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CAUSE NO. 48636
VALENTIN JUAREZ, and IN THE DISTRICT COUR
BERTHA JUAREZ, Husband and Wife and
NEXT FRIEND OF YOLANDA JUAREZ,
Deceased, and RAUL MACIAS,
Plaintiffs,
JUDICIAL DISTRICT
CITY OF HOUSTON,
HOUSTON POLICE DEPARTMENT,
LANICE TOBIAS, JR.,
HARRIS COUNTY SHERIFF’S
DEPARTMENT, AND
AMERICAN HONDA MOTOR COMPANY,
INC.,
Defendants. HARRIS COUNTY, TEXAS
DEFENDANT AMERICAN HONDA MOTOR CO., INC.’S
REPLY IN OPPOSITION TO PLAINTIFFS' SUMMARY JUDGMENT RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs’ Response to Defendant American Honda Motor Co., Inc.’s (“AHM”) No-
Evidence and Traditional Motions for Summary Judgment (“Response” and “Motion,”
respectively) grossly failed to satisfy Plaintiffs’ burden to present legally sufficient evidence to
raise a genuine issue of material fact on any of multitude of elements of Plaintiffs’ negligence
and/or product liability actions against AHM. Summary judgment is thus proper because:
Plaintiffs offer competent summary judgment evidence, by way of expert testimony, to
raise a genuine issue of material fact concerning any of the elements Plaintiffs’ cause
of action with respect to the subject Honda Civic
Plaintiffs’ only piece of “evidence” is a single, authenticated document that is
inadmissible under the Texas Rules of Evidence. As such, the Texas Rules mandate
that the Court strike Plaintiffs’ purported proof from the summary judgment record.
Even if considered competent summary judgment evidence, Plaintiffs’ unanalyzed and
unverified document cannot be connected to any recall purportedly related to the defect
allegations espoused by Plaintiffs in this case.
AHM' EPLY IN PPOSITION TO LAINTIFFS ESPONSE AND
OTION TO TRIKE URPORTED UMMARY UDGMENT VIDENCE AGE 1
Plaintiffs offer no competent summary judgment evidence of another essential element
of their causes of action – a causative nexus between the alleged defect and the
decedent’s injuries.
Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to
AHM’s challenge of their negligence per se and gross negligence claims.
Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to
AHM’s challenge of Plaintiff Raul Macia’s standing as a wrongful death beneficiary.
Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to
AHM’s challenge of their punitive damages claim.
For all of these reasons, AHM is entitled to summary judgment on all of Plaintiffs’ claims
and causes of action.
I.
MOTION TO STRIKE PLAINTIFFS' SUMMARY JUDGMENT EXHIBIT
Summary judgment evidence must be admissible under the rules of evidence. United
Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (emphasis added); see, e.g.,
Thompson v. King, 12-06-00059-CV, 2007 WL 1064078, at *2 (Tex. App.—Tyler Apr. 11, 2007,
pet. denied); TEX. R. CIV. P. 166a(f). In discussing the propriety of summary judgment evidence,
Texas courts have made clear that “simply attaching a document to a pleading neither makes
the document admissible as evidence, dispenses with proper foundational evidentiary
requirements, or relieves a litigant of complying with other admissibility requirements.” See
Gunville v. Gonzales, 08-13-00357-CV, 2016 WL 1253478, at *7 (Tex. App.—El Paso Mar. 30,
2016, no pet.). As such, inadmissible evidence offered in a summary judgment context does not
enter the summary judgment record as permissible evidence to support a party’s position.
Summary judgment is thus appropriate when a litigant depends upon inadmissible evidence to
survive a summary judgment challenge.
A. Plaintiffs' purported evidence lacks probative value and is thus legally insufficient
to defeat a summary judgment challenge.
In their response to AHM’s Motion for Summary Judgment, Plaintiffs offered a single-
page document attached to the end of Plaintiffs’ Response as "Exhibit A." Plaintiffs’ Response,
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 2
however, offered no context or other information for this document. In fact, Plaintiffs neither
describe nor reference the exhibit in the body of their Response. Plaintiffs’ exhibit is thus facially
ambiguous and, consequently, lacks any probative value in this case.
The only information ascertainable from the exhibit is that which is facially apparent. This
information reveals only that the exhibit purports to be a mailing labeled “Safety Recall Notice”
from American Honda Motor Co., Inc. to Yolanda Juarez. The document, however, contains no
information identifying the recall at issue, the vehicle components subject to that recall, or even
the date of the mailing. The document only contains an "Information Change Card" that would
enable Yolanda Juarez to update the ownership status of the unidentified vehicle. As such,
Plaintiffs’ purported proof is not probative of any factual issues in this case - much less enough
to alone provide legally sufficient evidence of each of the elements of Plaintiffs’ causes of
action.
Additionally, without any context for the circumstances surrounding Plaintiffs’ document,
the evidence fails to qualify as competent and admissible evidence under the equal inference
rule, as no information exists to draw conclusions from this exhibit about any of the relevant
matters to the case. See Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (describing the
equal inference rule as: "Thus, in cases with only slight circumstantial evidence, something else
must be found in the record to corroborate the probability of the fact's existence or non-
existence….Properly applied, the equal inference rule is but a species of the no evidence rule,
emphasizing that when the circumstantial evidence is so slight that any plausible inference is
purely a guess, it is in legal effect no evidence.") (Phillips, C.J., concurring in part and dissenting
in part (five justices joined in the section of the opinion quoted herein)).
B. Plaintiffs’ purported evidence is inadmissible under the Texas Rules of Evidence
and should thus be stricken from the summary judgment record.
Even apart from the substantive deficiency of Plaintiffs’ Exhibit A, the exhibit does not
qualify as competent evidence because it is not authenticated. Since summary judgment
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 3
evidence must conform to Texas evidentiary requirements, it must be authenticated. See, e.g.,
Gunville v. Gonzales, 2016 WL 1253478, at *10. This authentication requirement is necessary
for the offer of proof to qualify as competent evidence under Tex. R. Evid. 901. Absent
authentication, the item lacks probative value because no proof exists “that the item is what the
proponent claims it is.” See TEX. R. EVID. 901.
Here, Plaintiffs make no attempt to authenticate Exhibit A through any of the means of
authentication required by Tex. R. Evid. 901, et seq. Instead, Plaintiffs simply attached the
single-page document without any context, affidavits, or documentation proving up the exhibit's
origins. AHM can only assume this document was in Plaintiffs’ possession prior to the lawsuit,
as no party in this case has produced it in discovery.
Plaintiffs’ Exhibit A thus lacks the requisite indicia of reliability to satisfy Texas’
authenticity requirements, and as such, Exhibit A fails to qualify as competent evidence and
should be stricken from the summary judgment record.
II.
REPLY IN OPPOSITION TO PLAINTIFFS’ SUMMARY JUDGMENT RESPONSE
ARGUMENTS AND AUTHORITIES
A. AHM’S traditional and no evidence summary judgment motion should be granted
in its entirety because Plaintiffs offer no competent summary judgment evidence
to raise a genuine issue of material fact as to any of the elements of Plaintiffs’
causes of action.
Plaintiffs’ Response failed to satisfy the evidentiary burdens incumbent upon a summary
judgment respondent. In a no-evidence summary judgment context, once a movant has
identified the elements for which the other party lacks evidence, the burden shifts to the non-
movant to “produce[] summary judgment evidence raising a genuine issue of material fact.” See
TEX. R. CIV. P. 166a. The Texas Rules of Civil Procedure explicitly mandate that the respondent
meet this burden to survive a no-evidence summary judgment motion by stating that “the court
must grant the motion unless” sufficient evidence is produced. See TEX. R. CIV. P. 166a
(emphasis added). This burden applies to each of the elements of Plaintiffs’ claims identified by
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 4
the summary judgment motion as lacking sufficient evidence. See Dworschak v. Transocean
Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 195 (Tex. App.—Houston [14th Dist.] 2011,
no pet.) ("The trial court must grant the motion unless the non-movant produces summary-
judgment evidence raising a genuine issue of material fact on each of the challenged
elements.").
In assessing whether Plaintiffs met this burden, Texas courts have emphasized that:
We sustain a no-evidence summary judgment if: (1) there is a complete absence
of proof of a vital fact; (2) the rules of law or evidence bar the court 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 scintilla;or (4) the evidence conclusively
establishes the opposite of a vital fact.
Less than a scintilla of evidence exists when the evidence offered to prove a vital
fact is so weak it does no more than create the mere surmise or suspicion of its
existence and, in legal effect, is no evidence. More than a scintilla of evidence
exists when the evidence rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions as to the existence of the vital fact.
Dworschak, 352 S.W.3d at 195–96 (internal citations omitted).
In this case, pursuant to Tex. R. Civ. P. 166a, AHM’s motion enumerated the specific
causes of action and related elements for which Plaintiffs lacked evidence. AHM's motion
specifically identified Plaintiffs’ product liability claims against AHM, emphasizing the necessity
for expert evidence to support multiple elements of such claims, such as defect and causation.
See, e.g., Ford Motor Co. v. Ledesma, 242 S.W.3d, 32, 42-43 (Tex. 2007). AHM’s identification
of elements and subsequent analysis regarding the evidentiary requirements for such elements
far exceeds the specificity required by Tex. R. Civ. P. 166a. See Thompson v. King, 12-06-
00059-CV, 2007 WL 1064078, at *3 (Tex. App.—Tyler Apr. 11, 2007, pet. denied) ("The movant
need not produce any proof in support of its no evidence claim."). As a result, AHM's Motion
shifted the burden to Plaintiffs to produce legally sufficient evidence for the challenged elements
and causes of action. Plaintiffs, however, did not meet this burden.
As described at length in the preceding Motion to Strike, Plaintiffs seek to create a fact
issue on their defect claim by offering an unauthenticated and ambiguous single-page document
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 5
that does not identify any specific recall that would have connected in any way to the
components (e.g. driver’s airbag system) that Plaintiffs allege to be defective. The document
also does not provide the timeframe in which the mailing arose, much less provide any causal
link between the alleged vehicle defect and the decedent’s injuries in the subject accident.
Notwithstanding its inadmissibility, Plaintiffs’ exhibit is less than a scintilla of evidence as it is so
weak it does no more than create a mere surmise or suspicion. Because Plaintiffs’ sole offer of
proof cannot constitute legally sufficient evidence to raise a genuine issue of material fact as to
an essential element of their defect claims, summary judgment is proper.
Furthermore, Plaintiffs cannot overcome a summary judgment challenge by generically
listing a series of questions related to issues in the case. By imposing a burden on the non-
movant to affirmatively produce supporting evidence, Tex. R. Civ. P. 166a mandates more than
such a meager response to overcome a no-evidence summary judgment motion. Therefore,
Plaintiffs’ list of questions, which are offered without any supporting analysis or competent
summary judgment evidence, is simply insufficient to defeat AHM’s Motion.
Finally, Plaintiffs contend that AHM's Motion “takes a very narrow view” and urges the
Court to, instead, “adopt a much wider perspective.” Such language consists of mere rhetoric
devoid of any evidentiary value or legally supportable justification to overcome the summary
judgment burdens established by Tex. R. Civ. P. 166a. And, Plaintiffs’ criticism of AHM's Motion
ignores—and neglects to even address—the extensive Texas precedent cited in AHM’s Motion.
For all these reasons, Plaintiffs’ response fails to furnish even a scintilla of competent
evidence in support of their product liabilityclaims against AHM and, accordingly, summary
judgment on such claims is appropriate.
B. Plaintiffs’ failure to designate any experts to address essential elements of
Plaintiffs’ product liability claims further renders Summary Judgment appropriate
in this case.
Plaintiffs’ lack of evidence for their claims against AHM is underscored by their failure to
designate expert witnesses in support of the essential elements of their claims against AHM. As
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 6
described in AHM's Motion, Plaintiffs failed to timely designate expert witnesses before the July
18, 2016 deadline for Plaintiffs’ Expert Witness Designations set by this Court's Docket Control
Order. Plaintiffs’ failure to timely designate any experts precludes them from offering any expert
evidence in this case. See TEX. R. CIV. P. 193.6; see also, White v. Browning, 03-04-00273-CV,
2006 WL 151980, at *2 (Tex. App.—Austin Jan. 19, 2006, pet. denied). And, such a failure to
timely designate expert witnesses precludes the consideration of such expert testimony as
summary judgment evidence. See Cunningham v. Columbia/St. David's Healthcare Sys., L.P.,
185 S.W.3d 7, 10–11 (Tex. App.—Austin 2005, no pet.) (“In order for a trial court to consider the
plaintiff's expert's testimony as summary judgment evidence, the plaintiff must have timely
designated that expert as *11 a testifying witness.”). In causes in which expert testimony is
required, as is the case with Plaintiffs’ product liability claims, a plaintiff’s absence of expert
evidence justifies summary judgment against such claims. See, e.g., Thompson v. King, 12-06-
00059-CV, 2007 WL 1064078, at *4 (Tex. App.—Tyler Apr. 11, 2007, pet. denied).
Notwithstanding the procedural preclusion of Plaintiffs’ experts, Plaintiffs served a
deficient expert witness designation shortly after AHM’s Motion was filed. See Pls.' Designation
of Experts [sic] Witnesses, Ex. A. Plaintiffs’ designation identified only two witnesses: (1) the
medical examiner that performed an autopsy on Ms. Juarez; and (2) Plaintiffs’ own attorney, for
the issue of attorneys’ fees.
Neither of the two purported experts identified by Plaintiffs were designated to provide
testimony on the alleged defects in the subject Honda Civic, including considerations of
purported feasible alternative designs or the existence of a defect in the vehicle. Moreover,
neither of the two purported experts is designated to offer a biomechanical analysis linking the
alleged defect in the subject vehicle to the injuries sustained by Yolanda Juarez. In fact,
Plaintiffs’ designation provided almost no information regarding “the general substance of the
expert’s mental impressions and opinions and a brief summary of the basis for them,” in
contravention of the express requirements of Tex. R. Civ. P. 194.2. Thus, not only was Plaintiffs’
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 7
designation untimely, it was also deficient and offers nothing to support or raise a genuine issue
of material fact concerning the elements of Plaintiffs’ causes of action against AHM.
AHM does not need to disprove all the elements of Plaintiffs’ causes of action; it must
disprove only one. See Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). Accordingly, this
Reply and AHM's Motion, which identified multiple elements lacking sufficient evidence, meets
this burden and renders summary judgment proper in this case.
III.
CONCLUSION
Plaintiffs’ superficial response coupled with the nonexistent brief that Plaintiffs assured
this Court would be filed, underscores Plaintiffs’ lack of evidence for their baseless claims
against AHM in this matter.
WHEREFORE, PREMISES CONSIDERED, Defendant American Honda Motor Co., Inc.
respectfully requests that the Court grant AHM's No-Evidence and Traditional Motion for
Summary Judgment in its entirety, render judgment that Plaintiffs take nothing by this cause of
action, award American Honda Motor Co., Inc. the costs incurred in the defense of this matter,
and grant it such other and further relief, both at law and in equity, to which it may show itself
justly entitled.
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 8
Respectfully submitted,
/s/ Yesenia E. Cardenas-Colenso .
KURT C. KERN
State Bar No. 11334600
kurt.kern@bowmanandbrooke.com
YESENIA E. CARDENAS-COLENSO
State Bar No. 24047542
yesenia.cardenas@bowmanandbrooke.com
HUNTER B. OLIVER
State Bar No. 24088156
hunter.oliver@bowmanandbrooke.com
BOWMAN AND BROOKE LLP
2501 North Harwood Street, Suite 1700
Dallas, Texas 75201
Telephone: (972) 616-1700
Facsimile: (972) 616-1701
COUNSEL FOR DEFENDANT AMERICAN
HONDA MOTOR COMPANY, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
electronically forwarded to all known counsel of record in this cause through E-File.txcourts.gov
in accordance with the Texas Rules of Civil Procedure on this 9th day of September, 2016.
/s/ Yesenia E. Cardenas-Colenso .
AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND
MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 9
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CAUSE NO. 48636 VALENTIN JUAREZ, and IN THE DISTRICT COUR BERTHA JUAREZ, Husband and Wife and NEXT FRIEND OF YOLANDA JUAREZ, Deceased, and RAUL MACIAS, Plaintiffs, JUDICIAL DISTRICT CITY OF HOUSTON, HOUSTON POLICE DEPARTMENT, LANICE TOBIAS, JR., HARRIS COUNTY SHERIFF’S DEPARTMENT, AND AMERICAN HONDA MOTOR COMPANY, INC., Defendants. HARRIS COUNTY, TEXAS DEFENDANT AMERICAN HONDA MOTOR CO., INC.’S REPLY IN OPPOSITION TO PLAINTIFFS' SUMMARY JUDGMENT RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs’ Response to Defendant American Honda Motor Co., Inc.’s (“AHM”) No- Evidence and Traditional Motions for Summary Judgment (“Response” and “Motion,” respectively) grossly failed to satisfy Plaintiffs’ burden to present legally sufficient evidence to raise a genuine issue of material fact on any of multitude of elements of Plaintiffs’ negligence and/or product liability actions against AHM. Summary judgment is thus proper because: Plaintiffs offer competent summary judgment evidence, by way of expert testimony, to raise a genuine issue of material fact concerning any of the elements Plaintiffs’ cause of action with respect to the subject Honda Civic Plaintiffs’ only piece of “evidence” is a single, authenticated document that is inadmissible under the Texas Rules of Evidence. As such, the Texas Rules mandate that the Court strike Plaintiffs’ purported proof from the summary judgment record. Even if considered competent summary judgment evidence, Plaintiffs’ unanalyzed and unverified document cannot be connected to any recall purportedly related to the defect allegations espoused by Plaintiffs in this case. AHM' EPLY IN PPOSITION TO LAINTIFFS ESPONSE AND OTION TO TRIKE URPORTED UMMARY UDGMENT VIDENCE AGE 1 Plaintiffs offer no competent summary judgment evidence of another essential element of their causes of action – a causative nexus between the alleged defect and the decedent’s injuries. Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to AHM’s challenge of their negligence per se and gross negligence claims. Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to AHM’s challenge of Plaintiff Raul Macia’s standing as a wrongful death beneficiary. Plaintiffs did not respond to, nor offer any summary judgment evidence, in response to AHM’s challenge of their punitive damages claim. For all of these reasons, AHM is entitled to summary judgment on all of Plaintiffs’ claims and causes of action. I. MOTION TO STRIKE PLAINTIFFS' SUMMARY JUDGMENT EXHIBIT Summary judgment evidence must be admissible under the rules of evidence. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (emphasis added); see, e.g., Thompson v. King, 12-06-00059-CV, 2007 WL 1064078, at *2 (Tex. App.—Tyler Apr. 11, 2007, pet. denied); TEX. R. CIV. P. 166a(f). In discussing the propriety of summary judgment evidence, Texas courts have made clear that “simply attaching a document to a pleading neither makes the document admissible as evidence, dispenses with proper foundational evidentiary requirements, or relieves a litigant of complying with other admissibility requirements.” See Gunville v. Gonzales, 08-13-00357-CV, 2016 WL 1253478, at *7 (Tex. App.—El Paso Mar. 30, 2016, no pet.). As such, inadmissible evidence offered in a summary judgment context does not enter the summary judgment record as permissible evidence to support a party’s position. Summary judgment is thus appropriate when a litigant depends upon inadmissible evidence to survive a summary judgment challenge. A. Plaintiffs' purported evidence lacks probative value and is thus legally insufficient to defeat a summary judgment challenge. In their response to AHM’s Motion for Summary Judgment, Plaintiffs offered a single- page document attached to the end of Plaintiffs’ Response as "Exhibit A." Plaintiffs’ Response, AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 2 however, offered no context or other information for this document. In fact, Plaintiffs neither describe nor reference the exhibit in the body of their Response. Plaintiffs’ exhibit is thus facially ambiguous and, consequently, lacks any probative value in this case. The only information ascertainable from the exhibit is that which is facially apparent. This information reveals only that the exhibit purports to be a mailing labeled “Safety Recall Notice” from American Honda Motor Co., Inc. to Yolanda Juarez. The document, however, contains no information identifying the recall at issue, the vehicle components subject to that recall, or even the date of the mailing. The document only contains an "Information Change Card" that would enable Yolanda Juarez to update the ownership status of the unidentified vehicle. As such, Plaintiffs’ purported proof is not probative of any factual issues in this case - much less enough to alone provide legally sufficient evidence of each of the elements of Plaintiffs’ causes of action. Additionally, without any context for the circumstances surrounding Plaintiffs’ document, the evidence fails to qualify as competent and admissible evidence under the equal inference rule, as no information exists to draw conclusions from this exhibit about any of the relevant matters to the case. See Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (describing the equal inference rule as: "Thus, in cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact's existence or non- existence….Properly applied, the equal inference rule is but a species of the no evidence rule, emphasizing that when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence.") (Phillips, C.J., concurring in part and dissenting in part (five justices joined in the section of the opinion quoted herein)). B. Plaintiffs’ purported evidence is inadmissible under the Texas Rules of Evidence and should thus be stricken from the summary judgment record. Even apart from the substantive deficiency of Plaintiffs’ Exhibit A, the exhibit does not qualify as competent evidence because it is not authenticated. Since summary judgment AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 3 evidence must conform to Texas evidentiary requirements, it must be authenticated. See, e.g., Gunville v. Gonzales, 2016 WL 1253478, at *10. This authentication requirement is necessary for the offer of proof to qualify as competent evidence under Tex. R. Evid. 901. Absent authentication, the item lacks probative value because no proof exists “that the item is what the proponent claims it is.” See TEX. R. EVID. 901. Here, Plaintiffs make no attempt to authenticate Exhibit A through any of the means of authentication required by Tex. R. Evid. 901, et seq. Instead, Plaintiffs simply attached the single-page document without any context, affidavits, or documentation proving up the exhibit's origins. AHM can only assume this document was in Plaintiffs’ possession prior to the lawsuit, as no party in this case has produced it in discovery. Plaintiffs’ Exhibit A thus lacks the requisite indicia of reliability to satisfy Texas’ authenticity requirements, and as such, Exhibit A fails to qualify as competent evidence and should be stricken from the summary judgment record. II. REPLY IN OPPOSITION TO PLAINTIFFS’ SUMMARY JUDGMENT RESPONSE ARGUMENTS AND AUTHORITIES A. AHM’S traditional and no evidence summary judgment motion should be granted in its entirety because Plaintiffs offer no competent summary judgment evidence to raise a genuine issue of material fact as to any of the elements of Plaintiffs’ causes of action. Plaintiffs’ Response failed to satisfy the evidentiary burdens incumbent upon a summary judgment respondent. In a no-evidence summary judgment context, once a movant has identified the elements for which the other party lacks evidence, the burden shifts to the non- movant to “produce[] summary judgment evidence raising a genuine issue of material fact.” See TEX. R. CIV. P. 166a. The Texas Rules of Civil Procedure explicitly mandate that the respondent meet this burden to survive a no-evidence summary judgment motion by stating that “the court must grant the motion unless” sufficient evidence is produced. See TEX. R. CIV. P. 166a (emphasis added). This burden applies to each of the elements of Plaintiffs’ claims identified by AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 4 the summary judgment motion as lacking sufficient evidence. See Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 195 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ("The trial court must grant the motion unless the non-movant produces summary- judgment evidence raising a genuine issue of material fact on each of the challenged elements."). In assessing whether Plaintiffs met this burden, Texas courts have emphasized that: We sustain a no-evidence summary judgment if: (1) there is a complete absence of proof of a vital fact; (2) the rules of law or evidence bar the court 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 scintilla;or (4) the evidence conclusively establishes the opposite of a vital fact. Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak it does no more than create the mere surmise or suspicion of its existence and, in legal effect, is no evidence. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair- minded people to differ in their conclusions as to the existence of the vital fact. Dworschak, 352 S.W.3d at 195–96 (internal citations omitted). In this case, pursuant to Tex. R. Civ. P. 166a, AHM’s motion enumerated the specific causes of action and related elements for which Plaintiffs lacked evidence. AHM's motion specifically identified Plaintiffs’ product liability claims against AHM, emphasizing the necessity for expert evidence to support multiple elements of such claims, such as defect and causation. See, e.g., Ford Motor Co. v. Ledesma, 242 S.W.3d, 32, 42-43 (Tex. 2007). AHM’s identification of elements and subsequent analysis regarding the evidentiary requirements for such elements far exceeds the specificity required by Tex. R. Civ. P. 166a. See Thompson v. King, 12-06- 00059-CV, 2007 WL 1064078, at *3 (Tex. App.—Tyler Apr. 11, 2007, pet. denied) ("The movant need not produce any proof in support of its no evidence claim."). As a result, AHM's Motion shifted the burden to Plaintiffs to produce legally sufficient evidence for the challenged elements and causes of action. Plaintiffs, however, did not meet this burden. As described at length in the preceding Motion to Strike, Plaintiffs seek to create a fact issue on their defect claim by offering an unauthenticated and ambiguous single-page document AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 5 that does not identify any specific recall that would have connected in any way to the components (e.g. driver’s airbag system) that Plaintiffs allege to be defective. The document also does not provide the timeframe in which the mailing arose, much less provide any causal link between the alleged vehicle defect and the decedent’s injuries in the subject accident. Notwithstanding its inadmissibility, Plaintiffs’ exhibit is less than a scintilla of evidence as it is so weak it does no more than create a mere surmise or suspicion. Because Plaintiffs’ sole offer of proof cannot constitute legally sufficient evidence to raise a genuine issue of material fact as to an essential element of their defect claims, summary judgment is proper. Furthermore, Plaintiffs cannot overcome a summary judgment challenge by generically listing a series of questions related to issues in the case. By imposing a burden on the non- movant to affirmatively produce supporting evidence, Tex. R. Civ. P. 166a mandates more than such a meager response to overcome a no-evidence summary judgment motion. Therefore, Plaintiffs’ list of questions, which are offered without any supporting analysis or competent summary judgment evidence, is simply insufficient to defeat AHM’s Motion. Finally, Plaintiffs contend that AHM's Motion “takes a very narrow view” and urges the Court to, instead, “adopt a much wider perspective.” Such language consists of mere rhetoric devoid of any evidentiary value or legally supportable justification to overcome the summary judgment burdens established by Tex. R. Civ. P. 166a. And, Plaintiffs’ criticism of AHM's Motion ignores—and neglects to even address—the extensive Texas precedent cited in AHM’s Motion. For all these reasons, Plaintiffs’ response fails to furnish even a scintilla of competent evidence in support of their product liabilityclaims against AHM and, accordingly, summary judgment on such claims is appropriate. B. Plaintiffs’ failure to designate any experts to address essential elements of Plaintiffs’ product liability claims further renders Summary Judgment appropriate in this case. Plaintiffs’ lack of evidence for their claims against AHM is underscored by their failure to designate expert witnesses in support of the essential elements of their claims against AHM. As AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 6 described in AHM's Motion, Plaintiffs failed to timely designate expert witnesses before the July 18, 2016 deadline for Plaintiffs’ Expert Witness Designations set by this Court's Docket Control Order. Plaintiffs’ failure to timely designate any experts precludes them from offering any expert evidence in this case. See TEX. R. CIV. P. 193.6; see also, White v. Browning, 03-04-00273-CV, 2006 WL 151980, at *2 (Tex. App.—Austin Jan. 19, 2006, pet. denied). And, such a failure to timely designate expert witnesses precludes the consideration of such expert testimony as summary judgment evidence. See Cunningham v. Columbia/St. David's Healthcare Sys., L.P., 185 S.W.3d 7, 10–11 (Tex. App.—Austin 2005, no pet.) (“In order for a trial court to consider the plaintiff's expert's testimony as summary judgment evidence, the plaintiff must have timely designated that expert as *11 a testifying witness.”). In causes in which expert testimony is required, as is the case with Plaintiffs’ product liability claims, a plaintiff’s absence of expert evidence justifies summary judgment against such claims. See, e.g., Thompson v. King, 12-06- 00059-CV, 2007 WL 1064078, at *4 (Tex. App.—Tyler Apr. 11, 2007, pet. denied). Notwithstanding the procedural preclusion of Plaintiffs’ experts, Plaintiffs served a deficient expert witness designation shortly after AHM’s Motion was filed. See Pls.' Designation of Experts [sic] Witnesses, Ex. A. Plaintiffs’ designation identified only two witnesses: (1) the medical examiner that performed an autopsy on Ms. Juarez; and (2) Plaintiffs’ own attorney, for the issue of attorneys’ fees. Neither of the two purported experts identified by Plaintiffs were designated to provide testimony on the alleged defects in the subject Honda Civic, including considerations of purported feasible alternative designs or the existence of a defect in the vehicle. Moreover, neither of the two purported experts is designated to offer a biomechanical analysis linking the alleged defect in the subject vehicle to the injuries sustained by Yolanda Juarez. In fact, Plaintiffs’ designation provided almost no information regarding “the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them,” in contravention of the express requirements of Tex. R. Civ. P. 194.2. Thus, not only was Plaintiffs’ AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 7 designation untimely, it was also deficient and offers nothing to support or raise a genuine issue of material fact concerning the elements of Plaintiffs’ causes of action against AHM. AHM does not need to disprove all the elements of Plaintiffs’ causes of action; it must disprove only one. See Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). Accordingly, this Reply and AHM's Motion, which identified multiple elements lacking sufficient evidence, meets this burden and renders summary judgment proper in this case. III. CONCLUSION Plaintiffs’ superficial response coupled with the nonexistent brief that Plaintiffs assured this Court would be filed, underscores Plaintiffs’ lack of evidence for their baseless claims against AHM in this matter. WHEREFORE, PREMISES CONSIDERED, Defendant American Honda Motor Co., Inc. respectfully requests that the Court grant AHM's No-Evidence and Traditional Motion for Summary Judgment in its entirety, render judgment that Plaintiffs take nothing by this cause of action, award American Honda Motor Co., Inc. the costs incurred in the defense of this matter, and grant it such other and further relief, both at law and in equity, to which it may show itself justly entitled. AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 8 Respectfully submitted, /s/ Yesenia E. Cardenas-Colenso . KURT C. KERN State Bar No. 11334600 kurt.kern@bowmanandbrooke.com YESENIA E. CARDENAS-COLENSO State Bar No. 24047542 yesenia.cardenas@bowmanandbrooke.com HUNTER B. OLIVER State Bar No. 24088156 hunter.oliver@bowmanandbrooke.com BOWMAN AND BROOKE LLP 2501 North Harwood Street, Suite 1700 Dallas, Texas 75201 Telephone: (972) 616-1700 Facsimile: (972) 616-1701 COUNSEL FOR DEFENDANT AMERICAN HONDA MOTOR COMPANY, INC. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been electronically forwarded to all known counsel of record in this cause through E-File.txcourts.gov in accordance with the Texas Rules of Civil Procedure on this 9th day of September, 2016. /s/ Yesenia E. Cardenas-Colenso . AHM'S REPLY IN OPPOSITION TO PLAINTIFFS' RESPONSE AND MOTION TO STRIKE PURPORTED SUMMARY JUDGMENT EVIDENCE PAGE 9