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Click here for the full text of this decision FACTS:This is an appeal from the granting of two no-evidence summary judgments in favor of the defendants in a product liability case. The appellant, Michael Alan Walker, filed suit against appellees Thomasson Lumber Co. and Cahaba Pressure Treated Forest Products Inc.) asserting that a utility pole, manufactured by Cahaba and distributed by Thomasson, contained a manufacturing defect that was the producing cause of injuries he sustained in a fall from that pole. Cahaba manufactures pine utility poles that it sells to Thomasson, a company that sells and ships utility poles to end users. Some of these poles were made according to specifications provided by Reliant Energy/HL & P, a customer of Thomasson. Thomasson would purchase the poles from Cahaba and ship or deliver them to a Reliant storage facility. Once delivered to the storage facility, Reliant would use them as needed and would notify Thomasson, which then invoiced Reliant for the poles used. HOLDING:Affirmed. Appellant argues his testimony and report of the accident combined with the testimony of Dwayne DeVries, the only witness who actually saw appellant fall, is evidence that the pole malfunctioned. However, appellant admitted that he was not looking at his feet when he fell and did not know why he fell. In addition, appellant admitted his version of the cause of the accident found in the Reliant accident report was what others had told him. DeVries testified that while he saw appellant fall, he did not know what caused appellant’s fall. The mere fact that an accident occurs with a product is not sufficient proof of a defect for purposes of strict products liability. Parsons v. Ford Motor Co., 85 S.W.3d 323 (Tex. 2002). Inasmuch as there was no witness who could testify as to the actual circumstances of appellant’s accident, there is no circumstantial evidence establishing a manufacturing defect, the court decides. Therefore, appellant’s case rests entirely on the opinion offered by his expert, James Taylor. Using the deposition testimony and documents produced in the litigation, along with his experience, Taylor opined that the utility pole from which appellant fell, which he had never seen, had compression wood which caused Walker’s fall. Taylor testified he knows of no studies using his experience-based methodology that would give a rate of error for it. In addition, he was not aware of any literature in the field that validates his methodology. Taylor agreed there were only two scientifically recognized methods for determining if a tree has compression wood: taking a boring sample or a cross-section from the tree and examining those samples to verify if the telltale compression wood rings are present. Taylor testified these are the only methods recognized in wood product literature and are the conventional and mainstream methods of determining compression wood’s existence. Taylor also admitted this case represented the first case involving a fall from a utility pole in which he rendered an opinion where he did not have an opportunity to either physically examine at least a section of the utility pole involved or photographs of that pole. Taylor also admitted that there were other reasons why climbers fall from utility poles unrelated to any flaw in the wood. Finally, Taylor did not testify as to any deviation of the utility pole from Reliant’s specifications as the specifications were not in evidence and he was unable to physically examine the pole. Taylor’s opinion that appellant’s fall was caused by compression wood represents nothing more than speculation and conjecture about what occurred at the time of the accident, and therefore constitutes no evidence that a defect existed in the pole. The court holds that appellant failed to produce more than a scintilla of evidence that the pole was defective at the time it left the hands of the manufacturer. The evidence was undisputed that Reliant, not Thomasson, had possession and control of the utility pole at all times relevant to this case. In addition, it was undisputed that it was Reliant, not Thomasson, that disposed of the utility pole in its ordinary course of business. As Thomasson did not have possession or control of the utility pole, appellant failed to establish his entitlement to a spoliation presumption and the trial court did not abuse its discretion by denying appellant an instruction on that presumption. OPINION:John S. Anderson, J.; Anderson, Edelman and Frost, JJ.

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