concurring and dissenting.
With some difficulty, I find myself in disagreement with the exceedingly well-written opinion of my colleague, Justice Mirabal. While I concur with the disposition of points one and two, I dissent to the disposition of points three and four, affirming the jury’s finding there was a design defect in the hot water heater valves.
‘Whether a product was defectively designed requires a balancing ... of its utility against the likelihood of and gravity of injury *312from its use.” Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 745-46 (Tex.1980). The jury was instructed: “A ‘design defect’ is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.”
As set out in the majority opinion, there was evidence demonstrating that acetal copo-lymer was not a suitable material for plumbing applications, as well as evidence that it was better than brass, the traditional material used for plumbing valves. However, in this case “the proof is in the pudding.” This was the first valve Apcom knew to fail out of 13 million it produced. Although Dr. Armen-iades was aware of one other such failure, that makes only two out of 13 million.
In balancing utility and risk to determine whether the acetal copolymer valves involved in this case were unreasonably dangerous, it is reasonable that if one out of 20, or one out of 50, or even one out of 1000, failed, then a manufacturer who knows about such failures should be held responsible for a design defect. When the number of failures known to the manufacturer prior to this case was zero, and the number of actual failures shown, including the one in this case, adds up to two out of 13 million, I believe a jury’s finding of design defect is manifestly unjust. When a product is found defective only once in 6.5 million times, it is not unreasonably dangerous. The risk is so miniscule as to be virtually no risk at all. Mathematically, the chance of failure would be .00000015 or fifteen millionths of one percent. Therefore, I would hold the jury’s finding of design defect is against the great weight and preponderance of the evidence so as to be manifestly unjust.
I would reverse the judgment of the trial court and remand for a new trial.