Congratulations to the University of South Carolina Fighting Gamecocks, 2010 College World Series Champions!!!

I'm an avid college baseball fan and received three degrees from the University of South Carolina, so although it has absolutely nothing to do with products liability, I cannot resist a congratulatory post after our team won its first National Championship in a major sport last night in a 2-1, 11th inning victory over UCLA at the College World Series, the last game in historic Johnny Rosenblatt stadium. We came out of the "loser's bracket" to win 6 straight games and clinch a championship.

Our opponents may want to consider a products liability claim against their bat manufacturers. Our pitching was dominant. Great job guys, and congratulations!

Case Brief: Koester v. Carolina Rental Center

By Brian A. Comer

Today's case brief is Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). Koester is a short case that focuses on proximate cause (i.e., foreseeability) and application of S.C. Code section 15-73-20 in a products case.

FACTUAL BACKGROUND: Defendant Carolina Rental Center ("Defendant") rented tree climbing equipment to climbers. 313 S.C. at 492, 443 S.E.2d at 393. However, Defendant did not include with the rental equipment a device (a "lanyard") that prevents the climber from falling away from the tree. Id. The reason for the omission was that Defendant feared liability if the device became worn and broke during use. Id. Instead, Defendant instructed consumers to purchase a rope. Id. Plaintiff was using the rental equipment when a knot is his rope gave way, and he fell 50 feet. Id., 443 S.E.2d at 394.

PROCEDURE: Plaintiff sued for negligence, breach of warranty, and strict liability. 313 S.C. at 492, 443 S.E.2d at 394. Defendant moved for summary judgment, which was granted by the trial court and affirmed by the South Carolina Court of Appeals at Koester v. Carolina Rental Center, Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993). Id. Plaintiff petitioned the South Carolina Supreme Court for writ of certiorari to review the Court of Appeals' decision. Id. The South Carolina Supreme Court granted the petition. Id.

ISSUES: Did the appellate court err in affirming summary judgment for Defendant?

DISPOSITION: Yes. Reversed.

RULES AND OPINION: The court reviewed the standard for summary judgment and then reviewed Plaintiff's first ground for error (relating to whether his own negligence was the proximate cause of his injuries). 313 S.C. at 493, 443 S.E.2d at 394. "The touchstone of proximate cause in South Carolina is foreseeability. Foreseeability is determined by looking to the natural and probable consequences of act complained of." Id. (citing to Young v. Tide Craft, 270 S.C. 453, 462, 242 S.E.2d 671, 675 (1978)). From the evidence in the case, Defendant knew that some of their renters did not understand the equipment, knew that a rope created a risk that a knot could fail or the rope could break, and knew that experienced climbers would not climb without the safety lanyard. Id. From this evidence, it was reasonably foreseeable that a climber would be injured using a rope instead of a lanyard. Id. Therefore, the appellate court erred in finding as a matter of law that the slipping of Plaintiff's knot was the sole proximate cause of his injuries. Id.

The appellate court also erred in finding that Plaintiff's claim was barred by S.C. Code section 15-73-20 ("If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."). Id., 443 S.E.2d at 493-94. Plaintiff attempted to use the product in the manner intended by Defendant, and therefore whether his use was unreasonable was a question of fact for the jury. Id. at 494, 443 S.E.2d at 394-95.

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

Drilling Down: Proving the Duty to Warn

By Brian A. Comer

Although I have never made it official, I have been doing a series of posts on warnings as a result of some research I have done lately for a case. It started with an analytical framework for warnings, followed by some commentary on the duty to warn and the "obvious risk" posed by cell phone use while driving, and then a more detailed post on when the duty to warn arises.

As stated in a prior post, Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971) supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43.

The question that follows is: how does a plaintiff prove this duty in the context of a manufacturer seller? A plaintiff must produce evidence from which a jury can conclude that a manufacturer or seller has reason to believe that a warning is necessary. Livingston v. Noland Corp., 293 S.C. 521, 525, 362 S.E.2d 16, 18-19 (1987) (holding that supplier and manufacturer had no way of knowing and no reason to foresee that failed refrigerator compressors would be unreasonably dangerous unless a warning was provided). Gardner also addressed this issue by discussing the means by which to determine foreseeability and whether a duty to warn arises. As stated by the court:

Where the issue is one of foreseeability, evidence of what has actually been experienced in the same or comparable situations constitutes proof of the greatest probative value. The only other way foreseeability can be proved is by expert testimony and in most instances it, too, will depend upon actual experience developed by laboratory or everyday experience.

Id. at 244. In this context, the court in Gardner determined that depositions and complaint letters of other product users who had similar experiences with the hair rollers at issue were admissible to show the manufacturer’s knowledge of the problem. Id. The court also believed that certain expert testimony should have been admitted to show the nature of the danger. Id.

Gardner's analysis correlates with my own experience in warnings cases concerning the method of proof. There are multiple sources of information that should be reviewed to determine if there is an actual or potential risk with a product, creating a duty to warn:

• Interviewing manufacturer and/or seller representatives about the product and whether there was any knowledge of an actual or foreseeable risk, and when the individuals had this knowledge. From an efficiency standpoint, this is usually my first source (if I represent the manufacturer/seller).
• After interviews, reviewing internal company documents relating to prior incidents involving the product and the risk at issue, adverse event reports (in drug/medical device cases), testing of the product (and their results), memoranda and emails concerning any risks with the product, and other documents. This is typically where a plaintiff is trying to find a "smoking gun" where the manufacturer or seller indicates knowledge of a potential issue.
• Review of non-company documents and information, such as scientific literature concerning the product, case reports in literature of the potential risk at issue, trade literature, information from any regulatory bodies (FDA, CPSC, etc.), recall information, etc. Evaluating this information is important because even if there was not anything in the company documents or interviews to indicate knowledge of a potential risk, these sources can inform as to whether the company should have known of a potential risk. Although it may vary depending on the jurisdiction, companies frequently are held to the standard of being an "expert," meaning they are expected to know about the most current literature and findings concerning their product.
• Interviews and consultation with industry and scientific experts. These individuals, in my experience, usually provide their opinion -- putting together all of the above information -- as to whether there was a duty to warn.

These sources only focus on the duty to warn, and not the adequacy of the warning (which involves other sources of information that should be reviewed, and other kinds experts, including regulatory and human factors experts). Furthermore, the above list is certainly not exhaustive by any means. However, whether there was a duty to warn can be a simple issue (e.g., warning that a surface is hot) or a contentious one (whether a pharmaceutical manufacturer should have warned of a potential, disputed risk in its labeling), and all this information is important with regard to proving any duty to warn.

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

Okay, one more try.

So my test post revealed that my feedburner function is not working. So I "resynced" it (whatever that means) and hopefully it will now. Unfortunately, it requires yet another test post.

Test Post and Feedback

Sorry for this, but I need to do a test post, as I think that my subscriber function may not be sending out updates.

While I'm at it, if anyone has suggestions for the site, please comment. Always looking for ways to improve it.

State Settlement with Pfizer

I missed this when it ran, but stumbled across it when looking for recent verdicts, settlements, etc. The below ran in the Post and Courier on April 3, 2010, and while it lasts you can find it here. I have cut and pasted the article below.

------------------

Pfizer, S.C. settle dispute over off-label promotions

By MEG KINNARD • Associated Press • April 3, 2010

COLUMBIA, S.C. — South Carolina is to receive $11 million under an agreement with Pfizer Inc. over the company's disputed sales tactics for certain drugs, double the amount the state said Friday it would have gotten under a multistate deal struck last year.

Under the deal finalized Thursday and confirmed by Pfizer, the New York-based pharmaceutical giant also is to give South Carolina more than $1.5 million in medications for use in its free clinics.

In September, federal prosecutors hit Pfizer with $2.3 billion in fines over what they called the improper promotion of drugs -- including painkiller Bextra and the schizophrenia medicine Geodon -- that included plying doctors with free golf, massages, and resort junkets.

Use of drugs for so-called "off-label" medical conditions is not uncommon, but manufacturers are prohibited from marketing drugs for uses that have not been approved by the Food and Drug Administration. Prosecutors said junkets and other company-paid perks were designed to promote the drugs to doctors for unapproved uses and dosages, backed by false and misleading claims about safety and effectiveness.

Bextra, for instance, was approved for arthritis, but prosecutors had said Pfizer promoted it for acute pain, and in dosages above the approved maximum. In 2005, Bextra was pulled from the U.S. market amid mounting evidence it raised the risk of heart attack, stroke and death.

In addition to a $1.2 billion criminal fine, the company also agreed to pay $1 billion in civil penalties, the Justice Department said in September. Of that amount, $331 million was to be split among 49 states and the District of Columbia.

South Carolina Attorney General Henry McMaster -- who is seeking his state's Republican nomination for governor -- sparked controversy when that deal was announced, saying he had opted out of the multistate agreement to pursue his own case against Pfizer to seek a better deal for the state.

That gamble seems to have paid off.

McMaster spokesman Mark Plowden says the state would have gotten about $5.5 million if it had participated in the multistate deal, according to a formula set by the court system.

In a statement, Pfizer acknowledged no wrongdoing and said it was pleased with the deal.

Under the individual agreement, South Carolina is getting a combined $12.68 million in money and prescription drugs. Plowden said the deal has been a year in the making.

It will take South Carolina about a month to receive the money, which Plowden said will go to the state's Medicaid coffers and state health care plan.

Happy Easter!

Happy Easter to any followers of the South Carolina Products Liability Law Blog!

I will be attending the DRI Products Liability Committee meeting this week in Las Vegas, Nevada (details here). I am flying in on Tuesday, staying for all of the conference, and staying a couple of extra days to see and enjoy Las Vegas with my wife, who is joining me.

If anyone else will be attending, please let me know! I would love to have the opportunity to meet you.

Drilling Down: The Duty to Warn

By Brian A. Comer

I have been doing some research on South Carolina warnings law lately, and now is as good a time as any to provide some further explanation on this area of products liability law. I always enjoy cases involving warnings, primarily because I never cease to be amazed at how different sides of the bar can have totally divergent views on whether a specific warning is "adequate."

No South Carolina state court (that I have found) explicitly sets forth when the duty to warn arises in a products liability case. However, in Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971), the Fourth Circuit Court of Appeals provided extensive guidance on the duty to warn in an appeal of a South Carolina products liability action arising in diversity, and the South Carolina Supreme Court cited to Gardner’s rationale in its negligent failure to warn analysis in Livingston v. Noland Corp., 239 S.C. 521, 362 S.E.2d 16 (1987). Gardner supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43; Livingston, 293 S.C. at 525, 362 S.E.2d at 18.

Gardner involved the ignition of hair rollers when the water in which they were heating boiled out of the pot. Id. at 240-41. After putting the rollers on the stove to heat, the user fell asleep in the bathtub. Id. at 241. The resulting fire substantially destroyed the apartment building, and the building owner sued the hair roller manufacturer to recover his losses. Id. at 240. One of his theories for recovery was that the manufacturer’s warning about the flammability of the rollers was inadequate. Id. The warning at issue stated as follows: “Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe.” Id. at 241.

The district judge granted a directed verdict in favor of the manufacturer on grounds that the hair rollers were not “inherently dangerous.” Id. at 240. Therefore, the manufacturer had no duty to provide a more extensive warning than the one provided. Id. On appeal, the Fourth Circuit rejected the district judge’s focus on the inherent danger of the rollers as the determinative factor for the manufacturer’s duty to warn. Id. at 242. Instead, the court suggested that the duty to warn arises if a supplier and manufacturer “(a) . . . know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, [and] (b) they lack reason to believe that the user will realize the potential danger. . . . “ Id. at 242 (citing Restatement (Second) of Torts §§ 388 and 295 (1965)). The court elaborated that the duty is determined through an analysis of foreseeability, and it cited to Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) as the applicable South Carolina law. Gardner, 448 F.2d at 242-43. The court quoted from Mickle as follows:

Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold: thus he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risk of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured.

Id. (quoting Mickle, 252 S.C. at 233, 166 S.E.2d at 187).

Using this framework, the court determined that a jury could conclude that a momentary interruption that results in water boiling away is so common that the manufacturer should have foreseen that it could occur while its product was being used. Id. at 243. The court also concluded that a jury could find that the manufacturer knew or should have known that the heat to which the product would be subjected during those occasions could exceed the normal ignition point of the hair roller’s contents. Id. Therefore, the court concluded that the jury could have found that there was a duty to warn of these risks. Id.

I will continue to post on when the duty to warn arises as I continue to research warnings law. However, from my research to date, no other case summarizes when the duty arises better than Gardner.

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