Open and Obvious Risk . . . or a/k/a "You Had a Bad Day"

You had a bad day. Like the song in the video, that phrase epitomizes an accident involving an open and obvious risk. The risk was right there, in front of you, and you ran headfirst into it in spite of yourself. You want to blame someone...someone should have told you about the danger. "That wheelbarrow should have warned about operating it near a trench!!!" But c'mon...you can't blame anyone. You knew better. You just had a bad day.

Admittedly, the accidents in the video are not directly on point as all of them do not necessarily involve a "product" per se. (Although any accident involving a ladder being placed near an obvious risk implicates Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708 (1996) discussed further below). However, the point remains the same. A seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Moore v. Barony House Restaurant, LLC, 382 S.C.35, 41, 674 S.E.2d 500, 504 (Ct. App. 2009); Anderson, 322 S.C. at 270, 471 S.E.2d at 710. This exception to the duty to warn includes dangers that are open, obvious, or matters that should be “common sense” to the user. Id; Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993).

The rationale for this exception is that the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Anderson, 322 S.C. at 270, 471 S.E.3d at 710 (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original).

This exception applies where the obvious risk poses a danger to the user of the product or to others. For example, operating an unlighted golf cart on a public highway at night has been held to present an open and obvious risk. In Moore v. Barony House Restaurant, LLC, the plaintiff brought negligence and strict liability claims against a golf cart manufacturer and claimed that the manufacturer failed to provide an adequate warning about operation of the cart at night and on public roads. The South Carolina Court of Appeals affirmed the circuit court’s grant of summary judgment for both claims, finding that “operation of an unlighted golf car on a public highway at night presents an open and obvious risk.” Moore, 382 S.C. at 42, 674 S.E.2d at 504. Furthermore, the court stated that although questions of negligence are often for the jury, there is no duty to warn of an open and obvious risk as a matter of law. Id.

The threat of electrocution from placing a ladder in close proximity to power lines has also been held to be an open and obvious risk. Anderson v. Green Bull, Inc. involved a lawsuit by the personal representative of a roofer who was electrocuted when his aluminum ladder came in contact with overhead power lines. The ladder contained a red warning label that read, “KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING.” Anderson, 322 S.C. at 270, 471 S.E.2d at 710. The trial court denied the manufacturer’s motion for a directed verdict, the jury returned a $50,000 verdict in favor of the plaintiff, and the trial court denied the manufacturer’s motion for judgment notwithstanding the verdict. Id. at 269, 471 S.E.2d at 710. However, the South Carolina Court of Appeals reversed the trial court’s decisions. The court did not believe that there was any evidence from which the jury could have reasonably inferred that the ladder was defective because “the conductivity of an aluminum ladder is a condition commonly known and recognized.’” Id. at 271, 471 S.E.2d at 711. “Any person of normal intelligence would know ‘the risk posed by an aluminum ladder in close proximity to an energized high-voltage line.” Id., 471 S.E.2d at 710. The plaintiff also raised the issue of whether the ladder manufacturer should have provided a warning to users to shorten the length whenever the ladder’s length would make it more dangerous because of surrounding conditions, such as overhead high voltage transmission lines. Id. at 271 n.3, 471 S.E.2d at 711 n.3. Because the manufacturer was not required to warn users to stay clear of power lines in the first place, the manufacturer was not required to warn users to take specific measures to stay clear of the lines (i.e., by moving the ladder, shortening it, or actions). Id.

Moore and Anderson involved injuries to the users of the products at issue. However, this exception also applies where certain use of a product poses a risk to someone else. A manufacturer is not required to warn about certain uses that could pose a danger to someone else as a matter of common sense. For example, in Dema v. Shore Enterprises, Ltd., the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). In reaching its conclusion, the court stated as follows:

[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.

Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982).

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'Tis the Season for Good Food...And Warnings

During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.

You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.

But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.

(1) Common Allergies

The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.

For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.

Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.

(2) Products Consumed Over a Long Period of Time

Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.

Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.

From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.

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Drilling Down: Does SC Recognize a Post-Sale Duty to Warn?

From doing research on warnings and from my experience in litigation, a frequent question that comes up is whether a manufacturer has a post-sale duty to warn, i.e., after the product is sold in the marketplace.

South Carolina does not recognize a post-sale duty to warn. In Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995), the South Carolina Court of Appeals agreed with the trial court’s charge that a manufacturer “has no duty to notify previous purchasers of its products about later developed safety devices or to retrofit those products if the products were nondefective under standards existing at the time of the manufacture or sale.” Bragg, 319 S.C. at 548, 462 S.E.2d 331. Subsequent cases have also cited to Bragg’s language and have indicated that South Carolina does not recognize a post-sale duty to warn. Ervin v. Continental Conveyor & Equip. Co., Inc., 674 F. Supp.2d 709, 725 (D.S.C. 2009); Campbell v. Gala Indus., Inc., No. 6:04-2036-RBH, 2006 WL, at *4-5 1073796 (D.S.C. Apr. 20, 2006).

I have seen defendants try to argue that Bragg's language supports that a manufacturer-defendant has no post-sale duty to warn...period. For example, I was involved in a case where one of the issues at trial was whether a manufacturer's service representative had a duty to notify a customer that a guard on the machine at issue was missing (i.e., a guard that might have prevented the injury at issue). The issue was framed as more of a negligent maintenance and inspection issue, as opposed to a products liability issue. However, the manufacturer argued that Bragg's language supported that it had no post-sale duty to warn of the missing guard during its maintenance of the machine.

This is not how I interpret Bragg. From my reading (and I welcome your comments), it clearly applies to improvements made after the manufacture of the product. In such cases, the manufacturer has no duty to circulate a new warning about the consequences not having the improvement, and it certainly has no duty to recall all products to retrofit them. However, I do not believe that it -- carte blanche -- means that a manufacturer has no post-sale duty to warn of any kind. See also Hubband & Felix, The South Carolina Law of Torts 292 (1997) ("Moreover, Bragg does not appear to be applicable to situations where a seller discovers dangers or defects after the sale. In this situation, the weight of authority clearly imposes a duty of due care on the seller.). Rather, the manufacturer has no post-sale duty to warn about improvements.

Although this is the current status of South Carolina law, recent opinions issued by the South Carolina Supreme Court have cited to the Restatement (Third) of Torts: Products Liability (1998) to support adoption of the risk-utility test as the exclusive test for a design defect claim. See Branham v. Ford Motor Co., No. 26860, 2010 WL 3219499 (S.C. Sup. Ct. Aug. 16, 2010) (citing to Restatement (Third) of Torts: Products Liability § 2b (1998) in support of adoption of risk-utility test); Watson v. Ford Motor Co., No. 26786, 2010 WL 3543725 (S.C. Sup. Ct. Sept. 13, 2010) (reiterating in footnote four its adoption of the Restatement (Third) approach for the risk-utility test in Branham). These opinions have been the subjects of prior blog posts where I noted the citation to the Restatement (Third).

Although this citation does not change South Carolina’s lack of recognition of a post-sale duty to warn, it may have opened the door for plaintiffs to argue that South Carolina should adopt other sections of the Restatement (Third), and specifically section 10. Section 10 of the Restatement (Third) provides for “Liability Of Commercial Product Seller Or Distributor For Harm Caused By Post–Sale Failure To Warn,” or a post-sale duty to warn.

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Case Brief: Nelson v. Coleman Co.

Today's case brief is Nelson v. Coleman Co., Inc., 249 S.C. 652, 155 S.E.2d 917 (Ct. App. 1967). This case involves a floor furnace and outlines a manufacturer's duty to test and inspect components in its products. It also discusses circumstantial evidence in a negligence case and the consequences of a defendant's failure to present its own evidence in response to a plaintiff's case. Specifically, although the decision admits that South Carolina does not recognize the Res Ipsa Loquitor doctrine, if a plaintiff is injured and provides circumstantial evidence to explain the cause of the injury, then a defendant proceeds at his own peril by not responding.

FACTUAL BACKGROUND: Plaintiff Homeowner purchased an oil burning floor furnace from Defendant Manufacturer through Defendant's authorized dealer. 249 S.C. at 655, 155 S.E.2d at 919. The dealer installed the furnace, and sixteen hours later, it emitted sparks and flames and destroyed the house and its contents. Id.

PROCEDURE: Plaintiff sued Defendant on negligence grounds. 249 S.C. at 655, 155 S.E.2d at 919. At trial, Defendant moved for nonsuit and directed verdict at the conclusion of Plaintiff's case, and without offering testimony or evidence of its own. Id. at 656, 155 S.E.2d at 919. The motions were denied, and the jury returned a verdict for Plaintiff. Id. Defendant moved for a judgment notwithstanding the verdict or a new trial, and both motions were denied. Id. Defendant appealed the denial of its motions by the trial court.

ISSUES: Defendant raised various different evidentiary and legal rulings as the basis for the appeal, including whether there was sufficient evidence of negligence and damages.

DISPOSITION: The South Carolina Supreme Court affirmed the rulings of the trial court. 249 S.C. at 662, 155 S.E.2d at 922.

RULES AND OPINION: The furnace was delivered from Defendant and installed at Plaintiff's residence without any changes to its condition. 249 S.C. at 655, 155 S.E.2d at 919. Plaintiff offered expert testimony that the fire was caused by a malfunctioning of the fuel regulator, which allowed oil to go into the burner and overflow and burn outside the furnace. Id. at 656, 155 S.E.2d at 919. Plaintiff's expert further testified that the defect in the fuel regulator was not apparent and could only be detected by testing conducted before shipping of the product. Id. at 657, 155 S.E.2d at 920. Defendant contended that the fuel regulator was manufactured by a third-party. Id. Although it was a component to Defendant's product, Defendant contended that it had no duty to test and inspect the component. Id. Even if it had a duty, Defendant contended there was no evidence that it failed to fulfill this duty. Id. The court stated the applicable law as follows:

It is generally held that a manufacturer who incorporates into his product a component made by another has a responsibility to test and inspect such component, and that his negligent failure properly to perform such duty renders him liable for injuries proximately caused thereby.

Id. In this context, the court believed that Plaintiff had provided sufficient circumstantial evidence to support that the fire was caused by the malfunctioning fuel regulator and that the defect could have been discovered by the Defendant with proper inspection and testing. Id. at 658, 155 S.E.2d at 920. Therefore, with regard to the sufficiency of evidence of negligence, there was no error in refusing the Defendant's motions. Id.

Defendant also contested whether Plaintiff had provided competent evidence to support a finding of money damages. Id. Plaintiff presented evidence that the reasonable value of items lost in the fire was $11,198.20, which included a list compiled by Plaintiff of the personal property lost in the fire. Id. at 659, 155 S.E.2d at 921. The court found that it was reasonable for Plaintiff to provide his own estimate of the value of the personal property, and there was no error in refusing Defendant's motions on grounds of insufficient evidence of damages. Id.

Defendant also contested that the trial judge erred in sustaining Plaintiff's objection to certain questions posed to Plaintiff's expert witness, i.e., "Is it customery in the trade for the manufacturers of these regulators to test them after they are manufactured." Id. at 660, 155 S.E.2d at 921. The court found that the trial judge's decision to sustain Plaintiff's objection to this question was not error because Defendant was able to pose a similar question to Plaintiff's expert and get his answer. Id. at 660-61, 155 S.E.2d at 921.

Defendant also asserted that Plaintiff's argument to the jury that Defendant had failed to produce witnesses or offer testimony was improper. Id. at 661, 155 S.E.2d at 922. The court disagreed, stating "We have held in a number of cases that it is proper for counsel to comment on the fact that the defendant has not taken the stand or offered testimony. It would be error in a criminal case so to do but not in a civil case. " Id. Therefore, the court held that this exception by Defendant was meritless. Id.

Finally, Defendant objected to the trial judge's charge that if a party fails to produce testimony of an available witness on a material issue, then the jury may infer that such testimony (if presented) would be adverse to the party failing to call the witness. Id. at 661-662, 155 S.E.2d at 922. Defendant's objection was that the trial judge left out the requirement that the witness be "available." Id. at 662, 155 S.E.2d at 922. However, the court found that Defendant had not properly preserved this objection at trial (i.e., Defendant did not request any clarification, amplification, or other curative measure by the trial judge). Id.

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Forthcoming Article on SC Warnings Law

I have been busy finalizing an article on South Carolina warnings law, and I'm pleased to announced that it is (tentatively) scheduled for publication in the January 2011 edition of South Carolina Lawyer. The article focuses on the theory behind warnings, when a duty to warn arises, and what makes a warning adequate (or inadequate). I have tried to exhaustively review any South Carolina authority I could dig up to study all of the nuances of South Carolina's warnings law. Once I hear final determination of publication, I will let any of my blog readers know of the month of publication, but it is currently scheduled for January. Look for it!

SC Supreme Court Issues Substitute Opinion in Watson v. Ford

Today, the South Carolina Supreme Court issued a substitute opinion in the Watson v. Ford Motor Co. case. The re-filed opinion can be found here (first opinion) and here.

I previously briefed this case at this post, so I plan to update it once I have had a chance to digest this re-filed opinion. The re-filed opinion appears to deal with the same issues that were in the first opinion (admission of testimony of two experts and admission of prior incidents). However, it also deals with Ford's motion for judgment notwithstanding the verdict and holds that the trial court erred in denying Ford's motion.

Be sure to check out footnote 4 where the court talks about its recent adoption of the Restatement (Third) approach to design defect cases. Informative footnote? Or more playing footsy with adopting the Restatement (Third) of Products Liability? You decide.

Check back for further analysis of this re-filed opinion.

Palmetto RIMS Speaking Engagement This Week

On Wednesday of this week, I had the opportunity to speak at the Palmetto Chapter of the Risk and Insurance Management Society, Inc. This is a great group of folks involved in insurance and risk management, and I appreciate them giving me the opportunity to meet them, eat lunch, and speak for about 30 minutes on "South Carolina Products Liability Law." I spoke about the nuts and bolts of South Carolina's products law, including the three elements common to all products claims, the economic loss doctrine, some case studies, and the future of this area of the law. Thanks folks for your hospitality!

New SC Products Liability Case: Holst v. KCI Konecranes International Corporation

Yesterday, the South Carolina Court of Appeals affirmed summary judgment in Holst v. KCI Konecranes International Corporation, Opinion Number 4736 (Sept. 9, 2010), which can be found here. I have not yet read it in its entirety, but the case involved a man's death when he was crushed under some containers that were being stacked by a crane. The plaintiff alleged that the crane was defective because of visibility limitations from the crane's cab.

At the circuit level, KCI filed a motion for summary judgment on grounds that there were no genuine issues of material facts as to the claimed defective and unreasonably dangerous condition of the crane. KCI asserted asserted additional grounds for summary judgment including comparative negligence and assumption of the risk. In addition to visibility limitations, Holst proposed mounting a closed-circuit video camera on the edge of the crane's trolley as a feasible design alternative to increase the operator's visibility. Holst also argued KCI failed to warn crane users about the crane's sight limitations. The circuit court granted summary judgment, and determined Holst's defective design and failure to warn claims failed as a matter of law.

The Court of Appeals affirmed the decision, and a quick reading indicates that the Court focused on the failure of plaintiff's experts to incorporate the risk-utility test into their analysis. There is also discussion of industry standards, the fault analysis in a negligence theory, and plaintiff's warnings claim. I will try an get a brief up in the next few days, but this looks like an interesting case.

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Ten Takeaways from Branham v. Ford Motor Co.

By Brian A. Comer

I'm sure many folks who have stumbled across my site as a result of the Branham v. Ford Motor Co. case are looking at the case "brief" below, and their eyes are glazing over at its sheer length. Trust me, it took awhile to digest the case and write it. So...what's the "meat of the coconut" as a former colleague of mine used to say? Here are my "Ten Takeaways from Branham v. Ford Motor Co."

(1) Where strict liability and negligence are asserted as product liability claims in South Carolina, failure to prove an element that is common to both results in a directed verdict of both. In other words, if you cannot prove the product was defective and unreasonably dangerous for one of the claims, then the other does not survive either. Although there may be circumstances where one of the claims survives, it depends on the basis of the dismissal of the other claim.

(2) There is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. (This is significant to me, as "failure to test" has become a prevalent theory, especially in drug and medical device cases).

(3) As a sports talk radio host that I listen to says, "POWWWWWWWWW!!!!"....the consumer expectations test is GONE in a South Carolina design defect case. The risk-utility test is now the exclusive test, and it requires proof of feasible alternative design. Also, in supporting this holding, the Court cited extensively to the Restatement (Third) of Torts: Products Liability, which opens the door to its adoption in South Carolina.

(4) "The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper." Admission of it is prejudicial.

(5) Although evidence of other incidents must be "substantially similar" and tend to prove or disprove some fact in dispute to be admissible, this issue is not even examined if the evidence is post-distribution evidence (see number 4). If it is pre-manufacture, then the Court will look at whether the data is relevant to an issue, even if the specific cause of the other incident is not known (e.g., comparative rollover data).

(6) You cannot inflame the passion and prejudice of the jury with inadmissible and prejudicial evidence in your closing argument. Period.

(7) If co-defendants are joint tortfeasors under the law, then it is improper to apportion fault on the jury form.

(8) The "harm to others" prohibition is alive and well in South Carolina when it comes to punitive damages. Trying to convince a jury that they should punish a manufacturer for all other injuries/deaths/etc. is forbidden by South Carolina and federal authority.

(9) When it comes to evidence for punitive damages, net worth is the safest harbor. Although admission of extrapolated financial data (down to hourly and daily income) has not been found to be abuse of discretion, the Court indicated there could be a limit to this kind of evidence. Furthermore, if you start getting into compensation of executives, stock options, etc., you are asking for reversal on the basis of prejudice.

(10) Courts have authority to re-align parties at any time and at their discretion.

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Case Brief: Branham v. Ford Motor Co.

By Brian A. Comer

Below is a case brief of the South Carolina Supreme Court's August 16, 2010 decision in Branham v. Ford Motor Co. (first posted about here). This is not that "brief," but bear in mind that the majority opinion alone is about 25 pages and will probably be the new authority on products liability law in South Carolina for years to come.

FACTUAL BACKGROUND: Cheryl Hale ("Hale") purchased a used 1987 Ford Bronco II 4x2 in June of 1999. The vehicle was manufactured in 1986 and had 137,500 miles on it. On June 17, 2001, Hale was driving with her child in the passenger seat and Plaintiff Jesse Branham, III ("Plaintiff") in the backseat. No one was wearing a seatbelt. Hale turned to the backseat to ask the children to quiet down. When doing this, she veered toward the shoulder of the road and the right wheel left the roadway. She responded by overcorrecting to the left. The overcorrection led to the vehicle rolling over, and Plaintiff was thrown from the vehicle and injured.

PROCEDURE: Plaintiff filed a lawsuit against Ford and Hale in Hampton County. Plaintiff did not seriously pursue the case against Hale. The case against Ford was based on two product liability claims (a defective seatbelt sleeve claim and a "handling and stablility" design defect claim relating to the rollover). Both claims were pursued in negligences and strict liability. The jury awarded the plaintiff $16 million in actual damages and $15 million in punitive damages. Ford appealed the verdict pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

ISSUES: Ford raised issues on appeal relating to (i) the design defect claim (including whether negligence could survive if the trial court granted a directed verdict on strict liability, as well as the proper test for determining if a product is defective and unreasonably dangerous in a design defect claim), (ii) the admission of post-distribution evidence, evidence of other similar incidents, and use of certain evidence during closing arguments, as well as the format of the verdict form, and (iii) the excessiveness of actual and punitive damages. The Court also addressed the issue of the alignment of the parties.

DISPOSITION: Affirmed in part, reversed in part, and remanded for a new trial.

RULES AND OPINION: Set forth below is a summary of the Court's opinion, providing headings concerning the subject matter and primary holdings in bold-faced type.

Design Defect Claims

First, the Court held that the trial court erred in directing a verdict on Plaintiff's strict liability seatbelt claim, but not on the same claim brought in negligence. At trial, Plaintiff claimed that Ford was negligent in failing to adequately test the seatbelt sleeve, but did not challenge the seatbelt sleeve design. Plaintiff had also brought a companion strict liability claim. The trial court directed a verdict on the strict liablity claim, but not on the negligence claim. Because the two claims have common elements (namely, the requirement that the product be in a defective and unreasonably dangerous condition), Ford argued that the negligence claim should have also been dismissed. The Court agreed: "When an element common to multiple claims is not established, all related claims must fail." Whether or not the manufacturer was at fault -- the additional element required for a products liability claim brought pursuant to a negligence theory -- is not even reached if a plaintiff cannot prove the predicate element of defective and unreasonably dangerous condition of the product. The Court distinguished the Court of Appeals decision in Bragg v. Hi-Ranger on this issue and emphasized that the critical inquiry as to whether one of the claims survives (where the other is dismissed) is the grounds for the dismissal. Significantly, the Court also agreed with Ford's argument that there is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. If the product is not defective and unreasonably dangerous, then failure to test cannot be a proximate cause of an injury.

With regard to the "handling and stability" design defect claim, the Court did not find error in the trial court's submission of these design defect claims to the jury. In reaching this determination, the Court reviewed certain testimony by Plaintiff's expert Dr. Melvin Richardson, former Ford Vice President Thomas Feaheny, and certain internal Ford documents relied upon by Dr. Richardson. In short, the Court discussed the evolution of the Bronco II's suspension, including competing views by Ford engineers and Ford executives about the different suspension options, including the "MacPherson" suspension and the "Twin I-Beam" suspension. The testimony and evidence related to the stability of the vehicles while using alternative suspensions, how using the different suspension options would affect rollout of new models, how they would impact other features of the vehicle, and the procedures and motivations behind selecting certain suspension options. Dr. Richardson testified that from all of the evidence, the Bronco II was "dangerously unstable" when it was designed and built, and that no improvements were made to correct this defect. After reviewing the evidence that was presented, the Court agreed with the trial judge's determination that Plaintiff presented sufficient evidence of a design defect known to Ford at or prior to the date of manufacture to withstand a directed verdict motion.

Next, the Court disagreed with Ford's contention that Plaintiff failed to provide evidence of a reasonable alternative design pursuant to the risk-utility test, but agreed that South Carolina law requires a risk-utility test in design defect cases (to the exclusion of the consumer expectations test.) The Court reviewed the prior opinions summarizing the two tests in Claytor v. General Motors Corp., 277 S.C. 259, 262, 286 S.E.2d 129, 131 (1982) and Bragg v. Hi-Ranger, 319 S.C. 531, 543, 462 S.E.2d 321, 328 (Ct. App. 1995). [The two tests are summarized here, as stated in Bragg]. After reviewing the prior case law, the Court again reviewed the competing suspension options (summarized above) and believed that Plaintiff's focus on the Macpherson suspension was evidence of feasible alternative design. The Court stated that whether this alternative satisfied the risk-utility test was a jury question, but the evidence itself was sufficent to survive a directed verdict motion. The Court then held that "the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design." While the consumer expectations test fits well in manufacturing defect cases, the Court agreed with Ford that it is ill-suited in design defect cases. The Court noted that in 1974, South Carolina's Legislature adopted the Restatement (Second) of Torts section 402(A) (1965) and identified its comments as legislative intent in S.C. Code section 15-73-10 through 15-73-30. However, since this adoption, the Court noted that the American Law Institute has published the Restatement (Third) of Torts: Products Liability (1998), and that this edition moved away from the consumer expectations test for design defects, and toward the risk-utility test. The Court stated that it did not believe that the Legislature intended to foreclose court consideration of developments in products liability law. The Court noted that its approval of the risk-utility test in the Claytor case had not prompted a legislative response, and the overwhelming majority of jurisdictions now employ some form of the risk-utility test.

We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer's design. Conversely, we find the consumer expectations test and its focus on the consumer ill suited to determine whether a product's design is unreasonably dangerous.

The court reviewed prior cases in which there was an emphasis on showing a feasible alternative design in the context of a risk-utility analysis, including Claytor, Bragg, Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 176, 246 S.E.2d176, 178 (1978), Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868, 870 (Ct. App. 1990), and Gasque v. Heublein , Inc., 281 S.C. 278, 283, 315 S.E.2d 556, 559 (Ct. App. 1984). [A review of feasible alternative design law preceding Branham v. Ford Motor Co. can be found here]. The Court noted as follows:

The very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test.

The Court then cited to the Restatement (Third) of Torts: Products Liability section 2(b) (1998) and University of South Carolina Professor David Owen's article Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 Tex. L. Rev. 1661, 1687 (1997) to support the risk-utility test and reasonable alternative design (as a requirement of same). The Court stated that the core of the risk-utility balancing test is whether a product was made safe enough, but cautioned that it also adhered to its longstanding principle that just because a product can be made safer does not mean that the product is defective and unreasonably dangerous.

Evidentiary Issues Justifying

Reversal and Remand for New Trial

Notwithstanding the sufficiency of the evidence to withstand a directed verdict on the handling and stability design defect claim, the Court reversed and remanded the case for a new trial, citing three reasons.

First, Ford was prejudiced by Plaintiff's unrelenting pursuit of post-distribution evidence on the issue of liability. The Court reviewed South Carolina's requirement that a plaintiff must show the product was in a defective condition "'at the time that it left the hands of the particular seller.'" (quoting Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 131-32 (1982). Post-distribution evidence is "evidence of facts neither known nor available at the time of distribution." The Court again cited to Restatement (Third) of Torts: Products Liability section 2, cmt. a (1998) to support that assessing liability in a products liability claim requires evaluation of a manufacturer's decision based on what was known or "reasonably attainable" at the time of manufacture.

The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper.

The Court reviewed numerous examples of post-distribution evidence emphasized by Plaintiff at trial and through Dr. Richardson to support a higher rollover tendency of the Bronco II t(evidence hat came to light after manufacture). The Court found this evidence to be prejudicial and stated that "the law should encourage manufacturers to continue to improve their products in terms of utility and safety free from prior design decisions judged through the lens of hindsight."

Second, the trial court agreed that admission of certain post-distribution "other incident" evidence was prejudicial to Ford, but also ruled against Ford on certain pre-manufacture "other incident" evidence. The Court surveyed South Carolina's law that similar accidents are admissible if the tend to prove or disprove some fact in dispute. However, the Court noted that it need not even address whether certain post-distribution evidence admitted into evidence was "substantially similar." "The post-manufacture evidence of purported similar incidents was error, even if the 'substantially similar' threshold was met." The Court reiterated that post-manufacture evidence of similar incidents is not admissible to provide liability. The Court then reviewed the pre-manufacture rollover data introduced by Plaintiff with regard to the Bronco II and other vehicles in the same class. The Court disagreed with Ford's contention that the pre-manufacture comparative evidence of rollover accidents violated the "substantially similar" test articulated in Whaley v. CSX Transportation, Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005) and revisited in Watson v. Ford Motor Co., Op. No. 26786 (S.C. Sup. Ct. filed Mar. 15, 2010) (Shearouse Adv. Sh. No. 10 at 37). Even though there was no showing that the cause of the other accidents was similar to the Plaintiff's rollover accident, the Court found that the rate of rollover of the Bronco II compared to other vehicles was relevant to whether the Bronco II had an unreasonably dangerous tendency to rollover. The Court was not persuaded by Ford's arguments that many accidents may be attributable to inexperienced or impaired drivers, or that Hale's inattention was the cause of the accident.

Third, Plaintiff's counsel's closing argument was designed to inflame and prejudice the jury. The Court provided six different examples of excerpts from the closing argument that served as examples of its inflammatory and prejudicial content. The Court also noted that much of the argument was based on inadmissible evidence.

Next, in light of the remand for a new trial, (and without addressing whether it was prejudicial to Ford) the Court held that the trial court's requirement that jthe ury apportion liability between Ford and Hale on the verdict form was error. Because the accident occurred in 2001, Ford and Hale were joint tortfeasors, meaning that they were jointly and severably responsible for all damages. Therefore, there could be no apportionment of fault. The Court noted that that it had reaffirmed the applicability of joint and several liability among joint tortfeasors since adopting the doctrine of comparative negligence. The Court further rejected the trial court's rationale that the apportionment was necessary to ensure that any punitive damages award was based on negligence, and not strict liability (for which punitive damages are not recoverable, discussed here).

Excessiveness of Damages Issues Raised by Ford

Next, the Court addressed the jury's award of $16 million in actual damages and $15 million in punitive damages. In light of the remand for a new trial, the Court found it unnecessary to resolve Ford's claim that the actual damages award was grossly excessive.

With regard to punitive damages, the Court found that the issue was properly submitted to the jury, but agreed that the award could not withstand constitutional scrutiny. Because of the new trial, the Court addressed Plaintiff's reliance on "harm to others" in the closing argument. A central theme of the closing argument was that the jury should punish Ford for harming all Bronco II rollover victims. The trial court charged the jury not to punish Ford for other "conduct." The Court found that this charge violated the "harm to others" prohibition because by focusing on conduct, as opposed to harm to Plaintiff, the charge invited the jury to punish Ford for all Bronco rollover deaths and injuries, which is forbidden by Durham v. Vinson, 360 S.C. 639, 653, 602 S.E.2d 760, 767 (2004) and Philip Morris USA v. Williams, 549 U.S. 346, 350, 353 (2007).

With regard to financial data, the Court stated that South Carolina upholds that the wealth of a defendant is a relevant factor in assessing punitive damages. The Court reviewed Plaintiff counsel's focus on extrapolating financial data in such a manner so as to break it down in terms of daily income, hourly income, etc. Although prior opinions have not found abuse of discretion in the admission of per day earnings of a defendant, the Court believed that evidence of "net worth" appears to be the safest harbor and directed that the retrial be confined to such evidence. The Court also found that the Plaintiff's introduction Ford's senior management compensation (including salaries, bonuses, stock options, etc.) to be error and highly prejudicial.

Alignment of Parties

Finally, the Court addressed Ford's claim that the trial court should have realigned Hale as a plaintiff. Although the Court did not find that this issue was preserved for review, it addressed it "in the hope that our speaking to the matter will aid the bench and the bar." The Court reviewed the evidence at trial to support that Hale sat on the plaintiff's side during the trial and only cross examined one witness for Plaintiff (and the sole question to Plaintiff's economic expert was, "How many millions are in a billion?"). The Court concluded that the only bona fide defendant in the case was Ford. The Court reviewed Rule 21 of the South Carolina Rules of Civil Procedure and its federal counterpart, as well as federal and state authority interpreting them. From this review, the Court adopted the rule that trial court's have the authority to realign parties "at any state of the action." It is within the sound discretion of the trial court and will not be disturbged on appeal absent a showing of an abuse of discretion and resulting prejudice.

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New SC Products Liability Decision

The South Carolina Supreme Court handed down a massive products liability decision in yesterday's advance sheets, Branham v. Ford Motor Company, Opinion Number 26860 (Aug. 16, 2010). The case can be found here and beginning on page 52 here. This opinion is over 40 pages long in the Advance Sheets, and a quick skim indicates that it may be a tutorial for years to come on South Carolina products liability law.

I have only had time for a quick skim, but the case involves the rollover of a 1987 Ford Bronco II 4x2 manufactured in 1986. At trial, a minor passenger brought suit against the driver and Ford, and the jury awarded $16 million in actual damages and $15 million in punitive damages. In its opinion, the South Carolina Supreme Court reverses and remands the findings of liability and award of actual damages. The bases for this decision are (1) that whether a product is defective is measured on the basis of information available at the time of manufacture, and post-manufacture evidence is generally not admissible, (2) the plaintiff introduced evidence of other incidents that was not substantially similar to the accident in dispute, and (3) the closing argument was a direct appeal to the passion and prejudice of the jury.

Folks, this opinion has a TON of information relating to design defect theories, post-distribution evidence, admissibility of similar incidents, appropriateness of closing arguments, verdict forms, apportionment of fault among tortfeasors, actual and punitive damages, and "alignment of parties." And check out this language:

While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature's presence in the area of strict liability for products liability.

We now have clear direction from South Carolina's Supreme Court on the consumer expectations and risk-utility tests (summarized here), and we also have clear direction on whether feasible alternative design is a required element (the subject of this post).

This case will definitely will be the subject of a forthcoming brief, but clearly it is one that will be required reading.

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The Learned Intermediary Doctrine in South Carolina

I converted a prior post I did about the Learned Intermediary Doctrine (see prior post) to an article awhile back, and the good folks at the South Carolina Defense Trial Attorneys' Association included it in their Spring edition of "The Defense Line."

The article in its entirety can be found here.

New Products Liability Decision in This Week's Advance Sheets

The South Carolina Supreme Court today issued its decision in Priester v. Ford Motor Co., et al. The decision can be found here and beginning on page 12 here. A quick cut and paste of the lead-in paragraph provides a good synopsis of its holding, and I will try and get a briefing posted that goes into more detail. As Justice Kittridge states in the lead-in paragraph:

This case concerns whether Federal Motor Vehicle Safety Standard 205 (49 C.F.R. § 571.205 (1971)) preempts a state law products liability claim premised solely on a manufacturer's choice of tempered glass for a vehicle's side windows. Federal Motor Vehicle Safety Standard 205 (Regulation 205) mandates that "[g]lazing materials[1] for use in motor vehicles … shall conform" to the American National Standard Institute "safety code for safety glazing materials." Courts across the country faced with this issue have struggled with the preemptive effect, if any, of Regulation 205 and have reached opposite conclusions. Pending resolution from the United States Supreme Court, we join those jurisdictions finding the federal regulation preempts state law, and therefore, we affirm the trial court's grant of summary judgment in favor of Ford Motor Company.

Feasible Alternative Design in South Carolina Products Liability Law

UPDATE TO THE BELOW POSTED AUGUST 25, 2010: The South Carolina Supreme Court has now decided the issue of whether evidence of feasible alternative design is required in a design defect products liability action. Please see the posts concerning Branham v. Ford Motor Co. here and here for this development.

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It's been a busy summer at the South Carolina Products Liability Law Blog...so busy that I haven't been able to post much. I got pulled into a trial about 7 weeks ago, and just finished up. Therefore, there hasn't been much time for posting.

However, Collins and Lacy had the good fortune to have some law clerks join us for the summer, and one was gracious enough to carry the torch for me and put together a great survey of one area of products law. Specifically, one of the issues in my trial was whether South Carolina requires proof of feasible alternative design in a products case. Although many jurisdictions make feasible alternative design a per se element of any products case, South Carolina's state and federal courts have been less clear.

Brian Macho was up to the challenge of tackling this issue and sorting it out. Brian is a rising third year law student at Charleston School of Law in Charleston, South Carolina. In addition to having great research and writing skills, he also has a mean golf game (and played collegiately at Nova Southeastern University in Fort Lauderdale, Florida). Set forth below is Brian's work on this issue, and I greatly appreciate him providing some content to help me get over the hump in what has been a very, very busy summer.

Is proof of a feasible alternative design a necessary element for a plaintiff to prevail on a design defect claim in South Carolina?

By Brian Macho

Whereas many other jurisdictions clearly require that a plaintiff produce evidence of a feasible alternative design as part of their prima face design defect claim, South Carolina law has been less than clear since the Court of Appeal’s decision in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). In granting Defendant’s directed verdict motion in Bragg, the court noted Plaintiff “failed to introduce evidence of a feasible alternative design.” Bragg, 319 S.C. 546, 462 S.E.2d 330. This language left South Carolina law in a confounded state. Recently, however, it appears the United States District Court for the District of South Carolina, in Disher v. Synthes (U.S.A.), 371 F. Supp. 2d 764 (D.S.C. 2005), clarified that proof of a feasible alternative design is a “required element” of a plaintiff’s design defect case. Disher, 371 F. Supp. 2d at 771.

The issue of whether proof of a feasible alternative design is a required element in a product liability case was framed, explored, but not entirely answered by the court in Little v. Brown & Williamson Tobacco Corp., 243 F. Supp. 2d 480 (D.S.C. 2001). In Little, the widow of a smoker of over thirty years sued the defendant cigarette manufacturers – alleging, among other causes of action, design defect – for her deceased husband’s lung cancer and smoking related injuries. Id. at 485. In support of its motion for summary judgment, the defendant argued the plaintiff could not meet her burden to prove a safer and feasible alternative design for cigarettes. Id. at 494. The plaintiff countered by arguing proof of a feasible alternative design is not a per se element of a plaintiff’s design defect case in South Carolina, but rather merely a factor to be considered in the risk-utility analysis to determine whether the product is unreasonably dangerous. Id. at 495. Thus, the issue of whether a feasible alternative design is a per se element of a products liability claim was squarely before the court. Id. In its analysis, the Little court initially noted that “South Carolina courts have not explicitly decided whether showing a safer alternative design is a per se element in a product liability case.” Id. at 495. The court went on to explain, however, that “failure to provide such proof can doom a case as a matter of law.” Id. (citing Sunvillas Homeowners Assoc. v. Square D Co., 301 S.C. 330, 391 S.E.2d 868, 870 (1990) (noting, while upholding the trial court’s grant of summary judgment in favor of the defendant, that the plaintiff failed to offer any evidence of an alternative design); Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.e.2d 556, 559 (1984) (holding the issue of negligent design was properly submitted to the jury where the plaintiff introduced expert testimony that a feasible, safer alternative design existed and two company reports of the defendant which stated that a safer alternative design existed)). Finding the plaintiff had presented sufficient evidence to create a genuine issue of fact concerning whether a feasible alternative design existed, the court denied the defendant’s motion for summary judgment, and avoided clarifying the issue. Id. at 496. “Thus, whether the requirement that evidence of a safer alternative design is characterized as an element of Plaintiff’s products liability case or a factor to be weighed in the risk-utility analysis, it is clear the South Carolina law requires that Plaintiff provide such evidence in order to survive summary judgment.” Id. at 496; see also Simo v. Mitsubishi Motors North America, Inc., 245 Fed. Appx. 295 (4th Cir. 2007) (holding evidence of other SUVs already on the market at the time the subject SUV was designed was sufficient to prove the existence of a feasible alternative design to overcome summary judgment).

Most recently, the issue was again addressed in Disher v. Synthes (U.S.A.), 371 F. Supp. 2d 764 (D.S.C. 2005), where the court indicated evidence of a “feasible design alternative” is a “required element of plaintiff’s case.” Id. at 771. In Disher, the plaintiff had a titanium humeral nail implanted into his arm following a car accident to act as a temporary internal splint to align a fracture and enable healing. After the nail subsequently fractured while still inside the plaintiff’s arm, requiring surgical repair, the plaintiff filed a products liability action against the manufacturer of the nail, alleging design defect. However, the court granted the defendant’s motion for summary judgment, finding the plaintiff failed to proffer “the expert testimony . . . required to establish . . . the nail was defective and unreasonably dangerous.” Id. at 769. Initially, the court noted the plaintiff must produce relevant and reliable expert testimony to establish a product defect in medically complex cases. Id. The plaintiff had offered the expert testimony of a metallurgist untrained in biomechanical design. Furthermore, the plaintiff’s expert declined to label the subject nail “defective” because of his inexperience with biomechanics, but testified that the nail could have been made stronger with some untested, theoretical modifications. The court found this testimony insufficient to create a genuine issue for the jury. Moreover, the court explained “[t]he law recognizes that every product on the market could be ‘made stronger’ or ‘more safe,’ but the mere fact that the product could be ‘stronger’ or ‘safer’ does not establish a design defect or an unreasonably dangerous condition, as a matter of law.” Id. at 770 (citing Claytor v. General Motors Corp., 277 S.C. 259, 265, 286 S.E.2d 129, 132 (1982) (noting that a risk-utility analysis must be performed to weigh the usefulness and desirability of a product as it exists against any attempt to make it “more safe”)). Next, the court explained, to survive summary judgment, it is “crucial” that a plaintiff offer a feasible alternative design, and that untested conceptual design theories will not suffice. Id. at 771 (citing Little, 243 F. Supp. 2d at 495-96). Finally, the court clarified the relationship between feasible alternative designs and risk-utility analyses: “In determining whether an alternative design is practical or feasible, courts will look to see whether a risk-utility analysis has been conducted to weigh the benefits of any new design against the costs and potentially adverse consequences of the design.” Id. at 771-72 (citing Claytor, 277 S.C. at 265, 286 S.E.2d at 132 (identifying the factors to consider as part of the risk-utility analysis, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger). Although Disher addressed the issue of whether a feasible alternative design is required at the summary judgment stage, the courts reasoning indicates proof of an alternative design is a “required element” to prove a product is defective and unreasonably dangerous. Id. at 771.

Thus, Disher clarifies two fundamental points for design defect claims. First, the plaintiff must present evidence of an alternative feasible design to establish that a product is defective and unreasonably dangerous. Second, to prove the feasibility of an alternative design the plaintiff can present evidence either of other products incorporating an alternative design currently existing in the market or evidence that a risk-utility analysis has been conducted to weigh the benefits of any new design against the costs of the design. Id. at 771-72; see also Simo, 245 Fed. Appx. 295 (holding evidence of other SUVs already on the market at the time the subject SUV was designed was sufficient to prove the existence of a feasible alternative design to overcome summary judgment).

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Congratulations to the University of South Carolina Fighting Gamecocks, 2010 College World Series Champions!!!

I'm an avid college baseball fan and received three degrees from the University of South Carolina, so although it has absolutely nothing to do with products liability, I cannot resist a congratulatory post after our team won its first National Championship in a major sport last night in a 2-1, 11th inning victory over UCLA at the College World Series, the last game in historic Johnny Rosenblatt stadium. We came out of the "loser's bracket" to win 6 straight games and clinch a championship.

Our opponents may want to consider a products liability claim against their bat manufacturers. Our pitching was dominant. Great job guys, and congratulations!

Case Brief: Koester v. Carolina Rental Center

By Brian A. Comer

Today's case brief is Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). Koester is a short case that focuses on proximate cause (i.e., foreseeability) and application of S.C. Code section 15-73-20 in a products case.

FACTUAL BACKGROUND: Defendant Carolina Rental Center ("Defendant") rented tree climbing equipment to climbers. 313 S.C. at 492, 443 S.E.2d at 393. However, Defendant did not include with the rental equipment a device (a "lanyard") that prevents the climber from falling away from the tree. Id. The reason for the omission was that Defendant feared liability if the device became worn and broke during use. Id. Instead, Defendant instructed consumers to purchase a rope. Id. Plaintiff was using the rental equipment when a knot is his rope gave way, and he fell 50 feet. Id., 443 S.E.2d at 394.

PROCEDURE: Plaintiff sued for negligence, breach of warranty, and strict liability. 313 S.C. at 492, 443 S.E.2d at 394. Defendant moved for summary judgment, which was granted by the trial court and affirmed by the South Carolina Court of Appeals at Koester v. Carolina Rental Center, Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993). Id. Plaintiff petitioned the South Carolina Supreme Court for writ of certiorari to review the Court of Appeals' decision. Id. The South Carolina Supreme Court granted the petition. Id.

ISSUES: Did the appellate court err in affirming summary judgment for Defendant?

DISPOSITION: Yes. Reversed.

RULES AND OPINION: The court reviewed the standard for summary judgment and then reviewed Plaintiff's first ground for error (relating to whether his own negligence was the proximate cause of his injuries). 313 S.C. at 493, 443 S.E.2d at 394. "The touchstone of proximate cause in South Carolina is foreseeability. Foreseeability is determined by looking to the natural and probable consequences of act complained of." Id. (citing to Young v. Tide Craft, 270 S.C. 453, 462, 242 S.E.2d 671, 675 (1978)). From the evidence in the case, Defendant knew that some of their renters did not understand the equipment, knew that a rope created a risk that a knot could fail or the rope could break, and knew that experienced climbers would not climb without the safety lanyard. Id. From this evidence, it was reasonably foreseeable that a climber would be injured using a rope instead of a lanyard. Id. Therefore, the appellate court erred in finding as a matter of law that the slipping of Plaintiff's knot was the sole proximate cause of his injuries. Id.

The appellate court also erred in finding that Plaintiff's claim was barred by S.C. Code section 15-73-20 ("If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."). Id., 443 S.E.2d at 493-94. Plaintiff attempted to use the product in the manner intended by Defendant, and therefore whether his use was unreasonable was a question of fact for the jury. Id. at 494, 443 S.E.2d at 394-95.

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Drilling Down: Proving the Duty to Warn

By Brian A. Comer

Although I have never made it official, I have been doing a series of posts on warnings as a result of some research I have done lately for a case. It started with an analytical framework for warnings, followed by some commentary on the duty to warn and the "obvious risk" posed by cell phone use while driving, and then a more detailed post on when the duty to warn arises.

As stated in a prior post, Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971) supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43.

The question that follows is: how does a plaintiff prove this duty in the context of a manufacturer seller? A plaintiff must produce evidence from which a jury can conclude that a manufacturer or seller has reason to believe that a warning is necessary. Livingston v. Noland Corp., 293 S.C. 521, 525, 362 S.E.2d 16, 18-19 (1987) (holding that supplier and manufacturer had no way of knowing and no reason to foresee that failed refrigerator compressors would be unreasonably dangerous unless a warning was provided). Gardner also addressed this issue by discussing the means by which to determine foreseeability and whether a duty to warn arises. As stated by the court:

Where the issue is one of foreseeability, evidence of what has actually been experienced in the same or comparable situations constitutes proof of the greatest probative value. The only other way foreseeability can be proved is by expert testimony and in most instances it, too, will depend upon actual experience developed by laboratory or everyday experience.

Id. at 244. In this context, the court in Gardner determined that depositions and complaint letters of other product users who had similar experiences with the hair rollers at issue were admissible to show the manufacturer’s knowledge of the problem. Id. The court also believed that certain expert testimony should have been admitted to show the nature of the danger. Id.

Gardner's analysis correlates with my own experience in warnings cases concerning the method of proof. There are multiple sources of information that should be reviewed to determine if there is an actual or potential risk with a product, creating a duty to warn:

• Interviewing manufacturer and/or seller representatives about the product and whether there was any knowledge of an actual or foreseeable risk, and when the individuals had this knowledge. From an efficiency standpoint, this is usually my first source (if I represent the manufacturer/seller).
• After interviews, reviewing internal company documents relating to prior incidents involving the product and the risk at issue, adverse event reports (in drug/medical device cases), testing of the product (and their results), memoranda and emails concerning any risks with the product, and other documents. This is typically where a plaintiff is trying to find a "smoking gun" where the manufacturer or seller indicates knowledge of a potential issue.
• Review of non-company documents and information, such as scientific literature concerning the product, case reports in literature of the potential risk at issue, trade literature, information from any regulatory bodies (FDA, CPSC, etc.), recall information, etc. Evaluating this information is important because even if there was not anything in the company documents or interviews to indicate knowledge of a potential risk, these sources can inform as to whether the company should have known of a potential risk. Although it may vary depending on the jurisdiction, companies frequently are held to the standard of being an "expert," meaning they are expected to know about the most current literature and findings concerning their product.
• Interviews and consultation with industry and scientific experts. These individuals, in my experience, usually provide their opinion -- putting together all of the above information -- as to whether there was a duty to warn.

These sources only focus on the duty to warn, and not the adequacy of the warning (which involves other sources of information that should be reviewed, and other kinds experts, including regulatory and human factors experts). Furthermore, the above list is certainly not exhaustive by any means. However, whether there was a duty to warn can be a simple issue (e.g., warning that a surface is hot) or a contentious one (whether a pharmaceutical manufacturer should have warned of a potential, disputed risk in its labeling), and all this information is important with regard to proving any duty to warn.

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Okay, one more try.

So my test post revealed that my feedburner function is not working. So I "resynced" it (whatever that means) and hopefully it will now. Unfortunately, it requires yet another test post.

Test Post and Feedback

Sorry for this, but I need to do a test post, as I think that my subscriber function may not be sending out updates.

While I'm at it, if anyone has suggestions for the site, please comment. Always looking for ways to improve it.

State Settlement with Pfizer

I missed this when it ran, but stumbled across it when looking for recent verdicts, settlements, etc. The below ran in the Post and Courier on April 3, 2010, and while it lasts you can find it here. I have cut and pasted the article below.

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Pfizer, S.C. settle dispute over off-label promotions

By MEG KINNARD • Associated Press • April 3, 2010

COLUMBIA, S.C. — South Carolina is to receive $11 million under an agreement with Pfizer Inc. over the company's disputed sales tactics for certain drugs, double the amount the state said Friday it would have gotten under a multistate deal struck last year.

Under the deal finalized Thursday and confirmed by Pfizer, the New York-based pharmaceutical giant also is to give South Carolina more than $1.5 million in medications for use in its free clinics.

In September, federal prosecutors hit Pfizer with $2.3 billion in fines over what they called the improper promotion of drugs -- including painkiller Bextra and the schizophrenia medicine Geodon -- that included plying doctors with free golf, massages, and resort junkets.

Use of drugs for so-called "off-label" medical conditions is not uncommon, but manufacturers are prohibited from marketing drugs for uses that have not been approved by the Food and Drug Administration. Prosecutors said junkets and other company-paid perks were designed to promote the drugs to doctors for unapproved uses and dosages, backed by false and misleading claims about safety and effectiveness.

Bextra, for instance, was approved for arthritis, but prosecutors had said Pfizer promoted it for acute pain, and in dosages above the approved maximum. In 2005, Bextra was pulled from the U.S. market amid mounting evidence it raised the risk of heart attack, stroke and death.

In addition to a $1.2 billion criminal fine, the company also agreed to pay $1 billion in civil penalties, the Justice Department said in September. Of that amount, $331 million was to be split among 49 states and the District of Columbia.

South Carolina Attorney General Henry McMaster -- who is seeking his state's Republican nomination for governor -- sparked controversy when that deal was announced, saying he had opted out of the multistate agreement to pursue his own case against Pfizer to seek a better deal for the state.

That gamble seems to have paid off.

McMaster spokesman Mark Plowden says the state would have gotten about $5.5 million if it had participated in the multistate deal, according to a formula set by the court system.

In a statement, Pfizer acknowledged no wrongdoing and said it was pleased with the deal.

Under the individual agreement, South Carolina is getting a combined $12.68 million in money and prescription drugs. Plowden said the deal has been a year in the making.

It will take South Carolina about a month to receive the money, which Plowden said will go to the state's Medicaid coffers and state health care plan.

Happy Easter!

Happy Easter to any followers of the South Carolina Products Liability Law Blog!

I will be attending the DRI Products Liability Committee meeting this week in Las Vegas, Nevada (details here). I am flying in on Tuesday, staying for all of the conference, and staying a couple of extra days to see and enjoy Las Vegas with my wife, who is joining me.

If anyone else will be attending, please let me know! I would love to have the opportunity to meet you.

Drilling Down: The Duty to Warn

By Brian A. Comer

I have been doing some research on South Carolina warnings law lately, and now is as good a time as any to provide some further explanation on this area of products liability law. I always enjoy cases involving warnings, primarily because I never cease to be amazed at how different sides of the bar can have totally divergent views on whether a specific warning is "adequate."

No South Carolina state court (that I have found) explicitly sets forth when the duty to warn arises in a products liability case. However, in Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971), the Fourth Circuit Court of Appeals provided extensive guidance on the duty to warn in an appeal of a South Carolina products liability action arising in diversity, and the South Carolina Supreme Court cited to Gardner’s rationale in its negligent failure to warn analysis in Livingston v. Noland Corp., 239 S.C. 521, 362 S.E.2d 16 (1987). Gardner supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43; Livingston, 293 S.C. at 525, 362 S.E.2d at 18.

Gardner involved the ignition of hair rollers when the water in which they were heating boiled out of the pot. Id. at 240-41. After putting the rollers on the stove to heat, the user fell asleep in the bathtub. Id. at 241. The resulting fire substantially destroyed the apartment building, and the building owner sued the hair roller manufacturer to recover his losses. Id. at 240. One of his theories for recovery was that the manufacturer’s warning about the flammability of the rollers was inadequate. Id. The warning at issue stated as follows: “Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe.” Id. at 241.

The district judge granted a directed verdict in favor of the manufacturer on grounds that the hair rollers were not “inherently dangerous.” Id. at 240. Therefore, the manufacturer had no duty to provide a more extensive warning than the one provided. Id. On appeal, the Fourth Circuit rejected the district judge’s focus on the inherent danger of the rollers as the determinative factor for the manufacturer’s duty to warn. Id. at 242. Instead, the court suggested that the duty to warn arises if a supplier and manufacturer “(a) . . . know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, [and] (b) they lack reason to believe that the user will realize the potential danger. . . . “ Id. at 242 (citing Restatement (Second) of Torts §§ 388 and 295 (1965)). The court elaborated that the duty is determined through an analysis of foreseeability, and it cited to Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) as the applicable South Carolina law. Gardner, 448 F.2d at 242-43. The court quoted from Mickle as follows:

Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold: thus he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risk of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured.

Id. (quoting Mickle, 252 S.C. at 233, 166 S.E.2d at 187).

Using this framework, the court determined that a jury could conclude that a momentary interruption that results in water boiling away is so common that the manufacturer should have foreseen that it could occur while its product was being used. Id. at 243. The court also concluded that a jury could find that the manufacturer knew or should have known that the heat to which the product would be subjected during those occasions could exceed the normal ignition point of the hair roller’s contents. Id. Therefore, the court concluded that the jury could have found that there was a duty to warn of these risks. Id.

I will continue to post on when the duty to warn arises as I continue to research warnings law. However, from my research to date, no other case summarizes when the duty arises better than Gardner.

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Case Brief: Watson v. Ford Motor Co.

By Brian A. Comer

UPDATE: The South Carolina Supreme Court has re-filed this opinion as of September 13, 2010, and the below brief was based on the first opinion, and not the re-filed one. Please see this post for more details and links to the current opinion. The new opinion upholds the reversal and deals with the same issues (expert testimony and admission of other incidents), but it also includes additional language concerning Ford's motion for judgment notwithstanding the verdict.

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Yesterday, the South Carolina Supreme Court reversed an $18 million jury verdict against Ford Motor Co. on grounds that the trial court erred in admitting certain expert testimony, as well as in admitting evidence of other incidents. The case can be found here . It provides some great guidance on South Carolina's law concerning the admissibility of expert testimony and the responsibility of the trial court to act as a "gatekeeper" for same. It also sets forth certain factors that can be applied in the products liability context to determine whether evidence of other incidents should be admitted.

FACTUAL BACKGROUND: In December of 1999, Plaintiff Sonya Watson ("Watson") was driving a 1995 Ford Explorer with three other passengers, including Patricia Carter ("Carter"). After entering the interstate, Watson lost control of the vehicle, and it rolled for times. Watson and Carter were ejected from the vehicle. Watson was rendered a quadriplegic, and Carter died.

PROCEDURE: Plaintiffs filed a products liability lawsuit against Ford, D&D Motors, Inc. and TRW Vehicle Safety Systems, Inc., alleging that the cruise control system and seatbelts were defective and seeking actual and punitive damages. Plaintiffs' theory was that the Ford Explorer's cruise control system was defective because it allowed electromagnetic interference ("EMI") to affect it. Plaintiffs presented an electrical engineer, Dr. Antony Anderson, to support their theory. He testified that EMI can interfere with the speed component of a cruise control system and cause a vehicle to suddenly accelerate. He also testified that Ford could have used "twisted pair wiring" to prevent EMI so that the accident would not have occurred. Plaintiffs also presented the testimony of Bill Williams as an expert on "cruise control diagnosis," as well as evidence from four witnesses who testified about other incidents in which their Ford Explorers suddenly accelerated. Ford presented its own cruise control expert, Karl Passeger, who testified that EMI signals have no effect on cruise control. Ford also presented evidence that the floor mats could have caused the acceleration, as they had on prior occasions. The jury awarded compensatory damages of $15 million to Watson and $3 million to Carter's Estate.

ISSUES: The South Carolina Supreme Court addressed three issues presented by Ford on appeal:

1. Did the trial court err in qualifying Plaintiffs' expert Bill Williams as an expert in cruise control systems?
2. Did the trial court err in allowing Dr. Anderson's expert testimony regarding EMI and alternative feasible design?
3. Did the trial court err in allowing evidence of other incidents of sudden acceleration in Explorers?

DISPOSITION: Reversed.

RULES AND OPINION: The Court reviewed South Carolina's law of admission of expert testimony, which is governed by South Carolina Rule of Evidence 702. The trial court must make three key preliminary findings before presenting the testimony to the jury:

First, the trial judge must find that the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury. Next, while the expert need not be a specialist in the particular branch of the field, the trial court must find that the proffered expert has indeed acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter. Finally, the trial court must evaluate the substance of the testimony and determine whether it is reliable.

(Citations omitted). The Court analyzed the three appellate issues in this context.

Issue Number 1: The Court found that the trial court erred in qualifying Mr. Williams as an expert on cruise control diagnosis. A trial court's inquiry into the qualifications of an expert should be "broad in scope." Although Williams testified that he had worked in the automotive industry as a trainer, consultant, software developer, and a writer, his qualifications were lacking in other respects.

• He had no professional experience working on cruise control systems prior to the litigation.
• He had not conducted any comparison of the Explorer's cruise control system to any other system.
• He had never taught or published papers on cruise control systems.
• "Williams had no knowledge, skill, experience, training or education specifically related to cruise control systems." Instead, he "taught [him]self" about the Explorer's system prior to trial.

The Court found that the trial court failed to properly evaluate Williams' qualifications specific to cruise control systems and erred in qualifying him as a cruise control expert. However, Williams' testimony was primarily descriptive of the cruise control system, its scope was controlled by the trial court, and he was subject to extensive cross examination to impeach his credibility. Therefore, the error did not prejudice Ford.

Issue Number 2: The Court found that the trial court abused its discretion in admitting Dr. Anderson's testimony. First, the Court rejected the notion that technical evidence is not subject to the same reliability requirements as scientific evidence. "The trial court must examine the substance of the testimony to determine if it is reliable, regardless of whether the expert evidence is scientific, technical, or other specialized knowledge."

Next, the Court examined Dr. Anderson's qualifications and the reliability of his testimony (applying the reliability factors articulated in State v. Council, 335 S.C. 1, 19, 515 S.E.2d 515, 517 (1999)). The Court found that with regard to his opinions concerning alternative feasible design, Dr. Anderson failed to meet Rule 702's rule that the witness be qualified in the particular area of expertise. Dr. Anderson's experience was in working with large generators with different electrical wiring systems and voltage levels. He had no experience in the automotive industry, never studied a cruise control system, and never designed any component of such a system. Plaintiffs also failed to illustrate that his testimony that twisted pair wiring would have cured the EMI defect was reliable, or how it could be incorporated into a cruise control system. There was also a lack of evidence to support the economic feasibility of this alternative.

The Court also found that Dr. Anderson's testimony about EMI and its effect on the cruise control system was unreliable. He admitted that his theory had not been peer-reviewed, he had never published papers on it, and he had never tested it. He also could not pinpoint where the EMI that caused the malfunction originated, or the system in the Explorer that it affected. His only document to support his theory was a 1975 National Highway Safety Administration report, which had been superseded in 1989. The Court focused on the fact that Dr. Anderson had never published his theory, never tested it, and that his theory had been rejected in the scientific community. Admission of Dr. Anderson's testimony was prejudicial error because it was the only evidence presented by Plaintiffs to support their theory of defect.

Issue Number 3: The Court found that the trial court's admission of evidence of other incidents of sudden acceleration was prejudicial error. Evidence of similar incidents is admissible where there is some special relation between the accidents tending to prove or disprove some fact in dispute. (Citing Whaley v. CSX Transp., Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005)). The Court also cited to a District of North Carolina case, Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D. N.C. 1995), for factors to consider regarding admissibility of similar incidents to prove defect, including (1) similarity of the products, (2) similarity of defects, (3) causation related to defect in the other incidents, and (4) exclusion of other reasonably secondary explanations for the cause of the other incidents. Plaintiffs failed to show that the incidents were substantially similar and failed to establish a special relation between the other incidents and Plaintiffs' accident. The products were not similar because the other incidents involved Explorers made in different years and of a different model type. Plaintiffs failed to show a similarity of causation between the incidents, and they failed to excluse reasonable explanations for the cause in the other incidents. Therefore, this evidence was irrelevant. The admission of this evidence was highly prejudicial, especially in light of the fact that Plaintiffs' counsel highlighted it in his closing argument and "thereby possibly induced the jury to speculate as to other causes of the accident not supported by any evidence."

CONCURRING OPINION: Justice Pleicones wrote the concurring opinion for Justices Waller, Beatty, Kittredge, and Pleicones. The concurring opinion focuses primarily on the framework for analyzing the admissibility of expert testimony. It disagrees with the first inquiry in the framework articulated in the majority opinion, "Is the subject matter of the testimony beyond the knowledge of a layperson, thus requiring and expert to explain it?" Instead, the concurring opinion cites to the framework cited in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999), which is (1) is the underlying science reliable?; (2) is the expert qualified?; and (3) would the evidence assist the trier of fact to understand the evidence or to determine a fact in issue? The concurring opinion also disagreed that the model and manufacture year of the Explorers in the other incidents were meaningful distinctions for purposes of excluding this evidence.

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