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NUMBER
13-00-537-CV

COURT OF
APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
- EDINBURG

ALLIEDSIGNAL, INC. AND

DAIMLER
CHRYSLER CORPORATION, Appellants,

v.

YVONNE MORAN,
INDIVIDUALLY, AS NEXT

FRIEND OF
AUTUMN RHAE MORAN, AND AS

PERSONAL
REPRESENTATIVE OF THE

ESTATE OF
BART MORAN, DECEASED, Appellee.

On appeal from the
County Court at Law No. 1

of Nueces County,
Texas

OPINION ON
REHEARING

Before the Court En Banc

Opinion on rehearing by Justice Garza

In this opinion, we review the appeals
of two defendants from a money judgment entered on a jury verdict in a
products liability action.
(1) The action arises from the death of Bart Moran, a motorist
who was killed when the seat belt in his Dodge Caravan failed to restrain
him in a collision with another automobile. We reverse the judgment in
part and affirm in part.

Background

Mr. Moran's wife and daughter ("the
Plaintiffs") sued three defendants for causing Mr. Moran's death. One
defendant was AlliedSignal, Inc. ("Allied"), the company which
manufactured the seat belt buckle in Mr. Moran's Dodge Caravan. Among
other things, the Plaintiffs asserted claims for strict products liability
based on a defect in the design of the seat belt buckle. The Plaintiffs
also sued the manufacturer of the Dodge Caravan, DaimlerChrysler
Corporation ("DCC"), asserting claims for strict products liability based
on a design defect in the seat belt buckle. The third defendant sued by
the Plaintiffs was Luvh Rakhe, the driver of the automobile that collided
with Mr. Moran's automobile. The Plaintiffs sued Mr. Rakhe for negligence,
alleging that he caused the accident in which Mr. Moran was killed.

The case was tried to a jury, which
found that Mr. Rakhe was at fault for the accident and that Mr. Moran had
not been negligent. The jury found that Mr. Moran was wearing his seat
belt immediately before the accident. The jury also found that a design
defect in the seat belt buckle at the time it left the possession of DCC
was a producing cause of Mr. Moran's death. No strict liability questions
were submitted to the jury as to Allied. In a comparative responsibility
question, the jury found that Mr. Moran's death was 99% attributable to
the defective seat belt buckle and 1% attributable to the negligence of
Mr. Rakhe. The trial court entered a final judgment on the verdict over
the objections of Allied and DCC. The judgment holds Allied and DCC
jointly and severally liable for the damages attributable to the defective
seat belt buckle.

Both product defendants have appealed.
Allied raises six issues in its appeal. DCC raises four. Mr. Rakhe has not
appealed. The Plaintiffs have filed one brief addressing the two appeals
together. We sustain Allied's first issue and do not address the others,
as they would not entitle Allied to any relief greater than its first
issue. Tex. R. App. P. 47.1. We overrule the issues raised in DCC's
appeal.

I. Appeal by
Allied

In its first issue, Allied argues that
the Plaintiffs "waived their products liability cause of action against
Allied by failing to submit a jury issue on whether there was a design
defect in the seat belt buckle at the time it left Allied's possession."
Brief of Appellant Allied, p. 8. We agree.

A judgment must be supported by the
pleadings, the evidence, and the jury's verdict. Boatright v. Tex. Am.
Title Co., 790 S.W.2d 722, 727 (Tex. App.--El Paso 1990, writ dism'd)
(citing Tex. R. Civ. P. 301). When a jury renders a verdict, any issue
which has not been submitted to the jury is waived. Id. A
judgment cannot be rendered on an omitted issue. Id. (citing
Sentry Insurance v. Siurek, 748 S.W.2d 104, 106 (Tex.
App.--Houston [1st Dist.] 1987, no writ); Howard P. Foley Co. v.
Cox, 679 S.W.2d 58, 66 (Tex. App.--Houston [14th Dist.] 1984, no
writ)).

As noted above, the Plaintiffs sued
Allied for strict products liability based on a design defect in Mr.
Moran's seat belt buckle. In Texas, a party who sells a product in a
defective (i.e., unreasonably dangerous) condition is strictly liable for
any such defects. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
426 (Tex. 1997); see also Restatement (Second) of Torts § 402A
(1965). "The prime requirement for imposing liability on a seller under
the rule of strict liability is proof by the plaintiff that he was injured
because of a defective condition in the product when it left the hands
of the particular seller." Pittsburg Coca-Cola Bottling Works v.
Ponder, 443 S.W.2d 546, 548 (Tex. 1969) (emphasis added); see
also Placencio v. Allied Industrial Int'l, Inc., 724 S.W.2d 20, 22
(Tex. 1987) ("Placencio met his burden as plaintiff by proving and
securing jury findings that both a design and a marketing defect existed
when the grinder left Allied's possession and that these defects were a
producing cause of the occurrence."); Wright v. General Motors
Corp., 717 S.W.2d 153, 155 (Tex. App.--Houston [1st Dist.]1986, no
writ) (explaining that "in a product liability case, a plaintiff must
prove . . . that the defective condition existed at the time the defendant
relinquished possession or control of the product"); Comment, State Bar of
Texas, Texas Pattern Jury Charges, PJC 71.4 (1997 ed.) ("The plaintiff
must establish that the product was in a defective condition at the time
it left the hands of the particular seller."). Thus, to prevail on their
strict products liability claims against Allied, the Plaintiffs had the
burden to prove that Mr. Moran's seat belt buckle was in a defective
condition when it left Allied's possession. See Grinnell, 951
S.W.2d at 426; Placencio, 724 S.W.2d at 22; Ponder, 443
S.W.2d at 548; Wright, 717 S.W.2d at 155.

At trial, the Plaintiffs offered
evidence that the buckle was defective when it left Allied' s possession,
as well as later, when it left DCC's possession as part of the Dodge
Caravan sold to Mr. Moran. There was undisputed evidence that Allied
manufactured the buckle and supplied it to DCC. There was also undisputed
evidence that DCC installed the buckle in the Dodge Caravan as part of a
safety-restraint system.

There was conflicting evidence of who
designed the buckle. Allied presented evidence that DCC was the designer
of the buckle and that Allied was merely a component part manufacturer
that supplied a product in compliance with DCC's specifications. In
contrast, DCC put on evidence that Allied was responsible for the actual
design and testing of the buckle.

There was no dispute that DCC designed
and manufactured the Dodge Caravan sold to Mr. Moran. There was also no
dispute that DCC installed the buckle in the Dodge Caravan as part of a
safety-restraint system included in its overall product design for the
Dodge Caravan.

A central dispute at trial concerned
whether the buckle in Mr. Moran's Dodge Caravan was actually defective.
The Plaintiffs presented evidence tending to prove that the buckle was
defective because its design rendered it unreasonably susceptible to
inadvertent release. Allied and DCC offered evidence that the buckle was
not defective. In addition, there was evidence that the buckle was
defective in design because of its location in the Dodge Caravan, which
allowed the buckle to be contacted during a wreck and prevented it from
being guarded by the armrest.

The jury charge asked if a design
defect existed when the buckle left the possession of DCC:

Question No.
2

Was there a design defect in the seat
belt buckle in the Moran's Dodge Caravan at the time it left the
possession of Chrysler Corporation that was a producing cause of Bart
Moran's death?

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 Bart Moran's death 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
Chrysler Corporation by the application of existing or reasonably
achievable scientific knowledge.

Answer "Yes" or "No."

Answer: ___________

None of the language in Question
Number 2 pertained to Allied. In fact, Allied was not mentioned once in
the entire jury charge. Allied's attorneys objected to this at the charge
conference, as well as post-trial, during a hearing on the Plaintiffs'
motion to render judgment on the verdict.
(2)

The jury was not asked and did not
determine whether Allied sold a product in defective condition. Without
such a finding, there is no basis for holding Allied strictly liable.
See Grinnell, 951 S.W.2d at 426; Placencio, 724 S.W.2d at
22; Ponder, 443 S.W.2d at 548; Wright, 717 S.W.2d at
155. Because a judgment cannot be rendered on an omitted issue, we
conclude that the trial court erred in rendering a judgment against Allied
based on the jury's verdict. See Tex. R. Civ. P. 301;
Boatright, 790 S.W.2d at 727. We further conclude that the error
probably led to the rendition of an improper judgment, as evidenced by the
discrepancy between the jury's verdict and the judgment rendered by the
trial court. See Tex. R. App. P. 44.1(a).

Allied's first issue is sustained.
(3) The judgment against Allied is reversed. We render a take
nothing judgment against the Plaintiffs because the issue of Allied's
liability has been waived. See Boatright, 790 S.W.2d at 727
("When a jury renders a verdict, any issue which has not been submitted to
the jury is waived.").

II. Appeal by
DCC

Having reviewed and sustained Allied's
appeal, we now decide the merits of DCC's appeal. The first issue raised
by DCC involves challenges to both the legal and factual sufficiency of
the evidence to prove causation. As explained below, we hold that the
evidence was both legally and factually sufficient. By its second issue,
DCC contends that the trial court erred in failing to charge the jury with
allocation of responsibility between DCC and Allied. We hold that no abuse
of discretion has been shown because the allocation of responsibility
question proposed by DCC was improper and not substantially correct. In
its third issue, DCC presents two sub-issues challenging rulings on the
admissibility of different evidence offered at trial. We find no
reversible error in the rulings. In a fourth issue, DCC contends that the
trial court erred in admitting expert testimony on causation. We find no
reversible error in the ruling.

A. Sufficiency of
the Evidence

In its first issue, DCC challenges the
legal and factual sufficiency of the evidence to prove causation. DCC does
not challenge the sufficiency of the evidence in any other respect. Brief
of Appellant DCC, p. 6. (stating that DCC "has chosen to focus this appeal
on the comparatively straightforward issue of whether plaintiffs met their
burden with respect to causation").

1. Standards of
Review

In conducting a legal sufficiency
review, we credit evidence supporting the judgment if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not.
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We
will sustain a legal sufficiency, or no-evidence, point if the record
reveals one of the following: (1) the complete absence 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 scintilla; or (4) the
evidence established conclusively the opposite of the vital fact. See
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998). If more than a scintilla of evidence exists, it is legally
sufficient. Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782
(Tex. 2001). More than a scintilla of evidence exists if the evidence
furnishes some reasonable basis for differing conclusions by reasonable
minds about a vital fact's existence. Id. at 782-83.

In conducting a factual sufficiency
review, we view all the evidence in a neutral light to determine whether
the contested finding is so contrary to the great weight and preponderance
of the evidence as to be manifestly unjust, shock the conscience, or
clearly demonstrate bias. Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761-62 (Tex. 2003); Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986).

2. Strict
Products Liability for Design Defects

In McKisson v. Sales Affiliates,
Inc., 416 S.W.2d 787, 788-89 (Tex. 1967), the Texas Supreme Court
adopted section 402A of the Restatement (Second) of Torts on the scope of
strict products liability. Restatement (Second) of Torts § 402A (1965).
Section 402A provides that

(1) one who sells any product in a
defective condition unreasonably dangerous to the user or consumer or to
his property is subject to liability for physical harm thereby caused to
the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the
business of selling such a product, and

(b) it is expected to and does reach
the user or consumer without substantial change in the condition in which
it is sold.

Id.

A product may be unreasonably
dangerous because of a defect in its marketing, design, or manufacture.
Am. Tobacco, 951 S.W.2d at 426 (citing Caterpillar, Inc. v.
Shears, 911 S.W.2d 379, 382 (Tex. 1995); Technical Chem. Co. v.
Jacobs, 480 S.W.2d 602, 604-05 (Tex. 1972)). A product supplier is
strictly liable for any such defects. Id.; Restatement (Third) of
Torts §§ 1, 2 (1998); Restatement (Second) of Torts § 402A (1965).

The Texas Legislature has addressed
products liability in Chapter 82 of the Texas Civil Practice and Remedies
Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 82.01-.08
(Vernon 1997). Section 82.05 addresses design defect claims:

(a) In a products liability action in
which a claimant alleges a design defect, the burden is on the claimant to
prove by a preponderance of the evidence that:

(1) there was a safer alternative
design; and

(2) the defect was a producing cause
of the personal injury, property damage, or death for which the claimant
seeks recovery.

(b) In this section, "safer
alternative design" means a product design other than the one actually
used that in reasonable probability:

(1) would have prevented or
significantly reduced the risk of the claimant's personal injury, property
damage, or death without substantially impairing the product's utility;
and

(2) was economically and
technologically feasible at the time the product left the control of the
manufacturer or seller by the application of existing or reasonably
achievable scientific knowledge.

Id. § 82.005.

"A claimant must not only meet the
proof requirements of the statute but must show, under the common law,
that the product was defectively designed so as to be unreasonably
dangerous, taking into consideration the utility of the product and the
risk involved in its use." Hernandez v. Tokai Corp., 2 S.W.3d
251, 257 (Tex. 1998); see also Restatement (Third) of Torts § 2
(1998) ("A product . . . is defective in design when the foreseeable risks
of harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design . . ., and the omission of the
alternative design renders the product not reasonably safe.").

The risk-utility analysis involves
consideration of several factors including the following:

(1) the utility of the product to the
user and to the public as a whole weighed against the gravity and the
likelihood of injury from its use;

(2) the availability of a substitute
product which would meet the same need and not be unsafe or unreasonably
expensive;

(3) the manufacturer's ability to
eliminate the unsafe character of the product without seriously impairing
its usefulness or significantly increasing its costs;

(4) the user's anticipated awareness
of the dangers inherent in the product and their avoidability because of
the general public knowledge of the obvious condition of the product, or
of the existence of suitable warnings or instructions; and

(5) the expectations of the ordinary
consumer.

Tokai, 2 S.W.3d at 257
(citing Grinnell, 951 S.W.2d at 432).

The determination of whether a product
is unreasonably dangerous because of a design defect is often one that
involves factual disputes that a party is entitled to have a jury resolve.
Id. at 260. The issue is one of law only if reasonable minds
cannot differ on the risk-utility analysis considerations. Id. at
261.

3. Causation in
Strict Liability Cases

Producing cause is the test for
causation in strict liability cases. Union Pump Co. v.
Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). A producing cause is an
efficient, exciting, or contributing cause, which in a natural sequence,
produced the injuries or damages of which the claimant complains.
Id. The concepts of proximate and producing cause differ in that
foreseeability is an element of proximate cause but not of producing
cause. Id. Common to both proximate and producing cause is
causation-in-fact, including the requirement that the defendant's conduct
or product be a substantial factor in bringing about the injury that would
not otherwise have occurred. Id. There may be more than one
producing cause. Coleman v. Cintas Sales Corp., 40 S.W.3d 544,
550 (Tex. App.--San Antonio 2001, pet. denied). However, a legal cause is
not established if the defendant's conduct or product does no more than
furnish the condition that makes the plaintiff's injury possible.
Union Pump, 898 S.W.2d at 776.

4. Legal
Sufficiency of the Evidence to Prove Causation

DCC argues that the Plaintiffs
produced no evidence or insufficient evidence "supporting the proposition
that the alleged defect was the 'but for' cause of any injuries." Brief of
Appellant DCC, p. 12. We disagree.

DCC states that "appellee's
characterization of the evidence can be accepted for purposes of
discussing causation." Reply Brief of Appellant DCC, p.2. We begin with
the uncontested jury finding that the seat belt buckle was defective.
There is also an uncontested jury finding that Mr. Moran was wearing his
seat belt immediately before the fatal accident. These uncontested
findings are critical because they establish the circumstances of the
accident and the existence of a design defect in the seat belt buckle.
See Morrell v. Finke, 184 S.W.3d 257, 285 (Tex. App.--Fort Worth
2005, pet. abated) (holding that unchallenged findings are binding on the
court). In addition to the uncontested findings that Mr. Moran was wearing
a defective seat belt immediately before the accident, the evidence
supporting the judgment shows that Mr. Moran's seat belt did not restrain
him during the accident and that, as a result, he was ejected from his
automobile. There is uncontested testimony that Mr. Moran's ejection from
the automobile produced the physical trauma that ultimately caused his
death. There is also evidence that Mr. Moran's injuries from the accident
would not have been fatal if his seat belt had restrained him and
prevented his ejection from the automobile.

DCC argues that the evidence is
insufficient to prove causation because there is no reliable expert
testimony in the record directly stating that the defective buckle was a
producing cause of Mr. Moran's death. We disagree. It is not required that
a witness conclusively state that a product caused the plaintiff's injury.
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). The
Texas Supreme Court has long held that causation may be proved by
circumstantial evidence. See Gladewater v. Pike, 727 S.W.2d 514,
518 (Tex. 1987) ("Circumstantial evidence and inferences therefrom are a
sufficient basis for a finding of causation."); Farley v. M M Cattle
Co., 529 S.W.2d 751, 755 (Tex. 1975) ("Proximate cause, like any
other ultimate fact, may be established by circumstantial evidence.");
Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275-76 (Tex.
1958) ("It is well settled . . . that negligence and causation, like any
other ultimate fact, may be established by circumstantial as well as
direct evidence."); Peveto v. Smith, 134 Tex. 308, 133 S.W.2d
572, 576 (Tex. 1939) (relying on circumstantial evidence to prove
negligence and causation); see also Tex. Elec. Coop. v. Dillard,
171 S.W.3d 201, 206 (Tex. App.--Tyler 2005, no pet.) ("Cause in fact . . .
may be proven by circumstantial evidence . . . .").

In Kindred, the plaintiffs
pleaded strict liability claims based on design and marketing defects.
Kindred, 650 S.W.2d at 61. The trial court submitted a jury
charge question as to the marketing defect claim, but it refused to submit
a jury question on the design defect claim. Id. at 62. The
plaintiffs appealed to the Texas Supreme Court, which reversed the
judgment and remanded the case for a new trial. Id. at 61.

In sustaining the plaintiffs' issue,
the Texas Supreme Court directly addressed the question of whether expert
testimony is necessary to prove causation in a design defect case. The two
plaintiffs in Kindred were injured when they were using a product
called "Cono/Prime X," a paint primer. Id. at 61. The plaintiffs
had been applying the primer for approximately 20 minutes when a fire
started. Id. at 61-62. At trial, there was evidence that the
primer had "a flash point of 53 degrees Fahrenheit, which means that in
the presence of oxygen and an ignition source the material would burn when
warmed to approximately 53 degrees." Id. at 62. The evidence also
showed that the temperature in the room where the plaintiffs were working
was "about 48 degrees" and that the temperature inside the tanks where
they were applying the primer "was about 50 degrees." Id. "None
of the witnesses could identify the exact ignition source." Id.

On appeal, the defendant maintained
that the trial court did not err in refusing to charge the jury with a
design defect question. According to the defendant, there was no evidence
that a design defect in the product was a producing cause of the injuries.
Id. at 63. The Texas Supreme Court disagreed:

Although no witness could conclusively
state that the product was the cause, the jury could have made that
determination from circumstantial evidence. The testimony indicates that
Cono/Prime X, as designed, was a "very flammable mixture," which was being
applied inside the tank, as Con/Chem intended, when the fire
occurred.
We hold that the evidence was
sufficient to submit the issue to the jury.

Id.

This case parallels Kindred.
In Kindred, the paint primer was allegedly defective in design
because its composition rendered it unreasonably flammable. Id.
at 62. The defect manifested itself (at least allegedly) when the product
was being used and a fire broke out, causing injuries to the plaintiffs.
In this case, the Plaintiffs alleged that the seat belt buckle was
defective in design because it was unreasonably susceptible to inadvertent
release. The defect manifested itself (at least allegedly) when the
product was being used and became inadvertently released, causing Mr.
Moran to not be restrained during the automobile accident.

The cases are similar in that no
expert could conclusively state exactly how either accident occurred. In
Kindred, no expert could say how the fire was ignited. Only the
circumstances of the fire and the defective design of the product could be
established. Similarly, in this case, no expert could say how the seat
belt buckle became inadvertently released. Only the circumstances of the
inadvertent release and the defective design of the seat belt buckle could
be established.

DCC complains that there is no proof
establishing exactly how Mr. Moran's buckle became inadvertently released,
but that complaint is essentially the same argument rejected by the Texas
Supreme Court in Kindred. As in Kindred, we conclude
that a reasonable and fair-minded juror could reasonably infer causation
based on the circumstances of the accident and the existence of a design
defect that rendered the seat belt buckle unreasonably susceptible to
inadvertent release.

5.
Legal Sufficiency of the Evidence to Prove a Safer Alternative
Design

DCC also argues an additional
sub-point in its first issue. It contends that there is no evidence or
insufficient evidence that Mr. Moran's death "would not have occurred with
the Gen IV buckle," a seat belt buckle that the Plaintiffs' offered at
trial as evidence of a safer alternative design to the defective buckle
used by Mr. Moran, the "Gen III buckle." Brief of Appellant DCC, p. 8.
According to DCC, there is no evidence "that the manner in which Bart
Moran is supposed to have opened the [Gen III] buckle would not have
opened the supposedly safer Gen IV or any other seat belt buckle in the
world." Id. at 11. Although DCC frames the sub-point as a
challenge to causation, we conclude that the sub-point actually relates to
the Plaintiffs' burden to prove the availability of a safer alternative
design. It is axiomatic that a design defect can exist only if there is a
safer alternative design. See Tex. Civ. Prac. & Rem. Code
Ann. § 82.005; GMC v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999);
Caterpillar, 911 S.W.2d at 384 ("If there are no safer
alternatives, a product is not unreasonably dangerous as a matter of
law."); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746
(Tex. 1980) ("defectiveness of the product in question is determined in
relation to safer alternatives"). By definition, a safer alternative
design must substantially reduce the risk of injury and be both
economically and technologically feasible. See Tex. Civ. Prac.
& Rem. Code Ann. § 82.005(b)(1).

DCC contends that the Plaintiffs had
the burden to prove that an inadvertent release would not have occurred
with the Gen IV under the same or similar circumstances. We disagree. The
Plaintiffs' burden was to prove that the Gen IV's alternative design would
"substantially reduce the risk of injury and be both economically and
technologically feasible." Id

DCC has not contested the jury's
finding of a design defect. DCC has conceded that "with all reasonable
inferences, appellee may have proven a safer alternative design." Reply
Brief of Appellant DCC, p. 3. Because a safer alternative design must, by
definition, "substantially reduce the risk of injury and be both
economically and technologically feasible," we conclude that there is no
merit to DCC's sub-point concerning the Gen IV. See Tex. Civ.
Prac. & Rem. Code Ann. § 82.005(b)(1). The sub-point is overruled.

6. Admissibility
of Testimony by Thomas Horton

In reviewing the legal sufficiency of
the evidence on causation we have relied on uncontested jury findings, as
well as evidence that cannot be disregarded in a legal sufficiency review.
See City of Keller, 168 S.W.3d at 827. We have not relied on
causation testimony by the Plaintiffs' expert, Thomas Horton, who
testified over objection that "the buckle became unlatched due to an
inadvertent contact with Mr. Moran's hand most likely, . . . [which]
caused the latch plate to come out of the buckle."

In arguing that the evidence is
legally insufficient, DCC contends that Mr. Horton's testimony was
inadmissible and should not be relied upon to uphold the jury's verdict.
These contentions are made in DCC's legal sufficiency challenge, but it
appears that DCC intended to raise the admissibility of Mr. Horton's
testimony as an additional, separate issue on appeal.
(4)
Accordingly, we treat this as DCC's fourth issue.

To prevail on the
issue, DCC had the burden to establish that the admission of Mr. Horton's
testimony probably led to the rendition of an improper judgment.
See Tex. R. App. P. 44.1(a). In general, a complaining party does
this by showing that the judgment turns on the particular evidence
admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54
(Tex. 1995). DCC has not made such a showing in its brief.

We have reviewed the
entire record and conclude that the error, if any, in the admission of Mr.
Horton's testimony did not probably lead to the rendition of an improper
judgment. See Tex. R. App. P. 44.1(a); Alvarado, 897
S.W.2d at 754. The uncontested jury findings establish as a matter of law
that Mr. Moran was wearing his seat belt immediately before the accident.
They also establish as a matter of law that the buckle was defectively
designed because of its susceptibility to inadvertent release. DCC
complains about the lack of evidence on causation, but the uncontroverted
evidence shows that Mr. Moran was not restrained by his seat belt even
though he was wearing it. In our view, this case did not turn on how the
buckle became inadvertently released, but rather on the facts that (1) the
buckle was defectively designed because it was unreasonably susceptible to
inadvertent release, (2) Mr. Moran was wearing the buckle at the time of
the accident, and (3) the buckle became inadvertently released and did not
restrain Mr. Moran during the accident.

In Kindred,
the Texas Supreme Court held that the jury could infer causation based on
circumstantial evidence that (1) the product was defectively designed
because it was unreasonably flammable, (2) the product caught fire while
being used, and (3) the fire injured the plaintiffs. See Kindred,
650 S.W.2d at 63. Similarly, in this case, the jury could infer causation
based on circumstantial evidence that (1) the product was defectively
designed because it was unreasonably susceptible to inadvertent release,
(2) the product was being used and became inadvertently released, and (3)
Mr. Moran was injured by the product's failure to restrain him.

We view the question
of how the seat belt became inadvertently released, whether by bodily
contact or other forces, as analogous to the question in Kindred
regarding how the product caught fire. In Kindred, the
experts could not determine how the product caught fire. Id.
Similarly, in this case, the experts could not determine conclusively how
the seat belt buckle became unlatched. Mr. Horton testified that it was
"most likely" contact with Mr. Moran's hand that released the buckle;
however, Mr. Horton qualified his testimony by stating that it was not
"feasible" to determine "exactly how Mr. Moran's hand moved millisecond by
millisecond to come down and strike the belt buckle." The defendants
cross-examined Mr. Horton on this point:

Q. If I understand it
then - and let me see if I can get this. What you're telling us is that
you think maybe his hand hit the button but you don't have any physical
evidence to support that?

A. Nor would you
expect there to be any but that's what I think happened, yes.

Q. So I want to make
sure I'm right. You think his hand hit the button but you have no physical
evidence to support that?

A. That is
correct.

In addition to the
foregoing cross-examination, the defendants presented evidence tending to
prove that Mr. Moran's hand could not have come into contact with the
buckle, as suggested by Mr. Horton. The defendants' experts did not offer
any alternative theories of how the buckle became released. Instead, they
testified that the buckle was not worn by Mr. Moran at the time of the
accident and that it therefore did not become inadvertently released. Such
opinions are untenable now that it has been established that Mr. Moran was
wearing his seat belt.

Even assuming, for
the sake of argument, that Mr. Horton's testimony was inadmissible and
should not be considered, we are left with a situation exactly like
Kindred, where no expert could conclusively explain how the fire
got started. In this case, the belt became unlatched, but no expert could
identify how that happened. As in Kindred, the issue of causation
turns on the circumstances of the accident, which have gone largely
uncontested by DCC on appeal. For these reasons, we conclude that there
was no reversible error in the admission of Mr. Horton's testimony.

DCC's fourth issue is
overruled.

7. Factual Sufficiency
of the Evidence to Prove Causation

DCC also challenges
the factual sufficiency of the evidence to prove causation. The challenge
is only one sentence long. See Brief of Appellant DCC, p. 12 ("At
the very least, the evidence overwhelmingly preponderates in DCC's favor,
and this Court should reverse and remand the case to the trial court.").
DCC's brief does not identify the evidence that "overwhelmingly
preponderates in DCC's favor." Id. DCC does not make any
arguments to substantiate its contention that the evidence is factually
insufficient. See Tex. R. App. P. 38.1(h). Nevertheless, we have
reviewed all of the evidence in the record in a neutral light to determine
if it is factually sufficient. See Golden Eagle Archery, 116
S.W.3d at 761-62. At trial, DCC offered evidence to prove that Mr. Moran
was not wearing his seat belt at the time of the accident and that Mr.
Moran's seat belt buckle was not defective. To rebut the Plaintiffs'
allegations and evidence that the seat belt buckle became inadvertently
released during Mr. Moran's accident, DCC produced expert testimony
tending to prove that, under the circumstances of the accident, Mr.
Moran's buckle could not have become inadvertently released by bodily
contact.

As previously
discussed, the jury found (and DCC has not contested) that, immediately
before the accident, Mr. Moran was wearing a seat belt that was
unreasonably dangerous because of its susceptibility to inadvertent
release. The uncontested evidence at trial proved that Mr. Moran was not
restrained by a seat belt during the accident. These are circumstances
tending to prove the required element of causation. Although the
Plaintiffs' evidence of causation is thus circumstantial (with the
exception of the testimony of Mr. Horton, on which we do not rely),
causation may be established through circumstantial evidence.
Gladewater, 727 S.W.2d at 518; Kindred, 650 S.W.2d at
63; Farley, 529 S.W.2d at 755; Lynch, 314 S.W.2d at
275-76; Peveto, 133 S.W.2d at 576; Tex. Elec. Coop., 171
S.W.3d at 206.

In sum, our review of
the record shows that there is mixed evidence on the element of causation.
We believe that based on this evidence rational jurors could reasonably
reach different conclusions on whether the defect was a producing cause of
Mr. Moran's death. We are prohibited from substituting our judgment for
that of the jury, even if there is contrary evidence that may "clearly
support a different result." Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402, 407 (Tex. 1998). The existence of conflicting evidence
does not render the evidence supporting the jury's verdict factually
insufficient. See Golden Eagle Archery, 116 S.W.3d at 761-62
(explaining that jury's finding must be so contrary to the great weight
and preponderance of the evidence as to be manifestly unjust, shock the
conscience, or clearly demonstrate bias"). To the contrary, when there is
conflicting evidence, the jury's verdict is generally regarded as
conclusive. Beall v. Ditmore, 867 S.W.2d 791, 796 (Tex. App.--El
Paso 1993, writ denied).

Having reviewed all
the evidence in a neutral light, we conclude that it is not factually
insufficient. Again, we reiterate that DCC has not presented any arguments
to demonstrate how the evidence is factually insufficient. See
Tex. R. App. P. 38.1(h). Although we have examined the record to
evaluate DCC's challenge, we are not required to construct arguments to
support DCC's contention. See Aluminum Chems., Inc. v. Bechtel
Corp., 28 S.W.3d 64, 68 (Tex. App.-Texarkana 2000, no pet.) ("It is
not the proper function of this Court to create arguments for an
appellant. We are restricted to addressing the arguments actually raised,
not those that might have been raised."). We are not required to detail
the evidence supporting the judgment. See Gonzalez v. McAllen Med.
Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) ("[N]either the appellate
rules nor this Court require detailed recitations of the evidence when a
factual sufficiency complaint is overruled.").

Nevertheless, because
"merely stating that . . . [the challenge] is overruled does not count as
providing the 'basic reasons' for that decision," we have attempted to
address the limited challenge presented by DCC. Id. We overrule
DCC's challenge because DCC has not demonstrated how the evidence fails to
meet the factual sufficiency standards set by the Texas Supreme Court.
See Tex. R. App. P. 38.1(h). In addition, our review of the
record shows that, although causation was hotly disputed at trial, the
jury's finding is not contrary to the great weight and preponderance of
the evidence.

DCC's first issue is
overruled.

B. Jury Charge on
Proportionate Responsibility

In its second issue,
DCC argues that the trial court erred in failing to charge the jury with
allocation of responsibility between DCC and Allied.

1. Standard of
Review

To determine whether
an alleged jury charge error is reversible, we consider the parties'
pleadings, the evidence presented at trial, and the charge in its
entirety. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663
(Tex. 1999). The goal of a jury charge is to submit the issues for
decision logically, simply, clearly, fairly, correctly, and completely,
and the trial court has broad discretion in accomplishing that end as long
as the charge is legally correct. Id. at 664. A trial court must
submit "such instructions and definitions as shall be proper to enable the
jury to render a verdict." Tex. R. Civ. P. 277; see also Union Pac.
R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). A party is
entitled to a jury question, instruction, or definition if the pleadings
and evidence raise an issue. Williams, 85 S.W.3d at 166 (citing
Tex. R. Civ. P. 278). This is a substantive, non-discretionary directive
to trial courts, requiring them to submit requested questions to the jury
if the pleadings and any evidence support them. Elbaor v. Smith,
845 S.W.2d 240, 243 (Tex. 1992).

Our procedural rules
state that any complaint about a jury charge is waived unless specifically
included in an objection. Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1);
In the Interest of B.L.D., 113 S.W.3d 340, 349-50 (Tex. 2003). A
party must make the trial court aware of the complaint, timely and
plainly, and obtain a ruling. B.L.D., 113 S.W.3d at 349;
State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 241 (Tex. 1992).

Texas Rule of Civil
Procedure 278 provides:

Failure 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; provided,
however, that objection to such failure shall suffice in such respect if
the question is one relied upon by the opposing party.

Tex. R. Civ. P. 278.

The Texas Supreme
Court has also given the following guidance on issue
preservation:

There should be but
one test for determining if a party has preserved error in the jury
charge, and that is whether the party made the trial court aware of the
complaint, timely and plainly, and obtained a ruling. The more specific
requirements of the rules should be applied, while they remain, to serve
rather than defeat this principle.

Payne, 838
S.W.2d at 241.

Finally, the omission
of a proper question from a jury charge is reversible only if it "probably
caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a)(1).
Error in the omission of an issue is harmless "when the findings of the
jury in answer to other issues are sufficient to support the judgment."
Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per
curiam); see Boatland of Houston, 609 S.W.2d at 750 (holding that
even if submission was improper, error was harmless); see also City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (explaining
that a jury question may be immaterial, and therefore its submission
harmless, "when its answer can be found elsewhere in the verdict or when
its answer cannot alter the effect of the verdict").

2. DCC's Objections
and Proposed Jury Question Number 4

DCC's complaint on
appeal concerns Jury Question Number 4, which reads as follows:

If you have answered
"Yes" to Question No. 2 and/or 3 for more than one of those named below,
then answer the following question. Otherwise, do not answer the following
question, and go directly to Question No. 7.

The percentages you
find must total 100 percent. The percentages must be expressed in whole
numbers. The percentage of causation attributable to a person, company, or
product is not necessarily measured by the number of acts, omissions, or
product defects found. The percentages attributable to a person, a
company, or product need not be the same percentage attributed to that
person, that company, or that product in answering another question.

Question No.
4

For each person or
product found by you to have caused the occurrence or Bart Moran's death,
find the percentage caused by -

a. The seat belt
buckle ___ %

b. Luvh Rakhe ___ %

c. Bart Moran ___
%

Total
100%

At the charge
conference, DCC made the following objection to proposed jury question
number four:

[Counsel]:
Defendant DaimlerChrysler objects to Question Number 4. It is the question
that deals with comparative responsibility. We object to the form of that
question for the following reasons:

* * *

Texas Rule of Civil
Procedure 277 . . . .

* * *

That's the basis,
number one, for our objection, Your Honor.

Basis number two has
to do with the statutory requirement imposed on this Court, namely in
Chapter 33, a sequence of the Civil Practice and Remedies Code.

* * *

For that reason, Your
Honor, we object to Question Number 4.

The third basis for
our objection to Question Number 4 of the Court's proposed question has to
do with the constitutional violation DaimlerChrysler Corporation is
entitled to a trial by jury, and we would refer the Court to Article 1,
Section 15 of the Texas Constitution. Specifically, Your Honor, what we
are objecting to in Question 4 is the fact that the way that the case is
being submitted under Question 4 is under (A) the seat belt buckle, (B)
Luvh Rakhe, (C) Bart Moran. And we believe the proper submission, Your
Honor, would include Bart Moran, Luvh Rakhe, Chrysler Corporation, (seat
belt system in the 1997 Dodge Caravan), and Alliedsignal, Inc., (seat belt
system in the 1997 Dodge Caravan).

And, Your Honor, we
have . . . prepared a question in correct form. We would ask, first of
all, the Court to consider our objection and rule on the objection.

THE
COURT: Your objection is overruled.

[COUNSEL]:
Okay. At this point, we would tender Question 4 in the correct form as
required.

DCC offered the
following proposed jury question, which was refused by the trial court, as
shown in both the clerk's record and the reporter's record on appeal:

[DCC'S PROPOSED]
QUESTION NO. 4

For each person or
product found by you to have caused the occurrence or injury, find the
percentage caused by -

A. Bart Moran
____%

B. Luvh Rahke
____%

C. Chrysler
Corporation (seat belt system in

the 1997 Dodge
Caravan) ____%

D. Allied Signal,
Inc. (seat belt system in

the 1997 Dodge
Caravan) ____%

TOTAL
100%

3. Appellate Argument
by DCC

In relevant part, DCC
argues on appeal:

The evidence
presented a fact issue as to whether DCC was liable, AlliedSignal, Inc.,
was liable, or both . . . . DCC was entitled to have the jury allocate
responsibility between the two product defendants, as it expressly
requested in its pleading. The jury was not asked to determine whether it
found AlliedSignal, Inc. liable, DCC liable, or both. Furthermore, it is
impossible to tell how much responsibility the jury attributed to each of
these defendants.

Brief of Appellant
DCC, pp. 19-20.

4. Response by the
Plaintiffs

The Plaintiffs argue
two central points in response: (1) DCC waived its right to a jury
question on allocation of responsibility between DCC and Allied by failing
to plead a cross-claim for contribution against Allied; and (2) DCC is
precluded from relief on appeal because it failed to offer the trial court
a substantially correct proposed question.

The Plaintiffs' brief
states in relevant part:

Chrysler and
AlliedSignal did file cross-claims for contribution against Luvh Rakhe,
the defendant driver. But Chrysler and AlliedSignal did not file
cross-claims for contribution against each other. Thus, any right that
Chrysler or AlliedSignal had to a question apportioning responsibility
between the two of them was waived and the trial court did not err in its
charge to the jury.

Brief of Appellees,
p. 12 (citations and internal footnote omitted).

The Plaintiffs' brief
also points out an inconsistency in DCC's appellate brief, where DCC
argues that it had a right to have the jury allocate responsibility
between the two product defendants:

In its brief,
Chrysler states that it was "entitled to have the jury allocate
responsibility between the two product defendants, as it expressly
requested in its pleading. CR 13." Chrysler's Brief, p. 19 (emphasis
added). The record cite ["CR 13"] is to Chrysler's original answer which
simply did not mention AlliedSignal and does not state a claim for
contribution against any party.

Id. at 12 n.
10.

Finally, the
Plaintiffs offer an argument for why DCC's proposed apportionment question
was not substantially correct:

The requested
question is not a substantially correct question because no other question
[submitted or refused] asked if Chrysler or AlliedSignal individually
caused the occurrence or injury.

The requested
question requires the jury to apportion responsibility between the two
product suppliers, but does not instruct how to do so. While the question
instructs to apportion causation "for each person or product found by you
to have caused the occurrence or injury," there was no question in which
the jury could have found that "Chrysler Corporation" or "AlliedSignal,
Inc." caused the occurrence or injury. Apportioning responsibility to Bart
Moran or Luvh Rakhe (the defendant driver) is necessarily predicated on a
"Yes" finding to Question No. 3, which asked if the negligence of Moran or
Rahke was a proximate cause of the occurrence. In the Question No. 4 that
was actually submitted, apportioning responsibility to the seat belt
buckle is obviously predicated on the jury's "Yes" answer to Question No.
2, which asked if a defect in the seat belt buckle was a producing cause
of Bart Moran's death.

But there is no
predicate question for the appellants' requested Question No. 4. No
question asked if Chrysler or AlliedSignal caused the occurrence or
injury. The jury's answer to Question No.2, that a defect in the buckle
was a producing cause of Moran's death, was a product liability question
that did not involve any conduct of Chrysler or AlliedSignal . . . .

There was simply no
way for the jury to answer the [proposed] question, and it was not a
substantially correct question.

Id. at 17-19
(internal citations omitted).

5. Reply by
DCC

DCC makes the
following argument in its reply brief:

The objections to
Question 4 were plainly adequate to preserve error for appellate review .
. . . Here, the objection was timely and repeatedly made, a proper
question submitted, and a ruling obtained . . . . Just as appellee led the
trial court into error by inexplicably resisting a proper proportionate
responsibility question, her request that this Court retreat to the
arcania of out-dated charge error preservation law is an invitation to
error.

Reply Brief of
Appellant DCC, pp. 8-10 (internal citations omitted).

6.
Analysis

Although the trial
involved two product defendants, the Plaintiffs tendered, and the trial
court submitted, a jury charge that only allowed the jury to determine
whether a defect existed in the seat belt buckle at the time it left DCC's
possession as part of the Dodge Caravan. See Placencio,
724 S.W.2d at 22 (explaining that strict products liability plaintiffs
have the burden to prove and secure jury findings that defect existed when
product left defendant's possession and that defect was a producing cause
of occurrence). There was no corresponding liability question for Allied.
The jury was not asked whether a design defect existed in the seat belt
buckle at the time it left Allied's possession. For this reason, we
concluded that the verdict did not support a judgment against Allied.
See Pittsburg Coca-Cola Bottling Works, 443 S.W.2d at 548 ("The
prime requirement for imposing liability on a seller under the rule of
strict liability is proof by the plaintiff that he was injured because of
a defective condition in the product when it left the hands of the
particular seller.") (emphasis added); State Bar of Texas, Texas
Pattern Jury Charges, PJC 71.4 (1997 ed.) ("The plaintiff must establish
that the product was in a defective condition at the time it left the
hands of the particular seller."). In the analysis below, we conclude that
the absence of a liability question as to Allied also rendered the
apportionment question proposed by DCC improper and not substantially
correct.

Because the jury
charge issue raised by DCC is hotly disputed, we again incorporate the
arguments directly out of DCC's brief:

AlliedSignal, Inc.
challenges the trial court's judgment on the additional ground that
plaintiffs failed to obtain any jury finding against it. Even if this
Court sustains that point of error and renders judgment for AlliedSignal,
Inc., DCC's point of error complaining of the failure to allocate
responsibility between DCC and AlliedSignal, Inc. still presents
reversible errort [sic]. DCC plead that it was entitled to a proportionate
responsibility question, CR 13, DCC presented evidence that it was not
entirely responsible for the design of the seat belt buckle, and section
33.003 requires that the jury allocate responsibility among defendants.
AlliedSignal, Inc. was a party defendant throughout trial; therefore, DCC
was entitled to a proportionate responsibility question. This Court's
ruling on AlliedSignal, Inc.'s first point of error cannot change the
history of the case.

Brief of Appellant
DCC, p. 23 n. 7.

DCC has argued that
we "cannot change the history of the case" by sustaining Allied's first
issue. We do not purport to do so. Nevertheless, the proper analytical
framework for resolving a jury charge error must account for what actually
happened before the trial court, what objections were actually made and
ruled on, and what proposed jury questions were actually offered and
refused. See Tex. R. Civ. P. 274, 278; Tex. R. App. P.
33.1(a)(1); B.L.D., 113 S.W.3d at 349.

The record shows that
(1) the trial court did not submit a liability question as to Allied, (2)
the Plaintiffs did not propose a liability question as to Allied or object
to its absence, and (3) DCC did not propose a liability question as to
Allied or object to its absence. On appeal, DCC has not raised a
jury charge error regarding the absence of a strict liability question as
to Allied. The only issue preserved and presented for our review concerns
Jury Question Number 4. See Tex. R. Civ. P. 274 ("Any complaint
as to a question, definition, or instruction, . . . is waived unless
specifically included in the objections.").

We agree with the
Plaintiffs that DCC's proposed question would have been improper
considering the entire jury charge. Without a question first establishing
Allied's liability (i.e., that a design defect existed in the buckle at
the time it left Allied's possession that was a producing cause of Mr.
Moran's death), there was no basis for asking the jury to apportion
causation between "(1) Bart Moran; (2) Luvh Rahke; (3) Chrysler
Corporation (seat belt system in the 1997 Dodge Caravan); and (4) Allied
Signal, Inc. (seat belt system in the 1997 Dodge Caravan)," as requested
by DCC.

DCC argues that "it
is impossible to tell how much responsibility the jury attributed to each
of these defendants [meaning DCC and Allied]," but it is clear that the
jury was never asked about Allied and could not have found that a defect
existed at the time the buckle left Allied's possession that a was
producing cause of Mr. Moran's death. Brief of Appellant DCC, p. 20. The
effect of the charge was to submit the case to the jury with only one
product defendant. This is clear from Jury Question Number 2, which we
quoted in full in our discussion of Allied's appeal.

DCC has not raised
any appellate complaint about Jury Question Number 2. Its only complaint
about the jury charge is that Jury Question Number 4 should have included
Allied because Allied was a named defendant. See Tex. Civ. Prac.
& Rem. Code Ann. § 33.003. We disagree.

The Texas Pattern
Jury Charge explains that, to establish strict liability, "The plaintiff
must establish that the product was in a defective condition at the time
it left the hands of the particular seller." Comment, State Bar of Texas,
Texas Pattern Jury Charges, PJC 71.4. Thus, to establish Allied's strict
liability, the jury had to find that a defect existed at the time the
buckle left Allied's possession that was a producing cause of Mr. Moran's
death. See Pittsburg Coca-Cola Bottling Works, 443 S.W.2d at 548;
Wright, 717 S.W.2d at 155 (explaining that "in a product
liability case, a plaintiff must prove . . . that the defective condition
existed at the time the defendant relinquished possession or control of
the product"). The jury was not asked and did not find that a defect
existed in the buckle at the time it left Allied's possession that was a
producing cause of Mr. Moran's death. Without a predicate finding of
causation as to Allied, there was no basis for asking the jury to
apportion causation to Allied.

Most importantly, the
jury could not have apportioned causation to Allied even if DCC's proposed
question had been submitted. Thus, the error if any, is not reversible
because it could not have affected the final judgment. See Tex.
R. App. P. 44.1(a). This is clear from the language of DCC's proposed
question. It reads, "For each person or product found by you to
have caused the occurrence or injury, find the percentage caused
by . . . [the individuals listed]." (emphasis added). "Found" and "find"
refer to different things. "Found by you" refers to a previous question,
whereas "find" prompts the jury to answer the proposed question. Thus, the
proposed question would have asked the jury to compare the percentage of
causation attributable to each person or product previously found
to have caused the occurrence or injury. Yet, there was no previous
question in which the jury could have found that a defect existed in the
product at the time it left Allied's possession that was a producing cause
of Mr. Moran's death. Consequently, even DCC's proposed question would
have precluded the jury from apportioning causation to Allied because of
the absence of a predicate finding of causation in a previous question.

Nevertheless, DCC
argues that section 33.003 of the civil practice and remedies code
obligated the trial court to submit Allied in Jury Question Number 4
because Allied was a defendant. Again, we disagree.

Texas Rule of Civil
Procedure 277 explains how proportionate responsibility questions are to
be submitted to the jury:

In any cause in which
the jury is required to apportion the loss among the parties the court
shall submit a question or questions inquiring what percentage, if any, of
the negligence or causation, as the case may be, that caused the
occurrence or injury in question is attributable to each of the persons
found to have been culpable.

Tex. R. Civ. P. 277
(emphasis added).

We emphasize the last
five words, "found to have been culpable," because they reinforce our
previous conclusion that there must be predicate findings of strict
liability before a proportionate responsibility question can be submitted
to the jury as to specific product defendants. Rule 277 clarifies that a
party's status as a named defendant is not itself a sufficient basis for
including a party in a proportionate responsibility question. Under Rule
277, the jury must make specific findings of culpability before
apportioning loss between parties and products. In a strict products
liability case, the predicate finding is that a defect existed at the time
the product left the possession of a particular defendant that was a
producing cause of the occurrence or injury. See Placencio, 724
S.W.2d at 22; Pittsburg Coca-Cola Bottling Works, 443 S.W.2d at
548.

Having reviewed the
charge in its entirety, we conclude that the question proposed by DCC was
not substantially correct. See Hyundai Motor Co. v. Rodriguez,
995 S.W.2d 661, 663 (Tex. 1999). Because there was no previous question to
establish Allied 's strict liability, the question proposed by DCC would
have confused the issues before the jury and created the possibility of
inconsistent findings. The trial court did not abuse its discretion in
refusing the proposed question.

The only sub-issue we
have not directly addressed in our analysis is whether the trial court
erred in submitting the seat belt buckle rather than DCC in Question
Number 4. As noted earlier, the practical effect of the entire jury charge
was to submit the case to the jury with only one product defendant. Even
DCC seems to concede that under such circumstances the defective product
may be listed instead of the defendant in the proportionate responsibility
question. See Reply Brief of Appellant DCC, p. 10 ("Submission of
the product's responsibility is harmless when there is only one products
defendant . . . ."); see also Duncan v. Cessna Aircraft Co., 665
S.W.2d 414, 432 (Tex. 1984) ("The jury will determine the causation
attributable to the defective product."). We conclude that there was no
error in the trial court's submission of the seat belt buckle in Jury
Question Number 4. In any event, the error would be harmless in light of
the entire charge.

DCC's second issue is
therefore overruled.

C. Admissibility of
Evidence

In its third issue,
DCC raises two sub-issues challenging the trial court's rulings on the
admissibility of different evidence offered at trial. Specifically, DCC
complains that the trial court erred by (1) excluding evidence of Bart
Moran's history of cocaine addiction and a prior conviction for aggravated
kidnapping and (2) admitting evidence of customer complaints to DCC and
the National Highway Traffic Safety Association.

1. Standard of
Review

The admission and
exclusion of evidence is committed to the trial court's sound discretion.
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989). A party seeking to reverse a judgment based on evidentiary error
need not prove that but for the error a different judgment would
necessarily have been rendered; it must show only that the error probably
resulted in an improper judgment. McCraw v. Maris, 828 S.W.2d
756, 758 (Tex. 1992); see also Tex. R. App. P. 44.1(a). A
successful challenge to evidentiary rulings usually requires the
complaining party to show that the judgment turns on the particular
evidence excluded or admitted. Alvarado, 897 S.W.2d at 753-54. We
determine whether the judgment turns on the challenged evidence by
reviewing the entire record. Id. at 754.

2. Excluded Evidence
of Mr. Moran's Drug Addiction & Previous Felony
Conviction

a. Proceedings at
Trial

At trial, DCC
attempted to adduce evidence in the form of testimony, medical records,
and psychiatric records showing that Mr. Moran had a history of drug abuse
and was a convicted felon. The trial court excluded the evidence. On
appeal, DCC contends that the evidence was relevant in several ways: (1)
"Bart Moran took life-threatening risks and broke the law for over seven
years by snorting and injecting cocaine. This evidence tends to discredit
plaintiffs' evidence that Bart faithfully followed the law by wearing his
seat belt at all times," Brief of Appellant DCC, p. 25; (2) "The drug
addiction was also relevant to the issue of damages, because it bore on
Bart Moran's future earning capacity," id.; (3) "The drug
addiction also bore on . . . [the Plaintiffs'] loss of companionship and
society claims," Id.; and (4) "The excluded evidence establishes
beyond a reasonable doubt that Bart Moran was an addicted user of cocaine,
that his continued use of cocaine during the marriage substantially
undermined his ability to support . . . [the Plaintiffs] as a truck driver
(or anything else), and that it created a rift in the relationship between
Bart [Moran] and . . . [his wife]," id. at 25-26.

On appeal, DCC has
also attempted to demonstrate how the exclusion of the evidence probably
led to the rendition of an improper judgment:

Plaintiffs sought and
were allowed to effectively mislead the jury into believing that Bart
Moran was a healthy, safety conscious father whose relationship with his
wife (while not perfect, whose is?) was certainly loving and who was a
generous care-giver to his daughter. The evidence DCC sought to present
directly bore on the issue of the quality of the life Mr. and Mrs. Moran
shared. DCC was not trying to show Mr. Moran was under the influence when
the accident occurred, but the proffered evidence went directly to the
issue of how Mr. Moran's addiction negatively affected his marriage and
how he did not have a substantial or reliable earning capacity. Had the
jury learned the truth regarding Bart Moran's "habits" as they affected
the relationship between he and his wife, it is likely that the jury would
have reached a different result on liability, and it would certainly have
done so with respect to damages.

Id. at
29.

Finally, DCC contends
that "[e]ven if the evidence had been inadmissible initially as unfairly
prejudicial, the trial court erred in excluding it because plaintiffs
opened the door for its admission during their testimony." Id.
DCC then quotes the following portion of the reporter's record of the
trial, where Mrs. Moran gave direct testimony about her relationship with
her husband and arguably "opened the door" to evidence of drug use and a
prior conviction:

Q. Did you and Bart
ever do things together?

A. We
did.

Q. What did you
do?

A. We both shared an
interest in music, so we spent a lot of time - he played music. I
listened. We both loved theater, so we did a lot of movies together. He
enjoyed cooking and so did I, so we cooked together. We attended church
together. We did a lot of traveling to and from Liberty together, and we'd
often visit my family together. We did things like go out into the beach,
picnics, fishing.

Q. Is religion a
significant part of your life?

A. Yes, it is.

Q. Did you take your
vows at the marriage to heart and very seriously?

A. Yes, sir.

Q. And the part
about, "Death do us part," did you take that very seriously?

A. Yes, I did.

Q. Can you tell this
jury that your marriage to Bart was an appropriate

marriage?

A. No, I
can't.

Q. Was there some
hard times?

A. There were. There
were hard, hard trying times.

Q. Were there times
that challenged you to your core?

A. Most definitely.

Q. Were there times
that challenged your religious convictions?

A. Yes.

Q. Were you intent on
sticking with your marriage vows, nevertheless?

A. Yes, I was.

Q. And to talk about
those hard times and how you felt about those hard times in a forum such
as this, how do you feel about that?

A. It is extremely
difficult for me to talk about Bart or . . . [my daughter]. Any time you
mention either one of their names, it just really strikes up some emotions
with me. They are the most important people in my life.

Q. But as far as the
hard times go -

A. I feel somewhat
ashamed of some of the things we went through.

Q. Does it scare
you?

A. Very.

After the witness was
tendered to the defendants for cross-examination, the following exchanged
occurred outside the presence of the jury:Counsel for DCC: Thank you, Your
Honor, in the absence of the jury,

Your Honor, I would
like to make my - first of all, my contention. My contention is that I
believe the so-called - the door has been . . . opened by the following
testimony of this witness; and with the door being opened, I can inquire
regarding the ups and downs of her marriages [sic]. She has testified,
Your Honor - basically all this is after lunch. That she and her husband
had an interest in music, theater, cooking, going to church. They liked to
travel together, visit family and go on outings, go fishing, take her
religious vows very seriously. They took the vow of death - "until death
do us part." They do not have a perfect marriage. They have had hard
times. The times have - sometimes have - the hard times have challenged
her religion and - and sometimes that - she is afraid - she is ashamed of
the times she has endured.

We believe that,
Judge, together with the video they have shown to the jury by the Ad
Litem, by the photographs that were exhibited by [Plaintiffs' counsel] . .
. . I think they are trying to get an issue on the loss of consortium, and
I believe that once you do that, you open up the door for us to inquire as
to the status of the hard times.

* * *

The whole testimony
has been to set up this nice family . . . [and] led the jury to believe .
. . that we destroyed a family and that they are entitled - under the loss
of consortium, they are entitled to recover for the loss of the
companionship, her grief and so forth. We believe we are entitled to . . .
come back and rebut those issues. I think they have opened the door.

THE COURT: Anything
else?

Counsel for DCC: Yes,
one more thing, Judge. She talks about her early . . . marriage and how
she met . . . Mr. Moran and so forth. We would like to be able to inquire
as to whether or not Mr. Moran . . . [was] previously married, whether or
not he withheld that information from her when they were about to get
married; and . . . [whether] he withheld from her . . . that fact of a
conviction.

* * *

Counsel for DCC: They
have offered and the Court has admitted testimony . . . of Viola Gonzalez,
question by [counsel for Plaintiffs] . . . , "How about . . . Yvonne's
relationship with Bart? How was that? Answer . . ., "She was determined to
make him into a good person, into the best husband possible she could
have. She just - I just know that she was everything to him and he was
everything to her." I would like to be able to follow that up, Judge, with
as to why her . . . sister is saying that she would have to make him a
good person. The whole family relationship is now open, Judge, and we
believe we are entitled to inquire into those areas.

THE COURT: I believe
that, of course, the . . . witness is fair game once she takes the witness
stand in so far as her marriage and the other positions you are taking.
However, I believe you can do that without bringing in the conviction or
any drug usage. Now, if you want to question her about the fact - and I
don't know. I am just assuming here with what you are saying - that - that
he was previously married and withheld that, that's fine. Go ahead.
Anything else related to . . . her relationship with Mr. Moran and the
hard times that they may have had; however, I don't think that you need to
get into the drug usage . . . .

Counsel for DCC: Very
well. I . . . want to follow the Court's order, Judge. They have set up
the picture of church attendings [sic] and church going. I would like to
be able to bring out the fact that during this period of time, one of the
reasons he went to CASA, which is the Christians Against Substance Abuse
from the church, is because he had been - during their marriage, he had
been admitted to Charter Hospital for substance abuse. He was there for
sometime, then left to live by himself with a friend. They got back
together again. I think I am entitled to be able to quiz her about why he
was at Charter Hospital, what was the diagnosis, and whether or not . . .
this man was using cocaine or not or substance abuse. The whole problem -

THE COURT: I think
you can inquire as to the fact that they were separated. I don't think
it's necessary to get into the fact that he had been in drug rehab. I
think you can question about the fact that . . . they were at one time
living apart. I think that's what . . . you are trying to get to. The fact
that it was because he had been in rehab adds nothing to it.

Counsel for DCC:
Judge, according to her deposition, the problem or the hard times they had
during their marriage was the fact that Mr. Moran was a . . . controlled
substance abuser. I mean, that was the whole problem. He didn't have a
steady job, and that was always a source of discord with the family. This
lady always worked, took care of her baby, was the main supplier of income
to the family. Her husband was not. Now, she is coming here today to the
Court to present herself as a good person, which she is a good person, the
question is whether or not she should be compensated by the jury for the
loss of this relationship. And she now set up the situation where we have
a video of Mr. Moran; we have seen - we have heard testimony that he is a
nice person and a family man, and he . . . always wore a seat belt, for
example. Our contention is, Judge, that people who are in a controlled
substance situation, people who two days before the accident had a
controlled substance, people who [are] of this nature are not the same
type of people who are going to be worried about seat belts. I mean, they
don't care about other people - they don't care about their body and they
don't care how they take care of themselves, and these aren't the same
kind of people that take care of wearing - always constantly always
wearing a seat belt.

So we would like to
be able to offer all this also to rebut this position that he always had a
habit [of wearing his seat belt]. We just do not believe that common sense
or common nature dictates, Judge, that a . . . person that has got a drug
habit or a drug problem throughout this period of time is a kind of person
who is going to worry about a seat belt. It's just not consistent with
that. So we would like to be able to show the jury that Mr. Moran is not
that kind of person[.] [We would like] to be able to rebut what they are
saying.

THE COURT: I think
you can do that without having to get into the - any drug usage or
addictions, whatever you want to call them.

* * *

Like I said, . . . it
is relevant; however, I think it's too prejudicial. I am not going to let
in it. There is means to address what you're concerned about - about
whether this man would be a good family provider. I believe that you can
quiz all you want about that and the fact that he didn't work or couldn't
hold a job. I believe you can quiz to the fact that they were separated.

* * *

Counsel for DCC: What
else can we quiz about, Judge? We can do all those things, Your
Honor?

THE COURT: I think
you can test the marriage. No doubt about it. All that can be done without
getting into his drug usage.

After DCC was allowed
to make two bills of exceptions, the jury was brought back into the
courtroom and DCC cross-examined Mrs. Moran. The cross examination covered
the Moran's marital history, their employment records, and past income.
Mrs. Moran described Mr. Moran's "difficulty in being the breadwinner of
the family." Her testimony established that Mr. Moran had held between
five and ten minimum-wage jobs during the three years of their marriage.
Counsel for DCC asked Mrs. Moran if her husband's difficulty in keeping a
job put a "strain" on their family relationship, and she agreed that it
did. Mrs. Moran testified that she and her husband had "some serious
problems" before their child was born. When counsel for DCC attempted to
question Mrs. Moran about the "serious problems," counsel for the
Plaintiffs objected and the following exchange occurred outside the
presence of the jury:

Counsel for DCC:
Judge, all I am trying to show, Judge, is that she does not have the type
of a family relationship that she claims to have to the jury, and she is
going to be asking for the loss of grief and companionship and the family
loss and - for this part of the damages. That's . . . what the Pattern
Jury Charge proposes. I think we are entitled to be able to show that she
doesn't have this particular - did not have this particular cozy
relationship with her husband. She had problems with him. She is concerned
about the addiction. They want to call it - I call it substance abuse;
they want to call it addiction, same thing. It's an addiction. And she can
explain the fact - if she wants to be able to say, My husband was dry for
the last - since he left Charter Hospital, fine. She can do that. They can
do that on redirect. I think I am entitled to show that it was a concern.

THE COURT: I still
haven't changed my mind.

The jury was brought
back into the courtroom, and DCC's cross-examination of Mrs. Moran
continued in relevant part:

Q. Well, did you have
a conversation with . . . [your doctor] regarding the

subject of your
husband's death?

A. I am certain that
I did.

Q. And did you
express an opinion to the doctor that at some point in time your marriage
had been so unbearable, so bad that - that you thought the only way out of
your marriage was if somebody was going to die - would die?

A. I remember that
conversation, and that's - that's a little bit out of context, but yes, I
remember that.

Q. Well, let me back
up - so we need to put it in context. The question I have for you is: Were
you talking to the doctor about your marriage?

A. I don't remember
specifically if we were talking about the marriage.

Q. Okay. Were you
talking to the doctor about some bad times of your marriage?

A. I think that would
be fair to say, yes.

Q. And would these
bad times in your marriage, that was a point in time toward the end -
toward the end of 1997?

A. If you are asking
me if we were talking about the months prior to his death?

Q. Let me back up.
You told this jury that you - you are taking the marriage vows very, very
seriously; correct?

A. Yes,
sir.

Q. And you told the
jury that you would only - you would only consider - you took the vows,
till death do you part, extremely seriously?

A. Yes,
sir.

Q. And that the only
way out of a bad marriage perhaps would be if somebody happens to die;
correct?

A. Specifically, we
were talking about . . . divorce.

Q. Right. In this
particular case, did you express to the doctor the fact that, you know,
there was [sic] times during your marriage that the only way for the
relationship to end would be if somebody would die?

A. That's correct
because I wouldn't have ever divorced my husband, that's
correct.

Q. You would take
your husband with all his good and all the bad?

A. You bet.

* * *

Q. I understand that,
and I respect that. I am just trying to put the context as to what you
were telling . . . [your doctor]. In that regard, were you expressing to
[your doctor] . . . a very sad part of your marriage? There was a part of
your marriage that was not happy times?

A. Yes, sir.

* * *

Q. Had your husband
been to the hospital?

Counsel for the
Plaintiffs objected before Mrs. Moran could answer the question, and the
following exchange occurred outside the presence of the jury:

Counsel for DCC:
Judge, he was doing fine all morning long until we came back from lunch .
. . and he goes into this litany. All these things that I submit to the
Court he opened the door when he talked about all these things about
family life. And so once up to that point, I think he was - we discussed
it. I am not going to ask any question about her family relationship
because he had walked on the line.

But right after
lunch, he comes in and talks about the interest in music, the theater,
church, traveling together, family visits, outings, fishing, giving this
picture of this great family relationship so he can be able then to argue
to the jury on the loss of consortium, and I submit to the Court, Judge,
that they have opened the door. They cannot on one hand tell us they have
got this great perfect life that we have happened to snuff out of her, all
right, and then be able to on the converse show that it wasn't a perfect
life. They had problems with this fellow. It just isn't fair for . . . our
hands to be tied to show the jury that he - they did not have a good life,
they did not have a perfect life, that they had problems because of this
man's particular problems with cocaine and addiction.

THE COURT: And I am
not restraining you from getting into the fact that they did not have a
good life or that they had problems in the relationship. I don't think you
need to get into cocaine to do that.

* * *

[Plaintiffs'
Counsel]: I don't think it's that way, Judge. She came out in direct
examination and admitted that there were things there that she was ashamed
of. I mean, it's not like we painted a very blissful picture and left out
the bad. We ponied it up in more generic terms and put it on the table.
[Counsel for DCC] . . . has been doing a fine job of portraying the
proposition that these folks had their troubles in their marriage. But if
it goes to the point of cocaine usage and at Charter Hospital and the
hospitalization for addiction that gets to the point of the - then it
becomes so prejudicial that it outweighs any relevancy that it may have.

The trial court ruled
in favor of the Plaintiffs, and the evidence of drug use and a prior
conviction was excluded from trial. As noted above, DCC now contends on
appeal that the rulings amount to reversible error. We
disagree.

b.
Analysis

"All relevant
evidence is admissible . . . ." Tex. R. Evid. 402. Relevant evidence is
"evidence having any tendency to make the existence of any fact more or
less probable than it would be without the evidence." Tex. R. Evid. 401.
Relevant evidence cannot be excluded simply because it would create
prejudice. See Tex. R. Evid. 403; Castro v. Cammerino,
186 S.W.3d 671, 681 (Tex. App.--Dallas 2006, pet. denied). Instead, there
must be a demonstration that the introduction of the evidence would be
unfairly prejudicial to the objecting party. Castro, 186 S.W.3d
at 681.

The record in this
case does not show any abuse of discretion. To the contrary, the trial
court engaged in a well-reasoned thought process and made rulings
calculated to allow the parties to fairly portray the couple's marriage
without relying on evidence of prior drug use and conviction. The rulings
demonstrate the trial court's concern that the excluded evidence would be
unfairly prejudicial. See Tex. R. Evid. 403.

On appeal, DCC states
that it "was not trying to show Mr. Moran was under the influence [of
drugs] when the accident occurred, but the proffered evidence went
directly to the issue of how Mr. Moran's addiction negatively affected his
marriage and how he did not have a substantial or reliable earning
capacity." Brief of Appellant DCC, p. 29. The trial court stated several
times that DCC could establish the same facts (i.e., a troubled marriage
and employment problems) without resorting to evidence of prior drug use
and felony conviction.

The record shows that
DCC did just that at trial. On cross-examination, Mrs. Moran testified to
having serious marital problems. She admitted to seeing a doctor about her
marriage. She also testified that her husband did not have a substantial
or reliable earning capacity, which put a strain on their marriage.
Although Mrs. Moran testified that she took her marriage vows very
seriously and would not have divorced her husband, we disagree with DCC's
contention that "Mrs. Moran portrayed her marriage as harmonious." Brief
of Appellant DCC, p. 26. DCC argues that the excluded evidence was
admissible to rebut the Plaintiffs' portrait of a "great perfect life,"
but the Plaintiffs never offered testimony of a "great perfect life." To
the contrary, Mrs. Moran admitted that her marriage had serious problems,
including problems caused by Mr. Moran's inability to support his family
financially.

The record shows that
the trial court allowed DCC to present evidence of the couple's marital
discord, as well as Mr. Moran's lackluster employment record and history
of low-paying jobs. The court stopped at Mr. Moran's drug use and
conviction, however, ruling that the evidence "adds nothing" to the case.
We share a similar view. We question what additional probative value the
excluded evidence would have offered the jury. The trial court ruled that
the risk of unfair prejudice greatly outweighed the probative value of the
evidence. We do not find any abuse of discretion in the trial court's
determination, especially because the court repeatedly guided DCC and its
counsel to alternative avenues of establishing the same probative facts
without causing any unfair prejudice to the Plaintiffs.

DCC contends that the
Plaintiffs "opened the door" to evidence of Mr. Moran's drug use and
conviction by counsel's direct examination of Mrs. Moran. We disagree. DCC
cites Stinson v. Arkla Energy Resources, 823 S.W.2d 770, 772
(Tex. App.--Texarkana 1992, no writ), for the proposition that "[a] trial
court may allow otherwise inadmissible evidence to rebut testimony." DCC
also cites Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727,
732 (Tex. App.--Beaumont 1991, writ denied), where the court held, "It is
clear that once appellees opened the door to the introduction of such
evidence, that the trial court could not in fairness close that door by
preventing appellant from rebutting and clarifying the patently unfair
impression created."

We do not disagree
with the decisions of our sister courts, but we are nevertheless
deferential to and in agreement with the trial court's rulings in this
case. The record shows that the trial court fully considered whether
unfair impressions would be created with or without the evidence of drug
use and a prior conviction. The trial court ruled that the excluded
evidence had become relevant, but it concluded that the unfairly
prejudicial effect of the evidence still rendered it inadmissible. We
believe this was the correct result.

There was no evidence
that Mr. Moran was under the influence of drugs on the day of the
accident. See Trans-State Pavers, 808 S.W.2d at 733 ("evidence of
alcohol consumption standing alone is inadmissible unless there is further
evidence of negligence or improper conduct on the part of the user as is
apparent in the case before us"). Nevertheless, DCC offered the evidence
of Mr. Moran's prior drug use for the specific purpose of establishing its
version of events on the day of the accident (i.e., that Mr. Moran was
somehow at fault, ostensibly because of his drug addiction). DCC was very
clear on this point at trial. It explained that drug addicts are different
from everyone else. It offered the evidence of Mr. Moran's drug use to
show that drug addicts "don't care about other people," "don't care about
their body," "don't care how they take care of themselves," and "aren't
the same kind of people that . . . take care of wearing a seat belt." DCC
offered the evidence to prove that Mr. Moran was not wearing his seat belt
on the day of the accident because he had a history of drug addiction and
a felony conviction. Even on appeal, DCC maintains that "it is likely that
the jury would have reached a different result on liability," if the
evidence of drug addiction and prior conviction had been admitted. Brief
of Appellant DCC, p. 29.

We believe this would
be true only because of the unfairly prejudicial effect of the evidence.
As we have already noted, DCC has not challenged the jury's finding that
Mr. Moran was wearing his seat belt at the time of the accident. DCC has
also not challenged the jury's finding that the seat belt buckle was
defective. In addition, there was no evidence at trial that Mr. Moran was
under the influence of any drugs or alcohol at the time of the accident.
Nevertheless, DCC argues that the "jury would have reached a different
result on liability" if it had simply learned that Mr. Moran was a drug
addict. Id. In our view, this is precisely the type of unfair
prejudice that Rule 403 was intended to prevent.

Having reviewed the
record, we conclude that the trial court's rulings were proper because
they were calculated to avoid an unfairly prejudicial effect that was so
powerful (at least in DCC's view) that it could have changed the outcome
of the case. DCC's first sub-issue is therefore overruled.

3. Evidence of
Customer Complaints

In its second
sub-issue, DCC contends that the trial court erred by admitting over
objection evidence of customer complaints. According to DCC, "The
complaints were inadmissible for several reasons, including that they were
hearsay and inadmissible under any exception, were not relevant, and were
unfairly prejudicial under Texas Rule of Civil Procedure 403." Brief of
Appellant DCC, p. 33. DCC complains that, "As admitted, they leave the
erroneous impression that DCC was aware of but disregarded a major safety
concern." Id. at 37.

As noted above, a
successful challenge to an evidentiary ruling usually requires the
complaining party to show that the judgment turns on the particular
evidence excluded or admitted. Alvarado, 897 S.W.2d at 753-54;
see also Tex. R. App. P. 44.1(a). We determine whether the
judgment turns on the challenged evidence by reviewing the entire record.
Alvarado, 897 S.W.2d at 754.

DCC argues that the
trial court's ruling gave the jury the "erroneous impression that DCC was
aware of but disregarded a major safety concern." Brief of Appellant DCC,
p. 37. Although DCC complains that it was harmed on the issue of notice,
it also argues that "[n]otice was not an issue in this case" because there
were no claims for punitive damages and because notice is not an element
of a design defect claim. Id. at 33 n. 8.

Under the
circumstances, we can only guess at what effect the error, if any, had on
the proceedings as a whole. See Tex. R. App. P. 44.1(a). It is
simply unclear how the evidence influenced the jury. We again find it
noteworthy that DCC has not challenged the finding of a design defect.
And, again, we question what harm (other than an erroneous finding of a
defect) could have been caused by the trial court's alleged error. For
these reasons, we conclude that DCC has not shown itself entitled to
relief.

DCC's second
sub-issue is overruled.

III.
Conclusion

We reverse the
judgment of the trial court in part and affirm it in part. See
Tex. R. App. P. 43.2(a), (c). Specifically, we reverse the portion of the
judgment holding Allied liable for damages and render a take nothing
judgment on the Plaintiffs' claims against Allied. See id.
43.2(a). The remaining portion of the judgment is affirmed. See
id. 43.2(c).

________________________
DORI CONTRERAS GARZA,

JUSTICE

Opinion delivered and filed

this the 17th day of
May, 2007.

1. A panel of this Court issued an opinion in this
case on August 27, 2003. See AlliedSignal, Inc. v. Moran, No.
13-00-00537-CV, 2003 Tex. App. LEXIS 7306 (Corpus Christi, August 27,
2003). The opinion reversed the underlying judgment and remanded the case
for a new trial. Id. The Plaintiffs subsequently filed a motion
for rehearing and motion for rehearing en banc. See Tex. R. App.
P. 49.1, 49.7. The motion for rehearing was denied by a panel of the Court
by separate order on May 17, 2007.

A member of the Court has requested a
vote on the Plaintiffs' motion for rehearing by the en banc Court. See
id. 41.2(c). The motion has been put to a vote. The Plaintiffs'
motion for en banc rehearing is granted, the panel's original opinion is
withdrawn, and the en banc Court issues the following unanimous opinion.
See id.

Justice Rose Vela did not participate
in the Court's decision.

2. The record shows that counsel for Allied objected
during the charge conference because "the Charge fails to submit
independent responsibility of AlliedSignal." The objection was overruled.
See Tex. R. Civ. P. 278. Later, at a post-verdict hearing on the
Plaintiffs' motion for entry of judgment, counsel for Allied made the
following argument:

In this particular case AlliedSignal .
. . was not submitted in any question to the jury - nowhere does our name
appear anywhere in the questions submitted to the jury in this case. . .
[T]he Plaintiffs seek to have you sign a judgment . . . that we are
jointly and severally liable for without there ever being a single issue
as to my client AlliedSignal ever being submitted to the jury. That is
fundamentally wrong and is not consistent with the case law. Question
Number 2 that the Plaintiffs submitted to you . . . is the question, "Was
there a design defect in the seat belt buckle in the Moran Dodge Caravan
at the time it left the possession of Chrysler Corporation?" Now, that may
be an issue against Chrysler. That is not an issue against AlliedSignal.
They could have submitted a separate issue on whether or not there was a
design defect in the seat belt buckle at the time it left the possession
of AlliedSignal. They didn't do that. That is not a liability issue
against AlliedSignal. We objected to it and the case law is very clear. It
cannot be more clear. This Court, if it's to follow the case law of this
state, should not enter judgment when no jury issue was submitted against
a defendant. . .

[T]here is evidence in this record
that indicates that the defect is caused because of the location of the
buckle in the car, its ability to be contacted during a wreck and its
inability to be guarded by the armrest. All that is in the record. It's a
fact issue. It needed to be submitted, but it wasn't. It wasn't. There is
no issue there that says this was a defect at the time that it left
Allied's possession that caused the injuries involved . . . .

Allied's objection was overruled, and
the trial court granted the Plaintiffs' motion to enter a judgment on the
verdict.

3. In sustaining the issue, we have rejected the
possibility that Allied's liability was established implicitly by the
jury's verdict. Texas law requires a specific finding that the buckle was
defective at the time it left the possession of each particular defendant
sued by the Plaintiffs. See Grinnell, 951 S.W.2d at 426;
Placencio, 724 S.W.2d at 22; Ponder, 443 S.W.2d at 548;
Wright, 717 S.W.2d at 155. Although Allied manufactured the same
buckle that was found by the jury to have had a design defect when it was
sold to Mr. Moran by DCC as part of the Dodge Caravan, it does not follow
that the buckle had a design defect at the time it left Allied's
possession. The existence of a design defect depends on whether a safer
alternative was available at the time the product changed hands. See
Tex. Civ. Prac. & Rem. Code Ann. § 82.05 (Vernon 1997). In other
words, the availability of a safer alternative determines whether the
product is "unreasonably dangerous." See Caterpillar, Inc. v.
Shears, 911 S.W.2d 379, 384 (Tex. 1995). For a particular seller to
be strictly liable, it must be established that a safer alternative design
was available when that seller sold the product. See id. ("If there are no
safer alternatives, a product is not unreasonably dangerous as a matter of
law.").

The Plaintiffs had the burden to prove
and secure a jury finding that the buckle was defectively designed when
Allied sold it to DCC--that a safer alternative existed at that point in
time. See Grinnell, 951 S.W.2d at 426; Placencio, 724
S.W.2d at 22; Ponder, 443 S.W.2d at 548; Wright, 717
S.W.2d at 155; see also Comment, State Bar of Texas, Texas
Pattern Jury Charges, PJC 71.4 (1997 ed.) ("The plaintiff must establish
that the product was in a defective condition at the time it left the
hands of the particular seller."). The Plaintiffs proposed no such
question, and they did not secure the required finding from the jury.

4. The "Issues Presented" section of DCC's brief lists
four issues. The fourth issue asks, "Did plaintiffs establish that their
expert's opinion was sufficiently reliable to be admissible on the issue
of whether the seat belt buckle was inadvertently released by bodily
contact, when the expert produced no analytical data or other evidence
supporting his opinion?" This issue has not been briefed by DCC, except in
DCC's first issue, where it contends that the testimony cannot be used to
uphold the jury's verdict.