Case Brief: Riley v. Ford Motor Co.

I am trying to get back into blogging and catching up on some cases that have been decided in South Carolina over the last few years.  Today’s case is Riley v. Ford Motor Co., 414 S.C 185, 777 S.E.2d 824 (2015).  It is a defective door latch case where the decedent was thrown from a Ford F-150.  The substance of the case relates to (i) whether the trial judge should have granted a $600,000 additur to the verdict, and (ii) how to apply South Carolina’s setoff law.  There is no real analysis of products issues per se, but it is worth a read from a procedural standpoint.

FACTUAL BACKGROUND: Benjamin Riley was involved in an automobile accident in a Ford F-150 when another driver pulled out in front of him.  He swerved, collided anyway, and the impact caused the driver’s door of Riley’s pick-up to open.  Riley was ejected and died from his injuries.  414 S.C. at 189, 777 S.E.2d at 826.

PROCEDURE: Riley’s widow, as his Personal Representative (“Plaintiff’), filed survival and wrongful death claims against the opposing driver and Ford.  414 S.C. at 189, 777 S.E.2d at 827.  The case against Ford alleged a negligently designed door latch system that resulted in Riley’s ejection.  Plaintiff settled with the opposing driver for $25,000 and allocated $20,000 to the survival claim and $5,000 to the wrongful death claim.  The trial judge approved the settlement.  Id.

At trial, Plaintiff only submitted the wrongful death claim against Ford to the jury, and it returned a verdict for $300,000 in actual damages.  The jury found evidence of conduct to support punitive damages but declined to award them.  Id.

Plaintiff sought a new trial nisi additur (to add damages), which the trial court granted in the amount of $600,000.  This brought the total recovery to $900,000.  Id.  Ford filed post-trial motions for judgment notwithstanding the verdict and to offset the opposing driver’s settlement.  The trial judge denied these motions.  Id. at 190, 777 S.E.2d at 827.

Ford appealed and the South Carolina Court of Appeals reversed in Riley v. Ford Motor Co., 408 S.C. 1, 757 S.E.2d 422 (Ct. App. 2014).  It held the trial court erred in denying Ford’s motion for setoff and in granting Plaintiff’s motion for a new trial nisi additur.  It reinstated the jury’s $300,000 verdict.  It also held Ford was entitled to offset $20,000 against the jury’s verdict in the wrongful death action, as opposed to the $5,000 that the settling defendant agreed to allocate to that claim.  Id. at 190-91, 777 S.E.2d at 828. 

Plaintiff appealed to the South Carolina Supreme Court on both issues.

ISSUES: (1) Did the court of appeals err in reversing the trial court’s order granting a new trial nisi additur, i.e., because the trial court’s decision was an appropriate exercise of discretion and was supported? (2) Did the court of appeals err in reallocation of the underlying settlement and setoff of settlement proceeds?  414 S.C. at 192, 777 S.E.2d at 827-28. 

DISPOSITION: Reversed on both issues.  414 S.C. at 192, 777 S.E.2d at 827-28. 

RULES AND OPINION: The Court first addressed a motion by a party for a new trial based on a challenge that the verdict is either excessive or inadequate.  The rule with regard to this issue is that “’the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, or prejudice.’”  414 S.C. at 192, 777 S.E.2d at 828 (quoting Allstate Ins. Co. v. Durham, 314 S.C. 529, 530-31, 431 S.E.2d 557, 558 (1993)).  If it is the former, then the trial judge alone has the power to alter the verdict by granting of a new trial nisi.  If it is the latter, it is the duty of the trial court and the appellate court to set aside the verdict absolutely.  Id.  Although the trial judge has discretion, “compelling reasons” must be given to justify the trial court invading the jury’s province in this manner. Id. at 193, 777 S.E.2d at 829 (citing Bailey v. Peacock, 818 S.C. 13, 14, 455 S.E.2d 690, 691 (1995)). 

At trial, Plaintiff presented expert testimony to support economic damages of more than $228,000.  There were also so many witnesses to testify about non-economic damages that the trial judge ruled it became cumulative.  In short, substantial evidence supported the decedent was a wonderful human being.  Id.  The Court held the court of appeals ignored the abuse-of-discretion standard of review and focused on a de novo evaluation of whether there was sufficient justification for “invading the jury’s province.”  Id. at 194, 777 S.E.2d at 829.  The Court held this was error.  The trial court did not abuse its discretion in granting an additur of $600,000 based on the trial judge’s thorough recitation of the basis for his actions.  Id.  The Court also clarified that just because the jury awarded some amount of non-economic damages (over and above the $228,000 in actual damages) did not mean that nisi additur was not available.  “While the presence of some amount of noneconomic damages may be a factor mitigating against the granting of a new trial nisi additur, there is no categorical rule prohibiting a nisi additur where a jury verdict includes some measure of noneconomic damages.”  Id. at 194, 777 S.E.2d at 830. 

On the issue of setoff, “’[a] non-settling defendant is entitled to credit for the amount paid by another defendant who settles for the same cause of action.’”  Id. (quoting Rutland v. S.C. Dep’t of Transp., 400 S.C. 209, 216, 734 S.E.2d 142, 145 (2012)).  Allowing setoff prevents a double recovery.  The Court recounted the principle of setoff was codified as part of the South Carolina Contribution Among Tortfeasors Act at section 15-38-50(1).  Id.  However, “any ‘reduction in the judgment must be from a settlement for the same cause of action.’”  Id. at 196, 777 S.E.2d at 830 (quoting Hawkins v. Pathology Assocs. Of Greenville, P.A., 330 S.C. 92, 113, 498 S.E.2d 395, 407 (Ct. App. 1998)).  If there is more than one claim, this affects how much a non-settling defendant may be allowed to offset.  Id. 

The issue was whether the court of appeals erred in reapportioning the $25,000 settlement between the survival and wrongful death claims so as to increase the amount Ford could offset against the wrongful death verdict.  The Court found the court of appeals erred in reapportioning the settlement proceeds.  Id. at 196-97, 777 S.E.2d at 831.  It agreed with the approach of the Illinois Court of Appeals, which stated as follows:

A plaintiff who enters into a settlement with a defendant gains a position of control and acquires leverage in relation to a non-settling defendant. This posture is reflected in the plaintiff's ability to apportion the settlement proceeds in the manner most advantageous to it. Settlements are not designed to benefit non-settling third parties. They are instead created by the settling parties in the interests of these parties. If the position of a non-settling defendant is worsened by the terms of a settlement, this is the consequence of a refusal to settle. A defendant who fails to bargain is not rewarded with the privilege of fashioning and ultimately extracting a benefit from the decisions of those who do.

Id. at 197, 777 S.E.2d at 831 (quoting Lard v. AMI FM Ohio, Inc., 327 Ill. Dec. 273, 901 NE.2d at 1019 (2009).
 
The Court held the trial court-approved allocation was reasonable and should not have been disturbed.  Therefore, Ford was entitled to set off only the $5,000 the settlement agreement apportioned to the wrongful death claim, and not the $20,000 reapportioned by the court of appeals.  Id. at 198, 777 S.E.2d at 831. 

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Certified as SC Civil Court Mediator

A few weeks back, I took the Civil Court Mediation Training course offered by the South Carolina Bar.  I have known about this course for some time, and I have been trying to take it for many years.  However, something always seemed to come up.  As context, this is a 40 hour course that basically runs from a Thursday morning to the following Monday, from about 8:30 a.m. to 5:30 p.m. each day.  So, it is tough to coordinate it sometimes with (a) a week where you have other things going on at work, and (b) a weekend where your family may have things going on.  However, the stars finally aligned this year, and I was able to complete the course.

It was extremely worthwhile and not what I expected.  I knew that -- because of the duration -- it was going to be a "deep dive" into conflict resolution and negotiation theory/practice.  I figured there would be some human behavior and psychology sprinkled in.  However, let's be honest: if this was 40 hours of lecture on those topics, it would cease being interesting at some point and become a "snoozer." 

Instead, the course did a great job of mixing theory, practice, and a lot of role play in the mediation process.  Each participant had an opportunity to play the role of a mediator in various scenarios, and it was a great opportunity to apply what was learned during the discussion portions of the training.

I also learned that participating in a ton of mediations as counsel for a party does not automatically equate to being a good mediator.  The training really illustrated the differences in being an advocate versus being a neutral, which is the role of a mediator.  The training will obviously affect how I serve as a mediator in cases (once I get an opportunity to mediate some cases), but I think it will also impact how I represent clients at mediation.  I think having insight into the role and tactics of a mediator will be valuable when I am wearing my "advocate" hat because I have a better idea of how the mediator is approaching the case to try and foster a resolution.

After completing the training, I submitted my application to be a certified as a Civil Court Mediator, and I received my certificate today!  I look forward to developing mediation as an area of practice in the future.  I also intend to check out any articles that may be out there that deal with any specific issues/nuances for mediating the products liability case.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

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

 

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

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

 

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

 

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

 

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

 

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

 

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

 

2014 DRI Products Liability Conference

Since 2010, I have made it a priority to attend the Defense Research Institute's Products Liability Conference. This year's conference is being held April 9-11, 2013, in Phoenix, Arizona at the Arizona Biltmore.  The theme of this year's conference is "Plan and Prepare."

This conference is always outstanding. I try to attend it each year because (1) the programming keeps me updated from a practice standpoint, and (2) now that I have attended for a few years, there are more and more "familiar faces" for networking purposes.  I have made some great friends, and I have also gotten referrals from contacts made at the conference.  In my opinion, it is a "must attend" if you defend products liability cases.

In addition, I am in my first year serving as Chair of the Agricultural, Construction, Mining and Industrial Equipment ("ACMIE") Specialized Litigation Group ("SLG").  As you know from posts about prior conferences, ACMIE always has a breakout session, but things are a little different this year.  ACMIE actually has a "main stage" presentation in front of all conference attendees.  Our main stage presentation is entitled "Warn, Retrofit, or Recall: Risk Management Considerations for Legacy Equipment."  This presentation will focus on products liability claims involving older equipment.  (I had a legacy equipment case years ago involving an extremely old corn picker, and I can vouch for the fact that there are some challenges and nuances when dealing with these types of cases).  Kevin G. Owens (Johnson and Bell Ltd.), Jaime L. Myers (Caterpillar Inc.) and Daniel A. DuPre (Federal Signal Corporation) will present on this topic. at 2 p.m. on April 9, 2014 during the afternoon main stage portion.

On April 10, 2104, we will also have an abbreviated breakout session (due to the fact that we are doing a main stage presentation).  Our breakout session will be from 10:30 a.m. to 12:30 p.m., and we will have two presentations.  First, Mark E. Gebauer (Eckert Seamans Cherin & Mellott LLC), Kristin K. Esche (Deere & Company) and David M. Nicholas (Volvo Construction Equipment North America LLC) will present on "Expert Witnesses: Inside or Outside?  The Pros and Cons."  Then, Matt Hundley (Moran Reeves & Conn PC Law Firm) will present our annual "ACMIE Top Ten for 2013."

If you have not already registered, I would urge you to plan to attend this conference and participate in our SLG meeting. All of the information about the conference and registration can be found at this link, and I hope you will make plans to attend.  You can also download the event brochure by clicking here.

"The report of my death was an exaggeration . . . . . ." Mark Twain, May 31, 1897

From some quick online research, I believe Mark Twain is credited with the above quote, and it is frequently misquoted as "the reports of my death are greatly exaggerated."  Although "death," is certainly an exaggeration in my case, you have probably been wondering where I have been these last few months.  It has been way too long since my last post, so some explanation is in order.  It also provides me with a good opportunity to provide some retrospective commentary on this blog, which turns "5" in May of the year.  So . . . bear with me while I provide some context for "where I've been."

In the spring of 2009, I knew I would likely be transitioning to a different law firm -- or opening my own -- in the near future.  Around that time, I had a robust practice that had kept me busy.  However, the vast majority of my work was in a support role.  Truthfully, I had been practicing for ten years, but I had no real clients I could call my own.  Make no mistake, I worked very hard for the clients I serviced, but I was not "their lawyer" on speed dial.  If you were counting billable hours, I worked very hard.  However, I did not publish, speak, or really do any client development of my own.  I was a service lawyer (and I like to think I was a pretty good one).

This blog was my first real attempt to try and change things.  I wanted to develop my own practice, and I had a desire to "get my name out there."  By using blogger.com, the site was free.  Therefore, my small marketing budget was a non-factor.  The blog also had the potential to reach as far as Google's search optimization "spiders" would allow, so there was good potential for exposure.  The only real "cost" was my time.  Now . . . I am not sure how much you remember about 2009, but the legal industry took a real downturn; one thing I had was "time."  I began to pour some of my efforts into carving out my place on the internet and establishing myself as someone with knowledge of South Carolina products liability law. 

There were some immediate benefits to this blog.  By posting substantive content, I learned more and more about South Carolina products liability law (as opposed to pieces of products liability law around the county in the national practice I supported at the time).  People began to call me and ask questions about what I thought about some new products case, or tort reform.  It was also pretty gratifying to go on the site every day and see how many people visited, or the key words that brought them to the site.  Although a little disconcerting, I began to see key words like "Brian Comer South Carolina products liability law" that someone used to get to the site.  I thought, "Awesome! . . . It is only a matter of time before potential clients start calling!"

Well . . . yes and no.  I changed firms in the summer of 2009 and came to Collins & Lacy.  I remained very focused on building a practice.  I blogged frequently, and I published and spoke almost as frequently.  With a greater marketing budget, I became heavily involved in the Defense Research Institute, the South Carolina Defense Trial Attorneys' Association, and Primerus.  I blogged.  I spoke.  I published.  (Did I say I blogged?).

It took awhile.  I had a nice long list of publications and presentations, but it did not immediately yield fruit in terms of client development.  What it did do, however, was show that I had put some serious time into knowing and following this particular area of practice in South Carolina.  I continued to assist colleagues at my new firm with their work, and I remained focused on developing my own practice.

I seriously underestimated how long it would take.  However, about a year ago, I began to see my efforts at developing a practice "pop."  Here is the irony though: it did not start with products liability.  I also devote a fair amount of my practice to FINRA arbitration, which involves defending financial advisors and broker-dealers from claims by investors.  I really enjoy it.  I began to get calls about these types of claims, and I began to have some clients that called me to defend them.  I began to get much busier, which is evidenced by my decrease in blogging in 2013.  As 2013 ended and 2014 began, things "popped" again.  This time it was in products liability, FINRA arbitration, and general professional liability litigation.  Great clients (and I am grateful for every one of them), and great cases. 

All of the above is a long-winded way of saying . . . I have gotten very busy.  And, that is a very good thing.  It is the culmination of what started this blog to begin with: trying to develop my own practice, instead of serving in a support role. 

I recall that early in my legal career, a very well-known attorney told me that the key to building my own practice was to "write something, and then people will call you about it."  I do not completely agree with that statement.  Although there may be a science to practice development and legal marketing, I cannot say I have figured it out.  All I know is that I wrote and presented quite a bit (not just "something"), and I focused on doing good work for the clients I serviced and who called me.  It paid off.  It just took longer than I realized when I set out to do it.

For anyone at any stage of their legal career who may be reading this and who may be trying to figure out how to develop their practice, I encourage you to keep at it!  I am not sure there is any set formula.  The above is what (eventually) worked for me, but I am sure there are alternate routes.  I think any route likely involves some measure of publishing, presenting, and becoming involved in organizations . . . all in an effort to "get your name out there." 

So . . . where to go from here?  More of the same, I hope.  I genuinely enjoy blogging, and my apologies that this site has not been as active as it was prior to 2013.  However, even though I really enjoy blogging, the blog was never an "end" in and of itself.  It was a means to trying to develop a practice, and it has served that end.  I hope to continue to update it as my time allows, and I now need to assess how to make time to do that.  I will continue to try and update it as often as I can, and I greatly appreciate all the visitors who drop by.  I have had some nice people tell me that it has provided a great resource for them, and I greatly appreciate those compliments. 

Stay tuned!  I hope to continue to bring you thoughtful commentary on South Carolina products liability law, and I will make every effort to do it with as much consistency as I can.

Verdict Survey: $38 Million Asbestos Verdict in Richland County

About two weeks ago, I saw my friend Theile McVey at Starbucks.  She mentioned in our general chit-chat that she was in trial.  As shop talk usually goes, I asked her what kind of case it was, and she said it was an asbestos case.  Apparently, it went pretty well.  I don't have much in terms of details and will try to update this post if/when I get more information, but for now, John Monk at The State Newspaper did a nice article today, which can be found here and is cut and pasted below.  (I added in a few hyperlinks for additional information).

Richland County jury awards $38 million in asbestos case

Published: September 12, 2013 Updated 12 hours ago

By JOHN MONK — jmonk@thestate.com

A Richland County jury has awarded a Wagener equipment worker and his wife $38 million in damages for health problems linked to exposure to asbestos.

Following a 21/2-week trial, the jury awarded plaintiff Lloyd Strom Garvin, 74, $10 million in actual damages and another $1 million in actual damages to his wife of 50-plus years, Velda Garvin, for loss of consortium.

The jury also ordered defendants Durco and Crane Co. to pay $11 million each in punitive damages to Lloyd Garvin. It ordered a third defendant, Byron Jackson, to pay $5 million in punitive damages.

A spokesman for Crane said Thursday the company will appeal. Among possible grounds for appeal are “no credible evidence” and excessive and unwarranted jury awards, said TerryBudd, a Pittsburgh lawyer who represents Crane.

“The verdict is flawed,” Budd said. “We’re definitely appealing.”

Efforts to reach Charleston attorney Tim Bouch, who represented Durco and Byron Jackson during the trial, were unsuccessful Thursday.

Durco, Byron Jackson and Crane are major companies that manufacture pumps and valves. Garvin contended his years of exposure to their asbestos-containing gaskets and packing in valves and pumps that he used in factory and farm work caused him to develop mesothelioma, a rare form of cancer that plaintiffs said was nearly always caused by asbestos exposure.

The jury was out some four hours and returned a final verdict around 9 p.m. Wednesday night. Circuit Judge Garrison Hill of Greenville presided.

Originally, Garvin’s lawsuit named 13 defendants, but most had been dropped or settled by the time the trial began Aug. 26.

Garvin’s lawyers, Jessica Dean of Dallas and Theile McVey of the Columbia firm Kassel McVey, argued at trial that defendants Crane, Durco and Byron Jackson used asbestos in their products, should have known about its dangers and failed to take action to warn and protect people like Garvin who work around their products.

Garvin’s testimony and cross-examination during trial was presented to the jury by a video recording displayed on a large courtroom screen.

He is currently recovering from double pneumonia. His lawyers contended at trial that he has less than a year to live because of his cancer.

During closing arguments, Garvin’s attorney Dean asked the jury to award $1 million in actual damages for each year of life that Garvin was expected to miss because of his fatal disease. Garvin’s life expectancy would have been another 10 to 11 years, she argued.

Attorney Robert Meriwether of the Columbia firm Nelson Mullins and Bouch were the defendants’ attorneys during trial.

According to a complaint in 2012 action, some of Lloyd Garvin’s exposure to asbestos-containing equipment and products came in Wagener while working on his family farm, as well as while working as a heavy equipment operator in West Columbia and Aiken.

The trial took place in Richland County because the complaint, filed in 2012, alleged some of the exposure had a Richland County connection.

Reach Monk at (803) 771-8344.

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Motion in Limine Order in Quinton v. Toyota Addresses Crashworthiness in Modern Era



Earlier this week, I blogged about a recent trial of a Toyota Camry rollover case, which resulted in a defense verdict on June 21, 2013.  Prior to the trial, the Court issued a pre-trial Order in response to a motion in limine filed by Plaintiff's counsel.  The Order can be found here, and it is worthy of further commentary because it addresses crashworthiness in South Carolina.  It also references recent case law in which our courts have hinted at moving toward the Restatement (Third) of Torts: Products Liability (1998).  So...let's take a closer look.

To re-cap, the general facts relating to Quinton v. Toyota Motor Corporation can be found in this post.  Generally, the case involved a rollover of a 2009 Toyota Camry that resulted in the death of the driver (and sole occupant).  As stated in the Order, Plaintiff brought the case under the crashworthiness doctrine because she alleged the air bag failed to deploy properly during the accident. (Order at 2).  As a result, she claimed "enhanced injury" when the accident occurred, resulting in the death of the driver.  (Id).  Therefore, prior to trial, Plaintiff moved to exclude all evidence related to causation or fault. 

The Court began by summarizing prior South Carolina case authority on the crashworthiness doctrine.  Quoting from the Fourth Circuit Court of Appeals decision in Jiminez v. Daimler Chrysler Corp., 269 F.3d 439, 452 (4th Cir. 2001), the Court noted that "'liability [in a crashworthiness case] is imposed not for defects that cause collisions but for defects that cause injuries after collisions occur.'"  (Order at 2) (quoting id.).  In Jiminez, the district court excluded evidence of causation in a crashworthiness case.  The defendant had argued that because South Carolina adopted comparative negligence, the driver's alleged negligence was relevant to a damages calculation.  In concluding that the district court committed no error, the Jiminez Court noted that South Carolina had not addressed the issue of whether causation was relevant in a a crashworthiness analysis, and there was a split of authority on the issue.  Although the Court was not certain what the rule would be in South Carolina, it could not conclude that the the district court had erred in light of the fact that -- under the crashworthiness doctrine -- the cause of the original accident was not relevant to proving a claim for enhanced injury.  (Order at 2-3). 

Since Jiminez, the Court recognized that South Carolina courts still have not directly addressed this issue.  The Court offered to certify the question to the South Carolina Supreme Court, but the parties declined.  Therefore, the Court tried to ascertain how South Carolina courts would rule on it.  (Order at 3).

The Court reviewed that Branham v. Ford Motor Co., 390 S.C. 203, 220, 701 S.E.2d 5, 14 (2010) "embraced the Restatement (Third) of Torts: Products Liability (1998)."  (Order at 3).  Noting this trend, the Court cited to the comments in Restatement (Third) section 16 and the notion that a plaintiff's fault in causing an action that causes defect-related increased harm is relevant to apportioning responsibility.  (Order at 3-4) (emphasis added).  The Court noted that Jiminez did not hold that South Carolina would not admit evidence of cause in a crashworthiness analysis.  Rather, Jiminez only concluded there was no error by the district court under then-existing South Carolina law.  (Order at 4).

Since Jiminez, the Court noted that South Carolina has adopted comparative negligence, and its Supreme Court cited Restatement (Third) and its comments with approval in Branham.  (Order at 5).  The Court also noted that a majority of jurisdictions that considered the issue have held that comparative negligence is appropriately considered in a crashworthiness case.   Finally, the Court cited to language in Jiminez's dissent to support that a jury has to assess behavior of both the plaintiff and the defendant in a crashworthiness case to determine causation. The Court also agreed that the evidence was relevant to the analysis and conclusions of the experts accident reconstruction.  (Id.). 

The Order continues to show what this blog has maintained in numerous posts: Branham was a "game changer" in South Carolina products liability law.  Whether it leads to a definitive adoption of the Restatement (Third) of Torts: Products Liability (1998) by the Legislature remains to be seen, although our Legislature also made those overtures during the last round of tort reform.  We'll see...

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Verdict Survey: 2009 Rollover of Toyota Camry in Aiken County

On June 21, 2013, a jury returned a defense verdict in a rollover case tried in United States District Court, Aiken Division.  The details of the case are set forth below.

Capsule Summary: On June 21, 2013, a jury returned a defense verdict in a case involving a fatal rollover event in a 2009 Toyota Camry.  The driver's personal representative for the estate brought a wrongful death suit against multiple defendants, alleging claims for strict products liability, breach of warranty, and negligence.

Case Information: Alacia C. Quinton as PR for the Estate of April Lynn Quinton, Plaintiff, v. Toyota Motor Corporation; Toyota Motor Sales U.S.A., Inc.; Toyota Motor Engineering and Manufacturing North America, Inc., Toyoda Gosei North America Corporation, Defendants, C/A No.: 1:10-cv-02187-JMC.

Date of Verdict: June 21, 2013

Venue: United States District Court, District of South Carolina, Aiken Division

Judge: The Honorable J. Michelle Childs

Factual Background: On October 14, 2009, April Lynn Quinton was driving a rented 2009 Toyota Camry in Aiken, South Carolina.  She lost control of the vehicle while driving north into a left-hand curve.  The car exited the road, struck an embankment, and rolled over several times before coming to rest on its wheels.  Ms. Quinton was partially ejected and suffered severed head injuries from which she never recovered.  She died on October 23, 2009.

Allegations and Procedure: Plaintiff filed a wrongful death and survival action against Defendants in the Aiken County Court of Common Pleas.  In the Complaint, Plaintiff asserted claims for strict products liability, breach of warranty, and negligence.  Plaintiff alleged the vehicle's roof structure and seat belt restraint system were defective generally.  Plaintiff also alleged that the supplemental restraint system, which involved certain airbag technology, was defectively designed.   More specifically, the 2009 Toyota Camry's supplemental restraint system included a curtain shield airbag ("CSA").  This system deploys above the vehicle's doors to protect a passenger's head from side impacts.  Plaintiff alleged that the vehicle lacked a rollover-activated curtain shield airbag ("RCSA").  This system, which was not included in the 2009 vehicle, has a rollover sensor that deploys the curtain shield airbags when it senses the car is rolling over.

Defendants removed the case to the United States District Court of the District of South Carolina, Aiken Division.  Defendants answered the Complaint and later filed a motion for summary judgment.  The Court granted the motion with regard to Plaintiff's claims relating to a defective roof and defective seat belt restraint system.  However, it denied summary judgment on Plaintiff's claim of a defectively designed supplemental restraint system.

At trial, the primary liability theory remaining and asserted by Plaintiff was the claim that the driver's side airbag failed to fully deploy.  Plaintiff alleged this failure was the result of a hole in the airbag during manufacture (i.e., manufacturing defect).  Defendants demonstrated that the hole found in the airbag post-accident was created during the severe four-roll rollover event as the bag was constrained and over-pressurized.  In addition, the defendants presented evidence of the Quality Assurance/Quality Control procedures followed a the non-party manufacturers. 

Experts: Plaintiff presented the following experts: Ron Kirk (accident reconstruction), Robert Bowser (airbag design), Richard Edwards (materials science), and Joe Burton (biomechanics).  Defendants presented the following experts: Geoff Germane (accident reconstruction), Bob Gratzinger (roof structure), Mike Klima (airbag design), Karen Balavich (airbag/materials science) and Catherine Corrigan (biomechanics).

Alleged Damages: Plaintiff asked for $5 million.

Result: After four hours of deliberation, the jury returned their verdict in favor of the defendants.

Miscellaneous: This case also involved some pre-trial motions, one of which was a motion in limine by Plaintiff to exclude all evidence related to accident causation or fault.  I will try to post the Court's Order on that motion later in the week, as it provides some interesting insight into our state's movement toward Restatement (Third) of Torts: Products Liability (1998) and crashworthiness.  Also, special thanks to my friends and former colleagues, Dick Willis and Angela Strickland, for calling this case to my attention.  Dick and Angela were on the defense trial team for this case.  They were also kind enough to present the case at our products liability breakout session at the South Carolina Defense Trial Attorneys Association Summer Meeting a couple of weeks ago.

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