñalver,
256 S.W.3d 678, 680 (Tex. 2008) (per curiam). In such instances, the argument is
incurable, and complaint about the argument may be made if preserved through a
motion for new trial. Id.; see Phillips, 288 S.W.3d at 883.
The party claiming incurable harm must establish that, based on the record as a
whole, the offensive argument was so extreme that a juror of ordinary intelligence could
have been persuaded by that argument to agree to a verdict contrary to that to which
he would have agreed but for such argument. Phillips, 288 S.W.3d at 883. The
complaining party must establish that the argument by its nature and degree constituted
such error that an instruction from the court or retraction of the argument could not
remove its effects. Living Ctrs., 256 S.W.3d at 680–81; see Wade v. Tex. Emp’rs Ins. Ass’n,
244 S.W.2d 197, 201 (Tex. 1951) (“We judge by the degree of the vice . . . .”).
17
Examples of incurable arguments may include appeals to racial prejudice;
accusing the opposing party of manipulating a witness without evidence of witness
tampering; comparison of opposing counsel to Nazis experimenting on the elderly; and
other unsupported, extreme, and personal attacks on opposing parties and witnesses.
See Living Ctrs., 256 S.W.3d at 681 (collecting cases); see also, e.g., Showbiz Multimedia, LLC
v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 772 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (holding that a party made incurable argument when referring to the
litigation strategy of a South Asian man as “judicial terrorism and extortion,” along with
other inflammatory comments).
But “[n]ot all personally critical comments concerning opposing counsel are
incurable.” Living Ctrs., 256 S.W.3d at 681. Indeed, less-than-galling attacks on the
veracity of the other side’s arguments are generally held to be curable. For example,
one court held that there was no incurable jury argument when an attorney asked the
jury, regarding opposing counsel, “What kind of snake oil is he selling you?” Metro.
Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.]
2014, no pet.). Another court held that no incurable harm occurred when counsel
accused the other side of “fabrication” and said, “[T]hey can hide behind their lawyers,
and they can hide behind their lie, but what they can’t hide from is the truth.” McKenzie
v. Positive Action Int’l, Inc., No. 01-10-01073-CV, 2012 WL 1454478, at *29–30 (Tex.
App.—Houston [1st Dist.] Apr. 26, 2012, pet. denied) (mem. op.). In another case,
counsel accused the other party of making up one of the key elements of its case at the
18
behest of its attorneys, but the court nonetheless held this argument curable. See Jones
v. Republic Waste Servs. of Tex., Ltd., 236 S.W.3d 390, 400, 403 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied). In still another case, the court found there was no incurable
harm when counsel implied that the other side was “twisting, turning, exaggerating,
repeating over and over, misstatement of facts, until the hope is that some people of
twelve will accept those as true facts.” Beavers on Behalf of Beavers v. Northrop Worldwide
Aircraft Servs., Inc., 821 S.W.2d 669, 680 (Tex. App.—Amarillo 1991, writ denied). And
most salient here, another court held that there was no incurable harm when counsel
said of the other side’s argument, “That’s dishonest.” Hopkins v. Phillips, No. 05-18-
01143-CV, 2019 WL 5558585, at *1, *3 (Tex. App.—Dallas Oct. 29, 2019, pet. denied)
(mem. op.). Michelin’s reference to Appellants’ argument as “dishonest as the day is
long” fits in the mold that these cases have carved for improper but curable remarks.
Moreover, if the question under Phillips is whether this comment could have
swayed an ordinary juror from one side to the other, the effect of this comment is
dwarfed by the other argument and evidence in this case’s massive record. See 288
S.W.3d at 883. The parties conducted a two-week jury trial in which each side
thoroughly made its case, exploring every facet of Michelin’s tire-production process,
its supposed flaws, and their alleged relation to an accident in which two women lost
their lives. While Michelin’s comments are not to be applauded, we doubt that they
added a great deal to that mass of proof and persuasion.
19
Michelin’s improper argument therefore did not cause incurable harm. We hold
that the trial court did not abuse its discretion by denying Appellants’ motion for new
trial, and we overrule Appellants’ third issue. See R.R., 209 S.W.3d at 114.
V. EVIDENCE OF DAMAGES
In their fourth issue, Appellants assert that the jury’s finding of no damages is
contrary to the great weight and preponderance of the evidence. Citing this court’s
opinion in Hammett v. Zimmerman, Appellants argue that a jury is not free to award zero
damages where there is uncontroverted evidence that establishes an objective injury,
such as Witt’s broken bones. See 804 S.W.2d 663, 664–66 (Tex. App.—Fort Worth
1991, no writ) (citing, among many others, Crowe v. Gulf Packing Co., 716 S.W.2d 623,
624 (Tex. App.—Corpus Christi–Edinburg 1986, no writ)).
However, Hammett and its forebears like Crowe have soundly been distinguished
in cases where the jury finds no liability. See Lehmann v. Wieghat, 917 S.W.2d 379, 384–
85 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (distinguishing Hammett on this
account); Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 635 (Tex. App.—Houston [1st
Dist.] 1993, writ denied) (distinguishing Crowe on this account); see also Adams v. Donahue,
No. 07-97-0266-CV, 1998 WL 483379, at *6 (Tex. App.—Amarillo Aug. 18, 1998, no
pet.) (mem. op.). “It has long been the law in Texas that a finding of zero damages,
even if contrary to the uncontroverted evidence, is rendered immaterial[] by a finding
of no liability.” Ramsey, 853 S.W.2d at 635 (citing S. Pine Lumber Co. v. Andrade, 124
S.W.2d 334, 335 (Tex. [Comm’n Op.] 1939)). A zero-damage award presents no
20
reversible error when the jury finds that the defendant was not liable, because even if
damages were awarded, the trial court would still be required to enter a take-nothing
judgment. Id. Thus, in Ramsey, a finding that a product was not defective obviated the
need to consider whether the evidence allowed a zero-damage award. Id.
Following the jury verdict, Appellants voluntarily settled and dismissed their
claims against the only party that was found to have any liability for the collision,
Morgans of Briar Oaks. Morgans of Briar Oaks is not a party to this appeal. The only
defendant who remains involved in this appeal is Michelin, but the jury found that
Michelin’s tire was not defective and that Michelin had no liability for the collision. It
is therefore immaterial whether the evidence of injury and suffering permitted a zero-
damage award, because the only remaining appellee was already entitled to a take-
nothing judgment. We overrule Appellants’ fourth issue.
VI. SEALED RECORD
In their fifth and final issue, Appellants bring multiple challenges against the trial
court’s decision to seal certain portions of the record. We address each of these
challenges in turn.
A. Did Michelin Satisfy the Substantive Dictates of Rule 76a?
To begin, Appellants argue that Michelin has failed to justify sealing the records
under Rule 76a. Appellants assert that Michelin failed to carry its burden under Rule
76a because Michelin made only a conclusory case for its interest in sealing the records.
As to the vast majority of the sealed documents and testimony, we disagree and hold
21
that Michelin demonstrated a specific and substantial interest in sealing these records.
However, as we explain, we hold that Michelin failed to satisfy Rule 76a with regard to
a subset of the sealed records.
We review the trial court’s sealing decisions for an abuse of discretion. Gen. Tire,
Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); Nguyen v. Dall. Morning News, L.P.,
No. 2-06-298-CV, 2008 WL 2511183, at *3 (Tex. App.—Fort Worth June 19, 2008, no
pet.) (mem. op.) (per curiam). Rule 76a provides the standard and procedures for
sealing court records. See Gen. Tire, 970 S.W.2d at 523. The rule creates a presumption
that all court records are open to the public and allows trial courts to seal court records
only upon a showing of all of the following:
(a) a specific, serious and substantial interest which clearly outweighs:
(1) this presumption of openness;
(2) any probable adverse effect that sealing will have upon the
general public health or safety;
(b) no less restrictive means than sealing records will adequately and
effectively protect the specific interest asserted.
Tex. R. Civ. P. 76a(1).
Rule 76a does not require the court to make factual findings, but rather requires
it to balance the public’s interest in open court proceedings against an individual
litigant’s personal or proprietary interest in privacy. Gen. Tire, 970 S.W.2d at 526; In re
Browning-Ferris Indus., Inc., 267 S.W.3d 508, 512 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (combined appeal & orig. proceeding). The party moving for sealing has the
22
burden to rebut the presumption of openness by a preponderance of evidence. Nguyen,
2008 WL 2511183, at *4.
“The specific interests to be considered for sealing can be ‘financial, reputational,
or otherwise.’” Cortez v. Johnston, No. 06-13-00120-CV, 2014 WL 1513306, at *4 (Tex.
App.—Texarkana Apr. 16, 2014, no pet.) (mem. op.) (quoting McAfee v. Weiss, 336
S.W.3d 840, 845 (Tex. App.—Dallas 2011, pet. denied)). “That a document contains
trade secret information is a factor to be considered in applying this sealing standard.”
In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 614 (Tex. 1998) (orig. proceeding).
To support its motion, Michelin submitted an affidavit by Michael Johnson, the
personnel manager at the plant where the failed tire was manufactured. Johnson
attested that the evidence in question related to Michelin’s trade secrets, and his
testimony closely aligned with the six factors we use to judge whether information
constitutes a trade secret.6 According to Johnson, the tire manufacturing industry is
highly competitive and heavily dependent upon proprietary innovation, research, and
development. He explained that Michelin closely guarded the secrecy of its processes
6
To determine whether a trade secret exists, we weigh six factors in the context
of the surrounding circumstances: (1) the extent to which the information is known
outside of the business; (2) the extent to which it is known by employees and others
involved in the business; (3) the extent of measures taken to guard the secrecy of the
information; (4) the value of the information to the business and to its competitors;
(5) the amount of effort or money expended in developing the information; and (6) the
ease or difficulty with which the information could be properly acquired or duplicated
by others. In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex. 2009) (per curiam) (orig.
proceeding).
23
in order to preserve a competitive edge and to develop quality products. By Johnson’s
account, Michelin had spent many years and many millions developing its
manufacturing techniques, machinery, and methods of production, and Michelin’s
competitors could not duplicate Michelin’s approach without a similar investment. He
testified that these processes were not known to Michelin’s competitors or the general
public and that Michelin takes “extraordinary measures” to maintain their secrecy:
For one, [Michelin] usually does not seek patents for its processes and
machinery for fear of losing their secrecy. Also, [Michelin] plants are not
open to the public and are subject to a strict security regiment [sic].
Furthermore, [Michelin] employees acknowledge the proprietary
processes and equipment and other trade secrets, and [they] agree not to
divulge that proprietary information and [those] trade secrets to the public
or to a competitor.
He projected that allowing the trade secrets in the court records to be divulged could
result in heavy losses for the company and its thousands of employees. According to
Johnson, Michelin had a specific, serious, and substantial interest in maintaining the
confidentiality of the information at issue. And it was Johnson’s opinion that there was
no less restrictive way to preserve the integrity of this information than to permanently
seal the records in question.
For the vast majority of the sealed records, there is reason to accept Johnson’s
characterization of the records’ nature and content. For instance, the trial court sealed
a set of trial exhibits that consisted of tire specifications, guides concerning the design
and failure of Michelin’s tires, and internal documents for analyzing the performance
and failure of tires. The trial court also sealed Appellants’ summary judgment response,
24
which incorporated deposition transcripts wherein Michelin personnel described the
company’s inner workings and production process. Likewise, the trial court sealed
selected trial testimony in which witnesses discussed the intimate details of Michelin’s
tire specifications, production process, and quality control.7 The trial court could have
rationally determined that these documents contained commercially valuable insights
not known outside of Michelin. We agree that Michelin carried its burden to
demonstrate a specific, serious, and substantial interest in sealing these records that
outweighed the presumption of openness, as well as that no less restrictive means would
suffice.
We cannot say the same, however, for one specific set of documents: Appellants’
response to Michelin’s motion to exclude Cottles’s testimony, Appellants’ motion to
reconsider the exclusion of Cottles’s testimony, and the proof that was appended to
these two filings. As they appeared in the sealed clerk’s records, these documents were
already redacted to prevent exposure of Michelin’s trade secrets. These redactions
prove that there was a less restrictive means of protecting Michelin’s interests with
respect to these documents, because without the redacted content, these filings and
7
The special procedures of Rule 76a apply only to the sealing of “court records,”
a term that includes “all documents of any nature filed in connection with any matter
before any civil court.” Gen. Tire, 970 S.W.2d at 523; Tex. Voices for Reason & Justice, Inc.
v. City of Argyle, No. 02-16-00052-CV, 2017 WL 1173837, at *2 (Tex. App.—Fort Worth
Mar. 30, 2017, no pet.) (mem. op.). Appellants do not dispute the trial court’s implied
finding that these trial transcripts constitute court records.
25
their attached proof were entirely free of anything that could be considered a Michelin
trade secret.
For example, Appellants’ “Response to Michelin’s Motion to Exclude Testimony
of Troy Cottles” and the attached affidavits were heavily redacted. As redacted, they
only touched upon topics having little to do with Michelin’s confidential information:
tire production in general; accident reconstruction; Cottles’s qualifications, process, and
physical inspection of the failed tire; orders and opinions from other courts deeming
Cottles’s methods reliable; and quotations from publicly available literature that were
offered in defense of his opinions.
Similarly, Appellants’ “Motion for Reconsideration and Clarification of Letter
Regarding Testimony of Troy Cottles” made only a brief, high-level argument urging
the trial court to reassess its order excluding Cottles’s testimony. Any mention of
Michelin’s internal operations was redacted, and as redacted, the motion drew upon
only publicly available literature supporting Cottles’s views, photographs of the failed
tire, a recall notice for a Toyo tire, and a deposition from a case against Goodyear rather
than Michelin. None of this content derived from Michelin’s confidential information.
These redactions concretely showed that Michelin’s interests with regard to these
few documents could be protected by less restrictive means. See Al Otro Lado, Inc. v.
McAleenan, No. 17-cv-02366-BAS-KSC, 2019 WL 6220898, at *3 (S.D. Cal. Nov. 21,
2019) (denying request to seal because the documents’ “most sensitive details
appear[ed] to have already been redacted” and the remainder did not delve into
26
confidential subjects); Wetzel v. CertainTeed Corp., No. C16-1160JLR, 2019 WL 1236859,
at *5 (W.D. Wash. Mar. 18, 2019) (denying seal because the documents had “already
been appropriately redacted”); Airbus DS Optronics GmbH v. Nivisys LLC, No. CV-14-
02399-PHX-JAT, 2017 WL 992348, at *2 (D. Ariz. Mar. 15, 2017) (“Because it is already
sufficiently redacted, the Court finds no compelling reason to cause the exhibit to be
filed under seal.”); Reed v. Chase Home Fin., LLC, No. Civ. A. 11-0412-WS-C, 2012 WL
4434751, at *2 & n.2 (S.D. Ala. Sept. 26, 2012) (similar). We conclude that the trial
court abused its discretion by sealing these documents. To hold otherwise would
disserve the principle of openness that is embodied in Rule 76a. 8
But aside from these two filings and their attached documents, Michelin satisfied
its initial burden under Rule 76a with regard to the remaining sealed records. We
therefore proceed to address Appellants’ other arguments for unsealing the remaining
sealed records.
8
The enactment of Rule 76a was a sweeping reform that Justice Doggett
described as “Courtroom Glasnost,” and he argued that it served the public interest in
four ways. See Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts:
Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643, 648, 684 (1991). First, greater
access to judicial records promotes public health and safety because “secrets buried in
court records, literally, kill and maim,” with the prime examples being hazardous
products that might otherwise be avoided if their dangers were disclosed to the public.
Id. at 648–49. Second, access to judicial records guards against the loss and suppression
of essential records. Id. at 650. Third, access fosters integrity in the judiciary in that
free disclosure acts as a check on foul play from the bar and the bench. Id. at 650–51.
Fourth, Justice Doggett argued that “greater access strengthens democracy” because
“[p]ublic court records are rich with democracy’s indispensable raw material:
information.” Id. at 652–53.
27
B. Was the Sealing Order Untimely?
Next, Appellants assert that the sealing order must be reversed because it was
untimely under Rule 76a(5), which requires a temporary sealing order to set the time
for a hearing and to direct the movant to immediately give the public notice. See Tex.
R. Civ. P. 76a(5).
However, Rule 76a(5) pertains only to temporary sealing orders. By the time
Appellants appealed, the trial court had rendered a permanent sealing order using the
correct procedures. The time-oriented language contained in Subsection 5 does not
apply to this permanent sealing order. Ergo, we do not agree with Appellants’
contention that the failure to comply with Subsection 5’s mandates is “fatal” to the trial
court’s permanent sealing order.
It is true that earlier in the case, the trial court rendered a temporary sealing order.
But any issues stemming from that order are now moot. “Appeals of some
interlocutory orders become moot because the orders have been rendered moot by
subsequent orders.” Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex. 2009); see Pearland
Capital Grp., LP v. Horizon United Grp. Int’l, LLC, No. 01-11-00324-CV, 2011 WL
4611533, at *2 (Tex. App.—Houston [1st Dist.] Sept. 30, 2011, no pet.) (mem. op.)
(collecting cases from different contexts). For example, a permanent injunction will
render an appeal of a temporary injunction moot. Isuani v. Manske-Sheffield Radiology
Grp., P.A., 802 S.W.2d 235, 236 (Tex. 1991) (per curiam). In the same way, any
28
complaint concerning the temporary sealing order became moot when the trial court
rendered a permanent sealing order in compliance with Rule 76a.
In sum, Appellants’ timeliness argument is (1) moot with respect to the
temporary sealing order and (2) inapplicable to the permanent sealing order.
C. Does the Fact that Some of the Sealed Records are Already Part of the
Public Record Preclude Their Sealing?
Lastly, Appellants contend that the permanent sealing order must fall because
some of the records sealed were already part of the public record. Appellants assert
that some of the sealed documents were available in the unsealed files of other cases,
whether from the PACER system of the federal courts or the websites of Texas state
courts.
We agree that the records’ status as part of the public domain should inform the
question of whether to seal them. For instance, the Fourth Circuit has recognized that
in determining whether or not to seal a record, it was important to weigh “whether the
public has already had access to the information contained in the records.” In re Knight
Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984) (citing Nixon v. Warner Commc’ns, Inc., 435
U.S. 589, 597–608, 98 S. Ct. 1306, 1311–17 (1978)); see Va. Dep’t of State Police v. Wash.
Post, 386 F.3d 567, 575 (4th Cir. 2004) (same); see also Kamakana v. City & Cty. of Honolulu,
447 F.3d 1172, 1184 (9th Cir. 2006) (holding that the public availability of documents
weighed against the case for sealing).
29
However, the Fourth Circuit balanced this consideration against “whether the
records are sought for improper purposes, such as . . . unfairly gaining a business
advantage.” Knight Publ’g, 743 F.2d at 235. The Tenth Circuit struck a similar balance
when it recognized that “business information that might harm a litigant’s competitive
standing” might justify sealing records even though the underlying materials were
“already entered into the public record,” especially when the trial court treated that
information in a sensitive manner to preserve its confidentiality. Braun v. Medtronic
Sofamor Danek, Inc., 719 Fed. App’x 782, 801 n.8 (10th Cir. 2017); see United States v.
Kravetz, 706 F.3d 47, 63 (1st Cir. 2013) (directing the district court to balance a privacy
interest in medical information against the “prior publication” of that information).
We agree with this balanced treatment. If the information in the case at hand is
truly sensitive, the fact that the information is available in one case among the haystack
of thousands on PACER should not necessarily require that it be available in all other
cases, for there is no guarantee that those without an unlimited budget for legal research
will find that particular needle. That is, there is something to be said for preserving the
scarcity of sensitive information, even if its complete secrecy cannot be attained. This
is perhaps especially true when the trial court handles the records sensitively throughout
the case at hand, see Braun, 719 Fed. App’x at 801 n.8, because as the Supreme Court
recognized in Nixon, the trial court’s informed discretion may be the best barometer of
whether there is a need to refrain from further publicizing confidential information. See
435 U.S. at 599, 98 S. Ct. at 1312–13.
30
Here, Appellants demonstrated that some of the sealed documents were already
part of the public record. But the trial court recognized the risk that competitors might
nonetheless gain an unfair business advantage if the availability of these documents
were expanded. Consistent with that risk, the trial court sensitively handled the
information when it entered a protective order to guard against disclosure early in the
discovery process, rendered an interim sealing order to prevent disclosure midstream
of the litigation, and signed a permanent sealing order after the trial concluded. In light
of that sensitive handling and Michelin’s demonstrated interest in preserving its
competitive advantage, we hold the trial court did not abuse its discretion in sealing
these documents, despite the prior public availability of some of them.
D. Summary
We hold that the trial court abused its discretion by sealing Appellants’ response
to Michelin’s motion to exclude Cottles’s testimony, Appellants’ motion to reconsider
the exclusion of Cottles’s testimony, and the proof that was appended to these two
filings. We hold that the trial court did not abuse its discretion in sealing all other
records in question. We therefore sustain Appellants’ fifth issue in part.
VII. CONCLUSION
We reverse the trial court’s sealing order to the extent that it seals Appellants’
response to Michelin’s motion to exclude Cottles’s testimony, Appellants’ motion to
reconsider the exclusion of Cottles’s testimony, and the attached proof, and we render
31
judgment unsealing those records. We affirm the trial court’s judgment and sealing
order in all other respects.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: September 10, 2020
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