Friday, March 23, 2012

March 21, 2012 Presentation to South Carolina Association of Convenience Stores

This past Wednesday I had the opportunity to speak to the South Carolina Association of Convenience Stores about South Carolina products liability law.  There were about 30 to 40 attendees, and I appreciated their attention and interest in my presentation.  I was accompanied by Charles Appleby, one of my colleagues at Collins & Lacy, P.C., who also spoke to the group on the Americans with Disabilities Act.

Generally, I provided the group with an overview of South Carolina products liability law.  Because of the nature of their business, I explained the concept of strict liability and how a retailer can face liability even if it did not have a role in the design or manufacture of a product.  I also surveyed some of the food and beverage law from my recent holiday series (e.g., the exploding bottle cases, insect/animal in food cases) and explained the concept of a manufacturing defect.  Finally, we wrapped it up with some discussion of what to expect if a products liability claim is brought against a retailer and best practices for preventing them and dealing with them.  The audience had some great questions at the end of the presentation.

I appreciated the opportunity to speak to this group and hope to again in the future!

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Friday, March 16, 2012

Case Brief: Campbell v. Robbins Tire and Rubber Company, Inc.

video

Today's "Case Brief" is Campbell v. Robbins Tire and Rubber Co., Inc., 256 S.C. 230, 182 S.E.2d 73 (1971) and involves a plaintiff who was injured while inflating at tire.  The guy in the video clip is not a plaintiff...he's actually trying to pop the tire tube.  I find his facial expressions of anticipation pretty funny.

Campbell is relatively short case, and I like it because (one can argue) it supports the necessity of expert testimony in a products liability case in order to prove defect.  The mere fact that a product malfunctions does not demonstrate it was defective.  A plaintiff has to prove this critical element.  (Although not exactly the same, this also ties into the fact that South Carolina does not recognize the doctrine of res ipsa loquitor).

FACTUAL BACKGROUND:  Plaintiff purchased two tire tubes manufactured by Defendant.  256 S.C. at 231, 182 S.E.2d at 74.  He put one on his truck, and it exploded during inflation, causing him to be injured.  Id.

PROCEDURE: Plaintiff sued Defendant for negligence in failing to inspect the tube before putting it on the market, in manufacturing a defective tube with weak seams and rubber, and in failing to warn Plaintiff of the defect.  256 S.C. at 232, 182 S.E.2d at 74.  At trial, Plaintiff won a verdict for actual damages.  Id.  Defendant made the appropriate motions during trial for directed verdict and for judgment notwithstanding the verdict on grounds that there was no evidence of defect or actionable negligence.  Id.  These motions were denied, and Defendant appealed.  Id

ISSUE(S): Whether the trial court erred in denying Defendant's directed verdict and judgment notwithstanding the verdict motions. 

DISPOSITION: Yes, the trial court was in error.  256 S.C. at 234, 182 S.E.2d at 75.  Reversed and remanded.  Id.

RULES AND OPINION: The court noted that it "elementary" that for Plaintiff to recover, he has the burden of proving defect and that the defect proximately caused his injury.  256 S.C. at 232, 182 S.E.2d at 74. The record showed that Plaintiff testified he had been a service station operator for 15 years, and a large part of his job was repairing, servicing and mounting truck tires.  Id. at 233, 182 S.E.2d at 74.  He testified as to precisely how he went about inflating the tire, including an account of the amount of air pressure in the tire during inflation.  Id.  During this process, the tire exploded.  Id.

The court noted that although Plaintiff offered evidence of injury, there was no evidence going to the issue of defect.  Id. at 233-34, 182 S.E.2d at 75.  Conversely, Defendant had the tube examined and inspected by an independent expert who found no inclusions, cracks, holes, or thin spots.  Id.  The expert confirmed the tube's correct chemical composition and tensile strength, and he offered testimony that the tube was inspected prior to delivery to dealers.  Id.

After reviewing this evidence, the court stated that Plaintiff failed to establish that there was a defect in the tire.  Id. at 234, 182 S.E.2d at 75.  "The burden was on [Plaintiff] to show that the tube was defective and such resulted from the negligent manufacture thereof by the appellant.  The mere fact that the tube exploded does not demonstrate the manufacturer's negligence nor tend to establish that the tube was defective."  Id. (emphasis added).  Viewing the record in the light most favorable to Plaintiff, the court concluded that the only reasonable inference was that Defendant was not guilty of negligence, and the trial judge should have directed a verdict in Defendant's favor.  Id.  The court reversed the trial court and remanded the case for entry of judgment in favor of Defendant.  Id.

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Thursday, March 15, 2012

Upcoming DRI Drug and Medical Device Seminar in New Orleans on May 10-11, 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 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.

Because I do defense work, last week I received the Defense Research Institute's mailer about this year's Drug and Medical Device Conference in New Orleans on May 10-11, 2012.  It has been quite a few years since I attended this conference (I last went to it in 2005 when it was in New York...a good time), but it is a must-attend if you defend drug and medical device manufacturers and distributors. 

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 Drug and Medical Device Seminar is the preeminent program for lawyers who represent pharmaceutical and medical device manufacturers. We are pleased to feature a number of nationally recognized judges, attorneys (both in-house and outside counsel), and other professionals who will address cutting-edge topics that are relevant to all who practice in this area, whether they are associates, lead trial counsel, or in-house attorneys. This year’s program will offer a variety of presentations, including trial skills demonstrations, panel discussions of judges overseeing coordinated pharmaceutical proceedings, and litigation insights from leading defenders of drug and device cases. In addition to the outstanding program, there will be numerous networking opportunities, including our annual Young Lawyers Blockbuster. Be sure to register now to reserve your place in New Orleans at DRI’s 28th annual Drug and Medical Device Seminar.

REGISTRATION RATES

Advanced Registration Cutoff Date: 4/20/2012
Online Registration Cutoff Date: 5/4/2012

TypeRegistration Fee
Government Member $600.00
Member $895.00
Member In-House * $0.00
Non Member $1,125.00
* In order to qualify for the in-house counsel member rate, you must be a member of DRI and the Corporate Counsel Committee.

Thursday, March 1, 2012

Interesting Information on South Carolina Product Exports

I get the daily "Midlandsbiz" Email Newsletter, which always provides some interesting information about friends, colleagues, and events in and around Columbia, South Carolina.  If you are not on the email list, you should check it out.

Recently, one of the articles had some interesting information that is pertinent to this blog (especially for any manufacturer readers).  The article provided information about South Carolina's exports, their increase in 2011, and the primary product and industry sectors for South Carolina's exports.  From a product liability standpoint, this article is useful because it provides information on what South Carolina businesses are making and the types of potential claims that may ultimately arise.

A link to the article is here.  A cut and paste of it is provided below.

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South Carolina’s 2011 exports jump 21 percent
Germany, Canada and China top export markets

COLUMBIA, SC - February 28, 2012 - Gov. Nikki Haley, the South Carolina Department of Commerce and the State Ports Authority today announced the state’s 2011 exports totaled more than $24.6 billion in goods sold to 198 countries around the world. Figures represent a 21.4 percent increase over 2010 totals. In 2011, South Carolina’s 21.4 percent export growth ranked the state 14th in the U.S.

“This is great news for South Carolina. We will continue to work on improving and modernizing our ports system, which plays a key role in bringing companies from around the globe to our great state,” said Gov. Nikki Haley.

The state’s top 10 export industries last year were vehicles, machinery, rubber, electrical machinery, plastics, paper and paperboard, organic chemicals, optics and medical equipment, wood pulp and cotton yarn and fabric. Of the top product sectors, the three experiencing the largest percentage increase were vehicles at a 52 percent increase, cotton yarn and fabric at nearly a 50 percent increase and electrical machinery at nearly a 25 percent increase.

“South Carolinians know how to make things – and we ship them the world over. Both Germany and Canada remain very important trade partners for South Carolina, and China is increasingly becoming a strong market for goods made in our state,” said Secretary of Commerce Bobby Hitt.

South Carolina ranked first among U.S. states in tire exports, holding nearly 30% of the share of U.S. made exported tires.

"South Carolina is poised to become the number one tire producing state in the U.S. and the tires that we make here are exported all over the world,” said Pete Selleck, chairman and president, Michelin North America.

Posting a 36 percent increase from 2010, Germany overtook Canada again for the top spot as South Carolina’s number one export market in 2011, purchasing nearly $4 billion in products. Canada was a close second, purchasing more than $3.7 billion in products. China remained at number three in 2011, purchasing more than $3 billion. Rounding out the top 10 export markets in 2011 in order of rank were Mexico at number four, the United Kingdom, Australia, India, Brazil, Japan and Saudi Arabia.

“Exporters in South Carolina's manufacturing and agricultural sectors benefit from access to competitive, deepwater port facilities,” said Jim Newsome, president and CEO of the South Carolina Ports Authority. “Growing our export base is essential to generating jobs in the maritime industry and across the state.”

South Carolina Commerce has also taken an active role in helping the state’s small businesses and homegrown companies reach markets outside the U.S.

2011 S.C. export rankings among states:
  • Ranked 17th in exports.
  • Ranked only behind California in exports to Germany
  • Ranked 4th in exports to Saudi Arabia
  • Ranked 9th in exports to India
  • Ranked 10th in exports to China
  • Ranked first in exports of tires, holding nearly 30% of the share of US made exported tires
  • Ranked first in exports of automobiles to the world, surpassing Michigan.

About S.C. Department of Commerce
As South Carolina’s leading economic development agency, the Department of Commerce works to recruit new businesses and help existing businesses grow. Commerce received the Silver Award from Business Facilities magazine, placing second in the 2011 Economic Development Deal of the Year competition. Commerce has been part of recruiting world-class companies to South Carolina such as Boeing, Bridgestone, Continental, Monster.com, Heinz, ZF Group, BMW and Google Inc. Commerce also supports small and existing business, rural development initiatives and offers grants for community development. For more information, visit http://www.sccommerce.com/.


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DRI: Sign Up for ACMIE Specialized Litigation Group "Lunch Around" at Conference

I will be attending the DRI Products Liability Conference on April 11-13, 2012 in Las Vegas (details here).  One of the things we started doing last year are "lunch arounds."  Sign-up sheets were put up in the registration area, and people would sign up to go to lunch together in a large group.  Last year, we did not have enough space for everyone who wanted to participate. 

This year, the Steering Committee for the DRI Products Liability Committee has expanded the program based on the high demand last year, and it has actually been part of the planning process for the conference. 

I will be hosting a lunch around on Wednesday at the conference (April 11)  for the Agricultural, Construction, Mining and Industrial Equipment ("ACMIE") Specialized Litigation Group ("SLG").  We will be going to lunch at Postrio Bar & Grill in the Venetian.  Lunch is from noon to 1:30 on the conference program.  We will meet at 12:10 p.m. in the registration area and go from there as a group.  If you are going to be at the conference and would like to join me, please let me know via comment or email and I will be happy to sign you up for the ACMIE lunch around.  I have room for nine more people.  There will also be a sign-up sheet at the conference, but it will be first come, first serve.

If this particular SLG is not your "thing," then there are many other SLGs (Food Law, Recreational Products, Fire & Casualty, Automotive...and the list goes on.).  You can find a list of the SLGs and their leadership here, or you can comment/email and I will be happy to put you in touch with the lunch around coordinator for any SLG you may be interested in joining for lunch.