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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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. 

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Directed Verdict in Products Liability Trial!

On May 30, 2012, I tried a non-jury products liability case in the Lexington County Court of Common Pleas.  The case was smaller, but it had some interesting issues that are blogworthy.  I also received a directed verdict, which was a nice result for a good client.  Set forth below is a summary of the case.

FACTUAL BACKGROUND: The plaintiff was an individual who restored a 1950 Chevy Styleline Deluxe automobile.  (The car to the right is not the actual car, but looks pretty much the same).  After refurbishing the car himself, the plaintiff decided he wanted to paint it a “candy apple” red.  This is significant because “candy” jobs are not your typical automobile paint job.  They have multiple coats and steps, and the thickness of the paint is thicker than a regular paint job.  The plaintiff took the car to a body shop and spoke with someone about painting it.  Long story short, the painter painted the car once and found the paint was “lifting.”  This basically means the multiple layers of paint did not remain set.  The painter wiped all the paint off, started over, and saw the same thing happening again on the second paint job.  He spoke with the paint retailer about the problems with the paint, and the retailer recommended some additional steps.  After taking the additional steps, both the painter and the plaintiff were satisfied with the paint job.  The plaintiff took the car home and began to put the chrome back on himself.  While he was replacing the chrome, he found the paint was “soft” (as he described it); it began lifting again and curling around the chrome. 

PROCEDURE AND DISCOVERY: The plaintiff filed his lawsuit on November 23, 2010.  The Complaint alleged a products liability lawsuit against the paint manufacturer and retailer, including typical claims of strict liability, negligence, and breach of implied warranty of particular purpose.  The Complaint alleged every possible defect relating to the paint, but it was devoid of any allegation of negligence whatsoever against the painter.  The paint manufacturer was not properly served and was in default when I was retained to represent it.  I moved to set aside the default, and the court granted the motion based on the insufficiency of service of process. 

During discovery, we deposed the plaintiff, retailer, painter, and corporate representative for the manufacturer.  The plaintiff also named the painter as his expert witness, but he did not name any other expert with regard to paint manufacture or design.  If you follow this blog, you know I have blogged extensively about the necessity of expert witness testimony in a products liability case.  In a design defect case, South Carolina’s appellate courts have stated unequivocally that a plaintiff must provide expert testimony to sustain his burden of proof with regard to design defect.  

Recognizing the painter was not qualified to opine about paint chemistry or manufacturing process, I moved for summary judgment.  The basis of the motion was that if the court excluded the painter as an expert witness, then my client was entitled to summary judgment based on applicable South Carolina law.  The motion was denied, and the case was set for trial.  After attempting to resolve the case, we reached an impasse and decided to try the case. 

TRIAL: Plaintiff did not request a jury trial.  Therefore, on May 30, 2012 Judge Letitia Verdin presided over the one-day trial and heard testimony and argument.  The court heard testimony from the plaintiff and from his “expert,” the painter.  The court recognized the painter could not opine as to paint design or manufacture.  Therefore, the court limited his testimony to paint application and the steps he took to apply the paint at issue.  My cross examination of the plaintiff and his painter focused on the fact that this particular paint job requires certain steps, and discovery revealed that either (1) certain steps were not followed, or (2) they could not be accounted for by the painter or the plaintiff.  After testimony by the plaintiff and painter, the plaintiff rested his case.

At the directed verdict stage, I focused on the fact that res ipsa loquitor cannot serve as a basis for a products liability claim in South Carolina.  See, e.g., Watson v. Ford Motor Co., 389 S.C. 434, 452-53, 699 S.E.2d 169, 179 (2010) ("We also note that Respondents may not rely solely on the fact that an accident occurred to prove their products liability case under a negligence theory since South Carolina does not follow the doctrine of res ipsa loquitur.")).  In other words, there is substantial case law requiring that a plaintiff provide proof of defect (i.e., without speculating as to possible defects just because the product did not perform as intended). 

DISPOSITION:  After hearing the various motions, Judge Verdin granted a directed verdict for the paint manufacturer, but denied the retailer’s directed verdict motion.  The retailer opted not to present a defense, and Judge Verdin took his case under advisement.  She later decided in favor of the retailer, as well, and issued an Order on July 30, 2012 in which she rendered a defense verdict and dismissed the case in its entirety with prejudice.

GENERAL COMMENTS: I never understood why the painter was not named as a party in this case since he was the individual charged with actually applying the paint.  The application stage for this paint is critical because of the complexity of a candy paint job.  Be that as it may, the court recognized the evidentiary issues in this products liability case and issued a directed verdict because the plaintiff failed to sustain his burden of proof.

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

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

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

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

So, I decided to look this point up.  Generally, the admission of expert testimony is governed by South Carolina Rule of Evidence 702, which sets forth as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

This would clearly appear to apply to a products liability case.  After all, if a plaintiff is arguing that a product has a design or manufacturing defect, then articulating the nature of the defect would seem to fall outside the realm of ordinary lay knowledge. 

Two fairly recent cases affirmed my hunch.  I recently briefed 5-Star, Inc. v. Ford Motor Co.,  2011 WL 3568546 (Aug. 10, 2011 S.C. Ct. App.) and forgot that it addressed this issue.  5-Star involved allegations that a negligently designed speed control deactivation switch in a Ford truck caused a warehouse fire.  The South Carolina Court of Appeals set forth the following with regard to the necessity of expert testimony in a products liability case:

In order to gain more than this limited understanding of the operation of the switch, and in particular, in order to understand whether 5 Star met its burden of proving that the design of the switch was negligent in 1996, a jury, the trial court, and this court on appeal would need the benefit of expertise in several subjects that are not included in this record. In other words, this is precisely the type of “design defect claim” our supreme court recently stated “necessarily involve[s] sophisticated issues of engineering, technical science, and other complex concepts that are quintessentially beyond the ken of a lay person.” Watson, 389 S.C. at 444, 699 S.E.2d at 174. When the plaintiff in a product liability case bears the burden of proof as to any issue within a subject matter beyond the common knowledge and understanding of lay jurors, that plaintiff must present expert witness testimony in order to meet its burden. 389 S.C. at 445, 699 S.E.2d at 175 (“Expert testimony ... is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge.”).  Because 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.

Id. at *4 (emphasis added). 

The "Watson" case cited by the court is Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010).  Watson involved a vehicle rollover case where the plaintiff alleged the cruise control system and seatbelts were defective.  The court in Watson had this to say about expert testimony in a products liability case:

Expert testimony may be used to help the jury to determine a fact in issue based on the expert's specialized knowledge, experience, or skill and is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge. Stated differently, expert evidence is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge. Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge or may base his opinion on information made available before the hearing so long as it is the type of information that is reasonably relied upon in the field to make opinions. See Rule 703, SCRE. On the other hand, a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training. See Rules 602 and 701, SCRE.

389 S.C. at 445-46, 699 S.E.2d at 175 (empasis added).  The court applied this law to exclude certain expert testimony and reverse the jury's verdict against Ford in the trial court.

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

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

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New SC Products Liability Case: 5 Star, Inc. v. Ford Motor Co.

Recently, the South Carolina Court of Appeals issued its decision in 5 Star, Inc. v. Ford Motor Company.  You can find the opinion on page 120 here, and also here.  This is a negligent design defect case, and the court basically re-affirms that a negligence theory requires conduct evidence.

FACTUAL BACKGROUND: Plaintiff 5 Star, Inc. (“Plaintiff”) is a lawn maintenance/pressure washing company.  It bought a 1996 Ford F-250 pickup truck in February 2005.  In September 2005, Plaintiff’s owner parked the truck in a warehouse containing tractors, trailers, lawnmowers, and other business equipment.  Upon returning a couple of days later, Plaintiff’s owner discovered a fire had occurred.  Although there were no personal injuries, the truck was destroyed and the building and certain equipment was severely damaged.  Before the lawsuit and before Ford could inspect the truck, Plaintiff’s owner had the truck towed and crushed.

PROCEDURE: Plaintiff filed a products liability action against Ford Motor Co. ("Ford") alleging that negligence in the design of a speed control deactivation switch in the truck caused the fire.  Ford asked the circuit court to dismiss the case as a sanction for spoliation of evidence.  The circuit court declined but instructed the jury that it could draw a negative inference from Plaintiff’s actions.  Ford moved for a directed verdict at the close of Plaintiff’s case and at the end of trial, both of which were denied.  The case was submitted to the jury exclusively on the claim of negligent design.  The jury returned a verdict for $41,000 in actual damages.

ISSUE(S): (1) Whether the circuit court erred in declining to dismiss the action as a sanction for Plaintiff’s spoliation of evidence; (2) whether the circuit court erred in denying Ford’s motion for a directed verdict based on a lack of evidence that Ford was negligent in design of the speed control deactivation switch.

DISPOSITION: The court did not reach the question of whether the circuit court abused its discretion in ruling on the motion to dismiss based on spoliation, citing to Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591, 598 (1999) and its recognition that an appellate court need not address remaining issues when resolution of one issue is dispositive.  (See footnote 2).  With regard to denial of Ford’s directed verdict motion, the court reversed the jury verdict and entered judgment in favor of Ford.

RULES AND OPINION: In addition to the three elements common to all products liability claims, a plaintiff asserting a negligent design theory must prove that the defendant manufacturer’s conduct in designing the product breached its duty of due care.  Ford argued on appeal that Plaintiff failed to present such conduct evidence, or to present evidence that the product was in essentially the same condition as when it left the defendant (i.e., one of the three common elements).  (The court did not discuss whether the product was in essentially the same condition for the same reason that it did not address spoliation).

Instead, the court focused on Plaintiff’s failure to present evidence of negligent conduct in the design of the product on or before the time of manufacture.  The court elaborated on how a negligence theory is different in that “’[t]he focus [in a negligence action] is upon the action of the defendant.  The mere fact a product malfunctions does not demonstrate the manufacturer’s negligence.”  Quoting Sunvillas Homeowner’s Ass’n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct. App. 1990). 

Ford conceded the switch was defective.  However, Plaintiff was obligated to offer evidence that Ford’s conduct was negligent.  Plaintiff failed to offer any evidence of Ford’s conduct whatsoever.  Neither the City Fire Investigator witness nor Plaintiff’s cause and origin expert testified to any events at or before the manufacture of the truck and switch.  Furthermore, neither witness was qualified as an expert in automotive design or other expertise so as to enable them to offer opinions on whether Ford’s conduct was negligent.  The only other witness who could have provided conduct testimony was a desgn analysis engineer for Ford.  He was qualified as an a vehicle fire cause and origin expert, but he offered no conduct facts/opinions, and Plaintiff's counsel did not ask him any questions relating to Ford's conduct in designing the switch that occurred in 1996 or earlier.

In short, the court held that Plaintiff failed to present expert testimony to prove that Ford was negligent in its design of the switch in 1996.  Therefore, the circuit court erred in not directing a verdict in favor of Ford.  The court distinguished its opinion from the holding in Duncan v. Ford Motor Co., 285 S.C. 119, 128, 682 S.E.2d 877, 881 (Ct. App. 2009) because the plaintiff in Duncan presented expert testimony concerning Ford's conduct.  (See footnote 4). 

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Case Brief: Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010)

It has been awhile since I posted a Case Brief, so I thought I would provide one for Holst v. KCI Konecranes Int'l Corp, 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010).  I originally blogged about this case when it came out, and its opinion has now been published.  This is a crane accident case involving a "KCI rubber-tired gantry crane" at a terminal of the South Carolina State Ports Authority in Charleston, South Carolina.  I was not familiar with a "gantry crane" and how it differed from a regular crane, so I did the trusty google image search to see what came up.  I am glad that I did.  As you can see from one of the the pictures (below), it is different than your typical idea of a "crane."  (This picture is only intended to give you an idea of a "rubber-tired gantry crane" generally.  I have no idea if it is the make or model of the crane at issue).

The case has some good discussion about the necessity of alternative design in a design defect case.  There is also discussion of what the court looks at in terms of other manufacturers and industry standards when evaluating design, warnings, etc. 

FACTUAL BACKGROUND: Decedent was a checker at a terminal at the port in Charleston, South Carolina.  390 S.C. at 33, 699 S.E.2d at 718.  He was responsible for identifying containers needed for transport between the container yard and ships.  Id.  He would instruct crane operators to move and load the containers in the proper sequence.  Id. at 33-34, 699 S.E.2d at 718.  Decedent was killed when a crane operator lowered containers in an area where he was standing, crushing him.  Id. at 34, 699 S.E.2d at 718.

PROCEDURE: Plaintiff (decedent’s wife) filed suit alleging negligence, breach of warranty, and strict liability for defective design against the crane manufacturer.  390 S.C. at 34, 699 S.E.2d at 718.  The crane manufacturer moved for summary judgment, which was granted by the lower court.  Id. at 34-35, 699 S.E.2d at 718.  Plaintiff appealed.  Id.

ISSUE: Whether the circuit (trial) court erred in granting KCI's motion for summary judgment.

DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment.  390 S.C. at 44, 699 S.E.2d at 723.

OPINION: Plaintiff’s first argument was that the lower court improperly weighed conflicting testimony concerning product defect, compliance with industry standards, and comparisons of the crane to others on the market.  390 S.C. at 35-36, 699 S.E.2d at 719.  Plaintiff cited to the testimony of two experts (Dr. George Pearsall and Richard Leonard) to support that the crane operator did not have obstruction-free visibility and that the crane should have been equipped with a camera.  Id. at 36, 699 S.E.2d at 719.  Even so, both experts for plaintiff conceded that a camera would not eliminate a blind spot, they did not know of other manufacturers who utilized a camera, and the crane met industry standards/regulations.  Id.  Mr. Leonard testified that he had never seen a comparable model crane with greater visibility than the one at issue.  Id.  Because of a lack of evidence of alternative design or that a risk-utility test was conducted with regard to the crane by plaintiff’s experts, the court held that plaintiff could not establish the crane was defective and unreasonably dangerous as a matter of law.  Id. at 37, 699 S.E.2d at 719-20. 

With regard to compliance with industry standards, the court reviewed American Society of Mechanical Engineers standard B30.2-1.5.1(b) and International Organization for Standardization section 8566-1.  Id. at 37-38, 699 S.E.2d at 720.  The court affirmed that the manufacturer complied with these standards from the evidence and that the operator’s access to a telephone, intercom with a loudspeaker, and two-way radio also aided in his “view” of the load block so as to bring the crane into compliance with applicable standards.  Id.  Finally, the court affirmed that plaintiff’s experts failed to provide evidence that another crane was similar enough to the one at issue so as to provide proof that other cranes on the market had better visibility.  Id. at 38-39, 699 S.E.2d at 720. 

           

Plaintiffs also argued that the lower court applied an improper legal standard by basing its grant of summary judgment on the crane’s conformity with industry custom.  Id. at 39, 699 S.E.2d at 721.  The appellate court did not agree and noted that conformity with industry standards was only one factor considered by the trial court.  Id.

Plaintiff also argued that the lower court erred in applying inapplicable legal standards from certain Fourth Circuit Court of Appeals and South Carolina state court cases (i.e., Sexton By & Through Sexton v. Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991), Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977), and Bragg v. Hi-Ranger, Inc., 319 S.C. 531 462 S.E.2d 321 (Ct. App. 1995)). Id. at 40-42, 699 S.E.2d at 721-22.  The court distinguished each cited case on legal or factual grounds and ruled that the lower court did not err in relying on them.  Id.

Finally, the court addressed summary judgment on each of plaintiff’s claims (strict liability, negligence – defective design, and negligence – failure to warn).  Id. at 42-44, 699 S.E.2d at 722-23.  The court cited to its prior discussion as also applying to support dismissal of the strict liability claim.  Id. at 42, 699 S.E.2d at 722.  On the negligent design claim, the court focused on the superiority of the design of the crane in comparison to others, its compliance with applicable standards, and the fact that the blind spot could not be eliminated to support its holding that there was no material issue of fact.  Id. at 42-43, 699 S.E.2d at 722-23.  The court also found that the crane included proper warnings both in the Operator’s Manual and on the crane itself so as to support summary judgment on plaintiff’s negligent failure to warn claim.  Id. at 43-44, 699 S.E.2d at 723.  Affirmed.

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New SC Products Liability Case: Holst v. KCI Konecranes International Corporation

Yesterday, the South Carolina Court of Appeals affirmed summary judgment in Holst v. KCI Konecranes International Corporation, Opinion Number 4736 (Sept. 9, 2010), which can be found here. I have not yet read it in its entirety, but the case involved a man's death when he was crushed under some containers that were being stacked by a crane. The plaintiff alleged that the crane was defective because of visibility limitations from the crane's cab.

At the circuit level, KCI filed a motion for summary judgment on grounds that there were no genuine issues of material facts as to the claimed defective and unreasonably dangerous condition of the crane. KCI asserted asserted additional grounds for summary judgment including comparative negligence and assumption of the risk. In addition to visibility limitations, Holst proposed mounting a closed-circuit video camera on the edge of the crane's trolley as a feasible design alternative to increase the operator's visibility. Holst also argued KCI failed to warn crane users about the crane's sight limitations. The circuit court granted summary judgment, and determined Holst's defective design and failure to warn claims failed as a matter of law.

The Court of Appeals affirmed the decision, and a quick reading indicates that the Court focused on the failure of plaintiff's experts to incorporate the risk-utility test into their analysis. There is also discussion of industry standards, the fault analysis in a negligence theory, and plaintiff's warnings claim. I will try an get a brief up in the next few days, but this looks like an interesting case.

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Case Brief: Branham v. Ford Motor Co.

By Brian A. Comer

Below is a case brief of the South Carolina Supreme Court's August 16, 2010 decision in Branham v. Ford Motor Co. (first posted about here). This is not that "brief," but bear in mind that the majority opinion alone is about 25 pages and will probably be the new authority on products liability law in South Carolina for years to come.

FACTUAL BACKGROUND: Cheryl Hale ("Hale") purchased a used 1987 Ford Bronco II 4x2 in June of 1999. The vehicle was manufactured in 1986 and had 137,500 miles on it. On June 17, 2001, Hale was driving with her child in the passenger seat and Plaintiff Jesse Branham, III ("Plaintiff") in the backseat. No one was wearing a seatbelt. Hale turned to the backseat to ask the children to quiet down. When doing this, she veered toward the shoulder of the road and the right wheel left the roadway. She responded by overcorrecting to the left. The overcorrection led to the vehicle rolling over, and Plaintiff was thrown from the vehicle and injured.

PROCEDURE: Plaintiff filed a lawsuit against Ford and Hale in Hampton County. Plaintiff did not seriously pursue the case against Hale. The case against Ford was based on two product liability claims (a defective seatbelt sleeve claim and a "handling and stablility" design defect claim relating to the rollover). Both claims were pursued in negligences and strict liability. The jury awarded the plaintiff $16 million in actual damages and $15 million in punitive damages. Ford appealed the verdict pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

ISSUES: Ford raised issues on appeal relating to (i) the design defect claim (including whether negligence could survive if the trial court granted a directed verdict on strict liability, as well as the proper test for determining if a product is defective and unreasonably dangerous in a design defect claim), (ii) the admission of post-distribution evidence, evidence of other similar incidents, and use of certain evidence during closing arguments, as well as the format of the verdict form, and (iii) the excessiveness of actual and punitive damages. The Court also addressed the issue of the alignment of the parties.

DISPOSITION: Affirmed in part, reversed in part, and remanded for a new trial.

RULES AND OPINION: Set forth below is a summary of the Court's opinion, providing headings concerning the subject matter and primary holdings in bold-faced type.

Design Defect Claims

First, the Court held that the trial court erred in directing a verdict on Plaintiff's strict liability seatbelt claim, but not on the same claim brought in negligence. At trial, Plaintiff claimed that Ford was negligent in failing to adequately test the seatbelt sleeve, but did not challenge the seatbelt sleeve design. Plaintiff had also brought a companion strict liability claim. The trial court directed a verdict on the strict liablity claim, but not on the negligence claim. Because the two claims have common elements (namely, the requirement that the product be in a defective and unreasonably dangerous condition), Ford argued that the negligence claim should have also been dismissed. The Court agreed: "When an element common to multiple claims is not established, all related claims must fail." Whether or not the manufacturer was at fault -- the additional element required for a products liability claim brought pursuant to a negligence theory -- is not even reached if a plaintiff cannot prove the predicate element of defective and unreasonably dangerous condition of the product. The Court distinguished the Court of Appeals decision in Bragg v. Hi-Ranger on this issue and emphasized that the critical inquiry as to whether one of the claims survives (where the other is dismissed) is the grounds for the dismissal. Significantly, the Court also agreed with Ford's argument that there is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. If the product is not defective and unreasonably dangerous, then failure to test cannot be a proximate cause of an injury.

With regard to the "handling and stability" design defect claim, the Court did not find error in the trial court's submission of these design defect claims to the jury. In reaching this determination, the Court reviewed certain testimony by Plaintiff's expert Dr. Melvin Richardson, former Ford Vice President Thomas Feaheny, and certain internal Ford documents relied upon by Dr. Richardson. In short, the Court discussed the evolution of the Bronco II's suspension, including competing views by Ford engineers and Ford executives about the different suspension options, including the "MacPherson" suspension and the "Twin I-Beam" suspension. The testimony and evidence related to the stability of the vehicles while using alternative suspensions, how using the different suspension options would affect rollout of new models, how they would impact other features of the vehicle, and the procedures and motivations behind selecting certain suspension options. Dr. Richardson testified that from all of the evidence, the Bronco II was "dangerously unstable" when it was designed and built, and that no improvements were made to correct this defect. After reviewing the evidence that was presented, the Court agreed with the trial judge's determination that Plaintiff presented sufficient evidence of a design defect known to Ford at or prior to the date of manufacture to withstand a directed verdict motion.

Next, the Court disagreed with Ford's contention that Plaintiff failed to provide evidence of a reasonable alternative design pursuant to the risk-utility test, but agreed that South Carolina law requires a risk-utility test in design defect cases (to the exclusion of the consumer expectations test.) The Court reviewed the prior opinions summarizing the two tests in Claytor v. General Motors Corp., 277 S.C. 259, 262, 286 S.E.2d 129, 131 (1982) and Bragg v. Hi-Ranger, 319 S.C. 531, 543, 462 S.E.2d 321, 328 (Ct. App. 1995). [The two tests are summarized here, as stated in Bragg]. After reviewing the prior case law, the Court again reviewed the competing suspension options (summarized above) and believed that Plaintiff's focus on the Macpherson suspension was evidence of feasible alternative design. The Court stated that whether this alternative satisfied the risk-utility test was a jury question, but the evidence itself was sufficent to survive a directed verdict motion. The Court then held that "the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design." While the consumer expectations test fits well in manufacturing defect cases, the Court agreed with Ford that it is ill-suited in design defect cases. The Court noted that in 1974, South Carolina's Legislature adopted the Restatement (Second) of Torts section 402(A) (1965) and identified its comments as legislative intent in S.C. Code section 15-73-10 through 15-73-30. However, since this adoption, the Court noted that the American Law Institute has published the Restatement (Third) of Torts: Products Liability (1998), and that this edition moved away from the consumer expectations test for design defects, and toward the risk-utility test. The Court stated that it did not believe that the Legislature intended to foreclose court consideration of developments in products liability law. The Court noted that its approval of the risk-utility test in the Claytor case had not prompted a legislative response, and the overwhelming majority of jurisdictions now employ some form of the risk-utility test.

We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer's design. Conversely, we find the consumer expectations test and its focus on the consumer ill suited to determine whether a product's design is unreasonably dangerous.

The court reviewed prior cases in which there was an emphasis on showing a feasible alternative design in the context of a risk-utility analysis, including Claytor, Bragg, Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 176, 246 S.E.2d176, 178 (1978), Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868, 870 (Ct. App. 1990), and Gasque v. Heublein , Inc., 281 S.C. 278, 283, 315 S.E.2d 556, 559 (Ct. App. 1984). [A review of feasible alternative design law preceding Branham v. Ford Motor Co. can be found here]. The Court noted as follows:

The very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test.

The Court then cited to the Restatement (Third) of Torts: Products Liability section 2(b) (1998) and University of South Carolina Professor David Owen's article Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 Tex. L. Rev. 1661, 1687 (1997) to support the risk-utility test and reasonable alternative design (as a requirement of same). The Court stated that the core of the risk-utility balancing test is whether a product was made safe enough, but cautioned that it also adhered to its longstanding principle that just because a product can be made safer does not mean that the product is defective and unreasonably dangerous.

Evidentiary Issues Justifying

Reversal and Remand for New Trial

Notwithstanding the sufficiency of the evidence to withstand a directed verdict on the handling and stability design defect claim, the Court reversed and remanded the case for a new trial, citing three reasons.

First, Ford was prejudiced by Plaintiff's unrelenting pursuit of post-distribution evidence on the issue of liability. The Court reviewed South Carolina's requirement that a plaintiff must show the product was in a defective condition "'at the time that it left the hands of the particular seller.'" (quoting Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 131-32 (1982). Post-distribution evidence is "evidence of facts neither known nor available at the time of distribution." The Court again cited to Restatement (Third) of Torts: Products Liability section 2, cmt. a (1998) to support that assessing liability in a products liability claim requires evaluation of a manufacturer's decision based on what was known or "reasonably attainable" at the time of manufacture.

The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper.

The Court reviewed numerous examples of post-distribution evidence emphasized by Plaintiff at trial and through Dr. Richardson to support a higher rollover tendency of the Bronco II t(evidence hat came to light after manufacture). The Court found this evidence to be prejudicial and stated that "the law should encourage manufacturers to continue to improve their products in terms of utility and safety free from prior design decisions judged through the lens of hindsight."

Second, the trial court agreed that admission of certain post-distribution "other incident" evidence was prejudicial to Ford, but also ruled against Ford on certain pre-manufacture "other incident" evidence. The Court surveyed South Carolina's law that similar accidents are admissible if the tend to prove or disprove some fact in dispute. However, the Court noted that it need not even address whether certain post-distribution evidence admitted into evidence was "substantially similar." "The post-manufacture evidence of purported similar incidents was error, even if the 'substantially similar' threshold was met." The Court reiterated that post-manufacture evidence of similar incidents is not admissible to provide liability. The Court then reviewed the pre-manufacture rollover data introduced by Plaintiff with regard to the Bronco II and other vehicles in the same class. The Court disagreed with Ford's contention that the pre-manufacture comparative evidence of rollover accidents violated the "substantially similar" test articulated in Whaley v. CSX Transportation, Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005) and revisited in Watson v. Ford Motor Co., Op. No. 26786 (S.C. Sup. Ct. filed Mar. 15, 2010) (Shearouse Adv. Sh. No. 10 at 37). Even though there was no showing that the cause of the other accidents was similar to the Plaintiff's rollover accident, the Court found that the rate of rollover of the Bronco II compared to other vehicles was relevant to whether the Bronco II had an unreasonably dangerous tendency to rollover. The Court was not persuaded by Ford's arguments that many accidents may be attributable to inexperienced or impaired drivers, or that Hale's inattention was the cause of the accident.

Third, Plaintiff's counsel's closing argument was designed to inflame and prejudice the jury. The Court provided six different examples of excerpts from the closing argument that served as examples of its inflammatory and prejudicial content. The Court also noted that much of the argument was based on inadmissible evidence.

Next, in light of the remand for a new trial, (and without addressing whether it was prejudicial to Ford) the Court held that the trial court's requirement that jthe ury apportion liability between Ford and Hale on the verdict form was error. Because the accident occurred in 2001, Ford and Hale were joint tortfeasors, meaning that they were jointly and severably responsible for all damages. Therefore, there could be no apportionment of fault. The Court noted that that it had reaffirmed the applicability of joint and several liability among joint tortfeasors since adopting the doctrine of comparative negligence. The Court further rejected the trial court's rationale that the apportionment was necessary to ensure that any punitive damages award was based on negligence, and not strict liability (for which punitive damages are not recoverable, discussed here).

Excessiveness of Damages Issues Raised by Ford

Next, the Court addressed the jury's award of $16 million in actual damages and $15 million in punitive damages. In light of the remand for a new trial, the Court found it unnecessary to resolve Ford's claim that the actual damages award was grossly excessive.

With regard to punitive damages, the Court found that the issue was properly submitted to the jury, but agreed that the award could not withstand constitutional scrutiny. Because of the new trial, the Court addressed Plaintiff's reliance on "harm to others" in the closing argument. A central theme of the closing argument was that the jury should punish Ford for harming all Bronco II rollover victims. The trial court charged the jury not to punish Ford for other "conduct." The Court found that this charge violated the "harm to others" prohibition because by focusing on conduct, as opposed to harm to Plaintiff, the charge invited the jury to punish Ford for all Bronco rollover deaths and injuries, which is forbidden by Durham v. Vinson, 360 S.C. 639, 653, 602 S.E.2d 760, 767 (2004) and Philip Morris USA v. Williams, 549 U.S. 346, 350, 353 (2007).

With regard to financial data, the Court stated that South Carolina upholds that the wealth of a defendant is a relevant factor in assessing punitive damages. The Court reviewed Plaintiff counsel's focus on extrapolating financial data in such a manner so as to break it down in terms of daily income, hourly income, etc. Although prior opinions have not found abuse of discretion in the admission of per day earnings of a defendant, the Court believed that evidence of "net worth" appears to be the safest harbor and directed that the retrial be confined to such evidence. The Court also found that the Plaintiff's introduction Ford's senior management compensation (including salaries, bonuses, stock options, etc.) to be error and highly prejudicial.

Alignment of Parties

Finally, the Court addressed Ford's claim that the trial court should have realigned Hale as a plaintiff. Although the Court did not find that this issue was preserved for review, it addressed it "in the hope that our speaking to the matter will aid the bench and the bar." The Court reviewed the evidence at trial to support that Hale sat on the plaintiff's side during the trial and only cross examined one witness for Plaintiff (and the sole question to Plaintiff's economic expert was, "How many millions are in a billion?"). The Court concluded that the only bona fide defendant in the case was Ford. The Court reviewed Rule 21 of the South Carolina Rules of Civil Procedure and its federal counterpart, as well as federal and state authority interpreting them. From this review, the Court adopted the rule that trial court's have the authority to realign parties "at any state of the action." It is within the sound discretion of the trial court and will not be disturbged on appeal absent a showing of an abuse of discretion and resulting prejudice.

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