By Pamela C. Maloney, J.D.
Finding no fault in a South Carolina trial court’s exclusion of expert testimony regarding the inadequacy of passenger seat warnings provided by a personal watercraft manufacturer because the testimony was unreliable, the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s grant of summary judgment on an injured passenger’s defective warning claims and its determination that the manufacturer’s warnings were adequate. The Fourth Circuit also refused to rewrite South Carolina law to allow design defect claims to proceed following a determination that a product seller had provided legally adequate warnings (Hickerson v. Yamaha Motor Corp., U.S.A., February 20, 2018, Agee, G.).
A passenger who was riding behind the driver of a personal watercraft (PWC), designed, manufactured, and distributed by Yamaha Motor Corp., U.S.A. and Yamaha Motor Co., Ltd., was seriously injured in an accident that occurred when the minor child operating the PWC came to a stop and then began to accelerate. The passenger slid off the seat falling directly behind the PWC in close proximity to the jet thrust of the jet drive propulsion system. As a result of the contact with the output pressure from the jet drive, the passenger sustained serious, severe, painful, and permanent injuries. The passenger filed a products liability action against the PWC manufacturers, alleging that the watercraft was defective and unreasonably dangerous for its intended use and that the warning labels on the passenger seat were inadequate. The trial court granted summary judgment favoring the manufacturer on all the passenger’s claims.
On appeal, the passenger challenged the district court’s ruling that the testimony presented by her warning’s expert was unreliable and that without expert testimony, her warning claims failed as a matter of law. The passenger also challenged the lower court’s holding that her design defect claims could not survive as independent claims in light of the determination that the PWC’s warnings were legally adequate.
Reliability of expert testimony. In response to the manufacturer’s motion to exclude the opinions of the passenger’s warnings expert, the district court had ruled [see Products Liability Law Daily’s August 1, 2016 analysis] that the expert’s proffered testimony with regard to the inadequacy of the warnings and his proposed set of alternative PWC warnings was unreliable because his proposed alternative warning system, upon which he had grounded his inadequate warning opinion, was not based on sufficient facts or data, nor was it the result of reliable research, studies, or testing. Instead, the expert apparently had relied on an affidavit provided by another expert in a separate products liability case challenging the adequacy of a PWC warning. In addition, the passenger’s expert admitted that he did not feel qualified to author a warning from start to finish, that he had never authored any articles on warnings, and that he knew of no other PWC manufacturer that provided a warning on the seat similar to the one he had proposed.
This result was affirmed when the issue was revisited by the district court in awarding summary judgment favoring the manufacturer [see Products Liability Law Daily’s August 17, 2016 analysis]. In that opinion, district court rejected the passenger’s argument that even if her expert’s alternative warning system was unreliable, his inadequate warning opinion could rest on his own specialized skill, training, and experiences without any relevant scientific support.
The Fourth Circuit, in affirming the district court’s rulings, agreed that the expert’s opinion with regard to the adequacy of the manufacturer’s warnings was supported only by the affidavit which formed the basis of his proposed alternative warning system. In light of the exclusion of that opinion because it lacked any scientific indicia of reliability, and given the expert’s failure to provide other research, data, or scientific theories to support his opinion on the inadequacy of the existing warnings, the appellate panel found that exclusion of this testimony was appropriate.
Expert testimony requirement. The passenger next argued that the lower court erred in requiring expert testimony to support her defective warnings claims. She contended that the warnings issue was not beyond the jury’s general knowledge and that most jurors would have been exposed to various warnings. However, after noting that expert testimony was the most appropriate form of evidence to support the claim of adequate warnings, the district court went on to determine that once the proffered expert opinions were excluded as unreliable, there was no other evidence in the record to support the claims that the PWC’s warnings were inadequate. According to the Fourth Circuit, the district court did not exclude the passenger’s warnings claims merely because they lacked expert testimony; instead, the lower court required her to support those claims with admissible evidence, which she failed to do.
Adequacy of warnings. As mentioned above, beyond her warnings expert’s excluded testimony, the passenger presented little or no evidence to support her claim that the PWC’s warnings were inadequate. She was not able to refute the manufacturer’s evidence that the Boating Safety Advisory Council and Coast Guard had approved the PWC’s warnings and uniform label. The PWC’s labels clearly warned of the danger of injuries of the type sustained by the passenger and the passenger had admitted that she had not read the warnings on the PWC or those contained in the operator’s manual.
Design defect. The Fourth Circuit also affirmed the lower court’s grant of summary judgment on the passenger’s design defect claims [see Products Liability Law Daily’s December 19, 2016 analysis]. As the district court explained, South Carolina’s Defective Products Act (which codifies the Restatement (Second) of Torts §402A and its comments, including Comment j) provides that a product is not defectively designed or unreasonably dangerous if the seller provides adequate warnings which, if read and followed, make the product safe for use. Arguing that the language of Comment j was ambiguous, the passenger contended that defective design claims were independent of any defective warning claims and that allowing adequate warnings to trump bad design would subordinate design safety to warnings.
Finding no ambiguity in Comment j, the court noted that the South Carolina Court of Appeals repeatedly has applied the plain language of the comment to confirm that an adequate warning operates to "cure" alleged product defects. Prior opinions penned by the Fourth Circuit and the South Carolina federal district courts also have construed Comment j as shielding a manufacturer from liability for product defects if the product contained adequate warnings. Although the state supreme court has not yet applied Comment j to the precise issue in this case, the federal courts were bound to follow the law established by the state’s intermediate courts absent persuasive data that the state high court would rule differently. The passenger presented no persuasive data that the state high court would apply Comment j differently. Given Comment j’s lack of facial ambiguity and the uniform decisions of the state court of appeals, the Fourth Circuit refused the passenger’s invitation to rewrite the comment’s language based solely on her counsel’s academic theories and policy arguments.
The case is No. 17-1075.
Attorneys: David G. Owen (David G. Owen, PA) for Deborah Meek Hickerson. Andrew Walker Barnes (Hood Law Firm) for Yamaha Motor Corp., USA and Yamaha Motor Co., Ltd.
Companies: Yamaha Motor Corp., U.S.A.; Yamaha Motor Co., Ltd.
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