Full opinion text
OPINION DAVID WELLINGTON CHEW, Justice. This manufacturing defect case arises from a tragic single-vehicle accident, which resulted in the deaths of four occupants and serious injuries to three other occupants. Appellees, the surviving driver and occupants and estate administrators of the decedents (collectively, “the Plaintiffs”) sued Appellant Cooper Tire & Rubber Company (“Cooper Tire”), asserting that a tire on the vehicle failed due to a manufacturing defect that caused the tire’s belt separation. The jury found in favor of the Plaintiffs and the trial court rendered judgment on the verdict against Cooper Tire in the total amount of $11,508,080. On appeal, Cooper Tire brings ten issues, with various sub-issues, for appellate review, including legal and factual sufficiency challenges to the jury’s findings, the admissibility of certain evidence and expert testimony, jury charge error, improper jury argument, and jury misconduct. We affirm the trial court’s judgment. BACKGROUND On June 29, 1997, a Sunday afternoon, Oscar Mendez, Sr. and his wife were traveling with Manuel Duran and his relatives on a trip to Albuquerque, New Mexico in a Mazda minivan. The minivan belonged to Celia Salas, one of the passengers. At a rest stop in Truth or Consequences, New Mexico, Mr. Mendez took over as the driver. When they were approximately twenty miles from Albuquerque, the tread separated on the minivan’s left rear tire, a Sigma Grand Sport Radial Tire manufactured by Cooper Tire. According to witnesses, the minivan was driving normally when all of a sudden they observed a dirt clod (or what appeared to be dirt) fall from the left rear tire. Within seconds, the minivan crossed into the right-hand lane and started to drive onto the shoulder of the road. It appeared to witnesses as if the driver was trying to bring the minivan back onto the road when it started to roll over. Six of the seven passengers in the minivan were ejected. One victim died at the scene and three other victims were pronounced deceased upon arrival to the hospital. In this lawsuit, the Plaintiffs claimed the failed tire had a manufacturing defect that caused the accident and the resulting deaths and injuries. Cooper Tire denied there was a defect in the tire and asserted a negligence claim against the driver, Mr. Mendez. The jury found that there was a manufacturing defect in the tire at the time it left Cooper Tire’s possession and that it was a producing cause of the occupants’ injuries. The jury also found that Mr. Mendez was not negligent in causing the accident and that there was clear and convincing evidence that Melissa Snyder was the biological daughter of decedent Manuel Duran. MANUFACTURING DEFECT Jury Charge: Omission of “Flaw” Element In Issues Two and Three, Cooper Tire contends the Plaintiffs failed to obtain a jury finding on the “flaw” element of their manufacturing defect claim and that the trial court’s refusal to incorporate the “flaw” element is harmful error. To recover in strict liability for a manufacturing defect, the plaintiff must show that the finished product was defective at the time the product left the seller and that the defect was a producing cause of the plaintiffs injuries. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 844 (Tex.2000); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997), quoting Restatement (Second) of Torts § 402A (1965). A product has a manufacturing defect if its construction or quality deviates from the specifications or planned output in a manner that renders it unreasonably dangerous. Torrington, 46 S.W.3d at 844; Grinnell, 951 S.W.2d at 434. The trial court submitted the following question on the Plaintiffs liability theory: QUESTION 1 Was there a manufacturing defect in the tire at the time it left the possession of Cooper Tire & Rubber Company that was a producing cause of the injuries to Maria Luisa Mendez, Adela Duran, Manuel Duran, and Oscar Mendez, Sr.? A ‘defect’ means a condition of the product that renders it unreasonably dangerous. An ‘unreasonably dangerous’ product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics. Cooper Tire objected to the jury question on the basis that it lacked a definition of manufacturing defect. Cooper Tire also filed with the court its requested instruction to accompany Question l. On appeal, Cooper Tire argues that the Plaintiffs failed to meet their burden in proving and obtaining a jury finding on each element of their cause of action. In response, the Plaintiffs assert that there is no such thing as a “flaw element” separate from the manufacturing defect itself. We agree. Cooper Tire cites to no authorities to support its claim that the Plaintiffs must prove a “flaw” element beyond obtaining a finding of a defect. Under Torrington and Grinnell, a plaintiff shows that a product has a manufacturing defect through evidence that the finished product deviates from the specifications or planned output in a manner that renders it unreasonably dangerous. See Torrington, 46 S.W.3d at 844; Grinnell, 951 S.W.2d at 434. We observe that Cooper Tire’s requested instruction is similar to a definition of manufacturing defect that appears in a footnote in USX Corp. v. Salinas, 818 S.W.2d 473, 482 n. 8 (Tex.App.-San Antonio 1991, writ denied). The Salinas case involved a marketing defect claim, but the court in dicta cited E. Carstarphen, Product Defects, 2 Texas Torts and Remedies § 41.01[2] (1991), for the proposition that “[a] manufacturing defect exists when a product does not conform to the design standards and blueprints of the manufacturer and the flaw makes the product more dangerous and therefore unfit for its intended or reasonably foreseeable uses.” Salinas, 818 S.W.2d at 482 n. 8. The Salinas Court apparently provided a more narrow definition of manufacturing defect than is recognized under, leading Texas case law. We do not find the Salinas definition controlling in this case. We conclude no “flaw” element was omitted in the jury question nor did the trial court err in refusing to incorporate Cooper Tire’s “flaw” instruction. Issues Two and Three are overruled. Sufficiency of Evidence on Manufacturing Defect In Issue One, Cooper Tire challenges the legal and factual sufficiency of the evidence to support the jury’s finding of a manufacturing defect in the tire in question at the time it left Cooper Tire’s possession. Within this issue, Cooper Tire also contends the trial court erred in admitting expert testimony from three of the Plaintiffs’ witnesses and erred in admitting a technical report from RAPRA Technology, Ltd., and testimony from Richard Angel!, a former Cooper Tire employee. Standards of Review In reviewing a legal sufficiency challenge where the complaining party on appeal did not bear the burden of proof at trial, we analyze the issue as a “no-evidence” challenge. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In our review, we consider the evidence in a light that tends to support the jury’s finding and disregard all evidence and inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002). If there is more than a scintilla of evidence to support the finding, the legal insufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). We will sustain a no-evidence challenge when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence 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 mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). The evidence is no more than a scintilla “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence.... ” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). In reviewing a challenge to the factual sufficiency of the evidence,' we consider all the evidence both supporting and contradicting the jury’s finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. It is not within the province of the reviewing court to interfere with the jury’s resolution of conflicts in the evidence, or to pass on the weight or credibility of the witnesses’ testimony. Campbell v. Salazar, 960 S.W.2d 719, 724 (Tex.App.-El Paso 1997, pet. denied). Where there is conflicting evidence, the jury’s verdict on the matter is generally regarded as conclusive. Id. We review evidentiary rulings under the abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Unless the trial court’s erroneous evidentiary ruling probably caused the rendition of an improper judgment, we will not reverse the ruling. See Tex.R.App. P.44.1; Owens-Corning, 972 S.W.2d at 43. Expert Witness Testimony We first address Cooper Tire’s complaints concerning the qualifications and reliability of Plaintiffs’ three expert witnesses: Richard “Rex” Grogan, Dr. Alan Milner, and Jon Crate. Cooper Tires argues that the trial court erred in admitting this expert testimony, and therefore, this Court cannot consider that testimony in conducting our evidentiary review. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Texas Rule of Evidence 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R.Evid.702. The party offering the expert’s testimony bears the burden to prove that the witness is qualified under Rule 702. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). Whether a witness is qualified as an expert is within the trial court’s discretion. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). Rule 702 also requires that an expert’s testimony be relevant and based on a reliable foundation. See Robinson, 923 S.W.2d at 556. In Robinson, the Texas Supreme Court identified six non-exclusive factors to consider in determining whether scientific evidence is reliable, and thus, admissible under Rule 702. Id. at 557. These Robinson factors are: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses which have been made of the theory or technique. Robinson, 923 S.W.2d at 557. The Robinson factors, however, do not always apply to experts who testify on the basis of specialized knowledge. See Gammill, 972 S.W.2d at 726. “Experience alone may provide a sufficient basis for an expert’s testimony in some cases, but it cannot do so in every case.” Id. While expert testimony must still be proven reliable pursuant to Rule 702, in such cases, the court in conducting its gatekeeper analysis “may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. Nevertheless, Rule 702 demands that the court “evaluate the methods, analysis, and principles relied upon in reaching the opinion ... [in order to] ensure that the opinion comports with applicable professional standards outside the courtroom and that it ‘will have a reliable basis in the knowledge and experience of [the] discipline.’ ” Gammill, 972 S.W.2d at 725-26; see also TEX.R.EVID. 702. The trial court’s duty is not to determine whether the expert’s conclusions are correct, but rather whether the analysis used to reach them is reliable. Gammill, 972 S.W.2d at 728. Richard “Rex” Grogan’s Testimony Richard “Rex” Grogan is a tire failure analyst. In 1947, Mr. Grogan joined Dunlop Tire Company in Birmingham, England and worked in its technical department, the compounds laboratory. Mr. Grogan became a compounder and was engaged in developing new rubber compounds for all aspects of tires and inner tubes. Around 1960, Mr. Grogan was transferred to the tire examination laboratory where he later served as Acting Manager. During that time, Mr. Grogan and the manager established the x-ray department, which became their responsibility. Mr. Grogan then served as Deputy Manager in the tire textile laboratory for about a year before being appointed in 1964 to take over the technical service section, a department of five tire examiners whose function was to examine returned tires and alert the technical department about possible future service defects. In this position, Mr. Grogan represented the company in legal matters as an expert 'witness and organized and ran training courses for police and forensic scientists on behalf of the British government. Around 1967, Mr. Grogan again took over management of Dunlop’s tire examination laboratory and x-ray department, but retained his position in the technical service section. Mr.Grogan left Dunlop in 1980 and became an independent pneumatic tire consultant. In 1982, Mr. Grogan developed a course in forensic tire examination for the Institute of Police Technology Management in Jacksonville, Florida, in conjunction with North Florida University and joined their adjunct faculty. In 1987, he published a book entitled, “An Investigator’s Guide to Tire Failures,” which he revised and expanded in 1999. Mr. Gro-gan has also written thirty to forty technical articles on tire failure analysis in publications such as the Journal of the Forensic Science Society and the Institute of Accident Investigator’s Journal. Between 1984 and 1987, Mr. Grogan wrote a monthly column in Tires and Accessories, one of the tire trade journals. Mr. Grogan’s qualifications included specialized knowledge and extensive experience in tire failure analysis and tire examination. Based on the evidence before the trial court, the Plaintiffs clearly met their burden in showing that Mr. Grogan was qualified to be an expert on the specific issues in this case. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)(trial court’s role is to ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion). Therefore, the trial court reasonably concluded that Mr. Grogan possessed the requisite knowledge, experience, and training to testify in this case. Cooper Tire also argues that Mr. Grogan’s testimony should have been excluded because his opinions lacked a reliable scientific or factual basis. At trial, Mr. Grogan commented on a videotape produced by Cooper Tire called, “Design for Quality,” to explain to the jury how a tire is made. Mr. Grogan explained that a tire is constructed in layers. A tire is built out of unvulcanized rubber components. During the process, sheets of brass-plated steel cords and the rubber form the belt material. Mr. Grogan explained that brass is the adhesive because the rubber will not adhere to steel. In the manufacturing process, Cooper Tire used canvas as protective material to prevent the rubber sheets from sticking to each other. Once the tire goes through the vulcanization process, or the cure, the rubber layers bond and the various components lose their separate identity. Mr. Grogan testified that his method of conducting a tire examination begins with a visual and tactile examination of the tire. Over the years, Mr. Grogan has produced a data sheet with various sequential questions he uses in his investigation. For example, Mr. Grogan’s queries concern information such as the type of tire, "its condition, features, the manufacturer, when it was produced and where, and the tread pattern. Mr. Grogan also inspects the separated components and the wheel and sidewall for any damage or bead grooving — which is damage to the rubber caused by movement where the tire and wheel meet. He then visually inspects the inside of the tire. At this stage, Mr. Gro-gan checks for damage, evidence of repairs, signs of stress, and indicators that the tire was run underinflated or deflated. Mr. Grogan also inspects the condition of the valve. After forming a preliminary opinion, Mr. Grogan inspects the tire a second time several days later. Mr. Gro-gan employs directional lighting in conducting his examination, takes many photographs, and frequently x-rays the tire to view the steel inside the rubber. At times, Mr. Grogan utilizes various specialists, like an analytical chemist, once he has formed his preliminary opinion. After examining the tire in this case, Mr. Grogan concluded that the tire failed by tread and belt separation due to contamination of the skim stock. In his inspection, Mr. Grogan found liner marks or line impressions, which he opined were the cross-woven treads of the canvas used to protect the rubber components from sticking to each other. According to Mr. Gro-gan, the cross-woven liner marks, could be nothing else but imprints from the canvas. In reaching his conclusion about the cause of the tread belt separation, Mr. Grogan considered a number of factors. First, he observed looseness at the edge of the belt, that is, all along one edge the steel is loose and is no longer bonded to the tread and separated. Actual steel cord was exposed and the edges were coming out of place with more and more extensive separation observable towards the failed area in which a large chunk was loose. Second, he observed liner marking, which occurs between the interfaces or separate components, indicating poor adhesion between the components. Mi'. Grogan concluded that the interface was able to separate, which he opined should never occur. Mr. Grogan explained the significance of the liner marks in the underside of the tire tread. During vulcanization, the separate components of a tire fuse to form one structure. All the separate components should lose their identity, but if interfaces are observable, it indicates that the tire has separated along the lines where the components went into the mold, which should never occur if the material is in proper condition to make a tire. Mr. Gro-gan further stated that observing liner marks means the tire came unglued and never properly fused. Mr. Grogan opined that if a manufacturer allows that to happen, it has produced an area of weakness in the tire, which can cause the tire to separate, and is a very dangerous condition. Mr. Grogan also believed that from a manufacturing standpoint, a contaminant was the source of the problem in this particular tire. His opinion was based on the fact that the tire had come apart at an interface between two components, indicating that something had interfered with the stickiness of the two surfaces. Mr. Grogan could not identify the contaminant visually, so he sent the tire to RA-PRA Technology, a firm of rubber specialists in England, which tested areas of the tire per his instructions. Mr. Grogan stated that RAPRA has a worldwide reputation and is widely used, that he knew they had absolutely the highest competence, and that RAPRA produced this kind of information for experts such as himself. RAPRA’s technical report identified a hydrocarbon wax in the tested areas. Mr. Grogan knew from his experience as a compounder that there should be no waxes in the compounding of the rubbers for the stock in making the ply layers. Mr. Grogan explained that compounds that cover steel wires are commonly called skim stock, as they skim over the top of the wires. He stated that this is the most sensitive compound in the tire because it has to bond to steel and bond to itself and is where all the road stresses are first encountered. According to Mr. Grogan, adhesion is absolutely critical in that compound area and softeners, oil, or waxes are not put in there. Hydrocarbon waxes or oils, however, are appropriate for the sidewall or the tread in order to prevent deterioration or cracking caused by ozone in the air. Mr. Grogan explained that when he was a com-pounder he was familiar with microcrystal-line waxes and stated that such waxes move very little and can bleed through the compound and restore the surface as protection. These waxes always move to an outside surface and do not migrate to the inside surface between the two belt plies because of internal pressure that prevents the wax from going in that direction. Based on his review of depositions and affidavits in this case, in particular statements by Jean Hoffman, Cooper’s chief chemist, and Richard Angelí, a former bias cut operator, Mr. Grogan formed an opinion that the belt-belt separation was a result of wax contamination in the factory. In conducting the tire examination, Mr. Grogan made an investigation which eliminated other causation for the tire failure, including impact damage or a nail hole. Mr. Grogan explained that nail puncture is a very common reason for a tire to fail. Using a microscope, Mr.Grogan had observed an imprint of the head of a nail hole in the rubber. In his opinion, the nail hole had no significance at all to the failure. He formed this opinion based on observing no signs of distress where the sidewall and rigid area underneath the tread, the thinnest part of a tire and where a tire collapses when it goes flat. He also observed that the tire was a tubeless tire, whose innerliner sealed the nail in the tire very effectively because of compression forces. Based on his examination, he determined that certain damage marks on the tread indicated that the nail came loose from the tread when it began to separate. In his experience, nails do not cause tread separations. Mr. Grogan also determined that the tire had not been run flat, soft, or under-inflated. He based his opinion on the following observations: (1) there was no removal of paint from inside of the tire, which starts to break away when there is a lot of flexing in the area where the tread and sidewall meet; (2) there were no signs of rubber wrinkling or chafing in that area, which would be caused by the cords beginning to pull through the rubber; (3) there was no sign of bead grooving, a line of quickly forming damage where the flange of the wheel contacts the tire and there is movement between the two, which indicated that the tire did not run flat or even soft; (4) measurements of tread depth indicated the tire tread was a little bit more than half worn, but was a perfectly usable tire in terms of tread depth; (5) there was no sign of polishing from the rim; (6) no markings to indicate that the user had run the tire at low pressures; (7) there were no broken cords, which would have indicated structural impact that weakened the tire; and (8) there was no rust on the tire and it had not been used beyond its legal limit. Mr. Grogan also ruled out overloading of the tire because he observed no sign of bead grooving whatsoever in the tire and no signs of stress inside. On appeal, Cooper Tire argues that Mr. Grogan’s opinions lacked a reliable scientific or factual basis. Specifically, Cooper Tire argues that his opinion on the role wax played in the belt separation had no scientific foundation because he did no testing to determine if wax on the surface of belt skim stock affected adhesion after vulcanization and did no testing to reveal the effect, if any, wax has on belt adhesion. Further, Cooper Tire asserts that Mr. Grogan’s opinions on liner marks have not been validated by testing and are entirely subjective. Cooper Tire claims Mr. Gro-gan failed to provide a scientific basis for eliminating the puncture as a cause of the separation. Cooper Tire also contends that the RAPRA report upon which Mr. Grogan based his opinion was inadmissible as was Mr. Angell’s testimony concerning wax and that neither support his opinions. After reviewing Mr. Grogan’s testimony, we find that his opinions were reliable pursuant to Rule 702. Mr. Grogan provided thorough information concerning his methodology and it is clear that his expertise rested on his many years of experience in tire examination for Dunlop and as an independent tire failure analyst. His preliminary opinion was based on his observations and analysis of the tire itself and he determined that the belt separation was caused by poor adhesion between the rubber component layers. Upon further investigation, Mr. Grogan had his conclusion confirmed by the RAPRA report, which identified the presence of wax in tested areas of the tire. Cooper Tire asserts that the RAPRA report was inadmissible hearsay and objected to its admission into evidence because it could not be authenticated and was hearsay. However, experts may testify on the basis of facts or data that need not be admissible in evidence if they are “of a type reasonably relied upon by experts in the particular field in forming opinion or inferences upon the subject. ...” See TEX.R.EVID. 703; see also TEX.R.EVID. 705 (expert may disclose underlying facts or data on direct examination). Here, Mr. Grogan testified that RA-PRA was a firm of rubber specialists and chemists who used sophisticated techniques, were highly competent, and widely used by experts. He relied on them technical report to confirm his opinion concerning lack of adhesion during manufacturing of the tire. Cooper Tire also asserts that Mr. Grogan’s opinions lack a factual basis because he relied on deposition testimony from Mr. Angelí, which should have been excluded. Mr. Angelí, a former Cooper Tire employee, testified that when he worked as a bias cutter at Cooper Tire, he used a substance that felt, looked, and acted like wax during the tire-making process. In his deposition testimony, Mr. An-gelí stated that excessive waxes were put on the metal splices of the bias cutters to prevent jams, but wax would appear on the bottom side of the cord plies. Mr. Angelí believed that the substance was paraffin-based wax. The waxes were used on the blade, on the foot, on the conveyor belts, on the rollers, and on the splicing table or the slide table. Mr. Angelí repeatedly referred to the substance as wax, but the following exchange suggests his testimony may have been inconsistent: Q. And when we are talking about wax, what we are really talking about is white-inside-of-a-Dixie-cup looking things, aren’t we? A. Yes, sir. Q. That were made out there in the cement house? A. Yes, sir. Q. Stearic acid? A. I have seen it all colors, yes sir. I guess it is stearic acid. I don’t know what stearic acid is. Q. Okay. You don’t know what it was exactly? A. No, sir. Q. It is just something that the — you were given to work with? A. Yes, sir. It looks — feels like wax, looks like wax, acts like wax, and they call it wax. Q. Who calls its wax? A. That’s the word the first time I was ever handed some. Mr. Grogan had also read deposition testimony by Ms. Hoffman. He recalled that she stated that waxes were applied to the making drum, the guillotine blade that cuts the belt material, and the guidance rollers. In his opinion, Mr. Angell’s testimony simply confirmed what Ms. Hoffman said about use of wax on the blade and the guidance rollers. On direct examination, Ms. Hoffman testified that the Cooper Tire plant receives stearic acid from a vendor, which is melted down and put into paper cups. She stated that in 1994, stearic acid, not wax, was used to lubricate the machines, but a lot of people in the plant called it wax. Ms. Hoffman also stated that wax would not have been used on the bias cutters because it is not a very good lubricant. Mr. Angelí and Ms. Hoffman offered conflicting testimony, which turned on witness credibility and evaluation of the weight of the evidence. We conclude the trial court did not err in admitting Mr. Angell’s testimony and note that Mr. Gro-gan did not rely solely on Mr. Angell’s testimony as the factual basis for his conclusions. Further, we conclude the trial court reasonably found Mr. Grogan’s testimony to have a reliable basis and overrule Cooper Tire’s challenge to this witness. Dr. Alan Milner’s Testimony Next, Cooper Tire argues that the trial court erred in admitting expert testimony from Dr. Alan Milner. Cooper Tire asserts that Dr. Milner was not qualified to testify about manufacturing defects in tires, the effect of punctures on tires, or tire failure and his opinions lacked a reliable, scientific, or factual basis. We disagree. Dr. Milner is a professional engineer who has specialized since 1974 in failure analysis and accident investigation involving metallurgical, mechanical, automotive, and combustion engineering. Dr. Milner was educated in the United Kingdom and received his bachelor’s degree in metallurgical engineering, which is now called material science, from the University of Sheffield. Metallurgical engineering includes the study of failure analysis and is concerned with the application of the principles of physics, mathematics, mechanical engineering, thermodynamics, and chemistry to the manufacture of metals into forms and products and the evaluation and testing of such products and structures. After receiving his bachelor’s degree, Dr. Milner was employed by a large aircraft manufacturing company in an apprenticeship in different areas of aircraft manufacturing. He then worked at General Electric Company in the nuclear power industry, where he conducted predictive failure analysis involving steel structures, pressure vessels, and structures used in nuclear energy and electric generating plants. At the same time, Dr. Milner attended the University of London and was awarded a master of science degree in engineering. In 1964, Dr. Milner received his Ph.D. in metallurgy and materials from the University of Manchester and was also a research associate during his studies there. The subject of his dissertation involved the bonding of materials and combining the properties of metals and metals in a single material that would have special properties. From 1964 to 1970, Dr. Milner worked for Minnesota Mining and Manufacturing Company (“3M Company”) on federal defense research contracts involving the fabrication of metals, troubleshooting, and failure analysis. In 1970, Dr. Mil-ner became an Associate Professor of Metallurgical Engineering at the University of Arizona. He started his engineering consulting business in 1974, which consists in product failure analysis. In particular, Dr. Milner conducts non-destructive testing, x-ray examination, and microscopy — techniques used in failure analysis to evaluate why products fail. Dr. Milner is a licensed professional engineer and is a member of various organizations, including the American Society for Metals, the Society of Automotive Engineers, and the Systems Safety Society. He is also a member of Wire Association International in connection with his work on steel cords that are used as structural materials in tires. Dr. Milner testified that he has been doing failure analysis on tires for over twenty-six years. He explained that tires represent composite materials, combinations of steel and other materials such as tire rubber, and involve technologies which are based in materials science. Dr. Milner stated that tire technology is based on metallurgy, the chemistry of metals and metal rubber systems. As a result, he has done a great deal of work on the failure of tire beads, steel wired structures that retain the tire on to the wheel, and tread separations in steel belt radial tires. Dr. Milner explained that steel belt structures, which are composites of steel wire, have metallurgical technologies involved in them such as electroplating and diffusion processes, which are used to bond them together. Cooper Tire’s complaints are primarily directed at Dr. Milner’s lack of a formal education in tire design or manufacture and his lack of real world experience with building a tire or performing tire testing for a federal agency. Cooper Tire also asserts that Dr. Milner’s research work and experience had nothing to do with tires or rubber. After reviewing Dr. Mil-ner’s testimony and evidence of his qualifications, it is clear that Dr. Milner’s education, training, and experience qualified him to render opinions in tire failure analysis, a subject within his area of specialized knowledge. Cooper Tire also challenges the reliability of Dr. Milner’s opinions. At trial, Dr. Milner explained his methodology in conducting a failure analysis. When conducting an tire examination for forensic science purposes, it is generally accepted that the examination must be nondestructive. First, Dr. Milner tries to obtain as many pieces of the failed tire as are available. He then starts nondestructive testing by identifying the type of product and the manufacturer. If there are fragments, as was the case with this particular' tire, Dr. Milner examines the pieces to determine whether they are, in fact, from the tire. Dr. Milner then fits the fragments together and indexes the pieces of the transferences with the body or carcass of the tire. Dr. Milner stated that there are certain characteristic failure modes, that is, ways in which the product fails that are characteristic of the product. In steel-belted radial tires, there are two characteristic modes of failure:(l) belt-belt separation or tread separation, which usually starts at the edges of the steel belts and progresses circumferentially and across the tire, culminating in the tread coming off due to centrifugal force; and (2) the possibility that the tire may have been underinflated during operation, in which case the sidewall will fail, rather than the tire tread coming off. If it were a case of sidewall failure, Dr. Milner would not pursue the matter further because the reasons for the failure are generally outside the scope of the manufacturer’s responsibility. Dr. Milner’s protocol started with an examination of the pneumatic sealing condition of the tire.Dr. Milner examines the pressure vessel for indications that it has lost air during its service life or has become damaged as a result of underinflation. In determining air retention, Dr. Milner considers the presence of punctures and examines the beads of the tire, which in a tubeless tire constitute the seal between the wheel and the tire, to see the beads have been compromised or damaged. Dr. Milner then examines the in-nerliner of the tubeless tire, the sealing membrane on the interior surface of the tire. In particular, he checks for any discontinuity or damage in the interior sealing surface. Dr. Milner also looks for evidence of underinflation in the past by examining for damage, or polish, where the lower sidewall of the tire and the wheel flange come into contact. After examining the sealing aspects of the tire, Dr. Milner next conducted a visual inspection of the fracture surface where the tread and steel belt separated from the inner. In this case, his inspection revealed that the separation was predominately between the inner and outer steel belts. He observed extensive belt edge separation around the circumference of the tire shoulders on both sides. The fracture structure indicated that a large section had peeled off in a single revolution while there were some marks that suggested another section came off after successive turns and had' the greatest difficulty separating. Specifically, Dr. Milner testified that there were a number of fracture lines at the end of the tread fragment that represent successive turn revolutions of the wheel as the tread was peeling off. However, in the extended area, there were none of the marks that represent tire wheel rotation. Therefore, he concluded that the extended area came off in a single revolution. The puncture wound in the tire was in the same general area as the section that had the greatest difficulty separating. In photograph enlargements of the separation surface, Dr. Milner observed fracture lines, or cracking marks, in the immediate vicinity of the puncture, which indicated that there was nothing in that area that represented an initiation of the crack. Other areas on the surface were smooth due to treading against the tire carcass, but in the puncture area, the cracking marks were sharp and unpolished, which indicated the separation surface was the result of tearing rather than the result of tire damage associated with the puncture. Dr. Milner concluded that the fracture that caused the tire to separate did not initiate in the puncture location because the area was characterized by tearing around it and not a polished surface, which indicates a growing separation that rubs against the other part of the carcass. Beyond his visual inspection of the tire, Dr. Milner did some further nondestructive testing on the tread fragment and did an x-ray examination of the full circumference of the tire carcass. He explained that the purpose of taking an x-ray of the tire was to inspect the arrangement of fine steel cables embedded in the rubber to see if there are any irregularities in the steel belt structure or damage to it. Dr. Milner observed a very small entry hole on the tread, which was characteristic of a nail. It was associated with some disruption of the tread, with damage to one steel cord and a slight perforation in the innerliner, but Dr. Milner believed the damage was very localized. Dr. Milner further examined the nail hole in the belts through micro lens photography. The photographs showed damage caused by a penetrating object, indicated that the object was small in diameter, and that there was no deviation between the parallel lines of the steel wire’s normal position. In sum, Dr. Mil-ner saw very little distortion due to the very small penetrating object. Dr. Milner also considered how well this tubeless tire sealed the puncture as it is designed to do. He saw no evidence that the nail caused defamation in the permanent bending in the cord structure. Dr. Milner also inspected the wires with a microscope and observed no polishing, which would have indicated that the nail was wiggling about and as a result burnishing the wires with which it came into contact. In Dr. Milner’s opinion, the nail had nothing to do with the belt tread separating. Based on his x-ray work, microscopic examinations, and physical inspection of the tire, Dr. Milner also concluded that the tire had not been operated in an underinf-lated condition. He found no evidence to suggest underinflation during his visual inspection of the sealing surfaces. The sealing characteristics of the beads were normal, were all in very good condition and there was no fabric exposed, which is significant to their inability to seal. The in-nerliner was not irregular, except for the small puncture hole. Dr. Milner also observed no exaggerated marks in the contact line between the rim flange and the bead area, which would have indicated the tire was run overdeflected in an underinf-lated manner. He did observe very light polish and no real groove, which meant very light use of the tires. Based on his examinations, Dr. Milner concluded that the tire developed belt edge separation early in its life and that the separation began at the cut edges of the steel belts and progressed circumferentially around both shoulders of the tire, which was evidenced by polishing. Dr. Milner stated that the separation extended further than one would expect “as a result of poor adhesion that existed between the inner and outer steel belt.” By examining the fracture surface, the surface of separation, Dr. Milner ascertained the characteristics of the manner in which it separated. He determined that it separated very readily which according to Dr. Milner is a characteristic of poor adhesion. Dr. Mil-ner explained to the jury that centrifugal force tends to throw the belt off, but it is retained by its adhesion to the other belt. In this case, as the separation of the belt edges progressed, it reached the point where it could peel off readily. The surface indicated to Dr. Milner that there were extended areas of it which were never bonded initially when it was made and the tread separated at those areas. On appeal, Cooper Tire argues that Dr. Milner’s opinions lacked a reliable foundation because he alleged an adhesion defect in the tire caused the separation, but never obtained rubber samples and did not conduct any adhesion testing. After reviewing Dr. Milner’s testimony, we conclude that the trial court did not err in finding Dr. Milner’s opinions to be based on a reliable foundation. Dr. Milner provided great detail concerning his methodology and procedure in tire examination. He also applied his experiential knowledge in failure analysis in determining the cause of the tread separation and in eliminating other potential causes. Jon Crate’s Testimony Cooper Tire also challenges the admissibility of expert testimony from Jon Crate. Specifically, Cooper Tire asserts that Mr. Crate was not qualified to testify as an expert in this case. Since Mr. Crate has not performed tire failure analysis outside the litigation process, is not a expert in tire design, tire manufacturing, or forensic tire examination, Cooper Tire asserts he was unqualified to render his opinions, which lacked scientific and objective support. Mr. Crate is a researcher at the Georgia Tech Research Institute. He holds a bachelor’s degree in chemistry and a master’s degree in polymer science and engineering. Mr. Crate spent two or so years working towards a Ph.D. in molecular cell biology, but did not receive that degree. He then spent two years doing research in molecular biology and biochemistry at the University of Alabama in Birmingham. In 1991, Mr. Crate was an analytical chemist for Applied Technical Services for seven and half years. His field of specialty is chemical analysis of polymers and foreign substances and failure analysis of polymers. Polymers as a group include all plastics, rubbers, coatings, paints, and composite made between different materials. For the past ten years, Mr. Crate has been doing chemical analysis of polymers, identification of foreign substances, and failure analysis of products made out of plastic and rubber composites. In this case, he was retained for the purpose of interpreting the RAPRA report results. Mr. Crate stated that RAPRA conducted two types of chemical tests, infrared spectroscopy and gas chromatography/mass spectroscopy. Since 1991, Mr. Crate has done such testing and interpreting of the results of testing on a weekly basis. In connection with his work at Georgia Tech, he has used three different infrared spectrometers to perform such tests. In the last two years, Mr. Crate has interpreted these types of tests and done analysis on seven tires. Mr. Crate did not consider himself an expert in tire design, tire manufacturing, or forensic tire examination. He is not a professional licensed engineer and has not published anywhere. In this case, Mr. Crate reviewed a copy of the RAPRA report, in particular the spectra presented as part of the report. Mr. Crate examined the spectra and compared it with known standard spectra from standard reference materials. Mr. Crate reached several conclusions as a result of his analysis of the data. Mr. Crate stated that RAPRA report concluded that the infrared spectra and the GC/MS data indicated the presence of paraffin wax in tested areas and he agreed with that conclusion. Mr. Crate explained that paraffin wax has identifying characteristics and the two techniques used by RAPRA were appropriate for identifying that chemical.' The report also concluded that there was no evidence of stearic acid present. In his analysis, Mr. Crate obtained infrared spectra for paraffin wax and stearic acid. Based on his review of Jean Hoffman’s testimony, Mr. Crate knew that she claimed they did not use paraffin wax to lubricate machinery as Mr. Angelí had indicated in his deposition testimony. Rather, she claimed the plant used stearic acid. The eight infrared spectra in the RAPRA report taken from samples of the underside of the belt that separated showed zero indication of stearic acid. Mr. Crate examined RAPRA’s infrared spectra and noticed that they found wax on the outer surface, but none on the cut face, that is, the bottom side of the tire tread. For Mr. Crate, the significance of this finding was that wax is incorporated into some tire components, but not others, and it is important in protecting the tread and sidewall against oxidation, UV degradation, and ozone degradation. Mr. Crate knew that wax was a component based on recipes he has seen in the Vanderbilt Handbook, the Rubber Formulary, and deposition testimony from Jerry Leyden, who confirmed that wax is used in the tread stock, in the sidewall, but not in the belt stock. In all the recipes, Mr. Crate has seen the wax found on the fracture site of this particular tire was not a part of the belt stock recipe. Mr. Crate opined that wax inhibits the adhesion to the steel. Mr. Crate was also aware of the contention that this particular wax migrated or moved from the tread and sidewalls in between the two belts. Mr. Crate agreed that wax, in fact, can migrate and that there are forces especially in a new tire that cause it to bloom to the surface. After reviewing four research articles, including “Quantitative Patterns of Blooming of Ozone-Protective Waxes in Tire Vulca-nisates” and “Migration and Blooming of Waxes to the Surface of Rubber Vulcani-zates,” Mr. Crate determined that it was not possible for the wax to bloom on the surface. From these studies, Mr. Crate concluded that it is well-known that paraffin waxes are capable of migrating to the surface by something called “blooming.” Mr. Crate also learned from the articles that: (1) wax is readily soluble in rubber during the hot mixing and curing processes; (2) waxes are insoluble or have very low solubility in rubber at room temperature; (3) once rubber has cooled back down, it crystallizes out and wax is not readily soluble in the rubber itself — this insolubility is the driving force causing blooming; (4) the rate of blooming over time drops off sharply once the wax is no longer supersaturated; (5) how long it takes to reach that plateau depends on the temperature, the concentration of wax, the type of rubber, the fillers used, the thickness of the rubber, and the molecular weight of the wax; (6) some waxes have a higher melting temperature and such waxes have a higher molecular weight; and (7) the length of the straight chain hydrocarbons in the wax affects the rate of migration and short chains will migrate quicker than long chains. After reviewing the testing done by.RA-PRA, deposition testimony, and the above factors, Mr. Crate concluded that wax would not be expected on the fracture surface of the belt skim stock. Mr. Crate was convinced that it came in during the manufacturing process, rather than coming from the tire and through the skim stock. Mr. Crate had five bases for concluding that the wax was a foreign substance and not part of the skim stock. First, the Vanderbilt Handbook and the Rubber For-mulary all show waxes in tread stock, but not in the belt skim stock. Second, deposition testimony confirmed that Cooper Tire and common industry practice is not to include wax in belt skim stocks. Third, Mr. Angell’s deposition testimony indicated that Cooper Tire used paraffin wax to lubricate the bias cutters. Fourth, RA-PRA reported data that wax was found on the fracture surface, but not on the cut faces and that the molecular weight distribution was not changed between what is used in the tread and what is found on the fracture surface. Fifth, diffusion through a belt skim stock, based on the research articles factors, would be limited by the solubility. Having reviewed Mr. Crate’s testimony, we find that the trial court reasonably concluded that Mr. Crate was qualified to render the opinions he made in this case. Mr. Crate demonstrated that he had specialized knowledge in chemical analysis, identification of polymer materials, and was familiar with technologies used in related testing. Mr. Crate explained his methodology in analyzing data from the RAPRA report and the research materials that informed his opinions in this case. Sufficiency of the Evidence Viewing the evidence in a light favorable to the verdict, we conclude that there is more than a scintilla of evidence to support the jury’s finding of a manufacturing defect. After reviewing all the evidence, we also conclude that the jury’s finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Issue One is overruled in its entirety. CAUSATION Sole Causation Theory In Issue Eight, Cooper Tire argues the trial court committed reversible error by excluding evidence of sole cause and by refusing to submit a sole cause instruction in its charge to the jury. At trial, Cooper Tire sought to introduce evidence that the minivan had a greater propensity to roll over because of the weight of the six passengers shifting to one side and that if everyone had been belted, Mr. Mendez would have controlled the vehicle. Juan Herrera, an expert for Cooper Tire, opined in a bill of exception that the passengers’ unrestrained condition caused the minivan’s trip and roll. Based on Mr. Herrera’s calculations, the van would not have tripped and rolled if all seven occupants had been wearing seat belts. Further, Mr. Herrera concluded that if the minivan had not tripped and rolled, the ejected passengers would not have sustained such serious injuries. Cooper Tire argues that this evidence was critical to its sole cause defense. However, we find that the trial court did not abuse its discretion in its ruling and refusal to submit the requested jury instruction because Cooper Tire’s sole causation defense turned on evidence which at the time of trial was inadmissible under the governing statute. Each party is entitled to submission of all of his theories if they have support in the evidence. Rankin v. Atwood Vacuum Mach. Co., 831 S.W.2d 463, 465 (Tex.App.-Houston [14th Dist.]), writ denied, per curiam, 841 S.W.2d 856 (Tex.1992). Sole proximate cause is an inferential rebuttal issue, which may be included in the jury instructions at the trial court’s discretion. Id. at 465; see also TEX. R.CIV.P. 277. Sole proximate cause applies to the conduct of others not a party to the suit. Rankin, 831 S.W.2d at 465; see also Montes v. Pendergrass, 61 S.W.3d 505, 508 (Tex.App.-San Antonio 2001, no pet.)(sole proximate cause application limited to circumstances in which evidence shows that a third person’s conduct, not the conduct of any of the parties to the lawsuit, is the sole proximate cause of the occurrence). In this case, Cooper Tire’s theory rested on the combined weight of the unbelted occupants, but three of the six occupants not wearing seat belts are parties to this suit. Therefore, the trial court did not err in refusing Cooper Tire’s instruction. Moreover, at the time of trial, the Transportation Code provided that the “[u]se or nonuse of a safety belt is not admissible evidence in a civil trial, other than a proceeding under Subtitle A or B, Title 5, Family Code.” TEX.TRANSP. CODE ANN. § 545.413(g)(Vernon 1999), repealed by Acts of 2003, 78th, R.S., ch. 204, § 8.01, 2003 Tex.Gen.Laws 847, 863. In Carnation Co. v. Wong, the Texas Supreme Court held that the plaintiffs “should not have the damages awarded to them reduced or mitigated because of their failure to wear available seat belts.” Carnation Co. v. Wong, 516 S.W.2d 116, 117 (Tex.1974)(per curiam). In Pool v. Ford Motor Co., the Court reaffirmed that holding and noted that the legislature had simply ratified Carnation’s policy for future cases. Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.1986)(discussing Tex.Rev.Civ.Stat. Ann. art. 6701d, § 107C(j), former version of Section 545.413(g)); see also Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex.1994)(Sub-section (j), in Section 107C was included to make it clear that the sole legal sanction for the failure to wear a seat belt is the criminal penalty provided by the statute and that the failure could not be used against the injured person in a civil trial). Based on the statute in effect at trial, we conclude the trial court did not abuse its discretion in excluding Cooper Tire’s sole causation evidence. Issue Eight is overruled. Expert Witnesses on Causation In Issue Six, Cooper Tire argues that the trial court erred in admitting expert testimony on causation from Stephen Arndt and Curtis Flynn. We review this issue under the standard of review for admission of expert testimony as previously set out in our discussion of Issue One. Stephen Arndt’s Testimony Cooper Tire does not challenge Stephen Arndt’s qualification as an expert witness. Rather, Cooper Tire asserts that Mr. Arndt’s opinions were unreliable and lacked a scientific or factual basis. Mr. Arndt has a background in engineering and owns a company that consults with the legal community on automotive crash safety issues. In this case, Mr. Arndt investigated this particular accident and inspected the accident vehicle and tire to understand how the tire tread separation related to vehicle handling. In so doing, Mr. Arndt utilized testing he had done and relied on his experience in his specialty field. His investigation involved reviewing materials such as the police report, police photographs of the accident scene, the accident vehicle, the tire, reviewing witness statements, and depositions of fact witnesses. Mr. Arndt inspected the accident vehicle with particular attention to the left rear wheel position where the tire tread came off of the tire. Based on his examination of the vehicle and other documentation related to this case, Mr. Arndt concluded that physical evidence on the vehicle showed that the initial tread separation interacted with the wheel well and some of the structures within the vehicle. Mr. Arndt opined that this interaction with the wheel well caused a dragging and pulling of the vehicle to that side, meaning the left rear separation pulled the vehicle to the left. This conclusion corresponded to testing Mr. Arndt has done in this area that demonstrated that a vehicle will initially pull to the left. Mr. Arndt also stated that physical evidence on the roadway showed tire marking going from left to right. Mr. Arndt believed that a steer back to the right had to have occurred to redirect the vehicle in that direction. He explained that with the tire tread gone from the vehicle at the left rear wheel position, the tire did not have the same frictional capacities or cornering capacities as a tire with tread. Under these circumstances, the vehicle behaves very differently; if one steers it to the right, it will oversteer, which is a vehicle characteristic in this condition. According to Mr. Arndt, in the first event, there was not much steering input by the driver that caused the vehicle to go to the right after it initially started to the left because the vehicle would have spun out. The driver countersteered back to the left and the vehicle came back in a counterclockwise rotation and then tripped and rolled over. After the driver steered back to the left, he lost control of the vehicle since at that point all the tires were saturated, meaning they lost their friction capability and were sliding. In Mr. Arndt’s opinion, the tread separation in the left rear caused the accident in this case. Mr. Arndt explained to the jury his testing procedures and the evidence of tire tread transfer markings on the vehicle, which formed the basis for his opinion on how the separation caused the accident. In this case, the tire tread started peeling off progressively from one side and as that occurred, it flapped around within the wheel well area. This created a drag effect and pulling of the vehicle to the left. This occurrence makes a very loud noise as the tread beats against various components of the vehicle and interacts with the ground. Mr. Arndt has done actual vehicle testing of a sport utility vehicle that showed the various effects of a tread separation on the handling characteristic of a motor vehicle. He has also conducted tread failure simulation testing to evaluate how a vehicle behaves as the tire tread is coming off the vehicle. In this open loop testing, the driver was instructed to hold the steering wheel straight in order to observe how the vehicle responded. In these tests, the right rear tire was modified to fail by cutting in between the steel belts or scoring the tire at an angle. The vehicle was instrumented and the data recorded was then analyzed. Based on the empirical testing, Mr. Arndt concluded that “as the tread comes off, the vehicle will pull to the side that the tread comes off.” Next, Mr. Arndt ran a series of tests and then analyzed how the vehicle would behave once the tread was gone. Mr. Arndt removed the outer steel belt to replicate the belt separation in this case. This testing showed that the vehicle with one tire tread separated behaved completely different from the vehicle with four good tires and showed oversteering characteristics and quickly ended up spinning out. According to Mr. Arndt, if the driver did not steer the vehicle in this accident, he would have gone off the left in the center median and perhaps had some other accident. Despite Mr. Mendez’s testimony that he never steered to the right, Mr. Arndt believed he must have steered to the right because physics did not support Mr. Mendez’s recollection. Likewise, physics did not support Mr. Mendez’s testimony that there was no pull to the left nor did it support Mr. Gonzales’s statement that the vehicle moved immediately to the right, not to the left. On appeal, Cooper Tire argues that Mr. Arndt’s opinions were unreliable because his testing was done with vehicles other than a Mazda minivan. At trial, Mr. Arndt testified that the oversteering characteristics he observed in testing happened across the spectrum of vehicles. Mr. Arndt stated that with regard to tread separation, a minivan is going to do the same thing and would be very similar to the sport utility vehicle used in the testing. Cooper Tire also asserts that his opinions lacked a reliable scientific or factual basis because his opinion was contrary to witness testimony. Review of Mr. Arndt’s testimony shows that he was aware of witness testimony and expressly disagreed with their recollection of events. Mr. Arndt instead formed his opinions based on test data and physical evidence of the scene and on the vehicle. We conclude that the trial court did not err in admitting Mr. Arndt’s testimony. Curtis Flynn’s Testimony Within Issue Six, Cooper Tire also asserts that Curtis Flynn’s opinion on how a vehicle reacts to a tread-belt separation was inadmissible because he was n