Preview
FILED
DALLAS COUNTY
10/21/2015 5:17:56 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-05222
CARL and SANDRA JOHNSON, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
§
DAYTON SUPERIOR CORP.; CMC STEEL §
FABRICATORS, INC. D/B/A CMC §
CONSTRUCTION SERVICES; and §
COMMERCIAL METALS COMPANY, §
§
Defendants. § 68TH JUDICIAL DISTRICT
DEFENDANT CMC’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT PURSUANT TO SECTION 82.003 OF THE TEXAS CIVIL PRACTICE &
REMEDIES CODE AND OBJECTION TO PLAINTIFFS’ SUMMARY
JUDGMENT EVIDENCE
COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and
Commercial Metals Company (“Defendants” or “CMC”) and files this Reply in Support of its
Motion for Summary Judgment Pursuant to Section 82.0003 of the Texas Civil Practice &
Remedies Code and Objections to Plaintiffs’ Summary Judgment Evidence, and in support
thereof respectfully shows as follows:
I. SUMMARY
Given Plaintiffs’ Response to CMC’s Motion, summary judgment is required as a matter
of law. Plaintiffs’ Response and the conclusory allegations presented in support of Plaintiffs’
Response are insufficient as a matter of law to preclude summary judgment on Plaintiffs’ claims.
The undisputed facts establish CMC did not manufacture the subject bracing and column form–
Defendant Dayton Superior Corporation did. Further, Plaintiffs have not met their burden of
presenting competent summary judgment evidence to establish that CMC falls within the seven
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 1
2125045v.1
categories of exceptions to non-liability in Section 82.003. TEX. CIV. PRAC. & REM. CODE §
82.003(a). Plaintiffs generally assert that CMC’s culpability as a nonmanufacturing seller is that
“it recommended and supplied the combination of products that when used together became
unreasonably dangerous”. See Plaintiffs’ Response, p. 5. However, Plaintiffs fail to present any
competent summary judgment evidence to establish the existence of a genuine issue of material
fact upon which to prove that CMC falls within the exceptions set forth in Section 82.003 (a)(1)-
(4). Instead, Plaintiffs make a series of conclusory allegations not supported by the evidence or
testimony in this matter. CMC is entitled to summary judgment on all of Plaintiff's’ causes of
action as a matter of law.
Additionally, CMC objects to Plaintiffs’ proffered evidence set forth as evidence in
Exhibit D of its Response as unauthenticated and incompetent summary judgment evidence.
Exhibit D is a set of photos which are not properly authenticated and are not competent summary
judgment evidence. CMC respectfully requests that the Court sustain its objections as set forth
herein and disregard Exhibit D of Plaintiffs’ Response.
II. ARGUMENTS AND AUTHORITIES
I. No Material Issue of Fact Exists as to Plaintiff’s Section 82.003 Claims
As set forth in CMC’s Motion, Chapter 82 of the Texas Civil Practice and Remedies
Code limits a seller’s liability unless the seller also qualifies as a manufacturer or may be sued in
lieu of a manufacturer. Manchester Tank & Equip. Co. v. Engineered Controls Intern., Inc., 311
S.W.3d 573, 575 (Tex. App.—Waco 2009, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE
§ § 82.001(4) & 82.003). Under Section 82.003 of the Texas Civil Practice and Remedies Code,
a seller that did not manufacture a product is not liable for harm caused to the claimant by that
product unless one of the seven exceptions applies. TEX. CIV. PRAC. & REM. CODE 82.003(a)(1)-
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 2
2125045v.1
(7). The plaintiff bears the burden of establishing a nonmanufacturing seller’s liability under one
of the seven exceptions. See id. Plaintiffs admit in their Response that CMC did not
manufacture the bracing and form at issue in this case and that CMC is a nonmanufacturing
seller. As such, Plaintiffs bear the burden of proving that CMC falls into one of the statutory
exceptions to the limitation of liability for nonmanufacturing sellers. Plaintiffs assert that CMC
falls into four of the exceptions set forth in 82.003(a) but Plaintiffs wholly fail to meet their
burden of presenting competent summary judgment evidence that establishes that CMC falls into
one of these statutory exceptions.
II. No Evidence CMC Participated in the Design of the Products
First, Plaintiffs allege that CMC is liable as a nonmanufacturing seller under Section
82.003(a)(1) of the Texas Civil Practice and Remedies Code, which provides that a seller may be
liable for harm caused by defective product if the seller “participated in the design of the
product.” TEX. CIV. PRAC. & REM. CODE 82.003(a)(1)-(7). However, Plaintiffs set forth only
conclusory allegations insufficient to withstand summary judgment. There is no evidence that
CMC participated in the design of the T-14 B5 wall brace or the 24 x 24 adjustable steel column
form involved in the accident, and Plaintiffs cannot satisfy their burden of establishing CMC’s
liability as a nonmanufacturing seller. Instead, the evidence conclusively establishes that CMC
did not participate in the design of the product. At most, CMC supplied requested products to
Hensel Phelps, Plaintiff’s employer, which is not sufficiently direct or substantial participation in
the design process to give rise to liability under Section 82.003(a)(1).
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 3
2125045v.1
A. Liability under Section 82.003(a)(1) Requires Significant and Intentional
Participation in the Design of the Product
Chapter 82 of the Civil Practice and Remedies Code was added by the Texas Legislature
for the purpose of protecting innocent sellers from products liability suits unless they had
“significantly and intentionally” participated in the design or production of the product.
Manchester Tank & Equip. Co. v. Engineered Controls Intern., Inc., 311 S.W.3d 573, 575 (Tex.
App.—Waco 2009, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § § 82.001(4) & 82.003).
Nonmanufacturing sellers are protected from liability because the manufacturers, not the sellers,
are usually in a better position to recognize and remedy product defects. See Mix v. Target Corp.,
759 F. Supp. 2d 876, 879 (W.D. Tex. 2010).
Attenuated or indirect involvement in the design process is insufficient to impose liability
on a nonmanufacturing seller. Rubin v. Daimlerchrysler Corp., CIV.A. H044021, 2005 WL
1214605, *7 (S.D. Tex. May 20, 2005). Even the actual design of a product does not give rise to
liability if the designer’s work is not directly and substantially related to the production of the
ultimate product. Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 611 (Tex. 1996)
(the mere introduction of an intangible design concept into an industry does not give rise to
liability for design defect if the product is ultimately manufactured by another party). In this
case it is clear that CMC did not participate in any design work related to the production of the
products at issue.
Similarly, Texas case law holds that the mere selection of options made available to the
seller by the manufacturer does not rise to the level of design. In Allen v. W.A. Virnau & Sons,
Inc., the seller of a defective tractor opted out of available and standard safety equipment,
including seatbelts and a rollover protection system when ordering the product from the
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 4
2125045v.1
manufacturer. 28 S.W.3d 226, 229 (Tex. App.—Beaumont 2000, pet. denied). The seller was
sued under a products liability theory for damages that could have been avoided if the standard
safety equipment had been included on the tractor. See id. The court held, however, that the
seller could not be liable for the design defect as a manufacturer or a designer of the tractor
because the selection of available features for a product is not participation in design. See id. at
233.
B. CMC is entitled to Summary Judgment on Plaintiffs’ Claim that CMC
Participated in the Design of the Product
Plaintiff claims that CMC is liable as a nonmanufacturing seller for participating in the
design of bracing and form because CMC allegedly “recommended and supplied the T14, B5 tilt
wall brace with the 24 x 24 adjustable steel column forms”. See Plaintiffs’ Response, p. 6.
Under the applicable definitions of design, however, there is no evidence of direct and
substantial participation in the design process. Rather, the evidence shows at most that CMC
may have supplied the products at issue upon request of Plaintiff’s employer, Hensel Phelps.
Under Rubin v. Daimlerchrysler Corp., and Allen v. W.A. Virnau & Sons, Inc., CMC’s supplying
of products does not rise to participation in design as a matter of law. As such, CMC does not
fall within this first category of exception under Section 82.003(a).
III. No Evidence CMC Altered or Modified the Product
Plaintiffs have not presented any evidence that CMC “altered or modified the product and
the claimant's harm resulted from that alteration or modification.” TEX. CIV. PRAC. & REM.
CODE § 82.003(a)(2). Plaintiffs cite to no evidence at all for the contention that CMC falls into
this exception. Because CMC does not design or manufacture the bracing or the column form, it
certainly does perform any alterations, modifications, or changes to the products.. Only an
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 5
2125045v.1
alteration or modification of the products at issue would be relevant under this category, as it
requires that an alteration or modification result in the claimant’s harm. Plaintiffs have produced
no competent summary judgment to show the existence of a genuine issue of material fact on this
issue. Thus, Plaintiffs cannot show that CMC falls within this second category of exception
under Section 82.003(a).
IV. No Evidence CMC Installed the Product on Another Product
Plaintiffs fail to present any evidence that CMC “installed the product, or had the product
installed, on another product and the claimant's harm resulted from the product's installation onto
the assembled product.” TEX. CIV. PRAC. & REM. CODE § 82.003(a)(3). Again, Plaintiffs cite to
no evidence at all for the contention that CMC falls into this exception. Further, there is no
allegation that CMC installed the bracing or column form onto another product, and that the
installation onto the assembled product caused Plaintiffs’ harm. “To determine whether a
pleading includes a particular claim, we examine the pleading from the perspective of the person
against whom the pleading is made.” Benavides v. Cushman, Inc., 189 S.W.3d 875, 881 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (citing Wilson v. Bloys, 169 S.W.3d 364, 369 (Tex.
App.—Austin 2005, pet. denied)). Examining Plaintiffs’ live pleading – their Fourth Amended
Petition – from CMC’s perspective, there is no allegation that CMC installed a product on
another product. Thus, it is indisputable that CMC does not fall within this category of exception
under Section 82.003(a).
V. No Evidence CMC Exercised Substantial Control Over the Content of a Warning or
Instruction that Accompanied the Product or Plaintiffs’ Harm Resulted from the
Inadequacy of that Warning or Instruction
Plaintiffs fail to create a fact issue that CMC “(A) exercised substantial control over the
content of a warning or instruction that accompanied the product; (B) the warning or instruction
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 6
2125045v.1
was inadequate; and (C) the claimant’s harm resulted from the inadequacy of the warning or
instruction.” TEX. CIV. PRAC. & REM. CODE § 82.003(a)(4).
Plaintiffs fail to demonstrate the existence of a genuine issue of material fact that CMC
provided inadequate warnings or instructions which caused Plaintiffs’ damages. “Generally, a
product supplier must warn expected users of foreseeable risks that make the product
unreasonably dangerous, but a supplier need not warn of risks that are common knowledge, and
when the product is supplied through an intermediary, a supplier may rely on the intermediary to
warn the actual product users.” Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 172
(Tex. 2004); see also Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986) (“The
issue in every case is whether the original manufacturer has a reasonable assurance that its
warning will reach those endangered by the use of its product.”) Here, the products at issue did
not contain manufacturer’s warnings. Plaintiffs cite to no evidence to establish the existence of a
genuine issue of material fact as to the adequacy of the warnings or instructions concerning the
bracing and column form. Here, there is no basis for Plaintiffs to argue that CMC must have
foreseen the need for a warning. Thus, Plaintiffs cannot establish the second element of this
exception. Consequently, it is indisputable that CMC does not fall within this category of
exception under Section 82.003(a).
III. CONCLUSION
WHEREFORE, CMC asks this Court to sustain their objections to Plaintiffs’ summary
judgment evidence, grant summary judgment in CMC’s favor and render a final judgment
granting CMC the relief requested in this Motion, and grant CMC all other such relief as to
which it may be justly entitled.
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 7
2125045v.1
Respectfully Submitted,
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
/s/Allison J. Maynard
Lee L. Cameron, Jr.
State Bar No. 03675380
Allison J. Maynard
State Bar No. 24055923
Bank of America Plaza
901 Main Street, Suite 4800
Dallas, Texas 75202-3758
Telephone (214) 698-8000
Facsimile (214) 698-1101
Lee.Cameron@wilsonelser.com
Allison.Maynard@wilsonelser.com
ATTORNEYS FOR DEFENDANTS CMC STEEL
FABRICATORS, INC. D/B/A CMC
CONSTRUCTION SERVICES AND
COMMERCIAL METALS COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
served via electronic service in accordance with the Texas Rules of Civil Procedure on this 21st
day of October, 2015:
/s/Allison J. Maynard
Allison J. Maynard
REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT
AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 8
2125045v.1
Preview
FILED DALLAS COUNTY 10/21/2015 5:17:56 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-13-05222 CARL and SANDRA JOHNSON, § IN THE DISTRICT COURT OF § Plaintiffs, § § vs. § DALLAS COUNTY, TEXAS § § DAYTON SUPERIOR CORP.; CMC STEEL § FABRICATORS, INC. D/B/A CMC § CONSTRUCTION SERVICES; and § COMMERCIAL METALS COMPANY, § § Defendants. § 68TH JUDICIAL DISTRICT DEFENDANT CMC’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT PURSUANT TO SECTION 82.003 OF THE TEXAS CIVIL PRACTICE & REMEDIES CODE AND OBJECTION TO PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE COMES NOW CMC Steel Fabricators, Inc. d/b/a CMC Construction Services, and Commercial Metals Company (“Defendants” or “CMC”) and files this Reply in Support of its Motion for Summary Judgment Pursuant to Section 82.0003 of the Texas Civil Practice & Remedies Code and Objections to Plaintiffs’ Summary Judgment Evidence, and in support thereof respectfully shows as follows: I. SUMMARY Given Plaintiffs’ Response to CMC’s Motion, summary judgment is required as a matter of law. Plaintiffs’ Response and the conclusory allegations presented in support of Plaintiffs’ Response are insufficient as a matter of law to preclude summary judgment on Plaintiffs’ claims. The undisputed facts establish CMC did not manufacture the subject bracing and column form– Defendant Dayton Superior Corporation did. Further, Plaintiffs have not met their burden of presenting competent summary judgment evidence to establish that CMC falls within the seven REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 1 2125045v.1 categories of exceptions to non-liability in Section 82.003. TEX. CIV. PRAC. & REM. CODE § 82.003(a). Plaintiffs generally assert that CMC’s culpability as a nonmanufacturing seller is that “it recommended and supplied the combination of products that when used together became unreasonably dangerous”. See Plaintiffs’ Response, p. 5. However, Plaintiffs fail to present any competent summary judgment evidence to establish the existence of a genuine issue of material fact upon which to prove that CMC falls within the exceptions set forth in Section 82.003 (a)(1)- (4). Instead, Plaintiffs make a series of conclusory allegations not supported by the evidence or testimony in this matter. CMC is entitled to summary judgment on all of Plaintiff's’ causes of action as a matter of law. Additionally, CMC objects to Plaintiffs’ proffered evidence set forth as evidence in Exhibit D of its Response as unauthenticated and incompetent summary judgment evidence. Exhibit D is a set of photos which are not properly authenticated and are not competent summary judgment evidence. CMC respectfully requests that the Court sustain its objections as set forth herein and disregard Exhibit D of Plaintiffs’ Response. II. ARGUMENTS AND AUTHORITIES I. No Material Issue of Fact Exists as to Plaintiff’s Section 82.003 Claims As set forth in CMC’s Motion, Chapter 82 of the Texas Civil Practice and Remedies Code limits a seller’s liability unless the seller also qualifies as a manufacturer or may be sued in lieu of a manufacturer. Manchester Tank & Equip. Co. v. Engineered Controls Intern., Inc., 311 S.W.3d 573, 575 (Tex. App.—Waco 2009, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § § 82.001(4) & 82.003). Under Section 82.003 of the Texas Civil Practice and Remedies Code, a seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless one of the seven exceptions applies. TEX. CIV. PRAC. & REM. CODE 82.003(a)(1)- REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 2 2125045v.1 (7). The plaintiff bears the burden of establishing a nonmanufacturing seller’s liability under one of the seven exceptions. See id. Plaintiffs admit in their Response that CMC did not manufacture the bracing and form at issue in this case and that CMC is a nonmanufacturing seller. As such, Plaintiffs bear the burden of proving that CMC falls into one of the statutory exceptions to the limitation of liability for nonmanufacturing sellers. Plaintiffs assert that CMC falls into four of the exceptions set forth in 82.003(a) but Plaintiffs wholly fail to meet their burden of presenting competent summary judgment evidence that establishes that CMC falls into one of these statutory exceptions. II. No Evidence CMC Participated in the Design of the Products First, Plaintiffs allege that CMC is liable as a nonmanufacturing seller under Section 82.003(a)(1) of the Texas Civil Practice and Remedies Code, which provides that a seller may be liable for harm caused by defective product if the seller “participated in the design of the product.” TEX. CIV. PRAC. & REM. CODE 82.003(a)(1)-(7). However, Plaintiffs set forth only conclusory allegations insufficient to withstand summary judgment. There is no evidence that CMC participated in the design of the T-14 B5 wall brace or the 24 x 24 adjustable steel column form involved in the accident, and Plaintiffs cannot satisfy their burden of establishing CMC’s liability as a nonmanufacturing seller. Instead, the evidence conclusively establishes that CMC did not participate in the design of the product. At most, CMC supplied requested products to Hensel Phelps, Plaintiff’s employer, which is not sufficiently direct or substantial participation in the design process to give rise to liability under Section 82.003(a)(1). REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 3 2125045v.1 A. Liability under Section 82.003(a)(1) Requires Significant and Intentional Participation in the Design of the Product Chapter 82 of the Civil Practice and Remedies Code was added by the Texas Legislature for the purpose of protecting innocent sellers from products liability suits unless they had “significantly and intentionally” participated in the design or production of the product. Manchester Tank & Equip. Co. v. Engineered Controls Intern., Inc., 311 S.W.3d 573, 575 (Tex. App.—Waco 2009, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § § 82.001(4) & 82.003). Nonmanufacturing sellers are protected from liability because the manufacturers, not the sellers, are usually in a better position to recognize and remedy product defects. See Mix v. Target Corp., 759 F. Supp. 2d 876, 879 (W.D. Tex. 2010). Attenuated or indirect involvement in the design process is insufficient to impose liability on a nonmanufacturing seller. Rubin v. Daimlerchrysler Corp., CIV.A. H044021, 2005 WL 1214605, *7 (S.D. Tex. May 20, 2005). Even the actual design of a product does not give rise to liability if the designer’s work is not directly and substantially related to the production of the ultimate product. Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 611 (Tex. 1996) (the mere introduction of an intangible design concept into an industry does not give rise to liability for design defect if the product is ultimately manufactured by another party). In this case it is clear that CMC did not participate in any design work related to the production of the products at issue. Similarly, Texas case law holds that the mere selection of options made available to the seller by the manufacturer does not rise to the level of design. In Allen v. W.A. Virnau & Sons, Inc., the seller of a defective tractor opted out of available and standard safety equipment, including seatbelts and a rollover protection system when ordering the product from the REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 4 2125045v.1 manufacturer. 28 S.W.3d 226, 229 (Tex. App.—Beaumont 2000, pet. denied). The seller was sued under a products liability theory for damages that could have been avoided if the standard safety equipment had been included on the tractor. See id. The court held, however, that the seller could not be liable for the design defect as a manufacturer or a designer of the tractor because the selection of available features for a product is not participation in design. See id. at 233. B. CMC is entitled to Summary Judgment on Plaintiffs’ Claim that CMC Participated in the Design of the Product Plaintiff claims that CMC is liable as a nonmanufacturing seller for participating in the design of bracing and form because CMC allegedly “recommended and supplied the T14, B5 tilt wall brace with the 24 x 24 adjustable steel column forms”. See Plaintiffs’ Response, p. 6. Under the applicable definitions of design, however, there is no evidence of direct and substantial participation in the design process. Rather, the evidence shows at most that CMC may have supplied the products at issue upon request of Plaintiff’s employer, Hensel Phelps. Under Rubin v. Daimlerchrysler Corp., and Allen v. W.A. Virnau & Sons, Inc., CMC’s supplying of products does not rise to participation in design as a matter of law. As such, CMC does not fall within this first category of exception under Section 82.003(a). III. No Evidence CMC Altered or Modified the Product Plaintiffs have not presented any evidence that CMC “altered or modified the product and the claimant's harm resulted from that alteration or modification.” TEX. CIV. PRAC. & REM. CODE § 82.003(a)(2). Plaintiffs cite to no evidence at all for the contention that CMC falls into this exception. Because CMC does not design or manufacture the bracing or the column form, it certainly does perform any alterations, modifications, or changes to the products.. Only an REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 5 2125045v.1 alteration or modification of the products at issue would be relevant under this category, as it requires that an alteration or modification result in the claimant’s harm. Plaintiffs have produced no competent summary judgment to show the existence of a genuine issue of material fact on this issue. Thus, Plaintiffs cannot show that CMC falls within this second category of exception under Section 82.003(a). IV. No Evidence CMC Installed the Product on Another Product Plaintiffs fail to present any evidence that CMC “installed the product, or had the product installed, on another product and the claimant's harm resulted from the product's installation onto the assembled product.” TEX. CIV. PRAC. & REM. CODE § 82.003(a)(3). Again, Plaintiffs cite to no evidence at all for the contention that CMC falls into this exception. Further, there is no allegation that CMC installed the bracing or column form onto another product, and that the installation onto the assembled product caused Plaintiffs’ harm. “To determine whether a pleading includes a particular claim, we examine the pleading from the perspective of the person against whom the pleading is made.” Benavides v. Cushman, Inc., 189 S.W.3d 875, 881 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Wilson v. Bloys, 169 S.W.3d 364, 369 (Tex. App.—Austin 2005, pet. denied)). Examining Plaintiffs’ live pleading – their Fourth Amended Petition – from CMC’s perspective, there is no allegation that CMC installed a product on another product. Thus, it is indisputable that CMC does not fall within this category of exception under Section 82.003(a). V. No Evidence CMC Exercised Substantial Control Over the Content of a Warning or Instruction that Accompanied the Product or Plaintiffs’ Harm Resulted from the Inadequacy of that Warning or Instruction Plaintiffs fail to create a fact issue that CMC “(A) exercised substantial control over the content of a warning or instruction that accompanied the product; (B) the warning or instruction REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 6 2125045v.1 was inadequate; and (C) the claimant’s harm resulted from the inadequacy of the warning or instruction.” TEX. CIV. PRAC. & REM. CODE § 82.003(a)(4). Plaintiffs fail to demonstrate the existence of a genuine issue of material fact that CMC provided inadequate warnings or instructions which caused Plaintiffs’ damages. “Generally, a product supplier must warn expected users of foreseeable risks that make the product unreasonably dangerous, but a supplier need not warn of risks that are common knowledge, and when the product is supplied through an intermediary, a supplier may rely on the intermediary to warn the actual product users.” Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 172 (Tex. 2004); see also Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986) (“The issue in every case is whether the original manufacturer has a reasonable assurance that its warning will reach those endangered by the use of its product.”) Here, the products at issue did not contain manufacturer’s warnings. Plaintiffs cite to no evidence to establish the existence of a genuine issue of material fact as to the adequacy of the warnings or instructions concerning the bracing and column form. Here, there is no basis for Plaintiffs to argue that CMC must have foreseen the need for a warning. Thus, Plaintiffs cannot establish the second element of this exception. Consequently, it is indisputable that CMC does not fall within this category of exception under Section 82.003(a). III. CONCLUSION WHEREFORE, CMC asks this Court to sustain their objections to Plaintiffs’ summary judgment evidence, grant summary judgment in CMC’s favor and render a final judgment granting CMC the relief requested in this Motion, and grant CMC all other such relief as to which it may be justly entitled. REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 7 2125045v.1 Respectfully Submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP /s/Allison J. Maynard Lee L. Cameron, Jr. State Bar No. 03675380 Allison J. Maynard State Bar No. 24055923 Bank of America Plaza 901 Main Street, Suite 4800 Dallas, Texas 75202-3758 Telephone (214) 698-8000 Facsimile (214) 698-1101 Lee.Cameron@wilsonelser.com Allison.Maynard@wilsonelser.com ATTORNEYS FOR DEFENDANTS CMC STEEL FABRICATORS, INC. D/B/A CMC CONSTRUCTION SERVICES AND COMMERCIAL METALS COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served via electronic service in accordance with the Texas Rules of Civil Procedure on this 21st day of October, 2015: /s/Allison J. Maynard Allison J. Maynard REPLY IN SUPPORT OF CMC’S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE PAGE 8 2125045v.1