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Case 3:10-cv-00874-M Document 191 Filed 08/17/11 Page 1 of 12 PageID 5474



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION





Civil Action No.
3:10-cv-00874-M


BRITTNE WILSON, Individually and as Next
Friend of G. W., a Minor Child,


Plaintiffs,

v.

FORD MOTOR COMPANY; TRW
AUTOMOTIVE HOLDINGS CORP. F/K/A/
TRW, INC.; TRW AUTOMOTIVE, INC.;
TRW AUTOMOTIVE US, L.L.C.; TRW
VEHICLE SAFETY SYSTEMS, INC.; and
TRW SAFETY SYSTEMS, INC.;


Defendants.

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FORD MOTOR COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT

RE PLAINTIFFS' GLAZING AND MARKETING/WARNINGS CLAIMS

Pursuant to Rule 56, Federal Rules of Evidence, Defendant Ford Motor Company

("Ford") in the above entitled and numbered cause of action, files this Motion for Partial

Summary Judgment as to Plaintiffs' alleged glazing and marketing/warnings claims because

Plaintiffs have not disclosed any experts and evidence to support those claims. The following is

Ford's brief in support of its motion:

I. INTRODUCTION

Plaintiffs have plead claims in this automotive products liability action, both in strict

products liability and negligence, for alleged glazing design defect and marketing/warnings

defects in the 2004 Ford Expedition.

In a complex product liability case such as this one, it is imperative that Plaintiffs offer

evidence in support of their allegations by way of expert testimony. However, the deadline to

designate experts in this case has come and gone and Plaintiffs did not identify a single liability

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witness that will support Plaintiffs' claims of defective glazing and marketing/warnings. (App. at

011-017) Ford is, therefore, entitled to summary judgment on Plaintiffs' causes of action that are

not supported by expert testimony.1 Ford has made numerous attempts to obtain a stipulation to

dismiss the glazing and marketing/warnings claims but with no success. Despite the fact that

Plaintiffs acknowledge that the glazing claim is "moot," they refuse to stipulate to the dismissal.

Similarly with the marketing/warnings claims, Plaintiffs know that they do not have a valid claim

here yet they refuse stipulate to dismiss this claim also. Instead, Plaintiffs have forced Ford to

file another motion to dismiss unsupported claims and, as a result, burdening this Court with a no

evidence motion.

A.

The Crash

II. BACKGROUND FACTS

This complex products liability case arises from a rollover crash. On May 4, 2008,

Plaintiff Brittne Wilson was driving her boyfriend’s 2004 Ford Expedition west on Highway 287

when, based on the police report and witness testimony, she either changed lanes without

signaling or due to inattention drifted left into an occupied lane, and contacted a passing vehicle.

(App. at 001-005) Ms. Wilson then swerved and lost control. (App. at 001-002) The vehicle

entered the median and rolled over numerous times. (App. at 001-002) Plaintiffs' accident

reconstruction expert, Robert Caldwell, opines that the subject vehicle rolled 6 1/4 times. (App.

at 006-007) Todd Hoover, Defendants’ accident reconstruction expert, opines the subject vehicle


1 Earlier in this litigation, Plaintiffs acknowledged that they did not intend to pursue defect
claims related to roof design and lack of Electronic Stability Control ("ESC") alleged in
Plaintiffs' Complaint. Despite this acknowledgment, Plaintiffs refused to voluntarily dismiss
those claims and Ford was forced to file a Motion to Dismiss Plaintiffs' roof design and lack of
ESC defect allegations. The Court agreed with Ford and dismissed Plaintiffs' roof design defect
and ESC claims with prejudice on April 25, 2011. (App. at 018)

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rolled 5 1/4 times. (App. at 008-010) Regardless, whether the subject vehicle rolled 6 1/4 or 5

1/4 rolls, this is a severe crash. The roll distance was approximately 197 feet. (App. at 008-010)

The police officer concluded that Plaintiff's unsafe lane change and possible failure to control

speed were factors and conditions causing the subject crash. (App. at 019-020) Ms. Wilson

sustained injuries during the crash. Despite Ms. Wilson’s driving actions, including inattention,

swerving, and overcorrections that caused the crash, Plaintiffs allege Ford is at fault because the

Expedition should have prevented Plaintiffs’ injuries.

B.

Ford's efforts to dismiss the glazing and marketing/warnings claims

Back on May 31, 2011, Ford requested that Plaintiffs dismiss the glazing claim. (App. at

021) Ford continued to follow-up with Plaintiffs in multiple correspondences. (App. at 022-

023) On June 8, 2011, Ford's counsel spoke with Plaintiffs' counsel at a deposition regarding

Plaintiffs' glazing claim. Plaintiffs' counsel acknowledged that Plaintiffs are not pursuing a

glazing claim but may want to use some glazing documents. Plaintiffs' counsel promised to

respond to Ford's request. Not hearing anything from Plaintiffs, Ford sent a follow-up letter

memorializing the June 8, 2011 conversation and again asking for information in order to resolve

this issue. (App. at 024)

Despite Plaintiffs' acknowledgement that they are not pursuing a glazing claim, they

continued to ignore Ford's letters to stipulate to the dismissal. On August 1, 2011, Ford notified

Plaintiffs that it is filing a motion for partial summary judgment regarding Plaintiffs' glazing and

marketing/ warnings claims, and exemplary damages. (App. at 025) Plaintiffs responded stating

that the glazing claim is "moot." (App. at 026) Again, Ford requested that Plaintiffs stipulate to

dismiss the glazing and marketing/warnings claims. (App. at 027-028) On August 2, 2011,

Plaintiffs agreed to sign a stipulation of dismissal of Plaintiffs' glazing and marketing/warnings

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claims. (App. at 029) On the same day, Ford prepared a stipulation and sent it to Plaintiffs.

(App. at 030) Plaintiffs requested Ford to change language to the stipulation. (App. at 031-036)

The parties agreed to extend the deadline for Ford to file its motion for summary judgment

regarding the glazing and marketing/warnings claims while the parties finalize the stipulation to

dismiss. [DE 176] On August 11, 2011, having not received a final answer from Plaintiffs

regarding the stipulation, Ford followed up again with Plaintiffs and again enclosed the

stipulation to dismiss and order. (App. at 037-042) Plaintiffs responded stating that the

stipulation is "good" but another Plaintiffs' counsel needs to review it and promised to respond by

Monday morning August 15, 2011. (App. at 043) Not surprisingly, Ford did not hear from

Plaintiffs on Monday morning. Therefore, Ford sent an email to Plaintiffs stating that it did not

hear from Plaintiffs as promised. (App. at 044) Plaintiffs finally responded on August 17, 2011,

stating that Plaintiffs' counsel was going to call Ford's counsel regarding those claims. Ford

responded stating that it has made numerous efforts since May 31, 2011, to enter into a

stipulation to dismiss those claims and that it is filing a no evidence motion. (App. at 045)

Despite the fact that Plaintiffs acknowledge that the glazing claim is "moot" and they have agreed

to stipulate to the dismissal of the glazing and marketing/warnings claims, they refuse to sign a

stipulation to dismiss those claims. (App. at 045)

C.

Plaintiffs' Product Liability Allegations

In their Complaint, Plaintiffs allege a design defect regarding the glazing and also

claimed that the "warnings and/or instructions provided by Defendants fail to adequately warn

or instruct of the hazards associated with the Ford SUV, occupant restraint system components,

and/or the TRW seat belt system." (App. at 046-047)

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After months of discovery, including Plaintiffs' disclosure of experts and experts reports

and Plaintiffs' experts' depositions, Plaintiffs do not have any experts to support the vaguely

plead claims from their Complaint. Therefore, a dismissal of the glazing and marketing/warnings

claims is appropriate.

III. LEGAL STANDARDS

A.

Summary Judgment Standard

Summary judgment is proper if a party with the burden of proof fails to make a showing

sufficient to establish the existence of an element that is essential to that party's case. See

generally Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986); see also TEX. R. Civ. P. 166a(i) (explaining "no evidence" motion, under

Texas rule a party may move for summary judgment "[a]fter adequate time for discovery" on the

ground that there is no evidence of one or more essential elements of a claim); Western lnvs., Inc.

v. Urena, 162 S.W.3d 547, 550 (Tex.2005).

In deciding a motion for summary judgment, the court must view the factual evidence and

draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue

for trial exists only "if the evidence is such that a reasonable jury could return a verdict for the

non-moving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). A no-evidence motion will be sustained when (1) there is an absence of

evidence of a vital fact, (2) the court is barred by rules of law or evidence from considering the

evidence offered in support of a vital fact, (3) the evidence offered is no more than a mere

scintilla, or (4) the evidence conclusively establishes the opposite of the fact at issue. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). The moving party will prevail,

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unless the respondent produces summary judgment evidence raising a genuine issue of material

fact. See Tex.R. Civ.P. 166a(i); Urena, 162 S.W.3d at 550.

Summary judgment is not a "disfavored procedural shortcut," but rather an integral part of

the Federal Rules of Civil Procedure which are designed to "secure the just, speedy and

inexpensive determination of every action." See Street v. J.C. Bradford & Co., 886 F.2d 1472,

1478 (6th Cir. 1989) citing Celotex, 106 S.Ct. at 2555 (internal citations omitted).

B.

Texas Requires Proof of Defect and Causation

A Texas product liability claim requires proof that:

1)

a defect existed in the product at the time it left the manufacturer's control;

and

2)

the defect was the producing cause of plaintiff's damages.

Lucas v. Texas Indust., Inc., 696 S.W.2d 372, 377 (Tex. 1984).

Proof of a defect is a required element of all theories of recovery, and the required proof

of a defect is "functionally identical" regardless of whether the claim is negligence, strict liability

or breach of warranty. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 665 (Tex. 1999);

see also Restatement (Third) of Torts, §2, cmt. n (1998). In addition, expert testimony is

generally required in order to establish causation in a product liability case. See Mack Trucks,

Inc. v. Tame:, 206 S.W.3d 572, 583 (Tex.2006) (expert testimony needed to establish causation

in products liability case where plaintiff alleged that defect in truck's fuel and battery systems

caused fire); Nissan Motor Co v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004) (expert testimony

required to establish causation in unintended acceleration case involving possible product

defect).

/ / /

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IV. ANALYSIS

This is essentially a "no-evidence" motion for summary judgment regarding the glazing

and warnings claims. Plaintiffs have failed to provide evidence to prove the existence of a defect

in the glazing or marketing/warnings for the subject vehicle, much less that any such defect

caused injury to Plaintiffs. Ford is entitled to summary judgment as a matter of law on all

pleaded claims

for

recovery premised on allegations of defective glazing and

marketing/warnings.

A.

No Evidence to Support Glazing Defect Claim

Plaintiffs' expert disclosure deadline was March 31, 2011. Plaintiffs disclosed six

experts, four liability experts and two damages experts. (App. at 048-064) However, Plaintiffs

did not disclose any experts to address the glazing and marketing/warnings claims. Further,

Plaintiffs' experts were deposed and none offered any opinions to support either claim. Plaintiffs'

biomechanics expert Martha Bidez testified:

Q.

A.

Okay. Any opinions in regards to glazing?

No.

(App. at 065-066)

Similarly, Plaintiffs' air bag expert Geoffrey Mahon testified:

Q.

A.

You're not going to offer any opinions regarding glazing?

No.

(App. at 067-068)

Plaintiffs' accident reconstruction expert Robert Caldwell also testified that he did not

have an opinion that the glazing in the subject vehicle was defective, admitting:

So your opinions in regards to glazing are limited to when the glass

Q.
broke and you saw evidence of broken glass at the scene, but not that the

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glazing – there's a defect of that sort of thing in regards to this case, is that
correct?

A.

That's correct.

(App. at 069-070)

Plaintiffs' seat belt expert Lou D'Aulerio also admitted that he did not have any opinions

on glazing, testifying:

You're not going to be giving any opinions in regards to glazing; is that

Q.
correct?

A.

That is correct, I have no opinions on glazing.

(App. at 071-072)

Following confirmation at Plaintiffs' experts' depositions that none of them intended to

opine on the existence of a glazing defect or that a glazing defect caused any injury, Ford tried to

obtain Plaintiffs' agreement to dismiss their glazing claims. (App. at 021-045) Although

Plaintiffs acknowledge that the glazing claim issue is "moot," they refuse to stipulate to dismiss

the claim. (App. at 026) Despite months of discovery and costly expert depositions, Plaintiffs

have failed to identify or provide any evidence of a glazing defect in the 2004 Ford Expedition or

that any glazing defect caused injury. Because none of Plaintiffs' experts support a glazing defect

claim, or contradict Ford's glazing expert, Plaintiffs cannot prevail on their glazing claims, and

summary judgment on this claim is proper. Fed. R. Civ. P. 56; Lucas, 696 S.W.2d at 377 Urena,

162 S.W.3d at 550.

B.

No Evidence of Marketing/Warnings Defect

Similarly, Plaintiffs have failed to provide any expert opinion or other evidence to

support the allegation that Ford failed to provide adequate warnings or information regarding the

2004 Ford Expedition or any of its components. (App. at 073-089)

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1.

Expert Testimony Required

A marketing/warnings defect claim, like the one plead in this case, can be premised on

either an allegation of failure to warn or an allegation of failure to provide adequate

instructions for safe use. USX Corp. v. Salinas, 818 S.W.2d 473, 483 (Tex. App.--San Antonio

1991, writ denied); see Lujan v. Tampo Mfg. Co., Inc., 825 S.W.2d 505, 510 (Tex. App. — El

Paso 1992, no writ history) ("A `marketing defect' involves a failure to warn, or warn adequately,

of dangers or risks of harm or the failure to provide instructions for safe use of a particular

product."); Williams v. Southern Pac. Transp. Co., 804 S.W.2d 132, 138-39 (Tex. App.--Houston

[1st Dist.] 1990, writ denied). In both instances, expert testimony is required since the area

of automobile warnings and instructions is not a matter wit hin the scope of knowledge of

the average person. See generally Goodyear Tire and Rubber Company v. Rios, 143

S.W.3d 107, 116 (Tex. App. — San Antonio 2004, writ denied); Selig v. BMW of North

America, Inc., 832 S.W.2d 95 (Tex. App.— Houston [14th Dist.] 1992, no writ);

Hernandez v. Nissan Motor Corp., 740 S.W.2d 894 (Tex. App. — El Paso 1987, writ

denied); cf. Rehabilitative Care Systems of America v. Davis, 73 S.W.3d 233 (Tex. 2002)

("We disapprove of the Court of Appeals' statement that expert testimony was not required

to establish the appropriate standard of care in this case.").

The deadline for expert disclosure has come and gone in this case and Plaintiffs never

designated an expert to testify on any warnings issues. Plaintiffs have not produced any evidence

of alternative instructions, and Plaintiffs have not produced any witness to criticize any of the

warnings and instructions accompanying the 2004 Ford Expedition. With the complete absence

of any expert testimony to support the warnings allegations in this case, Ford is entitled to

judgment as a matter of law on Plaintiffs' warnings claims.

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2.

No evidence that a different warning or instruction would have
changed the outcome in this accident.

Proof of causation-in-fact is not excused in warnings defect cases. See GMC v. Saenz on

behalf of Saenz, 873 S.W.2d 353, 357 (Tex. 1993) ("A plaintiff must show that adequate

warnings would have made a difference in the outcome, that is, that they would have been

followed."). There is no presumption that a different warning would have been heeded when the

instructions which were given would have prevented the accident if followed. GMC v. Saenz,

873 S.W.2d 353, 357 (Tex. 1993). To prove causation, Plaintiff must show that a different

warning would have prevented the injuries in this case. Id; see also Stewart v. Transit Mix

Concrete & Materials, Co., 988 S.W.2d 252 (Tex. App - Texarkana 1998). Plaintiff has offered

no evidence that a different warning would have would have prevented the injuries that occurred

in this case.

There is no evidence to support this essential element of Plaintiffs'

marketing/warnings defect claim and Ford is entitled to summary judgment.

V. CONCLUSION AND PRAYER

Ford is entitled to summary judgment when there is no evidence to legally support

Plaintiffs' product liability claims based on glazing and marketing/warnings defects. Plaintiffs

must prove that the glazing in the subject vehicle is defective and that the marketing/warnings

were inadequate, and that the established defects caused injury to Plaintiffs. Plaintiffs cannot

meet their burden on either element (defect and causation) for the glazing and warnings claims

plead in their Complaint. Accordingly, Ford respectfully requests that the Court grant this

motion for summary judgment and that all of Plaintiffs' glazing and marketing/warnings claims

be dismissed with prejudice.

/ / /

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Respectfully submitted,

BOWMAN AND BROOKE LLP


By: s/ Iman R. Soliman









Barry C. Toone
Texas Bar No. 24056875
[email protected]
Thomas M. Klein
Texas Bar No. 11566000
[email protected]
Iman R. Soliman
Arizona Bar No. 021333
Admitted to the Northern District of Texas
on July 12, 2010
[email protected]
2901 North Central Avenue, Suite 1600
Phoenix, Arizona 85012
Telephone: (602) 643-2300
Fax: (602) 248-0947

Adolfo R. Rodriguez, Jr.
Texas Bar No. 24007934
[email protected]
Wilson C. Aurbach
Texas Bar No. 24036160
[email protected]
RODRIGUEZ, DAVIS, GHORAYEB, GERSCH &
TOWNS, P.C.
1700 Pacific Avenue, Suite 3850
Dallas, Texas 75201
Telephone: (214) 220-2929
Fax: (214) 220-2920

ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY

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CERTIFICATE OF CONFERENCE




Counsel for Ford Motor Company, Iman R. Soliman, has met and conferred with counsel
for Plaintiffs on the issues of Plaintiffs' glazing and warnings claims as summarized in the
motion.


s/ Iman R. Soliman
Iman R. Soliman










CERTIFICATE OF SERVICE



The undersigned hereby certifies that a true and correct copy of the above and foregoing
document was filed electronically with the clerk of the court for the U.S. District Court, Northern
District of Texas, using the electronic case filing system of the court. The electronic case filing
system sent ''Notice of Electronic Filing" to the following attorneys of record on this the 17th day
of August, 2011.

Lee Brown
[email protected]
Eric Porterfield
[email protected]
THE BROWN LAW FIRM
750 North St. Paul Street, Suite 1680
Dallas, Texas 75201
Attorneys for Plaintiffs

David R. Tippetts
[email protected]
Amber Skillern
[email protected]
WEINSTEIN, TIPPETTS & LITTLE LLP
7660 Woodway, Suite 500
Houston, Texas 77063
Attorneys for TRW Defendants

Adolfo R. Rodriguez, Jr.
[email protected]
Wilson C. Aurbach
[email protected]
RODRIGUEZ, DAVIS, GHORAYEB,
GERSCH & TOWNS, P.C.
1700 Pacific Avenue, Suite 3850
Dallas, Texas 75201
Attorneys for Ford Motor Company


Ted B. Lyon
[email protected]
Bill Zook
[email protected]
TED B. LYON & ASSOCIATES, P.C.
Town East Tower, Suite 525
18601 LBJ Freeway
Mesquite, Texas 75150
Attorneys for Plaintiffs




s/ Iman R. Soliman
Iman R. Soliman









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