Damian v. Bell Helicopter Textron, Inc.

create issue before Having list does not overruled sole on the CSOT’s included remand, of Chamberlain’s substantive the trial court’s a violation us on we affirm means that rights; simply it relief. process denying corpus due habeas order CSOT, via in consider legislature, committed category of offense ation of the Chamberlain, Tex has determined that protect should continue to be citizens

as’s type of sexual of this perpetrators

ed from judicial To hold otherwise would

offense. on the

ly inclusion of all offenses mandate in order to make the statute list

CSOT’s process due constitutional pass substantive DAMIAN, Vargas Maria de In Lourdes of of which The determination muster. dividually, as Next Friend Nicole eligible deregistration for should be fenses Vargas, Rep Damian and as Denisse legislature best left for the is a matter of Demetrio resentative the Estate v. like the See Flores designees, CSOT. Chen, Deceased; Guillermo Damian State, 129, (Tex.Crim.App. 904 S.W.2d Individually Gasperi, Rep and as Jose 1995) disparate (rejecting defendant’s resentative of the Estate of Gloria accepting it argument treatment Deceased; Gasperi, Gasperi, Carla In consequences lead unintended would dividually Representative and as decide), the legislature left for better Gasperi, the Estate of Gloria De 716, denied, 1050, 516 U.S. 116 S.Ct. cert. ceased; Angela de Lassen Gas Cecilia (1996); Safety accord 133 L.Ed.2d Legal Represen peri, as and Personal 157, State, v. Corp. Nat’l Cas. Gasperi; tative of the Gloria Estate of (Cochran, J., con- (Tex.Crim.App.2008) Garay Barrios; Ricardo Adolfo Loren statutory curring) (explaining that inade Romagosa Acrich; and Ida Roma zo legislature left are best to the quacies Aranjo, gosa Appellants Appel de M.A.H., In remedy); see also re lees, 2000, 860, (Tex.App.-Fort 865-66 Worth J.W., pet.); re 272 Ill.Dec. Ill.2d (recognizing 787 N.E.2d TEXTRON, BELL HELICOPTER require test rational basis does INC., Appellee Appellant. public protecting statute be best means of up legislature that it is No. 02-08-00210-CV. whether statute is best courts to determine Texas, of Appeals Court results), achieving cert. for desired

means Fort Worth. nom., Illinois, J.W. v. 540 U.S. denied sub (2003). 157 L.Ed.2d 133 124 S.Ct. 31, 2011. Aug. provide Texas Because the SORP does early deregistration mechanism for circum offenses and under certain

certain and the legislature dictated

stances

CSOT, require registration the lifetime rationally legiti

ment is related to Texas’s protecting interest its citizens

mate predators. We overrule

from sexual second issue.

Chamberlain’s Musselwhite, B.

Benton Newton Schwartz, Sr., Houston, Keith, Darrell Fisher, Worth, Mark Fort Joe J. C. Beaumont, Appellants Ap- Sparks, pellees. Howell, Sams,

Stephen C. John Jason C. Moon, Brown Hart Dean Wiseman Proctor LLP, Worth, Howell, & Appellee Fort for and Appellant. DAUPHINOT, GARDNER,

PANEL: WALKER, and JJ.

OPINION GARDNER, ANNE Justice.

I. Introduction against Appellants1 filed this lawsuit Textron, Helicopter Inc.2 on Appellee Gasperi, legal Appellants-Cross Appellees are Ma- Cecilia Lassen as and 1. Lourdes la de Damian, personal representative individually, of the estate of Gloria Vargas ria de as next Barrios; Garay Gasperi; Ricardo Adolfo Lor- Vargas, friend to Nicole Denisse Damian and Acrich; Romagosa Romagosa and enzo Ida representative as the estate Demetrio Ap- Chen, Aranjo. Appellants-Cross We deceased; de refer to Guillermo Damian Jose Gas- pellees collectively Appellants. as peri, individually representative and as deceased; Gasperi, estate of Gloria Carla individually Gasperi, representative Appellant 2. Appellee-Cross and as We refer to deceased; Ange- Gasperi, of Gloria Bell. estate 25, 2002, January alleging, among other Rebecca and Gloria Gasperi, flew on a Bell things, products strict liability negli- and 407 helicopter from City Panama to con- gence, relating to the crash of a Bell 407 duct business at one of Café Duran’s farms Sona, helicopter. proceeded The case jury to a Panama. Captains Damian and August Garay trial in and the jury piloted returned the helicopter. After the family its verdict on September 2007. The conducted its business at the com- farm, jury pany found that there was a defect stayed Lorenzo’s father Sona, in the helicopter; negligence Captains and Damian and Garay, Lorenzo, helicopter Ida, Bell and one of the pilots, Cap- and Gloria boarded the heli- Damian, Appellants’ injuries; copter tain caused for flight the return to Panama Captain City. that Bell and Damian Visibility good area, were each in the fifty-percent responsible causing they experienced no problems for most of resulting injuries; flight. accident and $294,300.

Appellants’ damages totaled Approximately fifty minutes into the also found that Bell did not act flight, ten minutes from Panama with malice. The signed trial court the City, Lorenzo heard Captain Garay say, judgment final on February “birds ahead.” Approximately thirty to later, sixty All parties appeal from seconds Lorenzo judgment. Captain heard Appellants Garay say contend in six issues that “watch out” in a high tone of trial court voice. permitting erred Lorenzo testified equita- helicopter bly-adopted maneuver, then made an abrupt children to assert wrongful and he claims, death felt the helicopter pull there is insufficient evi- nose up drastically, noise, comparative dence of heard a loud negligence, that the noticed a lot of wind cabin, going through the damage against awards are great saw a bird weight evidence, pass by preponderance him and hit Gloria in right and that helicopter the trial court shoulder. The should have con- had struck a bird, ducted a which hearing penetrated and ordered a new trial windshield and for alleged juror entered into the misconduct. In its cross- cabin. Lorenzo testified appeal, Bell he was thinking point contends in six issues all at that crash; Appellants’ would claims are barred both of his aunts limitations, screaming, Panamanian statute of were that the and there were a lot of trial court should have feathers and wind in the dismissed the sur- cabin. estate,

vival claims Gloria Gasperi’s Lorenzo Captain testified that Garay that the design-defect negligence and called out Captain Damian’s name and claims submitted to the preempt- are then asked him help. for The bird had hit law, ed federal and that is there head, Captain Damian in the and he had design-defects. We affirm in slumped controls; over the helicopter the part and reverse and render in part. Captain bird did not hit Garay. Lorenzo belt, unbuckled his seat moved behind II. Background Factual seat, Captain Damian’s pull and tried to Appellant Lorenzo Romagosa Captain testified Damian back from the controls so that he manager is the purchasing the that Captain Garay fly could the helicop- export Duran, and department of Café ter. Lorenzo testified the helicopter was company coffee family fast, his owns in “going Panama down” Captain Garay and was City, 27, 2000, January Panama. On trying Lor- helicopter. to control the Lorenzo enzo, father, aunts, his and two of his just Ida testified that after he pulled Captain cross-examination, controls, acknowl- the he sat On Ross from

Damian back Bell 407 has excellent visi- edged that the Captain “split Damian sec- the seat behind maneuverability and the and that as- bility helicopter into the crashed onds” before acrylic gets on the Bell 407 cast windshield terrain. He that the said the mountainous clarity. optical marks” for Ross tes- “high de- slope the and rolled or helicopter hit important, that clear windshield is tified All stopping. hill before scended down the very expensive re- that windshields are occupants injured the were helicopter’s time wait- and that the down while place, crash, Captain Damian’s and in the and un- ing replacement for a windshield were fatal. injuries Gloria’s the that Bell 407 is wanted. Ross said as air- Bobby Appellants’ testified Ross he that agreed Part 27 and helicopter, helicop- reconstruction and craft accident all 27 aircraft virtually Part have as-cast the He that pilot expert. ter testified acrylic windshields like Bell 407 and that was Bell 407 and helicopter crashed bird-impact that there are no resistance was manufactured the Federal Aviation helicopter requirements under (FAA) Regula- in 1998. Based on his re- Act the Federal Aviation and delivered for Part 27 aircraft. also testi- tions Ross evi- physical view of the and helicopters larger, that Part 29 are accident, fied an prepared dence from the Ross require Part 29 regulations that federal reflecting his reconstruction of animation 2.2-pound helicopters to resistant crash, flight and he described and windshields, hit that the black vulture that jury. in detail Ross the animation weighed significantly Bell 407 more at helicopter flying was testified that pounds, than 3.5 the bird was 1,500 speed air at 120 knots forward significantly larger than even Part 29 heli- just colliding level feet above sea before are resist. copters designed to bird, testi- with the a black vulture. Ross Hinds, Garay Billy Appellants’ were ex- Captains fied Damian and windshield engi- pert, aircraft structural they they could negligent, not did all thirty years’ experi- neer with more than helicopter passengers, to save the and its designing transparencies. aircraft ence proximately cause they and that did designed bird-impact He has resistant the accident. the F-lll windshields aircraft $uch helicopter Ross that the hit the testified jet, jet, F-17 stealth fighter fighter tail-first; the bottom of the terrain the B-l He testified at trial bomber. hit, landing helicopter pushing then acrylic in the as-cast body; inches into gear nineteen unreasonably dangerous Bell 407 hill; slid down the that the helicopter defectively designed it was off; but that Gloria was still doors came bird-impact resistant and that the defec- helicopter inside the restrained proximate producing tive was a time. averred that Ross Hinds cause of crash. testified that slide upright remained two-thirds of its acrylic inch and 0.14 stretched windshield hill; the marks on the down the inch are polycarbonate a 0.1 windshield wreckage right that it suggest slid on alternative materials than the as-cast safer Gloria Captain side where Damian and the Bell acrylic windshield on 407 and seated; were but that door right-side the technologically economically were and both the allow- separated helicopter, had from manu- feasible at time the 407 was partially during in He also ing ejected Gloria to be factured 1997. testified in properly 1997 to sequence. technology the crash existed

133 acrylic polycarbonate impliedly “mate” stretched ulations have preempted field helicop- helicopter of the windshields structure and bird- an with a resistance conflict impact through preemp- ter and resist bird. strike tion. Muzzy, William seatbelt ex- Appellants’ system testified about the restraint

pert, Preemption A. Law wearing was the time of the Gloria at preemption Federal of state law and how it allowed her to improperly crash grounded in the Supremacy Clause of partially ejected helicopter from the be Constitution, the United States which pro during sequence. Using the crash the ani- vides that “the Laws of United States Muzzy mation of the crash sequence, dem- Land; ... shall be the Law supreme each of times that onstrated Gloria’s the Judges every State shall be restraint would have locked and then un- thereby, any Thing bound in the Constitu Muzzy locked. that even though testified tion or Laws of any State to the Contrary on, still Gloria had her seatbelt she was VI, notwithstanding.” U.S. Const. art. cl. partially ejected from the dur- 2; Lines, Black, Delta Air Inc. v. 116 ing the crash because the sequence locking 745, (Tex.2003); S.W.3d 748 see MCI Sales system unlocking the restraint al- Serv., Hinton, 475, & Inc. v. continually lowed the seatbelt to extend to (Tex.2010). Supremacy Under point where it not restrain her in did Clause, if a state law conflicts with federal helicopter. her seat or even inside He law, the preempted state law is and will system testified that the restraint worked Louisiana, have no effect. v. Maryland designed as it was that it have but should 725, 746, 2114, 2128-29, 451 U.S. 101 S.Ct. it designed been so that would not lock Black, (1981); 68 L.Ed.2d 576 Muzzy and unlock. testified the re- 748. We presume at federal law does not system in the Bell 407 was unrea- straint police bar state’s exercise of its historic sonably dangerous that the use of clearly unless powers Congress expresses system negli- restraint in the Bell 407 was the intent such preempt state action. gence. Muzzy that the MA- also testified N.Y. State Blue Cross & Conference of 16 was a safer than alternative Co., Blue Shield Plans v. Travelers Ins. system restraint in the Bell 407 because 645, 655, 115 1671, 1676, 131 514 U.S. S.Ct. sensing the MA-16 has an omni-directional 695(1995). L.Ed.2d retractor that would not allowed Glo- during ria’s seatbelt unlock crash Congress purpose of sequence. Muzzy that “the lack testified every ultimate touchstone preemption sensing omni-directional vehicle re- case. Retail Ass’n v. Clerks Int’l Scherm ... tractor in the proxi- aircraft erhom, 96, 103, U.S. S.Ct. being ejected mate cause of [Gloria] (1963); Black, 11 L.Ed.2d 179 subsequent death.” [her] congressional 748. We discern primarily intent from the statute’s lan Preemption III. Federal Medtronic, Inc. guage structure. issue, Lohr, its first contends 518 U.S. 116 S.Ct. 2250-51, (1996); Black, regulations, FAA and related federal L.Ed.2d through preemption, impliedly field 116 S.W.3d at Also relevant is the whole, all preempt relating purpose common-law claims of the statute as which helicopter design through reviewing airworthiness. Al- revealed and is “the court’s ternatively, Bell of reg- understanding way contends federal reasoned

134 and airworthiness. helicopter design the statute and Congress intended which although “claims counter that Appellants to af- surrounding regulatory scheme management, airspace regarding prices, consumers, law.” business, and fect to warn” and failure pilot qualifications, 486, Medtronic, Inc., 518 at 116 S.Ct. U.S. throughout courts preempted, are Black, 2251; at 748-49. 116 S.W.3d at FAA country determined of sev “Preemption can take one do not regulations related federal and Black, at 116 S.W.3d 748. forms.” eral claims manufacturers for preempt against when a federal preemption occurs Express party product designs. Neither defective preempts state law. may expressly law binding precedent governs our cites Trailers, Id.; v. Estate Dane Inc. Great of analysis.3 (Tex.2001). Wells, 737, 743 A 52 S.W.3d may preempt also impliedly law federal and Remedies a. Texas Civil Practice “(i) of when scheme federal law state Code 82.008 Section sufficiently comprehensive to regulation is remedies Citing practice civil code inference that Con support a reasonable 82.008, argues “Texas’s section state supplementary left no room for gress position preemptive on the public policy (ii) actually if law the state regulation safety is clear” regulations effect of federal Black, federal regulations.” with conflicts section 82.008 “creates ‘rebutta- because 748; Hinton, 329 S.W.3d 116 S.W.3d at see non-liability for defec- presumption’ ble presents A state law actual at 482. question if the ‘com- product tive with party comply when a cannot conflict safety plied mandatory with standards or regulations, federal or when both state and adopted regulations promulgated Congress’s state law would obstruct ” Tex. government.’ See the federal Civ. Hinton, objectives. 329 See purposes 82.008(a) (West §Ann. Prac. & Rem.Code 482; Black, at at 748. S.W.3d 2009). for several reasons. disagree We Appellants’ not contend that Bell does First, in every the ultimate touchstone Thus, we expressly preempted. claims are Congress, case the intent preemption inquiry types the two confine our Schermerhom, public policy. not Texas preemption field implied preemption: 103, 222-23; Black, at at 375 U.S. 84 S.Ct. Black, preemption. See 116 conflict Second, Appellants at 748. Trailers, 748; 52 at Great Dane S.W.3d lawsuit before the effec- filed this in 2002 at 743. S.W.3d tive date of section 82.008. Act R.S., 204, 2, 2003, ch. Leg., June 78th Analysis B. 847, 861; 5.02, § 2003 Tex. Laws see Gen. Preemption 1. Field Corp. Burry, v. 203 also Gen. Motors 514, law, (Tex.App.-Fort Worth Bell first that federal 549 contends denied) pet. (noting section preemption, impliedly field through filed on or after applies only claims 82.008 to suits relating all common-law preempts gent equip an automobile with an parties failure do reference Geier American Co., airbag preempted it conflicted 120 Motor 529 U.S. S.Ct. Honda (2000) City applicable law. 529 U.S. at L.Ed.2d federal Inc., 881-82, Terminal, City In S.Ct. at 1925-26. v. Lockheed Air Burbank Burbank, Supreme held that the L.Ed.2d Court 93 S.Ct. U.S. (1973), preempted field of aviation noise control neither addresses issue but case Geier, safety. field of aviation Supreme but did not address the presented here. Court 638-40, negli- 93 S.Ct. at 1862-63. action for 411 U.S. that a common law tort held

135 2003). Third, 44704(d); § pre- service. See 49 July rebuttable U.S.C. after sumption § 82.008 arises section 21.183. C.F.R.

the manufacturer “establishes argues “type Bell certificate” complied ... with manda- product’s design regulations procedural “illustrate that the tory safety regulations or ... standards Federal Aviation Administration is intri- applicable product that were involved cately design any with the new governed and that time manufacture any aircraft and modifications to the de- allegedly harm.” product risk that caused However, sign.” the court Monroe v. & Ann. Tex. Civ. Prac. Rem.Code reject- Cessna Co. addressed and Aircraft 82.008(a). § to point But Bell does not very argument. ed this 417 F.Supp.2d See regulation setting federal or statute (E.D.Tex.2006). so, In doing safety mandatory applica- forth standards stated, court to bird for Part 27 aircraft like ble strikes FAA’s three-phase pro- The certification involved in this cess aircraft perva- for does not create a Thus, section applied, case. even if 82.008 regulatory sive scheme demonstrating design has not established that its by Congress preempt intent to either man- complied applicable the Bell 407 safety the field aviation or state defec- datory safety regulations. standards or design regulations tive claims.... [T]he Therefore, persuaded we are not sec- requiring process do certification 82.008, tion a statute enacted after this safety themselves set out and design filed, a suggests requires lawsuit was standards.... The regulations do finding Appel- law preempts federal safety the design control of an air- design negligence lants’ defect claims provide craft are broad and non[-]ex- relating Helicopter. to the Bell 407 requirements haustive list of minimum leaving discretion to the manufacturer. b. FAA Certification Process example, For the regulations governing Bell also that the FAA cer argues flight manual’s contents leave room for pre process tification is evidence of field necessary “other information that emption. FAA applicable Under the design, operat- operation safe because of regulations, a manufacturer must receive a ing, handling characteristics.” “type manufacturing certificate” before regulation lists the re- [And] aircraft, indicating approv new the FAA’s quired flight contents of an aircraft man- of an al aircraft’s basic and ensur list.... ual has non-exhaustive appli that the ing design complies with all process looks these safe- certification regulations. cable FAA See 49 U.S.C. ty design regulations set out 44704(a) (2006); § § 21.21 C.F.R. FAA does not in of itself but consti- (2005). The ob- manufacturer must then pervasive scheme evi- regulatory tute a “production indicating certificate” tain Congress an intent dencing manufacturing the FAA’s approval safety. preempt field aviation that will used to construct the process be (internal omitted). Sig- Id. at citations approved design. 49 U.S.C. 44704(c); a claim for 21.139, nificantly, Monroe involved § §§ .143 C.F.R. (2005). “failing and manufacture air- Finally, owner of the aircraft potential damage craft reduce structural must obtain an “airworthiness certificate” from a bird strike.” Id. at 826- prove resulting is in a operating aircraft safe agree 27. We with the Monroe court’s type condition and conforms certifi- analysis pro- cate before the aircraft can be into and hold that the certification put failing pre- in and of itself constitute for to take reasonable cess “does not claims evidencing scheme condi- pervasive regulatory cautions to avoid known turbulent to of by Congress preempt intent field failing so that give warnings tions and to Id. at 833. safety.” aviation protect could themselves plaintiffs injuries they from the sustained due Implied Preemption in c. flight. Id. at during severe turbulence Fifth Circuit feder- 365. The court found “relevant Lines, Witty v. Air Inc. cites Delta complete al and thor- regulations establish argues “implied preemption and ough safety and standards for interstate alive and well in the Circuit.” See [Fifth] air that are transportation international (5th Cir.2004). Witty F.3d 383-85 vari- subject supplementation by, not in a Louisiana federal sued Delta district among, jurisdictions.” Id. at 367. ation he developed deep court vein alleging Thus, the Abdullah court held that “feder- flight while on a from Louisi- thrombosis applicable al standards law establishes Witty ana to at 381. Connecticut. Id. safety, generally, in the of air care field alleged Delta negligently failed preempting thus the entire field from state deep warn risks passengers about the regulation.” and Id. territorial pressurized vein thrombosis cabins provide adequate negligently leg failed Sixth, Ninth, However, from the cases prevent deep room to vein thrombosis. Id. and Eleventh Circuits conflict with Abdul- argued Witty’s at 382. Delta claims cases, respective lah. In each those Fifth preempted, were and the Circuit preempt that the FAA did not courts held agreed regulatory held that “federal product claims similar to those defective requirements passenger safety warn- by Appellants in this case. See asserted ings and instructions are exclusive and Express Holdings, v. Martin Midwest preempt require- all state standards and (9th Cir.2009) Inc., F.3d 808-12 However, ments.” Id. at holding (distinguishing Abdullah narrowly Witty applica- court limited plaintiffs design claims for defective opinion, stating tion of its “we note our FAA); preempted by aircraft stairs narrowly intent decide this case ad- Sys., v. B.F. Greene Goodrich Avionics dressing precise issues before us.” Id. Inc., 784, 788-89, 791, 409 F.3d 794-95 Thus, while implied preemp- at 385. field (6th Cir.2005) (citing Abdullah to find may tion be “alive well” the Fifth FAA failure to warn claim but preempted suggests, Witty opinion Circuit as Bell defectively applying state law to claim Appellants’ itself does not address whether navigational manufactured instrument and design relating helicop- defect claim concluding plaintiff did offer sufficient preempted. ter’s defect); a manufacturing evidence of Pub. d. Other Jurisdictions Cnty., Health Trust Dade Fla. v. Lake (11th Inc., 291, 292, Aircraft, 992 F.2d Airlines, Citing Abdullah American Cir.1993) (holding preempt FAA did not (3rd Inc., Cir.1999), 181 F.3d 363 Bell ar- claim). passenger’s design defective seat gues that we should hold “that the FAA addition, In a federal district court in Tex- impliedly preempts common-law preempt as held that FAA did not claims air- related Abdullah, relating defective claims state-law worthiness.” Third Cir- safety law to bird-strike standards. See Mon- cuit addressed whether federal roe, preempted plaintiffs’ F.Supp.2d common-law at 836. (1)

Although binding these cases are that a common-law standard that is reasoning we find the from the precedent, stringent more than a regulation federal is Ninth, Sixth, and Eleventh Circuits and preempted if there evidence that persuasive. district Al- the federal court agency federal rejected considered and many (2) the FAA though regulates aspects of more stringent standard and that an “ aviation, itself, nor “[n]either the its agency’s [FAA] ‘delicate balance’ of cost or effi- history an intent legislative evidence ciency safety respected.” versus should be entire Congress preempt field Geier, 879-81, See 529 at 120 U.S. S.Ct. at Instead, safety. the [FAA] aviation 1924-25; v. Gen. Corp., Carden Motors legislative history demonstrate an ac- (5th Cir.2007); F.3d 509 231-32 BIG knowledgment by Congress that state law Carter, v. Corp. Pen 506- are tort claims viable under (Tex.2008). [FAA].” However, 07 Bell does not 830; Martin, 809-12; at see F.3d at Id. 555 point the Federal Inc., Aircraft, at Lake 992 F.2d 295. We Aviation Administration considered mini- FAA impliedly to hold that decline mum standards for bird-strike resistance preempts the field of common-law claims on Part 27 aircraft like the Bell 407 at and airworthi- related Instead, issue this case. points Bell ness, part and we overrule this Bell’s only to evidence that the Federal Aviation first issue. Administration considered bird-strike safe- ty proposals relating Part 29 “trans- Preemption

2. Conflict port” aircraft. Without evidence that the Bell also contends federal Federal Aviation Administration consid- regulations impliedly preempted rejected ered and minimum bird-strike regarding helicopter claims windshield de aircraft standards Part 27 like the Bell and bird-strike sign through resistance 407, Bell has not its “difficult met burden preemption. Bell ar Specifically, conflict overcoming presumption against gues regu that because there is federal Trailers, Dane preemption.” 52 Great requiring Party “transport lation cate 29 S.W.3d at 743 (citing Silkwood Kerr- helicopters “capable gory” to be of safe 238, 255, Corp., McGee 464 U.S. 104 S.Ct. impact by flight landing after a 2.2 615, 625, (1984)). L.Ed.2d To bor- at pound bird certain velocities” and “there row the language Monroe court’s discuss- comparable for requirement ‘normal’ ing field “If preemption, anything, spe- helicopters category [Part like the 27] regulations lack of cific bird strike related case,” 407 at issue this the fact that the [aircraft issue] demonstrates the Aviation “imposed Federal Administration pervasive regulatory absence of a scheme type of heli bird-strike standard on one room law and leaves for state claims on the copter speaks another volumes.” at 834. F.Supp.2d issue.” Bell, According to direct conflict “short of actual there regulation, with an is no bet Because there are no federal statutes or ter evidence of ‘conflict’preemption.” Ap regulations the minimum stan- governing respond “failure to pellants adopt that the for bird-strike resistance in Part 27 dards requirement applicable a bird-strike to the helicopters like the Bell we cannot Bell 407 cannot create a for [Part 27] basis common-law design conclude that Texas’s preemption.” conflict impossible cause of action makes it defect with both comply Bell cites cases from the United States state and Court, Circuit, or that Supreme requirements the Fifth and the federal the cause of Supreme propositions: purposes two is an Texas Court for action obstacle (West Carter, 2005); Corning v. see Sprietsma v. Owens Congress.

objectives (Tex.1999). “Thus, Marine, 51, 65-68, 537 U.S. Mercury (2002) plaintiff whose of action for 518, 527-29, foreign cause 154 L.Ed.2d 466 S.Ct. wrongful death arose in personal injury or preemption no conflict (holding there was limitations foreign state with shorter had decided where the Coast Guard even must file within the period than Texas’s propel- adopt regulation requiring not by limitations boats). prescribed period hold that guards ler on motor We Corning, law.” state’s Owens defect common-law Appellants’ at 571-72. Bell 407 to the Part 27 relating claims reg- not conflict with federal helicopter do dispute do not parties concerning helicopter windshield ulations Panamanian Code article 1706 of the Civil resistance. We bird-strike of limi forth the Panamanian statute sets the of first issue. overrule remainder Bell’s actions, governing negligence nor tations dispute language they seriously the of do IV. Panamanian Statute According to Bell’s “Notice article 1706.4 of Limitations Law,” article 1706 Regarding Panama that be Bell contends its sixth issue states: 27, January cause the accident occurred on damages seeking The civil action for 2000, law did file this Appellants liability or derived slander or libel civil 25, 2002, January Appel until all of suit negligence under article from fault or one-year by lants’ are barred the claims Code, prescribes [that the Civil neg for Panamanian statute of limitations period year be of one within] suit filed ligence actions. Because Bell’s sixth issue running the the claimant from time the Panama requires interpretation of learned loss. of the limitations, apply nian statute of we de action for If criminal or administrative review. Lal v. Har novo standard of para- the the above facts described Worth, 468, ris Methodist Fort filed, graph timely prescription the pet.). Worth (Tex.App.-Fort civil run from the action starts to the criminal or administra- sentencing of practice civil Under remedies action, may tive as the case be.5 71.031, foreign plaintiffs code section must Appellants both did commence their suits within time contends file one of the acci- year Texas law and “within the suit within provided dent, foreign Appellants’ claims by the of the are barred provided time laws However, act, Appel- ... ne of limitations. wrongful state in which the statute criminal in- place.” presented or took Tex. Civ. lants evidence of a glect, default (3) 71.031(a)(2), began January § vestigation Prac. & Rem. Ann. on Code Code, prescribes Appellants Bell and each a translated the Civil within term 4. filed copy Although (1) the transla- year, of article 1706. date of one counted from the it slightly, tions differ the differences are not knowledge par- came to the offended analysis. material our ty- If a or action is criminal administrative Appellants' translation article 1706 for foreseen in opportunely started the facts states: paragraph, prescription the above The civil claim for action to indemnification civil be counted from exe- action shall calumny or to civil or slander demand lia- judgment cution criminal ad- of the guilt bility obligations from derived may regulation, case ministrative as the be. negligence referred in Article accident, day argue and that Appellants Su- Texas May after preme yet ended in several months “has not Court ruled wheth- Thus, filed this lawsuit. under Appellants er an equitably adopted child standing has plain language Appel- of article claim bring a under” Wrongful this lants filed lawsuit within the statute of Act, they Death ask us to revisit our limitations as set forth in the Panamanian holding Robinson. See id. at 310-11. We overrule issue. Civil Code. Bell’s sixth disagree Appellants’ We contention court supreme yet has not ad- Wrongful V. Death and issue, dressed this we decline to ac- Survival Claims cept Appellants’ invitation prece- to revisit Equitably Adopted A. Children dent. issue, sixth Appellants

In their contend Goss, trial by that the court erred a granting by decided the Amarillo summary partial judgment 1956, that Carla in Appeals Court of re is a “writ Gasperi, Gasperi’s Guillermo Gloria fused” case. See 287 S.W.2d at 290. children, alleged equitably-adopted “Writ cases refused” decided after 1927 standing bring wrongful lacked to a precedential have “‘equal value the Appellants death claim. do not contend Supreme Texas Court’s opinions.’” own legally that adopted Gloria Carla Hyundai Motor Co. v. 189 Vasquez, Guillermo.6 743, (Tex.2006) 754 n. 52 S.W.3d (quoting The Greenbook: Texas Rules of Form

“An action damages to recover (Tex. Ass’n, 2005)); Law Review 10th ed. wrongful death is for [under statute] Yancy see v. Surgical also United Part surviving the exclusive benefit of the Inc., Int’l, 778, 236 ners S.W.3d n. 6 786 children, spouse, parents the de (Tex.2007) (recognizing “writ case refused” Tex. Civ. Prac. ceased.” & Rem.Code weight of our 71.004(a) precedent”). “has the own (West 2005). §Ann. In Goss v. Thus, Goss, refusing the writ in Franz, the Amarillo court held appeals supreme essentially court addressed alleged that equitably-adopted an child very Appellants present ap issue in this to death bring wrongful was not entitled Therefore, (Tex.Civ. peal. Goss’s 289, holding that 287 action. See S.W.2d 290 ref'd). equitably-adopted may bring child 1956, App.-Amarillo writ And in Chiarello, wrongful claim is binding precedent death v. held that Robinson this court court appellate we as an intermediate appellants, who were “neither the nat are to obligated nor follow. See parents legal adoptive ural Lubbock parents” deceased, v. Cnty., Tex. Trammel’s Bail were barred as a matter of Lubbock (“It (Tex.2002) Bonds, 580, recovery wrongful law from under 585 304, death 310-11 is not of a to appeals statute. S.W.2d the function court of denied). 1991, modify Worth (Tex.App.-Fort abrogate prece- writ established summary judgment resolving de 6. We review novo. sonable inference doubts Advisors, Id.; 20801, Lipp& Mann Stein Inc. v. the nonmovant’s favor. Inc. v. Frankfort Parker, (Tex.2009). (Tex.2008). Fielding, 289 S.W.3d A presented conclusively negates We consider defendant who least nonmovant, light favorable most credit- one essential element of a cause action is ing summary judgment if evidence favorable to the nonmovant entitled on claim. to could, Tex., DeSoto, jurors disregarding reasonable evi- IHS Ctr. Inc. Cedars Treatment Mason, (Tex.2004); contrary to the rea- dence nonmovant unless not, 166a(b), (c). every jurors indulging could rea- P. sonable see Tex.R. Civ. 8, 2007, dent”). Appellants filed a motion August binding precedent Because holds reconsideration, an ap- filed contrary to contention Carla Appellants’ per- have been County and Guillermo should Probate Court plication Carla in Tarrant death as bring wrongful claims mitted be as the administrator of appointed children, we equitably-adopted 10, 2007, Gloria’s August And estate. on Gloria’s Appellants’ issue. overrule sixth Appellants petition filed an amended alleged was a of Glo- representative Carla on Behalf of Glo- B. Survival Claims Angela and that Lassen ria’s estate added Estate ria’s repre- plaintiff legal personal as issue, its third Bell contends that August On sentative of Gloria’s estate. Gloria’s estate lacked representatives of Appellants’ court granted the trial claim be- bring a survival capacity motion reconsider the dismissal half of the estate and survival 24, 2007, September survival claim. On of limita- claim is barred the statute jury’s week verdict but before after failed Appellants respond tions. signed judgment the trial court this challenge by preserve capacity case, County Tarrant Probate Court charge and that the objecting appointed as administratrix of Glo- Carla time-barred claim not because survival ria’s estate. post-limitations appointment as ad- Carla’s Challenge Capacity 2. to Not Pre- ministratrix of Gloria’s estate related back served original peti- Appellants’ pre-limitations to tion. II, Dodge Citing Chrysler Bossier Applicable

1. Facts Rauschenberg, argue Appellants Inc. v. preserve challenge to Bell did its January lawsuit on Appellants filed this representative of an capacity estate 25, 2002, alleged original Carla on object capacity because Bell did legal representative that she a petition was jury questions con grounds charge to a Bell filed motion for of Gloria’s estate.7 estate.8 cerning Gloria’s See S.W.3d 2006, summary judgment in April contend- (Tex.App.-Waco pet. 798-99 brought claim on ing that survival part grounds, granted), rev’d on other should dis- behalf Gloria’s estate be (Tex.2007). Bell does not S.W.3d 376 did not have stand- missed Carla dispute object it failed to the to initially it. The trial court ing to assert charge capacity grounds but on contends the issue under advisement but took question law that it summary capacity granted judgment the motion for judgment for preserved through motion “re-urging” after Bell filed a motion sum- (JNOV).9 judgment notwithstanding claim. On verdict mary on the survival Damian, Captain Garay, alleged original peti- in the tain or Gloria caused 7. Guillermo also money injuries legal representative and the sum of tion that he was a Gloria’s estate, compen- fairly reasonably Appel- but neither nor "would Gloria’s Gasperi” pain and capacity repre- sated Gloria for mental lants address Guillermo’s Thus, anguish. jury charge The does not contain a Gloria’s estate. we do not address sent definition, concerning legal representative question, instruction whether Guillermo was any person capacity represent Glo- Gloria's estate or the timeliness of behalf ria’s estate. claim Guillermo asserted on of Gloria’s estate. damages question object to 9.Bell did charge jury assuming capacity but jury stated asked the determine Bell, any, Cap- "is the Statute of negligence, if survival claim barred whether the Thus, we must determine whether Osterberg, Bell’s the court in Bossier Chrysler challenge capacity should have been Dodge explained a defendant’s obligations through objection jury raised an to the preserve error when challenging the charge or if it timely could be asserted for plaintiffs capacity: in post-verdict first time motion such filed, a verified [I]f denial is the issue of as a motion for JNOV. plaintiffs capacity to sue is contro- verted, preserve plaintiff

To a no and the evidence or bears the bur- matter of law point appeal, party proving den of at trial that he is entitled must complaint through raise the a motion to recover in the capacity in which he verdict, JNOV, for directed a motion for has filed suit. As party with the objection to the ques submission of the then, burden of proof it is incumbent jury, tion to the disregard motion to upon plaintiff to obtain a jury find- jury’s answer to a vital question, fact or a ing particular on this issue. motion for new trial. See United Parcel If, however, the trial court submits a Serv., Tasdemiroglu, Inc. v. question assuming capacity original- 916 (Tex.App.-Houston [14th Dist.] ly pleaded ... and the defendant does denied) Smith, pet. (citing Cecil not object question, then the de- (Tex.1991)). 510-11 many But fendant is charge bound ap-

legal rulings require timely objections be peal. Conversely, if the defendant does fore submission to the preserve object, then the defendant will either appeal. error for id. at (listing 916-17 obtain sought-after jury finding or examples). And unlike standing, a chal have an ruling adverse which can be lenge party’s capacity to a can be waived if appeal. reviewed on properly challenged in the trial court. 201 S.W.3d at (citing 798 Osterberg, 12 See, Ctr., e.g., Austin Nursing Inc. v. Lo Miller, S.W.3d at 55 and v. O’Connor 127 vato, (Tex.2005) (“[A] 171 S.W.3d 849 S.W.3d (Tex.App.-Waco 2003, 254 pet. challenge to a party’s capacity must be denied)). The Bossier Chrysler Dodge by raised pleading verified in the trial court held that although the defendant court.”). properly controverted the plaintiffs capac- Peca, In Osterberg v. supreme the court ity denial, through a verified the defendant stated that “if the trial court has ‘to re- preserve did not capacity argument its be- solve a legal issue before jury the could cause it object jury did not to the charge. properly role, perform its fact-finding ... at 798-99. though Id. And even the defen- a party must lodge objection an in time for challenged dant plaintiffs capacity the in a the trial court to make an appropriate trial, motion for new the court held that ruling having without to order a new tri- ” challenge the to the plaintiffs capacity (Tex.2000) al.’ 55 (quoting through the motion for new trial “was not Stores, Inc., Holland v. Wal-Mart made in a timely Id. at fashion.” (Tex.1999), S.W.3d and holding par- Here, ties to preserve argument jury charge failed the they questions that included substantially complied with capacity election code that assumed the represen- of the estate, section 254.124 they object did not tative of Gloria’s Bell did not jury to the charge). Relying in part object on the any questions, to absence of Limitations, filing by Angela Angela's based on the late capacity represent Gloria’s es- representative Lassen as the of the estate of tate. Gasperi.” object Gloria Bell did not to Carla the survival claim af- capacity maintain

definitions, on the issue of instructions limita- expiration of Bell to the ter the statute objected capacity.10 Had tions, trial court cures grounds, capacity charge capacity “post-limitations on question, to submit a might pre-limitations have chosen lack thereof.” her definition, jury to the con- or instruction The court stated 852-53. permitting cerning thus capacity, involving post-limita- “[generally, cases the con- fact-finding its role on perform representative capacity involve tions Osterberg, capacity. See troverted issue of alleging capacity pleading amended ” Inc., 55; Trailways, 12 S.W.3d at Clark said Lovato’s for the time but first (Tex.1989) (“By failing unusual, however, be- “case is somewhat deny effectively ... object parties ... alleged representative cause Lovato has opportunity to review and trial court every of the status behalf estate object- finding.”). By prior correct trial Id. at with the court.” petition filed of an ing, deprived trial court not- (emphasis original). The court alleged to correct error opportunity rep- original ed that Lovato’s assertion Thus, we hold that relating capacity. status, “though un- apparently resentative review preserve appellate Bell failed to true, bringing asserted that Lovato was capacity repre- challenge repre- in her as the estate’s capacity suit overrule sentatives of Gloria’s estate. We trial Deferring to the sentative.” Id. part this Bell’s third issue. inqui- court on issue of reasonable 3. Survival Claim Not Barred filing petition, ry original made before Limitations Statute of court estate com- “[t]he stated expired” menced the before limitations suit issue, its third In the remainder of her cured the “Lovato defect that the survival claim as contends capacity before the case was dismissed.” on behalf of Gloria’s estate is serted Therefore, post-limitations Id. at 853. Spe limitations. barred the statute capacity pre-limi- acquisition of cured cifically, ap Bell contends Carla’s lack capacity, tations and the statute pointment representative estate did not claim. limitations did not bar survival original petition relate and that back Id. Angela join not the lawsuit until seven did accident, years meaning after the all argues distinguish- Lovato estate claims on behalf Gloria’s are heir actually Lovato was an able because Appellants respond that the time-barred. filing the the time the estate at claims on behalf of Gloria’s estate are petition. The su- original disagree. We ap timely post-limitations because Carla’s Lova- noted that preme specifically court pointment administratrix of Gloria’s as es es- to’s status an heir of her mother’s as pre-limitations tate back to related 848, in at And dispute. tate was Id. 851. petition. original day supreme the same court decided Lovato, v. Lovato, it in Lorentz Dunn that held held supreme court claim was not time-barred because plaintiffs timely-filed peti- a survival original when plaintiff, was not an heir and did representative status to the who alleges tion her acquires represent a claim have to the estate bring capacity survival and she definitions, fact, although proposed proposed questions, or instruc- 10. In Bell submitted definitions, questions, concerning capacity representa- and instructions tions of a court, proposed questions, trial Bell's defini- tive of Gloria’s estate. tions, any did not include instructions

143 filing capacity the original petition, at the time of correct should suffice for limita- capacity lack of pre-limitations cured her purposes, provided capacity, tions if appointment her through post-limitations challenged, is a established within reason- as administrator estate.11 Lovato, able time.” 171 S.W.3d at 853. (Tex.2005) 854, (relying Lo S.W.3d states, And the footnote to that sentence 850). vato, Thus, at do not we “The is on the burden defendant to chal- alleged lack as agree that Carla’s of status lenge capacity via verified plea, distinguishes an heir of Gloria’s estate Lo- trial court should give abate the case and Lorentz, vato from the case. See present a plaintiff reasonable time cure 856; Lovato, 171 S.W.3d at 171 S.W.3d at added). Id. 853 n. 7 (emphasis defect.” Thus, supreme court’s reference to “a disagree We also Bell’s assertion time” proper pro- reasonable relates to the distinguishable that Lovato is because Car- following cedure timely plea abate- la due diligence waiting “did not show plaintiffs ment and does not state years attempt five to gain capacity” ability cure pre-limitations lack of while “applied Lovato become adminis- capacity contingent upon seeking capaci- filing just trator two months after ty within reasonable of filing time survival within claim and the statute original petition.12 See id. at 853 & n. 7. limitations, so the court held that her Indeed, Lovato was not appointed adminis- change applied of status was for and com- eighteen trator until expi- months after the pleted within a reasonable time.” [Em- ration of the statute of limitations. Id. at phasis holding There is no added.] 847, distinguish 852. Bell’s attempt to Lo- as appointment Lovato that Lovato’s ad- unpersuasive. vato is “completed ministrator was within rea- Bell also relies on v. Covington Sisters Instead, supreme sonable time.” court held, Charity the Incarnate Word. See stated, “If, a plaintiffs as we 179 S.W.3d 583 pleading alleging (Tex.App.-Amarillo amended representative denied). There, capacity require- pet. the relation-back decedent’s satisfies ments, petition original alleges daughter, Covington, appoint- an Patricia was Textiles, Inc., (Tex. appeals 11. Lorentz conceded in the court of Plains S.W.2d n.r.e.). an heir she was not of the estate. Civ.App.-Amarillo ref'd writ Dunn, (Tex. Thus, Lorentz extent Bell contends that the rev’d, App.-Fort pet. granted), Worth survival claim is barred the statute of limi (Tex.2005) (“Appellant 171 S.W.3d 845 fur representative tations because an estate qualify ther concedes that she did not appointed administrator within reason estate.”). heir to the time, portion able we overrule that of Bell’s preserve third issue because Bell did not the although regard, 12. In we note Bell this that argument appellate for See review. Tex.R. obligation finding jury had the to secure a on ("Failure question a Civ. P. 278 to submit defense, a limitations did not submit ground shall be deemed a for reversal of not proposed jury question inquiring whether a submission, judgment, the unless its sub sought ap- representative Gloria’s of estate requested stantially wording, correct been has pointment within reason- as administrator writing by party and tendered the com Mercer, able time. See Woods v. William M. judgment.”); Tex.R.App. plaining of the P. Inc., ("The (Tex.1988) 33.1(a). pre not been Because the issue has statute is an de- of limitations affirmative served, express opinion we as to whether fense[, and defendant the ini- thus bears t]he representative acquire capacity an estate must plead, prove, tial find- burden to and secure limitations.”) represent the estate within a reasonable ings (citing to plea to sustain its of Corp. Tex.R. Civ. P. 94 and Metal time. Structures filed law- Covington, the estate. Id. at 584. Unlike Carla this ed of administrator Later, period, alleged limita- suit within the limitations within the statute of and sister, representative she of Gloria’s tions, Rob- was Elizabeth the decedent’s estate, subsequently acquired capacity erts, Id. and malpractice claim. filed a medical survival claims on behalf of prosecute to challenged Roberts’s After the defendants Thus, post-limi- Gloria’s Carla’s estate.13 capacity to act behalf of standing and of acquisition capacity tations cured her estate, filed an her Roberts sister’s pre-limitations of alleged capacity, lack Covington as petition that added amended the claim and survival on behalf Gloria’s plaintiff, Covington was alleging by limi- estate is not barred the statute of of the estate. Id. at 585. administrator Lorentz, 856; tations. See 171 S.W.3d at summary judg- court’s Affirming the trial Lovato, 171 S.W.3d at 852-53.14 And be- defendants, ment in favor Cov- post-limitations capacity cause Carla’s because ington distinguished court Lovato alleged pre-limitations lack of cured her personal repre- not an heir or Roberts was capacity, we need decide whether pleaded and sentative of estate never Angela’s plaintiff intervention as a in Au- per- was an heir or or contended she gust original 2007 related back to Carla’s sonal of the estate. Id. at representative pre-limita- or whether Carla had petition court further 587. The noted capacity tions to claim bring survival directly statute ad- relation-back “does not alleged equitably-adopted as Gloria’s filing subsequent pleading dress the “[ojrdi- P. 47.1 daughter. Tex.R.App. (requir- See plaintiff’ and that adds a new ing appellate court to “every address issue narily, adding a new pleading an amended necessary disposition raised final and party original not relate back does appeal”). 588; We overrule remainder Id. at Prac. pleading.” see Tex. Civ. 2005). (West Bell’s third issue. § & Ann. 16.068 Rem.Code Covington held court that because Design VI. Defects estate, was the administrator of Rob- second, fourth, capacity bring erts not have the Bell contends in its did estate, that, claim on Appellants’ survival behalf fifth issues ex necessary lacked post-limitations petition pert qualifica that added witnesses unreliable, party as a time did Covington first tions their pre-limitations conclusory, back to there speculative, relate Roberts’s is no evi petition. Covington, at 587- the jury’s dence defect findings.15 Specifically, argues 88. Lorentz, above, preserve supreme discussed Bell failed to And court reversed As capaci- of whether Carla in had issue fact opinion this court's that relied on McAdams ty failing represent estate Gloria’s Lorentz, authority. 171 S.W.3d at 854- object question assuming charge 56; Lorentz, 112 S.W.3d at 179. Because we capacity. distinguish are unable to McAdams from Lor Lovato, we believe McAdams was entz opinion 14. Bell also cites this court’s in Mc implicitly Lovato. overruled Lorentz Capitol Corp., v. Products 810 S.W.2d Adams Lorentz, 56, Compare 171 at and S.W.3d 854 — 1991, denied) (Tex.App.-Fort 290 writ Worth Lovato, 846-47, 171 S.W.3d at 852-53 (op. reh’g) proposition that the on for the McAdams, 291, 810 S.W.2d at survival claims are time-barred because Car acquisition capacity did la’s not relate back single, 15.The court submitted a broad- trial pre-limitations capacity. lack of Mc- her design question form defect with- was and Lovato Adams decided before Lorentz contrary differentiating design and reached a result. id. at 293. out between in defects

145 Testimony Expert no evidence that B. there is and Standard or door mounts were defective Review windshield

ly designed, there is no evidence an expert’s If testimony would designs were feasible for safer alternative assist the factfinder understanding mounts, or door and determining issue, evidence or a fact “no evidence that [Appellants’] there is scientific, technical, expert may testify on system alternative restraint was proposed subjects. or other specialized Tex.R. Evid. use on civilian and helicopters available for 702; Trucks, Tamez, Mack Inc. v. 206 that it would have prevented no evidence (Tex.2006). 572, S.W.3d 578 Rule Under Gasperi’s injuries.” Gloria 702, the of the proponent expert’s testimo

ny has the burden establish Applicable A. Law expert qualified opinion render an on 702; subject matter. Tex.R. Evid. E.I. products liability To recover on their Robinson, duPont de Nemours & v.Co. defect, alleging Appellants claim (Tex.1995). 549, 923 S.W.2d 556 Whether required prove by preponder were qualified judicial witness is is matter of “(1) product ance of the evidence that discretion, the trial and court’s determina defectively designed was so to render it tion on will that issue not be disturbed on (2) unreasonably dangerous; a safer alter appeal a clear absent abuse of that discre (3) existed; native and the defect Robinson, 558; tion. 923 S.W.2d at see producing injury was a cause of the Heise, 148, 924 Broders v. 151 S.W.2d plaintiff recovery.” which the seeks (Tex.1996). trialA 'court does abuse Indus., Gish, Timpte Inc. v. 286 S.W.3d merely reviewing its discretion because a (Tex.2009); 306, 311 v. To see Hernandez court in the same circumstances would (Tex.1999); 2 Corp., kai S.W.3d 255-56 Robinson, differently. 923 ruled 529; Burry, 203 S.W.3d at see also Tex. 558; Downer Aquamarine S.W.2d v. 82.005(a) & § Civ. Prac. Rem.Code Ann. Inc., (Tex.1985), Operators, S.W.2d 2011). (West A design” “safer alternative denied, 1159, 106 rt. 476 U.S. S.Ct. ce is: (1986). L.Ed.2d 721 trial product design other than the one court its discretion if abuses its decision actually proba- used that reasonable or ref arbitrary was unreasonable without bility: erence rules guiding principles. (1) prevented significant- would have Downer, at 241-42. ly the risk of the reduced claimant’s part material ex of an “[E]ach personal injury, property damage, or pert’s theory Whirlpool must be reliable.” substantially impairing death without Camacho, Corp. v. utility; the product’s (Tex.2009). in expert testimony When (2) economically technologically volved, are to “rigorously courts examine” at the left the product feasible time the validity assump both of the facts and control manufacturer or seller tions which is based reasonably application existing or “the which the principles manner scientific knowledge. achievable applied by are methodologies expert (citing Tex. Prac. & Ann. reach the Id. Exxon Civ. Rem.Code conclusions.” 82.005(b). Zwahr, § Pipeline Co. windshield, mounts, helicopter’s system. door restraint

146 so, Helicopter (Tex.2002)). the C. Windshield doing we consider and the factors set expert’s experience part of its second issue argues Bell court by supreme the Robinson. forth a safer alterna- is no evidence of there v. Jack (citing at 638 Gammill Id. tive 713, Inc., Chevrolet, 972 S.W.2d Williams opinion testimony Appel- because the Robinson, (Tex.1998)); see 923 S.W.2d 720 Hinds, Billy was insufficient expert, lants’ few cases will the very 557.16 “[I]n at Bell law. ar- Specifically, as matter of reli- such that the trial court’s evidence be necessary qual- gues that Hinds lacked properly can be ability determination testify alternative ifications to about safer of only experience qualified on based designs experience he de- has of such as to the exclusion factors expert only lim- helicopter structures signing Whirlpool, out in those set Robinson.” on much experience ited windshields Trucks, (citing at Mack 298 638 S.W.3d is testimony larger helicopters, that his Gammill, 972 at 579 and engineering principles, on sound based 726). at S.W.2d specu- testimony conclusory his lative. ruling a trial court’s Although expert’s opinion reliability of an

on Error Preservation of generally for an testimony is reviewed discretion, may Appellants argue Bell party of assert

abuse reliability case, challenge of Bell in this that the waived its appeal, as does testimony. preserve com unreliability opinion makes Hinds’s “To expert’s an plaint expert’s testimony ver an is unrelia legally it insufficient ble, reviewf,] object testimony we must to the party Id. a no-evidence “[I]n dict. it the evi before trial or when is offered.” Guada independently consider whether Kraft, River 77 lupe-Bianco reasonable and Auth. dence at trial would enable (Tex.2002); 807 see Mar. jurors to reach the verdict.” S.W.3d fair-minded Wilson, Ellis, Corp. v. (citing City Id. Keller v. 168 Overseas (Tex.2005)). (Tex.1998). pretrial 827 review 409 filed a mo S.W.3d This record, testimony that including tion “encompasses the entire to strike Hinds’s motion, pretrial ex trial denied. In the contrary tending show the court factors and the or unreliable.” invoked the Robinson pert opinion incompetent Id.; analytical standard ar gap also Tire & Rubber Co. v. Gammill Cooper see (Tex.2006) Mendez, gued testimony inherently Hinds’s “is S.W.3d (“[W]e mere may testimony speculation.” of unreliable and Bell’s consider pretrial to strike Hinds’s opposing appel because ‘an motion experts the[ ] challenge reliability conducting preserved a no-evidence review late court testimony. Kraft, S.W.3d expert’s opin cannot consider bare Hinds’s Ellis, 409; ion, 807; at see contrary evi at also but must also consider S.W.2d ”) Land & City Sugar v. Home Hearth showing dence it has no scientific basis.’ 813). LP., Keller, Sugarland, n. 4 City 168 S.W.3d at (quoting error, (5) (1) nique’s potential rate whether the are the extent to 16. The Robinson factors tested, theory gen- underlying technique has been theory or can which the has been be (2) erally accepted relevant scien- technique extent relies valid to which (6) community, non-judicial subjective interpretation uses upon the of the ex- tific (3) theory theory subject- or tech- pert, whether has been which have been made of (4) peer publication, nique. tech- 923 S.W.2d 557. ed to review or denied) “Mating” pet. b. (Tex.App.-Eastland Windshield pre- Helicopter to the (holding pretrial motion to exclude concerning reli- appellate complaint served that the mounting Hinds testified struc- Further, expert testimony). Bell ability ture of the Bell 407 would need to be qualifications at trial to Hinds’s objected in order to modified mate a stretched about the structure of the 407. testify acrylic polycarbonate windshield to to the extent Bell contends that Finally, helicopter and make it bird resistant. speculative conclu- Hinds’s Concerning the modifications for necessary face, sory objection its no trial windshield, acrylic a 0.14 inch stretched Co., v. required. Transp. See Coastal “[sjtretched acrylic Hinds testified Cent. Petrol. Corp., Crown has the same basically structure character- (Tex.2004). hold that We therefore acrylic, istics as the as-cast and there to Hinds’s preserved challenges probably wouldn’t had to much be and the of his tes- qualifications reliability change to the structure at all timony. windshield, polycarbonate that.” a For Hinds averred because of the deflec- Testimony

2. Hinds’s tion in the fol- polycarbonate windshield bird-strike, bird-impact Hinds is an in expert lowing portion He transparency design helicopter for aircraft. has frame that overlaps the wind- experience have to designing transpar shield would be extended approxi- extensive mately keep 1.5 inches to airplanes, expe for but he the windshield encies has with retained in the structure. But ac- light helicopters rience and limited Hinds he generally. knowledged did not know if the experience helicopters helicopter would Specifically, poly- Hinds has not been trained structure performed has not on the carbonate windshield the event of work a bird strike. testified that helicopters, structural has never He the 1.5 inch change mating “ap- to the structure how the of a is an designed structural frame (or aircraft) proximation,” that it is his any sugges- “initial helicopter other would tion,” frame, designing that he “wasn’t accept windshield or has window Helicopter,” for Bell and that ac- designed transparencies large two “without (the RAH-66), tually testing it and seeing S-92 bird how helicopters edges testing, the actual light perform and has not done work with bird really you don’t know for sure if the similar helicopters to the Bell 407. right.” a. Materials Sufficiency Legal Opin- of Hinds’s Testimony ion acrylic testified that the as-cast Hinds 407 was Hinds’s de- used for windshield the Bell Crucial to safer alternative unreasonably defectively dangerous sign opinions suggestion is his that either acrylic 0.1 designed bird-impact because it was not the 0.14 inch stretched or the He be polycarbonate resistant. also testified that stretched inch windshield could acrylic polycarbonate are safer materi- to the Bell successfully mated 407—and that the in 1997 in the of a technology als and existed retained to the event (or attach) 1.5 adding approximately mate a 0.14 inch bird properly strike — acrylic bonding area polycarbonate stretched or 0.1 inch inches to the around Appellants’ Two of helicop- structure of the window frame. other Raffo, Anthony Bosik and impact experts, ter in order resist an with bird. John 148 engineer- any publications, design is not duct or cite that an alternative

agreed studies, rigidi- the the helicopter ing analyses it detaches from or other if safer impact, agreed and Hinds following ty or of a 0.14 inch deflection rates what material used not matter is it does 0.1 acrylic polycarbonate or inch stretched prevent if it not windshield does for the compared rigidity the or windshield as pilot. incapacitating the In oth- from bird in acrylic rates of the deflection as-cast words, acrylic neither stretched nor er opinion. his 407 is safer design than polycarbonate acrylic they dislodge if from design as-cast be “Expert opinions sup must on with a helicopter impact bird. See evidence, conjec in by facts ported & Rem.Code Ann. Tex. Civ. Prac. Pitzner, ture.” v. 106 Corp. Marathon 82.005(b)(1) (providing that alternative § (Tex.2003) (citing 729 Bur S.W.3d signifi- or design “prevented must have roughs Crye, Co. v. Wellcome the injury). reduced the risk” of cantly (Tex.1995)). expert’s Am sim 499-500 in the event of a bird agreed Hinds ipse ple dixit is insufficient to establish a strike, in there must be sufficient retention rather, matter; explain the expert must area where the windshield is bonded to link the basis of his statements to his bonding frame so that the area is not City to the facts. See San conclusions of the wind- overloaded the deflection Pollock, v. S.W.3d 818 Antonio 284 impact. Hinds caused But shield (Tex.2009) Arce, (quoting Burrow v. 997 why proposed explained never his addition (Tex.1999)); Earle Rat S.W.2d mating inches to the approximately 1.5 (Tex.1999). liff, S.W.2d “[I]f would be sufficient retain structure offered, opinion no basis for is acrylic poly- inch or 0.1 inch 0.14 stretched support, provides basis offered no on the helicopter carbonate windshield opinion merely conclusory statement the event of bird strike. probative and cannot be evi considered Concerning the frame alterations neces- Pollock, 818; at dence.” cf. a 0.14 inch sary to accommodate stretched Burry, (holding 534-35 windshield, Hinds acrylic testified expert sufficiently explained pro how the probably wouldn’t have had to be “there would posed design alternative safer func structure,” change to the but he much tion). explained opinion. the basis of his never Hinds as an Assuming qualified ex- “[sjtretched saying acrylic than Other pert testify regarding an alternative basically the same structure character- has design helicopter safer windshield absent acrylic,” istics as as-cast Hinds did experience training what, any, if are say changes structural design, testimony concerning the his nec- needed, necessary, changes and if are no essary changes to mate a 0.14 inch explain why none are he did not needed. acrylic polycarbonate or 0.1 inch stretched windshield, inch polycarbonate a 0.1 For windshield to the Bell 407 and resist bird overlap testified that for the Hinds conclusory, impact speculative, to be bonding area would need extended acrylic a 0.14 evidence that inch stretched by approximately 1.5 inches because of the polycarbonate or 0.1 inch ais rate of he polycarbonate, deflection but safer alternative than the as-cast his again explain failed basis of acrylic windshield on the Bell 407.17 example, For Hinds did not con- opinion. acknowledged training Hinds that he had twelve weeks structural Tex. Civ. Prac. & Ann. impact Rem.Code will transfer to the structure of 82.005(b); Pollock, 818; § the helicopter. S.W.3d at Earle, 998 S.W.2d at 890. addition, expert Wandel, Warren an accident investigator formerly with the

The eonclusory speculative and nature of Transportation Board, National Safety tes- testimony Hinds’s is illustrated the tes- tified that of all civilian helicopters in the timony experts of other in the case and world, ninety-five percent are Part 27 heli- parts other testimony. of Hinds’s (or copters the foreign equivalent) similar (consider- Whirlpool, 298 S.W.3d at 640-42 407; to the Bell that Part 27 helicopters ing rebutting expert’s opinion as popular are and fit a certain niche because “highlights evidence that the extent size, of their speed, weight, operating which expert’s] theory subject [the costs, and number of passengers; and that testing and examining for reliability”); they are extensively used by law enforce- Tire, (consid- Cooper 204 S.W.3d at 803-04 ment, pipeline power patrol, line off- ering testimony of opposing experts when shore support petroleum of the industry, reviewing scientific for expert’s basis testi- and television and radio stations.18 Bell (consid- mony); Kraft, 77 806-07 engineer structural Steven Webster testi- ering expert’s testimony during voir dire fied that neither the materials nor the in analyzing reliability of the expert’s opin- structure light helicopters like the Bell ion). All engineering experts who testi- designed are bird-impact resis- fied, Hinds, even agreed that designing the tance, polycarbonate synonymous is not entire helicopter structure to withstand resistance, with bird-impact many ef- the load of an impact is a critical factor in forts to use it years over the have been designing a bird-resistant windshield. unsuccessful. Webster further testified Hinds acknowledged that whether his that the helicopter structure would have to proposed monolithic, 0.1 inch polycarbo- changed be to withstand an impact of the nate windshield would work require would magnitude that here. Finally, occurred looking at how the whole frame fits with Bell engineer structural Alan Allman ex- the supporting structure. Appellants’ ex- plained pound that a 3.5 striking bird pert Bosik testified that designing the en- helicopter generates at 120 knots helicopter tire structure to withstand the foot-pounds of force and reiterated that a impact load of an ais critical issue and polycarbonate windshield is not the same proving whether or not a bird will as a bird-resistant windshield. He ex- penetrate the material only one of sever- plained that windshield is one steps al in proving the existence of a safer part system agreed that even design. alternative Appellants’ expert Raf- assuming the windshield material would fo, manager of a windshield manufacturer resist the impact, “major engineering types for all (including of aircraft helicop- portion” in designing a bird-resistant heli- ters for past), Bell in the agreed that a copter building the entire structure of safer alternative design of a windshield helicopter around the bird-resistant require would complete structural transparency so that it will “withstand the that would consider the structure of the load” impact. created Designing helicopter because the force that is not the helicopter to resist the 2230 foot- taken inup the deflection of the windshield pounds of force require would additional 1,000 training experience

of aircraft and no 18. Other evidence estimated there are design. structural Bell 407's in use in the United States. 1.5 inches by adding approximately in the strike to the structure to be added weight area. bonding rear, the additional and the front larger engine weight require will in Hinds’s Other deficiencies “by the time horse-power, more conclusory spec- further illustrate structure!,] you now you build that entire opinions. Hinds testi- nature of his ulative helicopter.”19 [Bell] the structures fied on voir dire similar, airplanes very are helicopters and Nevertheless, did not evaluate the Hinds princi- the fundamental stating that for an alternate impact proposal of his basically the ples any aircraft are for 407 n struc- rest of the design the same; landing and they must “take that Although agreed Hinds that design. tural loads”; air that must “take they takeoff consider how the design windshield must loads”; you “calculate pressure must fit heli- and its frame with the windshield materials, joint the the strength of structure, admitted he copter’s supporting react”; they and how interfaces^] Indeed, in this case. that he did not do so these loads “you worry have to about how any he does he admitted that pressure”; are take going to he helicopter design, and experience with engineering principles.” these “basic are looked testified that he at available America, Inc. v. Ra- Volkswagen of of makeup the wind- technology for the mirez, his challenged testified expert that he not an- and admitted could shield involved opinions accident reconstruction the Bell questions swer structural about engi- “basic application of scientific agreed during Hinds his voir also by the principles, abiding but all neering presence examination outside dire had not physics,” expert laws but the impact a bird will transfer read or seen that cor- publications studies from structure loads the windshield or opinion, not conduct roborated his did but he admitted that he helicopter, theory, and any support cite tests to his not calculate the loads transferred did he did con- explain did how tests know the loads the frame and did not what his supported duct conclusions. frame. failure to would do Hinds’s (Tex.2004). Holding 905-06 S.W.3d of the Bell 407 or to analyze structure expert’s opinion was unreliable transferred to the even calculate the load evidence, court supreme and thus no signif- strike following structure a bird is a expert’s “reliance on stated that analysis, see gap generally icant in his more, ‘laws without is an insuf- physics,’ Gammill, Here, and it illumi- S.W.2d Id. at 906. explanation.” ficient conclusory speculative na- nates the opinions testified that his although Hinds that a engineering principles, ture of his stretched are based on basic or windshield could he how or acrylic polycarbonate explained principles never those his any publications supported or Bell 407 a bird tests be retained to the after designing 430.” See medium-weight helicop- "not another bird-strike 19. The 430 is a 8,400 Pharm., Inc., gross-weight Wyeth ter with a maximum Brockert gross- pounds compared to the maximum (Tex.App.-Houston Dist.] [14th 5,500 weight pounds resistant, for Bell 407. ("The Supreme held pet.) Texas Court has Bell 430 is and Allman testified bird plaintiff prove cannot defect that Bell the Bell 407 to be did not sold claiming that defendant should have [a] "[tjurns doing [it] so bird resistant because (citing entirely product.”) Cater different 430,” “taking light heli- into a that Bell is Shears, pillar, 384-85 Inc. v. faster, copter making it smoother and (Tex. 1995)). performance,” for and that Bell is better Thus, opinion acrylic polycar- that a stretched opinions his have no non-judicial ap- successfully bonate windshield could be plication and differ from those he practices mated to the Bell in non-judicial 407 and make it bird settings. See id. at 557. by adding approximately resistant 1.5 As to relevant testing of his theory, bonding inches area. Hinds testified that he has not tested a 0.1 opinions Hinds’s inch monolithic polycarbonate also differ from those aircraft,21 in any he employs non-litigation that he contexts. does not know if has, anyone else proposed Hinds testified that his that he is not stretched aware helicopters in acrylic polycarbonate existence that windshield de- use a polycarbonate monolithic signs be transparency. would bonded to the helicopter, An expert always is not required but he admitted that all of the to do transparen- testing his company opinions, cies his “but makes are bolted to the lack of relevant testing to the possi- aircraft and that he extent it was experience has no ble, others, either the expert or designing transparencies is one light helicop- Thus, factor that points ters. Hinds does toward a not have non- determination expert that an judicial experience opinion is proposed with his unreliable.” de- Whirlpool, 298 S.W.3d at Robinson, 642. sign anything or similar. Hinds tes- See tified that (“That although theory his S.W.2d at 557 n. 2 has not expert tested, been he knows that his will design testifies based on research he has conduct- work because he has the necessary knowl- ed independent litigation of the provides edge experience many important, objective proof that the re- the other transparencies he has designed comports search with the dictates of good had not been designed science.”) before. But see (quoting Daubert v. Merrell Dow Ramirez, 159 S.W.3d at 904-06 Pharm., Inc., (holding (9th 43 F.3d Cir. expert’s theory rested on 1995) “subjec- his remand)). Indeed, (op. all of interpretation tive of the facts” when he opinions Hinds’s developed were for the did not connect theory any his physical litigation in this case. Hinds testified that evidence in the case or to any tests or he every believes helicopter is unreason- prepared calculations to substantiate his ably dangerous if it cannot sustain a four- theory). pound bird strike at full cruising speed but

acknowledged that he did not hold that Citing Sanchez, Corp. General Motors opinion Moreover, before litigation.20 this Appellants argue they presented le- despite litigation opinions, his Hinds testi- gally sufficient evidence of a safer alterna- fied that company his delivered a 2.2 design tive because “there no require- pound bird-resistant windshield for the Si- ment that a plaintiff actually design or korsky litigation S-92 while this pend- build or test the alternative.” See 997 ing (Tex.1999).22 and after he expert. was hired as an S.W.2d But Sanchez thicker, 20. opined Hinds further they that he thinks the twenty-five percent ted are are industry entire knew monolithic, that birds were a serious actually and are much thicker problem and that the manufacturers of heli- eighth-inch considering than an lay- the other copters government well negli- as the were ers. gent strikes, ignoring danger of bird published but papers subject he has on the stated, 22.The plaintiffs court "[T]he Sanchez encouraged nor industry the FAA or the did not have to build and test an automobile accept opinions. his prove transmission to a safer alternative de- sign. A only prove ‘capable need eighth- Hinds testified that he has tested ” being developed.’ id. at 592. windshields, polycarbonate inch but he admit- uses, any non-judicial Court’s not have could distinguishable. Sanchez not, and from been tested but was differs testing plain- related to a

statement about employs litigation. what he outside See the existence of tiffs burden to show expert’s testimony (holding at 640-43 id. not con- and did safer alternative conclusory, speculative, and not entitled applica- factors their or cern Robinson probative weight applying after Robinson opin- reliability expert’s tion to factors); Co., Transp. Coastal Indeed, Id. at testimony. ion 591-92. expert’s testimony was (holding at 231-33 its preserve that case to G.M. failed in conclusory judgment). too reliability expert’s challenge hold that that either We testimony. at 591. Id. Hindi’s acrylic polycarbonate wind- a stretched Sanchez, preserved Unlike could mated to the Bell 407 shield be reliability Hinds’s testi challenge adding 1.5 inches to the frame is Further, in San mony. expert unlike the conclusory, speculative, and entitled to chez, testing, not disclose Hinds did probative weight. Whirlpool, calculations, analysis, publi engineering Therefore, at 643. Hinds’s testi- supported opinion that cations that his mony is no of a alternative safer 1.5 adding inches to approximately design. inch bonding would retain a 0.14 area 4. Other Alterna- Evidence Safer acrylic polycarbonate or 0.1 inch stretched Design tive Bell a bird windshield to the 407 after underly absence of Hinds’s strike.23 The Having determined that Hinds’s analysis availability testing ing testimony concerning a safer alternative to “highlights the extent which [Hinds’s] design probative weight, is not entitled to to theory subject testing was and examin Appellants we must determine whether of reliability.” ing Whirlpool, other of a legally fered sufficient evidence at 642. design. alternative safer testimony does not summary, Appellants argue they presented Hinds’s poly- link his conclusions to the facts of the case that a sufficient evidence monolithic any, analysis, performed or the if that he carbonate windshield was feasible at they 0.14 inch of manufacture in 1997 to determine either a time “the acrylic Aerospatiale stretched or 0.1 inch offered evidence that polycarbonate AS-350, the Bell Part successfully windshield could be mated which like 407 is a by adding helicopter to the 27 with a similar de- 407 1.5 inches windshield 407, mounting theory sign structure. His relies to the Bell was with a offered monolithic, heavily upon subjective interpreta- single-layer polycarbonate his own First, tion, accepted has with- windshield in 1977.” there is no generally not been in community, in the aircraft does the record that the monolithic relevant Relying opin- opinion. We on other similar his reference Sanchez ions, holding many testimony asserts that our other deficiencies Hinds’s dissent specula- testimony conclusory conclusory specula- Hinds’s to illuminate the testimony "premised premise nature inch tive is on the erroneous tive of his that a 0.1 required polycarbonate acrylic inch was and to test or 0.14 stretched Hinds build prototype successfully 162-63 n. windshield be mated to a windshield.” Dissent at could contrary, merely it 1. To the we hold that Bell 407—and make resistant to 3.5 Hinds, witness, traveling expert required pound at was four bird 120 knots— adding explain mating 1.5 his conclusions and link them to inches structure analysis facts of he conducted around die windshield. the case or Mart, Inc., the AS-350 v. polycarbonate Jaimes Fiesta pound was resistant to a 3.5 bird strike or (Tex.App.-Houston [1st Dist.] to the helicopter would remain attached denied). Thus, pet. the existence of following pound a 3.5 strike. See Tex. bird the AS-350 is no evidence of a safer alter- 82.005(b)(1) § Prac. & Ann. Civ. Rem.Code native design for the Bell 407 as it relates design that alternative (providing must to the facts of this case. “prevented significantly reduced Appellants argue they present- also risk” of see injury); also Smith v. Co., ed evidence of feasibility Louisville Ladder 237 F.3d 519- because Bell cur- (5th Cir.2001) Texas (applying law and rently has prototype poly- with holding design safer not proven alternative carbonate windshields. But the prototype expert say that when could not alternative Bell 407 was after the developed accident design would have prevented plaintiffs helicopter was manufactured in fall). Moreover, Aerospatiale abandoned has it not been tested for bird resistance. polycarbonate the AS- windshields Indeed, that, there at trial because of polycarbonate’s reaction even in September time of trial cleaning agents, and current models no manufacturers were acrylic the AS-350 have as-cast wind- building Part 27 helicopters like the Bell shields similar to those the Bell 407. polycarbonate 407 with windshields and Tex. Civ. Prac. & Rem.Code Ann. no helicopter manufacturers were 82.005(b)(2) (providing § that safer alter- building Part 27 with helicopters kind native technologically must be feas- bird-proof of bird-resistant or windshields. ible). Further, presented Appellants Without evidence prototype that the heli- evidence of the incorporating costs of resistant, copter actually bird exis- AS-350 into the Bell 407. See of a prototype polycarbonate tence Norman, Mfg., Honda Am. Inc. windshields, developed first after the acci- 600, (Tex.App.-Houston 607 [1st 1997, helicopter dent was manufactured in denied).24 2003, pet. Dist.] Without evi no evidence technologically is of a feasible concerning of incorporating dence the cost safer alternative at design time of 407, design the AS-350 into the Bell there manufacture that reduce would the risk of no evidence of the feasibility economic injury.25 & id.; See Tex. Civ. Prac. Rem.Code design. the AS-350 See Smith v. (Tex. Inc., 473, 82.005(b)(1); Smith, §

Aqua-Flo, Ann. also see 237 478 denied); App.-Houston pet. F.3d at 519-20. [1st Dist.] stated, 24. Norman court Bell military polycar- 407 for the either —with acrylic bonate or stretched windshields—in design by While the use of an alternative Dissent, 1997 or 1998. at 165 n. 3. may another manufacturer establish tech- However, there is no evidence of whether the law, nological feasibility, ... as matter of military helicopters capable resisting were it does not economic establish feasibili- pound a 3.5 to four like the one involved bird ty.... marketplace Evidence in the of use they in this case or whether were resistant to alone is not sufficient to establish economic (like only pound a 2.2 all of the bird other feasibility under Texas law. To establish trial). helicopters bird-resistant discussed at feasibility, plaintiff economic must in- Further, there of the is no evidence thickness proof incorporating troduce of the cost military of the helicopter windshields or of technology. this (such design their monolithic or multi- as (internal omitted). Id. citations layer) they are to determine whether at all out, comparable designs pro- Similarly, points to the alternative and as the dissent posed by Bell helicopters Appellants built two about the size this case. part sustain this Finally, point to evidence lants. We therefore Appellants second the bird-resistant Bell Bell’s issue.27 produced that Bell King- 222 in the 1980’sbecause the United time required helicopters all at the dom Helicopter Door D. Mounts However, the Bell 222 be bird-resistant. in its Bell contends fifth issue helicopter only and was

was a Part 29 mounts there is no evidence the door pound 2.2 bird strike. The resistant to a defectively designed were and the helicopter, Bell 407 a Part that a safer alternative existed weighed sub- bird in this accident involved pre Appellants because the evidence Thus, stantially pounds. than 2.2 more speculation was or con sented “textbook the Bell is no evidence of existence of jecture.” for the Bell a safer alternative & Rem.Code 407.26 See Tex. Civ. Prac. Ross, reconstruc- Appellants’ accident 82.005(b)(2); Smith, § F.3d Ann. at expert, tion testified that he examined 519-20; Brockert, 287 S.W.3d at see also Bell wreckage of a Bell 206 and that the 384-85). Shears, (citing 206. Ross 407 is derivative Bell 206 he ex- expert as testified that the wrecked Bell competent Absent as amined was in about the same condition to whether it was feasible in 1997 mount case, inch the wrecked Bell 407 in this polycarbonate a 0.1 inch or 0.14 Bell 206 were made of alumi- acrylic stretched windshield to a 407 sides of num, were resist that the sides of Bell 407 so the windshield would both material, that the pound 3.5 and also not become dis- made of carbon-fiber bird helicopter, pre- of the Bell 206 did not come off its lodged Appellants from the doors crash, of a but that the doors of the Bell sented safer alternative However, off the instant design for the windshield on the 407 came crash. impact sustained with a Ross never testified that the Bell 407 would have were pound prevented signifi- defectively designed because its sides 3.5 bird Further, cantly injury Appel- the risk of made of carbon-fiber material. reduced ilarly, larger points 26. The the Bell the UH-1 is three times than dissent the Bell the Bell UH-1 evidence of safer totally is "made different” structure design, helicop- but of these alternative none polycarbonate wind- than the and its remotely comparable Bell ters is to the 407. inches, two one-half times shield is 0.25 and Dissent, 222 is See at 165 n. 3. The Bell a design pro- polycarbonate the the thickness of 10,000 13,000-pound helicopter, Part 29 to posed by Appellants. the "shaped entirely with a that is large helicopters Allman that testified these 407,” different than the that is installed with looking category” are "in a and that different adhesive, bolts that was rather than and designs be at them alternative "would pound resistant a 2.2 rather than bird a something taking your like the end off front pounds. bird excess of 3.5 Allan Allman put[ting] Honda 250 Ford truck and it on a (the comparing testified that the Bell cur- above, Appellants As Civic.” discussed 222) rent the Bell the Bell 407 version of is prove successfully cannot existence of orange.” "comparing grape like to an design by offering evidence safer alternative Bell 609 is tilt-rotor aircraft —both an entirely Bell differ- that should have built an airplane helicopter to the V-22 and a —similar Brockert, product. at 770 ent See Osprey. multi-ply windshield is 0.75 Its Shears, 384-85). (citing S.W.2d at thick, including ply inches at outer least one glass layers of 0.1 and two of 0.25 inch inch address, opin- express We no 27. need not polycarbonate, is and it more than seven concerning, the remainder of Bell’s sec- ion polycarbo- times the thickness of 0.1 inch by Tex.R.App. P. design proposed Appellants. nate ond issue. 47.1. Sim- suggested system straint although implicitly Ross because there Appellants’ proposed construction of the Bell 206 no al- the aluminum system ternative restraint design, explain why safer he was available was a did use on helicopters for civil or design, provide is a the aluminum safer proposed alternative restraint concerning system crash of the any details prevented would have or significantly re- explain why 206 to the doors re- Bell duced injuries. Gloria’s give any on that or helicopter, mained doors of the 407 would reason Availability 1. Commercial have remained on the had its Appellants contends that did not been constructed of aluminum. sides meet their proving burden of that the MA- Therefore, conclusory Ross’s 16, Appellants’ safer proposed alternative door no evidence that the mounts on design, and underlying technology its were defectively designed the Bell 407 were available for the time use at the Bell 407 that there was an available safer alterna- was in 1997 Appel- manufactured Co., design. Transp. tive See Coastal seatbelt expert, Muzzy, lants’ William “un- (holding expert’s at 231-33 testi- analysis dertook no of whether the conclusory mony support was too passed rigorous could have FAA test- judgment). ing procedure[ and certification so it ] could have been actually installed on the Appellants incorrectly contend argues aircraft.” Bell Appellants also complaint concerning that Bell waived its showing “made no that the its MA-16 or sufficiency testimony. of Ross’s underlying technology would approved be reliability challenge requires “[W]hen use Department” the State under underlying court evaluate the methodol Trafficking Reg- International in Arms technique, ogy, or foundational data used (ITAR). However, ulations Bell cites expert, objection must be timely contentions, authority so that the trial court has the oppor made we find none. analysis.” to conduct this tunity Id. at “However, challenge when the is re assertion, Contrary Bell’s sec record, stricted to the face of the for exam 82.005(b) tion require proof does not expert testimony is ple, speculative when proposed safer alternative face, conclusory party on its then a may would have gained regulatory approval. challenge legal sufficiency of the evi See Tex. & Civ. Prac. RermCode Ann. even in the of any objection dence absence 82.005(b). Instead, 82.005(b) § section re Here, admissibility.” to its Id. Bell’s quires proof safer that the alternative de challenge does not concern Ross’s method sign economically technologically “was ology, technique, or data. In foundational product feasible the time left the stead, Bell argues testimony that Ross’s is control of the manufacturer or seller conclusory speculative and on face. No reasonably application existing or preserve objection required the no knowledge.” achievable scientific Id. To issue for review. appellate evidence adopt Bell’s contention that a claimant id. We sustain Bell’s fifth issue. prove proposed must that the alternative design approved by would have been System Helicopter E. Restraint agencies regulatory relevant would be tan argues in additional adding Bell its fourth issue that the tamount element action, by submitting trial claimant’s defect cause of design design court erred claim concerning helicopter defect re- we decline so. Ani- and to do See Petco Schuster, locking unlocking in the restraint 144 S.W.3d the and Supplies, Inc. mal pet.) system continually allowed the seatbelt to (Tex.App.-Austin court, (“As we appellate an intermediate it not point extend where did re- Texas law as we see not free to mold are her in her seat or even inside the strain precedents follow the fit but must instead helicopter. He testified that the restraint and Supreme Texas Court unless of the system designed worked as it was but that high overrules them or the until the court been that it designed it should have so Legislature supersedes them Texas unlock. would lock and statute.”). por therefore overrule this We Again the animation of the using crash Bell’s issue. tion of fourth sequence, Muzzy helicop- testified that the Significantly Reduce Prevent or during the crash ter’s movements se- Injury Risk quence were omni-directional because down, “[y]ou you have have argues Bell that there is no a force forces also laterally alter you that the MA-16 was a safer have deceleration forces evidence ex Muzzy native never have in all you forward. So them three pre how MA-16 would have plained averred that “the lack directions.” He significantly the risk of vented reduced sensing an omni-directional vehicle retrac- injuries. Gloria’s ... proximate the aircraft was the tor being ejected cause [Gloria] [her] Muzzy testified that MA-16 was subsequent Muzzy’s death.” is design to restraint safer alternative presented more than a conclusory in the MA-16 system because the proposed that the scintilla evidence saf- retractor sensing has an omni-directional prevented er alternative would have impact and the 407’s after movements significantly reduced the risk of Gloria’s Muzzy explained were omni-directional. Burry, death. See 535-36 “dual-sensing that the MA-16 is a omnidi- (holding expert “sufficiently explained that that both incorporates rectional retractor” testimony” the basis for his there sensing sensing vehicle and web technolo- system was more than a scintilla of evidence of a and that the Bell 407 restraint gy design). web He tes- alternative We therefore sensing technology. had safer sensing the seatbelt overrule the remainder of Bell’s fourth tified web locks rapidly pulled when seatbelt is forward issue. will

but that seatbelt unlock when tension the seatbelt released. Comparative Responsibility VII. contrast, sensing vehicle the seatbelt locks fifth Appellants contend their issue helicopter when accelerated is legally factually Muzzy testified the MA-16 direction. jury’s finding insufficient to prevented moving would have Gloria from negli- Captain comparative Damian’s has omni- outside because it Appel- gence fifty percent caused sensing. directional dual injuries. lants’ Using the animation of the crash se- Muzzy each of the quence, demonstrated A. of Review Standards times Gloria’s restraint would may legal a suffi We sustain Muzzy locked and then unlocked. testified (1) ciency challenge only when the record though that even Gloria her seatbelt had on, a ejected complete heli- discloses absence of evidence of partially she was from the fact; (2) during vital the court barred rules copter sequence the crash because a

157 if, only from giving weight considering weighing of law or of evidence after and all vital prove pertinent the evidence offered to a of the evidence the record fact; (3) prove finding, offered to we evidence determine that the evi- scintilla; weak, vital fact is no than a mere supporting more dence is so finding or (4) conclusively establishes to the contrary overwhelming weight evidence so of evidence, Uniroyal a vital fact. opposite of all the that the answer should be Martinez, v. Goodrich Tire 977 S.W.2d set a new Co. aside and trial ordered. Pool v. 328, (Tex.1998), (Tex. denied, Co., 629, 334 cert. U.S. Ford 526 Motor 715 635 S.W.2d 1336, 1986) 1040, Alviar, 119 143 reh’g); S.Ct. L.Ed.2d 500 on (op. Garza v. 395 ” (1999); Calvert, 821, (Tex.1965); Robert W. “No Evidence 823 King’s S.W.2d In re ” Estate, 662, 660, and Er Evidence Points Tex. 150 244 S.W.2d 661 of “Insufficient (1960). ror, 361, (1951). 38 Tex. L.Rev. 362-63 sufficiency depend Factual issues Anything more than a scintilla of evidence on who has the burden at proof trial. Co., is legally support finding. sufficient to v. Am. 902 Sling Gooch S.W.2d Cazarez, 181, 1995, v. Cont’l Prods. Co. 937 (Tex.App.-Fort 184 Worth Coffee writ). 444, (Tex.1996); v. S.W.2d 450 Leitch the party When with the burden of (Tex.1996). 114, find, Hornsby, proof 118 from a appeals failure to When the offered to vital prove party evidence show that must the failure to find is fact is so to do no than against great weak as more weight preponder create a suspicion mere surmise ance of the evidence. v. Cropper Caterpil existence, Co., (Tex. the evidence is no more than lar 754 Tractor S.W.2d and, effect, 1988); Herbert, scintilla legal no evidence. Herbert v. see S.W.2d Con/Chem, Inc., (Tex.1988). 141, 144 Kindred v. (Tex.1983). than a More scintilla

evidence if the Analysis exists evidence furnishes B. some differing reasonable basis for conclu- Ross, Appellants’ helicopter pilot sions reasonable minds about exis- expert, helicopter testified Int’l, tence of a vital Rocor fact. Inc. flying speed at 120 knots air forward Co., Nat’l Ins. Union Fire S.W.3d 1,500 Captain feet above sea level when (Tex.2002). In determining whether a five-degree Damian made course correc legally sup- there is sufficient evidence to sighted tion to the flock avoid of birds review, port under must finding we the distance. Ross said he had no finding consider evidence favorable to the five-degree correc criticisms course if a reasonable factfinder could and disre- pilots acknowledged tion gard contrary finding un- pack birds made a move to avoid the less reasonable factfinder not. could explained Ross the five- birds. Islas, Ready Cent. Mix Concrete Co. v. 228 degree would have course correction (Tex.2007); Keller, City of helicopter away moved the the birds from 168 S.W.3d at at a rotor distance three-and-one-half reviewing lengths

When that he this was suffi assertion believed factually past that the evidence is insufficient to cient because the moved finding Captain we set finding, aside the flock of birds.28 Based conflicting testimony 28. The about written Panamanian heard birds in his statement to authorities, single separated bird from the flock of that he Lorenzo testified example, Captain Garay birds. For acknowl- pilots heard refer to the of birds but flock edged that he never mentioned the flock do, the pilot the err on he bird so should Ross stated that will testimony, Garay’s moved the helicopter past to avoid in attempting believed side of caution not birds bird did Moreover, flock of to a response collision. ap- pack, main that it come from the that hypothetical question, Ross testified above, and helicopter from proached pilots if some fault on the place he would pi- approached quickly, giving it that thirty sixty sec- they hang-glider saw try to of a second to lots fractions hang- failed avoid the away onds but Captains that Da- it. averred avoid Ross five-degree making only a glider after negligent, not that Garay mian and were Finally, agreed Ross correction. éourse helicop- all to save the they they did could action aggressive that evasive a more they and that did passengers, ter and its have avoided pilots in this case would cause the accident. proximately the mid-air collision. cross-examination, admitted on Ross testimony from jury also heard however, Garay’s Captain written that Wandel, con- expert, Bell’s pilot Warren investigators to Panamanian statement by Captain cerning comparative negligence twenty days the accident mentioned after ninety per- single and did not mention a that only a bird Damian. Wandel testified feet, acknowledged of birds.29 Ross also flock cent of bird strikes occur below do all he can to avoid pilot that wants to of bird strikes eighty-three percent that bird, especially a mid-air with a collision feet, flying occur closer below 1500 the size the one that bird struck of a bird ground increases the chances helicopter. seeing He testified that birds strike, avoidance important that an poten- would him to think of a ahead alert fly aircraft “at technique is to he act tial mid-air and that would collision you also highest altitude can.” Wandel agreed to avoid a Ross that the collision. avoiding listed considerations for other pilots helicopter could have turned strikes, including flight plans charting bird seeing sharply or after the birds hovered known bird concentration areas avoid sixty away at knots. thirty to seconds in ar- reducing speed operating when agreed Captain Damian could He also that, activity. He eas of also testified bird thirty forty- turned have single there bird assuming even degrees five increased the significantly birds, Cap- flying away from flock of birds, helicopter’s from distance made a more tain Damian should have would added ninety-degree two turns seeing the course correction after drastic flight than one to the overall less minute doing flock and that so would have of birds time, Cap- and that there was reason the accident. conclude that avoided We tain Damian not have made two could factually suffi- legally ninety-degree Ross also acknowl- turns. finding jury’s cient fly edged up that a vulture can to 900 feet See Cent. Captain negligent. Damian was thirty five-degree and that a seconds Co., 228 S.W.3d at Ready Mix Concrete course would not alter the heli- correction 651; Keller, 807, 827; at addition, City copter’s feet. Ross course 900 Pool, 635; Garza, 395 that a what a agreed pilot does know nothing anima- look like the mention statement would admitted he did not the flock during testimony. opin- deposition prepared explain his birds his tion Ross jury. ions to the hypothetical agreed 29. Ross also that a ani- Captain Garay’s written mation based on 823; Estate, Rosell, at 244 S.W.2d King’s (citing dence.” Id. at S.W.2d 89 S.W.3d 659-60). at 661. the foregoing, Based on and after re- Concerning jury’s appor the the viewing light all of evidence in the fifty percent of to responsibility tionment jury’s the findings, crediting favorable to Damian, “jury the wide Captain given is favorable evidence if a reasonable factfin- duty in to performing latitude its sworn could, der disregarding evi- contrary responsi as factfinder in allocating serve dence unless reasonable factfinder could an accident to section bility pursuant for not, we that there legally hold sufficient of the civil practice 33.003 and remedies support jury’s evidence to findings that Stages, Rosell v. code.” Cent. W. Motor Captain negli- Damian was comparatively Inc., 643, (Tex.App.-Dallas gent his negligence fifty and that caused denied). Rosell, despite con pet. percent injuries. of Appellants’ See Cent. evidence, the flicting court affirmed Co., Ready Mix Concrete at S.W.3d sufficiency support of factual the evidence 651; Keller, City 168 S.W.3d at of jury’s seventy ing apportionment of Likewise, considering after and weighing responsibility percent to the claimant all of pertinent the evidence to jury’s causing injuries stopped his own he when say cannot findings, we that the evidence injured help to motorist on the side of supporting jury’s findings is so weak road, ap moved of an into the lane contrary to the of overwhelming weight bus, bus, proaching but warned of the all the evidence it should be set aside take Similarly, did not evasive action. Id. Pool, and a new trial ordered. See Stores, Inc., E-Z Hagins v. Mart a case 635; Garza, 823; S.W.2d 395 S.W.2d at involving a fatal fall a construction Estate, King’s 244 S.W.2d at 661. We

worker, jury’s the court ap affirmed the Appellants’ therefore overrule fifth issue. portionment sixty percent responsibility to the decedent dem because the evidence Anguish Damages VIII. Mental plat onstrated that it was unsafe to use a Appellants contend their fourth positioned form while at an that the angle, issue trial to by failing that the court erred place decided not attempt decedent trial damages order new because the wall, platform against flush against awarded are “so the decedent hazards of knew the great weight preponderance working ground safety above the without manifestly unjust.” evidence as to be Be (Tex. harness. See 128 second, disposition cause of our of Bell’s Given App.-Texarkana pet.). fourth, issues, fifth we address conflicting presented jury, evidence $50,000 jury’s an award mental including but not limited to the guish damages Gloria’s estate. See Tex. that the accident would not have occurred R.App. P. 47.1. Captain aggres Damian had taken more action, ap sive that the Appellate evasive we conclude briefs must contain legally sufficient factually propriate citations record. See Tex. (i). jury’s fifty apportionment P. And bare R.App. 38.1 assertions percent responsibility proper Damian. Captain error without citation to the record is not the place of this Court to waive error. Fredonia State Bank “[I]t Co., judgment substitute for that the Gen. Am. Ins. Life (Tex.1994) if jury, (appellate even a different of allo 284 percentage court has discre could be the evi- supported by point cation tion to waive of error due to made- Appellants’ Cnty., we should overrule first v. Dallas that quate briefing); Devine procedure (Tex.App.-Dallas 513-14 issues rule of civil three because 606(b) 327(b) party when a (holding prohibit that rule of pet.) evidence he complaint, brief a adequately testimony any to matter concerning fails or juror Ap- Although on appeal). the issue waives occurring during deliberations statement brief to eight pages of their pellants devote than related to outside influ- other matters damage jury’s contention the 327(b); their P. Tex.R. ence. See Tex.R. Civ. weight and against great the awards áre 606(b). Evid. evidence, Appellants’ the

preponderance any of the rec- portion not cite brief does Traded Answers A. the their assertion to ord 327(b) procedure civil states: Rule of $50,000 damages award- anguish in mental may testify any to matter juror the A against ed Gloria’s estate are so to occurring during statement great preponderance weight unjust. And manifestly jury’s to be course of the deliberations to evidence damages upon any his or although Appellants anything included the effect Gloria’s estate in the recitation awarded to emotions as influ- juror’s other mind or issue, the remainder of their fourth encing him to to or dissent from assent damages briefing concerning Appellants’ mental concerning pro- the verdict his $50,000 mentions awarded again therewith, never except cesses connection Be- anguish. to estate mental Gloria’s testify whether juror may any that a that the dam- Appellants’ cause assertion improperly outside influence was against are awarded Gloria’s estate ages any juror. brought upon to bear Nor weight and great preponderance may evidence of his affidavit or supported by is not record refer- evidence by concerning a statement him matter authority, they to legal or citation ences precluded which he would be from about preserve appel- issue for have failed this testifying be for these pur- received (i); Tex.R.App. P. 38.1 late review. poses. Bank, 284; State S.W.2d at Fredonia 327(b). P. Rule of Tex.R. Civ. evidence

Devine, 130 S.W.3d at 513-14. We over- 606(b) virtually prohi- sets forth a identical fourth issue. Appellants’ rule against jury concerning bition any matter other than outside influence. Alleged Jury IX. Misconduct 606(b). Evid. Tex.R. contend in their first two is- Appellants Appellants argue trial by failing trial sues that the court erred juror accepted court should have affi juror filing, failing affidavits for accept open hearing an davits and conducted open concerning an alle- hearing conduct juror testimony jury’s receive gations jury answers on traded-off “trading-off’ answers alleged was a new jury charge, failing grant jurors did not act of the involve overt alleged Ap- jury trial due to misconduct. Appellants any juror’s processes. mental if pellants in their issue that argue third governed act is also contend an overt into the al- prohibits inquiry Texas law 327(a), case, permits rule which evidence of jury then leged misconduct this misconduct, 327(b), than rule rather open-courts prohibition violates the juror testimony concerning prohibits the which provision of the Texas constitution and Tex.R. P. Compare Civ. Fifth and Fourteenth deliberations. Amendments 327(b). 327(a), P. responds with Tex.R. United States Constitution. Bell Civ. Jackson, However, Eagle Archery, Inc. v. must be each case granted.”30 Golden stated: supreme court cited Appellants decided before effective dates of the current considering proce rule of Texas courts Most 327(b) 606(b). pre- dure and rule of question have held that the rules juror from testifying Supply vent a See Elec. Robinson Co. v. Cadillac during (Tex. jury improper matters 130, discussed 706 S.W.2d Corp., Cable 131-32 rules agree. We deliberation. 1986, App.-Houston ref'd [14th Dist.] writ that an influence” contemplate “outside n.r.e.), grounds by, overruled on other from originates sources other than 24 Eagle Archery, Golden at & S.W.3d 369 here jurors Accordingly, themselves. n. (noting 3 effective date of and rules jurors speculat- that some the accounts 327(b), stating, former Rule effec “Under in the ed whether alcohol was involved 1, 1984, juror tive until April permit re- may and that Jackson accident statements, ted to as to testify matters and settlement, jurors ceived a acts’, during or ‘overt which de occurred issues, are all traded answers on two liberations.”). Therefore, we are bound occur- juror statements about matters 606(b) 327(b) of rules language and They ring during their deliberations. prohibits juror testimony concerning outside, influences. are not evidence any other than matter outside influence (internal (Tex.2000) 362, 24 370 S.W.3d Gold,en supreme holding and the court’s omitted) added). (emphasis citations Eagle Archery that an alleged trading Eagle Golden to this Applying Archery jury swers is not an influ outside case, juror testimony that an- they traded 327(b); ence. See Tex.R. Civ. P. Tex.R. swers not evidence of an influ- outside 606(b); Archery, Evid. 24 Eagle Golden Thus, ence. id. civil rule procedure See adopt S.W.3d at 370. And we decline 327(b) 606(b) rule of evidence prohibit- and rule, by Appellants, in suggested receiving juror court ed the trial from quiry jury permissible into deliberations is or other con- juror affidavits jury if there facie prima evidence of cerning alleged traded answers. See during misconduct other than deliberations 327(b); 606(b); P. Tex.R. Tex.R. Evid. Civ. Appel an outside influence. We overrule 370; Eagle Archery, 24 Golden S.W.3d lants’ and second issues. first Castillo, see Ford Motor v. 279 also Co. (Tex.2009) 656, (“[Discovery S.W.3d 666 Arguments B. Constitutional jurors ordinarily should be limit- involving (1) ed to facts and evidence relevant in their third Appellants contend improp- whether outside influence was prohibition juror against issue that erly brought upon any juror, to bear and testimony concerning “trading-off’ (2) of a claim was not juror rebuttal that a pro rights violates their answers due serve.”). qualified to protection equal cess and under United process, States Constitution and due Appellants cite several for the cases trial, open courts under the Texas proposition trading that “the of answers and V, See answering and the cluster are of such se- constitution. U.S. Const. amends. XIV, 1; I, § §§ trial art. 19. verity obvious harm that a new Tex. Const. writ); Strange City, generally (Tex.Civ.App.-Texarkana Treasure Underwriters, (Tex. 1980); Monkey Grip Rubber S.W.2d 604 v. Consol. 323 S.W.2d Crawford Walton, (Tex.Civ.App.-Beaumont ref'd 122 Tex. writ Co. v. Reed, (Tex. n.r.e.). 1932); Landreth v. Acrich; Romagosa and Ida Roma- Archery, appellant Lorenzo Eagle In Golden 327(b) gosa Aranjo nothing. take de that rule “conflicts with argued im right to a fair and guarantees WALKER, concurring J. filed I, in article sections 10 jury trial” partial dissenting opinion. 15 of the Texas constitution. Rejecting argument, at 374. WALKER, Justice, concurring SUE approval two the court discussed dissenting. Corpus from the Christi court

cases I. INTRODUCTION collectively held that rules appeals issue, 327(b) 606(b) Bell Heli- Appellee its second pro violate do not due Textron, copter Inc. that the trial argues the Amendment or cess under Fourteenth 6, by submitting question court erred the constitution, right Texas the to a fair the Spe- design question, jury. defect to the the Texas consti impartial jury and under claims, cifically, Majority and the tution, provision or the courts open holds, Opinion testimony that Bill Hinds’s Id.; Texas constitution. see Soliz that a only is the evidence in the record Saenz, (Tex.App. 779 S.W.2d 934-35 design safer alternative windshield was denied); King v. Corpus Christi writ feasible in when the Bell heli- .1997 Bauer, 767 S.W.2d copter was I can- at issue manufactured. denied). 1989, writ We follow (Tex.App.-Corpus Christi testimony is agree that Hinds’s the Soliz, Eagle, King and and hold Golden only feasibility supporting evidence of 606(b) 327(b) rules and do not violate design alternative element of safer rights States Appellants’ under United design claim windshield defect assert- or the Texas constitution.31 Constitution Even against Appellants. ed ex- third Appellants’ We overrule issue. cluding testimony, Hinds’s remainder of the evidence X. Conclusion fifty-nine reporter’s volumes of the record Ap- Because we have overruled each of than a contains more scintilla of evidence issues, part six sustained of Bell’s pellants’ design that a safer alternative —either issue, fifth second issue and all of its acrylic 0.14-inch stretched issues, overruled remainder of Bell’s polycarbonate 0.10-inch monolithic portion we affirm of trial court’s technologically windshield—was and eco- claims judgment relating to the on behalf nomically feasible that the safer Gasperi’s of Gloria estate. We reverse the design significantly alternative would of court’s judgment, remainder the trial reduced the risk the black vulture judgment Appellants and we render helicopter’s penetrated would have Damian, Maria de individ- Vargas Lourdes Captain windshield intact killed Da- ually, next mian, as friend Nicole Denisse that use of the safer alterna- Vargas, representative Damian and as tive windshield would not have Chen, Damian substantially impaired the estate Demetrio de- the Bell 407’s utili- Barrios; ceased; I Garay ty.1 Accordingly, I concur Ricardo Adolfo dissent. argument Appellants To the rules and concise for the contentions 31. extent contend 327(b) 606(b) appropriate equal made with citations to authori- protection violate ties). Amendment, we clause of Fourteenth Appellants' portion overrule that third point inadequately Tex.R.App. disagree Majority Opinion’s I briefed. also 38.1(i) holdings qualified clear that Hinds testi- (requiring P. brief to contain a Majority’s with the remainder termining whether there legally suffi Opinion. cient evidence to support the finding under

review, we must consider evidence favor II. EVEN DISREGARDING HINDS’S finding able to the if a reasonable factfin-

TESTIMONY, LEGALLY SUFFI- der disregard could and contrary evidence CIENT EVIDENCE TO EXISTS to the finding unless a reasonable factfin- SUPPORT OF SUBMISSION der could not. Cent. Ready Mix Concrete QUESTION 6 TO THE JURY Islas, Co. v. (Tex. Wilson, 2007); City Keller v. A. Standard Review 802, 807, (Tex.2005). may legal We sustain a sufficiency chal (1) lenge only when the record discloses a B. The Charge Court’s complete absence of evidence of a vital Question number 6 submitted the follow- fact, (2) the court is barred rules of law ing question to the jury: or of from giving weight QUESTION NO. 6: fact, prove evidence offered to a vital Was there a defect in the heli- (3) the prove evidence offered to a vital copter at the time possession it left the scintilla, (4) fact no more than a mere or Helicopter Textron, of Bell Inc. that was conclusively evidence establishes a producing cause injuries of the in Uniroyal opposite of a Good vital fact. question? Martinez, rich Tire Co. v. 328, 977 S.W.2d denied, (Tex.1998), cert. 1040,

334 526 U.S. “design A defect” is a condition of the 1336, (1999); 119 S.Ct. 143 L.Ed.2d 500 product renders it unreasonably “No Evidence” and Calvert, Robert W. dangerous designed, taking into con- ” Error, Evidence Points sideration utility product of the and “insufficient (1960). 361, 38 Tex. L.Rev. 362-63 In de- the risk involved in its use. For a de- fy concerning industry a safer alternative twenty years windshield automotive ago over ” design opinions speculative and that experience his were and airbags’ has no with side " conclusory and engi- or not based on sound and 'never ran a crash impact test with side neering principles. holdings by airbags, All of designed these impact airbag, never a side majority premised are designed on the erroneous never impact a vehicle with side premise required airbags, that Hinds was to build and and never papers wrote about "); prototype impact airbags’ test a windshield. But no re- side see also MCI Sales & exists, however, Serv., Hinton, quirement expert that an in a Inc. v. 30-31 design 2008) (same, actually designed defect (Tex.App.-Waco case have holding also design built available safer alternative in "the Plaintiffs did not have to build and test a design"), qualified testify order prototype prove to be to a safer a safer alternative design. (Tex.2010), Corp. 'd, alternative See Gen. Motors v. 329 S.W.3d 475 cert. aff denied, - Sanchez, (Tex.1999) -, U.S. 131 S.Ct. (2011). Indeed, (holding expert qualified testify Majority to safer L.Ed.2d 1246 design, upholding jury finding Opinion alternative testimony holds that Hinds’s consti defect, design recognizing expert specifically was tutes no evidence because it was qualified testify concerning testing safer alterna- based of a 0.14-inch stretched design, stating plaintiffs tive acrylic "the did windshield or a 0.10-inch monolithic not have to build and polycarbonate test an automobile windshield in a Bell 407. But because, prove transmission to a safer alternative de- I do not address these issues even sign”); Corp. Burry, Gen. excluding testimony, Motors Hinds's more than a (Tex.App.-Fort Worth concerning scintilla of evidence exists the saf denied, abated) pet. pet. (rejecting design conten- er alternative windshield element of expert question tions that in defect case was not 6 so trial court did not err " qualified by submitting question because he ‘last worked in the jury. issue, Bell claims that have In its second to exist there must

sign defect is the Hinds’s design. alternative been safer wind- a safer alternative the record that means a design” “Safer alternative technologically and eco- shield actu- other than the one product design the Bell nomically in 1997 when feasible probabili- ally used that in reasonable Bell claims 407 was manufactured. ty— proposed safer alterna- neither Hinds’s prevented signifi- 1. would acrylic designs 0.14-inch stretched tive —a risk occur- cantly reduced poly- windshield or a 0.10-inch monolithic substantially without question rence technological- carbonate windshield —were (1) impairing product’s utility acrylic feasible the stretched ly because heavy in a was too to be used windshield technologi- economically 2. was 407; Part like the Bell light, time left cally product at the feasible (2) of a mono- because insertion 0.10-inch Textron, Helicopter the control of Bell into a Bell polycarbonate lithic existing application Inc. hun- require 407 would “hundreds and knowl- reasonably achievable scientific pounds of structure to be added dreds” edge. windshield; polycarbonate Answer “Yes” or “No.” (3) po- a 0.10-inch monolithic stay lycarbonate windshield would answered, “yes Answer: ”] [the frame in the of a bird the windshield event push through would strike but instead Testimony Other and Evidence C. cockpit. into frame in the Record below, excluding As set forth even The crash at issue when a 3.5- occurred of testimony, more than a scintilla Hinds’s 4-pound vulture hit the 0.10-inch black each of the vital proving evidence exists acrylic windshield of a Bell 407 as-cast necessary the safer alter- facts by Damian. helicopter being Captain flown of native element experts All maximum agreed to the design defect claim submitted Bell 407 have been speed could question in 6.

traveling at was the time bird strike Feasibility Technological heli- penetrated

120 knots. The bird windshield, it, in copter’s making a hole that a jury’s finding The safer alterna- cockpit intact. Several and entered the 0.14-inch tive windshield —a helicopter’s of pictures the bird acrylic bird-impact resistant stretched evidence; windshield were offered into poly- windshield or a 0.10-inch monolithic a hole they the bird intact and showed bird-impact wind- carbonate resistant straight helicopter’s as-cast through Bell 407 shield—existed in 1997 when the Cap- acrylic windshield. bird struck supported was at issue manufactured is Damian in the head either killed tain impor- forth below. Most set to lose so tantly, prior him or caused him consciousness Bell manufac- itself for helicopter’s bird-impact he over the con- resistant windshields slumped tured manufac- helicopters.2 of its Bell’s trols. some helicop- Gailey expert Bell manufactured and sold Bell 2. Tom on the structure —Bell’s in bird-impact with windshields employee a Bell who had ters resistant because, time, Kingdom twenty-three years for at the United at that worked Bell for 1980s, bird-impact wind- early required that in the UK resistant time trial—testified cally they feasible bird-impact ture of resistant windshields suffered from prior issues, to 1997 is some evidence that it was clarity durability Bell devel- teehnologically feasible Bell to manu- oped coating study via a it concluded in facture a bird-resistant windshield 1997 1994 that of the clarity eliminated all application for the Bell exist- durability issues Bell had encountered with ing reasonably achievable scientific polycarbonate And coating windshields.3 possessed. knowledge that Bell itself appreciably windshield does not add windshield;

Although at trial that thickness poly- coating “[t]he Bell asserted very technologi- carbonate were not thin one mil. within windshields It’s tolerance issues, Gailey shedding that he the rain shields. testified was not sure the chemical resis- issues, bird-impact if the Bell 222 scratching resistant wind- tance and the issues some- polycarbonate; may shield was "it have polycarbo- times encountered with the use of 1975, European regulations been.” Since nate windshields. testified: Webster bird-impact required resistant wind- Q. '94, Okay. your study ARC which 6,000 weighing helicopters pounds shields on years was three before this 407 was more; 5,500 weighs pounds. the Bell 407 manufactured, you you determined that had Webster, Steven Bell’s director of advanced coatings protection, that would UV enhance technologies processes, testified that Bell shedding, rain pro- chemical resistance and began manufacturing the Bell with the against scratching, you? tection didn't bird-proof heated window assemblies in 1976 A. Yes. Europe put for sale in but did that wind- Q. polycar- And that included coated being shield in the Bell sold in the U.S. 222s bonate, correct? Gailey had testified that Bell also manufac- A. Yes. bird-impact tured a resistant windshield for Q. '94, Okay. you coating So in had a 609; "two-ply polycarbonate the Bell it awas on, you put including polycarbonate, could with an called PVB adhe- it[’]s adhesive— you satisfactory dealing plies polycarbonate. sive—between the two problems, you? these didn’t glass ply And then of tenth-inch there’s problems, yeah, A. It all addressed those outside, layer and it has of adhesive also trying to make it better. layer polycarbo- between it and the outer Q. years years Three before—be- —three layers polycarbonate nate.” The of the Bell your only poly- cause those are criticisms of approximately 609 are each one-fourth-inch '94, y’all carbonate. So had that solved in thick, is, that thick. The entire 0.25 inches years three that before this two bird-impact resistant windshield for the Bell family people's of died in these members weighs approxi- 609 is 0.75 inches thick manufactured, was correct? mately thirty pounds per side of the front windshield. technology many A. available This was for 1970s, Webster in the Bell testified that also years. helicopter with manufactured a UH-1 a 0.25- Q. is, My point you satisfactory had a polycarbonate inch monolithic windshield. coating you that solved the criticisms had Cline, project engineer Steven Scott a who polycarbonate years for before three this twenty-eight years had worked for at Bell for people aircraft was that these manufactured trial, the time of that in 1997 and testified in, crashed correct? manufacturing bird-impact Bell re- was issues, yes. A. It addressed those military helicopters. sistant windshields for Q. is, Okay. left So now all that’s would made The windshields were of stretched polycarbonate stopped the bird or acrylic coating applied. with a hard not, correct? extensively going 3. Webster about re- A. I'm —I'm not—I'm not can’t testified —I questions you-— Canopies” sults of an Resistant answer those for "Abrasion (ARC Raffo, study coatings expert, study) Appellants’ Bell had John that conducted coatings study poly- identified for concluded in 1994. worked several different coatings prior for and document- carbonate that were available to 1997 windshields discovery coating polycarbo- ed and would well on a Bell’s of a for have worked 0.10-inch issues, protection polycarbonate nate that UV for the Bell 407. addressed the windshield at in- you Although trial that coating so the Bell asserted ply, of the structural —if ply, not in- alternative a it does stallation the safer polycarbonate coat appreciably.” bird- polycarbonate crease the thickness 0.10-inch monolithic not tech- impact resistant windshield was that nei- asserted at trial Although Bell re- because it would nologically feasible safer alternative proposed ther and hun- the addition of “hundreds quire acrylic windshields—a 0.14-inch stretched the Bell pounds of structure to dreds” nor bird-impact resistant windshield windshield, after bird- polycarbonate 0.10-inch monolithic here, Bell in fact did accident issue techno- impact resistant windshield —were polycarbo- monolithic install 0.10-inch they weighed logically too feasible in a nate resistant windshield bird-impact much, testimony and evidence was ad- Absolutely Bell 407. no structural duced neither of safer alternative changes prior were made to Bell 407 are much heavier than design windshields installing polycar- monolithic acrylic 0.10-inch the 0.10-inch as-cast windshield windshield,5 certainly not the Bell 407.4 bonate in the general, prop- expert Gary Thomp- superior According Bell’s mechanical 4. Dr. son, flight the coat- bird-impact erties worthiness of resistant windshield that configuration polycarbonate ed have been weighed placed Bell 222 in 1976 Bell in the demonstrated. twenty-six only eighteen pounds pounds, existing acrylic heavier than the as-cast wind- Webster that once Bell started testified Bell 407. shield in the working they formed the it weight Concerning polycarbonate, polycarbonate bird-impact resistant Bosik, Anthony Appellants’ experts one of two Allan All- in about months. engineer principal in aeronautical Bosik man, engineer a staff who had worked Limited, oper- company Consultants years thirty-eight time Bell for a total of at the trial, bird can- ates the National Research Council install- testified that Bell had non, testified: polycarbonate ed a 0.10-inch monolithic Q. Briefly, let's talk about the different windshield in a Bell 407 and admitted materials, weights changes between the sub- were there no structural to the in the prior polycarbonate This is still—we’re still stance. installation report report prepared for the windshield. [the Army U.S. into evidence was admitted Gailey accident also testified since the 104], would Exhibit What be Plaintiffs’ case, Bell had at issue this manufactured your polycar- response to criticism that polycarbonate Bell 407 with windshield and weightier much and would be bonate is any changes required it had much heavier? helicopter. structure of the not, just slightly A. it is heavier. It is Webster testified: Q. Okay? Q. Well, about, in we’ve heard this case see, 12.7 A. one can versus 13.8. As well, you put a polycarbonate if to a in want Q. And this was known back in at least light got helicopter you've these struc- all really everyone since and has kind of tural Tell me what structural issues. along? all known that changes made in the 407 that were A. Yes. military right flying around now with report prepared Army the U.S. polycarbonate with a windshield in it? following Fisher, contains the abstract: A. Mr. I can’t answer that. Q. impact graphically Bird results demonstrat- You can't? No, polycarbonate provid- prototype ed that the A. sir. Q. resistance, i.e., superior ed resistance you to But with me that do —assume case, speeds up bird knots in that's strikes at to 120 while that's one of the issues this case, incapa- acrylic you put standard windshield been made in this can’t defeating polycarbonate things a the UH-1 in these because it ble of bird strike at [a might It helicopter] cruising speed come out of structure. knots. impact of “hundreds and hundreds of resistant windshields—either addition a of structure.”6 pounds polycarbonate 0.10-inch monolithic wind- acrylic shield a 0.14-inch stretched Feasibility

2. Economic windshield, instead of 0.10-inch as-cast that both Several witnesses testified acrylic possess windshield it did rea- —in windshield polycarbonate monolithic and a vulture probability, sonable would ei- were acrylic stretched windshield economi- ther through have not come windshield in cally prior feasible to 1997.7 liquefied or would have been or broken Either Alternative De- 3. Safer pieces Captain into so that Damian was Signifi- Have sign Windshields Would Polycarbonate not killed.8 is more bird- cantly Reduced the Risk of the Occur- impact acrylic resistant than as-cast be- Question in rence cause it is more flexible and absorbs more energy.9 acrylic Stretched is more bird- equipped

Had the Bell 407 been impact of the safer alternative bird- acrylic either resistant than as-cast be- bird, might stops it ment whole wind- windshield for the Bell 407 could have —if out, going you’re going shield is to come to been approxi- manufactured Sierracin for change $2,000 $3,000. to the whole structure. mately to Raffo testified that necessarily. A. Not acrylic the cost of [the as-cast material used in helicopter's the Bell 407 windshield] Q. is, my point you But is this: And that polycarbonate "roughly are similar in costs.” can’t tell structural “polycarbonate Bosik testified that and as- changes put had to be made the 407 to actylic cast are the same both costs.” Web- it, polycarbonate windshield can although "nothing” ster testified that Bell did you? develop polycarbonate windshield in the changes A. There were no structural made 1976-1994, Bell 407 from "cost was not a trying put to the OH-58D or the 407 decision, factor” in "Especially Bell's polycarbonate in it. windshield something inexpensive polycarbonate as a product.” Concerning changes allegedly 6. structural necessary support to the Bell bird- Wandel, 8. Dr. Warren Bell's accident recon- windshield, impact resistant Allman testified: expert, agreed undisput- struction it that was you If want to be able take this load [a agreed experts ed and that Bell's that had a bird-impact resistant windshield in a Bell polycarbonate 0.10-inch windshield been in you’ve got get back 407] it to the middle. issue, the Bell 407 at the windshield would got energy they You’ve to take all the call — impacted by not have broken when the vul- sheering you you it out. So what do is add ture. weight, a bunch of I which have never my deposition calculated —and as I said “polycarbonate Bosik testified that is able to pounds. hundreds and I hundreds don’t impact, absorb a lot because it is more more weight Any- know the exact and—it’s lot. is, during impact flexible. It deforms more way, you weight take whatever you and is to absorb more put you get therefore able of the it here. And then have to than, energy acrylic.” say, the that so it will bird let's Bosik proof. opined polycarbonate transparencies so it will be bird are Webster intimated the structure substantially impact to bird more resistant up” transparencies; Bell 407 would have to be "beefed if the acrylic than as-cast "for a existing acrylic 0.10-inch as-cast windshield edge polycarbonate gives bolted the situation replaced were with a 0.10-inch monolithic you impact about three the resistance times windshield, polycarbonate but he could not acrylic,” clamped edge as-cast and a situa- say up.” what structure needed to be "beefed tion, impact polycarbonate a the resistance significantly higher. frame is even polycarbonate 7. Raffo testified that a wind- ”[p]olycarbonate early Raffo is shield could have been made as as the testified that the 1970s; polycarbonate replace- impact-resistant plastic polymer a monolithic most that is Bell asserted at trial a heating stretching acrylic Although the cause and polycarbonate monolithic wind- cross-linking molecules to line 0.10-inch causes the prevented the shield would not have occur- impact-resistant results in a more up and because, according rence acrylic question A in 0.10-inch stretched material.10 Bell, pushed significantly re- the windshield would have would have windshield cockpit into ques- through in its frame the the the risk of the occurrence duced tion, acrylic helicopter, Bell based this assertion on and a 0.14-inch stretched testing the could prevented have the vul- non-bird-strike windshield would have flawed and the windshield in- found disbelieved.12 penetrating ture from testing per- that Bell did non-bird-strike tact.11 you with transparencies. And what did conclude re- used in aircraft It's efficient il. spect penetration velocity good impact a at a of either it has resistance because thickness, weight acrylic polycarbonate that the is or thin which means stretched this Polycarbonate particular reduced.” windshields were accident? starting the in the mid-1970s. Basically acrylic used in F-16 A. the in the stretched probably have same thickness could sur- point an impact Raffo testified that ”[f]rom acryl- knot vived test. But stretched [a] view, acrylic the as-cast is least resistant ic material as far as is a feasible as well acrylic Stretched would be die next material. goes. The windshield thickness would have material, strongest polycarbonate and would is, increased a little from what it be bit be the ultimate.” an estimated .14 inches. Q. acrylic they’d only So for stretched published he 11. Bosik testified that in go from .1 to .14? have study impacts on bird on monolithic aircraft thick, polycarbonate A. For a .1 inch velocity windshields where he tested nec- thickness, would which is same increase essary penetrate acrylic, for a bird to as-cast penetration velocity from about or acrylic, polycarbonate and wind- stretched 70 Q. about 200 knots. study His was introduced into evi- shields. material, polycarbonate So for the dence as Plaintiffs’ Exhibit 98. Based on the here far as the thickness that we see conducted, he in the late 1970s Bosik tests windshield, could respect to it—it participated development of a mathe- size? been the same equation penetration predict matical veloc- A. Yes. ity of these materials based on thickness Q. that was at the time And feasible this weight the material and the of the bird helicopter was manufactured? being read fired it. Bosik from a 1976 A. Yes. Army produced report that the U.S. had con- cerning tests it had done on the Bell UH-1 12.Allman, engineers, one of Bell’s staff was provided that it had to Bell happen polycarbonate asked what would if a report 1976. The concluded im- ”[b]ird placed in a Bell a bird windshield pact graphically results demonstrated that the it, polycarbonate hit and the did absorb the provided polycarbonate prototype superi- energy prevent penetrating from bird Army’s resistance.” on the tests in Based He answered: windshield. equation, mathematical Bosik’s polycarbonate 0.10-inch windshield would you put large enough polycarbo- A. If strike have defeated a 120-knot a four- nate window mount it on pound bird. energy that the will structure so bird’s be absorbed, energy past it absorbs is Concerning acrylic whether a stretched point that the can handle structure polycarbonate wind- buckle, it then will will the windshield prob- have in reasonable shield would loose, given break the structure ability prevented approximately four- away underneath the load of wind- pound penetrating vulture wind- from 407, traveling maxi- shield. shield at a Q. buckles and speed way it So windshield structure mum 120 knots in such loose; that fair? Captain and killed Damian or knocked windshield breaks struck unconscious, Yes, A. him Bosik testified: sir. form in preparation litigation for this in- 4. Use of a Design Safer Alternative dropping fifty pounds volved of lead from a Impair Windshield Would Not the Bell square piece crane onto a of 0.10-inch Utility 407’s polycarbonate monolithic mounted in a work, after two months of

wooden frame.13 And even Bell’s non- produced and installed a 0.10-inch testing bird-strike constituted some evi- polycarbonate monolithic windshield in a dence that a polycar- 0.10-inch monolithic Bell 407 for a company Air Logis- called bonate windshield would not have shat- Although tics. Bell asserted at trial that upon impact tered with the 8.5- to 4- to accomplish this feat require would pound vulture —since it did not shatter addition of hundreds and hundreds of upon impact fifty pounds with of lead trav- pounds of structure eling at the to the Bell greater same or alter- velocity as the ing vulture in a dangerous, utility more down- Bell 407 by changing angle ward of attack than the vulture. it from a lightweight Part Q. Now, Okay. jury every attitude; tell the is, test that right be conducted at the run, done, you’ve every equation you’ve ev- flight path same as the aircraft would be.” fired, ery you bird Bell’s or Bell has fired at Additionally, testing Bell’s utilized a wooden polycarbonate a tenth of an inch frame, steel-type rather than the frames used in a 407 structure. in the Bell 407 and also no evidence exists that, A. Mr. Webster my answered mating that the with the wooden box utilized will answer be the same. Is we have not an extra inch required by 1.5 interface as done bird-strike tests. design. Hinds’s Consequently, Bosik con- cluded, "I don't think any validity this test has Q. sir, you agree, So wouldn't that —that whatsoever.” tests, you performed or Bell have no done studies, Gary Thompson Dr. experiments done no testified for Bell that support opinions the bird in you’re giving today this case hit the Bell 407 with pounds the windshield will energy. come out? 2230 foot He said that A. We have done energy no tests on the 407 to amount of is what trying Bell was opinion. replicate testing by dropping fifty pounds square polycarbonate. of lead on a regarding 13. Bosik testified testing Bell’s Thompson Dr. testified: preparation litigation. explained for this He Q. you You're from east Texas. Did ever opinion that to poly- form its that a 0.10-inch lovebugs your hit windshield? carbonate stay windshield would not in the Yes, A. I have. strike, following windshield frame a bird Q. windshield, you your When hit them on polycarbonate square mated a square to a way bug up? which does the shoot Which wood, frame made fifty-pound hoisted a way bug did the happen? starburst of the crane, weight up by lead dropped it on Typically goes up A. with the air flow. polycarbonate. piece poly- framed Q. intact, stay obviously, right? It doesn't stayed carbonate intact pushed but was down not, bugs A. Most will no. through holding the wooden frame it. Bosik Q. bugs partially liquid, Because are explained that the load Bell used to do this right? improper test was because the lead "in no A. Yes. way simulates a bird.... Because the consis- Q. Like a bird? tency of it ap- is not correct.... For a first A. Yes. bird, proximation you of a would assume a Q. liquid pound How much is in that 3.5 liquid, opposed to a solid. aSo bird is vulture? orange apple.” more like an than an Bosik expert, A. I am not a vulture I perform said that Bell did couldn't tell testing you that. impact testing ASTM’sstandards for bird "be- Q. this, they Probably using say, cause a lot more should be a bird than in or a sim- they taped up, ulated bird and that should lead be conducted at sack have duct that, right speed. right In addition to it should there? representative that, be a agree structure and it should yes. A. I would have to 651; Co., City Mix 228 S.W.3d at heavier, Part 29 Concrete less maneuverable

into a Keller, at 807. conclusively estab- helicopter, the evidence that, fact, no Bell made structural lished in prior evidence—that above 407 in order to install changes to the Bell bird-im- Bell manufacture numerous did polycarbonate the 0.10-inch monolithic windshields; that pact resistant Addi- -windshield.14 bird-impact resistant its that solved developed coating Bell Logistics Air tionally, windshields; Bell not inform did problems polycarbonate any expressed Bell and design the concerns Bell was able to that in poly- monolithic wind- bird-impact trial —that the 0.10-inch resistant manufacture European Bell 222 meet resistant windshield shield for the bird-impact carbonate standards; into that Bell successful- push through Bell bird-strike in the 407 would bird- ly polycarbonate a 0.10-inch made in the event of a bird cockpit the Bell 407’s Bell for the impact resistant windshield strike.15 two months after it 407 in 1999 within ultimate- began attempts; its that Bell Application D. of the No-Evidence changes to ly did make structural Review Standard of in order to a 0.10-inch the Bell 407 install short, excluding testi- Hinds’s even wind- polycarbonate bird-impact resistant more of evidence mony, than a scintilla more than shield in a Bell 407—constitutes every jury fact supporting exists techno- of evidence that it was scintilla required question sup- find in 6 to was manu- logically feasible 1997 for Bell to design element port the safer alternative polycarbo- facture a 0.10-inch monolithic defect claim. windshield nate windshield for bird-impact resistant Considering the above evidence fa- all of application existing the Bell 407 de- jury’s vorable to safer alternative knowl- reasonably achievable scientific finding a reasonable factfin- sign because Co., edge. Uniroyal See Goodrich Tire could, disregarding der sometimes (holding 977 S.W.2d at contrary conflicting pro- already the safer competitors using were long-time employees pounded Bell’s design and the fact that and. alternative experts a reasonable factfinder alternative company switched safer could, more a scintilla of evidence design year than after the accident was one jury’s finding that a supporting feasibility); Temple exists Eas- evidence of Tex, Partners, safer windshield existed Inc. v. Old Orchard Creek alternative Ltd., (TexApp.-Dallas Ready Bell for the 407 in 1997. Cent. Q. Webster, '99, know, Allman, you you Gailey, So back in told 14. Recall that 1999, Bell all testified had installed sense to know it[’]s this common polycarbonate wind- 0.10-inch monolithic polycarbonate going if hits a it’s a bird 407; changes in a structural shield and it's to knock it out of structure required prior the instal- the Bell were going potentially dangerous or fatal to to be lation of the windshield. Logistics, it Air pilot. You sent down to it, fly you tell around in didn't had them had, although Allman admitted it, change you about didn’t even them crash, subsequent put polycarbonate to this on the 407 that first wind- the structure windshield Bell 407 that forwarded on a was shield, you? did Logistics, Air to Air Bell had warned Logistics opinion that a bird strike Bell’s Logistics, A. we sent it down to Air When collapse would cause the window structure to it we and are not now that did not sure cockpit. and the to enter the He asked; endangers anyone. then denied) (holding writ that evidence and the seat belt Structure] as standard of a the defen design by evidence, actual use safer is some equipment certainly others at the time of manufacture scintilla, dant or more than a that the combination on the de is admissible issue of defective system jeopardize did not or diminish feasibility). sign strong and is evidence of tractor”). Because, utility of ex- even a scintilla of also ex More than evidence cluding Hinds’s evidence polycarbonate could ists that windshield legally support sufficient to submission early economically have been made as as jury design safer alternative 1970s; expert Bell’s own testified element of windshield design defect not an material as cost was issue with a claim, I would overrule Bell’s issue. second polycarbonate. Because all inexpensive experts agreed, and even Bell’s test of the III. CONCLUSION confirmed, ing that a 0.10-inch monolithic I that the legally would hold evidence is windshield or a 0.14-inch polycarbonate jury sufficient to submission to the acrylic have stretched -windshield would design the safer alternative element of 4-pound 3.5- to black vulture caused the ques- windshield defect claim in bounce or the wind glance either to off of Majority tion 6. Because the holds Opinion shield, windshield, merely crack or otherwise, respectfully I dissent. liquefied penetrate the -windshield in a Majority I concur with the Opinion’s in pieces, form all of which would have disposition of Bell’s other issues and question, the occurrence in prevented Appellants’ issues. a scintilla of exists more than of the that either safer alternative resistant would

bird-impact windshields of the significantly reduced the risk Bryant See v. in question.

occurrence

Giacomini, S.p.A., F.Supp.2d

(N.D.Tex.2005) that defen (recognizing expert’s

dant’s admission that alternative design reduced risk was sufficient allow COMPTROLLER, State of reasonably conclude existence Texas, Appellant, alternative design of safer was economical feasible).

ly technologically Bell’s manufacturing subsequent success Wesley LANDSFELD, Appellee. polycarbonate installing windshield No. 02-10-00271-CV. adding any the Bell without structural weight is more than a Texas, Appeals Court of evidence mono scintilla that a 0.10-inch Fort Worth. polycarbonate bird-impact lithic resistant Aug. not, not, would and in did fact utility jeopardize diminish the Allen v. W.A. Virnau &

Bell 407.

Sons, Inc., (Tex. 28 232-33 denied)

App.-Beaumont pet. (holding documentary

that “the evidence submitted trac

by appellants shows the same model

tor with ROPS Protective [Rollover

Case Details

Case Name: Damian v. Bell Helicopter Textron, Inc.

Court Name: Court of Appeals of Texas

Date Published: Aug 31, 2011

Citation: 352 S.W.3d 124

Docket Number: 02-08-00210-CV

Court Abbreviation: Tex. App.