Case Brief: Holland ex rel. Knox v. Morbark, Inc.

 

Holland ex rel. Knox v. Morbark, Inc., 407 S.C. 227, 754 S.E.2d 714 (Ct. App. 2014), involves a wood chipper.  Anytime I hear the words "wood chipper" I think of Marge Gunderson in the movie, Fargo: "And I guess that was your accomplice in the wood chipper . . . ."  (Yes, that is a sock-covered foot under that piece of wood).

I guess you could say I have a dark sense of humor, and the truth is, I love that movie.  I have never looked at wood chippers the same since seeing it.  Anyway, read on...

 

FACTUAL BACKGROUND: Plaintiff's job was to clean and change the cutting knives inside a wood chipper.  407 S.C. at 230, 754 S.E.2d at 716.  When he attempted to raise the hood on the machine, the interior fan blades were still rotating and came in contact with the hood.  The contact caused the hood to kick back and strike Plaintiff in the head, injuring him.  Id. 

 

PROCEDURE: Plaintiff filed a Complaint against the wood chipper manufacturer ("Manufacturer"), his employer, a prior owner of the wood chipper (before sale to his employer), and the installer of the wood chipper.  407 S.C. at 231, 754 S.E.2d at 717.  Plaintiff moved to amend his Complaint to dismiss all defendants except Manufacturer and withdraw his negligence claim.  He maintained his actions against Manufacturer for strict liability and breach of warranty.  Manufacturer consented to Plaintiff's first amendment.  Plaintiff filed a second motion to amend his Complaint.  Manufacturer opposed the second motion and filed a motion for summary judgment.  Id. 

 

The circuit court denied Plaintiff's motion to amend his Complaint because it believed allowing the amendment would prejudice Manufacturer.  Id. at 232, 754 S.E.2d at 717.  The circuit court granted Manufacturer's motion for summary judgment on grounds that (1) the wood chipper was not in the same condition at the time of the accident as when it left Manufacturer's hands; (2) Manufacturer's failure to incorporate additional safety features did not render the machine unreasonably dangerous when no other industry manufacturer had incorporated the optional safety device advanced by Plaintiff's expert; and (3) Plaintiff failed to provide a reasonable alternative design as required under South Carolina law.  Id. at 232-33, 754 S.E.2d at 717-18.  The circuit court also dismissed Plaintiff's failure to warn claim.  Id. at 233, 754 S.E.2d at 718.  Plaintiff moved for reconsideration.  After his motion was denied, he appealed.  Id.

 

ISSUES: (1) Did the circuit court err in denying Plaintiff's motion to amend his Complaint; and (2) Did the circuit court err in granting Manufacturer's motion for summary judgment?  407 S.C. at 233, 753 S.E.2d at 718.

 

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

 

RULES AND OPINION:  First, the Court addressed Plaintiff's arguments concerning amendment of his Complaint.  407 S.C. at 233-37, 754 S.E.2d at 718-20.  He argued the circuit court denied his second amendment based on an erroneous conclusion that it had already granted his first motion to amend.  Id. at 233-34, 754 S.E.2d at 718.  In short, Plaintiff argued the court failed to grant his first motion to amend.  The Court of Appeals disagreed.  Although the circuit court issued no separate written order granting the amendment and dismissal of the other defendants, the evidence in the record established the circuit court permitted -- and the parties' consented to -- Plaintiff's amendment.  Indeed, Plaintiff relied on his first amended Complaint in opposing Manufacturer's motion for summary judgment.  His own behavior illustrated his belief that his first amended Complaint was properly before the circuit court.  Id. at 234, 754 S.E.2d at 718.

 

The Court then turned to Plaintiff's second motion to amend his Complaint.  Id. at 235, 754 S.E.2d at 718-19.  It reviewed the standard set forth in Rule 15 of the South Carolina Rules of Civil Procedure and the rules that (a) a motion to amend is addressed to the circuit court's discretion, and (b) the party opposing the motion has the burden of establishing prejudice.  Id. at 235, 753 S.E.2d at 719.  "Prejudice occurs when the amendment states a new claim or defense that would require the opposing party to introduce additional or different evidence to prevail in the amended action."  Id. (citing Ball v. Canadian Am. Exp. Co., Inc., 314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct. App. 1994)).  The Court affirmed denial of the second motion to amend because it found Plaintiff was in possession of the additional information about a defect theory after his experts were deposed, but he did not expound on the theory until much later at the motions hearing.  Id.  Although Plaintiff was not seeking to add a new claim, the addition of his defect theory -- raised after extensive discovery -- would have required additional depositions, hiring of rebuttal experts, and delay on the eve of trial.  Id. at 236, 754 S.E.2d at 719.  Furthermore, the second amendment would not occur until over two years after Plaintiff filed his first Complaint.  Therefore, the Court agreement Manufacturer would have been prejudiced by the granting of the second motion to amend.  Id.  The Court also pointed out in dicta that the alleged defect theory was based on an OSHA violation, and OSHA only regulates employers, not manufacturers.  Id. at 236-37, 754 S.E.2d at 719-20. 

 

The Court then turned to the circuit court's grant of summary judgment.  Id. at 237, 754 S.E.2d at 720.  Plaintiff claimed the circuit court erred in relying on Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010), and its requirement of proving a reasonable alternative design in design defect cases.  The Court disagreed and said that to prove a reasonable alternative design, Plaintiff was had to set forth some evidence of an alternative design, which included "consideration of costs, safety, and functionality associated with the alternative design."  Id. at 237-38, 754 S.E.2d at 720.  Plaintiff's expert admitted he was unaware of anyone in the industry that had performed a feasibility analysis for an alternative design.  Id. at 238, 754 S.E.2d at 720.  He also admitted he had not prepared an actual design for an interlock system concerning opening the hood and operating blades, only a concept.  "Because a conceptual design is insufficient to establish a reasonable alternative design, we find [Plaintiff's] claim for design defect fails as a matter of law."  Id. (citing Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 37, 699 S.E.2d 715, 719-20 (Ct. App. 2010)).  The Court further stated that because proof of reasonable alternative design is necessary in a design defect case, it would not address Plaintiff's remaining claims of error pertaining to his design defect cause of action.  Id. at 238, 754 S.E.2d at 720-721 (citing Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 598, 598 (1999) for the principle that an appellate court may not review remaining issues when determination of a prior issue is dispositive).   

 

The Court then turned to Plaintiff's argument that the circuit court erred in granting summary judgment on his failure to warn claim.  Id. at 239, 754 S.E.2d at 721.  First, because products liability claims share common elements, Plaintiff's failure to establish a reasonable alternative design in his design defect claim prevented him from succeeding on his failure to warn claim as a matter of law.  Id. (citing to Branham, 390 S.C. at 210, 701 S.E.2d at 8 for principle that failure to establish any one of the three elements in a companion products liability claim is fatal to all related products liability claims). 

 

Notwithstanding this issue, the Court held the circuit court properly granted summary judgment.  The Court recounted the law that "'[a] product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not liable for any injuries caused by the use of the product if the user ignores the warning.'"  Id. (quoting Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.2d 708, 710 (Ct. App. 1996)).  A seller is also not required to warn of dangers that are generally known and recognized, and therefore a product is not defective or unreasonably dangerous if the danger associated with the product is one the product's users generally recognize.  Id. 

 

With this context, the Court discussed how the wood chipper had decals, warnings, and an owner's manual when it left the hands of Manufacturer in 1996.  Id. at 239-40, 754 S.E.2d at 721.  These warnings were not present when Plaintiff was injured.  However, the owner prior to Plaintiff's employer had affixed warnings on the machine that warned of the potential dangers at issue in the case.  The Court found these warnings were sufficient to render the machine safe for use if the user followed the warnings.  Id. at 240, 754 S.E.2d at 721.   

 

Regardless, the Court believed it would be improper to hold Manufacturer liable for failure to warn since (a) Manufacturer affixed warnings at the time of manufacture, (b) the warnings at issue were affixed by a prior owner of the machine (not Manufacturer), (c) Manufacturer sold the machine ten years prior to the accident, and (d) three intervening owners used the machine before Plaintiff's injury.  Id.  Plaintiff also indicated in his testimony that he appreciated the danger being hit in the head by the hood if he opened it prematurely.  Manufacturer had no duty to warn Plaintiff of a danger he already recognized.  Id. at 240, 754 S.E.2d at 721-22.   

This is an interesting case that mixes in a little of everything.  There is heavy reliance on Branham and Anderson, which I consider to be two of the most important, "meaty" cases in South Carolina products liability law.  In addition, even though the Court does not quote case law concerning the "essentially same condition" element of a products liability action, it is clear there is some reliance on this law in affirming summary judgment.

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New SC Products Liability Decision: Courtney v. Nissan Motor Co., Ltd

Yesterday, the South Carolina Court of Appeals issued a new products liability decision, Courtney v. Nissan Motor Co., Ltd., Opinion Number 5106.  There were some real procedural issues in this case at the trial court level that prompted appeals by both the plaintiff and Nissan.

FACTUAL BACKGROUND: Minor plaintiff ("Plaintiff") was riding in the backseat of a 2000 Nissan Xterra.  As Plaintiff's father made a left turn, the automobile was struck by an oncoming vehicle on the right side.  Upon impact, a part of the automobile's frame punctured the fuel tank, resulting in a fire that injured Plaintiff and her mother.

PROCEDURE:  Plaintiff filed suit against Nissan alleging strict liability, negligence, and breach of warranty based on a design defect theory.  The case was tried over nine days.  At the conclusion of evidence, the court denied Nissan's request to charge the jury on the necessity of proving feasible alternative design as an element of Plaintiff's case.  The parties and the trial court agreed to submit seven special interrogatories to the jury, but the interrogatory concerning proof of feasible alternative design was to be shown to the jury after any verdict for damages.  Nissan objected and requested that this interrogatory be submitted with the others.  The trial court denied the request.   

The trial court did not differentiate between the consumer expectations test and risk utility test during its general charge to the jury on what Plaintiff had to prove in a design defect case.  Although it later charge the jury on both tests, it omitted that Plaintiff had to prove a feasible design alternative pursuant to the risk-utility test.  Prior to sending the jury to deliberate, the trial court told the jury it would be answering one additional interrogatory after the verdict was returned that was "irrelevant" to the deliberations.

The jury rendered a verdict against Nissan for $2,375,000.  The court then posed the seventh interrogatory to the jury (i.e., whether Plaintiff had proved a feasible alternative design that would have prevented the injury).  The jury responded, "no." 

Nissan filed a post-trial motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial.  Plaintiff filed a post-trial motion requesting the court disregard the jury's response to the seventh interrogatory.  Initially, the trial court denied both parties' motions.  However, three days later, the South Carolina Supreme Court issued its decision in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) in which it held that the risk-utility test was the exclusive test in a design defect case and required proof of feasible alternative design.  The trial court had a second hearing, and it denied Nissan's JNOV motion but granted the motion for a new trial.  Recognizing Branham, the trial court issued an order in which it concluded its decision not to charge the jury on proof of a feasible alternative design was reversible error and required the grant of a new trial.

ISSUES: Nissan appealed denial of its post-trial motion for judgment notwithstanding the verdict based on Plaintiff's failure to prove feasible alternative design.  Plaintiff also appealed the circuit court's decision to grant a new trial.  Plaintiff also claimed the circuit court erred in denying her motion to invalidate a special interrogatory in which the jury found Plaintiff failed to prove a feasible alternative design in her case against Nissan.

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

RULES AND OPINION: The appellate court first addressed whether Branham applied retroactively to the instant case.  It reviewed Branham's facts and law and concluded that the South Carolina Supreme Court intended for Branham to have retroactive application.   Branham recognized no new right or cause of action; it only affirmed that the risk-utility test would be the exclusive test for design defect cases.  

Next, the appellate court held that the jury's post-verdict finding that Plaintiff failed to prove feasible alternative design did not entitled Nissan to JNOV.  Nissan pointed out evidence in the record that Plaintiff agreed to craft the special interrogatory specifically to address feasible alternative design issues.  Although the appellate court agreed, it cited to Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 480, 629 S.E. 2d 653, 672 (2006) for the principle that it is improper to submit factual issues to the jury in the form of non-binding "advisory interrogatories."  Accordingly, the appellate court found that the trial court's denial of the JNOV motion indicated neither the parties nor the trial court intended for the answer to the interrogatory to be dispositive on the issue of liability.  It also pointed out portions of the record to support that Plaintiff did not intend for the seventh interrogatory to impact liability. 

With regard to Plaintiff's cross appeal that the trial court erred in granting a new trial because the consumer expectations test was permissible at the time of decision, the appellate court pointed out it had already addressed this argument (i.e., Branham's retroactive application).  The appellate court also re-reviewed portions of Branham to highlight that the both the majority and dissent agreed that the risk-utility test was the proper test in a design defect case, and the appellate court did not believe the the majority or dissent expressly condoned use of the consumer expectations test at the time of the instant trial. 

Finally, Plaintiff argued that because the trial court charged on both the consumer expectations and risk-utility test, and the jury did not specify which theory it applied to determine liability, then the "two-issue rule" and the law of the case doctrine required reinstatement of the jury's verdict.  The appellate court disagreed that these doctrines applied.  Furthermore, Branham's holding made clear that the jury's verdict could not be supported by the consumer expectations test.  Although Nissan did not challenge the trial court's decision to incorporate the consumer expectations test into its jury charge, Branham had not been decided at the time and Nissan would not have had grounds to object.  Therefore, Nissan's failure to object did not require reinstatement.  The trial court's failure to properly instruct the jury was prejudicial to Nissan and required a new trial.

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More on the Legislative Amendment to Overturn Branham v. Ford

I wanted to provide an update on the post below concerning the proposed amendment to reverse the holding in Branham v. Ford. Admittedly, I was not at the hearing in question, and all the information I had at the time of my post was through the grapevine and from the article in the South Carolina Chamber of Commerce Update. Since my post, I have learned that the bill in question is H.B. 3375, which is entitled the "South Carolina Fairness in Civil Justice Act of 2011." At the hyperlink, you can find the various versions of the bill, by date. The version with the amendment in question is here, which is the committee report from February 23, 2011.

As you read through it, you are not going to find language that says "hey, this is the part that reverses Branham v. Ford." Instead, the amendment is more subtle. It strikes Sections 15-73-10, 20 and 30 of the South Carolina Code and adopts identical Sections 15-73-11, 21 and 31. My understanding is that the expressed purpose of the amendment was to overturn Branham. I am told that at the hearing, it was stated that the Branham case stood for the principle that if the Legislature did not actively renew a statue after a number of years, the Supreme Court felt it was empowered to overturn statutory authority and to adopt a rule of law directly contrary to the statute. Therefore, the amendment is to "renew" the statutory authority. The amendment re-adopts the comments to Section 402A of the Restatement (Second) of Torts as new Section 15-73-31.

My brief of Branham discusses how the South Carolina Supreme Court addressed the evolution of products liability law since incorporation of comment 402A into the statute, including the Restatement (Third) of Torts: Products Liability in 1998. The Restatement (Third) and the majority of jurisdictions have evolved toward the risk-utility test for design defect cases, and South Carolina's appellate courts have also gravitated toward this test over the years. Therefore, it makes sense to adopt it as the test for design defect cases. I do not read Branham as some sort of judicial slap to the face of the statutory authority or the Legislature. Rather, it is an attempt to keep South Carolina current in products liability law. However, I welcome reader comments.

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Something is afoot at the Legislature...(Update on Branham v. Ford and Proposed Punitive Damages Cap)

I have been hearing for awhile that there is a chance that the South Carolina State Legislature may take action in response to the South Carolina Supreme Court's decision in Branham v. Ford, and these rumors (may have been) confirmed today.

Apparently Senator Brad Hutto has offered an amendment to repeal the holding in the case. I say "may have been" above because I have not obtained a copy of the amendment, but the South Carolina Chamber of Commerce Competitiveness Update talks about this particular issue, and proposed caps on punitive damages, in today's edition. A cut and paste of the article is below (click the hyperlink above for the actual article). I will try to obtain the amendment and determine the nature of the provision.

Trial Lawyers Take Tort Reform Hostage

Last week, a Senate Judiciary subcommittee passed a comprehensive tort reform bill supported by the business community. However, this week the full Senate Judiciary Committee watered down key pieces of tort reform, including a meaningful punitive damage cap. The subcommittee also set unreasonable monetary thresholds for the admissibility of the non-use of seat belts.

The amended bill could be debated on the Senate floor as early as next week, and the South Carolina Chamber of Commerce is asking senators to vote against the committee amendment. If the committee amendment is defeated, the bill will revert back to the House-passed version of tort reform, which is a much stronger, pro-business bill championed by Speaker Bobby Harrell (Charleston).

The South Carolina Chamber and the South Carolina Civil Justice Coalition are also asking senators to examine neighboring states’ punitive damage limits, specifically Virginia, North Carolina, Georgia and Florida, and pick a model. Currently, trial lawyers are picking and choosing words and phrases from the other states in an attempt to render any cap in South Carolina meaningless.

The Chamber is also very concerned with an amendment offered by Senator Brad Hutto (Orangeburg), which was adopted by the full committee and repeals the Branham v Ford decision. The decision places South Carolina in the minority compared with other states on product liability issues. It also weakens the state’s business climate. At a time when the South Carolina Department of Commerce is working to expand the automotive cluster, this amendment must be stripped out of the tort reform bill.


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New SC Products Liability Decision

The South Carolina Supreme Court handed down a massive products liability decision in yesterday's advance sheets, Branham v. Ford Motor Company, Opinion Number 26860 (Aug. 16, 2010). The case can be found here and beginning on page 52 here. This opinion is over 40 pages long in the Advance Sheets, and a quick skim indicates that it may be a tutorial for years to come on South Carolina products liability law.

I have only had time for a quick skim, but the case involves the rollover of a 1987 Ford Bronco II 4x2 manufactured in 1986. At trial, a minor passenger brought suit against the driver and Ford, and the jury awarded $16 million in actual damages and $15 million in punitive damages. In its opinion, the South Carolina Supreme Court reverses and remands the findings of liability and award of actual damages. The bases for this decision are (1) that whether a product is defective is measured on the basis of information available at the time of manufacture, and post-manufacture evidence is generally not admissible, (2) the plaintiff introduced evidence of other incidents that was not substantially similar to the accident in dispute, and (3) the closing argument was a direct appeal to the passion and prejudice of the jury.

Folks, this opinion has a TON of information relating to design defect theories, post-distribution evidence, admissibility of similar incidents, appropriateness of closing arguments, verdict forms, apportionment of fault among tortfeasors, actual and punitive damages, and "alignment of parties." And check out this language:

While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature's presence in the area of strict liability for products liability.

We now have clear direction from South Carolina's Supreme Court on the consumer expectations and risk-utility tests (summarized here), and we also have clear direction on whether feasible alternative design is a required element (the subject of this post).

This case will definitely will be the subject of a forthcoming brief, but clearly it is one that will be required reading.

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Feasible Alternative Design in South Carolina Products Liability Law

UPDATE TO THE BELOW POSTED AUGUST 25, 2010: The South Carolina Supreme Court has now decided the issue of whether evidence of feasible alternative design is required in a design defect products liability action. Please see the posts concerning Branham v. Ford Motor Co. here and here for this development.

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It's been a busy summer at the South Carolina Products Liability Law Blog...so busy that I haven't been able to post much. I got pulled into a trial about 7 weeks ago, and just finished up. Therefore, there hasn't been much time for posting.

However, Collins and Lacy had the good fortune to have some law clerks join us for the summer, and one was gracious enough to carry the torch for me and put together a great survey of one area of products law. Specifically, one of the issues in my trial was whether South Carolina requires proof of feasible alternative design in a products case. Although many jurisdictions make feasible alternative design a per se element of any products case, South Carolina's state and federal courts have been less clear.

Brian Macho was up to the challenge of tackling this issue and sorting it out. Brian is a rising third year law student at Charleston School of Law in Charleston, South Carolina. In addition to having great research and writing skills, he also has a mean golf game (and played collegiately at Nova Southeastern University in Fort Lauderdale, Florida). Set forth below is Brian's work on this issue, and I greatly appreciate him providing some content to help me get over the hump in what has been a very, very busy summer.

Is proof of a feasible alternative design a necessary element for a plaintiff to prevail on a design defect claim in South Carolina?

By Brian Macho

Whereas many other jurisdictions clearly require that a plaintiff produce evidence of a feasible alternative design as part of their prima face design defect claim, South Carolina law has been less than clear since the Court of Appeal’s decision in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). In granting Defendant’s directed verdict motion in Bragg, the court noted Plaintiff “failed to introduce evidence of a feasible alternative design.” Bragg, 319 S.C. 546, 462 S.E.2d 330. This language left South Carolina law in a confounded state. Recently, however, it appears the United States District Court for the District of South Carolina, in Disher v. Synthes (U.S.A.), 371 F. Supp. 2d 764 (D.S.C. 2005), clarified that proof of a feasible alternative design is a “required element” of a plaintiff’s design defect case. Disher, 371 F. Supp. 2d at 771.

The issue of whether proof of a feasible alternative design is a required element in a product liability case was framed, explored, but not entirely answered by the court in Little v. Brown & Williamson Tobacco Corp., 243 F. Supp. 2d 480 (D.S.C. 2001). In Little, the widow of a smoker of over thirty years sued the defendant cigarette manufacturers – alleging, among other causes of action, design defect – for her deceased husband’s lung cancer and smoking related injuries. Id. at 485. In support of its motion for summary judgment, the defendant argued the plaintiff could not meet her burden to prove a safer and feasible alternative design for cigarettes. Id. at 494. The plaintiff countered by arguing proof of a feasible alternative design is not a per se element of a plaintiff’s design defect case in South Carolina, but rather merely a factor to be considered in the risk-utility analysis to determine whether the product is unreasonably dangerous. Id. at 495. Thus, the issue of whether a feasible alternative design is a per se element of a products liability claim was squarely before the court. Id. In its analysis, the Little court initially noted that “South Carolina courts have not explicitly decided whether showing a safer alternative design is a per se element in a product liability case.” Id. at 495. The court went on to explain, however, that “failure to provide such proof can doom a case as a matter of law.” Id. (citing Sunvillas Homeowners Assoc. v. Square D Co., 301 S.C. 330, 391 S.E.2d 868, 870 (1990) (noting, while upholding the trial court’s grant of summary judgment in favor of the defendant, that the plaintiff failed to offer any evidence of an alternative design); Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.e.2d 556, 559 (1984) (holding the issue of negligent design was properly submitted to the jury where the plaintiff introduced expert testimony that a feasible, safer alternative design existed and two company reports of the defendant which stated that a safer alternative design existed)). Finding the plaintiff had presented sufficient evidence to create a genuine issue of fact concerning whether a feasible alternative design existed, the court denied the defendant’s motion for summary judgment, and avoided clarifying the issue. Id. at 496. “Thus, whether the requirement that evidence of a safer alternative design is characterized as an element of Plaintiff’s products liability case or a factor to be weighed in the risk-utility analysis, it is clear the South Carolina law requires that Plaintiff provide such evidence in order to survive summary judgment.” Id. at 496; see also Simo v. Mitsubishi Motors North America, Inc., 245 Fed. Appx. 295 (4th Cir. 2007) (holding evidence of other SUVs already on the market at the time the subject SUV was designed was sufficient to prove the existence of a feasible alternative design to overcome summary judgment).

Most recently, the issue was again addressed in Disher v. Synthes (U.S.A.), 371 F. Supp. 2d 764 (D.S.C. 2005), where the court indicated evidence of a “feasible design alternative” is a “required element of plaintiff’s case.” Id. at 771. In Disher, the plaintiff had a titanium humeral nail implanted into his arm following a car accident to act as a temporary internal splint to align a fracture and enable healing. After the nail subsequently fractured while still inside the plaintiff’s arm, requiring surgical repair, the plaintiff filed a products liability action against the manufacturer of the nail, alleging design defect. However, the court granted the defendant’s motion for summary judgment, finding the plaintiff failed to proffer “the expert testimony . . . required to establish . . . the nail was defective and unreasonably dangerous.” Id. at 769. Initially, the court noted the plaintiff must produce relevant and reliable expert testimony to establish a product defect in medically complex cases. Id. The plaintiff had offered the expert testimony of a metallurgist untrained in biomechanical design. Furthermore, the plaintiff’s expert declined to label the subject nail “defective” because of his inexperience with biomechanics, but testified that the nail could have been made stronger with some untested, theoretical modifications. The court found this testimony insufficient to create a genuine issue for the jury. Moreover, the court explained “[t]he law recognizes that every product on the market could be ‘made stronger’ or ‘more safe,’ but the mere fact that the product could be ‘stronger’ or ‘safer’ does not establish a design defect or an unreasonably dangerous condition, as a matter of law.” Id. at 770 (citing Claytor v. General Motors Corp., 277 S.C. 259, 265, 286 S.E.2d 129, 132 (1982) (noting that a risk-utility analysis must be performed to weigh the usefulness and desirability of a product as it exists against any attempt to make it “more safe”)). Next, the court explained, to survive summary judgment, it is “crucial” that a plaintiff offer a feasible alternative design, and that untested conceptual design theories will not suffice. Id. at 771 (citing Little, 243 F. Supp. 2d at 495-96). Finally, the court clarified the relationship between feasible alternative designs and risk-utility analyses: “In determining whether an alternative design is practical or feasible, courts will look to see whether a risk-utility analysis has been conducted to weigh the benefits of any new design against the costs and potentially adverse consequences of the design.” Id. at 771-72 (citing Claytor, 277 S.C. at 265, 286 S.E.2d at 132 (identifying the factors to consider as part of the risk-utility analysis, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger). Although Disher addressed the issue of whether a feasible alternative design is required at the summary judgment stage, the courts reasoning indicates proof of an alternative design is a “required element” to prove a product is defective and unreasonably dangerous. Id. at 771.

Thus, Disher clarifies two fundamental points for design defect claims. First, the plaintiff must present evidence of an alternative feasible design to establish that a product is defective and unreasonably dangerous. Second, to prove the feasibility of an alternative design the plaintiff can present evidence either of other products incorporating an alternative design currently existing in the market or evidence that a risk-utility analysis has been conducted to weigh the benefits of any new design against the costs of the design. Id. at 771-72; see also Simo, 245 Fed. Appx. 295 (holding evidence of other SUVs already on the market at the time the subject SUV was designed was sufficient to prove the existence of a feasible alternative design to overcome summary judgment).

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Case Brief: Watson v. Ford Motor Co.

By Brian A. Comer

UPDATE: The South Carolina Supreme Court has re-filed this opinion as of September 13, 2010, and the below brief was based on the first opinion, and not the re-filed one. Please see this post for more details and links to the current opinion. The new opinion upholds the reversal and deals with the same issues (expert testimony and admission of other incidents), but it also includes additional language concerning Ford's motion for judgment notwithstanding the verdict.

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Yesterday, the South Carolina Supreme Court reversed an $18 million jury verdict against Ford Motor Co. on grounds that the trial court erred in admitting certain expert testimony, as well as in admitting evidence of other incidents. The case can be found here . It provides some great guidance on South Carolina's law concerning the admissibility of expert testimony and the responsibility of the trial court to act as a "gatekeeper" for same. It also sets forth certain factors that can be applied in the products liability context to determine whether evidence of other incidents should be admitted.

FACTUAL BACKGROUND: In December of 1999, Plaintiff Sonya Watson ("Watson") was driving a 1995 Ford Explorer with three other passengers, including Patricia Carter ("Carter"). After entering the interstate, Watson lost control of the vehicle, and it rolled for times. Watson and Carter were ejected from the vehicle. Watson was rendered a quadriplegic, and Carter died.

PROCEDURE: Plaintiffs filed a products liability lawsuit against Ford, D&D Motors, Inc. and TRW Vehicle Safety Systems, Inc., alleging that the cruise control system and seatbelts were defective and seeking actual and punitive damages. Plaintiffs' theory was that the Ford Explorer's cruise control system was defective because it allowed electromagnetic interference ("EMI") to affect it. Plaintiffs presented an electrical engineer, Dr. Antony Anderson, to support their theory. He testified that EMI can interfere with the speed component of a cruise control system and cause a vehicle to suddenly accelerate. He also testified that Ford could have used "twisted pair wiring" to prevent EMI so that the accident would not have occurred. Plaintiffs also presented the testimony of Bill Williams as an expert on "cruise control diagnosis," as well as evidence from four witnesses who testified about other incidents in which their Ford Explorers suddenly accelerated. Ford presented its own cruise control expert, Karl Passeger, who testified that EMI signals have no effect on cruise control. Ford also presented evidence that the floor mats could have caused the acceleration, as they had on prior occasions. The jury awarded compensatory damages of $15 million to Watson and $3 million to Carter's Estate.

ISSUES: The South Carolina Supreme Court addressed three issues presented by Ford on appeal:

1. Did the trial court err in qualifying Plaintiffs' expert Bill Williams as an expert in cruise control systems?
2. Did the trial court err in allowing Dr. Anderson's expert testimony regarding EMI and alternative feasible design?
3. Did the trial court err in allowing evidence of other incidents of sudden acceleration in Explorers?

DISPOSITION: Reversed.

RULES AND OPINION: The Court reviewed South Carolina's law of admission of expert testimony, which is governed by South Carolina Rule of Evidence 702. The trial court must make three key preliminary findings before presenting the testimony to the jury:

First, the trial judge must find that the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury. Next, while the expert need not be a specialist in the particular branch of the field, the trial court must find that the proffered expert has indeed acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter. Finally, the trial court must evaluate the substance of the testimony and determine whether it is reliable.

(Citations omitted). The Court analyzed the three appellate issues in this context.

Issue Number 1: The Court found that the trial court erred in qualifying Mr. Williams as an expert on cruise control diagnosis. A trial court's inquiry into the qualifications of an expert should be "broad in scope." Although Williams testified that he had worked in the automotive industry as a trainer, consultant, software developer, and a writer, his qualifications were lacking in other respects.

• He had no professional experience working on cruise control systems prior to the litigation.
• He had not conducted any comparison of the Explorer's cruise control system to any other system.
• He had never taught or published papers on cruise control systems.
• "Williams had no knowledge, skill, experience, training or education specifically related to cruise control systems." Instead, he "taught [him]self" about the Explorer's system prior to trial.

The Court found that the trial court failed to properly evaluate Williams' qualifications specific to cruise control systems and erred in qualifying him as a cruise control expert. However, Williams' testimony was primarily descriptive of the cruise control system, its scope was controlled by the trial court, and he was subject to extensive cross examination to impeach his credibility. Therefore, the error did not prejudice Ford.

Issue Number 2: The Court found that the trial court abused its discretion in admitting Dr. Anderson's testimony. First, the Court rejected the notion that technical evidence is not subject to the same reliability requirements as scientific evidence. "The trial court must examine the substance of the testimony to determine if it is reliable, regardless of whether the expert evidence is scientific, technical, or other specialized knowledge."

Next, the Court examined Dr. Anderson's qualifications and the reliability of his testimony (applying the reliability factors articulated in State v. Council, 335 S.C. 1, 19, 515 S.E.2d 515, 517 (1999)). The Court found that with regard to his opinions concerning alternative feasible design, Dr. Anderson failed to meet Rule 702's rule that the witness be qualified in the particular area of expertise. Dr. Anderson's experience was in working with large generators with different electrical wiring systems and voltage levels. He had no experience in the automotive industry, never studied a cruise control system, and never designed any component of such a system. Plaintiffs also failed to illustrate that his testimony that twisted pair wiring would have cured the EMI defect was reliable, or how it could be incorporated into a cruise control system. There was also a lack of evidence to support the economic feasibility of this alternative.

The Court also found that Dr. Anderson's testimony about EMI and its effect on the cruise control system was unreliable. He admitted that his theory had not been peer-reviewed, he had never published papers on it, and he had never tested it. He also could not pinpoint where the EMI that caused the malfunction originated, or the system in the Explorer that it affected. His only document to support his theory was a 1975 National Highway Safety Administration report, which had been superseded in 1989. The Court focused on the fact that Dr. Anderson had never published his theory, never tested it, and that his theory had been rejected in the scientific community. Admission of Dr. Anderson's testimony was prejudicial error because it was the only evidence presented by Plaintiffs to support their theory of defect.

Issue Number 3: The Court found that the trial court's admission of evidence of other incidents of sudden acceleration was prejudicial error. Evidence of similar incidents is admissible where there is some special relation between the accidents tending to prove or disprove some fact in dispute. (Citing Whaley v. CSX Transp., Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005)). The Court also cited to a District of North Carolina case, Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D. N.C. 1995), for factors to consider regarding admissibility of similar incidents to prove defect, including (1) similarity of the products, (2) similarity of defects, (3) causation related to defect in the other incidents, and (4) exclusion of other reasonably secondary explanations for the cause of the other incidents. Plaintiffs failed to show that the incidents were substantially similar and failed to establish a special relation between the other incidents and Plaintiffs' accident. The products were not similar because the other incidents involved Explorers made in different years and of a different model type. Plaintiffs failed to show a similarity of causation between the incidents, and they failed to excluse reasonable explanations for the cause in the other incidents. Therefore, this evidence was irrelevant. The admission of this evidence was highly prejudicial, especially in light of the fact that Plaintiffs' counsel highlighted it in his closing argument and "thereby possibly induced the jury to speculate as to other causes of the accident not supported by any evidence."

CONCURRING OPINION: Justice Pleicones wrote the concurring opinion for Justices Waller, Beatty, Kittredge, and Pleicones. The concurring opinion focuses primarily on the framework for analyzing the admissibility of expert testimony. It disagrees with the first inquiry in the framework articulated in the majority opinion, "Is the subject matter of the testimony beyond the knowledge of a layperson, thus requiring and expert to explain it?" Instead, the concurring opinion cites to the framework cited in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999), which is (1) is the underlying science reliable?; (2) is the expert qualified?; and (3) would the evidence assist the trier of fact to understand the evidence or to determine a fact in issue? The concurring opinion also disagreed that the model and manufacture year of the Explorers in the other incidents were meaningful distinctions for purposes of excluding this evidence.

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Case Brief: Sunvillas Homeowners Ass'n, Inc. v. Square D Co.

By Brian A. Comer

Today's brief is of Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). The case is most often cited for for the principle that the mere fact that a product malfunctions does not establish the manufacturer's negligence or that the product was defective.

Factual Background: A fire occurred at a beachfront condominium project. Square D manufactured a circuit breaker utilized in the project. 301 S.C. at 332, 391 S.E.2d at 869.

Procedure: Sunvillas Homeowners Association ("Sunvillas") sued various defendants to recover damages resulting from the fire, and the only defendant involved in the appeal was Square D. 301 S.C. at 332, 391 S.E.2d at 869. Sunvillas claimed the circuit breaker was negligently designed or manufactured. Id. At the end of the plaintiff's case, Square D made a motion for directed verdict, which the trial judge granted. Id. "Square D then moved to amend the complaint to conform to the proof on the issue of warranty. The trial judge denied the motion the basis that he had already directed a verdict when the motion was made." Id. at 334, 391 S.E.2d at 870.

Issues: The two issues on appeal were (1) whether the trial judge erred in granting Square D's motion for a directed verdict at the end of the plaintiff's case, and (2) whether the trial judge erred in denying the motion to amend Sunvillas complaint to add a breach of warranty claim. 301 S.C. at 332, 391 S.E.2d at 869.

Disposition: The South Carolina Court of Appeals affirmed the decisions of the trial court.

Rules and Opinion: The court first addressed the granting of the directed verdict motion. 301 S.C. at 332-34, 391 S.E.2d at 869-70. Sunvillas employed the services of an expert qualified in electrical engineering and origin of electrical fires. Id. at 332, 391 S.E.2d at 870. The expert sent the circuit breaker to Square D for analysis, but he did not agree with their opinion that the cause of the malfunction was water and waterborne contaminants which had followed the top lead-in wires into the breaker. Id. He agreed that there was corrosion in the breaker, but denied that it was the cause of the failure. Id. Though he could not identify the defect, he based his opinion of product defect on the fact that the breaker malfunctioned. Id. In affirming the trial court's directed verdict for Square D, the court stated that "[t]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor tend to establish the product was defective." Id. at 333, 391 S.E.2d at 870. Though negligence may be proven by circumstantial evidence, "the plaintiff must show such circumstances as would justify the inference that the damages suffered were due to the negligent act of the defendant and the question may not be left to mere conjecture or speculation." Id. at 334, 391 S.E.2d at 870. Sunvillas' expert did not testify about design alternatives, and he did not identify a specific defect in the breaker that was the result of a manufacturing error. Id. The jury would have been left to speculate about the how Square D failed to exercise due care, so the trial court was correct in granting the directed verdict. Id.

With regard to the denial of plaintiff's motion to amend the complaint, this issue is somewhat confusing because the court's decision is not entirely clear on who moved for the amendment of the complaint. At the outset of the opinion, the court states that Sunvillas made the motion. 301 S.C. 332, 391 S.E.2d at 869. However, at the beginning of the discussion, the court states that "Square D moved to amend the complaint to conform to the proof on the issue of warranty." Id. at 334, 391 S.E.2d at 870. Later, the court again states that it was Sunvilla's motion. Id. at 335, 391 S.E.2d at 871. Regardless, the court stated that the motion was governed by S.C.R.C.P. 15(b) and that there was no evidence that the issue of implied warranty was tried by express or implied consent. Id. Sunvillas chose to plead only negligence, and "[i]t did not move to amend until after the trial judge had ruled against it on a directed verdict motion." Id. The court agreed with commentators that the opposing party may not be conscious of the relevance of certain evidence to issues not raised by the pleadings if that matter is not made clear. Id. "Since defect of the project was relevant to neglengence as well as warranty and we find no indication of implied consent to try a warranty claim, we affirm the trial court's decision to deny the motion." Id. The second portion of S.C.R.C.P. 15(b) (dealing with objection to the introduction of evidence as being not within the pleadings) was not applicable to the case. Id.

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