Upcoming NBI Seminar on South Carolina Products Liability Law

On October 11, 2012, from 11:00 a.m. to 12:30 p.m. (ET), I will presenting a teleseminar for the National Business Institute entitled “Products Liability Update: South Carolina.”  I originally agreed to do this CLE presentation when NBI contacted me in February of this year, and I recently completed the written materials for it.

During the one-and-a-half hour seminar, I will survey all of the South Carolina case decisions (both federal and state court) that have been issued in 2012.  I will also provide an update on legislative and regulatory trends at both the state and national level.  Finally, I will discuss the “trends” in South Carolina products liability law over the last few years and my impressions of how this law will continue to develop.

If you are interested in this seminar, you can find all of the information and registration here. I hope to make it an interesting and worthwhile update on South Carolina products liability law.

Case Brief of Weston v. Kim's Dollar Store

Per my earlier post, I have now briefed the South Carolina Supreme Court's decision in Weston v. Kim's Dollar Store, which it issued August 8, 2012.  You can find the case brief at this link directly under the brief of the South Carolina Court of Appeals decision, which it issued July 15, 2009.  Enjoy!

New South Carolina Products Liability Case

Like I said in my last post, I have been a bit behind on blogging as a result of taking a vacation and having a fairly busy August.  However, on August 8, 2012, the South Carolina Supreme Court issued its opinion in Weston v. Kim's Dollar Store, No. 27155 (S.C. filed Aug. 8, 2012).  You can find the decision here.

As you may recall, I briefed the South Carolina Court of Appeals decision in this case, Weston v. Kim's Dollar Store, 385 S.C. 520, 684 S.E.2d 769 (Ct. App. 2009).  My brief of the court of appeals case can be found here.  The South Carolina Supreme Court granted a writ of certiorari to review the court of appeals decision, and it affirmed the court's decision. 

This is a preemption case, so it is significant in the world of drug/medical device litigation.  I will try in the next couple of days to do a case brief that supplements the earlier brief of this case, and I will post a hyperlink to it once it is completed.

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SCDTAA Products Liability CLE Was a Success

I am pleased to report that the South Carolina Defense Trial Attorneys Association Products Liability CLE was a success!  Last Friday, we had about 20 to 25 attorneys attend to hear speakers present about current issues in South Carolina products liability law.  I want to thank all of my speakers, who did a fantastic job.  I also would like to thank the people who attended the event.  For our first CLE devoted solely to products liability law, I was very pleased with the turnout.  (When you plan something like this for the first time, there is always a fear that no one will show up).    Finally, special thanks to AWR Court Reporting.  AWR's generosity allowed me to do plan this CLE at a fraction of what it otherwise would have cost, and they also did a great presentation about all of their services. 

I also received some very kind words from Michael Freeman and Dick Willis about this blog, and I greatly appreciate it.  Sometimes it is hard to keep up with blogging on a consistent basis, but it is nice to know there are folks who check in from time to time and enjoy the blog. 

Originally, I thought this CLE may be something that would be great to do on a yearly basis.  However, after planning this one, I am not sure this is a practical idea.  (Make no mistake, the topic is worthwhile and I enjoyed planning it).  South Carolina's products liability law does not change very quickly.  For example, our state appellate courts have only issued two products liability decisions this year.  That is not a criticism at all, but it means that having "new" material on a yearly basis is a bit of a challenge.  My fear is that the presentation would be pretty much the same every year, with only minor variations.  A good goal may be to do something like this every three to five years to evaluate any big changes in the law.  We will see, and I am open to suggestions. 

Again, thanks to all who presented and attended.  I am a bit behind on blogging, but I have some things to post in the coming days, so keep checking in. 

SCDTAA Products Liability CLE: There's Still Time to Register!

We are one week away from the South Carolina Defense Trial Attorneys Association Products Liability CLE!  As discussed in greater detail in this post, the CLE will be an all-day seminar of speakers and topics devoted to South Carolina's products liability law and defending these claims.  We have a fantastic group of speakers and topics, and this is a great way to get a block of CLE hours for a reasonable price.

This CLE is is available to members of SCDTAA, attorneys associated with an SCDTAA member firm, and individuals who work in claims management. If you would like to register for this seminar, visit the SCDTAA registration site.  I look forward to seeing you there!

Recent Publication (and Summary of South Carolina Non-Contractual Indemnification, Contribution, and Comparative Negligence Law)

As I have stated in prior posts, my law firm is a member of the Primerus society of law firms, and I am on its Products Liability Executive Committee.  Toward the latter part of 2011, our committee decided to do a compendium in which we would provide a state-by-state summary of the law of non-contractual indemnity.  We sought out volunteers for each state, provided a form template, and requested summaries for each state.  We requested that authors be sure to include any nuances specific to products liability law in their summary.

It was quite a bit of work.  In addition to writing the submission for South Carolina, I also reviewed ten or fifteen submissions for other states in order to ensure some measure of uniformity for each summary. 

The compendium in its entirety is now online, and you can find it at this link.  Although our Products Liability Group took the lead on it (and it includes substantial products liability case law), it is also a good primer on the general law of non-contractual indemnification, contribution, and fault allocation for each state.  My submission for South Carolina can be found here.  In it, you will find a general summary of South Carolina's comparative negligence law, its Uniform Contribution Among Tortfeasors Act, joint and several liability, the law of equitable (non-contractual) indemnification, and contribution.

With regard to any nuances in South Carolina relating to products liability law, the primary one relates to the fact that there is no right of equitable indemnity between mere joint tortfeasors.  Vermeer v. Wood/Chuck Chipper Corp., 336 S.C. 53, 64, 518 S.E.2d 301, 307 (Ct. App. 1999) (citing Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990); Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983); Atlantic Coast Line R.R. v. Whetstone, 243 S.C. 61, 132 S.E.2d 172 (1963)).  As context, joint tortfeasors are parties who act together in committing a wrong, or whose acts (if independent of each other) unite in causing a single injury.  Stated differently, joint tortfeasors are two or more persons jointly or severally liable for the same injury to person or property.  Vermeer, 336 S.C. at 64, 518 S.E.2d at 307 (citing Black’s Law Dictionary 839 (6^th ed. 1990).  “Parties that have no legal relation to one another and who owe the same duty of care to the injured party share a common liability and are joint tortfeasors without a right of indemnity between them.”  Id.  Determining whether parties are joint tortfeasors requires a review of the factual evidence.  Id. 

This is significant in the context of products liability action.  South Carolina’s courts have held that where parties owe the same duty of care and have no legal relationship to one another, then they are joint tortfeasors and have a common liability without a right of equitable indemnity.  Scott, 302 S.C. at 371, 396 S.E.2d at 358.  For example, South Carolina’s strict liability statute makes each party in the chain of distribution (e.g., manufacturer, distributor, retailer) liable for sale of a defective product.  Vermeer, 336 S.C. at 65, 518 S.E.2d at 307-08 (citing to S.C. Code § 15-73-10 (1977)).  Therefore, if a plaintiff is injured by a product and sues a party in the chain of distribution, there is no right of indemnification between the parties in the chain of distribution.  See, e.g., Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990) (holding there was no right of indemnity between co-defendants involved in distribution of a defective wheel assembly that exploded and injured plaintiff because both co-defendants shared common liability under South Carolina’s strict liability law).  Each party has a common duty and common liability to the ultimate consumer under the strict liability statute, making them joint tortfeasors. Conversely, if a party-defendant’s use of a product plays a role in causing injury to a plaintiff (independent of any fault of the alleged tortfeasor), then the product seller may be liable for indemnification.  See, e.g., Stuck v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983) (holding that purchaser of mechanical harvesting machine had right of indemnity against seller in case where harvesting machine was mounted on truck, caused purchaser to lose control of truck, and ultimately caused injury to passengers in oncoming vehicle).

You can find all of the above and more in the South Carolina submission.  Enjoy.

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The Basics: Proving "Defective Condition, Unreasonably Dangerous"

I have not done many "primer" posts recently because it is sometimes difficult to synthesize entire areas of South Carolina products liability law.  It can quickly become a lengthy (translated: "snoozer") blog post, or it may be better suited to be an article.  However, it occurred to me that I have never really provided the "basics" for proving one element of any products liability claim: that the product at issue be in a "defective condition, unreasonably dangerous." 

First, allow me to provide some historical context.  In South Carolina, there are three defects a plaintiff can allege: (1) manufacturing defect, (2) design defect, and (3) a warning defect.  Watson v. Ford Motor Co., 389 S.C. 434, 444, 699 S.E.2d 169, 174 (2010).  In Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) and Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543-44, 462 S.E.2d 321, 328 (Ct. App. 1995), South Carolina's appellate courts recognized two tests that had evolved for determining whether a product is defective.  The first test was the consumer expectations test, and the second test was the risk-utility test (explained in greater detail below).  The problem was that there was no real guidance on how to apply the different tests in the context of the different theories of product defect.  Generally, plaintiffs gravitated toward the consumer expectations test, and defendants gravitated toward the risk-utility test (i.e., because they believed each test was more favorable to their respective positions).  It was also unclear whether a design defect theory required proof of reasonable alternative design (i.e., as part of the risk-utility test).  Defendants generally maintained that proof of reasonable alternative design was a requirement, and a federal case in the District of South Carolina supported this argument.  (For information concerning proof of alternative design in South Carolina, see this post).  Although it was clear South Carolina recognized both tests, it was not clear which test was favored for any particular theory of defect.

Branham v. Ford Motor Co. 390 S.C. 203, 701 S.E.2d 5 (2010), clarified things.  Without going into the details of that case, the "basics" for proving product defect can now be summarized as follows:

Manufacturing Defect:  For a manufacturing defect, Branham suggests that the consumer expectations test is the applicable analysis for determining product defect by stating "[w]hile the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases."  Branham, 390 S.C. at 220, 701 S.E.2d at 14.  Branham quotes Claytor v. General Motors Corp., for its description of the consumer expectations test.  "'The test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product.'"  Branham, 390 S.C. at 218, 701 S.E.2d at 13 (quoting Claytor, 277 at 262, 286 S.E.2d at 131).   Paraphrased, the standard allows a jury to infer the existence of a defect if product fails to meet reasonable expectations of consumers.  Although there is nothing in Branham to indicate the risk-utility test cannot be applied in the context of a manufacturing defect, its language suggests use of the consumer expectations test.

Design Defect: As you have probably already deduced, a big issue in Branham was whether the correct test was applied in the context of a design defect claim.  After evaluating both the consumer expectations test, the risk-utility test, and their historic application in South Carolina products liability cases, the court adopted the risk-utility test for cases in which a design defect is alleged as the theory of product defect.  Branham, 390 S.C. at 222, 701 S.E.2d at 15.  Applying the risk-utility test, "'a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product.'"  Id. at 218-19, 701 S.E.2d at 13 (quoting Bragg, 319 S.C. at 543, 462 S.E.2d at 328).  This is a balancing test involving numerous factors for consideration, such as usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of the danger.  Bragg, 319 S.C. at 543-44, 462 S.E.2d at 328.  "[I]n South Carolina we balance the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer's action in designing the product."  Id. at 544, 462 S.E.2d at 328.  State of the art and industry standards are also relevant to show the reasonableness of the design.  Id. at 543, 462 S.E.2d at 328.    Furthermore, in Watson v. Ford Motor Co., 389 S.C. 434, 444, 699 S.E.2d 169, 174 (2010) and 5-Star, Inc. v. Ford Motor Co., 395 S.C. 392, 718 S.E.2d 220 (Ct. App. 2011), South Carolina's appellate courts stated that the design defect cases necessarily involve sophisticated issues beyond the knowledge of the average person and therefore require expert testimony.  (For more on this element of proof, see this post). 

Warnings claim: (This blogger maintains that a warnings claim is a design defect claim by another name.  Therefore, one could argue that the risk-utility test is the applicable standard).  Nothwithstanding this argument, a plaintiff usually argues that a product failed to provide a warning (where there has been proof of duty to warn) or that the warning provided was inadequate.  Since a warnings claim relates to the product’s design, a plaintiff must provide proof of an alternative warning that would have prevented the product from being unreasonably dangerous (i.e., one that was adequate).  So, what is the test for adequacy of a warning?  South Carolina law does not require that a warning make a product itself “safe” in order to be adequate.  Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404, at *2 (Apr. 25, 2008 D.S.C.) (denying plaintiff’s motion for reconsideration of dismissal where plaintiff’s argument was that “the warnings did not make the defendant’s cigarette products safe because the cigarette products caused the decedent’s death.”).  Rather, the plaintiff’s burden is to show that a different and adequate warning would have made a difference in the conduct of the person warned.  Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 432, 505 S.E.2d 354, 359 (Ct. App. 1998) (citing 63A Am. Jr. 2d Products Liability § 1240 (1997)).  Therefore, determining whether a warning is adequate involves an inquiry into causation and whether a different warning would have prevented the injury.  Odom v. G.D. Searle & Co., 979 F.2d 1001 (4th Cir. 1992) (affirming district court’s grant of summary judgment in failure to warn case involving intra-uterine device where plaintiff failed to prove her doctor would have a prescribed a different course of treatment if a more drastic warning had been given).  In cases involving prescription drugs and the learned intermediary doctrine, this means that a plaintiff must establish "'the additional non-disclosed risk was sufficiently high that it would have changed the treating physician's decision to prescribe the product for the plaintiff.'"  Sauls v. Wyeth Pharmaceuticals, Inc., 2012 WL 724794, at *3 (D.S.C. Mar. 7, 2012) (quoting Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992).

As always, I invite your feedback, and hopefully this post is useful for summarizing the applicable law for this element of any South Carolina products liability claim.

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DRI Products Liability Steering Committee Fly-In Meeting De-Brief

On Monday, I flew to Chicago to attend the Defense Research Institute ("DRI") Products Liability Steering Committee "Fly-In" meeting.  We have this meeting every year to plan the organization's Products Liability Conference for the following year.  It is a great group of about fifty to sixty attorneys from across the country who assist with planning of the conference.

On Monday evening, we had a dinner for anyone who flew in the night before the meeting.  It was a good opportunity to network with other committee members and enjoy some great food at Carnivale.  Many thanks to committee member Denise Bense for taking the lead in planning this event.

Our meeting was on Tuesday and did not begin until 10 a.m. (i.e., so that people had the option of just flying up for the day).  We met from about 10 a.m. to 2:15 p.m. and discussed all of the plans for next year's meeting.  The meeting is planned for April 3-5, 2013 at a new location (at least as long as I have been going to this event), the Gaylord National Resort and Convention Center on the Potomac in National Harbor, Maryland.  We do not have a "theme" per se yet, as the committee is still reviewing various topics for presentation. 

I submitted four potential topics in hopes of being selected to present on the "main stage" (i.e., this is during the full session of the conference, as opposed to the breakout sessions for the various Specialized Litigation Groups).  The committee has requested more information about two of my topics (mocks trials and focus groups as a tool in litigation, and manufacturer involvement in standards activity), so I am hopeful that I may get the opportunity to present to the full session of attendees.  Go ahead and mark your calendar now.  If you defend products liability claims, this is a yearly event you do not want to miss.

I flew out of Chicago at 4:20 p.m., and I ran smack dab into the storms in Charlotte, which held me up for two hours.  Instead of landing in Columbia at 8:30 p.m., we touched down at 10:30 p.m.  A long day, but always good to get home.

Check back for more details as the 2013 DRI Products Liability Conference agenda is finalized!