Opinion

02-08-210-CV

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO. 02-08-00210-CV

LOURDES

MARIA VARGAS DE DAMIAN, APPELLANTS

INDIVIDUALLY,

AS NEXT FRIEND TO AND APPELLEES

NICOLE DENISSE DAMIAN

VARGAS, AND

AS REPRESENTATIVE OF

THE ESTATE

OF DEMETRIO DAMIAN

CHEN, DECEASED;

GUILLERMO JOSE

GASPERI, INDIVIDUALLY

AND AS REPRESENTATIVE

OF THE

ESTATE OF GLORIA

GASPERI, DECEASED;

CARLA GASPERI,

INDIVIDUALLY AND AS

REPRESENTATIVE OF THE

ESTATE OF

GLORIA GASPERI,

DECEASED; ANGELA

CECILIA LASSEN DE

GASPERI, AS LEGAL

AND PERSONAL

REPRESENTATIVE OF

THE ESTATE OF GLORIA

GASPERI;

RICARDO ADOLFO GARAY

BARRIOS;

LORENZO ROMAGOSA

ACRICH; AND

IDA ROMAGOSA DE

ARANJO

V.

BELL

HELICOPTER TEXTRON, INC. APPELLEE

AND APPELLANT

------------

FROM

THE 352ND DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------

I.

Introduction

Appellants [1]

filed this lawsuit against Appellee Bell Helicopter Textron, Inc. [2]

on January 25, 2002, alleging, among other things, strict products liability

and negligence, relating to the crash of a Bell 407 helicopter. The case

proceeded to a jury trial in August 2007, and the jury returned its verdict on

September 17, 2007. The jury found that there was a design defect in the

helicopter; that the negligence of Bell and one of the helicopter pilots,

Captain Damian, caused Appellants =

injuries; that Bell and Captain Damian were each fifty-percent responsible for

causing the accident and resulting injuries; and that Appellants =

damages totaled $294,300. The jury also found that Bell did not act with

malice. The trial court signed the final judgment on February 28, 2008.

All parties appeal from the judgment.

Appellants contend in six issues that the trial court erred by not permitting

equitably-adopted children to assert wrongful death claims, that there is

insufficient evidence of comparative negligence, that the damage awards are against

the great weight and preponderance of the evidence, and that the trial court

should have conducted a hearing and ordered a new trial for alleged juror

misconduct. In its cross-appeal, Bell contends in six issues that all of

Appellants = claims are barred by the Panamanian

statute of limitations, that the trial court should have dismissed the survival

claims by Gloria Gasperi = s estate, that the

design-defect and negligence claims submitted to the jury are preempted by

federal law, and that there is no evidence of design-defects. We affirm in

part and reverse and render in part.

II.

Factual Background

Appellant Lorenzo Romagosa testified

that he is the manager of the purchasing and export department of Café Duran, a

coffee company his family owns in Panama City, Panama. On January 27, 2000,

Lorenzo, his father, and two of his aunts, Ida Rebecca and Gloria Gasperi, flew

on a Bell 407 helicopter from Panama City to conduct business at one of Café

Duran = s

farms in Sona, Panama. Captains Damian and Garay piloted the helicopter.

After the family conducted its business at the company farm, Lorenzo = s

father stayed in Sona, and Captains Damian and Garay, Lorenzo, Ida, and Gloria

boarded the helicopter for the return flight to Panama City. Visibility was

good in the area, and they experienced no problems for most of the flight.

Approximately fifty minutes into the

flight, and only ten minutes from Panama City, Lorenzo heard Captain Garay say,

A birds

ahead. @

Approximately thirty to sixty seconds later, Lorenzo heard Captain Garay say A watch

out @ in

a high tone of voice. Lorenzo testified the helicopter then made an abrupt

maneuver, and he felt the helicopter nose pull up drastically, heard a loud

noise, noticed a lot of wind going through the cabin, and saw a bird pass by

him and hit Gloria in the right shoulder. The helicopter had struck a bird,

which penetrated the windshield and entered into the cabin. Lorenzo testified

he was thinking at that point that the helicopter would crash; both of his

aunts were screaming, and there were a lot of feathers and wind in the cabin.

Lorenzo testified that Captain Garay

called out Captain Damian = s name and then asked him

for help. The bird had hit Captain Damian in the head, and he had slumped over

the helicopter controls; the bird did not hit Captain Garay. Lorenzo unbuckled

his seat belt, moved behind Captain Damian = s

seat, and tried to pull Captain Damian back from the controls so that Captain

Garay could fly the helicopter. Lorenzo testified the helicopter was A going

fast, down @ and Captain Garay was trying to control

the helicopter. Lorenzo testified that just after he pulled Captain Damian

back from the controls, he sat in the seat behind Captain Damian A split

seconds @

before the helicopter crashed into the mountainous terrain. He said that the

helicopter hit the slope and rolled or descended down the hill before stopping.

All of the helicopter = s occupants were injured in

the crash, and Captain Damian = s and Gloria = s

injuries were fatal.

Bobby Ross testified as Appellants =

aircraft accident reconstruction and helicopter pilot expert. He testified

that the crashed helicopter was a Bell 407 and that the helicopter was

manufactured in 1997 and delivered in 1998. Based on his review of the

testimony and physical evidence from the accident, Ross prepared an animation

reflecting his reconstruction of the flight and the crash, and he described the

animation in detail to the jury. Ross testified that the helicopter was flying

at 120 knots forward air speed and at 1,500 feet above sea level just before

colliding with the bird, a black vulture. Ross testified that Captains Damian

and Garay were not negligent, that they did all they could to save the

helicopter and its passengers, and that they did not proximately cause the accident.

Ross testified that the helicopter hit

the terrain tail-first; that the bottom of the helicopter then hit, pushing the

landing gear nineteen inches into the body; that the helicopter slid down the

hill; that the doors came off; but that Gloria was still restrained inside the

helicopter at the time. Ross averred that the helicopter remained upright for

two-thirds of its slide down the hill; that the marks on the wreckage suggest

that it slid on its right side where Captain Damian and Gloria were seated; but

that the right-side door had separated from the helicopter, allowing Gloria to

be partially ejected during the crash sequence.

On cross-examination, Ross acknowledged

that the Bell 407 has excellent visibility and maneuverability and that the as-cast

acrylic windshield on the Bell 407 gets A high

marks @ for

optical clarity. Ross testified that a clear windshield is important, that

windshields are very expensive to replace, and that the down time while waiting

for a windshield replacement is unwanted. Ross said that the Bell 407 is a

Part 27 helicopter, and he agreed that virtually all Part 27 aircraft have

as-cast acrylic windshields like the Bell 407 and that there are no bird-impact

resistance requirements under the Federal Aviation Act (FAA) or the Federal

Aviation Regulations for Part 27 aircraft. Ross also testified that Part 29

helicopters are larger, that federal regulations require Part 29 helicopters to

have 2.2-pound resistant windshields, that the black vulture that hit the Bell

407 weighed significantly more than 3.5 pounds, and that the bird was

significantly larger than even Part 29 helicopters are designed to resist.

Billy Hinds, Appellants =

windshield expert, is an aircraft structural design engineer with more than

thirty years = experience designing aircraft

transparencies. He has designed bird-impact resistant windshields for aircraft

such as the F-111 fighter jet, the F-17 stealth fighter jet, and the B-1

bomber. He testified at trial that the as-cast acrylic windshield in the Bell

407 was unreasonably dangerous and defectively designed because it was not

bird-impact resistant and that the defective design was a proximate and

producing cause of the crash. Hinds testified that a 0.14 inch stretched

acrylic windshield and a 0.1 inch polycarbonate windshield are safer

alternative materials than the as-cast acrylic windshield on the Bell 407 and

that both were technologically and economically feasible at the time the Bell

407 was manufactured in 1997. He also testified that the technology existed in

1997 to properly A mate @

stretched acrylic or polycarbonate windshields to the structure of the

helicopter and resist an impact with a bird.

William Muzzy, Appellants =

seatbelt expert, testified about the restraint system Gloria was wearing at the

time of the crash and how it improperly allowed her to be partially ejected

from the helicopter during the crash sequence. Using the animation of the

crash sequence, Muzzy demonstrated each of the times that Gloria = s

restraint would have locked and then unlocked. Muzzy testified that even

though Gloria still had her seatbelt on, she was partially ejected from the

helicopter during the crash sequence because the locking and unlocking in the

restraint system allowed the seatbelt to continually extend to the point where

it did not restrain her in her seat or even inside the helicopter. He

testified that the restraint system worked as it was designed but that it

should have been designed so that it would not lock and unlock. Muzzy

testified that the restraint system in the Bell 407 was unreasonably dangerous

and that the use of the restraint system in the Bell 407 was negligence. Muzzy

also testified that the MA-16 was a safer alternative design than the restraint

system in the Bell 407 because the MA-16 has an omni-directional sensing

retractor that would not have allowed Gloria = s

seatbelt to unlock during the crash sequence. Muzzy testified that A the

lack of an omni-directional vehicle sensing retractor . . . in the aircraft was

the proximate cause of [Gloria] being ejected and [her] subsequent death. @

III.

Federal Preemption

In its first issue, Bell contends that

the FAA and related federal regulations, through field preemption, impliedly

preempt all common-law claims relating to helicopter design and airworthiness.

Alternatively, Bell contends that federal regulations have impliedly preempted

the field of helicopter windshield design and bird-strike resistance through

conflict preemption.

A. Preemption Law

Federal preemption of state law is grounded

in the Supremacy Clause of the United States Constitution, which provides that A the

Laws of the United States . . . shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding. @

U.S. Const. art. VI, cl. 2; Delta Air Lines, Inc. v. Black , 116 S.W.3d

745, 748 (Tex. 2003); see MCI Sales & Serv., Inc. v. Hinton , 329

S.W.3d 475, 481 (Tex. 2010). Under the Supremacy Clause, if a state law conflicts

with federal law, the state law is preempted and will have no effect. Maryland

v. Louisiana , 451 U.S. 725, 746 , 101 S. Ct. 2114 , 2128 B 29

(1981); Black , 116 S.W.3d at 748 . We presume federal law does not bar

the state = s exercise of its historic police powers

unless Congress clearly expresses the intent to preempt such state action. N.Y.

State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. ,

514 U.S. 645, 655 , 115 S. Ct. 1671, 1676 (1995).

The purpose of Congress is the ultimate

touchstone in every preemption case. Retail Clerks Int’l Ass’n v.

Schermerhorn , 375 U.S. 96, 103 , 84 S. Ct. 219, 223 (1963); Black ,

116 S.W.3d at 748 . We discern congressional intent primarily from the statute = s

language and structure. Medtronic, Inc. v. Lohr , 518 U.S. 470, 486 , 116

S. Ct. 2240 , 2250 B 51 (1996); Black , 116

S.W.3d at 748 . Also relevant is the purpose of the statute as a whole, which

is revealed through A the reviewing court = s

reasoned understanding of the way in which Congress intended the statute and

its surrounding regulatory scheme to affect business, consumers, and the law. @ Medtronic,

Inc. , 518 U.S. at 486 , 116 S. Ct. at 2251 ; Black , 116 S.W.3d at 748 B 49.

A Preemption can take one of

several forms. @ Black , 116 S.W.3d at 748 .

Express preemption occurs when a federal law may expressly preempts a state

law. Id. ; Great Dane Trailers, Inc. v. Estate of Wells , 52

S.W.3d 737, 743 (Tex. 2001). A federal law may also impliedly preempt a state

law A (i)

when the scheme of federal regulation is sufficiently comprehensive to support

a reasonable inference that Congress left no room for supplementary state

regulation or (ii) if the state law actually conflicts with federal

regulations. @ Black , 116 S.W.3d at 748 ; see

Hinton , 329 S.W.3d at 482 . A state law presents an actual conflict when a

party cannot comply with both state and federal regulations, or when the state

law would obstruct Congress = s purposes and objectives. See

Hinton , 329 S.W.3d at 482 ; Black , 116 S.W.3d at 748 . Bell does not

contend that Appellants = claims are expressly

preempted. Thus, we confine our inquiry to the two types of implied

preemption: field preemption and conflict preemption. See Black ,

116 S.W.3d at 748 ; Great Dane Trailers , 52 S.W.3d at 743 .

B. Analysis

1. Field Preemption

Bell first contends that federal law,

through field preemption, impliedly preempts all common-law claims relating to

helicopter design and airworthiness. Appellants counter that although A claims

regarding prices, airspace management, pilot qualifications, and failure to

warn @ are

preempted, courts throughout the country have determined that the FAA and

related federal regulations do not preempt claims against manufacturers for

defective product designs. Neither party cites binding precedent that governs

our analysis. [3]

a. Texas Civil Practice and

Remedies Code Section 82.008

Citing civil practice and remedies code

section 82.008, Bell argues that A Texas = s

public policy position on the preemptive effect of federal safety regulations

is clear @ because

section 82.008 A creates a > rebuttable

presumption = of non-liability for defective design

if the product in question > complied with

mandatory safety standards or regulations adopted and promulgated by the

federal government. = @ See

Tex. Civ. Prac. & Rem. Code Ann. ' 82.008(a)

(West 2009). We disagree for several reasons.

First, the ultimate touchstone in every

preemption case is the intent of Congress, not Texas public policy. Schermerhorn ,

375 U.S. at 103 , 84 S. Ct. at 222 B 23; Black ,

116 S.W.3d at 748 . Second, Appellants filed this lawsuit in 2002 before the

effective date of section 82.008. See Act of June 2, 2003, 78th Leg.,

R.S., ch. 204, ' 5.02, 2003 Tex. Gen. Laws

847 , 861; see also Gen. Motors Corp. v. Burry , 203 S.W.3d 514, 549 (Tex.

App. C Fort

Worth 2006, pet. denied) (noting that section 82.008 applies only to suits

filed on or after July 1, 2003). Third, the rebuttable presumption in section

82.008 arises only after the manufacturer A establishes

that the product = s . . . design complied with

mandatory safety standards or regulations . . . that were applicable to the

product at the time of manufacture and that governed the product risk that

allegedly caused harm. @ Tex. Civ. Prac. & Rem.

Code Ann. ' 82.008(a). But Bell does not point to

any federal statute or regulation setting forth mandatory safety standards

applicable to bird strikes for Part 27 aircraft like the Bell 407 helicopter

involved in this case. Thus, even if section 82.008 applied, Bell has not

established that its design of the Bell 407 complied with applicable mandatory

safety standards or regulations. Therefore, we are not persuaded that section

82.008, a statute enacted after this lawsuit was filed, suggests or requires a

finding that federal law preempts Appellants =

design defect and negligence claims relating to the Bell 407 Helicopter.

b. FAA Certification

Process

Bell also argues that the FAA

certification process is evidence of field preemption. Under the FAA and

applicable regulations, a manufacturer must receive a A type

certificate @ before manufacturing a new aircraft,

indicating the FAA = s approval of an aircraft = s

basic design and ensuring that the design complies with all applicable FAA

regulations. See 49 U.S.C. '

44704(a) (2006); 14 C.F.R. ' 21.21 (2005). The

manufacturer must then obtain a A production

certificate @ indicating the FAA = s

approval of the manufacturing process that will be used to construct the

approved design. See 49 U.S.C. '

44704(c); 14 C.F.R. '' 21.139, .143 (2005).

Finally, the owner of the aircraft must obtain an A airworthiness

certificate @ to prove the aircraft is in a safe

operating condition and conforms to the type certificate before the aircraft

can be put into service. See 49 U.S.C. '

44704(d); 14 C.F.R. ' 21.183.

Bell argues that the A type

certificate @ procedural regulations A illustrate

that the Federal Aviation Administration is intricately involved with the

design of any new aircraft and any modifications to the design. @

However, the court in Monroe v. Cessna Aircraft Co. addressed and

rejected this very argument. See 417 F. Supp. 2d 824, 833 (E.D. Tex.

2006). In doing so, the court stated,

The FAA = s three‑phase

certification process for aircraft does not create a pervasive regulatory

scheme demonstrating an intent by Congress to preempt either the field of

aviation safety or state defective design claims. . . . [T]he regulations

requiring the certification process do not themselves set out safety and design

standards. . . . The regulations that do control the design and safety of an

aircraft are broad and provide a non[-]exhaustive list of minimum requirements

leaving discretion to the manufacturer. For example, the regulations governing

a flight manual = s contents leave room

for A other information

that is necessary for safe operation because of design, operating, or handling

characteristics. @ . . . [And] the

regulation that lists the required contents of an aircraft flight manual has a

non‑exhaustive list. . . . The certification process looks to these

safety and design regulations set out by the FAA but does not in and of itself

constitute a pervasive regulatory scheme evidencing an intent by Congress to

preempt the field of aviation safety.

Id. at 833 (internal citations omitted).

Significantly, Monroe involved a claim for A failing

to design and manufacture the aircraft to reduce potential structural damage

resulting from a bird strike. @ Id. at 826 B 27.

We agree with the Monroe court = s

analysis and hold that the certification process A does

not in and of itself constitute a pervasive regulatory scheme evidencing an

intent by Congress to preempt the field of aviation safety. @ Id.

at 833 .

c. Implied Preemption in

the Fifth Circuit

Bell cites Witty v. Delta Air Lines,

Inc. and argues that A implied preemption is alive

and well in the [Fifth] Circuit. @ See

366 F.3d 380 , 383 B 85 (5th Cir. 2004). Witty

sued Delta in a Louisiana federal district court alleging that he developed

deep vein thrombosis while on a flight from Louisiana to Connecticut. Id.

at 381 . Witty alleged that Delta negligently failed to warn passengers about

the risks of deep vein thrombosis in pressurized cabins and negligently failed

to provide adequate leg room to prevent deep vein thrombosis. Id. at

382 . Delta argued that Witty = s claims were preempted, and

the Fifth Circuit agreed and held that A federal

regulatory requirements for passenger safety warnings and instructions are

exclusive and preempt all state standards and requirements. @ Id.

at 382, 385 . However, the Witty court narrowly limited the application of

its opinion, stating A we note our intent to decide

this case narrowly by addressing the precise issues before us. @ Id.

at 385 . Thus, while implied field preemption may be A alive

and well @ in

the Fifth Circuit as Bell suggests, the Witty opinion itself does not

address whether Appellants = design defect claim

relating to the helicopter = s windshield is preempted.

d. Other Jurisdictions

Citing Abdullah v. American Airlines,

Inc. , 181 F.3d 363 (3rd Cir. 1999), Bell argues that we should hold A that

the FAA impliedly preempts any common-law claims related to helicopter design

and airworthiness. @ In Abdullah , the

Third Circuit addressed whether federal law preempted the plaintiffs’

common-law claims for failing to take reasonable precautions to avoid known turbulent

conditions and failing to give warnings so that the plaintiffs could protect

themselves from the injuries they sustained due to severe turbulence during

flight. Id. at 365 . The court found that A relevant

federal regulations establish complete and thorough safety standards for

interstate and international air transportation that are not subject to

supplementation by, or variation among, jurisdictions. @ Id.

at 367 . Thus, the Abdullah court held that A federal

law establishes the applicable standards of care in the field of air safety,

generally, thus preempting the entire field from state and territorial

regulation. @ Id.

However, cases from the Sixth, Ninth,

and Eleventh Circuits conflict with Abdullah . In each of those cases,

the respective courts held that the FAA did not preempt defective product

claims similar to those asserted by Appellants in this case. See Martin v.

Midwest Express Holdings, Inc. , 555 F.3d 806 , 808 B 12

(9th Cir. 2009) (distinguishing Abdullah and holding plaintiff = s

claims for defective design of aircraft stairs not preempted by FAA); Greene

v. B.F. Goodrich Avionics Sys., Inc. , 409 F.3d 784 , 788 B 89,

791, 794 B 95

(6th Cir. 2005) (citing Abdullah to find FAA preempted failure to warn

claim but applying state law to claim of defectively manufactured navigational

instrument and concluding plaintiff did not offer sufficient evidence of a

manufacturing defect); Pub. Health Trust of Dade Cnty., Fla. v. Lake

Aircraft, Inc. , 992 F.2d 291, 292, 295 (11th Cir. 1993) (holding FAA did not

preempt passenger = s defective seat design

claim). In addition, a federal district court in Texas held that the FAA did

not preempt state-law defective design claims relating to bird-strike safety

standards. See Monroe , 417 F. Supp. 2d at 836 .

Although these cases are not binding

precedent, we find the reasoning from the Sixth, Ninth, and Eleventh Circuits

and the federal district court persuasive. Although the FAA regulates many

aspects of aviation, A [n]either the [FAA] itself,

nor its legislative history evidence an intent by Congress to preempt the

entire field of aviation safety. Instead, the [FAA] and its legislative

history demonstrate an acknowledgment by Congress that state law tort claims

are viable under the [FAA]. @ Id . at 830; see

Martin , 555 F.3d at 809 B 12; Lake Aircraft, Inc. ,

992 F.2d at 295 . We decline to hold that the FAA impliedly preempts the field

of common-law claims related to helicopter design and airworthiness, and we

overrule this part of Bell = s first issue.

2. Conflict Preemption

Bell also contends that federal

regulations have impliedly preempted claims regarding helicopter windshield

design and bird-strike resistance through conflict preemption. Specifically,

Bell argues that because there is a federal regulation requiring Party 29 A transport

category @

helicopters to be A capable of safe flight and

landing after impact by a 2.2 pound bird at certain velocities @ and

A there

is no comparable requirement for > normal =

category helicopters like the [Part 27] Bell 407 at issue in this case, @ the

fact that the Federal Aviation Administration A imposed

a bird-strike standard on one type of helicopter and not another speaks

volumes. @

According to Bell, A short of direct conflict

with an actual regulation, there is no better evidence of > conflict =

preemption. @ Appellants respond that the A failure

to adopt a bird-strike requirement applicable to the [Part 27] Bell 407 cannot

create a basis for conflict preemption. @

Bell cites cases from the United States

Supreme Court, the Fifth Circuit, and the Texas Supreme Court for two

propositions: (1) that a common-law standard that is more stringent than a

federal regulation is preempted if there is evidence that the federal agency

considered and rejected the more stringent standard and (2) that an agency = s A > delicate

balance = of

cost or efficiency versus safety should be respected. @ See

Geier , 529 U.S. at 879 B 81, 120 S. Ct. at 1924 B 25; Carden

v. Gen. Motors Corp. , 509 F.3d 227 , 231 B 32

(5th Cir. 2007); BIC Pen Corp. v. Carter , 251 S.W.3d 500 , 506 B 07 (Tex.

2008). However, Bell does not point to any evidence that the Federal Aviation

Administration considered minimum standards for bird-strike resistance on Part

27 aircraft like the Bell 407 at issue in this case. Instead, Bell points only

to evidence that the Federal Aviation Administration considered bird-strike

safety proposals relating to Part 29 A transport @

aircraft. Without evidence that the Federal Aviation Administration considered

and rejected minimum bird-strike standards in Part 27 aircraft like the Bell

407, Bell has not met its A difficult burden of

overcoming the presumption against preemption. @ Great

Dane Trailers , 52 S.W.3d at 743 (citing Silkwood v. Kerr-McGee Corp. ,

464 U.S. 238, 255 , 104 S. Ct. 615, 625 (1984)). To borrow the Monroe court = s

language discussing field preemption, A If

anything, the specific lack of bird strike regulations related to the [aircraft

at issue] demonstrates the absence of a pervasive regulatory scheme and leaves

room for state law claims on the issue. @ 417

F. Supp.2d at 834 .

Because there are no federal statutes or

regulations governing the minimum standards for bird-strike resistance in Part

27 helicopters like the Bell 407, we cannot conclude that Texas = s

common-law design defect cause of action makes it impossible for Bell to comply

with both state and federal requirements or that the cause of action is an

obstacle to the purposes and objectives of Congress. See Sprietsma v.

Mercury Marine , 537 U.S. 51 , 65 B 68,

123 S. Ct. 518 , 527 B 29 (2002) (holding there was

no conflict preemption even where the Coast Guard had decided not to adopt a

regulation requiring propeller guards on motor boats). We hold that Appellants =

common-law design defect claims relating to the Part 27 Bell 407 helicopter do

not conflict with federal regulations concerning helicopter windshield design

and bird-strike resistance. We overrule the remainder of Bell = s

first issue.

IV.

Panamanian Statute of Limitations

Bell contends in its sixth issue that

because the accident occurred on January 27, 2000, and Appellants did not file

this lawsuit until January 25, 2002, all of Appellants =

claims are barred by the one-year Panamanian statute of limitations for

negligence actions. Because Bell = s

sixth issue requires an interpretation of the Panamanian statute of

limitations, we apply a de novo standard of review. See Lal v. Harris

Methodist Fort Worth , 230 S.W.3d 468, 471 (Tex. App. C Fort

Worth 2007, no pet.).

Under civil practice and remedies code

section 71.031, foreign plaintiffs must commence their suits both within the

time provided by Texas law and A within the time provided by

the laws of the foreign state . . . in which the wrongful act, neglect, or

default took place. @ Tex. Civ. Prac. & Rem.

Code Ann. ' 71.031(a)(2), (3) (West 2005); see

Owens Corning v. Carter , 997 S.W.2d 560, 571 (Tex. 1999). A Thus,

a foreign plaintiff whose cause of action for personal injury or wrongful death

arose in a foreign state with a shorter limitations period than Texas = s

must file within the limitations period prescribed by that state = s

law. @ Owens

Corning , 997 S.W.2d at 571 B 72.

The parties do not dispute that article

1706 of the Panamanian Civil Code sets forth the Panamanian statute of

limitations governing negligence actions, nor do they seriously dispute the

language of article 1706. [4]

According to Bell = s A Notice

Regarding Panama Law, @ article 1706 states:

The civil action

seeking damages for slander or libel or civil liability derived from fault or

negligence under article 1644 of the Civil Code, prescribes [that suit be filed

within] a period of one year running from the time the claimant learned of the

loss.

If

a criminal or administrative action for the facts described in the above

paragraph is timely filed, the prescription of the civil action starts to run

from the sentencing of the criminal or administrative action, as the case may

be. [5]

Bell contends that because Appellants did not file suit

within one year of the accident, Appellants =

claims are barred by the statute of limitations. However, Appellants presented

evidence of a criminal investigation that began on January 27, 2000, the day of

the accident, and that ended in May 2002, several months after Appellants filed

this lawsuit. Thus, under the plain language of article 1706, Appellants filed

this lawsuit within the statute of limitations as set forth in the Panamanian

Civil Code. We overrule Bell = s sixth issue.

V.

Wrongful Death and Survival Claims

A. Equitably Adopted Children

In their sixth issue, Appellants contend

that the trial court erred by granting a partial summary judgment that Carla

and Guillermo Gasperi, Gloria Gasperi = s

alleged equitably-adopted children, lacked standing to bring a wrongful death

claim. Appellants do not contend that Gloria legally adopted Carla or

Guillermo. [6]

A An action to recover damages

[under the wrongful death statute] is for the exclusive benefit of the

surviving spouse, children, and parents of the deceased. @

Tex. Civ. Prac. & Rem. Code Ann. '

71.004(a) (West 2005). In Goss v. Franz , the Amarillo court of appeals

held that an alleged equitably-adopted child was not entitled to bring a

wrongful death action. See 287 S.W.2d 289, 290 (Tex. Civ. App. C Amarillo

1956, writ ref = d). And in Robinson v. Chiarello ,

this court held that the appellants, who were A neither

the natural parents nor legal adoptive parents @ of

the deceased, were barred as a matter of law from recovery under the wrongful

death statute. 806 S.W.2d 304 , 310 B 11

(Tex. App. C Fort Worth 1991, writ denied).

Appellants argue that the Texas Supreme

Court A has

not yet ruled on whether an equitably adopted child has standing to bring a

claim under @ the Wrongful Death Act, and they ask us

to revisit our holding in Robinson . See id. at 310 B 11.

We disagree with Appellants = contention that the supreme

court has not yet addressed this issue, and we decline to accept Appellants = invitation

to revisit precedent.

Goss , decided by the

Amarillo Court of Appeals in 1956, is a A writ

refused @

case. See 287 S.W.2d at 290 . A Writ

refused @

cases decided after 1927 have A > equal

precedential value with the Texas Supreme Court = s

own opinions. = @ Hyundai Motor Co. v.

Vasquez , 189 S.W.3d 743 , 754 n.52 (Tex. 2006) (quoting The Greenbook:

Texas Rules of Form (Tex. Law Review Ass’n, 10th ed. 2005)); see also Yancy

v. United Surgical Partners Int = l,

Inc. ,

236 S.W.3d 778 , 786 n.6 (Tex. 2007) (recognizing A writ

refused @

case A has

the weight of our own precedent @ ). Thus, by refusing the

writ in Goss , the supreme court essentially addressed the very issue

Appellants present in this appeal. Therefore, Goss = s

holding that an equitably-adopted child may not bring a wrongful death claim is

binding precedent that we as an intermediate appellate court are obligated to

follow. See Lubbock Cnty., Tex. v. Trammel = s

Lubbock Bail Bonds , 80 S.W.3d 580, 585 (Tex. 2002) ( A It

is not the function of a court of appeals to abrogate or modify established

precedent. @ ). Because binding precedent holds

contrary to Appellants = contention that Carla and

Guillermo should have been permitted to bring wrongful death claims as Gloria = s

equitably-adopted children, we overrule Appellants =

sixth issue.

B. Survival Claims on Behalf of Gloria = s

Estate

In its third issue, Bell contends that

the representatives of Gloria = s estate lacked capacity to

bring a survival claim on behalf of the estate and that the survival claim is

barred by the statute of limitations. Appellants respond that Bell failed to

preserve its capacity challenge by not objecting to the jury charge and that

the survival claim is not time-barred because Carla = s

post-limitations appointment as administratrix of Gloria = s

estate related back to Appellants = pre-limitations

original petition.

1. Applicable Facts

Appellants filed this lawsuit on January

25, 2002, and Carla alleged in the original petition that she was a legal

representative of Gloria = s estate. [7]

Bell filed a motion for summary judgment in April 2006, contending that the

survival claim brought on behalf of Gloria = s

estate should be dismissed because Carla did not have standing to assert it.

The trial court initially took the issue under advisement but granted the

motion for summary judgment after Bell filed a motion A re-urging @

summary judgment on the survival claim. On August 8, 2007, Appellants filed a

motion for reconsideration, and Carla filed an application in Tarrant County

Probate Court to be appointed as the administrator of Gloria = s

estate. And on August 10, 2007, Appellants filed an amended petition that

alleged Carla was a representative of Gloria = s

estate and that added Angela Lassen as a plaintiff as legal and personal

representative of Gloria = s estate. On August 19,

2007, the trial court granted Appellants =

motion to reconsider the dismissal of the survival claim. On September 24,

2007, a week after the jury = s verdict but before the

trial court signed the judgment in this case, the Tarrant County Probate Court

appointed Carla as administratrix of Gloria = s

estate.

2. Challenge to Capacity Not Preserved

Citing Bossier Chrysler Dodge II,

Inc. v. Rauschenberg , Appellants argue that Bell did not preserve its

challenge to the capacity of an estate representative because Bell did not

object on capacity grounds to the jury charge questions concerning Gloria = s

estate. [8]

See 201 S.W.3d 787 , 798 B 99 (Tex. App. C Waco

2006, pet. granted), rev = d in

part on other grounds , 238 S.W.3d 376 (Tex. 2007). Bell does not

dispute that it failed to object to the charge on capacity grounds but contends

that capacity was a question of law that it preserved through its motion for

judgment notwithstanding the verdict (JNOV). [9]

Thus, we must determine whether Bell = s

challenge to capacity should have been raised through an objection to the jury

charge or if it could be timely asserted for the first time in a post-verdict

motion such as a motion for JNOV.

To preserve a no evidence or matter of

law point for appeal, a party must raise the complaint through a motion for

directed verdict, a motion for JNOV, an objection to the submission of the

question to the jury, a motion to disregard the jury = s

answer to a vital fact question, or a motion for new trial. See United

Parcel Serv., Inc. v. Tasdemiroglu , 25 S.W.3d 914, 916 (Tex. App. C Houston

[14th Dist.] 2000, pet. denied) (citing Cecil v. Smith , 804 S.W.2d 509 ,

510 B 11

(Tex.1991)). But many legal rulings require timely objections before

submission to the jury to preserve error for appeal. See id. at 916 B 17

(listing examples). And unlike standing, a challenge to a party = s

capacity can be waived if not properly challenged in the trial court. See,

e.g. , Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 849 (Tex.

2005) ( A [A]

challenge to a party = s capacity must be raised by

a verified pleading in the trial court. @ ).

In Osterberg v. Peca , the supreme

court stated that A if the trial court has > to

resolve a legal issue before the jury could properly perform its fact‑finding

role, . . . a party must lodge an objection in time for the

trial court to make an appropriate ruling without having to order a new trial. = @ 12

S.W.3d 31, 55 (Tex. 2000) (quoting Holland v. Wal-Mart Stores, Inc. , 1

S.W.3d 91, 94 (Tex. 1999), and holding parties failed to preserve argument that

they substantially complied with election code section 254.124 because they did

not object to the jury charge). Relying in part on Osterberg , the court

in Bossier Chrysler Dodge explained a defendant = s

obligations to preserve error when challenging the plaintiff = s

capacity:

[I]f a verified

denial is filed, the issue of the plaintiff = s capacity to sue is controverted, and the

plaintiff bears the burden of proving at trial that he is entitled to recover

in the capacity in which he has filed suit. As the party with the burden of

proof then, it is incumbent upon the plaintiff to obtain a jury finding on this

particular issue.

If,

however, the trial court submits a question assuming the capacity originally

pleaded . . . and the defendant does not object to the question, then the

defendant is bound by that charge on appeal. Conversely, if the defendant does

object, then the defendant will either obtain the sought‑after jury

finding or have an adverse ruling which can be reviewed on appeal.

201 S.W.3d at 798 (citing Osterberg , 12 S.W.3d at

55 and O = Connor v. Miller ,

127 S.W.3d 249, 254 (Tex. App. C Waco 2003, pet. denied)).

The Bossier Chrysler Dodge court held that although the defendant

properly controverted the plaintiff = s

capacity through a verified denial, the defendant did not preserve its capacity

argument because it did not object to the jury charge. Id. at 798–99.

And even though the defendant challenged the plaintiff = s

capacity in a motion for new trial, the court held that the challenge to the

plaintiff = s capacity through the motion for new

trial A was

not made in a timely fashion. @ Id. at 798.

Here, the jury charge included questions

that assumed the capacity of the representative of Gloria = s

estate, and Bell did not object to the absence of any questions, definitions,

or instructions on the issue of capacity. [10]

Had Bell objected to the charge on capacity grounds, the trial court might have

chosen to submit a question, definition, or instruction to the jury concerning

capacity, thus permitting the jury to perform its fact-finding role on the

controverted issue of capacity. See Osterberg , 12 S.W.3d at 55 ; Clark

v. Trailways, Inc. , 774 S.W.2d 644, 647 (Tex. 1989) ( A By

failing to object . . . parties . . . effectively deny a trial court the

opportunity to review and correct a prior finding. @ ).

By not objecting, Bell deprived the trial court of an opportunity to correct

the alleged error relating to capacity. Thus, we hold that Bell failed to

preserve for appellate review its challenge to the capacity of the

representatives of Gloria = s estate. We overrule this

part of Bell = s third issue.

3. Survival Claim Not Barred by Statute

of Limitations

In the remainder of its third issue,

Bell contends that the survival claim asserted on behalf of Gloria = s

estate is barred by the statute of limitations. Specifically, Bell contends

that Carla = s appointment as estate representative

did not relate back to the original petition and that Angela did not join the

lawsuit until seven years after the accident, meaning all claims on behalf of

Gloria = s

estate are time-barred. Appellants respond that the claims on behalf of Gloria = s

estate are timely because Carla = s post-limitations

appointment as administratrix of Gloria = s

estate related back to the pre-limitations original petition.

In Lovato , the supreme court held

that when a plaintiff = s timely-filed original

petition alleges her representative status to bring a survival claim and she

acquires capacity to maintain the survival claim after the expiration of the

statute of limitations, the A post-limitations capacity

cures her pre-limitations lack thereof. @ 171

S.W.3d at 852 B 53. The court stated that A [g]enerally,

cases involving post-limitations representative capacity involve an amended

pleading alleging that capacity for the first time , @ but

said that Lovato = s A case

is somewhat unusual, however, because Lovato has alleged representative status

on behalf of the estate in every petition filed with the trial court. @ Id .

at 852 (emphasis in original). The court noted that Lovato = s

original assertion of representative status, A though

apparently untrue, asserted that Lovato was bringing suit in her capacity as

the estate = s representative. @ Id.

Deferring to the trial court on the issue of the reasonable inquiry made before

filing the original petition, the court stated that A [t]he

estate commenced the suit before limitations expired @ and

that A Lovato

cured the defect in her capacity before the case was dismissed. @ Id.

at 853 . Therefore, the post-limitations acquisition of capacity cured the

pre-limitations lack of capacity, and the statute of limitations did not bar

the survival claim. Id.

Bell argues that Lovato is

distinguishable because Lovato was actually an heir of the estate at the time

of filing the original petition. We disagree. The supreme court specifically

noted that Lovato = s status as an heir of her

mother = s

estate was in dispute. Id. at 848, 851 . And the same day the supreme

court decided Lovato , it held in Lorentz v. Dunn that the

survival claim was not time-barred because the plaintiff, who was not an heir

and did not have capacity to represent the estate at the time of filing the

original petition, cured her pre-limitations lack of capacity through her

post-limitations appointment as administrator of the estate. [11]

171 S.W.3d 854, 856 (Tex. 2005) (relying on Lovato , 171 S.W.3d at 850 ).

Thus, we do not agree that Carla = s

alleged lack of status as an heir of Gloria = s

estate distinguishes Lovato from the present case. See Lorentz ,

171 S.W.3d at 856 ; Lovato , 171 S.W.3d at 850 .

We also disagree with Bell = s

assertion that Lovato is distinguishable because Carla A did

not show due diligence in waiting five years to attempt to gain capacity @

while Lovato A applied to become administrator just two

months after filing the survival claim and within the statute of limitations,

so the court held that her change of status was applied for and completed

within a reasonable time . @ [Emphasis added.] There is

no holding in Lovato that Lovato = s

appointment as administrator was A completed

within a reasonable time. @ Instead, the supreme court

stated, A If,

as we have held, a plaintiff = s amended pleading alleging

representative capacity satisfies the relation-back requirements, an original

petition that alleges the correct capacity should suffice for limitations

purposes, provided that capacity, if challenged, is established within a

reasonable time. @ Lovato , 171 S.W.3d

at 853 . And the footnote to that sentence states, A The

burden is on the defendant to challenge capacity via verified plea, and the

trial court should abate the case and give the plaintiff a reasonable time

to cure any defect . @ Id. at 853 n.7

(emphasis added). Thus, the supreme court = s

reference to A a reasonable time @

relates to the proper procedure following a timely plea in abatement and does

not state that a plaintiff = s ability to cure its

pre-limitations lack of capacity is contingent upon seeking capacity within a

reasonable time of filing the original petition. [12]

See id. at 853 & n.7. Indeed, Lovato was not appointed

administrator until eighteen months after the expiration of the statute of

limitations. Id. at 847, 852 . Bell = s

attempt to distinguish Lovato is unpersuasive.

Bell also relies on Covington v.

Sisters of Charity of the Incarnate Word . See 179 S.W.3d 583 (Tex.

App. C Amarillo

2005, pet. denied). There, the decedent = s

daughter, Patricia Covington, was appointed administrator of the estate. Id.

at 584 . Later, and within the statute of limitations, the decedent = s

sister, Elizabeth Roberts, filed a medical malpractice claim. Id.

After the defendants challenged Roberts = s

standing and capacity to act on behalf of her sister = s

estate, Roberts filed an amended petition that added Covington as a plaintiff,

alleging that Covington was the administrator of the estate. Id. at

585 . Affirming the trial court = s summary judgment in favor

of the defendants, the Covington court distinguished Lovato

because Roberts was not an heir or personal representative of the estate and

never pleaded or contended that she was an heir or personal representative of

the estate. Id. at 587. The court further noted that the relation-back

statute A does

not directly address the filing of a subsequent pleading that adds a new

plaintiff @ and that A [o]rdinarily,

an amended pleading adding a new party does not relate back to the original

pleading. @ Id. at 588; see Tex.

Civ. Prac. & Rem. Code Ann. ' 16.068

(West 2005). The court held that because Covington was the administrator of

the estate, Roberts did not have the capacity to bring a survival claim on

behalf of the estate, and the post-limitations petition that added Covington as

a party for the first time did not relate back to Roberts = s

pre-limitations petition. Covington , 179 S.W.3d at 587 B 88.

Unlike Covington , Carla filed

this lawsuit within the limitations period, alleged that she was a

representative of Gloria = s estate, and subsequently

acquired capacity to prosecute survival claims on behalf of Gloria = s

estate. [13]

Thus, Carla = s post-limitations acquisition of

capacity cured her alleged pre-limitations lack of capacity, and the survival

claim on behalf of Gloria = s estate is not barred by

the statute of limitations. See Lorentz , 171 S.W.3d at 856 ; Lovato ,

171 S.W.3d at 852 B 53. [14]

And because Carla = s post-limitations capacity

cured her alleged pre-limitations lack of capacity, we need not decide whether

Angela = s

intervention as a plaintiff in August 2007 related back to Carla = s

original petition or whether Carla had pre-limitations capacity to bring the

survival claim as Gloria = s alleged equitably-adopted

daughter. See Tex. R. App. P. 47.1 (requiring appellate court to

address A every

issue raised and necessary to final disposition of the appeal @ ).

We overrule the remainder of Bell = s

third issue.

VI.

Design Defects

Bell contends in its second, fourth, and

fifth issues that, because Appellants =

expert witnesses lacked necessary qualifications and their testimony was

unreliable, conclusory, or speculative, there is no evidence to support the

jury = s

design defect findings. [15]

Specifically, Bell argues that there is no evidence that the helicopter

windshield or door mounts were defectively designed, that there is no evidence

that safer alternative designs were feasible for the windshield or door mounts,

and that there is A no evidence that [Appellants = ]

proposed alternative restraint system was available for use on civilian

helicopters and no evidence that it would have prevented Gloria Gasperi = s

injuries. @

A. Applicable Law

To recover on their products liability

claim alleging a design defect, Appellants were required to prove by a

preponderance of the evidence that A (1)

the product was defectively designed so as to render it unreasonably dangerous;

(2) a safer alternative design existed; and (3) the defect was a producing

cause of the injury for which the plaintiff seeks recovery. @ Timpte

Indus., Inc. v. Gish , 286 S.W.3d 306, 311 (Tex. 2009); see Hernandez

v. Tokai Corp. , 2 S.W.3d 251 , 255–56 (Tex. 1999); Burry , 203 S.W.3d

at 529 ; see also Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(a)

(West 2011). A A safer alternative design @ is:

a product design

other than the one actually used that in reasonable probability:

(1) would have

prevented or significantly reduced the risk of the claimant = s personal injury,

property damage, or death without substantially impairing the product = s utility; and

(2) was economically

and technologically feasible at the time the product left the control of the

manufacturer or seller by the application of existing or reasonably achievable

scientific knowledge.

Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b).

B. Expert Testimony and Standard of Review

If an expert = s

testimony would assist the factfinder in understanding the evidence or

determining a fact issue, that expert may testify on scientific, technical, or

other specialized subjects. Tex. R. Evid. 702; Mack Trucks, Inc. v. Tamez ,

206 S.W.3d 572, 578 (Tex. 2006). Under Rule 702, the proponent of the expert = s

testimony has the burden to establish that the expert is qualified to render an

opinion on the subject matter. Tex. R. Evid. 702; E.I. duPont de Nemours

& Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995). Whether a witness

is qualified is a matter of judicial discretion, and the trial court = s

determination on that issue will not be disturbed on appeal absent a clear

abuse of that discretion. Robinson , 923 S.W.2d at 558 ; see Broders

v. Heise , 924 S.W.2d 148, 151 (Tex. 1996). A trial court does not abuse

its discretion merely because a reviewing court in the same circumstances would

have ruled differently. Robinson , 923 S.W.2d at 558 ; Downer v.

Aquamarine Operators, Inc ., 701 S.W.2d 238, 242 (Tex. 1985), cert.

denied , 476 U.S. 1159 (1986). The trial court abuses its discretion if its

decision was arbitrary or unreasonable without reference to guiding rules and

principles. Downer , 701 S.W.2d at 241 B 42.

A [E]ach material part of an

expert = s

theory must be reliable. @ Whirlpool Corp. v.

Camacho , 298 S.W.3d 631, 637 (Tex. 2009). When expert testimony is

involved, courts are to A rigorously examine @

both the validity of the facts and assumptions on which the testimony is based

and A the

manner in which the principles and methodologies are applied by the expert to

reach the conclusions. @ Id. (citing Exxon

Pipeline Co. v. Zwahr , 88 S.W.3d 623, 629 (Tex. 2002)). In doing so, we

consider the expert = s experience and the factors

set forth by the supreme court in Robinson . Id. at 638 (citing Gammill

v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 720 (Tex. 1998)); see

Robinson , 923 S.W.2d at 557 . [16]

A [I]n

very few cases will the evidence be such that the trial court = s

reliability determination can properly be based only on the experience of a

qualified expert to the exclusion of factors such as those set out in Robinson . @ Whirlpool ,

298 S.W.3d at 638 (citing Mack Trucks , 206 S.W.3d at 579 and Gammill ,

972 S.W.2d at 726 ).

Although a trial court = s

ruling on the reliability of an expert = s

opinion testimony is generally reviewed for an abuse of discretion, a party may

assert on appeal, as Bell does in this case, that the unreliability of an

expert = s

opinion makes it legally insufficient to support the verdict. Id. A [I]n

a no-evidence review[,] we independently consider whether the evidence at trial

would enable reasonable and fair-minded jurors to reach the verdict. @ Id.

(citing City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005)).

This review A encompasses the entire record, including

contrary evidence tending to show the expert opinion is incompetent or

unreliable. @ Id. ; see also Cooper Tire

& Rubber Co. v. Mendez , 204 S.W.3d 797, 804 (Tex. 2006) ( A [W]e

may consider the testimony of the[] opposing experts because > an

appellate court conducting a no‑evidence review cannot consider only an

expert = s

bare opinion, but must also consider contrary evidence showing it has no

scientific basis. = @ )

(quoting City of Keller , 168 S.W.3d at 813 ).

C. Helicopter Windshield

Bell argues in part of its second issue

that there is no evidence of a safer alternative design for the helicopter

windshield because the opinion testimony by Appellants =

expert, Billy Hinds, was insufficient as a matter of law. Specifically, Bell

argues that Hinds lacked the necessary qualifications to testify about safer

alternative designs because he has no experience designing helicopter

structures and only limited experience with windshields on much larger

helicopters, that his testimony is not based on sound engineering principles,

and that his testimony is conclusory and speculative.

1. Preservation of Error

Appellants argue that Bell waived its

challenge to the reliability of Hinds = s

testimony. A To preserve a complaint that an expert = s

testimony is unreliable, a party must object to the testimony before trial or

when it is offered. @ Guadalupe‑Blanco

River Auth. v. Kraft , 77 S.W.3d 805, 807 (Tex. 2002); see Mar.

Overseas Corp. v. Ellis , 971 S.W.2d 402, 409 (Tex. 1998). Bell filed a

pretrial motion to strike Hinds = s testimony that the trial

court denied. In the pretrial motion, Bell invoked the Robinson factors

and the Gammill analytical gap standard and argued that Hinds = s

testimony A is inherently unreliable and mere

speculation. @ Bell = s

pretrial motion to strike Hinds = s testimony preserved its

challenge to the reliability of Hinds = s

testimony. See Kraft , 77 S.W.3d at 807 ; Ellis , 971 S.W.2d at

409 ; see also City of Sugar Land v. Home & Hearth Sugarland, L.P. ,

215 S.W.3d 503 , 511 n.4 (Tex. App. C Eastland

2007, pet. denied) (holding pretrial motion to exclude preserved appellate

complaint concerning reliability of expert testimony). Further, Bell objected

at trial to Hinds = s qualifications to testify

about the structure of the Bell 407. Finally, to the extent Bell contends that

Hinds = s

testimony is speculative or conclusory on its face, no trial objection was

required. See Coastal Transp. Co., v. Crown Cent. Petrol. Corp. , 136

S.W.3d 227, 233 (Tex. 2004). We therefore hold that Bell preserved its

challenges to Hinds = s qualifications and the

reliability of his testimony.

2. Hinds = s

Testimony

Hinds is an expert in bird-impact

transparency design for aircraft. He has extensive experience designing

transparencies for airplanes, but he has no experience with light helicopters

and limited experience with helicopters generally. Specifically, Hinds has not

been trained and has not performed work on the structural design of

helicopters, has never designed how the structural frame of a helicopter (or

any other aircraft) would accept a windshield or frame, has only designed

transparencies for two large helicopters (the S-92 and the RAH-66), and has not

done any work with light helicopters similar to the Bell 407.

a. Materials

Hinds testified that the as-cast acrylic

used for the windshield in the Bell 407 was unreasonably dangerous and

defectively designed because it was not bird-impact resistant. He also

testified that stretched acrylic and polycarbonate are safer materials and that

the technology existed in 1997 to properly mate (or attach) a 0.14 inch

stretched acrylic or 0.1 inch polycarbonate windshield to the structure of the

helicopter in order to resist an impact with a bird.

b. A Mating @ the

Windshield to the Helicopter

Hinds testified that the mounting

structure of the Bell 407 would need to be modified in order to mate a

stretched acrylic or polycarbonate windshield to the helicopter and make it

bird resistant. Concerning the modifications necessary for a 0.14 inch

stretched acrylic windshield, Hinds testified that A [s]tretched

acrylic has basically the same structure characteristics as the as-cast

acrylic, and there probably wouldn = t

have had to be much change to the structure at all because of that. @

For a polycarbonate windshield, Hinds averred that because of the deflection in

the polycarbonate windshield following a bird-strike, the portion of the

helicopter frame that overlaps the windshield would have to be extended

approximately 1.5 inches to keep the windshield retained in the structure. But

Hinds acknowledged that he did not know if the helicopter structure would

support a polycarbonate windshield in the event of a bird strike. He testified

that the 1.5 inch change to the mating structure is an A approximation, @

that it is his A initial suggestion, @

that he A wasn = t

designing a window for Bell Helicopter, @ and

that A without

actually bird testing it and seeing how the edges perform in the actual bird

testing, you don = t really know for sure if

the design is right. @

3. Legal Sufficiency of Hinds = s

Opinion Testimony

Crucial to Hinds = s

safer alternative design opinions is his suggestion that either the 0.14 inch stretched

acrylic or the 0.1 inch polycarbonate windshield could be successfully mated to

the Bell 407 C and retained to the helicopter in the

event of a bird strike C by adding approximately 1.5

inches to the bonding area around the window frame. Two of Appellants =

other experts, Anthony Bosik and John Raffo, agreed that an alternative design

is not safer if it detaches from the helicopter following an impact, and Hinds

agreed that it does not matter what material is used for the windshield if it

does not prevent a bird from incapacitating the pilot. In other words, neither

the stretched acrylic nor the polycarbonate design is safer than the as-cast

acrylic design if they dislodge from the helicopter on impact with a bird. See

Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(1)

(providing that alternative design must have A prevented

or significantly reduced the risk @ of

the injury). Hinds agreed that in the event of a bird strike, there must be

sufficient retention in the area where the windshield is bonded to the frame so

that the bonding area is not overloaded by the deflection of the windshield

caused by the impact. But Hinds never explained why his proposed addition of

approximately 1.5 inches to the mating structure would be sufficient to retain

a 0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield on the

helicopter in the event of a bird strike.

Concerning the frame alterations

necessary to accommodate a 0.14 inch stretched acrylic windshield, Hinds

testified that A there probably wouldn = t

have had to be much change to the structure, @ but

he never explained the basis of his opinion. Other than saying that A [s]tretched

acrylic has basically the same structure characteristics as the as-cast

acrylic, @

Hinds did not say what, if any, structural changes are necessary, and if no

changes are needed, he did not explain why none are needed. For a 0.1 inch

polycarbonate windshield, Hinds testified that the overlap for the bonding area

would need to be extended by approximately 1.5 inches because of the deflection

rate of the polycarbonate, but he again failed to explain the basis of his

opinion. For example, Hinds did not conduct or cite to any publications,

engineering studies, or other analyses of the rigidity or deflection rates of a

0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield as compared to

the rigidity or deflection rates of the as-cast acrylic in the Bell 407 that

support his opinion.

A Expert opinions must be

supported by facts in evidence, not conjecture. @ Marathon

Corp. v. Pitzner , 106 S.W.3d 724, 729 (Tex. 2003) (citing Burroughs

Wellcome Co. v. Crye , 907 S.W.2d 497 , 499 B 500

(Tex. 1995)). An expert = s simple ipse dixit is

insufficient to establish a matter; rather, the expert must explain the basis

of his statements to link his conclusions to the facts. See City of San

Antonio v. Pollock , 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v.

Arce , 997 S.W.2d 229, 235 (Tex. 1999)); Earle v. Ratliff , 998 S.W.2d

882, 890 (Tex. 1999). A [I]f no basis for the

opinion is offered, or the basis offered provides no support, the opinion is

merely a conclusory statement and cannot be considered probative evidence. @ Pollock ,

284 S.W.3d at 818 ; cf. Burry , 203 S.W.3d at 534 B 35 (holding

that expert sufficiently explained how the proposed alternative safer design

would function).

Assuming Hinds was qualified as an

expert to testify regarding an alternative safer helicopter windshield design

absent any training or experience in helicopter design, his testimony

concerning the necessary changes to mate a 0.14 inch stretched acrylic or 0.1

inch polycarbonate windshield to the Bell 407 and resist a bird impact is

conclusory, speculative, and no evidence that a 0.14 inch stretched acrylic or

0.1 inch polycarbonate windshield is a safer alternative design than the

as-cast acrylic windshield on the Bell 407. [17]

See Tex. Civ. Prac. & Rem. Code Ann. '

82.005(b); Pollock , 284 S.W.3d at 818 ; Earle , 998 S.W.2d at 890 .

The conclusory and speculative nature of

Hinds = s

testimony is illustrated by the testimony of other experts in the case and

other parts of Hinds = s testimony. See

Whirlpool , 298 S.W.3d at 640 B 42

(considering evidence rebutting expert = s

opinion as evidence that A highlights the extent to

which [the expert = s] theory was subject to

testing and examining for reliability @ ); Cooper

Tire , 204 S.W.3d at 803 B 04 (considering testimony of

opposing experts when reviewing scientific basis for expert = s

testimony); Kraft , 77 S.W.3d at 806 B 07

(considering expert = s testimony during voir dire

in analyzing reliability of the expert = s

opinion). All engineering experts who testified, even Hinds, agreed that

designing the entire helicopter structure to withstand the load of an impact is

a critical factor in designing a bird-resistant windshield.

Hinds acknowledged that whether his

proposed 0.1 inch monolithic, polycarbonate windshield would work would require

looking at how the whole frame fits with the supporting structure. Appellants =

expert Bosik testified that designing the entire helicopter structure to

withstand the load of an impact is a critical issue and that proving whether or

not a bird will penetrate the material is only one of several steps in proving

the existence of a safer alternative design. Appellants =

expert Raffo, manager of a windshield manufacturer for all types of aircraft

(including helicopters for Bell in the past), agreed that a safer alternative

design of a windshield would require a complete structural design that would

consider the structure of the helicopter because the force that is not taken up

in the deflection of the windshield on impact will transfer to the structure of

the helicopter.

In addition, Bell expert Warren Wandel,

an accident investigator formerly with the National Transportation Safety

Board, testified that of all civilian helicopters in the world, ninety-five

percent are Part 27 helicopters (or the foreign equivalent) similar to the Bell

407; that Part 27 helicopters are popular and fit a certain niche because of their

size, speed, weight, operating costs, and number of passengers; and that they

are used extensively by law enforcement, pipeline and power line patrol,

offshore support of the petroleum industry, and television and radio stations. [18]

Bell structural engineer Steven Webster testified that neither the materials

nor the structure of light helicopters like the Bell 407 are designed for bird-impact

resistance, polycarbonate is not synonymous with bird-impact resistance, and

many efforts to use it over the years have been unsuccessful. Webster further

testified that the helicopter structure would have to be changed to withstand

an impact of the magnitude that occurred here. Finally, Bell structural

engineer Alan Allman explained that a 3.5 pound bird striking a helicopter at

120 knots generates 2230 foot-pounds of force and reiterated that a

polycarbonate windshield is not the same as a bird-resistant windshield. He

explained that the windshield is only one part of the system and agreed that

even assuming the windshield material would resist the impact, the A major

engineering portion @ in designing a

bird-resistant helicopter is building the entire structure of the helicopter

around the bird-resistant transparency so that it will A withstand

the load @

created by the impact. Designing the helicopter to resist the 2230 foot-pounds

of force would require additional weight to be added to the structure in the

front and the rear, that the additional weight will require a larger engine

with more horse-power, and that A by

the time you build that entire structure[,] you now have a [Bell] 430

helicopter. @ [19]

Nevertheless, Hinds did not evaluate the

impact of his proposal for an alternate design on the rest of the Bell 407’s

structural design. Although Hinds agreed that a windshield design must

consider how the windshield and its frame fit with the helicopter = s

supporting structure, he admitted that he did not do so in this case. Indeed,

he admitted that he does not have any experience with helicopter design, and he

testified that he only looked at available technology for the makeup of the

windshield and admitted that he could not answer structural questions about the

Bell 407. Hinds also agreed during his voir dire examination outside the

presence of the jury that a bird impact will transfer loads from the windshield

to the structure of the helicopter, but he admitted that he did not calculate

the loads transferred to the frame and did not know what the loads would do to

the frame. Hinds = s failure to analyze the

structure of the Bell 407 or to even calculate the load transferred to the

structure following a bird strike is a significant gap in his analysis, see

generally Gammill , 972 S.W.2d at 727 , and it illuminates the conclusory and

speculative nature of his testimony that a stretched acrylic or polycarbonate

windshield could be retained to the Bell 407 after a bird strike by adding

approximately 1.5 inches to the bonding area.

Other deficiencies in Hinds = s

testimony further illustrate the conclusory and speculative nature of his

opinions. Hinds testified on voir dire that the structures of helicopters and

airplanes are very similar, stating that the fundamental design principles for

any aircraft are basically the same; that they must A take

landing and takeoff loads @ ; that they must A take

air pressure loads @ ; that you must A calculate

the strength of the materials, the joint interfaces[,] and how they react @ ;

that A you

have to worry about how these loads are going to take pressure @ ;

and that these are A basic engineering principles. @ In

Volkswagon of America, Inc. v. Ramirez , the challenged expert testified

his accident reconstruction opinions involved application of A basic

scientific and engineering principles, but all abiding by the laws of physics, @ but

the expert had not read publications or seen studies that corroborated his

opinion, did not conduct or cite any tests to support his theory, and did not

explain how the tests he did conduct supported his conclusions. 159 S.W.3d

897 , 905 B 06

(Tex. 2004). Holding that the expert = s

opinion was unreliable and thus no evidence, the supreme court stated that the

expert = s A reliance

on the > laws

of physics, = without more, is an insufficient

explanation. @ Id. at 906 . Here, although

Hinds testified that his opinions are based on basic engineering principles, he

never explained how those principles or any tests or publications supported his

opinion that a stretched acrylic or polycarbonate windshield could be

successfully mated to the Bell 407 and make it bird resistant by adding approximately

1.5 inches to the bonding area.

Hinds = s

opinions also differ from those he employs in non-litigation contexts. Hinds

testified that his proposed stretched acrylic or polycarbonate windshield

designs would be bonded to the helicopter, but he admitted that all of the

transparencies his company makes are bolted to the aircraft and that he has no

experience designing transparencies for light helicopters. Thus, Hinds does

not have non-judicial experience with his proposed design or anything similar.

See Robinson , 923 S.W.2d at 557 n.2 ( A That

an expert testifies based on research he has conducted independent of the

litigation provides important, objective proof that the research comports with

the dictates of good science. @ ) (quoting Daubert v. Merrell

Dow Pharm., Inc. , 43 F.3d 1311 , 1317 (9th Cir. 1995) (op. on remand)).

Indeed, all of Hinds = s opinions were developed

for the litigation in this case. Hinds testified that he believes every

helicopter is unreasonably dangerous if it cannot sustain a four-pound bird

strike at full cruising speed but acknowledged that he did not hold that

opinion before this litigation. [20]

Moreover, despite his litigation opinions, Hinds testified that his company

delivered a 2.2 pound bird-resistant windshield for the Sikorsky S-92 while

this litigation was pending and after he was hired as an expert. Thus, his

opinions have no non-judicial application and differ from those he practices in

non-judicial settings. See id. at 557.

As to relevant testing of his theory, Hinds

testified that he has not tested a 0.1 inch monolithic polycarbonate windshield

in any aircraft, [21]

that he does not know if anyone else has, and that he is not aware of any

helicopters in existence that use a monolithic polycarbonate transparency. An

expert is not always required to do testing to support his opinions, A but

lack of relevant testing to the extent it was possible, either by the expert or

others, is one factor that points toward a determination that an expert opinion

is unreliable. @ Whirlpool , 298 S.W.3d at 642 .

Hinds testified that although his theory has not been tested, he knows that his

design will work because he has the necessary knowledge and experience and

because many of the other transparencies he has designed had not been designed

before. But see Ramirez , 159 S.W.3d at 904 B 06

(holding that expert = s theory rested on his A subjective

interpretation of the facts @ when he did not connect his

theory to any physical evidence in the case or to any tests or calculations

prepared to substantiate his theory).

Citing General Motors Corp. v.

Sanchez , Appellants argue that they presented legally sufficient evidence

of a safer alternative design because A there

is no requirement that a plaintiff actually design or build or test the

alternative. @ See 997 S.W.2d 584, 592 (Tex.

1999). [22]

But Sanchez is distinguishable. The Sanchez Court = s

statement about testing related to a plaintiff = s

burden to show the existence of a safer alternative design and did not concern

the Robinson factors or their application to the reliability of the

expert = s

opinion testimony. Id . at 591 B 92.

Indeed, G.M. failed in that case to preserve its challenge to the reliability

of the expert = s testimony. Id. at 591 .

Unlike in Sanche z, Bell preserved

its challenge to the reliability of Hinds = s

testimony. Further, unlike the expert in Sanchez , Hinds did not

disclose any testing, calculations, engineering analysis, or publications that

supported his opinion that adding approximately 1.5 inches to the bonding area

would retain a 0.14 inch stretched acrylic or 0.1 inch polycarbonate windshield

to the Bell 407 after a bird strike. [23]

The absence of Hinds = s underlying analysis and

the availability of testing A highlights the extent to

which [Hinds = s] theory was subject to testing and

examining for reliability. @ Whirlpool , 298

S.W.3d at 642 .

In summary, Hinds = s

testimony does not link his conclusions to the facts of the case or the

analysis, if any, that he performed to determine that either a 0.14 inch

stretched acrylic or 0.1 inch polycarbonate windshield could be successfully

mated to the Bell 407 by adding 1.5 inches to the mounting structure. His

theory relies heavily upon his own subjective interpretation, has not been

generally accepted within the relevant aircraft community, does not have any

non-judicial uses, could have been tested but was not, and differs from what he

employs outside of litigation. See id. at 640 B 43

(holding expert = s testimony conclusory,

speculative, and not entitled to probative weight after applying Robinson

factors); Coastal Transp. Co. , 136 S.W.3d at 231 B 33

(holding expert = s testimony was too

conclusory to support a judgment). We hold that Hinds = s

testimony that either a stretched acrylic or polycarbonate windshield could be

mated to the Bell 407 by adding 1.5 inches to the helicopter frame is

conclusory, speculative, and not entitled to probative weight. See

Whirlpool , 298 S.W.3d at 643 . Therefore, Hinds = s

testimony is no evidence of a safer alternative design.

4. Other Evidence of Safer Alternative

Design

Having determined that Hinds = s

testimony concerning a safer alternative design is not entitled to probative

weight, we must determine whether Appellants offered other legally sufficient

evidence of a safer alternative design.

Appellants argue that they presented

sufficient evidence that a monolithic polycarbonate windshield was feasible at

the time of manufacture in 1997 because they offered evidence that A the

Aerospatiale AS-350, which like the Bell 407 is a Part 27 helicopter with a

similar windshield design to the Bell 407, was offered with a monolithic,

single-layer polycarbonate windshield in 1977. @

First, there is no evidence in the record that the monolithic polycarbonate

windshield on the AS-350 was resistant to a 3.5 pound bird strike or would

remain attached to the helicopter following a 3.5 pound bird strike. See

Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(1)

(providing that alternative design must have A prevented

or significantly reduced the risk @ of

the injury); see also Smith v. Louisville Ladder Co. , 237 F.3d 515 , 519 B 20

(5th Cir. 2001) (applying Texas law and holding safer alternative design not

proven when expert could not say that alternative design would have prevented

the plaintiff = s fall). Moreover, Aerospatiale

abandoned the polycarbonate windshields in the AS-350 because of the

polycarbonate = s reaction to cleaning agents, and

current models of the AS-350 have as-cast acrylic windshields similar to those

in the Bell 407. See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(2)

(providing that safer alternative design must be technologically feasible).

Further, Appellants presented no evidence of the costs of incorporating the

AS-350 design into the Bell 407. See Honda of Am. Mfg., Inc. v. Norman ,

104 S.W.3d 600, 607 (Tex. App. C Houston [1st Dist.] 2003,

pet. denied). [24]

Without evidence concerning the cost of incorporating the AS-350 design into

the Bell 407, there is no evidence of the economic feasibility of the AS-350

design. See id. ; Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 478

(Tex. App. C Houston [1st Dist.] 2000, pet. denied); Jaimes

v. Fiesta Mart, Inc. , 21 S.W.3d 301, 306 (Tex. App. C Houston

[1st Dist.] 1999, pet. denied). Thus, the existence of the AS-350 is no

evidence of a safer alternative design for the Bell 407 as it relates to the

facts of this case.

Appellants also argue that they

presented evidence of feasibility because Bell currently has a prototype Bell

407 with polycarbonate windshields. But the prototype Bell 407 was developed

after the accident helicopter was manufactured in 1997, and it has not been

tested for bird resistance. Indeed, there was testimony at trial that, even at

the time of trial in September 2007, no helicopter manufacturers were building

Part 27 helicopters like the Bell 407 with polycarbonate windshields and that

no helicopter manufacturers were building Part 27 helicopters with any kind of

bird-resistant or bird-proof windshields. Without evidence that the prototype

helicopter is actually bird resistant, the existence of a prototype with polycarbonate

windshields, first developed after the accident helicopter was manufactured in

1997, is no evidence of a technologically feasible safer alternative design at

the time of manufacture that would reduce the risk of injury. [25]

See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(1);

see also Smith , 237 F.3d at 519 B 20.

Finally, Appellants point to evidence

that Bell produced the bird-resistant Bell 222 in the 1980’s because the United

Kingdom required all helicopters at the time to be bird-resistant. However,

the Bell 222 was a Part 29 helicopter and was only resistant to a 2.2 pound

bird strike. The Bell 407 is a Part 27 helicopter, and the bird involved in

this accident weighed substantially more than 2.2 pounds. Thus, the existence

of the Bell 222 is no evidence of a safer alternative design for the Bell 407. [26]

See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(2);

Smith , 237 F.3d at 519 B 20; see also Brockert ,

287 S.W.3d at 770 (citing Shears , 911 S.W.2d at 384 B 85).

Absent competent expert testimony as to

whether it was feasible in 1997 to mount a 0.1 inch polycarbonate or 0.14 inch

stretched acrylic windshield to a Bell 407 so that the windshield would both

resist a 3.5 pound bird and also not become dislodged from the helicopter,

Appellants presented no evidence of a safer alternative design for the

windshield on the Bell 407 that would have sustained an impact with a 3.5 pound

bird and prevented or significantly reduced the risk of injury to Appellants.

We therefore sustain this part of Bell = s

second issue. [27]

D. Helicopter Door Mounts

Bell contends in its fifth issue that

there is no evidence that the door mounts on the helicopter were defectively

designed or that a safer alternative design existed because the only evidence

Appellants presented was A textbook speculation or

conjecture. @

Ross, Appellants =

accident reconstruction expert, testified that he examined the wreckage of a

Bell 206 and that the Bell 407 is a derivative of the Bell 206. Ross testified

that the wrecked Bell 206 he examined was in about the same condition as the

wrecked Bell 407 in this case, that the sides of the Bell 206 were made of

aluminum, that the sides of the Bell 407 were made of a carbon-fiber material,

that the doors of the Bell 206 did not come off in its crash, but that the

doors of the Bell 407 came off in the instant crash. However, Ross never

testified that the Bell 407 was defectively designed because its sides were

made of carbon-fiber material. Further, although Ross implicitly suggested

that the aluminum construction of the Bell 206 was a safer design, he did not

explain why the aluminum is a safer design, provide any details concerning the

crash of the Bell 206 to explain why the doors remained on that helicopter, or

give any reason the doors of the Bell 407 would have remained on the helicopter

had its sides been constructed of aluminum. Therefore, Ross = s

testimony is conclusory and no evidence that the door mounts on the Bell 407

were defectively designed or that there was an available safer alternative

design. See Coastal Transp. Co., 136 S.W.3d at 231 B 33

(holding expert = s testimony was too

conclusory to support a judgment).

Appellants incorrectly contend that Bell

waived its complaint concerning the sufficiency of Ross = s

testimony. A [W]hen a reliability challenge requires

the court to evaluate the underlying methodology, technique, or foundational

data used by the expert, an objection must be timely made so that the trial

court has the opportunity to conduct this analysis. @ Id.

at 233 . A However, when the challenge is

restricted to the face of the record, for example, when expert testimony is

speculative or conclusory on its face, then a party may challenge the legal

sufficiency of the evidence even in the absence of any objection to its

admissibility. @ Id. Here, Bell = s

challenge does not concern Ross = s methodology, technique, or

foundational data. Instead, Bell argues that Ross = s

testimony is conclusory and speculative on its face. No objection was required

to preserve the no evidence issue for appellate review. See id. We

sustain Bell = s fifth issue.

E. Helicopter Restraint System

Bell argues in its fourth issue that the

trial court erred by submitting the design defect claim concerning the

helicopter restraint system to the jury because there is no evidence that

Appellants = proposed alternative restraint system

was available for use on civil helicopters or that the proposed alternative

restraint system would have prevented or significantly reduced Gloria = s

injuries.

1. Commercial Availability

Bell contends that Appellants did not

meet their burden of proving that the MA-16, Appellants =

proposed safer alternative design, and its underlying technology were available

for use at the time the Bell 407 was manufactured in 1997 because Appellants =

seatbelt expert, William Muzzy, A undertook

no analysis of whether the design could have passed the rigorous FAA testing

and certification procedure[] so that it could have actually been installed on

the aircraft. @ Bell also argues that Appellants A made

no showing that the MA-16 or its underlying technology would be approved for

use by the State Department @ under the International

Trafficking in Arms Regulations (ITAR). However, Bell cites no authority to

support its contentions, and we find none.

Contrary to Bell = s

assertion, section 82.005(b) does not require proof that the proposed safer

alternative design would have gained regulatory approval. See Tex. Civ.

Prac. & Rem. Code Ann. ' 82.005(b). Instead,

section 82.005(b) requires proof that the safer alternative design A was

economically and technologically feasible at the time the product left the

control of the manufacturer or seller by the application of existing or

reasonably achievable scientific knowledge. @ Id.

To adopt Bell = s contention that a claimant must prove

that the proposed alternative design would have been approved by the relevant

regulatory agencies would be tantamount to adding an additional element to a

claimant = s

design defect cause of action, and we decline to do so. See Petco Animal

Supplies, Inc. v. Schuster , 144 S.W.3d 554, 565 (Tex. App. C Austin

2004, no pet.) ( A As an intermediate appellate

court, we are not free to mold Texas law as we see fit but must instead follow

the precedents of the Texas Supreme Court unless and until the high court

overrules them or the Texas Legislature supersedes them by statute. @ ).

We therefore overrule this portion of Bell = s

fourth issue.

2. Prevent or Significantly Reduce Risk

of Injury

Bell also argues that there is no

evidence that the MA-16 was a safer alternative design because Muzzy never

explained how the MA-16 would have prevented or significantly reduced the risk

of Gloria = s injuries.

Muzzy testified that the MA-16 was a

safer alternative design to the restraint system in the Bell 407 because the MA-16

has an omni-directional sensing retractor and the Bell 407 = s

movements after impact were omni-directional. Muzzy explained that the MA-16

is a A dual-sensing

omnidirectional retractor @ that incorporates both

vehicle sensing and web sensing technology and that the Bell 407 restraint

system had only web sensing technology. He testified that web sensing locks

the seatbelt when the seatbelt is pulled forward rapidly but that the seatbelt

will unlock when the tension on the seatbelt is released. In contrast, vehicle

sensing locks the seatbelt when the helicopter is accelerated in any

direction. Muzzy testified that the MA-16 would have prevented Gloria from

moving outside the helicopter because it has omni-directional dual sensing.

Using the animation of the crash

sequence, Muzzy demonstrated each of the times that Gloria = s

restraint would have locked and then unlocked. Muzzy testified that even

though Gloria had her seatbelt on, she was partially ejected from the

helicopter during the crash sequence because the locking and unlocking in the

restraint system allowed the seatbelt to continually extend to the point where

it did not restrain her in her seat or even inside the helicopter. He

testified that the restraint system worked as it was designed but that it

should have been designed so that it would not lock and unlock.

Again using the animation of the crash

sequence, Muzzy testified that the helicopter = s

movements during the crash sequence were omni-directional because A [y]ou

have a force down, you have forces laterally and you have deceleration forces

forward. So you have them in all three directions. @ He

averred that A the lack of an omni-directional vehicle

sensing retractor . . . in the aircraft was the proximate

cause of [Gloria] being ejected and [her] subsequent death. @

Muzzy = s

testimony is not conclusory and presented more than a scintilla of evidence

that the proposed safer alternative design would have prevented or

significantly reduced the risk of Gloria = s

death. See Burry , 203 S.W.3d at 535 B 36

(holding that expert A sufficiently explained the

basis for his testimony @ and that there was more

than a scintilla of evidence of a safer alternative design). We therefore

overrule the remainder of Bell = s fourth issue.

VII.

Comparative Responsibility

Appellants contend in their fifth issue

that the evidence is legally and factually insufficient to support the jury = s

finding that Captain Damian = s comparative negligence

caused fifty percent of the Appellants =

injuries.

A. Standards

of Review

We may sustain a legal sufficiency

challenge only when (1) the record discloses a complete absence of evidence of

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

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the

evidence establishes conclusively the opposite of a vital fact. Uniroyal

Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied , 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"

and "Insufficient Evidence" Points of Error , 38 Tex. L. Rev. 361 ,

362 B 63

(1960). Anything more than a scintilla of evidence is legally sufficient to

support the finding. Cont = l

Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 450 (Tex.

1996); Leitch v. Hornsby , 935 S.W.2d 114, 118 (Tex. 1996). When the

evidence offered to prove a vital fact is so weak as to do no more than create

a mere surmise or suspicion of its existence, the evidence is no more than a

scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc. ,

650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists if the

evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int = l,

Inc. v. Nat = l Union Fire Ins. Co. , 77

S.W.3d 253, 262 (Tex. 2002). In determining whether there is legally

sufficient evidence to support the finding under review, we must consider

evidence favorable to the finding if a reasonable factfinder could and

disregard evidence contrary to the finding unless a reasonable factfinder could

not. Cent. Ready Mix Concrete Co. v. Islas , 228 S.W.3d 649, 651 (Tex.

2007); City of Keller , 168 S.W.3d at 807, 827 .

When reviewing an assertion that the

evidence is factually insufficient to support a finding, we set aside the

finding only if, after considering and weighing all of the evidence in the

record pertinent to that finding, we determine that the evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the

evidence, that the answer should be set aside and a new trial ordered. Pool

v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh = g); Garza

v. Alviar , 395 S.W.2d 821, 823 (Tex. 1965); In re King = s

Estate , 150 Tex. 662 , 244 S.W.2d 660, 661 (1951). Factual

sufficiency issues depend on who has the burden of proof at trial. See

Gooch v. Am. Sling Co ., 902 S.W.2d 181, 184 (Tex. App. C Fort

Worth 1995, no writ). When the party with the burden of proof appeals from a

failure to find, the party must show that the failure to find is against the

great weight and preponderance of the evidence. Cropper v. Caterpillar

Tractor Co ., 754 S.W.2d 646, 651 (Tex. 1988); see Herbert v. Herbert ,

754 S.W.2d 141, 144 (Tex. 1988).

B. Analysis

Ross, Appellants =

helicopter pilot expert, testified that the helicopter was flying at 120 knots

forward air speed and at 1,500 feet above sea level when Captain Damian made a

five-degree course correction to avoid the flock of birds sighted in the

distance. Ross said that he had no criticisms of the five-degree course

correction because the pilots acknowledged the birds and made a move to avoid

the pack of birds. Ross explained that the five-degree course correction would

have moved the helicopter away from the birds at a distance of

three-and-one-half rotor lengths and that he believed this was sufficient

because the helicopter moved past the flock of birds. [28]

Based on Captain Garay = s testimony, Ross stated

that he believed the helicopter moved past the flock of birds because the bird

did not come from the main pack, that it approached the helicopter from above,

and that it approached quickly, giving the pilots only fractions of a second to

try to avoid it. Ross averred that Captains Damian and Garay were not

negligent, that they did all they could to save the helicopter and its

passengers, and that they did not proximately cause the accident.

Ross admitted on cross-examination,

however, that Captain Garay = s written statement to

Panamanian investigators twenty days after the accident mentioned only a single

bird and did not mention a flock of birds. [29]

Ross also acknowledged that a pilot wants to do all he can to avoid a mid-air

collision with a bird, especially a bird the size of the one that struck the

helicopter. He testified that seeing birds ahead would alert him to think of a

potential mid-air collision and that he would act to avoid a collision. Ross

agreed that the pilots could have turned the helicopter sharply or hovered after

seeing the birds thirty to sixty seconds away at 120 knots. He also agreed

that Captain Damian could have turned the helicopter thirty or forty-five

degrees and significantly increased the helicopter = s

distance from the birds, that two ninety-degree turns would have added less

than one minute to the overall flight time, and that there was no reason

Captain Damian could not have made two ninety-degree turns. Ross also

acknowledged that a vulture can fly up to 900 feet in thirty seconds and that a

five-degree course correction would not alter the helicopter = s

course 900 feet. In addition, Ross agreed that a pilot does not know what a

bird will do, so the pilot should err on the side of caution in attempting to

avoid a collision. Moreover, in response to a hypothetical question, Ross

testified that he would place some fault on the pilots if they saw a

hang-glider thirty to sixty seconds away but failed to avoid the hang-glider

after making only a five-degree course correction. Finally, Ross agreed that a

more aggressive evasive action by the pilots in this case would have avoided

the mid-air collision.

The jury also heard testimony from

Warren Wandel, Bell = s pilot expert, concerning

comparative negligence by Captain Damian. Wandel testified that ninety percent

of bird strikes occur below 2000 feet, that eighty-three percent of bird

strikes occur below 1500 feet, that flying closer to the ground increases the

chances of a bird strike, and that an important avoidance technique is to fly

the aircraft A at the highest altitude you can. @

Wandel also listed other considerations for avoiding bird strikes, including

charting flight plans to avoid known bird concentration areas and reducing

speed when operating in areas of bird activity. He also testified that, even assuming

there was a single bird flying away from the flock of birds, Captain Damian

should have made a more drastic course correction after seeing the flock of

birds and that doing so would have avoided the accident. We conclude that the

evidence is legally and factually sufficient to support the jury = s

finding that Captain Damian was negligent. See Cent. Ready Mix

Concrete Co. , 228 S.W.3d at 651 ; City of Keller , 168 S.W.3d at 807,

827 ; Pool , 715 S.W.2d at 635 ; Garza , 395 S.W.2d at 823 ; King = s

Estate , 244 S.W.2d at 661 .

Concerning the jury = s

apportionment of fifty percent responsibility to Captain Damian, the A jury

is given wide latitude in performing its sworn duty to serve as factfinder in

allocating responsibility for an accident pursuant to section 33.003 of the

civil practice and remedies code. @ Rosell

v. Cent. W. Motor Stages, Inc. , 89 S.W.3d 643, 659 (Tex. App.––Dallas 2002,

pet. denied). In Rosell , despite conflicting evidence, the court

affirmed the factual sufficiency of the evidence supporting the jury = s

apportionment of seventy percent responsibility to the claimant for causing his

own injuries when he stopped to help an injured motorist on the side of the

road, moved into the lane of an approaching bus, was warned of the bus, but did

not take evasive action. Id. Similarly, in Hagins v. E-Z Mart

Stores, Inc. , a case involving a fatal fall by a construction worker, the

court affirmed the jury = s apportionment of sixty

percent responsibility to the decedent because the evidence demonstrated that

it was unsafe to use a platform while positioned at an angle, that the decedent

decided not to attempt to place the platform flush against the wall, and that

the decedent knew the hazards of working above the ground without a safety

harness. See 128 S.W.3d 383, 392 (Tex. App.––Texarkana 2004, no pet.).

Given the conflicting evidence presented to the jury, including but not limited

to the testimony that the accident would not have occurred had Captain Damian

taken more aggressive evasive action, we conclude that the evidence is legally

and factually sufficient to support the jury = s

apportionment of fifty percent responsibility to Captain Damian. A [I]t

is not the place of this Court to substitute its judgment for that of the jury,

even if a different percentage of allocation could be supported by the

evidence. @ Id. (citing Rosell , 89

S.W.3d at 659 B 60).

Based on the foregoing, and after

reviewing all of the evidence in the light favorable to the jury = s

findings, crediting favorable evidence if a reasonable factfinder could, and

disregarding contrary evidence unless a reasonable factfinder could not, we

hold that there is legally sufficient evidence to support the jury = s

findings that Captain Damian was comparatively negligent and that his

negligence caused fifty percent of Appellants =

injuries. See Cent. Ready Mix Concrete Co. , 228 S.W.3d at 651 ; City

of Keller , 168 S.W.3d at 807, 827 . Likewise, after considering and

weighing all of the evidence pertinent to the jury = s

findings, we cannot say that the evidence supporting the jury = s

findings is so weak or contrary to the overwhelming weight of all the evidence

that it should be set aside and a new trial ordered. See Pool , 715

S.W.2d at 635 ; Garza , 395 S.W.2d at 823 ; King = s

Estate , 244 S.W.2d at 661 . We therefore overrule Appellants =

fifth issue.

VIII.

Mental Anguish Damages

Appellants contend in their fourth issue

that the trial court erred by failing to order a new trial because the damages

awarded by the jury are A so against the great weight

and preponderance of the evidence as to be manifestly unjust. @

Because of our disposition of Bell = s

second, fourth, and fifth issues, we address only the jury = s

award of $50,000 in mental anguish damages to Gloria = s

estate. See Tex. R. App. P. 47.1.

Appellate briefs must contain

appropriate citations to the record. See Tex. R. App. P. 38.1(i). And

bare assertions of error without proper citation to the record waive error. See

Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 284 (Tex.

1994) (appellate court has discretion to waive point of error due to inadequate

briefing); Devine v. Dallas Cnty. , 130 S.W.3d 512 , 513–14 (Tex. App.––Dallas

2004, no pet.) (holding that when a party fails to adequately brief a

complaint, he waives the issue on appeal). Although Appellants devote eight

pages of their brief to their contention that the jury = s

damage awards are against the great weight and preponderance of the evidence,

Appellants = brief does not cite any portion of the

record to support their assertion that the $50,000 in mental anguish damages

awarded to Gloria = s estate are so against the

great weight and preponderance of the evidence to be manifestly unjust. And

although Appellants included the damages awarded to Gloria = s

estate in the recitation of their fourth issue, the remainder of Appellants =

briefing concerning damages never again mentions the $50,000 awarded to Gloria = s

estate for mental anguish. Because Appellants =

assertion that the damages awarded to Gloria = s

estate are against the great weight and preponderance of the evidence is not

supported by record references or citation to legal authority, they have failed

to preserve this issue for appellate review. See Tex. R. App. P.

38.1(i); Fredonia State Bank , 881 S.W.2d at 284 ; Devine , 130

S.W.3d at 513–14. We overrule Appellants =

fourth issue.

IX.

Alleged Jury Misconduct

Appellants contend in their first two

issues that the trial court erred by failing to accept juror affidavits for

filing, failing to conduct an open hearing concerning allegations that the jury

traded-off answers on the jury charge, and failing to grant a new trial due to

alleged jury misconduct. Appellants argue in their third issue that if Texas

law prohibits inquiry into the alleged jury misconduct in this case, then the

prohibition violates the open-courts provision of the Texas constitution and

the Fifth and Fourteenth Amendments to the United States Constitution. Bell

responds that we should overrule Appellants =

first three issues because rule of civil procedure 327(b) and rule of evidence

606(b) prohibit juror testimony concerning any matter or statement occurring

during deliberations other than matters related to outside influence. See

Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b).

A. Traded Answers

Rule of civil procedure 327(b) states:

A juror may not

testify as to any matter or statement occurring during the course of the jury = s deliberations or to

the effect of anything upon his or any other juror = s mind or emotions as

influencing him to assent to or dissent from the verdict concerning his mental

processes in connection therewith, except that a juror may testify whether any

outside influence was improperly brought to bear upon any juror. Nor may his

affidavit or evidence of any statement by him concerning a matter about which

he would be precluded from testifying be received for these purposes.

Tex. R. Civ. P. 327(b). Rule of evidence 606(b) sets

forth a virtually identical prohibition against jury testimony concerning any

matter other than outside influence. Tex. R. Evid. 606(b).

Appellants argue that the trial court

should have accepted the juror affidavits and conducted an open hearing to

receive juror testimony because the jury = s

alleged A trading-off @ of

answers was an overt act of the jurors and did not involve any juror = s

mental processes. Appellants also contend that an overt act is governed by

rule 327(a), which permits evidence of jury misconduct, rather than rule

327(b), which prohibits juror testimony concerning deliberations. Compare

Tex. R. Civ. P. 327(a), with Tex. R. Civ. P. 327(b). In Golden Eagle

Archery, Inc. v. Jackson , the supreme court stated:

Most Texas courts

considering the question have held that the rules prevent a juror from

testifying that the jury discussed improper matters during deliberation. We

agree. The rules contemplate that an A outside influence @ originates from

sources other than the jurors themselves. Accordingly, here the accounts that

some jurors speculated whether alcohol was involved in the accident and that

Jackson may have received a settlement, or that the jurors traded answers on

two issues , are all juror statements about matters occurring during their

deliberations. They are not evidence of outside influences.

24 S.W.3d 362, 370 (Tex. 2000) (internal citations omitted)

(emphasis added).

Applying Golden Eagle Archery to

this case, juror testimony that they traded answers is not evidence of an

outside influence. See id. Thus, civil procedure rule 327(b) and rule

of evidence 606(b) prohibited the trial court from receiving juror affidavits

or other juror testimony concerning alleged traded answers. See Tex. R.

Civ. P. 327(b); Tex. R. Evid. 606(b); Golden Eagle Archery , 24 S.W.3d at

370 ; see also Ford Motor Co. v. Castillo , 279 S.W.3d 656, 666 (Tex.

2009) ( A [D]iscovery

involving jurors should ordinarily be limited to facts and evidence relevant to

(1) whether any outside influence was improperly brought to bear upon any

juror, and (2) rebuttal of a claim that a juror was not qualified to serve. @ ).

Appellants cite several cases for the

proposition that A the trading of answers and

the cluster answering are of such severity and obvious harm that a new trial

must be granted. @ [30]

However, each case cited by Appellants was decided before the effective dates

of the current rule of procedure 327(b) and rule of evidence 606(b). See

Robinson Elec. Supply Co. v. Cadillac Cable Corp. , 706 S.W.2d 130 , 131 B 32

(Tex. App.––Houston [14th Dist.] 1986, writ ref = d

n.r.e.), overruled on other grounds by , Golden Eagle Archery , 24

S.W.3d at 369 & n.3 (noting effective date of rules and stating, A Under

former Rule 327(b), effective until April 1, 1984, a juror was permitted to

testify as to matters and statements, or > overt

acts = ,

which occurred during deliberations. @ ).

Therefore, we are bound by the language of rules 327(b) and 606(b) that

prohibits juror testimony concerning any matter other than outside influence

and the supreme court = s holding in Golden Eagle

Archery that alleged trading answers by the jury is not an outside

influence. See Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b); Golden

Eagle Archery , 24 S.W.3d at 370 . And we decline to adopt a rule, as

suggested by Appellants, that inquiry into jury deliberations is permissible if

there is prima facie evidence of jury misconduct during deliberations other

than an outside influence. We overrule Appellants =

first and second issues.

B. Constitutional Arguments

Appellants contend in their third issue

that the prohibition against juror testimony concerning the A trading-off @ of

answers violates their rights to due process and equal protection under the

United States Constitution and to due process, a jury trial, and open courts

under the Texas constitution. See U. S. Const. amends. V, XIV, ' 1;

Tex. Const. art. I, '' 13, 15, 19.

In Golden Eagle Archery , the

appellant argued that rule 327(b) A conflicts

with the guarantees of the right to a fair and impartial jury trial @ in

article I, sections 10 and 15 of the Texas constitution. 24 S.W.3d at 374 .

Rejecting the argument, the court discussed with approval two cases from the

Corpus Christi court of appeals that collectively held that rules 327(b) and

606(b) do not violate due process under the Fourteenth Amendment or the Texas

constitution, the right to a fair and impartial jury under the Texas

constitution, or the open courts provision of the Texas constitution. Id. ;

see Soliz v. Saenz , 779 S.W.2d 929 , 934–35 (Tex. App.––Corpus Christi

1989, writ denied); King v. Bauer , 767 S.W.2d 197, 199 (Tex. App.––Corpus

Christi 1989, writ denied). We follow Golden Eagle , Soliz , and King

and hold that rules 327(b) and 606(b) do not violate Appellants =

rights under the United States Constitution or the Texas constitution. [31]

We overrule Appellants = third issue.

X.

Conclusion

Because we have overruled each of

Appellants = six issues, sustainedpart of Bell = s

second issue and all of its fifth issue, and overruled the remainder of Bell = s

issues, we affirm the portion of the trial court = s

judgment relating to the claims on behalf of Gloria Gasperi = s

estate. We reverse the remainder of the trial court = s

judgment, and we render judgment that Appellants Lourdes Maria Vargas de

Damian, individually, as next friend to Nicole Denisse Damian Vargas, and as

representative of the estate of Demetrio Damian Chen, deceased; Ricardo Adolfo

Garay Barrios; Lorenzo Romagosa Acrich; and Ida Romagosa de Aranjo take

nothing.

ANNE

GARDNER

JUSTICE

PANEL: DAUPHINOT,

GARDNER, and WALKER, JJ.

WALKER, J. filed a

concurring and dissenting opinion.

DELIVERED: August 31,

2011

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO. 02-08-00210-CV

Lourdes Maria Vargas de Damian, Individually, As

Next Friend to Nicole Denisse Damian Vargas, and as Representative of the

Estate of Demetrio Damian Chen, Deceased; GUILLERMO JOSE GASPERI, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE ESTATE OF GLORIA GASPERI, DECEASED; CARLA

GASPERI, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF GLORIA GASPERI,

DECEASED; Angela cecilia lassen de gasperi, as legal and personal

representative of the estate of gloria gasperi; ricardo adolfo garay barrios;

lorenzo romagosa acrich; and ida romagosa de aranjo

APPELLANTS

AND APPELLEES

V.

Bell Helicopter Textron, Inc.

APPELLEE

AND APPELLANT

----------

FROM THE 352nd

District Court OF Tarrant COUNTY

----------

CONCURRING

AND DISSENTING OPINION

----------

I. I ntroduction

In its second issue, Appellee Bell Helicopter

Textron, Inc. argues that the trial court erred by submitting question 6, the

design defect question, to the jury. Specifically, Bell claims, and the

Majority Opinion holds, that Bill Hinds’s testimony is the only evidence in the

record that a safer alternative windshield design was feasible in 1997 when the

Bell 407 helicopter at issue was manufactured. I cannot agree that Hinds’s

testimony is the only evidence supporting the feasibility of the safer

alternative design element of the windshield design defect claim asserted

against Bell by Appellants. Even excluding Hinds’s testimony, the remainder of

the testimony and the evidence in the fifty-nine volumes of the reporter’s

record contains more than a scintilla of evidence that a safer alternative

design—either a 0.14-inch stretched acrylic windshield or a 0.10-inch

monolithic polycarbonate windshield—was technologically and economically feasible

in 1997, that the safer alternative design would have significantly reduced the

risk that the black vulture would have penetrated the helicopter’s windshield

intact and killed Captain Damian, and that use of the safer alternative design

windshield would not have substantially impaired the Bell 407’s utility. [32]

Accordingly, I dissent. I concur with the remainder of the Majority’s Opinion.

II.

E ven D isregarding

H inds’s T estimony ,

L egally S ufficient

E vidence E xists

to S upport

S ubmission of Q uestion

6 to the J ury

A. Standard of

Review

We may sustain a legal sufficiency

challenge only when (1) the record discloses a complete absence of evidence of

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

giving weight to the only evidence offered to prove a vital fact, (3) the

evidence offered to prove a vital fact is no more than a mere scintilla, or (4)

the evidence establishes conclusively the opposite of a vital fact. Uniroyal

Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied , 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and “Insufficient

Evidence” Points of Error , 38 Tex. L. Rev. 361 , 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v.

Islas , 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson ,

168 S.W.3d 802, 807, 827 (Tex. 2005).

B. The

Court’s Charge

Question number 6 submitted the

following question to the jury:

QUESTION NO. 6:

Was there a

design defect in the helicopter at the time it left the possession of Bell

Helicopter Textron, Inc. that was a producing cause of the injuries in

question?

A “design

defect” is a condition of the product that renders it unreasonably dangerous as

designed, taking into consideration the utility of the product and the risk

involved in its use. For a design defect to exist there must have been a safer

alternative design.

“Safer

alternative design” means a product design other than the one actually used

that in reasonable probability––

1. would

have prevented or significantly reduced the risk of the occurrence in question

without substantially impairing the product’s utility and

2. was

economically and technologically feasible at the time the product left the

control of Bell Helicopter Textron, Inc. by the application of existing or

reasonably achievable scientific knowledge.

Answer “Yes” or “No.”

Answer: [ the jury

answered, “yes”]

C. Other

Testimony and Evidence in the Record

The crash at issue occurred when a 3.5- to

4-pound black vulture hit the 0.10-inch as-cast acrylic windshield of a Bell

407 helicopter being flown by Captain Damian. All experts agreed that the

maximum speed that the Bell 407 could have been traveling at the time of the

bird strike was 120 knots. The bird penetrated the helicopter’s windshield,

making a hole in it, and entered the cockpit intact. Several pictures of the

bird and the helicopter’s windshield were offered into evidence; they showed

the bird intact and a hole straight through the helicopter’s as-cast acrylic

windshield. The bird struck Captain Damian in the head and either killed him

or caused him to lose consciousness so that he slumped over the helicopter’s

controls.

In its second issue, Bell claims that

Hinds’s testimony is the only evidence in the record that a safer alternative

windshield design was technologically and economically feasible in 1997 when

the Bell 407 was manufactured. Bell claims that neither of Hinds’s proposed

safer alternative designs––a 0.14-inch stretched acrylic windshield or a

0.10-inch monolithic polycarbonate windshield––were technologically feasible

(1) because the stretched acrylic windshield was too heavy to be used in a

light, Part 27 helicopter like the Bell 407; (2) because insertion of a

0.10-inch monolithic polycarbonate windshield into a Bell 407 would require

“hundreds and hundreds” of pounds of structure to be added to support the

polycarbonate windshield; and (3) because a 0.10-inch monolithic polycarbonate

windshield would not stay in the windshield frame in the event of a bird strike

but instead would push through the frame into the cockpit.

As set forth below, even excluding

Hinds’s testimony, more than a scintilla of evidence exists proving each of the

vital facts necessary to support the safer alternative design element of the

windshield design defect claim submitted to the jury in question 6.

1.

Technological Feasibility

The jury’s finding that a safer

alternative windshield design—a 0.14-inch stretched acrylic bird-impact

resistant windshield or a 0.10-inch monolithic polycarbonate bird-impact

resistant windshield—existed in 1997 when the Bell 407 at issue was

manufactured is supported by the evidence set forth below. Most importantly,

prior to 1997, Bell itself manufactured bird-impact resistant

windshields for some of its helicopters. [33]

Bell’s manufacture of bird-impact resistant windshields prior to 1997 is some

evidence that it was technologically feasible for Bell to manufacture a

bird-resistant windshield in 1997 for the Bell 407 by the application of

existing or reasonably achievable scientific knowledge that Bell itself

possessed.

Although Bell asserted at trial that

polycarbonate windshields were not technologically feasible because they

suffered from clarity and durability issues, Bell developed a coating via a

study it concluded in 1994 that eliminated all of the clarity and durability

issues Bell had encountered with polycarbonate windshields. [34] And

coating a windshield does not add appreciably to the thickness of the

windshield; “[t]he coating is very thin one mil. It’s within tolerance of the

structural ply, so the coating -- if you coat a polycarbonate ply, it does not

increase the thickness appreciably.”

Although Bell asserted at trial that

neither of the proposed safer alternative windshields—a 0.14-inch stretched

acrylic bird-impact resistant windshield nor a 0.10-inch monolithic

polycarbonate bird-impact resistant windshield—were technologically feasible

because they weighed too much, testimony and evidence was adduced that neither

of the safer alternative design windshields are much heavier than the 0.10-inch

as-cast acrylic windshield that was in the Bell 407. [35]

Although Bell asserted at trial that

installation of the safer alternative design of a 0.10-inch monolithic

polycarbonate bird-impact resistant windshield was not technologically feasible

because it would require the addition of “hundreds and hundreds” of pounds of

structure to the Bell 407 to support the windshield, after the accident at

issue here, Bell in fact did install a 0.10-inch monolithic polycarbonate

bird-impact resistant windshield in a Bell 407. Absolutely no structural

changes were made to the Bell 407 prior to installing the 0.10-inch monolithic

polycarbonate windshield, [36] and

certainly not the addition of “hundreds and hundreds of pounds of structure.” [37]

2.

Economic Feasibility

Several witnesses testified

that both a monolithic polycarbonate windshield and a stretched acrylic

windshield were economically feasible in prior to 1997. [38]

3. Either of the

Safer Alternative Design Windshields Would Have Significantly Reduced the

Risk of the Occurrence in Question

Had the Bell 407 been equipped with

either of the safer alternative design bird-impact resistant

windshields––either a 0.10-inch monolithic polycarbonate windshield or a

0.14-inch stretched acrylic windshield, instead of the 0.10-inch as-cast

acrylic windshield it did possess––in reasonable probability, the vulture would

either have not come through the windshield or would have been liquefied or

broken into pieces so that Captain Damian was not killed. [39] Polycarbonate

is more bird-impact resistant than as-cast acrylic because it is more flexible

and absorbs more energy. [40]

Stretched acrylic is more bird-impact resistant than as-cast acrylic because

heating and stretching the acrylic causes the cross-linking molecules to line

up and results in a more impact-resistant material. [41] A

0.10-inch stretched acrylic windshield would have significantly reduced the

risk of the occurrence in question, and a 0.14-inch stretched acrylic

windshield would have prevented the vulture from penetrating the windshield

intact. [42]

Although Bell asserted at trial that a

0.10-inch monolithic polycarbonate windshield would not have prevented the

occurrence in question because, according to Bell, the windshield would have

pushed through its frame into the cockpit of the helicopter, Bell based this

assertion on non-bird-strike testing that the jury could have found flawed and

disbelieved. [43]

The non-bird-strike testing that Bell did perform in preparation for this

litigation involved dropping fifty pounds of lead from a crane onto a square

piece of 0.10-inch monolithic polycarbonate mounted in a wooden frame. [44]

And even Bell’s non-bird-strike testing constituted some evidence that a

0.10-inch monolithic polycarbonate windshield would not have shattered upon

impact with the 3.5- to 4-pound vulture––since it did not shatter upon impact

with fifty pounds of lead traveling at the same or greater velocity as the

vulture and in a more dangerous, downward angle of attack than the vulture.

4. Use of a Safer

Alternative Design Windshield

Would Not Impair the

Bell 407’s Utility

In 1999, after only two months of work, Bell

produced and installed a 0.10-inch monolithic polycarbonate windshield in a

Bell 407 for a company called Air Logistics. Although Bell asserted at trial that

to accomplish this feat would require the addition of hundreds and hundreds of

pounds of structure to the Bell 407, altering the utility of the Bell 407 by

changing it from a lightweight Part 27 helicopter into a heavier, less maneuverable

Part 29 helicopter, the evidence conclusively established that, in fact, Bell

made no structural changes to the Bell 407 in order to install the 0.10-inch

monolithic polycarbonate bird-impact resistant windshield. [45]

Additionally, Bell did not inform Air Logistics of any of the concerns Bell

expressed at trial—that the 0.10-inch monolithic polycarbonate bird-impact

resistant windshield in the Bell 407 would push through into the Bell 407’s

cockpit in the event of a bird strike. [46]

D.

Application of the No-Evidence Standard of Review

In short, even excluding Hinds’s

testimony, more than a scintilla of evidence exists supporting every fact that

the jury was required to find in question 6 to support the safer alternative

design element of the windshield design defect claim. Considering all of the

above evidence favorable to the jury’s safer alternative design finding because

a reasonable factfinder could, and disregarding the sometimes contrary and

conflicting evidence propounded by Bell’s long-time employees and experts

because a reasonable factfinder could, more than a scintilla of evidence exists

supporting the jury’s finding that a safer alternative windshield design

existed for the Bell 407 in 1997. See Cent. Ready Mix Concrete Co. ,

228 S.W.3d at 651 ; City of Keller, 168 S.W.3d at 807 .

The above evidence—that prior to 1997,

Bell did manufacture numerous bird-impact resistant windshields; that in 1994,

Bell developed a coating that solved its problems with polycarbonate

windshields; that in 1976, Bell was able to design and manufacture a

bird-impact resistant windshield for the Bell 222 to meet European bird-strike

standards; that Bell successfully made a 0.10-inch polycarbonate bird-impact

resistant windshield for the Bell 407 in 1999 within two months after it began

its attempts; and that Bell ultimately did not make any structural changes to

the Bell 407 in order to install a 0.10-inch polycarbonate bird-impact

resistant windshield in a Bell 407—constitutes more than a scintilla of

evidence that it was technologically feasible in 1997 for Bell to manufacture a

0.10-inch monolithic polycarbonate bird-impact resistant windshield for the

Bell 407 by the application of existing or reasonably achievable scientific

knowledge. See Uniroyal Goodrich Tire Co. , 977 S.W.2d at 337 (holding

testimony that competitors were already using the safer alternative design and

the fact that the company switched to the safer alternative design one year

after the accident was evidence of its feasibility); Temple EasTex, Inc. v.

Old Orchard Creek Partners, Ltd. , 848 S.W.2d 724 , 746–48 (Tex. App.—Dallas

1992, writ denied) (holding that evidence of actual use of a safer design by

the defendant or others at the time of manufacture is admissible on the issue

of defective design and is strong evidence of feasibility). More than a

scintilla of evidence also exists that a polycarbonate windshield could have

been made economically as early as the 1970s; Bell’s own expert testified that

cost was not an issue with a material as inexpensive as polycarbonate. Because

all of the experts agreed, and even Bell’s testing confirmed, that a 0.10-inch

monolithic polycarbonate windshield or a 0.14-inch stretched acrylic windshield

would have caused the 3.5- to 4-pound black vulture either to bounce or glance

off of the windshield, to merely crack the windshield, or to penetrate the

windshield in a liquefied form or in pieces, all of which would have prevented

the occurrence in question, more than a scintilla of evidence exists that

either of the safer alternative design bird-impact resistant windshields would

have significantly reduced the risk of the occurrence in question. See Bryant

v. Giacomini, S.p.A ., 391 F. Supp. 2d 495, 501 (N.D. Tex. 2005)

(recognizing that defendant’s expert’s admission that alternative design

reduced risk was sufficient to allow jury to reasonably conclude that existence

of safer alternative design was economically and technologically feasible).

Bell’s subsequent success in manufacturing and installing a polycarbonate

windshield in the Bell 407 without adding any structural weight to the

helicopter is more than a scintilla of evidence that a 0.10-inch monolithic

polycarbonate bird-impact resistant windshield would not, and in fact did not,

jeopardize or diminish the utility of the Bell 407. See Allen v. W.A.

Virnau & Sons, Inc ., 28 S.W.3d 226 , 232–33 (Tex. App.—Beaumont 2000,

pet. denied) (holding that “the documentary evidence submitted by appellants

shows the same model tractor with the ROPS [Rollover Protective Structure] and

the seat belt as standard equipment is some evidence, certainly more than a

scintilla, that the combination system did not jeopardize or diminish the

utility of the tractor”). Because, even excluding Hinds’s testimony the

evidence is legally sufficient to support submission to the jury of the safer

alternative design element of the windshield design defect claim, I would

overrule Bell’s second issue.

III.

C onclusion

I would hold that the evidence is legally

sufficient to support submission to the jury of the safer alternative design

element of the windshield design defect claim in question 6. Because the

Majority Opinion holds otherwise, I respectfully dissent.

I concur with the Majority Opinion’s

disposition of Bell’s other issues and of Appellants’ issues.

SUE WALKER

JUSTICE

DELIVERED: August 31, 2011

[1] Appellants-Cross

Appellees are Lourdes Maria Vargas de Damian, individually, as next friend to

Nicole Denisse Damian Vargas, and as representative of the estate of Demetrio

Damian Chen, deceased; Guillermo Jose Gasperi, individually and as

representative of the estate of Gloria Gasperi, deceased; Carla Gasperi,

individually and as representative of the estate of Gloria Gasperi, deceased;

Angela Cecilia Lassen de Gasperi, as legal and personal representative of the

estate of Gloria Gasperi; Ricardo Adolfo Garay Barrios; Lorenzo Romagosa

Acrich; and Ida Romagosa de Aranjo. We refer to Appellants-Cross Appellees

collectively as Appellants.

[2] We refer to

Appellee-Cross Appellant as Bell.

[3] The parties do

reference Geier v. American Honda Motor Co. , 529 U.S. 861 , 120 S. Ct.

1913 (2000) and City of Burbank v. Lockheed Air Terminal, Inc. , 411 U.S.

624 , 93 S. Ct. 1854 (1973), but neither case addresses the issue presented

here. In Geier , the Supreme Court held that a common law tort action

for negligent failure to equip an automobile with an airbag was preempted

because it conflicted with the applicable federal law. 529 U.S. at 881 B 82, 120 S. Ct. at

1925 B 26. In City of

Burbank , the Supreme Court held that the field of aviation noise control is

preempted but did not address the field of aviation safety. 411 U.S. at 638 B 40, 93 S. Ct. at 1862 B 63.

[4] Bell and Appellants

each filed a translated copy of article 1706. Although the translations differ

slightly, the differences are not material to our analysis.

[5] Appellants = translation of

article 1706 states:

The civil action to

claim indemnification for calumny or slander or to demand civil liability for

the obligations derived from guilt or negligence referred to in Article 1644 of

the Civil Code, prescribes within the term of one (1) year, counted from the

date it came to the knowledge of the offended party.

If a

criminal or administrative action is started opportunely for the facts foreseen

in the above paragraph, the prescription of the civil action shall be counted

from the execution of the criminal judgment or the administrative regulation,

as the case may be.

[6] We review a summary

judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,

289 S.W.3d 844, 848 (Tex. 2009). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, disregarding evidence contrary to the

nonmovant unless reasonable jurors could not, indulging every reasonable

inference and resolving any doubts in the nonmovant = s favor. Id. ;

20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). A defendant who

conclusively negates at least one essential element of a cause of action is

entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794 , 798 (Tex. 2004); see

Tex. R. Civ. P. 166a(b), (c).

[7] Guillermo also

alleged in the original petition that he was a legal representative of Gloria = s estate, but neither

Bell nor Appellants address Guillermo = s capacity to represent Gloria = s estate. Thus, we

do not address whether Guillermo was a legal representative of Gloria = s estate or the

timeliness of any claim Guillermo asserted on behalf of Gloria = s estate.

[8] The jury charge asked

the jury to determine whether the negligence, if any, of Bell, Captain Damian,

Captain Garay, or Gloria caused Gloria = s injuries and the sum of money that A would have fairly and

reasonably compensated Gloria Gasperi @ for pain and mental anguish. The jury

charge does not contain a question, definition, or instruction concerning the

capacity of any person to represent Gloria = s estate.

[9] Bell did object to

the damages question assuming capacity but stated only that the survival claim A is barred by the

Statute of Limitations, based on the late filing by Angela Lassen as the

representative of the estate of Gloria Gasperi. @ Bell did not object to Carla or

Angela = s capacity to

represent Gloria = s estate.

[10] In fact, although

Bell submitted proposed questions, definitions, and instructions to the trial

court, Bell = s proposed questions,

definitions, and instructions did not include any proposed questions,

definitions, or instructions concerning the capacity of a representative of

Gloria = s estate.

[11] Lorentz conceded in

the court of appeals that she was not an heir of the estate. See Lorentz v.

Dunn , 112 S.W.3d 176, 179 (Tex. App. C Fort Worth 2003, pet. granted), rev = d , 171 S.W.3d 845

(Tex. 2005) ( A Appellant further

concedes that she did not qualify as an heir to the estate. @ ).

[12] In this regard, we

note that although Bell had the obligation to secure a jury finding on its

limitations defense, Bell did not submit a proposed jury question inquiring

whether a representative of Gloria = s estate sought appointment as administrator

within a reasonable time. See Woods v. William M. Mercer, Inc. , 769

S.W.2d 515, 517 (Tex. 1988) ( A The statute of limitations is an affirmative defense[,

and t]he defendant thus bears the initial burden to plead, prove, and secure

findings to sustain its plea of limitations. @ ) (citing Tex. R. Civ. P. 94 and Metal

Structures Corp. v. Plains Textiles, Inc. , 470 S.W.2d 93, 99 (Tex. Civ.

App. C Amarillo 1971, writ

ref = d n.r.e.). Thus, to

the extent Bell contends that the survival claim is barred by the statute of

limitations because an estate representative was not appointed administrator

within a reasonable time, we overrule that portion of Bell = s third issue because

Bell did not preserve the argument for appellate review. See Tex. R.

Civ. P. 278 ( A Failure to submit a

question shall not be deemed a ground for reversal of the judgment, unless its

submission, in substantially correct wording, has been requested in writing and

tendered by the party complaining of the judgment. @ ); Tex. R. App. P.

33.1(a). Because the issue has not been preserved, we express no opinion as to

whether an estate representative must acquire capacity to represent the estate

within a reasonable time.

[13] As discussed above,

Bell failed to preserve the issue of whether Carla in fact had capacity to

represent Gloria = s estate by failing

to object to the jury charge question assuming capacity.

[14] Bell also cites this

court = s opinion in McAdams

v. Capitol Products Corp. , 810 S.W.2d 290 (Tex. App.––Fort Worth 1991, writ

denied) (op. on reh = g) for the

proposition that the survival claims are time-barred because Carla = s acquisition of

capacity did not relate back to her pre-limitations lack of capacity. McAdams

was decided before Lorentz and Lovato and reached a contrary

result. See id. at 293. And in Lorentz , the supreme court

reversed this court = s opinion that relied

on McAdams as authority. See Lorentz , 171 S.W.3d at 854–56; Lorentz ,

112 S.W.3d at 179 . Because we are unable to distinguish McAdams from Lorentz

and Lovato , we believe McAdams was implicitly overruled by Lorentz

and Lovato . Compare Lorentz , 171 S.W.3d at 854–56, and Lovato ,

171 S.W.3d at 846–47, 852–53 with McAdams , 810 S.W.2d at 291,

293 .

[15] The trial court

submitted a single, broad-form design defect question to the jury without

differentiating between design defects in the helicopter = s windshield, door

mounts, or restraint system.

[16] The Robinson

factors are (1) the extent to which the theory has been or can be tested, (2)

the extent to which the technique relies upon the subjective interpretation of

the expert, (3) whether the theory has been subjected to peer review or

publication, (4) the technique = s potential rate of error, (5) whether the underlying

theory or technique has been generally accepted as valid by the relevant

scientific community, and (6) the non‑judicial uses which have been made

of the theory or technique. 923 S.W.2d at 557 .

[17] Hinds acknowledged

that he had only twelve weeks of training in structural design of aircraft and

no training or experience in helicopter structural design.

[18] Other evidence

estimated there are 1,000 Bell 407’s in use in the United States.

[19] The Bell 430 is a

medium-weight helicopter with a maximum gross-weight of 8,400 pounds compared

to the maximum gross-weight of 5,500 pounds for the Bell 407. The Bell 430 is

bird resistant, and Allman testified that Bell did not design the Bell 407 to

be bird resistant because doing so A [t]urns [it] into a 430, @ that Bell is A taking a light helicopter

and making it smoother and faster, better for the performance, @ and that Bell is A not designing another

bird-strike 430. @ See Brockert v.

Wyeth Pharm., Inc. , 287 S.W.3d 760, 770 (Tex. App.––Houston [14th Dist.]

2009, no pet.) ( A The Texas Supreme Court

has held that a plaintiff cannot prove design defect by claiming that [a]

defendant should have sold an entirely different product. @ ) (citing Caterpillar,

Inc. v. Shears , 911 S.W.2d 379 , 384 B 85 (Tex. 1995)).

[20] Hinds further opined

that he thinks the entire industry knew that birds were a serious problem and

that the manufacturers of helicopters as well as the government were negligent

in ignoring the danger of bird strikes, but he has published no papers on the

subject nor encouraged the FAA or the industry to accept his opinions.

[21] Hinds testified that

he has tested eighth-inch polycarbonate windshields, but he admitted they are

twenty-five percent thicker, are not monolithic, and are actually much thicker

than an eighth-inch considering the other layers.

[22] The Sanchez

court stated, A [T]he plaintiffs did

not have to build and test an automobile transmission to prove a safer

alternative design. A design need only prove > capable of being developed. = @ Id. at 592.

[23] Relying on Sanchez

and other similar opinions, the dissent asserts that our holding that Hinds = s testimony is

conclusory and speculative is A premised on the erroneous premise that Hinds was required

to build and to test a prototype windshield. @ Dissent at 3 n.1. To the contrary, we

merely hold that Hinds, as an expert witness, was required to explain his

conclusions and link them to the facts of the case or the analysis he conducted

to support his opinion. We reference the many other deficiencies in Hinds = s testimony only to

illuminate the conclusory and speculative nature of his testimony that a 0.1

inch polycarbonate or 0.14 inch stretched acrylic windshield could be

successfully mated to a Bell 407 C and make it resistant to a 3.5 to four pound

bird traveling at 120 knots C by adding 1.5 inches to the mating structure around the

windshield.

[24] The Norman

court stated,

While the use of an

alternative design by another manufacturer may establish technological

feasibility, . . . as a matter of law, it does not establish economic

feasibility. . . . Evidence of use in the marketplace alone is not sufficient

to establish economic feasibility under Texas law. To establish economic

feasibility, the plaintiff must introduce proof of the cost of incorporating

this technology.

Id. (internal citations

omitted).

[25] Similarly, and as the

dissent points out, Bell built two helicopters about the size of the Bell 407

for the military C with either

polycarbonate or stretched acrylic windshields C in 1997 or 1998. See Dissent,

at 8–9 n.3. However, there is no evidence of whether the military helicopters

were capable of resisting a 3.5 to four pound bird like the one involved in

this case or whether they were resistant to only a 2.2 pound bird (like all of

the other bird-resistant helicopters discussed at trial). Further, there is no

evidence of the thickness of the military helicopter windshields or of their

design (such as monolithic or multi-layer) to determine whether they are at all

comparable to the alternative designs proposed by the Appellants in this case.

[26] The dissent points to

the Bell 222, the Bell 609, and the Bell UH-1 as evidence of a safer

alternative design, but none of these helicopters is remotely comparable to the

Bell 407. See Dissent, at 8–9 n.3. The Bell 222 is a 10,000 to

13,000-pound Part 29 helicopter, with a windshield that is A shaped entirely

different than the 407,” that is installed with bolts rather than adhesive, and

that was only resistant to a 2.2 pound bird rather than a bird in excess of 3.5

pounds. Allan Allman testified that comparing the Bell 430 (the current

version of the Bell 222) to the Bell 407 is like A comparing a grape to an orange. @

The

Bell 609 is a tilt-rotor aircraft C both an airplane and a helicopter C similar to the V-22

Osprey. Its windshield is multi-ply and 0.75 inches thick, including at least

one outer ply of 0.1 inch glass and two layers of 0.25 inch polycarbonate, and

it is more than seven times the thickness of the 0.1 inch polycarbonate design

proposed by the Appellants. Similarly, the UH-1 is three times larger than the

407, its structure is A made totally

different @ than the 407, and

its polycarbonate windshield is 0.25 inches, two and one-half times the

thickness of the polycarbonate design proposed by the Appellants.

Allman testified that these large helicopters are A in a different

category @ and that looking at

them as alternative designs A would be something like taking the front end off your 250

Ford truck and put[ting] it on a Honda Civic. @ As discussed above, the Appellants

cannot successfully prove the existence of a safer alternative design by

offering evidence that Bell should have built an entirely different product. See

Brockert , 287 S.W.3d at 770 (citing Shears , 911 S.W.2d at 384 B 85).

[27] We need not address,

and express no opinion concerning, the remainder of Bell = s second issue. See

Tex. R. App. P. 47.1.

[28] The jury heard

conflicting testimony about the single bird separated from the flock of birds.

For example, Captain Garay acknowledged that he never mentioned the flock of

birds in his written statement to Panamanian authorities, and Lorenzo testified

that he heard the pilots refer to the flock of birds but admitted that he did

not mention the flock of birds during his deposition testimony.

[29] Ross also agreed that

a hypothetical animation based on Captain Garay = s written statement would look nothing

like the animation that Ross prepared to explain his opinions to the jury.

[30] See generally Strange

v. Treasure City ,

608 S.W.2d 604 (Tex. 1980); Monkey Grip Rubber Co. v. Walton , 122 Tex.

185 , 53 S.W.2d 770 (Tex. 1932); Landreth v. Reed , 570 S.W.2d 486 (Tex.

Civ. App.––Texarkana 1978, no writ); Crawford v. Consol. Underwriters ,

323 S.W.2d 657 (Tex. Civ. App.––Beaumont 1959, writ ref = d n.r.e.).

[31] To the extent

Appellants contend rules 327(b) and 606(b) violate the equal protection clause

of the Fourteenth Amendment, we overrule that portion of Appellants = third point as

inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring brief to

contain a clear and concise argument for the contentions made with appropriate

citations to authorities).

[32] I also disagree with

the Majority Opinion’s holdings that Hinds was not qualified to testify

concerning a safer alternative windshield design and that his opinions were

speculative and conclusory or not based on sound engineering principles. All

of these holdings by the majority are premised on the erroneous premise that

Hinds was required to build and to test a prototype windshield. But no

requirement exists, however, that an expert in a design defect case have actually

designed and built the available safer alternative design in order to be

qualified to testify to a safer alternative design. See Gen. Motors

Corp. v. Sanchez , 997 S.W.2d 584, 592 (Tex. 1999) (holding expert qualified

to testify to safer alternative design, upholding jury finding of design

defect, recognizing that expert was qualified to testify concerning safer

alternative design, and stating that “the plaintiffs did not have to build and

test an automobile transmission to prove a safer alternative design”); Gen.

Motors Corp. v. Burry , 203 S.W.3d 514, 527 (Tex. App.—Fort Worth 2006, pet.

denied, pet. abated) (rejecting contentions that expert in design defect case was

not qualified because he “‘last worked in the automotive industry over twenty

years ago and has no experience with side airbags’” and “‘never ran a crash

test with side impact airbags, never designed a side impact airbag, never

designed a vehicle with side impact airbags, and never wrote any papers about

side impact airbags’”); see also MCI Sales & Serv., Inc. v. Hinton ,

272 S.W.3d 17 , 30–31 (Tex. App.—Waco 2008) (same, also holding “the Plaintiffs

did not have to build and test a prototype to prove a safer alternative

design”), aff’d , 329 S.W.3d 475 (Tex. 2010), cert. denied , 131 S.

Ct. 2903 (2011). Indeed, the Majority Opinion holds that Hinds’s testimony

constitutes no evidence specifically because it was not based on testing of a

0.14-inch stretched acrylic windshield or a 0.10-inch monolithic polycarbonate

windshield in a Bell 407. But I do not address these issues because, even

excluding Hinds’s testimony, more than a scintilla of evidence exists concerning

the safer alternative windshield design element of question 6 so that the trial

court did not err by submitting the question to the jury.

[33] Tom Gailey—Bell’s

expert on the structure of the Bell 407, a Bell employee who had worked for

Bell for twenty-three years at the time of trial—testified that in the early 1980s,

Bell manufactured and sold Bell 222 helicopters with bird-impact resistant windshields

in the United Kingdom because, at that time, the UK required bird-impact

resistant windshields. Gailey testified that he was not sure if the Bell 222

bird-impact resistant windshield was polycarbonate; “it may have been.” Since

1975, European regulations have required bird-impact resistant windshields on

helicopters weighing 6,000 pounds or more; the Bell 407 weighs 5,500 pounds.

Steven

Webster, Bell’s director of advanced technologies and processes, testified that

Bell began manufacturing the Bell 222 with the heated bird-proof window

assemblies in 1976 for sale in Europe but did not put that windshield in the

Bell 222s being sold in the U.S.

Gailey

testified that Bell had also manufactured a bird-impact resistant windshield

for the Bell 609; it was a “two-ply polycarbonate with an adhesive – it[’]s

called PVB adhesive—between the two plies of polycarbonate. And then there’s a

ply of tenth-inch glass on the outside, and it also has a layer of adhesive

between it and the outer layer of polycarbonate.” The polycarbonate layers of

the Bell 609 are each approximately one-fourth-inch thick, that is, 0.25 inches

thick. The entire bird-impact resistant windshield for the Bell 609 is 0.75

inches thick and weighs approximately thirty pounds per side of the front

windshield.

Webster

testified that in the 1970s, Bell also manufactured a UH-1 helicopter with a

0.25-inch monolithic polycarbonate windshield.

Steven

Scott Cline, a project engineer who had worked for Bell for twenty-eight years

at the time of trial, testified that in 1997 and 1998, Bell was manufacturing

bird-impact resistant windshields for military helicopters. The windshields

were made of stretched acrylic with a hard coating applied.

[34] Webster testified

extensively about the results of an “Abrasion Resistant Canopies” study (ARC

study) that Bell had conducted and concluded in 1994. The study worked with

coatings for windshields and documented Bell’s discovery of a coating for

polycarbonate that addressed the UV protection issues, the rain shedding

issues, the chemical resistance issues, and the scratching issues sometimes

encountered with the use of polycarbonate windshields. Webster testified:

Q. Okay. In your

ARC study in ’94, which was three years before this Bell 407 was manufactured,

you determined that you had coatings that would enhance UV protection, rain

shedding, chemical resistance and protection against scratching, didn’t you?

A. Yes.

Q. And that included

the coated polycarbonate, correct?

A. Yes.

Q. Okay. So in ’94,

you had a coating that you could put on, including polycarbonate, that was

satisfactory to you in dealing with these problems, didn’t you?

A. It addressed all

those problems, yeah, trying to make it better.

Q. Three years -- three

years before -- because those are your only criticisms of polycarbonate. So

y’all had that solved in ’94, three years before this helicopter that two of

these people’s family members died in was manufactured, correct?

.

. . .

A.

This

technology was available for many years.

Q. My point is, you

had a satisfactory coating that solved the criticisms you had for polycarbonate

three years before this aircraft was manufactured that these people crashed in,

correct?

A. It addressed

those issues, yes.

Q. Okay. So now all

that’s left is, would the polycarbonate have stopped the bird or not, correct?

A. I’m – I’m not –

I’m not going – I can’t answer those questions for you –

John Raffo, Appellants’ coatings expert, identified

several different coatings for polycarbonate that were available prior to 1997

and would have worked well on a 0.10-inch polycarbonate windshield for the Bell

407.

[35] According to Bell’s

expert Dr. Gary Thompson, the bird-impact resistant windshield that Bell placed

in the Bell 222 in 1976 weighed twenty-six pounds, only eighteen pounds heavier

than the existing as-cast acrylic windshield in the Bell 407.

Concerning

the weight of polycarbonate, one of Appellants’ experts Anthony Bosik, an

aeronautical engineer and principal in Bosik Consultants Limited, the company

that operates the National Research Council bird cannon, testified:

Q. Briefly, let’s

talk about the different weights between the materials, the substance. This is

still – we’re still in the 1976 report [the 1976 report prepared for the U.S.

Army was admitted into evidence as Plaintiffs’ Exhibit 104]. What would be

your response to the criticism that polycarbonate is much weightier and would

be much heavier?

A. It is not, it is

just slightly heavier.

Q. Okay?

A. As one can see,

12.7 versus 13.8.

Q. And this was known

back in at least since 1976, and has everyone really kind of known that all

along?

A. Yes.

The 1976 report

prepared for the U.S. Army contains the following abstract:

Bird impact results graphically

demonstrated that the polycarbonate prototype provided the superior resistance,

i.e., resistance to bird strikes at speeds up to 120 knots while the standard

acrylic windshield was incapable of defeating a bird strike at the UH-1 [a Bell

helicopter] cruising speed of 90 knots.

In general,

the superior mechanical properties and the flight worthiness of the coated

polycarbonate configuration have been demonstrated.

[36] Webster testified

that once Bell started working on it in 1999, they formed the Bell 407

polycarbonate bird-impact resistant windshield in about two months. Allan

Allman, a staff engineer who had worked for Bell for a total of thirty-eight

years at the time of trial, testified that in 1999, Bell had installed a

0.10-inch monolithic polycarbonate windshield in a Bell 407 and admitted that

there were no structural changes to the Bell 407 prior to installation of the

polycarbonate windshield.

Gailey

also testified that since the accident at issue in this case, Bell had manufactured

a Bell 407 with a polycarbonate windshield and that it had not required any

changes to the structure of the helicopter.

Webster

testified:

Q. Well, we’ve heard

in this case about, well, if you want to put a polycarbonate in a light

helicopter you’ve got all these structural issues. Tell me what structural

changes were made in the 407 that the military is flying around with right now

with a polycarbonate windshield in it?

A. Mr. Fisher, I can’t answer that.

Q. You can’t?

A. No, sir.

Q. But do you –

assume with me that that’s one of the issues in this case, that’s been made in

this case, is you can’t put polycarbonate in these things because it might come

out of the structure. It might – if it stops the bird, the whole windshield is

going to come out, you’re going to have to change the whole structure.

A. Not necessarily.

.

. . .

Q. But my point is

this: And that is, you can’t tell the jury that any structural changes had to

be made to the 407 to put the polycarbonate windshield in it, can you?

A. There were no

structural changes made to the OH-58D or the 407 in trying to put a

polycarbonate windshield in it.

[37] Concerning

the structural changes allegedly necessary to the Bell 407 to support a

bird-impact resistant windshield, Allman testified:

If you want to be able to take this load [a bird-impact

resistant windshield in a Bell 407] you’ve got to get it back to the middle.

You’ve got to take all the energy – they call it sheering out. So what you do

is you add a bunch of weight, which I have never calculated – and as I said in

my deposition hundreds and hundreds of pounds. I don’t know the exact weight

and – it’s a lot. Anyway, you take whatever that weight is, and you put it

here. And then you have to get that so it will support that bird windshield so

it will be bird proof.

Webster

intimated that the structure of the Bell 407 would have to be “beefed up” if

the existing 0.10-inch as-cast acrylic windshield were replaced with a

0.10-inch monolithic polycarbonate windshield, but he could not say what

structure needed to be “beefed up.”

[38] Raffo testified that

a polycarbonate windshield could have been made as early as the 1970s; a

monolithic polycarbonate replacement windshield for the Bell 407 could have

been manufactured by Sierracin for approximately $2,000 to $3,000. Raffo

testified that the cost of as-cast acrylic [the material used in the Bell 407

helicopter’s windshield] and polycarbonate are “roughly similar in costs.”

Bosik testified that “polycarbonate and as-cast acrylic are both the same

costs.” Webster testified that although Bell did “nothing” to develop a

polycarbonate windshield in the Bell 407 from 1976–1994, “cost was not a

factor” in Bell’s decision, “[e]specially on something as inexpensive as a

polycarbonate product.”

[39] Dr.

Warren Wandel, Bell’s accident reconstruction expert, agreed that it was

undisputed and that Bell’s experts agreed that had a 0.10-inch polycarbonate

windshield been in the Bell 407 at issue, the windshield would not have broken

when impacted by the vulture.

[40] Bosik

testified that “polycarbonate is able to absorb a lot more impact, because it

is more flexible. It deforms more during the impact and is therefore able to

absorb more of the energy than, let’s say, the acrylic.” Bosik opined that

polycarbonate transparencies are substantially more resistant to bird impact

than as-cast acrylic transparencies; “for a bolted edge situation the

polycarbonate gives you about three times the impact resistance of as-cast

acrylic,” and for a clamped edge situation, the impact resistance of a

polycarbonate frame is even significantly higher.

Raffo testified that “[p]olycarbonate is the most

impact-resistant plastic polymer that is used in aircraft transparencies. It’s

efficient because it has a good impact resistance at a thin thickness, which

means that the weight is reduced.” Polycarbonate windshields were used in the

F-16 starting in the mid-1970s.

[41] Raffo

testified that “[f]rom an impact point of view, as-cast acrylic is the least

resistant material. Stretched acrylic would be the next strongest material,

and polycarbonate would be the ultimate.”

[42] Bosik testified that

in 1978, he published a study on bird impacts on monolithic aircraft

windshields where he tested the velocity necessary for a bird to penetrate

as-cast acrylic, stretched acrylic, and polycarbonate windshields. His study

was introduced into evidence as Plaintiffs’ Exhibit 98. Based on the tests he

conducted, in the late 1970s Bosik participated in the development of a

mathematical equation to predict penetration velocity of these materials based

on the thickness of the material and the weight of the bird being fired at it.

Bosik read from a 1976 report that the U.S. Army had produced concerning tests

it had done on the Bell UH-1 helicopter and that it had provided to Bell in

1976. The report concluded that “[b]ird impact results graphically

demonstrated that the polycarbonate prototype provided the superior

resistance.” Based on the Army’s tests in 1976 and Bosik’s mathematical equation,

a 0.10-inch polycarbonate windshield would have defeated a 120-knot strike by a

four-pound bird.

Concerning

whether a stretched acrylic windshield design or a polycarbonate windshield

design would have in reasonable probability prevented the approximately

four-pound vulture from penetrating the windshield of the Bell 407, traveling

at a maximum speed of 120 knots in such a way that it struck and killed Captain

Damian or knocked him unconscious, Bosik testified:

Q. And what did you

conclude with respect to the penetration velocity of either stretched acrylic

or polycarbonate in this particular accident?

A. Basically the

stretched acrylic in the same thickness probably could have survived [a] 100

knot test. But stretched acrylic is a feasible material as well as far as the

windshield goes. The thickness would have to be increased a little bit from

what it is, to an estimated .14 inches.

Q. So for stretched

acrylic they’d only have to go from .1 to .14?

A. For polycarbonate

a .1 inch thick, which is the same thickness, would increase the penetration

velocity from about 60 or 70 to about 200 knots.

Q. So for the

polycarbonate material, as far as the thickness that we see here with respect

to the windshield, it – it could have been the same size?

A. Yes.

Q. And that was

feasible at the time this helicopter was manufactured?

A. Yes.

[43] Allman, one of Bell’s

staff engineers, was asked what would happen if a polycarbonate windshield was

placed in a Bell 407, a bird hit it, and the polycarbonate did absorb the

energy and prevent the bird from penetrating the windshield. He answered:

A. If you put a

large enough polycarbonate window and mount it on the Bell structure so that

the bird’s energy will be absorbed, that energy that it absorbs is past the

point that the structure can handle and it will buckle, then the windshield

will break loose, because the structure is given away underneath the load of

the windshield.

Q. So windshield

structure buckles and windshield breaks loose; is that fair?

A. Yes, sir.

Q. Okay. Now, tell

the jury every test that you’ve run, every equation you’ve done, every bird

Bell’s fired, you or Bell has fired at a tenth of an inch polycarbonate

windshield in a 407 structure.

A. Mr. Webster

answered that, and my answer will be the same. Is we have not done any

bird-strike tests.

.

. . .

Q. So wouldn’t you

agree, sir, that – that you or Bell have performed no tests, done no studies,

done no experiments to support the opinions that you’re giving today that the

windshield will come out?

A. We have done no

tests on the 407 to support that opinion.

[44] Bosik testified

regarding Bell’s testing in preparation for this litigation. He explained that

to form its opinion that a 0.10-inch polycarbonate windshield would not stay in

the windshield frame following a bird strike, Bell mated a polycarbonate square

to a square frame made of wood, hoisted a fifty-pound lead weight up by a

crane, and dropped it on the framed polycarbonate. The piece of polycarbonate

stayed intact but was pushed down through the wooden frame holding it. Bosik

explained that the load Bell used to do this test was improper because the lead

“in no way simulates a bird. . . . Because the consistency of it is not

correct. . . . For a first approximation of a bird, you would assume a liquid,

as opposed to a solid. So a bird is more like an orange than an apple.” Bosik

said that Bell did not perform the testing to ASTM’s standards for bird impact

testing “because they should be using a bird or a simulated bird and that

should be conducted at the right speed. In addition to that, it should be a

representative of structure and it should be conducted at the right attitude;

that is, the same flight path as the aircraft would be.” Additionally, Bell’s

testing utilized a wooden frame, rather than the steel-type frames used in the

Bell 407 and also no evidence exists that the mating with the wooden box

utilized an extra 1.5 inch interface as required by Hinds’s design.

Consequently, Bosik concluded, “I don’t think this test has any validity

whatsoever.”

Dr. Gary

Thompson testified for Bell that the bird in this case hit the Bell 407 with

2230 foot pounds of energy. He said that amount of energy is what Bell was

trying to replicate in its testing by dropping fifty pounds of lead on a square

of polycarbonate. Dr. Thompson testified:

Q. You’re from east

Texas. Did you ever hit lovebugs on your windshield?

A. Yes, I have.

Q. When you hit them

on your windshield, which way does the bug shoot up? Which way did the

starburst of the bug happen?

A. Typically goes up

with the air flow.

Q. It doesn’t stay

intact, obviously, right?

A. Most bugs will

not, no.

Q. Because bugs are

partially liquid, right?

A. Yes.

Q. Like a bird?

A. Yes.

Q. How much liquid

is in that 3.5 pound vulture?

A. I am not a

vulture expert, I couldn’t tell you that.

Q. Probably a lot

more than in this, say, lead sack that they have duct taped up, right there?

A. I would have to

agree with that, yes.

[45] Recall that Allman,

Gailey, and Webster, all testified that in 1999, Bell had installed a 0.10-inch

monolithic polycarbonate windshield in a Bell 407; no structural changes to the

Bell 407 were required prior to the installation of the windshield.

[46] Allman admitted that

although Bell had, subsequent to this crash, put a polycarbonate windshield on

a Bell 407 that was forwarded to Air Logistics, Bell had not warned Air

Logistics of Bell’s opinion that a bird strike would cause the window structure

to collapse and the windshield to enter the cockpit. He was then asked:

Q. So back in ’99,

you know, or you told this jury that it[’]s common sense to know that if a bird

hits a polycarbonate it’s going to knock it out of the structure and it’s going

to be potentially dangerous or fatal to the pilot. You sent it down to Air

Logistics, had them fly around in it, you didn’t tell them about it, and you

didn’t even change the structure on the 407 for that first windshield, did you?

.

. . .

A. When we sent it down to Air Logistics, we did not

and are not sure now that it endangers anyone.