The Texas Supreme Court has denied rehearing in product liability case involving the preservation of error with respect to the apportionment question in the jury charge. The Court’s opinion has the potential to distort the appropriate apportionment of fault in product liability actions in which a theory of liability has been submitted to the jury over the defendant’s objection that it is unsupported by the evidence. It also means that a defendant’s objection to an improper submission, upon which the jury may rely in apportioning fault, is not sufficient to preserve error with respect to the apportionment question itself.
The case, Emerson Electric Co. dba Fusite and Emerson Climate Technologies, Inc. v. Johnson (No. 18-1181) arose from serious injuries suffered by an HVAC technician when a compressor malfunctioned, causing the emission of hot fluids that ignited and burned the technician. The plaintiff alleged both design and marketing defects against the manufacturers of the electric terminal that failed, causing the venting (Fusite) and the compressor, which incorporated the terminal. At the conclusion of trial, the trial court submitted a jury charge including both defect claims. Emerson objected to the marketing defect charge as unsupported by legally sufficient evidence. Emerson did not object to the apportionment question, however, since Texas law has long stated that a separate objection is not necessary to preserve error regarding apportionment based on an invalid theory of liability. The trial court overruled the objection and submitted the charge to the jury. The jury found liability on both the design and marketing claims. The jury allocated 75% of the responsibility to Emerson, 15% to Fusite, and 10% to the technician. It awarded approximately $14.6 million in damages, including $5 million for past and future mental anguish. The Fort Worth Court of Appeals affirmed.
On appeal to SCOTX, Emerson argued that the evidence was legally insufficient to prove either that the design of the product was “unreasonably dangerous,” that the design defect question in the jury charge improperly stated the law with respect to the balancing test (the risk-utility analysis under §82.005, CPRC, or the so-called Grinnell factors), and that there was legally insufficient evidence to support the jury’s finding of liability on the marketing defect claim (failure to warn). The Court determined the evidence legally sufficient to support the jury’s finding on the design defect claim and that the jury charge properly stated the Grinnell factors. Because the plaintiff had submitted alternative theories of liability and the jury’s findings on the marketing defect claim did not “afford greater relief” than on the design defect claim alone, the Court did not consider Emerson’s challenge.
Emerson, however, had urged the Court to consider the marketing defect sufficiency question independently because although trial court submitted a single apportionment question, the jury’s apportionment of fault could be different based on the theory it relied upon. In this case, Emerson, which made the compressor, was the primary target for the marketing design claim—failure to adequately warn of the risks of terminal venting. Fusite, on the other hand, was primarily on the hook for the product design. Yet the jury, as we have seen, loaded Emerson with 75% of the fault and Fusite with only 15%. Emerson pointed out to the Court that if the marketing design theory was invalid and thus should not have been submitted, the jury might have reached a decision based on the design defect alone. And remember that under §33.013, CPRC, a defendant is only jointly and severally liable if more than 50% responsible.
The Court waved aside this argument, holding that since Emerson had not objected to the single apportionment question at the time, it failed to preserve error on appeal. On motion for rehearing, the Texas Association of Defense Counsel, Product Liability Advisory Council, and National Association of Manufacturers submitted amicus curiae briefs asking the Court to reconsider the preservation issue. “An additional objection would not provide any additional information to the trial court,” TADC argued. “Moreover, requiring the additional objection risks confusion, encourages voluminous objections, and may lead to jury charges that violate Chapter 33. The Court should have held that an additional objection to the apportionment question was not needed to preserve error.” Unfortunately, the Court did not reopen the opinion to consider this question.
The takeaway from Emerson is that in any litigation with alternative theories of liability, the defendant must be prepared to object both to the submission of an invalid theory and a single apportionment question that encompasses valid and invalid theories. Otherwise, a defendant that gets a raw deal on apportionment may be out of luck on appeal.