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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