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CAUSE NO. 2011-01896
LISETTE RAMIREZ § IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND §
TO CYNTHIA GARCIA RAMIREZ AND §
JESUS GARCIA RAMIREZ, MINORS, AS §
THE WRONGFUL DEATH
BENEFICIARIES OF ALONSO GARCIA,
DECEASED, PATRICIA RAMIREZ DE
GARCIA, DECEASED, AND JOHANNA
ARACELI GARCIA RAMIREZ,
DECEASED
JORGE ROSAS GONZALEZ ON BEHALF
OF ALL THE WRONGFUL DEATH
BENEFICIARIES OF MARGARITA
GARCIA SANCHEZ, DECEASED
ALFREDO NAVARRO ON BEHALF OF
ALL THE WRONGFUL DEATH
BENEFICIARIES OF MARIA LUISA HARRIS COUNTY, TEXAS
GARCIA SANCHEZ, DECEASED
VICTOR RAMIREZ LOPEZ ON BEHALF
OF ALL THE WRONGFUL DEATH
BENEFICIARIES OF CIRILA LOPEZ
GARCIA DECEASED
PLAINTIFFS
JOSE RAMIREZ ALONSO,
JORGE RAMIREZ LOPEZ,
LUCIA RAMIREZ LOPEZ, CRISTINA
ALVAREZ, JORGE ROSAS GONZALEZ,
DEOLINDA ROSAS GARCIA, MOISES
DE JESUS ROSAS GARCIA, DIOVENI
MARGARITA ROSAS GARCIA,
ALFREDO NAVARRO, ALFREDO
NAVARRO GARCIA, MARICELA
NAVARRO GARCIA AND GABRIELA
NAVARRO GARCIA
INTERVENORS
VS.
COOPER TIRE & RUBBER CO.
DEFENDANT 157. JUDICIAL DISTRICT
DEFENDANT COOPER TIRE & RUBBER COMPANY, INC.’S
SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO
PLAINTIFFS’ SECOND AMENDED PETITION AND
INTERVENORS’ ORIGINAL PETITION IN INTERVENTION
COMES NOW, Cooper Tire & Rubber Company, Inc., Defendant, in the above-entitled
and numbered cause, and files its Special Exceptions and Original Answer to Plaintiffs’ Second
Amended Petition and Intervenors’ Original Petition in Intervention and would respectfully show
unto this Court as follows:
SPECIAL EXCEPTIONS TO PLAINTIFFS’ SECOND AMENDED PETITION AND
INTERVENORS’ ORIGINAL PETITION IN INTERVENTION
Cooper files its Special Exceptions to Plaintiffs’ Second Amended Petition and
Intervenors’ Original Petition in Intervention and would plead unto this Court as follows:
Pleading Standard Cooper cannot prepare a defense to a lawsuit unless it is reasonably
apprised of the specific facts upon which the suit is based. Consequently, Plaintiffs’/Intervenors’
pleadings are deficient and fail to give Cooper fair and adequate notice of the facts asserted
against Cooper as required by T R. C P. 47, and the Court should order
Plaintiffs/Intervenors to re-plead their Petition/Intervention to reasonably allege the factual basis
for their claims. Roark y. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (A Petition is sufficient if it
gives fair and adequate notice of the facts upon which the pleader bases his claim).
Defective Notice of Defect Claimed A plaintiff advancing a cause of action for product
liability (whether pled as negligence, strict liability or breach of warranty) must demonstrate at a
minimum that: (1) there was a defect in the product at the time it left the manufacturer’s control;
and (2) the defect was the producing cause of the plaintiffs’ injuries or damages. Hyundai Motor
Co. v. Rodriguez, 995 S.W.2d 661, 665 (Tex. 1999).
Texas law recognizes three categories of defect — defect in manufacture, defect in design,
and marketing defects (failure to warn). Temple Eastex v. Old Orchard Creek Partners, Ltd.,
848 S.W.2d 724, 732 (Tex. App.—Dallas 1992, writ denied). There are insufficient facts pled in
Plaintiffs’/Intervenors’ pleading regarding the manner, if any, the subject tire was defective in its
design, manufacture or marketing.
Inadequate Pleadings to Support a Design Defect A design defect exists when there is a
defect in the design process of the product such that every unit produced according to that design
is unreasonably dangerous. Temple Eastex, 848 S.W.2d at 732. A design defect renders a
product unreasonably dangerous taking into consideration the utility of the product and the risk
involved in its use. General Motors Corporation v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999).
The sine qua non ofa design defect claim is the claim that there was an alternative design
that was safer than the one adopted. 3 T rac. & R § 82.005 (a)(1).
“safer alternative design” means a product design other than the one actually used that in
reasonable probability (i) would have prevented or significantly reduced the risk of the
claimant’s damages without substantially impairing the product’s utility; and (ii) was
economically and technologically feasible at the time the product left the control of the
manufacturer or seller by the application of existing or reasonably achievable scientific
knowledge. RAC. &R § 82.005(b).
At the very least, to plead a design defect claim under Texas law, a plaintiff must identify
the allegedly defective component, the nature of the danger posed by that component, the safer
alternative design for the component and how the omission of the design was the cause of the
plaintiff's injury. Plaintiffs/Intervenors in this case have not asserted that there were reasonable,
economical, and feasible alternatives available to Cooper. Therefore, Cooper specially excepts
to Section V of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in
Intervention.
Defective Notice of Claimed Manufacturing Defect There are also no facts pled to
support a claim based on manufacturing defect. Under Texas law, a manufacturing defect exists
when a finished product deviates, in terms of its construction or quality, from the specifications
or planned output in a manner that renders it unreasonably dangerous. Ford Motor Company v.
Ledesma, 242 §.W.3d 32, 51 Tex. Sup. J. 250 (Tex. 2008); American Tobacco Co., Inc. v.
Grinnell, 951 S.W.2d 420, 434 (Tex. 1997); Lucas v. Tex. Indus., Inc., 696 $.W.2d 372, 377-78
(Tex. 1984). Thus, a manufacturing defect is a deviation from the planned output. Jd.
There are no pleadings to support a claim that a component of the subject tire deviated
from the design in any manner and no explanation as to how a manufacturing defect, if any, is
causally related to Plaintiffs’/Intervenors’ claimed damages. Therefore, Cooper specially
excepts to Section V of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition
in Intervention.
Inadequate Pleading of Negligence Claims against Cooper Plaintiffs/Intervenors failed
to adequately plead or provide fair and adequate notice of their negligence claims against Cooper
and the Court should order Plaintiffs/Intervenors to re-plead their petition to reasonably allege
the actual basis of their negligence claims. Agnew v. Coleman County Electric Cooperative, 153
Tex 587, 272 S.W.2d 877, 879 (1954) (special exception may be used to require party to state
specific acts of negligence.) Therefore, Cooper specially excepts to Section V of Plaintiffs’
Second Amended Petition and Intervenors’ Original Petition in Intervention.
Defective Notice Regarding Plaintiffs’/Intervenors” Damages/Injuries. Plaintiffs/
Intervenors have failed to provide fair notice of the nature of each Plaintiffs’/Intervenors’
separate claims for damages. Accordingly, Cooper specifically excepts to Section VI of
Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention.
No Pleadings to Specify Maximum Damages Claimed Plaintiffs/Intervenors have failed
to state the maximum amount of damages they claim. Therefore, Cooper specially excepts to
Section VI of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in
Intervention. -RC ROC. 47.
Cooper requests that this Court, pursuant to the Texas Rules of Civil Procedure, sustain
these special exceptions and order that Plaintiffs/Intervenors, within twenty (20) days, amend
their pleadings, and that, if Plaintiffs/Intervenors fail or refuse to amend, the actions be
dismissed.
GENERAL DE L
Cooper asserts a general denial as is authorized by Rule 92 of the T oRC . P., and
Cooper respectfully requests that Plaintiffs/Intervenors be required to prove the charges and
allegations against Cooper by a preponderance of the evidence as is required by the Constitution
and the laws of the State of Texas.
OTHER DEFENSES
In further answer, Cooper affirmatively avers that the occurrence, injuries and damages
made the basis of this suit were proximately caused and produced in whole or in part by the acts
and omissions of Plaintiffs/Intervenors and/or third parties over whom Cooper had no control nor
right of control at the time of the occurrence in question, and such conduct was the proximate
and/or sole proximate, and/or producing and/or sole producing, and/or new and independent
cause of any injuries or damages to Plaintiffs/Intervenors. Such conduct includes, but is not
limited to, the failure to wear seatbelts or other proper safety devices. Cooper also contends the
occurrence, injury, and damages, if any, were the result of intervening and/or superseding causes.
Cooper reserves its right to submit the foregoing persons or entities, known or unknown, shown by
the evidence as being responsible for their proportionate share of responsibility under Texas Civil
Practice & Remedies Code Ch. 33, whether the result of their contributory negligence, assumption
of the risk, or any other breach of a legal standard permitted under the statute.
Pleading further, alternatively, Plaintiffs’/Intervenors’ claims are barred and/or preempted,
in whole or in part, by the federal legislation and regulations governing tires, including the Motor
Vehicle Safety Act and the regulations promulgated by the National Highway Traffic Safety
Administration.
Cooper further answers that the subject tire was reasonably fit, suitable and safe for its
intended purpose.
Cooper asserts the provisions of Sections 82.005 and 82.008 of the Texas Civil Practice &
Remedies Code as they relate and/or are applicable to Plaintiffs’/Intervenors’ design, manufacturing
and marketing defect allegations against Cooper, if any.
Pleading further, alternatively, Cooper states that the tire made the basis of
Plaintiffs’/Intervenors’ suit complied with all applicable safety standards. RAC
. § 82.008(a) (Vernon 2003).
For further answer, Cooper invokes its legal right to a reduction of any dollar verdict which
may be rendered in this cause by credit for payments made by Plaintiffs/Intervenors or other persons
or entities, or by percentage reductions to which Cooper would be entitled as a result of jury
findings against Plaintiffs/Intervenors or parties other than Cooper. In this connection, Cooper
reserves the right to submit issues against parties, including but not limited to Plaintiffs/Intervenors,
who may be present in this case or absent from the case at the time the matter is passed to the jury
for fact determinations.
Cooper asserts the limitation on recovery of medical or healthcare expenses, as set forth in
Section 41.0105 of the TEXAS IVIL RACTICE EMEDIES ODE, which provides that recovery of
medical or health care expenses incurred be limited to the amount actually paid or incurred by or on
behalf of the claimant.
APPLICATION OF MEXICAN LAW
For further answer, if necessary, Cooper alleges that Plaintiffs’/Intervenors’ claims are
governed by the laws of the State of Jalisco, Republic of Mexico.
RESERVATION OF RIGHTS
Cooper reserves the right to amend this Answer as permitted by the Texas Rules of Civil
Procedure.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant, Cooper Tire & Rubber
Company, Inc., prays that Plaintiffs/Intervenors take nothing by their causes of action against
Cooper, assess costs against Plaintiffs/Intervenors, and award Cooper all other relief, in law and
in equity, to which Cooper is justly entitled.
Respectfully submitted,
JOHNSON, TRENT, WEST & TAYLOR, L.L.P.
By: /s/ Michael A. Pita
T. Christopher Trent
Texas Bar No. 20209400
Raphael C. Taylor
Texas Bar No. 00788514
Michael A. Pita
State Bar No. 24034628
919 Milam, Suite 1700
Houston, Texas 77002
(713) 222-2323 — Telephone
(713) 222-2226 — Facsimile
ATTORNEYS FOR DEFENDANTS
COOPER TIRE & RUBBER COMPANY
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument was forwarded to all
counsel of record in accordance with the Texas Rules of Civil Procedure on the 23 day of January
Larry W. Lawrence, Jr. Via ECF and Certified Mail/RRR
AWRENCE IRM, P.C.
3112 Windsor Road, Suite A234
Austin, Texas
/s/ Michael A. Pita
Michael A. Pita
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CAUSE NO. 2011-01896 LISETTE RAMIREZ § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § TO CYNTHIA GARCIA RAMIREZ AND § JESUS GARCIA RAMIREZ, MINORS, AS § THE WRONGFUL DEATH BENEFICIARIES OF ALONSO GARCIA, DECEASED, PATRICIA RAMIREZ DE GARCIA, DECEASED, AND JOHANNA ARACELI GARCIA RAMIREZ, DECEASED JORGE ROSAS GONZALEZ ON BEHALF OF ALL THE WRONGFUL DEATH BENEFICIARIES OF MARGARITA GARCIA SANCHEZ, DECEASED ALFREDO NAVARRO ON BEHALF OF ALL THE WRONGFUL DEATH BENEFICIARIES OF MARIA LUISA HARRIS COUNTY, TEXAS GARCIA SANCHEZ, DECEASED VICTOR RAMIREZ LOPEZ ON BEHALF OF ALL THE WRONGFUL DEATH BENEFICIARIES OF CIRILA LOPEZ GARCIA DECEASED PLAINTIFFS JOSE RAMIREZ ALONSO, JORGE RAMIREZ LOPEZ, LUCIA RAMIREZ LOPEZ, CRISTINA ALVAREZ, JORGE ROSAS GONZALEZ, DEOLINDA ROSAS GARCIA, MOISES DE JESUS ROSAS GARCIA, DIOVENI MARGARITA ROSAS GARCIA, ALFREDO NAVARRO, ALFREDO NAVARRO GARCIA, MARICELA NAVARRO GARCIA AND GABRIELA NAVARRO GARCIA INTERVENORS VS. COOPER TIRE & RUBBER CO. DEFENDANT 157. JUDICIAL DISTRICT DEFENDANT COOPER TIRE & RUBBER COMPANY, INC.’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ SECOND AMENDED PETITION AND INTERVENORS’ ORIGINAL PETITION IN INTERVENTION COMES NOW, Cooper Tire & Rubber Company, Inc., Defendant, in the above-entitled and numbered cause, and files its Special Exceptions and Original Answer to Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention and would respectfully show unto this Court as follows: SPECIAL EXCEPTIONS TO PLAINTIFFS’ SECOND AMENDED PETITION AND INTERVENORS’ ORIGINAL PETITION IN INTERVENTION Cooper files its Special Exceptions to Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention and would plead unto this Court as follows: Pleading Standard Cooper cannot prepare a defense to a lawsuit unless it is reasonably apprised of the specific facts upon which the suit is based. Consequently, Plaintiffs’/Intervenors’ pleadings are deficient and fail to give Cooper fair and adequate notice of the facts asserted against Cooper as required by T R. C P. 47, and the Court should order Plaintiffs/Intervenors to re-plead their Petition/Intervention to reasonably allege the factual basis for their claims. Roark y. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (A Petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim). Defective Notice of Defect Claimed A plaintiff advancing a cause of action for product liability (whether pled as negligence, strict liability or breach of warranty) must demonstrate at a minimum that: (1) there was a defect in the product at the time it left the manufacturer’s control; and (2) the defect was the producing cause of the plaintiffs’ injuries or damages. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 665 (Tex. 1999). Texas law recognizes three categories of defect — defect in manufacture, defect in design, and marketing defects (failure to warn). Temple Eastex v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 732 (Tex. App.—Dallas 1992, writ denied). There are insufficient facts pled in Plaintiffs’/Intervenors’ pleading regarding the manner, if any, the subject tire was defective in its design, manufacture or marketing. Inadequate Pleadings to Support a Design Defect A design defect exists when there is a defect in the design process of the product such that every unit produced according to that design is unreasonably dangerous. Temple Eastex, 848 S.W.2d at 732. A design defect renders a product unreasonably dangerous taking into consideration the utility of the product and the risk involved in its use. General Motors Corporation v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999). The sine qua non ofa design defect claim is the claim that there was an alternative design that was safer than the one adopted. 3 T rac. & R § 82.005 (a)(1). “safer alternative design” means a product design other than the one actually used that in reasonable probability (i) would have prevented or significantly reduced the risk of the claimant’s damages without substantially impairing the product’s utility; and (ii) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge. RAC. &R § 82.005(b). At the very least, to plead a design defect claim under Texas law, a plaintiff must identify the allegedly defective component, the nature of the danger posed by that component, the safer alternative design for the component and how the omission of the design was the cause of the plaintiff's injury. Plaintiffs/Intervenors in this case have not asserted that there were reasonable, economical, and feasible alternatives available to Cooper. Therefore, Cooper specially excepts to Section V of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention. Defective Notice of Claimed Manufacturing Defect There are also no facts pled to support a claim based on manufacturing defect. Under Texas law, a manufacturing defect exists when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ford Motor Company v. Ledesma, 242 §.W.3d 32, 51 Tex. Sup. J. 250 (Tex. 2008); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 434 (Tex. 1997); Lucas v. Tex. Indus., Inc., 696 $.W.2d 372, 377-78 (Tex. 1984). Thus, a manufacturing defect is a deviation from the planned output. Jd. There are no pleadings to support a claim that a component of the subject tire deviated from the design in any manner and no explanation as to how a manufacturing defect, if any, is causally related to Plaintiffs’/Intervenors’ claimed damages. Therefore, Cooper specially excepts to Section V of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention. Inadequate Pleading of Negligence Claims against Cooper Plaintiffs/Intervenors failed to adequately plead or provide fair and adequate notice of their negligence claims against Cooper and the Court should order Plaintiffs/Intervenors to re-plead their petition to reasonably allege the actual basis of their negligence claims. Agnew v. Coleman County Electric Cooperative, 153 Tex 587, 272 S.W.2d 877, 879 (1954) (special exception may be used to require party to state specific acts of negligence.) Therefore, Cooper specially excepts to Section V of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention. Defective Notice Regarding Plaintiffs’/Intervenors” Damages/Injuries. Plaintiffs/ Intervenors have failed to provide fair notice of the nature of each Plaintiffs’/Intervenors’ separate claims for damages. Accordingly, Cooper specifically excepts to Section VI of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention. No Pleadings to Specify Maximum Damages Claimed Plaintiffs/Intervenors have failed to state the maximum amount of damages they claim. Therefore, Cooper specially excepts to Section VI of Plaintiffs’ Second Amended Petition and Intervenors’ Original Petition in Intervention. -RC ROC. 47. Cooper requests that this Court, pursuant to the Texas Rules of Civil Procedure, sustain these special exceptions and order that Plaintiffs/Intervenors, within twenty (20) days, amend their pleadings, and that, if Plaintiffs/Intervenors fail or refuse to amend, the actions be dismissed. GENERAL DE L Cooper asserts a general denial as is authorized by Rule 92 of the T oRC . P., and Cooper respectfully requests that Plaintiffs/Intervenors be required to prove the charges and allegations against Cooper by a preponderance of the evidence as is required by the Constitution and the laws of the State of Texas. OTHER DEFENSES In further answer, Cooper affirmatively avers that the occurrence, injuries and damages made the basis of this suit were proximately caused and produced in whole or in part by the acts and omissions of Plaintiffs/Intervenors and/or third parties over whom Cooper had no control nor right of control at the time of the occurrence in question, and such conduct was the proximate and/or sole proximate, and/or producing and/or sole producing, and/or new and independent cause of any injuries or damages to Plaintiffs/Intervenors. Such conduct includes, but is not limited to, the failure to wear seatbelts or other proper safety devices. Cooper also contends the occurrence, injury, and damages, if any, were the result of intervening and/or superseding causes. Cooper reserves its right to submit the foregoing persons or entities, known or unknown, shown by the evidence as being responsible for their proportionate share of responsibility under Texas Civil Practice & Remedies Code Ch. 33, whether the result of their contributory negligence, assumption of the risk, or any other breach of a legal standard permitted under the statute. Pleading further, alternatively, Plaintiffs’/Intervenors’ claims are barred and/or preempted, in whole or in part, by the federal legislation and regulations governing tires, including the Motor Vehicle Safety Act and the regulations promulgated by the National Highway Traffic Safety Administration. Cooper further answers that the subject tire was reasonably fit, suitable and safe for its intended purpose. Cooper asserts the provisions of Sections 82.005 and 82.008 of the Texas Civil Practice & Remedies Code as they relate and/or are applicable to Plaintiffs’/Intervenors’ design, manufacturing and marketing defect allegations against Cooper, if any. Pleading further, alternatively, Cooper states that the tire made the basis of Plaintiffs’/Intervenors’ suit complied with all applicable safety standards. RAC . § 82.008(a) (Vernon 2003). For further answer, Cooper invokes its legal right to a reduction of any dollar verdict which may be rendered in this cause by credit for payments made by Plaintiffs/Intervenors or other persons or entities, or by percentage reductions to which Cooper would be entitled as a result of jury findings against Plaintiffs/Intervenors or parties other than Cooper. In this connection, Cooper reserves the right to submit issues against parties, including but not limited to Plaintiffs/Intervenors, who may be present in this case or absent from the case at the time the matter is passed to the jury for fact determinations. Cooper asserts the limitation on recovery of medical or healthcare expenses, as set forth in Section 41.0105 of the TEXAS IVIL RACTICE EMEDIES ODE, which provides that recovery of medical or health care expenses incurred be limited to the amount actually paid or incurred by or on behalf of the claimant. APPLICATION OF MEXICAN LAW For further answer, if necessary, Cooper alleges that Plaintiffs’/Intervenors’ claims are governed by the laws of the State of Jalisco, Republic of Mexico. RESERVATION OF RIGHTS Cooper reserves the right to amend this Answer as permitted by the Texas Rules of Civil Procedure. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant, Cooper Tire & Rubber Company, Inc., prays that Plaintiffs/Intervenors take nothing by their causes of action against Cooper, assess costs against Plaintiffs/Intervenors, and award Cooper all other relief, in law and in equity, to which Cooper is justly entitled. Respectfully submitted, JOHNSON, TRENT, WEST & TAYLOR, L.L.P. By: /s/ Michael A. Pita T. Christopher Trent Texas Bar No. 20209400 Raphael C. Taylor Texas Bar No. 00788514 Michael A. Pita State Bar No. 24034628 919 Milam, Suite 1700 Houston, Texas 77002 (713) 222-2323 — Telephone (713) 222-2226 — Facsimile ATTORNEYS FOR DEFENDANTS COOPER TIRE & RUBBER COMPANY CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument was forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure on the 23 day of January Larry W. Lawrence, Jr. Via ECF and Certified Mail/RRR AWRENCE IRM, P.C. 3112 Windsor Road, Suite A234 Austin, Texas /s/ Michael A. Pita Michael A. Pita