By Brian A. Comer
The South Carolina Court of Appeals issued a decision yesterday in Duncan v. Ford Motor Company. Ford appealed a jury award of approximately $589,722 in actual damages and $3 million in punitive damages against Ford. The court affirmed the lower court decision and award. I haven't read through this case line by line yet, but there appears to be a great deal in the opinion concerning expert witness qualifications, use of hypotheticals by experts, cross examination of experts, admissibility of recalls, and punitive damages. You can find the decision here.
I will post a brief in the next couple of days, but wanted to give readers the heads-up of the decision.
Friday, August 14, 2009
Sunday, August 9, 2009
Case Brief: Weston v. Kim's Dollar Store
By Brian A. Comer
NOTICE: PLEASE SEE BOTH BRIEFS BELOW. THE FIRST BRIEF IS OF THE SOUTH CAROLINA COURT OF APPEALS DECISION ISSUED JULY 15, 2009.
THE SOUTH CAROLINA SUPREME COURT GRANTED A WRIT OF CERTIORARI TO REVIEW THE COURT OF APPEALS DECISION, AND IT ISSUED ITS DECISION ON AUGUST 8, 2012. THE BRIEF FOR THAT CASE FOLLOWS FURTHER BELOW.
SOUTH CAROLINA COURT OF APPEALS CASE BRIEF
This case brief is of the July 15, 2009 South Carolina Court of Appeals decision, Monica Weston v. Kim's Dollar Store and CIBA Vision, a division of Novartis Company. It is currently only available as a slip opinion. When it is published, I will try and circle back around to drop in the reporter citations. This case is noteworthy because a South Carolina court assesses whether state tort claims are preempted by federal law in the context of a medical device case.
FACTUAL BACKGROUND: Plaintiff purchased two pairs of contacts manufactured by Defendant CIBA Vision ("CIBA") from Defendant Kim's Dollar Store ("Kim's"). Plaintiff had no prescription for the "prescription only" lenses. Plaintiff was given no instructions for usage of the lenses, and she was not informed of the need for a prescription. After wearing the contact lenses, Plaintiff developed an eye infection that caused her to temporarily lose vision in her left eye.
PROCEDURE: Plaintiff brought suit against Defendants alleging six causes of action:(1) negligence per se for selling misbranded contact lenses; (2) negligence in the manufacture, sale and/or distribution of contact lenses, and in failing to provide adequate warnings and instructions; (3) breach of implied warranty of merchantability and fitness because the lenses were not safely labeled; (4) strict liability for placing defectively labeled products into the stream of commerce; (5) sale of a defective product due to inadequate warnings; and (6) violation of the South Carolina Unfair Trade Practices Act by committing an unfair or deceptive act or practice, including inadequate labeling and warnings, in the conduct of trade or commerce. CIBA moved for summary judgment on the basis that the majority of Plaintiff's claims were subject to federal preemption pursuant to the Medical Device Amendments of 1976 ("MDA") to the Federal Food, Drug, and Cosmetic Act ("FDCA"). The circuit court granted CIBA's motion and found that CIBA was entitled to summary judgment on the basis of federal preemption on all actions depending on warning, labeling, design, marketing, misbranding, or other similar claims. The circuit court stated that CIBA could file additional motions to test the viability of the remaining causes of action, and the circuit court restricted Plaintiff from pursuing additional discovery on the aforementioned topics.
ISSUES: "[Plaintiff argue[d] the circuit court erred in granting summary judgment because (1) the circuit court lacked jurisdiction to determine whether the contact lenses at issue were federally regulated medical devices, (2) a genuine issue of material fact existed, and (3) there was neither a showing nor a finding that any South Carolina law conflicted with federal law."
DISPOSITION: The South Carolina Court of Appeals affirmed the decision of the circuit court.
RULES AND OPINION: With regard to the first issue, the court found that the circuit court properly interpreted federal statutes to determine whether the MDA preempted South Carolina law in this matter. "' The interpretation of a statute is a question of law for the [c]ourt.'" (Quoting In re Campbell, 379 S.C. 593, 599, 666 S.E.2d 908, 910-11(2008)). Tort claims are within the jurisdiction of the circuit court, and "[w]hen federal law seats exclusive jurisdiction over a particular type of claim in the federal courts, South Carolina courts must examine the federal law to determine whether it preempts state law." (Citing McCullar v. Estate of Campbell, 381 S.C. 205, 206, 672 S.E.2d 784, 784 (2009), and Griggs v. S.C. Elec. & Gas Co., 320 S.C. 127, 129, 463 S.E.2d 608, 609 (1995)). The circuit court did not err in interpreting the federal law because doing so is an essential step in determining whether the federal law preempts the state law.
With regard to the second issue, the court found that the circuit court correctly concluded no genuine issue existed as to whether CIBA's contacts were federally regulated as medical devices. The court reviewed the history of medical device and contact lense regulation, as well as the standard for summary judgment. From the evidence, the contact lenses fit the FDCA's definition of a "device," and CIBA presented uncontradicted evidence that the lenses were Class III medical devices subject to and approved by the FDA pursuant to the pre-market approval process. This evidence included:
This post is subject to the Disclaimer & Terms of Use of this website.
NOTICE: PLEASE SEE BOTH BRIEFS BELOW. THE FIRST BRIEF IS OF THE SOUTH CAROLINA COURT OF APPEALS DECISION ISSUED JULY 15, 2009.
THE SOUTH CAROLINA SUPREME COURT GRANTED A WRIT OF CERTIORARI TO REVIEW THE COURT OF APPEALS DECISION, AND IT ISSUED ITS DECISION ON AUGUST 8, 2012. THE BRIEF FOR THAT CASE FOLLOWS FURTHER BELOW.
SOUTH CAROLINA COURT OF APPEALS CASE BRIEF
This case brief is of the July 15, 2009 South Carolina Court of Appeals decision, Monica Weston v. Kim's Dollar Store and CIBA Vision, a division of Novartis Company. It is currently only available as a slip opinion. When it is published, I will try and circle back around to drop in the reporter citations. This case is noteworthy because a South Carolina court assesses whether state tort claims are preempted by federal law in the context of a medical device case.
FACTUAL BACKGROUND: Plaintiff purchased two pairs of contacts manufactured by Defendant CIBA Vision ("CIBA") from Defendant Kim's Dollar Store ("Kim's"). Plaintiff had no prescription for the "prescription only" lenses. Plaintiff was given no instructions for usage of the lenses, and she was not informed of the need for a prescription. After wearing the contact lenses, Plaintiff developed an eye infection that caused her to temporarily lose vision in her left eye.
PROCEDURE: Plaintiff brought suit against Defendants alleging six causes of action:(1) negligence per se for selling misbranded contact lenses; (2) negligence in the manufacture, sale and/or distribution of contact lenses, and in failing to provide adequate warnings and instructions; (3) breach of implied warranty of merchantability and fitness because the lenses were not safely labeled; (4) strict liability for placing defectively labeled products into the stream of commerce; (5) sale of a defective product due to inadequate warnings; and (6) violation of the South Carolina Unfair Trade Practices Act by committing an unfair or deceptive act or practice, including inadequate labeling and warnings, in the conduct of trade or commerce. CIBA moved for summary judgment on the basis that the majority of Plaintiff's claims were subject to federal preemption pursuant to the Medical Device Amendments of 1976 ("MDA") to the Federal Food, Drug, and Cosmetic Act ("FDCA"). The circuit court granted CIBA's motion and found that CIBA was entitled to summary judgment on the basis of federal preemption on all actions depending on warning, labeling, design, marketing, misbranding, or other similar claims. The circuit court stated that CIBA could file additional motions to test the viability of the remaining causes of action, and the circuit court restricted Plaintiff from pursuing additional discovery on the aforementioned topics.
ISSUES: "[Plaintiff argue[d] the circuit court erred in granting summary judgment because (1) the circuit court lacked jurisdiction to determine whether the contact lenses at issue were federally regulated medical devices, (2) a genuine issue of material fact existed, and (3) there was neither a showing nor a finding that any South Carolina law conflicted with federal law."
DISPOSITION: The South Carolina Court of Appeals affirmed the decision of the circuit court.
RULES AND OPINION: With regard to the first issue, the court found that the circuit court properly interpreted federal statutes to determine whether the MDA preempted South Carolina law in this matter. "' The interpretation of a statute is a question of law for the [c]ourt.'" (Quoting In re Campbell, 379 S.C. 593, 599, 666 S.E.2d 908, 910-11(2008)). Tort claims are within the jurisdiction of the circuit court, and "[w]hen federal law seats exclusive jurisdiction over a particular type of claim in the federal courts, South Carolina courts must examine the federal law to determine whether it preempts state law." (Citing McCullar v. Estate of Campbell, 381 S.C. 205, 206, 672 S.E.2d 784, 784 (2009), and Griggs v. S.C. Elec. & Gas Co., 320 S.C. 127, 129, 463 S.E.2d 608, 609 (1995)). The circuit court did not err in interpreting the federal law because doing so is an essential step in determining whether the federal law preempts the state law.
With regard to the second issue, the court found that the circuit court correctly concluded no genuine issue existed as to whether CIBA's contacts were federally regulated as medical devices. The court reviewed the history of medical device and contact lense regulation, as well as the standard for summary judgment. From the evidence, the contact lenses fit the FDCA's definition of a "device," and CIBA presented uncontradicted evidence that the lenses were Class III medical devices subject to and approved by the FDA pursuant to the pre-market approval process. This evidence included:
- FDA approval letters that set forth the appropriate warnings and regulations pertaining to the lenses.
- Expert testimony that CIBA always treated the contact lenses as medical devices and that they were always approved through the pre-market approval process.
- The "Rx only" symbol on the packaging substantiated that the contact lenses at issue were medical devices that should only be sold pursuant to prescription.
- The contacts included a package insert that was drafted by CIBA and reviewed and approved by the FDA.
- There was evidence that he contact lenses had medical or therapeutic purposes (e.g., ultra-violet radiation protection).
With regard to the third issue, the court found that any jury verdict imposing different requirements than the federal law would constitute an impermissible conflicting state law. Having found that the contact lenses were subject to FDA regulation as Class III medical devices, the court had to assess whether Plaintiffs' claims were subject to federal preemption, thereby entitling CIBA to judgment as a matter of law. "Whether a federal statute preempts state law is a question of law for the court to decide." (Citing Campbell, 379 S.C. at 599, 666 S.E.2d at 910-11). Pre-market approval of a medical device by the FDA results in device-specific requirements that preempt inconsistent state requirements, including those sought to be imposed through tort claims.
Specifically, the MDA prohibits States from imposing on devices intended for human use "any requirement (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter."
(Quoting 21 U.S.C.A. section 360k(a)). This clause has been read to extend to attempts to impose state tort liability. The court found that the circuit court correctly applied the doctrine of federal preemption because "a jury's acceptance of the disputed claims could result in different or additional requirements from the federal requirements. . . . This is not permissible." The court reasoned that such jury findings would be in addition to or contrary to to federal requirements. Therefore, the circuit court correctly granted summary judgment on all actions dependent on warning, labeling, design, marketing, misbranding, or similar claims.
SOUTH CAROLINA SUPREME COURT CASE BRIEF
FACTUAL BACKGROUND: Plaintiff purchased a pair of prescription decorative, colored contact lenses without a prescription from Defendant Kim's Dollar Store, an unauthorized seller. Defendant CIBA Vision manufactured the lenses. Plaintiff developed an eye infection, resulting in loss of vision in her left eye.
PROCEDURE: Plaintiff brought an action against Kim's Dollar Store and CIBA Vision. The trial court granted partial summary jdugment in CIBA's favor as to three of six causes of action based on federal preemption. The South Carolina Court of Appeals affirmed, and the South Carolina Supreme Court granted certiorari.
ISSUES: On certiorari, Plaintiff conceded the lenses she purchased were Class III medical devices but argued her claims were not preempted because CIBA failed to show the lenses were approved by the Food and Drug Administration ("FDA") through the pre-market approval ("PMA") process.
DISPOSITION: The court found the lenses were approved through the PMA process and affirmed the court of appeals to the extent partial summary judgment was granted on claims that would impose common-law requirements "different from, or in addition to" applicable FDA requirements. As to the remaining causes of action, it remanded the matter for further proceedings consistent with the opinion.
RULES AND OPINION: The court reviewed briefly the factual and procedural history set forth in greater detail in the court of appeals decision. (See case brief above). The court stated that the sole issue before it was Plaintiff's claim that a genuine issue of material fact exists as to whether the lenses were subject to FDA approval through the PMA process.
After reviewing the standard for granting summary judgment, the court provided its analysis. Congress provided an express preemption provision in the Medical Device Amendments of 1976 ("MDA"). Citing to National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012), the court emphasized that the United States Supreme Court has held that express preemption provisions should be construed broadly, and the decision was instructive with regard to how to construe express preemption provisions where the federal regulatory scheme at issue does not contain a saving clause.
After reviewing the applicable law in Riegel v. MEdtronic, Inc., 552 U.S. 312, 322 (2008) concerning the device-specific requirements contemplated by the MDA and the PMA process, the court set forth the process to follow in a preemption inquiry. The first step is to determine whether the federal government has established requirements applicable to the device through the PMA process. If so, the next step is to determine whether state common-law claims paralellel the federal requirements. If so, the state claim is not preempted. However, if the state common-law claims are "different from or in addition to" the federal requirements (as outlined in Riegel), then the state claim is preempted.
The court found there was no genuine issue of material fact that the lenses purchased by Plaintiff were subject to device-specific federal requirements by virtue of the PMA process. Prior correspondence between CIBA and the FDA established that the lenses went through the PMA process and were approved, triggering express preemption. On the second question in the inquiry, the court referenced Plaintiff's claim that CIBA knew or should have known its lenses were being marketed and sold unlawfully without a prescription and by unauthorized sellers.
The court reviewed the trial court's grant of summary judgment and vacated any summary judgment granted with regard to negligence. CIBA’s counsel conceded that negligence survived summary judgment. The court also held that any grant of summary judgment based on sufficiency of FDA-approved requirements imposed by PMA process was proper. Requirements different from or in addition to them are preempted, and any claim that is parallel may proceed.
The court noted that it could not be more specific with regard to claims that survived summary judgment due to lack of specificity in that court order. Therefore, it affirmed partial grant of summary judgment to the extent it was granted on claims that would impose common law requirements “different from, or in addition to” applicable FDA requirements.
SOUTH CAROLINA SUPREME COURT CASE BRIEF
FACTUAL BACKGROUND: Plaintiff purchased a pair of prescription decorative, colored contact lenses without a prescription from Defendant Kim's Dollar Store, an unauthorized seller. Defendant CIBA Vision manufactured the lenses. Plaintiff developed an eye infection, resulting in loss of vision in her left eye.
PROCEDURE: Plaintiff brought an action against Kim's Dollar Store and CIBA Vision. The trial court granted partial summary jdugment in CIBA's favor as to three of six causes of action based on federal preemption. The South Carolina Court of Appeals affirmed, and the South Carolina Supreme Court granted certiorari.
ISSUES: On certiorari, Plaintiff conceded the lenses she purchased were Class III medical devices but argued her claims were not preempted because CIBA failed to show the lenses were approved by the Food and Drug Administration ("FDA") through the pre-market approval ("PMA") process.
DISPOSITION: The court found the lenses were approved through the PMA process and affirmed the court of appeals to the extent partial summary judgment was granted on claims that would impose common-law requirements "different from, or in addition to" applicable FDA requirements. As to the remaining causes of action, it remanded the matter for further proceedings consistent with the opinion.
RULES AND OPINION: The court reviewed briefly the factual and procedural history set forth in greater detail in the court of appeals decision. (See case brief above). The court stated that the sole issue before it was Plaintiff's claim that a genuine issue of material fact exists as to whether the lenses were subject to FDA approval through the PMA process.
After reviewing the standard for granting summary judgment, the court provided its analysis. Congress provided an express preemption provision in the Medical Device Amendments of 1976 ("MDA"). Citing to National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012), the court emphasized that the United States Supreme Court has held that express preemption provisions should be construed broadly, and the decision was instructive with regard to how to construe express preemption provisions where the federal regulatory scheme at issue does not contain a saving clause.
After reviewing the applicable law in Riegel v. MEdtronic, Inc., 552 U.S. 312, 322 (2008) concerning the device-specific requirements contemplated by the MDA and the PMA process, the court set forth the process to follow in a preemption inquiry. The first step is to determine whether the federal government has established requirements applicable to the device through the PMA process. If so, the next step is to determine whether state common-law claims paralellel the federal requirements. If so, the state claim is not preempted. However, if the state common-law claims are "different from or in addition to" the federal requirements (as outlined in Riegel), then the state claim is preempted.
The court found there was no genuine issue of material fact that the lenses purchased by Plaintiff were subject to device-specific federal requirements by virtue of the PMA process. Prior correspondence between CIBA and the FDA established that the lenses went through the PMA process and were approved, triggering express preemption. On the second question in the inquiry, the court referenced Plaintiff's claim that CIBA knew or should have known its lenses were being marketed and sold unlawfully without a prescription and by unauthorized sellers.
The court reviewed the trial court's grant of summary judgment and vacated any summary judgment granted with regard to negligence. CIBA’s counsel conceded that negligence survived summary judgment. The court also held that any grant of summary judgment based on sufficiency of FDA-approved requirements imposed by PMA process was proper. Requirements different from or in addition to them are preempted, and any claim that is parallel may proceed.
The court noted that it could not be more specific with regard to claims that survived summary judgment due to lack of specificity in that court order. Therefore, it affirmed partial grant of summary judgment to the extent it was granted on claims that would impose common law requirements “different from, or in addition to” applicable FDA requirements.
Monday, August 3, 2009
SC Products Case in Recent Advance Sheets
By Brian A. Comer
Okay, in settling into a new firm and a lot going on the last couple of weeks, I let a products decision pass me by.
The July 20, 2009 edition of the Advance Sheets included Weston v. Kim's Dollar Store and CIBA Vision. From a quick skim of the case, it is a contact lense/medical device case that focuses on preemption.
A brief is forthcoming in the next couple of days, but I just wanted to spread the information. The link for the July 27, 2009 Advance Sheets is here, and the case is on page 98.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Okay, in settling into a new firm and a lot going on the last couple of weeks, I let a products decision pass me by.
The July 20, 2009 edition of the Advance Sheets included Weston v. Kim's Dollar Store and CIBA Vision. From a quick skim of the case, it is a contact lense/medical device case that focuses on preemption.
A brief is forthcoming in the next couple of days, but I just wanted to spread the information. The link for the July 27, 2009 Advance Sheets is here, and the case is on page 98.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, July 22, 2009
The Basics: Successor Liability in Products Liability Actions
By Brian A. Comer
As I have begun settling in with my new law firm, I have received a couple of case files that have successor liability issues in the products liability arena. Therefore, it seemed like a good topic for a quick blog entry to summarize this area of the law.
A former colleague of mine, Tim Orr, wrote an excellent article for South Carolina Lawyer in the March 2006 edition that fully summarizes this area of the law, and I would highly recommend the article for anyone with a products liability successor liability issue. The article is aptly titled "Successor Liability" and fully analyzes this area of the law. It also provided me with a great primer for a conference call with a client today.
In a nutshell, Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 622 S.E.3d 213 (2005) addressed this issue in a certified question from the United States District Court. The court stated as follows:
As I am learning, it is critical to examine the transaction documents at issue in a successor liability case to determine if the purchasing entity intended to assume the seller's liabilities. This can also become a "form versus substance" issue where the purchasing company is merely a continuation of the predecessor, i.e., it has a "common identity" of the officers, directors and stockholders between the predecessor and successor. In such cases, a court may find that the owners and directors of a company merely dissolved the company and formed a new one to avoid the prior debts and liabilities. In such cases, the "mere continuation" exception may apply to make the successor company liable.
I will try to profile each of these exceptions in future blog entries, but the above serves as "the basics" for now.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
As I have begun settling in with my new law firm, I have received a couple of case files that have successor liability issues in the products liability arena. Therefore, it seemed like a good topic for a quick blog entry to summarize this area of the law.
A former colleague of mine, Tim Orr, wrote an excellent article for South Carolina Lawyer in the March 2006 edition that fully summarizes this area of the law, and I would highly recommend the article for anyone with a products liability successor liability issue. The article is aptly titled "Successor Liability" and fully analyzes this area of the law. It also provided me with a great primer for a conference call with a client today.
In a nutshell, Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 622 S.E.3d 213 (2005) addressed this issue in a certified question from the United States District Court. The court stated as follows:
[I]n the absence of statute, a successor or purchasing company ordinarily is not liable for the debts of a predecessor or selling company unless (1) there was an agreement to assume such debts, (2) the circumstances surrounding the transaction warrants [sic] a finding of a consolidation or merger of the two corporations, (3) the successor company was a mere continuation of the predecessor, or (4) the transaction was entered into fraudulently for the purpose of wrongfully defeating creditors’ claims.Id. at 312, 622 S.E.2d at 215 (quoting Brown v. Am. Ry. Express Co., 128 S.C.428, 123 S.E. 97 (1924). Simmons is significant because it adopted the court's opinion in the commercial case of Brown v. Am. Ry. Express Co. and extends the test applied by the Brown court for successor liability to all products liability actions. Adoption of these four exceptions aligns South Carolina with the majority of states that have adopted these same four exceptions. As of the date of Tim's article, he cites to 30 states that have also retained an applied these exceptions in the products liability setting. See Tim Orr, Successor Liability, March 2006 edition of South Carolina Lawyer, at 35.
As I am learning, it is critical to examine the transaction documents at issue in a successor liability case to determine if the purchasing entity intended to assume the seller's liabilities. This can also become a "form versus substance" issue where the purchasing company is merely a continuation of the predecessor, i.e., it has a "common identity" of the officers, directors and stockholders between the predecessor and successor. In such cases, a court may find that the owners and directors of a company merely dissolved the company and formed a new one to avoid the prior debts and liabilities. In such cases, the "mere continuation" exception may apply to make the successor company liable.
I will try to profile each of these exceptions in future blog entries, but the above serves as "the basics" for now.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, July 15, 2009
Case Brief: Allen v. Long Mfg. NC, Inc.
Today's case brief is of Allen v. Long, Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354 (Ct. App. 1998). This is a warnings case, and it is significant because it discusses the adequacy of warnings, rejects that compliance with industry standards is conclusive evidence of adequacy, and establishes the heeding presumption in South Carolina.
FACTUAL BACKGROUND: Otis Allen, Sr. ("Allen") was using a portable grain auger to load grain onto a grain drill. 332 S.C. at 424, 505 S.E.2d at 355. The auger's center of gravity could change when grain was conveyed to the top of the auger without replacing the material at the bottom (which kept it stable and prevented it from becoming top heavy). Id. Allen was standing beneath the auger's discharge end when it became unstable and struck him in the head, killing him. Id. He had not anchored the lower end or supported the discharge end. Id. The auger contained a warning label with the word "CAUTION" preceding eleven different instructions. 332 S.C. at 425, 505 S.E.2d at 356.
PROCEDURE: Allen's estate ("Plaintiff") brought a wrongful death and pain and suffering action against Defendant Long Mfg. NC, Inc. ("Long", the manufacturer of the auger) and Glen Kinard, the auger's owner. 332 S.C. at 424-25, 505 S.E.2d at 355. The theories of recovery were strict liability and negligence. Id. at 424, 505 S.E.2d at 355. The trial court granted Long's motion for summary judgment. Id. Plaintiff appealed to the South Carolina Court of Appeals.
ISSUES: The questions on appeal were whether genuine issues of material fact existed regarding (1) whether the auger was in a "defective condition unreasonably dangerous" to Allen, (2) whether Long breached its duty of care by failing to provide an adequate warning, and (3) whether Allen's failure to follow the warning was the proximate cause of his injuries. 332 S.C. at 425-26, 505 S.E.2d at 356.
DISPOSITION: The Court of Appeals reversed the trial court's grant of summary judgment. 332 S.C. at 426, 505 S.E.2d at 356. It found that the sufficiency of the auger's warnings was a question of fact for the jury. Id.
RULES AND OPINION: With regard to whether the auger was in a defective condition, unreasonably dangerous to the user, the court pointed out that "[i]f a warning is given which, if followed, makes the product safe for use, the product cannot be deemed defective or unreasonably dangerous." 332 S.C. at 427, 505 S.E.2d at 357 (citing Restatement (Second) of Torts section 402A cmt. j (1965)). Whether a warning is adequate is a question of fact for the jury as long as evidence has been presented that the warning was not adequate. Id. at 428, 505 S.E.2d at 357. Plaintiff's expert provided testimony regarding the auger's warning that created a genuine issue of material fact. 332 S.C. at 429, 505 S.E.2d at 358. There was nothing in the auger's warnings to explain that the machine's center of gravity could change as it emptied. Id. Furthermore, the court disagreed with the trial court's interpretation of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1996) as establishing that a warning is adequate as a matter of law if it complies with industry standards. 332 S.C. at 430-31, 505 S.E.2d at 358-59 ("We reject this principle as unsound since it would allow the industry to set its own standard of safety, a proposition which finds no support from other jurisdictions, and which is antithetical to the underlying premise of strict liability."). Finally, the court stated that it need not address whether a feasible design alternative must be presented to survive summary judgment. Id. at 431, 505 S.E.2d at 359. The court agreed that Plaintiff failed to present a factual issue on this point, but it concluded that the court erred in ruling upon it because Long conceded that the auger required a warning to be made safe. Id. This concession foreclosed Plaintiff's argument that the auger could have been redesigned to be made safer and rendered the trial court's holding moot. Id. at 431-32, 505 S.E.2d at 359.
With regard to Long's duty of care, the court reversed the trial court's determination that Long satisfied its duty of care because its determination was premised on the legal adequacy of the auger's warning, which the Court of Appeals (supra) held was an issue of fact for the jury. Id. at 432, 505 S.E.2d at 359.
Finally, the court reversed the trial court's finding that the Plaintiff failed to introduce evidence of causation. 332 S.C. at 432-33, 505 S.E.2d at 359-60. At trial, Long successfully argued that Allen's failure to heed the auger's warning was the proximate cause of his injuries because Plaintiff's expert stated that if Allen had followed the warnings, the accident would not have occurred. Id. at 432, 505 S.E.2d at 359-60. The court stated that when an adequate warning is given, the manufacturer may assume that it will be heeded by the product user. Id. at 432-33, 505 S.E.2d at 360. However, the testimony by Plaintiff's expert created a factual issue as to whether a different, adequate warning could have changed Allen's conduct. Id. at 433, 505 S.E.2d at 360.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
FACTUAL BACKGROUND: Otis Allen, Sr. ("Allen") was using a portable grain auger to load grain onto a grain drill. 332 S.C. at 424, 505 S.E.2d at 355. The auger's center of gravity could change when grain was conveyed to the top of the auger without replacing the material at the bottom (which kept it stable and prevented it from becoming top heavy). Id. Allen was standing beneath the auger's discharge end when it became unstable and struck him in the head, killing him. Id. He had not anchored the lower end or supported the discharge end. Id. The auger contained a warning label with the word "CAUTION" preceding eleven different instructions. 332 S.C. at 425, 505 S.E.2d at 356.
PROCEDURE: Allen's estate ("Plaintiff") brought a wrongful death and pain and suffering action against Defendant Long Mfg. NC, Inc. ("Long", the manufacturer of the auger) and Glen Kinard, the auger's owner. 332 S.C. at 424-25, 505 S.E.2d at 355. The theories of recovery were strict liability and negligence. Id. at 424, 505 S.E.2d at 355. The trial court granted Long's motion for summary judgment. Id. Plaintiff appealed to the South Carolina Court of Appeals.
ISSUES: The questions on appeal were whether genuine issues of material fact existed regarding (1) whether the auger was in a "defective condition unreasonably dangerous" to Allen, (2) whether Long breached its duty of care by failing to provide an adequate warning, and (3) whether Allen's failure to follow the warning was the proximate cause of his injuries. 332 S.C. at 425-26, 505 S.E.2d at 356.
DISPOSITION: The Court of Appeals reversed the trial court's grant of summary judgment. 332 S.C. at 426, 505 S.E.2d at 356. It found that the sufficiency of the auger's warnings was a question of fact for the jury. Id.
RULES AND OPINION: With regard to whether the auger was in a defective condition, unreasonably dangerous to the user, the court pointed out that "[i]f a warning is given which, if followed, makes the product safe for use, the product cannot be deemed defective or unreasonably dangerous." 332 S.C. at 427, 505 S.E.2d at 357 (citing Restatement (Second) of Torts section 402A cmt. j (1965)). Whether a warning is adequate is a question of fact for the jury as long as evidence has been presented that the warning was not adequate. Id. at 428, 505 S.E.2d at 357. Plaintiff's expert provided testimony regarding the auger's warning that created a genuine issue of material fact. 332 S.C. at 429, 505 S.E.2d at 358. There was nothing in the auger's warnings to explain that the machine's center of gravity could change as it emptied. Id. Furthermore, the court disagreed with the trial court's interpretation of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1996) as establishing that a warning is adequate as a matter of law if it complies with industry standards. 332 S.C. at 430-31, 505 S.E.2d at 358-59 ("We reject this principle as unsound since it would allow the industry to set its own standard of safety, a proposition which finds no support from other jurisdictions, and which is antithetical to the underlying premise of strict liability."). Finally, the court stated that it need not address whether a feasible design alternative must be presented to survive summary judgment. Id. at 431, 505 S.E.2d at 359. The court agreed that Plaintiff failed to present a factual issue on this point, but it concluded that the court erred in ruling upon it because Long conceded that the auger required a warning to be made safe. Id. This concession foreclosed Plaintiff's argument that the auger could have been redesigned to be made safer and rendered the trial court's holding moot. Id. at 431-32, 505 S.E.2d at 359.
With regard to Long's duty of care, the court reversed the trial court's determination that Long satisfied its duty of care because its determination was premised on the legal adequacy of the auger's warning, which the Court of Appeals (supra) held was an issue of fact for the jury. Id. at 432, 505 S.E.2d at 359.
Finally, the court reversed the trial court's finding that the Plaintiff failed to introduce evidence of causation. 332 S.C. at 432-33, 505 S.E.2d at 359-60. At trial, Long successfully argued that Allen's failure to heed the auger's warning was the proximate cause of his injuries because Plaintiff's expert stated that if Allen had followed the warnings, the accident would not have occurred. Id. at 432, 505 S.E.2d at 359-60. The court stated that when an adequate warning is given, the manufacturer may assume that it will be heeded by the product user. Id. at 432-33, 505 S.E.2d at 360. However, the testimony by Plaintiff's expert created a factual issue as to whether a different, adequate warning could have changed Allen's conduct. Id. at 433, 505 S.E.2d at 360.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Tuesday, July 7, 2009
Changing Firms
I am proud to announce that I will be joining Collins and Lacy, effective July 13, 2009.
Collins and Lacy is a litigation firm with approximately 28 attorneys in three South Carolina offices (Greenville, Columbia, and Myrtle Beach). The firm will provide me with the opportunity to do a greater variety of litigation, including products liability work. I will be working with Gray T. Culbreath, who is the firm's managing shareholder and has a fantastic litigation practice (including an extensive products liability practice). This platform will also provide me with a great opportunity to grow my practice over the long-term.
I will be in the Columbia office, and that contact information is as follows:
Collins and Lacy
1330 Lady Street, Sixth Floor
P.O. Box 12487 (29211)
Columbia, SC 29201
TEL: 803.256.2660
TOLL FREE: 888.648.0526
FAX: 803.771.4484
This blog will continue as it has been, but I wanted to provide an explanation for some changes in my contact information, certain hyperlinks, etc. I sincerely thank the great folks at Collins and Lacy for this opportunity. I will miss the people at Nelson Mullins and look forward to keeping in touch!
Collins and Lacy is a litigation firm with approximately 28 attorneys in three South Carolina offices (Greenville, Columbia, and Myrtle Beach). The firm will provide me with the opportunity to do a greater variety of litigation, including products liability work. I will be working with Gray T. Culbreath, who is the firm's managing shareholder and has a fantastic litigation practice (including an extensive products liability practice). This platform will also provide me with a great opportunity to grow my practice over the long-term.
I will be in the Columbia office, and that contact information is as follows:
Collins and Lacy
1330 Lady Street, Sixth Floor
P.O. Box 12487 (29211)
Columbia, SC 29201
TEL: 803.256.2660
TOLL FREE: 888.648.0526
FAX: 803.771.4484
This blog will continue as it has been, but I wanted to provide an explanation for some changes in my contact information, certain hyperlinks, etc. I sincerely thank the great folks at Collins and Lacy for this opportunity. I will miss the people at Nelson Mullins and look forward to keeping in touch!
Tuesday, June 30, 2009
Case Brief: Harris v. Rose's Stores, Inc.
Today's case brief is of Harris v. Rose's Stores, Inc., 315 S.C. 344, 433 S.E.2d 905 (Ct. App. 1993). This case stands for the principle that causation in a products liability case must be based on "probability," as opposed to mere "possibility."
FACTUAL BACKGROUND: A fire at a residence killed a minor child. 315 S.C. at 345, 433 S.E.2d at 906. The fire was alleged to have been caused by a ceiling fan. Id. The fan was sold by Defendant Rose's ("Rose's") to Defendant Edgar Gregory ("Gregory"), the landlord of the burned residence. Id.
PROCEDURE: Plaintiff Pamela Harris (personal representative deceased's estate and hereinafter, "Plaintiff") brought wrongful death and survival actions against Rose's under a products liability theory. 315 S.C. at 345, 433 S.E.2d at 906. The trial court granted Rose's motion for summary judgment on Plaintiff's claim and and on a cross-claim asserted by Gregory against Rose's. Id. Plaintiff appealed. Id.
ISSUE: Whether the trial court erred in granting summary judgment to Rose's based on Plaintiff's belief that she had produced sufficient circumstantial evidence that the ceiling fan, which the fire totally destroyed, was defective and a substantial contributing cause of the fire. 315 S.C. at 345, 433 S.E.2d at 906.
DISPOSITION: The South Carolina Court of Appeals held that the trial court's grant of summary judgment was proper. 315 S.C. at 347, 433 S.E.2d at 907.
RULES AND OPINION: Plaintiff relied on the deposition testimony of her expert witness and a non-expert to establish the elements of her case. 315 S.C. at 346, 433 S.E.2d at 906-07. The expert was unable to point to any direct evidence that the fan was defective and caused the fire. 315 S.C. at 346, 433 S.E.2d at 907. The most he could say was that it was "possible" that the fan caused the fire, with other factors being equally as likely to have caused it. Id. The non-expert also could not establish that the fan was the cause of the fire. Id. "Causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case." Id. (citing Am Law Prod Liab 3d section 4:34, at 44 (1987). On this basis, the court held that Plaintiff had not met her burden of proof in establishing that Rose's negligence was the proximate cause of the injuries. 315 S.C. at 346-47, 433 S.E.2d at 907.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
FACTUAL BACKGROUND: A fire at a residence killed a minor child. 315 S.C. at 345, 433 S.E.2d at 906. The fire was alleged to have been caused by a ceiling fan. Id. The fan was sold by Defendant Rose's ("Rose's") to Defendant Edgar Gregory ("Gregory"), the landlord of the burned residence. Id.
PROCEDURE: Plaintiff Pamela Harris (personal representative deceased's estate and hereinafter, "Plaintiff") brought wrongful death and survival actions against Rose's under a products liability theory. 315 S.C. at 345, 433 S.E.2d at 906. The trial court granted Rose's motion for summary judgment on Plaintiff's claim and and on a cross-claim asserted by Gregory against Rose's. Id. Plaintiff appealed. Id.
ISSUE: Whether the trial court erred in granting summary judgment to Rose's based on Plaintiff's belief that she had produced sufficient circumstantial evidence that the ceiling fan, which the fire totally destroyed, was defective and a substantial contributing cause of the fire. 315 S.C. at 345, 433 S.E.2d at 906.
DISPOSITION: The South Carolina Court of Appeals held that the trial court's grant of summary judgment was proper. 315 S.C. at 347, 433 S.E.2d at 907.
RULES AND OPINION: Plaintiff relied on the deposition testimony of her expert witness and a non-expert to establish the elements of her case. 315 S.C. at 346, 433 S.E.2d at 906-07. The expert was unable to point to any direct evidence that the fan was defective and caused the fire. 315 S.C. at 346, 433 S.E.2d at 907. The most he could say was that it was "possible" that the fan caused the fire, with other factors being equally as likely to have caused it. Id. The non-expert also could not establish that the fan was the cause of the fire. Id. "Causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case." Id. (citing Am Law Prod Liab 3d section 4:34, at 44 (1987). On this basis, the court held that Plaintiff had not met her burden of proof in establishing that Rose's negligence was the proximate cause of the injuries. 315 S.C. at 346-47, 433 S.E.2d at 907.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Monday, June 29, 2009
Drilling Down: "Essentially the Same Condition" (Part V)
By Brian A. Comer
This is the final installment of a series based on some research I have been doing for an article. The first four installments can be found here (part I), and here (part II), and here (part III), and here (part IV).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
Liability Despite A Change in the Product's Condition: A defendant may still be liable under South Carolina law even if a product is not in essentially the same condition. "'Liability [may] . . . be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product . . . [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of.'" Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).
With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (1995) ("The first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product.") (emphasis added). If a jury can determine that an alteration was a foreseeable circumstance based on the product's design, then a defendant may be liable despite the fact that a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).
Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.
This concludes this series of posts about this element of all South Carolina product liability law actions. You can find all of the installments, and other information pertaining to this particular element, by clicking here or on the "Same Condition" topic tag to the right of the page.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
This is the final installment of a series based on some research I have been doing for an article. The first four installments can be found here (part I), and here (part II), and here (part III), and here (part IV).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and
- Maintenance.
Liability Despite A Change in the Product's Condition: A defendant may still be liable under South Carolina law even if a product is not in essentially the same condition. "'Liability [may] . . . be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product . . . [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of.'" Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).
With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (1995) ("The first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product.") (emphasis added). If a jury can determine that an alteration was a foreseeable circumstance based on the product's design, then a defendant may be liable despite the fact that a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).
Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.
This concludes this series of posts about this element of all South Carolina product liability law actions. You can find all of the installments, and other information pertaining to this particular element, by clicking here or on the "Same Condition" topic tag to the right of the page.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
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