September 26, 2017
Under South Carolina law, a products liability case may be founded in several theories, including warranty. Regardless of the chosen theory, however, a plaintiff must establish (1) he was injured by the product; (2) at the time of the accident the product was in essentially the same condition as when it left the hands of defendant; and, (3) the injury occurred because the product was in a defective condition unreasonably dangerous to the user. Regardless of the theory, competent expert testimony is required to establish the defective and unreasonably dangerous condition of the product as well as the proximate cause of injury.
Sitting in diversity jurisdiction, our district court recently visited the issue of expert testimony required in a products liability case. Green v. The Bradley Company and HMU, LLC, 2017 WL 401229 (September 9, 2017). In Green, HMU sold The Bradley Company (TBC) remanufactured systems furniture stations for office installation. TGI, a purchaser of a number of these furniture stations experienced issues with the top of the desk assembly moving from underlying cantilevers. Upon TGI’s complaint, HMU inspected each workstation at TGI’s facility and made corrections to a significant number of them. Thereafter, Plaintiff, an employee of TGI, was sitting at her furniture station when the work surface collapsed on her legs, causing injury. Plaintiff filed suit in the Court of Common Pleas for Richland County asserting causes of action in negligence, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose. HMU removed the case to district court then moved to dismiss the action. Upon reconsideration, the motion to dismiss as to the negligence claim was granted. HMU then filed its initial Motion to Exclude the testimony of Plaintiff’s expert arguing that because neither the desk at issue nor an exact replica were available for inspection, the expert could not demonstrate the desk in question was defective nor any other essential elements of Plaintiff’s claims.
Considering Defendant’s motion, the court acknowledged its awareness of the indeterminate product defect test, a principal found in the Restatement (Third) of Torts: Products Liability. This theory applies where the destruction of a product prohibits an expert from performing the analysis necessary to determine causation. In such instances, it allows an inference that a product was defective where the harmful incident was of a kind that ordinarily occurs as a result of a product defect and was not solely the result of causes other than a defect existing at the time of sale or distribution. Recognizing South Carolina has not adopted the Restatement (Third) of Torts: Products Liability, the court expressed awareness it has, on occasion, embraced it. In consideration of the indeterminate product defect test coupled with the opportunity for additional discovery, the court denied the Defendant’s Motion to Exclude and for Summary Judgment, without prejudice. Upon the close of discovery, HMC filed its subsequent Motion to Exclude the testimony of Plaintiff’s expert and its second Motion for Summary Judgment. In support of its Motion to Exclude, HMU argued the expert testimony offered by the Plaintiff was inadmissible because it did not meet the requirements of Rule 702; specifically, (1) it would not help the trier of fact understand the evidence or determine a fact in issue; (2) the testimony was not based on sufficient facts or data; (3) the testimony was not the product of reliable principles and methods; and, (4) the expert failed to reliably apply any principles or methods to the facts of the case.
Defendant also argued the indeterminate product defect test should not be applied inasmuch as it has not been adopted in SC nor has SC adopted the similar theory of res ipsa loquitur. Defendant further asserted even if the indeterminate product defect test was applicable, the expert testimony was insufficient, as it did not rule out other causes for the failure of the desk. Plaintiff argued, in opposition, even though she lacked evidence concerning the specific furniture station in question, she should be allowed to rely on the malfunction theory doctrine. This theory would allow her to utilize circumstantial evidence to establish an inference that the product was probably defective.
In its analysis of the parties’ arguments, the court succinctly foreclosed the use of malfunction theory because it would act as an impermissible state law limitation on expert qualification requirements established by Daubert and the Federal Rules of Evidence.[i] Rather, the court affirmed expert testimony was required and had to be evaluated pursuant to Daubert and Rule 702.
Pursuant to Daubert, in assessing the admissibility of expert testimony, the court first evaluates whether it is reliable and relevant. In determining reliability, the court as gatekeeper may consider a number of factors, including whether a theory or technique can and has been tested or subjected to peer review and publication. In evaluating relevance, the court must determine if the expert testimony is sufficiently linked to the facts of the case to assist the jury in revolving a factual dispute. The threshold question is whether the testimony will assist the trier of fact.
Upon initial consideration of the qualifications of Plaintiff’s expert, the court acknowledged a sufficient pedigree of education and experience to offer expert testimony. Critically, however, the only theory the expert definitively offered was that Plaintiff’s injuries were a result of the failure of the furniture station’s work surface, an opinion offered without explanation of the methodology upon which it was based. At best, the expert offered only speculative possibilities as to the cause of the desk collapse. Consequently, Plaintiff failed to meet her burden of establishing the admissibility of her expert’s testimony.
In support of its holding, the court explained that even though strict application of the Daubert factors is not expected in the context of expert engineering testimony, the court nevertheless could not conclude the proffered testimony satisfied any Daubert factors. Because the expert failed to provide the principles and/or methodology upon which his opinions were based, the court could not conduct the requisite analysis of those factors. Accordingly, the court found the expert’s testimony was not sufficiently reliable to satisfy either Rule 702 or Daubert, and therefore, his testimony was excluded. Without the expert testimony required to establish the essential elements of Plaintiff’s products liability claim, summary judgment was proper.
Litigants take note: while there is a great deal of similarity between the South Carolina and the Federal Rules of Evidence, the applications thereof and resulting conclusions may differ significantly. Federal law unquestionably controls the admissibility of evidence in federal court. Here, the essence of Plaintiff’s argument was state law supersedes “the Federal rules of Evidence where, as here, products liability claims, destruction of physical evidence, causation, and expert testimony converge.” The Fourth Circuit has rejected that argument, finding that state law, whatever it may be, is irrelevant. If you find your products liability case within federal jurisdiction, which it is likely to be, carefully examine the Federal Rules of Evidence and use them accordingly.
[i] Because the theories are substantially similar, the court presumed the Fourth Circuit would reject the indeterminate product defect test on the same basis as it has rejected the malfunction theory.
Cheryl D. Shoun is a trial attorney and certified mediator whose experience includes construction law, insurance defense, personal injury defense, employment litigation and medical malpractice.