Tuesday, February 28, 2012

Lots Going On Already in 2012

Two months into this year, and things are pretty busy on my end.  I enjoy blogging about products liability issues in South Carolina, but I also have some things coming up that may be of some interest to followers of my blog.

On March 21, 2012, I am doing a presentation to the South Carolina Association of Convenience Stores concerning South Carolina's products liability law.  I anticipate much of this presentation will draw from South Carolina's food/beverage law and my blogs relating to it.

I have already blogged about attending this year's DRI Products Liability Conference (see the post here) on April 10-13, 2012.  I always enjoy it, and Las Vegas is a great venue. 

The week after the DRI Products Liability Conference, I am attending and speaking at the Primerus Defense Institute Convocation.  My colleague, Christian Stegmaier, will also be attending.  As I have blogged about in the past, my firm is a member of the Primerus group of law firms, and each year the organization holds this particular conference for members of the Primerus Defense Institute and some of their clients.  This year's conference is in La Jolla, California, April 19-22, 2012.  If any readers are going to attend, then I hope to meet you.  I am going to be speaking with some other lawyers about the law of non-contractual indemnification in products liability cases.  My piece of this presentation is going to focus on what a manufacturer or distributor should consider in either bringing a claim for indemnification or accepting a tender of defense.  With two conferences in back-to-back  weeks in April, it is going to be a busy month!

I am submitting an article on products liability for publication in the South Carolina Defense Trial Attorneys Association's ("SCDTAA") publication, The Defense Line.  My deadline for my submission is May 15, 2012.  I still have not settled on a topic, but I have some ideas.  I may summarize some of the law from my holiday food series in article format.  Or, I have recently been dealing with some products liability indemnification issues, and issues relating to proof of defect through circumstantial evidence.  Any of these topics would make a good article, but if anyone has any suggestions please let me know!  I am always looking for good article or blog topics.

In June, I am helping my firm put together a CLE for the South Carolina Chapter of the Association of Corporate Counsel.  We are doing a three-hour seminar on business, social media, and litigation risk management.  The first hour is going to focus on business risk management and include a presentation on insurance issues, document retention policies, and other risk management issues.  The second hour is going to focus more on employment law and management of the risks associated with use of social media.  The last hour is going to be a panel discussion of risk management in litigation, including various perspectives from in-house counsel.  If you are a member of the South Carolina ACC Chapter and want to be involved, let me know!  I am looking for folks to incorporate into the program if one of these topics is in your area of practice.

Looking further into the year, I am working with the SCDTAA on some programming ideas for the Products Liability Substantive Law Committee, which I Co-Chair.  Be on the look out for more information on that, as it is still in the planning stages.  We are considering a program in August that will provide a CLE devoted to products liability for SCDTAA members.  We will also be doing a breakout session at one of the two SCDTAA meetings (either the summer meeting or the annual meeting). 

On October 11, 2012, I am doing a teleconference from 11 a.m. to 12:30 p.m. (ET) entitled "South Carolina Update: Product Liability" as part of the National Business Institute's CLE series.  This particular teleconference/webinar will include an update about any new case law, statutory/regulatory changes, trends and developments in South Carolina products liability law.

Finally, the Primerus Annual Conference is November 1-4, 2012 in Scottsdale, Arizona.  I am tentatively planning to go (bearing in mind it is only February, and anything can happen between now and then when you practice law).

If any readers will be at any of the above events, or if you have an interest in any written materials I may generate for them, let me know.

And in between all of the above?  Working with great clients in my law practice and juggling life and family.  Sometimes it can be tough, but it is a great "problem" to have!  I hope your 2012 is shaping up to be a good one.

Thursday, February 9, 2012

South Carolina's Tort Reform Statute Became Effective January 1, 2012

This post is about 40 days late, and I meant to post it earlier.  However, between discussing food liability over the holidays and getting busy, it went by the wayside.

South Carolina's tort reform statute became effective on January 1, 2012. From reviewing my Google Analytics daily report, there is a great deal of interest in what the statute means to South Carolina litigation in the future.  There have been quite a few keyword searches about tort reform that brought readers to my blog.

So without further delay, let do a quick summary of what the South Carolina Fairness in Civil Justice Act means.  I have done extensive previous blogging about the legislative process that brought about the Act, and you can find those posts here, here, herehere, here, and here.  The final version of the Act can be found here

In a nutshell, here is what the Act changes about South Carolina litigation:
  • A claim for punitive damages has to be specifically prayed for in the Complaint.  It does not have to be a specific amount, but the plaintiff has to plead them as part of the relief being sought.  S.C. Code § 15-32-510.
  • If requested by a defendant, all actions involving punitive damages must be conducted in a bifurcated trial before the same jury.  The first stage of the trial is limited to assessment of liability, and punitive damages evidence is not admissible at this stage.  Punitive damages can be considered if nominal or compensatory damages are awarded in the first stage.  In the second stage, punitive damages may be awarded only if the plaintiff proves willful, wanton, or reckless conduct by the defendant by clear and convincing evidence.  There is a long list of factors that the jury can consider in determining the amount of punitive damages.  If punitive damages are awarded, the trial court reviews the award to ensure it is not excessive.  In a case with multiple defendants, a punitive damages award must be specific to each defendant, and the defendant is only liable for that amount.  See generally S.C. Code § 15-32-520, and see subsection (E) for the list of factors considered (e.g., degree of culpability, severity of harm, etc.).
  • S.C. Code § 15-32-530 sets forth the caps on punitive damages.  Generally, punitive damages may not exceed the greater of three times the amount of compensatory damages awarded to each claimant, or $500,000.  This limit cannot be disclosed to the jury.  If the amount returned is greater than the cap, then the trial court has to assess whether the wrongful conduct was motivated primarily by unreasonable financial gain and was known by a policy decision-maker or whether the defendant's actions could subject the defendant to conviction of a felony and the conduct and was the proximate cause of plaintiff's damages.  If so, then the "cap" becomes four times the compensatory damages or $2 million, whichever is greater.  If not, then the amount is reduced to the initial cap (three times compensatory damages or $500,000).  However, as Billy Mays once said, "But wait, there's more!"  That's not the end of the loopholes in the "cap."  If the trial court determines (1) there was an intent to harm by the defendant, and harm in fact, (2) the defendant pled guilty to or has been convicted of a felony concerning the same act or course of conduct that proximately caused plaintiff's injury, or (3) the defendant's actions were while under the influence of some sort of drug or alcohol....then "POOF"...the cap goes away.  The State Budget and Control Board can adjust these limits each year to factor in changes to the Consumer Price Index.  Finally, remedies under the South Carolina Tort Claims Act are exempt from this article.  If you really want to understand how all of this works, read S.C. Code § 15-32-530 in its entirety.
  • A circuit solicitor can now employ outside counsel without the approval of the Attorney General for civil forfeiture proceedings arising from criminal activity or from estreatment of bail bonds.  Other matters require written approval by the Attorney General.  S.C. Code § 1-7-750.
  • There are some new provisions about automobile insurers providing coverage information upon request from a claimant.  My colleague Jack Griffeth blogged about this portion of the law at the South Carolina Insurance Law Blog, and you can find his post here.  The statute can be found at S.C. Code § 38-77-250.
  • I do not do construction law, but if you do, you need to check out S.C. Code § 15-3-670.  In it, you will find there are some limitations on actions based on unsafe or defective improvements to real property, evidence of fraud, negligence, gross negligence, or recklessness.  The statute also takes away the eight year statute of limitations in cases of personal injury or death.
  • Finally, S.C. Code § 18-9-130(A)(1) is amended to include some new limitations on appeal bonds.  In short, the execution of a judgment is not stayed pending appeal unless the presiding judge grants a stay of execution.  Furthermore, if a stay is granted and a bond is required, the bond should not exceed the amount of judgment or (a) $25 million, whichever is less, for a business with greater than 50 employees and $5 million in gross revenue for the previous tax year, or (b) $1 million, whichever is less, for all other entities or individuals.
Those are all of the statutes implicated by the Act.  It will be interesting to see how they affect the administration of trials in South Carolina

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

Tuesday, February 7, 2012

Case Brief: Deloach v. Whitney, 275 S.C. 543, 273 S.E.2d 768 (1981)

Today's Case Brief is Deloach v. Whitney, 274 S.C. 543, 273 S.E.2d 768 (1981).  It stands for the principle that South Carolina's strict liability statute does not extend to negligent installation of a non-defective product.  It also illustrates the importance of carefully considering the legal theory you use for a case.

FACTUAL BACKGROUND: Plaintiff won four tires in a raffle by Defendant tire company.  275 S.C. at 544, 273 S.E.2d at 769.  Defendant installed the tires.  Id.  During part of the installation, a deteriorated valve stem, which was not part of the tire, was left on the wheel.  Id.  Plaintiff sustained injuries when the valve stem ruptured and he lost control of his car.  Id.

PROCEDURE: Plaintiff sued Defendant and alleged negligence, breach of warranty, and strict liability in tort.  275 S.C. at 544, 273 S.E.2d at 769.  Significantly, Plaintiff withdrew the causes of action for negligence and warranty and proceeded solely on strict liability in tort.  Id.  Defendant moved for a directed verdict at trial on strict liability, and the trial court denied the motion, finding services included within the scope of South Carolina's strict liability statute.  Id.  The sole issue submitted to the jury was whether Defendant was liable under a strict liability theory for failing to install a new valve stem or not warning Plaintiff of the deteriorated condition of the one on the wheel.  Id.  The jury returned a verdict for Defendant.  Id.  Plaintiff moved for a new trial because Defendant's closing argument was improper and prejudicial.  Id.  This motion was granted, and Defendant appealed.  Id

ISSUE(S): (1) Whether the trial court's denial of Defendant's motion for directed verdict was erroneous, and (2) whether Plaintiff should have been granted a new trial.  275 S.C. at 544, 273 S.E.2d at 769.

DISPOSITION: The trial court erred in granting a new trial because Defendant was entitled to a directed verdict as a matter of law, and any prejudice from Defendant counsel's closing argument was harmless.  275 S.C. at 545-46, 273 S.E.2d at 769-70.

RULES AND OPINION: Defendant moved for a directed verdict on the issue of strict liability because there had been no "sale" to bring the transaction within S.C. Code § 15-73-10.  275 S.C. at 544-45, 273 S.E.2d at 769.  The statute imposes liability upon sellers of defective, unreasonably dangerous products.  Id. at 545, 273 S.E.2d at 569.  The court refused to expand the statute to include negligent installation of a non-defective product (e.g., the tire).  Id.  The alleged defect was already present when Defendant performed his service.  Id.  Defendant neither supplied nor used a defective product in conjunction with mounting the tires on Plaintiff's car.  Id.  As stated by the court:
The actionable conduct, if any, resulted from his negligence in not examining the value stem.  We conclude this action does come within to scope of § 15-73-10, supra.  We decline to expand the scope of strict liability in South Carolina to include the negligent installation of a non-defective product.
Id.  As a result, the trial court should have directed a verdict, and there was no issue for the jury to decide.  Any prejudice from the closing argument was harmless (and moot).  275 S.C. at 545-46, 273 S.E.2d at 769-70.

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

Wednesday, February 1, 2012

Upcoming DRI Products Liability Conference in Las Vegas, Nevada, April 11-13, 2012

(I am happy to post information about legal conferences pertaining to products liability issues. I always try to provide products liability information that is useful to the defense bar, plaintiff's bar, manufacturers, and individuals. Therefore, if anyone has a products liability seminar or conference (regardless of whether it is defense or plaintiff-oriented), please pass it along and I will be happy to post the pertinent information).

The Defense Research Institute is holding their Products Liability Conference at the Venetian Palazzo in Las Vegas this year on April 11-13, 2012. This is a great conference. I went to the 2011 conference in New Orleans and the 2010 conference that was also in Las Vegas.  The theme for this year's conference is "Product Liability Litigation in the 21st Century: The Future is Now."  This is a "must-attend" event if you do products liability defense work, and I try to go every year.  This year I am serving as the Vice-Chair of the "Agricultural/Construction/Mining/Industrial Equipment" ("ACMIE") Specialized Litigation Group.  I will be helping with our breakout session, which is scheduled for 8:30 a.m. Friday morning. 

For our breakout session, we are doing two panel discussions.  The first discussion is entitled "What Keeps Me Up at Night: A Roundtable Discussoin of In-House Counsel's Expectations and Challenges, and How Outside Counsel Can Address Them."  It will include both in-house counsel from some large equipment manufacturers and outside counsel representatives.  The second discussion is entitled "'Age Ain't Nuthin' But a Number': The Challenges of Legacy Equipment."  The panelists for this discussion will talk about products liability claims involving older equipment (which is pretty common in ACMIE cases).  Finally, we will wrap up with the annual "ACMIE Top 10 Cases," which is a survey of the previous year's most interesting and most significant ACMIE cases.  If ACMIE is not your interest, then there are many other groups that will also do breakout sessions (ranging from recreational equipment to fire/casualty, mass torts, class actions, and everything in between).

All the details for the conference, including a brochure of the agenda, registration, etc., can be found here.

A cut and paste of the information from DRI's website follows:

DRI’s Product Liability Conference is indispensible for anyone who defends product liability litigation. Attendees will learn about the latest trends and decisions affecting product liability cases and get valuable practice tips, strategies and trial techniques to gain an advantage in defending the modern product liability case. Main stage speakers include experienced and well known product liability defense trial lawyers, in-house counsel and government lawyers.

The specialized litigation group (SLG) sessions will offer detailed analysis in 18 different product practice areas. A concurrent session on Wednesday presented by the Young Lawyers Committee offers an alternative track for lawyers of any age looking for high quality nuts-and-bolts presentations. The Corporate Counsel Committee invites in-house lawyers to a program and roundtable discussion on Thursday afternoon on issues unique to corporate counsel.


Advanced Registration Cutoff Date: 3/22/2012
Online Registration Cutoff Date: 4/10/2012

TypeRegistration Fee
Government Member $600.00
Member $895.00
Member In-House * $0.00
Non Member $1,025.00
Non Member In-House $0.00
* In order to qualify for the in-house counsel member rate, you must be a member of DRI and the Corporate Counsel Committee

 I look forward to meeting anyone who plans to be there.  If you plan on attending, shoot me a comment or email and maybe we can organize a dinner of attendees or meet up at one of the receptions.