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Tort/Negligence – Warnings expert properly excluded

Holding: A products-liability plaintiff’s proffered warnings expert could not be qualified on the basis of his own personal reasoning, and the plaintiff’s failure to read appropriate warnings defeated her design-defect allegations.

Background

Appellant Deborah Meek Hickerson sustained serious internal injuries in a personal watercraft accident in 2012. The Yamaha watercraft involved in the accident had on-craft warnings that advised riders to wear wet suits to avoid internal injuries, which can occur if a rider falls off the craft near the jet-thrust nozzle. The watercraft’s owner’s manual also warned that only three people may ride at a time, that the operator should be at least 16 years old, and that a person should not ride after consuming alcohol.

At the time of the accident, Hickerson was the fourth passenger on the watercraft, which was driven by a 10-year-old at the time. She had consumed alcohol prior to riding and had not read any on-craft or manual warnings. After the accident, she sued Yama, asserting various products-liability claims based on inadequate warnings and defective design. The court granted summary judgment to Yamaha, and Hickerson appealed.

Qualified expert

Hickerson sought to introduce expert testimony that the watercraft’s existing warnings were inadequate and that alternative warnings should have been used. The district court excluded the expert’s alternative-warning opinion as unreliable and, after determining that his inadequacy opinion was based on his now-excluded alternative-warning opinion, excluded his inadequacy opinion as well. Hickerson challenges only exclusion of the inadequacy opinion.

The expert had not tested his inadequate warning opinion and had no research to support his contention that passengers read a seat warning more often than glove-box or rear-craft warnings. Even his opinion that the wetsuit depicted in the on-craft warnings should be black rather than white was based solely on his personal recollection that he had never seen a white wet suit. His own testimony established that his opinions lacked the markers of reliability that Federal Rule of Evidence 702 and the Daubert standard require to prevent an expert from misleading a jury with unproven conjecture.

Contrary to Hickerson’s argument, the district court did not require her to support her warnings claims with expert testimony, which it then excluded. After its Daubert analysis, the court looked for other warnings evidence in the record but was unable to identify other evidence to create a triable issue of fact. The district court properly required Hickerson to support her warnings claims with any admissible evidence to survive summary judgment, and Hickerson simply failed to do so.

Defective design

Because her claims of defective warnings failed, Hickerson also could not assert a defective-design claim. South Carolina has codified § 402A of the Restatement (2d) of Torts and embraced the comments thereto as expressing its legislative intent. The parties dispute the application of comment j: “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

Although Hickerson contends that comment j’s practical effect (unintended by South Carolina lawmakers) is to allow good warnings to overcome bad design, both this court and South Carolina’s appellate courts have repeatedly interpreted comment j to shield a manufacturer from liability for product defects if the product contains an adequate warning. This court will not rewrite the unambiguous text of comment j in contravention of the uniform decisions of the South Carolina Court of Appeals based on Hickerson’s policy arguments. The court concludes that comment j means what it says and, in this case, functions to cure the Yamaha watercraft’s alleged design defects.

Affirmed.

Hickerson v. Yamaha Motor Corp. USA (Lawyers Weekly No. 001-039-18, 17 pp.) (Agee, J.) No. 17-1075; Feb. 20, 2018; DSC at Anderson (Childs, J.) David G. Owen and Austin Fletcher Watts for Appellant; Richard Alan Mueller for Appellees. 4th Cir.

 


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