This week, for my triumphant return to the blogosphere, I’m not going to talk about the standard fare of “stupid plaintiff” this or “dumb product” that. Instead, I’ve got a positive message about ingenuity and the virtue of inspired product engineering. I’ve got a message about Bovinova.

For those of you that don’t know, Bovinova is a massive epicurean barbecue hosted right here in Greenville, South Carolina, and it happened not too long ago on May 19. The main event of Bovinova involves a whole cow (minus the head) which is slow-roasted over an open fire for 18 hours, all while a host of goats, pigs, lambs, llama, chickens, and turkeys are being cooked. This year, more than 700 guests were served more than 1,000 pounds of meat, which makes Bovinova the leading cause of acute food coma of any event in South Carolina, including Thanksgiving.

In any event, one of the coolest things about Bovinova is the engineering and design that went into the grilling apparatuses. Instead of roasting the animals rotisserie-style, they are secured to a grilling plane. There are only a few places in the world where whole animals are cooked this way, so there’s not a whole lot of institutional knowledge out there about how to design the grilling surface, how to support the weight of a suspended cow for a long period of time, and how to rotate the cow over the fire so that both sides get heat. Obviously, these are not insubstantial questions. If the grill is designed without these aspects in mind, the cow may fall into the fire, large portions of the cow may not be cooked properly, or worst, one of Bovinova’s patrons may get physically ill from the meat.

However, thanks to some forethought and a lot of planning, the team of guys who built the grill anticipated these concerns at the outset of the design stage and engineered their way into effective solutions. What resulted is a grilling system that makes your charcoal Weber look like an easy bake oven. The entire cow can almost effortlessly be pulled off the fire, flipped 180 degrees, and returned to the fire; it can also be elevated at an angle to allow fat to render more effectively. I’m not going to go so far as to say that this is a “set and forget it” type of assembly; but it’s pretty close. As a consequence of their exceptional craftsmanship, not only are the hosts of Bovinova able to stage the biggest, most unusual cookout you’ve ever seen, more importantly, they’re able to do it in a way that minimizes the risk of injury or liability.

And that’s why Bovinova is my new favorite holiday.

Recently, our home state of South Carolina hosted the Family Circle Cup, a WTA tennis tournament.  The Charleston, South Carolina event featured 80 of the top female tennis players in the world competing for the title.  We here at Abnormal Use were on hand to report on the tournament.  You must be thinking what place a torts blog has at a professional tennis tournament.  Admittedly, in the beginning, we were wondering the same thing ourselves.  Shortly into the event, however, we realized the event was full of product liability news – only this time we were the unreasonably dangerous product, metaphorically speaking.

The Cup taught us that we can be unreasonably dangerous.  Our presence at the event was harmful to a number of the world’s top tennis players, and we have the following evidence to prove it:

• Exhibit 1: Friday morning, we were greeted by (or shared a hotel elevator with) World No. 9 ranked player Vera Zvonerava.  Several hours later she was upset in straight sets, 6-3, 6-3.
• Exhibit 2: Saturday morning, we had breakfast with (or sat in the same room as) surprise semi-finalist, Polona Hercog.  Later that day, she was double-bageled, 6-0, 6-0.
• Exhibit 3: Saturday night, we ran into Lucie Safarova in the hotel lobby.  The next day, she was destroyed in the final by Serena Williams, 6-0, 6-1.

We have always believed that we were bad luck charms for our favorite teams.  Our attendance at sporting events always seems to result in losses for whoever we throw our support.  At the Family Circle Cup, we didn’t have a dog in the fight, so we thought all players were safe.  Looking at the evidence, however, can lead to only one reasonable conclusion – our bad luck is far-reaching.

Some may argue that losses are due to our teams’ lack of talent and not the result of our presence.  While that may be the case with the Charlotte Bobcats, how else can we explain the upset loss of a Top-10 player after sharing an elevator with us?  If we aren’t “defective,” why would players who have been playing tremendous tennis get shut out in the rounds that followed our encounters?  Shutouts rarely happen in professional tennis even in some of the largest mismatches.

Under a res ipsa theory, we may be in trouble.  Our unreasonably dangerous presence is the only way to explain these players’ losses.  Combine that with the admissions made in this blog and Zvonerava, Hercog, and Safarova have a good prima facie case against us.  So, do us a favor.  Don’t alert these players to their potential claims.  While you’re at it, you may want to take some steps to keep us away from your favorite players as well.

The topic of preemption comes up regularly in our posts, because it is such an important issue in products liability litigation.  As you can imagine, most of the cases come out of the drug context – the design, manufacture, and labeling of prescription drugs, so heavily regulated and controlled by the Food and Drug Administration, makes the drug industry a perfect forum to litigate preemption issues in products cases.

Recently, the U.S. District Court for the District of South Carolina heard a case in which the primary issue was preemption.  In Fisher v. Pelstring, et al., No. 4:09-cv-00252, 2011 WL 4552464 (D.S.C. Sept. 30, 2011), the court considered the case of William Fisher, who was diagnosed with a neurological condition after taking the generic version of a prescription drug used to treat acid reflux that was manufactured by a company called PLIVA.  Mr. Fisher and his wife brought medical malpractice causes of action against the doctor who prescribed the drug, as well as products liability causes of action against Pliva and two makers of the prescription brand of the drug, including strict liability, breach of express warranty, negligent misrepresentation, breach of undertaking special duty, fraud and misrepresentation, and constructive fraud.

There is something very important to note about the labeling of prescription drugs versus the labeling of generic drugs, as the court noted in its decision.  Brand name manufacturers are responsible for “the accuracy and adequacy of [a drug’s] label,” meaning that they must go through the expensive and lengthy process of getting FDA approval for its label.  Generic manufacturers, on the other hand, are only responsible for making sure that the label they use is the same as the one used for the brand-name drug.

The plaintiffs argued that PLIVA failed to adequately warn consumers of the risk of neurological disease on its label, and that such a failure constituted a violation of state products liability laws.  Now, while the Fisher case was moving along, the U.S. Supreme Court was considering the case of PLIVA, Inc. v. Mensing, —U.S.—, 131 S. Ct. 2567 (2011).  In Mensing, the Court sided with PLIVA, which argued that if it were to unilaterally change its label to comply with state law as the plaintiffs in that case argued, it would violate federal law as prescribed by the FDA.

Good news for PLIVA in the Fisher case, right?  Well, it would have been, except for the fact that the plaintiffs were able to show that PLIVA’s generic label did not comply with the label on the brand name drug, and that the correct label would have warned the consumer to limit use of the drug to 12 weeks.  As the court noted, “[o]nce the FDA approved the addition of these warnings to the [brand-name] label, PLIVA has not indicated that any federal law prevented PLIVA from also adding these warnings to its generic . . . products.”

Based on this fact, the district court denied PLIVA’s motion to dismiss based on preemption.  The court did, however, base its decision to grant summary judgment for PLIVA on several causes of action on preemption analysis, including the causes of action for design defect, breach of express warranty, negligent misrepresentation, breach of undertaking a special duty, fraud and misrepresentation, and constructive fraud.

Every spring, our firm scrounges together a group of attorneys and staff members to play in a local Co-Ed Law Softball League.  Despite our stationary profession, some of us have maintained the athletic prowess of our youth and resemble actual softball players.  Others (including me), simply try our best to finish each game without suffering serious injury.  The games are meant to develop camaraderie both within the firm and the local bar.  However, when you bring a group of lawyers together, you should expect a certain level of competitiveness.  Diving catches.  Head-first slides.  Home plate collisions.  Whatever it takes to win.  But what happens when a “winning play” results in injury to your competitor?  With this many lawyers on the field, certainly someone can develop some theory of liability.  But will it be successful in a court of law?  Recently, our very own South Carolina Supreme Court handed us down some guidance on the issue.

In Cole v. Boy Scouts of America, No. 27072 (S.C. Dec. 5, 2011), the Court addressed a challenging recreational softball game.  The plaintiff and his son participated in a pick-up softball game during a Boy Scout camping trip.  Despite the fact that the score was not being kept officially, some of the fathers were playing “aggressively” and hitting the ball with “full swings.” Gasp.  During one such play, the defendant, attempting to score from second base, collided with the plaintiff, who was blocking home plate.  As a result of the collision, the plaintiff suffered a closed head injury and spent two days in the intensive care unit.  Thereafter, the plaintiff and his wife, personally and as guardian ad litem for their son, sued the Boy Scouts of America, the local Pack, and the defendant for personal injury, loss of consortium, and negligent infliction of emotional distress.  The defendant moved for summary judgment on the grounds that he owed no duty to the plaintiff because the plaintiff assumed the risks incident to the sport of softball.  The circuit court agreed, and the Supreme Court affirmed the decision.

On appeal, the plaintiff argued that the defendant’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive.  While we wish the Court would have used the opportunity to discuss the interrelatedness of sport and competitiveness and the horrors of non-score keeping, the Court opted for a more tactful approach.  The Court indicated that a risk inherent in sport can be found at any level of play possibly more so in a non-professional arena where the players are less skilled and athletic.  Whether or not the plaintiff was keeping score, he was still playing softball, which the court deemed a “contact sport.”  Accordingly, by playing softball, the plaintiff assumed the risks inherent to the sport, including home plate collisions.

So what should we take from this opinion?  First, according to our Supreme Court, recreational softball, like professional football, is a contact sport.  Second, keeping a softball game “non-competitive” will not affect the legal analysis.  Third, catchers are open targets, so long as you keep your conduct within the “scope of the game.”

We doubt the average softball player is considering his legal duty as he barrels towards a catcher blocking the plate.  But just in case he was wondering, he can take solace in the fact hat the Court respects the game.  Unlike the NFL, the Court is not going to penalize a player for conduct natural to the game itself.  Even if home plate collisions violated some over-protective rec league softball rule, the Court noted that rule violations themselves are inherent to the sport.

The South Carolina Supreme Court has implemented a new electronic attorney registration program, called the Attorney Information System (AIS).  Starting this week, each licensed  South Carolina attorney and foreign legal consultant will receive materials from the Chief Justice containing information on this new endeavor. It is expressly designed to pave the way for electronic filing in the state court system in the future. For now, the DUI law firm serving Manassas requires all South Carolina attorneys and foreign legal consultants to register over a secure web portal and provide updated contact information to the Court going forward. Based on the article source the receipt of the aforementioned correspondence (which includes an initial user name and password), attorneys should follow the instructions, use the login information contained in the letter to log into the system, check one’s  personal information, and note any changes to be made. These steps must be taken by November 18, 2011 as per the terms of the Supreme Court’s order on this matter. Caveat: any attorney who fails to  log in before license renewal will not be permitted to renew. To see the court’s order and news release, click here.

Late last month, the South Carolina Supreme Court amended its Rules of Professional Conduct to address several lingering issues related to lawyer advertising. The amended Rules are meant to be consistent with the ABA Model Rules of Professional Conduct.  You can read them here. The amendments delete the previous ban on testimonials, eliminate a mandatory solicitation filing requirement and fee, and add requirements for electronic solicitations.

Specifically, advertisements for legal services can now include testimonials IF the ad specifically identifies that the statement is a testimonial, discloses whether or not it was paid for by the lawyer or law firm, and if it was made by an actual client.  Most importantly,  the ad must “clearly and conspicuously” state that the any result achieved in one case “does not necessarily indicate similar results” in another.   Sounds like a really long commercial.  Right?

For a full summary of the new rules, check out blogger Greg Forman’s recent post on the subject here.  He does a great job of laying it out for us.

In the meantime, here is a brief update on what is happening in other states on similar issues:

Florida –  On May 27, 2011, the Florida Bar proposed new rules for attorney advertising which would also allow for the use of some testimonials. See here.

Virginia – Virginia State Bar’s Standing Committee on Legal Ethics has issued proposed amendments to their Rules of Professional Conduct and seeks comments by September 14, 2011.  That’s next week! For a summary of those changes, click here.

Michigan – On July 19, 2011, the Michigan Supreme Court rescinded its previous order that amended that state’s Rules of Professional Conduct and proffered these new amendments. They also provide for a comment period which ends November 1, 2011.

Here’s the deal: the rules have not changed THAT much.  Things have just been clarified a little and updated to include web advertisements and electronic communication.  The same rules of thumb still hold true.  If a statement is a lie, or even stretching the truth, you probably shouldn’t put it in an advertisement pushing your legal services.  You also shouldn’t make any promises or guarantees.  Oh, and keep it classy.  Like this.

As you may have heard, our own state of South Carolina finally passed a long awaited (or long dreaded depending on your side of the fence) tort reform act.  They call it . . . . . The South Carolina Fairness in Civil Justice Act of 2011, and the new law contains a punitive damages cap. Although it is most certainly a step in a direction, this blogger is still unsure which direction that is.

Here’s what the Punitive Damages section of the Act says with regard to caps:

Punitive damages will be capped at 3 times compensatory damages OR $500,000, whichever is greater.

UNLESS

1. The wrongful conduct was motivated by “unreasonable financial gain” and the person in charge knew of or approved the “unreasonably dangerous” nature of the conduct that was highly likely to result in injury;  (Ummmm.  What?)

OR

2.  The wrongful conduct COULD subject the Defendant to a felony conviction;

THEN

Punitive damage will be capped at 4 times compensatory damages OR $2 Million, whichever is greater.

UNLESS

1.  The Defendant  intended to harm;

OR

2.  The Defendant pled guilty to or was convicted of a felony arising out of the same act;

OR

3. The Defendant acted while under the influence of alcohol, drugs, glue, aerosol, or other toxic vapor;

THEN

No cap.  (Glue huffers be damned.)

So, when exactly are the punitive damages capped at at three times compensatory damages or $500,000? When exactly does the motive for financial gain become unreasonable?  When it motivates a tortious act?  We expect to see many a law dog sparring over what is reasonable or unreasonable financial gain. Ah, more issues to be heavily litigated.

Also interesting is the requirement, in the 4 times compensatory/$2 million category, that the person in charge knew OR approved “the unreasonably dangerous nature of the conduct,” which had (has?) a “high likelihood of (causing) injury.”  So, could he approve it but not know that it was unreasonably dangerous with a high likelihood of causing harm?

The new Act takes effect in January of 2012.  We’ll be certain to keep you posted.

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.

Judgment reversed.

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.

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.

If there is one thing we here at Abnormal Use take seriously, it’s college football. Among our writers and contributors and fellow lawyers here at Gallivan, White, & Boyd, P.A., we boast fans of the University of South Carolina, Clemson, Notre Dame, and the University of Texas.  When the autumn arrives, you can rest assured that we are talking stats and plays when we are not otherwise toiling or blogging. But, dear readers, imagine our dilemma! We here are perpetrators of a legal blog dedicated to the discussion of products liability! Rarely, if ever, are we permitted to discuss football on these fair pages!  But the fates have smiled upon us! The South Carolina Court of Appeals recently issued an opinion dealing with the contentious issue of football stadium parking which, though not exactly related to products liability, is important enough to bring to your attention.

Last week, The State reported on a family of South Carolina Gamecock fans who sued the University of South Carolina after the university began charging them a hefty $595 for their three parking spots near the fabled Williams-Brice Stadium.  The family alleged that they were entitled to free parking by virtue of a $140,000 donation they made in 1987 for a Lifetime Silver Spur membership in the Gamecock Club.  The family had parked for free for nearly twenty years until the school began charging for the privilege in 2007.  The university attributed the change to its efforts to raise money in order to compete with the facilities of other Southeastern Conference members.

Enter the courts. Following the Rosens’ suit against the university, the trial court granted the university’s motion for summary judgment on the grounds that the relevant written contract was not ambiguous and failed to identify any of its listed privileges as “free.”  The trial court also found that as lifetime members, the family, by virtue of its $140,000 donation, only received the “benefit” of maintaining their donor level with the Gamecock Club.  During the final week of June, in an unpublished opinion, the South Carolina Court of Appeals reversed, holding that the contract was ambiguous on the parking issue, primarily due to the family’s 20-year history of free parking. See Rosen v. University of South Carolina, No. 2011-UP-331 (June 27, 2011) (unpublished). In so doing, the Court of Appeals, in an opinion authored by Justice Huff, noted:

At oral argument, the University urged this court to consider that the Rosens paid for football tickets, including the increases in football ticket prices, as the “customs, practices, [and] usages” of the Gamecock Club.  In considering the payment of ticket prices, we must also consider that during the same time period, the Rosens were not required to pay for the parking spaces.  Exhibit A [of the contract, which listed the benefits and priorities the Rosens received] made no distinction in the language used describing the tickets and parking spaces.  It neither stated additional charges would apply or that the benefits would be free.  When considering “the customs, practices, [and] usages” of the Gamecock Club that despite similar language, the members paid for tickets but did not pay for parking, we find the contracts to be ambiguous as to the parking issue.

The unpublished opinion drew a concurrence and dissent from Justice Pieper, who agreed with the court on the parking issue but not on an unrelated – and far less interesting – beneficiary issue.

We here at Abnormal Use must commend our Court of Appeals.  If anyone is willing to pay $140,000 for the privilege of attending college football games, they probably deserve some benefit. (There’s got to be some equitable Latin phrase from jurisprudence echoing that sentiment, right?). Whatever the case, the college football season officially begins in just a month and a half, and we’ll have to resist the urge to blog about that most important of subjects when September arrives.