Sico North America, Inc. v. Willis (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Boyce)
(
choice of law when not agreed to in contract, statute of repose, products liability, defective folding
table used in schools, amputation of finger caught between panels)  
AFFIRMED: Opinion by
Justice Boyce   
Before Justices Anderson, Guzman and Boyce  
14-08-00158-CV  Sico North America, Inc v. James R. Willis Individually, and as Next Friend of John
Willis
Appeal from 334th District Court of Harris County
Trial Court Judge:  
Sharon McCally

M E M O R A N D U M   O P I N I O N

In this products liability action, Sico America, Inc.[1] appeals a judgment entered on a jury verdict in
favor of James R. Willis, individually and as next friend of John Willis.  In two issues, Sico challenges
(1) the district court's decision to apply Minnesota law instead of the Texas statute of repose; and (2)
the legal sufficiency of the evidence to support the jury's negligence finding.  We affirm.

Background

This products liability case involves a wheeled folding table used at a school.  The table is a “Pacer"
model manufactured in 1985 by Sico, a Minnesota corporation with its principal place of business in
Minnesota.  Humble Independent School District purchased the Pacer table from an equipment dealer
in 1986.

The Pacer table is designed to be moved on wheels in a folded upright position.  When unfolded, two
hinged halves fit tightly together to form a six-foot-long rectangular table.  The table features a lock
bar; when engaged, the lock bar is supposed to catch as the table unfolds and keep the halves upright
in a tee-pee position.

On May 2, 2003, a Deerwood Elementary School teacher asked 11-year-old John Willis and another
student to move the Pacer table to a storage room.  As Willis pushed the table in a folded upright
position through the storage room door, the table began opening and pinched Willis's right ring finger
between the two halves.  The lock bar did not catch, which allowed the table to slide rapidly all the way
down to the fully open position.  A portion of Willis's finger was amputated when the two table halves
closed on it.

John Willis's father sued Sico in Texas district court in 2005 and asserted multiple claims in connection
with John's injury.  Suing individually and as John's next friend, John's father alleged claims for design
defect, marketing defect, and negligence.  Sico designated Humble Independent School District as a
responsible third party.

Sico filed a motion for summary judgment asserting that Willis's suit is barred by the Texas statute of
repose.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.012 (Vernon Supp. 2008).  The parties agree
that Willis's claims are foreclosed if the Texas statute of repose applies because suit was filed more
than 15 years after the table was sold.  See id.[2]

Willis asserted that Minnesota law should apply because the table was designed, manufactured, and
marketed there.  Minnesota has no statute of repose; instead, it has a “useful life" statute.  See Minn.
Stat. § 604.03(1) (2008) (“In any action for the recovery of damages for personal injury, death or
property damage arising out of the manufacture, sale, use or consumption of a product, it is a defense
to a claim against a designer, manufacturer, distributor or seller of the product or a part thereof, that
the injury was sustained following the expiration of the ordinary useful life of the product.").

The district court denied Sico's motion for summary judgment.  Sico re-urged its request to apply the
Texas statute of repose shortly before trial.  The district court again denied Sico's request, holding that
Minnesota's useful life statute applied.

After a three-day trial, the jury answered “no" to questions asking whether there was a design defect in
the table or a defect in Sico's marketing that was a producing cause of Willis's injury.  The jury
answered “yes" to a question asking whether negligent conduct by Sico and Humble Independent
School District proximately caused Willis's injury, and awarded damages of $10,000 for past pain and
anguish; $30,000 for future pain and anguish; $2,000 for past disfigurement; $7,500 for future
disfigurement; $5,000 for past physical impairment; and $12,000 for future physical impairment.  The
jury attributed 60 percent of the injury-causing conduct to Sico and 40 percent to Humble Independent
School District.  The jury also answered “no" to a question asking if the Pacer table had exceeded its
“useful life" when Willis's injury occurred.[3]  The district court signed a final judgment in conformity
with the jury's verdict.

Sico raises two issues on appeal.  First, it asserts that the district court erred in failing to apply the
Texas statute of repose to Willis's claims.  Second, Sico argues that there was no evidence to support
the jury's “yes" answer as to Sico's negligence.

Analysis

I.         Choice of Law

Determining which state's law governs is a question of law for the court to decide.  Torrington Co. v.
Stutzman, 46 S.W.3d 829, 848 (Tex. 2000).  Therefore, we review de novo the district court's decision
to apply the Minnesota useful life statute instead of the Texas statute of repose.  Minnesota Mining &
Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex. 1996).

When the parties have not otherwise agreed by contract to a valid choice of law clause, the law of the
state with the most significant relationship to the particular substantive issue will be applied.  Duncan v.
Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984).  Texas has adopted the standards and factors
set forth in sections 6 and 145 of the Restatement (Second) of Conflict of Laws (1971) to determine
choice of law in tort cases.  See Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979).

“Section 6 sets out the general principles by which the more specific rules are to be applied."  
Gutierrez, 583 S.W.2d at 318.  In turn, “Section 145 lists factual matters to be considered when
applying the principles of Section 6 to a tort case . . . ."  Id. at 319.  On appeal, Sico invokes these
provisions to argue that Texas's statute of repose governs this case because a statutory directive
requires the application of Texas law under section 6(1).  Alternatively, Sico argues that the factors
under sections 6(2) and 145 point to the application of Texas law.  We address each contention in turn.

A.        Statutory Directive

Section 6(1) states that “[a] court, subject to constitutional restrictions, will follow a statutory directive of
its own state on choice of law."  Restatement § 6(1).  Sico argues on appeal that section 71.031 of the
Texas Civil Practice and Remedies Code establishes a statutory directive to apply Texas law here.[4]

Sico did not raise this statutory directive argument in the district court.  To the contrary, Sico
affirmatively and repeatedly disclaimed the existence of a statutory directive to apply Texas law.  Sico
told the district court that “[t]here is no statutory directive, so choice of law must be determined by
applying the 'most significant relationship' analysis."  We decline to address an argument that was not
asserted - and was affirmatively disclaimed - in the district court.  See, e.g., Holland v. Hayden, 901 S.
W.2d 763, 765 (Tex. App. - Houston [14th Dist.] 1995, writ denied); Tex. R. App. P. 33.1(a).

B.        Most Significant Relationship

In applying the most significant relationship test, this court first must identify the relevant factors.

Under section 6(2), the following factors are relevant to the choice of law determination:

(a)       the needs of the interstate and international systems,

(b)       the relevant policies of the forum,

(c)       the relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue,

(d)       the protection of justified expectations,

(e)       the basic policies underlying the particular field of law,

(f)        certainty, predictability and uniformity of result, and

(g)       ease in the determination and application of the law to be applied.

Restatement § 6(2)(a)B(g).

Section 145 lists the factual matters to be considered when applying section 6 to a tort case.  “The
rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the
state which, with respect to that issue, has the most significant relationship to the occurrence and the
parties under the principles states in § 6."  Restatement § 145(1).  “These contacts are to be
evaluated according to their relative importance with respect to the particular issue."  Id. § 145(2).   In
that regard, the court should consider the following factors:

(a)       the place where the injury occurred,

(b)       the place where the conduct causing the injury occurred,

(c)       the domicile, residence, nationality, place of incorporation, and place of business of the parties,
and

(d)       the place where the relationship, if any, between the parties is centered.  

Restatement § 145(2).  The number of contacts is not determinative; rather, the contacts must be
evaluated in light of state policies underlying the particular substantive issue.  Duncan, 665 S.W.2d at
421.

Beginning with the section 145 factors, we note the injury occurred in Texas to Willis, a Texas
resident.  Sico is a Minnesota corporation with its principal place of business in Minnesota.  It is
undisputed that the Pacer table at issue was designed, manufactured, and introduced into the stream
of commerce in Minnesota.  As discussed more fully below, there is no “relationship" between Willis
and Sico.

Sico argues for the application of the Texas statute of repose based in large part on Willis's Texas
residency and the location of the accident in Texas.  Texas no longer uses the common law doctrine of
lex loci delicti, under which the place of injury determined choice of law.  Gutierrez, 583 S.W.2d at 318.  
Place of injury now is just one of multiple factors to be considered.  More importantly, place of injury is
not an important contact when - as in this case - the place of injury is fortuitous.  See Torrington Co.,
46 S.W.3d at 849 (citing Restatement § 145 cmt. e).

Sico has sold more than 220,000 Pacer tables since 1969.  Sico does not sell directly to end-users in
the educational market; instead, Sico sells its products to merchandise dealers who in turn sell to
individual buyers and school districts within their regions.  Customers who call Sico's 800 telephone
number are directed to a dealer. This evidence establishes both (1) the lack of any relationship
between Sico and Willis that could be “centered" in Texas; and (2) the fortuity of the place of injury in
this case.  Under these circumstances, the place of injury has little bearing on the analysis.  See
Torrington Co., 46 S.W.3d at 849.  Similarly, Willis's Texas residency is not dispositive.  See Doctor v.
Pardue, 186 S.W.3d 4, 12 (Tex. App.- Houston [1st Dist.] 2005, pet. denied) (applying Wisconsin law
governing charitable immunity in connection with injuries sustained by Texas resident; “[t]he record
indicates that volunteers from all over the country participated in the [defendant's] . . . convention and
air show, and any expectation by [the defendant] . . . that it might be immune from liability for injuries
sustained to participants, depending upon the residence of the participants who were injured, would be
unreasonable.").

A more significant factor in this case is the place where Sico's injury-causing conduct occurred.  See
Restatement § 145(2)(b).  “In applying the factual matters to be considered under section 145 . . . 'the
rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the
state which, with respect to that issue, has the most significant relationship to the occurrence and the
parties.'"  Crisman v. Cooper Indus., 748 S.W.2d 273, 277 (Tex. App.- Dallas 1988, writ denied)
(original emphasis) (quoting Restatement § 145(1)).  As the Dallas Court of Appeals concluded, “[T]he
'issue in tort' between appellant and appellee in the present case is the design, manufacture, and
placing in the stream of commerce" of a product alleged to have caused injury.  Crisman, 748 S.W.2d
at 277B78; see also Greenberg Traurig of New York v. Moody, 161 S.W.3d 56, 73 (Tex. App.- Houston
[14th Dist.] 2004, no pet.) (“Generally, the state where the act or omission occurs has a real interest in
applying its law in order to implement the state's regulatory policy as reflected in that law.").  The
court's conclusion in Crisman applies with equal force here.

The Pacer table was designed and manufactured in Minnesota by a Minnesota corporation having its
principal place of business in Minnesota.  While Sico vigorously disputes that its table is defective, Sico
does not dispute that the table entered the stream of commerce when it was shipped from Minnesota
after being manufactured there; according to Sico, its product “was not defective upon its entry into the
Minnesota stream of commerce."  There is no contention and no evidence that the Pacer table was
substantially changed after Sico shipped it from Minnesota.  Therefore, this factor supports the
application of Minnesota law.  Cf. Perry v. Aggregate Plant Prods. Co., 786 S.W.2d 21, 24 (Tex. App.-
San Antonio 1990,  writ denied) (defendant's action in placing cement silo into stream of commerce in
Texas where it was designed and manufactured was a factor supporting application of Texas law).

Taken as a whole, the section 145 factors point to the application of Minnesota's useful life statute.  
The Texas situs of injury is fortuitous.  Willis and Sico had no relationship centered in Texas or
anywhere else.  The “issue in tort” is a Minnesota corporation's conduct in designing, manufacturing,
and placing into the stream of commerce a Pacer table that injured a student.  See Crisman, 748 S.W.
2d at 277B78.  All of Sico's conduct germane to this “issue in tort" occurred in Minnesota.

The Minnesota focus of Sico's conduct pertaining to the “issue in tort" dovetails with analysis of the
policy factors identified in section 6.  Minnesota has a policy interest in promoting the responsibility of
Minnesota companies that operate in Minnesota to design, make and distribute products.  See
Danielson v. National Supply Co., 670 N.W.2d 1, 8-9 (Minn. App. 2003); Fluck v. Jacobson Mach.
Works, Inc., No. CX-98-1899, 1999 WL 153789 at *4 (Minn. App. March 23, 1999) (not released for
publication).  This point is illustrated by Fluck, in which the Minnesota Court of Appeals refused to
apply the Colorado statute of repose to a claim against a Minnesota corporation that designed,
manufactured and placed its product into the stream of commerce in Minnesota.  Fluck, 1999 WL
153789 at *1.  The product injured a Colorado resident in an accident that occurred in Colorado.  Id.  
In Fluck, as in this case, applying the Minnesota useful life statute allowed the case to proceed;
applying Colorado's seven-year statute of repose would have barred the claim.  The Minnesota Court
of Appeals concluded as follows:  “[W]e can find no basis for a Minnesota corporation manufacturing a
product in Minnesota to have the benefit of the protections of a statue of repose promulgated in
Colorado."  Id. at *4.

Sico points to Texas's policy interest in establishing a measure of repose for product manufacturers
and sellers, and posits that the statute serves as an inducement to conduct business in Texas.  See
Burleson v. Liggett Group Inc., 111 F. Supp. 2d 825, 829 (E.D. Tex. 2000).  This contention does not
go as far as Sico would suggest.  Although the Minnesota useful life statute's approach differs from a
statute of repose establishing a definite cut-off date beyond which litigation cannot be pursued, the
underlying concept is similar in that the defense is not tied to accrual of a particular litigant's cause of
action.  Cf. Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261, 263 (Tex. 1994)
(“Unlike traditional limitations provisions, which begin running upon accrual of a cause of action, a
statute of repose runs from a specified date without regard to accrual of any cause of action" and may
“potentially cut off a right of action before it accrues").

The differences identified in the operation of the Texas statute of repose and the Minnesota useful life
statute do not mean that Texas's policy goals are being subordinated or thwarted.  “Generally
speaking, application of another jurisdiction's laws is not contrary to the forum state's fundamental
public policy merely because application of the other state's law leads to a different result from the
result that would be obtained if the forum state's law were applied."  Nexen Inc. v. Gulf Interstate Eng'g
Co., 224 S.W.3d 412, 421 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (applying Alberta statute of
repose rather than Texas statute of repose pursuant to contractual choice of law provision).  “[I]f the
public policies in the forum state and [another state] . . . 'are the same, different approaches do not
contravene [the policies] just because one [approach] is somewhat stricter than the other.'" Id. at  421
(quoting Chesapeake Oper., Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 178 (Tex. App.-Houston
[14th Dist.] 2002, no pet.)).  

“[T]he fact that the other state's law differs materially from that of the forum state does not itself show
that application of the other state's law would offend Texas public policy."  Nexen, Inc., 224 S.W.3d at
421.  Sico cannot be surprised or unfairly prejudiced by the application of a statute enacted by the
state in which Sico is incorporated and manufactures its products.  See Doctor, 186 S.W.3d at 12 (not-
for-profit charitable corporation incorporated under Wisconsin law “could have no justified expectation”
that it would be governed by Texas charitable immunity statute in connection with liability arising from
corporation's activities in Wisconsin).

Upon review of the pertinent contacts and the respective interests of Minnesota and Texas, we
conclude that Minnesota and Minnesota law have the most significant relationship to the particular
substantive issue here.  Therefore, the district court did not err by applying the Minnesota useful life
statute in this case.  Sico's first issue is overruled.

II.        Legal Sufficiency

Sico next challenges the legal sufficiency of the evidence to support the jury's “yes" answer to the
negligence question.

When analyzing legal sufficiency of the evidence, we must consider the evidence in the light most
favorable to the finding at issue and indulge every reasonable inference that would support it.  See
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  If the evidence at trial would enable
reasonable and fair‑minded people to differ in their conclusions, then the finder of fact must be allowed
to do so.  See id.  We must credit favorable evidence if a reasonable fact finder could do so, and
disregard contrary evidence unless a reasonable fact finder could not do so.  See id.  We cannot
substitute our judgment for that of the fact finder if the evidence falls within this zone of reasonable
disagreement. See id.

A.        Interplay of Answers to Liability Questions

We first address Sico's argument concerning the interplay of the jury's answers to the liability
questions.  Quoting Toshiba International Corporation v. Henry, 152 S.W.3d 774, 784 (Tex. App.-
Texarkana 2004, no pet.), Sico contends that “it is not 'logical' to hold a manufacturer liable for
negligence when the product is not defective."

As a threshold matter, Sico runs afoul of Texas procedure when it argues that the jury's “no" answers
on design and marketing defect are incompatible with - and thus foreclose - a “yes" answer on
negligence.  While Sico does not phrase it as such, this is a contention that the jury's answers
irreconcilably conflict.  See, e.g., Ford Motor Co. v. Miles, 141 S.W.3d 309, 315 (Tex. App.-Dallas
2004, pet. denied).  Sico did not object to the asserted conflict in the jury's answers under Texas Rule
of Civil Procedure 295 before the jury was discharged.[5]  Sico's contention is unavailing in any event.  
The remedy for conflicting jury findings is a new trial - not the take-nothing judgment Sico asks this
court to render on appeal.  See id.[6]

Putting aside the proper remedy for conflicting jury findings, Sico's argument is problematic for another
reason.  Sico's argument assumes that the jury's “no" answers to the design and marketing defect
questions are equivalent to affirmative findings that the Pacer table lacked defects.  This assumption is
unwarranted.  See Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986)
(jury's failure to find breach of contract meant the plaintiffs failed to carry burden of proof; it did not
establish that the defendant substantially performed the contract); Cullins v. Foster, 171 S.W.3d 521,
536B37 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (“If the jury makes a negative finding in
answer to a question, it means the party with the burden of proof has failed to carry its burden.");
Blizzard v. Nationwide Mut. Fires Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ) (“the
jury's negative answer does not establish the contrary of the question asked").  The jury's “no"
answers to design and marketing defect questions do not conclusively establish the absence of
defects and do not demonstrate the absence of legally sufficient evidence to support a “yes" answer to
a separate negligence question.

Examined in this context, Toshiba International Corporation does not support Sico's no-evidence
challenge or its request for rendition of a take-nothing judgment on appeal.

“Toshiba manufactured and sold to Alcoa an inverter or controller that Alcoa integrated into a larger
system."  Toshiba Int'l Corp., 152 S.W.3d at 777.  The inverter itself functioned as designed and was
not defective; the plaintiff was injured when his pants became entangled in the larger machine into
which Alcoa had installed the non-defective Toshiba inverter.  Id. at 777-78.  The jury uniformly
answered “yes" to separate liability questions based on design defect, marketing defect, and
negligence.  Id. at 777.  The appellate court concluded as a matter of law that Toshiba could not be
liable under a design defect theory as the seller of a non-defective component that was incorporated
into a larger defective product.  Id. at 779-83.  The appellate court also rejected liability under a
marketing defect theory because “Toshiba, as a component seller, did not have a duty to warn of the
potential dangerous condition dependent on the nature of integration into a system designed and
assembled by another."  Id. at 784.

Having concluded that the plaintiff's design defect and marketing defect theories failed as a matter of
law as to the manufacturer of a non-defective component, the court addressed the remaining
negligence claim against Toshiba.  “We have held that, since the inverter was a component of a larger
system of which Toshiba had no participation in the design, Henry's injuries were not the result of a
design defect or a marketing defect for which Toshiba is responsible."  Id. at 785.  “Before a
negligence theory can be utilized in a products liability case, there must be proof of a defect in the
product."  Id.  “Because there is no defect for which Toshiba is responsible, it necessarily follows that
the negligence theory cannot be upheld."  Id.

Unlike the present case, these statements in Toshiba International Corporation were made after the
court already had concluded that liability under design defect and marketing defect theories was
foreclosed as a matter of law based on the record.  The Texarkana Court of Appeals was not asked to
- and did not - treat “no" answers to jury questions on design defect and manufacturing defect theories
as affirmative findings that the product at issue was free of defects.

Additionally, the court in Toshiba International Corporation included an important qualification when
making its observations about the interplay of strict products liability and negligence theories:  “This
assumes there is no other potentially negligent conduct in such case."  Id. at 784; see also Miles, 141
S.W.3d at 315 (“This analysis applies when a defective product theory encompasses and subsumes
negligence theory, that is, when the allegations and evidence are directed to whether the product is
'unreasonably dangerous' and no other potentially negligent conduct is alleged or the subject of
evidence") (citing Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253, 257 & n.8 (5th Cir.
1988)); Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980) (court cannot strike down
jury answers based on asserted conflict if there is any reasonable basis upon which they can be
reconciled).

Unlike the circumstances presented in Toshiba International Corporation, the evidence here
addresses negligent conduct by Sico that is distinct from the asserted design and marketing defects.

B.        Legal Sufficiency of Evidence to Support a “Yes" Answer on Negligence

Strict products liability focuses on whether the product was sold in a defective condition that was
unreasonably dangerous to the user; the degree of care taken is irrelevant if the product is
unreasonably dangerous.  Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex. 1978).  
Negligence, in contrast, focuses on whether the manufacturer exercised ordinary care in design and
production of the product at issue.  Caterpillar Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995).  

A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2)
a breach of that duty, and (3) damages proximately caused by the breach.  D. Houston, Inc. v. Love,
92 S.W.3d 450, 454 (Tex. 2002).

Willis's products liability claim was based on defective design and defective marketing theories.  He
asserted that Sico's design was defective because the lock bar did not keep the Pacer table in a tee-
pee position as it started to unfold, and because the fully unfolded table lacked a gap between the two
halves that would have prevented pinching injuries.  Willis asserted that Sico's marketing was defective
because the warnings provided with the table were inadequate and were not visible when the table was
being used.

As pleaded, Willis's negligence claim focused solely on Sico's conduct in designing the Pacer table
and providing allegedly inadequate warnings.  However, testimony also was presented without
objection at trial addressing Sico's failure to test the lock bar. [7]

Walter Wagner, the custom products and legal affairs manager for Sico, testified as Sico's corporate
representative.  Wagner is a registered professional engineer who had worked for Sico for 13 years as
of the time of trial.  Before becoming the legal affairs manager, Wagner worked in product
development and was chosen to represent the company because of his broad product knowledge of
the tables manufactured by Sico.

The Pacer table that injured Willis was manufactured in 1985.  Although Wagner did not work at Sico in
1985, he testified that (1) he was familiar with Sico's current manufacturing processes; and (2) those
processes had not changed from the ones used before he joined the company.

Wagner researched the Pacer table's design and manufacturing history; he also examined and tested
the specific table at issue during pretrial discovery.  Wagner tested the table no more than ten times
before trial.  In some of those tests the lock bar engaged to keep the table in a tee-pee position; in
others the lock bar failed to catch and allowed the table to open fully without stopping.  On cross-
examination, Wagner acknowledged that the lock bar engaged during pretrial tests only when he
manually manipulated it; Wagner agreed with a statement that the subject table “never worked right”
during his pretrial tests.

Wagner concluded that the accident occurred because the lock bar malfunctioned.  Wagner could not
determine why the lock bar failed to catch.  Wagner testified that the lock bar is supposed to function
properly 100 percent of the time without manipulation.  Wagner testified that the table was in a
dangerous condition at the time of trial.

Wagner testified at trial that the Pacer table is opened during the manufacturing process for cleaning
before it leaves the factory.  Wagner testified that he was not aware of any testing that Sico did on
Pacer tables to determine if the lock bars function properly.  Wagner further testified at trial that no
testing had been conducted on the Pacer table since he had been with the company.  He testified that
“it is a possibility” the table could malfunction after being stored for a period of time, and that Sico had
not conducted testing to assess the effect of long-term storage on the lock bar's functioning.  

Sico argues on appeal that the record contains no evidence that failure to test the lock bar breached
an industry standard of care, or that Sico's failure to test the lock bar proximately caused Willis's
injury.  Sico is held to a standard of ordinary care under the jury charge submitted in this case.  See
Sage Street Assocs., 863 S.W.2d at 447 (absent charge error complaint, sufficiency of the evidence is
assessed under the jury charge as given).  As defined in the jury charge, “'Ordinary care' means that
degree of care that would be used by a company . . . of ordinary prudence under the same or similar
circumstances."

Wagner testified as follows:

Q.      Do you recall when I took your deposition, I asked you whether you or anyone at SICO tested
this product by letting it go before it was shipped out?  Do you recall?

A.      Yes.

Q.      And do you recall at that time you told me that you were not aware that anyone tested the
product in that fashion?

A.      Yes.

Q.      Okay.  And are you telling the ladies and gentlemen of the jury that what somebody at SICO
does today is they may pull this down . . . to wipe it off?

A.      Right.

Q.      Then they will pull it back up and send it away?

A.      Right.

Q.      But it is true that no one just does - and I am going to let it catch - no one just does that, do they?

A.      Well, if the lock bar functions properly, it will stop in that position.

Q.      Well, no one does what I just did, right?

A.      I don't know how that's different from just opening the table.

Q.      Okay.  Well, you, as the guy for SICO, can't tell the difference or why it might be important for
anyone working at the company to do this, and they slowly let it down, versus just seeing what
happens when it falls?  You can't see why that might be important?

A.      Well, like I said earlier, they do open the table so that they can wipe it down and make sure it's
clean.

*     *     *

Q.      They don't just let it drop to see if the lock bar will catch, do they, sir?

A.      They would have to manually override the lock bar in order for that not to happen.

Q.      If it worked, right?  If it worked?

A.      I am not sure what you are saying.  You have to manually override the lock bar.  What you just
did would automatically happen.

Wagner also testified as follows:

Q.      Okay.  And if John's hand was there, and that lock bar was working correctly, he wouldn't have
been injured, correct?

A.      Yes.

*     *     *

Q.      What would happen if, say, in operating the table that's . . . about to be packaged up and
shipped out . . . they operate it and it doesn't work, what would happen then?

A.      It would be tagged and set aside until the problem was corrected.

Q.      Okay, and what does the product being corrected mean?  Do you -

A.      Well, depending on what's wrong, it could be replacing parts, you know, whatever it takes to
make it function correctly.

Although he testified at trial that the table was designed to be used “until it gets into disrepair,"  
Wagner testified in his deposition that “[w]e expect people to use it until probably they either damage
the top or they get tired of the color."  He agreed that the lock bar should work 100 percent of the time,
but repeatedly qualified that statement by limiting its application to products that are well-maintained.  
Wagner could identify no maintenance that should be performed on the lock bar other than perhaps to
lubricate the pivot points; he agreed that lubrication should not affect the lock bar's functioning.  
Wagner also testified that the lock bar's operation could be affected if it was bent or damaged, but he
observed no such damage to the lock bar on the table that injured Willis.  Wagner testified that he saw
nothing unusual about the table's lock bar and he did not know why the lock bar failed to work
correctly, but stated he could make that determination if he disassembled it.  The lock bar had no
visible damage or rust and showed no indication that someone had tampered with it.  The table
showed no signs of misuse.  

Wagner testified that “at some point, age is going to affect how it operates."  He agreed that Sico had
never considered that the lock bar's functionality might decrease over time, but he agreed that
functionality of this particular lock bar did, in fact, deteriorate during the time that elapsed between
Willis's accident and the trial.  Wagner did not know the reason for this.  He agreed it was possible that
the change in the product's condition was simply the result of storing it.

Wagner further agreed that “when you have a design feature, that you expect it to work 100 percent of
the time and it fails sometimes, that is the most dangerous product of all."  Finally, when Wagner
examined the table involved in this incident, he could not get the lock bar to “catch" automatically as it
was intended to do, despite the absence of any visible defect or damage.

Based on Wagner's testimony, a reasonable jury could conclude that no lock bar testing was
performed before the table that injured Willis left Sico's factory.[8]  A reasonable jury also could
conclude that (1) a table manufacturer exercising ordinary prudence under the same or similar
circumstances would have tested Pacer tables for lock bar malfunctions; (2) any lock bar malfunctions
revealed by testing would have been fixed; and (3) the failure to test for and fix lock bar malfunctions
was a proximate cause of the amputation injury that occurred when the lock bar on a Pacer table failed
to catch, allowing the table to open fully while Willis's finger was pinched between the table halves.

Conclusion

The trial court's judgment is affirmed.

/s/      
William J. Boyce

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

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

[1]  Sico asserts it was named incorrectly as “Sico North America, Inc." in the district court.

[2]  When Willis was injured on May 2, 2003, the Texas statute of repose applied only to manufacturing equipment.  See
Act of Feb. 24, 1993, 73rd Leg., R.S., ch. 5, § 2, 1993 Tex. Gen. Laws 13, 14-15, amended by Act of June 2, 2003, 78th
Leg., R.S., ch. 204 § 5.01, 2003 Tex. Gen. Laws 847, 859B60.  On June 2, 2003, the Texas legislature amended the
statute to apply to suits against manufacturers of any product.  Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 5.01,
2003 Tex. Gen. Laws 847, 859-60.  The governor signed the bill into law on June 11, 2003, and it became effective on
September 1, 2003.  See id. § 23.02(c), 2003 Tex. Gen. Laws at 898-99.  As modified, the statute applies to actions
filed on or after July 1, 2003.  Id.  (“Articles 4, 5, and 8 of this Act apply to an action filed on or after July 1, 2003.  An
action filed before July 1, 2003, is governed by the law in effect immediately before the change in law made by Articles
4, 5, and 8, and that law is continued in effect for that purpose.").  Thus, at the time the cause of action accrued, Willis's
suit was not barred by the Texas statute of repose; as a result of the amendment, he had less than four months within
which to file suit before the amendment became retroactively effective.

[3]  No other differences between Texas and Minnesota law were identified in the district court, and the case otherwise
was submitted to the jury in conformity with Texas law. See Tex. R. Evid. 202.

[4]  Section 71.031, entitled “Act or Omission Out of State," provides in pertinent part:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign
country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or
injury takes place in a foreign state or country, if:

(1)        a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death
or injury;

(2)        the action is begun in this state within the time provided by the laws of this state for beginning the action;

(3)        for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of
the foreign state or country in which the wrongful act, neglect, or default took place; and

(4)        in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of
its citizens.

[5]  Several cases hold that the absence of an objection before the jury is discharged waives a complaint regarding an
asserted conflict in jury findings.  Coastal Chem. Inc. v. Brown, 35 S.W.3d 90, 99 (Tex. App.-Houston [14th Dist.] 2000,
pet. denied); Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 423B24 (Tex. App.-Beaumont 1999, pet denied); City of
Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex. App.-Corpus Christi 1998, pet. denied); Torres v. Caterpillar, Inc., 928 S.
W.2d 233, 244B45 (Tex. App.-San Antonio 1996, writ denied); Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 109
(Tex. App.-Eastland 1992, writ denied); see also End Users, Inc. v. Sys. Supply for End Users, Inc., No. 14-06-00833-
CV, 2007 WL 2790379, at *5 (Tex. App.-Houston [14th Dist.] Sept. 27, 2007, no pet.) (mem. op.).  But see Kitchen v.
Rusher, 181 S.W.3d 467, 472-73 (Tex. App.-Fort Worth 2005, no pet.).  We need not and do not address this
preservation issue.

[6]  Sico predicated its motion for new trial in part on the jury's simultaneous “no" answers to the defect questions and
“yes" answer to the negligence question.  On appeal, Sico neither requests a new trial nor contends that the district
court erred in denying its motion for new trial.  With respect to the negligence claim, Sico's brief challenges only the
denial of its motion for directed verdict and its motion for judgment notwithstanding the verdict.

[7]  The admission of this testimony without objection established trial by consent with respect to negligence
predicated on an unpleaded failure to test the table and lock bar.  “When both parties present evidence on an issue
and the issue is developed during trial without objection, any defects in the pleadings are cured at trial, and the defects
are waived."  Ingram v. Deere, ___ S.W.3d ___, 2009 WL 1900537 *2  (Tex. July 3, 2009) (not yet released for
publication) (citing Sage Street Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445-46 (Tex. 1993), and Tex. R. Civ.
P. 67).

[8]  Wagner testified as follows:

Q:         Let me make sure I understand one other area and that's testing.  To your knowledge, has anybody done even
the smallest amount of testing on this lock bar for this table ever at SICO?

A:         I don't know if it's been done.

Q:         Certainly since you have been at the company, you are aware that it has not been done, correct?

A:         I couldn't say that definitively, but I don't recall it being done.

Q:         In your position as legal affairs manager for the company and someone who's been there for, what, now 13
years?

A:         Thirteen years.

Q:         - - 13 years, you are not aware of it ever being done, correct?

A:         Correct.