Holiday Case Brief and Verdict Survey: Gasque v. Heublein, Inc.

I hope you have enjoyed the holidays and are ready for the new year.  This has been one of my busiest times around the holidays in awhile, but I could not miss the opportunity to do a holiday season "food" post.  Last year, I tried to do a comprehensive series about South Carolina's products liability law in the context of food cases.  However, I missed one of the more interesting cases, and I thought it would be blogworthy at this time of year (especially in light of the amount of wine and champagne that will be consumed this evening).  Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.E.2d 556 (Ct. App. 1984) involves a cork that prematurely ejected and caused injury to a plaintiff's eye.  An Horry County jury returned a verdict for $750,000, and the South Carolina Court of Appeals affirmed the verdict.

FACTUAL BACKGROUND: Plaintiff sustained permanent loss of vision in his left eye when he was struck by the stopper and cork assembly of a bottle of Jacques Bonet Cold Duck sparkling wine.    281 S.C. at 281, 315 S.E.2d at 558.  The stopper allegedly ejected prematurely when Plaintiff's friend was twisting the wire retaining hood on the cork.  Id.

PROCEDURE: Plaintiff brought suit against the manufacturer-bottlers ("Defendants") of the sparkling wine, as well as three other defendants in the chain of distribution.  281 S.C. at 281, 315 S.E.2d at 558.  Plaintiff asserted causes of action for negligence, warranty, and strict liability, and he sought actual and punitive damages.  Id.  The case was submitted to the jury on the theories of negligence and strict liability.  Id.  The jury returned a general verdict for $750,000 in actual damages against Defendants.  Id.   

ISSUES: There were three issues on appeal: (1) whether the trial court erred in submitting the issues of negligent (a) design, (b) manufacture, (c) inspection, and (d) failure to warn; (2) whether the trial court erred in admitting into evidence a filmed experiment conducted by Plaintiff's expert; and (3) whether the trial court erred in failing to grant Defendants' motion for a new trial absolute on grounds that the verdict was actuated by passion, prejudice and caprice.  281 S.C. at 281, 315 S.E.2d at 558. 

DISPOSITION: The South Carolina Court of Appeals affirmed the trial court on all three issues.

OPINION: The appellate court addressed each of the issues in the order in which they were raised, as set forth below.

(1) Submission of Negligence Theories

With regard to negligent design, Plaintiff presented reports of studies commissioned by one of the Defendants concerning premature ejection of champagne stoppers.  281 S.C. at 282, 315 S.E.2d at 559.  The reports identified the problem of premature ejection and suggested design alternatives to correct it.  Id. at 282-83, 315 S.E.2d at 559.  Defendants' Quality Control Director also testified that before Defendants' switched from wood stoppers to polyethylene stoppers, they had no reports of injuries.  Id.  One of the reports also discussed the various problems with polyethylene stoppers versus wood stoppers.  Id.  In short, the evidence showed Defendants were aware of the problem of premature ejection, knew about feasible alternative designs, were aware that wood corks were safer, and elected to use an undrilled and uncoated polyethylene stopper to retain the festive "pop" of the cork.  Id. at 283, 315 S.E.2d at 559.  Plaintiff also presented expert testimony in support of his theory.  Id. at 284, 315 S.E.2d at 559.  The evidence was sufficient to submit the issue of negligent design to the jury.

With regard to negligent manufacture, Plaintiff presented the cork at issue and had his expert testify there was a groove on it that was distinguishable from other stoppers.  Id. at 284, 315 S.E.2d at 560.  Plaintiff's expert testified the groove was caused by improper attachment of the wire retainer to the stopper during manufacture, and this manufacturing defect contributed to premature ejection.  Id.  Based on this evidence, the court upheld submission of negligent manufacture to the jury.  Id.

With regard to negligent inspection, the court concluded that the testimony of Defendants' Quality Control Director supported submission of this issue to the jury.  Id. at 285, 315 S.E.2d at 560.  The director testified a pressure check was performed on only one out of every 30,000 to 40,000 bottles, and quality control personnel had only one or two seconds to ascertain whether or not the wire hood was properly attached to the stopper.  Id.

With regard to negligent failure to warn, the court concluded that the warning at issue was approximately 1/8 the size of the print used to advertise the product's name, and it did not mention premature ejection (just that the contents were under high pressure and that the bottle should be pointed away).  Id.  The court held the language of the warning, its placement, and print size created a jury question as to its adequacy.  Id.  The issue of negligent failure to wan was properly submitted to the jury.  Id.

(2) Admission Into Evidence of Filmed Experiment

To be admissible at trial, an experiment or test must have been made under conditions and circumstances substantially similar to those prevailing at the time of the occurrence involved in the controversy.  Id. at 286, 315 S.E.2d at 560 (citing Weaks v. South Carolina State Highway Dep't, 250 S.C. 535, 159 S.E.2d 234 (1968)).  Plaintiff's expert introduced a filmed experiment conducted by his expert where a stopper in the product at issue spontaneously ejected when the expert began twisting the wire retaining hood.  Id.  The trial judge allowed the jury to view the experiment.  Id.  Defendants argued the admission was error because the experiment utilized champagne (instead of sparkling wine), involved a different size bottle, and had different temperatures.  Id. at 286, 315 S.E.2d 560-61.  Plaintiff's expert testified the properties the experimental bottle were substantially the same.  Id., 315 S.E.2d at 561. 

The court noted that admission of evidence is a matter for the trial judge's discretion and will not be disturbed absent abuse of discretion.  Id.  The court also noted that Defendants vigorously cross examined the expert on the distinctions between the experiment and and facts of the case.  Id. at 287, 315 S.E.2d at 561.  The court held the conditions of the filmed experiment were substantially similar to those existing at the time of injury.  Id.  However, even if they were not, this issue did not warrant reversal because the experiment was cumulative of other evidence introduced by Plaintiff (including testimony of the friend who opened the bottle, experts, and the information contained in Defendants' reports about premature ejection).  Id. (citing Beasley v. Kerr-McGee Chem. Corp., 273 S.C. 523, 257 S.E.2d 726 (1979)).

(3) Excessiveness of Verdict

The court noted it has limited power to interfere with verdict amounts, which are left almost entirely to the judge and jury.  Id. at 287, 315 S.E.2d at 561 (citing Charles v. Texas Co., 199 S.C. 156, 18 S.E.2d 719, 729 (1942)).  The court cannot reduce a verdict, and it will only strike a verdict down completely if the amount is so shockingly excessive as to indicate it is the result of passion, caprice, and prejudice.  Id.  In view of the severity and permanency of Plaintiff's injury, the court did not find the verdict of $750,000 to be excessive.  Id. at 288, 315 S.E.2d at 562.  In short, there was substantial evidence concerning Plaintiff's pain, multiple surgeries, impact on vision, and change in lifestyle.  Id. at 288-89, 315 S.E.2d at 562.  Based on the evidence, the court did not find the verdict to be excessive.  It also reviewed verdicts for loss of vision cases elsewhere that were also similar to the jury's verdict.  Id.

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Catching Up and Latest Publication

Apologies are in order from the South Carolina Products Liability Law Blog.  I was able to do a flurry of posts back in November, which helped me catch up on quite a bit of blogging.  However, with the holiday season and with many of my cases rearing their heads in December, it has been difficult to post lately.  (The image posted with this blog is one of the images you find when you do a google image search of "tired" and "Santa").

So...what's new?  The webinar for Primerus went very well, as we had about thirty people who virtually "attended" and followed the presentation.  I am sure the Primerus Products Liability Executive Committee will plan some similar presentations in 2013, so stay tuned on that front.  You may also recall my fortieth birthday was the same day as the presentation.  Luckily, I managed to get through the entirety of my portion without having an episode of memory loss.  (That was a joke...you can laugh). 

In addition, my colleague Kristian Cross and I authored an article entitled "Managing Litigation Risk: Practice Pointers From 'Soup to Nuts'" in the most recent edition of the Association of Corporate Counsel (South Carolina Chapter) e-newsletter.  You can find it at this link. 

Finally, one of the things I regret about being so busy this December is that I have not been able to do a food-centered holiday series.  (You can see prior posts in December 2010 and 2011 here and here).  However, I hope to get one or two up the latter part of this week, or maybe headed into the New Year.  Be sure to check back.

I hope everyone has a Merry Christmas and Happy New Year!

Happy Thanksgiving from the South Carolina Products Liability Law Blog!

Happy Thanksgiving from the South Carolina Products Liability Law Blog!  Thanksgiving is my favorite holiday because I like to cook, I like to eat, and I really do not like to shop.  Therefore, it is right up my alley.

I have a few traditions for each Thanksgiving.  I enjoy a great meal, usually take a strong nap, watch a bit of whatever basketball or football games are on during the day, and I ALWAYS find time to watch Planes, Trains, and Automobiles.  Thanksgiving movies do not get the hype that Christmas movies do, but this one is a classic.  If you have never seen it, the nutshell is that a marketing executive's travel plans get derailed and he has to find alternative methods to get home for Thanksgiving.  Along, the way, he meets Dell Griffith...one of the great, annoying, loveable characters in movie history.  Dell also has a history, which Steve Martin's character does not learn about until the end.  It is a hysterical movie, and also pretty heart-warming.

Anyway, trailer above and funny scene below.  Happy Thanksgiving to everyone.

How I Fry a Turkey

Yesterday, I mentioned that I wrote a summary for a friend awhile back of how I fry a turkey.  I'm not saying this is the best way to fry a turkey, but this is how we roll at the South Carolina Products Liability Law Blog when it comes to turkey frying.

I have also learned some lessons about how to save some time on the clean-up, which I share below.  Fried turkey is crazy delicious, but be careful. 

TIPS BASED ON MY EXPERIENCE

PREPARATION:

First, I would not recommend a “Butterball” turkey for frying.  I’m not sure what it is about them, but I don’t think they fry up very well (especially if you are injecting marinade). 

Makes sure the turkey is fully thawed.  Then, rinse the turkey thoroughly.  A good way to do this is to put the turkey in your fryer pot and fill the pot with water to rinse it.  Once the water fully covers the turkey, take the turkey out and note where the water level drops to, and mark it.  Now you know how much oil you need to put in the fryer pot for your turkey to be submerged.  (This is just a way to save oil; you can put in as much oil as you want, but it increases clean-up and also increases the risk of overflow, which is very dangerous).

Dry the turkey thoroughly.  If there is any water on it, it will pop when you put it in the oil.  Make sure it is good and dry.

You don’t have to do anything, as fried turkey is delicious without any “extras.”  However, I use fat-free Italian dressing as my injectable marinade.  I strain the herbs out first, and then I inject the marinade throughout the turkey.  I also coat the outside of the turkey all over with the marinade.  After this step, I coat the turkey heavily with Tony Chachere’s Cajun seasoning.  After this preparation, put the turkey in the refrigerator overnight.

FRYING:

Do the frying of the turkey on the grass somewhere.  There will be a little popping and grease residue that gets out of the pot, and if you are doing it on concrete, it will get on there.  This is not a big deal, as it will wear off.  However, it also makes it easy to track oil into the house, which never goes well with the wife.  For this reason, I do it in my backyard on the grass.  Also, do it away from your house.  Plenty of people have burned their houses down while frying a turkey, so you don’t want to be one of them.  You don't have to be 100 yards away from your home, but the point is not to do it in your garage.  A back patio away from the house or in the yard is fine.

I use peanut oil.  I can’t speak to other kinds of oils.  The cardinal rule about oil is do not mix poultry and seafood oil.  Your turkey will taste fishy.  You can fry anything else with turkey (hushpuppies, vegetables, etc.).  However, if you are using oil that you have used in the past for seafood frying, my experience is you taste the seafood in the turkey.  

Before I put the bird in the oil, I give it a fresh coat of Tony Chachere's.  Some of it usually drips off overnight, so I like a good coating before putting it in the oil.  

As for the actual cooking, in my experience, the key to frying a turkey is watching the temperature and watching the time.  Generally, I fry my turkey at 325 degrees for three-and-a-half minutes per pound.  That being said, before I put the turkey in the oil, I heat it to about 350 degrees.  The reason is that when I put the cold turkey in the oil, it usually decreases the temperature a fair amount.  Therefore, I have it a little hotter at the beginning so that (hopefully) the equilibrium is about 325 degrees when the turkey is lowered in the oil.

As I cook, I compensate with more or less time depending on my ability to keep the temperature at 325.  If it gets too hot, I turn the burner off until the temperature comes down, and I may reduce the fry time a bit to compensate.  If it gets too cold, I turn the burner up and may add some frying time depending on how long it takes to get it back to 325.  The point is to watch your gauge and try to keep it around that temperature, and compensate as needed.   

When the turkey is ready, lift it out and set it on some paper towels to strain off.  I usually just let it sit outside on the paper towels for about 15 minutes to cool and drip off oil.  Then I slide it off the lowering tool into a pan, take it inside, and pick it off the bone.

If I am frying multiple things over a few days, I don’t bother with cleaning the oil out of the pot.  I just put it in a safe place to cool and store until the next day.

CLEAN-UP AND STORAGE OF OIL

I've always read that oil is good for a year, and I've practiced that and never had any issues.  I find turkeys get better with every fry because the oil is good and seasoned.

When you are done frying for good and want to clean up, I've found the following to be the easiest way:

Let oil cool completely.  Get someone to help you, and have one person hold an oil funnel while the other pours the oil out of the pot and back into the original container.  Try to keep from spilling the oil outside the funnel, because if you do, it can get on the side of the container in which you are storing the oil.  If this happens, you now have to clean up the container (in addition to everything else you are cleaning).  Lowe's sells turkey frying peanut oil in big containers.  I would recommend trying to buy it in one of those big containers because it makes clean-up easier.  If you have four or five containers of oil (as opposed to one large container), then you have to keep refilling.  This creates more and more chance to get the oil on the outside of the containers and increase clean-up time.  If you have one big container, then you can just tip the pot and pour until it is all out.

Unless you have large "chunks" of residue, I wouldn't bother much with filtering the oil.  All the big stuff sinks to the bottom anyway, so when you get to the end you can decide if you want to keep what's at the bottom (i.e., the seasoning) or pour it off.  I usually pour everything back into my container.  It makes for better-seasoned oil. 

For cleaning the pot, get some Dawn and a good brillo pad or other steel wool.  I would do this outside…you won't score points with your better half if you do it inside. 

If you have hot water outside, that’s awesome.  If not, rinse the pot with some cold water to get the big residue out, and do a quick scrub.  This is to get the big stuff.  Pour out the cold water, and then fill the pot with water again and put it on your burner.  Use the burner to heat the water nice and warm/hot.  Then, I use the pot as a basin to clean my lowering tools, thermometer, scooper, etc.  Then, I scrub the interior and exterior of the pot and lid really good with the water in it, scrubbing hard.  Then I pour off that hot water, and probably repeat a last time with cold water. 

I’m not going to lie: the clean-up is a pain.  It usually takes me about 30 minutes to an hour.  You don't have to use hot water, but it seems to clean better and it takes longer just using cold water (i.e., you usually have to repeat it a couple more times).

(Because the clean-up takes a bit, I take advantage of every time I use my turkey fryer.  I will fry a turkey, a chicken, some hushpuppies, and maybe some other food to freeze). 

I store my oil inside until the next use.  I've kept it outside before in a storage room, and it got very cold.  I never had a spoilage issue from storage temperature, but it is probably a better practice to store it inside.  

I hope this is helpful.  It has always worked for me.

It's Turkey Frying Season

I'm an avid turkey fryer.  I don't know who first came up with the idea of taking one of the leanest, healthiest meats and dunking it in a vat of hot peanut oil, but I salute you sir. 

I also always enjoy seeing this Allstate commercial around Thanksgiving.  I like the matter-of-fact way that Dennis Haysbert (a/k/a President Dennis Palmer and Pedro Cerrano) talks about how plenty of people will burn their houses down when they try to fry a turkey.  My suspicion is that this most often occurs when someone uses too much oil, and it overflows when they lower the turkey into the pot (not that I have any experience with that...).  If you want to see a great illustration of the danger (and in the interest of providing equal time to State Farm), check out this video. 

Does this risk make a turkey fryer a defective and unreasonably dangerous as a product?  Of course not.  However, you do need to be careful.  WMFB news ran a nice story last week about turkey fryer fires (and other deep fryer claims).  Unfortunately, South Carolina ranks tenth in the country when in comes to deep fryer fires. 

So...when you fire up that oil this season, do be careful.  You can find a link to the article here, and the actual article is cut and pasted below.  (A few years back, I did a summary for a friend of how I fry a turkey.  If I can dig it up, I'll try to post it tomorrow).

SC ranks in top 10 for Thanksgiving cooking fires

Posted: Nov 14, 2012 12:07 PM EST Updated: Nov 15, 2012 4:30 AM EST

While turkey frying is very popular, it puts people at risk for fryer related fires and injuries.

SOUTH CAROLINA (WMBF) - Thanksgiving produces more cooking fires, according to insurance claims, than any other day of the year, and South Carolinians are starting many of them.

According to State Farm claims data, grease and cooking-related claims more than double on Thanksgiving Day compared to an average day in November. South Carolina ranked in the top 10 states for cooking fires according to claims made over the past five years.

While turkey frying is very popular, it puts people at risk for fryer related fires and injuries. In fact, fire departments across the U.S. respond to more than 1,000 fires each year where a deep fryer is involved.

The National Fire Protection Association reports that deep fryer fires cause more than $15 million in property damage each year, not to mention the burn dangers related to splattered grease.

According to State Farm, the top 10 states for grease and cooking-related claims on Thanksgiving Day for the past five years (2007-2011) are:

1. Texas
2. Illinois
3. New York
4. Ohio
5. Florida
6. California
7. Louisiana
8. Pennsylvania
9. Minnesota
10. South Carolina

Copyright 2012 WMBF News. All rights reserved.

Upcoming December 12 "Milestone" and Webinar

On December 12, 2012, two BIG things are happening.  First, yours truly turns the big 4-0.  Yes, the 40th birthday is at hand.  Funny...I don't feel any different than I did at age 20.  The big difference is the change in responsibility.  A good friend and former colleague of mine, Will Thomas, and I once had a conversation once about getting older.  I have often laughed at his explanation because of the way he phrased it and also the accuracy of his statement.  Paraphrased, he said it best:

I don't feel much different than when I was in college.  I'm still as ready to go out with friends as the next guy...stay up late...have fun.  However, regardless of what I do the night before, come 7 a.m., my son is waking up.  And from then on, it's "on" regardless of what I want to do or how I feel.

Very true statement.  I'm older, and (hopefully) a little wiser, but no matter what I want to do with my time, when the chirrens wake up and it is time to go to work, it's "on."

The other "big" thing happening December 12th is I am assisting with another Primerus webinar.  As I have stated in prior posts, my firm is a proud member of the International Society of Primerus Law Firms, and I serve on the Products Liability Executive Committee for the Primerus Defense Institute.  Our committee is presenting this webinar, which is entitled "Emerging Trends and Developments in Products Liability Law."  More specifically, it will provide an overview of what makes a manufacturer liable for a product in relation to a third-party component manufacturer, or even a plaintiff (i.e., by virtue of alteration or modification).  I will be joined by other Primerus lawyers John Brydon and Jeremy Cook as we speak on this topic.

These webinars are easy ways to get a nice overview of various practice areas in a short (one hour) timeframe.  It is also FREE (which is also a big selling point for this blogger).  Therefore, if you are a Primerus member or practice in-house, I invite you to join us.  Registration can be found here.

Verdict Survey: Dialysis Machine in Charleston County

Capsule Summary: A federal court in Charleston County returned a judgment of $50,398 for a seventy-nine-year-old male dialysis patient who sustained injuries when a renal machine failed during treatment.

Case Information: Kasie Blake v. DVA Renal Healthcare, C/A No. 9:06-1257

Date of Verdict: February 27, 2008

Venue: United States District Court for the District of South Carolina, Charleston Division

Judge: Solomon Blatt, Jr.

Factual Background: Kasie Blake ("Plaintiff") was a married, seventy-nine-year-old dialysis patient at DVA Renal Healthcare ("Defendant").  During one of his dialysis procedures, the machine stopped working.  Plaintiff alleged negligence against Defendant in that the machine was not effectively prepared to restart if it lost power.  His wife also alleged a claim for loss of consortium.  Defendant denied responsibility for the machine's failure and disputed Plaintiff's damages.

Experts: None listed.

Alleged Damages: Plaintiff alleged he developed First Use Syndrome which is an anaphylactic reaction to an artificial kidney.  Symptoms include sneezing, shortness of breath, wheezing, back and chest pain, and risk of death.  Plaintiff required six days of hospitalization and continued to complain of complications thereafter.

Disposition: The lawsuit resulted in a $50,398 judgment.  Although I assume this was a jury verdict, the report does not specify one way or the other (i.e., it only indicates a "judgment"). 

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Article Published on Equitable Indemnification and SCDTAA Follow-Up

Earlier this year, I submitted an article for publication in the South Carolina Defense Trial Attorneys Association's publication, The Defense Line.  The article surveyed equitable (non-contractual) indemnification law in South Carolina and the products liability cases in which it has been applied.  The article has been published in the Fall 2012 edition of The Defense Line, and you can find a copy of it here. 

When I write an article, I try to be pretty exhaustive in terms of reviewing every case that has dealt with a particular issue.  This article is no exception.  I tried to find every South Carolina products case dealing with equitable indemnification when I wrote it, and hopefully it serves as a useful resource for understanding this area of South Carolina law.

In addition, I just returned from speaking at the SCDTAA Annual Meeting in Kiawah (previously blogged about here).  My 45 minute speech generally provided an update on everything that has happened in South Carolina in 2012 with regard to products liability cases (significant opinions, legislative/regulatory developments, and general trends).  I appreciated the audience's attention and enjoyed this speaking opportunity.

I have enjoyed serving as a Co-Chair for the SCDTAA Products Liability Substantive Law Committee for the past two years.  It is a great committee and provides many opportunities for networking, publishing and speaking.  If you are a member of SCDTAA and have any interest in becoming involved, please let me know.  Although I expect to rotate off as Co-Chair, I certainly intend to remain involved.

Speaking at SCDTAA Annual Meeting

This week, I will be speaking at the Products Liability Substantive Law Committee breakout session during the South Carolina Defense Trial Attorneys Association ("SCDTAA") Annual Meeting.  The meeting is being held at The Sanctuary at Kiawah Island, and it begins on Thursday and wraps up on Sunday.  I am sure it will be an excellent meeting.

Unfortunately, I am only coming for the day on Friday for our breakout session, which is scheduled from 10:15 a.m. to 11:00 a.m.  I plan to do a general update on South Carolina product liability developments in 2012, including a survey of significant cases and overall trends over the last few years.

If you will be attending this meeting, I invite you to our break out session and hope to meet you.

Verdict Survey: Exploding Gun in Florence County

Capsule Summary: On May 1, 2004, a Florence county jury returned a Plaintiff’s verdict in a case involving explosion of a gun, which caused loss of three fingers on Plaintiff’s right hand, diminished vision, and bilateral hearing loss. 

Case Information: Matthews v. Olin Corporation, Case No. 01-CP-21-1729

Date of Verdict: May 1, 2004

Venue: Florence County Court of Common Pleas

Judge: James E. Brogdon, Jr.

Factual Background: Plaintiff was a seventy-year-old male who was married and a retired steel worker.  He went to a sporting goods store to purchase black powder for his black powder muzzle rifle.  The retailer recommended a new smokeless ball powder, which was manufactured Olin Corporation (“Defendant”).  Plaintiff purchased the smokeless ball powder and took it home to use it.  He tried twice to fire his gun, but was unsuccessful.  He returned to the retail store and was instructed to try and fire the gun one more time.  When he did, the gun exploded.

Plaintiff sued the retailer, distributor, and the manufacturer in a product liability case.  He alleged the label on the powder was misleading and the warning label was inadequate.  He claimed the label failed to properly warn of the hazards of substituting smokeless propellants for black powders.  He also alleged the warning was unclear and inconspicuous, and no warning was give with regard to the danger of using the product in a ball powder muzzle loading rifle.  He claimed Defendant was negligent in failing to provide sufficient information to distributors or retailers on the danger of using the product in the place of black powder. 

Defendant claimed the label was adequate and warned against substituting powders.  Defendant also argued the Plaintiff failed to read the warning and loaded his rifle with a double charge.  Defendant generally argued Plaintiff's misuse of the product caused the explosion. 

Plaintiff admitted he had not entirely read the label and conceded it said “Do not mix powders, do not substitute powders.”  However, he argued use of the powder was inferred by the title of “ball powder,” and there was no specific warning against using smokeless powder in a black powder muzzle rifle.  He also presented competitor warning labels displaying a warning against use of smokeless powders in black powder rifles. 

Experts: Plaintiff retained Richard Moll of Madison, Wisconsin as an expert on product safety and Dean Harris of Columbia, South Carolina as an engineer/rifle expert. 

Alleged Damages: Plaintiff lost three fingers and a substantial amount of blood.  He developed a central retinal vein occlusion from the blood loss, which caused partial vision and partial hearing loss.  He also claimed medical expenses of  $50,000.

Disposition: Defendant assumed representation of the distributor from the onset of the case.  The retailer settled with Plaintiff prior to trial for $187,500, including loss of consortium.  The jury returned a verdict of $150,000 for strict liability and $160,000 for negligence ($150,000 in compensatory damages and $10,000 in punitive damages) against Defendant.  The jury found Plaintiff to be fifty percent at fault on the negligence claim.  Therefore, Plaintiff elected to recover on the strict liability claim.  A partial credit to the manufacturer for the previous settlement would have reduced the verdict to approximately $56,500.  The parties negotiated a post-verdict settlement for $95,000, which included Plaintiff’s wife’s consortium claim. 

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More on Graves v. CAS Medical Systems, Inc.

Last week I did a case brief of the South Carolina Supreme Court's decision in Graves v. CAS Medical Systems, Inc. (see the brief here and the full decision here).  This case deserves more blog time because it has some significance to trends in South Carolina's products liability law.  There is also some language I do not care for very much, but this is just my personal opinion.  Set forth below are observations of Graves in order of their significance (to this blogger).

(1) The court backed off of prior decisions suggesting expert testimony is required for a design defect case.  As you may recall from this post, prior South Carolina appellate court decisions suggested a design defect theory requires use of expert testimony to sustain the burden of proof.  In Graves, the court backed off this position.  "In some design defect cases, expert testimony is required to make this showing [of defect] because the claims are to complex to be within the ken of the ordinary lay juror."  (Emphasis added).  The court provided extensive string citation to examples of complex cases requiring expert testimony.  Then, it dropped the bombshell: "Whether expert testimony is required is a question of law."  The court found Plaintiffs' claim to involve complex issues of computer science; accordingly, Plaintiffs' claim required direct evidence of defect in the form of expert testimony.  Be that as it may, this language by the court leaves open the possibility that a design defect claim may not require expert testimony.  This is contrary to the impression given by the appellate courts in Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010) and 5-Star, Inc. v. Ford Motor Co., 395 S.C. 392, 718 S.E.2d 220 (2011).

(2) Use of circumstantial evidence to prove design defect is alive and well.  Defendant argued that without expert testimony (which the court had excluded), Plaintiff had no direct evidence of defect.  Taking it one step further, Defendant argued the court foreclosed use of circumstantial evidence in a design defect case in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010).  To borrow an expression from Lee Corso, "Not so fast my friend!"  The court said any issue can be proven by circumstantial evidence, and it is just as good as direct evidence if it is equally as convincing to the trier of fact.  The court also pointed out that it allowed the plaintiff in Branham to use other similar incidents, "which is classic circumstantial proof."  However, the court did not have to get into analyzing if there was sufficient circumstantial evidence in Graves because it determined the claim involved complex issues that required expert testimony as a matter of law (see number 1 above).

(3) Okay, I get it...but I don't like it.  So basically, the court is now saying it is going to take a case-by-case approach to the necessity of expert testimony in design defect cases.  Furthermore, if the case is not very complex and does not require expert testimony, then convincing circumstantial evidence may be offered as proof.  I have two problems with this approach. 

• First, virtually every product's design is beyond the ordinary knowledge of a layperson.  For example, I understand the concept of paint.  You mix some chemicals and pigments, and voila...you have paint.  However, is it really that simple?  I recently had a plaintiff try to use circumstantial evidence that a paint job's allegedly improper appearance supported a design defect claim.  My argument was that although the paint may not appear correctly, he had to prove the design of the paint was defective.  If the painter mixed it incorrectly, that is not a design defect.  If the manufacturer released a manufacturing lot with to much solvent in it, that is not a design defect.  As I sit here, it is difficult for me to come up with an example of a product where its design is within the common knowledge of a layperson.  My coffee cup is pretty simple, but I could not tell you why the manufacturer chose its composition, dimensions, etc.  I also could not tell you how any changes to any aspect of the design of the cup may affect the manufacturer's ability to produce the cup...which brings me to my second point...
• I could not tell you a reasonable, feasible, alternative way to make my coffee cup.  This is a big problem with leaving the door open to use of layperson testimony or circumstantial evidence in a design defect claim.  In Branham, the court stated a design defect claim requires proof of reasonable alternative design.  Branham, 390 S.C. at 225, 701 S.E.2d at 16-17.  If it is possible for a plaintiff to prove a design defect claim by circumstantial evidence (theoretically), does that mean a plaintiff can also prove alternative design by layperson testimony or circumstantial evidence?  In theory, are we going to allow Joe Sixpack to opine that a tighter fitting coffee lid is a reasonable, feasible design when he has no idea about the manufacturer's ability to produce the cup for a profit with his layperson-approved design?  I do not think so, but the court's case-by-case approach certainly leaves open this possibility.

(4) Introducing the "reasoning to the best inference" methodology for arriving at expert opinion(s).  From my own searches, I cannot see that this methodology has ever been addressed by a South Carolina court, and the court's language in Graves suggests same.  ("Although this is our first opportunity to assess the reliability of an opinion rendered using the reasoning to the best inference methodology . . . .").  As stated by the court, this analysis is "similar to a differential diagnosis in the medical field where potential causes of the harm are identified and then either excluded or included based on their relative probabilities."  The court cites to Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2004) to provide guidance.  With this approach, experts must provide objective reasons for eliminating alternative causes.  Other possible causes of an accident must be eliminated as "highly improbable," and the cause must be identified as "highly probable."  As stated by the court:

Although the expert need not categorically exclude alternate causes, that does not relieve the expert of his burden to prove the alternate cause is at least highly improbable based on an objective analysis.  We believe this objectivity requirement is consistent with the quality control element of [State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)].

(5) The court is going to give some deference to physicians, even when they may not understand the legal significance of being designated as an "expert."  Plaintiffs named a doctor to opine as to whether the infant in Graves could have been revived if someone heard the alarm.  Although the doctor admitted she did not consider herself a Sudden Infant Death Syndrome ("SIDS") expert, the court found her to be qualified based on the fact that she had thirty years experience as a neonatologist, was current on SIDS literature, and encountered SIDS in her practice.  Furthermore, the recognized again that most doctors do not give scientific testimony.  If the doctor is merely applying his/her knowledge to every day experiences, then s/he does not need to satisfy the standard for reliability in State v. Council. 

(6)  "Res ipsa loquitor...get back in your cell!"  South Carolina still does not accept res ipsa loquitor as a liability theory in products liability claims...period.  Although the court did not use the term, it is pretty clear from its language: "It is well-established that one cannot draw an inference of a defect from the mere fact a product failed."

(7) Finally (and as you have likely realized by now), this decision continues a trend of greater focus on expert testimony by South Carolina's appellate courts.  Beginning with Watson, the appellate courts have really been scrutinizing both whether expert testimony is required for a defect theory and the reliability of any testimony by a proffered expert.  Graves continues this trend.

I welcome any comments.

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Verdict Survey: Jeans in Anderson County

This week's verdict survey involves jeans in Anderson County.  I grew up in Anderson County and have fond memories of it.  I am a proud graduate of T.L. Hanna High School, and I tell people that my only "claim to fame" is that I know Radio and Coach Harold Jones personally.  I even ran track with Radio, and Coach Jones was my track coach.  (Radio always "managed" the football team in the fall, and he ran track in the spring...100m and 200m).  If you are not familiar with these characters, watch the movie.  (My wife hates it when this movie up comes up in conversation because I remind her, "I don't have to watch the movie babe...I lived it"...(looking off in the distance dramatically)).

Capsule Summary: On August 26, 2004, an Anderson County jury returned a defense verdict in a case involving jeans that caught on fire and burned a fourteen-year-old male. 

Case Information: Deborah L. Henderson, Individually and as Guardian ad Litem for Travis Henderson, a Minor, et al v. Tommy Hilfiger Corp. and Dillards, Inc., Case No. 2002-CP-04-2063

Date of Verdict: August 26, 2004

Venue: Anderson County Court of Common Pleas

Judge: J. Cordell Maddox, Jr.

Factual Background: A fourteen-year-old male was setting off fireworks when the jeans he was wearing caught on fire.  The jeans were manufactured by Defendant Tommy Hilfiger Corp. and purchased from Defendant Dillards, Inc.

Allegations and Procedure:  Plaintiff brought a products liability lawsuit against Defendants in which she alleged the jeans were defectively manufactured, contained flammable materials, and were unreasonably dangerous.  Defendants argued that the boy was responsible for his own injuries since he was playing with fireworks.

Experts: Plaintiffs retained Meyer Rosen, a chemical consultant from East Norwich, New York.

Alleged Damages: The minor alleged second degree burns to the lower extremities.  He claimed permanent scarring to his right thigh and past medical expenses of $1,758.

Disposition: After two hours of deliberation, the jury returned a defense verdict.

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Case Brief: Graves v. CAS Medical Systems, Inc.

On August 29, 2012, the Supreme Court of South Carolina issued its opinion in Graves v. CAS Medical Systems, Inc.  This case continues the trend of South Carolina’s appellate courts closely scrutinizing expert witness testimony.  I will be blogging more about this case later with regard to its impact on the necessity of expert testimony in a South Carolina products liability case.

FACTUAL BACKGROUND: Plaintiff-parents had a six-month-old girl who was monitored by Defendant-manufacturer’s baby monitor. The monitor was designed to sound an alarm if the patient experienced certain events, and it also included various back-up alarms and logging features to track vital signs and sounding of the alarm.  Plaintiffs awoke one morning and checked the infant only to find she was dead.  Neither Plaintiffs nor another family member heard the monitor sound an alarm.  The logging for the monitor reflected various apneic and bradycardic events, and it also indicated the alarm went off.

PROCEDURE: Plaintiffs filed claims for strict liability (design defect), negligence and breach of warranty against Defendant, claiming the monitor’s software design caused the alarm to fail.  Plaintiffs identified three software experts, none of whom did any real testing.  Instead, they used a “reasoning to the best inference analysis,” which the court likened to a differential diagnosis where other potential causes are excluded.  The experts evaluated three potential causes: complaint error (i.e., that the machine was misused or the alarm sounded but was not heard), hardware error (i.e., whether the machine functioned properly), and software error.  The experts excluded hardware error because the monitor was tested and functioned properly.  Therefore, the issue was whether complaint error or hardware error occurred. 

One of Plaintiff’s experts, Dr. Walter Daugherity, excluded complaint error purely on grounds that he did not believe anyone could sleep through the alarm.  He discounted the monitor’s log that the alarm sounded by pointing to the undisputed testimony of fact witnesses that it did not go off.  Therefore, he opined software error was the only cause.  Plaintiff’s second expert, Dr. William Lively, primarily relied on the conclusions of Dr. Daugherity to arrive at his opinion that software error was the cause.  He did no real analysis himself.  Plaintiff’s third expert, Frank Painter, concluded (similar to Daugherity) that complaint error could be excluded in spite of the monitor’s log.  He also admitted he did not really examine the software code.  Plaintiffs designated an additional expert, Dr. Donna Wilkins, to opine as to whether the infant could be revived.  She admitted she was not an expert in Sudden Infant Death Syndrome (“SIDS”), but she opined the infant likely could have been revived if the alarm sounded.

Defendants moved to exclude all experts based on lack of reliability, and also for summary judgment (on grounds that without expert testimony Plaintiffs had no evidence of design defect).  The circuit court granted both motions.

ISSUES: (1) Whether the circuit court erred in excluding opinions of Plaintiffs’ experts; and (2) whether the circuit court erred in granting summary judgment.

DISPOSITION: Affirmed with modifications (finding the medical expert’s opinions should not have been excluded on reliability grounds, but upholding summary judgment in spite of this modification).

RULES AND OPINION: The opinion is basically divided into two parts, as follows:

Exclusion of Experts

Expert testimony must meet the requirements of South Carolina Rule of Evidence 702 whether it is scientific, technical, or other expert testimony.  Therefore, it must (1) be beyond the ordinary knowledge of the jury, (2) the expert must be qualified, and (2) the substance of the testimony must be reliable.  The reliability prong is the central feature of the inquiry.  Defendants conceded Daugherity, Painter, and Lively satisfied the first two elements.  The only issue was whether the opinions were reliable.   

The court focused on whether these experts had grounds to exclude complaint error based on objective criteria.  For all three experts, the court found they simply assumed the alarm did not sound based on the assertions of the individuals alleging failure of the monitor.  They did not provide objective criteria for eliminating complaint error as a cause.  The court also found the experts improperly relied on reports of other failures to support their conclusions that software error was to blame.  A plaintiff bears the burden of proving that other incidents are “substantially similar to the accident at issue,” and the other incidents relied on by Plaintiffs’ experts did not suggest software error to be a cause.  (Citing Watson v. Ford Motor Co., 389 S.C. 434, 453, 699 S.E.2d 169, 179 (2010)).  The court agreed with the circuit court that the opinions were unreliable and that complaint error was a real possibility. 

Of great concern to us is that each of them began with the assumption that the monitor failed and then discounted evidence to the contrary based on the ipse dixit of the plaintiff who hired them, an analysis we find lacking in the indicia of reliability required for reasoning to the best inference.

Accordingly, there was no abuse of discretion in excluding Daugherity, Painter, and Lively.  (As a side note... BOOM Goes the Dynamite!  I love it when a court drops the “ipse dixit” bomb in review of an expert’s opinions…it is kind of like when someone quotes your brief back to you and drops in “[sic]” to telegraph that you made a grammatical error…but I digress).

With regard to Dr. Donna Wilkins, the court found the circuit abused its discretion in not finding her qualified based on her own testimony that she did not consider herself an expert in SIDS.  She had thirty years of experience and stayed current on SIDS literature.  Furthermore, the circuit court committed an error of law in finding her testimony unreliable.  “[A] doctor who merely applies his knowledge to everyday experiences does not need to satisfy the additional [reliability prong required by South Carolina law in State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)].” 

Summary Judgment

Without expert testimony, Plaintiffs had no direct evidence of whether the monitor was unreasonably dangerous because there was no identification of a specific design flaw.  The court then turned to whether there was sufficient circumstantial evidence of defect to survive summary judgment.  The court clarified it had not foreclosed the use of circumstantial evidence for design defect claims.  “[W]e recognized in [Branham v. Ford Motor Co., 390 S.C. 203, 230, 701 S.E.2d 5, 20 (2010)] that other similar incidents can be used to show a design defect, which is classic circumstantial proof.”  It is up to the trier of fact to determine if it is worth as much merit as direct evidence. 

In this context, the court stated that one cannot draw an inference of defect from the mere fact a product failed.  (Citing Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct. App. 1990)).  A plaintiff must offer evidence beyond the product’s failure to prove a product is unreasonably dangerous.  Testimony by Plaintiffs and other fact witnesses that the alarm did not sound is not sufficient.  “In some design defect cases, expert testimony is required to make this showing because to make this showing because the claims re too complex to be within the ken of the ordinary lay juror.”  Whether expert testimony is required is a matter of law.  In the instant case, the court found as a matter of law that Plaintiffs’ case required expert testimony; it involved design and structure of software.  Therefore, without it, Defendant was entitled to summary judgment.

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Verdict Survey: Playground Equipment in Greenville County

Products liability verdicts are fairly infrequent in South Carolina, as our state seems to be following the unfortunate trend that fewer and fewer cases actually go to trial.  Therefore, in an effort to put some “meat” on the bones of the “Verdicts” portion of this site (and to provide greater frequency of content), I am going to periodically survey past verdicts in South Carolina products liability cases.  Similar to the Case Briefs, these posts will provide some basic case information that may be useful if you are evaluating a similar case of your own.  I am generally going to profile more recent verdicts first, and work my way backward.  In addition, this exercise will also add some content on experts utilized during the trials.

So without further I ado, I give you the first verdict survey.  

Capsule Summary: On March 20, 2008, a Greenville County jury returned a defense verdict in a playground equipment case involving alleged injuries to a fifty-five-year-old grandmother.  She was injured while helping her grandson on a “track ride” piece of equipment (general depiction above).

Case Information: Mascow v. Playland International, Inc., C/A No. 06-CP-23-0664R

Date of Verdict: March 20, 2008

Venue: Greenville County Court of Common Pleas

Judge: John C. Few

Factual Background:  The case involved a married, fifty-five-year-old grandmother who was a salon owner. She sustained injuries while playing with her grandson at a playground.  Plaintiff was assisting her grandson with the “track ride” equipment and claimed the horizontal bar on the ride came loose and fell on her. 

Allegations and Procedure: Plaintiff brought a products liability lawsuit against Playland International, Inc. She claimed Playland manufactured the equipment and that it was defectively designed because of detachment of the horizontal bar.  Playland contended it did not manufacture or sell the equipment at issue.  Playland also claimed that even if it manufactured the equipment, the equipment was safe; there were no other accidents involving the horizontal bar.   

Experts: Plaintiff named Archie Hardy as an expert witness in playground equipment.  Playland attacked the credibility of Plaintiff’s expert.

Alleged Damages: Plaintiff claimed she sustained soft tissue neck, back and arm injuries.  She claimed her low back injury was permanent.  She sought $13,000 in past medical expenses. Playland disputed the nature and extent of Plaintiff’s injuries. 

Disposition: After six hours of deliberation, the jury returned a defense verdict. 

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

NBI CLE De-Brief and What's On The Horizon

Edisto is my favorite South Carolina beach.  My law school roommate, Matthew Richardson, has a family home down there.  The Richardsons are great, great folks, and Matthew was always kind enough to have us all down to his house on many a law school weekend or during the summer.  As a result, I love Edisto, and I continue to take my family there from time to time.  The picture to the right seemed appropriate for a "what's on the horizon" post since it is an Edisto horizon.

First things first, on Wednesday I did a one-and-a-half hour teleseminar CLE for the National Business Institute, blogged about earlier here.  Whew...I am glad it is over.  Make no mistake, I enjoyed the opportunity to speak, and it involved subject matter that is (obviously) of high interest to me.  However, it is pretty challenging to speak non-stop for an hour and a half to an "audience" from your telephone.  I got about two-thirds of the way through my prepared material, and I still had 45 minutes to fill.  (Translated: enter the art of "ad lib.").  I hit my time limit on the nose, but the audience got a nice long account of the "trends and developments" in South Carolina's products liability law for the last half of the presentation.  Thanks to NBI for this opportunity.  My understanding is that the CLE was recorded so that it can be heard "on demand" if you need some CLE credit.  Try this link for more details.

Next week, I hope to get up a case brief of Graves v. CAS Medical Systems, which was issued by the South Carolina Supreme Court on August 29, 2012.  This case represents the third state appellate court products liability case this year, and it is pretty interesting.  Long story short, our state courts continue to scrutinize expert testimony in products liability cases, but there is some language in this case that makes me knit my brow a bit.  More on Graves next week.

I am scheduled to speak on November 9, 2012 at the South Carolina Defense Trial Attorneys Association Annual Meeting at the Sanctuary on Kiawah Island.  I am in my second year as the Products Liability Substantive Law Committee Co-Chair, and our committee is scheduled to do a 45 minute breakout session at 10:15 a.m.  I am planning to give an overall survey of South Carolina's products liability cases that have been issued in 2012.  Although there have only been three state appellate court cases, there have been quite a few cases in the district court.  Therefore, I hope to provide a good overview of the latest developments and case law.

Finally, I am talking with a friend from the Defense Research Institute about co-authoring an article that does a broad survey of national warnings law.  This is a larger project, and we have not undertaken it...yet.  However, it is in the planning stages.

We are heading into my favorite time of year when it (finally) gets cooler in Columbia, college football season is in full swing, and the holidays are not far off.  Keep checking back, and thanks for following the blog.