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

 

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

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

 

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

 

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

 

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

 

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

 

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

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

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

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

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

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More on Graves v. CAS Medical Systems, Inc.

Last week I did a case brief of the South Carolina Supreme Court's decision in Graves v. CAS Medical Systems, Inc. (see the brief here and the full decision here).  This case deserves more blog time because it has some significance to trends in South Carolina's products liability law.  There is also some language I do not care for very much, but this is just my personal opinion.  Set forth below are observations of Graves in order of their significance (to this blogger).

(1) The court backed off of prior decisions suggesting expert testimony is required for a design defect case.  As you may recall from this post, prior South Carolina appellate court decisions suggested a design defect theory requires use of expert testimony to sustain the burden of proof.  In Graves, the court backed off this position.  "In some design defect cases, expert testimony is required to make this showing [of defect] because the claims are to complex to be within the ken of the ordinary lay juror."  (Emphasis added).  The court provided extensive string citation to examples of complex cases requiring expert testimony.  Then, it dropped the bombshell: "Whether expert testimony is required is a question of law."  The court found Plaintiffs' claim to involve complex issues of computer science; accordingly, Plaintiffs' claim required direct evidence of defect in the form of expert testimony.  Be that as it may, this language by the court leaves open the possibility that a design defect claim may not require expert testimony.  This is contrary to the impression given by the appellate courts in Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010) and 5-Star, Inc. v. Ford Motor Co., 395 S.C. 392, 718 S.E.2d 220 (2011).

(2) Use of circumstantial evidence to prove design defect is alive and well.  Defendant argued that without expert testimony (which the court had excluded), Plaintiff had no direct evidence of defect.  Taking it one step further, Defendant argued the court foreclosed use of circumstantial evidence in a design defect case in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010).  To borrow an expression from Lee Corso, "Not so fast my friend!"  The court said any issue can be proven by circumstantial evidence, and it is just as good as direct evidence if it is equally as convincing to the trier of fact.  The court also pointed out that it allowed the plaintiff in Branham to use other similar incidents, "which is classic circumstantial proof."  However, the court did not have to get into analyzing if there was sufficient circumstantial evidence in Graves because it determined the claim involved complex issues that required expert testimony as a matter of law (see number 1 above).

(3) Okay, I get it...but I don't like it.  So basically, the court is now saying it is going to take a case-by-case approach to the necessity of expert testimony in design defect cases.  Furthermore, if the case is not very complex and does not require expert testimony, then convincing circumstantial evidence may be offered as proof.  I have two problems with this approach. 

• First, virtually every product's design is beyond the ordinary knowledge of a layperson.  For example, I understand the concept of paint.  You mix some chemicals and pigments, and voila...you have paint.  However, is it really that simple?  I recently had a plaintiff try to use circumstantial evidence that a paint job's allegedly improper appearance supported a design defect claim.  My argument was that although the paint may not appear correctly, he had to prove the design of the paint was defective.  If the painter mixed it incorrectly, that is not a design defect.  If the manufacturer released a manufacturing lot with to much solvent in it, that is not a design defect.  As I sit here, it is difficult for me to come up with an example of a product where its design is within the common knowledge of a layperson.  My coffee cup is pretty simple, but I could not tell you why the manufacturer chose its composition, dimensions, etc.  I also could not tell you how any changes to any aspect of the design of the cup may affect the manufacturer's ability to produce the cup...which brings me to my second point...
• I could not tell you a reasonable, feasible, alternative way to make my coffee cup.  This is a big problem with leaving the door open to use of layperson testimony or circumstantial evidence in a design defect claim.  In Branham, the court stated a design defect claim requires proof of reasonable alternative design.  Branham, 390 S.C. at 225, 701 S.E.2d at 16-17.  If it is possible for a plaintiff to prove a design defect claim by circumstantial evidence (theoretically), does that mean a plaintiff can also prove alternative design by layperson testimony or circumstantial evidence?  In theory, are we going to allow Joe Sixpack to opine that a tighter fitting coffee lid is a reasonable, feasible design when he has no idea about the manufacturer's ability to produce the cup for a profit with his layperson-approved design?  I do not think so, but the court's case-by-case approach certainly leaves open this possibility.

(4) Introducing the "reasoning to the best inference" methodology for arriving at expert opinion(s).  From my own searches, I cannot see that this methodology has ever been addressed by a South Carolina court, and the court's language in Graves suggests same.  ("Although this is our first opportunity to assess the reliability of an opinion rendered using the reasoning to the best inference methodology . . . .").  As stated by the court, this analysis is "similar to a differential diagnosis in the medical field where potential causes of the harm are identified and then either excluded or included based on their relative probabilities."  The court cites to Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2004) to provide guidance.  With this approach, experts must provide objective reasons for eliminating alternative causes.  Other possible causes of an accident must be eliminated as "highly improbable," and the cause must be identified as "highly probable."  As stated by the court:

Although the expert need not categorically exclude alternate causes, that does not relieve the expert of his burden to prove the alternate cause is at least highly improbable based on an objective analysis.  We believe this objectivity requirement is consistent with the quality control element of [State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)].

(5) The court is going to give some deference to physicians, even when they may not understand the legal significance of being designated as an "expert."  Plaintiffs named a doctor to opine as to whether the infant in Graves could have been revived if someone heard the alarm.  Although the doctor admitted she did not consider herself a Sudden Infant Death Syndrome ("SIDS") expert, the court found her to be qualified based on the fact that she had thirty years experience as a neonatologist, was current on SIDS literature, and encountered SIDS in her practice.  Furthermore, the recognized again that most doctors do not give scientific testimony.  If the doctor is merely applying his/her knowledge to every day experiences, then s/he does not need to satisfy the standard for reliability in State v. Council. 

(6)  "Res ipsa loquitor...get back in your cell!"  South Carolina still does not accept res ipsa loquitor as a liability theory in products liability claims...period.  Although the court did not use the term, it is pretty clear from its language: "It is well-established that one cannot draw an inference of a defect from the mere fact a product failed."

(7) Finally (and as you have likely realized by now), this decision continues a trend of greater focus on expert testimony by South Carolina's appellate courts.  Beginning with Watson, the appellate courts have really been scrutinizing both whether expert testimony is required for a defect theory and the reliability of any testimony by a proffered expert.  Graves continues this trend.

I welcome any comments.

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New SC Products Liability Decision: Keeter v. Alpine Towers, Int'l

This week, the South Carolina Court of Appeals released its opinion in Keeter v. Alpine Towers International, Inc.  You can find the decision here on page 72 and here.  As you may recall, I blogged about this jury verdict back on June 22, 2009.  (See this post for more information about the verdict).  There is some very important information in this case on how to properly structure a verdict form in a products liability case.

FACTUAL BACKGROUND: Plaintiff Larry Keeter (“Keeter”) fell more than twenty feet from a climbing tower to the ground.  He was seventeen at the time, broke a vertebra, and was rendered a permanent paraplegic.  Alpine Towers (“AT”) originally sold the climbing tower to an amusement park.  Keeter’s high school purchased the tower from the park and hired AT to move it, install it, and train high school faculty to safely use it.  The sale contract identified AT as the “seller.”  The tower’s central safety feature was a “belay system” which utilized four participants and system of pullies to control the ascent/descent of a climber.  As Keeter was climbing, the rope in the belay system became tight.  When someone assisting (the “belayer”) tried to free the rope, she lost the assistance of the belay device, could not control the rope, and Keeter fell. 

PROCEDURE: Keeter and his parents sued for (1) strict liability; (2) negligent design of the climbing tower, and (3) negligence in failing to properly train high school faculty.  (A copy of the Amended Complaint can be found here).  Plaintiffs also filed suit against the belayer for negligence.  Plaintiffs settled with the high school before filing suit and dismissed the belayer before trial.  The jury returned a verdict on each cause of action.  It awarded $500 for strict liability, $900,000 in actual damages and $160,000 in punitive damages for negligent design, and $2,500,000 in actual damages and $950,000 in punitive damages for AT’s negligence in training the high school’s faculty.  The jury also returned a verdict for Keeter’s parents for $240,000 in actual damages.  After hearing post-trial motions, the court required Keeter to elect between his causes of action and ordered that the high school’s settlement be set off against Keeter’s recovery.  Keeter filed a motion requesting the court to enter a cumulative amount rather than requiring him to elect, and the court denied the motion.  The court entered judgment for $2,500,000 in actual damages and $950,000 in punitive damages on the negligent training cause of action.  Both Plaintiffs and AT appealed.

ISSUES: (1) Whether the trial court was in error in denying AT’s directed verdict, post-trial, and new trial motions, including the sufficiency of evidence for all causes of action, whether the chain of causation was broken by intervening and superseding negligent acts, the sufficiency of evidence for punitive damages, and apportionment of fault; and (2) whether the trial court erred in treating Plaintiffs’ verdicts as “three awards” and requiring him to elect his remedy.

DISPOSITION: The South Carolina Court of Appeals (1) affirmed denial of AT’s motions, and (2) reversed the trial court’s interpretation of the jury verdict and remanded with instructions that it enter judgment in Keeter’s favor against AT for $3,400,500 in actual damages and $1,100,000 in punitive damages.

RULES AND OPINION: The first half of the opinion addresses AT’s appeal, which is summarized as follows:

• Strict Liability – There was sufficient evidence that a reasonable alternative design would have prevented Keeter’s fall.  The tower incorporated a device called “Trango Jaws” in the belay system, which relied on the absence of human error to safely belay a climber.  Plaintiff’s experts introduced evidence that a device called a “GriGri” would automatically stop the rope if the belayer lost control and not rely on the absence of human error. 

• Negligent Design – There was sufficient evidence to support a negligent design theory.  Plaintiffs relied on the failure to incorporate the GriGri for this theory, but Plaintiffs also introduced evidence that AT conducted a ten-year study that the majority of accidents on climbing towers resulted from human error and belayers dropping climbers.  Despite this information, AT did not design for human error by incorporating a locking device.  Plaintiff also introduced evidence of breach duty of reasonable care in designing warnings and instructions for the tower.  AT omitted an instruction to have someone within reaching distance of active belay ropes and beside the climber.  There also should have been end user warnings for first-time climbers and belayers.

• Negligent Training – AT did not provide certain materials to high school faculty that it used in other training sessions (i.e., a syllabus).  AT also did not teach faculty supervisors to stand directly behind a belayer and to assist students in avoiding errors.  AT also did not teach the high school to test students’ competency before allowing them to belay a climber.  Therefore, there was sufficient evidence to support a negligent training theory.

• Intervening Causation – “’For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.’”  (Quoting McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 (Ct. App. 2009)).  There was ample evidence to support that the actions of the high school and belayer were foreseeable, and therefore the chain of causation was not broken to insulate AT from liability.  AT knew the high school would be using students as belayers, and their ten-year study informed them of the human error risks.  The same human error that resulted in Keeter’s injury was not only foreseeable by AT, it was actually foreseen.

• Punitive Damages – With regard to Plaintiffs’ claim that AT recklessly designed the tower, there was evidence that AT knew the majority of falls were caused by human error, could have used an alternative design to account for human error, and the cost of the alternative design was inconsequential.  Therefore, this was evidence that AT was “conscious of the probability of resulting injury” from its negligence, and therefore reckless.  With regard to Plaintiffs’ claim that AT was reckless in failing to properly train high school faculty, there was sufficient evidence that AT knew the high school would use student belayers and that they were less attentive and more susceptible to error.  Nevertheless, AT still failed to properly train faculty, did not include certain materials in their training processes, removed certain instructions about where to stand in relation to a climber, failed to teach competency testing, and did not inform the high school of the option of using the GriGri.  This was sufficient evidence of recklessness.

• Apportionment of Fault – Because of the court’s ruling on punitive damages, it was unnecessary to address the issue of apportionment of fault because the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.”  (Quoting S.C. Code § 15-38-15(F)).

The second half of the opinion addresses Plaintiffs’ appeal and election of remedies.  “’Election of remedies involves a choice between different forms of redress afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.’” (Quoting Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996)).  The court pointed out that Keeter asserted three causes of action, but sought only one remedy, i.e., “damages.”  “When a plaintiff seeks only one remedy, there is nothing to elect.”  Therefore, the court held the doctrine of election of remedies did not apply.  The doctrine applies to election of “remedies” and not election of “verdicts.”  The court cited to Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998) as support (and you can see a short summary of that case in this post).

However, the court also cited to the importance of not allowing a double recovery.  To prevent a double recovery, the court must interpret the verdict to determine the jury’s intent.  The court concluded the trial court erred in its interpretation of the verdict to be “three awards” and therefore “inconsistent.”  The error arose with the jury form, which you can find here.  The verdict form was correct in that it required the jury to write its verdict for each cause of action.  However, because Keeter only sought one remedy – damages – and because that remedy could not vary from one cause of action to another, the trial court should have required the jury to write one amount for the damages (and not separate amounts for each cause of action).  “The use of three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.”  To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings to determine what the jury intended.  In reviewing the record, the jury appeared to intend to award a cumulative amount, and it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.  Therefore the court found the jury intended the verdicts to be added together for a total verdict in Keeter’s favor of $3,400,500 actual damages and $1,100,000 in punitive damages. 

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

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

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

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

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

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

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

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

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

           

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

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

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

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More on the Legislative Amendment to Overturn Branham v. Ford

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

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

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

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

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

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

Trial Lawyers Take Tort Reform Hostage

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

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

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

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


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Ten Takeaways from Branham v. Ford Motor Co.

By Brian A. Comer

I'm sure many folks who have stumbled across my site as a result of the Branham v. Ford Motor Co. case are looking at the case "brief" below, and their eyes are glazing over at its sheer length. Trust me, it took awhile to digest the case and write it. So...what's the "meat of the coconut" as a former colleague of mine used to say? Here are my "Ten Takeaways from Branham v. Ford Motor Co."

(1) Where strict liability and negligence are asserted as product liability claims in South Carolina, failure to prove an element that is common to both results in a directed verdict of both. In other words, if you cannot prove the product was defective and unreasonably dangerous for one of the claims, then the other does not survive either. Although there may be circumstances where one of the claims survives, it depends on the basis of the dismissal of the other claim.

(2) There is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. (This is significant to me, as "failure to test" has become a prevalent theory, especially in drug and medical device cases).

(3) As a sports talk radio host that I listen to says, "POWWWWWWWWW!!!!"....the consumer expectations test is GONE in a South Carolina design defect case. The risk-utility test is now the exclusive test, and it requires proof of feasible alternative design. Also, in supporting this holding, the Court cited extensively to the Restatement (Third) of Torts: Products Liability, which opens the door to its adoption in South Carolina.

(4) "The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper." Admission of it is prejudicial.

(5) Although evidence of other incidents must be "substantially similar" and tend to prove or disprove some fact in dispute to be admissible, this issue is not even examined if the evidence is post-distribution evidence (see number 4). If it is pre-manufacture, then the Court will look at whether the data is relevant to an issue, even if the specific cause of the other incident is not known (e.g., comparative rollover data).

(6) You cannot inflame the passion and prejudice of the jury with inadmissible and prejudicial evidence in your closing argument. Period.

(7) If co-defendants are joint tortfeasors under the law, then it is improper to apportion fault on the jury form.

(8) The "harm to others" prohibition is alive and well in South Carolina when it comes to punitive damages. Trying to convince a jury that they should punish a manufacturer for all other injuries/deaths/etc. is forbidden by South Carolina and federal authority.

(9) When it comes to evidence for punitive damages, net worth is the safest harbor. Although admission of extrapolated financial data (down to hourly and daily income) has not been found to be abuse of discretion, the Court indicated there could be a limit to this kind of evidence. Furthermore, if you start getting into compensation of executives, stock options, etc., you are asking for reversal on the basis of prejudice.

(10) Courts have authority to re-align parties at any time and at their discretion.

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New SC Products Liability Decision

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

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

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

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

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

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

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Feasible Alternative Design in South Carolina Products Liability Law

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

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

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

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

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

By Brian Macho

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

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

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

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

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