Case Brief: Samson v. Greenville Hospital System

Today's case brief is for a very brief (i.e., two pages) case, Samson v. Greenville Hospital System, 297 S.C. 409, 377 S.E.2d 311 (1989).  The case involves whether "blood" is a product for strict liability purposes.

FACTUAL BACKGROUND: Plaintiffs alleged Helen Samson contracted the AIDS virus from a blood transfusion given to her while she was a patient at a hospital.  297 S.C. at 409-10, 377 S.E.2d at 311.  Plaintiffs also alleged the blood was supplied by a blood center that colected, stored, and distributed blood received from donors.  Id.

PROCEDURE: Plaintiffs alleged a cause of action for strict liability against the distributing blood center.  297 S.C. at 410, 377 S.E.2d at 311.

ISSUE(S): The United States District Court certified a question to the South Carolina Supreme Court regarding whether blood is a product for purposes of a strict liability claim.  297 S.C. at 410, 377 S.E.2d at 311-12.

DISPOSITION: Blood is not a "product" for purposes of a strict liability claim.  297 S.C. at 409, 411, 377 S.E.2d at 311, 312.

RULES AND OPINION: The court cited to the strict liability statute at S.C. Code  § 15-73-10 (1976) and its application to products, not services.  297 S.C. at 410, 377 S.E.2d at 311.  The statute's plain language does not address whether blood is a product for purposes of strict liability.  Id.  Therefore, the court had to assess whether the South Carolina State Legislature intended for blood to be a product or service and looked to earlier legislation dealing with blood to answer this question.  297 S.C. at 410, 377 S.E.2d at 311-12.

The court cited to S.C. Code  § 44-43-10 ("Applicability of implied warranties of merchantability and fitness"), which states as follows:

The implied warranties of merchantability and fitness are not applicable to a contract for the sale, procurement, processing, distribution, or use of human tissues including, but not limited to, corneas, bones or organs, whole blood, plasma, blood products, or blood derivatives. Human tissue, whole blood, plasma, blood products, and blood derivatives must not be considered commodities subject to sale or barter, and the transplanting, injection, transfusion, or other transfer of these substances into the human body are considered a medical service.

Id. at 410-11, 377 S.E.2d at 312.  Based on this language, the court held that the Legislature did not intend for blood to be classified as a product.  Id. at 411, 377 S.E.2d at 312.  "Furthermore, this construction is consistent with the underlying purpose of the blood shield statute [S.C. Code § 44-43-10], namely, to facilitate a readily available supply of blood by limiting liability to defects resulting from negligence."  Id.

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Do I Have to Have an Expert to Bring a Products Liability Action in South Carolina?

As an update to this post, please see this post and also this post.  In Graves v. CAS Medical Systems, Inc., the South Carolina Supreme Court provided further guidance on the role of expert testimony in a South Carolina products liability case.  As explained more fully in the posts linked above, the court basically took a case-by-case approach to expert testimony in design defect cases and seemed to back off of the language in Watson v. Ford Motor Co. and 5-Star, Inc. v. Ford Motor Co., which are discussed below.

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Recently, I was spinning my wheels on the necessity of expert testimony in a products liability case and whether there is a case -- on point -- in South Carolina that requires it.  As context, I have never known a products liability case to not include expert testimony.  Furthermore, I have seen plenty of parties get summary judgment when they successfully excluded the opposing party's expert.  The reason I was spinning my wheels about it is because sometimes these somewhat "obvious" points of law do not have a case that actually points out the obvious.  (A good example is that it was not until the Branham v. Ford Motor Co. 390 S.C. 203, 701 S.E.2d 5 (2010) case that our state appellate court definitively set forth the necessity of proof of feasible alternative design in a design defect case.  There was state court case law suggesting it, and our federal district court had indicated that state law would require it.  Furthermore, in my experience, all plaintiffs presented such evidence.  However, there was nothing on point by our state appellate court saying you had to have it in state court.  That finally changed with Branham, at least for a design defect case.)

So, I decided to look this point up.  Generally, the admission of expert testimony is governed by South Carolina Rule of Evidence 702, which sets forth as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

This would clearly appear to apply to a products liability case.  After all, if a plaintiff is arguing that a product has a design or manufacturing defect, then articulating the nature of the defect would seem to fall outside the realm of ordinary lay knowledge. 

Two fairly recent cases affirmed my hunch.  I recently briefed 5-Star, Inc. v. Ford Motor Co.,  2011 WL 3568546 (Aug. 10, 2011 S.C. Ct. App.) and forgot that it addressed this issue.  5-Star involved allegations that a negligently designed speed control deactivation switch in a Ford truck caused a warehouse fire.  The South Carolina Court of Appeals set forth the following with regard to the necessity of expert testimony in a products liability case:

In order to gain more than this limited understanding of the operation of the switch, and in particular, in order to understand whether 5 Star met its burden of proving that the design of the switch was negligent in 1996, a jury, the trial court, and this court on appeal would need the benefit of expertise in several subjects that are not included in this record. In other words, this is precisely the type of “design defect claim” our supreme court recently stated “necessarily involve[s] sophisticated issues of engineering, technical science, and other complex concepts that are quintessentially beyond the ken of a lay person.” Watson, 389 S.C. at 444, 699 S.E.2d at 174. When the plaintiff in a product liability case bears the burden of proof as to any issue within a subject matter beyond the common knowledge and understanding of lay jurors, that plaintiff must present expert witness testimony in order to meet its burden. 389 S.C. at 445, 699 S.E.2d at 175 (“Expert testimony ... is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge.”).  Because 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.

Id. at *4 (emphasis added). 

The "Watson" case cited by the court is Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010).  Watson involved a vehicle rollover case where the plaintiff alleged the cruise control system and seatbelts were defective.  The court in Watson had this to say about expert testimony in a products liability case:

Expert testimony may be used to help the jury to determine a fact in issue based on the expert's specialized knowledge, experience, or skill and is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge. Stated differently, expert evidence is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge. Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge or may base his opinion on information made available before the hearing so long as it is the type of information that is reasonably relied upon in the field to make opinions. See Rule 703, SCRE. On the other hand, a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training. See Rules 602 and 701, SCRE.

389 S.C. at 445-46, 699 S.E.2d at 175 (empasis added).  The court applied this law to exclude certain expert testimony and reverse the jury's verdict against Ford in the trial court.

So, with all of that, I am satisfied.  Although it is not as easy as finding a case that says "all products liability cases require the testimony of an expert," the guidance provided in 5-Star and Watson certainly suggests that products liability cases involve technical and specialized subject matter that fall outside the realm of ordinary laypersons.  For that reason, you need an expert.

I welcome any comments if your experience has been different either in South Carolina or elsewhere.

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What I've Been Up To

Well, it has been like drinking water from a fire hose here lately at the South Carolina Products Liability Law Blog.  As I indicated in a previous post, the last couple of months have been very busy, and my apologies for not having a more consistent blog schedule.  I have finally come up for air, and I look forward to some posts again very soon.

As I indicated in my prior post, I did a presentation on South Carolina tort reform to the Palmetto Paralegal Association on October 7, 2011.  The presentation was well-received, especially when I talked about the entire "Branham" issue that reared its head in the midst of the debate of the bill (and ultimately was not part of the final legislation). 

I am now tailoring this presentation (albeit a much briefer version) for presentation at a breakout session at the SCDTAA Annual Meeting.  I have been working with Frances Zacher and Ashley Cuttino to basically plan a joint breakout session for the products liability and torts/insurance substantive committees.  We plan to include a brief presentation by me on the "nuts and bolts" of the tort reform bill, and then a panel discussion with input from members of our judiciary about how it will affect case administration.  Frances and Ashley are going to lead this discussion and moderate, and we hope that it gives attending members the opportunity to learn more about the legislation and what it means for administration at the trial level (i.e., bifurcation of liability and punitive damages, etc.).

Finally, I attended the Primerus annual conference this past weekend in Charleston, South Carolina.  Collins & Lacy, P.C. is a proud member of the Primerus network of law firms, and the annual meeting included lawyers from all across the country.  There were some interesting presentations, and I was thoroughly impressed by a presentation conducted by Bob Weiss at Alyn-Weiss & Associates, Inc. in Lakewood, Colorada.  Bob presented the results of eight different studies on legal marketing, and some of what he found was very, very interesting.  Specifically, he reviewed some statistics of how counsel is chosen by clients and how it has changed over the years as a result of social media and the internet.  In short, the days of getting mileage out of a yellow pages ad are over (although he gave a caveat that it may still be relevant to a plaintiff's practice).  Surprisingly, studies indicate that "Youtube" and "Wikipedia" are pretty significant tools that counsel -- even in-house counsel -- use to choose counsel.  And as Bob put it, "That's right...youtube and Wikipedia."  Who knew. 

Anyway, thanks for your patience, and I hope to post some new, more substantive, products liability posts here in the next week.

"Uncle!" a/k/a "Thank you sir may I have another!"

Aye, yaye, yaye...it has been over a month since my last post.  My sincere apologies.  The last month has been a busy one here at the South Carolina Products Liability Law Blog with many depositions, work on various files, out of town travel, and other matters.  I hope to get back on a more consistent blog schedule soon. 

In terms of what is going on with me (outside of quite a bit of work per the above), I am speaking on October 7, 2011 at the Palmetto Paralegal Association Annual Seminar here in Columbia on the subject of tort reform and the bill passed by the South Carolina General Assembly and signed into law by Governor Haley. 

Along with other SCDTAA members, I am planning a panel discussion of this same topic for the South Carolina Defense Trial Attorneys Association Annual Meeting November 3-6, 2011 at Amelia Island (i.e., as part of the "breakout" section for the Products Liability Substantive Law Committee).

Finally, I will be attending the 2011 Primerus Annual Conference, which is being held right here in South Carolina in Charleston on October 20-23, 2011.  Primerus is an international society of the world’s finest independent boutique law firms, and Collins and Lacy, P.C. is a proud member. 

There is quite a bit going on as we head into the last quarter of 2011.  Check in soon for more updates and substantive legal discussion of South Carolina products liability law.

New SC Products Liability Case: 5 Star, Inc. v. Ford Motor Co.

Recently, the South Carolina Court of Appeals issued its decision in 5 Star, Inc. v. Ford Motor Company.  You can find the opinion on page 120 here, and also here.  This is a negligent design defect case, and the court basically re-affirms that a negligence theory requires conduct evidence.

FACTUAL BACKGROUND: Plaintiff 5 Star, Inc. (“Plaintiff”) is a lawn maintenance/pressure washing company.  It bought a 1996 Ford F-250 pickup truck in February 2005.  In September 2005, Plaintiff’s owner parked the truck in a warehouse containing tractors, trailers, lawnmowers, and other business equipment.  Upon returning a couple of days later, Plaintiff’s owner discovered a fire had occurred.  Although there were no personal injuries, the truck was destroyed and the building and certain equipment was severely damaged.  Before the lawsuit and before Ford could inspect the truck, Plaintiff’s owner had the truck towed and crushed.

PROCEDURE: Plaintiff filed a products liability action against Ford Motor Co. ("Ford") alleging that negligence in the design of a speed control deactivation switch in the truck caused the fire.  Ford asked the circuit court to dismiss the case as a sanction for spoliation of evidence.  The circuit court declined but instructed the jury that it could draw a negative inference from Plaintiff’s actions.  Ford moved for a directed verdict at the close of Plaintiff’s case and at the end of trial, both of which were denied.  The case was submitted to the jury exclusively on the claim of negligent design.  The jury returned a verdict for $41,000 in actual damages.

ISSUE(S): (1) Whether the circuit court erred in declining to dismiss the action as a sanction for Plaintiff’s spoliation of evidence; (2) whether the circuit court erred in denying Ford’s motion for a directed verdict based on a lack of evidence that Ford was negligent in design of the speed control deactivation switch.

DISPOSITION: The court did not reach the question of whether the circuit court abused its discretion in ruling on the motion to dismiss based on spoliation, citing to Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591, 598 (1999) and its recognition that an appellate court need not address remaining issues when resolution of one issue is dispositive.  (See footnote 2).  With regard to denial of Ford’s directed verdict motion, the court reversed the jury verdict and entered judgment in favor of Ford.

RULES AND OPINION: In addition to the three elements common to all products liability claims, a plaintiff asserting a negligent design theory must prove that the defendant manufacturer’s conduct in designing the product breached its duty of due care.  Ford argued on appeal that Plaintiff failed to present such conduct evidence, or to present evidence that the product was in essentially the same condition as when it left the defendant (i.e., one of the three common elements).  (The court did not discuss whether the product was in essentially the same condition for the same reason that it did not address spoliation).

Instead, the court focused on Plaintiff’s failure to present evidence of negligent conduct in the design of the product on or before the time of manufacture.  The court elaborated on how a negligence theory is different in that “’[t]he focus [in a negligence action] is upon the action of the defendant.  The mere fact a product malfunctions does not demonstrate the manufacturer’s negligence.”  Quoting Sunvillas Homeowner’s Ass’n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct. App. 1990). 

Ford conceded the switch was defective.  However, Plaintiff was obligated to offer evidence that Ford’s conduct was negligent.  Plaintiff failed to offer any evidence of Ford’s conduct whatsoever.  Neither the City Fire Investigator witness nor Plaintiff’s cause and origin expert testified to any events at or before the manufacture of the truck and switch.  Furthermore, neither witness was qualified as an expert in automotive design or other expertise so as to enable them to offer opinions on whether Ford’s conduct was negligent.  The only other witness who could have provided conduct testimony was a desgn analysis engineer for Ford.  He was qualified as an a vehicle fire cause and origin expert, but he offered no conduct facts/opinions, and Plaintiff's counsel did not ask him any questions relating to Ford's conduct in designing the switch that occurred in 1996 or earlier.

In short, the court held that Plaintiff failed to present expert testimony to prove that Ford was negligent in its design of the switch in 1996.  Therefore, the circuit court erred in not directing a verdict in favor of Ford.  The court distinguished its opinion from the holding in Duncan v. Ford Motor Co., 285 S.C. 119, 128, 682 S.E.2d 877, 881 (Ct. App. 2009) because the plaintiff in Duncan presented expert testimony concerning Ford's conduct.  (See footnote 4). 

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Drilling Down: Implied Warranty of Fitness for a Particular Purpose a/k/a The Stiletto Heel Warranty

You are probably wondering why there are pictures of a red stiletto heel and a hiking shoe at the beginning of this blog post.  Although you may not realize it, the contrast in function and use of these shoes provides the perfect example of this particular warranty.  How?  Read on, as we drill down a bit on the implied warranty of fitness for particular purpose.

The implied warranty of fitness for particular purpose is set forth in S.C. Code § 36-2-315.  It states:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modfied under the next section (§ 36-2-316) an implied warranty that the goods shall be fit for such purpose.

So what exactly does this mean?  Official Comment 2 provides some guidance.  A particular purpose differs from an ordinary purpose for which goods are used because it envisages a specific use by the buyer that is peculiar to his/her business.  "For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains."  (S.C. Code § 36-2-315, Off. Cmt. 2).

So imagine this hypothetical: Gisele Bundchen walks into a shoe store and says, "Tom and I were thinking about getting away this weekend for a hike somewhere...maybe on the Appalachian Trail.  Can you give me some shoes for that?"  Overwhelmed by her beauty, the merchant automatically reaches for a pair of fire engine red stiletto heels and gawks as Gisele tries them on.  Speechless, he hands her the change as she buys the heels and heads out the door. 

If Gisele breaks a heel and her ankle while on her hiking trip, then she may have an action for breach of implied warranty of fitness for particular purpose against the seller.  Why?  Because she conveyed to him a very particular purpose for which she needed some gear, and it was different from the ordinary purpose for which shoes are generally used (i.e., walking on ordinary ground). 

Obviously, this is an oversimplification of a cause of action for breach of this implied warranty.  However, you get the point.  This implied warranty contemplates -- as its name suggests -- a very specific purpose for the product.  Whether this warranty arises is basically a question of fact determined by the circumstances of the contracting.  The buyer does not necessarily have to prove knowledge of the particular purpose or reliance thereon by the buyer if the circumstances are such that the seller has reason to know of the purpose or reliance.   (S.C. Code § 36-2-315, Off. Cmt. 1).

This really is not known as "The Stiletto Heel Warranty" (and you probably figured out by now that I made that up).  However, it helps me remember how this implied warranty differs from ordinary use encompassed by the implied warranty of merchantability.

Have a nice weekend all.

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Case Brief: Soaper v. Hope Industries, Inc., 309 S.C. 438, 424 S.E.2d 493 (1992)

Today's Case Brief is for Soaper v. Hope Indus., Inc., 309 S.C. 438, 424 S.E.2d 493 (1992).  Soaper involved a color film processor and printer, and it is significant because it illustrates a merger of “fitness for particular purpose” with the warranty of merchantability under its facts.

FACTUAL BACKGROUND: Plaintiff purchased a color film processing machine from Defendant for use in his fast photo business.  309 S.C. at 439, 424 S.E. 2d at 494.  The machine malfunctioned over a period of three years, and Plaintiff ultimately had to close his business.  Id.

PROCEDURE: Plaintiff sued Defendant alleging (1) breach of express warranty, (2) breach of the implied warranty of merchantability, and (3) breach of the implied warranty of fitness for particular purpose.  309 S.C. at 439, 424 S.E. 2d at 494.  At trial, Plaintiff proceeded solely on the cause of action for breach of implied warranty of fitness for a particular purpose.  The jury returned a verdict for Plaintiff for $84,783.40 (i.e., the full value of the machine and its component parts).  Id.  The South Carolina Court of Appeals affirmed, finding ample evidence that "the goods were defective so as to be unfit for their intended use in Soapers fast photo business."  306 S.C. 531, ----, 413 S.E.2d 38, 40 (Ct. App. 1992).  Defendant sought rehearing, which the Court of Appeals denied.  309 S.C. at 439, 424 S.E. 2d at 494.  The South Carolina Supreme Court granted certiorari on the issue sought for re-hearing by Defendant.  Id.

ISSUE(S): "Does a purchaser establish a warranty of fitness for a particular purpose when goods, purchased solely for their ordinary purpose, are found to be unfit for any and all purposes?"  309 S.C. at 439, 424 S.E. 2d at 494.

DISPOSITION:  "[W]here a product is not fit for any purpose, it is not fit for its particular purpose.  Accordingly, the Court of Appeals opinion is affirmed as modified."  309 S.C. at 441, 424 S.E.2d at 495.

RULES AND OPINION: The implied warranty of fitness for a particular purpose arises under the Uniform Commercial Code, S.C. Code section 36-2-315 (1976).  309 S.C. at 439, 424 S.E. 2d at 494.  Defendant maintained that this warranty applies only when the buyer has a particular purpose for a product other than its ordinary/contemplated use.  Id. at 440, 424 S.E.2d at 494.  The court recognized that there was authority for this position but declined to follow it.  Id., 424 S.E.2d at 495.  The court referred to comment 2 to section 2-315, which states that "a contract may of course include both a warranty of merchantability and one of fitness for a particular purpose."  Id.  Section 2-317 also requires that warranties arising under the UCC "be construed as consistent with each other and as cumulative."  Id. 

When Plaintiff purchased the product, he made known to Defendant that his particular purpose for the machine was fast film developing.  Id. at 441, 424 S.E.2d at 395.  When it failed in that purpose, it was both unmerchantable and unfit for its particular purpose.  Id.

We hold that, where the particular purpose for which a product is purchased is also the ordinary or intended purpose of the product, the warranties of merchantability and of fitness for a particular purpose merge and are cumulative, such that a plaintiff may proceed upon either theory. 

Id. at 440, 424 S.E.2d at 495.  This holding accords with other jurisdictions.  Id. at 441, 424 S.E.2d at 495.

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Passing of the Honorable Matthew J. Perry, Jr.

I was saddened to learn of the passing of U.S. District Judge Matthew J. Perry, Jr. over the weekend.  Approximately one year ago to the day, I tried a products liability case before Judge Perry that lasted a couple of weeks.  During that time, I had the opportunity to get to know Judge Perry, see him interact with the attorneys and the jury, and generally watch him run his courtroom.  He was a true gentleman and an icon in South Carolina's history.  I saw him again a few months ago while shopping for groceries and had the opportunity to reminisce with him about our case and how he was doing. 

Judge Perry had an almost "regal" air about him.  He was a delight to be around, but also had the ability to strike fear in even the most seasoned lawyer with his booming voice and his ability to get his point across in as few words as possible.  I cannot say that I knew him "well," but I feel lucky to have had a chance to try a case before him toward the end of his storied career.  He will be missed.