IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0895

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Ford Motor = Company,=20 Petitioner,

Tiburcio Ledesma, Jr., Respondent

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On Petition for Review from = the

Court of Appeals for the Third = District of=20 Texas

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Argued February=20 14, 2007

=20 Justice Willett = delivered=20 the opinion of the Court.

=20 In this products liability case, Ford Motor Co. argues that the = trial=20 court reversibly erred in charging the jury by giving an incomplete = definition=20 of =93manufacturing defect.=94 We agree. Additionally, we hold that a = frequently=20 submitted definition of =93producing cause=94 should no longer be used. = We remand=20 the case for a new trial under a jury charge that reflects our = applicable caselaw, including our decision today.

I. Background

=20 In March 1999, Tiburicio Ledesma, Jr. purchased a new Ford F-350 Super Duty = pickup=20 truck for his construction business. The truck had four rear tires, two = on each=20 side, surrounded by fiberglass fenders extending beyond the sides of the = truck.

=20 On June 5, 1999, Ledesma turned onto = a two-lane=20 street in Austin=20 and began to accelerate. He testified that after shifting gears the = truck=20 suddenly began to lurch, and he lost control, striking two parked cars, = a=20 Firebird and a Civic, on the side of the street. The truck then hit the = street=20 curb and came to rest. At the time of the accident, the truck=92s = odometer read=20 about 4,100 miles.

=20 Power from the truck engine is conveyed to the rear axle by the = drive=20 shaft, which connects the transmission in the front of the truck with = the=20 differential/rear axle assembly in the rear. As seen in the trial = exhibit=20 reproduced below, the rear-axle housing is attached to two sets of rear = leaf=20 springs by u-bolts, which wrap around the axle housing and are bolted to = a rear=20 spring plate that sits on top of the leaf-spring assembly. On each side = of the=20 truck, two u-bolts attach the rear-axle housing to a spring plate and = set of=20 leaf springs.

3D"Text

=20 Both parties agree that the truck=92s rear leaf spring and axle = assembly=20 came apart and that this separation caused the drive shaft to dislodge = from the=20 transmission. The core dispute centers on when and why = this=20 malfunction occurred and whether it caused the collision or = resulted=20 from it. That is, did a manufacturing defect trigger the right = rear-axle=20 displacement and cause Ledesma to lose = control of the=20 truck and strike the parked cars (as Ledesma = claims),=20 or did the right rear axle detach when Ledesma struck=20 the parked cars and curb (as Ford claims)?

=20 At trial, Ledesma claimed that he = lost control=20 of the truck when its drive shaft separated from the transmission and = =93pronged=94=20 on the pavement, causing him to hit the parked cars. A police officer = testified=20 that he investigated the accident scene and prepared a report based on = Ledesma=92s description of the accident. The = report makes no=20 mention of any other witnesses. Ledesma also = presented=20 two expert witnesses in support of his manufacturing defect claim, as = discussed=20 below.

=20 Ford presented an expert, Dan May, in support of its theory that = the=20 axle-to-spring attachment failed, not because of a manufacturing defect, = but=20 because of the forces exerted on it when Ledesma=20 struck the parked vehicles and curb. Among other efforts to discredit = May, Ledesma emphasized to the jury that May was a = long-time Ford=20 employee and had never found a defect in a Ford product.

=20 Ford also called the owner of the Firebird, Edward Plyant, who testified by deposition that he = witnessed the=20 accident from a driveway. Plyant testified = that Ledesma was speeding and inattentive and struck = the Firebird=20 at a high rate of speed. Ledesma testified = that Plyant did not see the accident, but came outside = after=20 hearing the ensuing commotion, and that Plyant had=20 unsuccessfully sued Ledesma.

=20 The jury sided 11-1 with Ledesma, = finding that=20 a manufacturing defect caused the accident and that Ledesma was not contributorily=20 negligent, and awarding economic damages of $215,380. The court of = appeals=20 affirmed.[1]

II. Discussion

A. Admissibility of Ledesma=92s Expert=20 Testimony

=20 Ford argues that the trial court erred in admitting the testimony = of=20 Ledesma=92s two expert witnesses because = their opinions=20 were unreliable.[2]

1. What Ledesma=92s Two = Experts=20 Said

=20 Ledesma=92s expert David Hall, an = accident reconstructionist, testified by deposition that he = believed=20 a mark in the road showed that the drive axle struck the pavement before = the=20 truck struck the Firebird, consistent with Ledesma=92s=20 theory that the truck malfunctioned and caused the collision. He reached = this=20 conclusion by reviewing a number of photographs. Based on the = photographic=20 evidence of damage to the Firebird and an engineering paper providing a = method=20 for estimating speed based on the Firebird=92s body damage, Hall also = estimated=20 that Ledesma=92s truck was traveling at a = very slow=20 speed when it struck the Firebird, again consistent with Ledesma=92s theory of the accident and = inconsistent with=20 Ford=92s theory that Ledesma was speeding = and otherwise=20 driving carelessly.

=20 Ford raises numerous complaints about the reliability of Hall=92s = testimony. Ford notes that the post-accident photographs of the road = were taken=20 by Ledesma and his father with a low-quality = disposable camera, that there are many spots and marks on the grainy=20 photographs, and that the marks do not reliably indicate that the drive = shaft=20 struck the road prior to the crash with the Firebird. Ford stresses that = the=20 investigating police officer found no gouges in the pavement despite a = careful=20 search of the accident scene. Ford also raises numerous complaints about = Hall=92s=20 estimate of the truck=92s speed at the time of the Firebird collision. = These=20 complaints include two observations: (1) the engineering paper on which = Hall=20 relied states that it should not be used when examining side swipes such = as the=20 accident in issue; and (2) the damage to the Firebird, as confirmed by = the car=92s=20 owner and a repair estimate, was far more severe than Hall assumed, = rendering=20 his estimate of a very slow impact unreliable.

Ford=20 complains that the testimony of Ledesma=92s = principal=20 expert, metallurgical and mechanical engineer Geert=20 Aerts, was likewise unreliable. Ledesma=20 counters that Aerts is a leading expert on = truck leaf=20 springs; Aerts has investigated about 150 = leaf-spring=20 failures. Ford does not claim that Aerts was = unqualified to testify as an expert on the accident in issue but = contends that=20 his theory of the accident was unreliable for various reasons.

=20 Aerts focused on the u-bolts holding = the rear=20 axle to the rear springs and concluded that one of them was defectively=20 manufactured. His theory was that a rear passenger-side u-bolt was = loose,=20 causing it to vibrate. This vibration eventually fatigued and fractured = a center=20 pin holding the leaf springs to the rear spring plate, which in turn = allowed the=20 u-bolts, spring plate, and rear axle to slide backwards, pulling the = drive shaft=20 from the transmission. Aerts examined the = truck=92s=20 u-bolts while they were still on the truck and found the torque on each = bolt to=20 be well below that required by Ford=92s specifications. While he = conceded that the=20 torques might have changed due to the accident, he concluded that the = u-bolt in=20 issue was under-torqued when Ford assembled = the=20 truck.

Aerts testified extensively about how the u-bolt = came to be=20 under-torqued. One explanation was that one = leg of the=20 u-bolt was manufactured a few millimeters higher than the other, which = could=20 have caused the nut on the shorter leg to receive an insufficient torque = when it=20 and other nuts were simultaneously tightened. Aerts=20 claimed that, according to a Ford =93product engineering=94 sheet for = the u-bolt,=20 admitted into evidence, this slight difference in heights of the legs = exceeded=20 the tolerance in Ford=92s own specifications. The engineering sheet = provided=20 diagrams and various specifications for the u-bolts.

=20 Aerts also testified that the product = engineering sheet required the bottom, curved portion of the u-bolt to = be=20 flattened to allow for a better grip on the axle, and that the flattened = portion=20 on the allegedly defective bolt was off center by about three-quarters = of an=20 inch. According to Aerts, this manufacturing = defect=20 reduced the surface area of the bolt in contact with the axle, thus = reducing the=20 bolt=92s grip on the axle. This defect also allegedly allowed the bolt = to dig into=20 and deform the axle housing, causing the bolt to further loosen over = time. The=20 product engineering sheet clearly shows that the flattened portion of = the u-bolt=20 is to be centered at the bottom of the curved portion of the bolt, with=20 flattening forty-five degrees up from either side of the bottom of the = bolt, and=20 a blend from flat to round for another forty-five degrees on both sides = of the=20 bolt.

=20 As further evidence of a pre-accident defect, Aerts focused on the rear spring plate. The = u-bolts went=20 through this plate, which sits on top of the leaf springs. The u-bolts = were=20 tightened onto the plate with four nuts. The rear spring plate also had = a center=20 pin attaching the leaf springs to the plate. Aerts=20 claimed that rust and marks on the spring plate near the hole for the = center pin=20 indicated that the u-bolt was loose, allowing the assembly to vibrate = and the=20 pin to scratch the spring plate over a period of time. These = observations were=20 consistent with his theory of a u-bolt that was loose before the = accident,=20 resulting in vibration that caused the center pin to suffer a fatigue = fracture=20 and precipitate the u-bolt slippage and drive shaft dislocation.

=20 Aerts also theorized that, perhaps = for a reason=20 other than the uneven u-bolt ends and flattened portion of the bolt, = Ford simply=20 failed to tighten the u-bolts to the torque required by its own = specifications,=20 causing the assembly to vibrate and eventually fail after a few months = of=20 driving.

=20 Ford challenged Aerts=92s testimony = at every=20 turn. It argued that Aerts never confirmed = the=20 existence of denting in the axle housing and that Ford=92s expert May = testified that he could find no such denting. Ford = contended=20 that the u-bolt was deformed because of the tremendous forces of the = accident.=20 It further offered evidence from May, who was familiar with Ford=92s = manufacturing=20 process, that the sockets on its =93four spindle nut runner,=94 the = machine used to=20 tighten the nuts onto the u-bolts, are four inches deep, easily deep = enough to=20 properly tighten the nuts despite the slight difference in the height of = the=20 u-bolt legs. May claimed that the difference = in the=20 u-bolt lengths was within Ford=92s =93allowable tolerances.=94 May also = testified that=20 he could not see the .75-inch misalignment of the flattened portion of = the=20 u-bolt that Aerts observed.

2. Whether Their Testimony Was Sufficiently = Reliable

=20 An expert=92s testimony, to be admissible, must possess a = reliable=20 foundation.[3] =93Admission of expert = testimony that does=20 not meet the reliability requirement is an abuse of discretion.=94[4] Expert testimony is unreliable = if it is=20 based on unreliable data, or if the expert draws conclusions from his = underlying=20 data =93based on flawed methodology.=94 [5] Expert testimony is also = unreliable if=20 =93there is simply too great an analytical gap between the data and the = opinion=20 proffered.=94 [6]

=20 In E.I. du Pont de Nemours & Co.=20 v. Robinson, we set out six factors courts may consider in deciding = whether=20 expert testimony is reliable:

1. =20 the extent to which the theory has been or = can be=20 tested;

2. =20 the extent to which the technique relies on = the=20 subjective interpretation of the expert;

3. =20 whether the theory has been subjected to peer = review=20 and/or publication;

4. =20 the technique=92s potential rate of = error;

5. =20 whether the underlying theory or technique = generally=20 has been accepted as valid by the relevant scientific community; and

6. =20 the nonjudicial = uses which=20 have been made of the theory or technique.[7]

We = have=20 recognized that the Robinson factors are nonexclusive[8] and have specifically noted = that =93the=20 Robinson factors are not always useful in evaluating expert = testimony in=20 automobile accident cases.=94 [9] As in Gammill v. Jack Williams Chevrolet, = Inc.,=20 another automobile accident case, the Robinson factors do not = readily=20 lend themselves to a review of the expert testimony in the pending = case,[10] but =93there must be some = basis for the=20 opinion offered to show its reliability.=94 [11] And as in Volkswagen of = America, Inc.=20 v. Ramirez, yet another automobile accident case, =93[a]n expert=92s = bare=20 opinion will not suffice=94 and is unreliable if =93based solely upon = his subjective=20 interpretation of the facts.=94 [12]

=20 We need not assess the reliability of Hall=92s testimony, because = we hold=20 that Aerts=92s testimony was sufficiently = reliable to=20 warrant admission and is some evidence that a manufacturing defect = caused the=20 accident.

=20 Ford never challenged Aerts=92s = credentials. His=20 testimony offered a plausible theory of how the accident occurred. Aerts based his testimony on deviations between = Ford=92s own=20 specifications as to torque, alignment of the flattened portion of the = u-bolt,=20 and the tolerance for the difference in u-bolt leg lengths. He relied on = observations and measurements of tangible truck components, which were=20 documented with photographs and a videotape of his initial examination = of the=20 truck. The u-bolts and rear-axle assembly were admitted into evidence. = The jury=20 was free to examine this evidence and the Ford specifications that were = also=20 admitted into evidence.

=20 To a significant extent, deciding whether the truck lost its = drive shaft=20 before striking the Firebird, or instead the drive shaft = dislodged=20 after striking the parked cars and the street curb, turned on = whether the=20 jury believed Ledesma or Plyant. Ledesma = insisted he was=20 driving carefully when suddenly he lost control of the truck and veered = into the=20 Firebird. He claims that the truck started lurching before the impact,=20 consistent with a truck malfunction that caused the drive shaft to drop = to the=20 street. Pylant=92s testimony was = inconsistent with the=20 investigating police officer=92s report and testimony, which indicated = that Plyant talked to the officer but did not claim to = have=20 witnessed the accident. Ledesma likewise = observed no=20 witnesses to the accident, claiming instead that Plyant and others came outside after hearing the = accident.=20 The jury was of course entitled to weigh the credibility of these lay = witnesses=20 and apparently believed Ledesma=92s account. = The jury=20 was also entitled to take into account that Ford=92s expert May had = worked for=20 Ford for decades and had never found a defect in a Ford product.

=20 We also conclude that Ford overstates the effectiveness of its=20 cross-examination of Aerts. While May = explained that=20 Ford=92s tightening equipment provided sockets easily deep enough to = tighten the=20 uneven legs of the u-bolt, Aerts claimed = that the=20 uneven legs might still cause the equipment to slip off the shorter leg, = or=20 under-tighten the shorter leg if the equipment lacked the flexibility to = properly tighten uneven legs, although May contended that each socket = was =93on=20 the same head=94 but =93driven independently.=94 Aerts=20 conceded that the u-bolt could have been stretched in the accident, = perhaps=20 accounting for the inadequate torques he measured, but he also found = that the=20 overall length of the allegedly defective u-bolt was the same length as = exemplar=20 u-bolts provided by Ford and was within one millimeter of the length of = another=20 u-bolt from the truck. He conceded that he had no photographic proof of=20 indentation of the axle caused by the asymmetrical flat portion of the = u-bolt=20 and that =93I never came back here to check that,=94 but he opined that = the=20 asymmetrical manufacture, regardless of indentation of the axle housing, = reduced=20 the area of contact between the u-bolt and axle. The jury could infer = that Ford=20 would not have specified flattening of the curved end of the u-bolt, = which=20 indisputably required an extra manufacturing step, unless Ford thought = that=20 procedure was needed. Aerts also testified = that=20 regardless of the shape of the u-bolt, Ford might have failed to tighten = the=20 u-bolt nuts to Ford=92s own torque specification because the air = pressure on the=20 tightening equipment was incorrect or for some other reason, thus = explaining the=20 inadequate torque and vibration damage he observed. His review of the = accident=20 scene photographs further persuaded him that the accident did not cause = the=20 u-bolt slippage and to opine that =93I don=92t think [the u-bolt] should = have come=20 loose with what I saw happen there on that street.=94

=20 Ford presented a strong defense, but ultimately the jury rejected = it.=20 Aerts=92s testimony does not present a case = where =93there=20 is simply too great an analytical gap between the data and the opinion=20 proffered,=94 [13] or where the expert=92s = testimony amounted=20 to nothing more than a recitation of his credentials and a subjective = opinion.[14] We conclude that Ford=92s = complaints about=20 Aerts=92s testimony go to its weight, not = its=20 admissibility. The trial court therefore did not abuse its discretion in = admitting Aerts=92s testimony.

&nbs= p; = ; = &= nbsp; &n= bsp; =20 = B. Jury=20 Charge

=20 Ford complains that, over its objection, the trial court = improperly=20 instructed the jury on the definitions of manufacturing defect and = producing=20 cause. The jury affirmatively answered Question No. 1 of the jury = charge, which=20 asked:

=20 Was there a manufacturing defect in the 1999 Ford F-350 pickup = truck at=20 the time it left Ford=92s possession that was a producing cause of the June 5, 1999 incident in question?

A =93defect=94 means a = condition of the=20 product that renders it unreasonably dangerous. An =93unreasonably = dangerous=94=20 product is one that is dangerous to an extent beyond that which would be = contemplated by the ordinary user of the product, with the ordinary = knowledge=20 common to the community as to the product=92s characteristics.

=93Producing cause=94 = means an=20 efficient, exciting, or contributing cause that, in a natural sequence, = produces=20 the incident in question. There may be more than one producing = cause.

=20 In defining defect, the trial court followed Texas Pattern Jury = Charge=20 (PJC) 71.3.[15] As specified in the comment to = PJC 71.3,=20 the trial court included in the question the definition of producing = cause found=20 in PJC 70.1. Ford objected that both PJC 71.3 and PJC 70.1 were =93not = accurate=20 under the law=94 and failed to track this Court=92s precedent. We agree. = Ledesma may have argued a manufacturing = defect to the=20 jury, but the law requires the jury to determine specifically whether he = had=20 proven one. The jury here received a legally incorrect charge = that=20 omitted an indispensable element: that the product deviated, in its = construction=20 or quality, from its specifications or planned output in a manner that = rendered=20 it unreasonably dangerous.

1. = The Court=92s=20 Charge on Manufacturing Defect Failed to Include the Essential Element =

of a Deviation from Design

=20 The trial court submitted the pattern jury charge=92s definition = on=20 manufacturing defect. We agree with Ford, however, that the model charge = is=20 erroneous, as it does not include the requirement that a manufacturing = defect=20 must deviate from its specifications or planned output in a manner that = renders=20 the product unreasonably dangerous. We established this standard in = American=20 Tobacco Co. v. Grinnell,[16] and in three other cases since = Grinnell was issued a decade ago, we have recognized, with = essentially=20 identical statements, the =93deviation from specifications or planned = output=94=20 requirement.[17] This requirement is separate = from, and=20 in addition to, the requirements that the product was defective when it = left the=20 manufacturer and that the defect was a producing cause of the = plaintiff=92s=20 injuries.[18]

=20 We note that the current Restatement of Torts essentially follows = the=20 same concept of a deviation from the manufacturer=92s design by = providing that a=20 product =93contains a manufacturing defect when the product departs from = its=20 intended design even though all possible care was exercised in the = preparation=20 and marketing of the product . . . .=94 [19]

=20 The requirement of a deviation from the manufacturer=92s = specifications or=20 planned output serves the essential purpose of distinguishing a = manufacturing=20 defect from a design defect. PJC 71.3 refers to a =93manufacturing = defect=94 in the=20 product =93at the time it left=94 the manufacturer. A jury=97without = further=20 guidance=97may view any defect in a product at the time it leaves the = manufacturer=20 as satisfying the PJC=92s reference to a = =93manufacturing=20 defect,=94 rather than making the essential distinction between a = manufacturing=20 and design defect. As it stood, the court=92s charge merely inquired = whether a=20 =93condition=94 of the product rendered it unreasonably dangerous. That = =93condition=94=20 could have been a design defect or a manufacturing defect.

=20 The distinction is material. The danger of allowing a jury to = conclude=20 that the defect was or might have been a design defect is that = =93[a]=20 design defect claim requires proof and a jury finding of a safer = alternative=20 design.=94 [20] The charge did not make such = an=20 inquiry.

=20 Moreover, requiring a deviation from specifications or planned = output=20 permits a jury to determine whether a specific defect caused the = accident,=20 rather than premising liability on a belief that a product failure, = standing=20 alone, is enough to find a product defect. Texas law does not generally = recognize a=20 product failure or malfunction, standing alone, as sufficient proof of a = product=20 defect.[21] Instead, we have held that = =93a specific=20 defect must be identified by competent evidence and other possible = causes must=20 be ruled out.=94 [22] Our law requires more than = finding an=20 undifferentiated =93condition=94 that renders the product unreasonably = dangerous,=20 which is all the court=92s charge mandated. While a products liability = claim does=20 not of course require proof of manufacturer negligence, the deviation = from=20 design that caused the injury must be identified. Otherwise, the jury is = invited=20 to find liability based on speculation as to the cause of the incident = in=20 issue.

=20 Requiring proof of a deviation from manufacturer specifications = or=20 planned output also comports with our recognition that expert testimony = is=20 generally encouraged if not required to establish a products liability = claim.[23] If juries were generally free = to infer a=20 product defect and injury causation from an accident or product failure = alone,=20 without any proof of the specific deviation from design that caused the=20 accident, expert testimony would hardly seem essential. Yet we have = repeatedly=20 said otherwise.[24]

=20 For these reasons, we hold that the court=92s charge was = fundamentally=20 flawed in omitting the requirement that the product deviate, in its = construction=20 or quality, from its specifications or planned output in a manner that = renders=20 it unreasonably dangerous.

2. = The Erroneous=20 Definition of Manufacturing Defect Is Reversible Error

=20 Having determined that the court=92s charge was erroneous, = there=20 remains the question of whether this charge error is reversible = error.

=20 Ledesma contends that Ford did not = preserve=20 error on this complaint. Generally, =93[a] party objecting to a charge = must point=20 out distinctly the objectionable matter and the grounds of the = objection.=94[25] Preservation of error = generally depends=20 on =93whether the party made the trial court aware of the complaint, = timely and=20 plainly, and obtained a ruling.=94 [26] =93Failure to submit a = definition or=20 instruction shall not be deemed a ground for reversal of the judgment = unless a=20 substantially correct definition or instruction has been requested in = writing=20 and tendered by the party complaining of the judgment.=94[27] In this case, Ford objected to = the=20 definition of manufacturing defect on grounds that it did not accurately = reflect=20 the law, and submitted in writing a proposed question that included an=20 alternative definition of a manufacturing defect. The alternative = definition=20 provided that a manufacturing defect =93is a physical departure from the = product=92s=20 intended design that renders it unreasonably dangerous.=94 The trial = court refused=20 Ford=92s alternative charge.

=20 The proposed definition addresses the essential omission in the = court=92s=20 charge described above, namely, the omission of a requirement that the = product=20 deviate from its intended design. The proposed definition is consistent = with the=20 Restatement definition of a manufacturing defect, discussed above, that = includes=20 the requirement that the =93product departs from its intended design,=94 = as well as=20 our own caselaw. In support of its proposed=20 definition, Ford also provided the trial court with quotations from=20 Grinnell and Torrington Co. v. Stutzman,=20 giving their definitions of a manufacturing defect that include the = requirement=20 of a deviation from specifications or planned output.[28] The objection, proposed = question and=20 instruction, and supporting authorities provided the trial court with a = plain=20 objection identifying the error in the charge that we recognize today, = =93with=20 sufficient specificity to make the trial court aware of the = complaint.=94[29]

=20 Since Ford preserved error, we turn to whether the charge error = is=20 reversible. We hold that it is. =93It is fundamental to our system of = justice that=20 parties have the right to be judged by a jury properly instructed in the = law.=94[30] =93There can be no question = that it was=20 [the plaintiff=92s] burden to obtain affirmative answers to jury = questions as to=20 the necessary elements of his cause of action.=94 [31] The jury was not asked to = decide an=20 essential element of a manufacturing defect claim, namely whether the = u-bolt=20 deviated from Ford=92s specifications or planned output.

=20 If a cause of action consists of more than one element, and an = element is=20 omitted from the charge =93without request or objection,=94 the missing = element can=20 be found by the trial court or deemed found if certain requirements are = met.[32] But where, as here, a proper = objection=20 is made about the omission of an essential element, the failure to = include it is=20 reversible error.[33]

=20 Ford argues that we should reverse and render judgment in its = favor=20 because of its objected-to charge error, as we did in State = Department of=20 Highways & Public Transportation v. Payne,[34] but we disagree. In Spencer = v. Eagle=20 Star Insurance Co. of America,[35] we distinguished Payne = and=20 explained that where, as in the pending case, the theory of recovery was = defectively submitted, as opposed to a situation where the plaintiff = =93refused to=20 submit a theory of liability=94 after defendant=92s objection, the = proper remedy is=20 to remand for a new trial.[36]

=20 Spencer distinguished cases that reversed and rendered = where the=20 plaintiff =93failed to submit any jury question on a controlling = issue.=94[37] We further explained, in = Spencer=20 and in Stutzman, that if the = plaintiff submits=20 a jury question on his claim that is merely =93defective,=94 as opposed = to=20 =93immaterial,=94 the appropriate remedy is to remand for a new trial = rather than to=20 render judgment.[38] In the pending case, Ledesma proffered a question on his manufacturing = defect=20 claim based on the PJC for this cause of action. He =93attempted to = submit a=20 controlling issue=94 [39] on his sole cause of action, = and the=20 question submitted =93was the heart of [Ledesma=92s]=20 case,=94 [40] so the question cannot be = characterized=20 as immaterial, and we cannot say that Ledesma failed=20 to submit a jury question on a controlling issue.

=20 Further, we =93may, in the interest of justice, remand the case = to the=20 trial court even if a rendition of judgment is otherwise = appropriate.=94[41] =93[W]e have remanded in the = interest of=20 justice when our decisions have altered or clarified the way in which a = claim=20 should be submitted to the jury.=94 [42] In the pending case, the trial = court=20 followed the PJC. On one occasion we not only approved a PJC issue and=20 instruction for design defect cases, we expressly disapproved of the use = of any=20 other instructions in such cases,[43] prompting one court of appeals = to remark=20 that =93[o]ur highest court has made it = abundantly clear=20 that to deviate from the pattern jury charges in products liability = cases is a=20 perilous journey.=94 [44] Given that our trial courts = routinely=20 rely on the Pattern Jury Charges in submitting cases to juries,[45] and we rarely disapprove of = these=20 charges, we conclude that the interests of justice would not be served = by=20 reversing and rendering judgment in favor of Ford. The more appropriate = remedy=20 is to reverse and remand for a new trial.

3. Producing Cause

=20 Ford separately complains that the trial court improperly = instructed the=20 jury on producing cause. The trial court, following PJC 70.1, instructed = the=20 jury: =93=91Producing cause=92 means an efficient, exciting, or = contributing cause=20 that, in a natural sequence, produces the incident in question. There = may be=20 more than one producing cause.=94 Ford contends that this definition is = an=20 incorrect statement of Texas law, and that a valid = definition would=20 state that producing cause =93means that cause which, in a natural = sequence, was a=20 substantial factor in bringing about an event, and without which the = event would=20 not have occurred. There may be more than one producing cause.=94 Ford = requested=20 the trial court to use this definition.

=20 We agree with Ledesma that the second = part of=20 the court=92s definition, recognizing that there may be more than one = producing=20 cause of an event, is correct. And we have seemed to sanction the first = part,=20 employing it ourselves several times in describing producing cause.[46] But we have also described a = producing=20 cause as one =93that is a substantial factor that brings about injury = and without=20 which the injury would not have occurred,=94 [47] the definition Ford asks us to = adopt.

=20 To say that a producing cause is =93an efficient, exciting, or = contributing=20 cause that, in a natural sequence, produces the incident in question=94 = is=20 incomplete and, more importantly, provides little concrete guidance to = the jury.=20 Juries must ponder the meaning of =93efficient=94 and =93exciting=94 in = this context.=20 These adjectives are foreign to modern English language as a means to = describe a=20 cause, and offer little practical help to a jury striving to make the = often=20 difficult causation determination in a products case.

=20 Defining producing cause as being a substantial factor in = bringing about=20 an injury, and without which the injury would not have occurred, is = easily=20 understood and conveys the essential components of producing cause that = (1) the=20 cause must be a substantial cause of the event in issue and (2) it must = be a=20 but-for cause, namely one without which the event would not have = occurred. This=20 is the definition that should be given in the jury charge.

&nbs= p; = ; = &= nbsp; =20 &nbs= p; =20 III. Conclusion

=20 We reverse the court of appeals=92 judgment and remand this case = to the=20 trial court for further proceedings.

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 _______________________________________

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 Don R. Willett

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 Justice

Opinion delivered: December 21, 2007

^[1] 173 = S.W.3d 78,=20 92.

^[2]=20 Because this argument, if accepted, would compel us to reverse and = render=20 judgment in favor of Ford, we address it before reaching Ford=92s = complaint of=20 alleged charge error, which for the reasons discussed below only affords = Ford=20 the lesser relief of a remand for a new trial. Ford also argues = that the=20 trial court improperly restricted the testimony of its expert, an issue = we do=20 not reach.

^[3]=20 Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 = (Tex. = 2006).

^[4]=20 Id.

^[5]=20 Merrell Dow Pharms., Inc. v. Havner, = 953 S.W.2d=20 706, 714 (Tex.=20 1997).

^[6]=20 Gammill v. Jack Williams = Chevrolet,=20 Inc., 972 S.W.2d 713, 726 (Tex. = 1998)=20 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. = 136, 146=20 (1997)).

^[7]=20 923 S.W.2d 549, 557 (Tex. 1995).

^[8]=20 Cooper Tire, 204 S.W.3d at = 801.

^[9]=20 Id. at=20 802.

^[10] See Gammill, 972 S.W.2d at = 727.=20

^[11] Id. at 726.

^[12] 159 S.W.3d 897, 906 (Tex. = 2004).

^[13] Gammill,=20 972 S.W.2d at 726.

^[14] See Cooper Tire, 204 S.W.3d at 801.

^[15] Comm. on Pattern Jury Charges, State = Bar of Tex., = Texas Pattern Jury = Charges=97Malpractice,=20 Premises & Products PJC 71.3 (2d ed. 2002).

^[16] 951 S.W.2d 420, 434 (Tex. 1997) = (=93Under=20 Texas law, a plaintiff has a manufacturing defect claim when a finished = product=20 deviates, in terms of its construction or quality, from the = specifications or=20 planned output in a manner that renders it unreasonably = dangerous.=94).

^[17] Cooper Tire & Rubber Co. = v.=20 Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (=93A manufacturing defect = exists when=20 a product deviates, in its construction or quality, from the = specifications or=20 planned output in a manner that renders it unreasonably dangerous.=94) = (quoting=20 Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004));=20 Torrington Co. v. Stutzman, 46 S.W.3d = 829, 844=20 (Tex. 2000) (=93A product has a manufacturing defect if its construction = or=20 quality deviates from the specifications or planned output in a way that = is=20 unreasonably dangerous.=94); see also In re Bridgestone/Firestone, = Inc.,=20 106 S.W.3d 730, 736 (Tex. 2002) (O=92Neill, J., concurring) (=93In order = to=20 establish a manufacturing defect, the plaintiffs must prove that =91the = finished=20 product deviates, in terms of its construction or quality, from the=20 specifications or planned output in a manner that renders it = unreasonably=20 dangerous.=92=94 (quoting Grinnell, = 951 S.W.2d at=20 434)).

^[18] See, e.g., Ridgway, = 135=20 S.W.3d at 600.

^[19] Restatement (Third) of Torts: = Products=20 Liability =A7 2(a) (1998); see also id. =A7 1 cmt. a (=93A = manufacturing defect is=20 a physical departure from a product=92s intended design.=94).

^[20] Cooper Tire, 204 S.W.3d at = 807=20 (citing Tex. Civ. Prac. & Rem. Code =A7=20 82.005).

^[21] See id. at=20 807.

^[22] Nissan Motor Co. v. = Armstrong, 145=20 S.W.3d 131, 137 (Tex. 2004) (discussing = Ridgway, 135=20 S.W.3d at 601).

^[23] See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) = (holding that=20 expert testimony was required to establish causation in products = liability case,=20 because =93[a] lay juror=92s general experience and common knowledge do = not extend=20 to whether design defects such as those alleged in this case caused = releases of=20 diesel fuel during a rollover accident=94); Nissan Motor Co., 145 = S.W.3d at=20 137 (holding, in a case where the plaintiff alleged and the jury found = design,=20 manufacturing, and marketing defects, that =93[i]n all=20 of these [prior] cases, it was not enough that a vehicle accelerated = when=20 claimants swore they had done nothing. Instead, we have = consistently=20 required competent expert testimony and objective proof that a defect = caused the=20 acceleration. . . . These requirements are not peculiar to = unintended=20 acceleration cases.=94).

^[24] See cases cited = supra note=20 26.

^[25] Tex. R. Civ. P. = 274.

^[26] State Dep=92t of Highways = & Pub. Transp. v. Payne, 838 = S.W.2d 235,=20 241 (Tex.=20 1992).

^[27] Tex. R. Civ. P. = 278.

^[28] See supra notes = 16=9617.

^[29] See Tex. R. App. P. 33.1(a)(1)(A).

^[30] Crown Life Ins. Co. v. = Casteel, 22=20 S.W.3d 378, 388 (Tex. 2000).

^[31] Ramos v. Frito-Lay, Inc., = 784 S.W.2d=20 667, 668 (Tex.=20 1990).

^[32] See Tex. R. Civ. P. = 279.

^[33] See Stutzman, 46 S.W.3d at 836=9641 (reversing and = remanding=20 because broad-form question submitted over defendant=92s objection = omitted=20 elements necessary to establish undertaking claim); Clayton W. = Williams, Jr.,=20 Inc. v. Olivo, 952 S.W.2d 523, 529-30 (Tex. 1997) (reversing and = rendering=20 because essential elements of premises liability claim were not = submitted as=20 instructions or definitions and elements were not =93necessarily = referable=94 under=20 Rule 279 to elements submitted); State Dep't of Highways & Pub. = Transp. v. Payne, 838 = S.W.2d 235,=20 241 (Tex.=20 1992) (reversing and rendering because plaintiff failed to obtain, over=20 defendant=92s objection, the lack of knowledge finding required to = establish=20 premise defect claim).

^[34] 838 S.W.2d at = 241.

^[35] 876 S.W.2d 154 (Tex. = 1994).

^[36] Id. at 157.

^[37] Id.

^[38] Stutzman,=20 46 S.W.3d at 839=9641; Spencer, 876 S.W.2d at 155, 157.

^[39] Stutzman,=20 46 S.W.3d at 840.

^[40] Spencer, 876=20 S.W.2d at 157.

^[41] Tex. R. App. P. = 60.3.

^[42] Stutzman,=20 46 S.W.3d at 840.

^[43] Acord=20 v. Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).

^[44] Wilson v. Kaufman & = Broad Home=20 Sys., 728=20 S.W.2d 874, 875=9676 (Tex. App.=97Beaumont 1987, writ ref=92d n.r.e.).

^[45] Indeed, Ford=92s own brief = contends that=20 until this Court corrects the PJC 71.3, =93it will continue to be used = in every=20 case in Texas=20 in which [a manufacturing] defect is alleged.=94

^[46] See Brown v. Bank of = Galveston, Nat=92l=20 Ass=92n, 963 S.W.2d 511, 514 (Tex. 1998) = (=93A=20 producing cause is an efficient, exciting, or contributing cause, which = in the=20 natural sequence of events, produces injuries or damages.=94); Union = Pump Co.=20 v. Allbritton, 898 S.W.2d 773, 775 (Tex. = 1995) (=93A=20 producing cause is =91an efficient, exciting, or contributing cause, = which in a=20 natural sequence, produced injuries or damages complained of, if = any.=94)=20 (quoting Haynes & Boone = v. Bowser=20 Bouldin, Ltd., 896 S.W.2d 179, 182 = (Tex. 1995) (quoting Rourke v. Garza, 530 S.W.2d 794, 801 = (Tex.=20 1975)))).

^[47] Trinity Universal Ins. Co. v. = Bleeker, 966 S.W.2d 489, 491 (Tex. 1998); = see also=20 Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. = 1995)=20 (=93A producing cause is a substantial factor which brings about the = injury and=20 without which the injury would not have occurred.=94); Union = Pump, 898=20 S.W.2d at 775 (noting that causation in fact is common to both proximate = and=20 producing cause, and that =93[c]ause in fact = means that=20 the defendant=92s act or omission was a substantial factor in bringing = about the=20 injury which would not otherwise have occurred=94); Prudential Ins. = Co. of Am.=20 v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995) (holding = that=20 the element of actual causation in fact common to both proximate and = producing=20 cause =93requires proof that an act or omission was a substantial factor = in=20 bringing about injury which would not otherwise have=20 occurred=94).