There is no question that South Carolina’s appellate courts are taking a harder look at expert testimony in products liability actions. They’re looking not just at who’s qualified to be an expert, Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010), but also, the subject matter experts may address, Jackson v. Bermuda Sands, Inc., 677 S.E.2d 612 (S.C. Ct. App. 2009). Just last week, the court of appeals issued an opinion in 5 Star, Inc. v. Ford Motor Company, No. 4862 (S.C. Ct. App. Aug. 10, 2011), which addresses when expert testimony may be required.
We here at Abnormal Use have completely plagiarized the court’s account of underlying facts for your convenience. Here you go: “5 Star is a lawn maintenance and pressure washing company owned by Stan Shelby. In February of 2005, 5 Star bought a 1996 Ford F-250 pickup truck with 227,000 miles for $1,500.00. On September 24, 2005, Shelby parked the truck for the weekend in 5 Star’s North Charleston warehouse, which also housed tractors, trailers, lawn mowers, and other equipment related to the business. When Shelby returned two days later he discovered that a fire had occurred. The truck was destroyed, and the building and several other pieces of equipment were severely damaged. There were no personal injuries. Before suit was filed and before Ford was given an opportunity to inspect the truck, Shelby had the truck towed from his property and crushed.”
Here’s a few additional facts taken from the opinion. Apparently, “the most significant damage to the building was directly above the truck’s engine compartment, which indicated . . . that the engine compartment was the area of origin of the fire.” Furthermore, “the only thing that will produce heat” in the engine compartment when the vehicle is not being operated is the speed control deactivation switch. “[This] switch serves as a mechanism to deactivate the cruise control when the driver presses the brake pedal. The switch is wired into the brake light circuit, which, for safety reasons, must remain energized at all times. Keeping this circuit energized allows the brake lights to be illuminated by pressing the brake pedal even when the vehicle is turned off. The switch is ‘redundant,’ meaning it serves as a back-up in case the primary deactivation switch malfunctions.”
Due to the constant flow of electrical current, the switch can get hot. Apparently, a fuse is connected to the switch, which is tripped at 15 amps of electrical current. This is designed to prevent the switch from overheating. However, the switch was only rated to handle 2 amps of electrical current. This means there’s a range of 13 amps of current above the switch’s rating but below the fuse’s trigger that can course through the switch uninterrupted. “The allegedly defective quality of the switch is that it allows brake fluid, which is flammable, to remain in dangerous proximity to the energized electrical circuit [which, as we’ve just discussed, can get hot], separated only by a thin membrane.” Oh, and by the way, “Ford concede[d] the switch was defective.”
The case was tried in September 2008. The jury returned a verdict of $41,000.00 in actual damages for 5 Star. And everyone lived happily ever after — until 10 days later when the appeal was filed.
On appeal, the court focused on whether 5 Star presented any evidence that Ford had breached its duty to exercise reasonable care in designing the switch / fuse system, which is necessary in products cases based on design defects. The court held that “5 Star not only failed to present any evidence that Ford’s conduct in designing the switch was negligent, 5 Star failed to present any evidence of Ford’s conduct whatsoever.” The court further held that a directed verdict should have been entered for the Ford Motor Company.
In a footnote, the court stated that 5 Star did not brings claims against Ford under strict liability or breach of warranty. We don’t want to play Tuesday morning quarterback, but including those claims probably would have been game-changers.
There’s one thing that prompts some curiosity. The court held that “[b]ecause 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.” But under the facts of this case, was expert testimony really necessary? If 5 Star’s theory was that Ford should have used a different switch, or a different fuse, or should not have routed a constant electrical current through the switch, certainly, expert testimony on those matters would be appropriate. But we’re not convinced that 5 Star’s theory was that complicated. Based on our reading of the facts, 5 Star’s theory seems to have been very simple: Ford designed a system that allowed brake fluid to be in close proximity to a heat source; brake fluid is flammable; the combination of heat and fuel caused a fire that destroyed 5 Star’s truck. If this was Plaintiff’s theory, again, was expert testimony really necessary?
In a different, but comparable context, the court of appeals has previously held that reasonable people of ordinary prudence should know that ladders conduct electricity, Anderson v. Green Bull, Inc., 471 S.E.2d 708 (S.C. Ct. App. 1996), that using golf carts at night is dangerous, Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500 (S.C. Ct. App. 2009), and that using watercraft near swimmers can endanger the swimmers’ lives, Dema v. Shore Enters., Inc., 435 S.E.2d 875 (S.C. Ct. App. 1993). If people are assumed by law to have these types of knowledge, then wouldn’t the law also assume that the average person of ordinary prudence also knows that exposing flammable liquids to heat can cause fire? If the law would impose that knowledge on natural persons, then wouldn’t it also impose that knowledge on corporate persons? And if the matter were truly within the ambit of common sense, then why would expert testimony be necessary — even admissible — on the matter anyway?
Don’t get us wrong. We appreciate the court’s invigorated efforts to rein in expert testimony, which is too often manipulated and abused. And we also appreciate Ford Motor Company’s nearly single-handed efforts to finance the litigation that is clarifying the law of expert testimony in South Carolina. We’re just watching and waiting to see if this decision will get taken up to the Supremes.