Thursday, October 27, 2011

Do I Have to Have an Expert to Bring a Products Liability Action in South Carolina?

As an update to this post, please see this post and also this post.  In Graves v. CAS Medical Systems, Inc., the South Carolina Supreme Court provided further guidance on the role of expert testimony in a South Carolina products liability case.  As explained more fully in the posts linked above, the court basically took a case-by-case approach to expert testimony in design defect cases and seemed to back off of the language in Watson v. Ford Motor Co. and 5-Star, Inc. v. Ford Motor Co., which are discussed below.


Recently, I was spinning my wheels on the necessity of expert testimony in a products liability case and whether there is a case -- on point -- in South Carolina that requires it.  As context, I have never known a products liability case to not include expert testimony.  Furthermore, I have seen plenty of parties get summary judgment when they successfully excluded the opposing party's expert.  The reason I was spinning my wheels about it is because sometimes these somewhat "obvious" points of law do not have a case that actually points out the obvious.  (A good example is that it was not until the Branham v. Ford Motor Co. 390 S.C. 203, 701 S.E.2d 5 (2010) case that our state appellate court definitively set forth the necessity of proof of feasible alternative design in a design defect case.  There was state court case law suggesting it, and our federal district court had indicated that state law would require it.  Furthermore, in my experience, all plaintiffs presented such evidence.  However, there was nothing on point by our state appellate court saying you had to have it in state court.  That finally changed with Branham, at least for a design defect case.)

So, I decided to look this point up.  Generally, the admission of expert testimony is governed by South Carolina Rule of Evidence 702, which sets forth as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
This would clearly appear to apply to a products liability case.  After all, if a plaintiff is arguing that a product has a design or manufacturing defect, then articulating the nature of the defect would seem to fall outside the realm of ordinary lay knowledge. 

Two fairly recent cases affirmed my hunch.  I recently briefed 5-Star, Inc. v. Ford Motor Co.,  2011 WL 3568546 (Aug. 10, 2011 S.C. Ct. App.) and forgot that it addressed this issue.  5-Star involved allegations that a negligently designed speed control deactivation switch in a Ford truck caused a warehouse fire.  The South Carolina Court of Appeals set forth the following with regard to the necessity of expert testimony in a products liability case:
In order to gain more than this limited understanding of the operation of the switch, and in particular, in order to understand whether 5 Star met its burden of proving that the design of the switch was negligent in 1996, a jury, the trial court, and this court on appeal would need the benefit of expertise in several subjects that are not included in this record. In other words, this is precisely the type of “design defect claim” our supreme court recently stated “necessarily involve[s] sophisticated issues of engineering, technical science, and other complex concepts that are quintessentially beyond the ken of a lay person.” Watson, 389 S.C. at 444, 699 S.E.2d at 174. When the plaintiff in a product liability case bears the burden of proof as to any issue within a subject matter beyond the common knowledge and understanding of lay jurors, that plaintiff must present expert witness testimony in order to meet its burden. 389 S.C. at 445, 699 S.E.2d at 175 (“Expert testimony ... is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge.”).  Because 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.
Id. at *4 (emphasis added). 

The "Watson" case cited by the court is Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010)Watson involved a vehicle rollover case where the plaintiff alleged the cruise control system and seatbelts were defective.  The court in Watson had this to say about expert testimony in a products liability case:
Expert testimony may be used to help the jury to determine a fact in issue based on the expert's specialized knowledge, experience, or skill and is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge. Stated differently, expert evidence is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge. Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge or may base his opinion on information made available before the hearing so long as it is the type of information that is reasonably relied upon in the field to make opinions. See Rule 703, SCRE. On the other hand, a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training. See Rules 602 and 701, SCRE.
389 S.C. at 445-46, 699 S.E.2d at 175 (empasis added).  The court applied this law to exclude certain expert testimony and reverse the jury's verdict against Ford in the trial court.

So, with all of that, I am satisfied.  Although it is not as easy as finding a case that says "all products liability cases require the testimony of an expert," the guidance provided in 5-Star and Watson certainly suggests that products liability cases involve technical and specialized subject matter that fall outside the realm of ordinary laypersons.  For that reason, you need an expert.

I welcome any comments if your experience has been different either in South Carolina or elsewhere.

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