Opinion
No. 12-01-00183-CV
Opinion delivered May 21, 2003
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and RAMEY, Retired Chief Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
MEMORANDUM OPINION DENYING REHEARING
Johnson Controls Battery Group, Inc. ("Johnson Controls") has filed a motion for rehearing, which is hereby denied. The opinion of February 28, 2003 is hereby withdrawn and the following opinion is substituted in its place.
Johnson Controls appeals the trial court's judgment rendered in favor of Joseph Runnels ("Runnels"), who sustained injury when his car battery, manufactured by Johnson Controls, exploded. Johnson Controls raises four issues on appeal. We affirm.
Background
Runnels was traveling via bus to Bossier City, Louisiana where his wife planned to meet him at the bus station. The two planned to drive the rest of the way to Tyler, Texas in Runnels's wife's car. After his wife's car failed to start properly, Runnels took a taxi from the bus station to the hotel where his wife and her car were located. Runnels arrived at the hotel early on the morning of July 11, 1998, immediately retrieved his spare keys from his suitcase, and attempted to start the car. When the car failed to start, Runnels raised the hood to inspect the battery. As he reached for the battery cable, the battery exploded. Runnels has no memory of any events surrounding the explosion. The battery (the "Runnels battery") had been installed in Runnels's wife's car only twenty months prior to the explosion.
Runnels sued Johnson Controls and others under theories of strict liability/design defect, strict liability/manufacturing defect, breach of express warranty, breach of implied warranty, malice and negligence to recover for personal injuries he sustained as a result of the explosion. At trial, Runnels argued that dangerous grid plate growth inside the battery caused a short that ignited the gases within the battery resulting in the explosion that injured him.
Simply put, a 12-volt car battery is composed of six couplings of alloy plates resting in a sulfuric acid solution. Each plate coupling includes a positive and a negative plate, which produces approximately two volts of electricity. Under ordinary circumstances, the battery plates undergo a certain amount of growth.
Dean Jacobson ("Jacobson"), Runnels's expert and a mechanical engineer, testified that, using a microprobe, he had examined five separate minuscule portions of the plates within the Runnels battery. Jacobson further testified that the alloy selenium serves, in part, to prevent excessive grid plate growth in the battery plate. He also testified that the element selenium was not detectable at all in four of the five tests he performed. Moreover, Jacobson testified that excessive grid plate growth led to an internal spark in the battery causing it to explode. Jacobson concluded that the battery was defective and unreasonably dangerous.
The size of the portion of the battery examined by each microprobe analysis was likened to an area approximately one hundred seventy times smaller than the tip of a paperclip wire.
The record reflects that selenium also serves to provides structural integrity to the grid plate structure.
Selenium was detected in excessive quantities in one of the five tests.
Edward Mrotek ("Mrotek"), a principal engineer in the product design group at Johnson Controls testified that the Runnels battery was "well-maintained." Mrotek acknowledged that ninety-five percent of Johnson Controls batteries lasted longer than the Runnels battery. He also testified that the Runnels battery "did not meet the standard." Further, Mrotek confirmed that the alloy selenium helps to curtail grid plate growth.
Ultimately, the jury returned a verdict in favor of Johnson Controls on theories of strict liability/design defect, breach of express warranty and malice, but against Johnson Controls on theories of strict liability/manufacturing defect, breach of implied warranty and negligence. The jury awarded Runnels past damages in the amount of $530,000, and future damages in the amount of $470,000.
Johnson Controls moved for judgment notwithstanding the verdict arguing that, while the verdict was based on the finding of a manufacturing defect in the battery, there was no evidence that the subject battery deviated from the manufacturer's specifications in any way. The trial court overruled Johnson Controls's motion and rendered judgment on the verdict for Runnels on March 20, 2001. Johnson Controls subsequently filed a motion for new trial which was overruled by operation of law.
Manufacturing Defect
In its first issue, Johnson Controls argues that there was no evidence to support the jury's finding that a manufacturing defect existed in the battery in question. In reviewing a "no evidence" point, we must consider only the evidence and inferences that tend to support the jury's verdict, disregarding all contrary evidence and inferences. See Wal-Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 936 (Tex. 1998). We may only sustain a "no evidence" point when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997). It is not within our power to second-guess the fact-finder unless only one inference can be drawn from the evidence. See State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928 (Tex. 1993). On the other hand, when evaluating a factual sufficiency challenge, we will consider and weigh all of the evidence in the case, both evidence supporting the verdict and evidence which tends to contradict the facts upon which the jury based its verdict. See In re King's Estate , 244 S.W.2d 660, 661 (Tex. 1951). We may not substitute our conclusions for those found by the jury and will reverse only if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id.
Admissibility of Expert Testimony
In response to Johnson Controls's first issue, Runnels contends that there is direct evidence that supports its manufacturing defect claim. One source of direct evidence noted by Runnels is the testimony offered by Jacobson. In its second issue, Johnson Controls argues that the trial court improperly admitted Jacobson's testimony. As our resolution of this portion of Johnson Controls's first issue is aided by our resolution of its second issue, the second issue will be addressed first.
In its brief, Johnson Controls addressed Runnels's direct and circumstantial evidence separately. Here we have initially focused on direct evidence. As we ultimately determine the evidence to be sufficient, we do not reach the issue of sufficiency of circumstantial evidence.
The standard for reviewing the trial court's admission of expert testimony is abuse of discretion. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts in an arbitrary or unreasonable manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex.R.Evid. 702. In light of the increased use of expert witnesses and the likely prejudicial impact of their testimony, the proponent of scientific expert testimony must demonstrate that such evidence is relevant and reliable before it can be admitted. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Scientific evidence which is not grounded in the methods and procedures of science is no more than subjective belief or unsupported speculation. Gammill, 972 S.W.2d at 720. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702. Id. There are many factors that a trial court may consider in making the threshold determination of reliability including, but not limited to (1) the extent to which the theory has been or can be tested, (2) the extent to which the technique relies upon the subjective interpretation of the expert, (3) whether the theory has been subjected to peer review and/or publication, (4) the technique's potential rate of error, (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community, and (6) the non-judicial uses which have been made of the theory or technique. Id. (citing Robinson, 923 S.W.2d at 556-57). The trial court's role is to make the initial determination whether the expert's opinion is relevant and whether the methods and research upon which it is based are reliable. See Robinson, 923 S.W.2d at 557.
Relevance
Johnson Controls argues that its specifications relate to the bulk alloy from which the plate is cast, and that testing only a small portion of the plate as it existed in the final product is not indicative of the composition of the bulk alloy. However, as Runnels notes, the jury was instructed that "a plaintiff has a manufacturing defect claim when a finished product (automobile battery) deviates . . . from the specifications or planned output." See American Tobacco Co. v. Grinnell , 951 S.W.2d 420, 434 (Tex. 1997) (emphasis added). Jacobson testified that when a bulk alloy is cast, the quantities of materials therein are not distributed evenly and do not exist in uniform proportions to one another throughout the plate. Relevant expert testimony must be "sufficiently tied to the facts of the case [so] that it will aid the jury in resolving a factual dispute." Id. at 558-59.
Johnson Controls has specifications for composition of bulk alloy, but no such specifications for the composition of the plates as cast in the finished product.
Both Jacobson and Mrotek testified that selenium helps to curtail excessive grid plate growth. It follows that if selenium is not present in a portion of the grid plate after it is cast due to uneven distribution, then it does not matter whether the proper quantities of selenium existed in the bulk alloy, as any portion of the finished product that is lacking in selenium can potentially be subject to excessive grid plate growth, despite sufficient quantities of the element elsewhere in the plate. As such, we conclude that the specifications for bulk alloy are not relevant because they have no bearing on the distribution of selenium throughout the finished product. Just as the jury was ultimately instructed to focus its attention on the finished product, Jacobson, as well, properly focused his examination on the finished product. Therefore, we conclude that analysis of the composition of the finished product was sufficiently tied to the facts of the case so that it would aid the jury in resolving a factual dispute, and was, thus, relevant.
In addressing the Robinson criteria, Johnson Controls often reiterates its argument related to testing the finished product versus the testing of bulk alloy. In the interest of brevity, our conclusion with regard to such an argument will not be recycled below in every instance in which Johnson Controls raised it.
Reliability
We next turn our analysis to the question of scientific reliability. In so doing, we examine the facts of the instant case in light of the factors set forth in Robinson, 923 S.W.2d at 556-57.
The Extent to Which the Theory Has Been or Can Be Tested
Jacobson testified that microprobe analysis is standard methodology for analyzing the types and percentage of elements in a structure. He further testified that microprobes have been used for years to analyze lead samples and batteries and that it is one of the few tools that can measure the composition of various particles. Moreover, Jacobson testified that the microprobe is used specifically to obtain scientific information upon which a metallurgist can base an opinion about presence and distribution of alloys in a substance and that it is particularly useful for analyzing the structure of a manufactured product. Finally, Jacobson testified that use of the microprobe for the purpose for which he used it had been tested and had been determined to be reliable science. Johnson Controls argues that (1) Jacobson did not attempt to determine if the Johnson Controls specifications were met at the time of manufacture, (2) the area sampled by Jacobson was extremely small, (3) a series of tests Jacobson performed had to be disregarded because the detection limit on the microprobe was set too high, and (4) although four of the five tests upon which Jacobson's conclusion was based detected no selenium whatsoever, the fifth test detected more than forty times the amount of selenium specified. However, none of Johnson Controls contentions address the extent to which the theory has been or can be tested.
The Extent to Which the Technique Relies Upon the Subjective Interpretation of the Expert
Jacobson testified that the microprobe is a device that produces scientific readings which are not derived by subjective interpretation and that the only interpretation necessary is (1) the operator's decision concerning where to set the "detection limit" and (2) from where within a structure the samples are taken. The detection limit for the five tests on which Runnels relies was derived from information provided by Johnson Controls. However, the location on the plate from which each sample was taken was determined solely by Jacobson. Given the minute area to be tested, it follows that five tests allow a very small look at the overall surface area of the battery. However, the trial court examined Jacobson extensively on this question. Even though he based his conclusion on only five tests, Jacobson testified as follows:
[I]t is good science because you can look at a cross-section of a sample, and you can see the various areas that you have. You have grain boundaries. You'll have precipitates, and you can look through the grain boundaries and you'll see the same things everywhere. The central grain structure will be the same everywhere.
So you can go in and pinpoint the various areas. You don't have to do many, many multiples of those areas. You'll get the same answers. I've been doing this for decades, and this is what you normally do.
Whether the Theory Has Been Subjected to Peer Review and/or Publication
In its brief, Johnson Controls's sole contention with regard to the peer review/publication factor is that Jacobson testified that he knew of no published literature advocating his methodology for testing a bulk sample of an alloy for its constituents. Irrespective of whether such a statement accurately recounts Jacobson's testimony, as set forth above, testing of a bulk or homogeneous sample, rather than a finished product, is not relevant. On this point, Jacobson testified that "there are hundreds, if not thousands, of papers that have been published by people all over the world who use microprobes in exactly the same way that [Jacobson] did[,]" and that he "could bring [the court] a stack of papers as high as [it wanted] in regard to the utilization; [and] also textbooks." Specifically, Jacobson directed the trial court to "The Metals Handbook," which he referred to as "the bible of material science," and testified that it had entire chapters on the utilization of microprobes.
When questioned about publications regarding testing of bulk or homogeneous alloy samples, Jacobson testified that he did not have any such publications with him, but was sure he could find some.
The Technique's Potential Rate of Error
In its brief, Johnson Controls argues that (1) Jacobson did not attempt to compare his post-manufacture microprobe results with results from any other battery, (2) Jacobson admitted that the chemical elements for which he was testing would normally segregate in the granular structure so that the location he was testing would not be expected to include all of the elements in the specification, (3) corrosion of the alloy led to the migration of various elements, and (4) there was no evidence that Jacobson's tests would show the condition of the alloy when it left the control Johnson Controls. Jacobson testified that the relative error rate in microprobe analysis is one-tenth of one percent.
Whether the Underlying Theory or Technique Has Been Generally Accepted as Valid by the Relevant Scientific Community
Johnson Controls's argument on this point focuses entirely on use of a microprobe with respect to bulk alloy rather than finished product. However, with respect to a finished product, Jacobson set forth that microprobe use is "standard methodology" in metallurgy, has been the subject of hundreds, if not thousands, of publications, has been addressed in textbooks, and has several chapters dedicated to it in a metallurgical reference book that Jacobson referred to as "the bible of material science." Jacobson testified that microprobe analysis is used throughout the field to obtain information on which an expert can base a scientific opinion exactly as he did in the present case.
The Non-Judicial Uses Which Have Been Made of the Theory or Technique
Again, Johnson Controls focuses on the microprobe's potential use for the testing of bulk alloys. Clearly, microprobe analysis can be used in aid of litigation, as it was in the case at hand. However, as Runnels notes, Jacobson testified the technique has also been included in textbooks, as well as "The Metals Handbook," and is commonly used in industry.
Our review of the record indicates that, considered in light of the criteria set forth in Robinson, the expert testimony offered by Jacobson was reliable. Of the seven Robinson factors, six weighed heavily in favor of the admissibility of Jacobson's testimony. Even considering the fact that microprobe analysis is somewhat subjective inasmuch as Jacobson determined which areas to test, the record indicates that Jacobson tested various zones of the grid and stated that it was not necessary to conduct multiple tests in the same areas as the results would not differ. Based on our review of the record, we are satisfied that in admitting Jacobson's testimony, the trial court did not act without reference to guiding rules and principles nor did it act in an arbitrary or unreasonable manner. Therefore, we hold that the trial court did not abuse its discretion in admitting Jacobson's testimony. Johnson Controls's second issue is overruled.
Evidentiary Sufficiency
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. See Grinnell, 951 S.W.2d at 426 (citing Restatement (Second) of Torts § 402A (1965)). A product may be unreasonably dangerous because of a defect in marketing, design or manufacturing. See Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). A plaintiff has a manufacturing defect claim when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Grinnell , 951 S.W.2d at 434.
The record in the instant case indicates that a car battery delivers an electrical charge of approximately twelve volts to start the car in which it is installed and is also used to supply electrical power to accessories in the car, such as the headlights, for the battery's useable life. The Runnels battery exploded after no more than twenty months of use. Mrotek testified that ninety-five percent of Johnson Controls batteries lasted longer than the Runnels battery. Mrotek specifically noted that the Runnels battery "did not meet the standard." Moreover, Mrotek testified that the batteries are designed to be handled, cleaned of corrosion, installed in the vehicle by tightening the battery cables, and held in place. Both Mrotek and Jacobson testified that the alloy selenium helps to curtail excessive grid plate growth. Jacobson further testified that the element selenium was not detectable at all in four of the five tests he performed on the Runnels battery. Moreover, Jacobson testified that excessive grid plate growth led to an internal spark in the Runnels battery causing it to explode. Jacobson concluded that the Runnels battery was defective and unreasonably dangerous.
From such evidence, we conclude that the jury reasonably could have concluded that Johnson Controls had a standard regarding the expected productive life span of its batteries. Moreover, the jury could have reasonably concluded that the battery was unreasonably dangerous considering Mrotek's testimony that batteries are designed to be handled under normal use and considering Jacobson's testimony that the battery was unreasonably dangerous due to the fact that it exploded and injured Runnels. Further still, even though the record reflects that other alloys, such as arsenic, also serve to curtail excessive grid growth, the jury could have reasonably determined that the absence of selenium caused the excessive grid growth in question. Considering only the evidence and inferences that tend to support the jury's verdict, and disregarding all contrary evidence and inferences, we hold that there was sufficient evidence to permit the jury to find that a manufacturing defect existed in the battery in question.
In its brief, Johnson Controls also sets forth the standard of review for factual sufficiency. However, Johnson Controls does not specifically pursue such an argument. Nonetheless, we have reviewed the record in its entirety, considering and weighing all of the evidence therein. We iterate that we may not substitute our conclusions for those found by the jury unless we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re King's Estate , 244 S.W.2d at 661. Johnson Controls has not cited to any such evidence, nor have we, based on our review of the record as a whole, uncovered any great weight and preponderance of evidence that causes us to conclude that the verdict is manifestly unjust. We further hold that the evidence was factually sufficient to support the jury's verdict. Johnson Controls's first issue is overruled.
Breach of Implied Warranty/Negligence
In its third issue, Johnson Controls raises a "no evidence" challenge to the jury's finding on Runnels's breach of implied warranty claim. In Johnson Controls's fourth issue, it raises a "no evidence" challenge to the jury's finding on Runnels's negligence claim. The jury's damages award was conditioned on its affirmative liability finding related to Runnels's design defect, manufacturing defect, breach of implied warranty or negligence claims. As we have concluded that the evidence was sufficient to support the jury's finding on Runnels's manufacturing defect claim, we need not address Johnson Controls issues related to Runnels's remaining claims. See, e.g., General Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex. 1999); Tex.R.Civ.P. 277.
Conclusion
For the reasons set forth above, we hold that the trial court did not abuse its discretion in admitting Jacobson's testimony. We further hold that the direct evidence was both legally and factually sufficient to support the jury's verdict. As such, we need not consider Johnson Controls third and fourth issues.
Accordingly, we affirm the judgment of the trial court.